This is an action wherein plaintiff sought to condemn for highway purposes two parcels of respondent’s property in the city of Tulare. Interests of the defendants were also sought to be condemned. Their cases were evidently tried separately. Hereafter we will refer to the Southern Pacific Railroad Company as the defendant.

The pleadings, findings and judgment designated the tracts of land of defendant to be taken for public use, as “parcel No. 1, first’’, and “parcel No. 1, second’’. We will use these designations in this opinion. The trial court fixed the value of parcel- No. 1, first, at $8,000, and the value of parcel No. 1, second, at $2,500. No severance damages were allowed. Judgment was entered accordingly and plaintiff has appealed.

The case presents features new to the courts of California. Its decision rests on the source of defendant’s title to the parcels and the exact title that it holds. Plaintiff insists that defendant gained title through section two (and section eighteen) of an act of congress approved July 27, 1866 (14 U. S. Stat. 292), and has something in the nature of an easement giving it the right of use only. Defendant maintains with equal confidence that it acquired title under sections three and eighteen of the act and holds the property in fee simple.

On this question the trial court found as follows:

Section two of the act in question provides in part as follows :

The pertinent provisions of section three of the act are as follows:

Section eighteen of the act provides as follows:

It is intimated in some federal cases that a railroad company acquiring title to its right of way in limited fee, under the various railroad aid acts of congress cannot alienate a lateral portion of such’right of way for highway purposes without the consent of the federal government; Such consent has been given to an acquisition for highway purposes such as we have before us. (Act of Congress, approved May 25, 1920, 41 U. S. Stat. 621, 43 U. S. C. A. 913; Act of Congress, approved Nov. 9, 1921, 42 U. S. Stat. 212, 23 U. S. C. A. 17.)

We shall have occasion to refer briefly to a certified copy of a map of a portion of defendant’s roadbed southerly from Goshen Junction, through the city of Tulare, in Tulare County. The original is on file in the general land office in Washington, D. C. This court denied plaintiff’s motion for diminution of the record by the addition of this certified copy of the map (People v. Southern Pac. R. Co., 23 Cal. App. (2d) 200 [ 72 Pac. (2d) 254 ]) for the reason that it was never made a part of the record in the trial court. However, we are permitted to take judicial notice of its contents (Sh eehan v. Vedder, 108 Cal. App. 419 [ 292 Pac. 175 ]), even though we could not permit it to become a part of the formal record.

This map was prepared in 1872. We cannot determine the exact date it was filed in the land office. The patent to sections three and eleven in township 20 south, range 24 east, Mt. Diablo Base and Meridian, in Tulare County, conveying that property to the defendant was executed on March 13, 1874. All of parcel No. 1 first is in section eleven and the majority of parcel No. 1 second is in section three. A small triangular-shaped piece of parcel No. 1 second is in section two, in the same township, range, and county. Defendant proved no title to this last-mentioned land unless it acquired is under sections two and eighteen of the act of congress approved July 27, 1866.

It is not questioned that defendant completed the construction of its railroad through Tulare. It probably filed its location map in 1872. The railroad ran through sections three and eleven to which defendant received its patent in 1874. The grant to its right of way and station grounds, by virtue of the act of congress, therefore antedated its patent to the odd-numbered sections.

An almost exactly similar factual situation is found in the case of H. A. & L. D. Holland, Co. v. Northern Pac. Ry. Co., 214 Fed. 920 . The Northern Pacific Railway Company constructed its railroad under the provisions of the Northern Pacific Land Grant Act of July 2, 1864. (13 U. S. Stat. 365.) Sections two and three of that act are practically identical with the same numbered sections of the act of July 27, 1866, except that the Northern Pacific Railway Company was given a right of way four hundred feet wide, and defendant here was given a right of way two hundred feet wide. The railroad ran through section seventeen, to which the railway company subsequently received a patent. One of the important questions decided in that case is whether the right of way was held under section two of the act of congress in an estate less than fee, or under the patent in fee. In holding that the title to the right of way was held under section two of the act of congress in an estate less than fee (the court calls it an easement) and not in fee under the patent, the court said:

The nature of the title to a railroad right of way acquired under section two of the act of congress of July 2, 1864, supra, was before the Supreme Court of the United States in the case of Northern Pac. Ry. Co. v. Townsend, 190 U. S. 267 [23 Sup. Ct. 671, 47 L. Ed. 1044 ], where it was said:

From the foregoing authorities we conclude that defendant acquired title to its right of way and station grounds in the city of Tulare under section two of the act of congress of July 27, 1866; that its title was of “limited fee, made on an implied condition of reverter”; that the subsequent patent to the two odd-numbered sections added nothing to the estate it held in the right of way and station grounds. In other words, the effect of the patent would have been the same had it expressly reserved the right of way and station grounds, or so much of them as were in the two sections, from the property granted. It is also clear that the land described in the patent, not within the right of way and station grounds, was held by defendant in fee simple with all the rights of private ownership.

It is clear that the same property cannot be held in fee simple and in limited fee by the same owner at the same time. The right of way and station grounds were held under the congressional grant contained in section two of the act of July 27, 1866. The balance of the odd-numbered sections was held in fee simple under the patent. It follows that the finding which we have quoted, numbered “IV”, and which in effect finds that both of the properties are held by defendant under the patent and also under the congressional grant cannot be supported. The finding is inconsistent, conflicting, and contrary to law.

About the only evidence in the record concerning the boundaries of the station grounds was given by a witness for defendant, who testified as follows:

From the foregoing, and from the maps before us, it appears that the station grounds in the city of Tulare extend in a general northwesterly direction from the southern to the northern city limits; that such grounds were four hundred and forty feet in width and are bounded on the east by the west line of “J” Street and on the west by the east line of “I” Street.

The maps introduced by both parties show that all of parcel No. 1 first is outside of the station grounds, and all of parcel No. 1 second is within those grounds. Prom what we have already said, it follows that all of parcel No. 1 first was owned in fee by defendant, and all of parcel No. 1 second was owned in limited fee with an implied condition of reverter.

The only statement in the record in any manner conflicting with this conclusion is the following:

It should be observed that the statement is very indefinite as to the time the property was used for shops, presumably railroad shops. The ease was tried in June, 1936. “Many years ago” might have referred to a date forty or even fifty or more years before that date. When we refer to the certified copy of the map of 1872 from the United States land office, which plaintiff produced and asked us to consider, we find that the improvements on the station grounds are set forth in considerable detail. We find no reference to any shops, or railroad shops. This map was the foundation of defendant’s title to its station grounds to which it acquired title in limited fee with an implied covenant of reverter. Becord title in fee to the balance of the odd-numbered sections was acquired under the patent. If defendant subsequently used a portion of the property it owned in fee for railroad shops, such use would not affect its fee title to the land so used. The grant in the patent was absolute in so far as the questions here presented are concerned. A fee title once vested could not be reduced to a limited fee by a subsequent user. The patent did not so provide.

The trial court found that the reasonable market value of the property taken by the improvement described as parcel No. 1 first was $8,000. This finding is supported by evidence and need not be disturbed as that property was owned in fee simple by defendant.

A different situation exists as to parcel No. 1 second. The trial court found that the reasonable market value of this property was $2,500 and awarded that sum for that property taken by the public improvement. The court used the wrong measure in fixing the compensation to be paid defendant for the property in parcel No. 1 second, as defendant did not own that property in fee and it was only entitled to compensation for the damage which the use of the property taken by plaintiff would cause to the right of use by defendant. This question was before the court in City of Los Angeles v. Allen, 32 Cal. App. 553 [ 163 Pac. 697 ], where it was said:

It follows that the portion of the findings which fixed the market value of $2,500 for the taking of parcel No. 1 second cannot be sustained. The case must be retried as to that question, evidence based on the proper measure of damage as to that parcel must be received, proper additional findings must be made as to that damage, and judgment to include the award already made for parcel No. 1 first must be entered accordingly.

To escape the foregoing conclusion as to parcel No. 1 first, and to secure a general reversal of the judgment and a retrial of all the issues, plaintiff calls our attention to that portion of the answer which pleads defendant’s title to both parcels as acquired under section eighteen (and section two) of the act of congress of July 27, 1866, and that both parcels are part of its right of way and station grounds. It urges that, with this admission in its answer, defendant cannot assert any greater title to either parcel than it acquired under sections two and eighteen of the act of congress. While there is such an allegation in the answer there is also an allegation that defendant held title to both parcels in fee simple.

There is no rule of pleading more firmly established than the one permitting a defendant to set up inconsistent defenses. In 21 California Jurisprudence, page 134, it is said:

It is therefore ordered: (1) That finding number four, heretofore quoted, be stricken from the findings of fact and in lieu thereof the following finding of fact substituted:

(2) The following is stricken from finding of fact number VIII:

(3) The judgment is reversed with directions to the trial court to:

Barnard, P. J., and Jennings, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on May 11, 1938.