Phifer v. . the Carolina Central Railroad Co.

72 N.C. 433

Opinion

Settle, J.

This action must be dismissed.

The appeal taken by the defendant from the assessment of damages by the commissioners appointed in pursuance of the charter under which the defendant is acting, brought the whole ■case into the Superior Court, where the plaintiffs can have every right which they seek in this action adjudged and determined.

Public policy forbids the suspension of operations on works of internal improvement during the pendency of litigation to ascertain the damages to which parties may be entitled. But if the allegations of the plaintiffs that the defendant has mortgaged its road for more than it is worth, be true, the defendant should be required to give security that it will pay to the plaintiffs such damages as may be finally assessed against the Company.

This demand is so reasonable, especially since the Company is authorized to mortgage its roaá to the extent of $25,000 per mile, that the refusal to comply with it at once gives ground for the suggestion of the plaintiffs that the defendant is seek, ing to avoid the payment of damages both now and here after.

Let this action be dismissed at the cost of the plaintiffs.

PeR CuRiah. Action dismissed.