Haislip v. Wilmington & W. R. Co

• Decision Date: 04 March 1889
• Citation: 102 N.C. 376,8 S.E. 926
• Court: North Carolina Supreme Court
• Parties: Haislip v. Wilmington & W. R. Co.

8 S.E. 926

(102 N.C. 376)

Haislip

v.Wilmington & W. R. Co.

Supreme Court of North Carolina

March 4, 1889

1. Eminent Domain—Compensation—Injury to Growing Crop.

In an action for damages for land taken by defendant company for a right of way, defendant is liable for damages to the growing crop outside the right of way, which are actually sustained by reason of the construction of the road; and such damages are not" remote, speculative, or contingent. "¹

2. Same—Extent of Title of Railroad Company.

The defendant requested the court to charge "that, the railroad having no title to the land, but only the right to use the same for the purpose of its construction, the jury, in estimating damages, will consider only the land actually used by the railroad, and not the entire width of 130 feet. " Held that, as the defendant's charter provided that, after the assessment of the damages, and the payment thereof, the property covered by the road, and 65 feet on each side, shall become, to all intents and purposes, vested in the company in fee-simple, the instruction was properly refused.

3. Same—Benefits to be Deducted.

The defendant requested the court to charge "that the jury will consider any special benefit to plaintiff from the construction of the railroad, and offset same against such damage as they may allow; and in this connection they may consider the increased value of plaintiff's timber, in that the railroad makes it more salable and more accessible to market, and makes a market for cross-tie timber, —his timber lying on both sides of the road. " The court gave the instruction, with the addition: "But the jury will bear in mind that the plaintiff is entitled to have, in estimating the increased value of his timber, the benefit of all advantages common to others. " Held proper.

Action by W. A. Haislip against the Wilmington & Weldon Railroad Company, to recover damages for the right of way across plaintiff's land. Verdict and judgment for plaintiff. Defendant appeals.

C. M. Busbee, for plaintiff. Moore & Stubbs and J. S. Bridgers, for defendant.

Shepherd, J. This was an action to recover damages for right of way for branch railroad of defendant company across land of plaintiff, tried at Decem-ber term, 1888, of Martin superior court, before Graves, Judge. The plaintiff filed his petition before the clerk of the superior court of Martin county, asking the appointment of commissioners or jury, under the charter of defendant company, to assess the damages and benefits in accordance therewith to the lands of plaintiff, by reason of the building of defendant company's railroad over the same. Commissioners were appointed, who made a report, a copy of which is hereto annexed as part of this case. The clerk affirmed the report. The plaintiff and defendant both appealed from the assessment and report of the commissioners, and from the order of the clerk confirmingthe same. The defendant's appeal was that the estimate of damages was toc large, and that of benefits too small, and specific exceptions to report were (1) that there was no land condemned for the use of the railroad; (2) that that laid off is too vague and indefinite in its location; (3) that it was not for the jury to mark out the course of the road, but the privilege of the company; (4) that there is no way from the report to ascertain the quantity of the land so as to estimate value of land or damages.

The court ruled as follows on the exceptions: "Upon considering the exceptions, the court considers that the reference of the report to the location by the engineers of defendant would enable the court to see definitely how the road-bed is located. Therefore the first exception is overruled. It is true that it was not for the jury to mark out the course of the road, but the privilege of the company, but the court understands the report as assigning damages on the land as laid out by the defendant's engineers. As to the third exception, that is certain which can be made certain, and by reference to the location of road of defendant made by its engineers, and referred to by commissioners, the land subjected to the easement for the benefit of the, defendant may be ascertained and identified. Exceptions two and three are therefore overruled. "

After the disposition of the exceptions as above, issues were submitted to the jury as to the damages and benefits accruing to the plaintiff by reason of the use and occupation of the land by defendant as right of way for its railroad. Evidence was introduced tending to show amount of damages, etc., and to show destruction...