
    Samuel Wagner v. The Cleveland and Toledo Railroad Company.
    "t. Stone piers built by a railroad company as part of its railroad, on lands over which it has acquired the right of way for its road, do not, though firmly imbedded in the earth, become the property of the owner of the lands as part of the realty. And, on the purpose of completing the railroad being abandoned, the company may remove such structures as personal property.
    2. In case of such abandonment, the fact that the land-owner has been allowed to take possession of the land embraced in the right of way, and hold it for a term of years less than is required to extinguish the easement, does not, of itself, imply a relinquishment on the part of the railroad company of its right to enter and remove the piers.
    Error to tbe Court of Common Pleas of Lucas county; reserved in the District Court.
    On the 19th of November, 1852, the Junction Eailroad Company was a corporation organized under the laws of this state, with power to construct a railroad, the line of which would pass over that part of section 1, T. 1, U. S. R., which lies between the side-cut of the Wabash and Erie canal and the Maumee river. On that day, that company contracted with Galen Norton and Lyman Parcher to build a bridge across the Maumee river, and the valley thereof, and also a part of its line of railroad. The work thus contracted for included that which was required to be done in the construction of the road over the lands above described. At that time the lands were owned by Samuel M. Young, who, on the 21st of May, 1853, entered into a contract, in writing, for the sale of the same to said Norton & Parcher, and delivered the possession to them under the contract. About the time of making the purchase, Norton & Parcher entered into a verbal agreement with the railroad company, by which, in consideration of five hundred dollars to be paid, they agreed to grant to the company the right of using a strip of land one hundred feet in width, on and over said lands, for its railroad, and the privilege of entering on said lands to survey, construct, and repair said road. Immediately after making tins verbal agreement, Norton & Parcher commenced work under their contract, and the construction of piers and abutments in question.
    On the 1st of September, 1858, after the work had been commenced, and the piers partially constructed, the Junction Railroad Company became consolidated with the Toledo, Norwalk and Cleveland Railroad Company, thus creating the Cleveland and Toledo Railroad Company. The work was continued by Norton & Parcher, under their contract, after this act of consolidation, and all the piers and abutments necessary for the support of the bridge over the lands aforesaid completed. The bridge itself was completed across the river, but not across the land in the valley. No work was done after about the 1st of January, 1855.
    On the 27th of May, 3854, after the consolidation of the two companies, Norton, who had previously acquired the interest of Parcher in said lands, in order to give full effect to the before-mentioned verbal agreement made with the Junction Railroad Company for the use of the lands, executed and delivered to the Cleveland and Toledo Railroad Company an instrument in writing, of which the following is a copy :
    
      “Know all men by these presents: That I, Galen Norton, of Lucas county, Ohio, hereby grant to the Junction Railroad Company, and its assigns, the right of using a strip of land, not exceeding one hundred feet wide, on and over the Jot described below,for a railroad; and the privilege of entering on said lot, below described, to survey, construct, and repair and use said railroad ; and also release to said company all damages which have, or may accrue herein. The lot intended is the following: The ground east of the Maumee side-cut to my east line in the Maumee river, across the ground known as the ‘ Wilkison Pishing Ground,’ for the sum of five hundred dollars, payable six months after date, reserving the use of said fishery for fishing, and said land for cultivation, except when needed by said company for building or repairing said road or bridge. Said company are not to build any feuce along this lino, as none is needed; and ’tis agreed that no fishing shanty, or any other building or fixture, shall be erected or used within said one hundred feet by me or assigns.
    “In witness of which I set my name and seal,'this 27th day of May, 1854.
    “ G. Norton, [l. s.]
    “ In presence of G. W. Reynolds.”
    In this instrument the name of the Junction Railroad Company was used by mistake for that of the Cleveland and Toledo Railroad Company; but the intention of the parties was to grant to the last-named company the right to use the land for the purposes and in the manner therein stated.
    On the 25th of July, 1857, Norton, in execution of the. contract between Norton & Parcher and Samuel Wagner and one Shaw, conveyed said lands to Wagner, “ subject to a lease of right of way made by said Galen Norton to the Cleveland and Toledo Railroad Company for their railroad, and also reserving to said Norton the privilege to work the quarry on said land to get sufficient stone to finish the masonry of said railroad company’s bridges between Maumee and Perrysburg.”
    The superstructure of the bridge remained standing until the summer of 1866, when a part of it was taken down by the company, and the remainder was taken down in the summer of 1867. Cue of the piers standing on the land of Wagner was sold in the year 1865, and the stone taken down and removed. None of the permanent structure of the bridge or piers was sold prior to 1865, bat the loose stone which had been prepared for the completion of some of the piers for the support of the bridge across the land in the valley of the river, but which had not been put into the piers, were sold before that time.
    On the 2d of September, 1867, the Cleveland and Toledo Railroad Company, having previously begun suit, filed an amended petition, in Lucas Common Pleas, against Wagner, setting out the foregoing facts, and also averring as follows:
    
      “ That said piers and abutments have remained upon said lands up to the present time, but that said plaintiff, being desirous of abandoning said railroad, on said premises, was proceeding to remove said stone from said premises, intending, upon the removal, to surrender the possession and control of said premises to said defendant, but that said defendant refused to permit said plaintiff to remove said stone in said piers and abutments, and by force drove the agents and servants of said plaintiff from the premises, who were then engaged in such removal.
    “ That thereupon, said plaintiff demanded said stone in said piers and abutments from said defendant, but that he refused to deliver them to the plaintiff, and has converted the same to his own use, to the damage of the plaintiff four thousand eight hundred dollars.”
    Wagner answered, besides other matter, as follows:
    “ That, prior to the year 1855, there were constructed on said lands eleven piers and abutments of stone masonry, which have remained upon said lands unto the present time, and that the same were intended for the support of a bridge upon which a railroad was to cross said lands, and as part and parcel of said railroad.
    “ That the plaintiff' was proceeding to remove said stone in said piers and abutments from said premises, and the defendant refused to permit the same to be done, and drove the agents and servants of the plaintiff engaged in such removal from said premises, and that thereupon the plaintiff demanded said stone in said piers and abutments from the defendant, and the defendant refused to deliver the same to the plaintiff.
    “And as to all other allegations in said amended petition, the defendant denies each and every one.
    “And the defendant further says, that said piers and abutments are built upon the rock underlying the soil on said premises, the soil having been excavated for that purpose, so that the same are attached to the freehold and have become a part thereof.
    “ That said railroad was never constructed over said premises, but that, in the spring of the year 1855, the building of said railroad was abandoned by the party constructing the same, who left said stone in said piers and abutments on said premises, and abandoned the same.
    “ That about April, 1856, the defendant took possession of said premises and the stone in said piers and abutments, and from that time until the present has had open, notorious, continued, and adverse possession of the same.
    “II. The defendant further says, as a second defense, that the cause of action in the amended petition did not accrue within ten years before this action was commenced.”
    The reply stated that said piers are not, and never have been, in law, a part of the freehold.
    That said piers and abutments were never abandoned by the party constructing the same, and neither was the construction of said railroad abandoned until about the time of the attempt of the plaintiff to remove said piers.
    That said defendant did not take possession of said stone, or in any manner exercise any acts of ownership over the same, until the time when the plaintiff attempted to remove the same, as is in said petition set forth.
    That the cause of action in the petition mentioned did accrue to the plaintiff within ten years before said action was commenced.
    At the trial, at May term, 1868, the plaintiff offered evidence which proved all the facts stated in said petition, except the allegation in regal’d to its intention of abandoning the railroad on Wagner’s premises, and also further testimony in support of that averment; and the defendant put in evidence, in opposition thereto,' and to sustain his claim, that a removal of the piers and abutments would injure the freehold.
    The evidence having been closed, Wagner asked the court to charge the jury as follows :
    1. That if the grant or license to the plaintiff to enter upon the land of the defendant or his grantors was for the purpose of constructing, maintaining, and operating a railroad, and the plaintiff', before completing such a railroad, abandoned the design of constructing it altogether, and left the possession of the land embraced in the grant or license, then that the land reverts to the owner of the reversion, and that this carries with it all fixtures so attached to the soil that they can not be removed without injury to the soil.
    2. That the test, whether such structures as the stone piers in controversy in this case are fixtures such as are referred to in the first request, is whether they can be removed without material displacement of the earth where they stood.
    3. That upon abandonment of the right of way, such as is referred to in the first request, if the owner of the land and of the reversion-took possession of the same, together with the fixtures, and so held them at the time of the commencement of this suit, that this action will not lie.
    4. That if the plaintiff had so abandoned the right of way that it could not have maintained an action for the possession of the land embraced in the said grant or license, then that this being a personal action for detaining the fixtures, can not be maintained.
    5. That the written contract offered in evidence by the plaintiff in this case did not give the plaintiff any legal estate in the land, but was a contract in equity-fora grant; and if the plaintiff before obtaining the legal estate, abandoned its design of constructing its railroad on 'the land embraced therein, and the defendant obtained possession and held it adversely to the plaintiff', then that plaintiff can not maintain this action for damages for the detention of fixtures attached to said land.
    6. That if the plaintiff’s right of action accrued more than four years before the commencement of this action, then that the same is barred, and the defendant is entitled to a verdict.
    7. That if the defendant was openly, continuously, and notoriously holding adverse possession of the land on which these fixtures stood for more than four years before the commencement of this action, then that the plaintiff’s right of action, if any such it had, accrued at the commencement of such adverse possession.
    8, That upon such abandonment as referred to in the first request, the plaintiff would have a right to remove fixtures erected for the purpose of carrying out the object of the grant only while it retained the possession of the land.
    9. That even while the plaintiff had possession of the land, the plaintiff would not have the right to remove such fixtures, if thereby a material injury to the land would have been the consequeuce of such removal.
    Whereupon the court charged the jury as follows:
    The Junction Railroad Company was a corporation authorized by law to construct a railroad over the route upon which the superstructure now claimed by the defendant was erected. The contract introduced in evidence between Norton, the grantor of the defendant, and the Junction Railroad Company, grants unto said company and its assigns tire right of using the land described in said contract for a railroad and the privilege of entering upon said land to survey, construct, repair, and use said railroad, and also releases all damages which have or may accrue by so doing.
    The plaintiffs in this action claim to have succeeded to all the property, rights, and privileges conferred upon and exercised by the Junction Company.
    Ruder the powers granted by their charter, and in and by virtue of the contract above mentioned, the plaintiff claims that the Junction Company entered into possession of the lands described in said contract, for the purpose of constructing a railroad; and expended large sums of money in erectiug stone piers and abutments for a bridge across said premises on the line of such contemplated railroad; and that the present plaintiff', as the legal successor of said Junction Railroad, is now justly entitled to the materials so- employed and used by the Junction Company in constructing said piers.
    This claim is resisted by the defendant, as we understand, upon two grounds:
    
      1. That these materials have been so'placed and disposed of by said company as to become fixtures, in consequence of their being placed upon and attached to the freehold.
    2. That the action is barred by the statute of limitations, which provides that actions brought for the recovery of personal property shall be commenced within four years from the time the cause of action accrues.
    In regard to the first defense, we charge the jury that if they find from the evidence that these piers which are now claimed by the defendant were constructed (by the plaintiffs or by the Junction Railroad Company, and that the plaintiffs have succeeded to all and singular their rights in the premises) for the purpose of a railroad, and as a part of the construction of said road, and- under the contract entered into between said Junction Railroad and Norton, the grantor of the defendant, and by eouscnt of said Norton, that said piers would not in law become so far affixed to the freehold as to prevent their removal by the plaintiffs upon an abandonment of the project of building said road ; but upon such abandonment, they would have the right to remove said piers or the materials furnished for them and used in their construction, as personal property.
    Considerable of testimony has been introduced during the progress of the trial with reference to the injuries that would be produced by a removal of the piers now claimed by the plaintiff. Upon this question we instruct the jury, that unless the injuries claimed as being the result or consequence of such removal would be permanent, and in some degree irreparable to the freehold to which they may be attached, they could not be set up as a bar to the right of removal. Mere temporary injuries would not destroy the right of removal. If those piers were simply placed upon the soil, or the ground excavated so as to place them on rock foundation, and by their removal no other injury would be sustained to the land on which they were placed than simply making au excavation that could readily be filled up, it would not operate to destroy the plaintiffs’ right of removal. If, however, the piers were so located or constructed that they could not he removed without producing permanent and irreparable injuries to the freehold, then the plaintiff would have the right only to remove such portions of them as could be done without producing that result.
    To the second proposition we charge the jury that the simple abandonment of the project to construct a railroad along the line so contemplated, would not, of itself, be an abandonment of the right of the plaintiffs to remove and dispose of these piers, nor would that right be barred by statute of limitations until there had been four years of adverse possession by the defendant. The simple possession of the land upon which piers were placed would not be sufficient to bar the plaintiffs’ claim. It must be such an adverse possession of these piers as, in law, would amouut to a conversion. The possession of the defendant, in reference to these piers must have been accompanied by such declarations or such acts as would give the plaintiff’ unmistakably to understand that he claimed them as his, and until such claim was unequivocal,positive, and distinct, set up and asserted by him, the statute of limitations would not commence to run. These materials should be viewed in the same way that any article of personal property standing upon the land of another would be. The land- may be occupied by the owner for years without conferring upou him any right to the chattel standing upon it. When the possession of the chattel is interfered with, something further must be done to bar the owner’s claim than the mere possession of the land. Something must be said or done having special reference to this chattel. If the jury find that the defendant did take possession of the stone composing these piers, and claiming the right to them, and gave the owners to understand by his declarations or acts that he did so claim and hold them, the claim of the plaintiff' to them would be barred in four years from the date of such adverse claim and possession ; on the other hand, if the jury find, from the evidence, that the defendant did not take possession of, or exercise any right or control over the stone, except such as arose from a mere possession of the land upon which they were placed, until within the period of four years prior to the time this suit was commenced, the claim of the plaintiffs would not be barred by the statute of limitations. Thereupon, the court read to the jury the first request for a charge made by the defendant, and having finished the reading, said to the jury that the question of abandonment must be found from the testimony. If the plaintiffs simply abandoned the project of constructing their line of road, but did not abandon or intend to abandon the piers or the materials used in their construction, then such an abandonment would not of itself prevent their claiming such materials, although the piers in which said materials were placed rested upon the ground, and were constructed and placed there by the plaintiffs for the support of their bridge and line of road. The plaintiffs may abandon the project of building a road, and relinquish the right to use the land for that purpose, without abandoning or relinquishing their right to the materials furnished by them, and used in the construction of the piers and other works connected with the road.
    To the second request of defendant, the court, after reading the same to the jury, said that this would ordinarily render them fixtures, but if the piers were placed there by the plaintiffs in the construction of their line of road, and as a part of the superstructure 'of the road, then the simple fact that they were connected with the soil for the purpose of securing a proper foundation would not render them fixtures, so as to deprive the plaintiff of his right to remove them on that account, when they choose to do so.
    To the third request, the court, after reading the same to the jury, said, that if the abandonment by the plaintiff embraces, not only the line of road, but also the piers in question, and the materials employed in their construction, and the owner of the reversion after such abandonment took possession of both the land and the piers, and the materials thus abandoned, then this action will not lie. But merely leaving the piers or materials on the land does not of itself constitute an abandonment such as to prevent the plaintiffs from claiming them. The jury must, in such case, be satisfied from the testimony, that there was, on the part of the plaintiffs, an actual intentional abandonment of these materials, such as would be equivalent to a relinquishment of their right to them.
    The fourth request of the defendant the court refused to give.
    To the fifth request,'the court, after reading the same to the jury, said, if the piers wore built by the plaintiffs in pursuance of the right or license granted them by the written instrument referred to, and before obtaining the legal title to the land, the project of building the line of road was abandoned, and the defendant obtained possession of the land and held it adversely, still the claim on behalf of the plaintiff for their piers and materials would not bo destroyed, unless there was an actual and intentional abandonment of the piers and materials comprising them.
    To the sixth request, the court, after reading the same to the jury, said, that if the subject of the action was not abandoned by the plaintiff, and thus relinquished with the land to the revei’sioner, then the right of action would not accrue against tbe defendant until a refusal on his part to surrender them, and would consequently not be barred until the expiration of four years after such refusal.
    To the seventh request, the court, after reading the same to the jury, said, we have already instructed the jury that the defendant claiming the property by adverse possession, must not only include the land, but also the piers and materials placed upon the land by the plaintiffs, and that they were claiming and holding possession of the land on which the piers were placed without any claim to them, although standing upon the land, would not prevent the plaintiffs’ recovery in this action.
    To the eighth request, the court, after reading the same to the jury, said, the proposition was not true as to the piers claimed in this case.
    To the ninth request, the court said, after reading the same to the jury, that the point then presented had been already covered by the charge as given.
    To the refusal of the court to charge as requested by the defendant, and to the charge so given to the jury by the court, the defendant then and there excepted.
    A. verdict was rendered in favor of the railroad company for $5,058.50.
    A motion by Wagner to set aside the verdict, and grant a new trial, was overruled, and judgment rendered on the verdict. He excepted to the overruling of his motion, and tendered a bill of exceptions, which was allowed, and made part of the record. This bill presents all the evidence offerred upon the trial in regal’d to the issues as to abandonment and the effect of a removal.of the piers and abutments upon the freehold, and states that the averments in the petition of September 2, 1867, in regard to all other matters were proved.
    
    Wagner thereupon filed a petition in error, in Lucas District Court, to reverse said judgment, and the cause was there reserved for decision in the Supreme Court.
    
      Kent, Newton $ Pugsley, with whom was B. C. Lemmon, for plaintiff in error:
    1. The railroad company having abandoned the building of the road, and permitted Wagner to take and hold possession of the laud for more than eleven years, could not reenter to remove the piers.
    2. The contract, if effective at law, granted only the right of using a strip of land for a railroad; the privilege of entering on said lot to survey, construct, repair, and use said railroad, reserving the use of said land for cultivation, except when needed by said company for building or repairing said road or bridge. The company having no right to re-enter, or to impose upon Wagner the labor of removing and delivering the piers to them, his refusal to so deliver was not a conversion of -them.
    But the contract was neither attested nor acknowledged ; hence the company held, only an equitable right to compel a conveyance in the terms, and for the uses named in the instrument; but this right was lost by their abandonment.
    3. The piers and abutments were fixtures. Hill on Fixtures, 13; Ferrard on Fixtures, 8, 9; Teaff v. Hewitt, 1 Ohio St. 527, 529, 530; Hotter v. Cromwell, 40 N. Y. 287; Moore v. Cunningham, 23 Ill. 328; Palmer v. Forbes, 23 Ill. 312; Dooley v. Crist, 25 Ill. 551; King v. Johnson, 7 Gray, 239; Smith v. Moore, 26 Ill. 392; Heneway v. Cutler, 51 Maine, 407; Reese v. Jared, 15 Ind. 142; Wilde v. Yates, 32 Eng. L. & Eq. 422.
    If a right to remove existed, it should have been exercised before the abandonment. Beers v. St. John, 16 Conn. 522; Overton v. Williston, 31 Penn. St. 155; Davis v. Buffum, 15 Maine, 160; Hafiech v. Stober, 11 Ohio St. 482; Laughran v. Ross, 45 N. Y. 792; Whelpley v. Dewey, 8 Cal. 36; Sorer v. Hunter, 3 B. & C. 368.
    And, under the circumstances of this case, trover will not lie. Overton v. Williston, 31 Penn. St. 155; Davis v. Buffum, 51 Maine, 160; Colegrave v. Dios Santos, 2 B. & C. 76.
    4. The case of Corwin v. Cowan et al., 12 Ohio St. 629, is not parallel with this, because it did not appear that the vendees of the state in that case had abandoned possession of the land, and, after eleven .years, brought replevin for the material of the locks. Moreover, that ease seems not to have been argued, and the opinion cites no authority, and we have found no earlier case to sustain it. The facts in the case of the Northern Central Railroad Company v. The Canton Company, decided by the Maryland Court of Appeals, differ from those at bar, and we refer to the criticism of Judge Redfield, 8 Amer. Law Register, N. S. 544.
    
      M. R. R. Waite, for defendant in error:
    1. The charge as to the first defense is in exact accordance with Corwin v. Cowan et al., 12 Ohio St. 629.
    2. The stone in the piers and abutments stand in no different legal position from the bridge, or the rails and ties of the track, which they were intended to support. The practical question presented is, therefore, whether a railroad company, which has built its road on lands of another, with his consent, can, upon abandonment of its use as a railroad, remove the materials out of which it has been constructed ; or, whether they pass to, and become the property of, the •owner of the land.
    3. The Supreme Court of Maryland, in Northern Central R. W. Co. v. Canton Co., 30 Md. 347, has, since Corwin v. Cowan, decided the same question in the same way.
    4. These decisions are sustained by well-established principles. The railroad owned an easement, and its ownership was separate from that of the fee.
    5. In order to make the railroad a fixture, it must appear to have been the intention of the company to make it a permanent annexation to the freehold. Teaff v. Hewitt, 1 Ohio St. 530; Meigs’ Appeal, 62 Penn. St. 28; North. Cent. R. W. Co. v. Canton Co., supra; Hill v. Sewald, 53 Penn. St. 273.
    Here there was no such intent; these structures are not appropriate to the use of the land.
    And that Norton did not intend to convey the railroad to Wagner is shown by the reservation in his deed.
    6. The simple abandonment of the project to construct the railroad was not, of itself, au abandonment of the right of the company to remove the piers. Corwin v. Cowan, supra; N. C. R. W. Co. v. Canton Co., 30 Md. 355.
    7. The jury found that there was no abandonment of the piers, for they were told to find for Wagner if there had been such abandonment. Therefore, under Wilson v. Chalfant, 15 Ohio, 248, the right to enter and remove remained.
    8. The charge as to the claim of adverse possession is fully sustained by Lane v. Kennedy et al, 13 Ohio St. 46, and by the opinion of Ch. J. Marshall, in Kirk v. Smith, 9 Wheat. 288.
   White, C. J.

The determination of this case depends on the answer to be given to two questions:

1. Whether the stone piers built by the railroad c ompany on the premises over which it was authorized to construct its road, were so anuexed to the land as to become the property of the owner of the laud.

2. If there was not such annexation as to vest in the owner of the lands the right of property in the piers,, whether the right of the railroad company to remove the-same was barred by the statute of limitations.

In considering the first question, we do not propose to-enter into a general discussion of the law of fixtures, nor into an examination of the numerous cases illustrating its-application in particular instances.

In order to determine, in a given case, whether a chattel, by annexation, has been incorporated into the realty so as to-become part of it, the purpose for which the annexation was made must be considered, as well as the relation of the-parties concerned to the property, both before and after the-annexation.

An article annexed to lauds may, for some purposes, and as between certain parties, be regarded as part of the realty,, while, as respects other parties and objects, the same thing may be considered as retaining its character as personalty.

In the present case, the question is not as to whether the-piers are to be regarded as realty or personalty between the-railroad company and strangers, but it is as to how they are to be treated in this respect between the company and the-land-owner who gave the eompauy the right to place them on the lands as part of its railroad.

That the mode of annexation alone will not determinetiie character of the property annexed, is apparent from the fact that property may be annexed by the same mode, and yet be personalty in the one case and realty in the other. Trees growing in a nursery are annexed to the soil in the same way as trees growing in an orchard; but, in the former case, they are cultivated for the purposes of trade, and are regarded as personalty, while in the latter, being intended as a permanent accession to the lands, they are regarded as belonging to the realty. The general principle to be kept in view, which underlies all questions of this kind, is the distinction between, the business which is carried on in or upon the premises, and the premises, or locus in quo. The former is personal in its nature, and articles. that are merely accessory to the bnsines-s, and have been put on the premises for this purpose, and not as accessions to the real estate, retain the personal character of the principal to which they appropriately belong and are subservient. But articles which have been annexed to the premises as accessory to it, whatever business may be carried on upon it, and not peculiarly for the benefit of a present business, which may be of a temporary duration, become subservient to the realty, and acquire and retain its legal character. As, however, the combined use of both the real and personal property is necessary for the business, the difficulty, in any given case, consists in determining on which side of the dividing line to assign the particular article in question. This must, in a great degree, be determined by the circumstances of each particular case. Fortman v. Goepper et al., 14 Ohio St. 567.

Such is the general rule, as laid down in the case cited, to guide in determining controversies of this character. The application of it to the facts of the present case affords .a satisfactory solution of the question at issue.

The use of the strip of laud on which the piers were ■built was grauted to the railroad company for the purpose ■of constructing part of a continuous line of railroad which it was authorized to build and operate. The piers were as much a part of the road as the bridges they were designed ■to support, or the rails and ties on the road. The use the road was intended to subserve, and to which alone it was adapted, was the transportation of persons and property. 'The road and all its parts were merely accessory to this ¡business, and were put on the land for this purpose, and not .as accessions to the land over which the road was to pass. The part of the road built on the premises of the plaintiff in error, disconnected from the other parts of the road, ■could not be operated, and would be useless as a railroad. Nor could it serve any useful purpose as an appurtenance to the laud on which it was built.

It is possible that, in some instances, by changing the «character of the structure and diverting it to other purposes than those for which it was designed, it might afford some incidental benefit to the lands; but, generally, the value of the structure would consist in what it would be worth disconnected from the land and as personal property. Such, at least, appears to be the character of the structures now in question.

If the piers were the property of the land-owner, they became his as they were built, the company only retaining the right to use them in operating its road.

We do not understand such to be the effect of the agreement of the parties. The railroad company acquired an easement in the land to construct and use its road thereon. It did not bind itself to the land-owner, either to build or maintain the road; and it could change the character of the structure at pleasure. Nor do we perceive any good reason why, in the act of building, it should lose its right ■of property in the structure when built, or in the materials of which it was composed. The land-owner retained his laud subject to the easement, and the company owned the easement and the structures it was designed to support.

We attach no importance to the fact that the company, at the time of the attempted removal of the stone, had abandoned the idea of completing the road. If the piers ■had not before that time become the property of the landowner, the abandonment of the enterprise would not make them his. The right to abandon the purpose of completing the road, it seems to us, carries with it the right to remove the structures put on the land solely as a part, of the road equally as the right to construct and use the road, carries with it the right to change, remove, and renew the materials of which it is composed.

The following cases, we think, fully sustain our ruling upon this question: Corwin v. Cowan, 12 Ohio St. 629; Northern Central R. W. Co. v. Canton Co., 30 Md. 347.

2. The remaining question is, whether the right of the railroad company to remove the piers was barred by the statute of limitations.

It is not claimed that more than four years had elapsed after the defendant resisted by force the attempt of the-company to remove the piers before the commencement of' the suit. It is this act of the defendant upon which the company relies as constituting the conversion for which the suit- was brought.

The ground, as we understand, upon which it is sought to apply the statute of limitations is that the defendant, below had for about ten years been in possession of the strip-of land over which the company had the right to construct,, and had partly constructed its road, including the piers iu question. That this, in connection with the fact that the-company had abandoned the design of completing the road,, put the statute in operation, both in respect to the right of the company to remove the piers and to resume possession of the land.

But the operation of the statute is in no way affected by the purposes and intention of the company. To the extent-that it operates at all, the statute operates irrespective of’ the acts and designs of the railroad company, and is in no.respect aided by such acts or designs. It is the adverse possession of the defendant which sets the statute in operation ; and “to make such possession adverse, there must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his' acts, that a failure of the owner to prosecute within the-limited time raises a presumption of an extinguishment or a surrender of his claim.”

The period limited that would bar the railroad company of its easement under the statute would be twenty-one-years. True' the instrument evidencing the grant to the company is defective as a conveyance in not being attested and acknowledged in conformity with the statute. But this-can make no difference in the case, for the rights of the-company under it are expressly recognized in the deeds of conveyance to the defendant-, executed by Norton, undei whom both parties claim, and the defendant is therebyestopped from questioning the validity of the gr-ant.

The rights the defendant acquired under the alleged •abandonment are such, as he derived from the company bj its voluntary act, and are independent of the statute of limitations.

The abandonment referred to consists of the surrender by the company of certain of its rights to the acceptance of the defendant. It is not pretended that there was any express agreement between the parties in regard to such ¡surrender. The terms of the surrender are only such as can be implied from the fact that the company had given up or abandoned the design of finishing its road, and had .allowed the defendant to take possession of the land embraced in the right of way, and retain it for the time before .stated.

In regard to the effect of these facts, we agree with the -court below, that they do not imply a relinquishment on the part of the railroad company of its right to enter and remove the piers in question.

"We deem it unnecessary to notice the various charges in •detail. What has been said covers all that is in them that we regard as material.

The assignment of error on the ground that the verdict . is contrary to the evidence has'not been argued; and it is .sufficient to say, on this point, that from an examination of the evidence, we discover no ground to warrant our interfering with the action of the court below.

Judgment affirmed.  