dissenting: My views of the rights of tbe defendant as founded upon well recognized principles of law force me to dissent from tbe opinion of tbe Court in this case. If we should seek to dispose of tbe case upon tbe basis of public convenience and public benefit alone, in my opinion, tbe result would be contrary to that reached by tbe majority of tbe Court. A private crossing by its very nature serves tbe few. Tbe railroad company in tbe exercise of its charter rights, and controlled, as it is, by strict public regulation, must serve tbe entire public. If tbe rights conflict, certainly tbe public interest would be better served by tbe abolishment of tbe private crossing. But in this case, as I will show, tbe abolishment of a private crossing is not tbe real question presented.
Tbe defendant found it necessary to enlarge its freight yards at Nor-lina in order to better perform its duties to tbe public as a common carrier. This required tbe purchase of additional land adjacent to its tracks and at a point where its yards could be enlarged and extended to tbe greatest advantage. A tract of land belonging to "W. R. Creed & Co., containing 60 acres, located at a point south of tbe town of Norlina, answered tbe purpose, and negotiations were opened for its purchase. At tbe conclusion of tbe negotiations, which were carried on by C. H. Hix, vice president and general manager, for tbe railroad, and by W. R. Creed for W. R. Creed & Co., a deed in fee simple for this 60-acre tract *528was executed by W. R. Creed & Co. to Seaboard Air Line Railway. Tbis deed contained no exception and no attempt was made to reserve a right of way across the land conveyed.
1. There is no evidence of a contract to keep a private way open across this land. As the Chief Justice says: “The deed embraced the contract between the parties, and the jmeliminary treaty was merged into it.” ' This removes all question of a contract to keep open the private way across the land purchased by the defendant, and destroys the force of Herndon’s case, 161 N. C., 650, as authority in support of plaintiff’s contention. 'In that case there was evidence of an agreement to keep the way open.
2. There is no question in this case of the right of a railroad to close a public crossing. The following admission appears in the record: “Plaintiffs admit that the said road, the crossing in question, is not a public road and crossing and has not been dedicated to nor accepted by the county commissioners of Warren or board of road commissioners or any other road authorities of Warrenton Township in which it is located, and has not been worked nor kept up by said public road authorities.” The eases of R. R. v. Goldsboro, 155 N. C., 360, and Raper v. R. R., 126 N. C., 566, relate exclusively to public ways, and this admission makes them inapplicable to the facts of this case.
3. This is not a way of necessity. The owner’s land was not severed into parcels. Creed & Oo. owned no land on the north side of the railroad, and the tract of land sold to the defendant does not divide part of this land from another part. There is not a line of evidence in the ■record tending to support the application of the principle that “the owner whose land has been severed into parcels may claim and enforce the right to a crossing notwithstanding his unconditional deed of conveyance,” and Elliott on Railroads, sec. 1138, quoted by the Chief Justice, does not apply.
4. We come, then, to the real question in the case, Can the owner of land in fee simple close a private way extending across it where it is not a way of necessity and there is no contractual obligation to keep it open? The answer to this question is to my mind so obvious it seems hardly to require the citation of authority. It has been repeatedly answered in the affirmative by this Court. It is so answered in Boyden v. Achenbach, 86 N. C., 397, in which Chief Justice Smith says: “It would be unreasonable to deduce from the owner’s quiet acquiescence— a simple act of neighborhood courtesy, in the use of a way convenient to others, and not injurious to himself, over land unimproved or in woods — • consequences so seriously detracting from the value of the land thus used, and compel him needlessly to interpose and prevent the enjoyment of the privilege in order to-the preservation of the right of property unim*529paired.” In the later case of S. v. Fisher, 117 N. C., 733, Mr. Justice Avery says: “Tbe continuous use by tbe people living in tbe neighborhood or in tbe State for a period of even sixty years does not deprive tbe owner of tbe right to resume control, nor does it devolve upon tbe properly constituted authorities of tbe county or tbe town, as tbe case may be, tbe duty, with tbe incidental expense to tbe public, of its reparation.”
It cannot be doubted that upon these authorities tbe defendant’s grantors, Creed & Co., could have closed this way, unless prevented by contract from doing so. Certainly their grantee by unconditional deed of conveyance has tbe same right. Can it make any difference in tbe application of this principle that tbe grantee is a railroad company? In this respect a railroad is not different from an individual owner. In fact, tbe law looks with more favor upon tbe title of a railroad to its property and prohibits tbe acquisition of title to such property by possession. Revisal, sec. 388. If tbe defendant should have desired to use this 60-acre tract for a warehouse, could its right to do so have been denied upon tbe ground that it would interfere with this private way? Could tbe defendant have been denied tbe right of closing this private way across its land before tbe construction of its side-tracks ? Its dominion over tbe property by virtue of its ownership included tbe right to say that this private way should not be used; and whether it was closed by one obstruction or another or at tbe time of or after purchase makes no difference in tbe application of this principle. At tbe time title was acquired there was no crossing on this tract of land. Tbe defendant’s right to close tbe private way arose immediately and could be, exercised whenever tbe defendant so desired. That it permitted tbe way to be used for a period of two years could not be deemed a waiver of this right. Revisal, sec. 388; S. v. Fisher, supra. Having tbe right to close this private way across its land, tbe defendant certainly has tbe right to place its cars on its side-tracks constructed on this land in shifting and making up its trains, and tbe plaintiffs, who have no claim of right therein, cannot complain of tbe incidental interference with a privilege which they exercised at tbe sufferance of tbe defendant. Tbe case of Goforth v. R. R., 144 N. C., 569, and tbe statutes referred to therein have no application. There is a broader question here than tbe interference with a private crossing created by tbe condemnation of a right of way in the exercise of tbe right of eminent domain. This case involves a property right of vital importance to tbe citizens of this State, and tbe defendant should not be charged with inexcusably creating a conflict with the plaintiffs.
Whatever may be tbe law of other States and countries relating to tbe abolishing of grade crossings, I venture to say that in no State or eoun-*530try has it been held that a railroad company should not only permit the use of its property as a private way by the people in the neighborhood when such use interferes with the operation of its trains, but should expend thousands of dollars in carrying the private way under the tracks in its freight yards in order to facilitate such permissive use.
I cannot give my consent to a decision that is so opposed to well established principles of law and justice and the prior decisions of this Court as I understand them.