TEXAS WESTERN R. Co. V. WILSON. (Texas Supreme Court, Jan. 26, 1892.) Right of Way-Acquisition of Title by Adverse Possession.-A railroad company cannot acquire title to the fee of land by adverse possession where it enters on the land as a trespasser, constructing and operating its road thereon, since such possession and claim are only of an easement for its right of way. Easement by Prescription -Continuous Occupancy-Sufficiency of Proof.— The burden of proot on a railroad company, claiming an easement by prescription in land occupied by it as a right of way, is not sustained by proof of its original and present occupancy, without proof that such occupancy has been continuous during the entire period necessary to confer title. Intent to Prescribe for an Easement-Sufficiency of Testimony to Show.-The intent of a railroad company to prescribe for an easement for a right of way over lands under a claim of right antagonistic to the lawful owner thereof, is not established by testimony of one of the directors that possession was taken during the owner's absence, and that the company intended to pay for the land when called on by the owner, there being no proof of any demand or refusal of possession or compensation. COMMISSIONERS' decision. Section A. Appeal from Harris District Court. Trespass to try title. Judgment for plaintiff, and defendant appeals. George H. Breaker, for appellant. Case stated. MARR, J.-This suit was brought upon the 2d day of September, 1886, in trespass to try title to recover of the defendant the possession of a 10-acre lot of land in the city of Houston, and the appellee, as plaintiff below, recovered that character of judgment in the district The appellant, among other defenses, pleaded the statute of limitation of 10 years, and also an easement acquired by prescription to so much of the land in controversy as constituted its right of way. To the remainder of the land it entered a formal disclaimer. court. There is but one assignment of error in the brief of the appellant, and that is to the effect that the court erred in rendering judgment for the plaintiff for the possession of the entire tract of land without establishing its right of way through the land. The appellant was a naked trespasser upon the land. It never sought to condemn the land in any No title by adverse pos session. of the modes prescribed by law in order to obtain the right of way, though it might have done this by a cross bill at the trial below, under the act of 1889. Act 21st Leg. p. 18. It has at no time made any compensation to the owner, as required by the constitution and laws in such cases. It must be held, therefore, that the appellant has acquired no right or title to the land in dispute, and, as a consequence, to a right of way therein, under the statute of limitation of 10 years; the possession and claim not being of that character as will perfect title to the land. This view of the law was expressly announced by the supreme court upon a similar state of facts in the case of Hays. Texas & P. R. Co., 62 Tex. 397, 23 Am. & Eng. R. Cas. 102, and we need only to refer to that decision as conclusive of the question. In that case the correct practice in suits of the character of the present action was indicated in the following language:" "A party in possession of another's land, claiming an easement, is a trespasser if his claim is without foundation. If, in a suit by the owner of the soil, the plaintiff shows title to the land, and the defendant to the easement, the plaintiff recovers, subject to the right of the defendant to enjoy the easement. If the defendant shows no title of this character, the owner of the land dispossesses him altogether." prescription. It remains to decide whether the appellant has acquired an easement in the land by prescription, or whether its "claim is without foundation." This is the controlling question in the case, and is really the only Easement by one presented by the assignment of error, strictly construed. As there are no conclusions of law and fact in the record, we are not advised of the reasons upon which the district court predicated its decision. If, however, its judgment can be sustained upon any reasonable view of the case as presented in the record, it is our duty to do so, and put an end to the litigation. The evidence is indefinite, and not very satisfactory, as to the exact time when the appellant entered upon the premises in controversy and constructed its roadbed; and in this particular the appellant is possessed of "the narrowest of margins." It may be that the court below for this reason held that the entry was not shown to have been made 10 years before the institution of the suit. But for the purpose of this case, and in the view we take of the effect of the evidence, we will conclude that the proof is sufficient to establish that fact. We may concede, also, that a railway company, as a mere trespasser, may, under the law, acquire an easement or right of way by prescription, though we are not required, under our estimate of the facts in evidence, to make an authoritative ruling upon that point in the present instance. There are authorities to that effect. Organ v. Memphis & L. R. Co., 51 Ark. 235, 39 Am. & Eng. R. Cas. 75; Sherlock v. Louisville N. A. & C. R. Co., 115 Ind. 22. is The doctrine is well established that the burden of proof upon the party claiming an easement in the land of another, without any contract or express grant thereto, to establish all of the necessary facts from which the right may be presumed in his favor. He must clearly show open and peaceable possession for the full period required under the statute to preclude a recovery of land against one having no other title, and with at least the implied acquiescence of the owner, and that during all of such time the use and enjoyment of the right has been exclusive, uninterrupted, and continuous, and under a claim of right adversely to the owner of the fee. If there is a failure to establish any of these essential elements by a preponderance of evidence, the claim to the easement cannot be maintained. Haas v. Chousard, 17 Tex. 589; Rhodes v. Whitehead, 27 Tex. 311; Midland R. Co. v. Smith, 125 Ind. 509, 44 Am. & Eng. R. Cas. 222; Washb. Real Prop. pp. 318, 321, 325, $$ 17, 20, 23; Washb. Easem. pp. 131-142; 3 Kent, Comm. p. 444; Ward v. Warren, 82 N. Y. 269. In this case we cannot hold that the judgment of the court below is without evidence to support it, (as must be done to authorize a reversal,) or is given against the preponderance of the testimony. It was shown, as we have conceded, that some time during the year 1875 or 1876 the appellant entered upon the land in dispute, and constructed its roadbed and railway track, and that "in the year 1876 the first 10 miles of the road were built and in operation, as "testified to by one of the witnesses. The railway is a narrow gauge road, and its track and roadbed is about 10 feet wide. The right of way was, as is claimed, 50 feet in width, but has never been fenced nor occupied, except to the extent of the roadbed. It was admitted that "the defendant was at the time of the filing of this suit, and is now, in the possession of the premises sued for." The premises sued for are the entire 10 acres of land. The petition alleges the entry in the year 1884. It was also proved by the defendant below that "no change was ever made in the line of the roadbed as now laid; that the road has continued in its present place until the present time, and that the track has never been removed since it was laid." This is the full extent of the evidence as to the user, and we think that it is clearly insufficient, considering "the nature of the easement," to show a continuous exercise and enjoyment of the right claimed for the requisite period of time. Mere possession of the land at certain times does not show an assertion and enjoyment of the easement. For aught that appears, no trains may have been run over the road, or any other use made of the track or right of way, by the appellant after the year 1876. We cannot presume these facts, but as we have already stated, it devolved upon the defendant to prove these by a preponderance of the testimony. Cooper v. Smith, 9 Serg. & R. (Pa.) 33; Emery v. Raleigh & G. R. Co., 102 N. Car. 209, 37 Am. & Eng. R. Cas. 253; Washb. Easem. p. 142, § 39. prescribe. We will next in order inquire whether the claim to and the exercise of the right (conceding it to have been exercised) was adverse to the owner of the land. The testimony of John T. Brady, one of the directors, No intent to affords the only proof bearing immediately upon the point. That part of his evidence to which we refer is as follows: That John Koops (the owner of the land) at the time "lived in Houston, but was away from the city," he thinks," when the road was built. We went on the land, and have never paid for the right of way. We expected and intended to pay for it when called upon at any time by the owner." There is no proof of any demand for possession or compensation, or a refusal thereof by the defendant, prior to the institution of this suit. We think that these facts do not show an intent to prescribe for a use and enjoyment of the easement under a claim of right in the defendant, independent of any antagonistic to the owner of the land. The inference might be drawn by the court below that the inception and user of the right of way was in subordination to the owner, and in recognition of his superior rights in the premises, and, if so, we cannot hold, under well settled rules of law, that the conclusion was unwarranted by the facts proved. A single act of acknowledgment by the defendant of the owner's title is fatal to the right. Washb. Real Prop. p. 322; Washb. Easem. p. 132, $$ 27, 28; Colvin v. Burnet, 17 Wend. (N. Y.) 564; Chance v. Branch, 58 Tex. 490; Thurmond v. Trammell, 28 Tex. 380, 381; Mhoon v. Cain, 77 Tex. 316, and cases cited. In view of what we have said upon the whole case, we have, in fine, reached the conclusion that the evidence is not of that satisfactory character which would have justified, much less required, the court to presume the grant from the owner of the soil of the right of way. Taylor v. Watkins, 26 Tex. 688. Without such presumption, an easement dependent entirely upon prescription cannot exist, and, consequently, we think that the judgment ought to be affirmed. PER CURIAM. Affirmed, as per opinion of commission of appeals. Acquisition by Railroad Company of Title by Adverse Possession.-See American Bank Note Co. v. N. Y. Elevated R. Co. (N. Y.) 50 Am. & Eng. R. Cas. 292; Miner v. New York, C. & H. R. Co. (N. Y.) 47 Id. 212, note 50 Id. 211; Erie & N. R. Co. v. Rosseau (Ont.) 46 Id. 539; Chicago & N. W. R. Co. v. Galt (Ill.) 44 Id. 43, and cases cited in note 50. Right of Way Across Railroad by Adverse User-Admission of Deed in Evidence. In Hoyle v. New York & N. E. R. Co., (Conn. Jan. 7, 1891) 22 Atl. Rep. 446, it appeared that a land owner conveyed a strip of land through his land to a railroad company; the deed provided that the company should permit the grantor to use the crossings "now made on said lands." An action was brought for obstructing the right of way, which the grantor claimed wholly on adverse user, and it was held that it was error to admit the deed in evidence to prove a right of way by adverse user, and the recognition of such right on the part of the grantee by accepting it. BLAKELY ข. CHICAGO, KANSAS & NEBRASKA R. Co. (Nebraska Supreme Court, March 23, 1892.) Right of Way-Grant to Railroad-Additional Servitude-Compensation.— A land owner executed a deed to certain lands to the R. V. Ry. Co. for 100 feet in width for right of way to said railway company, " its successors and assigns, for right of way, and for operating its railroad only." An assignee of the original grantee conveyed to another railway company 421⁄2 feet of its right of way across the plaintiff's land, thus making two roads upon such right of way. Held, that the second railway was an additional burden on the land, and plaintiff is entitled to recover. ERROR to Gage District Court. Ejectment. Judgment for defendant. Plaintiff brings er ror. Griggs & Rinaker for plaintiff in error. Stephen S. Brown and Hazlett & Bates, for defendant in error. MAXWELL, C. J.-In 1885, the plaintiff and her husband made a conveyance to the Republican Valley Railroad Company as follows: "Know all men by these presCase stated. ents, that Maggie C. Blakely, Nathan Blakely, of the county of Gage and state of Nebraska, in consideration of the sum of $1,900.00 in hand paid, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey unto the Republican Valley Railroad Company, its successors and assigns, for right of way, and for operating its railroad only, the following described real estate, situate in Gage county, state of Nebraska, to wit: A strip of land 100 feet wide, it being 50 feet on each side of the center line |