Page:North Dakota Reports (vol. 2).pdf/75

 tion of damages. The conveyances by defendant through which plaintiff claimed title contained, immediately after the granting clause, the following language: "Reserving and excepting therefrom, however, & strip of land extending through the same (or s0 much of said strip of land as may be within said described premises), of the width of four hundred feet-that is, two hundred 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 or other railroad purposes, in case the line of said railroad, or any of its branches, has been or shall be located on or over or within less than two hundred feet of said described premises." The strip claimed was shown to extend diagonally across said quarter section, and was used by defendant, as appears from its testimony, as a right of way for what is known as the "James River Valley Branch" of the Northern Pacific Railroad. Defendant's evidence showed that this road was originally constructed by a distinct and separate corporation- the James River Valley Railroad Company-and after its completion it was leased by said last-named company to defendant for a term of 999 years, for the annual rental of one dollar, and the payment of the annual interest on the outstanding bonds of the James River Valley Railroad, and since December, 1885, defendant has been in possession of and was operating said road as a branch of the Northern Pacific Railroad. It also appeared that after the commencement of this action plaintiff conveyed the quarter section to his wife, and the wife reconveyed to plaintiff, and delivered the deed during the progress of the trial. There is no claim that the James River Valley Railroad Company ever took any steps to secure title to a right of way across said tract. When the testimony was closed, defendant moved the court to direct a verdict for defendant on the following grounds: First, because the evidence showed that defendant did not construct the line of road in question over plaintiff's land; second, because prior to the trial plaintiff had conveyed his interest in the land to a third party; third, because it appeared that plaintiff had no title to the particular land of which he sought to gain possession; and, fourth, because the evidence was insufficient to justify any verdict against