{ "id": 8562972, "name": "WALTER SANDERS, JR., Administrator of the Estate of WAVON ATKINSON, Deceased v. J. FELTON WILKERSON", "name_abbreviation": "Sanders v. Wilkerson", "decision_date": "1974-04-10", "docket_number": "No. 54", "first_page": "215", "last_page": "220", "citations": [ { "type": "official", "cite": "285 N.C. 215" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "201 S.E. 2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "20 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552400 ], "opinion_index": -1, "case_paths": [ "/nc-app/20/0331-01" ] }, { "cite": "179 S.E. 2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": -1 }, { "cite": "10 N.C. App. 643", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555196 ], "year": 1971, "opinion_index": -1, "case_paths": [ "/nc-app/10/0643-01" ] }, { "cite": "192 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "454" } ], "opinion_index": 0 }, { "cite": "282 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564243 ], "year": 1972, "pin_cites": [ { "page": "267-68" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0261-01" ] }, { "cite": "32 A.L.R. 1527", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1922, "opinion_index": 0 }, { "cite": "111 S.E. 365", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "opinion_index": 0 }, { "cite": "183 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655959 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/183/0253-01" ] } ], "analysis": { "cardinality": 540, "char_count": 11978, "ocr_confidence": 0.541, "pagerank": { "raw": 1.6037411745865522e-07, "percentile": 0.6843086218540154 }, "sha256": "b54314bf92f5d99ba5ae7bb35970b0110b5016a8d3561e962f146ee93ac143de", "simhash": "1:857acdb7062791d8", "word_count": 1983 }, "last_updated": "2023-07-14T22:42:08.335271+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WALTER SANDERS, JR., Administrator of the Estate of WAVON ATKINSON, Deceased v. J. FELTON WILKERSON" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nThe hearing before Judge Canaday was on plaintiff\u2019s second motion for summary judgment and defendant\u2019s answer thereto. The evidence consisted solely of defendant\u2019s answers filed 29 July 1970 and 9 September 1970 to the interrogatories filed by plaintiff, this being the same evidence which was before Judge Bailey on 1 October 1970.\nDefendant\u2019s answers to plaintiff\u2019s interrogatories disclosed defendant had collected a total of $8,667.53 from sales of gravel, sand and dirt removed from plaintiff\u2019s farm; that the items making up this total of $8,667.53 were collected on various dates during the years 1966, 1967, 1968, and during the first, three months of 1969; and that defendant had made payments to plaintiff in the total amount of $4,183.22.\nPlaintiff\u2019s motion for summary judgment is based on the premise that Atkinson was entitled to all of the $8,667.53 which defendant collected from his sales of gravel, sand and dirt removed from plaintiff\u2019s farm. The Court of Appeals, in affirming Judge Canaday\u2019s summary judgment for plaintiff, based decision on its view that the liability of defendant to plaintiff was that of a person who had trespassed upon plaintiff\u2019s farm and had wrongfully converted to his own use the gravel, sand and dirt he had removed therefrom.\nThe unresolved questions relate solely to defendant\u2019s liability to plaintiff for gravel, sand and dirt which he removed from plaintiff\u2019s farm and sold during the years 1986, 1967, 1968, and 1969, all of which occurred prior to plaintiff\u2019s attack in this action on the validity of the writing of 29 September 1966.\nThe writing of 29 September 1966 having been adjudged null and void, neither plaintiff nor defendant can predicate legal rights thereon. Defendant acquired no right, title or interest in plaintiff\u2019s farm or in any of the gravel, sand and dirt thereon. Absent a valid writing, defendant could not and did not acquire an easement or profit a prendre. Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L.R. 1527 (1922).\nAlthough defendant acquired no right, title or interest in the gravel, sand and dirt on plaintiff\u2019s farm, his allegations and answers to interrogatories are to the effect that he removed and sold this gravel, sand and dirt with the full knowledge and consent of the plaintiff and made frequent payments to plaintiff of portions of the funds received from such sales. Notwithstanding failure to reach agreement as to the basis on which defendant was to compensate plaintiff, the evidence discloses that the removal of gravel, sand and dirt by defendant from plaintiff\u2019s farm continued with plaintiff\u2019s knowledge and consent, express or implied, during the years 1966, 1967, 1968 and 1969.\n\u201cA license is not an estate and creates no substantial interest in land but merely serves to authorize one to do certain specified acts upon the lands of the licensor. A license operates merely as a permission or waiver permitting the licensee to do acts upon the land which would otherwise be a trespass. A license is generally revocable, while easements and profits a prendre are not.\u201d Webster, Real Estate Law in North Carolina, \u00a7 310 (1971). See also, Restatement of the Law of Property, Chapter 43, Licenses, \u00a7\u00a7 512, 514 and 515.\nDuring the years 1966, 1967, 1968, and 1969, defendant\u2019s status was at least that of a licensee.\nIn the absence of a valid contract as to the basis on which he is to be compensated, what is the measure of damages when gravel, sand and dirt are removed from land with the owner\u2019s knowledge and consent?\n\u201cOne who inadvertently, or under a claim of right or a bona fide belief of title, encroaches upon the land of another and mines or removes mineral therefrom, is generally held to be liable in damages only for the minerals removed, based upon their value in situ, that is, as they lay in the earth before being disturbed.\u201d 54 Am. Jur. 2d, Mines and Minerals, \u00a7 253. See also, Annotation, 21 A.L.R. 2d at 383. In certain contexts gravel, sand and dirt have not been considered \u201cminerals.\u201d See Builders Supplies Co. v. Gainey, 282 N.C. 261, 267-68, 192 S.E. 2d 449, 454 (1972), and cases cited. In the present context, the quoted rule seems appropriate without regard to whether the gravel, sand and dirt should be classified technically as minerals. See Dobbs, Law of Remedies \u00a7 5.2 (1973). The recovery by plaintiff of the value of the gravel, sand and dirt as they lay in the earth before being disturbed would suffice to compensate plaintiff for what he owned. We adopt this as the measure of damages recoverable by plaintiff in the absence of a valid contract prescribing the measure of plaintiff\u2019s right to compensation. Nothing in the evidence discloses whether compensation on this basis would be more or less than the amount for\u2019which summary judgment was entered. However that may be, we hold that plaintiff is not entitled as a matter of law to summary judgment for all money collected by defendant from his sales of gravel, sand and dirt removed by him from plaintiff\u2019s farm. On this phase of the case, our views appear to be in substantial accord with those expressed by Judge Baley in his dissenting opinion.\nMoreover, defendant is entitled to a factual determination in respect of his allegations of estoppel. If, as alleged by. defendant, the gravel, sand and dirt were removed by defendant from plaintiff\u2019s farm with plaintiff\u2019s full knowledge and consent, and plaintiff, with knowledge of the facts, accepted the amounts paid to him by defendant as the amounts due him under their subsisting arrangements, plaintiff would be estopped to assert a further right to recover therefor.\nAs a counterclaim defendant alleged that, notwithstanding plaintiff had granted him the exclusive right to remove gravel, sand and dirt from plaintiff\u2019s farm, plaintiff had removed or had caused to be removed gravel, sand and dirt, and had sold it or caused it to be sold, and that defendant was entitled to $401.00, this being one-half (%) of the sale price thereof. Since defendant acquired no right, title or interest in the gravel, sand and dirt on plaintiff\u2019s farm, we agree with the Court of Appeals that there is no basis for a recovery by defendant on such a counterclaim.\nSince the case goes back for trial, we deem it inappropriate to discuss the question raised by plaintiff in respect of interest. Suffice to say, we are in general accord with the views expressed by Judge Morris in her opinion for the Court of Appeals.\nBeing of the opinion that there are unresolved factual issues, we hold the motion for summary judgment was improvidently granted. Consequently, the summary judgment entered 6 March 1978 by Judge Canaday is vacated; and the cause is remanded to the Court of Appeals with direction to remand to the Superior Court of Johnston County for a determination of all unresolved factual issues pertinent to a determination as to what amount, if any, is owing by defendant to plaintiff. :\nError and remanded.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "h. Austin Stevens for plaintiff wppellant-appellee.", "Wallace Ashley, Jr. for defendant appellant-appellee." ], "corrections": "", "head_matter": "WALTER SANDERS, JR., Administrator of the Estate of WAVON ATKINSON, Deceased v. J. FELTON WILKERSON\nNo. 54\n(Filed 10 April 1974)\n1. Easements \u00a7 11\u2014 license to use land\nA license is not an estate and creates no substantial interest in land but merely serves to authorize one to do certain specified acts upon the lands of the licensor.\n2. Easements \u00a7 11\u2014 license to remove sand and gravel\nWhere plaintiff and defendant executed a written agreement whereby defendant was to remove sand and gravel from plaintiff\u2019s property, but the agreement was subsequently declared invalid, defendant\u2019s status during the time he removed sand and gravel from plaintiff\u2019s property was at least that of a licensee.\n3. Damages \u00a7 5; Mines and Minerals \u00a7 3\u2014 removal of sand and gravel from land \u2014 measure of damages\nIn the absence of a valid contract as to the basis on which plaintiff was to be compensated for gravel, sand and dirt removed from his land with his knowledge and consent, plaintiff was entitled to recover the value of the gravel, sand and dirt as they lay in the earth before being disturbed.\n4. Trespass \u00a7 7\u2014 wrongful taking of sand and gravel \u2014 estoppel issue \u2014 summary judgment improper\nIn an action to recover for sand and gravel allegedly wrongfully removed from plaintiff\u2019s land by defendant, the trial court erred in entering summary judgment for plaintiff since there were unresolved factual issues with respect to estoppel.\nCross appeals by plaintiff and by defendant under G.S. 7A-30(2) from the Court of Appeals.\nWavon Atkinson instituted this action in July 1969 (1) for a declaration that a purported contract giving the defendant the right to enter upon plaintiff\u2019s land and remove gravel, sand and dirt therefrom is null and void, and (2) for damages for the gravel, sand and dirt defendant had removed from plaintiff\u2019s land.\nThe purported contract attacked by plaintiff consists of a writing dated 29 September 1966 by the terms of which Wavon Atkinson and wife, Arletha M. Atkinson, sold and conveyed to J. Felton Wilkerson, his heirs and assigns, \u201cthe right to mine, dig and remove all or any part of the soil, ore, gravel, sand, dirt or mineral\u201d situate on their described land in Selma Township, Johnston County, North Carolina.\nSubsequent to the filing of plaintiff\u2019s amended complaint and defendant\u2019s answer thereto, plaintiff moved for partial summary judgment on the issue of the validity of the contract. In support of his motion, he submitted the contract and answers of defendant to interrogatories served upon him by plaintiff. Based on findings that defendant gave no consideration therefor and that it was vague and indefinite as to (1) time of performance, and (2) the area involved, the writing of 29 September 1966 was adjudged null and void by Judge Bailey in partial summary judgment entered 1 October 1970. Upon defendant\u2019s appeal, Judge Bailey\u2019s partial summary judgment was affirmed. 10 N.C. App. 643, 179 S.E. 2d 872 (1971). Reference is made to Judge Campbell\u2019s opinion for the provisions of the writing of 29 September 1966 and for the grounds on which it was adjudged null and void.\nThe decision of the Court of Appeals was filed 31 March 1971. The original plaintiff having died, Walter Sanders, Jr., Administrator of the Estate of Wavon Atkinson, Deceased, was substituted by order of 7 August 1972 as party plaintiff in this action. Hereafter, the word \u201cplaintiff\u201d will refer to the original or substituted plaintiff according to context.\nOn 27 October 1972, based solely on defendant\u2019s answers filed 29 July 1970 and 9 September 1970 to plaintiff\u2019s interrogatories, plaintiff moved for summary judgment (1) that he recover as liquidated damages the sum of $4,484.31, together with the costs of this action, and (2) that he be granted summary judgment on the defendant\u2019s counterclaim. After a hearing on this motion for summary judgment and defendant\u2019s answer thereto, Judge Canaday entered judgment as follows: (1) \u201c . . ; that the plaintiff have and recover of the defendant, the sum of Four Thousand Four Hundred Eighty-Four and 31/100 ($4,484.31) Dollars, with interest thereon from this date until paid, together with the costs of this action\u201d; (2) \u201c . . . that the defendants\u2019 counterclaim, being based upon a null and void agreement, be and it is hereby dismissed\u201d; and (3) \u201c . . . that the defendant\u2019s motion for dismissal and judgment on the pleadings be and it is hereby denied.\u201d\nDefendant excepted to each of the three quoted adjudications and appealed. Plaintiff excepted to that portion of the first quoted adjudication which provided for his recovery of interest on the $4,484.31 only from the date of judgment.\nThe Court of Appeals, by a two-to-one vote, affirmed Judge Canaday\u2019s judgment in its entirety. Judge Baley dissented. 20 N.C. App. 331, 201 S.E. 2d 571. Both plaintiff and defendant gave notice of appeal to this Court.\nh. Austin Stevens for plaintiff wppellant-appellee.\nWallace Ashley, Jr. for defendant appellant-appellee." }, "file_name": "0215-01", "first_page_order": 247, "last_page_order": 252 }