Wearn v. North Carolina R. Co.

• Court: North Carolina Supreme Court
• Writing for the Court: BROGDEN, J.
• Citation: Wearn v. North Carolina R. Co., 191 N.C. 575, 132 S.E. 576 (N.C. 1926)
• Decision Date: 14 April 1926
• Docket Number: 457.
• Parties: WEARN et al. v. NORTH CAROLINA R. CO. et al.

132 S.E. 576

191 N.C. 575

WEARN et al. v. NORTH CAROLINA R. CO. et al.

No. 457.

Supreme Court of North Carolina

April 14, 1926

Appeal from Superior Court, Mecklenburg County; Lane, Judge.

Action by J. H. Wearn and another against the North Carolina Railroad Company and another. From the judgment, defendants appeal. No error.

Railroad granted right of way over street held not entitled to claim easement on adjacent land.

In 1844, Peter M. Brown purchased lots 239, 240, 241, and 242 in square 37, ward 2, of the town of Charlotte, and also lots 237, 238, 248, 249, 260 and 261, in square 36 of said town. Brown also owned lots 271, 272, 282, and 283 in block 37. Square 37 was situated on the east side of A street, and square 36 was situated on the west side of A street. A street was a public street of the town of Charlotte, extending from the corporate limits as defined at that time, in a westerly direction through the town. A street was situated between College street on the west and B street or Brevard street on the east, and was therefore the first street east of College street and parallel therewith. At the time of the transaction referred to in the complaint, A street was a part of a wheat field and not actually located. The map of the town of Charlotte did not show the width of the street, but at the trial there was evidence tending to show that it was approximately 22 feet wide. Fourth street ran approximately east and west, parallel to Trade street, being one block south of Trade street, and intersected A street.

On January 14, 1852, the common council of the town of Charlotte conveyed to the North Carolina Railroad:

"All that piece or parcel of land situated, lying and being in the town of Charlotte and known in the plan of said town by A street from the point from which said railroad enters the town of Charlotte on the northeast and through to the depot lots of said railroad and also so much of lots 748, 749, as described on the plot of said town, as is necessary for the track of said road, it being understood and agreed on the part of said railroad company that the crossing of A street by the intersection of Third, Fourth, Fifth, Sixth Seventh, Eighth, Ninth, and also Trade streets shall not be obstructed, etc."

Thereafter on April 8, 1852, at a meeting of the board of commissioners of the town of Charlotte:

"It was resolved unanimously that A street from the corporate limits of said town on the east to the depot lots, formerly the Asbury property, be appropriated to the use of the North Carolina Central Railroad Company, together with so much of any of the lots, as now belong to said commissioners, *** as may be necessary for the construction of said railroad on condition that crossing said A street by the intersections of Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth streets, shall not be obstructed so as to prevent or hinder free passage of all persons who may desire to pass over said A street or railroad, etc."

On January 22, 1852, Peter M. Brown, Thomas Trotter, Thomas J. Holton, and other property owners owning property abutting said A street executed and delivered to the North Carolina Railroad a deed as follows, to wit:

"Know all men by these presents, that we, who have hereunto subscribed our names and affixed our seals all of the county of Mecklenburg and state of North Carolina, for and in consideration of the sum of one dollar to each one of us severally and respectively in hand paid by the North Carolina Railroad Company, the receipt whereof is hereby acknowledged, and for the further consideration of the benefits and advantages which each one of us will severally and respectively derive from the construction of said railroad, have given, granted and surrendered, and by these presents do give, grant and surrender unto the said North Carolina Railroad Company the right, power and privilege by themselves their every tract or lot of land belonging to or owned by and held by us severally and respectively in the town of Charlotte in said county adjoining the next street lying to the east of College street and running parallel therewith through and over which said lots and lands they may desire to construct their contemplated railroad and to lay out and construct their said railroad on said lots and lands at their will and pleasure, and to use the same so long as said company shall have the same use for the purposes of a railroad and the said railroad shall continue, or the said company may have a corporate existence, and should said road cease to exist or said corporation dissolve and discontinue their operations, then the right, power and privilege hereby granted shall cease and discontinue and the lands hereby granted shall revert.

It is further expressly understood that so much of said lots and lands on their eastern limits is hereby granted as the said company may deem necessary together with said street east to construct the necessary track of their said railroad, with its appropriate and necessary excavations, embankments and culverts.

Witness our hands and seals this 22d of January, 1852."

Thereafter, on April 3, 1852, Peter M. Brown conveyed to North Carolina Railroad Company in fee lots 260 and 261, in square 36, and lots 271, 272, 282, and 283, in square 37; said lots being further designated as follows: Bounded by Third street, B street, A street, and the lots of the said P. M. Brown.

Thereafter, a partition proceeding was instituted by the heirs at law of P. M. Brown for the sale of lots 239, 240, 241, and 242, which is the property now in controversy, and on September 29, 1876, deed was made by F. S. DeWolf, commissioner, to John L. Brown "conveying lots 240, 241, 242, and a fraction of lot 239, in square 37, fronting 357 feet on Fourth street, and bounded by B street on the east and the North Carolina Railroad on the west."

Thereafter the title to said land became vested in L. W. Crawford, who conveyed to the plaintiffs, J. H. and W. R. Wearn, on January 16, 1895, by the following description:

"All those certain lots or parcels of land in the city of Charlotte and known as lots Nos. 242, 241, 240, and all of lot 239 in square 37, except so much of lot 239 as is owned by the North Carolina Railroad, it being the intention to convey the three lots and fraction of another lot mentioned in the deed made by John L. Brown to the said Christiana E. Brown, dated 3d of October, 1876, and recorded in the register's office in Mecklenburg county in Book 15, page 233."

The plaintiffs under their said deed entered into the possession of said land and have erected structures thereon. The plaintiffs allege:

"That recently a controversy has arisen between the plaintiffs and the defendants as to the right of way which said defendants acquired under and by virtue of the right of way deed from Peter M. Brown and others hereinbefore referred to; the plaintiffs claiming and contending that the defendants' right of way is and was confined by the terms of said deed to the location and maintenance of a single track in, along, and over A street, and the defendants claiming and contending that they acquired, by virtue of said right of way deed, a right of way of the width of 100 feet on each side of the center line of its railroad as originally located on A street, between Third and Fourth streets in said city."

This suit, therefore, was brought by plaintiffs to remove a cloud from their said title arising from the claim of defendants of a right of way over said lots 239 and 240 abutting A street. The defendants offered evidence tending to show that its track was originally laid east of A street over and along lot 239 claimed by the plaintiffs, and that said main line track is now 18.76 feet east of A street and upon said lot 239, and introduced, in support of said claim, the testimony of old men to the effect that the main line track was now in the same location as it was originally laid in 1853 or 1854.

The issues and answers of the jury thereto were as follows:

(1) Are the plaintiffs the owners in fee simple of lots Nos. 240, 241, 242, and 239, square 37 of the city of Charlotte, and bounded by Brevard street on the east and the North Carolina Railroad on the west? A. Yes.

(2) If so, have the defendants any right or easement over said lots or any of them? A. Yes.

(3) If so, how far east of the easterly limits of A street does such right or easement extend over and upon the said lots or any part of them? A. 39 feet.

The defendants objected to the issues so submitted to the jury and tendered the following issues: (1) Were any of the tracks or necessary fills connected therewith originally located on the lots Nos. 239, 240, 241, and 242, in square 37 of Charlotte at the southeast corner of intersection of South A street and East Fourth street? (2) If so, where was the center line of main line track as originally located at said points? (3) Where was the center line of main line track of said land located on October 3, 1876?

Judgment was entered upon the verdict as rendered by the jury, and the defendants appealed.

W. C. Davis, of Charlotte, and Manley, Hendren & Womble, of Winston-Salem, for appellants.

Cansler & Cansler and John M. Robinson, all of Charlotte, for appellees.

BROGDEN J.

The question presented by the record is whether or not the defendants have an easement or right of way over the lands of plaintiffs; and, if so, the extent of such easement or right of way.

An easement or right of way, under the law, is acquired by three methods, to wit: (1) Purchase or grant; (2) condemnation; (3) statutory presumption. Barker v. R. R., 49 S.E. 115, 137 N.C. 214; Griffith v. R. R., 131 S.E. 413, 191 N.C. 75.

The defendants claim an easement by virtue...