6

and hold land for the procurement of materials, or for the economical construction of the road.5 In a late English case, it was held that the railway could not use land, thus conveyed, for any other purpose than that expressed in the acts of parliament, by virtue of which the company exercised their functions.

5. It has been held that, where one railway has power in their act to cross another railway, there being no express permission in the act for one company to take land, or for the other company to sell, that the first company could not be compelled, by mandamus, to purchase any of the land upon which the other road. was constructed, their only claim being one for damages. So, also, the right to make a junction with a pre-existing railway, does not imply the power to take the title to any of the lands of such railway, unless that is indispensable to effect the junction, but only to enter upon such lands, by way of easement, for the purpose of effecting the junction.8

6. But where the legislature confer the power upon two railway companies to purchase compulsorily the same piece of land, and one company has taken the land and constructed their road upon it, equity will enjoin the other company from proceeding to take it * compulsorily for their use, until the conflicting rights of the companies are determined by a trial at law.9

7. The general course of decisions in this country coincides tate therein, for the purposes of a road-bed or stations, than was really requisite for such uses; that the estate so requisite was not one in fee simple, but merely an easement, and was, therefore, not subject to be levied upon by the creditors of the company; that when taken for such purposes, the rule was the same, whether the land was taken compulsorily by condemnation and the award of commissioners, as to its extent and price, or under the agreement of the parties as to one or both of these particulars; that under their charter the directors had power to lay out their road and stations as they saw fit; and that, so long as they acted in good faith and not recklessly, their decision as to the quantity of land required for depot accommodations would be regarded as conclusive.

5 Overmyer v. Williams, 15 Ohio R. 26.

• Bostock v. The North Staffordshire Railw. [February, 1856, before ViceChancellor Stuart, 19 Law Rep. 106].

Reg. v. South Wales Railw., 6 Railw. C. 489.

* Oxford, Worcester, & Wolverhampton Railw. v. South Staffordshire Railw.,

19 Eng. L. & Eq. 131.

9 Manchester, S. & L. Railw. v. The Great N. Railw., 12 Eng. L. & Eq.

216.

with the English common-law rule, in regard to the title acquired by the public, by the exercise of the right of eminent domain, that is, that no more of the title is divested from the former owner than what is necessary for the public use.10 The owner may still maintain trespass, for any injury to the freehold, by a stranger.10

8. And in regard to railways, in particular, it has been repeatedly decided in the different states, that they take only an easement in land condemned for their use.11 In an important case 12 in the Supreme Court of the United States, involving questions of title in regard to the streets in the city of Pittsburgh, Mr. Justice McLean thus sums up the general doctrine:

"By the common law, the fee in the soil remains in the original owner where a public road is established over it; but the use of the road is in the public. The owner parts with this use only; for if the road shall be vacated by the public he resumes the exclusive possession of the ground; and while it is used as a highway he is entitled to the timber and grass which may grow upon the surface, and to all minerals which may be found below it. He may bring an action of trespass against any one who obstructs the road."

10 Dovaston v. Payne, 2 H. Bl. 527; Rust v. Low, 6 Mass. R. 90; Jackson v. Rutland & Burlington Railw., 25 Vt. R. 151; 2 Rolle's Ab. 566, p. 1.

11 Railroad v. Davis, 2 Dev. & Bat. 457; Dean v. Sullivan Railw., 2 Foster, 316; Plank Road v. Buff. & P. Railw., 20 Barb. 644; Weston v. Foster, 7 Met. 297. In a late case in Ohio, where the subject seems to have been examined with care and study, it is laid down, as the result of the law upon the subject, that only such interest as will answer the public wants can be taken; and it can be held only so long as it is used by the public, and cannot be diverted to any other purpose. Giesy v. Cincinnati, Wil. & Zanesv. Railw., 4 Ohio St. 308. See also Hooker v. Utica & Minden Turnp. Co., 12 Wend. 371; People v. White, The title of the land-owner is 11 Barb. 26; Blake v. Rich, 34 N. H. R. 282.

thus defined in this last case. The exclusive right of property in the land, in the trees and herbage upon its surface, and in the minerals below it, remains unchanged, subject always to the right of the company to construct and operate their road, in any legally authorized mode.

12 Barclay v. Howell's Lessee, 6 Pet. 498. Cases to establish the general principle here announced might be multiplied to any extent. They will be found extensively collected in 3 Kent, Comm. 432, and notes. By the civil law, it is said, the soil of public highways is in the public, and the law of Louisiana is the same. Renthorp v. Bang, 4 Martin, 97.

*

9. But a query is expressed here, as in many other cases, whether this rule applies to the streets and thoroughfares of cities. In a late case in one of the British provinces on this continent, Nova Scotia, it is said to have been held, by a divided court, after long debate and deliberation, that the title to land, covered by a highway or street, vested absolutely in the crown, and that the owner had no reversionary interest.18

10. Some of the American cases seem to intimate a different rule from that which generally prevails in reference to highways, in regard to the title acquired by railway companies.14 But in a late case 15 it was held, that the municipal authority of a city have no power to grant permission to a railway company to take or injure the property of a citizen; but the companies have an implied authority to make such sidetracks and continuations at the termini of their road as may be reasonable and necessary for the transaction of their business and the accommodation of the public, and may take private property for these purposes. The right to use and enjoy the street is an appurtenance to the adjoining land, and an injury to the appurtenance is an injury to the whole property; and as for such an injury the statute prescribes no remedy, the land-owner must resort to his commonlaw remedy.

13 Koch v. Dauphin, James, 159.

14 Wheeler v. Rochester & Syra. Railw., 12 Barb. 227; Munger v. Tonawanda Railw., 4 Comst. 349; Coster v. New Jersey Railw., 3 Zab. 227. The New York Court of Appeals, quite recently, upon elaborate examination, came to the conclusion, that a deed to a railway company, granting land to it and its successors, conveys an estate in fee. Nicoll v. New York & Erie Railw., 2 Kernan, 121. But see Henry v. Dubuque & Pacific Railw., 2 Clarke (Iowa), 288. In De Varaigne v. Fox, 2 Blatchf. C. C. R. 95, it was held, that where the statute conferred the right to take the fee of land, and it was taken upon compensation accordingly, the court will not construe the grant as a conditional fee or usufruct, leaving a possible reverter to the original proprietor, but will regard the entire property as vested in the grantee forever, and that if any right accrues to the former owner in consequence of the change of the destination of the property, after the continuance of the use for twenty-six years, it is an equitable and not a legal right.

What shall be a reasonable the depot is here discussed. Evansville &c. Railw. v. Dick,

15 Protzman v. Ind. & Cin. Railw., 9 Ind. R. 467. extension of the track of a railway in a city beyond It seems to be more a question of fact than of law. Id. 433.

11. But in a late case in Massachusetts,16 the title seems to us to be explicitly and fully stated, and the only ground of distinction between railways and common highways, as to the title of the land taken, very intelligibly pointed out. The court here say, 'the right acquired by the corporation, although technically an easement, yet requires for its enjoyment a use of the land permanent in its nature and practically exclusive."

66

12. Hence, it seems to be admitted that, even in cases where the statute provides for the taking of the fee, upon the discontinuance of the public use, the land reverts to the former owner.17 But where a special act authorizes a municipal corporation to hold the * fee of the soil for the site of an almshouse, it was held that the original owner and his representatives could claim no exclusive interest therein, or any reversionary title thereto, after the removal of the almshouse to another site.18

13. In some of the cases in this country, it has been held, that it is only the residuum of title remaining in the corporation, at the time a railway is discontinued, that reverts to the former

16 Hazen v. B. & M. Railw., 2 Gray, 574. But the company have no right to do any act upon the land except what is conducive to the use of the land for the purposes of their grant, of which they are the judge. Brainerd v. Clapp, 10 Cush. 6. In this case, Shaw, Ch. J., thus defines the title of the railway, in lands taken for their use: “The railroad company are authorized to do all acts, within the five rods, which by law constitute their limits, in taking away or leaving gravel, trees, stones, and other objects, which in their judgment may be necessary and proper to the grading and levelling of the road, in adjusting and adapting it to other roads, bridges, buildings, and the like, so as to render it most conducive to the public uses which the railway is intended to accomplish. Whatever acts therefore are requisite to the safety of passengers on the railway, to the agents, servants, and persons employed by the company, and to the safe passage of travellers, on and across highways and roads connected with it, and which can be done within the limits of the five rods, the company have a right under their act of incorporation to do. This is embraced in the idea of taking land for public use." See Chicago & Miss. Railw. v. Patchin, 16 Ill. R. 198.

17

People v. White, 11 Barb. 26; United States v. Harris, 1 Sumner, 21. And by the repeal of a charter the lands do not revert to the former owner, but the franchises of the corporation are resumed by the state, and the railway remains public property, subject to the management and control of the state. Erie & Northeast Railw. v. Casey, 26 Penn. St. 287. But see Rexford v. Knight, infra.

18 Hayward v. Mayor of New York, 3 Seld. 314. So also in regard to lands appropriated to the use of the state canals. Rexford v. Knight, 1 Kernan, 308.

owner of the land, and that, in the mean time, the company may wholly defeat the reversion, by a conveyance in fee-simple; and this remarkable proposition is distinctly announced in one case, -"Corporations have a fee-simple for purposes of alienation, but they have only a determinable fee for purposes of enjoyment.'

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14. If it were said that corporations, created for special purposes of intercommunication, like railways and canals, and invested with the sovereign prerogative of eminent domain for these purposes only, had no interest, or estate, in lands whatever, except for the mere purpose of carrying on the functions with which they were invested by the state, and could neither use nor convey the lands, to be used for any other purpose whatever, it would seem far more in accordance with established principles and generally received notions upon the subject. In the same case it is said, a grant to a corporation, created only for a term of years, purporting to convey a fee, will not be construed to convey only a term for years.

15. In all these cases where the title of the company depends upon conditions, they must be strictly performed and strictly construed.20

16. But where, by the law of the state, railways, upon discovery that the title they are acquiring may prove defective, have the right to take new proceedings, it was held, that the discovery of a mortgage upon lands will justify the abandonment of pending process, and instituting procedure under the section which allows them to extinguish incumbrances, on that portion required for their road.21 And the appraisal of land subject to an easement in the grantor, is irregular, and no title passes.22

* 17. After land is condemned for the use of a railway, the adjudication can no more be impeached by any collateral pro

19 Nicol v. New York & Erie Railw., 12 Barbour, 460. See State v. Rives, 5 Ired. 297.

20 Bangor & Piscataqua Railw. v. Harris, 8 Shepley, 533; Lovering v. Railw., 8 Watts & Serg 459; Munger v. Tonawanda Railw., 4 Comst. 349; Carr v. Georgia Railw. & Banking Co., 1 Kelly, 524.

21 New York Central Railw. in re, 20 Barbour, 419.

22 Hill v. Mohawk & H. Railw., 3 Seld. 152.