Beal v. Railroad Co. ( 1904 )

This is a special proceeding brought by the plaintiff to recover damages to his land over which defendant corporation has located its track. There are a number of questions raised which we do not deem it necessary to consider. The pleadings and verdict of the jury establish the following facts: The road was originally located during 1893 over a tract of land which did not at that time belong to the plaintiff. The claim for damages on account of that entry and location is barred by the statute of limitations and is thus eliminated from the case. The defendant, within two years and prior to the purchase of the land by the plaintiff, relocated its road, changing its line so as to avoid a curve over the land purchased after such relocation by the plaintiff. The jury find that (299) by this entry and location the plaintiff has sustained one hundred and fifty dollars damage. The defendant moved in arrest of judgment, assigning quite a number of grounds therefor. The principal contention is that at the time of the entry and new location the land did not belong to the plaintiff, and that whatever damage was sustained belongs to the plaintiff's grantor; that plaintiff took the land subject to the burden. This Court has decided the question adversely to the defendant's contention. We can add nothing to the discussion of the question by SHEPHERD, J., in Livermon v. R. R., 109 N.C. 52; Phillips v.Telegraph Co., 130 N.C. 513, 89 Am. St., 868. The claim of the plaintiff is not for a trespass, which is personal and does not pass with the title, but for payment of an easement acquired by the defendant by the entry and location of its roadbed. The defendant was entitled by its charter or by section 1946 of The Code to enter upon the land and locate its road. It acquired the easement, either by condemnation proceedings properly conducted, or by paying the value thereof, as assessed in a proceeding brought by the owner of the land. The measure of damages in such case is pointed out in Livermon v. R. R., 114 N.C. 692, and his Honor confined the jury to the rule therein prescribed. The defendant says, however, that the description of the land in the complaint is too indefinite and the extent of the easement to be acquired is not fixed in the judgment. That under section 1946 of The Code it is entitled to have a copy of the judgment recorded in the office of the Register of Deeds in the county wherein the land lies and this record shall constitute its muniment of title. That the judgment rendered in this proceeding neither describes the land or the width of the right of way acquired, nor does it make any reference to the charter or the complaint by which its rights may be fixed. We are of the opinion that the defendant's contention in this (300) respect is well founded. The judgment is framed as in an ordinary action for damages for a trespass and confers upon the defendant no right to any easement. The reason upon which the plaintiff is held to be entitled to recover is that he in this manner receives payment for the permanent burden imposed upon his land, and certainly when he receives the amount awarded him the defendant should have some record evidence of the extent of the right thereby acquired. The complaint should have given a more definite description of the land over which the defendant had located its road. The Court upon motion would have required him to have done so, but the defendant made no such motion. If the plaintiff desired to restrict the width of the right of way he should have alleged that full width which defendant was empowered to take was not necessary for its roadbed, etc., or if defendant did not wish to acquire an easement to the extent of its chartered right and pay therefor, either party may have so stated in the pleadings. In the absence of any such suggestion we must assume that it was intended to vest in the defendant a right of way of the width fixed by the charter. This was conceded on the argument. The judgment should be so drawn as to fix definitely the land over which the road is located, the width of the right of way, either by examining the charter, which for that purpose may be put in evidence, or by referring to it by title, etc. When the judgment is so reformed the plaintiff will be entitled to the amount assessed as compensation for the easement. The other grounds upon which the motion in arrest is made cannot be sustained. Neither party will recover any cost in this Court. The judgment is

Modified and affirmed.

Cited: R. R. v. Olive, 142 N.C. 270.

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