
    VIRGINIA AND CAROLINA SOUTHERN RAILROAD COMPANY v. SEABOARD AIR LINE RAILROAD COMPANY.
    (Filed 2 April, 1913.)
    1. Railroads — Condemnation—Crossing Other Railroads — Sidings— Interpretation of Statutes.
    ■Where a railroad company is given by its charter the right to build its road, acquire rights of way by condemnation, etc., to intersect any other railroad upon the grounds thereof; to build sidings, switches, side-tracks, etc., and in making intersections with other railroads to have all the rights and privileges conferred upon railroads of this State, it is given authority, both by its charter and Revisal, 2556 (5) and (6), to condemn and acquire a right of way across the road of another company in order to construct a siding to manufacturing plants or other business enterprises for the handling of their freight. Butler v. Tobacco Oo., 152 N. C., 416, distinguished.
    2. Same — Mutual Consideration — Change of Crossing — Assessing Damages — Findings of Court — Questions for Jury.
    A railroad company having the power of condemnation across the road of another company should exercise this right with due regard to the convenience of both parties and with as little interference with the use of the other party of its own track as can be obtained without a great increase in its cost and inconvenience; and it appearing in this case that the defendant had a spur track or siding where the plaintiff company proposed to cross it, and that the plaintiff may reasonably be required to cross at a point beyond the end of the defendant’s spur, it is 
      Held that the trial court, in a reconsideration of this case, will ádjudge as to the feasibility of the suggested alteration of the plaintiff’s route, and call in the aid of the jury if necessary, any additional cost to the plaintiff to be considered in diminution of the defendant’s damages.
    3. Railroads — Condemnation — Crossing Other Roads — Immaterial M atters — Com pet it i o n — State Poli cy.
    Where a railroad company has a right to condemn a way across the track of another company to manufacturing plants or business places, for a side or spur track to which the other company also has its siding, in competition for freight, the question whether it is necessary for the plaintiff company to build its spur is one in its discretion; and controversies as to whether the defendant could and would shift the plaintiff’s cars on its own track advantageously to the plaintiff, and for a reasonable charge, are immaterial. Semble, it is the policy of the State to encourage competition among common carriers for the advantage of the public.
    Hoke, J., dissenting.
    Appeal by plaintiff from Peebles, J., at May Term, 1912, of ROBESON.
    
      McLean,, Varser & McLean for plaintiff.
    
    
      John D. Shaw and McIntyre, Lawrence .& Proctor for defendant.
    
   Claek, C. J.

This is a proceeding by tbe plaintiff to condemn a right of way across the track of the defendant in order to extend its track to the Lumberton Cotton Mills and the Kingsdale Lumber Company plants on the south side of the defendant’s track and to make connection with the Raleigh and Charleston Railroad Company’s track.

The plaintiff has a spur track at Lumberton extending over some 600 yards to the Dresden Cotton Mills on the north side of defendant’s track, and it wishes to extend it further to the two plants above named on the south side of defendant’s track, and to make connection on that side with another railroad, as above stated.. The petition was granted before the clerk, and on appeal before Goolce, J., an injunction was refused, and the commissioners proceeded to make the condemnation, who assessed defendant’s damages at $600. On the hearing before Peebles, J., on exceptions filed, tbe jury assessed tbe damages wbicb tbe defendant was entitled-to recover from tbe plaintiff at $300, but tbe judge reversed tbe order of tbe clerk and rendered judgment against tbe plaintiff.

Tbe defendant bas itself a spur track to botb these plants and tbe Raleigh and Charleston Railroad bas also a spur track to tbe Kingsdale Lumber Company plant. There is no reason why tbe plaintiff is not entitled to tbe same privileges, unless under the general law, or under its charter, it does not have tbe same power in this respect which bas been granted to tbe other two railroads. Indeed, tbe defendant’s brief frankly says that notwithstanding tbe voluminous record, “only one question is really presented,” and that is whether tbe plaintiff bas a right to build a spur track across the defendant’s line “to reach a cotton mill and lumber company, to tbe end that it may secure tbe freights therefrom.” Tbe real contest is thus frankly presented, wbicb is whether tbe plaintiff can interfere with tbe monopoly of the business from those plants.

Tbe defendant strongly urges that tbe plaintiff did not need this privilege, because tbe defendant would do tbe shifting of plaintiff’s cars over its own tracks to those points at so reasonable a rate that tbe plaintiff did not need to build its own track for that purpose. The plaintiff replied that tbe defendant bad been charging most exorbitantly for such service, and in view of this litigation it bad reduced its rates, but that it was delaying tbe plaintiff’s cars, on one excuse or another, so as to practically deprive it of tbe privilege, and that if it was denied tbe right to build its tracks that tbe defendant would then again raise its charges as to all interstate cars, wbicb was tbe bulk of tbe business, and that no relief could be bad. Tbe defendant, of course, denied any intention to do this. We cannot consider such arguments. Tbe only proposition before us is as to whether tbe plaintiff bas a right to build to those points, and if so, whether it is a wise expenditure for it to build such tracks is a matter for tbe consideration of the plaintiff alone, and not for the courts. As a matter of public policy, tbe State encourages competition among common carriers so that tbe public may have tbe resulting benefits: Industrial Siding Case, 140 N. C., 239; R. R. Connection Case, 137 N. C., 71, wbicb bold that a “railroad is created to subserve primarily the public good and convenience.” But we put our decision herein upon the wording of the statutes in determining whether the power claimed by the plaintiff is conferred.

There is no question as to the right of way, except across the defendant’s track, “for the plaintiff has acquired the right of way entire except at that point. Neither is there any question as to the consent of the city authorities of East Lumberton, for their ordinance granting the right of way through said town, which lies on both sides of defendant’s track, was tendered, but was 'refused by the judge upon the ground that the sole question was whether the plaintiff had the power, under the statute, to extend its track to the two plants in question, for if it had, the power to condemn across the defendant’s track was a necessary incident.

Private Laws 1903, chap. 233, sec. 2, as amended by Private Laws 1907, chap. 269, confers upon the plaintiff the right to “construct, maintain, or operate a railroad with one or more tracks from the town of Lumberton to some point on the main line of the Atlantic Coast Line,” and “also from any point on its main or branch lines to any point within the State of North Carolina.” It is also therein given the power “to connect its tracks with any other railroad and to lay down and use tracks through any town or city along its proposed lines with the consent of the corporate authorities thereof.”

The plaintiff also has the power under section 10, chapter 233, Private Laws 1903, “to cross at grade, or over or under, any other railroad constructed or that may, hereafter be constructed at any point on its road, and to intersect, join, or unite its line of railroad with any other railroad upon the grounds of such other companies, at any point on its route, and to build turnouts, sidings, switches, side-tracks or any other conveniences in furtherance of its objects of construction, and may in making intersection or connection with any other railroad have all the rights and privileges conferred upon railroads by the laws of this State.”

Section 11, chapter 233, Laws 1903, as amended by Private Laws 1907, chap. 269, further provides: “Whenever, for any cause, this company is unable to agree with the owners of the lands, or any- railroad owning any right of way, or any town or city owning any street or public way oner or near which it proposes to extend its road for the purchase of such lands for its depots, roadbeds, quarries, or other purposes of the company, the said company may file a petition before the clerk of the Superior Court,” etc.

The general act, Revisal, 2556 (5) and (6), confers on every railroad the power “to construct its road along or upon any stream of water,' street, highway, turnpike, railroad, or canal which the route of its road shall intersect or touch.”

“To cross, intersect, join, and unite its railroad with any other railroad before constructed at any point on its route, and upon the grounds of such other company, with the necessary turnouts, sidings, and switches and other conveniences in furtherance of the object of its construction. And every company whose railroad is or shall be hereafter intersected by any new railroad shall unite with the owners of such new railroad in forming such intersections and connections and grant the facilities aforesaid; and if' the two corporations cannot agree upon the amount of compensation to he made therefor, or the points and manner of such crossings and connections, the same shall he ascertained and determined by commissioners to be appointed by the court as provided in this section in respect to acquiring title to real estate.”

It seems clear, therefore, that the plaintiff had a right to extend its line southward to any distance or to any point it saw fit, and in so doing to cross the track of the defendant. It also has the right, both under the general law and under its charter, to extend its track to the plant of the Lumberton Cotton Mills and to the Kingsdale Lumber Company plant, and to make connection near-by with the Raleigh and Charleston Railroad Company. It has already acquired the rights of way for that purpose and has the permission of the corporate authorities of East Lumberton for that purpose. The right to cross the track of the intervening line of the defendant is also expressly conferred by tbe statute, and is a well-settled proposition of law. R. R. v. R. R., 83 N. C., 489; R. R. v. R. R., 104 N. C., 665; Lumber Co. v. Hines, 127 N. C., 132.

As tbe defendant itself bas built tracks for all three of these purposes, it is clear that tbe plaintiff bas exactly tbe same rights and power under tbe general law, and being, besides, expressly conferred under tbe provisions of its charter above set out. Butler v. Tobacco Co., 152 N. C., 416, relied upon by tbe defendant, is in no wise in point. In that case tbe railroad company bad its track in tbe middle of tbe street. It sought to lay down another and parallel track in tbe same street, “off its right of way,” using for part of tbe way even tbe sidewalk. This Court held that tbe property-owners could not be deprived of tbe use of tbe street by an unauthorized license by tbe town authorities to tbe railroad to build this side-track “off its right of way,” in order to facilitate tbe railroad taking freight from an industrial plant. In this case there is no attempt to appropriate a public street for tbe use , of a common carrier and for tbe benefit of an industrial plant to tbe inconvenience of the public.

Tbe defendant urges that it will be a great inconvenience to it for tbe plaintiff to condemn a right of way across its track at a point where it bas a siding, and thus interfere with tbe use of that siding for shifting and for placing box cars. Tbe plaintiff replies that tbe defendant has only recently extended-its side-track to that point and for tbe purpose of creating this grievance. However that may be, an examination of tbe map shows that less than 100 yards east of tbe point where tbe plaintiff seeks to cross tbe defendant’s track tbe defendant’s side-track ends and a public road crosses tbe defendant’s track at that point. There is no reason, so far as this evidence shows, why tbe plaintiff cannot extend its track on tbe north side of tbe defendant’s track before crossing, and condemn a right of way just beyond tbe end of defendant’s side-track near the point where tbe public road now crosses. While tbe plaintiff bas a right, both under its charter and tbe general law, to condemn a right of way across tbe defendant’s track, this right should be exercised with due regard to tbe convenience of both parties and with as little interference with, the defendant’s use of its tracks as can be obtained without a great increase in the cost and in its convenience to the plaintiff. We do not see that a requirement that the plaintiff should cross at the point herein suggested will add at all to the length of the plaintiff’s proposed extension of its track nor to the cost thereof. If it should, this matter can be considered by the judge and jury in the assessment of damages for crossing at said point. His Honor, in consideration of the case, when it goes back, will adjudge as to the feasibility of the suggested alteration in the route of the proposed extension of plaintiff’s tracks, calling in the aid of a jury, if necessary.

We need not consider the numerous other exceptions made in this case, for, as his Honor held and the briefs for both parties admit, there is but a single point upon which all other matters depend, and that is the one which we have discussed, as to the right conferred by statute upon the plaintiff to extend its tracks for the purposes above named.

The ruling of the court below must be set aside, and the cause will be proceeded in as indicated in this opinion.

Reversed.

HoKE, J., dissents.  