Caveness v. Charlotte, Raleigh & Southern Railroad

HoKE, J. It is objected for defendant that as no part of plaintiff’s lot was taken by the railroad company, he is not entitled to recover damages for any impairment of value caused by the operation of defendant’s trains; but the authorities are to the effect that the construction and operation of a steam railroad on a street is an additional burden not contemplated or included in the original dedication for street purposes, and that the same constitutes a physical interference with the proper enjoyment of his easement on the -street by an abutting owner which amounts to a “taking,” as the term is used and understood in applying the principles of eminent domain, and, this being true, such owner may recover for the injury to the extent that the value of his property is impaired by the obstruction or hindrance to his easement and by the annoyances and inconveniences usually allowed for in condemnation proceedings. Kirkpatrick v. Piedmont Trac. Co., 170 N. C., 477; R. R. v. Mfg. Co., 169 N. C., 156; R. R. v. Armfield, 167 N. C., 464; R. R. v. McLean, 158 N. C., 498; Staton v. R. R., 147 N. C., 442. In Thomason v. R. R., 142 N. C., pp. 300-318, to which we were cited on the argument, the question chiefly presented was the right of an owner of real property abutting on a railroad right of way to recover of the company by reason of the manner its trains were being operated and its traffic business conducted on said right of way, and the Court held that, to the extent that the trains, etc., were being properly operated under its charter, no action would lie, and this notwithstanding the large increase in the company’s trackage and volume of business required in the legitimate discharge of its duty to the public; that it was only when, under the claim of its charter privileges, the company was so conducting its business as to create unnecessarily a nuisance, causing damage to the property, that an owner adjoining the right of way could sue, under the principles applied in R. R. v. Baptist Church, 108 U. S., 317, and other like decisions. Thomasons case, therefore, is not directly apposite to the questions arising on this appeal — the *308 right and., quantum of recovery by an owner whose property has been “taken” in the acquirement of the right of way. Again, it is contended that the judgment cannot be sustained because it appears that, pending the action, plaintiff conveyed the title to another, and that the right of recovery follows as an incident to the title. On this question our statute provides (Revisal, sec. 394, subsec. 2) that no action- shall be maintained against a railroad company for damages caused by the construction of its roads, or repairs thereto, but within five years from the time the cause of action accrues, “and the jury shall assess the entire amount of damages which the party aggrieved is entitled to recover by reason of the trespass upon his property.” In case of railroads this provision requiring an award of the entire damage in a single action prevailed in this State at the election of the parties prior to the enactment of the statute {Ridley v. R. R., 118 N. C.), and, where such a position is recognized elsewhere, the cases very generally hold that one who owns the land at the time the railroad enters and constructs its road thereon may recover for the entire damage. These decisions proceed upon the theory that such an act on the part of the company will constitute a completed trespass, and that subsequent owners have no interest in a recovery based upon it. Roberts v. Northern Pacific R. R., 158 U. S., 1; McFadden v. Johnston, 72 Pa. St., 681; Central R. R. v. Hetfield, 29 N. J. L., 206; King v. So. Ry., 119 Fed., 1017; Walton v. R. R., 70 Wis., 414; 10 R. C. L., 215, title, “Em. Domain,” sec. 184; 2 Elliott on Railroads (2 Ed.), sec. 1000; 2 Lewis Eminent Domain (3 Ed.), p. 1647. The decisions on the subject in North Carolina, however, are to the effect that, unless an action for permanent damages or condemnation proceedings have been instituted by the original owner pending his ownership, the.right to recover will pass to the grantee. Our cases proceed upon the theory that the act of the railroad in entering upon the land and constructing its road, without resort to- condemnation proceedings provided for by the statute, amounts to a continuing trespass, and- the right to recover compensation for the easement arises to him who owns the property when the road enters and remains thereon as of right, that is, when the company acquires the right to enter and remain, to be perfected on the payment of damages. Thus, in Phillips v. Tel. Co., 130 N. C., pp. 513-526, the telegraph company had placed its poles on a railroad right of way, amounting, with us, to an additional burden which entitled the owner of the property to compensation. The original owner, without having sued or instituted condemnation proceedings, conveyed the property, and it was held that the grantee could recover *309 permanent damages in compensation for the easement, the principle being stated in the ninth headnote as follows: “A purchaser of land subsequent to the taking and erection thereon of a telegraph line may recover permanent damages for the easement taken, and the telegraph company thereby acquires the easement and the right to maintain its line thereon”; and Douglas, J., in the opinion, speaking to the question, said: “A subsequent purchaser cannot recover for a completed act of injury to the land, as, for instance, the unlawful cutting down of trees; but if the trespasser unlawfully remains upon the land after the sale, or returns and carries' away the trees, he becomes liable to the then owner, in the first case as for a continuing trespass, and in the latter for a fresh injury. If, in addition to this, the trespasser seeks to acquire the right to remain, he can do so only by the consent of the owner or under the principle of eminent domain. This is not the perpetration of a wrong, but the lawful acquisition of a right, and the damages incident thereto must be paid to the owner from whom the right is acquired. Aside from this action, the defendant has acquired no easement whatever as against the plaintiff, and if it takes that easement now, it must pay the man from whom it takes it. To' say that one may acquire an easement in the land simply by an unlawful entry is an attempted extension of the doctrine of squatter sovereignty to an extreme which we feel entirely unable to concede. Liverman v. R. R., 109 N. C., 52; s. c., 114 N. C., 692.” The same principle was recognized and applied with us in condemnation proceedings in Beal v. R. R., 136 N. C., 298; Liverman v. R. R., 109 N. C., 52; same case, 114 N. C., 695; and this view seems to find support in 2 Lewis Em. Domain, sec. 895. Under our statute and in condemnation proceedings, Eevisal, sec. 2587,. the railroad acquires the right to remain upon the land, construct and operate its road on the payment into court of the amount assessed by the appraisers, and the recovery should inure to the one who owns the property at that time. True, provision is made for appeal by either party, and the damages may thereafter be increased or lowered, and the right may be lost by failure to pay the amount ultimately awarded;. but the right to enter and construct and operate its road is acquired when the company pays the amount assessed by the first appraisers, and the owner at that time is entitled to the compensation for the easement. In that case, however, if the owner at the time of entry shall have instituted condemnation proceedings, the statute, sec. 2594, expressly provides “That no change of ownership, by voluntary conveyance or transfer of real estate or any interest therein or of the subject-matter of the appraisal, shall in any manner affect such proceedings, but the *310 same may be carried on and perfected as if no such, conveyance or transfer bad been made or attempted to be made. Tbe proceedings by tbis section are constituted a Us pendens, and, although tbe grantee, as stated, prior to payment of tbe amount may be entitled to tbis compensation, if proceedings bave been instituted, be must assert bis right by action or appropriate proceedings in tbe cause. Abernethy v. R. R., 159 N. C., 340. And so, under our decisions, in case of suit tbe railroad company acquires tbe right to remain and construct its roád when tbe owner enters suit for permanent damages for trespass. He thereby assents to tbe company’s right to occupy and build its road upon the land upon tbe payment of tbe amount due, and tbe entire compensation for tbe easement should inure to tbe owner, who recognizes tbe railroad’s right by entering tbis character of suit. Liverman v. R. R. 114 N. C., at p. 697; White v. R. R., 113 N. C., at p. 622; Staton v. R. R., 147 N. C., at p. 443. Under any view of tbe matter, therefore, tbe present recovery must be sustained, it appearing from tbe record that plaintiff owned tbe land when tbe railroad entered and constructed its road, and pending bis ownership and before conveyance be entered suit and filed bis complaint for permanent damages. There is’no error, and tbe judgment entered must be sustained. No error.