The following opinion on rehearing was filed November 5, 1903. Former judgment of affirmance adhered to:
1. Federal Statute: Interpretation oe the U. S. Supreme Court. The supreme court of the United States is the final expositor of federal statutes, and its decisions construing such statutes and determining their force and effect are conclusively binding upon the state courts.
2.-: -: Railroad Right oe Wat. According to the decision of the supreme court of the United States in the case of Northern P. R. Co. v. Townsend, 190 U. S., 267, 23 Sup. Ct. Rep., 671, a congressional grant of a right of way for the construction of a railroad is upon an implied condition, which is inconsistent with the acquisition in any manner of any part of such right of way by a private individual or corporation.
3. Railroad Right of Way: Grant erom: Government: Statute oe Limitations. The right of way of the Grand Island Railway Company, having been acquired by grant from the general government for the construction of a railroad, the statute of limitations is not a defense to an action brought by said company to recover possession of a strip of land within such right of way.
Sullivan, C. J.This was an action of ejectment, brought by the railroad company to recover possession of a strip of land situated within its right of way in the city of Fairbury. Defendants asserted title by adverse possession, and, according to the findings of fact, proved exclusive occupancy under claim of right for fifteen years. The trial court, however, held that the statute of limitations had no application to the case and accordingly gave judgment in favor of the plaintiff. This judgment was brought here for review and affirmed for the reasons stated in the opinion of Commissioner Kirkpatrick {ante, p. 607). Our faith in the validity of these reasons was somewhat shaken *613by the argument supporting the motion for a rehearing, but whether they are sound or unsound it is, at this time, unnecessary and inadvisable to determine. The plaintiff acquired its right of way for the construction of a railroad by congressional grant, and it contends that the implied condition upon which the grant was made necessarily excludes the theory that a private individual or corporation may obtain title to any portion of such right of way by adverse possession or otherwise. The question thus .raised involves a construction of a federal statute, the act of July 23, 1866,* and is therefore a federal question, upon which, as the law now stands, this court is not at liberty to exercise independent judgment. Since the decision was rendered affirming the judgment of the district court, the supreme court of the United States has held, construing an act of congress in all material respects identical with the one here involved, that a state statute of limitations is not a bar to an action brought by a railroad company to recover a portion of its right of way. Northern P. R. Co. v. Townsend, 190 U. S., 267, 23 Sup. Ct. Rep., 671, 47 L. Ed., 1044. We quote at length from the opinion: “The substantial consideration inducing the grant was the perpetual use of the land for the legitimate purposes of the railroad, just as though the land had been conveyed in terms to have and to hold the same as long as it was used for the railroad right of way. In effect the grant was of a limited fee, made on an implied condition of reverter in the event that the company cease to use or retain the land for the purpose for which it was granted. This being the nature of the title'to the land granted for the special purpose named, it is evident that, to give such efficacy, to a statute of limitations of a state as would operate to confer a permanent right of possession to any portion thereof upon an individual for his private use, would be to allow that to be done by indirection which could not be done directly; for, as said in Grand Trunk R. Co. v. Richardson, 91 U. S., 454, ‘a railroad company *614is not at liberty to alienate any part of it so as to interfere with the full exercise of the franchises granted.’ Nor can it be rightfully contended that the portion of the right of way appropriated was not necessary for the execution of the powers conferred by congress, for, as said in Northern P. R. Co. v. Smith, 171 U. S., 260, speaking of the very grant under consideration: ‘By granting a right of way 400 feet in width, congress must be understood to have conclusively determined that a strip of that width was necessary for a public work of such importance.’ Neither courts nor juries, therefore, nor the general public, may be permitted to conjecture that a portion of such right of way is no longer needed for the use of a railroad, and title to it has vested in whomsoever chooses to occupy the same. The whole of the granted right of way must be presumed to be necessary for the purpose of the railroad, as against a claim by an individual of an exclusive right of possession for private purposes. To repeat, the right of way was given in order that the obligations to the United States, assumed in the acceptance of the act, might be performed. Congress having plainly manifested its intent ion that the title to, and possession of, the right of way should continue in the original grantee, its successors and assigns, so long as the railroad was maintained, the possession by individuals of portions of the right of way can not be treated, without overthrowing the act of congress, as forming the basis of an adverse possession which may ripen into a title good as against the railroad company.”
With this decision before us, and with an imperative obligation resting upon us to accept it as binding authority, it v ould be manifestly unprofitable to inquire whether a different conclusion might not be reached if the right of way had been acquired otherwise than by grant from the general government. Other cases are pending in this court which will, we are advised, bring before us in a short time the broad question of the applicability of the limitation law to actions brought by railroad companies *615to recover land acquired for rigid of way by condemnation or purchase. Until these cases, or some of them, are reached and submitted, we decline to either affirm or repudiate the doctrine announced in the former opinion. The matter will, meanwhile, remain res integra.
Note. — Northern P. R. Co. v. Townsend is cited in this opinion. This was an action in ejectment begun in the district court of Wadena county, Minnesota, by the railroad company to recover possession of two strips of land situated on either side of its track, where the same crossed three forties of the northwest quarter of section 34, township 134, range 35. It was considered that under the land grant of July 3, 1864 (13 United States Statutes at Large, 365), the filing of a map of definite location in 1871, and by the construction of the railway, the plaintiff’s predecessor acquired a right of way 400 feet in width where the road ran over what was then public domain, which included the strip in question. The defendant was the grantee of two persons who entered the forties under the United States Homestead Act, subsequent to 1871. Defendant admitted the right and constructive possession to be in the plaintiff, but claimed that possession and the right thereto had been wholly lost by reason of the fact that defendant and defendant’s grantors had been in actual, open, notorious and adverse possession of these strips, cultivating the same continuously for more than fifteen years. . The case was tried by Searle, J. Verdict and judgment for plaintiff. The judgment was reversed by the supreme court. Opinion by Collins, J., 84 Minn., 153. On error to the supreme court of the United States, the decision of the supreme court of Minnesota was reversed. Opinion by White, J.; Harlan and Brown, JJ., dissenting, 190 U. S., 367. — W. 3?. B.The judgment of affirmance is adhered to.
Former judgment adhered to.
14 Statute* at Large, p. 210, ch. 218.