Barnes, J.
The appellant, as plaintiff, commenced this action in the district court for Washington county to obtain a decree quieting the title in himself to a strip of land 50 feet in width lying along and adjacent to another strip 100 feet in width, occupied by one of the defendants, appellee herein, for the operation of its railroad. The trial resulted in a decree quieting the title in the plaintiff to a small part of the land in controversy, on which he had erected an elevator, and a judgment in favor of the defendant as to the rest of the premises. The case comes here by appeal; and the railroad company claims both strips of land are in-[10] eluded in its right of way acquired by the exercise of the power of eminent domain in the year 1868; while appellant denies such acquisition because of certain alleged defects in the condemnation proceedings, and contends that by reason of such defects the court acquired no jurisdiction, and that such proceedings were void. The trial court sustained the contention of the railroad company so far as the condemnation proceedings are concerned, and as his opinion on that .question fully accords with our views, and has our approval, we adopt that part of it as our own:
“Defendants claim a right of way through plaintiff’s land 100 feet wide on each side of the center line of their track, and are threatening to take possession thereof to its full width. Plaintiff admits that they have a right of way 50 feet wide on each side of the center line of their track, and brings this action for the purpose of enjoining them from excluding him from either of the strips of land which lie between the 50 feet and the 100-feet limits.” * * * It appears that “prior to and at the time of the building of the Sioux City & Pacific Railroad through Washington county, plaintiff was in possession of three contiguous quarter sections of land adjacent to the village of Arlington, and extending east therefrom. The first, being the northwest quarter of section 18, township 17, range 10, he occupied as the tenant of one Thomas Beatty; the second, being the northeast quarter of said section, he owned and resided upon, which for the sake of convenience will be hereinafter referred to as the homestead; and the third, being the northwest quarter of section 17, in said township and range, he held possession of under a privilege of cutting hay thereon.
“July 19, 1868, the aforesaid railroad company filed an application in the county court of said county for the appointment of commissioners for the condemnation of a right of way across said quarter sections of land 100 feet on each side of the center line of its tracks. Commissioners were accordingly appointed, and they reported to [11] said court that the plaintiff was damaged in the sum of $150 for the right of way, as prayed for, through his homestead quarter. Prom this award he appealed to the district court; but he subsequently settled with the company for $500, dismissed his appeal, and delivered to the company a deed which conveyed to it an easement of 200 feet wide across said homestead. Plaintiff now alleges that defendants obtained no right of way by virtue of said proceedings because they were in many respects irregular and void. But, if said condemnation proceedings were irregular or even void, plaintiff estopped himself from making such a plea when he dismissed his appeal and accepted the $500 from the railroad company. Kile v. Town of Yellow-head., 80 Ill. 208; Hartshorn v. Potroff, 89 Ill. 509; Burns v. Milwaukee & M. R. Co., 9 Wis. 420; Hitchcock v. Dan-bury & N. R. Co., 25 Conn. 515; Trester v. Missouri P. R. Co., 33 Neb. 171. At all events, plaintiff’s right of way deed closes his mouth as to the existence of a 200-feet right of way across his homestead. It is true, however, that he alleges that said deed was altered subsequently to delivery thereof by a change of the word 50 to 100, thereby making the right of way 200 feet instead of 100 feet wide. But we are compelled, by a preponderance of the evidence, to find that he was mistaken. The recital in the deed that said alteration was made before the execution of the deed; the appearance of the ink, the similarity of the penmanship of said alleged alterations with the handwriting of the body of the instrument, and J. A. Unthank’s testimony, all convince the court that plaintiff has forgotten the circumstances attending the execution of the deed and about the alteration, and that he must have known at the time that he was making a conveyance of 200-feet easement to the company. Moreover, the condemnation proceedings, of which he certainly had knowledge, related to a 200-feet right of way, and so did the release which he gave to the company for damages. The conclusion is irresistible that the plaintiff knew that the railroad company was attempting to procure a 200-feet right of way, not only [12] through his homestead, but also through the other two quarter sections of land; indeed, he so testified; and, that as to said homestead he is now estopped by his deed to claim otherwise.
“That the company obtained a 200-feet right of way through the other two quarter sections of land is not so clear. In Trester v. Missouri P. R. Co., 33 Neb. 171, it was held that a petition for the appointment of freeholders to assess damages should state, among other things, the names of the landowners, if known, a description of the land over which the railroad is located, the width required for right of way purposes, and that the landowner refuses to grant a right of way through his premises. The petition filed in the condemnation proceedings in question did not state the names of the owners of the lands over which the railroad had been located, or recite that the owners were unknown, or allege that they had refused to grant a right of way over their premises. Plaintiff contends that these omissions render the petition jurisdictionally defective, and that therefore all of the proceedings based thereon are void. While the petition does not allege that the owners of said two quarter sections of land were unknown, the proceeding was evidently begun by the company and heard by the court on that assumption. The published notice described them as unknown owners, and that is sufficient proof of the fact, which has passed unchallenged for 34 years. If the names of the owners were unknown, it is manifest that they could not have been inserted in the petition, and that the rule laid down by the case of Trester v. Missouri P. R. Co., supra, was not intended to be applicable to such a case as this. An allegation that the names of the owners of the lands were unknown was a proper one, and it ought to have been put into the petition, but its omission was not fatal to the jurisdiction of the county court. So, too, the omission of an allegation that the owners had refused to grant a right of way over their premises is immaterial; for, after a studious consideration of the statutes, and for what [13] seems to be tbe better reasoning, and in the absence, too, of authorities to the contrary, we are of the opinion that in cases of nonresidents it is not essential to the jurisdiction of the county court that a railroad company should allege in its application for the appointment of commissioners that it had first tried to obtain a right of way by agreement with the owners of the lands over which its railroad was located. Under this view of the law the application aforesaid was sufficient to give the county court jurisdiction as to the other two quarter sections of land, whose owners the evidence shows were then nonresidents.
“The notice served on nonresidents by publication was published in a newspaper in Douglas county, and it was a legal notice, if there were no newspaper then being published in Washington county. Plaintiff claims that the burden of showing that there was no newspaper published in Washington county at that time rests upon the defendants, because they must prove a valid condemnation proceeding. The fact that the notice was published.in another county, that the county court acted on said notice, and that said notice has passed unchallenged for nearly 35 years makes a prima facie case in defendant’s favor as to this issue, and in the absence of testimony to the contrary warrants the court in holding that said notice was properly published, and is valid.
“Plaintiff also alleges that said condemnation proceedings were invalid because of want of proof of payment of the damages awarded. He admits that he received $500 for a right of way through his homestead. J. A. Unthank testifies that he received from the county court, for his nephew, the damages which were awarded for a right of way over the northwest quarter of section 18; and even if there be no evidence of his authority to receive said damages, his testimony nevertheless proves that they were paid into the county court. The county court record has the word ‘paid’ written on the margin of the page opposite the descriptions, northwest quarter of section 17, and northwest quarter of section 18. This word standing be[14] fore the description, northwest quarter of section 17, is verified by Hr. Unthank’s testimony; and if it is properly before the northwest quarter of section 17, on which the damages were paid, then it is reasonable to believe that it would not have been written opposite the northwest quarter of section 18 unless the damages had been paid on that quarter also. There is no apparent reason why the railroad company should have paid in the damages on one quarter section and not on the other, nor why the county court should have written the word ‘paid’ rightly before one description and wrongly before the other.”
In Livingston v. Arnoux, 56 N. Y. 507, it was held that an official memorandum made by an officer against his interest is evidence as well of the fact against his interest, as of the other matters contained in it. “The evidence shows that the damages Avere paid into the county court, and it is reasonable to infer that the owners of the lands received the money. It is at all events very unlikely that plaintiff, who was then occupying the land as an agent and who had full knoAvledge of the condemnation proceedings, did not inform his principals of the seizure of a right of way over their land, and that they did not thereafer demand and receive the damages due them.”
We are therefore of the opinion, and so find, that the Sioux City & Pacific Railroad Company did, by valid condemnation proceedings, obtain a right of way 200 feet wide over the aforesaid three quarter sections of land. The right thus obtained was only an easement under which the railroad company was entitled to use the land thus condemned as a highway for the purpose of operating its road, but the fee remained in the holders of the legal title, who were the owners of the servient estate.
The appellant further contends that he has obtained title to the strip of land in controversy, or at least a part of it, by reason of his alleged open, notorious, exclusive, continuous and uninterrupted adverse possession thereof under a claim of title for more than the statutory period of limitation. This requires an examination of the evi[15] dence, and a finding on that question. It appears from the record that, except as to that part of the north 50-feet strip -which lies west of the defendant’s section house, the plaintiff’s use of the disputed part of defendant’s right of way was for agricultural purposes. The evidence contained in the" hill of exceptions shows that the plaintiff cultivated a part of the right, of way situated outside of the railroad fences, cut grass thereon, in fact, farmed the same up to said fences. Such 'use was permissive only, and not at all inconsistent with the defendant’s use of its easement. Plaintiff being the holder of the legal title had a right to cut the grass and timber, and to cultivate the right of way outside of the railroad company’s fences so long as the company did not need the grass and timber for the maintenance of its track, and such cultivation did not interfere with the proper and safe running of its trains. We fail to see anything in either the plaintiff’s claim to the grass and timber, or his cultivation of the right of way which was outside of the defendant’s fences, which would indicate that such use was other than permissive. It is true that appellant Roberts erected fences for calf pastures ’and hog lots, but the use of the right of way for such purposes was not less permissive and consistent with the company’s rights than was his cropping of the ground within the 200-feet strip. It appears that payment was made to the plaintiff of $100 by Mr. Hall, the defendant’s agent, for permission to remove earth from said disputed land, and for a waiver of damages therefor; and it is claimed that such payment was a recognition of the plaintiff’s claim of title; but it is doubtful whether that act of the company, which appears to have been done in ignorance of its rights or in forgetfulness of the true width of its easement, should be held sufficient to take from it a large tract of land which the state has permitted it to acquire and hold for the purpose of a public highway. If, as was held by the supreme court of Maryland, a railroad company cannot grant - an easement across its right of way, it certainly cannot lose its [16] right of way by unnecessarily paying out money for some of the earth thereof. Sapp v. Northern C. R. Co., 51 Md. 115. Again, the plaintiff’s possession of a large part of the 50-feet strip in question, north of the defendant’s track, was not exclusive, for the public used said strip at least to the width of an ordinary wagon track as a public road, and the same may be said of that ground which was used by the company for the storing of ties. In order to obtain title by adverse possession, the plaintiff’s use of the portion of the railroad company’s right of way in question must not have been permissive, but must have been of such a character as to thereby apprise the railroad company that the possession was intended to be adverse and hostile to its easement. The great weight of authority is that fencing and cultivating a right of way, cutting the grass and timber thereon and using the land for pasturage are not evidence of an adverse holding, because the owner of the fee has the right to do these things so long as they do not interfere with the operation of trains. They are in themselves no notice to the company that its right to use its right of way to its full width, when needed, will be contested or denied. The supreme court of Iowa, in Slocumb v. Chicago, B. & Q. R. Co., 57 Ia. 675 (a case very much like the one at bar), said: “Plaintiff’s possession was not adverse to, nor inconsistent with, the right of defendant to occupy the whole right of way, whenever it became necessary or desirable for it to do so.” The use of the plaintiff of the condemned lands along side of the railroad for agricultural purposes, so long as the same was not required for the purpose of convenience or necessity by the railroad company, was a use entirely consistent with his right as the owner of the fee, and was not incompatible with the easement granted to the railroad company. East T. V. & G. R. Co. v. Telford’s Executors, 89 Tenn. 293; Mobile & O. R. Co. v. Donovan, 104 Tenn. 465, 58 S. W. 309. In Northern Counties Investment Trust Co. v. En-yard, 24 Wash. 366, 64 Pac. 516, the court held that fencing and cultivating land for over ten years, which is sub[17] ject to a right of way, is not adverse but permissive, since it is not inconsistent with such right of way.
We are therefore of the opinion that the law is, and as a matter of right and logical reason ought to be, that no part of a railroad company’s right of way which has been validly procured and paid for, and over which it is winning its trains daily, can be lost to it by the use thereof of the owner of the adjoining land, which is permissive or consistent with the company’s use of its tracks, such as cultivating, pasturing, mowing, or cutting the timber thereof. In this state, Avhere thousands of fertile acres of railroad rights of Avay can be profitably cultivated by adjoining landoAvners Avithout detriment to the railroads, the court ought not to deprive the state and the landoAvners of such sources of profit by adopting a rule Avhich will compel the railroad companies to fence their rights of way to their full width in order to save their easements.
Plaintiff has called the court’s attention to that section of the statute which relates to fencing railroads, and has argued inf (“rent ¡ally, at least, that a railroad company loses its right of way by failing to fence it. This statute requires the fencing of a right of Avay for the protection of live stock, and it does not provide that a failure to fence shall in any respect affect its right to its easement or determine the Avidth thereof. The use of its track by a railroad company is an assertion of its right to the full width of its right of Avay; and it is immaterial AAdiere it places its fences for the exclusion of stock from its track. The location of such fences is not in itself conclusive evidence of abandonment of any part of the right of way which may be outside thereof. The statute is a police regulation, and the only penalty for its violation is an action for negligence.
It is said that there is no evidence that the 50-feet strips of right of way in dispute are necessary for the operation of defendant’s railroad, and therefore the plaintiff claims that he ought at all events to be awarded the injunction prayed for. The statute provides that a railroad company [18] may acquire for right of way purposes so much land as may be necessary therefor, not exceeding 200 feet in width. Whether the amount asked for in a condemnation proceeding is necessary or not must be determined in such proceeding; and the condemnation of a certain width for a right of way is an adjudication that said width is necessary.
The case of Northern P. R. Co. v. Smith, 171 U. S. 260, was an ejectment suit against the company to recover a portion of its right of way. The trial court found that the company claimed a 400-feet right of way under a grant by congress; that the company had actually used only 25 feet thereof; that the remaining part was not necessary for the operation of the road, and that the plaintiff should recover. • The supreme court of the United States reversed the case, holding that a grant of a 400-feet right of way was conclusive that such an amount was necessary, and that a showing of the amount actually used was immaterial. The case is also an authority that ejectment will not lie against a right of way obtained with the knowledge of the OAvner of the fee. Under this decision the plaintiff herein could not recover the land in question by ejectment, and it is therefore doubtful about his right to an injunction to prevent the company taking its own.
The most logical rule is that announced in Hurd v. Rutland & B. R. Co., 25 Vt. 116, in which the supreme court of that state held that those from whom land has been taken for a right of way retain no unquestionable right to its use for pasturage or otherwise, and that the right of the railroad company to the use and possession of its right of way is absolute during the existence of the easement.
Dietrichs v. Lincoln & N. R. Co., 13 Neb. 361, is a decision to the effect that the judgment of a railroad manager that a certain tract of land ought to be condemned for railroad purposes is prima facie evidence that said land is necessary for the operation of the road. If this be so, then the judgment of the defendant, as indicated by the [19] threat alleged that it ought to take possession of its right of way to its full width, ought to be at least prima facie evidence of the necessity of such taking, and casts upon the plaintiff the burden of proving that the company does not need the land in controversy; and the cases of Forney v. Fremont, E. & M. V. R. Co., 23 Neb. 465, and Chicago, B. & Q. R. Co. v. Hull, 24 Neb. 740, decide nothing contrary to this rule. It cannot be the law that even a railroad company must prove that it needs its property in order to recover possession of it. If plaintiff believed that defendant did not need a 200-feet right of way through his homestead, he should have raised that issue in the condemnation proceeding. He did not do so, and we do not perceive how he can do so now, either justly or lawfully, without at least tendering back to the company a proper part of the $500 which he received as compensation for the 200-feet easement.
We come now to consider the rights of the parties as to that part of the 50-feet strip in question occupied by the plaintiff’s elevator, comprising 1,900 square feet. The testimony establishes that from the west line of section 18, running north and south, which is the east line of the village of Arlington, and extending east along the railroad of the defendant’s 335 feet to the fence inclosing the section house referred to in the record, is a strip of ground 50 feet wide. Upon a part of, and near the west end of, this strip the plaintiff, in the year 1880, erected a granary extending east 100 feet and adjacent to the right of way of the defendant, measuring 50 feet from the center of its track, north. He maintained said granary at that point until the year 1882, in connection with an elevator which he had erected upon the ground which he leased of the defendant on its 50-feet right of way, at which time he removed the granary referred to across the road to the north, and erected upon the former site of said granary a grist-mill, at which time the defendant, the Sioux City & Pacific Railroad Company, at the request of the plaintiff, constructed a spur track from its main line to the plain[20] tiff’s mill for his accommodation in the shipment of the products of the mill. The spur track was constructed from near the section house over the 50-feet right of way on the north of the main tracks of the railroad toward the west, parallel with the side track to a point a short distance west and south of the mill. Sometime during the spring of the year 1885, the elevator which plaintiff was maintaining upon the ground which he leased of the defendant southwest of the mill, together with the mill, was burned to the ground, and the plaintiff discontinued the use of the leased ground. Plaintiff immediately began the construction of an elevator upon the site of the mill which was burned and which had been formerly occupied by the granaries referred to, also some coal houses which extended for some distance to the east thereof, being something near 100 feet in length, east of the elevator. From that point to the west line of the fence inclosing the section house, plaintiff occupied the ground with his lumber yard and for a stone yard until the year 1898, when he tore down a portion of the coal house and erected, or permitted to be erected, another elevator which is occupied by his lessee, who is a son of the plaintiff, and which they continued to occupy and use until the commencement of this suit. At the place where this elevator is standing the tracks of the company have never been fenced by it, but appellant Roberts has maintained a fence inclosing his own land upon a line running 100 feet north of the track, that is, along the northern boundary of the right of way as claimed by the company. The controverted strip lying between this boundary and a line running parallel with and 50 feet from the track has, with the exception of that part of it actually occupied by the above mentioned structures of appellant, continuously, since, the building of the road, been in use by the company for a section house yard, for a spur track, and as dumping and storage ground for ties, rails and like material; and by the permissive use of a part of it by the public for a road. During the same time the company have burned fire guards and cut the [21] grass growing upon the ground in like manner as with other parts of its right of way. The now existing elevator Avas built in 1900, in the face of protest and disputed right, so that ihere are no equitable considerations of estoppel or other kind to obscure legal principles or restrain their application.
It seems, then, that the strip lying 50 feet north of the unfenced portion of the company’s track, if regarded as a Avliole, Avas used in common by the appellant and the company and by the public for highway purposes. We think this fact has an important bearing upon the question AA'hether appellant had open, notorious and exclusive possession under claim of title to the grounds occupied by his buildings. That the company was ever actually notified that he made such a claim, or regarded his possession as so characterized, until about the time of the building of the neAV elevator is not asserted, and the first building he erected on the right of Avay, on a site adjoining the land in dispute, Avas built under a lease from the company. Elevators, granaries, cribs, coal sheds and similar structures are in the nature of warehouses, and serve as adjuncts and accessories to the carrying on of the trade and transportation Avhich are the principal objects for Avhich railroad companies are created. As in the case of passenger stations and depot buildings, it is Avithin the charter poAvers of the companies to erect and maintain them themselves, or they may permit them to be built by other corporations or by individuals upon their rights of way, and in either case they serve the same purpose. But in the nature of things, at least in the absence of agreement or evidence to the contrary, such occupancy must be regarded as permissive and subject to be terminated at any time when the company shall require the grounds for the erection of such structures by itself, or for occupancy by side tracks and sidings; otherwise the utmost vigilance might be required of railroad corporations to preserve the beneficial and necessary use of their rights of way for their own purposes from being destroyed or taken away from them by “squat[22] ters” and adverse claimants. Manifestly, as it seems to us, such a situation would he contrary to public policy.
Again, as we have stated above, a railroad company acquiring its right of way by condemnation proceedings under the constitution and laws of this state does not obtain a fee title thereto. It secures merely an easement in the right of way which authorizes it to build and operate its railroad as a public highway. The fee title and servient estate remains in the original owner, and may be sold and conveyed by him to another. In the very nature of things the railroad company cannot dispose of, alienate or even lease its easement for any purpose except for the operation of a railroad; and whenever the right of way is abandoned for that purpose, it reverts at once to the owner of the servient estate. Such was the right obtained by the railroad company to the land in controversy in this case. Therefore it is not manifest to us how title or right to this easement of the company can be obtained by a third person by adverse possession. It follows, as a logical consequence, that persons erecting structures, such as the ones above described, upon railway rights of way, dó so with the knoAvledge of existing conditions, and their occupancy Avill be presumed to be permissive only and by the express or tacit license of the company at least, until the latter shall be distinctly notified that the occupiers are claiming a superior right. This conclusion renders it unnecessary to decide Avhether in any case a railroad, company can be deprived of its .right of way by adverse possession. The railroad company filed a cross-bill in the district court praying for a dismissal of the plaintiff’s petition, and for a decree quieting title to its right of way over all the lands in controversy. The trial court granted the prayer except as to the elevator and site, and the right of ingress and egress thereto, adjudging the latter to be in the plaintiff. We are of the opinion that the district court Avas wrong in granting the plaintiff such relief, and for that reason the decree of that court must be reversed.
We find that the plaintiff has failed to show any ground [23] for relief; that his petition should he dismissed, and that the prayer of the defendant’s cross-bill should be granted to the extent that its easement be quieted in and to the whole of its right of way in question. It is therefore ordered that the decree of the district court be reversed, and a judgment entered in this court in accordance with this opinion.
Judgment accordingly.