City of Durham v. Southern Ry. Co.

• Decision Date: 16 February 1903
• Citation: 121 F. 894
• Parties: CITY OF DURHAM v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

121 F. 894

CITY OF DURHAM v. SOUTHERN RY. CO.

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

February 16, 1903

J. S Manning, R. W. Winston, J. Crawford Biggs, and W. H. Day, for complainant.

Fab. H Busbee, Charles A. Price, and W. A. Henderson, for defendant.

PURNELL District Judge.

Complainant commenced its action in the superior court of Durham county on July 11, 1899, and filed a complaint, which, after formal allegations of corporate existence, etc., alleges that it the city of Durham, is the owner and entitled to the possession of a certain strip of land on the north side of the North Carolina Railroad, a part of what is designated and known as 'Peabody Street' in the city of Durham, N.C. The form of the pleading is similar to an action of ejectment, but there is no objection to the form of the pleadings, nor was there any serious discussion in the argument as to such form, whether it is an action in ejectment, or plaintiff claiming possession in an action to remove cloud upon title or restrain a threatened trespass etc., but all were incidentally discussed; technical objections being waived, and a disposition by all to present the real question at issue. Plaintiff claims to be rightfully in possession of the locus in quo, a strip of land on the north side of the right of way of the North Carolina Railroad Company, about 32 feet wide, and extending from Roxboro street to Cigarette street, now used by another railroad company as a right of way. This will be better understood from the plat hereto attached and exhibited.

(Image Omitted) The Southern Railway Company answered, and sets up several defenses. By stipulation of counsel records were admitted and used as evidence in lieu of depositions taken in the usual form, which cause, being set down for hearing, was argued. From the pleadings and records used, eliminating what is not regarded as essential, the following chronological statement of facts only is necessary to understand the contentions, though many others were referred to in the argument:

(1) In 1852 the North Carolina Railroad was chartered by act of the Legislature, and soon thereafter built. Exactly when the track on the land now Peabody street, in the city of Durham, was laid, or the right of way thereon acquired, does not appear, but probably about 1854. There was no city or town of Durham at that time, and the land now the right of way was woods, old field, or a road. There were no conveyances, condemnation proceedings, or other evidence of how this right of way was acquired, but it is stated to have been under section 29 of the charter (Act 1852), which reads as follows:

'That in the absence of any contract or contracts with said company, in relation to lands through which the said road or its branches may pass, signed by the owner thereof or by his agent, or any claimant or person 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 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 may 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 or them, shall apply for an assessment of the value of said lands, as hereinbefore directed, within two years next after that part of the said road, which may be on 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 thereof: provided, nothing herein contained shall affect the rights of femes covert or infants until two years after the removal of their respective disabilities.'

(2) In 1871, the North Carolina Railroad Company leased for a term of 30 years all its property, franchises, etc., to the Richmond & Danville Railroad Company, which lease was adjudged by the Supreme Court of the state to be valid.

(3) In 1889 complainant herein commenced an action in the superior court ('Chatham County Case') against the North Carolina Railroad Company and the Richmond & Danville Railroad Company for a purpose similar to the one at bar, in which suit a judgment was rendered in favor of the North Carolina Railroad Company against the city (the town of) Durham, and in favor of the city of Durham against the Richmond & Danville Railroad Company. The gist of this judgment was that the Richmond & Danville Railroad Company had dedicated the strip of land to the city of Durham and the public as a street, and an injunction was entered restraining the Richmond & Danville Railroad Company from trespassing thereon with its tracks or otherwise. The jury having found the issues submitted in favor of the North Carolina Railroad Company, judgment was entered in its favor 'that it go without day, and recover its costs,' etc. This judgment was at fall term of Durham superior court, 1891, after the cause had by appeal been to the state Supreme Court. These judgments were based upon findings of fact by the jury upon issues submitted to them that the town (now the city) of Durham did not, in pursuance of the provisions of its charter, condemn for use as a street the strip of land known as 'Peabody Street;' that the town (now city) of Durham and the public had not for 20 years prior to the beginning of the action (June 17, 1889) had the exclusive use and occupancy of said street with the knowledge and acquiescence of defendants (the North Carolina and Richmond & Danville Railroad Companies); that the Richmond & Danville Railroad Company had, but the North Carolina Railroad Company had not, dedicated to the plaintiff, the town (now the city) of Durham, and the public the land described in the complaint for the purposes of a street; that the Richmond & Danville Railroad Company was, after the commencement of the action, unlawfully invading the possession of the plaintiff, 'the town (now city) of Durham.'

(4) Pending this suit the Oxford & Clarksville Railroad Company commenced proceedings of condemnation under the provisions of the Code against the Richmond & Danville and North Carolina Railroad Companies; and while the injunction of the state court was in force restraining the Richmond & Danville Railroad Company from trespassing, etc. (pending these proceedings), others of like import were commenced by another railroad (the Durham & Northern), and by action of the municipal officers of the city of Durham permission was granted for it, the Durham & Northern...