Narron v. Wilmington & W.R. Co.
| Decision Date | 15 March 1898 |
| Citation | 29 S.E. 356,122 N.C. 856 |
| Parties | NARRON et al. v. WILMINGTON & W. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Johnston county; Robinson, Judge.
Action by John A. Narron and others against the Wilmington & Weldon Railroad Company. From a judgment for defendant, plaintiffs appeal. Reversed.
Where land is deeded to a trustee for the separate use of a married woman, the latter cannot create in a railroad company title to a right of way thereover by a deed in which her husband joins.
Simmons Pou & Ward, for appellants.
Robt. O. Burton, for appellee.
On the 20th of March, 1871, a part of the land upon which the defendant's roadbed is located was conveyed to Wiley Simms, and on the 6th day of July, 1872, the residue was conveyed to him. These lands were conveyed to Simms, as trustee, for the sole and separate use and benefit of Maria Heath for life, to be held free from all debt, charges, and incumbrances of her husband, A. J. Heath, and at her death for Ora M. Heath, Preston S. Heath, and Ava E. Heath children of the said Maria Heath. On the 28th day of August 1885, A. J. Heath and wife, Maria, J. W. Wellons, and Ora one of the cestuis que trustent, and who had intermarried with J. W. Wellons, made and executed a deed to the defendant corporation granting it the right of way over said lands. Thereafter, and in the fall of 1885, the defendant entered upon the lands, located its roadbed, and has continuously held and occupied the same from that time until the commencement of this proceeding for damages. The trustee Simms, was not a party to the deed to the defendant, nor did he assent to the appropriation and occupancy by defendant of said land. The said Simms is dead, and the plaintiff Narron has been duly appointed trustee in his stead. Upon these facts, which were agreed to by the parties, the court held that the defendant was the owner of the 130 feet of land, running across said lands for a mile, upon which its roadbed was located; that "it had been possessed of said right of way under known and visible lines and boundaries, and under color of title, for seven years next before the bringing of the action, and that the plaintiffs' claim is also barred by the five-years statute of limitations." These facts and this ruling of the court present the only question necessary for our consideration in determining the rights of the parties. It is not contended that the defendant is the owner of the land upon which its roadbed is located, but that by the deed of Heath and wife the defendant is the owner of an easement upon the land covered by its roadbed; that this deed is color of title, at least; and that the defendant has occupied this land under said deed for more than seven years, which has perfected its title, if it was at first defective. The defendant further contends that this proceeding was not commenced within five years from the time the defendant entered upon and took possession of its roadbed, and that the plaintiffs' right to recover, if they had any, is barred by the lapse of time, under chapter 152, Acts 1893. An easement must be an interest in or over the soil. It cannot be made by livery,--by deed,--but lies only in grant. Washb. Easem. 27. It may also be acquired by prescription, or, more properly speaking, under the modern doctrine, by presumption. This presumption of a grant may arise by the continuous occupation for 20 years. Whether this presumption arises from the occupation of a railroad, it may not be necessary for us to decide in this case. But it would seem that the reason for presuming a grant by the continued occupation of the land for 20 years is wanting. This rule is founded upon the idea that, if there had not been a grant, the owner would have put an end to the wrongful occupation before the expiration of 20 years. In this case and that of other railroads it is not necessary that they should have a grant to authorize their entry and occupation. This is authorized by the charter under the state's right of eminent domain; and the owner of the soil has no right to prevent the entry and continuous occupation of the defendant road. This being so, the reason for the rule creating the presumption fails, and it would seem that the defendant would acquire no title by occupation and the lapse of time; and this opinion seems to be sustained by the decisions of the court in Land v. Railroad, 107 N.C. 72, 12 S.E. 125, and Utley v. Railroad Co., 119 N.C. 720, 25 S.E. 1021. This being so, the defendant must rely upon the deed from Heath and wife and the plea of the statute of limitations. No one but the owner of the soil can grant an easement,--no one who could not convey the fee-simple estate. Washb. Easem. 40. Heath and wife could not have done this. Kirby v. Boyette, 116 N.C. 165, 21 S.E. 697; Id., 118 N.C. 244, 24 S.E. 18. And, as they could not have conveyed the land, they could not create the easement by grant. This leaves the statute of limitations to be considered. At common law there was no limitation to the right of action. This defense is entirely...
To continue reading
Request your trial