mere incident to the business itself, which is conceded to be lawful and carried on with ordinary care.

Respondent has referred us to the case of Stockdale v. Railroad, 28 Utah 201, 77 Pac. 849; but there is nothing said in that case which conflicts with or in fact is not in strict harmony with what we have said in this case; nor is there anything in Railroad Co. v. Board of Education, 32 Utah 305, 90 Pac. 565, 11 L. R. A. (N. S.) 645, which in any way affects any question which is involved in the case at bar. Under the circumstances disclosed by this record, therefore, we cannot see wherein the appellant has violated any duty or has disregarded or invaded any of respondent's rights. It was error therefore to give the instruction which we have quoted and to permit a recovery thereunder.

All the other assignments, except those relating to the admission of certain evidence, although numerous, are sufficiently covered by what we have said. The assignments relating to the admission of evidence, by reason of the conclusions reached, have become wholly immaterial because they cannot possibly arise in the same way upon a retrial of the case, if one be had.

For the reasons stated, the judgment is reversed, and the cause remanded, with directions to the district court to grant a new trial and to proceed with the case in accordance with the views herein expressed. Appellant to recover costs.

STRAUP, C. J., and MCCARTY, J., concur.

BROWN V. OREGON SHORT LINE RAILROAD

COMPANY.

No. 1943. Decided February 2, 1909. Rehearing Denied, July 7, 1909 (102 Pac. 740).

1. DEDICATION - ACTS CONSTITUTING DEDICATION CONVEYANCES. Plaintiff's intestate, owning two contiguous lots in a block, sold three parcels of land therein by metes and bounds, and thereafter executed a deed, in which he conveyed to the grantees, "and to their heirs and assigns forever, a right of way or easement" over a strip of land lying between the parcels sold "for an alleyway or street, said alleyway to be used for any and all purposes for which a street or alleyway is commonly used." The strip formed a pocket opening on a public highway. Held, that there was no dedication of the strip of land as a public highway. (Page 260.)

2. DEDICATION-INTENTION. Dedication rests primarily on intention, express or implied.1 (Page 262.)

3. BOUNDARIES - HIGHWAY AS BOUNDARY - STATUTORY PROVISION. Comp. Laws 1907, section 1120, providing that a transfer of land bounded by a highway passes title of the person whose estate is transferred to the center of the highway is declaratory of the common law, and has no application, where the recitals in a conveyance respecting a strip of land are such as to create a private as distinguished from a public easement. (Page 263.)

At com

4. BOUNDARIES-HIGHWAY AS BOUNDARY-TITLE TO FEE. mon law, where a grant is bounded by a public street or highway which is expressly referred to in the conveyance as such, the title passes to the grantee to the center of such street or highway if the grantor had the title, and, if the street or highway is vacated, the land reverts to the abutting owner, but the grantor may restrict his conveyance by apt words so as to reserve to himself the title to the land within the street or highway. (Page 263.)

5. EASEMENTS-TRANSFER OF RIGHT. Where a deed conveyed an easement in a strip of land to the owner of adjoining land and to his heirs and assigns forever, a railroad company that subsequently acquired by purchase and condemnation the

1 Whitesides v. Green, 13 Utah 341, 44 Pac. 1032, 57 Am. St. Rep. 740.

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property benefited by the easement was entitled to the same rights in the strip of land as the persons to whom the easement was granted. (Page 264.)

6. EASEMENTS-ABANDONMENT-SUSPENSION OF USE. A mere suspension of the use of an easement does not constitute an abandonment. (Page 264.)

7. EASEMENTS-ABANDONMENT.

Where an easement is granted over a strip of land to the owners of certain lots for the convenience of ingress and egress to and from a public street by the the occupants of the lot, and the land subsequently passes into the hands of a railroad company, and all the dwellings and other buildings are removed from the lots as well as the trees growing thereon and the lots and strip of land over which the easement extended are devoted to railroad uses, the easement is abandoned, and the title to the strip of land should be quieted in the owner relieved from the easement. (Page 265.)

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by James A. Brown, administrator of the estate of Elias Morris, deceased, against the Oregon Short Line Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

P. L. Williams, Geo. H. Smith, Jno. G. Willis and H. B. Thompson for appellant.

Hurd & Hurd for respondent.

APPELLANT'S POINTS.

The grant or reservation of a "way" or "road" without other words of description, carries an easement only, and not the fee in the soil. (Washburn on Easements [4 Ed.], p. 48, citing Jamaica Pond v. Chandler, 9 Allen (Mass.) 164; Graves v. Amoskeag Co., 44 N. H. 465; Leavitt v. Towle, 8 N. H. 97; Whitesides v. Green, 13 Utah 341.)

The grantee of a right of way is not the owner or occupant of the estate over which it is granted. The mere running of trains over a road does not make the company running them an occupant of the land. (10 Ency. of Law, p. 399, note 5; Rex v. Joliffe, 2 T. R. 90.) "A grant in terms of ‘a way' or of 'the privilege of a highway' does not convey the soil, or any corporeal interest in it." (Jones on Easements, sec. 208, citing Lowe v. Streeter, 66 N. H. 36, 20 Atl. Rep. 247.) "The grantee of such a right cannot prevent even a trespasser from using the land, if he does not impede the exercise of such right of way. A right of way is an easement merely, which does not conflict with the absolute proprietorship of the owner." (Jones on Easements, sec. 208, citing Snyder v. Warford, 11 Mo. 513, 49 Am. Dec. 94.) "The owner of a fee subject to a right of way may use the land for any purpose not inconsistent with the rights of the easement. What use the owner of the fee may make of such right of way is a question of fact to be determined by the jury." (Jones on Easements, sec. 394.) "An easement granted or reserved for a purpose definitely declared ceases when this purpose no longer exists." (Jones on Easements, sec. 842.) The owner of an easement may, without deed, abandon his easement so as to relieve the servient estate of the incumbrance. (10 Ency. of Law, p. 434, and note 7; Jones on Easements, sec. 849, and cases cited.)

FRICK, J.

This is an action to quiet title to a strip of ground 330 feet in length by 3612 feet in width, both parties claiming title to the strip and each praying for judgment that the title be quieted. The undisputed facts, in substance, are as follows: Respondent's intestate, one Elias Morris, up to November, 1882, was the owner in fee of all of lots 7 and 8 in block 65, Plat A, in Salt Lake City. Elias Morris died in March, 1898, and respondent a short time thereafter was duly appointed administrator of the estate of said Elias Morris, deceased. Block 65 is one of the original blocks

of Salt Lake City, 660 feet square. The block was originally divided into eight lots. Lots 1, 6, 7, and 8 fronted east on Third West street, while lots 2, 3, 4, and 5, fronted west on Fourth West street. Lots 7 and 8 are the only ones in question here. Each one of the lots aforesaid was 330 feet in length by 165 feet in width. There were no alleys in the block as originally platted. Lots 7 and 8 were contiguous. The dividing line between them was the center of one-half of the block east and west, and their end lines formed a part of the center line of the block north and south. Lot 8 was on the south and lot 7 on the north of the center line of the block. Between the years 1882 and 1893, deceased, by proper deeds of conveyance, parted with his title to all of lots 7 and 8. The land was sold and conveyed in parcels, and all the parcels were described by metes and bounds in the deeds of conveyance, so that the north boundary of all of the parcels sold in lot 8 was on the west of the center line of the block, and was distant 20 feet from that line, or 20 feet north of the original line of lot 8; while the boundary line of all the parcels sold in lot 7 was 1612 feet distant from the center line of the block, or the south line of lot 7. This left a strip of land 361⁄2 feet by 330 feet between the south boundary line of all of the parcels sold in lot 7 and the north boundary line of all the parcels sold in lot 8. This is the strip in controversy. In conveying the first three parcels nothing was said in the deeds about this strip of ground, but in describing the parcels sold all were so bounded as to leave this strip of ground between those on the south and those on the north of the strip. About a year after the first three parcels were sold, the deceased, Morris, executed a deed in which he conveyed to the grantees in his former deeds "and to their heirs and assigns forever a right of way or easement over the following described piece or parcel of land for an alleyway or street, said alleyway to be used for any and all purposes for which a street or alleyway is commonly used." Then follows a description of the strip 3612 by 330 feet. After the execution of these deeds, all other deeds

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