Boundaries.

81. In an action against a railroad company for alleged illegal occupation of lands a map over sixty years old found in the files in the proper office at the State capital and prepared by the Commonwealth to fix the location of land appropriated by the State for the purposes of a canal is admissible in evidence as an ancient document to show the boundary of land where it appears that a railroad company purchased the canal from the State and afterwards conveyed it to a canal company who afterwards re-conveyed it to the railroad company. It is not necessary to show that the map was framed and filed at the exact time the State entered upon the land of which the map purported to be the boundary. The map was not a paper between the parties as to boundary but a signification by the Commonwealth of the quantity taken by boundary leaving only open to objection on part of the landowner the amount of compensation, which would in no way affect the boundary.

Agreements as to Stations.

B

82. Where a deed conveying land to a railroad company contains a condition that the company shall erect, at or near a place designated, a freight and passenger station with sidings for the convenient shipment of freight to and from the station, the character of the station to be maintained is to be determined by the deeds of the company and those who use it. If the company has erected a station which in structure and management does not differ from most of the stations on the road, it will be deemed to have sufficiently performed the condition."

Agreements as to Fences.

83. A covenant by a railroad company in a deed for a portion of its right of way to "fence and keep said road fenced," is a covenant running with the land and is binding on a suc

6 Smucker v. Pennsylvania R. R., 188 Pa. 40 (1898), reversing 6 Super. Ct. 521 (1898.)

7 Caldwell v. East Broad Top R. R. & Coal Co., 169 Pa. 99 (1895.)

cessor of a railroad company whose title comes through foreclosure sales.8

A landowner entered into the following agreement with a railroad company: "I will lease to the company which undertakes to construct such road the right of way of lawful width through my land in Orange township, Columbia County, Pennsylvania. The damages to be assessed when the road is located, and the amount of such damages to be paid in stock in said railroad. Cost of fencing not included in damages, provided no damage is done to the building, race or water power." It was held that the agreement was an actual release of the right of way and not merely a proposal, and that it meant that if no damage was done to the building, race or water power, no damage was to be allowed for the cost of fencing. It was also held that the stock which the landowner agreed to take should be assessed to him at par.9

Agreements as to Employment.

84. If a railroad company enters into an agreement with a landowner for a right of way, and covenants to employ the landowner and pay him a salary as station agent at a station to be built by himself on his own land, the company cannot revoke the contract in part by instituting proceedings to condemn the station lot, and at the same time retain the right of way, which was the main consideration. In such a case the company must either stand on the contract, or rescind in toto.10

Agreements as to Crossings.

85. Where a railroad company has agreed to purchase land for its right of way, and has covenanted to "construct and maintain a good and sufficient crossing over the right of way on said premises," and the railroad company has tendered a deed without any such provision, the landowner has a right to have executed a deed tendered by himself containing this

8 Kelly v. Nypano R. R., 200 Pa. 229 (1901), affirming s. c. 23 Pa. C. C. R. 177 (1899.)

9 Hoffman v. Bloomsburg & Sullivan R. R., 157 Pa. 174 (1893.)

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

clause: "Excepting and reserving unto the said parties of the first part, their heirs and assigns, forever, a good and sufficient right of way, causeway or railroad crossing over and across the said Clearfield & Mahoning Railway on the said premises of the parties of the first part, so that the occupant or occupants of the said premises of the parties of the first part may cross or pass over the said railroad on the premises with wagons, carts and implements of husbandry, as the occasion may require; said causeway or railroad crossing to be maintained by the said party of the second part; its successors and assigns."11

If an owner of land over which a railroad company has a right of way enters into an agreement in writing by which in consideration of the railroad company consenting to the erection of an overhead crossing in a specified manner, the owner relinquishes his right to a grade crossing, the owner will be bound by the agreement, and he cannot thereafter use the grade crossing and also at the same time construct and maintain an overhead crossing." 12

Breach of Agreement.

85*. Where a landowner agreed to convey a portion of his property to a railroad company for its right of way, the fact that the agreement was signed by him, in the belief that the conveyance would not prevent him from recovering damages to the remainder of his property by the construction of the railroad will not justify a court of equity refusing a decree of specific performance.13

Where the agent of a railroad company without disclosing his principal agrees orally with an owner of a homestead to purchase the property at a price named, but without any time fixed for the completion of the purchase the railroad company cannot, after the expiration of twenty months, demand a conveyance. 14

11 Hall v. Clearfield & Mahoning Ry. Co., 168 Pa. 64 (1895.)

12 Speese v. Schuylkill River East Side R. R., 201 Pa. 568 (1902), affirming 10 Dist. 515 (1901.)

13 Pittsburgh, Bessemer & Lake Erie R. R. Co. v. Glant, 29 Pitts. 113 (1898.)

14 Weigold v. Pittsburgh, Carnegie & Western R. R. Co., 208 Pa. 81 (1904.)

86. Where a city undertakes a great public improvement, by which the tracks of a railroad are sunk below the level for the purpose of abolishing grade crossings and the city by ordinance assumes responsibility for "the construction and removal of temporary railroad tracks and the maintenance of railroad and highway travel during the construction," the railroad company is not liable to a property owner for an injury caused by the prevention of free ingress to and egress from his property resulting from the laying of a temporary track in front of his premises where no negligence in the operation of the road is shown.1

Taking of Water from Stream.

87. A railroad company, by virtue of its right as a riparian owner on a stream, has a right to take water from the stream for ordinary domestic purposes, but has no right to use the stream in such a manner as to materially diminish the supply of the lower riparian owner.2

An injunction will not be granted at the suit of a railroad company to restrain a water company having the right of eminent domain from taking water from a stream where plaintiff derives its title to the water of the stream by virtue of leases from the riparian owner.

The right acquired under the leases having been obtained

I McGrane v. Philadelphia & Reading Ry. Co., 20 Super. Ct. 200 (1902.)

2 Myers & Erwin Co. v. Philadelphia, Jenkintown & Cheltenham Pass. Ry. Co., 12 Montg. 46 (1896.)

from a riparian owner has no greater dignity than the right of the riparian owner himself. Riparian owners have no ownership of running water, no right to divert and sell it to strangers for general use and are limited in their own use of it to ordinary domestic purposes.3

A riparian owner has the right to remove and sell sand which has been deposited as alluvium between high and low watermark on the bank of a navigable stream, provided that he does not interfere with the public rights of navigation, fishery and improvements, and if a railroad company for its own purposes and not for the improvement of the river, erects a structure on the opposite bank in such a way that the direction and flow of the current are changed, and the sand bank is swept away and future alluvium prevented, the riparian owner may, in an action of trespass against the railroad company, recover damages for the sand swept away and also for the loss of future alluvium.1

Diversion of Water.

88. Where a railroad company by changing the grade of a street diverts the natural flow of the water and carries it through a box drain under the road to the land of an adjoining owner, from whence it is then carried to the land of a third person, the railroad company is liable to such third person for injuries sustained, notwithstanding the owner of the land upon which the water is first thrown consents thereto, that the borough has consented to the construction of the drain and may be itself liable for the injuries, and that other landowners may have contributed to the injury by making connection with the gutter so that refuse matter from their properties was carried through the box drain.5

Right of Mortgagee.

89. A purchaser at sheriff's sale under foreclosure of a mortgage, which was a lien on the property appropriated by a

3 Philadelphia & Reading R. R. v. Pottsville Water Co., 182 Pa. 418 (1897), affirming 18 Pa. C. C. R. 501 (1896.)

4 Freeland v. Pennsylvania R. R. Co., 197 Pa. 529 (1901.)

5 Dennison v. Somerset & Cambria R. R. Co., 21 Super. Ct. 248 (1902.)