104 Mass. 1
Mass.
1870
Wells, J.

Under this agreed statement, the form of action and the pleadings become immaterial. But the principles-which govern proceedings under a writ of entry are well adapted to test the relations and rights of the parties, in respect to the matters in controversy, in this suit.

In regard to that part of the lot first described which is designated as parcel B, the title of the demandants, and their right of immediate possession are admitted. The only question is whether the action may be defeated by the specification of non-*7tenure and disclaimer in defence. The defendant corporation has been in the occupation of this parcel, since 1851, by means of a permanent structure placed thereon. That occupation is, in its nature, adverse, and indicates a claim of title. That it was unintentional, and by mistake as to the true line of boundary, does not affect its legal character as a disseisin. When the suit was brought, the demandants were dispossessed; and there has been no restoration of the possession. These facts falsify the рlea, and entitle the demandants to a judgment. Allen v. Holton, 20 Pick. 458. Johnson v. Boardman, 6 Allen, 28.

The other parcels sued for are included within the limits of the location of the railroad. The buildings thereon, which had been previously adapted to the uses of the railroad, were changed so as to adapt them to the purposes of private business, and the trade of merchants. They have been so occupied from that time; being let for rent to tenants “ for their exclusive use and occupation for their said business and trade.” Although the railroad corporation may derive some advantages in its freighting business, from the carriage of goods for its ten ants, and from the receipt and delivery of their goods at these buildings, instead of its own freight-houses, yet we think it would be a distortion of the agreed statement to regard these circumstances as sufficient to qualify the charactér of the occupation of the buildings, so as to bring it within the range of any purpose for which the corporate franchises were granted.

The demandants contend that this continued appropriation of the buildings is аn abandonment of its legal rights by the corporation; and that it has become a mere disseisor; so that the demandants are entitled to resume their title and possession, freed from the servitude.

That property, once taken and held by right of eminent do» main, may bе abandoned, so as to restore the original owner to his former rights, we are not disposed to, question. But the facts here show no such abandonment. On the contrary, the tenant has been in the constant use and control of the property. The erection of the buildings was consistent with a proper enjoyment of the easement. Worcester v. Western Railroad Co *84 Met. 564. It did not destroy the easement, nor defeat its ‍​​​​‌​​​‌‌​‌‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌‌​​​‍exercise, nor indicate an intent to abandon it. Dyer v. Sanford, 9 Met. 395, 402. Hayford v. Spokesfield, 100 Mass. 491. A misuse, however great the perversion, is not an abandonment. The subsequent-unauthorized apрropriation of the buildings did not therefore put an end to the right of use for the legitimate purposes of the franchise granted. Sprague v. Waite, 17 Pick. 309, 319. An easement does not become merged, or lost, by a disseisin, or a wrongful claim of title against the owner of the servient tenement. Tyler v. Hammond, 11 Pick. 193, 220. Bеsides, the corporation has continued the legitimate exercise of its franchise over so much of the location as is required for the present use and accommodation of its tracks. Its location has not been abandoned ; and the right, derived by law from that location, to use any part of the land within its limits, is not such a mere license as will become void ab initio by reason of abuse or excess in its exercise. This position of the demand-ants is therefore not maintained, even if the testimony of the directors of the rаilroad, offered to negative the intent to abandon, be rejected.

If the misappropriation worked a forfeiture, pro tanto, of the . franchise originally authorized, or was a sufficient ground for decreeing a forfeiture, that could not be set up collaterally in a suit by a private party. Even in a direct suit for the purpose, a private party cannot obtain a decree of forfeiture, vacating, in whole or in part, a franchise or right held under lawful public authority. Proceedings of that nature are applicable only to an attempt to exercise рrivileges without lawful authority; and the exclusion thereby obtained extends only to such unlawfully assumed franchise. A public franchise can be forfeited only to the public. Boston & Lowell Railroad Co. v. Salem & Lowell Railroad Co. 2 Gray, 1. Fall River Iron Works Co. v. Old Colony & Fall River Railroad Co. 5 Allen, 221. Heard v. Talbot, 7 Gray, 113.

So far, then, as. the demandants seek to recover possession and control of the property, as of their former right, their suit must fail. If they can recover any judgment for the land coy*9ered by the location, it must be rendered subject to all the lawful rights of the tenant ‍​​​​‌​​​‌‌​‌‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌‌​​​‍under the franchises conferred by its charter and the location of its road.

It does not follow that thе action cannot be maintained at all. The fee of the land remains in the original owners, notwithstanding the location of the road. It is true that the nature of the use for which the land is taken is such as may require, and therefore authorize, complete possеssion and control by the railroad corporation. The occupation and use of land which it is entitled to enjoy is declared to be “ permanent in its nature, and practically exclusive,” in Hazen v. Boston & Maine Railroad, 2 Gray, 577, 580. The mode of occupation, and the degree of exclusiveness, necessary or proper for the convenient exercise of its franchises, are within the absolute discretion of the managers of the corporate functions. They aré the sole judges of what is proper or convenient as means for attaining the end and performing the service for which the corporate franchises were granted. Brainard v. Clapp, 10 Cush. 6. Boston Gas Light Co. v. Old Colony & Newport Railway Co. 14 Allen, 444. Ham v. Salem, 100 Mass. 350.

But however extensive the right which the corporation thus takes by its location, it is not a fee, nor a freehold estate, but an easement only.; not a corрoreal interest, but an incorporeal right. Its right of occupation, however exclusive, is incidental only, and as a means of exercising the privileges and performing the functions defined by its charter. See Boston Water Power Co. v. Boston & Worcester Railroad Co. 16 Pick. 512, 522; Weston v. Foster, 7 Met. 297 ; Tucker v. Tower, 9 Pick. 109; Harback v. Boston, 10 Cush. 295. The owner of the fee in land thus subjected to a publiс easement may maintain an action of trespass or a writ of entry against any one whose entry or acts upon the premises would support the action, unless he can justify under the authority of the party having the easement. Per Sedgwick, J., in Commonwealth v. Peters, 2 Mass. 125. Perley v. Chandler, 6 Mass. 454. Robbins v. Borman, 1 Pick. 122. Hancock v. Wentworth, 5 Met. 446.

*10The title and right of the plaintiffs in this action are therefore sufficient to enable them to maintain their writ of entry. In what manner and to what extent will the rights of the tenant serve to defeat the action, or modify the judgment 1

It is manifest that, if the general issue were pleaded, and nothing more, the title tо the freehold being thus alone put in issue, the demandants must prevail. But suppose the defendant corporation should disclaim title, and specify the rights and authority under which it held the occupation. This would in effect be equivalent to a plea of speciаl nontenure or special disclaimer. Such a plea, if according to the truth of the case, would be a complete defence to the action. But the demand-ants may falsify that plea, that is, may show that the party impleaded is, nevertheless, tenant of the freehold. Jackson on Real Actions, 96, 101. Prescott v. Hutchinson, 13 Mass. 439. Creighton v. Proctor, 12 Cush. 433, 438. Dolby v. Miller, 2 Gray, 135. Johnson v. Phillips, 13 Gray, 198. Whenever, upon issue joined on such a plea, it is made to appear that the tenant in the action has in fact asserted rights in, or done acts upon, the premises, which are not justified by the special intеrest or authority relied on, and which from their character imply a claim of title, or require title to the estate itself for their justification, the plea fails. In this respect, the only difference between a genera] and a special disclaimer or nontenure is in the evidence requisite to falsify the plea and establish a disseisin. Where there is a right which authorizes the party defendant, ‍​​​​‌​​​‌‌​‌‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌‌​​​‍for certain purposes, to disturb the soil or occupy the land, acts done in apparent conformity therewith, or even of аn equivocal nature, will be referred to that special right; although in the absence of such authority the demandant would be entitled to regard the acts as an assertion of title and a disseisin of himgelf. It is immaterial how great or how limited may be the special interest or authority set up in justification, except as it affects the degree and kind of proof required to show that it has been exceeded, or that it does not apply to or justify the acts done.

*11In respect to lands taken by railroad corporations, аlthough the discretion of the directors is unlimited, as to the mode and . extent of the use or occupation, for the purposes for which the corporation was created, yet it is definitely limited by those purposes. Any uses of the land confessedly for other purposes, cr not apparently for purposes permitted by its charter, are not protected by its authority. For such uses the owner may have his redress by any appropriate action.

A turnpike corporation may remove the earth, within the limits of its road, for the purposes of construction or repair, and may erect permanent buildings for a toll-house, with cellar and well. Tucker v. Tower, 9 Pick. 109. But it may not even take the herbage for purposes not connected with the exercise of its franchise. Adams v. Emerson, 6 Pick. 57. See also Appleton v. Fullerton, 1 Gray, 186 ; Codman v. Evans, 1 Allen, 443. A similar distinction, founded on the purpose of the use of a highway, was pointed out in Stackpole v. Healy, 16 Mass. 33. So also as to railroads, in respect of liability to taxation. Worcester v. Western Railroad Co. 4 Met. 584, 569. The rights of any party having an easement in the lands of another are measured and defined by the purpose and character оf that easement. For all purposes consistent with that easement, the right to use the land remains in the owner of the fee. Atkins v. Boardman, 2 Met. 457, 467. Phipps v. Johnson, 99 Mass. 26. The principle is the same, however extensive ‍​​​​‌​​​‌‌​‌‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌‌​​​‍the rights conferred by the easement.

In the present case, the occupatiоn of the buildings upon the demanded premises for the general purposes of trade and mechanical or manufacturing business, by lessees having no other connection with the operations or interests of the corporation than as its tenants paying rent; аnd the conversion of those buildings by the corporation from their original design into private stores or shops for the purpose of so changing their use, placed them beyond the scope of the corporate purposes and functions. It is such an occupation of the land as, without warrant from the public authority, involves an assumption ot ownership, and entitles the demandants to treat the corporation *12as tenant of the freehold by disseisin. Jackson on Real Actions, 97. Johnson v. Phillips, 13 Gray, 198. Johnson v. Boardman, 6 Allen, 28. The fact that the corpоration has a valid easement, which entitles it to a greater or less use of the land for other purposes, is no impediment to a recovery by the demandants in this action ; for the judgment will be rendered subject to such valid easement as the tenant actually hаs. Alden v. Murdock, 13 Mass. 256. Morgan v. Moore, 3 Gray, 319. Castle v. Palmer, 6 Allen, 401. The easement of the railroad corporation is of such a nature that the demandants cannot have judgment and execution that will exclude the corporation from complete possession and control of the premises for all purposes pertaining to the exercise of its corporate franchises. But they are entitled to a judgment which shall establish their title and rights as owners of the fee, and secure to them proper damages for the wrongful use of the land, as well as their costs of suit. Prescott v. Hutchinson, 13 Mass. 439. Richards v. Randall, 4 Gray, 53. Gen. Sts. c. 134, § 14.

Thе assessment of damages or mesne profits will be made with reference to the measure of title established by the suit. As to the land within the limits of the location, the tenant has made use of it for a valuable purpose. Its charter affords no justification of that use, аnd no protection against the claim of the owner of the fee for the mesne profits, against any dis seisor. The assessor will therefore estimate the damages, for all the parcels alike, according to the full, clear annual value of the land, not including the improvements. Gen. Sts. c. 134, §§ 15,16. Hatch v. Dwight, 17 Mass. 289, 298.

As the precise mode and extent of the projection of the building upon parcel B does not appear, we cannot indicate beforehand whether any allowance should be made for improvements upon that parcel, or in what manner the structure is to be disposed of. Its situation is such as will probably lead both parties to find their interests best promoted by an amicable adjustment in relation thereto.

The computation will include six years preceding the suit, and the time since ‍​​​​‌​​​‌‌​‌‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌‌​​​‍the date of the writ to the time of the return of the assessor’s report. Curtis v. Francis, 9 Cush. 427, 468.

*13In pursuance of the agreement upon which the case is brought up to us, an assessor will be appointed to estimate the damages accordingly.

Judgment for the demandants, subject to all rights conferred upon the tenants by their corporate charter and the location of their railroad over a part of the demanded premises