jury. In the same case it was also held that this question could not be made to depend on the opinions of witnesses, but was for determination by the court, and that in determining the question the court would take into consideration the section of the country, the particular locality, the uses to which the land was to be devoted, etc. All the cases hold the question is one to be determined by the court, and that corporations will not be permitted to abuse the power given them to condemn private property. 548 In O'Hare v. Chicago etc. R. R. Co., 139 Ill. 151, 28 N. E. 923, it was Isaid that it was not intended to be held in the Smith case (105 Ill. 511) that the allegations of the petition are conclusive on the land owner, and cannot be traversed or disputed by him, but where the allegations of the petition are not denied or controverted in any manner, and it is not made to appear that a greater amount of land is sought to be taken than is necessary, the court may treat the petition as admitted, as in case of default, and proceed to fix the compensation without proof of its allegations. In the case at bar the defendant to the petition, plaintiff in error here, was defaulted. The petition to condemn the land in controversy alleged that petitioner was constructing a dam and reservoir for the purpose of impounding water for supplying it to the city of Mattoon and its inhabitants, and that it was necessary to take the property of plaintiff in error (describing it) for a reservoir for that purpose. Plaintiff in error cannot now, in an ejectment suit, try the question whether more land was taken by defendant in error than was necessary for the use for which it was taken. His contention is that defendant in error's right to the property is dependent upon its use for the purpose for which it was taken; that such use of the portion of the property condemned in controversy in this suit is impossible, and as defendant in error cannot retain it for any other use, it reverts to the original owner. Plaintiff in error sought to prove that the land described in the declaration-about one-third of the whole amount of his land condemned— lay at such elevation above the dam that it was a physical impossibility to use it as a portion of a reservoir in which to impound defendant in error's water supply, but the court refused to permit the proof to be made. If the facts proposed to be proved by plaintiff in error, undisputed, would not have authorized a recovery, then the ruling of the court was right, but if the converse is the law, then the ruling was wrong. 549 We have been referred by counsel to no case where the question here involved has been passed upon. Cases are to be found where a corporation has, after condemnation. and use of the property for a time, ceased to use it, and where the facts showed an abandonment, it was held it reverted to the original owner or his grantee. We are of the opinion no reasonable distinction, in principle, can be drawn between abandonment after user and the failure to use property condemned because its use is impossible. Chicago etc. R. R. Co. v. Clapp, 201 Ill. 418, 66 N. E. 223, was an action of ejectment to recover a strip of land that had been condemned by the railroad company and used for a time as a right of way. The company ceased running trains over the land and took up the rails of its track. The trial court submitted to the jury to determine from the evidence whether the railroad company had abandoned the land. The jury found it had and returned a verdict for plaintiff, and the judgment rendered on that verdict was affirmed by this court. This court held that abandonment meant the relinquishment of the property with the intention of abandoning it, and that this was a question of fact for a jury. In the same case the court said (page 424) : "The law is that 'when a corporation, in the exercise of the right of eminent domain, acquires for a public purpose a mere easement in land, its right and title to the property so acquired are dependent upon the use of the property for public purposes, and when such public use becomes impossible or is abandoned, its right to hold the land ceases and the property reverts to its original owner': 10 Am. & Eng. Ency. of Law, 2d ed., p. 1198; Kansas Central R. R. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190; Helm v. Webster, 85 Ill. 116." Property condemned for public use cannot be devoted by the condemner to any other use than that for which it was taken. Where its use for that purpose becomes impossible, the effect is the same as an abandonment, and there is a reverter to the owner of the fee. While the law has 550 clothed courts with power to determine whether taking all the land sought to be condemned by the corporation is an abuse of its power, it is evident that this question may not always be one that can be determined with absolute accuracy. If it should turn out that the corporation could not use a substantial portion of the land for the purpose for which it was taken, the fact that the court had, on the showing made before it, been of opinion the land sought to be taken was not unreasonable or unnecessary and permitted it to be condemned, would not give the corporation the right to retain the land for other uses or to retain it without using it for any purpose. It is, of course, permissible for the condemner to take not only sufficient land for the present need, but it may anticipate the future increased needs and demands for the public use to which the land is to be devoted: Lewis on Eminent Domain, sec. 279. But the question raised on this record is not whether the twenty acres in controversy is necessary for the uses for which it was condemned, but whether its use for that purpose is impossible. If it is reasonably capable of being used for the purposes for which it was condemned, the necessity for it for such use cannot be inquired into in this suit. If, however, it is, as was sought to be proven by plaintiff in error, rendered impossible for present or future use for the purpose for which it was condemned, then certainly the corporation ought not to be allowed to retain it. We are of the opinion the court erred in refusing to permit the proof offered that the land sued for is incapable of being used for reservoir purposes, and therefore cannot be devoted to the uses for which it was taken. The judgment of the circuit court is therefore reversed and the cause remanded. In the Exercise of the Power of Eminent Domain, expressly delegated by the legislature to railroad companies, they represent the sovereignty of the state, and may decide, within certain limitations, what and how much land of the citizen they will condemn for their purposes. Within such limitations their discretion is practically abso lute, and while it is competent for the courts to supervise the exercise of the power delegated, they cannot invade the bounds set by the legislature, and will not undertake to control the discretion of the railroad companies in taking property for their use, unless there has been a very clear abuse of power: Zircle v. Southern Ry. Co., 102 Va. 17, 102 Am. St. Rep. 805; State v. District Court, 34 Mont. 535, 115 Am. St. Rep. 540. Where the Fee to Land has Been Acquired by Condemnation, there can be no reversion to the former owner, whether or not the land is devoted to the purpose for which it was taken. Where a city by condemnation decree has acquired the fee to land for a water system, the former owner cannot object to the city granting an easement therein to a railroad company: Reichling v. Covington Lumber Co., 57 Wash. 225, 135 Am. St. Rep. 976. CASES IN THE COURT OF APPEALS OF WALKER'S KENTUCKY. EXECUTOR V. LUXON'S ADMINIS- [138 Ky. 14, 127 S. W. 489.] LIMITATION OF ACTIONS-Note and Mortgage-Remote Vendees. The commencement of an action by the holder of a note secured by mortgage to enforce the debt and lien does not stop the running of the statute of limitations as against remote vendees of the land, although they are afterward brought in by amendment, but not until the statute has run its course. (pp. 345, 346.) J. A. Sullivan and S. M. Wallace, for the appellant. John C. Chenault and Henry C. Hazelwood, for the appellees. 15 BARKER, C. J. On March 5, 1887, W. E. Luxon and his wife, Sallie B. Luxon, executed and delivered to J. Stone Walker their promissory note for $450, and to secure its payment executed and delivered a mortgage on the real estate described in the petition, which is situated in Richmond, Kentucky. Afterward, on June 25, 1887, Luxon and wife sold and conveyed the mortgaged property to S. D. Parish for $400 cash, $200 due in sixty days, and the further consideration that Parish assume the debt of $450 due J. Stone Walker. On January 24, 1888, S. D. Parish made a payment of $240.25 on the note. In 1890 he sold a part of the mortgaged property to Lyman Parish, and in 1892 appellee W. L. Arnold purchased a portion of it. On the ninth day of January, 1902, the appellant's testator, Sallie E. Walker, claiming to be the owner of the note executed by the Luxons to J. Stone Walker, instituted this action by filing in the Madison circuit court a suit against W. E. Luxon and wife. In the petition the payment of $240.25 as of January 24, 1888, is admitted, and judgment prayed for the balance of the debt and an enforcement of the lien upon the mortgaged property. Afterward, in August, 1904, an amended petition was filed, setting up the fact that the appellees Lyman Parish and W. L. Arnold had purchased portions of the mortgaged property, and making them parties defendant. The two last-named defendants filed separate answers, each containing six paragraphs. In the first paragraph they denied certain allegations of the petition. In the second, they pleaded payment in full to J. Stone Walker of the debt sued on. By the third, 16 fourth, fifth and sixth paragraphs they pleaded several statutes of limitation. A general demurrer to the third, fourth, fifth and sixth paragraphs to the answers was sustained. The deposition of J. Stone Walker was then taken on the issues remaining, and the case submitted for judgment. The trial court adjudged that the plaintiff was entitled to a judgment against the Luxons for the amount claimed in her petition, and that she was entitled to enforce her mortgage against all of the property except that claimed by the appellees Parish and Arnold. As to them the fifteen year statute of limitation barred the right of action in plaintiff to enforce her mortgage against property owned by them. Therefore, the petition was dismissed as to them. Of this part of the judg ment the appellant, Sallie E. Walker's executor (she having died pendente lite), now complains. The circuit judge evidently changed his opinion as to the validity of the plea of the fifteen year statute of limitation between the time the general demurrer to the paragraphs of the answer pleading that statute and the rendition of the judgment. But we assume that plaintiff was not prejudiced by this change, in so far as the preparation of her case was concerned. Of course, the court would have permitted her to reply to the several paragraphs of the answer, if she had so desired, after he changed his opinion and overruled the demurrer to them; but, as all of the facts upon which the plea of the statute of limitation was based are admitted in the pleadings, no reply could have been made. The right of action on the note was clearly barred as to appellees at the time the action was instituted against them. The note was dated March 5, 1887, and the action 17 as to appellees was instituted in 1904. If we assume that the payment made in January, 1888, extended the life of the note for the full period of fifteen years, still the debt was barred in 1904; more than sixteen years having elapsed between that date and the time the action was commenced against appellees: Tate v. Hawkins, 81 Ky. 577, 50 Am. Rep. 181; Kendall's Admr. v. Clarke, 90 Ky. 178, 11 Ky. Law Rep. 980, 13 S. W. 583; Cook v. Union Trust Co., 106 Ky. 803, 21 Ky. Law Rep. 454, 51 S. W. 600, 45 L. R. A. 212. Appellant seeks to avoid this conclusion by pointing out that the action was instituted against the Luxons just a few |