It is true the Court has held in McIntyre v. R. R., 67 N. C., 278, and other cases, that in an application to acquire a railroad right of way the statutory methods must be pursued, and this may still be the correct ruling as to the preliminary entry upon land and the acquisition of the same for such purposes, but it is also held, in numerous cases, that where a railroad or other public service corporation has made the entry, appropriated the right of way, constructed, its road and is operating the same, and neither party has seen fit to resort to the statutory method, the owner of the land has the right, at his election, to sue for permanent damages, and on payment of the same the easement will pass to the defendant. This was so held as to railroads in Caviness v. R. R., 172 N. C., 305; Bennett v. R. R., 170 N. C., 389; Porter v. R. R., 148 N. C., 563; Beasley v. R. R., 145 N. C., 272. As to telegraph companies in Phillips v. R. R., 130 N. C., 582. As to municipalities in the case of streets, etc., in Harper v. Lenoir, 152 N. C., 723. As to nuisances created by discharges of sewage where the right to do so may be protected by the exercise of the right of eminent domain, in Rhodes v. Durham, 165 N. C., 679. As to trespass by flow of water in cases where private right is subordinated to the public good, as in Greer v. Waterworks, 127 N. C., 349.
McIntyre and like cases were decided for the reason, chiefly, that at that time it was generally considered that the statutory proceeding was the only mode by which the companies could acquire a right of way and obtain protection from continued and ever repeated actions of trespass on the part of the owner, but later, when the Court had approved and emphasized the right of acquiring an easement in these cases by a suit for permanent damages and the payment of the same, as in Ridley v. R. R., 118 N. C., 996, and subsequent cases, it is regarded as correct doctrine that, where a defendant has entered, constructed its work and *642tbe right to occupy the property and to exercise the privilege is or may he protected by statutory right of eminent domain or by the existence of a superior right in the public; then, at the election of either, an action lies for permanent damages, and on payment of same an easement passes. Webb v. Chemical Co., 170 N. C., 665. Again, while the right of'an injured owner to sue and have his cause tried before the jury is clearly contemplated and conferred by the statute, the application to the board of commissioners is not essential to that right.
Under our system, county commissioners are not clothed with judicial powers and, representing the opposing side, they could not exercise them in such a case if they were. A petition to them, therefore, should he properly regarded as a preliminary step before an administrative hoard, and is in no sense jurisdictional in its nature. This being true, the defendants have waived their right to insist on such a protection by an absolute denial of plaintiff’s right, for by correct interpretation, these pleadings do deny plaintiff’s right and raise issues both as to her ownership of the land and as to the injury. "Why attempt a petition to an administrative board who, on the record, have denied plaintiff’s right and put her to proof on the essential questions involved? And, further, we incline to the opinion that the letter addressed to the board should be construed and held a sufficient compliance with the statute. While the proposal for settlement made by plaintiff in that letter calls it an arbitration, it clearly refers to the damages suffered and the sources of it; makes claim for the same and proposes further “that plaintiff is willing to have'this matter settled by arbitration by three good men who can assess the damages, this being the number specified in the statute.” “Three disinterested freeholders shall assess the damages” is the provision of the law, and we think the commissioners should have so construed her application and' responded to it by appointing the commissioners, or by having them selected by the sheriff as the statute requires. The powers given to the commissioners are very broad, and while they are in accord with the law on the subject (S. v. Jones, 139 N. C., ’613), when the numbers of people that may be affected are considered, these powers should not be too rigidly construed to the injury of the landowners.
• All of plaintiff’s lot, constituting her front yard of 7 feet, has been taken across its full width and the sidewalk laid at her very door. She has written a letter to the commissioners asking, in effect, that three jurors assess her damages, which has been denied by defendants. She then sue's, and both her ownership and damages are denied, and after she has recovered her damages before the jury, the defendant asks that her suit be dismissed and that she be directed to begin over and in some other ’way. • To what purpose or in what way? The statute provides that the *643petition is to be filed in 20 days after tbe road is ordered. If tbis should be held to be a jurisdictional requirement and is to be upheld as valid, the time is already elapsed and plaintiff is to have her front yard taken and be without any relief whatever.
The facts in evidence do not justify such a judgment nor should the Court uphold the position of the defendant.
Affirmed.