Purifoy v. Richmond & D. R. Co

• Decision Date: 16 February 1891
• Court: North Carolina Supreme Court
• Parties: Purifoy . v. Richmond & D. R. Co.

12 S.E. 741

108 N.C. 100

Purifoy .

v.Richmond & D. R. Co.

Supreme Court of North Carolina.

Feb. 16, 1891.

Junction of Railroads — Filing Map of Location—Title to Right of Way.

1. When a railroad is empowered to connect with another railroad "at the city of Charlotte, at the point which may be found most practicable, " and the connection is made at a point 1, 000 yards outside the city limits but at the most practicable point, this is within the charter. "At" does not necessarily mean "in" the city.

2. When authority is given to connect with the C. & S. C. R. R., or with the N. C. R. R., at Charlotte, and the railroad locates its line, and proceeds to construct it to a junction with the N. C. R. R., but a few months before its completion to the latter point crosses another railroad which connects with the C. & S. R. R., and, by permission of this latter railroad, it runs its cars temporarily over it to the C. & 8. C. R. R., (laying down a third rail by reason of difference in gauge,) this is not a "construction of its railroad to a junction with the C. & S. C. R. R., " which deprives it of its election to connect with the N. C. R. R. ¹

3. Where the railroad was completed through the locus in quo prior to the act of 1872, (Code, § 1952,) it was not necessary to the validity of the location that a map of the route should be filed.

4. When the charter provides that in the absence of any contract the corporation acquires title to 100 feet on each side of the track, and, if no claim for damages is brought in two years from the completion of that part of the road, it is barred, the corporation has a valid title to the right of way as its track is completed. Railroad Co. v. McCaskill, 94 N. C. 746.

5. The title of the railroad to the right of way once acquired cannot be lost by occupancy as to any part of it by the lapse of time. Code. § 150; Railroad Co. v. McCaskill, 94 N. C. 746.

6. In a civil action, when there is no conflict of evidence, the judge should direct the verdict to be entered.

(Syllabus by the Court.)

Appeal from superior court, Mecklen burg county; Philips, Judge.

Dowd & Son, for appellant.

D. Schenck and G. F. Bason, for appellee.

Clark, J. Acts Sp. Sess. 1868, c. 8, incorporated the Air Line Railroad of South Carolina, and authorized it "to construct, equip, and operate its road within the limits of this state from any point on the South Carolina line to such point on the Charlotte & South Carolina Railroad orthe North Carolina Railroad at Charlotte as shall be found most practicable, " and gave the company "all the rights, powers, and privileges conferred on the Charlotte & South Carolina Railroad by chapter 84, Acts 1846-47." Sections 25 and 27 of this last act give the corporation a right of way of 100 feet on each side of the center of the road-bed, reserving to the owners the right to apply for an assessment of damages within two years from the completion of that part of the road, and, if application is not made within that time, the claim is barred. By a succession of charters and conveyances, all of which were in evidence and are set out in the record, the rights conferred by aforesaid charter of 1868 have been transferred to and are vested in the Atlanta & Charlotte Air Line Railroad Company, the principal defendant. The plaintiff sues in ejectment to recover land occupied by the track of defendant Atlanta & Charlotte Air Line Railroad, and damages for use and occupation. The locus in quo lies east of the Atlanta & Charlotte Air Line Railroad Trade-Street Depot, in Charlotte, and between said depot and the junction of the Atlanta & Charlotte Air Line Railroad with the North Carolina Railroad, which last point is 1, 000 yards east of the city limits of Charlotte. The plaintiff's entire tract lies within the 100 feet from the center of the track of the defendant Atlanta & Charlotte Air Line Railroad Company, and said company in its answer, by way of counter-claim, sought to recover possession of the whole of said lot. Two sets of issues were submitted by the court, one as to plaintiff's right to recover the land covered by the road-bed and damages, the other as to defendant's right to recover the whole tract, it being within the 100 feet. There was no conflict of evidence, and the court instructed the jury that they should return a verdict in favor of the defendant upon all the issues, and it was so entered. The plaintiff excepted to such direction, and to the judgment, and appealed. The plaintiff contends:

1. That the Atlanta & Charlotte Air Line Railroad Company, having elected to construct its road to a junction with the Charlotte & South Carolina Railroad, could not afterwards change it to connect with the North Carolina Railroad, and asked the court so to charge. But the evidence did not support this view. There was no evidence that the Atlanta & Charlotte Air Line Railroad Company ever located its line or constructed its road to...