Raleigh, Charlotte & Southern Railroad v. Mecklenburg Manufacturing Co. , 166 N.C. 168 ( 1914 )

This is a proceeding for the condemnation of a right of way 100 feet in width through the mill village of the defendant, near the northeast limits of Charlotte. The defendant owns some 43 tenant houses, rented to its operatives, the rent being payable weekly. It became necessary for the plaintiff, in order to effect an entrance into Charlotte, to acquire a right of way through the defendant's property of some 20 acres. The clerk found as a fact: "It is necessary for the petitioner to have a right of way over the lands described in the petition." This finding of fact was not excepted to by the defendant. Upon the hearing of the appeal in the Superior Court, the judge found as a fact: "It is necessary for the petitioner, in order to construct, maintain, and operate its railroad, that it shall condemn a right of way over said 100-foot strip." The defendant did not except to this finding of fact. So it is settled that the plaintiff is entitled to have this 100-foot strip as a right of way over the lands of the defendant through its mill village, according to the petition and plat.

On the right of way of the plaintiff, as asked for and located, there were situated wholly or partly seven tenant houses, four of which remain untouched and the other three were moved by the plaintiff, (180) at its own expense, to make room for the track, to other locations partly on and partly outside the right of way. All of the seven houses, including the three which were removed and the other four, have been at all times and still are occupied by the tenants of the defendant. The houses have not become the property of the plaintiff, the tenants have the right to live in them, and are still living in them, and can continue to do so until they shall become, if ever, actually needed for railroad purposes. R. R. v. Sturgeon, 120 N.C. 225; R. R. v. Shields,129 N.C. 1.

The defendant contends, however, that its land is not subject to condemnation, because Revisal, 2578, provides: "No such corporation shall be allowed to have condemned to its use without the consent of the owner his dwelling-house, yard, kitchen, garden, or burial ground." This section is an exception to Revisal, 2575, which confers broadly the right of condemnation. His Honor properly held that Revisal, 2578, does not exempt all dwelling-houses, but only the dwelling-house of the owner of the land sought to be condemned, and did not apply to cases like the present, where the tenant houses are merely appurtenances in the operation of the plant.

The exercise of the power of eminent domain is an attribute of sovereignty, under which, upon considerations of the greater benefit to the public, private property is taken for public use. "A dwelling-house is, of itself, no more exempt from condemnation for public uses than any other property." Mills Em. Dom. (1888), sec. 120. The dwelling-house of the owner, his yard, garden, and burial ground are exempt only because the statute so provides. Revisal, 2578, does not purport to exempt all dwelling-houses, or dwelling-houses generally. It expressly limits the exemption to the "owner's dwelling-house." There is no room for construction. No corporation "can have condemned, without the consent of the owner, his dwelling-house." The exemption from the taking of private property for public use upon compensation is not conferred upon the landowner's tenant houses, nor his tenants' dwelling-houses, (181) nor upon defendant's 43 tenant houses occupied by tenants who pay weekly rent, but such exemption is confined to the "owner's dwelling-house." This proceeding is to condemn the land of the defendant. Its tenants, holding by the week, are not parties to this action, and have no interest in the land to prevent its condemnation by the State for a public use.

The evident intent of this legislation was to exempt the family home, rendered sacred by sentiment or the local attachment of the owner. The defendant is a corporation, and has no dwelling-house. These tenements can have no sentimental value to the defendant corporation. It has doubtless a place of business, a principal office, but it does not have a "dwelling-house," a home, nor has it ability to live in 43 dwelling-houses. A corporation can have no property the value of which cannot be measured in money, for it has no sentiment and no affections.

A case almost exactly in point is R. R. v. Mosely, 117 La. 314, in which the Court held that the almost identical wording of Article 2637 in the Civil Code of that State was "intended to be applied in cases where citizens are disturbed in their homes, and not in cases where the property consists of tenements which are rented from month to month to any one who may choose to take them." The present case is really stronger, because here the owner is a corporation who can have no "dwelling-house," while in that case the occupant of the tenant house was an individual, but not the owner of the land sought to be condemned, and he therefore had no property right therein as against the exercise of the power of eminent domain.

"Statutes exempting a dwelling-house and land within 60 feet thereof apply only to land belonging to the owner of the dwelling-house, and in such cases land of another within 60 feet of such dwelling is not exempt."R. R. v. Wicker, 13 Gratt. (Va.), 375. In Lansing v. Caswell, 4 Paige (N. Y.), 522, the Court held that the "garden or yard, or inclosure, does not exempt every yard or inclosure, but only such as are necessary to the use and enjoyment of the dwelling-house, and cites with approval Clark v.Phelps, 4 Cowen, 190.

The Pennsylvania statute is very slightly different from ours, (182) and forbids the taking "without the consent of the owner of his dwelling-house." It was held that this was only another way of saying "the dwelling-house occupied by the owner." Hagner v. R. R.,154 Pa., 475.

The only other exception on this appeal is that the court did not allow interest on the amount of damages from the date of the condemnation of the right of way, but only from the date of the verdict and judgment. In this there was no error. Revisal, 1954, provides that all sums of money due by contract, except on penal bonds, shall bear interest. But judgments in other cases than on contract bear interest only from the date of the judgment. At common law a judgment did not carry interest when an execution was issued upon it. The statute was passed for the purpose of amending the law in this respect. Collais v. McLeod, 30 N.C. 221, cited McNeill v. R.R., 138 N.C. 4. The cause of action here does not arise on contract, but is for damages on account of defendant's land taken under the right of eminent domain. These damages fall directly under Revisal, 1954, and the law gives interest only from the rendition of the judgment.

The defendant did not contend on the trial that it was entitled to interest before judgment, and did not request the court to so instruct the jury. It is true that the jury in awarding damages could in their discretion have given interest as a part of the damages if the circumstances seemed to them to justify it. But the court was not asked so to charge, and here the circumstances would not have justified the allowance of interest. It is found as a fact herein that none of the defendant's seven houses have ever been vacated, but at all times since the condemnation they have been occupied by the tenants of the defendant. There is no evidence that the rent has been reduced or that any tenant has failed to pay his rent promptly. The defendant was not receiving any revenue from the land taken except the rent of the seven houses, which he is still receiving, and has therefore sustained no loss in income. Under the Sturgeon case above cited, this condition will continue indefinitely (183) unless the railroad shall actually need the land now covered by the houses, which is very improbable, as the track has been laid and is now in daily use.

In R. R. v. Balthaser, 119 Pa. St., 473, the Court said: "The lapse of time between the happening of an injury and the trial is a proper subject to be considered by the jury in making up the amount of damages for which to render verdict, but interest as such is not recoverable in action exdelicto. In actions where a definite sum of money is demandable as a debt, interest at the legal rate is a matter of right, and the jury properly can be directed to include it in their verdict; but actions brought to recover unliquidated damages for a wrong done proceed upon a different basis. The nature of the wrong, the attending circumstances, and the time when it was committed are all for the jury, and may be properly considered in the adjustment of the amount of the verdict." This case has been cited with approval, Klager v. R. R., 160 Pa. St., 386. Another case directly in point is Fowler v. R. R., 113 Mo., 458. Indeed, the principle is well recognized.

In Stephens v. Koonce, 103 N.C. 269, which was an action for damages for conversion, the Court held that in an action for damages not arising on contract the allowance of interest is a question for the jury to determine, and when they have not allowed it in their verdict the judgment bears interest only from its date. This is cited with approval in Lance v.Butler, 135 N.C. 423. In Williams v. Lumber Co., 118 N.C. 928, it was held that where damages were assessed upon a judgment by default and inquiry, "It was error to add any interest for the time elapsed prior to the verdict, as interest, if it should be allowed, is presumed to have been included by the jury in the amount of their verdict."

In the defendant's appeal we find

No error.