#### D. S. SMITH v. H. C. WHITLEY et al.

(Filed 24 November, 1926.)

Appeal by defendants from Stack, J., at February Term, 1926, of Stanly. No error.

Action to recover damages for trespass upon land. Defendants allege that such acts as they committed on the land described in the complaint were lawful by reason of their ownership of the minerals in said land, under a reservation in the deeds in plaintiff’s chain of title. The issues submitted to the jury were answered as follows :

1. Did the defendants enter upon and commit trespasses upon the land of the plaintiff, as alleged in the complaint ? Answer: Yes.

2. If so, what damages, if any, is the plaintiff entitled to recover of defendants ? Answer: $200.

From judgment upon this verdict defendants appealed to the Supreme Court.

No counsel for plaintiff.

Hartsdl & Eartsell, B. L. Smith & Son for defendants.

*826Pee Cublam.

Defendants’ assignments of error upon this appeal cannot be sustained.

Plaintiff is seized in fee and in possession of tbe land described in tbe complaint, subject to tbe rights of defendants; defendants, by virtue of reservations in deeds under wbicb plaintiff owns said land, own tbe minerals in same. Defendants went upon tbe land and did tbe various acts thereon as alleged in tbe complaint. Tbe jury upon competent evidence has so found. Under a charge wbicb is free from error, such acts, or some of them, were found by tbe jury to constitute trespasses upon tbe rights of plaintiff. Tbe damages were assessed by tbe jury, upon sufficient evidence, under instructions wbicb are well sustained, both upon principle and by authoritative decisions of this Court. Tbe judgment is affirmed. There is

No error.