dissenting.
I am unable to concur in that part of the majority opinion reflected in the third and fourth paragraphs of the syllabus. As I view the law and the evidence as disclosed by the record, the judgment of the trial court should be affirmed in its entirety. The majority opinion, as it seems to me, leads logically to the conclusion that no title can .be acquired by adverse possession of any part of a railroad company’s right of way except upon actual notice of the adverse claim of title which is in fact brought home to the company holding such right of way. This engrafts on the law of adverse possession an exception to the general rule for which I can perceive no sound reason nor authority in precedent. The learned trial court hearing the case1 filed therein a written opinion in which the authorities are reviewed, and the reasons for the conclusions,.reached are ably and clearly stated. In order to make myself the better understood, I desire to quote from portions of this opinion, even though in so doing I may, in á measure, repeat what is said in the majority opinion. It is to be borne in mind that the plaintiff claims by adverse possession a portion of the defendant’s right of way because of his having occupied and used it. for .agricultural purposes, and to another portion because of his having erected and occupied a mill, elevators and coal houses for purposes for which such structures are generally used.' The defendant railroad company claims a right of way of 200 feet in width, that is, 100 feet each way from the center of its main tracks. The inner 50-feet strip is in nowise in *24controversy. It is the outer strip of 50 feet to which the plaintiff lays claim by virtue of his alleged, adverse possession.
1. The interest of the railroad company in and to its right of way arising by virtue of condemnation proceedings and a right of way deed executed for value seems to be in the nature of an easement rather than a qualified or absolute fee title, and, because of the character of its ownership of its right of way, it is sought in the argument to draw a distinction as to the acquisition of title by adverse possession of an easement, such as exists in the case, and of real estate used for right of way purposes when the title is held unqualifiedly. I am of the opinion that there are no substantial grounds for a distinction. It may be the fact of the nature of the interest of the company enjoying the benefit of the right of way may have a legitimate bearing in determining the question of whether the possession of the adverse claimant was hostile and inconsistent with the possession for right of way purposes, or permissive only; dhcvwise, I think the same rules should apply to all. In this connection, the trial court in its opinion says:
“The railroad company obtained an easement in said 200-feet strip of land, but the fee thereof remained in the holders of the legal title. While counsel spoke of the plaintiff’s obtaining title by adverse possession, they doubtless meant merely that he had by such possession cut off defendant’s right to the enjoyment of that part of the easement in controversy. * * * This proposition of law seems unimportant, however, for, if it be conceded that a portion of a right of way which a railroad company holds in fee can be lost - by adverse possession, then, a right of way easement may be lost in the same way. * * * Indeed, there seems to be no sound reason for the rule that a right of Avay held as an easement cannot be lost by adverse possession, and that one held in fee can be.- The arguments pro and con for one of these propositions are quite as pertinent to the other.”
*25The courts generally, where it is held an adverse title may be acquired, regard the right, whether it be merely an easement or an absolute fee title, as being subject to loss of such right or title by adverse possession under rules equally applicable to both estates. This court has said that an easement in real estate may be acquired by open, notorious, peaceable, uninterrupted, adverse possession for the statutory period of ten years, Omaha & R. V. R. Co. v. Rickards, 38 Neb. 847; and that it may likewise be lost is hardly open to doubt. In Washburn, Easements and Servitudes (4th ed.), 717, it is said: “In the first place, if the easement has been acquired by deed, no length of time of mere nonuser Avill operate to impair or defeat the right. Nothing short of a use by the; OAvner of the premises over which it was granted, Avhich is adverse to the enjoyment of such easement by the OAvner thereof, for the space of time long enough to create a prescriptive right, will destroy the right granted.” Speaking of the right of Avay of a railroad company, the supreme court of Massachusetts say: “The right acquired by the corporation, though technically an easement, yet requires for its enjoyment a use of the land, permanent in its nature, and practically exclusive.” Hazen v. Boston & M. R. Co., 2 Gray (Mass.), 574. Or as is said by the Vermont supreme court: “If that interest is regarded as a mere servitude or easement, the land nevertheless becomes so far the property of the corporation that their right is exclusive in its use and possession during its existence, as much so as that of the OAvner or occupant of the adjoining land.” Hurd v. Railroad Company, 25 Vt. 116. See, also, Illinois C. R. Co. v. O'Connor, 154 Ill. 550; Illinois C. R. Co. v. Wakefield, 173 Ill. 564; Donahue v. Illinois C. R. Co., 165 Ill. 640.
In those states where the right of Avay of a railroad company may be lost by adverse possession, the general rule is that it makes no difference whether the railroad company has merely an easement, or has. a qualified fee, or an absolute fee simple title. Nashville, C. & st. L. R. Co. v. *26Hammond, 104 Ala. 191, 15 So. 935; Matthews v. Lake S. & M. S. R. Co., 110 Mich. 170; Pittsburg, C., C. & St. L. R. Co. v. Stickley, 155 Ind. 312; Donahue v. Illinois C. R. Co., supra; Turner v. Fitchburg R. Co., 145 Mass. 433; Northern P. R. Co. v. Ely, 25 Wash. 384, 54 L. R. A. 526.
2. In respect of the claims of the plaintiff that he had acquired by adverse possession the railroad company’s interest in the outer 50-feet strip of its right of way because of his possession and use of the land for agricultural purposes, the trial court in its opinion observes:
“That is to say, the possession of a portion of a railroad right of way must not be permissive, but must be of such a character as to thereby apprise the railroad company that the possession is intended to be and is adverse and hostile to its easement. While, a few of the authorities, notably those from Illinois, hold that fencing in and cultivating a right of way or a portion thereof constitutes adverse possession, the great Aveight of authority is that fencing and cultivating a right of Avay, cutting grass and timber thereon, and using the land for pasturage, are not evidence of an adverse holding, because the owner of the fee has the right to do these things so long as they do not interfere with the operation of trains. They are in themselves no notice to the company that its right to use its right of way to its full width, when needed, will be contested or denied. The erection, hoAvever, on the right of Avay of a mill or an elevator or any other kind of improvements Avhich become a part of the land, and which are inconsistent with the right of the company to take possession of the right of way to its full width at any time, has been held to be sufficient evidence of adverse possession to destroy the company’s easement in the land so occupied.”
It seems to me that this statement of the law is fully as favorable to the defendant railroad company as is justified by the authorities and sound reasoning, and I am unwilling to go further or to the extent to which the rule is carried in the majority opinion. To support the *27conclusion of the trial court as to the extinguishment of the right of way easement, or the acquisition of title by adterse possession to the outer 50-feet strip occupied by the plaintiff and used for purposes of agriculture, the trial court, among many cases, cites Slocumb v. Chicago, B. & Q. R. Co., 57 Ia. 675, wherein it is said: “In Barlow v. Chicago, R. I. & P. R. Co., 29 Ia. 276, a right of way was conveyed by deed to the Missouri & M. R. Co., in 1853, which the Chicago, R. I. & P. R. Co. acquired in 1866, and then constructed its road. It was held upon demurrer to the answer that the right of way was not affected by nonuser, and that the statute of limitation did not bar the defendant’s-right, notwithstanding the fact that the answer alleged that the lands over which the right of way was claimed, during this whole period of thirteen years, had been fenced and used for agricultural purposes. This case, it seems to us, is decisive, that the defendant’s right to the twenty-one feet in question is not barred by the possession of the plaintiff. The plaintiff’s possession was not adverse to, nor inconsistent with, the right of defendant to occupy the Avhole right of way, Avhenever it became necessary or desirable for it to do so.”
Also the Northern Counties Investment Trust Co. v. Enyard, 24 Wash. 366, 64 Pac. 516, wherein the court say:
“The uses for the right of way in connection with the operation of the railroad may be many. It may require a use for additional stations or side tracks. The company must so use its right of way as to reasonably prevent the communication of fires in the operation of its engines. Many of these uses, it will be observed, need not necessarily be made by the company when its line is first constructed. They must all be regarded, however, as in contemplation of the grant of the right of way. The clearing, cultivation, and fencing of a portion of the right of way not in use at the time would not seem to be inconsistent with the continuing rights of the company. We do not think the acts of possession of appellant’s grantors were such as to notify the company of an adverse claim to the *28strip of land in controversy. Such occupancy and use by appellant may be regarded as permissive.”
I think these authorities, among the many conflicting cases, announced the sounder and better rule, and, so believing, my views accord with those expressed by the learned trial judge in the opinion from which I have liberally quoted.
After discussing the authorities and the issues of law involved in the action, the questions of fact arising from the evidence in the case were disposed of by the trial court in the following manner
“Except as to that part of the north 50-feet strip which lies west of the section house, the evidence clearly proves that plaintiff’s use of said disputed part of defendant’s right of way was permissive only, and not at all inconsistent with defendant’s use of its easement. Plaintiff being the holder of the legal title had a right to cut the grass and timber and to cultivate the right of way outside of the company’s fence, so long as the company did not need the grass and timber for the maintenance of its track and said cultivation did not interfere with the proper and safe running of its trains; and the court fails to see anything in either plaintiff’s claim to said grass and timber, or his cultivation of said right of way, that was, under the greater weight of the authorities, any notice to the defendant that he would ever dispute its title to its easement, or any part thereof. It is true that he erected fences for calf pastures and hog lots; but the use of the right of way for such purposes was no less permissive and consistent with the company’s rights than was his cropping of the ground within the 200-feet strip.”
3. With reference to that portion of the right of way in controversy occupied by the elevator and other structures adjacent thereto, the trial court found that the adverse possession of the defendant had ripened into a perfect title. It is said:
“The testimony establishes that the elevator occupies 1,960 square feet. As to this land and enough more if *29necessary to provide proper and needed approaches to the elevator the prayer of the petition must he granted. It seems to me that the Kansas and California cases lay down the more logical and the sounder rule; hut the weight of authority sustains the plaintiff as to the ground on "which the elevator stands. In order to obtain a hostile possession of any part of said right of way it was necessary to give the company notice of an intent to do so. There is no evidence that plaintiff ever gave the defendant any actual notice that he was holding any part of the right of way adversely. * * * I>ut the erection of an elevator was such an appropriation of the land and was an improvement of such a permanent nature that the railroad company was thereby charged with notice that said possession was hostile. While it may be true that railroad companies foster business and encourage trade by permitting the erection of mills and elevators on their rights of way, a donation of lands for that purpose ought to be pi'esumed where no objection is made to the erection of such structures and they have been allowed to stand ten years or more.”
It seems to me there can be no question but that the erection by the plaintiff of the buildings of which mention has been made was a positive and unqualified assertion of claim of title adverse to the railroad comi>any, and that the possession was so open, notorious, continuous, exclusive and hostile in character as to charge the plaintiff as a matter of law with notice of the adverse claim. It is, in my judgment, erroneous to say that these buildings were adjuncts of the railroad property, or that the plaintiff’s business as conducted was carried on in conjunction with that of the railroad company. The plaintiff’s business was purely private and conducted for his own benefit and profit. It is true that his business ivas facilitated by having his structures on or adjacent to the railroad right of way and close by the spur track constructed by the company along the outer edge of the inner 50-feet strip of land. These facts, however, do not render the structures *30erected by the plaintiff adjuncts to the railroad, or the business conducted as being carried on in conjunction with that of the railroad company. It is to be noted that the plaintiff first had an elevator on the inner 50-feet strip and upon land he leased of the railroad company; later on, however, he erected his mill just outside of the inner 50-feet strip, took possession of and used it as his own, and in the conduct of a business exclusively pertaining to his private affairs. The mill was obviously of such a character as to become a part of the realty. It was a permanent structure. It was not erected to be removed at pleasure. Its erection and operation by the plaintiff was notice to all the world, and to the defendant company especially, that the plaintiff claimed-the property as his own,, and was using and exercising dominion over it as such owner. The same may be said of the elevator erected on the mill site after its destruction by fire, and of- the other elevator later on erected to the east of the first one, and of the coal sheds constructed between the two. These structures were all on the outer 50-feet strip and immediately adjacent to the outer line marking the boundary of the inner 50-feet strip. I can scarcely conceive of an adverse holding of real estate that would be more open, notorious and hostile to the holder of the paper title than was the possession of the plaintiff in the case at bar in so far as it relates to that portion of the right of way on which he had constructed his mill, elevators, coal houses, etc. Nor can I appreciate the necessity of actual notice of an intention to claim adversely in a case like the one under consideration, unless it be said that there can be no acquisition of title by adverse possession except upon actual notice to the holder of the paper title. The elements of adverse possession, it is said, and the rule is, I think, of universal application, are that such possession nmst be actual, visible, exclusive, hostile, and continued during the time necessary to create a bar under the statute of limitations. 1 Cyc. 981. These elements all concur in point of fact and in time in the case at bar as respects the right of way *31occupied by the structures mentioned and claimed by the plaintiff by virtue of his adverse possession. The trial court, as Avell as this court in its majority opinion, relies upon Northern Counties Investment Trust Co. v. Enyard, 24 Wash. 366, 64 Pac. 516, supra, as authority for its decision to the effect that occupancy of a right of way for farming purposes is not necessarily adverse in character, but is to be regarded as permissive only. The same court in a later case, Northern P. R. Co. v. Ely, 25 Wash. 384, 65 Pac. 555, hold that adverse possession of a portion of a railroad right of Avay, inconsistent AArith its use as such, maintained for the statutory period of limitation confers title on the occupant, and bars the right of the railroad company to recover possession. It is also held, if a railroad company permits portions of its right of Avay to be occupied by settlers under preemption and homestead laws Avithout objection for more than 10 years, and such occupants plat the land into city lots, make valuable improvements thereon, and expend vast sums of money for taxes and assessments, the company is estopped from asserting title to such portions of its right of Avay. . In the body of the opinion it is said, by Dunbar, J., Avriting the opinion of the court:
“The case of Northern Counties Investment Trust Co v. Enyard, 24 Wash. 366, 64 Pac. 516, cited in appellant’s reply brief in support of the position that possession for more than the statutory time on a railroad right of Avay Avas not adverse, but permissive, shoAVS, on examination, that the circumstances surrounding it Avere altogether different from the circumstances surrounding the case at bar. Under the circumstances of that case it Avas held that the occupancy of a portion of the right of AAray of the railroad company by the OAvner of a servient estate Avas not inconsistent Avith the easement, the occupation there being for the purposes of farming the land embraced in the right of Avay. We do not desire to extend the rule ennunciated in that case. But, whether or not the facts in that case Avarranted the conclusion reached by the court, certainly *32the circumstances shown by the record in this case will not justify the conclusion reached in that, that the occupancy of the defendants, taken in connection with the improvements and the use to which the improvements were put, was not inconsistent with the appellant’s right to use the same for railroad purposes.”
So in the case at bar I feel quite confident that the rule as respects the use of the right of way for agricultural purposes should not be extended, as is held in the majority opinion, so that the occupancy and use of a mill dr elevator and similar structures which are really a part of the real estate, and which cannot be removed without great damage and detriment to the owners, is to be regarded as a permissive holding and one not inconsistent with the company’s possession of its right of way upon which to operate its trains and conduct its business as a common carrier. It is for these reasons that I dissent and favor an affirmance of the judgment entered in the court below. I have not thought it necessary nor prudent to discuss the question of whether in any case a railroad company can be deprived of its right of way by adverse possession. For the purposes of this case, I have assumed that it could be done; and as the judgment herein must at all events, according to the majority opinion, go in favor of the railroad company, a discussion of that question by me would not change the result.