after stating the ease. It is important that we should in the beginning ascertain the relief sought in this action. It is thus stated in the, prayer of the complaint: “That the defendant, its agents, officers, employees, servants, representatives and any person or persons acting by or under any contract or agreement with it, be perpetually enjoined from erecting and building platform and any other structure whatever or any part thereof within that boundary of land in the city of Hickory, Catawba County, North Carolina, referred to and described in Exhibit 'A/ which is a part of this complaint.” No other specific relief is demanded beyond the costs of the action. In our opinion the plaintiff was entitled thereto, irrespective of any question of nuisance, upon which we do not care to intimate an opinion. If that question is to be decided by this Court, it can be more clearly presented free from complications as to title to land.
The vital defect in the defendant’s ease is the assumption that its charter gives it a right of way including one hundred feet of land on each side of its track. The charter does not and could not give any land whatever except such as belongs to the State. All that it does, or pretends to do, is to give to the company the right to acquire by purchase or condemnation such lands as may be necessary for its essential purposes. It does not prescribe any fixed width for its right of way, for the evident reason that the company might need more land at one place than another; and that where the land was valuable, the company would not care to pay for more than it *200actually needed. The charter gives to the company “in fee-simple all lands belonging to the State over and through which the road may pass to an extent not exceeding one hundred feet on either side of said road.” Beyond this, it is evident that its charter contemplates that all lands taken but not freely given shall be paid for in full; and that an effort to purchase shall be made before condemnation. It expressly provides in section 29 that when the necessary lands "carniot be purchased from the owner or owners, the said company shall have the same powers to condemn all such lands belonging to individuals or corporations as may be needed for the aforementioned purposes, as were granted to and conferred upon the North Carolina Railroad Company by their act of incorporation, and shall proceed to condemn such lands in the same manner and to the same extent under the like rules, restrictions and conditions as are prescribed in the charter aforesaid.” The charter of the North Carolina Railroad Company gives it right of entry upon the lands so condemned only after payment to the owner of the land or into the office of the Clerk of the Court of the full amount of the assessed damages.
It is true the charter of the Western North Carolina Railroad Company provides that, “in the absence of my contract or contracts in relation to lands through which said road may pass, it shall be presumed that the land over which said road may be constructed, together with one hundred feet on each side thereof, has been granted by the owner or owners to the company, and said company shall have good right and title thereto, and shall have, hold and enjoy the same so long as it shall be used for the purposes of said road and no longer, unless the owner or owners shall apply for an assessment of the value of said lands, as hereinbefore directed, within two years next after that part of said road has been located,” etc. This creates the presumption of a grant, founded upon the *201idea that the continued failure of the owner for two years after the building of the road to bring an action for damages, would indicate that he had sold or voluntarily donated the land to' the company. We think his Honor properly construed the word “location” as meaning the physical location of the road, that is, the laying of its track, and this construction does not seem to be doubted by counsel. Any other would lead to the most absurd results. We know that many roads are surveyed and located that are never built, or built long years thereafter. To say that a railroad company can, by a mere abstract location of its route, without building its road, come twenty-five or thirty years thereafter and take private property, without the pretense of compensation, under an irrebuttable presumption resting merely on a row of rotten stakes, would be too great a strain upon judicial construction. However, this is not contended for by the defendant. It is admitted that the original deed was dated May 26, 1859, and that the said line of railway was constructed and said depot erected during the same year, but during what month does not appear. If this were material, the burden of showing when the road was built would rest upon the defendant, as the fact would necessarily be within its peculiar knowledge. But it is not material, as it is evident that the deed was, in any event, executed within two years after the building of the road, which prevents the presumption from ever arising under the express terms of the statute. The word “unless” used in thei act is thus defined by Webster: “Unless; upon any less condition than (the fact or thing stated in. the sentence or clause which follows) ; if not; supposing not; if it be not; were it not that.” The Century Dictionary defines the same, word as follows, omitting some secondary meanings: “If it be not that; if it be not the case that,” etc. These definitions clearly indicate a negative condition precedent, as much so as the condition *202in a mortgage that “unless” the money is paid, or “if it be not” paid by a certain day the land may be sold. If the money is paid on or before the day limited, the mortgagor is in no default whatever and the power of sale never arises.
The defendant has placed itself in the peculiar position of claiming both under the deed and under the presumption. We have seen that if there is a deed there can be no presumption. These are not inconsistent defenses but are inconsistent claims of right, under which, it seeks to maintain its easement. It is admitted that the fee to the land was in Ñobin-son, and if it did not pass out of him by virtue of the deed it must still remain in him or his heirs.
It appears- that the original deed was lost and that the deed of March 10, 1880, was executed and accepted, as a “duplicate” thereof. This is expressly stated in the duplicate deed which was accepted by the defendant and filed for registration on April 17, 1880. This is of course an admission of the execution of the original deed.
The defendant contends that (quoting from defendant’s brief) “it was not in tire power of the president of the road to part with the title which the ro-ad had acquired to the land under the first deed.” It does not appear that he did so. The first deed is not in the record. On the contrary it was admitted by the grantee to- have been lost or destroyed, and a duplicate deed accepted in lieu thereof. Both the defendant and the original grantee were corporations — artificial persons who were utterly incapable- of any action whatever except through agents. The law evidently contemplates that a railroad company shall have an agent to make and receive contracts as to the right of way, and in the absence of specific provisions to the contrary it seems, to us that those powers would come peculiarly within the duties of the president, the official head and general representative of tire company.
*203Tbe defendant also contends tbat the original grantee acted ultra vires in consenting to act as trustee. We do not think so, as it took the legal title in trust for itself as well as the public. It was not a naked trust, but one-coupled with a beneficial interest that was in furtherance of its essential purposes. But if it were otherwise it would not help the defendant, as no trust is permitted to fail merely for want of a trustee. This is common learning.
The record states that “The defendant in open Court agreed that it did not claim any part of the land described in the deed and the plats, except the main track and one hundred feet on each side from the center of the track, and that it stood ready to have it so decreed by the order of the Court.” It is difficult to discover what this means, unless it is an attempt to repudiate the deed under which the land was acquired, and after thus holding it for over forty-five years, create nunc pro tunc a presumption of a grant, which by the express provisions of the statute can never- arise in the face of a contract. This cannot be permitted.
We have cited no authorities, because the decision of the case depends upon the plain wording of the statute and of the deed. The defendant has nothing more than belonged to the original company, which, acquiring the land under a deed the mere existence of which prevented the presumption, holds in accordance with the terms of the deed which is its only muniment of title. Consequently there was error in the intimation of the Court below. As the facts are now presented to us, a permanent injunction should have been granted in accordance with the prayer of the plaintiff.
Error.