Hendrix v. Southern Railway Co.
77 S.E. 1001
N.C.
1913
Check Treatment
*15 Allen, J.

Tbе demurrer admits all of tbe allegations made by tbe plaintiff, and if any part of tbe complaint presents facts sufficient to constitute a cause of actiоn, or if facts sufficient for tbat purpose can be gathered from it, under a liberal construction of its terms, tbe pleading will be sustained. Brewer v. Wynne, 154 N. C., 471.

Under tbis rule, it is admitted tbat tbe defendаnt bas entered upon tbe land in controversy and bas removed 6,000 cubic yards of dirt, when it was not necessary to do so in tbe use of tbe right of way, and for tbe sole purрose of filling at other places, which is an invasion of tbe rights of tbe plaintiff, although it be conceded tbat tbe defendant is right in its contention as to tbe constructiоn of tbe deed for tbe right of way, and we are, therefore, of opinion tbe demurrer was properly overruled.

Tbis disposes of tbe appeal; but tbe questiоn as to tbe rights of tbe defendant under tbe deed, which is made a part ‍‌‌‌‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌‌‌‌​​‌​​‌‌​‌‌‌‌‌​​​‌​​​‍of tbe complaint, bas been fully discussed, and as it will necessarily arise on tbe trial, we will considеr it.

Tbe plaintiff contends tbat tbe right of way acquired by tbe defendant under tbe deed extends no further than tbe land actually occupied for railroad purposes, for its banks, ditches, and works, as located soon after tbe execution of tbe deed, while tbe defendant contends tbat it is of tbe width provided for in tbe charter of tbe Piedmont Railroad Company.

Tbe deed is signed by twenty-six landowners. It recites tbat tbe construction of tbe road “will be of great importance to tbe district of country through which it will pass, and -yill, it is believed, add materially to tbe value of tbe lands”; tbat tbe grantors are “anxious, as far as possible, to induce tbe construction of tbе work through their respective lands,” and it conveys “all right, title, and claim to so much of our land as may be occupied by tbe said railroad, its banks, ditches, and works.”

Tbe parties to tbe deed were dealing'with tbe future, and instead of desiring conditions to remain as they ‍‌‌‌‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌‌‌‌​​‌​​‌‌​‌‌‌‌‌​​​‌​​​‍were, they hoped for greater development, and convеyed so much of tbe land “as may be occupied,” etc.

*16 It was within the contemplation and expectation of the parties that the business of the railroad would increase, and that it would require more land for its operations, and while the grantors might thereafter have to surrender some additional land for this purpose, they would be compensated for the loss in the increased value of the adjoining lands.

The question involved in R. R. v. Olive, 142 N. C., 257, is similar to the one before us. In that case the deed to the railroad company conveyed a right of way, but did not specify any рarticular width. It conveyed only so much of the grantor’s land as the railroad company, under its charter and amendments, would have a right to condemn, and upon examination of its charter it was found that that charter did not specify any particular width, but gave the railroad company the right to condemn land,for its right of way and all other purposes of the company. In construing that deed, this Court used the following language:

“If we hold that a right of way of the width necessary to carry into effect the purposes of the company was granted, we are confronted with the question whether the words ‘purposes of the company’ must be confined to thе purposes which existed at that time, and that its power to enter and occupy was exhausted when the road was constructed. This construction would, in the light of whаt we know to be the purpose of constructing a railroad, be entirely too narrow. It would confine the company to the soil actually covered by its сross-ties and rails, with the drains on either side. When we examine the charters of other railroads granted by the ‍‌‌‌‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌‌‌‌​​‌​​‌‌​‌‌‌‌‌​​​‌​​​‍Legislature from 1833 to I860', we find that when the width of the right of way is fixed, it is usually 100 feet from the center of the track. Revised Code, ch. 61, entitled ‘Internal Improvements,’ confers upon all railroad companies the power to condemn land of the width of ‘not less than 80 feet and not more than 100 feet.’ It would seem that in the absence of any limit in the charter, the Chatham Railroad Company, by the genеral public law referred to and the express grant of all ‘privileges, rights, etc., of corporate bodies in the State,’ had ‘the righ*to condemn’ to the extent оf 100 feet; and thus we find a standard by which to *17 measure tbe right granted by tbe deed of May, 1862. Unless we can, in tbis way, give effect to tbe deed by rendering tbe description of tbe eаsement certain, we would be compelled to bold it invalid. Tbe maxim, ut res■ mcugis váleat quarn pereat, admonishes us that it is our duty to uphold tbe deed if by reasonable construction it can be done. We think thаt tbe words, 'so much as tbe said road would have tbe right to condemn/ carry tbe right of way to tbe extent of 100 feet, which would ‍‌‌‌‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌‌‌‌​​‌​​‌‌​‌‌‌‌‌​​​‌​​​‍be fixed by adopting tbe center of tbe track as tbe point from which tbe measurement should be made, extending 50 feet on each side.”

Tbe language quoted in Earnhardt v. R. R., 157 N. C., 362, from tbe Olive case, as to tbe construction of charters granted about tbe time of tbe charter to tbe Piedmont Company, is pertinent to tbe construction of a deed executed for tbe same general purpose: “The point of view from whiсh charters for railroads were drawn in tbis State fifty years ago must not be lost sight of in construing them in tbe light of present conditions. If, to induce tbe investment of capital in tbe construction of railroads and development of tbe country, large privileges were conferred, not inconsistent with tbe exercise of tbe sovereign power o.f tbe State in controlling them, we may not construe them away without doing violence to sound principle and fair dealing. When these rights of way were 'granted, оr statutes enacted permitting their acquisition in tbe exercise of tbe right of eminent domain, it was contemplated that they should be of sufficient width to enable tbe сompany to safely operate tbe road and protect tbe adjoining lands from fire communicated by sparks emitted by tbe engines. Land was cheap and population sparse. Tbe railroads, as tbe charters show, were to be built by tbe citizens of tbe State, tbe capital stock to be subscribed by large numbers оf people; Legislatures were ready to make broad concessions to these domestic corporations, and, as shown by tbe record in tbis and othеr cases in tbis Court, tbe owners of lands, because 'the benefits.which will arise from tbe building of said railroads to tbe owners of tbe land over which tbe same may be 'construсted will greatly ex *18 ceed the loss which may be sustained by them/ were desirous to promote the building thereof, and to that end to give them rights of way over their lands. When the rоad has been constructed and the benefits enjoyed, although new and unexpected conditions have arisen, the rights granted may not be withdrawn, although the long defеrred assertion of their full extent may work hardship.”

The same rule of construction was applied in New Bern v. R. R., 159 N. C., 543, to a contract entered into in 1856, by Avhich the railroad agreed to grade Hancock Street and to keep and preserve it in good order, and a mandatory injunction was there sustained commanding the defendant to pave the street, the Court saying, among other things: “This obligation ‍‌‌‌‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌‌‌‌​​‌​​‌‌​‌‌‌‌‌​​​‌​​​‍is not to be measured by the size'and condition of the city at the time when the contract was entered into. The increase of population and the consequent growth of the city must necessarily have been within the purview of the parties at the time the contract was made.”

We are, therefore, of oрinion that by correct interpretation of the language in the deed the right of way of the defendant is confined to the land occupied for its tracks, banks, ditches, and works, but that such occupation is- not to be determined by the needs of the defendant at the time of the execution of the deed, and may be extended from time to time, when necessary to meet the growing demands upon the defendant, and for the development of its business, not to exceed, however, the width of the right of way provided in its charter.

If the defendant exceeds the right conferred as herein declared, the plaintiff may recover the damages directly caused thereby, but the defendant is not liable for damages incident to the lawful exercise of its right.

Affirmed.