State v. Rives

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: State v. Rives, 5 Ired. 297, 27 N.C. 297 (N.C. 1844)
• Decision Date: 31 December 1844
• Parties: THE STATE v. FRANCIS E. RIVES.

5 Ired. 297

27 N.C. 297

THE STATE

v.FRANCIS E. RIVES.

Supreme Court of North Carolina.

December Term, 1844.

When an act, incorporating a Rail Road Company, declares that after the assessment and payment of the damages for the land, to be used for the construction of the road, the company may enter upon the said land, &c., “and hold the said land to their own use and benefit for the purpose of preserving and keeping said rail road during the continuance of their corporate existence” (sixty years;) “and in all things to have the same power and authority over said land so laid off, during their existence as a corporation under the laws of this State, as though they owned the fee simple therein”; Held that, by this clause, the corporation, after assessment and payment of damages, became the tenant of the land, as the owner of the legal estate for the term of sixty years, subject to the earlier determination of the corporation from any cause.

Held further, that the provision in this section, that the said company “shall hold the said land for the purpose of preserving and keeping up the road,” does not make a condition, upon the performance of which their estate depends, but these words only assign the reason, why the law vests the estate in the corporation.

From the nature of things, as for instance, from the absolute necessity of giving such a corporation a right to trespass Q. C. F. or ejectment, to protect its enjoyment of the road, it follows that an estate must be vested in the corporation, unless it be clear that the contrary was intended.

And such interest in the land may be sold under an execution against the corporation, although the corporate franchise itself cannot be sold under an execution.

The right of transporting persons or things over the land of another for toll is but an easement united with a franchise, and is not distinguishable from other franchises.

A Rail Road corporation is not dissolved by the sale of its road.

Only the real estate, which remains in a corporation at the moment of its dissolution, reverts to the original proprietors--what has been divested out of the corporation by its own act or the act of the law does not so revert.

Land, therefore, which has been vested in a Rail Road Company for the use of the road, if sold by execution, belongs to the purchaser until the charter of the company would by the limitation of its charter have expired.

A Rail Road is not in all respects a highway publici juris, but it is the subject of private property, and in that character is liable to be sold, unless the sale be forbidden by the legislature; not the franchise, but the land itself constituting the road.

The case of the Raleigh and Gaston Rail Road Company v. Davis, 2 Dev. & Bat. 451, cited and commented on.

Appeal from the Superior Court of Law of Northampton County, at the Spring Term, 1844, his Honor Judge PEARSON presiding.

The defendant was tried upon an indictment containing two counts; one under the seventh section of the act of 1832, incorporating the Portsmouth and Roanoke Rail Road Company, (Rev. Stat. 2 vol. p. 311) which provides that “if any person shall wilfully injure, impair or destroy, or cause to be injured or impaired any part of the said rail road,” &c., he “shall be subject to indictment” in either the County or Superior Court, and “upon conviction shall be punished,” &c. The other count was at common law for obstructing a public highway, meaning the said Portsmouth and Roanoke Rail Road. The defendant pleaded not guilty--and the following case agreed was submitted to the court.

Spier Whitaker, Esq., the Attorney General, who in this behalf prosecutes for the State, and the said Francis E. Rives, agree to submit and do hereby submit the above issue to the judgment of the court upon the following state of facts.

At the fall term, 1842, of Halifax Superior Court, Clement Rochelle and Henning T. Smith recovered against the Portsmouth and Roanoke Rail Road Company a judgment, for the sum of sixteen thousand eight hundred and forty-six 80-100 dollars, with interest on sixteen thousand one hundred and eighty dollars and ninety-eight cents from the 24th October, 1842, and the sum of eight dollars and fifty cents for cost. Under the fi. fa. to the Sheriff of Northampton, issuing on this judgment and returnable to Fall Term, 1843, he went to and upon the road at Garysburg and declared his levy, which was as follows: “Levied on the Portsmouth and Roanoke Rail Road from Roanoke to the depot at Margarettsville and Concord depots, together with the land on which they are placed.

E. J. PEEBLES, Sheriff.”

And that he did nothing but this towards making a levy. When he sold, he sold at the road, near Garysburg, and was on the road itself, but although he sold the whole, yet he did not take up and, by manual delivery, deliver to the purchaser, C. Rochelle, any part of the structure of the road, either rails, iron or other materials in the name of the whole--nor did he either then, or at the time of the levy, pass along and see the whole line of the said road or any part thereof, except what was visible at the place where the sale was made. When the sale was concluded, the sheriff said to Rochelle, “the property was his.” The President of the Portsmouth and Roanoke Rail Road Company was present at the sale, and had knowledge of Rochelle's purchase. Shortly after his purchase, Rochelle notified the company thereof, and some attempted arrangement with the company having failed, Rochelle sold and assigned his bid to the said Francis E. Rives, who, on the first day of December, 1843, obtained a deed from the sheriff. The said Rives then made a proposition to the Company for an adjustment of his claim, but the parties not being able to agree, and the company having decided that not any thing passed under the said sheriff's sale, and their counsel having given an opinion to this effect, the said Rives submitted his case to counsel in this State, and to eminent counsel in Virginia, and was advised that, under his purchase, he had a clear right to enter on the line of the rail road, and take up and remove the rails, iron and other materials of the structure. The said road was composed of wooden rails, with bars of iron spiked to them, and the rails were inserted into transverse sills partly imbedded in the soil. The said Rives, acting under the advice which he had received, on the 6th day of January, 1844, went upon the line of the said road, and caused certain portions of the iron, rails and sills thereof, near Margarettsville, in the county of Northampton, and between that place and the bridge at Weldon, to be taken up and removed--thereby making a breach in the track of the said road, so as to prevent the passage of the usual train of cars on the said day, and the two succeeding days.

The taking up and removing of the rails, &c. was commenced early in the morning of the 6th of January, near Margarettsville, at which there is a regular watering and wood station, and within sight thereof. Soon after commencing the removal, the agent of the defendant, who was superintending the same under instructions from the defendant, made known to the company at Margarettsville, that he was taking up the rails, &c. and that he desired him to inform the captain or engineer of the train, in order that he should not attempt to pass that station, and desired he would be particular in giving the notice, as the defendant did not wish any accident to occur; and with this request the agent of the company promised to comply. The train from Portsmouth, to which this communication referred, was not expected to arrive until the afternoon of the day, and there was no train at Weldon.

From the time of the sale to Rochelle, up to the said 6th of January, the said company used the portion of the Rail Road from Margarettsville to Weldon, as they had done before the said sale. The distance from Garysburg to Margarettsville, is about fifteen miles.

If, upon the foregoing facts, the court shall be of opinion that the defendant is guilty upon either of the counts in the indictment, judgment is to be entered against him accordingly; otherwise judgment is to be for the defendant.

S. Whitaker, Attorney General .

Thos. Bragg, Jun'r. for defendant .

The presiding Judge delivered the following opinion and judgment:

This case turns upon the question, whether the Rail Road, which has been obstructed, is a public highway, for if it be a public highway, it is indictable to obstruct it, as well when the obstruction is made by the company or by one succeeding by purchase to the rights of the company, as where it is made by a third person. That the road is a public highway, I consider settled by the case of the Raleigh and Gaston Rail Road Company v. Davis. The right of the Legislature to condemn private property for the purposes of the road; as the land on which it runs, the wood, stone, gravel, and earth required for its construction and repair, can only be derived from the facts, that the road is for the public benefit, and is to be used as a public highway. To consider the road as mere private property is to suppose, that the Legislature has taken the property of certain citizens without their consent, and vested that property in certain other citizens for their individual benefit, whereas, to consider it a public highway with certain incidental private interests, fully sustains the authority of the Legislature to make the condemnation. It is a principle of the common law, which expands and adapts itself to new cases, as they arise--that wherever the public has a right and that right is invaded, the offender is liable to indictment, and in the case of a Rail Road, constructed, like the one under consideration, by a joint stock company, although the company has a private interest, that interest is incidental and secondary, and must be enjoyed so as not to defeat the paramount object, and one which is essential to...