Kirkpatrick, O.
This is an action in ejectment brought in tbe district court for Jefferson county by tbe St. Joseph & Grand Island Railway Company, defendant in error, against Weems H. McLucas and John C. McLucas, plaintiffs in error, to recover possession of a strip of land extending along the track of tbe railroad in the city of Fairbury; being 150 feet wide from tbe centre of tbe track. Tbe land was in possession of plaintiffs in error. Tbe petition alleged that defendant in error was a duly incorporated railway company, operating its line of road through Jefferson county as a common carrier of passengers and freight; that it has a legal estate in and was entitled to the immediate possession of tbe strip of land described in [608]*608the petition. The answer pleaded that the cause of action stated in the petition did not accrue within ten years next before the commencement of the action, and that plaintiffs in error were at the commencement*of the action, and for more than ten years prior thereto had been, in the open, notorious, exclusive, adverse possession of the premises, and that such possession -had ripened into a title in fee simple. To this answer, for reply, the railway company filed a general denial. Trial was had to the court, without the intervention of a jury, resulting in a finding and judgment for defendant in error.
There has been a very thorough and painstaking investigation of the questions involved, and the authorities bearing thereon, and an able presentation thereof at the bar of this couft, not only by counsel in the case, but by other distinguished counsel, who appear as amici curkc, which has enabled us the more readily to reach a conclusion satisfactory to ourselves.
The trial court found that plaintiffs in error had been in the open, notorious, exclusive possession of the premises in controversy for fifteen years prior to the commencement of the action, and it is not claimed that this finding is not abundantly sustained by the evidence. Relying upon this finding, plaintiffs in error contend that the-judgment should as matter of law have gone in their favor. A number of reasons are urged by defendant in error in support of the correctness of the judgment of the lower court, among which are, first, that in jurisdictions where a right of way may be lost to a railroad company by adverse possession — our own claimed not to be of that number — possession, in order to be adverse, must be of a character inconsistent with the easement of the railroad company. In other words, it is said that in such jurisdictions the possession is not adverse as long as it is compatible Avith the use to subserve Avhich the right of Avay was in the first instance granted. The ground upon which this contention rests is stated at length and somewhat aptly, by the supreme court of Tennessee, in Railroad v. [609]*609French, 100 Tenn., 209, 66 Am. St. Rep., 752, as follows (p. 753): “It appears-from the record that the railroad company, under its charter, has an easement or right of way-oyer one hundred feet on each side of the centre of its road, and it has been repeatedly held by this court that a user by an adjacent landowner of the right of way up to the line of the road for an indefinite time is not adverse to the road-easement. It may be used for agricultural or any other legitimate and proper purpose. A house may be built upon it and occupied, and it may be inclosed, and the railroad will not lose its easement. The possession for such purpose is consistent with the easement, no matter what kind of a paper title the party in possession may have, and the possession could not be adverse, until the railroad may need the premises and demand them for railroad purposes. Occupancy with a house or inclosure and cultivation and use, are not sufficient to defeat the easement of the road, inasmuch as the road can only demand and take its full right of way when it becomes necessary for railroad purposes, and until then the possession is not adverse.” Again, the supreme court of Michigan, in Matthews v. Lake S. & M. S. R. Co., 110 Mich., 170, 172, 64 Am. St. Rep., 336, has said: “We recognize the doctrine that, if the use of the owner of the servient estate be consistent with its use for an existing easement, the owner of the servient estate can not acquire title by such possession.”
While there is some conflict, the great weight of authority sustains the doctrine announced above. From among the cases the following may be cited: East T., V. & G. R. Co. v. Telford’s Executors, 89 Tenn., 293, 10 L. R. A., 855; Northern Comus Investment Trust Co. v. Enyard, 24 Wash., 366; Mobile & O. R. Co. v. Donovan, 104 Tenn., 465; Railroad v. French, supra; Union P. R. Co. v. Kindred, 43 Kan., 134; Carolina C. R. Co. v. McCaskill, 94 N. Car., 746; Southern P. R. Co. v. Hyatt, 132 Cal., 240, 54 L. R. A., 522. While the following cases, though some are distinguishable from the case at bar, adhere to the [610]*610contrary view: McKinney v. Lanning, 139 Ind., 170; Louisville & N. R. Co. v. Quinn, 94 Ky., 310; New York, N. H. & H. R. Co. v. Benedict, 169 Mass., 262; Woodruff v. Paddock, 130 N. Y., 618.
A second reason urged, and one upon which we place the determination of this case, is that under the constitution of this state a railroad is a public highway, and that as such, title to its right of way can not be taken from it by adverse possession. Section 4, article 11 of the constitution of this state, is in part as follows: “Railways heretofore constructed, or that may hereafter be constructed in this state are hereby declared public highAvays, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law.” The exercise of the right of eminent domain in the condemnation of land for right of way purposes by railroad companies is wholly inconsistent with any other theory than that the railroad is a public high-Avay; and the universal holding of the courts, so far as we are aAvare, is that railroads are highways. Olcott v. Supervisors, 83 U. S., 678, 21 L. Ed., 382; San Francisco, A. & S. R. Co. v. Caldwell, 31 Cal., 367, 371. That the companies operating them may be compelled to transport passengers and freight alike for all persons is well settled. This court has many times so held. That railroads are impressed with a public character, is the more manifestly true under the terms of the constitutional provision quoted. The power of eminent domain is an attribute of sovereignty, and under the provision of the constitution, can only be exercised in the taking of private property for a public use, and then only after just compensation. The power is only coextensive with the necessity of the use. Welton v. Dickson, 38 Nebr., 767, 22 L. R. A., 496, 41 Am. St. Rep., 771. The power to acquire title to the right of \Aray of a railroad company by adverse possession, is wholly inconsistent with the right and interest of the general public in the highAvays of the state. The fact that a railroad is owned and operated by a private corporation, and [611]*611that passengers and freight can only be transported thereon upon tracks and in cars constructed especially for that purpose, does not make it any the less a public highway.
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Kirkpatrick, O.
This is an action in ejectment brought in tbe district court for Jefferson county by tbe St. Joseph & Grand Island Railway Company, defendant in error, against Weems H. McLucas and John C. McLucas, plaintiffs in error, to recover possession of a strip of land extending along the track of tbe railroad in the city of Fairbury; being 150 feet wide from tbe centre of tbe track. Tbe land was in possession of plaintiffs in error. Tbe petition alleged that defendant in error was a duly incorporated railway company, operating its line of road through Jefferson county as a common carrier of passengers and freight; that it has a legal estate in and was entitled to the immediate possession of tbe strip of land described in [608]*608the petition. The answer pleaded that the cause of action stated in the petition did not accrue within ten years next before the commencement of the action, and that plaintiffs in error were at the commencement*of the action, and for more than ten years prior thereto had been, in the open, notorious, exclusive, adverse possession of the premises, and that such possession -had ripened into a title in fee simple. To this answer, for reply, the railway company filed a general denial. Trial was had to the court, without the intervention of a jury, resulting in a finding and judgment for defendant in error.
There has been a very thorough and painstaking investigation of the questions involved, and the authorities bearing thereon, and an able presentation thereof at the bar of this couft, not only by counsel in the case, but by other distinguished counsel, who appear as amici curkc, which has enabled us the more readily to reach a conclusion satisfactory to ourselves.
The trial court found that plaintiffs in error had been in the open, notorious, exclusive possession of the premises in controversy for fifteen years prior to the commencement of the action, and it is not claimed that this finding is not abundantly sustained by the evidence. Relying upon this finding, plaintiffs in error contend that the-judgment should as matter of law have gone in their favor. A number of reasons are urged by defendant in error in support of the correctness of the judgment of the lower court, among which are, first, that in jurisdictions where a right of way may be lost to a railroad company by adverse possession — our own claimed not to be of that number — possession, in order to be adverse, must be of a character inconsistent with the easement of the railroad company. In other words, it is said that in such jurisdictions the possession is not adverse as long as it is compatible Avith the use to subserve Avhich the right of Avay was in the first instance granted. The ground upon which this contention rests is stated at length and somewhat aptly, by the supreme court of Tennessee, in Railroad v. [609]*609French, 100 Tenn., 209, 66 Am. St. Rep., 752, as follows (p. 753): “It appears-from the record that the railroad company, under its charter, has an easement or right of way-oyer one hundred feet on each side of the centre of its road, and it has been repeatedly held by this court that a user by an adjacent landowner of the right of way up to the line of the road for an indefinite time is not adverse to the road-easement. It may be used for agricultural or any other legitimate and proper purpose. A house may be built upon it and occupied, and it may be inclosed, and the railroad will not lose its easement. The possession for such purpose is consistent with the easement, no matter what kind of a paper title the party in possession may have, and the possession could not be adverse, until the railroad may need the premises and demand them for railroad purposes. Occupancy with a house or inclosure and cultivation and use, are not sufficient to defeat the easement of the road, inasmuch as the road can only demand and take its full right of way when it becomes necessary for railroad purposes, and until then the possession is not adverse.” Again, the supreme court of Michigan, in Matthews v. Lake S. & M. S. R. Co., 110 Mich., 170, 172, 64 Am. St. Rep., 336, has said: “We recognize the doctrine that, if the use of the owner of the servient estate be consistent with its use for an existing easement, the owner of the servient estate can not acquire title by such possession.”
While there is some conflict, the great weight of authority sustains the doctrine announced above. From among the cases the following may be cited: East T., V. & G. R. Co. v. Telford’s Executors, 89 Tenn., 293, 10 L. R. A., 855; Northern Comus Investment Trust Co. v. Enyard, 24 Wash., 366; Mobile & O. R. Co. v. Donovan, 104 Tenn., 465; Railroad v. French, supra; Union P. R. Co. v. Kindred, 43 Kan., 134; Carolina C. R. Co. v. McCaskill, 94 N. Car., 746; Southern P. R. Co. v. Hyatt, 132 Cal., 240, 54 L. R. A., 522. While the following cases, though some are distinguishable from the case at bar, adhere to the [610]*610contrary view: McKinney v. Lanning, 139 Ind., 170; Louisville & N. R. Co. v. Quinn, 94 Ky., 310; New York, N. H. & H. R. Co. v. Benedict, 169 Mass., 262; Woodruff v. Paddock, 130 N. Y., 618.
A second reason urged, and one upon which we place the determination of this case, is that under the constitution of this state a railroad is a public highway, and that as such, title to its right of way can not be taken from it by adverse possession. Section 4, article 11 of the constitution of this state, is in part as follows: “Railways heretofore constructed, or that may hereafter be constructed in this state are hereby declared public highAvays, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law.” The exercise of the right of eminent domain in the condemnation of land for right of way purposes by railroad companies is wholly inconsistent with any other theory than that the railroad is a public high-Avay; and the universal holding of the courts, so far as we are aAvare, is that railroads are highways. Olcott v. Supervisors, 83 U. S., 678, 21 L. Ed., 382; San Francisco, A. & S. R. Co. v. Caldwell, 31 Cal., 367, 371. That the companies operating them may be compelled to transport passengers and freight alike for all persons is well settled. This court has many times so held. That railroads are impressed with a public character, is the more manifestly true under the terms of the constitutional provision quoted. The power of eminent domain is an attribute of sovereignty, and under the provision of the constitution, can only be exercised in the taking of private property for a public use, and then only after just compensation. The power is only coextensive with the necessity of the use. Welton v. Dickson, 38 Nebr., 767, 22 L. R. A., 496, 41 Am. St. Rep., 771. The power to acquire title to the right of \Aray of a railroad company by adverse possession, is wholly inconsistent with the right and interest of the general public in the highAvays of the state. The fact that a railroad is owned and operated by a private corporation, and [611]*611that passengers and freight can only be transported thereon upon tracks and in cars constructed especially for that purpose, does not make it any the less a public highway. If a railroad company could lose any portion of its right of way because it has no present or immediate need of it for the actual construction or maintenance of track-age thereon, it might at some time result in so curtailing its right of way and road-bed as to prevent the performance by it of the duties owing to the public, and to perform which it was created. In Krueger v. Jenkins, 59 Nebr., 641, this court, speaking by Suliavan, J. (the question under consideration being the poAver to acquire title to a county road by adverse possession), said (p. 643) : “The right involved in this litigation is one belonging exclusively to the public at large. Neither Douglas county nor its citizens have any peculiar interest in it. A county does not hold the legal title to country roads within its borders; it has no poAver of disposition over them; it has no proprietary interest in them; in performing the duties with which it is charged in connection with them, it acts as an agent of the state, and in the interests of the genera] public. A county, being a mere political subdivision of the state, created for the purposes of government, ought not to be bound by limitation laws any more than the state itself. And, as to property or rights held exclusively in trust for the general public, the decided weight of authority is that such laws have no application.” We apprehend that there is no essential distinction betAveen the case cited and that in hand, and can see no reason why the principle invoked in the former should not be accorded controlling force in the latter. The public has the same interest in a railroad as it has in all other public highways of the state, and we are of opinion that title to the unused portion of the right of way of a railroad being operated in this state can not be acquired by adverse possession.
The judgment of the lower court is right, and it is, therefore, recommended that the same be affirmed.
Hastings and Lobingier, CC., concur.
[612]*612By the Court:
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.