of the owner, and hold the same for the purpose of aiding "in the construction, maintenance, and accommodation of its railway.' "1 And in such case, the rights and liabilities of the company are the same as where the lands are acquired by virtue of the right of eminent domain.2 A verbal consent of the owner of the lands taken is sufficient, and will excuse any acts properly done under the license while it was in force; 4 and such consent is a bar to the recovery of damages for the use of the land, until the permission is revoked.5 And where a railway company constructs its road upon land, under the license, and by permission of the owner, the rails and other materials forming a part of the road are to be deemed trade fixtures, and liable to the same rules of law that govern personal property. A contract to convey lands for railway purposes, on condition that the company shall construct its road to a certain place, and locate its depot within a certain town, is not against public policy, or void. But it is otherwise, if the land so conveyed is to be used for purposes of speculation, and not for the general business of locating, constructing, managing, and using the road.8 It is, however, presumed that lands deeded to a railroad company are required for the construction of its road.? A railroad company may compel the specific performance of a contract to convey a right of way, after complying with the conditions thereof.10 Aud delay on the part of the company to commence work, or to complete its road within the time fixed by its charter, will not excuse one who has agreed to convey land to the company from fulfilling his contract. 11 But if a contract is so vague and uncertain that no compensation could be awarded, specific performance will not be decreed; 12 so if considerable time has elapsed, and the company is not in possession of funds to complete the purchase, the court will not interfere; 13 nor will specific performance be decreed when it may interfere with the safety or convenience of the public.14 If the owner of land agrees to relinquish to a

railroad company the right of way through his land, with a provision in the contract that the depot shall be located at a certain designated point on the land, he cannot, after relinquishment and entry by the company, maintain trespass or ejectment against it, for failing so to locate the depot. 15 The remedy of the landowner in such case is an action for damages for breach of contract, or a suit in equity for specific performance. 16 Land granted by Congress to a state, although for the purpose of aiding the construction of a particular road, becomes subject to the control and disposition of the state legislature. But lands granted by the United States to the Union Pacific Railroad Company are not liable to be taxed by the state. 18 All public grauts to railroads will, as a rule, be strictly construed.19 Mere occupancy of land by a railroad company, for its corporate purposes, cannot establish a dedication of such land by the owner to such purposes; 20 knowledge and acquiescence on his part for the full period fixed by statute for the limitation of real actions must be shown.21 And where a statute provides that railroad companies may acquire sites for depots, etc., by donation, by purchase, or by appropriation, but contains no provision for acquisitions by dedication, a railway company cannot acquire land for a depot-site by dedication.22 If a railway company, without acquiring title, and without the consent of the owner, take possession of land and lay its track thereon, the fixtures thus placed on the land become the property of the owner of the soil; 23 and he is entitled, on subsequent proceedings by the company to acquire title, to the increased value of the land by reason of the laying of the track.24

1 See Whitcomb v. Vt. Cent. R. R. 25 Vt. 49; Virginia etc. R. R. Co. v. Elliott, 5 Nev. 358; McClure v. Mo. etc. R. R. Co. 9 Kan. 373.

2 Babcock v. Western R. R. Co. 9 Met. 553; Hortsman v. Lexington etc. R. R. Co. 18 B. Mou. 218.

3 Central R. R. Co. v. Hetfield, 5 Dutch. 206; id. 571.

4 Blaisdell v. Portsmouth etc. R. R. 51 N. H. 483.

5 Miller v. Auburn etc. R. R. Co. 6 Hill, 61. And compare Murdock . Prospect Park etc. R. R. 73 N. Y. 579.

6 North Cent. R. R. Co. v. Canton Co. 30 Md. 347.

7 McClure v. Mo. etc. R. R. Co. 9 Kan. 373.

8 Pacif. R. R. Co. v. Seely, 45 Mo. 212. Compare Waldo v. Chicago etc. R. R. Co. 14 Wis. 575.

9 Yates v. Van De Bogert, 56 N. Y. 526.

10 Chicago etc. R. R. Co. v. Swinney, 38 Iowa, 182; and see Barlow v. Chicago etc. R. R. Co. 29 id. 276.

11 Ross v. Chicago etc. R. R. Co. 77 Ill. 127; and see Conwell v. Springfield etc. R. R. Co. 81 id. 232.

12 Tillett v. Charing Cross Co. 26 Beav. 419. And compare Detroit etc. R. R. Co. v. Forbes, 30 Mich. 165.

13 Pryse v. Cambrian Railw. Law R. 2 Ch. App. 444.

14 Raphael v. Thames Valley Railw. Law R. 2 Ch. App. 37; and see Rockford etc. R. R. Co. v. Shunick, 65 Ill. 223.

15 Hubbard v. Kansas etc. R. R. Co. 63 Mo. 68; and see Hornback v. Cin. etc. R. R. Co. 20 Ohio St. 81; N. J. etc. R. R. Co. v. Van Syckle, 37 N. J. L. 4 6; St. Louis etc. R. R. Co. v. Mathers, 71 Ill. 592; Morris v. Indianapolis etc. Railw. Co. 76 id. 322; Walsh v. Barton, 24 Ohio St. 28. But compare Conger v. Burlington etc. R. R. Co. 41 Iowa, 419.

16 Hubbard r. Kansas etc. R. R. Co. 63 Mo. 68; and see Baker v. Chicago etc. R. R. Co. 57 id. 275.

17 Little Rock etc. R. R. Co. v. Howell, 31 Ark. 119. See as to grants by the United States in aid of railroad companies: Lake Superior etc. R. R. Co. v. United States, 93 U. S. 442; Central Pacif. R. R. Co. v. Yolland, 4) Cal. 438; Hunnewell v. Burlington etc. R. R. Co. 3 Dill. 313; Newhall v. Sanger, 92 U. S. 761; Sioux City etc. Railw. Co. v. Osceola County, 43 Iowa, 318; White . Burlington etc. R. R. Co. 5 Neb. 303; Kaiser r. McLoughlin, 49 Cal. 449; Farnsworth v. Minn. etc. R. R. Co. 92 U. S. 49. And see as to grants by states: People v. Ill. Cent. R. R. Co. 62 Ill. 510; People v. Ketchum, 72 id. 212; Davis v. Gray, 16 Wall. 203; Houston etc. R. R. Co. v. Kucchler, 36 Tex. 332.

18 Union Pacif. R. R. Co. v. McShane, 18 Int. Rev. Rec. 68.

19 Packer v. Sunbury etc. R. R. Co. 19 Pa. St. 211.

20 Daniels v. Chicago etc. R. R. Co. 35 Iowa, 129.

21 Daniels v. Chicago etc. R. R. Co. 35 Iowa, 129.

22 Todd y. Pittsburg etc. R. R. Co. 19 Ohio St. 514. Compare McWilliams r. Morgan, 61 Ill. 89.

23 Van Size v. Long Island R. R. Co. 3 Hun, 613; 6 Thomp. & C. 298. 24 Van Size v. Long Island R. R. Co. 3 Hun, 613; 6 Thomp. & C. 298; Graham v. Connersville etc. R. R. Co. 35 Ind. 453; 10 Am. R. 56. But see California etc. R. R. Co. v. Armstrong, 46 Cal. 85; Justice v. Nesquehoning Valley R. R. Co. 87 Pa. St. 28.

§ 247. Eminent domain.-Acts of the legislature authorizing railroad companies to appropriate lands by the exercise of the right of eminent domain are valid and constitutional acts. But the necessity of such appropriation must exist, as a condition precedent to the exercise of the right; 2 and it is incumbent upon the company to show that it has substantially complied with all the conditions which

the law has annexed to the exercise of the power. A statute authorizing the exercise of the power must be construed strictly.4 Land cannot be taken for the general uses of the company, in addition to the uses specified in the statute. A general grant of power to take land for the track of a railway does not authorize the company to take land for a temporary track during the construction of the main line. And the acquisition of lands for the purpose of speculation, or to prevent competition, or in aid of collateral enterprises, is not authorized under such a grant of power. And so of the acquisition of lands for the erection of a manufactory of railroad cars, 8 or for the purpose of erecting dwelling-houses to rent to the employees of the company. But land may be taken for turn-outs, depots, engine-houses, and turn-tables, 10 and for the erection of shops for the repair of cars and locomotives; 11 or for piling wood and lumber used on the road, and brought to it for transportation thereon.12 And the power to acquire land for necessary “appendages" is held not to be exhausted by an apparent completion of the road. where an increase of business de. mands other appendages, or more room for tracks.13 A railroad company having general powers to locate its road, and take land for it, may cross a public highway, subject to the duty of making compensation to private owners.14 So it may divert a stream of water flowing across the line of its road; 15 and may institute proceedings against the owner of a stratum of coal, to obtain from him an underground right of way. 16 And authority may be conferred upon a railway company to acquire springs near its road, where water is essential to its use, and it cannot be otherwise procured.17 But a railway company has no right to take for the use of its road lands held for certain specific purposes by a municipal corporation.18 And in New York, the power of a railway company to take property does not extend to that which is already held and dedicated by authority of law to a

different public use; 19 nor does it extend to the acquisition of lands outside of its way for the purpose of enabling it to obtain gravel therefrom for the construction of its road.20 A state legislature may authorize the construction of railroads through land owned but not occupied by the United States; 21 and a dwelling-house is no more exempt than any other species of real estate from the right of eminent domain.22 And where a statute provides that no corporation shall take any dwellinghouse without the consent of the owner, the term "dwelling-house" refers only to the house, and does not include any part of the garden, orchard, or curtilage. 23 So all private contracts are subordinate to the right of eminent domain.24 It is for the courts to determine as to the necessity and extent of the appropriation of lands by a railway company in the exercise of the right of eminent domain; 25 but they will not usually interfere with the exercise of the right, except in cases of gross abuse.26

1 Bloodgood v. Mohawk etc. R. R. Co. 18 Wend. 9; and see Bradley v. N. Y. etc. R. R. Co. 21 Conn. 24; Weir v. St. Paul etc. R. R. Co. 18 Minn. 155; Moore v. Superior etc. R. R. Co. 34 Wis. 173; Shipley v. Baltimore etc. R. R. Co. 34 Md. 336; tit. EMINENT DOMAIN. The legal existence of a corporation authorized to construct a railroad is at the foundation of the right to take property for its use, under the right of eminent domain: Matter of Brooklyn etc. Railw. Co. 72 N. Y. 245.

2 New York etc. R. R. Co. v. Metropolitan_Gas Light Co. 5 Hun, 201; Reed v. Louisville Bridge Co. 8 Bush, 69; Leisse v. St. Louis etc. R. R. Co. 2 Mo. App. 105.

3 Atlantic etc. R. R. Co. v. Sullivant, 5 Ohio St. 276; Atkinson v. Marietta etc. R. R. Co. 15 id. 21; Phillips v. Dunkirk etc. R. R. Co. 78 Pa. St. 177; Bonapart v. Camden etc. R. R. Co. 1 Bald. 218; Halstead v. Mayor etc. 3 N. Y. 430.

4 Unaugst's Appeal, 55 Pa. St. 128; N. Y. etc. R. R. Co. v. Kip, 46 N. Y. 546; Gray v. Liverpool etc. Railw. Co. 9 Beav. 391.

5 Spofford v. Bucksport etc. R. R. Co. 66 Me. 26.

6 Currier v. Marietta etc. Railw. Co. 11 Ohio St. 228; and see Memphis Freight Co. v. Mayor etc. 4 Cold. 419.

7 Rensselaer etc. R. R. Co. v. Davis, 43 N. Y. 137.

8 Eldridge v. Smith, 34 Vt. 484.

9 Eldridge v. Smith, 34 Vt. 484.

10 Bird v. Wilmington etc. R. R. Co. 8 Rich. Eq. 46; Hannibal etc. R. R. Co. v. Muder, 40 Mo. 165; N. Y. etc. R. R. Co. v. Metrop. Gas Light Co. 5 Hun, 201; 63 N. Y. 326; N. Y. etc. R. R. Co. v. Kip, 46 id. 546; 7 Am. R. 385; Phila. etc. R. R. Co. v. Williams, 54 Pa. St. 103; Giesy v. Cin. etc. R. R. Co. 4 Ohio St. 308.