December 13, 1929. The opinion of the Court was delivered by This case was tried before Hon. P.D. Barron, special Judge, at the March, 1928, term of Court for Spartanburg county.
It appears from the record that in the year 1925, pursuant to a general program of improvement, the defendant began the process of raising the grade of its road at several points along its line between the cities of Spartanburg and Laurens. At one point, its right-of-way, which extends 100 feet in each direction from the center of the track, passes over the lands of the plaintiff. In raising its grade at a place known as Arkwright Mills, one-half mile from and *Page 392 beyond plaintiff's lands, it became necessary to procure elsewhere earth, dirt, and building material. The defendant therefore excavated approximately 7,800 cubic yards of earth and dirt from a strip of land 30 feet wide and 480 feet long within its right-of-way through the lands of the plaintiff, and used such material solely for raising its grade at Arkwright Mills and adjacent points. This action was brought by the plaintiff for damages alleged to have been suffered by him by reason of the excavation and removal of the dirt, covering the value of the materials taken and the resulting damage to the remaining portion of his property.
At the proper time during the trial of the case, the defendant made a motion for a directed verdict, on the grounds that the company, under its deed to the right-of-way through plaintiff's land, had the right to remove dirt and building material from such right-of-way and to use same for railroad purposes at any point along its line; and that, if the deed could not be so construed, in any event the company had the right to so remove and use such dirt and building material when this became reasonably necessary in the building, repairing, or maintenance of its road; and that the company is the judge of such necessity.
The Court granted the motion, holding that the deed of conveyance upon which the company relied gave it no greater rights than it would take under condemnation, but that under either "the railroad would have the right to remove dirt from one point to another and off from the particular piece of land where the railroad runs for the construction of the roadbed." He also held that the testimony showed conclusively that the excavation and removal of the dirt was not only necessary for the building up of the grade at Arkwright Mills, but was also necessary and advisable so far as the safety of certain crossings over the defendant's road, on or near plaintiff's land, was concerned. *Page 393
The main appeal raises two questions: (1) When has a railroad company the right to remove earth or dirt excavated from its right-of-way passing over the lands of a particular owner and use the same elsewhere? (2) Was it proper under the testimony in this case to direct a verdict for the defendant?
As to the first question: It has been held that a railroad company has the right to use dirt or earth, excavated from its right-of-way, for the construction and maintenance of its road at any point through the property of the landowner, but that such right extends no further against each owner than the boundary of his land. See note in 45 L.R.A. (N.S.), 798, as to decision in Hendler v.Lehigh Valley R. Co., 209 Pa., 256, 58 A., 486, 103 Am. St. Rep., 1005. The general rule, supported by the great weight of authority, is that if it is necessary to remove material, such as earth or dirt, in the construction of the road on its established grade, or in changing the grade of a right-of-way, such material may be used by the company even on other parts of the road; but that, in the absence of such necessity, the company has no right to remove the earth simply for use elsewhere. See Hendrix v. Southern Railway,162 N.C. 9, 77 S.E., 1001; Chapin v. Railway Company,39 N.H. 564, 75 Am. Dec. 237; Cleveland, C., C. St.L.R. Co. v. Hadley, 179 Ind., 429, 101 N.E., 473, 45 L.R.A. (N.S.), 796.
As to the second question: The defendant's road had been long previously constructed through the lands now owned by plaintiff; and there was no testimony tending to show that the excavation and removal of the dirt now complained of was done for the purpose of changing the established grade of the road through such lands. But defendant offered as justification for such action that it was necessary for the promotion of safety in the operation of its road by improving the view to two public crossings on or near plaintiff's lands. Testimony making this issue was *Page 394 admitted without objection. But even on this issue, a directed verdict for the defendant was not proper, for the reason that there was testimony, brought out on cross-examination of defendant's witnesses, tending to show that the excavation and removal were made solely to obtain dirt and earth for the purpose of raising the grade of the road at Arkwright Mills, beyond the boundary of plaintiff's lands.
The trial Judge also erred in his order settling the case for appeal, in refusing to allow the appellant to have printed in the record testimony offered by him tending to show that the excavation and removal of the dirt were not necessary for the maintenance or improvement of the road through plaintiff's land, but were done solely to procure dirt for use elsewhere. Any such testimony was pertinent and should have been printed as a part of the record for appeal.
Judgment reversed, and case remanded for a new trial.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and CARTER concur.
MR. JUSTICE COTHRAN dissents.