award, and it only remains to fix the just compensation to be made to the owner. But the title has not passed, and will not pass, until the plaintiff receives the compensation ultimately fixed by the trial de novo provided for in the statute. So that, if the result of that trial should be a judgment in its favor in excess of the amount paid into court, the defendant must pay off the judgment before it can acquire the title to the property entered upon, and, failing to pay it within a reasonable time after the compensation is finally determined, it will become a trespasser, and liable to be proceeded against as such; and, in such case, if the plaintiff shall sustain damages by reason of the use of its property by the defendant pending the appeal, the latter will be liable therefor. The apprehension, therefore, that the plaintiff may lose its property without receiving just compensation therefor is without foundation. Some stress is laid upon the possibility that the defendant may become insolvent before the proceedings below reach a conclusion, and become unable to pay any damages in excess of the amount it may pay into court. The possibility of such insolvency is not, in our opinion, a sufficient ground for holding that the provision made in the act of congress for securing just compensation is inadequate. Absolute certainty in such matters is impracticable, and therefore cannot reasonably be required. In determining the validity of the act of congress, the presumption must be indulged that a deposit in court of double the amount awarded by three disinterested referees appointed by the president will amply secure the payment of any compensation that may be fixed at the trial in the court below. The record states that the defendant offered to pay into court double the amount of the award made by the referees. The offer to pay is not a compliancewith the statute. The amount required to be deposited must be actually paid into court before the company can rightfully enter upon the lands sought to be condemned, or proceed with the construction of its road. The decree is reversed, and the cause remanded for further proceedings in conformity with this opinion. United States May Exercise Right of Eminent Domain.-See United States v. Oregon R. & Nav. Co. (C. C.), 14 Am. & Eng. R. Cas. 23, note 30. Compensation for Lands Taken-Adequacy of Provisions For.-See Covington, etc. R. Co. v. Piel (Ky.), 33 Am. & Eng. R. Cas. 207, note 213, where the cases are collected. Johnson v. Baltimore, etc. R. Co. (N. J.), 39 Id. 101; Oliver v. Union Point, etc. R. Co. (Ga.), 39 Id. 107. Grant of Right of Way by Congress Through Indian Lands.-Roberts v. Missouri, K. & T. R. Co. (Kan.), 43 Am. & Eng. R. Cas. 522; Buttz v. Northern Pac. R. Co. (U. S.), 29 Id. 455; Utah, etc. R. Co. v. Fisher (U. S.), 24 Id. 116; Dubuque, etc. R. Co. v. Des Moines V. R. Co. (U. S.), 14 Id. 532. CHICAGO & NORTHWESTERN R. Co. V. GALT. (Illinois Supreme Court, January 21, 1890; rehearing, June 12, 1890.) Eminent Domain-Purposes of Use-Land for Alteration of Street.-A railway company which had power to take land for railway purposes only, sought to condemn certain land for two purposes, one for the use of its road and the other for the alteration of a public street. Held, that the use for which the property was desired was not divisible, and that, under the petition presented, the court had no jurisdiction to condemn the whole or any part for a right of way, and that advantage could be taken thereof collaterally. Same Presumption of Payment of Damages. In proceedings to condemn land no presumptions are indulged in favor of the regularity of the proceedings. Accordingly where there is no proof that the damages assessed for the land taken by a railway company were paid, and where the railway company has not taken possession of such land, payment will not be presumed after a lapse of more than twenty years. Adverse Possession by Railway Company.-Where a railway company has made no attempt to use for a right of way certain lands condemned by it, and is possessed of no paper title, the fact that it has dug away some of the soil and piled some ties upon the land, not done under any claim of ownership, will not give it a title under adverse possession. APPEAL from Whiteside County Circuit Court. John G. Manahan, for appellee. Case stated. SHOPE, C. J.-This was an action of ejectment brought by appellee, Galt, against the Chicago & Northwestern Railway Company to recover the possession of the south 50 feet of lots 6, 7, and 8, in block 44, west of Broadway, in the city of Sterling. The suit was brought January 22, 1885. Plaintiff claimed title in fee. The defendant filed the general issue. The trial was had by the court without a jury, and resulted in a judgment for the plaintiff, from which the defendant prosecutes this appeal. Both parties claim title from a common source. The plaintiff below gave in evidence a warranty deed from George H. Wells to Nelson Mason for said lots 6 and 7, dated December 23, 1857, and recorded February 12, 1858; also warranty deed from Nelson Mason and wife to plaintiff for lots 6, 7, and 8, dated December 1, 1881, and recorded February 14, 1882. The defendant claimed title under a proceeding to condemn the south 50 feet of the lot, and also interposed the statute of limitation. The claim of title by the defendant to the portions of the lot in controversy is by a condemnation proceeding instituted by the Mississippi & Rock River Junction Railroad Company in the circuit court of Whiteside county in 1855. The validity of the judgment and proceeding therein is questioned. On the 25th day of September, 1854, said railroad company filed its petition in the circuit court, addressed to the then presiding judge of that court, asking for the appointment of commissioners to assess the damages to the lands therein named, including the part of these lots in controversy. Upon proof of notice of the application, the judge appointed commissioners, who, after being duly sworn, heard the evidence produced by the parties respectively, viewed the land, and assessed the damages sustained by the respective owners, and reported in writing to the judge of the circuit court. The report recites the order of their appointment, specifies the lands, the names of the owners of each piece, and the damages which the owner of the several parcels of land will sustain by reason of the same being appropriated to the purposes named in the petition. The report finds that George H. Wells is the owner of said lots 6 and 7, and that he will sustain $50 damages. No reference is made in the report to said lot 8, nor were any damages awarded for taking and appropriating the same. Several owners of lands, among whom is said Wells, being dissatisfied with the assessment, made application to the judge of the circuit court, as they might do under section 7 of the act incorporating the company, for a modification of the report. Certain modifications were made by the judge, and the report affirmed. Among the tracts thus presented in which the assessment was complained of were said lots 6 and 7, and in respect of which the following judgment was rendered: "Mississippi & Rock River Junction Railway v. George H. Wells. It is ordered and adjudged by the court that the assessment of $50 to said Wells, for and by reason of the appropriation by said company for the use of said railroad, and for the alteration of River street, for that part of lot 6 and 7, in block 44, west of Broadway, in Sterling, the property of said Wells, which lies within fifty feet of the south line of said block, be and is hereby approved and confirmed. Whereupon it is ordered and adjudged by the court that the said Wells have and receive of said company the said $50 damages, together with his costs in and about this suit expended, and that he have execution therefor. And the said report, as hereinabove modified, is accepted, approved, and confirmed, and it is ordered that said report, with this order modifying and accepting the same, be entered of record in the said court." The authority of the railroad company to appropriate pri vate property for the use of the railroad is found in section. 7 of the charter of that company, approved February 15, 1851. After giving the company power to purchase and receive and hold such real estate as might be necessary and convenient in accomplishing the purposes of its incorporation, that section provides that it "may, by their agents, engineers, and surveyors, enter upon and take possession of and use all such lands and real estate as may be necessary and indispensable for the construction and maintenance of said railroad, and the appendages and accommodations requisite and appertaining thereto; but whenever any lands, real estate, or material shall be taken and appropriated by such corporation for the location and construction of said railroad or its · appendages, or any work appertaining thereto, and the same may not be given or granted to said corporation, or the proprietor or proprietors do not agree with said corporation as to the amount of damages or compensation which ought to be allowed and paid therefor, or shall not mutually agree upon some person or persons to appraise the same, the damages shall be estimated and assessed in the manner following," * * * It then provides for the appointment of commissioners; the manner in which they shall discharge their duty; that a record shall be made of their report, with the order of the court thereon, accepting or modifying the same; and that upon the payment of the damages assessed, if any are assessed, and the expenses of the assessment, the corporation shall become seized of said lands and property, and entitled to the use of the same, "for the purposes aforesaid." Sess. Laws 1851, pp. 254-258. No power is given by the charter to condemn land for a public street. The words of its charter, that the company "may, by their agents, engineers, and surveyors, enter upon and take possession of and use all such lands and real estate as may be necessary and indispensable for the construction and maintenance of such railroad, and the appendages and accommodations requisite and appertaining thereto," give power to take land for railroad purposes only. It would seem that the railroad company had determined to locate its road along River street, in the city, and, in order to furnish an equivalent to the public for the streets so taken, desired to move the street 50 feet further north, upon and along block 44, and certain blocks to the east and west thereof. The petition of the railroad company states that the parts of lots 4, 5, 6, 7, 8, and 9, in block 44, are "needed by said company for their right of way, and for the alteration of River street, in said town of Sterling, being all that part of said lots lying within fifty feet of the south line of said block." And the petition asks for the appointment of com missioners" to assess such damages as the several persons above named will severally sustain by reason of the appropriation of said land belonging to the said several persons before named as above described, for the construction of the said railroad and its appendages, and for the other purposes named in said petition." In the report of the commissoners it is stated they have assessed damages "for the purposes therein specified." condemn land for street. It is apparent that the proposed condemnation was for other than railroad purposes. It was sought for the purpose of making a public street in the town of Sterling, in Authority to the place of one appropriated by the railway company for its right of way. This we are of opinion was without authority of law. The municipal authorities of the town had by its charter exclusive jurisdiction of the streets, and power to grant the company the right to lay its tracks therein, and if, in consequence of such grant or privilege, it became necessary to appropriate real estate for the purpose of widening or altering the street, the town authorities alone had power to appropriate the lands necessary therefor, by making just compensation. The railway company had power to condemn land for the uses granted in its charter, but none whatever to lay out a public street, or to change the location of one already established; nor had the circuit judge any jurisdiction or authority to lay out a street within the incorporated town, in any event; and the attempt so to do, or to take the land of the citizen therefor, was abortive and a nullity. It cannot be said that the condemnation was good for the right of way, and void for the purpose of changing the location of its street. The two purposes for which the condemnation was made are so inseparably connected in the petition, report, and judgment as not to be capable of severance. The condemnation was not for a single purpose. It was no more for the right of way of the company than for the alteration of the public street. There is nothing in the proceedings to indicate that any particular part of the land sought to be taken was for railway purposes, and another part thereof for the street sought to be laid out and substituted for River street; but the whole south 50 feet of the lots were sought to be condemned for two distinct purposes, one within the power conferred upon the company and the other not. Such a proceeding is not authorized by law, and cannot be tolerated in a summary proceeding by which the citizen is deprived of his property rights. Lewis, Em. Dom. § 600, says: "The power to force a man to give up his property against his will, and for a consideration fixed by others, is one which is in its nature harsh and against common right. According |