101 S.E. 208 | N.C. | 1919
The plaintiffs alleged that defendants had trespassed upon certain land described in the complaint, and asks for (596) damages. The defendants, T. J. Smitherman and wife, conveyed to the Durham and Charlotte Railway Company the land which is situated in the town of Troy, with the following habendum in the deed: "To have and to hold the aforesaid tract of land, with the appurtenances and every part thereof, unto the said party of the second part, its successors and assigns, to their proper use and behoof forever; to be used by the said party of the second part, its successors and assigns, for the purpose of erecting and maintaining thereon passenger and freight railroad station, and the proper appendages thereto, and to transact on said granted premises the usual operations and business of a common carrier of freight and passengers, and for no other purpose or purposes whatsoever." The deed also contained the following clause: "In the event the said parties of the second part, its successors and assigns, shall discontinue the use of the aforesaid granted station site for the purposes hereinbefore named, then, in that event, the aforesaid granted station site, with all the appurtenances thereto belonging, shall revert to the said parties of the first part, their executors, administrators, and assigns." The plaintiff, Norfolk Southern Railroad Company, has acquired all the rights which the Durham and Charlotte Railway Company had under said deed, subject to the restrictions of thehabendum and clause of forfeiture above set forth. *640
The plaintiff claims the land and the structures thereon, consisting of station house, tracks, etc., which were placed there by the Durham and Charlotte Railway Company, and the defendants allege that the property, and all rights therein, have been forfeited by violation of the terms of the deed, whereby the same reverted to the defendants.
The jury returned the following verdict:
"1. Is the plaintiff, the Norfolk Southern Railway Company, the owner of the land described in the complaint, as alleged? Answer: `No.'
"2. Did the defendant, prior to the commencement of this action, unlawfully enter upon the lands described in the complaint and commit a trespass thereon, as alleged? Answer: `No.'
"3. What damage, if any, is the plaintiff entitled to recover of the defendants for such unlawful entry and trespass, as alleged? Answer: `Nothing.'
"4. Did the plaintiff unlawfully cause to be issued a restraining order out of this court restraining the defendants from entering upon the lands described in the complaint, as alleged in the answer? Answer: `Yes.'
"5. What damage, if any, are the defendants entitled to recover of the plaintiffs for unlawfully causing such restraining order to be used as alleged? Answer: `$500.'"
Evidence was taken upon this issue, and, upon the examination (597) of the defendants' witness, W. I. Myrick, he was permitted to testify to a statement of S. T. Brown, plaintiff's local agent at Troy, to the effect that the property no longer belonged to the railway company, and it would have nothing more to do with it, as it then was the property of Mr. Smitherman. Brown delivered the key of the old building to the witness at that time. Plaintiff's objection to this testimony was overruled.
There was evidence that the plaintiff had erected a new building on the premises, where it had its ticket office and received some freight, but that it still used the old building and its appurtenances for the heavier freight and received such freight and shipped it from that building. It had received freight at the old building from defendant Smitherman, goods which were manufactured in its cotton mill nearby, and shipped the same on cars which were loaded at the old building, and there was other evidence of the continued use of the old building for the purpose of storing and handling heavy freight, or "overflow freight," until this action was commenced on 23 August, 1912.
The court instructed the jury, under the issues submitted, to *641 inquire and find whether the plaintiff had violated the stipulations of the deed and the clause of forfeiture, and gave these instructions, among others: "The burden is upon the defendant to satisfy you by the greater weight of the evidence that the plaintiff has ceased to use it for all purposes which they had a right to use it for under this deed; that is, ceased to use it for a passenger station and for a freight station; ceased to use appendages, the cartway, the car tracks, and any other appendages which you may find they had in connection therewith; ceased to use that property in any transaction usually conducted by a common carrier of freight and passengers, connected with it as a station. If the defendant has satisfied you that they have ceased all these functions, it would be your duty to answer the issue `No'; that the plaintiff is not the owner of it. . . . If they have failed to so satisfy you, you will answer it `Yes,' because the defendant in this case admits that the railroad is the owner of the property unless they have ceased to use it, as I have explained to you. . . . The plaintiff contends that up to 23 August, 1912, the date this action was commenced, it was in the actual use of that property as a railway station; that it was using the building itself and the appendages thereto as a freight station; that it was engaged in the transaction of business usually conducted by common carriers of passengers and freight in connection with that property as a freight station. The plaintiff contends that if you should find that it had removed its passenger station, and that if, before this time, it was selling tickets from the other office and receiving passengers there for trains going out and coming in, that even though you should find that its passenger service was conducted from the other station, it had not abandoned this property, and that it (598) had done nothing to affect its rights. The court charges you that even though the railroad conducted a separate passenger service, if they continued to use this place as a freight station, then you will answer the issue `Yes,' because so long as the railroad company continued to use it, either as a freight station or a passenger station, or continued to use the appendages there for the purpose of using that property as a freight station, then the property belongs to the railroad."
Judgment was entered upon the verdict. Plaintiff appealed.
after stating the case as above: The question which the witness, W. I. Myrick, was allowed to answer was incompetent, *642
and should have been excluded. Its admission was clearly prejudicial, and, considering the other testimony in the case, it doubtless controlled the jury in rendering the verdict for the defendant. The witness, S. T. Brown, mentioned in the question and answer, had no authority, express or implied, to surrender possession of the old building to the defendant, or to any one under their direction, nor was any declaration made by him to Myrick, as to what the plaintiff had done about that building, and to the effect that it had been surrendered to the defendants and belonged to them, admissible against the plaintiffs, who were his principal. He had no real or apparent authority to give up his principal's property, so far as this record shows, and certainly none to declare what the principal had done in the past respecting it. His duty was nothing more than that of a local passenger and freight agent, and nothing is disclosed to show, nor has it been submitted to the jury and found, that it was more than this. Bank v. Hay,
There is evidence that the defendant had freight in the old building for shipment at the time this action was commenced, and that it was used for the storage of heavy and overflow freight in connection with the new building, which was on the railroad premises not far away. But, however, the fact may be as to the authority of the agent to surrender the property, his declaration to Myrick, if made, was incompetent to prove it. We have seen that he cannot enlarge his authority by his own declarations, and this Court has recently stated that "the authorities in this State are all to the effect that declarations of an agent made after the event, and as mere narrative of a past occurrence, are not competent against the principal."Johnson v. Ins. Co.,
The error in admitting this evidence, without other proof extending the authority of the agent beyond its implied or apparent limitation, entitles the plaintiffs to another trial, and it will be so certified.
New trial.
Cited: Cardwell v. Garrison,
(600)
