The petitioner alleges, in substance, that on March 1, 1866, he became seised and possessed by purchase of the lot of land in question, and that, in November following, the Boston and Worcester Railroad Corporation, acting under legislative authority and the public right of eminent domain, took a portion of this land, to wit, the easterly portion, bounded on Marginal Street, the whole lot having a front of seventy feet only on that street, and the only access being from that front. He charges that by laying their tracks upon and over said front, crossing the same diagonally, they have impaired the access to the land, and, besides appropriating a portion to their own use, have thereby greatly diminished the value of the entire lot. He then goes on to say that the respondents, in the year 1867, were made a body corporate, by the consolidation of the Boston and Worcester Railroad Corporation and the Western Railroad Corporation, and that this new corporation (which succeeded to the rights and privileges and also to the liabilities of its respective predecessors) in May 1868 made a new location of their roads and tracks in East Boston, in place of that previously made by the Boston and Worcester Railroad Corporation, and “ thereby adopted and confirmed as their own ” that previous location and taking, so far as the same extended upon and over the land of the petitioner. He then avers that “ by the location of said road and taking of the land aforesaid ” he has sustained damage.
The first question for consideration is as to the precise subject matter of'the petition. Is it a claim of damages for the taking by the Boston and Worcester Railroad Corporation in 1866, or for that by the respondents in May 1868, or for both? This question is important, for the reason that, although the deed under which the petitioner holds his title to the land bears date March 1, 1866, and although for some purposes, and so far as himself and his grantors are concerned, his title may relate back to that date, yet the deed was not delivered to him until sometime in June 1867. The question between him and his grantors, as to their right to compel him to accept the deed and pay the *535stipulated consideration, had heen the subject of litigation in the mean time, and in June 1867 was decided by a decree of the court against him. The respondents insist that upon the facts reported he had no legal estate or interest in the land in November 1866, and no right to claim damages for any of the land then taken. It is therefore material to inquire whether, by the terms of his petition, his claim is to be confined to the land then taken, or whether it may apply to land taken in May 1868.
* It must be admitted that upon this point the petition is somewhat obscure. It describes the taking by the Boston and Worcester Railroad Corporation, and the damage thereby occasioned; it then, as if to explain why the claim for compensation is not prosecuted directly against that corporation, refers to the legislative action by which it ceased to exist, and its rights and liabilities were transferred to the new corporation, the respondents; and it then says that the respondents made a new location in place of the previous one, and thereby adopted and confirmed that previous one as their own. The petitioner does not say, in his complaint, what this new location made by the respondents was, or how it differed from the earlier taking ; and, what is perhaps still more remarkable, he wholly fails to say that it was an enlargement of the former taking, appropriating considerably more of his land, and cutting off a much larger part of his front. The peculiar form in which the petition is expressed may have been intended for the purpose of showing that the respondents had become liable for both the locations, and that they had not only taken some of the land themselves directly, but had adopted and assumed the responsibility for that which had been taken by the Boston and Worcester Railroad Company. It is not logically correct to say that the establishment of a new location, in place of an old one, is of itself an adoption and confirmation of the old one. We do not think that the petitioner has confined himself within such narrow limits as the respondents claim that he has. He charges substantially a new taking by these respondents in May 1868. Their answer admits that there was such a new taking, including a portion of the land described in the petition, in addition to that covered by the location of 1866. It is not necessary, in petitions *536of this kind, to describe in detail the extent of the damage, 01 the precise mode in which it occurred. It is enough to charge in general terms that a portion or the whole of some lot, specifically described, has been appropriated under legal authority to the use of the other party. We have no doubt, therefore, that the petition applies to the land taken in 1868.
The respondents then take the objection that the petitioner’s claim, even when thus limited, cannot be maintained, for the reason that their directors have voted to authorize their president to release and abandon to the petitioner such part of his land as was included in the location of 1868, and not in that of 1866; and that in pursuance of this vote, a document in writing and under the corporate seal has been filed with the board of aldermen in Boston, abandoning and withdrawing .so much of the location of 1868 as was taken from the petitioner’s land, and not included in any previous location. And they have also tendered to the petitioner a formal deed of release and quitclaim, to the same extent. But all this took place since the petition was filed. The release, and also the deed, are accompanied with certain conditions, which perhaps are not onerous or unreasonable in themselves, but which nevertheless to some extent impair the value of the concession. It is clear, we think, that the petitioner is not bound in law to accept the release so tendered, and that the rights of the respondents in the matter were amply protected by the ruling of the court, that this attempt to abandon and release was proper for the consideration of the jury, in mitigation and reduction of damages. This was all that the respondents had a right to ask.
It is provided by the Gen. Sts. c. 63, § 38, that a railroad corporation, after having taken land for its road, and with a certain limitation as to time, may vary the direction of the road in the place where such land is'situated, but within the limits fixed by its charter. It may perhaps be questionable whether the various statutes, under which these respondents justify their action, have not so fixed the termini and intermediate points of the road as to exclude any variation beyond those limits. Boston Providence Railroad Co. v. Midland Railroad Co. 1 Gray, 340, 362. But however that may be, this point is not taken by the respondents *537in their answer; if it were open to them, the alleged variation is made to depend upon a condition, and is accompanied with a qualification for which the statute furnishes no authority whatever. A new location, which is to be void and of no effect, if it cannot legally be made without leading to a certain other result, no provision or intimation being made in what way or at what time that contingency is to be made certain, is not the kind of variation allowed by the statute.
The result then is, that, so far as the petitioner’s claim relates to damages under the location of 1868, there was no material error in the instructions to the jury.
With regard to any previous taking of the land, the respondents deny the petitioner’s right to recover damages, on the ground that the legal title had not vested in him at the time. But before the filing of the location of 1866, he had made a contract for the purchase of the land, and had thereby become equitably entitled to a conveyance upon the performance of the conditions of the purchase. The price which he had agreed to pay was made up on the assumption that he was to become the owner of the entire lot, unincumbered by the action of the respondents in appropriating a portion of it to their own use. Under the decree of this court, he has been compelled to fulfil his contract, and to pay the price of the entire lot. The effect of this decree is that he gets from his grantors less than he contracted for, and that all the damage resulting from the construction of the respondents’ railroad falls upon him, and not upon the parties from whom he derived his title. So far as it is a question between him and his grantors, there can be no doubt that the compensation for the taking equitably belongs to him, and not to them. If it should be paid to them, the result would be that they would be paid a second time, for what they have already sold and been paid for. They have already been paid for the entire lot, and if in addition to the price paid them they were to proceed and recover damages for land, taken after they had ceased to have the equitable title,, on the ground that they had not parted with the legal title, they would be liable for any amount so recovered to the petitioner, as his trustees. It is a mere question whether he can claim the *538damages in Ms own name, or is bound to sue for them in the name of the grantors, in whom the legal title stood. We do not think that, in proceedings of this nature, there is any inflexible ' rule of law that requires the court to shut its eyes to the real interests of the parties, or to refuse to take into consideration their substantial rights and equities in relation to each other. All that the respondents are entitled to is that they shall not, after paying the damages to one party, continue liable to pay them to another. If we hold that the effect of the decree, for the purposes of this trial, is to carry the petitioner’s title back to the date of the deed, (which the court has held was properly tendered and should have been accepted,) exact justice will be done, and the respondents will be protected by the judgment. In Proprietors of Locks & Canals v. Nashua & Lowell Railroad Co. 10 Cush. 385, it was decided that the owners of equitable or contingent interests might properly join with the owner of the fee in the application for damages, “ and that as they would all be bound by the judgment in such case, it operates as a security to the respondents, and cannot affect them injuriously, although such petitioners are not, in a strict sense, joint owners or proprietors of the land.”
For these reasons, we must hold that the petitioner is also entitled to damages for the land taken in 1866, according to its value at that time. It becomes then necessary to inquire what portion was then taken, and upon this point the court is not unanimous in the decision. The location filed by a railroad corporation, describing lands taken for the use of their road, is, in case of ambiguity, to be most strongly construed against them. A majority of the court is of the opinion that no part of the lot of land described in the petition is shown to have been included in the location of 1850. The entire lot was a portion of a larger tract known by the name of “ Depot No. 1,” the whole of which, in 1850, was the property of the Grand Junction Railroad and Depot Company. That corporation had no occasion to “ take,” or “ locate,” in the exercise of authority conferred by the legislature, under the right of eminent domain, a right of way over its own lands. It was vested with that right already, independently of any legislative grant. Within its own limits it had full power,. *539as a landowner, to lay down,- and also to alter at its own discretion, such lines of track, turn-tables and sidings as it might find convenient. The terms of the location of 1850 must be admitted to describe a fine leading by various courses from the Chelsea line to and perhaps across Marginal Street. For the purposes of location strictly so called, that is to say, for the purpose of showing what line of way is laid out, and what lands are appropriated, by authority conferred by the legislature, it was only necessary for the corporation.to give a description bringing the road to the line of their own land; or in the language of the location “ into Depot Ho. 1.” Their description actually given is fully satisfied, without including in the location any portion of that lot, and it does not undertake to define what the line should be after it reached their boundary, or how far it should extend into their own land; in other words, the description ceases at the point where the line reaches the boundary of “ Depot Ho. 1.” It is true that a plan accompanies the description, and is placed on file with it, as a part of the location; and it is true also that the line as delineated on that plan is prolonged, so as to extend somewhat into the lot of land known by that name. But it is to be observed also that while the location defines the width of the land taken on each side of the principal line, as far as Marginal Street, neither the location itself, nor the plan filed with it, affords any means of determining such width beyond that street. In the opinion of the majority of the court, the proper function of this plan is to aid and illustrate the written description, but not to enlarge or control it. It was intended to show, for the purposes of location, the manner and place in which the proposed railroad entered into the corporation’s own land, but not to extend the location, in the technical sense of that term, upon or over any part of Depot Ho. 1.
Upon the ground therefore that the location of 1850 leaves it ambiguous and uncertain, to say the least, whether any portion of that lot was taken at that time under public authority, it is held that the petitioner is entitled not only to damages for the land taken in 1868, but also for all that was included in the location filed in 1866 , and that this latter item is to be computed upon *540the assumption that the respondents had acquired no right in any part of the land under any previous taking. Upon this view of the case the petitioner would be entitled to the sums assessed by the jury in their answers to the second and third questions submitted to them.
Colt, J., did not sit in this case.