Ruffin v. Seabd. Air Line Ry

• Decision Date: 24 November 1909
• Citation: 66 S.E. 317,151 N.C. 330
• Parties: RUFFIN. v. SEABOARD AIR LINE RY. et al.
• Court: North Carolina Supreme Court

(151 N.C. 330)

66 S.E. 317

RUFFIN.

v.SEABOARD AIR LINE RY. et al.

Supreme Court of North Carolina.

Nov. 24, 1909.

1. Licenses (§ 46^*) — Real Property — Nature op License—How Created.

A license in real estate arises from a grant by the owner thereof, and is as a rule voidable at his will, and hence a reservation or exception in a deed is not a license in favor of the grantor.

[Ed. Note.—For other cases, see Licenses, Cent. Dig. § 100; Dec. Dig. § 46.*]

2. Easements (§ 25*)—Duration—Exception in Conveyance—Words of Inheritance.

Where an easement is created by way of an exception in a deed, words of inheritance are not necessary to create a perpetual easement in fee.

[Ed. Note.—For other cases, see Easements, Cent. Dig. § 71; Dec. Dig. § 25.*]

3. Easements (§ 25*)—Duration — Reservation in Deed—Words of Inheritance.

A reservation of an easement intended to be appurtenant to the land retained by the grantor *s not within the rule that the word "heirs" must bo used to create an estate which will extend beyond the grantor making the reservation.

[Ed. Note.—For other cases, see Easements, Cent. Dig. § 71; Dec. Dig. § 25.*]

4. Easements (§ 25*)—Reservation in Deed —Words of Inheritance.

A grantor in a deed of land for a depot site, stipulating that the grantor shall have the right to erect a warehouse on the land, provided he does not encroach on any portion of the depot ground of the width of 115 feet on the grade, retains for warehouse purposes a determinable fee in the land conveyed outside of the 115 feet for the erection of a warehouse, and this right is an easement appurtenant to the ownership of the adjacent land of the grantor, not terminating at his death, whether the right is created by way of exception, in which case words of inheritance are not necessary to create the right in fee, or whether the right is a reservation, which, under Code 1883, § 1280, in force at the time of the execution of the deed, must be construed to be in fee, unless a contrary intent appears, as the intention shows a perpetual right.

[Ed. Note.—For other cases, see Easements, Cent. Dig. § 71; Dec. Dig. § 25.*]

Appeal from Superior Court, Franklin County; Cooke, Judge.

Action by William H. Ruffin, administrator of J. F. Jones, deceased, against the Seaboard Air Line Railway and another. From a judgment for plaintiff, defendant Seaboard Air Line Railway appeals. Affirmed.

On July 17, 1885, J. F. Jones executed to the Louisburg Railroad Company a deed conveying a depot site at Louisburg, N. C, the metes and bounds of which are set forth in said deed. This deed contained the following stipulation: "It is further stipulated that the said parties of the first part shall have the right to erect a warehouse along the southwest side of said lands, and upon the southwest margin of said road, provided, they do not encroach upon any portion of the depot ground of the width of 115 feet on the grade, so that the railroad company shall have a width of depot grounds of at least 115 feet on the grade." In 1885 or 1886, J. F. Jones erected upon the margin of said land a warehouse extending a distance of about 23 feet over upon the land of the said railroad, but leaving an unobstructed width of 115 feet of depot ground. This warehouse has been used and occupied by J. F. Jones and his heirs and assigns continuously since its erection, and is now so used as a warehouse. J. F. Jones is dead, and William H. Ruffin has qualified as his administrator. In the course of the administration of the estate, it became necessary for the administrator to file a petition to sell the land upon which the warehouse was erected to make assets, and under said petition an order of sale was made, and William H. Ruffin appointed commissioner. The lot was sold to J. M. Allen for the sum of $2,205; but upon investigation it developed that the warehouse situated on the said lot extended 23 feet beyond the boundary of the land conveyed to the Louisburg Railroad Company, which lot now belongs to the Seaboard Railroad Company. J. M. Allen thereupon refused to complete the purchase unless someconcession in price was made by the commissioner. The commissioner refused to make any concession, and brought this action to force the said J. M. Allen to take the property and pay the price agreed upon. The Seaboard Air Line was made a party defendant in this action, and filed answer therein setting up its right to the entire tract conveyed to the Louisburg Railroad Company by J. F. Jones free from any right of the heirs or assigns of said J. F. Jones to occupy any part thereof for any purpose whatever.

The facts were agreed upon, and the matter submitted to Cooke, J., at January term, 1909, of Franklin. Upon the facts found, in accordance with the facts agreed, Judge Cooke rendered the following decree: "It is therefore by the court ordered, adjudged, and decreed that the stipulation in said deed contained, reserved to the said J. F. Jones, a descendable, assignable, and transferable easement in, to, and upon said strip of land described in the pleadings, on the southwest side or margin of said depot site, of the width of about 23 feet, for the use and occupation thereof for warehouse purposes, and that such easement descended to the heirs and assigns of the said J. F. Jones, and that the same is therefore salable and assignable by the said administrator and commissioner; but it is further ordered, adjudged, and decreed that such easement is limited to the use and occupation of said strip of land for warehouse purposes only. It is further ordered, adjudged, and decreed that said administrator and commissioner tender to the purchaser a deed for the land so sold, including said easement, as herein declared, and that upon the payment of the purchase price bid, to wit, $2,205, with Interest on the same from May 25, 1908, till paid, at the rate of 6 per cent, per annum, the said commissioner deliver such deed to him. In the event of the refusal of said purchaser to take conveyance as aforesaid, it is further ordered, adjudged, and decreed that said Wm. H. Ruffin, commissioner, make resale of said premises, after 30 days' advertisement in some news paper, as required by law, and that at such sale he shall sell separately the easement in, to, and upon said strip of land, about 23 feet in width, along the southwest margin of the depot site of the defendant railway as herein declared, and shall sell separately the remainder of said land and premises, to wit, that part of the land owned by said J. F. Jones in fee. Said commissioner will report his proceedings herein to this court. It is further ordered that the costs of this action shall be paid by the commissioner out of the proceeds of sale." The defendant Seaboard Air Line Railway excepted to the foregoing decree and appealed.

The following is a plat of the property in...