after stating the facts: It is conceded that the deed from Maleom Mclnnis to John Beasley, under which plaintiff claims, covers the tract of land described in the complaint, over which defendant has constructed its tract and is now operating the business of a common carrier. The right of the plaintiff, therefore, to maintain this action depends upon the answer to the second issue, “Is the plaintiff the owner of the strip of land mentioned and referred to in the complaint?” His Honor instructed the jury to answer the issue “No.” In any aspect of the case this was error— doubtless inadvertent on the part of the Court and counsel. The utmost which defendant could claim under the deed'from Mclnnis to the improvement company, through which it de-raigns its title, is an easement to use so much of the strip of 130 feet as is necessary to construct and operate its road. Olive v. Railroad, 142 N. C., 257, and cases cited. No land is conveyed, but a “right of way” and easement. . The title to the land, subject to such easement, remained in Mclnnis and *275 passed to plaintiff. T'be real questions, however, presented in the record and argued before us are (1) the extent and character of the easement, and (2) whether it has been lost by abandonment. Plaintiff seeks in this action to recover damages, or, speaking more accurately, compensation for the entry upon his land and subjecting it to the burden of defendant’s railroad track. He concedes that the land may be subjected to the burden by defendant, in the exercise of the right of eminent domain, by proper proceeding. He alleges, however, that its entry was a trespass. Defendant, on the other hand, insists that by the deed from Mclnnis to the improvement company a perpetual easement passed, entitling the grantee and its successors to build, maintain and operate a railroad of standard gauge and used for the purpose of carrying freight and passengers. The solution of this question depends upon the construction of the deed. It will be observed that the charter of the improvement company was obtained under the provisions of the general law then in force (Code 1883, sec. 677), and not under statute providing for incorporating railroad companies. Chapter 49, section 677, expressly excepts from the corporate powers granted building railroads. The charter empowers the company “to build and operate, if necessary, tramways or other roads, not meáning railways.”

The deed from Mclnnis contains the following recital: “Whereas, the party of the second part contemplates building a tram or rail road,” etc. The words of the grant are: “a free right of entry, right of way, etc., for the purpose of locating said road, its depots, station houses, bridges, etc., necessary and convenient for the use, operating and business of said road.” Pursuant to this grant, made in 1890, the improvement company constructed a wooden tramway over the land. After using it some time, having mortgaged its property and easements, they passed into the hands of natural persons, who used it for .about two years, and “quit operating *276 it about 1900.” Thereafter the defendant corporation, conceded to have power to build and operate a railroad, as a common carrier, acquired such right as passed to the'improvement company, and proceeded to build and operate a railroad over the land owned by plaintiff. Before defendant acquired the easement the wooden tramway had practically disappeared — been burned or had rotted. It is manifest that the improvement company had no power to build or operate a railroad, and, therefore, no capacity to take and use an easement for that purpose. If it had attempted to do so, its acts would have been ultra vires, and, at the suit of the State, its charter forfeited. The deed, if construed to grant such power, would have been in such suit declared void, and as the consideration was contemplated “benefits” from the road, the easement would have been at an end. It is settled by the decisions of this Court, although held otherwise by the Supreme Court of the United States and other State courts, that the right to avoid the deed is confined to the State. Womack Private Corporations, sec. 132, et seq., where the authorities are collected and commented upon. We are of the opinion, however, that by a proper construction of the deed no easement passed other than the company was authorized to take and use. The words “tram or rail road” should not be so construed as to invalidate the grant. It may well be that they were used as synonymous. The word “railroad,” while in general use understood to signify a road constructed of cross-ties, upon which iron rails are placed, and dedicated to public use, under the general law regulating public highways, may well be construed, as used in the deed, as a private road, such as the improvement company was authorized to construct, with iron rails. So understood, it would be but a tramway, built of iron instead of wooden rails. This construction conforms to the charter and the evident intention of the parties, as manifested by their conduct. It is an elementary rule of construction that parties will be presumed to have used lan *277 guage effectuating a lawful purpose rather than one which is unlawful. We must assume that the owners of the Enterprise Land and Improvement Company intended to preserve the powers conferred by their charter rather than to expose their corporation to a suit by the State for acting ultra vires. We have construed such grants of easements to railroads as conveying no more than may be reasonably within the contemplation of the parties. Hodges v. Tel. Co., 133 N. C., 225. Illustrating the principle, Redfield, C. J., in Hill v. Railroad, 32 Vermont, 68, says: “A contract to convey land for a particular use, or to a party having capacity to acquire a certain estate in land for a particular use, must of necessity carry the implication of such limitation upon the estate to be conveyed.” The grant of such easement as is necessary or. convenient for the operation of “said road” should be confined to such “tram or rail road” as the charter authorized the grantee to construct and operate. As said by Battle, J., in Railroad v. Garrison, 85 S. W., 81 (Ark.) : “The right of way for a tramway does not imply the right to construct and operate a railroad. The owner of the land might be willing to waive compensation for the first, when he would not for the latter.” It is a matter of common observation that tramways or, as sometimes called, railroads constructed by lumber companies for a temporary purpose, destroying but little timber, requiring no cuts or fills, are of little damage to lands. Many persons, either for some benefit accruing, or to aid and encourage improvement, give such right of way, who would be surprised to find that they had thereby imposed a' permanent burden upon their lands, with much larger powers and much greater injury incident to the building and operation of a railroad than they contemplated. In this case it is in evidence that at the time plaintiff purchased the land the tramway had disappeared — there was nothing more than a “wagon road” where the tramway had been. We think that it would be doing violence to the language of the charter of *278 tbe improvement company, tbe language of tbe deed and tbe intention of tbe parties to bold that a permanent easement for tbe construction and operation of a railroad was granted. By construing tbe language of tbe deed as granting a right of way for a tramway we avoid these difficulties and relieve tbe land of a burden which tbe company bad no right to impose .and which we do not think tbe grantor intended to create. This view of tbe case renders it unnecessary to discuss a number of interesting questions raised upon tbe record. Tbe plaintiff is entitled to recover of defendant a fair compensation for tbe injury done bis land by entering upon it and constructing tbe railroad. When this is fixed and paid, tbe defendant will acquire tbe easement to use tbe land in tbe same manner, for tbe same purpose and to tbe same extent as if it bad acquired tbe easement by condemnation. Brown v. Power Co., 140 N. C., 333.

We think that there was evidence proper to be submitted to tbe jury upon tbe question of abandonment of tbe easement, but, as tbe view which we take of tbe record entitles the plaintiff to recover, it is unnecessary to discuss that question. There must be a

New Trial.