#### CAROLINA MINERAL COMPANY v. W. W. YOUNG, ELLIS YOUNG, LANDON YOUNG, and JOHN MILLER.

(Filed 17 March, 1937.)

Reference § 9 — Where additional findings of court are supported by evidence, the court’s judgment in accordance therewith will he affirmed.

Upon appeal from the referee in a consent reference, the court amended the report of the referee by making additional findings of fact, confirming the findings of the referee not inconsistent with the court’s findings and by striking out a portion of the referee’s conclusions of law and substituting other conclusions of law therefor. Appellant excepted to the judgment approving the referee’s judgment, and to the court’s failure to sustain appellant’s exceptions, and to the court’s additional findings and to the striking out of part of the referee’s conclusions of law, and in refusing the motion to remand to the referee. *Held:*Under the court’s power to affirm, disaffirm, or modify the referee’s report, the court had the authority to make the modifications complained of, and the court’s additional findings of fact being supported by evidence, the judgment in accord with the findings is affirmed.

Appeal by plaintiff from *Clement, J.,*at July Term, 1936, of Mitchell.

Affirmed.

This is an action brought by plaintiff against defendants to recover a certain specified amount of money and penalty. The prayer is: “Plaintiff prays judgment against the defendants in the sum of $104.00 as double the market value of feldspar wrongfully and willfully taken and carried away, as alleged; and for judgment in the further sum of $500.00 as punitive damages for the wrongful and willful acts of said defendants, as alleged; and as provided by C. S., 6927, together with the costs of this action.”

Plaintiff obtained a restraining order and, by consent, this was continued to the hearing. At July Term, 1932, by consent, the matter was referred to *W.*C. Berry, Esq., “and he is hereby appointed referee in this cause and is directed to hear the evidence of the parties, find the facts thereupon, state his conclusions of law, and report his findings of fact and conclusions of law to this court before its next term for further order, etc., according to the course and practice of the courts.”

*388Tbe referee, at July Term, 1935, filed bis report and set forth bis findings of fact and conclusions of law. Tbe plaintiff and defendants excepted to tbe referee’s report. Tbe court below rendered tbe following judgment: “Tbis cause coming on to be beard before tbe undersigned judge of tbe Superior Court at tbe July Term, 1936, of Mitchell County Superior Court, on tbe exceptions filed to tbe report of tbe referee in tbe above entitled matter, tbe court, after bearing tbe matter, counsel for plaintiff and defendants being present, amends tbe report of tbe referee as follows: *‘Findings of fact.*Tbe court finds as a fact tbat G. E. Young is tbe same person as Ellis Young; tbat on 12 September, 1916, G. E. Young and wife, E. M. Young, conveyed one-balf interest of tbe mineral interests in tbe land described in tbe pleadings in tbis cause to *W. W.*Young, wbicb deed is recorded in Book 71, page 150, and filed 8 April, 1918, and tbat at a later date, to wit, 19 September, 1928, *W. W.*Young and wife conveyed by deed mineral interests, mining and dumping rights to tbe plaintiff, tbe Carolina Mineral Company, wbicb deed is filed 8 October, 1928, in Deed Book 86, page 219; tbat tbe said Ellis Young (tbe same person as G. E. Young) owns at tbis time a one-balf interest in tbe mineral rights in tbe said land; tbat tbe other findings of fact as found by tbe referee in bis report not inconsistent with tbe above findings are affirmed and approved.’ Tbat paragraph one of tbe conclusions of law in said referee’s report is amended as follows : By striking out tbe portion of said referee’s report as to conclusions of law as shown on page 2, beginning with: 'That tbe plaintiff is entitled to judgment against tbe defendants *W. ~W.*Young and John Miller for tbe costs of tbis action, to be taxed by tbe clerk,’ and inserting tbe following: ‘That tbe plaintiff is entitled to judgment against John Miller for tbe sum of $9.00 and for tbe costs of tbis action, to be taxed by tbe clerk.’ Tbe court is unable to find from tbe evidence tbat *W. W.*Young has taken from tbe land any feldspar of value, tbe evidence showing tbat some feldspar was taken, but no evidence as to tbe amount. Tbe court allows tbe referee, "W. C. Berry, tbe sum of $100.00, said amount to be paid one-balf by tbe plaintiff and one-balf by John Miller. Tbat Miss Margaret Ragland is allowed tbe sum of $25.00 for stenographic work, to be taxed one-balf against tbe plaintiff and one-balf against John Miller.

J. H. ClembNT, *Judge Presiding."*

Tbe plaintiff excepted and assigned error to tbe judgment of tbe court and to tbe facts found therein, excepted to tbe judgment of tbe court approving tbe referee’s judgment, and appealed to tbe Supreme Court. Also, “To tbe ruling of bis Honor in failing to sustain plaintiff’s exceptions to tbe referee’s report and motion to remand for causes set forth in said exceptions; and to bis Honor’s findings of fact (or conclusions *389of law) wherein be finds that Ellis (or G. E.) Young owns at this time one-balf interest in tbe mineral rights to said land. And in striking from the referee’s conclusions of law the following: 'That plaintiff is entitled to judgment against the defendants W. W. Young and John Miller for costs of this action, to be taxed by the clerk.’ And in finding that the feldspar admitted to have been taken from the premises by W. W. Young was without value; and in failing to adjudge or tax W. W. Young with the costs; and in failing to find (or to remand the cause for the referee to find) the amount actually paid to the referee, stenographer, and other costs.”

*J. W. Ragland for plaintiff.*

*Charles Hutchins for defendants.*

Per Guriam.

A Superior Court judge may affirm, disaffirm, or modify report of referee in compulsory reference as well as in consent reference. *First Sec. Trust Co. v. Lentz,*196 N. C., 398, 145 S. E., 776; *Anderson v. McRae, ante,*197.

“Speaking to the subject in *Dumas v. Morrison,*175 N. C., 431, 95 S. E., 775, *Walker, J.,*delivering the opinion of the Court and pointing out the difference between the duties of the trial court and the appellate court in dealing with exceptions to reports of referees, said: 'It must be remembered that a judge of the Superior Court in reviewing a referee’s report is not confined to the question whether there is any evidence to support his findings of fact, but he may also decide that while there is some such evidence, it does not preponderate in favor of the plaintiff, and thus find the facts contrary to those reported by the referee. The rule is otherwise in this court when a referee’s report is under consideration. We do not review the judge’s findings, if there is any evidence to support them, and do not pass upon the weight of the evidence.’ ” *Anderson v. McRae, supra,*pp. 198-9.

In *Mills v. Realty Co.,*196 N. C., 223 (225), we find: “C. S., 578, empowers a trial judge to 'review the report and set aside, modify, or confirm it in whole or in part,’ etc. Thus supervisory power is broad and comprehensive. *Dumas v. Morrison,*175 N. C., 431, 95 S. E., 775. In the exercise of the power the trial judge may recommit the report for the correction of errors and irregularities, or for more definite statement of facts or conclusions of law, and such order recommitting the report for such purpose is not appealable. *Commissioners v. Magnin,*85 N. C., 115; *Lutz v. Cline,*89 N. C., 186; *S. v. Jackson,*183 N. C., 695, 110 S. E., 593; *Coleman v. McCullough,*190 N. C., 590, 130 S. E., 508.”

We think that there was evidence to support the findings of fact by the court below; therefore the judgment in the court below is

Affirmed.