
    W. L. PEACOCK v. ATLANTIC COAST LINE RAILROAD COMPANY and HENRY MOYE.
    (Filed 21 September, 1932.)
    Ejectment O b — Where party does not claim under exception in deed rule that claimant must show claim is within exception does not apply.
    In an action to recover lands the plaintiff introduced evidence of his title by deed containing an exception in favor of the defendant, but offered no evidence that the defendant’s use of the land was not within the exception, and the defendant introduced no evidence: Held,, a judgment of nonsuit was properly entered, the burden being upon the plaintiff to prove that the possession of the defendant was wrongful, and the rule that a party claiming under an exception in a deed has the burden of proving that his claim is within the exception does not apply, there being nothing to show that the defendant was claiming under the exception.
    Appeal by plaintiff from Harris, J., at January Term, 1932, of WayNE.
    Affirmed.
    From judgment dismissing tbis action as of nonsuit, tbe plaintiff appealed to tbe Supreme Court.
    
      J. Faison Thomson, J ames N. Smith and, Hugh Brown Campbell for plaintiff.
    
    
      W. B. B. Guión and Dickinson & Freeman for defendants.
    
   Per Curiam.

The evidence offered by the plaintiff at the trial of this action tends to show that the land described in the complaint was conveyed to plaintiff by a deed containing the following language:

“Excepting from the operation of this deed all rights of the Atlantic Coast Line Railroad in and to the southern portion of said property.”

Plaintiff offered no evidence tending to show tbe nature, character or extent of tbe rights of tbe defendant, Atlantic Coast Line Railroad Company in and to the land in controversy, or that the defendants were claiming under the exception in his deed.

The principle that the burden of proof is on one claiming under an exception in a deed or grant to show that his claim comes within the exception (Laffoon v. Kerner, 138 N. C., 281, 50 S. E., 654), is not applicable in the instant case, for the reason that it does not appear that the defendants are claiming under the exception. The burden was upon the plaintiff and not upon the defendants to offer evidence tending to show that the possession of the defendants was not within their rights. In the absence of such evidence, there was no error in the judgment dismissing the action as of nonsuit. The judgment is

Affirmed.  