Action to recover damages for defendant's alleged cutting of trees on the plaintiff's land under sizes specified in his timber deed. The facts are sufficiently stated in the opinion, taken with reference to the plaintiffs' exceptions, as follows: (The plaintiff's exceptions are set out in the original.) Both sides appealed. In September, 1892, the husband of V. A. Whitfield and father of the other plaintiffs conveyed to H. L. Pope, trustee, under whom the defendant claims, "all the merchantable pine timber from 12 inches square at the stump and upwards" on the lands described (with one exception therein stated), giving his 15 years to cut and (213) remove it, and the defendant cut and removed the timber in the spring and summer of 1907. This measurement referred to the date of the deed. Warren v. Short, 119 N.C. 42. In 1907 the timber was cut down to 10 and 12 inches in diameter, according to the measurements of a separate committee of plaintiffs and defendant, and the answer admits that some was cut under size. The main controversies were as to the growth of the timber, and the measurement, plaintiffs contending that "merchantable pine timber 12 inches square" meant wood measure, and that the bark-measurement rule of Hardison v. Lumber Co., 136 N.C. 174, does not apply. His Honor held that it did, and from the judgment plaintiffs excepted and appealed.
Exceptions 1, 4, 5, 12 and 14 present this question of measurement. InHardison v. Lumber Co., 136 N.C. 174 and 175, the Court says "a contract for logs `squaring' so many inches is an entirely different measurement, for this presupposes the bark, and outer timber except at the four edges, to be cut away. " Bark is part of the standing tree to be measured in getting the diameter of a tree or log, but the tree is not merchantable timber until the bark is cut off, and the slabs. The defendant under this deed was entitled only to ton timber that would square 12 inches, September, 1892. The court charged, as a matter of law, excluding all evidence about the matter, that under this contract merchantable timber included the bark, and made the contract provide for timber with bark edges. This was prejudicial, for it reduced the diameter of the trees for which the plaintiff was entitled to recover.
Exception 2 cannot be sustained. In permitting the witness to testify as to the number of trees over 27 inches in diameter the court admitted irrelevant testimony, but it was not prejudicial.
Exception 3, for permitting a witness to count the rings in a section of the tree to show the age of the tree, cannot be sustained. Whether *Page 206 there is one ring for each year's growth is not a matter of law, but of fact, and properly submitted to the jury. Exceptions 7 and 8 as to defendant's instructions to its hands cannot be sustained. It was corroborative. Exceptions 9 and 10, because the witnesses testified as to matters in their observation, cannot be sustained. The evidence was admissible. Its weight was for the jury.
Exception 11. The court did not stop counsel when objection was made during his argument, but corrected the matter in his (214) charge. This rested in the discretion of the court. S. v. Hill, 114 N.C. 783; S. v. Ussery, 118 N.C. 1177.
Exceptions 12, 13 and 14, for refusing to give plaintiffs' prayers, and for the charge given in lieu thereof, must be sustained. The defendant was entitled to cut only such trees as, on the date of the contract, would have squared 12 inches at the stump. When timber is squared, the bark is cut off, and therefore not to be counted. The plaintiff was also entitled to recover for any damages, if shown, to the land, undergrowth, etc., by reason of the unlawful cutting and removal of trees under the contract size. Davis v. Wall, 142 N.C. 451; Gaskins v. Davis, 115 N.C. 85.
While the answer, admitted the cutting of some trees under the size specified in the contract, the burden was on the plaintiff to show the number and the amount of damages therefrom.
DEFENDANT'S APPEAL.