DOUGLAS, J., dissenting. The defendant, the Carolina Central Railway Company, was chartered in 1873, under chapter 75, Laws (624) 1872-'73. By the provisions of the act of incorporation, and also under chapter 225, Laws 1854-'55, the defendant being the purchaser of the Wilmington, Charlotte and Rutherford Railroad, the defendant was authorized to procure a right of way by either purchase or proceedings in condemnation. In both acts of Assembly it was also provided that, in the absence of any contracts in relation to the land through which the railway might pass, it would be presumed that the land over which the road might be constructed, together with a space of 100 feet on each side of the center of the railway, had been granted to the company by the owners, and that unless the owner at the time that part of the railway which might occupy the land, or those claiming under him, was finished, should apply for an assessment of the value of the land so taken, within two years next after that part of the road which might be on the land was finished, the owner, or those claiming under him, should be forever barred from recovering the land or having any assessment or compensation therefor. By section 9, chapter 75, Laws 1872-'73, the dwelling house and burial grounds were exempted from invasion on the part of the railway company, without the consent of the owner or the order of the Superior Court; and by the act of 1854-'55 the exemption was the residence and garden. The evidence in this case shows that the land, which *Page 443 was actually taken possession of by the defendant in 1892 or 1893, was within 100 feet from the center of the track, and was then used as a garden by the plaintiffs; and it was admitted by the plaintiffs that the garden, which is the subject-matter of the dispute, was used for railroad purposes, and was necessary for the conducting of its business and the enjoyment of its rights under its charter. But it was not attempted to be shown that the land was used as a garden when the road was finished upon the lands of the plaintiffs. It is immaterial, therefore, the constructive possession of the whole of the strip of land by the completing of the railroad track being in (625) the defendant, whether the actual possession in 1892 or 1893 was under act of 1854-'55 or the act of 1872-'73, as the land was not, at the time of the construction of the track, used either as a garden or as a burial ground. The use made of the land by the plaintiffs subsequent to the completion of the railroad track was subject to the after necessity of the use of the whole hundred feet, including the part which is the subject of this action, wherever it became necessary to be so used by the company for the purposes granted under the charter. When it became necessary for the defendant to take the land for the purposes averred in the answer and admitted by the plaintiffs, that is, for the purpose of conducting the defendant's business, it was authorized to do so. Sturgeon v. R. R., 120 N.C. 225;Shields v. R. R., 129 N.C. 1.
The plaintiffs, in the brief of their counsel, contended that if the plaintiffs were not entitled to recover the land they ought to be allowed compensation for the value of the land, as under condemnation proceedings. The complaint set forth simply the cause of action in the nature of ejectment, but there was a prayer for general relief. We think, however, that as there was a provision in both the acts referred to contemplating the assessment of damages, and furnishing the means of assessment, that remedy must be pursued, and that the plaintiffs were not entitled to it in the present action. In cases involving the right of eminent domain the common law remedy is superseded by the statutory remedy, and aggrieved parties are compelled to seek redress under provisions of the statute.McIntire v. R. R., 67 N.C. 287;Land v. R. R., 107 N.C. 72.
The provision for the assessment in the way of compensation for lands taken by the defendant under the acts referred to was by application to the clerk of the Superior Court of the county in which the land is situated, and the appointment of commissioners for that purpose. It is better for us to (626) say further that the plaintiffs in this case cannot recover *Page 444 in any form of procedure. Under both of the acts referred to married women and infants are not affected until two years after the removal of their respective disabilities; but when the railroad was completed through the land the land was the property of the husband of the feme plaintiff, and his right to have assessment as for compensation was barred at the end of two years from the completion of the road. His conveyance to his wife, thefeme plaintiff, was of date of 1893, long after the road was completed.
The ruling of his Honor, which resulted in a nonsuit, was proper, as was the judgment.
No error.