taken possession of by a railway company, either under statutory power or by agreement, has a lien thereon for the purchase-money and also for the damages to the adjoining land, if not the subject of a special agreement, inconsistent with the continuance of such lien. Of this lien he is not deprived by a deposit and bond under the statute, or by accepting a deposit, less than the whole amount due him, and a court of equity will enforce this lien, although the railway has been opened for public use. 7. And where a subscription of land is made to a railway company, upon some condition precedent to be performed by the company, such condition is waived by conveying the land and certificates of stock. But if such conveyance is induced by false representations, the company may be compelled to perform it, or by tendering a return of the certificates the entire conveyance may be set aside, even after the company have conveyed the land to others conversant of the facts at the time of such conveyance.8 SECTION IV. Preliminary Surveys. 1. May be made without compensation. 2. Company not trespasser. 4. Company liable for materials. 3. For what purposes company may enter 6, 7. Location of survey. upon lands. § 66. 1. It is settled that the legislature may authorize railway companies to enter upon lands for the purpose of preliminary surveys, without making compensation therefor, doing as little damage as possible, and selecting such season of the year as will do least damage to the growing crops. The proper rule to be observed, in this respect, being such as a prudent owner of the land would be likely to adopt, in making such surveys for his own advantage.1 *2. In the English statutes, and in many of the special charters and general railway acts in the American states, the company are bound to make compensation for such temporary use of the land, 1 Cushman v. Smith, 34 Maine, 247; Polly v. S. & W. Railw. Co., 9 Barb. 449; Bloodgood v. Mohawk & H. Railw. Co., 14 Wend. 51; s. c. 18 Wend. 9; Mercer v. McWilliams, Wright (Ohio), 132. But in some states the party is made liable by statute for damages for temporary occupation. where they do not ultimately take the land. But in such case, where the statute authorizes the entry upon the land, the company are not to be treated as trespassers, and even where the statute provides for no compensation, it is not regarded as taking private property for public use, within the provisions of the American state and United States constitutions. 3. Under the English statute the notice to use lands for temporary purposes should specify the particular purpose for which the lands are required.2 By the English statute, the company may make a temporary entry upon land for the following purposes: 1st. For the purpose of taking earth, or soil, by side cuttings. 2d. For the purpose of depositing spoil. 3d. For the purpose of obtaining materials for the construction or repair of the railway. 4th. For the purpose of forming roads to, from, or by the side of the railway.1 5th. By section 42, if the owner of such lands, as the company give notice of temporary occupation, elect to sell to the company and give them notice accordingly, they are compellable to buy, and in all other cases to make compensation for all injury to the same. 4. It has been held, in regard to the right of railway companies to take materials from lands adjoining their survey to build their road," that the damages need not be appraised till after the materials were taken that the commissioners had authority to assess damages for every act which the company might lawfully do under their charter that the company had the right to take such materials, in invitum, and to use other land, without their survey, for Poynder v. The Great N. Railw. Co., 16 Sim. 3; s. c. 5 Railw. C. 196. 38 & 9 Vict. ch. 20, § 32. 2 : In Webb v. The Manchester & Leeds Railw. Co., 4 Myl. & Cr. 116; s. c. 1 Railw. C. 576, 599, Lord Cottenham, Ch., is reported to have said: “The powers given to these companies are so large, and frequently so injurious to the interests of individuals, that I think it is the duty of every court to keep them most strictly within those powers, and if there is any reasonable doubt as to the extent of their powers, they must go elsewhere and get enlarged powers, but they will get none from me, by way of construction of the act.” 5 Vermont Central Railw. v. Baxter, 22 Vt. 365. See also Bliss v. Hosmer, 15 Ohio, 44; Lyon v. Jerome, 15 Wendell, 569; Wheelock v. Young & Pratt, 4 Wendell, 647. Also Lesher v. The Wabash Nav. Co., 14 Illinois, 85. See post, § 68. preparing stone for their use: that the same right equally resided in the contractors to build the road: and that the corporation is liable to the land-owner for materials so taken by the contractors, notwithstanding any stipulations in the contract of letting exempting them from such liability, as between themselves and the contractors. 5. It has sometimes been made a question, in this country, how far the legislature could confer upon railway companies the power to take materials, without the limits of their survey, in invitum.5 And in a somewhat recent case, where the charter of the company authorized them to take land, so much as might be necessary for their use, and also to take for certain purposes earth, gravel, stone, timber, or other materials, on or from the land so taken, it was held the company were not thereby empowered to take materials from land not taken. 6. But a railway company, who enter upon land to construct their road before the time for filing the location of their line, are liable as trespassers, if the location when filed does not cover the land so entered upon.7 7. And the onus is upon the company to justify by showing that the land is covered by the authorized location. The location filed by the company is conclusive evidence of the land * taken, and cannot be controlled by extrinsic evidence, though a plan or map, made a part of the description of the location, and filed with the written location, may be referred to for explanation, but not to modify or control the written location." Parsons v. Howe, 41 Me. 218. And under the English statute it has been held that the company are not justified in taking land compulsorily, which is required, not for the purpose of constructing any portion of the works upon it, but to supply earth or other material to be used upon other land. Bentinck v. Norfolk Estuary Co., 8 De G. M. & G. 714. 7 Hazen v. The Boston & Maine Railw., 2 Gray, 574; Stone v. Cambridge, 6 Cush. 270; Hayes v. Shackford, 3 N. H. 10; Lewiston v. County Commissioners, 30 Maine, 19; Little v. Newport, A. & H. Railw., 12 C. B. 752; s. c. 14 Eng. L. &. Eq. 309; Springfield v. Conn. River Railw., 4 Cush. 63, 69, 70. * 244 SECTION V. Power to take temporary Possession of Public and Private Ways. 1. The railway company may take possession | 3. Party excavating highway in building of public or private ways, in building sewer and having restored it, no further responsible. their works. Responsibility. 2. Remedy under the statutes, unless special damage. 1 § 67. 1. Under the English statute, the company have the power, upon notice, to take temporary possession of private roads; and by other sections, they may take possession of, cut through, and interrupt public roads. But in all such cases the damage is to be compensated, and the road restored, when practicable, and if not, a substituted one made. 2. If a private way be obstructed, the remedy is to sue for penalty under the statute, or to bring an action under the statute for special damage. But it is said an action upon the case for the obstruction cannot be maintained, except in the case of special damage, which is expressly saved by the statute.2 3. A party who excavates a public highway for the purpose of constructing a sewer, by contract with the public authorities, and who properly restores the same at the termination of his work, is not further responsible. But the parish must look after the subsequent repairs, whether rendered necessary by the natural subsidence of the earth, by reason of the former excavation, or by ordinary wear and tear.3 1 8 and 9 Vict. c. 20, § 30. 2 Watkins v. Great Northern Railw. Co., 16 Q. B. 961; s. c. 6 Eng. L. & Eq. 179. But in Rangeley v. Midland Railw. Law Rep., 3 Ch. Ap. 306, it is said the company have no power under the statute to divert a public foot-path, so as to place it upon land of which it had not acquired the title. 3 Hyams v. Webster, Law Rep., 2 Q. B. 264. SECTION VI. Land for Ordinary and Extraordinary Uses. 1. By English statute may take land for all 3. So also of companies connecting at state necessary uses. lines. 2. Companies have the same power here. § 68. 1. By the English statutes, railway companies may not only purchase land for the purpose of the track, but also for all such extraordinary uses as will conduce to the successful prosecution of their business. This includes the site of stations, * yards, wharves, places for the accommodation of passengers, and the deposit of freight, both live and dead, and for the erection of weighing machines, toll-houses, offices, warehouses, and other buildings and conveniences; land for ways to the railway while in the course of construction, and to stations always. But a railway company in England cannot acquire the fee of land for the mere purpose of excavating soil in order to construct an embankment.2 And it has been decided that a railway company cannot take land for any subsidiary purpose, even where the direct act of the company comes within the powers granted them.3 As where they proposed 1 8 & 9 Vict. ch. 20, § 45. This section is only operative to enable the company to take lands for extraordinary purposes, beyond the line of deviation, by consent of the owners. But it is held that the justices have no jurisdiction, under the Railway Clauses Consolidation Act, to determine when accommodation works are necessary, but only what works are necessary, assuming that some such works are to be made. Reg. v. Waterford & L. Railw., 2 Irish Law (N. s.) 580. See post, § 99. In the case of Chicago, Burlington, & Quincy Railw. v. Wilson, 17 Ill. 123, it was held, that a grant to a railway company to construct a road, with such appendages as may be deemed necessary for the convenient use of the same, will authorize them to take land, compulsorily, for workshops. And this power is not exhausted by the apparent completion of the road; but if an increase of business shall require other appendages, or more room for tracks, it may in like manner be taken, toties quoties. But the land-owner may traverse the right of the company to take the land, and have it determined by the proper tribunal. S. Carolina Railw. v. Blake, 9 Rich. 228. So also the company may take land for erecting a paint-shop and lumber and timber sheds for the use of the company. Low v. Galena & Chicago Union Railw., 18 Ill. 324. 2 Eversfield v. Midsussex Railw., 1 Gif. 151; s. c. affirmed, 3 De G. & J. 286. 3 Dodd v. Salisbury & Y. Railw., 1 Gif. 158; s. c. on appeal, 5 Jur. N. S. 782. |