9 Q. B. D. 424, it was held by DENMAN, J., that the mere fact that land of a railway company is required for the purposes of their undertaking, and is not superfluous land, does not prevent an occupier who has had exclusive adverse possession for twelve years from becoming thereby entitled to the land under the Statute of Limitations. No doubt the case did not in the end turn upon that point, but it was very carefully considered by the learned judge, and the plaintiffs have not in my opinion succeeded in showing that he was wrong. I refer also to Norton v. London and North Western R. Co., 13 Ch. D. 268. The right of the reversioner at the termination of the lease in perpetuity is not a matter which either of the parties need greatly concern themselves with at present. As regards the plaintiffs' interest in the land I think it is gone, and the appeal should therefore be dismissed. The reasons of appeal suggest that the Limitation Act is ultra vires the Provincial Leg. islature as regards the plaintiffs. I only refer to this to say that the point was not argued, and calls for no observations. Title Against Railway Company by Adverse Possession.-See note 43 Am. & Eng. R. Cas. 577; Fisher v. New York, etc., R. Co. (Mass.), 17 Id. 80; Fitchburg R. Co. v. Page (Mass.), 7 Id. 86; Carolina Central R. Co. v. McCaskill (N. Car.), 25 Id. 83; Smith v. New York, etc. R. Co. (Mass.), 25 Id. 205; Canada Southern R. Co. v. Lewis (Ont.), 20 Id. 196. Right of Way by Prescription Over Land Acquired by Railroad From State.In Pennsylvania R. Co. v. Borough of Freeport, 138 Pa. St. 91, the supreme court of Pennsylvania affirmed a judgment of the lower court awarding a preliminary injunction on a bill filed by a railroad company against a borough and its officers, to restrain defendants from interfering with the laying of a second track upon land acquired by the plaintiff company's lessor from the commonwealth, but which had been permissively used as a passage way by the public for more than twenty-one years. The court said: "It would be unreasonable to hold that the mere non-user of a part of a railroad location, side by side with the part in actual continuous use, and embraced in the original grant, would revert to the public simply because the public had enjoyed a permissive, not a hostile, use of this contiguous ground. We think the construction of a track or tracks upon a part of the location throughout its length is the best assertion of right to the entire width that could, in the nature of railroad construction and operation, be demanded. By the side of every railroad track extending throughout the country, beaten paths may everywhere be found daily used and traveled upon by the public, and enjoyed as the easiest and most convenient thoroughfare; for such in reality they become. And yet the thought is never entertained that the public, by the most constant and continuous use of such ground, acquires an indefeasible title to it. The reason is palpable. The presence of the railroad tracks constantly in use is the defiant badge of ownership. It is the only practical assertion of title that can be made. The rule does not differ, because the location of a road is through a more populous district, in this case through a borough, whose citizens have availed themselves of the convenience of using the ground along the railroad track notwithstanding the railroad ties and rails of the company may not have spanned and bound literally with an iron grasp from one side to the other, its authorized domain." WATSON v. CHICAGO, MILWAUKEE & ST. PAUL R. Co. (Minnesota Supreme Court, June 11, 1891.) Donation of Land to Railway-Reservation on Town Plat.-On the town plat of the town of Wells was left, undivided into lots, a strip of land on which were the words, "Reserved for right of way, line of S. M. R. R." Held, that this was not, under Gen. St. 1878, chap. 29, § 5, a donation of the land to the railroad company. Following Commissioners of Hennepin County v. Dayton, 17 Minn. 260. Dedication of Land to Railway Company.-A common-law dedication of land cannot be made to a railroad company for public use for railroad purposes. Reformation of Deed-Parties.-A deed conveying real estate cannot be reformed in an action to which the owners are not parties. Oral Agreement to Convey-Recovery of Real Estate.-An oral agreement to convey real estate, where acts of part performance are not done pursuant to and relying upon it, will not prevent a recovery of the real estate by the owner. Ejectment against Railroad Company.-An owner upon whose land a railroad company has, without making compensation or acquiring the right in any other way, constructed its railroad, and whether it did so with or without his acquiescence, and whether it did so before or after the passage of Gen. St. 1878, chap. 34, § 33, may bring ejectment to recover the land Same-License to Enter-Damages.-Defendant entered upon land by license of the owner, which was revoked by his death, but defendant still retained the possession. Held, proper to allow as damages the mesne profits from the time of the death. APPEAL from District Court, Faribault County. Eller & Haw, for respondent. presented. GILFILLAN, C. J.-There are two principal questions in the case-First. Was there a statutory donation or grant of the land in controversy to the defendant by Clark W. Thompson, by means of the plat of the town of Questions Wells? Second. May a railroad corporation acquire an easement in lands by a common-law dedication of it to public use for railroad purposes? For, if the second question be answered in the affirmative, there can be no doubt of the defendant's title, as the facts found are sufficient to establish a dedication. The first of these questions is really covered by the decision in Commissioners of Hennepin County v. Dayton, 17 Minn. 260. The statutes (Gen. St. 1878, chap. 29, § 5) pro Donation by vides that," when the plat is made out, certified, acknowl edged, and recorded as required by this chapter, every donation or grant to the public, or any indimeans of plat. vidual, religious society, or to any corporation or body politic, marked or noted as such on said plat, shall be deemed, in law and equity, a sufficient conveyance to vest the fee-simple of all such parcels of land as therein expressed," etc. Such a donation or grant must be evidenced wholly by the plat. It cannot rest partly upon the plat and partly in parol, any more than can a conveyance by deed. The intent to donate or grant must appear from the plat itself. In the case referred to, there was, upon the plat of the town of Minneapolis, a block not divided into lots, on and across which were placed the words "County Block." The court held the intent to donate to the county not to be sufficiently indicated, and said of those words: "They might furnish ground for a conjecture that the proprietors had either given or granted the block to Hennepin county, or that they had reserved it with the design of giving it to the county at some future time. But there must be more than a ground for any conjecture, even if it were not in the alternative. The donation or grant must be marked or noted as a donation or grant. There must be some marking or note upon the plat, clearly expressing, in some way, that a designated piece of land is given or granted to a designated owner or grantee." So in this case the words marked on the strip of which the land in controversy is a part, "Reserved for right of way, line of S. M. R. R," might furnish ground for conjecture that the owner had given, or intended in the future to give, the strip to the railroad company; but they do not clearly express that the land is thereby and then donated or granted to the company. If we are to suppose that the owner used words in their legal sense, then the word "reserved" would express an intent on the part of the owner to hold the land to himself, rather than, at present, to part with it. If he intended to withhold the land, it is immaterial, so far as a statutory donation or grant is concerned, what purpose he intended eventually to make of it. It is remarkable that there are so few decisions touching in any way the capacity of a railroad company to receive a common-law dedication of land for the purpose of Capacity of a railway. The appellant refers us to 1 Ror. R. R. railroad to receive dedica- P. 322, where the author assumes that such dedication may be made, and to Daniels 7. Chicago & N. W. R. Co., 35 Iowa, 130; Texas & New Orleans R. Co. v. Sutor, 56 Tex. 496, 11 Am. & Eng. R. Cas. 506; and Morgan v. Chicago & A. R. Co., 96 U. S. 716,-in which the tion of land. same thing seems to have been assumed, though in none of them is there anything to indicate that the question was raised. In Todd v. Pittsburg, Ft. W. & C. R. Co., 19 Ohio. St. 514, referred to by the respondent, the court held directly that a railroad company cannot acquire title to land by dedication. The appellant argues that, whenever the right of eminent domain may be exercised to appropriate private property to public use, the property, or an easement in it, may pass by common-law dedication; and therefore, as lands for the use of a railroad company may be appropriated under the right of eminent domain, such a dedication may be made to a railroad company. It is not true, however, that a public use, which will justify taking private property under the right of eminent domain, will in all cases sustain a dedication to public use. Private property may, under the right of eminent domain, be appropriated for mill-dams, (Miller v. Troost, 14 Minn. 365 ;) for the maintenance and operation of booms on rivers navigable for logs, (Cotton v. Mississippi & Rum River Boom Co, 22 Minn. 372;) for constructing waterworks for a particular town, (Inhabitants of Wayland v. Middlesex, 4 Gray, 500;) for a district school, (Williams v. SchoolDist., 33 Vt. 271; Board of Education of Tp. 44 v. Hackmann, 48 Mo. 243;) and undoubtedly for many such purposes, as for fire-engine houses in cities and towns. But it would be extending the doctrine of dedication beyond anything yet suggested in the books to hold that the title or right to the property or easement could thereby pass to and vest in the owner of the dam or mill, the boom company, the town constructing the waterworks or engine house, or school district erecting the schoolhouse. The rule that a right in the public to use the land of an individual may be vested by dedication, by acts in pais, when such a right can vest in an individual only by grant, is anomalous, and grows out of the necessity of the case, and has been accounted for on the ground that there is no grantee in esse capable of taking. The origin of the doctrine of dedication has sometimes been ascribed to Lade v. Shepherd, 2 Strange, 1004, decided about 150 years ago. That is the earliest case in which we find the word "dedication" used, and in which some of the requisites of a dedication are suggested. But, though it has been greatly developed and modified since that time, to meet the altered conditions of public needs, the doctrine had its roots in the common law for centuries before that case. public right, however, was not described as held by dedication, but by custom. As to the rights of the public, some requisites of a good custom are not retained in the law of 46 A. & E. R. Cas.-35 The dedication, most notably that in relation to the time or duration of the public uses. Others are, a custom to take a profit out of the land of another to use it for purposes of profit was not good. Gateward's Case, 6 Coke, 60; Grimstead v. Marlowe, 4 Term. R. 717; Mellor v. Spateman, 1 Saund. 341; Blewett 2. Tregonning, 3 Adol. & E. 554; Waters v. Lilley; 4 Pick. 145; Pearsall . Post, 20 Wend. 111, 22 Wend. 425Littlefield v. Maxwell, 31 Me. 134. All that could be claimed was an easement; as, a right of way. The claim of right to take a profit from the soil of another had to be supported by grant or by prescription, which supposes a grant; and as the public, as such, could not take a grant, of course it could not have such a right. We have not been referred to any case, nor been able to find any, which decides that the law of dedication is not subject to this restriction, or which holds that a dedication may be made to take a profit out of the land, or to use it for purposes of profit. The case of Pearsall . Post, especially, in the court of errors, goes over the whole doctrine, and denies that such a right can be claimed by dedication. Most of the land throughout the country, appropriated under the right of eminent domain, is taken and employed in the public use, through the agency of business corporations. They are authorized to employ the land taken, not only for the public benefit, in the public use, but for carrying on the business they are authorized to transact, not only to serve the public, but to serve their own private interests, to make for themselves a profit out of the use of the land taken. Where land is to be employed in the public use, by a business corporation or an individual there is no reason, founded on necessity, for the doctrine of dedication; because there is, in such case, a grantee in esse capable of taking a grant. Private property cannot be acquired by dedication. It is argued that a railway company is a public or quasi public corporation; that its purposes and duties are public; that its use of land, held and used by it for the purpose of its railroad, is a public use; and that lands dedicated for that purpose are dedicated to the public for public use. From the arguments used it might be inferred that the title of such a company to the lands held by it is merely nominal, held by an agent for its principal, no rights or interests of its own being involved. Fortunately for such corporations, and for the public also, this is not the view the courts take of the relation between the corporation and the property held by it. The lands acquired by the corporation, for the purposes of its enterprise, are, so far as the right of property is concerned, private property. If purchased, the corporation pays for |