Hildebrand v. Southern Bell Telephone & Telegraph Co.

BahNHIix, J. The judgment roll in the original condemnation proceedings in which a decree was entered condemning a right of way over and across plaintiff’s lands for use as a public highway was excluded in *13 tbe original trial of tbis cause. Tbe error in so doing was assigned as one of tbe reasons for remanding tbe case for a new trial. In tbe trial below tbis judgment roll was admitted and tbe decree therein is now before us for consideration. Tbe jury by its verdict bas found tbe essential facts in respect thereto. Tbis decree bas the force and effect of a deed. Buchanan v. Hedden, 169 N. C., 222, 85 S. E., 417; Finch v. Finch, 131 N. C., 271. Was tbe extent of tbe easement conveyed by said decree such as to include tbe right on tbe part of tbe Highway Commission to grant tbe defendant tbe permissive use of tbe right of way for tbe purpose for which it is now being used by it without additional compensation to the plaintiff, owner of the servient estate ? ■ Tbe answer is decisive of this appeal. The State Highway & Public Works Commission bas been granted exclusive control over tbe State Highway system. Ch. 2, sec. 10 (b), Public Laws 1921, as amended. It bas full authority to make proper and reasonable rules, regulations and ordinances for the placing or erection of telephone, telegraph or other poles within the right of way, and it may, at any time, require the removal of, change in, or relocation of any such poles. Ch. 160, sec. 1, Public Laws 1923. That said Commission may in its discretion authorize tbe use of tbe highway right of way by telephone and telegraph companies is not seriously debated. This authority, however, is subject to the right of the owner of the servient estate to payment for the additional burden. Hildebrand v. Telegraph Co., 219 N. C., 402, 14 S. E., 252. The decree in tbe original condemnation proceedings established and granted a right of way for use for highway purposes. Tbis, however, is not tbe extent of the judgment. It grants a right of way to the Highway & Public Works Commission, its successors and assigns. It is for all purposes for which the State Highway & Public Works Commission is authorized by law to subject said right of way. Tbis includes tbe privilege granted defendant. The condemnation decree is conclusive and binding upon the parties to that action. The defendant, as “assignee” of tbe Highway Commission, by virtue of its privity, may assert the authority of the Highway Commission thereunder to permit it to encroach upon the highway without any payment of any additional sum to plaintiff. Power Co. v. Power Co., 188 N. C., 128, 123 S. E., 310; Garrett v. Kendrick, 201 N. C., 388, 160 S. E., 349; Southerland v. R. R., 148 N. C., 442, 62 S. E., 517; Buchanan v. Hedden, supra; Coltrane v. Laughlin, 157 N. C., 282, 72 S. E., 961; Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535; Weeks v. McPhail, 128 N. C., 130; 2 Black on Judgments, sec. 549; 2 Freeman on Judgments (5d), secs. 831-833. *14 Having the authority under the law to grant the permissive use of the highway right of way to telephone and telegraph companies, the State Highway & Public Works Commission executed its agreement granting this right to the defendant. The defendant is now exercising that privilege subject to the limitations and restrictions provided by law and incorporated in the agreement. The plaintiff has been compensated for this additional burden. She may not again recover. The conclusion here reached is not in conflict with our opinion on the former appeal in this cause. We still adhere to the rationale of that decision. It is based upon the broad language of the judgment in the condemnation proceedings and the rights thereby acquired by the State Highway & Public Works Commission. The defendant was entitled to judgment upon its motion to dismiss as of nonsuit. Reversed.