Mr. Justice Clark
delivered the opinion of the court,
This is a proceeding under the general railroad law, for the assessment of damages to Frauds J. Obert, for a strip of land in the city of Reading, taken and appropriated by the Philadelphia & Reading Railroad Company for an additional track. The plaintiff claims that he is the owner of the land in question, and that ho is entitled to recover the damages which he has suffered in consequence of such appropriation. The defendants deny that he is, or ever has been, the owner, and claim that the title thereto became vested in the defendants, in fee simple, under a deed of Henry Hahs, dated 11th August, 1885, and that the additional track was, in fact, laid upon their own ground.
It is admitted, that at the time of the original location of the Philadelphia & Reading Railroad, in the year 1835, Henry Hahs was the owner of a lot of land, embracing the premises in dispute, and that by deed dated as aforesaid, he conveyed a portion thereof to the company, described as follows: “All that certain piece or parcel of land situate in the borough of Reading, Berks county, comprehending and being the laud oil [202]*202which the said Philadelphia & Reading Railroad is located, and about being constructed, on and through the lot of land of the said Henry Hahs.”
Subsequently, on the 12th July, 1839, Hahs conveyed his land, lying east of the location of the railroad, to Dr. Hiester H. Muhlenberg, according to certain lines, with the courses and distances given; the western line of the land conveyed being “along the eastern bank of the railroad, south 14-|- degrees west, 15£ perches,” &c. On the 31st May, 1854, Muhlenberg conveyed the same and other lands to Robert Tibbets, from whom the plaintiff derived his title. In the last mentioned deed, and in the deed to Tibbets the land is described as bounded “ on the west and northward by the Philadelphia & Reading Railroad, and the branch railroad leading to the Cotton Mill.”
Thus it appears that the company purchased, and now own in fee simple, the ground covered by their location, and the eastern line of that location is the western line of the plaintiff’s land. There cannot be any intervening land, for although the lines in the deed from Hahs to Muhlenberg are descriptive, by courses and distances, it is clear that the conveyance is to the railroad line. The vital question in the cause is, therefore, as to the actual original location of the railroad, and the extent of the appropriation to it.
It will be observed that the deed to the company is not descriptive of the land convejred, further than that it is for that part of the lands of Hahs, “ on which the Philadelphia & Reading Railroad is located, and about being constructed.” The drafts of the original location, if there be any in existence, have not been given in evidence ; and as no particular marks or monuments are found upon the ground, it is very difficult now, after the lapse of fifty years, to determine either the exact location or the extent to which lands were appropriated.
By the charter the company was fully empowered “to enter in and upon, and occupy all lands on which the said railroad or its depots and warehouses may be located, or which may be necessary,” &c., “provided, that the said railroad shall not, except in deep cuts and fillings, or at points selected for depots, or engine and water stations, exceed four rods in width,” &c.
In the condemnation of property for railroad purposes under the charter, the company had full power to appropriate such width of property as would furnish four rods of an actual roadbed; and if, for a proper consideration, the land owner should re-lease the right of way, or convey the lands to be covered by the location, without designation of lines, or re[203]*203striction as to width, the company could, without doubt under the re-lease or conveyance, appropriate to the extent fixed by the statute; the writing may well be presumed to have been made with reference to the law as it existed at the time.
The deed from Hahs to the company, although indescriptive in form, designating the lands covered by the location in the most general terms, would appear to refer to a location already made upon the ground; it was for the land on which the railroad “ is located and about being constructed.” If the railroad was at the time, in fact located, the reference became a descriptive part of the subject of the conveyance, and when we come to construe the effect of the conveyance, the inquiry must be as to the actual location at the time. It was competent of course for the company to construct its road, in whole or part, upon a location of less than four rods; that was merely the legal limit, which except for cuts, fills, &c., the company could not exceed ; and wo can see no ground when the question is raised collaterally, for the presumption, in the absence of proof, that the taking was to the full extent allowed by law. In the ease of Prather v. West. Union Tel. Co., 14 Am. & Eng. R. R. Cases, 1, cited by the plaintiff in error, it was held, that “where by statute a railroad company is authorized to appropriate for its right of way a strip sixty feet in width, and it enters upon land whereon it builds its road but does no act indicating clearly the breadth of the strip taken, it will be inferred that the company has appropriated a strip as wide as is permitted by the statute.” But, in that case, the charter to the Jeffersonville Railroad Company was for the construction of a railroad “ sixty feet wide ; ” this was the width which the legislature fixed and determined upon as tho proper and necessary width of the contemplated railroad; authorizing the company, however, in the prosecution of its enterprise, to enter upon, take, and hold in fee simple, real estate of a less width than sixty feet, if its president and directors might deem such action necessary. “It might have limited its appropriation,” says the court in that ease, “ at the time it was made, to a width less than sixty feet; but not having done so, it must be conclusively presumed, we think, that by its entry upon, and its construction of its road over and through the lands of Prather, the railroad company appropriated, took and held such lands to the full width allowed by its charter, namely, ‘ sixty feet wide.’ ”
In this case, however, the defendants were authorized to construct a railroad, not “four rods wide,” but one that shall not “exceed four rods in width; ” the distinction is obvious and it is clear that the case cited does not sustain the principle contended for. If this were a proceeding to assess dama[204]*204ges for the original taking, and the company bad entered upon, and constructed their road over the plaintiff’s land, doing nothing to indicate an appropriation less than four rods in width, it would be presumed, of course, in the first instance, that the taking was to the full extent allowed by law, because until the company, by some decisive act, has chosen to take less, it is entitled to the full width ; after the purchase of the right of way, however, in a contest involving its lines, the company must establish the extent of its ownership in the same manner, and according to the same measure of proof as others.
Preliminary to the question of damages, of course, is that of the plaintiff’s title; the claimant of compensation must aver and prove his title, but proof of possession by actual occupancy, under a claim of title, for thirty or forty years as in this case, in a proceeding to assess damages, would certainly b
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Mr. Justice Clark
delivered the opinion of the court,
This is a proceeding under the general railroad law, for the assessment of damages to Frauds J. Obert, for a strip of land in the city of Reading, taken and appropriated by the Philadelphia & Reading Railroad Company for an additional track. The plaintiff claims that he is the owner of the land in question, and that ho is entitled to recover the damages which he has suffered in consequence of such appropriation. The defendants deny that he is, or ever has been, the owner, and claim that the title thereto became vested in the defendants, in fee simple, under a deed of Henry Hahs, dated 11th August, 1885, and that the additional track was, in fact, laid upon their own ground.
It is admitted, that at the time of the original location of the Philadelphia & Reading Railroad, in the year 1835, Henry Hahs was the owner of a lot of land, embracing the premises in dispute, and that by deed dated as aforesaid, he conveyed a portion thereof to the company, described as follows: “All that certain piece or parcel of land situate in the borough of Reading, Berks county, comprehending and being the laud oil [202]*202which the said Philadelphia & Reading Railroad is located, and about being constructed, on and through the lot of land of the said Henry Hahs.”
Subsequently, on the 12th July, 1839, Hahs conveyed his land, lying east of the location of the railroad, to Dr. Hiester H. Muhlenberg, according to certain lines, with the courses and distances given; the western line of the land conveyed being “along the eastern bank of the railroad, south 14-|- degrees west, 15£ perches,” &c. On the 31st May, 1854, Muhlenberg conveyed the same and other lands to Robert Tibbets, from whom the plaintiff derived his title. In the last mentioned deed, and in the deed to Tibbets the land is described as bounded “ on the west and northward by the Philadelphia & Reading Railroad, and the branch railroad leading to the Cotton Mill.”
Thus it appears that the company purchased, and now own in fee simple, the ground covered by their location, and the eastern line of that location is the western line of the plaintiff’s land. There cannot be any intervening land, for although the lines in the deed from Hahs to Muhlenberg are descriptive, by courses and distances, it is clear that the conveyance is to the railroad line. The vital question in the cause is, therefore, as to the actual original location of the railroad, and the extent of the appropriation to it.
It will be observed that the deed to the company is not descriptive of the land convejred, further than that it is for that part of the lands of Hahs, “ on which the Philadelphia & Reading Railroad is located, and about being constructed.” The drafts of the original location, if there be any in existence, have not been given in evidence ; and as no particular marks or monuments are found upon the ground, it is very difficult now, after the lapse of fifty years, to determine either the exact location or the extent to which lands were appropriated.
By the charter the company was fully empowered “to enter in and upon, and occupy all lands on which the said railroad or its depots and warehouses may be located, or which may be necessary,” &c., “provided, that the said railroad shall not, except in deep cuts and fillings, or at points selected for depots, or engine and water stations, exceed four rods in width,” &c.
In the condemnation of property for railroad purposes under the charter, the company had full power to appropriate such width of property as would furnish four rods of an actual roadbed; and if, for a proper consideration, the land owner should re-lease the right of way, or convey the lands to be covered by the location, without designation of lines, or re[203]*203striction as to width, the company could, without doubt under the re-lease or conveyance, appropriate to the extent fixed by the statute; the writing may well be presumed to have been made with reference to the law as it existed at the time.
The deed from Hahs to the company, although indescriptive in form, designating the lands covered by the location in the most general terms, would appear to refer to a location already made upon the ground; it was for the land on which the railroad “ is located and about being constructed.” If the railroad was at the time, in fact located, the reference became a descriptive part of the subject of the conveyance, and when we come to construe the effect of the conveyance, the inquiry must be as to the actual location at the time. It was competent of course for the company to construct its road, in whole or part, upon a location of less than four rods; that was merely the legal limit, which except for cuts, fills, &c., the company could not exceed ; and wo can see no ground when the question is raised collaterally, for the presumption, in the absence of proof, that the taking was to the full extent allowed by law. In the ease of Prather v. West. Union Tel. Co., 14 Am. & Eng. R. R. Cases, 1, cited by the plaintiff in error, it was held, that “where by statute a railroad company is authorized to appropriate for its right of way a strip sixty feet in width, and it enters upon land whereon it builds its road but does no act indicating clearly the breadth of the strip taken, it will be inferred that the company has appropriated a strip as wide as is permitted by the statute.” But, in that case, the charter to the Jeffersonville Railroad Company was for the construction of a railroad “ sixty feet wide ; ” this was the width which the legislature fixed and determined upon as tho proper and necessary width of the contemplated railroad; authorizing the company, however, in the prosecution of its enterprise, to enter upon, take, and hold in fee simple, real estate of a less width than sixty feet, if its president and directors might deem such action necessary. “It might have limited its appropriation,” says the court in that ease, “ at the time it was made, to a width less than sixty feet; but not having done so, it must be conclusively presumed, we think, that by its entry upon, and its construction of its road over and through the lands of Prather, the railroad company appropriated, took and held such lands to the full width allowed by its charter, namely, ‘ sixty feet wide.’ ”
In this case, however, the defendants were authorized to construct a railroad, not “four rods wide,” but one that shall not “exceed four rods in width; ” the distinction is obvious and it is clear that the case cited does not sustain the principle contended for. If this were a proceeding to assess dama[204]*204ges for the original taking, and the company bad entered upon, and constructed their road over the plaintiff’s land, doing nothing to indicate an appropriation less than four rods in width, it would be presumed, of course, in the first instance, that the taking was to the full extent allowed by law, because until the company, by some decisive act, has chosen to take less, it is entitled to the full width ; after the purchase of the right of way, however, in a contest involving its lines, the company must establish the extent of its ownership in the same manner, and according to the same measure of proof as others.
Preliminary to the question of damages, of course, is that of the plaintiff’s title; the claimant of compensation must aver and prove his title, but proof of possession by actual occupancy, under a claim of title, for thirty or forty years as in this case, in a proceeding to assess damages, would certainly b e prima fade evidence of title. Assuming that a railroad is in a qualified sense a public highway, held under the Commonwealth’s right of eminent domain, under the charter, and that title to the lands covered by the location as against the company could not be acquired bj^ adverse possession, the exhibition of such a prima facie right devolved upon the company, the burden of proof that the lands in question were embraced in that location ; until that fact did appear the principle of law invoked could have no application to the case.
What land then did the company at the time, and in this particular place, appropriate and actually embrace in the location ? This was the substantial inquiry in the cause, and was one for the consideration of the jury, to be determined under all the evidence in the case.
To establish the true location of a railroad in Pennsylvania, is a matter peculiarly within the power of the railroad company; there is not, and never has been, any requirement, that the location should be any where filed, or recorded, for the benefit of parties interested. The papers indicating the lines are the property of the company, and are ordinarily inaccessible to persons having no connection with the company; but in this case we are furnished with no maps or papers exhibiting the original location, and there are, as we have said, no monuments on the ground.
The company contends that the eastern line of the railroad is fixed by the deed from Hahs to Muhlenberg, dated 12th July, 1839. The description given in that deed begins at “ a post in a line of South street; ” but where this point is, was and still is a. matter of serious dispute; the location of the line “along the eastern bank of the railroad, south fourteen and a fourth degrees west, fifteen and one fourth perches,” [205]*205depends of course upon the place of beginning. The defendants say, that this “ post ” is a point in the line of South street, at the west side of the,old Lewis Ferry road; whilst the plaintiffs contend, that it is a point one and nine tenths perches west of that road. The survey shows that if the lines are run according to the plaintiff’s contention, the line referred to would, as we understand it, run near to, but not with an “ old fence,” which the plaintiff claims to have been the line, and would include the ground taken for the additional track; but, beginning at the point claimed by the defendants, the survey will exclude that ground. The proper location of the lines was for the jury; that the question was not discussed at the trial is perhaps unfortunate, but is not ground for complaint here. The rights of the railroad company are to be measured by the deed of Hahs to the company, and the location therein referred to. and not by any subsequent deed conveying the residue. But as one of the lines of the deed to Muhlenberg is “ along the eastern bank of the railroad south fourteen and one fourth degrees west, fifteen and one fourth perches,” the courses and distances of that deed, being the deed under which the plaintiff claims title, may furnish some evidence as to where that location actually was. The description might be deemed equivalent to a deliberate statement of the parties to it, that a line running from the northwest corner of the lot conveyed, with the bearing south fourteen and one fourth degrees west, would run along the eastern bank of the railroad. But no principle in the nature of an estoppel could apply, as no one appears to have acted upon the admission to his injury. The evidence was, therefore, not of a conclusive character; this statement of the parties was simply to be taken with other evidence in the cause, to determine tlie precise location of the railroad line; because if the courses and distances of the deed did exclude the land in dispute, they would yield to the call for the eastern bank of the railroad, if the location of that bank could be otherwise clearly established.
Tt appears that by the deed of Hahs to the company, it was provided that Halis was “to make and keep a fence on his residue adjoining land, along said railroad, at his own costs and charges.” The plaintiff contended that such a fence was at the time or soon afterwards made, pursuant to this provision of the deed, and was maintained and kept upon the same line, continuously from that time, until the occupation of the land by the company for the additional track, a period of forty years and upwards.
The deed from Hahs to the company, dated 11th August, 1885, as we have seen, did not define the land intended to be [206]*206convejmd by metes and bounds; it was for the lands covered by the location. It was undoubtedly competent, therefore, for the parties, either at the time or afterwards, to designate the limits of that location, and if they did, both parties would be bound by the limits fixed; and, if the fence referred to, was then, or soon afterwards, erected by the grantor, and was maintained by him and his assigns upon the same line for more than forty years, with the acquiescence of the company, it will be presumed to have been built pursuant to the covenant of his deed, and to be the line of the conveyance. The owner is not ordinarily bound to put his fences on the line of his land, and no presumption arises from his failure so to do; but in this instance the covenant of Hahs was to build the fence along the railroad, and that he built and maintained such a fence in pursuance of the covenant, with the acquiescence of the company, if the facts be as alleged, would certainty be evidence that the fence was along the railroad, according to the line established by the parties: So also, where the terms of a grant of a right of way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same effect as if it had been fully described by the terms of the grant: Warner v. Railroad Co. (Ohio), 11 Am. & Eng. R. R. Cases, 417. It is not pretended that at any time since the location of the defendants’ road, until the time of the taking for the additional track the company used, or claimed the right to use, the ground east of the fence built by the plaintiff; on the contrary it is conceded that the parties have during all that time continuously used and occupied the ground, each to the line of the fence, and that each acquiesced in the use by the other.
It is objected, however, that there was not sufficient evidence of the facts alleged, to justify a submission to the jurjn We have the evidence of the covenant of Hahs in 1835 to make and maintain a fence, and proof that a fence was soon afterwards made, and was maintained until the year 1880, when the additional track was laid. William R. Seitzinger testifies in substance, that “ in the beginning ” the company had only one track, which was completed in 1838; that a fence was afterwards built from fifteen to twenty feet from the base of the embankment of the railroad; that not a great while afterwards, perhaps two or three years, the second track was laid, on the eastern side of the first track, which brought the embankment within five or six feet of the fence. In these statements he is to some extent corroborated by Jacob Bowers, Henry Seiders, and Lewis Eisenhower. The last witness also testified that he knew the fence from the beginning, and that to the best of his knowledge it was never moved. Francis J. [207]*207Obert, the plaintiff, testified that he purchased the property iu 1854, and that at that time there was an old fence along the railroad, close up to the embankment; that from time to time, as the company filled on their side of the fence, be filled on his side, and that the fence was at three different times lifted up, but that it was always kept upon the same line on which lie found it when he bought the property. It does not appear by whom the fence was built, but the fair and reasonable presumption is, that it was built pursuant to the provision of the contract. Upon such evidence the court was certainly-justified in submitting the question to the jury. It was further contended, however, that the strip of land in question, was embraced in the right of way of the Cotton Mill branch. We have no evidence, however, how this right was acquired or to what extent, and there can, under such circumstances, be no presumption which will extend the right beyond what was actually appropriated, and was used by the company for the purpose. In the ascertainment of the damages, considerable latitude was allowed in the examination, but we discover no error which would call for a reversal of the judgment.
It is not necessary, we think, to refer in detail to the several assignments of error. What we have said disposes of the several questions intended to be raised. The charge is, iu some respects, subject to criticism; it contains expressions which are perhaps incongruous and erroneous, but they are not such, we think, as damaged the cause of the defendant, indeed the charge as a whole was in many respects more favorable to the defendants than they had any right to expect.
We are of opinion that the assignments of error are not sustained.
The judgment is affirmed.