chaser. should be here protected as a bona fide purchaser, having no notice of plaintiff's claim. But we fail to see how Defendant not one can claim to be an innocent purchaser who innocent pur- accepts a conveyance from a vendor who is not able to exhibit a title. A prudent person, purpos ing to purchase the Rio Grande & Pecos Railroad, would have looked to see that the company had acquired its right of way either by purchase or condemnation. We find no error in the judgment, and it is affirmed. Liability of Burchaser at Foreclosure Sale to Compensate Landowner.— There is no longer any doubt that purchasers at a foreclosure sale are not liable for debts of the old company. Lake Erie & W. R. Co. v. Griffin, 92 Ind. 487, 17 Am. & Eng. R. Cas. 235, note 242; Chesapeake, O & S. R. Co. v. Greist (Ky.), 30 Id. 149, note 155; Cook v. Detroit, G. H. & M. R. Co., 43 Mich. 349, 9 Id. 443; Hammond v. Port Royal & A. R. Co., 15 Shand. (S. Car.), 10, 11 Id. 352. There has been some difficulty in determining what is to be included in "debts," within the meaning of the above rule. There can be no doubt however that if a railway company executes a mortgage upon its road, franchises, etc., and afterwards occupies land for its uses and damages are assessed, it has no interest in such land on which the mortgage can operate, and a sale under the mortgage would not convey the title nor extinguish the lien for the damages. Western Penn. R. Co. v. Johnston, 59 Pa. St. 290. And such a sale, before the damages to the landowner are paid or secured, will not divest his right to recover compensation for the occupancy of his land from the purchaser under the mortgage. Western Pa. R. Co. v. Johnston, 59 Pa. St. 290; White v. Nashville & N. R. Co., 7 Heisk. (Tenn ), 518. In a Wisconsin case the complaint, in substance, averred that plaintiff, in 1859, obtained judgment against the S. & M. R. Co., for damages for land taken by it for its road; that in 1861 the property and franchises of that company were sold under a mortgage or trust deed; that the purchasers took with notice of the existence and non-payment of said judgment; that they subsequently organized and became the company here made defendant which is operating the road built by said S. & M. Co., claiming to own the same and its appurtenances; that, in continuation of the appropriation of plaintiff's said land made by the last named company, defendant entered upon the same, and now holds, and ever since 1861 has held it to its own exclusive use and benefit, without plaintiff's consent; that plaintiff's said judgment is a valid subsisting one, wholly unpaid; and that the S. & M. Co., ever since the mortgage sale aforesaid, has been wholly insolvent, and has no existence in fact, but has been wholly merged in the defendant. Held, that plaintiff has a remedy in equity to compel the defendant to make compensation for the land, or stop running cars over it; but defendant is not liable in an action at law, for a debt, upon the judgment. Gilman v. Sheboygan & F. R. Co., 37 Wis. 317, 40 Wis. 653. Pfeifer v. Sheboygan & F. R. Co., 18 Wis. 155. distinguished. And in Gillison v. Savannah & C. R. Co., 7 S.Car. 173, it appeared that the charter of C., a railway company, authorized it to acquire lands by statutory proceedings, the land to " vest in said company in fee simple as soon as the valuation thereof may be paid, or tendered and refused." In 1860 C. commenced proceedings to acquire title to a parcel of A.'s land. It was valued, and C. appealed from the valuation, but did not prosecute the ap peal. C. took possession of the land, and having become insolvent, in 1866 all its property was sold and purchased by S., another and a distinct rail way company, which thereupon took possession of the land. In 1872, A. commenced his action against S. to have the valuation paid or the land restored to him; held, that he was entitled to the relief he demanded. The fact that a judgment against a railway company for taking land was obtained two years before the foreclosure sale and that the road had been operated over the land during that time and that no further steps were taken by suit to enforce payment of the damages until the new company had been occupying the land for thirteen years, does not constitute a waiver of the owner's right to compensation. Gilman v. Sheboygan & F. R. Co., 40 Wis. 653. Where a mortgage given by a railroad company is foreclosed, and all the property, rights, franchises and effects of such company are duly sold under the decree of foreclosure, and a new company is thereupon organized under the laws of this State, for the purpose of owning and operating the line of railway previously owned by the old company, with all its franchises, rights and property, the new railway company is not liable at law for the general debts of the old company, except such debt or debts as it may assume. But where the old company has appropriated land for the purposes of its railroad, and a judgment has been rendered against it for the value of the land appropriated or condemned, which judgment is unpaid, if the new company enters upon and occupies such land, it will be liable in equity for the payment of such judgment upon the principle that it has adopted and ratified the original appropriation. Lake Erie & W. R. Co. v. Griffin, 92 Ind. 487, 17 Am. & Eng. R. Cas. 235. VEZINA V. THE QUEEN. (17 Supreme Court of Canada Reports, 1.) Eminent Domain-Damages- Gravel Land. Where land is taken by a railway company for the purpose of using the gravel thereon as ballast, the owner is only entitled to compensation for the land so taken as farm land, where there is no market for the gravel. Injury from Operation of Road. The compensation to be paid for any damages sustained by reason of anything done under and by authority of K. S. C. chap. 39. sec. 3, sub-sec. (e), or any other act respecting public works or government railways, includes damages resulting to the land from the operation as well as from the construction of the railway. Farm Crossing-Damages for Want of.-The right to have a farm crossing over one of the government railways is not a statutory right and in awarding damages full compensation for the future as well as for the past for the want of a farm crossing should be granted. GWYNNE, J., dissenting. APPEAL from a judgment of the Exchequer Court of Canada, granting the appellant the sum of $2,871 and interest and costs on his claim for compensation against the crown, for land taken for the St. Charles Branch of the Intercolonial Railway. The appellant's claim in the exchequer court was for $7,476 divided as follows: Land expropriated, 5 arpents and 10 perches $ 800 00 4,4606 cubic yards of gravel at 6 cts. Damages 2,676 00 4,000 00 $7,476 00 and the learned judge of the exchequer court allowed claim ant For 8,077 arpents of land expropriated at $100 $ 807 70 2,064 10 $2,871 80 and there being no evidence of any tender he adjudged to the claimant interest from the date of expropriation and his costs. The railway crosses the claimant's farm in two places, dividing it into three parts: the north part on which are the claimant's house, barn and other buildings, the centre part, and the easterly part. Upon the appeal before the supreme court of Canada, the appellant did not complain of the valuation put upon the land expropriated as farming land in the judgment appealed from, but complained that he was entitled to a greater sum for damages, and that the court should have entertained his claim for the gravel taken from his land. Belleau, for appellant. Case stated. PATTERSON, J.-The land of the appellant, taken for the purposes of the St. Charles Branch of the Intercolonial Railway is a trifle over eight arpents, 5.10 arpents being taken for the track and 2.977 for a borrowing pit whence gravel for ballast is taken. The expropriation was made, as we are informed, in June, 1882, and not in August, as the learned judge of the Exchequer Court understood. The difference of date affects the computation of interest, as the valuation has to be made as of the date of the expropriation, 50-51 Vic. chap. 16, sec. 32. The evidence in support of the claim was not taken till May, 1888. There was therefore ample time to ascertain the extent to which the property of the claimant was affected. The railway crosses the claimant's farm in two places, dividing it into three parts: the north part on which are the claimant's house, barn and other buildings, the centre part, and the easterly part. The claim is for the land taken and for injury by the severance, and in other ways, to the remainder of the land. Damages for gravel land. The learned judge has allowed $807.70 for the land taken, being $100.00 per arpent. This valuation is not complained of so far as the five arpents taken for the track are concerned, and it is not asserted that the three ar pents taken for the gravel pit were, as farm lands, of any great value. But the claimant insists that it shall be valued with reference to the gravel, some 45,000 cubic yards, taken from it, as if he had sold the gravel at so much a yard. The learned judge considered that those three arpents were, to the owner, simply three arpents of his farm, not rendered any more valuable to him by the existence of a bed of gravel under the soil, as there was no market for gravel, and it became of value to the government only because the railway required it for ballast. I do not see any reason for finding fault with that view, and there is no doubt that the price per arpent of $100 was a liberal estimate. Allowance for depreciation of land remaining. In addition to the value of the land taken, the learned judge has allowed for depreciation of the remainder onethird of its value. He bases this calculatlon on an estimate of $7,000 as the value of the property, land and houses, and considers, rightly I think, the $7,000 an outside value. Then deducting the $807.70, which leaves $6,192.30, he allows onethird of that, or $2,064.10, making his whole amount $2,811.80. It must be an exceptional case in which, on a mere estimate of damage depending on appreciation of the evidence and the exercise of judgment, this court can be expected to interfere with the amount settled by the tribunal primarily charged with the inquiry, and which has facilities for arriving at a correct conclusion that are not possessed by the appellate court. Where the tribunal of first instance has proceeded on correct principles and does not appear to have overlooked or misapprehended any material fact, an appeal against the amount awarded will in most cases resemble an appeal against an assessment of damages in an action, which would be a hopeless proceeding unless some very special reason for the interference of the appellate court can be shown. This appeal is not addressed to the estimate of damages solely, but Mr. Belleau has, in the careful argument of which we have had the advantage, pointed out particulars in which he contends that the learned judge has taken incorrect views of the legal rights of the appellant. The learned judge has not awarded damages for the deEffect of rall preciation of each portion of the land by itself, but he has noted the views he took respecting the efportion of fect of the railway or works upon each portion. Thus of the northerly division he says: way on each Jand. Part I is injuriously affected, not by the construction, but by the operation of the railway. The injury as stated by the witnesses consists in the proximity of the railway to the claimant's buildings. In addition, at a point near the claim ant's barn, is the western end of a long snow shed from which trains emerge suddenly and without notice or warning, causing the claimant's horses to be much frightened. Both parties understood, as appears from their factums, that these damages from the operation of the railway of which the learned judge speaks were excluded by him in making his award. I think they were a proper subject for compensation under the statutes. Expropriation ActCompensa tion. By the Expropriation Act, R. S. C. chap. 39, sec. 3, subsec. (e.), the Minister is empowered to contract for the purchase of any land necessary for the construction, maintenance and use of the public work, and also as to the amount of compensation to be paid for any damages sustained by reason of anything done under and by the authority of that act or of any other act respecting public works or government railways. Sections 10 and 17 in their amended shape under 50-51 Vict., chap. 17, provide for a reference to the Exchequer Court when the Minister fails to agree with any person as to the value to be paid for any land or property taken, or for compensation as aforesaid; and by 50-51 Vict., chap. 16, sects. 30 and 31, some rules are laid down for the guidance of the court in determining the amount to be paid to any claimant for land or property taken for the purpose of any public work or for injury done to any land or property. Act. The terms under which the right to compensation is given are wider than those of the English Lands Clauses Act 1845, where the compensation is for "lands taken or reComparison quired for or injuriously affected by the execution with English of the undertaking," as in sec. 32, the expression being somewhat varied or expanded in other sections, as in sects. 49, 63 and 68; or those of the Railway Clauses Consolidation Act, 1845, section 6 of which requires the company to "make to the owners and occupiers of, and all other parties interested in any lands taken or used for the purposes of the railway or injuriously affected by the construction thereof full compensation for the value of the lands |