McMahan v. Black Mountain Ry. Co.
| Decision Date | 15 December 1915 |
| Docket Number | 518. |
| Parties | MCMAHAN v. BLACK MOUNTAIN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Yancey County; Long, Judge.
Proceedings by Judson McMahan against the Black Mountain Railway Company to recover damages arising from the construction of a railroad. From judgment of nonsuit on appeal from clerk of superior court, plaintiff appeals. Reversed.
A lease held not to authorize the lessee to permit the main line of a railroad to be constructed and operated over the leased land where it appeared that such use of the land was not intended by the parties to the lease.
On the hearing there was evidence tending to show that plaintiff was the owner of a tract of land of 25 acres in said county, and that defendant company had entered on a portion of same constructed its depot and various tracks, and was operating its road under its franchise, etc.; that the works of defendant on the property to date consisted of six different railroad tracks, a depot and station house, and, in addition thereto, the Carolina Spruce Company has constructed and is operating its own private line across and upon said land. And it was admitted by defendant:
"That it has its main line of railroad on the land described in the lease, and admits that there is a spur going to coal chute on the same land, and that it has some other branches on the land connected with the private lines of the Carolina Spruce Company, the number of which the counsel does not know, but claims they are short spur lines for outside connection, and that it has a depot on the land described in the lease."
It was further admitted that the defendant had acquired, by written assignment, the interests and privileges held by Carolina Spruce Company, under a written lease conveying to said company the said property for 20 years, with other stipulations appearing in the lease, and claimed the right to enter and construct its railroad station, etc., and operate the same under and by virtue of the terms of said lease without being amenable to damage or other claim of plaintiff.
On motion duly made, the court, being of opinion that the plaintiff had no present right to recover damages, entered judgment of nonsuit, and plaintiff excepted and appealed.
Hudgins Watson & Watson, of Marion, for appellant.
J. J. McLaughlin, of Johnson City, Tenn., and Pless & Winborne, of Marion, for appellee.
HOKE, J. (after stating the facts as above).
It having been made to appear that the defendant company has entered on plaintiff's land, constructed its road, and is operating the same by virtue of its franchise, under our decisions and statutes applicable, and so far as the remedy is concerned, it was open to plaintiff either to petition before the clerk under the law governing such proceedings, the course pursued in this instance, or to sue in the superior court for permanent damages suffered, in which case, and on payment of same, an easement would pass as in case of condemnation. Porter v. Railroad, 148 N.C. 563, 62 S.E. 741; Beasley v. Railroad, 147 N.C. 363, 61 S.E. 453; Beasley v. Railroad, 145 N.C. 272, 59 S.E. 60; Revisal 1905, § 394. Our cases on the subject also hold that, in awarding damages under either procedure, the plaintiff may recover the market value of the land actually covered by the right of way and also damages done to the remainder of the tract, deducting from the estimate the pecuniary benefits or advantages which are special and peculiar to the land in question, but not those which are shared by the owner in common with other owners in the same vicinity. Railroad v. Mfg. Co., 169 N.C. 160, 85 S.E. 390; Railroad v. Armfield, 167 N.C. 464, 83 S.E. 809; Railroad v. McLean, 158 N.C. 498, 74 S.E. 461.
Speaking to the reason for awarding the full market value of the land actually covered by the right of way, the court, in McLean's Case, supra, said:
"In determining this difference (that is, the value before and after the imposition of the easement), owing to the fact that the easement is perpetual in its nature and, in all probability, likely to become permanent and to the position just referred to, that the entire right of way may be at any time appropriated and used for railroad purposes whenever, in the judgment of the company, such use is required, it is held by the weight of authority that the damages allowed the owners, as a general rule, shall include the market value of the land actually taken, etc."
It is not claimed in the present case that any such right of way has been condemned or paid for by defendants in the present instance, but it is contended by defendant that no damages are recoverable by reason of a lease of four acres of the property made by plaintiff to the Carolina Spruce Company, bearing date March 12, 1912, and which said company had assigned to defendant before it entered upon the property. This instrument, after leasing to the Spruce Company the four acres in question for the term of 20 years, on payment of $50 per year, contains the following stipulations:
"The party of the first part covenants and agrees that they will willingly give possession of said house now occupied by them at any time...
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