delivered the opinion of the court:
The first point made by the plaintiff in error is, that a court of equity has no jurisdiction to enjoin the destruction of the easement claimed by the defendant in error in the alleged underground crossing, but that the defendant in error has an! adequate remedy at law. We have decided that equity has jurisdiction in such cases. (McCann v. Day, 57 Ill. 101; Field v. Barling, 149 id. 556; Smith v. Young, 160 id. 163; Carpenter v. Capital Electric Co. 178 id. 29.) But even if it were open to question whether the rule announced in the cases cited is applicable to the case at bar, the plaintiff in error should have raised the question by its pleadings below, and not here for the first time. It was not alleged in the answer that there was an adequate remedy at law, and the case is not one which is wholly foreign to equity jurisdiction. (Smith v. Young, supra.)
The circuit court based its decree making the injunction perpetual, upon two findings: First, that the complainant had been in the open, visible and notorious possession and occupancy of said underground crossing, as a passageway for his stock, for more than twenty years; and second, that by agreement with the company owning the railroad, the complainant had in 1884 constructed a farm crossing for wagons under said railroad, and has since then been in the open, visible and notorious possession of said crossing, using the same with wagons and teams, and that therefore the complainant has an easement across the right of way, under the company’s railroad, for a farm crossing. We are unable to agree with the circuit court in its conclusions on these questions. In the first place, it is clear from the evidence that the opening under the railroad was not made or left for the use of defendant in error as a crossing or a passway for his stock, nor for any other uses of his own. The right of way had been condemned, and the company had paid all damages which had been allowed for constructing the road through his farm. It had taken possession of such right of way and built and operated its road over it. It had the right to construct the open bridge over the slough or ravine in question and leave the open spaces, beneath for the free flowage of water without conferring any right on the defendant in error to convert the ravine into a farm crossing or creating in him an easement in the right of way for a passway of any kind. There is no evidence in the record of any adverse holding or use of the opening by defendant in error, or that he claimed to have any right to or possession or use of the way under the bridge adversely to the railroad company. His use of the opening as a passway for his stock was permissive, only, and amounted to nothing more than a license, revocable at the pleasure of the railroad company. It was necessary to leave an opening there to carry off the water. Indeed, the building of such a bridge necessarily left an opening beneath, and the evidence shows that the fences were turned in to the abutments in order to prevent the lodgment and accumulation of drift in times of flooding rains. To create in him an easement by prescription, there must have been not only a continuous and uninterrupted enjoyment and use of the passway for a period of twenty years, with the acquiescence of the owner, but it must have been adverse to the owner and under claim of right. (Chicago and Northwestern Railway Co. v. Hoag, 90 Ill. 339; Washburn on Easements, 131; 19 Am. & Eng. Ency. of Law, 9-11.) The evidence rebuts any presumption that might arise that the use by defendant in error of the opening as a pass-way was under any claim of right or adverse to the company. He proved on his own behalf that before the period of twenty years had run the company obstructed the opening with props put under the bridge, and that he asked permission of the company to fill in and level the ground in one of the openings so as to enable him to use the same as a way for wagons and teams, and'that the company consented and moved its fence as he had requested, and that he improved the passage and thereafter used it as an underground crossing. This passage under the road was used by Munsell as a mere matter of convenience to him, and was so permitted by the plaintiff in error and its predecessors. The evidence falls far short of giving rise to a presumption of a grant.
But counsel for defendant in error base their argument in support of the decree on the alleged agreement of the company and Munsell made in 1884, and upon the acts of the parties under it, whereby it is claimed a farm crossing, under the statute, was established for Munsell’s benefit, and an easement in such crossing created which plaintiff in error cannot destroy. His testimony was to the effect that he asked the company, through its local attorney, to move in its cross-fence so that he might make an underground crossing for wagons, and that afterward the, attorney gave him a letter, which he had lost, from some officer of the company, (the general manager, as he believed,) to the effect that the section boss should move the fence in and give him (Munsell) room enough to make an underground wagon-crossing; that the section boss did move the fence, and that he (Munsell) filled in with dirt and made a good crossing; that since then he has used this crossing through which to haul wood and other things not too bulky, like a load of hay, from one side of the railroad to the other. Defendant in error has continued to use the grade farm crossing near by, kept up and maintained by plaintiff in error. It appears from the evidence that plaintiff in error regarded the wooden railroad bridge as unsafe for use, because it was so situated that it could not be seen by trainmen in sufficient time to stop the train before reaching it in case it should be on fire, and that it was necessary to remove it and substitute a solid embankment in its place. It is not contended that the railroad company failed in its duty to construct and maintain a farm crossing, with gates on each side, for Munsell’s use, but only that by agreement another (an underground) crossing was established and made which the company cannot close, whatever the exi-. gencies may be in the operation of its road with safety.
We cannot conclude, from the evidence in the record, that there was any contract between the parties, or that either of them understood that there was, that a farm crossing should be or was established under the bridge or road in question which the statute would convert into an easement in favor of the defendant in error. A farm crossing, as required by the statute, had been constructed and has since been maintained and used, and the evidence establishes nothing more than a license from the company to Munsell to use the passage under the bridge at the pleasure of the company. \
The decree will be reversed and the cause remanded, with directions to dismiss the bill.
Reversed and remanded, with directions.