American Union Tel. Co. v. Wilmington, Columbia & Augusta R.R. Co.

• Decision Date: 30 June 1880
• Court: North Carolina Supreme Court
• Parties: AMERICAN UNION TELEGRAPH COMPANY v. WILMINGTON, COLUMBIA AND AUGUSTA RAILROAD COMPANY.

83 N.C. 420

AMERICAN UNION TELEGRAPH COMPANY

v.WILMINGTON, COLUMBIA AND AUGUSTA RAILROAD COMPANY.

Supreme Court of North Carolina.

June Term, 1880.

PETITION for Certiorari heard at June Term, 1880, of THE SUPREME COURT.

Messrs. D. K. McRae and D. L. Russell, for plaintiff .

Messrs. Junius Davis and Battle & Mordecai, for defendant .

SMITH, C. J.

The plaintiff, a corporation formed under the laws of New York, instituted in the superior court of New Hanover and is prosecuting a suit against the defendant corporation, under the act of March 19th, 1875, entitled “an act to facilitate the construction of telegragh lines,” for the condemnation of a right of way for the construction and operation of lines of telegraphic communication along the defendant's road. At the hearing of the application before Judge MCKOY, at chambers on the 8th day of July last, he adjudged the plaintiff to be entitled to the right of way demanded, and appointed commissioners to ascertain and report the compensation to be paid to the defendant, as damages for the condemned property. The defendant thereupon applied for an appeal, and being refused now moves this court for a writ of certiorari to bring up the record of the cause, in order that the ruling of the judge may be reviewed. These are the undisputed facts set out in the affidavit, upon which the application is based, and the only point to be considered is whether the defendant is entitled to an appeal from the judgment rendered.

Upon a careful examination of the statute, and the portions of the act of February 8th, 1872, by reference incorporated with it, and regarding the policy indicated in both to favor the construction and early completion of such works of internal improvement, telegraphic being upon the same footing as railroad corporations, we are of opinion it was not intended in these enactments to arrest the proceeding authorized by them at any intermediate stage, and the appeal lies only from a final judgment. Then and not before may any error committed during the progress of the cause, and made the subject of exception at the time, be reviewed and corrected in the appellate court, and an appeal from an interlocutory order is premature and unauthorized.

It is the manifest intent of the act, as expressed in its title and apparent upon its face, to encourage and promote this and kindred enterprises for the public benefit, and to avoid the inconveniences and delays arising from opposition, as far as practicable and consistent with the rights of proprietors whose land or an easement in which is to be condemned and appropriated. In pursuance of this object the first section confers upon the judge in vacation “the same power and jurisdiction as the superior court may exercise, and subject to the same right of appeal to the superior (an obvious mistake and intended for supreme) court, as from final judgments of the superior court,” and it declares that the clerk shall “perform the same duties and be entitled to the same fees as in other similar cases in the superior court.” He is also required to attend the court at the “court house of his county” and to “make all proper orders and entries, and issue all proper process, writs or notices as commanded by the superior court whether in term time or in vacation.”

The plain meaning of the section is to bestow upon the judge,...