#### WATAUGA AND YADKIN RIVER RAILROAD COMPANY v. BLANCHE FERGUSON.

(Filed 5 May, 1915.)

1. Railroads — Easements — Rights of Way — Payment of Assessment — Right of Appeal — Statutes—Amendments.

On appeal by a railroad company from the amount of the assessment to be paid the owner of lands for its right of way it is necessary for the company to pay the money into court before building and operating its road [Revisal, secs. 2587, 2567 (4), 2566]; but this does not preclude the right of subsequent legislation to permit by special charter the railroad to appeal without paying the assessment until final judgment.

2. Same — Final Judgment — Talcing of Property — Compensation—Constitutional Law.

Where a legislative charter of a railroad company requires the company to pay the assessment for the right of way into court before acquiring the right to construct its road thereon pending appeal, and thereafter, and subsequent to the general statutes on the subject, an amendment is made by the Legislature, permitting the company, after the amount of compensation has been fixed by certain proceedings provided for, to enter upon the lands for the purpose of constructing its road without condemnation. It is not a talcing of private property prohibited by the Constitution, for the title to the right of way does not pass until final judgment and compensation in accordance therewith.

Appeal by plaintiff from Harding, J., at August Term, 1914, of Caldwell.

Squires & Whisnant for plaintiff.

W. G. Newland and Ilachett & Gilreath for defendant.

ClaRK, C. J.

This is an appeal from an order of the clerk approving the assessment of damages by the commissioners condemning the right of way for the plaintiff under its charter, Private Laws 1905, ch. 411.

Revisal, 2587, provides: “If the said company at the time of the appraisement shall pay into court the sum appraised by the commissioners, then and in that event the said company may enter, take possession, and hold said lands, notwithstanding the pendency of the appeal, and until the final judgment rendered on said appeal.” The charter of the plaintiff, Private Laws 1905, ch. 411, is practically to the same effect as the provision in Revisal, 2567 (4), which provides that the railroad company may lay out its road not exceeding 100 feet in width and construct the road, making compensation therefor as provided by that chapter for lands taken for the use of the company.

Chapter 11, Private Laws 1913, amends this provision of the charter (sec. 4, eh. 411, Pr. Laws 1905) by adding at the end thereof: “after the amount of such compensation shall have been determined by a proceeding instituted either by said railroad company or by the owner of the lands through which the line of said railroad may run; and said railroad company shall not be required to institute proceedings for the *71condemnation of lands prior to tbe time of entering upon tbe lands of any person for tbe purpose of constructing its line of railroad.” Tbe plaintiff entered upon tbe right of way, constructed its road, and is now operating traffic over tbe same. Tbe defendant relies upon Eevisal, 2566, wbicb provides tbat tbat chapter (cb. 61) “shall govern and control, anything in any special act of the Assembly creating a railroad corporation to tbe contrary, notwithstanding, unless in tbe act of tbe General Assembly tbe section or sections of this chapter intended to be repealed shall be especially referred to by number and, as such, shall be repealed.” This reference was not made in chapter 11, Private Laws 1913, and on motion of tbe defendant tbe court dismissed tbe plaintiff’s appeal upon tbe ground tbat, not having paid into court tbe $800 assessed for damages, tbe plaintiff could not prosecute its appeal.

It is true tbat Eevisal, 2566, was held valid in R. R. v. R. R., 106 N. C., 16, and Liverman v. R. R., 109 N. C., 52, but said section 2566 of tbe Eevisal is like any other act of tbe Legislature and is subject to any subsequent legislation, and is only useful in construing tbe meaning of subsequent legislation when it is doubtful. But it cannot have tbe effect to prevent antagonistic legislation at a subsequent date.

Tbe amendatory act, chapter 11, Private Laws 1913, authorizes tbe plaintiff company to enter “upon the lands of any person for the purpose of constructing its line of railroad” without prior thereto instituting proceedings for condemnation. Tbe power of tbe Legislature to authorize the taking of property under tbe right of eminent domain without requiring tbe precedent payment therefor is discussed and decided in S. v. Lyle, 100 N. C., 497, and has been approved since. See citations in Anno. Ed. It is there held tbat compensation must be provided for to warrant tbe taking, but tbat it need not precede tbe taking, and tbat “tbe owner is confined to tbe special remedy given him by tbe statute under wbicb bis property is seized.”

In S. v. Wells, 142 N. C., 593; Street R. R. v. R. R., ib., 438; S. v. Mallard, 143 N. C., 666, tbe Court held tbat under the general statute a railroad company bad no right to begin tbe construction of its road until tbe payment into court of tbe damages assessed, and tbat its only right prior to payment thereof into court was to enter on tbe right of way merely for tbe purpose of surveying and laying it off, so tbat tbe commissioners might assess damages. But, as we have seen, under tbe amendment to the charter of tbe plaintiff company by chapter 11, Laws 1913, tbe plaintiff could construct its railroad before complying with this requirement. This does not deprive tbe defendant of proceeding to collect tbe compensation assessed on tbe final trial, for until payment therefor tbe title to tbe easement in her bands does not pass to tbe plaintiff company.

Eeversed.