S. A. L. Ry. Co. v. Board of Bond Trustees, Etc.

The mere construction and use of a hard surfaced or other public highway longitudinally upon the unused portion of a railroad right of way may not ordinarily be regarded as an adverse user, but as a continuing permissive use subject to the lawful and reasonable demands of the railroad company, should the space occupied by the public highway become necessary for proper railroad purposes, before the public acquires a right to use a part of the railroad right of way by condemnation or other lawful means. An injunction does not appear to be the appropriate remedy, even if complainant has title as alleged, in view of the averments that a public road has existed on the locus in quo for a number of years, the public authorities having the power of eminent domain for public road purposes. Secs. 1195, 1197, 1612, 1654, Rev. Gen. Stats. 1920. See East Florida Telephone Co. v. Seaboard Air Line Ry. Co. 85 Fla. 378, 96 South. Rep. 95.

The complainant must show title or right to the locus in quo to maintain this suit.

Where Congress grants a right of way to a common carrier railroad company through the public domain of the United States, such right of way is held to be "a limited fee, made on an implied condition of reverter" to the United States; and as the United States retains a proprieary interest in the land, such right of way is not subject to alienation or to the acquisition of title by adverse possession, under the laws of a State (Northern Pac. R. Co. v. Ely, 197, U.S. 1, 25 Sup. Ct. Rep. 302; Northern Pac. R. Co. v. Townsend, 190 U.S. 267,23 Sup. Ct. Rep. 671; Rio Grande Western R. Co. v. Stringham,239 U.S. 44, 36 Sup. Ct. Rep. 5; Great Northern R. Co. v. Steinke,261 U.S. 119, 43 Sup. Ct. Rep. 316, L.R.A. 1916B 658) except as may be permitted by Acts of Congress. Stuart v. Union Pac. R. Co., 227 U.S. 342, 23 Sup. Ct. Rep. 338; Union Pac. R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 34 Sup. Ct. Rep. 104; Union Pac. R. Co. v. Snow, 231 U.S. 204, 34 Sup. Ct. Rep. 104; Northern Pac. R. Co. v. Concannon, 239 U.S. 382, 36 Sup. Ct. Rep. 156; Chap. 1782, 23 Stats. at Large 538, April 28, 1904; Chap. 181 U.S. Stats. at Large, June 24, 1912. See also State of Alabama v. Schmidt, 232 U.S. 168,34 Sup. Ct. Rep. 301; Rudy v. Rossi,248 U.S. 104, 39 Sup. Ct. Rep. 46. In the Federal grants of railroad rights of way, the United States retained the ultimate fee to accomplish its purposes in granting "the right of way through the public lands." Northern Pac. R. Co. v. Ely, 197 U.S. 1,25 Sup Ct. Rep. 302; Northern Pac. R. Co. v. Townsend,190 U.S. 267, 23 Sup. Ct. Rep. 671.

The above rule does not apply to a railroad right of way obtained by purchase, condemnation or gift, except as to space actually occupied or reserved for right of way purposes. See Missouri, K. T. R. Co. v. Cook, 163 U.S. 491, text 498,16 Sup. Ct. Rep. 1093; Silver Springs, O. G. R. Co. v. Van Ness,45 Fla. 559, 34 South. Rep. 844; City of Raton v. Pollard, 270 Fed. 5; Dulin v. Ohio River R. Co., 73 West Va. 166,80 S.E. Rep. 145, L.R.A. 1916B 653, Ann. Cas. 1916B 1183; Alexander City Union Warehouse Storage Co. v. Central of Georgia R. Co., 182 Ala. 516, 62 South. Rep. 745; Mobile G. R. Co. v. Rutherford, 184 Ala. 203; 63 South. Rep. 1003; Mobile O. R. Co. v. Strain, 125 Miss. 697, 88 South. Rep. 274; 22 R. C. L. 868; 87 Am. Rep. 781, Note: Spottiswoode v. Morris E. R. Co.,61 N.J.L. 322, 40 Atl. Rep. 505, affirmed in 63 N.J.L. 667,44 Atl. Rep. 1100; Louisville N. R. Co. v. Smith, 125 Ky. 336,101 S.W. Rep. 317, 128 Am. St. Rep. 254; Matthews v. Lake Shore M. S. Ry. Co., 110 Mich. 170, 67 N.W. Rep. 1111, 64 Am. St. Rep. 336; Pittsburg, C. C. St. L. Ry. Co. v. Stickley,155 Ind. 312, 58 N.E. Rep. 192; St. Louis S. F. R. Co. v. Ruttan,90 Ark. 178, 118 S.W. Rep. 705; Louisville N. R. Co. v. Quinn, 94 Ky. 310, 22 S.W. Rep. 221. See also New York N.H. H. R. Co. v. Cella, 86 Conn. 275, 85 Atl. Rep. 521; Denver R. G. R. Co. v. Mills, 222 Fed Rep. 481; 2 C. J. 226; 29 C. J. 387; 22 R. C. L. 868; 1 R. C. L. 737.

In Florida by statute a railroad company may sell any of its "lands or real estate not necessary for its use." Sec. 4354 Par. 3, Rev. Gen. Stats. 1920. The right of way in this case was granted by the State through State lands, and is not subject to the Federal rule. The Federal government has no interest in the grant and it is subject to the laws of the State. See St. Louis, I. M. S. Ry. Co. v. Martin,104 Ark. 274, 149 S.W. Rep. 69; Ft. Worth D.C. Ry. Co. v. Western Stockyards Co., (Tex.Civ.App.) 151 S.W. Rep. 1172; Illinois Central R. Co. v. Moore, 160 Ill. 9, 43 N.E. Rep. 364; Illinois Cent. R. Co. v. Wakefield, 173 Ill. 564, 50 N.E. Rep. 1002; 2 L.R.A. (N.S.) 273 Notes; 19 L.R.A. (N.S.) 216 Note; L.R.A. 1916B 657 Note; 2 C. J. 218, 225.

The statutory grant of a railroad right of way through State lands cannot be challenged by the defendants in this proceeding (Trustees of the Internal Improvement Fund v. St. Johns Ry. Co., 16 Fla. 531; Trustees of Internal Improvement Fund v. Root, 63 Fla. 666, 58 South. Rep. 371), therefore the portions of the answer on that subject may well have been stricken.

In this case the bill in effect alleges a statutory grant by the State to the complainant's predecessor railroad company of a "right of way through the State lands for two hundred feet in width," and that subsequent to the inuring of said right of way, a confirmatory deed to certain of the lands covered by the granted right of way was issued by the State of Florida to the complainant's predecessor in title, and that certain of the lands covered by the right of way were subsequently conveyed by the State of Florida to individuals. Thus the lands on which the right of way existed that were conveyed by the State to the railroad company, became vested in fee simple absolute in the company, no contrary statutory intent appearing; and the conveyance by the State to individuals of lands covered by the existing right of way, were subject to the railroad company's rights under the prior grant of a "right of way through" such "State lands." If the right of way be abandoned the lands covered by the right of way belong to the railroad company or other grantee of the ultimate fee. See Denver R. G. R. Co. v. Mills, 222 Fed. Rep. 481; Barnes v. Southern Pac. Co., 300 Fed Rep. 481.

The answer in effect avers that the railroad company conveyed certain of the lands covered by the right of way to other parties without reserving any right of way, and that the only right of way complainant has, is a strip less than fifty feet in width on each side of its track, and that the locus in quo is not within that space. Such portions of the answer in view of other averments, may be material on an issue as to whether the complainant has title to the locus in quo, particularly in view of the right of the railroad company under Section 4354, Par. 3, Rev. Gen. Stats. 1920, "to sell any lands or real estate not necessary for its use." See Seaboard Air Line Ry. Co. v. McRainey, 69 Fla. 462, 68 South. Rep. 753.

The decision in Holland Co. v. Northern Pac. Ry. Co., 214 Fed. Rep. 920, that a railroad company cannot dedicate to other uses any portion of its right of way that was granted to it by Congress, "through the public domain" of the United States even though the lands covered by the right of way be also granted to the railroad company by the United States was unnecessary because the dedication in that case, 208 Fed. 598, 600, reserved the strip in controversy for railroad purposes, and the decision does not accord with Union Pac. R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 34 Sup. Ct. Rep. 101, Northern Pac. R. Co. v. Concannon, 239 U.S. 382, 36 Sup. Ct. Rep. 156, and Chapter 181 (37th U.S. State, at Large), and is not applicable to a grant by the State of a "right of way through State lands," when the State subsequently conveys to the railroad company the ultimate fee in the lands on which the granted right of way exists, since the State laws are applicable to rights of way and to lands granted to the railroad company by the State, and a State statute expressly authorizes a railroad company "to sell or lease any lands or real estate not necessary for its use," while the State laws are not applicable to grants of railroad rights of way made by the Congress, the dominant Federal sovereign retaining a proprietary interest in the lands (Northern Pac. R. Co. v. Townsend, 190 U.S. 267, 23 Sup. Ct. Rep. 671), except as may be permitted by Congress. Northern Pac. R. Co. v. Ely, 197, U.S. 1, 25 Sup. Ct. Rep. 302; Union Pac. R. Co. v. Laramie Stock Yards Co., 231 U.S. 190,34 Sup. Ct. Rep. 101; Northern Pac. R. Co. v. Concannon, 239 U.S. 382,36 Sup. Ct. Rep. 156; Chap. 181 (37 U.S. Stats. at Large, Part 1) June 24, 1912; Chap. 1782, 33 U.S. Stats. at Large, 538, Apr. 28, 1904.

Limitations of the doctrine of merger do not affect the provision of the statute authorizing sales to be made.

If the State laws relating to alienation and to title by adverse possession are with the permission of Congress applicable to a railroad right of way granted by Congress through the public domain of the United States, when the "absolute or fee simple title," to the lands covered by the right of way grant, except to a width of "fifty feet on each side of the center of the main track," is surrendered by the United States (Sec. 3, Chap. 181, 37 U.S. Stats. at Large, Part 1, June 24, 1912; Union Pac. R. Co. v. Thedan, 104 Kan. 289,178 Pac. Rep. 441), certainly such State laws are applicable to a railroad right of way granted by the State through State lands, at least for such portion as is not needed or used or reserved for railroad purposes, where the absolute fee is subsequently conveyed to the railroad company and the right of way granted by the State is not accepted from the operation of State laws, but on the contrary, the statute expressly confers upon the railroad company power "to sell any lands or real estate not necessary to its use." See State of Alabama v. Schmidt, 232 U.S. 168, 34 Sup. Ct. Rep. 301; 2 C. J. 226. Railroad companies have the right of alienation of property owned by them except as may be restrained by valid laws.

The provisions that "the real estate received by voluntary grant shall be held and used for the purposes of such grant only," relates to the use of such property, and is not inconsistent with the express authority "to sell, lease or buy any lands or real estate not necessary for its use." Railroad rights of way acquired by purchase, gift, condemnation or prescription are not required to be 200 feet in width; and the statute granting a right of way through State lands does not expressly or by implication require a 200 feet right of way to be maintained or reserved. Nor does the statute forbid alienation of portions of the granted right of way, but the quoted statute authorizes sales by the railroad company of "any lands or real estate not necessary for its use." Where the ultimate fee passes from the State under a grant or a patent, the State has then no proprietary interest in the lands and no longer preserves the 200 feet width of a granted right of way; and if sales of portions thereof not needed for right of way purposes are made, and subsequently such portions are needed, they can be re-acquired by purchase or condemnation under express provisions of the statute. There is nothing in the Statute to indicate an intent to preserve by law the full width of rights of way granted through State lands at least after the ultimate fee passes from the State; or to restrain the right of alienation except as to lands that are necessary for railroad use. Where the Congress permits State laws to operate upon rights of way granted to railroads through Federal lands, it yields the "absolute or fee simple title" to within "fifty feet on each side of the center of the main track" to meet the rights acquired under State laws, Sec. 3, Chap. 181 (37 U.S. Stats. at Large, Part 1) June 24, 1912; and the granting to a railroad company of the ultimate fee in State lands must be likewise of the same effect as to lands within the granted right of way that are "not necessary for" right of way or other railroad purposes. The statutory right to lease, sell or buy any lands or real estate not necessary for railroad use, certainly adds to the legal effect of granting the ultimate fee in lands covered by the right of way. When a railroad company acquires the full ownership of property the right of alienation is a legal incident; and such property is subject to the laws of the State as to sale, condemnation and adverse possession except as otherwise provided by law. See 33 Cyc. 219 et seq.; 2 C. J. 218, 225; Laurel County v. Howard, 189 Ky. 221,224 S.W. Rep. 762.

Where the "absolute or fee simple title" is yielded by the United States the Federal law no longer preserves the granted right of way except to a width not less "than fifty feet on each side of the center of the main track," c. See page 139 of U.S. Stats., Vol. 37, Chap. 181, approved June, 1912; Union Pac. R. Co. v. Laramie Stock Yards Co., 231 U.S. 190,34 Sup. Ct. Rep. 101. When the State grants or patents the ultimate fee or the "absolute or fee simple title" in lands covered by a previously granted right of way, it makes no express reservation as to any part of the previously granted right of way as does the United States, but by implication an exception or reservation is extended to the part of the right of way "necessary to its use" as it is expressly authorized to sell all "not necessary for its use." In Central Pac. R. Co. v. Droge, 171 Cal. 32,151 Pac. Rep. 663; Oregon Short Line R. Co. v. Quigley, 10 Idaho 770,80 Pac. Rep. 401; Union Pac. R. Co. v. Theden, 104 Kan. 289,178 Pac. Rep. 441, and other similar state cases the decisions were upon Federal grants of railroad rights of way, where the United States reserved the fee in the lands and had not relinquished such title as in Union Pac. R. Co. v. Laramie Stock Yards Co.,231 U.S. 190, 34 Sup. Ct. Rep. 101; 37 U.S. Stats. at Large, Part 1, p. 139; Northern Pac. R. Co. v. Concannon,239 U.S. 382, 36 Sup. Ct. Rep. 156; Northern Pac. R. Co. v. City of Spokane, 45 Wn. 229; 88 Pac. Rep. 135.

A railroad right of way is private property and does not have all the attributes of a public right of way for streets and highways. Pittsburg, C. C. St. L. Ry. Co. v. Stickley,155 Ind. 312, 58 N.E. Rep. 192; 1 R. C. L. 737; L.R.A. 1916 B, Note 657. In Missouri and other States there are controlling statutes. 2 C. J. 226. See McLucas v. St. Joseph G. I. R. Co., 67 Neb. 603, 93 N.W. Rep. 312; Hannibal St. J. R. Co. v. Totman, 149 Mo. 657, 51 S.W. Rep. 412.

Where a statute grants to a railroad company a right of way 200 feet in width through State lands, and the State subsequently pursuant to a legislative grant conveys to the railroad company in fee simple absolute, the lands covered by the granted right of way, the right of alienation is a legal incident, and the laws of Florida do not prohibit the railroad company from selling such lands except such as are necessary or are occupied or used or reserved for railroad purposes; but the statute expressly authorizes the railroad company to sell any of its lands that are "not necessary for its use." Lands that are subject to sale and conveyance are in general also subject to loss and acquisition by adverse possession. Land owned by a railroad company for its right of way is not public property as is ordinary public highway, but it is private property that is subject to public service to the extent required by usage or by law. "Railroad property is private property devoted to a public use." Northern Pac. R. Co. v. State of North Dakota ex rel. Attorney General,236 U.S. 585, text 595, 35 Sup. Ct. Rep. 429. An ordinary public highway being public property is not subject to taxation or to sale or adverse possession. A railroad right of way, being private property, unless otherwise provided by law, is subject to taxation and also to sale and conveyance for railroad purposes and also for other purposes to the extent that it is not needed for rendering the public service; and to the extent that a railroad right of way is subject to sale and conveyance for other than railroad purposes, it is also subject to loss and acquisition by adverse possession, since railroad property is subject to the laws of the State regulating the loss and acquisition of title to lands, as much as is the property of other parties, except in so far as the railroad right of way property is necessary for the public service being rendered by the company. The law does not require a railroad right of way to be maintained or reserved at any given width, but leaves that to the demands of the public service. The statute granting the railroad right of way 200 feet in width through State lands, does not expressly or by implication require the entire 200 feet so granted to be occupied, used or reserved for right of way purposes; but a subsequent statute expressly authorizes a railroad company to sell any of its lands that are "not necessary for its use." Seaboard Air Line Railway v. McRainey, 69 Fla. 462, 68 South. Rep. 753.

Where Congress grants a railroad right of way through the public lands of the United States, the fee simple title remains in the United States, and of course State laws as to transfer and adverse possession cannot apply to any part of the granted right of way. See Northern Pac. R. Co. v. Townsend,190 U.S. 267, 23 Sup. Ct. Rep. 671. But where Congress subsequently grants or relinquishes to the railroad company in fee simple absolute the lands covered by the granted right of way, then the State laws as to transfer and adverse possession are applicable to the right of way lands, to the extent permitted by the Federal statute, since the United States has then no proprietary interest in the lands to which the title is relinquished and no further control except to the extent that the right of way lands are needed for interstate railroad purposes. This is made clear by the decisions of the United States Supreme Court and by Acts of Congress making portions of Federal granted rights of way subject to the laws of the State through which the railroad passes "as though the land embraced within the lines of said right of way had been granted by the United States absolutely or in fee instead of being granted as a right of way." For example, An Act of Congress approved June 24, 1912, provides that "all conveyances or agreements heretofore made, of or concerning land forming a part of the right of way and all conveyances or agreements confining the limits of the right of way (granted by Congress to certain railroad companies) or restricting the same, are hereby legalized, validated, and confirmed to the extent that the same would have been legal or valid if the land involved therein had been held by the corporation making such conveyances or agreement under absolute or fee-simple title.

"That in all instances in which title or ownership of any part of said right of way heretofore mentioned is claimed as against said corporation, or either of them, or the successors or assigns of any of them, by or through adverse possession of the character and duration prescribed by the laws of the State in which the land is situated, such adverse possession shall have the same effect as though the land embraced within the lines of said right of way had been granted by the United States absolutely or in fee instead of being granted as a right of way.

"Sec. 2. That any part of the right of way heretofore mentioned which has been, under the law applicable to that subject, abandoned as a right of way is hereby granted to the owner of the land abutting thereon.

"Sec. 3. That nothing hereinbefore contained shall have the effect to diminish said right of way to a less width than fifty feet on each side of the center of the main track of the railroad as now established and maintained." 37 U.S. State at Large, Part 1, p. 139. See Union Pac. R. Co. v. Laramie Stockyards Co., 231 U.S. 190, 34 Sup. Ct. Rep. 101; Chap. 181 U.S. Stats. at Large, June 24, 1912; Northern Pac. R. Co. v. Ely, 197 U.S. 1, 25 Sup. Ct. Rep. 302; Union Pac. R. Co. v. Theden, 104 Kan. 289, 178 Pac. Rep. 441; Northern Pac. R. Co. v. Concannon, 239 U.S. 382, 36 Sup. Ct. Rep. 156.

"While in some jurisdictions the view obtains that lands held by a railroad company for a right of way are held for a public purpose and cannot be acquired by adverse possession, the weight of authority is strongly opposed to this view, it being held in most jurisdictions that, in the absence of some statute otherwise providing, title by adverse possession may be acquired to lands acquired by a railroad company for a right of way or depot." 2 C. J. pp. 225, 226, and authorities cited; 22 R. C. L. 868."

Where the State grants to a railroad company a right of way through State lands and the State does not convey, but retains the ultimate fee to the lands covered by the granted right of way, the lands are not subject to sale or adverse possession, since the State remains the owner of the fee (See Chap. 5595, Acts of 1905, Sec. 28 Ch. 610), as in the Federal grant referred to in Northern Pac. R. Co. v. Townsend,190 U.S. 267, 23 Sup. Ct. Rep. 671, and while in such case the railroad company may transfer the granted right of way in sales of the railroad property to another company for railroad purposes, yet any use or non-use of such granted right of way by a railroad company that operates as an abandonment or forfeiture of the granted right of way, would cause an extinguishment of the right of way easement, or a reverter to the State or to its grantee of the fee simple title to the lands covered by the granted right of way, in the absence of other controlling law or facts.

Where a statute grants to a railroad company "the right of way through the State lands for two hundred feet in width," and a railroad is constructed upon such right of way, and the State subsequently by patent conveys to the railroad company the ultimate fee title to the legal subdivision of lands covered in whole or in part by the previously granted right of way, the railroad company thereby becomes the owner of the entire estate in the land (whether the right of way and the fee simple title merge or not); and the right of alienation is a legal incident to such ownership, subject to the laws of the State regulating conveyances by a railroad company of its property that is devoted to a public use.

Where the State has conveyed to a railroad company the fee simple title to lands without reservation, the State then has no proprietary interest in or control over such lands; but by virtue of its sovereignty the State may restrain and regulate the alienation of property owned by railroad corporations; and by statute it is provided that "every railroad and canal company shall be empowered * * * to take and hold voluntary grants of real estate and other property * * * but the real estate received by voluntary grant shall be held and used for purposes of such grant only," and "to purchase, hold and use * * * real estate and other property * * * and to sell, lease or buy any lands or real estate not necessary for its use." Sec. 4354, Rev. Gen. Stats. 1920.

Where a statute grants to a railroad company "the right of way through the State for two hundred feet in width," and the railroad company constructs a railroad on the right of way, and the State subsequently by patent conveys to another party the ultimate fee title to the lands on which exists the right of way previously granted to the railroad company, the grantee by operation of law takes the title to the lands subject to the rights of the railroad company in the granted right of way over the lands. The extent of the rights of the railroad company to which the conveyance of the fee to another is impliedly subject, depends upon the law that is applicable to the facts as they may appear. If the railroad company abandons the right of way, the fee is then relieved of the encumbrance. Whether the right of alienation that is incident to ownership is restrained as to any part of the granted right of way of a railroad company, is determined by the interpretation of controlling statutes. In this State where a railroad company owns a right of way on and over lands and not a fee simple title to the lands, the right of way being in the nature of "real estate," may be leased or sold by the railroad company when "not necessary for its use," where the ultimate fee title is held by private parties, and such lease or sale does not violate applicable law or property rights.

As the law now stands in Florida if a railroad company conveys the land on which its right of way exists, without express exceptions or reservations as to a right of way, the grantee in law takes the estate conveyed subject to the railroad company's right of way that is in use as such by the railroad company or that is reserved for railroad use by appropriate evidences upon the ground or upon the public records that afford notice to purchasers of the land. See Seaboard Air Line Ry. Co. v. McRainey, 69 Fla. 462,68 South Rep. 753; Van Ness v. Royal Phosphate Co., 60 Fla. 284,53 South. Rep. 381. The statutes do not expressly or by implication reserve or preserve a right of way "two hundred feet in width" to or for any railroad company, where such company owns both the right of way and the ultimate fee title to the lands thereunder, or where another party owns the fee title to the lands and the railroad company owns a right of way over such lands. The right of alienation is an incident to ownership and the only limitation of the right of alienation imposed by the statute upon a railroad company is that it shall not sell or lease "any lands or real estate" owned by it that are "necessary for its use." The provision of the statute that "real estate received by voluntary grant shall be held and used for purposes of such grant only," forbids the holding and use of such granted real estate for other than railroad purposes as contemplated by the "voluntary grant."

The liberality of the State in making grants of lands and rights of way to railroad companies, and the provisions of the statute (Chapter 610, Laws of Florida) relative to the construction and maintenance of railroads upon granted rights of way, and the exemptions and privileges (not now in force) favorable to the railroad companies, do not affect the right of alienation that a railroad company has under the law, particularly as there are no express restrictions upon the general right of alienation, and the statute (Section 4354, Revised General Statutes) expressly authorizes any railroad company to "sell, lease or buy any lands or real estate not necessary for its use." The public have no immediate interest in a railroad right of way that is not needed for the public utility purposes.

Where the sovereign grants to a railroad company a right of way through the public lands whether the right of way be regarded as an easement or as a limited fee subject to reverter, the ultimate fee title to the lands remains in the sovereign and the company cannot alienate the right of way without the consent of the sovereign. St. Joseph Denver City R. Co. v. Baldwin, 103 U.S. 426; Chapter 5595, Laws of Florida, 1905. If the sovereign subsequently grants or conveys to another party the ultimate fee title to the lands on which the right of way exists, such subsequent grant or conveyance is subject to the rights of the railroad company in the granted right of way. Northern Pac. R. Co. v. Townsend, 190 U.S. 267,23 Sup. Ct. Rep. 671; Great Northern R. Co. v. Steinke,261 U.S. 119, 43 Sup. Ct. Rep. 316; Stalker v. Oregon Short Line R. Co., 225 U.S. 142, 32 Sup. Ct. Rep. 636; Stuart v. Union Pac. R. Co., 227 U.S. 342, 33 Sup. Ct. Rep. 338. See also 25 Fla. 917.

If the sovereign subsequently relinquishes the fee title to the company having the right of way, it may alienate the land except in so far as the controlling law limits the right of alienation, which limitation under the quoted Federal law covers the right of way within a stated number of feet on each side of the center of the main track of the railroad.33 Stats. 538c, 1792; Northern Pac. R. Co. v. Ely, 197 U.S. 1,25 Sup. Ct. Rep. 302; Part 1, 37 U.S. Stats. at Large, p. 138, Chap. 181; Union Pac. R. Co. v. Laramie Stock Yards Co.,231 U.S. 190, 34 Sup. Ct. Rep. 101.

Under the Florida law the restriction upon the right of alienation of a railroad company is confined to lands and real estate that is "necessary for the construction and maintenance of its road," or "not necessary for its use." Sec. 4354, Rev. Gen. Stats. 1920, 69 Fla. 462.

Where a railroad company owns and conveys the land on which its right of way exists, the grantee takes subject to the right of way. Seaboard Air Line Ry. v. McRainey, 69 Fla. 462,68 South. Rep. 753.

The opinion of the court is applicable to cases where the sovereign (State or Federal) has granted to a railroad company a right of way through the public domain, the ultimate fee title to the land remaining in the sovereign. See Chapter 5595, Laws of Florida, 1905. See also Northern Pac. R. Co. v. Townsend, 190 U.S. 267, 23 Sup. Ct. Rep. 671, and other similar cases for Federal decisions on a Federal grant of right of way; and see Central Pac. R. Co. v. Droge, 171 Cal. 32,151 Pac. Rep. 663; Oregon Short Line R. Co. v. Quigley, 10 Idaho 770,80 Pac. Rep. 401, for instances of State decisions on such Federal grants. But the rule announced by the court does not apply where an Act of Congress permits the sale and adverse possession of portions of a federal granted right of way within stated limits "the same as would have been legal or valid if the land had been held under absolute or fee simple title." Chapter 1782, 33 U.S. Stats. at Large, p. 538, Act of April 28, 1904; Chap. 181, 37 U.S. Stats. at Large, Part 1, June 24, 1912; Northern Pac. R. Co. v. Ely, 197, U.S. 1, 25 Sup. Ct. Rep. 302; Union Pac. R. Co. v. Laramie Stock Yards Co.,231 U.S. 190, 34 Sup. Ct. Rep. 101; Northern Pac. R. Co. v. Concannon, 239 U.S. 382, 36 Sup. Ct. Rep. 156; Northern Pac. R. Co. v. City of Spokane, 45 Wn. 229, 88 Pac. Rep. 135. Certainly such rules should not be applied where the State grants the right of way and subsequently conveys the legal title to the railroad company without limitation upon the right of alienation, and the statute expressly authorizes the railroad company to sell any land or real estate not necessary for its use. Seaboard Air Line Ry. v. McRainey, 69 Fla. 462,68 South. Rep. 753.

In this case the railroad company was granted a right of way through State lands and subsequently pursuant to a legislative grant, the State conveyed to the company the fee title of the right of way lands. The answer avers in effect that the company conveyed some of the lands it held in fee simple title that are covered by the right of way, without reserving the right of way, and that the only right of way owned by the company over the lands so conveyed by the company without reservations is that area in use or indicated as reserved for railroad use, and that the locus in quo is not within the company's right of way. These averments certainly are pertinent to the issue of complainant's title or right to the locus in quo, since under the laws of Florida any lands owned by the company in fee simple that are "not necessary for its use" for the public service being rendered, may be sold and conveyed by the company. There was no error in denying the motion to strike the averments last above referred to, even though there be error in denying the motion to strike other designated portions of the answer.