
104 S.E.2d 181 (1958)
248 N.C. 577
Bryant N. THOMPSON and wife, Mae M. Thompson,
v.
SEABOARD AIR LINE RAILROAD COMPANY.
No. 463.
Supreme Court of North Carolina.
June 30, 1958.
*184 Douglass & McMillan, Raleigh, and Jones & Jones, Rockingham, for plaintiff appellees.
Bynum & Bynum, Rockingham, and Varser, McIntyre, Henry & Hedgepeth, Lumberton, for defendant appellant.
RODMAN, Justice.
While defendant brings forward 130 assignments of error, we think the basic question involved is presented by three of these *185 assignments: (1) Permitting the amendment to the complaint after the presentation of the evidence; (2) the motion to nonsuit; and (3) the court's instruction to the jury to answer the first issue in the affirmative.
A trial court may permit a pleading to be amended at any time unless the amendment in effect modifies or changes the cause of action and deprives defendant of a fair opportunity to assemble and present his evidence relative to the matters asserted in the amendment. G.S. § 1-163.
To determine the materiality of the amendment we examine the pleadings without the amendment to ascertain what issues arise on the pleadings. If the issues raised by the amended pleadings assert a different right of action presenting different issues, then the amendment is material, and defendant is entitled to an opportunity to prepare its defense and offer evidence on the issue so raised. Did the phrase "and for the use and benefit of the defendant," inserted in section 9 of the complaint add anything to the invasion of plaintiffs' rights as originally asserted? The answer to the question is found in the law which determines the motion to nonsuit and the propriety of the instructions with respect to the first issue.
What wrongful act was charged in the complaint and what defense did defendant assert? The basis of asserted liability is found in section 7 of the complaint. It alleges defendant took possession of two public streets in Hamlet on which plaintiff's property abutted and, by fills in these streets, denied plaintiffs access thereto. Defendant denied this allegation. The denial raised two questions: (a) were the areas public streets, and (b) did defendant make the fill? In addition and as an affirmative defense it asserted that the fill was made on its right of way in the lawful use of its property and in providing facilities for the public to cross its tracks.
When the case came to trial the parties by stipulation eliminated issues originally raised (a) as to plaintiffs' title to the area for which plaintiffs assert a right to recover, (b) the location of the line separating the right of way from the land owned absolutely by plaintiffs, (c) the nature of the area which plaintiff designated as Bridges Street, defendant conceding that it was a public way although established after the railroad was constructed, (d) that no liability existed for work done in the area designated as Railroad Street (presumably for the reason that it was not a public street but a way used with the permission of the railroad which it could terminate at any time.) The stipulation which the parties made reduced the issues touching liability raised by the complaint as originally drafted to this fundamental question: Did defendant change the grade of the street abutting plaintiffs' property outside and beyond the right of way? Viewed in the light of the stipulation, plaintiffs' claim, and the court's charge, this was the issue submitted to and answered by the jury.
The fact that the grade of Bridges Street was changed from a point south of the new wye to a point northwardly and outside of the right of way and across the front of plaintiffs' property is not controverted; nor is it controverted that the work was done by a contractor secured and paid by defendant.
Defendant insists that these admitted facts do not establish liability because (1) it had the right to make such fills on its right of way as it deemed appropriate in the conduct of its business; (2) in the exercise of its rights it could change the grade at Bridges Street within the bounds of its right of way; (3) the change in the elevation of Bridges Street within the right of way necessitated a change in the elevation beyond the right of way if the public was not to be deprived of the use of Bridges Street where it crossed the right of way; (4) the town had the right to change the grade of the street for public benefit and as it authorized or permitted defendant to change the grade, the permission so granted immunized defendant from liability.
*186 An analysis of defendant's position is necessary to pass on its assignments of error. Legal principles pertinent to the questions raised are, we think, well settled.
Defendant had a right to change the elevation of different portions of its right of way to suit its convenience. No liability exists for such changes. Brinkley v. Southern R. R. Co., 135 N.C. 654, 47 S. E. 791. That right is not here controverted.
Control of public ways (highways, streets, and navigable waters) is vested in the sovereign, the State, and subject to constitutional limitations, the Legislature may regulate the location, width, elevation, and use of these ways. Clayton v. Liggett & Meyers Tobacco Co., 225 N.C. 563, 35 S.E. 2d 691; F. S. Royster Guano Co. v. Lumber Co., 168 N.C. 337, 84 S.E. 346; Dalton v. George C. Brown & Co., 159 N.C. 175, 75 S.E. 40; Butler v. F. R. Penn Tobacco Co., 152 N.C. 416, 68 S.E. 12; Elizabeth City v. Banks, 150 N.C. 407, 64 S.E. 189, 22 L.R.A.,N.S., 925; State v. Yopp, 97 N. C. 477, 2 S.E. 458. The Legislature, in the exercise of its discretion, may delegate to a municipality or other agency its power to regulate and control for public use streets and highways. Victory Cab Co. v. Shaw, 232 N.C. 138, 59 S.E.2d 573; Suddreth v. Charlotte, 223 N.C. 630, 27 S.E.2d 650. The Legislature has authorized municipalities to control streets with the right to "make such improvements thereon as it may deem best for public good * * * and regulate, control, license, prohibit, and prevent digging in said street * * *" G.S. § 160-222.
When a city acts for public convenience under the authority granted it by the Legislature and raises or lowers the grade of a street, any diminution of access by an abutting property owner is damnum absque injuria. The abutting property owner can neither prevent the change by injunction nor recover damages for the diminished value of his property, when the work is done in conformity with plans designed to promote public convenience. Sanders v. Atlantic Coast Line R. R. Co., 216 N.C. 312, 4 S.E.2d 902; Jenkins v. Henderson, 214 N.C. 244, 199 S.E. 37; Calhoun v. State Highway Com'r, 208 N.C. 424, 181 S.E. 271; Wood v. Duke Land & Improvement Co., 165 N.C. 367, 81 S.E. 422; Jones v. Henderson, 147 N.C. 120, 60 S.E. 894; Tate v. Greensboro, 114 N.C. 392, 19 S.E. 767, 24 L.R.A. 671; Wright v. Wilmington, 92 N. C. 156, 160; Meares v. Wilmington, 31 N. C. 73; 18 Am.Jur. 841, 842.
The fact that Bridges Street, where it crossed defendant's right of way, was established subsequent to the location and construction of the railroad did not diminish its character as a public way. The railroad, after the street was established had no more right to impair or prevent its use than any other property owner would have to change the grade or interfere with the use of a street constructed by a city over his land. Presumably the railroad was duly compensated for the impairment of its property rights when the street was established. Atlantic Coast Line R. R. v. Goldsboro, 155 N.C. 356, 71 S.E. 514.
Legislative sanction is necessary before a railroad may occupy a public way. Edmonds v. Baltimore & P. R. R. Co., 114 U.S. 453, 5 S.Ct. 1098, 29 L.Ed. 216; Butler v. F. R. Penn. Tobacco Co., supra; Corporation Comm. v. Southern R. R., 153 N.C. 559, 69 S.E. 621; Pedrick v. Raleigh & P. S. R. R. Co., 143 N.C. 485, 55 S.E. 877, 10 L.R.A.,N.S. 554; 44 Am.Jur. 301, 74 C.J.S. Railroads § 104, pp. 512-513. Because of the benefit accruing to the public in the operation of railroads, the Legislature has granted to them the power to condemn private property, G.S. § 60-37(2), and to construct their roads across public ways, but with the mandate to "restore the * * street * * * thus intersected or touched, to its former state or to such state as not unnecessarily to have impaired its usefulness." G.S. § 60-37(6). This provision is supplemented by G.S. § 60-43 which again commands railroads, when crossing established *187 roads, to "so construct its works as not to impede the passage or transportation of persons or property along the same." This provision, inserted in the Act of 1852 incorporating the Western Railroad, was codified as a part of the public laws of the State in the Revised Code, c. 61, sec. 30. Similar provisions are to be found in the charters issued by the Legislature to railroads during the early part of the nineteenth century.
Notwithstanding the legislative authority and municipal approval for a public service corporation to use a street or highway if the use is such as to impose an additional burden or effect a taking of the property of an abutting owner, compensation must be paid.
Where a railroad accepts the benefits of statutory authorization and changes the grade of a street or highway it must assume and comply with the burden imposed and restore the street to a useful condition. If, to meet the burden so imposed, it becomes necessary to go beyond the railroad right of way and change the grade of a street, thereby impairing access of an abutting property owner, compensation must be paid for the diminution in value resulting from the denial of access.
The rule has been repeatedly applied to situations factually similar to this case. Powell v. Seaboard Air Line R. R. Co., 178 N.C. 243, 100 S.E. 424; Bennett Winston-Salem Southbound R. R. Co., 170 N.C. 389, 87 S.E. 133, L.R.A.1916D, 1074; Kirkpatrick v. Piedmont Traction Co., 170 N.C. 477, 87 S.E. 232; Brown v. Asheville Electric Light Co., 138 N.C. 533, 51 S.E. 62, 69 L.R.A. 631; Moore v. Carolina Power & Light Co., 163 N.C. 300, 79 S.E. 596; Clayton v. Liggett & Meyers Tobacco Co., supra; Pittsburgh, C. C. & St. L. Ry. Co. v. Atkinson, 51 Ind.App. 315, 97 N.E. 353, 354; Zehren v. Milwaukee Electric Railway & Light Co., 99 Wis. 83, 74 N.W. 538, 41 L.R.A. 575; Willamette Iron Works v. Oregon Railway & Navigation Co., 26 Or. 224, 37 P. 1016, 29 L.R.A. 88; Baltimore & O. R. Co. v. Kane, 124 Md. 231, 92 A. 532, L.R.A.1916C, 433; S. B. Penick & Co. v. New York Cent. R. Co., 3 Cir., 111 F.2d 1006; Cincinnati, N. O. & T. P. Ry. Co. v. City of Chattanooga, 166 Tenn. 626, 64 S.W.2d 196; Chesapeake & O. Ry. Co. v. Wadsworth Electric Mfg. Co., 234 Ky. 645, 29 S.W.2d 650; Shrader v. Cleveland, C., C. & St. L. R. Co., 242 Ill. 227, 89 N.E. 997, 26 L.R.A.,N.S., 226; Jordan v. City of Benwood, 42 W.Va. 312, 26 S.E. 266, 36 L.R.A. 519. Notes, 22 A.L.R. 171, 172; 1 Elliott Roads & Streets 4th ed., sec. 554.
The complaint charged the defendant with changing the grade of Bridges Street with resulting damage to plaintiffs. Such a change by an individual or private corporation is unlawful. An answer which denies making the change puts only that question at issue. If defendant would justify his conduct with governmental immunity he must plead the facts which would relieve him of liability. G.S. § 1-135; Cohoon v. Swain, 216 N.C. 317, 5 S.E.2d 1; Raynor v. Wilmington Seacoast R. R. Co., 129 N.C. 195, 39 S.E. 821 (eviction from train for failure to comply with rules); Burris v. Bush, 170 N.C. 394, 87 S.E. 97 (slander); Sigmon v. Shell, 165 N.C. 582, 81 S.E. 739 (false arrest); Lee v. Eure, 82 N.C. 428 (discharge in bankruptcy); Smith v. Cashie & Chowan R. & Lumber Co., 140 N.C. 375, 53 S.E. 233 (estoppel by judgment); Smith v. Newberry, 140 N.C. 385, 53 S.E. 234 (accord and satisfaction); Rountree v. Brinson, 98 N.C. 107, 3 S.E. 747 (usury); White v. Logan, 240 N.C. 791, 83 S.E.2d 892 (payment.)
It is manifest that the answer to section 7 of the complaint where the wrongful change of grade is alleged is nothing more than denial. It merely asserts that the filling was confined to the right of way and hence not unlawful. But plaintiffs were not complaining of that fill. It was the fill beyond the right of way which plaintiffs made the base for their claim for damages.
*188 Apparently defendant recognized the necessity of pleading justification for the work it did. However, it merely said it "has confined its construction efforts within its own right of way and in providing facilities for the public to cross its tracks." It may well be doubted whether this is sufficient allegation to be supported by evidence that in making the fill outside of the right of way defendant was acting not in its own behalf but only as agent of the town of Hamlet. If not sufficient, no issue was presented and certainly the amendment was immaterial.
The appeal ought not, however, to be determined by a technical question of pleading. We treat, therefore, the plea as sufficient. It is not enough, however, to plead facts constituting a defense. There must be evidence to support the plea and when the plea is a confession and avoidance or affirmative defense the burden of proof is on him who would relieve himself from liability. White v. Logan, supra; Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16; Joyce v. Sell, 233 N.C. 535, 64 S.E.2d 837; Gibson v. Central Mfrs' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320; MacClure v. Accident & Casualty Ins. Co., 229 N.C. 305, 49 S.E.2d 742; Williams v. Philadelphia Life Ins. Co., 212 N.C. 516, 193 S.E. 728; Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102; Rumbough v. Southern Improvement Co., 109 N.C. 703, 14 S.E. 314.
Treating the plea of governmental immunity as adequately made, the only remaining question is: Was there any evidence to support that plea?
The evidence without contradiction establishes these, and only these facts:
(1) Defendant for its convenience wished to relocate its wye. To do so in conformity with its wishes would necessitate a fill on its right of way.
(2) The fill would terminate at the edge of the right of way in an embankment more than three and one-half feet above the street at that point. Such an embankment would at least prevent all vehicular traffic on Bridges Street in a southwardly direction.
(3) Not wishing to violate the statutes (G.S. § 60-37(6) and 60-43) prohibiting railroads crossing public ways from interfering with the public right to use streets, the railroad planned a way for the public to mount the embankment it proposed to construct, thereby permitting the public to continue to use Bridges Street.
The proposed method called for the construction of a fill outside of the right of way. This fill materially impaired plaintiffs' access to the street (a taking of their property, Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129).
(5) The plans so prepared were submitted to the town by an official of the railroad in a letter reading: "I am enclosing herewith a blue print of our drawing No. 16084, which shows a proposed connection track to be constructed in the northeast angle of the Main track crossing at Hamlet. The construction of this connecting track will involve the crossing of Bridges Street with an additional track, also the relocation of an existing unpaved road on the Railroad's right of way. Our plans for constructing new concrete curb and guttter and paving this portion of Bridges Street in a manner satisfactory to the City of Hamlet and to relocate and surface with a mixture of sand and gravel the existing unpaved road also in a manner satisfactory to the city. Will you please let me have a permit to proceed with the construction of this connecting track across Bridges Street and the unpaved road upon the terms outlined herein * * *." The town, replying to this letter, said: "Your letter of June 7, 1955, file No. 43850 Spl., asking the Town's permission to raise the grade on the northeast side of Bridges Street where the proposed track crosses Bridges Street and that you propose to construct curb and gutter this portion of Bridges Street and that you will relocate and surface with a *189 a mixture of sand and gravel this street in a satisfactory manner to the city. This letter will grant you permission to proceed with this work as outlined above."
(6) The work was done in a careful manner and in accord with the plans submitted to the town.
(7) The work was done by the railroad or its contractor and not by the town. The work was supervised by the engineers of the railroad and not by the town.
It is patent that the change in the grade in Bridges Street was for the benefit of the railroad. Manifestly, permission was sought to avoid a complaint and action by the town to prevent defendant from proceeding with its work in Bridges Street. Defendant was not clothed with governmental immunity in the work done outside of its right of way. It follows that no error exists with respect to the exceptions discussed.
We have examined each of the other assignments but find none which is deemed prejudicial or which requires discussion.
No error.
HIGGINS, Justice (dissenting).
It is conceded the changes in elevating the defendant's tracks were made as a matter of right upon the defendant's own property. It is likewise conceded the work done in elevating Bridges Street in the Town of Hamlet was within the limits of the town's right of way for street purposes. We may assume the Town compensated the owner of the land when it acquired the easement. An easement for street purposes contemplates and includes the right to make such changes in the grade as may be necessary to accomodate public travel so long as the boundaries of the easement are not enlarged.
The Railroad Company exercised its conceded right to elevate its tracks. It became the duty of the Town and the defendant to provide a suitable crossing. The Town had the right to elevate Bridges Street for that purpose and it could exercise the right by having the work done by its own employees or by letting the work to contract, or by authorizing the Railroad Company to do it. Whether the Town paid much, or little, or nothing, to the Railroad Company to have the work done does not enlarge the liability, and certainly does not create liability when none previously existed. In the absence of allegation and proof the work of elevating the street was negligently done, there is no liability. I vote to reverse.
