Reidsville Grocery Co. v. Southern Railway Co.

Sea well, J.

Where the terms of an instrument are unambiguous its meaning must be gotten from the writing itself. Town of Jacksonville v. Bryan, 196 N. C., 721, 147 S. E., 12; McCain v. Ins. Co., 190 N. C., 549, 551, 130 S. E., 186. The right-of-way conveyance involved in this controversy does not seem to have that ambiguity that would justify us in entertaining inferences drawn from extraneous facts in aid of its interpretation.

While the conveyance must be considered as a whole, all of its clauses contextually, without technical distinction or arbitrary preference of any of them because of the order in which they come in the instrument, or their historical significance (Triplett v. Williams, 149 N. C., 394, 63 S. E., 79, 16 Am. Jur., p. 533-535), still, so considered, we cannot find that the grant of right-of-way across plaintiff's land is so modified' by the further provisions of the instrument as to restrict its use to the service of plaintiff’s enterprises or of industries located on the land described. Plaintiff’s contention to that effect is based on the italicized portion of the following excerpt from the conveyance, which is here given with its context:

“Reidsville Grocery Company ... in consideration of one dollar . . . paid by the Railway Company . . . does convey unto the Railway Company a right-of-way 15 feet in width . . . over and upon the land . . . for an industrial spur track . . . which will spring from the passing track of- the Railway Company . . . at a point on said passing track 562 feet north of mile post 263 and will extend thence, in a southeasterly direction, for a distance of 353 feet, more or less, of which 196 feet will be upon the right-of-way of the Railway Company for its said main track; 71 feet, more or less, upon and along East Market Street, and 86 feet, more or less, upon the said land of the party of the first part, together with such additional right-of-way over and upon the said land ... as may be necessary . . . for the purpose of shifting and relocating said industrial spur trade or constructing, maintaining and operating branches or extensions thereof to serve with shipping facilities industries located upon said lands. . . .”

We can interpret this only as a conveyance -of the right-of-way, unrestricted as to its use, across' the lands described, with the additional privilege of shifting the location of the tracks or extension of the line on said land when found necessary to facilitate service to plaintiff’s enterprises or other industries located thereon. If there was any understanding to the contrary when the contract was made, it did not find adequate expression in the written instrument; and, as stated in McCain v. Ins. Co., supra. “The contract is what the parties agreed and not what either party thought.” Whatever restriction there is as to the use of the tracks on plaintiff’s premises is confined to the relocation of defendant’s tracks, or extension thereof, as a further encroachment on the premises.

It follows that the acts of which plaintiff complains are not trespasses and cannot be legally restrained.

Since the damage to plaintiff’s property which is alleged to have occurred is made to depend entirely on the theory of trespass, growing out of a supposed want of authority in the conveyance to use the right-of-way .for the purposes indicated, and no allegation is made of any negligent use of the right-of-way or operation of trains, or of malicious or wanton destruction of the plaintiff’s property, or any actionable cause other than the described trespass, such damage, as far as this action is concerned, must he regarded as damnum absque injuria.

The judgment is

Affirmed.