HOKE, J., concurring in part; ALLEN, J., concurring in opinion of HOKE, J.; CLARK, C. J., filing concurring opinion. "After hearing the allegations of the complaint and considering the affidavits filed, the court finds that there is a bona fide controversy as to the rights of the plaintiff to enter upon land claimed by defendant for the purpose of constructing the additional track which it (259) *Page 308 desires to construct. The right is asserted by the plaintiff and denied by the defendant. The court finds as a fact that the land is actually needed in good faith for railroad purposes.
"Upon consideration of all of which it is adjudged, ordered, and decreed that the defendant, his agents and servants, be and they are hereby restrained and enjoined, until the final hearing of this cause, from interfering with any of the operations of the plaintiff company upon any of the land claimed by both parties as far as twenty-nine(29) feet westwardly from the center of the present track of the plaintiff company, seven(7) feet of which twenty-nine (29) feet is to form the base of the slope and six(6) feet of it is to be used for ditch and leveling of track between where the seven (7) feet gives out and the westwardly side of the track is to be laid.
"It is further considered and adjudged that the plaintiff shall leave safe and sufficient support for the underpinning of the house, in so far as any of it may be interfered with by the construction of the track, leveling and sloping as above provided for.
"The court finds as a fact that the westward end of the cross-ties for some distance when laid as the plaintiff proposes to lay them will be inside of the yard inclosure of the defendant Thompson, and, of course, the slope between the end of the cross-ties and the westward limit of said twenty-nine (29) feet.
"It is further ordered and decreed that the plaintiff company shall execute bond in the sum of two thousand dollars ($2,000), conditioned to pay to the defendant any and all sums which may be recovered as damages, if any, of the plaintiff in this action by reason of the granting of the restraining order and injunction and the wrongful appropriation, if any, of the defendant's land to the use which the plaintiff company proposes to make of it.
"Upon giving of said bond the plaintiff company is allowed to proceed with its work, and the defendant, his agents and servants, are restrained and enjoined until the final hearing of this action from in any way interfering with the operations of the plaintiff within the limits above provided for."
From this order the defendant appealed.
Upon the hearing in this Court the following affidavit is offered by plaintiff:
"Vance Sykes, being duly sworn, says that he is a civil engineer in the employ of the Seaboard Air Line Railway Company and has been in charge of the work of constructing an additional track from Johnson Street in the city of Raleigh to the Boylan Avenue Bridge in said (260) city; that he was in charge of said work at the time the restraining *Page 309 order was entered in this cause ; that upon said restraining order being granted, the Seaboard Air Line Railway Company proceeded with the construction of its track upon the property involved in this action, and the construction of said track had since been completed and trains are now being operated over said track; that the track as now constructed is of a permanent character and is permanently located upon the land involved in this action; that the said track has been constructed within the limits fixed by the restraining order granted by Judge Bond; that in the construction of said track it was found to be unnecessary to place any supports under the house occupied by the defendant in this action; that the use of the said track is necessary for the proper performance by the Seaboard Air Line Company of its duties to the public as a common carrier of passengers and freight, and is being used for such purposes."
It is not denied that, acting under the order of the Superior Court, the track has been completed and that trains are in full operation over it. The plaintiff contends that the land in controversy is a part of its right of way, and that it has become necessary in the discharge of its duties to the public as a common carrier to occupy it for the operation of its train service.
The plaintiff contends that its predecessor, the Raleigh and Gaston Railroad Company, under the act of 1852, ch. 145, is granted "the same means of purchasing or condemning land, etc., as are provided in the act incorporating the North Carolina Railroad Company," including the right to acquire title by failure of the landowner to apply for an assessment within two years after the track is finished.
The plaintiff further contends that section 30 of chapter 82 of the Public Laws of 1848-49, incorporating the North Carolina Railroad Company, became a part of the charter of the Raleigh and Gaston Railroad Company by virtue of the enactment of section 18 of chapter 140 of the Laws of 1852. Section 30 of the act incorporating the North Carolina Railroad provides as follows:
"That all lands not heretofore granted to any person, nor appropriated by law to the use of the State, within 100 feet of the center of said road, which may be constructed by the said company, shall vest in the company as soon as the line of the road is definitely laid out through it, and any grant of said land thereafter shall be void." It is set (261) forth in the complaint and not denied that at the time of the *Page 310 construction of the connection track by the Raleigh and Gaston Railroad Company, the property in controversy in this connection belonged to the State of North Carolina, and the effect of the above section was to vest in the Raleigh and Gaston Railroad, its predecessor, a right of way of the width of 100 feet on each side of the center of its track.
The answer of defendant denies the principal allegations of the complaint and admits the possession of the defendant. Upon considering the pleadings and affidavits offered, the judge made the findings and order above set out, holding that the construction of the road should not be enjoined until the final hearing, and requiring plaintiff to enter into an indemnifying bond.
It appearing to us that since the order of the Superior Court was made the plaintiff has constructed its track according to the terms of said order and is now operating its trains over it, we are not disposed to reverse the order and dissolve the injunction, but will let the controversy over the land be settled upon a final hearing and not upon an appeal from an interlocutory order. Serious injury to plaintiff and to the public may result from an interference now with the operation of the railway. Whatever damage that can be done to defendant has already been sustained, and to now dissolve the injunction would do defendant no good. His injury cannot be said to be entirely irreparable and he is fully protected by a good and sufficient bond.
Courts are loath to interfere with the construction and operation of railroads and other works, of great public importance. Commenting upon the exercise of this jurisdiction, Mr. High, sec. 598, says: "Courts of equity are frequently called upon to interfere by injunction with the construction of railroads in such manner or under such circumstances as would be productive of irreparable injury. In exercising its jurisdiction over cases of this nature a court of equity will in the use of a sound discretion balance the relative inconvenience and injury which is likely to result from granting or withholding the writ, and will be largely governed by such circumstances in determining upon the relief. And where an injunction restraining the use of a railway would not only be productive of great injury to the railway company and to the public, but would result in no corresponding advantage to any one, not even to the persons asking such relief, it will not be granted. So where the work of constructing a railway is of great magnitude, and one involving large expense, if it is apparent that the injury which would result to defendant by granting the injunction in case the result should prove it to have been wrongly granted, would be greater than that which would result (262) to complainant from a refusal of the injunction, in the event of the legal right being proved to be in his favor, the court will not interpose." *Page 311
Again, the same writer says: "From the peculiar nature of works of public improvement and the serious injury that may result from any unwarranted interference with their construction, the jurisdiction in restraint of such works is exercised with great caution, keeping constantly in view the damage that may result from improperly restraining their operation." High on Injunctions sec. 615.
The same principle has been stated by our Court as follows: "It is contrary to the policy of the law to use the extraordinary powers of the court to arrest the development of industrial enterprises or the progress of works prosecuted apparently for the public good as well as for private gain." Lewis v. Lumber Co., 99 N.C. 11.
There are other cases in which this salutary principle is recognized.Navigation Co. v. Emry, 108 N.C. 130. In this case the Court further declares: "The courts have in many cases not unlike the present one granted relief by injunction pending the action, and when the evidence has left the material matter in dispute in doubt, this Court has generally directed the order granting such injunction to be affirmed. Here the defense alleged by the defendants is more than doubtful, but we are not to be understood as expressing any opinion upon the facts further than as may be proper in directing an affirmance of the order appealed from. Parker v. Parker,82 N.C. 165; Lumber Co. v. Wallace, 93 N.C. 22; Lewis v. Lumber Co., supra;Evans v. R. R., 96 N.C. 45; Whitaker v. Hill, ibid., 2."
The track having been already constructed in accordance with the order of the Superior Court, and the trains being in full operation over it, if we were to dissolve the injunction, the defendant could not remove the track and stop the operation of the trains by force, and under the circumstances of this case, we would not consider it advisable to interfere until the facts are all established and the rights of the parties have been adjudicated upon final hearing.
Affirmed. Cited: Greenville v. Highway Com., 196 N.C. 228.