Mallett v. Simpson

• Decision Date: 28 February 1886
• Citation: 55 Am.Rep. 595,94 N.C. 37
• Court: North Carolina Supreme Court
• Parties: CHARLES E. MALLETT v. CLIFFORD SIMPSON.

94 N.C. 37

55 Am.Rep. 595

CHARLES E. MALLETT

v.CLIFFORD SIMPSON.

Supreme Court of North Carolina.

February Term, 1886.

CIVIL ACTION to recover the possession of land, tried before Shipp, Judge, and a jury, at February Special Term, 1885, of CRAVEN Superior Court.

The plaintiff introduced the following deeds in support of his title:

(1). A deed from Owen Chestnut to Elijah Hardison, executed in 1842.

(2). A deed from Elijah Hardison to the Atlantic and North Carolina Railroad Company, executed in 1856.

(3). A deed from said company to George A. Davey, executed in 1881.

(4). A deed from said Davey to plaintiff, executed in 1881.

It was in evidence that the defendant took possession of the land in controversy some three or four months before the action was begun, and has continued to hold possession ever since, and that the plaintiff's deeds covered the same.

It was also in evidence that Owen Chestnut was in possession of the land in 1833, and continued to live on it until he sold to Elijah Hardison in 1842; that said Hardison was in possession of the land from 1842 to 1856; that he had a hog-pen on the land, situated on the line of his land, that ran through the field of the defendant, which was alleged to be on the land of the plaintiff, and is the subject of this action. It was also in evidence that the railroad company was in possession of the premises, and from 1856 to the time when the plaintiff went into possession in 1881, frequently cut wood and cross-ties on parts of it, and that the plaintiff was in possession of the land from the time of his purchase until the defendant took possession.

The defendant introduced no evidence, except the charter of the Atlantic and North Carolina Railroad Company, with specific reference to §23, and it was admitted by the plaintiff that the land in controversy was a part of an ordinary plantation, and the evidence was, that the railroad ran through it, but not over the locus in quo, and that it was used for no other purpose by the company, than for the purpose of wood for fuel and cross-ties.

Defendant's counsel contended that the railroad company was incapable of taking or making title to the land, and that the title was in the heirs of Elijah Hardison, he being dead. His Honor ruled against the defendant and he excepted.

His Honor instructed the jury, that as it was in evidence “that Chestnut was in possession of the land in 1836, and afterwards until the sale to Hardison, and by reason of other testimony that possession in favor of plaintiff and those under whom he claimed, would begin to run from 1833, without color, in making out his title by thirty years possession; and a break of two or three years in the chain of continuous possession for thirty years would make no difference.

The jury returned a verdict in favor of the plaintiff and there was judgment accordingly, from which the defendant appealed.

Mr. C. M. Busbee, for the plaintiff .

Mr. Jno. Devereux, Jr., for the defendant .

ASHE, J., (after stating the facts).

The only exception taken by the defendant on the trial, was to his Honor's ruling adversely to his contention, that under the 23d section of the Act of Incorporation (Laws of 1852, ch. 136), the railroad company was incapable of taking or making title to the land, and that the estate was in the heirs of Elijah Hardison, who was dead.

The section of the act relied upon by the defendant as the ground of his exception, is as follows: “That the said company may purchase, have, and hold in fee for a term of years, any lands, tenements or hereditaments which may be necessary for said road or the appurtenances therefor, or for the erection of depositories, store-houses, houses for the officers, servants or agents for the company, or for workshops or foundries to be used for said company, or for procuring stone or other materials necessary to the construction of the road, or for effecting transportation thereon, and for no other purpose whatever.” But, in connection with this section, in ascertaining the powers conferred by the charter of the company, the fifth section of the act should be considered, in which it is declared that the company “shall be capable, in law and equity, of purchasing, holding, selling, leasing and conveying estates, real, personal and mixed, acquiring the same, by gift or devise, so far as shall be necessary for the purpose embraced within the scope, object and intent of this charter, and no further.” By the charter, the corporation is empowered to purchase, hold and sell real property, for the purpose of “ procuring stone or other material necessary to the construction of the road, or for effecting transportation thereon.” In the absence of any evidence with respect to the use made of the land after its purchase by the company, it is to be presumed that the land purchased was acquired for the purpose authorized by the charter. The deed to the company covered the fee, and the company had the right to sell and convey the same. This principle is announced in the case of Yates v. Van De Bogert, 56 N. Y., 526, in which it is held, that “where a railroad company is authorized by its charter to acquire by purchase such real estate as may be necessary for the construction of its road, it will be presumed that lands deeded to it, are acquired for that purpose. By a deed purporting to convey a...