LEIGH v. GARYSBURG MFG. Co.

contract, May 4, 1894, for purposes of removing timber off of other lands than plaintiff's? Answer No.

2. Was it agreed as a part of said contract that defendant should have a right-of-way over said land of plaintiff for the purpose of removing any other timber the defendant may own, and for an indefinite period? Answer...

3. If so, was such agreement omitted by mutual mistake in the preparation and execution of the contract by plaintiff's husband and the draughtsman? Answer...

.....

4. What damage has plaintiff sustained? Answer, We find $387.

We think it was correct

His Honor directed the jury to answer the first issue "No." In this we think he was correct, as the execution of the written contract was admitted, and its construction therefore became a matter of law for the court. ly construed. The only consideraion expressed in the contract is the purchase price of the lumber, which is to be removed within five years. The defendant is given "the right of ingress and egress upon and over the said tract of land for themselves, their servants, agents and teams for the purpose of cutting and carrying away the said lumber for the space of five years from the date of this contract." (The italics are ours). The right given to build the tramway as above quoted was primarily for the convenience of removing the trees cut on the plaintiff's own land, and we can readily see that, as long as it was necessary for this purpose, she might be willing to permit the defendant to use it for any other purpose that did not cause any additional damage or inconvenience.

But this is entirely different from assuming that the plaintiff would, without compensation or resulting benefit to herself, be willing to permit the tramway to remain indefinitely, with all its attendant risk and inconvenience, solely for the benefit of the defendant.

LEIGH v. GARYSBURG MFG. CO.

Placing upon the contract such a reasonable construction as is consistent with all its provisions, we think that the defendant's right to use the tramway expired with the contract on May 4, 1899.

At the conclusion of the defendant's evidence offered in support of the socalled counterclaim set out in the answer asking a reformation of the written contract, the plaintiff demurred thereto. The court below adjudged as follows:

"1. That the evidence is insufficient to justify a reformation of the contract.

"2. That it appears from McNeill's own evidence that he was satisfied with and executed the contract on behalf of the defendant, after the words inserted by Leigh were stricken out, and that the contract in evidence as executed was the contract of the parties.

"3. That there is no evidence that the provision contended for by defendant was omitted by mutual mistake.

"4. That the contract, if amended in the manner and form as contended for by defendant, would be void for indefiniteness and uncertainty of duration."

The court being of opinion with the plaintiff, sustained the demurrer and the defendant excepted and appealed.

Again we think his Honor was correct, as the burden of proving the second and third issues rested on the defendant. Whatever chaffering may have occurred between the parties prior to the execution of the contract, there was no proof of fraud or mutual mistake in its execution.

The record further states as follows: "Upon the issue of damage, the court charged the jury at length and stated that the rule of damage would be the actual rental value of the land actually occupied by defendant since May 4, 1899, and that if the rental value of the cleared land was at all reduced or injured by the presence of the road since May 4, 1899, that is an element of damage. To this charge the defendant excepted."

LEIGH v. GARYSBURG MFG. CO.

We see no error in the charge as given under the circumstances of this case, as there was testimony tending to prove both elements of damage.

Again we quote from the record as follows: "In regard to that section of the answer seeking to condemn right of way, claimed by the defendant's counsel under sections 2023 and 2056 of The Code and amendments thereto, the court held that such allegation in the answer was not a counterclaim nor the subject of equitable relief, and that the court in this action had no original jurisdiction to grant any such relief, and that defendant had no power of eminent domain in the charter, and the court overruled the defendant's contention in that respect. Defendant excepted."

We think the court was correct in its ruling. The defendant was not a quasi public corporation, and its tramway was in no sense impressed with a public use. It did not profess to be a common carrier, but on the contrary expressly stated that the tramway was built solely to haul its own timber. Therefore it was not entitled to demand the assessment of permanent damages under chapter 224 of the Public Laws of 1895. The most that it could obtain was a temporary easement ex necessitate under Section 2056 of The Code as amended by Chapter 46 of the Public Laws of 1887; and this could be obtained only by a strict compliance with the provisions of the statute. A proceeding for the condemnation of an easement can never be a counterclaim, as defined in Section 244 of The Code, as it has none of its essential characteristics. It is not even a cause of action. The owner of the land may have a cause of action, and when he brings his action the defendant may obtain an easement by demanding the assessment of permanent damages under the Act of 1895, or the general equity jurisdiction of the court, provided the easement is impressed with a public use. We are now considering easements that are purely statutory in their nature and not those arising in grant or prescription. Lassiter v.

HARRISON v. GARRETT.

Railroad, 126 N. C., 509; Geer v. Water Co., 127 N. C., 349. In all other cases the easement may be obtained only by the method prescribed by the statute in the nature of a special proceeding. While the question is not before us, it is somewhat singular that the Act of 1887, Ch. 46, provides that: "Cartways, tramways or railways for the removal of timber shall continue for a period not longer than five years.'

The defendant offered to prove, we presume in mitigation of damages, that the defendant hauled, free of charge, freight belonging to some of the plaintiff's tenants. This testimony

was properly excluded, as it did not tend to show that the plaintiff herself derived any benefit therefrom.

The judgment of the court below is
Affirmed.

HARRISON v. GARRETT.

(Filed March 17, 1903.)

1. EVIDENCE-Instructions-Libel and Slander.

It is error to permit evidence competent for one purpose only to be considered generally by the jury without instructions restricting it to the special purpose for which it is admissible.

2. LIBEL AND SLANDER-Privileged Communications-Evidence. In an action for libel, to make a communication privileged, it must be made bona fide about something in which the writer has an interest or duty, the person addressed a corresponding interest or duty, and in protection of that interest, or the performance of that duty.

3. LIBEL AND SLANDER-Evidence-Malice.

In an action for libel, evidence of a public rumor affecting the character of plaintiff does not tend to disprove malice or show good faith in the absence of evidence that the defendant at the time he made the publication had knowledge of the rumor and acted thereon.

4. PLEADINGS-Complaint-Waiver-Demurrer-Libel and Slander. When, in an action for libel, the publication is not libelous per se, and the complainant fails to allege special damage, a failure to demur waives the defect.

HARRISON . GARRETT.

ACTION by T. N. Harrison against Paul Garrett, heard by Judge Francis D. Winston and a jury, at August Term, 1901, of the Superior Court of HALIFAX County. From a judgment for the defendant, the plaintiff appealed.

Thos. N. Hill, Day & Bell and F. H. Busbee & Son, for the plaintiff.

E. L. Travis, W. E. Daniel and Claude Kitchin, for the defendant.

WALKER, J. This is an action to recover damages for libel, in which the plaintiff alleged that on May 30, 1898, the defendant, over the name of Garrett & Co., mailed a certain letter to his agent or employee in Belton, Texas, which contained the following libellous matter: "Replying to your favor of 26th we beg to say that it occurs to us you have seen a circular gotten out by this firm referred to. This circular consists, in the first part, of a certificate from the chairman of the County Board of Commissioners, one of our "populist" effusions, who, as Sam Jones says, 'has risen to the top' among the scum in the recent political 'boil.' We presume a few dollars would buy almost any sort of a certificate from him." The court submitted to the jury four issues as follows:

1. Did the defendant compose and publish of the plaintiff the false and defamatory words set out in the complaint? 2. Was the occasion on which they were written privileged?

3. If so, was the defendant actuated by express malice in writing and publishing them?

4. What damage if any has the plaintiff sustained by said written and published words?

The plaintiff introduced testimony for the purpose of showing that the alleged libel was published with malice, and on the cross examination of the plaintiff and of several of the