
    M. W. TIGHE et al. v. SEABOARD AIR LINE RAILROAD COMPANY.
    (Filed 16 October, 1918.)
    Railroads— Condemnation— Easements— Rights of Way— Deeds and Conveyances — Charter Width.
    A conveyance of so much of the owner’s land as may be taken in making a connection with another railroad, within the city’s limits, according to a certain survey, is not ipso facto a conveyance of the full width thereof authorized by its charter; and where a railroad company acquired by deed a less width of land as a right of way than that authorized by its charter, it can take more of the land only by condemnation and compensation, in the absence of further contract.
    Hoke, J., concurring in result.
    Appeal by defendant from Stacy, J., at January Term, 1918, of Wake.
    
      This action is to recover damages for -alleged encroachment upon the property of plaintiffs in the construction of a track between Johnston Street and a point near Boylan Avenue bridge in Raleigh.
    Upon the complaint, the plaintiffs moved for a restraining order against the construction of the track on their property. The motion was denied, but defendant was required to give bond in the sum of $2,500 to pay all damages and costs that might be awarded plaintiffs in this action. In the judgment overruling the motion for a restraining order the plaintiffs and the defendant waived condemnation proceedings and agreed that the issue as to title to the property in-dispute should be tried, and if plaintiffs established title the issue of damages should be tried.
    It appeared that one of plaintiffs’ elements of damages was the alleged closing of the entrance from Dawson Street to the property of the plaintiffs, and defendant claimed that if the title to the property should be found in the plaintiffs, then the defendant by the exercise of its rights under Revisal, 2569, 2570, 2571, could condemn another entrance to plaintiffs’ property and thereby greatly reduce the damages to which they would be liable. In accordance with the agreement, the question only of encroachment was considered in the trial from which this appeal is taken.
    The contentions of the defendant supported by evidence are as follows:
    1. Chapter 68, Laws 1899, authorized the Raleigh and Gaston Railroad Company to consolidate with other railroad companies and to lease or otherwise acquire their property.
    2. Chapter 34, Laws 1899, authorized the defendant company to unite with the Richmond, Petersburg and Carolina Railroad Company.
    3. Chapter 168, Private Laws 1901, chapter 1901, authorized the defendant, successor of the Richmond, Petersburg and Carolina Railroad Company, to possess and exercise the powers conferred upon the latter road, and authorized leases, purchases, sales or consolidations between it and other railroad and transportation companies.
    4. By articles of agreement and merger and consolidation entered into 11 October, 1915, and filed in the office of the Secretary of State on 15 November, 1915, the Seaboard Air Line Railroad and Carolina, Atlantic and Western Railroad Company .formed the Seaboard Air Line Railroad Company, and- the latter became possessed of all the rights, privileges and easements formerly possessed by the Seaboard Air Line Railroad.
    5. Under' the statutes of this State and by the articles of consolidation and merger, the defendant claims that as successor of the Raleigh and Gaston Railroad Company it is entitled to all the rights, privileges and easements of said company, including the right of way herein set out.
    
      6. Tbe deed from Jeptbab Horton to tbe Ealeigb and Gaston Eail-road Company 12 August, 1853, conveyed “so mucb of a certain tract of land lying and being in tbe county of 'Wake and bounded as follows, to wit: Beginning at S. E. corner of Mrs. Matilda Wedding’s lot and running N. 16 poles to a stake, tben W. 18 poles to a stakej tben S. 16 poles to a stake, tben E. to tbe beginning, containing by estimation 1 acre, 3 roods and 8 poles, as may be taken in constructing tbe connection between tbe Ealeigb and Gaston and North Carolina Eailroad according to survey made by Ed. Myers, civil engineer, to bave and to bold to tbe said party of tbe second part (Ealeigb and Gaston Eailroad Company) and its assigns forever, witb all and every tbe appurtenances thereunto belonging.”
    7. Tbe charter of tbe Ealeigb and Gaston Eailroad Company fixed tbe right of way of said company at forty feet on each side of tbe center of tbe track, and it was authorized thereby to take a right of way of that width.
    8. Tbe deed from Jeptbab Horton to tbe Ealeigb and Gaston Eail-road Company was executed and recorded prior to tbe deed from Jep-tbab Horton to John Tigbe, under which tbe plaintiffs claim.
    9. Tbe land occupied by defendant’s track in November, 1916, is a part of defendant’s right of way of which it acquired by consolidation and merger witb tbe Ealeigb and Gaston Eailroad Company.
    10. Chapters 140 and 527, Laws 1852, incorporating tbe Ealeigb and Gaston Eailroad Company, ratified 2 December, 1852, provides: “Be it further enacted, That to enable tbe said Ealeigb and Gaston Eailroad Company to effect a junction and form an actual connection witb tbe North Carolina Eailroad Company whenever tbe superstructures shall bave been laid on that part of tbe road of tbe North Carolina Eailroad Company lying between Ealeigb and Goldsboro, as provided in tbe fifty-second section of tbe act incorporating tbe North Carolina Eail-road Company, tbe president and directors are hereby invested witb full power and authority to make all necessary contracts for tbe construction of said road and to resort to tbe same means for purchasing or condemning such lands as may be required therefor as are provided in tbe act incorporating tbe North Carolina Eailroad Company.”
    11. Chapter 82, Laws 1848-9, incorporating tbe North Carolina Eail-road Company, which is referred to in tbe above mentioned charter of tbe Ealeigb and Gaston Eailroad Company, has this provision, among others: “Tbe right of said company prescribed in section 27 of this act shall extend to condemning one hundred feet on tbe main track of tbe road, measuring from tbe center of tbe same, unless in tbe case of deep cuts and fillings, when said company shall bave power to condemn as much, in addition thereto as may be necessary for the purpose of constructing said road.”
    12. The defendant contends that the Raleigh and Gaston Railroad Company had power under section 18-, chapter 140, Laws 1852, construed in connection with section 28, chapter 82, Laws 1848-9, to take a right of way of the width of one hundred feet on each side of the track.
    13. In the general statute on Railroads, Revisal, sec. 2597, it is provided that the width of land condemned for any railroad shall be not less than eighty feet or more than one hundred feet, and defendant contends that under its terms the Raleigh and Gaston Railroad Company was required to condemn a right of way not less than eighty feet in width and not more than one hundred feet in width across the land of Jepthah Horton.
    14. The defendant’s track, which was constructed in November, 1916, and which occupies the land claimed by the plaintiffs in their complaint, the defendant contends, was constructed entirely within the limits of the right of way acquired by the defendant in its merger and consolidation with the Raleigh and Gaston Railroad Company.
    15. The defendant further contends that said track was constructed on said right of way for a necessary railroad purpose, to properly perform its public functions, to supply better facilities therefor, and in order to properly conduct its business as'a common carrier of passengers and freight, and in order to supply better facilities for connection with the track of the North Carolina Railroad Company.
    16. The defendant also sets up as a defense that if it has encroached upon plaintiffs’ land, as alleged in the complaint, such encroachment was made more than five years before the commencement of this action and for the purpose of constructing a railroad thereon, which had been in operation more than two years since such alleged encroachment, and the defendant pleaded in bar of plaintiffs’ right to recover damages for said encroachment Revisal, 394, as follows: “No suit, action, or proceeding shall be brought or maintained against any railroad company owning or operating a railroad for damages or compensation for right of way or use and occupancy of any lands by said company for use of its railroads, unless such suit, action, or proceeding shall be commenced within five years after said lands shall have been entered upon for the purpose of constructing said road, or within two years after said road shall be in operation.”
    The jury having responded to the issue, “Did the defendant encroach upon plaintiffs’ land?” in the affirmative, the defendant appealed from the judgment entered thereon.
    
      Armistead Jones & Son and Robert G. Strong for plaintiffs.
    
    
      Murray Allen for defendant.
    
   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 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. '  