COLLARD, Judge.
Appellant contends that where lands are condemned by right of eminent domain under the statute for depot and station grounds for railroad purposes the fee is taken. We think the fee remains with the original owner. Mills on Em. Dom., secs. 58, 59, 208; 2 Wood’s By. Law, 770, 77, and note 2; Lance’s Appeal, 55 Pa. St., 24; [75]*75Pierce on Rys., 159, 160; Heard v. City of Brooklyn, 60 N. Y., 242; 68 N. Y., 1; Railway v. McLanahan, 59 Pa. St., 28.
Articles 4210, 4211, and 4212 of the Revised Statutes refer to lands acquired by purchase by railroad companies, and are not applicable to the question before us. We are not called on at this time to construe these articles. They authorize a railway company to sell lands voluntarily conveyed to it when no longer required for use by the company. It does not follow from this that it could sell or own a fee in lands condemned for its use, nor that it could sell the fee when the fee was not conveyed to it.
It is provided by statute of this State enacted February 7, 1861, and re-enacted in the Revised Statutes, article 4206, that the right of way secured to a railroad in the manner provided by law—that is, by condemnation—shall not be so construed as to include the fee; but it can not be argued from this that land condemned for depot grounds passes the absolute fee simple estate.
The act allowing a railway company to take land from the owner for depots, machine shops, or material thereon for the purposes of its incorporation was passed in 1876. It would not be reasonable to conclude that because it was silent as to the fee it was intended the fee should pass merely because the Act of 1861 then in force reserved the fee to the owner in case of condemnation of the right of way. The reason is on the other side. Rev. Stats., arts. 4179, 4206.
It becomes necessary to know what use the defendant by permission of the railway company put the vacant depot grounds to in order to ascertain whether the owner’s rights in the fee were interfered with or not. The agreement of the parties and the findings of the court furnish us the facts in this respect as follows:
“About the 15th of February, 1882, defendant O. T. Lyon, who was an extensive dealer in lumber and buildipg materials and shipper of same in large quantities over the said railroad, was permitted by said Missouri Pacific Railway Company to use a portion of the premises so condemned for depot grounds but not immediately needed, the same being south of the depot and immediately adjoining its side track, for the purpose of unloading and storing lumber shipped to him over its railroad. The permission given was verbal and for no particular time, and no rent or compensation was promised or to be paid—the permission given being for the accommodation of both parties, and no compensation being received or required by the said railroad company except the increased convenience and facility afforded for the unloading of its cars of lumber and the avoidance of delay in such unloading by reason thereof.
“Defendant has ever since continued to occupy on the same terms a portion of said grounds about 300 feet north and south and 70 feet east and west, west of and adjoining the side track of said railroad, by unloading and piling lumber thereon from the cars of said railway company and [76]*76loading the same therefrom on the wagons of purchasers as sold, and adjoining the west line of said track has erected an office 16 by 16 feet and a shed 220 feet long for sheltering dressed lumber.
“ The number of car loads of lumber received and unloaded there during the first ten months was 347 and during the twelve months following 261 cars, and defendant has been constantly receiving and selling lumber during the time he so occupied; and by being permitted to unload and store lumber on these grounds defendant has been enabled to receive and unload the cars of said railway company more rapidly than he could if compelled to haul the lumber to a yard in some other place, and thereby said railway company has avoided much delay of its cars for unloading.”
The meaning of this is that the railway company permitted Lyon to use its grounds as a lumber yard for his private business as a lumber dealer, the company being, benefited thereby only in having its cars more conveniently unloaded of lumber hauled there for him. It was an exclusive license to him alone and not to the public generally, that he should carry on his trade of lumber dealer on grounds condemned for depot purposes. The company would certainly have had the right to permit the public to so use the grounds in unloading its cars and in receiving freight; but the permission here was to a particular person to so receive his freight bought and sold in his business, to store the same on the ground, to erect sheds for the protection of his property, and to use the premises as a pilace of business. Such uses were inconsistent with the purposes for which the land was condemned as much so as if it had been used as an ordinary warehouse or grocery store.
It has been held that a railway company might grant a license for the erection and use of buildings on its right of way for convenience in delivering and receiving freight (Railway v. Richardson, 91 U. S., 468), and it has been held that where “the premises were occupied as a station, furnishing food, lodging, horse keeping, and horse hire, and allowing buildings upon it to be used for a boarding house and a stable and some of the land to be cultivated, all for the convenience of passengers and others in order to increase the business of the road,” such uses “were incident to its business as a passenger carrier, and consistent with its occupation for the purposes for which -the land was taken and with a claim to occupy for those purposes.” Pierce v. Railway, 24 Am. and Eng. Ry. Cases, 640.
The doctrine was applied in the foregoing case to show that such an occupation and use would not disseize the owner of the fee, and entitle him to recover the premises because of improper use. These cases, however, do not go to the extent of holding that to use the premises taken for warehouses, shops, trades, etc., by private persons, it would not amount to such an abandonment by the corporation of the easement as would give the owner of the fee a right to damages for such use. If the doctrine [77]*77could be stretched to this extent there would be nothing to prevent a railway corporation from having its right of way and all its grounds not in use occupied by warehousemen, store keepers, and all kinds of traders, they paying rent therefor, and plead as an excuse that it was more convenient to the company in receiving and delivering freight.
The correct doctrine is laid down in Lance’s Appeal, 55 Pennsylvania State, 25, where it is said that “the right of the Commonwealth to take private property without the owner’s consent exists in her sovereign right of eminent domain and can never be exercised but for a pxiblic purpose supposed and intended to benefit the public either mediately or immediately. The power arises out of that natural principle that private convenience must yield to public wants. The public interests lie at the basis of the exercise of the power, or it would be confiscation and usurpation to exercise it. This being the reason for the exercise of such power, it requires no argument to prove that after the right has been exercised the use of the property must be held in accordance with and for the purposes which justified its taking.
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COLLARD, Judge.
Appellant contends that where lands are condemned by right of eminent domain under the statute for depot and station grounds for railroad purposes the fee is taken. We think the fee remains with the original owner. Mills on Em. Dom., secs. 58, 59, 208; 2 Wood’s By. Law, 770, 77, and note 2; Lance’s Appeal, 55 Pa. St., 24; [75]*75Pierce on Rys., 159, 160; Heard v. City of Brooklyn, 60 N. Y., 242; 68 N. Y., 1; Railway v. McLanahan, 59 Pa. St., 28.
Articles 4210, 4211, and 4212 of the Revised Statutes refer to lands acquired by purchase by railroad companies, and are not applicable to the question before us. We are not called on at this time to construe these articles. They authorize a railway company to sell lands voluntarily conveyed to it when no longer required for use by the company. It does not follow from this that it could sell or own a fee in lands condemned for its use, nor that it could sell the fee when the fee was not conveyed to it.
It is provided by statute of this State enacted February 7, 1861, and re-enacted in the Revised Statutes, article 4206, that the right of way secured to a railroad in the manner provided by law—that is, by condemnation—shall not be so construed as to include the fee; but it can not be argued from this that land condemned for depot grounds passes the absolute fee simple estate.
The act allowing a railway company to take land from the owner for depots, machine shops, or material thereon for the purposes of its incorporation was passed in 1876. It would not be reasonable to conclude that because it was silent as to the fee it was intended the fee should pass merely because the Act of 1861 then in force reserved the fee to the owner in case of condemnation of the right of way. The reason is on the other side. Rev. Stats., arts. 4179, 4206.
It becomes necessary to know what use the defendant by permission of the railway company put the vacant depot grounds to in order to ascertain whether the owner’s rights in the fee were interfered with or not. The agreement of the parties and the findings of the court furnish us the facts in this respect as follows:
“About the 15th of February, 1882, defendant O. T. Lyon, who was an extensive dealer in lumber and buildipg materials and shipper of same in large quantities over the said railroad, was permitted by said Missouri Pacific Railway Company to use a portion of the premises so condemned for depot grounds but not immediately needed, the same being south of the depot and immediately adjoining its side track, for the purpose of unloading and storing lumber shipped to him over its railroad. The permission given was verbal and for no particular time, and no rent or compensation was promised or to be paid—the permission given being for the accommodation of both parties, and no compensation being received or required by the said railroad company except the increased convenience and facility afforded for the unloading of its cars of lumber and the avoidance of delay in such unloading by reason thereof.
“Defendant has ever since continued to occupy on the same terms a portion of said grounds about 300 feet north and south and 70 feet east and west, west of and adjoining the side track of said railroad, by unloading and piling lumber thereon from the cars of said railway company and [76]*76loading the same therefrom on the wagons of purchasers as sold, and adjoining the west line of said track has erected an office 16 by 16 feet and a shed 220 feet long for sheltering dressed lumber.
“ The number of car loads of lumber received and unloaded there during the first ten months was 347 and during the twelve months following 261 cars, and defendant has been constantly receiving and selling lumber during the time he so occupied; and by being permitted to unload and store lumber on these grounds defendant has been enabled to receive and unload the cars of said railway company more rapidly than he could if compelled to haul the lumber to a yard in some other place, and thereby said railway company has avoided much delay of its cars for unloading.”
The meaning of this is that the railway company permitted Lyon to use its grounds as a lumber yard for his private business as a lumber dealer, the company being, benefited thereby only in having its cars more conveniently unloaded of lumber hauled there for him. It was an exclusive license to him alone and not to the public generally, that he should carry on his trade of lumber dealer on grounds condemned for depot purposes. The company would certainly have had the right to permit the public to so use the grounds in unloading its cars and in receiving freight; but the permission here was to a particular person to so receive his freight bought and sold in his business, to store the same on the ground, to erect sheds for the protection of his property, and to use the premises as a pilace of business. Such uses were inconsistent with the purposes for which the land was condemned as much so as if it had been used as an ordinary warehouse or grocery store.
It has been held that a railway company might grant a license for the erection and use of buildings on its right of way for convenience in delivering and receiving freight (Railway v. Richardson, 91 U. S., 468), and it has been held that where “the premises were occupied as a station, furnishing food, lodging, horse keeping, and horse hire, and allowing buildings upon it to be used for a boarding house and a stable and some of the land to be cultivated, all for the convenience of passengers and others in order to increase the business of the road,” such uses “were incident to its business as a passenger carrier, and consistent with its occupation for the purposes for which -the land was taken and with a claim to occupy for those purposes.” Pierce v. Railway, 24 Am. and Eng. Ry. Cases, 640.
The doctrine was applied in the foregoing case to show that such an occupation and use would not disseize the owner of the fee, and entitle him to recover the premises because of improper use. These cases, however, do not go to the extent of holding that to use the premises taken for warehouses, shops, trades, etc., by private persons, it would not amount to such an abandonment by the corporation of the easement as would give the owner of the fee a right to damages for such use. If the doctrine [77]*77could be stretched to this extent there would be nothing to prevent a railway corporation from having its right of way and all its grounds not in use occupied by warehousemen, store keepers, and all kinds of traders, they paying rent therefor, and plead as an excuse that it was more convenient to the company in receiving and delivering freight.
The correct doctrine is laid down in Lance’s Appeal, 55 Pennsylvania State, 25, where it is said that “the right of the Commonwealth to take private property without the owner’s consent exists in her sovereign right of eminent domain and can never be exercised but for a pxiblic purpose supposed and intended to benefit the public either mediately or immediately. The power arises out of that natural principle that private convenience must yield to public wants. The public interests lie at the basis of the exercise of the power, or it would be confiscation and usurpation to exercise it. This being the reason for the exercise of such power, it requires no argument to prove that after the right has been exercised the use of the property must be held in accordance with and for the purposes which justified its taking. * * * Hence it is that no one can pretend that a railroad company may build private houses and mills or erect machinery not necessarily connected with the use of their franchise within the limits of their right of way.”
It was also held in the case that the “fee remained with the owner, and outside of the authorized use, which must be public or incidental to public use, the proprietary right is in the original owner.” This right of eminent domain does not extend beyond “the reasonable necessities of the corporation in the discharge of its duties to the public.” New York City v. Railway, 77 N. Y., 248. A railway may take private property upon compliance with the statute, paying the damages assessed, for railroad purposes, or it may permit others to do so, but for no other purposes. It can not take more land than is allowed by the law or its charter, or any except for the legitimate purposes of its franchise. Railway v. McLanahan, 59 Pa. St., 23. If it acquire the right of easement for public purposes and its own necessities by proceedings of condemnation, and change the use to private purposes, such change will amount to “an abandonment ” and the owner will have his remedy.
It was decided in Proprietors of Lock and Canals v. Hashua & Lowell Railway Company, 104 Massachusetts, 8, that a change of use to purposes of rent to persons engaged in business of their own “ did not put an end to the right of use for the legitimate purposes of the franchise” and authorize a writ of entry by the owner, but that in such form of action the owner could establish his right to the fee and recover mesne profits for the use of it.
These questions were discussed in the case of O’Heal and Wife v. City of Sherman, 77 Texas, 182, and the following principles clearly announced:
[78]*781. That the fee continues in the owner after land is condemned for public uses.
2. “Where land is condemned for a special purpose on the score of public utility the sequestration of the land is limited to that particular use."
3. If the property be put to a wholly different use, though for public purposes, a new assessment will be required.
In the case before us it is impossible to say that the railroad could have used the premises in question as a wagon yard under the right of easement, and it is equally certain that what it could not do itself it could not license another to do.
Appellant contends that the court erred in finding that plaintiff was entitled to recover as damages the rental value of the premises as a lumber yard. We have already seen that mesne profits may be recovered in such cases. Proprietors v. Railway, 104 Mass., 1; O’Neal v. City of Sherman, 77 Texas, 182; Sedg. on Dam., 251.
The land was used as a lumber yard, and the value of such use would be the correct inquiry on the subject of damages, there being no injury to the realty.
Appellant also contends that “the court erred in finding that plaintiff was the owner of the fee during the time the premises had been used by •defendant, and especially in finding that he was such owner prior to the 2d day of March, 1883 (the day plaintiff recovered judgment for the land against the heirs of Johns), and in awarding him damages for injury to his rights as owner of the fee during all that time." The petition alleged that plaintiff was the owner of the premises .on the 16th August, 1882, .and laid the trespass on that day, which is alleged to have been continuous. It is admitted that Thomas Johns, who died in 1867, owned the land (8 acres including the land in controversy) in 1866; that he had lived with a negro woman in the town of Hillsboro, by whom he had two children, Watson and .Doak Johns; that in October, 1867, 8 acres of land, including that in controversy, Avas set aside by an order of the Probate Court of Hill County as a homestead to said Watson and Doak, and that on August 5 and 16, 1882, plaintiff acquired deeds from Watson and Doak ■Johns. The true Avhite legal heirs of Johns took possession of the 8 acres, including the land in controversy, about July, 1879, the same being then unoccupied; the land in controversy was condemned by legal proceedings for that purpose against the real heirs of Johns for depot grounds and right of Avay in Hillsboro, on the 20th day of July, 1881, and on the 22d day of September, 1882, the plaintiff brought suit in the District Court of Hill County against the white heirs of Johns to recover the 8 acres, and on the 2d day of March, 1883, a decree Avas rendered by consent in his favor for the land.
The negro children could not have inherited the land, and the only [79]*79right they obtained in the premises was the homestead right granted them by decree oí the Probate Court. They had no fee simple estate and conveyed none to plaintiff, and by their sale to him the homestead right was extinguished. The record does not show what title he recovered on in the suit against the white heirs of Johns. He did, however, recover the land from them on the 2d of March, 1883, and in favor of this judgment it will be presumed that he had title superior to that of the heirs at the time his suit was brought, to-wit, on the 22d of September, 1882. Their ancestor’ being the admitted owner the judgment against them would constitute a link in plaintiff’s title and would vest in him the paramount title to the fee, but it would not in any way interfere with the easement previously acquired by the railroad. This suit is not intended to contest the right'of the railway to the easement.
We find plaintiff with title to the fee, then, on the 22d day of September, 1882, by virtue of his judgment, and not on the 16th day of August, 1882. He was only entitled to the rental value of the fee from the 22d of September, 1882, and not from the 16th day of August, 1882, as found by the court.
• Appellant in his last assignment of error complains of the ruling of the court in failing to sustain his exceptions to plaintiff’s petition as to damages to his lot adjoining the right of way, and in holding defendant liable for damages by reason of obstructing the view of plaintiff from the lot.
The petition alleged that plaintiff had the right of free passage through the laud occupied by defendant, and by such occupancy he was deprived of this privilege, and that the view from his lot was obstructed by the houses, sheds, etc., erected by defendant. The court sustained the exception to the petition setting up the right of plaintiff to free passage over the grounds, but held the petition good as to the averment of obstruction to the view from the lot. Plaintiff had no right of passage over the grounds of the railway company, and was not entitled to damages because he was deprived of such use. He was not prevented from passing at any public crossing. Pierce on Bys., 159, 160.
The petition does not show what advantage or benefit there was in such a view or in what way any damage could result by obstructing it. The mere fact that a view is obstructed from one place to another does not of itself import an injury. We think the exceptions to this part of the petition should have been sustained. The court’s findings of damages on this branch of the case was not only on account of obstructing the view from this lot, but because of deprivation of use in crossing the railroad grounds, because the lot was valuable or would be for a cotton yard; that the proximity of the lumber on the lumber yard increased the danger of fire to cotton that might be stored on the lot and enhanced the rate of fire insurance. After sustaining the exceptions to the petition holding that [80]*80plaintiff had no right to free passage over these grounds, there was nothing left in the petition upon which the claim for damages rested but the averment as to obstructing the view. Had this allegation been good no damages could have been assessed for other injuries not alleged, and it was error to award such damages.
Our conclusion is the judgment of the lower court should be reversed and the cause remanded.
Reversed and remanded.
Adopted June 24, 1890.