{
  "id": 11272552,
  "name": "SOUTH ATLANTIC WASTE COMPANY v. RALEIGH, CHARLOTTE AND SOUTHERN RAILWAY COMPANY",
  "name_abbreviation": "South Atlantic Waste Co. v. Raleigh, Charlotte & Southern Railway Co.",
  "decision_date": "1914-12-02",
  "docket_number": "",
  "first_page": "340",
  "last_page": "344",
  "citations": [
    {
      "type": "official",
      "cite": "167 N.C. 340"
    }
  ],
  "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": "150 N. C., 315",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": -1
    },
    {
      "cite": "147 N. C., 437",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "116 N. C., 925",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "143 N. C., 510",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "108 N. C., 133",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "150 N. C., 315",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
  ],
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  "last_updated": "2023-07-14T20:55:31.572596+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "SOUTH ATLANTIC WASTE COMPANY v. RALEIGH, CHARLOTTE AND SOUTHERN RAILWAY COMPANY."
    ],
    "opinions": [
      {
        "text": "Beown, J.\nThe application of plaintiff for an injunction certainly comes very late, and seems to have but little merit. Before the railroad was constructed along Brevard Street, and when construction work reached plaintiff\u2019s property, plaintiff sued out a restraining order, enjoining the further construction of the railway. The matter was heard by Webb, J., and the restraining order dissolved. The plaintiff appealed, but did not prosecute the appeal.\nThe defendant thereupon proceeded to finish its construction work and completed its road, and it is'-now in full operation as a common carrier. Hnder such circumstances the plaintiff has very little claim upon the interference of a court of equity in its behalf. It should have prosecuted its appeal and not have stood by and seen the road constructed and in operation and again ask the court to interfere.\nAs is well said in Griffin v. R. R.: \u201cIt is against the policy of the law to restrain industries and such enterprises as tend to develop the country and its resources. It ought not to be done except in extreme cases, and this is not such a one. It is contrary to the policy of the law to use the extraordinary\" powers of tbe court to arrest tbe development of industrial enterprises, or tbe progress of works prosecuted apparently for tbe public good as well as for private gain. Tbe court will not put tbe public to needless inconvenience. Tbe court should have dissolved tbe restraining order.\u201d Griffin v. R. R., 150 N. C., 315; Navigation Co. v. Emery, 108 N. C., 133; Pedrick v. R. R., 143 N. C., 510; R. R. v. R. R., 116 N. C., 925.\nNevertheless, we do not think tbe plaintiff is entitled to the injunction \u2022 in any view of tbe facts.\nTbe plaintiffs property borders on Brevard Street in tbe city of Charlotte. There is no evidence that tbe plaintiff owns tbe fee in said, street or any other rights than those of an abutting owner. Tbe defendant\u2019s road does not run on its land or touch it at any point. Tbe facts appear to be that on 14 October, 1912, tbe defendant purchased from tbe Highland Park Manufacturing Company a small strip of land on tbe east side of North Brevard Street opposite to tbe plaintiff\u2019s property, where said street turns east from Brevard Street towards Caldwell Street, and on 14 October, 1912, petitioned tbe board of aldermen of tbe city of Charlotte to be allowed to change tbe location of Brevard Street to tbe strip of land so purchased from tbe Highland Park Manufacturing Company, and to use tbe portion of Brevard Street immediately in front of tbe plaintiff\u2019s property for tbe location and construction of its railway track into tbe city of Charlotte,- filing with said petition a blue-print showing tbe proposed change, with a profile of tbe track, its elevation, and tbe underpasses to be built under tbe track in front of tbe plaintiff\u2019s property.\nThis petition was allowed by tbe city authorities, and tbe course of tbe street was accordingly changed and tbe road constructed on what was formerly a portion of Brevard Street in front of plaintiff\u2019s property. Tbe change in tbe street was made by tbe defendant and tbe road located under tbe direction and supervision of tbe city engineer and with tbe approval of tbe city authorities.\nTbe rights of tbe plaintiff as an abutting owner are conceded, and it is immaterial whether it owned tbe fee or not. It involves simply a question of damage. As we have heretofore said: \u201cIt is immaterial whether tbe title of tbe street is in tbe municipality or tbe abutting owner. If in tbe former, it is a breach of tbe trust reposed in tbe authorities, and if in tbe latter, it is an additional burden. In either case damages or compensation will be awarded proportionate to tbe injury sustained.\u201d Staton v. R. R., 147 N. C., 437.\nTbe city clearly possessed tbe right to assent to tbe use of tbe street by tbe railway, and it is plain that it has given its assent. Tbe designation of the street to be used and the location of the route of the road through the city is a matter to be determined by the city authorities. Griffin v. R. R., supra.\nIf the plaintiff\u2019s property has been subjected to injury or additional servitude because it abuts on the street, the remedy is in damages, and not by injunction.\nAffirmed.\nDEFENDANT\u2019S APPEAI,.\nThe court submitted to the jury an issue to establish the damage, and in response thereto the jury assessed the plaintiff\u2019s damage at $10,000. The defendant excepted to rulings of his Honor upon this issue and assigns the same as error.\nThe defendant excepts to the evidence of witnesses to the effect that a portion of Brevard Street running by the property of the plaintiff had been entirely occupied by the defendant; that previous thereto there was a road at this place over which the plaintiff had ingress and egress to some property which it had leased across the way or near by, and was using in its business, and that its right of ingress and egress to this leasehold property had been injured by the construction of the railroad.\nWe see no error in this. Whatever damage and inconvenience the plaintiff had sustained by reason of the interruption of access to its property or by rendering it less convenient for the use to which the plaintiff had put it is an element of damage.\nOther exceptions relate to the admission of evidence of certain witnesses who testified that while they could not express in dollars and cents the damage to the property on account of the defendant\u2019s fill and embankment, yet in their opinion the property had been damaged to a certain percentage of its value and had been depreciated 33% per cent on account- of the defendant\u2019s road. We see no objection to this testimony. It was proper to prove that after the building of the road and on account of the injury done to the plaintiff\u2019s property, it had depreciated in value.\nOther exceptions relate to the refusal of the court to instruct the jury that they should not allow any damages for injury to the appearance of the plaintiff\u2019s property. The appellant asked for a special instruction upon this subject, and excepts to the refusal of the court to give this special instruction and also to what the court did instruct the jury upon the subject.\nThe special instruction asked for was as follows: \u201cThe court instructs the jury that, in arriving at any award, should they award damages to the plaintiff, they will not take into consideration 'any effect caused by the construction of the defendant\u2019s railroad track upon the mere appearance of the plaintiff\u2019s property.\u201d\nThe instruction given was as follows: \u201cYou cannot award damages to the plaintiff for any danger which may arise from apprehended fires, because if the plaintiff\u2019s property should happen to be burned by the negligence of the defendant in this respect, the plaintiff would be entitled to recovery of damages; nor would the plaintiff be entitled to recovery for such inconveniences as arise from the ordinary operation of railway trains, such as noise and smoke or the mere proximity of the railway to the plaintiff\u2019s property, or. the vibrations, if any, caused by the operation of the train, except as they may affect the physical condition of the property of the plaintiff; and the same rule applies to the interference with the general appearance of the property.\u201d\nWe think the. prayer of the defendant was substantially given, and whether a correct proposition of law or not, the defendant has no reason to complain.\nUpon the issue of damages, the charge of his Honor was very clear and entirely favorable to the defendant. The proposition is laid down and enforced in the charge that damages in this case are recoverable only when .they arise from some physical interference with the plaintiff\u2019s property, or jDhysical interference with a right or use appurtenant to the plaintiff\u2019s property. His Honor carefully instructed the jury that they were to assess permanent damages and that under that issue the plaintiff could recover only one compensation for any actual direct physical injuries caused to the plaintiff\u2019s property by the construction of the defendant\u2019s road in the street in front of it.\nHis Honor spoke as follows: \u201cThe question is this, What is the direct damage to the Aralue of the plaintiff\u2019s property caused by the defendants interference with its use for the purpose for which it was established? To what extent does such interference impair the actual market value of the property? The damages recoverable are only such as arise from some physical interference with the plaintiff\u2019s property, or physical interference with a right or a use appurtenant to the property. Now, that is the rule by which you are to be guided in assessing damages. You cannot allow anything as damages based upon unknown or imaginary contingencies or events, or such as may not reasonably and naturally be expected to result to the plaintiff or to the plaintiff\u2019s property from the construction, operation, and maintenance of the defendant\u2019s road.\u201d\nUpon the whole record, we find\nNo error.",
        "type": "majority",
        "author": "Beown, J."
      }
    ],
    "attorneys": [
      "Cameron Morrison, D. B. Smith, J. H. McLain for plaintiff.",
      "Pharr & Bell for defendants."
    ],
    "corrections": "",
    "head_matter": "SOUTH ATLANTIC WASTE COMPANY v. RALEIGH, CHARLOTTE AND SOUTHERN RAILWAY COMPANY.\n(Filed 2 December, 1914.)\n1. Railroads \u2014 Easements\u2014Equity\u2014Restraining Order \u2014 Injunction.\nSemble, an owner of a lot on a city street, after Laving been refused a restraining order in tbe Superior Court against a railroad company from continuing tbe construction of tbe roadway in front of bis property on tbe street, and from wbicb order he lias not appealed, is not entitled to consideration in equity upon bis application thereafter for a permanent injunction against tbe continued use of the road by tbe common carrier, wbicb bad been put into full operation. Griffin v. R. R., 150 N. C., 315, \u25a0 cited and applied.\n2. Same \u2014 Municipal Authority \u2014 Damages.\nTbe defendant railroad company in this case petitioned the city to change tbe location of one of tbe streets by using for street piurposes a strip of land tbe defendant owned, and to permit it to use tbe street running in front of plaintiff\u2019s property for its roadway and railroad purposes, wbicb was granted, and tbe road constructed in accordance with a blue-print, etc., filed with tbe petition and under tbe direction and supervision of tbe city engineer and with tbe approval of the city authorities. Held, the location of tbe road through tbe city was a matter to be determined by tbe city authorities, and tbe plaintiff is not entitled to injunctive relief, tbe remedy being in an action for damages.\n3. Railroad \u2014 Easements\u2014Abutting Lands \u2014 Ingress to Lands \u2014 Damages\u2014Evidence.\nDamages are recoverable of a railroad company wbicb has constructed its railroad along and upon a city street upon wbicb tbe plaintiff\u2019s lands abut, whether tbe plaintiff has shown any title to tbe street, or not, which arise from the inconvenience the plaintiff has sustained by reason of tbe interruption of access to bis property, by rendering it less convenient for tbe purposes to which be bad put it; and it is held competent, in this case, for the plaintiff to show that by tbe construction of tbe railroad at this place tbe plaintiff\u2019s ingress and egress bad been impaired to and from leased property used in connection with its business conducted there.\n4. Railroads \u2014 Easements \u2014 Abutting Lands \u2014 Depreciation\u2014Damages\u2014Evidence.\nWhen compensatory damages are recoverable from a railroad company by an owner of lands abutting on tbe street by reason of its construction of its roadway upon the street, it is competent for the plaintiff to show the diminution in value to his property by reason of the construction complained of, and while a witness testifying in behalf of the plaintiff may not be able to express in dollars and cents the amount of the damages caused, they may, in proper instances, give their opinion that the property has been damaged a certain per cent of its value.\n5. Railroads \u2014 Easements'\u2014Abutting Lands \u2014 Measure of Damages.\nThe plaintiff sues a railroad company for damages to his property arising from its constructing and operating its railway upon the street in front of his lot abutting thereon, and it is held that the defendant\u2019s prayer for instruction asking that the jury should not take into consideration any effect upon the mere appearance of the plaintiff\u2019s property caused by the construction of the road was substantially incorporated in the charge given, of which the defendant cannot complain.\nAppeal by both parties from Adams, J., at May Term, 1914, of Mecic-LENBUKG. *\nPLAINTIEE\u2019S APPEAL.\nCivil action to permanently enjoin defendant from operating its railway along what was Brevard Street in Charlotte in front of plaintiff\u2019s property and for permanent damages if injunction is denied.\nHis Honor, after hearing all the evidence, denied the injunction, and submitted the issue of permanent damages to the jury. The plaintiff appealed from the judgment denying' the injunction.\nCameron Morrison, D. B. Smith, J. H. McLain for plaintiff.\nPharr & Bell for defendants."
  },
  "file_name": "0340-01",
  "first_page_order": 394,
  "last_page_order": 398
}