The contention of the Pennsylvania Company is that the Lake Shore Company had the right to take and hold the whole of the strip of one hundred feet through the Oliver lot, although it had no occasion to use the east half of it, or any part thereof, at any time; that, after holding such east half for more than twenty-one years, and after finding that it would never need the same for any purpose, the Lake Shore Company might lawfully, not merely lease temporarily, but sell, in perpetuity, one-half of such unused strip, that is, a strip twenty-five feet, wide, to' the Pennsylvania Company, and apply the purchase-money ($7,500) to its own use; that the Pennsylvania Company might thereupon construct and operate, on a different grade, a railroad on such strip of twenty-five feet, cutting off' thereby the lot-owner’s access to the different parts of his lot, which, until then, had been free and unobstructed; and that all this might be done without making to the owner of the lot any compensation whatever, except such as he received in assumed benefits, at the time of the appropriation of the strip of one hundred feet, in February, 1851.

It would be very surprising to find a decision sustaining a claim so palpably and flagrantly unjust, and we will venture to say that no such case can be found. Not only can no such case be found, but the plainest principles and the clearest authorities absolutely forbid the allowance of any such claim. In the leading case of Giesy v. Railroad, 4 Ohio St. 308, 328, Ranney, J., said: “The quantity of land that may be appropriated for this purpose is left, it is true, very indefinite. It is clear, however, that only so much can be taken as is necessary to be used in that manner. And with the power of the courts to prevent abuses, and the cer*239tainty that it can be held only so long as it is thus used, and can not be diverted, to any other purpose, there may be little danger ot attempts to get too much.” “It may, however, be safely asserted,” said Andrews, J., “ that the acquisition of lands for the purpose of speculation or sale, or to prevent interference by competing lines or methods of transportation, or in aid of collateral enterprises remotely connected with the running or operating of the road, although they may increase its revenue and business, are not such purposes as authorize the condemnation of private property.” Rennssalaer, etc. Ry. Co. v. Davis, 43 N. Y. 137, 146. “ The surplus,” says Mr. Mills, “ beyond the amount required by the public, is .not properly taken, not being needed for the public use, and the owners are entitled to such surplus.” Em. Dom., § 23. In Swinney v. Ft. Wayne, etc. R. Co., 59 Ind. 205, it appeared that an appropriation had been made under an Indiana statute, which is the same as our act of 1848, permitting the company to enter upon lands, and, by proceedings in court, appropriate “ so much thereof as may be deemed necessary for its railroad.” The court held: “A railroad company has no authority to appropriate land for the use of another company,” and “ there is no authority of law for several railroad companies to agree that one of their number shall proceed to appropriate land for the purpose of afterward dividing it for the-benefit of all; each company must proceed for itself.” In Mahoney v. Spring Val. etc. Co., 52 Cal. 159, it was held : “A water company having commenced such proceedings, can not sell and transfer its right to prosecute them, or to take private property, to another water company, nor can the latter purchase such right. Such attempted sale and purchase, on the part of either corporation, is ultra vires in the extreme sense, and is a fraud on the court or judicial officer before whom the proceedings are pending, and whose judgment is employed in determining the necessity of the appropriation to the public use represented by the corporation petitioner, not its necessity to a use represented by another corporation.” And see Taylor on Corp., § 166; *240Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123.

The Lake Shore Company is not a party, and hence there can be no adjudication in this suit which will operate as an estoppel as to that company; but the Pennsylvania Company is a party; it has accepted a conveyance from the Lake Shore Company; hence it may be estopped as effectually as if the Lake Shore Company had been made a party. The legal title to the strip of one hundred feet remained in Oliver, and is now in the plaintiffs. The Lake Shore Company - acquired an easement only, though an easement in perpetuity, and where there is an abandonment of such easement, the interest acquired reverts to the owner of the fee. Here the Pennsylvania Company is es-topped to deny that there was, not a forfeiture, but an abandonment of the easement, first, by non-user of the strip of twenty-five feet in question for more than twenty-one years; and, secondly, by the conveyance accepted by the Pennsylvania Company; and in such case, where the interest, as here, was an easement, it is not merely for the state to complain, but the owner has his remedy directly. Sometimes this remedy may be to compel condemnation under the statute; but the Pennsylvania Company is a foreign corporation, without power of condemnation. Sometimes the remedy may be by action to recover possession, or to restrain the running of trains until compensation is made; but where the plaintiff has stood by, as may have been the case here, until the improvement was made, either of such remedies would be harsh. Under the circumstances disclosed in this petition, an action to recover as upon appropriation seems to be the proper remedy, and consideration of the following cases will show, as well that such action is warranted, as that here was a clear case of abandonment. Heard v. Brooklyn, 60 N. Y. 242; s. c., sub nom. Strong v. Brooklyn, 68 N. Y. 1; Washington Cem. v. Railroad, 68 N. Y. 591; Haldeman v. Railroad, 50 Pa. St. 425; Lance’s Appeal, 55 Pa. St. 16, 25; Pittsburgh, etc. R. Co. v. Bruce, 102 Pa. St. 28; s. c., 10 Am. & Eng. R. Cases, 1, and *241note; Hatch v. Railroad Co., 18 Ohio St. 92; Wagner v. Railroad, 22 Ohio St. 563, 579; Goodin v. Cincinnati, etc. R. Co., 18 Ohio St. 169 ; Atlantic & G. W. R. Co. v. Robbins, 35 Ohio St. 531, 538; Corwin v. Cowan, 12 Ohio St. 629; Longstreet v. Harkrader, 17 Ohio St. 23; Taylor v. Railroad, 38 N. J. Law, 28 ; Oregon C. R. Co. v. Baily, 3 Oregon, 164, 176; Prather v. Jeffersonville, etc. R. Co., 52 Ind. 16; Terre Haute, etc. Co. v. Rodel, 89 Ind. 128; People v. Met. Tel. Co., 11 Abb. N. C. 304; Grand Rapids, etc. Co. v. Heisel, 47 Mich. 393; Proprietor of Locks, etc. v. Railroad, 10 Cush. 385; Buckingham v. Smith, 10 Ohio, 288; Cooper v. Williams, 5 Ohio, 391; McArthur v. Kelly, 5 Ohio, 139; Jordan v. Overseers of Dayton, 4 Ohio, 294; Moorhead v. Little Miami R. Co., 17 Ohio, 340; Kansas Ry. Co. v. Allen, 22 Kan. 285; U. S. v. Great Falls Man. Co., 112 U. S. 645 ; Hopkins v. Railroad, 79 Mo. 98; Bostock v. North Staffordshire R. Co., 3 Smale & Gif. 283, 292; 26 Moak Eng. Rep. 404.

Counsel for the Pennsylvania Company, in answer to this view and such other reasons as the plaintiffs have assigned for recovery, place much reliance on Junction Railroad Co. v. Ruggles, 7 Ohio St. 1, and Hatch v. Cincinnati and Indiana R. Co., 18 Ohio St. 92. But in fact these cases support the claim of the plaintiffs. In the first ease, it appeared that Ruggles executed to the Ohio Railroad Company an instrument in ■writing, under seal, agreeing that, if the company would locate its road through any lands possessed by him, he would quitclaim to it so much .land as the company was authorized to take, to wit, a strip one hundred feet in width through such lands for the purpose of location and construction of the road, with the right to immediate possession, and of taking and converting to their own use stone, gravel, etc. The company located its road though the lands of Ruggles, but before the road was completed, the state, which had loaned its credit to the company, took possession of and subsequently sold the road, under the act of 1837 and a joint resolution passed in 1845. Ebenezer Lane became purchaser, who conveyed his title to the *242Junction Railroad Company, and that company proceeded to build the road through the lands of Ruggles, on the strip so located by the Ohio Railroad Company. Ruggles objecting and threatening to bring suit, the Junction Railroad Company commenced an action and obtained an injunction restraining him from interfering with the construction of the road, aud this court made the injunction perpetual. Stress is placed by the court, and properly placed, on the fact that the rights, as against Ruggles, were acquired, not by invoking the power of eminent domain, but by contract, aud the case really turned on the assignability of the contract, in view of the terms of the agreement, the legislation, and the existing facts.

In Hatch v. Cincinnati, etc. R. Co., 18 Ohio St. 92, it appeared that in 1840 the Whitewater and Cincinnati Caual Company constructed a canal in Hamilton county, from Cincinnati to Harrison, passing through Hatch’s farm, and appropriating and using for such purpose a strip of land of an average width of about fifty feet. The canal was used and operated until 1863, when the Cincinnati and Indiana Railroad Company undertook to appropriate for its railroad track the land so used by the canal company, paying, by agreement between the canal company and railroad company, to the former, $50,000 therefor, and the railroad company took additional land belonging to the plaintiff, so that the strip of ground it occupied was about sixty feet wide, •and it constructed and operated a railroad thereon, but it made to Hatch no compensation additional to that which he received from the canal company. Hatch brought suit -against the railroad company, seeking to recover damages as upon an appropriation. This court doubted the right of the railroad company to appropriate the canal in invitara, but regarded the proceeding, so far as it affected the two companies, as, in effect, a sale, and as the canal company made no complaint, the court was unwilling to say the appropriation proceeding was a nullity, and it was upheld as against Hatch. As the canal was a servitude upon the lands of Hatch, unrestricted in duration, and furnished *243means of conveying freight of every sort, and passengers, from one point to another, the court held that the change of the mode of conveyance from canal to railroad was, under the circumstances, not such change of use — not such abandonment — as entitled Hatch to compensation a second time for the land actually taken and used by one common carrier. It was the case of one common carrier occupying the identical strip of ground, and all of it, which had been occupied by another common carrier, and the burden was the same before and after the change; there was only one common carrier at any time. If the company which condemned the land and made compensation to Hatch had been a railroad company, and had built its road, no doubt another railroad company succeeding to its rights by purchase would not have been required to make compensation to Hatch, for he would thus be receiving compensation twice for the same thing; and the court held, the circumstance that the first company was a canal company and its successor a railroad company, would make no difference. But this court further held, not only that Hatch was entitled to compensation for the additional laud taken, but that he was entitled to compensation for the additional servitude to which he was subjected, the latter point decided being expressed as follows: “Where an entire tract of •land is cut asunder by an appropriation of an easement upon it by a canal company, for the purpose of a canal, and this easement is afterward transferred by the canal company to a railroad company for the purpose of a railroad; and the latter, in the construction of its railroad, throws up embankments or excavates cuts across a common public highway, skirting the tract, and constituting the only convenient medium of access between the parcels into which the tract has been, thus severed, the increased inconvenience and danger of access thus occasio'ned between the two parts of the tract are peculiar to the owner,of the tract in the use of his property, not common to the public at large, and for this increase of inconvenience and danger, he is entitled to' compensation.”

*244As there is nothing in any ease, certainly nothing in either Junction Railroad Co. v. Ruggles, or Hatch v. Railroad, which militates against a recovery by the plaintiffs, this opinion might well end here. But other well-settled principles lead to the same conclusion.

1. The power granted by statute to the condemning company was to take and hold an easement for “ its railroad;" and such statutes must be strictly construed. And this is not a rule to be asserted and then disregarded, but to be rigidly enforced. Lane, C. J., in Kemper v. Turnpike Co., 11 Ohio, 392; Birchard, J., in Moorhead v. Railroad, 17 Ohio, 340, 350; Bartley, J., in Kramer v. Railroad, 5 Ohio St. 140, 147; Welch, J., in Toledo, etc. R. Co. v. Daniels, 16 Ohio St. 390, 396; McIlvaine, J., in Bowersox v. Watson, 20 Ohio St. 496, 588; Johnson, J., in Railroad Co. v. Furnace Co., 37 Ohio St. 321, 329. And see Straus v. Eagle Ins. Co., 5 Ohio St. 59; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123; Pittsburgh, etc. R. Co. v. Bruce, 102 Pa. St. 23; Green’s Brice’s Ultra Vires (2d ed.), 380; Taylor on Corp., § 163.

2. Whei’e, as here, the interest acquired is only an easement, the owner of the fee retains every right in the laud appropriated, not inconsistent with the paramount authority of the company freely and unobstruetedly to build, repair, and operate its railroad, and use therefor materials fairly within the condemnation. In Goodtitle v. Alker, 1 Burr. 133, it was said of a way, that “ the owner of the soil has right to all above and under ground, except only the right of passage for the king and his people.” In Julien v. Woodsmall, 82 Ind. 568 (approved 91 Ind. 137), it was held that ice formed on the right of way of a railroad belongs to the owner of the soil, who may maintain trespass against a person who removes it without his consent. And the owner of the fee is not only owner of the minerals under the land appropriated, but also owner of the soil, gravel, trees, and herbage, except as needed by the company in constructing, repairing, and operating its road. Kan. Cen. R. Co. v. Allen, 22 Kan. 285; Taylor v. N. Y. *245etc. R. Co., 38 N. J. L. 28; Preston v. Dubuque R. Co., 11 Iowa, 15; Aldrich v. Drury, 8 R. I. 554; Hasson v. Oil Creek Co., 8 Phila. 556; 10 Am. & Eng. Rail. Cas. 1-14. And where, as in this ease, the right of way passes through, a tract of land, leaving part of the tract on each side of the portion appropriated, the question how far access to the different parts of the lot will be affected, is always considered. Hatch v. Railroad,, 18 Ohio St. 92. And the owner of the fee is ordinarily not deprived of access to the different parts of his lot through which a railroad passes.

a. If the lot is of sufficient size, there may be a crossing thereon constructed pursuant to the statute.

b. There may be a crossing by means of a bridge, a tunnel, or a road, under conventional arrangement.

c. There may be such use of the land, acquiesced in by the company, as will amount to license to cross. Taylor’s Corp., § 371.

Hero the authority under which Oliver had access to the different parts of his lot does not appear, but it is shown by the petitiou that such access existed, and that it was unobstructed, notwithstanding the Lake Shore Company was operating its railroad; that such access was a valuable right; and that it was destroyed by the Pennsylvania Company by constructing and operating its road. We may well say that the access which the plaintiffs had, from one part of their lot to the other, existed lawfully, and that it was wrongfully destroyed by the defendant.

3. Under the constitution of 1802, which was in force when this appropriation was made, benefits could be estimated and set off' against the value of lands and damages, so as to permit the land to be taken without the payment of a dollar in money. That was done in this case. True, Judges Scott, Ranney, Bartley, and Brinkerhoff, and perhaps others, were of opinion that this was an erroneous construction of the constitution, but it was acquiesced in until it had become a rule of property, and hence this court has been and is unwilling to disturb it. See Kramer v. Railroad, 5 Ohio St. 140, 147; Corwin v. Cowan, 12 Ohio *246St. 629, 633. Here we must assume the court took into consideration the burden as well as the benefit which one common carrier, namely, the Toledo, Norwalk and Cleveland Railroad Company, operating, without limit in time, its trains through Oliver’s lands, would be to him, and that the benefits were set off against the value of the land taken and damages sustained. Oliver agreed to assume the burden of one common carrier, and no more. In point of fact, as appears from the petition, the construction and operation of that road did not interfere with Oliver, in the use of the different parts of his lot, and this, we must assume, was apparent to the court when the condemnation was made. As the railroad company was only authorized to condemn for its railroad, the court could only take into consideration the burden which would be imposed by the construction of that road ; and as the Pennsylvania Company imposes a new burden, it is evident that Oliver and those holding under him have never been compensated for that burden, or, in other words, ■when such additional burden is considered, they have not been compensated for the land taken. If the construction of the Pennsylvania Company’s railroad on plaintiff’s land benefited them in any way, it is not shown, and it is quite apparent, that, by reason of such additional road, plaintiffs are greatly injured.

4. To be sure, it is urged that this was an appropriation of the one hundred feet for railroad purposes generally. Rut that is to reverse the rule of construction above stated; it is to assert that the Toledo, Norwalk and Cleveland Railroad Company took, not a mere easement for its road, but a fee for railroad purposes generally, with power not only to use, but to sell parcels of the land condemned to a number of railroad companies. In view of our statute and the decisions already cited, there is not the slightest authority for any such claim. An easement for one road, as we have seen, was acquired, and nothing more; and the statute contemplates only that. True, there may be a sale, where the statute authorized it; there may, as we have seen, be a change of use; one railroad company may lease its road *247to another; there may be certain running arrangements between roads, enforced either by statute, or carried out conventionally. It is not our purpose to define the limit of the power of railroads in any of these particulars, but is sufficient to say that this does not militate in any way against any thing that I have said.

5. Defendant in error suggested that objection should have been made, at the time the appropriation proceeding was determined, to the quantity of land taken, and that the objection was waived by failure to insist on it at that time. The point has not been pressed for the obvious reason that it is plainly untenable. Doubtless the company was, in its inception, like every similar railroad enterprise, one of “ great expectations,” and Oliver, as well as the promoters of the company, may have been honestly misled as to the quantity of land which the company, in view of its business, might require in the. future. Neither Oliver, nor those holding under him, have done any thing to mislead the companies, or either of them. Even if he had suggested to the court, in 1851, that the company was taking too much land, how could he have shown that his statement was true ? He was bound to do nothing of the kind. On the contrary, as Judge Ranney shows in Giesy v. Railroad, he might well assume that when it was shown that too much was taken — that when time had demonstrated the company only needed one-half of the quantity taken — the court could interfere in behalf of the owner and set the matter right.

Without pursuing the subject further, we hold the petition presents a clear case for relief in the way stated, and hence the judgments in the courts below must be

Reversed.

dissenting: The following are the only propositions of law involved in the decision of this case, and, in my opinion, the judgment below should be affirmed.

1. A right of way appropriated by a railroad company, *248as necessary for the use 0/ its railroad, is transferable to another company for like uses.

2. The transferee company is entitled, as against the owner in fee, to all the rights, privileges, and immunities acquired by the appropriating company.

3. The right to impose burdens upon the land appropriated is subject to the same limitations in the posession of the transferee as of the appropriating company; on the other hand, the right to impose burdens on the land passes to the transferee to the full extent possessed by the appropriating company.

4. The right to transfer the entire right of way, with all tbe privileges acquired by the condemnation, includes the right to permit and license another railroad company to occupy for the use of its road a part of the right of way.

5. The use of such part by the licensee in the same manner it could have been used by the licensor is not an addiditional burden on the land for which the owner in fee is entitled to additional compensation.

6. The quantity of land embraced in the right of way is fixed and determined, as between the parties, by the judgment of condemnation.

7. The non-user of those portions of the right of way, at the sides of the track of the road, is not an abandonment thereof to the owner in fee.

Thefirst and main proposition is admitted tohe the law by the majority of the court in the decision of this case. It is so declared by the courts of most of the states of this Union, and by none more0 emphatically than by the supreme court of Ohio. In the Junction Railroad Co. v. Ruggles, 7 Ohio St. 1, it was decided, in a case where the appropriating company had sold its right of way to auother company before it had constructed a road thereon, that the sale was valid and the title passed. In Hatch v. Cincinnati and Indiana Railroad Co., 18 Ohio St. 92, a right of way appropriated by a canal company, for canal purposes, was sold to a railroad company for railroad purposes. The sale was maintained on the ground that the purposes of the condemna*249tion by the canal company, and the uses to which it was transferred were similiar, to wit, a public highway. The contracting parties to the transfer, having power to contract, special legislation to transfer this species of property was not relied on. The transferability of the right of way was based on the inherent nature of property.

A right of way for public uses, whether held as an easement or in fee, is property, and as such, in the absence of restraining statutes, is transferable. In the cases cited, the right of way was a perpetual easement, but in Malone v. City of Toledo, 34 Ohio St. 541, where the fee of the land condemned for a canal passed under the statute, it was held that the transferee took it discharged from any limitation as to uses. Of course, where the right of way is for a public use, and the right is of the nature of a perpetual easement, the transferee takes it subject to like uses. There is no doubt entertained, so far as I know, as to the correctness of the first proposition.

As to the second proposition, that the transferee of a right of way for railroad purposes is entitled, as against the owner in fee, to all the rights, privileges, and immunities acquired by the appropriation proceedings, it is hardly necessary to say a word. It is of the very essence of the transferability of property that the purchaser should succeed to all the rights of the vendor, where the contract of sale imposes no limitations, and none are imposed by the positive law of the land. It seems to me incredible that the rule should be otherwise, and it is not contended that the positive or statutory law of this state imposes any barrier to the transfer attempted to be made in this case.

The third proposition rests on the principles underlying the second. Of course, a vendor of property, as a general rule, can not vest any right or title in the purchaser which he did not himself possess; but where no conditions or limitations are imposed by the contract of sale, and no rule of law forbids it, the property passes to the purchaser as fully subject to his control and dominion, as it formerly *250was to the control and dominion of the vendor. These views are elementary.

The fourth proposition, that the right to transfer the entire right of way, with all the privileges acquired by the condemnation, includes the right to permit and license another railroad company to occupy for the use of its road a part of the right of way, appears to me to be logically and mathematically correct, as the whole necessarily includes all its parts. As an abstract proposition this would probably not be gainsaid.

The point of difference which divides the court is, in my opinion, involved in this proposition, but as it is made more patent and circumscribed in the next, I will proceed to it.

Proposition 5. The use of such part by the licensee, in the same manner it could have been used by the licensor, is not an additional burden on the laud for which the owner in foe is entitled to additional compensation.

As I understand the decision, it is based chiefly on the ground that, by the proceedings of condemnation, the only burden imposed on the land condemned was the right to construct and maintain a single railroad, to wit, the road of the appropriating company, and it is claimed that the construction of a railroad track, and its use, by another company, to be operated at the same time as a separate road, is an ádditional burden on the land, and an invasion of the rights of the owner in fee, for which he is entitled to compensation or damages. It is admitted, as I understand, that a successor, by purchase, of the entire interest of the appropriating company, may operate the road constructed by its vendor, and enjoy the right of way to the full extent that it could have been enjoyed or used by such company. It is not denied, as I understand, that the appropriating company or the successor to all its rights may grant to another company a right of way across its own, at right angles or at any other angle, but it is claimed that a grant or license to another company to build a track parallel with its own, and on the same right of way, is in *251excess of the rights acquired by the judgment of condemnation. The position assumed in the decision is, I think, inconsistent with the foregoing propositions and former adjudications of this court.

■ I admit that any encroachment on lands not embraced in the right of way, by the appropriating company or its successor, would be a violation of the rights of the owner in fee; but by the condemnation the whole of the land embraced in the right of way was devoted to railroad purpose in perpetuity, and full compensation therefor was awarded to the owner in fee. It is true that, at the time these lands were condemned, the law allowed resulting benefits to other lands to be set off agaiust compensation for the land taken and injuries to other lands; but whether the compensation for land appropriated be made by resulting benefits, or in monej’, as is required by the present constitution, makes no difference in the character of the rights acquired by the approjjnating company. In either case, the owner is compensated to the full value of the property takeu. As a result, the use of the entire right of way is appropriated to public purposes. The entire right of way was subject to be occupied by tracks and side-tracks, at the will of the appropriating company, without injury to the rights of fhe owner in fee, whether he contemplated such usé or not. In law, such use was contemplated; such were the burdens for which compensation was made; and if the right of way be transferable, as we lmve shown it is, the transferee, as well as the appropriating company, may construct additional tracks to the full capacity of the right of way, without imposing any additional burden on the land for which the owner iu fee is entitled to additional compensation. This being so, upon what principle of right or of construction can it be said that the owner in fee may claim additional compensation from a licensee of a part of the right of way for an act that would be perfectly j ustifiable if done by the licensor? If it be answered that the statute which authorized the condemnation limited it to the use of the road of the appropriating company, it is sufficient reply to *252say that it is settled that the limitation referred to does not prevent the transferability of the property in whole or in part.

But it is said that independent of the transferability of the property, the defendant in error has placed burdens on the land in excess of those which the appropriating company acquired the right to do ; that is to say, the transportation of trains, passengers, and freight of the defendant, is in excess of the trains, passengers, [and freight to which the right of way was appropriated. This objection applies equally to transportation over the track of the old company, as over the track constructed by the defendant.

In Hatch’s case, supra, p. 120, it is said : “ The exercise of the right of eminent domain is primarily and mediately the act of the state; and corporations to which it has been delegated and by which it is immediately exercised, are but instrumentalities of the state, although they may have, and generally do have, corporate interests intermingled with, and growing out of, the exercise of this sovereign prerogative of the state.” The condemnation of private property for a public highway is the act of the state, subject to the private rights of the corporation to which the power was delegated. These private rights are granted by the state'in consideration that the corporation compensates the owner of the land for the right of way. The highway is dedicated by the state, and neither the corporation nor the owner in fee can divert the use., The owner of the fee can not, because he has been compensated in full for his interest in the land. The corporation can not, because it is the creature and agent of the state. The public use is equal to the capacity of the light of way. It is no concern of the owner of the fee what instrumentalities the state employs or permits to aid in utilizing the uses of the public highway. It may limit the use to a single corporation or may employ many corporations. This question concerns only the state and the appropriating company, and the latter only to the extent it has acquired private rights in connection with the public rights, by reason of having made *253compensation to the owner of the land for the right of way.

The defendant has obtained the consent of the appropriating company, and it has obtained the tacit, if not express consent of the state, and, as we have said, the owner of the fee, having received full compensation, has no right to complain. In other words, if the owner has received full compeusatson for the land, what further compensation is he entitled to for this supposed additional burden on the land, embraced in the right of way ?

These views are consistent with, and indeed underlie the policy of the state as expressed by its legislation from its earliest history in railroading. On the 3d of March, 1851, probably before the judgment of condemnation was entered in favor of Toledo, Norwalk and Cleveland Railroad Company, the predecessor of defendant in error, against Oliver, from whom plaintiffs derive their title, an act was passed which provided that “ any railroad company organized in pursuance of law may lease or purchase any part or all of any railroad constructed by any other company, if said companies’ lines of road are continuous or connected as aforesaid, upon such terms and conditions as may be agreed upon between said companies respectively. Or any two or more railroad companies, whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote the objects for-which they were created.”

On March 19, 1869, it was provided (66 Ohio L. 3'2) that, “any railroad company organized in pursuance of law, either within this or any other state, may lease or purchase any part or all of any railroad, the whole or a part of which is in this state, and constructed, owned, or leased by any other company, if said companies’ lines of said road are continuous or connected at a point either within or without this state, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroad companies whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote *254the objects for which they were created.” Such was the policy of the state, as expressed by its legislation in force at the time the defendant in error acquired its right to use a part of the right of way appropriated by the Toledo, Nor-walk and Cleveland Company. It is true that in this legislation many restrictions are imposed for the benefit of stockholders, of the state, and of the general public. These parties, however, have made no complaint against defendant in error. The only complaint is by plaintiffs in error, for whose benefit no provision is found in these statutes. Indeed, the general assembly has at all times assumed that the owner in fee, who had received full compensation for. the perpetual use of the right of way, had no such interest left in the land as required protection against what plaintiffs in error are pleased to call “additional burdens.”

By additional burdens are meant those which were not contemplated or compensated for at the time of the appropriation. We have shown full compensation was made for the use of the entire land embraced in the right of way for all time to come, subject, to be sure, to a reversion in case of abandonment or forfeiture. There has been no abandonment — no intention to abandon. Hatch’s case, 18 Ohio St. 120. Forfeiture comes by judgment — there has been no judgment. The transfer and use by the transferee for railroad purposes was contemplated. The defendant in error has subjected the right of way to no use or mode of use to which it was not subject by its predecessors within the contemplation of the parties at the time of condemnation. No trespass on land outside of the right of way is claimed. No right of transit from one side of the right of way to the other has been impaired. Indeed, no right of such transit was reserved by the owner in fee. No such right exists in the plaintiffs. The lands on the opposite sides of the right of way were severed by the'original condemnation. All communication was cut off. This burden or inconvenience was contemplated and paid for at the time the right of way was appropriated. There has been no burden outside of the land appropriated, or on adjacent land, which was not contemplated by the parties at the time of condem*255nation, and which, in contemplation of law, was not paid for to the full extent of damages resulting thereto.

It appears to me the summing up of defendant’s counsel is unanswerable. He reasons thus: “If the additional burden exists, it must be in respect to the land taken, or in respect to the adjoining land. It does not exist in respect to the land taken, for such land was fully paid for when originally condemned. On no other theory than ‘ full compensation to the owner ’ could land have been taken under the constitution of 1802; moreover, the easement acquired by the Lake Shore Company’s predecessor was perpetual. The easement thus acquired is transferable, and it is reasonable that when land has been taken by the state for the purposes of a highway, and has been fully paid for, and the easement so acquired is perpetual and exclusive against the owner, the state should be permitted to use as many instrumentalities to carry out the original purpose as public convenience or necessity may suggest. It is reasonable, because the purpose for which the land was taken is not changed; because all that can be done through all the instrumentalities selected by the state is no more than could have been done by the single company originally concerned; and because the owner is not injured by change of the medium through which the state accomplishes its purpose, except in imagination, for which imaginary injury the law gives no redress. The additional burden does not exist in respect to the adjoining laud, for the reason that not an inch of it is taken — not an inch of it is touched or excavated, and no right-was reserved to the adjoining land of access to, joint use of, or crossing over the strip that was condemned.”

The sixth proposition, that the quantity of land embraced in the right of way was fixed and determined between the parties, by the judgment of condemnation, is too plain for discussion. For the. whole of the land so embraced, compensation in full has been made, and it is unreasonable that the owner in fee should retain both the price paid and the land, or any part of it. If the land condemned exceeded *256the quantity necessary for the use of the road, but no objection on that accouut was made at the time, the judgment of condemnation concludes the owner in fee. If the power to condemn be abused in this inspect, the right to complain after condemnation, in fact, is in the state, not in the party who acquiesced in the act, and received compensation in full.

The seventh and last proposition is, that the non-user of portions of the right of way at the sides of the track of a railroad, is not an abandonment thereof to the owner in fee.

It was truly said in Hatch’s case, supra, that on a question of abandonment, the intention of the party is an element for consideration. No intention to abandon can be inferred against the defendant’s grantor from such a nonuser as that above named. Indeed, such non-user is merely technical and temporary. It is no evidence of an abandonment. Whenever circumstances require, the actual use of the whole right of way will become a necessity. It is a mistake to say that no part of the right of way is in use, except that covered by the track of the road. The exigencies of railroading may, at any time, require the occupation of ground at the sides of the track which has been unused for years.

It may be needed for repairs, for additional tracks, for fencing the road, etc. The law requires all railroads to be fenced. Where are the fences to be constructed and maintained? How much ground at the sides of the track is needed, for that purpose ? ■

Again, in condemning land for the purposes of a railroad, in a growing country like this, an increase in travel and traffic should be contemplated and provided for; the necessities of the present do not circumscribe the power of eminent domain. But if the grant of this power should be abused, as we have said before, after a judgment of appropriation, the power of the state should intervene to correct the evil. The present non-user of the whole of the land condemned is not equivalent to an abandonment of *257the whole or any part thereof. But whatever the remedy may be, it is clear to my mind, that the claim of abandonment can not be sustained by the owner in fee.