Frisbee v. Town of Marshall

Citations

• 30 S.E. 21
• 122 N.C. 760
• 1898 N.C. LEXIS 344

Syllabus

<p>Action for Trespass — Trespass on Possession — Evidence —Damages.</p> <p>1. Where, in the trial of an action for trespass on land to which plaintiff’s deceased husband had title but in which dower had not been allotted or sued for, the plaintiff offered to show that she had been in possession, cultivating and paying taxes on the land; Held, that it was error to exclude the evidence.</p> <p>2. An action of trespass against a wrong doer is a possessory remedy founded merely on the possession and it is not necessary that the title to the land should come into question; hence, it was error, in the trial of an action for trespass by a widow, to whom dower had not been allotted in her husband’s land, to instruct the jury that the burden was on her to show that she was owner of the land.</p> <p>3. Damages in an action for trespass on land in possession of plaintiff must be limited to such injuries to the possession as diminish its profits and uses, considering the damages after the action commenced so far as they resulted from the original trespass.</p> <p>Montgomery, J., dissents.</p>