this case. The certificate and patent to the land in question were to Nancy Wright, who had died in 1834; and unless there is evidence to negative the presumption that it was issued in conformity with law,-that is to say, by virtue of a right she had acquired,the jury would not have been justified in finding that it was granted on the ground that she was a resident of Texas on March 2, 1836. A palpable fraud would have been practiced to secure the patent on the ground last stated, which cannot be presumed, and which it certainly would be improper to presume if there might have been a state of facts upon which it could have issued lawfully. Under the testimony, and the authority of the opinion in Hornsby v. Bacon, we hold that so far as the verdict is in conformity with the principle that descent was cast as of the date of Nancy Wright's death, and that her descendants, who were aliens at that time, did not inherit from her, it is correct. Yates v. Iams, 10 Tex. 168; Blythe v. Easterling, 20 Tex. 565. It was not material to consider the status of James Wright, as to his capacity to inherit, as defendant held under him; but it was a material inquiry whether or not any of the plaintiffs or their ancestors inherited from Nancy Wright, inasmuch as it was necessary for them, or some of them, to affirmatively show title, in order to warrant a recovery. Appellants contend that there was evidence sufficient to prove that David Wright, under whom some of the plaintiffs claim, was not an alien at the time of his mother's death. He was born in the United States, of parents who were citizens of that country, and came to Texas with his mother in 1831. He left Texas in 1835. He married in Louisiana; the date not being given, but presumably after he left Mexico, in 1835. This is substantially all that the record states on the subject. To our mind, this testimony was not sufficient to prove that his status had been changed from that of a foreigner to that of a person domiciliated in, or a citizen of, Mexico. Holliman v. Peebles, 1 Tex. 673; Clay v. Clay, 26 Tex. 24; Sayles' Early Laws, art. 116, §§ 6, 7; Id. art. 47, § 3; Yates v. Iams, supra.

In

The next question to be disposed of is whether or not it devolved on the defendant to show that David Wright had not taken the steps necessary to constitute him a person domiciliated in, or a citizen of, Mexico. other words, can it be inferred from his residence there with his mother for the period of four years, at the end of which time, after her death, he abandoned the country, that his original citizenship, or status of foreigner, had been changed to citizenship in that country? We think not. His mere residence there was as consistent with the relation of a foreigner as that of a citizen. The evidence seems to allow of but one reasonable conclusion, viz. that he was and remained an alien. Where it appeared that he was a foreigner on arrival, it was incumbent on

plaintiffs to prove that he acquired capacity to inherit.

Appellants assert that, inasmuch as there was a grant of land to Nancy Wright as the head of a family, her son David being the other constituent of the family, the latter would be entitled to an undivided half thereof in his own right; citing Sayles' Real-Estate Laws Tex. art. 58, and cases cited, which we find neither support nor bear on the proposition, and in our opinion it is without merit.

It follows from what precedes that the verIdict was the only correct one that could have been rendered. This conclusion dispenses with our considering the other alleged errors, which are rendered immaterial. The judgment is affirmed.

On Rehearing.

(Dec. 11, 1895.)

In reference to the point made in the first paragraph of the motion for rehearing,—that, Nancy Wright being entitled to but one league of land from the Mexican government, the grant by the republic to her of a league and labor conclusively shows that the latter grant had no reference to her right acquired under the colonization laws of Mexico, -we are of opinion that such fact does not justify the conclusion contended for. Her right as a colonist in Mexico was to a headright, as the head of a family, and the grant by the republic was for such a headright, and it was natural for the certificate to be for the quantity of land it allowed in such cases. The fact mentioned does not, in our opinion, affect the applicability of the rule in Hornsby v. Bacon. The motion will be overruled.

OLIVE et al. v. SABINE & E. T. RY. CO.1 (Court of Civil Appeals of Texas. Oct. 31, 1895.)

RAILWAY COMPANIES RIGHT OF WAY-DESCRIPTION-SUFFICIENCY OF-CONSTRUCTION-RIGHTS OF OWNER OF FEE THEREIN-INCONSISTENT USE -IMPROVEMENTS-LANDLORD AND TENANT.

1. After the construction by a railway company of its railway tracks across land, a conveyance to the company by the landowner of a "right of way" across the land, without further description, is not void for uncertainty.

2. A conveyance of a "right of way 200 feet wide" over a certain tract conveys to the grantee the privilege of putting all parts of the strip 200 feet wide to all uses for which a right of way may be employed.

3. Where a right of way of a certain width is conveyed to a railway company, the owner of the fee may put the land to all uses consistent with the exercise by the company of its rights and performance of its duties.

4. The erection of buildings on land, over which a right of way has been conveyed to a railway company, by the owner in fee, is inconsistent with the rights of the company, though it has no specific use to which it expects to put the ground.

5. In a suit by a railway company to com1 Rehearing denied.

pel the removal of structures from its right of way, the defendants cannot recover the value of the improvements as possessors in good faith.

6. A lessor, during the lease, conveyed a right of way across the land to a railway company. The lessee erected buildings on the right of way of the company, and afterwards, before the expiration of the lease, purchased the land. Held that, after the expiration of the lease, the title of the company to the right of way was superior to that of the lessee, and therefore it might compel the removal of the buildings.

Appeal from district court, Hardin county; L. B. Hightower, Judge.

Action by the Sabine & East Texas Railway Company against Olive, Sternenberg & Co. There was a judgment for plaintiff, and defendants appeal. Affirmed.

P. A. Work and Hume & Kleberg, for appellants. Baker, Botts, Baker & Lovett and Votaw & Chester, for appellee.

WILLIAMS, J. This suit, as originally instituted, was, in form, an action of trespass to try title, by appellee, to recover of appellants its right of way across the James Pearson tract of land, in which it was alleged that appellants had entered upon such right of way, and ousted plaintiff therefrom. Appellants, in their answer, claimed, in substance, that they were the owners of the feesimple title to the Pearson tract, and were making only such use of the land included within appellee's right of way as they were entitled to make as such owners. They set out in detail the facts, showing the character of their use of the land, and the structures and improvements which they had made upon it. The latter are more fully stated below. Appellee thereupon filed additional pleadings, contesting the right of appellants to maintain upon its right of way the structures and improvements described in the answer, and claiming that such use of the land by the owner of the fee was inconsistent with its enjoyment of its right of way over the land, and asked for judgment requiring appellants to remove such structures. Appellants, by their pleadings, asked for compensation for the value of the improvements in case they were required to remove them, alleging that they had been made in good faith.

Ap

The facts upon which the decision turns are sufficiently stated in the pleadings, and shown by the evidence, and, as stated by counsel for appellants, are as follows:

"(1) In 1881 appellee entered upon the James Pearson 160-acre tract of land, in Hardin county, Texas, and constructed its roadbed and railway track thereon, and across the same, and has ever since that time continuously and openly used and operated the same.

"(2) Thereafter, on November 3, 1881, Olive & Sternenberg leased, for a period of 10 years, from the then owner in fee, the East Texas Land Company, the said James Pearson survey. The lease provided that the

lessees might locate, build, and maintain a sawmill and other buildings necessary for the transaction of a lumber-milling business on said tract of land. Said lessees went into immediate possession of said land under said lease, erecting improvements thereon, and they and their successors have remained in possession of said tract of land ever since said time.

"(3) On the 29th day of March, 1884, appellee obtained from the East Texas Land Company a deed, conveying to it, for the purpose of constructing, operating, and maintaining its railroad, the right of way, 200 feet in width, over and upon, among other surveys, said James Pearson survey.

"(4) On the 22d day of September, 1887, before the expiration of their said lease, Olive & Sternenberg purchased by warranty deed the fee of said Pearson survey from the East Texas Land & Improvement Company, the immediate vendee of the East Texas Land Company, of which last-named company they had theretofore, November 3, 1881, leased said land; said deed conveying all of the James Pearson tract of land to Olive & Sternenberg, saving and excepting the right of way conveyed to appellee by said deed of March 29, 1884.

"(5) December 7, 1889, appellants, Olive, Sternenberg & Co., succeeded Olive & Sternenberg in the ownership and possession of all the land, buildings, and improvements, and rights and privileges in controversy in this suit.

"(6) From November 3, 1881, until the 22d day of September, 1887, Olive & Sternenberg erected on said Pearson survey, within 100 feet of the center of each side of plaintiff's roadbed and railway track, the following buildings and structures: One grain house; part of planing-mill building, 200 feet in length; a mill business office, with cistern and shed therefor; a storehouse; a retail liquor house; one drugstore and physician's office, combined; one-half dwelling house; a half, each, of three other dwelling houses; one-fourth of another dwelling house; and a portion of a fifth dwelling house,-i. e. a portion of said last-named structures being within the said 100 feet, and the balance thereof being outside thereof. After said 22d day of September, 1887, up to the 7th day of December, 1889, Olive & Sternenberg placed the following structures, and planted the following trees and vines, within said 100 feet: One residence; the front gallery and corner of a second residence; an elevated water tank, and pipes and hydrants connected therewith; barber shop; feed house; 6 peach trees, 6 apple trees, 30 plum trees, 47 fig trees, 158 pear trees, and 530 grapevines. After said date, and up to the time of the institution of this suit, appellants, Olive, Sternenberg & Co., owned, besides the property herein before described, situated within 100 feet on each side of the center of appellee's railroad track, the following property:

A switch or a side track, extending from plaintiff's said track to, along, and parallel with the grain warehouse and sawmill of appellants; a switch or a side track, extending from plaintiff's said railroad track to, along, and parallel with the planing mill and dry kiln belonging to appellants; a road, laid with cross-ties and iron rails, and known as the "dolly way"; a logging railroad, whichas also said dolly way-was constructed and run at right angles with plaintiff's railroad track, and across the same, and extending on each side for more than 100 feet from the center of plaintiff's railroad track.

"(7) During the trial of the cause appellee limited its action to a prayer for a decree requiring appellants to immediately remove from the limit of its alleged right of way the following structures: One grain house; part of planing mill; a mill business office, with cistern and shed therefor; a storehouse and retail liquor house; one drug store and physician's office, combined, and also portions of the following structures: One-half of three dwelling houses, one-half of another dwelling house, a portion of another dwelling house, the front gallery and the corner of a residence; also, one other dwelling house, a residence, a house used as a barber shop, and a feed house used for the storing of forage. Appellee's prayer for the removal of the other structures hereinbefore described, and of the trees and fences, was by it finally withdrawn.

"(8) Appellee's railroad has been operated, with the aforesaid structures and trees upon its right of way, for some 12 years. No specific or needful public use by appellee of the ground occupied by appellants' improvements was shown. Appellee's train master testified that, in his opinion, the trees, fences, and structures of appellants tended to increase the dangers of fire by sparks from the engines, and liability of killing stock at said place, but admitted, upon cross-examination, that, so far as he knew, there had never been a fire at said place, and that he did not know that any stock was ever killed there.

"(9) Appellants' structures have not interfered with the expeditious handling of appellee's freight and passenger traffic, and it has in no way been inconvenienced by the presence of said structures upon its right of way, except as may appear from the evidence above stated. Testimony showing that the buildings and structures had been placed on said alleged right of way with the consent and acquiescence of the appellee, as well as testimony offered by the appellants to show the value of said improvements, was, upon objection of appellee, excluded, as appears from the bills of exception in the record."

The case was tried before a jury, and verdict was returned for plaintiff, on which the court gave judgment for plaintiff for the recovery of the right of way, as described, and requiring defendants to remove there

from the structures mentioned in paragraph 7 of the above statement and for costs. The leading contention of appellants is that neither the pleadings nor evidence stated a case in which appellee, as the owner of the easement of a right of way, had a right to the relief sought against them as the owners of the fee. We find it unnecessary to discuss, separately, the pleadings and the evidence. The facts upon which we base our decision appear from both, all of the alleged facts being proven and vice versa, so far as they are considered essential to a decision. It is claimed that the deed to the right of way was void because of the indefiniteness of the description. The road, at the date of the deed, had been located across the Pearson survey, and was a thing in existence. The conveyance of the "right of way" evidently had reference to the road, as it existed, and conveyed the right to occupy a strip of land 200 feet wide along its line. But, had the situation been otherwise, the deed was sufficient, and would have authorized the railway company to cross the land with its road, selecting its own route. The easement conveyed is the right of way, 200 feet wide, across the James Pearson survey, and it is contended that this entitled the company to occupy and use, for its purposes, not necessarily all of the strip 200 feet wide, but only so much thereof as was essential to the purposes for which the right was obtained, i. e. a convenient passage across the land, and a proper performance of its duties by the company. But the conveyance is of a right of way 200 feet wide over a larger tract, and not simply a right of way over a strip of land 200 feet wide. The grant defines the extent of the right of way, and the court cannot restrict it to narrower limits, though it should be of the opinion that so much was not needed for the purposes intended. The right of the railway company, such as it is, is, as between it and its grantor, the same over every part of the land designated in the grant; and it is so because the parties by the deed have made it so. The case differs from those on which counsel for appellants rely. Johnson v. Kinnicutt, 2 Cush. 153; Graftin v. Moir (Sup.) 1 N. Y. Supp. 4; Id., 130 N. Y. 465, 29 N. E. 974. In both of those cases the easement granted was a right of way of an undefined width over a strip of land, and not a right of way of a specified width over a larger tract, and both decisions were made to turn upon the descriptive language of the grant. In the former case, Chief Justice Shaw said: "This question must depend upon a just construction of the terms of the grant. The grantors owned both estates in fee, and they could grant a more or less restricted right, by way of covenant, as they should think proper." In the latter case, the court of appeals said: "When the right of way is not bounded in the grant, the law bounds it by the line of reasonable enjoyment." Hence, the convey

ance of the right of way, as between the grantor and the grantee, in the deed here in question, conferred upon the railway company the privilege of putting any and all parts of the strip 200 feet wide to all uses for which a right of way may be employed, under the law of this state, in the construction, maintenance, and operation of a railway. But the title to the fee remained in the grantor, and his right to enjoy the property was impaired only to the extent necessary to the full exercise by the grantee of the rights acquired by it under the conveyance. And here a conflict of opinion has arisen among the courts as to the correlative rights of the owner of the fee and the owner of the right, -some holding, as matter of law, that the nature of the use of the right of way, essential in the operation of a railway, is such as to necessitate the entire possession and control of the soil, burdened with the right, and to exclude the owner of the fee from any concurrent use or enjoyment of it whatever; and others holding that, while the right of the company is the paramount one, and the owner cannot impede its full exercise, or put the land to uses inconsistent with its full exercise, still it is not of such a nature as to prevent the use of the land by the owner for any purpose at all. In other words, that some uses by the owner are consistent with the full exercise by the railway company of all its rights and the accomplishment of all its ends. The latter view is the one generally held, and has been expressed in a number of opinions in this state. Lumber Co. v. Harris, 77 Tex. 22, 13 S. W. 453; Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261; Muhle v. Railway Co., 86 Tex. 459, 25 S. W. 607.

Counsel for appellee urge that the cases referred to have not definitely settled the question in this state, and insist that the law is correctly laid down in the line of decisions first mentioned. But, if the question is to be viewed as an open one, it seems to us that those decisions are incorrect, because they are based upon an incorrect assumption of a fact. Common observation teaches us that the owner of the fee may use the land for some purposes without interfering with the operation of the road, and without hindering the company in the exercise of any right. The right to fence the right of way, given by statute, and the duty to keep it free from nuisances, combustible material, and tne like, as declared by the courts, may not conflict with the use of the land by the owner for some purposes. The track may not be fenced at any place, and cannot be fenced at all places. Combustible material and noxious matter may be kept off the right of way, and still the owner need not, necessarily, be excluded from all use of it, at all times and places. And a particular use of the land by the owner may not obstruct or hinder the exercise of any right or the performance of any duty. But if, in any instance, the right to use the land, claimed by

the owner, is, in fact, irreconcilable with the right vested in the railway company, the latter must prevail. So the question is whether or not the use made of the right of way by the owner of the fee, in this case, is such as is inconsistent with the rights of the railway company. As we have seen, the company's rights extend to every part of the strip described in the deed. It has the right, at all times and places, to have such access to and use of the land as is necessary to enable it to perform any duty or accomplish any end which the law requires or permits it to perform or accomplish upon the right of way. The uses to which it may put its right of way include the building of side tracks, buildings, telegraph lines, and other structures necessary for its business, the making of cuts and embankments, taking material for its necessary building purposes, the inclosure of its track with fences, and the keeping of its premises in proper and safe condition for the prosecution of its business, and the protection of others from injuries to result from any of its omissions. Hence, a possession taken or use made by the owner of the fee of a portion of the land, over which these rights extend, which, necessarily, during its continuance, excludes the owner of the right of way from any use of or access to the portion so held or used, would be an invasion of the right of the latter. It cannot be held that the exclusive possession of a portion of the land charged with the easement, by the owner of the fee, is consistent with the right of the person entitled to the easement to put the land to such uses as those mentioned. From the pleadings and evidence, it appears that appellants occupy parts of the right of way of appellee with buildings, which necessarily exclude appellee from any use whatever of the ground on which they stand, and it is only structures of this character that are, by the judgment, required to be removed. It is no answer to say that appellee has shown no specific use to which it expects to put the ground. The uses to which it is entitled to devote it are those of a right of way. Those uses require that it should at all times have access to every part of the ground, and, while they may be consistent with some use of the land by the owner of the fee, they are not consistent with such uses as those made in this The right asserted by appellants is necessarily irreconcilable with the right of the appellee. The opinion in the case of Muhle v. Railway Co., supra, does not conflict with this view. There the land was condemned for the purposes of a depot, but the company had never taken any steps to appropriate it to such uses, and was not, when the issue arose, using its easement. Here the road was built upon the land, and the company was in the full exercise of its right to the easement, and was, hence, entitled to have the land kept free from any such permanent structures as those main