Page:Federal Reporter, 1st Series, Volume 4.djvu/314

300 , J-EDERAIi EEPOBTEB. �in terms required to be made before entry. Authorities are numerous that the party condetnning may, thus enter even where no right is given by the charter to the owner to ini- tiate proceedings for assessment of damages. �But I think the facts in this case, aside from the law as laid down, show a waiver of payment in advanee of the entry and construction of the road by Edward Schriber, the owner, and his heirs. The route of the Northern Pacific Eailroad Company was finally located over the locus in quo November 21, 1871. Edward Schriber purchased it in the month of January previous from the government. The railroad was constructed in the summer of 1872. There was no person Jiving upon the premises at the time, and it was uncultivated. The land being vacant at the time of entry by the plaintiff, on the definite location of the route, and the owner residing in the state of Pennsylvania, would not the clause in the company's charter, which authorizes it to enter upon vacant and unoccupied land, justify the entry? But conceding it would not, yet, when the entry was made, and the road in operation, an acquiescence for the shortest period is sufficient to warrant a belief that the owner intends to waive ail claims except, perhaps, for the damages, which could be assessed as well after as before entry. Certainly the earliest notification to the Company, according to the averments of the answer, was long after the construction by the plaintifif of its road over the land, and, though it is alleged in the answer that neither Edward Schriber in his life-time, nor his heirs, knew until 1873 that the plaintiff had constructed its road over this land, still, up to the time of the conveyance of their interest in the strip which crosses th« Northern Pacific Eail- road, in 1880, they only notified the plaintiff that they held it responsible for the trespass and use of the land, and have never commenced any proceedings to assert their rights. �The plaintiff has been in possession of the land since No- vember, 1871, and operating its road since 1872. Under such circumstances a license is implied. �It is conceded by defendants' counsel that the Barnesville & Moorhead Eailroad Company, as owner of a strip purchased ����