101 S.E. 390 | N.C. | 1919
The plaintiff alleges that the defendant erected certain poles on his land, within the right of way of the North Carolina Railroad Company, and strung wires thereon for the purpose of using the same in its business of telegraphy, and the defendant admits the other allegation that the plaintiff is the owner of the land, "subject to the right of way of the said railroad company," it being one hundred feet wide on each side from the center of the railroad track.
The court charged, among other things, as follows:
"The contention of the plaintiff is this: That those under whom he claims, and he himself, were and are the owners (640) of the land in fee; that the railroad company entered upon the land by reason of the grant of a right of way from the grandfather of the plaintiff; that after the railroad company had taken the right of way the Postal Telegraph Company went upon the right of way and put up poles, and thereby imposed an additional burden upon the fee, and that the plaintiff is entitled to recover damages for such additional burden. If you answer the first issues `Yes,' and the second issues `No,' and you find that after the railroad company took possession of the property, the defendant, Postal Telegraph Company, entered upon the property and erected additional poles thereon, and strung wires on the poles, you will then find that the entry of the Postal Telegraph Company imposed upon the fee such additional burden as would entitle the plaintiff to recover, and, in that event, the question would be, What amount is the plaintiff entitled to recover by reason of such wrongful entry on the part of the defendant?"
Under the evidence and charge of the court, the jury returned a verdict for the plaintiff, assessing his damages at three hundred and fifty dollars. Judgment thereon, and appeal by the defendant. after stating the facts as above: The case turns principally on the question of damages, although defendant moved for a nonsuit, which was refused, and, as we think, properly so. There was no dispute as to the defendant's entering upon the land and erecting the poles and stringing the wires, the only issues being as to the ownership, and statute of limitations, and the damages. The first was answered "Yes," and the ownership was admitted for the purpose of the appeal. The statute of limitations does not apply, *688 or more accurately speaking, is not a bar, for the jury found, as is shown by the evidence and the charge of the court, that the defendant entered upon the land in 1915, erected the poles, and strung the wires. The action was commenced on 11 May, 1917.
This Court said in Teeter v. Tel. Co.,
Revisal, sec. 395, subsec. 3, the language being as follows: (641) `Actions shall be brought within three years for trespass on real property. When the trespass is a continuing one, within three years from the original trespass, and not thereafter.' Speaking to this section in Sample v. Lumber Co.,
Referring to the language of subsection 3, above mentioned, and the meaning of it, as suggested in Sample v. Lumber Co., it is further said by Justice Hoke: "The Court is inclined to the opinion that this is a continuing trespass within the meaning of the law, and for damages incident to the original wrong, and for that alone, no recovery could be sustained. But this is a suit for permanent damages, and on recovery and payment, so far as plaintiff is concerned, confers on the defendant the right to maintain its line on plaintiff's land for an indefinite period and to enter on the same whenever reasonably required for the `planting, repairing, and preservation of its poles and other property.' Caviness v. R. R., ante, 305. It is a suit to recover for the value of the easement, which can pass to defendant only by grant or by proceedings to condemn the property pursuant to the statute, Rev. 1572-1573, or by adverse and continuous user for the period of twenty years." *689
The defendant, therefore, is entitled to an easement for an indefinite period of time, and the plaintiff to permanent damages as compensation therefor, which are to be assessed according to the rule stated in theTeeter case. see. also, Hodges v. Tel Co.,
We now come to the real question in the case — the measure of damages. The defendant requested the court to instruct the jury to take into consideration the fact that when these poles were erected and the wires were strung, the land was already subject to the burden of the North Carolina Railroad Company's right of way, and this was given by the court. The court charged (642) the jury, as we have seen, that the defendant, by the erection of its telegraph line, had imposed an additional burden upon the land; in other words, a new one, in addition to that of the railroad right of way, already resting upon it, and that for this additional burden the defendant was under obligations to pay, and the plaintiff had the right to receive, reasonable and just compensation. The principle of R. R. v. McLean,
The amount awarded in the verdict does not appear to be excessive when all the facts are taken into account, and even if so, we cannot review it.Phillips v. Tel. Co.,
We affirm the judgment, finding no material error in the proceedings.
No error.
Cited: Love v. Telegraph Co.,
(643)