Barker v. Railroad , 137 N.C. 214 ( 1904 )

Connor, J.,

after stating tire facts. The plaintiff’s first exception to testimony becomes immaterial by reason of the answer to the first issue. His second exception is pointed to the introduction of the South Carolina statute, for that it is irrelevant and cannot affect the rights of a citizen of this State.. The exception is based upon a misconception of the purpose for which the statute was introduced. For the purpose of showing the history, original creation and consolidation of the two corporations, we can see no valid objection to its competency. It certainly could not confer upon the corporation chartered in South Carolina any rights, privileges or powers in respect to the property of the plaintiff in this State, nor does it profess to' do so. It simply charters a railroad company with power to construct a road to the North Carolina, line. The exception was not urged in this Court and cannot be sustained.

The third exception is directed to the Act of 1874-’75, because: (1) It does not appear that in fact there was any consolidation of tlie two companies. (2) It does not confer any power on the corporation to condemn land. These objections go rather to the effect of the act than to its competency. The recital that a consolidation had been made in pursuance of the laws of the two States must be taken as prima facie true for the purposes of this case: In regard to the second ground the claim of the defendant doe's not depend upon the right of eminent domain, but upon a statutory presumption. The exception cannot be sustained. The exception to the introduction of the deed in trust must- also be overruled.

We are thus brought to the consideration of the real question presented by the appeal. Whatever corporate rights vested in the Greenville and French Broad Railroad Company passed to and vested in the Asheville and Spartanburg Railroad Company by the consolidation. 10 Cyc., 303. The power to- enter upon land for the purpose of constructing the road was clearly conferred upon the Greenville and French Broad Railroad Company. It was further provided by section 11 that, in the absence of a written contract, it shall be presumed that the land upon which the said road may be constructed, together with one hundred feet on each side of the center of the road has been granted to said company by the owners thereof. * * * The validity of the consolidation is not material to this controversy; it was recognized by the General Assembly in the manner" herein set forth. The trust deed executed by the Asheville and Spartanburg Railroad Company vested in the trustees, for the purposes therein set out, the title to the property of the consolidated railroad companies. This title passed to and vested in the Asheville and Spartanburg Railroad Company by virtue of the proceedings, decree, sale, etc., of the Circuit Court of the United States. By virtue of section 697 of The Code, the purchasers became the Asheville and Spartanburg Railroad Company. We do not think that the decision of this Court in James v. Railroad, 121 N. C., 523, 46 L. R. A., 306, conflicts with this view. The question presented in that ease is> easily distinguished from tlie one under consideration. At the time of the purchase, April 4, 1881, the Spartanburg and Ashe-ville had entered upon and constructed its track over the land in controversy. The plaintiff's witness puts it at about 1879 or 1880. This Court in Railroad v. McCaskill, 94 N. C., 746, discusses and construes language similar to that contained in section 11 of the charter of the Greenville and French Broad. It was held that “the presumption of the conveyance arises from, the company’s act in taking possession and building the road, when, in the absence of a contract, the owner fails to take steps, for two years after it has belen completed, for recovering compensation. It springs out of tírese concurring facts, and is independent of inferences which a jury may draw from them. If the grant issued it would be more effective in passing the owner’s title and estate. Thus vesting, it remains in the company as long as the road is operated, of the specified width, unaffected by the ordinary rules in reference to repelling presumptions.” The decision in this case has been modified in Railroad v. Sturgeon, 120 N. C., 225. It is there held that under similar conditions, construing the same language, the road acquires not a title to the land but an easement which entitles it to possession of the whole right of way only when it shall appear that it is necessary for its purposes in the conduct of its business. We do not understand that in any of the decisions of this Court the doctrine of McGaslcilTs case has been otherwise modified. In Dargan v. Railroad, 131 N. C., 623, Sturgeon's case was approved. A railroad under a charter such as the one before us may acquire its right of way in three different methods: 1. By purchase, which includes dedication, in which case it will be confined to the width set forth in the deed and act of dedication. 2. By condemnation, in which case it will be confined to the width set forth in the map or profile which is required to be filed under the statute. If, in either case, it contents itself with accepting and paying for less than one hundred feet, it must be content to be restricted to such limits as are fixed. The first method of course arises out of a contract; the second is in the exercise of the right of eminent domain, and all statutory provisions for taking property in this way must be strictly construed and no such power can be granted by implication. Tbis is elementary learning. 3. In the absence of any written contract, it shall be presumed that the land upon which the road may be constructed, together with one hundred feet on each side of the center of the road, has been granted to the company by the owners thereof, and it acquired a good right and title to the same, so long as the land may be used only for the purposes of the road, and no longer, unless the owner shall prosecute a suit within two years to recover either the land or damages by way of condemnation. This mode of acquisition is not an exercise of the right of eminent domain; it is based upon a purely statutory presumption. The concurring conditions are (1) entry and construction of the road, and (2) the failure of the owner to prosecute an action for two years. These concurring conditions existing, the statute fixes the term of two years within which the owner may prosecute his action, and in default of which the road acquires the easement described, to-wit, “one hundred feet on each side of the center of the road” with the limitation fixed as to time and use. It would seem that there could be no doubt in regard to the meaning of the Legislature. With the policy which prompted the Legislature in the early history of railroad building in this State to put this provision in the charters of the contemplated roads we have nothing 'to do. Finding them to be constitutional, it is our duty to interpret and enforce them in accordance with well-settled principles of legal construction.

The boundary is fixed at “one hundred feet on each side of the center of the road” and we have no right to restrict it. The duration of the easement is “so long as the same may be used only for the purposes of the road, and no longer.” This Court in Sturgeon’s case has defined the extent of the easement, both in respect to the width and the use to which it must be confined. It is said* however, that the presumption only arises in the absence of any written contract, and the burden is upon tbe defendant to show this condition. It must be conceded that when one relies upon a presumption to establish a right he must show every fact out of which the presumption arises.

While we have no disposition to violate- the elementary principle of law that a party who claims to. have acquired the title to property or any easement therein or right to put any burden thereon by presumption, must establish his claim by showing the facts upon which it is based, we must not refuse to give to the clearly expressed intent of the Legislature, especially when it assumes the form of a contract, a fair interpretation. Whether in the first introduction of railroad building in this State the Legislature conferred power, in respect to the acquisition of rights of way and other special privileges, too freely, it is not within our province to say. Whether the growth in wealth and development of the natural resources of the- State, incident to the improvement of facilities for transportation, has compensated for such grants, it is equally beyond our province to discuss. This Court best serves its purpose and discharges its legitimate function in our governmental system when it confines itself to its constitutional orbit “to review any decisions of the courts below upon any matter of law or legal inference.” Const. Art. IV, sec. 8.

When the defendant showed its actual occupancy of the land for two years in the manner and for the purposes to which it was appropriated, in the absence of any deed or written contract or proceeding for condemnation, the statutory presumption arose with the effect upon the rights of the parties declared by the statute. If one is sued by the State for land and shows a possession, either by himself or others, for thirty years under the law as it existed prior to 1868, then arose a presumption of a grant as against the State, and a similar possession of twenty-one years presumed a deed as against an individual. The charter simply defines the kind, character and purpose of the possession and raises the presumption of a grant of an easement of fixed limitations at the end of two years. Charters containing these provisions have been granted in this State since 1833. No serious question has ever been raised as to their validity. Railroad v. Davis, 19 N. C., 452. Railroad v. McCaskill, supra; Railroad v. Sturgeon, supra. The plaintiff must recover on the strength of his own title. The easement having-been acquired by the statutory presumption and the defendant being in the actual enjoyment of it, the plaintiff cannot oust it.

His Honor stated that there was no contradiction in the testimony and as a question of law directed the verdict In his ruling we find

No Error.