The opinion of the court was delivered, July 6th 1869, by
Williams, J.
Under the agreement with Thomas Jones and others of the 21st of June 1854, the Pittsburg and Steuben-ville Railroad Company took only an equitable estate in the land of which the strip in dispute, occupied as the track of its road, is part; and no other or greater estate was vested in the company or its assigns, under the proceedings in the District Court for the specific performance of the contract. It is clear that the legal title did not pass to the company under the decree of the 5th of January 1858, as by its express provisions the deed deposited with the cleric of the court for the use of the company was to be delivered only upon compliance with the terms of the decree, and under an order of the court to be made for that purpose. Nor was the legal title vested in the company by the supplemental or final decree of the 8th of July 1865. If this decree, as the counsel for the plaintiffs in error contend, is to be regarded as a judgment for the purchase-money, it can have no other or greater effect than a judgment at law, in an action founded on the contract, and in affirmance thereof, for the recovery of the purchase-money; and it is clear that such a judgment would not vest in the vendees the legal title to the land. But the supplemental decree or judgment was a lien on the company’s equitable interest; and the sheriff’s sale under the execution issued thereon, undoubtedly vested the whole estate, legal and equitable, in the vendees; not because the legal title was vested in the company under and by virtue of the judgment for the purchase-money, but because the vendors, by proceeding to sell the land under the execution issued thereon, elected to sell their legal as well as the company’s equitable estate, and the sale upon the *437judgment for the purchase-money was a virtual rescission of the contract: Love v. Jones, 4 Watts 465; Horbach v. Riley, 7 Barr 81; Vierheller’s Appeal, 12 Harris 105; Bradley v. O’Donnell, 8 Casey 281. The sheriff’s vendees therefore took the whole estate in the land — the company’s equitable interest under the judgment and execution upon which the sale was made, and the vendors’ legal title in virtue of their implied agreement to sell the whole estate which they had agreed to convey to the company. As the sheriff’s sale divested the company’s entire equitable estate, it follows that it no longer had any right or interest in the land whatever. The sale did not leave in the company any easement in the strip occupied by the track of its road, or any right of way over it. It was not made subject to any such easement or right of way; and the company had no easement or right of way over the ground, separate and distinct from its equitable ownership of the land, to which the sale could have been subject. The company did not enter on the land adversely to the owners, nor did it appropriate it under the power conferred by its charter. It entered upon the land and constructed and used the trarek as the equitable owner of the ground, and it never had any right to its use other than as such equitable owner, and therefore it could not possibly acquire any easement independent of its ownership of the land. It is clear, then, that the sheriff’s vendees took the whole title to the land, and that they did not take it subject to any easement, or right of the company to use any part of it for the track of its road. Neither as against the former or the present owners has the company made any legal or valid appropriation of the land for the purposes authorized by its charter. The equitable title acquired from the former owners, under which the company constructed the track, was, as we have shown, divested by the sheriff’s sale; and since then, it is not pretended that, as against the present owners, the company or its assigns have made any appropriation of the land for the use of the road. But under the provisions of its charter, the company has the undoubted right to appropriate it and to acquire a right to its use upon making compensation to the owners for the damages sustained thereby. As the land is indispensably necessary to the company, and as it has the undoubted right to appropriate it, under the provisions of its charter, on making compensation therefor, it seems to us but just and equitable that, while we affirm the judgment, we should order all proceedings thereon to be stayed for such reasonable time as may be necessary to enable* the company, in case it cannot agree with the owners as to the amount of compensation for the- use and occupancy of the land, to make application to the proper court, for the appointment of viewers to assess the damages which they may sustain thereby. We have no doubt in regard to our authority to make the order *438or of its propriety under the circumstances of this case, and if any precedent be necessary it will be found in the case of O’Hara v. The Pennsylvania Railroad Co., 2 Grant 243, where a similar order was made by the court below with the implied, if not the express, approval of this court. A writ of possession pending the proceedings for the assessment of damages might greatly embarrass the plaintiffs in error in conducting the operations of their road, and be detrimental to the interests of the public, whose necessities compel them to use the railroad for the purposes of transportation and travel, and be of no substantial benefit to the defendants in error. But they are clearly entitled to the possession of the land, or to damages for its use and occupation, by the company and its assigns. And if-the plaintiffs in error fail to institute the proper proceedings for the assessment of damages, within the time allowed for the purpose, then the defendants in error will be at liberty to proceed on the judgment.
And now, to wit, July 6th 1869, it is ordered that the judgment in this case be affirmed, and that all proceedings thereon be stayed for sixty days after the return of the record to the court below; and it is further ordered that if the plaintiffs in error shall, within the said period, agree with the defendants in error upon the amount of compensation for the use and occupancy of the land described in the writ, or, upon failure to agree, shall make application to the proper court for the appointment of viewers to assess the damages sustained by the owners, by the taking of the said land by the Pittsburg and Steubenville Railroad Company for the use of the said company and its assigns, then the plaintiffs in error, the defendants below, shall have leave to apply to the court below for such further stay of proceedings on the said judgment as may be reasonable and proper in order to complete the proceedings for the assessment of the said damages.
And it is further ordered that upon the payment of the damages which may be so assessed or agreed upon by the parties and upon payment of the costs in this ' case, that the said plaintiffs in error, the defendants below, shall have leave to apply to the court below for an order for the perpetual stay of proceedings on said judgment; and it is further ordered that if the plaintiffs in error, the defendants below, shall fail to agree with the defendants in error, the plaintiffs below, upon the amount of compensation for the use of said, land, or to make application to the proper court for the appointment of viewers to assess the damages as *439aforesaid, within the said period of sixty days, that then the said defendants in error, the plaintiffs below, shall be at liberty to issue a writ of habere facias possessionem on the said judgment.