(dissenting). I think an erroneous construction has been put upon the deed from the ancestor of appellant to the appellee company, and that that construction grows out of an idea that the company has only an ordinary easement in the land, with all the restrictions incident to such a holding.
A railroad being a quasi public institution, it is not clear but that it would be contrary to public policy for a railroad to purchase property, and take a deed therefor which might at any time be virtually nullified by conditions subsequent, to say nothing of conditions precedent.
The theory of the court seems to be that, in purchasing this land and accepting the deed in question therefor, the railroad company bought land, its purchase to take effect on the happening of an event in the future — its assertion of a desire to use it as for railroad purposes. The very purchase and sale between the parties was an assertion of the purposes of the deed, and the right to the possession of the railroad accrued eo instanti and ipso facto, without further claim, and the holding the possession by the grantor for the time was, of course, under and by permission of the grantee, and not that of tenant in common with the grantee, and on equal footing with it.
Brora all we can determine from the evidence, the railroad company paid the full price of the land, and, if there were other consideration than the sum named in the deed, it could only be in the nature of a benefit accruing to the grantor, or to accrue to him, by the construction of the “Y” track or other railroad appliances. It is to my mind evident that the delivery of the deed was a constructive delivery of the possession of the land, and the grantor, his heirs and assigns, could not controvert the title or right of possession of the grantee on this state of case alone. How, if a reasonable time had elapsed, and the grantee had yet failed to make use of the land for railroad purposes, then, if any injury had accrued to the grantor or his heirs or assigns, he or they could .bring suit for a forfeiture, and the land would revert on a successful termination of the suit. But the grantor in such case, or those holding under him, would probably have to show that the failure to use the land lor railroad purposes had caused an injury to him - or them or to the public. At all events, the grantor, like any other tenant at will, must first deliver up possession before he can contest his landlord’s title, and in such a case as the one at bar he must assume the affirmative, and show that the railroad has forfeited its grant.
If this be not the true theory, then the judgment of the circuit court should have been reversed outright; for, the complaint being based on the deed, if the latter was operative only on a contingency, like that of an assertion of the plaintiff of its present use for the land for railroad purposes, then the suit was prematurely brought, or else the plaintiff failed to make out its whole case in its complaint. In either case the circuit court’s judgment as to the title was wrong if the opinion of this court be correct. Ho mere claim of adverse possession on the part of the grantor, or those holding under him, could justify a suit by the grantee before it had placed itself in a position to enjoy the possession of the land, for, under the ruling of the court, it had no right to the possession by reason of holding the deed merely.
Our statutes, inferentially, at least, give a construction to • these right of way deeds which may throw light on the subject, for it is stated that when a railroad company and the owner of land over which the road is to run can not agree, a suit for condemnation may be instituted. The inference is that the agreement is that the owner shall convey just such right and interest in the land as will pass on the judgment in condemnation proceedings. How, what is that interest? In the concluding words of section 2777: “Whereupon it shall and may be lawful for such railroad company to enter upon, and have the right of way over, such lands forever.” In the one case the use of the land is ascertained and determined by the courts, and in the other it is conceded to be a legitimate and proper use by the grantor, and, more than that, that the railroad company has the right to acquire the lands by condemnation proceedings, and he choses to make his own terms of sale, rather than to entrust that matter to the courts and juries.
How, I am of the opinion that the theory of the court that this deed grants an ordinary easement or a right with all the restrictions of a common-law easement is erroneous. From the very definition of easement, it appears that it is quite a different thing from the right acquired by a railroad for a right of way. And this is so patent to the courts that the most, or many, of them believe, hold and define the right of a railroad thns acquiring land to be not an easement in fact, but in the nature of an easement — that is, possessing some of the elements and incidents of a technical easement, but not all. Holding these views, I think this case should be affirmed, or at least determined as originally decided by this court.