Southern Railway Co. v. Lissenbee

*322 WrsrBOKNE, J. This is the determinative question on this appeal : Under tbe charter of the Western North Carolina Railroad Company (Private Laws 1854-55, chapter 228, section 29) may right of way for railroad purposes be acquired by statutory presumption? Upon the evidence in this case, appellant says “No,” and, in that view, challenges the ruling of the court in refusing to grant his motions, aj>tly made, for judgment as in case of nonsuit. However, the ruling finds uniform support in the decisions of this Court. The charter of the Western North Carolina Railroad Company, under which as amended the railroad along the French Broad River through the town of Marshall in the State of North Carolina was located and constructed and has been since operated, provides three methods by which the right of way for the railroad may be acquired: (1) By purchase, section 27; (2) by condemnation, section 29; (3) by statutory presumption, under the further provisions of section 29, that “in the absence of any contract or contracts in relation to lands through which said road may pass, it shall be presumed that the land over which said road may be constructed, together with one hundred feet on each side thereof, has been granted by the owner or owners to the company, and the said company shall have good right and title thereto, and shall have, hold and enjoy the same so long as it shall be used for the purposes of said road, and no longer, unless the owner or owners shall apply for an assessment of the value of said lands as hereinbefore directed, within two years next after that part of said road has been located; and in case the owner or owners of such lands or those claiming under him, her or them shall not apply within two years from the time aforesaid, he, she, or they shall be forever barred from recovering the same or having an assessment or compensation therefor.” Provisions of similar character and like effect, to this quoted portion of section 29, appearing in the charters granted by the General Assembly to other railroad companies in the early era of railroad building in North Carolina have been considered in numerous decisions of this Court, among which are these: Vinson v. R. R., 74 N. C., 510; R. R. v. McCaskill, 94 N. C., 746; R. R. v. Sturgeon, 120 N. C., 225, 26 S. E., 797; Dargan v. R. R., 131 N. C., 623, 42 S. E., 979; Barker v. R. R., 137 N. C., 214, 49 S. E., 115; R. R. v. Olive, 142 N. C., 257, 55 S. E., 263; Earnhardt v. R. R., 157 N. C., 358, 72 S. E., 1062. The tenor of these decisions is expressed in Barker v. R. R., supra, in this manner: “This mode of acquisition is not an exercise of the right of eminent domain; it is based upon a purely statutory presumption. The concurring conditions are (1) entry and construction of the road, and (2) the failure of the owner to prosecute an action for two years. These concurring conditions existing, the statute fixes the term of two *323 years within which the owner may prosecute his action, and in default of which the road acquires the easement described, to wit: GOO feet on each side of the center of the road’ with the limitation fixed as to time and use.” Again, in Earnhardt v. R. R., supra, it is said: “The effect of inaction on the part of the owner for a period of two years after the completion of the road has been considered in several cases in this Court, under charters similar to the one before us, and without difference of opinion, ■it has been held that under such circumstances, a presumption of a grant from the owner arises for the land on which the road is located and for the right of way provided for in the charter.” This presumption, however, only arises in the absence of contract in relation to the lands through which the railroad may pass. Hence, the burden is upon the party claiming the benefit of such presumption to show every fact out of which it arises. Barher v. R. R., supra. “Our decisions are to the effect that a railroad right of way when once acquired may he occupied and used by the company to its full extent, whenever the proper management and business necessities of the road may so require, and the company is made the judge of such necessity.” R . R. v. Bunting, 168 N. C., 579, 84 S. E., 1009; R. R. v. McLean, 158 N. C., 498, 74 S. E., 461; Earnhardt v. R. R., supra; R. R. v. Olive, supra. Applying these principles to the case in hand, the evidence shown in the record is sufficient to take the case to the jury upon the issues submitted and to support the verdict rendered thereon. Moreover, the fact that the present location of the railroad, constructed in the year 1896 over the land in question, does not coincide with the location as originally made is, in the light of the evidence, immaterial. It is not contended that the present location is not by virtue and under authority of the provisions of the charter of the Western North Carolina Railroad Company. Hence, while a change in exact location of the roadbed might have subjected the company to liability for additional right of way, such additional right of way could have been acquired in any of the three methods provided in the charter. The evidence tends to show that the right of way was not acquired either by purchase or by condemnation, and that sufficient time has long since elapsed for acquiring it by statutory presumption. Upon the record presented, there is, in the judgment below, No error.