mined in a judicial proceeding instituted by the government for that purpose. But it is also a present absolute grant, and takes effect when the line of the road is located, from the date of the act, as against any intervening claim or settlement whatever." In the case at bar the grant took effect from the date of the approval of the plat, which was July 11, 1889. The act of March 3, 1875, grants the right of way through the public lands of the United States upon conditions. The only reservations therein are contained in section 5 of said act, as above stated. The inchoate pre-emption right of Wilkins, which did not ripen into title, does not come within. either of the above reservations. Section 4 of said act declares that, after the approval of the profile map by the secretary of the interior, "all such lands over which such right of way shall pass shall be disposed of subject to such right of way." The government of the United States had not disposed of said land within the meaning of the term "disposed," as used in the fourth section of said act, prior to October 5, 1889, the date of Daniel's homestead entry. The patent to be issued to Daniel will, by relation, take effect as of the date of his homestead entry, and no earlier.

The judgment of the district court should be reversed, and judgment entered in favor of the appellant, dismissing this action, and for costs of suit; and it is so ordered.

MORGAN and HUSTON, JJ., concur.

Land Grants to Railroads-Rights of Homestead and Pre-emption Claim. ants. See ante, St. Paul & S. C. R. Co., v. Ward, and note, pp. 325, 331. Land Grant-Location of Mining Claims in Reserved Land. In Northern Pac. R. Co., v. Sanders (C. C. A.) 49 Fed. Rep. 129, it was held that act Cong. July 2, 1864, granting land to the Northern Pacific Railroad Company to aid in the construction of its road, which creates a reserve of the odd-numbered sections of lands "not mineral," within the limits defined, "which are free from pre-emption or other claims or rights," from the time of filing a plat of the general route in the general land office, does not prevent persons taking up mining claims in the reserved lands after the filing of such map, and before the definite location of the road; and it does not avail the railroad company that the lands so located under mining claims are in fact non-mineral lands. Buttz v. Northern Pac. R. Co., 119 U. S. 55, 29 Am. & Eng. R. Cas. 455. and Denny v. Dodson, 32 Fed. Rep. 899, distinguished. 47 Fed. Rep. 604, affirmed.

State Taxation of Lands Granted by Congress.-The grant of lands to the Northern Pacific Railroad Company, under Acts July 2, 1864, was a present grant, which attached to the specific sections as they became capable of identification by the definite location of the road; and upon a report by the government surveyors that the lands surveyed are non-mineral, such lands become subject to state taxation, although the land commissioner refuses to issue patents therefor until further satisfied that the lands are in fact non-mineral. Northern Pac. R. Co. v. Wright (C. C. D. Mont.) 51 Fed. Rep. 68.

MORRIS

υ.

TOTTENHAM AND FOREST GATE R. Co.

(2 Ch. (1892) 47.)

Power to take Temporary Possession of Land-Necessary Purpose"Road"-Railroad. The authority given by section 32 of the Railways Clauses Consolidation Act 1845. to take temporary possession of land for the purpose of forming roads does not include taking for the purpose of forming a railroad. Land can only be so taken when the taking is necessary, and mere saving of expense does not constitute necessity.

THIS was a motion on the part of the plaintiffs for an interlocutory injunction in terms of the writ, viz., to restrain the defendants, the Tottenham and Forest Gate Railway Company, from proceeding on a notice to take temporary possession, under section 32 of the Railway Clauses Consolidation Act, 1845, of land of which the plaintiffs were lessees in possession. The notice was dated the 28th of December, 1891, and was to take temporary possession of the land in question "for the purpose of forming roads thereon to or from or by the side of the proposed railway during the construction of the railway.

The defendants' railway in course of construction crossed the main line of the Great Eastern Railway nearly at right angles, a short distance from the Leytonstone station. The plaintiff's land adjoined the main line. The land comprised in the notice in question was intended to be used for the construction of a branch, in the form of a quadrant of a circle, to connect the main line with the new line, for the purpose of bringing materials from places of some distance away to be used in the construction of the new railway. A small part of it had been made, and a photograph in evidence showed that it was laid with sleepers and rails, exactly like those on the main line. The following is an extract from an affidavit filed on behalf of the defendants:

"It is undoubtedly the intention of the company and their contractors to use such land for the purpose of making a temporary road thereon from the siding of the Great Eastern Railway's aforesaid goods station to the railway which the company are constructing, and no doubt materials for the construction of such railway will be carried in wagons or trucks from the said siding to the land on which such railway is being constructed, and in all probability, as is almost

invariably the case when a railway is being constructed, rails will be laid on the road when formed for such wagons or trucks to run on, and in all probability the materials so brought on to the company's property on which the railway is being constructed will be utilized not only for the purposes of such railway so far as it is near the land comprised in the said notice, but also on other parts of the site of the company's intended railway lying towards Forest Gate.' Cozens-Hardy, Q. C., and Dibdin for the plaintiffs. S. Hall, Q. C., and R. 7. Parker, for the defendants.

NORTH, J. (after saying that he would treat the notice to take the land as sufficient in its terms, and that on the evidence the defendants proposed to make what was really a branch railroad on a land, continued): Power of That being so, the owners of the land apply for an injunction and in my opinion they are entitled to restrain the trespass which the company propose to commit, if it be a trespass.

company to enter on land.

The answer of the company is that they are justified in doing what they do under the act, and that really is the question. Does the 32nd section justify their entering upon and using the plaintiffs' land to build a railway upon for the purpose of connecting for temporary purposes the main line of the Great Eastern Railway with a new railway which crosses it at right angles?

Now, the 32nd section prescribes-to read it shortly—that the company may within the period for completing the line, without any payment or deposit, enter upon any lands within the limits within which it is admitted that the present lands are-and to occupy the same so long as may be necessary for the construction or repair of that portion of the railway or of the accommodation works connected therewith hereinafter mentioned and to use the same for any of the following purposes.

Now, no one has suggested to me any reasonable construction of the phrase "that portion of the railway," and I do not know what it means. It does not refer to anything defined elsewhere in the act in any way.

The company having entered upon the land may occupy the said lands so long as may be necessary for the construction or repair of that portion of the railway or of the accommodation works connected therewith hereinafter mentioned, and use the same for any of the following purposes. Then comes this: "For the purpose of taking earth or soil by side cuttings therefrom." This branch is not intended for that. Then I will read the third next: "For the purpose of

obtaining materials therefrom for the construction or repair of the railway or such accommodation works as aforesaid. That seems to be very much in pari materia with the first. Both are as to taking materials from the land in question. Then I will go to the second: "For the purpose of depositing spoil thereon." That is not taking anything away from the land, but putting something upon it which is not there by nature; and as regards that, it appears to me if spoil is deposited thereon that is not a temporary deposit of spoil; it may be a permanent deposit. All those matters relate, therefore, to materials in connection with the land itself. It is either taking materials from the land or putting materials upon the land. Then we come to this: "For the purpose of forming roads thereon to or from or by the side of the railway. Now, although the previous words have dealt very fully with the taking of materials from and putting materials upon the land, there is no reference in terms to materials coming from any other place, except the land that is to be occupied; and the only question is whether those last words "forming roads" authorize the doing of what is proposed to get materials from or placed upon, not the land in question, but other land more or less contiguous. I do not think that such a railway as is proposed in the present case is a road within the meaning of the words as used here. That is my strong impression.

Necessary purpose.

But there is a second point also, and upon that I am against the company. The decisions which have been given upon the act show that the 16th section and the 32nd section. apply to cases in which what is proposed to be done is necessary for the purposes of the railway, not merely by reason of the language used in those two sections themselves, but on the ground of the general intendment of the act and the legislature in passing the act with reference to powers given to persons who propose to take away from owners temporarily or permanently the possession or enjoyment of land to which those owners are entitled; and, further than that, the act is to be construed as pointed out in Simpson 2. South Staffordshire Waterworks Co., 4 D. J. & S. 679. If there is any doubt with regard to the extent of the powers claimed under the act, it should be construed for the benefit of the landowner, and not in such a manner as to give to the company any power which is not most clearly and expressly defined in the statute. That being so, it is for the company to make out their case clearly, and to satisfy me on the reasonable construction of the act that their view of it is right. They have not satisfied me upon that point, having regard particularly to the cases that have been cited. Those cases seem

to me to show that what is required for justifying the proceedings of the company is that the work is necessary for the construction of the railway; and, without saying what is necessary, the decisions show that a mere saving of expense to the company, and a fortiori a mere saving of expense to the contractors for the company, is not a necessary purpose within the meaning of the act.

Then it is said that such a construction, although it may be essential and binding as to the 16th section, is not essential as to section 32. I think it was pointed out in Fenwick v. East London R. Co., Law Rep. 20 Eq. 544, (which was a case relating to the 32nd section, and not to the 16th section; but I do not think that there is any distinction between the two) that the decision was based rather upon the general intendment of the act than upon the particular wording of the section; a purpose which covers all the sections contained in it, except so far as there is anything in the act to distinguish them.

Then it is said that the phrases used in both the 31st section and the 35th section of the act show that, with regard to taking under the 30th section or the 32nd section of the act, it is not essential that the works should be necessary; it is sufficient that they should be convenient. The argument upon those sections does not convince me. The question whether it is more fitting that one piece of land or another should be taken for a purpose for which the company are authorized to use either of them may well arise as between two different pieces of land and their respective owners, while it is strictly and essentially necessary for the purposes of the company that one or other of those two pieces of land should be so used by them. The 31st and 35th sections will apply to such case, and they have their full meaning given to them by applying them to cases in which it is necessary for the company to get the use of the land from one person or another without its being essential to get it from one rather than the other of them, although the question may still be open whether it is more fit as between the two that they should take from one or the other.

Under these circumstances, I come to the conclusion as regards the 32nd section that the taking of this land is not shown to be necessary, having regard to the decisions of the act. That being so, I must grant the injunction.