and to use the premises as a place of business. Such uses were inconsistent with the purposes for which the land was condemned, as much so as if it had been used as an ordinary warehouse or grocery store. It has been held that a railway company might grant a license for the erection and use of buildings on its right of way for convenience in delivering and receiving freight. Grand Trunks R. Co. v. Richardson, 91 U. S. 468. And it has been held that where "the premises were occupied as a station, furnishing food, lodging, horse keeping, and horse hire, and allowing buildings upon it to be used for a boarding house and a stable, and some of the land to be cultivated, all for the convenience of passengers and others, in order to increase the business of the road," such uses "were incident to its business as a passenger carrier, and consistent with its occupation for the purposes for which the land was taken, and with a claim to occupy for those purposes. Pierce v. Boston & L. R. Corp., 141 Mass. 481, 27 Am. & Eng. R. Cas. 359. The doctrine was applied in the foregoing case to show that such an occupation and use would not disseize the owner of the fee, and entitle him to recover the premises because of improper use. These cases, however, do not go the extent of holding that to use the premises taken for warehouses, shops, trades, etc., by private persons, it would not amount to such an abandonment by the corporation of the easement as would give the owner of the fee a right to damages for such use. If the doctrine could be stretched to this extent, there would be nothing to prevent a railroad corporation from having its right of way, and all its grounds not in use, occupied by warehousemen, storekeepers, and all kinds of traders, they paying rent therefor, and plead as an excuse that it was more convenient to the company in receiving and delivering freight. The correct doctrine is laid down in Lance's Appeal, 55 Pa. St. 25, where it is said "that the right of the commonwealth to take private property without the owner's consent exists in her sovereign right of eminent domain, and can never be exercised but for a public purpose, supposed and intended to benefit the public, either mediately or immediately. The power arises out of that natural principle that private convenience must yield to public wants. The public interests lie at the basis of the exercise of the power, or it would be confiscation and usurp ation to exercise it. This being the reason for the exercise of such power, it requires no argument to prove that, after the right has been exercised, the use of the property must be held in accordance with and for the purposes which justified its taking. Hence it is that no one can pretend that a railroad company may build private houses and mills, or erect

*

* *

machinery not necessarily connected with the use of their franchise, within the limits of their right of way." It was also held in the case that the "fee remained with the owner, and outside of the authorized use which must be public, or incidental to public use, the proprietary right is in the origi nal owner." The right of eminent domain does not extend beyond "the reasonable necessities of the corporation in the discharge of its duties to the public." In re New York Cent. & H. R. R. Co., 77 N. Y. 248. A railway may take private property upon compliance with the statute, paying the damages assessed for railroad purposes, or it may permit others to do so, but for no other purposes. It cannot take more land than is allowed by the law or its charter, or any except for the legitimate purposes of its franchise. Railroad Co. v. McLanahan, supra. If it acquire the right of easement for public purposes and its own necessities, by proceedings of condemnation, and change the use to private purposes, such change will amount to "an abandonment," and the owner will have his remedy. It was decided in Proprietors of Locks & Canals v. Nashua & L. R. Co., 104 Mass. 8, that a change of use to purposes of rent to persons engaged in business of their own "did not put an end to the right of use for the legitimate purposes of the franchise," and authorize a writ of entry by the owner, but that, in such form of action, the owner could establish his right to the fee, and recover mesne profits for the use of it. Id. These questions were discussed in the case of Odneal v. City of Sherman (Tex.), 14 S. W. Rep. 31, (decided at the present term by the commission of appeals), and the following principles clearly announced: (1) That the fee continues in the owner after land is condemned for public uses; (2) "where land is condemned for a special purpose on the score of public utility, the sequestration of the land is limited to that particular use; and (3) if the property be put to a wholly different use, though for public purposes, a new assessment will be required. In the case before us, it is impossible to say that the railroad could have used the premises in question as a wagon yard under the right of easement, and it is equally certain that what it could not do itself it could not license another to do. Appellant contends that the court erred in finding that plaintiff was entitled to recover as damages the rental value of the premises as a lumber yard. We have already seen that mesne profits may be recovered in such cases. Proprietors of Locks & Canals 2. Nashua & L. R. Co., 104 Mass. 8; Odneal v. City of Sherman, supra: and Sedg. Dam. 251. The land was used as a lumber yard, and the value of such use would be the correct inquiry on the subject of damages, there being no injury to the realty.

V.

Plaintiff's right to dam

ages.

title.

Appellant also contends that "the court erred in finding that plaintiff was the owner of the fee during the time the premises had been used by defendant, and espeSuperiority of cially in finding that he was such owner prior to plaintiff's the 2d day of March, 1883, (the day plaintiff recovered judgment for the land against the heirs of Johns), and in awarding him damages for injury to his rights as owner of the fee during all that time." The petition alleged that plaintiff was the owner of the premises on the 16th August, 1882, and laid the trespass on that day, which is alleged to have been continuous. It is admitted that Thomas Johns, who died in 1867, owned the land (eight acres, including the land in controversy), in 1866; that he had lived with a negro woman in the town of Hillsboro, by whom he had two children, Watson, and Dock Johns; that in October, 1867, eight acres of land, including that in controversy, was set aside by an order of the probate court of Hill county as a homestead to said Watson and Dock; and that on August the 5 and 16, 1882, plaintiff acquired deeds from Watson and Dock Johns. The true white legal heirs of Johns took possession of the eight acres, including the land in controversy, about July, 1879, the same being then unoccupied. The land in controversy was condemned by legal proceedings for that purpose against the real heirs of Johns for depot grounds and right of way in Hillsboro on the 20th day of July, 1881, and on the 25th day of September, 1882, the plaintiff brought suit in the district court of Hill county against the white heirs of Johns to recover the eight acres, and on the 2d day of March, 1883, a decree was rendered by consent in his favor for the land. The negro children could not have inherited the land, and the only right they obtained in the premises was the homestead right granted them by decree of the probate court. They had no fee simple estate, and conveyed none to plaintiff, and by their sale to him the homestead right was extinguished. The record does not show what title he recovered on in the suit against the white heirs of Johns. He did, however, recover the land from them on the 2d of March, 1883, and in favor of this judgment it will be presumed that he had title superior to that of the heirs at the time his suit was brought, to-wit, on the 22d of, September, 1882. Their ancestor being the admitted owner, the judgment against them would constitute a link in plaintiff's title, and would invest in him the paramount title to the fee; but it would not in any way interfere with the easement previously acquired by the railroad. This suit is not intended to contest the right of the railway to the easement. We find plaintiff with title to the fee, then, on the 22d day of September, 1882, by virtue

of his judgment, and not on the 16th day of August, 1882. He was only entitled to the rental value of the fee from the 22d of September, 1882, and not from the 16th day of August, 1882, as found by the court.

structing

Appellant, in his last assignment of error, complains of the ruling of the court in failing to sustain his exceptions to plaintiff's petition as to damages to his lot adjoining the right of way, and in holding defendant liable for Action for obdamages by reason of obstructing the view of plaint- view. iff from the lot. The petition alleged that plaintiff had the right of free passage through the land occupied by defendant, and by such occupancy he was deprived of this privilege; and that the view from his lot was obstructed by the houses, sheds, etc., erected by defendant. The court sustained the exception to the petition setting up the right of plaintiff to free passage over the grounds; but held the petition good as to the averments of obstruction to the view from the lot. Plaintiff had no right of passage over the grounds of the railway company, and was not entitled to damages because he was deprived of such use. He was not prevented from passing at any public crossing. Pierce, R. R. 159, 160. The petition does not show what advantage or benefit there was in such a view, or in what any damage could result by obstructing it. The mere fact that a view is obstructed from one place to another does not of itself import an injury. We think the exceptions to this part of the petition should have

been sustained.

right to cross

The court's findings of damages on this branch of the case was not only on account of obstructing the view from this lot, but, because of deprivation of use in crossing the railroad grounds, because the lot was valuable, Landowner's or would be, for a cotton yard; that the proximity grounds. of the lumber yard increased the danger of fire to cotton that might be stored on the lot, and enhanced the rate of fire insurance. After sustaining the exceptions to the petition holding that plaintiff had no right to free passage over these grounds, there was nothing left in the petition, upon which the claim for damages vested, but the averment as to obstructing the view. Had this allegation been good, no damage could have been assessed for other injuries not alleged, and it was error to award such damages. Our conclusion is that the judgment of the lower court should be reversed, and the cause remanded.

STAYTON, C. J.-Report of commission of appeals examined, their opinion adopted, and the judgment reversed, and cause

remanded.

Eminent Domain-Right of Railroad Company to Permit Third Party to use Premises Conveyed. See Pittsburgh & L. E. R. Co. v. Bruce (Pa.), 10 Am. & Eng. R. Cas. 1, note 11; Ross v. Pennsylvania R. Co. (Pa.), 27 Id. 367, note 368.

WILLIAMSPORT & NORTH BRANCH R. Co.

ย.

PHILADELPHIA & ERIE R. Co.

(Pensylvania Supreme Court, April 6, 1891.)

Location of Railroad-Effect as to Landowner and as to Rival Corporations. -As against a landowner, a railroad company can acquire only a conditional title by its act of location, which ripens into an absolute title upon making compensation; but as to third persons and rival corporations, the action of the company in adopting a definite location is enough to give it title.

What Constitutes a Legal Location--Preliminary Survey. An engineer alone cannot locate a railroad so as to give title to the company that employs him; and a preliminary survey made by an engineer which has never been reported to or adopted by the company, does not constitute a legal location of the line of the railroad which will give such company priority over another company which has adopted a line covering a portion of the same territory.

Same Pleading-When Validity of Location is put in Issue. In a suit by a railroad company to restrain another company from locating its line over the same land, an answer which denies that the plaintiff company has made a valid and legal location of its line over the same land, puts in issue the validity of the plaintiff's location.

APPEAL from Lycoming County Court of Common Pleas. The plaintiff, the Williamsport & North Branch Railroad Company, claimed to have located its line over a piece of land known as the "Metzgar Lot," and filed a bill against the Philadelphia & Erie Railroad Company to restrain that company from constructing its road over that piece of land. Henry C. Parsons, for appellant.

Addison Candor and C. La Rue Munson, for appellee.

Requisites of valid location.

WILLIAMS, J.-The important question presented by this appeal is, what constitutes a valid location on the ground of a projected line of railroad? It is singular that such a question should be to any extent an open one in a state remarkable as Pennsylvania is for the number and extent of its railroads. The act of location is an appropiation of private property by virtue of the right of eminent domain, with which the state has invested the railroad company either by the act of incorporation or by virtue of general laws. The requisites of a valid location may be considered, first, with reference to the pri ̧