Dowling v. Southern Railway Co.

140 S.E. 213, 194 N.C. 488, 1927 N.C. LEXIS 134

• Court: Supreme Court of North Carolina
• Decided: November 9, 1927
• Status: Published

Opinion

Stags:, C. J.,

after stating the case: This is not a controversy without action, submitted on an agreed statement of facts, for the determination of a question in difference between the parties, as authorized by C. S., 626, but it is an action to quiet title and to remove cloud therefrom. Certain facts having been agreed upon by the parties, a jury trial was waived and the matter submitted to the court, on the facts agreed, for determination and adjudication of the rights of the parties.

With respect to the plaintiff’s appeal, it is sufficient to say that the assignments of error, appearing of record, are not well founded. The chief objection is apparently based on an anticipatory occurrence, which has not happened, and we think the judgment accords to the plaintiff all that is warranted by the instant facts. Plaintiff has no just cause to complain.

The defendant’s appeal presents the question as to whether the Atlantic, Tennessee and Ohio Railroad Company, by reason of the location of its railroad, through and upon a portion of the locus in quo in 1859 or 1860, and by virtue of the condemnation proceeding, instituted by plaintiff’s predecessors in title in 1862, acquired a right of way of “not less than eighty feet nor more than one hundred,” or only of the width of so much as was actually'occupied by its roadbed, track and physical structures.

It is the contention of the defendant that the condemnation proceeding, instituted by plaintiff’s predecessors in title, was brought under the general statute, and that the width of the right of way, condemned thereunder, was necessarily not less than 40 feet nor more than 50 feet on either side, measuring from the center of the track. For this position defendant relies strongly upon what was said in the following cases: Wearn v. R. R., 191 N. C., 575; Griffith v. R. R., 191 N. C., 84; Tighe v. R. R., 176 N. C., 239; Hendrix v. R. R., 162 N. C., 9, and R. R. v. Olive, 142 N. C., 264.

It must be conceded that the language used in some of our decisions, unless heed be given to its setting, is broad enough to afford some show of force and color of strength to the defendant’s position. For this reason the admonition given by Chief Justice Marshall in Burr v. U. S., 4 Cranch, 470, seems appropos: “Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered.”

The one circumstance which differentiates this case from all the rest is the fact that at the time the road in question was constructed through and upon a part of the locus in quo, the A. T. & O. R. R. Company was authorized to take only such right of way as was “wanted” or “necessary” for the construction of its line of railroad. This it took in 1859 or 1860. The condemnation proceedings, instituted in 1862 by the Lonergan heirs, plaintiff’s predecessors in title, was for the land thus previously taken and “so occupied.” Damages for this, and this alone, seems to have been awarded in said proceeding. At any rate, such was the holding of the court below, and no error has been made to appear on defendant’s appeal.

The law in respect to the right of way acquired by the Atlantic, Tennessee and Ohio Railroad Company was before us in the case of Griffith v. R. R., 191 N. C., 84, and we deem it unnecessary to repeat what has been so recently said in a valuable opinion in that case by Associate Justice Brogden.

The judgment must be upheld on both appeals.

Affirmed.