That the use of said land and the rents thereof during said time was and is reasonably worth the sum of $50 per month. That the defendant dug up the soil and made embankments and ridges upon the land, permanently damaging the same $500. That by gross negligence in making the ditches on each side of the track, the said company, by reason of the overflow of water occasioned, has seriously injured his adjoining lands upon which he lives. That in 1876 and 1877 his potato crop was thus overflowed and lost. That each of said crops was of the value of $100. That his dwelling-house was injured thereby in the sum of $100, and one grape vine of the value of $25, besides other elements of damage.

The defendant answered by general and special exception, general denial, five and ten years' limitation, and limitation of two years as to the damage. Also, in the event the court should decide the question of title to the land against defendant, it then asked a condemnation of the land for right of way for its road.

The case was tried November 15, 1878, when the jury returned the following verdict:

Judgment was rendered accordingly, and the case came up on writ of error.

The errors assigned were numerous.

The first was that the

verdict for the plaintiff for the land was against the evidence, as the evidence showed a dedication of the land to the use of the rail. road for its right of way as a public highway.

E. P. Hill, for appellant.

E. P. Hamblin, for appellee.

WATTS, J. COM. APP.-At the time of the construction of the railroad in 1860 the land of Sutor was subject to the right of eminent domain; the corporation could then have procured a judicial condemnation of it without the consent or even against the wishes of Sutor. The company would then have been bound to pay the damages assessed for such use of the land.

It appears from the record that the city of Houston had agreed with the railroad company to procure the right of way within the city limits, and, acting in pursuance thereof, the mayor, representing the city, called upon Sutor to procure his consent for the company to occupy the strip of land across his tract without com

pensation. This Sutor agreed to, and said to the mayor that he would not charge the company anything for the right of way if it would construct ditches and carry off water. The road was con

structed, the ditches made, and the line operated for about seventeen years before this suit was brought. The privity between the mayor, acting as the representative of the city, and the railroad company, in regard to this matter of the right of way, is sufficiently shown; and it was not essential to constitute such privity, under the circumstances of this case, that Sutor's declaration should have been made to some officer of the company.

The right of the company to occupy with its road-bed Sutor's land depended upon his consent then given or upon a judicial condemnation. A railroad is a public highway (Const. of Texas, art. X, sec. 2; 3 Paige (N. Y.), 74; Angell on Highways, sec. 370); and especially is this true, so far as the acquisitien of the right of way is concerned; for upon no other theory could the right of eminent domain be conferred upon a railroad corporation.

In this respect the doctrine of dedication, or rather of estoppel in pais, would apply to the right of way for a railroad the same as to any other public highway. The court, in the case of Oswald v. Grenet, 22 Tex. 94, held in effect that a dedication need not be by deed, or evidenced by a continuous use; but that it is sufficient if there was an unequivocal act or declaration of the owner to dedicate the land, and that others have acted in reference to and upon the faith of such declaration.

When defendant in error consented to the occupancy of the land by the railroad without compensation other than what would accrue to all the property owners alike with himself from a completion of the road, he thereby dedicated the same to that public use; and as the corporation continued the construction of its road and the use and occupancy of the land upon the faith of his declaration, the dedication for the particular use became a vested right, and would not be divested or destroyed by a failure upon the part of the company to maintain such ditches as would be necessary to carry off the surface

water.

A failure to construct and maintain such ditches as would be necessary for proper drainage would give Sutor a right of action for the damages resulting to him by reason of such failure; but it would not give him the right to make an entry upon the right of way and declare it forfeited. H. & T. C. R. R. Co. v. W. C. McKinney, Tex. Law Journal, vol. 4, No. 45, p. 712.

We are of the opinion that the verdict awarding Sutor damages for the right of way was clearly against the evidence.

Another serious objection to the recovery of damages for the right of way is the time at which such damages were estimated; that is, the evidence adduced upon this point was, as to the value of the land taken and the damages resulting from the particular

use, confined to 1875. Even if the railroad company had made the entry, and constructed its road, under a revocable license, when Sutor sought to revoke, and the company asked a condemnation, it would appear unjust to make it pay the increased value by reason of the completion and operation of its road. Having consented to the occupancy of the land by the company for a road-bed, and acquiesced for so long a time in such occupancy, and by such acquiescence induced the belief that a condemnation was unnecessary, now to allow him to recover the present value of the land, and damages by reason of such occupancy, would be to permit him to speculate upon his own laches, and ignore his acquiescence to the injury of others.

If, as clained, the special injury for the destruction of the potato crops, etc., of Sator in the years 1876 and 1877, was caused by the increased flow of water by reason of the ditches of the Great Northern R. R. Co., then the Texas and New Orleans Ry. Co. would not be liable; such injury would not result as a legal consequence of any wrongful act or negligence upon the part of the latter. To authorize a recovery for such injuries, the negligence or wrongful act of the Texas and New Orleans Ry. Co. must be the proximate and not the remote cause.

We conclude that the judgment of the court below ought to be reversed and the cause reinanded.

Reversed and Remanded.

See note to Union Trust Co. v. Cuppy, post.

LEHIGH VALLEY RAILROAD Co., Plaintiff in Error,

v.

MCFARLAN, Defendant in Error.

(43 New Jersey Law Reports, 605.)

The charter of the Morris Canal and Banking Company empowers the company to take and appropriate to its use any lands or waters necessary for the erection and use of its canal for the purposes of navigation, without compensation first made, subject nevertheless to the right of the owner of lands or water-rights so taken and appropriated, to compensation for his damages, to be ascertained in the manner prescribed by the charter.

The twentieth and twenty-seventh sections of the charter secure to persons injured in their property rights a remedy in conformity with the ordinary rules regulating actions at law, according to the nature and extent of the in1 jury sustained. If the injury be one that is temporary and recurrent, successive actions for damages sustained from time to time may be the proper remedy. But when the company has effected a complete appropriation of property by the location of its canal on lands or the appropriation of waterrights to its use, by the construction of works designed to effect a constant

and continuous diversion or flooding back of waters, such lands or waterrights are taken, the injury is then done and the damages consist in the entire value of the property and are recoverable in one action; the taking and appropriation being lawful, the occupation or use of the property so taken or appropriated cannot be considered a continuing wrong for which successive actions will lie.

Where property has been permanently appropriated by the company to its use, the action reserved to the owner by the twentieth section of the charter is the means provided for him to obtain an appraisement and recovery of his damages, in case the company does not proceed to obtain an appraisement by commissioners, pursuant to the sixth section, and the damages recoverable in such action will be the same compensation which is determinable by the award of commissioners-full compensation for the injury done by the appropriation of the owner's property to the company's use.

In analogy with the statute of limitations, which applies only to corporeal hereditaments, the enjoyment of an incorporeal hereditament, adverse, exclusive and uninterrupted for twenty years affords a conclusive presumption of a grant to be applied as a presumptio juris et de jure.

The owner of the servient tenement cannot overcome the presumption of a grant arising from an uninterrupted user of twenty years by proof that no grant was in fact made. He may rebut the presumption by contradicting or explaining the facts upon which it rests, but he cannot overcome it by proof in denial of a grant.

The owner of the servient tenement may show that the right claimed is one that could not be granted away, or that the owner of the servient tenement was legally incapable of making, or the owner of the dominent tenement incapable of receiving such a grant. He may explain the user or enjoyment by showing that it was under permission asked and granted, or that it was secret and without means of knowledge on his part, or that the user was such as to be neither physically capable of prevention nor actionable. But if there be neither legal incompetency nor physical incapacity, and the user be open and notorious, and be such as to be actionable or capable of prevention, the servient owner can only defeat the acquisition of the right on the ground that the user was contentious. or the continuity of the enjoyment was interrupted during the period of prescription.

Mere denials of the right, complaints, remonstrances or prohibitions of user, unaccompanied by any act which in law would amount to a disturbance, and be actionable as such, will not prevent the acquisition of a right by prescription.

ON error to the Supreme Court.

For the plaintiff in error, T. N. McCarter and F. T. Frelinghuysen.

For the defendant in error, II. C. Pitney and B. Gummere.
The opinion of the court was delivered by

DEPUE, J.-The defendant is the lessee of the Morris Canal and Banking Company. In 1871, the property, works and franchises of the latter company were granted to the defendant by a perpetnal lease, under the authority of an act of the Legislature. Pamph. L. 1871, p. 444.

The lessor was incorporated in 1824, for the purpose of constructing a canal to unite the river Delaware, near Easton, with the tide waters of the Passaic. Pamph. L. 1824, p. 158. The canal was constructed from the Delaware to the Passaic about

1830. In 1845 it was enlarged throughout its entire length, to provide for navigation with boats of greater capacity. In 1857 the company renewed the timbers in its dam across the Rockaway river, and placed new flash boards upon it. In 1875 the flash boards were replaced by timbers firmly spiked on the top of the dam, and made part of its permanent structure.

The plaintiff is the owner of a mill situate on the Rockaway river above the site of the dam. He complains of an injury to his mill by back water cast back upon it by means of the dam. The damages claimed are such as accrued between the 30th of December, 1876, and the 22d of September, 1877. As his declaration was originally framed, the theory of his action was that the dam at its increased height was an unlawful structure. At the trial the declaration was so amended as to present a claim for compensation for the damages sustained by the plaintiff between the days. named, conceding that the canal company by its charter had power to take and appropriate to its use lands and water, without compensation first inade, and that therefore the dam was not, in itself, an unlawful structure.

By its act of incorporation the canal company was authorized to enter upon and take possession of and use such lands, waters and streams as might be necessary for its canal without compensation first made. Entry upon and the appropriation of private property to its use by the company is not a trespass. Ejectment will not lie to oust the company from lands on which its canal is constructed, nor are its works liable to abatement as a nuisance to the water-rights of others, though compensation has not been made to the owners of lands or water-rights taken or injured by the company in the construction or operation of its canal. This constrnetion of the company's charter is too firmly established to be now called in question. Kough v. Darcy, 6 Halst. 237; Den v. Morris Canal, 4 Zab. 587; Lehigh Valley R. R. Co. v. McFarlan, 4 Stew. 706. In the case last cited, which was between the parties to this snit, and related to the dam as now constructed, this court decreed that this defendant had and still has the right under the charter of the canal company to erect and maintain the flash boards, the subject of complaint in this suit. The lawfulness of the dam as constructed is res adjudicata by the decree in the last-mentioned

suit.

In this court, upon the argument of this case for the first time in the several litigations between these parties, the contention had been made that the power to take and appropriate lands and waters to the use of the company expired in 1839, under the limitation in Section 23 of the canal company's charter. At this stage of the controversy between these parties it is not permissible to raise that question. The rights of the parties in that respect have been fixed by the decree above referred to.