purposes of making and maintaining all necessary repairs, improvements, and fences, and to insure speed and safety in the transit of trains over said road. And in order to securely fence in the track of said railroad, and properly maintain the fencing as required by law, it is necessary to have sufficient space and room for the erection and repairs thereof and for the necessary repairs of said road, and to prevent the injury and destruction of the fencing by fires communicated by and from locomotives passing over said road, to erect and maintain said fencing, on both sides of the track, a distance of not less than twenty-nine feet from the center of said railroad track. The track of said road was constructed over and upon the center of said right of way through said real estate, where it still remains." And "the defendants say, that in order to insure dispatch and safety in the transaction of the business of said railroad, the companies aforesaid owning and operating the same have ever since, to wit since 1853, and as soon after the road was completed as said improvements were needed and could be conveniently made, used the telegraph, having a telegraph line, instruments, and operators at all the principal stations of said road, whereby the business thereof is greatly facilitated and the interest of the traveling and shipping public greatly subserved; that the trains thereon are, and have been ever since 1853, run by telegraph, which is essential in order to secure the proper speed and safety of trains. In order to secure such telegraph facilities, the said first named railroad company in 1854, entered into an agreement with the defendant, the Western Union Telegraph Company, whereby said telegraph company, in consideration that said railroad company would furnish the right of way for telegraph poles and lines along said road over the right of way of said railroad company, agreed that it would construct and keep in repair a telegraph line along said road, and furnish one telegraph wire for the exclusive use of said railroad company. Said telegraph line was constructed on the east side of said railroad track, the telegraph poles being planted at a distance of, to-wit twenty feet therefrom, and they were so planted over said real estate, and so used without objection on the part of said Reason W. Prather until the change thereof hereinafter mentioned. And defendants further say that the United States Telegraph Company in the year, to-wit 1856, by and with the consent of said railroad company constructed and operated a telegraph line along the west side of said railroad track, at a distance of twenty feet from the center of said railroad track, on the lands, to-wit since 1869, all without objection on the part of said Prather. The poles of said line on the east side of said track were of a length and height necessary, and no more, to protect the telegraph wires from injuries and obstructions, but they were of a length and height that when thrown down by winds and storms or otherwise, in the direction of said railroad track, that they would

and did fall upon and across said track, thus endangering the lives of the traveling public, and obsructing and delaying the business of the road. It therefore became necessary, in order to avoid such dangers and delays, to set the telegraph poles a distance from the railroad track sufficient to avoid the recurrence of such casualties. After the consolidation as aforesaid of said two railroad companies, said Jeffersonville, Madison, and Indianapolis Railroad Company renewed said contract and agreement with said telegraph company, and it was in repairing said telegraph line over the real estate described in the complaint that the acts complained of were done, the defendants, other than said telegraph company, acting as the agents and employés of said telegraph company to do and perform said work and not otherwise. And no act was done other than was necessary to clear the way for and erect and maintain said telegraph line over said real estate, and said telegraph poles were planted where they now stand, on the right of way of said railroad company, over said real estate a distance of twenty-nine feet from the center of said railroad track. And defendants aver that said poles were planted at said distance from said track by the order and direction of said railroad company, in order as it was necessary so to do, to prevent the obstruction of said road, and the accidents and damages incident thereto of the falling or blowing down of said poles by winds and storms, and the poles were of a length, and not less than that if thrown in the direction of the railroad track they would not reach it, and it was necessary to have said poles of such length in order to protect the telegraph wires from injuries and obstructions. It is averred that no record was made or kept of said appropriation, or of the quantity or location of the land appropriated, or if any was made the same has been destroyed, and cannot be found, or the contents of it be ascertained."

The fourth paragraph of appellees' answer does not differ materially from the preceding paragraph, in so far as the general averment of facts are concerned, but only as to the allegations in regard to the manner and extent of the appropriation by the railroad company of the right of way for its line of railroad. In this regard, the allegations of the fourth paragraph of answer were in substances as follows:

"And in the month of June, 1851, said railroad company, then constructing said railroad as aforesaid, entered upon, located, and constructed said railroad upon and over the real estate described in the complaint, which was then the property of said Reason W. Prather, and so continued until his death. And said Prather made no claim or demand whatever for damages or compensation for said. appropriation of said property within two years thereafter, nor did he thereafter make any such claim or demand. Said real estate is situated between Jeffersonville and Columbus, Indiana, and at the time when said appropriation was made as aforesaid, said Reason W.

Prather was a person of sound mind, over the age of twenty-one years, and resided and continued to reside on said real estate described in said complaint until this action was commenced, and no agreement was ever had or attempted to be made between said parties for compensation and damages sustained by Prather for and on account of said appropriation, nor was any application ever made by either party to any justice of the peace of said county or any other officer or authority for a jury or arbitrators to assess said Prather's damages and compensation aforesaid. The defendants say that the width of the right of way of said railroad over said real estate was and is sixty feet by virtue of said location and construction of said road and said charter and amendments, and said. company thereby acquired a road and right of way over said real estate sixty feet wide-the track of the road was constructed on the center thereof, where it still remains."

In each of the paragraphs of the appellees' answer and upon the appellants' demurrers thereto, for the alleged want of sufficient facts therein, questions are presented which manifestly depend for their proper decision upon the construction to be placed upon the rights, privileges and franchises conferred upon the appellee, the railroad company, under the laws of this state, which constituted the charter of the Jeffersonville Railroad Company. These questions may be briefly stated as follows:

1. What is the width of the right of way, acquired by the Jeffersonville Railroad Company?

2. What estate did the company acquire in its right of way? Was it an estate in fee simple, or an easement merely? And,

3. If the estate was a mere easement, could the company itself, or by contract with its codefendant, lawfully erect telegraph poles within the width of such easement?

The Jeffersonville Railroad Company was incorporated under the corporate name of "The Ohio and Indianapolis Railroad Company," by an act approved January 20, 1846, Local Laws of 1846, p. 153. Of this act, we will set out in this connection so much as has any bearing upon the question for decision in this case, in substance as follows:

Sections 14 and 15 of the original charter (Local Laws, 1843, pages 156 and 157):

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Sect. 14. That the president and directors of said company shall be, and they are hereby invested with all rights and powers necessary for the construction and repair of a railroad from the town of Jeffersonville near the falls of the Ohio to the town of Columbus in the county of Bartholomew, not exceeding sixty feet wide, with as many sets of tracks as the president and directors may deem necessary: and that they may cause to be made, or contract with others for making said railroad, or any part of it; and they, their agents, or those with whom they may contract for making any

part of the same, or their agents, may enter upon, and use, and excavate any land which may be wanted for the site of said road, or the erection of warehouses or other works necessary to said road, or for any other purpose necessary or useful in the construction of or repairs of said road or its works, and that they may build bridges, provided the same do not obstruct the navigation on navigable streams, may fix scales and weights, may lay rails, may take and use any earth, timber, gravel, stone, or other materials that may be wanted for the construction or repair of said road or any part of its works, and may make or construct all works whatsoever which may be necessary and expedient in order to the proper completion of said road.

"Sec. 15. The president and directors of said company, or a majority of them, or any person or persons authorized by a majority of them, may agree with the owner or owners of any land, earth, timber, gravel, stone, or other materials, or any improvements that may be wanted for the construction or repair of any of said road or any of their works for the purchase or use and occupation of the same, and if they cannot agree, and if the owner or owners of them be a femme covert under age, non compos mentis, or out of the county in which the property wanted may lie, when such land or material shall be wanted, application may be made to any justice of the peace in the county where such land or material shall lie, who shall thereupon issue his warrant, under his hand and seal, directed to the sheriff of said county, requiring him to summon a jury of twenty inhabitants of said county, not related or in any wise interested, to meet on the land, or near the other property or material to be valued, on a day named in said warrant, not less than ten or more than twenty days after the issuing of the same; and if, at said time and place, any of said jurors summoned do not attend, the said sheriff shall summon immediately as many jurors as may be necessary with the jurors in attendance to furnish a panel of twenty jurors in attendance, and from them each party, its, his, or her, or their agent-if either be not present in person or by agent, then the sheriff for it, him, or her-may strike off four jurors, and the remaining shall act as the jury of inquest of damages; and before they act as such the said sheriff shall administer to each juror an oath or affirmation, as the case may be, that he will justly and impartially value the damages which the owner or owners will sustain by the use or occupation of the land, materials, or other property required by the company, and the jury estimating such damages shall take into the estimate the benefit resulting to the owner or owners from the construction of the said railroad through, along, or over the property of said owner or owners, but only in extinguishment of the claim for damages; and the jury shall reduce their inquisition to writing, and shall sign and seal the same, and it shall then be returned by the said sheriff to the clerk of the circuit court

of his county, and by such clerk filed in his office, and shall be confirmed by the circuit court of said county at its next session, if not sufficient cause to the contrary be shown, and when confirmed, shall be recorded by said clerk at the expense of said company; but if set aside for good cause shown, the said court shall direct another inquisition to be taken, in the same manner as above prescribed, and such inquisition shall describe the property taken, or the bounds of the land condemned, and the quantity or duration of the interest of the owner or owners in the same, valued for the company; and such valuation, when paid or tendered to the owner or owners of said property, or his, or her, or their legal representative, shall entitle the said company to the estate and the interest in the same thus valued, as fully as if it had been conveyed by the owner or owners of the same, and the valuation, if not received when tendered, may at any time thereafter be received from the company, without cost by the owner or owners, his, her, or their legal representative or representatives."

On the 8th day of February, 1848, an act became a law, without the approval of the Governor, amendatory of the aforesaid Act of January 20, 1846, Local Laws of 1848, p. 479. The third section of this act of 1848 is as follows:

"Sec. 3. For the purpose of constructing the work authorized by this act and the act to which this is amendatory, said company shall have and enjoy all the powers and rights conferred upon the State, and be subject to all the liabilities on her imposed by an act entitled "An Act to provide for a general system of internal improvements, approved January 27, 1836, and shall have all the rights, privileges and franchises granted to certain associations by an act entitled 'An Act to provide for the continuance of the construction of all or any part of the public works of this State by private companies, and for abolishing the Board of Internal Improvements, and the offices of Fund Commissioner and Chief Engineer, approved January 28, 1842.'"

On the 15th day of January, 1849, another act was approved amendatory of the charter of the Ohio and Indianapolis Railroad Company, and changing its corporate name to the "Jeffersonville Railroad Company." Of this act we set out the following section:

"Sec. 1. Be it enacted by the General Assembly of the State of Indiana, That the name and style of The Ohio and Indianapolis Railroad Company' be and the same is changed, and said company shall hereafter be known by the name and style of The Jeffersonville Railroad Company,' and by said new name shall have and possess all the rights, privileges, and franchises granted, and be subject to all the liabilities imposed by an act to incorporate The Ohio and Indianapolis Railroad,' approved 20th January, 1846, as such rights, privileges, franchises and liabilities would have existed had the name and style of said company not been changed."