Gudger v. Richmond & Danville Railroad

*484 Davis, J. after stating the facts: The building, for the removal of which damages are sought to be recovered, was erected by the defendant company on land included in its riglit-of-way. The defendant company was not a trespasser when it erected the building, nor was it a trespasser when it removed the building. “It was érected and used for a dinner-house for the traveling public, and as a boardinghouse for defendant’s employees,” and not for the benefit of the plaintiffs, nor for the enhancement of the value of their land, and we are unable to see how the fact “ that it had been used for a dinner-house” could work a forfeiture of any portion of defendant’s right of way. The defendant had a right to erect any building on its right-of-way necessary for its use and convenience in carrying on its business, and it had a right to remove it when its interest required it. Railroad v. Deal, 90 N. C., 110, and cases cited. To allow the plaintiffs damages for improvements put by the defendant on its own right-of-way, would be reversing the law of betterments. It may be that if the plaintiffs themselves had erected improvements on the defendant’s right-of-way, they would have been entitled to recover for betterments to the extent of the enhanced value of the land, if they had good reason to believe that they had a title to the premises (Railroad v. McCaskill, 98 N. C., 526), but in the present case the building was erected, not by them, or for their benefit, but by the defendant, on its own right-of-way, and it is difficult to conceive what interest the plaintiffs had in the building. But it is said “that the defendant not having shown that he had endeavored to purchase and had failed to do so, the statute did not apply.” The statute provides that “it shall be presumed that the land over which the road may be constructed, together with one hundred feet on each side thereof, has been granted by the owner, &c., provided he does not *485 file a petition for damages in two years, but this is not to affect infants, feme coverts,” &c. It does not appear how or when the numerous plaintiffs acquired title to the land on which the defendant had erected the building, or that they, or any of them, were under disabilities when the statute began to run, but assuming that they were “married women and minors,” this could only avail and protect them in the right to “file a petition for damages in two years” after disability. The defendant was in possession of the right-of-way, the plaintiffs “had brought no action or other proceeding to recover compensation for the taking of the land for right-of-way,” and, if the plaintiffs are not barred by reason of disabilities, they cannot maintain this action. They should have filed their petition for assessment of damages, as provided by law. Railroad v. McCaskill, 94 N. C., 746, and cases cited. Affirmed.