
    INTEREST IN LAND ACQUIRED BY RAILWAY COMPANIES BY APPROPRIATION.
    Common Pleas Court of Montgomery County.
    Minnie L. Caldwell and William H. Lohman v. The Cleveland, Cincinnati, Chicago and St. Louis Railway Company.
    Decided, November 22, 1927.
    
      Appropriation — Rights Acquired by Railways — Use to which Land so Acquired may be Applied — Includes not only Present but Future Convenience and Necessity — Section 110A2.
    
    1. In the appropriation of land by a railway company the interest acquired is not limited to that proposed at the time of the appropriation, but permits of any use which the public convenience and necessity may from time to time require.
    2. The fact that the drawing attached to the petition of a railway company for appropriation of a strip of land showed but one track to be laid thereon, does not entitle the land owner to a mandatory order for removal of a second track subsequently laid on the strip.
    
      Mahlon Gebhart, for plaintiff.
    
      Kevin & Kalb fus, for defendant.
   Snediker, J.

This case is before the court on a general demurrer to the petition on the ground that it does not state facts which show a cause of action. The plaintiffs are the owners of and are in interest in certain real estate south of the city of Dayton in Van Burén township this county. They allege that in September of 1924 the defendant company instituted an action in the probate court against them .for the appropriation of a right of way over such real estate; that there was an allegation in the petition in the probate court as to metes and bounds of the real estate sought to be acquired; that there was attached to the petition a plan or drawing of the proposed construction and illustrative of the use to which the. land was to be put if appropriated; that the drawing only showed one additional track after the spur track on the right of way of the railroad company was completed, and that it was not intended in the proceedings in the probate court and the drawing did not show any intention to build more than one track as the result of the appropriation.

The testimony bore out the same facts. The court charged the jury under the same impression and the damages were awarded with these things in the mind of the jury. The plaintiffs say now there has been placed upon the ground so appropriated an additional track of the company; that the laying of what is in fact two tracks counting the one which they complain of is in violation of the plan of the proceedings, constituting a misappropriation and use of the land and a violation of the plaintiffs’ rights. As a result of the foregoing, a mandatory order is asked requiring the railroad company to remove the track which these plaintiffs claim is laid in excess of the rights of the railroad company.

The sections of the Code under which the proceeding was brought in the probate court included 11042 which reads:

“In such a case the corporation may file a petition with the probate judge verified as in a civil action containing a specific description of each parcel of property, interest or right within the county sought to be appropriated, the work, if any, intended to be constructed thereon, the use to which the property is to be applied, the necessity for the appropriation, the name of the owner of each parcel, if known, or if not known, a statement of that fact, the names of all persons having or claiming an interest legal or equitable in the property so far as can be ascertained, and a prayer for an appropriation.”

By the expression “the use to which it is to be put” is intended to require of the railroad company that it shall appear on the record whether such use is public or otherwise, and we may say as well that the same purpose may be attributed to the requirement that the work intended to be constructed on the property to be appropriated shall be described. It is true that when a court allows a corporation to appropriate private property for its own use, its order ought to be strictly construed, and to ascertain the scope thereof it is necessary to resort to the record in the case in which the appropriation was made. Doing this, the plaintiffs complain because of their idea that there is a violation of the right of the railroad company in laying more than one additional track. This- having been demurred to, presents the question as to whether or not having made its appropriation the railroad company is confined to the exact details of its plan and limited to the number of tracks therein portrayed, or in their petition described in the court below.

Nichols in his work on Eminent Domain, Vol. 1, page 602, says:

“It is the rule in most jurisdictions that when land is taken for railroad purposes, the estate or interest acquired by the company is not merely the right to construct and maintain a railroad in accordance with the original plans, but it is the easement to make any use of the land for railroad purposes that the public necessity and convenience may from time to time require; and consequently the owner of the fee is not entitled to additional compensation for a change or increase in the use, so long as it is for railroad purposes. The company may therefore change the grade of the roadbed or the gauge of the tracks, or lay additional tracks at any time.”

In the case of Brainard v. Clapp, 10 Cushing (Mass.), page 6, the Supreme Court say:

“The right and power of the company to use the land within their limits may not only be exercised originally, when their road is first laid out, but continues to exist afterward; and if after they have commenced operations it is found necessary in the judgment of the company to make further uses of the land assigned to them, for purposes incidental to the safe and beneficial operation of the road, by raising or lowering grades, cutting' down hills and removing trees they have a right to do so to the same extent as when the railroad was originally laid out and constructed.”

There is found in the 80th New Jersey Law Reports at page 349, the case of Manning et al. v. New Jersey Short Line Railroad Company, in which the first syllabus reads as follows:

“A railroad company authorized by Section 13 of the General Railroad law to condemn land acquired for its right of way, having taken proceedings under the Eminent Domain act of 1900, the condemnation carries with it every right necessary to enable the company to use the land for the special purposes of a railroad, including the right to lay as many tracks and as near the line of its right of way as the overhang of its engines and cars will admit, and to run over its tracks rolling stock, passengers, baggage and freight of any weight and at any speed practicable in the operation of a railroad according to present or future lawful methods, and .all this weight must be supported laterally by the remaining land.”

In the 39 Indiana, pages 51-52, the rule is laid down that:

“An interurban railroad has the right to lay any desired number of tracks on its right of way and to run any desired number of cars thereon; and the damages therefor must be made, if at all, in the original condemnation proceeding.”

To a like effect is the case of Walker v. Illinois Central Railroad Co., found in 215 Ill., at page 610.

In the case of Louisville & Nashville Railroad Co. v. Scomp, 30 Ky. Law Rep., page 487, the court had before them a case very similar to the one we are now considering. The first syllabus which is supported by the decision reads as follows:

“Where a railroad company by condemnation proceedings acquired the right of way to a strip of land through a farm, it had the right to use such a strip not only for one track which it originally built, but for such additional tracks as from time to time it may find to be necessary for its business, and all damages for the proper use of the strip for railway purposes are included in the original assessment.”

We could multiply authorities to the same effect, but regard it as unnecessary because all of the foregoing are entitled to full faith and credit and to be followed.

In view of what we have said, the demurrer is' sustained.  