175 N.C. 638 | N.C. | 1918
Lead Opinion
It is true the Court has held in McIntyre v. R. R., 67 N. C., 278, and other cases, that in an application to acquire a railroad right of way the statutory methods must be pursued, and this may still be the correct ruling as to the preliminary entry upon land and the acquisition of the same for such purposes, but it is also held, in numerous cases, that where a railroad or other public service corporation has made the entry, appropriated the right of way, constructed, its road and is operating the same, and neither party has seen fit to resort to the statutory method, the owner of the land has the right, at his election, to sue for permanent damages, and on payment of the same the easement will pass to the defendant. This was so held as to railroads in Caviness v. R. R., 172 N. C., 305; Bennett v. R. R., 170 N. C., 389; Porter v. R. R., 148 N. C., 563; Beasley v. R. R., 145 N. C., 272. As to telegraph companies in Phillips v. R. R., 130 N. C., 582. As to municipalities in the case of streets, etc., in Harper v. Lenoir, 152 N. C., 723. As to nuisances created by discharges of sewage where the right to do so may be protected by the exercise of the right of eminent domain, in Rhodes v. Durham, 165 N. C., 679. As to trespass by flow of water in cases where private right is subordinated to the public good, as in Greer v. Waterworks, 127 N. C., 349.
McIntyre and like cases were decided for the reason, chiefly, that at that time it was generally considered that the statutory proceeding was the only mode by which the companies could acquire a right of way and obtain protection from continued and ever repeated actions of trespass on the part of the owner, but later, when the Court had approved and emphasized the right of acquiring an easement in these cases by a suit for permanent damages and the payment of the same, as in Ridley v. R. R., 118 N. C., 996, and subsequent cases, it is regarded as correct doctrine that, where a defendant has entered, constructed its work and
Under our system, county commissioners are not clothed with judicial powers and, representing the opposing side, they could not exercise them in such a case if they were. A petition to them, therefore, should he properly regarded as a preliminary step before an administrative hoard, and is in no sense jurisdictional in its nature. This being true, the defendants have waived their right to insist on such a protection by an absolute denial of plaintiff’s right, for by correct interpretation, these pleadings do deny plaintiff’s right and raise issues both as to her ownership of the land and as to the injury. "Why attempt a petition to an administrative board who, on the record, have denied plaintiff’s right and put her to proof on the essential questions involved? And, further, we incline to the opinion that the letter addressed to the board should be construed and held a sufficient compliance with the statute. While the proposal for settlement made by plaintiff in that letter calls it an arbitration, it clearly refers to the damages suffered and the sources of it; makes claim for the same and proposes further “that plaintiff is willing to have'this matter settled by arbitration by three good men who can assess the damages, this being the number specified in the statute.” “Three disinterested freeholders shall assess the damages” is the provision of the law, and we think the commissioners should have so construed her application and' responded to it by appointing the commissioners, or by having them selected by the sheriff as the statute requires. The powers given to the commissioners are very broad, and while they are in accord with the law on the subject (S. v. Jones, 139 N. C., ’613), when the numbers of people that may be affected are considered, these powers should not be too rigidly construed to the injury of the landowners.
• All of plaintiff’s lot, constituting her front yard of 7 feet, has been taken across its full width and the sidewalk laid at her very door. She has written a letter to the commissioners asking, in effect, that three jurors assess her damages, which has been denied by defendants. She then sue's, and both her ownership and damages are denied, and after she has recovered her damages before the jury, the defendant asks that her suit be dismissed and that she be directed to begin over and in some other ’way. • To what purpose or in what way? The statute provides that the
The facts in evidence do not justify such a judgment nor should the Court uphold the position of the defendant.
Affirmed.
Concurrence Opinion
I am unable to concur in the opinion of the Court, as I think it overrules a long line of cases holding, upon the authority of McIntyre v. R. R., 67 N. C., 278, that where there has been a condemnation of property for public uses, the recovery of compensation by the owner for taking his property must be obtained through the particular remedy given by the statute, as the latter takes away, by clear implication, the common law remedy, which was an action of trespass on the case, and is a substitute for it. The opinion of Justice Rodman in that ease also states that the landowner is by the statute impliedly “deprived of his common-law remedy,” that being wholly superceded by the one given in its stead, which is a substantial and adequate one, and not merely illusory. It has been held ever since our Mill Act of 1809 that such is the law, and that the specific remedy for damages must be pursued.
Chief Justice Ruffin in Gillette v. Jones, 18 N. C., 339, referring to and quoting from an earlier case in which Chief Justice Taylor wrote the opinion, said: “When there is in fact an overflowing of the land, the jurisdiction certainly attaches; and the purposes of justice then forbid a construction which will prevent the remedy, provided in the act from being commensurate to the whole injury arising from the erection of a nuisance of this kind, unless the words themselves plainly and conclusively express the contrary. Indeed, very soon after the act passed (in January, 1816) the Supreme Court, in Mumford v. Terry, 2 Car law Repository, 425 (4 N. C., 309), construed it (the act) as extending to all cases. The Chief Justice, Taylor, emphatically says, upon its terms and design taken together, ‘that in every ease of a person receiving an injury from the erection of a mill, a petition must be filed, in order to ascertain the extent, because upon that depends, whether the common law is exercisable.’ Of the correctness of that position, no judicial or professional doubt has reached us, until that expressed on the circuit in Purcel v. McCallum (ante, 221), which was before this Court at the last term, and struck us with surprise at the time. The policy of the act requires its application to all injuries of whatever character arising from the erection of a mill; for the statute may otherwise be rendered, in a great degree, nugatory.”
The statute then provided that the remedy it prescribed should be the only one in certain circumstances, and the common law remedy was not thereby wholly excluded, but our present act makes no such restriction as was contained in the Mill Act. It allows compensation and provides for an adequate remedy by petition and assessment of the damages under it, and this Court has always held the remedy to be exclusive of all others, except more recently in railroad cases, where a special provision is made by statute for assessing damages, and conferring the easement. Revisal, sec. 394.
At least that has been the construction of the statute. But it does not (except as to railroad companies and telegraph companies (sectionl576), which have the same rights as railroad companies) change the general law. There is no analogy between the two classes of cases, as there is no such statute in the case of cities and towns, or public service corporations, other than railroad companies, and they must, of course, be governed by the law as it stood when McIntyre’s case was decided.
This Court cannot change the statute, though it may construe it, but this does not mean that it can construe it away. It may be further said that the new doctrine is wholly based upon decisions in railroad cases, such as Ridley v. R. R., 118 N. C., 996; Porter v. R. R., 148 N. C., 563, and the other cases cited in the Court’s opinion, and Phillips v. R. R., 130 N. C., 582, is upon the same ground, telegraph companies, as we have shown having the same rights in respect to condemnation as railroad companies.
There was no plea to the jurisdiction, nor • objection in any form taken thereto, in the cases cited by the Court in its opinion, and no discussion of the present question. Harper v. Lenoir, 152 N. C., 723, was not a case of condemnation, but an action to recover damages for the negligent improvement of a street. Rhodes v. Durham, 165 N. C., 679, was an action for negligently or improperly emptying sewage into a stream which polluted the water, and fouled the air, and incidentally damaged adjoining and adjacent lands, as was held. There were two dissents, by the Chief Justice and Justice Brown, the latter writing the opinion. The result there was reached because it was held that the plaintiff, an adjacent owner, could sue at common law and recover his damages for the nuisance, which did him special injury, and to the extent that this was done, but the case is not an authority on the question as to how a landowner must proceed, under the statute, to recover his compensation.
Tbe Court in McIntyre’s case made no distinction as to tbe nature of tbe board’s functions, but held that where a special remedy (before a board) is given, it must be pursued. If tbe plaintiff regularly applied to tbe board for an assessment of her damages, and her application was refused, her remedy, as in all other like cases, was an appeal from tbe action of tbe board, which would certainly have been reversed, and not tbe bringing of a common-law action in violation of tbe principle laid down in McIntyre’s case and approved in a long line of cases since it was decided. Sometimes an enforcement of tbe law, and even tbe statute law, will work hardships, but we have been warned repeatedly against allowing them to influence our decisions. They have been called tbe “teacherous quicksands of tbe law,” and to be avoided, as a basis for declaring tbe law. It is not infrequently tbe case that a party loses bis right by not being diligent in its enforcement, but that is not tbe fault of tbe law.
So far I have assumed, for tbe sake of discussion, that this is a question of jurisdiction, but it is not, and tbe argument based upon that assumption fails, as tbe premise is wrong. It is not a question of juris-' diction, but a general principle of tbe law, not repealed by any statute, with a particular remedy for its enforcement; tbe latter is only tbe remedy, and tbe right must accordingly be enforced by it alone.
I think tbe McIntyre case can easily be reconciled with some and distinguished from others of tbe cases cited by tbe Court. I am constrained to dissent, believing that tbe rule stated in tbe opinion will, in many cases, amount to a repeal of tbe statute by tbe rejection of tbe safe and
He then inquires as to what would be the reason or policy of giving the landowner the remedy provided by the statute unless it was intended or supposed that he would thereby lose the one already possessed, for, while more drastic and potent, it was not in accordance with a sound public policy in favor of public improvement, which the act was intended to enforce. It does no wrong to the land-owner, as he has a full and sufficient remedy for the recovery of his damages, and two chances, one to have an assessment by a jury of view, with whose verdict he may be well satisfied, and if not so satisfied, then another by appeal to the court, where he can have a new assessment by a jury in the box. S. v. Jones, 139 N. C., 613.
The policy of the statute is evident, and is fair to both parties. We-have held in Ridley v. R. R., 118 N. C., 996, and subsequent cases that it does not apply to railroad companies by reason of the later statute, and that is as far as we should go, without being in danger of interfering with the free operation of a legislative enactment.
I see nothing in the act unjust to the owner. It provides for the condemnation of the land in the usual and ordinary way, and after the improvement is ordered to be made, it allows the owner 60 days within which to ask for an assessment of the damages by “a jury of three disinterested freeholders,” who are not appointed by the county commissioners, as claimed, but summoned by the sheriff, constable or other officer, as provided by law, and. two days notice of the place and time appointed for making the appraisement must be given to the land-owner, so that he may be present, if he desires, and protect his interests, and then follows a provision for a review, by appeal, of the jury’s report, if the owner is not satisfied with it. The commissioners, therefore, have no interest in the matter. I do not see why so simple a remedy cannot be prosecuted within sixty days. The landowner, therefore, has all the advantages of a civil action and more. There would not be as much delay by appeal, for he could bring his case to an issue in
It is said in the opinion of the Court that plaintiff is asked to begin over again and that she should not be required to do so, because her time for filing a petition before the hoard has expired. This reasoning would apply to every case where a plaintiff has failed- to pursue the right course or to bring his suit in time — that is the time fixed by the Legislature, which unquestionably has the power to fix it. And the further inquiry is, To what purpose, or in what way, should she be required to proceed otherwise than by civil action for damages? The simple answer is, because the Legislature, having the power to do so, has so declared in plain and mandatory language. The Durham statute allows 60 days (instead of 20) to file a petition, and affords a simple remedy for setting apart the quantity of land required and for assessing the damages. The time is reasonable, and there is no hardship in requiring the owner to pursue so simple and adequate a remedy.
But it is said that the letter was equivalent of a petition. It shows, on its face, that it was not so intended by its author, hut was merely an offer to settle the damages by an arbitration outside, instead of by formal proceedings in the court. It did not ask. for the appointment of commissioners or under the statute, but suggested only a private settlement by arbitration for any relief that would liken the case to a proceeding, and it is as wide a departure from the method prescribed by the law as it could possibly be. And all this appears not from construing the statute rigidly, but reasonably, and giving the natural and manifest meaning to its language.
The nature and location of the property taken, whether at one place or another, cannot alter the law, which is unchangeably the same in its application to all kinds of property that is subject to condemnation. It is calling the result (which was produced by plaintiff’s inaction) by the wrong name, to say it works a hardship, for, in a legal sense, there can he no such thing if the law justifies what is done. To call it a hardship is merely another way of saying that the statute is wrong in principle, but this can hardly he maintained, as it affords an easy and perfectly adequate remedy.
The cases cited, when properly considered and applied, are not at all in conflict with McIntyre’s case, which should he allowed to stand, as it has stood unchallenged for nearly a half-century. "We are not the judges of its policy, even if, in principle, it may be wrong and bear harshly in some instances.
