Wisconsin, 4 Otto, 181. See also Miller v. State, 15 Wall., 488; Common wealth v. Fayette R. R. Co., 55 Pa. St., 452; Hyatt v. McMahon, 25 Bar, 457; Fitchburg R. R. Co. v. Grand Junction R. R. & Depot Co., 4 Allen, 198; Olcott v. Supervisors, etc., 16 Wall., 694; Commissioners, etc., v. Holyoke Water Power Co., 104 Mass., 446; People v. Hills, 46 Barb., 348; Crease v. Babcock, 23 Pick, 344; Miners' Bank v. United States, 1 G. Green, 563; Erie R. R. Co. v. Casey, 26 Pa. St., 300.

THE ANNAPOLIS & ELK RIDGE R. R. COMPANY

v.

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY.

(United States Supreme Court, October Term.)

The grant to one company of the rights and privileges of another, for the purpose of making and using a railroad, carries only the positive rights and privileges, without which the road could not be successfully worked.

Immunity from taxation being a mere privilege not necessary to the construction or repair of a road, is not conferred by such a grant.

The fact that the State is a large stockholder in the road does not alter the ordinary rules of construction to be applied to the charter.

Error to the Court of Appeals of the State of Maryland.

M. Blair, W. H. Tuck, and P. H. Tuck, for plaintiff in error. Charles J. M. Gwinn, Attorney-General of Maryland, and Henry Aisquith, for defendants in error.

WAITE, C. J.-The Annapolis & Elk Ridge R. R. Co. was incorporated by an act of Assembly of Maryland, passed March 21, 1837. Section 5 of its charter is as follows:

"Sec. 5. And be it enacted, That the president and directors of the said company shall be, and they are hereby, invested with all the rights and powers necessary to the construction and repair of a railroad from the city of Annapolis, to connect with the Baltimore & Washington R. R., not exceeding sixty feet in width, with as many sets of tracks as the said president and directors, or a majority of them, may think necessary; and for this purpose the said president and directors may have and use all the powers and privileges, and shall be subject to the same obligations, that are provided in the fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-third sections of the aforesaid act, entitled 'An act to incorporate the Baltimore & Ohio R. R. Co.""

The capital stock of the company was fixed at $450,000, the State taking $300,000, on which a payment of at least six per cent per annum was to be guaranteed by the company. None of the sections of the charter of the Baltimore & Ohio Co. referred to, except the eighteenth, have any special bearing on the present case. They related entirely to the powers and privileges necessary

to the construction, operation, and maintenance of the road. Section 18, on which the case depends, was as follows:

"Sec. 18. And be it enacted, That the said president and directors, or a majority of them, shall have power to purchase, with the funds of said company, and place on any railroad constructed by them under this act, all machines, wagons, vehicles, or carriages of any description whatsoever, which they may deem necessary or proper for the purposes of transportation on said road, and they shall have power to charge for tolls upon (and the transportation of persons) goods, produce, merchandise, or property of any kind whatsoever, transported by them along said railway from the city of Baltimore to the Ohio River, any sum not exceeding the following rates, viz. On all goods, produce, merchandise, or property of any description whatsoever, transported by them from west to east, not exceeding one cent a ton per mile for toll, and three cents a ton per mile for transportation; on all goods, produce, merchandise, or property of any description whatsoever, transported by them from east to west, not exceeding three cents a ton per for tolls, and three cents a ton per mile for transportation, and for the transportation of passengers not exceeding three cents per mile for each passenger; and it shall not be lawful for any other company, or any person or persons whatsoever, to travel upon or use any of the roads of said company, or to transport persons, merchandise, produce, or property of any description whatsoever, along said roads or any of them, without the license or permission of the president and directors of said company; and that the said road or roads, with all their works, improvements, and profits, and all the machinery of transportation used on said road, are hereby vested in the said company incorporated by this act, and their successors, forever; and the shares of the capital stock of the said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burden by the States assenting to this law."

mile

Under the last clause of this section it was held, at an early day, by the Court of Appeals of Maryland, that the property of the Baltimore & Ohio Co. was exempt from taxation. (Mayor, etc., of Baltimore v. The B. & O. R. R. Co., 6 Gill., 288; State v. B. & O. R. R. Co., 48 Md., 49.) In 1876 the General Assembly passed an act to provide for the assessment and taxation of railroad companies, and under that act the commissioners of Anne Arundel County proceeded to assess the property of the Annapolis & Elk Ridge Co. The object of the proceeding instituted in the court below was to vacate this assessment, on the ground that the property of the company was, by its charter, exempt from taxation. The Court of Appeals refused the relief asked, holding that no such exemption existed. To reverse that judgment the case has been brought here by writ of error.

We think the judgment below was right. Grants of immunity from taxation are never to be presumed. On the contrary, all presumptions are the other way, and unless an exemption is clearly established, all property must bear its just share of the burdens of taxation. These principles are elementary, and should never be lost sight of in cases of this kind.

The Annapolis & Elk Ridge Co. was "invested with all the rights and powers necessary to the construction and repair" of its railroad, and for that purpose was to "have and use all the powers and privileges" and be subject to the obligations contained in the enumerated sections of the Baltimore & Ohio charter. Clearly this is not a grant of all the powers and privileges of the Baltimore & Ohio Co. named in those sections, but only of such as were necessary to carry into effect the objects for which the new company was incorporated. Such is the plain import of the language employed. Consequently, only such of the privileges of the old company could be enjoyed by the new as were appropriate to the work the new company was authorized to do.

The power to construct and repair a railroad undoubtedly implies, in the absence of any restrictions, the power to use the road when constructed as railroads are ordinarily used. Such use is, in general, an incident to the ownership of that kind of property. The powers and privileges of the Baltimore & Ohio Co., therefore, which the new company was permitted to "have and use," were such as were necessary to the construction, repair, and use of its railroad. Exemption from taxation is not one of these privileges. It is undoubtedly a privilege, but not necessary either to the construction, repair, or operation of a railroad. We so held in the case of the Knoxville & Charleston R. R. Co. (R. R. Co. v. Gaines, 97 U. S., 711), where the language of the charter was much like this. Our conclusion then was, that the grant to one company of the rights and privileges of another, for the purpose of making and using a railroad, carried with it only such rights and privileges as were essential to the operations of the company; or, to use the language of Mr. Justice Field, for the court, in Morgan v. Louisiania, 93 U. S., 217, the positive rights and privileges, without which the road of the company could not be successfully worked.

It seems to us that case is conclusive of this. We cannot see that the claim of the company is at all strengthened by the fact that the State was to be the largest stockholder, and, to some extent, preferred in the division of profits. The corporation was not in that way made a part of the government. It had certain duties to the public to perform, but it was, notwithstanding the State's interest in its stock, just as much a private corporation as any other railroad company is. There are no more presumptions in its favor than any other railroad company with the same general powers and privileges can claim. The public ownership of the stock

gave the company no more rights against the State than a private ownership would. The State was not, in any respect, "her own grantee." She granted a charter, and those who claim under her charter, whether it be herself or some one else, must be content with what she granted in that way. Ordinarily the same rules of construction which are applied to other charters will be applied to such as this. The State, as a stockholder, must take what she, as sovereign, gave to the other stockholders, unless she, in express terms, provided specially for herself. She did in this case make provision for a preferred dividend, but did not on that account, or any other, relieve the property of the company from the burdens of taxation, such as were common to all property-holders in the State. She did give the Baltimore & Ohio Co. such an exemption, but that privilege was kept back from this corporation.

We are all clearly of the opinion that the power to tax the property of the company was never relinquished by the State, either in express terms or by any fair implication. The judgment of the Court of Appeals is consequently affirmed.

Affirmed.

THE NEW ORLEANS & SELMA R. R. Co. AND IMMIGRATION

ASSOCIATION et al.

V.

SALLIE A. JONES.

(Advance Case, Alabama.)

Under the Constitution of the State persons or corporations may obtain the right of way over the lands of others, but payment of just compensation to the owner must be made before his title is divested, and although such owner may have submitted to the building of a railroad over his lands, still he will not be considered to have waived his right to have damages assessed, etc., without express consent on his part.

There must be possession under color of title in good faith before a defendant is entitled to acquittal for responsibility for rents accruing during his adverse occupancy.

SOMERVILLE, J., delivered the opinion of the court.

The Constitution of 1868 (Art. 1, Sec. 25) provided that "laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations, and for works of internal improvements, the right to establish depots, stations and turnouts, but just compensation shall in all cases be first made to the owner." The Constitution of 1875 seems still more explicit in engrafting this principle of previous compensation upon the exercise of the right of eminent domain (art. 1, sec. 24), a caution. which is probably attributable to the doubts entertained as to the

proper construction of the clause in the Constitution of 1819, relating to the same subject. Lastter v. Langham, 34 Ala., 311.

Under this clause it is too evident to require argument that prepayment of just compensation to the owner of any lands sought to be condemned under any ad quod damnum proceeding is made a condition precedent, without which the title of the owner to the land, or any easement in it, is not divested, or in any manner affected. Mills on Eminent Domain, sec. 130; Provalt v. Railroad Co., 57 Mo., 256; Stacy v. Ver. Cent. R. R., 27 Vt., 39.

The owner, if sui juris, may of course waive his right to exact the prepayment of damages by consenting expressly or by clear implication to extend a credit to the condemning corporation or party, allowing the damages to be and remain as a mere debt. But such waiver is not to be inferred without words or acts of acquiescence on the part of the owner clearly indicating a purpose not to insist on his constitutional right. (Cooley's Const. Lim., 181, 561-2; Brown v. Worcester, 13 Gray, 31.) Where, however, the plaintiff has knowledge of the fact that a company is proceeding to locate and construct their road upon his land, and he allows them to expend large sums of money in improvements for this purpose without interfering or prohibiting to proceed, he would no doubt be estopped from undertaking to evict them by an action of injectment. Trenton, etc., Co. v. Chambers, 9 N. J. (Equity), 471; McAuley v. West. Ver. Ry., 33 Vt., 311.

But the unauthorized entry of a railroad company, by its agent, upon another's land without any proceedings of condemnation as provided by the statute, unless perhaps in the case of preliminary occupation temporary for a survey, or other like steps of incipient acquisition, is trespass, for which they are liable to be sued at law as other like wrong-doers may be. It is maintained by many respectable authorities that, in all such cases, even where the statute furnishes a remedy to the land-owner for the assessment of damages, he is not compelled to institute proceedings, but may rely upon his constitutional protection, and may, if he has not waived prepayment, maintain ejectment against the company. (Daniels v. Chicago & N. R. R. Co., 35 Iowa, 129, 14 Amer. Rep., 490; Smith v. R. R. Co., 67 Ill., 191; M. & C. R. R. Co. v. Payne, 37 Miss., 760; Mills on Em. Dom., sec. 130.) But where the company alone have power to carry the statutory remedy into effect, and have entered upon the owner's land without condemning it, and without his consent, the remedy of ejectment clearly lies without question according to all the authorities. Pierce on Amer. R. R. Law, p. 230; 1 Redf. Law of Railways, 535; Daniels v. Chicago & N. R. R. Co., 14 Amer. Rep., 490, supra.

In this case the agents of the appellate company entered upon the lands of the appellee, and constructed their road over them, not only without the consent of any one authorized to give it, but