A regulation requiring conductors to collect a | is not in itself unreasonable or oppressive. In rehigher rate of fare from passengers not having gard to the traveller it is scarcely just ground of tickets than is charged for tickets between the complaint that he has to present his refunding same points is not illegal, provided the maximum rate allowed to be collected under the charter is not exceeded 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. O'Byrne v. Allegheny Valley R. R., 9 Pitts. L. J. With reference to the other passengers, and still 117. Forsee ». Ala. G. S. R. R., 63 Miss. 66. Waterman Corp., § 75. Wilsey v. L. & N. R. R., 83 Ky. 511. Smith v. P. F. W. & C. R. R., 23 Ohio, 10. L. S. & M. S. R. R. v. Greenwood, 79 Pa. 373. more to the railroad company, the regulation is conducive to the rapid, orderly, and convenient dispatch of the conductor's part in the collection of fares, and thus leaving him free for the performance of his other duties in connection with the stops at stations, the entrance and exit of passengers, and the general supervision of the safety and comfort of those under his care. If, therefore, the company may refuse to carry at all without a ticket, it may fairly refuse, under the far less inconvenient alternative to the traveller of putting him to the trouble of going to an office to get his excess refunded. If the company may charge those failing to get a ticket an January 20, 1890. THE COURT. The right additional price, and keep it, certainly they may of railroad companies to make reasonable regula- charge such price and refund it. And as the tions, not only as to the amount of fares, but as regulation is not in itself unreasonable or oppresto the time, place, and mode of payment, is un-sive, or needlessly inconvenient to the traveller, questionable. This right includes the right to its validity, upon general principles and on aurefuse altogether to carry without the previous thority, would seem to be beyond question. procurement of a ticket. (Lake Shore, etc., These views were conceded by the learned Railway Co. v. Greenwood, 79 Pa. 373.) That Judge below, and are not seriously questioned by case arose upon a special regulation as to the car-counsel here. But the decision was based upon riage of passengers upon freight trains, but there the view that the extra ten cents imposed by this is no appreciable distinction between it and a regulation is a part of the fare, and makes it general regulation as to all passengers. Both higher than the rate allowed by the Act of inrest on the common-law principle that requires corporation of the company. The language of 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. R. R. Co., 24 Conn. 249; Swan v. M. & L. R. R. Co., 132 Mass. 116; Hilliard v. Goold, 34 N. H. 241; Stephen v. Smith, 29 Vt. 160; State v. Goold, 53 Me. 279; State v. Chovin, 7 Iowa, 208; Du Laurans v. R. R. Co., 15 Minn. 49; State v. Hungerford, 39 Id. 6 (and S. C. 34 Am. & Eng. R. R. Cases, 265, and note); Chicago R. R. Co. v. Parks, 18 Ills. 460; Pullman Co. v. Reed, 75 Id. 130; R. R. Co. v. Skillman, 39 Ohio St. 451; Forsee v. Ala. R. R. Co., 63 Miss. 67.) 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 ... the Act is "in the transportation of passengers, no charge shall be made to exceed . .. three and one-half cents per mile for way passengers.” As the distance from East Liberty Station to the Union Depot in Pittsburgh is four and a half miles, and the regular fare fourteen cents, it is admitted that the extra ten cents is in excess of the charter rate, if it is a "charge for transportation" within the meaning of the Act. Should it be so regarded? Charge is a word of very general and varied use. Webster gives it thirteen different meanings, none of which however expresses the exact sense in which it is used in this charter. The great dictionary of the Philological Society, now in course of publication, gives it twenty separate principal definitions, besides a nearly equal number of subordinate variations of meaning. Of these definitions one (10 b) is "the price required or demanded for service rendered, or (less usually) for goods supplied," and this expresses accurately the sense of the word in the present case. The essence of the meaning is that it is something required, exacted, or taken from the traveller as compensation for the service rendered, and, of course, something taken permanently, not taken temporarily and Oct. '89, 55. October 29, 1889. returned. The purpose of the restriction in the charter is the regulation of the amount of fares, not of the mode of collection, the protection of Oliver v. Pittsburgh, Virginia and Charlesthe traveller from excessive demands, not interton Railway Co. ference with the time, place, or mode of payment. These are mere administrative details which depend on varying circumstances, and are therefore left to the ordinary course of business management. We fail to see anything in the present regulation which can properly be treated as an excessive charge within the prohibition of the charter. Nor is there any force in the objection that this regulation is unreasonable. It is said not to be general, fair, and impartial, because it provides that as to passengers getting on the train at stations where there is no ticket office, etc., or on trains where on account of the excessive rush of business it is impossible to issue the refunding check, the collection of the excess shall be omitted. The objection overlooks the necessary qualifications to the validity of such a regulation. All the cases are agreed that the regulation would be unreasonable and therefore void, unless the carrier should give the passenger a convenient place and opportunity to buy his ticket before entering the train. This part of the regulation merely puts in express words a necessary exception which the law would otherwise imply. So as to the excessive rush of business. Reasonableness depends on circumstances. To collect the extra amount and issue return checks to as many passengers as the conductor could reach in time, and let all others go free entirely, would be much more unreasonable than to treat all alike and dispense with the regulation for the time being. Necessity modifies the application of all rules, and there is nothing unreasonable in requiring the conductor to exercise sufficient foresight to see whether he can perform the prescribed duty in the available time, and investing him with the discretion to omit it altogether, if in his judgment, he cannot perform it fully. No authorities precisely in point have been found upon either side. The cases cited by the defendant in error, from Kentucky and Ohio, are widely distinguishable, as they were cases of absolute charge beyond the charter limit, without any provision for return of the excess to the traveller. But on well-settled principles we are of opinion that the regulation is reasonable in itself, and not in violation of the restriction in the Act of incorporation. The defendant's first point should therefore have been affirmed. Judgment reversed. Opinion by MITCHELL, J. STERRETT, J., dissented. H. C. O. Eminent domain Exercise of- Damages— Railroad-Entry on land without permission or previously securing damages-Knowledge by land-owner-Estoppel-Right to damages. Corporations clothed with the right of eminent domain may enter upon land, either upon giving security for the payment of the damages when ascertained, and thus acquiring title without the consent of the owner by virtue of the statute, or, in pursuance of a contract with the owner, in which case their title rests on that contract; or they may enter without complyowner, in which case they acquire no title, but are ing with the law, or making a contract with the simple trespassers, liable to an action of trespass or ejectment. When an owner of land consents to an entry thereon by a corporation, and sees the expenditure of large sums of money in the construction of a line of railroad on said land, part of an extension of a line previously built and in operation, such owner may not treat such entry as a trespass, but he does not thereby lose his right to compensation, and can proceed under the statute to have his damages assessed as well after as before the construction of the road, or by an action of ejectment. When a railroad company enters upon land, and without compensation to the owner, or proceedings to condemn, puts its improvements thereon, with his knowledge, he is not estopped from claiming damages therefor and maintaining ejectment to recover the same; but on recovering judgment in ejectment execution will be stayed, on payment of costs, for a time sufficient for the company to condemn the land. When a railroad company enters upon land under a formal release of the right of way by a widow, who for life in the land, and with the knowledge and acwas in actual possession and the holder of an estate quiescence of the guardian of a minor remainderman, such entry is not a trespass but is a rightful entry, subject only to an ascertainment of the damages done to the remainderman, which damages should be assessed as of the date of the entry. When in the above case the remainderman dies, while still a minor, and the damages for the taking of the land had not been assessed in his lifetime, nor any steps taken to that end, the title of said remainderman has never been divested, and therefore descended to his heirs-at-law, who would be the proper parties to bring an action of ejectment, or under the statute for the ascertainment and recovery of the said damages. Appeal of the Pittsburgh, Virginia and Charleston Railway Company, defendant, from a judgment of the Common Pleas No. 1, of Allegheny County, in an action of ejectment brought by George Oliver, William Oliver, Isabella Õliver, Mary A. Oliver, Charles G. Erwin, and Jane S. his wife, formerly Jane S. Oliver, Seward Oliver, Florence M. Oliver, and Grace D. Oliver against the said railway company, to re cover a strip of land occupied by the defendant's tracks, and used as part of its right of way. On the trial, before STOWE, P. J., the facts as proved, and not disputed, were as follows: The title to the land was vested in Robert Oliver, who died in 1868, intestate, leaving a widow, Martha Oliver, and one son, Robert Albert Oliver, a minor, of whose estate Abdiel McClure was guardian. In 1870, when the construction of defendant's railroad was projected, Martha Oliver, the widow, executed and delivered to the defendant a deed or agreement for the right of way. Abdiel McClure, the guardian of the minor, lived in the vicinity of the Olivers, on the line of the railroad, and not only knew of its construction, but was one of its active promoters. In the fall of 1871 the road was constructed through the Oliver property, and has since been operated thereon. In 1882 Robert Albert Oliver died, a minor, his mother being previously deceased, leaving as his next of kin and heirs the plaintiffs, his cousins. No bond was ever filed by the defendant company for appropriation of the land in controversy, nor was any claim ever made against it for damages by the guardian or legal representatives of Robert Albert Oliver. This action was brought in 1887. Upon the above facts, the plaintiffs requested the Court to charge, inter alia : "That, under the law and evidence, the verdict of the jury should be for the plaintiffs." Affirmed. The defendant requested the Court to charge, inter alia, as follows:— (5) Under all the evidence in the case, the plaintiffs are not entitled to recover in this action. Refused. The Court gave binding instructions to the jury to find for the plaintiffs. Verdict accordingly, and judgment thereon; whereupon the defendant took this appeal, assigning for error, the answers to the above points, and the binding instructions of the Court. William Scott (John H. Hampton and George January 20, 1890. THE COURT. Corporations clothed with the right of eminent domain enter upon the land of private owners in one of the following ways: They enter upon giving security for the payment of the damages to be done by their entry when ascertained, and thereby acquire. title without regard to the consent of the owner by virtue of the statute. They enter in pursuance of a bargain with or leave given by the owner and their title rests on their bargain or contract, and not on the statute. Or they may enter without compliance with the law, or treaty with the owner; in which case they acquire no title, but are trespassers, and liable to an action of trespass or ejectment at the election of the owner. The owner may be unable to agree with the corporation as to the injury sustained by him, and the statutory proceeding may have to be proceeded with until a final adjudication can be had, but the corporation may enter meantime and proceed with the construction of their improvements, and the owner cannot interfere. (4) If the jury believe, from the evidence, that the defendant company, in or about 1871, located and constructed its railroad upon the If, however, he treats with the corporation and land described in the writ in this case when the they enter under permission from him, he stands same was owned by the widow and child of on the same ground when contracting with a corRobert Oliver, deceased, viz: Martha A. Oliver poration as when contracting with an individual. and Robert A. Oliver, a minor, of whose estate He is bound by his agreements in the same manAbdiel McClure was guardian; that said railroad ner and estopped by the same equitable considwas so located and constructed under a release to erations in the one case as in the other. If he defendant from said Martha A. Oliver, and with- consents to the entry by the corporation and sees out objection by said Robert A. Oliver or Abdiel the expenditure of large sums of money made McClure, his guardian, and as so located and con- upon the ground in the construction of a line of structed was operated by defendant thereafter railroad, part of an extended line over which the until after the death of said Robert A. Oliver, corporation is engaged in carrying passengers and that said Robert A. Oliver died intes- and freight as a common carrier, he ought not to tate in 1882, and the plaintiffs in this case be allowed to treat their entry as a trespass. He claim to recover as his heirs-at-law, then the right does not, however, lose his right to compensation, to damages for the location and construction of said and can proceed under the statute to have his railroad (if any were sustained) vested in said damages assessed as well after as before the conRobert A. Oliver, and was enforceable by him, or struction of the road. Whether he should be his guardian or administrator, if not released or permitted to proceed also by action of ejectment otherwise barred, and said land descended to might, if now presented for the first time, require plaintiffs subject to and charged with an easement careful consideration. But we must regard this therein in favor of the defendant for the opera-question as already settled in favor of the right tion of its railroad, and plaintiffs are not entitled to maintain such action by a series of cases, to recover. Refused. among which may be cited McClinton v. The Railway Co. (66 Pa. 404); The W., P. & B. | possession, and the holder of an estate for life in Railroad Co. v. Warrell (122 Id. 613); Rail- the land, and with the knowledge and acquiesroad Co. v. Colwell, decided at the October Term, cence of the guardian of the plaintiffs' intestate. 1888; Phila., Newtown & N. Y. Railroad Co. Its entry was in no sense a trespass, therefore, v. Cooper (105 Pa. 239). In all these cases, but was rightful, subject only to an ascertainment however, in which the entry was made with the of the damages done to the remainderman— knowledge and consent of the owner, the action these should be assessed as of the date of the has been treated as equitable in its character. entry. The corporation having been permitted to enter It is urged that the damages when assessed do in advance of the ascertainment of damages did not belong to the plaintiffs below, and that their not thereby lose its right to proceed in the usual action must fail for that reason, and the damages manner to secure their adjustment through the be awarded to the administrator of the intestate courts, and the action of ejectment has been sus-under whom they claim as heirs-at-law. tained as a means of quickening the action of the the damages were not assessed in the lifetime of corporation in this regard. While the owner has the decedent nor were any steps taken to that not parted with his title by his own conveyance, end. Nothing was done, therefore, that could or had it divested by proceedings under the stat- divest his title and substitute its value in money ute, he has parted with the possession under cir- therefor. That title descended consequently to cumstances, and permitted expenditures upon his heirs-at-law, who now stand in his stead and and use of the property, of such a character as are clothed with his rights. Davis v. The Railto make it inequitable for him to resume the pos- road Company (114 Pa. St. 308) and kindred session, or to defeat the right of the corporation cases are therefore not applicable. to proceed under the statute, and add to its lawful possession a lawful title by virtue of compliance with its provisions. In Colwell v. The Railroad Company, supra, 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 But 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. Opinion by WILLIAMS, J. the railroad company to proceed under the statute Oct. '89, 256, 257, and 258. C. K. Z. November 8, 1889. R. Co. Knipkamp v. Same. Railroads - Location of Dwelling-houses— General Railroad Law of February 19, 1849, § 10. or The Act of February 19, 1849, § 10 (P. L. 83), prohibiting the location of a railroad "through any dwelling-house in the occupancy of the owner owners thereof without his, her, or their consent," will be construed to prevent the occupation of any land which is essential to the enjoyment of a dwellinghouse occupied as aforesaid, but not to prevent the occupation of grounds which are merely ornamental and pleasant in its surroundings. and have the damages assessed. There was in Lyle v. McKeesport and Belle Vernon R. 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 landowner would interrupt the traffic of the entire line, require us to send him to the tribunal which the law provides for the ascertainment of the damages to which he is 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 A. was the owner of a lot, in a borough, forty feet protects the corporation in the expenditures made wide and ninety-six feet deep, backing upon a sixteen feet wide alley. Upon the front of the lot was a in consequence of its lawful entry on the land, dwelling-house sixteen feet wide and thirty-two feet while it secures to the owner the full measure of long, with a wing at the rear seven feet long and compensation to which he is entitled under the three feet wide. In the rear of the lot were several law for the entry and appropriation by the corpo-out-buildings. A railroad company appropriated to ration. 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 its use a strip of land sixteen feet wide and forty feet long, adjoining the alley, moved some of the outbuildings back upon the lot, and gave bond for the damages caused thereby. All access to the property by the alley was prevented. A. thereupon filed a bill against the railroad company for an injunction to restrain the construction of the road, claiming that such construction was prohibited by the terms of the Act of February 19, 1849, § 10: an alley sixteen feet wide. Upon this lot there is a dwelling-house twelve feet back from Ruth Street, and three feet from the easterly line of the lot. It is sixteen feet wide and thirty-two feet in length, with a wing attached to the westerly side of the rear of it, seven feet in length and three feet in width. Back of the dwelling-house are several small outbuildings, to wit, a coalappellant has appropriated for its railroad a strip of land sixteen feet wide and forty feet long, adAppeals of the McKeesport and Belle Vernon joining the alley, moved the outbuildings in upon Railroad Company, defendant, from a decree of the lot, and given bond for the damages caused the Common Pleas No. 1 of Allegheny County. thereby. It may be conceded that the location Bills in equity, wherein Andrew Lyle and of the railroad is an injury to this property, but Catharine his wife, in right of said Catharine, it does not follow that it is in violation of the Otto Pfenninghaus, and Henry Knipkamp, guar-prohibitive clause in the Act of February 19, dian et al., were respectively the complainants, 1849, to which reference has already been made. and the McKeesport and Belle Vernon Railroad The learned Master says: "It is possibly true Company defendant, for injunctions to restrain the that the amount of land taken, and the removal company defendant from constructing its road of the buildings, would not in itself interfere with over certain premises owned by the complain-the reasonable enjoyment of the dwelling, so as to bring the case within the prohibitive portion of the Act. In other words, the Master is of the opinion that if the lot were simply curtailed by the appropriation made, sufficient would still remain to accommodate the buildings located upon it." He says further, that "access to the buildings and to the lot itself by means of the alley in the rear, is prevented by the appropriation for the purposes intended, and while it is true that plaintiffs could use the buildings for the purposes for which they were used prior to the location of the railroad by approaching them from the street in front across the open side lot, yet it would be at the substantial destruction of the lot itself, cutting up the lot, destroying the grass and flowers." Held, that the amount of land taken, the removal and relocation of the out-buildings, and the deprivation of access to the premises from the alley did not prevent the reasonable use and enjoyment of the dwelling-house so as to bring the case within the prohibition of the statute, and that therefore an injunc-house, cow-stable, chicken-house, and privy. The tion should not be granted. ants. Answers were filed and the case referred to N. S. Williams, Esq., as Examiner and Master, before whom the facts appeared as set forth in the opinion of the Supreme Court. The Master reported that the complainants were entitled to injunctions as prayed for. Exceptions filed to the report were dismissed by the Court and injunctions entered as prayed for. Whereupon the railroad company took these appeals, assigning for error the above action of the Court. James H. Reed (P. C. Knox and E. P. Douglass with him), for appellant. A. J. Barton (L. C. Barton with him), for appellees. Under the provisions of the Act of February 19, 1849, § 10 (P. L. 83), the injunctions were properly entered. Swift & Given's Appeal, 111 Pa. 516. 9 LYLE v. R. R. Co. We can readily see that access to the lot by means of the alley was a convenience to the owners and added to its value; but we cannot assent to the conclusion that an entrance from the front along the westerly line of the lot, for the carriage. of coal and other supplies, and for the necessary uses of a family, would destroy it. It might reduce the size of a grass-plot, or require the removal of a flower-bed, but these are not necessary to the enjoyment of the house as a dwelling. They are generally regarded as desirable adjuncts to a home, but their existence in attractive form, usually, if not always, depends on the will and effort of the owner, or occupant of the premises. The law regards that which is essential to the It is alleged that the McKeesport and Belle enjoyment of the dwelling, and not that which is Vernon Railroad Company, in locating its road merely ornamental and pleasant in its surroundthrough the borough of Reynoldstown, in Alle-ings. The location of a railroad across a lot on gheny County, has exceeded its powers, and disregarded this limitation. January 20, 1890. THE COURT. In the grant to railroad companies of the right of eminent domain, there is a limitation, the nature and extent of which is the subject of this controversy. It virtually prohibits the location of a railroad "through any dwelling-house in the occupancy of the owner or owners thereof, without his, her, or their consent." The appellees are the owners of a lot forty feet wide, fronting on Ruth Street, in said borough, and extending from said street ninety-six feet to which the owner has his dwelling-house, or upon grounds which constitute part of a valuable country-seat, is not in violation of the statute. (Swift and Given's Appeal, 111 Pa. 516; Damon's Appeal, 119 Pa. 287.) In determining what is |