The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-02-17

| broader construction would seem to be-
| a presumption to vest in the N. G. Rail
| read Company not only an easmeGt to
| terminate when, the right of way ceased
| to be used, but right to use that cas-
| ment or right OF way indefinitely. The
section provides cit shall be presumed
that after two years the spase of 100 feet
on each side Of the center fhe said road
| has been granted to the said company
| by the owners thereof and the said COM
| pany shall have good right and title
| thereto" But conceding this was a mere
| grant by operation of the statute of a
right of way as long as it shall be used
by the railroad company as prescribed
and no longer, no one could avail them
selves of revision except the original
| owner or owners. 1t is contended that
the deed from the N. G. Railroad Com
pany to the d. & N. Railroad CD is an
abandonment of this right of way by the
n. c. r. r. Co. and this seems to be the
only evidence CT an intention of an act
on the part of this corporation since the
| judgment of the State court in 1891, which
affects this right of way. This conten-
| ton presents some interesting questions
Of law for which high authority is cited
1 "
| Mfg Ry. Co. is F. r. ISL, but that was
| q suit by the owner of the fee. 1t was
under the laws of Ohio for land con-
demned for park purposes and it was held
| that this was a limited easement and on
| the abandonment Of such easment the
| land reverts to the owner from whom it
was granted or his successor in title and
the gst of the opinion is that on the con-
i Co,
read company across the park it was
imposing upon the fee an additional cas-
ment or burden for which the owner, and
not a third party. is entitled to compen-
saton. The authorities sustaining this
position are ample, but the decision is
not applicable to the cause at bar. If
the owners of the fee or their successors
in title We're making a claim it would
present an entirely different question
from that here involved
Here the city of Durham is attempting
TO stand in the shoes of the original own
ers of their successors in title, without
evidence Of a right to do so, refusing or
neglecting to avail itself of ample pro
visions of law for condemnation proceed
ings and attempting to make permanent
as against the N. c. r. r. Co. by suit
what it held by dedication, under the
judgment Of the State courts. by its
lessee of the owner of the right Of way,
against whom the State court held it had
no right of possession. The court is
urged to decide whether the lease of 1895
was a new lease or an extension OF the
lease of 1871. This is not essential and
can have no bearing in the determination
o. this controversy in this suit. The COM
plant asked for an injunction against
threatened "trespass" after the termina-
ton of the lease of 1871. to-wt 1901.
Whether this lease, the thirty year lease
of 1871, was extended by the lease of
1895 or whether it terminated on the exc.
cution of that lease can make no differ
ence The rights acquired by third par
ties under the r. & d. r. r. lessee
would terminate with the end of that
lease and that lease has certainly now
terminated by limitation. The Southern
Railway Company is in possession of the
property of the n c. r. r. together with
all it's rights and franchises under the
lease of 1895 and by no other authority
The six years from September 18th, 1895,
to September 18th, 1901, whether an eX-
tension of the old lease or a new leace
would not effect rights acquired by third
parties under the former lease; but for
all purposes the lease of 1871 is now dead
and the +. & d. r. r. Co. eliminated;
rights acquired under it terminated and
new rights acquired. SO whatever dedi-
cation was made by the r. & ID. r. r.
Co terminated with the lease, whether
that was in 1895 or 1901. The N. C. r. r
Co. at one or the other of the dates (and,
it can make no difference) was revested
with whatever title or claim or right it
had in and to the property on the termi
nation OF the lease. The claims of the
city of Durham being as has been seen
under dedication by the r. & D. r. r.
Co and the injunction issued in the
Chatham county suit it was limited pos
session and in no way affected the rights
OF this corporation the N. c. r. r. Co
No statute of limitations would run dur
ing this period nor would a plea of the
statute be available; the possession was
not adverse but by virtue of the injunc-
ton and said dedication. and section 80
OF the Code of North Carolina, provides:
"No railroad. plank road, turnpike or
canal company, shall be barred of. or
presumed to have conveyed, any real es-
tate. right of way, easement, leasehold,
have been condemned, or otherwise OBJ
tanned for its use, as a right of way, de-
pot, station house or place of landing.
by any statute of limitation or by occu-
patton of the same by any person what
ever"
Discussing this section the Supreme
Court of North Carolina, through its
Chief Justice, has said in Railroad Com
pany VS.. McGaskill, 81 n. c., at page
754, the statute does not require the oc-
cupation and direct use of every foot
of the condemned area, for building,
embankments and the like. but pre-
serves the property in the company, as
long as the road runs over the land and
is operated ty the company. A permits
sive use of it BY another, when no pres
ent inconvenienceTesults to the company
is not surrender of rights of properly.
and, indeed, to eYpeI IN occupant under