{ "id": 11269924, "name": "FESTUS BEASLEY v. ABERDEEN AND ROCKFISH RAILROAD COMPANY", "name_abbreviation": "Beasley v. Aberdeen & Rockfish Railroad", "decision_date": "1908-04-15", "docket_number": "", "first_page": "362", "last_page": "367", "citations": [ { "type": "official", "cite": "147 N.C. 362" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "124 N. C., 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657567 ], "opinion_index": 0, "case_paths": [ "/nc/124/0037-01" ] }, { "cite": "129 N. C., 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659080 ], "opinion_index": 0, "case_paths": [ "/nc/129/0099-01" ] }, { "cite": "140 N. C., 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652223 ], "opinion_index": 0, "case_paths": [ "/nc/140/0422-01" ] }, { "cite": "118 N. C., 996", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654478 ], "opinion_index": 0, "case_paths": [ "/nc/118/0996-01" ] }, { "cite": "119 N. C., 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655935 ], "opinion_index": 0, "case_paths": [ "/nc/119/0677-01" ] }, { "cite": "120 N. C., 502", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "126 N. C., 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660934 ], "opinion_index": 0, "case_paths": [ "/nc/126/0509-01" ] }, { "cite": "139 N. C., 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652622 ], "opinion_index": 0, "case_paths": [ "/nc/139/0366-01" ] }, { "cite": "131 N. C., 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662301 ], "opinion_index": 0, "case_paths": [ "/nc/131/0623-01" ] }, { "cite": "95 N. C., 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273032 ], "opinion_index": 0, "case_paths": [ "/nc/95/0077-01" ] }, { "cite": "67 N. C., 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092665 ], "opinion_index": 0, "case_paths": [ "/nc/67/0278-01" ] } ], "analysis": { "cardinality": 500, "char_count": 10927, "ocr_confidence": 0.448, "pagerank": { "raw": 2.394652362204266e-07, "percentile": 0.798247310943611 }, "sha256": "2ea86102d79ef28ea4b5d4473e220948f71f6d8128766069e98ffbb4be9d4429", "simhash": "1:47dfd4f1f35acdd8", "word_count": 1856 }, "last_updated": "2023-07-14T19:43:12.008409+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FESTUS BEASLEY v. ABERDEEN AND ROCKFISH RAILROAD COMPANY." ], "opinions": [ { "text": "Hoke, J.,\nafter stating the facts: Where a railroad corporation has entered on the land of another and constructed its road and is operating same, and, having the power of eminent domain, has not exceeded the ultimate rights of appropriation contained in the power nor violated the restrictions imposed upon it by its charter or the general law, such company cannot be ousted from the land by action of ejectment instituted by tbe owner nor subjected to successive and repeated actions of trespass by reason of tbe user and occupation of tbe property. If tbe damages sought would necessarily be included in an assessment in condemnation proceedings regularly bad, tbe. owner must pursue tbe statutory method of redress provided either by tbe charter or under tbe general law, if such method is open to him as well as tbe company. This has' been uniformly held with us. McIntire v. Railroad, 67 N. C., 278; Railroad v. Ely, 95 N. C., 77; Dargan v. Railroad, 131 N. C., 623. And if tbe injuries complained of amount to an invasion of tbe proprietary rights of tbe owner not covered by such assessment, the wrong must under tbe present law be redressed by tbe .award of permanent damages. Stack v. Railroad Co., 139 N. C., 366; Lassiter v. Railroad Co., 126 N. C., 509; Beach v. Railroad Co., 120 N. C., 502.\nThis, we think, is tbe correct interpretation.of tbe statute on tbe subject enacted in 1895, chapter 224, and brought forward in tbe Revisal, sec. 394, as follows: \u201c2. No suit, action or proceeding shall be brought or maintained against any railroad company by any person for damages caused by tbe construction of said road, or tbe repairs thereto, unless such suit, action or proceeding shall be commenced within five years after tbe cause of action accrues, and tbe jury shall assess tbe entire amount of damages which tbe party aggrieved is entitled to recover by reason of tbe trespass on his property.\u201d Prior to tbe enactment of this statute, when an injury was caused by a structure permanent in its character, erected and maintained in tbe exercise and furtherance of its chartered rights and duties by a quasi public corporation having tbe power of eminent domain, in an action to recover for such injury an award of permanent damages could be required at the instance of either party to the controversy. Parker v. Railroad, 119 N. C., 677; Ridley v. Railroad, 118 N. C., 996. And in the case of railroads the statute referred to has made this course compulsory. Cherry v. Canal Co., 140 N. C., 422. The court, therefore, very properly framed and submitted .an issue addressed to the question of permanent damages. While the privilege and duty of suggesting such issues as they consider relevant and necessary may in the first instance rest with the parties litigant, it is the duty of the court always to see that the proper issues material and determinative of the question involved in the litigation are submitted and responded to by the jury. Strauss v. Wilmington, 129 N. C., 99. And this issue as to' permanent damages being the one required by the statute as determinative, the issue tendered by plaintiff was properly rejected and that for permanent damages substituted.\nThese damages, then, having been ascertained 'and established, judgment should have been entered in plaintiff\u2019s favor for the whole amount of the recovery on both issues. Eor, while as a rule the term \u201cpermanent damages\u201d signifies the entire injury done to the property and would ordinarily include damages'for such wrong, past, present and prospective, if it appears that in ascertaining the amount these items have as a matter of fact been divided and determined on separate issues, as in this instance, the verdict will not on that account be disturbed, but judgment entered for the whole sum. Ridley v. Railroad, 124 N. C., 37.\n\u25a0 Eor the purpose of this action a judgment may be properly defined as the conclusion of the law on the facts regularly and properly established in the course of a judicial proceeding. And, these facts having been established by the verdict, the judgment should be entered on the facts as found, for we do not understand or interpret the statement in the judgment, \u201cThat plaintiff did not ask for judgment on the issue as to permanent .damages,\u201d to mean that plaintiff intended to enter a retraxit as to such amount, but simply that he desired to test his right to maintain successive actions for his alleged grievance. In permitting a recovery on this judgment we must not be understood as holding that in a claim for damages, which, would be certainly and necessarily included in an award in condemnation proceedings, .any other than the statutory method of redress is open to the proprietor. Eor, as stated, our authorities are clearly to the contrary. But in the present instance, as the question was not raised by defendant and it does not of a certainty appear but that other elements of damage may have been considered, we have determined to allow and direct that judgment be entered for plaintiff for the entire amount of his recovery on both issues, and it is so ordered.\nLet this be certified, that judgment be entered on the verdict in plaintiff\u2019s favor for $5(L The costs of the appeal will be taxed against the appellant.\nModified and Affirmed.", "type": "majority", "author": "Hoke, J.," } ], "attorneys": [ "Sinclair & Dye and J. Spruni Newton for plaintiff.", "Robinson & Shaw for defendant." ], "corrections": "", "head_matter": "FESTUS BEASLEY v. ABERDEEN AND ROCKFISH RAILROAD COMPANY.\n(Filed 15 April, 1908).\n1. Railroads \u2014 Rights\u2014Owner of Fee \u2014 Ouster.\nA railroad company, which has entered on the lands of another and constructed its road, cannot be ousted by the owner of the land or stayed in operating its railroad thereon, when such is being done in pursuance of the power and authority contained in its charter and rightfully exercised under the general law applicable.\n2. Railroads \u2014 Charter Rights \u2014 Condemnation Proceedings \u2014 Damages \u2014 Statutory Methods.\nWhen the damages sought by the owner of the land against a railroad company \u2022 using the same for railroad purposes authorized under its charter and in accordance with law would necessarily be included in an assessment in condemnation proceedings under a statute, the statutory method of redress provided either by the charter or under the general law must be followed, if open to him as well as the railroad company.\n3. Same \u2014 Wrong Invasion \u2014 Permanent Damages \u2014 Statute.\nWhen a railroad company is acting within its lawful rights in operating its road, but unlawfully goes upon or invades the proprietary rights of the owner of the land in so doing, the wrong . must, under the present law (Revisal, sec. 394), be redressed by the award of permanent damages.\n4. Same \u2014 Issues.\nIn an action brought against a railroad company by the owner on account of its wrongful invasion of his land by taking the same for railroad purposes the court should submit an issue as to permanent damages, this being the proper method of adjustment now required by the statute (Revisal, sec. 394).\n5. Damages, Permanent, Include What \u2014 Separate , Issues.\nAs a rule, the term \u201cpermanent damages\u201d includes those for the entire injury done to the property, present, past and prospective; but when the issues have been divided and answered by the jury, so that one relates to past and the other to present and prospective, the amounts may be added together and a judgment awarded for the permanent damages recoverable.\n6. Same \u2014 Successive Actions \u2014 Retraxit.\nWhen it appears from the record that \u201cplaintiff did not ask for judgment on the issue as to permanent damages,\u201d and this did not evidence his intention to enter a retraxit as to such, but simply that he desired to test his right to maintain successive actions for his alleged wrong, a judgment for permanent damages upon the award of the jury should have been rendered.\nAction tried before Long, J., and a jury, at February Term, 1908, of Cumberland.\nPlaintiff alleged and offered evidence tending to show that he was the owner and in possession of a tract of land on either side of defendant railroad company\u2019s and including same within its boundaries; that about three years ago, a short while before the institution of this suit, defendant entered on the-land of plaintiff and constructed its railroad and has since been operating same; that defendant has the power of eminent domain granted to it by its charter, but has never acquired a right of way by condemning the land under such power, but that it entered, built and is operating the road along an old right of way formerly acquired and used by a corporation known as the Enterprise and Improvement Company, which had the power and had acquired the right to operate a tramway (see former opinion in Beasley v. Railroad, 145 N. 0., p.' 272) ; that the construction and operation of said road caused damage to plaintiff\u2019s land, to recover which this action is brought.\nDefendant admitted having constructed its road along the right of way of the said Enterprise and Improvement Company, claimed the right to do so, and made denial as to the other allegations, of the complaint. When the cause was called for trial the'plaintiff tendered an issue: \u201cWhat damage, if any, is plaintiff entitled to recover of defendant for the wrongful and unlawful acts of defendant complained, of ?\u201d and excepted to the court\u2019s refusal to submit the issue. The court submitted issues, and the verdict thereon was as follows:\n\u201c1. Is the plaintiff the owner of the slip of land referred to in the complaint and as alleged in the complaint ?\u201d Answer: \u201cYes.\u201d\n\u201c2. What damage, if any, is the plaintiff entitled to recover of the defendant for alleged wrongful trespasses up to the time of this trial?\u201d Answer: \u201cTen dollars.\u201d\n\u201c3. What permanent damages, if any, have been done to the plaintiff\u2019s land by the defendant in running its tracks and permanently using a portion of the plaintiff\u2019s land for its alleged right of way?\u201d Answer: \u201cForty dollars.\u201d\nOn the verdict and facts otherwise stated the court rendered judgment as follows:\n\u201cThe jury having responded to the issues as they appear of record in favor of the plaintiff upon the first and second issues, and having ascertained his damages for trespasses alleged in his complaint up to the time of trial to be $10, it is now, upon motion of counsel, considered and adjudged that the plaintiff recover of the defendant said sum and the costs of the action, to be taxed by the Clerk.\u201d\nThe plaintiff stated that he-did not ask for judgment upon the third issue for permanent damages. As that issue had been asked for by the defendant, his Honor submitted it in deference to the opinion of Justice, Connor, on file, having been requested to do SO' by defendant\u2019s counsel. The court submitted the issue, but as the plaintiff\u2019s complaint did not ask this relief and as defendant\u2019s answer did not ask for this relief the court declined to sign judgment on the third issue. Plaintiff excepted and appealed.\nSinclair & Dye and J. Spruni Newton for plaintiff.\nRobinson & Shaw for defendant." }, "file_name": "0362-01", "first_page_order": 400, "last_page_order": 405 }