Reformation

of deed.

them; if taken in the exercise of the right of eminent do-
main, it pays the compensation. It is true they are charged
with a public duty, which the corporation, in consideration
of the rights and powers conferred on it by the state, as-
sumes to perform, and which the state can compel it to per-
form. But its rights in the lands as its own property are
secure and inviolable. State v. Chicago, M. & St. Paul R.
Co., 36 Minn. 402. The corporation for its own profit and
advantage, accepts the franchises offered by the state, and
assumes to perform the functions and duties required by the
state, not with property furnished it by the state, but with its
own property. The ownership of the property is private,
though the use required to be made of it is public. The pri-
vate ownership prevents the acquisition of it by dedication.
There are several minor questions made by appellant:
First. The deed of Clark W. Thompson, which was intended
to, but through mistake and inadvertence did not,
convey to defendant the land in controversy, ought
to be reformed. There is this sufficient reason why
it cannot be in this action: The necessary parties are not be-
fore the court. The owners of the land, the heirs or devisees
of Thompson, are not parties. Second. The agree-
ment by Thompson to grant a right of way to the Agreement as
corporation cannot, after a location of the railroad a license-
pursuant to it, be regarded as a mere license re-
vocable by the licensor. The findings of fact do not come
up to the requirements of this proposition; for the finding
as to the agreement is not that Thompson would convey the
land in controversy, nor that he would convey the strip 130
feet wide, of which such land is a part, nor any specified
width, but that he would convey a strip sufficient for the
right of way of the railroad and its structures and appliances.
He did convey a strip 100 feet wide; and there is no finding
that the company located its line pursuant to the agreement.
The finding is: "But it does not appear from the evidence
that the Southern Minnesota Railroad Company constructed
its railroad on the premises in question because of or relying
on such promise." This is a very common, though not a
commendable, mode of stating a finding against an allegation
of fact. Such a finding must be taken as a finding against
the party having the affirmative of the issue to which it re-
fers. It is claimed by appellant that, when an
owner of land has consented to the occupation Right of land-
thereof by a railroad with its tracks and appli
ances, he cannot afterwands maintain ejectment for
the land, especially where, as in this case, the entry
and possession antedate (chapter 98, Laws 1875, Gen. St.

Revocation.

owner to
maintain

ejectment.

chap. 34, 33), where the corporation has not acquired the fee of or an easement in the land, a right to retain possession of it, either by grant from the owner, or in the manner prescribed by its charter or the statute. Where the owner has not, in some legal way, lost his right to the possession, he is, of course, entitled to some remedy. As against a private individual, entering, merely, by license, and withholding the possession, the obvious remedy would be by ejectment. It is difficult to see why, even in the absence of a statute on the subject, he should be deprived of that remedy, because the one in possession without right is a railroad corporation, unless, because of the public interest requiring that the line of railroad shall be continued, and not broken by the owner of a piece of land ejecting the company, public policy required the remedy by ejectment to be denied. Without considering whether the decisions denying the remedy on that proposition are sound, it is enough to say that the legislature is the guardian of the public interests, and that it manifestly considered the public interest sufficiently provided for, by allowing a railroad company sued in ejectment for land, across which it has constructed its road, to turn the action into a proceeding to acquire, under the right of eminent domain, the land or an easement therein. Gen. St. 1878, chap. 34, $$ 33-38, inclusive. We think that statute applicable whether the railroad company went into possession before or after its passage, and by its terms it permits the action whether the company took possession with or without the owner's acquiescence, provided it has not made compensation therefor. The exemption from the remedy by ejectment, if such exemption existed, was not a vested right in the corporation. It was not because of any property right in it, but because of what was supposed to be the public interest; and when the legislature, as it did, by the act referred to, determine that the public interest no longer requires the exemption to exist, it ceases. The act applied to all future actions. The

allowance as damages of the mesne profits, from Damages. the revocation by the death of Thompson of his license to the company to enter upon and possess the land, was correct. There are no facts found making it appear that after his death the license was renewed or continued by his representatives. Judgment affirmed.

Dedication of Land to Railroad Company for Public Use.-See Texas & N. O. R. Co. v. Sutor (Tex.), 11 Am. & Eng. R. Cas. 506; Daly v. Georgia, etc., R. Co. (Ga.), 36 Id. 20; Pennsylvania R. Co. v. Ayres (N. J.), 36 Iď. 1; Ottawa, etc., R. Co. v. Larson (Kan.), 36 Id. 163.

AYRES

υ.

PENNSYLVANIA R. Co.

(52 New Jersey Law, 405.)

Dedication-Reservation of Part of Highway for Railroad.-A dedication of land for public use as a highway may be made subject to a right to devote a part thereof to use for railroad purposes, and when such portion has been thus devoted, the use as a way will be suspended, and remain suspended so long as that part is used for railroad purposes.

Conveyance of Land Abutting on Such a Highway prior to the designation of a part for railroad purposes will pass the grantor's title to the center of the street, subject to the public easement and the reserved right to devote to use for railroad purposes.

Same-Power and Intention of Owner to Dedicate.-The fact that the railroad company, which accepted from the owner a grant of a part of such land and devoted it to railroad use, after acts from which such a dedication of the whole would be inferred, had filed a survey of its route over the same land prior to the dedication, and that its charter prescribed that it should become seised in fee of lands taken by condemnation, did not deprive the owner of the power, or indicate his intent not to thus dedicate, for the company could take less than a fee by purchase, and the perpetual and paramount right to use for railroad purposes thus acquired is not inconsistent with such dedication.

MCGILL, Ch. and BEASLEY, C. J., dissenting.

ERROR to Supreme Court.

Argued before MCGILL, CH., BEASLEY, C. J., DIXON, GARRISON, REED, and MAGIE, Justices, and CLEMENT, BROWN, COLE, and Smith, J.J.

Mr. Vail, for plaintiff in error.

B. Gummere, for defendant in error.

MAGIE, J.-This writ of error brings up a judgment in favor of the Pennsylvania Railroad Company, which is the defendant in error, against Janet L. Ayres, who is Case stated. the plaintiff in error, rendered in an action of eject

ment brought by her to recover possession of a strip of land 120 feet long by 7 feet wide, lying within the lines of a public highway in Rahway, and occupied by a track of the railroad company. The cause was tried without a jury, in the Union county circuit court, (Justice VAN SYCKEL,) and the following facts appeared: On June 4, 1835, Louis B. Brown acquired title to a tract of land in Rahway. He laid out streets thereon, and divided it into 291 building lots, and on November 4, 1835, filed in the county clerk's office a map showing the streets and lots. One of the streets was deline

ated and marked as being 100 feet in width, and its name "Railroad Avenue," was printed in the center of it. Along the center ran parallel lines, and at one place were the words "Railroad Depot." On October 22, 1835, the New Jersey Railroad & Transportation Company, incorporated by act of the legislature of March 7, 1832, Laws 1832, p. 96) filed in the office of the secretary of state a survey of the center line of its road, which line over the Brown tract coincided with the center line of Railroad avenue. That company had previously constructed its railroad to a point near the east line of the Brown tract, and before August, 1836, had entered on Railroad avenue in prosecuting the extension of the railroad westerly. On November, 1835, Brown made his first deed. of lots, and between the filing of his map and May 30, 1837, had made and delivered some 30 deeds for lots upon his tract, and designated by reference to his map. Plaintiff's title was acquired under some of those to whom Brown conveyed such lots during that period. Her deeds convey to her lots fronting on Railroad avenue, and opposite to the land in question. By deed dated May 30, 1837, Brown conveyed to the New Jersey Railroad & Transportation Company a strip of land in the middle of Railroad avenue, and extending for a width of 16 feet on each side of the center line. Defendant has the rights acquired by that deed. The land in question is not within the strip conveyed by the last mentioned deed, but adjoins it, and lies between it and lots of the plaintiff. It does not, however, extend beyond a line drawn midway between the strip conveyed by that deed and the side of the avenue as originally laid out. Plaintiff's deeds describe the lots conveyed as bounding on the avenue, but there were no words therein including the land within the avenue; and the contention was that by an established construction she acquired thereby title to land under the avenue, including the land in question, subject only to its use as a public highway. Upon these facts the learned justice who tried the cause found that plaintiff had no title to the land in question, and the judg. ment now under review was rendered on that finding.

Former deci sions on same facts

The facts before the court below were substantially the same as those which were considered in the supreme court in Ayres v. Pennsylvania R. Co., 48 N. J. Law, 44, and by this court in 50 N. J. Law, 660, 36 Am & Eng. R. Cas. I. The only difference is that in the case now in hand it was made to appear that the survey of the railroad route was filed before Brown had filed his map, or made any deed of lots delineated thereon. That fact was deemed by the court below to distinguish this from the case above cited, and to require a different result from

that reached in that case by a divided court. In the case above cited, a majority of the supreme conrt, upon the facts then apppearing, held that by Brown's acts a single street of 100 feet in width was dedicated to be used as a public highway, subject to the devotion of a part of it for use for railroad purposes; and that when Brown conveyed to the railroad company he designated the part which was to be thus used. It was also held that Brown's deeds for lots fronting on Railroad avenue, made before his conveyance to the railroad company, passed his title to the center of the avenue, subject however, (1) to the use for railroad purposes of such part as should be designated; and (2) to the use of the whole as a highway; the former use being paramount to the latter so long as the designated portion was used for railroad purposes.

Decision of

court below.

From the facts appearing in the case before us, it was held by the court below that the previous filing of the railroad survey forbade the inference of such a dedication as the supreme court deemed to have been made, and this was put on the ground that the railroad company, by their charter, had a right to acquire, not a mere easement, but a title in fee-simple. From this added circumstance it was decided that Brown dedicated two roadways, one on each side of the strip conveyed to the railroad company, and that Brown's grantees of lots fronting on the avenue and the railroad company as grantee of the centre strip, severally acquired title to the center of each of these roadways, subject to the public easement. Upon this construction plaintiff's title does not extend over the land in question.

The argument here in support of the conclusion below maintains (1) that after the filing of the railroad survey Brown had no power to dedicate the whole 100 feet in width as a public highway; and (2) that such filing and the attendant circumstances repel the inference of an intent to thus dedicate the whole width of Railroad avenue.

Effect of

filling survey.

With respect to the first point thus made, it may be remarked that it is well settled in this state that the filing of such a survey confers on a railroad company no title whatever. It has been held in the court of chancery not even to be notice to subsequent purchasers. Central R. Co. of N. J. v. Hetfield, 18 N. J. Eq. 323. In this court, the right of a subsequent purchaser to maintain an action of trespass against a railroad company occupying lands within such survey was established. Hetfield v. Central R. Co. of N. J., 29 N. J. Law, 571. What a railroad company acquires by a survey filed is only the right to