
    Riddell et al. v. The Animas Canon Toll Road Co.
    1. The effect of sections 28 and 48 (R. S. p. 125), of the act concerning' corporations, is to give a road company the right to locate its road on the general course designated in the articles of incorporation, and when so located, to construct, maintain and operate the road on the line of location, subject to the conditions of condemnation, compensation and other requirements of the act.
    2. Until the way is located, no right-of-way can be said to attach to any particular land.
    3. There is nothing in the language of the act to indicate an intention on the part of the legislature, that upon the location of the road, the right of the company in respect to its right-of-way relates back to the filing of the articles of incorporation, and that settlers subsequent to that date, although prior to the location of the road, take their lands subject to the cpmpany’s right-of-way.
    The doctrine of relation is sometimes resorted to, to prevent an injustice, but never to work one.
    
      Appeal from District Court of 8an Juan Comity.
    
    The plaintiffs in the court below commenced their action on the 30th of August, 1878, alleging in their complaint that they were the owners in the actual occupation and possession of a certain parcel of unsurveyed public laud, and claiming the right to occupy and possess the same under the laws of the United States and of the State of Colorado; that the plaintiffs first settled upon the premises in June, 1875, and made improvements of the value of at least $150, and have continued to occupy said premises from the date of their settlement until the present time; that on the 22nd day of August, 1876, plaintiffs caused the said premises to be surveyed and the boundaries thereof to be marked off, so that the extent of the same might be easily known; and on the 24th day of August, 1876, filed for record their declaratory statement with the county clerk and recorder of San Juan county, Colorado; that on August 19, 1878, the defendants forcibly broke and entered the said premises of the plaintiffs, and began to dig up and subvert the soil thereof for the purpose of constructing upon and across the same a wagon road, to the great damage to the plaintiffs; and that the defendants continue, and threaten to continue, to so dig up and subvert the soil of said premises, and without any authority whatever so to do. That said premises lie within the canon of the Animas river, and is a narrow strip of land of considerable length, so that in the construction of a road through the same, a great portion thereof will necessarily be taken, and in such shape' through the same as to put plaintiffs to great expense in fencing their premises on either side of said road. That plaintiffs are damaged to the amount of five hundred dollars. That defendants are at work on said premises with a large force of men, and, unless restrained, will do plaintiffs all the damage against which they seek relief.
    That the defendant is a corporation created under the laws of Colorado, etc., praying for an injunction, and also laying damages in the sum of $500.
    The defendant in its answer denied the settlement of plaintiffs as alleged, or at any time prior to August 2é, 1876; admitted the entry and construction of the road, and claimed the right so to do under its articles of incorporation, alleging that the company liad surveyed a route over the premises long prior to the settlement of the plaintiffs, and denied all damages. The cause was tried before the court and a jury, and a verdict rendered in favor of the defendant. A motion for a new trial was interposed and overruled, and judgment entered on the verdict.
    Messrs. Love & Yan Liew, for appellants.
    Messrs. Wilson & Taylor and Mr. T. M. Patterson, for appellee.
   Elbert, C. J.

This was an action brought by the appellants to recover damages against the defendant company for laying out and constructing its road over the land of the appellants.

Section 28 of the act concerning Corporations (R. S. p. 125), provides that “ when any three or more persons shall associate to form a com pany for the purpose of constructing a wagon road under the provisions of this article, their certificate of incorporation, in addition to the matters hereinbefore required to be stated therein, shall specify the termini of said road and the route of the same as near as may be, and the said company shall have the right-of-way over the line named in the certificate to erect toll-gates,” etc., etc.

. Sec. 48 provides for the condemnation of lands necessary for the construction or maintenance of the road, and for compensation to the owners of lands taken or affected by the road.

The effect of these provisions is to give a road company the right to locate its road on the general course designated in the articles of incorporation, and when so located, to construct, maintain and operate the road on the line of location, subject to the conditions of condemnation, compensation, and other requirements of the act.

Until the way is located, no right-of-way can be said to attach to any particular land. As long as the power to locate the road remains unexerted, the lands upon which the exercise of the right may ultimately cast the easement are uncertain, and no given tract or parcel of land can be designated as charged with the easement.

It is claimed, however, that upon location of the road the right of the company, in respect to its right-of-way, relates back to the date of filing its articles of incorporation, and that settlers subsequent to that date, although j>rior to the location of the road, take their lands subject to the company’s right-of-way.

We find nothing in the language of the act that indicates such an intention upon the part of the legislature, nor anything in the object and purposes of the act that demands such a construction as necessary to either its beneficial or just op-, eration.

On the other hand, such a construction would charge the lands of a settler on the general line of the road with a servitude which was not apparent, and of which the general designation of the line in the articles or incorporation gave him no definite notice. The doctrine of relation is sometimes resorted to, to prevent an injustice, but never to work one. The statute contemplates and provides for compensation for injury done to lands over which it is constructed, when such, lands are occupied and claimed under our laws. Such compensation is not to be defeated in any case where a fair construction of the law admits of it.

The appellants being in possession, and having on the- 24th of August, 1876, and prior to the location of the road, filed with the clerk and recorder of San Juan County, their declaration under the law (Gen. Laws, chapter 83), designating and claiming by metes and bounds the lands, the subject of the trespass complained of, they were entitled to recover, notwithstanding the articles of incorporation of the defendant company were filed prior to the filing of the declaratory statement of the appellants.

The court in effect instructed the jury that if the articles of incorporation of the defendant company were filed prior to the declaratory statement of the appellants, that the appellants could not recover. In this there was error, and the judgment of the court below is reversed and cause remanded.

Reversed.  