entire tracts of land through which the road passes need not be given, but only the part taken and the lines and fences crossed.1

§ 119. Quality of land-Improvements. —Land may be described in quality as barren or fertile, town land or farm land, woodland or cultivated, hillside or bottom, and the character should be set forth. In describing town land taken, it is not necessary to show, under the head of quality, that it was arable, meadow, or otherwise. It is sufficient to say that it was used as a lumber-yard. Maps should show the improvements on the land taken, or through which the road passes.*

§ 120. Exemption of dwelling-houses from condemnation - Dwelling-house defined. A dwelling-house is, of itself, no more exempt from condemnation for public uses than any other property. The legislature may properly provide that public improvements shall not take any dwelling-house or other building. A dwelling-house would not include a garden, orchard, or curtilage. A billiard-saloon attached to a hotel is within the exemption. The exemption is not violated by passing near a dwelling-house, but on land of another. One proprietor could not have control over the property of his neighbor, and prevent his giving his consent or having a railroad on his land, if he so desired, although the railroad was in fact within the prohibited limits from the house of complainant. The statute cannot be evaded by erecting a shanty in the line of the

1 The State v. Hopping, 18 N. J. L. 423.

2 O'Hara v. Pennsylvania R. R., 25 Pa. 445; Zack v. Pennsylvania R. R., 25 Pa. 394.

3 Pennsylvania R. R. v. Bruner, 55 Pa. 318.

The State v. Hopping, 18 N. J. L. 423; Potts's Appeal, 15 Pa. 414.

5 The State v. Troth, 34 N. J. L. 377; Wells v. Somerset R. R., 47 Me. 345.

6 Wells v. Somerset R. R., 47 Me. 345.

The State v. Troth, 36 N. J. L. 377.

Richmond R. R. v. Wicker, 13 Gratt. 375.

proposed improvement, and inducing negroes to live in the house. The house must be a bond fide dwelling-house, and not erected or occupied for the purpose of defeating a condemnation. The word "house" has been held to include not only a court-yard, but also office, houses, and garden, and all that is necessary to the enjoyment of the house, if within the same ambit or circuit, whether attached to the main building or not, and though purchased subsequently to the erection of the main building. Gardens attached to houses, and out-houses used in connection with houses, are included under the term "houses."' 8 Unfinished houses, and property bought for the purpose of making necessary additions, are within the protection. The rule is to be construed liberally in favor of the owner of the property.5 The test to be applied in doubtful cases is whether the field, or portion required, would pass in a conveyance of the house, as part of the appurtenances. If it would pass under the word "house," then it is within the protection of the act, and in England the owner could require the company to take the whole of the premises. The appurtenances must be necessary for the convenient use and occupation of the house, and not devoted merely to out-door amusements.7

§ 121. Exemption of gardens, yards, orchards, and manufactories from condemnation. Some statutes extend the

1 Morris v. Schallsville Branch Road, 4 Bush, 448; Carris v. Commissioners of Waterloo, 2 Hill, 443.

2 Governors of St. Thomas Hospital v. Charing Cross Rail. Co., 30 L. J. (Ch.) 395; Marson v. London Rail. Co., 37 L. J. (Ch.) 483.

3 Dakin v. London & North-Western Rail. Co., 26 L. J. (Ch.) 734; King v. Wycombe Rail. Co., 29 L. J. (Ch.) 462; Cole v. West London & Crystal Palace Co., 27 Beav. 242.

4 Alexander v. West End & Crystal Palace Co., 31 L. J. (Ch.) 500; Grosvenor v. Hampstead Junction Rail. Co., 26 L. J. (Ch.) 731.

5 Reddin v.

Metropolitan Board of Works, 31 L. J. (Ch.) 660.

Ferguson v. London Rail. Co., 32 L. J. (Ch.) 29; Grosvenor v. Hampstead Junction Rail. Co., 1 De G. & J. 446; Smith v. Martin, 2 Wms. Saund. 394.

7 Doe d. Clements v. Collins, 2 T. R. 498; Steele v. Midland Rail. Co., L. R. 1 Ch. App. 275; Pulling v. London, Chatham, etc., Rail. Co., 4 N. R. 45, 386; 33 L. J. (Ch.) 505.

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3

immunity to gardens, yards, orchards, warehouses, and manufactories. A lumber-yard would not be within the protection of the statute. A protection to a garden which had been cultivated for four years does not extend to an uncultivated portion of such garden. The garden must be actually cultivated. A field is not an orchard, although there may be fruit-trees in some part of it. Although the line of a survey runs into a tract used as an orchard, yet the laying-out would not be void unless the trees came within the survey, or the owner would be deprived of the use of them, and then the road would be invalid only as to the points encroaching. All the ground around a mill is not exempted, although such land might be used for storing logs, provided sufficient mill-yard is left, and on this question the decision of the commissioners cannot be reviewed. It is doubtful whether the owner can claim the immunity after seeking damages and claiming an increase on appeal,' especially when the point that the road would encroach was not made in the first instance. Officers laying out roads through yards or buildings exempt from condemnation will be liable in trespass."

The term "manufactory" has been the subject of construction in the English courts. Land used by an iron and tin-plate manufactory as a place of deposit for rubbish, and the scoria which came from the furnace, would be included.10 A workshop is a manufactory." Ground used by a dust-contractor for assorting dust, with an assorting

1 Stone v. Commercial Rail. Co., 9 Sim. 621; Regina v. Sheriff, 3 Eng. Rail. Cas. 396.

2 The People v. Commissioners of Highways, 57 N. Y. 549; Lansing v. Caswell, 4 Paige, 519.

3 The People v. Judges Dutchess County, 23 Wend. 360.

Snyder v. Trumpbour, 38 N. Y. 355; Snyder v. Plass, 28 N. Y. 465.

5 Snyder v. Plass, 28 N. Y. 465.

The People v. Kingman, 24 N. Y. 559.

7 Lansing v. Caswell, 4 Paige, 519.

8 Cummins v. Shields, 34 Ind. 154; Crossley v. O'Brien, 24 Ind. 325. Clapper, ex parte, 3 Hill, 458.

10 Sparrow v. Oxford R. R., 2 De G. M. & G. 94.

11 Giles v. London, Chatham & Dover R. R., 30 L. J. (Ch.) 603.

house, would not constitute a manufactory.1 Warehouses used in connection with a manufactory would be included, although separated from the manufactory by a road. The taking of a manufactory includes all the fixtures and machinery, although some of them were known as trade fixtures, which might have been removed by the lessee at the end of his term.3

The

§ 122. Variation of location and occupation. - The burden of proof is on the condemning party to show that the authorized location actually covers the land taken. The company cannot resort to extrinsic evidence to show that the land taken was intended to be taken, although not described in the location. The location as filed is conclusive, and any variation will constitute a trespass. company condemning cannot object that the description is not accurate, after they have located and occupied." If there has been error, the only way to remedy is by filing a record of the changes in the proper office. After the land has been entered upon and the road constructed, the road having been previously surveyed and staked out, the presumption is that the occupation and location are the same, especially where the stakes have been removed in constructing the road. Such a location could not be set aside for uncertainty when the location was rendered certain by the occupation.7

§ 123. Necessary materials. Materials are not always convenient to a public improvement, and hence authority may be given to take necessary materials from adjoining

1 Reddin v. Metropolitan Board of Works, 31 L. J. (Ch.) 660. Spackman v. Great Western Rail. Co., 1 Jur. (N. s.) 790.

Gibson v. Hammersmith Rail. Co., 32 L. J. (Ch.) 337; s. c., 2 Drew. & Sm. 603.

Hazen v. Boston R. R., 2 Gray, 574; Matter of New York & Boston R. R., 62 Barb. 85.

Callender v. Painesville R. R., 11 Ohio St. 516.

Vail v. Morris R. R., 21 N. J. L. 189.

Cleveland R. R. v. Prentice, 13 Ohio St. 373.

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land. The word "necessary "does not mean absolutely indispensable, or that without the use of those particular materials the work could not possibly go on. The word means needful and conducive to the object, and more convenient in the appropriation than others that might be readily selected. The materials need not all be taken from the land immediately adjacent, but may be taken where they may be easily procured. Timber need not be taken from groves in a town, when it can be taken outside more abundantly and cheaply. An authority to take materials from one portion of a road, to be used on another portion of it, will not justify a taking of materials from land not taken.3 Stone may be hewed on land not taken. The commissioners for assessing the value of materials cannot be called until after it is ascertained what materials are to be taken." The English Lands Clauses Consolidation Act contemplates the entry on land temporarily, for the purpose of taking earth or soil by side cuttings therefrom; for the purpose of depositing soil thereon; for the purpose of obtaining minerals therefrom; for the construction or repair of the railway, or such accommodation-works as aforesaid; for the purpose of forming roads thereon, to or from, or by the side of, the railway."

1 Jerome v. Ross, 7 Johns. Ch. 815.

2 Bliss v. Hosmer, 15 Ohio, 44.

3 Parsons v. Howe, 41 Me. 218.

Vermont R. R. v. Baxter, 22 Vt. 365, Redfield, J.

5 Ibid.

8 Vict., c. 20, ₫ 32.

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