Carolina Cent. Ry. Co. v. Love

• Citation: 81 N.C. 434
• Parties: CAROLINA CENTRAL RAILWAY COMPANY v. R. C. G. LOVE, Guardian.
• Decision Date: 30 June 1879
• Court: United States State Supreme Court of North Carolina

81 N.C. 434

CAROLINA CENTRAL RAILWAY COMPANY

v.R. C. G. LOVE, Guardian.

Supreme Court of North Carolina.

June Term, 1879.

APPLICATION for an Order to appoint commissioners for the purpose of condemning land for the use of the plaintiff company, heard on appeal at Chambers in Lincolnton on the 11th of February, 1879, before Schenck, J.

This proceeding was begun by the service of a notice upon defendant that the plaintiff would apply to the clerk of the superior court of Gaston county for the appointment of three commissioners to value two acres of land, belonging to the ward of defendant, lying on the west side of Catawba river and joining the right of way of the company, to be condemned for the use of the plaintiff. On return of the notice, the plaintiff filed its petition before the clerk for the purposes indicated above, and an order was made appointing commissioners to view the premises and to value and condemn so much of the land as in their opinion was necessary to serve the uses of the company. And from this order the plaintiff appealed to the judge of the district who reversed the judgment of the clerk in the words set out in the opinion of this court, and the defendant appealed.

Messrs. Hinsdale & Devereux, for plaintiff .

No counsel in this court for defendant.

SMITH, C. J.

The act of February 20th, 1873, under which “The Carolina Central Railway Company” was incorporated and formed, provides in sections 9 and 10 for the condemnation and valuation of lands needed in the construction and operation of the road. Acts of 1872-'73, ch. 75.

The former section authorizes the clerk of the superior court of the county, wherein lands sought to be appropriated to the use of the road may lie, to appoint three commissioners to make such valuation, gives the right of appeal to the superior court, and directs, when the owner may be an infant, that notice be given to his guardian of the intended application.

The required notice in the present case was given the defendant and the plaintiff applied by petition for the condemnation of two acres of the infant's land, particularly describing it “for the effectual operation of said railway,” and “the building of houses for servants, agents and persons employed on said railway.” The guardian put in no answer and set up no defence, and thereupon the clerk ordered, “that R. H. McLeod, John B. Fite and E. B. Stone be appointed commissioners to view the premises described in the petition and to condemn and value so much thereof as may in their opinion be necessary.”

The plaintiff appealed, and the judge at Chambers, February 11th, 1879, made the following order: “It appearing to the court, by the complaint filed in this case, that it is alleged that two acres of land were necessary to be condemned for the purpose therein mentioned, and that no answer is filed, nor the allegations in any wise denied or put in...