of cases, among which may be cited McClinton v. Pittsburg etc. R'y Co., 66 Pa. St. 404; Wheeling etc. R'y Co. v. Warrell, 122 Pa. St. 613; Allegheny V. R'y Co. v. Colwell, decided at the October term, 1888; Philadelphia etc. R'y Co. v. Cooper, 105 Pa. St. 239. In all the cases, however, in which the entry was made with the knowledge and consent of the owner, the action has been treated as equitable in its character. The corporation, having been permitted to enter in advance of the ascertainment of damages, did not thereby lose its right to proceed in the usual manner to secure their adjustment through the courts, and the action of ejectment has been sustained as a means of quickening the action of the corporation in this regard. While the owner has not parted with his title by his own conveyance, or had it divested by proceedings under the statute, he has parted with the possession under circumstances, and permitted expenditures upon and use of the property, of such a character as to make it inequitable for him to resume the possession, or to defeat the right of the corporation to proceed under the statute, and add to its lawful possession a lawful title, by virtue of compliance with its provisions.

In Allegheny V. R'y Co. v. Colwell, decided at the October term, 1888, it was said: "But as Colwell was at least passively derelict in knowingly permitting the railroad company to occupy and put its improvements on his land, we agree that it would be inequitable to allow the judgment to work a forfeiture of those improvements"; and execution was accordingly stayed upon the judgment, to enable the railroad company to proceed under the statute, and have the damages assessed. There was in that case, and there is in this, no contract for the sale of the right of way capable of enforcement by means of a conditional verdict in ejectment; but the equities growing out of the entry by permission, the expenditure of money, and the construction through the premises of a continuous line of railroad, so that resumption of possession by the land-owner would interrupt the traffic of the entire line, required us to send him to the tribunal which the law provides, for the ascertainment of the damages to which he was entitled. The effect of the permissive entry is thus made the same as if a formal contract had been entered into, by which the land-owner had agreed to put the corporation into possession, and accept as compensation such sum as might be awarded to him by proceedings under the general law. This protects the corporation in the expenditures made in conse

quence of its lawful entry on the land, while it secures to the owner the full measure of compensation to which he is entitled, under the law, for the entry and appropriation by the corporation.

In the case now before us, the railroad company entered under a formal release of the right of way by the widow, who was in actual possession and the holder of an estate for life in the land, and with the knowledge and acquiescence of the guardian of the plaintiff's intestate. Its entry was in no sense a trespass, therefore, but was rightful, subject only to an ascertainment of the damages done to the remainderman. These should be assessed as of the date of the entry. It is urged that the damages, when assessed, do not belong to the plaintiffs below, and that their action must fail for that reason, and the damages be awarded to the administrator of the intestate, under whoin they claim as heirs at law. But the damages were not assessed in the lifetime of the decedent, nor were any steps taken to that end. Nothing was done, therefore, that could divest his title, and substitute its value in money therefor. That title descended, consequently, to his heirs at law, who now stand in his stead, and are clothed with his rights. Davis v. Titusville etc. R'y Co., 114 Pa. St. 308, and kindred cases, are therefore not applicable.

Judgment affirmed, but stay of execution thereon ordered for ninety days, to enable the railroad company to proceed under the statute, and procure the condemnation of the land and the assessment of damages as of the date of the original entry; the costs to be paid by the railroad company when taxed.

THE PRINCIPAL CASE is distinguished from the case of Kiel v. Chartiers V. G. Co., 131 Pa. St. 466, post p. 823, in which case the corporation was lia. ble in trespass for entering upon plaintiff's land without payment of damages for the taking thereof, or offer of security for such payment.

EMINENT DOMAIN RAILROAD COMPANIES -TRESPASS. A railroad com. pany which enters upon land with the consent of the owner or mortgagor, and, without objection from any one, constructs its road for fifteen years without acquiring title or paying damages, does not thereby become a trespasser: St. Johnsbury etc. R. R. Co. v. Willard, 61 Vt. 134; 15 Am. St. Rep. 887; Lafferty v. Schuylkill etc. R. R. Co., 124 Pa. St. 297; 10 Am.. St. Rep. 587. But one is not estopped to claim compensation for a right of way by permitting a railroad company to construct its road over his land, and operate it without interference: Thornton v. Sheffield etc. R. R. Co., 84 Ala. 109; 5 Am. St. Rep. 337. And he may even maintain an action of ejectment against the company, where he has not been offered compensation for his land: Terre Haute etc. R. R. Co. v. Rodel, 87 Ind. 128; 46 Am. Rep. 164. Compare Louisville etc. R'y Co. v. Soltweddle, 116 Ind. 257; 9 Am. St. Rep. 852; McAulay v. Western etc. R. R. Co., 33 Vt. 311; 78 Am. Dec. 627.

AM. ST. REP., VOL. XVII. - 52

REESE V. PENNSYLVANIA RAILROAD COMPANY.

131 PENNSYLVANIA STATE 422] V

RAILROADS REGULATIONS-FARES AND TICKETS. - Railroad companies may make reasonable regulations, not only as to the amount of fares, but as to the time, place, and mode of payment. They may refuse to carry without the previous procurement of a ticket, or they may charge an additional or higher rate of fare to those who do not procure tickets before entering the cars, provided passengers are given a convenient place and opportunity to buy tickets.

RAILROADS-REGULATIONS - FARES AND TICKETS. A regulation requiring passengers who board a train without a ticket, after having had an opportunity to procure one, to pay a small sum in excess of the regular fare, such excess to be refunded at any regular ticket-office on the road, upon presentation of a check therefor, given by the conductor, is valid, and not unreasonable nor oppressive, nor open to the objection that the excess thus imposed is a part of the fare, and makes it higher than the rate allowed by law. RAILROADS REGULATIONS- FARES AND TICKETS. - A regulation requiring that a sum in excess of the regular fare shall be collected from passengers who board a train without having procured a ticket, after having had an opportunity to do so, such excess to be refunded at any regular ticketoffice on the road, upon presentation of a check given therefor by the conductor, but excepting from its operation passengers getting on trains at stations where no tickets are sold, or where, on account of an excessive rush of business, it is impossible to issue the refunding check, and providing that in such cases the collection of the excess shall be omitted, is valid, and not unreasonable, oppressive, or partial.

TRESPASS to recover damages for ejectment from a passenger train. Plaintiff boarded defendant's train at a station where tickets were sold, without having bought one, although he had time and opportunity to do so. The law under which defendant was incorporated provides that "in the transportation of passengers, no charge shall be made to exceed three cents per mile for through passengers, and three and one half cents per mile for way passengers." When the conductor asked plaintiff for his ticket, the latter said he had none, and tendered fourteen cents, the regular fare between the stations of his journey. The conductor refused to accept the sum tendered, and demanded an additional sum of ten cents, or twenty-four cents altogether. This sum the plaintiff refused to pay, and so was put off the train at the next station. The conductor in so doing acted under a regulation of the defendant company, which will appear hereafter. The public were given notice of this regulation by means of printed cards posted at ticket-offices, and two such notices were posted at the station where plaintiff boarded the train. The conductor

testified that before demanding the twenty-four cents of plaintiff, he explained to him the regulation, and that under it a duplex check would be given him, redeemable at any ticketoffice along the road. This plaintiff denied, and also that he had any notice of the regulation by means of the posted public notice, although he admitted that he had heard of and read of the regulation in the newspapers. The regulation mentioned, and the rules given conductors for the enforcement thereof, are as follows:

"An excess of ten cents will be charged on all fares paid on trains. Passengers paying such fares will be furnished, by the conductors, with a memorandum, upon presentation of which at any ticket-office of the Pennsylvania railroad division the excess of ten cents will be refunded. Passengers are respectfully requested to purchase tickets at the regular ticketoffices of the company, as far as practicable."

"The following rules will, until further notice, govern the issue of duplex tickets on the Pittsburgh division.

"The collection of excess must be omitted as follows:"1. When passage is taken from non-ticket stations, whether the destination is a ticket station, or a non-ticket station.

"2. When passage is taken from a ticket station the office of which being closed by authority, regardless of the passenger's destination.

"3. When, on account of a large crowd, it is impossible to issue duplex tickets without losing cash fares, or leaving tickets in the hands of passengers.

"4. In cases of small children traveling alone, and of sick, aged, or infirm persons who have not money enough to pay the excess.

"5. When excursion tickets are issued.

66 6. Omit the collection of excess in connection with New York and Chicago limited express extra fares; and, also, when ordered, collections are made on second-class and emigrant tickets.

"In all cases, except as above noted, conductors must courteously enforce the collection of excess, as prescribed in circular 160; and require the persons who refuse to pay it to leave the train, and if necessary, without undue force or violence, eject them at the next station, as provided in the book of rules."

Under the instructions of the court, there was a verdict for plaintiff, and judgment having been entered on the verdict, defendant appeals.

George B. Gordon, John H. Hampton, and William Scott, for the appellant.

A. C. Johnston and Levi Bird Duff, for the appellee.

MITCHELL, J. The right of railroad companies to make reasonable regulations, not only as to the amounts of fares, but as to the time, place, and mode of payment, is unquestionable. This right includes the right to refuse altogether to carry without the previous procurement of a ticket: Lake Shore etc. R'y Co. v. Greenwood, 79 Pa. St. 373. That case arose upon a special regulation as to the carriage of passengers upon freight trains; but there is no appreciable distinction between it and a general regulation as to all passengers. Both rest on the commonlaw principle that requires payment or tender as an indispensable preliminary to holding a carrier liable for refusal to carry, and on the manifest and necessary convenience of business, where the number of passengers is liable to be large and the time for serving them short.

So, too, the authorities are uniform that companies may charge an additional or higher rate of fare to those who do not purchase tickets before entering the cars: Crocker v. New London etc. R. R. Co., 24 Conn. 249; Swan v. Manchester etc. R. R. Co., 132 Mass. 116; 42 Am. Rep. 432; Hilliard v. Goold, 34 N. H. 241; 66 Am. Dec. 765; Stephen v. Smith, 29 Vt. 160; State v. Goold, 53 Me. 279; State v. Chovin, 7 Iowa, 208; Du Laurans v. First Div. etc. R. R. Co., 15 Minn. 49; 2 Am. Rep. 102; State v. Hungerford, 39 Minn. 6; 34 Am. & Eng. R. R. Cas. 265, and note; Chicago etc. R. R. Co. v. Parks, 18 Ill. 460; 68 Am. Dec. 562; Pullman Palace Car Co. v. Reed, 75 Ill. 130; 20 Am. Rep. 232; Cincinnati etc. R. R. Co. v. Skillman, 39 Ohio, 451; Forsee v. Alabama etc. R. R. Co., 63 Miss. 67; 56 Am. Rep. 801. And it may be noted, in response to one of the most urgently pressed arguments of the defendant in error, that the reasons almost uniformly given in support of this long line of decisions include the furthering of the honest, orderly, and convenient conduct by the railroad company of its own business.

The regulation in question in the present case is not in itself unreasonable or oppressive. In regard to the traveler, it is scarcely just ground of complaint that he has to present his refunding ticket at the end of his journey, instead of getting an ordinary ticket at the start. The inconvenience, if any, is the result of his own default. With reference to the other passengers, and still more to the railroad company, the regulation