railroad company has proceeded under the statute to condemn the right of way and has obtained possession thereof by filing the statutory bond, it is then too late for the company to discontinue its condemnation proceedings. Fischer v. Catawissa R. Co., 175 Pa. St. 554 (34 Atl. Rep. 860). A railway company may estop itself from claiming the statutory width of a right of way by electing to take a right of way of less width. Joplin & W. Ry. Co. v. Kansas City, Ft. S. & M. Ry. Co., 135 Mo. 549 (37 S. W. Rep. 540). Where a railroad company has located and constructed its road under a special charter giving it the power of eminent domain, designating the general course of its line and authorizing a survey to determine the most advantageous route, which survey was duly made and recorded, it cannot subsequently exercise the right of eminent domain for the purpose of relocating its right of way. Lusby v. Kansas City, M. & B. R. Co., 73 Miss. 360 (19 So. Rep. 239; 36 L. R. A: 510). See opinion for collation and citation of numerous authorities.

Sec. 785. Recovery of damages-Measure of damages. Where a railroad right of way has been appropriated and the compensation paid and the road constructed upon piles or piers, a subsequent filling in of the right of way by the railroad company is no ground for a reassessment of damages. Hummel v. Cumberland Val. R. Co., 175 Pa. St. 537 (81 Atl. Rep. 848). Where a railroad company is a trespasser it cannot assert the statute of limitations as a defense against an action for damages brought under Wis. Rev. Stat., §§ 1846, 1852. Tucker v. Chicago, St. P., M. & O. Ry. Co., 91 Wis. 576 (65 N. W. Rep. 515). The right to recover damages on account of the taking of a right of way by a railroad company is assignable and may be enforced by the assignee. Tucker v. Chicago, St. P., M. & O. Ry. Co., 91 Wis. 576 (65 N. W. Rep. 515). While the jury should not, in assessing damages in favor of a property owner upon the appropriation of land for right of way purposes by a railroad company, take into consideration, as a distinct element of damage, such remote contingencies as the frightening of horses and injury to persons and property by passing trains, such matters are proper subjects of inquiry in determining to what extent if at all, the

value of the property in question has been impaired by the construction and operation of the road. Chicago, B. & Q.

R. Co. v. Shafer, 49 Neb. 25 (68 N. W. Rep. 342). For cases which depend upon particular facts and illustrate the measure of damages in proceedings for the condemnation of a right of way, see Sanitary District v. Loughran, 160 Ill. 362 (43 N. E. Rep. 359); Pittsburgh, Ft. W. & C. Ry. Co. v. Lyons, 159 Ill. 576 (43 N. E. Rep. 377); Omaha, H. & G.' Ry. Co. v. Doney, 3 Kan. App. 515 (43 Pac. Rep. 831).

Sec. 786. Negligent construction of road under lawful authority-Present and prospective damages. A railway company that has constructed its road under lawful authority creates neither an abatable public nuisance nor a continuing private nuisance by failing to have sufficient space between embankments, or by means of culverts for the passage of the water of running streams, in case of any rise in the streams that might reasonably be expected; and the injury due to that cause may be compensated for by the assessment of present and prospective damages in a single action. It is the legal right of either plaintiff or defendant to elect to have permanent damages assessed in such an action upon demand made in the pleadings, and when either makes the demand the judgment may be pleaded in bar of any subsequent action. The defendant is required to set up this or any other equity upon which it relies, as well as to prove the averment on the trial. But where a plaintiff is allowed, without objection, to have such damage apportioned, the judgment is not a bar, and either party to a subsequent suit involving the same question may demand that both present and prospective damages be assessed, and upon proof of a previous partial assessment the jury may consider that fact in diminution of the permanent damage. The measure of damage is the difference in the value of the plaintiff's land with the railway constructed as it is and what would have been its value had the road been skillfully constructed. Ridley v. Seaboard & R. R. Co., 118 N. C. 996 (24 S. E. Rep. 730).

Sec. 787.

Appeals in condemnation proceedings. Before either party to condemnation proceedings instituted by

a railway corporation in the exercise of the power of eminent domain, can appeal from the award of the commissioners to the district court, a bond for appeal must be executed to the adverse party; and the further proceedings in the district court are between the individual land owner, on the one side, and the condemning party, on the other. Where several owners of separate tracts of land are interested, the railway company cannot, by a single appeal, transfer the entire proceedings to the district court. Missouri Pac. Ry. Co. v. Gruendel, 3 Kan. App. 53 (44 Pac. Rep. 439). A party cannot appeal from the award of the commissioners in condemnation proceedings, and at the same time voluntarily comply with the award, or accept the benefits thereby conferred. Missouri Pac. Ry. Co. v. Gruendel, 3 Kan. App. 53 (44 Pac. Rep. 439).

Sec. 788. Use of right of way by land ownerAdverse possession. Title to the unfenced portion of a right of way may be acquired by twenty years' adverse possession of the abutting landowner. Illinois Cent. R. Co. v. Moore, 160 Ill. 9 (43 N. E. Rep. 364). The court say: "A continuous possession of twenty years under claim of ownership, and hostile to all the world, is a complete bar to all rights of entry that are not within the saving clauses of the statute, and it makes no difference whether such right of entry is based on a fee-simple title to the land or on an easement, provided, only, the actual possession of the land is hostile to such title or easement. The general rule is that easements acquired by deed. are not lost by nonuser, where there is no adverse possession to bar the right. Kucken v. Voltz, 110 Ill. 264. But a complete nonuser of an easement for twenty years, with possession in another that is inconsistent with or adverse to the right of such easement, will bar the easement. City of Peoria v. Johnston, 56 Ill. 45; Village of Winnetka v. Prouty, 107 Ill. 218; Railroad Co. v. Houghton, 126 Ill. 233 (18 N. E. Rep. 301); Village of Auburn v. Goodwin, 128 Ill. 57 (21 N. E. Rep. 212). The doctrine is that, while mere nonuser of all or a part of a railroad location or right of way does not defeat or impair the right, yet the adjoining landowner or the owner of the fee may obtain title or regain title by an adverse use and occupancy for the requisite statutory period, where the con

duct of the railroad company has been such as to indicate its intention to abandon the whole or a part of the location or right of way. Pierce, R. R. 260; 2 Wood, Ry. Law, § 240; Norton v. Railway Co., 9 Ch Div. 623; Id. (Ct. App.) Ch. Div. 268. Railroad Co. v. Houghton, 126 Ill. 233 (18 N. E. Rep. 301), and Railroad Co. v. O'Connor, 154 Ill. 550 (39 N. E. Rep. 563), are decisions of this court to the same effect. The doctrine of those cases is that the right of possession that a railroad company has in its right of way, whether by fee simple title or as an easement, is exclusive, and that this is so, as to such easement, on account of the peculiar character of the easement; and that, where the grantor of the railroad company, or his assigns, has subsequent possession of all or a part of such right of way for twenty years or more, by fencing and cultivating it along with the rest of the land, and during which time it is not included within the fences of the railroad company, the claim of right of way will be barred by limitation."

Sec. 789. Specific performance-Equitable rightLaches-Subsequent purchaser with notice. In case a railroad company enters into an agreement with the owner for the purchase of certain lands; takes possession of such lands: erects an embankment thereon 20 feet high, with an arch or culvert over a highway crossing said lands; lays its tracks and runs its trains over said embankment and culvert, with the knowledge and acquiescence of the vendor for 9 years, and his heirs at law and legal personal representatives for over thirty years, such company, having been in open and notorious possession of the premises for at least 40 years, is entitled to a decree of specific performance against one who took title from the executor of the vendor to said company, and is entitled te an injunction against an individual or a private corporatior who threatens to open trenches and lay iron pipes in such highway, where such highway crosses the land agreed to br conveyed. Lapse of time in such case is no bar, unless the vendor takes steps to make it so. Nor can any one claim to be a bona fide purchaser. Such subsequent purchaser takes with notice, and holds the legal title for the first vendee, who is the owner of the equitable title. Penn. R. Co. v. U. S. Pipe-Line Co., N. J. Eq. (33 Atl. Rep. 809).

Sec. 790. Highway and farm crossings. Where a bridge is constructed by a railroad company over its right of way as a part of the public highway, and to effect an overhead crossing, under a contract with the municipality that the grade crossing shall be vacated, such bridge belongs to the municipality as a part of the highway and not to the railroad company. Pennsylvania R. Co. v. Greensburg, J. & P. St. Ry. Co., 176 Pa. St. 559 (35 Atl. Rep. 122; 36 L. R. A. 839). An ordinance authorizing the crossing of the streets of a city by the tracks of a railroad company confers upon the corporation therein named no exclusive use of such crossing, but a use to be enjoyed in common with the general public. A railroad company which has by ordinance, acquired a permanent easement in the streets of a city, is not entitled to compensation from a street-railway company as a condition to the crossing of its tracks by the latter, under a grant of power from the city. Chicago, B. & Q. R. Co. v. Beatrice Rapid Transit & P. Co., 47 Neb. 741 (66 N. W. Rep. 830). As against the railroad company, a public highway cannot be established across its right of way without having obtained permission from such company, or by having acquired the right by proper condemnation proceedings. Until such highway is legally established the railroad company cannot be required to put in crossings and cattle guards. Illinois Cent. R. Co. v. Comm'rs of Highways, 161 Ill. 247 (43 N. E. Rep. 1100). Ala. Const., art. 14, § 21; Code, § 1582; Acts 1892-93, p. 93; Act Feb. 18, 1891, construed and applied-condemnation of right to cross another railroad-appeal. Memphis & C. R. Co. v. Hopkins, 108 Ala. 159 (18 So. Rep. 845). Conn. Gen. Stat., §§ 3489-3491, relative to alterations in the location of a highway or a railroad at the crossing of the two, construed and applied. Cullen v. New York, N. H. & H. R. Co., 66 Conn. 211 (33 Atl. Rep. 910). Under Wis. Rev. Stat., § 1836, requiring every corporation constructing a railroad across a street or highway to restore the same to its former condition, it is held that this requirement applies to an unused and unopened platted street. City of Racine v. City of Racine v. Chicago & N. W. Ry. Co., 92 Wis. 118 (65 N. W. Rep. 857): The right of a farm crossing may be reserved in a deed of right of way and its location may be subsequently changed by the road