Sparrow v. Dixie Leaf Tobacco Co.

• Decision Date: 08 November 1950
• Docket Number: No. 378,378
• Citation: 232 N.C. 589,61 S.E.2d 700
• Parties: SPARROW et al. v. DIXIE LEAF TOBACCO CO., Inc. et al.
• Court: North Carolina Supreme Court

Page 700

61 S.E.2d 700

232 N.C. 589

SPARROW et al. v. DIXIE LEAF TOBACCO CO., Inc. et al.

No. 378

Supreme Court of North Carolina.

Nov. 8, 1950

Albert W. Cowper, Kinston, for plaintiff appellants.

R. Mayne Albright, Raleigh, for defendant Atlantic & North Carolina R. Co. appellee.

Allen, Allen & Laroque, Charles H. Taylor, all of Kinston, and Warren S. Perry for defendants Dixie Leaf Tobacco Co., Inc., and Atlantic & East Carolina R. Co. appellees.

BARNHILL, Justice.

The lessor railroad acquired its right of way under and by virtue of Sec. 27, Chap. 136, Laws 1852. It thus acquired and possesses nothing more than an easement for railroad purposes, with the right of actual possession of so much thereof as is necessary for the operation of its road and to carry on its business as a common carrier of freight and passengers with dispatch and convenience. Railroad Co. v. Sturgeon, 120 N.C. 225, 26 S.E. 779; Shields v. Norfolk & C. R. Co., 129 N.C. 1, 39 S.E. 582; Railroad v. Olive, 142 N.C. 257, 55 S.E. 263; Coit v. Owenby-Wofford Co., 166 N.C. 136, 81 S.E. 1067; Carolina & N. W. Ry. Co. v. Piedmont Wagon & Manufacturing Co., 229 N.C. 695, 51 S.E.2d 301; Anno. 94 A.L.R. 525, 149 A.L.R. 380.

It may devote the right of way to any use which is indispensable to, or which will facilitate the fulfillment of, the objects of its corporate existence as a common carrier, or which is reasonably in aid of those purposes. 44 AJ 338. Ownership of the easement carries with it the right to use the property within the bounds of the right of way for any purpose the primary object of which is the furtherance of the business of the railroad. So long as the use to which the easement is subjected comes within this rule, the owner of the servient estate has no cause to complain, for the grant of the easement was for such purpose and constitutes a part of the dominant estate. The use, however, must be reasonably necessary for or convenient to the operation of the railroad. Hodges v. Atlantic Coast Line R. Co., 196 N.C. 66, 144 S.E. 528; Carolina & N.W.Ry. Co. v. Piedmont Wagon & Manufacturing Co., supra.

On the other hand, the railroad company possesses no right or authority to use or to let the property for private or nonrailroad purposes. Anno. 94 A.L.R. 524, 528, 535, 149 A.L.R. 380. It cannot erect or permit the erection of warehouses, factories, and the like, not necessarily connected with the use of their franchise, within the limits of their right of way. When property is taken for railroad purposes, the fee remains with the owner and, outside of the authorized use, the proprietary right is in the original owner. Lyon v. McDonald, 78 Tex. 71, 14 S.W. 261; Bond v. Texas & P. R. Co., 181 La. 763, 160 So. 406; Lance's Appeal, 55 Pa. 16; Rock Island & P. R. Co. v. Leisy Brewing Co., 174 Ill. 547, 51 N.E. 572; Anno. 94 A.L.R. 528, 149 A.L.R. 378.

The reason underlying the rule which prohibits the use of the railroad right of way for nonrailroad purposes or purposes which are not primarily in furtherance of the business of the corporation as a common carrier is twofold.

(1) A railroad is a quasi-public corporation and its right to acquire a right of way by condemnation is founded upon the fact that the property thus acquired is to be used for the benefit of the general public. It is acquired for the public use and so its use must be confined to that purpose.

(2) To subject the property to an additional use of a private nature, not incident to or in furtherance of the operation of the railroad, imposes on the servient estate an additional burden for which the easement was not acquired and the owner has not been compensated.

It is argued here that the uses to which the right of way may be subjected rest within the sound discretion of the corporate authorities. But the rule is not quite so broad. While the railroad is the judge of the necessity of extending the use of its right of way, the proposed additional use must be incidental to or in furtherance of the business of the railroad as a common carrier--a quasi-public use. Only so long as the use is in furtherance of the business of the railroad does the extent of that use rest with the railroad authorities, and the mere decision of the officers of the railroad that a proposed use is a railroad use does not make it so.

The only limit upon the use which the railroad company may make of the land within the bounds of its easement is that it shall be a use authorized by its incorporation as a common carrier. Within that limit the manner in which the land shall be used or occupied is in the discretion of the corporation. Southern R. Co. v. Lissenbee, 219 N.C. 318, 13 S.E.2d 561. Peirce v. Boston & L. R. R., 141 Mass. 481, 6 N.E. 969 The right to use, however, is definitely limited to railroad purposes. Any use of the land for other purposes is not protected by its authority. Anderson v. Interstate Mfg. Co., 152 Iowa 455, 132 N.W. 812, 36 L.R.A.,N.S., 512; Lyon v. McDonald, supra.

When the use by third parties is primarily for the benefit of the railroad as a common carrier, then it is for railroad purposes even though incidental benefits flow to the private user. On the other hand, if the use is primarily private in nature the fact that the railroad is incidentally benefited thereby, through the acquisition of a new customer or increased shipments, does not convert it into a railroad use. Coit v. Owenby, supra; Sturgeon v. Wabash Ry. Co., 223 Mo.App. 633, 17 S.W.2d 616; In re Chicago & N. W. Ry. Co., 7 Cir., 127 F.2d 1001; Anno. 94 A.L.R. 928; 149 A.L. R. 378.

Every new or enlarged business within a municipality served by a railroad enhances the probability of additional freight business for the railroad. But if the mere fact the user of railroad property is a customer, or potential customer, and the use tends incidentally to enhance the expectation of obtaining additional freight business, converts the use for private business into a use in furtherance of the business of the railroad as a common carrier, the railroad could let its right of way to all types of private enterprises to the complete exclusion of the owner of the fee. Lance's Appeal, supra; Rock Island & P. R. Co. v. Leisy Brewing Co., supra, Anno. 149 A.L. R. 378, 94 A.L.R. 529....