The determinative question presented here is the application of the statutes of limitation.
The learned judge who tried the case below charged the jury that the only statute available to the defendant was the twenty-year statute, and that in the absence of title by grant or condemnation, it could only acquire the easement to impose the servitude complained of on the land of plaintiffs by twenty years adverse user. And he further charged the jury, if they found the facts to be as shown by all the evidence, to answer the issue as to the statute of limitations against the defendant.
The defendant sets up in its answer and contends upon the evidence that plaintiffs’ cause of action is barred by the provisions of ch. 433, Public-Local Laws of 1923. This act is as follows:
“Sec. 1. That section four hundred and forty (440) of the Consolidated Statutes of North Carolina shall apply and be in full force and effect, and shall regulate all suits, actions, or proceedings brought or maintained against corporations under the laws of the State of North Carolina, whose business is the generation and transmission of electric power as a public service corporation. '
“See. 2. That no action shall be brought against any electric company chartered under the laws of this State and which has maintained its transmission lines for a term of two years prior to the enactment of this statute, for damages or compensation for rights of way or use and occupancy of any land by the company for use of its transmission lines unless the action or proceeding is commenced within six months after the passage of this act: Provided, that this act shall apply only to the counties of Yancey, Mitchell, and Haywood.”
This act was ratified 2 March, 1923.
The second section of G. S., 440, referred to in the above quoted act, is as follows :
“No suit, action, or proceeding shall be brought or maintained against a railroad company for damages caused by the construction of the road, or the repairs thereto, unless such suit, action, or proceeding is commenced within five years after the cause of action accrues, and the jury shall assess the entire amount of damages which the party aggrieved is entitled to recover by reason of the trespass on his property.”
There was competent evidence of injury to plaintiffs’ land by reason of the construction and maintenance of a substation and power lines, and that action therefor was brought within five years after their cause of action accrued. But defendant contends that section 2 of the act of
An examination of the second section of the act referred to, in the light of the facts as shown by the record before us, leads us to the conclusion that plaintiffs’ position on that point is correct.
This section purports to extend the benefit of the limitation to “any electric company chartered under the laws of this State,” thus giving privileges to a North Carolina corporation not permitted to others. Gulf, Col. R. Co. v. Ellis, 165 U. S., 154. However, it does not appear that the defendant is a North Carolina corporation. But we think the attempt to prescribe a statute of limitations limiting a landowner to six months after the passage of the act as the only period within which he could bring an action for compensation for wrongful use and occupancy of his land is in violation of the Fourteenth Amendment to the Constitution of the United States.
Under this provision of the Federal Constitution it is well settled that the Legislature may prescribe a limitation for the bringing of suits where none previously existed, as well as shorten the time within which suit to enforce existing causes of action may be commenced, provided, in each case a reasonable time, taking all the circumstances into consideration, be given by the new law for the commencement of suit before the bar takes effect. Wheeler v. Jackson, 137 U. S., 255; Turner v. New York, 168 U. S., 94; Saranac Land Co. v. Comptroller, 177 U. S., 318.
“Statutes of limitations affecting existing rights are not unconstitutional if a reasonable time is given for the commencement of an action before the bar takes effect.” In such cases the question is whether under all the circumstances the time allowed by the statute is reasonable. What is a reasonable time in a particular case depends upon its particular facts. Terry v. Anderson, 95 U. S., 628; Hozisek v. Brigham, 49 A. L. R., 1260, and note; Nichols v. R. R., 120 N. C., 495; Culbreth v. Downing, 121 N. C., 205.
In the present case, prior to the act of 1923, the only statute of limitation applicable was the twenty-year statute. That is, the plaintiffs had twenty years within which to bring their action for damages to their land caused by the structures erected by the defendant. And when the Legislature attempted to reduce that to six months and to prescribe that no action should be brought against an electric company for damages for occupancy of land unless the action should be commenced “within six months after the passage of this act,” that act must be held to be unrea- • sonable, violative of the rights guaranteed by the Constitution of the United States, and therefore void.
It follows, therefore, tbat tbe plaintiffs’ right to bring their action for compensation for damages caused by tbe construction of defendant’s power lines, or tbe repairs thereto, and tbe erection of tbe substation and structures complained of, is limited to tbe period of five years next after tbe cause of action accrued.
Tbe evidence as shown by tbe record in tbe case before us is conflicting and would not warrant tbe peremptory instructions given by tbe court below on tbe question of tbe statute of limitations, and requires tbe awarding of a new trial.
This disposition of tbe case renders unnecessary tbe consideration of tbe other assignments of error. Nor is it necessary to decide tbe other questions presented on tbe argument and by brief by plaintiffs and defendant, as there must be a
New trial.