Holly Shelter Railroad v. Newton , 133 N.C. 132 ( 1903 )

This was a proceeding begun before the clerk under The Code, secs. 1944 and 1946, to condemn a right of way for a railway. The defendants appealed to the judge before the appointment of commissioners and the coming in of their report, the time at which an appeal in such cases is authorized by The Code, sec. 1946. The judge remanded the case to be proceeded in as required by that section. Thereupon the defendants appealed to this Court. No appeal lay, as we have already held in this cause at this term, upon the defendant's application for a writ of prohibition to prevent the clerk from proceeding under the judge's order of remand, pending this attempted appeal, which must therefore be dismissed.

If interlocutory appeals were allowable in such cases, they could be repeated again and again, on divers pretexts, and great delays to the detriment of the public interest would hamper and impede and render almost impossible the construction of new railways. It is conceivable that such appeals might be greatly fostered by lines already in existence, if averse to threatened competition. Therefore, the statute, The Code, secs. 1945, 1946, is explicit in denying interlocutory appeals in proceedings for condemnation of right of way for railroads. The interest of the landowner is preserved by the payment into court of the full assessed value of the strip of land condemned, which is required before the corporation can enter upon the premises. The decisions are uniform that the above is the unmistakable meaning and the reason for the statute. Telegraph Co. v. R. R., 83 N.C. 420 (where the matter is fully discussed by Smith, C. J.); R. R. v. R. R., ib., 499; Commissionersv. Cook, 86 N.C. bottom p. 19; R. R. v. Warren, 92 N.C. 622 (in which the reason for the statute is given), and Hendricks v. R. R.,98 N.C. 431, which says the above authorities "settle the course ofpractice in such proceedings and sufficiently state the reason for it." The above authorities have been cited and reaffirmed in this very cause (R. R. v. Newton, post, 136) in denying the petition for a (134) writ of prohibition, as above stated.

The defendants contend, however, that an appeal does lie, because there is here a plea in bar. But the statute and the decisions make no exception when there is a plea in bar in cases of condemnation. Indeed, in R. R. v.R. R., 83 N.C. 499, there were two pleas in bar, and the Court held that no appeal lay till after the confirmation of the commissioners' report. The defendants contend that they are entitled to have the issues of fact raised by the answer and tried by a jury. But that right they can have on appeal to the Superior Court after the report of the commissioners is confirmed. Formerly, the landowner had no right to a jury trial in fixing the compensation upon condemnation of a right of way, nor was the compensation required to be paid before entry. R. R. v. Davis, 19 N.C. 452; R. R. v.Parker, 105 N.C. 246; S. v. Lyle, 100 N.C. at p. 501. The Code, sec. 1946, changed this as to railroads, by requiring the company to pay into court the sum assessed before entry upon the right of way; and Laws 1893, ch. 148, further provides that the landowner "shall be entitled to have theamount of damages assessed by the commissioners or jurors heard and determined upon appeal before a jury of the Superior Court in term, if upon the hearing of such appeal a trial by a jury be demanded." Thus this statute, as well as The Code, sec. 1946, recognizes that the appeal is allowed after confirmation of the report of the commissioners. The language of section 1946 is that upon the coming in of the report exceptions may be filed thereto, "and upon the determination of the same by the court, either party may appeal to the next court at term, and thence, after judgment, to the Supreme Court."

This is a proceeding in rem, acting upon the property, and service of summons and complaint upon the defendant Newton, a nonresident, in the mode prescribed by chapter 120, Laws 1891, Clark's Code (135) (3 Ed.), sec. 218 (8), which was here used, "is a convenient and probably a more sure way of bringing home to the defendant the notice which was formerly made solely by publication." Long v. Ins.Co., 114 N.C. 469.

The defendants contend further, that the charter of the plaintiff as a railroad company is a fraud, and that the real object is not the conveyance of freight and passengers, but merely to operate a lumber road. If this is true, it would be a fraud upon the public to obtain the right of condemnation by such evasion, and upon a direct attack by quo warranto the charter would be vacated upon the establishment of the fraud, and the judge might make appropriate orders in that cause to preserve the rights of the relator in such action pendente lite, upon sufficient facts shown. That this railroad is to be only five miles long and is to run, not from one town to another, but from a river to a creek, raises a strong doubt as to the bona fides of the charter; but that is an issue of fact for a jury in a direct proceeding to attack the charter for fraud. Upon the face of the papers, the charter is regular and has been regularly granted. "Of course, the charter of a corporation cannot be collaterally attacked, and a direct proceeding must be brought to annul it. But if the charter were on its face inoperative and void, a court would so declare it in any proceeding to condemn land by virtue of the right of eminent domain." R. R. v. Stroud,132 N.C. 414. The same ruling that the charter cannot be collaterally attacked by answer in condemnation proceedings was made in R. R. v. LumberCo., 114 N.C. 690.

It was also held in Stroud's case, supra, that the filing of a proper profile is a condition precedent before an order of condemnation should be granted. The judge here allowed an amendment to file a (136) better profile, as he had power to do. R. R. v. Newton, ante, 132; Faison v. Williams, 121 N.C. 152. Should the final judgment be adverse to the defendants and be appealed from, then, if the amended profile is insufficient, like any other error, it will vitiate the proceedings, and the money paid into court by the plaintiff will be subject to the order of the court. The Code, sec. 1946. As the assessment so paid in is for the value of the land as well as the timber, it should be more than sufficient to reimburse the loss of any timber cut; besides, the court can make orders pendente lite, as suggested in the former decision in this cause at this term. That an injunction will not lie in a case like the present is fully considered and reaffirmed on a rehearing in R. R. v.Lumber Co., 116 N.C. 924.

Appeal dismissed.

Cited: Porter v. Armstrong, 134 N.C. 453; Troxler v. Building Co.,137 N.C. 59; S. v. Jones, 139 N.C. 619, 620; Cook v. Vickers, 141 N.C. 106;R. R. v. Bailey, 143 N.C. 380; R. R. v. R. R., 148 N.C. 64;Abernathy v. R. R., 150 N.C. 103; R. R. v. Oates, 164 N.C. 174, 175.