In the majority opinion appears this language: "No witness testified that for a period of seven years or more, the use of any area beyond that occupied by the track and ties had been of a kind to put adjacent proprietors on notice that something more was being claimed than use of the track as a means for moving cars from point to point. * * * It follows that possession in the controversy ceased at ties end on each side of the track."
There appears to be no proof in the record as to the length of the cross-ties, the distance between the rails, or the width of boxcars. Therefore, as I construe the law, we may take judicial notice, since we are dealing here with the operations of a standard gauge American railroad, that such ties are 8 feet long, the rails 4 feet 8 1/2 inches apart, and the maximum width of boxcars used is 10 feet 8 inches. Such cars obviously must extend out beyond the rails and ends of the ties on either side for a considerable distance.
The text writer in 23 C.J., page 67 (1824) bb, has this to say on the question of judicial notice: "Courts take judicial cognizance of matters of general knowledge relating to the grade and gauge of railroads, the necessity of repairs and replacements, the duties of section men, and that the ties of a railroad track usually project, slightly, in some instances, and more in others, above the surface of the track. * * * judicial notice is taken of the construction of railway carriages, and of conspicuous features of railroad rolling stock such as the extension or projection of engines and cars beyond, and outside of, the rails on which they run." *Page 312
The jury found, on proper instructions, that appellee had used, and claimed adversely, a right-of-way 8 1/2 feet from the center of the track on each side, or 17 feet in width, in its operation. Appellee had used and maintained this 17 ft. space since 1907, or for more than 40 years, and no one had ever questioned its title. Although appellee appears to have no record title, or deed, in the circumstances, I think a presumptive grant was clearly established.
"Generally a grant will be presumed on proof of all adverse, exclusive and uninterrupted possession for 20 years and such rule will be applied as a presumptio juris et de jure, whether by possibility a right may be acquired in any manner known to law." 45 F. Supp. 681.
We never reverse when there is substantial evidence to support the jury's verdict, as here.
The land described in appellee's complaint was 17 feet wide as measured 8 1/2 feet from the center of appellee's railway track to each side, and the trial court instructed the jury that if it should find that the railway company took possession of the land described in its complaint and "has for a greater period than seven years openly, continuously, adversely and exclusively had the possession of said property" then as a matter of law, the property now belongs to appellee.
There was substantial evidence that 17 feet of land was used by the railroad "for clearance" and in its operations. Obviously, brakemen and employees must have some space beyond the ends of the ties to perform such duties as mounting cars, alighting therefrom and making couplings.
M. A. Eddy testified that 17 to 17 1/2 feet was necessary, and so used, and the jury, by its verdict, has so found.
We, therefore, are not called upon to guess as to the width of the property actually claimed and used by the railroad.
From a practical standpoint, how could appellee operate, or clear its freight cars, on this track on a space *Page 313 measured by the length of a cross-tie of the standard length of 8 feet?
The jury, by its verdict, presumably composed of practical men, evidently thought that it could not be done.
Each case must be governed by its own facts and I think that there was substantial evidence here to warrant the jury's finding that the railroad was entitled to the 17 feet which it had actually claimed and used in its operations adversely for more than 40 years.
This court said in Memphis Little Rock Railroad Company v. Organ, 67 Ark. 84, 55 S.W. 952: "The possession of the railroad company, although wrong in the beginning, may ripen into a right by virtue of the continuance of the wrong for the requisite statutory period. As seven years' adverse possession, under the statutes of this state, will bar an action to recover lands, it will be sufficient to bar the action to enforce the claim of the owner against the land or to enjoin the railroad company from using it until just compensation is made, as in that time the right necessary to support the action will be divested, and there will be no basis upon which it can be maintained.' 51 Ark. 271; citing: Howard v. State,47 Ark. 431, 2 S.W. 331; Patton v. State, 50 Ark. 53,6 S.W. 227, where it was held by this court that a road becomes established as a public highway, by prescription, when the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for a public highway for the period of seven years, unless it was so used by leave, favor or mistake.' In the Patton case it was said, `the right to a public highway acquired in this manner is based upon adverse possession for the full statutory period of limitation.' The same doctrine applies with equal force to railroads. In both cases the land is taken and appropriated and used as a highway for the public benefit. We know of no reason why the same limitation should not prevail in both cases."
The judgment should be affirmed. *Page 314