Goodman v. Heilig

• Decision Date: 15 November 1911
• Citation: 72 S.E. 866,157 N.C. 6
• Parties: GOODMAN et al. v. HEILIG et al.
• Court: North Carolina Supreme Court

72 S.E. 866

157 N.C. 6

GOODMAN et al.

v.HEILIG et al.

Supreme Court of North Carolina.

Nov. 15, 1911.

1. Evidence (§ 22^*) — Judicial Notice—Existence of Railroads.

The Supreme Court takes judicial notice of the existence of a railroad belonging to a quasi public corporation, chartered by the General Assembly.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 26-28; Dec. Dig. § 22.*]

2. Covenants (§ 100*) — Notice — Existence of Easements.

A purchaser of land has constructive notice of the existence of an easement in favor of a railroad company, maintaining a railroad thereon; and hence existence of such easement is no breach of the vendor's covenant of warranty.

[Ed. Note.—For other cases, see Covenants, Cent. Dig. §§ 139-155; Dec. Dig. § 100.*]

Appeal from Superior Court, Rowan County; Lyon, Judge.

Action by E. A. Goodman and another against John D. Heilig, administrator, and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Civil action to recover damages for breach of covenant against incumbrances contained in a deed from A. S. Heilig to W. J. and Julia Crowell, and a deed from B. H. Hamilton, grantee of Crowell, to plaintiffs. The covenants are practically the same in both deeds. The incumbrance is charged in these words: "But such portion of said land was, at the time of the execution of said deeds, and has been ever since, owned by the North Carolina Railroad Company as a right of way." The defendants' demurrer sets out six grounds. It is necessary to consider only one, viz.: "That plaintiff's complaint does not state facts sufficient to constitute a cause of action, in that, as a question of law, the use and occupation of a portion of the lands described in the complaint, as a right of way, by the North Carolina Railroad Company under its charter, pursuant to the acts of the Legislature of 1849 (Pub. Laws 1848-49, c. 82), was constructive notice of said company's right of way, and does not constitute a breach of warranty or covenant on the part of defendants. That, as a matter of law, the right of way alleged to be claimed by the North Carolina Railroad Company does not constitute any valid incumbrance upon the title of plaintiffs, nor any breach of the covenants of warranty and seisin, as alleged by the plaintiffs." The demurrer was sustained by his honor, Judge Lyon, at May term, 1911, superior court of Rowan county, and plaintiffs appealed.

J. L. Rendleman and Jerome & Price, for appellants.

John S. Henderson, R. Lee Wright, and P. S. Carlton, for appellees.

BROWN, J. [1] We take judicial notice of the fact that the North Carolina Railroad is a great public highway, running from Goldsboro to Charlotte, through Rowan county. It belongs to a quasi public corporation, chartered in 1849 by an act of the General Assembly that gives the corporation full power of eminent domain, and provides that where land is not condemned for a right of way within a certain time the corporation acquires 100 feet on each side of the center of the track. The road has been in actual operation since 1853. It was admitted upon the argument that the road is now being double-tracked, and the injury set up in the complaint is the construction of a "fill" upon a small part of the right of way upon which the additional track is laid. Plaintiffs claim that the boundaries of the deed take in some part of the right of way.

We are of opinion with his honor that the demurrer should be sustained. The railroad corporation has not acquired the fee simple to the land covered by its right of way, but only an easement in it. If the railroad should be discontinued, the land would revert to the owner of the fee, relieved of the burden of the easement, and the owner would then have an absolute title without incumbrance. While this easement may be in one sense an incumbrance or burden upon the fee, it is in this particular case such an incumbrance as a purchaser has knowledge of, and is bound to take into consideration before purchasing. The railroad right of way is a great public highway, of which all persons must take notice, and, as said by Kennedy, J., in Patterson v. Arthurs, 9 Watts (Pa.) 152: "It is fair to presume that every purchaser, before he closes his contract for his purchase of land, has seen it and made himself acquainted with its locality and the state and condition of it, and consequently, if there be a public road or highway open or in use upon it, he must be taken to have seen it, and to have fixed in his own mind the price he was...