Norfolk Southern Ry. Co. v. Smitherman

• Decision Date: 03 December 1919
• Docket Number: 481.
• Citation: Norfolk Southern Ry. Co. v. Smitherman, 178 N.C. 595, 101 S.E. 208 (N.C. 1919)
• Parties: NORFOLK SOUTHERN RY. CO. ET AL. v. SMITHERMAN ET AL.
• Court: North Carolina Supreme Court

101 S.E. 208

178 N.C. 595

NORFOLK SOUTHERN RY. CO. ET AL. v. SMITHERMAN ET AL.

No. 481.

Supreme Court of North Carolina

December 3, 1919

Appeal from Superior Court, Montgomery County; Harding, Judge.

Action by the Norfolk Southern Railway Company against T. J Smitherman and the Lexington Grocery Company in which the Raleigh, Charlotte & Southern Railway Company was admitted as a party plaintiff. Judgment for defendants, and plaintiffs appeal. New trial ordered.

The declarations of an agent made after the event and as a mere narrative of a past occurrence are not competent against the principal.

Limitations of authority known to a person dealing with an agent are as binding on such person as on the agent, and he can acquire no rights against the principal by dealing with the agent contrary thereto.

The plaintiffs alleged that defendants had trespassed upon certain land described in the complaint, and ask for damages. The defendant T. J. Smitherman and wife conveyed to the Durham & Charlotte Railway Company the land which is situated in the town of Troy, with the following habendum in the deed:

"To have and to hold the aforesaid tract of land, with the appurtenances and every part thereof, unto the said party of the second part, its successors and assigns, to their proper use and behoof forever; to be used by the said party of the second part, its successors and assigns, for the purpose of erecting and maintaining thereon passenger and freight railroad station, and the proper appendages thereto, and to transact on said granted premises the usual operations and business of a common carrier of freight and passengers, and for no other purpose or purposes whatsoever."

The deed also contained the following clause:

"In the event the said parties of the second part, its successors and assigns, shall discontinue the use of the aforesaid granted station site for the purposes hereinbefore named, then, in that event, the aforesaid granted station site, with all the appurtenances thereto belonging, shall revert to the said parties of the first part, their executors, administrators, and assigns."

The plaintiff, Norfolk Southern Railroad Company has acquired all the rights which the Durham & Charlotte Railway Company had under said deed, subject to the restrictions of the habendum and clause of forfeiture above set forth.

The plaintiffs claim the land and the structures thereon consisting of station house, tracks, etc., which were placed there by the Durham & Charlotte Railway Company, and the defendants allege that the property, and all rights therein have been forfeited by violation of the terms of the deed, whereby the same reverted to the defendants.

The jury returned the following verdict:

"(1) Is the plaintiff, the Norfolk Southern Railway Company, the owner of the land described in the complaint as alleged? Answer: No.

(2) Did the defendant, prior to the commencement of this action, unlawfully enter upon the lands described in the complaint and commit a trespass thereon as alleged? Answer: No.

(3) What damage, if any, is the plaintiff entitled to recover of the defendants for such unlawful entry and trespass as alleged? Answer: Nothing.

(4) Did the plaintiff unlawfully cause to be issued a restraining order out of this court restraining the defendants from entering upon the lands described in the complaint as alleged in the answer? Answer: Yes.

(5) What damage, if any, are the defendants entitled to recover of the plaintiffs for unlawfully causing such restraining order to be used as alleged? Answer: $500.00 (five hundred dollars)."

Evidence was taken upon this issue, and, upon the examination of the defendants' witness W. I. Myrick, he was permitted to testify to a statement of S. T. Brown, plaintiff's local agent at Troy, to the effect that the property no longer belonged to the railway company, and it would have nothing more to do with it, as it then was the property of Mr. Smitherman. Brown delivered the key of the old building to the witness at that time. Plaintiff's objection to this testimony was overruled.

There was evidence that the plaintiffs had erected a new building on the premises, where it had its ticket office and received some freight, but that it still used the old building and its appurtenances for the heavier freight and received such freight and shipped it from that building. It had received, from the old building, from defendant Smitherman, goods which were manufactured in its cotton mill near by, and shipped the same on cars which were loaded at the old building, and there was other evidence of the continued use of the old building for the purpose of storing and handling heavy freight, or "overflow freight," until this action was commenced on August 23, 1912.

The court instructed the jury, under the issues submitted, to inquire and find whether the plaintiff had violated the stipulations of the deed and the clause of forfeiture, and gave these instructions, among others:

"The burden is upon the defendants to satisfy you by the greater weight of the evidence that the plaintiff has ceased to use it for all purposes which they had a right to use it for under this deed; that is, ceased to use it for a passenger station and for a freight station, ceased to use appendages, the cartway, the car tracks, and any other appendages which you may find they had in connection therewith; ceased to use that property in any transaction usually conducted by a common carrier

...