Norfolk Southern Railroad v. Ely

Ashe, J. (after stating the facts). It was very properly held by the Superior Court, that the commissioners to condemn land for the purposes of the plaintiff in obtaining aright of *80 way, be appointed under the charter of the plaintiff company, and not under the general law. It was so held in the case of Norfolk Southern R. R. Co. v. Warren, 92 N. C., 620; Holloway v. University R. R. Co., 85 N. C., 452. The sixth section of the plaintiff’s charter provides, that “if the President and Directors, or their agents, cannot agree with the land-owners, in regard to the value of the land of the latter, through which they propose to run said road, either party may apply to the Probate Judge, (the Clerk), of their county, whose duty it shall be, to order the sheriff to summon five disinterested and intelligent land-owners, to make an award of the damages, if any, which the said land-owners have sustained, and report the same to the said Probate Judge, (Clerk), and this award shall be final, unless one or the other of the parties shall appeal to the Superior Court, within ten days, in which case, the issue shall be tried by a jury of the county in which the land lies.” The award or assessment of damages, as made by the report of the commissioners, is final, unless appealed from by one or the other of the parties. The question of commissioners appointed to condemn land, and assess the value thereof, in analogous cases has been settled by several adjudications of this Court. Skinner v. Nixon, 7 Jones, 342, and in the Raleigh & Gaston Railroad Company v. Jones, 1 Ired., 24, which was a proceeding like this, to condemn the land of the defendants to the use of the plaintiffs. But in that case, there was no appeal given by the charter,'to either party, from the award of the commissioners, and although it was provided, that the report shall be confirmed by the Court, and made of record, and might be disaffirmed, or if the freeholders could not agree, or should fail to make a report in a reasonable time, the Court may supersede them, or any of them, appoint others in their stead, and direct another report to be made, yet the matter in controversy between the parties, the damages sustained by the condemnation, is not one of which jurisdiction is given to the Court. Upon that matter, the law gives the Court no authority to pass; the powers given to the Court *81 amount to no more than the right to appoint the tribunal which shall pass upon the matter in dispute, and in a limited degree, a supervision over that tribunal, in order to quicken its action, or to set it aside, when irregular or wrongful. The report of the commissioners must, indeed, be submitted to the Court, and can not be put on record until it is approved by the Court. But when so recorded, it declares, not the sentence, judgment, or decree of the Court, but merely, the award or inquest of the commissioners.” No appeal having been given to the parties by the charter, it was held by the Court, that, the enactment in our statute regulating appeals, did not apply to such a case; 'for the reason, we take it, that the commissioners, as held in Skinner v. Nixon, 7 Jones, 342, constitute a separate and independent tribunal, and their award is final, unless an appeal is given by the charter. But in the case before us, the right of appeal is expressly given to either party conceiving himself aggrieved by the award of the commissioners, but it further provides, that the appeal must be taken within ten days. Ten days from what time? It must mean ten days from the filing of the report, and not from the confirmation of the report, for the charter does not require the confirmation of the report, but even if that was necessary to constitute a judgment, from which the appeal might be taken, it would seem to follow, that tlie confirmation should be made within the ten days from the filing of the report, that the parties might have the right to take their appeal within the time prescribed, and that after the ten days, the Clerk would have no right to take any action in the matter. But here the appeal is taken after ten days from the filing of the report of the commissioners, and our conclusion is, it was too late, and the motion made by the plaintiffs, in the Superior Court, to dismiss the appeal, should have been allowed. There is error. The judgment of the Superior Court is reversed, and tjpis must be certified to that Court, to the end that the appeal be dismissed. Error. Reversed.