notice of it before the recording of its survey. Many other facts appear in the commissioner's report. The foregoing is perhaps sufficient, in order to make the claim of the respective companies plain, which is that each obtained priority of right to the same land for its railroad.

The Barre Company says-First, that its purchase of land was prior to the recording of the Granite Company's survey, and this by virtue of the said contract to self; and, second, that, if subsequent, it is sufficient, because it was before the Granite Company had paid or deposited the land damages, and so became entitled under the statute to the seizin and possession of the land. The Granite Company says that, having taken the statutory initial step to obtain seizin and possession, and continued with reasonable diligence, about which no question is made, it could not be ousted by the Barre Company's subsequent purchase, and insists that the purchase must be treated as subsequent.

Effect of loca

The question is new in this state. It has been decided in other states, and always, so far as the cases show which counsel have submitted, or that I have found, in favor of the Granite Company's contention. A late case tion of track. is Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 35 Am. & Eng. R. Cas. 267, decided by the court of appeals of New York in June, 1888, and it was there held that, when the initial steps pointed out by the statute were taken, there only remained for the company to acquire, through purchase or through proceedings in invitum, the right of way over the lands through which the line of route had been surveyed. The initial steps which the New York statute provided were the making and filing of a map and profile of the route intended to be adopted, and giving certain written notice to all occupants of the land affected. The court then said: "Clearly, there is involved in these provisions the intention of the legislature that, after the initial proceedings have been taken which the statute points out as the first action of the new corporation, the lands over which the company's route is located shall be subjected to the right of the company thereafter to construct thereon. This right to locate its line of road at its election is delegated to the corporation by the sovereign power, as is the right subsequently to acquire in invitum the right of way from the land-owner. * When, therefore, a corporation has made and filed a map and survey of the line of route it intends to adopt for the construction of its road, and has given the required notice to all persons affected by such construction * ** in our judgment it has acquired the right to construct and operate a railroad upon such line, exclusive in that

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respect as to all other railroad corporations, and free from the interference of any party. By its proceedings it has impressed upon the lands a lien in favor of its right to construct, which ripens into title through purchase or condemnation proceedings. We could not hold otherwise without introducing confusion in the execution of such corporate projects and without violating the obvious intention of the legislature."

Filing of sur

vey does not

constitute initial step against landowner.

The decisions in New Jersey and Pennsylvania, and other states, have been the same. Indeed, I have not found, and do not think there is, a judicial decision or utterance to the contrary. In Pierce on Railroads the author says: "The prior right to particular land attaches to the company which first actually surveys and adopts a route, and files its survey according to law." Page 157. See, also, 2 Wood. Ry. Law, § 237, p. 744, note 1, and page 750. The numerous authorities touching this question are there cited by these authors. But it is said that where this rule has obtained, the landowner can recover his damages as soon as the location is made and recorded, which is not the rule in this state. This is true in some states, and may be in all where the courts have held as above shown; but in no instance have I found this fact alluded to as a reason for the ruling. In no case is it held that this initial step constitutes a right to the land as against the owner. In all the states there are further provisions, as in our state, for the appraisal proceedings, and completing the establishment of the right to the land. The filing and recording of the survey is nowhere spoken of as other than the initial step to the obtaining of the ultimate right. The right of the railroad company thereunder is no greater as against the land-owner in those states where the land-owner may proceed to enforce his claim for damages upon filing and recording the survey, than in our state. The reason for the ruling is expressed in the quotation, supra, from the New York case first cited, viz., the legislative intent. Under its franchise the railroad company may select its location between the terminal points, (the location can be determined only upon careful examination and expensive surveys,) and then the statute prescribes that this must be recorded in the respective town clerks' offices before the company may commence proceedings for the purpose of acquiring title to the land, or an interest therein. Those proceedings necessarily extend over several days. Can it be fairly inferred that the legislature intended by the provision for record that it should have no protective power as against another railroad company stepping in and buying the very land thus selected,

and thereby thwart the action thus taken, and practically get the benefit of the expense incurred? Such construction could serve no beneficial purpose, but would tend to promote confusion, strife, and the seeking of undue advantage. It is to be kept in mind that the question here is not between the railroad company and land-owner, but between the two railroad companies. In such a controversy it has been repeatedly held, as before stated, that when this initial step has been taken, pursuant to the statute, the company first taking it has acquired a vested and exclusive right, not to the land as against the owner, but to build its railroad on the line which it has adopted, subject to the right of other roads to cross. It is a right which undoubtedly might be lost by neglect to follow up the first steps with proper diligence, but that question is not here. We therefore hold that the Granite Company obtained the prior right to build on its recorded location, as against a subsequent sale of the same land to the Barre Com

pany.

contract for

Was the sale in this case prior or subsequent? The deed of conveyance was subsequent, but the contract to sell was prior. At the time the contract was executed, February 22, 1888, the Barre Railroad Company had Rights under not been created. This did not occur until April unrecorded 9, 1888, the same day that the Granite Company right of way. filed its surveyed location in the town clerk's office; but it was earlier in the day. But on said 22d of February certain gentlemen were "considering the matter" (quoting from the report) of organization, and the building of a railroad, and on that day W. N. Burnham executed the contract containing this provision: "I hereby agree to sell and convey to A. D. Morse, in trust for said railroad company, any land necessary for its construction which I own.' It contained a further promise to execute a deed when requested, on presentation of a certificate of the stock of the company, which he was to take in payment. The report does not state how much land he owned, or where it was, except the Burnham meadow. It is not stated how large that was, but it appears from the plans in the case to be a meadow of some extent. As before stated, this contract was not put on the public land records, or known to the officers or agents of the Granite Company. The general and comprehensive terms of the agreement will be noted,-—“any land ** which I own," thereby making it, if valid, a possible bar to any other railroad company obtaining a right on Burnham's land. Suppose that Mr. Burnham had, notwithstanding his agreement with Mr. Morse, conveyed to the Granite Company the same land that it located upon. Then, under the

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law as to our registry system, it would hold the land as against this agreement. Why should there be any distinction between its right under a location made pursuant to the statute and a purchase? It is argued that, if the Granite Company had no notice of the agreement, it was not thereby injured. How can that be said when that company has made these preliminary examinations and surveys upon Mr. Burnham's land, and caused the same to be recorded, and shaped its whole line in that vicinity with reference to crossing his land in the place selected? This was all done, and the expense incurred, in reliance upon the records showing the true title. We think that when a railroad company has completed its preliminary examinations and surveys, and selected its location between the terminal points, and is ready to have the same recorded as the statute provides, it may have the record made in the same reliance upon the land records as to title that would pertain to it, or any other person who should buy the land.

Construction

The next question arises under the claim of the Barre Company to build its road across the side tracks of the Montpelier & White River Company in the of side tracks. granite yard, so called. The findings of the commissioners are conclusive against this claim, unless that company has the same right to run through the yards of the stone dealers as it would have if the three spur roads which the Montpelier & White River Railroad Company have built from its main line to the derricks and sheds of the several dealers in granite were not there. There are no express provisions in the charter of this company, or in the general railroad statutes, granting the right to extend side tracks from the main line onto the lands adjoining the surveyed limits of the road as located, except such right as im-pliedly exists under section 3358, R. L. That section reads: "No land without the limits of its road shall be taken by a railroad corporation for the requisite and convenient accommodation of its road without permission of the owner thereof, unless the commissioners, on the application of the corporation, and after twelve days' notice to the owner, first prescribe the limits within which such land shall be taken." The three side tracks which the Barre Company desire to cross were built several years ago, under an arrangement between the railroad company and the granite dealers that the latter were to do the filling and grading and the railroad company was to furnish and lay the ties and iron. This arrangement was not in writing, and the railroad company has no title to the land by deed or by the exercise of eminent domain. The title was, and has remained, in the granite:

dealers, for whose convenience, together with that of the railroad company, these spurs were built. They have been used as designed ever since. The yard in which the granite sheds are located, and on which these side tracks are built, lies adjoining next west of the railroad and depot at Barre, which was the terminus of the railroad. The report states that these side tracks were there built as they seemed to be required.

It appears that this railroad, as a whole, was built with reference, in large measure, to the granite industry in Barre. It is plain that to meet the demands of that indus

main line.

try extensive yard room at or near the station, and Side tracks on heavy machinery was required. The railroad same basis as company could have taken whatever land was necessary for depot accommodations, having reference to the nature of its business as there existing. Section 3357. The necessity of extending the railroad grounds, and erecting a derrick and other facilities for this business, was obviated by the above arrangement with the granite dealers. The question whether a railroad company can, under our statutes, and without express grants, build side tracks or spurs as they please to neighboring manufacturing or mining establishments, is not here involved. This is a case where parties located themselves by the railroad near the depot, and obtained the best service of the railroad by having side tracks run onto their own premises instead of other land, or elsewhere. In Bangor, O. & M. R. Co. v. Smith, 47 Me. 46, the court says: "We have no doubt that a railroad corporation may lay side tracks for the purpose of facilitating its business operations, or to meet its necessities, over any land which it may purchase and own in fee, or over which it may obtain the legal consent of the owner to lay a track, if no public interest or private right is affected." These side tracks were not mere private ways, outside of the principal road. They connected with it and were used as a part of it, and the people who had occasion for the transportation of the granite product and other material to and from these sheds over those spurs were interested in them. public, as the term is used in law in such connections, enjoyed a beneficial use of these roads. It was lately held by this court in Brock v. Town of Barnet, 57 Vt. 172, that a way laid out for one individual's convenience was yet a public way. So in Sherman v. Buick, 32 Cal. 241, it was held that roads leading from the main road to the farms of individuals are of public concern. They are open to every one having occasion to use them, and are therefore public. The business of these granite dealers was with the public, in a large

The