Supreme Court of United States.
*180 Mr. F.W. Clancy for appellant. Mr. Felix H. Lester and Mr. Thomas N. Wilkerson were on his brief.
*181 Mr. Victor Morawetz and Mr. C.N. Sterry for appellees. Mr. E.D. Kenna and Mr. Robert Dunlap were on their brief.
MR. JUSTICE McKENNA, after stating the case, delivered the opinion of the court.
The right of way is granted to the extent of two hundred feet on each side of the railroad, including necessary grounds for station buildings, workshops, etc. What, then, is meant by the phrase "the right of way"? A mere right of passage, says appellant. Per contra, appellee contends that the fee was granted, or, if not granted, that such a tangible and corporeal property was granted, that all that was attached to it became part of it and partook of its exemption from taxation.
To support its contention, appellant urges the technical meaning of the phrase "right of way," and claims that the primary presumption is that it was used in its technical sense. Undoubtedly that is the presumption, but such presumption must yield to an opposing context, and the intention of the legislature otherwise indicated. Examining the statute, we find that whatever is granted is exactly measured as a physical thing not as an abstract right. It is to be two hundred feet wide, and to be carefully broadened so as to include grounds for the superstructures indispensable to the railroad.
The phrase "right of way," besides, does not necessarily mean the right of passage merely. Obviously, it may mean one thing in a grant to a natural person for private purposes *182 and another thing in a grant to a railroad for public purposes as different as the purposes and uses and necessities respectively are.
In Keener v. Union Pacific Railway, 31 Fed. Rep. 126, 128, Mr. Justice Brewer defined the words "right of way" as follows: "The term `right of way' has a twofold significance. It sometimes is used to mean the mere intangible right to cross; a right of crossing; a right of way. It is often used to otherwise indicate that strip which the railroad company appropriates for its use, and upon which it builds its roadbed."
Mr. Justice Blatchford said in Joy v. St. Louis, 138 U.S. 1, 44: "Now the term `right of way' has a twofold signification. It is sometimes used to describe a right belonging to a party, a right of passage over any tract; and it is also used to describe that strip of land which railroad companies take upon which to construct their roadbed." That is, the land itself not a right of passage over it. So this court in Missouri, Kansas & Texas Railway v. Roberts, 152 U.S. 114, passing on a grant to one of the branches of the Union Pacific Railway Company of a right of way two hundred feet wide, decided that it conveyed the fee. The effect of this decision is attempted to be avoided by saying that the distinction between an easement and the fee was not raised. The action was ejectment, and was brought in Kansas, and under the law of that State title could be tried in ejectment. Title was asserted by Roberts, who was plaintiff in the state court, and this court evidently considered it involved in the case. The language of Mr. Justice Field, who delivered the opinion of the court, would be unaccountable else. The difference between an easement and the fee would not have escaped his attention and that of the whole court, with the inevitable result of committing it to the consequences which might depend upon such difference.
Washburn in his work on Easements, on p. 10, says: "Whether the thing granted be an easement in land or the land itself may depend upon the nature and use of the thing granted." To sustain this view the learned author cites Jamaica Pond Aqueduct Corporation v. Chandler, 9 Allen, 159. In that case the court said: "Whenever a grant is made of a *183 right or easement in lands which fall within the class sometimes described as `non-continuous' that is, where the use of the premises by the grantee for the purpose designated in the deed will be only intermittent and occasional, and does not embrace the entire beneficial occupation and improvement of the land the reasonable interpretation is, that an easement in the soil, and not the fee, is intended to be conveyed. Among the most prominent of this class of easements is a way." An ordinary way, of course, the court meant, one the use of which would be non-continuous only intermittent and occasional; but a way not of that character, whose use would be continuous, not occasional, and which would embrace the entire beneficial occupation and improvement of the land, might require the fee for its enjoyment certainly would require more than a mere right of passage. "Unlike the use of a private way that is, discontinuous the use of land condemned by a railroad company is perpetual and continuous." New York, Susquehanna & Western Railroad v. Trimmer, 53 N.J.L. 1, 3.
But if it may not be insisted that the fee was granted, surely more than an ordinary easement was granted, one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property.
In Smith v. Hall, 72 N.W. Rep. 427, the Supreme Court of Iowa says, speaking of the right of way of a railroad: "The easement is not that spoken of in the old law books, but is peculiar to the use of a railroad which is usually a permanent improvement, a perpetual highway of travel and commerce, and will rarely be abandoned by non-user. The exclusive use of the surface is acquired and damages are assessed on the theory that the easements will be perpetual; so that ordinarily the fee is of little or no value unless the land is underlaid by a quarry or mine."
"The right acquired by the railroad company, though technically an easement, yet requires for its enjoyment a use of the land permanent in its nature and practically exclusive." Hazen v. Boston & Maine Railroad, 2 Gray, 574,580.
*184 In Southern Pacific v. Burr, 86 California, 279, the Supreme Court of California sustained an action of ejectment for land constituting a part of the right of way granted to the Central Pacific Railroad by the act of July 1, 1862, by language similar to the grant in the case at bar.
Distinguishing the case from Wood v. Truckee Turnpike Co., 24 California, 474, in which it was held that "a road or right of way is an incorporeal hereditament, and ejectment is maintainable only for corporeal hereditaments," the court said: "We think that case plainly distinguishable from this. Here there was a special grant of a right of way two hundred feet in width on each side of the road. This grant is a conclusive determination of the reasonable and necessary quantity of land to be dedicated to the public use and it necessarily involves a right of possession in the grantee, and is inconsistent with any adverse possession of any part of the land embraced within the grant. It is true the strip of land now actually occupied by the roadbed and telegraph line may be only a small part of the four hundred feet granted, but this fact is of no consequence. The company may at some time want to use more land for side tracks, or other purposes, and it is entitled to have the land clear and unobstructed whenever it shall have occasion to do so." The court quoted and approved the views expressed in Winona v. Huff, 11 Minnesota, 119, that for a mere easement perhaps an action of ejectment would not lie; but wherever a right of entry exists and the interest is tangible so that possession can be delivered, an action of ejectment will lie. The same distinction was made in New York, Susquehanna & Western Railroad v. Trimmer, supra, and the court said that if the interest of the railroad company was a naked right of way it would constitute no such right of possession of the land itself as would sustain the action; for such a right would be an incorporeal one upon which there could be no entry, nor could possession of it be given under an habere facias possessionem. In this case it was held that the interest taken by the railroad was not an easement.
The interest granted by the statute to the Atlantic and *185 Pacific Railroad Company, therefore, is real estate of corporeal quality, and the principles of such apply. One of these, and an elemental one, is that whatever is erected upon it becomes part of it. There are exceptions to the principle, but as we are not concerned with them, we need not state them. Applications of the principle to railroads are illustrated by the decisions of this court and by those of other courts. As to rails put down against him from whom purchased, Galveston Railroad v. Cowdrey, 11 Wall. 459; United States v. New Orleans Railroad, 12 Wall. 362; Thompson v. White Water Valley Railroad, 132 U.S. 68; even though the contract of purchase provided that the property should remain that of the vendor and he have a right to remove the same, Porter v. Pittsburg Bessemer Steel Co., 122 U.S. 267, and cases cited; in determining the relation of the rails to the right of way, Joy v. St. Louis, 138 U.S. 1. In this case Mr. Justice Blatchford said: "The track cannot be separated from the right of way, the right of way being the principal thing and the track merely an incident. A right of way is of no particular use to a railroad without a superstructure and rails; the track is a necessary incident to the enjoyment of the right of way." See also Palmer v. Forbes, 23 Illinois, 301; Hunt v. Bay State Iron Co., 97 Mass. 279; New Haven v. Fair Haven & Westville Railroad, 38 Conn. 422.
The principle has also illustrations in cases of taxation. People v. Cassity, 46 N.Y. 46; Appeal Tax Court of Baltimore City v. The Baltimore Cemetery Co., 50 Maryland, 432; Osborne v. Humphrey, 7 Conn. 335; Parker v. Redfield, 10 Conn. 490; Lehigh Coal & Navigation Co. v. Northampton County, 8 W. & S. 334; Chicago, Milwaukee & St. Paul Railway v. Crawford, 48 Wisconsin, 666; Richmond v. Richmond & Danville Railroad, 21 Gratt. 604; Mayor &c. of Baltimore v. Baltimore & Ohio Railroad, 6 Gill. 288; Osborn v. N.Y. & N.H. Railroad, 40 Conn. 491; Richmond & Danville Railroad v. Alabama, 84 N.C. 504; Worcester v. Western Railroad Corporation, 4 Met. 564.
It is urged, however, that the rule of construction declared in Vicksburg, Shreveport & Pacific Railroad v. Dennis, 116 *186 U.S. 665, and the cases there cited and approved, and repeated in Gazoo &c. Railroad v. Thomas, 132 U.S. 174; Wilmington & Weldon Railroad v. Alsbrook, 146 U.S. 279, 294; Keokuk & Western Railroad v. Missouri, 151 U.S. 301, 306; Norfolk & Western Railroad v. Pendleton, 156 U.S. 667, and Covington &c. Turnpike Co. v. Sandford, 164 U.S. 578, determines in favor of appellant's contention. That we do not think so is probably sufficiently indicated, but we cite the cases to preclude the thought that they have been overlooked, or that the rule announced by them is questioned. Indeed, we regard it as salutary, and not impaired by our decision which simply rests on the terms of the statute.
The decree is
Affirmed.
