| Miss. | Apr 15, 1890
delivered the opinion of the court.
In March, 1837, Perry Cohea, then the owner of the land in controversy, and of several hundred acres of which it was a part, by deed granted to the Commercial and Eailroad Bank of Vicksburg, a right of way over said lands. The conveyance is of “ a right of way and free passage over a certain tract of land .... containing about four hundred acres” (describing the land), “ not exceeding one hundred feet in width, across said land, or over any part thereof for the location and construction of a railroad from Vicksburg to Jackson; and full power and authority is given and granted to said company, their officers, servants and agents, to
The company entered upon the land under this grant, located its road, and completed its construction, probably in the year 1840.
On the 11th day of April, 1837, Cohea conveyed to one Nichols a lot of land by metes and bounds, one of the calls being a stake on the line of the railroad. In the year 1841 he conveyed another lot of land adjoining and south of said road, and in the year 1842 he conveyed yet another lot so located, of which the land demanded in this suit is a part. In each of these deeds the metes and bounds are by direction and distance, and the northeastern boundary of each lot is the line of the railroad at a distance of 12 feet 6 inches from the southwestern iron of its track.
The contention of the railroad company is that it was granted a right of way one hundred feet wide by Cohea, that its road is located along the centre line of this way, and that it is entitled to recover from the grantees of Cohea an easement over so much of the land as lies within this limit. The contention of defendants is that the southwestern line of the right of way was fixed by the location of the road along the line 12 feet 6 inches from its iron, as above noted. The evidence shows that the earth from the drainage ditch of the company was thrown along the line claimed to be the true one by the defendants, creating a bank along which a fence was erected by the grantee of Cohea, certainly more than thirty years ago, and probably from near the time of his entry. On the demanded strip of land the residence and store of the defendants are built, and, though there have been some changes in their structure, it is clearly shown that for more than thirty years the land has been occupied by houses of a permanent character. The company has never, until within a short time before the institution of
The defendants contend that the company has no right of recovery, first, because the line of its right of way was fixed at the time of the location of the road along the line to which their occupancy extends; and, second, if this be not true, then that they have acquired title by adverse possession. We are satisfied of the .sufficiency of the defense on the first ground. It is, therefore, unnecessary to consider the second.
The conveyance from Cohea did not grant a right of way to the company one hundred feet wide. The right granted was of a way “ not to exceed i/n width one hundred fed,” within which limit the officers of the company were to “ use so much land as they may deem necessary.” The way granted was not fixed by the deed as to place, quantity or direction. It was, until located, a floating right, exercisable over any portion of the land within the limit of width sped-' fied. Action was required by the company to indicate and fix the way granted, and though it may be true, as contended by counsel for the company, that ordinarily or universally the road-bed of railroads is laid along'the centre of the right of way, such custom cannot control where the conduct of the parties touching the particular right claimed is shown to have been otherwise.
None of the conveyances from Cohea (one of them having been made in less than a month from the grant to the company) contain any reservation or exception of a right of way over the land granted in favor of the company. The conveyances are absolute and unqualified of the whole land described, bounded by a fixed line as the limit of the right of way. Under these conveyances the grantees entered and acted with reference to the whole premises as owners thereof. They built fences and houses, and in this most public and unmistakable manner demonstrated their purpose to hold exclusive possession of the whole of the lot. We must assume that the company would then have made the issue and asserted its right, if it believed it to exist as now claimed. That it failed to do so is sufficient evidence of acquiescence by it in the line treated by its grantor as the boundary of the way granted.
The decisions cited by counsel for appellant, in which the user by the land-owner of a part of the right of way has been held not to be exclusive of the right of the railroad to extend its actual use and occupation, will be found to be cases in which the grant covered the land claimed by fixed lines, up to which a right was given, and not as here grants of so much land as the company may deem necessary, not to exceed one hundred feet. In those cases the right claimed was to take as occasion might require possession of the land granted. The claim here is to extend a grant, the limits of which have been fixed by the parties, so as to include lands which might have been, but were not deemed “ necessary” by the officers of the company when it located its way under the grant. We find nothing in the conveyance by which authority to locate the way might be exercised more than once, and by the location then fixed the company must be concluded.
The judgment is affirmed.