on the land, and conveyed to them no title or estate therein. The railroad company rightfully entered upon the land under a grant of a right of way from the only person who possessed the right to make such grant. By this grant the railroad company acquired an easement for the construction of a railroad solely for personal use in carrying on the business of a common carrier of goods and passengers. The ties and rails and other articles laid or placed in or upon this easement of way were so laid and placed for the sole purpose of constructing a continuous railroad track to enable the railroad company to carry on its business as a common carrier. The superstructures on the right of way were annexed to the right of way for personal use, with no intention to annex them to the freehold. It would be absurd to suppose such superstructures were placed in or upon an isolated part of a continuous right of way for the betterment of the inheritance. If the rails and other property did not become annexed to the freehold as fixtures at the time they were placed on the right of way, they certainly have never lost their character as personal property; and, if they have always retained their character as personalty, then neither the real-estate mortgage of the petitioners nor the foreclosure and sale thereunder have wrought any change in their character or title.

The case of Graham v. Railroad Co., 36 Ind. 463, holds that, where a railroad company has, without the consent of the owner, entered upon land, and has built a depot and hotel thereon for railroad purposes, such structures become fixtures annexed to the freehold, and that in condemnation proceedings by the railroad company to acquire a right of way over the land it must pay for those structures as a part of the realty of the landowner. If this case were conceded to be a correct exposition of the law, it would not be controlling. But the case is unsound in principle, and is in conflict with the great weight of authority. A review of a few of these cases may not be unprofitable.

Corwin v. Cowan, 12 Ohio St. 629, was a case where a canal company had acquired an easement over certain land for the construction of its canal. It had imbedded in the soil of its right of way materials used in building locks. Subsequently, by abandonment, the easement terminated. It was held that the materials so used remained personalty, and that the reversion of the easement to the owner of the inheritance did not carry with it the ownership of the materials used in the construction of the locks, and that they were never intended as annexations to the freehold, and, having been rightfully used in building the locks, they were removable as personal property.

Wagner v. Railroad Co., 22 Ohio St. 563, was a case where a railroad company had acquired a right of way for its road over a certain parcel of land, and had built stone piers firmly imbedded in the soil of its right of way. The railroad company subsequently abandoned its purpose of completing its railroad. It was decided that these stone piers remained personal property, and that, as between the railroad company and the owner of the freehold, the company had the right of removal.

Railroad Co. v. Morgan, 42 Kan. 23, 21 Pac. 809, 4 L. R. A. 284, was a case where a railroad company by mistake, and without the knowledge or consent of the landowner, dug a well, and put in a pump and boiler, which were attached to the soil of the landowner. After some years the railroad company discovered the mistake, and took steps to remove the pump and boiler. The owner of the land sought to enjoin such removal, on the ground that the pump and boiler were fixtures annexed to the soil. It was held that these articles were personalty, and that the railroad company had the right of removal without paying for them to the owner of the land.

The case of Northern Cent. Ry. Co. v. Canton Co. of Baltimore, 30 Md. 352, was replevin to recover the possession of a lot of iron rails, frogs, spikes, and bolts brought by the railway company against the Canton Company. The railroad had been laid under a parol license on the land of the Canton Company. The latter company had recovered the right of way in an action of ejectment, and, under a writ of habere facias possessionem, possession of the right of way had been delivered to it by the sheriff. The court held that the rails and other articles remained personal property, and belonged to the railway company. The supreme court of Michigan had the same question before it in Railway Co. v. Dunlap, 47 Mich. 456, 11 N. W. 271. The court said:

"The railroad company, whether rightfully or wrongfully, laid its track while in possession, and with purpose entirely distinct from any use of the land as an isolated parcel. It would be absurd to apply to land so used, and to a railroad track laid on it, the technical rules which apply in some other cases to structures attached to the freehold. Whatever rule might apply in the case of abandonment, it is clear that the superstructure was never designed to be incorporated with the soil except for the purpose attending the possession, and in proceeding to obtain legal and permanent right to occupy the land for this very purpose."

The court further said that there would be no sense in compelling the railway company to buy its own property.

The case of Railway Co. v. Le Blanc, 74 Miss. 626, 21 South. 748, shortly stated, was this: A right of way on which a railroad track was wrongfully laid was sold at a tax sale, and the title so acquired was duly confirmed in the purchaser by appropriate judicial proceed. ings. The purchaser claimed that he became the owner of the rails laid down on the right of way as fixtures annexed to the soil. The court held that the rails were personalty, and did not pass by the sale of the right of way on which they had been wrongfully laid, nor by the judicial confirmation of the tax title. It was declared that the general rule that things annexed to the soil by trespassers belong to the owner of the freehold was not applicable as against a corporation having the right of eminent domain, where such corporation had wrongfully entered and made improvements for the public purpose for which it was created and given the right.

Reason as well as the great weight of authority support the foregoing views. It follows that the steel rails and other articles in controversy have always remained personal property, and belong to the railroad company, to be disposed of by the receiver for the benefit of its creditors. The demurrer to the answer is overruled.

MURPHY v. SOUTHERN RY. CO.

(Circuit Court, N. D. Georgia. January 19, 1900.)

No. 994.

1. REFERENCE-CONCLUSIVENESS OF Report.

A finding by a master in chancery as to a question of boundaries. based on an examination of deeds and upon conflicting oral testimony, should not be lightly interfered with.

2. SAME.

A finding by a master in chancery as to the amount of damages will not be interfered with unless it is so inadequate or excessive as to be uureasonable.

In Equity.

Simmons & Corrigan, for plaintiff.

Dorsey, Brewster & Howell, for defendant.

NEWMAN, District Judge. This case is now heard on exceptions by both parties to the report of the special master. The usual rule as to the weight to be attached to the report of a master in chancery is that it is presumed to be correct, and that it will not be set aside. unless clearly and manifestly erroneous. Additional weight is given such a report when the reference is by consent of parties. In this case, while the order of reference recites that it is by consent of parties, it is claimed (and such is probably the fact) that the consent was with reference to the person selected as special master, and that it was not strictly an agreement to refer. However this may be, it is true that, after it was determined that the case should be referred, counsel were given the opportunity to agree upon a suitable person to act as special master, and selected the Honorable Howard Van Epps, a lawyer of ability and high standing in the profession, and with lengthy experience on the bench. Judge Van Epps heard the evidence in the case, and the record and his report shows great care and painstaking on his part. His findings should not be lightly interfered with. See Walters v. Railroad Co. (C. C.) 69 Fed. 706; Farrar v. Bernheim, 21 C. C. A. 264, 75 Fed. 136; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289.

The first question for consideration is as to what part of what is called the "D'Alvigny Strip" in the evidence and in the special master's report is owned by Mr. Murphy. He claims that the railroad company has taken part of it, and has laid tracks thereon, while the railway company contends that he had no interest whatever in the part taken. In determining this question, it became necessary for the special master to examine deeds running back for some 30 years, and investigate plats, and hear a large amount of oral evidence. He finally decided the case on his construction of the different deeds bearing on this question, and the descriptions contained therein, and determined that the part of the D'Alvigny strip owned by Mr. Murphy did not embrace any of the land upon which the railway company had entered. After going carefully over the special master's report

on this subject, I am unable to see any good reason why it should not be sustained. There was evidence locating Mr. Murphy's part of this strip further east, so that the tracks of the railroad company would encroach on the same, but the question is peculiarly of the kind where the services of a master in chancery are valuable. He not only had all the documentary evidence before him, but he has seen the witnesses, and has heard them examined and cross-examined; and, having reached a conclusion upon disputed facts, and conflicting evidence, his conclusion should stand.

The other feature of the case, as to which there are exceptions by the complainant, relates to the complainant's right to an easement in what is called the "East Extension of Gray Street." In determining this question, it became necessary for the special master to investigate the matter in several aspects. First, there was a question of law, as to whether a certain stipulation in the deed from Ella Loyd to the Schofield Rolling-Mill Company should be construed as a covenant running with the land, or whether it was a dedication of the strip which is called the "East Extension of Gray Street" to public uses as a street. The special master gave it the former construction, but it will not be necessary to determine whether this legal view of the matter was correct or not, in view of what will be hereafter stated. It became necessary for him also to determine whether there had been any use of this strip as a street by the public. He held that there had not been. On this subject he says:

"The overwhelming evidence in this case establishes that he had no private way legally established to any such road across the tracks, or that any public road or street existed across those tracks. The evidence conclusively establishes that the north extension of Gray street, north of D'Alvigny street, had never been made a public street, nor had the east extension of Gray street to the right of way of the railroad company. It is entirely manifest that nothing but a village or settlement road existed across the railroad tracks at North avenue before it was formally extended, or between North avenue and the east extension of Gray street. The land here was no more than a common, outlying and uninclosed, and existing in a state of nature. The villagers did, indeed, struggle for an outlet across the railroad, and did from time to time pursue first one course then another across this common, but no street or private way was outlined or exclusively used. First one part of the common would be used, and then another; the question of gulleys or other superficial obstacles regulating the choice of those who attempted to cross over this common, or to find an outlet across the railroad tracks. In support of this view I need only cite, without extending this opinion to formally set it forth, the testimony of McColgan (9, 10, and 12), Donaldson (16 and 17), Hansell (28), Stewart (38, 40, and 42), James Loyd (53 and 55), Hall (60, 61, 62, 64, and 65), Jones (65 and 69), Morrow (71, 72, 73, and 75), Holden (12, 80, and 81), McAfee (129), Queen (152), Murphy (137, 139, 159, 339, 343, 349, and 352), Hendricks (187 and 189), Bryant (208, 287, 289, 290, 291, 292, and 293). Hankins (231), Vest (401), Harrison (436 and 442), Roberts (463 and 465), Bell (476), and Smith (477). This evidence establishes that many years ago, before the grading of North avenue, and its extension across the railroad tracks to Marietta street, persons were in the habit of crossing the right of way at some point, not at all definitely located, between where North avenue now crosses, and the land lot line between land lots 81 and 82. No particular place is shown to have been used for any definite time, or kept in repair by anybody. The evidence wholly fails to show any private way or public road or street across the Western & Atlantic right of way. This evidence fails to satisfy the demands of the law. Where a prescriptive right to a private way over land is asserted, it is necessary to show the uninterrupted use of a per

manent way, not over 15 feet wide, kept open and in repair for 7 years. It is not sufficient to show that those claiming the prescription have been accustomed for more than 7 years to pass over the land, changing the way as they saw fit, to avoid obstructions or for convenience."

Then two other questions on this branch of the case arose, which, it seems to me, will control in its determination. In the complainant's original petition to the superior court of the state, from which the case was removed to this court, he claimed that this east extension of Gray street was used in connection with an outlet over a strip of land between the Schofield Rolling-Mill property and the right of way of the Western & Atlantic Railroad. By a subsequent amendment he claimed that he had an outlet across the railroad into Marietta street, opposite East Gray street. Mr. Murphy sold the strip of land known as the "Schofield Rolling-Mill Tract" to John W. Johnston, under whom, it is admitted, the present railway company claims, and in his deed he conveyed all the land to the right of way of the Western & Atlantic Railroad; thereby parting with all his interest, by a fee-simple conveyance, in and to the part over which, in his original petition, he claimed an outlet from East Gray street. The special master holds him estopped from setting up any claim to an outlet over land which he had thus conveyed. The special master further finds that there was no outlet whatever across the Western & Atlantic Railroad into Marietta street, opposite to East Gray street, as claimed in complainant's amendment, and concludes that Mr. Murphy had no outlet whatever through East Gray street, and that the most that could be claimed for it was that it ran up to and abutted against the railroad right of way, and there ended. He further finds and concludes, as a consequence of this, that Mr. Murphy has not been damaged at all by the laying of the railroad tracks across this strip which is called "East Gray Street." On this subject the special master says:

"In what way is Mr. Murphy damaged by this occupancy upon the part of the railroad of this east extension of Gray street? He had no property abutting upon it. It led only through the property of the railway company. It led only to the property of the railway company. I cannot understand how

he was in any wise damaged by the act of the company in taking exclusive possession and control of it, and I therefore will report a finding that he is not in any wise damaged by the act of the railway company in laying their tracks across the east extension of Gray street."

This conclusion of the special master (which will be confirmed by the court) that Mr. Murphy has sustained no damage whatever on account of the occupancy by the railway company of what is called the "East Extension of Gray Street" renders unnecessary the decision of the questions heretofore mentioned. This outlet is of no benefit whatever to Mr. Murphy unless it leads in some way across the railroad tracks into Marietta street. The special master finds that it does not, and there is ample evidence to support his finding. Another finding of the special master is excepted to by both parties, and this is the allowance of $500 to Mr. Murphy for the actual invasion of the corner of one of the lots, which he undoubtedly owns, by the railway company, and digging down and carrying away his soil. The special master might have found something more, or