41 S.E. 1022 | N.C. | 1902
MONTGOMERY, J., dissenting. The sole purpose of this action is to recover compensation for the appropriation of the plaintiff's property by the defendant under the color of eminent domain. The plaintiff does not seek to eject the defendant, nor to interfere in the slightest *357 degree with the fullest enjoyment of the easement it claims. He does not threaten or intend to annoy the defendant by a multiplicity of suits, but, on the contrary, he asks the Court, in the exercise of its equitable jurisdiction, to award him such permanent damages as will compensate him for the appropriation of the easement. This being done, the defendant ceases to be a trespasser, and will thereafter remain in the lawful enjoyment of the easement thus acquired. There is, therefore, no question as to whether the defendant shall have the easement, but simply whether he shall pay for it. There is no pretense that the plaintiff, or any former owner of the land, has received any compensation whatever, or that any agreement, or attempt to agree, with such owner was ever made by the defendant, as required by sections 1943 and 2010 of The Code.
It is so well settled that private property can not be taken directly or indirectly, even for a public purpose, without just compensation, that it seems a work of supererogation even to restate the principle. R. R. v.Davis,
In Johnston v. Rankin, supra, this Court says, on page 555: "Notwithstanding there is no clause in the Constitution of North Carolina which expressly prohibits private property from being taken for public use without compensation, and although the clause to that effect in the Constitution of the United States applies only to acts (521) by the United States, and not to the government of the State, yet the principle is so grounded in natural equity that it has never been denied to be a part of the law of North Carolina."
The learned judge who wrote that opinion was correct in saying that the Fifth Amendment to the Constitution of the United States, to which he evidently referred, was a restriction only upon the power of the United States, and not that of the States; but he overlooked the Fourteenth Amendment, then of recent adoption, under which it has been expressly held that a State can not appropriate private property to public use without compensation. R. R. v. Chicago,
(522) Again, the Court says, on page 234: "But a State may not, by any of its agencies, disregard the prohibition of the Fourteenth Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form. This Court, recurring to the Fourteenth Amendment, has said: `Can a State make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is affected under the forms of State legislation.'" Citing Davidson v. New Orleans,
It is well settled that the denial of an adequate remedy for enforcing the right is the denial of the right itself, and the adequacy of the remedy must be determined by its practical results.
In Henderson v. Mayor,
In Simon v. Craft,
These Federal citations become the more important in view of the defendant's claim to its right of way by virtue of its acceptance of the provisions of an act of Congress entitled, "An act to aid in the construction of telegraphs and secure to the Government the use (523) of the same for postal, military and other purposes," approved 24 July, 1866. For this contention it relies on Telegraph Co. v.Telegraph Co.,
So broad a disclaimer should seem to settle the question, and on reason and authority we concur in the effect of the Federal decisions that the act of Congress referred to gives the defendant no right to any part of the land of the plaintiff, or to any use therein. Tel. Co. v. R. R., 6 Bissell, 158; Tel. Co. v. Tel. Co., 9 Bissell, 72.
The defendant again contends that as its poles are located on the right of way of the railroad company, that is, its potential right of way, and as it has acquired its easement from the railroad company by condemnation proceedings under The Code, it owes no further duty to the owner of the land. We can not concur in this view. The land on which the poles are situated is not in the actual (524) possession of the railroad company, and apparently never has been. On the contrary, it has been in constant cultivation by the plaintiff and those under whom he holds. The nature of the easement acquired by railroad companies under condemnation proceedings has been too recently considered by this Court to require further discussion. Shields v. R. R.,
The Maryland case is an able and elaborate discussion of the entire question.
The kindred question, involving the same principle, of railroads upon streets is fully considered in the well-known cases of Story
(525) v. R. R.,
The plaintiff was not a party to the condemnation proceedings, nor have any proceedings been instituted against him by the defendant to acquire an easement or any other right. The defendant relies upon that part of section 2010 of The Code which says: "And if the use or right sought be over or upon an easement or right of way, it shall be sufficient to give jurisdiction if the person or corporation owning the easement or right of way be made a party defendant." Here the defendant stops, but The Code immediately proceeds to say: "Provided, that only the interest of such parties as are brought before the court shall be condemned in any such proceedings." By the very terms of the statute, the plaintiff now stands as if no condemnation proceedings had ever been brought.
Again, the defendant contends that the plaintiff should have proceeded to have his damages assessed under chapter 49 of The Code; but section 2010 gives the right to file a petition in condemnation proceedings to the telegraph company alone, and, with section 2011, specifically provides how the proceedings shall be commenced. Section 2012 evidently refers to the proceedings subsequent to the filing of the petition and the service of the required notices. In other words, it refers to the proceedings after the parties are all before the court. This is so held, and, we think, correctly held, in Tel. Co. v. R. R., supra, wherein the Court says, on page 192: "Inasmuch as section 2010 sets forth all the necessary statements for the petition of the telegraph company, and section 2011 provides for its service, only so much of the (526) railroad law as directs proceedings after the petition is before the court is made applicable to telegraph companies. *361 . . . For the same reason, section 1944 can not be made to apply to telegraph companies."
Again, the defendant contends that, as the plaintiff did not own the land when the poles were planted, he can not recover for the appropriation of the easement. This point was directly decided in Beach v. R. R.,
In the case at bar the sole issue of permanent damages was submitted, without objection, and it is evident the parties intended that the case should so end if the plaintiff could maintain this action.
We see no material error in the admission of evidence.
This case does not come under the act of 1895, ch. 224, which applies exclusively to railroads, but we think that permanent damages can be awarded in this action, and the easement (527) thereby conveyed under the principle enunciated in Ridley v. R.R.,
A parity of reasoning would extend this principle to telegraph companies, as it has already been extended to water companies in Geer v.Water Co.,
(528) The refusal of the court below to set aside the verdict on account of excessive damages can not be reviewed in this Court.Goodson v. Mullen,
In its answer the defendant alleges "that the defendant is an interstate telegraph company, and all its lines in the State of North Carolina are engaged in interstate commerce, by their connection with other lines of said company, extending to and through all of the States of the Union, and the principal towns and cities therein, and cable lines extending across the Atlantic Ocean into the principal cities of all the nations of the earth." We do not know that we fully comprehend the extent of this allegation, but we can perhaps do no better than to quote the words ofJudge Simonton in Tel. Co. v. R. R., supra, on page 192, as follows: "It is true that the purposes of the petitioner are greatly for the public benefit, that it is an important factor in interstate commerce, one of the agencies — and a most valuable agent — in interstate commerce, and that it is of most essential service to the citizen in time of peace and to the Government in time of war. But the underlying proposition in our civilization and in Anglo-Saxon liberty is the protection of the citizen in the safety of his person and in the undisturbed enjoyment of his property. And when he is called upon to surrender that property against his will for a public purpose, he is entitled to all the safeguards which the law has thrown around the exercise of the tremendous, though wholesome, right of eminent domain." In the absence of material error, the judgment is
Affirmed.