As will be seen by the foregoing statement this case involves the title to 25 feet on each side of the right of way through the premises of the plaintiffs; that the defendant in February, 1917, went upon this land and enclosed 25 feet adjoining the right of way on each side with a fence taking it in with their right of way. The defendant answers and sets up that it is entitled to this land under certain condemnation proceedings had in the United States Court for the Indian Territory in September, 1904. It appears from the report of the commissioner who assessed the damages for the right of way across this piece of land in question that in making their report they incorporated the following language in the report:
"A right of way 100 feet in width across the east one-half of the northwest quarter of section 24, township 17 north range 13 east, also the following additional right of way which isneeded on account of the heavy character of the work."
This additional land taken, or attempted to be taken, is between stations 815 and 900, and is the land involved in this litigation. The plaintiffs contended that the railroad company, defendant, had never used these two 25-foot strips of land; that the land through which said railroad passed belonging to plaintiffs was perfectly level prairie land; that there were no cuts or fills made in the construction of said railroad company's roadbed; no part of this 25 feet on each side was used at the time of the construction, and had never been 'used since for railroad purposes; that in 1905, after the roadbed was made and the tracks laid, the defendant railroad company fenced the right of way and set their fence 50 feet from the center of the track on each side of its railroad, and did not fence the 25-foot strips of land on each side of the right of way up to February, 1917, when the said defendant railroad company entered upon said land over the protest and objection of the plaintiffs and set their right of way fences out on each side of their right of way so as to cover and take in 25 feet additional on each side. In May, 1917, plaintiffs instituted this suit in ejectment to recover possession of these 25-foot strips. At the trial the defendant put Mr. Kaighan, the chief engineer of the defendant railroad, and who was the engineer in charge of the construction, on the stand as a witness in its behalf. He testified that this additional 25-foot strip was not needed at the time it was condemned, for the purposes for which it was condemned, and had not been needed since, and was not needed now but said that conditions might arise when it would be needed in the future for additional trackage or siding. The plaintiffs introduced testimony to show that the plaintiffs and their predecessors in title had cultivated this 25 feet on each side in connection with their other land every year since it was condemned up to February, 1917, when the defendant over their protest extended the fence out and took in these 25-foot strips.
The question, therefore, arises as to whether the condemning of this land for a purpose for which it was not needed by the railroad company, and never has been needed for that purpose, and the fact that they left it unfenced, permitted the plaintiff to use it, and never made any claim to it for about 12 years constitutes an abandonment. Counsel for defendant in error has cited a large number of cases from other jurisdictions on the question of abandonment. Counsel for plaintiffs in error have cited two cases from this court. Canadian R. Co. v. Wichita Falls N.W. R. Co. et al.,64 Okla. 62, 156 P. 163, and Santa Fe. L. E. R. Co. v. Laune et al., 67 Okla. 75, 168 P. 1022. In both of these cases, this court held that the railroad company had condemned the right of way, and while the facts in those two cases are somewhat *Page 26 different from the facts in this case, the principles of law announced still stand the law of this jurisdiction.
In this case at the close of the testimony, the trial court sustained a motion for a peremptory instruction and directed the jury to return a verdict for the defendant railroad company. This action of the court is assigned as error. In the case of Canadian R. R. Co. v. Wichita Falls N.W. R. Co., supra, the first paragraph of the syllabus of the opinion is as follows:
"To constitute abandonment of an easement of right of way, there must be not only an actual relinquishment, but an intention to abandon; and this is a question of fact for the jury, or the court sitting as a trier of the facts under all the evidence."
It seems to us from the facts in the case, under the rule laid down by this court in the Canadian R. Co. Case, just cited, that it was error for the court to have directed a verdict for the defendant. The evidence of plaintiffs showed that they and their predecessors in title had cultivated these two strips of land, together with their other land, up to February, 1917; no claims were made to these strips of land during that time, and taking into consideration that these strips were left outside the fence of the right of way and remained outside and in the fields of plaintiffs for 12 years, and the testimony of defendant's engineer that they were not needed for the purposes for which they were condemned at the time they were condemned, and had not been needed for that purpose up to the time of trial, was sufficient evidence on the question of abandonment to have sent the case to the jury. Another question in the case is, that this land was condemned under what is known as the Enid Anadarko federal statute, and that under the terms of that statute 100 feet wide was all that the defendant railroad company was en-titled or authorized to take, except where there are heavy cuts or fills to be made, then it has authority to take as much as 100 feet on each side of the right of way, and for station grounds, side tracks depots, etc. they were authorized to take not exceeding 200 feet in width by a length of 2000 feet. Now it is conceded and proven that these 25-foot additional strips were not needed for the purposes for which they were condemned. The question arises whether they were legally condemned. In other words, can they by condemnation acquire title to these two strips of land for a purpose for which they were not needed, and never will be needed for that purpose? Can they, because they were included in condemnation proceedings, now say that they do not need them for the purpose for which they were condemened, but that they might in the future need them for other purposes?
The defendant insists that plaintiffs must recover on the strength of their own title. This is a familiar rule of law in ejectment suits and when plaintiffs showed title from the Creek Nation as they did in this case, if the case had stopped there no one would contend but what the plaintiffs would have been entitled to a verdict, but the defendant had answered and pleaded the condemnation proceedings and set that up as a defense to plaintiffs' title. Counsel for defendant also insists that plaintiff is bound by the terms of its deed which conveyed this piece of land to plaintiffs, subject to the right of way of Midland Valley R. Company across the northeast corner of said tract. This deed does not attempt to convey the right of way of the Midland Valley R. Company, but the question in the case is what was the right of way of the Midland Valley R. Company? Was it the 50 feet on each side of the track that they fenced as the right of way and made no claim to the additional 25 feet on each side for 12 years, and now say they did not need it when it was condemned, have not needed it since, and they do no know that they will ever need it. These facts in our judgment tend strongly to prove abandonment, but as this court has held in the Canadian R. Co. Case that is is a question for the jury and as we must reverse the case for the error complained of in directing a verdict in favor of the defendant in error, it will not be necessary to pass on the question of abandonment.
For the foregoing reasons, the judgment of the trial court is reversed and the case remanded, with directions to set aside the judgment rendered and grant plaintiffs a now trial.
By the Court: It is so ordered.