{
  "id": 11274887,
  "name": "J. M. McGEE and wife v. DAVID FOX et al.",
  "name_abbreviation": "McGee v. David",
  "decision_date": "1890-09",
  "docket_number": "",
  "first_page": "766",
  "last_page": "769",
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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    {
      "cite": "104 N. C., 481",
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      "reporter": "N.C.",
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  "last_updated": "2023-07-14T15:31:37.064200+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "J. M. McGEE and wife v. DAVID FOX et al."
    ],
    "opinions": [
      {
        "text": "Davis, J.\nafter stating the facts: The appeal was taken Saturday, February 2d, the last day of the term. The plaintiffs\u2019 case on appeal was served Friday, February 8th, following. Counsel for appellees, moved to dismiss the appeal upon the grounds\u2014\n\u201c 1. That the case on appeal was not served upon appellees within the time provided by law, more than five days having elapsed from the termination of the Court at which the cause was tried before any case was served.\n\u201c2. For that appellants\u2019 appeal bond is defective, in that the justification of the sureties is not for double the amount of the bond given.\u201d\nAs to the first ground, counsel was not advertent to chapter 161 of the Acts of 1889, amendiug section 550 of The Code, and extending the time from five days to ten. Walker v. Scott, 104 N. C., 481.\nAs to the second ground, no written notice to dismiss was given, as required by chapter 121 of the Acts of 1887, and the motion cannot be entertained. Jones v. Slaughter, 96 N. C., 541.\nThere was .no objection to the issue submitted, no exception to evidence and no written prayer for instructions, and that verbally asked for by plaintiffs\u2019 counsel in his address to the jury was substantially given.\nThe evidence was conflicting, and we can see no error in the charge of his Honor in relation thereto.\nThe plaintiffs moved for a new trial because, some overflow having been admitted, the Court should have instructed the jury to return at least nominal damages. No such instruction was asked for; the evidence, as has been said, was conflicting, and the admission in the answer was accompanied with qualifications and denials, and it was in the discretion of his Honor to grant or refuse a new trial, the evidence upon both sides having been submitted to the jury upon an issue of fact presented in the exact language of the issue in Hester v. Broach, 84 N. C., 251, the plaintiffs\u2019 evidence tending to show damages and that of the defendant none.\nCounsel for appellant cite Wright v. Stowe, 4 Jones, 516, for the position that his Honor should have instructed the jury that the plaintiffs were entitled at least to nominal damage. In that case it is said, \u201c If the water be, in fact, ponded back upon the plaintiff\u2019s land, he will be entitled to recover at least nominal damages,\u201d and his Honor below erred in instructing the jury that the plaintiff in that case \u201cwould not be entitled to nominal damages.\u201d No such instruction was given by his Honor in the present case, but all the evidence was submitted to the jury upon the proper issue, and they found that the plaintiffs had sustained no damage, and the judgment was in accordance with section 1862 of The Code.\nNo error.",
        "type": "majority",
        "author": "Davis, J."
      }
    ],
    "attorneys": [
      "Mr. D. M. Fur ches, for plaintiffs.",
      "Mr. B. Z. Linney, for defendants."
    ],
    "corrections": "",
    "head_matter": "J. M. McGEE and wife v. DAVID FOX et al.\nCase on Appeal, Time of Serving \u2014 The Code-Motion to Dismiss \u2014 Damages for Ponding Water \u2014 Off-set and Counterclaim for Benefits \u2014 Nominal Damages \u2014 Judge\u2019s Charge\u2014 New Trial.\n1. The Code, \u00a7550, as amended by chapter 161, Laws of 1889, extends the time for serving case on appeal from five to ten days.\n2. A motion to dismiss appeal for insufficient bond will not be entertained, unless after written notice, as required by chapter 121, Acts of 1887.\n8. In an action for damages for ponding water back on plaintiff\u2019s land, he asked for instructions to the jury that defendants could not set up as off-set and counter-claim any benefit which plaintiff had received thereby. The Court so charged, but added that the jury should, upon all the evidence, ascertain if plaintiff had sustained any damage: Held, there was no error.\n4. In such action, a motion for a new 'trial for failure of the Court to instruct the jury to return at least nominal damages, because some overflow was admitted, it appearing that no such instruction was asked, that the admission was qualified and the testimony conflicting, and that there was evidence to show that no damage was actually done, was properly refused in the discretion of the Court.\nThis was a civil ACTION to recover alleged damages for ponding water back on plaintiffs' land by the erection of a mill-dam, tried before Clark, J., at January Term, 1889, of the Superior Court of Alexander County.\nThe plaintiffs allege, in substance,'that the defendants have a mill-dam on Middle Little River on their own land, below the lands of the plaintiffs, and caused the water to pond back upon and sob valuable bottom land belonging to them, thereby destroying its value, for which they demand damages.\nThe defendants answering, admit the erection of the mill-dam and that a small portion of the plaintiffs\u2019 land, less than an acre, is subjected to overflow thereby, but they deny that any injury to said land is caused by the erection of the dam, but, on the contrary, they insist, for the causes set out in the answer, that the plaintiffs\u2019 land is benefited and improved by it.\nThe following issue was submitted: \u201cWhat is the amount of annual damage done to the plaintiffs by reason of the erection of the defendants\u2019 dam?\u201d To which the answer was, \u201c Nothing.\u201d\nThere was conflicting evidence, that of the plaintiffs tending to show damages caused by the overflow and sobbing of the land, and that of the defendants tending to show that there was, in fact, no damage, but that, in truth, plaintiffs\u2019 land had been benefited.\nThere were no exceptions to evidence.\nThere was no written prayer for instructions, but plaintiffs\u2019 counsel in his address to the jury asked the Court to charge that if any part of plaintiffs\u2019 land had been benefited by the ponding back of the water from defendants\u2019 dam, this benefit did not belong to defendants and they could not set this up as a counter-claim to offset the damage plaintiffs had sustained. The Court charged that the defendants could not set up as a counter-claim any benefit; if any, which plaintiffs may have received by such ponding back, but the jury, upon all the evidence of plaintiffs and defendants, should ascertain if plaintiffs had sustained any damage, and if so, how much; if no damage had been sustained, then to so find. The issue as set out in the record, was submitted without objection. The jury made the findings thereon as set out in the record.\nMotion by plaintiffs for new trial, alleging as error the instructions above given and the failure to give instructions asked. Motion denied.\nMotion for new trial, because, some overflow having been admitted, the Court should have instructed jury to return at least nominal damages.\nThe Court being of opinion that under section 1862 of The Code, a verdict for nominal damages of one cent would only carry one cent cost, denied the motion. '\nThere was judgment for defendants, and an appeal by plaintiffs.\nMr. D. M. Fur ches, for plaintiffs.\nMr. B. Z. Linney, for defendants."
  },
  "file_name": "0766-01",
  "first_page_order": 802,
  "last_page_order": 805
}