that the road is in possession, will be barred by the statute of limitations.Blair v. St. Louis, H. & K. R. Co. (C. C.) 24 Fed. 539.

[c] (Ill. 1881) A railroad holding under a deed which conveys a use of so much of a street as may be necessary cannot be regarded as holding the entire street adversely to the public.-Pittsburg, Ft. W. & C. R. Co. v. Reich, 101 Ill. 157.

[d] (Ill. 1896) The effect of payment by a railroad, having color of title to a right of way through a section of land, of taxes assessed on the strip as a railroad track, is not avoided by prior payment by the paramount owner of taxes on the section, and the taking of a receipt for payment on the entire section, he in fact having paid no taxes on the part occupied by the railroad.-St. Louis, I. & E. R. Co. v. Warfel, 45 N. E. 169, 163 Ill. 641.

[e] (Ill. 1897) Where a strip of land condemned for a right of way was left uninclosed, and was claimed and used by the former owner and his grantees for more than 20 years, the right of the railroad company therein was barred by limitation.-Donahue v. Illinois Cent. R. Co., 46 N. E. 714, 165 III. 640.

[f] (Ill. 1897) A subsequent inclosure of land condemned for a right of way by a railroad company, and possession for seven years, will not give it title, under Hurd's Rev. St. c. 83, § 6, which provides that seven years' actual possession of land under claim and color of title made in good faith, and payment of taxes, shall create ownership, where it is not shown that the company listed the property for taxation, as required by its charter, and in which way only its property is taxable, but the land was taxed locally as a part of lots into which it had been subdivided, with contiguous property, and such taxes had been paid by another, claiming title under the original owner.-Donahue v. Illinois Cent. R. Co., 46 N. E. 714, 165 Ill. 640.

[g] (Ill. 1897) A railroad company which has occupied land as right of way, under a conveyance taken in good faith, for more than seven years, during which time it has kept it inclosed by fence, and has paid all taxes legally assessed against it, is the legal owner, under 2 Starr & C. Ann. St. p. 1539. § § 6. to the extent and purport of its paper title.-Chicago, M. & St. P. Ry. Co. v. Grant, 47 N. E. 750, 167 Ill. 489.

[h] (Ind. 1900) A railway company's construction of its tracks in a street, and their continued and peaceable use for 30 years with the knowledge and acquiescence of the municipality, raise a conclusive presumption of a grant.— Town of Newcastle v. Lake Erie & W. R. Co., 57 N. E. 516, 155 Ind. 18.

[i] (Ky. 1897) A railroad company, in 1853, obtained a deed from an owner of land granting a right of way, though neither the land nor right of way was described in the deed. The construction of the road was thereafter suspended, no work having been done on land of the grantor beyond surveying and staking the line. The land was sold, without any reservation of the right of way, in 1858; and the purchaser and his grantees inclosed and occupied the entire tract until 1886, when defendant railroad company, as successor of the one first named, constructed its road over the land. Held, that the making of a survey across the land by the railroad company in 1872, and the sending of a man to take possession of the right of way in 1877, which he did by walking over it, were not sufficient to establish re-entry, as against the continued and actual adverse possession of the occupants.-Maysville & B. S. R. Co. v. Holton (Ky.) 39 S. W. 27.

[j] (Ky. 1900) Defendant railroad company having been in the adverse possession of a right of way through plaintiff's land for more than 20 years, plaintiff cannot question the validity of its title thereto.-Fortune v. Chesapeake & O. Ry. Co., 58 S. W. 711, 22 Ky. Law Rep. 749.

[k] (Mo. 1885) A railroad company, by 10 years' adverse occupancy and use of a strip of ground, may acquire an easement therein.-Welsh v. Chicago, B. & K. C. Ry. Co., 19 Mo. App. 127.

[1] (Mo. 1898) The fact that a railroad company had used certain land without authority for a less time than the period of limitations does not render an entry by its grantee without the consent of the owner legal.--Ragan v. Kansas City & S. E. R. Co., 46 S. W. 602, 144 Mo. 623.

[m] (N. Y. 1890) Where the right of way of a railroad company expires with the life of the corporation, and the original company was dissolved by merger into a new company, which has operated the road for more than 20 years, the

46

new company acquires the right of way by adverse possession and user. Hun, 612 (1887), affirmed.-Miner v. New York Cent. & H. R. R. Co., 123 N. Y. 242, 25 N. E. 339.

[n] (N. Y. 1898) The defendant (a railroad company), before exercising its authority to lay its tracks along a proposed avenue, procured from the former owner of the land, who had already conveyed the same to the city, a deed purporting to convey a strip along the middle thereof to the company. The owner had already conveyed the abutting land to plaintiff's predecessor in title. The company then constructed on the strip, with permission of the authorities, an embankment, which for more than 20 years, and up to 1853, it occupied for the operation of its railroad. Held, that its claim had ripened into a title by adverse possession, as against the abutting owner, in so far as it had occupied the land up to that time.-Taylor v. New York & H. R. R. Co., 50 N. Y. Supp. 697, 27 App. Div. 190.

[o] (N. Y. 1898) In 1872 the Legislature required a change of grade, and authorized a change in the width and height of the embankment,—a change completed in 1875; and the embankment continued to exist without objection, except as subsequently increased in height, and to be used for the operation of the road, for more than 20 years. Held, that thereby the company acquired by adverse possession the right to maintain it to the extent to which it was used during that time.-Taylor v. New York & H. R. R. Co., 50 N. Y. Supp. 697, 27 App. Div. 190.

[p] (N. Y. 1900) A railroad company, in constructing its railroad in a certain street, first made in front of plaintiff's property an embankment, 28 feet wide at the bottom and 10 or 12 feet high, walled in with stone. Later, by statute, the embankment was converted into a viaduct, 56 feet wide and 7 feet high, in front of this particular property. This use of the property had continued for over 20 years, within the knowledge of plaintiff and her grantors. Held to constitute a right by prescription to the encroachment of light and air, to the extent of the user. Judgment (1899) 57 N. Y. Supp. 1053, 40 App. Div. 343, affirmed.-Lewis v. New York & H. R. R. Co., 56 N. E. 540, 162 N. Y. 202.

[q] (N. C. 1898) A railroad company cannot obtain title to a right of way over land by prescription, since it can obtain such easement through the exercise of its right of eminent domain, without the owner's grant or consent.Narron v. Wilmington & W. R. Co., 29 S. E. 356, 122 N. C. 856, 40 L. R. A. 415. [r] (Pa. 1903) Where a railroad, having the right to exercise eminent domain, took land as a purchaser from one holding adverse possession, its title became good when the combined adverse possession of the railroad company and its grantor exceeded 21 years.-Covert v. Pittsburg & W. Ry. Co., 54 Atl. 170, 204 Pa. 341.

[s] (Tex. 1894) Adverse possession and continuous use by a railway company of a strip of land for 18 years, as a right of way for the operation of its trains, creates an easement by prescription.-Texas & P. Ry. Co. v. Gaines (Civ. App.) 27 S. W. 266.

[t] (Tex. 1902) In 1877 the city council of San Antonio enacted an ordinance granting to defendant, for railroad purposes, the occupation of a tract of land belonging to the city, which tract had been granted to the city's predecessor by Spain for a common. Thereafter, in the same year, the council directed that the proceeds from the sales of the city's public lands should be used for school purposes. The city had then assumed control of the schools, and continued to do so, through its mayor and council, until 1900, when a board of trustees was provided for. Defendant, acting under the ordinance, took possession of the land, and continued in its peaceable possession for over 20 years. Held, that the railroad company acquired an easement in said land as against the city and the school board.-Board of School Trustees of City of San Antonio v. Galveston, H. &. S. A. Ry. Co., 67 S. W. 147.

[u] (Tex. 1902) The board of trustees for the schools, succeeding to the authority of the mayor and council in the management of the school affairs, was guilty of laches in permitting defendant to remain in the undisturbed possession of the land; and the perfection of the easement as against the city, the legal owner of the property, was gained irrespective of the destination of the proceeds from the sale of the land.-Board of School Trustees of City of San Antonio v. Galveston, H. & S. A. Ry. Co., 67 S. W. 147.

II. CLAIM OR COLOR OF TITLE UNDER WHICH ENTRY IS MADE.

[a] (U. S. 1887) Section 2186, Gen. St. Colo., provides, inter alia, "that every person in the peaceable and undisputed possession of lands or tenements, under claim and color of title made in good faith, who shall for five successive years hereafter continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her proper title." Held, that this provision will protect the title of a railroad company to a right of way taken and used as an easement, upon compliance with its conditions, although the condemnation proceedings were invalid for want of sufficient notice, and the owner of the fee was not estopped, by any knowledge of the occupancy, from maintaining an action of ejectment.-Keener v. Union Pac. Ry. Co., 31 Fed. 126.

[b] (Ala. 1888) Proceedings for condemnation of land instituted by a railroad company in the commissioners' court, even though invalid for irregularities of procedure, constituted color of title, under which the company could adversely hold the premises.-Mobile & G. R. Co. v. Cogsbill, 85 Ala. 456, 5 South. 188.

[c] (Ind. 1891) Where streets have been dedicated subject to a railroad right of way, a deed by the donor to the railroad company, granting the free use and occupancy of the streets "for such tracks, side tracks, switches, and turns as said company by its directors may think proper," gives color of title to the company, and its possession by the laying of one track is sufficient to preserve its right to lay the additional tracks whenever it sees proper.--City of Noblesville v. Lake Erie & W. Ry. Co., 130 Ind. 1, 29 N. E. 484.

[d] (Pa. 1901) A railroad company, which takes a deed of land for its right of way from a mere trespasser, cannot tack its possession of an easement thus acquired to the trespasser's previous possession, in order to make title under the statute.-Covert v. Pittsburg & W. Ry. Co., 18 Pa. Super. Ct. 541.

[e] (Tex. 1892) A railroad company which enters on another's land as a trespasser, and constructs and operates its road thereon, cannot acquire title to the fee by adverse possession, since its possession and claim is only of an easement for its right of way.-Texas W. Ry. Co. v. Wilson, 83 Tex. 153, 18 S. W. 325.

III. ADVERSE AND EXCLUSIVE CHARACTER OF CLAIM,

[a] (U. S. 1899) In 1849 the city of Cleveland granted to certain railroads the right to use a portion of a tract of land claimed as a street. Not long afterwards, in a suit against the railroads by an adverse claimant, defendants alleged their interest in the land to be that of licensee of the city, and successfully defended on the city's title under a prior dedication. Held that, on ejectment by the city to recover possession of such streets, the railroad companies could not successfully plead limitation, whatever may be the true construction of the contract under which they took possession, or the nature of their rights otherwise acquired, as by their own admission, in a sworn pleading, their holding was not adverse to the city, and it had the right to rely on such admission until notified that they claimed under a different tenure.-City of Cleveland v. Cleveland, C., C. & St. L. Ry. Co., 93 Fed. 113.

[b] (Ind. 1874) The ordinary use of a street by a railroad company, for its track and trains, being a use as a way only, can never, by any lapse of time, and even though continuous and exclusive, ripen into a title to the fee of the strip of land used. For it to gain such title upon the principles of adverse possession, it must appear that it occupied the land under a claim of ownership of the soil, and adversely to the use of it by the public as a street.-Indianapolis, P. & C. R. Co. v. Ross, 47 Ind. 25.

[c] (Minn. 1892) The possession of a portion of a street by a railroad company entering under authority given by its charter is not adverse to the public. where there is no exclusion of the public use.-Village of Wayzata v. Great Northern Ry. Co., 50 Minn. 438, 52 N. W. 913.

[d] (Minn. 1898) The mere construction, maintenance, and occasional use by a railroad company (which has no conveyance of the land) of an ordinary railroad track across a platted street while it still remains unimproved and

unfit for public use, and before public convenience or necessity requires it to be opened and improved for use as a street, does not constitute adverse possession, as against the public. Such occupancy must be presumed to be subject to the paramount right of the public.-St. Paul & D. R. Co. v. City of Duluth, 76 N. W. 35, 73 Minn, 270, 43 L. R. A. 433.

[e] (Miss. 1901) The use and occupation of a strip of land by a railroad company in the same manner and to the same extent as other unfenced parts of its road and right of way constitutes actual and exclusive possession, and, if continued for 10 years, is sufficient to confer title by prescription.-Sproule V. Alabama & V. Ry. Co., 29 South. 163, 78 Miss. 88.

[f] (Mo. 1896) An elevator company, by laying a track on a public levee to connect with a railroad, and by using the same 10 to 14 years, does not exercise such an exclusive and adverse use as to confer on it the exclusive right to the part of the levee occupied by the track.-Union Elevator Co. v. Kansas City Suburban Belt Ry. Co., 36 S. W. 1071, 135 Mo. 353.

[g] (Neb. 1892) A railroad company's possession is not adverse where both prior and subsequent to its entering it attempted to condemn the land, such efforts being a recognition of the owner's title. Hull v. Chicago, B. & Q. R. Co. (1887) 21 Neb. 371, 32 N. W. 162, and Id. (1888) 24 Neb. 740, 40 N. W. 280, followed.-Nebraska Ry. Co. v. Culver, 35 Neb. 143, 52 N. W. 886.

[h] (N. Y. 1891) In an action against an elevated railroad company for injury to a lot abutting on the street on which the road runs, the company pleaded title by prescription. The evidence showed that the original entry upon the street was merely experimental; that, during the 20-years possession relied on to establish the title, the road had been changed from a cable road to a steam railroad; that the original possession was taken when both parties were ignorant that the maintenance of the road interfered with the rights of the owners of abutting property; and that, after the expiration of said 20 years, the company instituted proceedings to condemn the lot owner's street rights. Held, that the evidence justified a finding that the company's possession was not adverse to the lot owner. 59 N. Y. Super. Ct. (27 Jones & S.) 175, 13 N. Y. Supp. 626, modified.-American Bank Note Co. v. New York El. R. Co., 129 N. Y. 252, 29 N. E. 302.

[i] (N. Y. 1891) The possession of a street by an elevated railroad company under a charter which provides that any private property used or acquired shall be compensated for by the company is not necessarily subordinate to the street rights of the owners of abutting property. 59 N. Y. Super. Ct. (27 Jones & S.) 175, 13 N. Y. Supp. 626, modified.-American Bank Note Co. v. New York El. R. Co., 129 N. Y. 252, 29 N. E. 302.

[j] (N. Y. 1900) Defendant and its predecessors in interest for a long time had occupied with tracks the city street on which plaintiff's lot was situated, plaintiff owning the fee to the middle of the street. No compensation was ever made to plaintiff for the use of the street, nor was the right to such use ever acquired from plaintiff. Defendant's entry on the street was under a license from the city, and there was no evidence that any claim was ever made of any rights in the street, except under such license. Held, that such occupation was not adverse to the plaintiff.-Monohan v. New York Cent. & H. R. R. Co., 66 N. Y. Supp. 37, 31 Misc. Rep. 619; Thoman v. Same, Id.

[k] (N. Y. 1903) An abutting owner sued an elevated road for damages to his easements of light and access, and proved that during the 20 years of its occupation the railroad company had admitted in its petition for correction of its franchise taxes that it must pay damages to abutting owners for their consent to its maintenance, and that it had settled with many of the abutting owners in plaintiff's neighborhood. Held, that such testimony was sufficient to defeat the claim of the railroad to have acquired the easements by adverse possession. Hindley v. Metropolitan Elevated Ry. Co., 85 N. Y. Supp. 561, 42 Misc. Rep. 56.

[1] (Or. 1904) A railroad company which enters and occupies a strip of land under permission of a municipality cannot thereafter claim that its occupancy was adverse.-Oregon City v. Oregon & C. R. Co., 74 Pac. 924.

[m] (Tenn. 1900) Occupation of right of way by the owner of the fee, so long as it is not required for railroad purposes, is not adverse, so as to start

the statute of limitations running against the railroad company.-Mobile & O. R. Co. v. Donovan, 58 S. W. 309, 104 Tenn. 465.

[n] (Tex. 1892) In an action to recover land used for more than 10 years by a railroad company as a right of way, testimony by one of the directors of the road that the company entered on the land expecting to pay for the right of way when called on by the owner in insufficient to show an intent to prescribe for an easement under a claim of right in the company, independent of and antagonistic to the owner of the land; and a finding by the court below that the company had failed to acquire an easement by prescription will not be disturbed.-Texas W. Ry. Co. v. Wilson, 83 Tex. 153, 18 S. W. 325.

[o] (Tex. 1893) Parol evidence of a former owner, showing a verbal gift of land to a railroad for right of way, although not admissible to establish an easement therein, is admissible for the purpose of showing that the possession of the railroad was adverse.-Shepard v. Galveston, H. & H. R. Co., 2 Tex. Civ. App. 535, 22 S. W. 267.

[p] (Tex. 1893) Possession by a railroad, under a verbal gift of a right of way, is sufficiently adverse to set in motion the statute of limitations.-Shepard v. Galveston, H. & H. R. Co., 2 Tex. Civ. App. 535, 22 S. W. 267.

IV. CONTINUITY OF OCCUPANCY AND ADVERSE CLAIM.

[a] (Minn. 1895) A petition by a railroad company to te city council for the vacation of certain streets and parts of a levee held by the company adversely to the city is such a recognition of the rights of the city in the property as to break the continuity of the adverse claim.-City of St. Paul v. Chicago, M. & St. P. Ry. Co., 63 Minn. 330, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458.

[b] (Neb. 1887) In ejectment against a railroad company for real estate occupied by it as a part of its right of way, the company pleaded the statute of limitations. Within the 10 years last preceding the commencement of the action the railroad company sought to condemn the property to its use under the provisions of the statute. These proceedings were instituted against the real owner by name, and the condemnation money deposited with the county judge for him. Held, that these proceedings amounted to a recognition of the ownership of the person against whom they were instituted, and would arrest the running of the statute, even though the proceedings themselves were void for want of jurisdiction.-Hull v. Chicago, B. & Q. R. Co., 21 Neb. 371, 32 N. W. 162.

[c] (N. Y. 1901) A suit begun by the owner of property abutting a street partly occupied by a railroad, to restrain an unlawful user of the street by the railroad company, which suit was discontinued, is not a disturbance of the railroad's user as then established sufficient to break it.-Campbell v. New York & H. R. Co., 71 N. Y. Supp. 1105, 35 Misc. Rep. 497.

[d] (N. Y. 1903) In an action by an abutting owner against an elevated railroad company for injuries to his easements of light and air, where defendant alleges adverse possession, a contention that the company's user was not continuous because during it the company was for some months in the hands of a receiver is not tenable.-Hindley v. Metropolitan Elevated Ry. Co., 85 N. Y. Supp. 561, 42 Misc. Rep. 56.

[e] (N. Y. 1903) An elevated company's adverse user as against abutting owners is not interrupted by alterations made by the company in the elevated structure necessitated by the continuance of the original use.-Hindley v. Metropolitan Elevated Ry. Co., 85 N. Y. Supp. 561, 42 Misc. Rep. 56.

[f] (Tex. 1892) In an action to recover land used by a railroad company as a right of way, evidence that more than 10 years before the suit was brought the company entered on the land, constructed its railroad, and began to operate its trains, is insufficient to show a prescriptive right in the railroad company to the easement, since such evidence does not show a continuous exercise and enjoyment of the right of way during the 10 years.-Texas W. Ry. Co. v. Wilson, 83 Tex. 153, 18 S. W. 325.

V. EXTENT OF RIGHTS ACQUIRED.

[a] (Ala. 1890) Where, in ejectment against a railroad company, defendant claims by adverse possession under color of title, consisting of defective con