consistent with the purpose for which it is taken by the railway.3 The company has no right, as against him, to give away grass cut by his servants upon the land. Such rights of private use, however, as interfere with the operation of the railway, are included under the condemnation and in the compensation awarded. Thus, unless expressly reserved to him, the owner retains no right of private crossing. Where the report of commissioners condemning land for railroad use included the value of buildings erected thereon, the buildings passed with the land, and the owner having appealed, and then dismissed the appeal, and accepted the amount of award, is estopped from claiming possession of the buildings, and from removing them.

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1 Greenville etc. R. R. Co. v. Parttow, 14 Rich. S. C.) 237; Connecticut etc. R. R. Co. v. Hatton, 32 Vt. 43; Morrison v. Bucksport etc. R. R. Co. 67 Me. 353; Bangor etc. R. R. Co. v. Smith, 47 Me. 34; Troy etc. R. R. Co. v. Potter, 42 Vt. 265; 1 Am. Rep. 325.

2 Jackson v. Rutland etc. R. R. Co. 25 Vt. 151; 60 Am. Dec. 246; Connecticut etc. R. R. Co. v. Holton, 32 Vt. 43; Troy etc. R. R. Co. v. Potter, 42 Vt. 265; 1 Am. Rep. 325.

3 Bailey v. Sweeney, 64 N. H. 296; Lyon v. Gormley, 53 Pa. St. 261; Leavenworth etc. R. R. Co. v. Paul, 23 Kan. 816, 10 Am. & Eng. R. R. Cas. 490, where it was held that the owner retained a right to the grass upon the lands condemned: Preston v. Dubuque etc. R. R. Co. 11 Iowa, 15; Blake v. Rich, 34 N. H. 282; Hasson v. Qil Creek R. R. Co. 8 Phila. 556.

4 Bailey v. Sweeney, 64 N. H. 296.

5 Cedar Rapids etc. R. R. Co. v. Raymond, 37 Minn. 204.

6 Chicago etc. R. R. Co. v. Knuffke, 36 Kan. 367.

790. The location of its route is in the discretion of the company.-A railway company is liable in an action for damages for an unauthorized location of its road; and a statute ratifying an illegal location of the road as actually laid out and constructed, does not exempt the company from liability for injuries caused by the manner in which it was constructed or is maintained at the

time of the enactment.1 But when the termini of a railway are fixed by the charter, neither a court of equity nor of law will attempt to control the exercise of its discretion in the location of it's route between the designated points. And the question whether the company could not at a resonable expense and without undue detriment to the road have located it so as to avoid the injury to the plaintiff's property, cannot be properly submitted to the jury.3

1 Salem v. Eastern R. R. Co. 98 Mas3. 431; 96 Am. Rep. 650; Commonwealth v. Old Colony etc. R. R. Co. 11 Gray, 93.

2 Wood's Railway Law, 743, 714; Hentz v. Long Island R. R. Co. 13 Barb 616; People v. New York Central R. R. Co. 74 N. Y. 302; Walker v. Mad River etc. R. R. Co. 8 Ohio, 33; Fall River Iron Works v. Old Colony R. R. Co. 5 Allen, 221; Parke's Appeal, 61 Pa. St. 137; Southern Minn. R. R. Co. v Stoddard, 6 Minn. 150; Cleveland etc. R. R. Co. v. Speer, 56 Pa. St. 325; 94 Am. Dec. 84; Struthers v. Dunkirk R. R. Co. 87 Pa. St. 282.

3 New York etc. R. R. Co. v. Young, 33 Pa. St. 175; Southern Minnesota R. R. Co. v. Stoddard, 6 Minn. 150; Cleveland etc. R. R. Co. v. Stockhouse, 10 Ohio St. 567.

§ 791. Change of location.-When a company has once located its route, and taken the steps necessary to acquire the right of way, it cannot, without the consent of the legislature, change its location, unless the power to do so is expressly conferred by its charter, or by the general statute under which it was incorporated.'

1 Works v. Junction R. R. Co. 5 McLean, 425: Hudson etc. Canal Co. v. New York etc. R. R. Co. 9 Paige Ch. 323; Buffalo etc. R. R. Co. v. Pottle, 23 Barb. 21; People v. New York etc. R. R. Co. 45 Barb. 73; Mason v. Brooklyn etc. R. R. Co. 35 Barb. 37; Mississippi etc. R. R. Co. v. Devaney, 4 Miss. 555: 2 Am. Rep. 608; South Carolina R. R. Co. v. Blake, 9 Rich, 228; Knight v. Carrolton R. R. Co. 9 La. An. 284; Ex parte South Carolina R. R. Co. 2 La. An. 434; Boston etc. R. R. Co. v. Midland R. R. Co. 1 Gray, 340; San Francisco etc. R. R. Co. v. Mahoney, 23 Cal. 112; Hazen v. Boston etc. R. R. Co. 2 Gray, 574; Old Colony R. R. Co. v. Miller, 125 Mass. 1; 28 Am. Rep. 194; Charlestown etc. R. R. Co. v. Commissioners, 7 Met. 78; Ham v. Salem, 100 Mass. 380; Davidson v. Boston etc. R. R. Co. 7 Allen, 326; Boynton v. Peterborough etc. R. R. Co. 4 Cush. 467; Lance's Appeal, 55 Pa. St. 16; 93 Am. Dec. 722; Brigham v. Agricultural etc. R. R. Co. 1 Allen, 316; Mississippi etc. R. R. Co. v. Devaney, 42 Miss. 555; 2 Am. Rep. 608; State v. Norwalk etc. Co. 10 Conn. 157; Moorhead v. Little Miami R. R. Co. 17 Ohio St. 310; Hastings v. Amherst etc. R. R. Co. 9 Cush. 596;

BEACH ON RAILWAYS-84

Little Miami R. R. Co. v. Naylor, 2 Ohio St. 235; Doughty v. Somerville etc. R. R. Co. 21 N. J. 442; 3 Halst. Ch. 629; 51 Am. Dec. 267; Morris etc. R. R. Co. v. Central R. R. Co. 31 N. J. 205.

§ 792. Abandonment and non-user of right of way.-A company may be divested of its right of way by suffering another company to construct its road upon it.' But mere non-user will not deprive it of its title." Nor does a land-owner lose his right to compensation for a right of way conveyed by him to the company, on account of its failure to construct its road within the time agreed upon in the deed.3 The right of the owner to compensation for property taken by a railway company, is not affected by his having obtained a judgment against another company previously con demning it; and, in such a case, the former judg ment is conclusive as to the quantum of damages But, if the judgment against the first company has been paid, the land-owner is not entitled to receive compensation from another company condemning the route of the former, unless, of course, the original compensation has been refunded."

1 Chesapeake etc. Canal Co. v. Baltimore etc. R. R. Co. 4 Gill & J. 1; Coe v. New Jersey Midland R. R. Co. 34 N. J. Eq. 105.

2 Hestonville etc. R. R. Co. v. Philadelphia, 89 Pa. St. 210; Barlow v. Chicago etc. R. R. Co. 29 Iowa, 276; Noll v. Dubuque etc. R. R. Co. 32 Iowa, 66.

3 Thornton v. Sheffield etc. R. R. Co. 74 Ala. 109.

4 Bridgeman v. St. Johnsbury etc. R. R. Co. 58 Vt. 198.

5 Dubuque etc. R'y Co. v. Diehl, 64 Iowa, 635.

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CHAPTER XXX.

OF THE VARIOUS INTERESTS AND TITLES SUBJECT TO

CONDEMNATION.

§ 793. Of the various interests or titles which constitute ownership.

§ 794. The same subject, continued-Sundry illustra ions.

§ 795. The owner's right to compensation not to be impaired by other par ties having an estate in the land.

§ 796. Condemnation of property of persons under disability.

§ 797. Of the power to take the property of another corporation. § 793. Modification of the foregoing proposition.

§ 799.

§ 800.

Of the power to take the franchises of another corporation.
Of the condemnation of exclusive privileges.

§ 801.

§ 802.

Of compensation for the taking of corporate property.
Of the power to take streets and highways.

§ 807.

§ 806. Distinction between common and special injuries.

Actions for damages to be brought against the company and not

the city.

§ 808.

Of the taking of streets for tramways.

§ 809.

Of the taking of streets for elevated railways.

§ 810.

Of compensation to abutting proprietors, the fee of the street being in the public.

§ 811. Of compensation to abutting proprietors, the fee of the street not being in the public.

§ 812. Of damages for wrongful taking of streets.

$793. Of the various interests or titles which constitute ownership. In the land or property taken under the power of eminent domain, there may be various interests, in different individuals. But the value of the land, as a whole, is all that

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can be awarded them; and no contracts between the owners has any effect to increase the award.1 The constitutional prohibition against the taking of private "property" without compensation, embraces not only the land itself, but also every right which accompanies ownership and is incident thereto. The word "owner" includes all persons who have an interest in the property condemned,3 homesteaders upon public lands, vendors of lands not yet conveyed, holders of bonds for deeds, landlords and tenants, the holders of equitable interests, cestuis que trust, executors of active trusts,10 mortgagors and mortgagees," mortgagees of leaseholds 12 the owners of easements upon the lands of others,13 owners of private ways1 and of rights in public common," 15 married women with separate estates,' ,16 the owners of reversionary interests, tenants for life,13 remaindermen,1 residuary legatees,20 heirs," and widows in whom the right of dower has vested upon the death of the husband.22 Among the owners of these several interests, damages are to be apportioned, even though no claim may have been made.23 But, in the absence of statutory provision to the contrary, a condemnation of lands and a payment of compensation to the owner, terminates so far as the railway is concerned all inchoate rights therein; such as rights of dower and curtesy, the husband or wife being yet alive,24 and judgment liens, or liens by attachment upon mesne process. 25

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1 Mills on Eminent Domain, § 65; Ross v. Elizabethtown R. R. Co. 20 N. J. 230; Burt v. Wigglesworth, 117 Mass. 302; Burt v. Merchants' Ins. Co. 115 Mass. 1.

2 Mills on Eminent Domain, § 31; Gulf R'y Co. v. Fuller, 63 Texas, 467; Eaton v. Boston etc. R. R. Co. 51 N. H. 501; 12 Am. Rep. 147; Branson v. Philadelphia, 47 Pa. St. 329; McLaughlin v. Charlotte R. R. Co. 5 Rich. 583.