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vate owners upon or over whose lands the location is made; and, next, with reference to third parties and other corporations. The successive steps contemplated by the act of 1849 and subsequent legislation, as necessary to vest a title to the roadway in the corporation, are these: First. A preliminary entry on the lands of private owners for the purpose of exploration. This is made by engineers and surveyors, who run and mark one or more experimental lines, and who report their work, with such maps and profiles as may be necessary to present it properly to the company that employs them. Second. A selection and adoption of a line, or one of the lines, so run, as and for the location of the proposed railroads. This is done by the corporation, and it requires the action in some form of the board of directors. This makes what was before experimental and open a fixed and definite location. It fastens a servitude upon the property affected thereby, and so takes from the owner and appropriates to the use of the corporation. Third. Payment to the owner for what is taken and the consequences of the taking, or security that it shall be made, when the amount due him is legally ascertained. The title of the owner is not divested until the last of these steps has been taken. Levering v. Philadelphia G. & N. R. Co., 8 W. & S. (Pa.) 459; McClinton v. Pittsburg, Ft. W. & C. R. Co., 66 Pa. St. 404; Dim. When title of mick v. Brodhead, 75 Pa. St. 464; Buffalo, N. Y. & divested. P. R. Co. v. Harvey, 107 Pa. St. 319, 26 Am. & Eng. R. Cas. 642; Gilmore v. Pittsburg, V. & C. R. Co., 104 Pa. St. 275. As against him the corporation can acquire only a conditional title by its act of location, which ripens into an absolute one upon making compensation. As to third persons and rival corporations, however, the action of the company adopting a definite location is enough to give title. For this reason, in several of the United States, provision is made by the law for recording the action of the company, and the line adopted by it, so as to give notice to the public, and to settle questions of priority of title. We have no such statute, and the action of the company must be proved by other competent evidence. Heise v. Pennsylvania R. o., 62 Pa. St. 72. But when proved it has the same effect upon all interested as though it had been recorded. It settles the date of actual appropriation, and shows the exact location of the line of the road proposed. An examination of our own cases will show that the conclusions we have reached are fairly deducible from them. In New York & E. R. Co. v. Young, 33 Pa. St. 175, it was held that the location of the line of its road is intrusted by the law to the company alone; and, after it has exercised 'the discretionary power

47 A. & E. R. Cas.--15

Efect of valid location.

confided to it, its action is final as to third persons, and cannot be reviewed. The same doctrine was again asserted in Cleveland & P. R. Co. v. Speer, 56 Pa. St. 325, and it has been adopted in many subsequent cases. The effect of a location, when made, so far as the line and the ground covered by it are concerned, was considered in Pittsburg, V. & C. R. Co. v. Com., 101 Pa. St. 192, 10 Am. & Eng. R. Cas. 321 ; and it was held the act of the company in adopting a definite and permanent location for its road was an appropriation of the ground covered by it, whether such ground was within the inclosure of a private owner, or in the public highway. In other words, this is the method by which the corporation exercises the power of eminent domain with which the state invested it at its creation, and takes what before belonged to others for its corporate use. It may acquire land by purchase, if its charter authorizes it to do so, before a location of its road; but, if it does so, it holds the land as any other purchaser would, subject to the right of any one having the right to do so to enter and appropriate it by virtue of the right of eminent domain. That a corporation cannot exercise the power to appropriate land until it has located its line is well settled. Thus, if a company has an option between two or more lines or routes, it must make its election by an actual adoption of one of them before it can acquire title by an appropriation upon either. i Redf. R. R. 240. The reason for this is that the act of location is at the same time the act of appropriation. The space covered by the line as located is thereby seized and appropriated to the purposes of the construction and operation of the railroad by virtue of the power of eminent domain, and nothing remains to be done except to compensate the owner. After the act of location by the company, the owner or the company may proceed at once to secure an ascertainment of damages. Until such act neither can do so, for no right to damages vests in or accrues to the owner until there has been an appropriation of his property by the corporation. Davis v. Titusville & 0. C. R. Co., 114 Pa. St. 308, 30 Am. & Eng. R. Cas. 341. There should be no

unnecessary delay in completing the preliminary

exploration, and making a location, if priority is to priority.

be secured. In New Brighton & N C. R. Co.'s

Appeal, 105 Pa. St. 13, private parties, in contemplation of securing a charter, caused a preliminary survey to be made over a route for a railroad projected by them. They afterward secured a charter, and the corporation adopted the line of the preliminary survey as the location of its road. In the meantime another corporation had made a preliminary survey over the same ground, and made a final location of its road.

When location secures

Facts of the

case.

It was held that the latter company had the better title, and that the adoption by the former company of the line run before its incorporation could not carry its title back to the date of the preliminary survey. The application of the rule now laid down, as to what constitutes a valid location, to the case before us, disposes of this appeal. The plaintiff company has the right, under its charter and subsequent legislation, to build its road from its present terminus at Hall's to Williamsport, and connect with the Philadelphia & Erie Railroad. In 1886, and again a year or more be. fore the bill was filed in this case, the engineer of the plaintiff ran over a route from Hall's to Williamsport, connecting with the road of the Philadelphia & Erie Com. pany near the lot described in the bill as the “ Metzgar Lot," and set stakes along it. It does not appear in the bill or in the evidence that this preliminary survey, was ever reported to the plaintiff company, or that any action was ever taken by the company to fix the location of its road between Hall's and the intersection with the Philadelphia & Erie in Williamsport. In the meantime the latter company, in locating a branch of its road, had run and adopted a line crossing one corner of the Metzgar lot, over which the plaintiff claimed to have made a location by the act of its engineer, and was proceeding to have an assessment of the damages made in the man. ner provided by law when this bill was filed, and an injunction obtained in the court below restraining the defendant from proceeding further in its effort to perfect its title to the location made for its branch over the Metzgar lot. The an. swer denied the plaintiff's title in these words: “The defend. ant denies that the said plaintiff ever made a valid and legal location of the line of its railroad upon the lot of the said John Metzgar.” The plaintiff was thus Issue as to localled upon to show the fact of the location of its by answer. road upon the land, or upon some part of the land which the defendant claimed the right to occupy under its location of its branch. It did not show, or make any effort to show, the location of the line of its road. When this want of title in the plaintiff was urged upon the attention of the learned judge of the court below, he seemed to recognize its importance as á general proposition, but to think that it was rendered of no consequence in this case by the state of the pleadings. He said: “It is urged by the defendant that there is no evidence that the directors of the plaintiff ever authorized the location of this road. It might be sufficient answer to this allegation to say that there was no such issue raised by the pleadings." But we have seen that it was distinctly raised." The learned master found that the plaintiff's road

had been located by an engineer. He did not find that the com

pany had ever taken any action whatever, either Engineer's

before or after the engineer ran over the route. survey not a valid location. He could not, from the evidence. An engineer

may make explorations in advance of a location, or he may remark the line or adjust the grades after the adoption of a location, but an engineer alone cannot locate a railroad so as to give title to the company that employs him. He is not the company. The right of eminent domain does not reside in him. "Until the plaintiff was able to show that it had acquired title to the Metzgar lot, or soine portion of it, by the location of its road upon it, it had no standing ground in a court of equity from which to ask an injunction in this case, and it should not have been granted. It sought to restrain the defendant from making an entry on the Metzgar lot, because that lot had been already appropriated by itself to its own corporate uses. The fact on which its right to be heard rested was clearly and flatly denied by the defendant. No effort was made to show it, and without it the plaintiff was without a foundation on which his prayer for an injunction could rest. The decree of the court below is reversed, the injunction is dissolved, and the bill dismissed, at the costs of the plaintiff, the appellee.

Location of Railroad -Rights of Rival Railroad Companies Over Located line.-See Moran v. Ross, (Cal.), 39 Am. & Eng. R. Cas. I ; Barre v. Montpelier & W. R. R. Co., (Vt.), 39 Id. 17, note 25; Sioux City, etc. R. Co. v. Chicago, etc. R. Co. (C. C.), 25 1d. 150; Davis v. Titusville, etc. R. Co. (Pa.), 30 Id. 341 ; Rochester, etc. R. Co. v. New York, etc. R. Co., (N. Y.), 25 Id. 267; Western, etc. R. Co. v. Georgia, etc. R. Co., (N. Car.), 17 Id. 28.

PAYNE et al.

V.

KANSAS & ARKANSAS VALLEY R. Co. (U. S. Circuit Court, W. D. Arkansas, June 22, 1891, 46 Fed. Rep.

546.) Injunction --Federal Practice. The court, in determining the question of granting a temporary restraining order or a perpetual injunction, is governed solely by the laws of congress, the rules of the supreme court regulating equity practice, and the general rules of procedure in equity cases applicable to the equity practice in the courts of the United Statee.

Jurisdiction of Circuit Court-Federal Question. The court has jurisdiction of this case because it involves a federal question. The rights of the parties arise under a law of the United States, and involve the construction thereof.

Temporary Injunction-Notice to Adverse Party.-After the passage of the act of congress of 1793, and prior to the act of June 1, 1872, a temporary injunction or restraining order could not be granted without notice to the adverse party. But by the seventh section of the act of congress of June 1, 1872, which is now $ 718 of the Revised Statutes of the United States, if a bill is filed for an injunction, and a subpæna issued notifying a defendant to appear on a rule day, and if in the meantime there is danger that irreparable injury may be committed, the court, in the exercise of a sound discretion, will issue a temporary restraining order without notice.

Equitable Jurisdiction of U. S. Courts-Adequate Remedy at Law.–By $ 723 of the Revised Statutes of the United States, suits in equity will not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law. This section of the statute is merely declaratory, and made no change in the pre-existing law. It serves merely to emphasize the rule already existing

Same-Injunction to Prevent Continued Trespass.--If the remedy at law is not as plain, adequate, and complete as one obtainable in equity in case of a continued trespass, the party may prevent the injury by injunction, rather than wait until it is done, and then look for his damages in a court of law. To bar equitable relief the legal remedy must be equally effectual with the equitable remedy as to all the rights of a complainant. Where the remedy at law is not as practicable and as efficient to the ends of justice, and its prompt administration, the aid of equity may be invoked.

Injunction to Restrain Irreparable Damage.—The courts will interfere by injunction to prevent wrongs of a repeated and continued character, but which occasion damages which are estimable only by conjecture, and not by an accurate standard ; that this is what is meant by irreparable damages or mischief, when we use the expression in connection with an application for an injunction. If the damage is irreparable, it presents a state of case where the party, in the sense of $ 723 of the Revised Statutes of the United States, does not have a plain, adequate, and complete remedy at law; for, if he has such remedy, the damage is not irreparable.

Injunction to prevent taking Private Property without Compensation.-An attempt by a railroad company to build its road upon private property without payment of compensation may be prevented by injunction.

Same-Easement-Unauthorized Use.—The lands taken by defendant in this case were taken in invitum, and defendant only acquired an easement to the land, and only such a one as the act of congress authorized. If the use of the lands of plaintiffs for an approach for a wagon road and foot bridge is a use not authorized by congress, and it injuriously affects the lands of plaintiffs, then it is a new and unauthorized use, which, because it injuriously affects their lands, becomes a supervening servitude, which amounts to a taking of their property, and for which taking they are entitled to compensation.

Eminent Domain-When Property can be taken. Private property, under the constitution of the United States, can be taken for public use only with just compensation.

Purpose of Taking-Extension of Use-Additional Servitude.--A use beyond . the purpose of a first condemnation of land by right of eminent domain connot be included in the first use if not authorized by law to be so included, and such use creates a new servitude if it casts on the land already condemned an additional burden. If such second use affects the value of said land to an extent to which it was not affected by the original taking, then it subjects the land to a new servitude, and there is a taking of private property which has not been paid for.

Market Value as Full Compensation. When private property is taken for

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