
    HOLLY SHELTER RAILROAD CO. v. NEWTON.
    (Filed September 29, 1903.)
    
      PROHIBITION — Eminent Domain-Writs — The Code, secs. 116, 256, 19Jf5,1946.
    
    A writ of prohibition is not a writ of right, but its issuance is a matter of discretion, and will not be granted to prevent the clerk of the superior court from hearing an application for the condemnation of a right of way for a railroad.
    This was an application to the Supreme Court by the defendant for. a WRIT Of PROHIBITION.
    
      Rountree & Carr and J. D. Bellamy, for the petitioners.
    
      Iredell Meares, in opposition.
   ClaR.ic, O. J.

This is an application by tbe defendants for a writ of prohibition upon tbe following state of facts: Tbe plaintiff, on tbe face of tbe papers, a duly incorporated railroad company, on 7th July, 1903, filed a petition before tbe Clerk of tbe Superior Court of Pender County for condemnation of a right of way over tbe defendants’ land. On the 22d July, 1903, tbe defendants appeared before tbe Clerk and objecting specially to the sufficiency of service of summons upon one of tbe defendants, filed an answer raising, as they claim, issues of fact, and asked that tbe cause be transferred to the Superior Court at term. This being refused, tbe defendants appealed to the Judge, who, on 12th September, 1903, allowed tbe plaintiff to amend by filing an amended profile (Faison v. Williams, 121 N. C., 152), and remanded tbe cause to the Clerk with directions to proceed and bear tbe cause, giving ten days’ notice to each party. Prom this order of tbe Judge the defendants appealed. Tbe Clerk being correctly of opinion that this order of tbe Judge was interlocutory and that no appeal lay, proceeded to execute tbe order of tbe Court by giving due notice that on 24th September be would proceed with tbe bearing. Tbe defendants ask for a writ of prohibition to tbe Clerk, alleging that irreparable damages will accrue if tbe Clerk proceeds with the hearing and shall appoint commissioners to assess damages.

Tbe writ of prohibition can issue only from, this Court, and is authorized by Article IY, section 8 of the Constitution. It only issues in cases where it is necessary to restrain tbe action of the lower Courts, proceeding outside of their powers, and even then it is not a. writ of right, but its issuance is a matter of discretion, and it “issues only in cases of extreme necessity.” 23 Am. and Eng. Eñe. (2 Ed.), 212; High on Extraordinary Eemedies, secs. 763 and 765. It will not issue when there is any sufficient remedy by ordinary methods, as appeal, injunction, etc., or when no irreparable damage will be done. State v. Allen, 24 N. C., 183; Perry v. Shepherd, 18 N. C., 83; State v. Whitaker, 114 N. C., 818. These seem to be the only cases in which application for this extraordinary remedy has been made in this State, and in all of them it was refused. In State v. Allen, supra, Gaston, J., says the writ should not issue except in a very clear ease, peremptorily calling for an immediate remedy, and then only after notice to the opposite side and upon affidavits. In State v. Whitaker, supra, it was said that if the emergency was so great and immediate that notice could not be given, a notice to show cause would issue with a stay of proceedings.

In the present case no appeal lay from the order of the Judge remanding the case to the Clerk to proceed, and the attempted appeal, if perfected, would be dismissed here, being taken without authority of law. Of course this Court could not issue its prohibition to the Clerk against executing the order of the Judge when there has been no appeal authorized by law. While the general rule is, as set out in The Code, sections 116 and 256, that upon issues of fact or law arising before the Clerk the cause is transferred at once to the Court at term, in this matter of condemnation of right of way for railroads, for reasons of public policy and to prevent delays by appeals from interlocutory judgments which would seriously interfere with the construction of railroads, it is specially provided otherwise. Railroad v. Warren, 92 N. C., 622.

The Code, sec. 1945, provides that the Clerk shall hear and decide the application for condemnation and appoint commissioners, and section 1946 provides that upon the coming in of the report, exceptions may he filed “and upon the determination of the same by the Court, either party may appeal to the Court at term, and thence, after judgment, to the Supreme Court.” This last section provides further that upon the payment into Court of the sum appraised as damages, tbe company may enter upon tbe right of way, “notwithstanding tbe appeal,” and that if on appeal tbe Court refuses to firm the condemnation of tbe land, tbe company shall surrender tbe land, with power in the Court to issue a writ of restitution, and that it shall adjudge what portion of tbe fund paid into Court in such case shall be returned to tbe company, tbe object evidently being to vest in tbe Court tbe power to adjudge payment to tbe land owner of tbe damages sustained by him from tbe entry. As entry is only authorized after tbe report of tbe commissioners is confirmed by tbe Clerk and payment into Court of tbe sum assessed, there could be no great amount of damages, if any, in excess of the sum adjudged by tbe commissioners and tbe Clerk as the full value of tbe land, in tbe brief period pending an appeal to the Judge. If, in an extraordinary case, it should appear that there is danger of damage to tbe land owner in excess of tbe sum assessed and paid in, it may be that tbe Judge, in tbe exercise of bis sound discretion, can order tbe company to file a bond to cover such possible excess, and upon failure of tbe company to comply with such order, restrain it from proceeding to enter; but it should be a very clear case to authorize tbe Judge to require more than tbe statute. Certainly there can be no call for this Court to interfere with tbe regular proceedings of tbe Court below by prohibiting tbe Clerk from appointing commissioners. Tbe defendants have complained before they are hurt.

That no appeal lay at this stage, i. e., from tbe Judge remanding tbe cause to tbe Clerk, has been repeatedly adjudged. Telegraph Co. v. Railroad, 83 N. C., 420 (where tbe subject is fully discussed by Smith, C. J.); Railroad v. Railroad, Ibid., 499; Commissioners v. Cook, 86 N. C., bottom of p., 19 ; Railroad v. Warrne, 92 N. C., 622 (where it is said that tbe object of tbe statute is to expedite tbe construction of works Of internal improvement by allowing them to proceed upon payment into Court of assessed damages without interruption by appeals, which in such cases lay only from the final judgment); Hendricks v. Railroad, 98 N. C., 431, which says: “They settle the course of practice in such proceedings and sufficiently state the reason for it.”

But even if an appeal lay and the Clerk had been proceeding unadvisedly, it does not follow that the Court would intervene by this extraordinary writ. High on Extraordinary Eemedies, secs. 767, 770, 771; 23 Am. and Eng. Enc. (2 Ed.), 207-211.

Prohibition on very similar facts to1 these was refused. Parker v. Snohomish, 25 Wash., 544; State v. Court, 7 Wash., 74.

Petition denied.  