ON REHEARING.
Opinion delivered December 7, 1901.
Wood, J.The complaint alleges that plaintiff is the owner and entitled to the possession of the land in controversy; that the land ivas conveyed to it for right of way .and depot purposes bQ deed. The deed is exhibited. The complaint then alleges that the defendant is in possession of the land, and is unlawfully withholding same from the plaintiff. The answer alleged that plaintiff had lost all right and title to the land by forfeiture for noncompliance with the condition subsequent contained in the deed, i. e., that it should use the land for railroad purposes. It further alleged the adverse possession of defendant for more than seven years. The issue fairly and squarely raised by the complaint was whether the appellee was the owner and entitled to possession of the land in controversy under its deed, which, the complaint declared, conveyed the land for right of way and depot purposes. No more specific declaration was necessary to show that the appellee was suing for the land for railroad purposes. This issue was jomed by the answer setting up that the plaintiff had forfeited its right under the deed, and by claiming adverse possession for the appellant; thus setting up affirmatively title in himself, and thereby denying title and the right of° possession in the appellee for any purpose. In Morgan v. Moore, 3 Gray, 319, it is said: “The right to a fee, and the right to an easement in the same estate, are- rights independent of each other, and may well subsist together, when vested in different persons. Each can maintain an action to vindicate and establish his right; the former to protect and enforce his seizin of the fee, the latter to prevent a disturbance of his easement/' Giving force and meaning to every word and clause in the deed, the most reasonable construction is that deeds of the kind under consideration convey a perpetual easement in the land, or an easement in the nature of a fee. Neither the intention nor the effect of such instruments could be the conveyance of an estate in fee, hut only an incorporeal heredita-meat — an easement. Robinson v. Missisguoi R. Co. 59 Vt. 426; Flaten v. City of Moorehead, 53 N. W. Rep. 807; Barlow v. Chicago, etc., Ry. Co. 29 Iowa, 276; Big Mountain Imp. Co.'s Appeal, 54 Pa. St. 361; Blakely v. Chicago, Kan. & Neb. Ry. Co. 46 Neb. 272; Williams v. Western Union R. Co. 50 Wis. 70.
The deed itself contains no limitations or conditions upon the investment or enjoyment of the easement. The easement having been acquired by deed, in the absence of statutory provisions, or some stipulations in the deed itself, prescribing the time when the grantee should exercise its right by constructing and using its road, no mere nonuser could have the effect of defeating the right. But adverse possession by the owner of the fee for the statutory period would extinguish the right granted. Washburn, Serv. & Eas. 717; Elliott on Railroads, § 931; Kansas City & S. E. Ry. Co. v. Kansas City S. W. Ry. Co. 129 Mo. 62; Roanoke Investment Co. v. Ry. Co. 108 Mo. 50. In the case at bar mere' nonuser by the appellee is all that is claimed. No affirmative act of abandonment, such as misuser, conveyance for other uses, etc., is insisted upon as a cause of forfeiture.
On the question of adverse-possession we do not wish to add to our former opinion. The possession of appellant was perfectly consistent with that of appellee until he gave actual notice to appellee of his adverse holding. Erom that moment appellee had a cause of action to protect its right of easement; not before.
It follows, from what we have said, that the instructions of the court were based upon an erroneous construction of the deed. The law applicable to the issues raised by the pleadings and proof was not given. The judgment for any amount beyond mere nominal damages was inconsistent with the views we have expressed, because the proof showed that adverse possession did not commence until just before the suit was instituted.
But, notwithstanding the erroneous views of the law announced," it is obvious that, under a proper construction of the deed, and a correct announcement of the law applicable to the undisputed facts, the verdict and judgment could not have been different as to appellee’s right of possession. The judgment giving appellee the right of possession for railroad purposes will therefore be affirmed, to that extent only. As to the damages, all possible prejudice to appellant growing out of the judgment for damages can be removed by a remittitur of all in excess of a merely nominal amount. If the appellee will therefore remit, within ten days,all except one dollar, the judgment for damages will he affirmed; otherwise it will be reversed, and the canse remanded for a new trial as to the damage.
Opinion delivered January 11, 1902.