This action was begun in the Superior Court of New Hanover County on 15 July, 1929. It was begun and prosecuted in the name of the State of North Carolina by the Transportation Advisory Commission, as an agency of the State organized under the provisions of chapter 266, Public Laws of North Carolina, 1925. This statute is entitled, “An act to create an Advisory Commission to investigate and report upon the question of freight rate discrimination and upon the question of the development of waterways.” The Commission was expressly directed to investigate and report to the Governor “what action, if any, the State can safely and properly take in cooperation with the Federal Government or otherwise, to aid in the development of water transportation to and from North Carolina ports.” The statute became effective on 10 March, 1925, and since said date has been in full force and effect.
The Congress of the United States in the Eiver and Harbor Act, which was approved on 21 January, 1927, authorized the construction by the Federal Government of an inland waterway or inter-coastal canal, in accordance with surveys and reports made by United States engineers, in aid of interstate commerce by water transportation, provided the right of way for such inland waterway or canal was furnished by local interests, without cost to the United States. This inland waterway or inter-coastal canal, as located by the engineers, and as authorized by Congress, extended in part from Beaufort to Cape Fear Eiver, in North Carolina. By the provisions of chapter 44, Public Laws of North Carolina, 1927, as amended by chapters 4 and 7, Public Laws of North Carolina, 1929, the General Assembly of this State undertook to furnish to the United States, without cost to the Federal Government, the right of way for said waterway or canal from Beaufort to Cape Fear Eiver, and to that end authorized and directed the Transportation Advisory Commission to secure such right of way, either by agreement with the owners of lands over which the right of way was located, or by condemnation under the power of eminent domain, conferred upon the said Commission for that purpose.
*267This action was begun to secure tbe right of way for said inland waterway or inter-coastal canal over tbe lands described in tbe complaint. Tbe defendants were in possession of said lands, claiming tbe title thereto in fee. Tbe plaintiffs denied that tbe defendants were tbe owners of said lairds, and alleged that tbe State bad tbe right to take possession of tbe same without paying compensation or damages to tbe defendants. In an appeal by tbe defendants to this Court from an order made in tbe action by Grady, J., at September Term, 1929, of tbe Superior Court of New Hanover County, it was held that tbe facts stated in tbe complaint are sufficient to constitute a cause of actionon which tbe plaintiffs are entitled to relief. Tbe validity of tbe statutes under which tbe action was begun and prosecuted, was upheld. Tbe order denying tbe motion of tbe defendants that tbe action be dismissed was affirmed. See Myers v. Causeway Co., 199 N. C., 169, 154 S. E., 74.
Since tbe appeal by tbe defendants from tbe order of Grady, J., was beard and decided by this Court, tbe action has been tried on tbe issues raised by tbe pleadings and involving tbe title to tbe lands described in tbe complaint. At this trial before Midyette, J., on tbe facts found by tbe court, it was adjudged that tbe defendants are tbe owners in fee of tbe lands described in tbe complaint, and taken by tbe plaintiff under tbe power of eminent domain. It was further adjudged that tbe defendants are entitled to just compensation for said lands, and to damages resulting from tbe taking of said lands by tbe plaintiff. It was ordered that tbe action be and tbe same was retained for trial of tbe issue involving tbe amount which tbe defendants are entitled to recover of tbe plaintiff as compensation and damages. Tbe judgment rendered by Judge Midyette is dated 25 May, 1931. This judgment has not been reversed or modified according to law, and is conclusive in all respects upon tbe parties to this action. C. S., 601.
On their appeal to this Court from tbe judgment of Judge Barnhill, tbe defendants contend that there is error in said judgment for that tbe court held as a matter of law that tbe defendants are not entitled to recover of tbe plaintiffs, as an element of their damages, tbe cost of tbe construction of tbe draw-bridge which tbe defendants were required to construct over tbe lands taken by tbe plaintiffs, under tbe power of eminent domain, in order to maintain their respective franchises as public-service corporations, and to preserve tbe value of their property not included within tbe right of way for tbe inland waterway or inter-coastal canal, which has been constructed by tbe United States Government. Tbe court did not include in tbe amount awarded to tbe defendants tbe cost of such bridge, nor did it find tbe reasonable cost of tbe construction of a bridge for that purpose, although there was evidence tending to show such cost. In this there was error. On all tbe facts *268appearing in tbe record, tbe amount reasonably expended by tbe defendants in tbe construction of tbe bridge over tbe right of way of tbe inland waterway or canal, in order to maintain their respective franchises as public-service corporations, and to preserve tbe value of their property not included in tbe right of way, is a proper element of tbe damages which tbe defendants are entitled to recover in this action. In order that such amount may be found by tbe court, and included in tbe judgment, this action is remanded to tbe Superior Court of New Hanover County.
Error and remanded.