Keziah v. Seaboard Air Line R. Co., 549

Decision Date12 January 1968
Docket NumberNo. 549,549
Citation272 N.C. 299,158 S.E.2d 539
PartiesAlbert L. KEZIAH and wife, Norma P. Keziah, and Clegg A. Keziah and wife, Helen O. Keziah, Plaintiffs, v. SEABOARD AIR LINE RAILROAD COMPANY, Defendant.
CourtNorth Carolina Supreme Court

Clark & Huffman, Monroe, for plaintiff appellants.

Cansler & Lockhart, Charlotte, for defendant appellee.

BRANCH, Justice.

The first and principal question for decision is whether the charter granted to Wilmington and Charlotte Railroad Company by the 1854--1855 Session of the General Assembly by Chapter 225 granted a right of way 100 feet wide on each side of defendant's main track, measuring from the center of same.

It is of interest to note that in the case of Carolina Cent. R. R. v. McCaskill, 94 N.C. 746, one of defendant's corporate predecessors was plaintiff and the act before us in the instant case was therein construed. In that case the railroad brought an action in ejectment to recover possession of property located within 100 feet of the center line of the railroad company's track. Defendant claimed the property it occupied by virtue of deeds of conveyance. Affirming the judgment of the lower court for the plaintiff this Court stated:

'It is not material to inquire into the source from which the defendant derives his title, beyond his mere occupancy, since the plaintiff must establish its right to the possession of the premises, in order to a judgment of ejection. In whomsoever the estate was vested, there being no suggestion that they were under disabilities, it was, under the statute, as soon as the road was constructed and Toties quoties as it progressed towards conclusion, transferred to the corporation, of the required width of 100 feet on either side, to be paid for as directed, when no written contract has been entered into for the purchase. In such case, the inaction of the owner in enforcing his demand for compensation for land taken and appropriated after the finishing of the construction of the road thereon, for the space of two years thereafter, raises, under the statute, a presumption of a conveyance and of satisfaction, and hence becomes a bar to an assertion by legal process, of such claim.

'These conditions unite in this case, and not only does the title vest in the corporation, but the remedy given the owner, under no disability, has been lost by lapse of time.

'The presumption of the conveyance arises from the company's act in taking possession and building the railway, when in the absence of a contract, the owner fails to take steps, for two years after it has been completed, for recovering compensation. It springs out of these concurring facts, and is independent of inferences which a jury may draw from them. If the grant issued, it would not be more effective in passing the owner's title and estate. Thus vesting, it remains in the company as long as the road is operated, of the specified breadth, unaffected by the ordinary rules in reference to repelling presumptions, * * *.

'* * * the statute does not require the occupation and direct use of every foot of the condemned area, for building embankments and the like, but preserves the property in the company, so long as the road runs over the land and is operated by the company. A permissive use of part of it by another, when no present inconvenience results to the company, is not a surrender of rights of property, and, indeed, to expel and occupant under such circumstances, would be a needless and uncalled for injury. This may suspend, but does not abridge the right of the company to demand restoration, when the interests of the road may require its use.'

The McCaskill case was modified in the case of Railroad Co. v. Sturgeon, 120 N.C. 225, 26 S.E. 779, where the Court considered similar conditions and the same statutory language as in McCaskill, and held that the railroad did not acquire a title to the land, but acquired an easement which entitled it to pssession of the whole right of way only when it should appear that it was necessary for the conduct of its business.

In the case of Southern R. R. v. Lissenbee, 219 N.C. 318, 13 S.E.2d 561, the railroad brought action to require defendant to remove obstructions around its signal and switching system, and to restrain defendant from interfering with its equipment. Defendant contended the right of way of plaintiff was limited and it had no rights on places where the electric signal was situated. Plaintiff contended that its charter granted by statutory presumption a right of way 100 feet on each side of the center line of its track and over the property of the defendant. Plaintiff's charter contained a section substantially the same as section 28 of Chapter 225, Session 1854--1855, hereinbefore set out. The Court, affirming judgment in favor of plaintiff, stated:

'Provisions of similar character and like effect, to this quoted portion of Section 29, appearing in the charters granted by the General Assembly to other railroad companies in the early era of railroad building in North Carolina have been considered in numerous decisions of this Court, among which are these: Vinson v. North Carolina R.R., 74 N.C. 510; Carolina Cent. R.R. v. McCaskill, 94 N.C. 746; Raleigh & A. Air Line Co. Railroad Co. v. Sturgeon, 120 N.C. 225, 26 S.E. 779; Dargan v. Carolina Cent. r.R., 131 N.C. 623, 42 S.E. 979; Barker v. Southern R.R., 137 N.C. 214, 49 S.E. 115; Seaboard Air Line R.R. v. Olive, 142 N.C. 257, 55 S.E. 263; Earnhardt v. Southern R.R., 157 N.C. 358, 72 S.E. 1062.

'The tenor of these decisions is expressed in Barker v. Southern R.R., supra, in this manner: 'This mode of acquisition is not an exercise of the right of eminent domain. It is based upon a purely statutory presumption. The concurring conditions are (1) entry and construction of the road; and (2) the failure of the owner to prosecute an action for two years. These concurring conditions existing, the statute fixes the term of two years within which the owner may prosecute his action, and in default of which the road acquires the easement described, to wit, 'one hundred feet on each side of the center of the road,' with the limitation fixed as to time and use'.

'Again, in Earnhardt v. Southern R.R., supra, it is said: 'The effect of inaction on the part of the owner for a period of two years after the completion of the road has been considered in several cases in this court under charters similar to the one before us, and, without difference of opinion, it has been held that under such circumstances, a presumption of a grant from the owner arises for the land on which the road is located, and for the right of way provided for in the charter'.

'This presumption, however, only arises in the absence of contract in relation to the lands through which the railroad may pass. Hence, the burden is upon the party claiming the benefit of such presumption to show every fact out of which it arises. Barker v. Southern R.R., supra.'

Again, in the case of Carolina & N.W.R.R. v. Piedmont Wagon & Manufacturing Co., 229 N.C. 695, 51 S.E.2d 301, the Court considered provisions in a charter similar to those pertinent to the instant case, and held:

'It is generally held that where a common carrier by railroad, under provision of its charter, enters upon land and builds a railroad, without grant or condemnation of the right of way, and no action or proceeding is commenced by the land-owner within the statutory period for recovering compensation, a presumption of a grant or conveyance arises from the concurrence of these circumstances, and this presumption extends to the limits which the railroad company might have taken by condemnation and for which the landowner could have recovered compensation had he brought his action within the prescribed period of time. Earnhardt v. Southern R.R., 157 N.C. 358, 72 S.E. 1062. In such circumstances the railroad is said to acquire its right of way by implied grant or by operation of law. Carolina Cent. R.R. v. McCaskill, 94 N.C. 746; Raleigh & A. Air-Line R.R. v. Sturgeon, 120 N.C. 225, 26 S.E. 779; Seaboard Air Line R.R. v. Olive, 142 N.C. 257, 55 S.E. 263, and cases there analyzed and reviewed.'

Appellants correctly contend that when defendant relies on a statutory presumption to establish it right of way, the burden is upon defendant to show by a preponderance of the evidence every fact out of which the presumption arises, i.e., that defendant entered upon the land and constructed its tracks in the absence of any contract with the owner and that the persons owning the land when the road was finished did not apply for compensation within two years, as provided by statute. Barker v. Southern R.R. supra; Earnhardt v. Southern R.R., supra.

Here, defendant railroad company offered uncontradicted evidence of entry and construction of the railroad over ninety years ago, without any contract with the owner or owners. Plaintiffs neither by allegation nor proof controverted this evidence. Manifestly, sufficient time has long since elapsed for acquiring the right of way by statutory presumption.

Other than evidence of the alleged trespass, the essence of appellants' evidence was that there were Western Union poles on the property in controversy and that there was a fence within 80 feet of defendant railroad company's main track; that certain conveyances tend to show that the southern boundary of plaintiffs' line is 35 to 50 feet from the center line of the track, and that other adjoining land appears about 50 feet from the center of the track.

It is well settled by statute and precedent in this jurisdiction that when a railroad has acquired and entered upon the enjoyment of its easement, the...

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