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  "name": "CASWELL LEE SUMMERLIN, JR., Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant",
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    "judges": [
      "Judges WYNN and LEVINSON concur."
    ],
    "parties": [
      "CASWELL LEE SUMMERLIN, JR., Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nCaswell Lee Summerlin, Jr. (\u201cplaintiff\u2019) seeks to compel Norfolk Southern Railroad Company (\u201cdefendant\u201d) to construct and maintain a grade crossing across defendant\u2019s railroad on plaintiff\u2019s land. The trial court granted defendant\u2019s motion for summary judgment. We affirm.\nI. Background\nIn 1906, the Raleigh and Pamlico Sound Railroad Company conveyed to defendant all rights and lines of railroad, including existing lines and those under construction, extending from Raleigh and connecting Wake, Johnston, Nash, Wilson, Greene, Pitt, Craven, and Beaufort Counties.\nIn 1994, Nettie Horrell conveyed a tract of land (\u201cSummerlin Tract\u201d) by a non-warranty deed to Southland Enterprises of Eastern North Carolina, Inc. (\u201cSouthland\u201d). Plaintiff was Southland\u2019s president and executed a general warranty deed in that capacity granting him individually the Summerlin Tract in 1994.\nAll deeds in plaintiff\u2019s chain of title gave notice that defendant owned a 100-foot right-of-way, over and through the Summerlin Tract, splitting the tract into two parcels. The southeastern portion of the Summerlin Tract abuts U.S. Highway 17 North. The northwestern portion does not touch any public road or highway. At the time of conveyance to plaintiff, no existing crossing or private road connected the eastern and western portions of the Summerlin Tract. On 11 April 2001, defendant denied plaintiffs request for a new private grade crossing and suggested plaintiff gain ingress and egress from adjacent property owners. Weyerhaeuser Company (\u201cWeyerhaeuser\u201d) owned a gated, private road that adjoined the northwestern portion of plaintiffs property. On 26 June 2002, Weyerhaeuser granted plaintiff a limited, non-transferable, permissive use license to utilize the road for access.\nPlaintiff filed suit to obtain a private grade crossing over defendant\u2019s right-of-way and railroad lines on the Summerlin Tract to connect the tracts and provide him with direct access to the western portion of the property. Defendant moved for summary judgment on 2 July 2002 and attached an affidavit which states in part, \u201c[s]aid tract claimed by plaintiff is not fenced nor enclosed.\u201d The trial court granted defendant\u2019s motion. Plaintiff appealed.\nII. Issue\nThe sole issue is whether the trial court erred by granting summary judgment and concluding as a matter of law that defendant was not required to provide plaintiff a private grade crossing across its right-of-way and railroad lines.\nIII. N.C. Gen. Stat.. \u00a7 136-194\n\u201cAn entry of summary judgment by the trial court is fully reviewable by this Court.\u201d Roten v. Critcher, 135 N.C. App. 469, 472, 521 S.E.2d 140, 143 (1999). Rule 56 of the North Carolina Rules of Civil Procedure states that summary judgment will be granted \u201c[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001). Plaintiff contends that N.C. Gen. Stat. \u00a7 136-194 requires defendant to construct and maintain a private grade crossing connecting the eastern and western portions of the Summerlin Tract as a matter of law.\nN.C. Gen. Stat. \u00a7 136-194 (2001), entitled \u201cCattle guards and private crossings,\u201d states that \u201c[e]very company owning, operating or constructing any railroad passing through and over the enclosed land of any person shall, at its own expense ... make and keep in constant repair crossings to any private road thereupon.\u201d This statute was originally enacted in 1883, prior to defendant\u2019s acquisition of the railroad right-of-way. 1883 N.C. Sess. Laws c. 394, \u00a7 1-2 (1883). Generally, \u201ca railroad company cannot be compelled to construct private crossings at its own expense for the benefit of landowners adjacent to the tracts, so long as the railroad held its right-of-way and laid its tracks prior to enactment of a statute.\u201d Harris v. Southern Railway Co., 100 N.C. App. 373, 378, 396 S.E.2d 623, 626 (1990). Our Court has held that N.C. Gen. Stat. \u00a7 136-194, previously codified as N.C. Gen. Stat. \u00a7 62-226 (1990), \u201capplies only to completely enclosed land and contemplates that the statute be utilized only for actions involving cattle guards or crossings.\u201d Id. at 377, 396 S.E.2d at 625.\nNorth Carolina courts have refused to grant private individuals the right to direct a railroad where to locate its crossings. Id. at 378, 396 S.E.2d at 626. Our Supreme Court has recognized that a railroad does not have the right to obstruct an existing road. Tate v. R.R., 168 N.C. 523, 525, 84 S.E 808, 809 (1915). Defendant holds a right-of-way across plaintiffs property and has an affirmative duty to maintain its railroad. See Hartman v. Walkertown Shopping Center, 113 N.C. App. 632, 637, 439 S.E.2d 787, 791 (1994).\nWhen the Summerlin Tract was conveyed to plaintiff, he took the property with record notice that no road or crossing existed to connect and provide access between the divided portions of the property. Plaintiffs affidavit asserted that \u201cmy property is completely enclosed by the lands of others . . . .\u201d Evidence before the trial court showed plaintiffs land is \u201cnot fenced nor enclosed.\u201d See Shepard v. R.R., 140 N.C. 391, 53 S.E. 137 (1906).\nPlaintiff used Weyerhaeuser\u2019s private road on an adjoining tract to gain access to the western portion of his property. When Weyerhaeuser gated this road, plaintiff was offered a key to gain access to the private road. He now seeks to compel defendant to provide a crossing for plaintiff\u2019s sole benefit at no cost to plaintiff. Defendant does not have a duty to construct or allow a private crossing for plaintiff\u2019s sole access to the western portion of the Summerlin Tract. This assignment of error is overruled.\nIV. Conclusion\nPlaintiff\u2019s property is not enclosed as required by N.C. Gen. Stat. \u00a7 136-194. Defendant is not legally required to construct, finance, or allow a private grade crossing to connect portions of the Summerlin Tract divided by defendant\u2019s right-of-way. Harris, 100 N.C. App. at 378, 396 S.E.2d at 626. The trial court properly granted defendant\u2019s motion for summary judgment.\nAffirmed.\nJudges WYNN and LEVINSON concur.",
        "type": "majority",
        "author": "TYSON, Judge."
      }
    ],
    "attorneys": [
      "Carter, Archie, Hassell & Singleton, L.L.P., by Ranee Singleton, for plaintiff-appellant.",
      "Rodman, Holscher, Francisco & Peck, P.A., by R. Brantley Peck, Jr., for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "CASWELL LEE SUMMERLIN, JR., Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant\nNo. COA02-1679\n(Filed 4 November 2003)\nRailroads\u2014 grade crossing \u2014 summary judgment\nThe trial court did not err by granting defendant railroad company\u2019s motion for summary judgment and concluding as a matter of law that defendant was not required to provide plaintiff a private grade crossing across its right-of-way and railroad lines which divide plaintiffs property, because plaintiff\u2019s property is not enclosed as required by N.C.G.S. \u00a7 136-194.\nAppeal by plaintiff from judgment entered 1 August 2002 by Judge William C. Griffin, Jr., in Beaufort County Superior Court. Heard in the Court of Appeals 7 October 2003.\nCarter, Archie, Hassell & Singleton, L.L.P., by Ranee Singleton, for plaintiff-appellant.\nRodman, Holscher, Francisco & Peck, P.A., by R. Brantley Peck, Jr., for defendant-appellee."
  },
  "file_name": "0170-01",
  "first_page_order": 200,
  "last_page_order": 203
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