
    SMITH v. OREGON SHORT LINE R. CO
    No. 1677.
    Decided March 7, 1906
    (84 Pac. 108).
    1. Estoppel — Ejectment.—The owner of land, which a railroad company takes and incloses within its right of way is not estopped to maintain ejectment therefor by merely making no objection for three years; it not appearing that he had knowledge thereof, or that valuable or permanent improvements were made thereon, or that the company's entry was induced, or its occupancy sanctioned or acquiesced in by anything he said or did.
    2. Same — Ejectment by Gbantee. — The grantee of land is not estop-ped to maintain ejectment therefor, except for something done or said by him after the conveyance; the grantor not being estopped at the time of the eonvevance.
    Appeal from Second District Court, Weber County; H. H. Bolapp, Judge.
    Action by Nicholas Smith against the Oregon Short Line Eailroad Company. Judgment for plaintiff. Defendant appeals.
    Appirmed.
    
      P. L. Williams for appellant.
    
      M. D. Lessenger and A. E. Pratt for respondent.
    
      APPELLANT’S POINTS.
    We insist that the owner of the land at the time, and his grantee, the plaintiff, are by law estopped to recover the said lands. Upon this point we cite the court to the following cases: Hanlon v. TJ. P. By. Go. [Neb.], 58 N. W. 590; Campbell v. Indiana, etc. Bd. Go. [Ind], 30 A. & E. Ed., Cases, 304; Pryzbylowicz v. Missouri Biver Bd. Go., 17 Fed. Eep. 492; Waterworks Go. v. Kansas Oity, 65 Fed. 691; Texas & Pacific By. Go-, v. Scott, 77 Fed. 726; Hendrix v. Southern By. Go. [Ala], 23 A. & E. Ed. Cases, New Series 272; Chicago- B. & Q. B. B. Go-, v. Knglehart [Neb.], 15 A. & E. Ed. Cases, New Series 404; Louisville & Nashville Bd. Go. v. Smith, 128 Fed. 1.
    Occupancy and use of a strip of land by a railroad company, of roadbed, right of way and track and for the running of its trains, is sufficient notice of its equity to bind a purchaser from the original licensor. (3 Elliott on Eailroads, sec. 949 and cases cited. Marble v. Whitney, 28 N. Y. 297; Bailroad v. B. & M. Bd. Go., 4 Fed. 298.; Boberts v. Nor. Pac. Bd. Go. 158 TJ. S. I.
    In this case see -especially the opinion of the court at pages 11 and 12. Milwaukee & Nor. B. Go. v. Strange, 63 Wis. 178; Taylor v. Ghicago- M. & St. P. By. Go., 63 Wis. 327; Maple Orchard Grove and Vineyard Go-, v. Marshall, 27 IJtah 215.)
   STEAITP, J.

1. This is an action in ejectment brought by respondent against the appellant. The findings show: That the respondent was the owner of a certain tract of land situate in Weber county. In 1874 the Utah Northern Eailroad Company, a common carrier, entered upon the tract without objection or protest from the owner thereof, but without first obtaining his permission, and constructed its railroad thereon, and ever since, it and its successors- operated the railroad without objection from any one. In 1897 the appellant acquired all the right, title, and interest of the Utah Northern Railroad Company in and to its property, including all its rights in and to its roadbed, and it ever since continued to use and operate tbe said railroad over and across the said land as a part of its railroad system, without objection. . In 1890 II. E. Gibson, then the owner of the tract, erected fences, one on each side of the railroad track, for the purpose of keeping his stock from straying thereon. The fences were so maintained from the time of their, construction until April, 1900, when the appellant broadened and raised its roadbed and ballasted its track, at which time it removed the fences, no objection being made thereto, nor permission being given so to do by the owner of the land or any one claiming to be such owner, and, at the same time, appellant, without the permisr sion of the owner of the land, erected new fences, one on each side of the track, inclosing an additional strip of land four feet wide on one side and eight feet wide on the other, and ever since so maintained the fences and continuously and exclusively used the strip so inclosed for the purpose of its road without objection or protest until in March, 1903, when the land was conveyed by Gibson to the respondent, who thereupon demanded from appellant possession of the entire tract, and notified it to vacate the same. Judgment was given in favor of respondent for the restitution of the additional strips so taken and inclosed by the appellant in 1900, together with $15.00 damages for their unlawful detention from March, 1903, the time when the respondent became the owner of the land, to the time of trial. Judgment was given in favor of appellant for the remainder of the tract, and for the land as originally taken and as occupied at the time of, and prior to the fencing in of the additional strips. •

2. The findings are not assailed. No error is assigned with respect to them. The assigned errors relate only to the conclusions of law, and these are all that can be reviewed by us. (Crooks v. Harmon, 29 Utah 304, 81 Pac. 95.) Upon the findings as made, appellant contends that it was entitled to the possession of not only the ground awarded it, but also to the additional strips fenced in by it in 1900; the possession of which was awarded to the respondent. Upon the findings as made tbe contention cannot prevail. Cases are cited by appellant to tbe effect, and it is urged by it tbat, wben a railroad company bas entered upon land witb tbe consent or license of tbe owner, upon tbe faitb of wbicb permanent and valuable improvements have been made, or wben tbe owner of tbe land bas knowledge of tbe fact tbat tbe railroad company bas entered bis land and is proceeding to construct its road tbereon, and remains inactive and permits it. to expend large sums of money for sucb purpose and to make permanent and valuable improvements without interfering or forbidding tbe company from so doing, sucb owner is estopped from evicting tbe company by an action of ejectment; and wben be, thereafter conveys tbe land, bis grantee is likewise es-topped from maintaining sucb an action. In recognition of these principles the trial court awarded tbe appellant tbat portion of tbe tract decreed to it. As to this portion of the tract tbe findings show tbat it was entered upon thirty years ago, permanent and valuable improvements were made tbere-on, and it was, during all tbat time, continuously and exclusively occupied by tbe appellant and its predecessors for railroad purposes without objection or interruption. From these facts, a license to occupy may well be implied, and, at tbe time of tbe conveyance, respondent’s grantor would be es-topped from ejecting tbe appellant.

But these principles of law do not apply witb equal force to tbe additional strips taken by tbe appellant in 1900. Tbe finding of tbe court is tbat tbe fences erected by Gribson in 1890 and maintained for ten years, substantially fencing in appellant’s right of way, were removed by appellant without permission being given by tbe owner of tbe land so to do, and without permission from tbe owner ik erected new fences inclosing tbe additional strips. While it is found tbat these things were done without objection, no finding is made tbat they were done witb tbe knowledge of tbe owner, nor tbat be acquiesced therein. Nor is there any finding tbat permanent and valuable, or any, improvements were made on tbe additional strips thus taken. While tbe findings show that in 1900 appellant widened and raised its roadbed and ballasted its track, they do not show that any of these things were done on the additional strips taken, or that the strips were necessary for or in aid of such purposes. No finding is made that the appellant, on the strength or faith of anything done or said on the part of the owner of the land entered upon, or took the additional strips, or that it, in good faith, believed, or claimed that it had the right or permission so to do. So far as made to appear by the findings, appellant’s taking of the additional strips was wholly unauthorized and unlawful. While an unauthorized taking of land for public use may be ratified by subsequent acts and conduct on the part of the owner, yet such ratification should not be implied merely from the fact of a delay or failure to object, especially when no permanent or valuable improvements are being made thereon. Ordinarily, the law does not compel one to protest against a wrongful entry upon his land at the peril of being held to ratify it. The statute has pointed out the mode by which a party seeking to obtain property for public use may do so lawfully. We see no reason why such mode was not nor why it cannot now be pursued. Cases are also cited to the effect that the grantee takes the land with the burdens imposed upon it and existing at the time of the conveyance. Of course, if respondent’s grantor at the time of his conveyance was estopped from maintaining an action of ejectment for the additional strips taken, then likewise is the respondent estopped from maintaining such action. However, to say that respondent’s grantor was so estopped, we must do so alone upon the finding that during a jieriod of only three years he made no objection to appellant’s taking the additional strips without a finding that he had knowledge thereof, and without a finding that valuable or permanent improvements were made thereon, or that appellant’s entry was induced, or its occupancy sanctioned or acquiesced in by anything that he said or did.

Being of the opinion that the respondent’s grantor, at the time of the conveyance, was entitled to maintain an action of ejectment against appellant for the additional strips, the respondent is not estopped from so doing after the conveyance unless something was done or said by him thereafter to work an estoppel, which is not here claimed.

Let the judgment of the court below be affirmed, with costs. Such is the order.

McCABTY, J., concurs.

BART'CH, C. J.

Under the facts stipulated, found, and revealed by the evidence appearing in the record herein, I am of the opinion that the plaintiff has shown no right of recovery in this case, and therefore dissent from the affirmance of the judgment.  