Tighe v. Seaboard Air Line Railroad

*243 Clark, 0. J. Tbe defendant relies upon a deed from Jeptbab Horton dated 12 August, 1853, conveying “so mucb of an acre tract of bis land (describing tbe land) as may be taken in constructing tbe connection between tbe Kaleigb and Gaston and North Carolina Eailroad Company, according to tbe survey made by Ed. Myers, civil engineer.” Tbe plaintiffs claim as beirs of John Tigbe, to wbom Jeptbab Horton conveyed tbe balance of tbe land on 12 October, 1869, or about sixteen years later tban tbe defendant’s deed. Tbe defendant laid a single track to make tbis connection, and bas introduced no evidence as to bow mucb of tbis land was taken by tbe Ed. Myers survey, and relies upon tbe presumption tbat in laying tbis single track either tbe 80 feet authorized right of way under tbe Ealeigb and Gaston Eailroad Company charter or tbe 200 feet right of way authorized by tbe North Carolina Eailroad Company charter would prevail.. If tbe former, it would include tbe locus in quo; and if tbe latter, it would take tbree-fourtbs of tbe tract conveyed to tbe plaintiffs’ ancestor, John Tigbe. Tbe plaintiff introduced evidence tending to show tbat only one-quarter of an acre was used and occupied by tbe railroad company under tbe Ed. Myers survey, and tbat continuously since tbe deed in 1869 to John Tigbe, under which they claim they have occupied tbe locus in quo; tbat for a long time it was their borne; tbat on tbe northern part of tbe land John Tigbe bad planted a hedge, and between tbis hedge and tbe railroad right of way they bad a 10-foot drive on tbis land, leading into North Dawson Street; tbat two or three times, more tban two years prior to tbe commencement of tbis action, tbe defendant bad thrown cinders upon tbis pathway, but bad “desisted when forbidden to do so; tbat in 1916 (less tban two years prior to tbe beginning of tbe action) tbe defendant contructed a double track, covered up tbe entire driveway and hedge, closing tbe plaintiffs’ outlet to tbe street and making their property undesirable. Tbe defendant introduced no evidence on tbe above matters, except in confirmation of tbe building of tbe double track in 1916 and of tbe existence of tbe hedgerow, which is now covered up by tbe double-track embankment. While tbe presumption is that Ed. Myers, tbe civil engineer, laid out tbe right of way to tbe full 80 or 100 feet wide, as authorized by tbe charter, if necessary to make tbe physical connection, tbis is subject to tbe evidence tending to show tbat only one-quarter of an acre was used and occupied by tbe railroad company under tbe Ed. Myers survey, and tbe jury, under tbe instructions of tbe court, free from error, so found. In Hendrix v. R. R., 162 N. C., 9, tbe conveyance to tbe railroad was of “so much of our land as may be occupied by said railroad, its banks, ditches, and works.” Tbis deed was executed in 1862, and tbe grantee, prior to 1865, constructed a line of railroad through tbe property, taking *244 a strip of land 50 to 55 feet in width. The railroad company in 1909 widened its right of way and took additional land for that purpose. It was contended by the plaintiff that, under the language of the deed, the defendant was restricted to the right of way originally occupied. But this Court held that, under such deed, the railroad company could take the necessary land to the extent of the right of way prescribed by the charter. So, also, in R. R. v. Bunting, 168 N. C., 579, the Court held that a railroad company may occupy its right of way to its full extent whenever the proper management and business necessities of the road, in its own judgment, may require it, though the owner of the land can use and occupy a part of the right of way not used by the railroad in a manner not inconsistent with its full enjoyment of the easement. Indeed, our decisions are uniform that when a railroad company has acquired the right of way by condemnation or by purchase of the right of way, the deed not limiting the conveyance to less than the statutory width (as in Hendrix v. R. R., supra), or has entered upon the land and acquired it without condemnation and without conveyance, by reason of the acquiescence of the owner for the statutory time — in all these cases, while the railroad can use only the part actually occupied (the adjacent proprietor using the rest of the right of way sub 'modo, that is, subject to the easement of the railroad), still in all these cases, whenever the necessities of the company require it, it can extend its user of the right of way to the extent of the statutory right for additional tracks or other railroad purposes. This matter has been fully discussed and uniformly decided in many cases. R. R. v. Olive, 142 N. C., 264, and the large number of cases there cited, among others, especially R. R. v. Sturgeon, 120 N. C., 225; R. R. v. McCaskill, 94 N. C., 746; Barker v. R. R., 137 N. C., 214, and the citations to R. R. v. Olive in the Anno. Ed. Also, in the cases cited by Hoke, J., in R. R. v. Bunting, 168 N. C., 580. The present case, however, is distinguished from the above, for here the defendant railroad did not acquire the right of way either by condemnation or by occupation, without objection, for the statutory time, nor by a deed for the “right of way,” all of which would be presumed to-give an easement to the full width of the right of way allowed by the charter or the general law; but the defendant railroad was content to accept a deed specifying as the boundary “according to the survey made by Ed. Myers, civil engineer,” and the jury find that this did not embrace the locus in quo. The defendant therefore is restricted to the boundary described in its deed. It can now-occupy land beyond that limitation by the exercise of the statutory authority of condemnation with compensation, but not otherwise. No error. '