Hill v. Glendon & Gulf Min. & Mfg. Co.

• Citation: 18 S.E. 171,113 N.C. 259
• Parties: HILL et al. v. GLENDON & GULF MIN. & MANUF'G CO.
• Decision Date: 31 October 1893
• Court: United States State Supreme Court of North Carolina

18 S.E. 171

113 N.C. 259

HILL et al. v. GLENDON & GULF MIN. & MANUF'G CO.

Supreme Court of North Carolina

October 31, 1893

Appeal from superior court, Chatham county; H. R. Bryan, Judge.

Petition by T. N. Hill and others against the Glendon & Gulf Mining & Manufacturing Company for the assessment of damages caused by the taking of petitioners' land for a right of way. The clerk of the court sustained defendant's demurer to the petition, and petitioners appealed to the superior court where the demurrer was overruled. Defendant appeals. Affirmed.

This was a special proceeding instituted before the clerk of Chatham superior court by Thomas N. Hill and his infant children, owners of one-fourth of the tract of land in said county known as "La Grange," to have damages assessed for the petitioners against the defendant for the taking of their interest in the part of said land by defendant for right of way for its railroad, and heard at chambers in Durham, on March 31, 1893, before Bryan, J. John Manning and wife and M. A. Southerland, who together own three-fourths of the land, came into court, and made themselves parties to the proceeding, and claimed that they also were entitled to damages or compensation from the defendant, for the reason, as they allege, that the grant of a right of way over the land which they had made to the defendant had become null and void, the defendant having agreed that it should be void if the road was not constructed within two years from the date of the grant, and this had not been done. The period of two years had not elapsed when the original petition was filed, but had elapsed when they made themselves parties. The defendant filed a demurrer, which was sustained by the clerk. An appeal was taken. His honor heard the appeal, and overruled the demurrer, and the defendant appealed. The demurrer was as follows:

"The defendant demurs to the original complaint (or petition) filed in this proceeding by the petitioner Thos. N. Hill, and his children and copetitioners with him, and specifies the following objections thereto, to wit: (1) For that it appears from the face of said complaint (or petition) that there is a defect of parties in that John Manning and his wife, Louisa J. Manning, M. A. Southerland, and A. P. Gilbert are not joined, either as plaintiffs or defendants. (2) For that the said complaint (or petition) does not state facts sufficient to constitute a cause of action, in that the said complaint alleges a conveyance by petitioners' cotenants in common, to the defendant of the right of way for its railroad through the land described in the complaint, and does set forth therein and thereby a legal justification for the alleged action of the defendant. (3) For that said complaint (or petition) does not set forth, as is provided in sections 1698 and 1699, c. 38, and in sections 1943 and 1944 c. 49, Code of North Carolina, inability of plaintiffs (or petitioners) to 'agree' with defendant for the purchase of the right of way in question, nor any effort to 'agree' about it.

"And the defendant, excepting to all orders of the court allowing interpleading prior to service of process or return day for defendants' appearance in this proceeding, demurs to the aforesaid complaint (or petition) as adopted by A. P. Gilbert on the grounds: (1) For that at the date of said A. P Gilbert's interplea there was still a defect of parties in that said John Manning and wife, Louisa J. Manning, and M A. Southerland were not joined as parties, either plaintiff or defendant. (2) For that as to said A. P. Gilbert the complaint does not state facts sufficient to constitute a cause of action in his favor, in that said complaint (or petition) alleges a conveyance to the defendant by the lessors of said Gilbert of the right of way for its railroad through the land described in the complaint, and does set forth therein and thereby a legal justification for the alleged action of the defendant. (3) For that it is a misjoinder of causes of action to unite in the same proceeding the alleged cause of action of said A. P. Gilbert with that of his coplaintiffs as against this defendant. (4) For that the complaint does not state the unexpired term of said Gilbert's alleged lease. (5) For that the said Gilbert's interplea adopting the original complaint does not state inability to 'agree,' or any effort to 'agree,' with defendant about the values of his alleged interest in the right of way in question, as is provided in sections 1698 and 1699, 1943 and 1944, Code of North Carolina. And the defendant, excepting to all orders of the court allowing interpleading by John Manning and wife and M. A. Southerland, demurs to the original complaint (or petition) as affected by the interplea of said John Manning and wife and M. A. Southerland as a misjoinder of causes of action in this: That the alleged cause of action of the original petitioners, Thomas N. Hill and his children accrued prior to December 23, 1892, (the date of the commencement of this proceeding,) and the alleged cause of action of said John Manning and his wife, Louisa J. Manning, and M. A. Southerland accrued (if at all) subsequent to said December 23, 1892, viz. not until after March 7, 1893. (2) For that the alleged grounds of the interplea of said John Manning and his wife, Louisa J. Manning, and M. A. Southerland constitute (if at all) a new cause of action arising or accruing since December 23, 1892, the date of the commencement of this action. (3) For this: That it appears from the face of the interplea of said John Manning and his wife, Louisa J. Manning, and M. A. Southerland that under the deeds set forth as exhibits, and annexed thereto, the entry on the lands therein described, and excavations made and embankments erected, etc., therein prior to March 7, 1893, were justified thereby, and said John Manning and wife, Louisa J. Manning, and M. A. Southerland are thereby estopped to claim damages therefor, and article 5 of said interplea does not allege an entry, etc., subsequent to March 7, 1893, or after an alleged failure of the 'conditions,' as it is termed, of said deeds, and said article 5 is ambiguous and indefinite as to when plaintiffs intended to allege said entry, excavations, and embankments were made; and in this said interplea of said John Manning and wife, Louisa J. Manning, and M. A. Southerland fails to state facts sufficient to constitute a cause of action. (4) For this: That said John Manning and wife, Louisa J. Manning, and M. A. Southerland cannot maintain this proceeding against this defendant, under the provision of chapters 49 and 38, Code of North Carolina, as is shown upon the face of said interplea, and a proper construction of the said deeds, this not being such a case as is provided for by statute as falling within the class of cases in sections 1943 and 1944 and 1699 and 1698, Code of North Carolina, where parties are 'unable to agree,' etc. Wherefore defendant demands judgment that this proceeding be dismissed, and for judgment...