Exceptions 1, 9 and 10. It was not error to permit the witness to testify that a tree to square 12 inches should be 19 inches in diameter. It is true that a stick of timber 12 inches square will have a diagonal of 17 inches (very nearly), and that this is a matter of mathematical calculation reached by adding together the square of 2 sides (288 inches) and taking its square root, which is almost exactly 17 inches. But in squaring timber all the bark comes off and, besides, few trees are exactly round, so that the question is a practical one based upon experience and observation.
Exceptions 2,3 and 4 raises the point, whether witnesses might testify to the damage plaintiffs suffered to their land from the cutting of this timber under size by defendants, giving their estimate from a careful knowledge and investigation, and the ruling of his Honor is sustained byWade v. Telephone Co., 147 N.C. 222; Myers v. Charlotte, 146 N.C. 247;Davenport v. R. R., 148 N.C. 294. Both these witnesses had been familiar with the land for twenty years and had made a careful examination and count of stumps, etc., since the cutting, and so testified. *Page 207
Exceptions 5 and 6 are because witnesses, skilled and experienced in timber and mills, were allowed to give their opinion as to rate of growth of pine trees on this land and land in the neighborhood. This was allowable (Myers v. Charlotte, 146 N.C. 247), and falls within the rule that allows the opinion of witnesses when the facts cannot be learned any other way, the witness being required to state the facts and observations upon which his opinion is based.
Exception 7. The court properly excluded testimony of an (215) alleged subsequent oral agreement as to what had been the growth of the timber between the date of the contract and of the cutting. Not only two of plaintiffs were then minors and another was absent, but if this is relied on to release damages for trees cut under the contract size, it was without consideration, and an oral conveyance of an interest in realty. Rev., 976. There was no latent ambiguity here to be explained, as in Ward v. Gay, 137 N.C. 397.
Exception 7 is for rejection of the witness's opinion as to the value of the land before and after the timber was cut. The cutting of part of the timber was lawful and the measure of damages is the value of the trees unlawfully cut, with incidental damages therefrom to the other growth.
Exceptions 9, 10 and 11 are to evidence tending to show the age of trees by the number of rings. As already stated above, in plaintiff's appeal, what weight should be given to such evidence was for the jury. The court could not hold it valueless, as a matter of law.
In plaintiffs' appeal, error.
In defendant's appeal, no error.
Cited: Williams v. Lumber Co., 154 N.C. 311; Veneer Co. v. Ange,165 N.C. 58, 60.