
    *William S. Hatch v. The Cincinnati and Indiana Railroad Company.
    Whether, under the twelfth section of the act of May 1, 1852, to provide for the ‘creation and regulation of incorporated companies, etc. (3 Curwen’s L. 1860), a railroad company may, in the exercise of the delegated power of eminent domain, appropriate to its use,' for the purposes of a railroad, the-lands constituting the body of a canal acquired by the exercise of like delegated power, by a canal company, for the purposes of such canal, against the consent of the latter — quaere. Rut, be this as it may, held—
    1. Where such companies resort to the form of appropriation, merely for the-purpose of consummating what is in reality an amicable purchase by the railroad company, from the, canal company, of its easement in the lands-appropriated, and a railroad is thereupon constructed on the line, and in the place of the canal, this is not such an abandonment of the easement, of the canal company, as will work its reversion to the owner of the land! in fee simple.*
    2. Where, in such case, the owner of the fee simple title to the lands covered by the easement, though denying the right to have made it, yet recognizing the appropriation by the railroad company as an accomplished fact, brings * his action against the railroad company to recover damages as for a permanent appropriation, he is entitled to recover the full value of lands, if any, taken hy the railroad company, and not covered by the former appropriation by the canal company; and, also, a full and fair compensation, for such additional burdens and inconveniences, not common to the general public, as accrue to him and his entire tract on which the easement is imposed, by reason of the change of uses to which the lands appropriated have been subjected.
    3. The rightful power of a canal company over the canal, in the absence of any statute or contract to limit it, being exclusive, any use of the waters of the canal for purposes of navigation, or for watering stock, by the owner of the fee simple of the lands intersected by it, being a matter of sufferance and not of right, the loss of these conveniences, by reason of the change of use above mentioned, do not constitute an element to be reckoned in estimating the amount of his compensation.
    -4. Nor is such owner entitled, in such action, to recover on account of increased danger from fire to his buildings or other structures, by reason of the change of use aforesaid, unless the proximity of his buildings, etc., to the railroad be such as to render the danger imminent and appreciable.
    .'5. An appropriation of land by a canal company for the purpose of a canal, in the absence of any contract or statute to the contrary, will be presumed to have included land for a berme-bank as well as for a tow-path; and the exclusive power of the company over the land necessary for such bank is the same, whether it consist of a natural or artificial deposit of earth.
    *6. 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 occasioned 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.
    *Er.b.or to the court of common pleas of Hamilton county. [95 Reserved in the district court.
    October 9, 1864, Hatch filed in the common pleas his petition, ■.stating in substance: ■
    1. That he was, on the 22d of April, 1863, had been previously, -and has ever since continued to be, seized of a certain tract of land, situated in the township of Delhi, Hamilton county [described], containing about seventy-five acres, in the actual occupancy of the plaintiff.
    That said land is, and has been for many years, under a high state of improvement, and occupied by plaintiff for his residence,, and used for purposes of cultivation, and had special value from its-location, extending from the Ohio river over the bottom land and up and over the hill north of the same, and having the convenience-of a macadamized county road, laid out and constructed from the-city of Cincinnati, west through said land near the base of the-slope of the hill. And many years ago the Whitewater Canal: Company (a corporation of this state, having the franchise to construct and operate a canal), acquired the right to make, and did make, a canal through said lands, running parallel with the Ohio-river, and south of said macadamized road, and the water of said canal became and was convenient and valuable in the use of said, lands of plaintiff.
    And afterward, to wit, in the month of April, in the year 1863,. the defendant, having wrongfully procured and induced the canal corporation to abandon its canal (forthe sole purpose and use ofwhichit had acquired from plaintiff its right of way through his lands), and also to surrender or abandon its franchise, proceeded wrongfully to take possession of a part of the lands of the plaintiff, and to locate and construct a railway over and upon the same without having acquired the right to do so from plaintiff.
    And the defendant, in the construction of its railway over plaintiff 's land, let the water off from the canal, and made excavations- and embankments on plaintiff’s lands, and took and appropriated, for the purpose of its railway, not only plaintiff’s ground which 9-4] had been previously used for the ^purposes of the canal, but also other and adjacent ground, to the extent of about twelve-feet wide and fourteen hundred feet in length; and defendant is-now operating its railway over plaintiff’s land, and using the strips-of ground so taken for the purposes of its railroad, wrongfully and to the great inconvenience and injury to plaintiff in the use and. enjoyment of his lands.
    The defendant has also, by the construction of the railway, deprived plaintiff of the convenient and valuable use of the water of' the canal, and created inconvenience and danger in the use of the-macadamized county road on plaintiff’s lands; -and the plaintiff avers that he has boon damaged by the wrongful acts of the defendant in the premises to the amount of seven thousand five hundred dollars, estimated in the gold coin of the United States; for which amount in value he asks judgment.
    
      The defendant answers, in substance:
    That by an act of the legislature of Ohio, passed April 1, 1837, and certain acts amendatory thereto, certain persons therein named were constituted a body corporate, with succession, under the name-of the Cincinnati and Whitewater Canal Company. Said company was authorized to locate and construct, upon the general plan and dimensions of the Miami Canal, a navigable canal, with all necessary appendages, on a route commencing at such suitable point, in the city of Cincinnati as the company might select, with the approbation of the city council of said city; thence along the valley® of the Ohio, Great Miami, and Whitewater rivers to a junction with the Indiana Whitewater Canal, at or near the town of Harrison; said canal to be designated and known as-the Cincinnati and Whitewater Canal.
    For the purpose of assuring to said corporation all the lands, real estate, waters, and materials requisite for most economically constructing and maintaining the canal and works connected therewith, and incident and necessary to the navigation of the same, whenever such lands, waters, and materials should not be obtained by voluntary donations or fair purchase, it became and was lawful for the corporation, *by any of its officers, and by each and [95 every agent, superintendent, or engineer, by the corporation employed, to enter upon-and take possession of and use all such lands, real estate, and streams as were necessary for the purpose of the corporation, paying and satisfying all damages occasioned to any person or persons by such appropriation ; which damages were to be assessed and determined in the manner provided in the charter.
    Whenever any lands were taken for the construction of'the canal, or the works connected therewith, and the same were not given or granted to the corporation, and the proprietor did not agree with' the corporation as to the compensation to be paid therefor, it became, and was, lawful for the county commissioners of Hamilton county to appoint three judicious and disinterested freeholders of the county as arbitrators, for the settlement of all damages claimed under the provisions of the canal chai’ter, from whose award either party might appeal to the court of common pleas of Hamilton county, or to the Superior Court of. Cincinnati, at the option of the appellant. And in all cases when compensation was claimed for lands taken, it became and was the duty of the arbitrators or the court to estimate any advantages which the location and establishment of the canal might be to the person or persons claiming such compensation, and such advantage, if any, to set off against the compensation so claimed of the corporation. The canal, when completed, was to be estimated and taken to be navigable as a public highway. For a moro full description of the rights and powers of the canal company, reference is made to the charter and the amendments thereto.
    That under the provisions of the charter, and prior to the year 1839, the county commissioners of Hamilton county appointed John Burgoyne, Alfred S. Fear, and O. Jones, three judicious and disinterested freeholders, as arbitrators for the settlement of all damages claimed under the provisions of the canal charter, whose duty it was to award, as such arbitrators, between the canal company and those claiming compensation for land taken, and to report the result of the award in writing. Defendant avers that under the pro-96] visions *of the charter, and in accordance therewith, the canal company proceeded to and did construct the canal; that in so doing it became and was necessary for the company to take, for the purposes of its work, a strip of land through the lands of the plaintiff, in petition described; that the plaintiff, claiming compensation, appeared before the arbitrators, who, upon the 14th of May, 1840, made-their award in writing, signed by them, and awarding him damages.
    That under the provisions of the canal charter, the canal company took possession of the premises, in the year 1840, and has since held •exclusive and continued possession thereof until the 24th of Januai-y, 1863, when the same were appropriated by the defendant, as will 'hereafter appear.
    That the defendant is a body corporate by the laws of Ohio, by virtue of a certificate in due form filed in the office of the secretary •of state, April 14, 1862, a copy of which is attached to and made part of this answer. By virtue thereof, the defendant was authorized to construct and maintain a railroad, with single or double ■track, with such side-tracks, turn-outs, offices, and depots, as might be necessary, between the points named in the certificate, commencing at or within the city of Cincinnati, and running to the intersection of the Whitewater Valley Canal with the line dividing the states of Ohio and Indiana, in the township of Whitewater, Hamilton county; and for such purpose defendant was authorized to acquire at pleasure all such real and personal estate as might be necessary and convenient in carrying into effect the object of the incorporation.
    That by the powers conferred, the defendant was authorized to ■enter upon any land, and to appropriate so much thereof as might be necessary for the railroad; and if it became necessary in the location of any part of the railroad to occupy any road, street, alley, ■or public way, or ground of any kind, or any part thereof, it was lawful for defendant to agree with the municipal or other corporation or authority owning or having the charge thereof, upon the manner, terms, and conditions upon which the same might be used and occupied.
    ♦That under the provisions of said laws, and as they had a [97 right to do, the defendant entered upon the canal and appropriated the same from the point where the line of the railroad strikes the line of the canal, in Whitewater township, and thence to and into the city of Cincinnati. The. resolutions of the board of directoi’s of this defendant making the appropriation were adopted and entered on their minutes, the 26th and 29th November, 1862. And 'the appropriation includes the strip of ground through plaintiff’s premises formerly held and owned by the canal; but defendant denies that it has taken any of plaintiff’s land, or any other than that formerly held and owned by the canal.
    That the canal company agreed with the defendant upon the manner, terms, and conditions upon which the canal property ■might be used and occupied; and the price to be paid therefor so agreed upon was fifty thousand dollars, which was paid upon the 24th of January, 1863, upon which date defendant entered upon the canal property, took possession of the same, and have ever since held and do now hold and own the same for the uses and purposes of the corporation.
    Defendant denies that it has-made excavations or embankments upon plaintiff’s land, or that it has appropriated or in any way interfered with any portion thereof; denies that the use of the railroad is injurious to plaintiff’s lands, or his occupation or enjoyment thereof; and denies that it has occasioned any injury to any of plaintiff's rights; and denies that he is entitled to any relief by reason of anything in the petition alleged. Wherefore they pray to be hence dismissed with costs.
    In an amended answer the defendant averred that the plaintiff’s cause of action did not accrue within twenty-one years from tlier filing of his petition.
    The plaintiff replied in substance as follows:
    1. That it is true that the canal company, in the construction of its canal, did make an appropriation of a strip of ground through, the promises of plaintiff in the petition mentioned, which strip con-98] stitutes a part but not the whole *of the strip of ground through said premises, taken and occupied by the defendant, as is in the petition mentioned; and that the appropriation was made-by the canal company for the purposes and uses of its canal and none other; and in the assessment of the damages by arbitrators, the agents of the company insisted that the canal would afford to-plaintiff’s premises valuable water privileges, and plaintiff avers-that the damages assessed and allowed him were made less on that ground by the arbitrators, and also by the jury on the appeal in the court of common pleas, the proceedings for the assessment of' the damages and fixing of the compensation having been appealed to the court of common pleas from the decision of the arbitrators, and the assessment of the amount to be paid the plaintiff having' been made in that court; and the plaintiff avers that the defendant by its railway has not only taken away the advantages whereby plaintiff’s land was benefited by the canal, but has greatly injured the value and use of the plaintiff’s land by constructing and operating a railway in the place of the canal.
    And plaintiff denies that the defendant ever made any valid appropriation of the bed or line of the canal for the purpose of its-railroad; and also denies that defendant ever acquired any legal right to the land occupied by the canal company through plaintiff’s-premises ; and denies that the canal company ever gave any legal consent to the alleged railroad location and appropriation, or ever legally fixed or agreed to the amount of the compensation to be paid by the defendant for an appropriation of the land for the-purposes of the railroad through the premises of the plaintiff.
    2. It is not true, as stated in the answer, that the canal company, in the year 1840, took possession of and continued to hold all of the premises, or strip of land, now claimed and occupied by the-defendant, but only a part thereof; on the contrary, the defendant,, on taking the canal for the use of its railroad, took and appropriated wrongfully and unlawfully an adjacent strip of ground through plaintiff’s lands, as in the petition set forth, which was not appropriated, acquired, and occupied by the canal company for the purposes and uses of its canal.
    *3. That the purchase of the canal by the defendant from [99' the canal company, and the taking and appropriating of the same by the defendant for the uses and purposes of its railroad, was effected by a fraudulent combination of the directors of the canal company with the directors of the defendant, with the intent to cheat and defraud all other persons interested in the canal, and that the purchase- and appropriation are fraudulent and void as against the plaintiff.
    4. That the statement in the amended answer that the plaintiff’s cause of action did not accrue within twenty-one years prior to the commencement of the suit is untrue.
    At the January term, 1866, of the common pleas, the case came to trial to a jury; and, on a suggestion made by the court, the-plaintiff stated the points in support of, or as tending to prove which, he offered evidence, touching the injuries and damages-claimed to have been done him, as follows :
    1. That the ground occupied by the canal company through plaintiff’s premises, and originally taken from the same, and appropriated by the canal company, which defendant took for its railroad,, was a strip fifty-four feet wide at one end, and forty-four feet wide-at the other end, and thirteen hundred and seventy-six feet long, fairly and reasonably worth, and of the value of, five dollars per foot in the length, amounting in all to $6,880.
    2. That the defendant has taken and occupied by its railroad a. strip of ground of plaintiff’s premises and running through the-same, adjacent to, and north of, the ground appropriated and occupied by the canal for canal purposes, twelve feet wide and eleven-hundred and sixty-eight feet long, worth and of the value of two dollars per foot in length, making in all $2,336.
    3. That in taking the said ground last above mentioned from the plaintiff’s premises, the defendant injured the value of, and almost entirely destroyed for useful purposes, other ground belonging to the plaintiff’s premises, lying between the ground so taken for the railroad, and a public highway, or turnpike road, near to, and on the north side of the railroad-, which injury and damages may be fairly estimated at the sum of $200.
    *4. That the defendant’s railroad has created new, different, [100‘ and much greater danger to human life in the use of plaintiff’s premises, and which is increased from the peculiar relative situation of the railroad to the premises' whereby plaintiff’s premises are injured in value to the amount of $1,000.
    5. That the defendant’s railroad has created new, different, and much greater danger to stock of all kinds, raised, kept, and used on the farm, which danger is increased from the peculiar relative situation of the raliroad to the farm, to the injury of plaintiff’s premises to the amount of $1,000.
    6. The defendant’s railroad has made plaintiff’s farm more difficult of access; has made the ingress’and egress of the same, and the passing from one part of the farm to another, not only more difficult, but also more dangerous, and thereby damaged plaintiff’s premisos, more especially those parts of the same between the railroad and the river, and north of the railroad on the slope of the hill, suitable for gardens and pi-ivate residences, to the amount of $2,500.
    7. That without counting anything for the annoyances of the noise, dust, smoke, and such like discomfox’ts created by the rail-i*oad, the danger from the fire of the locomotives of the railroad, burning fences, timber, herbage, houses, etc., on the premises, caused by the defendant, has damaged plaintiff’s premises to the amount of $1,000.
    8. That the water of the caxxal afforded, convexxient and valuable advantages for watering stock kept and used on the farm, also for irrigation and other agricultural and horticultux’al uses, without in any way interfering with the appropriate use of the canal for canal purposes, all of which plaintiff had been allowed and accustomed without interxuxption to use with the knowledge of the superintendent and other officers of the canal company, from the time of the completion of the canal to the time .when the same was destroyed by the defendant, a period of more than twenty-one years, and which incidental uses of the canal, as incidental advantages to plaintiff’s promises, were ux*ged and allowed as grounds of reducing the compensation to be paid plaintiff by the canal company, when its appropriation of plaintiff’s land was made for the purposes of 101] the canal. And these advantages *were worth to plaintiff’s-premises, $120 per year, or $2,000 in the value of the premises.
    9. That the canal afforded convenient and valuable facilities for the transportation of lumber*, timber, fuel, provisions, agricultux*al ■and horticultural products, etc., to be unloaded on plaintiff’s premises ; also, in receiving and shipping articles from the farm, and for all which purposes plaintiff had the right to navigate the canal, either with his own canal-boat or with the canal-boat of some other person hired by him, none of such immediate advantages in transportation to and from the farm having been afforded by the defendant’s railroad, and which advantages were worth to the plaintiff’s premises $1,000.
    10. And at the time of the original appropriation of plaintiff’s land for the purposes of the canal, the right of the plaintiff as the owner of his premises to the water of the canal on his farm, for mill purposes, sufficient to run four sets of flouring burrs, was conceded^ on the part of the canal company, and insisted on and finally allowed as ground for the deduction of four thousand dollars from the compensation to be paid plaintiff. And plaintiff proposes to prove, that the canal afforded to his premises the advantage of such waterpower which was of great value thereto whenever its use should be required.
    11. And plaintiff proposes further, to offer evidence tending to< prove that the alleged appropriation of the canal by the defendant was illegal and void, because procured or attempted to be procured by the fraudulent collusion between the defendant and the-directors of the canal company; that the defendant, with the aid of the Indianapolis and Cincinnati Railroad Company, with which it was connected and whose instrumentality it was, having bought up a majority of the stock of the canal company, and elected a board of directors for the canal company, a majority of whom were directors and officers in the railroad company, fixed and prescribed the compensation to be paid for the appropriation of the canal in the answer mentioned at $50,000, when it was fairly and reasonably worth, and would have sold at public sale for over one million of" dollars.
    *On full argument of counsel on both sides, touching the [102 competency of evidence offered to prove the several propositions-above stated, the court decided that it was competent for the plaintiff to give evidence in support of the first, second, third, and sixth of the foregoing propositions or points, and to give evidence under the seventh point, to this extent, namely: that he might by evidence-describe his property lying upon or adjacent to the defendant’s railroad, with all the improvements thereon, and the location and mode-of construction of the railroad; and prove, if such was the fact, that "by the lawful and ordinary use of the railroad, there was increased -danger of fire being communicated to his said property.
    The court further decided that it was not competent for the plaintiff to give evidence in support of the eighth, ninth, and eleventh of the foregoing propositions or points. As to the fourth and fifth of said •points, a full description of the relative situation of the plaintiff’s property to the railroad, and evidence of increased danger from fire, .-as above stated, is allowed under the seventh point.
    The plaintiff, under the sixth point, was permitted to show that there was increased difficulty and danger of access to and from the jplaintiff’s property, and from one part of it to another; and as the plaintiff did not suggest any other manner in which there was in-creased danger to human life or to stock in consequence of the construction and use of the railroad, except in going on to and crossing the railroad at other places than where the public highway crosses, in the use of plaintiff’s premises, the court ruled that except as to the increased danger of access from one part of the plaintiff’s prop•erfcy to another, such testimony was incompetent.
    And as to the tenth point, the court held that testimony under it was incompetent; but afterward allowed the plaintiff to testify to what passed between him and the attorney and officers of the company before and at the time of the appropriation of his land by the ■canal company, in reference to said tenth point.
    And the court also allowed the plaintiff to testify to what was 103] said at the same time between himself and said officers *and attorney as to a reduction of the compensation which he should receive from the canal company for the land taken by said company, on account of the use which he would be permitted to make -of the canal for watering stock, and other farming purposes; reserving a final ruling upon the competency of said testimony of the plaintiff until the charge to the jury.
    To which ruling of the court, excluding evidence offered by the plaintiff, he then excepted, and proceeded with the introduction of •evidence on his behalf.
    The defendant offered evidence also to sustain the issues on its part; and the plaintiff gave evidence in reply.
    So far as is material, the evidence and exhibits offered on the .trial are referred to in the opinion of the court.
    The court charged the jury as follows:
    The plaintiff, William S. Hatch, seeks to recover in this action:
    
      First, compensation in damages for a strip of land appropriated .-and used by the Cincinnati and Whitewater Canal Company as a part of the bed and banks of their canal, and which was afterward •converted by the defendant, the Cincinnati and Indiana Railroad Company, into a part of the track of their railroad, on the ground that such conversion was unauthorized by law, and was an abandonment of the land for the uses of a canal, by which the title thereto reverted to him. The defendant claims that the railroad •■company had the lawful right to appropriate the easement of the •canal, and use the land covered thereby as a right of way for their-■railroad, and that they made such appropriation in a regular and lawful manner before entering upon or using the land; and they have offered in evidence the proceedings of the railroad company :and canal compahy under which the appropriation was made. The •court instructs you that the railroad company had such right of appropriation; that the proceedings of the two companies offered in evidence constitute such an act of appropriation that the railroad company thereafter had the right to enter upon and use the land for the purposes of their railroad; and that the plaintiff can not recover the value of the land or any part thereof, in consequence of such entry and use.
    ^Secondly, the plaintiff claims that the railroad company [104 have taken and used not only the land which had been before appropriated and used by the canal company, but also a strip of his •other land adjacent thereto, which the defendant denies. In order to ascertain whether such additional strip of land has been taken •or not, it will be necessary for you to ascertain from the evidence what were the dimensions of the canal.
    The charter of the canal company authorizes them “ to locate and construct, upon the general plan and dimensions of the Miami •Canal, a navigable canal, with all the necessary locks, towing-paths, basins, aqueducts, culverts, waste-weirs, dams, wharves, embankments, toll-houses, and all other necessary appendages.” And the railroad company have offered evidence tending to prove what the dimensions of the Miami Canal were — that it included, among other things, a berme bank, having a slope from the water’s edge, the horizontal width of which was three- and a half feet, and that from the top of said slope the berme bank extended an additional width of six feet horizontally. The plaintiff, on the other hand, claims he has shown by evidence that the canal at this place was located along the base of a hill, with berme bank next to the hill; that, in. consequence thereof, no berme bank was needed, and that no land was in fact appropriated or used therefor; but, on the contraiy, that it was agreed between the plaintiff and the canal company that the land should only be appropriated to the water’s edge on the side opposite the towing-path. I charge you, however, that a berme bank was needed for the uses of a canal, and the necessity for it was not dispensed with in consequence of the location of the-canal at the base of a hill; that it answered the same purpose-there as elsewhere — namely, to support the water — and could also> be employed for other incidental purposes, as at other places. It was therefore the duty of the canal company to appropriate or otherwise acquire land for a berme bank through the property of the plaintiff, of the dimensions of the berme bank of the Miami' Canal; and the canal company must be presumed to have done its-duty in this respect. There is evidence tending to show that, in a conversation between one or more officers of the canal company 1053 and the plaintiff, before the *canal was located, they told him they would not need the land for a berme bank. If such conversation took place, they were mistaken, because, as I have said to you, the land- for a berme bank was needed by the canal company. But it appears that no agreement was concluded or appropriation made at that time; but that' legal proceedings were instituted for that purpose, a record of which has been offered in evidence ; and there is evidence tending to prove that those proceedingswei-e terminated by a verdict entered by consent, under an agreement between the plaintiff in this action and the counsel foi tnecanal company. In these proceedings the land sought to be appropriated is not accurately described, but Hatch alleges that the canal company entered upon and appropriated the premises to their own-use in the construction of their canal. The legal conclusion from these proceedings is, that so much land was appropriated as was-required to construct a canal of the general plan and dimensions of the Miami Canal, including a berme bank. But although it was-the duty of the canal company to appropriate this quantity of land, if they had made a distinct agreement for a less quantity, they would only have acquired the right of way over the land agreed upon, but the judgment of appropriation must be taken to have included the land for a berme bank. . '
    The plaintiff claims, moreover, that the canal company never used or claimed any ground north of the cut of the canal, otherwise than under a deed from the plaintiff to the Ohio and Mississippi Railroad Company, offered in evidence. If used for no other purpose, however, the berme bank was used for the first construction of the canal as a support for the water in the canal. But this deed was a transaction between third parties (res inter alios acta), with which the Cincinnati and Indiana Railroad have not been shown to be connected in such a way as will make it binding on them. And I therefore rule out said deed from your consideration.
    Having ascertained the dimensions of the canal, you will next inquire whether an additional strip of land has been taken by the railroad company. If you find there has, you will give the plaintiff full compensation in damages for the injury ho has sustained thereby, and you will apply the rule *of damages which has been laid [108 down by the Supreme Court, namely: you will compensate him firs t, for the abstract value of the quantity of ground taken; second, for the value arising from the relative situation of the land, taken in connection with the residue of the owner’s land from which it is reserved; and third, for the effect upon the valúe of the residue of the owner’s land arising from the uses for which the appropriation is made. The compensation must be broad enough to cover the full loss in value which the owner suffers in his property by means of the appropriation for the uses for which it is made.
    Thirdly, the plaintiff sought to recover damages for certain incidental injuries which he alleges he sustained in consequence of the conversion of the canal into a railroad. As to most of the matters embraced by this claim, I was satisfied they did not form a proper subject for compensation in damage, and therefore excluded the evidence offered. But as to two of them, evidence was received. The first was as to increased danger from fire, to the buildings, fences, and other property on the plaintiff’s land. When this evidence was offered, however, I became satisfied it was not sufficient to establish any appreciable increase of danger from fire; that any attempt to estimate damages from it would only involve the most uncertain conjectures, and that it ought to bo withdrawn from your consideration. I therefore rule out all evidence upon this point.
    Fourthly, I allowed evidence to be offered to show any increased danger or difficulty of access to and from the plaintiff’s property, and from one part of it to another. Now it is claimed by the defendant that the,plaintiff’s means of access to his land north of the canal was by a public turnpike road between said land and the canal, leaving a strip of land, however, adjacent to the canal; that his moans of access to his land south of the canal was by said turnpike, and by a county road at right angles therewith, and by a bridge in said county road over the canal. If you find such to be the fact, I charge you that the plaintiff is not entitled to any damages for any increased danger or annoyance in traveling said turnpike or said county road in consequence of the construction of the 107] ^defendant’s railroad. This is an inconvenience which he suffers in common with the public at large, and for which the law gives no compensation in damages. And if the means of ingress and egress to and from the turnpike and from the county road on to the plaintiff’s land remain as they were before the canal was converted into a railroad, you can give no damages for such increased danger or difficulty of access. The difficulties and dangers of access to the plaintiff’s property while traveling upon these public highways, even if they were increased by means of the railroad, are not a subject for which damages can be given.
    The plaintiff claims, however, that he might have constructed a private way across the canal from one part of his land to another; that this was a privilege which added to the value of the land; and that it has been impaired by the railroad, which has rendered the construction of such private way more difficult and expensive. If you find that the right to construct such a private way was a valuable privilege, which added to the value of the plaintiff’s land, and that it has been impaired by the construction of the railroad, you will give him damages in such sum as will compensate him for the depreciation of the value of his land resulting from the improvement of said privilege; but if you find that the right to construct such private way was not a valuable privilege — that no man of judgment and prudence would have undertaken to construct or use it, because the benefit to be derived from it would not have been equal to the expense necessary to be incurred, or that as convenient and cheap a private way can now be built as could have been before the conversion of the canal into a railroad — the plaintiff is not entitled to any damages on this account.
    As to the plaintiff’s claim of compensation for a supposed loss of water-power from the canal, and for the loss of any incidental advantages accruing to him from the navigation of the canal, and for the use of the water for watering stock and other farming purposes, it is not proper for you to allow him any damages on these a ecounts.
    To these instructions, given by the.court to the jury, the plaintiff excepted.
    *The jury found for the plaintiff, and assessed his damages [108 at three hundred dollars.
    The plaintiff moved the court for a new trial, for the following causes:
    1. That the verdict is against the law and evidence.
    2. That the verdict is against the weight of the evidence.
    3. That the court erred in the instructions given to the jury.
    4. That the court erred in ruling from the jury the evidence tending to show increased danger from fire on plaintiff’s premises, created by the defendant’s railroad; also the evidence tending to show that the railroad of defendant had injured plaintiff’s premises by rendering the same more difficult and dangerous of access, and more difficult and dangerous in passing from the one side of the premises to another; and in instructing the jury that plaintiff was not entitled in law to recover for any such injuries.
    5. That the court erred in instructing the jury that it was the duty of the canal company to have and appropriate ground for a berme bank on the north side of the canal through plaintiff’s premises, and that it must bo presumed that the canal company did take and own ground for a berme bank six feet in width on the north side of the canal for its berme bank, even although it never used the shme.
    6. That the court erred in other respects in instructing the jury on the facts.
    7. That the court erred in ruling from the jury the deed of plaintiff to the Ohio and Mississippi Railroad Companj*-, for the tow-path on the north side of the canal, and the evidence showing the circumstances attending the giving of the deed.
    8. For other causes.
    This motion was overruled, and judgment entered on the verdict.
    To reverse this judgment, the plaintiff filed his petition in error in the district court, and the case was therein reserved to this court for decision.
    The assignments of error correspond substantially with the causes alleged for a new trial.
    
      
      Stanley Matthews, for plaintiff in error :
    I. The first claim of the plaintiff is for a trespass, committed by 109] *tho defendant upon that part and so much of his lands as was originally appropriated by the canal company.
    This alleged trespass the defendant justifies: 1. Under the appropriation of the land in controversy by the canal company; 2. Under the appropriation of the rights of the canal company by the defendant.
    There is error of law in the charge of the court upon this point on two grounds:
    1. Even admitting, as we do not, the premises the charge assumes, viz., that the railroad company could legally appropriate to its uses, for a railroad, the canal, and that it has legally done so, still the conclusion does not follow “ that the plaintiff can not recover the value of the land or any part thereof, in consequence of such entry and use,” as charged by the court. For in that view the new use being different in its kind, and more burdensome to the owner of the soil — as is evident from its nature, and made manifest in the proof — there has been that which the law regards as property remaining vested in the original owner of the soil, never taken away from him by the canal company, which the railroad company has, for the first time, taken from him without his consent and without compensation. He therefore had an interest in the soil, even if a partial, still a valuable one, of which the defendant has wrongfully deprived him. The value of that interest by way of damages for the wrong, he therefore has the right in this action to recover. Moorehead v. Little Miami R. R. Co., 17 Ohio, 340; L. M. R. R. Co. v. Naylor, 2 Ohio St. 235, 419; Giesy v. Cin., W. & Z. R. R. Co., 4 Ohio St. 307 ; Junction R. R. Co. v. Ruggles, 7 Ohio St. 1; Corwin v. Cowan; 12 Ohio St. 629 ; Street Railway v. Cumminsville, 14 Ohio St. 523; Hilcoat v. Bird, 10 Com. Bench (1 J. Scott), 326, 347; Imlay v. Union Branch R. R. Co., 26 Conn. 255; United States v. Harris, 1 Sumner, 21; Sommerville & Easton R. R. Co. v. Dougherty, 2 Zabriskie, 501.
    2. We controvert the premises assumed by the court as the basis of its charge, viz : (1.) That the railroad company had the legal power to appropriate the canal to be converted into a railroad; (2.) That it had legally done so.
    110] *1. "We do not deny that the property of an incorporated company is any less subject to the power of eminent domain in the state than the property of an individual. But there must be express authority of law for its exercise. I claim that by the laws of this state no authority is conferred upon a railroad corporation to appropriate the canal of a canal company for railroad purposes. That authority can not be found in the 10th section of the act of May 1, 1852. That section covers the case of appropriations of private property held for private purposes. And the 12th section covers those for the appropriation of a joint occupancy of a public way or ground owned or controlled by public authorities. The third case of private property held for a public use, is not provided for, and the same can not be appropriated by the existing laws by a railroad corporation to its use.
    
    
      ■ That this has been the view acted upon by the legislature may be seen from two legislative declarations in reference to it.
    (1.) The first is the statute of March 14, 1853, supplementary to the act to provide compensation and authorizing the appropriation of sections 29 and 16, or other land used for or devoted to school purposes. S. & C. 316.
    (2.) The statute authorizing one railroad corporation to condemn the right to use in common with another a railroad bridge built and owned by the latter over a navigable river. Act of February 10, 1860, 57 Ohio L. 10.
    II. But supposing it to bo conceded that the railroad company had legal power to appropriate the canal of the canal company, we deny that it has over done so.
    The record shows that no judicial proceedings to appropriate the canal were ever taken. State ex rel. Hayes v. Cin. & Ind. R. R. Co., 17 Ohio St. 103. The evidence shows that the whole result was the direct object and end of an agreement to that effect made between the directors of the two corporations.
    The directors of the canal company had no power derived from their charter or from general provisions of law, to sell their corporate property, or at least to sell it for the purpose of having it diverted from the legal purposes for which alone it was and could have been acquired. Their only authority *by law was to [111 hold, possess, and manage the property as trustees of the corporation for the purposes of the corporation, that is, as and for a canal.
    Neither could they derive any such power from either'the 10th or the 12th sections of the corporation acts authorizing appropriaations of property tó the uses of a railroad.. These sections do not purport to confer any power to agree. They suppose it already to exist. And it does exist in all the cases provided for in either of the sections. Now, in the present instance, no judicial proceedings to appropriate took place. None was authorized, except in tho event that tho parties could not agree. As they did agree, there was no appropriation ; but as they had no power to agree, no rights passed by tho agreement.
    III. The remaining question in the case, arising upon the charge of the court, relates to a strip of land, claimed by the plaintiff, as lying oulside tho original appropriation by the canal companjq but-taken possession of by the defendant under its agreement with the former, as part of the canal property.
    The defendant claims it as the berme bank of the canal at that point. The plaintiff introduced evidence to prove that the strip in question was not embraced within the canal appropriation. The proceedings offered in evidence by the defendant of the original appropriation by the canal company do not show that this strip was included.
    The court below, however, charged the jury that such a strip, being necessary to the canal to furnish a support for the water in tho canal, and to make it correspond in dimensions with tho model prescribed in the charter of the company, it must be presumed to have been included in the act of appropriation, in the absence of a distinct agreement to the contrary. In this the court erred.
    And if the court below was right in declaring it to have been legally a part of the canal, when the canal ceased -to exist the berme bank, like the rest of the plaintiff’s land which had been taken for that purpose alone, was relieved from the incumbrance of that easement, and returned into the rightful possession of the plaintiff, who, as to the defendant, had never lost any of his rights as its original proprietor.
    
      *E. A. Ferguson, for defendant in error:
    I. The first question in this case is as to the effect of the change of tho use of land covered by the canal from the purposes of a canal to those of a railway.
    The defendant contends that the public, by the canal company as its agent, had an exclusive, perpetual right of use, which was equivalent to a fee; that the former owner had no estate in or possession of the land, but a mere possibility of reverter that might never ripen into an estate; and that the uses of the land for a railway and a canal are substantially and in legal effect the same, both being public uses of the like general character. Giesy v. C., W. & Z. R. R. Co., 4 Ohio St. 325-328; Lamb v. Lane, 4 Ohio St. 178; Corwin v. Adams, 12 Ohio St. 629; Junction R. R. Co. v. Ruggles, 7 Ohio St. 1; Coe v. C., P. & I. R. R. Co., 10 Ohio St. 374-407; Currier v. M. & C. R. R. Co., 11 Ohio St. 231; L. M. R. R. Co. v. Whitacre, 8 Ohio St. 590; Elson v. Seaburg, 11 Ohio St. 271, 272; Charter Canal Co., 35 L. L. 394-398, sections 3, 5, 9, 20, 35; 2 Bla. Com 15; 4 Kent. Com. 353; Neill v. N. Y. & E. R. R. Co., 2 Kernan (12 N. Y.), 132-134; S. & C. Stat. 202-204; White v. The State, 14 Ohio, 468; Street Railway v. Cumminsville, 14 Ohio St. 547.
    As to abandonment. There was no intention to abandon the right of way; but, on the contrary, the intention and object were to continue it with a different structure. The Junction R. R. Co. v. Ruggles, 7 Ohio St. 10, 11; Erie and Northeast R. R. Co. v. Casey, 26 Penn. 287.
    Whether land covered by a canal can be appropriated for a railway is not a question, we submit, that can be mooted by the plaintiff in this action. If he had a peculiar interest in maintaining the canal, by reason, for instance, of having adapted his adjacent land to it by the erection thereon of mills or wharves, warehouses and docks, and he desired to prevent the change, he must have done so in the beginning by injunction. Carpenter v. The State, 12 Ohio St. 464.
    It was competent for the legislature to authorize the appropriation of the canal by the railroad company, and the state makes *no complaint that it has been done. Redfield on Railways, [113 *130, and cases cited.
    That there was legislative authority for such an appropriation was held by Headington, J., in the case of Zinn v. Cincinnati and Indiana Railroad Company and others, in the court of common pleas of Hamilton county, citing section 12 of the act of May 1, 1852, as amended April 15, 1857; S. & C. 278; C., W. & Z. R. R. Co. v. Clinton County, 1 Ohio St. 77; Giesy v. C., W. & Z. R. R. Co., 4 Ohio St. 368; Cooper v. Williams, 4 Ohio, 286; Angell on Highways, secs. 8, 18, 49; Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109.
    
      II. As to the extent or width of the canal through the plaintiff’s premises:
    1. The berme bank embraced not only the slope of the bank, but a width of six feet on its upper surface. 35 L. L. 393, sec. 2 ; Ib., 398, sec. 20 ; S & C. 202-204; White v. The State, 14 Ohio, 468.
    2. We also refer the court to the second charge of the court below, where it will be seen that the question of the width of the canal, upon the supposition that there was an agreement with the plaintiff for a less width than that called for by the charter, was fairly left to the jury.
    III. As to the incidental damages claimed by the plaintiff:
    1. Whether this action, so far as relates to the claim for damages for incidental injuries resulting from the construction of the rail-, road, bo considered as brought under the proviso to the twelfth section of the general incorporation act, as amended in 1857 (1 S. & C. Stat. 278), or as at common law, the kind of damages and the injuries for which compensation can be claimed are the same. They are limited to injuries done to private property by the construction of the road, and do not extend to those which may be done, the extent of which, and the amount of damages resulting from them, can only, at the present time, be, at the best, the subject of guess. Broadbelt v. The Imperial Gas Co., 7 De Gex, M. & G. 459 ; Lee v. Milner, 2 M. & W. 841; Parrott v. C., H. & D. R. R Co., 10 Ohio St. 624. 114] The court below, therefore, *was right in its ruling on the fourth, fifth, and seventh claims of the plaintiff, in regard to danger to human life, stock, and from fire.
    2. The court was also right in regard to difficulty of access and ingress and egress, both upon the law and the facts. • The testimony showed that there was no basis for this claim.
    3. As to the eighth and ninth claims, relating to -watering stock, irrigation, and navigation, they were,only such as all others might enjoy, so far ás it could be legally done, in common with the plaintiff. The canal was instituted for public use, and when the necessities of the public no longer required it, the plaintiff had no claim that it should be kept up for his benefit. Cooper v. Williams, 4 Ohio, 287; Longstreet v. Harkrader, 17 Ohio St. 29; The King v. Bristol Dock Co., 12 East, 429.
    IV. As to other rulings of the court objected to by plaintiff:
    1. As to water-power for a mill. The plaintiff testified, that “•when the canal was constructed the water-power failed; and my first calculations were to locate my mill on the. lower strip. I -wer built the mill, and never got any water.”
    2. As to the deed from the plaintiff to the Ohio and Mississippi Eailroad Company for a towing-path. It was clearly res inter alios acta, and not admissible. But if it were not, no harm was done the plaintiff by its exclusion. ■
    
      D. Thew Wright, also for defendant in error:
    When the railroad company took the land of the canal company, and paid the price agreed upon, it was not necessary that Mr. Hatch should again be paid for what the canal company had taken from him. Even if, as he claims, tho transactions between the two companies were fraudulent,' etc., that would not entitle him to be paid again for the canal-bed. And it would be no concern of the plaintiff if it were true that the location and building of the railroad were without authority of law. The railroad company has taken this ground and put its track there, and it is not there any the more if its proceedings were illegal than if the contrary were true; and the very assumption of the plaintiff’s case is, that *the railroad company has taken the canal property; and [115 if ho claims damages for the act, he thereby affirms it, just as much much as if the railroad company had paid his claim.
    The railroad company claims to have acted under section 12 of the general law. There is no foundation for a charge of fraud.
    Is the plaintiff entitled to be paid for the bed of the canal?
    It is by no means true that, had the canal been abandoned, the real estate would have reverted to the original owners. Williams v. First Pres. Soc., etc., 1 Ohio St. 496; Webb v. Moler, 8 Ohio, 552; Morris and Essex R. R. Co. v. Central R. R. Co., 2 Vroom, 205.
    But how can this plaintiff claim that the canal was abandoned? Pierce’s Am. R. R. Law, 508.
    But there was no abandonment. The property is still held for a public use of like kind. 1 Ohio St. 478; Tho Junction R. R. Co. v. Ruggles, 7 Ohio St. 11; 1 S. & C. 278, sec. 12.
    The legislature may authorize property taken for one public use to be changed to another public use of a like kind, without compensation to the original owners. Lamb v. Lane, 4 Ohio St. 177; 1 Ohio St. 93. The legislature has always exorcised this power, as evidenced by the numerous statutes incorporating railroad and other companies. See also Chagrin Falls and Cleveland Plank-road Co. v. Cane, 2 Ohio St. 419, 426 ; Benedict v. Goit, 3 Barb. S. C. 459; Faust v. Passenger Railway Co., 2 Weekly Law Gazette (1858), 145 (Supreme Court of Penn.); Williams v. New York Central R. R. Co., 18 Barb. 246; Chase v. The Sutton Manufacturing Co., 4 Cush. 152.
    The canal company took the land from Mr. Hatch forever. Overseers of Boston v. Sears, 22 Pick. 126 ; Nicoll v. New York and Erie R. R. Co., 12 Barb. 464; Williams v. First Pres. Soc., 1 Ohio St. 500; Giesy v. C., W. & Z. R. R. Co., 4 Ohio St. 326. And Mr. Hatch had no interest in the real estate covered by the canal-bed which he could assign or release to any one but the canal company. Pelletran v. Jackson, 11 Wend. 111; Jackson v. Waldron, 13 Wend. 178; Needles v. Needles, 7 Ohio St. 432; Jeffers v. Lampson, 10 Ohio St. 101, 106; Murphy v. Murphy, 12 Ohio St. 416; Miller *and Wife v. Enems, 19 N. Y. 384; The People v. Kerr, 27 N. Y. 188. 116]
    There is a question that has been very much discussed in the various states, particularly in New York, as to the right to lay railroak tracks in highways; and whether, upon so doing, landholders are entitled to “ additional compensation.” When additional compensation is given to the owner of the fee, it is done upon the ground that the railroad is an “ additional servitude” upon the soil. Fletcher v. Auburn and Syracuse R. R. Co., 25 Wend. 462 ; Radcliff v. Mayor of Brooklyn, 4 Comst. 195; Chapman v. Albany and Schenectady R. R. Co., 10 Barb. 360; Trustees, etc. v. Auburn and Roch. R. R. Co., 3 Hill, 567 ; Milhau v. Sharp, 13 Barb. 193; Drake v. Hudson River R. R. Co., 7 Barb. 508; Philadelphia and Trenton R. R. Co., 6 Whart. 25; Hentz v. Long Island R. R. Co., 13 Barb. 647; Philadelphia R. R. Co., v. Yeiser, 8 Barr, 366 ; 2 Am. R. R. Cas. 145, 269, 325; Mosier v. Utica & S. R. R. Co., 8 Barb. 427; Parker v. Boston & Me. R. R. Co., 3 Cush. 107; 1 Am. R. R. Cas. 547; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294; Proprietors of Locks, etc. v. Nashua and Lowell R. R. Co., 10 Cush. 385 ; Applegate v. Lex. & O. R. R., 8 Dana, 289 ; Williams v. N. Y. Central, 18 Barb. 222; Williams v. Plank-road, 21 Mo. 580; Wetmore v. Story, 22 Barb. 414; Nicholson v. N. Y. & N. H. R. R., 22 Conn. 74; Gardiner v. Boston & W. R. R., 9 Cush. 1; Gould v. Hudson River R. R., 2 Seld. 522; Corey v. Buffalo R. R., 23 Barb. 482; Tate v. O. & M. R. R., 7 Porter (Ind.), 479; Hatch v. Vt. Central R. R., 25 Vt. 49; Richardson v. Vt. Central, 25 Vt. 465 ; Imlay v. R. R., 26 Conn. 249 ; Williams v. R. R., 16 N. Y. 91; Wager v. Troy Union R. R., 25 N. Y. 526; People v. Kerr, 27 N. Y. 188.
    Does the railroad deprive Mr. Hatch, of any use of that strip of ground forming the canal-bed, of which the canal had not already deprived him ?
    Is the danger from fire a legal ground of damage?
    If the railroad is authorized to run locomotives, the mere doing of a lawful thing could not be a cause of action. Rood v. New York and Erie R. R., 18 Barb. 80; Mosier v. Utica and Schenectady R. R., 8 Barb. 427.
    *We claim that this danger from fire is among that class of [117 injuries which is common to the whole community, and for which no private person can maintain his action. The principle is recognized in Parrott v. The Cincinnati, Hamilton, and Dayton R. R., 10 Ohio St. 624. See Farrelly v. Cincinnati, 4 Weekly Law Gazette, 33, where all the authorities are collected and discussed; 1 Redfield on Railways (2 ed.), 294; Bradley v. N. Y. & N. H. R. R., 21. Conn. 394; 2 Am. R. R. Cas. 145; Smith v. Boston, 7 Cush. 254; Proprietors of Locks and Canals v. Nashua R. R., 10 Cush. 385 ; Hatch v. Vt. Central, 25 Vt. 59-67.
    Similar questions have been discussed in England. 1 Bla. Com. 160 ; The King v. Bristol Dock Co., 12 East, 429 (523) ; Caledonia Railway v. Ogilvie, 29 E. Law & Eq. 22; King v. London Dock Co., 5 Ad. & El. 163; Ricket v. The Metropolitan Railway Co., XI. Jur. N. S. 260; Queen v. Vaughn, in Queen’s Bench, Weekly Notes of Law Rev., Nov. 14, 1868, p. 253; Winterbottom v. Lord Derby, 2 Law Exch. 316.
    On the matter of inconvenience of access, the testimony was admitted. It is an inconvenience common to all; and besides it is inappreciable by any rule of value.
    As to the use of the water for irrigation, watering stock, etc., plaintiff did not claim any right to it, only that he had been accustomed to use it without objection. The canal company themselves might have prohibited it any day. The testimony on this point was also heard. He could not have any such right, for the statute prohibited driving any animal on either bank of the canal. S. & C. 202; White v. The State, 14 Ohio St. 468. Besides, he did not offer to prove that he had any stock to water, and the river was but a few feet further.
    As to the use of the canal for transporting or unloading lumber, etc., it relates to the ordinary use of the canal in common with all other citizens. No special damage or special right is alleged. Even if such damage, common to all the community, could be claimed, plaintiff offered no evidence by which it could be appreciated by any principle of law.
    As to the mill privilege, court allowed the evidence to be given 118] *of what passed in relation to it, and the evidence makes no color of olaim.
    As to the proof offered that the appropriation of the canal by the defendant was illegal and void and fraudulent, inasmuch as an inadequate price was paid for it, this question surely can not be made between these parties.
    As to the additional strip of ground, the evidence was fully admitted, and the strongest charge given in favor of plaintiff which he could ask.
    As to the berme bank, the most that can be made of plaintiff’s statement is, that he was allowed to occupy it; but if he had attempted to cut it away, no doubt he would have been promptly stopped.
    The rejection of the deed to the Ohio and Mississippi Railroad needs no comment.
   Brinkerhoff, J.

The bill of exceptions taken in this case incorporates within it all the evidence given on the trial; and a motion having been made for a new trial, on the ground, among others, that the verdict was not sustained by sufficient evidence, and that motion having been overruled, and the ruling excepted to, a foundation is laid, under our practice as prescribed by statute, for a review of the finding of the jury on matters of fact. Accordingly we have read and considered the evidence; but as its incorporation in the report of the case would be intolerably tedious, and of no practical value to any one, suffice it to say that if the rulings of the court below on matters of law shall be found to be free from error, we would not, in this case, disturb the verdict of the jury on matters of fact. '

We proceed, then, to the consideration of the matters. of law which the case presents; and to this end we are led, in the first place, to the inquiry: What is the nature of the plaintiff’s ease as made by himself? And on what theory, in respect to it, does he begin and proceed in it ? • It is not an actioxx for the assertion of title to, nor for the recovery of possession of, real estate, nor for the recovery of damages for trespass on real estate; but, both from the allegations of the petition and.from the matters of fact proposed to be offered in evidence to the jury, it is apparent that his action is, and *was intended to be, one for the recovery of [119 compensation on account of the permanent appropriation by the railroad company of his land to its use, and of incidental damages thereby accruing to his other lands for all time to come. Ho questions the right and legal authority of the railroad company to make the appropriation against the canal company, but proceeds upon the assumption that the appropriation has in fact been made; and it is apparent from the record that the case was tried in the court below on this assumption.

It is claimed in argument by the railroad company, that under section 12 of the act of May 1, 1852, “to provide for the creation and regulation of incorporated companies,” etc. (8 Curwen’s Stat. 1880), it had the power, in invitum, as against the canal company, to appropriate the canal for the purposes of its railroad; and if it were necessary in this case to pass upon this question, we should find it to be one not easily resolved in favor of the authority claimed. The power of one corporation, in the exercise of the delegated right of eminent domain, to appropriate, without consent, to its own uses, what constitutes the material body of another corporation, aud which the latter has obtained by the exercise of a like delegated authority, is a power so extraordinary and so susceptible of abuse, that its existence certainly ought not to be inferred from statutory phraseology of doubtful import. But we do not find it necessary in this case to pass upon the question, for it is sufficiently apparent that the proceeding by which the canal was transferred from the canal company to the railroad company, though adversary in form, was in fact an amicable one — a matter of bargain and sale — and the canal company is not here complaining. Its rights are out of the case, except in so far as it may be necessary to consider them incidentally, with a view to the determination of the rights of the plaintiff, Hatch ^ and, as against him, the right of the railroad company to make the appropriation by a proper proceeding is unquestionable.

How, then, stands the case as to him? As before observed, he does not in his action seek to contest the fact of appropriation, nor to undo, it. He does not seek to recover, the land *from, nor [120 to enjoin its use by, the railroad; and, indeed, it is not apparent how he could successfully do either, for, from aught that appears in the caso, there is nothing to show that he did not stand by (with full knowledge of what was being done) and sec the canal filled up and the railroad constructed, under a claim of right to do so, without any attempt on his part to prevent it; and if this were so, he would hardly be permitted to contest the appropriation as an accomplished fact. It is, however, contended in his behalf, that the voluntary giving up of the canal, as a canal, by the canal company, to the railroad company, for the uses and purposes of a railroad, is such a change of the uses and purposes to and for which the original appropriation was made by the canal company, as to constitute an abandonment by the canal company of its easement obtained by the original appropriation, in virtue of which abandonment the land, disincumbered of the easement of the canal company, has reverted to him; and that, therefore, the amount of compensation which he is entitled to exact from the railroad company is to be measured by the value of the land, rather than by an estimate of the additional burdens which the change of uses to which the land has been subjected impose upon him. In this view of the case, however, we are unable to concur.

The right of eminent domain (the right to subject private property to public uses, with the concurrent obligation to make full compensation therefor) is inherent in the state, and when it is lodged to any extent in corporations it is a delegated right, and is limited by the uses for the furtherance of which, on the ground of public policy, it is conferred. 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. When the original appropriation of the plaintiff’s lands was made for the purposes of a canal, it was a matter of interest both to the state and to the canal company. The power^to make it was 121] conferred on the canal ^company because it was in furtherance of state policy for the public good; and the power was exercised by the canal company in furtherance of its own supposed corporate interests. These interests of the canal company, and this policy of tho state, might be abandoned; and it is conceded that, if they were abandoned, tbe land, disincumbered of the easement imposed by the act of appropriation, would revert to the holder of the title in fee simple. But the question of abandonment or not, is a question of intention. Junction Railroad Company v. Ruggles, 7 Ohio St. 1. And the intention to abandon may doubtless be inferred from circumstances, where they are strong enough to warrant such inference. But here there are no circumstances indicative of an intention to abandon the easement acquired by the original appropriation, either by the canal company or by the state. The canal company, so far from abandoning it, has sold it, and put the price of it into her treasury; and the state has given no indication of her intention to abandon it. She has not proceeded by information in the nature of quo warranto, or otherwise, to question the franchise of the railroad company to operate its road upon the land formerly used by the canal company; and her policy of permitting railroad companies to condemn lands to their use remains patent on her statute books. The easement in the plaintiff’s land, appropriated by the canal company, was regarded, when taken, as a perpetual easement; it was so looked upon by both parties; courts and juries awarded compensation to the plaintiff on this basis; and he can not now claim, with any semblance of justice, to be paid over again for the same thing. Whether there may or may not be a case of such an utter contrariety in the uses for which a first appropriation was made and those to which the land is afterward sought to be devoted, as necessarily to work an abandonment of the easement, and so a reversion to the owner in fee, we will not assume to say; but such, we think, is not this case. The general purposes to which the easement was and is applied, are the same; to wit, the purposes of a public way, to facilitate the transportation of persons and property. Means and appliances are different, but the objects *are [122 similar; and the legislation of the state has always favored both.

The plaintiff, then, was entitled to compensation from the railroad company for the full value of such land as it may have taken from him not embraced in the appropriation made by the canal company; and for such additional burdens as may have been imposed upon the lands covered by the original appropriation; and for damage dotie or accruing to his adjacent lands, by reason of the additional appropriation, if any, and of the change of structure and of use from those of a canal to those of a railroad, in so far as such damages are peculiar to himself as a proprietor, and not common to the public at large. ..As the owner of land, subject to a perpetual easement, but appropriated and paid- for only for the purposes of a canal, he had rights which the railroad company can not be permitted to ignore; and which, we think, it ought to have instituted proceedings regularly, under the statute, to condemn and pay for, before it ventured to divert the easement to uses so variant from those originally intended. But this not having been done, and the plaintiff having resorted to this action for compensation, the rights of the parties are governed by the same principles which would have been applicable in such a proceeding.

The general principles applicable to the case having thus been disposed of, the particular rulings of the court below alleged for error remain to be considered.

And as to these rulings, we are of opinion:

The plaintiff, in his own testimony as a witness, does not claim that any contract ever existed between him and the canal conqmny for a water-power to be furnished by it to him, nor that any such power was ever enjoyed by him. For this, and for other reasons, there was no error in the rulings of.the court below in respect to it.

The court below did not err in ruling that the plaintiff had no well-founded claim for damages on account of the loss of the convenience of watering farm stock at the canal, nor for the loss of the convenience of navigating the canal for his own private purposes. The property of the canal company in its canal was absolute; and 128] its right of control over it was ^exclusive; it might have fenced in its canal, and fenced out the plaintiff from any access to its waters, and so have excluded him from either or both of these conveniences, and he would have had no legal ground of complaint. If, during the existence of the canal, he enjoyed either of these conveniences, it was as a matter of sufferance by the canal company, and not as a matter of right against it.

The court below held that in so far as the plaintiff’s access between public highways and his adjacent lands were affected to his inconvenience or damage by reason of the change of the uses of the easement from those of a canal to those of a railroad, he was entitled to compensation ; but, if his convenience of access to and from his lands and the highways adjoining them remained the same, the fact that his passage along public highways to and from one portion of his lands and another was by such change made less safe or convenient, he was not on this account entitled to any compensation, because it was an inconvenience which he suffered in common with the public at large. In thus holding, we can not but think that it erred. As a matter of fact, is the inconvenience one which the plaintiff suffered in common with the public at large? Let it be remembered that the plaintiff was at first the owner of an entire tract of land; and that this was, first by the canal, and afterward by the railroad, cut asunder. His tract being thus cut into two parts, his means of access from the one to the other were by a turnpike and a county road — the former running through, and the latter along the side of, his original tract; and the fact assumed is, that these means of access from the one part of the tract to- the other were made inconvenient and dangerous by reason of cuts and embankments, one or both, made by the railroad. It seems to us that his case differs from that of a member of the public at large, in this, that the latter is only inconvenienced in a matter of ordinary travel, as in the case of Jackson v. Jackson, 16 Ohio St. 163; while the plaintiff, in addition to this, is subjected to inconvenience- and danger in the ordinary use of his property, which involves the-necessity of constant and necessary passage by him from one part, of it to the other. By the case of Crawford v. Delaware, *7 [124 Ohio St. 459, and many other cases, it has become the settled doctrine in this state, that where the public authorities change the grade of a street in a manner which an owner of land adjacent to-it could not by the exercise of reasonable foresight have anticipated in the making of his improvements, and thereby injuriously affects-his means of access to and from his land and the street, the public becomes liable to him for the damage thus inflicted. And it seems, to us that there is no difference in principle between that case and the one assumed in the question under consideration. In both cases a land-owner is prejudiced in the use and enjoyment of his-private property, and in manner and degree not common to the public at large. This view of the point under consideration is-sustained by the remarks of Chief Justice Shaw, in Proprietors of Locks and Canals v. The Nashua and Lowell R. R., 10 Cush. 385, and by the court in Roman v. Strauss, 10 Md. 89.

The questions whether, on the appropriation of land for the purposes of a railroad, inci’eased danger of fire to buildings on adjoining lands of the owner on whom the easement is imposed, is-a proper element in the estimate of damages on -account of such appropriation, and if so, how far, are theoretically and practically of no little difficulty. In this state there has been no authoritative decision of them, and in other states the decisions are conflicting. Somerville and Easton R. R. Co. v. Doughty, 2 Zabriskie, 495; Sunbury and Erie Railroad v. Hummel, 27 Penn. St. 99. Chief Justice Shaw, in 10 Cushing, 385, supra, aiming apparently to split the difference between conflicting claims, expresses .the opinion that .danger from fire may enter into the estimate of damages if the danger be “ imminent and appreciable.” But this is shadowy and indefinite, and furnishes rather the semblance than the reality of a rule of discrimination. Nevertheless, it is perhaps as good as any of which the nature of the case admits.

In its charge to the jury, the court below said: “ The plaintiff sought to recover damages for certain incidental injuries which he alleges he sustained in consequence of the conversion of the canal into a railroad. As to most of the matters embraced .by this claim, 125] I was satisfied they did not form a *proper subject for compensation in damage, and therefore excluded the evidence offered. But, as to two of them, evidence was received. The first was as to increased danger from fire to the buildings, fences, and other property on the plaintiff’s land. When this evidence was offered, however, I became satisfied it was not sufficient to establish any appreciable increase of danger from fire, that any attempt to estimate ■damages from it would only involve the most uncertain conjectures, .and that it ought to be withdrawn from your consideration. I ■therefore rule out all evidence upon this point.”

Looking into the evidence embodied in the bill of exceptions, we ¡find the plaintiff has a house about one hundred and fifty feet from the railroad, on the south side, and that he has a barn about one hundred, and a house about two hundred feet from the railroad, on "the north side. We are not prepared to say, as at present advised, that the court below erred in its ruling on this point, and it is fairly ■entitled to the benefit of our serious doubts ; and, on the whole, we •prefer, on the general question, to await the possible revelation of ■.further light upon it.

In what was said by the court below in its charge to the jury, in respect to the berme bank of the canal, we see no error. A berme bank for the canal was necessary for the uses of a canal; .and whether it consisted of a natural or artificial deposit of earth ■can make no difference. It must have formed a part of the original .appropriation by the canal, unless there were a special agreement to the contrary, and its dominion over it was, in law, exclusive. The plaintiff had full opportunity to show a special agreement to the ¡contrary, if such existed; and if, during the existence of the canal, without such contract, he had the use of the land up to the water’s .edge, it was as a matter of sufference and not of right.

For error in the charge of the court below, in respect to the third point above considered, the judgment is reversed, new trial awarded, ¡and cause remanded.

Day, C. J., and Scott, White, and Welch, JJ., concurred.  