#### J. M. SMITH and Wife, MINA SMITH, v. WHITMER-PARSONS PULP & LUMBER COMPANY, R. P. MOORE and WILBURN PATRIQUIN.

(Filed 23 December, 1925.)

Appeal by defendant Whitmer-Parsons Pulp & Lumber Company from SwaiN Superior Court. *Webb, J.*

Action for damages on account of negligence, and from a jury verdict in favor of tbe plaintiffs, tbe defendants, Wbitmer-Parsons Pulp & Lumber Company, appeals. No error.

Tbe plaintiffs, landowners in Ocona Lufty Township, owned a 40-acre tract of farm land located immediately and directly opposite tbe defendant’s saw mill plant on Ocona Lufty Eiver. Tbe plaintiffs lived on tbeir tract of land near tbe river, where they owned a residence, and certain other buildings, including a storehouse in which they conducted a mercantile business. Tbe public highway ran immediately in front of plaintiffs’ buildings and within some 25 feet of the waters of the river. The defendants owned the tract of land immediately opposite and across the river from plaintiffs’ residence, and on its land it operated a saw mill and planing mill and had, among other things connected with its industrial plant, a place where it burned its refuse from its mill. This fire was fed by means of a conveyor which took the refuse matter up to a point above the fire from which it dropped and burned. The fire was enclosed on all sides except the open side next to plaintiffs’ residence.

This action,- as originally instituted, alleged a nuisance on account of this continual fire and the resultant falling of cinders and charred particles of wood on ’ plaintiffs’ premises and the scattering of soot thereon, so that plaintiffs’ home was rendered less comfortable and their business interfered with and their property endangered on account of fire, and, from the alleged ill effects of a log pound and odors therefrom, but at the time of the trial, plaintiffs had sold their residential property, including their mercantile business and had moved therefrom.

The plaintiffs stated that they asked for nothing except damages to their real and personal property and the court eliminated the other features from the trial.

The court submitted the following issues:

“1. Were the plaintiffs the owners of the lands described in the complaint at the time of the institution of this action. Answer: Yes.

“2. Was the lands, houses and outbuildings of the plaintiffs damaged by the negligence of the defendant, between 1 March, 1924, and 1 November, 1924, as alleged in the complaint? Answer: Yes.

“3. If so, in what amount? Answer: $1,800.

*880“4. Was tbe personal property of tbe plaintiffs damaged by tbe negligence of tbe defendant, between 1 March and 1 November, 1924, as alleged in tbe complaint? Answer: Yes.

“5. If so, in wbat amount? Answer: $200.

*W. G. Hall and Morgan & Ward for plaintiffs.*

*S. W. Blade and*Smothers, *Robinson & Gogburn for defendant.*

Per Curiam.

We bave examined all tbe exceptions, and, upon perusal of tbe entire record, we are of opinion *that there is no*prejudicial error. Tbe court below charged tbe principles of law applicable to tbe relevant facts, and we are of opinion that tbe charge is a sufficient compliance with C. S., 564. Tbe evidence admitted was competent and there bave been no errors committed in tbe trial prejudicial to tbe defendant. Tbe plaintiffs contended that the. defendants are liable for negligence, and tbe defendants contended that they are liable only in tbe case of negligence. We are of opinion that tbe case has been tried in accordance with tbe ¿ceepted theory of tbe parties, and tbe jury has settled tbe fácts in a trial free from prejudicial error. Therefore, there is

No error.