under the same, and had filed with the register of the land office at Gainesville, Fla., in the district where the land is located, a profile of its road, then it would be in condition to claim the benefits of said act: provided, no other claimant had in the meantime-that is, before the company permanently located and adopted its liné-acquired a title to the land superior to that of the company, if it had any.

Counsel for defendant (appellant here) insists that the persons who accept the bounty of the general government, in the way of a homestead, accept it subordinate to the general grant of 1875.

Homestead

er's superior

Admitting the correctness of this proposition, and still the fact remains that to make the right of the homesteader subordinate to the general grant, and to confer upon the railroad company the rights and powers claimed by it, it must have complied with the provisions right. of the act granting it the right of way over the land. To carry out the doctrine contended for by the defendant railroad company, after a homesteader has complied with all the requirements of the homestead laws, after he has filed his claim, made final proof, and received a patent for his land, a railroad company has the right under the act of March 3, 1875, without taking a single step entitling it to the benefits of said act, to enter upon the homesteader's land ad libitum, to damage his land, to destroy his crops, and the homesteader is remediless, because his claim is subordinate to the act of March 3, 1875. We can give our assent to no such doctrine. When the homesteader has complied with the terms of the bounty of the government, he has a right in his homestead that the laws will protect. His claim is only subordinate to that of a railroad company when that company has so complied with the law as to make the homesteader's claim subordinate to its own. Failing itself to comply with the terms of the grant of the right of way to railroad companies, the company has no right to assail the title of any one. The evidence, we think, clearly establishes the fact that, at least three months before the defendant railroad. company permanently located its line through the land described in the declaration, the plaintiff made his homestead entry, and that he thereby acquired an interest in the land that the railroad company was bound to respect.

The railroad company further insists that the right of the homesteader is only an inchoate right, which may never ripen into a perfect title or a greater right.

Admitting this proposition to be true, it does not confer upon the company the rights contended for here. It does not occupy such a position that it can raise such a question.

Continuing trespass

Statute of limitations.

The thirteenth paragraph of the court's charge is, in substance, that if the grievance complained of was a continuing trespass, the statute of limitations did not begin to run when the cause of action accrued, but that the action might be brought at any time during the continuance of the trespass, and that the plaintiff could recover damages for the whole time, whether the suit was commenced in the time prescribed by statute or not. This charge, we think, was erroneous. The statute (McClel. Dig. p. 733, § 10) provides that actions of trespass upon real property can only be commenced within three years. The suit before us was commenced July 7, 1887, and the declaration alleges that the defendant broke and entered the plaintiff's close on July 1, 1882, and alleges a continuous trespass upon his land by the defendant from the date of the alleged entry to the commencement of the suit. On the day of such entry by the defendant an action accrued to the complainant, and he could have brought successive suits against the defendant so long as the trespass continued. 1 Add. Torts, § 385, and cases there cited.

But the rule laid down in the cases cited supra does not authorize the plaintiff to recover in an action for trespass committed upon his land by the defendant, regardless of time, simply because it was a continuing trespass, nor do we know of any law authorizing such recovery. All claims of the plaintiff against the defendant for trespass upon plaintiff's land were barred by the statute within three years and the plaintiff could not recover damages which he sustained more than three years before he commenced suit. But if there was a continuing trespass, and the evidence tends to show that there was, the plaintiff was entitled to recover any damages he sustained in consequences of such trepass at any time within three years before the suit was commenced.

The amount of the judgment rendered was $600, and the evidence, we think, shows conclusively that the damages sustained by the plaintiff, resulting from the acts of the defendant, amounted to only $500. This is the estimate placed upon the damages by the plaintiff himself, and he should be bound by it, and the defendant also should be bound by it, because there is no evidence to show that plaintiff's estimate was not correct. Plaintiff estimates the damages for destruction of timber and cordwood on the right of way at $130, corn destroyed, $30, and rails and pasturage destroyed at $20,-making, in all, $180. This amount the plaintiff clearly was not entitled to, because the destruction of the property occurred when the defendant first entered upon the plaintiff's land, and hence it was barred by the statute. But as it may

be that the defendant, by its acts and implied promises of settlement, induced the plaintiff to postpone the commencement of his suit until a large part of his claim was barred, and as the plaintiff, under the evidence, was certainly entitled to some damages in consequence of the defendant's continuing trespass, and, as we do not think, under all the circumstances of the case, that damages to the amount of $320 would be excessive, and also for the purpose of saving the expense of further litigation, we will give the plaintiff the option to save his judgment for $320, and interest thereon from the rendition of the same, if he will enter a remittitur of $280 as of the date of said judgment. The order will be that the judgment stand as of the date it was rendered, if the plaintiff enter the remittitur indicated, but, failing to do this, within 30 days after the mandate of this court is received by the clerk of the circuit court, the judgment is reversed and new trial granted.

There are other questions raised to other parts of the court's charge, and refusals to charge as requested by defendant, but we do not consider it important to consider them.

Land Grants-Conflict Between Claims of Railroad and Homesteaders and Settlers. See note, 38 Am. & Eng. R. Cas. 676, note, I Id. 12; note, 12 Id. 284; Kansas Pac. R. Co. v. Dunmeyer, 5 Id. 417; Emslie v. Young, 5 Id. 422; Atchison, etc. R. Co. v. Rockwood, 5 Id. 432; St. Joseph, etc., R. Co. v. Baldwin, 5 Id. 408; St. Louis, etc. R. Co. v. McGee, 10 Id. 609; Northern Pac. R. Co. v. Peronto, 10 Id. 670; Rider v. Burlington & M. R. Co., Id. 688; Winona, etc., R. Co. v. Randall, 10 Id. 558; Atchison, etc., R. Co. v. Pracht, 12 Id. 267; Northern Pac. R. Co. v. Lilly, 24 Id. 111, note, 24 Id. 110-135; note, 25 Id. 115; Southern Pac. R. Co. v. Terry, 26 Id. 532. Land Grant to Northern Pacific-Location of Route-Approval-Branch to Portland.-Act Cong. July 2, 1864, granted public lands to the N. P. R. Co., and authorized it to construct a continuous line from Lake Superior, westerly, by the most eligible route, to be determined by said company, within the United States and on a line north of the forty-fifth degree of latitude, to some point on Puget Sound, with a branch via the valley of the Columbia River to a point at or near Portland, Or. Held, that it was optional with the company whether it would build the branch to Portland. The clause giving it authority to do so did not limit its right to choose any route, within the prescribed limits, between Lake Superior and Puget Sound.

Held also that Act. Cong. May 31, 1870, authorizing said company to locate and construct, under the provisions and with the privileges and grants provided in its act of incorporation, (Act Cong. July 2, 1864.) its main line to Puget Sound via the Columbia River, etc., is an approval and confirmation of the location of its line theretofore made by the company from Lake Superior via the Columbia River and Portland to Puget Sound. United States v. Northern Pac. R. Co., 41 Fed. Rep. 842.

Same-Certainty of Grant on Filing of Map-Neglect of Secretary of Interior.-Section 6 of said act provides that the president shall cause the lands to be surveyed for 40 miles on each side of the entire line of the road after the general route shall be fixed, "and the odd sections of land hereby granted shall not be liable to sale, entry, or pre-emption before or

after they are surveyed, except by said company." Held, that the act withdrew the lands from liability to pre-emption after the route should be fixed; and, on the filing by the company of a map of the route with the secretary of the interior, the grant became certain, and attached to the odd sections of the land within the 40-mile limit. When the route was adopted by the company, and a map designating it was filed with the secretary of the interior, the route became fixed, within the meaning of the act; and no subsequent neglect of the secretary could affect the rights of the company. United States v. Northern Pac. R. Co., 41 Fed. Rep. 842. Congressional Land Grant-Lieu Lands-Patent to Homesteader.-14 St. U. S. 292, granted to the Southern Pacific Railroad Company certain land, and provided that, in case any of said land should have been previously disposed of, the company should select other land in certain sections in lieu thereof. The secretary of the interior "withdrew" such sections, but afterwards allowed a homesteader to enter and obtain patent to a part of one of them. After the patent had issued, the company attempted to select this land, but was not allowed to do so. Held, that the company had no right to said land under the grant. Southern Pac. R. Co. v. Tilley, 41 Fed. Rep. 729.

COMMONWEALTH ex rel. ATTORNEY GENERAL

ข.

NEW YORK, LAKE ERIE & WESTERN R. Co. et al.

(Pennsylvania Supreme Court, March 3, 1890.)

Power of Railway Corporation to Hold Land-Escheat. Since that section of the Pa. Const. (Art. 17. § 5) which forbids certain corporations to hold lands except such as may be necessary for carrying on their businesses, affixes no penalty for its violation, lands held by a railway company in violation thereof do not thereby escheat to the state, although the franchises of the corporation are liable to be forfeited.

Same Title to Lands to be Escheated. Under a statute providing that all lands held by corporations in violation thereof shall escheat to the state, before there can be an escheat it must be shown that the corporation has the legal or the equitable title to the lands. If it has no title there can be no escheat.

Same Same "Device" for Holding Lands-Mining Stocks Owned by Railroad. The fact that a railroad company owns all the capital stock of a mining company, which it is authorized to do by law, does not give the railroad company title to the lands of the mining company so as to authorize their escheat to the state as being held by sucl. railroad company in violation of the Pa. Act of April 26, 1855, providing for the escheat of all lands held by corporations directly or by trustee or other device, unless specially authorized by statute to hold the same. Overruling Com. v. New York, L. E. & W. R. Co., 30 Am. & Eng. R. Cas. 136.

STERRETT and CLARK, JJ., dissent.

ERROR to Court of Common Pleas, Elk County.

George Biddle, John G. Hall, and George W. Biddle, for defend. ants in error.

Case stated.

PAXON, C. J.-This was an information in the nature of a quo warranto, filed by the attorney general, the object of which was to escheat to the commonwealth certain lands in Elk county, alleged to be held by or for the defendant railroad company. The facts, as disclosed by the evidence and admitted by the parties, do not differ essentially from those in Com. v. New York, L. E. & W. R. Co., reported in 114 Pa. St. 340, 30 Am. & Eng. R. Cas. 136. This is really a branch of the same proceeding, but for lands lying in a different county. The present case has been ordered of our own motion, and has received careful consideration. This was due to the gravity of the questions involved and the amount in controversy.

al provision

It was alleged, in the first place, by the commonwealth that the railroad company had violated § 5, art. 17, of the constitution of this state. The said section is as follows: "No incorporated company doing the business of Constitutiona common carrier shall, directly or indirectly, pros--No penalty ecute or engage in mining or manufacturing articles. for violation. for transportation over its works, nor shall such company, directly or indirectly, engage in any other business than that of common carriers, or hold or acquire lands, freehold or leasehold, directly or indirectly, except such as may be necessary for carrying on its business; but any mining or manufacturing company may carry the products of its mines and manufactories on its railroad or canal, not exceeding fifty miles in length." It will be noticed that this clause in the constitution affixes no penalty for its violation. It is conceded that, for a violation of the organic law, a Pennsylvania corporation, or a foreign corporation having or exercising corporate franchises within this commonwealth, would for feit such franchises. This, however, would not involve an escheat or confiscation of its property. For present purposes, we must regard this constitutional provision as out of the case. The question here is whether the real estate in controversy is liable to escheat.

Act of 1855.

This is not a proceeding to forfeit the company's franchises, but to escheat its lands. It must rest, if it can be sustained at all, upon the act of 26th April, 1855, (P. L. 329,) the fifth section of which provides that" no corporation * * * shall **** hereafter acquire and hold any real estate within this commonwealth, directly in the corporate name, or by or through any trustee, or other device whatsoever, unless specially authorized to hold such property by the laws of this commonwealth." This is the prohibition of the

The penalty for its violation is contained in § 9. It is as follows: "That all property hereafter acquired and held