concurring.
The position of the court upon this important question should not be misunderstood. It is not intended to hold 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.” The conduct of the parties with reference to the possession may be such as to constitute notice. This is expressly stated in the third paragraph of the syllabus. In the opinion of the court in Northern P. R. Co. v. Ely, 25 Wash. *33384, 54 L. R. A. 526, referring to a former opinion.of that court, it is said: “Under the circumstances of that case it was held that the occupancy of a portion of the right of way of the railroad company by the owner of a servient estate was not inconsistent with the easement.” This is the ground of our decision in this case. It is thought that the circumstances of this case are such as to show that the occupancy of the right of way by the plaintiff was permissive on the part of the company.
It seems to be conceded that the trial court was right in its conclusion that the right of way held as an easement may be lost by adverse possession under the same conditions that á fee title right of way may be lost. Another proposition seems likewise to be conceded. The fencing and occupation of a part of the right of way does not necessarily constitute adverse possession; whether it would or would not do so depending upon the circumstances. Ordinarily, the taking possession of a piece of land and fencing it with a. substantial fence is strong evidence of an adverse possession. Such a fence is permanent in its nature, and will become a part of the real estate under the same conditions and circumstances that an elevator building would become a part of the real estate. An absolute rule that the construction of an elevator upon the land would be sufficient evidence of an adverse holding, while inclosing the land by a permanent fence would not be so considered, is inconsistent. Such a rule cannot be derived from the authorities. A permanent fence around the land would exclude the railroad company from using it as a right of way until such fence was removed, and so perhaps the building of an elevator thereon would also, and in either case the question whether the holding was adverse or permissive must depend upon the relations of the parties and the conditions surrounding the transaction. It does not seem to be needed to restate the facts in this case, but, among other conditions existing, it will be borne in mind that, when the buildings were erected upon the land in question, there had been a long course of *34dealing between these parties involving the use of a part, of the right of way by the plaintiff. When he first, began using the company’s right of way, he did so under a least' from the company for a nominal rental, and, though the lease was temporary, he erected an elevator upon the ground so leased. When this lease expired it was not formally renewed, nor Avas any neAV lease executed. The plaintiff continued in the same line of business that he had prosecuted before, and in that business he needed the the privilege of erecting similar buildings upon the company’s right of Avay. It is true that he placed buildings upon this land that are • generally considered of a permanent character, but they Avere such buildings as are commonly placed upon the right of way with the permission of the company. The former action of this plaintiff indicates this. The holding of the court is that, in vícav of such conditions as these and many other circumstances disclosed in the record, a part of which are recited in the opinion, the action of the plaintiff in erecting these buildings Avas not so inconsistent with a recognition of the right of the railroad company as to notify the company that he held this land in hostility to its rights. This is not placed upon the ground that he failed to give actual notice to the company that he did not recognize any right of the company to the possession or use of this land, but rather upon the ground that the circumstances and conditions were such that the company might reasonably suppose that the plaintiff intended to recognize the rights of the company to use this land when necessary for right of way purposes.
With this understanding of the opinion, I concur in the conclusion that the defendant is entitled to the relief asked for in its cross-petition.