Starnes v. Raleigh, (No. 437.)

• Docket Nº: (No. 437.)
• Citation: 87 S.E. 43, 170 N.C. 222
• Case Date: December 01, 1915
• Court: United States State Supreme Court of North Carolina

87 S.E. 43
170 N.C. 222

STARNES.
v.
RALEIGH, C. & S. RY.

(No. 437.)

Supreme Court of North Carolina.

Dec. 1, 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.

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.

"(3) Did the plaintiff execute the paper writing set forth in paragraph 3 of the defendant's answer, and recorded in Book 305, page 139? 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.

BROWN, J. 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-aere 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

[87 S.E. 44]

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; Trol-. linger 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 gestae, 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 which Allen said he signed the paper, viz.:

"This paper was presented to me by Mr. Thos. Allen. He is a neighbor, and lives right below me about two miles away. He presented

the paper to me. It was not drawn in my presence. I did not read this paper writing. Mir. Allen read some of it. I can't read to do no good."

The plaintiff further testified:

"Well, he said that the railroad could go through my land in spite of me. They could condemn it, and if they did, they would not allow me to cross it nor anything, and I told him then, I says: 'Mr. Allen, I tell you what I will do; I will sign the right of way to go by the rock road between my house and the big road.' And he said: 'If you do that, I will see that the road is put there.' Q. Why did you sign this paper giving him a right of way over your land at all? A. I done it because I was afraid they would just ruin me."

There is further evidence which warrants the inference that Allen knew at the time that the railroad would not be located by the rock road, and that he knew he had no control of its location, and that he used such fraudulent device to induce plaintiff to execute the deed. As soon as Allen secured plaintiff's signature to the right of way paper, he went to Robert Beaver's place, who lived 400 yards southwest of plaintiff on the same road. In answer to the question as to what Allen said to him, Beaver replied r

"Well, he [Allen] came up to Mr..Starnes' that morning, and to Mr. Ritch's, and got them to sign it; and from there he came on to my house to get me to sign it; and I said to him: 'Did Mr. Ritch and Mr. Starnes sign?' And he says: 'Mr. Ritch didn't; but Mr. Starnes did. I had to tell him a chunk of a lie to get him to do it.' "

It is not incumbent upon us to pass on the competency of this evidence, which was admitted by the court, as no such assignment of error is set dut or commented on in appellant's brief, and it is well settled that we will not consider others, although exception may have been taken at the trial. The representations in this case were not of a harmless promissory kind, but if the evidence is to be believed, were representations of a most material character, and if knowingly false, were made with the deliberate purpose to deceive. At least the jury seems to have been so impressed by the evidence.

It is well settled that a false affirmation made by a person with intent to defraud another, whereby that other receives damage, is the ground of an action in the nature of deceit. I'asley v. Freeman,...