Beasley v. Aberdeen & Rockfish Railroad

Hoke, J., after stating the facts: Where a railroad corporation has entered on the land of another and constructed its road and is operating same, and, having the power of eminent domain, has not exceeded the ultimate rights of appropriation contained in the power nor violated the restrictions imposed upon it by its charter or the general law, such company cannot be ousted from the land by action of ejectment in *365 stituted by tbe owner nor subjected to successive and repeated actions of trespass by reason of tbe user and occupation of tbe property. If tbe damages sought would necessarily be included in an assessment in condemnation proceedings regularly bad, tbe. owner must pursue tbe statutory method of redress provided either by tbe charter or under tbe general law, if such method is open to him as well as tbe company. This has' been uniformly held with us. McIntire v. Railroad, 67 N. C., 278; Railroad v. Ely, 95 N. C., 77; Dargan v. Railroad, 131 N. C., 623. And if tbe injuries complained of amount to an invasion of tbe proprietary rights of tbe owner not covered by such assessment, the wrong must under tbe present law be redressed by tbe .award of permanent damages. Stack v. Railroad Co., 139 N. C., 366; Lassiter v. Railroad Co., 126 N. C., 509; Beach v. Railroad Co., 120 N. C., 502. This, we think, is tbe correct interpretation.of tbe statute on tbe subject enacted in 1895, chapter 224, and brought forward in tbe Revisal, sec. 394, as follows: “2. No suit, action or proceeding shall be brought or maintained against any railroad company by any person for damages caused by tbe construction of said road, or tbe repairs thereto, unless such suit, action or proceeding shall be commenced within five years after tbe cause of action accrues, and tbe jury shall assess tbe entire amount of damages which tbe party aggrieved is entitled to recover by reason of tbe trespass on his property.” Prior to tbe enactment of this statute, when an injury was caused by a structure permanent in its character, erected and maintained in tbe exercise and furtherance of its chartered rights and duties by a quasi public corporation having tbe power of eminent domain, in an action to recover for such injury an award of permanent damages could be required at the instance of either party to the controversy. Parker v. Railroad, 119 N. C., 677; Ridley v. Railroad, 118 N. C., 996. And in the case of railroads the statute referred to has made this course compulsory. Cherry v. Canal Co., *366 140 N. C., 422. The court, therefore, very properly framed and submitted .an issue addressed to the question of permanent damages. While the privilege and duty of suggesting such issues as they consider relevant and necessary may in the first instance rest with the parties litigant, it is the duty of the court always to see that the proper issues material and determinative of the question involved in the litigation are submitted and responded to by the jury. Strauss v. Wilmington, 129 N. C., 99. And this issue as to' permanent damages being the one required by the statute as determinative, the issue tendered by plaintiff was properly rejected and that for permanent damages substituted. These damages, then, having been ascertained 'and established, judgment should have been entered in plaintiff’s favor for the whole amount of the recovery on both issues. Eor, while as a rule the term “permanent damages” signifies the entire injury done to the property and would ordinarily include damages'for such wrong, past, present and prospective, if it appears that in ascertaining the amount these items have as a matter of fact been divided and determined on separate issues, as in this instance, the verdict will not on that account be disturbed, but judgment entered for the whole sum. Ridley v. Railroad, 124 N. C., 37. ■ Eor the purpose of this action a judgment may be properly defined as the conclusion of the law on the facts regularly and properly established in the course of a judicial proceeding. And, these facts having been established by the verdict, the judgment should be entered on the facts as found, for we do not understand or interpret the statement in the judgment, “That plaintiff did not ask for judgment on the issue as to permanent .damages,” to mean that plaintiff intended to enter a retraxit as to such amount, but simply that he desired to test his right to maintain successive actions for his alleged grievance. In permitting a recovery on this judgment we must not be understood as holding that in a claim for dam *367 ages, which, would be certainly and necessarily included in an award in condemnation proceedings, .any other than the statutory method of redress is open to the proprietor. Eor, as stated, our authorities are clearly to the contrary. But in the present instance, as the question was not raised by defendant and it does not of a certainty appear but that other elements of damage may have been considered, we have determined to allow and direct that judgment be entered for plaintiff for the entire amount of his recovery on both issues, and it is so ordered. Let this be certified, that judgment be entered on the verdict in plaintiff’s favor for $5(L The costs of the appeal will be taxed against the appellant. Modified and Affirmed.