Walter SANDERS, Jr., Administrator of the Estate of Wavon Atkinson, Deceased
v.
J. Felton WILKERSON.
No. 7311SC549.
Court of Appeals of North Carolina.
January 9, 1974.*573 L. Austin Stevens, Smithfield, for plaintiff appellant and plaintiff appellee.
James A. Wellons, Jr., and Wallace Ashley, Jr., Smithfield, for defendant appellant and defendant appellee.
MORRIS, Judge.
Defendant argues in his brief that even though the written agreement was declared null and void, there was an oral agreement *574 and plaintiff consented and agreed for defendant to go upon his lands and take the sand and gravel.
We said in Builders Supplies Co. v. Gainey, 14 N.C.App. 678, 681, 189 S.E.2d 657, 659 (1972);
"While commercial gravel belongs to the mineral kingdom in that it is inorganic and formed by nature alone, it is not regarded as a mineral under the mining laws of North Carolina. Lillington Stone Co. v. Maxwell, 203 N.C. 151, 165 S.E. 351 (1932). (But see G.S. 74-49(6), effective 11 June 1971)."
This action arose from activities in 1966 through 1969, and the action was instituted in 1969. In Builders Supplies Co. v. Gainey, 282 N.C. 261, 192 S.E.2d 449 (1972), Justice Lake defined a profit a prendre as "the right to enter upon the land of another and to take therefrom some part or product thereof". See also Webster, Real Estate Law in North Carolina, § 312. A profit a prendre can only be created by grant. It cannot be effectively created orally. Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L.R. 1527 (1922); Builders Supplies Co. v. Gainey, supra. Defendant, therefore, cannot rely on an oral agreement to take his actions from the realm of trespass and move them into the realm of consent. Nor can defendant rely on having a license not revoked. See Thompson, Real Property, § 135. The right to enter land and take gravel is not the proper subject of a license. Thompson, supra, § 222.
Since defendant's counterclaim was based on the void contract, the court properly allowed plaintiff's motion for a directed verdict on the counterclaim.
Defendant further urges that he is entitled to reimbursement for costs incident to preparing the area for the taking of the sand and gravel. We believe this argument is answered by the following statement of Justice Denny (later C. J.) in Jones v. McBee, 222 N.C. 152, 22 S.E.2d 226 (1942):
"This Court has held that where an action is brought to recover for damages for logs cut and removed by one in the honest belief on the part of the trespasser that he had title to them, the measure of damages is the value of the logs in the woods from which they were taken, together with the amount of injury incident to removal. However, notwithstanding the good faith of the party removing the logs, he may not be allowed compensation for converting the trees into personal property. Wall v. Holloman, 156 N.C. 275, 72 S.E. 369; Gaskins v. Davis, 115 N.C. 85, 20 S.E. 188."
We come now to plaintiff's contention that the court erred in failing to allow interest from the time of the taking. Plaintiff relies on language in Jones v. McBee, supra:
"`Where neither the trespass nor the conversion is wilful or intentional, the measure of damages is the value of the mineral as it lay in the mine immediately after its severance from the realty, with no deduction for the value of the defendant's labor in effecting the severance. The measure of damages for the conversion of ore by a purchaser from a trespasser has been held to be the value of the ore sold, together with a sum equal to legal interest thereon from the time of conversion, less the reasonable and proper cost of raising it from the mine after it was broken, and hauling from the mine to the purchaser's place of business.'" (Emphasis added.) Id. at 154, 22 S.E.2d at 227.
Apparently, plaintiff relies on that portion which is italicized. We agree that application of correct principles of law to the facts of this case results in denominating the actions of defendant as a conversion of the sand and gravel. The distinction between the italicized portion above and the case before us is that the conversion is not by a purchaser from a trespasser, but conversion *575 by the trespasser himself. We think the first sentence of the quoted portion is applicable in this case.
In Patapsco v. Magee, 86 N.C. 350, 355-356 (1882), Justice Ruffin (later C. J.), speaking to the question of assessing interest in damage awards, said:
"The rule in this state is, that interest, as interest, is allowed only when expressly given by statute, or by the express or implied agreement of the parties. Devereux v. Burgwin, 33 N.C. 490; Lewis v. Rountree, 79 N.C., 122. The only statute upon the subject is that contained in Rev.Code, ch. 31, sec. 90, which provides that all sums of money due by contract of any kind whatsoever, excepting such as may be due on penal bonds, shall bear interest, etc., but there is no provision made for actions of trover or trespass de bonis asportatis. In such cases, in order to compel the wrong-doer to make full compensation to the injured party, the jury may, in their discretion, and as damages, allow interest upon the value of the property from the time of its conversion or seizure, and it has been usual for them to do so. But there is no rule which gives it as a matter of law and right, and it was error, therefore, in his Honor to have thus added to the damages as assessed by the jury."
See also Lance v. Butler, 135 N.C. 419, 47 S.E. 488 (1904). Our research has disclosed nothing which would change the rule set out by Justice Ruffin.
We are aware of the decision in Dean v. Mattox, 250 N.C. 246, 108 S.E.2d 541 (1959), but we do not think it changes the rule set out in Patapsco v. Magee, supra. In Dean v. Mattox, the jury returned a verdict of $2,250 damages, and the trial judge added in the judgment rendered "with interest from July 29, 1957", the date set by plaintiff in his complaint for the running of interest. Defendant had conveyed to plaintiff for $12,000 consideration certain timber on a designated tract of land. Plaintiff went on the land and cut timber and sold some to a lumber company. Plaintiff later learned that the land from which this timber was cut belonged to Duke Power. Plaintiff refunded the money and sued for $2,250, the alleged value of the timber he paid for but did not get. Justice Bobbitt (now C. J.), in discussing the defendant's contention that the court erred in adding interest to the jury's verdict, said:
"Appellant cites no authority in support of his contention that the court erred in rendering judgment for $2,250.00 with interest from July 29, 1957. Relevant to his general contention to this effect, it is noted that an action to recover for money had and received, under the doctrine of unjust enrichment, is an action on implied contract. Decisions in other jurisdictions differ as to whether, and if so as of what date, interest is allowable in such action. See 58 C.J.S., Money Received § 33(b), where the author states that `the better view seems to be that whether interest shall be recovered must depend on the justice and equity of the case.'
Without undertaking presently to adopt a rule of general application, we think the allowance of interest from July 29, 1957, the date plaintiff paid $2,250.00 to Rocky River Lumber Company, was proper under the circumstances of this case. The only reasonable conclusion to be drawn from the testimony of both plaintiff and defendant is that prior to July 29, 1957, defendant was fully advised that demand had been made on plaintiff for the $2,250.00 and that plaintiff was insisting that defendant provide the $2,250.00 to meet such demand." Id. at 251, 108 S.E.2d at 546.
In the case before us, there was no jury verdict, because there was no trial. The court was entering judgment upon a motion for summary judgment. In his discretion, he could have awarded interest from *576 the date of taking. He did not do so. Plaintiff has shown no abuse of discretion.
Affirmed.
CAMPBELL, J., concurs.
BALEY, J., dissents.
BALEY, Judge (dissenting).
In Atkinson v. Wilkerson, 10 N.C.App. 643, 179 S.E.2d 872 (1971), this Court held the written agreement between the defendant and Atkinson for removal of sand and gravel from Atkinson's land to be invalid. The majority now holds that the oral agreement for removal of sand and gravel admitted by both parties is unenforceable, and defendant is liable to plaintiff for the full amount he received from the sale of the sand and gravel, leaving him no profit and no compensation for the time, labor, and funds which he expended in removing and selling it. In my view, the applicable law does not require this inequitable result.
Both the defendant and Atkinson understood that the defendant had permission to be on the land and to remove sand and gravel; yet, because the written agreement was declared invalid, defendant is being teated as if he had stolen the sand and gravel. The record discloses that over a period of more than three years from 1966 to 1969 Atkinson had knowingly permitted the defendant to remove sand and gravel from his land and had received eleven separate payments for such materials in the total amount of $4,183.22. The entire sales price received by defendant for the materials removed was $8,667.53.
In my judgment the defendant in reality was not a trespasser but a licensee. Even though the agreement between defendant and Atkinson did not create a profit a prendre, it did create a license. A license can be created orally and is not subject to the statute of frauds. Restatement of Property, § 515 (1944); Webster, Real Estate Law in North Carolina, § 311; see Mordecai, Law Lectures 463-464, 835. When an attempt to create an easement or profit a prendre is ineffective because of defects in the written document or because there is no written document, a license is created. Whitaker v. Cawthorne, 14 N.C. 389 (defective writing); Mertz v. J. M. Covington Corp., 470 P.2d 532 (Alas. 1970) (no writing); Towles v. Hodges, 235 Miss. 258, 108 So. 2d 884 (1959) (no writing); 3 Powell, Real Property, § 429; Restatement of Property, § 514; Webster, supra, § 311. A license is defined as "a permission or waiver permitting the licensee to do acts upon the land which would otherwise be a trespass." Webster, supra, § 310. It differs from an easement or profit a prendre primarily in that it is freely revocable at the will of the licensor. Hutchins v. Durham, 118 N.C. 457, 24 S.E. 723; R.R. v. R.R., 104 N.C. 658, 10 S.E. 659; 3 Powell, supra, § 428; Restatement of Property, § 519; Webster, supra, § 312. The difference is not significant in this case because the license was not revoked during the period involved.
Since defendant had a license from Atkinson allowing him to take sand and gravel from Atkinson's land, he was not a trespasser and did not wrongfully convert the materials to his use. After removing the sand and gravel, he sold it and paid Atkinson part of the proceeds as the oral contract between the parties required. Whether the $4,183.22 paid to Atkinson was as large a payment as the contract required, and whether Atkinson's acceptance of the $4,183.22 estopped him to demand a larger sum, are issues as to which there may be conflict. They must be decided at trial rather than by summary judgment.
My vote is to remand for trial.