Since the plaintiff holds the fee title, he is, of course, the owner, nor did he need to bring any suit to quiet his title. Kansas C. R. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190. One whose property is subjected to condemnation for railway or other public uses is none the less the owner of the fee and holder of

Adverse possession-eminent

use fee.

the ultimate title. He has what the domain-right to law calls the servient estate. The party for whose use the condemnation was made has what is called the dominant estate. And, while the fee holder, after condemnation and compensation, may not interfere with the rights of the holder of the dominant estate, yet as owner he may still continue to use the property for any purpose which does not frustrate the public aims and ends for which the property was condemned. If gold, diamonds, or other minerals lay beneath the main line of this railway within the hundred-foot limit now actually used for railway purposes, these minerals would belong to the plaintiff, and he might mine for them so long as he did not interfere with the operation of the railway nor imperil the surface support. Missouri, K. & N. W. R. Co. v. Schmuck, 69 Kan. 272, 76 Pac. 836. If the railway at Osborne should be abandoned or relocated elsewhere than on plaintiff's property, the dominant estate would terminate, and the defendant's rights acquired by condemnation would terminate and revert to the plaintiff.

It was not necessary for the condemnation commissioners in 1879 to limit the amount of land to be condemned for railway purposes to the actual acreage required at that time. In the exercise of their discretion they could look to the future, and to the gradually expanding need for switchyards, sidings, workshops, and the like, and condemn such amount as seemed reasonable to them. Nor was this any hardship on the owner. He was paid for the land taken; and yet he and his suc

cessors in title, down to and including the plaintiff, have none the less enjoyed the possession, emblements, and profits of most of the condemned property for all these years. Of course, so long as the railway company did not need all the property condemned, the successive fee title holders were strictly within their rights in oc

-use of prop

cupying and using erty taken for it. But, since they public use. were within their rights in using and occupying the property, and because hitherto the defendant and its predecessors have not needed all the property condemned in 1879, there could be no such thing as adverse or inconsistent use, nor could there be adverse possession for 15 years so as to found an independent title, and thus bar the railway company of its rights acquired by condemnation. Before the 15 years' bar could give rise to a right to exclude the defendant, it would be necessary to show that during that time the plaintiff had occupied the property to the prejudice of the defendant; that the defendant during that interval had needed the property for railway purposes, but had been excluded therefrom by the plaintiff or his predecessors in title. It was not necessary for the railway company to make some pretended use of all the condemned property, to the exclusion of the successive fee title holders, in order to preserve its rights. The defendant was not required to clutter up the outlying portions of the tract with old ties, rails, or other junk merely to assert its dominant estate and discommode the owner of the fee. Such mere pretended use would have been an invasion of the rights of the fee title holder, who always had and still has such rights of enjoyment, use, and possession as do in no way impair or interfere with the proper, safe, convenient, and efficient discharge of the defendant's duties as a public carrier. In Union P. R. Co. v. Kindred, 43 Kan. 134, 136, 23 Pac. 112, it was said: "In Kansas C. R. Co. v. Allen, supra, this court decided that,

where the railway company has only an easement, the proprietor of the soil retains the fee of the land, and his right for every purpose not incompatible with the rights of the railway company. This rule is recognized everywhere. Although the abutting landowners have cultivated and inclosed part of the right of way granted by Congress, this possession cannot be considered as hostile or adverse. If the abutting landowners own the fee of the right of way, they may use the land in any way not inconsistent with the paramount rights of the railway company; but such use will not give them adverse possession so as to confer title."

In Kansas & C. P. R. Co. v. Burns, 70 Kan. 627, 629, 79 Pac. 238, it was said: "The right acquired by a railroad company by condemnation proceeding for right of way, depot grounds and terminal facilities dominates every right of possession, except as to the owner of the fee, and he may use only that portion which is not in immediate use by the company, and not necessary to the safe and convenient use of that which is in actual service."

We recognize that this case is not necessarily controlled by those decisions which have had to deal with the rights of occupants of unused portions of the rights of way granted by Congress to the Pacific railroads, like Missouri, K. & T. R. Co. v. Watson, 74 Kan. 494, 14 L.R.A. (N.S.) 592, 87 Pac. 687, and Union P. R. Co. v. Davenport, 102 Kan. 513, 170 Pac. 993; and we note, also,

that there are two opposing lines of authorities on the present question (2 C. J. 225, 226; 1 R. C. L. 737, 738, and citations); but when it is kept in mind that these condemnation proceedings are authorized not as a mere special privilege to the persons who form the railway corporation nor for its private profit, but are in fact an exercise of the state's power of eminent domain to provide the public with a modern system of transportation and a modern commercial highway, it seems more logical to hold that rights acquired under such proceedings are not lost through lapse of time and nonuse, so long as the railway has a potential need of them, and, where there has been in fact no adverse, hostile, inconsistent use, nor prejudicial exclusion of the holder of the dominant estate. If at some future time the hitherto unused property condemned in 1879 should be required for railway purposes, it would seem illogical to say that the state's power of eminent domain would have to be reinvoked, and that condemnation proceedings would have to be undertaken again. If the property in dispute is never needed for railway purposes, the plaintiff remains not only the owner of the fee, but will continue as heretofore to possess and enjoy it. Under the circumstances, however, he has established no cause of action against the railway company.

Reversed and remanded, with instructions to enter judgment for defendant.

All the Justices concur.

I. Introductory, 303.

I. Introductory.

This annotation is supplementary to

the note on the same subject in Ann. Cas. 1916D, 1186, and earlier notes,

and the annotation in L.R.A.1916B, 657, and reviews only the cases that have been reported since the publication of those notes.

The division in opinion that was shown in the earlier annotation still exists in the later decisions on the subject in question.

II. View that title may not be acquired by adverse possession.

In some jurisdictions the holding is that, a railroad right of way being held for a public use, title to it cannot be devested by adverse possession. Edholm v. Missouri P. R. Corp. (1926)

Neb., 211 N. W. 206; St. LouisSan Francisco R. Co. v. McBride (1924) 104 Okla. 216, 231 Pac. 284; Pennsylvania R. Co. v. Guthrie (1917) 66 Pa. Super. Ct. 470; Holmes v. Public Serv. Commission (1922) 79 Pa. Super. Ct. 374; Atlantic Coast Line R. Co. v. Searson (1926) 137 S. C. 468, 135 S. E. 567. See Southern R. Co. v. Vann (1919) 142 Tenn. 76, 216 S. W. 727. And see Atlanta & C. Air Line R. Co. v. Limestone Globe Land Co. 109 S. C. 444, 96 S. E. 188, which was decided on the ground that the acts of the claimant did not constitute adverse user.

In Edholm v. Missouri P. R. Corp. (Neb.) supra, it appeared that the plaintiff sued to quiet title to certain tracts of land which were within and constituted part of the defendant railroad company's right of way. Plaintiff based his claim for title on continuous, hostile, and adverse possession of the tracts in question for a period of over ten years preceding the commencement of the suit. The court holds that railways which acquired their right of way by eminent domain acquired that right for public use, and, where there has not been a full abandonment of the right of way, title thereto cannot be devested by adverse possession.

In St. Louis-San Francisco R. Co. v. McBride (1924) 104 Okla. 216, 231 Pac. 284, supra, the court held that, in view of the Oklahoma Constitution declaring railroads to be public highways, adverse possession would not run against a railroad right of way. It

appeared in this case that the land involved had been originally acquired by the railroad from the Chickasaw and Choctaw Indian tribes. In passing on this point in relation to devesting the railroad of its right of way by adverse possession, the court said: "The title to this land was in the Chickasaw and Choctaw Nations, subject only to the use for which it was granted to the railroad company, whether we call it an easement or a limited fee: whenever the railroad ceased to use the land for that purpose, the land would revert to the Chickasaw and Choctaw Nations, and not to the defendant in this action. The contention of defendant is that he acquired title to this land against the Chickasaw and Choctaw Nations by adverse possession. Of course, this contention cannot be sustained by any court. It is an elementary proposition that adverse possession does not run against the public lands of the government, nor does it run against the lands of Indian tribes."

In Holmes v. Public Serv. Commission (1922) 79 Pa. Super. Ct. 374, supra, the court said: "Being the original right of way of such railroad at that location, and thus dedicated to a public use, title could not be acquired to any part of it by adverse possession."

In some jurisdictions it is expressly declared by statute that no railroad company may be devested of its right of way by adverse possession. Hurlbut Rogers Machinery Co. v. Boston & M. R. Co. (1920) 235 Mass. 402, 126 N. E. 789; Boston & A. R. Co. v. Reardon (1917) 226 Mass. 286, 115 N. E. 408; Central Vermont R. Co. v. Bowers (1926) Vt., 134 Atl. 608.

In Central Vermont R. Co. v. Bowers (Vt.) supra, the court said: "It remains for us to consider whether the defendant has acquired title to the disputed premises by adverse possession. One cannot acquire title by adverse possession to land belonging to a railroad company, where such land lies within the limits of the roadway of such corporation as recorded in the town clerk's office. Gen. Laws, § 5073. It is to be observed that this statute

does not require that the land be within the original location of the road. The 'roadway' is held to include such lands taken by the corporation contiguous to the center line of the road as shown by the record in the town clerk's office, as the corporation could lawfully take for the purpose of its roadway by condemnation proceedings. . . . That this land could be taken for railroad purposes under plaintiff's charter rights cannot well be doubted, for it had the right to take possession and use all such land and real estate as might be necessary for the construction of its road and the accommodations requisite and appertaining to the same. No. 53, Acts 1843, § 7. In the circumstances shown by the record, it will be presumed that this land came within this provision of the charter.

... It was contiguous to the recorded survey, was within the description of the deeds which were properly recorded, and was a part of the road-. way 'as recorded,' within the meaning of the statutes, though without the 6rod location fixed by the original survey. That this land was acquired by deed rather than by right of eminent domain cannot affect its character or the right of the company in respect to its use."

Where the right of way is obtained by congressional grant, the courts hold that title thereto cannot be devested by adverse possession, as the right so granted is inalienable. Crandall v. Goss (1917) 30 Idaho, 661, 167 Pac. 1025; Etheredge v. Chicago, B. & Q. R. Co. (1921) 105 Neb. 778, 181 N. W. 928. And see St. Louis-San Francisco R. Co. v. McBride (1924) 104 Okla. 216, 231 Pac. 284. See also Northern P. R. Co. v. McDonald (1916) 91 Wash. 113, 157 Pac. 222, infra, III., as an exception to the rule that title may be acquired by adverse possession.

In Etheredge v. Chicago, B. & Q. R. Co. (Neb.) supra, the court said: "The only question involved herein is whether the lands granted by the government, as in the instant case, can be acquired by adverse possession. The evidence discloses that at the time of the grant to the railroad company the 50 A.L.R.-20.

land in controversy was public land; that the grantors of the defendant constructed a line of railroad over the right of way granted, and trains have been operated continuously on and over the same, but not immediately on the part of the right of way herein involved. Where the right of way has been acquired by grant from the general government to public lands, and the railroad is built and in continuous operation over the lands so granted, title cannot be acquired to any portion of the same by adverse possession or by nonuser of a portion thereof."

So, it has been held that, where the right of way has been acquired by a grant from the state, it is inalienable and cannot be devested by adverse possession. Seaboard Air Line R. Co. v. Special Road & Bridge Dist. (1926) Fla., 46 A.L.R. 870, 108 So. 689. III. View that title may be acquired by adverse possession.

In general.

In many states the courts hold that title to a railroad right of way may be devested by adverse possession. Raton v. Pollard (1920; C. C. A. 8th) 270 Fed. 5; Mobile & O. R. Co. v. Strain (1921) 125 Miss. 697, 88 So. 274; Northern R. Co. v. Demarest (1919) 94 N. J. L. 68, 108 Atl. 376; Texas & P. R. Co. v. Belcher (1920) Tex. Civ. App. 226 S. W. 471; Gulf, C. & S. F. R. Co. v. Bluitt (1918) Tex. Civ. App. 204 S. W. 441; Netherlands American Mortg. Bank v. Eastern R. & Lumber Co. (1927) Wash. 252 Pac. 916. Compare Northern P. R. Co. v. McDonald (1916) 91 Wash. 113, 157 Pac. 222, as to railroad lands acquired by congressional grant.

In Raton v. Pollard (Fed.) supra, the court said: "The general and approved rule is that title may be gained by adverse possession to portions of a railway company's right of way."

In Northern R. Co. v. Demarest (1919) 94 N. J. L. 68, 108 Atl. 376, supra, the court said: "Plaintiff's title to the premises having been proved, it was entitled to possession unless defendant had acquired a better right, and to establish that allegation defendant's claim was that he had ac

quired title by adverse possession. There can be no question that, if the defendant could maintain by adequate proof a title by adverse possession, his right to possession would be complete, even as against the plaintiff, exercising a quasi public function under legislative authority."

And the court in Mobile & O. R. Co. v. Strain (1921) 125 Miss. 697, 88 So. 274, supra, said: "To those lands of a railroad company not actually necessary for the operation of the railroad, title by adverse possession may be acquired."

So, in Netherlands American Mortg. Bank v. Eastern R. & Lumber Co. (Wash.) supra, the court said: "Adverse title can be gained to land granted and conveyed as a railroad right of way, but the adverse possession must be such as is inconsistent with the exercise of the right of way easement."

Requisites of possession.

In those jurisdictions wherein the right to acquire title to a railroad's right of way by adverse possession is recognized, all the requisites of such adverse possession must be present and proved. So, where the possession. is permissive or apparently permissive, it follows that the possession is not hostile, and title cannot be acquired. Western U. Teleg. Co. v. Atlanta & W. P. R. Co. (1917; D. C.) 243 Fed. 685; Elberton Southern R. Co. v. Canon Oil & Fertilizer Co. (1922) 154 Ga. 436, 114 S. E. 885; Beyer v. Chicago, R. I. & P. R. Co. (1919) 186 Iowa, 1133, 169 N. W. 651, 173 N. W. 87; France v. Chesapeake & O. R. Co. (1916) 170 Ky. 188, 185 S. W. 615; McCran v. Erie R. Co. (1921) 93 N. J. Eq. 286, 116 Atl. 103, modified on other ground in (1924) 95 N. J. Eq. 653, 124 Atl. 50; Northern R. Co. v. Demarest (1919) 94 N. J. L. 68, 108 Atl. 376; Netherlands American Mortg. Bank v. Eastern R. & Lumber Co. (Wash.) supra.

In Elberton Southern R. Co. v. Canon Oil & Fertilizer Co. (1922) 154 Ga. 436, 114 S. E. 885, supra, the court said: "The evidence for the defendant tended to show that the common grantor occupied a portion of the right of way granted to the railroad

company, after such grant, up to a line 50 feet from the center of the track and running parallel therewith; but it also showed that the railroad company permitted the public generally to so occupy that portion of the right of way. Such possession would be permissive only, and of course, not being adverse, would not constitute a basis for prescriptive title."

So, it was said in McCran v. Erie R Co. (1921) 93 N. J. Eq. 286, 116 Atl. 103, supra: "So far as the alleged prescriptive right to the use of the bridge by pedestrians is concerned, I feel that the right to cross the bridge has not been established, although it has been in use by the public for many years. There were signs on the bridge forbidding them to cross. Furthermore, the use referred to was unlawful. Section 55 of the Railroad Act (Comp. Stat. p. 4245) provides that 'it shall not be lawful for any person other than those connected with, or employed upon, the railroad, to walk along the tracks of any railroad except when the same shall be laid upon a public highway.' At most, the use of the footpath, primarily provided for the convenience of the railroad employees, was permissive only as to others. If originally permissive, it could not ripen into a prescriptive right."

In Netherlands American Mortg. Bank v. Eastern R. & Lumber Co. (1927) Wash., 252 Pac. 916, supra, the court said: "Every use the party in possession made of the land was perfectly consistent with his own actual rights, and perfectly consistent with respondent's granted rights. There is nothing in clearing, fencing, cultivating, and cropping of the land. which gives notice of an intent to deny to the respondent the right to extend its logging road across the land whenever its needs call for such action, and the presumption will be that these things were done by permission, until the contrary appears."

The possession and use by the claimant must be exclusive, to make adverse possession effective. In Alabama & V. R. Co. v. Joseph (1921) 125 Miss. 454, 87 So. 421, it appeared that the tracks of a railroad crossed a city street at