mortgage, and the purchaser at the foreclosure sale claimed title to the land. Held, that the president's grantee had the superior title. Adverse Possession-From What Time Possession of Railroad Dates Under Grant of Right of Way.-Possession by a railroad company and its successors under a grant which contemplates the construction and operation of a railroad, dates from the time construction commences, and not merely from the time the road is completed, and trains begin to run. Georgia Pac. R. Co. v. Strickland, 80 Ga. 776. Deed from Railroad Company to Union Depot Company-Exclusive use of Tracks-Construction.-In St. Paul M. & M. R. Co. v. St. Paul Union Depot Co., 44 Minn. 325, a deed of conveyance from the St. Paul, Minneapolis & Manitoba Railway Company to the St. Paul Union Depot Company, and a lease from the latter company to the former, was considered and construed with reference to the rights of the first-named corporation to the exclusive use and occupation of certain specified railway tracks and adjoining platforms in the train-house, or annex to a depot building. Right of Way-Submission of Amount of Damages to Arbitration--Enforce⚫ ment of Award.-In an action for the recovery of damages occasioned by the appropriation of plaintiff's land for the right of way for a railroad company, without making compensation, the answer of the defendant company sets up a good defense, when it alleges that the amount of damages to be paid for such right of way have been submitted to arbitration under an agreement between the plaintiff and a contractor, who had agreed to obtain a right of way; that the arbitrators had made an award; and that the contractor had been, and is ready and willing to fulfill the same, and before the commencement of the action had tendered the amount of the award to plaintiff, which had been refused. Such a submission to arbitration is a bar to plaintiff's action, although the award has not been performed. APPEAL from Marshall County Circuit Court. Case stated. COFFEY, J.-The complaint in this cause consists of two paragraphs. The first is a complaint in ejectment, in the usual and ordinary form. The second seeks to recover from the appellant damages occasioned by the appropriation of the land therein described for the right of way for a railroad track, and the use of the same for that purpose. The third paragraph of the appellant's answer avers that the appellant employed one Toner to obtain the right of way for its road, and to construct its roadbed over the lands of the appellee; that the roadbed was constructed over and across said land under a license so to do, but without any assessment or agreement in relation to the damages occasioned thereby; that, on the 14th day of October, 1887, the said Toner and the appellee entered into a written agreement, by the terms of which they agreed to and did submit the question of damages occasioned by the construction of said road to Charles E. Toan and D. A. Snyder, and agreed to abide by the assessment so made by them; that the appellee agreed to execute to appellant a written release to said right of way, and that the said Toner agreed to pay the appellee upon the execution of said release, the amount of damages so assessed by the said Toan and Snyder; that, on the 17th day of October, 1877, said Toan and Snyder met and assessed said damages at the sum of $100, and made and signed a written statement thereof; that said Toner has at all times since said assessment was so made been ready and willing to pay said sum of $100 upon the execution of said release, and before the commencement of this suit tendered to the appellee said sum, which the appellee refused. Copies of said agreement and written award are filed with and made a part of this answer. The court overruled a demurrer to this answer, whereupon the appellee replied by a general denial. A trial of the cause by a jury resulted in a verdict. for the appellee for the sum of $300, upon which the court over a motion for a new trial, rendered judgment. The appellant, by a proper assignment of error, calls in question the ruling of the circuit court in overruling its motion for a new trial, while the appellee, by assignment of cross-error, calls in question the propriety of the decision in overruling the demurrer to the third paragraph of the answer. The first question, in the natural order, demanding consideration, is the question raised by the assignment of cross-error. The facts disclosed by the third paragraph arbitrationAnswer set of the answer constitute a good common-law arbi- Submission to tration. Titus v. Scantling, 4 Blackf. 89; Hays v. Miller, 12 Ind. 187; Forqueron v. Van Meter, 9 up good deInd. 270; Coffin . Woody, 5 Blackf. (Ind.), 423; fense. Moore v. Barnett, 17 Ind. 349. The submission of the cause of action set up in the complaint to arbitration and award thereon is a bar to such cause of action, though the award has not been performed. Walters 2. Hutchins' Adm'rx, 29 Ind. 136; Armstrong v. Masten, 11 Johns. 189; Jessiman v. Haverhill & F. Iron Manufactory, 1 N. H. 68. This answer, therefore, constitutes a complete defense to the cause of action contained in the second paragraph of the appellee's complaint, provided it is sufficiently shown that the appellant stood in a situation to avail itself of the submission and award, If Toner was a mere stranger and volunteer, with no power to bind the appellant, the arbitration and award would be no defense for the appellant, unless it afterwards ratified his acBut even if Toner had no interest in the controversy, and no power to bind the appellant, as he acted upon its behalf and for its benefit, if it afterwards ratified his conduct, the submission and award became binding on both it and the appellee. 6 Wait, Act. & Def. pp. 506-510. It is important, therefore, to a correct decision of the question before us, to ascertain the relation in which the appellant stood to the matter submitted to arbitration. The agreement to submit the damages in controversy to arbitration is signed by Toner and the appellee, and is filed with and made a part of this answer. This agreement recites the fact that the appellee was about to institute suit against the appellant to recover damages on account of the appropriation of the land described in the complaint for the construction of its road without first. causing the damages to be assessed and tendered; that the road was constructed by Toner, who had obligated himself to the appellant to obtain the right of way for the construction of the road, and had failed to obtain such right over the lands of the appellee; and that to prevent litigation and delay, and the expense incident thereto, the question of the amount of damages sustained by the appellee on account of such appropriation is submitted to two citizens of Marshall county, named in the agreement. As to the facts recited in the agreement the parties must be held as concluded. Forqueron 7. Van Meter, supra. It will thus be seen that the appellant was directly interested in the settlement of the matters submitted to arbitration by the appellee and Toner. The amount of damages sustained by the appellee on account of the appropriation of his land for the use of the appellant's road was a claim against the appellant which it was bound to pay. It further appears that Toner was authorized by the appellant to procure the right of way for its road. and the appellant is now here claiming the benefit of the award, thus fully ratifying Toner's action. In our opinion, it not only sufficiently appears that Toner had authority to act for the appellant, but that the appellant is willing to abide by the submission made by him. The third paragraph of the answer, we think, states facts sufficient to bar the cause of action set up in the second paragraph of the complaint. The evidence in the cause fully sustains the material averments in the answer. Indeed, there is no controversy about the fact that the claim for damages involved in this action was submitted to arbitrators, and an award made, as averred in the answer; and that the award and the agreement to submit were at once delivered to and retained by the attorney of the appellee. Some controversy was made over the question of a tender to the appellee, and there is some conflict in the evidence upon that subject, but there is no controversy over the fact that the appellee is a non-resident of the state, and that the amount of the award was tendered to his attorney before the commencement of this suit. In our opinion, the verdict of the jury is not supported by the evidence. Judgment reversed, with directions to grant a new trial. NEW YORK, SUSQUEHANNA & WESTERN R. Co. ข. TRIMMER. (New Jersey Supreme Court, November 11, 1890.) Ejectment-Power to Maintain for Lands Condemned.—A railroad company may maintain ejectment for lands condemned for its use under the New Jersey General Railroad Act. CASE Certified from Warren County Circuit Court. Wm. H. Morrow, for defendant. sented. BEASLEY, C. J.-The single question to be decided in this case is whether an action of ejectment will lie on the part of a railroad company for lands condemned by commissioners for its use by force of the provision for Question prethat purpose contained in the general railroad act. This inquiry seems to be one of first impression. It is certainly such so far as this court is concerned. The objection to the present form of action is that the railroad company, the plaintiff, has "not title to the premises in question, but only an easement in them;" and it is insisted that it is entirely settled that ejectment will not lie founded on such a right. There can be no doubt that the rule that ejectment is not the appropriate remedy when the enjoyment of an easement is the subject of suit has been often stated and is in ro Ejectment for wise questionable. But the interest in the lands. now in question is not an easement. In cases of easements there must be not only a servient tenement, but also a dominant one, and which latter constituent is entirely lacking in the present instance. A right of way to constitute an easement must be beneficial to other land not owned by the proprietor of the premises burdened. It follows, there easement. lands con demned. This is fore, that the rule appealed to by the counsel of the defendant can be of no avail, unless it can be shown that the reason that occasioned it is applicable to the right in this land that is vested in the plaintiff. The action of ejectment is, and long has been, the legal mode whereby a person having the right in law to the immediate possession of land from which he is kept, enforces such right. It is a possessory remedy and can be resorted to only when a right of entry exists, and where the thing or interest is tangible, so that possession can be given by the sheriff. It is manifest, therefore, that if the interest of the railroad company in these premises were a naked right of way, it would constitute no such right of Ejectment for possession of the land itself as would sustain this action; for such a right would be an incorporeal one upon which there could be no entry, nor could possession of it be given under an habere facias possessionem. But, manifestly, such is not the right in this land that is vested in.this company, for can it be denied that the corporation has a right to enter upon it, and that a judgment in its favor could be executed by the officer putting it in possession? Unlike the use of a private way that is discontinuous the use of land condemned by a railroad company is perpetual and continuous; so the latter is likewise necessarily exclusive. the doctrine strongly presented in the case of De Camp v. Hibernia R. Co., 47 N. J. Law, 55, for it was there declared that the company, by force of this statutory procedure, could not acquire a qualified right in the lands, the court saying: "The statute only authorizes the taking of lands, and the occupation and use of lands, in the state and condition of lands in the legal sense of that term." A reference to the statute by virtue of which the company has acquired its right in this property will at once make manifest the propriety of the view thus adopted. It is the twelfth section that prescribes the mode to be pursued in case the company cannot agree with the owner of the lands required. Commissioners are to be appointed who are to appraise the land or materials, and to assess the damages. The statute then declares, to use its own language, "and thereupon and on payment, or tender of payment, of the amount awarded as hereinafter provided, the said company is hereby empowered to enter upon, and take possession of, the said lands and materials for the purposes aforesaid, and the said report," etc., "and proof of payment or tender of the amount awarded shall at all times be considered as plenary evidence of the right of any company incorporated under this act to have, hold, use, occupy, possess, and enjoy the said land or materials," etc. There seems to be no reason why this language as it stands in this statute is to be |