The plaintiff seeks to recover damages of the defendant for constructing its road over his land. That poi1tion of the road was finished in 1854.
This action was brought to the November Term, 1857, of the former Court of Pleas and Quarter Sessions, for the county of Johnson.
The 29th section of the Act incorporating the North Carolina Railroad Company, declares that in the absence of any contract, &c., it shall be presumed that the land upon which the road or any of its branches may be constructed, together with a space of one hundred feet on eacli side of the centre r* 11 t i . i. % ■ .i i. 11 „ ■* • Ol. LUÜ btlrlCL jLOclUj U£ID UCon ^ j. cUULuOU uiiO btirlU. UJ ULiO owner or owners thereof; and the said company shall have good right and title thereto) and shall have, hold and enjoy the same, as long as the same be used for the purposes of said road, and no longer, unless the person or persons owning the said land at the time that part of the said road, which may be on the said land, was finished, or those claiming under him, her, *513or them, shall apply for an assessment of the value of the said hands, as hereinbefore directed, within two years next after that part of said road, which may be on the said land, was finished; and in case the said owner or owners, or those claiming under him, her, or them, shall not apply within two years next after the said part was finished, he, she, or they shall be forever barred from recovering said land, or having any assessment or compensation therefor, &c., with a saving in favor of feme avert* and infants, until two years after the removal of their respective disabilities.
This is a positive statute of limitations, and it clearly bars the plaintiff’s action, unless it be saved by the special circumstances relied upon by the plaintiff for that purpose, which are stated in the case agreed, and which the reporter will set foidh in full. The plaintiff has not been vigilant, and if he has lost any thing by sleeping on his rights, we can only say, the law is so written.
Although the defendants in this action had, in 1855, instituted proceedings in another and different court from that to which this action was brought, to-wit: in the Superior Court, to have the land of the then defendant, now plaintiff, condemned under the 27th section of its charter, that did not prevent the plaintiff from proceeding, under the 29th section, as he afterwards attempted to do in the County Court.
Whatever' the entry, “ dismissed without prejudice,” and the subsequent conversations of the defendant’s attorney, may-amount to, they certainly cannot operate to defeat a plain., positive statute of limitations.
Tatloe, C. J., in Jones v. Brodie, 3 Murph., 594, srysr. “ To all statutes of limitation, the principle has been Mtherto applied, that when they begin to run, nothing will stop their operation.”
This may sometimes operate harshly, but not more so than, in the numerous cases where it has been held that courts have no power to permit an amendment, when the proposed amend*514ment will evade or defeat the provisions of a statute. Cogdell v. Exum. 69 N. C. Rep., 464, and cases there cited.
Let the petition be dismissed, and judgment entered here against the plaintiff for costs, according to the case agreed.
Per Curiam. Petition dismissed.