Va. & C. S. R. Co v. Mclean Et Ux

• Decision Date: 03 April 1912
• Citation: 138 N.C. 498,74 S.E. 461
• Court: North Carolina Supreme Court
• Parties: VIRGINIA & C. S. R. CO. v. McLEAN et ux.

74 S.E. 461

(138 N.C. 498)

VIRGINIA & C. S. R. CO.

v.McLEAN et ux.

Supreme Court of North Carolina.

April 3, 1912.

Eminent Domain (§ 131*)—Condemnation Proceedings—Damages.

Parties whose land had been condemned for a railroad right of way were entitled to recover, as an element of their damages, the market value of the land taken.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 353; Dec. Dig. § 131.*]

Appeal from Superior Court, Cumberland County; Whedbee, Judge.

Action by the Virginia & Carolina Southern Railroad Company against Marshall McLean and wife. From judgment for defendants, plaintiff appeals. Affirmed.

The following issue was submitted and answered by the jury: "What damages are defendants entitled to recover of plaintiff on account of the condemnation and appropriation of the 3.12 acres of land described in the petition filed in this cause?" Answer: "$462.50." Judgment on the verdict for the amount and condemning the land in question "as a perpetual right of way for plaintiff company, to be used for railroad purposes and for such other purposes as may be permitted by statute, " etc. Plaintiff, having duly excepted, appealed, and assigns and urges here for error the following direction with others given by the court as a rule for estimating the damages: "That in assessing the damages which the defendants may be en titled to you will allow the defendants the actual market value of the 3.10 acres covered by the right of way that the plaintiff seeks to condemn, as described in the petition."

McLean, Varser & McLean and H. L. Cook, for appellant.

Shaw & McLean and Sinclair & Dye, for appellees.

HOKE, J. Under the general law (Rev. § 2575 et seq.) and ordinarily under special statutes applicable, only an easement passes to the railroad under condemnation proceedings, and that and the effect of it is the interest usually involved in such an inquiry. In section 2587, the one which more especially refers to the judgment in these cases and the vesting of the title, the determinative language is: "And on the payment by said company of the sum adjudged, together with the costs and counsel fees allowed by the court in the office of the clerk, then and in that event all persons, who had been made parties to the proceedings, shall be divested and barred of all right, estate, and interest in such easement in such real estate during the corporate existence of the company aforesaid, " and this view has very generally prevailed with us. Parks v. Railroad, 143 N. C. 289, 55 S. E. 701, 12 L. R. A. (N. S.) 680; Railroad v. Sturgeon, 120 N. C. 225, 26 S. E. 779. In practical application of this principle the court has held that to the extent that the right of way is not presently required for the purposes of the road it may he occupied and used by the original owner in any manner not inconsistent with the easement acquired (Lumber Co. v. Hines Bros., 126 N. C. 254, 35 S. E. 458), a position that finds support in a line of cases which hold that for any additional burden put upon the right of way not properly embraced in the general purposes for which condemnation was had the compensation shall accrue to the owner and not to the company (Brown v. Power Co., 140 N. C. 333, 52 S. E. 954, 3 E. R. A. [N. S.] 912; Hodges v. Telegraph Co., 133 N. C. 225, 45 S. E. 572); and it has been further decided that this right of way, when once acquired, may be occupied and used by the company to its full extent, whenever the proper management and business necessities of the road may require and the company is made the judge of such necessity (Railroad v. Olive, 142 N. C. 257-275, 55 S. E. 263). The easement then and itseffect on the property being the question involved, the law aims at making the owner a "just compensation" for the injuries likely to arise from the imposition of such a burden upon the land. The statute so requires, and, stated in a general way, the rule is to "award the owner the difference in the market value of the whole lot or tract...