of way should be held as a fund for the satisfaction of the mortgage, and thus have reached the end sought in this motion. This might also have been accomplished by an independent action. But the service of the motion upon an attorney of the railroad company did not bring the company into court in the foreclosure action, and there was no attempt to make the persons to whom the money was paid parties to that action. The fact that they were attorneys for one of the parties in the condemnation proceeding does not alter the case. The two proceedings were entirely independent of each other, and neither the parties nor funds in one proceeding are within the jurisdiction of the court in the other unless proper steps for that purpose are taken. No effort of any kind in any case was made to control or reach the fund until some time after the money had been awarded and paid. The steps taken were ineffectual. It was not a fund within the jurisdiction of the court in the foreclosure action, and the court rightly denied the motion. Its judgment will be affirmed. All the justices concurring. Condemnation of Mortgaged Property.-See generally, Wooster v. Sugar River Val. R. Co. (Wis.), 10 Am. & Eng. R. Cas. 499; Lehigh, etc., Co. v. Central R. Co. of N. J. (N. J.), 12 Id. 416; Dodge v. Omaha, etc., R. Co. (Neb.), 28 Id. 260; Mutual Life Ins. Co. v. Easton & A. R. Co. (N. J.), 17 Id. 78; Adams v. Lamoille Val. R. Co. (Vt.), 25 Id. 172; note 14 Ia. 428, 474; Long Dock Co. v. Morris & E. R. Co. (N. Y.), 30 Id. 431, note 435, where all the cases are collected. MIDLAND R. Co. ข. SMITH. (Indiana Supreme Court, September 18, 1890.) Eminent Domain-Description of Land-Amendment.-Where, in condemnation proceedings, the supreme court reverses a judgment for damages in pursuance of the application of the landowner because the description of the land taken is not sufficiently precise, it is not error for the lower court, in obedience to the mandate above, to grant leave to amend the description as set forth in the application and writ. Same Time for Filing Exceptions to Award.-A landowner making application for a writ for the assessment of damages for the appropriation of his land by a railway company, may be permitted by the court to file exceptions to the award made by the sheriff's jury even after the case has been to the supreme court and has been returned for a new trial; and this although the railway company alone had exceptions on the record at the former hearing. Section 3907, Ind. Rev. St. 1881, limiting the time within which exceptions may be filed, applied. Landowner Permitting Entry by Company-Waiver of Rights.-A landowner who voluntarily permits a railway company to enter upon and ap propriate his land without first making compensation, does not thereby waive his constitutional protection or statutory right to have damages assessed under section 3953 Ind. Rev. St., 1881. Limitations-When Statute Begins to Run Against Landowner.-Where a railway company grades its right of way through a landowner's property without dispossessing him, the statute of limitations will not begin to run against his right to apply for a writ for the assessment of damages, until actual possession of the land is taken by the company. APPEAL from Hamilton County Circuit Court. Case stated. MITCHELL, J.-In August, 1885, Smith made application, in pursuance of sections 906, 909, Rev. St. 1881, for a writ for the assessment of damages, alleging that the railway company had located, and was about to proceed with the construction of, its road across his land, without having made or tendered any compensation for the accruing damages and without having taken any step to have the amount of compensation assessed or fixed by agreement. A former judgment for damages in pursuance of the application thus made was reversed, because the description of the land appropriated, as required by the statute, was not sufficiently precise. Midland R. Co. v. Smith, 109 Ind. 488. Amendment of descrip tion. The court below, in obedience to the mandate in the above case, granted leave to amend the description of the land appropriated, as the same was set forth in the application and writ. There was no error in this. There was no change in the location of the road. The amendment simply furnished a correct description of the land upon which the road was actually located and graded. Proceedings such as this are amendable in matters of description, so long as they remain in fieri. Steele v. Hanna, 117 Ind. 333; Winship v. Crothers, 20 Ind. 455. We cannot assume that the sheriff's jury did not examine the land actually described in the amended application and writ. Indeed, the record shows that the amendment did nothing more than to make the application and writ conform to the description as contained in the verdict of the jury. Time for fil ing excep The appellant complains that the court erred in permitting the appellee to file exceptions to the award made by the sheriff's jury, after the case had been returned from this court. At the former hearing, the railway company alone had exceptions upon the record. Subsequently the appellee was permitted to file exceptions to the award, on the ground that the amount of damages assessed by the sheriff's jury was too low. The appellant insists that no exceptions can be filed after the expir tions. ation of 10 days from the making of the award. Section 3907, Rev. St. 1881, limits the time within which exceptions may be filed by either party to the award of appraisers to 10 days after the filing of the award, but, as we have seen, the present proceeding was instituted under the statute which regulates the assessment of damages by an inquest to be held by the sheriff. This latter statute provides, in effect, that issues of law and fact may be made and tried, and proceedings taken as in other actions, after the return of the inquest to the court by the sheriff. Section 896, Rev. St. 1881. Conceding that the two statutes, so far as they relate to the same subject, are to be construed in pari materia, the conclusion follows, according to the settled interpretation of these statutes, that, where exceptions are filed by either party within 10 days after the filing of the award or inquest, an appeal is thereby effected, and the case then stands for amendment, or for the filing of additional exceptions, or the making of new issues, the same as any other civil action. Swinney v. Ft. Wayne, M. & C. R. Co., 59 Ind. 205; McMahon v. Cincinnati & Č. S. L. R. Co., 5 Ind. 413. An appeal having been effected within 10 days by the filing of exceptions, it was not error to permit the appellee to file exceptions to the amount of damages awarded after the expiration of 10 days. A party to a proceeding for the assessment of damages might be quite content to forego the expense and vexation of an appeal, notwithstanding the damages might seem inadequate or excessive, as the case may be. If, however, his adversary files exceptions, and takes an appeal, we can discover no good reason why the appellee may not then also file exceptions and make issues of law or fact, as in other cases. Waiver of for assess ment. It is contended next that the facts stated in the application show that the landowner was not entitled to a writ for the assessment of his damages, because it appears therefrom that he had permitted the company to enright to apply ter upon and appropriate his land under an agreement that the company should not acquire the title until compensation had been made for the land. The argument is that an owner of land, who voluntarily permits a railroad company to enter upon and appropriate his land to a public use, without first making compensation, thereby waives his constitutional protection or statutory right to have the damages assessed, and must thereafter rely upon an express or implied contract to pay the value of the land, if, indeed, he has not waived his right to compensation altogether. It is quite true that an owner of land, who has notice of proceedings for the laying out of a highway, who neglects or fails to make application for compensation or damages re sulting therefrom at the proper time, will be presumed to have waived any claim for damages. Reckner v. Warner, 22 Ohio St. 275; Harper v. Richardson, 22 Cal. 251. This follows as a consequence of the provisions of special statutes applicable to proceedings for the laying out of highways. These statutes, and the decisions based upon them, are not controlling in a case like the one before us. A landowner who consents to the appropriation of his land by a railroad company is not precluded thereby from seasonably instituting proceedings for the assessment of his damages. Louisville, N. A. & C. R. Co. v. Beck, 119 Ind. 124, Indiana, B. & W. R. Co. v. Allen, 113 Ind. 308, and 113 Ind. 581. Section 3953, Rev. St. 1881, provides in express terms that "if, from any cause, there shall be any failure of the title to any right of way, or when the title thereto has not been acquired, upon which any railroad of this state is now constructed, it shall be lawful for the company owning the road, or for the party owning such lands upon which any part of the road has been constructed, to apply to the proper court for the writ of assessment of damages," etc. The facts stated in the application bring the case clearly within the above statute. LimitationWhen statute begins to run. It is insisted next that the action was barred by the statute of limitations, which requires certain actions to be brought within six years after the cause of action accrued. We do not doubt but that the claim for compensation must be asserted within the statute of limitations, for after that period has elapsed it will be conclusively presumed that the damages were assessed and paid, or that they were waived. Blairv. Kiger, 111 Ind. 193; Brookville & M. Hydraulic Co. v. Butler, 91 Ind. 134; Foster v. Cumberland & Val. R. Co., 23 Pa. St. 371; Mills, Em. Dom. § 340. Whether the action should have been brought within six or fitteen years, we do not decide, because the facts found make it very clearly appear that the action did not accrue until the appellant took possession of the land, which was less than six years before the commencement of this proceeding. Notwithstanding the grade was finished in 1873, the evidence tends to show that landowner retained complete possession and control of the land until in the year 1885, when the appellant, having acquired the rights of its predecessor, took possession and commenced laying ties, and otherwise equipping the road for use. As the owner was in possession of the land which comprised the graded right of way, with a perfect title of record, the appellant cannot reasonably avail itself of the doctrine of estoppel. There was no standing by, since it appears that, the owner of the land, notwithstanding the road was graded up some 10 or 12 years before the appellant un44 A. & E. R. Cas.-15 dertook to complete it, never relinquished possession and steadily asserted his purpose not to do so until his damages were assessed or paid. There is no essential variance in the proof and finding, nor is there any departure from the material averments in the application. The evidence tends to support the finding, and we can discover no error which would justify a reversal of the judgment. Judgment affirmed, with costs. Eminent Domain-Limitation of Proceedings to Recover Compensation.— See Lyles v. Texas, & N. O. R. Co. (Tex.), 39 Am. & Eng. R. Cas. 59, note 60. In Mitchell v. New Orleans & N. E. R. Co., La. Sup. Ct., April 8, 1890, it was held that a demand for compensation for land which has been taken by a railway corporation for a roadbed, and upon which their railroad has been constructed and put in operation, otherwise than by legal expropriation proceedings, is not prescribed by two years, under sections 698, 1479, Kev. St., Rev. Civil Code, art. 2630, and section 5 of act 125 of 1880, p. 16. They apply only in cases of judicial expropriation. UNITED NEW JERSEY R. & CANAL CO., and PENNSYLVANIA R. Co. Eminent Domain-Crossing of Two Roads Condemning Part of Route.By the terms of the general railroad law, a company organized thereunder may condemn the “located route" of an existing railroad only for the purpose of crossing the same; and where a petition of such a company for the appointment of commissioners shows that it seeks to condemn a part of such a route generally, and not merely for the purpose of crossing, an order made thereon will be set aside. Description of Lands-Survey.-The survey of the route of the railroad, filed in the office of the secretary of state, limits the right of condemnation to the lands included in its description, properly construed; and where a petition contains a description of the lands sought to be condemned, and that includes lands not covered by the survey, an order made thereon cannot be sustained. Plan of Crossing Existing Road. The general railroad law does not authorize a company organized thereunder to adopt a plan of crossing an existing railroad which will compel an alteration of its grade in order to its continued operations: but the crossing authorized to be acquired by condemnation is one where the previously existing use of the spot as a railroad continues in cooperation with the use by the new railroad. Same. Such a crossing will be effected by a tunnel, an overhead bridge or a passage across the rails at grade. CERTIORARI bringing up an order appointing commission |