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of both parties to the contract of 1851, save only such as are outstanding in the plaintiff. There has therefore been a merger, but to that extent only. Jones on Easements, Sec. 835; Gould on Waters, Sec. 313; McAllister v. Devane, 76 N. C., 57.

The defendant and those under whom it claims furnished to the plaintiff's testator the fifteen horse power claimed by Lim till May, 1901, when the dam across the Deep River (referred to in the aforesaid contract) was broken, since which time no water whatever has been furnished, and this action is for the damages sustained thereby.

In an action determined by judgment in 1880, wherein the defendant's assignor was plaintiff and the assignors of the plaintiff's testator were defendants, the complaint alleged that the Burns heirs (assignors of the plaintiff's testator) were using more than fifteen horse power, and the jury found that they were not. The plaintiff herein relies upon the demurrer filed in that cause and other pleadings as an estoppel.

The foundation of the plaintiff's action is that the contract of 1851 created, as to the navigation company, a covenant real running with the land, and that the defendant having broken the contract and the plaintiff having acquired Jones' title, can recover for the breach of covenant. But Jones conveyed no land to the navigation company, and there can be no breach of the covenant running with the land unless there is a grant of an estate in the land to which the covenant is annexed. Jones granted an easement to dig and use a canal through his land in consideration of the other party maintaining a dam and allowing him the use of a certain quantity of the water. It was Jones' covenant which ran with his land and in favor of, not against, the navigation company. This easement has passed to the defendant, but not the obligation to keep up the dam. When the dam is not


kept up for a sufficient space of time to establish an abandonment of the easement, it is lost. But that question is not before us. It is clear that there is no obligation upon the defendant to keep up the dam. It did not bind itself to do so, and is not the assignee of any land which was conveyed originally charged with such duty. If this were an action by the defendant seeking to enforce its right to an eåsement, then the defense of abandonment, and perhaps a counterclaim for damages during non-user, would be properly before us.

The action determined in 1880 was by the defendant's assignor to prohibit the plaintiff's assignor using more than its fifteen horse power. It could not be established in that action brought to regulate and restrict the quantity of water which the present defendant's assignor should pay for its easement, that defendant's assignor was liable for a covenant to keep up the dam. It was not within the scope of that action. Tyler v. Capehart, 125 N. C., 64, in which the doctrine of estoppel is fully discussed and determined.

The defendant herein contends further that the one acre conveyed to the plaintiff's original assignor (Burns), though a part of the Jones land, does not embrace any of the land upon which the canal is located (the boundary being the embankment of the canal), but lies between the canal and the river; hence that the grant is void, being of an easement in gross, severed from the land to which it was appurtenant. But we need not consider this contention, for the reason that the defendant herein is not controverting the easement, which is in its favor, nor what payment for its use it must make to the plaintiff, if it were using the same; but the plaintiff is endeavoring to establish the defendant's liability for not performing the duty of keeping up the dam, which the defendant must do before it can claim an easement. fendant has never contracted to keep up the dam. an obligation of the defunct navigation company.

The de

That was

The de


fendant has simply acquired the easement, which it can not use unless it complies with the terms upon which it is held. This easement may be abandoned by non-user or released by deed. Merriman v. Russell, 55 N. C., 470.

In granting judgment of non-suit there was
No Error.


(Filed April 21, 1903.)

1. RAILROADS-Charter-Corporations-Eminent Domain - Evidence — The Code, Secs. 1932, 1933.

Where the articles of incorporation of a railroad company are upon their face void, the trial court will so declare in a proceeding to condemn land by right of eminent domain claimed thereunder. 2. RAILROADS-Charter-Corporations-Recordation - The Code, Secs.

1932, 1933.

The filing and recording by the secretary of state of articles of association of a proposed railroad company, if not such as required by law, is a nullity.

3. RAILROADS-Eminent Domain

Recordation-Filing - Map - The

Code, Sec. 1952-Acts 1893, Ch. 396.

In an action to condemn land for railroad purposes, the profile required to be filed must show whether there will be any "fills” or "cuts" on the land sought to be condemned.

4. APPEAL-Clerks of Court-Superior Court-Exceptions and Objections— The Code, Sec. 255-Acts 1887, Ch. 276.

On the removal of a proceeding before the clerk of the superior court to the superior court objections may be raised on trial in the superior court that were not raised before the clerk.

ACTION by the Kinston & Carolina Railroad Company against I. and S. Stroud, heard by Judge E. B. Jones, at January (Special) Term, 1903, of the Superior Court of LENOIR County. From a judgment for the defendants, the plaintiff appealed.


Loftin & Varser, for the plaintiff.

Rouse & Ormond and W. D. Pollock, for the defendants.

CLARK, C. J. The plaintiff claiming to be a railroad company organized under Chapter 49 of The Code, began this proceeding before the clerk to condemn a right-of-way over defendants' land. On appeal from his order to the judge, the plaintiff offered in evidence: (1) A copy of the agree ment and Articles of Association with certificate of the Secretary of State that they had been filed in his office. (2) The profile. These Articles of Association set forth that the proposed railroad was to be sixty miles long, that $32,000 had been subscribed and five per cent. thereof had been paid in, to-wit, $1,600. The Code, Section 1932, requires that the Articles of Association, filed for the purpose of forming a railroad company, shall state "the length of such road as near as may be." Section 1933 provides that such Articles shall not be filed and recorded in the office of the Secretary of State until at least $1,000 of stock for every mile of proposed railroad is subscribed and five per cent. thereon paid in good faith, with acompanying affidavit of three directors, etc. This was not done here, as only $32,000 is reported as subscribed, with $1,600 cash paid in, instead of $60,000 subscribed and $3,000 certified to be paid in as required by the statute.

Of course the charter of a corporation can not be collaterally attacked and a direct proceeding must be brought to annul it. But if the charter were on its face inoperative and void, a court would so declare it in any proceedings to condemn lands by virtue of the right of Eminent Domain claimed thereunder. By virtue of these proceedings under Chapter 49 of The Code the duties of the Secretary of State are only to “file and record" when the proposed Articles are in form in compliance with the statute. He adjudicates nothing, though he can refuse to file and record Articles of


Association not complying with the statute, but he issues no charter or letters patent. It is true the persons are not a corporation until the Articles are filed, but if they are not in compliance with the requirements of the statute the corporation acquires no life or rights, however much it or the alleged corporators may be estopped to deny liability for acts done under color of such registration by them in the office of the Secretary of State. Upon the presentation of the certified copy of the Articles of Association his Honor seeing that upon the face thereof the law had not been complied with, properly adjudged that the alleged corporation had not been legally incorporated and could not procure an order to condemn a right-of-way through defendant's premises. The "filing and recording" by the Secretary of State of Articles of Association, if not such as required by law has no more effect than a registration of a deed not duly authorized (Todd v. Outlaw, 79 N. C., 235) or than the docketing a judgment confessed without legal requirements (Uzzle v. Vinson, 111 N. C., 138) or recording a laborer's lien without complying with the requirements of a statute (Cook v. Cobb, 101 N. C., 68). This is not a collateral attack, but holding that the Articles of Association, like the above papers, are invalid and of no effect, upon their face.

The profile not being such as required by the statute the court also properly held that this was a condition precedent before an order of condemnation could be granted. It is true it does not affirmatively appear that there would be any "cuts" or "fills" on defendant's land. But the very object of requiring the profile is that it may appear whether or not there will be such "cuts" or "fills" before granting the order of condemnation and that the jury may have the benefit thereof in assessing damages. It is enough that the statute requires the profile to be filed and that the plaintiff has failed. to do what was required in this respect. It is immaterial

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