Shith, C. j.
(after stating the facts). It is not material to inquire into the source from which the defendant derives his title, beyond his mere occupancy, since the plaintiff must establish its right to the possession of the premises, in order to a judgment of ejection. In whomsoever the estate was vested, there being no suggestion that they were under disabilities, it was, under the statute, as soon as the road was constructed and
toties quoties
as it progressed towards conclusion, transferred to the corporation, of the required width of 100 feet on either side, to be paid for as directed, when no written contract has been en-tei’ed into for the purchase. In such case, the inaction of the owner in enforcing his demand for compensation for land taken and appropriated after the finishing of the construction of the road thereon, for the space of two years thereafter, raises, under the statute, a presumption of a conveyance and of satisfaction, and hence becomes a bar to an assertion by legal process, of such claim.
These conditions unite in this case, and not only does the title vest in the corporation, but the remedy given the owner, • under no disability, has been lost by lapse of time.
The right of a railroad corporation to enter upon and take possession of land, needed in the building of the road, before payment to the owner, when authorized by the power which exercises the right of eminent domain, is sanctioned by the ruling in
Raleigh & Gaston R. R. Co.
v.
Davis,
2 Dev. & Bat., 451, as necessary to the efficient prosecution of these great works of internal improvement, and, whatever may be the adjudications elsewhere, has been accepted law in this State. And so the remedy of attaining compensation, which the statute provides, must alone be pursued for that purpose.
McIntire
v.
Western
N. C. R. R. Co.,
67 N. C., 278;
Johnson
v.
Rankin,
70 N. C., 550;
Phifer
v.
Railroad,
72 N. C., 433;
State
v.
McIver,
88 N. C., 686; Pierce on Railroads, 163.
“If the actual payment of the compensation were required,” says the author last quoted, “ to precede an entry for construction, the entry would be delayed until the amount, when not agreed upon, had been finally determined by legal proceedings, and such delay would often result in serious detriment to public interests.”
And so Mr. Justice Rodman indicates the rule, in
McIntire
v.
W. N. C. Rairroad Co., supra,
thus :
“
If the officers of the coporation cannot enter on lauds and make surveys without a trespass, they would never locate the road. And if the road were located, and its construction delayed until the damages to all the land owners on the route were asceatained under the act, the delay would be indefinite, and of no benefit to any one. * * The act intended to allow the company to enter and construct its road at ouce, leaving the question of damages, if the parties could not
agree
on them, to be settled afterwards. The company was not obliged to initiate proceedings. It is not obliged to know
that the owner claims damages,
until he claims them in the mode provided.”
The provision in the charter granted to the predecessor, in February, 1881, is a transcript of a similar section, (29), contained in the act of 1848-49, ch. 82, incorporating the North Carolina Railroad Company, and this latter has been recognized and enforced as valid, by express adjudication in
Vinson
v. N.
C. R. R. Co.,
74 N. C., 510. In this case, proceedings were instituted by the company against the owner in 1865, a year after the road had been finished. It depended in the Superior Court of Johnston, until Spring Term, 1875, when the counsel for the company entered a dismissal, without prejudice, and without the knowledge of the defendant's counsel. A petition was filed by the plaintiff Vinson, to recover damages on account of the construction of the road over his land. The Court held, and so declared, in reference to the recited section of the incor-
purating act:
“
It is a postive statute of limitations, and it clearly bars the plaintiff’s action, unless it be saved by the special circumstances relied upon,” &e., and, adjudging that they could be allowed no such effect, the petition was dismissed at petitioner’s cost. We refer to the case, only as showing a judicial determination of the efficacy and operation of the clause under which the plaintiff claims its proprietary right to the land in dispute, without reference to some of its other features.
We proceed now to consider the grounds as contained in the series of instructions asked, on which the recovery is resisted by the defendant, and these are:
I. The presumption is not raised under the Act, when there is an adverse holding by another, and if it is, it is rebuttable and has been rebutted.
The presumption of the conveyance arises from the company’s act in taking possession and building the railway, when in the absence of a contract, the owner fails to take steps, for two years after it has been completed, for recovering compensation. It springs out of these concurring facts, and is independent of inferences which a jury may draw from them. If the grant issued, it would not be more effective in passing the owenr’s title and estate. Thus vesting, it remains in the company as long as the road is operated, of the specified breadth, unaffected by the ordinary rules in reference to repelling presumptions, by virtue of §23, chapter 65, of the Revised Code, brought forward in The Code, §150. This declares, that “no railroad, plank-road, turnpike or canal company, shall be
barred of,«r presumed to have conveyed,
any real, estate, right of way, easement, lease-hold, or other interest in the soil, which may have been condemned
or otherwise obtained for its use, as a right of way, depot station-house, or place of landing, by any statute of limitation, or by occupation of the same by any person whatever.’’
This is the substance of the first, fourth and sixth instruction demanded, to which the statute furnishes a sufficient answer.
II. The fifth instruction asserts an estoppel, upon the company, growing out of the knowledge by its officers, of the erection of theffiouse by .the defendant, while it was being built, and assent implied by that silence and aequiesence. This objection is met by the cases of
Holmes
v.
Crowell,
73 N. C., 613;
Exum
v.
Cogdell,
74 N. C., 139;
Mason
v.
Williams,
66 N. C., 564;
Melvin
v.
Ballard,
82 N. C., 33; Big. Est., 480. Mere silence while a trespasser is improving real estate as if it were his own, while it may sustain a claim for the value of such improvements made in good faith, cannot be allowed to transfer the property itself to the usurping occupant.
... III. What has already been said, disposes of the matter of the instructions numbered 8 and 9.
. IV.
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Shith, C. j.
(after stating the facts). It is not material to inquire into the source from which the defendant derives his title, beyond his mere occupancy, since the plaintiff must establish its right to the possession of the premises, in order to a judgment of ejection. In whomsoever the estate was vested, there being no suggestion that they were under disabilities, it was, under the statute, as soon as the road was constructed and
toties quoties
as it progressed towards conclusion, transferred to the corporation, of the required width of 100 feet on either side, to be paid for as directed, when no written contract has been en-tei’ed into for the purchase. In such case, the inaction of the owner in enforcing his demand for compensation for land taken and appropriated after the finishing of the construction of the road thereon, for the space of two years thereafter, raises, under the statute, a presumption of a conveyance and of satisfaction, and hence becomes a bar to an assertion by legal process, of such claim.
These conditions unite in this case, and not only does the title vest in the corporation, but the remedy given the owner, • under no disability, has been lost by lapse of time.
The right of a railroad corporation to enter upon and take possession of land, needed in the building of the road, before payment to the owner, when authorized by the power which exercises the right of eminent domain, is sanctioned by the ruling in
Raleigh & Gaston R. R. Co.
v.
Davis,
2 Dev. & Bat., 451, as necessary to the efficient prosecution of these great works of internal improvement, and, whatever may be the adjudications elsewhere, has been accepted law in this State. And so the remedy of attaining compensation, which the statute provides, must alone be pursued for that purpose.
McIntire
v.
Western
N. C. R. R. Co.,
67 N. C., 278;
Johnson
v.
Rankin,
70 N. C., 550;
Phifer
v.
Railroad,
72 N. C., 433;
State
v.
McIver,
88 N. C., 686; Pierce on Railroads, 163.
“If the actual payment of the compensation were required,” says the author last quoted, “ to precede an entry for construction, the entry would be delayed until the amount, when not agreed upon, had been finally determined by legal proceedings, and such delay would often result in serious detriment to public interests.”
And so Mr. Justice Rodman indicates the rule, in
McIntire
v.
W. N. C. Rairroad Co., supra,
thus :
“
If the officers of the coporation cannot enter on lauds and make surveys without a trespass, they would never locate the road. And if the road were located, and its construction delayed until the damages to all the land owners on the route were asceatained under the act, the delay would be indefinite, and of no benefit to any one. * * The act intended to allow the company to enter and construct its road at ouce, leaving the question of damages, if the parties could not
agree
on them, to be settled afterwards. The company was not obliged to initiate proceedings. It is not obliged to know
that the owner claims damages,
until he claims them in the mode provided.”
The provision in the charter granted to the predecessor, in February, 1881, is a transcript of a similar section, (29), contained in the act of 1848-49, ch. 82, incorporating the North Carolina Railroad Company, and this latter has been recognized and enforced as valid, by express adjudication in
Vinson
v. N.
C. R. R. Co.,
74 N. C., 510. In this case, proceedings were instituted by the company against the owner in 1865, a year after the road had been finished. It depended in the Superior Court of Johnston, until Spring Term, 1875, when the counsel for the company entered a dismissal, without prejudice, and without the knowledge of the defendant's counsel. A petition was filed by the plaintiff Vinson, to recover damages on account of the construction of the road over his land. The Court held, and so declared, in reference to the recited section of the incor-
purating act:
“
It is a postive statute of limitations, and it clearly bars the plaintiff’s action, unless it be saved by the special circumstances relied upon,” &e., and, adjudging that they could be allowed no such effect, the petition was dismissed at petitioner’s cost. We refer to the case, only as showing a judicial determination of the efficacy and operation of the clause under which the plaintiff claims its proprietary right to the land in dispute, without reference to some of its other features.
We proceed now to consider the grounds as contained in the series of instructions asked, on which the recovery is resisted by the defendant, and these are:
I. The presumption is not raised under the Act, when there is an adverse holding by another, and if it is, it is rebuttable and has been rebutted.
The presumption of the conveyance arises from the company’s act in taking possession and building the railway, when in the absence of a contract, the owner fails to take steps, for two years after it has been completed, for recovering compensation. It springs out of these concurring facts, and is independent of inferences which a jury may draw from them. If the grant issued, it would not be more effective in passing the owenr’s title and estate. Thus vesting, it remains in the company as long as the road is operated, of the specified breadth, unaffected by the ordinary rules in reference to repelling presumptions, by virtue of §23, chapter 65, of the Revised Code, brought forward in The Code, §150. This declares, that “no railroad, plank-road, turnpike or canal company, shall be
barred of,«r presumed to have conveyed,
any real, estate, right of way, easement, lease-hold, or other interest in the soil, which may have been condemned
or otherwise obtained for its use, as a right of way, depot station-house, or place of landing, by any statute of limitation, or by occupation of the same by any person whatever.’’
This is the substance of the first, fourth and sixth instruction demanded, to which the statute furnishes a sufficient answer.
II. The fifth instruction asserts an estoppel, upon the company, growing out of the knowledge by its officers, of the erection of theffiouse by .the defendant, while it was being built, and assent implied by that silence and aequiesence. This objection is met by the cases of
Holmes
v.
Crowell,
73 N. C., 613;
Exum
v.
Cogdell,
74 N. C., 139;
Mason
v.
Williams,
66 N. C., 564;
Melvin
v.
Ballard,
82 N. C., 33; Big. Est., 480. Mere silence while a trespasser is improving real estate as if it were his own, while it may sustain a claim for the value of such improvements made in good faith, cannot be allowed to transfer the property itself to the usurping occupant.
... III. What has already been said, disposes of the matter of the instructions numbered 8 and 9.
. IV. The 7th, 10th and 11th instructions involve the proposition, that the land sued for, is no longer needed by the company, • .and reverts under the charter.
' We concur in the answer given in the charge, that the statute does not require the occupation and direct use of every foot of the condemned area, for building, embankments and the like, but preserves the property in the company, so long as the road runs over the land and is operated by the company. A permissive use of part of it by another, when no present inconvenience results to the company, is not a surrender of rights of property, and, indeed, to expel an occupant under such circumstances, would be a needless and uncalled for injury. This may suspend, but does not abridge the right of the conpany to demand restoration, when the interests of the road may require its use.
» -V. The constitutionality of the act has been considered, and •it rests upon well considered adjudications that we do not feel at liberty to disturb.
We do not find error in the refusal of the Court to give the instructions proposed by the defendant, nor in those given to the WV-
It is manifest, that whether the company has the estate in the land, or the right of way over the land, to which possession
is indispensible, it is entitled to recover the possession, and for this the action can be maintained. The right of possession is, and must be exclusive. Pierce on Railroads, 159-402, except at lawful crossings.
There is no error, and the judgment must be affirmed.
No error. Affirmed.