Purifoy v. . R. R. , 108 N.C. 101 ( 1891 )

Acts Special Session 1868, ch. 8, incorporated the A.-L. Railroad of South Carolina, and authorized it "to construct, equip and operate its road within the limits of this State from any point on the South Carolina line to such point on the C. S.C. Railroad or the N.C. Railroad at Charlotte as shall be found most practicable," and gave the company "all the rights, powers and privileges conferred on the C. S.C. Railroad by chapter 84, Acts 1846-47." Sections 25 and 27 of this last act give the corporation a right of way of (102) 100 feet on each side of the center of the roadbed, reserving to the owners the right to apply for an assessment of damages within two years from the completion of that part of the road, and if application is not made within that time the claim is barred.

By a succession of charters and conveyances, all of which were in evidence, and are set out in the record, the rights conferred by aforesaid charter of 1868 have been transferred to and are vested in the A. C. A.-L. Railroad Company, the principal defendant.

The plaintiff sues in ejectment to recover land occupied by the track of defendant A. C. A.-L. Railroad, and damages for use and occupation. Thelocus in quo lies east of the A. C. A.-L. Railroad, Trade street depot, in Charlotte, and between said depot and the junction of the A. C. A.-L. Railroad with the N.C. Railroad, which last point is 1,000 yards east of the city limits of Charlotte. The plaintiff's entire tract lies within the 100 feet from the center of the track of the defendant A. C. Railroad Company, and said company in its answer by way of counterclaim sought to recover possession of the whole of said lot. Two sets of issues were submitted by the court — one as to the plaintiff's right to recover the land covered by the roadbed and damages; the other, as to defendant's right to recover the whole tract, it being within the 100 feet. There was no conflict of evidence, and the court instructed the jury that they should return a verdict in favor of the defendant upon all the issues, and it was so entered. The plaintiff excepted to such direction and to the judgment, and appealed.

The plaintiff contends:

1. That the A. C. A.-L. Railroad Company, having elected to construct its road to a junction with the C. S.C. Railroad, could not afterwards change it to connect with the N.C. Railroad, and asked the court so to charge. But the evidence did not support (103) this view. There was no evidence that the A. C. A.-L. Railroad Company ever located its line or constructed its road to a junction with the C. S.C. Railroad. The evidence is that in 1871, when the A. C. A.-L. Railroad Company had completed its road to its Trade street depot at the north end of Charlotte, and further northeastward through the locus inquo, it found the A., T. O. Railroad running from that point round the southwest side of Charlotte to the C. S.C. Railroad, and, by consent of the A., T. O. Railroad, it used its track temporarily some eight months to transfer its freight and passengers, laying down a third rail on the A., T. O. Railroad, owing to the difference in gauge. In the meantime the A. C. A.-L. Railroad Company was prosecuting the construction of its line as located, and for which it had bought rights of way straightforward to their connection with the N.C. Railroad on the northeast side of Charlotte, to which point it was completed prior to August, 1872. The evidence shows no construction of the A. C. A.-L. Railroad to the C. S.C. Railroad, but a mere temporary connection over another railroad, and to make which the A. C. A.-L. Railroad Company had to run backwards and over a part of its own line. Its natural connection was from the Trade street depot straightforward to the N.C. Railroad, and the evidence is that it had located and at that very time was prosecuting the construction of its line to its junction with the N.C. Railroad, to which point it was completed eight months later. Besides, as the evidence is uncontradicted that when this temporary connection was had over the A., T. O. Railroad, the A. C. A.-L. Railroad Company had already completed its track through the locus in quo, we do not see how the plaintiff could be affected if its contention that there had since been a change of the terminus was sound, for, before going to either terminus, the track of the A. C. A.-L. Railroad had been built through this land and title to the 100 feet on either side acquired (104) by virtue of its charter, and such track has been continuously used ever since.

2. The plaintiff further contends that the charter authorized a connection with the N.C. Railroad at Charlotte, and that this is not done by the present connection, which is at a point 1,000 yards east of Charlotte. Possibly this point might have been raised by the owner of land sought to be condemned at the junction out of the city limits, but we cannot see how it can avail the plaintiff, through whose land the track ran, any more than any other landowner along its whole line, for, after passing through the plaintiff's land, the connection could still have been made either within or without the city limits. nor do we concur in plaintiff's view that that the authority to make the connection "at such point on the N.C. Railroad at Charlotte as shall be found most practicable" necessarily required the connection to be made in the city. The phraseology imports some discretion, and the evidence was that the location as selected was the best, according to the surveyor's report, and cost $80,000 less than any other would have done.

The A. C. A.-L. Railroad is 272 miles long, and authority to connect with the N.C. Railroad at Charlotte at the most practicable point is surely not transgressed when the most practicable point is half a mile from the city limits. "At" is defined by Webster to express, primarily, "nearness in place or time. At the house may be in or near the house." In Park's appeal, 64 Pa. (St.), 137, where a railroad 24 miles long was chartered from a point "at or near Parkersburg," it was held that a connection one and a half miles east of Parkersburg was not a transgression of the act. To the same purport is O'Neal v. King, 48 N.C. 517. But we need not cite further authorities.

3. The plaintiff further contends that the location was invalid because no map of the route was filed as required by the act of 1872 (The Code, sec. 1952). But, prior to the passage of that act, the (105) A. C. A.-L. Railroad had been constructed through the locus inquo, and the filing of a map was therefore not required.

It was in evidence, and not contradicted, that the A. C. A.-L. Railroad was constructed through the locus in quo in 1871. This gave it a title to 100 feet on each side from the center of the track, and no statute of limitations runs against the railroad by reason of the occupancy of the right of way. The Code, sec. 150; R. R. v. McCaskill, 94 N.C. 746. The plaintiff did not buy the land till 1874 — three years after the railroad was completed, and when he was put thereby on inquiry. He did not obtain a deed covering the part he sues for till 1881, and no demand was made till 1889 — eighteen years after the construction of the railroad. Upon the evidence, the defendant was entitled to recover possession of the land upon his counterclaim. Whether the plaintiff is entitled to allowance for betterments, upon the facts, under The Code, sec. 473 (R. R. v. McCaskill, 98 N.C. 526), is a matter which is not before us.

In the view we have taken of the case, the other exceptions noted by plaintiff become immaterial and need not be adverted to.

There being no conflict of evidence, there was nothing for the jury to pass upon. His Honor properly, it being a civil action, directed the verdict to be entered.

Per Curiam.

No error.

Cited: Love v. Gregg, 117 N.C. 469; Spruill v. Ins. Co., 120 N.C. 148;Nelson v. Ins. Co., ib., 305; Woodbury v. Evans, 122 N.C. 781; Rileyv. Carter, 165 N.C. 337.

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