*1 IN THE SUPREME COURT. Light Cо. v. Bowman. Ervin, J., In to be my ought dissenting: judgment, prisoner granted new trial for reasons set forth the foregoing opinion Mr. Justice Barnhill.
CAROLINA POWER & LIGHT COMPANY WILLIAM BOWMAN MURPHY BOWMAN, and Wife, BETTY B. and W. W. SNOW.
(Filed 1949.) January, 1.Easements 5—§ mandatory injunction building plain- In an action for to remove a right way, burden is
tiff's to show that the build- way by ing right owners of erected the servient tenement enjoyment an interference with the use and easement. constitutes 2. Same— rule, right As a owner of servient tenement has enjoy- purposes for inconsistent with the free use and same
use of the ment easement. 3. Same— lines, Where an condemned for electric transmission right, ordinarily, condemnor has unobstructed at all use necessary times the servient the exercise enjoyment or incident thе casement. justify
4. Same—Evidence held directed verdict that defendants’ build- ing constituted interference transmission lines. decree condemned 50-foot for electric stipulated transmission owners that fee should have use all not inconsistent with the casement. Plaintiff’s subsequent evidence disclosed that lines, construction its transmission the owners of the servient tenement brick constructed covering extending upward almost the entire width of the heavily charged within a few feet of the lines. Defendants’ repaired tended to show7 that evidence the transmission lines could be difficulty, maintained over the without serious but proposed changes presence made its lines construction, equiрment. would necessitate additional labor IicM: wyas Plaintiff entitled to a directed verdict the effect the location of defendants’ constituted an interference with easement, particularly provision the exercise of view the decree of condemnation the owners of the servient tenement privilege agricultural pur should have the the land poses, which would seem to other exclude uses under the maxim altering. expressio un-ius exclusio est N.C.]
Light Co. v. Bowman. 5. Eminent Domain 26—§ an Where easement for electric transmission lines has been condemned compensationpaid therefor, and an the appropriating the decree has the effeсt of public withdrawing easement for service to the from the owner of any private fee public use which would interfere with the use, mandatory prohibitory injunction or prevent will lie to remove encroachment the easement. dissenting. J..
Stacy,
Winborne and Sea well, JJ.. concur in dissent. Appeal Carr, plaintiff from Term, JMarch. 1948, of Rohesox. by New trial.
This case was here at Fall and is in 228 reported Term. N. C. 319. The action was instituted to restrain the maintenance obstructions on land upon and over which the had an easement by condemnation for the construction and of its electric power lines. It was alleged that the defendants had a permanent erected brick now used as а picture moving theater, plaintiff’s right of way in violation of its easement and constituting an interference inconsistent with its ability operate, maintain, and repair trans- mission and creating hazards to plaintiff, defendants, and the public.
The defendants Bowman admitted the construction of the theater as a permanent described, structure land but entered a general denial plaintiff’s allegations, and further denied that had a valid easement as simple defendants’ fee title to the land, alleging specifically that at the time defendants took title to no thereon, by condemnation, contract of record in appeared the office Register Deeds county. defendant Snow is lessee of the theater and has no other interest in the controversy. trial, Term, At first June judgment there was involuntary nonsuit, and Fall plaintiff’s appeal Term, 1947, therefrom was heard at of this Court. It was determined that appeal oil was valid and and that subsisting, proceedings Court, record in under judgment Superior pertinent statutes, were office, recorded in and that required Register’s plaintaff’s also not lost judgment easement described defeated subse- under defendants Bow- whom quent conveyance owners man of nonsuit and the cause re- judgment claim. The was set aside of fact pleadings. manded for the determination issues raised allegation March the issue raised Term, On the triаl at jury answer ivas submitted to the denial complaint of defendants’ theater con- “Docs and use follows: the erection THE IN SUPREME COURT. Light Co. v. Kowhas. stitute interference inconsistent with plaintiff’s easement, alleged complaint?” Other to in questions referred were pleadings eliminated.
It was stipulated plaintiff’s predecessor title, Yadkin River had condemned feet in over Company, fifty width the land of grantors instituted and proceeding prosecuted to final Superior Court Robeson County *3 the defendants Bowman of land subject are the owners to such rights has of by virtue the easement in thereon. The roll in proceeding was offered evidence. Therein rights upon of payment $500 and compеnsation were described defined as “right of way” across the lands of “for the defendants of purpose and forever maintaining, and inspecting keeping repair its said lines for the transmission of and its and electricity telephone lines, the right of access and for along officers, said easement and em agents and of ployees, those its successors and for of assigns, inspect ing, repairing and said for maintaining lines and transmitting electricity and telephone lines, said easement and of and keep right way land adjacent thereto of all such and objects cleared trees fall might And, and across for except aforesaid, said lines. the purpose peti tioner shall not interfere with the defendants; and the defendants shall have full and right to use the land over which said easement and right way is condemned for and all not inconsistent with said of petitioner, its successors and as In signs.” the Superior time, Court at term to which the wTas proceeding removed, it wrasadjudged consent that final order of the Clerk be in all respects confirmed, “Provided, following proviso: defendants and their heirs and assigns shall have the right privilege to use a portion condemned for proceeding agricultural purposes when necessary plaintiff.” the use Plaintiff offered evidence that the defendants had recently erected now maintain 50-foot land so condemned brick building foundation, wide, concrete 35 feet 95 feet and 20 or 25 long, feet high, immediately underneath power lines which carry 110,000 volts of electricity. The roof of the within approximately feet plaintiff’s power lines, and metal vents extend above the roof within 8 feet and 4 inches of Four the wires. wires the transmission of this electric current are from strung steel towers 350 feet apart were suspended over this 50-foot right of way at the time of the erection of the building. The building covers all but a small portion of the width way length, entire and a smaller building is also on rear of brick building. The brick building N.C.]
Light Co. v. Bowman. constructed and is now in a moving use as theater with picture seating capacity some 400. This evidеnce was uncontroverted.
Plaintiff also offered from electrical experts engineers that the height, size, construction of this way interfered with the inspection, maintenance and repair power lines and prevented free access over and along for this purpose, particularly injury structures, case and for the of new and installing larger conductors now in incident prospect to a new major steam construction near plant under Lumberton. would also interfere with and use of transportation equip- ment and material for work wires, insulators, conductors towers.
The defendants offered an electrical engineer who described some detail mеthods which his opinion could used be without serious diffi- culty making repairs by pulling wires one side and away the building; though some difficulty presented it would not be that in insuperable; Company case the should Light decide relocate some of its structures desire to space use the occupied it would inbe way; the delicate work insula- changing *4 tors, or in case lightning strike, should hazards potential wires, might the and who be would building, those therein be occasioned. He in testified effect if it to change larger became conductors for necessary ones the would building interfere with the necessitate addi- tional construction. There was also the testimony that line came contact with burn, the and that due building likely of on presence the of more labor .and addi- building the tional equipment required be that electric might repairs; to make wires are cities, and strung buildings though over Lumberton other usually these are low do voltage carry 110,000 wires and volts electricity.
The defendants consented that the frame referred to in the building removed, as on testimony partly right way having put the been there without by knowledge. another defendants’
At the court plaintiff conclusion the moved the testimony upon pleadings and evidence for a verdict its favor upon directed denied, submitted, plaintiff issue which motion and excepted. Among was other asked court to requests instruction, plaintiff charge as jury follows:
“The charges law, (as court as a matter under this contention you size, upon plaintiff’s character and location of and its effect use of its to have the land easement), that entitled within plaintiff right way, every thereof, kept open the boundaries part nature, by any permanent unobstructed structures such on agents employees may so that and its travel question, plaintiff foot and as occasion by along may vehiclé said THE IN SUPREME COURT. Light Co. v. Bowman. arise, and for all necessary reasonably now, which may probably future, become at time in the necessary the inspec- tion, repair, maintenance, and operation reconstruction of its trans- mission I chаrge you that if should find from gentlemen you evidence, and by weight, said greater general character and is so located and maintained plaintiff’s easement, that it would constitute a inconsistent easement, it will be your to answer the issue I duty yes. further charge nature, that if you you size, believe respect location said should answer you the issue yes.” This denied, instruction was request excepted. no,
The from jury answered the issue judgment the verdict plaintiff appealed.
Varser, & and A. McIntyre Henry Y. Arledge plaintiff, appellant. & McKinnon Seawell and & defendants, McLean Stacy appellees. appeal J. The former this case plaintiff was from a Devin, Bowman, judgment Light nonsuit. Co. 228 N. 531. The then debated was question whether plaintiff’s easement was valid acquired by рroceeding and subsist- purchasers ing against subsequent owners of the land. Consideration of pertinent recording statutes was involved. Plain- under tiff’s the condemnation decree upheld, were the cause was remanded for determination issue raised action for mandatory injunction denial to remove way. obstructions burden to show that the erected and
maintained of land strip condemned construction and plaintiff continued of its power electric transmission lines constituted an interference inconsistent with plain- tiff’s easement.
The uncontroverted evidence disclosed that the defendants erected suit was shortly begun before this now maintain on plaintiff’s 50-foot right way substantiаl brick permanent theater 35 feet building and 20 or wide, feet underneath long, high, feet electric 110,000 transmission lines power carrying volts, the top within 10 feet of the thus coming charged. wires The wires supported by steel towers 350 apart suspended feet over the building which covers almost of way. the entire width Metal vents the roof of within 8 feet, this reach inches It the wires. was testified height, size, that due to its construction and this building location inter- fered with inspection, repair maintenance power lines.
Light Co. Howmax. v. It was also testified that plaintiff building major plant steam electric near and in Lumberton, connection with it expects to make changes lines over including portion defendants’ and to install larger conductors and wires, heavier with which operations the building would interfere. Defendants’ evidence to show tended methods by which ordinary repairs could be and operations made maintained on plaintiff’s power lines without serious with the as now difficulty located, though this might labor, entail some additional equipment but also appeared that of and in purpose making changes wires, conductors installations the presence of additional construction, necessitate labor and equipment.
After careful consideration of the evidence adduced at the trial as it we appears record, reach the conclusion that plaintiff wаs entitled to have the court charge jury, prayed, that found to as testified, be true should answer they the issue submitted in favor of the for instruction plaintiff. prayer Plaintiff’s should have been given substantially prayed. There error refusing plaintiff’s for which a trial prayer new must be awarded.
The easement acquired by described and defined in the final the condemnation and this proceeding, was offered in evi- of plaintiff’s dence as the basis By action. decree along access 50-foot land described for constructing, inspecting, repairing maintaining electric transmission while landowner retained the to use the land so condemned for all purposes inconsistent with the plain- easеment. tiff’s draw
To a definite line reciprocal between the and oftentimes over- lapping rights obligations the owners of the dominant and servient in an tenements easement is not But always simple. rule in regard to land condemned for use for transmission lines to be that the has the seems landowner make use the strip of land condemned manner does not conflict with Company, the Power and which is not inconsistent with use of allowed, which condemnation was and which not interfere with the free exercise the easement acquired. does Keste Co., 22; v. Power Alabama California-Oregon Oregon rson Power Co. Co., Alabama Berry, 20; Cantrell v. Power Appalachian Va. 710; 431; Houston Aycоck Lighting & v. Sou. Natural Gas Ga. Patterson Orchard Hastings Corp., App. *6 1029, v. Southwest Arkansas Utilities Ark. 65 Corp., Co. A. L. R. R, McLean, 1446; 207, 209; 1463; 30 C. S. 46 A. L. R. v. J. R. N. C. Wissler, 498, 461; 269, 74 S. E. Power Co. N. C. 76 S. E. Co., 214 Collins v. Alabama Power Ala. 643. owner Ordinarily the of THE IN SUPREME COURT.
Light Co. v. Bowman. the dominant tenement has a right to the unobstructed use at all of times servient land of rights exercise such necessary inci- dent of enjoyment the easement. 17 A. J. 1007. The principle is well stated in the recent case of Alabama Power Co. v. 222 Ala. Berry, 20: “The easement and all servitude extend to uses directly incident- conducive ally to the advancement of purpose which the of right was way acquired, fee, and the owner merely retains carrying title right make such use no way full and interferes free exercise of the easement.” of right landowner erect maintain a on the of an
right
"wayof
was
company
adversely
decided
to the
Co.,
landowner
Collins v. Power
In Patterson Orchard v. Southwest Co. Arkansas Utilities Corp., Ark. it was held that by virtue the decree of condemnation of plaintiff’s land for erection and electric Power was Company granted possession exclusive property to the extent such wras for this possession necessary pur had pose, possession but the owner the land also subordinate paramount possession condemnor, and could lawfully exer cise and all rights except such as were inconsistent inter granted. ference the easement Co.,
In Cantrell Appalachian 148 Va. Court quoted with from 9 R. L. is an approval 784: “It established conveyance that the principle gives grantee as are necessary incident enjoy reasonable proper ment the easement.” And the Court also quoted from Curtis on the Law of Electricity that the Power Company “may make such use of acquired as necessary or convenient for the for which In Aycock acquired.” v. Houston Lighting & Power *7 TERM, FALL 1948.
Light Co. v. Bowman. S. W. it was held condemnor the such dominion acquired over the land as is “proper needful to out the cаrry purpose which the taken,” land is owner of the the fee to use the property a manner not inconsistent with the uses which it was condemned.
It was the suggested by defendants at the case bar that the language in which the easement is out in judgment set here is com- sufficiently to prehensive as a open question leave of fact whether particular obstruction on plaintiff’s right maintained by the defendants is inconsistent with the Power Company’s easement. But we think the recital of the of the respective rights condemnor and the landowners stated in the here judgment are similar to substantially those considered examined, Courts the decisions whether contained in decrees con- dеmnation contracts and and that the conveyances, general principles herein applicable stated are language
and the facts of this case.
Applying law principles these respect conflicting claims of the owners the dominant servient tenements in the use of a of land strip appropriated and operation of an electric power line, think pursuant we where to decree of condemna- tion the has erected company steel towers there- strung from its wires carrying powerful electric current over and upon such of land for purposes declared, uses public the servient owner not be may permitted, and over protest objection, to erect and maintain a large permanent almost building, covering the entire width extending within a few upward of the feet wires, and power charged facts these made to properly appear evidence, this would constitute use incon- landowner sistent the easement and an encroachment on rights acquired. seem, located, Such a so necessarily with the interfere easement,” exercise of plaintiff’s “right of access along said incident the maintenance of its electric transmis- sion lines. 28 C. J. S. 771.
Furthermore, considering for which the easement was land for the use stringing its overhead wires as con- significant the Power it is templated by Company, final decree of condemnation the Superior Court the land, owners claim, under whom the present incorporation consented to the of the judgment declaration that express the defendants should “right have the the land privilege” agricul- use condemned “for tural thus purposes,” apparently agreement indicating that the effect of was to divest decree them of all 50-foot strip save surface, cultivation maxim under the expressio unius est ex- clusw alterius. did Evidently not contemplate the use by *8 IN THE SUPREME COURT.
690
Light Co. r. Bowman. landowner of and to airways occupied occupied by tbe the zone be should Power Again, Company elevated lines. plaintiff’s power or or or the loсation structure its raise any change towers, make would its the brick described neces- wires, presence lower has right way acquired interfere with the use sarily for purpose. that call attention to the evidence sometimes com-
Defendants electric instance, over in the first but such string buildings their wires panies electric the distributor of current assumes the risk and undertakes case and construction, and mainte- difficulty inspection the burden increased voltage. wires low But that is not our case. nance, usually carry of a of land strip use Here, plaintiff acquired to and has continued until unhampered by enjoy obstructions building. erection owner of land to an subject When the servient thе con- it of erect, over and electric lines undertakes to upon struction maintain, a size, erect and permanent building height, does shown to hold dimensions the uncontradicted owner, remedy the dominant without Company, adequate pre- Power this encroachment an easement lawfully acquired vent seem an A degree required to us create unwise care is precedent. high current, who handle and distribute electric of care degree being those dangers reasonably apprehended that commensurate with powerful with so subtle when a has been agency, contact of public therefor its exercise safety public conferred the interest hаmpered should not be by permitting service unreasonable encroachments or with the lawfully interference means facilities it use. may Co., 256, N. 4 Light (2) 858; 216 S. E. v. Pine Arrington Calhoun Co., N. C. 149 S. E. Helms v. 192 N. C. Power tops. Co., 9; Lawrence Power 190 N. C. 735. Upon S. E. now owned the defendants the use a 50 feet wide strip erection, trans- maintenance had for a lawfully appropriated public. lines been service to the mission 56-5; 40-1; G.S. Wissler v. N. C. S. E. 460. G.S. for the easement taken to law was compensation according paid. Just a withdrawal of of this private This effected the owner himby public extent that such use would interfere with use. Gas v. Sou. Natural 45 Ga. And where Hastings Corp., App. 774. which has cor by public been service enabling public it to рoration perform duty invaded interfered with a manda- enjoyment remedy by injunction Olive, is available. R. R. v. prohibitory (264), N. C. tory E. 263. S. FALL TERM, 1948.
Light Co. v. Bowman. We conclude that entitled have the instructions substantially prayed given jury, there must be another trial for the determination of proper the facts from the evidence *9 with accordance of law herein principles stated.
New trial. J., Stacv, C. The ought case to turn on whether the trial dissenting: court has followed our opinion. former Instead it has taken a reverse on course the second appeal.
The late Dean MacRae was wont say classes, to his when some “You ambiguous given, answer cannot ride two going horses in oppo- site directions at the same If time.” the venerable dean were living today, would doubtless erase aphorism mind, he from his for here the Court two ways True, decides the same case. the majority says not, uses it, words to but let us a look many say take at the record.
The case has been here before the “law as previously established” effect, has intervened with its both on binding parties the Court. Whatever was decided on the first now appeal judicata, res and, right R., it wrong, George bears the v. impress finality. R. 210 N. 58,C. 431; Bank S. E. v. Furniture 475, C. 927; N. S. E. R., 460, Hospital v. R. 157 N. C. S. Asso. E. Stanback v. Hay wood, 213 N. C. 196 E. 844. “A S. decision by Supreme Court aon constitutes the law of prior appeal case, both subsequent pro in the trial court and on a ceedings subsequent appeal”—Headnote (6th), Rawls, C. Harrington S. E. 57, cited approval cases, later numerous some of them collected in Robinson v. McAlhaney. 6 E. 216 N. C. S. 517. questions
Two were decided the former appeal: - 1. Is recorded but unregistered easement good against subsequent registered deed of a purchaser for a valuable consideration?
This question was answered in the aby affirmative divided Court. Nevertheless, law of and if the defendants had sought relitigate matter the trial court they would have been met with res plea judicata and short shrift would have been made their position. only remedy The to them as open ruling was a to rehear. Pinnix petition Griffin, 221 N. S. E. (2) 366. No they doubt were advised by counsel to accept decision first withоut question protest, largely further because of the on the ruling second : question, follows so,
2. “If does the erection of the as described an buildings constitute interference inconsistent the rights acquired by plaintiff by con- ?” demnation contended that verdict should have been in its directed
favor no dispute as there was respect the character and position IN THE SUPREME COURT.
Light Co. v. Bowman. defendants, this Court should buildings erected instruct trial court to direct such a verdict. Plaintiff’s accordingly former the second position adopted appeal. Contrariwise, was not or dissent the fol- question opinion was answered without division of land lowing subject “Is of use language: there evidence From eаsement?” plaintiff’s right way inconsistent offered, an examination of the record it would seem that the evidence tends show when considered in the most light plaintiff, favorable land in and maintenance that the defendants’ use the erection of would and an constitute obstruction buildings complained ac- interference with inconsistent with the easement plaintiff’s rights and, that raised and evidence quired, pleadings the issues of fact (italics added). should have been submitted to the jury *10 Term, 1948, hearing When the case on for another at the March came Court, Superior expert engi- Robeson the offered three electrical who testified that the the theater the first presence neers “would with ordinary maintaining, repairing interfere the acts place, “would the operation”; secondly, the line increase keeping hazards,” and “an obstruction to the maintenance and repair constitute “would work of lines,” and, make the maintenance more thirdly, these time,” and add to cost of difficult, operation. more require on defendants, hand, Vannort, The the other offered Bertram O. who it as his consulting engineer, gave opinion plain- electrical repaired tiff’s lines could be maintained “over the theater with ; where it is located” and not as done presently conveniently while there, “in in itself does not my opinion present in detail how any great diffiсulty.” explained The witness run kept repair. which over and above are maintained buildings, “A crew would not have properly organized proper supervision under problem trouble maintenance.” returned jury following verdict: constitute
“Does the erection and of defendant’s theatre easement, as alleged interference inconsistent with complaint? Answer : No.” verdict,
From on as judgment plaintiff again appeals, assigning in its principal exception the refusal the court render favor on or to direct a verdict of tenor. pleadings like exception, assuming
The defendants have heed to this paid little law of on former appeal under the the cаse the matter was settled is now res alike on courts. The trial judicata, binding parties it, still under- just court so understood as some members this Court it. stand
N.
Light Co. v. Bowmas. however, Surprisingly, now majority completely ignores the deci- sion of the second on question the former : appeal, question says “The then debated was whether easement acquired by judgment in valid proceedings was subsisting against subsequent purchasers from owners of land.”
If this were that the Court decided former appeal, the judg- ment of nonsuit could not reversed, have been for the burden was on the plaintiff to show an inconsistent use before could ask for a ruling its favor. On this further showing, was not different from materially record, what it is the present the Court said the issue of fact was for the jury.
Compare the Court’s
present statement
the above quotation from
the former
and note how
opinion
consistency
the “law
the case”
harm been abandoned. While
Court
can overrule its previous deci-
sions, it is
at liberty
law of
ignore
the given
once estab-
lished. Newbern v. Tel.
Can it be that the defendants
bound
our
former opinion and the
plaintiff is
Is
not?
principle
equality or the
of fair
rule
no
play
longer
applicable
between the present parties litigant?
Is this Court
not to
its own
respect
established “law of
?
the case” What
becomes
our
repeated decisions
subject?
It will not do to ignore these
nor
questions
or specious
answer them
sophistry
Hav
reasoning.
ing gone
great expense
decision,
with our
comply
former
defend
ants are entitled to know why
compliance
should now mean their
*11
undoing. “It was
of
duty
the
the
below to follow
judge
ruling
the
made
Co.,
here,”
elder v.
123
164,
Ins.
N.
31
E. 470, just
C.
S.
as it is
Pretzf
our
honor
duty to
the law of
case,
the
rather than to seek to evade it.
Where the
subsequent hearing is
substantial
conformity
opinion
the
n ofthis
not
Court,
questions may
the same
be
on a
again
presented
second
Cheek, 112
Bradsher
“It
appeal.
838,
v.
C.
E. 533.
is not
17 S.
a
raising
allowable to rehear
cause
on a
points
second
the same
appeal
R.,
on a
decided
former
128
appeal”—Ileadnote,
269,
Kramer R.
N. C.
v.
643, which, 868, 1459, said, So. 46 A. L. R. it is is case in only the dealing the books with the of a erection beneath right way transmission lines. is There also cited second Kesterson 114 Ore. 228 P. in- California-Oregon which volved of lumber of a piling right way the the company. Both these cases are reason of distinguishable by different fact situa- tions and variant easements. Both provisions thesis, the affirm the however, that language particular governs the the the respective determination of the of the It rights parties. general is the IN THE SUPREME COURT.
Light Co. v. Bowman. law of of a purport contracts the written is to instrument gath be ered from four four corners, and the bе corners are to ascertained from Casstevens, language the used the Jones instrument. N. C. Arenson, S. E. Whitley v. N. C. S. E. (2) 906.
It is to observed that the easement not question, only declares the rights but those well. petitioner, defendants as When mutual rights obligations are set in a single out instrument the rule of reason- able enjoyment applies. forbearance S. 771. J. Mutual ac- yardstick commodation of the rights parties are to be measured. Under this evidence, rule the conflict has jury determined that both within parties are their stipulated rights according subject the terms of the easement. grants build, The easement maintain, inspect defendants, lines keep repair over the lands and at provides that, thе same time except purposes, grantee “shall not interfere Then im- defendants.” follows provision full mediately the “defendants shall have lands over use the which the easement and way is con- and all not any demned inconsistent with said purposes petitioner, assigns.” its successors and “for language, Note the not inconsistent said easement.” Inconsistent use against defendants, the restraint while interference is the prohibition An inconvenient use is not plaintiff. necessarily incon- sistent one. in favor Undoubtedly the reservation owners at of its price acquisition; reduced the easement the time would now or a take a more liberal less grant, restricted right, just compensation it is but meet that should be the quid pro quo. shows, The evidence of the defendants has clearly jury found, of the lands is not defendants’ use inconsistent with easement. For to hold as a is to this Court otherwise matter law reform the ease- it, and ment, interpret not to direct conflict with its previously law the case. established
It noted that law dealing should be we are of ease- in condemnation ments, containing special but with provi- inter sions, reciprocal rights which establish restraints and the partes, *12 law of declared. the case heretofore is not all one vital Moreover, way the evidence issue that an finding may it is the rule us affirmative be directed in favor party having proof, the burdеn where there is evidence Mill, contrary Forsyth to a inference. v. Oil 167 N. C. support R., Mfg. 849; S. E. Co. v. R. N. C. McIntosh ever, 632. “It is for the court to Practice, rarely, permissible direct a in favor of a whom party verdict rests the burden proof.” Williams, Barrett S. E. (2) 217 N. C. 383. Manufacturing R. v.
R.
Co.
So,
notwithstanding
special provisions and restraints of the ease-
ment, the “law of the case” and the
evidence,
conflict
and despite
adverse
a
finding
jury,
third trial is ordered to
end
plaintiff may again move
a directed verdict in its favor. What
becomes of all the decisions at
variance
such procedure? There is
none to
it.
is sui
from
support
generis
procedural
The case
a
standpoint.
McLean,
Its
parallel
nеarest
to
seem be Williams v.
WiNBORNEand concur dissent. well, Sea AND CAROLINA NORTHWESTERN RAILWAY COMPANY v. PIEDMONT WAGON AND MANUFACTURING COMPANY. 1949.)
(Filed January, — 1. Eminent Domain 20§ ½ company given right Where a railroad which is eminent domain by acquiescence its charter constructs its road with the the owner acquired conveyance, land to which it has not title or it acquires right way by implied grant statutory presumption, right compensation. owner to maintain an action for 2. Same: Eminent Domain 21a—§ company right way by implied grant, a railroad Where has taken a compensation prior ripen-
the owner’s action for must be instituted ing company by possession prior of title in the railroad adverse the bar any applicable statutory charter or limitation. 3. Eminent Domain 26—, §§ ½ company having Where railroad of eminent domain builds by conveyance lands road over to which it has not title condemnation, compensation and no action for is instituted the owner limited, acquires way by implied grant within the it time might by condemnation, full width have the express taken if not under provision, charter under then law. 4. 5— Easements § company acquires Where a railroad either condemna- law, may tion or remains owner fee he any purpose use the land not inconsistent with the easement actually purposes, subject extent the land is not used railroad company of the railroad extend use of the full width whenever its business necessitates.