taken and to deal therewith within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee. And the plaintiff has no right either to construct or maintain an overhead bridge across the railroad at any elevation without the prior consent of the railroad company."9

Where a railroad company makes an actual survey on the ground for a right of way, and this is followed by selection and proper adoption by the directors of the company such action makes a fixed and definite location and fastens a servitude upon the property affected thereby. The railroad company acquires a conditional title which ripens into an absolute one when compensation is made or a bond filed. If after the location of the right of way, but before compensation is made, or bond filed, the owner attempts to sell the land, he cannot give a good marketable title.10

9 Speese v. Schuylkill River East Side R. R. Co., 23 Pa. C. C. R. 17 (1898); 8 Dist. 584 (1899); see s. c. 201 Pa. 568 (1902.)

10 Johnston v. Callery, 173 Pa. 129 (1896); 27 Pitts. 123 (1896); Johnston v. Callery, 184 Pa. 146 (1898); 29 Pitts. 123 (1898.)

22. Where a bond has once been filed and the landowner's rights have thereby become divested, the court has no power to order the discontinuance of the condemnation proceedings at the instance of the railroad company.1

Questions as to the validity of the road and the right of the company to take the land cannot be raised upon exceptions to the bond.2

Bonds-Approval of.

23. Upon a petition by a railroad company to approve a bond, questions as to the legal or constitutional power of the company to take the land will not be determined. The form of the bond and adequacy of the security only will be considered, unless perhaps the absence of authority should clearly appear in the recitals.3

Bonds-Foreign Surety Company.

24. A foreign surety company will not be accepted as surety for a railroad company on a land-damage bond.*

I Fischer v. Catawissa R. R., 175 Pa. 554 (1896.)

2 West Side Belt R. R. Co's Bond, 33 Pitts. 213 (1902.)

3 Bangor & Portland R. R. Co.'s Petition, 8 Dist. 65 (1898); 12 York

113 (1898); 6 North. 317 (1898.)

4 Altoona & Beech Creek Terminal R. R. Co.'s Bond, 24 Pa. C. C. R. 561 (1901.)

Bonds-Question of Title.

25. A bond given by a railroad company in condemnation proceedings will not pass title to the easement of a right of way, where the entry of the railroad company is in clear violation of the covenants in an agreement with the landowner, and the latter has a standing in equity to enjoin the proceedings until the covenants are performed, or the contract is rescinded.5

Bonds-Action on.

26. Where the sureties on a bond given by the railroad company to secure land damages, intervene in the condemnation proceedings they cannot allege as a defense in an action on the bond, that the dissolution of the railroad company prior to the condemnation proceedings abated the action, and discharged the sureties."

An action upon a right of way bond cannot be maintained where it appears from the statement of claim that a judgment. had been entered against the railroad company and in favor of the plaintiff, for the taking of the right of way, although the statement avers that such judgment was improperly and fraudulently procured under an alleged agreement of the parties without trial or submission of evidence.7

Bonds-Appeal.

27. An order fixing the amount of a bond in railroad condemnation proceedings is interlocutory in character and no appeal lies from it.8

Appointment of Viewers.

28. Where the only objections to the appointment of viewers in condemnation proceedings are based on matters of fact affecting title, which are not admitted, the Supreme Court on

5 Semple v. Cleveland & Pittsburgh R. R., 172 Pa. 369 (1896); 26 Pitts. 240 (1896.)

6 Keller v. Harrisburg & Potomac R. R., 161 Pa. 504 (1894.)

7 Harris v. Schuylkill River East Side R. R., 159 Pa. 468 (1894.)

8 Pittsburg, Carnegie & Western R. R. v. Gamble, 204 Pa. 198 (1902.)

certiorari, will not reverse the order of the lower court overruling the objections.9

The Act of June 8, 1893, authorizing the appointment of viewers to assess damages without previous attempt to settle with the owner, where title is in dispute, allows the corporation to proceed in such case but does not contemplate the settlement of the controversy on exceptions to such proceedings. Jurisdiction is conferred under the Act if there is a real controversy. Where the record does not show that the route passes through the curtilage of a dwelling, which is prohibited by the Act of February 19, 1849, and it is denied, the remedy is by injunction and not by exceptions to the petition.10

Duties of Viewers.

29. The quantity of land which a railroad company is allowed to appropriate is not determined by the viewers; it is not their duty to fix the lines of the appropriation; the railroad company under its right of eminent domain surveys and appropriates the land within the limits fixed by the statute and points out the boundaries. The viewers assess the damages for the land taken according to the boundaries thus fixed by the company.11

View of Premises.

30. The report of viewers appointed under the Act of February 19, 1849, must be based upon personal observation, and their report will be set aside, when the view was made at a time when the ground was covered with snow, and they determined the character, quality and value of the land from the evidence of witnesses called before them.12

Notice to Land Owners.

31. If a landowner has notice of the time and place of meeting of viewers, he is bound by the report of viewers after the

9 Bredin v. Pittsburgh & Western Railway, 165 Pa. 262 (1895.) 10 Lehigh & New England R. R. Co.'s Petition, 7 North. 77 (1899.) II Zahn v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., 184 Pa. 66 (1898); 28 Pitts. 248 (1898.)

12 Jeffries v. Tuscarora R. R., 9 Dist. 17 (1899.)

lapse of many years of silence. A railroad company occupied land for many years without objection from the landowner. In an action to set aside the appointment of viewers and proceedings thereunder, the landowner denied that a person duly served with notice as his agent was such in fact, but did not aver that he did not acquire actual knowledge of the proceedings and occupancy thereunder which was open and notorious in its nature; it was held that the proceedings would not be set aside.13

Appeals.

32. Where an appeal has been taken from the report of viewers by having the prothonotary note the fact of appeal upon the docket the appeal will be allowed. It is not necessary in order to perfect an appeal to file a separate paper.14

On an application for an appeal from an award of arbitrators in forma pauperis under the Act of June 16, 1836, the court will permit the appeal without the payment of costs.15

Lien Creditors.

33. Although damages which are assessed for the appropriation of land by a railroad company under the right of eminent domain are payable to the owner of land, even if he be insolvent, still lien creditors upon application to the equity powers of the court may have the fund apportioned to their liens.16

Statute of Limitations.

34. The Act of April 17, 1866, limiting the time within which action may be brought against railroad companies for damages for right of way or the use and occupancy of land is avoided by Sec. 21, Art. 3 of the Constitution of 1874. In an

13 Peach Bottom Ry. Co. v. McAlister, 7 Super. Ct. 574 (1898); affirming 11 York 75 (1897.)

14 Brown v. Southwest Pennsylvania Ry., 32 Pitts. 92 (1901); 10 Dist. 693 (1901); 25 Pa. C. C. R. 343 (1901.)

15 Sinnot v. Delaware County & Philadelphia Pass. Ry., 7 Del. 599 (1900); 9 Dist. 705 (1900.)

16 Mack v. Eastern & Northern R. R., 7 North. 318 (1900); 10 Dist. 102 (1900.)