in this road, and rights have been acquired, and expenditures of money made, in anticipation of its continued operation. It may be said, if the benefits of the use of the road to the public do not equal its cost, it had better quit. All of us have no better right to appropriate property without the owner's consent, and without compensation, than one of us has." Citing, Galway v. Railroad Co., 128 N. Y. 132 (28 N. E. Rep. 479); Knox v. Railway Co., 12 N. Y. Supp. 848; Tallman v. Railroad Co., 121 N. Y. 119 (23 N. E. Rep. 1134); Story v. Railroad Co., 90 N. Y. 122. Even the supreme court of Missouri, in the recent case of Childs v. Kansas City, St. J. & C. B. R. Co., 117 Mo. 414 (23 S. W. Rep. 373), without making any reference to the rhetorical opinion to which we have referred, say: "But it is equally well settled that when a railroad company builds its road upon land without having acquired a right of way under the eminent domain law, and without the consent of the owner, the latter may recover in ejectment or trespass. Mere inaction on his part, though he is informed of the fact that the company has entered or constructed its road upon his land, will not deprive him of these remedies. Walker v. Railroad Co., 57 Mo. 275; Bradley v. Railroad Co., 91 Mo. 493 (4 S. W. Rep. 427); Chicago, M. & St. P. R. Co. v. Randolph TownSite Co., 103 Mo. 452 (15 S. W. Rep. 437). The doctrine that the public has an interest to be protected after the railroad has been constructed has been invoked in some adjudicated cases to protect the company, but such a doctrine cannot justify a wrongful entry and use of private property. The constitution secures the right to have the compensation for the property taken paid to the owner, or into court for his use, before his property rights are disturbed; and this right, guaranteed by the present constitution and former statutes, cannot be nullified by any supposed public interest. In this state the duty of instituting proceedings to condemn is devolved upon the railroad company, and the company must obtain the assent of the property owner to enter and construct its road, or procure the right so to do by condemning the property; otherwise it will be a wrongdoer, and the property owner has the same remedies that he would have against any other like wrongdoer. The mere fact that he saw the road built upon his land, and did not object, will be no protection to the company, unless such want of objection, and the other circumstances, justify the inference of consent on his part." A number of Indiana cases hold that ejectment will lie against a railroad, although in active operation, where it has wrongfully taken possession of the land of another. Indiana, B. & W. Ry. Co. v. Allen, 113 Ind. 581 (15 N. E. Rep. 446); Graham v. Columbus & I. C. Ry. Co., 27 Ind. 260 (89 Am. Dec. 498; Cox v. Louisville etc. R. R. Co., 48 Ind. 178.

Sec. 240. Miscellaneous notes. Where the entry of a railroad company upon a right of way was originally lawful and they have constructed and maintained a line of commerce thereon for some time with the consent of the owner, he will be estopped to

maintain ejectment against the road. Stratton v. Omaha & R. V. R. Co., 37 Neb. 477 (55 N. W. Rep. 1058). The action will not lie against a railroad company taking possession under a written agreement by the landowner to convey a right of way, Sands v. Wacaser, 149, I11. 530 (36 N. E. Rep. 960); but under a particular conveyance, the contrary was held in Pennsylvania, Daubert v. Pennsylvania R. Co., 155 Pa. St. 178 (26 Atl. Rep. 108). In California, ejectment cannot be maintained by an abutting owner against a railroad company operating its road on half of the street, in which he owns the fee, under permission from the city, he having no present right of possession. Montgomery v. Santa Ana & W. R. Co. Cal., (37 Pac. Rep. 786; 25 L. R. A. 654). A landowner may maintain ejectment against a railroad company unlawfully in possession of his land, and he is not precluded from availing himself of this remedy by appearing in a previous condemnation proceeding instituted by the company, before persons claiming to act as commissioners, introducing evidence before them, and appealing from their award, when it is shown that such award was made by persons one of whom was not legally appointed commissioner by the judge, so far as the record shows. Lewis et al v. St. Paul M. & M. Ry. Co., S. Dak. (58 N. W. Rep. 580). In Richards v. Buffalo, N. Y. & P. R. R. Co., 137 Pa. St. 524 (19 Atl. Rep. 931; 21 Am. St. Rep. 892); Jacksonville Tampa & K. W. R. R. Co. v. West, 28 Fla. 631 (10 So. Rep. 465; 14 L. R. A. 533), it is held that a court may suspend the enforcement of a judgment of ejectment against a railroad until it has had an opportunity to legally condemn the land and pay the damages. This plan would give the railroad company all protection from the inconvenience arising from the enforcing ejectment against it, which it could justly ask.

EPITOME OF CASES.

Sec 241. As to when ejectment may be maintained. In order to maintain the action the possession of the one sought to be ejected must be wrongful. Sands v. Kagey,

150 Ill. 109 (36 N. E. Rep. 956). Where a city seeks to remove a nuisance, but defendant claims title and possession, and his possession is admitted by plaintiff, the proper remedy is ejectment.

City of Covington v. Chesapeake & O. Ry. Co., Ky., (20 S. W. Rep. 538). The owner of the fee in a public street may maintain ejectment against one who is in the unlawful possession, notwithstanding the easement of the public. Smeberg v. Cunningham, 96 Mich. 378 (56 N. W. Rep. 73; 35 Am. St. Rep. 613). But in order to do so he must show that the defendant has taken exclusive posses

sion and imposed upon the highway some burden inconsistent with the public easement. Westlake v. Koch et al., 134 N. Y. 58 (31 N. E. Rep. 321). An action of ejectment is not the proper remedy for a mere trespass, Tibbets v. Bakewell et al., Cal. (35 Pac. Rep. 1007); nor to enforce a right to a mere easement, Buckner v Hutchings, 83 Wis. 299 (53 N. W. Rep. 505). In Pennsylvania an equitable ejectment is a substitute for a bill in chancery to enforce specific performance of a contaact for the sale of land; and may be maintained by one to whom the vendor has assigned his legal title against one to whom the vendee has assigned his equitable title. Reil v. Gannon, 161 Pa. St. 289 (29 Atl. Rep. 55). In California it is held that the constructive possession of the defendant in ejectment is sufficient to authorize a recovery. Moore v. Moore et al., Cal. (34 Pac. Rep. 90). It is held by a divided court that the holder of a duplicate receipt issued to one making a homestead filing, is not such title or interest in the land as will entitle him to maintain ejectment therefor. Balsz et al. v. Liebenow, Ariz. (36 Pac. Rep. 209). Only the possessor of the legal estate can maintain ejectment, a mortgagee cannot. Malloy v. Malloy, 35 Neb. 224 (52 N. W. Rep. 1097). Where a landlord notifies a tenant in possession under a fixed term that the lease will not be renewed, ejectment may be maintained after the expiration of the term without any further notice or demand. McKissick v. Ashby, 98 Cal. 422 (33 Pac. Rep. 729).

As to power of executor or administrator to maintain the action, see Smathers v. Moody et al., 112 N. C. 791 (17 S. E. Rep. 532). Under S. C. Code "an action for the recovery of real property" cannot be maintained unless there has been an actual trespass by the defendant continuing down to the beginning of the action. Anderson et al. v. Lynch, 37 S. C. 575 (16 S. E. Rep. 773). Under Mass. Pub. Stat., ch. 196, § 1, an action for the recovery of land cannot be maintained if neither the claimant nor his predecessor in title was seized or possessed of the premises within 20 years previous, and the fact that the defendant did not honestly believe that he had title to the land is immaterial. Warren v. Bowdran, 156 Mass. 280 (31 N. E. Rep. 300). The plaintiff attacking the

title of a party in possession cannot sustain his title by a plea of prescription. Lambert v. Craig, 45 La. 1109 (13 So. Rep. 701). A purchaser having paid part of the purchase-money and being in possession under a bond for a deed may maintain ejectment against one who has subsequently taken possession under a void tax deed, although the original vendor has made no effort to collect the money due him and the statute of limitations has run against his claim. Jones v. Hollister, 51 Kan. 310 (32 Pac. 1115).

support the action.

Sec. 242. Title necessary to Actual possession of land is prima facie evidence of ownership in fee, and such owner is prima facie entitled to possession. Teass v. City of St. Albans, 38 W. Va. 1 (17 S. E. Rep. 400); Oregon R. & Nav. Co. v. Hertzberg, (37 Pac. Rep. 1019). Mere color of title without possession of some part of the premises will not support ejectment against even a trespasser. Gist v. Beaumont,

Ore.

Ala.

(16 So. Rep. 20). To entitle him to recover, the plaintiff must have the right of possession both at the time of the institution of his suit and at the time of the trial. Arrington v. Arrington, 114 N. C. 151 (19 S. E. Rep. 351). Where, in ejectment, no title appears in either plaintiff or defendant, the plaintiff's prior possession of three years without claim of ownership will not prevail over defendant's actual and exclusive possession of six years. White v. Keller et al., 114 Mo. 479 (21 S. W. Rep. 860). Title and right of possession acquired subsequent to the commencement of an action in ejectment will not authorize a recovery. Thus, a plaintiff in ejectment, having at the commencement of his action the legal title, but being deprived of the right of possession by a temporary injunction, is properly non-suited despite the dissolution of the injunction before trial. Cofer v. Schening, 98 Ala. 338 (13 So. Rep. 123; 39 Am. St. Rep. 67). Ejectment cannot be maintained under a mere possessory right unless the possession is of such exclusive and hostile character as would ripen into title for the prescriptive period, Akin v. Byrd, 153 Pa. 23 (25 Atl. Rep. 866); but it may be maintained upon title acquired by adverse possession, Los Angeles F. & M. Co. v. Hoff et al., Cal. (34 Pac. Rep. 518); Tay

lor v. Arnold, Gage, 147 Ill. 167 (35 N. E. Rep. 347). Ejectment may be maintained upon an equitable title. Geer v. Geer et al., 109 N. C. 679 (14 S. E. Rep. 297); Arrington v. Arrington, 114 N. C. 116 (19 S. E. Rep. 278); Adams v. Spivey, Ga.

Ky. (17 S. W. Rep. 361); Eddy v.

(20 S. E. Rep. 422). But the facts constituting such title should be fully set forth. Leatherwood v. Fulbright, 109 N. C. 683 (14 S. E. Rep, 299).

In Missouri, ejectment cannot be maintained upon an equitable title. Hunt v. Selleck et al., 118 Mo. 588 (24 S. W. Rep. 213); Crawford v. Whitmore, 120 Mo. 144 (25 S. W. Rep. 365). Trustees holding a legal title may maintain ejectment. Lewis et al. v. St. Paul, M. & M. Ry. Co., S. Dak. (58 N. W. Rep. 580). A devise to executors with a naked power to sell vests the legal title in the heirs, and the executors cannot maintain the action alone. Reynolds Ex'rs. v. Boyd, 92 Ky. 249 (17 S. W. Rep. 572). Under Neb. Comp. Stat., ch. 23, § 202, during his administration, an administrator may maintain ejectment against the grantees of his decedent's heirs. Carson et al. v. Dundas, 39 Neb. 503 (58 N. W. 141). A vendee having the right to possession under a contract of sale may maintain ejectment, but if no conveyance has been made he must make proof of his vendor's title, the mere contract to convey not being sufficient. Anderson et al. v. Rasmussen, Wyo. (36 Pac. Rep. 820). Where the deeds under which plaintiff claims do not vest title in him, he must, in order to recover, show an adverse possession of the land claimed by a well-defined boundary for the prescriptive period. Ratcliffe v. Elam et al., Ky. (21 S. W. Rep. 352). Where the plaintiff shows an original entry from the government by another but fails to show that he has ever acquired his title, he cannot recover, although as against the defendant it appears that he has held adverse possession for a sufficient length of time to confer title. Kelley v. Kurz, 118 Mo. 414 (24 S. W. Rep. 171). Cal. Code Civ. Proc., § 318, construed-proof of possession within five years required. Baum v. Reay, 96 Cal. 462 (29 Pac. Rep. 117; 31 Pac. Rep. 561). Nebraska Code Civ. Proc., § 411, does not authorize a recovery in ejectment on the duplicate receipt of the receiver of any land-office. Adams v. Couch et al., 1 Okla. 17 (26 Pac. Rep.