him to interfere in the distribution. His full duty therein will be discharged by paying over the fund in pursuance of the decree of the court.” If an administrator, not otherwise interested in the distribution of a fund in hands for that purpose, had a right to interfere in the proceedings, he might be induced to do so for the purpose of delay; the fund in the mean time remaining in his hands. Inasmuch, therefore, as the appellee appears to have volunteered his services in this contention, we think he should be required to pay at least the costs of this appeal personally, and not as administrator.

Decree reversed, at the costs of the appellee, David R. Vaughn; and it is ordered that the record be remitted to the court below, with instructions to enter a decree in accordance with this opinion.

CAMBRIA IRON Co.’s APPEAL.l (Supreme Court of Pennsylvania. October 4, 1886.) LANDLORD AND TENANT—DISTRESS—RECEIPT 0F DRAFTS IN PAYMENT OF RENT. A landlord who receives accepted drafts of his tenants for rent due, and thereupon gives a receipt for the rent, loses his right to claim a preference as ' landlord under the Pennsylvania act of June 16, 1836, (P. L. 777,)although the drafts are never paid.

Appeal of the Cambria Iron Company, from common pleas, Bedford connty, confirming the report of the auditor appointed to make distribution of the money arising from the sale by the sheriff, by virtue of a writ of flat fluids, of the personal property of the Kemble Coal & Iron Company.

The facts of the case are set forth in the report of Appeal of Riddles— burg 0an dc Iron 00., ante, 381. Before the auditor the Cambria Iron Company presented a claim for royalty on ore from January 1, 1884, to August 8, 1884, for $3,091.11, under the terms of a lease from it to the Kemble Coal & Iron Company, dated October 31, 1879, and to continue for a period of six years. Of this sum $1,275 was for royalty for J anuary, February, and March, 1884, and $1,705 for royalty for April, May, June, and July, 1884, and $111.11 for royalty from August 1 to August 8, 1884. The rents for the months of January to March, inclusive, and from April to July, inclusive, were settled by drafts drawn by the Cambria Iron Company, and accepted by the Kemble Coal & Iron Company. Upon receipt of the accepted drafts the Cambria Coal '& Iron Company gave receipts for their royalty. Neither of the drafts was paid. The auditor ruled that the Cambria Iron Company lost its right to claim as landlon by accepting the drafts as payment of the rent, and the fund was awarded to labor claimants, to the exclusion of appellant. Exceptions to this ruling having been dismissed by the court, the Cambria Iron Company took this appeal.

Russell 42' Longemcker, for appellant.

The recovery of a judgment, even, does not prevent the landlord from exercising his right of distress. , Nothing but satisfaction has that effect.

Shetsline v. Keemle, ] Ashm. 29; Snyder v. Kunkleman, 3 Pen. & W. 487;\
Bantleon v. Smith, 2 Bin. 146; Kreiter v. Hammer. 1 Pears. 559.
John Cessna, R. M. Speer, and J. M. Reynolds, for appellees.

The right of distress was extinguished by the receipt of the drafts. Silver v. Williams, 17 Serg. & R. 292; Jones v. Shawhan, 4 Watts & S. 257; Kreiter v. Hammer, 1 Pears. 559; Warren v. Forney, 13 Serg. 85 R. 52.

STERRETT, J. The subject of complaint in the first specification is the approval by the court of the learned auditor’s finding that the drafts received by appellant from the Kemble Coal & Iron Company were accepted as payment of the rent owing by the latter, and that by so taking said drafts appellant lost its right to distrain. If this finding is correct,—and presumptively it is so until the contrary clearly appears,— it is conclusive of appellant’s right to participate in the fund for distribution, and hence the subordinate questions involved in the remaining specifications become immaterial. An examination of the testimony satisfies us that the learned auditor was fully warranted in finding as he did. Indeed, it is difficult to see how, with due regard to the evidence, he could have found otherwise. There was no error, therefore, in rejecting appellant’s claim for rent, on the ground that it had been paid. Bu t, if the fact had been found otherwise, still appellant would not have been entitled to participate in the distribution, for the reason that the labor claims represented by the appellees were preferred claims, and, as such, entitled to the whole fund, as has been determined in Riddlesburg 0an 62' Iron Co.’s Appeal, ante, 381.

Decree affirmed, and appeal dismissed, at costs of appellant.

PITTSBURGH JUNCTION R. Co.’s APPEAL.
(Supreme Court of Pennsylvania. October 4, 1886.)

1. RAILROAD COMPANIES—EMINENT DOMAIN—CROSSING YARD OF A RAILROAD— INJUNCTION.

A railroad company will be restrained from proceedings to take, under the right of eminent domain, a portion of the yard of another railroad company, where the location of its road through plaintiff’s yard is a matter of economy, and not of necessity, and defendant can reach its terminus by another route. TRUNKEY and CLARK, JJ., dissenting.

2. SAME—PENNSYLVANIA RAILROAD AcT or JUNE 19, 1871—RELOCATION BY MasTER—CONDEMNATION OF RAILROAD YARD. .

The Pennsylvania railroad act of June 19, 1871, (relating to crossing of lines of railroads by other railroads, and authorizing the court, if it is reasonably practicable to avoid a grade crossing, to prevent such crossing at grade their process,) does not apply to proceedings to condemn, and locate a ral road through another company’s yard; and the master, on a reference, 1s not justified in relocating such a road under that statute.

Appeal from court of common pleas N0. 1, Allegheny county.

Bill for injunction. Perpetual injunction granted. Defendant appeals.

John McCleave and George Shiras, Jr., for appellant.

Hampton a Dalzell, for appellee.

PAXSON, J. This case has drifted from its moorings. Originally it was a bill, filed in the court below by the Allegheny Valley Railroad Company against the Pittsburgh Junction Railroad Company, to prevent said company from taking, under the right of eminent domain, a portion of the property of the former company. The plaintiff is a railroad corporation, owning and operating a line of railroad extending from Pittsburgh to Oil City, and, by means of various connections, to Buffalo, in the state of New York, and has owned and operated the same line for upwards of 30 years. The defendant is a railroad corporation created and organized under the act of April 4, 1868, and its supplements. The plaintiff acquired the property in dispute long before the organization of the latter company, and uses it for the purposes of its yard. It is occupied with numerous tracks, coal-trestles, ice-house, round-house, and other buildings convenient and necessary for its business. The defendant is about constructing a railroad from its main line, at the foot of Twenty-sixth street, in the city of Pittsburgh, extending along the left bank of the Allegheny river to a point at or near the mouth of Negley’s run, and also a like branch along the left bank of the Allegheny river to a point at or near the foot of Eleventh street, in said city. In pursuance of this object, it surveyed and located a route through the plaintiff’s yard, cutting through the coal-yard, repair-yard, and about 24 feet of the coal-chute. Not being able to agree with the plaintiff, the defendant filed its bond in the court below in accordance with the act of assembly. Whereupon the plaintiff filed this bill to restrain defendant from further proceeding to lay its tracks upon the location in question. The court below granted a preliminary injunction, and, upon final hearing, made the injunction perpetual.

Upon the hearing before the master, the defendant abandoned its first location, and, without any action on the part of its board of directors, proceeded to relocate its road through the plaintiff’s yard with a view to obviate some of the objections of the plaintiff, and lessen the injury and inconvenience of the business of the latter. The master proceeded to relocate the road in accordance with the plan submitted by the defendant. He held that such action was justified under the act of ‘ une 19, 1871, which provides that if, “in the judgment of such court, t is reasonably practicable to avoid a grade crossing, they shall, by their recess, prevent a crossing at grade.” Upon exceptions to the master’s report, the court below held that the act of 1871 had no application, for he reason that it referred to railroad crossings alone, while this was not 1. case of crossing at all in the proper sense of the term. In this we .hink the learned judge was clearly right. The act of 1871 relates “to :rossing of lines of railroad by other railroads.” There was no attempt more to cross the line of plaintiff’s road. It was an attempt to run hrough the plaintiff’s yard, and the crossing of some of its yard-tracks ind switches, which were merely incident to the use of its main line. is was well observed by the court below:

i “The attempt is not simply to cross the yard and tracks with a common [88, but absolutely to take from plaintiff a. portion of their yard for the sole use of the defendant. The issue is not in what mode the defendant should cross plaintiflf’s property, but solely whether it can cross it at all. The right of a railroad company to corporate rights being established or admitted. the right to cross, it necessary or convenient in reaching its terminus, is abso— lute, and the court can 'only ascertain the mode. But the court must inquire and ascertain whether unnecessary injury will be done by crossing in the manner proposed, and also whether a grade crossing can reasonably be avoided, and decree accordingly. Pittsbm'g di- 0. R. Co. v. Southwest Pen/nsylcam'a R. Co., 77 Pa. St. 173. No such issue was made in this case, and nothing suggested in the decree recommended by the master determines these questions.”

We might well stop here and affirm this decree. We are in no doubt, however, as to the main question. While the franchises of a corporation are property, and may be taken under the power of eminent domain, yet, when property has been already taken for one public use, by a corporatiOn, it cannot be taken by another corporation for another use, except by express grant or by necessary implication. The principle is well settled that “the lands or right of way occupied by one railroad company for its corporate purposes cannot be taken as right of way by another railroad company, except- for mere crossings; and then only for crossing purposes, and not for exclusive occupancy.” See Pennsylvania R. Co.’s Appeal, 93 Pa. St. 150; Cake v. Pennsylvania. (it E. R. Co., 87 Pa. St. 307; Housatonz'c R. Co. v. Lee 64‘ H. R. Co.', 118 Mass. 391; Boston 0': M. R. Co. v. Lowell R. Co., 124 Mass. 368; Prospect Park 0': C. I. R. Co. v. Williamson, 91 N. Y. 552; St. Paul Union Depot Co. v. City of St. Paul, 30 Minn. 359; S. C. 15 N. \V. Rep. 684; Central City Horse Ry. Co. v. Fort Clark Ry. Co., 81 Ill. 523; Hicock v. Hlne, 23 Ohio, 523. This rule is not confined to the track or right of way of the company, but also to the grounds occupied by all the appliances necessary for the successful operation of the' road. Philadelphia, W. de B. R. Co. v. Williams,54 Pa. St. 103; Dublin (it D. R. Co. v. Navan, etc., R. Co., L. R. 5 Ir. Eq. 393; Prospect Park &' C. I. Ry. Co. v. Williamson, supra; St. Paul Union Depot Co. v. City of St. Paul, supra.

In Cleveland (it P. R. Co. v. Speer, 56 Pa. St. 325, it was said by Justice AGNEWZ

“A power to build side tracks is essential to the purpose and use of the road. A power to build a railroad of a single track, without the means of passing the trains, or of leaving the track for the shifting of cars, or of repairs at the shops and yards, and without standing room for the cars not in motion, would

be clearly wanting in all that is necessary to safety. convenience, and ability, and would be vain and nugatory.”

See, also, Boston & M. R. Co. v. Lowell R. Co., supra.

It was urged, however, on the part of the defendant, that the yard of the plaintiff is larger than is necessary for its present use, and that it could be so rearranged as to accommodate defendant’s tracks, and without serious detriment to the plaintiff, either in the present or the future. The evidence upon this point is conflicting, and we will not discuss it. The plaintiff contends that the arrangements of its yard cannot be changed without inconvenience and loss in the handling of its business, and that its area is not greater than will be required in the near future. We are Of opinion that a railroad company has a right to consider the needs of the future, and to construct its road and make its plans with reference to those future needs. Upon this point the saying of MCKENNAN, J., in Lake Shore (Q‘ M. S. R. Co. v. New York, 6'. J: St. L. R. 00., 8 Fed. Rep. 858, is sound and sensible;

“Every reasonable intendment must be taken in favor of the primary rights of the complainant at the points Of the alleged conflict. NO actual encroachment upon their rights can be sanctioned or allowed; and, in measuring. their extent, there must be a liberal consideration of the future, as well as the existing, necessities Of the complainant,—the use of the existing tracks, the construction Of additional ones, the convenient storage of its freight at all seasons, and the unembarrassed transaction Of all its business.”

We are not embarrassed with the question that would arise if the defendant company could not build its road without laying its tracks through the plaintiff’s yard. The location claimed for defendant is a matter of economy, not Of necessity. It can construct its road and reach its terminus by another route. It is true, it would be expensive, but it is a mere question Of money and engineering skill. It is not entitled to run through the plaintiff’s yard, and cripple its facilities for handling its business, merely to save money. Upon this point the language of our Brother GORDON in Pennsylvania R. Co.’s Appeal, supra, is so clear and forcible that I may well repeat it here: '

“This plea, of necessity, is so frequently made to cover infractions Of both public and private rights that, prima facie, it is suspicious, and must be closely scrutinized, especially when it is used to carry corporate privileges beyond charter limits. This plea, in the first place, must be tested by the rule, now Of universal acceptation, that all acts of incorporation and acts extending corporate privileges are to be construed most strongly against the companies setting them up, and that whatever is not unequivocally granted must be taken as withheld. This rule is to be taken in all its rigor where the attempt is so to construe a corporate grant as to interfere with a previous grant of the same. Pennsylvania Packer v. Railroad 00., 19 Pa. St. 211. It is true that a. franchise is property, and, as such, may be taken by a corporation having the right of eminent domain; but in favor Of such right there can be no implication unless it arises from a necessity so absolute that, without it, the grant itself would be defeated. It must also be a necessity that arises from the very nature of things over which the corporation has no control. It must not be a necessity created by the company itself for its own convenience or for the sake Of economy. To permit a necessity such as this to be used as an excuse for the interference with or extinction of previously granted franchises would be tO subject these important legislative grants to destruction on a mere pretense,—-in fact, at the will of the holder of the latest franchise.” '

The decree is affirmed, and the appeal dismissed, atthe cost of the appellant.

TRUNKEY, J ., (dissenting) I shall only indicate the ground of dissent. This decree restrains_the appellant from entering upon, or in anywise in-' terfering with, the property of the appellee, situate between Forty-third and Forty-seventh streets, and from entering upon, working upon, or in