McQUADE, Justice.
The plaintiff-respondent railroads, Oregon Short Line Railroad Company and Union Pacific Railroad Company, institutes this action in 1965 to have an ordinance of the City of Mountain Home declared void. The ordinance purported to annex the tract of land over which respondents' railroad operates. The question was submitted to the district court on a stipulated statement of facts and judgment was rendered in favor of the railroads.
The facts, as stipulated, may be briefly summarized. In compliance with the Act of Congress of 1875, the Oregon Short Line Railroad perfected a right-of-way in 1883 over land which is the subject of this action. The line has since been in continuous use and control of the Oregon Short Line and the Union Pacific Railroads and all taxes and assessments on the right-of-way have been paid since 1883-1884. In 1891-1892, the United States patented the area around the right-of-way to persons other than the railroads. These persons, or their successors, in turn, conveyed this land in fee to the Great Western Sugar Beet Company which platted this and other land as Jerome's Addition to Mountain Home in January, 1906. Neither railroad has ever laid any of the "right-of-way or any part of it off into blocks, nor sold, nor begun to sell, by metes and bounds or otherwise any part of it in tracts not exceeding five acres of land each."
On or about the 31st day of December, 1964, the City of Mountain Home enacted the ordinance attacked in this action. It purported to annex a portion of Jerome's Addition and a section of the railroads' right-of-way.
This action must turn on an interpretation of I.C. § 50-303 (1947) which, at the time this action arose read:
"
Annexation of adjacent territory. — Whenever any land lying contiguous or adjacent to any city, town or village in the state of Idaho, or to any addition or extension thereof, shall be, or shall have been, by the owner or proprietor thereof or by any person by or with the owner's authority or acquiescence, laid off into lots or blocks, containing not more than five acres of land each, whether the same shall have been, or shall be, laid off, subdivided or platted in accordance with any statute of this state or otherwise, or whenever the owner or proprietor, or any person by or with his authority, has sold, or begun to sell off such contiguous or adjacent lands by metes and bounds in tracts not exceeding five acres, it shall be competent for the council or board of trustees, as the case may be, by ordinance, to declare the same, by proper legal description thereof, a part of such city, town or village.
Provided that said board of trustees or council shall not have the power to declare such land, lots or blocks a part of said city, town or village, if they will be connected to such city, town or village by a shoe-string or strip of land upon a public highway." (Emphasis original)
The question which is presented is: Are the railroads the "owner or proprietor" of annexed land within the meaning of this statute? If they are, then, following Oregon Short Line Railroad Co. v. Village of Chubbuck, so much of the annexation ordinance as purported to include the railroad right-of-way is void, because the right-of-way was not and could not be platted. The City argues, however, that the railroads have a "mere" easement and are, therefore, not the "owners or proprietors" of the land on which they have a right-of-way. To support this proposition they point to the case of Great Northern R. Co. v. United States. That case involved an action by the United States to enjoin the railroad from removing minerals from land upon which a right-of-way had been granted under the 1875 statute which is involved in this case. The Supreme Court of the United States, per Justice Murphy, held that the railroad had been granted only an "easement" and that the fee interest in the minerals was retained by the grantor United States. That case did not, however, determine the right of a railroad to preclude other uses of its right-of-way competitive and inconsistent with its own use.
83 Idaho 62, 65, 357 P.2d 1101, 1103 (1960).
315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836 (1942).
While a railroad right-of-way may not carry with it the power to remove minerals from the servient estate, it is still a perpetual and exclusive possessory interest in the land surface as long as the right-of-way is used for railroad purposes. While the owner of the servient estate might plat the land "under" the right-of-way easement, he could not use the surface of the right-of-way without the permission of the holder of the easement. Thus, the adjacent owners could not give the right-of-way land an urban character without the acquiescence of the respondents. For purposes of the 1947 statute, therefore, the respondents are the "owners or proprietors" of their right-of-way. This case is governed by Oregon Short Line Railroad Co. v. Chubbuck, supra, and the judgment of the district court must be affirmed.
See, Coulsen v. Aberdeen-Springfield C. Co., 47 Idaho 619, 627, 277 P. 542, 544 (1929). (A dictum discussion of the amount of easement normally owned by a railroad); Mitchell v. Illinois Central Railroad Co., 384 Ill. 258, 51 N.E.2d 271, 149 A.L.R. 369, 374 (1943); Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 136 A.L.R. 286, 293 (1941).
See Counsen v. Aberdeen-Springfield C. Co., supra note 4, 47 Idaho at 627, 277 P. at 544; Harvest Queen Mill Elevator Co. v. Sanders, 189 Kan. 536, 370 P.2d 419, 6 A.L.R.3d 962, 970 (1962).
Costs to respondents.
McFADDEN, C.J., and DONALDSON, SHEPARD and SPEAR, JJ., concur.