McIver v. . R. R. , 163 N.C. 544 ( 1913 )

CLARK, C. J., concurring in part. Summary proceedings in ejectment under the landlord and tenant act, Revisal, sec. 2001, etc.

At the conclusion of the evidence, the court held that the title to land was in controversy, and that the justice of the peace had no jurisdiction under the landlord and tenant act, and dismissed the proceeding. Plaintiff excepted and appealed. The summary remedy in ejectment provided by the statute for the ousting of tenants who hold over after the expiration of the term is restricted to cases where the relation between the parties is that of landlord and tenant. Hauser v. Morrison, 146 N.C. 248; McCombs v. Wallace, 66 N.C. 481;Hughes v. Mason, 84 N.C. 472.

As said in McDonald v. Ingram, 124 N.C. 274: "The only question the court can try under the statute in this proceeding is, Was the defendant the tenant of the plaintiff, and does she hold over after the expiration of the tenancy?"

There is no evidence whatever of a tenancy in this case.

The most that we can make out of the evidence, taking it in its most favorable view for the plaintiff, is that the small piece of land in controversy is covered by a part of the defendant's cotton platform in Sanford; that is was originally constructed by the C. F. and Y. V. Railway Company; that the plaintiff claimed the land, but that it was vacant and unoccupied by any one; that the plaintiff told Fry to go ahead and construct his platform over the property; that it was his property.

There is no evidence that the C. F. and Y. V. Railway Company (546) or this defendant, or any one duly authorized, ever rented the property from the plaintiff, or claimed under him. Not even nominal rent has ever been claimed by the plaintiff or paid by the defendant. The plaintiff, being asked when this indefinite and uncertain transaction took place, says: "I have used every effort to definitely state when this transaction took place, but I cannot do that. My best impression is that it was '96, '97, possibly '95. I do not think now it was as late as 1898."

There is evidence that at that time the property was claimed and possessed by the defendant under a deed from John Scott to Raleigh and Augusta Air Line Railroad, dated July, 1876.

The evidence is not sufficient to prove that the defendant company ever held possession of the property as a licensee of the plaintiff, much less as a tenant. There is no evidence that this defendant claims under the C. F. Y. V. Railway or succeeded it.

We think if the plaintiff claims title, he should pursue his action of ejectment against the defendants in the Superior Court.

Affirmed.