Ladd, J.
1. Appeal: affirmance: I. T. L. Tulis acquired title to the land in controversy September 13, 1899, and on October 29, 1900, conveyed it to Joseph A. Clark. On October 1, 1899, the defendant took possession of a strip through it, formerly occupied as a right of way by another company, but not used since 1888, and constructed its road thereon. The facts of the case bring it within the ruling of Remey v. Railway Co., 116 Iowa, 133; approved in Russell v. Railway Co. (Iowa), 99 N. W. 1131; Gray v. Iowa Central Ry. Co., 129 Iowa 68. As Mr. Justice Bishop entertains the views expressed by the dissenting judges in Remey v. Railway, supra the members of this court are equally divided. In this situation the opinion of the trial judge must prevail, and the ruling of the district court herein be affirmed by operation of law.
2. Trespass by RAILWAY company: rights of action. II. Conceding the ruling referred to above to have been correct, the defendant was a tresspasser and continued to be such until long after Clark acquired title to the land. Tullís began an action- for damages occa- , ° ’ sioned by the trespass of the defendant, not * x 7 for the value of the easement taken, in December, 1899', and this was prosecuted by him until after the proceedings in this case were begun. A demurrer to the petition therein was then sustained and the action discontinued. The ground of this ruling does not appear, but there would seem to be little doubt that the former owner had a right of action for any damages occasioned by the tresspass *13while he owned the land. Henry v. Dubuque, etc, Ry. Co., 10 Iowa, 540. See cases collected in 15 Cyc. 993. But the trespass was continued after Clark received the title, and he might elect to sue for possession or to enjoin the continuance of the use of the land by defendant or institute condemnation proceedings. See Conger v. Railway Co., 41 Iowa, 419; Daniels v. Railway Co., 35 Iowa, 129; Birge v. Railway Co., 65 Iowa, 440; Donald v. Railway Co., 52 Iowa, 411. As held in the last case, the defendant, though liable to the present owner for its trespass since he acquired title, was not liable to him for any injuries sustained by his grantor. The owner may at any time waive the tresspass, refrain from ejecting the trespasser, and treat the corporation as though it desired to enter into and lawfully occupy the land and acquire it, under the provisions of the law, to make just compensation. Hibbs v. Railway Co., 39 Iowa, 340. This is precisely what plaintiff did; but, as the land cannot be said to have been taken from him prior to the time he became owner, the damages should be estimated as of that date, to-wit, October 29,1900.
„ 3. Eminent domain: recovery of interest. No objection was interposed to the evidence of market value before and immediately after the construction of the road, and for this reason defendant is not in a situation to complain of the estimation of damages ■ as of x # ° that time. But it did except to the instruction allowing interest on the damages from that date. This may be corrected by a modification of the judgement.
4. Railroads: right of way: acquisition. III. The conveyance from Tullís to Clark was “ subject to all railroad rights of way of all railroads now located over said land.” It is insisted that this exception included the right of way in controversy. But defendant had not acquired a right of way. It was . ° a mere tresspasser and had no right- to remain on the land. The right of way is an easement, and can only be acquired by grant, either from the owner or from the State, *14through the exercise of the right of eminent domain, or by prescription. Clayton v. Railway, 67 Iowa, 238; Barlow v. Railway Co., 29 Iowa, 276; Vermilya v. Railway Co., 66 Iowa, 606. As defendant had no right of way and was a trespasser, the conveyance was not subject to that being condemned in this proceeding.
5. Eminnent Domain: assignment of damages. IY. Tullís had not elected to treat the defendant as desiring a right of way through his premises. Eor this reason, he could not well assign any damages arising from its appropriation to Clark, and such evidence was inadmissible, though without prejudice.
6. Attorney’s Fees. The allowance of attorney’s fees in such proceedings was approved in Gano v. Railway Co., 114 Iowa, 713. Counsel for plaintiff did not abuse his privileges in the argument to the jury.
The judgment will be affirmed on condition that interest on the damages assessed prior to October 29, 1900, be remitted within thirty days from' the filing of this opinion, otherwise reversed.