SCOTT et al. v. TEXAS & P. RY. CO., 94 F. 340

PER CURIAM.

When this case was formerly before this court, the contention of the railway company was that the contract sued on, not being in writing, nor to be performed within one year, was void under the statute of frauds, and that the railroad company had acquired the right of way in question, 100 feet wide through the lands described, by the use and enjoyment thereof during a period of 36 years, which use had been exclusive, uninterrupted, continuous, and under a claim of right adverse to the owner of the fee; and, in the alternative, that, if the contract sued on was valid, then the railroad company had acquired the right of way in question by having fully complied in all respects with the terms of said contract.

This court sustained the contention of the railroad company, reversed the judgment of the--circuit court, and remanded the cause for a new trial. Railway Co. v. Scott, 41 U. S. App. 624, 23 C. C. A. 424, and 77 Fed. 726.

The questions presented in this present writ appear to be the same as presented in the former, with the exception that, although the contract provided for a strip, or right of way, 100 feet wide, the railroad company, prior to 1892, only used and occupied a strip 25 feet wide, and therefore the plaintiffs, on the theory that the contract was void, are entitled to recover all of the right of way in controversy except a strip 25 feet wide.

The record shows that, to maintain this contention, the plaintiffs offered evidence to prove that, except for the strip 25 feet wide, prior to 1892, the plaintiffs and their ancestors used, occupied, and cultivated the same, and that the railroad company was not in possession, and this evidence was rejected. If the right of the railroad company to hold the right of way in question is based solely upon adverse use and possession, it would seem that the evidence offered should have been admitted.

If, however, the title of the railroad company is based upon the contract as a valid executed contract, the evidence was properly rejected.

The court held, on the former writ, that, if the contract was invalid, the railroad company had an easement by adverse use and occupancy,- yet it appears clear that the court also decided that the contract sued on, having been fully performed and executed, w-as a valid and binding contract, and that thereunder the railroad company had acquired full title to the right of way as specified and described in the contract, and that was, as admitted by the plaintiffs in their original petition, a, strip 100 feet wide, 50 feet on each side of the center of the track.

Under this view- of the case, and considering, further, that the contention of the plaintiffs in error that the strip (alien for the right of way was only 25 feet wide is in conflict with his former judicial admissions, we are of opinion that the ruling of the court below rejecting the evidence was correct. The judgment of the circuit court is affirmed.