Stallcup, C.
It is argued here for appellant that the court erred in the charge to the jury, and erred in including in the judgment recovery for the use of the railway right of way. Having entered the land and received the receiver’s certificate, the title of appellee related back to *371the date of his filing, and he had his action of trespass for any injury done his land in the meantime, or he could waive the trespass and sue and recover for use and occupation and the value of the timber cut and fences taken in the meantime. There was therefore no error in the instructions. The court erred in including in the judgment the value of the use and occupation of the railway right of way. The appellee had no right to occupy this right of way with wood-piles, coal-kilns and habitations. Neither could any one else so occupy it by right from him. It follows that appellee had no right of recovery for such occupation of this right of way.' Upon this question, however, the authorities are not in entire harmony. A right of way for railway purposes, in its use, is necessarily more exclusive than a right of way of one farmer over the premises of his neighbor, or of the public in a highway. A grant of a certain number of feet over land for a right of way for railway purposes in the nature of things excludes other uses thereof, for the reason that other uses thereof cannot with safety be made adjustable therewith. According to the conception of congress (sec. 1, ch. 152, Supp. R. S.), this right of way was necessary, at least expedient and proper, for railway purposes, and was accordingly granted. In view of the great care and caution necessary to prevent fatal and destructive accidents in the operation of railways, a high degree of care and caution is required of those who control and operate the railways. In many of the states they are required to inclose such right of way with fences, so as to prevent the occupation thereof by anything else liable to cause accident or injury; and it must be apparent that such requirement is promotive of safety in the operation of railways. Where the railway right of way crosses other ways, there a double use is necessary, and there extraordinary care is required; and yet fatal collisions and accidents still occur at such places by reason of such additional use. A railway right of way, *372as a general rule, necessarily carries with it an exclusive right for railway purposes, and necessarily excludes right in the owner of the fee to occupy the same with woodpiles, coal-kilns, and the like. The character of the occupation of the right of way, as stated, being conceded, it follows, as matter of law, that such occupation of the railway right of way was a trespass thereon, and unwarranted in reason and by the better authority. Railway Co. v. Ward, 4 Colo. 30" court="Colo." date_filed="1877-12-15" href="https://app.midpage.ai/document/kansas-pacific-railway-co-v-ward-6560800?utm_source=webapp" opinion_id="6560800">4 Colo. 30; Railroad Co. v. Potter, 42 Vt. 265" court="Vt." date_filed="1869-11-15" href="https://app.midpage.ai/document/troy-v-potter-6578894?utm_source=webapp" opinion_id="6578894">42 Vt. 265, 274; Mills, Em. Dom. §§ 208-210. Where the reason of the general rule announced does not exist, the rule of exclusive use for the railway does not apply, as in cases of a passage provided under the railway truck for the use of the owner of the fee in passing to and from his lands, lying upon either side of the railway, when such passage thereunder is arranged so that, in such use of such passage, no conflict or interference with the use for railway purposes can occur. Railway Co. v. Allen, 22 Kan. 285" court="Kan." date_filed="1879-01-15" href="https://app.midpage.ai/document/kansas-central-railway-co-v-allen-7884842?utm_source=webapp" opinion_id="7884842">22 Kan. 285, 293, 294. It should not be inferred from what has been said that the railway company has the right to burden the property with any other or different use than that for which it was granted or acquired.
The judgment should be reversed and the case remanded, with instructions to enter judgment according to the finding, excluding the railway right of way.
Rising, 0., concurs.
De France, O.
I concur in the conclusion to reverse, but dissent from the direction to enter judgment against appellant, and from the principle announced on the first branch of the case.
Per Curiam.
For the reasons assigned in the foregoing opinion the judgment is reversed and the cause remanded to the district court, with instructions to enter judgment for the appellee, on the finding of the jury, for the sum of $210; the appellant to recover his costs in this court. . Reversed.