1, 2. This action Js of a very anomalous character. The declaration goes upon two ideas: 1st. It assumes that the defendant has been using a right of way over the plaintiff’s land with his consent, and that therefore there is an implied promise on the part of the railroad to pay to the plaintiff what such use is reasonably worth for each year. 2d. It assumes that the defendant had, with plaintiff’s consent, taken a right of way over his land, intending thereby to assert ownership over it, under an implied promise to pay him its value, and there is a count in the declaration for the value of the . land based on this implied promise. Under the evidence in the case, it is very plain that this count for the value of the land, based on the implied promise, is not sustainable, and this for the very plain reason that the plaintiff was not the owner of the land w.hep it was taken. If the original taking was under such circumstances as to raise an implied promise to pay its value to the owner, the right of action would be in the person who was the owner at the time, and not in the plaintiff. Besides, the statute of limitations, which was formerly pleaded, would be a complete reply to an action on such promise, which at best would be barred in four years.
*2963. Whether the other counts, sounding as they also do in contract, can be sustained, turns upon the question of adverse possession. If the right of way was used by the consent of the plaintiff, the company recognizing,his right and acknowledging him as its landlord, as it were, then we see no reason why an action on an implied assumpsit for1 the yearly value of this use, will not lie; but if the possession be and has been adverse, the company has plainly a title by prescription; nor, as this court has decided in 19 Georgia, 313, would an action for use and occupation lie, even if the time of the adverse holding were not long enough for a prescriptive title. It was contended in the argument that these counts for use and occupation might be treated as claims for damages for <the trespass; but, under our Code, trespass and an action on a contract cannot be joined : See Code, sec. 326!. Besides, whilst we are not disposed to hold parties to very strict rules, we think it would be going quite too far ti^give the statements in the declaration that meaning. The question of adverse possession was fairly and distinctly left to the jury by the judge, and, under the evidence, the jury might well have found in favor of the defendant on that issue. The- letters of Mr. Grant and Mr. King do not amount to any recognition of the plaintiff's claim. They refer to it only as a claim, and do not at all recognize its justice, extent, or even its precise nature.
