Bane v. Norfolk-Southern Railroad

130 S.E.2d 406, 259 N.C. 285, 1963 N.C. LEXIS 547

• Court: Supreme Court of North Carolina
• Decided: April 17, 1963
• Status: Published

Opinion

Per Curiam.

At the hearing on the demurrer plaintiff “stated in open court that plaintiff does not seek any recovery for any alleged breach of contract, but only for trespass and conspiracy.” Even so, the complaint does not allege that plaintiff agreed to an exchange of property within the time limited or ever offered to convey his property in exchange for other lands.

Stripped of conclusions the following facts are alleged: Defendant owned and was using a right of way for railroad purposes over plaintiff’s land. Its wooden trestle, under which plaintiff passed from one part of his property to another, was destroyed by fire. Over plaintiff’s objection defendant built a trestle of dirt and concrete which prevented plaintiff from passing under the railway. Plaintiff demanded damages and defendant negotiated with respect thereto, but has failed and refused to pay.

The allegations with respect to conspiracy are mere conclusions, and no facts are alleged which either tend to show a conspiracy or any damage to plaintiff from anything done which might have proceeded from a conspiracy. Moreover, it requires more than one individual or corporation to form a conspiracy. Burns v. Oil Corporation, 246 N.C. 266, 271, 98 S.E. 2d 339; McNeill v. Hall, 220 N.C. 73, 74, 16 S.E. 2d 456.

The facts alleged do not constitute a trespass by defendant on the lands of plaintiff. The railroad company had a right of way over plaintiff’s land for its “railway line,” had a right to enter upon its right of way and replace the burned trestle. If the construction of an earthen and concrete trestle placed a heavier burden on plaintiff’s land than permitted by the terms of defendant’s easement, plaintiff’s remedy was by a proceeding under G.S. 40-12.

Affirmed.