was executed between the plaintiff, Small, and the Leroy & Caney Valley Air-Line Railroad Company, and this allegation was not denied by any one under oath, and therefore it must be taken as true. Civil Code, § 108. Besides, the argument proves too much; for if Hudson and the contractors had no authority to procure the right of way for the railroad companies by any direct contract with the owner of the land through which the railroad was constructed, then Hudson and the contractors would have no authority to procure the right of way in any other manner for the railroad companies; and as the whole of the right of way through Small's land, and through all the other lands in Wilson county, was procured only through the intervention of Hudson and the contractors, the railroad companies would not have and have not any right of way through the plaintiff's (Small's) lands, or through any other person's lands. The evidence shows that Hudson and the contractors did everything in procuring the right of way, that procured by virtue of condemnation proceedings as well as that procured by contract. The contractors and Hudson were really the agents of the railroad companies to procure the right of way, and the railroad companies are bound by their agents' acts. And, if they are so bound-that is, if they are bound by the acts of the contractors and Hudson in procuring their right of way, then the judgment of the court below is correct. But, if they are not so bound, still the judgment is correct; for, if they are not bound, then they can take no benefits from the acts of Hudson and the contractors in procuring the right of way for the railroad companies, and in that event they have obtained no right of way through the plaintiff's (Small's) premises, neither by contract nor by condemnation proceedings; and as they have actually constructed their railroad through such premises, and are now operating the same, they are still liable for the resulting damages, and this makes the judgment of the court below correct. We think it is correct upon the view that the railroad companies are bound by the acts of Hudson and the contractors. It cannot be possible that a railroad company, with its contractors and their agent, can, by the methods resorted to in the present case, procure a right of way through a man's land for nothing. Such is not the constitutional or statutory mode of procuring a right of way, and we do not think that it can be upheld. We do not think that there is anything further in this case that requires consideration or comment. The judgment of the court below will be affirmed. All the justices concurring.

PENNSYLVANIA CO.

V.

PLATT et al.

(Ohio Supreme Court, May 20, 1890.)

Abandonment of Right of Way-Rights of Land Owner-Recovery of Damages. In the decision of this case on the demurrer, reported in 43 Ohio St. 228, 22 Am. & Eng. R. Cas. 129, it was held that, upon the averments of the petition, the plaintiffs might treat the easement of the Lake Shore & Michigan Southern Railway Company in that part of its right of way described in the contract between that company and the defendant, set forth in the petition, as abandoned, and recover of the defendant damages as upon an appropriation. The fact upon which the petition based the alleged abandonment was the making of the contract alluded to, by which the Lake Shore Company undertook to transfer that part of its right of way therein described to the defendant for railroad purposes in perpetuity. The averments of the petition relating to the abandonment are that "by the agreement between the two companies, the Lake Shore & Michigan Southern Railway Company, for the consideration" therein named, abandoned to the defendant, and undertook to permit and license the defendant to use and perpetually occupy for its railroad" that part of the former company's right of way referred to; and, "that, by the abandonment aforesaid," the easement of the Lake Shore & Michigan Southern Railway Company ceased and terminated;" and "that portion of said lot so abandoned to and occupied by the defendant is of the value of ten thou sand dollars." The answer does not controvert the making of the contract between the two companies as alleged in the petition, but denies "that the Lake Shore Company intended to or did thereby abandon any of its right of way," or "that its easements or right of way ceased and determined by virtue of said agreement." Held (a) These denials raise no issue of fact. They are the pleader's construction of the contract, and his opinion as to its legal effect. (b) By the former decision of this court, upon the demurrer, it was settled that the effect of the contract made between the Lake Shore Company and the defendant was to work the abandonment claimed in the petition; and it was not error for the court, on the trial of the case, to so instruct the jury.

In Order to Estop an Owner from Asserting Title to His Property, by his declarations or conduct, it must appear that he was at the time apprised of the true state of his title; that he knew, or had reason to believe, his declarations or conduct would be acted upon by another; that they were acted upon by such other person in ignorance of the title; and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him to be disproved.

Construction of Railroad-Estoppel of Land Owners-Right to Claim Com. pensation. While an owner who stands by, and, without objection, sees a public railroad constructed on his land will, after the road is completed, or large expenditures have been made thereon upon the faith of his apparent acquiescence, be estopped from reclaiming the land, or enjoining its use by the railroad company, he is not thereby estopped from claiming compensation for its value.

ON the 14th of July, 1876, the defendants in error, Harvey P. Platt and Charles H. Scribner, commenced an action against the Pennsylvania Company in the court of common pleas of Lucas county, by filing therein the following petition: "The plaintiffs, Harvey P. Platt and Charles H. Scribner, say that the defendant, the Pennsylvania Company, at the times hereinafter mentioned, was, and still is, a railroad corporation, created and organized under the laws of the state of Pennsylvania, and, during the period hereinafter mentioned, has been doing business in Ohio, and managing and operating a line of railway partly located in said county of Lucas, under and by virtue of the laws of the state of Ohio; but said defendant does not now have, nor has it ever had, power under the laws of Ohio to appropriate lands for railroad purposes. Plaintiffs further say that, in the year 1851, one William Oliver was, and for some time prior thereto had been, the owner in fee-simple of the following described lands, to-wit; Lot thirteen (13) in the subdivision of fractional sections one and twelve, town ten south, range seven east, and of river tracts eighty-six (86) and eighty-seven (87), in the twelve-mile reserve at the foot of the rapids of the Miami of Lake Erie, Lucas county, Ohio. That while the said Oliver was the owner of said lot as aforesaid, and on the 28th day of February, A. D. 1851, the Toledo, Norwalk & Cleveland Railway Company, a corporation created under and by virtue of the laws of Ohio, for the purpose of constructing and operating a line of railway in said state, instituted proceedings in the court of common pleas of said county to appropriate and condemn, for its uses as such railroad corporation, a portion of said lot thirteen. Such action was had therein that a portion of said lot, being a strip of land one hundred feet in width, and about twelve hundred feet in length, extending entirely across said lot on the westerly side thereof, was appropriated by said last mentioned. railroad company for its uses aforesaid; but no compensation for said lands so appropriated was awarded or paid to said owner thereof. That shortly after said appropriation, and in virtue thereof, the said Toledo, Norwalk & Cleveland Railway Company constructed along and upon the westerly fifty feet of said strip of ground a railroad track, and continued thereafter to run their cars over the same until said company was merged by consolidation, under the statutes of Ohio, into the Lake Shore & Michigan Southern Railway Company, which last mentioned company became the successor, and was and is vested with the rights, property, and franchises of the said the Toledo, Norwalk & Cleveland Railway Company, and has since continued to run its cars over

said track so constructed along and upon the westerly fifty feet of said strip of land appropriated as aforesaid: but neither the said the Toledo, Norwalk & Cleveland Railway Company nor the said the Lake Shore & Michigan Southern Railway Company has ever made use of any portion of said strip of land lying east of the center line thereof; nor has either of said railroad companies ever had any interest in said lands, except as acquired by said appropriation. Plaintiffs further say that after the said appropriation, the said William Oliver departed this life intestate, seised in fee of said lot thirteen, leaving one Harriet O. Hall, his only child and heir at law, who thereupon became and was seised in fee of said lot, subject, only, to the rights acquired by said railroad company under and by virtue of said proceedings to appropriate. And being so seised in fee, the said Harriet O. Hall, on the 25th day of September, A. D. 1869, by her deed of that date duly executed, acknowledged, and delivered, conveyed to these plaintiffs all of said lot thirteen, including said strip of ground one hundred feet in width, subject, however, to the rights acquired therein by said railway company as aforesaid; but excepting a portion of said lot off the southerly end thereof, and easterly of the center of the River Road,' so-called, containing five and 5612-10000 acres, which had been before that time conveyed to one Stillman Brown. And plaintiffs say that under and by virtue of said conveyance they therefore became and have ever since been vested with the full title and estate in and to said premises, in their own right and in trust, and they thereupon entered upon and have ever since been possessed thereof, subject only to the rights of said railroad company acquired as aforesaid. Plaintiffs further say that about the month of September, A. D. 1872, or shortly thereafter, the defendant, the said Pennsylvania Company, wrongfully and unlawfully, under a pretended license, obtained from the said Lake Shore & Michigan Southern Railway Company, entered upon so much of said strip of ground one hundred feet in width, appropriated as aforesaid, as lies easterly of the center line thereof, and proceeded to and did dig and excavate the same along and upon said lot for the entire length thereof, and proceeded to and did lay down and construct thereon a railway track, and have ever since been and now are engaged in running their passenger and freight trains of cars daily, and many times each day, along and over the same; that on the 4th day of January, A. D. 1874, the said Pennsyl vania Company entered into a contract in writing with the said the Lake Shore & Michigan Southern Railway Company, a copy of which is hereto attached, marked A,' and

made a part of this petition, whereby it was agreed, among other things, between said companies that for the consideration of $7,500, to be paid by defendant to said the Lake Shore & Michigan Southern Railway Company, and upon certain other considerations in said agreement mentioned, the said last-mentioned company abandoned to the defendant, and undertook to permit and license the defendant to use and perpetually occupy for its said railroad a strip twenty-five feet in width, part of said strip of one hundred feet in width, lying east of and adjoining the center line of said lastmentioned strip, along the entire length thereof; and also assumed, for the consideration aforesaid, to grant to defendant certain other rights and privileges in the lands and easements of said the Lake Shore & Michigan Southern Railway Company. The portion of said lot so abandoned by said last-mentioned company to the defendant is shown in the plat or diagram attached to, and forming part of, said Exhibit A, and made a part of this petition. And plaintiffs say that the defendant claims, under and by virtue of said contract with said the Lake Shore & Michigan Southern Railway Company, to have acquired the right to use and occupy said strip of ground for its said railroad purposes, during its will and pleasure. And plaintiffs aver that by the abandonment as aforesaid of the easterly fifty feet of said strip of ground by the said the Lake Shore & Michigan Southern Railway Company, and of the portion thereof occupied by defendant as aforesaid, the said easement therein of the said last-mentioned company acquired by said appropriation thereof has ceased and terminated; that defendant has acquired no right in and to any portion of said lot under said contract with said company, or otherwise, and all its said acts are in violation of the rights of plaintiffs as the said owners of said premises. And plaintiffs aver that that portion of said lot so abandoned to and occupied by defendants, as aforesaid, is of the value of ten thousand dollars. Plaintiffs further say that said lot thirteen extends, on the west, to the thread of the channel of the Maumee river, and embraces the easterly shore of said Maumee river for a distance of about twelve hundred feet; that, as the owners of that portion of said lot thirteen conveyed to them as aforesaid, they are invested with the title to and ownership of said river front extending to the thread of the channel of said river as aforesaid, and all the rights and privileges connected therewith and attaching thereto; and, but for the said wrongful and unlawful acts of the defendant herein before complained of, the said property, rights, and privileges of the plaintiffs would be of great value. Plaintiffs say that the 46 A. & E. R. Cas-36