delivered the opinion of the court, May 10th 1875.
The land of the plaintiff was subservient only to the public right of way; of the right to the soil he was never divested, but only of the surface thereof, so far as was required for the public convenience. As soon as the common road was vacated, either by legal process or by abandonment, the right to such occupancy revested in the owner of the fee; Lewis v. Jones, 1 Barr 336; Chess v. Manown, 3 Watts 219; Chambers v. Fury, 1 Yeates 167.
It is certain then, that a private individual would have had no right without the consent of the owner, to have occupied the land in controversy, by permanent fixtures for his own use, even before the vacation of the highway. But this corporation, defendant, had no better right in the premises than a private person, unless such right was conferred upon it by some legislative enactment. “ If it possesses the right claimed, it must be found in the power specifically granted, or must result as a necessary implication from the express grant, and if it can neither be found in, nor implied from, the terms of the grant, it does not exist Plymouth Railroad Co. v. Colwell, 3 Wright 340, per Woodward, J.
Without such grant, though the company might haye the right of occupancy, yet it would be responsible for consequential damages resulting from an extraordinary use thereof. As where land had been appropriated by a turnpike company and damages paid, and by an act of the legislature the turnpike company was authorized to sell to a railroad company, and the latter to lay rails upon the road-bed of the former; held, that the owners of the land were entitled to recover the damages consequent upon the construction of the railroad; Mifflin v. Railroad Company, 4 Harris 182.
Such being the rule of law, whence did the defendant derive its right to appropriate the land in question ?
The learned court below held, that this right was derived from the 13th section of the Act of 1849. That by supplying the common road, under the provisions of that act, it became entitled to the use of the land formerly occupied by the public, and hence owed no duty to the owner by way of compensation. We think this construction not warranted by the terms of the statute.
The right of eminent domain’ is a very high and arbitrary one, *181and arises only ex necessitate rei, and will not be presumed to exist in a corporation, unless by express legislative grant. But such presumption does not arise from the Act of 1849.
That act provides only for the supplying of the public with an easement in substitution of that occupied by the railroad. It deals solely with the public rights. Without this provision such occupancy of the highway could not be had. The force of the act is exhausted in putting the company in the same position as though there had been no previous public claim to the land. The insurmountable obstacle of the dominant franchise is thus removed and the company is permitted to deal with the owner of the land as in ordinary cases.
The public rights were first to be provided for by supplying a new road; when that was done the old one was legally vacated, and the owner’s right to the occupancy of his land vested eo instante. That he might maintain ejectment against an intruder, whether a corporation or an individual, results as a necessary sequence of the above stated principles.
Our attention h as been called to the cases of the Philadelphia and Trenton Railroad Company, 6 Whart. 25, and Snyder v. The Pennsylvania Railroad Company, 5 P. F. Smith 340. But we need hardly say these are not in point. They but decide that the Commonwealth may grant to a railroad company the right to use a street or road, and that, under such grant, it cannot be made liable for consequential damages resulting to adjacent property holders from such use.
The defendant, in the ease under consideration, has failed to exhibit the grant necessary to bring it within the principles contained in the above stated cases, and hence has failed in the attempted analogy.
Judgment reversed and a venire facias de novo awarded.