The result is, that the decree of the chancellor must be reversed with costs, and a decree entered here affirming the decree of the court of chancery appeals for the complainant in accordance with this opinion.

DEEDS RESERVATION OF MINERALS.-The word "minerals," within a grant or reservation of mines and minerals, includes not only metals and metal-bearing rock, but anything mineral in character which can be got by mining: Armstrong v. Lake Champlain Granite Co., 147 N. Y. 495; 49 Am. St. Rep. 683, and note. Petroleum oil and natural gas are minerals: Marshall v. Mellon, 179 Pa. St. 371; 57 Am. St. Rep. 601, and note. See Kelley v. Ohio Oil Co., 57 Ohio St. 317; 63 Am. St. Rep. 721, and note.

ADVERSE POSSESSION-MINERALS.-Possession of the surface of land for more than twenty-one years does not carry with it the possession of minerals below it, where the title to the latter had been severed from that to the surface by deed: Caldwell v. Copeland, 37 Pa. St. 427; 78 Am. Dec. 436, and note; but if there is no severance of coal from the surface, an adverse entry upon the surface extends downward and draws to it title to the underlying min. erals: Delaware etc. Canal Co. v. Hughes, 183 Pa. St. 66; 63 Am. St. Rep. 743, and note.

RAILROAD V. FRENCH.

[100 TENNESSEE, 209.]

EASEMENT-ADVERSE POSSESSION OF LANDS WHICH ARE SUBJECT TO.-One who holds possession of lands which are subject to the right of way of a railroad cannot acquire prescriptive title as against such railroad, so long as the purposes for which he uses them are not inconsistent with the right of way. The possession cannot be adverse until the railroad needs the property so possessed for railroad purposes.

RAILWAY-RIGHT OF WAY.-Occupancy of its right of way by a railroad corporation for the purposes of a water tank, when necessary, is proper, and the owner of land which is subject to a right of way cannot object thereto.

Dickinson & Walker and Buquo & Rudolph, for the railroad. Herman Dunbar, for French.

210 WILKES, J. This action was commenced before a justice of the peace to recover damages to a lot lying adjacent to the railroad, in Erin, Houston county. On appeal, the case was heard before the court and jury, and judgment was rendered for one hundred dollars, and the railroad has appealed and assigned errors.

The facts are that the railroad company is entitled to an easement over one hundred feet on each side of the center of its track for right of way under its charter provisions. Plaintiff has bought a lot extending over fifty feet of this right of way,

and has a deed in fee simple to it. His vendor owned several other lots adjacent, and of which this lot was originally a part, and upon the other portions of the original lot had erected several houses, two as early as 1879, and others at subsequent dates. The lot owned by plaintiff had no house or inclosure upon it, but was a part of the original lot on which the houses had been built on the right of way. In 1896, or 1897, the railroad company erected a water tank upon the vacant lot, for railroad use. The court, in substance, charged that if this lot had been adversely held under color of title by plaintiff and his vendors for seven years or more, his title would be perfect to the land to the extent of his paper boundaries, and the railroad would be liable if it trespassed upon this land to build its water tank. The court refused to charge that there must have been actual adverse possession of this particular lot 211 in a way inconsistent with the easement of the railroad, but said an actual adverse possession of a portion of the lot covered by the original paper title would be sufficient to give title to the extent of the boundaries in the title paper.

There is error in the charge of the court below. It appears from the record that the railroad company, under its charter, has an easement or right of way over one hundred feet on each side of the center of its road, and it has been repeatedly held by this court that a user by an adjacent landowner of the right of way up to the line of the road for an indefinite time is not adverse to the road easement. It may be used for agricultural or any other legitimate and proper purposes. A house may be built upon it and occupied, and it may be inclosed, and the railroad will not lose its easement. The possession for such purposes is consistent with the easement, no matter what kind of a paper title the party in possession may have, and the possession could not be adverse until the railroad may need the premises and demand it for railroad purposes. Occupancy with a house, or inclosure and cultivation and use, are not sufficient to defeat the easement of the road, inasmuch as the road can only demand and take its full right of way when it becomes necessary for railroad purposes, and until then the possession is not adverse. A person who builds upon the right of way of a railroad does so at his peril, no matter what paper title he 212 third may have from a person. And all persons are affected with notice of the extent of the right of way when it depends upon the charter provisions. This being so, the railroad company has the right to occupy any portion of this one hundred

AM. ST. REP., VOL. LXVI.-48

foot right of way at any time it is necessary for its purposes as a railroad. A water tank is a species of property necessary for the purposes of a railroad, and there is no question made or proof introduced to show that it was not necessary to erect it at this point. We cannot presume that the road would place the tank there for any other purpose than that of a railroad use. If it was erected there to annoy and harass plaintiff, or for any other than a necessary railroad purpose and convenience, that fact should have been shown by the proof. The principles here announced were laid down in Railway Co. v. Telford, 89 Tenn. 295, and have been repeated in a number of cases in which the question has come before the court in various ways.

We are constrained to reverse the judgment of the court below, and remand the cause for a new trial. Costs of appeal will be paid by appellee.

ADVERSE POSSESSION-RAILROAD RIGHT OF WAY.-Continued use of land by a grantor is not evidence that his possession is adverse to his grantee; on the other hand, his possession is presumed to be under or in subordination to the legal title held by his grantee, for he is estopped by his deed from claiming that the holding is adverse: Schwallback v. Chicago etc. Ry. Co., 69 Wis. 292; 2 Am. St. Rep. 740, and note. But an owner of the fee, it has been held, who incloses a railroad right of way with his adjoining lands and uses it continuously without the consent of the company, asserts an ownership inconsistent with its rights, and has such an occupancy as ripens into title by adverse possession upon the expiration of the statutory period, although he has a right during such period to use the right of way for any purpose not required for the purposes of the railroad: Matthews v. Lake Shore etc. Ry. Co., 110 Mich. 170; 64 Am. St. Rep. 336; Illinois Cent. R. R. Co. v. Houghton, 126 Ill. 233; 9 Am. St. Rep. 581.

RAILROAD COMPANIES-USE OF RIGHT OF WAY.-A railroad company has a right to exclusive occupancy of land taken for its road, and to exclude concurrent occupancy by the former owners, at any time or for any purpose: Jackson v. Rutland etc. R. R. Co., 25 Vt. 150; 60 Am. Dec. 246; Troy etc. R. R. Co. v. Potter, 42 Vt. 265; 1 Am. Rep. 325. See Brainard v. Clapp, 10 Cush. 6; 57 Am. Dec. 74, and note.

CITIZENS' RAPID TRANSIT COMPANY V. DEW.

[100 TENNESSEE, 317.]

A STREET RAILWAY SHOULD HAVE sufficient employés on its cars to operate them in a careful manner, so as to prevent injury to persons and animals that may go upon the track, and it is answerable for damages resulting from its failure to do so. It is for the jury to determine from all the circumstances whether (he operation of a street-car by one employé only, who must perform the duties both of motorman and of conductor, is negligent.

STREET RAILWAYS.-A DOG ON A STREET RAILWAY TRACK in a public highway is not a trespasser.

THE KILLING OF A DOG BY HIS OWNER, to prevent his suffering after he has been fatally injured through the negligence of a street railway, does not prevent the owner from recovering therefor.

STREET RAILWAYS-DOGS ON THE TRACK.-It is not true that a motorman in charge of a rapidly moving street-car can rely exclusively upon the keen sense of hearing, great alertness, intelligence, and celerity common to dogs when he sees one standing on the track, if, by so doing, he absolves himself from all duty and care to prevent an accident.

DOGS-PROPERTY IN.-The owner of a dog has such property therein as will sustain an action for negligently injuring and killing it.

DOGS-RAILWAYS.-A DOG is an animal such as the statute contemplates in providing statutory precautions when they appear on railway tracks.

A STREET RAILWAY COMPANY IS LIABLE FOR NEGLIGENCE in running a car over a dog standing on its tracks in a public highway.

THE PEDIGREE OF A DOG may be established by common and general reputation and by registries made in certain books, which are shown to be kept for the information of the public and to be commonly received as satisfactory evidence of pedigree.

EVIDENCE OF A DOG'S PEDIGREE and of the qualifications and performances of his ancestors is competent for the purpose of proving his value.

J. S. Pilcher, for Citizens' Rapid Transit Company.

J. D. B. De Bow, for Dew.

318 WILKES, J. This is an action for negligently injuring and killing a dog. It was commenced before a justice of the peace, and, on appeal, was tried in the circuit court, before the court and a jury. There have been two trials, the first resulting in a mistrial, and the second in a verdict and judgment for two hundred and fifty dollars, and defendant, Rapid Transit Company, has appealed and assigned many errors. 319 They are too numerous to treat separately and seriatim. It is said there is no evidence to sustain the verdict. It appears that the Citizens' Rapid Transit Company operates a line of electric street-cars from Nashville to West Nashville, over a highway known as the Charlotte Pike. This pike is a public thoroughfare for wagons and other vehicles, horses, cattle, pedestrians, and is much used and frequented.

The plaintiff was passing over this turnpike, returning from a nutting expedition into the country, in a conveyance with his two daughters. He had taken his gun with him, and also a favorite bird dog. The accident occurred about five o'clock in the evening. The dog was running along the turnpike, or thoroughfare, some one hundred and fifty or two hundred yards in

front of the plaintiff's vehicle, when he started across the tracks of the street-car line, which were laid on the bed of the turnpike, some little birds flying up attracted his attention, and he stopped in the center of the track, and, as some witnesses say, was in the act of "setting" the birds. The term "setting," as used here, has a somewhat technical meaning, and means that he was "standing" and intently looking in one direction. In dog parlance, therefore, "setting" means "standing," and the attitude is also called "pointing." While in this attitude a streetcar came up rapidly, and, some of the witnesses say, almost noiselessly, upon him, and ran over and 320 crushed him so much that his owner, seeing that he was fatally injured, shot and killed him. It appears that the gong was not sounded, the motorman did not shout at the dog, did not make any effort to check the car until it was so close that it was impossible to prevent running over the dog. The motorman excuses his act by saying that the dog came upon the track so abruptly and unexpectedly, and so nearly in front of the car, that there was no time to stop the car or sound the gong, or take any other precautions. There is other evidence to show that the dog could be seen, and was seen, quite a distance before the car reached him, and the weight of the evidence is in favor of this view of the case. The car was running rapidly and smoothly at the time, the dog was in plain view upon the track, and, according to some of the witnesses, the motorman was looking at him for some distance, and evidently expecting that he would leave the track in time to escape injury. All other questions out of the way, there is ample evidence to sustain the verdict of the jury as to the killing, the negligence of the motorman, and the reckless running of the cars at a rapid rate of speed, and without due precaution to prevent accidents to animals on the track.

It was not error in the trial judge to charge that the streetcar company must have sufficient employés on its cars to operate them in a careful manner, so as to prevent damages or injuries to persons and animals that might go upon the track, 321 and was liable for a failure to do so, the question of what number would be sufficient being left to the jury under all the circumstances. It appears that, at this time and place, the motorman was the only employé on the car, and he was doing duty both as motorman and conductor, the latter having left the car after it passed from the more crowded portion of the track nearer the city. The roadway of the street-car company being on the roadway of the turnpike, where persons, horses, and vehicles were