#### Webster et al. *v.*The Pittsburg, Cleveland & Toledo Railroad Company.

*Action for ejectment or to compel appropriation of property*— Sec*tion 6448, Revised Statutes*— Statutes *of limitations*— Does *not begin to run against reversioner or remainderman*— Until *death of life tenant.*

1. As the right of entry and immediate possession is essential to recovery in an action of ejectment, the statute of limitations does not start to run until the right of entry and possession accrues; and where the real estate is in the possession of a life tenant, such 'statute does not begin to run against the reversioner or remainderman until the death of the life tenant, or until his life estate be otherwise terminated.

2. No possssion can be deemed adverse to a party who has not at the time the right of entry and possession.

3. W, a married woman, died in 1872, seized in fee simple of certain real estate, leaving a husband surviving her, and several children, who are her heirs at law. The husband took an estate by curtesy. In the year 1882, the P. C. & T. railroad company, without proceeding to appropriate the right to do so, and without any contract with the owners or any of them, took possession of the premises and constructed its railroad thereon and thereover, and has ever since held possession without title. The life tenant died in 1892, and the heirs commenced this case in the probate court under Section 6448, Revised Statutes, August 14, 1904.

*Held:*That the action was not barred by the twenty-one year statute of limitations, and that the statutory bar did not begin to run until the death of the life tenant.

(No. 10447

Decided March 24, 1908.)

Error to the Circuit Court of Trumbull county.

*88The plaintiffs in error are the heirs at law of Elizabeth Webster, who owned the premises concerned in this suit. She died intestate in 1872, leaving a husband, Alfred Webster, who took a life estate by curtesy in all the lands of which his wife died seized. He died in 1892, not having conveyed any part of his said estate to any person or corporation.

In the year 1882, and during the life of Alfred Webster, the life tenant, the defendant in error entered upon and took possession of said lands and constructed its railroad thereon, and has ever since been occupying the same with its roadbed and track and operating trains thereover, and has continuously occupied and possessed said premises for a railroad ever since it first took possession thereof, without having appropriated the right to occupy the same and without any contract with the owner for that purpose or. to that effect.

In August, 1904, the plaintiffs in error filed in the probate court of Trumbull county their petition under favor of the provisions of Section 6448, Revised Statutes, to compel appropriation by the railroad company. The petition contains the allegations made requisite by said section.

The railroad company answered, admitting its possession of the premises as alleged, and averred that it had been in open, notorious, continuous and adverse possession of said premises so taken, under a claim of right and title for more than twenty-one years prior to the filing of said petition; and it was admitted in the answer that said company had been operating a line of railroad over *89the land described. Other averments of the petition were denied.

For further defense the company set up a tax title which accrued as the result of a delinquent tax sale made by the treasurer of Trumbull county in January, 1879, and that said land not being redeemed, was subsequently conveyed by the auditor to the purchasers and that the railroad company held title under said sale and conveyances. The tax title was attacked by reply, but nothing is claimed for it in this court as it is no longer an issue between the parties.

Trial was had to a jury in the probate court and a verdict for $800 was returned. Motion for new trial was overruled and judgment rendered on the verdict. The case was taken by the railroad company on error to the court of common pleas where the judgment of the probate court was reversed and the petition dismissed. The plaintiff in error prosecuted error in the circuit court where the judgment of the court of common pleas was affirmed. The case is here on error to reverse the judgments of the circuit and common pleas courts. Further questions in the case are stated in the opinion.

*Messrs. Moore & Craver; Mr. John Schlarh*and *Mr Charles Koonce, Jr.,*for plaintiffs in error.

The delinquent tax list under which the property was sold had not attached thereto the sworn certificate of the treasurer or his deputies as provided by Section 1043, Revised Statutes. *Skin*
      *90
      *ner*v. *Brown,*17 Ohio St., 33; *Stambaugh*v. *Carlin,*35 Ohio St., 209.

The two lots were not valued as separate tracts in accordance with Section 2729, Revised Statutes. There was no copy of the published notice of tax sale inserted at the foot of the record, or elsewhere on the record as required by Section 2867, Revised Statutes. *Magruder*v. *Esmay,*35 Ohio St., 221.

The plaintiffs in error contend that the statute of limitation did not begin to run against them until the death of the life tenant in 1892; that the action to compel appropriation is but a substitute for an action in ejectment; and that since, in ejectment, the statute does not begin to. run against a reversioner until the death of the life tenant, and is not barred until twenty-one years have elapsed from his death and the commencement of the paramount estate, so here the plaintiffs would not be precluded from prosecuting an action under Section 6448, Revised Statutes, until twenty-one years had elapsed after the death of the life tenant.

In this jurisdiction the rule is too well established to ’admit of discussion that the statute of limitations does not begin to run against the remainderman or reversioner, in favor of a trespasser, or one claiming under the life tenant, until the death of the life tenant. *Holt et al.*v. *Lamb et al.,*17 Ohio St., 374; *Carpenter*v. *Denoon,*29 Ohio St., 379; *Koltenbrock*v. *Cracraft,*36 Ohio St., 584.

It is equally well .settled in Ohio that the right .to prosecute ejectment against a railroad company (unless the owner has been by his own acts *91estopped from prosecuting such action) exists for twenty-one years from and. after the commencement of the adverse possession by the railroad; and that the remedy to compel the appropriation of the property exists for a like time, and is governed by the same statute of limitation. *Railroad Co.*v. *O’Harra,*48 Ohio St., 343; *Railroad Co.*v. *Perkins,*49 Ohio St., 326; *Fries*v. *Railway Co., 56*Ohio St, 135.

If, as was held in the cases cited, the remedy pursued in this case is governed by a statute prescribing a limitation upon the commencement of actions to recover possession of real estate, how can it logically be said that the statute would commence to run in such action against the reversioner until he was entitled to demand possession of such property.

Where a railroad company during the continuance of the life tenancy takes possession of the estate, either by conveyance from the life tenant or otherwise, and constructs its public railroad thereon, the statute of limitations does not begin to run against the remainderman or reversioner until the death of the life tenant, and the right of action of the owner of such dominant estate is not barred-until twenty-one years after the termination of the life tenancy. *Hope*v. *Railroad Co.,*79 Va., 283; *Railway Co.*v. *Reynolds,*69 S. Car., 481, 48 S. E. Rep., 476; *Railroad Co*v. *Vaughn,*206 Ill., 234, 69 N. E. Rep., 113.

*92
      *Messrs. Arrel, Wilson & Harrington,*for defendant in error.

It is clear that the life tenant could not maintain an action to recover compensation for damages done by a stranger to the reversion or inheritance, because he has no interest therein. How can possession or the right thereto be material to the maintenance of an action to recover for injuries done to the reversion or inheritance? Again, the action had no relation whatever, to either possession, or the right thereof. A reversioner may maintain a suit in equity to enjoin the life tenant from committing waste on the land, and this being so, may he not maintain a like suit to enjoin a stranger from committing acts materially and substantially injurious to his reversion or inheritance? If a stranger to both the reversioner and the life tenant should enter upon the land and do wrongful acts, he surely might be enjoined in a suit in equity brought for that purpose by the reversioner in the one case, and in the other, would be subject to .an action at law, brought by the reversioner to recover compensation for the injuries done to the reversion or inheritance. Against such stranger the life tenant might maintain a suit in equity to enjoin the wrongful acts, or if the acts were completed, he might maintain an action at law to recover compensation, provided the wrongful acts of the stranger injured in any wise materially and substantially his estate in the land. What reason exists for postponing the right of the reversioner to bring such suit or such action until the determination of the life tenant’s estate in the land?

The court, we think, on examination, will find *93ample support for the above proposition in the following authorities: *Jordan*v. *Benwood, 57*Am. St. Rep., 859, 42 W. Va., 312; *Bass*v. *Railroad Co.,*39 L. R. A., 711; *Allen*v. *DeGroodt,*14 Am. St. Rep., 626; *Tinsman*v. *Railroad Co.,*1 Dutch., 255, 64 Am. Dec., 415, 26 N. J. L., 148; *Railroad Co.*v. *Boyer,*13 Pa. St., 497; 3 Sutherland on Damages, 392; *Dutro*v. *Wilson,*4 Ohio St., 101; *Gorrill*v. *Railway Co.,*4 O. C. C., 398; *Railroad Co.*v. *Williams,*35 Ohio St., 168; *McAllister*v. *Hartsell,*60 Ohio St., 69; *Gluck*v. *Mayor of Baltimore,*48 Am. St. Rep., 515; *Lessee of Thompson’s Heirs*v. *Green, 4*Ohio St., 216; 24 Am. & Eng. Ency. Law, (2 ed.), 391 *Arneson*v. *Spawn,*39 Am. St. Rep., 783.

Price, J.

The plaintiffs in error are the children and heirs at law of Elizabeth Webster, who died in the year 1872 seized in fee'simple of the lands involved in this proceeding. Alfred Webster, her husband, survived her, and under the statute then in operation, he became a tenant for life by curtesy in the entire premises. Pie died in the year 1892 and his life estate terminated. It was then that these heirs came into their own, and were entitled to enter upon and take possession of the estate in fee. Until the termination of the life estate no right of entry existed in the heirs, for the tenant by curtesy was entitled to possession and full control of the premises, barring ■ waste and other acts which might work a forfeiture of his estate, and the general rule is, that no cause of action accrues to the remainderman until the death of the life tenant, or other termination of the precedent *94particular estate, and as a right of immediate possession is an indispensable requisite to maintaining an action of ejectment, it follows that-suit cannot be brought by the owner of the remainder so long as the precedent estate exists.

This rule is recognized in *Holt et al.*v. *Lamb et al., 17*Ohio St., 374; *Carpenter*v. *Denoon et al.,*29 Ohio St., 379; *Koltenbrock*v. *Cracraft,*36 Ohio St., 584. This doctrine becomes important in this case, because when the heirs gained the right of entry by • the death of their father, the life tenant, the railroad company was in possession of that part of the lands now in controversy with a railroad fully constructed and in operation thereover, and its possession began in the year 1882, ten years before the termination of the life estate, and has been continuous since that to the present time. It did not obtain possession by appropriation proceedings under the statute, nor does it claim it by virtue of any contract with the life tenant or any of the remaindermen. The proceeding now under review was commenced in the probate court on the 16th day of August, 1904, about twelve years after the death of the tenant by curtesy, and hence the' period of the statute of limitations against an action of ejectment by the heirs has not run.

It follows, that until the period has fully run, the railroad company has been and is now wrongfully in possession. The only color of title asserted aside from the statute of limitations, is title acquired under a void tax sale, under which it is not now claimed the company holds any valid title. The tax title, according to the pleadings, *95resulted from the delinquency of the life tenant in not paying the taxes charged against the premises, — a duty made incumbent on him by the statute, and such delinquency did not forfeit the estate of the remaindermen. See the cases above cited. Other substantial facts preceded and attended the tax sale which made the sale invalid, and as no reliance is now placed upon it, we will not pursue that subject further.

That out of the way, we see that the railroad company had no title when it took possession, and had none when the action was commenced in the probate court as against the heirs, for not until the last hour of the twenty-one years of limitation has run, could a plea of such statute defeat a recovery by them in an action of ejectment. The execution of the judgment against an established railroad is for later consideration.

But it is said the case under consideration is not an action of ejectment, but one under Section 6448, Revised Statutes, to compel appropriation by the company, and such is the character of the suit. With this assertion goes the statement, that the heirs though out of possession and also out of any right of possession until the death of the life tenant, could have instituted the suit under consideration at any time after the railroad company wrongfully took possession in 1882, and therefore the statute of limitations had fully run when the present action was commenced — August 16, 1904. This position means, that if the heirs had brought ejectment, the plea of the statute would not be good, but if they elected to resort to the remedy afforded by Section 6448, *supra,*
      *96the statute applies. It is further argued, that the remaindermen could have enjoined the railroad company from constructing its road on the premises just as they could have enjoined cutting timber or otherwise committing waste by the life tenant or a stranger. We cannot assent to the broad statement. Circumstances might have existed and the situation of the parties might have been such that a court would decline to enjoin. The life tenant may have colluded with the railroad company so that it gained possession. But injunction is a preventive remedy and its omission does not waive or condone the trespass when committed. It is not good argument here to say that because the heirs were silent and did not endeavor to prevent the company from taking possession and building the road, that they have lost their estate or right to reclaim it. Authorities hereafter cited or quoted refute the proposition.

And as to the other point, that they could have brought suit to compel appropriation under Section 6448, without waiting the termination of the life estate, we remark, that strictly speaking, the possession of the railroad company was not adverse to the heirs, but adverse to the life tenant while he lived.

Besides, it is said that the remedy provided by this section of the statute is a substitute for the right to recover possession and should be governed by the bar allowed in ejectment. *Railroad Co.*v. *O’Harra,*48 Ohio St., 353. The heirs being out of possession, owned not the fee, but the fee in remainder. They were not required to procure the joinder of the life tenant in a suit to compel *97appropriation. As before stated, the life tenant may have sold his permission of possession to the railroad company; or he may have colluded with it in some manner whereby it took possession. Without the united action of tenant and the heirs, the questions of appropriation could not have been fully settled. No obligation rested upon the heirs to convert the life tenant into a co-plaintiff in an action under the statute. They could rely on enforcing their rights when the door should be fully open for their relief.

It is said by Warvelle in his work on Ejectment, Section 452: “As a’ general rule of uniform observance, no possession of lands can be deemed ■ adverse to a party who has not, at the time, a right of entry and possession. For this reason a disseizin of a life tenant, or the owner of any particular estate, has no effect upon rights held in remainder or reversion. Such disseizin imposes no obligation upon the remainderman or reversioner to enter, nor will the statute commence to run against them until the termination of the particular estate, no matter how long the tenant thereof -may have been disseized.” The author cites *Devyr*v. *Schaefer et al.,*55 N. Y., 446; *Orthwein*v. *Thomas,*127 Ill., 554; *Wallingford*v. *Hearl,*15 Mass., 471; *Jackson*v. *Johnson,*5 Cowen (N. Y.), 96; *Sand*v. *Church,*152 N. Y., 174. In a note on p. 506 of Warvelle on Ejectment is an illustration and summary of *Orthwein*v. *Thomas, supra,*as follows: “Thus, children inheriting land from their mother, subject to their father’s rights as tenant by the curtesy, are not guilty of *laches*in remaining silent for more *98than thirty years, during which time their father was alive, and he and his grantees laid out and platted a town on such land and were in possession thereof; for such possession was lawful and consistent with the father’s estate, and neither the children nor the grantees had any right to disturb it.”

The railroad company was not disposed to move in proceedings to gain title and possession, and can it be heard to say that because the heirs kept silent until after the death of the life tenant, it will add the years of the life tenancy after the wrongful entry to the years since its termination in order to defeat the present remedy? Again we say, the possession of the company during the life tenancy was adverse to the tenant rather than to the remaindermen, and the time should not be so computed,' and it is of the very life of the statutory bar that the possession by the railroad company was, for twenty-one years next before suit, continuously and openly, *adverse*to the heirs. Such possession may have been open, notorious and continuous for the statutory period, yet if it was not also adverse, it availeth nothing. This is the counterpart of the first proposition discussed, namely, that the heirs not having a right of entry during the existence of the life estate, could not have brought ejectment against the company during that period.

We will reinforce the second proposition by noticing what was decided in the foregoing cases. In *Jackson*v. *Johnson,*5 Cowen, 75, it is held, “that the statute of limitations does not run ^against remaindermen or reversioners, during the *99continuance of the particular estate. It was aimed at those guilty of *laches*in omitting to enter, or bring actions, which cannot be said of remaindermen or reversioners, who have no right in law to do either.” In *Wallingford*v. *Hearl, supra,*the following is stated as the law of the case by Parker, C. J.: “The demandant’s right of entry accrued on the death of the tenant for life, and he had twenty years by the statute to preserve his estate by entry. He entered in fact within one year after his title accrued, that is after the termination of the life estate. It is said that he might have entered before in consequence of the disseizin of the tenant for life. If he might, the la^y imposed no obligation upon him to do so. He might be utterly ignorant of the disseizin, notwithstanding the visible occupation of the disseizor, for he might well suppose that the tenant had entered into a contract with her, who was seized of the freehold. It is settled in 'the case of *Wells*v. *Prince,*9 Mass., 508, that although the reversioner may enter before the death of the tenant for life, if she refuse to enter, yet that he may waive that right, and enter after her death * *

In *Devyr*v. *Schaefer et al., supra,*it is held on page 446: “No possession can be deemed adverse to a party who has- not at the time the right of entry and possession.” In *Orthwein*v. *Thomas et al., supra,*p. 555, it is held that, “until the death of the life tenant, no statute of limitations will begin to run against the remainderman, and *laches*will be imputed to him only from the time his right of entry accrues.” A like principle is laid down in *Sand*v. *Church, supra.*See also *Borders*
      *100v. *Hodges,*154 Ill., 498. See also *Carpenter*v. *Denoon et al.,*29 Ohio St., 379. These are authorities selected from many others of similar import which, as we think, establish the proposition that the possession of the railroad company did not become adverse to the rights and title of the plaintiffs in error until the death of the life tenant, their father, and that not until that time did. the statute of limitations begin to run against them; and we think that this rule must apply to the proceedings under review.

We may look at this case from another viewpoint. The railroad company took possession without contract and without appropriation. It is not claimed here that any owner of the estate even consented to the possession, and the company gained no advantage by the mere silence of the owners. It is said in *Railroad Co.*v. *Perkins,*49 Ohio St., 330, that “a man does not acquiesce in law by merely neglecting to assert his rights. No acquiescence in this sense affects his right of-action short of the period prescribed for its commencement.” And again, on page 332, it is said, “it 'is a mistake to say that by the wrongful entry of the company the right of the owner to his land is turned into a mere chose in action for the value of it.” The only obstacle to the remedy by ejectment lies in the efficacy of the ejectment writ, and not a denial of the right to its enforcement. In many, perhaps in most cases where railroad companies have constructed their railroads on lands of another without right, their occupation and the work constructed on the premises may be such that, while the company may *101be ejected, it would leave its property behind to plague the landowner. Besides, the interruption of public travel and business would be a serious consideration in ordering an ouster. So we have the provisions of Sections 6448 and 6449, Revised Statutes. The last clause of the latter section expressly provides, “this section shall not be construed to impair or lessen in any manner the right of the owner or owners * * * may have to proceed against the corporation as in all other cases of the unlawful entry upon lands.” Therefore, where the writ of ejectment may be impracticable for reasons above given, or others sufficient, the owner may select the remedy under the above .statute, as has been done in this case. And this court has held in *Railroad Co.*v. *O’Harr a,*48 Ohio St., 343, that proceedings to compel appropriation are not barred by lapse of less than twenty-one years from the time of such occupation' by the company. The period is not thus limited as against one who is a remainderman or a reversioner and has no right of entry or possession during the existence of a life estate. As already stated, as to such remaindermen or reversioners, the statute does' not start until the termination of the particular estate. On page 353 of above case, Minshall, J., says: “The remedy in such case is a substitute for an action to recover the possession, and we fail to perceive why it should be barred in any shorter period than an action for that purpose * * * .”

In *Fries*v. *Railway*Co., 56 Ohio St., 135, the same rule as to the .statutory bar is again asserted, as to proceedings to compel appropriation, and *102what we have said as to when the statute begins to run is here applicable also. These and other Ohio cases are not in conflict with the views expressed in this case, but are entirely consistent therewith.

There is another point raised by defendant in error. It is provided in Section 6448, *supra,*“such owner or owners or either of them * * * may serve notice in writing upon the corporation in the manner provided for the service of summons against a corporation, to proceed under this chapter to appropriate the lands, and on failure of such corporation for ten days so to proceed, said owner or owners * * * may file a petition in the probate court of the proper county setting forth the fact of such use or occupation by the corporation, that the corporation has no right, legal or equitable thereto * * * that the 'notice provided in this section has been duly served; that the limitation under the notice has elapsed, and such other facts,” etc. The petition contained all these statutory facts, but it is claimed that the plaintiffs failed to prove the service of the notice preliminary to filing their petition. The printed record is silent upon the subject. The notice, if one was served, is not brought into'the record before us, and it is argued that having failed to show the service of such notice the plaintiffs failed to make a case under the statute. Before deciding the question, it is well to see what the answer contains. The railroad company admits that it is a railroad corporation authorized to make appropriation of private property, and that it is in possession of the premises indicated, *103and avers that “it has been in open, notorious, continuous and adverse possession of said part of said lots, under a claim of right and title, for more than twenty-one years prior to the beginning of the above entitled action; admits that it has been operating a line of railroad over that part of said lots in its possession as aforesaid.”

The answer then proceeds to deny “each and every statement, allegation and averment in said amended petition contained, not herein expressly admitted to be true, and says that the same are false and untrue.”

Next, the company sets out in detail that the premises were sold at delinquent tax sale in January, 1879, and that in due time a deed was made to the purchaser for the lands so sold, and that the company holds under said tax deed, and in connection therewith again pleads the statute of limitations. The reply attacks the validity of the tax deed.

We do not believe that the failure to prove the service of the notice deprived the court of jurisdiction to proceed with the case, after the above issues had been joined. The point was not raised, as we can discover, at any stage of the trial.' When the plaintiffs rested their case, no mention was made of the absence of such proof, and the company proceeded and put in its evidence. The attention of neither court nor counsel was called to the absence of proof of the notice after the defendant rested. Nor was the court requested to instruct the jury upon the subject, and we think the point is too late in arrival to justify a reversal of the judgment of the probate court *104on that ground; Neither the circuit court nor the court of common pleas seems to have spoken or ruled on that question.

We conclude that the judgments of the circuit and common pleas courts should be and they are reversed; and the judgment of the probate court is affirmed.

*Judgment reversed.*

Shauck, C. J., Summers and Spear JJ., concur.