Durfee v. Peoria, Decatur & Evansville Railway Co.

Mr. Justice Craig delivered the opinion of the Court:

The land involved in this proceeding, as appears from the evidence, was condemned, and Durfee, the owner, W'as paid $1350 for the right of way. After acquiring the right of way the company constructed its road upon it, and used it in running its trains to and into Decatur, from 1871 to 1880. In the spring of 1880 the company entered into a contract with the Illinois Central Company, under which it acquired a right, for a period of ten years, to use the tracks of the Central Company. After this contract was made, the company ceased to use the right of way in question, and the rails and railroad ties were removed, and the'right of way was fenced up T\ith ■«other adjoining lands, and defendant Durfee for a number of years paid .taxes on the right of way in connection with the land he owned, and the question presented is, whether these acts constituted an abandonment of the right of way on the part of the railroad company.

It appears from the testimony of Bradbury, the, general manager of the road at the time the contract was made with the Illinois Central company, and also from the evidence of Ewing, who succeeded Bradbury, that the railroad company had no intention of abandoning the right of way. This is •confirmed by the evidence of the chief engineer, who testified that the intention of the company ultimately was to resume the running of trains over the old right of way. Under this evidence we perceive no ground whatever upon which it could be held that the railroad company had lost-its right of way by abandonment. It is conceded in the argument, to constitute an abandonment there must be non-user and an intention to abandon. Here was a non-user for a definite and fixed period •of ten years, with no intention to abandon permanently the right of way, and we are aware of no authority under which it can be held the railroad company lost its right of way under ■such a state of facts. In Barlow v. Chicago, Rock Island and Pacific Railroad Co. 29 Iowa, 276 , it was held that the railroad ■company did not lose its right of way from a failure to occupy the land acquired for that purpose, for a period of thirteen years; and in Columbus v. Cincinnati Southern Railroad Co. 37 Ind. 294 , where the railroad company had entered into a contract with another company for the use of a part of its track, it was held that the taking up of the rails from a part •of the track and removing them to a new track did not constitute an abandonment.

No importance is to be attached to the fact that appellant •paid taxes on the right of way. His payment was under no diitle or color of title, and, however long continued, could confer no right. Nor can the appellant rely upon nine or ten years’ possession as conferring any rights to him in the right of way. Had he entered claiming the land as his own, and occupied adversely for a period of twenty years, such an adverse possession might have been relied upon as a bar to any title held by the railroad company. Or had he entered under-color of title, and paid taxes for the period provided by the-statute to bar a recovery by the owner, a different question would arise. But the entry here was under neither title nor color of title, and hence our Statute of Limitations could not. be invoked as a defense.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.