Parrott v. . R. R. , 165 N.C. 295 ( 1914 )

ALLEN, J., concurring; BROWN and WALKER, JJ., dissenting. (296) On 31 March, 1859, James M. Parrott, father of the plaintiff, George F. Parrott, and the Atlantic and North Carolina Railroad Company, entered into a contract under seal by which said James M. Parrott granted to said railroad company the right of way through his lands in the county of Lenoir in consideration of the agreement therein that said railroad company should establish a flag station where its track crossed the avenue running from Parrott's dwelling, and that upon proper notice passengers and freight would be put off and taken on at said flag station. This was within two years of the completion of the railroad through said lands. This contract was duly recorded in the office of the register of deeds of Lenoir County, where the land lies.

The jury finds that the contract was acted on up to within less than twenty years of the beginning of this action, but that the defendant Norfolk and Southern Railroad Company, which is now (297) operating the franchise of Atlantic and North Carolina Railroad Company (under a lease whereby it undertook to discharge all the contracts and duties of the lessor company), in 1910 refused to continue the flag station at this point, on the ground that it had since established a regular station within 2 miles of said flag station.

This action was brought for specific performance. The defendants pleaded that the right had been abandoned and was barred by the statute of limitations, and, furthermore, that it was against public policy, and its execution will seriously interfere with the performance of its duty as public carrier and will seriously inconvenience and retard the handling of freight and passenger trains over said railroad, and, further, that under the law they could not be compelled to establish a station at that point.

The defendants also contend that the plaintiffs' relief should be sought by a proceeding before the Corporation Commission.

If this were a proceeding to require the establishment of a station or a flag station at said point, the relief would be sought before the Corporation Commission, and in such case a new station cannot be required within less than 5 miles of one already existing. Revisal, 1097 (1). But here the plaintiffs are seeking to enforce a contract which was valid when made, and which was recognized and acted upon for a long number of years, and as to which the defendants are not shown to have made any denial till 1910.

It is very clear, therefore, that the right is not barred by any statute of limitations, and there is no evidence of abandonment. Neither was the contract against public policy.

The validity of such contract is upheld in Taylor v. R. R., (Fla.) 16 L.R.A. (N.S.), 307, and in R. R. v. Camp, (Ga.) 15 L.R.A. (N.S.), 594; s. c., 14 A. and E. Anno. Cas., 439, with full citation of authorities in the notes to those cases. In the note to the latter (p. 441) it is said: "It is a well settled rule that a contract by a railroad to locate its station at a certain point or place or within certain limits, which does not prohibit or restrict the location of any other station, (298) is not contrary to public policy, and is valid and enforcible." Then follow numerous citations to that effect.

It is held in these cases that upon such contract the company may be compelled "to maintain the station and schedule unless the public interests may require their discontinuance, and the other party to the contract has a right of action for damages for the breach of such contract." The other party took the contract with the knowledge that the increase in the business of the carrier might in course of time require the cessation of the station at such point; and, therefore, should the defendant prove in this case that the handling of its trains is seriously interfered with by the continuance of the rights of the plaintiffs, then the court will not decree specific performance; but the burden is upon the defendants to prove such state of facts. If the jury should so find, then, since the carrier retains the consideration, the jury should also assess the damages which the plaintiffs will sustain by their loss of the rights they have under the contract.

The court properly refused the ninth issue tendered by the defendants, "Is there any reasonable public necessity for, or benefit to be derived from, the said proposed station?" We may note that the word "proposed" was not pertinent, for the plaintiffs are not seeking to "establish" a station, but are demanding specific performance of the contract under which the flag station had been established.

The court, however, erred in refusing the eighth issue, "Will the said station impede, retard, or interfere with the defendants in the performance of their duties to the public in the carriage of freight and passengers?" and also in excluding evidence in support of such issue.

For these errors there must be a new trial. Should the jury find this last issue in the negative, then there should be a decree for specific performance; but it should contain a provision that the defendants shall not be estopped thereby to institute a proceeding at any future time, should conditions materially change, under Revisal, 1098, before the Corporation Commission, subject to appeal to the Superior Court and the ascertainment of damages accruing to the then owners of the (299) land, for permission to abandon the continuation of the flag station at that point, by reason of the increased business which shall then be found incompatible with the longer maintenance of the station without detriment to the duties due the public in handling its trains.

The authorities that a contract of this kind is enforcible by a decree for specific performance, unless its further exercise, by reason of changed circumstances, becomes detrimental to the public interests, and that in such case the plaintiff is entitled to recover damages, are so numerous and compelling that it is unnecessary to do more than to refer, as we have done, to the large number of cases cited in the notes to 15 L.R.A., 594; 16 L.R.A., 307, and 14 A. and E. Anno. Cas., 441.

Solomon v. Sewerage Co., 142 N.C. 439, is entirely different from this case. There the plaintiff had made an agreement with the sewerage company to pay it $2 per year rental, without specifying any duration for the contract. It was held that by reason of the increased cost of the service, the sewerage company, having raised its rates, was compelled to charge the plaintiff the same rental it charged others; besides, in that case, there was no duration specified for the contract. This case would have been like that if there had been an agreement by this defendant to charge certain rates and fares to the plaintiff's flag station, and subsequently the charges of the carrier had been raised as to other persons. In such case the plaintiff could not require specific performance of charging less rates to that station than to others, and there being no duration expressed in the contract, he could not exact damages for the breach. But here the defendant received a sum certain, once for all,i. e., the right of way across the Parrott land, and it still retains that consideration. In return therefor it must comply with its contract to give the facilities of a flag station at that point, unless and until it becomes detrimental to the public in handling the business of the road. And in such case it must return to the plaintiffs the consideration which it still holds and hourly enjoys. As it cannot, of course, surrender the right of way, it must in such case pay damages in lieu (300) thereof.

The easement runs with the land. If the right of way was surrendered or abandoned, the owners of the land through which it runs would hold it freed of such burden. As it is, they hold their land subject to the burden. In Norfleet v. Cromwell, 64 N.C. 1, the subject of easements is fully discussed, and it is held that such covenants "run with the land," even as against assignees in fee. To same effect, Herring v. Lumber Co.,163 N.C. 486; Gilmer v. R. R., 79 Ala. 569; Whalen v. R. R., 108 Ind. 1.

The defendant railroad acquired this easement in the Parrott land, and as sole compensation therefor contracted to give Parrott a flag station at that point. This is not a contract of uncertain duration, for the defendant received the right of way, and its assignee still holds and uses it, and it must render the agreed compensation, unless, as we have said, it becomes injurious to the operation of the road, and then it must pay its value.

This was not a personal contract with Parrott, for if it were, his assignee of the land might at any time have put an end to the easement and have required its abandonment by the railroad. On the other hand, if Parrott had died the following week, the railroad would have gotten the easement for nothing.

The railroad company, in exchange for the detriment to the land and of the benefit to themselves by reason of the right of way over the land, contracted to give the facilities of a flag station at that point, and the present owners of that part of the land through which the defendant's tract runs are entitled to enforce the agreed compensation of having a flag station at that point, except in the event, as above stated, of its termination being adjudged by reasons of public policy.

We do not find any error as to the issues which have been found, and the finding as to them is sustained. But the case will go back for the submission of the following issues: "Would the continuance of the flag station impede, retard, or interfere with the defendants in the performance of their duties to the public in the carriage of freight (301) and passengers?" And the further issue, "If so, what damages will the plaintiffs sustain the cessation of the flag station?"

The costs in this Court will be divided.

Partial new trial.