The opinion of the court was delivered by
Horton, C. J.:
The errors alleged are, that the court refused to allow the jury to be conducted to and have a view of the premises appropriated for the route of the railroad, and that the jury were misdirected in a material point of law.
In regard to the first allegation of error, it is sufficient to say that the matter of viewing the premises is left by the statute to the discretion of the court. Section 227 of the code provides:
“Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, ... it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose.”
In this case the court did not think it necessary for the jury to view the premises, and owing to the great inconvenience attending such a view, both in regard to the long distance the jury would have been compelled to travel and the great delay involved in the disposition of the cause in the trial court, by the absence of the jury in another county, we perceive no abuse of discretion on the part of the court in this action. The direction complained of is as follows:
“Now as to the right of the company and the plaintiff to the strip of land taken and appropriated by the company: After the strip of land is appropriated, the exclusive use of this strip vests in the company. No legal right or privilege to cross over or under it is reserved or left to the plaintiff. The company has a perfect right to fence up its road, except at public highways or public crossings. In this respect the right of the company differs materially from the rights of the public in land taken for a common highway. The railway company, the defendant, must, from the very nature of its operations, for the security of its trains, its passengers and its employés, and its free use of its road, have the right [292]*292at all times to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the plaintiff in any mode and for any purpose.”
From the record it is shown that the plaintiff testified:
“That the farm was worth twenty dollars per acre before the construction of the railroad across it, and fifteen dollars per acre after its construction. He also testified that there were two drains crossed by the road on his land, one near the easterly entrance to the land, and one near the center of the land; that the railroad company had filled up the eastern one, and made a trestle-work over the one near the center; that the one near the center of the farm was deep enough below the railroad trestle-work for stock to pass under the road, by making a little expenditure, but that the railroad company had not prepared it for such purpose, nor given him any right of way under or over said road; that the road cut off a part of his farm from Elk creek, and left him without access to it for his stock from the main part of his farm; that he had crossed the road with his teams and hauled a part of his crop across it the present season, and stacked it on the south side of the railroad near the creek, and that the railroad company never gave him any right or privilege to cross the road under or over the road.”
Other witnesses were called as to the damages, who gave their opinions — some of them much above that of the plaintiff, and some of them much below it; and upon the testimony so given, it became a question of importance, as affecting the damages to be assessed, whether, under the appropriation made, as shown by this proceeding, the railway company had the right to the exclusive possession of the right of way appropriated, and to prevent the owner of the farm from passing under or over the said railroad with his teams or his stock.
*'Gen\9éta|,28, To decide the question involved, it becomes necessary to determine the nature and extent of the interest which railroad companies acquire in lands obtained by condemnation proceedings, under the law of 1868 and the amendments of 1870. Sec. 84, ch. 23, Laws of 1868, provides that the perpetual use of the land condemned shall vest in the railroad company to which it is [293]*293appropriated for the use of the railroad. The law of 1864 provided that a title in fee simple might be acquired by railroad companies by virtue of their compulsory powers in taking land. Under the law of 1868, a mere easement only is granted; under the old law of 1864, an absolute title could be secured. Some reason must have existed in the minds of the law-makers for the change which has been made in the statute, and we have no right to extend by judicial construction an easement into an absolute title. There is a wide difference between the two. Under an absolute title in fee simple, the owner of the soil owns from the center of the earth up to the sky.
2. ntie of land-owner. 8*mifiload com-the&nd-owner. An easement merely gives to a railroad company a right of way in the land • that is, the right to use the land for its purposes. This includes the right to employ the land taken for the purposes of constructing, maintaining and operating a railroad thereon. Under this right, the company has the free and perfect use of the surface of the land, so far as necessary for all its purposes, and the right to use as much above and below the surface as may be needed. This would include the right to tunnel the land, to cut embankments, to grade and make road-beds, to operate and maintain a railroad with one or more lines of track, with proper stations, depots, turn-outs, and all other appurtenances of a railroad. The former proprietor of the soil still retains the fee of the land and his right to the land for every purpose noj- incompatible with the rights of the railroad company. Upon the discontinuance or abandonment of the right of way, the entire and exclusive property and right of enjoyment revest in the proprietor of the soil. After the condemnation and payment of damages, the soil and freehold belong to the owner of the land, subject to the easement or incumbrance, and such land-owner has the right to the use of the condemned property, provided such use does not interfere with the use of the property for railroad purposes. In some cases, the right of the owner of the soil would practically not amount [294]*294to anything, because the purposes of a railroad company might require the use of all the land taken to such a degree as to forbid the owner from any benefit whatever. The paramount right is with the railroad company, and the land-owner can do nothing which will interfere with the safety of its road, appurtenances, trains, passengers, or workmen.
With these views of the interest which railroad companies acquire in lands obtained by condemnation proceedings, it is evident that the court erred in instructing the jury that “no legal right or privilege to cross over or under [the railroad] is reserved or left to the plaintiff,” (defendant in error.) Under this instruction, the land-owner could not erect a suspension bridge over the road, or float in a balloon over it in the air; or even dig coal, or mine minerals, or quarry rock, in the bowels of the earth beneath the road-bed. The law is otherwise. After the strip of land was appropriated to the plaintiff in error, the perpetual use of the land vested in the railway company, its successors and assigns, for railroad purposes.
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The opinion of the court was delivered by
Horton, C. J.:
The errors alleged are, that the court refused to allow the jury to be conducted to and have a view of the premises appropriated for the route of the railroad, and that the jury were misdirected in a material point of law.
In regard to the first allegation of error, it is sufficient to say that the matter of viewing the premises is left by the statute to the discretion of the court. Section 227 of the code provides:
“Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, ... it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose.”
In this case the court did not think it necessary for the jury to view the premises, and owing to the great inconvenience attending such a view, both in regard to the long distance the jury would have been compelled to travel and the great delay involved in the disposition of the cause in the trial court, by the absence of the jury in another county, we perceive no abuse of discretion on the part of the court in this action. The direction complained of is as follows:
“Now as to the right of the company and the plaintiff to the strip of land taken and appropriated by the company: After the strip of land is appropriated, the exclusive use of this strip vests in the company. No legal right or privilege to cross over or under it is reserved or left to the plaintiff. The company has a perfect right to fence up its road, except at public highways or public crossings. In this respect the right of the company differs materially from the rights of the public in land taken for a common highway. The railway company, the defendant, must, from the very nature of its operations, for the security of its trains, its passengers and its employés, and its free use of its road, have the right [292]*292at all times to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the plaintiff in any mode and for any purpose.”
From the record it is shown that the plaintiff testified:
“That the farm was worth twenty dollars per acre before the construction of the railroad across it, and fifteen dollars per acre after its construction. He also testified that there were two drains crossed by the road on his land, one near the easterly entrance to the land, and one near the center of the land; that the railroad company had filled up the eastern one, and made a trestle-work over the one near the center; that the one near the center of the farm was deep enough below the railroad trestle-work for stock to pass under the road, by making a little expenditure, but that the railroad company had not prepared it for such purpose, nor given him any right of way under or over said road; that the road cut off a part of his farm from Elk creek, and left him without access to it for his stock from the main part of his farm; that he had crossed the road with his teams and hauled a part of his crop across it the present season, and stacked it on the south side of the railroad near the creek, and that the railroad company never gave him any right or privilege to cross the road under or over the road.”
Other witnesses were called as to the damages, who gave their opinions — some of them much above that of the plaintiff, and some of them much below it; and upon the testimony so given, it became a question of importance, as affecting the damages to be assessed, whether, under the appropriation made, as shown by this proceeding, the railway company had the right to the exclusive possession of the right of way appropriated, and to prevent the owner of the farm from passing under or over the said railroad with his teams or his stock.
*'Gen\9éta|,28, To decide the question involved, it becomes necessary to determine the nature and extent of the interest which railroad companies acquire in lands obtained by condemnation proceedings, under the law of 1868 and the amendments of 1870. Sec. 84, ch. 23, Laws of 1868, provides that the perpetual use of the land condemned shall vest in the railroad company to which it is [293]*293appropriated for the use of the railroad. The law of 1864 provided that a title in fee simple might be acquired by railroad companies by virtue of their compulsory powers in taking land. Under the law of 1868, a mere easement only is granted; under the old law of 1864, an absolute title could be secured. Some reason must have existed in the minds of the law-makers for the change which has been made in the statute, and we have no right to extend by judicial construction an easement into an absolute title. There is a wide difference between the two. Under an absolute title in fee simple, the owner of the soil owns from the center of the earth up to the sky.
2. ntie of land-owner. 8*mifiload com-the&nd-owner. An easement merely gives to a railroad company a right of way in the land • that is, the right to use the land for its purposes. This includes the right to employ the land taken for the purposes of constructing, maintaining and operating a railroad thereon. Under this right, the company has the free and perfect use of the surface of the land, so far as necessary for all its purposes, and the right to use as much above and below the surface as may be needed. This would include the right to tunnel the land, to cut embankments, to grade and make road-beds, to operate and maintain a railroad with one or more lines of track, with proper stations, depots, turn-outs, and all other appurtenances of a railroad. The former proprietor of the soil still retains the fee of the land and his right to the land for every purpose noj- incompatible with the rights of the railroad company. Upon the discontinuance or abandonment of the right of way, the entire and exclusive property and right of enjoyment revest in the proprietor of the soil. After the condemnation and payment of damages, the soil and freehold belong to the owner of the land, subject to the easement or incumbrance, and such land-owner has the right to the use of the condemned property, provided such use does not interfere with the use of the property for railroad purposes. In some cases, the right of the owner of the soil would practically not amount [294]*294to anything, because the purposes of a railroad company might require the use of all the land taken to such a degree as to forbid the owner from any benefit whatever. The paramount right is with the railroad company, and the land-owner can do nothing which will interfere with the safety of its road, appurtenances, trains, passengers, or workmen.
With these views of the interest which railroad companies acquire in lands obtained by condemnation proceedings, it is evident that the court erred in instructing the jury that “no legal right or privilege to cross over or under [the railroad] is reserved or left to the plaintiff,” (defendant in error.) Under this instruction, the land-owner could not erect a suspension bridge over the road, or float in a balloon over it in the air; or even dig coal, or mine minerals, or quarry rock, in the bowels of the earth beneath the road-bed. The law is otherwise. After the strip of land was appropriated to the plaintiff in error, the perpetual use of the land vested in the railway company, its successors and assigns, for railroad purposes. The defendant in error had no legal right or privilege to cross over or under the road so as to interfere with the use of the property for those purposes. The company had a perfect right to fence up its road, except at public highways or public crossings. In the usé of the land, the railroad company had the paramount right, but the defendant in error had also the right to the land for every purpose not incompatible with the rights of the road. If the railroad company required exclusive occupancy of the land taken for the use of its railroad on account of the nature of its operations, or for the security of its trains, its passengers or its employés, it was entitled to such occupancy'. On the other hand, if the company had built its bridges and trestle-work so high in places as to allow the free passage of stock or teams under the road, and their entry and passage were of no detriment to the railroad, and in no way interfered with the use of the land for the purposes of the railroad, the defendant in error, as the land-owner, had the right to enter upon such land and pass under such [295]*295'bridges or trestle-work with his teams and stock without being a trespasser. He had also the right to widen the drain ■or passage under the trestle-work, if this in no way interfered with the rights of the. railway company. The trial •court followed the authority of Jackson v. Railroad Company, 25 Vt. 150; but that is an exceptional case. It goes too far. It transfers an easement into an absolute title. It announces :as a matter of law, that a railroad company has the right at all times to the exclusive occupancy of the land condemned for its purposes, and excludes all concurrent occupancy by the land-owner in any mode or for any purposes. We are unwilling to approve that doctrine. It is our opinion that it is .a question of fact, not of law, whether the necessities of the railroad demand exclusive occupancy for its purposes, and what use of the property by the owner is a detriment to, or .interference with the rights of the road. Again, this authority is in conflict with the majority of eases, and if adopted as the law in this state, now so sparsely settled, and where in many of the frontier counties but a single track is necessary, .and public highways and public crossings are at great distances from each other, would work severe hardship and injustice. (Blake v. Rich, 34 N. H. 282; Washburn on Easements, 159, 214; Lance’s Appeal, 55 Pa. St. 16; Evans v. Haefner, 29 Mo. 141; Railroad Company v. Burkett, 42 Ala. 83; 1 Redfield on Railways, 247; Railroad Co. v. Kip, 46 N. Y. 546; Cemetery v. Railroad Company, 68 N. Y. 591.)
The direction to the jury by the court below, inconsistent with this opinion, being erroneous, the judgment is reversed, .•and the cause remanded for new trial.
Valentine, J., concurring.
Brewer, J., not sitting.