City Of Hickory v. Southern Ry. Co

• Decision Date: 29 May 1906
• Citation: 53 S.E. 955,141 n. c. 716
• Parties: CITY OF HICKORY. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

53 S.E. 955

141 n. c. 716

CITY OF HICKORY.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

May 29, 1906.

1. Nuisance—Public Nuisance—Encroachment on Public Rights.

A railroad freight depot in the center of a town, causing the obstruction of streets by cars and rendering the streets dangerous, is a public nuisance.

2. Same—Injunction—Suit by Town.

Where a freight depot in a town constituted a public nuisance, the town, acting through its official board, was a proper party to sue for an injunction.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Nuisance, § 195.]

3. Same—Remedies op Private Persons-Damages.

Though a freight depot in a town amounted to a public nuisance, any citizen might recover damages by showing that it was a nuisance to him.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Nuisance, §§ 164-169.]

Appeal from Superior Court, Catawba County; Cooke, Judge.

Suit by the city of Hickory against the Southern Railway Company. From the judgment, both parties appeal. Affirmed.

See 50 S. E. 683.

E. B. Cline, T. M. Hufham, and Self & Whitener, for appellant.

Witherspoon & Witherspoon and S. J. Ervin, for appellee.

CLARK, C. J. This is an action to restrain the defendant from enlarging its freight station in the town of Hickory; the plaintiff alleging that the increase in traffic and shifting of more trains would make it a nuisance and dangerous, and averring that the defendant can and should locate a building to accommodate its increased traffic at some point further off and not enlarge its present building in the center of the growing and populous town. Both parties appeal, but the whole matter can be treated in one opinion. Three main questions are presented: (1) The title to the lot in controversy; (2) whether the proposed addition of 70 feet at the end of defendant's depot will be a nuisance which the courts can and should enjoin; and (3) whether the plaintiff can maintain this action.

The defendant claimed title as follows: (1) A deed by H. W. Robinson and several others, November 9, 1855, granting to the Western North Carolina Railroad a right of way over their respective lands wherever situated, the same to be "so much and no more of said lands" than said company "would have the right to condemn for its use" under the provisions of its charter. It is admitted that H. W. Robinson was the owner of the lot in question, that the defendant by purchase had succeeded to all the rights and property of said Western North Carolina Railroad Company, and that the right of con demnation extended to 100 feet on each side of the track. (2) A deed from H. W. Robinson to the Western North Carolina Railroad Company, May 26, 1859, and recorded in November, 1905. (3) The defendant further relies upon section 29, c. 228, p. 264, Acts 1854-55 (the charter of the Western North Carolina Railroad Company), which is a provision that, "in the absence of any contract" for the right of way, the construction and operation of the road for two years, without claim, shall bar any action for any land covered by the right of way. The railroad was constructed at this point in the fall of 1859, and lias been in operation ever since. (4) A deed from H. W. Robinson March 10, 1880, to the Western North Carolina Railroad Company for a lot 400 feet by 500 feet, giving specific boundaries and embracing the station as its central point, conveying said property "for the purpose of a public square around the depot for the free and common use of both railroad and the town of Hickory, not to be built up or exclusively occupied by any one, to the exclusion of the public as a free common." This deed was drawn by the president of the Western North Carolina Railroad Company, who indorsed thereon: "The orig-inal deed having been destroyed without record, this deed is accepted in lieu thereof." This deed was proved and recorded in April, 1880. The deed of 1855 was not presented in evidence when this case was before us (137 N. C. 189, 49 S. E. 202), and this point was not passed upon.

We think, therefore, the court did not err in instructing the jury, as a matter of law, upon all the evidence, to find that the defendant owned the 100 feet on each side of the railroad by virtue of the deed of 1855, and that it did not hold that part of the lot in trust for the town, and the jury found, under proper instructions, that the defendant held the balance of the lot under the trust set out in the deed of 1880 (No. 4 above).

In the defendant's appeal there is no exception to these findings, except the last, and that exception is without merit, since it was adjudicated in the former appeal. 137 N. C-189, 49 S. E. 202. Indeed, it is stated in this case (137 N. C, at page 203, 49 S. E., at page 205) that the record shows "the defendant in open court agreed that it did not...