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Chicago, Milwaukee & St. P. Ry. Co. v. Snyder.

the relation, and a notorious assertion of right in himself, will be sufficient to change the character of his possession, and render it adverse to the grantee." 1 Cyc. 1039. The stipulated decree had all of the force and effect that a direct conveyance could have had, and the owner's continued possession of the land thereafter could by no possibility place him in a better position than he would have been in, had he executed and delivered a deed to the plaintiff. While the plaintiff was entitled to the possession and control of its right of way whenever it should deem it necessary to use it in the conduct of its business, it cannot be said, as a matter of law, that it might not consent to any use thereof which would not interfere with its duties to the public, and we find nothing in the record indicating that the possession or use of the yard by the defendants' grantors was in any way inconsistent with the plaintiff's right of possession or its necessities during the time in question. Slocumb v. The C., B. & Q. R. Co., 57 Iowa, 675, 11 N. W. 641.

Nor can the fact that before the final decree there was a promise not to disturb the owners' use of the yard change the rule above announced. The decree settled the parties' rights thereto, and clearly defined what they were, and all prior agreements were merged therein. The plaintiff had the right to rely fully thereon, and to presume that the owners' continued possession of the land was subservient to the easement created thereby. When the defendants bought, they were told that the yard was reserved from the right of way grant, and they continued in the possession and use thereof just as had their grantor. There was no change in the physical conditions, and no outward sign that they were making a greater claim thereto than he had made. Nor did the plaintiff have knowledge of the representations made to the appellants by their grantor. It then had the right to presume that the defendants' possession was subservient to its estate, as had been their grantor's; and unless there was some unequivocal act on the part of the defendants, brought home to the knowledge of the plaintiff, indicating a hostile intent, their possession was not adWe find nothing of this kind in the record. Slocumb v. The C., B. & Q. R. Co., supra. True, there was no reservation of

verse.

Chicago, Milwaukee & St. P. Ry. Co. v. Snyder.

the right of way in the defendants' deed, as was the case in Slocumb v. R. Co., but we are unable to see how this can affect the result, for, conceding that the defendants were holding under a good faith claim of right or title, they have failed to prove that their possession was adverse to or inconsistent with the plaintiff's right to the land whenever it became necessary for the proper convenience and use of its business.

This is so largely a fact case that we do not deem it necessary to review the cases cited in support of the contention of counsel. The judgment is affirmed.

Rights of owner of fee of railroad right of way; compensation to owner of fee where right of way is taken by telegraph company.In the case of Phillips v. Postal Teleg. Cable Co., 130 N. C. 513, 41 S. E. 1022, the plaintiff sought to recover compensation of the defendant for its use of the right of way of a railroad, the fee of which was in the plaintiff. The defendant contended that it had the right to use the right of way under the provisions of the Post Roads Act (U. S. Rev. St. secs. 5263-5268), and that it had acquired such right by the consent and upon payment of compensation to the railroad company. The railroad company had abandoned such right of way, and was no longer in possession thereof. The court held that the Post Roads Act did not authorize the telegraph company to acquire such right of way without compensation to the owner of the fee. It was also held that the use by the telegrauh company was an additional burden, and that the owner of the fee was entitled to compensation. In this connection the court said:

"The defendant again contends that as its poies are located on the right of way of the railroad company (that is, its potential right of way), and as it has acquired its easement from the railroad company by condemnation proceedings under the Code, it owes no further duty to the owner of the land. We cannot concur in this view. The land on which the poles are situated is not in the actual possession of the railroad company, and apparently never has been. On the contrary, it has been in constant cultivation by the plaintiff and those under whom he holds. The nature of the easement acquired by railroad companies under condemnation proceedings has been too recently considered by this court to require further discussion. Shields v. Railroad Co., 129 N. C. 1, 39 S. E. 582. In that case the court says, on page 4, 129 N. C. and page 583, 39 S. E.: 'It therefore seems to be the settled law in this State, so far as judicial construction can settle a question, that a railroad company by condemnation proceedings only acquires an easement upon the land condemned, with the right to actual possession of so much only thereof as is necessary for the operation of its road, and to protect it against contingent damages. It is not contended that the lines of the defendant are in any degree essential to the operation of the railroad. On the contrary, it is stated

Chicago, Milwaukee & St. P. Ry. Co. v. Snyder.

in the opinion of the court in the proceedings under which the defendant claims to have acquired its easement that 'the railroad company denies altogether that any benefit or advantage can arise to it in the erection of the telegraph lines, and, on the contrary, avers that it is detrimental to it in the last degree.' Postal Tel. Cable Co. v. Southern R. Co. (C. C.) 89 Fed. 190, 196. Under the circumstances, it is clear that the additional easement claimed by the defendant is an additional burden upon the land, for which the owner is entitled to just compensation. Atlantic & P. Tel. Co. v. Chicago, R. I. & P. R. Co., supra; Daily v. State, 5 Am. Electl. Cas. 186, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578; Telegraph Co. v. Pearce, 3 Am. Electl. Cas. 169, 71 Md. 535, 18 Atl. 910, 7 L. R. A. 200; Keasbey, Electric Wires, sec. 185. The Maryland case is an able and elaborate discussion of the entire question. The kindred question involving the same principle, of railroads upon streets, is fully considered in the well-known cases of Story v. Railroad Co., 90 N. Y. 122, 43 Am. Rep. 146, and Lahr v. Railway Co., 104 N. Y. 268, 10 N. E. 528, in which it was held that the abutting owners were entitled to compensation for the additional burden imposed upon the streets by the elevated roads. White v. Railroad Co., 113 N. C. 610, 18 S. E. 330, 22 L. R. A. 627, 37 Am. St. Rep. 639, is also a well-considered case in our own Reports."

"The plaintiff was not a party to the condemnation proceedings, nor have any proceedings been instituted against him by the defendant to acquire an easement or any other right. The defendant relies upon that part of section 2010 of the Code, which says: 'And if the use or right sought be over or upon an easement or right thereby, it shall be sufficient to give jurisdiction if the person or corporation owning the easement or right of way be made a party defendant.' Here the defendant stops, but the Code immediately proceeds to say: 'Provided that only the interest of such parties as are brought before the court shall be condemned in any such proceedings.' By the very terms of the statute, the plaintiff now stands as if no condemnation proceedings had ever been brought."

PART III.

CONTRACTS WITH MUNICIPALITIES FOR ELECTRIC

VOL. VIII-19

LIGHT.

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