ever used for her benefit; nor has there been any ratification of the acts of those persons who attempted to convey to the railroad company her interest in the property; nor has the time. which has elapsed since her right of entry been of such duration as to show an acquiescence in the wrongful appropriation of her property. The case should be treated as one in which the owner of the land who is asserting title against the railroad company never consented to its occupation by the company, either by herself or by anyone authorized to represent her. But while this is true, we think that, under the circumstances of this case, Mrs. Hughes should not be allowed to treat the company as a naked trespasser. Its entry upon the property in the lifetime of Emma De Laigle was lawful and authorized. At the time of its entry, and so far as the record shows, up to the time of the claim now set up by Mrs. Hughes, it and its successors believed that they had acquired a fee simple title to the property, the deeds under which they claimed purporting to convey such an estate. Their right to possession after the death of Emma De Laigle was at least colorable. It has been said that "an original entry by the consent of a tenant for life is lawful, and will not subject the party enjoining to an action for damages 20 on the part of the remainderman, although damages have not been paid": Mills on Eminent Domain, sec. 142. The statement above made was quoted approvingly and followed in the case of Chicago etc. Ry. Co. v. Goodwin, 111 Ill. 273; 53 Am. Rep. 622. In the case of Austin v. Rutland R. R. Co., 45 Vt. 215, it was held that where a railroad company had entered into possession of property with the consent of the life tenant and continued to use and possess the same after the termination of the life estate, to the exclusion of the remainderman, and without appraisal or payment of damages, the remainderman could not maintain ejectment against the company. Even if we were disposed to do so, it is not necessary for us to go to the length of the decisions just cited. We are of opinion that the petitioners in the present case have waived their right, if any they had, to insist in the first instance upon a judgment in ejectment against the railroad company, not by anything they have done before they instituted their suit, but by the way in which they have brought their suit and the character of the same and of the relief prayed in the original petition. The assets of the Port Royal & Augusta Railway Company were in the custody of a court of equity through the medium of a receiver, and he had possession of the property now

in controversy. The petitioners did not apply to this court for leave to go into a common-law court and assert there a strict and technical common-law right; but they applied to this court of equity to be allowed to come in and make themselves parties to the pending suit, and set up their right in such suit against the receiver and the company which was represented by him; and they prayed for a judgment declaring them to be the owners of the property described in their petition, and that they be placed in possession of the same, if the court should decide in their favor; and distinct prayers were made for an order in the nature of an injunction against the receiver to prevent him from delivering any of the property in Georgia to those who might become purchasers under the order of court in the state of South Carolina until the issues raised by them should be determined; and, further, that the receiver should be required to retain in his hands a sufficient sum of money to pay the judgment that might be rendered in favor of petitioners. 21 On this petition the court passed an order allowing the petitioners to intervene in the cause, and granted an order restraining the receiver from changing the existing status of the property, or permitting the same to be sold in the state of South Carolina, as petitioners alleged was about to be done. The petitioners have not only resorted to a court of equity to set up their claim, but they have come in praying in their behalf distinct equitable relief. They practically concede that a contingency may arise in which the parties in possession of the land claimed by them would be authorized to purchase the same, such being the inevitable inference to be drawn from the prayer asking that a sum of money be impounded in the hands of the receiver for their benefit.

"He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subjectmatter of the suit": Civ. Code, sec. 3924. The meaning of this maxim is, "that whatever be the nature of the controversy between two definite parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief upon the party seeking its interposition and aid unless he has acknowledged and conceded, or will admit and provide for, all the equitable rights, claims, and demands justly belonging to the adversary party, and growing out of or necessarily involved in the subject matter of the controversy. It says, in effect, that the court will give the plaintiff the relief to which he is entitled, only upon condition that he has given, or consents to give, the

defendant such corresponding rights as he also may be entitled to in respect of the subject matter of the suit": 1 Pomeroy's Equity Jurisprudence, sec. 385. Anyone going into a court of equity and asking its aid, whether that aid be such as could be obtained in a court of law, or whether it be of a character obtainable only in a court of equity, submits himself to the jurisdiction of the court, and in asking its aid subjects himself to the imposition of such terms as well-established equitable principles would require. Especially would this be true where the relief sought by the party applying to the court is both legal and equitable in its nature. No one can read the facts of the present case without being impressed that there is an overwhelming equity in favor of this railroad 22 company being allowed to purchase from the petitioners the property owned by them, and which is so necessary to the complete operation and maintenance of the company's road in the discharge of its public duties. Whatever might have been Mrs. Hughes' rights against the company if she had sued at law, or if she had obtained leave of this court of equity to have maintained at law an independent suit against the receiver or other persons in possession, under the remedy which she has elected she is bound to submit the subject matter of the litigation to the adjudication of the court upon equitable principles. Her right to insist upon a judgment of ouster in the first instance is therefore gone, if the defendant desires to insist upon its right to purchase the property; and the pleas of the defendant, which set up its right to have the value of the property passed upon by a jury, that they might be given an opportunity to purchase and pay for the same, were good in substance, and should not have been stricken. It is contended, however, that as the defendant is a foreign corporation, and as it has no authority under the laws of this state to acquire property by condemnation, it had no right to come into court and file a plea asking that what was equivalent to a condemnation be had in the pending suit. While it is not a corporation organized under the laws of this state, by comity it is permitted to come into this state, and is here discharging public duties of the nature usually performed by corporations of that character, and it is as fully under the control of the laws of this state in regard to the discharge of such public duties as if it had been incorporated under our laws. As a foreign corporation it has the right, until stopped by the state, to maintain and operate its railroad within the limits of this state. In order to exercise this right, the property in con

troversy is an essential part of its right of way and terminals. Such being the case, the equity in its favor, requiring that the court of equity to which petitioners have applied should accord to it the right to acquire by purchase the possession of the property before a harsh judgment of ouster should be rendered against it, is just as strong as if it had authority to acquire possession of the property under the exercise of the power of eminent domain. The equity in favor of 23 a railroad company, in such a case, does not grow out of the right it might have under the law to acquire title to the property in which it happens to be in possession, but it grows out of the fact that it is in possession of the property; that the entry of its predecessor in title was lawful and authorized; and that the same has become a necessary component part of the property of the corporation, which is discharging duties of a public nature. The court should have allowed the pleas filed; and, after the damages had been assessed by a jury, a decree should have been entered, allowing the defendant a reasonable time, to be stated in the decree, to pay the damages so assessed, and, upon its failure to pay the same within the time specified, that the petitioners recover the land and writ of possession issue.

4. The judge of the superior court directed the jury to return a verdict in favor of petitioners for the land in dispute; and directed them also to find that the railroad iron thereon was the property of the defendant. This latter ruling is the one complained of in the cross-bill of exceptions. It appears from the record that the railroad iron referred to in the verdict was the tracks which had been placed upon the land in controversy by the railroad company as a part of its main track between its terminal points, and also sidetracks used as a part of its terminals in the city of Augusta. It is apparent that these improvements were made upon the property with no intention on the part of the railroad company to improve the value of the estate, but solely for its uses and purposes in its business as a common carrier of freight and passengers. Upon the termination of the life estate which the railroad company acquired under the conveyance from Holt, did the title to these improvements vest in the remainderman at the same time that the title to the land vested? In the case of Elwes v. Maw, 3 East, 38, Lord Ellenborough reached the conclusion, after an elaborate examination of authority, that buildings and the like, erected by a tenant upon the leased premises for the purposes of agricul ture and necessary for the occupation of the farm and the im

mediate profits of the land, were not removable by the tenant even during his term; but that such improvements as were placed by the tenant upon the premises for purposes of 24 trade were not governed by the same rules, and were removable by the tenant at any time before the expiration of his term. This decision was followed by the supreme court of the United States in the case of Van Ness v. Pacard, 2 Pet. 137. The same doctrine is recognized in the case of Carr v. Georgia R. R. Co., 74 Ga. 73, though what is said in that case is merely obiter. Meigs' Appeal, 62 Pa. St. 28, 1 Am. Rep. 372, it appeared that during the Civil War the United States authorities erected certain buildings used as military barracks and hospitals in the borough of York. After the war had ended and the buildings were no longer used by the government, they were offered for sale, the purchaser to have the privilege of removing the same from the premises. The authorities of the borough applied for an injunction to prevent the removal of the buildings, alleging that they were of a permanent nature, attached to the realty, and therefore became the property of the borough, and could not be removed after the government had abandoned the use of them for the purposes for which they were erected. It was held that the buildings thus erected being placed there at the time when the necessities of the government required the same for military purposes, when the conditions requiring their use ceased to exist the government had a right to remove the same from the premises. In the case of Wagner v. Cleveland etc. R. R. Co., 22 Ohio St. 563, 10 Am. Rep. 770, it was held that stone. piers built by a railroad company as a part of its railroad, on lands over which it had acquired a right of way for its road, did not, though firmly imbedded in the earth, become the property of the owner of the lands as part of the realty; and that when the railroad company abandoned the purpose of completing the railroad it had a right to remove such structures from the premises as personal property; and the fact that the landowner had been allowed to take possession of the land embraced in the right of way and hold it for a term of years less than is required to extinguish the easement, did not, in itself, imply a relinquishment on the part of the railroad company of its right to enter and remove the piers. In the case of Toledo etc. Ry. Co. v. Dunlap, 47 Mich. 456, it was held that a railway track, or other improvement wrongfully placed upon 25 land by a railway company, and not abandoned to the owner of the premises, cannot be treated as a part of the realty for the purpose of increasing