Horner v. Southern Ry. Co.

• Decision Date: 01 November 1922
• Docket Number: 330.
• Parties: HORNER ET AL. v. SOUTHERN RY. CO. ET AL.
• Court: North Carolina Supreme Court

114 S.E. 296

184 N.C. 270

HORNER ET AL. v. SOUTHERN RY. CO. ET AL.

No. 330.

Supreme Court of North Carolina

November 1, 1922

Appeal from Superior Court, Granville County; Kerr, Judge.

Action by Mary E. Horner and others, heirs at law of Sophronia Moore Horner, against the Southern Railway Company and another. Judgment for defendants, and plaintiffs appeal. Error.

A judgment by consent entered in an action to compel a railway to exercise its franchise or forfeit its right of way held to confer on former owner the title to the right of way including the depot site, whenever the railway abandoned the same.

The action is principally to determine the ownership of two acres of land formerly used by defendant roads for its terminal station, in the town of Oxford, N. C., and on the hearing it was properly made to appear that on September 13, 1879, James H. Horner, now deceased, conveyed to the Oxford & Henderson Railroad a right of way 80 feet in width through all the lands of said grantor situate in Granville county, and extending from one-half mile beyond present junction to the point on the map now known and designated as Williamston street; that later, on October 31 1879, said James H. Horner conveyed to W. F. Beasley 10 acres of his land in said county abutting on Williamston street and said Beasley, acting in promotion of the railroad enterprise, conveyed 2 acres of said 10 acres to the Oxford & Henderson Railroad for a terminal station, which said 2 acres included part of the 80 feet right of way extending from the Tanyard branch to Williamston street; that subsequently the property rights and franchises of the Oxford & Henderson Railroad were acquired and used by the Southern Railway, and after using said right of way for some time, the Southern Railway evinced a purpose to abandon the said Terminal Station and right of way acquired from James H. Horner and W. F. Beasley, from Williamston street through the lands of said Horner to the present junction point, now used for terminal station, in said town. Thereupon Mrs. Sophronia Horner, sole devisee of James H. Horner, and ancestor in title of present plaintiffs, in 1896 instituted a civil action in the superior court of Granville county against the Southern Railway and the Oxford & Henderson Railroad to compel the exercise of its railroad franchise along and upon the right of way and station obtained through deeds of J. H. Horner, or forfeit all right and title thereto to the plaintiff, Sophronia Horner. This cause was settled by a consent judgment in terms as follows:

"This cause coming on upon complaint and answer, and the matters in controversy having been adjusted between the parties by consent of all the parties hereto, it is ordered and decreed that the defendant, the Southern Railway Company, pay to the plaintiff herein the sum of $150 in full satisfaction of all the claims set up in the complaint and of all other arising out of the occupation of any part of the land of the plaintiff as right of way and of any and all change of route by defendant of any railroad operated by it in or near Oxford, N.C. It is further ordered that, upon the removal by the defendants or either of them of the railroad track from any part of the...