because there is a large agricultural interest to be sustained.. Tanneries, woolen factories, oil refineries, distilleries, packing houses, and machine shops of almost every conceivable kind would be entitled to some consideration for the same reasons; thereby actually destroying any distinctions between public and private use, for the principle in one instance is the same as in the other. The difference is only in degree.

ed to safeguard, and to render such rights | for manufacturing the cereals of the state, as uncertain and varying as are the interests of different localities and opinions of different judges on different branches of business. Under such a rule, an act might be construed to be legal one year, because a certain business was found to be profitable to the community at large, and the next year held void because it appeared that the business was not a paying one. The Constitution is the fundamental law. Its enactments, whether they constitute grants or limitations, are presumed to be stable and uniform, and to constitute a check on the more mutable sentiment and actions of members of different legislatures. And it seems to us that the result of such a construction would be a virtual removal of any constitutional inhibition on legislative power in this respect, leaving the legislative will as free and untrammeled as in those states where the legislatures are permitted to act in consonance with the inherent power of sovereignty, and no constitutional enactments have intervened. It was, no doubt, for the purpose of preventing enthusiastic legislation, practically destroying this limitation, that the question of public use was especially submitted to the courts, who are and should be ever watchful in maintaining inviolate the constitutional rights of the citizen. It cannot be that, within the meaning of the Constitution, the distinction between public policy, and public use is to be obliterated. It might be of unquestionable public policy, and for the best interests of the state, to allow condemnation of lands in every instance where it would result in aiding prosperous business enterprises which would give employment to labor, stimulate trade, increase property values, and thereby increase the revenues of the state, even if the enterprise were purely private, for such is the relation, under our form of government, between public and private prosperity that one cannot be enjoyed to any appreciable extent without favorably influencing the othBut it is evident that this was not the kind of public use that was within the minds of the framers of the Constitution, and it seems to us that the logic of those courts which have sustained appellants contention is justified solely on grounds of public policy.

er.

So many of the cases cited by both appellant and respondents have been decided on so many different theories and branches of the law that it is unprofitable to specially notice them here. There are, however, many cases that directly deny the doctrine laid down in the Nevada case, supra, and we think that the consensus of judicial opinion is opposed to such liberal construction. As showing the confusion which would arise from such a construction, in our sister state of Oregon, where large timber interests predominate, as they do in this state, it was held in Apex Transp. Co. v. Garbade, 32 Or. 582, 62 L. R. A. 513, 52 Pac. 573, 54 Pac. 367, that the law providing that any corporation organized to transport timber or wood should have the right to construct railroads and tramways, which should be deemed for the public use, subject to corporate rights to toll, and giving such corporations the right of condemnation which railways possess, was void under the constitutional provision in relation to public use; the court saying that, while it is difficult to give an exact definition of "public use," within the meaning of the Constitution, no rule founded on the adjudged cases could be so framed as to include the case under consideration; citing Lewis, Em. Dom. § 165; Thomp. Corp. § 5593; Cooley, Const. Lim. *532; Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205, 34 L. R. A. 368, 60 Am. St. Rep. 818, 46 Pac. 790, and many other cases. In California it has been held that rights of way for mining purposes could not be condemned, under a similar constitutional provision. Much more in accordance with sound reasoning, and even with true public policy, when considered in its broadest sense, is the language of the court in Bloodgood v. Mohawk & H. River R. Co. 18 Wend. 9, 31 Am. Dec. 313, where, in discussing this question, it is said: "When we depart from the natural import of the term 'public use,'

It seems scarcely necessary to particularize to show to what extent this doctrine might practically be carried. Under such and substitute for the simple idea of a publiberal construction, the brewer could suc- lic possession and occupation that of pubcessfully demand condemnation of his neighbor's land for the purpose of the erection of a brewery, because, forsooth, many citi zens of the state are profitably engaged in the cultivation of hops. Condemnation would be in order for gristmills and for factories

lic utility, public interest, common benefit, general advantage or convenience, or that still more indefinite term public improvement, is there any limitation which can be set to the exertion of legislative will in the appropriation of private property? The mo

insert in this opinion. Mr. Cooley, under the head of "The Purpose" (p. 652), says: "Nor could it be of importance that the public would receive incidental benefits, such as usually spring from the improvement of lands or the establishment of prosperous private enterprises. The public use implies a possession, occupation, and enjoyment of the land by the public at large, or by public agencies; and a due protection to the rights of private property will preclude the government from seizing it in the hands of the owner, and turning it over to another, on vague grounds of public benefit to spring from the more profitable use to which the latter may devote it." The citation of near

be found in Cooley's Constitutional Limitations, and Lewis on Eminent Domain, and it is not necessary to reproduce them here. But from a consideration of all the authori ties, and from our own views on construetion, we are of the opinion that the use under consideration must be either a use by the public, or by some agency which is quasi public, and not simply a use which may incidentally or indirectly promote the public interest or general prosperity of the state.

ment the mode of its use is disregarded, | the same effect, which it is not practical to and we permit ourselves to be governed by speculations upon the benefits that may result to localities from the use which a man or set of men propose to make of the property of another, that moment we are afloat, without any certain principle to guide us." And again, after announcing the contention that the improvement proposed was of great value and usefulness, productive of increase of comfort and convenience to individuals, and wealth and power to communities, the court said: "But is tnis enough to justify the conclusion that, because the use to which it is dedicated by its owners accommodates individuals, and thereby advances the public interest, therefore it is such a public use that private property may be takenly all the cases bearing on this question will to promote it. Can the constitutional expression 'public use' be made synonymous with public improvement, or general convenience and advantage, without involving consequences inconsistent with the reasonable security of private property; much more, with that security which the Constitution guarantees? If an incidental benefit resulting to the public from the mode in which individuals in pursuit of their own interest use their property will constitute a public use of it, within the intention of the Consti- It is also contended by the appellant that, tution, it will be found very difficult to set if the court should conclude that this was limits to the power of appropriating private not such a public use as could be sustained, property." Mr. Cooley, in his Constitution- it has a right to this condemnation under al Limitations, and Mr. Elliott, in his work the provision of the statute in relation to on Eminent Domain, have given this subject private ways of necessity. It is contended special attention and reveiwed all the au- by the respondents that this action was not thorities bearing thereon; and, while de- brought under the statute in relation to contached expressions from these authorities demnation for private ways of necessity, and frequently made with reference to cases this seems to be true; but, outside of this cited, seem to sustain both contentions, yet technical point, the term "private way of the general deduction made is opposed to the necessity" must be construed with reference idea that public use and public benefit are to what was deemed a private way of nesynonymous terms. Mr. Lewis, in discuss- cessity at the time of the adoption of the ing this identical proposition, in § 165, after Constitution, or, in other words, the com giving a history of the earlier decisions, con- mon-law definition of a private way of necludes as follows: "Public use' means the cessity. The rights asked for here do not same as use by the public, and this, it seems fall within such definition. There is no eleto us, is the construction the words should ment of a grant in this case upon which receive in the constitutional provision in a private way of necessity is founded. “It question. The reasons which incline us to is founded on an implied grant." 2 Bl. this view are: First, that it accords with Com. (Hammond's small ed.) 79. "It is ei the primary and more commonly under-ther created by express words, or it is crestood meaning of the words; second, it accords with the general practice in regard to taking private property for public use in vogue when the phrase was first brought into use in the earlier Constitutions; third, it is the only view which gives the words any force as a limitation, or renders them capable of any definite and practical application. If the Constitution means that private property can be taken only for use by the public, it affords a definite guide to both the legis lature and the courts." And much more to

ated by operation of law as incident to the grant; so that in both cases the grant is the foundation to the title." 3 Kent, Com. 14th ed. *424. "A way of necessity can only be raised out of land granted or reserved by the grantor, but not out of the land of a stranger. For, if one owns land to which he has no access except over lands of a stranger, he has not thereby any right to go across these for the purpose of reaching his own." 2 Washb. Real Prop. 5th ed. p. 320. "It has never, we think, been decided in any

We have not overlooked the motion of respondents to dismiss this cause on the ground that the order is not appealable, but, with the view we have taken on the merits of the case, it is not necessary to discuss the question raised in the motion, and, for the reason that other cases of similar import are pending in this court, we thought it best to decide the case on its merits.

case that private property could be con- | 373; Osborn v. Hart, 24 Wis. 89, 1 Am. demned for a private road for the exclusive Rep. 161; Taylor v. Porter, 4 Hill, 140, 40 use of the applicant, and we know of no| Am. Dec. 274; Long v. Billings, 7 Wash. principle upon which such a proceeding can 267, 34 Pac. 936. be justified." Lewis, Em. Dom. p. 233. “A way of necessity, when the nature of it is considered, will be found to be nothing else but a way of grant. It derives its origin from a grant, for there seems to be no difference where a thing is granted by express words, and where by operation of law it passes as incident to the grant." Chitty's Notes to Blackstone's Commentaries, *36. "The statute authorizing the location of private roads, as far as it provides for the exercise of the rights of eminent domain to establish them, is unconstitutional." Wild v. Deig, 43 Ind. 455 (syllabus), 13 Am. Rep. 399. See also Dickey v. Tennison, 27 Mo.and Hadley, JJ., concur.

The court not having committed error in sustaining the demurrer to the complaint, the judgment is affirmed.

Fullerton, Ch. J., and Anders, Mount,

NORTH CAROLINA SUPREME COURT.

E. H. PARKER

v.

ATLANTIC COAST LINE RAILROAD
COMPANY, Appt.

(133 N. C. 335.)

1. Whether or not an opinion shall be
filed in the decision of a case is a matter
of discretion with the supreme court.
2. A carrier cannot contract for ex-
emption from liability for injuries caused
by delays due to its own negligence.
3. A carrier has the burden of show-
ing diligence to avoid delay in the trans-
portation and delivery of perishable freight.
4. Contract limitations of a carrier's
liability, being in derogation of the com-
mon law, are strictly construed in favor of
the shipper, and are never enforced unless
shown to be reasonable.

5. A stipulation in a contract to carry
perishable freight that it must be at
owner's risk is void where those are the only
terms upon which the carrier would under-
take the service.

6. A stipulation that copies of a news

paper may be introduced in evidence in an action for loss of perishable freight because of alleged negligence of the carrier, upon the question of the condition of the "market and market value," is sufficient to admit them in proof of surrounding facts and NOTE.-For other cases in this series as to right of carrier to limit its common-law liabil

ity for negligence, see Ballou v. Earle, 14 L. R. A. 433, and note; Alair v. Northern P. R. Co. 19 L. R. A. 764; J. J. Douglass Co. v. Minnesota Transfer R. Co. 30 L. R. A. 860; Pierce v. Southern P. Co. 40 L. R. A. 350; Harman Crockett v. Norfolk & W. R. Co. 44 L. R. A.

circumstances that directly tend to affect the value of the freight upon the market.

7. A carrier cannot, by contract, exempt itself from liability for damages to property received for transportation which directly result from its own negligence, whether it occurs before or after the property is received.

8. Statutes imposing a penalty on carriers for refusal to accept freight offered for transportation do not limit the commonlaw liability of the carrier.

9. Assent by the shipper to a condition in the carriage contract that the goods are subject to delay is immaterial if it has no legal effect.

10. If a carrier attempts to excuse delay in transporting freight by the existence of a strike among employees at a terminal, the shipper may show the means taken by other carriers to avoid the effects of the strike.

(November 10, 1903.)

PPEAL by defendant from a judgment A of the Superior Court for Wayne County in plaintiff's favor in an action brought to recover damages for injury to freight which had been delivered to defendant for transportation. Affirmed.

Plaintiff, through his agent, offered to defendant for shipment at Dudley, North Carolina, a car load of watermelons conAt the time of this signed to New York. offer defendant's northern connections were congested with an accumulation of melons, and defendant had posted a notice that no more melons would be received for trans

289; Central R. Co. v. Murphey & Hunt, 53 portation, except subject to delay.

L. R. A. 720; and Ullman v. Chicago & N. W.
R. Co. 56 L. R. A. 246.

De

fendant issued for the melons received from plaintiff's agent a bill of lading across

ticular. If so, a written opinion would | 365; Constable v. National S. S. Co. 154 U. enable it to repair its practice, if it is re- S. 51, 62, 38 L. ed. 903, 910, 14 Sup. Ct. miss, and provide against a repetition of the Rep. 1062. In Gardner v. Southern R. Co. circumstances that brought about this and 127 N. C. 293, 37 S. E. 328, the court says the various other cases brought against it in on page 296, 127 N. C., page 329, 37 S. E.: this respect. Without such a written "It is a well-settled rule of law, practically opinion, this petitioner is powerless to de- of universal acceptance, that, for reasons of termine wherein it has been remiss, if it has public policy, a common carrier is not perbeen, for this court has not enunciated the mitted, even by express stipulation, to exmatter in which the law has been neglected empt itself from loss occasioned by its own or violated. Your petitioner therefore negligence." Hale, Bailments & Carriers, § urges, with all respect, but with emphasis, 90, thus lays down the rule: "By express that an opinion is necessary in this case, agreement, common carriers may limit their not only for a determination of the case at liability to that of ordinary bailees for hire; bar, but as a guide for future transactions but they cannot stipulate against liability within this state." for negligence either of themselves, or of their agents or servants." Again, the same author says in § 82: "Even where the loss is caused by a peril against which carriers are not insurers, they are nevertheless liable, if they fail to use reasonable care and diligence to avoid all perils, including the excepted perils.”

In the discussion of the principles in volved in this case, we will follow the order in which they appear in the petition. It says: "Your petitioner respectfully points out the following as questions that arise in the determination of this case, which have not heretofore been passed upon by this court: (2) Principles of law not heretofore decided in North Carolina. (a) Whether this plaintiff, by scunding his action in tort, can thereby annul and render of no effect the terms of the contract he has made with the carrier."

The first issue was, "Did the defendant exercise due diligence, under all the circumstances, to avoid delay in carrying and delivering plaintiff's melons?" To this the jury answered, "No." The burden of this issue was upon the defendant. Mitchell v. Carolina C. R. Co. 124 N. C. 236, 44 L. R. A. 515, 32 S. E. 671; Hinkle v. Southern R. Co. 126 N. C. 932, 78 Am. St. Rep. 685, 36 S. E. 348, and cases there cited. The rule is clearly laid down in 2 Greenleaf on Evidence, § 219, as follows: "If the acceptance

We do not think that this question is before us,--certainly not in the form in which it is stated. It assumes that there was a valid contract existing between the plaintiff and defendant, whereby the defendant was relieved from all damages resulting from delay, no matter from what cause such delay was special, the burden of proof is might arise. In our opinion, there was no still on the carrier to show, not only that such contract. It is true that the the cause of the loss was within the terms words, "Subject to delay," were written on of the exception, but also that there was on the bill of lading, but we do not think that his part no negligence or want of due care." they modified its essential character. If The rule is thus stated in 5 Am. & Eng. they meant that the melons were accepted Enc. Law, 2d ed. p. 254: "It seems, howfor shipment subject to delays arising from ever, that on proof of a delay in delivery a causes beyond the control of the carrier, prima facie case is made out against the they merely expressed one phase of the car-carrier, and the burden of proof rests upon rier's liability under an ordinary "Owner's it to show that the delay was from a cause risk" bill of lading. If such indorsement was intended to relieve the carrier from liability for delay arising from its own negligence, it would not be enforceable.

Rocky Mount Mills v. Wilmington & W. R. Co. 119 N. C. 693, 56 Am. St. Rep. 682, 25 S. E. 854; Mitchell v. Carolina C. R. Co. 124 N. C. 236, 44 L. R. A. 515, 32 S. E. 671; Gardner v. Southern R. Co. 127 N. C. 293, 37 S. E. 328; Hart v. Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 717, 5 Sup. Ct. Rep. 151; Phœnix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 322, 29 L. ed. 878, 6 Sup. Ct. Rep. 750, 1176; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469; California Ins. Co. v. Union Compress Co. 133 U. S. 387, 415, 33 L. ed. 730, 737, 10 Sup. Ct. Rep.

for which it was not responsible. It rests on the carrier for the additional reason that such facts are peculiarly within the knowledge of the carrier, and not easily ascertained by a shipper." In Hinkle v. Southern R. Co. 126 N. C. 932, 78 Am. St. Rep. 685, 36 S. E. 348, this court says on page 938, 126 N. C., page 688, 78 Am. St. Rep., and page 350, 36 S. E.: "This rule, which is the natural result of the prima facie liability of the common carrier, is further strengthened by the universal acceptance of the principle that where a particular fact, necessary to be proved, rests peculiarly within the knowledge of a party, upon him rests the burden of proof. 5 Am. & Eng. Enc. Law, 2d ed. p. 41; Best, Ev. § 274; 1 Greenl. Ev. § 79; Starkie, Ev. § 589; Rice, Ev. §