Livermon v. Roanoke & Tar River Railroad

Shepherd, J.: 1. The plea of the statute of limitations cannot be sustained. It is true that the charter of the defendant provides that it shall have “the powers and incidents of the North Carolina Railroad Company and other corporations of like nature created by the laws of the State,” but this language is exceedingly indefinite upon the question under consideration, as the charters of some of these corporations contain provisions barring the owner’s claim for damages or compensation after a certain period, while others provide for no such limitation whatever. Land v. Railroad, 107 N. C., 72. Even had the charter of the North Carolina Railroad Company been particularly referred to, the two years’ bar therein prescribed would not have prevented the application of the general railroad act (ch. 49 of The Code), which was enacted prior to the granting of the defendant’s charter. Under the general act, as construed by this Court in Land v. Railroad, supra, the defendant can only acquire title to the right-of-way by purchase or by proceedings to condemn, and so long as it occupies the land without title, the owner is not barred unless the defendant’s possession has been adverse and for such length of time as to mature title as in ordinary cases. Thus, it appears that there is a very great difference between [55] the charter of the North Carolina Railroad Company and the general act, and it was clearly the policy of the Legislature that the provisions of the latter should not, in any material particular, be repealed by implication. Hence, it was enacted (The Code, § 701) that the general act “should govern and control, anything in the special act of Assembly to the contrary notwithstanding, unless in the act of Assembly creating the corporation the section or sections (of the general act which are intended to be excluded) shall be specially referred to by number, and, as such, specially repealed.” See Railroad v. Railroad, 106 N. C., 16, which is conclusive upon this point. 2. It is insisted, .however, that, as the plaintiff was not the owner of the land at the time of the entry and the completion of the road, she is not entitled to maintain this proceeding. The cases from other States, cited by the defendant’s counsel, sustain this view so far as the recovery of mere damages, incident to the unlawful entry, is concerned. They may, also, be applicable where the railroad company acquires a right by a simple entry, leaving the damages and compensation to be subsequently assessed. In such cases the claim of the owner is said to be personal, and does not pass to a purchaser by an ordinary conveyance of the land. The principle does not apply where, as in our case (under the general act), the railroad company acquires no right whatever until, either at its instance, or that of the owner, proceedings have been instituted to condemn the property. Until this is done, the company occupies the land without title (Land v. R. R., supra), and it would seem quite plain that the occupation of a trespasser ought not to take away the owner’s power of alienation. In our case the only authority to enter was given by the mortgagor, and it is admitted that the consent of the mortgagee has never been obtained. It is well settled that “a deed from a mortgagor conveys only his interest, and is sub [56] ject to the mortgage.” Lewis on Eminent Domain, § 289. To the same effect is Mills on Eminent Domain, § 74, from which work, we extract the following: “ In the case of Wade v. Hennessy, 55 Vt., 207, in which the company, instead of condemning the land by due process, took a deed from the mortgagor, a mortgage having previously been given by the grantor and recorded, it was held that the fact that the railroad company, under the exercise of the right of eminent domain, might have taken the mortgagee’s interest in the mortgaged premises, and thereby have obtained an unimpeachable title, did not vary the relations of the railroad company to the holder of the mortgage, as it did not exercise that right, but contented itself with the right it acquired by said deed. To the proper exercise of the right of eminent domain, it is indispensable that compensation be made to the owner of the property taken by the payment of an equivalent in money. The railroad company must make all parties claiming the title parties to the proceedings. * * * If this is not done, the railroad must either redeem, or seek protection by the exercise of the right of eminent domain under the statute against the mortgagee.” See, also, Wilson v. Railroad, 67 Me., 858; Beck v. Railroad, 65 Miss., 172; 2 Wood Ry. Law, § 244. The mortgagee’s interest, then, not having been affected by the deed of the mortgagor, and the mortgage having been foreclosed, it would seem very clear that the title passed to the plaintiff, who purchased the entire tract under the foreclosure sale. It seems equally clear, that while she cannot recover damages incident to the entry made before she acquired the title, she may recover compensation for the land, the title to which can only vest in the defendant by virtue of this proceeding. The defendant has been content to occupy the land without title, and it was charged with notice of the mortgage. Mills, Eminent Domain, § 103. It did not offer to redeem, [57] as it might have done, but suffered the title to pass to the plaintiff. We are of the opinion that the plaintiff is entitled to compensation for the land, the title to which is to be vested in the defendant by virtue of this proceeding. Error.