
    ALFRED JOHANSON AND THERESIA JOHANSON, DEFENDANTS IN ERROR, v. ATLANTIC CITY RAILROAD COMPANY, PLAINTIFF IN ERROR.
    Submitted March 26, 1906
    Decided November 19, 1906.
    1. The general rule is that where the possession of land is separated from the title, the law will not presume that the possession is adverse, but every presumption is in favor of possession in subordination to the title of the true owner.
    2. In reviewing a judgment of the Supreme Court entered upon a special verdict, the facts stated in the verdict can alone be considered. The reviewing court may not examine the evidence to ascertain whether those facts were rightfully found.
    S. Where a railway company builds its road upon the land of another without other authority than the parol license of the owner, the latter may ordinarily revoke such parol license at any time, and bring suit to recover possession of the premises.
    On error to the Supreme Court.
    For the plaintiff in error, J. Willard Morgan and Charles V. D. Jolino.
    
    For the defendants in error, Francis D. Weaver.
    
   The opinion of the court was delivered by

Hendrickson, J.

This writ brings up for review a judgment of the Supreme Court entered upon a special verdict returned from the Camden Circuit. The action was ejectment brought by the plaintiffs to recover the possession of a strip of ground on the northerly side of Salem street, between Burlington street and Broadway, in Gloucester City, N. J. The land of the plaintiffs abuts on the north side of Salem street, and their right to the fee extends to the centre line of the street. ' The special verdict shows that the defendant company in the year 1875 located its single track, narrow-gauge steam railway through the centre of Salem street, in front of plaintiffs’ land and upon and over a portion of it described in the declaration; that the defendant in the year 1885 changed its track so located to that of a broad-gauge steam railway, and that from and after the year 1875 has continued to operate its trains daily over said tracks, up to the time of the beginning of this suit in 1904. The defendant entered a plea of not guilty. The special verdict was silent as to the character of the possession of the defendant during the period of its occupation, and the court held that the presumption was, in that condition of the evidence, that the defendant’s possession was permissive, not adverse, and accordingly rendered judgment for the plaintiffs.

We concur in the view thus reached by the court below. The general rule is that where the possession pf land is separated from the title, the law will not presume that the possession is adverse, but every presumption is in favor of possession in subordination to the title of the true owner. 1 Am. Eng. & Encycl. L. (2d ed.) 889. I do not understand' that counsel of defendant undertake to question the legal accuracy of the conclusion of the court below in giving effect to this presumption, but they seek to avoid the affirmance of the judgment by contending that we should look at.the evidence taken at the trial to discover certain facts alleged to have been proven, but by inadvertence omitted from the special verdict, and to amend the special verdict, if necessary, in accordance therewith. But. in reviewing a judgment of the Supreme Court entered upon a special verdict, the facts stated in the verdict can alone be considered. The reviewing court may not examine the evidence to ascertain whether those facts were rightfully found. This is in accord with the general rule existing elsewhere. 29 Am. & Eng. Encycl. L. (2d ed.) 1029, 1031. It may be observed in passing that if the rule were otherwise, the evidence of consent to which we are asked to look could not have been considered by the court, for the reason that'there is. no legal proof of such consent before us. The defendant’s witness, who was the attorney for the Gloucester Land Company, from which the plaintiff derives its. title, at the time the defendant located its road, was asked if he knew whether a consent was given to the defendant by the land company to occupy their ground. He answered, “It was.” He was then asked what permission was given in a deed executed at the time, or in a minute made at the time, and his answer was that he was unable to find any deed, and as to the minute, objection being made, he was not permitted to speak unless the absence of the minute-book was first accounted for, and the defendant rested without offering further evidence as to the minutes. In this situation the evidence of the supposed consent of the land company had no legal efficacy whatever.

The defendant has assigned for error that the court below did not decide that the defendant, being a railroad company, having the power of eminent domain, and in possession of the land when the plaintiffs took title, the latter took title subject to the burden of the defendant’s railroad, and that an action of ejectment will not lie. And this has been urged on behalf of the defendant as ground for reversal, and a large number of cases from other jurisdictions have been cited as purporting to support the doctrine here contended for. But the law has been settled to the contrary of this contention by this court in the case of Hetfield v. Central Railroad of New Jersey, 5 Dutcher 571. This case was no doubt well considered, resulting as it did in reversing the majority decision of the Supreme Court in the same case. Id. 206. It was held by this court in that case, Mr. Justice Elmer delivering the opinion, that an owner of land may revoke a parol license to build a railroad on his land, and may bring trespass quare clausum fregit. Hpon the same principle an action of ejectment may be brought. The latter action was held by this court to be an appropriate one to recover the fee of a public street taken by a steam railway company subject to the public easement. Bork v. United New Jersey Railroad and Canal Co., 41 Vroom 268. The case of Hetfield v. Central Railroad of New Jersey, supra, has been frequently cited in this-court with approval, and since the special verdict shows no-adverse possession and no' pretence' of license other than a parol license, we must be pardoned for failing to discuss the cases cited from other jurisdictions upon a question so- long at rest in this state. The result is that the judgment of the Supreme Court must be affirmed.

For affirmance — The Chancellor, Hendrickson, Swayze, Reed, Bogert, Vredenburgi-i, Yroom, Green, Dill. 9.

For reversal — Gray. 1.  