Hyatt

—The questions involved in this appeal are,—1. Whether a railroad right of way is such a public use as to prevent the running of the statute óf limitations, or the acquisition of an adverse title thereto by prescription; 2. In case of intrusion upon such right of way, is ejectment the proper remedy?

Respondent Hyatt entered upon, and occupied for more than five years prior to the commencement of the action, a portion of the right of way, in Placer County, granted to the Central Pacific Railroad Company by the act of Congress of July 1, 1862. (12 TJ.S. Stats, at Large, p. 489.) The court finds that prior to 1867 the predecessor of the plaintiff constructed its fine of railroad over said right of way, and plaintiff and its predecessor have ever since maintained its railroad over said right of way; that the defendant Hyatt has been in the open, notorious, and exclusive possession and occupancy of the property described in the complaint, for more than five years previous to the commencement of the action, and has paid taxes thereon, and defendant Savage was the tenant of said Hyatt, but that plaintiff, during said time, has also paid all taxes levied and assessed upon' said right of…