or of flowing right of way, or using the embankment of a railroad for the wall of a dam. The inconvenience of having men, teams, and cattle on the right of way is not to be tolerated, and the danger to the travelling public should be considered. The removal of turf renders the road liable to dust, which is annoying to travellers, and hence the company may promote the growth of turf; and the removal of the growth of turf by an adjoining owner would be a trespass. The railroad company may trim a hedge which encroaches on its right of way. The railroad acquires, by its condemnation, either an easement or a several estate, and not one in common with the tenants in common over whose land the railroad is situated. The necessity of laying a town-way over a railroad should appear to the county commissioners to be plain and manifest; and the company may take advantage of errors in proceedings.* 3 Railroad § 209. Telegraph line an encroachment company may erect telegraph line. The use by a telegraph company of the right of way of a railroad, for the purposes of erection and maintenance of a telegraph line, is an encroachment on the exclusive rights of the railroad. The railroad might be crowded out of its right of way by telegraph lines, and might be interfered with in necessary repairs and maintenance of its road-bed. The construction of a telegraph line involves, necessarily, the actual taking of property, and its exclusive occupation. The owner of the land can have no claim for damages because the railroad company constructs a telegraph line upon its right of way. Such use by the railroad company is a proper use of its right 198. And if cattle are injured, the railroad company is not responsible. Munger v. Tonawanda R. R., 4 N. Y. 349. 1 Lake Superior R. R. v. Greve, 17 Minn. 322. 2 Toledo R. R. v. Green, 67 Ill. 199. 3 Weston v. Foster, 7 Metc. 297. The Commonwealth v. Haverhill, 7 Allen, 523 5 Atlantic Telegraph Co. v. Chicago R. R., 6 Biss. 158: South-Western R. R. v. Southern Telegraph Co., 46 Ga. 43. of way; and it does not signify that the line was erected by a telegraph company for the joint use of such company and the railroad.1 § 210. Materials in right of way. The corporation the condemning land is entitled to the whole or any portion of materials, stone, or gravel excavated on one portion of the land, to be used in the proper construction or repair of any other portion thereof. Otherwise, if only a license to use the right of way has been given.3 The company may cut down the trees in the right of way. The burden of showing that the cutting was not necessary is on the owner. The pre-, sumption is that the officers of the railroad are exercising a proper discretion. The removal of trees may be necessary to prevent obstruction of view. The entire timber may not be destroyed simply because the company deems such course necessary and convenient. The company is to use materials only for the purposes required in the statute. Unless necessary for the construction of the road, the proprietor may remove the timber and use it as his own." Construction of the road means making the road-bed. Timber in the road-bed could not be used as firewood by the company. The minerals in the land belong to the owner, and he may remove them if it will not endanger the railroad. The materials cannot be removed, and sold to third parties. This would be an abuse of the power of condemnation, to condemn for the purpose of selling again; and when materials are so sold, the owner may recover their 6 ་ 2 Chapin v. Sullivan R. R., 39 N. H. 564; Aldrich v. Drury, 8 R. I. 554; Taylor v. New York R. `R., 38 NJ. L. 28; Preston v. Dubuque R. R., 11 Iowa, 15. Contra, as to gravel, New York R. R. v. Gunnison, 8 N. Y. Sup. Ct. 496. 3 Chapin v. Sullivan R. R., 39 N. H. 564. Brainard v. Clapp, 10 Cush. 6. 5 Taylor v. New York R. R., 38 N. J. L. 28; Preston v. Dubuque R. R., 11 Iowa, 15. • Preston v. Dubuque R. R., 11 Iowa, 15. Hasson v. Oil Creek R. R., 8 Phila. 556. 257 value.1 Trespass will lie for taking materials outside of the right of way, unless such taking is pursued under the statutory power of condemning materials.2 § 211. Track need not be in centre of right of way Obstruction of private ways. - The strip of land used as a right of way is under the control of the company, and they may locate their track in such portion of the right of way as they may deem proper. In conveyances, the owner should specify if he desires a particular location; otherwise, the company may use their discretion. In a public street, the track may be located on one side of a street, but a change of location to the other side would require the damages to be paid to the owner injured by the proximity.* Land taken by a railroad may be used by the company in the erection of buildings or other structures, and hence may obstruct a private way across the lands so taken. § 212. Fencing. The expense of new fencing required by the taking of the land should be borne by the party condemning. This liability does not impose a contract upon the party condemning, but the expense should be included in the land damages, or the obligation may be defined by the legislature. It has been further held that the compensation should include the cost of maintaining the fence. The difficulty of estimating the cost of maintaining fences has 1 Aldrich v. Drury, 8 R. I. 554; Taylor v. New York R. R., 38 N. J. L. 28. 2 Crawfordsville R. R. v. Wright, 5 Ind. 252. Munkers v. Kansas City R. R., 60 Mo. 334; Stark v. Sioux City R. R., 43 Iowa, 501. Central R. R. v. Hetfield, 18 N. J. Eq. 323. 5 Boston Gas-Light Co. v. Old Colony R. R., 14 Allen, 444. Vandegrift v. Delaware R. R., 2 Houst. 287; Greenville R. R. v. Partlow, 5 Rich. L. 428; Baltimore R. R. v. Lansing, 52 Ind. 229; Montmorency Road v. Rock, 41 Ind. 264; Whitewater R. R. v. McClure, 29 Ind. 536; Milwaukee R. R. v. Eble, 4 Chand. 72; Winona R. R. v. Denman, 10 Minn. 267; Carpenter v. Sims, 3 Leigh, 675; Tonica R. R. v. Unsicker, 22 Ill 221. St. Louis R. R. v. Mitchell, 47 Ill. 165. led some courts to deny that doctrine, and hold that the cost of maintaining the fence for an indefinite period of time should not be included, but only for the changes rendered necessary,1 and not for annual damages corresponding to those allowed for overflowing lands. The owner is not compelled to expend the money he receives in making a fence. The fencing should be reasonable fencing;* not an iron fence or stone wall, or the fence which the owner chose to construct, but reasonable fencing, such as an ordinary owner might put up." Hence the cost of fencing has been refused when the fences were not necessary, or had not been formerly used, -as, where the land was uncultivated." Evidence should be offered of the cost of fencing, and in the absence of such evidence the jury must omit damages for fencing. The owner has time in which to remove his fences. If he removes them voluntarily, his vendee cannot replace them and claim the same time to remove. The expense of removing and resetting a fence which the owner had erroneously built on the right of way, when the damages for taking the right of way had already been assessed, cannot be allowed to the owner. He should have put the fence on the proper line. The owner cannot occupy the lands of the railroad company with fences,10 and the law relating to partition fences does not apply." The company is not necessarily an adjoining owner in fee, so as to require it to join in erecting a fence. Until the company does erect a fence, it is not negligence in the owner to allow 1 Evansville R. R. v. Fitzpatrick, 10 Ind. 120; Rock Island R. R. v. Lynch, 23 Ill. 645. 2 Henry v. Dubuque R. R., 2 Iowa, 288. 3 Chesapeake R. R. v. Patton, 6 W. Va. 147. Henry v. Dubuque R. R., 2 Iowa, 288. 5 Bland v. Hixenbaugh, 39 Iowa, 532. 6 First Parish v. Plymouth, 8 Cush. 475; Raleigh R. R. v. Wicker, 74 N. C. 220; North-East R. R. v. Sineath, 8 Rich. L. 185. 7 Peoria R. R. v. Birkett, 62 Ill. 332. 8 Hunter v. Jones, 13 Minn. 307. Holton v. Butler, 22 Iowa, 557. 10 Alton R. R. v. Baugh, 14 Ill. 211. 3 his cattle to be on his adjoining land, from whence they may stray on the track.1 In Illinois, there is a statute giving an action by the railroad company against the owner for failing to fence.2 In some states, the statute makes it compulsory upon the company to fence the track. In such case, the jury cannot consider, in the damages, the probability that the company would not maintain the fence. The remedy under the statute would be sufficient. In New York, it has been suggested that the railroad should bear one-half of the cost of fencing, as the fence is for the mutual benefit of both owner and railroad.4 In Pennsylvania, the cost of fencing is not allowed, but the jury may consider, in damages, the depreciation caused by having to provide additional fences.5 The claim for compensation can best be sustained on the rule requiring the condemning party to pay not only the value of the strip taken, but its value in relation to the land not taken. But for the taking no new fencing would be necessary. Hence the value of the strip over and above the value of the land in the strip is the cost of the additional fencing rendered necessary. If the road, whether a railroad or public road, is laid out on the line of the owner's land, and no land is taken, there can be no damages for compelling the owner to maintain the whole of a fence, the expense of one-half of which, only, was formerly borne by him." § 213. Farm-crossings. It is doubtful whether railroads are compelled to construct farm-crossings; but if constructed, they become the property of the land-owner, and 1 Quimby v. Vermont Central R. R., 23 Vt. 387. 2 St. Louis R. R. v. Mitchell, 47 Ill. 165. 515. Jones v. Chicago R. R., 68 Ill. 380; Winona R. R. v. Waldron, 11 Minn. Matter of Rensselaer R. R., 4 Paige, 553. buque R. R., 2 Iowa, 288. 5 Delaware R. R. v. Burson, 61 Pa. 369. Doubted in Henry v. Du The People v. Supervisors, 19 Wend. 102; Hoag v. Switzer, 61 Ill. 294. This last case was decided before the Constitution of Illinois of 1872, which would allow damages for such an injury. |