State v. Wells

Citation55 S.E. 210,142 N.C. 590
PartiesSTATE v. WELLS.
Decision Date16 October 1906
CourtUnited States State Supreme Court of North Carolina

Appeal from Superior Court, Duplin County; E. B. Jones, Judge.

D. Wells was convicted for willful trespass before a justice of the peace. On appeal to the superior court the conviction was sustained, and defendant prosecutes a further appeal. Reversed, and new trial granted.

Defendant having been convicted before a justice of the peace for a willful trespass, under section 3688, Revisal 1905, appealed to the superior court, where it was agreed that the judge might find the facts and enter judgment accordingly. The court found the facts, and thereon adjudged defendant guilty and imposed a fine of $1. Defendant excepted and appealed assigning for error that the court adjudged defendant guilty on the facts as found. From the findings of facts it appears that the charter of the Hilton Railroad & Logging Company (chapter 42, p. 88, Priv. Acts 1901) confers upon it the right to condemn lands according to the regulations and procedure established by the general law (Revisal 1905, c 61, § 2575 et seq.). Pursuant to the power so conferred, condemnation proceedings were instituted by the company against one F. H. Carter. A demurrer was filed to the petition made in the cause, which was heard May 28, 1906, when the demurrer was sustained by the clerk, and an appeal was taken to the judge holding the courts of the district, who ordered an amended petition, map, and profile to be served on defendant, F. H. Carter, on May 29th. Pending the proceedings before any appraisement made, and without any money having been paid into court by the petitioner, the defendant, an employé of the road, after being forbidden by the owner, entered on the lands for the purpose of constructing the road; and for this entry said defendant was adjudged guilty of criminal trespass, and excepted and appealed as heretofore noted.

Walter Clark, Jr., H. L. Stevens, and the Attorney General, for the State.

Rountree & Carr, for defendant.

HOKE J. (after stating the case).

The question intended to be presented in this appeal is whether, under the statute referred to, conferring power to condemn land, and on the facts as found by the court, the railroad corporation, by its agent and employés, had the right to enter on the lands of F. H. Carter, the prosecutor, for the purpose of constructing their road, before an appraisement made, and before paying into court the sum appraised by the commissioners appointed for the purpose. The statute (chapter 61, Revisal 1905) provides that the company may enter on land for the "purpose of laying out the road"; and the same section says that "they may also enter on any contiguous lands along the route which may be necessary for depots, warehouses and other buildings required, and shall pay to the proprietors such sum as may be agreed upon." This right of entry is only for the purpose of marking out the route and designating the building sites desired, to the end that the parties may come to an intelligent agreement as to the price. Another reason for granting the company a right of entry at this stage and for this purpose is that section 2599 requires that, in case condemnation proceedings become necessary, the company is required to file with their petition, or rather to have served with their summons, a map showing how the line is located through the land, and a profile showing the depths of the cuts and length of embankments, etc. Under section 2575 no right of property passes unless by agreement of the parties, and no right or interest in or upon the land is given as against the owner except to lay out the line and designate the sites required for the necessary and proper construction of the road as proposed. In case the parties cannot agree, then the company may proceed to condemn the land as directed in other sections of the act. As stated, a map and profile must be served with the summons, though a failure to do this may be cured by amendment, as was done here (Railroad v. Newton, 133 N.C. 137, 45 S.E. 549, 98 Am. St. Rep. 701); and on petition filed, if no sufficient cause is shown contra, commissioners are to be appointed, who shall view the premises, determine the amount of compensation, and duly report their proceedings, etc. When the appraisal is made by the commissioners, the statute (section 2587) provides "that if said company, at the time of appraisal shall pay into court the sum assessed by the commissioners, then, and in that event, the said company may enter, take possession of, and hold said land, notwithstanding the proceedings on appeal." Revisal 1905, § 2587. While it is the generally accepted construction of the section that the payment of the amount assessed by the commissioners, when this assessment has been made in compliance with the statute, is prima facie sufficient protection to the landowner, and will authorize the company to enter on the land for the purpose of building their road according to the plans and specifications considered and passed upon, it is also true that prepayment of the amount into court is a condition precedent, and until such payment no right of entry exists for such purpose. The right given by section 2575 is for laying out and marking a map and profile of the route, and to enable the parties to agree as to proper compensation. When this agreement cannot be made, and condemnation proceedings are instituted, the right given under section 2587 is to enter when the amount of the appraisement has been paid into court, and not before.

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