W. Allen, J.
The tenant has all the rights in the demanded premises which are given to a railroad corporation in land taken [485]*485for depot and station purposes, under the St. of 1874, c. 372, § 60 (Pub. Sts. c. 112, § 91); and the demandant has all the rights of the owner in fee from whom the land was so taken. The tenant has disclaimed all title except to an easement, and thus admitted of record all the title which the demandant has. So far as affects the title, it is immaterial whether judgment on this issue be for the demandant or for the tenant. If, however, the demandant can show that she was in fact disseised by the tenant, she will show that the writ was rightly brought, and will be entitled to costs of the suit, and may recover damages for mesne profits.
It was decided in Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1, that a railroad corporation might disseise the owner of land over which its road was located, by doing acts upon the premises not justified by its rights under its location, and which implied a claim of title, or required a title for their justification. The court say: “Where there is a right which authorizes the party defendant, for certain purposes, to disturb the soil or occupy the land, acts done in apparent conformity therewith, or even of an equivocal nature, will be referred to that special right; although, in the absence of such authority, the demandant would be entitled to regard the acts as an assertion of title and a disseisin of himself.....In respect to lands taken by railroad corporations, although the discretion of the directors is unlimited, as to the mode and extent of the use or occupation, for the purposes for which the corporation was created, yet it is definitely limited by those purposes. Any uses of the land confessedly for other purposes, or not apparently for purposes permitted by its charter, are not protected by its authority.” We have only to adapt the rule of that case to the facts of the case at bar, and inquire whether the acts of the tenant were for purposes other than those for which it might lawfully occupy the land, and amounted to an assertion of title and an assumption of seisin in fee.,
The St. of 1874, e. 372, § 58, (Pub. Sts. c. 112, § 88,) provided that a railroad corporation might lay out its road not exceeding five rods in width. This gave to the corporation the absolute right to impose the easement of a right of way upon the land, but no authority to take the land itself. It is the right acquired by [486]*486the laying out of the road under this provision, of which it was said that it, “though technically an easement, yet requires for its enjoyment a use of the land, permanent in its nature, and practically exclusive.” Hazen v. Boston & Maine Railroad, 2 Gray, 574, 580. The only limit to the use which the corporation may make of the land is, that it shall be a use authorized by its act of incorporation. Within that limit, the manner in which the land shall be used and occupied is in the discretion of the corporation. Locks & Canals v. Nashua & Lowell Railroad, ubi supra, and cases there cited.
But the rights of the tenant in the demanded premises are not merely those acquired by the location of its road. The section of the statute already referred to further authorizes the corporation, for the purpose of cuttings, embankments, and procuring stone and gravel, and for depot and station purposes, to “ purchase or otherwise take,” in the manner afterwards provided, as much more land as may be necessary for those purposes. Subsequent sections provide the manner in which such land may be taken; if the corporation is not able to agree with the owner, it may apply to the county commissioners, who shall prescribe the limits within which it may be taken, and the corporation shall file a location of the land taken.
The statute indicates a more exclusive occupation of the land taken for materials or for station purposes, than of the five rods in width on which the road is laid out. The latter gives directly only the right of way over the land; the right to exclude the owner from the land, to use the land for constructing and maintaining the road-bed, to erect upon it shops and buildings used in the business of a common carrier of persons and goods, are incidental to the right of way. The former, the taking of land for materials and for station purposes, directly contemplates the exclusive occupation and appropriation of the land, as shown by the manner of the taking and the nature of the use for which it is taken ; it is to be purchased or otherwise taken; if not purchased, it cannot be taken until the county commissioners have prescribed its limits, and, when taken, it is taxable to the corporation; and the uses for which it is expressly taken require a possession as exclusive and practically as absolute as belongs to a seisin in fee.
[487]*487It may be assumed that the fee in land thus taken remains in the owner from whom it was taken, and that the corporation, by ceasing to use it for the purposes for which it was taken, and appropriating it to uses not included in its franchise, may become seised of the fee, and thus disseise the owner, as was decided, in regard to land over which a railroad was laid out, in Locks Canals v. Lowell & Nashua Railroad, ubi supra. In that case, the court said: “ The occupation of the buildings upon the demanded premises for the general purposes of trade and mechanical or manufacturing business, by lessees having no other connection with the operations or interests of the corporation than as its tenants paying rent, and the conversion of those buildings by the corporation from their original design into private stores or shops for the purpose of so changing their use, placed them beyond the scope of the corporate purposes and functions,” and involved an assumption of ownership, and made the corporation tenant of the freehold by disseisin.
No occupation of land taken for depot and station purposes, which is not inconsistent with its use for such purposes, can be evidence of a claim to the fee; and any occupation of it which is concurrent and consistent with and does not exclude its occupation for station purposes must be presumed to be under that right. The manner in which it shall be used for the designated purposes is in the discretion of the corporation, and is no concern of the landowner. Even if the corporation exceeds its franchise in the mariner of such occupancy, it does not thereby disseise the owner of the fee.
If a railroad corporation fits its station-house with conveniences for furnishing lodging and food necessary for the comfort of its passengers, it does not claim the fee of the land by allowing others than passengers to use them; it is not a claim of the fee in the land that it does not distinguish between the public and its passengers in the use of the refreshment table or news stand or telegraph office kept there. The building is none the less a station-house, and the fitting it for use, and providing conveniences for passengers and the public alike, is an incident of its use for the business of the corporation, and a mode of inviting passengers to its road; and, in doing it, the corporation asserts no right except to maintain a station-house and what it [488]*488deems incidental to that. It may exceed its corporate rights in the use of its station-house, but it does not thereby claim the fee in the land on which it stands.
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W. Allen, J.
The tenant has all the rights in the demanded premises which are given to a railroad corporation in land taken [485]*485for depot and station purposes, under the St. of 1874, c. 372, § 60 (Pub. Sts. c. 112, § 91); and the demandant has all the rights of the owner in fee from whom the land was so taken. The tenant has disclaimed all title except to an easement, and thus admitted of record all the title which the demandant has. So far as affects the title, it is immaterial whether judgment on this issue be for the demandant or for the tenant. If, however, the demandant can show that she was in fact disseised by the tenant, she will show that the writ was rightly brought, and will be entitled to costs of the suit, and may recover damages for mesne profits.
It was decided in Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1, that a railroad corporation might disseise the owner of land over which its road was located, by doing acts upon the premises not justified by its rights under its location, and which implied a claim of title, or required a title for their justification. The court say: “Where there is a right which authorizes the party defendant, for certain purposes, to disturb the soil or occupy the land, acts done in apparent conformity therewith, or even of an equivocal nature, will be referred to that special right; although, in the absence of such authority, the demandant would be entitled to regard the acts as an assertion of title and a disseisin of himself.....In respect to lands taken by railroad corporations, although the discretion of the directors is unlimited, as to the mode and extent of the use or occupation, for the purposes for which the corporation was created, yet it is definitely limited by those purposes. Any uses of the land confessedly for other purposes, or not apparently for purposes permitted by its charter, are not protected by its authority.” We have only to adapt the rule of that case to the facts of the case at bar, and inquire whether the acts of the tenant were for purposes other than those for which it might lawfully occupy the land, and amounted to an assertion of title and an assumption of seisin in fee.,
The St. of 1874, e. 372, § 58, (Pub. Sts. c. 112, § 88,) provided that a railroad corporation might lay out its road not exceeding five rods in width. This gave to the corporation the absolute right to impose the easement of a right of way upon the land, but no authority to take the land itself. It is the right acquired by [486]*486the laying out of the road under this provision, of which it was said that it, “though technically an easement, yet requires for its enjoyment a use of the land, permanent in its nature, and practically exclusive.” Hazen v. Boston & Maine Railroad, 2 Gray, 574, 580. The only limit to the use which the corporation may make of the land is, that it shall be a use authorized by its act of incorporation. Within that limit, the manner in which the land shall be used and occupied is in the discretion of the corporation. Locks & Canals v. Nashua & Lowell Railroad, ubi supra, and cases there cited.
But the rights of the tenant in the demanded premises are not merely those acquired by the location of its road. The section of the statute already referred to further authorizes the corporation, for the purpose of cuttings, embankments, and procuring stone and gravel, and for depot and station purposes, to “ purchase or otherwise take,” in the manner afterwards provided, as much more land as may be necessary for those purposes. Subsequent sections provide the manner in which such land may be taken; if the corporation is not able to agree with the owner, it may apply to the county commissioners, who shall prescribe the limits within which it may be taken, and the corporation shall file a location of the land taken.
The statute indicates a more exclusive occupation of the land taken for materials or for station purposes, than of the five rods in width on which the road is laid out. The latter gives directly only the right of way over the land; the right to exclude the owner from the land, to use the land for constructing and maintaining the road-bed, to erect upon it shops and buildings used in the business of a common carrier of persons and goods, are incidental to the right of way. The former, the taking of land for materials and for station purposes, directly contemplates the exclusive occupation and appropriation of the land, as shown by the manner of the taking and the nature of the use for which it is taken ; it is to be purchased or otherwise taken; if not purchased, it cannot be taken until the county commissioners have prescribed its limits, and, when taken, it is taxable to the corporation; and the uses for which it is expressly taken require a possession as exclusive and practically as absolute as belongs to a seisin in fee.
[487]*487It may be assumed that the fee in land thus taken remains in the owner from whom it was taken, and that the corporation, by ceasing to use it for the purposes for which it was taken, and appropriating it to uses not included in its franchise, may become seised of the fee, and thus disseise the owner, as was decided, in regard to land over which a railroad was laid out, in Locks Canals v. Lowell & Nashua Railroad, ubi supra. In that case, the court said: “ The occupation of the buildings upon the demanded premises for the general purposes of trade and mechanical or manufacturing business, by lessees having no other connection with the operations or interests of the corporation than as its tenants paying rent, and the conversion of those buildings by the corporation from their original design into private stores or shops for the purpose of so changing their use, placed them beyond the scope of the corporate purposes and functions,” and involved an assumption of ownership, and made the corporation tenant of the freehold by disseisin.
No occupation of land taken for depot and station purposes, which is not inconsistent with its use for such purposes, can be evidence of a claim to the fee; and any occupation of it which is concurrent and consistent with and does not exclude its occupation for station purposes must be presumed to be under that right. The manner in which it shall be used for the designated purposes is in the discretion of the corporation, and is no concern of the landowner. Even if the corporation exceeds its franchise in the mariner of such occupancy, it does not thereby disseise the owner of the fee.
If a railroad corporation fits its station-house with conveniences for furnishing lodging and food necessary for the comfort of its passengers, it does not claim the fee of the land by allowing others than passengers to use them; it is not a claim of the fee in the land that it does not distinguish between the public and its passengers in the use of the refreshment table or news stand or telegraph office kept there. The building is none the less a station-house, and the fitting it for use, and providing conveniences for passengers and the public alike, is an incident of its use for the business of the corporation, and a mode of inviting passengers to its road; and, in doing it, the corporation asserts no right except to maintain a station-house and what it [488]*488deems incidental to that. It may exceed its corporate rights in the use of its station-house, but it does not thereby claim the fee in the land on which it stands.
When the tenant came into possession of the franchise, the road was located, and the station grounds of two acres were taken at the terminus of the road. What the prospective business of the road was does not appear, but it does appear that its present dependence for business is upon the state prison. Whatever passenger travel there is to be, for a time must be drawn by that, and the amount of it may depend largely upon whether it is attracted or repelled by the conveniences furnished to travellers by the corporation, for there are none furnished except by it; and the prospective business of the road, and the increase of population and business about it, might depend upon the conveniences furnished at the station to travellers and sojourners. The whole demanded premises were occupied as the station, and 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 its passengers and others, in order to increase the business of the road, were incident to its business as a passenger carrier, and consistent with its occupation for the purposes for which it was taken, and with a claim to occupy for those purposes.
Another way of stating the question is, Would the tenant acquire the fee by twenty years’ continued occupation ? It is actually using the premises as its station grounds, and has its tracks and its engine and passenger-house upon them. If, after twenty years of such occupation as has been shown, it should wholly abandon the use for railroad purposes, and then should claim the fee by disseisin, the obvious answer would be, that it occupied them for depot and station purposes under the taking, and not as owner in fee.
It seems clear that the demandant has not the right of possession of the premises. The .tenant is in possession in the exercise of a public franchise, with which the demandant has no right to interfere, and it is difficult to see how there can be a disseisin of the demandant while such occupation continues. In Locks & Canals v. Nashua Lowell Railroad, ubi supra, there had been an abandonment of the use of the land under the franchise; not a [489]*489technical abandonment, — because, as was said, a public franchise cannot be abandoned, — but an entire disuse of it, and an inconsistent use, which would have been an abandonment of a private right, and which gave to the demandant a right of action in trespass, and therefore a right of at least temporary possession until the land should be used for the purposes of the franchise. In this case, there has been no non-user, but a continued occupation of the land for the purposes of the franchise, which is inconsistent with a claim of the fee. The same occupation cannot be both under the franchise and in fee; if it is not under the franchise, but by disseisin of the fee, it must give to the demandant the right of possession. Being in the rightful possession and the actual use of the land for the purposes for which it was taken, and having the absolute right to determine the manner of occupation for such purposes, its occupation must be presumed to be in the exercise of that right. It is not until it substitutes another use for that given by its franchise, so that its possession of the land is wrongful, that its occupation can be referred to the claim of the freehold.
Judgment for the tenant.