SOMERYILLE, J.
The Constitution of 1868 (Art. I, § 25) provided that “ laws may be made securing to persons- or corporations the riglit of way over the lands of either persons or corporations, and for works of internal improvement, the. right to establish depots, stations and turnouts, but just compensation shall, in all cases, be first made to the otvner. The Constitution oil 1875 seems still more explicit in engraft-ing this principle of previous compensation upon the exercise of' the right of eminent domain (Art. I, § 24), a caution which is probably attributable to the doubts entertained as to the proper construction of the clause in the Constitution of 1819, relating to the same subject.—Sadler v. Langham, 34 Ala. 311.
Under this clause, it is too evident to require argument that pre-payment of just compensation to the owner of any lands, sought to be condemned under any ad quod damnum proceeding, is made a condition precedent, without which the title of the owner to the land, or any easement in it, is not divested, or in any manner affected.—Mills on Eminent Dom. § 130; Provolt v. Railroad Co. 57 Mo. 256; Stacy v. Ver. Cent. R. R. 27 Vt. 39.
The owner, if sui juris, may of course waive his right to exact'the pre-payment of damages, by consenting, expressly or by clear implication, to extend a credit to the condemning corporation or party, allowing the damages to lie and remain as a mere debt. But such waiver is not to be inferred, without words or acts of acquiescence on the part of the owner clearly indicating a purpose not to insist on his constitutional right.—Cooley’s Const. Lim. 181, 561-2; Brown v. Worcester, 13 Gray, 31. Where, however, a plaintiff has knowledge of the fact that a company is proceeding to locate and construct their road upon his land, and he allows them to expend large sums of money in improvements for this purpose, without interfering or forbidding them to proceed, he would no doubt be estopped from undertaking to evict them by an action of ejectment.—Trenton, &c. Co. v. Chambers, 9 N. J. (Eq.) 471; McAuly v. West Ver. Railway, 33 Vt. 311.
But the unauthorized entry of a railroad company, by its agents, upon another’s land, without any proceedings of COn[53]*53demnation as provided by the statute, unless perhaps in the case of preliminary oeoupation temporarily for a survey, or other like steps of incipient acquisition, is a trespass, for which they are liable to be sued at law, as other like wrong-doer may be. It is maintained by many respectable authorities that, in all such eases, even when the statute furnishes a remedy to the land owner for the assessment of damages, he is not compelled to institute proceedings, but may rely upon his constitutional protection, and may, if he has not waived pre-payment, maintain ejectment against the company. Daniels v. Chicago & N. Railroad Co. 35 Iowa, 129; 14 Amer. Rep. 490; Smith v. R. R. Co. 67 Ill. 191; M. & C. R. Co. v. Payne, 37 Miss. 700; Mills on Em. Dom. § 130. But where the company alone have power to carry the statutory remedy into effect, and have entered upon the owner’s land without condemning it, and without his consent, the remedy of ejectment clearly lies, without question, according to all the authorities.—Pierce on Amer. R. R. Law, p. 230; 1 Redf. Law Railways, 335; Daniels v. Chicago & N. Railroad Co. 14 Amer. Rep. 490 (supra).
In this case, the agents of the appellant company entered upon the lands of the appellee and constructed their road over them, not only without the consent of any one authorized to give it, but against the protest of the guardian of the appellee, who was then a minor. When the appellee became of age, in 1875, the work of construction was complete, and between that time and the bringing of this suit, in March, 1879, no work of improvements is shown to have been done on the lands in question. The company was not, therefore, prejudiced by her silence ; she .had a right to rely upon the previous dissent of her guardian; there was nothing requiring her disaffirmance on becoming of age, and no time would bar her right of action except a period sufficient to make good the plea of the statute of limitations. Neither the general law, nor the charter of the company, authorized any proceeding on the part .of any one, except the company, to condemn the land and have a jury to award an assessment of damages as a compensation.—Code of 1876, § 3580 et seq.; Acts of 1865-66, pp. 236, 239, §§ 11-12. We think, therefore, that this is a clear case for the ordinary statutory action in the nature of ejectment.
The defendant in the court below (who is here the appellant,) suggested upon the record an adverse possession for three years next before the commencement of this suit, as authorized in such actions for realty by section 2951 of the Code of 1876, and claimed by way of set-off against the rents [54]*54for the value of the permanent improvements made by the company on the plaintiff’s lands during occupancy.
The rulings of the court raise the question whether a mere naked, trespasser can claim the benefit of this statutory provision, or whether one can only do so whose occupancy is under such color or claim of title as to be in good faith.
It is forcibly argued that the statute of limitations to real actions may be sustained without any reference to the bona jides, or color of title, under which the adverse holder claims ownership, as held by this court in Smith v. Roberts, 62 Ala. 83, and other cases there cited; and that the same rule ought, in reason; to apply here. And we admit that this argument is strengthened by invoking section 2966 of the Code, which is in pari materia, and expressly requires “ a possession under color of title, in good faith,” by a defendant, as a sine qua non to any acquittal of responsibility for rents accruing during his adverse occupancy. We think a strict adherence to sound rules of construction would authorize the adoption of this meaning of the statute as the onej most probably intended, but we do not consider it an open question in this State. The same phrase — “ adverse possession” — occurred in the act of 1836, “ for the relief of tenants in possession against dormant titles,” as found in Clay’s Dig. 320, §§ 47-48, and was construed by this court in Lamar v. Minter, 13 Ala. 31. That statute and the present provisions of the Code are similar in substance and purpose, and both contain the identical phrase now under consideration. It was held in the above case, to mean an occupancy that was bona fide, and this would be true whether under color or claim of title. The adoption of the Codes of 1852, 1867, and 1876, each of which contain this phrase, must, according to a well settled principle, be considered as an adoption b.y the legislature of the construction placed upon it by the judiciary, (Ex parte Matthews, 52 Ala. 51).
It has, besides, become a rule of property, having prevailed, as such, in this State for over thirty years, and this is another cogent reason why we do not feel authorized to depart from it, or overrule it.—(Cooley’s Const. Lim. 50-51).
There is, futhermore, manifest justice in such a rule. The reckless or careless intruder upon the lands of another, or one holding possession fraudulently, or mala fide, is not, in justice, entitled to compensation for any improvements made during the period of his wrongful possession.
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SOMERYILLE, J.
The Constitution of 1868 (Art. I, § 25) provided that “ laws may be made securing to persons- or corporations the riglit of way over the lands of either persons or corporations, and for works of internal improvement, the. right to establish depots, stations and turnouts, but just compensation shall, in all cases, be first made to the otvner. The Constitution oil 1875 seems still more explicit in engraft-ing this principle of previous compensation upon the exercise of' the right of eminent domain (Art. I, § 24), a caution which is probably attributable to the doubts entertained as to the proper construction of the clause in the Constitution of 1819, relating to the same subject.—Sadler v. Langham, 34 Ala. 311.
Under this clause, it is too evident to require argument that pre-payment of just compensation to the owner of any lands, sought to be condemned under any ad quod damnum proceeding, is made a condition precedent, without which the title of the owner to the land, or any easement in it, is not divested, or in any manner affected.—Mills on Eminent Dom. § 130; Provolt v. Railroad Co. 57 Mo. 256; Stacy v. Ver. Cent. R. R. 27 Vt. 39.
The owner, if sui juris, may of course waive his right to exact'the pre-payment of damages, by consenting, expressly or by clear implication, to extend a credit to the condemning corporation or party, allowing the damages to lie and remain as a mere debt. But such waiver is not to be inferred, without words or acts of acquiescence on the part of the owner clearly indicating a purpose not to insist on his constitutional right.—Cooley’s Const. Lim. 181, 561-2; Brown v. Worcester, 13 Gray, 31. Where, however, a plaintiff has knowledge of the fact that a company is proceeding to locate and construct their road upon his land, and he allows them to expend large sums of money in improvements for this purpose, without interfering or forbidding them to proceed, he would no doubt be estopped from undertaking to evict them by an action of ejectment.—Trenton, &c. Co. v. Chambers, 9 N. J. (Eq.) 471; McAuly v. West Ver. Railway, 33 Vt. 311.
But the unauthorized entry of a railroad company, by its agents, upon another’s land, without any proceedings of COn[53]*53demnation as provided by the statute, unless perhaps in the case of preliminary oeoupation temporarily for a survey, or other like steps of incipient acquisition, is a trespass, for which they are liable to be sued at law, as other like wrong-doer may be. It is maintained by many respectable authorities that, in all such eases, even when the statute furnishes a remedy to the land owner for the assessment of damages, he is not compelled to institute proceedings, but may rely upon his constitutional protection, and may, if he has not waived pre-payment, maintain ejectment against the company. Daniels v. Chicago & N. Railroad Co. 35 Iowa, 129; 14 Amer. Rep. 490; Smith v. R. R. Co. 67 Ill. 191; M. & C. R. Co. v. Payne, 37 Miss. 700; Mills on Em. Dom. § 130. But where the company alone have power to carry the statutory remedy into effect, and have entered upon the owner’s land without condemning it, and without his consent, the remedy of ejectment clearly lies, without question, according to all the authorities.—Pierce on Amer. R. R. Law, p. 230; 1 Redf. Law Railways, 335; Daniels v. Chicago & N. Railroad Co. 14 Amer. Rep. 490 (supra).
In this case, the agents of the appellant company entered upon the lands of the appellee and constructed their road over them, not only without the consent of any one authorized to give it, but against the protest of the guardian of the appellee, who was then a minor. When the appellee became of age, in 1875, the work of construction was complete, and between that time and the bringing of this suit, in March, 1879, no work of improvements is shown to have been done on the lands in question. The company was not, therefore, prejudiced by her silence ; she .had a right to rely upon the previous dissent of her guardian; there was nothing requiring her disaffirmance on becoming of age, and no time would bar her right of action except a period sufficient to make good the plea of the statute of limitations. Neither the general law, nor the charter of the company, authorized any proceeding on the part .of any one, except the company, to condemn the land and have a jury to award an assessment of damages as a compensation.—Code of 1876, § 3580 et seq.; Acts of 1865-66, pp. 236, 239, §§ 11-12. We think, therefore, that this is a clear case for the ordinary statutory action in the nature of ejectment.
The defendant in the court below (who is here the appellant,) suggested upon the record an adverse possession for three years next before the commencement of this suit, as authorized in such actions for realty by section 2951 of the Code of 1876, and claimed by way of set-off against the rents [54]*54for the value of the permanent improvements made by the company on the plaintiff’s lands during occupancy.
The rulings of the court raise the question whether a mere naked, trespasser can claim the benefit of this statutory provision, or whether one can only do so whose occupancy is under such color or claim of title as to be in good faith.
It is forcibly argued that the statute of limitations to real actions may be sustained without any reference to the bona jides, or color of title, under which the adverse holder claims ownership, as held by this court in Smith v. Roberts, 62 Ala. 83, and other cases there cited; and that the same rule ought, in reason; to apply here. And we admit that this argument is strengthened by invoking section 2966 of the Code, which is in pari materia, and expressly requires “ a possession under color of title, in good faith,” by a defendant, as a sine qua non to any acquittal of responsibility for rents accruing during his adverse occupancy. We think a strict adherence to sound rules of construction would authorize the adoption of this meaning of the statute as the onej most probably intended, but we do not consider it an open question in this State. The same phrase — “ adverse possession” — occurred in the act of 1836, “ for the relief of tenants in possession against dormant titles,” as found in Clay’s Dig. 320, §§ 47-48, and was construed by this court in Lamar v. Minter, 13 Ala. 31. That statute and the present provisions of the Code are similar in substance and purpose, and both contain the identical phrase now under consideration. It was held in the above case, to mean an occupancy that was bona fide, and this would be true whether under color or claim of title. The adoption of the Codes of 1852, 1867, and 1876, each of which contain this phrase, must, according to a well settled principle, be considered as an adoption b.y the legislature of the construction placed upon it by the judiciary, (Ex parte Matthews, 52 Ala. 51).
It has, besides, become a rule of property, having prevailed, as such, in this State for over thirty years, and this is another cogent reason why we do not feel authorized to depart from it, or overrule it.—(Cooley’s Const. Lim. 50-51).
There is, futhermore, manifest justice in such a rule. The reckless or careless intruder upon the lands of another, or one holding possession fraudulently, or mala fide, is not, in justice, entitled to compensation for any improvements made during the period of his wrongful possession. This right to set-off improvements in reduction of rents recoverable by the plaintiff, is an equitable one, borrowed originally from the civil law by courts of chancery, and afterwards adopted gradually by courts of law upon principles of analogy and a [55]*55sound public policy. It never prevailed in the earlier history of the common law, such improvements being regarded as made at the peril of every possessor of the freehold. In Putnam v. Ritchie, 6 Paige, 390, recognized as a leading case on this subject in this country, Chancellor Walworth said: “ I have not, however, been able to find any case, either in this country or in England, wherein the court of chancery has assumed jurisdiction to give relief to a complainant, who has made improvements upon land, the legal title to which was in the defendant, where there has been neither fraud nor acquiescence on the part of the latter after he had knowledge of his legal right's.” It is not to be lightly assumed that the legislature intended to sweep away a principle so manifestly just in itself, and so fundamentally imbedded in the principles of our jurisprudence.—2 Kent’s Com. 334; Jackson v. Loomis, (4 Cow. 168); 15 Amer. Dec. 347; (and note on page 349-354); Horton v. Sledge, 29 Ala. 478; Green v. Biddle, 8 Wheat. 1; Patrick v. Marshall, 2 Bibb, 40 ; 3 Waits Act. & Def. 133.
A mere permissive enjoyment of land, furthermore, or of an easement thereon, has been held not to confer any adverse right. The claim must be of the entire title, exclusive of the title of any other person.—Smith v. Blertis, 9 John. 180; Kirk v. Smith, 9 Wheat. 241; Medford v. Pratt, 4 Pick. 222; Plimpton v. Converse, 44 Vt. 158.
We think the demurrer of the plaintiff to the plea suggesting “ adverse possession” was properly sustained.
It is further insisted by the appellant’s counsel that there has been a dedication of the land in question to the use of the railroad, which is a public highway.
The principle has long been settled by this court, that the mere fact of acquiescence on the part of the owner in the use and enjoyment of his land, as a public highway or road, will not create a presumption of dedication within any period short of twenty years, without some clear and unequivocal act on his part explicitly indicating such purpose of dedication.—(Hoole v. Attorney-General, 22 Ala. 190.) This may be effected without any grant or conveyance by deed or other writing on the part of the owner of the land, (2 Smith, Lead. Gas. 5 Amer. Ed. 209), and when once done is irrevocable. (Wash. on Eas. & Serv. 134). The act insisted on here, as constituting an implied dedication by the appellee, and her deceased brother, Drury Jones, from whom she derives title by inheritance, is a certain proceeding which took place in the chancery court in April, 1876, by which a partition of the land was made between them as tenants in common. In these proceedings the existence and location of the appellant’s road was referred to by name, and the land was partitioned so [56]*56that all “lying North of the New Orleans & Selma railroad was allotted and set apart to the plaintiff,” and all “ lying South of said railroad was set apart to the said Drury F. Jones.” This partition was confirmed by the decree of the probate court, and ratified'by the parties, and a map representing the railroad as a boundary line between the two tracts was referred to and recorded.
We do not think these proceedings can fairly be construed into gift or abandonment of the right of way to the railroad company. Reference is made to the line of the road merely as a convenient means of describing the land, and designating its geographical .boundary, as is frequently, if not always, done to streams or rivers which constitute the intermediate boundaries between lands of adjoining owners. Where land is granted by deed and bounded in this way, the grant extends to the middle of the stream if unnavigable, or of the road as the case may be, unless the contrary is plainly expressed.—Walker’s Amer. Law, (7th Ed.), 300; Hoole v. Attorney-General, 22 Ala. 190, (supra).
The rulings of the court below were in accordance with these principles, and its judgment is affirmed.