Raleigh & A. Air-Line R. Co. v. Sturgeon

• Decision Date: 09 March 1897
• Citation: 26 S.E. 779,120 N.C. 225
• Parties: RALEIGH & A. AIR-LINE R. CO. v. STURGEON.
• Court: North Carolina Supreme Court

26 S.E. 779

120 N.C. 225

RALEIGH & A. AIR-LINE R. CO. v. STURGEON.

Supreme Court of North Carolina

March 9, 1897

Appeal from superior court, Wake county; Boykin, Judge.

Action by the Raleigh & Augusta Air-Line Railroad Company against E B. Sturgeon to recover possession of land alleged to be within its right of way. Judgment for plaintiff, and defendant appeals. Reversed.

Armistead Jones and H. E. Norris, for appellant.

J. B Batchelor and MacRae & Day, for appellee.

MONTGOMERY J.

The plaintiff company, did not acquire its right of way by either condemnation or purchase. Its claim to the title and absolute and actual possession of the whole of the 100 feet on both sides of its track is founded upon what it contends is the legal effect of one of the provisions of its charter (section 9, c. 26, Acts 1863), which is in the following words: "That in the absence of any contract or contracts with said company in relation to land through which the said road may pass, it shall be presumed that the land on which the said road may be constructed, together with one hundred feet on each side of the center of the track has been granted to the company by the owner, and the said company shall have good title and right thereto, and shall hold and enjoy the same as long as the same may be used for the purposes of the company, unless said owner, at the time of finishing the part of the road on his land, shall apply for the assessment of the value of the land within two years next after the finishing of such portion of the road, the words of the statute (the company's charter) vest the estate of the owner in the company as effectually for all intents and purposes as if a grant for the land had in fact been issued. In support of its contention the plaintiff relies on the decision in Railroad Co. v. McCaskill, 94 N.C. 746. In that case it does seem to be decided that under a provision of a charter substantially like the one before us the facts being about the same as in this case, the title to the land passed to the company, and that it was entitled to recover the possession, whether necessary for the company's purposes or not. Yet there seemed to be a doubt as to the correctness of the position in the mind of the court. In that case the court said: "A permissive use of part of it [right of way] by another, when no present inconvenience results to the company, is not a surrender of rights of property; and, indeed, to expel an occupant under such circumstances would be a needless and uncalled-for injury. This may suspend, but does not abridge, the right of the company to demand restoration when the interests of the road may require its use." The effect of that decision was weakened by the opinion of the court in Ward v Railroad Co., 109 N.C. 358, 13 S.E. 926, where it is said: "We take notice of the fact that, whatever may be the privilege of railroad companies to exercise dominion over their whole right of way, the universal custom has been to allow the abutting owner, whose land has been taken for the use of the public, to cultivate up to the side ditches that are kept open for the purpose of proper drainage by the company." In the same opinion it is declared to be the duty of railroad companies in...