§ 61. 1. THE English statute1 enables railway companies to purchase, by contract with the owners, "all estates or interests (in any lands) of what kind soever," if the same, or the right of way over them, be requisite for their purposes.

2. And by another section of the same statute such companies are empowered to purchase such lands of persons legally incapacitated to convey the title, under other circumstances, as guardians of infants, committees of lunatics, trustees of charitable or other uses, tenants in tail, or for life, married women, seized in their own right, or entitled to dower, executors or administrators, and all parties, entitled, for the time being, to the receipt of the rents and profits.2

18 & 9 Vict. ch. 18, § 6.

2 Hutton v. The London & South W. Railw., 7 Hare, 264. Some suggestions are here made by Vice-Chancellor Wigram in regard to the time within which it is requisite to make compensation in the several modes of taking lands. The principal question decided is, that in regard to lands, injuriously affected by railway works upon other lands, it is not requisite to make compensation in ad

*3. The valuation in this latter class of cases is to be made by disinterested persons, and the price paid into the bank for the benefit of the parties interested.

4. And where a railway act provided, in terms, that nothing therein should authorize the company to do any damage or prejudice to the lands, estate, or property of any corporation or person whatsoever, without the consent in writing of the owner and occupier, it was held they could not pass the line of another railway without their consent, although the withholding of such consent should frustrate the purpose of the grant.3

5. In this country most of the railway charters contain a power to the company to acquire lands, by agreement with the owner. In such case it has been held the rights of the company are the same as where they take their land under their compulsory powers.* And they are bound to the same care in constructing their road.*

6. And where the railway have the power to take five rods, through the whole course of their line, and a land-owner deeds them the full right to locate, construct, and repair, and for ever maintain and use their road over his land, if, in laying the drains or ditches through the land, it becomes necessary to go beyond the limits of the five rods, in order to guard against the effect of a stream to be passed, the company may lawfully do so under the grant.5

vance.

But where lands are purchased from persons under disability, the course of devolution of the property is not thereby changed, but the money paid in compensation is to take the place of the land, and to be treated as real estate. Midland Counties Railw. v. Oswin, 1 Coll. C. C. 74; s. c. 3 Railw. C. 497; Ex parte Flamank, 1 Simons (N. s.) 260; In re Horner's Estate, 5 De G. & S. 483; s. c. 13 Eng. L. & Eq. 531; In re Stewart's Estate, 1 Sm. & G. 32; s. c. 13 Eng. L. & Eq. 533.

3 Clarence Railw. v. Great North of England Railw., 4 Queen's Bench, 45; Gray v. The Liverpool & Bury Railw., 9 Beav. 391; s. c. 4 Railw. C. 235.

4 Whitcomb v. Vermont Central Railw., 25 Vt. 49, 69. This right to acquire lands, by contract with the owners, is, by implication, if not expressly, limited to the necessities of the company, we presume, the same as taking lands in invitum, and cannot be extended to any private use. But if the owner of the land consent to the use, the constitutional objection is removed, and the right to hold the land is a question between the company and the public, probably. Dunn v. City of Charleston, Harper, 189; Harding v. Goodlet, 3 Yerg. 41; 11 Wend. 149; Embury v. Conner, 3 Comstock, 516.

5 Babcock v. The Western Railw., 9 Met. 553. But a contract with the owner of land, for leave to build the road through his land, and staking out the track through the land, is no such occupation as will be notice of the right of

*7. In case of a deed to a railway company of land, on which to construct their road, the assent of the company will be presumed, and they are bound by the conditions of the grant, as that the road shall be so constructed as not to interfere with buildings on the land.6

8. An oral permission to take and use land for a railway is a bar to the recovery of damages for such use, until the permission is revoked. In a very late case before the House of Lords, a very important, and as it seems to us reasonable and just qualification is annexed to the familiar doctrine of implied assent to the appropriation of land to a permanent use by the owner standing by and not objecting. It is here ruled, "If a stranger builds upon the land of A., supposing it to be his own, and A. remains wilfully passive, equity will not allow him to profit by the mistake; but if the stranger knows that the land upon which he is building belongs to A., then A. may assert his legal rights and take the the company against a subsequent mortgagee. Merritt v. Northern Railw., 12 Barb. 605. But the payment by the company of the price of the land, and changing their route in faith of the title, might give them an equity superior to that of a subsequent mortgagee. Ib. The deed of one tenant in common is a good release of his claim for damages, although it convey no right as against his co-tenant. Draper v. Williams, 2 Mich. 536. But an agreement to sell land to a railway company, and a tender of the price by the company, creates no title in them. Whitman v. Boston & Maine Railw., 3 Allen, 133.

6 Rathbone v. Tioga Navigation Co., 2 Watts & Serg. 74. And the rights and duties of the company, in such case, are precisely the same as if the land had been condemned, by proceedings in invitum, under the statute. Norris v. Vt. Central Railw., 28 Vt. 99. Such grant carries the incidents necessary to its enjoyment. And if it becomes necessary, in constructing the road, to make a deep cut, that may be done, and the company are not bound to protect the banks of the excavation by a wall. Hortsman v. Lexington & Cov. Railw., 18 B. Mon. 218. See also Louisville & Nash. R. v. Thompson, 18 B. Mon. 735.

7 Miller v. Auburn & Syracuse Railway, 6 Hill, 61. And such license, when executed, by the construction of the work, is not allowed to be revoked. The only relief the party is entitled to is compensation for his land. Water Power v. Chambers, 1 Stock: Ch. 471. And it was held in a somewhat recent English case, Corby v. Hill, 4 C. B. N. S. 556; s. c. 31 Law Times, 181, that where the owner of land had given oral permission to one for private way, he could not obstruct, or give permission to others to obstruct, such way; and that where a third person, by permission of the land-owner, placed building materials in the way, whereby an injury accrued to the person having the way, he might sue for such injury.

8 Ramsden v. Dyson, Law Rep., 1 Ho. Lds. 123; s. c. 12 Jur. N. S. 506.

benefit of the expenditure. And a tenant building upon his landlord's land, in the absence of such special circumstances, acquires no right against him at the expiration of the tenancy. But a mere license to build works connected with a railway, the damages to be settled with a person named, or "on equitable terms hereafter," does not amount to any definite agreement.9

9. Where land is conveyed, for the use of a railway, upon condition that it shall revert to the owner upon the abandonment of the road, and the road was sold, under a mortgage, to the state, and by the state and by new companies chartered for that purpose completed, it was held, that the grantor was not entitled to hold the land.10

10. Where land was conveyed to a railway company, for the purpose of constructing their road, on which was a tenement, and to this water was conveyed by an aqueduct from another portion of the land of the defendant, and the price of the land was fixed by the commissioners, the defendant at the time claiming the right to withdraw the water, and this not being objected to by the president and engineer of the company, who were present at the

9 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58. But a writing whereby the owner of land along the line of a contemplated gravel road gave the road company the right to enter upon his land anywhere within a mile of the contemplated road and dig and remove gravel, as much as they might require, was held not a mere license, but a grant irrecoverable. Bracken v. Rushville Gravel Road Co., 27 Ind. 346.

10 Harrison v. Lexington & Ohio Railw., 9 B. Mon. 470. So, too, if land is conveyed on condition that an embankment (water-tight) over a brook crossing the land shall be erected by the grantors, and that the embankment, or dam, with the floodgates or sluices therein, might be used for hydraulic purposes by the grantors, their heirs, and assigns, the grantees not to be liable to the grantors for any damage they might sustain by a break in such dam, unless the same should happen through the gross neglect or wilful misfeasance of the grantees, but that the grantees should repair the dam forthwith, it was held to be a condition subsequent, the failure to perform which would give the grantors, or their heirs, a right of re-entry at their election. But it was further said, that the conveyance of the estate by the grantees defeated the condition, and that the assignee had no remedy upon it. Underhill v. Saratoga & Wash. Railw., 20 Barb. 455. And such conditions may be waived by the party in whose favor they are made, as in a grant of land for a railway track, the road to be completed by a day named, or the deed to be void, which was not done; but the grantor continued to treat the company as having the right to use the land for the purposes of the grant, and it was held a waiver of the condition. Ludlow v. New York & Harlem Railw., 12 Barb. 440.

time, it was held, that the deed containing * no exception in regard to the water, the company acquired the right to its use, in the manner it had been before used, and the defendant was liable to an action for diverting it," and the intention of the parties could not be determined by extraneous evidence.

11. So, also, the principle that a grantor, knowing the purpose for which his deed is accepted, cannot derogate from his own grant, applies to the case of a compulsory conveyance, under legislative authority, and the act is sufficient notice to the grantor of the purposes of the conveyance. But this rule will not apply to any accidental state of facts, existing at the time of the grant, as the support resulting from an excavation being filled with water at the time, so as to entitle the grantee to insist upon its continuance.

12. And accordingly, where a railway took the land above a mine for the support of the abutments of a bridge, the mine having been abandoned for forty years and full of water, it was held they could not insist upon having the water remain in the pit, as a support to the earth, but that they were entitled to be protected from damage likely to result from working the mine.12

13. If a railway have power to take land by consent of the owner, an oral consent is sufficient.13 And if the company take land and put it to their use without the consent of the owner, or any other proceeding under their powers, it is a trespass, but can only be sued by the person then owning the land, and not by his grantee.13 But this case was reversed upon error, and it was decided, somewhat at variance with the present English rule, that such a license, coupled with an interest, was still revocable at the option of the licensor. But the final conclusion of the court of error, that "consent," in such an act, meant the effectual consent of the law expressed with due formality, seems altogether the more reasonable ground upon which to place the case.

14. The New York Court of Appeals 14 held that municipal corporations, as to their rights and powers over lands owned by the corporation, were to be viewed the same as any other owner

11 Vermont Central Railw. v. Hills, 23 Vt. 681.

12 North Eastern Railw. Co. v. Elliott, 1 Johns. & H. 145; s. c. 6 Jur. N. S. 817.

13 Central Railw. Co. v. Hitfield, 5 Dutcher, 206; s. c. in error, id. 571. 14 Mayor, &c., of the City of New York v. The Second Avenue Railw., 32 N. Y. 261; s. c. 34 Barb. 41, where the case was similarly ruled.