NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff, v. WAYNE SMITH,
Defendant argues on appeal that the trial court erred in
granting plaintiff's motion for summary judgment. [T]he standard
of review on appeal from summary judgment is whether there is any
genuine issue of material fact and whether the moving party is
entitled to a judgment as a matter of law. Bruce-Terminex Co. v.
Zurich Ins. Co.
, 130 N.C. App. 729, 733, 504 S.E.2d 574, 577(1998). The burden is upon the moving party to show that no
genuine issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. Lowe v. Bradford
N.C. 366, 369-70, 289 S.E.2d 363, 366 (1982). If the moving party
satisfies its burden, the burden shifts to the non-movant to set
forth specific facts showing there exists a triable issue of fact.
 Two principal issues are presented in this appeal: (1)
whether the trial court erred in concluding that plaintiff has a
right-of-way easement across defendant's property one hundred feet
on each side of the center line of the railroad's track; and (2)
whether the easement's servient estate can be restrained or
enjoined for the benefit of the easement owner.
Section twenty-nine of An Act to Incorporate the Western
North Carolina Railroad Company (the Act), Private Laws of North
Carolina 1854-'55, Chapter 228,
§ 29, provided the Western North
Carolina Railroad Company (WNC), plaintiff's predecessor in
with three methods of acquiring property for building its
road. The first method was by purchase of land in fee simple from
an owner. The second method was through State condemnation of the
land by eminent domain and providing the land in fee simple to the
railroad. The third method was by statutory presumption, which
required the railroad to build a track in the absence of a contractwith the landowner and then allowed the landowner to call for a
land assessment to be paid within two years from the completion of
the track. If the landowner did not apply for compensation in that
period, the statutory presumption provided the railroad with a
right-of-way one hundred feet to either side of the tracks as long
as it continued to be used for a railroad.
The first two methods
are inapplicable in this case.
The chain of title for defendant's
property discloses no record of WNC ownership of the land in fee
simple, nor is there any record of State condemnation of
To establish its right-of-way by statutory presumption,
plaintiff had the burden of showing, by a preponderance of the
evidence, that there had been no contract between its predecessor
and defendant's predecessor in title, and that the landowner at the
time had not applied for compensation within two years after the
track was built. Keziah v. R.R.
, 272 N.C. 299, 307, 158 S.E.2d
539, 545 (1968).
At trial, plaintiff presented evidence that the
WNC railroad through Jackson County was completed between 1882 and
1884, that there was no
record of a contract with the landowner
during that time, and that there was no application by the
landowner for compensation within the two years. Defendant did not
refute this evidence.
Instead, defendant argues that the Act did not provide for the
extension of the WNC railroad through Jackson County, where his
land is located, therefore plaintiff cannot rely on the Act's
methods for acquiring property in Jackson County. This argument is
without merit. The Act originally authorized the railroad to
construct a railway to a point beyond the French Broad River.
Private Laws of North Carolina 1854-'55, Chapter 228,
§ 29; see
Railroad v. Rollins
, 82 N.C. 523, 524 (1880). The legislature
subsequently passed An Act to Amend an Act Entitled an Act to
Incorporate the Western North-Carolina Railroad Company, Passed at
the Session of 1854-'55, and also an Act Amendatory Thereof Passed
at the Session of 1856-'57, Private Laws of North Carolina 1858-
§ 3, providing for survey work to the Tennessee
state line which would run through Jackson County. Successive
amendments such as An Act to Aid in the Completion of the Western
Division of the Western North Carolina Railroad, Public Laws of
North Carolina 1871-'72,
Chapter 150, tend to show survey approval
by the legislature.
Defendant also suggests that the lapse of the WNC Railroad's
corporate existence necessarily eliminated the easement gained by
statutory presumption. This position, too, is untenable.
Easements run with the land and are not personal to the landowner.
Brown v. Weaver-Rogers Assoc.
, 131 N.C. App. 120, 123, 505 S.E.2d322, 324 (1998), disc. rev. denied
, 350 N.C. 92, 532 S.E.2d 523
(1999). Plaintiff, as WNC's successor in interest, properly
succeeded to all the rights that WNC had in the right-of-way on
Defendant further argues the trial court erred in finding the
scope of the right-of-way measures one hundred feet on either side
of the track. In addition to the statutory presumption of one
hundred feet, there is record evidence recognizing that width. In
purchased an easement from a predecessor in title
to defendant's land. The deed granted plaintiff
an easement to lay
a pipeline across unencumbered property outside the right-of-way.
The owner described the location of the new easement by relation to
plaintiff's right-of-way which is 100 feet in width on either side
of the center line of its main track. The physical presence of
the railroad track gave defendant notice that a right-of-way
existed, and the 1924 deed recorded with the county registrar gave
additional notice of the right-of-way's width.
The trial court correctly ruled that plaintiff is entitled to
a right-of-way of one hundred feet on each side of the center of
the track to be occupied and used for railroad purposes. There is
a presumed statutory grant when there are no records of purchase of
the land by WNC, a taking by eminent domain, or an action by the
landowner for compensation within two years of track completion.
R.R. v. Manufacturing Co.
, 229 N.C. 695, 699, 51 S.E.2d 301, 305
Subsequent acts of the legislature to complete the
railroad line running across defendant's land verify legislative
approval of the track surveys.
We find no genuine issue of
material fact regarding the existence of plaintiff's right-of-way
one hundred feet from either side of the track's centerline
is no genuine issue as to the existence and extent of plaintiff's
right-of-way, and the trial court properly granted summary judgment
in favor of plaintiff as to that issue.
The existence and extent of the right-of-way having been
established, the issue remains as to whether defendant's use of the
servient estate may be restrained or enjoined for the benefit of
the easement owner. Areas of a right-of-way not required for
railroad purposes may be used by the servient owner in manners not
inconsistent with the right-of-way. Bivens v. R.R.,
247 N.C. 711,
716, 102 S.E.2d 128, 132-133 (1958); Tighe v. R.R.
, 176 N.C. 239,
244, 97 S.E. 164, 166 (1918); R.R. v. Sturgeon
, 120 N.C. 225, 227-
28, 26 S.E. 779, 780 (1897).
However, the owner's use is subject
to the railroad's easement.
[F]urther appropriation and use by
[the railroad] of the right of way for necessary railroad business
may not be destroyed or impaired by reason of the occupation of it
by the owner or any other person. Keziah
, 272 N.C. at 308, 158
S.E.2d at 546 (citing N.C. Gen. Stat. § 1-44). The railroad mayexpand its use of the right-of-way, to the extent of its statutory
right, for any legitimate purpose as determined by the railroad's
sound business judgment. Manufacturing Co.
at 701, 51 S.E.2d at
Use by the railroad includes managing safety risks on its
right-of-way. A railroad is held accountable for the condition of
the right-of-way, R.R. v. Olive
, 142 N.C. 257, 275, 55 S.E. 263,
therefore a servient landowner may not unilaterally
create risks that interfere with the railroad's maintenance of the
our Supreme Court observed:
It would seem clear that when, as in the case
of a railroad company, a right-of-way is
acquired by any of the statutory methods, or
by grant, for the purpose of enabling it to
perform its duty to the public, such easement
will be protected by injunction. It would be
unreasonable to permit a railroad company to
acquire a right-of-way for the purpose of
constructing its tracks and necessary
buildings and, when it is invaded or its
enjoyment interfered with, confine the company
to an action for damages. In this way the
operation of railroads might be so much
hindered that they would not be able to
discharge their public duties, the primary
object for which they are chartered.
at 264, 55 S.E. at 265. Therefore, injunctive relief is an
appropriate means for preventing servient landowners from creating
risks or other interferences on a railroad's right-of-way. The trial court's permanent injunction preventing defendant
from construction or grading work within twenty-five feet of the
center line is reasonable. As we have noted, a railroad has the
duty, even in the absence of a statute, to keep its crossings safe.
Harris v. Southern Railway Co.
, 100 N.C. App. 373, 378-79, 396
S.E.2d 623, 626 (1990). The close proximity of buildings or
grading work to the tracks may obstruct the view of the automobile
crossing, making it unsafe and interfering with the railroad's duty
to maintain safe crossings.
Similarly, the trial court properly enjoined excavation near
the tracks and use of the water pipe beneath the tracks.
Excavation and unapproved pipe installation may damage the track
bed and create risks to railroad operation. The injunction,
therefore, addresses legitimate risks related to the safe
maintenance of the roadbed, and the management of such risks is
within the sound business judgment of the railroad. Manufacturing
at 701, 51 S.E.2d at 306.
Injunctions may be mandatory as well as preventive. The trial
court ordered defendant to construct a safety fence to separate the
mobile home community from plaintiff's track and to cap the water
lines running underneath the railroad bed. Because defendant's
actions created foreseeable risks to plaintiff's safe operation of
the railroad, these mandatory injunctions were proper to protectthe enjoyment of plaintiff's easement.
See Manufacturing Co.
; R.R. v. R.R.
, 237 N.C. 88, 94, 74 S.E.2d 430, 434
(1953)(stating that [a] mandatory injunction based on sufficient
allegations of wrongful invasion of an apparent right may be issued
to restore the original situation).
The order from which defendant appeals is affirmed.
Judges MCCULLOUGH and ELMORE concur.
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