*1 577 TERM, N. Q] R. R. Wаshington, Washington, as in International described Shoe Co. v. 310, S. 1057,
U. 90 L. 161 A. R. Ed. which served as the consti- L. imposition involved, were, tutional basis for the of the tax there seems, in no plaintiff substance more extensive than activities in North Carolina.
In Memphis Stone, supra, Natural Gas Co. we have stated case, they appear Supreme facts as in the United States Court Reports. Certainly the business Company Mississippi acts Gas greater in that case are not than plaintiff the business acts of North Company In the Gas Supreme Carolina. case United States Court “Thеre is no question said: here Due Company’s Process. The Gas taxing state where the taxable incidents occurred.” Publishing Company activities the West California, qualified business, it had not to do intrastate set forth West Pub lishing McColgan, Co. v. supra, do seem to be more extensive not than plaintiff the activities of in North Carolina. also See Fontenot v. Hay Company, supra. John I. See also McGee v. International Life Co., U.S. ......, 2 L. Ed. 2d Ins. where the Court held that it for purposes process is sufficient against due that a suit a nonresi process dent served with within the upon forum State is based contract which has substantial connection with that State.
In the collection the income from plaintiff taxes in the instant case, we find no violation of “the due process provision of law” 14th amendment to the Federal Constitution, and of “the law of the provision land” I, Art. Sec. of the North Carolina Constitution. system Under our of government, dual the exercise of the taxing power is equally essential United States and to the constituent States. Under the of this facts case we clearly conclude it is mani- fest that the State of North Carolina has the collect non- discriminatory imposed income on plaintiff, which were taxes taxes imposed solely part plaintiff’s on that net income earned within the State of North Carolina in its interstate business, reasonably at- tributable to interstate business performed done or within the bor- ders of this State. judgment of the trial court is
Affirmed. part took no in the consideration or decision of this case. J.,
RodviaN, BRYANT N. wife, THOMPSON, THOMPSON MAE M. v. SEABOARD AIR LINE RAILROAD COMPANY.
(Filed June, 1958.)
—19 24S IN THE SUPREME COURT.
Thompson R. v. R. Pleadings 22— 1. § pleading any may permit be amended at time The trial court a to modify change provided not or of аction amendment does the cause the opportunity present deprive his defense. G.S. or 1-163. of a fair to 2. 15— Railroads § right company change has A a to the of different railroad elevation convenience, doing right portions in of of to suit and its acts its its liability abutting impose upon it land cannot owners. so to Municipal Corporations 25b—§ 3. public ways delegated to has and when in of the State control been regard 160-222, city municipalities, to G.S. a acts to streets authority raising public granted in convenience under or low- the it ering gradе street, any abutting of a diminution of from the access absque injuria. property is damnum 4. Railroads 15—§ Same: subsequent is fact that a street established across railroad tracks of the railroad to the location character construction does diminish the way, public a of street as after the is established street the impair prevent has no more or its than the railroad other use change grade have to owner would the or interfere with the of the street. use 5. Railroads 15—§ authority given company a is to construct its tracks While railroаd ways, may change grade its tracks not construct or across of 60- street to a useful condition. G.S. tracks unless it restores the 37(6), G.S. 60-43. 6. Eminent Domain 3—§ Same: duty performance company, of a If in its restore a railroad changed has of its condition after it the elevation street useful beyond crossing, required go the railroad tracks at the street of grade change grade change street, and and access of the an such abutting property owner, impairs company the railroad to the street of pay compensation abutting owner for the result- to such must ing land. diminution value Corporations Municipal 15— 25b: Railroads § § 7. changing grade beyond company in of a If street a railroad changing way, to the restoration of street after incident crossing, grade municipality’s at a asserts the of its tracks the elevation grade beyond immunity changing governmental of the street liability plead right way, facts which would it of it must relieve ground. 1-135. G.S. on this Pleadings 22—§ 8. Same: against company by abutting a railroad an was instituted action This compensation for the recover diminution owner to value impairment resulting from access to street incident his beyond right way change grade the rail- TERM, 1958. N.C.] R. R. company. alleged company road Plaintiff the acts charging change grade
were unlawful. SeM: An amendment company was for of the railroad the benefit immaterial rail- when the company allege prove changing road fails to that its acts governmental city, immunity of the street were done under the power during and therefore the court had the to allow the amendment the trial. Corporations Municipal § 25b: Railroads 15— Evidence held in- § sufficient show that of street made under immunity city. company purposes changed Evidence that a railroad own for its grade crossing, duty of its elevation restore tracks to its to to incident required to usefulness as a way, it was *3 grade change municipality beyond right way, of the the street its of and that the merely gave company permission perform the railroad company’s plans specifi- in the work cations, accordance with the railroad is held to disclose that in the was the benefit city city’s of railroad and was not a the function of nor the donе for the benefit, and, therefore, support is insufficient to the defense that the company, changing grade, govern- the was clothed with the immunity city. of mental the dissenting. Higgins, J., McKeithen, J.,
Appeal defendant from S. October 1957 Term of RICHMOND. are the owners of abutting they Plaintiffs on what desig- complaint Bridges nate the Street and Railroad Street. This brought damages action was recover done to property by that clos- ing of changing Bridges Railroad Street and Street. important junction point
Hamlet an for defendant. Its main Wilmington-Charlotte north-south line intersects its linе there. The angles. right right way intersection is at Defendant has 200 feet Prior to interchange width. between the main line and the Wilmington parties line what the wye.” was call “old
Bridges Street runs southwardly through the town and crosses old wye grade. main line at parties stipulated The many “that for years prior Bridges Street was and subsequent has all times thereto been and now is a street in Hamlet. . .” was also stipulated railroad, including wye, old was laid out and in operation Bridges before Street was established.
Plaintiffs are the of two tracts of land fronting Bridges on owners they Streеt. the tract on On the west side buildings. had erected two buildings This and the partly tract erected thereon are within and partly way. outside right defendant’s Plaintiff’s other tract on lies Bridges the east side of Its Street. southern boundary northern IN COURT. THE SUPREME R. R. three-story building right
line A brick is situate way. defendant’s on this tract. wye
In so as it should relocate concluded existing lengthen and'thereby the arc reduce the acute curve accomplish necessary to a fill on de- wye. old To this it was make -way;- wye new fendant’s elevation of the necessitated Bridges The fill also closed what rаising Street 'at the new intersection. answer complaint in their as Railroad Street. The plaintiffs designated use of this area denied there was such street and asserted that the pre- permission Defendant was with the railroad. proposed changes transmitted to pared plans detailed governing request authorities June 1955 with proceed “a of this permit town issue with construction connect- terms herein.” ing Bridges upon across Street. . . outlined track granted work proposed to do the was on 22 June 1955. Penuission plans prepared The work done in accordance with and submitted was point wye to the town. The new crosses the railroad along Bridges wye Bridges is 58 feet north Street from the old Street intersection, feet at the new v*.crossing.Bridges was raised 3.48 Street higher foot the old the new intersection than intersection. ut .6 line is approximately Th'evnorthern of defendant’s wye. new Plaintiffs’ is north of the feet north’ way. was raised at The elevation Street intersection right way line of the 3.69 feet. fill continued northern beyond At point line. 25 feet *4 way a of feet was and made, of fill 2.95 25 feet be- north of рoint a fill of 1.86 feet made. The amount of fill yond that con- .was point a decrease and terminated at 96 'feet north of tinued to way northwardly point feet line, or about 146 from the where right of wye Bridges point Street. The fill new crosses ternainates plaintiffs’ property. of pa'Ved northern corners is near the placed placed it of the street had fill. It curb the area gutter in with the terms of its letter to the and accordance town-re- change. make the permission to questing Complaint read: Sections and defendant, the month of. its “7. Thаt about in, employees, upon entered onto ageiats, servants and and Railroad to the same with dirt extent about filled the three feet Street, end, eight Avenue Hamlet and extent about deep on the fronting Bridges plaintiffs’ property, end laid deep on the Street feet appropriated and the entire street its ex- thereon railroad track using and still is has been same as a railroad track use and clusive completely plaintiffs’ property blocked the entrance to from has and filling -blocking in addition to That and Rail- off Railroad Street. TERM, N. 1958. C.]
Thompson v. R.R. en- employees, road defendant, Street the and agents, its servants depth of tered in upon and its intersection with Street extended wrongfully some intersection, at the feet and defendant North- said fill for along Bridges some.feet towards frontage plaintiff’s east for a practically distance of the entire practically buildings and thereby burying plaintiffs’ brick off cutting by except access the same from said street ladders otherwise.” entry on, upon
“9. That defendant’s its in, and said streets and appropriation aforеsaid, wrong- and use of the same has done as been fully unlawfully and streets plaintiffs’ right violation of to have said open, permission all without plaintiffs, against will, their and left protests, over great hurt, injury damage. their their That of, only aforesaid acts of the defendant complained herein are not wrongful and defendant, unlawful and the use and but for benefit of taking plaintiffs’ amounts to a appurtenances thereto by defendant, thereby practically destroying plaintiffs’ the value of said any compensation compensation without or tender of (Italics added.) plaintiffs in- therefor.” The italicized words were serted amendment after the evidence concluded. had allegations Defendant denied the supple- sections 7 It mented denial alleged facts section 7 “This asserting: says in connection therewith the filling referred to wholly on its own and within property rights, not wrongfully trespassed upon plaintiffs’ has prop- erty rights.” supplemented or their alleged its denial of the facts by asserting: any section 9 “it has not taken the property plaintiffs and has confined its construction efforts within its own in providing facilities for the to cross its tracks.” parties stipulated at trial that the boundaries between the
respective properties as were map indicated on a prepared by court- appointed surveyors, plaintiffs and that were the owners of the lands them so They claimed shown. stipulated: further “The damages sought now in this action are limited to such as flowed from alleged changes defendant’s Street; and no claim plaintiffs any now made damages resulting any from al- leged been have made of other street.” *5 The court submitted issues which were answered jury the follows: defendant,
“1. Did the Seaboard Air Line Railroad Company, raise, raised, cause to be the elevation of Street abutting the plaintiff? of the “Answer: Yes COURT. IN THE SUPREME R.R. result damaged as a
“2. so, plaintiffs If was of said elevation?
“Answer: Yes en- plaintiffs any, if are the so, damages, If what amount
“3. to titled recover? $30,000.00.”
“Answer: af- first issue in the jury to The court instructed the answer plaintiffs in favor of entered on the verdict Judgment firmative. was appealed. and defendant n &Jones appellees. plaintiff, Douglass & McMillan and Jones for de- Henry Hedgepeth
Bynum Bynum McIntyre, & Varser, & and appellant. fendant, assignments brings forward 130 defendant J. While Rodman, question presented involved is three error, think the we basic (1) complaint Permitting amendment to the assignments: these (2) nonsuit; and motion presentation evidence; of the after the (3) jury the first issue to answer the court’s instruction affirmative. time pleading be amended at permit
A court trial changes the of action unless the amendment in effect modifies or cause present and opportunity of a fair to assemble deprives and defendant to the matters asserted in amendment. G.S. his evidence relative 1-163. examine the materiality of the amendment we
To determine to ascertain what issues arise pleadings withоut the amendment pleadings pleadings. If the issues raised the amended assert issues, presenting of action different then the amend- different opportunity material, pre- is entitled to an ment is and offer evidence on the issue so Did the pare its defense raised. defendant,” the use inserted in phrase “and for and benefit of complaint plaintiffs’ anything add to the invasion section 9 originally question asserted? The answer is found rights as propriety the law which determines the motion to nonsuit respect instructions with the first issue. charged complaint act was what defense wrongful What liability The basis of in sec- did defendant assert? asserted found complaint. alleges possession defendant took two tion plaintiffs’ in Hamlet on which and, streets abutted streets, jfiaintiffs denied by fills these access thereto. Defendant (a) questions: The denial raised two allegation. denied this were (b) streets, did defendant make the areas fill? In addition defense it fill as an affirmative asserted on its made *6 TERM, N.C.]
Thompson R. R. right way providing of of facili- the lawful use public ties for the to' cross its tracks. by stipulation eliminated parties
When the casе came to trial the (a) originally plaintiffs’ issues to title for which raised as to the area plaintiffs (b) right recover, sepa- assert a the location of the line rating right way absolutely by plaintiffs, the from the land owned (c) Street, the plaintiff designated Bridges nature of the area which as conceding way public although that it was a established (d) liability the constructed, after railroad was that no existed for designated work done in the area (presumably as Railroad Street for the reason permission public way that it was not a street but used the timе.) of the railroad it terminate which could at stipulation the parties made the touching reduced issues liabili- ty complaint originally the raised as drafted to this fundamental question: change grade Did defendant the the abutting plain- beyond way? tiffs’ outside and right the Viewed the light stipulation, plaintiffs’ of the claim, and charge, the court’s this jury. was the issue submitted to and answered grade Bridges changed fact Street was from a point wye south of the new to a point northwardly and outside of right way plaintiffs’ and across the front is not controverted; nor it controverted wоrk was done contractor secured and paid defendant. Defendant insists these admitted do not liability facts establish (1) right right
because had the to make such fills on way it as appropriate (2) it deemed business; the conduct of its in rights change exercise of its it Bridges could Street with- (3) right way; the bounds of its change in the elevation of right within the change Street necessitated a in the beyond elevation if the deprived was not to be (4) use of right way; it crossed the change town had the benefit or permitted change authorized defendant to grade, permission granted so immunized liability. defendant from analysis position necessary An of defendant’s pass on its as- principles signments Legal pertinent questions of error. raised are, think, well settled. we had a the elevation of portions
Defendant different right way liability of its suit its convenience. No exists for such Brinkley R.R., 654. That changes. 135 N.C. is not here con troverted. streets, public ways (highways, navigable waters)
Control of
sovereign,
State,
subject
is vested in
to constitutional
Legislature
regulate
limitations,
location, width, eleva-
IN THE SUPREME COURT.
v. K. R.
*7
ways. Clayton
tion,
Co.,
563,
and use of these
v. Tobacco
225 N.C.
691;
Co.,
346;
v.
337,
35 S.E. 2d
Co. Lumber
168
84
Guano
N.C.
S.E.
Brown,
175,
40;
Co.,
v.
159 N.C.
75
Butler v Tobacco
152
Dalton
S.E.
12;
407,
City Banks,
Elizabeth
v.
S.E.
416, 68
150 N.C.
64
N.C.
S.E.
Legislature,
in the
of its
189;
Yopp,
S. v.
When
by
street,
and raises or lowers the
of a
Legislature
ed it
abutting property owner is
diminution of access
an
damnum
any
abutting property
prevent
owner can neither
absque injuria. The
damages
injunction
for the
value
change by
nor recover
diminished
conformity
plans
is
de
when the work
done
property,
of his
R.R.,
312,
v.
216 N.C.
public
to
convenience. Sanders
signed
promote
244,
37;
214
902;
Henderson,
199 S.E.
4
2d
Jenkins
S.E.
v.
N.C.
271;
181
Com.,
424,
208
v.
Highway
N.C.
S.E.
Wood
v.
Calhoun
422;
Henderson,
Jones v.
147 N.C.
367,
165
81
Co.,
Land
N.C.
S.E.
392; Wright Wilmington,
v.
N.C.
114 N.C.
92
120;
Greensboro,
v.
Tate
73;
841,
Jur.
Wilmington,
v.
31 N.C.
18 Am.
842.
160; Meares
defendant’s
Bridges Street, where
crossed
The fact
subsequent to the location
construction
established
way, was
public way. The rail-
as a
not diminish its character
the railroad did
or
impair
had no more
to
was established
road, after the street
owner would have
property
other
prevent its use than
city
use
a street
a
with the
constructed
grade or interfere
compensated
Presumably
duly
for the
the railroad was
his
over
land.
established.
rights when the
of its
impairment
356,
N.C.
Thompson R. R. roads, crossing when roads, established to “so construct its works as impede not to the passage transportation persons or or along the provision, same.” This inserted Act 1852 incor- porating the Railroad, Western was codified part as a laws of the State in the Code, provi- Revised c. 30. Similar sec. sions are to be found in the Legislature charters issued during railroads the early part century. of the nineteenth Notwithstanding legislative authority municipal approval for a public corporation service to use highway or if the impose use is such as to an taking additional burden or effect a abutting of an owner, compensation paid. must be accepts Where a railroad statutory benefits of authorization changes of a street highway it must assume and comply with imposed the burden and restore the street to a useful *8 If, condition. to meet the burden so imposed, it necessary becomes go beyond way change grade of a thereby street, impairing access of an abutting property owner, com- pensation paid must be for the diminution resulting in value from the denial of access.
The rule
repeatedly
has been
applied to situations factually simi
lar to this casе.
R.R.,
Powell v.
178
243,
N.C.
424;
100 S.E.
Bennett v.
R.R.,
389,
170
133; Kirkpatrick
N.C.
87 S.E.
v. Traction Co., 170 N.C.
477,
232;
87 S.E.
Brown
Co.,
v. Electric
533;
138 N.C.
Moore v. Power
Co.,
300,
596;
163
79
Clayton
S.E.
N.C.
v.
Co., supra;
Tobacco
Pitts
burgh
Ry.
C.C. & St. L.
Co. Atkinson,
354;
v.
97 N.E.
Zehren v. Mil
Railway
Light
waukee Electric
Co.,
&
41
575;
L.R.A.
Williamette Iron
Oregon Railway
Works v.
Navigation
&
Co.,
88;
29
Baltimore
L.R.A.
Kane,
& O. R. Co. v.
L.R.A.
433;
1916 C
S. B. Penick & Co. v. New
Co.,
1006;
York Cent. R.
111 F 2d
Cincinnati, N.
Ry.
&O.
P.
Co. v.
T.
City
Chattanooga, 64
(Tenn.);
S.W. 2d 196
Chesapeake
Ry.
& O.
Mfg.
Co. v.
Electric
Co.,
Wadsworth
29 S.W. 2d
(Ky.);
650
Shrader v.
Cleveland, C., C. & L.
Co.,
(Ill.);
St.
R.
It is manifest answer to section 7 of the wrongful alleged nothing is more than denial. merely right way that the filling It asserts was confined plaintiffs But not fill. complaining were hence unlawful. beyond way plaintiffs made the was the fill damages. for their for base claim justifi- pleading Appаrently recognized necessity defendant However, merely “has for work it did. said it confined cation providing efforts within own its construction tracks.” It well be doubted to cross its facilities allegation supported by evidence that this is to be whether sufficient acting making the fill outside only agent but of Hamlet. If not in its own behalf town not sufficient, presented certainly the amendment was no issue was immaterial. not, however, to be determined a technical appeal ought therefore, treat, plea We as sufficient. It
question pleading. plead defense. however, constituting facts There enough, is not support plea and when is a confes- plea be evidence to must proof defense burden of and avoidance affirmative sion liability. Logan, supra; who himself from White v. him would relieve 16; Joyce Sell, 2d Clayton, 236 N.C. 72 S.E. 233 N.C. v.Wells 320; 837; Co., v. Ins. 232 N.C. 62 S.E. 2d S.E. 2d Gibson 585, 64 *9 Casualty Co., 305, 742; 49 2d v. 229 N.C. S.E. Williams v. MacClure 728; Casualty v. 516, Co., 193 S.E. Wilson Co., N.C. 210 N.C. Ins. 102; Rumbough Improvement Co., N.C. 585, 188 S.E. governmental immunity adequately Treating plea made, remaining question support is: Was there evidence to only plea? only these, without contradiction establishes and evidence these The facts: wye. wished
(1) for its convenience to relocate its Defendant To conformity with its wishes would necessitate a fill so in on its do way. right of (2) edge The fill would terminate at the in an than three one-half embankment more and feet above the street at point. Such an embankment would at prevent least all vehicular in a Bridges southwardly Street traffic direction. (G.S. (3) wishing to violate (6) Not the statutes 60-43) 60-37 crossing public ways prohibiting railroads from interfering with the TERM, 1958. N. C.] R. R. public way for the a planned streets, use the railroad right to thereby permitting construct, proposеd to
to.mount the embankment it Bridges to use Street. to continue fill outside of a (4) for the construction proposed method called access materially impaired plaintiffs’ way. fill of the This 245 N.C. (a Graham, Hedrick v. taking property. of their 129). 2d 96 S.E. by an offi- (5) to the town prepared were submitted plans so a enclosing herewith reading: “I am letter cial con- proposed shows a print drawing blue of our No. the Main angle of in the northeast nection track be constructed connecting track of this crossing track Hamlet. The construction track, with an additional crossing Bridges Street will involve the Railroad’s unpaved road on the existing of an also relocation gutter constructing new way. plans for concrete curb right of Our satisfactory to Bridges in a manner paving portion this Street a mixture and to relocate surface with City of Hamlet satis- existing unpaved road also in a manner gravel sand factory permit proceed city. you please let me have a to the Will Bridges connecting track across Street with the construction of this town, herein. ...” The unpaved upon the terms outlined and the road 1955, file letter, of June No. replying to this said: “Your letter on the permission to raise Spl., asking the Town’s proposed track crosses Bridges northeast side of Street where gutter you propose to curb and Bridges Street and that construct you will relocate and surface portion Bridges this Street and that satisfactory man- in a gravel a mixture of sand and this with with you proceed city. grant permission This letter will ner to the work as outlined above.” this with
(6) manner and accord The work was done in a careful the town. plans submitted to and not (7) cоntractor was done the railroad The work engineers of the rail- supervised by the The work- was town. road and town. was for in the that the patent It is sought to Manifestly, permission was railroad. benefit of the from prevent the town to complaint and action avoid Defendant was not cloth- Street. with its work proceeding immunity in the work done outside of governmental with ed exceptions respect no error exists way. It follows *10 discussed. assignments find none the other but each of examined We have requires or which discussion. prejudicial is deemed Error.
No IN THE SUPREME COURT. Thompson.
lx be Will J., dissenting. It is conceded!the changes elevating Higgins, defendant’s tracks were made right as a matter of upon the defendant’s property, own isit likewise conceded the work elevating done in Street in the Town of waiswithin the limits Hamlet of the town’s purposes. may compensated We assume the Town street owner of the it acquired lam'dwhen the easement. An easement for purposes contemplates includes to make such n changesin as necessary be to accommodate long travel so as the boundaries of enlargеd. the easement are not Company Railroad exercised conceded to elevate its duty tracks. became the provide the Town and the defendant to crossing. suitable The Town had the to elevate purpose for that right by and it could having exercise the the work employees done its own by letting or the work contract, or authorizing Company the Railroad to do it. paid Whether the Town little, nothing, or Company much to the Railroad to have the work enlarge liability, certainly done does not does not create liаbility previously when none In existed. allegation absence of elevating the work of proof negligently done, there I liability. vote to is no reverse. THOMPSON,
In the matter of JERRY M. Will Deceased. (Filed June, 1958.) Wills 22c— § oper- influence to a will invalid Undue render must be of a kind wliieli very made, ates on the mind of the testator at tbe time the will is causes its execution. 23c— 2. Wills § frequently employed surreptitiously undue influence is Since and is chiefly result, shown wide latitude must be allowed in the in- upon issue, general troduction of evidence and as a rule evi- opportunity disposition dеnce which tends to show an to exert influence, degree susceptibility testator, undue or a result influence, competent pro- indicative of the exercise of undue unless scribed some rule law. 3. Same— Testimony 84-year-old of caveator that when she came see her years prior papier writing, father less than two to his execution of the recognize her, competent did tending he as is held on the issue of undue influence suscepti- to establish the mental condition of testator and his influence, bility capacity. well as the issue of mental