Griffith v. Southern Railway Co.

Brogden, J. The question for decision is whether or not the defendant has an easement in and to the land of the plaintiff by reason of the construction of a line of railroad over or abutting the land of the plaintiff by the A. T. & O. Railroad, the defendant’s predecessor in title. The defendant contends that it has such an easement. The plaintiff, upon the other hand, contends that defendant’s claim constitutes a cloud upon his title and brings this action to remove the cloud. If there be a cloud upon plaintiff’s title, it arises from one or all of three sources, to wit : (1) Entry by defendant’s predecessor in title upon or abutting the lands of plaintiff and the construction of a line of railroad thereon, the entry having been made and the road completed in 1859 or 1860. ' (2) 0. S., section 1733, subsection 1, as follows, to wit: Right of way of railroad: The width of land condemned for any railroad shall not be less than 80 feet nor more than 100, except where the road may run through a town, when it may be of less width; or where there may be deep cuts or high embankments, when it may be a greater width. (3) C. S., 440, subsection 1, as follows, to wit: No suit, action or proceeding shall be brought or maintained against the railroad company *87 owning or operating a railroad for damages or compensation for right of way or use and occupancy of any lands by the company for use of its railroad unless the action or proceeding is commenced within five years after the lands have been entered upon for the purpose of constructing the road, or within two years after it is in operation. So that the defendant asserts that entry and construction of the railroad coupled with the provision of C. S., 1733, supra, raises a presumption that defendant has an easement in, and over that portion of plaintiff’s land within fifty feet from the right angle of the track of the A. T. & O. Railroad Company. It is universally held in this jurisdiction that a railroad corporation acquires by condemnation an easement over that portion of its right of way not actually occupied by its roadbed, tracks, drains and side-ditches: Ward v. R. R., 109 N. C., 358; Blue v. R. R., 117 N. C., 644; R. R. v. Sturgeon, 120 N. C., 225; Neal v. R. R., 128 N. C., 143; Shields v. R. R. 129 N. C., 1; McCullock v. R. R., 146 N. C., 316; R. R. v. McLean, 158 N. C., 498; Hendrix v. R. R., 162 N. C., 9; R. R. v. Bunting, 168 N. C., 579; Tighe v. R. R., 176 N. C., 239. This easement or right of way under our law can be acquired by three methods, to wit: (1) Purchase or grant; (2) Condemnation; (3) Statutory presumption. Barker v. R. R., 137 N. C., 214. It is conceded that the defendant did not acquire an easement in plaintiff’s land by virtue of purchase, grant or condemnation, and that plaintiff has received no compensation for his property claimed in this action. Therefore, the doctrine of statutory presumption is the sole basis of defendant’s claim. There are many cases in this jurisdiction dealing with various aspects of controversies arising between citizens of the State and railroad companies in reference to the extent of the easements acquired in and to private property by virtue of provisions in charters, deeds and grants, or by reason of the application of C. S., 1733 and C. S., 440, supra. R. R. v. McCaskill, 94 N. C., 746; Land v. R. R., 107 N. C., 72; Liverman v. R. R., 109 N. C., 52; Utley v. R. R., 119 N. C., 720; Narron v. R. R., 122 N. C., 856; R. R. v. Olive, 142 N. C., 257; Parks v. R. R., 143 N. C., 289; Earnhardt v. R. R., 157 N. C., 358; Abernethy v. R. R., 159 N. C., 341; Caveness v. R. R., 172 N. C., 305; R. R. v. Nichols, 187 N. C., 153; Young v. R. R., 189 N. C., 238. The general principles established by the decisions are in substance: (1) That if a method of acquiring property for a right of way is prescribed in the railroad charter that method is exclusive and must be strictly construed and strictly followed. *88 (2) That if the charter prescribes no maximum or minimum width of the' right of way, then C. S., 1733, subsection 1, applies, and the law prestim.es the width • therein specified subject to the right of the owner to recover compensation by compliance with C. S., 440, subsections 1 and 2. This case stands upon a different footing. The A. T. & O. Eailroad Company, defendant’s predecessor in title, was created by act of the General Assembly of Tennessee on 26 February, 1852. It was, therefore, a foreign corporation. The General Assembly of North Carolina, Session 1854-1855, chapter 227, reenacted the Tennessee charter. The pertinent provisions of the North Carolina Act are as follows: Section 1. That the said Atlantic, Tennessee & Ohio Eailroad Company shall be a body corporate in this State, and with the powers and privileges in said act of incorporation granted shall have power to extend their railroad to some point on the North Carolina Western Eail-road, etc: Section 4. Be it further enacted, that the said company shall have the same power of surveying, locating and condemning property that is allowed in the State of Tennessee; also all the powers and privileges in constructing, equipping and running their said road that is by the said act granted to them in the State of Tennessee. Obviously, it was the plain intention of the General Assembly of North Carolina to grant to this foreign corporation only such powers as were delegated to it by the State of Tennessee. What powers, therefore, were delegated by the Tennessee statute? Substantially the following: (1) To construct as speedily as their means will permit a railroad with one or more tracks. (2) To purchase, have and hold in fee or for a term of years any lands, tenements or hereditaments which may be necessary for the said road, etc. (3) To take possession of land or material "where such land or material may he wanted after the same has been duly appraised in accordance with the method set out in the said section 31, subject, however-, to the payment of whatever damages might be awarded by the jury of inquisition or by the court if an appeal was taken, it being further provided that the “jury of inquisition should describe the property taken or the bounds of the land condemned and the duration of interest in the same.” It is apparent from an examination of the statutes involved that no maximum or minimum right of way was provided by the law of Tennes *89 see, and the A. T. & 0. Eailroad Company could only take “such land as may be wanted” by tbe method prescribed in section 31 of its charter. The Legislature of North Carolina expressly withheld from the A. T. & 0. Eailroad Company the power of eminent domain except as granted by the law of Tennessee, and the law of that state specified no maximum or minimum width of right of way. Eminent domain means the right of the state or of the person acting fdr the state to use, alienate or destroy property of a citizen for the ends of public utility or necessity. Wissler v. Power Co., 158 N. C., 465. This power is one of the highest attributes of sovereignty, and the extent of its exercise is limited to the express terms or necessary implication of the statute delegating the power. The rule is stated thus in R. R. v. Lumber Co., 132 N. C., 652; “In construing statutes which are claimed to authorize the exercise .of the power of eminent domain, a strict rather than a liberal construction is the rule. Such statutes assume to call into active operation a power, which however essential to the existence of the government, is in derogation of the ordinary rights of private ownership and of the control which the owner usually has of his property. The rule of strict construction of condemnation statutes is expressly applicable to delegations of power by the Legislature to private corporation.” R. R. v. R. R., 148 N. C., 63; Comrs. v. Bonner, 153 N. C., 66; Lloyd v. Venable, 168 N. C., 532. The defendant relies upon the case of Tighe v. R. R., 176 N. C., p. 244. In that case the Ealeigh & Gaston E. E. Company was operating under a charter prescribing the width of a right of way and authorizing the railroad company to take a right of way of that width. A deed had been executed and delivered to the company “for so much of a certain tract ... as may be taken in constructing the connection between the Ealeigh & Gaston and North Carolina Eailroad according to the survey made by Ed Myers.” The Court properly held that a deed or grant for an indefinite quantity of land for purposes of a right of way amounted to a conveyance of the full width authorized by the charter or the general law. The Legislature of North Carolina expressly granted to the A. T. & 0. E. E. Co. only such powers as were conferred by the law of Tennessee. This fact, in itself, under the general rules of statutory construction excludes the application of the general law of North Carolina. The principle is summarized in the well known maxim “expressio unius est exclusio alterius." Latta v. Williams, 87 N. C., 129. For this reason the principles announced in the Tighe case do not apply. *90 We are therefore of the opinion and so bold upon the record presented that there is no statute or statutory presumption creating an easement in plaintiff’s land in favor of the defendant and hence that the defendant has no valid claim to- any part of plaintiff’s land described in the complaint. Affirmed. Clariíson, J., took no part in the consideration or decision of this case.