Volume 34 — North Carolina Court of Appeals Reports

1. Physicians, Surgeons and Allied Professions 15; Evidence 50 — malpractice — expert medical testimony — similar locality rule In a malpractice action against an orthopedic surgeon, the proper standard of care was not dictated by the standard of care customary among orthopedic surgeons who are Diplomates of the American Board of Orthopedic Surgeons regardless of the community of practice, since the "same or similar community" rule applies to health providers in this State; therefore, the trial court properly excluded the opinion testimony of a Diplomate of the American Board of Surgeons who practices orthopedic surgery in Smithtown, N.Y., concerning the standard of care exercised by defendant, a Diplomate of the American Board of Orthopedic Surgeons who practices orthopedic surgery in Salisbury, N.C., where there was no evidence showing whether the community in which the witness practices is similar to the community in which defendant practices or whether the witness was familiar with the standard of professional care and competence customary for Diplomates of the American Board of Orthopedic Surgeons practicing in a community similar to the one in which defendant practices. G.S. 8-93. 2. Physicians, Surgeons and Allied Professions 15; Evidence 49.2 — expert medical testimony — hypothetical questions — assumption of matters not in evidence The trial court in a medical malpractice case did not err in the exclusion of opinion testimony by plaintiff's expert medical witness where hypothetical questions asked the witness assumed the existence and use by the witness of hospital records, letters, a physician's report and x-rays which were not introduced into evidence. 3. Physicians, Surgeons and Allied Professions 16 — malpractice action — inapplicability of res ipsa loquitur The doctrine of res ipsa loquitur was inapplicable in an action to recover damages allegedly resulting from defendant orthopedic surgeon's negligence in performing a laminectomy diskectomy on plaintiff.<page_number>Page 2</page_number> 4. Physicians, Surgeons and Allied Professions 17 — malpractice — departing from approved procedures In this action against an orthopedic surgeon to recover for injuries sustained when plaintiffs left iliac artery and inferior vena cava were lacerated during a laminectomy diskectomy, plaintiff's evidence was sufficient to justify, though not to require, a jury finding that defendant did not exercise reasonable diligence in the application of his knowledge and skill in that he failed to follow the procedure of always placing the blunt end of a certain surgical instrument against the bony wall of the upper or lower vertebra before opening and closing it, and he allowed the instrument to extend three millimeters through the anterior opening of the disc space where he opened and closed the biting end and thereby lacerated the iliac artery and vena cava.

1. Rules of Civil Procedure 41 — trial by judge without jury — motion to dismiss A motion to dismiss made pursuant to Rule 41(b) permits the judge to weigh the evidence, to find facts against the plaintiffs, and to sustain defendants' motion at the conclusion of plaintiffs' evidence even though plaintiffs may have made out a prima facie case which could have precluded a directed verdict for defendants in a jury case; however, the practice of withholding judgment until all the evidence has been presented is considered the better practice except in the clearest cases. 2. Highways and Cartways 12.2 — deed excepting roads — obstruction by landowner improper In an action to enjoin defendants from interfering with plaintiffs' use of roads for access to their property, the trial court properly determined that defendants had no right, title or interest in the roads except as joint users with other landowners where the evidence tended to show that the roads were excepted from the deed which conveyed property to defendants.

1. Narcotics 4 — manufacture of marijuana — close juxtaposition — sufficiency of evidence The State's evidence was sufficient for the jury on the issue of defendants' guilt of the felonious manufacture of marijuana where it tended to show that when officers requested entry into a third person's residence, they heard "motors running" and footsteps going through the house; officers discovered in the kitchen a trash compactor, several bags containing green leaf material, and three blenders filled with a green substance; two of the blenders were running; defendants, the third person, and compressed blocks of marijuana were found in a bedroom next to the kitchen; a trash compactor bag containing compressed marijuana was found in an upstairs bedroom; the trash compactor in the kitchen contained a piece of cardboard which caused it to form blocks the same size as the marijuana blocks found in the downstairs bedroom; and the trash compactor had been purchased by the third person, since evidence of defendants' close juxtaposition to the place where the marijuana was being manufactured was sufficient to overcome their motion for nonsuit on the charge of manufacturing marijuana. 2. Criminal Law 132 — motion to set aside verdict A motion to set aside a verdict as being against the weight of the evidence is addressed to the discretion of the trial judge, and his refusal to grant the motion is not reviewable on appeal absent a showing of abuse of discretion. 3. Criminal Law 124.5; Narcotics 5 — inconsistency in verdict A verdict finding defendants not guilty of possession of marijuana with intent to manufacture but guilty of the manufacture of marijuana will not be disturbed on appeal, since the verdict is not required to be consistent.

Rules of Civil Procedure 26 — discovery of corporation's records — limitation proper In an action to obtain alimony where plaintiff sought discovery of certain records relating to defendant's financial condition and business affairs as chairman of the board of directors of a named corporation, the trial judge properly determined that good cause had been shown and justice required that discovery of the corporation's records be limited; moreover, the trial court properly determined that a prior action between the parties in another county was res judicata and precluded plaintiff from discovery of matters within the scope of the pleadings of the prior action.

1. Master and Servant 55.1 — workmen's compensation — accident defined Within the scope of the Workmen's Compensation Act, the term "accident" has often been defined as (1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause. 2. Master and Servant 67 — workmen's compensation — gas in work area — heart attack — cause of death In an action to recover death benefits under the Workmen's Compensation Act for the death of an employee who died while welding in a large tank used for mixing chemicals, evidence was sufficient to support the finding by the Industrial Commission that there was some gaseous substance or some harmful agent which accumulated in the bottom of the tank and that this substance cut off decedent's oxygen supply, notwithstanding extensive evidence by defendants concerning the employer's precautions in preparing the tank for repair work, where such evidence consisted of testimony by one of decedent's co-workers that he went into the tank to help decedent, that there was "a heavy fume" or something which took his breath away, and that he lost consciousness and was sick as a result of breathing the fumes.<page_number>Page 178</page_number> 3. Master and Servant 67.3 — workmen's compensation — cause of heart attack — finding supported by evidence Testimony by a doctor in response to a properly worded hypothetical question was sufficient to support a finding by the Industrial Commission that a sudden deprivation of oxygen accelerated or aggravated decedent's pre-existing heart condition, thereby triggering a heart attack which resulted in his death.

Insurance 29.1 — group life insurance — change of beneficiary — insurance review form An insured complied with a provision of a group life insurance policy requiring written notice to effectuate a change of beneficiary when, on an insurance review form distributed by his employer, the insured marked through defendant's name and added plaintiff's name as designated beneficiary, and he then signed the form and returned it to his employer, the execution of a change of beneficiary form provided by the insurance company not being required under the policy.

Criminal Law 116 — defendant's failure to testify — jury instructions Where defendant offered evidence by several witnesses but did not testify himself, he was entitled, upon proper request, to have the court tell the jury in substance that his failure to take the witness stand and testify in his own behalf did not create any presumption against him.

Parent and Child 2 — father operating motor vehicle — injury to child — parental immunity In an action by a minor, unemancipated child to recover damages from his father for injuries received by the child when he fell from and was run over by a truck driven by his father on 1 September 1975, the trial court properly granted defendant father's motion for summary judgment on the ground of parental immunity, since the restriction of that doctrine to allow suit between parent and child arising from a motor vehicle accident as provided in G.S. <cross_reference>1-539.21</cross_reference> applied only to causes of action accruing on and after 1 October 1975.<page_number>Page 213</page_number>

False Pretense 2.2 — insufficiency of indictment to charge offense An indictment which purportedly charged defendant with a violation of G.S. <cross_reference>14-100</cross_reference> was insufficient to charge a crime where it did not allege that defendant obtained or attempted to obtain anything.

1. Vendor and Purchaser 3 — contract to convey land — reference to deed of trust — description of land sufficient In an action for the specific performance of a contract to convey land, the description contained in the contract, though not a metes and bounds description, was sufficient to meet the requirements of the statute of frauds, since the description gave the acreage and referred to a deed of trust, naming the parties and the date thereof, in which the land was described with particularity. 2. Vendor and Purchaser 3 — contract to convey land — latent ambiguity in description In an action for the specific performance of a contract to convey land where the description of the land was given only by reference to a deed of trust, plaintiff's evidence effectively removed the latent ambiguity of the contract where the deed of trust referred to in the contract was admitted into evidence without objection; defendant, called as an adverse witness, testified that the property described in the deed of trust was the property which was the subject of the contract; and<page_number>Page 291</page_number> defendant testified that he knew the reference to Buncombe County in the contract was in error, that the property was in Henderson County, and that plaintiff knew that also. 3. Vendor and Purchaser 2 — contract to convey land — time of settlement — time not of the essence In an action for the specific performance of a contract to convey land, defendant's contention that plaintiff could not prevail because time was of the essence of their agreement is without merit where the evidence tended to show that settlement under the contract, which was dated October 3, should take place on or before October 15; plaintiff, upon execution of the contract to convey, immediately employed a surveyor to survey the property as provided in the agreement; there was a problem which resulted in the surveyor not finishing his work until late in the afternoon of October 15; plaintiff informed defendant of the problem on the morning of the fifteenth; when the surveyor completed his work and plaintiff attempted to reach defendant, defendant was unavailable; and plaintiff was ready, willing and able to complete the terms of the contract on that day.

Guaranty 2 — continuing guaranty — statute of limitations no bar — no novation — summary judgment proper Where plaintiff sought to hold the corporate defendant liable as principal on a promissory note executed in 1971, one defendant liable as endorser and a guarantor under a separate agreement executed in 1966, and two other defendants liable as guarantors under the 1966 agreement, the trial court properly granted plaintiff's motion for summary judgment against the two defendants as guarantors, since: (1) the statute of<page_number>Page 296</page_number> limitations had not run on plaintiff's cause of action, the 1966 guaranty agreement to plaintiff being, by its own terms, a continuing guaranty which could only be revoked in writing and an absolute guaranty of "payment when due of any and all present or future indebtedness owed by the corporate defendant," and (2) the 1971 promissory note which replaced the open account dealings between plaintiff and the corporate defendant was not a novation which released the two individual defendants from liability on the 1966 guaranty agreement.

Administrative Law 5; Appeal and Error 4 — dismissal of State employee — judicial review — jurisdiction — change of theory on appeal A petitioner who contended in the superior court that such court had jurisdiction under G.S. 143-314 to review his dismissal without a hearing as an employee of a State agency may not contend in the appellate court that the superior court had jurisdiction under G.S. <cross_reference>7A-240</cross_reference> on the ground that he was dismissed because he exercised his constitutional rights of freedom of speech and association, since an appeal has to follow the theory at trial.

1. Criminal Law 169.3 — evidence excluded — similar evidence subsequently introduced — no error Even if the trial court erred in excluding testimony offered by defendant relevant to his defense of entrapment, defendant was not prejudiced, since substantially the same evidence was admitted at other times during the trial without objection. 2. Criminal Law 87.4 — witness impeached — character evidence on redirect examination — evidence admissible After the impeachment of a witness, evidence is admissible to restore and strengthen the credibility of the witness; therefore, the trial court in a prosecution for possession and sale of marijuana did not err in allowing the State to introduce evidence of a witness's good character where the witness had been subjected to vigorous cross-examination in a somewhat successful effort to discredit her testimony in chief. 3. Criminal Law 88.3 — cross-examination on collateral matters — witness's answers binding Defense counsel is bound by the witness's answer to cross-examination on collateral issues and may not contradict it by extrinsic evidence or other testimony. 4. Criminal Law 169.3 — testimony admitted over objection — subsequent similar testimony admitted without objection The admission of testimony over objection is harmless to defendant when he elicits the same testimony on cross-examination for the purpose of amplifying the information given on direct examination. 5. Criminal Law 7.1 — entrapment — no showing as a matter of law In a prosecution for possession and sale of marijuana, evidence was insufficient to show entrapment as a matter of law where it tended to show that the relationship between defendant and an undercover agent was very casual; the agent and defendant had met only once before the sale was consummated; defendant agreed to acquire marijuana and sell it to the agent after only two requests from the agent, both of which were made over the phone; and defendant refused the request for a sale made in the first phone call only because there was no marijuana available. 6. Criminal Law 88.4 — cross-examination — violation of probation terms — admissibility of evidence It was within the trial judge's discretion to allow cross-examination regarding violations of the terms of probation and the defendant's failure to disclose criminal activity, since both of these matters tended to cast light on the character of the witnesses.<page_number>Page 393</page_number> 7. Criminal Law 117.3 — undercover agent — instruction to scrutinize testimony — no error An instruction that the jury should scrutinize the testimony of an undercover agent in the light of the witness's interest or bias, but that if the jury should conclude that he is telling the truth his testimony is to be given the same value as any other believable evidence is without error. 8. Criminal Law 117.3 — undercover agent — instruction on scrutiny of testimony proper The court's instruction, "You may find from the evidence that the State's witness, Judith Lynn Melvin, is interested in the outcome of this case because of her activities as an undercover agent," resulted in no prejudice to defendant even though it allowed the jury to consider whether Miss Melvin was in fact an agent before it was required to scrutinize her testimony, since the role of the witness Melvin as an undercover agent was unchallenged at trial and there could be no confusion among the jurors as to whether her testimony was to be subjected to close scrutiny. 9. Criminal Law 115 — instruction on lesser included offense — consideration of greater offense first — no error In a prosecution for possession with intent to sell and sale of marijuana, there was no error in a charge directing the jury to deliberate first on the greater offense of possession with intent to sell and that they must consider the lesser included offense of possession of a controlled substance only after they decided that defendant was not guilty of the greater offense. 10. Criminal Law 7, 121 — entrapment — burden of proof on defendant — instructions proper Mullaney v. Wilbur, <cross_reference>421 U.S. 684</cross_reference>, does not require that the State carry the burden of proving that defendant was not entrapped in order to prove the requisite criminal intent. 11. Conspiracy 7 — identity of conspirators — instructions proper In a prosecution for possession with intent to sell and sale of marijuana and conspiracy, the trial court's instructions clearly indicated that the conspiracy for which defendant was tried was between defendant and one Minshew, not between defendant and an undercover agent. 12. Conspiracy 3.1 — undercover agent — circumstances under which conspiracy can exist There can be no conspiracy between a defendant and one who only feigns acquiescence in a crime; however, if an undercover agent acts in conjunction with more than one person to violate a law, his participation will not preclude a conviction of the others for a conspiracy among themselves.

1. Automobiles 126.4 — officer administering breathalyzer test — court's attempt to clarify testimony — no expression of opinion In a prosecution for driving under the influence, the trial court did not express an opinion on the evidence when, during testimony by the officer who administered the breathalyzer test, the court attempted to clarify the testimony of the witness by having him relate exactly what rights were explained to defendant. 2. Automobiles 126.3 — breathalyzer test — time to exercise rights — full thirty minutes provided by statute not mandatory G.S. <cross_reference>20-16.2</cross_reference> which provides for the administering of breathalyzer tests allows a delay not in excess of thirty minutes for defendant to exercise his rights, and a delay of less than thirty minutes is permissible where, as in this case, the record is barren of any evidence to support a contention, if made, that a lawyer or witness would have arrived to witness the proceeding had the operator delayed the test for the full thirty minutes. 3. Criminal Law 86.2 — cross-examination of defendant — prior convictions — presumption of regularity Defendant's contention in a prosecution for driving under the influence that the State must show that defendant was represented by counsel or voluntarily waived his right to counsel at prior convictions before the convictions could be used by the State to impeach defendant is without merit, since there was no burden on the State to prove the<page_number>Page 448</page_number> regularity of the convictions, but instead the burden was on defendant to show the prior convictions to be void and therefore improper subjects of cross-examination.

1. Rules of Civil Procedure 4 — service of process on foreign corporation — registered mail — service on proper person In an action against a foreign corporation, plaintiff made a prima facie showing that service of process by registered mail, return receipt requested, was made on a proper person where the return receipt included in the record showed that the summons, which was directed to the corporate defendant and addressed to defendant's president, was received by an "authorized agent," and an affidavit of plaintiff's attorney averred that the corporate defendant did not have an authorized agent for service of process in this State, that he had sent a copy of the summons and complaint to defendant by registered mail, return receipt requested, and that process had been received by an authorized agent. G.S. <cross_reference>1A-1</cross_reference>, Rule 4(j)(9)(b). 2. Rules of Civil Procedure 4 — service of process by registered mail — initiation by sheriff not necessary There is no requirement that service of process by registered or certified mail be initiated by the sheriff of the county in which the process is issued. 3. Rules of Civil Procedure 4 — service of process by registered mail — showing of proper addressee Plaintiff made a prima facie showing that the summons and complaint in an action against a foreign corporation were mailed to the proper addressee — the president of the corporate defendant. 4. Rules of Civil Procedure 4 — service of process by registered mail — due process The corporate defendant was not denied due process by service of process on it by registered letter addressed to its president where the return receipt discloses that the summons and complaint were actually delivered to an authorized agent of defendant.<page_number>Page 551</page_number>

1. Criminal Law 89.3 — witness's prior statements — admissibility for corroboration Prior consistent statements of a witness are admissible to corroborate his testimony. 2. Criminal Law 113.9, 114 — jury instructions — expression of opinion — misstatement of evidence The defendant has the burden of proving an improper expression of opinion by the trial court during jury instructions and that such an expression was prejudicial; defendant must also call a misstatement of the evidence to the attention of the trial judge, or such misstatement may not be the basis for a proper assignment of error. 3. Assault and Battery 15.3; Weapons and Firearms — jury instructions — facts constituting assault — shotgun as deadly weapon — intent to kill not defined In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and discharging a firearm into an occupied dwelling, the trial court properly described the facts constituting the assault for which defendant was charged, properly instructed the jury<page_number>Page 568</page_number> that a shotgun is a deadly weapon and that the term firearm is self-explanatory, and did not err by failing to define intent to kill, since that phrase is also self-explanatory. 4. Assault and Battery 15.6 — self-defense — jury instructions In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and discharging a firearm into an occupied dwelling, the trial court's instruction properly placed the burden of disproving self-defense upon the State, and the instruction also informed the jury that self-defense need be only apparently necessary.

1. Criminal Law 18.4 — guilty plea in district court — trial de novo in superior court A criminal defendant has a right to appeal from the district court to the superior court for a trial de novo even though he entered a plea of guilty in the district court. G.S. <cross_reference>7A-290</cross_reference>. 2. Criminal Law 18 — appeal to superior court — authority to remand for compliance with district court judgment Where a defendant has appealed for trial de novo in superior court, a superior court judge has no authority, absent satisfactory cause shown or without the consent of the defendant, to dismiss the appeal and remand the case for compliance with the judgment of the district court. 3. Criminal Law 18.4, 23.4 — plea bargain in district court — appeal to superior court — trial on original charges Where a defendant originally charged in warrants with felonies entered pleas of guilty of misdemeanors in the district court pursuant to a plea bargaining agreement with the State and then appealed to the superior court for a trial de novo, the State was not bound by its agreement to forego the greater felony charges and could properly try defendant on the original felony charges in the superior court.

Courts 15; Infants 11 — armed robbery charge against juvenile — transfer for trial as adult A district court judge did not abuse his discretion in transferring an armed robbery charge against a fifteen-year-old male to the superior court for trial as in the case of an adult where the judge found that the best interest of the State would thereby be served because of the deadly nature of the assault involved in the armed robbery, defendant's history of delinquency, and the interest of the State in protecting its citizens from those who have demonstrated that they will threaten human life in order to deprive others unlawfully of their property. G.S. 7A-280.

1. Narcotics 4.1 — possession of marijuana — marijuana found in mobile home — mobile home as defendant's residence — sufficiency of evidence In a prosecution for possession of marijuana with intent to sell and deliver, evidence was sufficient to show that a mobile home in which officers found over fourteen grams of marijuana was the residence of defendant where it tended to show that a search warrant was issued to search defendant's premises; the officers went to the premises; they testified several times that the mobile home was the residence of defendant; defendant came to the premises about five to ten minutes after the officers started their search; when defendant arrived the search warrant was read to him and a copy delivered to him; defendant's stepson later arrived at the premises; and correspondence bearing defendant's name was found in a bedroom in the mobile home. 2. Criminal Law 158.2; Narcotics 4.1 — manufacture of marijuana — marijuana growing in fields — connection with defendant's residence — sufficiency of evidence In a prosecution for manufacture of marijuana, defendant failed to support adequately his argument that fields near his residence in which officers found marijuana growing were not shown to have any connection with defendant or his residence, since officers testified at trial concerning the fields and their connection with defendant's residence using a blackboard diagram; the diagram and testimony related thereto were sufficient to cause the trial judge to submit the case to the jury and to cause the jury to return its verdict of guilty; and defendant failed to include the diagram or a picture thereof in the record on appeal. 3. Criminal Law 99.4 — trial court's comment — no expression of opinion on evidence In a prosecution for manufacture of and possession with intent to sell marijuana where defendant claimed that there was no showing that the residence where officers found marijuana belonged to defendant, the trial court did not express an opinion that the fact of defendant's residence had been proven where the court, in explaining to defense counsel why an objection was groundless, repeated accurately the substance of a witness's testimony with respect to defendant's residence. 4. Narcotics 3.1 — possession and manufacture of marijuana — marijuana growing in field — remoteness of evidence In a prosecution for manufacture of and possession with intent to sell marijuana, the trial court did not err in admitting evidence of marijuana found in a field to the rear of a store operated by defendant, and defendant's contention that the evidence was too remote chronologically and geographically is without merit.<page_number>Page 684</page_number> 5. Narcotics 2 — possession with intent to sell marijuana — no variance between indictment and proof There was no fatal variance between an indictment which alleged possession with intent to sell and deliver "more than one ounce of marijuana" and evidence which showed that defendant possessed fourteen grams of marijuana.

1. Trover and Conversion 1; Uniform Commercial Code 64 — conversion of securities by stock broker — sale upon forged signature Plaintiff executor's complaint stated a claim for relief against defendant stock broker for conversion of securities owned by testatrix by selling such securities when the husband of testatrix, without her authority, delivered to defendant broker the certificates with stock assignment instruments bearing the forged signature of testatrix, the provision of G.S. 25-8-318 purporting to protect a broker who transfers securities at the insistence of a principal who has no right to dispose of them being available only as a defense, with the burden on defendant to present evidence that it acted in good faith and in accordance with reasonable commercial standards. 2. Uniform Commercial Code 25; Banks and Banking 9.2 — draft "payable through" bank — bank as collector — maker as drawee Where a draft declared that it was "payable through" a bank, such bank is deemed to be a collecting bank which was not authorized to pay the instrument but only to make presentment to the drawee, G.S. 25-3-120, and defendant stock broker assumed the status of a drawee when it made a "payable through" draft with plaintiff executor's testate as payee. 3. Banks and Banking 11.2; Trover and Conversion 1; Uniform Commercial Code 30 — payment of forged drafts — conversion by maker Plaintiff executor's complaint was sufficient to state a claim for relief against defendant stock broker for conversion of drafts where it alleged that defendant issued drafts payable through a bank to plaintiffs testate and that defendant paid the drafts upon the forged indorsements of plaintiff's testate. G.S. <cross_reference>25-3-419</cross_reference>(1)(c).

1. Negligence 59.2 — licensee — owner's duty When a person enters upon the premises of another solely and exclusively in pursuit of his own pleasure, he is a licensee, and an owner owes a licensee only the duty to refrain from injuring him wilfully or through wanton negligence and from doing any act which increases the hazard to the licensee while he is on the premises. 2. Negligence 59.3 — swimming pool — licensee's death — no negligence of owner In an action to recover for the wrongful death of intestate who was a licensee on defendant's property, having gone there for the purpose of swimming, evidence was insufficient to show that defendant was wilfully or wantonly negligent in the operation and maintenance of the pool; the failure of defendant to provide lifeguards and rescue equipment at his pool did not amount to negligence in light of the absence of any regulation requiring the same and the presence of the "swim at your own risk" notice; and plaintiff failed to show that the availability of lifeguards or rescue equipment would have prevented intestate's death. 3. Negligence 30.1 — manufacturer of swimming pool — insufficient evidence of negligence In an action to recover for the wrongful death of intestate which occurred when he dove from a board into a pool manufactured by defendant, evidence was insufficient to show negligence in the design and construction of the pool where evidence disclosed that the design of the pool was in compliance with applicable slope requirements, and there existed substantial doubt as to whether certain recommendations were even applicable to the subject pool because of the height of the diving board.

Easements 8.3 — power line right-of-way — right to cut trees The trial court properly granted summary judgment for defendant power company in an action to recover damages for the allegedly wrongful cutting of trees on a right-of-way granted by plaintiffs to the power company since the right-of-way agreement specifically gave the power company the right to clear trees from the right-of-way, plaintiffs' right to grow "crops" on the right-of-way did not include trees, and the power company by the terms of the agreement did not waive its right to cut the trees by agreeing at various times to allow trees under 16 feet tall to remain on the right-of-way.