Cox  V,  Louisville,  N. A. &  C. R. R.,  48  tnd. A  highwav  was  laid  out  over  plaintiff's

178 ;  Graham  v,  Columbus  &  I. C. R. R.,  land,  opened,  and  used  by  the  public. A

27  Ind. 260;  Birge  v,  Chicago,  M. &  St. railway  company  apin-opriated   the  road«

P. R. R. Co.,  65  Iowa,  440;  8. c,  20  Am. &  and  laid  its  road  upon  it,  without  the  assess-

Eng. R. R. Cas. 291 ;  White  v,  Wabash,  ment  of  damages  under  the  general  railway

St. L. ft  P. R. R. Co.,  64  Iowa,  28 ;  s. c,  law. The  company,  under  the  same  law,

17  Am. &  Eng. R. R. Cas. 82 ;  Holbert  v,  made  a  new  road  to  supply  its  place,  and
6Cyc.ofL.~38                             698


EMINENT  DOMAIN  Paymnt

the  land-owner  allows  the  company  to  take  possession  or  construct
its  track  without  making  any  objection  thereto,  he  will  be  held  to
have  waived  his  right  to  bring  ejectment.^

(4)  Trespass,  —  If  a  railroad  company  takes  possession  of  prop-
erty, claims  it  by  virtue  of  the  power  of  eminent  domain,  without
condemnation  by  statutory  proceedings,  and  payment  of  compen-
sation, the  owner  may  bring  an  action  of  trespass.*  And  it  is  no
defence  that  the  company  had  commenced  proceedings  for  con-
demnation of  the  property,  and  taken  an  appeal  from  the  report  of
the  commissioners.'  If,  however,  the  company  is  authorized  by
law  to  enter  upon  lands,  and  to  occupy  the  same,  and  it  does  so  in
the  manner  and  form  provided  by  the  legislature,  no  action  for
trespass  will  lie  against  it  ;*  unless  the  law  be  void  or  unconstitu-
tional, in  which  case  the  action  may  be  maintained.*  If  the
company  without  authority  appropriates  materials  outside  of  its
limits,  it  is  liable  to  an  action  of  trespass;^  or  uses  land  not
taken  for  a  cartway ;  "^  or  enters  on  adjoining  lands  to  construct  a
drain  •  or  lawfully  obstructs  an  easement  or  right  of  drainage,*  or

the  old  road  was  abandoned  without  a  Dubuque  &  P. R. R.,  10  Iowa,  540 ;  Hall
formal  vacation. Held^  that  the  owner  of  v,  Pickering,  40  Me. 548 ;  Mayo  v. City  of
the  soil  of  the  original  road  might  recover  Springfield,  136  Mass. 10;  Murray  zr. Fitch-
it  in  an  ejectment  Phillips  v. Dunkirk,  burg  K. R.,  130  Mass. 99;  Mathews  v. St
W. 