
    Case 39 — PETITION ORDINARY —
    November 26.
    Evansville, Henderson & Nashville Railroad Company v. Grady.
    APPEAL FROM TODD CIRCUIT COURT.
    1. Before a railroad company can take land for its road-bed without the consent of the owner it must make compensation.
    2. The owner of the land is not deprived of his right to compensation by permitting the railroad company to enter under a promise that compensation should thereafter be assessed and paid.
    3. A railroad company must account in damages for an illegal entry on land to which it has no legal right.
    
      
    
    CITED
    Charter of H. & N. R. R. Co., Acts 1850-51, vol. 2, 281.
    17 B. Mon. 173, Henderson, &c. R. R. v. Dickinson.
    1 Bush, 153, Cornellison v. Cornellison.
    Civil Code, secs. 2, 3, 29.
    3 Harring (Del.) 3 64, Graham v. Anderson.
    9 B. Mon. 201, Trustees of Dover v. Pox.
    8 B. Mon. 232, Rowan’s ex’rs v. Portland.
    11 B. Mon. 163, Wickliffe v. City of Lexington.
    33 Vermont, 311, McCauley v. Western R. R. Co.
    1 Red&eld on Railways, 284.
    3 Bush, 590, Parker v. Jenkins.
    8 Dana, 289, Lex. & Ohio R. R. Co. v. Applegate.
    4 Litt. 322-28, Jackson v. Winn.
    Terry & Perkins,........ For Appellee,
    CITED
    Constitution of Kentucky, sec. 14, art. 13.
    15 B. Mon. 99, Bowman v. Wickliffe.
    16 B. Mon. 586, Kountz v. Brown, &c.
    
      STATEMENT OE THE CASE.
    It appears in the pleadings and evidence in this case that the Henderson & Nashville Railroad Company, in 1858, entered upon Grady’s land to grade its road-bed; that Grady at first objected to the entry, bnt consented upon the assurances of the railroad engineer that his damages should be thereafter assessed and paid. The road-bed was graded with Grady’s knowledge, and without further objection from him. This company failed to pay Grady for his land, or for his damages for the right of way; and, having suspended operations, Grady inclosed his land and the road-bed over it.
    The Evansville, Henderson & Nashville Railroad Company, in 1867, purchased the property, rights, franchises, etc., of the Henderson & Nashville Railroad Company. After making said purchase said company entered upon Grady’s land, opened his fencing, exposed his crop to damage, and proceeded to complete the railroad, etc. Grady sued the company for trespass, claiming six hundred dollars damages. The company claimed that it had a right to enter upon the land; that the right of way belonged to it; that as Grady consented to'the first entry and grading of the road in 1858, he was estopped from asserting any claim for. damages, and that he was also barred by lapse of time, etc. Grady recovered a judgment for three hundred dollars. On the railroad company’s appeal that judgment is affirmed.
   JUDGE PETERS

delivered the opinion of the court.

Before appellant can take the land of appellee for its road-bed it must make just compensation to him for it. This right is secured to him by the constitution; and it is not pretended that any compensation has ever been made to him for his land.

But it is contended that as appellee permitted the Henderson & Nashville road to enter on his land, and do some work under a promise by it to have his damages assessed and pay the same, that he was thereby deprived of the right to his land, although the corporation violated its promise, and never paid him one dime for his land.

In answer to that argument it is sufficient to say that real estate can not be acquired by that mode in this state.

If the appellant failed to secure the right from appellee to construct the road over his land, it has no just cause to complain if it is made to account for an illegal entry on land to which it has no right.

We perceive no error in the proceedings in the court below prejudicial to appellant.

Wherefore the judgment is affirmed.  