This was a proceeding for the condemnation of the right of way for the railway.
The first and second instructions given for appellee, required the jury to estimate and assess the value of the land, as described in the petition. The width of the land taken, as assessed by the commissioners, was less than the width mentioned in the petition.
The railway company is not bound to take and pay for the land described in the petition, if less is needed for its purposes. Upon no principle is it estopped by the allegations in the petition, as to the quantity of the land to be taken, when its engineer is of opinion that a less quantity is sufficient for the right of way; besides, the statute under which this proceeding was commenced and conducted, determines this question.
The commissioners must examine the land taken and required by the company, and make a report to the clerk of the circuit court in the county in which the land lies. After the filing of the report, either party may appeal. Upon the trial of the appeal, the jury must find the value of the land examined by the commissioners and embraced in their report.
The report is the foundation of the appeal, and the width of land, as therein described, must control.
Suppose that a railway company, through inadvertence, or misapprehension of its necessities, or incompetency or unskilfulness of its agents, filed a petition for a wider strip of land than subsequent investigation showed was necessary, the petition should not be conclusive. By any fair interpretation of the statute, the company should not he compelled to pay for more land than is taken or required. When it acquiesces in the width adopted in the report, with knowledge of it, then it is concluded.
According to the view we have taken, the fifth, sixth and tenth instructions refused for appellant, should have been given. They are based upon the idea that, if the company, after the presentation of the petition, and before condemnation by the commissioners of a width of land for the right of way, required *478a less width, and so informed the commissioners, who acted upon the last requirement, then the report of the commissioners, and not the petition of the company, is the legal evidence of the land taken and required.
The jury rendered a verdict for a gross sum. The statute requires, that the jury shall find the value of the land so taken, and the damages which the owner may have sustained, over and above the benefits. The jury should have made a verdict in which should have been given the value of the land taken, also the amount of damages, and a description of the land taken, and the judgment should have conformed thereto. This would have been in accordance with the evident meaning of the statute. The rights of the parties can only be shown by such a verdict and judgment.
It is contended that appellee had no right to contest the matter of compensation, because he did not prove that he was the legal owner of the land taken; that the statute requires compensation to be made to the owner, and that this means the owner in fee.
The company filed its petition, alleging that appellee "was the owner of the land; the report of the commissioners, chosen at the suggestion of the company, showed that he was the owner, and there was proof before the jury that appellee was in actual possession when the condemnation proceedings were commenced. Such possession has always been held to afford a presumption of ownership in fee.
It is a singular position to take, that appellee has no legal right to litigate the question of compensation for the land taken. He has not brought this litigation; it has been forced upon him by the railway company; and now it insists that he must cease all opposition, and abandon his possession at the command of the company, unless he can prove a perfect title. If the company does not desire the condemnation of the land of appellee, let it dismiss the proceeding. It has acknowledged him as the owner, forced him into the courts for the purpose of determining his compensation for lands to be taken, and *479now modestly demands that no compensation shall be assessed, because he has not proved that he is the owner. The company must obtain a title to the right of way from some person. If not obtained from appellee, from whom can it be obtained, under the proceedings to condemn ? The argument insisted upon, if carried to its logical conclusion, would have the effect to dispossess appellee, and give the company the land without compensation to any one. Thus it would obtain its right of way without the payment of a dollar.
The cases cited in Pennsylvania and Massachusetts, have no application to the position assumed. In them the owners, under the statutes of those States, applied for the assessment of damages against the corporation. Here, the corporation proceeds to condemn, and alleges ownership in appellee.
In one case cited, Directors of the Poor v. Railroad Company, 7 Watts & S. 236, the directors presented a petition to have the damages assessed which had been done to their land by the location of the railroad, and averred that they were the owners of. the land. The court held that this was a material part of their case, and they were bound to prove it.
In the case at bar, the company has averred that appellee was the owner of the land, and it has no right to shift the burden of proof, to relieve itself from liability.
The alleged injury to appellee from the loss of the beneficial enjoyment of the spring, was a proper subject for the consideration of the jury. Whether he was deprived of it partially or wholly, is to be determined from the proof. If he could only enjoy it by a conveyance of the water across the railroad track, then there would be a total deprivation, unless the company would give him a perpetual license to flow the water across its right of way.
For the error in giving and refusing instructions, the judgment is reversed and cause remanded.
Judgment reversed.