Mississippi and Tennessee Railroad Company v. Devaney. further action was taken at that time by the Mississippi and Tennessee Railroad Company. On the 21st of November, 1865, the legislature of this state passed an act amendatory of the charter of the plaintiff in error, whereby they were specially authorized to make a connection with the Mississippi Central Railroad Company, on the north side of the Yallobusha river. A few days after the passage of said amendatory act, without any new survey or jury of review or condemnation, the company entered upon the land originally surveyed, and condemned by the jury of review on the 11th day of November, A. D. 1865, and for which they had tendered to the defendant in error the $300. On the 13th day of April, 1867, the defendant in error instituted, in the circuit court of Yallobusha county, an action of ejectment against the Mississippi and Tennessee Railroad Company, for the recovery of the land surveyed and condemned by the said jury of review on the 11th day of November, 1865, and upon which said company had, in the mean time, placed their road-bed, ties and iron rails, and upon which the cars of the plaintiff in error were then running. Shortly after the commencement of the ejectment suit, on the 26th of April, 1867, the Mississippi and Tennessee Railroad Company had another jury of review summoned, who inspected and condemned the same land inspected and condemned by the jury of review of the 11th of November, 1865, and rendered a special verdict assessing the damages sustained by Devaney at the same sum which the former jury assessed—to wit, $300. They state in their verdict, in addition, that they make this assessment under the impression that Devaney is not entitled to claim as damages the value of the road-bed, cross-ties and iron rails, which the company had laid down upon the land in question nearly two years before, and which the company were then using. "But if Devaney is entitled to claim said road-bed, cross-ties and iron rails as his property, that then they assess his damages at $3,600- namely, $300 for actual damages sustained, and $3,300 for the value of the road-bed, cross-ties and iron rails." From this 'verdict of the last jury of review Devaney appealed to the circuit court of Yallobusha county, and on the trial of this appeal the verdict of $3,600 was rendered by the jury. Upon the trial of the suit for damages, the railroad company pleaded and relied upon the verdict of the "jury of review" of the 11th of November, 1865, and the condemnation Mississippi and Tennessee Railroad Company v. Devaney. of the land by the same, and upon the tender of the $300 assessed by said jury on the 14th day of November, 1865. The railroad company, by their counsel, asked the court to charge the jury, "that, in estimating the damage sustained by Devaney, they could not estimate as part of his damage the value of the crossties, iron rails and superstructure which has been placed upon the road-bed on said land by said company." This instruction the court refused to give. Exception was taken to this ruling of the court, and allowed. At the instance of the defendant in error, the court gave the following instruction to the jury: "That they, the jury, might consider the value of the cross-ties, road-bed, and iron rails, in estimating the amount of plaintiff's damage." To the giving of this instruction, plaintiff in error objected, and excepted at the time. Upon the trial of the ejectment suit, as upon the trial of the suit for damages, the plaintiff in error pleaded and relied upon the tender of the amount assessed by the jury of review of the 11th of November, 1865, and upon their verdict of condemnation on the 11th of November, 1865, and upon the amended article of the legislature of the 21st of November, 1865, to their charter. The railroad company, by their attorneys, asked the court to give the following instructions: 1. "That if the jury believe that before the railroad company entered upon the land they tendered the amount of the verdict found, on the 11th day of November, 1865, to the plaintiff Devaney, they would find for the defendant." 2. "That if the jury believe that the defendant entered upon the land in November, 1865, and upon the 4th of September, 1867, tendered the plaintiff the amount found due on the 26th of April, 1867, they would find for the defendant." 3. "That if the jury believe that defendant entered upon the land under the charter and amended charter, and built their road, and were using it as a public railroad under said charter, they would find for the defendant." All of which instructions were refused by the court, and exceptions were then taken to the ruling of the court. The court then, at the request of the counsel for the plaintiff Devaney, charged the jury, "that if the railroad company relied for defense upon the fact that the land had been condemned by a jury impanneled to assess Mississippi and Tennessee Railroad Company v. Devaney. plaintiff's damages, under the provisions of defendant's charter, then they must prove payment or tender of the amount found due." The verdict for $3,600 had been rendered against plaintiff in error previous to the trial of this, the ejectment suit; it evidently referred to this verdict. The plaintiff in error assigns the following grounds for error in both cases: 1. Error of the court below in giving charges asked for the plaintiff. 2. Error in the court's refusal to grant charges asked for the plaintiff. 3. Error in the court's refusal to grant charges asked by the defendant. 4. Error in the court in overruling motions for new trials. The first question raised and presented by counsel in the argument of the case is this: Whether the connection made with the track of the Mississippi Central railroad north of the Yallobusha river is in violation of the charter of the Mississippi and Tennessee company, or whether the power to connect with the Mississippi Central railroad was exhausted by the connection at their depot in the town of Grenada, on the completion of their road in 1861. It is contended by counsel for the defendant in error that the election by the plaintiff in error to locate their depot at Grenada, and their location of the same there, and their connection with said road at that point, exhausted their right, under their charter, to connect with the Mississippi Central road at any other point; consequently, that the connection last made by the plaintiff in error with the track of the Mississippi Central road north of the Yallobusha river is illegal and void. The depot of the Mississippi and Tennessee Railroad Company in Grenada is at the same place where it was originally located, on the completion of their road to that point. There has been no effort to change the depot, as shown by the proof in the case; all the plaintiffs in error attempted to do, and did do, was to reach their depot in Grenada, the terminus of their road, by connecting the iron rails of their road with those of the Mississippi Central track north of the Yallobusha river; by doing this they accomplished their object. They having sustained half the expense of erecting a bridge over said river, upon the piers of the Mississippi and Tennessee Railroad Company v. Devaney. Mississippi Central Railroad Company, they acquired a right to run their cars over said bridge, and over a few hundred yards of the track of the Mississippi Central road. This connecting of the iron rails with those of the Mississippi Central road, as stated and shown by the diagram in the record, is not such a connection as was contemplated by the charter of the company; it is not the terminus of their road in a legal sense. There is no depot at the junction for the transfer of freight or passengers; their trains pass on and over the track of the Mississippi Central road, without obstruction, to their depot at the terminus of their road in Grenada. The proof shows, that before the late civil war the cars of the plaintiff in error entered their depot in Grenada over their own road and bridge. Their charter authorizes them to connect with the Mississippi Central road at such point as they might select, where their road should terminate. It will scarcely be denied that the plaintiffs in error had the right and the power, under their charter, to connect their rails with those of the Mississippi Central Railroad Company, at any point above Grenada they saw proper, with the consent of the Mississippi Central Railroad Com. pany, previous to the construction and completion of their bridge over the Yallobusha river, and of their road to their depot in Grenada, and to run their cars over the track of the Mississippi Central Railroad to their depot in Grenada. If this position is correct, upon what ground can that right be controverted now? Again, if the right of way had been purchased from the defendant in error, Devaney, over his land, as proposed by the plaintiffs in error, and the connection made, as it has been done, without opposition from Devaney, who could object to the running of their cars over their joint bridge and upon the track of the Mississippi Central road? It is only necessary to ask the question to obtain its answer. The position of track of the Mississippi Central road, over which the plaintiffs in error run their cars to their depot in Grenada, for all practical purposes is as much their road or track as if they had originally owned and constructed it. They have unrestricted use of it, in common with the Mississippi Central railroad; they own the bridge in common, and their legal right to the use of it is equal, in all repects, with that of the Mississippi Central. It only loses its identity as their road at the connection with the track of the Mississippi Central railroad, at the depot of the plaintiffs in error in Grenada. We think the objections urged by counsel Mississippi and Tennessee Railroad Company v. Devaney. against the legality of "the connection" under discussion are unsupported by facts, and are therefore without force; they are based upon the idea that this connection of the roads north of the Yallobusha river was a terminus of the road of the plaintiffs in error, when, in fact, the terminus, as the proof shows, is still at Grenada. Counsel for the defendant in error contend, that the survey and condemnation of the land of defendant in error, Devaney, by the jury of review, on the 11th day of November, 1865, to the use of the plaintiffs in error, and upon which the plaintiffs in error have built a track from the old line of their road to the track of the Mississippi Central railroad, are illegal and void. And, in support of this position, insist that the plaintiffs in error exhausted the power conferred upon them by their charter, to take lands in invitum when they located their road and constructed it from Memphis, Tennessee, to Grenada, on the south side of the Yallobusha river, and rely upon the cases of The Little Miami Railroad Company v. Nayler, 2 Ohio, 235; Morehead v. Little Miami Railway Company, 17 id. 340; State v. Norwalk and Danbury Turnpike Company, 10 Conn. 157; Griffin v. House, 18 Johns. 397 (a turnpike case); Louisville and Nashville Branch Turnpike Company v. Nashville and Kentucky Turnpike Company, 2 Swan, 282; Turnpike Company v. Hosmer, 12 Conn. 364, and other authorities. This question of the power of railroad companies to take lands in invitum, for the purpose of relocating, repairing or altering their tracks or lines of road, is now, for the first time, before this court in the case now under consideration. The questions involved in the case have been elaborately argued by the counsel of both parties with great ingenuity and distinguished ability. The first authority we shall notice, relied upon by counsel for defendant in error, is the case of Morehead v. Little Miami Railway Company, 17 Ohio, 340. The railway company, in this case, had located their road through a street in the city of Cincinnati, Ohio, and, when in full operation, it attempted to make a double track on a lot of a private individual, with a view of abandoning the line of track through the street. The court enjoined the company from further proceedings, giving as their reason for so doing, that "there was no necessity for the change, and it was not a case for the exercise of any implied power," citing the case of The Little Miami Railway Company v. Nayler, 2 Ohio, and affirming it. It will be observed, from the language of the distinguished chief justice who delivered |