Buie v. Atlantic Coast Line Railroad ( 1929 )

Pee Oubiam.

Tbe main contentions of tbe parties tbe Hón. J. Bayard Clark, referee, stated as follows:

“The controversy relates to a small triangular piece of. land adjoining defendant's tracks in Red Springs. Plaintiffs allege their ownership in fee of the land and wrongful entry and trespass thereon by defendant-, that defendant is estopped from claiming the right to occupy the land by reason of any charter rights because on 1 July, 1884, it took a deed from Hector McNeill for its roadbed proper adjacent to the land in controversy, thereby limiting its charter rights; that defendant has acquired no right to the land in controversy by purchase, condemnation, charter rights or otherwise, and its assertion of the right thereto is a cloud upon plaintiffs’ title; that defendant has wrongfully entered and is unlawfully in possession; and plaintiffs ask that they be declared -tbe owners in fee, that the cloud be removed, and that they recover damage. Defendant denies plaintiffs’ ownership, and alleges that many years ago its predecessor in title entered into possession of the land in controversy for railroad purposes pursuant to certain charter rights, and that they and it have ever since been in actual possession, using the land for railroad purposes; that it is entitled to an easement of sufficient width on each side of its main line to include the land in controversy; that the land in controversy is necessary in conducting and carrying on both its inter and intra-State business as a common carrier; that any claim which plaintiffs may ever have bad to the land in controversy or damages arising from its use is barred by the several statutes of limitations, which it pleads. Upon the bearing a controversy quickly developed as to whether conveyances offered by plaintiffs in proof of title do or do not cover the land in controversy, plaintiffs contending they do and defendants contending they do not.”

A carefully prepared map showing the contentions of the litigants, in regard to the disputed locus in quo, was filed in the action.

Tbe findings of fact and conclusions of law by the referee comprise fifteen pages of'the record. We have carefully read the findings of fact and conclusions of law.

It is well settled in this jurisdiction that error will not be presumed; it must be affirmatively established. Tbe appellant is required to show error, and be must make it appear plainly, as the presumption is against him.

From the findings of fact and conclusions of law by the referee, sustained by the court below, we cannot find any prejudicial or reversible error. Tbe judgment is

Affirmed.