Smith, C. J.
(after stating the case). The exceptions are very numerous, and we deem it necessary to notice only one, that is taken to 'the prosecution of the claim set out in article 5 of the first named causes of action contained in the complaint, and none is taken to the first, whose sole object is the setting aside the conveyance of the right of way over the premises, nor to the damages arising from the failure to put up cattle-guards and to construct crossings. The deed, if effectual, allowed the company to select its route, and would bar all claim for damages incidental to and necessarily incurred in exercising the conferred right This obstacle in the way of any proceeding, under the statute, to acquire an easement in the land, must be removed by annulling the deed,for this method of obtaining the right is given when the
parties are unable to agree upon the terms of the acquirement.
There is no difficulty, then, in prosecuting the action, so far as -it proposes to put the conveyance out of the way, and seeks damages for subsequent injuries, unless it be in the plaintiff’s own inaction to make objection, when he found a new line had been adopted by the defendant, and even accepted compensation for letting the water out of his pond to enable the company to go on with its work and expend largely in constructing the road. This point has been strongly urged in the argument, but as no exception of the kind is shown in the record, it cannot now be entertained, whatever may have been its force if taken in apt time.
The judgment, following the verdict, which affirms the allegations as to the influences brought to bear upon the plaintiff in inducing the making of the deed, will remain undisturbed.
The remaining causes of action are based upon trespasses committed upon the land, and the complaint demands com
pensation in damages therefor, simply as such, and
not
for the value of any permanent right of way, to be acquired over the land, when such damages have been paid. It is obvious, if the judgment is permitted to stand, which gives compensation therefor, the defendant would have no easement or estate in the land, and would be equally exposed to another and successive actions for continuing trespasses, in the use of the road, by running its cars over the track.
The right of eminent domain, possessed by the State, may be exercised when conferred upon public corporations of the class to which the defendant belongs, as decided in
R. & G. R. R. Co.
v.
Davis,
2 D. & B., 451, and many subsequent cases; but it must be exercised, and can only be exercised, in the mode pointed out in the statute. The provision in the act incorporating the defendant company, authorizing the proceeding to condemn lands of an owner over which the road is to pass, when the parties cannot agree on the terms of purchase, renders it “lawful for the president and directors to file a petition, in the name of the company, in the (now extinct) Court of Pleas and Quarter Sessions of the county wherein the land lies, under the same rules and regulations as are now prescribed for laying off public roads in •said county,” under certain restrictions mentioned. Sec. 14.
Authority is given the company, in sec. 17, to enter upon lands for the purpose of surveying a route for the track, and laying off and marking the same, and upon failure of the company to take steps for condemning the land, the same remedy is given the owner, and he is required to proceed, “after the manner and according to the rules provided in the 16th section hereof, and
not
otherwiseSec. 18. The concluding clause of this section declares that “if the owners of said lands shall bring any action of trespass against the company or any of its officers, or any other action but a petition as aforesaid, the defendant may give this act in evi
dence under the general issue or upon a special plea, and it shall bar the said action or suit.”
The abolition of the county courts prevents a literal compliance with the terms prescribed in reference to the tribunal to which application must be made, but the objection disappears by the enactment contained in sections 9 to 22 inclusive of ch. 61, Revised Code, which supersede, at least in some particulars, the method of procedure, and determine the corporate rights and privileges of public corporations found in the charter. ,
By these provisions the railroad company may enter upon land and lay out the route on which to put the road, and either company or proprietor “ may apply by petition” (five days previous notice having been given) “to the County or Superior Court of the county in which the land or some part thereof may be situate, and the Court shall appoint five disinterested and impartial freeholders to assess the damages to the owner for the occupation and use of the land aforesaid.” And the method of proceeding for the condemnation of land, in furtherance of such public enterprises, is furnished in detail in eh. 49 of
The Code,
sec. 1932,
et seq.,
entitled “Railroad and Telegraph Companies.”
In its original form,as found in Acts 1871-72, sec. 13, the procedure for condemnation prescribed is confined to companies formed under the act, but in
The Code,
§ 1943, that clause is reproduced by the addition of the words “ or by special act of the General Assembly,” so that it is now applicable to railroads whether formed under the general law or by special act of incorporation.
It is not material to inquire, to what extent the charter of the defendant, in these features, has been modified by subsequent legislation; though, as not impairing vested rights, we are inclined to the opinion that the modified provisions made on the subject must be pursued, and instead of a jury of view, the freeholders, as directed in section 1945, should
be appointed, whose duty
it is to go upon the premises and hear the proof,
and then make up and return their report to the Clerk, as representing the Superior Couft, for its action thereon, as directed in the section next succeeding.
Plowever this may be, the course pursued in the present case, in which the jury was allowed to ascertain the value of the rights and privileges demanded by the-plaintiff, is wholly without warrant of law; and as no easement has been acquired, so no damages should have been awarded as the consideration therefor, nor could any damages be recovered for the act of entry upon the premises and the constructing and using the road.
The third instruction proceeds upon the idea of a vesting in the defendant of an interest in the land as a right of way over it, and directs the jury to ascertain, as the measure of value thereof, “the difference between what the whole property would have sold for, unaffected by the road, and what it would have sold for as injured (if it was injured) by the construction of the road,” this being “ the measure of damage for
the right of way,”
&c.
The charge is excepted to by the appellant in exceptions 5, 6, 7 and 8, and we think there is error therein.
The counsel for the appellee, in answer to the objection, argues that it should have been taken by demurrer, and has been waived.
Free access — add to your briefcase to read the full text and ask questions with AI
Smith, C. J.
(after stating the case). The exceptions are very numerous, and we deem it necessary to notice only one, that is taken to 'the prosecution of the claim set out in article 5 of the first named causes of action contained in the complaint, and none is taken to the first, whose sole object is the setting aside the conveyance of the right of way over the premises, nor to the damages arising from the failure to put up cattle-guards and to construct crossings. The deed, if effectual, allowed the company to select its route, and would bar all claim for damages incidental to and necessarily incurred in exercising the conferred right This obstacle in the way of any proceeding, under the statute, to acquire an easement in the land, must be removed by annulling the deed,for this method of obtaining the right is given when the
parties are unable to agree upon the terms of the acquirement.
There is no difficulty, then, in prosecuting the action, so far as -it proposes to put the conveyance out of the way, and seeks damages for subsequent injuries, unless it be in the plaintiff’s own inaction to make objection, when he found a new line had been adopted by the defendant, and even accepted compensation for letting the water out of his pond to enable the company to go on with its work and expend largely in constructing the road. This point has been strongly urged in the argument, but as no exception of the kind is shown in the record, it cannot now be entertained, whatever may have been its force if taken in apt time.
The judgment, following the verdict, which affirms the allegations as to the influences brought to bear upon the plaintiff in inducing the making of the deed, will remain undisturbed.
The remaining causes of action are based upon trespasses committed upon the land, and the complaint demands com
pensation in damages therefor, simply as such, and
not
for the value of any permanent right of way, to be acquired over the land, when such damages have been paid. It is obvious, if the judgment is permitted to stand, which gives compensation therefor, the defendant would have no easement or estate in the land, and would be equally exposed to another and successive actions for continuing trespasses, in the use of the road, by running its cars over the track.
The right of eminent domain, possessed by the State, may be exercised when conferred upon public corporations of the class to which the defendant belongs, as decided in
R. & G. R. R. Co.
v.
Davis,
2 D. & B., 451, and many subsequent cases; but it must be exercised, and can only be exercised, in the mode pointed out in the statute. The provision in the act incorporating the defendant company, authorizing the proceeding to condemn lands of an owner over which the road is to pass, when the parties cannot agree on the terms of purchase, renders it “lawful for the president and directors to file a petition, in the name of the company, in the (now extinct) Court of Pleas and Quarter Sessions of the county wherein the land lies, under the same rules and regulations as are now prescribed for laying off public roads in •said county,” under certain restrictions mentioned. Sec. 14.
Authority is given the company, in sec. 17, to enter upon lands for the purpose of surveying a route for the track, and laying off and marking the same, and upon failure of the company to take steps for condemning the land, the same remedy is given the owner, and he is required to proceed, “after the manner and according to the rules provided in the 16th section hereof, and
not
otherwiseSec. 18. The concluding clause of this section declares that “if the owners of said lands shall bring any action of trespass against the company or any of its officers, or any other action but a petition as aforesaid, the defendant may give this act in evi
dence under the general issue or upon a special plea, and it shall bar the said action or suit.”
The abolition of the county courts prevents a literal compliance with the terms prescribed in reference to the tribunal to which application must be made, but the objection disappears by the enactment contained in sections 9 to 22 inclusive of ch. 61, Revised Code, which supersede, at least in some particulars, the method of procedure, and determine the corporate rights and privileges of public corporations found in the charter. ,
By these provisions the railroad company may enter upon land and lay out the route on which to put the road, and either company or proprietor “ may apply by petition” (five days previous notice having been given) “to the County or Superior Court of the county in which the land or some part thereof may be situate, and the Court shall appoint five disinterested and impartial freeholders to assess the damages to the owner for the occupation and use of the land aforesaid.” And the method of proceeding for the condemnation of land, in furtherance of such public enterprises, is furnished in detail in eh. 49 of
The Code,
sec. 1932,
et seq.,
entitled “Railroad and Telegraph Companies.”
In its original form,as found in Acts 1871-72, sec. 13, the procedure for condemnation prescribed is confined to companies formed under the act, but in
The Code,
§ 1943, that clause is reproduced by the addition of the words “ or by special act of the General Assembly,” so that it is now applicable to railroads whether formed under the general law or by special act of incorporation.
It is not material to inquire, to what extent the charter of the defendant, in these features, has been modified by subsequent legislation; though, as not impairing vested rights, we are inclined to the opinion that the modified provisions made on the subject must be pursued, and instead of a jury of view, the freeholders, as directed in section 1945, should
be appointed, whose duty
it is to go upon the premises and hear the proof,
and then make up and return their report to the Clerk, as representing the Superior Couft, for its action thereon, as directed in the section next succeeding.
Plowever this may be, the course pursued in the present case, in which the jury was allowed to ascertain the value of the rights and privileges demanded by the-plaintiff, is wholly without warrant of law; and as no easement has been acquired, so no damages should have been awarded as the consideration therefor, nor could any damages be recovered for the act of entry upon the premises and the constructing and using the road.
The third instruction proceeds upon the idea of a vesting in the defendant of an interest in the land as a right of way over it, and directs the jury to ascertain, as the measure of value thereof, “the difference between what the whole property would have sold for, unaffected by the road, and what it would have sold for as injured (if it was injured) by the construction of the road,” this being “ the measure of damage for
the right of way,”
&c.
The charge is excepted to by the appellant in exceptions 5, 6, 7 and 8, and we think there is error therein.
The counsel for the appellee, in answer to the objection, argues that it should have been taken by demurrer, and has been waived. But this is not a case of the joinder of incongruous causes of action in the complaint, over each of which jurisdiction is possessed, but an association of separate alleged causes of action, of which some are within and others without the jurisdiction of the Court, so that redress may be given in the former, and cannot be given in the latter. The cause of action, growing out of the act of appropriating the plaintiff’s real estate to the uses of the company, can be prosecuted only in a single special proceeding, provided in thestatute, in denature exclusive of any other, and which, as said by Ashe, J., in
Holloway
v.
Railroad,
85 N. C., 452,
“ has taken away the common law remedy.” The allegations which introduce the claim for damages growing out of the construction of the road, and for which compensation must be sought in the statutory mode of procedure, are but harmless surplusage, and may be disregarded in the pursuit of such as are recoverable and are consequent upon a faulty construction of the road
(Singer Manufacturing Co.
v.
Barrett,
95 N. C., 36); and for such, redress may be had in the present action.
The Code,
§ 1975. '
The complaint does not profess to transfer to the defendant any interest in the land, or easement upon it, upon the payment of the assessed damages, and hence no equivalent is secured to the company by making payment.
As while the deed continued in force, and it could be annulled only for the imputed vitiating infirmity, at the instance of those who made it, and by them it was acquiesced in until the bringing of the suit, the condition, the inability of the parties to come to an agreement, did not exist so as to warrant the summary action by petition, and therefore the case stands upon the conferred authority to enter upon the land and build the road. The compensation for this deprivation of property must await the result of the action of the commissioners and its confirmation, and meanwhile the common law remedy for other lawless invasions of the property of another is withheld, unless1 damages supervene afterwards, for which it does afford relief.
We pretermit an inquiry into the sufficiency of other exceptions taken at the trial, to rulings of the Court that have been the subject of earnest controversy upon the hearing, because not necessary in disposing of the case on appeal.
The counsel for appellant conceded the plaintiff’s right to recover damages as assessed in the issues for defendant’s neglect to put up cattle-guards and provide proper crossings at the intersection of the railroad with plaintiff’s plantation
roads, and the judgment, so far as it awards these and sets aside the conveyance, must be affirmed, and reversed so far as it awards damages for the building of the road over the new instead of the original route by the mill.
Modified and affirmed.