Opinion by
Mr. Justice Stewart,
If the record in the first of these appeals discloses any material fact that was not considered, or any question that was not decided when the case was before us in the former appeal reported in 228 Pa. 487" court="Pa." date_filed="1910-07-01" href="https://app.midpage.ai/document/delaware-lackawanna--western-railroad-v-tobyhanna-co-6250356?utm_source=webapp" opinion_id="6250356">228 Pa. 487, it has escaped us. We see no ground whatever for misapprehension of what was there decided; but inasmuch as the “tremendous importance of the question raised not only to the plaintiff, but to all the railroads' of Pennsylvania” is urged upon us, we shall endeavor to restate what was there decided in a way which will remove all possible ground for misunderstanding, as well any lurking suspicion that that decision conflicts with settled doctrine. First of all let it be understood that we did not there hold that title to any part of a railroad company’s right of way can be acquired by adverse user. We distinctly held that that question was not before us, and we expressed no opinion in regard thereto. The contention of the plaintiff was that the lot in dispute was part of its right of way. This was denied by the defendant, and into that inquiry we entered at some length. Our conclusion was adverse to the plaintiff’s contention on the facts before us. We have here the same facts to deal with. The lot was acquired by the railroad company more than fifty years ago by purchase. Its railroad had then been constructed upon land adjoining, and was then being operated. How the company entered upon that land originally we are not informed. To perfect its right of occupancy it subsequently purchased from the owner a strip of land 700 feet in length and 100 feet in width; that is to say, the ground used as its roadbed, with fifty feet of ground on either side of its center line. It acquired by the same conveyance, but as a separate tract, the lot in dispute, thus described in the conveyance, “Also such additional lands for depot or *84railroad purposes at ... . Tobyhanna stations, as are included within the boundaries following, to-wit: At Tobyhanna, beginning with the centre line of said railroad at a point one hundred feet north of the north corner of the foundation of the water tank and running thence westerly on a line at right angles with the line of the said railroad one hundred and twenty-five feet in width to a corner; thence southerly parallel with and one hundred and twenty-five feet from the center line of said railroad, seven hundred feet to a corner;-thence easterly on a line at right angles with the line of said railroad, one hundred and twenty-five feet to the center line of said railroad; thence along said centre line seven hundred feet to the place of beginning. Thus including on the westerly side of the railroad for the said distance of seven hundred feet seventy-five feet in width over and above and outside of said one hundred feet hereinbefore conveyed for right of way.” This lot has for years been bisected by a public road, dividing it into two nearly equal parts. The controversy is over one of these. The contention of the plaintiff assumes that the lot is part of the railroad’s right of way. Herein consists the fallacy. The fact that it was acquired by purchase, and not in the exercise of the company’s right of eminent domain, we regarded as a matter of significance; not that a railroad company may not acquire its right of way in either manner, but because certain incidents attach in the one case that do not in the other. A railroad company can acquire adversely to the owner by condemnation when it establishes a purpose in the condemnation falling within the express letter of the law, giving it the franchise to take: whereas by purchase nothing adversely can be acquired. In the one case the fact of condemnation indicates a public use; and that fact becomes established by the appropriation; in the other, it indicates nothing, and establishes nothing but title in the acquisitor. A railroad company may lawfully acquire lands not strictly essential to the operation of its road, but which may conveniently and profitably be used in connection therewith; but it is only *85for the acquiring of such as are essential that the law makes provision by allowing the high franchise to be exercised for their procurement. These essentials are a roadway, not exceeding a given width, except where physical conditions require greater places selected for sidings, turnouts, depots and engine or water stations. If it be conceded that these essential lands properly fall within what, for the want of a better term, we call right of way, and when acquired by condemnation are impressed with a public use, and therefore not to be interfered with, the question remains, can as much be affirmed of a strip of land such as that here in dispute, acquired by purchase, without any adjudication that when acquired it was needed for one of the purposes for which condemnation was allowed? We answered that question in the former appeal in the negative, and we repeat the answer here. That is to say, no presumption arises from the fact of purchase that the land so acquired was for necessary purposes in connection with the operation of the railroad. Had the railroad company at that time attempted to acquire this land by condemnation, the burden would have been upon it to show that it was necessary and essential; the declared public use would have become a matter of record, and the land could not thereafter have been devoted to other purposes. The mere act of purchase committed the company to no particular use of the land. It may say to the party from whom it purchases, we want it for some purpose for which we could legally condemn it; and in the deed the vendor may recite that it is conveyed for such purpose; but this impresses no use in which the public is concerned or could enforce; it remains a matter that concerns only vendor and vendee. What then will impress it with a public use and bring it within the sanctity of right of way? We answer nothing but an actual dedication of the land to that use by so employing it, or other equally decisive act. The plaintiff company had laid its tracks upon and over the land embraced in a larger strip, thus devoting it to a plain and manifest public use in an unmistakable way. If it has *86built switches upon the land acquired by purchase, that again is a decisive act which secures it in the enjoyment of the land acquired. But as to so much of this land as is now claimed by the defendant through adverse use, the plaintiff has done absolutely nothing upon it to indicate any purpose whatever it had in acquiring it. Up to the present time it has been free to dispose of it, or apply it to any lawful use except as its vendor can be heard to question its right so to do. For the company to say now, more than a half a century after the acquisition, that it needs it for a purpose for which it could have originally condemned it, is not only to beg the question, but in'itself affords a refutation of the claim. Fifty years and more have elapsed since it acquired title and during all that time, upon its own admission, the lot has not been required for the exercise of its franchise. How then could it have been acquired by condemnation? We are not overlooking our decisions to the effect that a railroad company may in condemning land anticipate future needs with respect to those things which are essential. We make no attempt to define the limits to this right of anticipation when we say, that attempted provision covering a period of fifty years in matters of this kind must either be pure conjecture resting on no substantial basis, or inspired prophecy, and with respect to condemnation of land the law bases its procedure on neither. Our effort has been to show the fallacy in the assumption on which the argument on behalf of the plaintiff proceeds that the land in dispute, by the fact of purchase, became a part of the railroad company’s right of way. To be a part of its right of way it must have been acquired as such by condemnation proceedings, or if acquired by purchase, the burden must be on the railroad when its right to hold is challenged to show such circumstances as would have warranted its condemnation. We state no new proposition. All that we have said has fullest warrant in Shamokin Valley Railroad Co. v. Livermore, 47 Pa. 465" court="Pa." date_filed="1864-05-04" href="https://app.midpage.ai/document/shamokin-valley-railroad-v-livermore-6232283?utm_source=webapp" opinion_id="6232283">47 Pa. 465. In Robinson v. Railroad Co., 161 Pa. 561" court="Pa." date_filed="1894-05-21" href="https://app.midpage.ai/document/robinson-v-pennsylvania-r-r-6242265?utm_source=webapp" opinion_id="6242265">161 Pa. 561, it is said by Mitchell, J., “It is not intended *87to interfere with the discretion of the corporation in the location of its stations, sidings, etc., nor with its right to do what good engineering required, but the exercise of both must be in good faith for the purposes the statute permits, and the necessity, extent and location of extra appropriations for such purposes must be definitely shown. The charter limitation of sixty-six feet is mandatory, except in the cases the charter itself specifies, and it cannot be set aside or evaded at mere will. While the discretion is in the corporation, its exercise, when challenged in a court of law, must like every right be sustained by showing the circumstances under which the charter authorizes it.” To summarize: (1) however true it may be that no part of the right of way of a railroad company can be acquired adversely, there is no authority for holding that property of a railroad not included in its right of way may not be so acquired; (2) nothing is included in right of way except what is the subject of condemnation, and when a railroad company asserts a public use in land it has purchased, to overcome the adverse possession by another, its claim can only be sustained by showing the existence of conditions which would have permitted it to condemn the land in the first instance, or actual dedication to such use; (3) if such conditions exist to-day, it may recover what it has lost by appropriate proceedings; (4) if these do not exist, it is fairly persuasive that they never did.
So far we have proceeded on the assumption that appellant has no other or wider privilege of condemnation than is allowed under the General Railroad Law of February 19, 1849, P. L. 79, and its supplements. The claim is made that it is not subject to the limitations and restrictions of that act inasmuch as it has succeeded to all the rights and privileges of the Ligetts Gap R. R. Co., incorporated under the Act of April 7, 1832, P. L. 316, and by the subsequent Act of April 14, 1851, P. L. 628, merged with appellant company, and that the charter of the earlier company contains no restriction as to the amount of land the company could appropriate. A reference to the char*88ter of that company shows that the power granted was in express terms limited to the appropriation of such land as was necessary for the exercise of the corporate franchise. The company was authorized “to occupy for that purpose (the building of its road) land which shall be necessary or suitable for the intended railroad.” The act of February 19, 1849, gives exactly the .same right, the only difference being that the latter defines expressly what are necessary and essential purposes. Certainly quite as much land was required for the construction of railroads and their operation in 1849 as in 1832. The limitation of the right to lands necessary for the intended road, fixed upon the earlier company the same burden that rests upon the appellant company when its right to take lands .is challenged, of showing the necessity that requires it. The assignments of error on this appeal are overruled.
We have yet to consider the appeal by the defendant from the same judgment. The verdict was a recovery by the plaintiff of all the land in dispute except so much as had been occupied by the defendant’s structures for more than the statutory period. The defendant claimed title to the entire lot by adverse possession. As we read the charge of the court it was a binding instruction to the effect that the defendant’s evidence was not sufficient in law to overcome the plaintiff’s written title except as to so much as was covered by defendant’s improvements. The jury certainly so understood it. Was this error? We have examined the evidence with much care without being convinced that the instruction was erroneous. It lacks one essential — the possession shown was not exclusive. Certainly it was not of such a character as to put the plaintiff on notice. The circumstances suggest a permissive use rather than a hostile holding. The defendant’s occupancy and use of the land was in some respects peculiar to itself, but nevertheless others used it for their own purposes with a like freedom. It was an open lot admitting of public travel upon and over it from all points. The public used it without restraint in hauling material for shipment from the *89plaintiff’s siding. The principal use of it by defendant was for storing lumber for like shipment. The evidence indicates strongly that the lot was regarded by the public as a common. Their use of it, concurring with that of the defendant, without let or hindrance, is wholly inconsistent with defendant’s claim that it was during this period holding hostilely to the plaintiff. The assignments of error in this appeal are likewise overruled, and the judgment is affirmed.