The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-02-10

did it have any deed or other paper
writing to the effect that it held two
hundred feet, which it claimed as right
of way. Under section q of it's charter
this section provides that if the rail
road shall run over the lands of a per-
son and the land owner shall not within
two years thereafter bring suit, to re-
cover damages therefor the North Car
DINA Railroad shall be presumed to be
the owner of said strip, 80 long as it
shall use the said strip for the purpose
of said road. and no longer"
That since the former trial Of this case
of the city of Durham against the Rich
mond and Danville Railroad Company,
the parent road, the North Carolina Rail
road, had sold off eighty feet of said
right of way. which covers the locus
in quo to the N. c. Railroad Com
rany, that such act of selling was aban-
donment and a REIMBURSEMENT of all
right of the said railroad to the land
which was attempted to be conveyed, and
that such deed was indisputable evidence
amounting to an estopple against the
grantor in the deed, and that the said
railroad had leased all right to eighty
feet attempted to be conveyed when the
city of Durham was in possession of the
said street, and had paved it, lighted
and graded it as a street, and that the
Southern Railway entering into the
North Carolina Railway was trespasser
as to the said strip, and that the city
was entitled to claim and hold the same
for street.
Cases from 43rd Ohio State Reports
and also from lis Federal Reports were
cited which are directly in point, and
it was there held when an additional
servitude was attempted to be put upon
the strip Of land the Railroad Company
thereby leased its right to the same.
As between the city and the Southern
Railway the company is q mere trespaS-
ser, and the city is entitled to hold the
street. AS to whether the parties who
owned this strip of land when the North
Carolina Railroad first passed through
Durham were entitled to claim the same
on the ground that the same had re-
verified to them is a question that might
arise later, but IS between the city Of
Durham in possession of the street and
the Southern Railway, who are mere
trcspassers, there could be no question
as to the right of the former.
The second argument presented
was that in August. 1895 when
the North Carolina Railroad Com
rany made contract for q
ninety-nine year lease of the Southern,
such contract was but renewal and
modification of the thirty year lease, and
that the Southern stood in the shoes Of
the Richmond and Danville Railroad
Company when the court in Chatham, in
1901, decided that the Richmond and
Danville Railroad Company had no in
terest whatever in said strip, and that
the Southern now occupied the shoes OF
the old Richmond and Danville Railroad
Company That when it accepted the
terms of the modified and extended lease
it took the same, not only with the benc-
fits, but also with its burdens, and that
enc of such burdens was the right of
the city of Durham to have whole claim
ard use OF Peabody street.
1t was strongly urged when Colonel
Andrews, first vice. president of the
Southern Railway in the suit which his
read brought against Governor Russell
to enjoin the State from interfering
with the ninety year lease, stated
under oath that no new lease was made
but that the ninety-nine year lease was
"a modification and extension of the
thirty year lease" Also that Judge
Simonton in granting his final decree i'll
that case passed the same largely upon
the fact that the ninety year lease
was "a modification and extension of the
thirty year lease"
1t was insisted that the Southern Rail
way had won its suit against Governor
Russell by this contention, and that the
same amounted TO an estopple in pals
against the Southern, and was the in
depreciation which the parties thus placed
upon the ninety nine year lease when
our North Carolina courts had held II.
1901 that the Richmond and Danville
Railroad had no interest in said street
as lease, and that the Southern had
no more interest in the street under the
modified and extended Lease than the
Richmond and Danville did.
1t was confidently contended that in
no other aspect of this case the South
err Railroad could claim or hold Pea
body street, and that it would not now
lie permitted to apply hot and cold in
tho same trensac t!ons,
Major Price, following Judge Winston,
commended that the right Of way when
the city of Durham claims nthe prop
erty in question terminated with the
lease made by the North Carolina Rail-
road Company to the Richmond and
panville Railroad Company. That the
city OF Durham could not have anything
more than the Richmond and Danvills
road had, under the lease made TO it By
the North Carolina Railroad Compan'
and therefore the Richmond and DAN
vile could not dedicate to the city OF
Durham any greater right than it had
itself, which terminated in 1901, with
the lease.
The North Carolina Railroad Company
is only trying to get, said he, possession
of its right of way in accordance with
the findings of the juries when the eases
were tried in Chatham county few days
ago.