« PreviousContinue »
MCNEILL RAILROAD Co.
any office-holder whatever of a free pass from a railroad or telegraph company, or other discrimination in his favor, a forfeiture of office. This recital will serve to show the importance and general aceptance of the public policy, of equality in treatment by quasi public corporations whose infringement our statute punishes with a fine "not exceeding five thousand dollars" and whose observance it is the duty of all courts to enforce. The denunciation of the statute is directed against discrimination in the exercise of a quasi public function which public policy demands shall be discharged with absolute impartiality and equality—“with equal rights to all and special privileges to none."
We were cited to many authorities holding ineffectual stipulations upon the back of free passes, exempting the common carrier from liability for injuries sustained by the holder thereof. These authorities are conflicting, 4 Elliott R. R., Sec. 1608, and can be considered only when the pass is issued in one of the cases permitted by our statute. It has no application to a case like this where the contract of free carriage is illegal and the parties are in pari delicto.
This is a stronger case for the defendant than Turner v. Railroad, 63 N. C., 522, in which a soldier contracted with a railroad company for transportation to Johnston's Army to serve against the United States and was injured en route by negligence of the company, and it was held that he could not recover damages, Reade, J., saying that the contract of carriage being illegal, the parties "were in pari delicto" and the court "would consult its dignity, and not interfere in their dispute." To same purport Martin v. Wallace, 40 Ga., 52; Redd v. Railroad, 48 Ga., 102; Railroad v. Redd, 54 Ga., 33.
This is the first case in which the illegal discrimination is set up by the common carrier, but it so happens that by the lapse of time it is now protected from indictment by the
LAND Co. v. HOTEL.
Statute of Limitations. In refusing to grant judgment as of non-suit, there was
DOUGLAS, J., dissenting. I am inclined to think that the plea in pari delicto, applying solely to the contract of carriage, is not a defense to an action for personal injuries caused by the negligence of the defendant.
SHEPARD'S POINT LAND CO. v. ATLANTIC HOTEL.
(Filed May 5, 1903.)
NAVIGABLE WATERS-Grants - Riparian Owners - Easements - The Code, Sec. 2751-Acts 1889, Ch. 555-Acts 1891, Ch. 532-Acts 1893, Ch. 17-Acts 1858, Ch. 136-Waters and Watercourses.
A grant to a riparian owner of land covered by navigable water conveys only an easement therein and a deed of the land adjoining the navigable water conveys the easement in the land covered by the water.
ACTION by Shepard's Point Land Company against the Atlantic Hotel, heard by Judge George H. Brown, at September Term, 1902, of the Superior Court of CARTERET County. From a judgment for the plaintiff the defendant appealed.
W. W. Clark and Lindsay Patterson, for the plaintiff. C. L. Abernethy, Simmons & Ward and Armistead Jones & Son, for the defendant.
CONNOR, J. The plaintiff brings this action for recovery of possession of a tract of land described in the complaint as "lying and being situate in the County of Carteret, in Morehead City, adjoining the square on which the hotel building of the defendant is located, and known and described as
LAND CO. v. HOTEL.
square No. 83 in the plan of Morehead City." It alleges that the defendant is in possession of the above described lot "upon which there has been erected certain walks, wharves, bath houses, pavilion, etc., and that such possession is unlawful and wrongful."
The defendant denies that the plaintiff is the owner of the property described in the complaint and denies that it is in possession thereof, except that it has a wharf, walkway and two bath houses leading from the rear of said hotel over and into the waters of Bogue Sound. It avers "that Bogue Sound is an arm of the sea, navigable for sea vessels and other ships, and the said hotel is about a mile from the Atlantic ocean; the tide from said ocean ebbs and flows daily in said sound and upon the shore whereon the said hotel is located, and the space between the said hotel and bath houses and where the walkway and wharf are situated is covered by the waters of said sound and the defendant is advised that the plaintiff has no title thereto."
The plaintiff claims the land, which is covered by water, described in the complaint and known in the plan and on the map of Morehead City as Square No. 83, under the following chain of title, to-wit: Grant from the State to John M. Morehead and W. L. Arendell, bearing date May 2d, 1856. The grant is made to said grantees, "owners and riparian proprietors of the lands known as the Shepard's Point Lands on Beaufort Harbor." It includes the tract or parcel of land lying around Shepard's Point Lands and between high water mark and the deep water of Bogue Sound, Newport River and Calico Creek." The description in the grant covers 502 acres of land and surrounds the lands known as the Shepard's Point Lands, which by the charter of Morehead City embraces the entire water front of the said city and runs out from high water mark on the shores of said lands to the deep water of said sound, river and creek. The
LAND CO. v. HOTEL.
Shepard's Point Land Company was chartered by Chapter 136, Laws 1856. The charter was extended by Chapter 50, Acts 1887. The town of Morehead City was incorporated by Chapter 172, Laws 1860-'61. Section 6 provided "That the corporate limits of said city shall embrace the entire plan of the city of Morehead as published by the Shepard's Point Land Company, and from the terminus of the Atlantic & North Carolina Railroad Company to Fifteenth street."
The plaintiff introduced deeds tending to show that at the time of issuing the grant, May 24, 1856, the grantees were the owners of Square No. 1 and that said square was abutting Square No. 83, the latter being the water front covered by water and extending out into Bogue Sound. The plaintiff offered deeds tending to show that the defendant company had acquired title by direct chain from John M. Morehead and W. H. Arendell through the plaintiff, who owned Squares No. 1 and 83 at the time of the conveyance of Square No. 1, upon which the "Atlantic Hotel" is located. The plaintiff introduced a deed from the Shepard's Point Land Company to John M. Morehead, dated August 19, 1859, conveying Square No. 1, "bounded on the north by Arendell street, on the east by Third street, on the south by Evans street and on the west by Fourth street." The plaintiff introduced chain. of title to Square No. 1 from John M. Morehead to the defendant, and also introduced a map of Morehead City. It will appear by reference to that map that Evans street for a considerable distance, and especially between Squares No. 1 and No. 83, "is covered by the tide water at high tide and has never been opened between Squares No. 1 and 83, and is not used as a public street."
W. L. Arendell, a witness for the plaintiff, testified: “The hotel is on Square No. 1 and is known as the Atlantic Hotel. The water front is Square No. 83 and is covered by water. At low tide a small portion of it is not covered by water.
LAND CO. v. HOTEL.
The wharves and bath houses on Square 83 were built in the latter part of 1880 by the Morehead City Hotel Company, under whom the defendant claims. There are two wharves or piers. They are about eight feet wide, and one is about 200 feet long and is connected with the hotel and extends out into Bogue Sound; about fifty feet from the end of it is the gentlemen's bath house. The other pier extends out into the sound about eighty feet, and is connected with the other wing of the hotel, and at the end of it is the ladies' bath house. These wharves and bath houses are in the waters of Bogue Sound and on Square 83. The depth of water at the end of the long pier is from six to eight feet, sometimes more, sometimes less, according to the tide. The depth of the water at the end of the ladies' pier is about five feet, varying acording to the tide. The tidewater at high tide washes up to Square No. 1 and within a few inches of the brick foundation of two of the wings of the hotel. Square No. 83 is south of Square No. 1 and is generally covered by water. There was a street leading off, upon the plan of said town, between Square 83 and Square 1. This street is called 'Evans street' and is sixty feet wide, but it has not been opened between Squares 1 and 83 and is not used as a public street of Morehead City. At high tide it would be very nearly covered by water. The grant to John M. Morehead and W. H. Arendell covers Square 83. Evans street was laid off on the plan of the town after the issuing of said grant. Square 83 is always covered by the tide at any ordinary high tide and the greater part of it is covered at low tide. The ocean tide comes in at the inlet, which is about two miles off, and ebbs and flows over Square 83; this square is a part of Bogue Sound. Boats sail from the ocean and on the ocean and back to the hotel, and sail over and about Square 83, and tie up and anchor all along the long pier from its end up to 75 or 100 feet towards the hotel, according to the state of the tide.