tiff's deed." And the Court further said: "It is a well known and a reasonable rule, in construing a grant that all means to maintain it, and all the fruits and effects of it, are granted also. See, also, Brainard v. Clapp, 10 Cush. 6.

In the case at bar, we think that the legislature, in the original charter, fixed the width of the railroad, when taken by the right of eminent domain, delegated to the railroad company, at the width of sixty feet over and through the lands of appellant's ancestor. In People v. Smith, 21 N. Y. 598, the Court said: "The necessity for appropriating private property, for the use of the public or of the government, is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute, which shall at once designate the property to be appropriated and the purpose of the appropriation, or it may be delegated to public officers or, as it has been repeatedly held, to private corporations established to carry on enterprises in which the public are interested. There is no restraint upon the power, except that requiring compensation to be made. The exercise of the right of eminent domain stands on the same ground with the power of taxation. Both are emanations of the law-making power. They are the attributes of political sovereignty, for which the legislature is under no necessity to address itself to the courts. In imposing a tax, or appropriating the property of a citizen or a class of citizens for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law." When, therefore, the purpose and extent of the appropriation were clearly designated by the legislature, as in the case in hand, that was decisive both of the necessity and of the extent of the appropriation; and the court could neither extend nor limit, in such case, the purpose or extent of such appropriation. United States v. Harris, 1 Sumner, 21; The Water Works Co. v. Burkhart, supra; Nelson v. Flemming, 36 Ind. 310. If Reason W. Prather had instituted the proper proceedings, within the proper time, to have his damages assessed for the appropriation of his lands by the Jeffersonville R. R. Co., in June, 1851, it seems clear to us that, upon the facts stated in either paragraph of appellee's answer, the railroad company could not have successfully claimed, in such proceedings, that the width of its operation was less than sixty feet. It might have limited its appropriation, at the time it was made, to a width less than sixty feet; but not having done so, it must be conclusively presumed, we think, that by its entry upon, and its construction of its road over and through the lands of Prather, the railroad company appropriated, took and held such lands to the full width allowed by its charter, namely, "sixty feet wide." The title thus acquired, taken and held by the Jeffersonville R. R. Co., to the land within the limits of its appropriation, was under its charter a title in fee simple, and the land under such title passed to and

14 A. & E. R. Cas.-2

vested in the consolidated company, namely, the Jeffersonville, Madison & Indianapolis R. R. Co. Of course it was competent for the consolidated company, so owning and holding the lands so appropriated, within the limits thereof, to erect itself or by contract with its co-appellee, the Western Union Telegraph Co., such telegraph poles as were necessary to the proper maintenance of a line of telegraph, along the line of its railroad, or to do any other lawful act. For the reasons given, we are of opinion that the court committed no error, in overruling the appellant's demurrers to the several paragraphs of the appellee's answer, or either of them.

The judgment is affirmed with costs.

This case raises three questions involving the principles of eminent domain. Is compensation to the owner of the property taken a prerequisite to the exercise of the power? What amount of land can be appropriated? What is the title acquired?

When Compensation is a Prerequisite. The exercise of the power of eminent domain amounts to nothing more than a power to oblige an owner to sell and convey when the public necessities require it. Compensation is a primary requisite, but the time when it is to be made depends upon constitutional provisions, or upon the requirements of the statute bestowing the power. These statutes generally provide that compensation shall precede or accompany the appropriation. In many of the States, however, the constitution contains a provision like that of Ohio, which reads as follows: "Private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid."

Alabama.-Land may be entered upon before compensation made. etc. v. Bowie, 34 Ala. 461.

Com.

Arkansas.-Land may be taken if an adequate remedy is provided in the charter for existing statutes. Cairo R. R. v. Turner, 31 Ark. 494.

California.-Land cannot be taken before tender of compensation. Fox v. Western, etc., R. R., 31 Cal. 538; Davis v. San Lorenzo R. R., 47 Cal. 517; Cal. Pac. R. R. v. Central, etc., R. R., 47 Cal. 528.

Florida. Private property shall not be taken or applied to public use, unless just compensation be first made therefor.

Georgia.-Land may be taken after a bond approved by the court is filed. Carr v. Georgia R. R, 1 Ga. 524; Selma v. Gammage, 63 Ga. 604; s. c., 1 Am. & Eng. R. R. Cas. 41; Young v. McKensie, 3 Ga. 45; Rome v. Perkins, 30 Ga. 154.

Indiana. Compensation must first be made, except when the property is appropriated by the State. Cox v. L. & N. A. R. R., 48 Ind. 178; Graham v. C. & I. R. R., 27 Ind. 260.

Illinois. Land cannot be taken pending an appeal, without a tender of the amount found due. Mitchell v. Ill., etc., Coal Co., 68 Ill. 286. But see, Townsend v. Chicago & Alton R. R., 91 Ill. 545.

lowa. The Legislature has no power to authorize the taking of land before payment has been made. Henry v. Dubuque & Pac. R. R., 10 Iowa, 540; Peterson v. Ferryby, 30 Iowa, 327.

Kansas. A similar provision exists in the constitution of Kansas. Chambers v. Cincinnati, etc., R. R., 10 Am. & Eng. R. R. Cas. 378.

Kentucky. And in that of Kentucky.

Maine. In Maine it has been held that the Legislature has the power to authorize the temporary taking of land without payment, where such taking

is preliminary to acquisition of title. Nichols v. Somerset & Kennebec R. R., 43 Me. 356.

Maryland. In Maryland damages may be assessed after land is taken. Compton . Susquehanna R. R., 3 Bland Ch. 386.

Minnesota. In Minnesota entry may be had upon depositing amount of award. Nor. Pac. R. R. v. St. Paul, Minn. & Man. R. R., 1 Am. & Eng. R. R. Cas. 12; Weir v. St. Paul, etc., R. R., 18 Minn. 155.

Mississippi. In Mississippi payment must first be made. Thompson v. Grand Gulf R. R., 3 How. (Miss.) 240.

Missouri. A similar provision exists in the constitution of Missouri. Nebraska. In Nebraska entry may be had upon depositing amount of award. Ray v. Atchison, etc., R. R., 4 Neb. 439.

New Hampshire.-In New Hampshire it has been held that the Legislature has the power to authorize the taking of land, and regulate the manner of proceeding. In re Mount Washington R. R., 35 N. H. 134.

New York.--In New York it is held that the R. R. Co. have a right to proceed during the pendency of an appeal, upon the deposit of the amount found due. In re New York Central R. R., 60 N. Y. 116. See also Blodgett v. Utica & B. R. R., 64 Barb. 580.

Nevada. In Nevada compensation must first be made.

North Carolina.-Land may be taken before compensation is made. Raleigh & Gaston R. R. v. Davis, 2 Dev. & Bat. Law (N. C.) 451; McIntire v. Western R. R., 67 N. C. 278.

Oregon. Compensation must first be made, except when the property is appropriated by the State. Chambers v. Cincinnati, etc., R. R., 1 Am. & Eng. R. R. Cas. 378.

Pennsylvania-Land may be taken after a bond approved by the court is filed. Dimmick v. Brodhead, 75 Pa. St. 464; Harrisburg v. Crangle, 3 W. & S. (Pa.) 460; Wadhams v. Lackawanna R. R., 42 Pa. St. 303.

South Carolina.-Compensation may be made subsequently to entry. State *. Dawson, 3 Hill, 100.

Wisconsin.-Compensation must first be made. Kennedy v. Mil. & St. P. R. R., 22 Wis. 581; Bohlman v. Green Bay & Lake Pepin R. R., 30 Wis. 105.

When Constitutional Provision is Not Express.-The constitutions of all the States prohibit the taking of private property by virtue of the power of eminent domain, without making due compensation. Unless, however, the constitutional provision be express, the compensation need not be prepaid where the land owner has a sufficient existing remedy. Johnson v. Joliet, etc., C. R. R., 23 Ill. 202; Townsend v. Chicago & A. R. R., 91 Ill. 545; Haverhill, Bridge Prop'rs v. County Comm'ers, 103 Mass. 120; Simms v. Memphis C. & L. R. R., 12 Heisk. 621; Bonaparte v. C. & A. R. R., Bald. 205; Bloodgood v. Mohawk & H. R. R., 14 Wend. 51; s. c., 18 Wend. 9; Fox v. West. Pac. R. R., 31 Cal. 538; Raleigh & G. R. R. v. Davis, 2 Del. & B. 451; Comm. v. Pitts. & C. R. R., 58 Pa. St. 26; Danville, H. & W. R. R. v. Comm., 73 Pa. St. 29; Lehigh Valley R. R. v. McFarlan, 4 Stew. (N. J.), 706; Hatch . Vermont Cent. R. R., 25 Vt. 49; New Alb. & S. R. Co. v. Connelly, 7 Md. 32; Jeffersonville, M. & I. R. R. v. Daugherty, 40 Ind. 33; Prather v. Jeffersonville, M. & I. R. R., 52 Ind. 18.

See further upon the general question: 1 Am. & Eng. R. R. Cas. 5; 3 Am. & Eng. R. R. Cas. 223; Redman v. Phil., M., & M. R. R., 33 N. J. Eq. 165; 8. c., 1 Am. & Eng. R. R. Cas. 1; Nor. Pac. R. R. v. St. Paul, M. & M. Ry. Co., 1 Am. & Eng. R. R. Cas. 12; Nor. Pac. R. R. v. Barnesville & M. R. R., 1 Am. & Eng. R. R. Cas. 8; Chambers v. Cincinnati, etc., R. R., 10 Am. & Eng. R. R. Cas. 376; St. Louis, etc., R. R. v. Kames, note, 10 Am. & Eng. R. R. Cas. 43; 2 Am. & Eng. R. R. Cas. 460.

What Amount of Land Can Be Appropriated.-In Chic. & West. Ind. R. R. v. Dunbar, 100 Ill. 110; s. c., 5 Am. & Eng. R. R. Cas. 253, it is held that a corporation can only condemn such land as is necessary for the use of the road; and that this necessity need not be made certain before condemnation. See also Bowman v. Venice and Carondelet R. R., 102 Ill. 459; N. Y. Cent. R. R. v. M. G. L. Co., 63 N. Y. 326; Cleveland R. R. Co. v. Speer, 56 Pa. St. 325; Phila. R. R. v. Williams, 54 Pa. St. 103; Protzman v. Ind. R. R., 9 Ind. 467; Knight v. C. R. R., 9 La. Ann. 284; New Orleans R. R. v. Second Municipality, 1 La. Ann. 128; T. & W. R. R. v. Daniels, 16 Ohio St. 390; Stacey v. Vt. Cent. R. R., 27 Vt. 39; Hill v. Western Vt. R. R., 32 Vt. 68; Rensselaer, etc., R. R. v. Davis, 43 N. Y. 127; Lance's App., 55 Pa. St. 16. In Worcester v. West Ry. Co., 4 Met. (Mass) 564, it was held that the company may take land to the limit of the grant, and in Babcock v. Western R. R., it was held that in case of necessity they may take more. But courts cannot extend or limit the appropriation. U. S. v. Harris, 1 Sumner, 21; Nelson v. Flemming, 36 Ind. 30; N. O. & Pac. Ry. v. Gay, 32 La Ann. 471.

A railroad company has the right to appropriate only such part of the timber standing upon land taken as is necessary to construct and repair the road and its appurtenances; the property in the remaining timber vests with the original owner. Preston v. Dubuque, etc., R. R., 11 Iowa, 15. May also remove timber that interferes with running of cars, to provide safe and convenient use.

Where a statute provides that a railroad company may receive, from owners of land over which its road is to pass, grants of rights of way, not exceeding a specified width, and one of such owners grants such a right without specifying the width thereof, the company is authorized to appropriate and use an area across the lands of such owner, of any width, in its discretion not exceeding that specified by the statute. Ind., Peru, etc. Ry. Co., v. Rayl, 69 Ind. 424.

If the character of the land and timber requires that a company condemn 200 instead of 100 feet, this will sometimes be permitted. Wis. Cent. R. R. v. Cornell Univ., 49 Wis. 162; s. c., 10 Am. & Eng. R. R. Cas. 108. But the burden of proof is upon the company to prove this necessary. S. C., 52 Wis. 537; R. & S. R. R. v. Davis, 43 N. Y. 137; In re N. Y. Cent. R. R., 66 N. Y. 407.

First Appropriation Does Not Exhaust the Power.-If necessary, when land has once been condemned, the company may proceed to condemn more land than was at first required. Cent. Branch U. Pac. R. R. v. Atch., Top., etc., R. R., 26 Kan. 669. The law does not require a railroad company to acquire, by condemnation, all the lands necessary for the construction and operation of its road at the same time. It may increase its facilities as the business of the country may require. Fisher v. Chic. & Springfield R. R., (Illinois, 1882), 10 Am. & Eng. R. R., 14; Chic., B. & Q. R. R. v. Wilson, 17 Ill. 123; Selden v. Del. & Hud. Canal Co., 29 N. Y. 634; Farnham v. Del. & Hud. Canal Co., 61 Pa. St. 265: Prather v. Jeffersonville M. & I. R. R., 52 Ind. 16; Phil., W. & B. R. R. v. Williams, 54 Pa. St. 103; In re So. Car. R. R. v. Blake, 9 Rich. (S. C.) 228; In re N. Y. Cent. R. R., 67 Barb. 426; Childs v. Cent. R. R., 33 N. J. Law, 323; Beck v. United N. J. R. R. & Canal Cos., 39 N. J. Law, 45.

What Title is Acquired-Grants in Fee Simple. It is within the power of the legislature to grant a fee simple in lands appropriated under the right of eminent domain. This grant has been made to railroads. Challiss v. Atch., Top. & Santa Fe R. R., 16 Kan. 117; Ind., Peru, etc., Ry. Co. v. Rayl, 69 Ind. 424. In New York, Pennsylvania, Indiana and Ohio, and probably elsewhere, it is common to authorize the taking of lands in fee for canal purposes. Roxford v. Knight, 11 N. Y. 308; Haldeman v. Penn. R. R., 50 Pa. St. 425; Robinson v. West. Pa. R. R., 72 Pa. St. 316; Wyoming Coal &

Trans. Co. v. Price, 81 Pa. St. 156; Waterworks Co. of Indianapolis v. Burkhart, 41 Ind. 364; Mason v. Lake Erie, E. & T. W. R. R., 1 Fed. Rep. 712; Malone v. Toledo, 34 Ohio St. 541. But see N. O. & Pac. Ry. v. Gay, 32 La. Ann. 471.

This power may also be delegated. Varaigne v. Fox, 2 Blatch. C. Ct. 95; Dingley v. Boston, 100 Mass. 544; Cotton v. Boom Co., 22 Minn. 372; Chesapeake Canal Co. v. Union Bk., 4 Cranch C. Ct. 75; State v. Evans, 3 Ill. 208; Wyoming Coal Co. v. Price, 81 Pa. St. 156; Nelson v. Fleming, 56 Ind.

310.

It may also be inferred from the language of an act. State v. Rives, 5 Iredell (N. Car.) 297; Wash. Cemetery v. Pros. Pk. & Coney Island R. R., 68 N. Y. 591.

Under special statute a fee simple may be acquired. Ind., Peru, etc., R. R. v. Rayl, 69 Ind. 424.

Effect of Particular Words or Phrases.-Use of the words "fee simple" is not essential to a grant of the right to take an entire interest. Brooklyn Park Commrs. v. Armstrong, 45 N. Y. 234; Washington Cemetery v. Prospect Park & C. I. Ry. Co., 68 N. Y. 591; Rexford v. Knight, 11 N. Y. 308; Watson v. N. Y. Cent. R. R., 47 N. Y. 157; Dingley v. Boston, 100 Mass. 544; Gardner v. Brookline, 127 Mass. 358; Holt v. Somerville, 127 Mass. 408; Malone v. Toledo, 34 Ohio St. 541; 28 Ohio St. 643; N. O. P. Ry. v. Gay, 31 La. Ann. 430.

Nor does it necessarily follow that the use of these or similar terms grants anything more than a base and determinable fee, limited to the purposes of the grant, and expiring when the property ceases to be used for these purposes. Hooker v. Utica & M. Turnpike Co., 12 Wend. 371; People v. White, 11 Barb. 26; Malone v. Toledo, 28 Ohio St. 643; 34 Ohio St. 541.

Where the grant is of a right to take land "for the purposes of a railroad," this conveys an easement only. Proprs. of Locks and Canals v. Nashua & L. R. R., 104 Mass. 1; Blake v. Rich, 34 N. H. 282; Eaton v. Bost., C. & M. R. R., 51 N. H. 504; Heard v. Brooklyn, 60 N. Y. 242; West P. R. R. v. Johnston, 59 Pa. St. 290; State v. Brown, 3 Dutcher, 13; Taylor v. N. Y. & L. B. R. R., 9 Vroom, 28; Quimby v. Vt. Cent. R. R., 23 Vt. 387; Troy & B. R. R. v. Potter, 42 Vt. 265; Kellogg v. Malin, 50 Mo. 496; Beach v. Miller, 51 Ill. 206; Barlow v. McKinley, 24 Iowa, 69; N. O. & Pac. Ry. v. Gay, 32 La. Ann. 471.

A provision in the charter that a company shall, on taking land, be "seized and possessed" thereof, does not of itself confer the power to acquire a fee. It is consistent with the right to acquire a lesser interest. Quimby v. Vt. Cent. R. R., 23 Vt. 387.

A "right of way" in legal meaning is a mere easement in the lands of others. Williams. West Union Ry.,50 Wis. 71.

Effect of Granting the Power to Take in Fee. The company of course acquires an absolute title. The original owner has no reversionary interest. It is therefore competent for the Legislature to devote the property so acquired to a new and different public use, and the original owner, having received compensation or having voluntarily granted the fee, cannot complain. Heard v. Brooklyn, 60 N. Y. 242; Sweet v. Buffalo, N. Y. & Phila. R. R., 13 Hun, 643; Pittsburgh, etc., R. R. v. Bruce, 10 Am. & Eng. R. R. Cas. 1; Jackson v. R. & B. R. R., 25 Vt. 150; Conn. & Pass. Rivers R. R. v. Holton, 32 Vt. 47. But see N. O. & Pac. Ry. v. Gay, 32 La. Am. 471; Blake v. Rich, 34 N. H. 285.

When Only an Easement is Acquired.-An easement or right of way in perpetuity is the usual grant. West. Pa. R. R. v. Johnston, 59 Pa. St. 290; State v. Brown, 3 Dutch. 13; Ala. & Fla. R. R. v. Burkett, 42 Ala. 83; Eaton Bost. C. & M. R. R., 51 N. H. 504; Aldrich v. Drury, 8 R. Is. 554; Kans. Cent. R. R. v. Allen, 22 Kan. 285; Heard v. Brooklyn, 66 N. Y.

v.