Peacock v. Atlantic Coast Line Railroad

165 S.E. 357 | N.C. | 1932

From judgment dismissing this action as of nonsuit, the plaintiff appealed to the Supreme Court. The evidence offered by the plaintiff at the trial of this action tends to show that the land described in the complaint was conveyed to plaintiff by a deed containing the following language:

"Excepting from the operation of this deed all rights of the Atlantic Coast Line Railroad in and to the southern portion of said property."

Plaintiff offered no evidence tending to show the nature, character or extent of the rights of the defendant, Atlantic Coast Line Railroad Company in and to the land in controversy, or that the defendants were claiming under the exception in his deed.

The principle that the burden of proof is on one claiming under an exception in a deed or grant to show that his claim comes within the exception (Laffoon v. Kerner, 138 N.C. 281, 50 S.E. 654), is not applicable in the instant case, for the reason that it does not appear that the defendants are claiming under the exception. The burden was upon the plaintiff and not upon the defendants to offer evidence tending to show that the possession of the defendants was not within their rights. In the absence of such evidence, there was no error in the judgment dismissing the action as of nonsuit. The judgment is

Affirmed.