Fresno Street Railroad v. Southern Pacific Railroad

This is an action of ejectment, brought to recover a portion of the right of way claimed by the plaintiff, lying upon Tulare Avenue, a highway in Fresno County. Verdict and judgment went for the plaintiff in the court below, and this appeal is from the judgment and from an order denying defendants’ motion for a new trial. The appellants make two points on the appeal: 1. That the action of ejectment is not maintainable for the sort of injury here involved; *203 and 2. That the action of ejectment could not be maintained in this case because of the consent or acquiescence of respondent in the construction of the San Joaquin Valley road, the predecessor in interest of defendants and appellants, over a portion of the right of way in question.

It is not questioned on the part of the appellants that there is a class of cases wherein an action will lie for the recovery of a right of way, but it is claimed that in all such cases there is an exclusive right of possession in the body politic, corporation, or person seeking to enforce such a remedy; as, for instance, a city or other municipal body may maintain ejectment for the recovery of a street or park, and a county, to recover a public…