PLAINTIFF'S APPEAL.
Damages — Act of 1895, Ch. 224 — Evidence — Tax Valuation.
1. Previous to Laws 1885, ch. 224, in cases of this kind instituted against a railroad, permanent damages, if demanded in either the complaint or answer, might be assessed along with damages to the crops in the past three years, and ascertained in separate issues, and the judgment should embrace both, if that course was adopted.
2. Tax valuation of land placed without the intervention of the owner, is res inter alios acta, and upon objection, is incompetent evidence.
CLARK, J.
The plaintiff excepted to the submission of an issue as to the permanent damages, they not having been claimed by the complaint. But it was held in the same case when here on a former appeal ( 118 N.C. 996, at p. 1008) that either the plaintiff or defendant could have the permanent damages assessed, if demanded, in either the complaint or answer. To same purpose is Parker v. R. R., 119 N.C. 677.
The jury found the permanent damages to be $500 and the damages to the crops in the past three years to have been $300. The court rendered judgment for only $500. In this there was error. (See defendant's appeal in this case.) The finding of permanent damages bars all actions for damages to future crops, but not the simultaneous recovery of past damages to the crops (except in actions brought since chapter 224, Laws 1895), unless by the frame of the issue or the charge it is clear the past damages were considered in the ascertainment of permanent damages. Here the submission of separate issues shows (39) that they were not.
The plaintiff objected to evidence as to the valuation of the land upon the tax list. There have been several decisions that the listing of land was some, though slight, evidence of claim of title and of the character of possession by the party listing the same. Austin v. King, 97 N.C. 339; Pasley v. Richardson, 119 N.C. 449; Barnhardt v. Brown, 122 N.C. 587; 1 Greenleaf Ev., sec. 493.
Acquiescence in listing and payment of taxes by another is evidence against the party out of possession. But the tax valuation, being placed on the land by the tax assessors, without the intervention of the landowner, no inference that it is a correct valuation can be drawn from his failure to except that the valuation is too low. Such valuation was res inter alios acta, and is not competent against the plaintiff in this action. Daniels v. Fowler, 123 N.C. 35; Flint v. Flint, 6 Allen (Mass.), 34; Kanarson v. Henry, 101 Mass. 152.
On the issue as to permanent damages let there be a
NEW TRIAL.
Cited: Gates v. Max, 125 N.C. 144; R. R. v. Land Co., 137 N.C. 333; Beasley v. R. R., 147 N.C. 365; Hamilton v. R. R., 150 N.C. 194; Roberts v. Baldwin, 155 N.C. 281; Wyatt v. R. R., 156 N.C. 315; Perry v. R. R., 181 N.C. 39.
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