75 Ark. 283 | Ark. | 1905
(after stating the facts.) . The appellant does not show any title to the land in controversy by adverse possession. It did not enter upon the land by virtue of any grant from the owner, or under any right of eminent domain. It appears from the answer that the grantors of appellant “previously built the tracks” on the land. But there is nothing to show that the permission of the landowner extended to any portion of the land other than that covered by the track. There does not appear to be any verbal donation of a right of way one hundred feet wide, as there was in the case of Hargis v. Kansas City, C. & S. Ry. Co., 100 Mo. 210, cited by appellant. The findings of fact show that possession was taken of a strip of land one hundred feet wide. But appellant actually occupied only that portion covered by its track for a period sufficient to give it title to the easement by prescription. The land in controversy was fenced by the grantors of appellee two years after appellant’s grantors located their right of way, and the land has since been continuously held by appellee and his grantors. In the absence of a grant or verbal donation, or appropriation under charter powers, a railroad company will not acquire title by prescription to any more land than it takes and holds by actual occupancy. ' .
The railway company claims title to its easement by adverse possession. It has no color of title, and has not shown any right of eminent domain. It denies that it has any right to the lands by permission of the owner. It has the burden of proof, and under such circumstances no presumptions will be indulged. Pedis possessio for seven years must be shown. The authorities relied upon by appellant are not applicable to the facts found by the court, which appellant concedes to be correct.
Affirmed.