(dissenting). I am unable to concur in the views expressed by the majority of the court, or in the decision affirming the judgment of the court below; and, as the case involves very important questions, I deem it proper to state somewhat at length my views as to the law applicable to the case.
The contention of the appellants, briefly stated, is that by the release or conveyance from Annie C. Phillips and Hattie C. Phillips as guardian in 1887 the railroad company acquired an ease•ment only in the premises so released, and that the leasing to Sherman Bros. & Bratager and to the defendants was for a purpose not included in the easement, and therefore that the plaintiffs retained the right to use the property for all purposes excepting those comprised in the easement, and that they are entitled to recover the rental value of the property from the time it was demised by the Illinois Central Railroad Company to the Sherman Bros. & Bratager, and to the present defendants. Appellants further contend that the alleged conveyance by Annie C. Phillips and Hattie C. Phillips as guardian was not. approved as required by the probate court, and therefore that the conveyance was invalid, and not ¡binding upon the heirs of the said J. L. Phillips, deceased. It will be observed that by the terms of the so-called conveyance the said Annie C. Phillips in her own right, and Hattie C. Phillips as guardian of the minor heirs, made the alleged conveyance as follows: “Now this indenture witnesseth; that the plaintiffs do hereby discharge and forever release the said Cherokee & Dakota Railroad Company from all damages and claims whatsoever, -on account of the taking, holding, and appropriation of said above-described land for the purpose aforesaid, but no other.” The counsel for the defendants .in support of the conclusion and judgment of the learned circuit court contend that under the laws of tire territory of Dakota as they existed at the time of the so-called original conveyance the railroad company acquired a fee-simple title to the premises in controversy, and, under the law as it then ex-*500istédj- IhersaM railroad company had-full power’and. .authority ta-malee a lease or leases, under which'defendants claim, for .any purpóse--they, might.deem' proper as provided in subdivision 3 of section 2980 of the Compiled Laws of 1887, which reads as .follows:. “Every corporation formed under this article, and every - railroad corporation • authorized to construct, operate or maintain a railroad within this territory .shall be a body corporate by,the name, designated in its articles, shall have perpetual succession, shall, have the right to s.ue and he sued, may have a common seal and .alter the ■same at pleasure, and shall also have power* * * ¡to acquire under the provisions of this article or by purchase, all such real estate and. other property as may be. necessary-'for the construction, maintenance, and operation of its railroad, and the stations, depot grounds, and other accommodations reasonably necessary to accomplish the objects of its incorporation; to hold and use the same, to lease or otherwise dispose of any part or parcel thereof, or sell the same .when not required for railroad uses, and no longer necessary to its use.”
The question is therefore clearly presented as to whether or not the railroad company acquired by the release from the Phillips heirs an actual fee in the property, or only an e.asement therein for railroad purposes. If the railroad acquired a title in fee, then, under the section of the statute above quoted, it was. fully authorized to lease or dispose of the property owned by it, and not required by it for railroad purposes, to any party and for any purpose that it might deem proper. If, on the other hand, the railroad company simply acquired an easement or right of way for railroad purposes only, then the company was not authorized to lease or dispose of any portion of the property not required by it for railroad purposes, and the plaintiffs would be entitled to recover a fair rental value of the property during the time it was occupied and used for warehouse purposes by the defendants, as in such case the use of the property would be limited to its use by the railroad company for railroad purposes only. Prior to 187/ Congress seems not to have provided for condemnation proceedings or- authorized the territory to pass laws for .that purpose. By an act approved. March 3, 1875 (Act March 3, 1875, c. 152, 18 *501Stat. 482 [U. S. Comp. St. 1901, p. 1568] ), by the third section it is provided: “That the Legislature of the proper territory may provide for1 the manner in which private lands .and possessory-claims on the public lands of the- United States may be condemned; and, where such provision shall not have been madej such condemnation may be made in accorance with section 3 of the act entitled 'Aii act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean, and to secure to the government the use of the same for postal, military and other purposes, approved July first, eighteen hundred and sixty-two/ approved July second, eighteen hundred and sixty-four.” In 1877 the Legislature of this territory enacted a railroad condemnation act which provides as follows: “Any railroad corporation may purchase and use real property for a price to be agreed upon with the owners thereof; or the damages to be paid by such'corporation for any real property taken as aforesaid, when not agreed upon, shall be ascertained and determined by commissioners to be appointed by the judge of the district court óf the county or judicial subdivision, wherein such real estate is situated, in conformity with the provisions of this article. * * * Whenever any railroad corporation shall take any real property as aforesaid, of any minor, any person insane or otherwise incompetent, or of any married woman whose husband is under guardianship, the guardian of such minor, insane or incompetent person, or such married woman with the guardian of her husband, may agree and settle with said corporation for all damages or claims by reason of the taking of such real property and may give valid releases and discharges therefor upon the approval thereof by the judge of the probate court.’* Civ. Code 1877, §§ 451, 454. This act was modeled after the Union Pacific Railroad act passed by Congress in 1864 (Act July 2, 1864, c. 216, 13 Stat. 356), and contained provisions almost identical with those of that act, but a more careful comparison of the provisions of the two acts will show a manifest distinction between the two. In the Union Pacific Railroad act (section 3), it is provided “that the guardian may agree with the company as to the damages sustained * * * and upon such agreement being made and approved by the court having supervision of the official acts of *502said guardian, said guardian shall have full power to make and execute a conveyance thereof to said company which shall vest the title thereto in the said company.” By the Dakota act it is provided for a like agreement and settlement, and then says: “That the guardian may give a valid release and discharge therefor upon the approval thereof by the judge of the probate court.” It will thus be noticed that, while by the Union Pacific Railroad Company act the guardian is authorized to make and execute a conveyance of the property to said company which shall vest the title thereto in- the said company, by the Dakota act it is provided that the guardian may grant valid releases and discharges therefor upon the approval thereof by the judge of the probate court. This distinction is very important, as by the Union Pacific Railroad Company act 'the guardian is authorized to vest the title of the minors in the railroad company, by the Dakota act the guardian is only authorized to release the damages, but no provision is made for the conveyance of the title in fee to the company.
It is contended by the appellants that the distinction between the two acts is important, in that the act of 1877 enacted by the Legislature of- the territory of Dakota elearly shows that it was not the intention of that body to vest in the railroad company anything more than an easement or right of way for railroad purposes, and that was the only effect of the instrument executed by the guardian, Hattie C. Phillips, and Annie C. Phillips to the company. There is much force in the contention of the appellants. The recitals in the release clearly show that it was not the intention of the Legislature that a title in fee should be vested in the railroad company. This instrument, as will-be observed, does not purport to convey the property to the railroad company, or any interest therein, but -simply releases the company from any damages the parties may sustain by reason of the construction of said railroad. It is important to notice the first recital in this instrument, which is: “Whereas, the Cherokee & Dakota Railroad Company deem it necessary to take, hold and appropriate for the purpose of station grounds-, tracks, sidetracks, -switches, for the location, construction, and convenient use of its railroad but for no other purpose, the following described real estate.”
*503The release seems to have been drawn with great care and with the evident purpose of limiting the use of the property 'described in the release to railroad purposes only, and the language used in the instrument clearly indicates that it was the intention of Annie C. Phillips and Hattie C. Phillips as guardian to release their interest in the property for right of way purposes only. It seems to be the general rule that such instruments should be strictly construed in accord with the manifest intention of the parties, and it seems to be the general; if not the universal, rule, unless the intention to vest in the company a title in fee simple is clearly expressed to construe such instruments as vesting in the company a right of way only. Washington Cemetery v. Prospect Park & C. I. R. Co., 68 N. Y. 591; Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295, and note; New Jersey Zinc & Iron Co. v. Morris Canal & Banking Co., 44 N. J. Eq. 398, 15 Atl. 227, 1 L. R. A. 133-136; Fitchburg Ry. Co. v. Frost, 147 Mass. 118, 16 N. E. 773; Heyneman v. Blake, 19 Cal. 579; Quick v. Taylor, 113 Ind. 540, 16 N. E. 588; Williams v. Western Union Ry. Co., 50 Wis. 71, 5 N. W. 482; Heard v. City of Brooklyn, 60 N. Y. 242; Kansas Central Ry. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190. In such cases the railroad company is not authorized1 to use the property taken by it for any purpose other than some proper railroad purpose, iand where, as in the case at bar, it attempts to lease portions of the property to individuals or companies to be used for their own private purposes, such leases are absolutely void, and parties occupying the premises under such leases are liable to the owners in fee for the value of the use and occupation of such premises while holding the same under release. Lance’s Appeal, 55 Pa. 25, 93 Am. Dec. 722; Proprietors of Locks and Canals v. Nashua & Lowell R. R. Co., 104 Mass. 1, 6 Am. Rep. 181; Forney v. Fremont, E. & M. V. R. Co., 23 Neb. 465, 36 N. W. 806; Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295; Roby v. New York Central & Hudson R. R. Co., 65 Hun. 532, 20 N. Y. Supp. 551; Cincinnati, etc., R. R. Co. v. Geisel, 119 Ind. 77, 21 N. E. 470; Roby v. Yates, 70 Hun. 35, 23 N. Y. Supp. 1108. In Lance’s Appeal, supra, the Supreme Court of Pennsylvania in discussing this question says: “The right of *504'the commonwealth to take private property without the owner's consent on compensation made, or to authorize it to be taken, exists in her sovereign right of eminent domain, and can never be 'lawfully exercised but for a public use — supposed and intended to .•benefit the public, either mediately or immediately. The power .arises'out of that natural principle which teaches that private convefiienee must yield to the public wants. This’ public interest must be at the basis of the exercise, or it would be confiscation and .usurpation to exercise it. This being the reason for the exercise of such power, it requires no argument to prove that, after the right has been exercised, the use of the property must be held in accordance with and for the purpose which justified its taking. .Otherwise it would be a fraud upon the owner, and an abttse of power. Hence it is that no one can pretend that a railroad com.pany may build, private houses and mills, or erect .machinery not .necessarily connected with the use of their franchise, within the .limits of their right of way. If it could, stores, taverns, shops, groceries, and dwellings might be made to line the sides of the .road outside of the track, a thing not to be thought of under the terms of the acquisition of the right of way. * * * They were not empowered to use the exclusive right of way granted to each for any other independent purpose than that for which it was granted. The fee remained in the private owner, and outside of the authorized use, which must be public or incidental to the public use, the proprietary rights are in the original owner.”
In the case of Proprietors of Locks, etc., v. Nashua & Lowell R. R. Co., 104 Mass. 1, 6 Am. Rep. 181, the railroad company had taken by right of eminent domain, a right of way across certain property, and had constructed thereon a freighthouse which they continued to use for several years when they established a freight .depot elsewhere, and then leased to a firm the freight depot and grounds so formerly used by it, to be used by them in their business as flour and produce dealers. And in the action by the original owners of the property against the lessees to' recover judgment, ,and on appeal, the Supreme Court of Massachusetts uses the following language: “Although the railroad corporation may derive some advantage in its freighting business from the carriage of *505■goods for its tenants) and from the receipt and delivery of their 'goods at these buildings, instead of-its' own freighthouses, yet we 'think it would be a distortion of .the agreed statement to1 regard ; these circumstances as sufficient to qualify the character of the occupation of the buildings so as to bring it within the range of any purpose ifor which the corporate franchises were granted. * * * The' fee of the land remains in the original owners, notwithstanding the location of the road. It is true the nature of the use for which 'the land is taken is such as may require, and therefore authorize, •complete possession and control by the railroad corporation. The occupation and use of land which it is entitled to enjoy is declared to be ‘permanent in its nature, and practically exclusive.’ * * * But, however extensive the right which the corporation thus takes by its location, it is'not a fee, nor a freehold estate, but an easement only; not a corporeal interest, but an incorporeal right. Its right of occupation, however exclusive, is incidental only, and as a means of exercising the privileges- and performing the functions :defined by its charter. *> * The owner of the fee in land thus subjected to a public easement may maintain an action of trespass or a writ of entry against any one whose entry or acts upon the premises would support the action, unless he can justify under the au'thority of the party having the easement. * * * 'Any uses of the land confessedly for other purposes, or not apparently for purposes permitted by its charter, are not protected by its authority. For such uses the owner may have his redress by an appropriate action. * * * In the present case, the occupation of the buildings ’ upon the demanded premises for the general purposes of trade and mechanical or manufacturing business by lessees having no other connection with the operations or interests of the corporation than ' as its tenants paying rent, and the conversion of those buildings by the corporation' from their original design into private stores or shops for the purpose of so changing their use, placed them beyond the scope of the corporate purposes and functions. It is ) such an occupation of the land as, without warrant from the public ' authority, involves' an assumption of ownership, and entitles the ' demandants to treat the corporation as tenant of the freehold by • disseisin. The fact that the corporation has a valid easement which *506entitles it to a greater or less use of the land for other purposes, is no impediment to a recovery by the demandants in this action; for the judgment will be rendered subject to such valid easement as the tenant actually has. * * * But they are entitled to a judgment which will establish their title and rights as owner of the fee, and secure them proper damages for the wrongful use of the land, as well as their costs of suit. * * * As tO' the land within the limits of the location, the tenant has made use of it for a valuable purpose. Its charter affords no justification of that use, and no protection against the claim of the owner of the fee for the mesne profits against any disseisor/’
It is further contended by respondents in support of the conclusions and judgment of the learned trial court that the plaintiffs are now estopped from asserting any claim to the property by reason of their laches in remaining so Long silent, after they attained their majority, before taking any proceedings to assert their rights as heirs of the estate of J. L,. Phillips, .deceased, as, if they were not bound by the proceedings resulting in the release signed by their guardian, they had full knowledge of all the facts pertaining to the occupation of the premises by the defendants for a number of years prior to the commencement of the present action. There is no finding, however, in the record that the defendants were in any manner misled or made any expenditure of money by reason of the omission o’f the plaintiffs to assert their rights at'an earlier date. All the proceedings in regard to the transactions between the heirs through their guardian and the railroad companies were matters of record and defendants had constructive notice therefore of the rights they were acquiring by reason of their lease from the railroad company. In order to invoke a doctrine of estoppel, it devolved upon the defendants to show affirmatively (i) “that the party making the admission by his declarations or conduct was apprised of the true state of his own title; (2) that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; (3) that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and (4) that he relied directly upon such admission, *507and will be injured by allowing its truth to be disproved.” Biddle Boggs v. Merced Mining Co., 14 Cal. 279-366; Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 23 L. Ed. 927. The former is regarded as a leading case upon this subject. In- the latter case the learned Supreme Court of the United States, speaking by Mr. Jus-. tice Field, who wrote the opinion in the case of Biddle Boggs v. Merced Mining Co., supra, says that: “It is difficult to see where the doctrine of equitable estoppel comes in here. For the application of that doctrine there must generally be some intended deception in the conduct or declarations of the party to be -estopped, or such gross negligence on his part as'to a mount to constructive fraud, by which another has been misled to his injury. Tn ail this class of cases/ says Story, ‘the doctrine proceeds upon the ground of constructive fraud or of gross negligence, which in effect implies fraud; and, therefore, when the circumstances of the case, repel any such inference, although there may be some degree of negligence, yet courts of equity will not grant relief. It has been accordingly kid down by a very learned judge that the cases on this subject go to this result only: That there must be positive fraud or concealment or negligence so gross as to amount to constructive fraud 1 Story’s. Eq. 391. To the same purport is the language of the adjudged cases. Thus it is said by the Supreme Court of Pensylvania that ‘the primary ground of the doctrine is that it would be a fraud in a party to assert what his previous conduct had denied when on the faith of that denial others have acted. The element of fraud is essential either in the intention of -the party estopped -or in the effect -of the evidence which he attempts to set up.’ Hill v. Epley, 31 Pa. 334; Henshaw v. Bissell, 18 Wall. 271, 21 L. Ed. 835; Biddle Boggs v. Merced Mining Co., 14 Cal. 368; Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Commonwealth v. Moltz, 10 Barr. (Pa.) 531, 51 Am. Dec. 499; Copeland v. Copeland, 28 Me. 539; Delplaine v. Hitchcock, 6 Hill (N. Y.) 16; Hawes v. Marchant, 1 Curt. 136, Fed. Cas. No. 6,240; Zuchtman v. Roberts, 109 Mass. 53. * * * It is also essential for its application with respect to the title of real property that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the true *508■ state of the title, but also of any convenient and available means of acquiring such knowledge. Where the conditions of the title are known to both parties 'or both’ have the same means of' ascertaining "the truth, there can be no estoppel. Crest v. Jack, 3 Watts (Pa.) 240; Knouff v. Thompson, 16 Pa. 361.”
As before stated, the defendants in the case at bar did or could have ascertained from the record all the facts pertaining to this release by the heirs of the estate of Phillips, and, so far as the record discloses, neither of these plaintiffs as the heirs of said Phillips made any representations to the defendants, or did any act calculated to influence or mislead them. I am of the opinion, therefore, that the contention of the respondents that the plaintiffs were estopped from asserting their rights by reason of their delay in instituting this action cannot be sustained. It may be proper to remark that this court has recently held that the doctrine of laches is not applicable to actions at law, but- are limited to actions in equity. Burleigh v. Hecht et al., 22 S. D. 301, 117 N. W. 367. Hence the delay of the plaintiffs in asserting their rights short of the time limited by the statute of limitations cannot avail the defendants in this action. Section 7 of article 17 of the Constitution of this state provides: “No corporation shall engage in any business other than that expressly authorized in its charter, nor shall it take or hold any real estate except such as may be necessary and proper for its legitimate business.” By section 13, article 6, Const., it is provided: “The fee of land taken for railroad tracks or other highways shall remain in the owners, subject to the use for-which it is taken.”
These provisions of the state Constitution, though adopted subsequently to the act of the Legislature, seem to be in harmony with that act, and clearly support the construction that I have given to the act, and my conclusion therefore is that the learned circuit court erred in entering judgment in favor of the defendants, and in my opinion the judgment of that court should be reversed.