Page:North Dakota Reports (vol. 2).pdf/72

 WILLIAM H. DUNSTAN, Plaintiff and Appellant, v. NORTHERN PACIFIC RAILROAD COMPANY, Defendant and Respondent.

Damages in Ejectment-Reservation in Deed-Railroad Right of Way.

1. In an action of ejectment, and to recover damages for withholding the property, where it appears that plaintiff has conveyed the land pending the litigation, he is still, under § 5454 of the Compiled Laws, entitled to judgment for whatever damages the evidence may establish.

2. Where the Northern Pacific Railroad Company conveyed a portion of the land granted to it by congress to a private person, "reserving and excepting therefrom, however, a strip extending through the same * * * of the width of 400 feet-that is, 200 feet on each side of the center line of the Northern Pacific Railroad, or any of its branches-to be used for right of way, * * * in case the line of said railroad or any of its branches, has been or shall be located on or over one such strip only, and that the railroad company could not claim a right of way, both for its main line and a branch line, over the tract so conveyed under such reservation.
 * * * said described premises," held, that such reservation covered

3. Held, further, that where a separate corporation entered upon and located and constructed a line of railroad across said tract, and subsequently leased the same to the Northern Pacific Railroad Company, which latter company operated the same as a branch of its main line, that, whatever interest in or right to the right of way of such road the latter company had, it obtained and held under its lease, and not under the reservation.

(Opinion Filed June 17, 1891. Re-hearing Denied Aug. 21, 1891.)

APPEAL from district court, Stutsman county. Hon. RoDERICK ROSE, Judge.

S. L. Glaspell, for appellant. John S. Watson and W. F. Ball, for respondent.

Action in ejectment and for damages for witholdingwithholding [sic] the property. Judgment for plaintiff. Defendant appeals. Reversed and new trial ordered.

S. L. Glaspell for appellant:

The defendant is not permitted by its charter to construct branch lines, and unless power to build them is