It appears from the evidence, which was largely in the form of an agreed statement of facts, that the plaintiff is the owner of eighty acres of land which he pureahsed in 1918 from one Mrs. Emory, and that said land and other lands of the plaintiff abut on the right of way of the defendant company. It further appears that in 1876 this right of way was duly appropriated by The Springfield, Jackson and Pomeroy Railroad Company, a predecessor in title to the defendant herein, and that by such appropriation the railroad company procured a right of way one hundred feet wide through and over the eighty acre tract aforesaid. It further appears that after this right of way was secured the railroad company, then in possession of such right of way, constructed a fence between its right of way and the lands of the plaintiff and that such fence has ever since been maintained as then constructed by the building railroad company and its successors, and that said fence has stood in its present location for approximately forty-eight years; that during said time the various owners of the land now held by the palintiff occupied said lands to the fence aforesaid; that the grantor of the plaintiff herein held such possession for approximately twenty-eight years and the plaintiff has had such possession for the past ten years. Under these facts it is the contention- of the plaintiff that his possession may be tacked to or united with the possession of his grantor in order to make a continuous and adverse possession in him for the required term of twenty-one years. Zipf v. Dalgarn, 114 OS. 291, 151 NE. 174; Powers v Malavazos, et al, 158 NE. 654. To this claim, however, the defendant company maintains that the description of the land now held by plaintiff as contained in his deed therefor specifically excludes the disputed strip for the reason that said description contains this exception:
“Save and except the right of way of the Detroit, Toledo and Ironton Railroad Company.”
The railroad company contends that by reason of this exception in the deed that such deed does not include in its boundaries the land in dispute and that possession can not tack where the deed under which the occupant claims possession does not convey the disputed land. It is apparent that counsel for the defendant company are confused in their claim in this respect for a reference to the deed as it appears of record, shows that such deed does not contain the exception claimed. The call of the line in dispute as it appears in said deed is as follows:
“Beginning at a stake in the line of Rickey’s land fifty feet from the center of the Ohio Southern Railroad (now known as the D. T. and I. Railroad) track where said line crosses the same; thence in a line parallel with said railroad track north 28% west 54 poles to a stake.”
This call begins at a point fifty feet from the center of the railroad track. There is nothing in the evidence to show that the center of the railroad track at the time these conveyances were made was or is now the center line of the right of way as it was originally appropriated. It is, we think, a safe presumption that during the last fifty years the track has varied in its position in respect to the centre line of the right of way. At any rate, it is not shown that the description contained in said deed specifically excludes the land in dispute here from the grant therein made.
As before observed, after the land was appropriated this fence was constructed by the then holding railroad company. That company thereby by its action fixed the limits of that part of the right of way it then desired to use in the operation of its road, and it thereby excluded itself from the remainder of such right of way and for forty-eight years neither that company nor any of its successors have made any claim to. or in any manner occupied or used the remainder of the right of way so excluded. It follows from this fact that the different companies which have operated the road during that time have lost their right by non-user to that part of the right of way so excluded and are conclusively presumed to have abandoned that portion of the right of way. This was the rule adopted by the Supreme Court in Platt v. Railroad Company, 43 OS. 228, and followed by this court in Railroad Company v. Village of Oak Hill, 157 NE. 817. It must be remembered that the fee to this right of way is not in the defendant and was not appropriated by the proceedings brought in 1876. The defendant company holds only an easement in the land so appropriated, which is only the right to use such lands for the operation of its railroad.
In the instant case the various companies owning the right of way in question have continuously maintained a fence which defined that part of the right of way they desired to use and did use for railroad purposes. It would be difficult to conceive of any action which would more strongly and effectively indicate what portion of the right of way they *595regarded as necessary to hold in the nse and operation of the railroad. • They could not define the limits of the portion they desired to use more completely than the fence shows they have done in this ease.
These facts establish conclusively, in our judgment, an abandonment of that part of the right of way which has never been occupied or used by the railroad company and has been excluded in the manner referred to from that part.of the right of way which has been used. It is manifest, therefore, from the foregoing facts that the fence described in the pleadings and in the evidence as it now stands must be held to define the dividing line between the plaintiff’s land and the defendant’s right of way. The defendant company is perpetually enjoined from changing the location of said fence.
Without considering in detail what the evidence shows in respect to the gates, we think that the maintenance of two gates, one on the tract of land containing eight acres and the other on the lands of the plaintiff lying immediately north of said tract, should be sufficient. These gates should be continued in their present location.
(Mauek, J., concurs; Thomas, J., dissents.)