Page:North Dakota Reports (vol. 2).pdf/76

 defendant. This motion was granted, and a verdict returned accordingly. If this ruling can be sustained on any ground assigned, the judgment must be affirmed.

The first ground is not seriously urged in this court, and indeed could not be. The point might be material on the question of damages, but it furnished no ground for refusing plaintiff possession. Ejectment always lies against the party in possession. Nor did the fact that plaintiff, pending the action, transferred the land to a third party, entitle defendant to a verdict on all the issues. We do not pass upon plaintiff's right to a judgment for possession, under the facts disclosed by the evidence upon this point; but § 5454 of the Compiled Laws provides that where the plaintiff shows a right to recover at the time the action was commenced, but such right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and plaintiff may recover damages for withholding the property. In this court, however, respondent's chief contention is that the ruling must be sustained on the third ground presented in the motion; on the theory that defendant's title to this right of way did not pass from it by the deeds executed to plaintiff's grantors, but was reserved and excepted by the language already quoted. In passing upon this point we shall not stop to consider respondent's power under its charter to build or operate branch lines, nor plaintiff's right to question that power. Neither need we define the exact estate excepted or reserved by the language used, nor decide whether or not such exception or reservation would in any event be void for uncertainty. These questions were ably discussed by the eminent counsel representing the respective parties, but, in our view, the solution is not involved in the decision of this case. It appears from the evidence that prior to the construction of the James River Valley Railroad, the main line of defendant's road had been located, and was being operated, over and across this same quarter section of land; and, while it perhaps does not appear in evidence, yet it is conceded by counsel that it was so located and operated prior to and at the time of the execution of the conveyances from defendant to plaintiff's grantors. We concede,