The North-Carolina standard., 1845-04-09
LEG
STATE
In SUPREME Court,

A>CCCHSOCI
The Defendant was indicted in Northampton
County. for tearing up part of the Portsmouth
and Roanoke Rail Road, contrary to the 7th
Section Of the Act of Assembly, creating the Ports
mouth and Roanoke Rail Road Company
He justified upon the ground that he bad bought
so much of the Road as lay in Northampton
County, at sale made by the Sheriff of North
hampton, under an Execution, issuing on iudg-
ment obtained against the Company by one
ROCHELLE, on debt due by them to him.
| The Court below having decided against the
Defendant, he appealed to the Supreme Court.
The case argued at great length at the
June Term, 1914, by the Attorney GeneraI,0 B.
F. Moore and lredeII, for the State, and Badger
and Bragg, for the Defendant The Cont took
time to consider, and at last Term. through Chief
Justice RUFFIN, delivered the following Opinion
| OPINION.
! This case wns treated at the bar as depending
upon the question whether the defendant gained
a right of property by the Sherif's sale and con.
v"yance in the part of the road purchased or in
the materials of which it was constructed We
| think that proper view Of the subject, because
the statutes which make it an offence to ohstruct
the road or destroy its materials, have in view the
acts OF person who is not the proprietor of the
road or materials, but acts wantonly and not in the
exercise of a right. The seventh section of the
charter, for example, provides that if any person
shall wiifnlIv nure the road, he shall forfeit the
sum OF $500 to the company, 10 be recovered by
the company in an action Of debt. and shall also
be subject to an Indictment So it is seen that the
indictment is given where the penalty is insured
TO the cooperation. and that cannot accrue when
one enters under the corporate conveyance, or un
der sale on execution against the corporation,
provided such sale passes the property and the
purchaser peaceably enters upon his rights OF
property.
The enquiry, then, is, whether by the law oil
this State the writ Of feri acias lies against the
land on which a rail road is laid out2 Imight
be material to distinguish between the road itself
and the materials, such as the iron and timber,
laid down on it, if the corporation had a mere
easement or right of way over the land for in
that case the law would probably, IN favor offered
it0rs, regard those materials as mere fixtures OF
an occupier of land, which might be severed and
Sold by the sheriff, if as the property of privi-
legged corporation, they were not altogether ex-
iemptrd from execution. But the Court does not
deem it needful 70 enter into that question here,
for Two reasons-lhe FIRST that the materials were
not severed, nor were they sold as distinct from
the land; and the second. that we think the cor
poralon had an estate in the land, at least for a
term extending far beyond the duration of those
materials, and therefore that they had lost their
distinct character as personal chattlcs, and were
sunk into the realty.
! We have said that the corporation had on cs
tate in the land laid off for the road Both the ex-
press provisions of the charter, and the necessity
Of the case, lead to that conclusion The Sd Sec
ton. cnacs that, after the assessment and payment
of the damages, the company may enter upon the
land condemned and hold it to their use and ben
eft, for the purpose Of preserving and keeping up
the road during the continuance of the corporate
existence bV the act given 10 them (which ls
: siy Il, ll,b;.> h.
company shall have the same power aud auihori-
ty SAID land laid off during their existence
as corporation. under the laws of This State, as
though they owned the fee-simple thrreia This
language can signify nothing less than that the
corporation is The tenant of the land as the own
of the legal estate for the term of sixty years,
subject to the earlier determination of the corpora
ton from any cause Most of the rail DAD char
ters in this State give estate In the Iand in fee
Some estate indeed, is necessary to the preserva-
tion protection Of the road 1t is true the act
gives penalty Of $500 for destroying any part Of
the road; But that is an inadequate protection
for an evil disposed person might burn valuable
bridge, or do some other injury far beyond that
penalty in value, or might intrude on the land
without actually obstrucing the road, and in such
cases the company ought to have, and no doubt
has, remedy by action of trespass or ejectment as
the tenants or owners ofIhe soil. 1t is true the
act says the company shall hold the land for the
purpose of preserving and keeping up the roadp
and it is contended that these words, at least make
the estate conditional and that the condition is Of
such a nature as to defeat the estate, if not per-
formed, and thence It inferred that there could
be no sale of it, inasmuch that would prevent
the company from performing the condition. As
far as respects the rights of the company, or the
private interest OF its stockholders, those consider.
ations, if true, could avail nothing-for the debtor
has interest in the question, TO whom the prop
erty shall 60 after sale of it for the payment of
his debts That is question which, in this case,
may arise between the reversioner and the pur-
chaser, or between him and the public. An es
tate, upon condition, is not necessarily exempted
from sale by execution. But we do not regard
those words as creating a condition, in its proper
sense. They only ASST gn the reason why the ldw
vests the estate in the corporation The object in
view was To have the road and that is stated as
the justification of taking private properly and
vesling it in the corporation. After being thus
taken at the full value paid TO the former owner
and vested in the corporation, we see no reason
why it should not be considered as absolutely
vested in the corporation during its existence, or
in its assigns during the whole period for which
it was taken. In the case Of common and free
highways the public have only an easement. and
therefore the remedy for obstructlng the passage
over it is BY indictment merely. But the estate,
the right of soil, remains in the original proprietor,
who has. an action for injury to the land as the
owner ofIhe soil, as he might have in res2ecr 10
amy other part Of his land But ~ the case Of a
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