When this case was before us on a former appeal (109 N.C. 52) it was held that the defendant acquired no title to the right of way under the deed of the mortgagor, and that the mortgage having been foreclosed, the title to the land became vested in the plaintiff, who purchased at the foreclosure sale. We also held that, under the general railroad act (the provisions of which control this case), the simple entry and occupation of the defendant conferred (696) upon it no right to the easement, and that this could only be acquired by grant or by virtue of proceedings to condemn. *Page 426 This being so, it is plain that unless an easement is acquired in some way by the defendant it has no legal right to occupy any part of the plaintiff's land; and as this right is to be acquired in this proceeding it must follow that compensation must be awarded the plaintiff, not only for the land actually occupied, but also for damages to her adjoining land, as in other cases. The plaintiff, as we remarked on the former appeal, can recover no damages incident to the entry, such as the destruction of crops and the like, nor for use and occupation before she acquired title. These damages are personal to the owner — "fruit fallen" — and do not pass to his grantee. The plaintiff is not seeking to recover such damages in this action, but simply compensation for an easement, which the defendant is now to acquire in her land; and if the enjoyment of this easement will have the effect of injuring the adjoining lands of the plaintiff, it must follow that such damages must also be assessed. Counsel for defendant contended that, conceding this to be true, there was error in submitting issues which comprehended other elements of damage, and that the jury might have included the damages personal to the former owner. In answer to this proposition it is only necessary to say that there was no evidence of any damage except for the land taken and the injury to the adjoining land. It is further to be noted that there is no exception whatever as to the measure of damages nor to the charge of the court, "the only point raised being that the plaintiff should be limited to the value of the land actually taken."
As the leading principle governing the case was examined and (697) passed upon in the opinion upon the former hearing, it is unnecessary to enter into a more elaborate discussion of the subject.
We will remark, however, that a different rule prevails where a right is acquired by the entry alone, leaving the damages to be subsequently assessed; and the authorities, therefore, from such jurisdictions are not in point. It may further be observed that, if the previous owner had sued for permanent damages by reason of the location and construction of the road, he would by such act have conferred the easement upon the defendant.White v. R. R., 113 N.C. 610-622. Such does not appear in this case, and we can see no error in the ruling of the court. The exception relating to the right of a jury trial upon the exceptions of the commissioners was abandoned on the argument.
Affirmed.
Cited: Phillips v. Tel. Co., 130 N.C. 526; Drake v. Howell, 133 N.C. 168;Clegg v. R. R., 135 N.C. 157; Beal v. R. R., 136 N.C. 299; Porterv. R. R., 148 N.C. 566; Daniels v. R. R., 158 N.C. 426; Lloyd v.Venable, 168 N.C. 536; Caveness v. R. R., 172 N.C. 309. *Page 427