Thompson v. Seaboard Air Line R. Co.

• Citation: 248 N.C. 577,104 S.E.2d 181
• Decision Date: 30 June 1958
• Docket Number: No. 463,463
• Parties: Bryant N. THOMPSON and wife, Mae M. Thompson, v. SEABOARD AIR LINE RAILROAD COMPANY.
• Court: North Carolina Supreme Court

Page 181

104 S.E.2d 181

248 N.C. 577

Bryant N. THOMPSON and wife, Mae M. Thompson, v. SEABOARD AIR LINE RAILROAD COMPANY.

No. 463

Supreme Court of North Carolina.

June 30, 1958

Douglass & McMillan, Raleigh, and Jones & Jones, Rockingham, for plaintiff appellees.

Bynum & Bynum, Rockingham, and Varser, McIntyre, Henry & Hedgepeth, Lumberton, for defendant appellant.

RODMAN, Justice.

While defendant brings forward 130 assignments of error, we think the basic question involved is presented by three of these assignments: (1) Permitting the amendment to the complaint after the presentation of the evidence; (2) the motion to nonsuit; and (3) the court's instruction to the jury to answer the first issue in the affirmative.

A trial court may permit a pleading to be amended at any time unless the amendment in effect modifies or changes the cause of action and deprives defendant of a fair opportunity to assemble and present his evidence relative to the matters asserted in the amendment. G.S. § 1-163.

To determine the materiality of the amendment we examine the pleadings without the amendment to ascertain what issues arise on the pleadings. If the issues raised by the amended pleadings assert a different right of action presenting different issues, then the amendment is material, and defendant is entitled to an opportunity to prepare its defense and offer evidence on the issue so raised. Did the phrase 'and for the use and benefit of the defendant,' inserted in section 9 of the complaint add anything to the invasion of plaintiffs' rights as originally asserted? The answer to the question is found in the law which determines the motion to nonsuit and the propriety of the instructions with respect to the first issue.

What wrongful act was charged in the complaint and what defense did defendant assert? The basis of asserted liability is found in section 7 of the complaint. It alleges defendant took possession of two public streets in Hamlet on which plaintiff's property abutted and, by fills in these streets, denied plaintiffs access thereto. Defendant denied this allegation. The denial raised two questions: (a) were the areas public streets, and (b) did defendant make the fill? In addition and as an affirmative defense it asserted that the fill was made on its right of way in the lawful use of its property and in providing facilities for the public to cross its tracks.

When the case came to trial the parties by stipulation eliminated issues originally raised (a) as to plaintiffs' title to the area for which plaintiffs assert a right to recover, (b) the location of the line separating the right of way from the land owned absolutely by plaintiffs, (c) the nature of the area which plaintiff designated as Bridges Street, defendant conceding that it was a public way although established after the railroad was constructed, (d) that no liability existed for work done in the area designated as Railroad Street (presumably for the reason that it was not a public street but a way used with the permission of the railroad which it could terminate at any time.) The stipulation which the parties made reduced the issues touching liability raised by the complaint as originally drafted to this fundamental question: Did defendant change the grade of the street abutting plaintiffs' property outside and beyond the right of way? Viewed in the light of the stipulation, plaintiffs' claim, and the court's charge, this was the issue submitted to and answered by the jury.

The fact that the grade of Bridges Street was changed from a point south of the new wye to a point northwardly and outside of the right of way and across the front of plaintiffs' property is not controverted; nor is it controverted that the work was done by a contractor secured and paid by defendant.

Defendant insists that these admitted facts do not establish liability because (1) it had the right to make such fills on its right of way as it deemed appropriate in the conduct of its business; (2) in the exercise of its rights it could change the grade at Bridges Street within the bounds of its right of way; (3) the change in the elevation of Bridges Street within the right of way necessitated a change in the elevation beyond the right of way if the public was not to be deprived of the use of Bridges Street where it crossed the right of way; (4) the town had the right to change the grade of the street for public benefit and as it authorized or permitted defendant to change the grade, the permission so granted immunized defendant from liability.

An analysis of defendant's position is necessary to pass on its assignments of error. Legal principles pertinent to the questions raised are, we think, well settled.

Defendant had a right to change the elevation of different portions of its right of way to suit its convenience. No liability exists for such changes. Brinkley v. Southern R. R. Co., 135 N.C. 654, 47 S.E. 791. That right is not here controverted.

Control of public ways (highways, streets, and navigable waters) is vested in the sovereign, the State, and subject to constitutional limitations, the Legislature may regulate the location, width, elevation, and use of these ways. Clayton v. Liggett & Meyers Tobacco Co., 225 N.C. 563, 35 S.E.2d 691; F. S. Royster Guano Co. v. Lumber Co., 168 N.C. 337, 84 S.E. 346; Dalton v. George C. Brown & Co., 159 N.C. 175, 75 S.E. 40; Butler v. F. R. Penn Tobacco Co., 152 N.C. 416, 68 S.E. 12; Elizabeth City v. Banks, 150 N.C. 407, 64 S.E. 189, 22 L.R.A.,N.S., 925; State v. Yopp, 97 N.C. 477, 2 S.E. 458. The Legislature, in the exercise of its discretion, may delegate to a municipality or other agency its power to regulate and control for public use streets and highways. Victory Cab Co. v. Shaw, 232 N.C. 138, 59 S.E.2d 573; Suddreth v. Charlotte, 223 N.C. 630, 27 S.E.2d 650. The Legislature has authorized municipalities to control streets with the right to 'make such improvements thereon as it may deem best for public good * * * and regulate, control, license, prohibit, and prevent digging in said street * * *' G.S. § 160-222.

When a city acts for public convenience under the authority granted it by the Legislature and raises or lowers the grade of a street, any diminution of access by an abutting property owner is damnum absque injuria. The abutting property owner can neither prevent the change by injunction nor recover damages for the diminished value of his property, when the work is done in conformity with plans designed to promote public convenience. Sanders v. Atlantic Coast Line R. R. Co., 216 N.C. 312, 4 S.E.2d 902; Jenkins v. Henderson, 214 N.C. 244, 199 S.E. 37; Calhoun v. State Highway Com'r, 208 N.C. 424, 181 S.E. 271; Wood v. Duke Land & Improvement Co., 165 N.C. 367, 81 S.E. 422; Jones v. Henderson, 147 N.C. 120, 60 S.E. 894; Tate v. Greensboro, 114 N.C. 392, 19 S.E. 767, 24 L.R.A. 671; Wright v. Wilmington, 92 N.C. 156, 160; Meares v. Wilmington, 31 N.C. 73; 18 Am.Jur. 841, 842.

The fact that Bridges Street, where it crossed defendant's right of way, was established subsequent to the location and construction of the railroad did not diminish its character as a public way. The railroad, after the street was established had no more right to impair or prevent its use than any other property owner would have to change the grade or interfere with the use of a street constructed by a city over his land. Presumably the railroad was duly compensated for the impairment of its property rights when the street was established. Atlantic Coast Line R. R. v. Goldsboro, 155 N.C. 356, 71 S.E. 514.

Legislative sanction is necessary before a railroad may occupy a public way. Edmonds v. Baltimore & P. R. R. Co., 114 U.S. 453, 5 S.Ct. 1098, 29 L.Ed. 216; Butler v. F. R. Penn. Tobacco Co., supra; Corporation Comm. v. Southern R. R., 153 N.C. 559, 69 S.E. 621; Pedrick v. Raleigh & P. S. R. R. Co., 143 N.C. 485, 55 S.E. 877, 10 L.R.A.,N.S. 554; 44 Am.Jur. 301, 74 C.J.S. Railroads § 104, pp. 512-513. Because of the benefit accruing to the public in the operation of railroads, the Legislature has granted to them the power to condemn private property, G.S. § 60-37(2), and to construct their roads across public ways, but with the mandate to 'restore the * * street * * * thus intersected or touched, to its former state or to such state as not unnecessarily to have impaired its usefulness.' G.S. § 60-37(6). This provision is supplemented by G.S. § 60-43 which again commands railroads, when crossing established roads, to 'so construct its works as not to impede the passage or transportation of persons or property along the same.' This provision, inserted in the Act of 1852 incorporating the Western Railroad, was codified as a part of the public laws of the State in the Revised Code, c. 61, sec. 30. Similar provisions are to be found in the charters issued by the Legislature to railroads during the early part of the nineteenth century.

Notwithstanding the legislative authority and municipal approval for a public service corporation to use a street or highway if the use is such as to impose an additional burden or effect a taking of the property of an abutting owner, compensation must be paid.

Where a railroad accepts the benefits of statutory authorization and changes the grade of a street or highway it must assume and comply with the burden imposed and restore the street to a useful condition. If, to meet the burden so imposed, it becomes necessary to go beyond the railroad right of way and change the grade of a street, thereby impairing access of an abutting property owner, compensation must be paid for the diminution in value resulting from the denial of access.

The rule has been repeatedly applied to situations factually similar to this case. Powell v. Seaboard Air Line R. R. Co., 178 N.C. 243, 100 S.E. 424; Bennett Winston-Salem Southbound R. R. Co., 170 N.C. 389, 87 S.E. 133, L.R.A.1916D, 1074; Kirkpatrick v. Piedmont Traction Co., ...