Page:North Dakota Reports (vol. 2).pdf/78

 defendant. As long as the James River Valley Railroad Company remained in possession of this road defendant had no interest whatever in this right of way. It has never located any branch of its line thereon. If it now has any interest in such right of way it is by reason of the receipt by it of a lease from the James River Valley Railroad Company, and not by reason of the existence of the one condition prescribed in the reservation. There is a clear and well defined distinction between a line of road that is in fact a branch of a main line and a road that is simply operated as a branch; all the difference that exists between absolute ownership and a right to use for a limited time, under certain restrictions. Again, suppose that defendant should default in the payment of the interest on the bonds of the James River Valley Railroad, in accordance with the terms of the lease, and the lease should be for that reason cancelled, and the 1oad returned to the control and possession of the James River Valley Railroad Company. Would this defendant still hold the title to this right of way? Certainly not. Yet where is the conveyance or decree that divested it? If the cancellation of the lease terminates all of defendant's interest in this right of way, is it not absolutely certain that whatever interest it has is dependent upon the lease, and not upon this reservation?

This case turns largely upon a question of construction, and it is clear to us that the learned trial court entertained an erroneous view of the scope and effect of that reservation. What we have said fully disposes of the fourth ground of the motion for verdict. It must be noticed that plaintiff's right to maintain ejectment, under the facts in this case, is not challenged, and hence not passed upon. The judgment of the district court is reversed, and case remanded for trial de novo. All concur.