Commissioners of Asheville v. Johnston

Reade, J.

The substantial rights of the parties in regard to the subject matter of this suit were declared at the last ter in of this Court, in a suit between the same parties reversed. 71 N. C. Rep. 350 . In view of that, the points upon which this case is. brought up, would seem to be frivolous and vexatious.

1. The defendant asked his Honor to instruct the jury., “ that the damage sustained by defendant is not to be reduced or set off by any alleged benefit to his property.”

His Honor instructed the jury that any advantage to the defendant in common with the public was not to be considered, but that any special benefit to the defendant’s property was to be considered. This was in exact accordance with former decisions of this Court, especially Freedle v. N. C. Railroad Co., 4 Jones’ Rep. 93. And see Cooly Con. Lim., p. 566.

2. Defendant asked his Honor to charge that there was no evidence of. any special benefit, &c.

His Honor could not have so charged, because the case states that “ there was much evidence on both sides, the plaintiff *400 showing the benefits to be derived by the erection of a new-crossing into the defendant’s lots, and other items, all of which testimony was admitted.”

3. “Defendant moved in arrest of judgment on account of irregularities and vagaries in the proceedings.”

This is so irregular and vagarious that we do not consider it.

There is no error. Judgment affirmed. Judgment here for plaintiff for costs.

Pee Cukiam. Judgment affirmed.