
158 S.E.2d 539 (1968)
272 N.C. 299
Albert L. KEZIAH and wife, Norma P. Kezlah, and Clegg A. Keziah and wife, Helen O. Keziah, Plaintiffs,
v.
SEABOARD AIR LINE RAILROAD COMPANY, Defendant.
No. 549.
Supreme Court of North Carolina.
January 12, 1968.
*543 Clark & Huffman, Monroe, for plaintiff appellants.
Cansler & Lockhart, Charlotte, for defendant appellee.
BRANCH, Justice.
The first and principal question for decision is whether the charter granted to Wilmington and Charlotte Railroad Company by the 1854-1855 Session of the General Assembly by Chapter 225 granted a right of way 100 feet wide on each side of defendant's main track, measuring from the center of same.
It is of interest to note that in the case of Carolina Cent. R. R. v. McCaskill, 94 N.C. 746, one of defendant's corporate predecessors was plaintiff and the act before us in the instant case was therein construed. In that case the railroad brought an action in ejectment to recover possession of property located within 100 feet of the center line of the railroad company's track. Defendant claimed the property it occupied by virtue of deeds of conveyance. Affirming the judgment of the lower court for the plaintiff this Court stated:
"It is not material to inquire into the source from which the defendant derives his title, beyond his mere occupancy, since the plaintiff must establish its right to the possession of the premises, in order to a judgment of ejection. In whomsoever the estate was vested, there being no suggestion that they were under disabilities, it was, under the statute, as soon as the road was constructed and toties quoties as it progressed towards conclusion, transferred to the corporation, of the required width of 100 feet on either side, to be paid for as directed, when no written contract has been entered into for the purchase. In such case, the inaction of the owner in enforcing his demand for compensation for land taken *544 and appropriated after the finishing of the construction of the road thereon, for the space of two years thereafter, raises, under the statute, a presumption of a conveyance and of satisfaction, and hence becomes a bar to an assertion by legal process, of such claim.
"These conditions unite in this case, and not only does the title vest in the corporation, but the remedy given the owner, under no disability, has been lost by lapse of time.
* * * * * *
"The presumption of the conveyance arises from the company's act in taking possession and building the railway, when in the absence of a contract, the owner fails to take steps, for two years after it has been completed, for recovering compensation. It springs out of these concurring facts, and is independent of inferences which a jury may draw from them. If the grant issued, it would not be more effective in passing the owner's title and estate. Thus vesting, it remains in the company as long as the road is operated, of the specified breadth, unaffected by the ordinary rules in reference to repelling presumptions, * * *.
* * * * * *
"* * * the statute does not require the occupation and direct use of every foot of the condemned area, for building embankments and the like, but preserves the property in the company, so long as the road runs over the land and is operated by the company. A permissive use of part of it by another, when no present inconvenience results to the company, is not a surrender of rights of property, and, indeed, to expel an occupant under such circumstances, would be a needless and uncalled for injury. This may suspend, but does not abridge the right of the company to demand restoration, when the interests of the road may require its use."
The McCaskill case was modified in the case of Railroad Co. v. Sturgeon, 120 N.C. 225, 26 S.E. 779, where the Court considered similar conditions and the same statutory language as in McCaskill, and held that the railroad did not acquire a title to the land, but acquired an easement which entitled it to possession of the whole right of way only when it should appear that it was necessary for the conduct of its business.
In the case of Southern R. R. v. Lissenbee, 219 N.C. 318, 13 S.E.2d 561, the railroad brought action to require defendant to remove obstructions around its signal and switching system, and to restrain defendant from interfering with its equipment. Defendant contended the right of way of plaintiff was limited and it had no rights on places where the electric signal was situated. Plaintiff contended that its charter granted by statutory presumption a right of way 100 feet on each side of the center line of its track and over the property of the defendant. Plaintiff's charter contained a section substantially the same as section 28 of Chapter 225, Session 1854-1855, hereinbefore set out. The Court, affirming judgment in favor of plaintiff, stated:
"Provisions of similar character and like effect, to this quoted portion of Section 29, appearing in the charters granted by the General Assembly to other railroad companies in the early era of railroad building in North Carolina have been considered in numerous decisions of this Court, among which are these: Vinson v. North Carolina R. R., 74 N.C. 510; Carolina Cent. R. R. v. McCaskill, 94 N.C. 746; Raleigh & A. Air Line Co. Railroad Co. v. Sturgeon, 120 N.C. 225, 26 S.E. 779; Dargan v. Carolina Cent. R. R., 131 N.C. 623, 42 S.E. 979; Barker v. Southern R. R., 137 N.C. 214, 49 S.E. 115; Seaboard Air Line R. R. v. Olive, 142 N.C. 257, 55 S.E. 263; Earnhardt v. Southern R. R., 157 N.C. 358, 72 S.E. 1062.
"The tenor of these decisions is expressed in Barker v. Southern R. R., supra, in this manner: `This mode of acquisition is not an exercise of the right of eminent domain. It is based upon a *545 purely statutory presumption. The concurring conditions are (1) entry and construction of the road; and (2) the failure of the owner to prosecute an action for two years. These concurring conditions existing, the statute fixes the term of two years within which the owner may prosecute his action, and in default of which the road acquires the easement described, to wit, "one hundred feet on each side of the center of the road," with the limitation fixed as to time and use'.
"Again, in Earnhardt v. Southern R. R., supra, it is said: `The effect of inaction on the part of the owner for a period of two years after the completion of the road has been considered in several cases in this court under charters similar to the one before us, and, without difference of opinion, it has been held that under such circumstances, a presumption of a grant from the owner arises for the land on which the road is located, and for the right of way provided for in the charter'.
"This presumption, however, only arises in the absence of contract in relation to the lands through which the railroad may pass. Hence, the burden is upon the party claiming the benefit of such presumption to show every fact out of which it arises. Barker v. Southern R. R., supra."
Again, in the case of Carolina & N. W. R. R. v. Piedmont Wagon & Manufacturing Co., 229 N.C. 695, 51 S.E.2d 301, the Court considered provisions in a charter similar to those pertinent to the instant case, and held:
"It is generally held that where a common carrier by railroad, under provision of its charter, enters upon land and builds a railroad, without grant or condemnation of the right of way, and no action or proceeding is commenced by the land-owner within the statutory period for recovering compensation, a presumption of a grant or conveyance arises from the concurrence of these circumstances, and this presumption extends to the limits which the railroad company might have taken by condemnation and for which the landowner could have recovered compensation had he brought his action within the prescribed period of time. Earnhardt v. Southern R. R., 157 N.C. 358, 72 S.E. 1062. In such circumstances the railroad is said to acquire its right of way by implied grant or by operation of law. Carolina Cent. R. R. v. McCaskill, 94 N.C. 746; Raleigh & A. Air-Line R. R. v. Sturgeon, 120 N.C. 225, 26 S.E. 779; Seaboard Air Line R. R. v. Olive, 142 N.C. 257, 55 S.E. 263, and cases there analyzed and reviewed."
Appellants correctly contend that when defendant relies on a statutory presumption to establish its right of way, the burden is upon defendant to show by a preponderance of the evidence every fact out of which the presumption arises, i. e., that defendant entered upon the land and constructed its tracks in the absence of any contract with the owner and that the persons owning the land when the road was finished did not apply for compensation within two years, as provided by statute. Barker v. Southern R. R., supra; Earnhardt v. Southern R. R., supra.
Here, defendant railroad company offered uncontradicted evidence of entry and construction of the railroad over ninety years ago, without any contract with the owner or owners. Plaintiffs neither by allegation nor proof controverted this evidence. Manifestly, sufficient time has long since elapsed for acquiring the right of way by statutory presumption.
Other than evidence of the alleged trespass, the essence of appellants' evidence was that there were Western Union poles on the property in controversy and that there was a fence within 80 feet of defendant railroad company's main track; that certain conveyances tend to show that the southern boundary of plaintiffs' line is 35 to 50 feet from the center line of the track, and that *546 other adjoining land appears about 50 feet from the center of the track.
It is well settled by statute and precedent in this jurisdiction that when a railroad has acquired and entered upon the enjoyment of its easement, the further appropriation and use by it of the right of way for necessary railroad business may not be destroyed or impaired by reason of the occupation of it by the owner or any other person. G.S. § 1-44; Carolina Cent. R. R. v. McCaskill, supra; Atlantic Coast Line R. R. v. Bunting, 168 N.C. 579, 84 S.E. 1009.
Further, the fact that others own fee in the right of way and such ownership is indicated by deed or map appearing in the public registry presents no evidence of probative force that the right of way does not belong to the railroad, since it only has an easement which it may exercise to the full extent when in its judgment the necessities of its business so require.
Appellants argue that the presumption created by charter granted in Chapter 225, Private Laws of 1854-1855, cannot apply to a tract of land over which the railroad is not constructed. In this connection, appellants rely strongly on the case of Wearn v. North Carolina R. R., 191 N.C. 575, 132 S.E. 576, which states:
"The law of North Carolina, as declared in many decisions, is to the effect that if a railroad company enters upon land under a deed or grant from the owner which purports to convey an unrestricted right of way and no definite quantity or width of land is specified, and thereafter constructs its road thereon, then it is presumed that the owner has granted to the company the width designated in the charter or in the general statute. This statutory presumption therefore applies: (1) In the absence of a contract between the parties; (2) where the contract purports to convey an unrestricted right of way and no definite quantity or width is specified; (3) only against the owner across or over whose land the track is constructed."
Appellants, of course, rely on subsection (3) quoted above to sustain their position.
The facts in the Wearn case, on which appellants rely, are distinguishable from the instant facts, in that in Wearn the defendants claimed an easement by virtue of a grant from the Town of Charlotte and from one Peter M. Brown, and also by virtue of the statutory presumption. In Wearn it is stated: "It has also been determined that a railroad company cannot claim under a deed and also under a statutory presumption." Hickory v. Southern R. R., 137 N.C. 189, 49 S.E. 202. The Wearn case further stated:
"* * * When the defendant accepted the deed restricting and limiting the amount of land to be used for railroad purposes, it cannot be permitted to extend its user or easement beyond that portion of said land actually used and occupied. This construction of the deed in question and the effect of the restrictive clause referred to is established in the decision of Tighe v. Seaboard Air Line R. R., 176 N.C. page 239, 97 S.E. 164. In the Tighe case there was a restrictive clause and evidence to show that only a portion of the land was used and occupied by the railroad company under said restrictive clause, and the finding of the jury as to the extent of the easement and judgment thereon was upheld."
The Tighe case, cited above, is a case in which the defendant railroad company acquired by deed a less width of land as a right of way than that authorized by its charter, and action was brought to recover damages for alleged encroachment upon the property of the plaintiffs in the construction of defendant's track. There was evidence which tended to show that only one-quarter of an acre was used and occupied by the railroad company. The Court, holding that only by condemnation *547 and payment of compensation to the owner could the railroad company occupy more than was conveyed by deed, stated:
"Indeed, our decisions are uniform that when a railroad company has acquired the right of way by condemnation or by purchase of the right of way, the deed not limiting the conveyance to less than the statutory width (as in Hendrix v. Southern R. R., supra, 162 N.C. 9, 77 S.E. 1001), or has entered upon the land and acquired it without condemnation and without conveyance, by reason of the acquiescence of the owner for the statutory time, in all these cases, while the railroad can use only the part actually occupied (the adjacent proprietor using the rest of the right of way sub modo; that is, subject to the easement of the railroad), still in all these cases, whenever the necessities of the company require it, it can extend its user of the right of way to the extent of the statutory right for additional tracks or other railroad purposes. This matter has been fully discussed and uniformly decided in many cases. Seaboard Air Line R. R. v. Olive, 142 N.C. 257, 264, 55 S.E. 263; [Raleigh & A. A-Line] Railroad Co. v. Sturgeon, 120 N.C. 225, 26 S.E. 779; Carolina Cent. R. R. v. McCaskill, 94 N. C. 746; Barker v. Southern R. R., 137 N.C. 214, 49 S.E. 115.
"The present case, however, is distinguished from the above, for here the defendant railroad did not acquire the right of way either by condemnation or by occupation, without objection, for the statutory time, nor by a deed for the `right of way,' all of which would be presumed to give an easement to the full width of the right of way allowed by the charter or the general law; but the defendant railroad was content to accept a deed specifying as the boundary `according to the survey made by Ed. Myers, civil engineer,' and the jury find that this did not embrace the locus in quo. The defendant, therefore, is restricted to the boundary described in its deed."
Here, defendant railroad did not acquire the right of way in dispute by a restricted conveyance, nor did it rely on both a conveyance and a statutory presumption. It claims only by virtue of the statutory presumption authorized by its charter, which presumption is not restricted to the owner or owners over whose land the track is constructed.
In light of present day land values, the density of the population and the highly developed state of our economy, we might, at first glance, question the policy of liberal acquisition of properties granted to railroad corporations by the legislature. However, the policy-making power of the legislature is not within our province, and the policy adopted by the legislature in the early history of railroad building in this state is justified in the case of Seaboard Air Line R. R. v. Olive, supra, from which we quote:
"* * * The point of view from which charters for railroads were drawn in this state 50 years ago must not be lost sight of in construing them in the light of present conditions. If, to induce the investment of capital in the construction of railroads and development of the country, large privileges were conferred, not inconsistent with the exercise of the sovereign power of the state in controlling them, we may not construe them away without doing violence to sound principle and fair dealing. When these rights of way were granted or statutes enacted permitting their acquisition in the exercise of the right of eminent domain, it was contemplated that they should be of sufficient width to enable the company to safely operate the road and protect the adjoining lands from fire communicated by sparks emitted by the engines. Land was cheap and population sparse. The railroads, as the charters show, were to be built by the citizens *548 of the state; the capital stock to be subscribed by large numbers of people. Legislatures were ready to make broad concessions to these domestic corporations, and, as shown by the record in this and other cases in this court, the owners of lands, because the `benefits which will arise from the building of said railroads to the owners of the land over which the same may be constructed will greatly exceed the loss which may be sustained by them,' were `desirous to promote the building' thereof, and to that end to give to them rights of way over their lands. When the road has been constructed and the benefits enjoyed, although new and unexpected conditions have arisen, the rights granted may not be withdrawn, although the long deferred assertion of their full extent may work hardship."
Defendant had the burden of proof to establish all the facts giving rise to the statutory presumption, i. e., entry and construction of the road in absence of any contract in relation to the land, and inaction on the part of the owner of the land for over two years after building of the road. All the evidence, without conflict, tends to support its claim that the statutory presumption has arisen. Thus, defendant was not entitled to a nonsuit, but was entitled, upon proper issues being submitted to the jury, to a peremptory instruction that it is the owner of a right of way over the land in controversy to the extent of the land over which said road was constructed, together with a space 100 feet on each side of the center of said road, for railroad purposes, whenever and to the extent necessary for the operation of its trains or the performance of its duties and obligations to the public as a common carrier.
Further, plaintiffs contend that the trial judge erred in allowing defendant's motion for judgment as of nonsuit because there is testimony in the record that defendant parked one of its trucks 125 feet from the center of the railroad track (which is admittedly beyond the right of way claimed by defendant), and that the entry upon the land of plaintiffs was unauthorized.
Any unauthorized entry on land in the actual or constructive possession of another constitutes a trespass, irrespective of degree of force used or whether actual damage is done. Such entry entitled the aggrieved party to at least nominal damages. Schafer v. Southern R. R., 266 N.C. 285, 145 S.E.2d 887; Letterman v. English Mica Co., 249 N.C. 769, 107 S.E.2d 753; Matthews v. Forrest, 235 N.C. 281, 69 S.E. 2d 553; Whitley v. Jones, 238 N.C. 332, 78 S.E.2d 147.
Considering the evidence in the light most favorable to plaintiffs, as we are required to do on motion for nonsuit, and construing the pleadings in the light most favorable to plaintiffs, there appears to be sufficient evidence to carry the case to the jury, although the damages shown would seem to be only nominal.
For reasons stated, we hold that the trial judge erred in granting defendant's motion for nonsuit.
Reversed.
