Shepard v. Suffolk & C. R. Co

• Decision Date: 27 February 1906
• Citation: 140 N. C. 391,53 S.E. 137
• Court: North Carolina Supreme Court
• Parties: SHEPARD. v. SUFFOLK & C. R. CO.

53 S.E. 137

(140 N. C. 391)

SHEPARD.

v.SUFFOLK & C. R. CO.

Supreme Court of North Carolina.

Feb. 27, 1906.

1. Railroad — Construction — Cattle Guards.

Revisal 1905, § 2001, requiring railroads, passing through inclosed lands, to construct and maintain cattle guards at the point of entrance upon and exit from said lands, applies to lots in a town and to land in stock law territory, as well as to tracts of land in the country and in territory in which the stock law is not in force.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 315-318.]

2. Same—Rights in Land—Deeds.

A deed conveying land to a railroad for a right of way gives the railroad no more rights than it would have acquired to such land by condemnation.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 163.]

Appeal from Superior Court, Chowan County; Ward. Judge.

Action by W. B. Shepard against the Suffolk & Carolina Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Pruden & Pruden, for appellant.

C. S. Vann, for appellee.

CLARK, C. J. The plaintiff owned a lot of two acres in the town of Edenton, which was inclosed and used by him to pasture cows and horses. He conveyed a right of way through it to defendant railroad company, who tore down the fence beyond the right of way and failed to erect a cattle guard at the entrance and exit to the lot. The plain-tiff sued for damages to the fence and for failure to erect cattle guards. There was evidence that the rental value of the lot was reduced from $4 to $3 per month by the failure to erect such guards. It was in evidence that the ordinances of the town forbade live stock from running at large therein. The defendant asked the court to charge that in view of such ordinance the defendant was not required to erect cattle guards at the entrance to and exit from the plaintiff's lot. The court refused to so charge, and the exception to such refusal is the sole point presented, for the defendant does not resist that part of the verdict which assessed $15 for damages to the fence, but appeals from the assessment of $26 damage from failure to put in the cattle guards.

Revisal 1905, § 2601, reads as follows: "Every incorporated company owning, operat-ing or constructing, or which shall hereafter own, operate, or construct, or any company which shall be hereafter incorporated and shall own, operate, or construct any railroad passing through and over the land of any person now inclosed or which may hereafter become inclosed, shall at...