
    WESTERN DISTRICT, PITTSBURGH, 1856.
    Neal et al. versus Pittsburgh, and Connellsville Railroad Company.
    1. Railroad companies may make experimental surveys at pleasure, before finally locating their route.
    2. Railroad companies cannot have experimental suits at law, as a means- of chaffering with the land owners for the cheapest route.
    3. Whenever the company have located their road, and made an effort to agree with the land owner, and not before, the process to assess damages may be commenced by either party.
    4. When damages, caused by locating a railroad across land, have -been ascertained by report and judgment thereon, the right of the landowner to such damages is completely settled, and he is entitled to execution upon it.
    . 5. The power of taking any man’s land by a railroad company, is exhausted by a location. It cannot be indulged with another choice.
    Error to the Court of Common Pleas of Allegheny county.
    
    On the 28th day of June, 1854, the defendants in error presented their petition to the Court of Common Pleas of Allegheny county, in proper form, with the proper allegations, accompanied by-the proper diagram, and prayed for the appointment of viewers to assess the damages, inter alia, upon the lands of plaintiffs in error. Viewers were appointed, performed their duty, made their report, awarding the plaintiffs in error $1500, which report was confirmed, and judgment entered thereon, December 23, 1854. Fi. fa. was issued to December Term, 1854, and returned nulla bona. Alias fi. fa. was issued to March Term, 1855, and levy made on personal property of defendants. January 9, 1855, at the instance of defendants, a rule was granted to show cause why the alias fi. fa. should not be set aside for the following reasons, to wit :
    That a confirmation of the view and damages does not entitle the said Neal and others, to issue execution against said railroad company, until they signify their intention of taking possession of the land; and they have not signified their intention, nor have they occupied the same.
    Further, that it is not necessary for the said president, directors and company, to enter in and upon, and occupy, for the purpose of making said railroad, any land upon which part of the same may be located, belonging to, or claimed by the said Neal and others, the present defendants. That the said railroad company has not finally decided upon the route of said road, and they now do, and have for some time past, contemplated and designed a change of the location, which would not in any way touch or interfere with the land of the defendants ; and refer to the deposition filed, and the resolution of the board of directors of the 4th of December, 1854.
    On the argument of the rule, the affidavit {exparte) of O. W. Barnes, chief engineer, was read by the defendants in error, setting forth, inter alia, that the route of said railroad through the lands of the plaintiffs, had not been adopted by the board of directors, as the route for the finalloeation of said road, and that said route had not, at any time, been recommended by him, as chief engineer, as the line of final location. That the application for the appointment of viewers was made for the purpose of ascertaining the relative land damages of the present and other routes examined, and under the consideration of the board of directors. And that it was not now (then) the intention of the board “ to enter upon and occupy, for the purpose of making said railroad, any lands upon which the said route was located.”
    In connection with the foregoing affidavit, a certified copy of a resolution of the board of directors was read, authorizing the president and chief engineer of the company to negotiate with the Pennsylvania Railroad Company, on the subject of a connection with that road at Turtle Creek.
    After argument, the rule to show cause was made absolute, and alias fi. fa. set aside, which is the error here complained of.
    
      Geo. P. Hamilton, for plaintiffs in error,
    referred to Charleston Branch Railroad Co. v. The County Commissioners, 1 Am. R. C. 383; Harrington v. The Commissioners of Berkshire, 22 Pick. 263; Westbrook v. North, 2 Greenleaf, 179; 4 New Hamp. 517; Solomon v. Randall, My. & Cr. 449; Dow v. The London and Croydon Railroad Co., 1 Eng. R. Cases, 204; Beckersham v. The Birmingham and Oxford Railroad Co., 4 Eng. L. & E. 484.
    
      Wm. Wilkins and Sewell, for defendants in error.
   The opinion of the court was delivered, January 10,1856, by

Lowrie, J.

— Though railroad companies may make experimental surveys at pleasure, before finally locating their route; yet, certainly it has never been granted to them to have'experimental suits at law, as a means of chaffering with the landowners for the cheapest route.

So soon as the company locate their road, and have made an effort to agree with the landowner, and not before, the process may be commenced by either party, for ascertaining the damages; and when they have been ascertained, by report, and judgment thereon, the judgment settles the right of the landowner to such damages, just as completely as any other judgment, and he has just the same right to execution upon it. He is not to wait until the company say they are ready to go on, else all improvements by the owners of property along such a route, must be indefinitely suspended .upon a contingent appropriation. If judgments are to be the end of strife, they must bind both parties; and the power of taking any man’s land is exhausted by a location which it is too weak to retain; it cannot be indulged with another choice.

Here the petition to settle the damages, is filed by the company, and they say that they have located their road over the land for which these damages are assessed. A report having been made and judgment entered thereon, it is a final judgment, entitling the party to execution. If the company have any equitable ground of relief, they must present it in some other form, than a mere motion to set aside a regular execution.

The order setting aside the execution in this case is reversed, and the plaintiffs in error have leave to proceed on their judgment, and the record is remitted.  