#### EPHRIAM M. GRAY et al. v. DUKE POWER CO.

(Filed 3 February 1950.)

Appeal and Error § 31b—

Where a verdict might well have been directed for appellee upon an issue answered by the jury in its favor, any errors in the trial of the issue are perforce harmless.

Ervin, J., took no part in the consideration or decision of this case.

Appeal by plaintiffs from Rousseau, J., July Term, 1949, of McDowell.

Petition for partition.

The petitioners claim one-half undivided interest in an 80-aere tract of land situate on the waters of the Oatawba River in McDowell County above the dam and hydroelectric power plant of the Duke Power Company.

The respondent, Duke Power Company, denied that it was a tenant in common with the petitioners, and pleaded sole seizin, first, by virtue of *424superior title deeds, and, secondly, by adverse possession for more than twenty years.

Tbe controversy was submitted to tbe jury on tbe following issues:

“1. Did tbe petitioners, E. M. Gray, O. E. McFarland, Lillie Adams, Albert Branch, Martba G. Dobson, Etta G. Edwards, Pless Gray, James C. Gray, Marie Jaynes, Dorothy T. Teague, and tbe respondent J. H. Gray acquire and become tbe owners of a one-balf undivided interest, as tenants in common in tbe lands described in tbe petition, as heirs at law of W. R. Gray, deceased, with tbe respondent Duke Power Company or its predecessor in title ? Answer: Yes.

“2. Have tbe respondent Dube Power Company and its predecessors in title acquired title in fee simple to said one-balf undivided interest by adverse possession, as alleged in tbe answer? Answer: Yes.”

There was a directed verdict for tbe petitioners on tbe first issue, and tbe jury answered tbe second issue in favor of tbe respondent, Duke Power Company, after a warmly contested trial.

From judgment on the verdict, tbe petitioners appeal, assigning numerous errors on tbe trial of tbe second issue.

William O. Chambers and William J. Cocke for petitioners, appellants.

W. S. O’B. Robinson, W. B. McGuire, Jr., and Proctor & Dameron for respondent, Duke Power Co., appellee.

Stacy, C. J.

A careful perusal of tbe record leaves us with tbe impression that as tbe trial court might well have directed a verdict for tbe respondent, Duke Power Company, on tbe second issue, any errors committed on tbe trial of this issue are perforce harmless.

Nevertheless, an examination of tbe record reveals that no new or novel question of law is presented by any of tbe exceptions, and that they fall well within tbe decided cases on tbe subject. It would only be threshing over old straw to consider them seriatim or in detail. Tbe issue was one of fact determinable alone by tbe jury.

We are constrained to uphold tbe validity of tbe trial on tbe record as presented.

No error.

Ervin, J., took no part in tbe consideration or decision of this case.