#### MADISON COUNTY RAILWAY COMPANY v. R. M. GAHAGAN et al.

(Filed 14 December, 1912.)

1. Railroads — Easements—Condemnation—Good Faith — Pleadings —Issues—Interpretation of Statutes.

When in proceedings by a railroad company to condemn lands the answer denies the intention of the petitioner in good faith to construct the proposed railroad (Revisal, sec. 2580), the pleadings, in this respect, do not raise an issue of fact to' be transferred to and tried by the Superior Court in term, under *191the provisions of Revisal, sec. 529; and section 2588, construed in connection with section 529, which provides1 only for .a jury trial on appeal from the amount of damages assessed by the appraisers, excludes the idea that the question of good faith should in like manner be tried.

2, Railroads — Easements—Condemnation—Damages—Costs—Appeal and Error.

In proceedings brought by a railroad company to condemn lands, it was found by the jury on appeal to the Superior Court that defendant’s benefit therefrom, exceeded his damages, the assessors having found they were equal: Held, the costs were taxable against the plaintiff accruing up to the time of appeal from the cl'erk, and against the defendants appealing from the Superior to the Supreme Court, the judgment of the Superior Court being affirmed.

3. Railroads — Easements—Condemnation—Measure of Damages— Water-powers — Harmless Error — Instructions—Appeal and Error.

In proceedings to condemn lands there was evidence tending to show that there was an undeveloped water-power thereon, which was the only evidence as to the future possible use of the property. The judge charged the jury that it was only proper for them to consider actual damages, not those remote or speculative or dependent upon a future possible use of the property ; and further, specifically and correctly, charged how the jury should consider the evidence on this phase of the damages: Held, construing the charge as a whole, no error is found, and the charge of the court is approved.

Appeal by defendant from Long, J., at February Term, 1912, OÍ MADISON.

Tbis is a proceeding brought by tbe plaintiff against tbe defendants for tbe condemnation of certain lands belonging to tbe defendants for a right of way for railroad purposes. Tbe proceeding was commenced by a summons issued by tbe Clerk of tbe Superior Court of Madison County on 28 December, 1910.

Upon tbe return of tbe summons, complaint and answer having been filed, tbe clerk made an order appointing -commissioners to assess damages and benefits to tbe defendants’ lands. Tbe commissioners reported that tbe damages and benefits were equal. Tbe defendants excepted to tbe order appointing com*192missioners and to tbe report of tbe commissioners, and to tbe order of tbe clerk confirming tbe report, of tbe commissioners, and appealed to tbe Superior Court in term-time, where it was tried and tbe jury rendered a verdict for tbe plaintiff, assessing tbe defendants’ damages at $1,800 and tbeir benefits at $3,400. Judgment was thereupon entered for tbe plaintiff, and the defendants appealed to tbe Supreme Court.

It is alleged in tbe petition and denied in tbe answer: “That it is tbe intention of tbe Madison County Railroad Company in good faith to construct and finish and operate a railroad from and to tbe places named for that purpose in the articles of tbe association, and referred-to in tbe 11th paragraph of this petition.”

In tbe order appointing tbe commissioners, tbe clerk finds as a fact that it is tbe intention of tbe petitioner, in good faith, to construct and operate the railroad‘as alleged, and it appeared on tbe trial in tbe Superior Court that tbe road bad been constructed a distance of 10 miles, and was then in operation as a common carrier.

Tbe defendants tendered tbe following issue, which was refused, and they excepted: “Is it tbe intention of the plaintiff, in good faith, to construct, finish, and operate the proposed railroad as a common carrier, as alleged in tbe petition?”

His Honor taxed tbe costs against tbe petitioner up to the time of the appeal from the clerk, and against the defendants thereafter, and defendants excepted.

Gudger & McElroy, Guy & Roberts, and Merrick & Barnard for plaimiiff.

Martin, Rollins & Wright for defendants.

AlleN, J.

Tbe denial by tbe defendants of tbe allegation in tbe petition that it is tbe intention of tbe petitioner in good faith to construct and operate tbe proposed railroad, does not raise an issue of fact, and bis Honor properly refused to submit tbe issue tendered. R. R. v. R. R., 148 N. C., 64.

In this case, tbe Court says: “Tbe plaintiff, as required by section 2580, Revisal, stated in its petition that it bad been duly chartered; that it was its intention in good faith to construct, *193finish, and operate a railroad from and to the termini named ■ in its charter; that its capital stock, as required by its charter, had been subscribed and the portion thereof required to entitle its organization and commencement of operation had been paid in; that it had been unable to acquire title to the lands necessary for its right of way or the easement thereon, and the reason of such inability. . . . When these essential averments are made and denied, how shall the court (the clerk) proceed? It is manifest that the pleadings, in this condition, do not raise ‘issues of fact,’ requiring the cause to be transferred to the civil-issue docket, as required by section 529, Eevisal. These preliminary questions are to be decided by the clerk. If he finds against the petitioner upon them, he dismisses the proceeding, and, if so advised, the petitioner excepts and appeals to the judge, who hears and decides the appeal. . . . By the statute (1893, chapter 148; Eevisal, sec. 2588) it was provided that, in condemnation proceedings by any railroad or by any city or town, ‘any person interested in the land, or the city, town, railroad or other corporation, shall be entitled to have the amount of damages assessed by the commissioners or jurors heard and determined upon appeal before a jury of the Superior Court, in term, if upon the hearing of such appeal a jury trial be demanded.’ This limitation upon the right to demand trial by jury clearly excludes the idea that any such right is given in respect to the questions of fact to be decided preliminary to the question of damages. In Durham v. Riggsbee, 141 N. C., 128, the question presented upon this exception is discussed by Mr. Justice Brown. Beferring to the allegation that the petitioner has been unable to acquire the title, and the reason therefor: ‘While this is a necessary allegation of the petition, it is not an issuable fact for the jury to determine. The judge was right in refusing to submit it to the jury. Since the act of 1893 (Eevisal, sec. 2588) the defendants had a right to demand a jury trial upon the matter of compensation.’ ”

We are also of opinion that the adjudication as to costs was in the discretion of his Honor.

Section 2589 of the Eevisal provides that, “In any case where the benefits to the land caused by the erection of the railroad, *194street railway, telephone, telegraph, water supply, bridge, or electric power or lighting plant are ascertained to exceed the damages to the land, then the said company shall pay the costs of the proceedings, except as provided in section 1269, and shall not have a judgment for the excess of benefits over the damage,” and section 1269, referred to, authorizes the judge to adjudge the costs in condemnation proceedings as it appears to him to be equitable and just, when in his opinion the privilege, use, or easement has been improperly refused.

It appears from the record that disinterested commissioners had reported that the special benefits to the defendants were equal to the damages, and that the defendants appealed, and upon the evidence submitted to a jury, a verdict was returned finding that the benefits exceeded the damages by $1,600.

On these facts, it was proper to require the petitioner to pay all costs accruing up to the time of the appeal from the clerk, and the defendants to pay the costs thereafter incurred.

There are several exceptions to parts of the charge which demand no particular discussion. The one principally relied on is that his Honor told the jury that, “In estimating damages of any kind to the lands of the defendants taken by the railroad company, it is only proper to consider actual damages, not those remote or speculative or dependent upon a future possible use of the property.”

The only evidence as to the future use of the property was as to the development of the water-power, and the language used, standing alone, might be construed to exclude that as an element of damage; but the charge must be considered as a whole, and his Honor further charged the jury: “If the jury shall find there is a water-power on these lands, in estimating - the value of such water-power the jury will take into consideration the feasibility and practicability of developing same, and the cost of its development, and if the jury shall find that the cost of developing said water-power is so great as to make it unprofitable, then no damages will have been suffered by the defendants by reason of its alleged destruction. In connection with this water-power, the jury will take into consideration whether or not the same can be developed as completely with the *195railroad constructed as it could have been without the railroad being there, and if tbe jury shall find that this water-power can be developed as economically and so as to produce practically the same power now that the railroad has been constructed as it could have been before, then the defendants have suffered no damages to their alleged water-power by reason of the construe- • tion of the railroad. If the jury shall find that the water-power has a value, and that same has been damaged by the construction of the railroad, in assessing the damages the jury shall only consider the lands up to the mouth of Woodson Branch, over which the railroad runs. Defendants are entitled to no damages outside of those described in plaintiff’s petition, and if other lands are required for the development of the waterpower, then the defendants are entitled to damages for their proportionate part of such water-power. Defendants, or any of them, are not entitled in this suit to damages to lands on the opposite bank of the river from the railroad, unless you find the land of W. W. Gahagan on the opposite bank of the river from the railroad track was actually damaged as to water-power • possibilities, as alleged by him. If there is such damage found actually and approximately to result, you may estimate such in fixing damages, if any is found.”

The jury could not fail to understand, from this, that they were to estimate the damage to the water-power and its future development.

The case has, in our opinion, been fairly submitted to a jury, and we find no error which will justify disturbing the judgment rendered upon the verdict.

No error.