
    THE PENNSYLVANIA RAILROAD COMPANY v. REBECCA A. HULSE.
    Where the plaintiff’s use of a way was, at its inception, permissive, its mere continuance for the statutory period will not ripen into a hostile right.
    On rule to show cause.
    Argued at February Term, 1896, before Beasley, Chief Justice, and Justices Dixon, Mague and Garrison.
    
      For the defendant, Alan H. Strong.
    
    For the plaintiff, Allen H. Gangewer.
    
   The opinion of the court was delivered by

Garrison, J.

This is an action for damages for obstructing a private way. The easement to. which claim is made is over the right of way of the old Camden and Amboy railroad, not merely crossing it but running parallel to and upon each side of the tracks now occupied by the Pennsylvania Eailroad Company. The plaintiff put her case upon a grant from the railroad and was permitted to prove an oral license or consent given to her predecessor in title at the time the railroad was built, in 1831, and enjoyed without change ever since until the defendant’s obstruction in 1891. Notwithstanding the permissive origin and continuance of the plaintiff’s use of the way, the case went to the jury as one where a hostile user had ripened into an adverse right. For this, if for no other reason, the cause must be retried.

The case appears also to touch a question of general importance which, however, is not now here in such form that it can be dealt with. It is this: The right of way of a railroad company is a public highway in the possession of a corporation to enable it to perform a public duty. Whether such an agent may grant a dominant easement in such lands is the question to which reference has been made. The case now before us is disposed of, however, upon the ground before mentioned, and upon the further ground that the amount of damages given by the jury, to wit, $5,000, indicates an entire misapprehension of the nature of the issue before them. The way was obstructed in Novembei’, 1891; suit was begun in March, 1892. For blocking the way to this farm during these four winter months a sum of money was awarded about equal to the entire value of the farm, as shown by the testimony.

There must be a retrial of the case.  