98 N.W. 910
Iowa
1904

Lead Opinion

Deemer, C. J.

This long statement of the issues and proceedings seems necessary to an understanding of the exact points presented. Defendant complains of the ruling made March 29th on the plaintiff’s demurrer to the defendant’s answer and amendment thereto, and of the ruling striking its substituted answer and amendments thereto, pursuant to plaintiff’s motion filed August 22, 1902. Plaintiff says that, by pleading over after the ruling on the demurrer, defendant waived any error in that ruling, and that the only question is the correctness of the ruling on the motion to strike, while the defendant contends that it has tho right to be heard on both of these rulings. There is no doubt that, when one pleads over after an adverse ruling on a demurrer, he by so doing waives the particular error in that ruling, but such ruling does not, under our present practice, constitute an adjudication; and the same question may be presented in other ways, as by motion in arrest, to direct a verdict, objections to evidence, or in any other recognized mode. Pierson v. Ind. Dis., 106 Iowa, 695; Frum v. Keeney, 109 Iowa, *395393; Geiser Mfg. Co. v. Krogman, 111 Iowa, 503. However, if it affirmatively appears that the unsuccessful party did not waive the error in the ruling, this is sufficient. Denby v. Fie, 106 Iowa, 299. As to the ruling on the motion to strikoj the only question to be considered is whether or not the substituted pleading is a mere repetition of the former one. If it is, then the ruling on the motion must be sustained. If it is not, then, no matter what the character of the new matter, the ruling must be reversed. McKee v. Ill. Central R. Co., 121 Iowa, 550, and cases cited.

1. demurrer: pleading over. 2. pltíading Over: motion to strike. But these rules must not be so construed as to prevent a party from presenting his cause of action or defense to this court on appeal. If, after a ruling on a demurrer, a party excepting 'to that ruling pleads over a mere repetition of the matter theretofore stated in the pleading demurred to, he does not, of course, waive the error in the ruling on the demurrer. By so doing he manifestly does not intend to waive the error in the ruling on the demurrer, if any there be. Moreover, it would be little short of ridiculous to say that by repleading the same matter he is pleading over, and for that reason is concluded by the ruling, and that he cannot complain of the action of the court in striking his substituted pleading from the files because a mere repetition of the matters stated in the pleading, demurred to. He either does not plead over by reasserting the same matters, or, if he does, such pleading should not be held to be a waiver of the ruling theretofore properly excepted to. Our rules of procedure are not intended as a trap to catch the unwary. Of course, if no exception is taken to the ruling on the' demurrer, and the party whose pleading is attacked makes no exception thereto, but pleads over, and the demurring party moves to strike it, because a mere repetition, the only question then to be considered is the correctness of the ruling on the motion to strike. By failing to except to the ruling on the demurrer, the pleader accepts' it as the law of the case, and the only ruling he challenges is the one on the motion to strike. This is all that is held in the *396McKee Case, supra, which, is the only case relied upon by appellee, decided since our present Code went into effect. In that case there was no exception to the ruling on the demurrer, and no error ivas assigned thereon. The only assignment was that the court erred in sustaining a motion to strike an amended and substituted petition from the files. And the only question for decision in that case was whether there_was error in striking it, because of its being a mere repetition of a former pleading which had been held insufficient. Here the defendant did not acquiesce in the ruling on the demurrer, but excepted to the same, and either did or did not re-plead the same matter in its substituted answer, as amended. If it did replead the same matter as a defense, it did not, of course, acquiesce in the ruling, for it still insisted on the matter being defensive, and did not really plead over. If it did introduce any new issue, no matter whether this new matter constituted a defense, in law, or not, the trial . . A court was m error m sustaining tlie motion to strike, based on the single ground that the pleading was a mere repetition. New matter introduced as a defense cannot be attacked by a motion to strike on the ground that it is a mere repetition of something stated in a former pleading. The sufficiency of the new matter as a defense to the plaintiff’s claim can not be tested by such a motion.

Even on plaintiff’s theory of the case, we find that new matter was pleaded in the substituted answer and amendments thereto, and the trial court ivas in error in striking it, for the reasons stated. But we find that many, if not most, of the questions presented by 'the demurrer to defendant’s first answer and amendments thereto were again presented by objections to evidence, and in defendant’s motions in arrest of judgment and for a new trial, and that we must consider the questions presented by the rulings complained of; that is to say, the rulings on the demurrer, and on the motion to strike the substituted answer as amended.

*3973. condemn*. IncesiS'fel7" usen^lve”" slon' *396Erom the record we extract the following facts, shown by the pleadings which were attacked by the plaintiff. Prior *397to March 29, 1869, John Mock was the owner of the strip land in controversy. .On thát day he con-veyed by deed of bargain and sale to the Iowa Central Kailroad Company the following described real estate, to wit: “So much of the southwest quarter of the northeast quarter, and the north'west quarter of the southeast quarter of section twenty-two, township seventy-two north of range seventeen west, as lies within fifty feet of the center line of the main track of the Iowa Central Kailroad, as the same is surveyed, staked out and marked upon the ground, being fifty feet in width on each side of said center line.” This includes the land in controversy. There is no showing in the deed that this was for a right of way, or that it was to be used for railway purposes. The deed, on its face, conveys an absolute estate in fee simple. True, work was done on the land by the grantee for railway purposes, but it never established a line of road thereon. It also appears that plaintiff obtained whatever title he has from John Mock and wife in the year 1871. TIis deed of conveyance describes his land by metes and bounds, and no part of the land in dispute is covered thereby. The description confines the tract granted to that outside of and beyond the land conveyed to the Iowa Central Kailroad Company. The grant 'is clearly limited to that outside of and beyond the right of way. Georgia R. R. v. Hamilton, 59 Ga. 171; Church v. Stiles, 59 Vt. 642 (10 Atl. Rep. 674); Maynard v. Weeks, 41 Vt. 617; Williams v. R. Co., 50 Wis. 71 (5 N. W. Rep. 482); Reid v. Klein, 138 Ind. 484 (37 N. E. Rep. 967); Perry v. Keith, 93 Me. 433 (45 Atl. Rep. 511); Newton v. R. Co., 110 Ala. 474 (19 South. Rep. 19). Plaintiff therefore never obtained title to the strip, unless he obtained it through reversion, by reason of the abandonment of the so-called right of way by the railroad company.

In another amendment to its answer, the defendant pleaded that the Centerville, Moravia & Albia Kailroad Company took possession of the right of way in question in the year 1880, laid down its track thereon, and has operated its *398road thereon ever since. It also pleaded as follows: “The defendant does not claim that the Centerville, Moravia &. Albia Eailroad Company condemned the right of way in question, which it occupied with its road, but it actually diet open and notoriously operate its roadbed on said right of way in question, and has ever since 1880, by and with the consent of the Central Eailroad Company of Iowa, in the first place, and by the present defendant as its successor. The Center-ville, Moravia & Albia Eailroad track does not extend west of the center line of said old right of way, but it claims the use of the right of way west of said center line for right of way privileges.” A demurrer to this amendment to the answer was also sustained, and exception taken. It thus appears that the strip of land has been used by the Centerville, Moravia & Albia Eailroad Company from the year 18,80 down to the present, by and with the consent of the defendant and its predecessors and successors in interest. These are the facts pleaded, and the question is, do they constitute a defense to plaintiff’s claim for damages ? What purports to be a copy of the original deed from Mock and wife to the Iowa Central Eailroad Company, of the strip of land in dispute, appears in appellee’s abstract; but it does not appear to have been introduced in evidence, and it is not made a part of the pleadings attacked. It differs materially from the one set up by defendant in its answer, in that it shows a conveyance for right of way purposes, instead of a deed in fee simple, as shown in defendant’s pleadings. We must accept the deed set up by the defendant in its answer as being the true one, and consider the case from that standpoint. Under this showing, is plaintiff entitled to recover compensation for the strip of ground taken by the defendant ? We think not, and, as briefly as may be, shall state our reasons therefor.

For the purposes of the case, we shall assume that defendant company has not used this strip of ground for railway purposes since the year 1810. But, before plaintiff can recover, he must show that the title thereto reverted to him by this nonuse'r. Remembering that this strip was conveyed *399by Mock, tbe original owner, to tbe defendant or its grantors by deed which would ordinarily convey a fee-simple title, and that plaintiff must base his claim on reversion thereof to him, we have to inquire, first, whether or not nonuser by the defendant or its grantees operated as an abandonment of its title; and, second, whether, conceding there was an abandonment, title passed to plaintiff, as an adjoining owner of the strip. It is contended that defendant took no greater title through its deed from Mock that it would have acquired by condemnation proceedings under the statute, whereby it -receives simply an easement in the land for railway purposes. If this be true, it is difficult to see how the fee could pass through nonuser of the casement from Mock, who at all times owned it, to the plaintiff, who never received any conveyance therefor. Plaintiff’s claim to it is not for public purposes, but for his own private benefit and advantage; and the Legislature can hardly be supposed to have intended to pass title taken for public use through ad cjuod damnum proceedings to a private person, even through nonuser of the title or easement obtained thereby. If such is to be the construction of the statutes, the writer, and perhaps other members of .the court, would have no hesitation in holding them, unconstitutional. But we need not speculate on this point. There is no doubt that the deed from Mock to the defendant conveyed a fee-simple title to the strip of land. Even if it had conveyed a mere easement, we have held that Code, section 2015, does not apply to an easement acquired by express grant, and that failure to use the same, even when accompanied by possession of the original owner, in the absence of any act of his preventing the use, will not defeat the easement. Noll v. Dubuque, etc., R. Co., 32 Iowa, 66. This decision was rendered long after the adoption of chapter 91, page 95, Acts 13th General Assembly, which, so far as this point is concerned, is to all intents and purposes the same as section 2015 of the Code. See also, Barlow v. C., R. I. & P. R. R., 29 Iowa, 276. These decisions have been followed in other states and jurisdictions. See Townsend v. Mich. Cent. *400R. Co., 101 Fed. Rep. 761 (42 C. C. A. 570); McCue v. Bellingham Co., 5 Wash. 159 (31 Pac. Rep. 461); Mouat v. Seattle R. Co., 16 Wash. 89 (47 Pac. Rep. 233); Durfee v. P., D. & E. Ry. Co., 140 Ill. 439 (30 N. E. Rep. 686). But we need not at this time rely upon this proposition alone; for some of the members of the court as now constituted have doubts as to its soundness.

In the instant case the deed to the defendant was not of a right of Avay, or for railway purposes, but of a fee-simple title. That a railway company has the right to take such a deed, see M. & St. L. R. R. v. Lindquist, 119 Iowa, 148; Page v. Heineberg, 40 Vt. 81 (94 Am. Dec. 378); State v. Brown, 27 N. J. Law, 13; Holt v. Somerville, 127 Mass. 408; Yates v. Van De Bogert, 56 N. Y. 526; Heath v. Barmore, 50 N. Y. 302. There cazr be no doubt .that Hock parted with the fee-simple title to this strip of land, and that defendant, a corporation duly organized, reeeiAd that fee. If it cannot hold it, it is because of some limitation in its charter or some provision of laAV. We find no provision of laAV which prevents its acquiring such title by purchase, and nothing appears as to its charter powers. Even if the state had passed an act prohibiting it from acquiring absolute title AA'e do not see how plaintiff could advantage himself thereof The original grantor might in some cases do so, but surely a stranger can not. When a corporation is authorized to hold real estate for some purposes, or to a limited extent, a deed to it is not void, although the lands were for other purposes or beyond the limit allowed. As between the parties, the deed passes title, and the state alone can inquire into the matter by direct proceedings. Natoma Water & Min. Co. v. Catkin, 14 Cal. 544; Cowell v. Springs Co., 100 U. S. 55 (25 L. Ed. 547); Nat. Bank v. Matthews, 98 U. S. 621 (25 L. Ed. 188); Barnes v. Suddard, 117 Ill. 237 (7 N. E. Rep. 477); Hayward v. Davidson, 41 Ind. 212; De Camp v. Dobbins, 29 N. J. Eq. 36; De Camp v. Dobins, 31 N. J. Eq. 671. There is broad presumption that a conveyance to a corporation is for a purpose for which it is authorized to hold *401real estate. Millers’ Bank v. R. R., 17 Wis. 372; New England Co. v. Robinson, 25 Ind. 536; Lancaster v. Improvement Co., 140 N. Y. 576 (35 N. E. Rep. 964, 24 L. R. A. 322). In Heath v. Barmore, 50 N. Y. 302, it is held, and with good reason, that, although on condemnation nothing but an easement could be acquired, yet nevertheless a railway company may acquire a fee by deed. This necessarily follows, we think, if the foregoing doctrines are sound. The cases quite uniformly hold that, where a fee simple is taken, there is and can be no reversion. See cases cited in Lewis on Eminent Domain, in section 596, and note; also Barlow v. R. Co., supra. That a deed such as the one in question conveys a fee, see Cin. R. R. v. Geisel, 119 Ind. 77 (21 N. E. Rep. 470); Hill v. Western Vermont Co., 32 Vt. 68; Nicoll v. R. Co., 12 N. Y. 121. If the conveyance was simply of a right of way, a different rule might obtain, under the doctrino announced in Brown v. Young, 69 Iowa, 625; Smith v. Hall, 103 Iowa, 95. But as we have seen, there is no such question here, and we leave that point simply with the suggestions already made. As to the power of corporations to take and hold real estate, see Jones on Beal Property in Conveyancing, section 169 et seq., and cases cited. We are firmly committed to the doctrines heretofore announced in C., B. & Q. R. R. v. Lewis, 53 Iowa, 101, where we said that such questions as the right of a corporation to hold real ' estate where it could hold for any purpose are between the corporation and the government, and not for the grantor or his grantees. In that case we cited some of the authorities already referred to with approval in this opinion.

This settles, as it seems to us, all question regarding the right of the defendant company to hold the title which it purchased, to wit, the fee-simple title. It follows, then, that, as defendant company received a deed in fee simple for the strip of land in controversy, there is .nothing to revert or pass either to Mock or to plaintiff, who claims it by reason of being an adjoining owner. Moreover, it is evident that Mock *402did not intend to convey the strip which he had theretofore conveyed to the defendant to the plaintiff, Watkins, for he expressly limited the land conveyed to him (Watkins) to that north and west of the land.in controversy. He thus recognized the force and effect of his conveyance to the defendant.

4. bstoppel. But plaintiff says, in argument, that as defendant brought condemnation proceedings to establish plaintiff’s damages, it is estopped from claiming that plaintiff has no title. This point was not made by the demurrer or in the motion to strike, nor was it made during the trial of the case in any manner whatsoever. When an estoppel is relied upon, it must be specially pleaded. This is familiar doctrine. There is no suggestion in the pleadings of any such motion. It was not made a ground of demurrer, nor does it appear to have been considered; during the trial. Bor this reason, we cannot consider it.

This settles the case, and, of necessity, calls for a reversal thereof.

The writer, however, cannot forego expressing these further thoughts, which, to his mind, are also determinative of the case: Birst, that, as defendant obtained its right of way by deed, sections 2015 and 2016 do not apply, in the absence of pleading and proof of adverse possession, under the doctrine of the Noll Case, and others like it, which have already been cited. In other words, mere nonuser will not forfeit the easement, conceding it to be such, when that easement is obtained by deed, rather than by ad quod condemnaaon proceedings. He is further of opinion that, upon nc nuser of an easement acquired either by condemnation or by deed, the title does not pass to a stranger to the legal title. If the railway company acquires nothing but an easement, the title has never been out of the original grantor; and it would be unconstitutional for the Legislature to attempt to pass that title to a stranger who never had any interest in it, and who did not wish to use it for public purposes. Plaintiff never did buy this strip of land. If the title passed to the railway company, then, of course, he never had any interest therein. *403See Cole v. Hadley, 162 Mass. 579 (39 N. E. Rep. 279). If the title did not pass to the railway company, and all that it acquired was an easement, then the title never passed from Mock; and, as he did not convey that title to plaintiff, he (plaintiff) never had any interest therein. So that, no matter which horn of the dilemma is taken, plaintiff never had any interest in the land in’ controversy. I am aware that something said in Smith v. Hall, 103 Iowa, 95, seems to run ■counter to this, but the exact question here decided was not considered or passed upon in that case. Moreover, the statute there construed was not in force when the alleged abandonment occurred in this case, and at that time the Legislature had not undertaken to direct the course of the reversion. That statute first appeared as-chapter 15, page 14, Acts 18th General Assembly. The abandonment, if there was one here, occurred before that date, for the reason that since that time, according to the allegations of the last answer, another railway has at all times been in possession of and occupying a line of road over the land in controversy, with the permission of the original grantee from Mock of the strip. ■ The conveyance in the Smith-Hall Case was not of a fee-simple title, but ■of a right of way only.

Many of the questions we have considered as arising on the demurrer and the motion to strike were raised by objections to testimony and by requests for instructions; hence, ■even if it be said that, for technical reasons, the matters already .considered are not in the case on these rulings, we should ycefc be compelled to consider them, because of these ■objections and requests.

The ilesult of the whole matter is that the case must be reversed, and remanded for a new trial in accord with the views expressed by the majority in this opinion. — Reversed.





Dissenting Opinion

Weaver, J.

(dissenting). — I cannot concur in the opinion prepared by the Chief Justice. In my judgment, it gives ■an unwarranted force and effect to the alleged conveyance to the railroad company, and reverses the policy of this court, as -settled by its former decisions.

*404I. Plaintiff’s title and his right to recover damages are secured to him by statute. The legal capacity of a railroad corporation to tako title to land is conferred by Code, section 1995, where it is provided that such company may “take and hold * * * so much real estate as may be necessary for the location and convenient use of its railway.” This languago defines both the amount or quantity of lands and the nature of the estate therein which the company’may acquire. For its roadbed and track and the operation of its trains it reasonably needs no more than is implied in the words “right of way” — an expression, the universal use of which by railway men and by the people generally, indicates the accepted and correct idea of the corporate tenure of the narrow strip of land devoted to the construction of the road and operation of trains. The same statute (Code, section 1999) provides two methods by which a right of way may be acquired: First, by grant from or agreement with the landowner; and, second, by condemnation proceedings. Ey -either method the thing acquired is a right of -way. If it is conveyed by deed absolute in form, the company doubtless takes a fee; but it is a fee in land for a right of way, and carries with it at all times the possibility of reversion to the owner of the tract from which it was taken in the event of voluntary abandonment of such public use by the' grantee. This proposition is not a denial of the corporate power to hold land — aif objection which can be raised by the state alone — but goes simply to the construction and effect of the conveyance under which the corporation claims. The case of R. Co. v. Lewis, 53 Iowa, 101, cited and relied upon by the majority, is therefore clearly inapplicable. If the company takes title to land subject to an express or implied qualification by which in a certain contingency such title is lost by reversion or otherwise, there is, I think, no rule or principle which prevents a party claiming the benefit of such reversion from asserting his right at law or in equity according to the usual modes of procedure. Quo warranto by the state is designed to protect public interests, and not to enforce private rights. The question pre*405seated, in the case before us is strictly one of private right — ■ one with which the public has no immediate concern — and action for its enforcement will lie against the corporation precisely as it would against a private individual. Continuing our examination of the same statute we find that, after prescribing the methods by which a railroad company may acquire title to right of way, it further provides that such right may be lost, and the land restored to the original owner, or to his grantees, of the tract from which it was takén, whenever it shall appear that the company has voluntarily abandoned and failed to make public use of such right of way for a prescribed period of years. In providing for this reversion, the statute makes no discrimination between a right of way obtained by grant and that which has been obtained by condemnation, For us to thus discriminate is for the. court to ingraft upon the statute an exception which the Legislature did not make — a venture in judicial legislation which we should be careful to avoid. The case of Noll v. R. R., 32 Iowa, 66, cited by the majority, gives no countenance to such holding. The statute there construed did not provide for any reversion of the title to the owner of the original tract, or to any other person. It provided simply that an abandonment of a right of way for a certain period rendered it liable to be taken by another company and appropriated to the use of another road. In other words, by the statute then in force the state, in the exercise of its power of eminent domain, declared that the right of way, having once been appropriated to public use, might, upon abandonment by the original beneficiary of such appropriation, be occupied and utilized by another company without the payment of damages to those who had already received compensation from its predecessor. True, in the case cited the court says the right of way there in dispute was obtained by grant, and that the “easement” thus acquired was not subject to extinguishment by mere lapse of time. The proposition thus stated is undisputable, and it was equally true of an easement by condemnation. The statute at that time did not provide any loss of the rail*406road easement, however acquired, by mere nonuser without adverse possession; nor were easements generally liable to be thus extinguished at common law. The case at bar presents an entirely different situation. Kailroad companies, it must be kept in mind, are creatures of the legislative power, with public duties and functions; and it is unquestionably within the province of the Legislature to provide that the failure of a corporation to perform such duties or exercise such functions for an unreasonable length of time shall operate to extinguish its claim to an abandoned roadbed or right of way, in favor of another company, or of the owner of the land from which such way was taken. Such exercise of legislative power is as legitimate and just as is the enactment of the general statute of limitations. Smith v. Hall, 103 Iowa, 95. In the exercise of this power, the Legislature, after the decision of the Noll Case, enacted chapter 65, page 59, Laws of the Fifteenth General Assembly, the substance of which was re-enacted in the present Code (section 2015), to which reference has already been made. By these provisions, as above noted, after a right of way has been abandoned by the first taker certain years of grace are given, in which another company may avail itself thereof, failing which the title acquired to such right of Avay is extinguished, and vests in the person or persons owning the tract from which it was taken. Smith v. Hall, supra; Remey v. R. R., 116 Iowa, 133. After the passage of that act the railroad company which had formerly acquired the right of way in controversy did permit it to remain abandoned, unoccupied, unused, and unimproved for more than the statutory period; and thereupon, unless the statute is to be emasculated by judicial amendment, the owners of the original tract became vested with an indisputable title to this land. Of those owners, tin3 -plaintiff: is one. The construction of the statute for which 1 contend was approved by this court, after prolonged and mature consideration, in Remey v. R. R., supra—a decision, the reasoning and philosophy of which are wholly discredited by the majority opinion in the case before us. The Noll Case, *407which the Chief Justice makes a corner stone of his argument, was in the Remey Case shown to have been robbed of its authority as a precedent by the change in the statute to which I have called attention. That fact ivas emphasized both in the prevailing opinion, written by Ladd, C. J., and in the concurring opinion by McClain, J.; the former declaring that the new statute “has obviated the result of the decision in the Noll Case, by enacting that the right of way shall revert to the owner of the land out of which it ivas taken, rather than to the state, regardless of how acquired, when there has been eight years or more nonuser.” In view of the recent date of this holding,, I confess to some surprise to find a majority of the court giving its adherence to a proposition which in effect reaffirms the authority of the Noll Case and declares that the statute then in force, containing no provision for a reversion of an abandoned right of way to the landowner, is as to the question here in issue, “to all intents and purposes the same as section 2015 of the Code,” which does contain such provision.

II. The point made in the majority opinion, that, as plaintiff claims under a deed describing his land as bounded upon one side by the outer line of the railroad right of way, he cannot claim anything beyond that line by virtue of the statutory reversion of title, and the further point that the reversion, if any, is to the original grantor, and not to his grantees of the tract on either side of the right of way, are both unequivocally disapproved in Smith v. Hall, supra. There a right of way had been granted (not condemned.) through a tract of farm land. Later the owner conveyed to one grantee all the land on one side of the right of way, and to another grantee all the land upon the other side; the right of Avay being in each instance as clearly excluded from the grant as in the case at bar.' The principal question presented by that appeal was Avhether, upon abandonment of the right .of way, the statutory reversion inured to the benefit of the grantees of the divided tract, or to the original grantor. We 'there pointed out that, the land having been subjected to a *408public use, “it was competent for the Legislature to say to whom it should revert when abandoned,” and that, applying the clear and unequivocal language of the statute, the right to the reversion followed the title to the tract from which the abandoned way was originally taken, and that the original grantor, in conveying the separated parcels of said tract, “parted with whatever right she had to the reversion.” It does not clearly appear in that case under what form of deed the title was acquired by the company, but we distinctly declared that a railroad corporation’s interest in its right of way “is the same, whether granted or condemned.” This proposition was expressly reaffirmed in the Remey Case, where it is said that, the land having been acquired by the railroad company through the power of the state for a public use, the reversion, in the absence of statute would be to the state; and it is therefore within the power of the Legislature to say whether such lands should be longer reserved for public uses, or should be restored to private ownership, with the 'tract of which it was originally a part. And this we again declared was equally true, regardless of how the railroad title was acquired. Unless, therefore, we are to overturn those precedents, as well as the statute, it is of no moment whatever whether the conveyance to the company of the way in controversy was by deed absolute or by condemnation. The statute, having once run, is an insurmountable bar to the assertion of any right under such conveyance, regardless of its form or substance.

III. That the conveyance from John Mock was for' a right of way is not, in my judgment, negatived by the defendant’s pleading to which the demurrer was sustained. The copy of the deed set up as an exhibit professes to disclose only the “material part.” Having thus brought the conveyance into the record and having by the abstract exhibited to this court only an incomplete statement of its contents, I think it was competent for the appellee to show by an amended abstract, as he has done, that the deed contained a provision expressly limiting the grant to right of way pur*409poses. Moreover, the appellant, over and over again, in abstract and in argument, concedes, in effect, that such was the nature of its title. In treating' the deed as absolute in form, and measuring the appellant’s right on that basis, we are giving it more than it has asked at our hands.

IV." While fully satisfied that the case is governed by the statute, there are certain general principles to which I ■desire to call attention. There is a fundamental and ineradical distinction between a fee-simple title in lands held by a corporation for public or quasi public uses, and a fee-simple title to lands held by an individual for private uses. Of the cases usually cited" to uphold the contrary doctrine, an examination will reveal that most of them are based upon constitutional or statutory provisions, or upon extraordinary grants of power contained in special charters, which have never obtained in this state. A grant or conveyance to a corporation is, as is well said by the Chief Justice presumed to be for a purpose for which it is authorized to hold real estate. Stated in the language of the distinguished jurist and law writer Chief Justice Redfield, “A contract to convey land for a particular use or to a party having capacity tó acquire a certain estate in land for a particular use, must of necessity carry the implication of such limitation upon the estate to be conveyed.” Hill v. R. R., 32 Vt. 74. To hold that the fee in land conveyed to a'railroad company for its right of way is thus impressed with a public use, and that when abandoned it is subject to reversion, as a matter of common right ■or of statutory direction, is not in the least inconsistent with the existence of power in the company to take lands by way of donation or.in payment of debt, or for any ordinary commercial or business purpose consistent with the purposes for which the company is organized, and convey them again in fee simple for private uses. Hill v. R. R., supra. Such power is often essential for the accomplishment of the public purposes which railroads are designed to promote. Title to such lands is acquired by the free and voluntary act of the individuals from whom the conveyance is received. But the *410individual who conveys land for right of way acts under a large measure of compulsion. lie cannot prevent the appropriation of his property. His only choice, as is pointed out by Judge Redfield, is to say whether he will fix the price of the dismemberment of his lands by agreement with the company, or have the saíne fixed by a jury. The only possible justification for thus holding the landowner at bay, and exacting title from him by conveyance or condemnation, is found in the theory that such appropriation for railroad purposes is a matter of public benefit, to which individual right must yield. It follows, therefore, as an inevitable conclusion, that when the public use is permanently abandoned, and the public benefit which was the consideration for the transfer of title ceases to be served or promoted, the right and title of the corporation ceases therewith. Moreover, lands obtained for right of way are to be distinguished from other lands obtained by the company, in this: the latter, as a rule, are obtained in such shape and form that they may ordinarily be bought, used, and sold for general purposes without imposing any special, hardship upon other proprietors or upon the public, while the right of way consists of a narrow strip extending over and across lands devoted to agricultural, residence, and business uses. Much of this strip, when abandoned, is wholly valueless to the company, except as a menace by which the owner of the land thus burdened may be induced or compelled to make terms for the removal of the incumbrance. To say that when the right of way is abandoned for railway uses, the company may retain it or dispose of it to others for uses of a merely private character, is to affirm a proposition at variance with every well-settled rule of law governing ownership of lands by quasi public corporations, and open the door to the most grave abuses. Suppose, for instance, that, in contemplation of constructing a railroad across the state, a corporation lays out its line, and opens negotiations with the landowners to adjust the right of way. The owners, knowing their inability to raise any effectual objection, make conveyance by deed of a strip one hundred-*411feet wide and hundred of miles in length, stretching out across lands used in all the various ways known to modem life and business. After having thus obtained its title for public uses, the company changes its plans and abandons the enterprise entirely, or concludes to build its road upon an altogether different route. Would this court for a moment tolerate a claim upon such company’s part of right to turn that right of way into an elongated farm, or private park, or game preserve, or devote it to any other purpose foreign to or destructive of the public purpose for which, and for which alone, the authority to take and hold the right of way was given by the statute ? Would the owner of land thus bisected and injured have no remedy for the wrong done him, except such as might or might not be sought by the state in quo warranto 9 If such abandonment of the public use be prolonged for an unreasonable period, is there any good reason why the legislature which granted the power to “take and hold” the land for such uses may not withdraw the authority, and restore the land to the several tracts from which it was taken, just as it has attempted to do in our statute ? If any such reason exists, it has not been suggested. Of the many authorities which uphold the view that a fee-simple title in lands for railroad right of way is thus qualified, I will call attention, to two typical eases — one from England and one from the United States (Norton v. Railroad, L. R. 9 Ch. Div. 623; N. Y. C. & H. R. R. C. v. Aldridge, 135 N. Y. 95 (32 N. E. Rep. 50, 17 L. R. A. 516)—in both of which jurisdictions railroad companies are held to obtain a fee-simple title in a right of way. In the Norton Case the company obtained its right of way by conveyance. For some years it had maintained a fence or hedge several feet within the outer limit of the land covered by its deed, and left the strip outside of the hedge unused. The plaintiff, who was in possesion of the adjacent land, erected a building on his own premises, with windows overlooking the railway; and the company put up a blind or boarding to obstruct the view from said windows —an act which, in that country, would have been lawful in *412an ordinary fee-simple proprietor of land so situated. On suit brought to prevent such obstruction, it was held that, notwithstanding the company held the fee-simple title to its right of way, it held such title “in that qualified manner in which land taken for particular purposes is taken,” and that “they [the company] had only a right to the fee simple of the land for the purpose for which they acquired it, namely, the construction and perpetual working of the railway,” and therefore could not rightfully obstruct the plaintiff’s windows, except as such effect might incidentally follow from the use of the way for legitimate railroad purposes. Concerning the disputed strip outside of the hedge, but within the limits of the grant to the company, it was also held, that the company had manifested a purpose to abandon that part of the way outside of the hedge, and that, such abandonment having continued for a period of ten years or more, the land vested in the adjoining owner. In the Aldridge Casé, the owner of land bordering on the Hudson river conveyed to the railroad company a right of way in fee along the river shore. Subsequently a dispute arose as to whether the railroad company or the- landowner was entitled to a patent to certain lands in the river bed — a. right which, under a statute of that state, could not be hold by or reserved in any person except the riparian proprietor. It was therefore essential for the court to say whether the company, as fee owner of the right of way which seperated the land of Aldridge from the river, was a riparian owner, or whether the riparian rights' and privileges remained in Aldridge, as the owner of the land from which the right of way had been taken. In sustaining tlie claim of the landowner, the court, speaking by Peckkam, J. (afterwards transferred to the Supreme Court of the United States), declares that although the railroad company received title to its right of way “in fee simple by voluntary grant of the former owners, and by the provisions of the statute, it holds such real estate and can use it only for the purposes expressed in its -charter — that of the maintenance, construction, and accomodation of the railroad. For this pur*413pose only can the land be used, and, although the title granted to the company is a fee, we think the grantor did not thereby cease to he the owner of the upland, within the meaning of the statute. The conveyance to the railroad of the strip in question is, in its effects, entirely unlike the conveyance to a private individual in fee simple. In the latter case it may well he that the grantor of even so narrow a strip would lose his character of riparian owner, and the grantee would acquire it. But when we consider the purpose .of the conveyance to the railroad, and the limitations to its use which the statute itself placed upon the company, it becomes entirely plain that the grantor ought not to lose his character of riparian owner where he retains the property immediately adjoining that which he conveys.” The failure of the majority opinion to recognize the distinction thus clearly stated by Judge Peckbam, and the assumption that a conveyance of a right of way in fee to a railroad company vests the grantee with the same unlimited right in the permises which a similar conveyance for private uses would vest in an individual purchaser, lead, in my judgment, to a radically wrong conclusion.

The judgment of the district court should be affirmed.

McClain, J., concurs in tbe foregoing dissent.