
    Olive Currier v. The Marietta and Cincinnati Railroad Company.
    Grants of corporate power, being in derogation of common right, are to be strictly construed — particularly where the power claimed is a delegation of the sovereign power of eminent domain. Hence, where a railroad company is authorized by law only “ to enter upon any land to survey, lay down, and construct its road ” — “ to locate and construct branched roads from the main road, to any town or places in the several counties through which the said roadmaypass” — to appropriate land for “necessary side tracks,” and “a right of way over adjacent lands sufficient to enable such company to construct and repair its road ; ” and such company has located, and is engaged in the construction of its permanent main road along the north side of a town, it is not authorized to appropriate a temporary right of way, for the term of three years, along the south side of the town, to be used as a substitute for the main track while the same is in course of construction along the north side of tho town.
    Error to the court of common pleas of Athens county. Reserved in the district court.
    On the 20th day of March, 1858, the Marietta and Cincinnati Railroad Company filed' in the office of the probate judge of Athens county the following statement:
    “ To the probate judge in and for the county of Athens, and State of Ohio:
    “ The Marietta and Cincinnati Railroad Company, a corporation created in said State, and authorized by law to construct a railroad from Cincinnati to a point, on the Ohio river near Marietta, represents that it has some time since located its main road, upon a line running east and west, north of the town of Athens, in said county, but for the last twelve months or more, has been running and using its road by a temporary way and track around and south of said town, the right of way for which temporary track was granted by the owners of the land through which it runs, for a length of time which, it was at first supposed, would be sufficient to enable said company to complete said main road north of said town, but that said grant has now expired by its own limitation, and said main road has not been completed, and said company deem it necessary, to enable it to complete and maintain said road, to continue to use said temporary way and track until said main road north of said town shall be completed, which will re quire three years or thereabout; and said company states that Olive Currier, of said county, is the owner of four of the tracts of land through and over which said temporary track and way has been laid and used, as aforesaid, which are described as follows, viz: out-lots,No. (34) thirty-four,(38) thirty-eight, (39) thirty-nine, and forty (40), in said town of Athens; and that said company are unable to agree with her or with her agent or attorney upon the compensation to be paid for the right of way through the same, as hereinafter specified, and which the company deems necessary to enable it to complete said road. The said company, therefore, wishes and proposes to appropriate to its use, and to condemn and use, for a term of three years from this day, as a temporary way for the running and use of its road, so much of said land as lies twenty-five feet in width on each side of said temporary track, as heretofore used and located, making and being fifty feet in width for the entire distance of said temporary track through said land, with the right to said Olive to re-enter and resume the same (without deduction and abatement of compensation), whenever said track north of town shall be completed within said three years. And said company proposes and intends to maintain and continue for said term, and subject to said right of re-entry and resumption, the same grades, embankments, excavations, guards and other structures, as heretofore made and used upon said temporary track, and which are specified in the surveys of said company; and to relay such part of the iron rails as have been removed from the same since the expiration of said grant.
    “ The said company, therefore, prays that such proceeding may be had for condemning and appropriating said right of way, and for fixing the compensation to be paid to said Olive Currier therefor as are provided by law.”
    Olive Currier, the owner of the lands sought to be thus appropriated, having been duly notified, and a jury having been duly summoned, she appeared by her counsel on the day set for the hearing of the case, and moved the court to dismiss the proceedings. This motion was overruled; Mrs. Currier excepted, and the case proceeded. The jury assessed the compensation and damages of Mrs. Currier at $322;- upon which the probate court entered judgment, and condemned and appropriated the land claimed in the statement, to the use of the railroad company for three years, in accordance with the prayer contained in its statement.
    To reverse the ruling and judgment of the probate court, Mrs. Currier subsequently filed and prosecuted a petition in error in the common pleas of Athens county,'which, on hearing, affirmed the rulings and judgment of the probate court. To reverse this judgment of affirmance^ she then filed this petition in error in the district court of Athens county, and the same has been reserved for decision here — the said judgment of affirmance being assigned for error.
    
      JP. Van Trump, for plaintiff in error.
    
      Smith, Guthrie, Jewett Weleh, for defendant in error.
   Bbinkerhore, C.J.

The main question made in the case, and which, in our view is decisive of it, is one of corporate power, viz: had this railroad company legal power and authority to make such an appropriation as was sought by and adjudged to it ?

The eighth section of the charter of the Belpre and Cincinnati Railroad Company, under which this company is acting (43 O. L. 280), provides,

“That said company shall have the right to enter upon any land, to survey, lay down and construct said road, and take any materials necessary to the construction and repair of the same; and whenever any lands or materials shall be taken for the construction of said work, and the same shall not be given or granted to said company, and the owners thereof do not agree with said company as to the compensation to be paid therefor, the person or persons claiming compensation, or their agents, etc., may select for themselves an arbitrator,” etc.

The mode of proceeding contemplated in the charter has been superseded by subsequent legislation under the new constitution; but the powers of the company have been thereby in no way either restricted or enlarged.

.The 10th section of the same charter provides that “ said corporation shall have power to locate and construct branched roads from the main road to any towns or places in the several counties through which, the said road may pass.”

Whether this company has accepted the provisions of the act of May 1,1852, “ to provide for the creation and regulation of incorporated companies in the State of Ohio ” (3 Cur-wen’s Rev. Stat. 1877), we are not advised. If it has, it is authorized, by section 10 of that act, “ to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much thereof as may be deemed necessary for its railroad, including necessary side tracks, der pots and workshops, and water-stations, materials for construction, except timber, a right of way over adjacent lands sufficient to enable such company to construct and repair its road,” etc.

These, so far as we can ascertain, are all the statutory provisions having any bearing upon the question before us.

There is no rule more familiar or better settled than this : that grants of corporate power, being in derogation of common right, are to be strictly construed; and this is especially the case where the power claimed is a delegation of the right of eminent domain — one of the highest powers of sovereignty pertaining to the State itself, and interfering most seriously, and often vexatiously, with the ordinary rights of property. Now, in the light of this rule, let us compare the appropriation here sought to be made with the powers granted. The “ work,” that is, the road, contemplated by the charter, is a permanent thing; the lands to be taken for it, it is evident, were designed to be taken permanently, once for all. No such thing as a temporary appropriation of land is, in the charter, expressly mentioned, nor does it anywhere seem to have entered the mind of the legislature. The appropriation of land “ for the construction of the work ” had already been made on the north side of the town, when this temporary appropriation on the south side was attempted. This appropriation did not seek either land or material for the construction of the work which was going forward on the north side of the town. It was not designed as a “ branched road from the main road to any town or place,” nor a “ side ^rack;” but was intended to serve, for the time being, as a substitute for the main track, until the same should be completed. No “ materials ” were to be obtained from it, so far as appears, nor was it intended as a medium for the transportation of material for the construction of the road. It was not a “ way to enable the company to construct its road,” but as a temporary substitute for such road.

We think that by no fair, and much less by any strict construction of the powers granted to this corporation, can the appropriation claimed be brought within them. And, for want of power in the company to make the appropriation which it claimed, the case ought to have been dismissed by the probate court, and its judgment and rulings ought to have been reversed by the common pleas.

Judgment of probate court and court of common pleas reversed, and proceeding in probate court dismissed.

Scott, Sutlief, Peck and Gholson, JJ., concurred.  