Land v. Wilmington & W. R. Co

• Decision Date: 06 November 1890
• Court: North Carolina Supreme Court
• Parties: Land. v. Wilmington & W. R. Co.

107 N.C. 72

12 S.E. 125

Land.

v.Wilmington & W. R. Co.

Supreme Court of North Carolina.

Nov. 6, 1890.

Taking Land fob Railroad—Assessment of Damages—Limitation.

The charter of a railroad company provided that when it had appropriated land without authority, no action shall be brought by the owner, except a petition to have his damage assessed, for the bringing of which no time was limited by charter. Held that a petition by the owner for the assessment of damages was neither an action of trespass nor one on a liability created by statute, within Code Civil Proc. N. C. § 155, limiting such action to three years.

Appeal from superior court, Nash county; E. T. Boykin, Judge.

Don Gilliam, for appellant.

Bunn & Battle, for appellee.

Shepherd, J. The defendant entered upon the land of the petitioner, and constructed its road in 1886. It has no conveyance of the land, nor has it acquired any title by lapse of time. Its title, therefore, must be derived from the provisions of its charter, and this does not provide for the vesting of title in the defendant until, either at its instance (section 14 of its charter, Rev. St.) or that of the petitioner, (section 18, Id.,) the damages have been assessed and paid. This is also true of the general railroad act, (chapter 49, Code,) the privileges of which are extended to existing railroad corporations. Code, § 1982. No such proceedings were instituted by either party until the petitioner filed this petition on the 15th of February, 1890. Unlike the charter of the North Carolina Railroad Company, (section 29,) there is no time prescribed in the charter of the defendant, nor in the general railroad act, in which the owner is to be barred of his right of entry or compensation. It must follow, then, that the defendant is occupying the land of the petitioner without any legal title, and that, in the absence of any statutory provision to the contrary, the petitioner could sue in trespass or in ejectment. The possession of the defendant, however, is protected by a provision of its charter to the effect that where the defendant has entered without any legal proceedings, no action of trespass, or of any other character, shall be brought by the owner, except a petition to have his damages assessed. This takes away all damages for the precedent trespass, and confines the owner to the compensation provided by the statute. These extraordinary privileges which have been conferred upon the defendant ought to be sufficient, it would seem, to meet all the reasonable demands incident to the construction of its road. But it is insisted that, while it may occupy the owner's land, and acquire title by an adverse possession of 20 years, the owner is powerless to prosecute his only remaining remedy, except within the first three years of that period. We cannot believe that such an anomalous state of affairs was contemplated by the legislature. The defendant could have acquired title by instituting proceedings under its charter, but this it has failed to do, and it would be only following the dictates of common justice to allow the owner his compensation (not damages for the trespass) at any time before the possession of the defendant has ripened into an indefeasible title. In other words, so long as the defendant is content to occupy the land without title, the owner should not be prevented from pursuing his single remedy. In the absence of any legislation in the charter, or in the general railroad act, the...