pany may lay as many sidings and turnouts as are fairly requisite to accommodate its business, nor that the company is entrusted with the location of its road and branches, keeping within the limits of its charter. Locating its road between certain points, or locating a branch to a certain point for accommodation of the public, is altogether different from locating a branch or siding merely to accommodate a private person, natural or artificial, for private gain.

Here is the naked fact of running a siding, as it is called, across the plaintiffs' lot, against their will, for private gain, to a rollingmill. This siding is not for public use. Its terminus is on private property. If the defendant may lawfully construct it, it may arbitrarily run its sidings to every private place it chooses, doing irreparable mischief to owners of property who are in the way. In Reading, the plaintiffs' dwelling and business are destroyed today, in laying a siding to an iron-mill; to-morrow another citizen may be ruined by a siding to an ice-house; another by one to a tannery, and so on indefinitely. Other companies have like powers as this defendant. In Philadelphia dwellings may be demolished in running sidings to sugar refineries, shoe factories, shops, and salesrooms, and other private places at the arbitrary discretion of the several boards of directors. Outside of the cities, no man's farm will be secure from a siding to any stone-quarry or other private place, whose owner may be favored by the judgment of a board of directors. I am not convinced that it was the legislative intent to grant such rights, and do not believe they have been granted. But if within the words of the statutes or charters, it seems to me a gross violation of the citizen's right, that his property should be violently taken for private use.

The statutes relating to lateral railroads make provisions for owners of mines, mills, and the like, to secure rights of way, and under these, the owners of private property have some protection against the cupidity or interested judgment of their neighbors. If the Reading Iron Works made a connection with the defendant's road, and is entitled to cross the plaintiff's lot at all, it should be by proceeding under those statutes, instead of an abuse of the rights granted to defendant.

Although indicating the grounds of dissent, I am not unmindful that the decree settles the rights of the parties, and that I have taken an erroneous view of the facts and law of this case.

The foregoing case is interesting as raising a question upon which there are few or no direct authorities. A review of the principles which seem applicable to it, however, and of the cases in which analogous questions have been raised and settled, seems desirable.

The principle on which the right of eminent domain conferred upon railroad companies rests, is the necessary subordination of private to public interests. A railroad is supposed, and rightly too, by its very nature to confer such inestimable benefits upon the people at large as to warrant its being

deemed a public measure. The land, therefore, taken by it is deemed to be taken for public use. Swan v. Williams, 2 Mech. 427; Bonaparte v. C. & A. R. R. Co., 1 Bald. (U. S. C. C.) 205; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294; Whiteman v. Wilm. & Susq. R. R. Co., 2 Harring. (Del.) 514; Buffalo, Bayou Brazos, etc., R. R. Co. v. Ferris, 26 Tex. 588; Wier v. St. Paul, Stillwater, etc., R. R. Co. 18 Minn. 155; Buffalo & N. Y. R. R. Co. v. Brainard, 9 N. Y. 100; Bloodgood v. Mohawk & Hudson R. R. Co., 14 Wend. 52; Beekman v. S. & S. R. R. Co. 3 Paige, 45; Aldridge v. Tuscumbia C. & D. R. R. Co. 2 St. & P. 199; Davis v. Same, 4, 16, 421; B. & O. R. R. Co. v. Vanness, 4 Cranch. C. C. 595; Zanesville C. & C. R. R. Co. v. Chappell Rice, 383; Contra Costa R. R. Co. v. Moss, 23 Cal. 324; San Fa. & S. R. R. Co. v. Caldwell, 31 Cal. 367; Concord R. R. Co. v. Greeley, 17 N. H. 47.

In pursuance of this theory, the courts have been reasonably liberal in their construction of railway charters, and railroad companies will be deemed entitled by virtue of their general powers to enter upon and appropriate lands for all purposes reasonably necessary to the carrying on of their business.

They may therefore take ground for passenger stations and approaches hereto, for engine houses, for warehouses, intended to receive and store goods which have been or are about to be transported. Rensselaer & S. R. R. Co, v. Davis, 43 N. Y. 137; N. Y. & H. R. R. Co. v. Kip. 46 N. Y. 546, 67 N. Y. 227; N. Y. Cent. & H. R. R. R. Co. In re 77 N. Y. 248; Mansfield C. & L. M. R. R. Co. v. Clark, 23 Mich. 519; Reed v. Louisville Bridge Co., 8 Bush. 69; Hamilton v. Annapolis & E. R. R. Co., 1 Md. 533; Susq. v. C. W. & Q. R. Co., 4 Ohio St. 308; Weir v. St. Paul, S. & T. F. R. R. Co., 18 Minn. 155; Nashville & C. R. R. Co. v. Cowarden, 11 Humph. 348; Protzman v. Ind. & C. R. R. Co., 9 Ind. 467; South Carolina R. R. Co. v. Blake, 9 Rich. 228; Hannibal & St. J. R. R. Co. v. Meeder, 49 Mo. 165; Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. St. 23; Graham v. C. & N. J. C. R. R. Co., 36 Md. 463.

For cattle yards for stock transported on the railroad, In re N. Y. Cent. R. R. Co., 63 N. Y. 326.

For shops to repair cars and engines used on the road. Chicago, B. & Q. R. R. Co. v. Wilson, 17 Ill. 123; Low v. Galena & C. U. R. R. Co., 18 III. 324; Hannibal & St. J. R. R. Co. v. Meeder, 49 Mo. 165; Virginia & T. R. R. Co. v. Elliott, 5 Nev. 358; State v. Mansfield, 3 Zab. 1 N. J. 510; Southern Pac. R. R. v. Raymond, 53 Cal. 223.

For turnouts and side tracks, incidental to the road's business. Toledo & W. R. R. Co. v. Daniels, 16 Ohio St. 390; Phila., W. & B. R. R. Co. v. Williams, 54 Pa. St. 103; Cleveland & P. R. R. Co. v. Speer, 56 Pa. St. 325. For springs to supply water tanks. Strohecker v. Ala. & C. R. R. Co., 42 Ga. 509.

For a dumping place to deposit waste earth. Lodge v. Phila., W. & B. R. R. Co., 8 Phila. 345.

For the accommodation of additional tracks on a whole line of railway. In re N. Y. Cent. R. R. Co., 67 Barb. 426.

For the purpose of obtaining sufficient space on the side of the road to erect a telegraph wire. Prather v. Jeffersonville, M. & I. R. R. Co., 52 Ind.

16.

But for purposes not directly connected with the business of the company no such power is reasonably to be inferred.

Hence a railroad company has been held to derive from the general terms of its charter no power to build a lateral railroad (Balt. & H. Turnpike Co. v. Union R. R. Co., 35 Md. 224), nor to take land for speculation, nor to prevent competition, nor to aid collateral enterprises remotely connected with the road, nor to facilitate prospective business not reasonably to be expected. Rensselaer & S. R. R. Co. v. Davis, 43 N. Y. 137.

Nor for dwellings of workmen employed by the road. State v. Mansfield,

3 Zab. 510; Nashville & C. R. R. Co. v. Cowarden, 11 Humph. 348; Eldridge *. Smith, 34 Vt. 484.

Nor for shops to manufacture cars. Walford v. C., St. P. & F. du Lac R. R. 14 Wis. 575; Eldridge v. Smith, 34 Vt. 484; N. Y. & E. H. R. R. Co. v. Kip, 46 N. Y. 546; Vt. & Can. Ry. Co. v. Vt. Cent. Ry. Co., 34 Vt. 2.

Nor for the purpose of obtaining gravel to construct the road. N. Y. & C. R. R. Co. v. Gunnison, 1 Hun. 496.

Nor for a wharf. Iron R. R. Co. v. Ironton, 19 Ohio St. 299.

Nor for a temporary right of way during the building of the main track. Gray v. Liverpool & Burg. Ry., 9 Beav. 391; Currier v. Marietta & C. R. R. Co., 11 Ohio St. 228.

Reference is in every case had to what are the legitimate requirements of the company in carrying on its legitimate business. Lodge v. P., W. & B. R. R. Co. 8 Phila. 345; Chicago, B. & Q. R. R. Co. v. Wilson, 17 Ill. 123; Toledo & W. R. R. Co. v. Daniels, 16 Ohio St. 390; South C. R. R. Co., 9 Rich. 228; P., W. & B. R. R. Co. v. Williams, 54 Pa. St. 103; In re N. Y. C. Ry. Co. 67 Barb. 426; Prather v. Jeff., M. & I. R. R. Co., 52 Ind. 16; Beck v. United N. J. R. R. Co., 10 Vroom, 45.

An example of the principle discussed occurs in the case of Rensselaer & Saratoga Ry. Co. v. Davis, 43 N. Y. 137, where a railroad company, having one of the termini of its road on a navigable waterway extending into Canada, made application to acquire certain lands near said terminus, which they alleged would be needed in consequence of the increased business of the road expected to result from a ship canal which was to be cut at that point, connecting the waters already referred to with other waters. It was held, that the company was not entitled by virtue of the general powers in their charter contained to take possession of the land.

Judged by this standard, it may be seriously doubted whether the principal case was rightly decided. The bill, as pointed out by TRUNKEY, J., distinctly alleged that the road in question was to be built for the convenience of the private establishment, and it may certainly be questioned whether the affording of such accommodation was within the scope of the legitimate business of the railroad. It has indeed been held in some cases that roads may be opened from any great coal or mining field, owned by individuals, in order to accommodate them in their business, and that this is to be deemed such a public use as will warrant in their construction an exercise of the right of eminent domain. (Pecopson Road, 16 Pa. St. 15; Sherman v. Bluck, 32 Cal. 487.) But there are many authorities to the contrary. Young v. McKenzie, 3 Ga. 44; Taylor v. Porter, 4 Hill, 146; Buffalo & N. Y. R. Ř. Co. v. Brainerd, 9 N. Y. 108; Bradley v. N. Y. & H. H. R. R. Co., 21 Conn. 305; Reeves v. Treasurer of Wood Co., 8 Ohio (N. S.), 344.

The preponderance of authority seems therefore against the principal case. As to the general question whether the power of eminent domain may be exercised to take land for manufacturing establishments which, although undoubtedly useful to the public, are to be owned and run by an individual, see Cooley on Constitutional Limitations, 534. The question has generally arisen in the case of companies authorized to construct dams in a river to improve the navigation. This has generally been held to be a public measure warranting the exercise of the power of eminent domain. (Commonwealth v. Breed, 4 Peck, 463; Hazen v. Essex Co., 12 Cush. 447.) But the cases are not perfectly agreed even upon this point.

See Pittsburg, etc., R. R. Co. v. Robinson, 1 Am. & E. R. R. Cas. 468.

CHURCH

V.

THE GRAND RAPIDS AND INDIANA R. R. Co.

(70 Indiana Reports, 161.

May Term, 1880.)

An application, under section 710 of the practice act, 2 R. S. 1876, p. 289, for a writ for the assessment of damages, must be in writing; and such application constitutes a complaint, to which objection may be made as in ordinary adversary proceedings.

In an action for such writ, against a railroad company, for an entry upon lands claimed by the plaintiff by inheritance since such entry, a failure to allege in the complaint that the ancestor was the owner at the time of the entry is fatal; as is also a failure, in such an action by any one, to refer therein to the law authorizing the entry.

Query.-Can the heir maintain such an action, in any case?

FROM the Lagrange Circuit Court.

A. Ellison, J. D. Ferrall and J. S. Drake, for appellant.
A. Zollars and F. T. Zollars, for appellee.

NIBLACK, J.-This was a proceeding by Jacob M. Church, to recover compensation and damages from the Grand Rapids and Indiana R. R. Co., for the construction and maintenance of its line of road over his lands.

The complaint alleged that the plaintiff was the owner of two tracts of land, describing them, lying in the county of Lagrange, and that the defendant, in June, 1867, entered upon and constructed its railroad track over said lands, thereby appropriating and converting to its own use a part of such lands, also describing the part so appropriated and converted; that said tracts of land were worth in the aggregate twelve thousand dollars, and had been greatly damaged by the construction of said railroad over the same, because of such railroad running anglingly across such lands, thereby leaving the remaining parts in an irregular form; because said railroad cut off a long and narrow strip from the east side of one of said tracts, which was in a high state of cultivation, thereby involving the building of a large amount of additional fencing; and because he had been prevented from using all of his said lands since March 1st, 1874, when he, the plaintiff, inherited the same from his father, Ira Church, as the defendant was then and since had been in the possession and use of the portions of said lands so appropriated and converted by it; that, by reason of the appropriation and conversion of such portions of said lands, the plaintiff had been damaged in the sum of two thousand dollars. Wherefore the plaintiff demanded judgment, and that appraisers might be appointed to appraise and assess the damages which had accrued to him, and all other proper relief.

The parties appeared to the action below, and without objection

the court appointed three qualified persons as commissioners to appraise the damages alleged to have been sustained by the plaintiff These commissioners afterward made a report, assessing the plaintiff's damages at the sum of fifteen hundred dollars. To this report the defendant filed twenty-one exceptions. Some of these exceptions were struck out by the court, others of them were withdrawn, and issue was joined upon the rest.

The cause was then sent to a jury for trial, the result being a general verdict for the plaintiff, assessing his damages at six hundred dollars, accompanied with answers to a great number of special interrogatories respectively submitted to the jury.

The defendant moved in arrest of the judgment and the motion was sustained. Judgment was thereupon rendered in favor of the defendant.

Error is assigned upon the decision of the court arresting the judgment, and that raises the question of the sufficiency of the complaint.

It was held by this court, in the case of McMahon v. The Cincinnati and Chicago Short-Line R. R. Co., 5 Ind. 413, that so much of the act entitled "An act to provide for the incorporation of railroad companies," approved May 11th, 1852, 1 R. S. 1876, p. 696, as relates to the assessment of damages against railroad companies for the taking of land for the construction of their roads, and that part of article 41 of the code, 2 R. S. 1876, p. 281, relating to the same subject must be construed in pari materia and treated as one

enactment.

The construction thus given in that case has been acquiesced in and adhered to as a rule of practice in this State.

The complaint clearly did not bring this case within the provisions of sec. 15 of the act of May 11th, 1852, supra. It did not allege such proceedings by the railroad company as were necessary to give the court below jurisdiction to appoint appraisers under that section. We must, therefore, look to the provisions of article 41 of the code, above referred to, to enable us to judge of the sufficiency of the complaint.

That article of the code provides that, "When any person, corporation, or company, design to construct a canal, or railroad or turnpike, graded, McAdamized, or plank road, or bridge, or establish a ferry, as a work of public utility, although for private profit, being authorized by law to take real property therefor, such person, corporation or company, may have a writ," formerly known as the writ of ad quod damnum, for the assessment of damages; that such person, corporation, or company may file an application for such writ in the circuit court, or in the office of the clerk of that court in vacation, setting forth the precise description of the real estate desired to be taken, the names of the persons interested therein, making them defendants, and the purposes to which the