Patrick v. Richmond & Danville R.R. Co.

• Decision Date: 31 October 1885
• Citation: 93 N.C. 422
• Court: North Carolina Supreme Court
• Parties: F. E. PATRICK v. THE RICHMOND & DANVILLE RAILROAD COMPANY.

93 N.C. 422

F. E. PATRICK

v.THE RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

October Term, 1885.

CIVIL ACTION, tried before Philips, Judge, and a jury at Spring Term, 1885, of MECKLENBURG Superior Court.

The facts fully appear in the opinion.

The plaintiff, in submission to the rulings of his Honor, took a non-suit and appealed.

Messrs. Jones & Johnston and A. M. Lewis & Son, for the plaintiff .

Messrs D. Schenck and Burwell & Walker, for the defendant .

SMITH, C. J.

The plaintiff and the president of the defendant company, acting upon its behalf, entered into the following contract:

“This agreement, made the first day of August, 1876, between the Richmond & Danville Railroad Company of the first part, and F. E. Patrick of the second part, witnesseth: That whereas the said F. E. Patrick is now operating and proposes to operate, a cotton compress in the town of Charlotte, N. C., at present located on the cotton platform of said company in said town, and for the sake of convenience of access to the railroad of the party of the first part, and in consideration of the increased facilities which he will thereby acquire for the conduct of said compress, wishes to secure the right to occupy an additional portion of the cotton platform belonging to said company and contiguous to their depot in said town.

Now, therefore, in consideration of the advantages that are likely to accrue to said company from the business and operations in which the said Patrick shall embark, and of the sum of one dollar to them paid, the receipt whereof is hereby acknowledged, the said Richmond and Danville Railroad Company hereby agree to rent to the said Patrick for the term of three years from the first day of August, 1876, (subject to revocation, as hereinafter provided), so much of their said platform as is embraced in the space marked red on the plat accompanying and forming part of this agreement, granting to said Patrick the right to erect at his own cost, suitable sheds over said portion of platform so rented as aforesaid, provided, however, the operations of said company are not thereby interfered with. And it is further agreed, that at the expiration of said term, the said Patrick shall have the privilege of renewing the same for an additional term of two years, on the same terms and conditions. It is understood that the location of the compress, and of the boiler operating the same, are to be the same as at present, and as indicated in the accompanying plat--the party of the second part expressly binding himself that the same shall not be changed except by the consent and under the direction of the party of the first part, and that the smokestack thereto shall at all times be provided with an efficient spark arrester, and the property of the party of the first part shall be in no wise endangered by fire on account of the operations of the party of the second part.

It is distinctly understood and agreed that the said Richmond and Danville Railroad Company, reserves the right to reclaim possession of said platform, and to recall and end all rights and privileges herein granted, at any time during the continuance of said term, whenever, in the judgment of the President or General Superintendent of said company, the interest of said company so require, after first giving thirty (30) days' notice in writing to said Patrick or his assigns, or to any party in the use and occupancy of said platform, of their (the said company's) intention to reclaim such possession, and the said Patrick hereby agrees to deliver possession of said platform to said railroad company on demand and notice as aforesaid.

And it is further agreed by the parties hereto, that in the event of said railroad company reclaiming at any time, possession of said platform, the said Patrick, his successors or assigns, shall remove, without cost, injury or loss to said company, within the period of sixty (60) days from notice of intention to so reclaim, the said compress and all sheds which may have been erected thereon.

Witness the following signatures this day and year herein first above written.

THE RICHMOND & DANVILLE RAILROAD COMPANY,

By A. S. BUFORD, Pres.

F. E. PATRICK.”

The complaint alleges that the plaintiff has observed all the conditions and specifications contained in the lease and devolving upon him, and continued his compress operations until the 23d day of December, 1877, when they were put a stop to by the entry of the officers and servants of the company, in the night time and during his absence, upon the premises, and their taking possession of the plaintiff's compress and other property used with it, without giving the notice required under the contract; and of their action he was soon after notified, as well as of the intention of the company to resist with force any attempt on his part to re-enter.

For this alleged wrongful dispossession and withholding of the plaintiff's property, and for the losses consequent from the breaking up of the plaintiff's business, he seeks redress in the present action, and demands large damages.

The defendant in its answer, denies the imputed wrongful act; avers that due and sufficient notice was given of the intended termination of the lease and the withdrawal of the rights and privileges attaching to it, and that notwithstanding and after the thirty days provided in the contract had expired, the plaintiff did not desist, but continued to carry on his compress operations as before, for sixty days more after the service of the notice; and that thereupon the defendant entered upon the premises, as it might lawfully do, and resumed possession of its platform whereon the compress was, notifying the plaintiff that he...