Chief Justice Agnew
delivered the opinion of the court,
This was a proceeding to view and value land taken by the Nesquehoning Valley Railroad Company for its railroad, and to assess damages therefor. It came into the court below by appeal from the finding of viewers, and was tried before a jury.
As stated in the argument of the plaintiffs in error, there is a single question raised by all the assignments of error, to wit: whether the plaintiffs were the owners of the ties, rails and other structures placed on the land by the railroad company before the 3d of April 1874, the date of the verdict in ejectment. The facts are few, and fairly raise the question. The plaintiffs were the owners of a large tract of land lying at the entrance or “ key ” to the valley, and divided by the Nesquehoning creek, leaving fifty acres to the south of the stream, consisting of valley and timbered hillside. The railroad nearly bisects these fifty acres. In 1869 the railroad company endeavored to purchase the whole of this part, but owing to the large number of owners failed to do so. The company entered and built its road without objection, except it was notified to repair injuries to tenants. A bond was offered to the husband of one of the owners, who said he did not want it. The facts exhibit no outrage in the taking of the property, but the entry was clearly a trespass. No bond having been filed and approved according to law, the entry was irregular, and subjected the company to an action of ejectment, in which judgment was confessed April 3d 1874, and execution stayed until the proceeding to assess the damages should be completed.
The company being a trespasser, and the entry not in conformity [31]*31to law, the question is, whether this irregular proceeding operated as a dedication in law of the property in the ties and rails to the owners of the land, so as to entitle them to include these things in the assessment of the damages under the railroad law, and recover their value as an accession to the value of the land taken by the company. A careful consideration and analysis of the case before us will show that it differs in essential respects from that of a mere tort-feasor, whose structures upon the land of another enure to the benefit of the owner of the land.
The common-law rule is undoubted, that -a trespasser, who builds on another’s land, dedicates his structures to the owner. The reason is obvious, for like him who sows where he cannot reap, he obtain no advantage by his wrong, and having affixed his chattels to the realty, they become part of it, and he cannot add further injury by tearing them down. Even a tenant is to a modified extent affected by the same rule. If he improves under a covenant, the covenant governs his right of removal. So, if in favor of trade he erects structures for his business, doing no unnecessary or irreparable injury to the land, yet having done this without consent, he must remove his erections before the expiration of his term, otherwise he will be presumed to dedicate them to his lessor. There is also to be noticed a clear distinction between putting down a railroad track under a lease, and an act of appropriation of the land under a charter. This is clearly pointed out in Heise v. Pennsylvania Railroad Co., 12 P. F. Smith 67. The very intent of an appropriation of land, is to place upon it, and own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of the common law, so often commended by jurists, is its plasticity as a system of principles (and not merely of rigid rules), which can be adapted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended the conditions of former times, that to apply the rule as to a mere trespasser; whose entry is a tort pure and simple, to the case of one authorized to enter for a great public purpose, merely because of an irregularity in the manner of proceeding, would be as vain as to attempt to dress a full grown man in the garb of his childhood.
This is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the land taken for a public use — materials essential to the very purpose which the state has declared in the grant of the charter. It is true the entry was a trespass, by reason of the omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. For this [32]*32injury the citizen is entitled to redress. But his redress cannot extend beyon 1 his injury. It cannot extend to taking the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated to him ? In the case of a common trespasser, the owrner of the land may take and keep his structures nolens volens, but not so in this case; for though the original entry was a trespass, it is well settled, that the company can proceed in due course of law to appropriate the land, and consequently to reclaim and avail itself of the structures laid thereon. Harrisburg v. Crangle, 3 W. & S. 460; McClinton v. Railroad Co., 16 P. F. Smith 409; Railroad Co. v. Burson, 11 Id. 379. And in Harvey v. Thomas, 10 Watts 63, it was held that the subsequent proceeding to assess compensation, was a protection against a recovery of vindictive damages.
Another evident difference between a mere tort-feasor and a railroad company is this — the former necessarily attaches his structure to the freehold, for he has no less estate in himself, but the latter can take an easement only, and the structures attached are subservient to the purpose of the easement. A railroad company can take no freehold title, and when its proper use of the easement ceases, the franchise is at an end. There is no intention in fact to attach the structure to the freehold. We have therefore these salient features to characterize the case before us, to wit: the right to entelen the land under authority of law, to build a railroad for public use; the acquisition thereby of a mere easement in the land; the entire absence of an intention to dedicate the chattels entering into its construction to the use of the land; the necessity for their use in the execution of the public purpose; and, lastly, the power to retain and possess these chattels and the structures they compose, by a valid proceeding at law, notwithstanding the original illegality of the entry. Eor the latter the owner has his appropriate remedies ; his action of ejectment to recover and retain his land and its use, until the company shall proceed according to law, and his action of trespass to recover damages for the injury sustained by the unlawful entry and holding possession, and whatever loss has been caused by those illegal acts.
There are some analogies bearing remotely on the question before us, showing that property is not gained by the owner of land because found upon it. Thus, in the case of property carried off by a flood and stranded on the premises of another, the owner may follow it, enter and take it, or if the owner of the land convert it, may recover its value: Forster v. Bridge Co., 4 Harris 393; Etter v. Edwards, 4 Watts 63.
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Chief Justice Agnew
delivered the opinion of the court,
This was a proceeding to view and value land taken by the Nesquehoning Valley Railroad Company for its railroad, and to assess damages therefor. It came into the court below by appeal from the finding of viewers, and was tried before a jury.
As stated in the argument of the plaintiffs in error, there is a single question raised by all the assignments of error, to wit: whether the plaintiffs were the owners of the ties, rails and other structures placed on the land by the railroad company before the 3d of April 1874, the date of the verdict in ejectment. The facts are few, and fairly raise the question. The plaintiffs were the owners of a large tract of land lying at the entrance or “ key ” to the valley, and divided by the Nesquehoning creek, leaving fifty acres to the south of the stream, consisting of valley and timbered hillside. The railroad nearly bisects these fifty acres. In 1869 the railroad company endeavored to purchase the whole of this part, but owing to the large number of owners failed to do so. The company entered and built its road without objection, except it was notified to repair injuries to tenants. A bond was offered to the husband of one of the owners, who said he did not want it. The facts exhibit no outrage in the taking of the property, but the entry was clearly a trespass. No bond having been filed and approved according to law, the entry was irregular, and subjected the company to an action of ejectment, in which judgment was confessed April 3d 1874, and execution stayed until the proceeding to assess the damages should be completed.
The company being a trespasser, and the entry not in conformity [31]*31to law, the question is, whether this irregular proceeding operated as a dedication in law of the property in the ties and rails to the owners of the land, so as to entitle them to include these things in the assessment of the damages under the railroad law, and recover their value as an accession to the value of the land taken by the company. A careful consideration and analysis of the case before us will show that it differs in essential respects from that of a mere tort-feasor, whose structures upon the land of another enure to the benefit of the owner of the land.
The common-law rule is undoubted, that -a trespasser, who builds on another’s land, dedicates his structures to the owner. The reason is obvious, for like him who sows where he cannot reap, he obtain no advantage by his wrong, and having affixed his chattels to the realty, they become part of it, and he cannot add further injury by tearing them down. Even a tenant is to a modified extent affected by the same rule. If he improves under a covenant, the covenant governs his right of removal. So, if in favor of trade he erects structures for his business, doing no unnecessary or irreparable injury to the land, yet having done this without consent, he must remove his erections before the expiration of his term, otherwise he will be presumed to dedicate them to his lessor. There is also to be noticed a clear distinction between putting down a railroad track under a lease, and an act of appropriation of the land under a charter. This is clearly pointed out in Heise v. Pennsylvania Railroad Co., 12 P. F. Smith 67. The very intent of an appropriation of land, is to place upon it, and own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of the common law, so often commended by jurists, is its plasticity as a system of principles (and not merely of rigid rules), which can be adapted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended the conditions of former times, that to apply the rule as to a mere trespasser; whose entry is a tort pure and simple, to the case of one authorized to enter for a great public purpose, merely because of an irregularity in the manner of proceeding, would be as vain as to attempt to dress a full grown man in the garb of his childhood.
This is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the land taken for a public use — materials essential to the very purpose which the state has declared in the grant of the charter. It is true the entry was a trespass, by reason of the omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. For this [32]*32injury the citizen is entitled to redress. But his redress cannot extend beyon 1 his injury. It cannot extend to taking the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated to him ? In the case of a common trespasser, the owrner of the land may take and keep his structures nolens volens, but not so in this case; for though the original entry was a trespass, it is well settled, that the company can proceed in due course of law to appropriate the land, and consequently to reclaim and avail itself of the structures laid thereon. Harrisburg v. Crangle, 3 W. & S. 460; McClinton v. Railroad Co., 16 P. F. Smith 409; Railroad Co. v. Burson, 11 Id. 379. And in Harvey v. Thomas, 10 Watts 63, it was held that the subsequent proceeding to assess compensation, was a protection against a recovery of vindictive damages.
Another evident difference between a mere tort-feasor and a railroad company is this — the former necessarily attaches his structure to the freehold, for he has no less estate in himself, but the latter can take an easement only, and the structures attached are subservient to the purpose of the easement. A railroad company can take no freehold title, and when its proper use of the easement ceases, the franchise is at an end. There is no intention in fact to attach the structure to the freehold. We have therefore these salient features to characterize the case before us, to wit: the right to entelen the land under authority of law, to build a railroad for public use; the acquisition thereby of a mere easement in the land; the entire absence of an intention to dedicate the chattels entering into its construction to the use of the land; the necessity for their use in the execution of the public purpose; and, lastly, the power to retain and possess these chattels and the structures they compose, by a valid proceeding at law, notwithstanding the original illegality of the entry. Eor the latter the owner has his appropriate remedies ; his action of ejectment to recover and retain his land and its use, until the company shall proceed according to law, and his action of trespass to recover damages for the injury sustained by the unlawful entry and holding possession, and whatever loss has been caused by those illegal acts.
There are some analogies bearing remotely on the question before us, showing that property is not gained by the owner of land because found upon it. Thus, in the case of property carried off by a flood and stranded on the premises of another, the owner may follow it, enter and take it, or if the owner of the land convert it, may recover its value: Forster v. Bridge Co., 4 Harris 393; Etter v. Edwards, 4 Watts 63. And even a sale will not carry unknown secreted valuables: Hutmacher v. Harris, Adm’r, 2 Wright 491.
But a case bearing a close analogy, indeed deciding the principle [33]*33on which this case rests, is Meigs’s Appeal, 12 P. F. Smith 28. In the year 1862, the United States, in the prosecution of the war, erected buildings on the public common of York for military barracks and hospitals. After the close of the war the government was about removing the materials, when the borough authorities proceeded to enjoin the removal, on the ground that the buildings had been affixed to the realty. In that case we said, referring to Hill v. Sewald, 3 P. F. Smith 271, that the old notion of a physical attachment had long since been exploded in this state, and that the question of fixture, or not, depends on the nature and character of the act by which the structure is put in place, the policy of law connected with its purpose and the intentions of those concerned in the act. This language applies emphatically to the case now under consideration. It was further said then, the nature and character of the structures are also to be considered. They were not improvements made for objects connected with the soil — neither intended to give value to it, nor to receive value from it; so, precisely here, the railroad having no connection with the improvement of the land or its uses. “ The act,” (says the opinion), “ is distinguishable from that of an ordinary trespasser. There was no intent to improve the ground, or to make it accessory to some business or employment. It was not an assertion of title in the soil, or of an intention to hold adverse possession. Indeed there was not a single element in the case which characterizes the act of a tort-feasor, who annexes his structure to the freehold, and is therefore presumed to intend to alter the nature of the chattel and convert it into realty, and thereby to make a gift of it to the owner of the freehold.” This language strongly characterizes the case before us. Here as there the purpose is a public use; there was no intent to hold adversely as a trespasser, nor to improve the ground or make it useful and valuable by the erection. The rails and ties were not intended to be attached to the freehold, but were laid down as part of an easement under a franchise of the state. There was no intent to use the land as an owner would, and no intent to abandon the-materials to the use of the owner, but they were subject to a, legal proceeding resulting in maintaining both ownership and- use for the charter purpose. We think therefore the ownership of the rails, ties, &c., did not vest in the plaintiff in error by the mere trespass in the original entry.
Judgment affirmed.
Mercur and Gordon, JJ., dissenting.