Raleigh & Augusta Air Line R. R. Co. v. Wicker

• Decision Date: 31 January 1876
• Citation: 74 N.C. 220
• Court: North Carolina Supreme Court
• Parties: RALEIGH & AUGUSTA AIR LINE R. R. CO. v. J. J. WICKER and others.

74 N.C. 220

RALEIGH & AUGUSTA AIR LINE R. R. CO.

v.J. J. WICKER and others.

Supreme Court of North Carolina.

January Term, 1876.

The rule for the assessment of damages to lands taken for railroad purposes, with regard to the benefit to the land arising from the construction of the road, as settled in this State, is: The jury shall not deduct from, or set off against, the damages special to the land, a part of which is taken, any benefits arising from the railroad under construction, which are common to the owner and all other persons in the vicinity; but may deduct or set off any benefit peculiar to the land.

The owner is entitled to recover, for the expense of any additional fencing of cultivated lands, made necessary by reason of the construction of the road; but as he is not required by law to fence uncleared or uncultivated land, and the expense of fencing such, should it at any future time be cleared or cultivated, is too remote and uncertain to be estimated, the same should not be taken into consideration.

If by the construction of the road, water be ponded upon the land?? the owner may recover damages, if the ponding be the result of the obstruction of a natural or artificial drain way; otherwise, if the ponding be the result of an alteration of the previous grade of the land, caused by the construction of the road bed.

The danger that the cars of the railroad company may injure the cattle of the land owner without negligence, is not peculiar to the land owner, a part of whose land is taken, but common to all who own cattle near the line of the road; and as the owner is not required to abate the damages to his land, on account of any benefit he may derive from the road in common with adjacent land owners, ??e is not entitled to be compensated for any damages which are in like manner common.

( Freedle v. N. C. R. R. Co, 3 Jones, 89; State v. Kreble, 64 N. C. Rep., 604, cited and approved.)

This was a SPECIAL PROCEEDING tried upon appeal from the award of commissioners appointed to assess the damages arising from the construction of the road of the plaintiff through the lands of the defendant, before Buxton J, at Spring Term, 1875, of the Superior Court of MOORE county.

Commissioners were appointed upon the petition of the plaintiff to assess the damages arising from the construction of the plaintiff's road bed through the lands of the defendant. The damages were assessed at the sum of four hundred dollars, and the plaintiff objected to the finding of the Commissioners on the ground that the damages assessed were excessive; the objection being overruled the plaintiff appealed.

When the case was called for trial, all irregularities were waived and the only question submitted to the jury was as to the amount of damages.

The plaintiff is a corporation originally chartered under the name of “The Chatham Railroad Company.” By a subsequent statute, chap. 11, acts of 1871-'72, the name was changed to “The Raleigh and Augusta Air Line Railroad Company.”

By an act amending the charter of the Chatham Railroad Company (Private Acts 1862-'63, chap. 26, sec. 7) it is provided that in making the valuation, the said commissioners shall take into consideration the loss or damage which may accrue to the owner or owners in consequence of the land or right of way being surrendered, and the benefit or advantage he, she or they may receive from the erection or establishment of the railroad or works, and shall state particularly the value and amount of each, and the excess of loss or damage over and above the advantage and benefit shall form the measure of the valuation of said land or right of way.

In Bat. Rev. chap. 99, sec. 15, entitled “Railroad Companies” the rule of compensation is stated differently, it being provided “in determining the amount of such compensation, they (the commissioners) shall not make any allowance or deduction on account of any real or supposed benefit which the parties in interest may derive from the construction of the proposed railroad.”

Preliminary to the introduction of evidence, the question was raised which rule of damages shall be adopted in this case? The court held that the rule laid down in the charter should be adopted.

It was in evidence that the plantation of the defendant consisted of two hundred and seventy-five acres of land, valued by the several witnesses at prices ranging from $5 to $8 per acre. The bed of the road upon the defendant's land is two-thirds of a mile in length, and the land condemned for the use of the road covers about sixteen acres. The track runs within about a quarter of a mile of the defendant's house. About two-thirds of the road runs through old fields and gullies, not fit for cultivation, and a small part thereof through valuable meadow lands worth ten dollars per acre.

Owing to the gullies and ravines and also to the excavations and embankments of the road, there are three crossing places, one of these is the public county road, which by reason of an excavation has been changed from a direct line, requiring a detour of fifty yards down the track and fifty yards back instead of crossing directly over the road in its original course. Owing to insufficient culverts, water is sometimes ponded on two or three acres of the defendants' land. The crossing near the dwelling used to be good. It is interrupted now. In running through the orchard a row containing twelve apple trees was buried to the height of two or three feet. Waste dirt from one to two feet in depth, and piles of rock from one to nine feet high are scattered along the line of the road, off the condemned land, and upon the plantation of the defendant.

There was a great diversity of opinion among the witnesses as to the amount of damage sustained by the defendant. There was much evidence as to the advantages and disadvantages arising from the construction of the road.

His Honor charged the jury:

That the enquiry for them to make was: how much more was the land of the defendant damaged than benefitted by this railroad crossing it. In considering this question the jury are to remember that railroads were useful enterprises, promotive of public good, sanctioned by law, and authorized to enter upon the land of the citizens: so that there was nothing wrong or in the nature of trespass in the act of entry by this company. The object of this proceeding was to compensate the owner for the damage necessarily sustained. In making their estimate the jury should not take into consideration any mere fancied injury or benefit, or remote probability of advantage or disadvantage; they were to consider the direct consequences necessarily resulting from the railroad passing through the farm, not the remote speculative or contingent damage. For instance, they might take in consideration the circumstances mentioned in evidence, that about sixteen acres were appropriated for the track--the increased fencing required--the ponding of water on the land, the space occupied by waste dirt and rock, the inconvenience occasioned by obstructing the passage from one part of the farm to another, and the liability to injury to which the stock on the farm would be exposed. These were consequences flowing directly from the passage of the road through the farm and tended to render it less valuable. On the other hand the jury would reject from their consideration such circumstances as the worry of mind, or possible pillage of fruit, or other depredations apprehended by counsel in their argument, from railroad hands.

To the charge of his Honor the plaintiff excepted.

The jury rendered a verdict in favor of the defendant, assessing the damages at $450.

Thereupon the plaintiff moved the court for a new trial, on account of error in the charge of his Honor, in including among the circumstances which the jury might properly consider, as depreciating the value of the land, “the liability to injury to which the stock on the farm would be exposed.”

The motion was overruled and the plaintiff appealed.Manning, for the appellant .

Neill McKay, contra .

RODMAN, J.

I. The Judge below was of opinion that the rule for the measure of damages to an owner of land condemned for the use of the railroad, prescribed in the charter of the company, (Private Acts 1862-'63, chap. 26, sec. 7,) was different from, and controlled, that prescribed by the general law, (Bat. Rev., chap. 99, sec. 16,) and he directed the jury in assessing the damages, to consider and deduct therefrom the benefits of the road to the defendant's land. This opinion of the Judge was adverse to the defendant, and as he has not appealed, no question upon it comes to u...