Starnes v. Raleigh, C. & S. Ry.
|United States State Supreme Court of North Carolina
|87 S.E. 43,170 N.C. 222
|STARNES v. RALEIGH, C. & S. RY.
|01 December 1915
Appeal from Superior Court, Mecklenburg County; Lane, Judge.
Action by T. M. Starnes against the Raleigh, Charlotte & Southern Railway. Judgment for plaintiff, and defendant appeals. Affirmed.
Railroad company accepting deeds for right of way procured by person not authorized as its agent held bound by his false representations inducing the execution of the deed.
This is a civil action, tried upon these issues:
"(1) Is the plaintiff the owner of the lands described in the complaint? Answer: Yes.
(2) Did the defendant enter upon the lands of the plaintiff and lay off and appropriate to its use as a right of way for railroad purposes a strip of land 100 feet in width extending in the rear of the plaintiff's house and barn through the said lands a distance of about one-half mile? Answer: Yes.
(4) Was the execution of the said paper writing procured by fraud and misrepresentation, as alleged in the plaintiff's replication? Answer: Yes.
(5) What compensation, if any, is the plaintiff entitled to recover of the defendant for entering upon said lands and appropriating the said right of way for railway purposes? Answer: $825."
From the judgment rendered, defendant appealed.
Tillett & Guthrie, of Charlotte, for appellant.
J. D McCall, of Charlotte, and Newell & Newell, for appellee.
The plaintiff seeks to recover permanent damages for the appropriation of a right of way through his farm by defendant. The right of way is immediately in the rear of plaintiff's residence and within 25 steps of his barn and runs the entire length of the farm, 100 feet in width. The excavation is 16 1/2 feet deep and 36 feet wide. The evidence shows that the land actually appropriated by the defendant was between 6 and 7 acres. The excavation cut the plaintiff off from the main part of his plantation, and was cut through a 20-acre field of his finest farming land. Incidental to taking the right of way, the defendant destroyed $200 worth of cotton.
The defendant claims immunity from liability for this damage by virtue of a deed executed by defendant June 3, 1912, granting to the defendant a right of way in fee simple across his lands as said railroad may be finally located, which strip of land shall be 100 feet in width; that is to say, 50 feet on each side of the center of the main line of the track.
It is alleged by plaintiff that the deed granting this "blanket right of way" was executed at the instance and by reason of the false and fraudulent representations of one Thos. W. Allen. The defendant denies such allegation, and relies upon these defenses: (1) That Allen was not its agent, and that it is not bound by his representations; (2) that there is no sufficient evidence of fraud. There is no evidence that Allen was the duly appointed agent of defendant to procure the right of way. It appears that, in order to procure the construction of a much-needed railroad, Allen volunteered to procure rights of way for defendant. Nevertheless the defendant is bound by all that Allen did and said in order to procure the execution of this deed, which is made directly to defendant, and not to Allen. The defendant does not claim to be a purchaser for value without notice, for it paid nothing for the right conferred. When it accepted the deed for the right of way procured by Allen, it accepted it cum onere. It could not hold onto the gift and at the same time repudiate all responsibility for the manner in which it had been obtained. Whether duly appointed for that purpose or not, there is evidence that defendant knew that Allen was procuring rights of way in that neighborhood to facilitate the construction of its road for which the defendant paid nothing. The defendant ratified Allen's acts, and is consequently responsible for them. The relation of principal and agent may be created by ratification with the same force and effect as if the relation had been created by appointment, as where one person adopts and takes the benefit of an act done without his authority or in excess of it. 1 Meclein, § 435; Porter v. Railroad, 132 N.C. 71, 43 S.E. 547; Trollinger v. Fleer, 157 N.C. 81, 72 S.E. 795; Taylor v. Nav. Co., 105 N.C. 484, 10 S.E. 897.
It is contended that there is no sufficient evidence of fraud, and that the court should have so charged as requested. In this connection it is insisted the court should have excluded the declarations of Allen testified to by plaintiff. They were plainly competent as part of the res gestæ, having been made immediately preceding and at the time of the execution of the deed, and being the cause of its execution. These declarations are the basis of plaintiff's cause of action. He must first prove these representations before he can establish their false and fraudulent character.
The plaintiff testified that at the time he executed the deed for the blanket right of way this conversation took place between him and Allen, and in consequence of...
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