The opinion of the court was delivered, by
Agnew, J.
A parcel of ground adjacent to Prime street and Washington avenue was laid out into lots extending from Washington avenue up Clement street, leaving a strip four feet wide in the rear of the lots to be used by the lot owners as a passage out to Washington avenue. The deed conveying to Mrs. Ellen Williams one of these lots (No. 1023), granted also the free and common use, right, liberty and privilege of said four feet wide alley as and for a passage-way, and watercourse at all times hereafter for. ever, and subject to the payment of a proportionate part of the expenses of keeping said alley in good order and repair at all times hereafter for ever. The declaration of the plaintiff was in trespass on the case, alleging as the injury the construction of the defendants’ railroad track crossing the four feet wide alley, and obstructing Mrs. Williams’ right of way and watercourse. The track in question was a turnout and siding from the defendants’ main track on Washington avenue to their engine-house, built upon a lot of their own near Washing[107]*107ton avenue, and adjoining the four feet alley on the opposite side from the plaintiff’s lot. The form of the action involves the right of the railroad company to obstruct the plaintiff’s way and watercourse by means of the track laid across it. The authority to do this, claimed by the company, is found in the act authorizing the governor to incorporate the Philadelphia and Delaware County and Southwark Railroad Companies, approved April 2d 1831; the 14th section of an act approved 27th February 1838, and an ordinance of the city councils passed May 24th 1862. The tenth section of the Act of 1831 authorized the company “ as soon as they conveniently can, to locate and construct a railroad of one or more tracks,” and “to make, construct and erect such warehouses, toll-houses, carriages, cars and all the works and appendages necessary for the' convenience of the said company for the use of said railroad.” The oath of the viewers contained in the 12th section requires them to assess the damages caused by the construction of the railroad and other works. This grant of power unquestionably carries with it the right to construct turnouts, sidings, stations and engine-houses, and all works and appendages usual in the convenient operation of a railroad. A railroad without switches, sidings, turnouts and buildings for fuel, water, engines, stations, &e., would be useless in a great measure. They are essential to the operation of the road and to the transportation of freight and passengers with security and dispatch. The expression “ as soon as they can conveniently locate and construct” is not a limitation upon the power to compel the company to exercise its whole authority in the very beginning, when the demands of business are few. It would be an unreasonable construction of its charter to require provision to be made for all the unknown wants of the future. The increase in trade and business, and the changes taking place, often require new and increased facilities. The argument that the track and the engine-house is the private way of the railroad company, not used by the public, and therefore no part of the public highway, is ingenious, hut unsound. Admitting that it is not a part of the public highway, in the sense that it is not used immediately by the public, but by the company only, it does not follow that the ground is not taken for public use under the power of eminent domain. It is not the special use made of it which characterizes it, but its convenient necessity to that part which is for the public use. The principle of the argument would leave the state without power to take any land except that occupied by the main track of the railroad, and compel the company to operate it without the works and appendages necessary for the public safety and convenience.
It is argued also that the charter authorizes the taking of land [108]*108only which is corporeal, and not a right of way which is incorporeal. This refinement is too subtle for our comprehension. It is difficult to understand how a right to enter upon land, and locate and construct a railroad thereupon, can be arrested by the existence of an incorporeal hereditament issuing or served out of it. One would suppose that in talcing the land the way itself is taken. Omne majus continet in se minus seems to forbid any other conclusion. If the land itself which supports the way can be taken, I can see no reason why its incident, the right of way over it, is not equally affected by the same taking for the use of the public.
It is said this is not a case of consequential damages, the taking being direct, and that the charter provides for compensation to the owner of the land only. It is argued, therefore, that in the absence of a provision for compensation to the owner of the right of way, the taking is contrary to the 10th section of the 9th article of the constitution. This argument is founded upon the cases of Workman v. Mifflin, 6 Casey 371, and Voegtly v. Pittsburg, Fort Wayne and Chicago Railroad Co., 2 Grant 245, in which it was held that the owner of a ground-rent is not affected by a taking of the property, out of which it issues for a highway, and that he cannot as the owner of an incorporeal hereditament, petition for an assessment of damages. It is unnecessary to doubt or consider the authority of these cases, the difference between the rights of the owner of a ground-rent being so clearly distinguishable from those of the owner of a right of way and watercourse. It is true that they are alike in the fact that they are incorporeal hereditaments but in nothing else : a ground-rent issues out of land and is charged upon it, but it has no particular situs upon it, and requires no use of it for its enjoyment. It is incapable of being taken or obstructed. It is a pecuniary burden only, the only ligament between the tenant and ground landlord being the reservation or covenant for its payment. Having no connection with the soil, it remains totally untouched by any use the railroad company can make of it. Apportionment of the rent, because of the taking of the land, is solely an equity arising between the tenant and the landlord. Hence the conclusions drawn in the cases referred to.
But the nature of a private right of way is different. A way has its defined route upon the land itself. Ex vi termini it imports a right of passing in a particular line. Washb. on Easement, ed. 1863, p. 160. It carries all rights to the use of the soil which are properly incident to its enjoyment. For instance, the grantee of the right of way over such an alley in a city may enter and pave and repair it: Id. 190, 196, 198, 199. The deed in this case expressly subjects the grantee to ber proportion of [109]*109the expenses of keeping it in repair. The connection of the right with the land is in this case even more palpable, for it includes a right of watercourse, a thing distinct and obvious in its impression upon the land. The right carries with it a qualified use or occupancy of the ground itself. For an obstruction to a right of way, the owner of it has an action directly against the wrongdoer, distinct and independent of the action of the owner of the land for an injury done to his possession: Id. 158. These being the rights of an owner of a right of way and watercourse, it seems to me it would go too far to say that he cannot have a view to assess his damage, caused by a taking which directly obstructs the enjoyment of his way. A private road (says Black, J., in Carver v.
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The opinion of the court was delivered, by
Agnew, J.
A parcel of ground adjacent to Prime street and Washington avenue was laid out into lots extending from Washington avenue up Clement street, leaving a strip four feet wide in the rear of the lots to be used by the lot owners as a passage out to Washington avenue. The deed conveying to Mrs. Ellen Williams one of these lots (No. 1023), granted also the free and common use, right, liberty and privilege of said four feet wide alley as and for a passage-way, and watercourse at all times hereafter for. ever, and subject to the payment of a proportionate part of the expenses of keeping said alley in good order and repair at all times hereafter for ever. The declaration of the plaintiff was in trespass on the case, alleging as the injury the construction of the defendants’ railroad track crossing the four feet wide alley, and obstructing Mrs. Williams’ right of way and watercourse. The track in question was a turnout and siding from the defendants’ main track on Washington avenue to their engine-house, built upon a lot of their own near Washing[107]*107ton avenue, and adjoining the four feet alley on the opposite side from the plaintiff’s lot. The form of the action involves the right of the railroad company to obstruct the plaintiff’s way and watercourse by means of the track laid across it. The authority to do this, claimed by the company, is found in the act authorizing the governor to incorporate the Philadelphia and Delaware County and Southwark Railroad Companies, approved April 2d 1831; the 14th section of an act approved 27th February 1838, and an ordinance of the city councils passed May 24th 1862. The tenth section of the Act of 1831 authorized the company “ as soon as they conveniently can, to locate and construct a railroad of one or more tracks,” and “to make, construct and erect such warehouses, toll-houses, carriages, cars and all the works and appendages necessary for the' convenience of the said company for the use of said railroad.” The oath of the viewers contained in the 12th section requires them to assess the damages caused by the construction of the railroad and other works. This grant of power unquestionably carries with it the right to construct turnouts, sidings, stations and engine-houses, and all works and appendages usual in the convenient operation of a railroad. A railroad without switches, sidings, turnouts and buildings for fuel, water, engines, stations, &e., would be useless in a great measure. They are essential to the operation of the road and to the transportation of freight and passengers with security and dispatch. The expression “ as soon as they can conveniently locate and construct” is not a limitation upon the power to compel the company to exercise its whole authority in the very beginning, when the demands of business are few. It would be an unreasonable construction of its charter to require provision to be made for all the unknown wants of the future. The increase in trade and business, and the changes taking place, often require new and increased facilities. The argument that the track and the engine-house is the private way of the railroad company, not used by the public, and therefore no part of the public highway, is ingenious, hut unsound. Admitting that it is not a part of the public highway, in the sense that it is not used immediately by the public, but by the company only, it does not follow that the ground is not taken for public use under the power of eminent domain. It is not the special use made of it which characterizes it, but its convenient necessity to that part which is for the public use. The principle of the argument would leave the state without power to take any land except that occupied by the main track of the railroad, and compel the company to operate it without the works and appendages necessary for the public safety and convenience.
It is argued also that the charter authorizes the taking of land [108]*108only which is corporeal, and not a right of way which is incorporeal. This refinement is too subtle for our comprehension. It is difficult to understand how a right to enter upon land, and locate and construct a railroad thereupon, can be arrested by the existence of an incorporeal hereditament issuing or served out of it. One would suppose that in talcing the land the way itself is taken. Omne majus continet in se minus seems to forbid any other conclusion. If the land itself which supports the way can be taken, I can see no reason why its incident, the right of way over it, is not equally affected by the same taking for the use of the public.
It is said this is not a case of consequential damages, the taking being direct, and that the charter provides for compensation to the owner of the land only. It is argued, therefore, that in the absence of a provision for compensation to the owner of the right of way, the taking is contrary to the 10th section of the 9th article of the constitution. This argument is founded upon the cases of Workman v. Mifflin, 6 Casey 371, and Voegtly v. Pittsburg, Fort Wayne and Chicago Railroad Co., 2 Grant 245, in which it was held that the owner of a ground-rent is not affected by a taking of the property, out of which it issues for a highway, and that he cannot as the owner of an incorporeal hereditament, petition for an assessment of damages. It is unnecessary to doubt or consider the authority of these cases, the difference between the rights of the owner of a ground-rent being so clearly distinguishable from those of the owner of a right of way and watercourse. It is true that they are alike in the fact that they are incorporeal hereditaments but in nothing else : a ground-rent issues out of land and is charged upon it, but it has no particular situs upon it, and requires no use of it for its enjoyment. It is incapable of being taken or obstructed. It is a pecuniary burden only, the only ligament between the tenant and ground landlord being the reservation or covenant for its payment. Having no connection with the soil, it remains totally untouched by any use the railroad company can make of it. Apportionment of the rent, because of the taking of the land, is solely an equity arising between the tenant and the landlord. Hence the conclusions drawn in the cases referred to.
But the nature of a private right of way is different. A way has its defined route upon the land itself. Ex vi termini it imports a right of passing in a particular line. Washb. on Easement, ed. 1863, p. 160. It carries all rights to the use of the soil which are properly incident to its enjoyment. For instance, the grantee of the right of way over such an alley in a city may enter and pave and repair it: Id. 190, 196, 198, 199. The deed in this case expressly subjects the grantee to ber proportion of [109]*109the expenses of keeping it in repair. The connection of the right with the land is in this case even more palpable, for it includes a right of watercourse, a thing distinct and obvious in its impression upon the land. The right carries with it a qualified use or occupancy of the ground itself. For an obstruction to a right of way, the owner of it has an action directly against the wrongdoer, distinct and independent of the action of the owner of the land for an injury done to his possession: Id. 158. These being the rights of an owner of a right of way and watercourse, it seems to me it would go too far to say that he cannot have a view to assess his damage, caused by a taking which directly obstructs the enjoyment of his way. A private road (says Black, J., in Carver v. Paul, 12 Harris 211) is private property, and an act of assembly to close it up, without paying for it, would be depriving the owner of his property. Having decided that the charter gives an authority to enter upon land and locate and construct a railroad, even against the right of an owner of an incorporeal hereditament issuing or served out of it, we must necessarily say that this carries with it a right to a view to assess damages whenever that right is directly injured by the entry and use of the land. It was because the adverse use of the land for a highway did not so affect the rights of the ground-rent landlord, it was held in Workman v. Mifflin, and Voegtly v. Railroad Co., he was entitled to the damages assessed or to petition for a view. This reasoning is strengthened by the analogy found in the case of Wilson v. Cochran, 10 Wright 229, opinion by the present chief justice. There a covenant of general warranty was decided to be broken by the entry of the owner of a private way who threw down the fences to enable him to exercise his right of passage on the land. This was held to be an actual eviction under title which enabled the defendants to set up the breach of the warranty as a defence to the payment of the purchase-money. We hold, therefore, in this case, that the legislature meant by the terms “ owner or owners of such required land” to include all owners of titles in or growing out of land whose rights are capable of actual privation by the taking. The proper remedy of the plaintiffs below was not by an action, denying the right of entry to take the land, but by an application for the assessment of damages.
The judgment is reversed, and judgment is now entered for the defendants below upon the point reserved.