18 S.E. 653 | N.C. | 1893
The facts were as follows:
1. That C. N. Simpson owned the whole of lot No. 42 when (597) the defendant railroad company entered upon and completed its road across the same.
2. That the defendant railroad company entered upon the completed its road across said lot in November, 1874, its track and actual possession being upon and confined to that portion of said lot conveyed to the defendant company in the deed above set forth.
3. That all the land embraced in the said deed of C. N. Simpson, which is the southwestern half of said lot No. 42, is within 100 feet of the center of the track of the defendant railroad company, as laid down by it when it entered and completed its road across the northeastern half of said lot No. 42, in November, 1874.
4. The several acts of the Legislature chartering the defendant company, and the companies to whose rights it succeeded, were considered in evidence, and they are hereby referred to as a part of this case.
C. N. Simpson, a witness for the plaintiff, testified as follows: "Neither myself nor the railroad company instituted proceedings for condemnation. *435 Colonel Fremont was superintendent at the time the railroad entered and completed its road across lot No. 42."
Exception 1. — Question: "State whether the deed of 7 July, 1875, made to the C. C. Railroad Company for the northeastern half of lot No. 42, was the consummation of a contract with the said company, by which you consented for said company to build its road across your land?"
The defendant, waiving objection to the leading character of the question, objected because the same was incompetent, and it did not state that the contract was in writing. Witness then stated that there was no written contract.
(Objection sustained. Exception by plaintiffs.)
Question: "Why did you convey the whole of Lot No. 42 to the railroad company?"
After objection by defendant witness stated that it was because Mr. Frye said the company did not need any more. "Mr. (598) Frye was civil engineer, but I think he was acting as roadmaster at the time. He surveyed that part of the lot I conveyed to the company, and it was to him I delivered the deed."
Exception 2. — Upon the foregoing evidence and admissions the court stated that it would charge the jury that more than two years having elapsed after the completion of the railroad through the land, and before the commencement of this suit, it would instruct the jury that the plaintiff's claim for compensation was barred by the statute of limitations and the plaintiffs could not recover. (Plaintiffs excepted.)
The court so instructed the jury, whereupon the jury responded to the issues as follows:
"1. Is the feme plaintiff the owner of the land described in the complaint? Answer: `No.'
"2. Is her right to recover compensation barred by the statute of limitations? Answer: `Yes.'"
Plaintiffs excepted, and appealed from the judgment for defendants. The right of the State to take private property rests upon the ground that there is public necessity for such appropriation, and can be exercised only where the law provides the means of giving adequate compensation to the owner. Where the power to appropriate has been given by statute, without sufficient provision for the payment of damages, it has been held to be the intent of the Legislature that *436 (599) the right of eminent domain should be exercised only after first obtaining the consent of those affected. R. R. v. R. R., 2 Gray, 1; Matter of Flat Bush Avenue, 1 Barb., 286; Matter of Hamilton Avenue, 14 Barb., 414; 1 Potter Corp., sec. 168.
Text-writers and courts classify the methods of obtaining the right of way for railroads as of three or four kinds, the difference between two of the modes being only that which arises from entering into an executory contract for purchase in one instance, and taking an executed conveyance for the same interest in the other. 1 Harris on Dom. Ry. Corp., 35; Beattie v. R. R.,
The right of the owner to recover damages for the taking by a railway company depends in any case upon the answer to the test question, whether the corporation has already acquired a vested interest in the land, and whether the owner has a still subsisting right to recover damages for the assertion of dominion over it. Westbrook v. North,
In order to ripen title in the occupant, "possession (said (601)Pearson, C. J., in Osborne v. Johnston,
For the reasons given, we think that the court below erred in instructing the jury that the plaintiff's claim was barred by the lapse of time, and a new trial must therefore be awarded.
New trial.
Cited: Jones v. Comrs.,
(604)