should die without leaving children to survive tending could be made only as the attitude her then in trust to settle and divide the princi- of this appellant towards the fund was defpal of my estate real and personal as follows," initely settled.

etc.

If this language has any meaning, it is this: That if any one of the class "children" survive, that one, comprising, as in the present case, the class, takes; and if no one of the class outlives the mother, the remainder over is effective. There is, of course, an absolute gift, and, if that were all, a child who once was of the class and predeceased its mother would have a vested interest; but the restriction must be read along with the words of the gift, for the gift and the proviso form one sentence.

Survivorship was a condition precedent; those only, therefore, who survived took. Mulliken v. Earnshaw, 209 Pa. 226, 58 Atl. 286, is directly in point, if citation of authority on what appears to the auditing judge so clear a proposition is needed; and see, also, Cascaden's Est., 153 Pa. 170, 25 Atl. 1075.

The remaining one-half of the estate, which, in and by the adjudication filed April 26, 1915, was directed to be retained by the accountant, is accordingly awarded to Louise Glading Stewart; and the accountant is directed to make payment and distribution accordingly, with leave to make any and all necessary assignments and transfers, to the guardian of her estate, upon his entering adequate security.

The court dismissed exceptions to the adjudication, in an opinion by Anderson, J. John R. Holihan appealed.

Argued before MESTREZAT, POTTER, STEWART, FRAZER, and WALLING, JJ. F. B. Bracken and Joseph Gilfillan, both of Philadelphia, for appellant. E. Clinton Rhoads, Maurice Bower Saul, Gustavus C. S. Welzel, and Clarence P. Culin, all of Philadelphia, for appellee.

STEWART, J. This case is ripe for final adjudication only in case we accede to the view adopted by the court below, namely, that the gift over to the children of testator's daughters upon the daughter's death was contingent upon their surviving their mother, and that under the terms of the gift children who died during the life of their mother took nothing. Were we to hold to the contrary, that the gift over upon the death of the mother vested in her children as they were born, a final disposition of the fund for distribution between the parties here con

Appellant was the second husband of the testator's daughter, Louise S., to whom was given by the will a life interest in the fund. By her first husband she had one daughter, Louise Glading Stewart, still living, a minor here represented by her guardian, to whom the entire fund has been distributed. Appellant's claim is that, having become the second husband of the testator's daughter, Louise S., a child was born to himself and wife which survived its birth but a few moments of time, and predeceased its mother by a day; that an equal share of the gift over vested in this child upon its birth; that estate passed to himself and wife, and upon by the law of inheritance this much of the the death of the latter intestate he succeeded.

Were we to hold that the gift was a vested remainder, it would yet remain for the appellant to establish his claim that the child through whom he claims had once been in life and being, capable of taking and transmitting an estate, a question about which there was serious contention in the court below, and in regard to which more or less testimony was taken. Because the adjudicating court was of opinion that the gift over was limited to children surviving their mother, it was thought unnecessary to make any raised. However confirmed the court was in finding of fact with respect to the question its view that the gift over was a contingent remainder, it should have contemplated the possibility of this court adopting a different view, in which event findings of fact with respect to the disputed question above referred to would be necessary to enable us to make final disposition of the case. What we have said is not to be understood as indicating any present view as to the legal question involved. Our decision of the case must await further and fuller findings by the court below.

Vacation of the decree appealed from is now ordered, The record is remitted for further proceeding, with leave to the parties to take further testimony with respect to this one question of fact.

R. H. Meloy, of Washington, Pa., and F. UNDERWOOD v. PENNSYLVANIA, M. & S. W. Downey, of Waynesburg, for appellant. William J. Kyle, of Waynesburg, for appellee.

[Ed. Note. For other cases, see Eminent Do- ter Sharpnack. Nothing further was done, main, Cent. Dig. §§ 407-416.]

Upon filing a bond to secure compensation by railroad to owner the title passes, and the pleas a verdict was directed for defendant right of damages is fixed, and the railroad can- on the ground that, as it appeared plaintiff not thereafter avoid payment by its abandon-purchased the land subsequent to the adopment of the right of way.

tion of the resolution of 1902 by deed which [Ed. Note.-For other cases, see Eminent Do- did not purport to convey the right to dammain, Cent. Dig. §§ 655, 851, 852.] 4. EMINENT DOMAIN

[2, 3] Numerous decisions from Williamsport & North Branch R. R. Co. v. Philadelphia & Erie R. R. Co., 141 Pa. 407, 21 Atl. Appeal from Court of Common Pleas, 645, 12 L. R. A. 220, down to the recent case Greene County.

John

164 Pa. 159, 30 Atl. 237; Dilts v. Plumville R. R. Co., 222 Pa. 516, 71 Atl. 1072; Fischer v. Catawissa R. R. Co. & Philadelphia & Reading R. R. Co., 175 Pa. 554, 34 Atl. 860.

Article 16, § 8, of the Constitution of Pennsylvania, in conferring the right of eminent domain, requires that corporations invested with the privilege of taking private property for public use "shall make just compensation for property taken, injured or destroyed." This provision and the decisions above referred to make clear that until compensation is made or secured no title as against the owner vests in the corporation notwithstanding a proper location of the right of way.

railroad by appropriate action of the com- subsequently evade payment by abandonment pany's board of directors; and, third, com- of the right of way. Wood v. Trustees of pensation made or secured by the corpora- State Hospital for Insane at Warren, Pa., tion to the owner for. the damages sustained by reason of the appropriation of his land. "These are the several steps held necessary to vest in the corporation the title to the owner's property under eminent domain proceedings. Each and every step is a prerequisite to the right of the corporation to deprive the owner of his property. When the route has been surveyed, marked on the ground, and adopted by the appropriate action of the board of directors of the corporation, the experimental stage has passed, and there is a fixed and definite location of the road. The route, including the termini, must be definitely determined by the board of directors. The land is then taken from the owner and appropriated to the use of the corporation. It has acquired a conditional title, good against rival corporations, but not as against the owner until compensation is made or secured to him. Until there is an experimental survey or surveys made on the ground and an adoption of the route, including the termini, by [4] In the present case the evidence fails the board of directors, there can be no appro-to show that Peter Sharpnack or his heirs priation of the owner's land. As said in our had actual notice of the resolution adopting cases, the act of location is at the same time the location over his land or that there was the act of appropriation, and, it may be added, the latter cannot take place without or in the such actual staking out of the route on the absence of the act of location. A legal appro- ground as would amount to constructive nopriation fastens a servitude in favor of the tice of such action. corporation upon the property taken." While such notice is ston v. Delaware, Lackawanna & Western R. not an essential prerequisite to a valid locaR. Co., 245 Pa. 338, and also page 342, 91 Atl. tion (Johnston et al. v. Callery, 184 Pa. 146, 618, 619. 39 Atl. 73), yet, until notice is received by the The court below based its decision mainly owner he cannot be affected by the action on the statement, as in the above case, which of defendant's directors in so far as his dealis also found in many other cases, that the ing with his property is concerned. act of the company in adopting a definite and [5, 6] And even if notice had been receivpermanent location amounts to an act of ap-ed, as nothing was done subsequent thereto propriation and fastens a servitude on the for a period of nine years, the owner in the property affected thereby. This language meantime having made a conveyance of the does not imply, however, that the landowner land, how can he be held to have retained is so far divested of title by the act of loca- the right to recover damages on the theory tion that his only recourse is a claim for that a part of the land was taken by a cordamages. It merely amounts to a notice to poration under its right of eminent domain, him that the company intends to condemn when in fact there had been no taking and the land, and that any act done by him sub- no certainty that there ever would be? A sequent thereto affecting the property and in- railroad company may survey and locate consistent with the use for which condemna- several routes before finally adopting one as tion proceedings are contemplated must be its permanent location, and may abandon all done at his risk. Wayne v. Penna. R. R. Co., but the one so chosen, subject to the right of 231 Pa. 512, 80 Atl. 1097. Before title can the landowner in the meantime to begin pass from the owner the company is required proceedings to compel completion of the apto take the third step, to wit, make payment propriation by payment of damages or entry or secure compensation by filing a sufficient of security. In the absence of such proceedbond. Williamsport & North Branch R. R. ings by the owner, and until damages are Co. v. Philadelphia & Erie R. R. Co., supra; paid or secured, title to the property covered Johnston v. Delaware, Lackawanna & West- by the located route remains in him, and on ern R. R. Co., supra. After the location is subsequent abandonment of the location by adopted, if nothing further is done by either the railroad company no right to damages the landowner or the railroad company with a for the taking of the land remains, the only view to securing or paying damages, title remedy of the owner in such case being an remains in the former, and entry by the lat-action of trespass for damages suffered beter without further action would be tortious. cause of the entry on the land. Western Penna. R. R. Co. v. Johnston, 59 Pa. Philadelphia, Harrisburg & Pittsburgh R. R. 290. If the corporation should abandon the Co., 203 Pa. 128, 52 Atl. 15. location as adopted all right to damages for If we hold the right to damages is absothe taking of the land ceases. Speer, Admin-lutely fixed at the time of the adoption of istratrix, v. Monongahela R. R. Co. (No. 1) the location, and, being a personal right, 255 Pa. 211, 99 Atl. 810, and cases there cited. would not pass with a transfer of the land, Upon filing a bond the title passes, the right we have the anomalous situation of the venof damages is fixed, and the company cannot dee losing the land taken without notice and

Mountz v.

of the purchase price of the lot and began! The decree appealed from reformed the the erection of a dwelling house thereon be- deed in accordance with the special prayer fore an examination of her title had been of the bill. By an amendment to the bill completed. The examination of the title dis- made on June 21, 1902, Mrs. Smith was closed the fact that the road reserved in the stricken out as a party plaintiff. The bill confirmatory deed was not the one reserved was further amended. The defendants deby the one of May 15, 1891, between Mrs. murred to the amended bill, and the court Smith and Mrs. White. It was an entirely overruled the demurrers, and the defendants new way, located on the land of the grantor, on November 12, 1902, appealed, and by an led nowhere, and was utterly useless. She opinion of this court filed April 22, 1903 (97 then informed Mrs. Smith of the error in the Md. 359, 54 Atl. 974), the rulings of the lowconfirmatory deed with respect to this right er court were affirmed and the cause was reof way. She alleged in her bill: manded for further proceedings. The mandate of this court was filed in the court below on May 28, 1903, and the answers of the several defendants were filed on June 25 and July 14, 1903, and replications thereto were promptly filed. Nothing further was til July 19, 1915-more than 22 years after done towards the prosecution of the case unthe execution of the deed, and more than 12 years after the institution of the suit—when

"That she thereupon brought said error to the attention of said Matilda Frances Smith, who in view of such error was unable to execute a deed to her with an absolute grant of the right to use the road as located in the deed of May 15, 1891."

It is an established fact in the case that prior to the 20th of September, 1894-the date of the deed from Mrs. Smith to Mrs. Shaffer-both the grantor and grantee had full knowledge of the mistake in the confirmatory deed complained of in this case. The deed to Mrs. Shaffer granted the right to use the way reserved in the confirmatory deed, and "especially the right to the use thereof in common with other owners abutting thereon to a road laid out southwardly of said herein described lot and adjacent thereto, and especially described and reserved in the deed from Matilda Frances Smith to David M. Patterson hereinbefore referred to." This way is spoken of in the testimony as the Patterson right of way, and it was the only one used by Mrs. Shaffer and her successors in title; but it is not a desirable road, and was described by one of the witnesses as "a narrow and tortuous descent from Mr. Burke's house down to the Baltimore & Ohio Railroad," and Mr. Burke testified that at some points it was dangerous. But it has been used constantly by Mrs. Shaffer and her successors in title for more than 22 years as the only means of ingress and egress to and from her property.

The bill in this case was filed by Martha Porter Shaffer and Matilda Frances Smith on the 29th of July, 1901, for the reformation of the confirmatory deed of February 2, 1893more than eight years after its execution and more than six years after the plaintiffs had full knowledge of the mistake alleged. The ground upon which the reformation is asked is that the location of the road reserved in the confirmatory deed was a mutual mistake of the parties; that it was meant by both parties to locate the road to the east and along the fifth line of the property described. The prayer of the bill was:

"That the said alleged confirmatory deed from Matilda Frances Smith to Mary Carter White, 'Exhibit D,' may be reformed in accordance with the intention of the parties as hereinbefore set out, i. e., by substituting in the clause of reservation the words, 'and lying to the east and binding on the fifth line,' in lieu of the words, and lying to the west and binding on the fourth

John H. Burke and Katherine Burke, his
wife, were upon their petition made parties
In the meantime,
plaintiffs in the cause.
Martha Porter Shaffer by deed dated March
11, 1907, sold and conveyed the property to
John P. Kavanaugh, who occupied it for
more than 3 years, and on the 9th of August,
1910, conveyed it to Burke and wife, who
did nothing towards prosecuting the case for
more than 4 years after they had acquired
title. Mrs. Smith and Mrs. Shaffer are dead.
Touro Smith, who will be referred to later,
and the justice of the peace who took the ac-
knowledgment of the deed, are dead, and
the only surviving person who had knowledge
of the circumstances under which the deed
was executed is Mr. White, who represented
his wife in the transaction.

The plaintiffs incorporated in the bill, as an explanation of their delay in instituting the suit, the following allegations:

"That since the execution of said confirmatory deed and the discovery by the said Matilda

Frances Smith and Martha Porter Shaffer of

the error therein contained in reference to the loserved, your oratrix Martha Porter Shaffer has cation of said right of way intended to be refrequently made the defendants Mary Carter White and A. Robinson White, her husband, offers and suggestions looking toward an amiwithout, however, getting a decided and final cable settlement of the difference between them, rejection of the same until shortly before the filing of this bill, and has delayed instituting legal proceedings for the correction of said fendants, being her neighbors and on good terms mistake in the hope and belief that the said dein respect to other matters, would prefer and decide to agree to the correction of said confirmatory deed amicably and without legal proceedings, notwithstanding which delay, from the time of the discovery of said mistake until the time of the filing of this bill of complaint in this cause, none of the defendants have been prejudiced in any way by the failure of your oratrix to take earlier action in the premises, nor has the position of any of said defendants with reference to said reserved right of way been changed in any degree, they having from time to time used the bed of said roadway for farming