Opinion,
Corporations clothed with the right of eminent domain enter upon the land of private owners in one of the following ways : They enter upon giving security for the payment of the damages to be done by their entry, when ascertained, and thereby acquire title, without regard to the consent of the owner, by virtue of the statute. They enter in pursuance of a bargain with or leave given by the owner, and their title rests on their bargain or contract, and not on the statute. Or, they may enter without compliance with the law, or treaty with the owner, in which ease they acquire no title, but are trespassers, and liable to an action of trespass or ejectment, at the election of the owner. The owner may be unable to agree with the corporation as to the injury sustained by him, and the statutory proceeding may have to be proceeded with until a final adjudication can be had, but the corporation may enter meantime, and proceed with the construction of their improvements, and the owner cannot interfere. If, however, he treats with the corporation, and they enter under permission from him, he stands on the same ground when contracting with a corporation as when contracting with an individual. He is bound by his agreements in the same manner, and estopped by the same equitable considerations, in the one case as in the other. If he consents to the entry by the corporation, and sees the expenditure of large sums of
He does not, however, lose his right to compensation, and can proceed under the statute to have his damages assessed, as well after as before the construction of the road. Whether he should be permitted to proceed also by action of ejectment might, if now presented for the first time, require careful consideration. But we must regard this question as already set-died in favor of the right to maintain such action by a series of cases, among which may be cited McClinton v. Railway Co.,
In Railroad Co. v. Colwell, supra, it was said: “ But as Colwell was at least passively derelict in knowingly permitting the railroad company to occupy and put its improvements on his land, we agree that it would be inequitable to allow the judgment to work a forfeiture of those improvements; ” and execution was accordingly stayed upon the judgment, to enable the railroad company to proceed under the statute, and have the damages assessed. There was in that case, and there is in this, no contract for the sale of the right of way capable of enforce
In the case now before us, the railroad company entered under a formal release of the right of way by the widow, who was in actual possession and the holder of an estate for life in the land, and with the knowledge and acquiescence of the guardian of the plaintiff’s intestate. Its entry was in no sense a trespass, therefore, but was rightful, subject only to an ascertainment of the damages done to the remainder-man. These should be assessed as of the date of the entry. It is urged that the damages, when assessed, do not belong to the plaintiffs below, and that their action must fail for that reason, and the damages be awarded to the administrator of the intestate under whom they claim as heirs at law. But the damages were not assessed in the lifetime of the decedent, nor were any steps taken to that end. Nothing was done, therefore, that could divest his title, and substitute its value in money therefor. That title descended, consequently, to his heirs at law, who now stand in his stead, and are clothed with his rights. Davis v. Railway Co.,
Judgment affirmed, but stay of execution thereon ordered for ninety days, to enable the railroad company to proceed under the statute, and procure the condemnation of the land and the assessment of damages as of the date of the original entry; the costs to be paid by the railroad company, when taxed.