Cozad v. Kanawha Hardwood Co.
| Decision Date | 17 October 1905 |
| Citation | 51 S.E. 932,139 N.C. 283 |
| Parties | COZAD v. KANAWHA HARDWOOD CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cherokee County; Ferguson, Judge.
Action by H. O. Cozad against the Kanawha Hardwood Company. From a judgment continuing a temporary injunction, defendant appeals. Affirmed.
Plaintiff alleged: That he was the owner of a tract of land in Cherokee county, upon which he had erected a dwelling and planted a large number of fruit trees and made many other valuable improvements, requiring outlay of many thousand dollars. That the defendants are partners, conducting a general lumber business under the firm name and style of the Kanawha Hardwood Company. That defendants are threatening, and pursuant to such threats proceeded, to construct a railway over and through his lands for the purpose of hauling timber and timber products from their own lands. That in grading the route for such railway, and erecting trestles over the mountain, great and permanent damage will be done his property, etc. He applied to the resident judge of the district for a restraining order until the hearing, and a permanent injunction, etc. Upon the return day of the order to show cause, his honor, Judge Ferguson, upon hearing the complaint and answer, supported by affidavits, found the following facts: The defendants, after notice, applied to the highway commission of Valleytown township, in said county, for a right of way to construct and operate a private railroad from the town of Andrews, a railroad station on the Southern Railway, to standing timber owned by the defendants in Graham county, which right of way would pass over the plaintiff's land. The plaintiff filed an answer to the petition. From the order, the highway commission finding that it was necessary, reasonable, and just that the petitioners should have the right of way, and appointing a jury to lay it off, plaintiff appealed to the board of commissioners of Cherokee county. From the order of the said board of commissioners, affirming the proceedings of the highway commission, the plaintiff appealed to the superior court. The appeal is now pending in said court. That the defendants are the owners of standing timber from which no public road leads and to which no water is convenient. That the proposed road leads from a railroad station to such standing timber, and that such standing timber cannot be marketed with a profit to the defendants without the construction of a railroad. That the construction of a railroad is necessary for the profitable marketing of such timber, and that the route across the plaintiff's land is a reasonable route. That in taking such route no injustice is done the plaintiff. That there is no reason why his land should not be taken, as well as the land of any others over which the road might be constructed. That five years will not be an unreasonable time in which to remove such standing timber. Defendants have graded a considerable portion of the proposed road, not on the lands of the plaintiff, but other portions of the proposed route. They have bought and contracted for iron rails, locomotives, and other appliances for operating said road. Defendants are not a corporation, and do not propose to become liable as common carriers, but propose to construct and use the road for their sole and exclusive use in removing their timber and timber products from their lands in Graham county to the railroad station at Andrews and to the markets. There are other large boundaries of timber land of like kind contiguous to the defendants' timber. Defendants do not propose to transport over their proposed railroad such timber for reasonable charges to be fixed by the corporation commission or other authority of the state. Defendants do not claim any other right to enter upon plaintiff's land other than such as they acquired by the order of the highway commission His honor, upon the foregoing facts, continued the injunction to the hearing. Defendants appealed.
Dillard & Bell, for appellant.
Jones & Johnston and Shepherd & Shepherd, for appellee.
CONNOR J. (after stating the case).
The defendants insist that, pending the proceeding instituted before the highway commission, the courts should not interfere by injunction with the construction of their proposed railway. This contention would be unanswerable, but for the fact that plaintiff insists that in no point of view can the result of that proceeding affect his right to enjoin defendants, for that: (1) No power is conferred upon the highway commission to order a railway of the character or for the purpose contemplated by the defendants to be laid out. (2) That, if the statute undertook to confer such power, it would be invalid, violating the elementary principle that private property can only be taken for a public use, and then with compensation. These contentions render it necessary to examine the provisions of the statute creating the highway commission of Valleytown township. Chapter 210, p. 222, Pub Laws 1905.
By the first section of the statute provision is made for electing three persons, who shall constitute the highway commission for said township, naming those who shall act until the time appointed for the first election. By the second section, the commission is vested with the powers, rights, etc., exercised by the board of supervisors of public roads, etc. "They shall have power and authority to order the laying out of public roads," etc. "They shall also have power and authority to lay out cartways, rights of way for tramroads church and mill roads, and to discontinue the same in the way and manner provided in sections 2033, 2056, 2057, 2062, 2063 of the Code or any amendments thereof." It is clear that the highway commission established by the act has no larger or other power in regard to ordering cartways or tramways to be opened than is exercised by the boards having jurisdiction over such matters under the general public laws. It is equally clear that the road proposed to be opened and operated does not come within the definition of cartways provided by sections 2056, 2057 of the Code. This right is conferred only on persons ""settled upon or cultivating any land." The cartway authorized to be opened ""shall be kept open for the free passage of all persons on foot or horseback, carts and wagons." Section 2057 provides that persons over whose lands cartways have been opened "may erect gates or bars across the same." The section was amended by chapter 46, p. 97, Laws 1887, by inserting in line 1 the words "or shall own any standing timber," and in lines 6 and 15, between the words ""cartway" and "to," the words "tram or railway," and in line 18 striking out the word "way," and inserting the words "cartways established under this act. Section 2057 is amended by inserting in line 1 the words "tram or railways," and by inserting in line 6, between the word "just" and "and," the words ""cartways, tramways, or railways for the removal of timber shall continue for a period not longer than five years, and in entering cultivated land, shall protect the same by sufficient stock guards." The effect of these amendments is to confer upon owners of land upon which there is any standing timber the right to have opened tramways or railways, with the exclusive use of them, confining to cartways the right of all persons to pass over them. The right to maintain such tramways or railways is confined to a period of five years, with the duty of erecting stock guards when they pass through cultivated land, thus depriving the owner of the land through which such tram and rail ways pass the right to erect gates or bars across them. It appears that the highway commission ordered the laying out of a private way for a private railway through and over the plaintiff's land, with "such curves and grades as are necessary, according to the survey made, in order to reach the lowest gap on top of the mountain. *** Said right of way, when it extends through woodland, or said tract, to be of the width of 150 feet, and through cultivated fields or cleared land to be of sufficient width for the roadbed, trestles, and cuts only.
The construction of section 2056 of the Code, being chapter 508 Acts 1798, providing for the opening of cartways, has been frequently before this court. Its constitutionality has never been questioned, and is not involved in this appeal. The validity of similar statutes has been discussed and sustained in other jurisdictions upon the ground that, although established and opened upon the petition of private landowners and primarily for their benefit, they are, as provided by our statute, open for the free passage of all persons on horse, foot, in wagons, or carts. This extension of their use impresses upon them a public character. In this way the power to invoke the right of eminent domain, for the purpose of opening and maintaining them, is sustained. It is said: " ...
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