McCullock v. . R. R. , 146 N.C. 316 ( 1907 )

PLAINTIFFS' APPEAL. The action of the plaintiffs is in the nature of an action of ejectment and also for wrongful entry and trespass. But they are entitled, irrespective of the prayer for relief, to any remedy to which the facts alleged and proven entitle them. Gillam v. Ins. Co., 121 N.C. 372, and numerous cases there cited.

Succinctly stated, those facts are: The North Carolina Railroad Company acquired, in 1850, by deed, an easement in the lot in question, which is now used by the Southern Railway Company for trackage and similar purposes. The Southern Railway Company, the defendant, as lessee of the North Carolina Railroad Company, is entitled to use said lot as fully as its lessor could have done (so far as this action is concerned), including any increased burden on the lot by reason of the increased business of said North Carolina Railroad Company's part in the business of the "Southern," whether the said business originates along the line of the North Carolina Railroad Company, or, originating elsewhere, is shipped to any point over the line of the North Carolina Railroad.

But at Greensboro, where the lot is located, the Southern Railway Company has four railroad lines other than that of the North Carolina Railroad Company, to wit, one coming in from Danville, another from Mount Airy, another from Wilkesboro and Winston, another (318) still from the direction of Sanford. So far as business coming over these four lines is concerned, which stops at Greensboro, or which at that point is carried further, not upon the North Carolina Railroad, but upon one of these other four lines, there is no warrant for the use of said lot for trackage or warehouse purposes for the convenience of the Southern Railway Company, as to this business in which the North Carolina Railroad has no part or interest. The North Carolina Railroad Company would have had no right to use the lot for such purely alien purposes if it had not been leased, and it could not confer upon its lessee greater rights than it held itself.

The plaintiffs are entitled in this action to have permanent damages assessed, in the nature of condemnation, for the additional burden placed upon the lot by its use for purposes other than those for which defendant uses the lot purely as lessee of the North Carolina Railroad Company.Hodges v. Telegraph Co., 133 N.C. 225, in which case this proposition is so clearly and fully reasoned out by Connor, J., with full citation of authorities, that further discussion here would be idle repetition.

The plaintiffs, in their brief, submit that this is all they wish — i. e., compensation for the alien and additional burden — and tersely say: "Take and pay." If this cause of action is defectively stated, when the case goes back the pleadings can be amended. Indeed, if the case had gone in favor of plaintiffs, they could have amended, even after judgment, to conform to the proof. Revisal, sec. 507.

The use of the roadbed, and up to the ditches on each side thereof at that point, by the Southern Railway or its lessor for more than twenty-one years was admitted; but, on the other hand, it was admitted by the defendants that the land outside of the ditches, but within 100 feet on each side of the center of the track, was first taken by it for trackage purposes in 1903. So far as that trackage is used by the railway for other purposes than to accommodate its business (319) as lessee of the North Carolina Railroad Company, it is an additional servitude. Whether the Southern Railway Company, not being a North Carolina corporation, can take the property for this additional servitude, under the right of eminent domain, except so far as it may do so as lessee of those of its other lines which possess that right conferred by a charter from this State, is a matter not now before us.

It is a fact agreed in the case that the plaintiffs are owners of the 45-acre tract of land described in the complaint, subject to the right of way through the same conveyed to the North Carolina Railroad Company by deed from Hiatt, under whom plaintiffs claim, which deed was executed in 1850. The said North Carolina Railroad Company held only an easement, a right to use so much of the right of way as was necessary for its purposes.R. R. v. Sturgeon, 120 N.C. 225. But when it becomes necessary for the North Carolina Railroad Company itself, or through its lessee, to occupy more of the right of way, it cannot be barred by the statute of limitations. R. R. v. Olive, 142 N.C. 257.

The taking possession of the right of way beyond the roadbed and ditches by the Southern Railway Company was only a few days before this action was begun, and, so far as it was taken to be used for trackage or other uses alien to its rights as lessee of the North Carolina Railroad Company, it was wrongful and is not protected by any statute of limitations.

The plaintiffs tendered, among others, the following issues, and excepted to their refusal:

"Was the land so taken by the Southern Railway Company necessary for the proper handling of the exclusive business of the North Carolina Railroad Company?

"Has the land in controversy, since it was taken by the Southern Railway Company, been used by said company to handle freights belonging to roads other than the North Carolina Railroad and which would not directly pass over said North Carolina or any part thereof in transmission from the point of shipment to (320) that of destination?

"What damages have the plaintiffs sustained by reason of the alleged trespass?"

These issues arose upon the pleadings and were essential to the decision of this controversy. Their refusal was error, necessitating a new trial.

Error.

Cited: S. c., 149 N.C. 306; Earnhardt v. R. R., 157 N.C. 366; LandCo. v. Traction Co., 162 N.C. 504; Gardiner v. May, 172 N.C. 202;Elliott v. Brady, ib., 830.

DEFENDANTS' APPEAL IN SAME CASE.