delivered the opinion of the court.

The evidence makes it clear that the “ Corson lot,” for many years before 1880, and for years after that, was inclosed as a sepa*32rate and distinct parcel of land, erroneously supposed not to belong to the railroad company, but to another owner, and not in any way used or even claimed by the company. Surely, under such circumstances, it cannot be successfully claimed that this lot was land owned by the company and used in operating its road, so as to protect it from taxation as land by reason of the payment of the privilege tax.

The liability of the appellant for rent of the lot arises from the fact that it withheld the possession from the owners. Its yielding the house to Page could not free it from liability to the plaintiffs, who recovered the lot, and are entitled to mesne profits.

The criticism of the first instruction for the plaintiff, because of its making non-user of the lot in operating the railroad at the time of the sale for taxes the test of exemption, is just, but unavailing as ground to reverse the judgment, because it is manifest that the same state of things existed in 1880 as did at the time of the sale, and on the facts the result is right.

Affirmed.