45 S.E. 549 | N.C. | 1903
This was a proceeding begun before the clerk under The Code, secs. 1944 and 1946, to condemn a right of way for a railway. The defendants appealed to the judge before the appointment of commissioners and the coming in of their report, the time at which an appeal in such cases is authorized by The Code, sec. 1946. The judge remanded the case to be proceeded in as required by that section. Thereupon the defendants appealed to this Court. No appeal lay, as we have already held in this cause at this term, upon the defendant's application for a writ of prohibition to prevent the clerk from proceeding under the judge's order of remand, pending this attempted appeal, which must therefore be dismissed.
If interlocutory appeals were allowable in such cases, they could be repeated again and again, on divers pretexts, and great delays to the detriment of the public interest would hamper and impede and render almost impossible the construction of new railways. It is conceivable that such appeals might be greatly fostered by lines already in existence, if averse to threatened competition. Therefore, the statute, The Code, secs. 1945, 1946, is explicit in denying interlocutory appeals in proceedings for condemnation of right of way for railroads. The interest of the landowner is preserved by the payment into court of the full assessed value of the strip of land condemned, which is required before the corporation can enter upon the premises. The decisions are uniform *135
that the above is the unmistakable meaning and the reason for the statute. Telegraph Co. v. R. R.,
The defendants contend, however, that an appeal does lie, because there is here a plea in bar. But the statute and the decisions make no exception when there is a plea in bar in cases of condemnation. Indeed, in R. R. v.R. R.,
This is a proceeding in rem, acting upon the property, and service of summons and complaint upon the defendant Newton, a nonresident, in the mode prescribed by chapter 120, Laws 1891, Clark's Code (135) (3 Ed.), sec. 218 (8), which was here used, "is a convenient and probably a more sure way of bringing home to the defendant the notice which was formerly made solely by publication." Long v. Ins.Co.,
The defendants contend further, that the charter of the plaintiff as a railroad company is a fraud, and that the real object is not the conveyance of freight and passengers, but merely to operate a lumber road. If this is true, it would be a fraud upon the public to obtain the right of condemnation by such evasion, and upon a direct attack by quo warranto the charter would be vacated upon the establishment of the fraud, and the judge might make appropriate orders in that cause to preserve the rights of the relator in such action pendente lite, upon sufficient facts shown. That this railroad is to be only five miles long and is to run, not from one town to another, but from a river to a creek, raises a strong doubt as to the bona fides of the charter; but that is an issue of fact for a jury in a direct proceeding to attack the charter for fraud. Upon the face of the papers, the charter is regular and has been regularly granted. "Of course, the charter of a corporation cannot be collaterally attacked, and a direct proceeding must be brought to annul it. But if the charter were on its face inoperative and void, a court would so declare it in any proceeding to condemn land by virtue of the right of eminent domain." R. R. v. Stroud,
It was also held in Stroud's case, supra, that the filing of a proper profile is a condition precedent before an order of condemnation should be granted. The judge here allowed an amendment to file a (136) better profile, as he had power to do. R. R. v. Newton, ante, 132; Faison v. Williams,
Appeal dismissed.
Cited: Porter v. Armstrong,