Upon the evidence the court should have instructed the jury to return a verdict of not guilty.
The defendants were employees grading the right of way of the Watauga and Yadkin River Railroad Company, whose charter gave it the right to go upon land and construct its road before instituting condemnation proceedings. Its amended charter giving the above powers is chapter 11, Pr. Laws 1913, which amended the previous charter, chapter 411, Pr. Laws 1905, and contains this provision: “And said railroad company shall not be required to institute proceedings for the condemnation of lands prior to the time of entering upon the lands of any person for the purpose of constructing its line of railroad.” This provision of its charter has been recently upheld in R. R. v. Ferguson, 169 N. C., 70.
The court was possibly misled by S. v. Davenport, 156 N. C., 596, where it was held that the entry into the possession of another by force, *755no matter bow that possession was obtained, for wbat purpose, or bow long exercised, would make tbe defendants guilty. In that case tbe alleged trespass was on bebalf of a lumber company wbieb did not possess tbe right of eminent domain. But bere tbe defendants have entered under tbe right of eminent domain, and tbe company was entitled to possession, having surveyed and located tbe right of way and entered thereupon for the- construction of tbe road.
Tbe prosecutor bad been successful by bis restraining order in preventing tbe locating of tbe road on bis side of tbe creek between bis dwelling and tbe stream. Tbe railroad company bad then changed its location of tbe right of way to tbe other side of tbe creek, and tbe restraining order against tbe company from using that location, which tbe prosecutor bad sued out, bad been dissolved on 26 August by tbe judge, who bad thus upheld tbe legality of possession of tbe right of way by tbe railroad company. Tbe resort of tbe prosecutor thereafter to bis “shotgun injunction,” with tbe accompaniment of barbed-wire entanglements and trench, could not make tbe possession of tbe railroad company illegal nor reverse tbe action of tbe judge in dissolving tbe restraining order.
IJpon tbe facts in this case there was a forcible trespass, but it was not by these defendants. Tbe prosecutor was tbe party liable to indictment. Tbe right of eminent domain is in tbe State, and was conferred by it upon this railroad company rightfully, as tbe construction of a railroad is “for a public purpose.” This location did not come under any of tbe exceptions in tbe statute, Revisal, 2587. It did not invade any dwelling-house, yard, kitchen, garden, or burial ground.
In refusing tbe motion to nonsuit there was
Error.