The fact that there is a limitation of the amount to be expended does not invalidate the law for taking property; U. S. v. Ry. Co., 160 U. S. 668, 16 Sup. Ct. 427, 40 L. Ed. 576.
When the title passes. It naturally fol lows that no title can be acquired under the proceedings until the compensation is paid or so secured as to be treated in law as the equivalent of payment. Accordingly when the title is permitted to vest before payment, it is said to be subject to a claim for com pensation in the nature of a vendor's lien enforcible in equity ; Lewis, Em. Dom. § 620, and note citing cases. And a sale or mort gage of the property could only be made sub ject to such prior right of the landowner, which is maintained by some courts on the theory of a lien, and by others on that of title remaining in the owner ; id. § 621. In Pennsylvania, however, an extreme doctrine prevails; the appropriation is valid and ef fectual where compensation is paid or se cured; Levering v. R. Co., 8 W. & S. (Pa.) 459 ; McClinton v. R. Co., 66 Pa. 404 ; Dimmick v. Brodhead, 75 Pa. 464 ; and title passes when the bond is approved by ale court un der the statute; Fries v. Mining Co., 85 Pa. 73 ; and remains vested even if the bond is found to be valueless ; Wallace v. R. Co., 138 Pa. 168, 22 Atl. 95; and there is no lien for compensation; Appeal of Hoffman, 118 Pa. 512, 12 Atl. 57. By the act of location the corporation acquires a conditional title as against the land-owner, which becomes ab solute upon making or securing compensa tion ; Williamsport & N. B. R. Co. v. R. Co., 141 Pa. 407, 21 Atl. 645, 12 L. R. A. 220; as against third parties there is a valid loca tion after entry made, lines run, map pre pared, and a report made to the directors and adopted by them; Pittsburgh, V. & C. Ry. Co. v. R. Co., 159 Pa. 331, 28 Atl. 155; but running a line, making a map, and a re port to the directors, not acted on, did not confer title to the location to justify an in junction to restrain another company from taking the land for a railway, though the land was owned by the plaintiff company ; Williamsport R. Co. v. R. Co., 141 Pa. 407, 21 Atl. 645, 12 L. R. A. 220.
If a land-owner, knowing that a railroad company has entered upon his land, and is engaged in constructing its road without hav ing complied with a statute requiring either payment by agreement or proceedings to con demn, remains inactive and permits it to go on and expend large sums in the work, he cannot maintain either trespass or eject ment, and will be restricted to a suit for damages ; Roberts v. R. Co., 158 U. S. 1, 15 Sup. Ct. 756; 39 L. Ed. 873.
The actual cash market value, at the time, of property actually taken must be allowed; Burt v. Wigglesworth, 117 Mass. 302 ; Mis sissippi River Bridge Co. v. Ring, 58 Mo. 491; Chicago, K. & W. R. Co. v. Parsons, 51 Kan. 408, 32 Pac. 1083 ; Chicago & E. R. Co. v. Jacobs, 110 Ill. 414 ; Mississippi & R. Riv er Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206. It has been said that the true criterion of market value is the sum which the property would bring if sold at auction, conducted in the fairest possible way ; Low v. Railroad, 63 N. H. 557, 3 Atl. 739 ; but this is not the result of the best considered cases. "Market value means the fair value of the property as between one who wants to purchase and one who wants to sell an ar ticle; not what could be obtained for it un der peculiar circumstances ; not its specula tive value; not a value obtained from the necessity of another. Nor is it to be limited to that price which the property would bring when forced off at auction under the ham mer ;" Lawrence v. Boston, 119 Mass. 126; it is measured by the difference between what it would have sold for before the in jury, and what it would have sold for as af fected by it; Setzler v. R. Co., 112 Pa. 56,
4 Atl. 370 ; what would be accepted by one desiring but not obliged to sell and paid by one under no necessity of buying; Pitts burgh, V. & C. Ry. Co. v. Vance, 115 Pa, 325, 8 Atl. 764 ; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51; it is not to be measured by the interest or necessity of the particular own er; Pittsburgh & L. E. R. Co. v. Robinson, 95 Pa. 426 ; nor, on the other hand, by those of the appropriator; Montgomery County v. Bridge Co., 110 Pa. 54, 20 Atl. 407; San Diego Land & Town Co. v. Neale, 88 Cal. 50, 25 Pac. 977, 11 L. R. A. 604; Selma, R. & D. R. Co. v. Keith, 53 Ga. 178; Everett v. R. Co., 59 Ia. 243, 13 N. W. 109 ; when these principles are fairly applied due considera tion may be given to auction value; Pitts burgh, V. & C. Ry. Co. v. Vance, 115 Pa. 325, 8 Atl. 764 ; but its availability for other spe cial purposes to which it is particularly adapted by reason of "its natural advanta ges, or its artificial improvements, or its in trinsic character," may be considered as an element of value; Lewis, Em. Dom. § 479, and cases cited; as, for railroad approaches to a large city ; Webster v. R. Co., 116 Mo. 114, 22 S. W. 474 ; Mississippi River Bridge Co. v. Ring, 58 Mo. 491; or for a bridge site; Young v. Harrison, 17 Ga. 30; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51; or a mill site; Louisville, N. 0. & T. R. Co. v. Ryan, 64 Miss. 404, 8 South. 173 ; so also its situation and surroundings for railroad purposes; Currie v. R. Co., 52 N. J. L. 391, 20 Atl. 56, 19 Am. St. Rep. 452 ; Cohen v. R. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242; John son v. R. Co., 111 Ill. 413 ; or market-garden ing; Chicago & E. R. Co. v. Jacobs, 110 Ill. 414; or subdivision into village lots; Wat son v. Ry. Co., 57 Wis. 332, 15 N. W. 468; South Park Com' rs v. Dunlevy, 91 Ill. 49; Cincinnati & S. Ry. Co. v. Longworth's Ex'rs, 30 Ohio St. 108; or in case of a pond, for ice or milling, there being no other one near; Trustees of College Point v. Dennett, 5 Thomp. & C. (N. Y.) 217; or for warehouse purposes ; Russell v. R. Co., 33 Minn. 210, 22 N. W. 379. When the water of a stream running through a farm was taken by a vil lage for its waterworks, the owner was en titled to damages, not only for being deprived of the water for farm purposes, but also for being deprived of the opportunity to sell water rights to prospective purchasers of vil lage lots plotted out for sale in a part of the farm; Bridgeman v. Village of Hardwick, 67 Vt. 653, 31 Atl. 33. The pollution of a stream so as to render it unfit for use in a paper mill, resulting from the opening of a railroad through the land, was a proper ele ment to be considered in estimating the dam ages ; Rudolph v. R. Co., 186 Pa. 541, 40 Atl. 1083, 47 L. R. A. 782. So its adaptability for the particular purpose for- which the con demnation is bought may be shown, as is lands well situated for boom purposes ; Mis sissippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206 ; or the bed of an old canal desired for a railroad ; In re New York, L. & W. R. Co., 27 Hun (N. Y.) 116. But mere speculative opinions and considera tions will be excluded from consideration; Gardner v. Brookline, 127 Mass. 358; Tide Water Canal Co. v. Archer, 9 G. & J. (Md.) 479 ; Chicago & E. R. Co. v. Blake, 116 Ill. 163, 4 N. E. 488• Pittsburgh & W. R. Co. v. Patterson, 107 Pa. 461; Watson v. R. Co., 57 Wis. 332, 15 N. W. 468; New Jersey R. Co.