#### LILLIE H. COIT v. OWENBY-WOFFORD COMPANY et al.

(Filed 30 May, 1914.)

Railroads — Right of Way — Necessary Superstructures — Warehouse —Leases to Patrons — Benefits—Public Duties.

The principles of law which permit a railroad company to judge of the necessity for the use of its right of way for the convenience of the company and in the furtherance of its corporate business, extends for like purposes to the erection of warehouses or superstructures thereon, and it may permit or lease this right to its patrons as such in consideration of benefits to be received from them in the routing of their freight arising from the use of such buildings as stores and warehouses, when not prejudicial to its other patrons or inconsistent with its duties as a public-service corporation.

Appeal by plaintiff from Carter, J., at January Term, 1914, of CHEROKEE.

Civil action to recover possession of a warehouse on the right of way or station grounds of the Louisville and Nashville Railroad, successors of the Atlanta, Knoxville and Northern Railroad Company.

*137On tbe trial it was shown that tbe plaintiff was tbe ultimate owner in fee of tbe land, and that tbe same bad been previously condemned as a right of way of tbe Atlanta, Knoxville and Northern Eailroad and now used and occupied as such by tbe Louisville and Nashville; that tbe former road, while same was under its control, leased a designated portion of tbe right of way or terminal ground for tbe purpose, to J. L. Smathers for a stated rent, who erected thereon a warehouse and used and occupied it for several years, when that firm leased or conveyed their rights-in tbe same to tbe codefendant, tbe Owenby-’Wofford Company, who in turn occupied and used tbe same under tbe terms of tbe lease till tbe building was torn down and removed at some time pending tbe controversy, tbe date of this occurrence not being fixed with exactness by tbe testimony.

Tbe written lease, bearing date in 1900, purported to exact a rental of $12 per annum, ground rent, and contained tbe stipulation, among others' (section 4), as follows:

“In further consideration of said lease, said party of tbe second part binds himself, bis heirs and assigns, to make party of tbe first part bis preferred line for tbe transportation of inbound and outbound merchandise to and from said warehouse during tbe existence of this lease and §o long as party of tbe ■first part affords rates equal with those of the Southern Eailway Company for like service. By preferred line is meant tbe routing of shipments so as to give party of tbe first part tbe preference on all competitive business by tbe longest haul practipable within tbe rates at tbe time in force.”

As to tbe use of tbe property under tbe lease, J. L. Smathers, witness for defendant, testified, among other things: “We were -there in tbe produce business, tan-bark shippers and wholesale grocery business, and used it for receiving and shipping goods. It was built with reference to our .business.” And further: “My contract for tbe erection of this warehouse is. in writing; I turned over my copy of it to my codefendant. We used that warehouse for tbe private business of tbe J. L. Smathers Com.pany; we used it for receiving and shipping freight, for tbe wholesale grocery business; tbe private business of our. corpo*138ration. There was another freight room where the general public was served. There was an agreement for rent at $12 per year to be paid by us to the road. I did not pay' it. As well as T remember, we paid it the first 'year. After that, it occurs to me that the management changed, and possibly it escaped their attention. They never did call on us for it. Owenby-Wofford Company succeeded us 1 March, four years ago. I turned over the contract to Owenby-Wofford Company. We used that building without paying rent for eight years, as I recollect; I might be wrong. I went altogether according -to the lease I had from the A. K. and N. Railway.”

There was further evidence tending to show that a fair rental for the warehouse in question was $40 per month.

At the close of the testimony, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.

M. W. Bell and Dillard & Hill for plaintiff.

J. D. Mallonee, Witherspoon & Witherspoon, and IS. B. Nor-vell for defendant.

Hoke, J.

The decisions of this State are to the effect that, in condemning a right of way, under ordinary proceedings, the railroad acquires an easement in the property, to be held and used as the necessities and well ordered management of the road may require, and that the company authorities are made the judges of the* extent and necessities of this use. R. R. v. McLean, 1 58 N. C., 498; Earnhardt v. R.. R., 157 N. C., 358; R. R. v. Olive, 142 N. C., 273.

The eases further hold' that, to the extent that the land covered by the right of way is not presently required for the purposes of the road, the owner may continue to occupy and use it in a manner not inconsistent with the full and proper enjoyment of the easement. R. R. v. McLean, supra; Lumber Co. v. Hines Bros., 126 N. C., 254; Sturgeon v. R. R., 120 N. C., 225. In the practical application of these recognized principles, here and elsewhere, it is very generally held that, while a railroad company may not use or license the use of its right of way or depot grounds for purposes strictly individual or private, it may erect *139thereon any and all buildings and superstructures reasonably required for the convenience of the company as a corporation and in promotion and furtherance of its corporate business; and what it may do for itself and for like purpose, it may permit or license to its patrons to the extent that it does not hinder or interfere with the proper performance of its duties to the public.

In the well considered and learned brief of defendant’s counsel we were referred to numerous decisions to the effect that railroad companies could not he held for trespass on the rights of the owner in erecting or permitting the erection on its right of way and in furtherance of the company’s business, coal chutes, sheds, elevators, platforms, and conveniences of all kinds affording facilities for receipt and shipment of freight, such as lumber yards, stock yards and pens, storage-houses, etc., and even hotels and boarding-houses Avhen carried on for the accommodation or benefit of passengers and company employees, an instance of which occurs in our own reports in Gudger v. R. R., 116 N. C., 481, and see, also, Anderson v. Interstate Manufacturing Co., Iowa, 132 N. W., 152, reported with an instructive note in 36 L. R. A. (N. S.), at page 512; Gurley v. Minneapolis Elevator Co., 63 Minn., 70; Pierce v. R. R., 141 Mass., 481; Hartford Ins. Co. v. Chicago and Mil. R. R., 175 U. S., 91; Grand Trunk Ry. v. Richardson, 91 U. S., 468; Ill. Central v. Wathen, 17 Ill. App., 580.

In Grand Trunk Ry. v. Richardson, supra, Associate Justice Strong, delivering the opinion, said: “It is not doubted that the defendant might have erected similar structures on the ground on which the plaintiffs’ buildings were placed, if in its judgment the structures were convenient for the receipt and delivery of freight on its road. Such erections would not have been inconsistent with the purposes for which its charter was granted. And if the company might have put up the buildings, why might it not license others to do the same thing for the same object, namely, the increase of its facilities for the receipt and delivery of freight ?” These authorities and the principle which they uphold and illustrate are in full support of his Honor’s judgment awarding a nonsuit, for it 'appears, by correct inter-*140pretatiou of tbe only. testimony relevant to tbe question, tbat, while tbe user of tbe warehouse was restricted to tbe private business of tbe lessees, its chief and controlling purpose was to afford facilities for these lessees, as patrons of tbe road, in tbe storage, receipt and shipment of freight. 1 ’

There is no error, and tbe judgment of nonsuit must be

Affirmed.