
    Edward Van Husen et al, Appellants, v. The Omaha Bridge and Terminal Railway Co., Appellee.
    1 Condemnation: estoppel by deed. A grantor is estopped by his deed from claiming that he had no interest in the land at the time of his conveyance.
    2 Deed; parol testimony: admissible when. Where there is no uncertainty or ambigaity in a deed, parol evidence is not admissible to show the intent of the parties.
    3 Same. Parol testimony is not admissible to show that a roadbed is a fixture, and does not pass by deed, ip the-absence of an express reservation in the deed.
    4 Same: when and what property passes by a deed. Where a deed refers to a certain contract as the consideration therefor, bnt no reference to the contract is made in the granting clause, the deed conveys the property as it stood at the date of its execution.
    5 Damages: when to be determined. Upon the condemnation of laud for, railroad purposes, damages should be allowed as of the time of entry by the company upon the land.
    
      Appeal from Pottawattamie District Court. — Hon. N. W. Macy, Judge.
    Wednesday, October 29, 1902.
    Condemnation proceedings to assess the amount-of damages to which plaintiffs are entitled by reason of tbe occupancy of a part of their lands by the defendant railway company. From the award made by tbe district court, plaintiffs appeal.
    
      —Affirmed.
    
    
      Cains, Kelby <& Storey and Stone da linley for appellants.
    
      Wharton <& Baird and Karl da McCabe, for appellee.
   Deemer, J.

Sometime in the fall of the year 1889 the Union Pacific Railway Company commenced the construction of the roadbed in question. At that time the ownership of the land on which the railway was constructed, together with other lands in what is known as the “East Omaha Bottom,” was in dispute. The Union Pacific Company, the East Omaha Land Company, and the Nebraska Perry Company, and Anthony W. Street, its trustee, claimed ownership of portions of the land lying in that bottom; the boundaries of the respective tracks being unknown, and in dispute. Soon after the Union Pacific Company commenced the construction of its road, Street, trustee, commenced action for the purpose of enjoining the railway company from constructing its road over the land now in dispute, claiming that the same was owned by the Nebraska Ferry Company. At the same time an action was pending in the federal courts of Nebraska, in which Street was complainant, and the East Omaha Land Company and others were defendants, the purpose of which was to determine the boundary lines of the several tracts of land, and to quiet title thereto - in the respective claimants. These ■suits were settled by an agreement signed by all the parties, in which the Union Pacific Company was named as party of the first part, the East Omaha Land Company as second, and the Nebraska Ferry .Company as third party. The material parts of that agreement are as follows: “Whereas, divers controversies and disputes have sprung-up between the parties hereto, touching the title to the premises hereinafter described, and a certain bill in equity is pending in the United States circuit court for the district of Nebraska between the said Anthony W. Street, plaintiff, and the East Omaha Land Co., defendant, for the quieting of the title to certain of the said lands in the said plaintiff; and another action is pending in the district court of the state of Iowa, for the county of Pottawattamie between tbe said Street, plaintiff, and the said Union Pacific Bailway Company and others, defendants, to restrain the construction by said defendants of a railroad over and upon certain of said lands; and whereas, the said parties have agreed to settle and compromise their said differences as hereinafter set forth: Now, therefore, for the said purposes it is hereby agreed between the parties hereto as follows: (1) The said Street agrees to cause to be dismissed out of said two courts his said two actions above mentioned, and the said defendant in the’said action secondly above entitled releasing him from all damages on account of the injunction allowed and issued therein. (2) The said second and third parties each for itself, and not one for the other, covenants and agrees to and with the said first party to make to it their several deeds of conveyance of all that certain piece or parcel of land described as follows, that is to say: [Here'follows description of lands not in controversy in this action.] (3) The said first and second parties each for itself, and not one for the other, covenants and agrees to and with said third party to make to it, or to such person as it may appoint in that behalf, their several deeds of conveyance of all that certain piece or parcel of land described as follows: [Here follows a description of premises which include the land in ■question.] (4) The said second party covenants and agrees to and with said third parties to make to such jiarties as the said Council Bluffs arid Nebraska Ferry Company may appoint in that behalf a deed of conveyance of all that certain piece or parcel of land described as follows: [Here follows description of premises not in controversy.] (5) The said third parties covenant and agree to and with said second party to make the said second party a deed of conveyance of all that certain piece or parcel of land described as follows: [Here follows a description of land not in controversy.]” Immediately after the execution of the agreement the Union Pacific Company proceeded with the construction of its roadbed, and completed the same on or about December, 1900. This roadbed consisted of an embankment some six feet high, thrown up from the adjacent soil; and the south side of the embankment was riprapped with stone, to protect it from the ravages of the Missouri river, which, as we understand it, parallels the right of way for nearly its entire length. This embankment also served as a levee or dyke, preventing the overflow of high water upon the lands owned by all of these parties, which are low and flat. The road was built primarily to furnish trackage and railway facilities for the East Omaha Land Company, which was endeavoring to sell its lands, and to establish manufactories thereon; and was built under some kind of a contract or arrangement, the exact purport of which is not in evidence. By the terms of the settlement to which we have already referred, the Union Pacific Company was to convey the land in controversy, which is occupied in part by the roadbed erected by that company, to the Nebraska Perry Company or to A. W. Street as trustee; but for some reason, not fully explained, the deed was not made until December 10, 1892.

As the controlling points in the case turn upon the effect to be given this deed, we here set out the material parts thereof. After reciting the general facts set forth in the instrument of settlement, it recites: “That the said party of the first part (Union Pacific Railway Co.) in consideration of the sum of one dollar, to it in hand paid, the receipt whereof is hereby acknowledged, and in further consideration of the premises aforesaid, has granted, bargained, sold, remised, and quitclaimed, and by these presents does grant, bargain, sell, remise, and quitclaim, unto the said party of the second part, his heirs and assigns, forever, the following described real estate: [Being land in controversy herein and other lands]; together with all and singular the hereditaments and appurtenances thereunto belonging; to have and to hold the above-described premises unto the said Anthony W. Street, trustee, his heirs and assigns, so that neither the said Union • Pacific Railway Company, nor any person in its name and behalf, shall or will hereafter claim or demand any right or title to the said premises, or any part thereof, but that they, and everyone of them, shall, by these presents, be excluded, and forever barred. And the said party of the first part hereby specially covenants that the said premises are free from any incumbrance placed thereon by it, and it further specially covenants to warrant and defend the title to the same as against any and all persons claiming through or under it, or its successors or assigns,” — duly'signed and acknowledged December 16; 1892. In the fall of 1892 plaintiffs began negotiations with Street and the ferry company for the purchase of the lands in controversy; with other lands, and on December 30th of that year acquired title thereto from the ferry company by a deed of general warranty. On January 12; 1893, Street also conveyed to the plaintiffs by a like character of deed; but both contained this exception: “Subject also to right of way, if any, over said premises, fifty feet wide; now occupied by the tracks of the Union Pacific Railway Go.” The deed from the Union Pacific Railway Company was made, while the negotiations were pending resulting in the plaintiffs’ acquirement of .title. It was procured by one John R. Webster, who represented the ferry company. Webster said, while on the witness stand, that he was endeavoring to clear up the title, and that plaintiffs would not buy the land unless the title was clear. The Union Pacific Company was then in possession of the part of the land covered by its roadbed and tracks, and Webster testified with reference thereto as follows: “At the time of the negotiations I went over the land with Mr. Van Husen, and this track with the embankment came up. There wras some conversation between us with reference to the ownership of that right of way,. and matters of that kind. I could not tell exactly what I said, but my recollection is that I did tell him that we could get a deed from the Union Pacific Railway Company with reference to that. I think I told him of the deed which was already drafted, but had not been executed. The contract for this deed from the Union Pacific had been made some time in December, 1889. The fact is, the Detroit people said, unless they got the right of way, they did not want to purchase. I don’t thinir I can give the words we used, but the Detroit syndicate people, represented by Mr. Yan Husan, would not make the purchase if the land was going to be divided by a track; and I was anxious, of course, to get something that would suit them, and get them to buy the land, because I was assisting Mr. Potter, and I may have said a good many things there that I forget, now.” He also testified, with reference to the exceptions, in the deed from the Nebraska Ferry Company and A. W. Street, as follows: “I had some difficulty over that clause in those deeds, and I think I probably used the Union Pacific deed to satisfy the syndicate people that that clause really did not amount to anything. I know I tried to do it at that time.” Mr. Yan Husan, one of the plaintiffs, testified as follows with reference to this transaction: “I cannot say positively waen I first learned anything concerning a claimed mistake in the deed of the Union Pacific people; but it was a long time after we purchased the property, and after the deal was closed. This question of the right of way of the Union Pacific came up on the day of the negotiations for the purchase. We and Mr. Webster went over the land, and we saw the track and embankment there thrown up, and we asked Mr. Webster if that belonged to the laud, an l Mr. Webster said no, that it did not, that it belonge l to the Union Pacific road, and they had put it there. We asked if they had any rights there, or any permission from the property owners, and he said no. He said they had no rights except by sufferance. We told Mr. Webster that he must procure a deed from the Union Pacific road in this deal, and he said he would. I don’t remember now whether he said the deed was drafted but anyway the deed that has been offered in evidence was the deed he procured in compliance with our request. We bought the land relying on the title that was conveyed there. When the Detroit people purchase! the land, they bought it relying upon the title as conveyed by the deeds. ” It is also shown that after the deed from the Union Pacific Company was obtained Mr. Webster went to that company to have a correction deed executed, and in the conversation with its attorney that official said that when they executed the new deed they should reserve out of it the right of way they were then occupying with their tracks. No new deed was made, but it is shown that the Union Pacific Company knew at that time that the deed it did execute contained no exceptions or reservations. It will be observed in passing that the railway company did not at that time claim that there had been any mistake in the deed, nor is such claim made now. In March of the year 1891 the United States circuit court of Nebraska rendered a decree in an action wherein the Union Pacific Railroad Company was complainant and the East Omaha Land Company and certain railway companies were defendants, wherein it was found that the railway company had no interest in the land on which it had built its tracks, but that it was entitled to reimbursement for money expended in building the same in the sum of $85,000; and it was further ordered that upon payment of said sum to the Union Pacific Company or to its receivers the said company will be barred from any right, title, or interest in or to said tracks under the contract aforesaid, and that it shall convey by quitclaim deed all its right, title, or interest therein to a right of way of the width of one hundred feet, being fifty feet on each side of the center line of its said track, from the commencement point of said track as hereinbefore described eastward. None of plaintiffs or their grantors were made parties to this action. The amount awarded to the Union Pacific Company was paid. The Nebraska Construction Company, another corporation, undertook to procure from the Union Pacific Railway Company, for the benefit of the defendants herein, all its tracks, franchises, rights of way, etc., on and over the lands of the East Omaha Land Company; and this construction company, as we understand it, paid the $85,000 awarded in the decree of the United States circuit court; and, having procured whatever rights the East Omaha Land Company had in virtue of the decree, it transferred the same to the defendant the Omaha Bridge & Terminal Railway Company, which took possession thereof on the 31st day of March, 1894, and has continued to use and oc cupy the same down to this time. The track, etc., so taken possession of includes that in dispute, which occupies something like 3.54 acres of land, as well as the track running over the lands of the East Omaha Land Company. - This proceeding was instituted by defendant for the purpose of condemning this 3.54 acres of land, and the questions arising on this appeal are: First, who is entitled to the roadbed and embankment erected by the Union Pacific Company? and, second, as of what date should damages be be assessed?

The value of the roadbed and embankment is stipulated to be $4,903.45. Defendant contends that it acquired title to the roadbed and embankment in the manner above indicated, and that damages for the land itself should be assessed as of the date of the commencement of the condemnation proceedings, or at any rate not before March, 1894, when it took possession of the property; while plaintiffs contend that it holds title to the roadbed and embankment, as well as the land occupied thereby, in virtue of the deed from the Union Pacific Railway Company to its immediate grantors; and that damages should be assessed from the time the Union Pacific Company originally entered upon the land. The trial court found that defendant was the owner of the roadbed and embankent, and that damages should be assessed as of date March 31, 1894. Should we find that the improvements — the roadbed and the embankment — belong to the plaintiffs, theii the decree awarding compensation as of date March 31, 1894, is correct, but to the amount allowed should be added the value of this embankment. On the other hand, if that question is decided adversely to appellants, then the question of the date at which compensation should, be awarded becomes material. From the statement already ma 'e it will be seen that the case turns largely, if not entirely, on the effect to be given the deed of the Union Pacific Company under date of December 16, 1892. Incident to that point is the effect to be given the decree of the United States circuit court in the case of the Union Pacific Company against the East Omaha Land Company et al., and the transfer by the latter company or the Nebraska Construction Company 'to the defendant. The exact terms of that transfer, taken from the records of the construction company, were as follows: “.Whereas, an agreement was made between the Omaha Bridge and Terminal Railway Co., then known as the Interstate Bridge and Street Railway Company, and this company, under date of August - st, 1892, wherein this company agreed to construct and complete for use a bridge across the Missouri river be ■ tween Council Bluffs, Iowa, and the 'lands of the East Omaha Land Co., with a draw span 520 feet long, for a double-track railway, on a permanent pivot pier, with detailed specifications, according to plans, etc., and in said contract the construction company did further agree to procure a conveyance from the Union Pacific Co., of all tracks, franchises, and rights of way on the lands of the East Omaha Land Oo., and it did further agree to make certain connections between the tracks of the bridge company on the east side of the Missouri river and the tracks of certain other railroad companies as in said contract specified, and also to procure a conveyance of certain lauds as in said contract speci .ed; and whereas, this company ''as performed all its obligations under said contract; and w. ^eas, the said Omaha Bridge and Terminal Oo. has caused to be delivered to this company one million of its bonds, secured by a first mortgage, etc., and has delivered to this company seventy-five hundred shares of its cap tal stock and seventy-five hundred shares of the capital stock of the East Omaha Land Oo. in full payment of the consideration of the contract hereinbefore mentioned, and as payment for all the work done, material furnished, and lands purchased and delivered: Now, therefore, this company does hereby acknowledge complete and full satisfaction of said contract, and does hereby authorize and direct John R. Webster, general manager of this company, to turn over and deliver to the Omaha Bridge and Terminal Railway Oo. all of said property, lands, tracks, and equipment, together with all material on hand, and all rights and franchises in connection with the same; to have, and to hold the same to the Omaha Bridge and Terminal Company, its successors and assigns, forever.”

It will be noticed that this resolution, which was duly adopted by the corporation, purports to convey only the tracks, franchises, and rights of way on the lands of the East Omaha Land Company, and that these plaintiffs were not parties to the litigation between the Union Pacific Company and the land company, nor were they in privity with either. The roadbed in question was not built on lands belonging to the East Omaha Land Company, but on the property of the Nebraska Ferry Company,■ or A. W. Street, trustee, and defendant’s title thereto is doubtful, tp say the least. It admits that it does not .own the land on which these improvements were made, and, of course, cannot trace title to the ferry company or to Street. The exact arrange^ ment under which the Union Pacific Company built the embankment is not shown. All that we have with reference-thereto is the decree of the United States circuit court, to which we have already referred; and that, of course, is not binding on these plaintiffs. Neither would the contract between these two companies be binding on plaintiffs or their grantors-, for they were not parties thereto. But we do not care to rest our decision on this ground, although defendant’s title to the roadbed and improvements in question is extremely doubtful. The Union Pacific Company went upon the land in question knowing that it had no title thereto, and from the land itself made the embankment in controversy. It added some riprapping to hold the embankment in place, and put ties and rails thereon. It was not, perhaps, a trespasser, for it had the implied consent of the owners to enter and make the improvements. We are not prepared to say that, in the absence of a deed for the land on which the embankments were constructed, the Union Pacific Company could not enter upon the land and remove the ties and rails, and perhaps the stone hauled there by it, or that it could not transfer its rights to another railroad company, so that that company might proceed by ad quon damnum proceedings to acquire title to a right of way, under the statutes of this state, without paying the owner for these improvements. But the question before us is much broader than this. The Union Pacific Company, after erecting its improvements, made a deed of bargain and sale to the land on which the same was located to plaintiffs’ grantors. This deed also contained covenants of special warranty, and was made, as the witnesses say, from whom we have quoted, to quiet the title to the right of way. True, the Union Pacific Company did not, through auy 0f agents, make such representations; and the case must turn on the effect to he given this deed. It is a familiar principle of law that no one shall be allowed to dispute his own solemn deed; in other words, he ig estopped by his deed from saying that he had no interest in the land at the time of his conveyance. De Frieze v. Quint, 94 Cal. 653 (30 Pac. Rep. 1, 28 Am. St. Rep. 151); Stow v. Wyse, 7 Conn. 214 (18 Am. Dec. 99); Comstock v. Smith, 13 Pick. 120 (23 Am. Dec. 670); Logan v. Eaton, 66 N. H. 575 (31 Atl. Rep. 13); McFadden v. Allen (N. Y.) 32 N. E. Rep. 21 (19 L. R. A. 446). This rule does not, of course, operate to preclude the admission of parol evidence to identify the property granted, nor does it, in a proper Gasej estop the grantor from claiming that property not necessarily included in the grant was not intended to bq conveyed. In other words, parol evidence is sometimes admissible to apply the description found in the grant to the land intended to be conveyed, and, in cases of uncertainty or ambiguity in the terms of the grant, to make certain that which can be made certain, and in a proper case to determine what are removable fixtures as between grantor and grantee. Neither of the first two rules or exceptions apply to this case. There is no ambiguity or uncertainty in the description contained in the deed from the Union Pacific Company, and the defendant does not claim that parol evidence was offered for the purpose of applying the description to the land in controversy. 'Its claim as we understand it, is: First, that parol evidence is admissible for the purpose of arriving at the intent of the parties, and, second, that it is admissible for the purpose of showing that the property in controversy was a fixture or improvement, which did not pass by the deed in question. No attempt was made in this case, or by any other action, to reform the deed hence that feature is out of the case. There being-no uncertainty or ambiguity in the deed, parol evidence was not admissible for the purpose of showing the intent of the parties. To admit it under such circumstances would be contrary to well settled rules of law.

Was it permissible, then, to show that the roadbed was a fixture, and did not pass by the deed, in the absence of an express exception or reservation written into the deed itself? We think not. As to the embankment itself, it was not a fixture, no more so than a dyke or levee or a well put on the land. It was part of the land itself, and undoubtedly passed by the deed. As to the riprapping, we think the same rule applies. It might be, in a proper case, that the ties and rails would not pass, but here we think they did, and for this reason: If the Union Pacific Company had owned the land or right of way on which the embankment was erected, and had made the deed it did,-we apprehend there would be no question about the entire property — embankment, ties, and rails — passing to its grantee. Van Keuren v. Railroad Co., 38 N. J. Law, 165. The claim that the embankment, ties, and rails did not pass is bottomed on the thought that it had no title to the .land or right of way covered by the deed. May it or its grantees or assignees show that it had no title to the land in the face of its solemn deed thereto? Surely not, for to permit them to do so would be to violate the rule of estoppel by deed to which we have already referred. In other words, to take the embankment in controversy out of the terms of the grant, the Union Pacific Company or its grantees must be permitted to show that this company had no title to the lands it sold to plaintiffs’ grantors. This the rules of law will not permit. The doctrine of estoppel is a salutary one, and to establish the rule contended for by appellee would be to destroy the security of all land titles, and permit grantors, after solemnly affirming that they had title, to insist that they did not, although subsequent good-faith purchasers may have parted with their money, as in this case, on the strength of the integrity of the title. There are, as it seems to us, no two sides to this question.

But appellee argues that the original agreement of settlement was made a part of the deed, and that it should be considered in arriving at the intent of the parties. There are two answers to this. In the first place, the deed refers to this agreement for its consideration, and the granting clause makes no reference thereto; second, the improvements were not made when the settlement was had, but were constructed thereafter, and the deed was made after the embankment was erected. As to the granting clause the deed speaks from its date, and the contract under which it was made became funtcus oMcio, except as it was embodied in the deed itself or- referred to therein. ’Manifestly, the contract did not and could not refer to improvements not then in existence, and we have said, it is only referred to in the deed as furnishing the consideration therefor. To take the embankment out from under the operation of the deed it is necessary to show an exception or reservation, and this cannot be done by parol. Smith v. Price, 39 Ill. 28 (89 Am. Dec. 284.) It is true that in certain cases parol evidence is admissible for the purpose of showing the real consideration for the deed; but this rule cannot be employed for the purpose of varying its legal effect. Dunbar v. Stickler, 45 Iowa, 384; Schrimper v. Railroad Co., 115 Iowa, 35, and cases cited. On the theory, that parol evidence is admissible to show the true consideration, the grantor cannot introduce ah exception or reservation which should have been embodied in the granting clause. See cases heretofore cited. Clearly, the deed must be construed with reference to its date, and it is not competent to ingraft a parol reservation or exception thereon. In none of the cases relied upon by appellee does it-appear that the company constructing the roadbed had made a deed therefor to some other party, who was relying upon the terms of the grant; hence they are not to our minds in- point.

It is not shown, as we have said, that plaintiffs were informed, before they acquired title and expended their money, that the Union Pacific Company was claiming that the roadbed and right of way should have been reserved from the grant. Indeed, Mr. Webster, who procured the deed from the Union Pacific Company, and who attempted to secure the corrected one, says that the company said nothing at any time indicating that it was its intention to reserve the roadbed at the time it executed the first deed. All that is shown in this respect is that the company said that, if a new deed, was executed, it ought to reserve a right of way. This was not communicated to the plaintiffs, however; and, while they found the Union Pacific Company in possession of the embankment at the time they purchased, they did not pay out their money until the deed was obtained from that company. This adds strength to the doctrine of estoppel, although the company made no representations except those to be inferred from its deed.

There is no doubt of the general rule, relied upon by appellee, that one may erect improvements on the land of another which do not become a part of the real estate; and, were it not for the deed made by the Union Pacific Company, we would be inclined to agree with them in their conclusion that this embankment belonged to the Union Pacific Company, or its grantees, and that plaintiffs are not entitled to compensation therefor; but in the face of this solemn instrument it does not lie in the mouth' of that company or its grantees to say that it had no title to the lands, and, therefore, that the improvements thereon did not pass by the deed. When a railroad company enters upon the land of another, builds a roadbed, places ties and rails thereon, they as a general rule, in the absence of abandonment to the owner, belong to the company constructing the same, or to its grantees or assignees, and the landowner cannot, in condemnation proceedings, have the Aralue thereof included in his award. This is familiar doctrine requiring no support from the authorities. But when that company makes a deed to the land on which the improvement is erected, which deed contains no reservation, it will not be permitted to show, for the purpose of eliminating the improvements, including the roadbed, that it had no title to the land it attempted to convey. Reduced to its last aualysis, the question at issue is a very narrow one, which is clearly settled by the doctrine of estoppel. If the.deed from the Union Pacific Company to Street and the Nebraska Ferry Company did not convey this embankment and trackage, it did not convey anything; and, if defendant is to prevail in this litigation, it must be on the theory that this deed is nothing more than waste paper. This it should not, for the most salutary reasons, be permitted to do. Doubtless, as between the Union Pacific Company and Street and the Nebraska Ferry Company, the embankment, and especially the ties and rails, was, before the execution of the deed, personal property, and might be said to be a trade fixture, under the doctrine announced in Railroad Co. v. Nyce, 61 Kan. 394, (59 Pac. Rep. 1040, 48 L. R. A. 241) and Justice v. Railroad Co., 87 Pa. 28. But when the company undertook to grant the land on which these improvements are situated, and made no exception or reservation thereof, and did not undertake to remove the same within a reasonable time after it made the sale, its grantee or assignee cannot be heard to say that its deed was of no effect, and that it is entitled to the roadbed and improvements. Appellee has cited no case which runs counter to these rules and we do not think any can be found. On the other hand, our conclusions find support in the following among other cases: Hunt v. Iron Co., 97 Mass. 279; Meriam v. Brown, 128 Mass. 391.

Suggestion is made by counsel that the Union Pacific Company and its grantees have always claimed to own the embankment in question. This is not verified by the record. On the contrary, it is shown that plaintiffs havcalways since their purchase claimed to own the same, and have endeavored to get Webster 'to concede their claims. The reservations contained in the deeds from the ferry company and from Street are of no importance. They neither recognize nor affirm that a right of way exists over the lands in controversy; and defendants are not claiming that they have a right of way. The sole question with them is, shall they be compelled to pay for the embankment, etc., in addition to the land actually taken? We hold that they should pay for it, and, of course, disagree with theTearned trial judge in his conclusions.

II. The second point barely needs mention. Having found that plaintiffs were the owner.s of the roadbed, and that defendant went into possession in March, 1894, the time fixed for the award of damages as found by the trial court, is manifestly correct. Daniels v. Railroad Co., 41, Iowa, 52. Had wé found with appellee, on the first point, that the roadbed passed from the Union Pacific Company, through the East Omaha Land Company or the Nebraska Oonstrhction Company, to the defendant, the second question would then have become important. It is sufficient to say in this connection that, if we had so found, it is clear that compensation should have been made as of the date of the original entry by the Union Pacific Company, in December, 18S9, and the result in dollars and cents would be practically the same as under our present holding. If defendant has title to the roadbed in controversy, it is because it acquired the same as personal property immediately from the Union Pacific Company, and its entry must relate back to the time that company took possession of the lands and began its improvements thereon. Daniels v. Railroad Co., 35 Iowa, 129; Drury v. Railroad Co., 127 Mass. 571; Railway Co. v. Ortiz, 75 Tex. 602, (12 S. W. Rep. 1129); Harbach v. Railway Co., 80 Iowa, 593. We place our decision, however, on the first point, and find that plaintiffs should have been awarded the value of the roadbed, to wit, $4,903.45, in addition to the value of the land; and plaintiffs may have judgment in this court, if they so elect, for the value of the land actually taken, to wit, $5,310, and the value of the roadbed, — in all, $10,213.45, — with six percent, interest thereon.from March 23, 1894, down to the time of the entry of the decree, and the further sum of $1,000 attorney’s fees, as allowed by the district court, and the costs of suit both in the district court and upon this appeal. — Modieied and Aeeirmbd.  