Opinion by

The appellee, under and by virtue of his agreement with Mrs. Philopena C. Fuellhart, acquired the privilege of piling *363his lumber and bark on the platform for the purpose of shipment on the railroad, which privilege, by the express terms of that agreement, expired “without further notice,” June 1, 1890. When the privilege expired there was a quantity of his lumber and bark on the platform, and Mrs. Fuellhart was desirous of having it removed in order that another party to whom she had granted a like privilege might pile his lumber and bark there for a like purpose. Accordingly the appellee was notified by her to remove his lumber and bark, and as he paid no attention to the notice, the appellants, on June 16, 1890, acting for and under orders from Mrs. Fuellhart, hauled the lumber and bark a short distance from the platform, and piled some of it by the roadside and some of it on her land. The appellee then brought this action against them to recover the damages he alleges he sustained by the removal of his property. It.is manifest at the outset that if they did no more than Mrs. Fuellhart had a right to do there can be no recovery against them. We look therefore to the agreement between the appellee and Mrs. Fuellhart to discover what their respective rights were on the first of June, 1890, in reference to the occupancy and use of the platform and the ground covered by it. It was plainly the duty of the appellee to surrender his possession of the property to Mrs. Fuellhart, from whom he received and under whom he held it, and to remove his lumber and bark therefrom. If he refused or neglected to discharge this duty, she had an undoubted right to take possession of the ground to which the privilege he acquired under their agreement extended, and, to enable her to do so, to remove from it his timber and bark. It was her duty to exercise this right without violence or a breach of the peace, and without inflicting unnecessary injury upon his property. We cannot find on this record any evidence which would justify a finding that in the removal of the property there was any unnecessary waste of or injury to it.

But the appellee contended in the court below and contends here that Mrs. Fuellhart had no right on the first of June, 1890, or thereafter, to the possession of the land to which his privilege applied, or to remove therefrom his lumber and bark, because he says the land was either in the public highway or appropriated by the railroad company. The learned judge of the court below instructed the jury that if the lumber and bark *364in question “ was piled within the lines of the public highway and remained there after the rights which the plaintiff had acquired under the contract had expired, then it was wrongfully there, and Mrs. Fuellhart might cause it to be removed, doing no more damage in removing it than necessary to accomplish the purpose,” and also that if “ the property was taken from the land appropriated by the railroad company .... the plaintiff would be entitled to recover something.” The portion of the charge last quoted is the subject of the third specification of error. In support of this specification the appellants contend that the evidence is insufficient to warrant a finding that the appellee’s lumber and bark were on land appropriated by the railroad company, and in this contention they appear to be well sustained by the record. There is certainly no evidence that the company appropriated any part of the public highway, or that it exercised any control over the platform or the ground covered by it. The right of Mrs. Fuellhart to use the platform and to grant privileges to others to use it does not appear to have been questioned by the company, at any time. No witness testified that any portion of the lumber and bark removed by the appellants was on land condemned by the company. But Henry Fuellhart, Charles Fuellhart and Carl Horn testified, distinctly and positively, that the platform was “ wholly within the public road,” and the appellee testified that it was “almost entirely on the public highway.” The jury ought not to have been permitted to find on this evidence that the appellee’s lumber and bark were taken by the appellants from the railroad company’s land.

We have no doubt that the appellee could have taken his property from Mrs. Fuellhart’s land without becoming liable to her as a trespasser. It was not appropriated by her, and there is nothing on the record to indicate that she claimed or intended to claim it. He knew where it was and had an undisputed right to take it. He cannot therefore charge her or the appellants with any loss he may have sustained by his neglect to do so.

The first, second and third specifications are sustained, and the fourth is overruled.

Judgment reversed.