dissenting. I am unable to concur with the con- * elusion of the majority of the court, so far as it relates to the effect of the location of 1850.
Even as between a railroad corporation, taking land by right of eminent domain, and the landowner whose land is so taken, a plan, referred to in the written statement of courses and distances, and filed with it, is competent to define the location intended; and where there is an omission in the written statement, or it is so imperfect that the lines of location could not be made out by it alone, the deficiency may be supplied by the plan. Andover v. County Commissioners, 5 Gray, 393. Grand Junction Railroad & Depot Co. v. County Commissioners, 14 Gray, 553.
But the question in this case is not of the sufficiency of the location as an exercise of the right of eminent domain.- The title "to the land in question was, at the time, in the railroad corporation making the location; and was a part of a larger tract designated-as “Depot No. 1.” If it be conceded that the location, as such, is limited by the written statement of courses, distances and breadth; and thus, although crossing Marginal Street, terminated within the street; yet it is manifest that there could have been no intention to make that the terminus of the road to be constructed. Accordingly the written statement, in defining the course of the centre line, declares that it extends “into Depot No. 1; ” and the plan shows, not only that the lines of location, if extended at all, must pass into that tract of land, but that they were in fact so extended upon the plan; cutting off a corner of the land, for which the petitioner now claims damages. The case finds also that the road was actually constructed in 1853 over the location shown by this extension of the lines, and that it has been used since that time for the purposes of the railroad. It is apparently a necessary part of the track by which to reach the ter minus of the road in that direction.
*541The real question in the case then is, whether land of a railroad corporation, thus appropriated and occupied by its structures for the exercise of its franchises, can be sold and transferred by the corporation without legislative authority. In this respect I cannot concede that it makes any difference whether the land was acquired by purchase or by the statute mode. The location is mainly necessary to define the limits over which the right of eminent domain is exercised and private property sequestered. It may be important in order to fix the extent of the appropriation to the public use, when private property is not taken. But to the extent of the actual occupation and physical adaptation to the public use it cannot be necessary; when the question arises between the public requiring the continuance of that appropriation, and the corporation seeking, by a sale, to discontinue it, or to pass the control of its franchises into other hands. Whittenton Mills v. Upton, 10 Gray, 582, 596. Commonwealth v. Smith, 10 Allen, 448, 456.
Against this public right, the mortgage of the railroad corporation was inoperative to transfer any part of the land essential to the exercise of its franchises, and actually appropriated and used therefor. The jury have found to what extent the land, purchased by this petitioner, had been previously so appropriated; and for so much of his land I can see no legal ground for any recovery against this respondent, succeeding, by legislative authority, to the corporation by which the road was made.