Utley v. Wilmington & W. R. Co

• Decision Date: 24 November 1896
• Citation: 25 S.E. 1021,119 N.C. 720
• Court: North Carolina Supreme Court
• Parties: UTLEY v. WILMINGTON & W. R. CO.

25 S.E. 1021

119 N.C. 720

UTLEY

v.WILMINGTON & W. R. CO.

Supreme Court of North Carolina.

Nov. 24, 1896.

Railroad Company — Appropriation OF Land — Damage—Limitation of Action— Color of Title.

1. Where the charter of a railroad company provides that when the company has appropriated land without authority no action shall be brought by the owner except a petition to have his damage assessed, and fixes no limitation of the action, such petition is neither an action of trespass nor one on a liability created by statute, within the meaning of Code Civ. Proc. § 155, subds. 2, 3, limiting such actions to three years. Land v. Railroad Co., 12 S. E. 125, 107 N. C. 72, followed.

2. An unregisteied deed, accompanied, since its execution, by the continuous possession of the premises by the grantee, constitutes color of title. Avent \. Arrington, 10 S. E. 991, 105 N. C. 389, followed.

Appeal from superior court, Cumberland county; Green, Judge.

Proceeding by Fanny L. TJtley against the Wilmington & Weldon Railroad Company for the appointment of commissioners of appraisal to determine and report the compensation defendant ought to pay plaintiff for constructing its roadway across her property without her consent, and without any proceeding of condemnation or compensation therefor. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

G. M. Rose, for appellant.

R. P. Buxton, for appellee.

MONTGOMERY, J. The defendant company on the trial below made numerous exceptions, but in the argument here it abandoned them all except the second and third, which are, in substance, as follows: "(2) Because Judge Hoke [at a previous term], upon objection by plaintiff, refused to submit an issue upon the statute of limitations, although asked to do so by defendant. (3) Because Judge Hoke held that the deed to the plaintiff from T. S. Lutterloh, administrator and commissioner, dated September 11, 1860, accompanied by possession, was color of title, although only recorded June 26, 1886, and although the railroad had been constructed across the lot in 1885." There was no error in the ruling of his honor upon either of the matters to which those exceptions were made. in the case of Land v. Eailroad Co., 107 N. C. 72, 12 S. E. 125, it was decided that the defendant there (the defendant here also) could not avail itself of the provisions of section 155, subds. 2, 3 (Statute of Limitations), of the Code, in actions like this, on account of peculiar features in its charter. The...