Louisville & Nashville Railroad v. Nichols

Hoke, J. Under our statutes and decisions construing the same, a counterclaim is not permissible for a distinct and independent tort, and applying the principle, in an action to recover a tract of land alleged to belong to plaintiff, a counterclaim for a trespass by plaintiff on a different tract of land belonging to defendant is not maintainable. Street v. Andrews, 115 N. C., 417, 422; Bazemore v. Bridgers, 105 N. C., 191; C. S., 521, 522. While this is the accepted principle, it is not a jurisdictional question, and the approved decisions on the subject are to the effect that the objection may be waived and will be considered as waived unless specifically raised in the pleadings or insisted on when the evidence is offered in support of the counterclaim, and more especially is this true where the cases have been “tried throughout on the theory that it is a proper counterclaim.” Richardson v. Anderson, 109 Md., 641; Stensguard v. Real Estate Co., 50 Minn., 429; 2 R. C. L., 877, 878; 34 Cyc., 649, 650; Brown v. Chemical Co., 165 N. C., 421. True, in the present case, there was motion to nonsuit, but this, termed under our statute a demurrer to the evidence, was evidently made on the general ground that defendant’s evidence was insufficient to support his counterclaim, and a perusal of the record will show that the case throughout was.dealt with as if the counterclaim was one prop.erly to be considered, and issue was joined and the case tried on that theory. In that aspect we find no error in the record that will justify the Court in disturbing the result. Our statute, C. S., 440, subsec. 2, as a statute of limitations on claims of this character, fixes the period of five years for trespasses arising from the permanent structures or proper repairs of a railroad, the statute commencing to run from the time when the structure causes substantial injury to claimant’s property. Campbell v. R. R., 159 N. C., 586. And this statute contains provision also that the jury shall assess the entire amount of damages a party aggrieved shall be entitled to recover by reason of such a trespass. In construing this statute we have held that the grantee in fee of the property may maintain this action for the entire damage unless a former owner had instituted action *156 tberefor before the sale and conveyance. Caveness v. R. R., 172 N. C., 305. In that case the positions pertinent are given as follows: “The act of a railroad in entering upon and constructing and operating its railroad over a street abutting the lands of another, without having resorted to condemnation proceedings or having otherwise acquired the right, is a continuing trespass upon the lands of the abutting owner, and the right to recover permanent damages therefor will pass to the grantee of the owner, when no other provision has been made in the deed, unless the grantor has theretofore instituted his action to recover them. “’Where a railroad company, without authority, enters upon a street abutting the lands of private owners and constructs and operates its railroad thereon, the owner, by instituting his action to recover damages, confers the right to the easement to the railroad company, upon payment and tender, etc., by the company of the amount awarded by the appraisers; and where no action has been instituted, and the lands have been conveyed after their appropriation and use by the company, the right to recover permanent damages therefor inures to him who first institutes his action pending his ownership, unless there is a different provision in the conveyance.” On perusal of the record it appears that defendant, who sets up the counterclaim, was, at the time of action commenced and counterclaim made, and is now, the owner of the property. The pleadings are broad enough to present a claim for the permanent damages and the evidence, if accepted, sufficient to maintain it; and, as stated, the exceptions fail to disclose that any reversible error has been committed. The exception to a clause of his Honor’s charge on the question of damages cannot be sustained. The instruction is correct as far as it goes, and the entire charge not being sent up, the Court will presume that such charge has dealt adequately with the questions, the burden being on the appellant to establish substantial error. Quelch v. Futch, 172 N. C., 316; Baggett v. Lanier, 178 N. C., 129; Pemington v. Tarboro, 184 N. C., 71. On careful consideration of the case as now presented the Court is of opinion that the judgment should be affirmed, and it is so ordered. No error.