January 26th, 1847, Local Laws of 1847, p. 77, the fifteenth section of which, it affirms, was repealed by the third section of the act of January 13th, 1849, which was duly accepted by it. It is insisted that the third section of the act of 1849 not only repealed the fifteenth section of the act of 1847, but that it authorized the appellant, without notice to the landowner, or an offer to purchase the right of way through his lands, to enter upon and take possession of any land required for its right of way, or the construction of its road, and that unless the owner within two years from such entry, made application in writing before some justice of the peace of the proper county for compensation, as provided in said section, it became seized of the land so taken in fee, and he waived all right to compensation.

The 18th section of the act of 1847, incorporating the appellant, provided that, when the corporation had procured its right of way as therein provided, it should be seized of the land so procured in fee. The 3d section of the act of January 13th, 1849, provided that, "In all cases where the owner of lands, stone (gravel, wood, or other material), necessary for the use and construction of said road, shall refuse to relinquish the same to the corporation, or shall refuse to accept a fair compensation therefor, it shall be lawful for the corporation, by their president, or by any superintendent, agent or engineer employed by them, to enter upon and take possession and use the same, avoiding in all cases unnecessary damage or injury to the owner or proprietor; and where the said owner may feel aggrieved or injured in consequence of such use of land or stone (or other materials), the person or persons so feeling aggrieved or injured, shall make written complaint before the nearest justice of the peace within the county where such supposed injury has been done, particularly setting forth the nature and locality of the injury, and the interests of the complainant or complainants therein. Whereupon such justice of the peace shall require the president of such company to appoint one disinterested appraiser, who shall be a citizen of the county in which such justice has jurisdiction, and who shall not be a stockholder in said company, within thirty days from the date of such requisition of the justice, and notify such justice of the name and place of residence of such appraiser; such justice of the peace shall also require the complainant or complainants to appoint one disinterested appraiser, who shall be a citizen of the county, and shall not own land within three miles of the line of said road, and such justice shall thereupon summon the appraisers so appointed to meet on a certain day and select a third disinterested appraiser, who shall also be a citizen of that county, and shall neither own stock in said corporation nor land within three miles of the line of said road, and the three appraisers so appointed, after being duly sworn by said justice to do impartial justice between the complainant or complainants and the corporation, and to

take into consideration the benefits resulting to the complainant or complainants by the construction of the road, according to the best of their judgment, shall upon actual trial and computation (view) of the supposed damages, make up their award, and report the same to such justice, who shall thereupon record the same, together with all costs, and enter his judgment and enforce his collection, in the same manner that other judgments are collected: Provided, that the complainant or complainants shall be liable to pay all costs, unless the award of the appraisers exceeds in amount the sum previously offered by the agents of the corporation as a compensation for the supposed injury; the decision and award of the appraisers so made shall be final between the parties, unless either party shall appeal," etc.

It then provides that the proceedings on appeal shall be conducted as in other cases of appeal; and then follows this proviso: "Provided, that no claim shall be recovered or paid by said corporation, unless the application therefor be made as herein provided, within two years next after the property shall have been taken possession of as aforesaid." Section 4 of this act provides, that so much of sections 13, 15, and 16 of the act of January 26, 1847, incorporating the appellant, as conflicts with section 3 of the act of January 13, 1849, shall be repealed.

We think that section 3, above recited, repeals section 15 of the act of January 26, 1847. It covers the whole subject embraced by the latter section, and is inconsistent with all its provisions, except so much of it as relates to the refusal of the land-owner to relinquish to the corporation the land required, or to accept compensation therefor, but this portion of it is, in almost the same words, contained in section 3 of the act of 1849; so much of section 16 of the act of 1847 as provides for notice to infants, insane persons, etc., may not be repealed, nor is section 14, which provides for agreements to purchase the right of way, materials, etc.

It is claimed by the appellant, that, under section 3 of the act of 1849, it had the right to enter upon and take possession of Kentucky avenue and use and occupy the same, lay its track upon it and run its cars and locomotives over without the consent of the appellees, though they had not refused, nor had an opportunity to refuse, to relinquish their right in the street to the appellant, nor refused to accept fair compensation for said street.

The question is not whether the legislature could have authorized the appellant then to take and appropriate the appellees' property, but whether by this section such authority has been given to the appellant.

That this act-which ripens the possession of the appellant, taken without consulting the owners, and it may be, without their knowledge, into a title in fee in two years-should be strictly construed. will hardly be questioned.

The appellant can only exercise this unusual and extraordinary power in cases where the law expressly confers it. The language of the section seems to be clear: "In all cases where the owner or owners of lands," etc., shall refuse to relinquish to the corporation, or shall refuse to accept a fair compensation "therefor, it shall be lawful for the corporation, by their president," etc., " to enter upon and take possession," etc., is the language of the section. The cases in which the corporation may enter upon and take possession of the land of another are clearly specified, the provisions of the section, though unusual and extraordinary, if limited to the cases specified, will neither be unusually harsh nor palpably unjust. If, under the power conferred, the corporation can only take possession of land which the owner has refused to relinquish, or for which he has refused to accept fair compensation, he cannot, without negligence on his part, lose his rights. On such cases, he would hardly fail to obtain notice of the entry and possession of the corporation.

It cannot be inferred, legally or logically, that because the law authorized the appellant to take possession of so much of another's land as might be necessary for the way of its road, on the ground that he had refused to accept fair compensation for it, it is authorized to take the land of others who have not refused, nor had an opportunity to refuse, such compensation.

It will not be pretended that, in the absence of statutory authority, the appellant could enter upon and take the possession of the land of another without his consent. Section 3 of the act of 1849, which confers all the power the appellant has in this respect, says that upon refusal of the owner to accept a fair compensation, etc., it may enter. In no other case does the law authorize an entry. No such authority can or should be implied. Mill's Eminent Domain, sec. 105; 1 Redfield Railways, 232; Edward v. The Lawrenceburg, etc., R. R. Co. 7 Ind. 711; Vail v. The Morris, etc., R. R. Co., 1 Zab. 189; Doughty v. The Somerville, etc., R. R. Co., 1 Zab. 442; The Mississippi, etc., R. R. Co. v. Rosseau, 8 Iowa, 373; Dyckman v. The Mayor, etc., 5 N. Y. 434.

In the case of The Indiana Central Ry. Co. v. Oakes, 20 Ind. 9, referred to by the appellant's counsel as supporting their views, Judge Davidson, on p. 13, says: It is, however, contended that until the plaintiffs had refused to relinquish their property to the corporation, or to accept a fair compensation therefor, the company had no authority under its charter to possess and use it; and having appropriated it without demanding such relinquishment, or offering such compensation, she was guilty of trespass. This proposition, when applied to the case before us, seems to be incorrect. The owners of the property being infants, were, for that reason, not of legal capacity to give a valid relinquishment, or to agree upon a fair compensation. And the defendants were therefore

excused from the demand and offer, which, in ordinary cases, are required by her charter.

By the clearest implication the court holds that, in a case like this, there must be such a demand and offer. Whether or not the infancy of the land-owner should be held to enlarge the power of the company, and to enable it to enter upon land which, but for such infancy, it would have no right to take, is a question not involved in this case, as the appellees are not alleged to have been infants at the time the entry was made.

The case of Swinney v. The Ft. Wayne, etc., R. R. Co. 59 Ind. 205, is referred to by the appellant as supporting its position. It seems to have been held, in this case, that it was unnecessary, in proceedings by a railroad company, under the general law of the State, to aver and prove that an effort had been made to agree with the owner for the purchase of the land proposed to be appropriated. The question arose upon an appeal from an assessment of damages, and it might well have been held that, upon appeal, the question should be considered as waived; that if the owner wished to raise such a question, he should do it by a proceeding to enjoin the company. This is not the reason assigned by the court, it is true, and it may have had no influence in the determination of the question, but if the decision means that where a statute authorizes a railroad company to institute proceedings to condemn the land of others, upon its failure to agree with the owner for the purchase of the property, it may without any effort so to agree and in disregard of the statute at once institute proceedings to condemn, we are not disposed to follow the decision. The language of the general statute upon the subject differs, in some respects, from the 3d section of the act of 1849. Under the latter we think it clear that a demand of the relinquishment of title and the offer of fair compensation are conditions precedent to the right of the appellant to enter upon and take possession of the lands of others.

Assuming that the entry of the appellant was valid, we are unable to see how the statute of limitation insisted upon could be avoided; but, holding as we do, that its entry and possession were authorized aud wrongful, it could thereby secure no right as against the appellees. Meriom v. Brown, 128 Mass. 391; Daniels v. The Chicago, etc., R. R. Co., 35 Iowa, 129; Doe v. The Manchester, etc., Ry. Co., 14 M. and W. 687; Stacey v. The Vermont, etc., R. R. Co., 27 Vt. 39.

The decision below should be affirmed.

PER CURIAM.-It is ordered that, upon the foregoing opinion, this cause be in all things affirmed, at the costs of the appellant. ELLIOT, J., having been of counsel in this case, was absent.

In the early case of Lade v. Shepherd, 2 Stra. 1004, it was decided that, although the parish repaired the public highway, yet the property of the soil was in the owner of the adjoining lands, and they could maintain tres

pass for breaking it up. To the same point is The Mayor, etc., of Northampton v. Ward, id. 1238. S. C., 1 Wils. 107. In Harrison v. Parker, 6 East, 154, it was held that where A. granted authority to B. and his heirs to build a bridge on his land, and B. covenants to keep it in repair and keep it for public use and not demand toll, still the property in the materials in the bridge continues in B., subject to the right of passage by the public, and when severed and taken away by a wrongdoer he may maintain trespass for the deportation.

In Parish, etc., v. Jacobs, it is said the owner making the dedication parts with no other right than a right of passage to the public over the land so dedicated, and may exercise all other rights of ownership not inconsistent therewith; and the appropriation made to and adopted by the public of a part of the street to one kind of passage, and of another part to another, does not deprive him of any rights, as owner of the land, which are not inconsistent with the right of passage by the public. 25 Law T. Rep. N. S. 800.

This position was severely tested in Rex v. Pratt, 4 E. & B. 460; S. C. 24 L. J. M. C. 113, in which it was held, that if a person stand on a highway (the land on both sides of which belongs to B.) and, by sending his dog into a covert adjoining puts up a pheasant, which he shoots as it flies across the road, he is guilty of trespassing on the land of B. (viz., the highway) in pursuit of game, because he is upon the highway, not merely in the exercise of his right of easement as travelling upon it, but for another and a different purpose.

And in Dovaston v. Payne, 2 H. Bl. 527, it was held that a plea of an avowry for taking cattle damage feasant that the cattle escaped from a public highway in the locus in quo, through the defect of fences, must show that they were passing on the highway when they escaped; it not being sufficient to state that being on the highway they escaped, because the property of the highway is in the owner of the soil, subject to an easement for the benefit of the public. The doctrine of this case has been repeatedly endorsed by the English courts. Stevens v. Whistler, 11 East, 51; Doe dem. Prigg v. Pearsey, 7 B. & C. 304; Berridge v. Ward, 10 C. B. N. S. 400; Queen v. Strand District Works, 4 B. & S. 548.

Where a highway is immemorial, so that positive proof cannot be given of its ownership, if the land on both sides be freehold and belong to one person, he is presumed to be the owner of the land on which the road passes; but if the land on each side belong to different persons, the presumption is that the proprietors of such soil respectively are owners of the soil, usque ad medium filum viae. Cook v. Green, 11 Price, 736; Headlem v. Hedley, Holt, N. P. 463. See White v. Hill, 14 L. J. 79, Q. B.

Under the general enclosure acts a different presumption was held to exist in King v. Hatfield, 4 A. & E. 164; King v. Edmonton, 1 M. & Rob. 124; Salisbury v. Great Northern Ry. Co., 5 C. B. N. S. 174. So of waste land on either side the presumption may be rebutted. Steele v. Pricket, 2 Stark. 463; Doe v. Pearsey, 7 B. & C. 304; Anon., Loft, 358; Grose v. West, 7 Taunt. 39; Doe v. Kemp, 7 Bing. 332.

If the land on each side be copyhold, and the road be an immemorial way, then, although the patches of land on either side are presumed to belong to the copyhold tenement on that side, yet the ownership of the soil of the road is presumed to be in the lord of the manor. All this is, however, only a presumption, which of course may be rebutted by evidence of actual ownership, or of the exercise of continued acts of ownership over the soil by some other person. Doe v. Pearsey, 7 B. & C. 304; Steel v. Prickett, 2 Stark. 463.

The general presumption applies as well to private as to public roads. "This presumption is allowed to prevail upon grounds of public convenience,