Fore v. Western N.C.R. Co.
| Decision Date | 18 December 1888 |
| Citation | 8 S.E. 335,101 N.C. 526 |
| Parties | FORE v. WESTERN N.C. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Buncombe county; JAMES C. MACRAE, Judge.
Trespass by L. P. Fore against the Western North Carolina Railroad Company for injury to land. Judgment for plaintiff and defendant appeals.
In trespass against a railway company for invading plaintiff's garden and laying its tracks within 30 feet of the house, its charter prohibiting it from taking any dwelling house, garden, etc., without the owner's consent, no recovery can be had for hazard to the house by the proximity of the tracks and the danger from fire.
D Schenck, Chas. A. Price, and F. H. Busbee, for appellant.
F. A Sondley, for respondent.
Upon the call of this case, and before entering upon the trial the plaintiff moved to dismiss the appeal because no entry of the appeal was found on the record. But it does appear from the case made up by the judge, at the close of which are these words: This is sufficient. The mere neglect of the clerk to note an appeal actually taken and prosecuted leaves no ground for the motion, and it is denied. We proceed to examine the case on its merits.
The Western North Carolina Railroad Company, formed and organized under an act of the general assembly, ratified on the 15th day of February, 1855, (Acts 1854-55, c. 228,) was invested with "the same powers to condemn all such lands" (needed in the construction of the road) "belonging to individuals or corporations as may be needed for the aforenamed purposes, as were granted to and conferred upon the North Carolina Railroad Company by their act of incorporation, and shall proceed to condemn such lands in the same manner and to the same extent, under the like rules restrictions, and conditions, as are prescribed in the charter aforesaid for the government of the said Company," etc.; and further, that, "in the absence of any contract or contracts in relation to lands through which said road may pass, it shall be presumed that the land over which said road may be constructed, together with 100 feet on each side thereof, has been granted by the owner or owners to the company, and the said company shall have good right and title thereto, and shall have, hold, and enjoy the same so long as it shall be used for the purposes of said road and no longer, unless the owner or owners shall apply for an assessment of the value of said lands, as hereinbefore directed, within two years next after that part of said road has been located." This section (29) was a saving clause in favor of "infants, femes covert, persons non compos or beyond seas;" and that referred to in the charter granted to the North Carolina Railroad Company (Acts 1848-49, c. 182, § 27) superadds a concluding proviso in these words: "That the right of condemnation herein granted shall not authorize the said company to invade the dwelling-house, yard, garden, or burial ground of any individual without his consent." The defendant company, in the asserted exercise of the power conferred, entered upon and laid out by stakes placed in the central line, in 1878 designating the course of the track, and late in the year 1880 proceeded by excavation and banking, to level the ground for the laying of the cross-ties and iron rails. In doing this the servants of the company, under an overseer in charge, entered upon and passed through a garden of the plaintiff near to his dwelling, within 30 feet thereof, and committed the trespass for the redress of which this action was instituted on the 15th day of August, 1882, and was pending until the trial before the jury at January term, 1888. No other proceeding has been brought to obtain compensation from the company for the land thus taken and appropriated to its uses as a railway, and the demand now preferred is for compensation for the damages committed in the...
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