Summerlin v. Norfolk Southern Railway Co.
Summerlin v. Norfolk Southern Railway Co.
Opinion of the Court
Caswell Lee Summerlin, Jr. (“plaintiff’) seeks to compel Norfolk Southern Railroad Company (“defendant”) to construct and maintain a grade crossing across defendant’s railroad on plaintiff’s land. The trial court granted defendant’s motion for summary judgment. We affirm.
I. Background
In 1906, the Raleigh and Pamlico Sound Railroad Company conveyed to defendant all rights and lines of railroad, including existing lines and those under construction, extending from Raleigh and connecting Wake, Johnston, Nash, Wilson, Greene, Pitt, Craven, and Beaufort Counties.
In 1994, Nettie Horrell conveyed a tract of land (“Summerlin Tract”) by a non-warranty deed to Southland Enterprises of Eastern North Carolina, Inc. (“Southland”). Plaintiff was Southland’s president and executed a general warranty deed in that capacity granting him individually the Summerlin Tract in 1994.
Plaintiff filed suit to obtain a private grade crossing over defendant’s right-of-way and railroad lines on the Summerlin Tract to connect the tracts and provide him with direct access to the western portion of the property. Defendant moved for summary judgment on 2 July 2002 and attached an affidavit which states in part, “[s]aid tract claimed by plaintiff is not fenced nor enclosed.” The trial court granted defendant’s motion. Plaintiff appealed.
II. Issue
The sole issue is whether the trial court erred by granting summary judgment and concluding as a matter of law that defendant was not required to provide plaintiff a private grade crossing across its right-of-way and railroad lines.
III. N.C. Gen. Stat.. § 136-194
“An entry of summary judgment by the trial court is fully reviewable by this Court.” Roten v. Critcher, 135 N.C. App. 469, 472, 521 S.E.2d 140, 143 (1999). Rule 56 of the North Carolina Rules of Civil Procedure states that summary judgment will be granted “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). Plaintiff contends that N.C. Gen. Stat. § 136-194 requires defendant to construct and maintain a private grade crossing connecting the eastern and western portions of the Summerlin Tract as a matter of law.
North Carolina courts have refused to grant private individuals the right to direct a railroad where to locate its crossings. Id. at 378, 396 S.E.2d at 626. Our Supreme Court has recognized that a railroad does not have the right to obstruct an existing road. Tate v. R.R., 168 N.C. 523, 525, 84 S.E 808, 809 (1915). Defendant holds a right-of-way across plaintiffs property and has an affirmative duty to maintain its railroad. See Hartman v. Walkertown Shopping Center, 113 N.C. App. 632, 637, 439 S.E.2d 787, 791 (1994).
When the Summerlin Tract was conveyed to plaintiff, he took the property with record notice that no road or crossing existed to connect and provide access between the divided portions of the property. Plaintiffs affidavit asserted that “my property is completely enclosed by the lands of others . . . .” Evidence before the trial court showed plaintiffs land is “not fenced nor enclosed.” See Shepard v. R.R., 140 N.C. 391, 53 S.E. 137 (1906).
Plaintiff used Weyerhaeuser’s private road on an adjoining tract to gain access to the western portion of his property. When Weyerhaeuser gated this road, plaintiff was offered a key to gain access to the private road. He now seeks to compel defendant to provide a crossing for plaintiff’s sole benefit at no cost to plaintiff. Defendant does not have a duty to construct or allow a private crossing for plaintiff’s sole access to the western portion of the Summerlin Tract. This assignment of error is overruled.
Plaintiff’s property is not enclosed as required by N.C. Gen. Stat. § 136-194. Defendant is not legally required to construct, finance, or allow a private grade crossing to connect portions of the Summerlin Tract divided by defendant’s right-of-way. Harris, 100 N.C. App. at 378, 396 S.E.2d at 626. The trial court properly granted defendant’s motion for summary judgment.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.