street for acquire title within its bounds by purchase or condemnation. The survey in this case indicated only the center line of the route in courses and distances. By its charter the company could acquire 66 feet in width. What width it should take over the Brown tract was not fixed by the survey. It could only be fixed by the agreement of the owner or condemnation proceedings. Hetfield v. Central R. Co. of N. J., ubi supra. It was fixed by the acceptance of a deed for a width of 33 feet only. Morris & E. R. Co. v. Centra! R. Co., 31 N. J. Law, 205; Childs v. Central R. Co. of N. J., 33 N. J. Law, 323. In that width the railroad company acquired what right its grantor had. At the time its deed was accepted it must be conceded that Brown, its grantor, had done acts Dedication of raising a conclusive presumption of the dedication of the whole of Railroad avenue, except so far as railroad. the dedication was controlled and limited by the indications on the map that part of that avenue was to be used for a railroad. Now, while it is true that the charter of the New Jersey Railroad & Transportation Company provides that, upon condemnation, the company becomes seised and possessed in fee-simple of the lands condemned, yet condemnation was only to be resorted to when the lands had not been donated to the company or purchased by it at an agreed price. So it is obvious that the company could, if it chose, acquire by purchase just so much estate as was requisite for its purposes, and was not bound to purchase more. Besides, it is prescribed by a proviso to that section that, on an aban donment or cessor of use for a certain period, lands acquired by the company, whether "by concession or by inquisition,” shall revest in the person from whom the lands were taken, his heirs and assigns; so that if the 33-feet strip, this Railroad avenue, had been taken by condemnation, I think there would be no insuperable difficulty in holding that the company acquired a fee, but on abandonment or cessor of use the prior dedication would attach. But that strip was acquired by purchase; and, Brown's prior dedication being recognized, it is plain that the company acquired everything necessary for its purposes, for his dedication was cum onere, and the use as a public highway was subsidiary to the railroad use. The railroad company obtained by Brown's deed a perpetual right to use the strip granted for its purposes, with which use the dedication as a highway did not interfere. It will not operate on the land so granted until the railroad use is abandoned. Any other construction will, it seems to me, lead to the conclusion that, on the abandonment of the railroad, Brown or his heirs may rightly inclose or build upon the strip of 33 feet width in the center of this avenue, which plainly was never intended. Such a dedication may well be accepted by the public. As the railroad right is admittedly paramount to the easement as a highway, the acceptance would not at all derogate from the public grant to the railroad company. Presumption of dedication What has been already said partially indicates my view of the second point pressed in argument. The presumption of the dedication of Railroad avenue as a single street of 100 feet in width was before deemed to arise on the facts that Brown sold lots fronting not repelled. thereon, and had delineated it on his map as a single street, with a single name, with a uniform and desig nated width, which extended over and included the portion which was indicated as intended for railroad use. In my judgment that presumption is not repelled by the circumstance that the railroad company could then have acquired by condemnation a fee-simple. Had it taken its land by condemnation, I think Brown might well be deemed to have impressed on such interest as might afterwards revest in him a dedication to public use as a highway. In granting that land to the company after dedication, there is, of course, nothing to detract from the inference to be drawn from his previous acts. The company, by accepting the grant, elected to take what Brown could give, and his grant was consistent with a previous intent to dedicate. The suggestion that the railroad use of 33 feet is incompatible with the use thereof as a highway, and therefore that it may be inferred that Brown did not intend to create the latter use by dedication, is not apposite. In 1835 that incompatibility does not seem to have been recognized. By the charter in question the railroad company was authorized to acquire the turnpikes on its route, and it is well known that its railroad was constructed and is now maintained on such turnpikes, which were used for many years by the side of the tracks. But in the view of the case I have taken the railroad use is admitted to be paramount and exclusive of the other use so long as it continues. The case in hand is not, in my judgment, distinguishable from the case previously decided in respect to the dedication. Effect of previous It only remains to consider the effect of the previous filing of the railroad survey upon the construction of the deed under which plaintiff holds, and which bound her property on the side of Railroad avenue. By the doctrine established by this court in Salter v. Jonas, 39 N. J. Law, 469, such deeds are to be construed as embracing in their description all lands of the grantor within the lines of the street, between the property and the center line of the street, unless there are express filing of survey. words excluding such construction, or peculiar circumstances indicating a contrary intent. These deeds contain no words of exclusion. The map, which was one of Brown's acts from which dedication is inferred, showed an intent to devote part of the avenue to railroad uses. Therefore it must be inferred that he intended to retain what power was necessary to affect that purpose. But, as we have seen, it was not necessary that he should have the fee-simple title. It was sufficient that he should retain the right to devote to railroad uses such width as he and the railroad company should agree upon. If the company desired more, it could have resorted to condemnation. The circumstances do not therefore indicate an intent to retain what was unnecessary, or to deprive his grantees of abutting lots of what was necessary to their protection. There is therefore nothing to prevent the application of the doctrines of Jonas v. Salter to this case. The result is that upon the facts plaintiff established her title to the land in question, and was entitled to a finding in her favor against defendant, which had encroached thereon with its track. The judgment should be reversed with costs, and a venire de novo should follow. Dedication of Land for Railroad-Reservation in Plat.-See ante Watson v. Chicago, M. & St. P. R. Co., and note pp. 543, 548. LEROY & CANEY VALLEY AIR-LINE R. Co. et al. v. SMALL. (Kansas Supreme Court, May 9, 1891.) Right of Way Procured by Contractors-Failure of Company to Fulfill Contract. Where a railroad company authorizes its contractors employed by it to construct its railroad to procure the right of way for it, which they are to do at their own expense, and the contractors, through their agent, in the name of the railroad company, procure a right of way through the plaintiff's premises by contract, and afterwards, by reason of such contract, procure only nominal damages to be assessed by the condemnation commissioners for such right of way, and this assessment of damages is all done without the knowledge or consent of the owner, and the railroad is constructed by the contractors, and afterwards operated by the railroad company, but it fails to fulfill the contract, held, that the owner may recover substantial damages from the railroad company, if it elects to retain the right of way. ERROR from District Court, Wilson County. J. H. Richards and C. S. Reed, for plaintiff in error. Case stated. VALENTINE, J.-This was an action brought in the district court of Wilson county by O. V. Small against the Leroy & Caney Valley Air-Line Railroad Company and the Missouri Pacific Railway Company, in which the plaintiff alleged, among other things, that the defendants had constructed their railroad across his land under a contract; that they had not fulfilled their contract, but had committed a breach thereof; that they had procured condemnation proceedings to be instituted and carried on to consummation without his knowledge, in which he was allowed only nominal damages; that he had received no compensation for his losses; and asked that the condemnation proceedings be set aside, and for general relief. The case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff, and against the defendants, that they should pay him the sum of $1,200 within 60 days, or relinquish their right of way; or, if they should do neither, then that the plaintiff should recover of and from the defendants the sum of $1,200; and the defendants, as plaintiffs in error, bring the case to this court for review. It appears from the pleadings and the evidence, among other things, that the Leroy & Caney Valley Air-Line Railroad Company was organized in 1885 for the purpose of constructing a line of railroad from a certain point in Wilson county to Elgin, in Chautauqua county. The company was composed entirely of persons living along the line of the proposed railroad. Some time afterwards a committee was sent by the company to New York city, which, in pursuance of their authority, succeeded in procuring the Missouri Pacific Railway Company and one Warren H. Loss to enter into a written contract with this new company for the purpose of constructing this new line of railroad. By the terms of the contract, Loss was the contractor to construct the railroad, and was also to procure the right of way for the railroad companies, at his own expense. Afterwards he assigned all his rights and interests under the contract to Simmons & Sidell, a partnership firm composed of James A. Sinamons and Cornelius V. Sidell, who afterwards constructed the railroad under the contract. Prior, however, to their construction of the railroad, they employed Isaac Hudson to procure the right of way through Wilson county. Commissioners were also appointed to procure the right of way through that county by virtue of condemnation proceedings. Hudson afterwards, for the contractors and the railroad companies, entered into the contract sued on, which was and is a contract with the plaintiff, Small, and his wife for a right of way through Small's premises. Upon the face of this contract, Small and wife were the parties of the first part, and the Leroy & Caney Valley Air-Line Railroad Company was the party of the second part, and the right of way was procured for such railroad company. The contract, however, was not signed by either of the railroad companies, nor by Hudson, nor by the contractors, but only by Small and wife. The commissioners appointed to procure the right of way were instructed by Hudson, on account of said contract with Small and wife, to assess only nominal damages for the right of way through Small's land, and through other lands where similar contracts had been entered into between Hudson and the owners of the lands; and the commissioners in fact assessed only nominal damages for the right of way through Small's land, to wit, $1 for one quarter section of land, $1 for a half quarter section of land and $80 for another half quarter section of land, and nothing for the remainder. Small had no knowledge of this assessment until after it was too late to take an appeal, and therefore never took an appeal. The railroad was afterwards constructed by the contractors, and is now operated by the railroad companies. The Leroy & Caney Valley Air-Line Railroad Company was and is the nominal owner thereof, but the Missouri Pacific Railway Company was and is the real owner thereof. The first alleged error is the ruling of the court below, refusing to strike from the files the plaintiff's amended petition. This amended petition had been filed upon leave Amendment of the court previously given, but it is claimed of pleading. that it is a departure from the original petition. It is not such a departure, however, from the original petition as to make it objectionable; besides, the allowing of amendments to pleadings by the trial court is very largely within its discretion, and so much so that it is very seldom that a reviewing court can say that error has been committed in such cases. The reviewing court cannot do so unless it can say that the trial court has abused its discretion. We cannot say so in this case. There are various other complaints made concerning the various rulings of the court below, but they do not require any separate or special consideration. Grouping Right of way the most of them together, we think they amount substantially to this: It is claimed that, as the con procured by contract. tract with Small and wife for the right of way through his premises was not signed by either of the railroad companies, nor filed for record in the office of the register of deeds, nor made by any direct agent of either of the railroad companies, but only by an agent of the contractors, it cannot affect any of their rights or interests in the least. It was alleged, however, in the plaintiff's petition that the contract |