R. R. v. . Ferguson , 169 N.C. 70 ( 1915 )

This is an appeal from an order of the clerk approving the assessment of damages by the commissioners condemning the right of way for the plaintiff under its charter, Private Laws 1905, ch. 411.

Revisal, 2587, provides: "If the said company at the time of the appraisement shall pay into court the sum appraised by the commissioners, then and in that event the said company may enter, take possession, and hold said lands, notwithstanding the pendency of the appeal, and until the final judgment rendered on said appeal." The charter of the plaintiff, Private Laws 1905, ch. 411, is practically to the same effect as the provision in Revisal, 2567 (4), which provides that the railroad company may lay out its road not exceeding 100 feet in width and construct the road, making compensation therefor as provided by that chapter for lands taken for the use of the company.

Chapter 11, Private Laws 1913, amends this provision of the charter (sec. 4, ch. 411, Pr. Laws 1905) by adding at the end thereof: "after the amount of such compensation shall have been determined by a proceeding instituted either by said railroad company or by the owner of the lands through which the line of said railroad may run; and said railroad company shall not be required to institute proceedings (71) for the condemnation of lands prior to the time of entering upon the lands of any person for the purpose of constructing its line of railroad." The plaintiff entered upon the right of way, constructed its road, and is now operating traffic over the same. The defendant relies upon Revisal, 2566, which provides that that chapter (ch. 61) "shall govern and control, anything in any special act of the Assembly creating a railroad corporation to the contrary, notwithstanding, unless in the act of the General Assembly the section or sections of this chapter intended to be repealed shall be especially referred to by number and, as such, shall be repealed." This reference was not made in chapter 11, Private Laws 1913, and on motion of the defendant the court dismissed the plaintiff's appeal upon the ground that, not having paid into court the $800 assessed for damages, the plaintiff could not prosecute its appeal.

It is true that Revisal, 2566, was held valid in R. R. v. R. R.,106 N.C. 16, and Liverman v. R. R., 109 N.C. 52, but said section 2566 of the Revisal is like any other act of the Legislature and is subject to any subsequent legislation, and is only useful in constructing the meaning of subsequent legislation when it is doubtful. But it cannot have the effect to prevent antagonistic legislation at a subsequent date.

The amendatory act, chapter 11, Private Laws 1913, authorizes the plaintiff company to enter "upon the lands of any person for the purpose of constructing its line of railroad" without prior thereto instituting proceedings for condemnation. The power of the Legislature to authorize the taking of property under the right of eminent domain without requiring the precedent payment therefor is discussed and decided in S. v. Lyle,100 N.C. 497, and has been approved since. See citations in Anno. Ed. It is there held that compensation must be provided for to warrant the taking, but that it need not precede the taking, and that "the owner is confined to the special remedy given him by the statute under which his property is seized."

In S. v. Wells, 142 N.C. 593; Street R. R. v. R. R., ib., 438; S. v.Mallard, 143 N.C. 666, the Court held that under the general statute a railroad company had no right to begin the construction of its road until the payment into court of the damages assessed, and that its only right prior to payment thereof into court was to enter on the right of way merely for the purpose of surveying and laying it off, so that the commissioners might assess damages. But, as we have seen, under the amendment to the charter of the plaintiff company by chapter 11, Laws 1913, the plaintiff could construct its railroad before complying with this requirement. This does not deprive the defendant of proceeding to collect the compensation assessed on the final trial, for until payment therefor the title to the easement in her hands does not pass to the plaintiff company.

Reversed.

Cited: S. v. Jones, 170 N.C. 754; Power Co. v. Power Co., 171 N.C. 256;Power Co. v. Power Co., 188 N.C. 131; Lumber Co. v. Graham County,214 N.C. 173.

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