The opinion of the court was delivered, January 10,1856, by
Lowrie, J.
— Though railroad companies may make experimental surveys at pleasure, before finally locating their route; yet, certainly it has never been granted to them to haveexperimental suits at law, as a means of chaffering with the landowners for the cheapest route.
So soon as the company locate their road, and have made an effort to agree with the landowner, and not before, the process may be commenced by either party, for ascertaining the damages; and when they have been ascertained, by report, and judgment thereon, the judgment settles the right of the landowner to such damages, just as completely as any other judgment, and he has just the same right to execution upon it. He is not to wait until the company say they are ready to go on, else all improvements by the owners of property along such a route, must be indefinitely suspended .upon a contingent appropriation. If judgments are to be the end of strife, they must bind both parties; and the power of taking any man’s land is exhausted by a location which it is too weak to retain; it cannot be indulged with another choice.
Here the petition to settle the damages, is filed by the company, and they say that they have located their road over the land for which these damages are assessed. A report having been made and judgment entered thereon, it is a final judgment, entitling the party to execution. If the company have any equitable ground of relief, they must present it in some other form, than a mere motion to set aside a regular execution.
The order setting aside the execution in this case is reversed, and the plaintiffs in error have leave to proceed on their judgment, and the record is remitted.