RAILWAY Co. v. LUMBER CO.

The Code is composed of several Acts of the legislature, it has its force and effect by virtue of its enactment in, and as a part of, the Code of 1883. The Code, Sec. 3876; State v. Chambers, 93 N. C., 600. The Code expressly provides that "civil actions shall be commenced by issuing a summons”. Section 199. "The provisions of The Code of Civil Procedure are applicable to special proceedings, except as otherwise provided." Sec. 278. The next section, 279 prescribes the form of the summons in special proceedings. Sec. 287. When the term "special proceeding" is used in Section 1943, it must be construed to have same meaning as in other sections of The Code. This is essential to an orderly and systematic procedure. In a proceeding to secure the right of drainage, commenced by a summons, Smith, C. J., said: "Undoubtedly a case should be constituted between proprietors of adjoining lands before the appointment of commissioners." Durden v. Simmons, 84 N. C., 555. After reviewing the several statutes on the subject of procedure in such cases, he says: "This construction gives force to both acts, and produces harmony and consistency in their application to the classes of cases in which each was intended." p. 559. The Court of Appeals of New York has held that a proceeding to condemn land for railway purposes is a special proceeding. Matter of Cortland v. Horse Railway Co., 98 N. Y., 336; 1 Enc. Pl. & Pr., 114. It is true that section 1943 of The Code provides that upon the filing of the petition, a copy thereof with notice of the time and place when and where the same shall be heard, must be served on all persons whose interests are to be affected. This is not inconsistent with the general provision of The Code requiring that a summons issue as the original process giving the court jurisdiction. It is not easy to understand why the law should require that a summons must issue in a civil action involving the title to a cow or horse, and in Special Proceedings; where

RAILWAY Co. v. LUMBER CO.

as that, in the exercise of the right of eminent domain given by the State to a corporation involving valuable rights of property, a simple notice signed, as in this case by two gentlemen of the Bar as "Petitioner's Attorneys" is sufficient. In all other proceedings, jurisdiction is acquired by a command "from the State of North Carolina", issuing out of "our Superior Court"; whereas in this proceeding a simple notice or polite letter is addressed to the defendant. It may be that we should construe the word "notice" in harmony with the general provisions of The Code to mean summons, thereby conforming the proceeding from its inception to its conclusion, to the general system of procedure. This construction harmonizes the statute with the underlying principle of our government "that no man shall be deprived of his life, liberty or property, except by due process of law”. Due process implies correct and orderly proceedings which are due because they observe all the securities for private rights which are applicable to particular cases." Civil Rights Cases, 109 U. S., 3. This construction of the statute is also in harmony with the well settled principle that the authority to exercise the right must be strictly construed. "In construing statutes, which are claimed to authorize the exercise of the power of eminent domain, a strict rather than a liberal construction is the rule. Such statutes assume to call into active operation a power, which, however essential to the existence of the government, is in derogation of the ordinary rights of private ownership and of the control which the owner usually has of his property. The rule of strict construction of condemnation statutes is especially applicable to delegations of the power by the legislature to private corporations." Matter of Poughkeepsie Bridge Co., 108 N. Y., 490; Lewis on Eminent Domain, Sec. 253; 7 Enc. Pl. & Pr., 468. It is true that in Click v. Railroad, 98 N. C., 390, being a proceeding instituted by the owners of land over which the

RAILWAY Co. v. LUMBER CO.

defendant had built its track, the court said: "This is neither a special proceeding nor a civil action as defined by The Code. It is a summary proceeding". The appellee's very accurate and learned counsel has shown to us by the original record in his argument that the names of the land owners were signed to the notice by the counsel. With the utmost deference to the learned Justice delivering the opinion, we find no authority in The Code or any statute for calling the proceeding a "summary proceeding". As we have seen the legislature has called it a "special proceeding" and we think correctly so. Nothing is decided in that case in conflict with the question presented in this, because no objection was made to the notice or the form of the procedure, hence in the conclusion to which we have arrived we are not called upon to overrule the case.

We are of the opinion that the proceeding authorized by Section 1943 of The Code is a special proceeding and that a summons should issue as in all other cases. The clerk should have allowed the defendant's motion, or at least have issued a summons retaining the cause until the return day. His Honor was in error in refusing the motion.

error.

The decision of this question puts an end to this proceeding but among other exceptions there is one which may arise upon another trial in a proceeding properly begun, which we think should be settled. His Honor put the burden of proof upon the defendant upon the several issues. In this he was in We presume that he was led to make this ruling by the peculiar language of the statute. The exact question has been decided in New York construing a statute in the same language as ours: "That the court shall have the proofs and allegations of the parties and if no sufficient cause is shown against granting the prayer of the petitioner, it shall make an order for the appointment of commissioners." The court said "It is claimed on the part of the company and the court at special term held, that this section cast upon the respon

RAILWAY Co. v. LUMBER Co.

dent the burden of proving that the lands were not required for any purpose stated in the petition, and that in default of such proof the petitioner was entitled to the order. The The provision that the land owner may disprove the allegations of the petition gives color to this construction, but it seems to us contrary to the general intent of the Act. The provision securing notice and a right of being heard to all persons interested and requiring the court to hear the proofs and allegations of the parties, show that the legislature intended that the land owners should not be deprived of their property except by a judicial trial, or investigation' and determination of the right claimed by the corporation and that this was to be a substantial protection and not a mere matter of form." Matter of N. Y. Cen. R. R. Co., 66 N. Y., 407. "When the allegations of the petition are controverted such averment does not relieve the plaintiff of the necessity of making strict proof of its right to take defendant's property." Rochester Ry. Co. v. Robinson, 133 N. Y., 242. The law is as held in these cases.

It would be a strange conclusion that the owner of land could not prevent the taking of his property unless he could disprove the allegations of the corporation seeking to take it, by showing for instance that it did not in good faith intend to build its road and other material facts resting almost, if not exclusively in the breasts of the agents of the corporations. This would be to give to the petitioner an advantage not accorded to other suitors. The general rule, with some exceptions, in regard to the onus probandi being that the party holding the affirmative isue has the burden of proving it. We do not pass upon the proficiency of the map and profile, but it appears to us from the testimony that they do not substantially comply with the requirements of the statute. The proposed right of way is through a narrow gorge of a creek in precipitous mountains. It is said that but one track can

HARRILL . RAILWAY Co.

be laid. It is therefore very material that an accurate survey be made and a map filed showing clearly and distinctly where the proposed road is to be located. The averments in the answer, in regard to which there is evidence, show that it is a matter of very great interest to the parties whose lands are to be affected, to have a strict compliance with the statute in this respect.

Proceeding Dismissed.

HARRILL v SOUTH CAROLINA & GEORGIA EXTENSION RAILWAY OF NORTH CAROLINA.

(Filed May 12, 1903.)

1. JURISDICTION—Actions-Transitory Actions - Negligence - Personal

Injuries-Executors and Administrators.

Where the statutes of another state authorize a recovery for death by wrongful act and are substantially the same as those in this state an administrator appointed here can sue here for the death of his intestate which occurred in the other state, the courts of that state not having construed its statutes to the contrary.

2. EVIDENCE-Declarations-Res Gestæ-Negligence.

In an action to recover for the death of an engineer while attempting to cross a bridge, an exclamation by a bystander at the time of the accident tending to show the dangerous condition of the bridge is competent as a part of the res gesta.

ACTION by R. M. Harrill, as administrator of Jake Metcalf, against the South Carolina & Georgia Extension Railway Company of North Carolina, heard by Judge Francis D. Winston and a jury, at June (Special) Term, 1902, of the Superior Court of RUTHERFORD County. From a judgment for the plaintiff, the defendant appealed.

Justice & Pless and McBrayer & Justice, for the plaintiff. P. J. Sinclair, G. W. S. Hart, N. W. Hardin and W. A. Henderson, for the defendant.