McLaurin v. Winston-Salem Southbound Railway Co. , 323 N.C. 609 ( 1988 )

374 S.E.2d 265 (1988) 323 N.C. 609

Thelma H. McLAURIN and Eleanor Ruth McRorie
v.
WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY, Seaboard System Railroad, Inc., and Landon A. Scarborough.

No. 605PA87.

Supreme Court of North Carolina.

December 8, 1988.

Henry T. Drake, Wadesboro, for plaintiffs-appellees.

Thomas, Harrington & Biedler by Larry E. Harrington, Monroe, for defendant-appellee Landon A. Scarborough.

Craige, Brawley, Liipfert & Ross by William W. Walker, Winston-Salem, for defendant-appellant Winston-Salem Southbound Ry. Co.

Patton, Boggs & Blow by C. Allen Foster, Eric C. Rowe and Julie A. Davis, Greensboro, for amicus curiae N.C.R. Co.

Brooks, Pierce, McLendon, Humphrey & Leonard by L.P. McLendon, Jr. and Nancy K. Plant, Greensboro, for amicus curiae Southern R. Co.

Maupin, Taylor, Ellis & Adams by Charles B. Neely, Jr. and Gilbert C. Laite, III, for Raleigh, amicus curiae CSX Transp., Inc.

WEBB, Justice.

The principal question presented by this appeal deals with the interpretation of N.C.G.S. § 1-44 which provides:

No railroad, plank road, turnpike or canal company may be barred of, or presumed to have conveyed, any real estate, right-of-way, easement, leasehold, or other interest in the soil which has been condemned, or otherwise obtained for its use, as a right-of-way, depot, station house or place of landing, by any statute of limitation or by occupation of the same by any person whatever.

The Court of Appeals held that if a railroad does not use, or plan in good faith to use, the land for the purpose set forth in the statute it forfeits the protection of the statute. The plaintiffs alleged that Winston-Salem Southbound Railway Company "has never used that said property for any right-of-way, depots, station house, or place of landing" and under this allegation, the Court of Appeals held it was error to dismiss the action.

We disagree with the interpretation of the Court of Appeals. The plain words of the statute do not require that a railroad actually use the land but that the railroad "obtained for its use" the land for a railroad purpose. The plaintiffs have not alleged that the land was not obtained for any of the uses specified in the statute and their complaint must fail.

N.C.G.S. § 1-44 was enacted in 1854. It has been interpreted in many cases. See Keziah v. R.R., 272 N.C. 299, 158 S.E.2d 539 (1968); Withers v. Manufacturing Co., 259 N.C. 139, 129 S.E.2d 886 (1963); Muse v. R.R., 149 N.C. 443, 63 S.E. 102 (1908); R.R. v. Olive, 142 N.C. 257, 55 S.E. 263 (1906); Purifoy v. R.R., 108 N.C. 101, 12 S.E. 741 (1891). These cases establish that when a railroad acquires land for railroad purposes the land is dedicated to a public use. N.C.G.S. § 1-44 protects the railroad from loss of the land by adverse possession. We have said it would be bad public policy to require railroads to police all the lands they own to guard against claims by adverse possession. In one case we said, "A permissive use of part of [the railroad's land] by another, when no present inconvenience results to the company, is not a surrender of rights of property, and, indeed, to expel an occupant under such circumstances, would be a needless and uncalled for injury." R.R. v. McCaskill, 94 N.C. 746, 754 (1886).

We do not agree with the Court of Appeals that N.C.G.S. § 1-44 should be read in pari materia with N.C.G.S. § 1-44.1 and that by so reading the statutes we must hold that N.C.G.S. § 1-44 does not prevent a railroad from losing by adverse possession land it owns in fee simple. N.C.G.S. § 1-44.1 provides that if a railroad removes its tracks from a right-of-way and does not replace them for seven years and does not make any railroad use of the right-of-way during that time it is presumed to have abandoned the right-of-way. We do not believe the General Assembly intended that if a railroad does not use for railroad purposes land it owns in fee simple that it has abandoned that land. We do not know of any landowner that has been so treated. We believe N.C.G.S. § 1-44.1 refers to the abandonment of easements. It has no application to land owned in fee simple.

The Court of Appeals distinguished Withers v. Manufacturing Co., 259 N.C. 139, 129 S.E.2d 886, by saying the railroad in that case had used the property for railroad purposes. This Court did say in holding that N.C.G.S. § 1-44 protected the railroad from losing its land by adverse possession that the railroad "had held and used the property in its public transportation business." Id. at 140, S.E.2d at 887. We did not say that if the land had not been used for a railroad purpose N.C.G.S. § 1-44 would not apply.

The plaintiffs alleged that the defendant Landon A. Scarborough held certain land through a deed from the defendant Seaboard System Railroad, Inc. The defendant Scarborough's title depends on the title of Seaboard. We have held that a railroad is protected from a claim of adverse possession by N.C.G.S. § 1-44. Seaboard had a good title to the land at the time it was conveyed to Scarborough and under the allegations of the complaint the plaintiffs had not obtained a title by adverse possession against Scarborough.

The plaintiffs, relying on Saddle Club v. Gibson, 9 N.C.App. 565, 176 S.E.2d 846 (1970), argue that the defendant Scarborough does not have standing to take advantage of N.C.G.S. § 1-44. Saddle Club has no application to this case. This Court in that case held that a person who has title to land which is subject to a highway easement may recover for a trespass by a third party on that part of the easement which is not being used for a highway. Scarborough may take advantage of N.C.G.S. § 1-44 to show Seaboard had not lost the land by adverse possession at the time it was conveyed to him.

The plaintiffs contend that N.C.G.S. § 62-220 lists the powers of railroads and nowhere in those powers is the right to sell real property. They contend a railroad does not have the power to sell for a nonrailroad purpose property it acquired for a railroad purpose. The plaintiffs have not cited any authority for this proposition. More than 140 years ago it was held in an opinion written by Chief Justice Ruffin, State v. Rives, 27 N.C. (5 Ired.) 297 (1844), that land used by a railroad for a railroad purpose may be sold by the railroad. Assuming that the plaintiff has standing to raise this issue, we hold we are bound by Rives to hold a railroad has the power to sell property which has been acquired for railroad purposes.

The defendants contend in this appeal that the plaintiffs did not properly give notice of an appeal from the Superior Court of Anson County. The plaintiffs contend that it was error to transfer the case from the District Court to the Superior Court of Anson County. We hold, for the reasons stated in the opinion of the Court of Appeals, that the plaintiffs gave a proper notice of appeal from superior court and it was not error to transfer the case from the district court to superior court.

The opinion of the Court of Appeals is affirmed as to its affirmance of the order of transfer and order denying the motion to dismiss the appeal. The opinion of the Court of Appeals is reversed as to its reversal of the order of dismissal, and the cause is remanded to the Court of Appeals for further remand to the Superior Court, Anson County for reinstatement of the order of dismissal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.