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

SAID part was finished, he, she or they
shall be forever barred from recover
ing said land or having any assessment
or compensation thereof: Provided moth
ing herein contained shall affect the
rights or femmeS covert or infants until
TWO years after the removal of their
respective disabilities"
CD In 1871, the North Carolina r. R
| Co., leased for term OF thirty years
! all It's property, franchises, etc. to tine
| Richmond and Danville r. r. Co., which
lease was adjudged by the Supreme Court
OF the State to be valid.
CD In 1889, complainant herein com
menced an action in the Superior court
C'Chatham County Case'D against the
North Carolina r. r. Co., for purpose
similar to the one at bar, in which suit
judgment was rendered in favor of the
n. c. r. r. Co., against the city (the
town of Durham, and in favor of the
city of Durham against the r. & d. r.
r. Co. The gist of this judgment was,
that the r. q d. K. r. Co. had dedicated
the strip of land to the city of Durham
and the public as a street and an in
| junction was entered restraining the r.
& ID. r. r. Co from trespassing thereon
with its tracks or otherwise. The jury
having found the issues submitted In
favor of the North Carolina R. Il. Co.,
Judgment was entered in its favor, that
il go without day and recover it's costs,
etc" This judgment was at fall term of
Durham Superior court, 1891, after the
cause had by appeal been to the State
Supreme Court These judgments were
based upon findings of fact by the jury
upon issues submitted to them that the
town, now the city, of Durham did not
i'll pursuance of the provisions of its
charter condemn for use as a street
the strip OF land known as Peabody
street, that the town (nOw city, of Dur
ham and the public had not for twenty
years prior to the beginning Of the ac-
ton June II, 1882, had the exclusive
knowledge and acquiescence of defend
ants (the North Carolina and r. 4 d.
r. r. Companies). That the r. q d.
r. r. Co. had, but the North Carolina
Railroad Co. had not dedicated to the
plaintiff, the town (now the city, OF
Durham and the public the land de-
scrbed in the complaint for the pur-
poses of street. That the r. 81 d. R.
R. Co., was after the commencement
OF the action unlawfully invading the
possession of the plaintiff, the town (now
city, of Durham.
81 Pending this suit the o. & c. r.
r. Co commenced proceedings of con-
domination under the provisions of The
Code against the r. & d. and n. c. r.
r. Co. and while the injunction of the
State court was in force restraining the
r. & d. r. K. Co. from Irespass1ng, etc,
pending these proceedings others Of like
import were commenced by another rail
road, (the d. & NJ. and by action of the
municipal officers of the city of Durham
permission was granted for it, the d. q
n. r. r. Co., to lay and construct its
tracks on the locus in quo, Peabody
street, from RoXboro 10 Cigarette street,
which tracks were laid, and to obtain a
right-of-way on Peabody street over the
right-of-way OF these roads, one as
lessor and the other as lessee; on the
29th CT March, 1890, the n. c. R. r. Co,
for a consideration of $1,000 executed a
deed he o. & C. r. r. Co. for the
right-Oi way sought to be condemned
ard the R. & D. R. K. Co. for q consider
alton of So executed deed of similar
import
"a Afterwards the O. & C. R. r, was
sold with all it's franchises, etc, under |
& decree OF court and purchased by the
Southern R. R. Co., which sale was duly |
confirmed.
60 In 1895, the n. C. +. r. Company
leased for a term of ninety-nin years
all its property, franchises etc, to the
Southern Ry Co., incorporated and Or
eaniZed under the laws of Virginia,
which had previously acquired the rights,
etc, under the lease to the R. & D. r. r.
Co. QS7D. This lease 1S95) in it's terms
provides that the lease of 1871 shall
terminate at Il twelve o'clock at mid
night on September 11th 1895, but it has
been held this lease of 1895, was an
extension and renewal OF the lease of
1871.
The statute law of North Carolina is
ample for the present purposes of in
voking the exercises of eminent domain
in the condemnation Of land for puOtic
streets by municipal authorities. There
is not only no evidence of such proceed
ings ever having been taken by the COM
plainant but it is admitted in the argu-
ment that no such proceeding have ever
been instituted 1t appears by the judg
ment of the State courts, 1891, that the
city of Durham at that time was in pos
session of the locus in quo by dedica-
&; D. p r. and under no other claim.
This was a judgment by a court of COM
petent jurisdiction which judgment is
binding not only on the parties to the
suit, but on this court. The judgment |
provided that the city of Durham had
no claim or possession Of the locus in
quo as against the n. c. Railroad Com |
pany. The consideration of the case must |
therefore start from this point and unless |
the N c. Railroad Company has done |
SEINE act since this judgment was entered |
the city has no right to possession as
against this corporation.
An examination of section 90 Of the |
charter above cited does not justify the |
narrow construction contended for by |
counsel. While this court is not called |
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