Railroad Companies — Appropriation of Land — Damages — Limitations — Color of Title.
1. Where the charter of a railroad company provides that when the company has appropriated land without authority no action shall be brought by the owner except a petition to have the damage assessed, and fixes no limitation of the action, such petition is neither an action of trespass nor one on a liability created by statute within the meaning of The Code, sec. 155 (2) and (3), (statute of limitations), and the refusal of the trial judge to submit an issue upon the statute of limitations was not error.
2. An unregistered deed, accompanied by continuous possession by the grantor since its execution, is color of title, notwithstanding "Connor's Act" (ch. 147, Laws 1885), and was properly admitted in evidence in a proceeding to recover damages from a railroad for appropriating a part of the land before the registration of the deed.
MONTGOMERY, J.
The defendant company on the trial below made numerous exceptions, but in the argument here it abandoned them all except the second and third, which are in substance as follows: "2. Because Judge Hoke (at a previous term) upon objection by plaintiff refused to submit an issue upon the statute of limitations, although asked to do so by defendant. 3. Because Judge Hoke held that the deed to the plaintiff from T. S. Lutterloh, administrator and commissioner, dated 11 September, 1860, accompanied by possession, was color of title, although only recorded 26 June, 1886, and although the railroad had been constructed across the lot in 1885."
There was no error in the ruling of his Honor upon either of the matters to which those exceptions were made. In the case of Land v. R. R., 107 N.C. 72, it was decided that the defendant there (the defendant here also) could not avail itself of the provisions of section 155, subdivisions 2 and 3 (statute of limitations) of The Code, in actions like this, on account of peculiar features in its charter. The plaintiff, to show title to the land, offered in evidence a deed as color of title which was executed to herself by T. S. Lutterloh on 11 September, 1860, and which had been accompanied by the possession of the plaintiff or tenant since its execution, but which had never been registered until after the railroad had been constructed across the land in 1885. The deed was admitted by the court as color of title, and the defendant filed (724) the second exception. This deed, accompanied as it was with the possession as above set out, was color of title, notwithstanding Laws 1885, ch. 147. Avent v. Arrington, 105 N.C. 377.
NO ERROR.
Cited: Narron v. R. R., 122 N.C. 859, 861; Janney v. Robbins, 141 N.C. 408.