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Iowa, 52; Denver & R. G. W. R. Co. v. Stancliff, 4 Utah, 117, 7 Pac. 530; Wagner v. Cleveland & T. R. Co. 22 Ohio St. 563, 10 Am. Rep. 770; North Hudson County R. Co. v. Booraem, 28 N. J. Eq. 450; Newgass v. St. Louis, A. & T. R. Co. 54 Ark. 140, 15 S. W. 188; Justice v. Nesquehoning Valley R. Co. 87 Pa. 28; Meigs's Appeal, 62 Pa. 28, 1 Am. Rep. 372; Bethlehem South Gas & Water Co. v. Yoder, 112 Pa. 136, 4 Atl. 42; Jacksonville, T. & K. W. R. Co. v. Adams, 28 Fla. 631, 14 L. R. A. 533, 10 So. 465; Jones v. New Orleans & S. R. Co. & Immigration Asso. 70 Ala. 227; Western N. C. R. Co. v. Deal, 90 N. C. 110; Preston v. Sabine & E. T. R. Co. 70 Tex. 375, 7 S. W. 825; Texas & P. R. Co. v. Hays, 3 Tex. App. Civ. Cas. (Willson) p. 79; Hays v. Texas & P. R. Co. 62 Tex. 397; Aspinwall v. Chicago & N. W. R. Co. 41 Wis. 474; Kennedy v. Milwaukee & St. P. R. Co. 22 Wis. 581; Northern C. R. Co. v. Canton Co. 30 Md. 347; Oregon R. & Nav. Co. v. Mosier, 14 Or. 519, 58 Am. Rep. 321, 13 Pac. 300; Charleston & W. C. R. Co. v. Hughes, 105 Ga. 1, 30 S. E. 972; Wiggins Ferry Co. v. Ohio & M. R. Co. 142 U. S. 396, 35 L. ed. 1055, 12 Sup. Ct. Rep. 188; Ritchie v. Kansas, N. & D. R. Co. 55 Kan. 36, 39 Pac. 718; Winslow v. Bromich, 54 Kan. 300, 38 Pac. 275; Meriam v. Brown, 128 Mass. 391; Booraem v. Wood, 27 N. J. Eq. 371.

The railroad of the plaintiff in error, including that portion on the real estate purchased by Nyce, was burdened by a public duty, and was devoted to public use. If Nyce became the owner of the material composing any part of it by his purchase at the sheriff's sale he could do as he pleased with it. He could tear it up, or sell it in pieces or as a whole, without reference to the rights of the public.

Ellithorp v. Dewing, 1 D. Chip. (Vt.) 141; Coker v. Whitlock, 54 Ala. 180.

When the condemnation was commenced, Nyce was the owner of 320 acres of land in a solid body, and is entitled to the application of the law of damages that is found in an unbroken line of cases determined by our supreme court from St. Joseph & D. C. R. Co. v. Orr, 8 Kan. 419, down to the present time.

He owns property valued at so much money with the inside strip and without the railroad. How much less is it worth without the strip and with the railroad? in answering this the manner of acquiring such property is utterly immaterial.

And

Nyce is entitled to have an award of damages to the land lying on either side of the strip condemned.

Kansas City, E. & S. R. Co. v. Merrill, 25 Kan. 423; Atchison & N. R. Co. v. Gough, 29 Kan. 94; Atchison, T. & S. F. R. Co. v. Blackshire, 10 Kan. 477.

When the railroad company attempted to condemn the strip of land it came as an absolute stranger in just the same position it would be in had it never before been in possession of the land. It became a trespasser on the land after the sale by remaining. Murphy v. Welch, 128 Mass. 489.

The compensation for such right of way appropriated to the use of the company includes, not only the value of the property taken, but also the loss the landowner sustains in the value of his property by being deprived of a portion of it.

Reisner v. Atchison Union Depot & R. Co. 27 Kan. 382.

The grade, rails, ties, telegraph poles, and fences attached to the land by the railway company while it was the owner of the land, subject to the mortgage to the bank, became de-a part of the real estate, and, as such, passed to the purchaser at sheriff's sale, and he is entitled to their value as a part of his damages in a subsequent proceeding for condemnation of the land.

No person has the right to tear up or stroy the railroad or any part of it. Georgia v. Atlantic & G. R. Co. 3 Woods, 434, Fed. Cas. No. 5,351; State v. Dodge City, M. & T. R. Co. 53 Kan. 377, 36 Pac. 747; Gue v. Tide Water Canal Co. 24 How. 257, 16 L. ed. 635; National Foundry & Pipe Works v. Oconto Water Co. 52 Fed. Rep. 43; Morgan v. Lake Shore & M. S. R. Co. 130 Ind. 101, 28 N. E. 548; Central R. Co. v. Hetfield, 29 N. J. L. 206; Blakely v. Chicago, K. & N. R. Co. 46 Neb. 272, 64 N. W. 972; Saunders v. Memphis & R. S. R. Co. 101 Tenn. 206, 47 S. W. 155.

1 Jones, Mortg. § 428.

Any improvement placed upon real estate by the owner thereof with the intention that it should be a permanent structure becomes a part of the realty, in the absence of any agreement between the parties interested therein.

Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 6 L. R. A. 249, 23 N. E. 327; Messrs. James Lawrence and W. W. Turner v. Wentworth, 119 Mass. 459; Allen Schwinn for defendants in error.

Mr. D. H. Martin, by permission of the court, also for defendants in error:

If the owner of land mortgages it, he cannot subsequently, by grant, create an easement in the land to the prejudice of the rights of the mortgagee.

Murphy v. Welch, 128 Mass. 489; Hartley v. Harrison, 24 N. Y. 170; Frost v. Shaw, 10 Iowa, 491; Kruse v. Scripps, 11 Ill. 98; Anderson v. Strauss, 98 Ill. 485.

The mortgagee is not affected by any act of the mortgagor in passing any rights of his to third persons.

v. Mooney, 130 Mass. 155; Southbridge Sav.
Bank v. Exeter Mach. Works, 127 Mass. 542;
Smith Paper Co. v. Servin, 130 Mass. 511;
Hubbell v. East Cambridge Five Cents Sav.
Bank, 132 Mass. 447, 43 Am. Rep. 446; Me-
Rea v. Central Nat. Bank, 66 N. Y. 489;
Hill v. Farmers' & M. Nat. Bank, 97 U. S.
450, 24 L. ed. 1051; Ottumwa Woolen Mill
Co. v. Hawley, 44 Iowa, 57, 24 Am. Rep. 719;
Dooley v. Crist, 25 Ill. 551.

If erected for permanent use, fixtures become a part of the realty.

Wood v. Whelen, 93 Ill. 153; Wight v. Gray, 73 Me. 297; Bond v. Coke, 71 N. C. 97;

Hubbard v. Bagshaw, 4 Sim. 326; Potter v. | Cromwell, 40 N. Y. 296, 100 Am. Dec. 485; McRea v. Central Nat. Bank, 66 N. Y. 489; Roberts v. Dauphin Deposite Bank, 19 Pa. 71; Van Keuren v. New Jersey Cent. R. Co. 38 N. J. L. 165.

All annexations made by the owner are presumed to be permanent.

Arnold v. Crowder, 81 Ill. 56, 25 Am. Rep. 260; Winslow v. Merchants' Ins. Co. 4 Met. 306, 38 Am. Dec. 368; Hunt v. Hunt, 14 Pick. 386, 25 Am. Dec. 400.

The fact that annexations to the freehold are called chattels in a deed to the mortgagor does not affect the mortgagee's right to them as fixtures.

Quinby v. Manhattan Cloth & Paper Co. 24 N. J. Eq. 260; Rogers v. Brokaw, 25 N. J. Eq. 496; Lyle v. Palmer, 42 Mich. 314, 3 N. W. 921.

In the absence of any agreement to the contrary, fixtures become subject to mortgage.

Ford v. Cobb, 20 N. Y. 344; Sisson v. Hibbard, 75 N. Y. 542; Tyson v. Post, 108 N. Y. 217, 15 N. E. 316; Strickland v. Parker, 54 Me. 263; Peirce v. Goddard, 22 Pick. 559, 33 Am. Dec. 764; Butler v. Page, 7 Met. 40, 39 Am. Dec. 757; Richardson v. Copeland, 6 Gray, 536, 66 Am. Dec. 424; Crippen v. Morrison, 13 Mich. 23; Burnside v. Twitchell, 43 N. H. 390; Crane v. Brigham, 11 N. J. Eq. 30; Hobson v. Gorringe, 66 L. J. Ch. N. S. 114; Seedhouse v. Boward, 34 Fla. 509, 16 So. 425.

A railroad track annexed to land by the owner of the freehold with the intention that it shall be a permanent structure is a part of the realty.

1 Jones, Mortg. § 436; Price v. Weehawken Ferry Co. 31 N. J. Eq. 31; Hunt v. Bay State Iron Co. 97 Mass. 279; Meriam v. Brown, 128 Mass. 391.

The doctrine of trade fixtures has no application where the owner of land makes annexations intending them to be permanent. Climie v. Wood, L. R. 3 Exch. 257; Winslow v. Merchants' Ins. Co. 4 Met. 313, 38 Am. Dec. 368.

A railroad track laid down upon land with a view to its permanent improvement or beneficial enjoyment is deemed a fixture and part of the realty.

Van Keuren v. Central R. Co. 38 N. J. L. 165; Tudor Iron Works v. Hitt, 49 Mo. App. 472; Hunt v. Missouri P. R. Co. 76 Mo. 115: Goodman v. Hannibal & St. J. R. Co. 45 Mo. 33, 100 Am. Dec. 336; Booraem v. Wood, 27 N. J. Eq. 371.

Smith, J., delivered the opinion of the

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right of way of the railroad company by reason of the construction and operation of the road, the right of way and the land adjacent to it having been sold in separate tracts under the decree of foreclosure, and bid in by them at sheriff's sale long after the construction of the road. As the defendant in error Nyce and the Stock Exchange Bank appealed from the award made by the commissioners in condemnation, we will treat them, in the discussion of this case, as the owners of the property, although it appears from the record that Nyce alone purchased the property at the sheriff's sale. If the roadbed, ties, track, etc., placed upon the property by the railroad company are to be treated, under the circumstances of this case, as part of the real estate, then the position taken by the defendants in error on the first proposition (which was concurred in by the trial court) is the correct one; otherwise not. It becomes necessary, therefore, to consider, in the outset, the nature of the improvements placed upon the land by the railroad company, and their character, as affected by the relations sustained towards the public by such companies. From early times it has been held that buildings adapted and used for the purposes of trade are recognized as an exception from the general rule which obtains as to buildings constructed for other purposes, in that the former do not become a part of the real estate, when affixed thereto, from the fact of their erection alone. This doctrine was announced by Lord Ellenborough in 1802, and later by the Supreme Court of the United States in Van Ness v. Pacard, 2 Pet. 137, 7 L. ed. 374. In the latter case the improvement was a large house, built and used as a family residence, and it was sought to have the question depend upon whether the building was removable or not; but the court held that the size of the building, whether it had a brick foundation or not, or was one or two stories high, or had a brick chimney, was immaterial; the sole consideration being whether or not it was designed for the purposes of trade. If so, it was a fixture, which might be severed and removed by the person erecting the same. This distinction was applied in the case of Wagner v. Cleveland & T. R. Co. 22 Ohio St. 563. 10 Am. Rep. 770. Stone piers were built by a railroad company on premises over which it was authorized to construct its road, and the question determined whether they were so annexed to the land as to become the property of the owner of the land. The court held that the use of the

was

strip of land on which the piers were built was granted to the railroad company for the purpose of constructing a part of a continuous line of railroad which it was authorized to build and operate. The piers were held to be as much a part of the road as the bridge they supported, or the rails or ties. The road was alone adapted for the transportation of persons or property. All its parts were merely accessory for its business, and were put on the land for this purpose, and not as accessories to the land over which

the right to secure an easement on the land upon which it has laid its track for railroad purposes, the nature of its entry and the manner in which it annexes chattels to the soil distinguish it from the case of an ordinary trespasser making improvements to the freehold. In the case of Cohen v. St. Louis, Ft. S. & W. R. Co. 34 Kan. 158-164, 54 Am. Rep. 242, 8 Pac. 142, a railroad company had taken possession of a strip of land, and constructed its track thereon, without any formal condemnation proceedings, and without procuring any title thereto, or easement therein, from the owner of the land. In an

the road was to pass. That part of the road built on the premises of the party plaintiff in error in the suit, disconnected from other parts of the road, could not be operated and would be useless as a railroad, nor could it serve any useful purpose as an appurtenance to the land on which it was built. It is said in the opinion: "The general principle to be kept in view, which underlies all questions of this kind, is the distinction between the business which is carried on in or upon the premises and the premises, or locus in quo. The former is personal in its nature, and articles that are merely accessory to the business, and have been put on the prem-action brought by the latter against the railises for this purpose, and not as accessions to the real estate, retain the personal character of the principal, to which they appropriately belong and are subservient. But articles which have been annexed to the premises as accessory to it, whatever business may be carried on upon it, and not peculiarly for the benefit of a present business, which may be of a temporary duration, become subservient to the realty, and acquire and retain its legal character. The railroad company acquired an easement in the land to construct and use its road thereon. It did not bind itself to the landowner either to build or maintain the road, and it could change the character of the structure at pleasure. Nor do we perceive any good reason why, in the act of building, it should lose its right of property in the structure when built, or in the materials of which it was composed. The landowner retained his land subject to the easements, and the company owned the easement and the structure it was designed to support." Again, in Northern C. R. Co. v. Canton Co. 30 Md. 347, it was held that a railway came within the rule regarding trade-fixtures; that it was not an accessory to the enjoyment of the freehold, or in any manner necessary and convenient for the occupation of the land by the party entitled to the inheritance. The court said: "A railway is certainly quite as essential to the trade and business of a railway company as a steam engine and the house which may cover it, or any other fixture, can be to the miller or the miner. Prima facie, a house, with its foundation planted in the soil, is real property; yet when it is accessory to trade, and in law a trade fixture, we find all the authorities regard it as personal property. The same doctrine is applicable to the railway in question." See also Western N. C. R. Co. v. Deal, 90 N. C. 110; Albion River R. Co. v. Hesser, 84 Cal. 435, 24 Pac. 288; Oregon R. & Nav. Co. v. Mosier, 14 Or. 519, 58 Am. Rep. 321, 13 Pac. 300; Jones v. New Orleans & S. R. Co. & Immigation Asso. 70 Ala. 227; Justice v. Nesquehoning Valley R. Co. 87 Pa. 28; Newgass v. St. Louis, A. & T. R. Co. 54 Ark. 140, 15 S. W. 188.

The above cases are to the effect that, although a railway company may enter upon land without right, and construct its track thereon, it being possessed with the continuing power of eminent domain, and having

road company to recover damages for the
permanent taking and appropriation of such
strip, no recovery was allowed for materials
and work furnished by the railroad company
itself and used in the construction of its
track. In passing upon this question the
court said: "This question, we think, must
be answered in the negative. Of course, it
must be admitted that where a mere wrong-
doer-a naked trespasser-enters upon the
land of another, and makes improvements
thereon of a permanent character, such im-
provements become the property of the land-
owner; and this will apply to railroad com-
panies as well as to others. If a railroad
company should enter upon the land of an-
other without any color of claim of right or
privilege, as a mere wrongdoer,--a naked
trespasser,--and construct a railroad track
on such land, such railroad track would, of
course, become the property of the land-
owner.
But neither the foregoing
principles nor the above authorities apply
to the present case. The railroad company
in the present case was not a wrongdoer nor
a trespasser in any sense. It was a duly-or-
ganized railroad company under the laws of
Kansas, and had a right to build its railroad
across the plaintiff's land, provided, of
course, that it first procured the right of way
from the owner of the land; and it had the
right to procure such right of way by con-
demnation proceedings, as the representative
of the sovereign authority, the state of Kan-
sas; for the operation of a railroad is every-
where considered and held to be a public pur-
pose, and the statutes of Kansas authorize
such condemnation proceedings. And the
railroad company took possession of the land
for its right of way, and appropriated the
same to its own use, with the consent of the
only person who had possession of the land,
and the only person who seemed at the time
to be the owner thereof. This person was B.
F. Files. He had the unquestioned posses-
sion of the land, and claimed title thereto,
and clamed the land as his own. He had
tax deeds on all the land through which the
defendant's railroad was constructed.
Nor has the plaintiff treated the railroad
company as a trespasser. He has allowed
the company to retain its right of way as a
permanent easement, and simply sues it for
compensation and damages.
such circumstances, the railroad company
will not be required to pay for the improve-

Under

ments which it itself made upon the land, ing its own railroad. We believe, but will be required to pay only the value of in this action, because the improvements did the strip of land which it appropriated, and not and were not intended to benefit the the damages to the other land; and this realty, that the pump, boiler, and building value and these damages will be computed should be held to be personal property, and as of the time when the railroad company not fixtures." In the case at bar the railfirst took possession of said strip, and oc- road company did not proceed to the laying cupied the same as its right of way. This, down of its track and the erection of imwe think, is founded in reason, and sustained provements mentioned, until after it had obby the weight of authority. [Citing au- tained a deed from Blackstone, the owner of thorities.] .. It has even been held the fee in the land. The mortgage held by that, where a railroad company enters upon the bank conveyed no estate, but was merely land as a technical trespasser, and after- a lien. The mortgagee was in no sense the wards procures the land for its right of way owner of the property, and in condemnation by condemnation proceedings, it is not com- proceedings no personal notice was required pelled to pay for the improvements which to be served upon him, nor need he be named it itself made upon the land while it was in the award. If condemnation had been had technically a trespasser, and before it legally before the foreclosure, his rights as mortprocured its right of way. Justice v. Nes-gagee would have received no consideration, quehoning R. Co. 87 Pa. 28; Daniels v. Chi-and the value of the ties, track, etc., would cago, I. & N. R. Co. 41 Iowa, 52; Lyon v. have been wholly excluded from the amount Green Bay & M. R. Co. 42 Wis. 538; Greve of the award. Chicago, K. & W. R. Co. v. v. First Div. of St. Paul & P. R. Co. 26 Minn. Sheldon, 53 Kan. 169, 35 Pac. 1105. 66, 1 N. W. 816. This seems like justice; It is provided in § 7 of chapter 68 of the but, whether it is or not, surely where a rail- General Statutes of 1897, relating to the exroad company enters upon a piece of land ercise of the right of eminent domain by railfor the purpose of constructing a railroad road companies, that proceedings in condemtrack, and does so under the honest belief nation may be commenced by a railway corthat it has a right to do so, and expends poration after the road has been constructed; thousands of dollars thereon under such be- and such course was adopted in this case. lief, and no person objects to its occupancy, Had the condemnation been had before the or questions its right, while it is expending sale of the property under the decree and its money making improvements on the land, foreclosure, the value of the improvements and where the paramount owner of the land upon the land would certainly not have enafterwards treats the railroad company, not tered into the estimate of the damages inas a trespasser upon his land, but as a party curred by the owner, and the mortgagee by which has in fact procured a permanent right no possibility could have laid claim to them, of way over the land, and upon said theory or any part thereof. The improvements made sues the railroad company merely for the did not become a part of the security under damages resulting from the permanent tak- the mortgage, because they did not go to the ing of the right of way, including the value betterment of the mortgagor's estate. of the land taken, and the permanent dam-case of Ritchie v. Kansas, N. & D. R. Co. 55 ages to his other property, he cannot say Kan. 38-59, 39 Pac. 725, the railroad comthat the railroad company was at any time pany took possession of a piece of land cona mere trespasser; and he can recover only veyed to it on express conditions which it for the value of the land taken, and the dam- did not perform. By reason of the breach it ages to that not taken at the time when the was held that the land should revert to the railroad company first entered upon his land, owner. Mr. Justice Allen, in speaking for and occupied the same for the purpose of the court, said: "If the defendants desire procuring a right of way." In Atchison, T. to maintain a railroad across the lands, and & S. F. R. Co. v. Morgan, 42 Kan. 23, 4 L. R. to continue the use thereof for railroad purA. 284, 21 Pac. 809, the railroad company poses, they should be permitted to retain the dug a well, and put in a pump and boiler land, and also the improvements they have for the purpose of filling a water tank on the constructed thereon, on payment of the line of its road, believing that the well and value of the land computed as of the date of its attachments were upon its own prop- the commencement of this action, with inerty. When it was discovered that the same terest since that time, without any charge were upon the land of another, it was held on account of improvements made by the dethat the pump and boiler could be removed fendant thereon. Cohen v. St. Louis, Ft. S. without paying the owner of the land there- & W. R. Co. 34 Kan. 158, 54 Am. Rep. 242, for. The court said: "It can readily be 8 Pac. 138." Upon another ground also seen that one of the tests of whether a chat- property rights in the improvements made tel retains its character or becomes a fix- by the railway company upon its right of ture is the uses to which it is put. way, to the extent claimed by the purchaser at the sheriff's sale, must be denied to the latter. The case in the court below proceeded upon the theory that Nyce, by virtue of his sheriff's deed, took such title as the mortgagor (Blackstone) had at the time the mortgage was executed, and this title carried with it the betterments added to the land,

If the company had placed it there, even under a mistake, for the purpose of ultimately improving the real estate, the law might, under this state of facts, have held it to be the property of the owner of the real estate; but under the agreed statement it was placed there solely for the purpose of better operat

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In the

248

FEB.,

not in conformity with law. In holding that the irregular proceedings did not operate as a dedication to the landowner of the property of the company placed on the land so as to enable the owner to receive the value of the improvements, the court, through Chief Justice Agnew, said: "This is not the thority to enter, but of one representing the case of a mere trespass by one having no austate herself, clothed with the power of emiment domain, having a right to enter and to place these materials on the land taken for a public use,-materials essential to the very purpose which the state has declared in the grant of the charter. It is true, the entry was a trespass, by reason of the omission to do an act required for the security of the citizen, to wit, to make compensation or give security for it. For this injury the dress cannot extend beyond his injury. It citizen is entitled to redress. But his recannot extend to taking the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. materials laid down for the benefit of the Then why should the public be treated as dedicated to him?"

sel to distinguish the case of Briggs v. ChiThere has been an attempt made by councago, K. & W. R. Co. 56 Kan. 526, 43 Pac. 1131, from the case at bar. We are not impressed by their efforts in that direction. The facts in the two cases are remarkably similar.

put there by the railroad company. If he took title to the extent claimed, then the exclusive estate in and dominion over the land and its improvements were vested in him absolutely, with the resulting power, necessarily accompanying such title and dominion, to exclude all persons from the land so purchased, and to use and enjoy the same unmolested by the railroad company in any way. As the owner of such an estate, he appeared as plaintiff in the court below, and was treated by that tribunal accordingly. If the contention of defendants in error be sustained, then his power over what he claimed was his own carried with it the right to fence his land, excluding all persons therefrom, as well as the servants of the railroad company, to stop the running of trains over his property by removing the track and ties, or by any other means. bered that a railroad is a public highway. It must be rememThe land over which it runs it holds under a franchise for a particular use conferred upon it by the state for public purposes. A railroad company is endowed with the sovereign power of eminent domain by reason of the benefits which the public at large derive from the operation of the road. by Mr. Justice Allen in State ex rel. Maylor It was said v. Dodge City, M. & T. R. Co. 53 Kan. 377, 378, 36 Pac. 747: "From this [public] use neither the corporation itself, nor any person, company, or corporation deriving its title by purchase either at voluntary or judicial sale, can divert it without the assent of the state." In the case of Georgia v. At- founded upon the following statement: The decision in the Briggs Case is lantic & G. R. Co. 3 Woods, 434, Fed. Cas. 1886, Ault and wife were the owners of a lot No. 5,351, the question was In whether an execution creditor of a railroad In 1887 they conveyed to the railway comconsidered upon which they had executed a mortgage. company might levy upon and sell its depots, pany a right of way over the property. In freight houses, etc., in satisfaction of the 1889 a foreclosure suit was commenced by debt. In denying such right, Mr. Justice the mortgagee, in which the railroad comBradley said: "It is the means of communi- pany was made a party. It answered, setcation between one part of the country and ting up a right to occupy a strip of land 300 another. The interest which the public has feet in width by virtue of a deed from the in it is greater and more important than the Aults. Judgment was rendered against the interest which the company has in it. It Aults for the amount of the mortgage debt cannot be supposed that the legislature, in and interest, and the whole tract decreed to authorizing its construction, and granting be sold to pay the same. peculiar franchises for its operation and use, continued as between the mortgagee, plainever intended that execution creditors might tiff in the suit, and the railroad company. The cause was then levy upon parcels of it, and cut it up into sec- Thereupon it was decreed that the railroad tions, and destroy it as thoroughfare. Such a supposition seems to joined, and cut off from claiming any intera great public company be forever barred, foreclosed, enus preposterous. Suppose a mile of the est or estate in or to the real estate, or any road should be levied on and sold, would the part thereof. An order of sale was issued, purchaser have a right to fence it in, and under which the land outside of the right-oftake up the rails and cross-ties, and plant way strip was first sold for the sum of $50 it, and thereby destroy the railroad? Could to James F. Briggs as administrator, and this be done without contemning the power the strip was then bid off by him for $100. of the state by which it was created and A few days after the execution of the sheriff's made a public highway? We think not. deed to Briggs, the railroad company made To sell it in parcels would be to application to the district judge for the apsever an artery of commerce. fect the whole state in a vital part. Its pub- right of way over and across the premises. It would af pointment of commissioners to condemn a lic means of intercommunication are essen- They were appointed, and proceeded in the tial to the prosperity of the people. They usual way, allowing $124 for the land occuare the most efficient appliances of modern pied and $30 damages to the remainder of civilization." In Justice v. Nesquehoning, the tract. No mention was made of any imValley R. Co. 87 Pa. 28, a railroad company provements. Briggs, as administrator and was a trespasser, and its entry upon land owner of the land, appealed from the award. 48 L. R. A.

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