In re Southern Ry. Co. Paving Assessment

• Decision Date: 20 March 1929
• Docket Number: 347.
• Parties: In re SOUTHERN RY. CO. PAVING ASSESSMENT.
• Court: North Carolina Supreme Court

147 S.E. 301

196 N.C. 756

In re SOUTHERN RY. CO. PAVING ASSESSMENT.

No. 347.

Supreme Court of North Carolina

March 20, 1929

Appeal from Superior Court, Forsyth County; C. C. Lyon, Emergency Judge.

Assessment proceeding by the Town of Kernersville against the Southern Railway Company. From an assessment against its property, the railroad appealed to the superior court. The judgment upheld the assessment, and the railroad appeals. Affirmed.

Acts of parties contemporaneous with city's taking property for street is evidence of regularity of condemnation thereof, and parties' interpretation of transaction will ordinarily be followed.

The judgment in the court below is as follows:

"This cause coming regularly on to be heard before me at the civil term of the Superior Court of Forsyth County beginning September 12, 1927, and it being agreed by the parties that the Court should find the facts, after hearing the evidence, the court finds as a fact:

"(1) That the parties to the action have agreed as follows: (a) That the Town of Kernersville in the year 1925, ordered certain local improvements to be made on several streets in the town, including Railroad Street, the street in controversy in this action. (b) That the said local improvements were made and assessments duly made against the Southern Railway Company as an abutting property owner on the north side of Railroad Street. (c) That Southern Railway Company duly filed an appeal to the Superior Court of Forsyth County from the assessment for pavement on said Railroad Street. (d) That that part of Railroad Street on which the improvement was made is almost wholly within the right of way of the Southern Railway Company, and within forty-five feet of the centre of road bed, and the improvement which was laid on Railroad Street, one-half of the cost of which the Town seeks to assess against Southern Railway Company, is entirely within the right of way of the Southern Railway Company.

"(2) Upon the evidence introduced the Court finds as a fact: (a) That on the -- day of --, 1868, W. P. Henley and wife, the then owner of the land on which the town of Kernersville is now located, granted to N.W. N.C. R. R. Co. an easement in a strip of land ninety feet in width, which embraces the locus in quo, for use as a right of way for the operation of a railroad, and for as long as so used; by successive conveyances said easement is now held by Southern Railway Company. (b) That on February 19, 1877, the governing authorities of the Town of Kernersville, by a resolution spread on their records, the following resolution, viz: 'Feb. 19th, 1877. It was passed by the Board that a street on each side of the Railroad bed 43 feet from centre, be established, beginning at the Danville Crossing and running to the Gates Crossing. Continuation of the Railroad Street, 54 1/2 feet. Beginning on South side of Main Street at the planking near a Chestnut Oak tree, running South side of Railroad, South 32 deg. East 422 ft. to a Cedar stake in Cedar Grove; thence South 30 deg. East curving with the Railroad to intersect with the Greensboro Street, width of Street 54 1/2 feet,' ordered the opening of two streets in the Town of Kernersville, one on the north and the other on the south side of the railroad, said street being known as Railroad Street; that the locus in quo is one of the streets opened after the adoption of said resolution by the authorities of the Town of Kernersville, and since 1877, has been maintained as a public street of the town, and has been worked by the city forces and used by the citizens of the town continuously. (c) That the town of Kernersville ordered the making of local improvements, including the local improvement of Railroad Street, pursuant to petition duly filed by property owners, and that all action taken in connection with the making of said local improvement was regular and in accordance with law. (d) That in apt time Southern Railway Company filed its notice of appeal from the confirmation of the assessment, and filed the statement of facts upon which it based its appeal, alleging in said statement that Railroad Street is not a public street, and that no compensation had been paid Southern Railway Company by the town of Kernersville for the land covered by the street and on which the pavement was laid. (e) That Southern Railway Company had due notice of the intention of the authorities to improve said Railroad Street by making local improvements thereon, prior to the commencement of said work, and also had due notice that the authorities of the town considered said street a public street, the Southern Railway Company made no protest and filed no objection to the making of the improvement only until after the work was done and the assessment roll prepared.

"Wherefore, the court is of the opinion: (a) That Railroad Street is a public street of the town of Kernersville. (b) That Southern Railway Company, knowing that the town was making costly improvements on said Railroad Street, in the belief that said street was a public street, and would levy assessments against the Southern Railway Company for the cost of said work, offered no objection thereto until after the completion of the work, and is therefore estopped to deny that said street is a public street. (c) That all things had and done by the governing authorities of the town in connection with the ordering and making of the local improvement was done in accordance with the statutes governing the making of local improvements. (d) That Southern Railway Company is liable for the assessments levied by the town of Kernersville.

"Therefore, it is now ordered, adjudged and decreed: That the town of Kernersville have and recover of the Southern Railway Company in the sum of $1,512.78, with interest on said sum from the 10th day of March, 1926, until paid. Southern Railway Company will pay the cost of this action."

Manly, Hendren & Womble, of Winston-Salem, for appellant.

J. L. Morehead and W. H. Murdock, both of Durham, for appellee.

CLARKSON J.

It will be noted that the parties to this controversy agreed that the court below find the facts. Certain facts were agreed to, and the court heard the evidence and found the facts. The finding of facts by the court are as binding on the litigants as the findings by a jury. 38 Cyc. p. 1933 et seq.

The court below found the following facts: "That the locus in quo is one of the streets opened after the adoption of said resolution by the authorities of the Town of Kernersville, and since 1877, has been maintained as a public street of the town, and has been worked by the city forces and used by the citizens of the town continuously."

It is well settled that a municipal corporation cannot exercise the power of eminent domain and acquire land for street purposes unless authorized by its charter or under a provision in the general law. Provision made for condemnation must be bottomed on just compensation. Lloyd v. Venable, 168 N.C. page 531, 84 S.E. 855.

It is said in Raleigh v. Durfey, 163 N.C. at page 160, 79 S.E. 436, Ann. Cas. 1915C, 769: "It is admitted that the plaintiff has been in undisputed actual adverse possession under known and visible lines and boundaries of the entire land and property for sixty years, occupying the same and collecting the rents. Upon these facts it would seem to be plain that plaintiff has acquired an absolute title to the property. One of the methods of acquiring title to land is by adverse possession. Mobley v. Griffin, 104 N.C. 115 . We know of no reason or authority by which a municipality is excluded from that rule and rendered incompetent to acquire title by that method."

The town of Kernersville has been in the undisputed actual adverse possession and use of the street under known and visible lines and boundaries for nearly half a century. Ordinarily continuous adverse use for over twenty years is sufficient to give title. As against an individual, there would be no question as to the rights of the town of Kernersville. State v. Fisher, 117 N.C. 733, 23 S.E. 158; Durham v. Wright, 190 N.C. 568, 130 S.E. 161; Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2; Grant v. Power Co., 196 N.C. 617, 146 S.E. 531.

But C. S. § 434, is as follows: "No railroad, plank road, turnpike or canal company may be barred of, or presumed to have conveyed any real estate, right of way, easement, leasehold, or other interest in the soil which has been condemned, or otherwise obtained for its use, as a right of way, depot, stationhouse or place of landing, by any statute of limitation or by occupation of the same by any person whatever." See Carolina Cent. Railroad Co. v. McCaskill, 94 N.C. 746; Purifoy v. Railroad, 108 N.C. 100, 105, 12 S.E. 741; Bass v. Navigation Co., 111 N.C. 439, 16 S.E. 402, 19 L. R. A. 247; Railroad v. Olive, 142 N.C. 257, 55 S.E. 263; Griffith v. R. Co., 191 N.C. 84, 131 S.E. 413; Wearn v. R. Co., 191 N.C. 575, 132 S.E. 576; Dowling v. R. Co., 194 N.C. 488, 140 S.E. 213; Heaton v. Kilpatrick, 195 N.C. 708, 143 S.E. 644.

The railroad contends that, under the above statute and the decisions of this court, in no legal way did the ...