#### In the MATTER of ASSESSMENT AGAINST PROPERTY OF SOUTHERN RAILWAY COMPANY FOR PAVING ON RAILROAD STREET, KERNERSVILLE, NORTH CAROLINA.

(Filed 20 March, 1929.)

1. Adverse Possession — Nature and Requisites — Municipal Corporations —Railroads.

An incorporated city or town may obtain title to streets located upon the right of way of a railroad company by long and continuous, open, and adverse use thereof for such purpose, and where the city has so used the land for a long period of time there is a presumption of an original condemnation by the city under its charter or general statute, and just compensation paid therefor, and C. S., 434, relating to the acquisition of railroad rights of way by adverse possession in certain instances, has no application as to the rights of municipalities to acquire the land.

2. Municipal Corporations — Public Improvements — Assessments Therefor — Railroads.

Where a municipality by sufficient adverse use has acquired title to a street within the original grant of right of way to a railroad company, the property along it within the boundary of such street belonging to the railroad company is liable to assessment for paving and street improvements as provided by statute.

3. Estoppel — Equitable Estoppel — Grounds of Estoppel — Municipal Corporations — Public Improvements.

Where an incorporated city or town has for a long period of time occupied a part of a railroad right of way as a city street, and the railroad company has previous notice that the municipality would put permanent improvements upon the street and assess the abutting owners thereon, the railroad company may not wait until after the improvements are made and then successfully resist the payment of the assessment against the property on the ground that the municipality was not the owner of the street, the doctrine of equitable estoppel applying.

4. Trial — Trial by Court Under Agreement — Findings of Fact.

Where the parties to an action agree that the judge pass upon the evidence and find the facts involved, his findings have the same force and effect as the verdict of the jury would have had upon issues submitted.

*757Appeal by defendant, Southern Railway Company, from Lyon, Emergency Judge, at September Term, 1927, of Foksyth.

Affirmed.

The judgment in- the court below is as follows:

“This cause coming regularly on to be heard before me at the civil term of the Superior Court of Forsyth County, beginning 12 September, 1927, and it being agreed by the parties that the court should find the facts, after hearing the evidence, the court finds as a fact:

(1) That the parties to the action have agreed as follows: (a) That the town of Kernersville in the year 1925, ordered certain local improvements to be made on several streets in the town, including Railroad Street, the street in controversy in this action, (b) That the said local improvements were made and assessments duly made against the Southern Railway Company as an abutting property owner on the north side of Railroad Street, (c) That Southern Railway Company duly filed an appeal to the Superior Court of Forsyth County from the assessment for pavement on said Railroad Street, (d) That that part of Railroad Street on which the improvement was made is almost wholly within the right of way of the Southern Railway Company, and within forty-five feet of the center of the roadbed, and the improvement which laid on Railroad Street, one-half of the cost of which the town seeks to assess against Southern Railway Company, is entirely within the right of way of the Southern Railway Company.

(2) TJpon the evidence introduced the court finds as a fact: (a) That on the . day of ., 1868, W. P. Henley and wife, the then owner of the land on which the town of Kernersville is now located, granted to N. W. N. C. R. R. Co. an easement in a strip of land ninety feet in width, which embraces the locus in quo-, for use as a right of way for the operation of a railroad, and for as long as so used; by successive conveyances said easement is now held by Southern Railway Company, (b) That on 19 February, 1877, the governing authorities of the town of Kernersville, by a resolution spread on their records, the following resolution, viz.: ‘19 February, 1877. It was passed by the board that a street on each side of the railroad bed 45 feet from centre, be established, beginning at the Danville crossing and running to the Gates crossing. Continuation of the Railroad Street, 54% feet. Beginning on south side of Main Street at the planking near a chestnut oak tree, running south side of railroad, south 32 deg. east 422 feet to a cedar stake in Cedar Grove; thence south 30 deg. east curving with the railroad to intersect with the Greensboro Street, width of street 54% feet,’ ordered the opening of two streets in the town of Kernersville, one on the north and the other on the south side of the railroad, said street being known as Railroad Street; that the locus in quo- is one of the streets opened after the adoption of said resolution by the authorities of the town of Kerners-*758ville, and since 1877 bas been maintained as a public street of tbe town, and bas been worked by tbe city forces and used by tbe citizens of tbe town continuously, (c) Tbat tbe town of Kernersville ordered tbe making of local improvements, including tbe local improvement of Railroad Street, pursuant to petition duly filed by property owners, and tbat all action taken in connection witb tbe making of said local improvement was regular and in accordance witb law. (d) Tbat in apt time Southern Railway Company filed its notice of appeal from tbe confirmation of tbe assessment, and filed tbe statement of facts upon wbicb it based its appeal, alleging in said statement tbat Railroad Street is not a public street, and tbat no compensation bad been paid Southern Railway Company by tbe town of Kernersville for tbe land covered by tbe street and on wbicb tbe pavement was laid, (e) Tbat Southern Railway Company bad due notice of tbe intention of tbe authorities to improve said Railroad Street by making local improvements thereon prior to tbe commencement of said work, and also bad due notice tbat the authorities of tbe town considered said street a public street, tbe Southern Railway Company made no protest and filed no objection to tbe making of tbe improvement only until after tbe work was done and tbe assessment roll prepared.

Wherefore, tbe court is of tbe opinion: (a) Tbat Railroad Street is a public street of tbe town of Kernersville. (b) Tbat Southern Railway Company, knowing tbat tbe town was making costly improvements on said Railroad Street, in tbe belief tbat said street was a public street, and would levy assessments against tbe Southern Railway Company for tbe cost of said work, offered no objection thereto until after tbe completion of tbe work, and is therefore estopped to deny tbat said street is a public street, (c) Tbat all things bad and done by tbe governing authorities of tbe town in connection witb tbe ordering and making of tbe local improvements was done in accordance witb statutes governing tbe making of local improvements, (d) Tbat Southern Railway Company is liable for tbe assessments levied by tbe town of Kernersville.

Therefore, it is now ordered, adjudged and decreed tbat tbe town of Kernersville have and recover of tbe Southern Railway Company in tbe sum of $1,512.78, witb interest on said sum from 10 March, 1926, until paid. Southern Railway Company will pay tbe cost of this action.”

J. L. Morehead cmd W. H. Murdoch for town of Kernersville.

Manly, Hendren & Womble for Southern Railway Company.

ClaeksON, J.

It will be noted tbat tbe parties to this controversy agreed tbat tbe court below find tbe facts. Certain facts were agreed to and tbe court beard tbe evidence and found tbe facts. Tbe finding of *759facts by tbe court are as binding on tbe litigants as tbe findings by a jury. 38 Cyc., p. 1933 et seq.

Tbe court below found tbe following facts: “Tbat tbe locus in quo is one of tbe streets opened after tbe adoption of said resolution by tbe authorities of tbe town of Kernersville, and since 1877 bas been maintained as a public street of tbe town, and bas been worked by tbe city forces and used by tbe citizens of tbe town continuously.”

It is well settled tbat a municipal corporation cannot exercise tbe power of eminent domain and acquire land for street purposes unless authorized by its charter or under a provision in tbe general law. Provision made for condemnation must be bottomed on just compensation. Lloyd v. Venable, 168 N. C., p. 531.

It is said in Raleigh v. Durfey, 163 N. C., at p. 160: “It is admitted tbat tbe plaintiff bas been in undisputed actual adverse possession under known and visible lines and boundaries of tbe entire land and property for sixty years, occupying tbe same and collecting tbe rents. Upon these facts it would seem to be plain tbat plaintiff bas acquired an absolute title to tbe property. One of tbe methods of acquiring title to land is by adverse possession. Mobley v. Griffin, 104 N. C., 115. We know of no reason or authority by which a municipality is excluded from tbat rule and rendered incompetent to acquire title by tbat method.”

Tbe town of Kernersville bas been in tbe undisputed actual, adverse possession and use of tbe street under known and visible lines and boundaries for nearly half a century. Ordinarily continuous, adverse use for over twenty years is sufficient to give title. As against an individual there would be no question as to tbe rights of tbe town of Kernersville. S. v. Fisher, 117 N. C., 733; Durham, v. Wright, 190 N. C., 568; Weaver v. Pitts, 191 N. C., 747; Grant v. Power Co., ante, 617.

But C. S., 434, is as follows: “No railroad, plank road, turnpike or canal company may be barred of, or presumed to have conveyed, any real estate, right of way, easement, leasehold, or other interest in tbe soil which bas been condemned, or otherwise obtained for its use, as a right of way, depot, stationbouse or place of landing, by any statute of limitation or by occupation of tbe same by any person whatever.” See R. R. v. McCaskill, 94 N. C., 746; Purifoy v. R. R., 108 N. C., 100, 105; Bass v. Navigation Co., 111 N. C., 439; R. R. v. Olive, 142 N. C., 257; Griffith v. R. R., 191 N. C., 84; Wearn v. R. R., 191 N. C., 575; Dowling v. R. R., 194 N. C., 488; Heaton v. Kilpatrick, 195 N. C., 708.

Tbe railroad contends tbat under tbe above statute and tbe decisions of this Court tbat in no legal way did tbe town of Kernersville acquire tbe street in controversy, and tbe statute of limitation does not run against tbe railroad, and also cites Muse v. R. R., 149 N. C., 443. We do not interpret tbe statute and decisions to tbat effect. Where tbe right *760of eminent domain is given to towns, cities and public agencies for public purposes, if tbe contention by the railroad is correct, in many instances the result would be to “bottle up” not only the towns and cities of the State, but the highway systems of the counties and State. The right of eminent domain to condemn property for streets and highways, upon the payment of just compensation, is given in numerous town and city 'charters and the general law. If a railroad refuses to sell its land or right of way, although not needed for railroad purposes, and the public agencies could not condemn, this would tend to destroy progress and public convenience. It is a matter of common knowledge that public streets and highways run over and under railroads and along the side of railroads on and over their rights of way, these streets and highways being often hard-surfaced. Under the right of eminent domain given to towns and cities in their charter and in the general law, and to road-governing bodies, condemnation can be resorted to in reason. Even under certain circumstances a railroad can be compelled to build an underpass for the protection of the public. Durham v. R. R., 185 N. C., 240, 266 U. S., p. 178.

From the record we think there was sufficient evidence for the court below to find that the locus in quo was one of the streets opened after the adoption of the resolution of the town of Kernersville in 1877. It was maintained as a public street of the town and worked by the city forces and used by the citizens of the town adversely and continuously for nearly fifty years — the presumption is that it was regularly condemned and just compensation awarded to the railroad. The fact that the resolution of the board was to the effect that the street be 45 feet from the railroad center and the street is almost wholly within the right of way, and the part assessed is entirely within the right of way, is immaterial.

In Hair v. Downing, 96 N. C., at p. 176, it is said: “Where the terms of a grant are general or indefinite, so that its construction is uncertain and ambiguous, the acts of the parties contemporaneous with the grant, giving a practical construction to it, shall be deemed to be a just exposition of the intent of the parties. Ang. Water Courses, sec. 363, and eases cited in note 1, and among them Jonnison v. Walker, 11 Gray, 426; and Woodcock v. Estey, 43 Verm., 522.” Blankenship v. Dowtin, 191 N. C., at p. 795. To the same effect is Wearn v. R. R., supra, and S. v. Bank, 193 N. C., 524. The present locus in quo has been known as “Railroad Street,” and has been worked by the city forces and used by the citizens of the town continuously and recognized by the railroad as a city street, for nearly a half century. The acts of the parties contemporaneous with the taking possession is evidence that it was regu*761larly condemned and located for street purposes. The interpretation tbe parties put on the transaction will ordinarily be followed.

The street, as we construe the law upon the finding of facts, was properly condemned and abuts on the railroad’s property right of way. In Elliott on Railroads, sec. 786, it is said: “There is a conflict in the adjudicated cases as to whether or not the right of way of a railroad company is subject to local assessment. The question has been discussed in a. great number of instances and different conclusions reached in apparently similar cases. The latest authorities on the subject, however, recognize what we believe to be the true rule, and that is, that where the right of way receives a benefit from the improvements for which the assessment is levied, and there is.no statute exempting the railroad company'' from local assessments in clear and unequivocal terms it is subject to assessment.” Commissioners v. R. R., 133 N. C., at p. 218; Kinston v. R. R., 183 N. C., 14; Gunter v. Sanford, 186 N. C., 452; Town of Mt. Olive v. R. R., 188 N. C., 332; R. R. v. Sanford, 193 N. C., 340; Waxhaw v. R. R., 195 N. C., 550.

In R. R. v. Ahoskie, 192 N. C., p. 258, it is held that under the provisions of the statute, it is necessary that there be an existing street in order for a valid assessment for improvements to be laid on the property of abutting owner. In the present case, “Railroad Street” is an existing street for the reasons stated.

It is found as a fact: “That Southern Railway Company had due notice of the intention of the authorities to improve said Railroad Street by making local improvements thereon, prior to the commencement of said work, and also had due notice that the authorities of the town considered said street a public street, and Southern Railway Company made no protest and filed no objection to the making of the improvement only until after the work was done and the assessment roll prepared.”

This finding is fully sustained by the evidence. The following letter appears in the record: “Southern Railway System, Operating Department, "Winston-Salem, N. C., 18 April, 1925. Mr. S. F. Vance, Mayor, Town of Kernersville, Kernersville, N. C. Dear Sir: I understand the town of Kernersville proposes to have (pave) Railroad Street from Main Street to Cherry Street, a distance of 350 feet, and 20 feet wide. Won’t you kindly advise how long this street has been open, and for what distance? Please furnish me the three certified copies of ordinance passed by the town council authorizing the city to do this work. Also advise for what portion of this expense we will be assessed, whether the assessment can be paid in installments, the amount of each installment and date due, and if the ordinance imposes a penalty, and effective date of such penalty. Kindly let me have above information at once, and as soon as paving is *762 completed, furnish me bills in triplicate- to c'oéer. Your early attention to tbis will be appreciated. Yours respectfully, J. S. Bergman, Supt.”

It would be a peculiar anomaly for the railroad company, knowing that the improvements were being made, its superintendent with full knowledge recognizing “Bailroad Street” and writes “as soon as paving is completed, furnish me bill in triplicate to cover,” now to claim that they are the owners of the street paved at the expense of the town.

Even against a trespasser, it is said in R. R. v. McCaskill, 94 N. C., at p. 754: “Mere silence while a trespasser is improving real estate as if it were his own, while it may sustain a claim for the value of such improvements made in good faith, cannot be allowed to transfer the property itself to the usurping occupant.”

In Sugg v. Credit Corporation, ante, at p. 99, speaking to the subject, it is stated: “The doctrine of equitable estoppel is based on an application of the golden rule to the everyday affairs of men. It requires that one should do unto others as, in equity and good conscience, he would have them do unto him, if their positions were reversed. Boddie v. Bond, 154 N. C., 359, 70 S. E., 824; 10 R. C. L., 688, et seq. Its compulsion is one of fair play.” Charlotte v. Alexander, 173 N. C., at p. 519-20.

Charlotte v. Brown, 165 N. C., 435, is not in conflict with the position here taken. In that case, at p. 437-8, it is said: “The excess of 20 per cent of the assessment being void (italics ours), under the charter of the plaintiff, the defendant may enjoin the collection of the excess.” Flowers v. Charlotte, 195 N. C., 599. Nor is The Delaware, Lackawanna, etc., R. R. v. Town of Morristown, 276 U. S., 182, 72 Law Ed., 523. For the reasons given, the judgment below is

Affirmed.