railroad company before the location of its line cannot recover by ejectment possession of the portion of the land included in the railroad company's right of way. Scott, J., said:

"It is clear that plaintiff took by sheriff's deed the interest of the mortgagor; that the mortgage contract upon her estate when executed, was subject and subordinate to the right of the State at any time to resume its sovereignty in the land for public use upon making compensation to the owner and that until the franchise to the defendant is terminated and the use reverts to the plaintiff, she is not entitled to recover possession and defeat the Commonwealth's grant."

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

90. An abutting property owner threatened with special injury due to interference with access is entitled to an injunction to restrain a railroad company from laying its tracks where the company has no authority to do so.1

Under the Act of June 19, 1871, P. L. 1360, a court of equity at the suit of an abutting property owner may compel a manufacturing company without the right of eminent domain to remove a railroad which it has constructed in a street on which the plaintiff's property abuts.2

A person who is the owner of land abutting upon a street may maintain an injunction to restrain a railroad company from constructing a railroad siding longitudinally along the street higher than the established grade.3

An injunction will not be awarded to restrain the grading of a railroad where it appears that the injury alleged by complainant is not different in kind from that suffered by the general public. Such a condition is damnum absque injuria.*

Equity will not restrain a railroad company from entering on the lands of an owner where there is a dispute as to the title.5

I Denison v. Ryan, 10 Dist. 495 (1901.)

2 Hopkins v. Catasauqua Manufacturing Co., 180 Pa. 199 (1897.)

3 Zook v. Pennsylvania R. R., 206 Pa. 603 (1903), affirming 20 Lanc. 322 (1903.)

4 Weihle v. Pennsylvania R. R., 8 Dist. 309 (1899.)

5 Laughlin v. Philadelphia & Reading Ry., 12 Dist. 772 (1903); 19 Montg. 98 (1903.)

Ejectment.

91. Daniel Biting conveyed in 1814 to Daniel Shang forty and one-quarter acres of land "excepting and forever reserving the graveyard on the land hereby conveyed at all times hereafter to enter thereon without the hinderance or denial of the said Daniel Shang, his heirs and assigns."

It was held that the clause in the deed "excepting and forever reserving the graveyard on the land hereby conveyed at all times hereafter to enter thereon without hinderance or denial of the said Daniel Shang, his heirs or assigns," constituted an exception saving to the grantor the fee of the land used as a graveyard and in an action of ejectment by the plaintiff to recover the land wrongfully occupied by the railroad company the plaintiff was allowed to recover even although plaintiff's ancestor previously brought an action on the case against the railroad company for depreciation in the value of his land where it appeared that the verdict which he had recovered had been set aside on the ground that he was mistaken in his form of action.6

A person having recovered for the depreciation in the permanent value of his property by the appropriation of a small part of it by a railway company cannot afterwards in an action of ejectment recover the land so appropriated.

Trespass.

92. If a railroad company makes an entry upon land without the consent of the owner and without payment of compensation to him, the remedy of the landowner is by an action of trespass and not by petition for appointment of viewers.8

6 Mannerback v. Pennsylvania R. R., 16 Super. Ct. 622 (1901.)

7 Klugh v. Middletown, H. & S. Ry. Co., 17 Pa. C. C. R. 373 (1896.) 8 Mountz v. Philadelphia, Harrisburg & Pittsburg R. R. Co., 203 Pa. 128 (1902.)

93. An injunction will be granted to restrain a railroad company from entering and taking possession of land of a gas company for the purpose of constructing an additional track where it appears that the land is necessary for the present and future uses of the gas company and that the taking of such land is merely for the convenience and economy of the railroad company.

Chief Justice Sterrett said: "It is quite apparent from the master's conclusions that there exists no necessity that impels defendant to take plaintiff's land for its additional track. It is simply a question of economy or convenience or both combined. This is not sufficient to justify the taking of property which has heretofore been acquired under the right of eminent domain and for many years devoted to public use by another corporation. As was said by Mr. Justice Gordon in Pennsylvania Railroad Co.'s Appeal, 93 Pa. 159: 'It is true that franchise is property and as such may be taken by a corporation having the right of eminent domain, but in favor of such right there can be no implication unless it arises from a necessity so absolute that without it the grant itself will be defeated. It must also be a necessity that arises from the very nature of things over which the corporation has no control. It may not be a necessity created by the company itself for its own convenience or for the sake of economy. To permit a necessity such as this to be used as an excuse for the interference with

or extinction of previously granted franchises would be to subject these important legislative grants to destruction on a mere pretense, in fact at the will of the holder of the latest franchise." "

Mr. Justice Paxson, in Pittsburgh Junction Railroad Co.'s Appeal, 122 Pa. 511, employed language especially applicable to the case at bar: "The location claimed for the defendant is a matter of economy not of necessity. It can construct its road and reach its terminus by another route. It is true it would be expensive, but it is a mere question of money and engineering skill. It is not entitled to run through plaintiff's yard and cripple its facilities for handling its business, merely to save money." In Sharon Railway Company's Appeal, 122 Pa. 533, the same learned Justice, reiterating the same principle, says: "It is settled law and rests upon sound principles." The same principle is reaffirmed in Groff's Appeal, 128 Pa. 633, and again in Perry County Railroad Extension Co. v. Newport & Sherman Valley Railroad Co., 150 Pa. 200." 1

Property of Bridge Company.

94. Land belonging to a bridge company not in actual use, which is a necessity to a railroad company for the purpose of additional tracks, which necessity can be met in no other way, may be condemned by a railroad company, although the bridge company contemplated using a portion of the land for the erection of a toll house, where it appears that the toll house may be erected upon steel bents between the tracks.2

A bridge company cannot be required to construct an overhead crossing on a highway crossed by a railroad at grade, nor restrained from erecting a bridge across a river, although the result of the construction of such bridge will be to increase travel on the highway.3

I Scranton Gas & Water Co. v. Northern Coal & Iron Co., 192 Pa. 80 (1899.)

2 Youghiogheny Bridge Co. v. Pittsburg & Connellsville R. R., 201 Pa. 457 (1902.)

3 Lehigh Valley R. R. v. Laceyville & Horseheads Bridge Co., 23 Pa. C. C. R. 225 (1899.)