Virginia & Carolina Southern Railroad v. McLean

74 S.E. 461, 158 N.C. 498, 1912 N.C. LEXIS 75

• Court: Supreme Court of North Carolina
• Decided: April 3, 1912
• Status: Published

Opinion

Hoke, J.

Under tbe general law, Revisal, secs. 2575 et seep, and ordinarily under special statutes applicable, only an easement passes to tbe railroad under condemnation proceedings, and that and tbe effect of it is tbe interest usually involved in such an inquiry. In section 2587, tbe one which more especially refers to tbe judgment in these cases and tbe vesting of tbe title, tbe determinative language is: “And on tbe payment by said company»of tbe sum adjudged, together with tbe costs and counsel fees allowed by tbe court in tbe office of tbe clerk, tben and in tbat event all persons wbo bad been made parties to tbe proceedings shall be divested and barred of- all right, estate, and interest in such easement in such real estate during tbe corporate existence of tbe company aforesaid; and this view has very generally prevailed with us. Parks v. R. R., 143 N. C., 289; R. R. v. Sturgeon, 120 N. C., 225.

In practical application of this principle, tbe Court has held tbat to tbe extent tbat tbe right of way is not presently required for tbe purposes of tbe road, it may be occupied and used by tbe original owner in any manner not inconsistent with tbe easement acquired. Lumber Co. v. Hines Bros., 126 N. C., 254. A position tbat finds support in a line of cases which bold tbat for any additional burden put upon tbe right of way not properly embraced in tbe general purposes for which condemnation was bad, tbe compensation shall accrue to tbe owner and not to tbe company. Brown v. Power Co., 140 N. C., 333; Hodges v. Telegraph Co., 133 N. C., 225. And it has been further decided tbat this right of way, when once acquired, may be occupied and used by tbe company to its full extent, whenever tbe proper management and business necessities of the road may require, and tbe company is made tbe judge of such necessity. R. R. v. Olive, 142 N. C., 257-275.

Tbe easement, tben, and its effect on tbe property being tbe question involved, tbe law aims at making tbe owner a “just compensation” for tbe injuries likely to arise from tbe imposition of such a burden upon'the land, tbe statute so requires, and, stated in a general way, tbe rule is to “Award tbe owner tbe difference in tbe market value of tbe whole lot or tract before tbe -taking and the market value of what remains to him after such taking, uninfluenced by any general rise in values of property due to tbe improvement.” Elliott on R. R., sec. 995 (2d Ed.). In determining this difference, and owing to tbe fact that tbe easement is perpetual in its nature and in all probability likely to become permanent, and to tbe position just referred to, tbat tbe entire right of way may be at any time appropriated and used for railroad purposes whenever in tbe judgment of the company such uses is required^ it -is held by tbe weight of authority that the damages allowed the owner, as a general rule, shall include the market value of the land actually covered by the right of way, subject to the modification that under special circumstances, showing, for instance, the existence of mineral or other deposits of value below the surface to the extent that they could be made available to the owner without interference with the easement, such conditions should be considered by the jury in estimating the damage to be allowed on this account. Brown v. Power Co., 140 N. C., 333; R. R. v. Land Co., 137 N. C., 330-335; Hollinsworth v. R. R., 63 Iowa, 443; Weyer v. R. R., 68 Wis., 180; So. Pa. R. R. v. San Francisco So. Union, 146 Cal., 490; Lewis on Eminent Domain (3d Ed.), sec. 694.

In R. R. v. Land Co., supra, speaking to the question of allowing the market value of the land actually covered by the right of way, Associate Justice Douglas, delivering the opinion, said: “It is well settled that the defendant is entitled to recover not only the value of the land taken, but also the damage caused to the remainder of the land. ^ Even if the plaintiff should not use the entire right of way, the rule would be the same, as it is not what the plaintiff railroad actually does, but what it acquires the right to do, .that determines the quantum of damages.”

In addition to market value of the land actually taken, the compensation to be allowed the owner shall include the damage done to the remainder of the tráct or portions of land- used by the owner as one tract, and in ascertaining this amount the rule generally obtaining in this State requires that there shall be deducted from the estimate the pecuniary value of any benefits or advantages which are special and peculiar to the tract in question, but not for the benefits or advantages shared in common with other lands of like kind in the same vicinity. R. R. v. Platt Land, 133 N. C., 266; R. R. v. Wicker, 74 N. C., 220; Freedle v. R. R., 49 N. C., 89; Bost v. Cabarrus, 152 N. C., 535. There are some helpful suggestions in these authorities on the question of general and special benefits, but there being no exception to the charge of the court in this respect, the matter is not further pursued, and on consideration of the principles stated, we are of opinion that there was no reversible error in allowing recovery for the market value of the land covered by the right of way as an element of damages. The judgment is therefore affirmed.

No error.