The opinion of the court was delivered by

Under the will of John Davenport, the lands of which he died seized and possessed in Kansas were not specifically devised to his executors and testamentary trustees, still we think the powers contained in the will and the duties imposed thereunder were' equivalent in law to a devise for the uses and purposes therein named.

As to the real estate situated in this state, such will would not affect the rights of his widow thereto, unless she consented to such will in writing, or *215elected to take under it after the decease of her husband. There was a total failure of proof in respect to both propositions. For aught that appeared in the case, the widow may still be claiming to own a one-half interest in the land, and, when challenged by the answer of the railway company, it was the duty of the plaintiffs to show the facts in support of their claim of ownership, and to negative the presumption that the widow inherited an interest under the laws of Kansas." It is idle to cite authorities upon these fundamental propositions, and we do not understand the counsel for defendants in error seriously to contest either of them. They say in their brief:

“As the law now stands, if he left no children, and she had repudiated his will, she would have taken by descent the one undivided half of the Kansas lands, and the trustees the other half, by virtue of the will, and she and they would be tenants in common. Assuming, then, but not admitting — for the truth is, she accepted the will — all that to be so, and to have been shown at/the trial (and it was not), still the plaintiffs below were entitled to recover the entire damages for the choking up of this crossing; for .it is well settled that a tenant in common in exclusive possession can recover damages done to the common freehold, without joining the cotenant not in possession, 'for the benefit of himself and cotenant.’ ”

In support of this contention, counsel for defendants in error cite us to the following cases : Bigelow v. Rising, 42 Vt. 678 ; Jewett v. Whitney, 43 Me. 242 ; Grassmeyer v. Beeson, 18 Tex. 753, 70 Am. Dec. 309 ; Bricker v. Ledbetter, 26 Kan. 269; Anderson v. Gray, 134 Ill. 550, 25 N. E. 843 ; Bird v. Lisbros, 9 Cal. 1, 70 Am. Dec. 617; O. & G. S. & R. Co. v. Tabor, 13 Colo. 41, 21 Pac. 925 ; Thomas v. Hunsucker, 108 N. C. 720, 13 N. E. 221.

In the case of Bigelow v. Rising, supra, it is stated *216in the syllabus : ‘ ‘ One of two or more tenants in common of real estate may maintain an action in his own name -for a trespass on such estate against a mere stranger, and in such action may recover the whole damage to the property for the benefit of himself and 'his cotenant.”

In Jewett v. Whitney, supra, the third clause of the syllabus reads as follows : “A cotenant in possession may maintain trespass quare clausum against a stranger for an injury to the freehold.”

In the syllabus in the case of Grassmeyer v. Beeson, supra, is found the following: “We have heretofore decided .that one tenant .in common may maintain trespass to try title against a stranger.”

In Bricker v. Ledbetter, supra; the first clause of the syllabus reads: “Where it appears that a husband and wife entered into the possession of vacant land, built a house thereupon and occupied it, such possession is prima facie evidence of title, and sufficient as against a mere trespasser and wrong-doer.”

The last clause of the syllabus in Bird v. Lisbros, supra, is as follows : “A party in possession of land is deemed in law the owner, against all persons but one having superior title thereto ; possession is evidence of title, and the possessor, in conveying, is deemed to convey the title itself sufficiently to enable his grantee to maintain ejectment against a mere trespasser.”

The other cases cited have no possible bearing upon any phase of this case, and we are at a loss to know why they are referred to in the brief. It will be seen by the quotations from the authorities cited above that one tenant in common, in exclusive possession of lands and tenements, may maintain an action against a mere trespasser and wrong-doer for the benefit of *217himself and his cotenants. In this case the railway company was neither a trespasser nor a mere wrongdoer. It acquired possession of its right of way in a lawful manner, and may not be charged in this action with an unlawful entry thereon. In Mo. Pac. Rly. Co. v. Manson, 31 Kan. 337, 341, 2 Pac. 800, 803, this court held:

“Under condemnation proceedings, a railroad company acquires the exclusive use of the land condemned, so far as it is necessary for railroad purposes, and the original landowner has no right to go upon the land or construct fences thereon, if his action interferes with the use of the property condemned for railroad purposes. Therefore, in many cases, the right of the owner practically amounts to nothing where the land is condemned for a railroad company, because the purposes of the railroad company may require the use of the land taken to such a degree as to forbid the owner from any benefit whatever.” (See, also, K. C. Rld. Co. v. Comm’rs of Jackson Co., 45 Kan. 716, 26 Pac. 394.) .

As the case must go back to the court below for a new trial, it is proper that we should determine questions which are here fairly presented and relate to the substantive rights of the-parties, and which, if the proofs justify it, are certain to be raised again in the trial court.

As to the claim of the defendants in error, that they and their testate acquired a title to the under-grade crossing by adverse possession, it will suffice to say that the contention is wholly without merit in fact or foundation in law.

Upon principle and authority, the rule ought to be. and undoubtedly is, that where a railway company instituted proceedings to condemn land for use as a right of way, and upon a trial in an appeal to the district court from the award of damages by commission*218ers, which trial was held after the construction of the. line of railroad, it appeared that an under-grade crossing of great value to the farm had been left by the railway company, and where, upon the trial of such an action, the map and profile of the road, showing the width of such opening or under-grade crossing, were offered in evidence, and the railway company, in order to reduce the damages to be awarded, asked and obtained an instruction to the jury “that the plaintiff has the right to build, construct and maintain any crossing of defendant’s right of way upon his land which shall be under the track or tracks of defendant’s road upon such right of way, when such under-grade crossing in no wise interferes with the defendant’s use of such track or tracks, for the purpose of operating and carrying on its business thereon” ; and where, several years later, the company, or its successor, while improving the railroad, instead of putting in a permanent iron bridge, and preserving to the landowner the use of such crossing, wholly ignored the rights which upon the aforesaid trial in the condemnatory proceedings the jury were presumably led to believe had become vested in the latter, and closed up such crossing without his consent, and against his will; under such circumstances the imposing of additional servitude upon the land, to the injury of the owner of the fee, should be recompensed by an allowance of additional damages, which may be recovered in a proper action by such owner. (Missouri, K. & T. Ry. Co. v. Haines, 10 Kan. 440, 442; Kansas Cent. Ry. Co. v. Allen, 22 id. 286, 31 Am. Rep. 190 ; K. C. & E. Rld. Co. v. Kregelo, 32 id. 608, 5 Pac. 15 ; W. & W. Rld. Co. v. Kuhn, 38 id. 104, 16 Pac. 75; C. K. & W. Rid. Co. v. Cosper, 42 id. 561, 22 Pac. 634.)

Such being the purpose of this action, under its *219pleadings the railway company was entitled to have the matter of damages settled once for all, and to that end it could, and did, insist that the real parties in interest should be made parties to the suit.

Because the evidence does not show that the plaintiffs in the court below were entitled to maintain this suit without joining the widow as a party plaintiff, the judgment is reversed and a new trial granted.