Postal Telegraph Cable Co. v. Southern Ry. Co.

• Decision Date: 17 October 1898
• Citation: 90 F. 30
• Court: U.S. District Court — Western District of North Carolina
• Parties: POSTAL TEL. CABLE CO. v. SOUTHERN RY. CO.

90 F. 30

POSTAL TEL. CABLE CO. v. SOUTHERN RY. CO.

United States Circuit Court, W.D. North Carolina.

October 17, 1898

J. R McIntosh and A. L. Brooks, for plaintiff.

Stiles & Holladay, for defendant.

SIMONTON Circuit Judge.

The defendant, at the hearing of this case on petition at Asheville, interposed a demurrer to dismiss the complaint because the facts stated therein disclosed no cause of action. The demurrer was overruled, and an order was made providing for the appointment of commissioners. At a later date, defendant came in, and asked leave to answer, and to this end the order be vacated. The order passed upon overruling the demurrer was based on a construction of the Code of North Carolina of 1883, which left in the discretion of the court the privilege of answering over. This, however is not in accordance with the law of North Carolina. 'After the decision of a demurrer, the judge shall, if it shall appear that the demurrer was interposed in good faith allow the party to plead over upon such terms as may be just. ' Code, Sec. 272. There can be no doubt as to the good faith of the demurrer. This section has been construed to give the defendant the right to answer over upon overruling the demurrer. Moore v. Hobbs, 77 N.C. 65; Bronson v. Insurance Co., 85 N.C. 441. In this last case it was held that it was not proper to interpose the condition that the costs be paid. In Morris v. Gentry, 89 N.C. 249, this right to answer over was sustained even after demurrer overruled in the supreme court. The order for the commissioners is vacated, and leave is given to defendant to answer over.

Exercising this right, the defendant has answered. The answer, after setting up very many grounds of defense heretofore passed upon, and therefore now overruled, adds another. It avers that very many sections of the land over which the road runs, and which the petitioner seeks to condemn, are owned in fee simple by the defendant; that thus the petitioner does not seek to condemn a right of way upon an easement only, but it also seeks to condemn the land of defendant. This being so, condemnation proceedings must be had in the county in which the land lies (Code, Sec. 1944); the provision of the Code which authorizes proceedings in one county only applying only to the condemnation of an easement.

The language to be construed is in section 2010 of the Code, and in the proviso. It is in these words:

'Provided that only the interest of such parties as are brought before the court shall be condemned in any such proceedings, and if the right claimed be over or upon an easement or right of way which extends into or through more counties than one, the whole right and controversy may be heard and determined in one county, into or through which such easement or right of way extends.' The petitioner demurs to the answer, and the question of construction must be met. What is meant by the words 'easement or right of way'? Are the words 'right of way' synonymous with the alternative of the term 'easement,' or do they mean two different things? Technically and strictly, a 'way' is the passage over the lands of another; 'right of way' is the right to use this passage. Williams v. Railway Co., 50 Wis. 71, 5 N.W. 482; 21 Am. & Eng.Enc.Law, 405. The position taken by the defendant is very nice and ingenious. It does not create conviction of its soundness; yet it is most difficult to answer. Popularly speaking, the right of way of a railroad company-- that which is understood when the term is used-- is the track, and that part of land on each side of it, used and possessed for the purpose of passing through the country from one point to another. Anderson, in his Law Dictionary, says:

'By

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