defendant such corresponding rights as he also may be entitled to in respect of the subject matter of the suit": 1 Pomeroy's Equity Jurisprudence, sec. 385. Anyone going into a court of equity and asking its aid, whether that aid be such as could be obtained in a court of law, or whether it be of a character obtainable only in a court of equity, submits himself to the jurisdiction of the court, and in asking its aid subjects himself to the imposition of such terms as well-established equitable prin ciples would require. Especially would this be true where the relief sought by the party applying to the court is both legal and equitable in its nature. No one can read the facts of the present case without being impressed that there is an overwhelming equity in favor of this railroad 22 company being allowed to purchase from the petitioners the property owned by them, and which is so necessary to the complete operation and maintenance of the company's road in the discharge of its publie duties. Whatever might have been Mrs. Hughes' rights against the company if she had sued at law, or if she had obtained leave of this court of equity to have maintained at law an independent suit against the receiver or other persons in possession, under the remedy which she has elected she is bound to submit the subject matter of the litigation to the adjudication of the court upon equitable principles. Her right to insist upon a judgment of ouster in the first instance is therefore gone, if the defendant desires to insist upon its right to purchase the property; and the pleas of the defendant, which set up its right to have the value of the property passed upon by a jury, that they might be given an opportunity to purchase and pay for the same, were good in substance, and should not have been stricken. It is contended, however, that as the defendant is a foreign corporation, and as it has no authority under the laws of this state to acquire property by condemnation, it had no right to come into court and file a plea asking that what was equivalent to a condemnation be had in the pending suit. While it is not a corporation organized under the laws of this state, by comity it is permitted to come into this state, and is here discharging public duties of the nature usually performed by corporations of that character, and it is as fully under the control of the laws of this state in regard to the discharge of such public duties as if it had been incorporated under our laws. As a foreign corporation it has the right, until stopped by the state, to maintain and operate its railroad within the limits of this state. In order to exercise this right, the property in con

troversy is an essential part of its right of way and terminals. Such being the case, the equity in its favor, requiring that the court of equity to which petitioners have applied should accord to it the right to acquire by purchase the possession of the property before a harsh judgment of ouster should be rendered against it, is just as strong as if it had authority to acquire possession of the property under the exercise of the power of eminent domain. The equity in favor of 23 a railroad company, in such a case, does not grow out of the right it might have under the law to acquire title to the property in which it happens to be in possession, but it grows out of the fact that it is in possession of the property; that the entry of its predecessor in title was lawful and authorized; and that the same has become a necessary component part of the property of the corporation, which is discharging duties of a public nature. The court should have allowed the pleas filed; and, after the damages had been assessed by a jury, a decree should have been entered, allowing the defendant a reasonable time, to be stated in the decree, to pay the damages so assessed, and, upon its failure to pay the same within the time specified, that the petitioners recover the land and writ of possession issue.

4. The judge of the superior court directed the jury to return a verdict in favor of petitioners for the land in dispute; and directed them also to find that the railroad iron thereon was the property of the defendant. This latter ruling is the one complained of in the cross-bill of exceptions. It appears from the record that the railroad iron referred to in the verdict was the tracks which had been placed upon the land in controversy by the railroad company as a part of its main track between its terminal points, and also sidetracks used as a part of its terminals in the city of Augusta. It is apparent that these improvements were made upon the property with no intention on the part of the railroad company to improve the value of the estate, but solely for its uses and purposes in its business as a common carrier of freight and passengers. Upon the termination of the life estate which the railroad company acquired under the conveyance from Holt, did the title to these improvements vest in the remainderman at the same time that the title to the land vested? In the case of Elwes v. Maw, 3 East, 38, Lord Ellenborough reached the conclusion, after an elaborate examination of authority, that buildings and the like, erected by a tenant upon the leased premises for the purposes of agriculture and necessary for the occupation of the farm and the im

mediate profits of the land, were not removable by the tenant even during his term; but that such improvements as were placed by the tenant upon the premises for purposes of 24 trade were not governed by the same rules, and were removable by the tenant at any time before the expiration of his term. This decision was followed by the supreme court of the United States in the case of Van Ness v. Pacard, 2 Pet. 137. The same doctrine is recognized in the case of Carr v. Georgia R. R. Co., 74 Ga. 73, though what is said in that case is merely obiter. In Meigs' Appeal, 62 Pa. St. 28, 1 Am. Rep. 372, it appeared that during the Civil War the United States authorities erected certain buildings used as military barracks and hospitals in the borough of York. After the war had ended and the buildings were no longer used by the government, they were offered for sale, the purchaser to have the privilege of removing the same from the premises. The authorities of the borough applied for an injunction to prevent the removal of the buildings, alleging that they were of a permanent nature, attached to the realty, and therefore became the property of the borough, and could not be removed after the government had abandoned the use of them for the purposes for which they were erected. It was held that the buildings thus erected being placed there at the time when the necessities of the government required the same for military purposes, when the conditions requiring their use ceased to exist the government had a right to remove the same from the premises. In the case of Wagner v. Cleveland etc. R. R. Co., 22 Ohio St. 563, 10 Am. Rep. 770, it was held that stone piers built by a railroad company as a part of its railroad, on lands over which it had acquired a right of way for its road, did not, though firmly imbedded in the earth, become the property of the owner of the lands as part of the realty; and that when the railroad company abandoned the purpose of completing the railroad it had a right to remove such structures from the premises as personal property; and the fact that the landowner had been allowed to take possession of the land embraced in the right of way and hold it for a term of years less than is required to extinguish the easement, did not, in itself, imply a relinquishment on the part of the railroad company of its right to enter and remove the piers. In the case of Toledo etc. Ry. Co. v. Dunlap, 47 Mich. 456, it was held that a railway track, or other improvement wrongfully placed upon 25 land by a railway company, and not abandoned to the owner of the premises, cannot be treated as a part of the realty for the purpose of increasing

its value in estimating the damages due to the owner in subsequent proceedings to condemn the land for the use of the company. In Justice v. Nesquehoning etc. R. R. Co., 87 Pa. St. 28, it was held that where a railroad company was a trespasser and its entry upon land not in conformity to law, structures placed upon the property, for use by the company in its business did not pass to the landowners, and their value was not to be included in an assessment of damages in proceedings afterwards instituted to acquire the property. In Chicago etc. Ry. Co. v. Goodwin, 111 Ill. 273, 53 Am. Rep. 622, it was held that a railroad company which had entered upon land and constructed its road over the same under a license from the life tenant would not be required to pay to the person entitled to the property, after the termination of the life estate, the value of the structures which had been placed upon the property at its own expense: See, also, Elliott on Railroads, secs. 997, 998.

In the present case, at the termination of the life estate, if the railway company had abandoned the possession of the property without removing the improvements which it had placed thereon, such improvements would probably have passed to the remainderman; but under the facts of this case, where it remained in possession, using the same in discharging public duties which were incumbent upon it, although its possession would be, in some sense, wrongful as against the remainderman, it is not to be treated, as has been shown, as a naked trespasser. It would have had the undoubted right, under the authorities above referred to, to remove from the premises the structures which it had placed thereon at any time during the existence of the life estate. As it had a right to remain upon the premises and have their value ascertained in order to acquire a complete title to the same, the mere fact that at the time of the assessment these improvements were still upon the property does not require that they shall be dealt with as the property of the land owner. Therefore, the petitioners having gone into a court of equity, in assessing the damages which should be paid to them the value of the improvements should not be considered. The 26 amount which the plaintiff would be entitled to recover would be the market value of the property at the time the life estate terminated, with interest from that time to the date of the verdict, the value of the improvements placed on the property not being considered in ascertaining such market value.

5. Under the rulings we have made, the only question to be determined upon another trial of this case would be, what com

pensation should be paid to the petitioners for the interest of the remainderman in the property? As all other questions are finally settled by this decision, direction is given that this single issue be submitted to a jury, and that they determine it in accordance with instructions given by the trial judge, following the rulings we have made. When the amount to be paid to the petitioners is thus ascertained, a decree should be entered, allowing the railway company a reasonable time in which to pay the amount thus found, and upon payment of the same, the title to the property to vest in the railway company. Upon a failure to pay the same within the time limited, the right of the company to acquire the property should be decreed to be lost, and a writ of possession should issue to enforce the judgment in ejectment already rendered in the case.

Judgment on main bill of exception reversed with direction; on cross-bill affirmed.

All the justices concurring.

EMINENT DOMAIN-CONDEMNATION PROCEEDINGS CONCLUSIVENESS.-A judgment of a court having jurisdiction to award damages in a proceeding to condemn lands for railroad purposes is conclusive upon the parties thereto as to all questions therein actually litigated, as well as all matters necessarily within the issue joined, although not formally litigated: Atchison etc. R. R. Co. v. Boerner, 34 Neb. 240; 33 Am. St. Ry. 637; Atchison etc. Ry. Co. v. Forney, 35 Neb. 607; 37 Am. St. Rep. 450. Conclusiveness where the damages are assessed by commissioners: Aldrich v. Cheshire R. R. Co., 21 N. H. 359; 53 Am. Dec. 212.

EMINENT DOMAIN - CONDEMNATION PROCEEDINGSWHO BOUND.-A bona fide purchaser of land is not affected by proceedings for its condemnation to public use, pending at the time of the purchase, if he had no notice of such proceedings, and no notice of lis pendens had been filed: Bensley v. Mountain Lake Water Co., 13 Cal. 306: 73 Am. Dec. 575. The owner of a limited interest in property is entitled to compensation: Ex parte Jennings, 6 Cow. 518; 16 Am. Dec. 447. A railway company, authorized to condemn lands for a right of way, cannot condemn a temporary use, nor a use contingent on the happening of a future event: Hibernia R. R. Co. v. De Camp, 47 N. J. L. 518; 54 Am. Rep. 197.

EMINENT DOMAIN-CONDEMNATION PROCEEDINGS — CONDITIONS PRECEDENT.-Bona fide effort to agree for the purchase of property acquired for a railroad crossing is a condition precedent to a resort to proceedings for the condemnation thereof, and must be alleged in the petition of the company instituting such proceedings: Toledo etc. Ry. Co. v. Detroit etc. R. R. Co., 62 Mich. 564; 4 Am. St. Rep. 875.

EMINENT DOMAIN-TAKING PROPERTY BY CONSENT. The consent of owners of land taken for public use by a statute may be subsequent, presumed, and tacit, as well as previous and positively expressed: Wellington, Petitioners, 16 Pick. 87; 26 Am. Dec. 631.