The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-08-30

propriation. The space covered by the
line as located is thereby seized ana
appropriated TO the purposes OF tne
construction and operation of the rail-
road by virtue Of the pCayer OF eminsnt
domain and nothing remains to Ne
done except to compensate the owner
After the act of Location by the COM
pany the owner or the company may
proceed at once to secure an ascertain
mcnt of damages Until such act
neither can do so; for no right TO dam
ages vests In or acCrucs To the owner
until there has been an appropriation
of his property by the corporation:
Davis VS.. Railway co, ia Pa. BON
FIXED UPON \ LOCATION.
The engineers of the railroad COM
nny made preliminary entry upon
the lands of Annette Reynolds in the
fall of 1900 and ran several expert
mental lines, and finally selected one
as a located line They marked upon
the ground and upon the map, ana
reported 1t to the board of directors.
The directors, at a meeting held on
November 80, 1900, adopted II a. the
location of their proposed railroad.
They thus made a fixed and 6ehnlte
location OF their road and fastened
serVitudc upon the property afected
thereby and So took it from the owner
and appropriated it to the use of the
corporation. II thus acquired con-
ditional title as agairst Miss Reynolds
which may be made an absolute one
upon making compensation 10 hef or
tender of security. and acquire com
pletc title as against the plaintin water
company. under the authority above
cited. We are therefore of opinion that
The scranton and Northeastern Rail
road company has the right to build
it's road over the route selected ana
adoptca by its board Of directors on
November % 1900. ana that the plain
tiff has no standing to enioin II from 50
doing.
However the railroad company. at
the time Of the issuing of th" inJunc-
ton, was undertaking to huild It's ROAD
over the lands of the aintiH, along
a different. or at least slighty modi-
fled. line from that adopted by tts
board of directors. The change was
made by the engineers and Vas never
adopted by the company. We do not
think the engineers had authority to
make any change The company by IFS
board of directors may haN" authority
to change the location of the rout"
from time to time before the cnnstruc-
tion of the road, but We are not now
called upon to decide that, as they have
not undertaken to do so. We can ma
no authority to SubStantiate the propo-
sition that the engineers may make
Slight" or "immateriar' changes in
their own discretion To quote again
from the language of Mr.. Justice Will
fans: AN engineer may make eN-
plorati i'm advance of Il location, or
he may remark the line ur adjust the
grades after the adoptiin of the 'oca-
tion. but an engineer alone cannot
locate a railroad SO as to give title 10
the company that employs him. lie Is
not the company The right of e1ni-
nent domain does not reside in him
The exercise of the right of eminent
domain is in derogation of private
rights and the authority must he
strictly construed,
The adoption Of the line 10y the board
OF directors gave to the company Ger
tain rights over the lands covered by
the line as adopted. but not over any
other lands The conveyance by An
nettc Reynolds to the water company
Of the lands i'm question vested title in
the water company to the lanes d"-
scribcd i'm the deed. subject to the
rights already acquired by the railroad
company. to build their road over n
certain dcfnit" route. 1t had not at
the time of the conveyance, nor has II
vet, acquired any right to build it's road
over any other lands than those COW
cred by its regularly adopted ana lo-
Gated route. and We are of opinion that
il should be restrained from doing so
The location by the railroad company
was prior to the existence of the water
company, and of course, prior to the
appropriation by the water company
Of the lands in question To- "A public
use. but treating the water company
"a a mere land owner only. We fail tC
see any right in the railroad company
20 take any of its lands, even after
rendering security, which have never
been legally appropriated for the route
Of the railroad and as a. have al
ready said, there have been no lands
legally appropriated by the RAILROAD
company except such as are covered
by the original location ana adoption
by the board of directors. II follows
according to our views above expressed
that The Scranton and Northeastern
Railroad company has the right to con
struct its road on the route adopted bI
it's hoard of directors. but ii has no
the right To COnstruC, ii upon tn" mudi
fed route.
We then come To- the question of ten
der of security for the damages |
security should be rendered to tn,
plaintiff, the present owner of TIM
property. the railroad company shout,
he restrained from entering until tn
damages are secured, If security shoul'
he rendered 10 Miss Reynolds. TN
owner at the time of the locati0n. thel
she would have the right To restrain
the entry until her damages are -
cured but as she Is not a party To thi
proceeding we would not be oalle
upon to restrain the building of IN
railroad over the original I'm" unll
security is rendered to hel.
A. QUESTION OF DAMAGES
~ II the railroad company should ;"
'Hit to construct its road over the legal
ay located line the damages would h
payable to Miss Reynolds Tn" deCiS
Aons are clear to that effect. While tn
title is not complete as against tn
land owner until damages are cithe
paid or secured yet. i'm the language q
Strong, j., in Wadhams ", Il. Il. co
43 Pa. $40: "Where the railroad ha
been located the land has been take
and Appropriated for the public u.s.
the right Of the landowner to sue "a
his damages is complete, and he ma
recover all which may be caused b
the location, and by the subsequer
construction. lie can have but one AZ
tiOn. The damages cannot be severed
and security for one is therefore seCul
ity for all: Neal vs.. The Pittsburg
and Connellsville Railroad company,
Grants Cases 49," This is reiterate
in Reale Vs. The Pennsylvania Raj
road company, Sc Pa 500 where it wa
held that the location of the road h
the company was an appropriation
the land and after the assessment
10, tl,.y, .tsl,t