
    P. H. ABERNATHY v. SOUTH AND WESTERN RAILWAY COMPANY.
    (Filed 22 December, 1908.)
    1. Railroads — Condemnation, Right of — Trespass.
    A railroad company having the right of eminent domain, entering upon and occupying lands for building its track, is not a trespasser.
    2. Railroads — Condemnation Proceedings — Procedure—Power of Courts.
    The courts have authority under the statute to make rules of procedure jn- condemnation proceedings, when not expressly provided, “so that the practice shall in such cases conform as near as may be to the ordinary practice in the court.” (Revisal, sec. 2593.)
    S. Railroads — Condemnation Proceedings — Exceptions—Clerk—Appeal and Error — Trial by Jury. * "
    In condemnation proceedings, questions of the fact and law are first determined by the clerk, to whose rulings exceptions may be noted. No appeal lie's until after the final report of the commissioners to appraise the value of the land has been made. Upon appeal the entire record is taken up and all of the exceptions are passed upon by the Superior Court.
    
      4. Railroads — Condemnation Proceedings — Compensation—Title.
    A plaintiff, asking compensation from a railroad company for possessing and occupying liis land for railroad purposes without first haying exercised its right thereto in condemnation proceedings, must show title in himself; he may not force the corporation to take and pay for a doubtful title..
    5. Same — Evidence.
    In the trial of a special proceeding by the owner for compensation for land taken by the company it is competent for it to introduce evidence tending to show title in a stranger to the suit, without connecting itself therewith.
    6. Railroads — Condemnation Proceedings — Title in Stranger — Evidence.
    It is competent, in the trial of a suit brought for compensation by one claiming title to land used by a railroad company for railroad purposes, for the company to introduce evidence tending to show a prior unregistered deed from plaintiff’s grantor'to a third person; the loss and manner of loss of the deed; facts-showing that, at the time he acquired the quitclaim deed under which he claimed, plaintiff knew that his grantor had no title and bought at a grossly inadequate price.
    7. Railroads — Condemnation Proceedings — Compensation—Damages — Misjoinder—Procedure.
    Proceedings for compensation for the use and occupation of plaintiff’s land by defendant railroad company as a right of way for railroad purposes, and a cause of action for damages arising in trespass, are a misjoinder. The petition will not be dismissed, but the cause of action for damages will b.e stricken out.
    8. Railroads — Condemnation Proceedings — Compensation—Measure of Damages — Evidence.
    In proceedings for compensation for the use and occupation of a right of way over his lands by defendant railroad company for railroad purposes, the measure of the recovery is the difference between the fair market value of the land before the right of way was taken and its impaired value thereby. The evidence should be restricted to that question.
    - AotioN tried-before Moore, J., and a jury, at 'July Term, 1908,- of Mitchell.
    Tbe plaintiff instituted this special proceeding against defendant pursuant to tbe provisions of section 2580, Revisal; for tbe purpose of finding and recovering compensation for tbe right of way over bis land occupied and appropriated by defendant for “railroad purposes.” He filed bis petition before tbe clerk of tbe Superior Court, alleging tbat be was tbe owner in fee of tbe land, a description of wbicb is set out; tbat defendant bas entered upon and built its track across said land, and appropriated pursuant to tbe power conferred by its charter 200 feet for its track, etc. He further alleged: "Tbat said land is peculiarly valuable by reason of valuable deposits of mineral therein, especially mica, there being on said land a valuable deposit of mica, wbicb your petitioner is informed and believes could have been worked at a great profit, but by reason of tbe construction of said railroad by tbe said defendant, South and Western Eailway Company, as aforesaid, tbe working of said deposit of mica bas been rendered impractical and unprofitable, in tbat tbe embankments and excavations aforesaid and tbe roadbed and track of tbe said railroad have been built across tbe said deposit of mica in such a manner as to make it necessary, in order to prevent tbe obstructing of trains operating on said roadbed and track, to transport tbe whole of tbe waste and output of said mica deposit across tbe said embankments, excavations, roadbed and track of tbe said' defendant, and your petitioner is informed and believes tbat by reason of tbe great cost of so transporting tbe waste and output of tbe said mica deposit tbe working of tbe same would now be impracticable and unprofitable, all of wbicb is to tbe great damage of your petitioner. Wherefore, your petitioner prays tbe court tbat it appoint three disinterested freeholders who reside in tbe county of Mitchell, where tbe said land is situated, to appraise and assess tbe compensation and damages for tbe right of way of said railroad over said lands and for tbe use and occupancy of said lands by said defendant company for tbe use of its said railroad, and for damages to your petitioner caused by tbe construction of said railroad and by tbe repairs made and to be made thereon.” Summons was duly issued and served upon defendant company. Defendant answered denying tbe allegation of ownership, admitting tbat defendant company, subsequent to 22 July, 1902, went into possession of tbe right of way described in tbe petition. Tbe allegation in regard to tbe mica mine was denied. Defendant asked for appropriate relief, etc., demanding tbat tbe issues of fact raised by tbe petition and answer be transferred to tbe civil issue docket for trial, etc. The clerk made an order appointing three commissioners to assess the benefits and damages sustained by petitioner by reason of the construction of the track and the appropriation of the right of way. To this order defendant duly excepted and demanded a jury trial. The commissioners. made their report, assessing against defendant $8,000 as compensation and damages. Defendant filed exceptions to the report. Plaintiff also excepted, for that the amount assessed was inadequate, etc., demanding a jury trial upon the issue as to compensation. The clerk overruled all of the exceptions and confirmed the report. Plaintiff and defendant again excepted and appealed to the Superior Court. At the November Term, 1905, defendant, by leave of the court, amended its answer, setting forth that plaintiff acquired his title from one Abijah Thomas, who, prior to the execution of the deed to him, had conveyed said land to one J. L. Rorrison, who was then dead; that said tdeed had been lost, etc. The cause came on for trial at the July Term, 1908, of the Superior Court of Mitchell County. Plaintiff introduced a grant from the State to Job Thomas, dated 8 June, 1816; a certified copy of a deed from Job Thomas and wife to Abijah Thomas, dated 15 May, 1880. Defendant objected to the introduction of this deed. It was admitted under the provisions of chapter 101, Laws 1901. Defendant excepted. Plaintiff introduced a deed from Abijah Thomas to himself, dated 11 June, 1901. The consideration recited in this deed was $10, and the operative words are, “have given, granted, conveyed, confirmed and quitclaimed, and by these presents do give, grant, convey, confirm and quitclaim unto the said P. H. A., his h.eirs and assigns, all my right, claim, interest and property in and to,” etc., describing the land. It does not contain any warranty. It was duly probated and recorded 14 September, 1901. Plaintiff and defendant introduced testimony in-regard to the value of the land, the location of the road, the mica mine and the effect of the construction of the track upon the operation of the mine, etc. Plaintiff’s witnesses placed a valuation upon the land before the track was laid and the right of way acquired of $20,000. There was much conflicting evidence in regard to tbe value of the mica mine, defendant’s witnesses giving the opinion that it was of very small value, while plaintiff’s witnesses thought it very valuable. Defendant offered to show by several witnesses that they had seen a deed executed by Abijah Thomas to J. L. Eorrison some eighteen years ago; that the surveyor ran the land by the deed to Eorrison. It introduced J. W. Gudger and proposed to show by him that “he took the acknowledgment of the deed from Abijah, Thomas to JVL. Eor-rison and returned the same to the custody of J. H. Greene, áttorney for Captain Eorrison, and that since the last time he saw it Mr. Greene’s office and all his papers and personal effects were washed away in the flood which devastated Bakersville sometime thereafter.” It further proposed to show by Malone Thomas, son of Abijah, who was dead, that he was present when plaintiff came to his father to get him to convey the land; that “Abijah refused to do so, stating that he had made a previous deed to J. L. Eorrison. They also proposed to show by this witness that he had-seen the deed from his father, Abijah Thomas, to J. L. Eorrison, and that it had been lost.” “The court, being of the opinion that the defendant could not in this action dispute the title of the plaintiff by showing title in some other person unless it claims under him, sustained the objection to all of the testimony offered for this purpose; whereupon defendant excepted.” Defendant also proposed to show by Malone Thomas that he was working the mica mine at the time the survey was made; that he worked under Eorrison; that the mica was sold to Eorrison and that he was paid a royalty on it. This testimony was excluded, and defendant excepted. Other testimony of the same character was tendered and excluded, and defendant excepted.
    At the conclusion of the evidence the defendant tendered the following question of fact, and asked the court to decide it before submitting to the jury the issue in regard to damages and compensation: “Is the plaintiff, P. H. Abernathy, the owner of the land described in the petition filed in this cause?” The court refused to consider or decide the question of fact. Defendant excepted. The defendant thereupon asked the court to submit an issue of fact to the jury in the same language. This was declined. Exception by defendant. Tbe defendant submitted several requests for special instruction, all of which were denied, and defendant excepted. A number of exceptions were noted to instructions given to the jury in regard to the mode of ascertaining the amount of compensation and damage which plaintiff was.entitled to recover.
    The following issues were submitted to the jury:
    “Is the plaintiff the owner of the land described in the petition?”
    The court instructed the jury that if they found he was the owner they would answer the first issue “Yes”; otherwise, “No.”
    “What damage, if any, has the plaintiff sustained by reason of the impaired value of the plaintiff’s land, caused by the appropriation by the defendant as a right of way over said land and constructing and operating a railroad on said right of way ?”
    The jury answered the first issue “Yes,” and assessed’the damages at $Y,000. .
    Judgment was signed as set out in the record. Defendant duly assigned error and appealed.
    
      Adams & Adams, W. C. Newland and S. J. Ervin for plaintiff.
    
      J. Norment Powell for defendant.
   Connor, J.,

after stating the case: Defendant, pursuant to the provisions of its charter, entered and built its track upon and through the land described in the petition. It made no effort to acquire a right of way by condemnation proceedings under its charter or the general law (chapter 61, Revisal). The plaintiff, claiming to own the land, pursuant to section 2580, brought this special proceeding, alleging title in fee in himself and demanding compensation for the right of way upon which defendant had constructed its track. He concedes that defendant is entitled, in the exercise of the right of eminent domain conferred upon it, and has the right to appropriate for •“railroad purposes” a strip of the land of 200 feet width, and proposes to confer by the judgment in this proceeding title to the easement upon being paid compensation. This he is entitled to do, provided the land belongs to him. While the proceeding for condemnation, when instituted by tbe corporation, is a forced sale, so, wben instituted by tbe owner, it is a forced purchase of tbe easement. But for tbe right of entry and appropriation before condemnation tbe defendant would by entering be open to an ¿etion for trespass. This present proceeding admits tbe right of defendant to “take,” and seeks to make it “pay.” Tbe provisions of tbe statute regarding tbe mode of procedure and rules of practice are indefinite and obscure. Tbe Legislature, recognizing tbe difficulty of doing more than outlining tbe practice so as to safeguard tbe rights of tbe parties, has conferred upon tbe court tbe power to make rules of procedure wben they are not expressly provided by tbe statute; “so that, tbe practice shall in such cases conform as near as may be to tbe ordinary practice in tbe courts.” Revisal, section 2593. We have, in cases wherein tbe corporation filed tbe petition, prescribed tbe procedure in conformity, as nearly as practicable, with other special proceedings. Railroad v. Lumber Co., 132 N. C., 644; Durham v. Riggsbee, 141 N. C., 128; Railroad v. Railroad, 148 N. C., 61. While in other special proceedings, wben an issue of fact is raised upon tbe pleadings it is transferred to tbe civil issue docket for trial, in condemnation proceedings tbe questions of law and fact are passed upon by tbe clerk, to whose rulings exceptions are noted, and no appeal lies until tbe final report of tbe commissioners comes in, wben, upon exceptions filed, tbe entire record is sent to tbe Superior Court, where all of tbe exceptions are passed upon and questions may be then presented for tbe first time. Railroad v. Stroud, 132 N. C., 413; Railroad v. Newton, 133 N. C., 132; Porter v. Armstrong, 134 N. C., 447; Durham v. Riggsbee, 141 N. C., 128. Tbe reason for this practice is discussed in these cases. Pursuant to these decisions, tbe clerk should have found whether tbe plaintiff was tbe owner of tbe land before ordering tbe appraisement. If be bad found that be was not such owner be would have dismissed tbe proceeding, and plaintiff could have appealed. If be bad found him to be tbe owner tbe defendant could have excepted, tbe clerk would have appointed tbe commissioners, and upon tbe coming in of tbe report and exception tbe entire record would have been open to review. Assuming that the clerk found that plaintiff was the owner, the case was properly in the Superior Court for all purposes. We have held that in proceedings instituted by the corporation the only issue of fact to be submitted to the jury was the amount of compensation. Railroad v. Railroad, supra. It is not clear whether his Honor should have decided the question of title or have formulated an issue and, under proper instructions, have submitted it to the jury. It is not very material as to the manner in which it was done. If controverted questions of fact were presented in regard to the title the judge can always call in to his aid a jury.

It is manifest, however, that before the plaintiff can proceed to claim or recover compensation he must establish not a mere prima facie but a good title, as he would be compelled to do in a bill for specific performance. If he does not own the land-upon which the defendant has constructed its road and imposed a burden, he has nothing to be “taken,” and therefore nothing for which he is entitled to compensation. His Honor, recognizing this truth, submitted an issue to the jury in regard to plaintiff’s title. The defendant complains that he did not permit them to show that, notwithstanding his paper title, plaintiff did not in fact have title, because his grantor had before conveying to him granted to one Rorrison. The record states that his Honor excluded the evidence tendered by defendant upon this question, because he was of the opinion that it could not in this proceeding dispute plaintiff’s title by showing that the true title was in a third person. The question is of first impression with us. The statute provides that if there are adverse and conflicting claimants to the money the court may direct it to be paid into court, and the rights of such claimants will be adjusted by reference or otherwise. This end is accomplished by bringing all persons claiming an interest'in the land before the court. The company acquires the right of way and the court distributes the compensation. Unless some such provision is made, a corporation having the right of eminent domain would be indefinitely postponed in acquiring title and going- on with its work, or be subjected to a succession of suits for compensation. The court will never require a purchaser to take and pay for a doubtful title wben be is entitled to call for “a good and indefeasible” one. Certainly, if in tbis case, after plaintiff bad shown bis quitclaim deed, defendant bad introduced a deed of prior date from bis grantor to Eorrison, tbe court would not have excluded it because defendant did not connect bimself witb sucb title. Tbe rule may be assimilated to tbat wbicb prevails in an action for tbe recovery of land in wbicb defendant may always meet tbe plaintiff’s prima facie title by showing an outstanding title in a stranger, for tbe obvious reason tbat no one except tbe true owner has tbe right to oust tbe person in possession; hence tbe familiar maxims tbat tbe plaintiff in an action of ejectment must recover upon tbe strength of bis own title, and not upon tbe weakness of defendant’s. .If tbis were an action for tbe possession of tbe land, plaintiff, upon showing title out of tbe State by tbe grant and a chain of title to himself, would recover, unless tbe defendant could show a prior grant to some one other than plaintiff’s grantor or a prior deed to a third person, etc. We do not see any good reason why, upon tbe same principle, it is not open to defendant to show tbat tbe plaintiff’s grantor bad no title wben be undertook to convey to him. Tbe reason is much stronger here, because tbe plaintiff is seeking to compel defendant to buy an easement in tbe land and pay full value for it. Tbe evidence, if believed, tended to show tbat several years before Thomas conveyed to plaintiff he conveyed tbe same land to one Eorrison; who went into possession, bad it surveyed by tbe calls in tbe deed, worked tbe mica mines on it, etc. Defendant offered to show by tbe witness Gudger that be took tbe probate of tbe deed and gave it to Mr. Greene, Eorri-son’s attorney; that bis office was washed away in a freshet wbicb visited tbe town of Bakersville. Defendant also offered to show by Malone Thomas, son of Abijab, tbat wben plaintiff approached bis father to buy the land be told plaintiff tbat be bad conveyed it to Eorrison; that'witness saw tbe deed to Eorri-son and tbat it bad been lost; “that' it was washed away,” and “tbe surveyor bad it running tbe land — that is bow I came to see tbe deed”; tbat Eorrison was in possession of tbe land at tbat time. Several other witnesses were introduced .to show tbat Eorrison was in possession, working tbe mine. Eorrison and Abijah Thomas are both dead. This testimony is competent and should have been received upon the question of plaintiff’s ownership. If true, it is manifest that at the time Thomas conveyed to plaintiff he was not the owner of the land. The learned counsel for plaintiff insists that the evidence was not of sufficient probative force to set up.the deed and show that it was lost. We- think that, if believed, it was amply sufficient to be submitted to the court and jury upon the question whether Thomas had executed such a deed. There is Thomas’ declaration to the plaintiff when he approached him to buy — a declaration against the interest of the declarant; the testimony of Gudger that he took the probate of “the. deed”; of two sons of Thomas that’ they had seen “the deed”; of one that he was present when his father told plaintiff that he had conveyed to Rorrison, and that he saw the deed when the land was being surveyed for Rorrison; of several witnesses that Rorrison was in possession of the land — that they worked the mine for him; and the purchase by plaintiff of the “right, title and interest” of Thomas for $10 of a tract of land which plaintiff’s witnesses swear was worth $20,000. Upon a bill by the heirs of Rorrison to set up the deed, this evidence, if believed, would be regarded as plenary. In regard to the loss of the deed, the evidence is necessarily much less cogent. If the execution and delivery of the deed, followed by possession of the grantee, is shown, a prima facie case showing that it was lost would entitle the party to relief. However this may be, his Honor’s ruling precluded defendant from pursuing the line of proof. It may be that, if permitted to follow it up, more satisfactory- evidence of the loss could have been adduced. Under our' former system of practice, a person claiming under a deed alleged to have been lost before registration sought relief by a bill in equity, wherein the judge heard the proofs and granted or refused relief in accordance with his opinion as to the convincing character of the evidence. He required the proof to be satisfactory, especially when the fact of execution was denied. In Plummer v. Baskerville, 36 N. C., 252, the Chief Justice lays down the general rules by which courts of equity were guided in such cases, and discusses the evidence at much length. In concluding the opinion denying relief, be says: “It would be too mncb to declare tbe existence of sucb an instrument, wben its execution is in no manner proved, either by witnesses to it or by a person saying be bad seen it, or even by a single declaration of tbe supposed bargainor, and wben there has been and could be no corresponding possession, besides many other circumstances to render it at least probable that no sucb instrument was in fact ever executed.” Tbe testimony in this appeal tends to establish every fact, tbe absence of which is made tbe basis of tbe refusal to grant relief in that case. In McCain v. Hill, 37 N. C., 176, relief was granted. Plaintiff is not “a purchaser for value,” as that term used in tbe registration laws has been defined by us. Fullenweider v. Roberts, 20 N. C., 278; Harris v. DeGraffinried, 33 N. C., 89; Potts v. Blackwell, 57 N. C., 58; Worthy v. Caddell, 76 N. C., 82. It is not suggested that $10 was, at tbe date of tbe deed to plaintiff, more than a nominal consideration. Tbe language of tbe deed excludes tbe suggestion that plaintiff supposed that be was buying more than a claim to tbe land; be bought with full notice that bis grantor disclaimed having title. A quitclaim deed by its terms puts tbe person taking it upon notice that be is getting a doubtful title.' Lumber Co. v. Price, 144 N. C. , 50.

It is not necessary to the decision of this case that the heirs of Eorrison be brought in. If the title is in them the plaintiff can confer no title to the easement or right of way, and must fail in bis suit. To bring them in would be to engraft a controversy in which the plaintiff has no possible concern. Our conclusion upon this question entitles the defendant to a new trial. As the case goes back for that purpose, it may be well to notice several other exceptions to prevent further delay in disposing of the controversy.

Defendant moved the court to dismiss the proceeding because it insists that two causes of action are joined in the petition— one for compensation" and the other for damages. We concur with the learned counsel for defendant that, in a proceeding for condemnation, being entirely statutory, a cause of action for damages, as for a trespass, cannot be joined. Tbe authorities cited in bis brief and commented upon in the oral argument sustain bim in tbis view. Allen v. Railroad, 102 N. C., 381; Land v. Railroad, 107 N. C., 72. It is also true tbat no new cause of action can be engrafted upon the petition in the Superior Court. Tbe proceeding must be conducted upon the petition as "filed, and no amendment cbanging its character or involving controversies between the parties, not germane to it, can be made in the Superior Court. New parties may be brought in if necessary to a final determination of the matters involved in the proceeding as instituted, as, for instance, the distribution of the compensation and perfecting the title to the right of way. While tbis is true, we do not follow counsel to the conclusion tbat the petition should be dismissed because irrelevant matter has been included. Such matter may and should be stricken out, so tbat the court may proceed to administer the rights of the parties without complication with such irrelevant matter. Tbe right of the owner of land subjected to an easement by a corporation in the exercise of the right of eminent domain is to have compensation for bis property or right to its full use, enjoyment and control. “Compensation and damages are sometimes used interchangeably to represent the purchase money paid for rights acquired by the eminent domain; but it is better to let 'compensation’ stand for purchase money and 'damages’ for indemnity for a trespass. Whatever confusion there may be in the use of terms, the difference between 'compensation’ and 'damages’ is frequently expressed in the rule tbat they shall not be ascertained in a single proceeding or suit.” Randolph on Em. Dom., sec. 222. We can see tbat a failure to keep the distinction in view may lead to confusion, resulting in injustice. Tbe compensation must be full and complete and include everything which affects the value of the property taken and in its relation to the entire property affected. Tn Brown v. Power Co., 140 N. C., 333, we bad occasion to consider the question and refer to what we there said and the authorities which we there cited. We concur with bis Honor in-refusing to dismiss the petition.

Upon another trial the question of compensation will be confined to the rule therein laid down. Tbe real question in such case is, what was a fair market value of the property before the road was constructed, and bow mucb is sucb value impaired by its construction? Tbe difference represents the amount wbicb should be paid to compensate the owner for wbat bas been taken. "Without undertaking to pass upon a number of exceptions lodged to bis Honor’s ruling in admitting testimony, we may say that, in our opinion, a rather wide range was allowed, probably by reason of the form of the petition and the issue. It is not material to inquire whether the entire tract, including the mica, is “taken” in the construction of the road. Any evidence wbicb aids the jury in fixing a fair market value of the land, and its diminution by the burden put upon it, is relevant and should be beard; any evidence wbicb does not measure up to this standard is calculated to confuse the minds of the jury, and should be excluded. This is as far as we can safely go in the present state of the case.

The court properly admitted the deed from Job Thomas to Abijah. The act of 1907 (chapter 83) cured any defect in the certificate. These curative acts have been uniformly sustained by the courts.

For the reasons pointed out, there must be a

New Trial.  