be held in trust and treated as part of his or her original share, this restriction not to apply to the grandchildren. or implied restriction upon the payment of the corpus, carry with them the right to the principal absolutely. Millard's Appeal, 87 Pa. 457; Beilstein v. Beilstein, 194 Pa. 152, 45 Atl. 73, 75 Am. St. Rep. 692; Shower's Estate, 211 Pa. 297, 60 Atl. 789; Schuldt v. Herbine, 3 Pa. Super. Ct. 65. There was an express restriction so far as the children of the testatrix were concerned, for she provided that shares so accruing to them should be regarded in all respects as a part of their original shares; but, as we read the will, she failed in this connection to make any such provision concerning grandchildren, or to place any other restriction upon the payment of the principal to grandchildren who might take an interest in the property through the death of a childless uncle or aunt. [3] Of course, the will must be looked at from its four corners, but we find nothing therein to vary the conclusions just stated. Immediately after the clause in question, the testatrix provided that each of her seven children should have the power to limit and appoint by will the income coming to him or her so that it would be enjoyed for life by a surviving widow or husband; and also, if any of said children should leave issue, such child might limit and appoint how his or her "child, children or issue" should take, "whether in fee-simple or for any other estate, upon trusts or otherwise." This gave the power to each of the children of the testatrix to cut down and limit the estate of inheritance which would go to his or her [5] Where an instrument suggests it, the children or issue upon and through the death law encourages a construction favorable to of any one of the original seven children the unfettering of an estate rather than one leaving issue him or her surviving, but it which leads to a prolonged restraint upon its did not affect property coming to grandchil-free alienability. Here the primary and undren through the death of a childless uncle or aunt, after the decease of their parent. derlying intent expressed by the testatrix The assignments of error are sustained, and the record is remitted to the court below, with directions to modify its final decree in accordance with the views expressed in this opinion, the costs to be paid as may be ordered by the orphans' court. The testatrix displayed a special interest in the issue of her children born during her own lifetime, and she evidently desired that such grandchildren or issue should not have the absolute control during their lives of the shares which might come to them from their respective parents unless such parents should so appoint by will. In order to carry out In order to carry out this wish, and evidently for the protection of this special class, she provided that if any one of her seven children should die leaving issue who were born during the lifetime of the testatrix, and if the child so dying should not appoint by will how the share of such grandchildren should be enjoyed, then the shares inherited by such grandchildren should be held "upon the like trust and with the same power as the shares herein before devised or appointed in trust for my own children," adding, however, "that it shall be lawful for any of my grandchildren or more remote issue so born within my lifetime to dispose of his or her share of said property absolutely *** to whomsoever it may please him or her to give or devise the same." This all has reference to shares which might be transmitted from any one of the seven original children to his or her children or issue, and it has no reference to a share coming directly to a grandchild of the testatrix through the death of a childless uncle or aunt, as in the present case. [4] The words employed by the testatrix in providing for the disposition of the property after the death of any of her seven children without leaving any child him or her surviving, viz., "to receive and pay over the rents and income of such share or shares" to the beneficiaries indicated, in the absence of a limitation over or any express by (232 Pa. 76) DELAWARE, L. & W. R. CO. v. TOBYHANNA CO., Limited. (Supreme Court of Pennsylvania. May 23, 1911.) 1. ADVERSE POSSESSION (§ 8*) PROPERTY SUBJECT-RAILROAD RIGHT OF WAY. To be a part of a railroad right of way so as to overcome a claim to land by adverse possession, it must have been acquired by condemnation proceedings, or, if acquired by purchase, the burden is on the railroad, when its right to hold is challenged, to show such circumstances as would have warranted its condemnation. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 14; Dec. Dig. § S.*] 2. ADVERSE POSSESSION (§ 8*)-LAND SUBJECT -RAILROAD LANDS NOT PART OF RIGHT OF WAY. Land outside of its right of way purchased a railroad for general prospective railroad Pa.). DELAWARE, L. & W. R. CO. v. TOBYHANNA CO. purposes is subject to limitations, and title to it may be acquired as against the company by adverse possession. Note.-For [Ed. Note. For other cases, see Adverse Possession, Cent. Dig. § 14; Dec. Dig. § 8.*] 3. EMINENT DOMAIN (8 58*) EXTENT OF RIGHT-RAILROAD PURPOSES. A railroad charter granted prior to General Railroad Law Feb. 19, 1849 (P. L. 79), authorizing the company to occupy land which shall be necessary or suitable for the intended road, restrict the company's rights to such quantity of land as is necessary and essential for the purpose designated. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 147-160; Dec. Dig. § 58.*] 4. ADVERSE POSSESSION ($ 96*)- OPERATION AND EFFECT-EXTENT OF POSSESSION. Where land was purchased by a railroad company 50 years before a suit by the company to recover possession, but was never dedicated to public use, the party in possession acquired title to only so much of the lot as was actually occupied by structures adversely for more than the statutory period, where the balance of the lot was open and used by the public without restraint in hauling material for shipment from the railroad company's siding. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 533-536; Dec. Dig. & 96.*] Appeal from Court of Common Pleas, Monroe County. Action by the Delaware, Lackawanna & Western Railroad Company against the Tobyhanna Company, Limited. From the judgment, both parties appeal. Affirmed. Ejectment for land in Coolbaugh township. This appeal is from a retrial after a reversal of a former judgment in favor of the plaintiff. See 228 Pa. 487, 77 Atl. 811. The facts are stated in the opinion of the Supreme Court, and in the report of the former appeal. Plaintiff presented the following points: (1) The land claimed by the defendant by adverse possession, having been purchased by the plaintiff for railroad purposes, and having been used for the construction of switches adjacent to and diverging from its main track, was held by the said railroad for a public use, under the grant of its right of way, and no title could be acquired by the defendant to the surface of any portion of what was used for such a purpose, by adverse possession, however long continued. (2) The defendant having purchased the lot of land 700 feet in length and 125 feet in width from the center between main tracks, and having used the same for one of its main tracks, for switches, sidings, and passenger station, freight station, and necessary platforms and approaches thereto, such use was a public use, and made the entire lot part of a public highway, and title cannot be obtained to any portion of the same by adverse possession, however long continued. (3) It is the undisputed evidence that the plaintiff used the piece of land 700 feet long and 125 feet in width as a part of its right 133 of way, and for public use, and that all parts of it were continuously used so except that physically and actually occupied by the buildings of the defendant; and, as to this part, the defendant could gain no title by adverse possession, because its possession was an encroachment upon the right of way of the railroad company. (4) There is no particular width of land recognized by the law of Pennsylvania as the right of way of a railroad. This right of way consists of a strip of land of varying widths as the necessities of the railroad may require for the construction of its main tracks, sidings, turnouts, switches, stations, and approaches thereto. (5) When land is acquired by a railroad corporation, either by purchase or condemnation, and is actually used for its railroad, no title can be gained to any portion of what is then used by adverse possession, however long it may be continued. The court charged in part as follows: It must be open, "The court cannot agree with either one of the contentions of the parties in this case, because the plaintiff replies to the contention of the defendant, that it never has had adverse possession of this property because it has been used by the public and by the plaintiff company for a number of years, and, in addition to that, that it is within its right of way, and that no adverse possession can be obtained against the right of way of a railroad company, and therefore the defendant is not entitled to any part of this land. Adverse possession, or the right to property by adverse possession, is where a person, or a corporation, if you please to call it so, which is an artificial person, has had the exclusive, continuous, uninterrupted, notorious, and adverse possession of a piece of land for 21 years. You will notice all the elements that are there. which is nearly the same as notorious, exclusive, continuous, uninterrupted, and adverse, and, in order for you to sustain the contention of the defendant company in this particular as to the whole lot of land, you would have to find it, with those qualifications; and, while that question is for you, gentlemen of the jury, the court is of the opinion under all the testimony that it is not warranted by it—that is, as to the whole tract-because it was not fenced in (there was a fence on the lower side of it) and it was used according to some of the evidence, if you believe it, by the public generally, including the railroad company, and by teams, etc., and notwithstanding the fact that there were certain acts done upon this lot by the defendant company, including the piling of piles and other lumber there for the purpose of shipment on the Delaware, Lackawanna & Western Railroad, that that would not come up to the full measure of proof that would be required to give exclusive posses *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes sion to this whole tract of land. And I think we will go so far as to instruct you, gentlemen of the jury, that, under the evidence, there is not sufficient to warrant such a conclusion on your part. We do say to you, however, that while it may not have had the exclusive possession of all of this land that, under the evidence of the defendant company, if you believe it, and we see no reason why you should not, because it is uncontradicted, the defendant company had constructed on this piece of land about seven or eight feet of its office and a feedhouse, and that they had been there for very much longer than 21 years, and that, in addition to that, they had used this feedhouse and the cellar under the store, the entrance to which was on what is claimed to be the railroad side of the line, and, if you find from all the evidence in the case that the defendant company has used this land in this way, the storehouse, and the feedhouse, and has for a period of over 21 years used the land in order to have access to the feedhouse and the storehouse, we say to you that, as far as those two places are concerned, the office and the feedhouse, that it would have such adverse possession, if you believe it was open, notorious, exclusive, continuous, and uninterrupted for a period of 21 years, as would prevent the plaintiff company from recovering, as far as they, the buildings and land under them are concerned, in this action of ejectment." "As to the other buildings that were put upon these premises, which according to the testimony as we recollect it, varied from seven to ten years, namely, the shed and the coal bin, we say to you that there being no such evidence of adverse possession for the period required by law, and for the land upon which they stand, the plaintiff is entitled to recover, and that for all the other land in this tract not occupied by these buildings, the office and the feedhouse, we say to you that the railroad company is entitled to recover, subject as we have stated to the right of the defendant company to have access to its office and cellar under the office and to its feedhouse." "If you find, therefore, that the defendant company did have adverse possession under the qualifications as made by the court, and as we say to you, gentlemen of the jury, in the court's opinion, the evidence warrants you in so finding, although the question is for you, we say to you that your verdict should be in favor of the plaintiff for the land upon which the horse shed is erected, the land where the coal bín is erected, and all the other land not covered by the feedhouse and the office, subject to the right of the defendant company to free access to and from the office, the cellar thereof, and the feedhouse as it has been wont to have for a period of 21 years, and over." Verdict for plaintiff for all the land men covered by the part of the office of the defendant company on the said land mentioned in said writ, and that covered by the feedhouse with the privilege to the defendant company of access to the cellar under said office, and said feedhouse over the land aforesaid. Both plaintiff and defendant appealed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and STEWART, JJ. A. Mitchell Palmer, for Delaware, L. & W. R. Co. F. B. Holmes, for Tobyhanna Company, Limited. STEWART, J. If the record in the first of these appeals discloses any material fact that was not considered, or any question that was not decided when the case was before us in the former appeal reported in 228 Pa. 487, 77 Atl. 811, it has escaped us. We see no ground whatever for misapprehension of what was there decided; but inasmuch as the "tremendous importance of the question raised not only to the plaintiff, but to all the railroads of Pennsylvania" is urged upon us, we shall endeavor to restate what was there decided in a way which will remove all possible ground for misunderstanding, as well any lurking suspicion that that decision conflicts with settled doctrine. First of all, let it be understood that we did not there hold that title to any part of a railroad company's right of way can be acquired by adverse user. We distinctly held that that question was not before us, and we expressed no opinion in regard thereto. [1] The contention of the plaintiff was that the lot in dispute was part of its right of way. This was denied by the defendant, and into that inquiry we entered at some length. Our conclusion was adverse to the plaintiff's contention on the facts before us. We have here the same facts to deal with. The lot was acquired by the railroad company more than 50 years ago by purchase. Its railroad had then been constructed upon land adjoining, and was then being operated. How the company entered upon that land originally we are not informed. To perfect its right of occupancy, it subsequently purchased from the owner a strip of land 700 feet in length and 100 feet in width; that is to say, the ground used as its roadbed, with 50 feet of ground on either side of its center line. It acquired by the same. conveyance, but as a separate tract, the lot in dispute, thus described in the conveyance: "Also such additional lands for depot or railroad purposes at *** Tobyhanna stations, as are included within the boundaries following, to wit: At Tobyhanna, beginning with the center line of said railroad at a point one hundred feet north of the north corner of the foundation of the water tank and running thence westerly on a line at right angles with the line of the said railroad one hundred and twenty-five feet in width to a corner; thence southerly parallel with and one hundred and Pa.) DELAWARE, L. & W. R. CO. v. TOBYHANNA CO. 135 railroad, seven hundred feet to a corner; j sary and essential, the declared public use thence easterly on a line at right angles would have become a matter of record, and with the line of said railroad, one hundred the land could not thereafter have been deand twenty-five feet to the center line of voted. to other purposes. The mere act of said railroad; thence along said center line purchase committed the company to no parseven hundred feet to the place of beginning. ticular use of the land. It may say to the Thus including on the westerly side of the party from whom it purchases, "We want it railroad for the said distance of seven hun- for some purpose for which we could legaldred feet, seventy-five feet in width over ly condemn it"; and in the deed the vendor and above and outside of said one hundred may recite that it is conveyed for such purfeet hereinbefore conveyed for right of way." pose, but this impresses no use in which the This lot has for years been bisected by a public is concerned or could enforce. It republic road, dividing it into two nearly equal mains a matter that concerns only vendor parts. The controversy is over one of these. and vendee. What then will impress it with The contention of the plaintiff assumes that a public use and bring it within the sanctithe lot is part of the railroad's right of way. ty of right of way? We answer nothing but Herein consists the fallacy. The fact that it an actual dedication of the land to that use was acquired by purchase, and not in the by so employing it, or other equally decisive exercise of the company's right of eminent act. The plaintiff company had laid its domain, we regarded as a matter of signif- tracks upon and over the land embraced in icance; not that a railroad company may a larger strip, thus devoting it to a plain not acquire its right of way in either manner, and manifest public use in an unmistakable but because certain incidents attach in the way. If it has built switches upon the one case that do not in the other. A rail- land acquired by purchase, that again is a road company can acquire adversely to the decisive act which secures it in the enjoyowner by condemnation when it establishes ment of the land acquired. But as to so a purpose in the condemnation falling within much of this land as is now claimed by the express letter of the law, giving it the the defendant through adverse use the plainfranchise to take; whereas by purchase noth- tiff has done absolutely nothing upon it to ing adversely can be acquired. In the one indicate any purpose whatever it had in case the fact of condemnation indicates a acquiring it. Up to the present time, it public use, and that fact becomes established has been free to dispose of it, or apply it to by the appropriation; in the other, it indi- any lawful use except as its vendor can be cates nothing, and establishes nothing but heard to question its right so to do. For the title in the acquisitor. A railroad company company to say now, more than a half a may lawfully acquire lands not strictly es- century after the acquisition, that it needs sential to the operation of its road, but which it for a purpose for which it could have may conveniently and profitably be used in originally condemned it, is not only to beg connection therewith; but it is only for the the question, but in itself affords a refutaacquiring of such as are essential that the tion of the claim. Fifty years and more law makes provision by allowing the high have elapsed since it acquired title, and durfranchise to be exercised for their procure- ing all that time, upon its own admission, These essentials are a roadway, not the lot has not been required for the exerexceeding a given width, except where physi-cise of its franchise. How, then, could it cal conditions require greater places select- have been acquired by condemnation? We ed for sidings, turnouts, depots, and engine are not overlooking our decisions to the effect that a railroad company may in condemning land anticipate future needs with respect to those things which are essential. We make no attempt to define the limits to this right of anticipation when we say that attempted provision covering a period of 50 years in matters of this kind must either be pure conjecture resting on no substantial basis, or inspired prophecy, and with respect to condemnation of land the law bases its procedure on neither. Our effort has been to show the fallacy in the assumption on which the argument on behalf of the plaintiff proceeds that the land in dispute by the fact of purchase became a part of the railroad company's right of way. To be a part of its right of way, it must have been acquired as such by condemnation proceedings, or, if acquired by purchase, the burden must be on the railroad when its right to hold is challenged to show such circumstances as would have warranted its condemna or water stations. If it be conceded that these essential lands properly fall within what, for the want of a better term, we call right of way, and when acquired by condemnation are impressed with a public use, and therefore not to be interfered with, the question remains, Can as much be affirmed of a strip of land such as that here in dispute, acquired by purchase, without any adjudication that, when acquired, it was needed for one of the purposes for which condemnation was allowed? We answered that question in the former appeal in the negative, and we repeat the answer here. That is to say, no presumption arises from the fact of purchase that the land so acquired was for necessary purposes in connection with the operation of the railroad. Had the railroad company at that time attempted to acquire this land by condemnation, the burden would have been upon it to show that it was neces tion. We state no new proposition. All that we have said has fullest warrant in Shamokin Valley Railroad Co. v. Livermore, 47 Pa. 465, 86 Am. Dec. 552. In Robinson v. Railroad Co., 161 Pa. 561, 29 Atl. 268, it is said by Mitchell, J.: "It is not intended to interfere with the discretion of the corporation in the location of its stations, sidings, etc., nor with its right to do what good engineering required, but the exercise of both must be in good faith for the purposes the statute permits, and the necessity, extent, and location of extra appropriations for such purposes must be definitely shown. The charter limitation of 66 feet is mandatory, except in the cases the charter itself specifies, and it cannot be set aside or evaded at mere will. While the discretion is in the corporation, its exercise, when challenged in a court of law must like every right be sustained by showing the circumstances under which the charter authorizes it." [2] To summarize: (1) However true it may be that no part of the right of way of a railroad company can be acquired adversely, there is no authority for holding that property of a railroad not included in its right of way may not be so acquired. (2) Nothing is included in right of way except what is the subject of condemnation, and when a railroad company asserts a publice use in land it has purchased, to overcome the adverse possession by another, its claim can only be sustained by showing the existence of conditions which would have permitted it to condemn the land in the first instance, or actual dedication to such use. (3) If such conditions exist to-day, it may recover what it has lost by appropriate proceedings. (4) If these do not exist, it is fairly persuasive that they never did. ference being that the latter defines expressly what are necessary and essential purposes. Certainly quite as much land was required for the construction of railroads and their operation in 1849 as in 1832. The limitation of the right to lands necessary for the intended road fixed upon the earlier company the same burden that rests upon the appellant company when its right to take lands is challenged of showing the necessity that requires it. The assignments of error on this appeal are overruled. [4] We have yet to consider the appeal by the defendant from the same judgment. The verdict was a recovery by the plaintiff of all the land in dispute except so much as had been occupied by the defendant's structures for more than the statutory period. The defendant claimed title to the entire lot by adverse possession. As we read the charge of the court, it was a binding instruction to the effect that the defendant's evidence was not sufficient in law to overcome the plaintiff's written title, except as to so much as was covered by defendant's improvements. The jury certainly so understood it. Was this error? We have examined the evidence with much care without being convinced that the instruction was erroneous. It lacks one essential-the possession shown was not exclusive. Certainly it was not of such a character as to put the plaintiff on notice. The circumstances suggest a permissive use rather than a hostile holding. The defendant's occupancy and use of the land was in some respects peculiar to itself, but nevertheless others used it for their own purposes with a like freedom. It was an open lot admitting of public travel upon and over it from all points. The public used it without restraint in hauling material for shipment from the plaintiff's siding. The principal use of it by defendant was for storing lumber for like shipment. The evidence indicates strongly that the lot was regarded by the public as a common. Their use of it, concurring with that of the defendant, without let or hindrance, is wholly inconsistent with defendant's claim that it was during this period holding hostilely to the plaintiff. The assignments of error in this appeal are likewise overruled, and the judgment is affirmed. [3] So far, we have proceeded on the assumption that appellant has no other or wider privilege of condemnation than is allowed under the general railroad law of February 19, 1849 (P. L. 79), and its supplements. The claim is made that it is not subject to the limitations and restrictions of that act, inasmuch as it has succeeded to all the rights and privileges of the Ligetts Gap Railroad Company, incorporated under the act of April 7, 1832 (P. L. 1831-32, p. 316), and by the subsequent act of April 14, 1851 (P. L. 628), merged with appellant company, and that the charter of the earlier company contains no restriction as to the amount of land the company could appropriate. A RUSSELL v. HENRY C. PATTERSON CO. reference to the charter of that company shows that the power granted was in express terms limited to the appropriation of such land as was necessary for the exercise of the corporate franchise. The company was authorized "to occupy for that purpose (the building of its road) land which shall be necessary or suitable for the intended railroad." The act of February 19, 1849, gives exactly the same right; the only dif et al. (232 Pa. 113) (Supreme Court of Pennsylvania. May 23, 1911.) 1. CORPORATIONS ($ 426*) - OFFICERS - COMPENSATION RATIFICATION. A resolution passed by a majority of the board of directors of a corporation increasing the salaries of two of its directors as officers of the company where the salaries are found by the court to be fair and reasonable compensation for the services rendered may be ratified and |