{ "id": 8526834, "name": "MARVIN JESSE HARRIS, Plaintiff v. SOUTHERN RAILWAY COMPANY, a Virginia Corporation, Defendant", "name_abbreviation": "Harris v. Southern Railway Co.", "decision_date": "1990-10-02", "docket_number": "No. 902SC85", "first_page": "373", "last_page": "379", "citations": [ { "type": "official", "cite": "100 N.C. App. 373" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "84 S.E. 808", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "opinion_index": 0 }, { "cite": "168 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661229 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nc/168/0523-01" ] }, { "cite": "51 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167643 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0695-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-224", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1989, "opinion_index": 0 }, { "cite": "342 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4698252 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0548-01" ] }, { "cite": "335 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524717 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0627-01" ] }, { "cite": "10 S.E. 917", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "opinion_index": 0 }, { "cite": "105 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652437 ], "year": 1890, "opinion_index": 0, "case_paths": [ "/nc/105/0170-01" ] }, { "cite": "53 S.E. 137", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1906, "opinion_index": 0 }, { "cite": "140 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652114 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/nc/140/0391-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-69", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62-226", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1989, "opinion_index": 0 }, { "cite": "256 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573491 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0618-01" ] }, { "cite": "194 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "783", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "282 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568976 ], "year": 1973, "pin_cites": [ { "page": "712", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0676-01" ] }, { "cite": "351 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740198, 4733319, 4733387, 4732532, 4737276 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0695-02", "/nc/318/0695-05", "/nc/318/0695-01", "/nc/318/0695-03", "/nc/318/0695-04" ] }, { "cite": "346 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "82 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358573 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/82/0224-01" ] } ], "analysis": { "cardinality": 610, "char_count": 13764, "ocr_confidence": 0.753, "pagerank": { "raw": 1.0887609035471442e-07, "percentile": 0.5651024441965535 }, "sha256": "53457052630c2babee2acd1c3de1aa7e8d62ced9b2d90e6e3c192b0eaa1ad1bd", "simhash": "1:6365b12e2230d142", "word_count": 2248 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and DUNCAN concur." ], "parties": [ "MARVIN JESSE HARRIS, Plaintiff v. SOUTHERN RAILWAY COMPANY, a Virginia Corporation, Defendant" ], "opinions": [ { "text": "ORR, Judge.\nThe sole issue on appeal is whether the trial court erred in requiring defendant to construct and maintain a new railroad crossing on plaintiff\u2019s land at the location requested by plaintiff. For the following reasons, we hold that the trial court erred.\nThe following facts are pertinent to this action. In 1983, plaintiff acquired by fee simple a parcel of land containing 116.65 acres, subject to defendant\u2019s easement. The property includes two tracts of land: the Wolfenden and Gurganus tracts. Defendant owns a strip of land in fee simple which divides the Gurganus tract. In addition, defendant owns an easement for a right-of-way in the Wolfenden tract. Defendant has been using its property and easement for railroad purposes continuously for over 90 years.\nThe eastern portion of plaintiff\u2019s property borders and fronts U.S. Highway 17. The western portion of plaintiff\u2019s property is separated from the eastern portion by defendant\u2019s railroad easement. Prior to this action, plaintiff used the western portion for agricultural purposes and the eastern portion for residential development.\nThe sole access from the eastern portion to the western portion has been by crossing defendant\u2019s easement and railroad tracks using an existing railroad crossing, approximately 16 feet wide, located approximately 549 feet north of Maple Branch. Plaintiff has used this crossing since 1983. There is evidence of another crossing on the Wolfenden tract, but this crossing has not been in use for several decades.\nIn June 1987, plaintiff requested defendant to upgrade and relocate the crossing. Defendant refused unless plaintiff would abandon the existing crossing, bear the cost of construction, agree to indemnify defendant and provide liability insurance for defendant of $2,000,000.00. Plaintiff agreed to pay reasonable costs of construction and abandon the existing crossing, but refused to indemnify or insure defendant, and brought this action to obtain adequate access to the western portion of his property.\nDuring the pendency of this action, plaintiff began developing the western portion of his property for residential purposes. The only access to the eastern portion of the property from the western portion is the existing crossing.\nAt trial, the trial court heard the arguments of the parties, reviewed the evidence and conducted a view of the crossing and property involved, and made findings of fact and conclusions of law accordingly. In its judgment, the trial court ordered defendant to construct and maintain a crossing at the location requested by plaintiff. Defendant argues that the evidence does not support the findings of fact and conclusions of law that defendant must construct and maintain a crossing at the location requested by plaintiff.\nThe question of the sufficiency of the evidence to support the trial court\u2019s findings of fact may be raised on appeal, and the appellate courts are bound by such findings so long as there is some evidence to support the findings even when there is evidence to support findings to the contrary. Lyerly v. Malpass, 82 N.C. App. 224, 346 S.E.2d 254 (1986), disc. review denied, 318 N.C. 695, 351 S.E.2d 748 (1987). However, when the trial court\u2019s conclusions of law involve questions of law, the appellate courts may review these on appeal. Davison v. Duke University, 282 N.C. 676, 712, 194 S.E.2d 761, 783 (1973) (citation omitted); Leatherman v. Leatherman, 297 N.C. 618, 256 S.E.2d 793 (1979).\nThe trial court made the following findings of fact and conclusions of law pertinent to this appeal:\nFindings of Fact\n9. At all times pertinent to this action access to that portion of Plaintiffs lands on the western side of Defendant\u2019s railway has been by an existing crossing sixteen feet wide over the railway lines 549.1 feet North of Maple Branch.\n10. There is no written instrument establishing this crossing or setting forth the rights and duties of the parties with respect to it.\n12. Prior to the filing of this lawsuit, the existing crossing was used for access to the westerly portion of Plaintiffs land. Subsequent to the filing of this lawsuit, without the consent of Defendant, vehicles, including automobiles or passenger vehicles of the persons now living on the westerly portion of Plaintiffs lands have used the existing crossing for access to the westerly portion of Plaintiffs lands.\n15. On June 2, 1987, . . . , the Plaintiff requested that the crossing be relocated 304 feet to the north of its present location.\n16. A map produced by Defendant at trial showed that there had been a crossing near the location of the proposed crossing at some time prior to 1915.\n23. The grade crossings to the north and south of the Plaintiffs property are designated only by white \u201cX\u201d shaped wooden signs without lights, reflectors or mechanical arms.\n24. The extension of Mary Street over the railroad track into the western parcel of the Plaintiffs property would be safer both to the Defendant and to persons travelling the road if the extension crosses the railroad track at the proposed crossing requested by the Plaintiff instead of turning onto Lynn Avenue then turning across Lot 6 of Block F of the subdivision then crossing at the existing crossing then travelling over the eastern portions of Lots 1, 2 and 3 of Block \u201cJ\u201d to Mary Street extended as is presently being done. Use of the proposed crossing would also make Mary Street more likely to be accepted by the State into the public road system if in the future the other improvements required under the N.C. State Subdivision Manual are made.\n25. Almost all of the lots in the eastern portion of the Plaintiffs property are occupied and it is not possible for the Plaintiff to redesign Mary Street in order to safely use the existing crossing.\n26. The existing crossing as presently constructed is not adequate for the safe passage of two way automobile traffic without regard to the adequacy of the approaches to it, based upon the \u201cjury view\u201d conducted by the undersigned at the request of both parties.\n27. The construction of a crossing suitable for the passage of two way automobile traffic at the location requested by the Plaintiff would be safe for the travelling public and would not interfere with the normal operation of the Defendant\u2019s railroad.\nConclusions of Law\n6. As the crossing is on the Defendant\u2019s right of way, only the Defendant has the right to enter upon track for the purposes of constructing and maintaining the crossing and the Defendant has a duty to construct and maintain a crossing at the location requested by Plaintiff.\nWe have reviewed the evidence of record and find that it supports the above findings of fact and that the findings, in turn, support the above conclusion of law, which is the subject of this appeal. We now turn to whether this conclusion of law is contrary to existing law in this state. For the following reasons, we hold that it is.\nDefendant argues that plaintiff, as contended in the complaint, is not entitled to the new crossing under the cattle guard statute, N.C. Gen. Stat. \u00a7 62-226 (1989). Nor, according to the defendant, does the cartway statute apply. N.C. Gen. Stat. \u00a7 136-69 (1986). We agree and find these statutes inapplicable to the case before us.\nSection 62-226 applies only to completely enclosed land and contemplates that the statute be utilized only for actions involving cattle guards or crossings. See, e.g., Shepard v. R.R., 140 N.C. 391, 53 S.E. 137 (1906); Hodges v. Railroad, 105 N.C. 170, 10 S.E. 917 (1890). Section 136-69 applies only when a petitioner is seeking access to a public road, watercourse or railroad over the lands of other persons. See Campbell v. Connor, 77 N.C. App. 627, 335 S.E.2d 788 (1985), aff'd, 316 N.C. 548, 342 S.E.2d 391 (1986).\nWe have also reviewed N.C. Gen. Stat. \u00a7 62-224 (1989), and find that this statute applies exclusively to established roads and ways. The statute directs a railroad to construct its crossings and tracks \u201cnot to impede the passage or transportation of persons or property along the same.\u201d The statute places enforcement authority of this provision solely with the \u201cgoverning body of the county, city or town, or other public road authority having charge, control or oversight of such roads, streets, or thoroughfares . . . .\u201d N.C. Gen. Stat. \u00a7 62-224 (1989). We find no other statutes which either directly or indirectly grant the trial court authority to direct defendant to build a new crossing at a plaintiff\u2019s request.\nAs a general rule in most jurisdictions, a railroad company cannot be compelled to construct private crossings at its own expense for the benefit of landowners adjacent to the tracks, so long as the railroad held its right-of-way and laid its tracks prior to enactment of a statute (permitting such construction for a private crossing). 65 Am. Jur. 2d Railroads \u00a7 273 (1972). The justification for this rule is that such requirement is an unconstitutional taking of private property for a private use, without compensation. Id.\nFurther, we find no authority for this proposition under any common law theory. Plaintiff argues that under common law, he has the right as the \u201cburdened\u201d party to use his land in any manner, including directing defendant where to build its railroad crossing, so long as this use of the land does not interfere with defendant\u2019s right-of-way.\nPlaintiff is correct that when a person\u2019s land is subject to an easement, he may use the land in any manner and for any purpose which does not interfere with the full and free use of the easement, including railroad easements. See R.R. v. Manufacturing Co., 229 N.C. 695, 51 S.E.2d 301 (1948); J. Webster, Real Estate Law in North Carolina \u00a7 296 (1971). We find no authority, and plaintiff cites no authority, for the proposition that these rights include the right of a private citizen to direct a railroad as to the location of its crossings. Therefore, the trial court had no authority under the common law to direct defendant to move its railroad crossing to the location requested by plaintiff.\nWe note that defendant does have a duty to maintain crossings over existing private or public roads. See Tate v. R.R., 168 N.C. 523, 84 S.E. 808 (1915). It is a well-established rule that a railroad has the duty, even in the absence of a statute, to keep its crossings safe, whether the highway or street was built before or after the railroad. 65 Am. Jur. 2d \u00a7\u00a7 270, 504 (1972).\nIn the case before us, there is evidence that the existing crossing is \u201cnot adequate for the safe passage of two way automobile traffic . . . .\u201d If this is, in fact, the case, plaintiff may bring an action against defendant to repair and upgrade the existing crossing.\nFor the above reasons, we reverse the trial court\u2019s judgment of 16 October 1989.\nReversed.\nJudges COZORT and DUNCAN concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Carter, Archie & Hassell, by Sid Hassell, Jr., for plaintiff-appellee.", "Ward and Smith, P.A., by John A. J. Ward, Donalt J. Eglinton and Cheryl A. Marteney, for defendant-appellant." ], "corrections": "", "head_matter": "MARVIN JESSE HARRIS, Plaintiff v. SOUTHERN RAILWAY COMPANY, a Virginia Corporation, Defendant\nNo. 902SC85\n(Filed 2 October 1990)\nRailways \u00a7 2 (NCI3d)\u2014 action to relocate railroad crossing \u2014 no authority to order\nThe trial court erred by requiring defendant to construct and maintain a railway crossing on plaintiff\u2019s land at the location requested by plaintiff where plaintiff acquired a 116.65-acre parcel of land in 1983; the property was divided into western and eastern portions by defendant\u2019s railroad easement; plaintiff used the western portion for agricultural purposes and the eastern for residential development; the sole access from the eastern to the western portion was by crossing defendant\u2019s easement and railroad tracks using a 16-foot wide railroad crossing; there was another crossing which had not been used for decades; plaintiff requested that defendant upgrade and relocate the crossing in 1987; defendant refused unless plaintiff would abandon the existing crossing, bear the cost of construction, and agree to indemnify defendant and provide liability insurance for $2,000,000; plaintiff refused to indemnify or insure defendant and brought this action to obtain adequate access to his western property; plaintiff began developing the western property for residential purposes during the pendency of this action; and the trial court ordered defendant to construct and maintain the crossing at the location requested by plaintiff. The trial court had no authority under common or statutory law to direct defendant to move its railroad crossing to the location requested by plaintiff; defendant does have a duty to maintain crossings over existing private or public roads and plaintiff may bring an action against defendant to repair and upgrade the crossing. N.C.G.S. \u00a7 62-226, N.C.G.S. \u00a7 136-69, N.C.G.S. \u00a7 62-224.\nAm Jur 2d, Railroads \u00a7\u00a7 91-94, 97.\nAPPEAL by defendant from judgment entered 16 October 1989 by Judge Thomas S. Watts in BEAUFORT County Superior Court. Heard in the Court of Appeals 29 August 1990.\nThis appeal arises from plaintiffs claim filed 25 February 1988, seeking an order requiring defendant to relocate and construct a new railroad crossing on plaintiff\u2019s land. Trial began during the 9 October 1989 civil session in Beaufort County Superior Court. After arguments of counsel, a view of the premises as requested by the parties and consideration of other evidence, the trial court made findings of fact, conclusions of law and entered its order that defendant construct a new railroad crossing at the location requested by plaintiff. The trial court further ordered that plaintiff\u2019s claim for damages be severed and considered at a later term.\nFrom this order, defendant appeals.\nCarter, Archie & Hassell, by Sid Hassell, Jr., for plaintiff-appellee.\nWard and Smith, P.A., by John A. J. Ward, Donalt J. Eglinton and Cheryl A. Marteney, for defendant-appellant." }, "file_name": "0373-01", "first_page_order": 405, "last_page_order": 411 }