Norfolk Southern R. Co. v. Stricklin

• Citation: 264 F. 546
• Decision Date: 02 March 1920
• Docket Number: 76.
• Parties: NORFOLK SOUTHERN R. CO. v. STRICKLIN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

264 F. 546

NORFOLK SOUTHERN R. CO. v. STRICKLIN et al.

No. 76.

United States District Court, E.D. North Carolina.

March 2, 1920

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

W. B Rodman, of Norfolk, Va., and Rouse & Rouse, of Kinston, N.C., for plaintiff.

George V. Cowper, of Kinston, N.C., and Manning & Kitchin, of Raleigh, N.C., for defendants.

CONNOR District Judge.

The Norfolk Southern Railroad Company is a Virginia corporation. Defendants are citizens of Kinston, Lenoir county, N.C.

The Atlantic & North Carolina Railroad Company was incorporated by an act of the General Assembly of North Carolina, ratified on the 27th day of December 1852 (Laws 1852, c. 136), with authority to lay out, construct and operate a line of railroad from Morehead City to Goldsboro, passing through the town of Kinston, N.C. The road was constructed, completed, and operated during the year 1858. By the twenty-third section of its charter the company was authorized--

'to purchase * * * and hold in fee, or for a term of years, any lands * * * or hereditaments which may be necessary for said road, or the appurtenances therefor, or for the erection of depositories, storehouses, houses for the officers, servants, or agents of the company or for workshops or foundries to be used for the said company, * * * and for no other purposes whatever.'

By the twenty-fifth section it was provided that--

'When any lands or right of way may be required by said company for the purpose of constructing its road, and for the want of agreement as to the value thereof, or from any other cause, the same cannot be purchased from the owner or owners, the same may be taken at a valuation to be made by five commissioners * * * to be appointed by any court of record having common-law jurisdiction, * * * and the lands or right of way so valued by the said commissioners shall vest in said company so long as the same shall be used for the purposes of said railroad, as soon as the valuation may be paid or * * * tendered. * * * That the right of condemnation, however granted, shall not authorize the said company to invade the dwelling house, yard or burial ground of any individual without his consent.'

By the twenty-sixth section it was provided that the right of the company to condemn lands in the manner described by the act--

'shall extend to the condemning one hundred feet on each side of the main track of the road, measuring from the center of the same * * * and the company shall also have power to condemn and appropriate lands in like manner for the constructing and building depots, warehouses, buildings for servants * * * not exceeding two acres in any one lot or station.'

By section 27 it was further enacted:

'That in the absence of any contract or contracts with said company in relation to lands through which said road or its branches may pass, signed by the owner thereof or by his agent, or any claimant or any persons in possession thereof, which may be confirmed by the owner thereof, it shall be presumed that the land upon which the said road or any of its branches may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the said company by the owners thereof and the said company shall have good right and title thereto, and shall hold and enjoy the same as long as the same shall 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 said road which may be on the said land was finished, or those claiming under him, her, or them, shall apply for an assessment of the value of said land as hereinbefore directed, within two years next after that part of the said road 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 forever be barred from recovering said lands, or having any assessment or compensation therefor.'

The Atlantic & North Carolina Railroad Company, subsequent to the date of its charter, and its organization thereunder, entered upon the lands hereinafter described, for the purpose of constructing its road pursuant to the power and authority conferred upon it by its charter, and during the year 1858 completed same and began operation thereof as a common carrier of persons and freight. Complainant alleges:

'That there was no contract or contracts with the railroad company and Walter Dunn, or any other owner or owners of any of said land lying between the southern line of Caswell street and the line of lot No. 151 and the extended line in relation to the land through which said railroad passes, owned by said Walter Dunn, or any other owner or owners, claimant or claimants, or any other person in possession thereof, limiting or in any wise modifying the width of said right of way, and under said statute, two years after the completion of said railroad through said land, it was presumed that the owner or owners thereof had granted the land upon which said railroad was constructed, together with a space of one hundred feet on each side of the center of said track to said Atlantic & North Carolina Railroad Company. * * * That more than two years have elapsed since the entry by the Atlantic & North Carolina Railroad Company upon said road, and that no application has been made for an assessment of the value of said land, or one hundred feet on each side of the said road, or if such assessment was made the value so assessed was paid. That the Atlantic & North Carolina Railroad Company is now the owner of said land subject to the rights of complainant, its lessee.'

The road was operated by the Atlantic & North Carolina Railroad Company, under and in accordance with the provisions of its charter, until September 1, 1904, when it executed a lease to 'the Howland Improvement Company' for a term of 91 years and 4 months 'of its entire railroad, with all of its franchises, privilege rights and property. ' This lease was held valid by the Supreme Court of North Carolina. Hill v. Railroad Company, 143 N.C. 539, 55 S.E. 854, 9 L.R.A. (N.S.) 606. The lease was conveyed and assigned by the lessee, November 26, 1905, to the Norfolk & Southern Railway Company. This corporation conveyed and assigned the lease, together with its other property, by way of mortgage, to the Trust Company of America, July 1, 1908.

Pursuant to the terms and provisions of the mortgage deed, a suit in equity was instituted by said trust company for the foreclosure of said mortgage in the Circuit Court of the United States, in Virginia and North Carolina, and in accordance with decrees rendered in said cause the property, including the said lease, was sold and purchased by complainant, the Norfolk Southern Railroad Company, and deed duly executed therefor, by the commissioners appointed for that purpose. All of this will fully appear by reference to the deeds, conveyances, and other records filed herein.

At the time of the construction and completion of the road, the company established and constructed a passenger and freight depot in the town of Kinston, to be used in its business and operations, and continued to use the same until April 14, 1915, when, upon application of sundry citizens of the town of Kinston, an order was passed by the North Carolina Corporation Commission, said commission being empowered by law to make said order, directing the Atlantic Coast Line Railroad and the Norfolk Southern Railroad Company, lessees of the Atlantic & North Carolina Railroad Company, to erect in the town of Kinston a union passenger station of such size and appearance and with such conveniences as would properly serve the traveling public at this point. By an order of the Corporation Commission, dated January 2, 1917, the location of said union passenger station was fixed at the Caswell street junction, in said town, and the complainant, with the Atlantic Coast Line Railroad Company, ordered to submit plans to said commission for such passenger station not later than February 1, 1917, or show cause why the penalty prescribed by the statute (section 1087, Revisal) should not be imposed. It was also ordered that the construction of said depot or passenger station should be commenced not later than March 1, 1917, and completed not later than June 1, 1917, or cause be shown why the penalty prescribed by the statute, $500 for each day failure to comply with the order continued, should not be imposed. Section 1087, Revisal. The location of the depot or station is indicated on the map filed, marked 'A.'

Pursuant to the orders of the commission, and with the concurrence of the citizens of Kinston, the two railroad companies, for the purpose of constructing the union depot or passenger station, acquired the tracts, or parcels of land, as indicated on said map, Exhibit A, and filed with said commission a plan showing the location, size, arrangements, etc. An order was later made directing changes in said plans, and further action was postponed by reason of the intervention of the war and the action of the national government regarding operation of the railroad. Copies of the several orders are in the record.

For the purpose of enabling it to comply with the orders of the commission and providing track and siding facilities rendered necessary to operate its trains and perform its duties to the public in connection with the new union or passenger depot, complainant filed this bill against defendants, in which it alleges, in addition to the facts and allegations hereinbefore recited:

'That, at the time said railroad was constructed and completed, the land lying along the line of said railroad and

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