
    Platt v. Pennsylvania Company.
    
    
      Constitutional law — Eminent domain — Benefits set off against value of land taken — More land taken than necessary — Occupancy and burden upon surplus by other corporation — Power of appropriating corporation to sell surplus — Estoppel to sell surplus.
    
    Oliver was owner in fee of a lot of land, which extended to the middle of the Maumee river, on the east side of that stream. In February, 1851,-the Lake Shore Kailway Company appropriated for its road running noflth and south, parallel with the river, a strip of ground through such lot one hundred feet in width and twelve hundred feet in length, which left a portion of such lot between the land appropriated and the river, and also a portion on the other side of the strip appropriated. No compensation in money was assessed or paid, the supposed benefits having been set off against the actual damages, as authorized by the constitution. of 1802. The appropriation was made under the act of 1848, “regulating railroad companies” (2 Curwen, 1394, (5 9), by which such a company had the right to enter upon land and “ appropriate so much thereof as may be necessary for its railroad,” and “hold the interest in such lands . . . and the privilege of using any materials on said roadway within fifty feet on each side of the center of such roadway, for the uses aforesaid.” Immediately after such appropriation, the company constructed its railroad on the western half of the strip, and it has continued to operate its road on that half to the present time, but it has never used the other half of such strip. In 1872, the Pennsylvania Company, a corporation under the laws of Pennsylvania, hut not authorized to appropriate lands in Ohio, under our statutes, desiring to have twenty-five feet of the strip so appropriated, being the twenty-five feet lying immediately east of the fifty feet so used by the Lake Shore Company, for the purpose of constructing and operating thereon a railroad, and the Lake Shore Company, after the lapse of more than twenty-one years, having become satisfied that it did not and would not need such strip of twenty-five feet for any purpose, it was agreed by the two companies, that the Pennsylvania Company, for the consideration of $7,500, paid by it to the Lake Shore Company, should have the right to construct and operate, on such twenty-five feet, a railroad, and hold such twenty-five feet for such purpose in perpetuity; and accordingly the Pennsylvania Company constructed and is still operating such road; but there was no appropriation of such twenty-five feet by the Pennsylvania Company, nor was any compensation paid therefor to Oliver. * The track of the Pennsylvania Company is constructed on a different grade from that of the Lake Shore Company, and by reason of this fact that portion of Oliver’s lot lying between the strip appropriated and the river, theretofore.aceessible to Oliver, has become inaccessible to him and comparatively worthless. In an action by Oliver against the Pennsylvania Company, commenced in 1876, to recover damages by reason of the premises, Held:
    
    1. Under the constitution of 1802, which was unlike the present constitution in that respect, where lands were appropriated by a railroad company for its track, supposed benefits might be set off against the value of the land taken, and hence the land might be appropriated without the payment of any money whatever.
    2. The power to take, in invitum, private property for the purposes of constructing and operating a railroad thereon, can only be delegated to a corporation by statute; and as such statute must be strictly construed and followed, the land-owner, by one appropriation pursuant to the act of 1848, above mentioned — where more land was appropriated by such corporation than was necessary for its use — could not (as but an easement and not a fee passed) be subjected to the occupancy and burden, upon such surplus, of another common carrier holding under an attempted grant in perpetuity from the first corporation. In so holding, we recognize fully the right of sale or lease of a road and right of way to another railroad corporation, which shall pass all the rights of the original company to the purchaser or lessee, to the extent contemplated in our legislation or recognized in the decisions of this court, none of which are questioned in this case.
    3. The fact that it became evident, subsequently to an appropriation, that the company has appropriated more land than was necessary for its use, and would not need a particular specified part of the strip appropriated for any purpose for tvhich the appropriation was made, will not authorize the company to sell in perpetuity such surplus part to another railroad company; and where the latter company, pursuant to such purchase, constructed on such surplus a railroad, and operated the same for several years, the land-owner is not authorized to recover by civil action such surplus, or enjoin the operation of such railroad thereon, but he may by action treat the transaction as an abandonment of such surplus by the first company and its appropriation by the last company, and recover damages as upon an appropriation.
    
      4. In such an action the land-owner is not estopped by the condemnation proceedings to show that the first company appropriated more land than was necessary for its use.
    Error, to the District Court of Lucas county.
    The Toledo, Norwalk and Cleveland Railroad Company was incorporated in 1850 (48 Ohio Local L. 316; 49 Ohio Local L. 460), and had so much of the power of eminent domain as was delegated by the act of 1848 (2 Curwen’s Rev. Stat. 1394). The authority delegated by that act (section 9) was, inter alia, to enter upon lands and “ appropriate so much thereof as may be deemed necessary for its railroad, including necessary . . . materials for construction, except timberand the act provided that “it shall he lawful for such corporation to hold the interest in such lands, or materials, thus appropriated, and the privilege of using any materials on said roadway, within fifty feet on each side of the center of such roadway, for the uses aforesaid.”
    William Oliver, to whose rights Harvey P. Platt and Charles H. Scribner, plaintiffs below and in error, have succeeded, was the owner in. fee of a tract of land in Lucas county, in the immediate vicinity of the city of Toledo, known as lot 13, lying on the Maumee river, on the east side thereof, and extending to the middle of the stream. Iu February, 1851, the railroad company, above mentioned, entered upon the tract, and in pursuance of the above section 9, as it is claimed, appropriated, by proceedings under the act, a strip of ground one hundred feet wide and twelve hundred feet long, passing through Oliver’s tract, running parallel with the river, and leaving unappropriated part of his lot on each side of the strip appropriated. This was done without awarding or paying any compensation whatever iu money for the land so appropriated, the anticipated benefits having been, set oft’ against the value of the land and probable damages. And upon the western half of the strip so appropriated, the railroad company constructed its track and commenced to operate its railroad, but shortly thereafter that company was, in due form of law, it is said, merged in and consolidated with the Lake Shore and Michigan Southern Railway Company, which latter company succeeded to the rights, and occupied the position, in ' all respects, of the former company m relation to the lauds so appropriated, and. it continues to occupy its road as such successor. But neither company -occupied, at any time, the eastern half of the strip so appropriated, or any part thereof; and, notwithstanding such appropriation, and the use of such half of the strip appropriated, Oliver and those holding under him were not at any time obstructed in the use of the lot, or any part thereof, and the lot of the plaintiffs was very valuable.
    After the Toledo, Norwalk and Cleveland Railroad Company, and its successor, the Lake Shore and Michigan Southern Railway Company, had occupied the western half of the strip of one hundred feet, as aforesaid, for more than twenty-one years, and after it had become evident to the latter company, that twenty-five feet of the appropriated strip, lying immediately east of a line through the middle of the one hundred feet, would not be needed by the latter company for any purpose, and the Pennsylvania Company, a corporation under the laws of Pennsylvania, doing business in Ohio, but having no power under the statutes of this state to appropriate lands to its uses, desiring such strip of twenty-five feet for the purpose of constructing and operating a railroad thereon, it was agreed between those companies, in September, 1872, evidenced by an instrument of writing dated January 24, 1874,'that in consideration of $7,500 paid to it by the Pennsylvania Company, and other valuable considerations, the Lake Shore Company should transfer to the Pennsylvania Company the strip of twenty-five feet aforesaid, and the latter company should hold the same in perpetuity for such purposes, and should also have other rights and privileges in the agreement specified; and, pursuant to the agreement of 1872, the Pennsylvania Company entered upon such twenty-five feet, excavated for its track in and upon the same, and constructed thereon its track on a different grade from that of the Lake Shore Company, and used and occupied, and continues to have the exclusive use and control of the same for. railroad purposes, against the will of the plaintiffs, and without having acquired such right from the plaintiffs, or those under whom they claim, by purchase, condemnation, or otherwise than as above stated.
    On June 21, 1876, Platt aud Scribner, above named, brought suit, in the court of common pleas of Lucas county, against the Pennsylvania Company, to recover damages by reason of the premises. In their petition they say, among other things: “That portion of said lot so abandoned to and occupied by the defendant, as aforesaid, is of the value of ten thousand dollars. . . . But for the wrongful and unlawful acts of the defendant herein above complained of, said property rights and privileges of the plaintiffs would be of great value. . . . The excavations made by the defendant, as aforesaid, are of great depth, and extend entirely across said lot thirteen, at the westerly side of the River road, so called, and are within a short distance of said river front of the plaintiffs for said distance of about twelve hundred feet; that said railroad track of the defendant is constructed upon and operated along that portion of said lot so excavated, as aforesaid, at a different grade from that of the tracks of said Lake Shore and Michigan Southern Railway; and by reason of the premises aforesaid, all communication between said river front and the remainder of plaintiffs’ said premises, is cut off and destroyed; that, in consequence of such wrongful and unlawful acts of the defendant, and the proposed maintenance thereon of defendant’s liue of railway as aforesaid, the usefulness and value of the plaintiff's’ river front, and of the remainder of their premises, have been and are greatly injured, impaired, and depreciated; and the plaintiffs aver that they have sustained damages by reason of the premises aforesaid in the sum of fifty thousand dollars; wherefore plaintiffs pray judgment against the defendant for the sum of sixty thousand dollars, and for all proper relief.”
    The defendant demurred to the petition,.and the court having sustained such demurrer and dismissed the action, the district court affirmed the judgment. These decisions were made, however, without argument, and simply with a view to a determination of the questions of law in the supreme court. A petition in error having been filed, the question here is the same presented in the courts below, namely, whether the petition filed in the court of common pleas contains facts sufficient to constitute a cause of -action. That question having been considered, the answer to it, and the steps by which the conclusion was reached, will be stated in the opinion.
    The contract referred to in the petition is as follows: “Whereas, the Pennsylvania Company has located and constructed the Toledo and Woodville Railroad, along the east bank of the Maumee river, for some distance on the right of way of the Lake Shore and Michigan Southern Railway Company, and also across the main line of the said Lake Shore and Michigan Southern Railway Company, above grade at a point five hundred and fifty-three (553) feet east of the Lake Shore and Michigan Southern Railway Company’s bridge across the Maumee river, and across to dock at grade at station number four (4) of dock track numbering, as shown on map accompanying this agreement, all of which thus far has been done in pursuance of an understanding between the parties. And, whereas, it has been ■finally settled between the parties, that the said Pennsylvania Company will pay, and the Lake Shore and Michigan Southern Railway Company will recéive, the sum of seven thousand five hundred ($7,500) dollars in full satisfaction for the privileges hereby by it (the reserve claim for damages being hereinafter mentioned): therefore it is agreed by and between the parties :
    “ That for the consideration aforesaid the Lake Shore and Michigan Southern Railway Company permit and license the said Pennsylvania Company to occupy for the use of its (the Toledo and Woodville) railroad, the following described portion of its right of wajr, to wit: That part of the east fifty (50) feet of the Lake Shore and Michigan Southern Railway Company’s right of way to ‘old depot ground’ on the east side of the Maumee river known as its dock track, and shown on'a map accompanying the agreement, described as follows: Beginning at station three plus fifty (3 -|- 50) of dock track numbering, said station being three hundred and fifty (350) feet westerly from a stone monument being at station ‘O,’ as shown on map of survey, made by J. B. Marston, for re-establishing said right of way; thence easterly at right angles from said station three plus fifty (3 + 50), twenty-five (25) feet; thence northerly, taking a strip of land twenty-five (25) feet in width, adjoining and parallel with the center line of right of way of said dock track, a distance of eighteen hundred and fifty (1,850) feet from station three plus fifty (3 + 50), to station twenty-two of dock track numbering; thence northerly on a two-degree, fifteen-minute (2° 15') curve to the right, taking a strip of land twenty-five (25) feet wide, and for a distance of nine hundred and fifty (950) feet from station twenty-two (22) to station thirty-one plus fifty (31 + 50) of dock track numbering — where the east line of said twenty-five (25) feet strip of land intersects the east line of right of way of said dock track; the west line of said twenty-five (25) feet strip of land being twenty-five (25) feet easterly of and at right angles to said station thirty-one plus fifty (31 -f 56); thence northerly from said point on west line of said twenty-five (25) feet strip of land on two degree fifteen minute (2° 15') curve, continued two hundred (200) feet to a point thirty-seven (37) feet easterly of and at right angles to station thirty-three plus fifty (33 -j- 50) of dock track numbering; thence in a straight line northerly two hundred and forty-five (245) feet to a stake standing in the south-east corner of ‘ old depot ground/ said stake being fifty (50) feet easterly of and at right angles to station thirty-six (36) of dock track numbering, being in the east line of said dock track right of way, as shown on accompanying map; thence south-westerly on said east line of said dock track right of way to the place opposite station thirty-one plus fifty (31 -f- 50) where the east line of the twenty-five (25) feet strip of land above mentioned intersects the east line of dock track right of way; thence westerly twenty-five (25) feet to the point heretofore mentioned as being twenty-five (25) feet easterly of and at right angles to said station thirty-one plus fifty (31 + 50) of dock track numbering. Also one other piece or parcel of land, described as follows: Beginning at a stake standing in the south-east corner of ‘ old depot grounds/ which stake is fifty (50) feet easterly of and at right angles to station thirty-six (36) of dock track numbering; theuce north-easterly to the east line of ‘ old depot grounds’ eleven hundred and seventeen (1,117) feet to a stone monument on the line between lots three (3) add four (4), as shown on accompanying map; thence north on said line between lots three (3) and four (4), one hundred and fifty (150) feet to a stake standing on the bank of the Maumee river at ordinary low-water mark; thence southwesterly twelve hundred and thirty-eight (1,238) feet to the place of beginning, being a triangular piece of land taken from the east side of ‘ old depot ground/ as shown on map accompanying this agreement. The amount of land con-tamed in all the above described is three (3) acres, more o* less.
    “The property intended to be conveyed is further described and exhibited on the map accompanying this agreement. The center line of right of way of the Lake Shore and Michigan Southern Railway Company main line, and also of dock track, is indicated by a heavy red line, and the right of way ceded by the Lake Shore and Michigan Southern Railway Company to the Pennsylvania Company is indicated by being colored blue.
    “ It is further stipulated that the said,Pennsylvania Company shall at all times, at its own expense, maintain and keep in repair said crossings at said dock track; also, in the event that another railroad company shall build its road on the other adjoining twenty-five (25) feet of said right of way belonging to said Lake Shore and Michigan Southern Railway Company, the said Pennsylvania Company agrees that it will permit it on equitable terms to use one or both of the crossings by it constructed over said dock track, so that said Lake Shore and Michigan Southern Railway Company may not be compelled to submit to more than two crossings at that place by one or both of said roads.
    “And it is further stipulated that inasmuch as consequential damages may result to the Lake Shore and Michigan Southern Railway Company by reason of the crossing of its said dock track at grade, for which no compensation is herein provided, excepting only for the land taken, the said Lake Shore and Michigan Southern Railway Company has not ana does not waive its right at any time hereafter to demand and enforce such claims, provided it shall finally be decreed by the supreme court of Ohio that the company whose track is crossed at grade by another railroad shall be entitled to damages for the expense thus entailed upon it.
    “It is further agreed that it it shall become necessary to employ watchmen to guard said crossing, they shall be employed and paid by the said Lake Shore and Michigan Southern Railway Company, and the one-half of the expense thereof shall be reimbursed by the said Pennsylvania Company. And the question of the liability of the said Pennsylvania Company to the Lake Shore and Michigan Southern Railway Company for its share of said expense shall abide the clecisiou of the supreme court as aforesaid.
    “ In witness whereof, the said Lake Shore and Michigan Southern Railway Company, by its-, and the Pennsylvania Company, by its vice-president, have hereunto set their names and affixed the seals of their respective companies, this twenty-fourth day of January, a. d. 1874. Attested by the respective secretaries.
    “ The Pennsylvania Company,
    [seal of pa. co.] “ By William Thaw, Vice-President.”
    
    
      “ Attest:
    “ W. H. Baines, Secretary.”
    
    The insertion of the map or plat referred to in the petition and contract would not aid in determining the 'case, and therefore it is omitted.
    
      Scribner, Hurd. § Scribner, and Pratt $ Wilson, for plaintiffs in error,
    cited and commented on the following authorities : Grand, Junc. etc. Co. v. Middlesex, 14 Gray, 553; S. P. R. R. Co. v. Reed, 41 Cal. 256; Heard v. Brooklyn, 60 N. Y. 242; s. c., sub nom. Strong v. Brooklyn, 68 N. Y. 1; Brice’s Ultra Vires (Eng. ed. of 1874), 83, 252; Carty v. Shields, 5 Week. Notes, 241; Onthank v. Lake Shore, etc. Ry., 16 Alb. L. J. 428 ; 17 Alb. L. J. 319; Hatch v. Railroad, 18 Ohio St. 92; Lance’s Appeal, 55 Pa. St. 16; Proprietors, etc. v. Railroad, 104 Mass. 1; Pierce on Railroads (1881), 230; Malone v. Toledo, 28 Ohio St. 643; s. c., 34 Ohio St. 550; Junct. Rail. v. Ruggles, 7 Ohio St. 1; Cooley’s Const. L. (4th ed.), 697; Toledo, etc. R. Co. v. Daniels, 16 Ohio St. 390, 396 ; Bowersox v. Commisiioners of Seneca Co., 20 Ohio St. 496; Railroad Co. v. Bruce, 10 Am. & Eng. R. Cas. 1, 13; Kansas Cen. R. Co. v. Allen, 22 Kan. 285 ; 9 Vroom, 28; 3 Sm. & Gif. 283.
    J. T. Brooks, for defendant in error,
    commented on the cases above, and also cited and commented on the following authorities and statutes: Chagrin Falls case, 2 Ohio St. 419; Cumminsville case, 14 Ohio St. 547; Symonds v. Cincinnati, 14 Ohio, 147; Kramer v. Railroad, 5 Ohio St. 140; Pierce on Railroads, 159; 49 Ohio L. 94; S. & C. 325; 66 Ohio L. 32, 83.
    
      
      
         This case was decided while Hon. W. W. Johnson was Chief Justice.
    
   Qkey, J.

The contention of the Pennsylvania Company is that the Lake Shore Company had the right to take and hold the whole of the strip of one hundred feet through the Oliver lot, although it had no occasion to use the east half of it, or any part thereof, at any time; that, after holding such east half for more than twenty-one years, and after finding that it would never need the same for any purpose, the Lake Shore Company might lawfully, not merely lease temporarily, but sell, in perpetuity, one-half of such unused strip, that is, a strip twenty-five feet, wide, to' the Pennsylvania Company, and apply the purchase-money ($7,500) to its own use; that the Pennsylvania Company might thereupon construct and operate, on a different grade, a railroad on such strip of twenty-five feet, cutting off' thereby the lot-owner’s access to the different parts of his lot, which, until then, had been free and unobstructed; and that all this might be done without making to the owner of the lot any compensation whatever, except such as he received in assumed benefits, at the time of the appropriation of the strip of one hundred feet, in February, 1851.

It would be very surprising to find a decision sustaining a claim so palpably and flagrantly unjust, and we will venture to say that no such case can be found. Not only can no such case be found, but the plainest principles and the clearest authorities absolutely forbid the allowance of any such claim. In the leading case of Giesy v. Railroad, 4 Ohio St. 308, 328, Ranney, J., said: “The quantity of land that may be appropriated for this purpose is left, it is true, very indefinite. It is clear, however, that only so much can be taken as is necessary to be used in that manner. And with the power of the courts to prevent abuses, and the certainty that it can be held only so long as it is thus used, and can not be diverted, to any other purpose, there may be little danger ot attempts to get too much.” “It may, however, be safely asserted,” said Andrews, J., “ that the acquisition of lands for the purpose of speculation or sale, or to prevent interference by competing lines or methods of transportation, or in aid of collateral enterprises remotely connected with the running or operating of the road, although they may increase its revenue and business, are not such purposes as authorize the condemnation of private property.” Rennssalaer, etc. Ry. Co. v. Davis, 43 N. Y. 137, 146. “ The surplus,” says Mr. Mills, “ beyond the amount required by the public, is .not properly taken, not being needed for the public use, and the owners are entitled to such surplus.” Em. Dom., § 23. In Swinney v. Ft. Wayne, etc. R. Co., 59 Ind. 205, it appeared that an appropriation had been made under an Indiana statute, which is the same as our act of 1848, permitting the company to enter upon lands, and, by proceedings in court, appropriate “ so much thereof as may be deemed necessary for its railroad.” The court held: “A railroad company has no authority to appropriate land for the use of another company,” and “ there is no authority of law for several railroad companies to agree that one of their number shall proceed to appropriate land for the purpose of afterward dividing it for the-benefit of all; each company must proceed for itself.” In Mahoney v. Spring Val. etc. Co., 52 Cal. 159, it was held : “A water company having commenced such proceedings, can not sell and transfer its right to prosecute them, or to take private property, to another water company, nor can the latter purchase such right. Such attempted sale and purchase, on the part of either corporation, is ultra vires in the extreme sense, and is a fraud on the court or judicial officer before whom the proceedings are pending, and whose judgment is employed in determining the necessity of the appropriation to the public use represented by the corporation petitioner, not its necessity to a use represented by another corporation.” And see Taylor on Corp., § 166; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123.

The Lake Shore Company is not a party, and hence there can be no adjudication in this suit which will operate as an estoppel as to that company; but the Pennsylvania Company is a party; it has accepted a conveyance from the Lake Shore Company; hence it may be estopped as effectually as if the Lake Shore Company had been made a party. The legal title to the strip of one hundred feet remained in Oliver, and is now in the plaintiffs. The Lake Shore Company - acquired an easement only, though an easement in perpetuity, and where there is an abandonment of such easement, the interest acquired reverts to the owner of the fee. Here the Pennsylvania Company is es-topped to deny that there was, not a forfeiture, but an abandonment of the easement, first, by non-user of the strip of twenty-five feet in question for more than twenty-one years; and, secondly, by the conveyance accepted by the Pennsylvania Company; and in such case, where the interest, as here, was an easement, it is not merely for the state to complain, but the owner has his remedy directly. Sometimes this remedy may be to compel condemnation under the statute; but the Pennsylvania Company is a foreign corporation, without power of condemnation. Sometimes the remedy may be by action to recover possession, or to restrain the running of trains until compensation is made; but where the plaintiff has stood by, as may have been the case here, until the improvement was made, either of such remedies would be harsh. Under the circumstances disclosed in this petition, an action to recover as upon appropriation seems to be the proper remedy, and consideration of the following cases will show, as well that such action is warranted, as that here was a clear case of abandonment. Heard v. Brooklyn, 60 N. Y. 242; s. c., sub nom. Strong v. Brooklyn, 68 N. Y. 1; Washington Cem. v. Railroad, 68 N. Y. 591; Haldeman v. Railroad, 50 Pa. St. 425; Lance’s Appeal, 55 Pa. St. 16, 25; Pittsburgh, etc. R. Co. v. Bruce, 102 Pa. St. 28; s. c., 10 Am. & Eng. R. Cases, 1, and note; Hatch v. Railroad Co., 18 Ohio St. 92; Wagner v. Railroad, 22 Ohio St. 563, 579; Goodin v. Cincinnati, etc. R. Co., 18 Ohio St. 169 ; Atlantic & G. W. R. Co. v. Robbins, 35 Ohio St. 531, 538; Corwin v. Cowan, 12 Ohio St. 629; Longstreet v. Harkrader, 17 Ohio St. 23; Taylor v. Railroad, 38 N. J. Law, 28 ; Oregon C. R. Co. v. Baily, 3 Oregon, 164, 176; Prather v. Jeffersonville, etc. R. Co., 52 Ind. 16; Terre Haute, etc. Co. v. Rodel, 89 Ind. 128; People v. Met. Tel. Co., 11 Abb. N. C. 304; Grand Rapids, etc. Co. v. Heisel, 47 Mich. 393; Proprietor of Locks, etc. v. Railroad, 10 Cush. 385; Buckingham v. Smith, 10 Ohio, 288; Cooper v. Williams, 5 Ohio, 391; McArthur v. Kelly, 5 Ohio, 139; Jordan v. Overseers of Dayton, 4 Ohio, 294; Moorhead v. Little Miami R. Co., 17 Ohio, 340; Kansas Ry. Co. v. Allen, 22 Kan. 285; U. S. v. Great Falls Man. Co., 112 U. S. 645 ; Hopkins v. Railroad, 79 Mo. 98; Bostock v. North Staffordshire R. Co., 3 Smale & Gif. 283, 292; 26 Moak Eng. Rep. 404.

Counsel for the Pennsylvania Company, in answer to this view and such other reasons as the plaintiffs have assigned for recovery, place much reliance on Junction Railroad Co. v. Ruggles, 7 Ohio St. 1, and Hatch v. Cincinnati and Indiana R. Co., 18 Ohio St. 92. But in fact these cases support the claim of the plaintiffs. In the first ease, it appeared that Ruggles executed to the Ohio Railroad Company an instrument in ■writing, under seal, agreeing that, if the company would locate its road through any lands possessed by him, he would quitclaim to it so much .land as the company was authorized to take, to wit, a strip one hundred feet in width through such lands for the purpose of location and construction of the road, with the right to immediate possession, and of taking and converting to their own use stone, gravel, etc. The company located its road though the lands of Ruggles, but before the road was completed, the state, which had loaned its credit to the company, took possession of and subsequently sold the road, under the act of 1837 and a joint resolution passed in 1845. Ebenezer Lane became purchaser, who conveyed his title to the Junction Railroad Company, and that company proceeded to build the road through the lands of Ruggles, on the strip so located by the Ohio Railroad Company. Ruggles objecting and threatening to bring suit, the Junction Railroad Company commenced an action and obtained an injunction restraining him from interfering with the construction of the road, aud this court made the injunction perpetual. Stress is placed by the court, and properly placed, on the fact that the rights, as against Ruggles, were acquired, not by invoking the power of eminent domain, but by contract, aud the case really turned on the assignability of the contract, in view of the terms of the agreement, the legislation, and the existing facts.

In Hatch v. Cincinnati, etc. R. Co., 18 Ohio St. 92, it appeared that in 1840 the Whitewater and Cincinnati Caual Company constructed a canal in Hamilton county, from Cincinnati to Harrison, passing through Hatch’s farm, and appropriating and using for such purpose a strip of land of an average width of about fifty feet. The canal was used and operated until 1863, when the Cincinnati and Indiana Railroad Company undertook to appropriate for its railroad track the land so used by the canal company, paying, by agreement between the canal company and railroad company, to the former, $50,000 therefor, and the railroad company took additional land belonging to the plaintiff, so that the strip of ground it occupied was about sixty feet wide, •and it constructed and operated a railroad thereon, but it made to Hatch no compensation additional to that which he received from the canal company. Hatch brought suit -against the railroad company, seeking to recover damages as upon an appropriation. This court doubted the right of the railroad company to appropriate the canal in invitara, but regarded the proceeding, so far as it affected the two companies, as, in effect, a sale, and as the canal company made no complaint, the court was unwilling to say the appropriation proceeding was a nullity, and it was upheld as against Hatch. As the canal was a servitude upon the lands of Hatch, unrestricted in duration, and furnished means of conveying freight of every sort, and passengers, from one point to another, the court held that the change of the mode of conveyance from canal to railroad was, under the circumstances, not such change of use — not such abandonment — as entitled Hatch to compensation a second time for the land actually taken and used by one common carrier. It was the case of one common carrier occupying the identical strip of ground, and all of it, which had been occupied by another common carrier, and the burden was the same before and after the change; there was only one common carrier at any time. If the company which condemned the land and made compensation to Hatch had been a railroad company, and had built its road, no doubt another railroad company succeeding to its rights by purchase would not have been required to make compensation to Hatch, for he would thus be receiving compensation twice for the same thing; and the court held, the circumstance that the first company was a canal company and its successor a railroad company, would make no difference. But this court further held, not only that Hatch was entitled to compensation for the additional laud taken, but that he was entitled to compensation for the additional servitude to which he was subjected, the latter point decided being expressed as follows: “Where an entire tract of •land is cut asunder by an appropriation of an easement upon it by a canal company, for the purpose of a canal, and this easement is afterward transferred by the canal company to a railroad company for the purpose of a railroad; and the latter, in the construction of its railroad, throws up embankments or excavates cuts across a common public highway, skirting the tract, and constituting the only convenient medium of access between the parcels into which the tract has been, thus severed, the increased inconvenience and danger of access thus occasio'ned between the two parts of the tract are peculiar to the owner,of the tract in the use of his property, not common to the public at large, and for this increase of inconvenience and danger, he is entitled to' compensation.”

As there is nothing in any ease, certainly nothing in either Junction Railroad Co. v. Ruggles, or Hatch v. Railroad, which militates against a recovery by the plaintiffs, this opinion might well end here. But other well-settled principles lead to the same conclusion.

1. The power granted by statute to the condemning company was to take and hold an easement for “ its railroad;" and such statutes must be strictly construed. And this is not a rule to be asserted and then disregarded, but to be rigidly enforced. Lane, C. J., in Kemper v. Turnpike Co., 11 Ohio, 392; Birchard, J., in Moorhead v. Railroad, 17 Ohio, 340, 350; Bartley, J., in Kramer v. Railroad, 5 Ohio St. 140, 147; Welch, J., in Toledo, etc. R. Co. v. Daniels, 16 Ohio St. 390, 396; McIlvaine, J., in Bowersox v. Watson, 20 Ohio St. 496, 588; Johnson, J., in Railroad Co. v. Furnace Co., 37 Ohio St. 321, 329. And see Straus v. Eagle Ins. Co., 5 Ohio St. 59; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123; Pittsburgh, etc. R. Co. v. Bruce, 102 Pa. St. 23; Green’s Brice’s Ultra Vires (2d ed.), 380; Taylor on Corp., § 163.

2. Whei’e, as here, the interest acquired is only an easement, the owner of the fee retains every right in the laud appropriated, not inconsistent with the paramount authority of the company freely and unobstruetedly to build, repair, and operate its railroad, and use therefor materials fairly within the condemnation. In Goodtitle v. Alker, 1 Burr. 133, it was said of a way, that “ the owner of the soil has right to all above and under ground, except only the right of passage for the king and his people.” In Julien v. Woodsmall, 82 Ind. 568 (approved 91 Ind. 137), it was held that ice formed on the right of way of a railroad belongs to the owner of the soil, who may maintain trespass against a person who removes it without his consent. And the owner of the fee is not only owner of the minerals under the land appropriated, but also owner of the soil, gravel, trees, and herbage, except as needed by the company in constructing, repairing, and operating its road. Kan. Cen. R. Co. v. Allen, 22 Kan. 285; Taylor v. N. Y. etc. R. Co., 38 N. J. L. 28; Preston v. Dubuque R. Co., 11 Iowa, 15; Aldrich v. Drury, 8 R. I. 554; Hasson v. Oil Creek Co., 8 Phila. 556; 10 Am. & Eng. Rail. Cas. 1-14. And where, as in this ease, the right of way passes through, a tract of land, leaving part of the tract on each side of the portion appropriated, the question how far access to the different parts of the lot will be affected, is always considered. Hatch v. Railroad,, 18 Ohio St. 92. And the owner of the fee is ordinarily not deprived of access to the different parts of his lot through which a railroad passes.

a. If the lot is of sufficient size, there may be a crossing thereon constructed pursuant to the statute.

b. There may be a crossing by means of a bridge, a tunnel, or a road, under conventional arrangement.

c. There may be such use of the land, acquiesced in by the company, as will amount to license to cross. Taylor’s Corp., § 371.

Hero the authority under which Oliver had access to the different parts of his lot does not appear, but it is shown by the petitiou that such access existed, and that it was unobstructed, notwithstanding the Lake Shore Company was operating its railroad; that such access was a valuable right; and that it was destroyed by the Pennsylvania Company by constructing and operating its road. We may well say that the access which the plaintiffs had, from one part of their lot to the other, existed lawfully, and that it was wrongfully destroyed by the defendant.

3. Under the constitution of 1802, which was in force when this appropriation was made, benefits could be estimated and set off' against the value of lands and damages, so as to permit the land to be taken without the payment of a dollar in money. That was done in this case. True, Judges Scott, Ranney, Bartley, and Brinkerhoff, and perhaps others, were of opinion that this was an erroneous construction of the constitution, but it was acquiesced in until it had become a rule of property, and hence this court has been and is unwilling to disturb it. See Kramer v. Railroad, 5 Ohio St. 140, 147; Corwin v. Cowan, 12 Ohio St. 629, 633. Here we must assume the court took into consideration the burden as well as the benefit which one common carrier, namely, the Toledo, Norwalk and Cleveland Railroad Company, operating, without limit in time, its trains through Oliver’s lands, would be to him, and that the benefits were set off against the value of the land taken and damages sustained. Oliver agreed to assume the burden of one common carrier, and no more. In point of fact, as appears from the petition, the construction and operation of that road did not interfere with Oliver, in the use of the different parts of his lot, and this, we must assume, was apparent to the court when the condemnation was made. As the railroad company was only authorized to condemn for its railroad, the court could only take into consideration the burden which would be imposed by the construction of that road ; and as the Pennsylvania Company imposes a new burden, it is evident that Oliver and those holding under him have never been compensated for that burden, or, in other words, ■when such additional burden is considered, they have not been compensated for the land taken. If the construction of the Pennsylvania Company’s railroad on plaintiff’s land benefited them in any way, it is not shown, and it is quite apparent, that, by reason of such additional road, plaintiffs are greatly injured.

4. To be sure, it is urged that this was an appropriation of the one hundred feet for railroad purposes generally. Rut that is to reverse the rule of construction above stated; it is to assert that the Toledo, Norwalk and Cleveland Railroad Company took, not a mere easement for its road, but a fee for railroad purposes generally, with power not only to use, but to sell parcels of the land condemned to a number of railroad companies. In view of our statute and the decisions already cited, there is not the slightest authority for any such claim. An easement for one road, as we have seen, was acquired, and nothing more; and the statute contemplates only that. True, there may be a sale, where the statute authorized it; there may, as we have seen, be a change of use; one railroad company may lease its road to another; there may be certain running arrangements between roads, enforced either by statute, or carried out conventionally. It is not our purpose to define the limit of the power of railroads in any of these particulars, but is sufficient to say that this does not militate in any way against any thing that I have said.

5. Defendant in error suggested that objection should have been made, at the time the appropriation proceeding was determined, to the quantity of land taken, and that the objection was waived by failure to insist on it at that time. The point has not been pressed for the obvious reason that it is plainly untenable. Doubtless the company was, in its inception, like every similar railroad enterprise, one of “ great expectations,” and Oliver, as well as the promoters of the company, may have been honestly misled as to the quantity of land which the company, in view of its business, might require in the. future. Neither Oliver, nor those holding under him, have done any thing to mislead the companies, or either of them. Even if he had suggested to the court, in 1851, that the company was taking too much land, how could he have shown that his statement was true ? He was bound to do nothing of the kind. On the contrary, as Judge Ranney shows in Giesy v. Railroad, he might well assume that when it was shown that too much was taken — that when time had demonstrated the company only needed one-half of the quantity taken — the court could interfere in behalf of the owner and set the matter right.

Without pursuing the subject further, we hold the petition presents a clear case for relief in the way stated, and hence the judgments in the courts below must be

Reversed.

McIlvaine, J.,

dissenting: The following are the only propositions of law involved in the decision of this case, and, in my opinion, the judgment below should be affirmed.

1. A right of way appropriated by a railroad company, as necessary for the use 0/ its railroad, is transferable to another company for like uses.

2. The transferee company is entitled, as against the owner in fee, to all the rights, privileges, and immunities acquired by the appropriating company.

3. The right to impose burdens upon the land appropriated is subject to the same limitations in the posession of the transferee as of the appropriating company; on the other hand, the right to impose burdens on the land passes to the transferee to the full extent possessed by the appropriating company.

4. The right to transfer the entire right of way, with all tbe privileges acquired by the condemnation, includes the right to permit and license another railroad company to occupy for the use of its road a part of the right of way.

5. The use of such part by the licensee in the same manner it could have been used by the licensor is not an addiditional burden on the land for which the owner in fee is entitled to additional compensation.

6. The quantity of land embraced in the right of way is fixed and determined, as between the parties, by the judgment of condemnation.

7. The non-user of those portions of the right of way, at the sides of the track of the road, is not an abandonment thereof to the owner in fee.

Thefirst and main proposition is admitted tohe the law by the majority of the court in the decision of this case. It is so declared by the courts of most of the states of this Union, and by none more0 emphatically than by the supreme court of Ohio. In the Junction Railroad Co. v. Ruggles, 7 Ohio St. 1, it was decided, in a case where the appropriating company had sold its right of way to auother company before it had constructed a road thereon, that the sale was valid and the title passed. In Hatch v. Cincinnati and Indiana Railroad Co., 18 Ohio St. 92, a right of way appropriated by a canal company, for canal purposes, was sold to a railroad company for railroad purposes. The sale was maintained on the ground that the purposes of the condemnation by the canal company, and the uses to which it was transferred were similiar, to wit, a public highway. The contracting parties to the transfer, having power to contract, special legislation to transfer this species of property was not relied on. The transferability of the right of way was based on the inherent nature of property.

A right of way for public uses, whether held as an easement or in fee, is property, and as such, in the absence of restraining statutes, is transferable. In the cases cited, the right of way was a perpetual easement, but in Malone v. City of Toledo, 34 Ohio St. 541, where the fee of the land condemned for a canal passed under the statute, it was held that the transferee took it discharged from any limitation as to uses. Of course, where the right of way is for a public use, and the right is of the nature of a perpetual easement, the transferee takes it subject to like uses. There is no doubt entertained, so far as I know, as to the correctness of the first proposition.

As to the second proposition, that the transferee of a right of way for railroad purposes is entitled, as against the owner in fee, to all the rights, privileges, and immunities acquired by the appropriation proceedings, it is hardly necessary to say a word. It is of the very essence of the transferability of property that the purchaser should succeed to all the rights of the vendor, where the contract of sale imposes no limitations, and none are imposed by the positive law of the land. It seems to me incredible that the rule should be otherwise, and it is not contended that the positive or statutory law of this state imposes any barrier to the transfer attempted to be made in this case.

The third proposition rests on the principles underlying the second. Of course, a vendor of property, as a general rule, can not vest any right or title in the purchaser which he did not himself possess; but where no conditions or limitations are imposed by the contract of sale, and no rule of law forbids it, the property passes to the purchaser as fully subject to his control and dominion, as it formerly was to the control and dominion of the vendor. These views are elementary.

The fourth proposition, that the right to transfer the entire right of way, with all the privileges acquired by the condemnation, includes the right to permit and license another railroad company to occupy for the use of its road a part of the right of way, appears to me to be logically and mathematically correct, as the whole necessarily includes all its parts. As an abstract proposition this would probably not be gainsaid.

The point of difference which divides the court is, in my opinion, involved in this proposition, but as it is made more patent and circumscribed in the next, I will proceed to it.

Proposition 5. The use of such part by the licensee, in the same manner it could have been used by the licensor, is not an additional burden on the laud for which the owner in foe is entitled to additional compensation.

As I understand the decision, it is based chiefly on the ground that, by the proceedings of condemnation, the only burden imposed on the land condemned was the right to construct and maintain a single railroad, to wit, the road of the appropriating company, and it is claimed that the construction of a railroad track, and its use, by another company, to be operated at the same time as a separate road, is an ádditional burden on the land, and an invasion of the rights of the owner in fee, for which he is entitled to compensation or damages. It is admitted, as I understand, that a successor, by purchase, of the entire interest of the appropriating company, may operate the road constructed by its vendor, and enjoy the right of way to the full extent that it could have been enjoyed or used by such company. It is not denied, as I understand, that the appropriating company or the successor to all its rights may grant to another company a right of way across its own, at right angles or at any other angle, but it is claimed that a grant or license to another company to build a track parallel with its own, and on the same right of way, is in excess of the rights acquired by the judgment of condemnation. The position assumed in the decision is, I think, inconsistent with the foregoing propositions and former adjudications of this court.

■ I admit that any encroachment on lands not embraced in the right of way, by the appropriating company or its successor, would be a violation of the rights of the owner in fee; but by the condemnation the whole of the land embraced in the right of way was devoted to railroad purpose in perpetuity, and full compensation therefor was awarded to the owner in fee. It is true that, at the time these lands were condemned, the law allowed resulting benefits to other lands to be set off agaiust compensation for the land taken and injuries to other lands; but whether the compensation for land appropriated be made by resulting benefits, or in monej’, as is required by the present constitution, makes no difference in the character of the rights acquired by the approjjnating company. In either case, the owner is compensated to the full value of the property takeu. As a result, the use of the entire right of way is appropriated to public purposes. The entire right of way was subject to be occupied by tracks and side-tracks, at the will of the appropriating company, without injury to the rights of fhe owner in fee, whether he contemplated such usé or not. In law, such use was contemplated; such were the burdens for which compensation was made; and if the right of way be transferable, as we lmve shown it is, the transferee, as well as the appropriating company, may construct additional tracks to the full capacity of the right of way, without imposing any additional burden on the land for which the owner iu fee is entitled to additional compensation. This being so, upon what principle of right or of construction can it be said that the owner in fee may claim additional compensation from a licensee of a part of the right of way for an act that would be perfectly j ustifiable if done by the licensor? If it be answered that the statute which authorized the condemnation limited it to the use of the road of the appropriating company, it is sufficient reply to say that it is settled that the limitation referred to does not prevent the transferability of the property in whole or in part.

But it is said that independent of the transferability of the property, the defendant in error has placed burdens on the land in excess of those which the appropriating company acquired the right to do ; that is to say, the transportation of trains, passengers, and freight of the defendant, is in excess of the trains, passengers, [and freight to which the right of way was appropriated. This objection applies equally to transportation over the track of the old company, as over the track constructed by the defendant.

In Hatch’s case, supra, p. 120, it is said : “ The exercise of the right of eminent domain is primarily and mediately the act of the state; and corporations to which it has been delegated and by which it is immediately exercised, are but instrumentalities of the state, although they may have, and generally do have, corporate interests intermingled with, and growing out of, the exercise of this sovereign prerogative of the state.” The condemnation of private property for a public highway is the act of the state, subject to the private rights of the corporation to which the power was delegated. These private rights are granted by the state'in consideration that the corporation compensates the owner of the land for the right of way. The highway is dedicated by the state, and neither the corporation nor the owner in fee can divert the use., The owner of the fee can not, because he has been compensated in full for his interest in the land. The corporation can not, because it is the creature and agent of the state. The public use is equal to the capacity of the light of way. It is no concern of the owner of the fee what instrumentalities the state employs or permits to aid in utilizing the uses of the public highway. It may limit the use to a single corporation or may employ many corporations. This question concerns only the state and the appropriating company, and the latter only to the extent it has acquired private rights in connection with the public rights, by reason of having made compensation to the owner of the land for the right of way.

The defendant has obtained the consent of the appropriating company, and it has obtained the tacit, if not express consent of the state, and, as we have said, the owner of the fee, having received full compensation, has no right to complain. In other words, if the owner has received full compeusatson for the land, what further compensation is he entitled to for this supposed additional burden on the land, embraced in the right of way ?

These views are consistent with, and indeed underlie the policy of the state as expressed by its legislation from its earliest history in railroading. On the 3d of March, 1851, probably before the judgment of condemnation was entered in favor of Toledo, Norwalk and Cleveland Railroad Company, the predecessor of defendant in error, against Oliver, from whom plaintiffs derive their title, an act was passed which provided that “ any railroad company organized in pursuance of law may lease or purchase any part or all of any railroad constructed by any other company, if said companies’ lines of road are continuous or connected as aforesaid, upon such terms and conditions as may be agreed upon between said companies respectively. Or any two or more railroad companies, whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote the objects for-which they were created.”

On March 19, 1869, it was provided (66 Ohio L. 3'2) that, “any railroad company organized in pursuance of law, either within this or any other state, may lease or purchase any part or all of any railroad, the whole or a part of which is in this state, and constructed, owned, or leased by any other company, if said companies’ lines of said road are continuous or connected at a point either within or without this state, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroad companies whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote the objects for which they were created.” Such was the policy of the state, as expressed by its legislation in force at the time the defendant in error acquired its right to use a part of the right of way appropriated by the Toledo, Nor-walk and Cleveland Company. It is true that in this legislation many restrictions are imposed for the benefit of stockholders, of the state, and of the general public. These parties, however, have made no complaint against defendant in error. The only complaint is by plaintiffs in error, for whose benefit no provision is found in these statutes. Indeed, the general assembly has at all times assumed that the owner in fee, who had received full compensation for. the perpetual use of the right of way, had no such interest left in the land as required protection against what plaintiffs in error are pleased to call “additional burdens.”

By additional burdens are meant those which were not contemplated or compensated for at the time of the appropriation. We have shown full compensation was made for the use of the entire land embraced in the right of way for all time to come, subject, to be sure, to a reversion in case of abandonment or forfeiture. There has been no abandonment — no intention to abandon. Hatch’s case, 18 Ohio St. 120. Forfeiture comes by judgment — there has been no judgment. The transfer and use by the transferee for railroad purposes was contemplated. The defendant in error has subjected the right of way to no use or mode of use to which it was not subject by its predecessors within the contemplation of the parties at the time of condemnation. No trespass on land outside of the right of way is claimed. No right of transit from one side of the right of way to the other has been impaired. Indeed, no right of such transit was reserved by the owner in fee. No such right exists in the plaintiffs. The lands on the opposite sides of the right of way were severed by the'original condemnation. All communication was cut off. This burden or inconvenience was contemplated and paid for at the time the right of way was appropriated. There has been no burden outside of the land appropriated, or on adjacent land, which was not contemplated by the parties at the time of condemnation, and which, in contemplation of law, was not paid for to the full extent of damages resulting thereto.

It appears to me the summing up of defendant’s counsel is unanswerable. He reasons thus: “If the additional burden exists, it must be in respect to the land taken, or in respect to the adjoining land. It does not exist in respect to the land taken, for such land was fully paid for when originally condemned. On no other theory than full compensation to the owner ’ could land have been taken under the constitution of 1802; moreover, the easement acquired by the Lake Shore Company’s predecessor was perpetual. The easement thus acquired is transferable, and it is reasonable that when land has been taken by the state for the purposes of a highway, and has been fully paid for, and the easement so acquired is perpetual and exclusive against the owner, the state should be permitted to use as many instrumentalities to carry out the original purpose as public convenience or necessity may suggest. It is reasonable, because the purpose for which the land was taken is not changed; because all that can be done through all the instrumentalities selected by the state is no more than could have been done by the single company originally concerned; and because the owner is not injured by change of the medium through which the state accomplishes its purpose, except in imagination, for which imaginary injury the law gives no redress. The additional burden does not exist in respect to the adjoining laud, for the reason that not an inch of it is taken — not an inch of it is touched or excavated, and no right-was reserved to the adjoining land of access to, joint use of, or crossing over the strip that was condemned.”

The sixth proposition, that the quantity of land embraced in the right of way was fixed and determined between the parties, by the judgment of condemnation, is too plain for discussion. For the. whole of the land so embraced, compensation in full has been made, and it is unreasonable that the owner in fee should retain both the price paid and the land, or any part of it. If the land condemned exceeded the quantity necessary for the use of the road, but no objection on that accouut was made at the time, the judgment of condemnation concludes the owner in fee. If the power to condemn be abused in this inspect, the right to complain after condemnation, in fact, is in the state, not in the party who acquiesced in the act, and received compensation in full.

The seventh and last proposition is, that the non-user of portions of the right of way at the sides of the track of a railroad, is not an abandonment thereof to the owner in fee.

It was truly said in Hatch’s case, supra, that on a question of abandonment, the intention of the party is an element for consideration. No intention to abandon can be inferred against the defendant’s grantor from such a nonuser as that above named. Indeed, such non-user is merely technical and temporary. It is no evidence of an abandonment. Whenever circumstances require, the actual use of the whole right of way will become a necessity. It is a mistake to say that no part of the right of way is in use, except that covered by the track of the road. The exigencies of railroading may, at any time, require the occupation of ground at the sides of the track which has been unused for years.

It may be needed for repairs, for additional tracks, for fencing the road, etc. The law requires all railroads to be fenced. Where are the fences to be constructed and maintained? How much ground at the sides of the track is needed, for that purpose ? ■

Again, in condemning land for the purposes of a railroad, in a growing country like this, an increase in travel and traffic should be contemplated and provided for; the necessities of the present do not circumscribe the power of eminent domain. But if the grant of this power should be abused, as we have said before, after a judgment of appropriation, the power of the state should intervene to correct the evil. The present non-user of the whole of the land condemned is not equivalent to an abandonment of the whole or any part thereof. But whatever the remedy may be, it is clear to my mind, that the claim of abandonment can not be sustained by the owner in fee.

Johnson, C. J., also dissents.  