%'■ ^' THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF James R. Hutter 'ii7 Bus. Adm. THE LAW OF RAILWAYS EMBRACINQ THE LAW OF CORPORATIONS, EMINENT DOMAIN, CONTRACTS, COMMON CARRIERS, TELEGRAPH COMPANIES, EQUITY JURISDICTION, TAXATION, THE CONSTITUTION, RAILWAY INVESTMENTS, &c. BY ISAAC F. REDFIELD, LLD. SIXTH EDITION, BY J. KENDRICK KINNEY. Vol. I. BOSTON: LITTLE, BROWN, AND COMPANY. 1888. Copyright, 1888, By Little, Brown, and Comi'ant. y £Z47fr Universitt Press ; Jons Wilson and Son, Cambridge. K Si PREFACE TO THE SIXTH EDITION. It is hoped that nothing may be found too seriously amiss in this new edition of a book which now may be called an old one. Pains have been taken to make it not unworthy of a place by the side of those which have pre- ceded it ; but the effort has not been without its embar- rassments. Since the publication of the last edition the reports have overflowed with an ever-increasing number of cases in this field of the law ; and it has been a work of no small difficulty to find in the general mass the decisions bearing on the topics originally treated, and so to apply them as to keep the work within its former compass, and still to leave it not less complete as a present statement of the law of railwa3's than it was left by its author. The form of the book has been left unchanged, and the text also, except in a very few passages which had escaped the proof-reader, or which bore on a state of things that has now passed away. The old notes, however, have been freely rewritten in order to make room for new matter. J. K. K. Chicago, November, 1887. AUTHOR'S PREFACE TO THE FIFTH EDITION. We have made no change in the arrangement of the work, in this edition, except to place the title of each sep- arate portion of the work on the leaf preceding it, and to number the Parts, and place their titles on the first page of the Table of Contents, as a Summary ; thus enabling any one to see at a glance what the work contains. It will thus be seen that it really embraces the discussion of thirteen distinct topics of law, in each of which is em- braced an analysis of the law, almost as comprehensive and complete as a distinct treatise. The Parts upon Corporations ; Common Carriers of Goods and Passen- gers ; Telegraphs ; Mandamus ; Certiorari, and some others, are complete treatises, and all the Parts embrace everything pertaining to railways, and much more. The plan of the work is novel, but it seems the only one suited to such a work ; and by striking out nearly all the opinions in the notes, and rearranging to some extent the other portions of the notes, so as to bring them into the same order as if now prepared for the first time, we have saved nearly space enough for the new matter added, and at the same time have been able to have the work come nearer its original ideal — that of giving the syste- matic analysis of principles in the text, and a complete digest of all the cases in the notes — than has ever been possible before. PREFACE TO THE FIFTH EDITION. V The American opinions found in the notes to the for- mer editions were originally inserted, because they con- stituted, to some extent, the basis of important doctrines connected with the law of railways, and could not be readily obtained elsewhere by the profession in many por- tions of the country. But now that we are able to fur- nish the leading American cases upon the subject in separate volumes, to those who desire to obtain them in that form, there seems no propriety in longer incumber- ing the pages of our principal work with any of them, however indispensable it might formerly have been. And although many law book-makers have adopted that course, and some of high authority, at an early day, we are glad to see that the fashion is going into disuse, as we have long since become convinced it was not the best mode, either in writing or editing law books, and have elimin- ated as fast as possible all extended opinions from all law treatises with which we have had to do of late. Where an opinion contains the basis of the law upon a particular point, as some of the English cases do, and possibly some few of the American cases, it may as well be given in that form ; and when a brief extract from an opinion gives the very point we desire, it comes with more weight in that form than any other ; but, beyond that, opinions should never be permanently retained in text- books. The additions to the present edition, both in the text and notes, have been very large for the short time since the former one, covering about a hundred pages in the work itself, besides the appendix of the latest cases, re- ported while the work was in press. AVhen any late case establishes any new point it is inserted in the text, and the exact point of all the new cases is given in the notes, when it varies in an}' particular from those before stated. Vi PREFACE TO THE FIFTH EDITION. We have not the vanity to suppose the work will be found perfect, or complete in all its details. That is scarcely to be expected in any work covering so wide a space. But we believe it contains as much that will be found useful and instructive, both to students and the profession generally, as it would be reasonable to expect in the same space, without such an extreme degree of condensation as greatly to impair both its clearness and completeness. In taking leave of our professional brothers, we beg to assure them how deeply and gratefully we appreciate their uniform kindness and respect ; and our only surprise is, that, in our humble and patient way of daily toil on their behalf, we should have been able to earn so much at their hands. We will not, however, impugn their good sense and discrimination by presuming to doubt its propriety, however difficult it may be for us always to compre- hend it. I. F. R. Boston, Jan. 1, 1873. SUMMAHY OF CONTENTS. PART I. The Law op Preliminary Associatioxs 5-38 PART II. The Law of Corporations 39-215 PART III. The Law of Right of Way, Eminent Domain, etc. . . . 217-402 PART IV. The Law of Contracts as applied to the Construction of Railways and Telegraphs; Tolls, etc 403-463 PART V. The Law of Liability for Fires; Injuries to Domestic Animals; Fences 465-533 PART VI. The Law of Agency as applied to Railways 535-670 PART VII. The Law of Mandamus and other Prerogative Remedies as applied to Railways 671-727 ANALYSIS OF CONTENTS. CHAPTER I. INTRODUCTION. PlOl 1. Origin of railways in England 1 2. First built on one's own land, or by special license froni the owner ... 1, 2 3. Qncstions in regard to private railways 2 4. liailways in America, public grants 2 6. Use of steam-power on railways 2 6. The franchise of a railway not necessarily corporate, nor unassignable . . 3 PART I. THE LAW OF PRELIMINARY ASSOCIATIONS. CHAPTER II. PUBLIC RAILWAYS AS CORPORATIONS. — PRELIMINARY ASSOCIATIONS. SECTION I. MODE OF INSTITDTING RAILWAY PROJECTS. 1. Subscribers' associations in England 7 2. Subscribers bound by subsequent charter 7, 8 3. Issue and registry of scrip certificates 8 4. Original subscriber liable to unregistered purchaser 8 5. Holders of scrip entitled to registry 8,9 6. Preliminary associations not common in this country 9 7. Petitioners for incorporation file plans and surveys 9 8. English statute of 18(52 ' 10 0. Prehiiiiiiary associations may be registered 10 10. Not now held responsible as partners in England 10 SECTION n. CONTRACTS OF THE PROMOTERS NOT BINDING AT LAW ON THE COMPANY. 1. In this country promoters bind only themselves and associates . . . .10,11 2. Contracts of promoters not enforceable by company 11, 12 '6. But by consenting to a decree in equity setting up the contract, the com- pany will be held to have adopted it 12 X ANALYSIS OP CONTENTS. SECTION III. SUBSCRIBERS TO THE PRELIMINARY ASSOCIATION INTER SE8B. 1. Liability for acts of directors limited by terms of subscription .... 12, 13 2. Association not binding until preliminaries are complied with 13 3. Contracts, how far controlled by oral representations of directors .... 13 4. Subscribers not excused from j)aying calls by contract of directors . . 13,14 5. Not liable for expenses, except by terms of agreement 14 6. Deeds of association generally make provision for expenses 14 7. One who obtains shares, without executing the deed, not bound to contribute 14 n. 12. No relation of general partnership subsists between subscribers . 14, 15 SECTION IV. CONTRACTS OF THE PROMOTERS ADOPTED BY THE COMPANY. 1. Liability in general transferable with assent of creditors. But not if inequi- table 15, 16 n. 3. Powers of provisional company to contract limited by statute. ... 16 SECTION V. HOW CONTRACTS OF THE PROMOTERS MAY BE ADOPTED BY THE COMPANY. Company cannot assume the benefit without the burden 16 SECTION VL CONTRACTS BETWEEN THE PROMOTERS AND 0PP03ERS OP A BILL FOR THE CHARTER OF A RAILWAY. 1. English cases numerous and important 17 2-5. Lord Eldon's opinion in case of Vauxhall Bridge Co 17-19 SECTION VIL CONTRACTS OF THE PROMOTERS ENFORCED IN EQUITY. Case of Edwards v. Grand Junction Railway 20-22 SECTION VIIL CONTRACTS OF THE PROMOTERS BINDING ON THE COMPANY AT LAW. Case of Howden v. Simpson 23, 24 SECTION IX. WHAT CONTRACTS BETWEEN THE PROMOTERS OF RAILWAYS AND OTHERS WILL BE ENFORCED, EITHER IN LAW OR EQUITY, AGAINST THE CONTRACTING PARTIES OR THE COMPANY. 1. Contract to take land of opposing party 24,25 2. Contract prejudicial to the public 25 n. 3. Other contracts which the courts will enforce 25, 26 ANALYSIS OF CONTENTS. XI SECTION X. CODRTS OF EQUITY WILL ENFORCE CONTRACTS WITH THE PROMOTERS. Bona ^e contract, not evasive of statute, valid 26 SECTION XI. 80CII CONTRACTS ENFORCED WHERE THE RAILWAY IS ABANDONED. 1. Where a certain sum is to be paid to quiet opposition 27 2. Merely provisional contracts not always enforced 27-29 SECTION XII. PRACTICE OF CODRTS OF EQUITY IN DECREEING SPECIFIC PERFORMANCE. 1. Mutual arrangements protected in chancery 29,30 2, But decisions arc conflicting. In cases of doubtful riglit, plaintiff is remit- ted to common-law remedies 30 n. 2. Stutemt'nt of cases 30, 31 SECTION XIII. SPECIFIC PERFORMANCE IN COURTS OF EQUITY. Object of courts to compel good faith when a definite contract is made . . 81,32 SECTION XIV. COURTS OF EQUITY MAY RESTRAIN A PARTY FROM OPPOSITION OR PETITION IN PARLIAMENT. 1. Such cases not common in practice 32, 33 2. Such cases not readily recognized 33 SECTION XV. CONTRACTS TO WITHDRAW OPPOSITION TO RAILWAY PRO,TECTS, AND TO KEEP T\l\> SECRET, AGAINST SOUND POLICY, AND WOULD SEEM TO BE ILLEGAL. 1. Principle of foregoing decisions obscure 33, 34 2. Not adi>i)ted in this country unless tirms inserted in charter 34 3. Recent change of views in EngUsii courts 35 3-5. Statement of late case in which principle of Edwards v. Grand Junction Railway is doubted 35 6. Act of incorporation should not be varied by oral testimony 35 7. Contracts to quiet opposition not favored in this country 36 n. 5. Some English and American decisions 30, 37 8. Regarded as ultra virrs 37 9. May be enforced, if legislature not exposed to be misled 37, 88 Xii ANALYSIS OF CONTENTS. PART II. THE LAW OF CORPORATIONS. CHAPTER III. RAILWAYS AS CORPORATIONS. SECTION I. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 1. Tlie existence of coqjorations is of early date 41 2. Tlie different kinds of corporations. Sole and aggregate 41,42 3. This work treats chiefly of aggregate joint-stock corporations 42 4. Corporations are eitiier ecclesiastical or lay 42 5. So they are divided into eleemosynary and civil corporations . . . . 42, 43 6. Corporations are public or private 43 7. Private corporations, where stock is private property 43 8. Public corporations, where stock is owned and the management retained by the state 43 9. It does not affect the private character of a corporation tliat the state or the Uniteil States own a portion of the stock 44 10. Distinction between corporations and partnerships. The latter defined . 44 11. Further definition of the distinction between corporations and partnerships 45 SECTION II. HOW CORPORATIONS ARE CREATED. 1. Corporations created by grant of the sovereignty. Tliis may be proved by implication or by presumption 45, 46 2. The sovereignty may establish corporations by general act, or by delega- tion or procuration 46 3. Different forms of defining a corporation 46, 47 4. Tlie corporate action of corporations restricted to state creating them . . 47 5. It may act by its directors and agents in other states 47, 48 n. 10. But cannot properly transfer its entire business to another state . . 47 6. A college located at one place cannot establish a branch at another ... 48 SECTION III. CONSTITUTIONS OF CORPORATIONS, AND MODE OF PROOF. 1. Definitions of the diflFerent senses of the term " constitution," as applied to corporations 49 2. How corporations may be composed or constituted 40 n. 1. The question illustrated more in detail 49,50 3. Distinction between legislative, electoral, and administrative assemblies not essential 50 4. Corporation can act only by its nnme. Subject discussed 50 5. Any deviation from the name allowed, if the substance and sense be pre- served 50, 51 0. Courts of equity will not restrain corporations from applying for enlarged powers 51 7. Change of constitution. ECfect of change of name 51 ANALYSIS OF CONTENTS. Xlll 8. Courts of equity will enJDin a new corporation from assuming the name of one of estiibiisiied creilit 51,52 y. Promissory note [)ayablo to A. IJ., treasurer of a corporation, n)ay be sued in the name of A. B. Promissory note lor subscription waives condi- tion 52 10. Corporation may be estopped to deny its existence. How described . . 52, 5; J 11. How tlic existence and non-existence of corporations may be proved ... 63 12. Party to written contract, payable to corporation, cannot deny corporate existence 63 13. Proof of corporation in fact sufficient in all cases 63 CHAPTER IV. PKOCEEDINGS UNDER TUE CHAKTER. SECTION I. ORGANIZATION OF THE COMPANT. 1. Conditions precedent must be performed 54 n. (b). Seiuile, however, that there is a distinction between conditions . 54, 55 2. Stock, in general, must all be subscribed 55 3. Charter-location of road, condition precedent 56 4. Colorable subscriptions binding at law 5G 5. Conditions subsequent, how enforced 56, 57 6. Stock distributed according to charter 57 7. Commissioners must all act 57 8. Defect of organization must be specially pleaded 57 9. Question cannot be raised collaterally 68 n. (e). SeniUe, that there is a distinction between cases 58 10. liecords of company, evidence 68 11. Membership, what constitutes, and how maintained 59 12. Subscription and transfer of shares generally necessary 60 13. Offers to take shares not enforced iu equity, and may be withdrawn ... 60 SECTION II. ACCEPTANCE OF CHARTER, OK OF MODIFICATION THEREOF. 1. New or altered charter must be formally accepted 60,61 2. Subscription for stock sometimes sufficient 01 .*]. Inoperative uidcss made as required Gl 4. Assent to beneficial grant presumed 61 5. Matter of presumption and inference 61 6. Organization or acceptance of charter may be shown by parol 61 7. Corporators assenting are bound 61, 62 8. Charter subject to recall until accepted 62 SECTION III ORDINARY POWERS. — CONTROL OF BIAJORITY. 1. Ordinary franchises of railways, like those of other private corporations, aggregate 62, 60 2, 3. Implied right of majority to control 63 4. Cannot change organic law 64 6. Except in the prescribed mode "* 6. Nor accept amended charter 64, 65 XIV ANALYSIS OP CONTENTS. 7. Nor dissolve corporation 65 8. May obtain enlarged powers 65 9. Equity will not restrain the use of funds for that purpose 65 10. But will, for conversion of canal into railway 66 11. Right to interfere lost by acquiescence 66 12. Acquiescence of one plaintiff, fatal 67 13. Kaiiway a public trust 67 14. Suit maintained by rival interest G7, 68 15. Equity will not restrain majority from winding up except for fraud, &.c. . 68 SECTION IV. MEETINGS OF COMPANY. 1. Meetings, special and general 69 2. Special, must be notified as required 69 3. Special and intporUmt matters, named in notice 69, 70 4. Notice of general meetings need not name business 70 5. Adjourned meetings, still the same 70, 71 6. Company acts by meetings, by directors, by agents 71 7. Courts presume meetings held at proper place 71 8. Every shareholder may vote, but not by proxy 71, 72 9. General owner of shares entitled to vote and act as member 72 10. Trustees act as owners 72 11. Stock issued in the name of B. to secure a debt, from the corporation to A., cannot be voted on 72, 73 12. Shares held as collateral security cannot be changed 73 SECTION V. ELECTION OF DIRECTORS. 1. Should be at general meeting, or on special notice 73 2. Shareholders may restrain their authority 73, 74 3. Company bound by act of directors c/e/ac 2. Contracts to transfer stock not yet acquired, vali2 K). Further assurance of title 2()2 17. Condenmation cannot be impeached 2«''2 18. Fee acquired by public, no reverter on discontinuance of public use . . . 2G2 XXVi ANALYSIS OF CONTENTS. SECTION VIIL CORPORATE FRANCHISES CONDEMNED. 1. Tload franchise may be taken 263, 2G4 2. Compensation must be made 204, 265 3. Hailway franchise may he taken for another company 2G5 4. Rule defined. Grant of land for one public use must yield to that of another more urgent 266 5,6. Constitutional restrictions. Obligation of charter contract . . . 260,267 7. Inviolable contract riglits not taken by imi)lication 267 8. Legislative discretion, former grant not exclusive 267 •J. Highways and railways compared 267 10. Exclusive character of grant does not preclude exercise of the right of emi- nent domain 268 11. Exclusiveness of the grant, a subordinate franchise 2(38 12. Legislature cannot create a francliise, above the reach of eminent domain . 268 13. Legislature may apply streets in city to any public use ........ 269 14. Compensation in such cases to the owner of the fee. Converting canal into railway 269 SECTION IX. COMPENSATION: MODE OF ESTIMATING. 1. Nature of the general inquiry 270 2. Damage and benefits shared by the public not to be considered ...__. 270 3. General rule for estimating compensation 271, 272 4. Prospective as well as present damages assessed 273 5. In some states value "in money" is the measure of compensation . . 274,275 6. 7. Damage and benefits cannot be considered in such cases .... 275, 276 8. Under the English statute consequential injuries to lands not taken com- pensated 277 9. Compensation in view of farm accommodations 277, 278 10. Benefits and damage, if required, must be stated 278,279 n. 13. Course of the trial in estimating land damages 278, 279 11. Items of damage not indispensable to be stated 279 12. In contracts for land, statutory privileges, to be secured, must be stated 279, 280 13. Questions of doubt referred to experts 280 14. Special provisions as to crossing streets only permissive 280 15. Award of farm accommodations within a certain time, time of the essence of the award 280 SECTION X. MODE OF PROCEDirEE. 1. In general, legislature may prescribe the mode 281 2. Proceedings must be upon proper notice 281, 282 3. Formal exceptions waived by appearance 282 4. Unless they are niaile to appear of record 282, 283 6. Proper parties, those in interest 283 6. Title of the claimant may be examined 283, 284 7. Parties who join must show joint interest 284 8. Jury may find facts and refer title to the court 284 9. Land must be described in verdict . 285 n. (g). Jury, in some states, may view the premises 285 10. Distinct finding on each item of claim 285 11. Different interests. Presumption as to finding 285 12,13. Evidence admissible to prove value 286,287 14. Opinion of witnesses. Admissibility 287,288 ANALYSIS OF CONTENTS. XXvii 15. Testimony of experts. Admissibility 288,280 10. Matters incapable of (lescription 28'J, 2'JO 17. Costs. Allowance, in neneral 2'Jl 18. Costs and e.\]ienst's. Alcaninf; of tlie term 2'Jl ly. Commissioner's fees. Party liable 2!>1 20. Appellant tailin{^ must pay costs 291 21. Competency of jurors 292 22. I'ower of court to revise proceedings 292 23. Debt will not lie on conditional rejxirt 292, 293 24. Excessive damages ground for setting aside verdict 293 n. (m). Matters of jurisdiction, pleading, practice, judgment, appeal, &c. 29;i-29G 25. No effort to agree required in order to give jurisdiction 294, 295 26. Interest on value from time of taking 296 SECTION XI. TIME OF MAKING COMPENSATION. 1, 2. Compensation must precede possession 297, 208 8. So by the Code Napoleon 298 4. Thus under most of the state constitutions it must be concurrent with the taking 208 5. Otherwise by the English cases 299, 300 G. Adequate legal remedy sufficient 1 .3(X)-302 7. Payment, wliere required, is requisite to vest the title 302, 303 8. Some states hold that no compensation is requisite 303 SECTION XII. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 1. Appraisal bars claim for consequential damage 304 2. Damage, for instance, by blasting rock 305 3. But not damage by the unnecessary using of other land 306 4. Loss by fires, obstruction of access, and cutting off of springs, barred 306, 307 5. But not loss by flowing land 307, 308 6. Damages, from not building on the plan contemplated, are barred .... 308 7. Special statutory remedies reach such damages 308, ."lOO 8. Pjxposure of land to fires not to be considered 309,310 9. No action lies for damage sustained by the use of a railway .... 310, 311 SECTION XIIL ACTION FOB CONSEQnENTIAL DAMAGES. 1. Statute remedy for lands " injuriously affected " 311,312 2. Without statute an action will not lie 312 3. But otherwise for negligence in construction, or use 313, 314 4. Statute remedy exclusive 314 6. Minerals reserved. Working of mine prevented 314,315 6. Damages for taking land of railway for highway 315 7. Compensation for minerals, when recoverable 316 SECTION XIV. RIGHT TO OCCUPY IIIGIIWAV. 1. Decisions as to tlie right of abutting owners to compensation, conflicting ._ 310 2. First held that owners of the fee were entitled to additional damages 317, 318 XXVIU ANALYSIS OP^ CONTENTS. 3. Principle would seem to support such a rule 319-321 4. Hut many cases are the other way 321, 322 i). lA'gislatures should require additional compensation 322 0. Equity will not enjoin railways from occupying streets of a city .... 322 7. Such eomi)ensation required in some of the states 323-325 b. Recent decisions show an inclination to require compensation . . . 32G-330 n. (a). Right of the owner of the fee to adtlitional compensation would seem to be settled 316-319 SECTION XV. CONFLICTING RIGHTS IN DIFFERENT COMPANIES. 1. Compiny subservient toanotlier can take of the other land enough only for its track 331 2. Where no apparent conflict in route, company whose road is first located acquires superior right 332 SECTION XVI. EIGHT TO BCILD OVER NAVIGABLE WATERS. 1. Legislature may grant right to build over navigable waters .... 332, .333 2. Riparian proprietor along navigable water owns only to the water . 3.33, 334 »i. (a). But ^((rrre if this does not depend on the local law 333 3. His rights in the water subservient to public use 335 4. Legislative grant valid, subject to paramount power of Congress .... 835 5. State interest in flats where tide ebbs and flows 336, .337 6. Riglits of littoral proprietors in Massachusetts 337 7. Grant to railway company of shipping place on navigable river . . . 337, 338 8. Principal grant carries its incidents 338 9. Grant of right to construct a harbor includes right to make necessary erec- tions 338 10,11. Rivers in fact navigable, navigable in contemplation of law . . . 338,339 12. Land being cut ofi" from wharves deemed " injuriously affected " .... 339 13. Infringement of paramount rights of Congress creates a nuisance .... 3.39 15. Obstruction, if illegal, per se a nuisance 340 16. Public reservations applied to use of railway 340 SECTION XVIL OBSTRUCTION OF STREAMS BY COMPANY'S WORKS. 1. Company cannot divert stream, without making compensation 341 2. Company liable for defective construction 342 3. So also for the use of defective works built by others 343 4. Company liable to action where mandamus will not lie 343, 344 5. Company liable for defective works done according to its plans .... 344 6. When a railwa}- " cuts off " wharves from tlie navigation 345 7. Stream diverted must be restored and maintained 345 8. Company cannot cast surface water on adjoining land except from strict necessity 345 9. Public company exceeding its powers liable to an action 345, .346 10. In such cases equity will relieve by injunction 346 SECTION xvin. OBSTRUCTION OF PRIVATE AVAYS. 1. Obstruction of private way question of fact for a jury 346,347 2. Farm road on one's own land, not a private way 347 3. Obstruction of right of way by passage of railway along street 347 ANALYSIS OP CONTENTS. Xxix SECTION XIX. STATUTE KEMEOY EXCLUSIVE. 1, 7. Statute renieily for laml taken, jjencrally exclusive of any otlier . 348, G51 2. But if company iirsue statute it is liable in trespass ; and for neg- lifjcnce liable also in action on the case 349 3,4. Courts of efjuity often interfere by injunction 850,351 5. Hut right at law must be first cstablisbed 3.jl G. Wiiere statute remedy fails, common law remedy e.xists 351 8. Company adopting works responsible for amount awarded for land damages 352 SECTION XX. L.\M)S INJURIOLSLY AFFICTED. 1. Obstruction of way, loss of custom 352-354 2. Equity will not enjoin the e.xercise of a clear legal right 354, 355 3. Company liable for building railway, so as to cut ofl" wharf 355 4. But not for crossing highway near a dwelling on level 355 5. English statute only includes damages by construction only, not by use 355, 356 6. Equity will not enjoin the assertion of a doubtful claim 856 7. Damages unforeseen at the time of the appraisal, recoverable in England 356, 357 8. Injuries to ferry and towing path compensated 357, 358 9. 10. Kemote injuries nut within the statute 358 11. Damages compensated, undir statute of Massachusetts 358, 359 12. Damages not comjiensated, as being too remote 359 18. Negligence in construction remediable at common law 359 14. So of neglect to repair 360 15. Recovery under the statute, &c 360 IG. Possession by company, notice of extent of title 360 17. Companies have right to exclusive possession of roadway 300, 361 SECTION XXI. DIFFEREXT ESTATES PROTECTED. 1. Tenant's good-will and chance of renewal protected 301.302 2. Tenants entitled to compensation for change of location 362, 3(!3 3. Church i)ropert}' in England, how estimated 3ftj 4. Tenant not entitled to sue, as owner of private way .363 5. Heir and not administrator shoidd sue for compensation 363 6. Lessor and lessee b )th entitle4 9. Occujiant of land entitled to compensation 864 10. Tenant, without power of alienation, forfeits his estate, by license to com- pany 305 11. Damages accrued not transferred by deed of land 365 SECTION XXII. ARBITRATION. 1. Attorney, without express power, may refer disputed claim .... 865, 366 2. Award binding, unless objected to in court 306 XXX ANALYSIS OP CONTENTS. SECTION XXIII. STATUTE OF LIMITATIONS. 1. General limitation of actions applies to land claim 366, 367 2. Filing; petition will not save bar ^67 3. Acquiescence of forty years by land-owner, effect of 307 4. Bar effectual where tiie use is clearly adverse 308 CHAPTER XII. REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. SECTION I. COMPAKT BOUND TO PURCHASE THE WHOLE OF A HOUSE, ETC. 1. Company to take tlie accessories with the house 369, 370 2. But tiie owner has an election as to whether the company shall take the whole 370 3. Company bound to make deposit of the appraised value of all it is bound to take 370 4. Company bound to take all of which it takes part, and pay special dam- age besides 370, 371 5. Company having given notice of desire to take part, not bound to take whole if it waives its intention 371 6. Land separated from house by highway not part of premises . . . . . 372 SECTION IL COMPANY COMPELLABLE TO TAKE INTERSECTED LANDS, AND OWNER TO SELL. 1. When less than half an acre remains on either side, company must buy . 372 2. Owner must sell where land of less value tiian railroad crossing . . 372, 873 3. 4. Word " town," how construed 373 SECTION IIL EFFECT OF NOTICE TO TREAT FOR THE PURCHASE OF LAND. 1. Institution of proceedings. Effect under statute of limitations 373 2. Company compelled to summon jury 373, 374 3. Ejectment not maintainable against company 374 4. Powers to purcliase or enter, how saved 374, 375 5. Subsequent purcliasers affected by notice to treat as tlie inception of title . 375 6. But notice may be witlidrawn before aiiytliing is done under it 375 7. Not necessary to declare the use, nor tliat it is for station in use of which another company is to participate 375, 376 SECTION IV. REQUISITES OF TIIE NOTICE TO TREAT. 1. Notice to treat must, in terms or by reference, accurately describe land . . 376 2. Company cannot retract after giving notice to treat 376, 377 3. New notices given for additional lands 377 4. Power to take land not lost by former imwarranted attempt 377 6. Lands may be taken for branch railway 377, 378 6. Effect of notice in case of a public park 378 ANALYSIS OF CONTENTS. XXXi SECTION V. NOTICE MAY IJi; WAIVED. 1. Notice must be set forth in proceedings 378 2. Agreement to waive operates an estoppel 378 8. Certiorari denied where party has sutlered no injury 379 SECTION VI. TITLE OF THE CLAIMANT MUST HE DISTINCTLY STATED. 1. Claimant's reply to notice should be clear and accurate 379 2. Award bad, which does not state claimant's interest 379 3. Lands held by receiver or commission for a lunatic 380 n. 3. Analogous American cases 380, 381 SECTION VII. CLAIM OF LANDOWNER MUST CORRESPOND WITH NOTICE 381 CHAPTER XIII. ENTRY ON LANDS BEFORE COMPF.NS.\TION 13 ASSESSED. SECTION I. LANDS TAKEN OR INJURIOUSLY AFFECTED, WITHOUT PREVIOUS COMPENSATION TO PARTIES. 1. Under Enjjlish statutes no entry without previous compensation, except for preliminary survey 382 2. Remedies against company offending 382-384 3. Taking possession under statute, what acts constitute 384 4. Companv* may enter with land-owner's consent after agreement for arbitr.v tion . f^,i^^ 5. Or on giving a bond conditioned for payment or deposit of value of land 385, ■■>86 6. Company restrained from using land until price paid 380 SECTION n. PROCEEDINGS REQUISITE TO ENAULE COMPANY TO ENTER 1. Provisional valuation imder English statutes 386, 387 2. Irregularities in proceedings i>87 3. Penalty for irregular entry upon larnls 387 4. Kntrv after verdict estimating damages, but before judgment 387 5. Charter mode of assessing damages not superseded by subsequent general act 388 XXXll ANALYSIS OP CONTENTS. SECTION III. MODE OF OBTAINING COMPENSATION WHEKE NO COMPENSATION IS OFFERED. 1. Claimant may have an assessment by arbitrators or l)y jury 388 2. Metliod of procedure in eitlicr case 388 SECTION IV. ONUS OF CARRYING FORWARD PROCEEDINGS. 1. Onus rests on claimant after company bas taken possession 389 2. Tending questions in equity first disposed of. Notice of warrant for jury 389, 800 3. Proceedings cannot be had unless actual possession is taken or injury done 390 SECTION V. INJUNCTION WILL NOT ISSUE BECAUSE LANDS ARE BEING INJURIOUSLY AFFECTED, WITHOUT NOTICE TO TREAT OR PREVIOUS COMPENSATION. 1. Company proceeding under its powers, claimant must wait until works are comjileted 390 2. Even if appearance of land will be greatly altered 390,391 3. How far equity interferes wliere legal claim of party is denied 391 4. Where a special mode of compensation has been agreed on 391 SECTION VI. KIGHT IN THE CLAIMANT NOT DETERMINED BY JURY OR ARBITRATOR. 1-3. Arbitrators and sheriff's jury determine onlj' the amount of damages 391-393 4. In most American states assessment is final 393 5. riaintiff will recover damages assessed if he suffered any legal injury . . 393 SECTION VII. EXTENT OF COMPENS.\.TION TO LAND-OWNERS, AND OTHER INCIDENTS BY THE ENGLISH STATUTES. 1. Liberal compensation allowed 393, 394 2. Decisions under Englisli statutes 394 3. Limit of period for estimating damages 394 4. Wlietiier claim for damages ])asses to tlie devisee or executor 395 5. Vendor generally entitled to damages accruing during his time .... 395 SECTION VIII. RIGHT TO TEMPORARY USE OF LAND TO ENABLE THE COMPANY TO MAKE EREC- TIONS ON OTHER LANDS. 1. Right to cross another railwa\' by a bridge gives right to temporary use of the company's land, but not to build abutments 395,390 2. Right to bridge a canal gives right to build a temporary bridge .... 390 3. And if erected tonayzde it may be used for other purposes 396 ANALYSIS OF CONTENTS. XXXIU SKCTION IX. RESEBVATIONS TO LANDOWNERS TO UL'ILU I'UIVATI; ItAILWAY ACROSS PUB- LIC RAILWAY 3'JG, 397 SECTION X. DISPOSITION OF SUI'EUFLUOUS LANDS. 1. Under Englisli st.itute superfluous lands vest in adjoining owner unless dis- posed of in ten years 307 2. Former owner not excluded ; effect of cottage in field 397 CIJ AFTER XIV. MODF. OF ASSF.SSING COMrEXSATIOX UN'DEU THE F-XGLISH STATUTES. SECTION I. ASSESSMENT BY JUSTICES OF THE PEACE. 1. Assessment wliere tlie compensation claimed does not e.xceed £50 . . . 398 2. Procedure in enforcement of award 308 3. Value of land and injury accruing from severance to be considered . . . 3y8 SECTION II. ASSESSMENT BY SURVEYORS 398, 399 SECTION III. ASSESSMENT BY ARBITRATORS. 1. Assessment by arbitrators in cases exceeding jurisdiction of justices of the peace 399 2. Proceedings in selection of arbitrators -lOO 3. Notice of appointment. Wliat siitticient 4(X) 4. Arbitrator's jiower limited to award of pecuniary compensation .... 400 5. Where land-owntr gives no notice of claim, company may treat it as case of disputed comjiensation 401 6. Similar rule under .^la^sacilu.-ctts statute regarding alteration of highways 401 7. Under that statute landowners may recover without waiting for selectmen to act 401 8. Company estopped in such case from denying tliat road was constructed by its servants 401 9. Finality of award silent as to severance damages 401, 402 10. Submission not revoked by death of land owner. Damages embraced . . 402 11. Construction of general award 402 VOL. I. — c XXXIV ANALYSIS OF CONTENTS. PART IV. THE LAW OF CONTRACTS AS APPLIED TO THE CON- STRUCTION OF RAILWAYS AND TELEGRAPHS; TOLLS, ETC. CHAPTER XV. CONSTRUCTIOX OF RAILWAYS. SECTION I. LINE OF RAILWAY. — RIGHT OF DEVIATION. 1, 2. Manner of defining tlie route in Eni;Iisli cliarters 405, 40G .3. Plans bimling only for the purpose referred to in tlie act 40G 4. Contractor bound by contract notwithstanding deviation, unless lie object . 407 6. Equity will not enforce contract for crossing on level, not authorized by act. Against public security 407 6. Right to construct accessory works 407, 408 7, 8. Companj' ma}' take lands designated, in its discretion 408, 409 9. Equity cannot enforce contract not incorporated in the act 409 10. Right of deviation lost by location 409, 410 11. Railway between two towns, extent of grant 410 12. Grant of right to take land for railway includes right to take for accessories 410 13. Route designated need not be followed precisely 411 14. Terminus, being the boundary of a town, is not extended as the boundary extends 411 15. Land-owner accepting cotnpensation waives informality 411, 412 16. Powers limited in time expire with limitation 412 17. Construction of charter .-IS to extent of route 412 18. Map may be made to yield to other grounds of construction 412 19. Power to change location must be exercised before construction . . 412, 413 20. Binding force of plans made part of ciiarter 413 21. Grant terminating at town liberally construed 413 SECTION n. DISTANCE, HOW MEASURED. 1. Measurement of distance is affected by subject-matter 413,414 2. Contracts to build railway, by rate per mile 414 3. General ruU' to measure by straight line 414 4. Rule the same in measuring turnpike roads 414, 415 5. Rate fixed by mile means full mile; no charge for fractions 415 SECTION III. MODE OF CONSTRUCTION ; COMPANY TO DO LEAST POSSIBLE DAMAGE. 1. Rule under English statute does not extend to form of road, but to mode of construction 415 2. Special provisions of act not controlled by this general one 415 3. Works interfered with, to be restored, for all uses 415, 41G ANALYSIS OF CONTENTS. XXXV SECTION IV. UODB OF CROSSING IIIQUWAYS. 1. English statutes forbid crossings at grade 410 2. Or otiierwise provide that gates be erected and tended 417 '6. And if near a station, that trains shall not run faster than four miles an lioiir 417 4. Coni[)uny cannot alter course of higliway 417 6. Kiglit to use liighway gives no right to appropriate military road . . 417, 41H U. Mandamus docs not lie to compel particular form of crossing wliere com- pany lias an election 418 7. Company camiot alter highway to avoid building bridge 418 8. Kxtent of repair of bridge over railway 418, 41'J 9. I'ermission to connect hranches with main line not revocable . . . 41'J, 4li0 10. Grant of right to build railways across main line implies right to use them as common carriers 420 11. Company liable for dangerous state of highway caused by works .... 420 12. Kight to lay line across railway carries right to lay as many tracks as are convenient for the business 4'20 13. Damages for laying higliway across railway 420 14. Laying higliway across railway at grade. Company not estoi)pcd by con- tract witii former owner of land 420, 421 15. Towns not at liberty to interfere with railway structures 421 SECTION V. RIGHTS OF TELEGRAPH COMPANIES. 1. Right to " pass directly across a railway," does not justify boring under it . 421 2. Exposition of the terms " under " and " across " 422 3. Erecting posts in highway a nuisance even if sufficient space remain . . . 422 SECTION VL DUTY OF COMPANY IN REGARD TO SUBSTITUTED WORKS. 1. Company bound to repair bridge substituted for ford, or to carry liighway over railway 423 2. Same rule has been applied to drains, substituted for others 42."1 3. Extent of this duty as applied to bridge and approaches 423,424 SECTION YIL CONSTRUCTION OF CHARTER IN RI.GAUI) TO NATfUE OF WORKS, AND MODE OF CONSTRUCTION 424 SECTION VIII. TERMS OF CONTRACT. — MONET PENALTIES. — EXCUSE FOR NON-PERFORMANCE. 1. Contracts for construction may assume forms unusual in other contracts . 425 2. Qu;intity and quality of work generally referred to engineer 42»i 3. Money penalties, li(|uidated damages. Full performance of waiver . 426,427 4. Excuses for non-performance. Injunction. New contract 427 5. Penalty not incurred, unless upon strictest construction 427 6,7. Contractor not entitled to anything for part-performance .... 427,428 8. Contract for additional compensation must be strictly performed .... 428 XXXVl ANALYSIS OF CONTENTS. SECTION IX. FORM OF EXECUTIOX. — EXTRA WORK. — DEVIATIONS. 1. Contract need be in no particular form 428, 429 2. But tlie express requirenients of the clmrter must be complied with . . . 429 3. Company not liable for extra work unless it was done on the terms speci- lied in contract 430, 431 4. Sed qucere, if the company has had the benefit of the work 431 SECTION X. REPUDIATION OF CONTRACT. OTHER PARTY MAT SUE IMMEDIATELY. INEVITABLE ACCIDENT. 1. Repudiation by one party excuses performance by the other . . . 431, 432 2. But he may stipulate for performance on different terms 432 3. President cannot bind the company for additional compensation .... 432 4. Effect of inevitable accident 432, 433 SECTION XI. DECISIONS OF REFEREES AND ARBITRATORS IN REGARD TO CONSTRUCTION CONTRACTS. 1. Award valid if substantially, tliough not technically correct 433 2. Court will not set aside award, where it does substantial justice .... 434 SECTION XII. DECISIONS OF company's ENGINEERS. 1. Estimates for advances, mere approximations, under English practice 434, 435 2. But where the engineer's estimates are final, can only be set aside for partiality or mistake 435, 436 3. Contractor bound by practical construction of the contract 436 4. Estimates do not conclude matters not referred 436, 437 5. Contractor bound by consent to accept pay in depreciated orders .... 437 6. Right of appeal lost by acquiescence 437 7. Engineer cannot delegate his authority under reference 437 8. Arbitrator must notify parties, and act iwiay!"(/e 438 SECTION XIII. RELIEF IN EQUITY FROM DECISIONS OF COMPANY'S ENGINEERS. 1. Contract referring work to engineer, engineer to be satisfied . . . . 438—441 2. Bill for relief praying that plaintiff be pcrmitteil to go on, &c 441 3. Bill sustained. Amendment alleging mistake in estimates 441 4. Relief as to sufficiency of payments had only in equity 441 5. Proof of fraud must be very clear 441 6. Engineer a shareholder, not valid objection 441 7. Decision 'of engineer conclusive as to quality of work, but not as to quantity 441 8. New contract condonation of old claims 441,442 9. Account ordered after cf)inpany had completed work 442 10. Money penalties cannot be relieved against, unless for fraud 442 ANALYSIS OF CONTENTS. XXXvii 11. Etifrineor's estimates not conclusive, unless so agreed 4-12 12. Contractor eiUitlud to full compensation for work accepted by supplemental contract 442 13. Direction of umpire binding on contracting parties, and dispenses with certificate of full performance 442, 443 SECTION XIV. FRAUDS IN' CONTRACTS FOR CONSTRUCTION. 1. Relievable in equity on {general principles 44,3 2. Statement of leadiii;^ cases upon this subject 4 |.S 3. No definite contract closed, uo relief granted 443,444 SECTION XV. ENGINKtCIl's ESTIMATE WANTING THROUGH FAULT OF COMPANY. 1. Kelief in equity where estimate of engineer is wanting through fault of company 444 2. Grounils , 490 9. Company not liable in such case, unless they might have avoided the injury 4'.«O-402 n. (g). Hate of speed considered as negligence /irr sr 4'.K), 491 10. Comnanv required to keep gates closed, liable to anv party injured by omisV.on . 492.40.3 11. Independently of statute, company not bomul to fence 494,495 12,17. Not liable for consequences of the proper use of its engines . . . 495,498 13. Questions of negligence ordinarily to be determined by jury 496 H. (i). Questions of contributory ncgligeni'e, what constitutes 490 14. But only where the testimony leaves the question doubtful 497 15. Actions may be maintained sometimes, for remote consequences of negli- gence ." 497 xl ANALYSIS OF CONTENTS. 16-18. Especially where a statutory duty is neglected by company . . . 497, 498 19. Question of iK'fjliyonce is one for the jury 4U8 21). (tiic wlio sulTors an animal to fro at larire can recover only for gross neglect 499 '21. Testimony of experts receivable as to managi^mont of engines . . . . . 499 22 One who "suffers cattle to «,'() at large must take the risk 499, 500 23. Com[)any owes a primary duty to j>assengcrs, &c 500 24. In .Maryland company liable unless for unavoidable accident 501 2-j. In Indiana (;()ininon-law rule prevails 5Ul 2G. In Missouri rule modified by statute 501, 502 27. In California cattle may lawfully be sufTered to go at large 502 28, 29. Various decisions in Illinois 502-504 80. VVeiglit of evidence and of presumption 504 ;>1. Company not liable except for negligence 504 ;>2. Company must use all statutory an(l other precautions 504, 505 38. Not coinjietcnt to prove negligence of the same kind on other occasions . 505 34. Rule of damages in general, value of animal, &c 605 CHAPTER XIX. FENCF.S. SECTION I. OBLIG.\.TION TO M.\INT.\IN; RESTS ON WHOM. 1. Englisli statute makes a separate provision for fencing 507 2. Enforced against the companies by mandamus 507 3. Where no such provision exists, the expense of fencing is part of the land damages 507-510 rt. (a). Kegulated by statutes in some of the states. Various provisions 507-509 4. Where the company resists the assessment, the land-owner is in the mean- time not obliged to fence 510 5. In some cases held that the duty of fencing rests equally on the company and the land-owner 511,512 6. Assessment of land-damages, on condition that company build fences, raises an implied duty on part of company 513,514 7. In some states, owners of cattle not required to confine them on their own land 514 8. Lessee of railway bound to keep up fences and farm accommodations . . 514 9. Company bound to fence laml acquired by grant, as well as by proceedings in inrituin 515 10. Farm crossings required wherever necessary 515 11. Land-owner declining farm acconnnodations, has no redress ; courts of equity will not decree specific performance 515, 516 12. Fences and farm acconnnodations not required for safety of servants and employes 516 13. TJequisite proof where company liable for all cattle killed 517 14. Party bound to fence assumes primary responsibility 517 15. Company not liable for injury at road-crossings 518 16. Company not liable for injury to cattle by defect of fence about yard . . 518 17. Animals escaping through defecit of fence 618 18. Injury must appear to have occurred through default of company . 518, 519 19. Cattle-guards required in villages, but not so as to render streets unsafe . . 519 20. Company responsible for injuries through defect of fences and cattle-guards 519, 520 21. Common-law rule as to liability maintained in New Hampshire . . 520, 521 22. Company responsible as long as it controls road 521 23. Maintaining fences, matter of police. Duty under the English statute and at common law. Fencing against chihlren 521, 522 24. Rule as to land-owner agreeing to maintain fence, &c 522 25. Company not responsible for defect of fence where fence is not needed 522, 523 ANALYSIS OF CONTENTS. xli 26. Company not responsible in Indiana imlcs 524 JJl. Illustrations of the titiicral rule 524,525 32. Actions umUr statute must Ijc brought within it 525 38. Owner in Pennsylvania must keep his cattle at home 525 34. Statutory fence required 525 SECTION II. C.\TTLE AGAINST WHICH Tllli COMfANY IS BOLSD TO FENCE. 1. Owner bound to restrain cattle at common law 526 2. If bound to fence along adjoining lanii, only against cattle rightfully on such land 527 3. Agreement that land-owner shall fence, will excuse injury to cattle . . . 528 4. 5. Owner of c.ittle injured by negligence of company may recover, unless guilty (irexi)ress neglect 528-530 C, 7. Duty of conii)any to fence against cattle straying on adjoining land 530, 531 8. Company not bound to fence, liable only for injuries caused by wanton or reckkss conduct 531 ' 9. Grantee of land bound by grantor's covenants as to fencing .... 631, 532 10. Cattle accidentally at large. Dut}' of comi)any 532 11. Distinction between suffering cattle tu go at large and accidental escape 5^2, 533 PART VI. THE LAW OF AGENCY AS AlTLIEl) TO RAILWAYS. CIIAriER XX. LIAHILITIKS IX UEGAUD TO COXTK.VCTOUS, AGENTS, AND SUB-AGENTS. SECTION I. LIAniMTY FOn ACTS AND OMISSIONS OF CONTRACTORS ANr> TIIF.IK AGENTS. 1. Company ordinarily not liable for an act of the contractor or bis servant 5.".7, 5:;8 2. Otherwise in England if the contractor is employed to do the very act . . 538 3. American courts seem disjiosed to adojit the same rule 539 4. Distinction lietwt'en cases of acts done on movable and cases of acts done on immovable property not maintainable 539, 540 6. True grounds of distinction. What thcv are 510 6. Mode of emplovment, whether by day or job, no proper ground of distinc- tion . . ' ■ 540 7. I'roper basis of company's liability. Question of control -''lO 8. Thus, in general, so long as one retains control, be is responsible .... oil n. (b). Contractor in control, however, not liable fur result of defects in machinery furnished by I'ompany 511 9. Master workman responsible only for the faithfulness and care of his work- men, in the business of their employment 511 xlii ANALYSIS OF CONTENTS. 10. Company rcsponsihle for injuries consequent upon defects of construction, in liio course of the worlt by a contractor 542 11. Ordinarily employer not responsible lor tlie negligent mode in wliicli work is done, tlie contractor being employed to do it in a lawful and reason- able manner 542 SECTION II. LIABILITY OF THE COMPANY FOK ACTS OF THEIR AGENTS AND SERVANTS. 1. Courts manifest disposition to give such agents a liberal discretion . . . 542 2. Company liable for torts committed by agents in discharge of their duties 543 3. May be liable for wilful act of servant within tlie range of his employment 544 4. Assent of the company, whellier it is necessary to show it 544 5. Most of the cases adiiere to the principle of )c.s/30Hf/e«< su/jen'or 545 6. 7, 9. Should be remembered that the company is virtually present . 547-549 8. Where the company owes a special duty, the act of the servant is always that of the company 549 10. Ratification of the act of an agent, what constitutes 550 11. Liability of corporations for the publication of a libel 551 12. Powers of a corporation such only as are conferred by charter 551 13. False certificate that capital has been paid in money 552 14. Gas company not bound to supply gas to all wiio require it 552 15. Company may be responsible for false imprisonment 552 16. Company responsible, for injury done by vicious animals kept or suffered to remain about its stations 553 17. General manager. of company may bind it for medical aid for servant in- jured in its emploj'ment 553 18. Superintendent, or general manager can give no valid authority to subordi- nates to do an act operating as a fraud upon the company 554 SECTION IIL INJURIES TO SERVANTS BY NEGLECT OF FELLOW-SERVANTS, AND USE OF MACHINERY. 1. In general, company not liable to servant for negligence of fellow-servant 554, 555 2. Otherwise if at fault in employing unsuitable servants or machinery . 556-562 3. Not liable for deficiency of help or for defect in fence, whereby cattle come on road and throw engine from track 562 4. Qucpje, whether the rule applies to servants of different grades . . . 562, 563 n. (g). Fellow-servants within the meaning of the rule, who are . . 56;j-565 5. Principal rule not adopted in some states, nor in Scotland 564, 565 6. Ship-owner does not impliedly contract with seamen that ship is seaworthy 566, 567 7. Rule does not apply where servant lias no connection with the particular work 568 8-10. Cases, English and American, illustrating the accepted doctrine . 568-573 11. Company may show in excuse, that the damage accrued through disregard by fellow-servant of settled rules 573 12. Servants of one company, not fellow-servants with those of another com- pany using the same station where the injury occurred .... 573,574 13. Injury caused by intoxication of fellow-servant. Proof of knowledge by company that servant is an habitual drunkard tends to show culpable neglect 574, 575 14. Employer liable where his own negligence concurs with that of fellow-ser- vant 575 ANALYSIS OF CONTENTS. xllii SECTION Illfl. PROOF OF NEGLIGENCE, ETC. 1. Injury to passenger raises a presumption of want of due care on the part of company 575 2. Tliat presumption may be rebutted G7(j 8. Person riding on a pass, or in tiie bagjrjipo car, may liave an action for inju- ries caused by want of due care, if a passenger and free from fault . . 570 SECTION IV. INJURIES BY DEFECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 1. Company liable for injuries caused by leaving streets in insecure condition 577, •578 2. Municipalities liable primarily to travellers suffering injury 57!) 3. Comi)any liable over to municipality 579, 580 4. 'I'owns liable to indictment. Compiiny liable to mandamus or action . . 580 o. Construction of a grant to use streets of a city 580,581 6. Such grant gives the public no right to use the tracks 581 7- Comjtany by charter required so to construct road as not to obstruct liigh- way, bound to keep highway in repair 581 8. Municipalities not responsible for injuries resulting from jjroper exercise of authority to occupy street 581, 582 9. Canal company not excused from maintaining farm accommodations by railway interference 582 10. Railway track crossing j)rivate way 582 11. Person opening company's gates contrary to law cannot recover . . .582,583 SECTION V. LIABILITY FOR INJURIES IN THE NATURE OF TORTS. 1. Railway crossings on a level always dangerous. Need of legislation . 583-585 «. (a). Conduct required of company ami traveller at such crossings . 684, 585 2. Company not excused from the exercise of care by use of the signals re- quired by statute 585, 586 3. Traveller cannot recover if his own act contributed to bis injury . . 580-5'JO 4. Unless company might have avoided the injury 5"J1, 592 5. Omission of proper signals will not render company liable, unless it pro- duces the injury 592 G. Company not liable for injury to trespassing cattle, unless guilty of wilful wrong 692 7. General rule requires of company the conduct of skilful, prudent, and dis- creet jiersons 6'J3-505 8. Action accrues from tlic doing of the injury 595 9. Where injury is wanton, jury may give cxcmpl.iry damages .... 595. 690) 10. Traveller wilt) follows direction of gate-keeper excused 690 11. Company res]>onsible for injm-y when the crossing is opened b}' flagman . 690 12. Hesiionsihility of company for d;images mainly matter of fact, each case depending on its peculiar circumstaiu'os 697 •13. Company's right of way, sjieeil, negligence, &c 597 14. Company may establish and use proper and necessary signals, e. g., hy whistles, in the conduct of its business 597,598 15. Duty of company in driving trains in a city. Presumption of neeligcnce . 598 16. Company responsible for damage caused by needless letting off of steam . 698 Xliv ANALYSIS OF CONTENTS. SECTION VI. MISCONDUCT OF RAILWAY OPEIIATI VliS SHOWN BY EXPEUTS. 1. Train nianat;emeiit so far matter of art and science, that testimony of ex- l)crts may be received 0^9, GOO 2. Burden of proof in cases of tort. Company, wlien bound to produce expert testimony in exculpation 600 3. Plaintiff not hound in opening to produce testimony from experts .... 000 4. Omission to produce such testimony, however, will often require explauation (iOO n. 0. General rules in regard to the testimony of experts OUO, GOl CHAPTER XXL KAILWAY DIRECTOKS. SECTION I. EXTENT OF AUTHORITY OF DIRECTORS. 1. In general, directors may do any act in the range of the company's business which the company might do 602, 603 2. Applications to legislature for enlarged corporate powers, or right to sell works, require consent of shareliolders 603,604 3. Constitutional requirements as to mode of exercising corporate powers must be strictly followed 604 4. Directors cannot essentially alter nature of business, nor can majority of shareholders 604-606 6. Equity has some control, but inherent difficulty in defining the proper limits of railway enterprise 606 6. Acts tiltid vires can be confirmed only by actual assent of general body of shareholders 607, 608 7. Directors of any trading corporation may give bills of sale in security for debts 609 8. Directors cannot bind company except in conformity with charter . . . 609 9. Company cannot retain money obtained by fraud of directors 609 10. Fraud not made out without proof that party was misled without his own fault 009,610 11. Company, by adoi)ting act of directors, makes itself responsible .... 010 12. Prospectus and report should contain the whole truth 610 13. Directors eamiot issue shares to procure votes and control corporation . . 610 14. Praud in the reports of the company, what constitutes 610,611 15. Directors responsible for fraudulent acts and representations 611 16. Directors may ratify any act which they have power to do 611 17. Directors represent the company in dealing with employe's 611 18. Equity will not require a useless or injurious act even to remedy a proceed- ing ultra vires 611, 612 19. Acceptance by corporation of the avails of a contract will amount to ratifi- cation 612 SECTION II. PERSONAL LIABILITY OF DIRECTORS. 1. Lawful acts of directors. Directors not personally liable .... 612,613 2. Otherwise if they undertake to be personall}- liable 613, 614 3. So if they assume to go beyond their powers 614 4. Extent of powers often affected by usage and course of business .... 615 5. 6. Contract beyond the power of the company, or not in usual form, direc- tors personally liable 616 ANALYSIS or CONTENTS. xlv SECTION III. COMPENSATION FOR SERVICE OF DIRECTORS. 1. In England, directors not entitled to compensation for services . . . C16, C17 2. Company may grant an annuity to a disabled officer, tliougli not specially empowered 017 3. In this country directors entitled to compensation, in conformity to the order of t lie board C17 4. Some states follow the English rule 018 6. Official bond strictly limited to term for which officer is elected .... 018 SECTION IV. RECORDS OF THE PROCEEDINGS OF DIRECTORS. 1. English statutes require minutes of proceedings of directors, and make them evidence 019 2. Presumption that minutes contain all that passed . . . ^ 619 3. Presumption from non-production of minutes that company ratified acts of directors 019 SECTION V. AUTHORITY OF DIRECTORS TO BORROW MONET, &C. 1. Authority of directors, express or implied, to bind company 620 2. Power to bind company through agent of their appointment . . . • 620, 6'Jl 3. Contracts in excess of authority under seal of company prima facie binding 021 4. Strangers must take notiee of general want of authority in directors, but not of mere informalities 622 f). Corjxjration cannot subscribe for stock of other companies 022 6. Corporation may borrow money, if re(iuisite 023 w. (a). Or loan money to aid in auxiliary work 023 7. Power of directors to accept subscription payable in land 623 SECTION VI. DIRECTORS BOUND TO SERVE THE INTEREST OF COMPANY. 1. General duty of such officers defined. Trust relation 624 2, 3. Contracts" for secret service and infiuence with directors. Legality 625-627 4, 5. Directors cannot buy from themselves for the company. But company may ratify ''27, 628 71. (b). Nor can they acquire for themselves properly whieli they should acquire for the eompaiiy G27 6. They may purchase shares of one another to promote harmony in the board 628 7. May loan money to company, though forbidden to participate in profits of C()mt)any's contracts fi28 8. Director f/''/ar/o treated as director so far as nffi?cts claims 028 n. Hotel compiiny may lease premises to others 028, 029 10. Director cannot recover for work done for company _ 029 11. Contract of projector with directors not binding on company, if not condi- tional on formation of the comjiany C20 12. Director forbidden to act where interested, may still vote as shareholder . 029 13. Court will not act on petition against directors brought by member who is a mere puppet for others G29, 030 xlvi ANALYSIS OF CONTENTS. 14. Directors cannot charge to company costs of libel suit brought for defama- tion of themselves fi30 15. Directors resjjonsible for wrongful acts of each otiier, if known at the time (JoO 10. llight of courts to appoint receivers and take the management of corpora- tions 630 17. Directors personally responsible for money expended in raising the price of siiares 031 SECTION VII. RIGHT TO DISMISS EMPLOYES DAM.\GES FOR WRONGFUL DISMISSAL. 1, 2. Whether employe', if wronfifully dismissed, may recover salary for full term. English courts hold not 031, 0."2 3. Some American cases take the same view 632 4. Where the contract provides for a term of wages, after dismissal, it is to be regarded as liquidated damages 633 5. Statute remedy in favor of laborers of contractors, extends to laborers of sub-contractors 633 CHAPTER XXII. ARRANGEMEXTS BETWEEX DIFFERENT COMPANIES. SECTION I. LEASES, AN'D SIMILAR CONTRACTS, REQUIRE THE ASSENT OF LEGISLATURE. 1. In England, by statute, company may contract with another for riglit to pass over its road. Contract binding 034, 035 2. Cannot transfer as by lease duty of one company to another, without legis- lative grant 035, 036 3. Leasing company still liable to public. Lial)ility of lessee .... G36-63Q 4. Equity will enjoin company from leasing, without legislative consent . . 039 5. Such contracts, made under legislative permission, are to be carried into effect 639 6. Majority of company may obtain enlarged powers, with new funds . 039, 040 7. So the majority may defend against proceedings in legislature . . . 040, 041 8. Legislative sanction will not render valid contracts tdtra vires 041 9. Company cannot assume duties of ferry, without legislative grant . . 041, 042 10. Grant to company of implied right to establish a ferry to connect its ter- minus with depot on opposite side of river, does not extend responsibil- ity of company as a carrier by rail to the ferry 042 11. Such ferry by gratuitous carriage of passengers may infringe franchise of another ferry 642 12. Grant to company of a ferrj' in express terms will not authorize carriage of anything except its p.isscngcrs and freight 042 13. Legislative confirmation of a railway and its location will not affect past defaults 042 SECTION IL NECESSITY FOR SEAL ON CORPORATE CONTRACTS. 1. Necessity for seal. English courts hold seal necessary ; American, hold not 043 3. What constitutes a seal, according to modern use 048 ANALYSIS OF CONTENTS. xlvii SECTION III. DUTY OF THE RESPECTIVE COMPANIES TO PASSENGERS AND OTHERS. 1. C()mj)any owning road bound to keep road safe. Acts of other companies no e.xcuse 048,019 2. Distinction between cases of negligence in operating and cases of negligence in constructing the road 049 3. I'asseniicr carriers in t;ciicral bound to make landinu; places safe . . 050, 051 4. I'assen^'crs on frcij^'ht trains by favor, can require only sucii security as is usual on sucii trains 051 6. Owners of all property bound to keep it in state not to expose others to in- jury 051 0. Rule extends to railway companies, as to persons rightfully on their roads 052 7. Corporation keeping open public works is bound to keep them safe for use 052, cry-i 8. Corporation presumptively responsible to the same extent as natural per- son in tile same situation 053 9. Railway company hauling cars of a connecting road over its line responsi- ble as a cuininon carrier 053, 054 SECTION IV. POWERS AND DUTIES OF LESSEES OF RAILWAYS. 1. Construction of a lease in an important case 054-058 2. Lessees of railways liable for their own acts, and for many acts of lessors . 058 SECTION V. CONTRACTS BETWEEN COMPANIES REGULATING TRAFFIC. 1. Such contracts generally held valid and binding 058, G59 2. Arrangements to avoiil competition valid. Pooling (>')9 3. Construction, lurce, and operation of contracts between companies . . . 000 SECTION VI. WHAT CONSTITUTES A PERPETUAL CONTRACT BETWEEN COMPANIES. 1. Railway connections commonly temporary OGO, 001 2. Such arrangements matter mainly of public convenience and subject to legis- lative control OCl SECTION VII. CONTRACTS BY RAILWAYS ULTRA VIRES AND ILLEGAL. 1. Contracts to make erections not authorized In- their charter .... C61, 002 M. (a). Contracts for sale or purchase of road 002 2. Contracts to indemnify other companies against expense 0'"'2 3. Contracts to divide jirotits 003 4. Contracts for land for alteration of n branch, pending application to legisla- ture for power to niter 603, 064 5. Acceptance of bills of exchange. No implied power 664 n. (c). Guaranty of bonds of other company. Issue of preferred stock . . 004 6. Contracts ultra vires cannot be specifically enforced against the directors . 004 xlviii ANALYSIS OF CONTENTS. 7. Money unlawfully borrowed, company must refund CG4, 6G5 8. Confirmation of acts ullra vires. Acquiescence does not confirm. Other- wise, somctiiiies, acceptance of consideration (>()-3, GGG 9, 10. Coin])any not restrained from making unlawful payments on tlie ground of policy 606 11. Qmvre, if tliere is legal distinction between matters of internal manage- ment beyond powers, and other matters beyond powers .... GGG, 667 n. 15. Permanent arrangements between companies in different states ultra vires 667, 668 SECTION VIII. COMPANIES EXONERATED FROM CONTRACTS BY ACT OP THE LEGISLATURE . . 668 SECTION IX. WIDTH OF GAUGE. .JCXCTION WITH OTHER ROADS. 1. Charter requiring broad gauge does not prohibit mixed gauge 669 2. Permission to unite with another road signifies a road de facto 669 3. Equity will sometimes enjoin company from changing gauge 669 4. Contract to make gauge of the companies the same, although contrary to law of state, at its date, may be legalized by statute 670 5. Import and construction of the term " railway connection " 670 PART VII. THE LAW OF MANDAMUS AND OTHER PREROGATIVE REMEDIES AS APPLIED TO RAILWAYS. CHAPTER XXIII. MANDAMUS. SECTION I. GENERAL RULES OF LAW GOVERNING THIS REMEDY. 1. Supplementary remedy. Available where other remedy is wanting . 673, 674 2. Mode of procedure. Matter of discretion. Alternative writ . . . 674, 675 3. Proceedings in American courts, in general 675 4. Amendment of apjjlication not allowed in England 676, 677 5. Sim|)lified proceedings under common law. Procedure Act 677 6. Trial of the truth of the return to the alternative mandamus 678 7. Costs rest in the discretion of the court 678 8. Mode of service. DcliviTy of the original, &c 679 9. Mandamus had under late Knglish statutes, by indorsement of claim on writ in ordinary action 679, 680 SECTION II. PARTICULAR CASES WHERE MANDAMUS LIES TO ENFORCE DUTY OF CORPO- RATIONS 6a0, 681 ANALYSIS OF CONTENTS. xlix SECTION III. MANDAMUS APPnOPRIATE TO KEINSTATE OFFICERS AND MEMKERS OF COUPORA- TIONS IN POSITIONS TAKEN FROM TIIEM IIY THE CORPORATION. 1. Formerly granted only to restore to public office 082-085 2. Now granted in all cases where the office is of value and sufficiently perma- nent (180-088 3. Not available, where election annual and issue one of fact, and not triable within tiie term 088 4. Claimant must have permanent and vested interest 688 SECTION IV. MANDAMUS TO COMPEL COMPANY TO COMPLETE ROAD. 1. English courts formerly required company having a general grant to com- plete its road 080, 690 2. Otherwise now, unless under peculiar circumstances 090 3. Mandamus to compel company to operate its road 091 SECTION V. CASES IN WHICH THIS IS THE PROPER REMEDY. 1. Compelling company to complete its road where the act is imperative . . 092 2. Mandamus more proper remedy in such case than injunction 093 3. Commissioners of public works not subject to the writ 093,094 4. I'ublic duties of corporations enforced by mandamus 094 5. Facts tried by jury. Instances of this remedy 695 G. Caimot be substituted for certiorari when that is taken away 096 7. Issues to compel the allowance of costs 690 8. Other instances of its application 096 9. Lies where the duty is clear and no other remedy 697 10. Not awarded to control legal discretion 097, 098 11. Nor to tr}' the legality of an election 099 12. Lies to compel transfer of stock 099 13. Lies also to compel a railway company to have damages estimated under statute 099 SECTION VL PROPER EXCUSES, OR RETURNS TO THE WRIT. 1. Return that powers of company had expired at date of writ, good . . . 700 2. So of return of want of funds to perform duty 701 3. Otherwise of return that road is not necessary, or would not be remunera- tive 701 4. Part of return may be quashed and answer required to remainder . . 701, 70-J 5. Counsel for petitioner entitled to open and close 7('2 0. Koturn of want of power to do tJic act required by tlie charter is bad . . 7(i2 7. Peremptory writ cannot issue till whole case is tried 702 8. Court will not quash return summarily . 702 9. Non-compliance with peremptory writ admits of no excuse .... 702, 703 SECTION VII. ALTERNATIVE WRIT REQUIRING TOO MUCH, RAD, FOR THAT WHICH IT MIGHT HAVE MAINTAINED VOL. I. — d 702 1 ANALYSIS OF CONTENTS. SECTION VIII. ENFORCING PAYMENT OF MONEY AWARDED AGAINST RAILWAY. 1. Enforcing payment of money by corporations by mandamus 704 2. Wiicre debt will lie, mandamus will not 704, 705 3. Mandamus proper to compel payment of compensation under statute . . 705 4. Mandamus not allowed in matters of equity jurisdiction 705,706 5. Contracts of company not under seal enforced by mandamus 700 6. Where a statute imposes a specific duty, an action will lie 706 SECTION IX. ■WKIT SOMETIMES DENIED IN MATTERS OF PRIVATE CONCERN. 1. Denied to compel company to divide profits 707 2. Allowed to compel production and inspection of corporation books . . . 707 3. Allowed to compel the performance of statute duty, but not to undo what is done 708 4. Allowed to compel the production of the register of shares, or the registry of the name of the owner of shares, and in other cases .... 708, 709 5. Common remedy for restoring persons to corporate oflices of which they are unjustly deprived 709, 710 SECTION X. REMEDY LOST BY ACQUIESCENCE. — PROCEEDING MUST BE BONA FIDE. 1. Remedy must be sought at earliest convenient time 711, 712 2. Courts will not hear such applications made merely to obtain opinion of court 712 3. Application any time within statute of limitations 712 SECTION XL BIANDAMUS ALLOWED WHERE INDICTMENT LIES. 1. Mandamus sometimes lies where act in question is indictable . . . 712, 713 2. Lies to compel company not to take up tiieir rails 713 3. Denied where there is other adequate remedy 713 SECTION XIL JUDGMENT UPON PETITION FOR MANDAMUS RE VI SABLE IN ERBOB. .... 714 CHAPTER XXIV. CERTIORARI. SECTION L TO REVISE PROCEEDINGS AGAINST RAILWAYS. 1. Lies to bring up unfinished proceedings, or revise those not according to the common law 715, 716 n. (a). Lies not in lieu of appeal or writ of error. Barred by statute mak- ing decision final 715, 716 2. Writ of very extensive application, unless controlled by statute .... 716 3. Judgment in case fully heard in King s Bench on rule to show cause, judg- ment entered without waiting to bring up record on certiorari . . . . 717 ANALYSIS OF CONTENTS. \\ SECTION II. WHERE THERE 13 AN EXCESS OF JURISDICTION 717,71b SECTION III. JURISDICTION AND MODE OF PROCEDURE. 1. Lies in cases of irregularity, unless taken away liy statute .... 718,719 2. Inquisitions before officers, not known in liio law 719 3. Issuing of the writ matter of discretion. Defects not amendable . . 719,720 4. Not allowed for irregularity in proceedings, or evidence, or form of judg- ment 720 CHAPTER XXV. INFORMATIONS IN THE NATURE OF QUO WARRANTO. 1. General nature of the remedy. Now much controlled by statute . . 721, 722 2. Its exercise, in absence of statute, confined to highest court of ordinary civil jurisdiction 722 3. In the English practice, this remedy extended to municipal, but not to pri- vate corporations 722 4. In this country it has been extended to private corporations 723 6. It will remove an usurper of office, but not restore the one rightfully enti- tled 723, 721 6. Nor will it lie to prevent railway company from opening part of road until rest is completed 724 7. Nor against company for the issue of stock below par, or for beginning to build road before subscription is full 724 8. Form of the judgment depends on facts proved and objects sought . . . 725 9. Rules in regard to taxing costs 725 10. Used to test corporate existence and power 725 11. Penalties provided by charter cannot subsequently be increased to a tbr- feiture 726 12. But a grant of corporate franchises may be annulled when its purposes have failed 720 13. 5riVr/an'«s the proper remedy to determine forfeiture 720 14. Insufficient excuses for failure to repair a turnpike road 727 15. This remedy, under some statutes, does not supersede any equitable redress 727 TABLE OF CASES. A. Paoe Abbott V. Johnstown, Gloversville, & K. K. Co. G3G, 637 Aberdeen Kailway Co. v. Blakie 79 Aberystwitli Kiiilwa y Co , In re 30 Abraliani v. Great Northern li. Co. 833 V. He3'nohls 672 Ackland r. Lewis 107 Adair i;. Sliaw 168 Adams v. Ferick 147 V. Frve 120 V. London & Rlackwall R. Co. 389 V. Saratoga & Washington R. Co. 313, 319 Adden v. White Mountains R. Co. 309 Adderly v. Storm 132 Adler v. Milwaukee Patent B. Co. 100 Adiey v. Wiiitstabie Co. 83 A<'Ana. Insurance Co. v. Hannibal & St. Joseph 1{. Co. 475 Agar V. Athenajum Life A. Co. 622 Agricultural Bank v. Burr 111 r. Wilson 111 Agricultural Branch R. Co. v. Win- chester 172 Aiken v. Western Railroad Co. 642 Alabama & Florida R. Co. i;. Waller 5-57 Alabama & Tennessee R. Co. y Kidd 643 Alabama Great S. R. Co. v. McAl- pine 400 V. Powers 491 Albany Northern R. Co. v. Lansing 27L 270, 312 Albert v. Northern Central R. Co. 473 Alden v. White Mountains R. Co. 270 A Id ham v. Brown 30 Aldred v. North Midland R. Co. 31, 409 Aldrich ;;. Cheshire Uaiiroad Co. 307,340 Alilridge v. Great Western U. Co. 408 Alexander r. Crystal Palace II. Co. 371 Alexandra Park Co., In re 452 Alexandria & Frederick.«bnrg R. Co. V. Alexandria & Washington R. Co. 237 I'. Faunce 302 Algeo V. Algeo 6.S2 Alger V. Mississippi & Missouri R. Co. 502 P.10E Alleghany v. Ohio & Pennsylvania R. Co. 325 Alleghany City r. McClurkan 608 Allen V. Graves 123 r. Hay ward 510 V. Montgomery Railroad Co. 102 V. Utica, Ithaca, & E. R. Co. 294 Allman v. Havana Railroad Co. 104, 174 689 AUyn V. Boston & Alhanj' R. Co. V. Providence, Warren, & B. R. Co. Alton & Sangamon R. Co. v. Baugh r. Carpenter Alton Railroad Co. r. Northcott Ambcrgate, Nottingham, & B. & E. J. R. Co. I'. Coulthard r. Midland Railway Co. r. Mitchell V. Norclitre American Railway T. Co. v. Haven American Union T. Co. i: Harrison V. Western Union T. Co. Ammermon v. Wyoming Land Co. An1 Duverijicr v. Fellows 108 Du.xbury v. Vermont Central R. Co. £)80 Duynies v. Chicago & Northwestern R. Co. 272 Dyer r. Erie Railway Co. 588 r. Jones 401 V. Walker 50 Dyncn v. Leach 559 E. Eagle, The 334 Eagle V. Charing Cross R. Co. 358 Eakin v. Raiib 299 Eakright v. Logansport & Northern I. R. Co. 58, 145. 172 Eales V. Cumberland Black L. M. Co. 11 Eames v. Boston & Worcester R. Co. 524 V. Salem & Lowell R. Co. 480, 5:25 Earle r. Mall, 539 East & West L, D., & B. J. R. Co. v. Gattke 314, 348, 353, 301, 705 East Anglian R. Co. v. Eastern Coun- ties K. Co. 2G. 194, 6G2 East Brandy wine & W. R. Co. v. Ranck 272, 286 East Lancasliire R. Co. v. Ilattersley 445 V. Lancasliire & Yorkshire R. Co. 630. East Line & R. R. R. Co. v. Garrett 222 East London W. W. Co v. Bailey 21 East Pascagoula Hotel Co. v. West 57, 105 East Pennsylvania R. Co. v. Iliester, 288 I'. Ilottenstine 288 East Saginaw & St. C. R. Co. v. Benham 282, 20f. East Tennessee & G. R. Co. v. St. John 503 East Tennessee R. Co. v. Burnett 295 East Tennessee, V., & G. R. Co. v. B.ivliss 485 V. Diillield GGl t'. Scales 485 V. Selccr 485 V. White 681 East Wheal Martha M. Co. In re 142, 609, 700 Easter v. Little Miami R. Co. 5.31 Eastern Counties Railway Co., Ex finite 385 V. Broom 90 Eastham v. Blackburn R. Co. 204 Eastwood I'. Bain GOO Eaton V. Aspinwall 185 V. Moston, (^)ncord, & M. R. Co. 352 V. European &, JS'orlh American R. Co. 3UG, 318, 542 Eekert r. J>ong Island R. Co. 586 ICdgerly r. Enierson 78 Edgerton v. New York & New Haven R. Co. 508 Edgewood Railroad Go's Appeal 2.'j3 Edinburgh & Dundee H. Co. r. Leven 37G Edinburgh & Glasgow R. Co. v. Stirling Edinburgh, Leith, & N. R. liebblewhite Eck Elysville r. O'Kisco Embury c. Conner Emerson r. Western Union R. Co. Emmerson's Case Enfield TollBridge Co. >■ Hartford & New Haven R. Co. 242, 204, 207, 268 (JO 4S0 638. 510 320 173, 184 523 666 82 lfi2 2:;4 227 139 221, Ixvi TABLE OF CASES. Englewood Connecting K. Co. v. Chicago & Eastern I. R. Co. Ennis r. Wood Uiver IJ. II. Co. Enriglit v. ijan Francisco & San J. 11. Co. Entlioven v. Iloyle Eppt's V. Mississippi Gainesville, & T. K. Co. 145, Erie & Nortlieast R. Co. v. Casey Erie Railway Co. v. Decker Ernest v. Nicliols V. Croysdell Ernst V. Hudson River R. Co. 590, Escanaba & Lake M. T. Co. v. Cliicago Essex Bridge Co. v. Tuttle Estes r.- Atlantic & St. Ln wrence Tl. Co. Eton ColU'ize v. Great Western R. Co Etty V. Bridges European & North A. R. Co. v. Poor Eustis V. Parker Evans r. Haefner 256, r. Heart of Oak B. S. V. Memphis & Charles=ton R. Co. V. Mis.souri, Iowa, & N. R. Co. V. St. Paul & Sioux City R. Co. V. Sinalicoinbe Evansville & Crawfordsville R. Co v. Barber r. Cochran V. Dick 239, V. Duke V. Fitzpatrick 275, V. Stringer Everett v. Union Pacific R. Co. 273, Everhart v. Terre Haute & I. R. Co. V. West Cliester & P. R. Co. 182, Eversfield i-. Mid-Sussex Railway Co. 258, Lawrenceburg & Upper M. Eward v R. Co Ewing f Ej'ton t Co. Chicago & Alton R. Co. Denbigh, Ruthin, & C. R. F. 283 280 525 120 200 2f)l 472 00-1 0(55 5!)0 .335 it;2 50'J . 31 147 628 43 300 G88 98 384 49t; 008 527 510 200 320 510 510 274, 280 555 186, 190 252, 408 550 496 375 Falconer v. Campbell 61 1-. European & North A. R. Co. 491 Falkner v. Ohio & Mississippi R. Co. 98 !'. S;)inorset & Dorset R. Co. 274 Fall River Iron W. i;. Old Colony & F. R. R. Co. 333,413, 727 Falls V. Belfast & Bnllvmena R. Co. 372 Farley v. Cliicago, Rock I., & P. R. Co. 419, 577 V. St. Louis, Kansas C, & N. R. Co. 484 Farlow, l-'.r pnrte 301 Farmer-^' Bank r. Iglehart HI V. Wassou 112 Farnum v. Blackstone Canal Co. 47 Farrow v. Vansittart 2 Farvvell v. Boston & Worcester R. Co. 555, 560, 571, 572 Faulkner v. F>ic Railway Co. 558 V. Ik'bard 195 Faunce v. Burke 427 Faviell v. Eastern Counties R. Co. 360 F'awcett v. House 025 V. York & North M. R. Co. 493 Fearne & Deane's Case 72 Fearnlp}' r. Morlcy 4-50 Fearnside & Dean's Case 134 Featherstonhaugh r. Porcelain Co. Oil Felder r. Railro.ul Co. 548 Feltliani v. England 563 Felts V. Memphis 710 Fenton v. Trent & Mersey N. Co. 358, 705 Fenwick r. Bell OnO, 601 Ferguson v. Brighton & South C. R. Co. 371 V. Wilson 127 V. Wisconsin Central R. Co. 588 Fernow v. Dubuque & Southwestern R. Co. 528 Ferris v. Van Buskirk 515 Feut V. Toledo, Peoria, & W. R Co. 480 Fewings v. Tisdal 033 Ffooks V. London & Southwestern R. Co. 67 Field V. Field 78 V. Lelean 114 I'. Newport, Abergavenny, & II. R. Co. 400 V. New York Central R. Co. 474 V. Vermont & Massachusetts R. Co. 282 Filder r. London, Brighton, & S. C. R. Co. 030 Finch V. Central Railroad Co. 505 Finlay v. Bristol & Exeter R. Co. 645 Finnic v. Glasgow ^S: Southwestern R. Co. 401 First National B. v. Davies 58 Firth V. Midland Railway Co. 229 I'iscr j;. Mississippi & Tennessee R. Co. 105 Fish V. Dodtre 539, 540 V. Wolfe 420, 430, 454 Fisher v. Chicago & Springfield R. Co. 253 V. Essex Bank 151 V. Evansville & Crawfordsville R. Co. 198 Fishmongers' Co. v. Robertson 644 Fitch V. Buffalo, New York, & P. R. Co. 490 V. New Haven, New L , &. S. R. Co. 042 Fitchburg Railroad Co. r. Boston & Maine R. Co. 224. 282, 283, 285, 337, 355 V. Charlestown Mutual Ins. Co. 475 V. Grand Junction R. &. D. Co. 425 TABLE OF CASES. Ixvii Fitz-Iianliiige v. Gloucester & Berke- ley C. ("o. 291 Fitz[)atrick v. New Albany & Salem 1{. Co. 5f'.8 riaf:;;. />i rr, v. Lowber (j2G Flamaiik, Kr parte 221 Flattca V. Cliicat,'o, Rock I., &, P. R. Co. ^ ^ 401 Y\em\ng, Ex parte 070 Fletclier v. Auburn & Syracuse R. Co. 300, 318 V. Boston & Maine R. Co. 088 V. Ciioat Western R. Co. 315 V. Rylands 478 r. St. Louis, Kansas City, & N. K. Co. 508 Flint & IVre .^L R. Co. v. Dewey G27 Flower v. London, Brighton, & S. C. R. Co. 241 Flynn v. San Francisco & St. J. R. Co. 47:'. Foley ''. Hill 4.!'.» Fontaine v. Soutlicrn Pacific R. Co. 484 Fooks V. Wilts, Soniorset, & W. R. Co. 384 Foote r. Cin(;iiinati 9(} Forbes v. Atlantic & North C. R. Co. 490 Ford e. ("liicago & Northwestern R. Co. 301, 320 V. Metropolitan Railway Co, 3(50 V. Santa Cruz Railroad ("o. 317 Forrest v. Manchester, Slieffiekl, & L. R. Co. 005 Forster v. Cumberland Valley R. Co. 3(57 Forsythe r. Baltimore & Ohio T. Co. 423 Fort Edward & Fort Miller P. R. Co. V. Payne 108 Forward v. Hampsliire & Hampden C. Co. 200 Fosberry v. Waterford & Limerick R. Co. 424 Fossier i'. Morgans, Louisiana, & T. R. Co. 401 Foster r. Bank of England 214 I'. Essex Bank 514, 540 V. Fitch 458 V. Oxford, Worcester, &W.R. Co. 70 V. Walter 51 Fothcrby v. Metropolitan Railway Co. 09G Fowie V. New Haven & Northampton Co. 344 Fowler i-. Kennebec & Portland R. Co. 427 Fox I'. Northern Liberties 545 V. Ohio 235 V. Seal 455 V. Western Pacific R. Co. 382 Frankfort & Kokomo 11. Co. r. Windsor 288 Franklin Benevolent A. r. Common- wealth 711 Franklin Bridge Co. r. Wood 2 Franklin Glass Co. v. Alexander IGO Franklin Glass Co. r. White IGO l"rankl3'n v. Lamond I2l Eraser v. Whalley 610 Frazier v. Pennsylvania Railroad Co. 571 Freck v. Philade!i)hia, Wilnnngton, & B. H. Co. 585 Frederick v. Clarke 715 Freedle v. Nortii Carolina R. Co. 287 Freeman v. Minneapolis & St. Louis R. Co. 578 V. Winchester 1G2 Fremont v. Crippen 074 Fremont, Elkhorn, & M. V. R. Co. r. Whalen 272, 273, 288 Freon v. Carriage Co. 140, 141 Freshwater v. Pittsburg, Wheeling, & K. R. Co. 384 Fretz c. Bull 3.34 Eritli V. Dubuque 318 Fritz i\ St. Paul & Pacific R. Co. 400 Frost I'. Union Pacific K. Co. 5G3 Frv V. Lexington & Mig Sandy R. Co. 104.163,105,100,411 Fuller V. Academic School 710 V. Dame 025 Furman Street, In re 272 Eurniss v. Hudson River R. Co. 307, 350 Fyler u. Fyler 140 G. Gage !'. Delaware, Lackawanna, & W. R. Co. 500 V. Newmarket Bailway Co. 27, 28 Gahagan v. Boston & Lowell R. Co. 5'.t">, GUO Gale ('. Delaware, Lackawanna, &, W. R. Co. 03 Galena & Chicago R. Co. v. Griffin 604, 522 r Jacobs 504 V. Loomis 502 V. Yarwood GOO Galena & Soutlicrn W. R. Co. i-. Birk- bcck 295, 301 V. Haslam 285 Galloway v. London 243 Galveston, Harrisburg, & San A. R. Co. V. Donahoe 544 r. Pfeuffer 222 Gammage v. Georgia Southern R. Co. 384 Gandell v. P< ntigny 032 Gano V. State 721, 724 Gardiner f. Boston & Worcester R. Co. 323 V. Smith 5J0 Gardner v. Charing Cross R. Co. 375 V. Newburgh 233. 290. .300, 341 Garrett v. Chicago & Norlhwestcrn R. Co. 473 V. Salisbury & Dorset J. R. Co. 427, 446 Ixviii TABLE OF CASES. Giirrick v. Taylor IIG Garris i;. rortsmouth & Roanoke U. Co. 488 Garrison v. Memphis Insurance Co. 475 Gartliiiid v. Toledo, Wabasli, & W. 11. Co. 55G Gaskell V. Chambers 617 Gasway i'. Athinta & West P. II. Co. 551 Gates V. Burlington, Cedar R., & M. K. Co. 4'Jl, 4% Gawtiiern v. Stockport, Disley, &, W. R. Co. 832 Gayle v. Cahawba Railroad Co. 162 Gear v. Railroad Co. 317, 340 Gebiiart v. Junction Railroad Co. 100 Geiger v. Western Maryland R. Co. 4:;5 General Exchimsie Bank, /?i rr. 112 Genessee Chief, The, v. Fitzhugli 334 Georgia Hailrond & B. Co. v. Cox 484 Gerhard /•. Bates 138 German Bank r. Stumpf 53 Gerrard v. Omaha, Niobrara, & B. H. R. Co. 362 Getty V. Hudson River R. Co. 335 Getz's Appeal 253 Gibbons v. Ogden 336 Gibbs V. Liverpool Docks 652 Gibson r. East India ('o. 42') V. Northern Central 1?. Co. 504 i". Pacific Hailroad Co. 55'J Giesy I'. Cincinnati, Wilmington, & Z. R. Co. 259, 275 Gilbert's Case Gilbert v. Cooper V. Havernieyer Giles V. Boston & Maine R. Co. V. Hutt V. Taff Vale R. Co. Gillam v. Sioux City, & St. P. R. Co. Gillenwater v. Madison & Indianap- olis R. Co. Gillet V. Moody Gillett V. Western Railroad Co. Gilliam v. South & North A. R Co. Gillinwater v. Mississippi & Atlantic R. Co. Gillis V. Pennsylvania Railroad Co. Gillshannon v. Stony Brook R. Co. 153 8 304 620 164 548 527 568 108 420 544 244 90 562, 672 574 431 Gilman v. Eastern Railroad Co. V. Hall V. Philadelphia Gilmore v. Northern Pacific R. Co. 556, 505 (iilpen i;. Howell 107 Gittings I'. Mayhew 12 Glenn v. Dnrsheimer 191 V. Soide I'Jl Glover i-. London & Northwestern R. Co. 548 r. North Staffordshire R. Co. 2-;9, 311, 353, 301 V. Powell 337 Goddard i'. Chicago & Northwestern R. Co. 508 Goddard v. Hodges 15 V. Pratt 11 Goff V. Great Northern R. Co. 552 Gold V. Vermont Central R. Co, 292 Gold Mining (Jo., Ex jnute 629 Goodav V. Colchester & Stour V. R. Co. ' 16, 32, 228 Goodman v. Pocock 631 Goodrich v. Eastern Hailroad Co. 340 V. Reynolds 181 Goodtitle v. Kiiibe 235 Goodwin v. Boston & Maine R. Co. 291 V. Chicago, Rock I., &, P. R. Co. 490 V. Gtazer 713 V. Union Screw Co. 620 Gorman i'. Pacific Railroad Co. 492, 495 I'. Police Board 710 Gormley v. Ohio & Mississippi R. Co. 664 Goshen Turnpike Co v. Hurt in 161 Gothard v. Alabnma Great S. R. Co. 588 Gottschalk v. Chicago, Burlington, & Q H. Co. 317 Gould V. Chicago, Burlington, & Q. R. Co. 558 V. Hudson Piver R. Co. 236, 325,333, 355 Gowan v. St. Paul, Stillwater, & T. F. R. Co. 608, 520 Gradv, Ex parte 142 Graffy. Baltimore 303 V. Pittsburg & Steubenville R. Co. Ill, 181 Graham, /r-'r ]mrte, 60 V. Birkenhead, &c. R. Co. 66 V. Columbus & Indianapolis R. Co. 382 V. Mount Sterling C. Co. 455 Grand Gulf R. v. Stale 723 Cirand Junction 1!. & D. Co. v. County Commissioners 332 Grand Junction R. Co. /•. White 511 Grand Rapids & Bay C. R. Co. v. Van Dusen 426 Grand Rapids & Indiana R. Co. v. Heisel 310, 317, 318, 348 I'. Jones 523 Grand Rapids, Newavgo, &c. R. Co. r. Grand Rapids & "l. H. Co. 265 Grand Hai)ids Railroad Co. v. Alley 362 Grand Trunk Railway Co. v. Cum- mings 556 V. Cunningham 93 V. Richardson 473 I'. Rosenberger 584 Grannahan v. Hannibal & St. Joseph R. Co 457 Grant v. Savannah Railroad Co. 435 Gratz V. Red.l 162 Gravelle v. Minneapolis & St. Louis R. Co. 556 Gravcnstine's Appeal 67 Gray v. Burlington & Missouri R. R. Co. 222 V. Cincinnati Soutlieru R. Co. 101 TABLE OF CASES. Ixix Gray i'. Coffin V. Hook V. Liverpool &. Bury R. Co. 221, V. Pliiliuklpliia & Reading li. Co. r. Portlami Hank Grayble r. York & (jettysl»urg T. Co. Grays v. Lyiicliljurg & Salem T. Co. Gray ville & .Mattooii R. Co. v. Christy Great Kalis & 0. R. Co. v. Copp Great Liixemhourtj R. Co. v. Magnay Great Nortii of E., C;., & H. J. R. Co. t'. Clarence Railway Co. Great North of E. R. Co. v. Biddulph V. Clarence Railway Co. Great Northern R. Co., Jix parte V. Eastern Counties U. Co. I'. Harrison V. Kennedy V. South Yorkshire R. Co. Great Western R. Co. v. Bacon V. Birmingham &. Oxford J. R. Co. 30, V. Decatur I'. G odd is V. Goodman I'. Helm V. Lutz V. Metropolitan Co. i; Mortliiand V. Oxford, Worcester, & W. R. Co. V. Regina 691, V. Rushout 7t>, i". Thompson Greatlied v. Southwestern & Dorclies- ter R. Co. Green r. African Methodist E. S. V. Boody V. Miller V. Morris &. Essex R. Co. 278, V. Murray V. Seymour V. Winter Green Bay & Minnesota R. Co. v. Union Steamboat Co. Greenaway r. Adams Greeiiv." r. Dennis V. New York Central & H. R. R. Co. 317, Greene County i'. Daniel Greenville & Columbia R. Co. v. Cath- cart V. Coleman 194, V. Nunnamaker V. Parllow F. Smith V. Woodsides Green way r. Mead Greenwood v. Freight Co. V. Wilton Railroad Co. 283, Gregg V. Gregg 147 025 34. 23! t 67.; 51 187 58, 102 3(52 170 027 S'JG 8, 144 205 385 635 449 163 401 504 640 324 505 90 503 255 139 504 009 692 040 512 710 250 78 294 125 61 130 006 130 2 3.30 690 103 197 278 271 102 187 15 204 347 626 Gregory v. Patchett 006 Gretheii i;. Chicago, Milwaukee, & St. P. R. Co. 585 Greve v. St. Paul & Pacific R. Co. 383 (jrier.>;on v. Cheslure i.,ines C. 378, 399 Grippen i-. New York Central R. Co. 689, 597 Grissell f. Bristowe 115,123 Grosvenor v. Ilainpstead Junction R. ("o. 371 Gronx Improved S. Co. v. Cooper ■>[ Guest r. Ilomfray 2;>0 I'. Worcester, Bromvard, &, L. R. Co. 154 Gulf, Colorado, &, S. R. Co. v. Dorsey 674 V. Graves 310 V. Greenlee 584 1-. Holt 471 Gunn i;. London & Lancashire Ins. Co. 10, 029 H. Haas V. Grand Rapids & I. R. Co. 688 Habersham v. Savannah &. Ogeechee C. Co. 092 Hackett v. Boston, Concord, & Mon- treal R. Co. 290 Haddon v. Ayers 028 Haff V. Minneapolis &, St. Louis R. Co. 6.37 Hagar r. Rrainerd 304 llagerc Reed 127 Hagerstown Turnpike Co. v. Creeger 2 Halier v. Ciiicago, Umaha, &, St. J. R. Co. 296 Haiglit r. Keokuk 327 Haines v. Taylor 351 Hake v. St. Louis, Keokuk, & N. R. Co. 556 Haldeman v. Pennsylvania Central R. Co. 202 Hale V. Burlington, Cedar R., & N. R. Co. 458 V. Union Mutual F. Ins. Co. 543 Hall V. Chaffee 2:3 1 V. Nashville & Chattanooga R. Co. 475 V. Norfolk Estuary Co. 109, 126 r. Pickering 6;J0 r. Power 87, 88 V. Selma & Tennessee R. Co. 187 1-. United States Ins. Co. Ill, 180 V. Vcrnjont & Massachusetts R. Co. 25, 017 Ilalloran v. New York & Harlem R. Co. 488 Halloway v. University liailroad Co. 348 Iliiletead v. New York 2^>8 Ham r. Toledo, Wabash. & W. R. Co. CM Hambro v. Hull & I>: Ilayden 257 He wet t r. Swift 552 Hewitt V. Price 114 Hewsou V. London &, Southwestern R Co. 371 Hevl r. Philadelphia, Wilmington, &. B H. Co. 232 Ilibbard r. New York & Erie R. Co. 94. 90 Ilibblewhite v. M'Morine 113, 114, 120, 124 Ilibbs r. Chicago & Southwestern R. Co. i'^i, -ii Hihernia Turnpike Co. !•. Henderson 180 Ilickoy V. Uo-^ti.n & Lowell R. Co. 589 Hicknk r. Platisburgh 238 Hicks V. Launceston 59 Iliggins r. Livingstone 610 f. Walervliet Railroad Co. 96 Highland Turnpike Co. i-. McKean 59, 104. 186, 187 Hightower v. Thornton 102, ItiU Ilisiley c. Lancashire &, Yorkshire R. Co. 374 Ililcoat V. Archbishops of C. & Y. 30:j Hill f. (Jreat Northern R. Co. 374 I'. Manchester Waterworks Co. 622 f. Mohawk & lludsun R. Co. 262, 275 V. Pine River Bank 111 V. Portland & Rochester R. Co. 598 V. South Staffordshire R. Co. 045 V. Syracuse, Binghamton, &. N. Y. 'R. Co. 93 V. Western Vermont R. Co. 257 Hilles r. Parish 48 Hilliard i'. Chicago & Northwestern R. Co. 528 V. Coold 85, 97, 100, 003 c. Richardson 53'J Hilton V. (Jiraud 106 Hinckley v. Cape Cod R. Co. 688 Hine v Trover 334 Hines v. Keokuk &, Des Moines R. Co. 318 Ilinton V. Morris County C. S. 204 Hitchcock V. Danbury &. Norwalk R. Co. 412 V. Giddings 138 Hoagland r. Bell 155 I'. Cincinnati & Fort Wavne R. Co. ' 160 Honre, Kx parte 72. 134, 665 Hobbitt V. London & Northwestern R. Co. 538 llochster c. De Latour 432 Hodges I'. Rutland & Burlington R. Co. 017 Ilodgkinson v. National Live S. Ins. Co. 628 Iloey V. Dublin & Belfast J. R Co. 558 lloffbauer '•. Davenport &. North- we>tern R. Co. 93 Hofler V. Pomisylvanii Canal Co. 239 Hofnagle v. New York Central &, H. R. li. Co. 5.39 Ilngan v. Central Pacific R. Co. 65'i Hogg V. Zanesville Canal Co. 3."}5 Hou'gatt r. Vicksburg, Slueveiiort, & P. R. Co. 253 II(d\e V. St. Louis, Keokuk. & N. R. Co. 504 Ilolbert r. St. Louis, Kansas Citv, & N. R. Co. ■•-'23.283 Holcnmb r. New Hope Delaware B. Co. 78 Ilolilen '•. Fitehbiiri: Ix.iilroad Co. 5(>3 i;. Rutland JL Burhngion R. Co. 510, 518 Holder f. Lafavette, Bloomington, & M. R. Co. ' r,18 Hole V. Barlow 351 V. Sittingboume & Sheerness R. Co. 542 Ixxii TABLE OF CASES. Holland v. Chicago, Milwaukee, & St. P. K. Co. 587 lloUiday v. St. Leonard 652 Ilollister V. Union Co. 313 llolman v. Chicago, Kock I., & P. E. Co. 491 Holmes, Ex pnrie 72,714 V. Gilliland 59 V. Iliggins 15 Holt V. Gas-Light & C. Co. 356 Ilornan i'. Stanley 541 Ilomersham v. Wolverhampton Water Works Co. 431, 045 Honner r. lUinois Central R. Co. 555,571 Hook r. Worcester & Nashua K. Co. 520 Hooker v. New Haven & Northampton Co. 307, 341 I'. New York & New Haven K. Co. 313 I'. Utica & Minden T. Co. 259 Hooper v. Savannah &, Memphis R. Co. 273 Hop & Malt Co., In re 130 Hopkins v. Great Northern R. Co. 312, 359 V. Kansas Pacific R. Co. 484 V. Prescott 625 Horn V. Atlantic & St. Lawrence R. Co. 487, 515 Hornaday v. Indiana & Illinois C. R. Co. 199 Horner's Estate, In re 221 Hornstein v. Atlantic & Great W. R. Co. 272 Horton v. Westminster Improvement C. 622 Hortsman r. Lexington & Covington R. Co. 223 Hosher v. Kansas City, St. J., & C B. R. Co. 270 Hosking r. Phillips 385 Hotchkiss V. Auburn & Rochester R. Co. 283 V. Hougli 550 Houghton V. Railroad Co. 3.33 Houklsworth v. Evans 142, 607, 608 Ilousatonic Railroad Co. v. Water- bury 489 Houston & Great N. R. Co. v. Meador 539 i: Miller 555, 556 V. Parker 343, 344 Houston & Texas C. R. Co. v. Dun- ham 560 V. Myers 557, 560 V. Odum 316, 318 V. Terry 490 Howard v. (iage 688, 710 V. Wilmington & Susquehanna R. Co. 427 Howbeach Coal Co. v. Teague 165 Howden v. Simpson 23, 24 Howe V. Derrel 724 V. Starkweather 107 Hubbard v. Chappel 53 Hubbard ;;. Russell 343 llubberstv v. Manchester, ShefiBeld, &L. K.'Co. 118 Ilubgh V. New Orleans & C. R. Co. 568 lluddersfield Canal Co. i'. Buckley 163, 180, 182 Hudson V. Carman 58, 79 V. Leeds & Bradford R. Co. 384 Hudson & Delaware C. Co. v. New York & Erie K. Co. 267 Hudson River R. Co. v. Cutwater 300, 388 Hueston i\ Eaton & Hamilton R. Co. 350 Huey V. Indianapolis & Vincennes R. Co. 484 Hughes V. Antietam Manufacturing Co. 161 V. Chester & Holyhead R. Co. 420 V. Cincinnati & Springfield R. Co. 541 i;. Providence & Worcester R. Co. 320, 417 Hull Flax & C. Co. t'. Wellesley 14, 165 Humble V. Laugston 110, 119, 124, 129, 131, 132, 133, 134 V. Mitchell 106, 126 Humfrey r. Dale 125 Hunt I'. Adams 120 r. Gunn 15 V. Kansas & Missouri B. Co. 335 V. Test 626 Huntingdon & Broad T. M. R. Co. v. Decker 557 Hurd V. Rutland & Burlington R. Co. 513 Hurdman v. Northeastern Railway Co. 345 Hussner v. Brooklyn City R. Co. 317 Hutchins i-. State Bank 107 Hutchinson v. Cliicago & Northwest- ern H. Co. 220 I'. Manchester, Bury, & R. R. Co. 382, 387 V. York, Newcastle, & B. R. Co. 539, 555, 571 Hutton V. London & Southwestern R. Co. 220, 391 V. West Cork R. Co. 617 Huvett i". Philadelphia & Reading R. Co. 307, 471 Hyam, Ex parte 154 Hyams v Webster 250 Hyatt V. Whipple 69 Illinois & St. Louis R. & C. Co. v. Cobb 383 Illinois & Wisconsin R. Co. v. Van Horn 288, 290 Illinois Central R. Co. v. Bethel 343 V. Buckner 590 V. Dickerson 526 I'. Downey 648 V. Frelka 674 V. Gillis 491 TABLE OP CASES. Ixxiii Illinois Central R. Co. v. Goodwin V. (jiet-n V. ilaiuincT V. Indiana & Illinois R. Co. V. Jewell V. Jones V. Kaniinse t;. MiiMlesniith 1-. Miililleswortii V. Plielps V. Phillips V. Reedy V. Sutton V. Swcarinpen I'. United States V. Wlialen c. Williams Illinois Grand T. R. Co. v. Cook Illinuis Miilland R. Co. v. lilinuis Illinois Ivivur li. Co. v. Beers r. Zinuner Illinois Western E. R. Co. r. Mayrand 2'.).5 Inilay v. Union Branch R. Co. 324 Imperial (ias L., &c. Co. v. Hroadbent 350 Imperial Mercantile C. A , In re G8 Indiana, Blooniington, & VV. R. Co. v. Leak 522 Indiana Central R. Co. v. Gapon 518 V. Hunter 272, 27tj 504 544 6H5 '223 657 560 615 612 489 604, 525 504 627. 51»y 85, '.>8 504, 521, 525 235 528 525 411 635 193 65 V. Leamon 522 V. Moore 524 V. Oakes 283, 349 Indianapolis & Cincinnati R. Co. V. Caldwell 485 V. Elliott 529 I'. Guard 624 I'. Jewett 79 I'. Kerclieval 519 V. Kinney 487, 520 V. Mc Kinney 624 V. Meek 617, 532 V. Moore 529 V. Oestel 522 r. Snellinjj 629 V. Townsend 617 V. Wrifiiht 624 Indianapolis & Madison R. Co. V. Sol- omon 050 Indianapolis & St. Louis R. Co. V. Caldwell 514 V. Hackenthal 468 V. Hall 608, 509 V. Kennedy 98 V. Peyton 499 r. Smith 603 V. S my the 295 Indianapolis & Vincennes R. Co. V. MeLin 685 V. Newsom 294 Indianapolis, Bloomington, & W. R. Co. I'. Hartley 317 Indianapolis, Cincinnati, & L. R. Co. r. Hamilton 491 V. Ray 484 Indianapolis, Decatur, &. S. R. Co. v. Pu-h 288 Indianapolis, Peru, & C. R. Co. v. Lindley 523 V. Rayl 222 Indianapolis, Pittsburg, &. C. R. Co. v. Fisher 519 V. Kerclieval 519 1-. Sparr 501 V. 'I'ruitt 623 1-. Wharton 602 V. Williams 501 Indianapolis Railroad Co. v. Adkins 524 V. Klein 504, 571 V. Love 504, 571 Inger. Birininf,'ham, Wolverhampton, & S. V. R. Co. 128 Ingersoll v. New York Central &. II. R. R. Co. .588 V. Stockbridge & Pittsfield R. Co. 6.38 Inglis r. Great Northern R. Co. 10;^, 619 Ingram c. Chicago, Dubuque, &■ M. R. Co. 317, 819 International & Great N. R. Co. r. Benitos 237, 348 V. Smith 585 International Railroad Co. v. Bremond 192 Irish V. Burlington & Southwestern R. Co. 384 Irish Peat Co. v. Phillips 14 Iron Railroad Co. i: Fink 112 Frvin /•. Turnpike Co. 195, 266 Isaacs V. Third Avenue R. Co. 544 Isbell V. IS'ew York & New Haven R. Co. 528, 531, 592 Isham V. Bennington Iron Co. 107 J. Jackson r. Chicago & Northwestern R. Co. 472, 491 V. Cocker 108, 129 V. James 334 V. Kansas City, Lawrence, &, S. K. K. Co. 560 f. Lamphire 242 V. North Wales R. Co. 444 i;. People 715 i;. Rutland & Burlington R. Co. 258, 486, 52(5 ?'. Second Avenue R. Co. 544 Jacksonville v. Jacksonville Railw.iy Co. G30 Jacksonville & Southeastern R. Co. V. Walsh 272 Jacob J'. Louisville 274 Jacobs V. Peterborough & Shirley R. Co. " 229 Jacques v. Clinmbera 129, 140. 147, 148 Jam.'iica & Brooklvn P. R. Co. v. New York & Manhattan B. R. Co. 298 James r. Woodruff HI James River & Kanawha Co. r. Turner 271 Ixxiv TABLE OP CASES. Jancsville v. Milwaukee & Mississippi R. Co. S29 Jiirrett i-. Kennedy lo Jarvis r. Santa Clara V. R. Co. "Ai Jefiersonville Railroad Co. i-. Adams 4'.7i'i V. Minneapolis Union R. Co. 272 King V. Northlcach & Wiiitney R. V. Nottingham UM W. r. Ohio (Si, Mi^sis!>i|)pi R. Co. i;. Oliio Railroad (Jo. r. I'asmore V. I'ease V. I'edley V. I'ennegoes i^. Round V. Tiieodorick V. Whitaker V. Wilts &. Berks C. N. V. Winwick V. Witham Navigation Co. V. Wycomlie K;iilway Co. 371, Kip V. New York & Harlem U. Co. Kirk i: Bell J). Brondey Union G. Kish c. Venezuela Railway Co. Kistier v. Indianapolis & St. Louis ^ R. Co. 433, Kistner v. Indianapolis & St. Louis R. Co. Kitchen v. St. Louis Railway Co. Klein v. Alton & Sangamon R. Co. V. St. Paul, Minneapolis, & M. R. Co. Kline v. Central Pacific R. Co. Knapp V. London, Chatham, &, D. R. Co. I'. McAuley Knauft !'. St. Paul, Stillwater, & T. V. R. Co. Knight V. Abert V. Barber I'. Carrolton Railroad Co. I.-. Kox v. Toledo & Wabash R. Co. Knorr r. Germantown Railroad Co. Kno.\ County c. Aspinwall 070, Koch I-. Dauphin Korlmel r. New Orleans Railroad Co. Kramer v. Cleveland & Pittsburg R. Co. Kraus v. Burlington, Cedar R , & N. R. Co. Kroutz r. Toledo, Wabash, & W. R. Co. Kucheman v. Chicago, Clinton, &. D. R. Co. Kulm V. Chicago, Rock I., & P. R. Co. Kumler c. .Iimction Railroad Co. Kuthsburg Ci. Eastern R. Co. v. Henry Kyle V. Auburn «ic Rochester R. (So. 670 704 565 550 00 470 639 715 702 6U 78 675 78 395 375 283 607 430 610 430 446 06 102. 187 296 100 374 240 302 487 106 410 5;J8 525 318 094 259 318 287 484 521 318 4".»2 50.1 274 30S. 507 L. L'Amorenx v. Gould 201 Lacharnie v. Quartz Rock M. G. M. Co. 703 Lackawanna & Bloomsburg R. Co. »•. Doak 407, 469 Ixxvi TABLE OF CASES. Lackland v. North Missouri R. Co. 330 Lafayette & Indiana K. Co. v. Slirlner 4a7, 400, 517, 52G Lafayette, Bloomington, & M. R. Co. V. Clieeiiey G18 r. Winslow 274 Lafayette, Muncic, & B. R. Co. v. Murdock 269, '290, 309 Lafayette Plank-Road Co. v. New Albany & S. 11. Co. 307, 310 Laird v. Birkenhead Railway Co. 231 Lake v. Butler 414 V. Duke of Argyll 11 Lake Erie, Wabash, & St. L. R. Co. V. Eckler 457 Lake Ontario, Auburn, & N. Y. R. Co. V. Mason 144, 189 Lake Ontario Shore R. Co. v. Curtiss 200 Lake Shore & Michigan S. R. Co. v. Chicago & Western I. R. Co. 265, 381 V. Greenwood 98 j;. Knittal 558 V. Levalley 505 J'. McCormick 560 V. New York, Chicago, & St. L. R. Co. 265 V. Pierce W V. Rosenzweig 98 Lamar v. Railroad Co. 346 Lamb v. Lynd 697 V. North London R. Co. 41 1 Lamert v. Heath 125 Lanipliere v. United Workmen 141 Lamprell i-. Billericay Union 645 Lancashire & Yorkshire R. Co. v. Evans 357, 391 Lancaster & Carlisle R. Co. i;. Mary- port & Carlisle R. Co. 331 Lancaster Canal Co. v. Parnaby 649 Lance's Appeal 234 Lance v. Chicago, Milwaukee, & St. P. R. Co. 304. 309 Land Credit Co. v. Fermoy 631 Lande v. Chicago & Northwestern R. Co. 496 Landrigan v. State 87 Lane, A't ;>a/7e 142,619 Langliam v. Great Northern R. Co. 387, 391 Langley r. Boston & Maine R. Co. 369 Langlois i*. Buffalo & Rochester R. Co. 516, 562 Langton v. Waite 73 Lanning v. Chicago, Burlington, & Q. R. Co. 473 .Lantis, In re 719 Lathropp's Charity 365 Lauderhrun v. Duffy 306 Laugher v. Pointer 5.38, 539 Lnuterman v. Blairstown Railroad Co. 362 Law V. Illinois Central R. Co. 98 Lawrence v. Great Northern R. Co. 307, 343, 357 Lawrence r. Knowles 124 Lawrence Railroad Co. v. Cobb 317 Law ton v. Fitchburg Railroad Co. 511 Leach r. Eobes 127, 128 Lead Mining Co. v. Merry weather 629 Leame v. Bray 548 Leavenworth, Lawrence, & G. R. Co. V. Cook 472 Leavenworth, Topeka, & S. R. Co. v. Paul 255, 305 Leavitt v. Towle 320 Leazure r. Union Mutual L. Ins. Co. 47 Lebanon i-. Olcott 34'J Leber v. Minneapolis & Northwestern R. Co. 383 Leer. Milner 394,685,711 V. Northern Turnpike Co. 279 V. Northwestern Union R. Co. 245, 298 Leech v. Caldwell 435 Leeds & Thirsk R. Co. v. Fearnley 189, 190 Lefever v. Lefever 135 Legg V. Belfast & Ballymena R. Co. 365 Leliey v. Hudson River R. Co. 598 Lehigh Valley R. Co. i;. Lazarus 307 V. McKeen 481 V. Trone 307, 338 Lehmicke v. St. Paul, Stillwater, & T. F. R. Co. 286, 288 Leigh I'. Hind 414 Lemmex v. Vermont Central R. Co. 307 Leo V. Union Pacific R. Co. 63, 66 Leominster Canal Co. v. Shrewsbury & Hereford R. Co. 641 Leonardsville Bank v. Willard 69 Lesan i-. Maine Central R. Co. 587, 588 Leslier v. Wabash Navigation Co. 248, 254 Lester i'. Kansas City, St. J., & C. B. R. Co. 473 Levering v. Philadelphia, German- town, & N. R. Co. 245, 262 Leviston v. Junction Railroad Co. 349 Lewey's Island R. Co. v. Bolton 164 Lewis V. Billing 8 V. Chicago, Milwaukee, & St. P. R. Co. 474 V. New York Central R. Co. 463 V. Railroad Co. 364 V. Robertson 105 V. Smith 15 V. Wilmington & Manchester R. Co. 365 Lewiston r. County Commissioners 249 Lexington & Ohio li. Co. v. Applegate 323 V. Ornisby 230 Lexington & St. Louis R. Co. v. Mockbee 295 Lexington & West C. R. Co. v. Chandler 162,164,174,185 r. Staples 165 Lichfield t\ Simpson 350 Liebengnt ;•. Louisville, New A., & St. L. R. Co. 294 TABLE OP CASES. Ixxvii Lincoln i;. Saratoga & Schenectady II. C;o. 286 Linil r. Isle of Wi{,'litF. Co. 374, C91,(i'.»2 Lindsay r. CoiniiiissioiuTs 30:J V. (Jreat N'oriliern li. Co. '.'A V. Winona & St. IVter li. Co. 47 i Lindscy r. Attorney-General 721 V. Liickett 710 Lindn.s c. Melrose til 4 Linfield r. Old Colony R. Co. 585, (;.-,8 Lister r. Lobley 2!)'.) Liston V. Central Iowa R. Co. 52'J Little i". Newport, Abergavenny, & II. R. Co. 24U, 407 Little Miami R. Co. v. Collett 275 V. Greene County C. 419 V. Naylor 270, 410 V. Stevens 5154, 572 V. Wetniore 540, 548 Little Rock & Fort S. R. Co. v. Duffey 501 r. Dyer 3J8 r. Fiiiley 492 V. V-AgQ 624 V. Payne 505 i;. Trotter 492 Little Kock, Mississippi R , & T. R. Co. r. lirooks 334 Littlefield v. Bi)ston & Maine R. Co. 2'.)5 Littleton Manufacturing Co. v. Parker Livennore i'. Jamaica 175 275, 27G, 287 Livingston v. Grand Trunk Hailvvay Co. 9.3 V. New Vork 320 Llnnni'Uy Railway & D. Co. v. Lon- don & Nortlnveslern R. Co. 448 Lloyd r. New York 54<) Loch V. Venables 148 Locks & (Janals P. i'. Nashua & Lowell R. Co. 225, :i84, 310, .359 Loiler r. Kekule 121) Lodge No. 1. (•. Lodge No. 1 05 Logan V. Courtown 185 Logansport Railway Co. i*. Buchanan 297 I'. VVrny 508 Loisso i;. St. Louis & Iron M. R. Co. 291 Londesboroii'^l), E.v jiarte 13 London r. Vii nacre 71 London &, I5irniingham R. Co. v. Grand Junction C. Co. 350, .390 V. Winter 047 London & Mlackwall R. Co. v. Board of Works 294 I'. Letts 358 London & Brighton R. Co. v- Fair- clough 113, 120, 103 I'. Watson 98 r. Wilson 185 London & Northwestern R. Co. v. Ackroyd 227 V. Bradley 350, 391 V. McMichael 177 V. Skerton 424 London & Northwestern R. Co. «;. Smith .391 London & South W. R. Co. 380 London & Southwestern R. Co. v. Southeastern Kailway Co. 036 London, Brighton &, S. C. R. Co., J, I ,<- 365 V. London & Southwestern R. ( •(). 0.35 Lonli Mazetti v. A'ew York & Harlem R Co. McAllister v. Indianapolis & Cincin' nati K. Co. McAidle r. Irish Iodine Co. McAulay i;. Western Vermont R. Co. 301, 455 McAuley v. Colunibus, Chicago, & I. C. R. Co. McCafEerty v. Spnytcn Duyvil, & P. M. R. Co. McCai;; i'. Erie Railway Co. McCail I'. Byraui Manufacturing Co. V. Clianiberlain McCandless i'. Chicago &, Northwest- ern R. Co. MeCann v. South Nashville R. Co. McCariliv c. .Metropolitan Board McClasky v. Grand Rapids & I. Ii. Co. IGO McCUner v. Manchester & Lawrence R. Co. McClure r. People's Freight R. Co V. Philadelphia, AVilmington B. R. Co. McCluskey v. Cromwell McCoiinell i'. Caldwell McCool V. Galena & Chicago U. R. Co. 5:]1 McCormaek r. Tcrre Haute & Rich- mond R. Co. 348 McCorniick v. Chicago, Rock I. & P. R. Co. 508 V. Kansas City, St. Joseph, & C. B. I{. Co. 344 V. Lata vet te 300 McCoy V. ("aiifornia & Pacific R. Co. 488 f. Harnett County 680, Gil-S McCroaily r. Soutli Carolina R. Co. 471 McCuliocli V. Maryland 4(3 McCullough V. Annapolis & Elk Ridge R. Co. 78 McDaniels v. Flower Brook M. Co. 71, 72 McDermott i-. Hannibal & St. Joseph R. Co. McDonnell v. Pittsfield & North A. R Co. McDougall I'. Jersey Imperial H. Co & 173 G47 i:83 530 470 47 502 400 001 3oi) 200 93 457 71(J 00 ( 486 5.'>, 13'J McDowell V. New York Central R. Co. 519 McElroy v. Nashua &. Lowell R. Co. G40 MeEwen v. Woods 125 McKarland v. Orange & Newark H. C. R. Co. 412 Mc(;atri(;k v. Wason 507 .Mc(iinity r. New York G52 McGowin 1-. Remington 127 Mc(irath v. Detroit, Mackinac, & M. R. Co. 522 Mc(jrei;or v. Home Insurance Co. 208 .Mclleiny r. Jewitt 72 Mclleran r. .Melvin 716 Mclniire v. State 271 Mcintosh i: Great Western R. Co. 444 r. -Midhuid Counties R. Co. 440 McKee v. Grand Rapids R. Co. 450 Mclvinney v. Uhio & Mississippi R. Co. 523 McKissock v. St. Louis, Kansas C, & N. U. Co. 485 McKonkey v. Chicago, Burlington, & Q. R. Co. 490 MeLaughlan v. Detroit & Milwaukee R. Co. 50, 207 McLaughlin v. Charlotte & South C. R. Co. 3-42, 317 M'Laughlin v. Pryor 540 McLenden v. Atlanta & West P. R. Co. 350 McMahan v. Morrison 105 Mc.Mahon n. Cincinnati &, Chicago S. L. R. Co. 275 Mc.Manus r. Carmichael 338 V. Cricket t 544, 545, 547 McMasters v. Commonwealth 275 r. Pennsylvania Railroad Co. 539 Mc^Iichael c London & Northwestern R. Co. 190 McMillan v Mavsville & Lexington R. Co. ' 1G3 I'. Railroad Co. 555 V. Saratoga & Washington R. Co. 517, 557, 508 V. Seott 130 McRae r. Russell 187 r. Wihn\Mgt(m & Weldon R. Co. 08 McRec )••. Wilmington &, Raleigh R. Co. 207 McRevnolds i". Baltimore & Ohio R. Co." 271,278.285,304 Meacham v. Fitchburg Railroad Co. 271, 282, 380 Mead »•. Koeler 58, (i21 Meason's Instate 107 Meeks v. Southern Pacific R. Co. 686 .Meikel r. (Jerman Sivini;s F. S., &c. 53 Mellon I'. Western Railroad Co. 342 Mellors r. Shaw 557, 571 Melvin r. Lamar Insurance Co. 156 Memphis & Charleston R. Co. i". Blakeney 48G V. Lyon 4'jO Ixxx TABLE OF CASES. Memphis & Charleston R. Co. v. Orr 480 V. Payne oOl Memphis & Charlotte R. Co. v. Bibb 4'.)8 Memphis & Little U. R. Co. c. Horstkll 505 Memphis Railroad Co. v. Wilcox 442 Mendon v. ('ounty Commissioners 715 Mercer c. Mc Williams 247, COU V. Whall 279 Mercer & Somerset R. Co. i'. Delaware & Bound B. U. Co. Mercer County v. Pittsburg & Erie R. Co. Merchants' Bank v. Shouse Merchants' Line v. Waganer ISIerchants' National Bank v. Richards 112 Merriam v. Boston, Clinton, & F. K. Co. Merrihew v. Milwaukee & Mississippi R. Co. Merrill v. Ithaca & Owego R. Co. Merritt v. Northern Railroad Co. Merr}' v. Nickalls Mersey Docks >: Gibbs Mersey Docks & H. B. v. Penhallow Metcalfe v. Hetherington Methodist Episcopal Church y. Jaques 130 Metier v. Easton & Amboy R. Co. 211, 296, 297 Metropolis Bank v. Guttschlick 429 Metropolitan Elevated R. Co. v. Man- hattan Railway Co. 63, 78, 604 Metropolitan Railway Co. i^. Wood- house 374, 691 Me.xican & South American Co., Inre 154 Meyer v. Atlantic & Pacific R. Co. 505 ' V. North Missouri R. Co. 501 Michigan Air Line R. Co. v. Barnes 274, 292, 295, o02 Michigan Central R. Co. v. Dolan 550, 558 V. Gilbert 551 V. Smithson 500 Michigan, Northern, & S. R. Co. v. Shannon 519 Michigan Southern & N. L R. Co. v. Fisher 490, 495 303 453 112 68 108 97 454 222 128 594 652 6^.2 Micklethwait r. Winter Middlebury Bank r. Edgerton Middlese.K Railroad Co. v. Boston & Chelsea R. Co. Middlesex Turnpike Co. v Swan Middletown Bank >: Magill Midland Counties R. Co. v. Oswin 277 062 100 110 221, 395 Midland Great W. R. Co. i'. Gordon 8, 9. 153 Midland Railway Co. v. Davkin 487 V. Great Western R. Co. 636 Miers v. Zanesville & Maysville T. Co. 169 Mifflin V. Harrisburg, Portsmouth, >L & L. R. Co. 322 Miibank r. New York, Lake E., & W. K. Co. 064 Milburn v. Cedar Rapids, C. L, & N. K. Co. 327 Miles V. Bough 145, 619 Miliiau V. Sharp 323 Mill-Dam Co. v. Dane 194 Miller V. Auburn & Syracuse R. Co. 223, 319 V. Chicago & Northwestern R. Co. 505 V. Ewer 47, 48 V. Great Republic Ins. Co. 153 V. Illinois Central R. Co. 1-30 V. New York 334, 335 V. Pittsburg & Connellsville R. Co. 172, 205 f. Second JefTerson B. A. 1^3 r. Union Pacific R. Co. 556 Milligan v. Wedge 538 Milner v. Field 447 Mi hies V. Gery 228, 447 Milnor v. Georgia Railway & B. Co. 435 V. New Jersey Railro.ul Co. 269 V. Railroad & Plank Road Cos. 336 Milton r. Clayton 101 Milwaukee & Mississippi R Co. v. Eble 275, 298, 511, 513 Mims V. Macon & Western R. Co. 380 Miners' Bank r. United States 44 Minhinnah i\ Haines 694 Minor v. Mechanics' Bank 54 Minot V. Curtis 50 Mississippi & Missouri R. Co. v. By- ington 263 Mississippi & Tennessee R. Co. v. Devaney 410 V. Harris 105 Mississippi Central R. Co. v. Caruth 342 V. .Mason 313 V. Miller 505 Mississippi, Ouachita, & R. R. R. Co. V. Cross 411, 721, 724 Mississippi Railway' Co. v. McDonald 271 Mississippi River B. Co. i;. Ring 239,255, 270, 274 Missouri, Kansas, & T. R. Co. v. Long 578 Missouri Pacific R. Co. i'. Cornell 474 !-. Kincaid 471 r. Lvde 560 V. Watts 550, 5.59 V. Wilson 491 Missouri River, F. S., & G. R. Co. v. Miami County C. 643 Mitchell '•. Crassweller 548 V. Illinois & St. Louis R. & C. Co. 303 r. New York Central & H. R. R. Co. 588 V. Newhall 125 V. Rockland 613 r. Rome Railroad Co, 187, 193 Mitchil V. Alestree 468 Mix V. Lafavette, Bloomington, & M. R. Co. ' 317, 318 Mixer's Case, In re 610 Mobile & Montgomery R. Co. v. Blakely 699 TABLE OF CASES. Ixxxi Mobile & Montgomery R. Co. v. Smith 6u6, 5C0 Mobile & Ohio R. Co. v. Gray 472 r. Hudson 486 r. Thoiiiiis &;V.) r. Williunis 484, 402 Moliawk ^*c llmlson R. R. Co., In re 75 Mohawk Hrid^e Co. r. Utiua & Sciie- necrady K. Co. 207 Moisoii I'. Great Western R. Co. i544 Mokelmniie Hill .M. Co. v. VVoodburv 58 Mold r. Wiieatoroft 232, .308 Mollett V. Robinson 12o Monadnock Railroad Co. v. Felt 5lj Moncliet v. Groat Western R. Co. 3'.tl Money r. Macleod G25 Money penny v. Hartland 11 Montlet V. Cole 414 Monklanil l{ail\vay Co. >•. Dixon 3'J7 Monnioiithsliire Canal Co. i-. Harford 2 Monongaliela Navigation Co. r. Coons 2'jG, 2;39, 312 Monson v. PVnno 127 Montclair Railway Co. v. Benson 28(5 Montello, The 334 MontjioMiery & West Point R. Co. v. VHrner 287 Montgomery Southern R. Co. v. Mat- thews 184 Moody r. Corbett 397 Moore v. Fitchburg Railroad Co. 552 V. Great Southern & W. R. Co. 354 V. Hudson River H. Co. 451, 452 V. New Albany & Salem R. Co. 196 V. Schoppert 44 Moorlicad >•. Little Miami R. Co. 242,410 Morgan v. Rirnie 437 V. Chicago & Alton R. Co. 456 V, Chicago & Northea.-. IMcNamara V. O' Daily »•. Pace r\ Pickens r. Tilton New Albany Railroad Co. v. Fields New Bedford Turnpike Co. v. Adams 160 New Brunswick & Canada R. Co., In re 691 New Brunswick & Canada R. L. Co. )•. Muggeridpe 116,610 New Hampsliire Central R. Co. i'. Johnson 16:', 174 ^ew Haven & Northampton Co. v. Hayden V. State New Jersey Midland R. Co. v. Van Syckle New Jersey R. Co. ?•. Suydam New London v. Brainard New Orleans & Carrolton R. Co. v. New Orleans Second M. New Orleans & Selma R. Co. v. Jones 245, 298, 383 New Orleans, Jackson, & G. N. R. Co. V. Harris V. Lea New Orleans, Jackson, &c. R. Co. v. Huglies New Orleans, Mobile, & T. R. Co. v. Touline New Orleans, Opelousas, & G. W. R. Co. V. Lagarde New Orleans Pacific R. Co. i: Gay 271, 291 V. Murrell 296 New Orleans Railroad Co. v. Hughes 556 New River Co. v. Johnson 3.54 New York v. Bailey 539 V. Dutchess & Columbia R. Co. 694 r. Furze V. Rochester & State L. R. Co, V. Second Avenue R. Co. New York & Boston R. Co., Ex parte 244 New York & Brighton B, R. Co., /ii re 330 New York & Canada R. Co. v. Gunnison 252 New York &, Erie R. Co. r. Skinner 493, 494, 512, 513, 527 V. Young 254 220 675 227 279 242 410 64 215 557 490 275 344 695 226 New York & Greenwood L. R. Co. v. Stanley 305 New York & Harlem R. Co., In re 251 V. Forty-second Street & G. S. F. Co. 581 New York & Maryland L. R. Co. v. Winans 637 New York & New Haven R . Co. v. Ketchum 618 New York & West Shore R. Co., Jn re 295 New York Central & H. R. R. Co., In re 239, 253, 282, 202, 294, 296 V. Metropolitan Gas Light Co. 251 New York Central R. Co , In re 262 v. Marvin 293 New York City &E. R. Co. v. Patrick 182 New York City &N. R. Co. v. Central Union T. Co. 422 New York K.vdiange Co. »•. De Wolf 159 New York, Lackawanna, & W. R. Co , In re 264,271,282,291,295 New York, Lake Erie, & W. R. Co. V. Randel 584 New York, West Shore, & B. R. Co., In re 288, 318 Newbold & Metropolitan R. Co., In re 402 Newburv v. Connecticut & Passump- sic R.-R. Co. 579 Newijuryport Bridge Co. v. Story 160 Newby v. Colt's Patent F. A. Co. 47 Newcastle & Richmond R. Co. v. Peru & Indianapolis R. Co 265 Newcastle under-Lyne & L. T. Co. v. North Staffordshire R. Co. 424 Newell V. Williston 151 Newport & Cincinnati B. Co. v. L'nited States 335 Newport Mechanics Co. v. Starbinl 51 Newry &Enniskillen R. Co. v. Coombe 190 V. Edmunds 144, 155 Newry, &c. Railway Co. v. Moss 154 Newton v. Belcher 11 V. Liddiard 11 Niagara Falls & L. 0. R. Co. v. Hotcli- kiss 242 Nicholson i-. Erie Railwaj' Co. 589 V. New York & New Haven R. Co. 279, 320, 323 Xicklin »•. Williams 595 Nicol, Ex parte 137 r. New York & Erie R. Co. 261 NicoU i;. New York & Erie R. Co. 260 Nixon V. Brownlow 193 r. Taff Vale R. Co. 431, 439 Norfolk r. Tennant 391 Norfolk & Western R. Co. v. Wysor 98 Norris ?•. Androscoggin Railroad Co. 498 r. Cooper 10 V. Irish Land Co. 146 r. Vermont Central R. Co. 222, 425 Nortli American Colonial A. )•. Bentlev 144 North Britfsii R. Co. v. Tod 406, 689 North Carolina R. Co. i-. Carolina Cen- tral R. Co. 265 TABLE OF CASES, Ixxxiii Nortli Carolina R. Co. r. Leach 15S, 101 North lluJsoii C. li. Co. c. lioonK-m North Missouri R. Co. t;. Gott 241, V. Lackland r. Winkler North Pacific R. Co. v. Rcj'nolds North Pennsylvania R. Co. v. Rehman North Siiiehls Quay Co. c. Davidson North Shore Ferry Co., In re Nortii Stafforilsliire R. Co. i'. Dale I'. Landor V. Wood Nortliam, Bridsje, & R. Co. u. London & Southampton R. Co. Northeast Railmad Co. v. Payne Nortiieastern Railroad Co. v. Rodri- gucs 157, 1G4, V. Sineath 512, Nortiieastern Railway Co. v. Elliott Northern Asaam Tea Co., lu re Nortliern Central R. Co. v. Canton County Nortliern Indiana R. Co. v. Martin Nortliern Pacific R. Co. i;. Barnesville & Moorhead K. Co. Northern Railroail Co. »•. Concord & Clareaiont R. Co. r. Miller IGl, r. Page Northumberland r. Atlantic & St. Lawrence R. Co. Northwestern Railroad Co. v. Goss Northwe.stern Railway Co. r. Mc- Michael Norton v. London & Northwestern R, Co. r. Valentine Norwich v. Norfolk Railway Co. Norwich & Lowestoft N. v. Theo- bald 105, Norwich & Worcester R. Co. v. Cahill i: Killiiigly Nottingham v. Baltimore & Potomac R. Co. Newell c. Andover & Red-bridge R. Co. Noyes r. Rutland & Burlington R. Co. 54:5, V. Smith 608, 571, V. Spalding 110, Nugent V. Supervisors Nulbrown r. Tliornton Nutter V. Lexington & West Cam- bridge 11. Co. O. O'Brien i'. Pliiladelphia, Wilmington, & B. R. Co. 501, 504 O'Connor i- Chicago, Milwaukee, & St. P. R. Co. 491 ,198 2'J7, 30-J 294 ^41 171 294 250, 525 157 72 410 370 381 417 410 200 513 225, 315 111 223 518 383 234 104 04 590 532 189 225 343 002 174 420 418 317 014 047 573 114 102 120 173 O'Connor v. Pittsburg 321 V. 8t. Louis, Ivausas City, & N. R. Co. 318 I'. Spaight 439 O'Donald c. Evansville, Indianapolis, & C. R. Co. 52 O'Donnell i-. Allegheny Valley R. Co. 508 O'llara r. Lexington Railroad Co. 209 O'Neal V. King 175 Oakes v. Oakes 148 Occidental Insurance Co. i-. Ganz- horn 150 Ogdensburg & Lake C. R. Co. r. Ver- mont & Canada R. Co. 004, G37 Ogdensburg R;iilroad Co. v. Wolley 172 Ogdensburg, Rome, & C. R. Co. v. Frost 55, 161 Ogle V. Graham 120 Ohio & Mississippi R. Co. v. Clutter 500 r. Collarn 557 r. Dunbar 037 r. Indianapolis & Cincinnati R. Co. 035, 067 V. Irvin 502 i". Jones 486, 525 V. Meisenheimer 525 V. Quier 519 V. Rowland 622 V. Sliaiu-telt 473 V. Taylor 503 Ohio & Pennsylvania R. Co. i-. Wal- lace 278 Ohio, &c. Railroad Co. v. Ridge 41 Oil Creek & A. R. R. Co. r. Penn- svlvania Transportation Co. 005 Old' Colony & F. R. R. Co. v. Ply- mouth County 420 Old Colony Railroad Co. r. Evans 128 V. Miller 304 Oldtown & Lincoln R. Co. r. Veazie 175 Omaha & Northwestern R. Co. r. Menk 384 Ontario & Quebec R. Co. i-. Taylor 352 Oresron Railway & T. Co. r. Oregon Re.il Kstate Co. 200 Oregonian Railway Co. v. Hill 239, 298 Oriental Inland S. Co. v. Rriggs 00, 117 Orincrod r. New York, West Shore, & B. R. Co. ^ 333 Ormond v. Holland 601, 671 Ormsby v. Vermont Copper M. Co. 70 Ornamental Pyrographic W. Co. v. Brown 60 Orono V. We Igeworth 50 I ( )rpeii, A'.r parte 1 1 1 Orr r. Bigelow lU V. Glasgow, Airdric, & M. J. R. Co. 105.017 r. United States Bank OtV Osborn c. United Stales B. 4t> Oskaloosa Agricultural W. v. Park- hurst "^ W Oswego Falls Bridge Co. r. Fish 242 Ottawa I'. Chicago & Rock I. R. Co. 710 Ixxxiv TABLE OF CASES. Ottoman Co. v. Farley 630 Overcnd v. Gibb 614 615 Overniyer v. Williams 258 Overton v. Freeman 538 Owen v. Puniy 62 1-. Van Later 614 Owens V. Hannibal & St. Joseph R. Co. 491 Owinps V Speed 213 Oxford, Worcester, & W. R. Co. V. Soutli Staffordshire K. Co. 258 Pacific Railroad Co. v. Brown 496 V. Chrystal 275 V. Hughes 196 V. Renshaw 194 V. Seely 632 Pack I". New York 539 Paducah & Memphis R. Co. v. Stovall 273 Page V. Heineberg 257 V. Milwaukee & St. Paul R. Co. 272 V. North Carolina R. Co. 49'j Paige V. Smith 654 Paine v. Hutchinson 131, 140 Palmer v. Denver & Rio Grande R. Co. 560 V. Hungerford Market 361 V. Lawrence 162 V. Missouri Pacific R. Co. 471, 472 V. Woodbury 721 Palmer Co. v. Ferrill 275 Pardoc v. Price 705 Parish v. Parish 127 Parker v. Adams 586 V. Boston & Maine R. Co. 283, 285, 308, 401, 579 V. Bristol & Exeter R. Co. 460 V. Cutler Milldam Co. 333 V. Erie Railway Co. 546 V. Great Western R. Co. 460 V. Massachusetts Railroad Co. 458 V. Perkins 229 V. Rensselaer & Saratoga R. Co. 636 V. Smith 721 V. Thomas 171, 173 V. Wilmington & Weldon R. Co. 584, 588, 716 Parkes, £'r /ifjrte 712 V. Great Western R. Co. 438 Parks V. Boston 272, 363 I'. Wisconsin Central R. Co. 274, 304 Parmelee v. Oswego & Syracuse R. Co. 380 Parnaby v. Lancaster Canal Co. 649, 052 Parrott i\ Byers 149 V. Eyre 616 Parsons r. Howe 249 Paterson & Newark R. Co. v. Stevens 334 Paterson Gas L. Co. r. Brady 5.52 Patten v. Northern Central R. Co. 310 473 47 451 575 621 407 718 538 174 455 605 406 565 457 544 317 Patton V. St. Louis & San T. R. Co. Paul V. Virginia Paulding (•. London & Northwestern R. Co. Paulmie r. Erie Railway Co. Paxton r. Popliam Payne v. Bristol & Exeter R. Co. Peabody v. Buentillo Peachy i". Rowland Peake v. Wabash liailroad Co. Pear c. Burlington, Cedar R., & M. R. Co. Pearce v. Madison & Indianapolis R. Co. V. Wycombe Railway Co. Pease v. Chicago & Northwestern R. Co. Peavy v. Calais Railroad Co. 240, 338 Peck r. North Staffordshire R. Co. 476 I'. Rush Peeples v. Brunswick & Albany R. Co. Pekin v. Winkel Pell V. Northampton & Banbury R. Co. 375, 386 Pendleton Street R. Co. v. Shires 102 Pennsylvania v Wheeling Bridge Co. 33-5, 336, 339 Pennsylvania & Delaware E. Co. i'. Leuffer 457 Pennsylvania & New England R. Co. V. Ryerson 229 Pennsylvania & New York R. Co. v. Bunnell 271, 288, 305 Pennsylvania Bank I'. Commonwealth 409 Pennsylvania Canal Co. r. Bentley 589 Pennsylvania Railroad Co.'s Apjieal 149, 264 Pennsylvania Railroad Co. v. Com- monwealth V. Duquesne Borough V. Gorsuch V. Heister r. Keiffer V. Kerr r. Krick V. Lewis V. Porter V. Roney r. Wachter V. Watson Pennj', In re Penobscot & Kennebec R. Co. v. Dunn 157, 16.3, 175 Penobscot Railroad Co. v. Dummer 163, 172, 174, 175 V. White 79, 103, 172, 613 Pensacola Telegraph Co. v. Western Union T. Co. 422 People V. Albany & Susquehanna R. Co. 723 V. Albany & Vermont R. Co. ^ 691 V. Batchelor 70, 71 V. Beebe 677 318 462 423 295 29.3 291 480 684 584 245 557 561 471 718 TACLD OF CASES. Ixxxv People V. Benton 435 V. Hetts 710 v. IJoiinl of Delepates 715 V. Board of IKallli 715, 718. 71'J V. Boston & Albany 11. Co. 41'J V. Brooklyn 234, 274, 275 r. Brown 007 V. Caryl 85 V. Cass County 090 V. Ciiambers 65, 58 V. Ciieeseman 54 V. Chicago & Alton R. Co. 417 V. Collins eU7 V. Columbia Common P. 098 V. Dutchess & Columbia K. Co. 419 V. Kverett 078 V. Finger 678 V. First Judjre of C. 292 t'. Geneva College 48 V. Hatcii 697 V. Haws 674, 097 V. llavdon JIOO V. Head 073, 710 V. Hilliard 718 V. Hudson Commissioners 677 V. Jackson & Michigan P. R. Co. 402, 725, 720 V. Jillson 85 V. Kerr 269, .327 r. Logan County 69ti V. Louisville & Xashville R. Co. 414 V. McHoberts 291 V. Mead 694 V. Michigan Southern R. Co. 300 i>. New York 697, 709 V. New York & Harlem R. Co. 220, 331 V. New York Central & IL R. R. Co. 419, 691 V. New York Central R. Co. 692 V. New York, Lake E., & W. R. Co. 095 V. New York, New Haven, & H. K. Co. 419 V. North Chicago R. Co. 720 V. Northern Tacific R. Co. 709 V. Pacific Mail S. Co. 708 V. Peabody 719 V. Pittsburg Railroad Co. 253 V. Public Accounts A. 675 V. Pueblo County C. 090 V. Rensselaer & Saratoga R. Co. 335 V. Ridgely 721 V. River Kaisin & L. E. R. Co. 723 V. Rochester &, State L. R. Co. 675 V. Romert 675 V. St. Louis 835 r. Scanuell 724 V. Stockton Railroad Co. 54 I'. Third Avenue R. Co. o^'.l V. Thompson 710, 723 V. Throop 213, 077 V. Troy House Co. 55 r. Van Alstyne 715 People v. Vanderbilt 340 V. West Chester S. 712 V. Wheeler 715 i;. White 259, 201 V. Wood 713 Peoria & Farmington R. Co. v. Bar- num 285 Peoria & Oquawka R. Co. v. Elting 163, 196 Peoria & Pekin U. R. Co. r. Peoria & Farmington K. Co. 280 Peoria & llock Island R. Co. v. Lane 037 r. Rice 283 Peoria & Springfield R. Co. i". Thomp- son 665 Peoria, Atlanta, & D. R. Co. r. Saw- yer 2«6, ."04 Peoria, Decatur, & E. R. Co. v. Miller 490 V. Schiller 520 Peoria, Pekin, & J. R. Co. v. Champ 503 c. Peoria & Springfield R. Co. 205 Peoria Railroad Co. r. Preston 104, 174 Perkins c. Eastern Railroad Co. 487, 527 i: Hart 6.32 V. Sanders 55, 58, 61 Perley v. Eastern Railroad Co. 480 Perrin i'. Granger 100 Perrine v. Chesapeake & Delaware C. Co. 242 Perry i\ Dubuque Southwestern R. Co. 509 V. Marsh 567 V. New Orleans, Mobile, & C. R. Co. 318 V. Simpson Water P. M. Co. 612 V. Southern Pacific R. Co. 472, 481 Perth Aniboy S. Co. v. Parker 57 Peru Railroad Co. i-. Ilaskett 617 Peters v. St. Louis & Iron M. R. Co. 457. 0.33 Petre v. Eastern Counties R. Co. 20, 35 Pettibone v. La Crosse & Milwaukee R. Co. 351 Pfeifer v. Sheboygan & Fond du Lac R. Co. 352 Pflegar v. Hastings & Dakota R. Co. 305, 345 Phelps V. Lyle 80 Piiene i'. Gillan 131 PhifLT V. Carolina Central R. Co. 290 Philadelphia & Erie R. Co. i'. Atlantic & Great W. R. Co. 670 1-. Cake 271, 292 Philadelpliia & Gray's F. P. R. Co.'s Appeal 204 Philadelphia & Reading R. Co. r. Carr 687, 588 V. Derby 547 V. Hendrickson 473, 474 c. Kiilips 584 r. Pliiladolphia 2C.9 V. Sciuiltz 472, 473. 474 r. Yeiser 300, 3il6 V. Yerger 470 Ixxxvi TABLE OF CASES. Pliiladtlphia & Trenton R. Co. 239, 312, Philadelphia & West Chester R. Co. V. Hickman 186, 204 Philadelphia, Gcrmantown, & N. H. Co. V. Wilt %, 487, 644, .547 Philadelphia Railroad Co. i'. Trimble 285 Philadelphia, Wilmington, & B. R. Co. V. Co well 209 V. Howard 439, 047 V. Kerr 5! "8 V. Maryland 558 V. Quigley 551, G13 V. Trimble 511 Phillips r. Chicago, Milwaukee, & St. P. R. Co. 563 V. Eastern Railroad Co. 208 V. Veazie 579 Phillips & Colby C. Co. v. Seymour 427 PhcKnix Life Assurance Co. 155 Physicians College v. Salmon 50 Pickard v. Smith 652 Pickering r. Ilfracombe Railway Co. 169 V. Stephenson 630 V. Templeton 156 Pieri'.^inel 93 Pierfe v. Worcester & Nasliua R. Co. 476 Piggot V. Eastern Counties R. Co. 467, 468 Pigott V. Great Western R. Co. 297 Pinkerton v. Mancliester & Lawrence R. Co. 143, 151 V. Manchester Railroad Co. 152 Pinketl v. Wrigiit 149 Pioneer Paper Co., In re 73 Piscataqua Ferry Co. v. Jones 105, 161, 173, 186 Pittsburg V. Pennsylvania R. Co. 263 V. Scott 300 Pittsburg & Connellsville R. Co. i'. Clarke IIL 151 ('. Stewart 205 Pittsburg & Lake Erie R. Co. i^. Bruce 269 r. Robinson 271,273,288 Pittsburg & Steuben R. Co. v. Hall 286 Pittsburg, Bradford, & B. R. Co. v. McCloskey 270, 272, 274, 510 Pittsburg, Cincinnati, & St. L. R. Co. V Bowyer 522 V. Campbell 468 V. Columbus, Chicago, &, 1. C. R. Co. 635 V. Culver 472 i;. Eby 509 V. Hixon 472 V. Hunt 484 V. .Jones 474 V. Laufman 522 V. McMillan 485 V. Nelson 472 V. Noel 473 V. Smith 628 Pittsburg, Fort Wayne, &. C. R. Co. V. Devinney 658 V. Dunn 689 V. Evans 691 V. GiUeland 272, 312 V. Powers 665 Pittsburg, Virginia, & C. R. Co. v. Bentley 362 V. Rose 286, 305, 317, 318 Pittsfielu & North Adams R. Co. u. Foster 282, 294 Planche' v. Colburn 432, 632 Plank-Road Co. u. Buffalo Railroad Co. 299 V. Payne 161 Plant V. Long Island R. Co. 31.3, 319, 322 Planters' & Merchants' B. v. Leavens 107 Plate Glass Ins. Co. v. Sunley 183 Plate Manufacturers v. Meredith 321 Piatt V. Bright 282 Plum I'. Morris Canal & B. Co. 321 Plymouth Railroad Co. v. Colwell 257, 412 Pochelu V. Kemper 53 Poeppers v. Missouri, Kansas, & T. R. Co. 481 Pokr r. Ts'ew York Central R. Co. 496, 515 Pollard V. Hagan 235 Pollock V. Stables 124 Polly V. Saratoga & Washington R. Co. 247 Pomeroy v. Chicago & Milwaukee R. Co. 329 Pontchartrain Railroad Co. v. Lafayette & Pontchartrain R. Co. 411 Poole V. Middleton 117 Pope V. Great Eastern R. Co. 377 Porcher v. Gardner 27 Port Huron & Southwestern R. Co. v. Voorheis 295 Port of London Assurance C. C. 74 Porter v. Androscoggin &. Kennebec R. Co. 647 f. Buckfield Branch R. Co. 433 V. County Commissioners 282 Portland & Ogdensburg R. Co. v. Commissioners 296, 719 Portland & Rochester R. Co. v. Deering 266 Portland, Saco, & P. R. Co v. Graham 164, 185 Pott V. Flather 126 Potts V. Thames Haven D. & R. Co. 30 Pottstown Gas Co. v. Murphy 306 Poulton V. London & Southwestern R. Co. 652 Powell V. Hannibal & St. Joseph R. Co. 501 V. Missouri Pacific R. Co. 584 V. Pittsburg, Cincinnati, & St. L. R. Co. 93 Power V. Savannah Railroad Co. 286 Powers V. Bears 292, 301, 350 r. Hazelton & Setonia R. Co. 273 Powles i;. Page 603 TADLE OF CASES. Ixxx vn 47(5 3:j0 211 81)'.), Poyndcr v. Groat Northern Tl. Co. 248. ' Queen 300, SS5, 3»7 Pratlier i-. Western Union T. C(j. 422 Pratt V. Atlantic & St. Lawrence 11. Co. V. ButTalo City U. Co. Premlergast v. Turton Presbrey v. Old Colony & X. H. Co. Presbyterian Society »•. Auburn & Roclioster U. Co. 318 Preston r. Dubuque & Pacific R. Co. 2o0 V. Eastern Counties 11. Co. 313 V. Crantl Collier 1). Co. 156 V. Liverpool, Manchester, & N. J. K. ( ;o. 10, 28, 30, 30, 220 V. Norfolk Railway Co. 343 Price V. Dunb., R., & C. U Co. 128 i;. Grand Rapids & I. R. Co. IfJO V. Hannibal & St. Joseph U. Co. 500 II. New Jersey R. Co. 48'J V. Powell COO V. Price 107 Pricliard v. La Crosse & Milwaukee R. Co. 495 Pricket t v. Atchison, Topeka, & S. R. Co. 522 Priest i: Hudson River R. Co. 544 Priestlv v. Foulds 423 V. Fowler 655, 5'0, 560, 571 V. Manchester & Leeds R. Co. 350, nm Prospect Park & C. I. R. Co., In re 2'.>5. 318 I'. Williamson 203 Protzman v. Indianapolis & Cincin- nati It. Co. 2.iO, 200, 32G Provalt V. Chicago, Rock Island, & P. R. Co. 205 Providence Bank i-. Billings 47, 242 Provident Savings I. v. Burnham 53 Provolt i\ Chicago, Rock Island, & P. R. Co. 245, 383 Pryor v. St. Louis, Kansas C, & N. R. Co. 491 Pryse r. Cambrian Railwaj' Co. 232 Pryzbylowicz v. Missouri River R. Co. 302, 383 Pueblo & Arkansas V. R. Co. i-. Rudd 2!»5 Pugh V. Golden Valley R. Co. 341 Pulling V. London, Chatham, & I). R. Co. .371 Pulsf'ord r. Richards 20'.t Punipelly r. (Jrcen Hay Co. 237, 230, 275 Purl c. St. Louis, Kansas C, & N. R. Co. 588 Putney i'. Cape Town R. Co. 432 543 374 72.3 070 . Birmingham & Gloucester R. Co. V. Birmingham & Oxford J. R. Co. V. Blizard V. Bristol & Kxoter R. Co. V. (^'ambrian Railway Co. 857, 'J.VJ V. Di.xon 715 r. Kastern Counties R. Co. 2-38,230, 670 V. Great North of K. li. Co. 540 V. Lancashire &, Yorkshire R. Co. 0«1 V. Lofthome 724 t". London & Greenwich R. Co. 370 I'. London & Southampton H. Co. 303 V. London & Southwestern \i Co. 371 I'. Manchester & Leeds R. Co. 077 V. North Union R. Co. 357,670 Q. Quarman i>. Burnett 538, 639 Qnayle v. Missouri, Kansas, & T. R. Co. 294 t'. Norwich & Brandon R. Co. G70 V. South Holland Drainage C. 720 V. Stone 377 V. Vaughan 359 V. Vaughan & Metropolitan D. R. Co. 401 V. Woods & Forests C. 378 V. York 070 t'. York & North M. R. Co. 689, 703 Quicke, Ex parte 691 Quigley v. Central Pacific R. Co. 544 Quillinan v. Canada Southern R. Co. 003 Quimby v. Vermont Central R. Co. 510, 512, 594, 590, 000 Quincy i'. Chicago, Burlington, & Q. R. Co. 318, 319 Quincy Canal P. v. Newcomb 320 Quincy, Missouri, & P. R. Co. r. Ridge 270, 295 Quiner v. Marblehead Insurance Co. 110 R. Radcliff I.-. Brooklyn 312, 325, 844 Ragsdale i'. Memphis & Charleston R. Co. 556 Raiford v. Memphis &, Charleston R. Co. 486 Railroad Co., Kx parte 321 V. Boycr 285 I.'. Rucher 285 i;. Davis 259 V. Gilson 272, 278 ?•. Howard 623 r. lluininell 801 I'. Johnson 2'.il V. Miami County I. 609 V. Norton 693 V. Olmstead 6'.t0 V. Washington 308 Railroad Commissioners v. Portland & Oxford V. R. Vo. 691 Railsback r. Liberty <-<: Abington T. Co. " 57, 195 Railstone v. I'ork, Newcastle, & B. R. Co. 3i>9, 390 Ixxxviii TABLE OF CASES. Railway Co., Ex parte V. Allerton V. Barron V. Cronin V. Gruliiim V. Ileiskell r. Howard X'. Kearny i;. Lawrence V. liaiiney V. Whitton 698 66 649 456 163 628 486 424 322 563 689 Raleijili & Augusta A. L. R. Co. r. Wicker 270, 305 Kaleigli & Gaston R. Co v. Davis 41, 303 Kalis County C. r. United States 697 liamsden i\ Boston & Albany R. Co. 543 V. Dyson 223 V. Mancliester, Soutli Junction, & A. R. Co. 297, 319, 370 Ranch v. Lloyd 503 liand V. T()wnslie!id 395 ('. Wiiite Mountain Railroad Co. 127 Randall v. Clieshire Turnpike Co. 602 Randle v. Williams 719 Randleson v. Murray 539, 540 Rangeley v. Midland Railway Co. 2o0 Ranger i: Great Western R. Co. 407, 426, 434, 438, 443 Ranken v. East & West I. D. & B. J. R. Co. 385 Ranson r. Stonington Savings B. 706 Raphael v. Thames Valley R. Co. 232 Rapson v. Cubitt 538 Rasmusson v. Chicago, Rock I., & P. R. Co. 561 Rathbone v. Tioga Navigation Co. 222, 257, 429 Ray ?'. Atchison & Nebraska R. Co. 384 Ray n e r, Ex pa rte 116 Reading & Columbia R. Co. v. Lat- shaw 473 Real Estate S. I. v. Fisher 52, 53 Reaveley's Case 190 Redtord v. Bagshaw 135 Redman v. Philadelphia, Marlton, & M. R. Co. 302 Redmond r. Dickorson 625 Reed r. Hanover Brnncli R. Co. 296 Reedie v. London & Northwestern R. Co. 638, 540 Reese r. Bank of Commerce 112 Reese River S. M Co. v. Smith 210 Regina r. Abrahams 709 V. Anibergatc, Nottingham, & B R. Co. 376, 701 r. Ambergato Railwav Co. 690 V. Balbv & Worksop T. 70-5 V. Baldwin 702 r. Bell 716 r. Bingham 712 v. Birmingham & Gloucester R. Co. 421,694,700 V. Birmingham & Oxford li. Co. 679, 702 Regina i: Blackwall Railway Co. 712 V. Bridgeuorth 678 V. Brighton & South C. R. Co. 678 V. Bristol & Exeter K. Co. 706, 717, 718 V. Bristol Dock Co. 694, 713 r. Burslem Board of H. 680 V. Caledonian Railway Co. 407, 689, 6'.i4, 703 V. Cambridge 679, 702 r. (Chester 676, 698, 699 r. Cottle 373 r. Dartmouth 678 V. Dean & Chapter of R. 698 V. Doptford Improvement Co. 704 V. Derbyshire, Staffordshire, & W. R. Co. 677 V. Dundalk & Enniskillen R. Co. 692, 701 V. East & West I. D. & B. J. R. Co. 415, 417, 703 V. East Anglian R. Co. 078 V. East Lancashire R. Co. 677 V. Eastern Counties R. Co. 314, 354, 357, 393, 424, 677, 678, 687, 690, 694, 701 V. Ely 423 V. Fall 678 V. Fisher 358 V. Frere 92 V Gamble 713 r. General Cemetery Co. 117, 141 V. Great Western R. Co. 677, 690, 700 r. Greene 679 i\ Grimshaw 77 I'. Hammond 710 V. Hampton 722 V. Heart of Oak B. S. 710 V. Hopkins 678 V. Hull & Selby R. Co. 705 V. Jones 677 V. Justices 678 r. Justices of Warwickshire 677 V. Lancashire & Preston R. Co. 718 17. Lancashire & Yorkshire R. Co. 690, 700, 701, 711 I'. Ledgard 676 r. Leeds & Liverpool C. Co. 711 V. Liverpool, Manchester, & N. R. Co. 140, 712 I'. London & Birmingham R. Co. 424, 695 V. London & Blackwall R. Co. 679 V. London & Greenwich R. Co. 370 V. London & Northwestern R. Co. .392, 700, 701, 711, 716 V. Londonderry & Coleraine R. Co. 144, 709 V. Lundie 83 V. Manchester & Leeds R. Co. 379, 694, 695, 713, 714, 719 V. ^Ltriquita Mining Co. 214 V. Metropolitan Board of W. .354 r. Metropolitan Sewers C. 392 V. Middlesex 369 TABLE OP CASES. Ixxxix Regina v. Midland Counties R. Co. Ill, 709 r. Mtissoii 'MA V. Newcastle-upon-Tyne (j'.)ii V. Norfolk Commissioners 041 V. Nortli Midland K. Co. 358, 70u V. Norwich 070 r. Norwich Railway Co. 074 I'. Tayii 702 f. Pickles 077 V. Poole 702 V. Kcf;istrar 50 V. Revnolds 7r-) V. l{ij}l)y 42 i V. Roch.Iale & Halifax T. R. 7P2 I'. Rochester O'JB I', v^addlers' Co. 83, 215, 702 i;. Saffron- Walden R. Co. 414 V. St. Mar>,'aret3 708 V. St. niaves 717 V. St. Pancras 702 r. St. Peter's College 07'.) r. St. Saviour 678 V. Sharpe 424 V. Sheffield. Ashton-under-L , & M. R. Co. 717,718,71'.) V. Sheriff of Warwickshire 606 V South Holland D. C. 378, 720 V. Soutli Wales R. Co. 258 V. Southampton 074, 702 V. Southeastern Railway Co. 35'J, 418 V. Stamfonl 700 V. Swansea Harbor T. 378 V Thames & Isis C. 078 V. Townsend 712 V. Trustees of Luton R. 0'J3 V. United Kingdom E. T. Co. 422 V. Victoria Park Co. 166, 705, 713 1-. Watcrfonl Kailway Co. 251 V. West Midland R. Co. 701 V. Wilson 711 i: Wing 110 V. Woods & Forests C. 0'J4 I'. Worcestershire & Stafford 70'J V. York & North M. R. Co. 370, 507, 6'.t2, 701, 703 V. York, Newcastle, & B R. Co. 700 Reichwald v. Commercial Hotel Co. 76 Reisner v. Strong 283 1". Union Depot Co. 274, 297 Reitenbaugh c. Chester Valley R. Co. 244, 275, 270, 278 Removal Cases 455 Remshart v. Savannah & Cliarlestim R. Co. Rensch v. Chicago, Burlington, & Q. R. Co. Rensselaer & Saratoga R. Co., /;« re V. Davis Rensselaer & Washington P. R. Co. v Barton Renthrop i-. Bang Renwiek v. Davenport & Northwest- ern R. Co. 384 342 512. 513 201 103 25'.) 333 Renwiek f. New York Central R. Co. 501 Republican Valley R. Co. v. Arnold 288 r. Hayes 2'JO, MI Reuter v. Klectric Telegraph Co. 046 Revere v. Boston Cojjpur Co. 05 Rex r. Allgood 708 V. Amery 61 f. Archbishop of Canterbury G'J7 I'. Bagshaw 378 V. Bank of England 697. 707 V. Barker 673, 687 V. Bishop of Chester 675 r. Bishop of Ely 698, 709 V Bishop of London 075 r. Breton 709, 722 V. Cambridge 709 r. Clarke 725 V. Cockermouth Inclosure C. 711 V. Colchester 709 V. Coin St. Aldwins 78 r. Commissioners of N. O. 358 V. Dean Inclosure 675 V. Doncaster 70 !'. Faversham 69 V. Fell 717 V. Hertford 709 r. Highmore 722 V. Hostmen 707 V. Hungerford Market Co. 3G1, 362. 705 V. Jeyes 675 r. Justices of Kent 717 V. Kent 423 r. Kerrison 423 v. Kingston 676 V. Kirke 679 V. Lincoln's Inn 709 V. Lindsey 42^1 ?-. Liverpool & Manchester R. Co. 302 V. London Assurance Co. 708 V. Lowther 722 r. .Martin 58 V. May 69 i». Mayor of Liverpool 378 r. M'Kay 722 r. Medley 550 V. Merchant Tailors' Co. 707 r. Montacute 070 »'. .Morris 425 V. .Mott 122 r. Mousley 723 r. Norwich Roads T. 378 V. Nottingham Old W. 395, 007 r. Ouse BiMikC. 702 I'. Pagham 821 V. Proprietors of Birmingham C. 087 r. St. Catherine's D. Co. 705 V. St. Catlierine's Mall 709 V. Saimder* 717 V. Severn i Wve R. Co. 675. 713 V. Shelley ' 703 V. StalTofd 705 i: Stainforth .. Hudson River R. Co. 598 Scott r. Averv 446, 448 V. Clark' 721 V. Eagle Fire Co. 74 V. Liverpool 436 V. Lord Ebury 11 V. Morgan 670 V. Oakely ^ 36 r. Pequonnock National B. 152 V. St. Paul & Cliicago R. Co. 200 V. Wilmington & Raleigh R. Co. 485. 497 Scottish Northeastern R. Co. v. Stew- art 29, 37, 003, 691 Scovill V. Thayer 191 Scripture v. Francestown Soapstone Co. 112,152 Scudder v. Woodbridge 565, 667, 572 Sea, Fire, & L. A. S., In re. 169 Searle v. Lackawanna Railroad Co. 310 Searles v. Milwaukee & St. Paul R, Co. Seaton i-. Chicago, Rock L, & P. R. Co. Seaver v. Boston & Maine R. Co. Secombe v. Milwaukee & St. Paul R. Co. V. Railroad Co. Security Loan A. v. Lake Sedalia, Warsaw, & S. K. Co. v. Wil- kinson Sedilon v. Connell Seibert n. Missouri, Kansas, & T. R. Co. Seine v, St. Louis & Iron Mountain R. Co. Selma & Tennessee R. Co. v. Tipton 162, 187, Sclma Railroad Co. v. Anderson Seima, Rome, & D. R. Co. v. Gam- mage 296, V. Red wine Semmes v. Columbus Somple V. London & Birmingham R. Co. Seneca Railroad Co. v. Auburn & Rochester R. Co. 312, 319, Senior v. Metropolitan Railway Co. Serandat v. Saisse Serrell v. Derbyshire, Staffordshire, & W. J. R. Co. Severy v. Central Pacific R. Co. Sewall r. Boston Water Power Sewickley Seymour v. Maddox 501, V. Sturges.s Sliaber i-. St. Paul, Minneapolis, & M. R. Co. Shamokin Valley & P. R. Co. v. Ma- lone 107, Sliamokin Valley R. Co. v. Liver- more Shand v. Henderson Sliarp r. Great Western R. Co. Sharpe v. San Paulo Railway Co Sharrod v. London & Northwestern R. Co. 486, Shattuck V. Stoneham Branch R. Co. Shauk i". Northern Central R. Co. Shaw V. Boston & Worcester R. Co. V. Fisher 127, r. Holland r. Jewett V. Perkins V. Rowley V. Spencer Shears i-. Jacobs Shedd !'. Troy & Boston R. Co. Sheffield, Ashton-under-Lyne, & M. R. Co. V. Woodcock 8. 80, 113, 484 505 572. GOl 281 295 82 158 136 502 295 66, ,200 184 297 304 026 254 322 360 541 616 317 150 715 571 160 684 455 257 350 449 436, 454 647 287 558 587, 596 128 126 586 677 118 150 609 94 179 TABLE OF CASES. XCIU 274 520 494 110 301 Sheldon v. Hudson River R. Co. 471 I'. Minneapolis & St. Louis R. Co. SliellabarfTcr v. Cliicago, Rock I., & r. H Co. Sliepard r. Buffalo, New York, & E. U. Co. V Gillespie Shepardson v. Milwaukee & Beloit R. Co. Sherman v. Milwaukee, Lake Shore, & VV. R. Co. 282, 208, 316, 389 V. New York 437 V. New York Central R. Co. G47 V. Rochester & Syracuse R. Co. G4G, 655 V. St. Paul, Minneapolis, & M. R. Co. 273. 288 V. Vermont Central R. Co. 430 Shertz v. Imlianapolis, Blooniington, & \V. R. Co. 503 Sherwood v. St. Paul & Chicago R. C:<). 288, 3G2 Sliii)iey V. Mechanics' Bank 61)7 Shirley r. Ferrers 18, 34 Shoemaker'-. Goshen Turnpike Co. 200 Shoenberger v. Muihollan 285, 380 Shortridge v. Bosauquet 109 Shrewsbury v. North Staffordshire R Co. 16, 629 Shrewsbury & Birmingham R. Co. V. London & Northwestern R. Co. 27, Steigenberger r. dwr 15 Stein V. Indianapolis Building A. 5:1 Steimveg r. Frio K.iilway Co. 470 Ste[)hens c. De Medina 124 Stephenson r. Grand Trunk R. Co. 608 Stetson r. Ciiicago & Fvanston R. Co. .'117 I'. Faxon "20 Stevens c Paterson & Newark R. Co. 3o7 V. Rutland & Burlington R. Co. 193 Stevens v. South Devon R. Co. 07, 640, 668 Stewart's ICstate, /n re 221 Stewart r. Anglo-California Cold M. Co. 211 I'. Cauty 124, 120 r. Hamilton College 200 V. Raymond R.iilroad Co. 302, 380 Stiken)an c Dawson 190 Stiles ;•. Western Railroad Co. 430 Stilphin V. Smith 85 Stinson v. Chicago, St. Paul, &. M. R. Co. 280 Stock's Case 79 Stockbriilge r. West Stockbridge 2 Stockport, Timperley, & A R. Co., Jn re 3G0 Stockton & Copperopolis R. Co. v. Calgiani 280 Stockton & Darlington R. Co. v. Brown 241, 408 Stockton & Hartlepool R. Co. v. Leeds & Thirsk R. Co. 32 Stock well r. St. Louis Mercantile Co. 108 Stoddard c. Onondaga Amuial C. 57 Stodghill I'. Chicago, Burlington. &, Q R. Co. 312, 344 Stokes (■ Grissell 414 r. Lebanon & Sparta T. Co. 102 Stone V. Commercial Railway Co. 3-jO, .•>;0, 376 v. Fairbury, Pontiac, & N. R. Co. 317 Stoneham Branch R. Co. i-. Gould 104, 164, 174 Stoneman v. Atlantic & Pacific R. Co. 491 Storey v. Ashton 546 Stormfeltz r. Manor Turnpike Co. 242 Stoyi'stown Turnpike Co. c. Craver 70 Strafr(m, A'r /(fnVe 10'.) Stranahan c. Sea View R. Co. 410 Strang v. Bcloit & Madison R. Co. 28.j, 292 Strasbnrg Railway Co. v. Echternacht 30 Stratford & Moreton R. Co. c. Strat- ton 174,177 Straus I'. Eagle Insurance Co. 181, 015 Stra}' I'. Kussell 114 Stringer i\ Mount Pleasant & N. R. Co. 222 Stringham v. Oshkosh & Mississippi R. Co. 253 Strong, Ex parte 076 V. Ellsworth 11 Struthers r. Dunkirk, Warren, & P. R. Co. 317 Stuart V. London & Northwestern R. Co. P.0 Stubbs r. Lister 212 Stublev c. London & Northwestern R. Co. 697 Stucke I'. Milwaukee & Mississippi R. Co. 51.1 Sturges V. Knapp tJ27 XCVl TABLE OF CASES. Sturtevant v. Milwaukee, Watertown, & B. V. li. Co. 350 Sullivan v. J'hiladelphia & Reading R. Co. 513 V. Tuck 127 Suniniitt c. State 87 Sunbury & Erie R. Co. v. Hummel 30'J Susqueliannali Canal Co. v. Wriglit 236 Sussex County JM. ins. Co. v. Wood- ruff 477 Sutton V. Clark 321, G53 V. Louisville 275 r. Tatliam 124 Sutton First 1*. v. Cole 61 Sutton Harbor I. Co. v. Hitchins 3'.Jl Suydam v. Moore 487, 5U2 Swainson v. Northeastern Railway Co. 565 Swan V. Manchester & Lawrence R. Co. 08 V. North British A. Co. 11 Swansea Harbor T., In re 401 Swansea Vale Railroad Co. v. Budd 215 Swarthout r. Chicago & Northwest- ern R. Co. 475 Swartout V. New York Central & H. R. R. Co. 509 Swatara Railroad Co. v. Brune 189 Swayze v. New Jersey Midland R. Co. 271 Sweeney r. Central Pacific R. Co. 562 I'. Old Colony & Newport R. Co. 696 Sweet V. Buffalo, New York, & P. R. Co. 260 Sweny v. Smith 212 Swinnev v. Fort Wayne, Muncie, & C. R.'Co. 2S3, 309 Symonds v. Cincinnati 234, 271 Syracuse & Northern R. Co. i;. Alex- ander 318 Syracuse, Bingharaton, & N. Y. R. Co., In re 291 T. Taff-Vale Railway Co. v. Nixon 4.39 Taft 1-. Hartford Railroad Co. 208 Taggart v. West Maryland R. Co. 105, 172 Talmadge v. Rensselaer & Saratoga R. Co. 489 Tanner v. Tanner 148 Taput V. Detroit, Grand Haven, & M. R. Co. 220 Tar River Navigation Co. v. Neal 162 Tarbell v. Central Pacific R. Co. 85 Tarrant v. Webb 559, 571 Tate V. Missouri, Kansas, & T. R. Co. 317 i\ ( )hio & Mississippi R. Co. 326 Tattersall v. Grooto 446 Taunton r. Royal Insurance Co. 666 Taunton & South B. T. Co. v. Whit- ing 160 Tawney v. Lynn & Ely R. Co. 377 Tayler v. Great Indian Peninsula R. Co. 143 Taylor v. Chichester & Midhurst R. Co. 29, 37, 194 V. Clemson 237, 409 V. County Commissioners 282 V. Fletcher 181 t'. Gay 717 V. Griswold 71 V. Hughes no V. Merchants' Fire Ins Co. 202 V. New York & Long B. R. Co. 255 i". Pliila(lcl{)hia &. Reading R. Co. 665 r. Railroad Co. 596 V. St. Louis 321 V. Southeastern Railway Co. 469 Taylor & York N. M. R. Co., In re 380 Tebbutt r. Bristol & Exeter R. Co. 543 Tebo & Neoclio R. Co. v. Kingsherry 270 Tempest r. Kilner 106, 126 Tenney v. East Warren Lumber Co. 706 Tenny c. Tuttle 600 Terre Haute & Indianapolis R. Co V. Clark V. Jones V. McMurray V. Scott Terre Haute & Southeastern R. Co V. Rodel Terre Haute Railroad Co. v. Smith Terry v. Cape Fear Bank V. New York Central R. Co. Tew V. Harris Texas & New Orleans R. Co. v. Sutor 222 Texas & Pacific R. Co. v. Chapman 587 V. Kane Texas M. Railroad Co. v. Whitmore Thames Conservators v. Pimlico Rail way Co. Thames Haven D. & R. Co. v. Hall 74, 366 V. Rose 75, 77, 80 Thames Steamboat Co. v. Housatonic Railroad Co. 548 Thames Tunnel Co. v. Sheldon 178 Thaver v. New Bedford R. Co. 346 V. St. Louis, Alton, & T. H. R. Co. V. Vermont Central R. Co. 430, 431 Tliicknesse v. Lancaster Canal Co. 394, 705 Thigpen v. Mississippi Central R. Co. 173 Thomas r. Hannibal «Sb St. Joseph R. Co. V. Railroad Co. r. West Jersey R. Co. V. Winchester Thompson, Ex parte V. Charnock V. Chicago, Milwaukee, & St. P. R. Co. V. Grand Gulf R. Co. 297, 302 I'. Lambert 06 V. New Orle.ans & C. R. Co. 640 V. New York & II. R. Co. 242 684 491 655 316 383 622 196 488 400 660 560 342 523 532 635 267 650 677 446 556 TABLE OP CASES. XCVII Thompson i*. Thompson I'. West Somerset U. Co. Tliorington v. Uould Thorpe v. lluglies V. Rutland & Burlington R. Co. Thurnell v. Balbirnie Ticonio Water 1'. Co. v. Lang Tilleard, In re Tillett V. Cliaring Cross Bridge Co. Tillotson V. Hudson River R. Co. Tiison v. Warwick Gas-Ligiit Co. Tiinnions v. Central Ohio R. Co. Tinney v. Boston &, Albany R. Co. Tinsman v. Helvidere Delaware R. Co. Tippets I'. Wai] Lackawanna & Blooms- burjj R. Co. 301 Wagner v. Long Island R. Co. 344 Waiiiwrijjfbt v. Ramsden 303 Waitniaii, I'Jr parte 147 Wakefield v. Hosion & Maine R. Co. 285 V. Connecticut & Passumpsic R. R. Co. 586 Waldo V. Ciiicago, St. Paul, &F. R. Co. 289 V. Martin 025 Waldron v. Portland, Saco, & P. R. Co. 488 I'. Rensselaer & Saratoga R. Co. 487 Walker's Case 111 Walker. Ex parte 147, (L'9 V. Bartlett 11!), 131 I'. Boiling 507 V. Boston & Maine R. Co. 236, 270, 282, 330, 563 V. Chicago, Rock Island, &, P. R. Co. 383 V. Detroit Transit R. Co. 120, 003 V. Devereaux 50, 157 V. Eastern Counties R. Co. 228 r. Great Western U. Co. 553 V. London & Blackwall R. Co. 30'J, 376, 005 V. Milne 100 V. Mobile & Ohio R. Co. 173 r. Old Colony & N. R. Co. 272, 30'.) V. Southeastern Railway Co. 97 V. Ware, Hadhatn, & B. R. Co. 240 Wallace v. Loom is 46 t'. Townsend 158 Wallingford Manufacturing Co. v. Fox 11 Wallis V. St. Louis, Iron M., & S. R. Co. 491 Walstab v. Spottiswoode 13 Walter v. Holding 677 Waltham Bank v. Waltham 107 Walworth r. Brackctt 54 Wank'ss v. Northeastern R. Co. 597 Wansbcck Railway Co., In re 426 Warburton i». Great Western R. Co. 574 Ward V. Griswoldville Manufacturing Co. 102 V. Londesborough 13 r. Lowndes 680.094,700 V. Paducah & Memphis R. Co. 508 V. Southeastern Railway Co. 116 Warden v. Union Pacific R. Co. 624 Ware v. Grand Junction W. 65 V. Regent's Canal Co. 358, 400 Waring i^. Cheraw & Darlington R. Co. 367 V. Manchester & Sheffield, & L. R. Co. 4.39 Warner r. Baltimore &. Ohio R. Co. 508 V. C^alleiider 1'j6 i;. Erie Railway Co. 558 r. Mower 70 J,'. New York Central R. Co. 597 V. Sandusky, &,c. Railroad Co. 220 V. Western North ('. R. Co. 559 Warren r. Fitchburg Railr(jad Co. 589 V. Keokuk & Des Moines R. Co. 528, 532 I'. St. Paul & Pacific R. Co. 296, 297 V. State 329 Warren Railroad Co. v. State 418 Warring v. Williams 120 Washburn v. Milwaukee &. Lake W. R. Co. 285 Washer v. Allensvillc Turnpike Co. 155 Washington v. Baltimore & Ohio R. Co. 492, 496 Wasiiington & Baltimore T. R. t-. State 726 Washington Cemetery v. Prospect Park & C. I. R. Co. 318 Washington, Cincinnati, & St. L. R. Co. y. Switzer 286 Wasmer v. Delaware, Lackawanna, & W. R. Co. 637 Waterbury v. Hartford, Providence, & F. R. Co. 698 Waterford, Wexford, W., & D. R. Co. V. Dalbiac 174 V. Pidcock 183 Waterloo Presbyterian S. v. Auburn & Rochester R. Co. 43 Waterman v. Connecticut & Passump- sic R. R. Co. 314, 360 V. Troy & Greenfield R. Co. 205 Waters v. Moss 5(>2 I'. Quimby 552 Watkins v. Great Northern R. Co. 250, 348, 349 Watson t). Milwaukee & Madison R. Co. 273, 280, .302 V. New York Central R. Co. 283 V. New York, West S., & B. R. Co. 384 »•. Pittsburg & Connellsville R. Co. .■>02 V. Reid 2:50 Watts r. Porter 109 I- Salter 13, 14 V. Watts 130 Waukon Railroad Co. r. Dwyer 144 Webb V. Direct London .i P.'R. Co. 30, 228 V. Manchester & Leeds R. Co. 2.39, 240. 248. 377, 601 r. Portland & Kennebec R. Co. 589 TABLE OP CASES. Webber v. Eastern Railroad Co. 289 Wedgewood v. Chicago & Nortliwest- eni \i. Co. 560 Weeden v. Lake Erie & Mad R. R. Co. 205 Weger v. Pennsylvania Railroad Co. 558 Weld V. Southwestern Railway Co. 374, 413 Welland Railway Co. v. Berrie 166 Wellcome v. Leeds 581 Welles V. Cowles 107 Wells V. Howell 526 V. Somerset & Kennebec R. Co. 2o7 Welsch V. Hannibal & St. Joseph R. Co. 584 Welsh V. Chicago, Burlington, & Q. R. Co. 484 Welty V. Indianapolis & Vincennes R. Co. 509 Wentz V. Erie Railway Co. 98 Wert V. Crawfordsville Turnpike Co. 184 West V. Milwaukee, Lake Shore, & W. R. Co. 297 V. Railroad Co. 541 V. St. Louis, Vandalia, & T. H. R. Co. 539 West Branch Canal Co's Appeal 112 West Cornwall R. Co. v. Mowatt 153 West Jersey R. Co. v. Cape May & S. L. R. Co. 725 West London R. Co. v. London & Northwestern R. Co. 6-54 West Philadelphia Canal Co. v. Innes 180, 183 West River Bridge v. Dlx 263, 264, 268 Westchester Railroad v. Miles 101 Western & Atlantic R. Co. v. Jones 491 V. Mc.Cauley 605 Western Maryland R. Co. v. Owings 350 Western Pennsylvania R. Co. v. Hill 356 Western Railroad Co. v. Babcock 230 Western Union R. Co. v. Smith 414, 425 Western Union T. Co. v. American Union T. Co. 422 V. Burlington &. Southwestern R. Co. 422 V. Rich 422 Weston's Case 116 Weston V. Bennett 429 V. Foster 259 Westropp V. Solomon 122 Wetmore v. Story 323 Wevant v. Kew York & Harlem R. Co. 567 Weyer v. Milwaukee & Lake W. R. Co. 296 Whaalan i;. Mad River & Lake E. R. Co. 564, 572 Wheeler v. Rochester & Syracuse R. Co. 260, 308, 511 Wheeling, Pittsburg, & B. R. Co. v. Gonrley 220 Wheelock v. Moulton 12, 107 V. Young 248 Whitacre v. St. Paul & Sioux City R. Co. 297 Whitcomb i;. Vermont Central R. Co. 221, 313 White's Case 685 White r. Boston & Providence R. Co. 349 V. Brown 476 V. Charlotte & South Carolina R. Co. 271 V. Concord Railroad Co. 290, 512 V. Fitchburg Railroad Co. 287 V. Nashville v. Northwestern R. Co. 383 V. San Rafael & San Q. R. Co. 430 V. South Shore R. Co. 309 V. Vermont & Massachusetts R. Co. 121 White Mountains Railroad Co. v. East- man 78, 157, 163, 175 White River Bank, In re 710 White River T. Co. v. Vermont Cen- tral R. Co. 263, 265, 319 White Water V. R. Co. v. Quick 485 Wliitehouse v. Androscoggin Railroad Co. 305, 306 V. Fellowes 652 Whiteman v. Wilmington & Susque- hanna R. Co. 544 Whiteside v. United States 64 Whitfield V. Southeastern R. Co. 551, 613 V. Zellnor 428 Wliitford V. Laidler 643 Whitman v. Boston & Maine R. Co. 222, 227, 270, 284 Whitmarsh Township v. Philadelphia, G., & N. R. Co. 696 Whitney v. Atlantic & St. Lawrence R. Co. 515 Whittaker v. Boston & Maine R. Co. 590 Whittier v. Chicago, Milwaukee, & St. P. R. Co. 509, 528 )■. Portland & Kennebec R. Co. 313 Whitwell V. Warner 16, 602, 612 Wiggctt V. Fox 567, 573 Wiggin V. Freewill Baptist Society 69 Wight V. Shelby Railroad Co. 157, 185, 188 Wigmore v. Jay 555, 571 ' Wilcox V. Rome & Watertown R. Co. 589 Wilder V. Maine Central R. Co. 496, 508 Wiley V. Moor 120 V. West Jersey R. Co. 473 Wilkin V. St. Paul, Stillwater, & T. F. R. Co. 296 Wilkins v. Roebuck 609 Wilkinson v. Anglo-California Gold Co. 140 V. Lloyd 109, 113, 126 Willard i". Newbury 579 Willcocks, Ex parte 72, 78 Willey r. Southeastern Railway Co. 385 Williams i\ Androscoggin & Kenne- bec R. Co. 428 TABLE OF CASES. CI Williams v. Archer 126 V. Chester & Holyhead R. Co. 421) V. County Court 713 V. Great Western Railway Co. 80 V. Hartford & New Haven K. Co. 244 V. Jones 541, 705 i;. Michigan Bank 45 V. Michigan Central R. Co. 488, 490. 527 V. Natural Bridge V. R. Co. 320 V. New Albany iSt. Salem R. Co. 517 V. New Orleans, Mobile, & T. R. Co. 205 V. New York Central R. Co. 234, 31'.), :;21, 323, 325, 513 V. Northern Pacific R. Co. 492 V. Parker 208 V. Pigott 11 V. St. George's Harbor Co. 12, 32 V. South Wales R. Co. 377 I'. Western Union R. Co. 2G0 Willing V. Baltimore Railroad Co. 292 Wills V. Bridge 117, 120 V. Murray 70, 77 Willson V. Blackbird Creek M. Co. 335, 33ti Willyard v. Hamilton 300 Wilmes y. Minneapolis & Northwest- ern R. Co. 274 Wilmington & Manchester R. Co. i'. Saunders 61 Wilmington & Raleigh R. Co. v. Robe- son 171 Wilmington & Reading R. Co. v. High 295 V. Stauffer 272, 472 Wilmot V. Coventry 623 Wilsey v. Louisville & Nashville R. Co. Wilson I'. il'Una Insurance Co. i;. Anderson V. Cunningham 2 V. European & North A. R. Co. V. Goodman V. Keating V. Merry V. Miers V. Jtailroad Co. V. West Hartlepool II. & R. Co. 97 447 2 595 3G2 61G 155 602 614 494 611, 647 145 80 437 V. Wils Valley R. Co. V. Wilson V. York & Maryland L. R. Co. Winch v. Birkenhead, Lancashire, &. C. J. R. Co. 639 Winchester v. Mid-Hants Railway Co. 302, 380 Winchester & Potomac R. Co. i;. Washington 293 Winona & St. Peter R. Co. r. Den- man 273, 277 V. Waldron 270 Winter i-. Muscogee Railroad Co. Vx\ 194 Winterbottom v. Wright 649 Wisconsin Central R. Co. v. Cornell University 253 Witherell v. Milwaukee & St. Paul R. Co. 491 Witmer v. Schlatter 15 Witter V. Cross 411 Wolfe V. Covington & Lexington R. Co. 313, 319 Wolverhampton New W. Co. v. Hawksford 14. 158 Wonder v. Baltimore & Ohio R. Co. 672 Wood /-. Auburn & Kocliester R. Co. 008 V. Coosa & Chattooga River R. Co. 104 v. Duke of Argyll 16 r. Dunmier 167 I'. Epsom & Leatherhead R. Co. 376 V. McCann 626 V. North Staffordshire R. Co. 425 V. St. Louis, Kansas C, &, N. R. Co. 505 i;. Stourbridge Railway Co. 360 V. Vermont Central R. Co. 454 Wood Hydraulic M. Co. v. King 70 Woodfin v. Asheville Mutual Ins. Co. 86 Woodfolk y. Nashville & Chattanooga R. Co. 275 Woodman i\ Joiner 641 Woodruff r. Erie Railway Co. 03-5, 637 Woods V. Pittsburg, Cincinnati, & St. L. R. Co. 455 Woodstock r. Gallup 673,716 Woodworth v. St. Paul, Minneapolis, & M. R. Co. WooUey c Constant V. North London R. Co. Woolson V. Northern Railroad Co. Wooster v. Sugar River V. R. Co. Wootton's Estate Worcester & Nashua R. Co. i-. Hinds Worcester Turnpike r. Willard Works r. Junction Railroad Co. Wormwell r. Hailstone Worrall v. Judson Worsley v. South Devon R. Co. Wright I'. Coster V. Eawcett V. Gossett V. Indianapolis & Cincinnati R. Co. V. London & Northwestern R. Co. V. Midland Railway Co. V. New York Central R. Co. 658, 571 V. Petrle r. Scott J'. Warren V. Wilcox Wyandotte, Kansas Citv,& N. R. Co. r. Waldo ' 270, Wyatt >■. Groat Western R. Co. Wycombe Railway Co. v. Donning- ton Hospital 661 120 215 526 290, 302 304 174 160 ;«9 706 132 374 322 676 619 529 655 649 657, ,572 108 338 147 544 273 682 230 cu TABLE OF CASES. Wyman v. Eastern Railroad Co. 295 V. Lexiijgton & West C. K. Co. 28(), 400 V. Penobscot & Kennebec 11. Co. 521 Wynn v. Allard 592 11. Shropshire Union R. & C. Co. 6G8 Wynne v. Price 128, 132 Wynstaiiley v. Lee 351 Wyrley Navigation v. Bradley 314 Y. Yarborough v. Bank of England 543 Yates I'. Milwaukee 3.% York & Cumberland R. Co. v. Pratt 174 V. White 174 York & North M. R. Co. v. Milner 703 V. Regina 680, 690 Yorton v. Milwaukee, Lake Shore, & W. li. Co. 98 Young t). Harrison 300 V. New York Central R. Co. 638 V. Yarmouth 579 Zabriskie v. Cleveland, Columbus, & C. R. Co. 58, 70, 603, 608 V. Jersey City & Bergen R. Co. 330 Zack V. Pennsylvania R. Co. 278 Zeigler v. Soutli & North A. R. Co. 484, 505 Zimmer v. New York Central & H. R. R. Co. 585 Zimmerman v. Hannibal & St. Joseph R. Co. 588 V. Union Canal Co. 230, 300, 321 THE LAW OF EAILAVAyS. THE LAW OF RAILWAYS. ♦CHAPTER I. INTRODUCTION. 1. Origin of railways in England. 2. First built on one's own land, or by special license from tlie owner. 3. Questions in regard to private rail- ways. 4. Railways in America, public grants. 6. Use of steam power on railways. 6. The franchise of a railway not neces- sarily corporate, nor unassignable. § 1. 1. Although some of the Roman roads, like the Appian Way, were a somewhat near approach to the modern railway, being formed into a continuous plane surface, by moans of blocks of stone fitted closely together, yet they were, in the principle of construction and operation, essentially different from railways. The idea of a distinct track, for the wheels of carriages, does not seem to have been reduced to practice until late in the seventeenth century. In 1676, some account is given of the transportation of coals near Newcastle, upon the river Tyne, upon a very imperfect railway, by means of rude carriages, whose wheels ran upon some kind of rails of timber.^ About one hundred years afterwards, an iron railway is said to have been constructed and put in operation at the colliery near ShelTield. From this time they were put into very extensive use, for conveying coal, stone, and other like sub- stances, short distances, in order to reach navigable waters, and sometimes near the cities, where large quantities of stone were requisite for building purposes. * 2. These railways, built chiefly by the owners of coal-mines and stone-quarries, either upon their own land or by sjiccial license, called "■ way-leave," upon the land of others, had become 1 Roger North's Life of Lord Keeper North, ii. 281 ; Encyclopaedia Americana, art. Railway, x. 478. VOL. i.-l [*1, *2] 2 INTRODUCTION. [CHAP. I. numerous long before the application of steam power to railway transportation. 3. Some few questions in regard to the use of these railways, or tramways, at common law, have arisen in the English courts.^ But as no such railways exist in this country, it would scarcely be expected that we should here more than allude to such cases.^ *4. All railway? and other similar corporations in this country exist, or are presumed to have originally existed, by means of an express grant from the legislative power of the state or sovereignty.* 5. The first use of locomotive engines upon railways for pur- poses of general transportation does not date further back than October, 1829 ; and all the railways in this country, with one or two exceptions, have been built since that date.^ 2 Waif. Railw. 2 et seq.\ Hemingway v. Fernandes, 13 Sim. 228; Keppell V. Bailey, 2 Myl. & K. .517. 8 The principal points of those cases are: That such licenses are not limited to the use of the means of locomotion known at the date of the license, but may extend to such as afterwards come into use. Dand v. Kingscote, 2 Railw. Cas. 27; s. c. 6 M. & W. 174. To the use of steam- power, for instance. Bishop v. North, 3 Railw. Cas. 459; s. c 11 M. & W. 418. That this will not justify a grantee of a right to erect a railway for a special purpose to erect one for general purposes. Dand v. Kingscote, supra; Farrow v. Vansittart, 1 Railw. Cas. 602; Durham & Sunderland Railway Co. V. Walker, 3 Railw. Cas. 36; s. c 2 Q. B. 940. That if the railway is such as the company may lawfully make for purposes for which when made it may be lawfully used, mere intention to use for an unlawful purpose gives the reversioner no ground of complaint. Durham & Sunderland Railway Co. V. Walker, supra. That such way-leaves may exist by express contract, by presumption or prescription, from necessity, as accessory to other grants, and by acquiescence. Barnard v. Wallis, 2 Railw. Cas. 162; s. c. 1 Craig & P. 85; Monmouthshire Canal Co. v. Harford, 1 C. M. & R. 614. And that the proprietors are under certain obligations to keep road in repair, so as not to injure occupiers of adjoining lands, to pay tenant's damages, and sometimes to pay rent. Wilson v. Anderson, 1 Car. & K. 514; Waif. Railw. supra. * 2 Kent Com. 276, 277; Stockbridge v. West Stockbridge, 12 Mass. 400; Hagerstown Turnpike Co. v. Creeger, 5 Har. & J. 122; Greene v. Dennis, 6 Conn. 292, 302, per Hosmer, C. J. ; Franklin Bridge Co. v. Wood, 14 Ga. 80. But municipal authorities have assumed to grant a right to a private railway within the limits of the municipality. Wilson v. Cunningham, 3 Cal. 241. And see mfra, § 250. 6 The celebrated trial of locomotive engines on the Liverpool and Man- chester Railway, to determine the i-elative value of stationary and locomotive power, resulting in favor of the latter, was had in October, 1829. The [*3] § 1.] INTRODUCTION. 8 * G. There is nothing in the prerogative riglit of maintaining and operating a railway and taking tolls thereon which is neces- sarily of a corporate character, or which might not, with perfect pro])rlcty, belong to, or be exercised by, natural persons, or which in its nature may not be regarded as assignable.^ Quincy Railway, for the transportation of granite by horse power, was con- structed about two years before; but the Boston and Lowell Railway, one of the first railways in this country for purposes of general traffic, was not incor- porated until Juno, 1830. • Middlebury Bank v. Edgerton, 30 Vt. 182, per Bennett, J. PAUT I. THE LAW OF PRELIMINARY ASSOCIATIONS. TAPtT I. THE LAW OF PRELIMINARY ASSOCIATIONS. ♦CHAPTER XL PUBLIC RAILWAYS AS CORPORATIONS. — PRELIMINARY ASSOCIATIONS. SECTION I. Mode of institiiting Railivay Projects. 1 Subscribers' associations in England. 2. Subscribers bound by subsequent charter. 3. Issue and registry of scrip certificates. 4. Original subscriber liable to unregis- tered purchaser. 5. Holders of scrip entitled to registry. 6. Preliminary associations not common in this country. 7. Petitioners for incorporation file plans and surveys. 8. English statute of 1862. 9. Preliminary associations may be re- gistered. 10. Not now held responsible as part- ners in England. § 2. 1. The mode of institutino^ railway enterprises, in Enirland, is more formal t^nd essentially dillerent from that adopted in most of the American states. There the promoters usually associate under two provisional deeds, the one called a '' Subscribers' Agree- ment," and the other a " Subscription, or Parliamentary Contract," which are expected only to serve as the basis of a temporary organization till the charter is obtained. This is specifically and often in detail to some extent provided for, in the subscriber.s' agreement. A board of provisional directors is provided to carry forward the enterprise, whose powers arc defined in the sub- scribers' agreement or deed of association, and who.plication to parliament for the plaintiffs' company, if granted, it was conceded, would injuriously ali'ect the tolls upon another bridge not far distant. The proprietors of this bridge were opposing the plaintiffs' grant before the parliamentary com- mittee, with a view to secure some indemnity against such loss, to be specially provided for by the plaintiffs' act, upon condition that the plaintiffs should open their bridge for the public travel. The promoters of the plaintiffs' grant and the proprietors of the rival bridge had come to an agreement in regai'd to the extent of the indemnity, aud upon naming it to the committee, with a view to have it inserted in the act, one member of the committee objected to such course, as calculated to sanction improjier influences uj)on public legislation. The promoters of the new bridge then jn-o- Junction Railway Co., 7 Eng. L. & Eq. 124; s. c. 1 Sim. x. s. 58G; Edwards V. Grand Junction Railway Co., 1 Myl. & C G'jO. The cases in sup|iort of this general proposition aic very numerous, and will be more fully examined in the next section. ^ Edwards ;•. Grand Junction Railway Co. supra. ' Vauxhall Bridge Co. v. Earl Spencer, Jacob, 64. VOL. 1,-2 , [n7] 18 PRELIMINARY ASSOCIATIONS. [PART I. posed to the proprietors of the rival one to give them security for the proposed indemnity, by way of bond with surety, which should quiet their opposition, and the bill pass. This was acceded to and the securities given, and the bill passed accordingly. The opinion * of Lord Eldon is an affirmance of the decision of the Vice-Chan- cellor, retaining the bill till the matter should be tried at law.^ But the intimations of the Chancellor indicate certainly that he regarded the contract as perfectly valid, and the bill was after- wards dismissed by consent. Lord Eldon said : " In the view 1 take of the case, it will not be an obstacle to the plaintiffs that they do not come with clean hands, for it is settled, that if a trans- action be objectionable, on grounds of public policy, the parties to it may be relieved ; the relief not being given for their sake, but for the sake of tlie public. Tlius it is in the case of marriage brocage bonds. Tlie principle was much discussed in the case of Neville V. Wilkinson,'* where Mr. Neville being about to marry, inquiry was made by the lady's father to what extent he was indebted. Wilkinson, who was applied to at the desire of Neville, concealed the demand which he had against him ; after the marriage he attempted to recover it, and a bill was filed to restrain him. I remember arguing it with obstinacy, but Lord Thurlow thought that, having made a misrepresentation, a court of equity must hold him to it, and that, although the plaintiff was a j^articeps criminis ; so it was held in the case of Shirley v. Ferrers,'' in the Exchequer. 4. " It is argued that this was a fraud upon the legislature ; but I think it would be going a great way to say so, for non constat, if it had been pushed to the extent of taking the opinion of the House, that it might not have passed the bill in its former shape. It cannot be said that the agreement is contrary to legis- lative policy, because one member of the committee makes an olijcction, Avhich is not sanctioned or known by the House at large. Indeed, such things are constantly done, and with the knowledge of the House ; for they are in the habit of saying, with respect to these private acts, that though they will not of themselves pass them into laws, yet they will if the parties can agree ; and matters sometimes are permitted to stand over to give an opportunity of coming to a settlement. « Vauxhall Bridge Co. v. Earl Spencer, 2 Mad. 356. * 1 Br. C. C. 543. 6 Cited 11 Ves. 536. ri8] § 7.] CONTRACTS BETWEEN PROMOTERS AND OrPORERS. 19 5. " It is then said, that the money was to be paid out of the funds of the Vauxhall JJridge Company, which by the act were devoted to other purposes. The proprietors of Hattersea Bridcrsons, to whom tliey look for the payment of the bonds; and if the obhgors agree with the company to pay the bonds with their money, what have the obligees to do with that unless by ante- cedent contract ? They had no demand in law or equity against the company. If, then, the Vauxhall proprietors choose to sanc- tion what the legislature has not directed, namely, the indemnify- ing the persons who have become obligors in the bonds, that is one thing; if they have not, then the individual oflicers who have paid the money over in discharge of the bonds ought not to have paid it, and may now be called on to pay it back ; as between them and the company, the money must be considered as being still in their hands. If the transaction is to be considered merely as between the obligors and the obligees, the latter not refusing the money from whatever hands it came, but not entangling themselves in any contracts between the obligors and the company, then the obligees would not be affected by those contracts. But if so, still the case depends upon the validity of the bonds ; for I think the Vauxhall Bridge Company may with propriety say, if the money was paid in consequence of an arrangement for the discharge of the bonds, and if the bonds were bad, that then it may be called back. When the cause was heard by the Vice-Chancellor, he did that which he was not bound to do ; for he certainly had jurisdiction, and might have decided upon the validity of the bonds. But he directed that to be tried at law, where all the objections may be raised upon the pleadings in the same manner as here ; and considering that in matters of this nature, both courts of law and equity have jurisdic- tion exercised upon the same principles, I do not see any occasion to vary the decree." [•19] 20 PRELIMINARY ASSOCIATIONS. [PART I. SECTION VII. Contracts of the Promoters enforced in Equity. Case of Edwards v. Grand Junction Railway. § 8. 1. Edwards v. The Grand Junction Railway,^ is an appli- cation to a court of equity to enforce such a contract against a railway company, whose charter Mas obtained by means of the quieting opposition in parliament, in conformity to the contract. * The trustees of a turnpike road were opposing in parliament the grant to the defendants, unless their rights were guaranteed in such grant. The promoters of defendants' charter, and the trus- tees of the turnpike road, came to an agreement in regard to the proper indemnity to be inserted in the act, but to save delay it was secured by way of contract, on the part of the promoters, providing for a renewal of the covenants, on the part of the com- pany, in a brief time specified, after it should go into operation. The controversy in the present case was with reference to the widtii of a bridge, by which the railway proposed to convey the turnpike road over their track. The contract stipulated that such viaducts should be of the same width as the road at that point, which was fifty feet. The charter only required them to be of the width of fifteen feet, and the company having declined to assume the contract of the promoters, were proceeding to build the bridges thirty feet wide only. The bill prayed an injunction, which was granted by the Vice-Chancellor, and confirmed by the Chancellor, who held that an agreement to withdraw or withhold opposition to a bill in parliament is not illegal ; that a court of equity will enforce a contract founded upon such a consideration ; and that an incorporated company will be bound by the agree- ment of its individual meml)ers, acting, before incorporation, on its behalf, if the company had received the full benefit of the consideration, for which the agreement stipulated in its behalf. The opinion of the Lord Chancellor will best show the grounds of the decision. " But then the railway company contend that they, being now a corporation, arc not bound by anything which may have passed, or by any contract which may have been en- 1 1 Myl. & C. 650. [*20] § 8.] CONTRACTS ENFORCED IN EQUITY. 21 tcrcd into by the projectors of the company before their actual incorporation. 2. " If this proposition could be supported, it would be of ex- tensive consequence at tliis time, when so nuieh property becomes every year subjected to the power of the many incorporated com- panies. The objection rests upon grounds purely technical, and those applicable only to actions at law. It is said that the com- pany cannot be sued upon this contract, and that Moss entered into a contract, in his own name, to get the company, when incor- porated, to enter into the ])roposed contract. It cannot be denied, however, that the act of Moss was the act of the projectors of the railway ; it is, therefore, the agreement of the parties who were seeking an act of incorporation, that, when incorporated, certain things should * be done by them. But the question is, not whether there be any binding contract at law, but whether this court will permit the company to use their powers under the act in direct opposition to the arrangement made witii the trustees prior to the act, upon the faith of which they were permitted to obtain such powers. If the company and the projectors cannot be identified, still it is clear that the company have succeeded to, and arc now in possession of, all that the projectors had before ; they are entitled to all their rights, and subject to all their liabil- ities. If any one had individually projected such a scheme, and in prosecution of it had entered into arrangements, and then had sold and resigned all his interest in it to another, there would be no legal obligation between those who had dealt with the original projector and such purchaser ; but in this court it would be other- wise. So here, as the company stand in the place of the pro- jectors, they cannot repudiate any arrangements into which sucli projectors had entered. They cannot exercise the powers given by parliament to such projectors, in their corporate capacity, and at the same time refuse to comply with those terms, upon the faith of which all opposition to their obtaining such i)owors was withheld. The case of The East London Water Works Comjiany V. Bailey ,2 was cited to prove that, save in certain excepted cases, the agent of a corporation must, in order to bind the corporation, be authorized by a power of attorney ; but it does not therefore follow that corporations are not to be affected by equities, whether created by contract or otherwise, affecting those to whose position 2 4 Biiig. 283. [•21] 22 PRELIMINARY ASSOCIATIONS. [PART I. they succeed, and affecting rights and property over which they claim to exercise control. What right have the company to meddle with the road at all ? The powers under the act give them the right ; but before that right was so conferred, it had been agreed that the right should only be used in a particular manner. Can the company exercise the right without regard to such an agreement ? I am clearly of opinion that they cannot ; and having before expressed my opinion that the contract is sufficiently proved, it follows that the injunction granted by the Vice-Chancellor is in my opinion proper, and that this motion to dissolve it must be refused with costs." 3. " The case of The Vauxhall Bridge Company v. Earl Spen- cer,3 was cited for the trustees ; and it certainly is a strong authority in favor of their * claim ; Lord Eldon having in that case expressed an opinion, that the withdrawing opposition to a bill in parliament might be a good consideration for a contract, and having recognized the right of an incorporated company to connect itself with a contract made by the projectors of the com- pany, before the act of incorporation. On the other hand Dance V. Girdler,^ was cited for the railway company ; but that was an attempt to make a surety liable beyond his contract ; and Sir James Mansfield, in his judgment in that case, relied much upon the want of identity between the society with whom the contract was made and the corporation ; and the question there was as to a legal liability, not as to an equitable right. It was contended for the railway company that to enforce this equity would be unjust towards the shareholders of the company, who had no notice of the arrangement. To this two obvious answers may be made : first, that the court cannot recognize any party interested in the corporation, but must look to the rights and liabilities of the corporation itself ; and, secondly, that there is nothing in the effect of the injunction inconsistent with the provisions of the act ; for although the act provides that bridges shall not be less than fifteen feet in width, it does not provide that they shall not be made wider. The company might under this act clearly agree that this or any other bridge should be fifty feet wide." 8 2 Mad. 356, Jac. 64 (i Cond. Ch. Rep. 28). •• 1 N. R. 343. [,*22] § 9.] CONTRACTS OF PROMOTERS BIND THE COMPANY. 23 SECTION VIII. Contracts of the Promoters binding on the Company at Law. Case of Howden v. Simpson. § 9. 1. We have next in order of time the important case of Simpson v. Lord Howden,^ before the Master of the Rolls, and the Lord Chancellor on appeal, where it is held, that equity will not interfere to decree the surrender of an illegal contract, where the illegality appears upon the face of the contract, the remedy at law being adequate. We have then the same case, at law, before the Queen's Bcnch,^ and decided, on full argument, where it is held that a contract to pay Lord Howden £5,000, in consideration of * his withdrawing opposition to a bill for incorjiorating " The York & North Midland Railway Company," he being a peer in parliament, and owning estates in the vicinity of the proposed line, was illegal, being a fraud upon the legislature. This deci- sion was subsequently reversed in the Exchequer Chamber.^ The case being the leading case upon the subject, at law certainly, may require a more extended statement. The agreement under seal, between the plaintiff and defendant (the case now standing, Howden v. Simpson), recited that a company had been formed for making a railway ; that defendants were proprietors ; that a bill had been introduced into parliament, according to which the lino would pass through plaintiff's estates and near his mansion, and » 1 Railw. Cas. 32G; 1 Keen, 583; 3 Myl. & C. 97. 2 10 A. & E. 793. 8 The case was reversed mainly on the ground that the plea did not allege that the parties, at the time of entering into the contract, intended to keep it secret from the legislature. 10 A. & E. 793; 1 Railw. Cas. 317. Rut the Exchequer Chamber held that the agreement was prima fhcie valid, that tlie plaintift' was not bound to communicate to parliament the bargain lie had made with tlie company, and that a member could make any terms for the sale of his land, and compensation for injury to his comforts and property, which a private individual might make. That judgment was affirmed in the House of Lords, on full argument, before the Chancellor, Lord Lyndhukst, Lord RuouGHAM, the two cliief justices, and ten of the judges. 3 Railw. Cas. '2l»4; s. c. 9 CI. & F. 61. But Lord C.\mimum.l adhered to his former opinion that the contract should be held illegal, if it was an element that it should be kept secret, and not communicated to parliament. [*23J 24 PRELIMINARY ASSOCIATIONS. [PART I. that he was a dissentient, and opposed the passing of the bill ; that defendants had proposed that, if he would withdraw his opposition, and assent to the railway, they would endeavor to deviate the proposed line : and plaintiff agreed that, on condition of the stipulations in the agreement being performed, he did thereby withdraw his opposition and give his assent ; and defend- ants covenanted that in case the then bill should be passed in the then session, they would, in six months after it received the royal assent, pay plaintiff X5,000 as compensation for the damage which his residence and estates would sustain from the railway passing according to the deviated line, exclusive of and without prejudice to further compensation to plaintiff, in the event of the deviated line not being ultimately adopted, and without prejudice to such further compensation for any damage as in the agreement after mentioned. 2. Plaintiff declared in debt, and averred that he withdrew his opposition to the bill, which passed into a law in the then session, *that six months had since elapsed, but that defendants had not paid the X5,000. 3. Plea, that the railway, at the time of making the agreement, and according to the act, was intended to pass through the lands of divers individuals ; that the agreement was made privately and secretly by the parties thereto, without the consent or knowledge of the said individuals, and Avas concealed from them continually until the act was passed, and was not disclosed to, or known in parliament, and was concealed from the legislature during the passing of the act ; and that plaintiff at the time of passing the act and still was a peer of parliament. SECTION IX. What Contracts between the Promoters of Railways and Others will he enforced^ either in Law or Equity, against the Contract- ing Parties or the Company. 1. Contract to take land of opposing party. I n. 3. Otlier contracts which the courts 2. Contract prejudicial to the public. | will enforce. § 10. 1. Since the decison of Howden v. Simpson, in the Ex- chequer Chamber, and the House of Lords (1842), the English [*24] § 10.] WHAT CONTRACTS WILL BE ENFORCED. 25 courts seem to have acquiesced in the principles there establisliod, until a very recent period. Tiic validity of such a contract is recognized, in regard to the company purchasing the interest uf the lessee of lands near the line of the proposed railway. ^ And where the promoters of one railway entered into an agreement with a land-owner on the proposed line to take his land at a specified price (£20,000), by whicii lie was induced to withdraw opposition ; and the promoters of a rival line, who proposed also to pass through the same land, had petitioned for a charter, and the merits of the two i)rojects were, under the sanction of the committee of the House of Commons, referred to arbitration, and the solicitors of the two bills agreed that the adopted line sliould take the engagements entered into with the land-owners, by the rejected line, — it was held, that the second company prevailing, were bound, as a condition of entering upon the lands of plaintiff, to fullil the terms of the agreement of the first company .^ *2. And where one railway company was prohibited from open- ing their line for traffic, until they had built a branch railway connecting their line with that of another company, it was held, that a court of equity was bound to enforce the prohibition, on motion of the other company, though the probable result would be to cause inconvenience to the public, and not to benefit tlie other company."^ ^ Doo V. London & Croydon Railway Co., 1 Railw. Cas. 257; s. c. 3 Jur. 258. 2 Stanley v. Chester & Birkenhead Railway Co., 1 Railw. Cas. 58; 9 Sim. 264. ' Cromford Sc High Peak Railway Co. v. Stockport, Disloy & Whaley Bridge Railway Co., 24 Beav. 74; s. c. 29 Law T. 245. There are also other contracts which tlie courts will enforce. Thus in Low «;. Connecticut & Passunipsic Railroad Co., 45 N. H. 370; s. c. 1 Redf. Am. Railw. Cas. 1, where the question was as to the right of those who had ren- dered services in promoting the subscription to the stock of the corporation to compensation, after full discussion it was held that the corporation, having elected to take t!»e benefit of the services knowing that they were rendered with the understanding that compensation should be made, must take the benefit with the burden. This case, however, seems tti have proceeded on the authority of Hall o. Vermont & Massachusetts Railroad Co., 28 Vt. 401; and it may be doubted if the rule there adopted, charging to the corporation ser- vices rendered in effecting its organization, is not too lax and too su.sceptible to abuse, and if there should not be proof that the corporation promised to pay- So where a private company, having leased land with a clause for re-entry, [*2o] 26 PRELIMINARY ASSOCIATIONS. [PAET I. SECTION X. Courts of Equity will enforce Contracts with the Promoters^ 1. Dona fide contract not evasive of statute, valid. § 11. The English courts of equity do not hesitate to restrain railways from proceeding to take land under their compulsory powers, where the proprietor of the estates had surceased oppo- sition to the bill, by an arrangement with the projectors, by which they stipulated that the company should pay a certain sum, which it had declined to do. This was done, notwithstanding the proprietor was a peer of parliament, and notwithstanding the tender of an undertaking on the part of the company not to enter upon the land until the further order of the court, and not- withstanding the time, within which the company by their charter were authorized to take land, would have expired before the hearing of the cause.^ And although this case is questioned by some writers,^ the learned Lord Chancellor St. Leonards said the cases establish the proposition, that a bona fide contract of this sort, not evading the act of parliament, but enabling the com- pany to assist its views, and carry the act into effect, was valid, without reference to the reasonableness of the amount agreed to be paid.3 becomes incorporated by a charter expressly providing that all prior contracts shall be binding, the corporation may maintain ejectment. Loudon Dock Co. i;. Knebell, 2 Macl. & R. 60. But one railway company cannot bind itself to defray the expense of an application to parliament by another company for the establishment of another line expected incidentally to benefit the first company. Such a con- tract is beyond the powers of a railway company, and so illegal; and such a covenant cannot be enforced at law, however beneficial to the covenantor if carried out. I^ast Anglian Railway Co. v. Eastern Counties Railway Co., 11 C. B. 775; s. c 7 Eng. L. & Eq. 505; Macgregor v. Dover & Deal Railway Co., 18 Q. B. 618; s. c. 16 Q. B. 180; infra §§ 5G, 137. See infra § 12, note 3. See also infra § 13, note 2. 1 Petre v. Eastern Counties Railway Co., 1 Railw. Cas. 462. 2 Shelf. Railw. 400. 8 Ilawkes v. Eastern Counties Railway Co., 1 De G. M. & G. 737; 8. o. 15 Eng. L. & Eq. 358; s. c. before the Vice- Chancellor, 3 De G. & S. 314; 8. c. 4 Encr. L. & Eq. 91. [*25J § 12.] CONTRACTS ENFORCED IF RAILWAY ABANDONED. 27 ♦SECTION XI. Such Contracts enforced where the Railway is abandoned. 1. Wlicre a certain sum is to be paid to I 2. Merely provisional contracts not al- quiet opposition. I ways ent'orced. § 12. 1. It has sometimes been held, that an absolute agree- ment made, by the promoters of a railway, to j)ay one a certain * Sinn to quiet opposition, is valid, notwilhstandini^ the contem- plated work is never carried forward, and the injury to the opposcr, * which the contract of quietus assumes, is never sus- tained.^ But such a contract is certainly based upon a principle * of very questionable policy, and courts would more incline to give the contract, when consistent with the words used, such a * construction, that it shall be the purchase of a pecuniary inter- est, or indemnification for a pecuniary loss, which are legitimate * subjects of bargain and sale, than to regard it as the purchase of good-will, or the price of converting ill-will unto favor, which * are certainly not regarded ordinarily as the just basis of cou- tracts.2 * 2. But in many cases these provisional contracts have been enforced, notwithstanding the projected works have been aban- doned."^ * But where the contract is a mere arrangement to pur- » Bland r. Crowley, Railw. Cas. 75G; s. c. 6 Exch. 522. 2 Ganfe t'. Newmarket Railway Co., 18 Q. R. 457; s. c. 7 Railw. Cosk. 168; 8. c. 11 Eiig. L. & Eq. 57; I'orcher v. Gardner, U Jur. 4.3: 19 L. J. 63; 8 C. B. 4G1 ; Shelf. Railw. 402. See also Cumberland Valley Railway Co. r. Baab, Walts, 458; Hawkes v. Eastern Counties Railway Co., 1 I)e O. M. & G. 737; s. c. 3 De G. & S. 314; 7 Railw. Cas. 219; s. c. 4 Eng. L. & Eq. 91. But see Hodges Railw. IGi, where it is said to be settled that asfree- nients for the purcliase of lands and the withdrawal or witliholding of opjmsi- tion to a bill are not illegal. And see also Caj^per v. Lindsey, 3 II. E. Cas. 293; s. c. 14 Eng. L. & Eq. 9, where a contract in effect fdr the taking of land if desirable and for the quieting of opposition was assumed to be legal, and which, being thoroughly considered, ought perhaps to be taken as the final determination of the Engli.sh courts. * Shrewsbury & Birmingham Railway Co. v. London & Northwestern Rail- way Co., 3 Macn. & G. 70; s. c. 20 L. J. Ch. 90; s. c. 14 Jur. 921 ; 1 Eng. L. & Eq. 122; Ilawkea v. Eastern Counties Railway Co., 3 De G. & S. 314; 8. c. 20 L. J. 243; s. c. 4 Eng. L. & Eq. 91; Preston v. Liverpool, Manchester [*26-»34] 28 PRELIMINARY ASSOCIATIONS. [PART I. chase land at a specified price, for the purpose of building the * railway, and the quieting of opposition does not enter into the consideration, the company are not bound to pay over the money, * unless they enter upon some portion of the land, and under such circumstances an absolute covenant to pay the money, by the company, would be ultra vires and void.* & Newcastle-upon-Tyne Junction Railway Co., 1 Sim. n. s. 58G; 7 Railw. Cas. 1; 7 Eng. L. & Eq. 12i. In liawkes v. Eastern Counties Railway Co., 1 De G. M. & G. 737; s. c. 15 Eng. L. & Eq. 358; s. c. 3 De G. & S. 314; s. c. 4 Eng. L. & Eq. 91, it was considered that a railway company, having agreed to purchase an estate, although moved to do so for the quieting of opposition to a bill to enable it to extend a branch subsequently abandoned, was nevertheless bound to perform its agreement. See also Shelf. Railw. 400. The case of Hawkes v. Eastern Counties Railway Co. came before the Lord Chancellor, St. Leonards, on appeal from the Vice-Chancellor in 1852, when the entire subject of the legality of such contracts, as well as the propriety of decreeing specific performance, was discussed, and most of the cases reviewed and compared. The conclusion reached was that even where the company is not able to carry its project into full effect, but has abandoned it, it is never- theless bound specifically to perform; and that it is no objection to a decree, that it involves the necessity of paying the price of the land out of general funds raised for provisional purposes merely, with no view of ultimately pur- chasing land and building the road, nor that the land can be of no use to the company in present circumstances. One can scarcely fail to perceive that in this decision a principle, perhaps sound and just in some circumstances, is pushed quite to its limit. Damages at law might have been tlie more proper disposition of all interests concerned. The judgment was affirmed, however, in tlie House of Lords, 5 H. L. Cas. 331 ; s. c. 35 Eng. L. & Eq. 8, and ela- borate opinions delivered, by Lord Chancellor Cranworth, Lord Campbell, and Lord St. Leonards. The decision there was obviously put somewhat on the ground of the peculiar state of facts, — that it was a contract under the seal of an existing company, and not the contract of the projectors of a con- templated company merely; and that though the contract had re.spect to an extension of the existing line, by means of a branch line, which, as to the existing shareholders, the company had no right to construct, and even with the con.sent of the legislature could not construct, with funds of the existing company, yet nothing of that seemed to have been known to the other party. * Gage V. Xewmarket Railway Co., 18 Q. B. 457; s. c. 14 Eng. L. & Eq. 57. The views of Lord CAMPnELL in this case do not seem to be altogether reconcilable with those expressed by the Lord Chancellor, in Hawkes v. East- ern Coimties Railway Co., but they seem more consi.stent with the views lield in this country, upon analogous subjects, and may be expected to find more favor in the English courts when the pressure of circumstances shall be re- moved by lapse of time. See infra § IG, and notes. And see Edinburgh, Perth, & Dundee Railway Co. i'. Philip, 2 Macq. Ap. Cas. 514; s. c. 28 Law [*35, *36] §13.] PRACTICE IN DECREEING SPECIFIC PERFORMANCE. 29 * In an important casc^ before the House of Lords, the doctrine of the former cases is assumed to have established the ijr-] 30 PRELIMINARY ASSOCIATIONS. [PART I. questionable, upon the ground that things were required to be kept in a safe train, until the rights of the respective parties could be definitely determined.^ 2. But the practice of the English courts of equity, in regard to this subject, resting chiefly in discretion, as might be expected, is very variable, and the cases not easily reconcilable. In many cases, where the right of the plaintiff is doubtful, the injunction to stay the progress of the road till the contract was performed has been denied, and the party remitted to his rights in a court of law.2 The latter course would seem to be most consistent with * the ordinary proceedings of courts of equity, in applications for specific performance. 1 Great Western Railway Co. v. Birmingham & Oxford Junction Railway Co., 2 Phillips, 597. The remarks of Lord Chancellor Cotteniiam in this case strongly defend the practice of enforcing contracts made by the pro- jectors of railways against the company itself, after it comes into operation. 2 Webb V. Direct London & Portsmouth Railway Co., 1 De G. M. & G. 521; 8. c. 9 Eng. L. & Eq. 249. Vice-Chancellor Turxkk, Avhen the case was before him, seemed to regard the plaintiff as entitled to specific perform- ance, but the Lords Justices, on appeal, entertained no doubt that the party should be remitted to his rights in a court of law. See Preston v. Liverpool, Manchester & Newcastle Junction Railway Co., 1 Sim. n. s. 586; s. c. 7 Eng. L. & Eq. 124:. The Court of Appeal, in a similar case, Stuart v. London & Northwestern Railway Co., 1 De G. M. & G. 721; s. c. 7 Railw. Cas. 44; 11 Eng. L. & Eq. 112, put its refusal to decree specific performance on the ground, that the remedy, if any, was at law; and that there was no mutuality, as after the abandonment or material departures from the scheme, the railway could not hold the land to any beneficial purpose. Lord Chancellor St. Lkoxards seemed also to be of opinion that the only ground on which the decision, in AVebb v. London & Portsmouth Railway Co., 1 De G. M. & G. 521; s. c. 9 Eng. L. & Eq. 249, could be vindicated, was the want of mutu- ality. But it would seem, that all cases of this class where contracts have been made to take land, either at a given price per acre or for a gross sum, or to pay a sum of money for the damage to an estate in gross, should be re- garded as conditional, unless the contrary appears in express terms, or by the clearest implication. Any other view gives these contracts very much the air of wagering policies or legislative gambling. See also on this subject, Potts V Thames Haven Dock & Railway Co., 15 Jur. 1004; s. c. 7 Eng. L. & Eq. 202, where a query was suggested, whether a specific performance could be decreed, there having been no valuation of the land, and great delay on the part of the company, owing to pecuniary embarrassment; but, after discus- sion, it was agreed to give the company further time, and the claim was ordered to stand over. In Strasburg Railway Co. v. Echternacht, 21 Penn. St. 220, where several persons agreed that if the company should be incorporated with certain privi- [*39] § 14.] SPECIFIC PERFORMANCE IN COURTS OF EQUITY. 31 ♦SECTION XIII. Specific Performance in Courts of Equity. Object of courts to compel good faith when a ckfinite contract is made. § 14. But tlic courts of equity have been mainly influenced by what they esteem the pohcy of enforcing these parliamentary cun- tracts, * for the arrangement of conflicting interests, in regard to such projected railways. And they have declined to interfere by * injunction, where no such contract had been definitely made,' notwithstanding such representations on the part of the promo- ters as misled the agents of the land-owner. Thus showing, very explicitly, that the main ground upon which the English courts of equity have proceeded, in decreeing specific performance, and en- forcing it by injunction, has been to compel good faith on the part of such incorporations, in carrying into effect any contracts on their part. For it is said by the English courts, having obtained advantages in consequence of the contracts and assurances of the agents employed in the projects, it would tend to destroy all con- fidence in any such arrangement if they were not enforced, which would be of evil example and tend to great practical inconveni- ence. But where the parties stand upon their legal rights, as secured in the act of incorporation, a court of equity will not interfere.^ In a later case these * provisional contracts seem to loges, tliey would subscribe the number of shares set opposite tlieir nami^s respectively, and the charter was obtained with the privilecjes in question, but one of the subscribers refused to take the stock, it was held, that the promise was without consideration, and therefore not a contract, but a mere naked expression of intention, which equity ^YOuId not enforce by decree for specific performance, and that if it was a binding agreement it should be enforced at law. In Lindsay t;. Great Northern Railway Co., 10 Hare, 605; s. c. 10 Eng. L. & Eq. 87, the court decreed specific performance of a contract that trains should stop at a particular station, but gave the company time to nuake the necessary arrangements before making the decree absolute. In Ileathcote v. North Staffordshire Railway Co., 6 Railw. Cas. 358, it was held tliat a contract to make a railway is not one of which a Court of Equity will compel specific performance. ^ Hargreaves v. Lancaster & Prestt)n J. Railway Co., 1 Railw. Cas. -110. 2 Aldred v. North Midland Railway Co., 1 Railw. Cas. 404; Eton College V. Great Western Railway Co., 1 Railw. Cas. 200. Where the plaintiff had [*40-»43J 32 PRELIMINARY ASSOCIATIONS. [PART I. be regarded as conditional, depending, ordinarily, for their obli- gation, as against the corporation, upon their having done any- tliing under their charter which the agreement enabled them to do, so as thereby to have received the benefits of it.^ SECTION XIV. Courts of Equity may restrain a Party from Opposition or Peti- tion in Parliament. 1. Such cases not common in practice. | 2. Such cases not readily recognized. § 15. 1. It is held in the English courts of equity altogether competent and within their appropriate jurisdiction, to restrain a party from opposing a bill in parliament by petition, if a proper case is made out, and by parity of reason from pursuing a petition in favor of an act of parliament.^ But such cases are not com- mon in practice, * and dependent upon peculiar circumstances, as where proceedings in parliament are in violation of express covenants, or for some other reason in bad faith, and where dam- incurred expense in bringing the scheme of a proposed railway before the public, and in consideration thereof the promoters had agreed that the com- pany should pay him a certain sum at a certain point of its success, the con- tract was enforced although the company never went into full operation. Touche V. Met. Railway Co., Law Kep. G Ch. 671. 3 Gooday v. Colchester & Stour Valley Railway Co., 17 Beav. 132; s. c. 1-5 Eng. L. & Eq. 596. In this case, where it appeared that after the act was obtained nothing was done nor any step taken to construct the railway, the Master of tlie Rolls held that he could not say that the company had adopted the agreement, or was bound by its terms. In "Williams v. St. George's Harbor Co., 30 Law T. 84; s. c. 2 De G. & J. 547, it was held that an agreement entered into by the promoters of a company before incorporation is not binding on the company when incorporated, unless it subsequently does some act amounting to an adoption of it. This seems now to be the set- tled doctrine in the Ensrlish courts. See supra, § 3. 1 Stockton & Hartlepool Railway Co. v. Leeds & Thirsk Railway Co., 2 rhillips, 666; s. c 5 llailw. Cas. 691. In this case the injunction was granted by Vice-Chancellor Shadwell; but the order was di.scharged by Lord Chancellor Cotteniiam, on the ground that no proper case for the inter- ference of a court of equity was made out; but the jurisdiction was distinctly affirmed. And see lleathcote v. North Staffordshire Railway Co., 6 Railw. Cas. 358. [*44] §1G.] CONTRACTS AGAINST SOUND POLICY, 88 ages at law arc no adequate compensation. These cases are there- fore determined much upon the same grounds as other cases of specific performance, and come properly under consideration in this connection. 2. In one case, where the company had quieted opposition by inserting a clause in the act to enable them to buy land, which they had agreed to purchase as the price of quieting the opposi- tion, and afterwards applied for an act enabling them to abandon this branch, and repealing this clause, it was held, that, although the court had power to restrain an application to parliament, it was diOicult to conceive a case in which it would do so, and that it would not do so in this case.'^ SECTION XV. Contracts to icitJidraw opposition to Railway Projects, and to keep this secret, against Sound Policy, and u'ould seem to he illegal. 1. Principle of foregoing decisions ob- scure. 2. Not adopted in this country unless terms inserted in ch.irter. 8. Recent change of views in English courts. 8-5. Statement of late case in which priiuiiple of Edwards v. Grand Junction Kail way is doubted. G. Act of incorporation should not be varied by oral testimony. 7. Contracts to quiet opposition not fa- vored in tliis country. n. 1. Some English and American deci- sions. 8. Regarded as vhra vires. 9. May be enforced, if legislature not ex- posed to be misled. § 16. 1. The principle of the foregoing decisions, upon the sub- ject of specific performance of contracts with the promoters of railway projects being enforced in courts of equity against the company, is, to say the least of it, somewhat obscure. Regarded as illegal contracts, it does not seem very aj)])arcnt how they can with much show of consistency be specifically enforced in a court of equity. Ordinarily, such contracts are not the subject of an action for their enforcement, in any court. That there may be extreme cases, where one has gained an unconscionable advan- tage by enticing a * less-experienced person into participation in an illegal transaction, where a court of equity will compel the successful party to relinquish the fruits of the fraud, may be true. 2 Steele r. North Metropolitan Railway Co., Law Rep. 2 Ch. 237. VOL. I. — 3 {*^^'\ 34 PRELIMINARY ASSOCIATIONS. [PART 1. But the general proposition laid down by Lord Eldon upon this subject, in the Vauxhall Bridge case,^ does not seem to gain much support from the case cited by him.^ 2. It seems to us impossible to justify such contracts beyond the mere sale of a definite pecuniary interest. And even that, it would seem, should be secured by the insertion of definite provi- sions in the charter. We cannot find that any attempt has been made in this country to enforce against a corporation a contract made with the promoters to quiet opposition in the legislature. That it is often charged that such and similar contracts are made by the promoters of railway projects with the friends of rival projects, and other opposers, and with the members of the legis- lature even, and large sums of money disbursed in fulfilment of such contracts, which are expected to be refunded by the com- pany, and which are so refunded sometimes, is undeniable. But, we apprehend, there is in this country but one opinion in regard to the legality and decency of such contracts, and that those who expect to profit by them have far too much sagacity to trust their redress to the judicial tribunals of the country. But that turn- pike and bridge companies, and existing railways, whose profits are to be seriously affected by the establishment of new railways, and land-owners, whose property is to be affected by such rail- ways, may properly stipulate for reasonable indemnity, as the price of withdrawing opposition, there can be, we apprehend, no question. But it seems to us that the only proper mode of securing this indemnity is, by the insertion of special clauses in the charter of the new company. There can be no question in regard to the duty of courts of equity, in a proper case * for their interference, to enforce an indemnity secured by the act.^ ^ Supra, § 7; Jacob, 64. 2 Neville v. Wilkinson, 1 Bro. C. C. 543. The principle of this case is familiar. It holds, that one who has represented to a creditor of his debtor, or to the father of the intended wife of his debtor, that his debt does not exceed a specified sum, shall not be allowed to enforce a debt for a larger sum, the marriage having taken place in confidence of such representation. In this case the representation was made, indeed, by connivance between the husband and his creditor, to deceive his wife's father. But so far as the creditor is concerned, the decision seems to rest on the familiar principle of an estoppel in pais. Shirley v. Ferrers, cited in St. John v. St. John, 11 Vesey, 536. 8 Gray v. Liverpool & Bury Railway Co., 9 Bear. 391; s. c. 4 Railw. Cas. 35 ; supra, § 11. [*46] § 10.] CONTRACTS AGAINST SOUND POLICY. 35 3. Wc infer from the late decision of the House of Lords ujjon this subject, that the views of the courts, in that country, arc already undergoing some change in relation to it. In the case of Caledonian and Dumbartonshire Junction Railway v. Helens- burgh Harbor Trustees,* the facts were tiuit the magistrates of Helensburgh agreed with the provisional committee of a projected railway company to allow the company certain privileges of taking land in the town, and laying rails for a side track to the harbor of H., the company to pay all the expenses of enlarging the har- bor, and of obtaining an act of parliament for that purpose. The Harbor Act was obtained, and also the Railway Act. In the latter there was no provision authorizing, or referring to, the previous agreement, and the railway company refused to perform their part, and did not claim performance of the other part. 4. On a bill for specific performance, brought by the harbor trustees, held, reversing the decision of the Court of Session, that specific performance could not be decreed, because the railway company had ho power to make a harbor, which would be entirely beside the object of their incorporation. 5. It is said by the Lord Chancellor, and by Lord Brougham, " It seems that Edwards v. Grand Junction Railway Co., 1 Railw. Cas. 173, and Lord Petre v. Eastern Counties Railway Co., Id. 462, and other similar cases, which have followed them, are un- supported in principle, but these cases are distinguished from the present by the nature of the contracts sought to be enforced, which were matters within the scope of the respective charters. Tiie custom sometimes adopted by committees in parliament of omitting special clauses from acts of incorporation, on the agree- ment of the promoters that the objects proposed to be attained by these clauses should be carried out, appears to be illegal, and improper." 6. It seems very obvious, that, if these clauses can bo foisted into the act of incorporation, by oral testimony, at the will of interested parties, it is exposing the operation of the act to all the inconveniences and inconsistencies which might be expected to * follow from subjecting written contracts to the same mode of exposition. Sound views and true policy seem to us to require a strict adherence to the act of the legislature, as in other cases. * Before the House of Lords in June, 1856; s. C 2 Macq. Ap. Caa. 391; 8. c. 39 Eng. L. & Eq. 28. [•47] 36 PRELIMINARY ASSOCIATIONS. [PART I. 7. And it is very questionable, whether, in this country, the contract to sell a definite pecuniary interest — as land which is required for the construction of the road, or turnpike and canal property, the value of which is to be seriously affected by the railway going into operation — at a price agreed, made with the promoters of the railway, but not inserted in the act, and which is not unreasonable, can be enforced against the company. It is certain, we think, that a contract going altogether beyond this, and stipulating large sums, beyond the supposed value of any pecuniary interest to be secured, and for the obvious purpose of quieting opposition or securing favor and support, could not be enforced here, even against the contracting parties, and much less against the company, or at all events that it ought not to be.5 ^ In the more recent cases little countenance is given to the doctrine of the earlier English cases, which held the contracts of the promoters of railwaj-s binding on the company, on the slightest grounds of adoption, and often by the most forced constructions. In Preston v. Liverpool, INIanchester, &c. Railway Co., 5 H. L. Cas. 605; s. c. 35 Eng. L. & Eq. 92, although the case is professedly decided on the construction of the particular contract, it is not difficult to perceive, in the very sensible reasons assigned for the construction adopted, a manifest disposition to abandon tlie former ground assumed by the courts. See Edinburgh, Perth, & Dundee Railway Co. v. Philip, 2 Macq. Ap. Cas. 514; s. c. 39 Eng. L. & Eq. 41. In Aldham v. Brown, 2 El. & El. 398, the extent of the responsibility of a subscriber to the preliminary association is much discu.jsed, with a result which may be briefly stated as amounting to nothing more than that such subscriber is responsible for his ratable proportion of the provisional expenses, whether the scheme is finally abandoned or not. In Li re Aberystwith Railway Co., 7 Jur. n. s. 510, where a deposit of eight per cent on the estimated cost of a railway was paid into court, in com- pliance with the parliamentary orders, upon filing petitions for certain rail- ways, it was held that the proportion of such deposit would be paid out of court to the party duly representing the petitioners, on any of the railway projects being abandoned. But on the question being brought to the attention of the Lords Justices (id. 564), it was doubted whether the statute allowed the money to be repaid merely on the withdrawal of the petition, and no order was made. But upon principle it would seem that there could be no differ- ence between the case named specifically in the statute for repayment of the money, that of withdrawal of the petition, and such as denial of the petition or refusal to allow the party to proceed. See In re Dartmouth & Torbay Railway Co., 9 Weekly Rep. 609. It is no objection that the requisite parlia- mentary deposit is made from borrowed funds. Scott v. Oakely, 10 Jur. N. 8. 431, 648. And a court of equity will enforce any agreement made with the [*47] § 16.] CONTRACTS AGAINST SOUND POLICY. 87 *8. In an English casc,^ decided in tlie Excliequor C'liambor, reversing the decision of the Court of Exchequer, it \v:is lield, that a contract by the coini)any to pay £2,000 to a land-owner, * who op])Oscd the company in obtaining parliamentary powers for extending their line, for the injury he had or might sustain in respect of the preservation of the game on his estate, by reason of the ])roi)Osed extension, was ^iltra vires and did not bind the company, the covenant being absolute and not de- pending on the building of the railway, and the funds of the company being both by the original and the new act ai)propriated to specific purposes which did not include the consideration of this contract. 9. There is an American case,'^ where it was held, that an indemnity secured by a railway company to an individual, to quiet lender to compel tlio repayment of such deposit. lb. But an agreement by an existing railway to contribute towards the deposit required to promote the grant of other lines, is held ultra vires. So also is an agreement by an exist- ing railway to take shares in the projected company, or to establish traffic regulations with reference to future extensions. But such an agreement will not be ultra vires where its validity is expressly made dependent upon the sanction of parliament. Maunsell v. I\Iidland Great Western Railway Co., 1 Ilemm. & M. l;]0; .^. c. 9 Jur. n. s. GOO. See Scottish North Eastern Rail- way Co. I'. Stewart, 3 Macq. Ap. Cas. 382. But where the company stipulates to do acts ultra vires, there is no implication of a condition that the company shall have or shall be^able to obtain legislative authority to do them; and if the acts so stipulated to be done are component parts of an entire agreement em- bracing other matters within the powers of the company, an injunction will be granted against carrying any portion of the agreement into effect, llaltersley V. Shelburne, 7 Law T. N. s. 650. Where six different lines of railway, form- ing one general scheme, were promoted by the same persons, but subsequently four of them were abandoned, and an act obtained authorizing the construction of the other two, by which it was provided that the expenses, costs, and charges of obtaining and passing the act, and incidental and preparatory thereto, .should be paid by the incorporated company, it was held that the costs and expenses coiuiected with the abandoned lines were proixjrly rliargeable on the company. In re Tilleard, 32 Beav. 476; s. c. 9 Jur. n. s. 1217. * Taylor v. Chester & Midhiust Railway Co., Law Rep. 2 Exch. 3."j6. WiLLKS and Blackburx, JJ., dissenting. This judgment was reversed in the House of Lords, and judgment rendered for the jtlaintiff. Law Rep. 4 H. L. G28. But the doctrine of tlie Exchequer Chamber is more in con- formity with the Amorioan cases than that of the House of Lords. Supra, § 12, note 4. ' Low V. Connecticut & Passumpsic Railway Co., 46 N. H. 284; s. c. 45 id. 370, 1 Redf. Am. Railw. Cas. 1; supra, § 13, note 2. [*48, MO] 38 PRELIMINARY ASSOCIATIONS. [PART I. opposition before the legislature, for the mere purpose of protect- ing a private interest, and tlie party is thereby induced to forego his opposition, — that the indemnity will be enforced, unless the case presented an instance where the legislature was thereby exposed to be misled, and to do what it otherwise would not have done. [*49] PART II. THE LAW OF CORPORATIONS. PAUT II. THE LAW OF CORPORATIONS. ♦CHAPTER III. RAILWAYS AS CORPORATIONS. SECTION I. Origin and Different Classes of Corporations. 1. Tlie existence of corporations is of early date. 2. The different kinds of corporations. Sole and aggregate. 3. Tliis worli treats cliiefly of aggregate joint-stock corporations. 4. Corporations are either ecclesiastical or lay. 6. So they are divided into eleemosynary and civil corporations. 6. Corporations are public or private. 7. Private corporations, where stock is private property. 8. Public corporations, where stock is owned and the management re- tained by the state. 9. It does not affect tlie private charac- ter of a corporation that tlie state or the United States own a portion of the stock. 10. Distinction between corporations and partnerships. The latter dtfined. 11. Further definition of the distinction between corporations and partner- ships. § 17. 1. The idea of corporate action, i. c. by means of mere legal entities, or creations of the law, seems to have e.xistctl from a very early day in the history of civilization. They seem to have been allowed by the laws of Solon, and by those of the Twelve Tables ; and may very probably have existed at a still earlier period.^ 2. There have existed various kinds of corporations, distin- guished sometimes by the form of the association or the nature of the organization, and sometimes by the character of the work to ^ 1 Kent Com. 524. The Eighth Table allowed societies or private com- panies to make their own by-law.s, if not inconsistent with the public law. See also 2 Kent Com. 208, note; Dig. Rom. Civ. Law, 47, 22, 4. [•50] 42 RAILWAYS AS CORPORATIONS. [PART II. which the corporate body was devoted. Thus corporations, in the English law, are either sole or aggregate. By the former is under- stood corporations existing in a single individual, as the rector of a church, or the judge of a particular court, as the judge of probate, in whose name securities are taken and to be prosecuted, or any other official name, as the treasurer of a town, county, &c., in all which cases the single individual, maintaining for the time the particular official relation, constitutes the quasi corporation. Aggregate corporations are where the body consists of more than * one member, whether such members are shareholders, as in the case of a mere business corporation, or are composed of different subdivisions of the entire corporation ; as the mayor, aldermen, and common council of a city or other municipality .^ 3. The corporations with which we are chiefly concerned, and which will be mainly considered in the following work, are aggre- gate business corporations, with a joint-stock capital, such as banks, railways, manufacturing and other similar organizations. 4. But, as almost all kinds of corporations have in some sense analogous powers and functions, it will not be practicable to dis- cuss the law applicable to one class without at the same time, to some extent, considering the law applicable to all other classes of corporations. It may be proper therefore to mention here, that aggregate corporations may be ecclesiastical or lay, i. e. their functions may have reference exclusively to religious matters, as a parish or church, whereby they are appropriately designated as ecclesiastical or religious bodies ; or they may have reference only to secular matters, whereby they are more appropriately denomi- nated lay corporations. The distinction is, however, sometimes not easily determined, since the business and functions of a cor- poration may approach so nearly the one or the other as not in- appropriately to be classed among either. Thus the English Universities of Oxford and Cambridge are now regarded as merely lay or civil corporations, although at one time they were with propriety classed among ecclesiastical corporations.^ * 5. Corporations, too, are divided into eleemosynary, or such as disburse only charity and subsist for that purpose only, — such as ^ Co. Litt. 8 J, 250 a; 2 Kent Com. 273, 274. The nature of sole corpora- tions is not discussed here, as very few exist in this country, and those by statutes by which the rules of succession are expressly defined. • Angell & Ames Corp., § 40; 1 Bl. Com. 471. [*61, *52] § 17.] ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 43 schools, colleges, and hospitals, — and those which arc of a busi- ness or pecuniary character, called civil or j)olitical bodies, intrusted with certain rights or duties, and rcfjuired to perform certain functions, more or less connected with the polity of the state or nation, — such as towns, counties, school districts, or railways, banks, and manufacturing, or merely business corporations. 6. Corporations are either public or private. Public corpora- tions embrace all the municipal subdivisions of the state ; such as counties, towns, and cities, and school districts, and other similar organizations. Private corporations include all aggregate joint- stock incorporated companies, whose capital stock is owned by private persons. But such joint-stock corporations as possess no shares not owned by the state or nation are also regarded as public corporations, the same as the municipalities of the state. The law in regard to railways was thus stated in the former edition of this work. 7. Railways* in this country, although common carriers of freight and passengers, and in some sense regarded as i)ublic works, are ordinarily private corporations.^ By private corpora- tions nothing more is implied, than that the stock is owned by private persons. 8. If the stock is owned exclusively by the state, the corpora- tion is a public one. And such public corporations arc under the control of the legislature, the same as municipal corporations, and ordinarily acquire no such vested rights of property as are beyond the control of legislative authority.^ The American cases going * to confirm this proposition, and to show that railways are private corporations, are numerous.'^ * The charter may be to a single person as well as to an aggregation of persons; and the same rights, duties, and liabilities result from the grant, in the one case as in the other. 6 Supra § 1, pi. G. « Dartmouth College v. Woodward, 4 Wheat. 518, 568; 2 Kent Com. (7th ed.) 275, and notes. If the question were entirely new, it might be regarded as admitting of some doubt, perhaps, how far the American states could with propriety undertake such extensive public works, whose benefit enures almost exclusively to private emolument and advantage. But the practice is now pretty firmly established. And moreover there seems to be no proper tribunal to determine such questions between the states and the citizens. ^ Donnaher v. Mississippi, 8 Sm. & M. G19, 601. By the court, in Water- loo Pre.sbyterian Society 'r. Auburn & Rochester Railway Co., 3 Hill, 570; Dartmouth College v. Woodward, 1 N. II. Ill, 116; Eustis v. Parker, 1 N. H. [*53] 44 RAILWAYS AS CORPORATIONS. [PART II. * 9. It docs not alter the character of a private corporation, that the state or the United States own a portion of the stock.^ (a) * But a turnpike company or other corporation, managed exclu- sively by state officers, and at the expense and for the benefit of the state at large, is a public corporation.^ 10. The legal distinction between a corporation and a copart- nership is marked and important. A mere partnership is the result of voluntary association between two or more persons, to invest their capital and labor in the joint conduct of any business, mercantile or otherwise, either for a definite or indefinite time, according to the terms of the organic contract. This contract may be in writing or merely oral, and requires no legislative sanction to give it validity.^'' The result of such an association is to create a joint interest both in the capital and the business, unless there is some special stipulation as to the property remaining in those of the partners who furnish the capital. The several partners also become responsible for all the debts and legitimate contracts of the partnership ; unless in special and limited partnerships, where, under certain conditions, the special partners are not liable for the partnership contracts beyond the amount of the capital invested by thcm.^^ 273; Dearborn v. Boston, Concord & Montreal Railway Co., 4 Fost. N. II. 179, 100; Ohio, &c. Railroad Co. v. Ridge, 5 Blackf. 78; Bonaparte v. Camden & Arnboy Railroad Co., 1 Bald. 205, 222; Bundle v. Delaware & Raritan Canal Co., 1 Wal. Jr. 275; Raleigh & Gaston Railroad Co. v. Davis, 2 Dev. & Bat. 451; Thorpe v. Rutland & Burlington Railroad Co., 27 Vt. 140; s. c 1 Redf. Am. Railw. Cas. 587. This last case discusses the right of legishitive control over private corporations whose functions are essentially public, like those of banks and railways. 8 United States Bank v. Planters' Bank, 9 Wheat. 904; Miners' Bank v. United States, 1 Greene, Iowa, 553; Turnpike Co. v. Wallace, 8 Watts, 316; Bardstown & Louisville Railroad Co. v. Metcalfe, 4 Met. Ky. 199. 9 Sayre v. Nortli Western Turnpike Co. , 10 Leigh, 451. But see Toledo Bank v. Bond, 1 Ohio State, C22, 657. Opinion of Storiis, J., in Bradley v. New York & Xcw Haven Railway Co., 21 Conn. 294, 304, 305. " Story Part. §§ 2, 3, and cases cited. " Coope V. Eyre, 1 H. Bl. 37, 48, where Lord Chief Justice Lough- borough defines a partnership to be a .sharing both in profit and loss, and eays tiiat limited partnerships are not allowed in England, although upheld on the Continent. But the law is now otherwise by special statute both in (a) IMarshall v. Western Railroad pert, 22 W. Va. 282. See infra, § 176, Co., 92 N. C. 322; Moore v. Schop- note 1. [*54, *55] §17^.] now CORPORATIONS ARE CREATED. 11 . Bill <1k' orpcanization of a corporation is essentially difTorcnt. The individual members or corporators arc not resjionsilde, cxcefjt by special statute, and tliat is an anomaly, for any of tbe acts of the corporation. The corporators are, so to speak, mer;_a'd in the abstract being created by the act of incorporation, and can do no act bindinuc the corporation except in accordance with the orf;:anic law by which this artificial being is created. And the corpoi-alion receives its powers and functions solely from the act of incorpora- tion ; and this act must, in all cases, emanate, either directly or indirectly, from the legislative power of the state or nation, and cannot be created by any mere contract among the members, as- in the case of copartnerships. These principles are so elementary and fundamental to the very existence of corporations as scarcely to require to be stated, much less to be fortified by authoiity.^^ SECTION II. IIoiv Corjiorations are created. Corporations created by grant of the sovereignty. Tliis may he proved, l)y implication or by presumption. Tlie sovereignty may establisli corpo- rations by general act, or delega- tion or pro(;uration. Different forms of defining a corpora- tion. 4. Tlie corporate action of corporations restricteil to stale creating tliiiii. 5. It may act by its directors ami igents in other states. n. 10. But cannot properly transfer its entire business to anoilicr state. 0. A college located at one jilace cannot establish a branch at another. § 17 a. 1. Strictly speaking, corporations can only be created by the authority of the sovereignty, cither state or national.' («) EnG^land and in America. But, independent of statute, all Uie partners are respon.sihio for all the liabilities of the concern. Angell & Ames Corp., § 11 et sr/f., and cases cited. '" Ant^ell & Ames Corp., § oOl el seq. The members of a joint stock com- pany, however numerous, are liable as partners, unless the company is incor- porated. "Williams v. Michigan Bank, 7 Wend. 5:59, 5I'J. ^ The federal sovereignty being limited by the Constitution to jwwenj expressly conferred and powers necessary to their exercise, and no power to (n) Tt is a power which belongs to the Constitution. Chenango Bank p. the legislature unless taken away by Biown, 20 N. Y. 4G7. [*55] 46 RAILWAYS AS CORPORATIONS. [PART II. Hence, the ordinary mode of creating joint-stock business cor- porations is by charter, by way of legislative act of the several states. But as, in some cases, the record of such charters may not hayc been preserved, and, in other cases, the grant of cor- porate powers * may have been by way of implication rather than express legislative act, the courts have allowed corporations to prove their corporate character and capacity, by evidence that such character and capacity is reasonably, or necessarily, implied from other legislative action ; ^ or else, that its existence is fairly to be presumed from the long continuance of its unquestioned exercise.^ 2. The legislature may create corporations by general acts of incorporation, as they are called, whereby a given number of per- sons, by forming an association in a prescribed form, shall become possessed of corporate powers, for certain defined objects and purposes. (6) This is common, in many of the states, as to eccle- siastical and charitable, or benevolent associations, and not unfre- quently as to banking, railway, and other business corporations. And although at one time questioned, it seems now conceded that the sovereign authority may grant to any one the power to erect corporations to an indefinite extent, upon the maxim : Qui facit per aliumfacit per se. This power is given to the Chancellor of the University of Oxford,* and exists in many other forms, (c) 3. A corporation is defined by Lord Holt, C. J.,^ as an ens civile, a corpus politicum, a persona poUtica, a collegium, an univer- create corporations being expressly given, the Supreme Court held at an early day that Congress could charter such corporations only as might fairly be considered necessary to the exercise of its various powers and functions. McCulloch 1'. Maryland, 4 Wheat. 316; Osborn v. United States Bank, 9 Wheat. 733. 2 Conservators of the Tone v. Ash, 10 B. & Cr. 349. 8 Dillingham v. Snow, 5 Mass. 547; 2 Kent Com. 277; 1 Bl. Com. 473. * 1 Bl. Com. 474. 6 Anonymous, 3 Salk. 102. (b) The constitutions of some of way County v. Foster, 93 U. S. 570; the states contain restrictions upon Wallace v. Loomis, 97 U. S. 146. the exercise of this power, as by for- (c) But this nmst be taken with bidding the granting of charters by the qualification that the power to special act. See San Francisco v. make laws cannot be delegated. See Spring Valley Water AVorks, 48 Cal. Coolcy Const. Lim. 116. But see In 493; St. Paul Fire Insurance Co. v. re Deveaux, 54 Ga. 673. Allis, 24 Minn. 75. See also Calla- 1*562 § 17 a.] HOW CORPORATIONS ARE CREATED. 47 8ita8, a jus habendi et agendi. A corporation is well defined, as to the general sense of the term, by Chief Justice Marshall,^ as "an artificial being, invisible, intangible, and existing only in contem- plation of law." It is, in fact, the mere creature or crcaticm of the law, endowed by its charter with the capacity of performing certain functions, and having no rights, and possessing no powers, except those conferred by the sovereignty by which it was created. 4. It is upon this ground, that it has been declared, upon the most unqucstional)lc basis, both of principle and authority, that a " corporation can have no legal existence out of the boundaries of the sovereignty by which it is created." "^ " It exists only in con- templation * of law, and by force of the law ; and where that law ceases to operate, and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty." And the same thing, substantially, is repeated in another case ^ by Mr. Justice Thomp- son, (d) But a corporation may transact business in a foreign state or country, and may be there sued in relation to the same.* 6. There seems to be no question but the corporation may act, by its directors, agents., and servants, beyond the limits of the sovereignty by which it was created.'^ () It is said in some cases, that if the cor- 12 2 Story Eq. Jur. § 951 et seq., ed. 18G6. " Colonial Life Assurance Co. v. Home & Colonial Life Assurance Co., 33 Beav. 548; s. c. 10 Jur. n. s. 9G7. " Chadsey v. McCreery, 27 111. 253. 15 O'Douald V. Evansville, Indianapolis, & Cleveland Railroad Co., 14 Ind. 259. 15 Callender r. Painesville & Hudson Railroad Co., 11 Ohio St. 516; Atlan- tic & Ohio Railroad Co. v. Sullivant, 5 Ohio St. 276. See also Ashtabula & New Libson Railroad Co. v. Smith*, 15 Ohio St. 328. (b) See Real Estate Savings Institution v. Fisher, 9 Mo. Ap. 593. [*62] § Ml).] CONSTITUTIONS OF CORPORATIONS. 53 poratioii contracts by a style which is usual in crcatinj^ corpora- tions, and which discloses the names of no natural jiorsons, that the corporate existence will be implied and need not be iivcntd.'" But in general such a proposition would not be regarded as main- tainable in suits either in favor or against a corporation ; it should be described as such in the declaration, with its location at its central place of doing business. 11. It has been held, that where defendants, sued as a corpora- tion, rely ujion the fact that the corporate existence has ceased before the institution of the suit, it must ])e j)lcaded in abatement and not in bar of the action. But in general the want of corpo- rate existence and power may be shown at any time before judg- ment, upon proper notice and special plca.^^ A party who has sued a corporation and recovered judgment against them by a particular name, is afterwards estojjped from denying the coi'po- ratc existence. ^^ But this seems not altogether in accordance with the requirement that estoj)pcls be mutual, unless the judg- ment were between the same parties. Such an estopj^el would therefore only operate as between the jjlaintilT in the former suit and the corporation. (<^) 12. The cases are very numerous where it has been held that a * party who gives a written contract to a corporation by a partic- ular name is estopped to deny the existence and name of such corporation.^^ 13. And in all cases of the plea of nnl tivl corporation, proof of a corporation in fact will be sullicient.-*^ " Stein V. Indianapolis Building Association, 18 Ind. 237. " RIcikcl V. deiinan Savings Fund Society, &c., IG Ind. 181. 13 rochfhi V. KiMupcr, 14 La. An. 308. 20 Hubbard v. Chappel, 14 Ind. GUI. (r) Upon til is question of estoppel Savings Institution v. Burnham, 128 on one who has dealt with a de facto Mass. 4.)8, wiiere it is lu'ld tliat a corporation, see Sayers v. First Na- recital in a deed that one of the par- tional Hank, 89 Ind. 230; Stanley v. ties is a corporation is ;)nma /m-jV cvi- Richmond Railroad Co., 89 N. C. dence that it is so. And see German 331; Real Estate Savings Institution Rank v. Stunipf, 9 Mo. Ap. 593, to V. Fisher, 9 Mo. Ap, 093; Brown r. the same point. But quftrc whether Scottish American Mortgage Co., 110 the courts proceed in these cases on 111. 235; Ryan r. Martin, 91 N. C. the doctrine of estoppel, — whether the 464; Johnston Harvester Co. r. Clark, rule is more than a rule of evidence. 30 Minn. 308. See also Provident [*63] 54 PROCEEDINGS UNDER THE CHARTER. [part II. ♦CHAPTER IV. PROCEEDINGS UNDER THE CHARTEB. SECTION I. Organization of the Company. 1. Conditions precedent must be per- formed. n. (b). Semble, however, that there is a distinction between conditions. 2. Stock, in general, must all be sub- scribed. 3. Charter-location of road, condition precedent. 4. Colorable subscriptions binding at law. 5. Conditions subsequent, how enforced. 6. Stock distributed according to charter. 7. Commissioners must all act. 8. Defect of organization must be specially pleaded. 9. Question cannot be raised collater- ally. 71. (e) Semble that there is a distinc- tion between cases. 10. Records of company, evidence. 11. JMembership, what constitutes, and liow maintained. 12. Subscription and transfer of shares generally necessary. 13. Offers to take shares not enforced in equity, and may be witlidrawn. § 18. 1. To give the corporation organic life, the mode pointed out in the charter must ordinarily be strictly pursued. Condi- tions precedent must be fairly complied with.^ (a) Thus, where a given amount of capital stock is required to be subscribed or paid in before the corporation goes into operation, this is to be re- garded as an indispensable condition precedent.^ But if the charter is in the alternative, so that the stock shall not be less than one sum or greater than another, the company may go into operation with the less amount of stock, and subsequently increase it to the larger.^ (6) 1 Angell & Ames Corp. §§ 9.')-112; 2 Kent Com. 293 ef seq. 2 Infid, § 51, and cases cited. Bend v. Susquehanna Biidge. 6 Har. & J. 128; Gray v. Portland Bank, 3 Mass. 3Ul; Minor v. Mechanics' Bank, 1 Pet. 4G, per Story, J. And where a corporation is formed, or attempted to be formed, under general statutes, the inchoate proceedings do not ripen into a corpora- (a) But see Walworth v. Brackett, said that charters should not receive 98 Ma.s3. 98; People r. Stockton Rail- a technical construction, and that a road Co., 45 Cal. 306; People v. substantial performance is sufficient. Cheesenian, 7 Col. 370, where it is {h) Unless otherwise provided, the [•64] § 18.] ORGANIZATION OF THE COMPANY. 65 * 2. And wlicrc business corporations arc created with a dofi- nite capital, it is regarded as equivalent to an express condition that the whole stock shall be subscribed before the company can iro into full ojjeration ; (c) and in the case of banks, it must be paid in specie, in the absence of all provision to the contrary, before they can jiroperly go into operation.^ tioii until all the requirements of the statute, even the filing of the articles in the office of the Secretary of State, are complied with. Until this is done, the subscription of any one to the articles is a mere proposition to take the number of shares specified, of the capital stock of the company tliereafter to be formed, and not a binding promise to pay. The obligation is merely inchoate, and can never become of any force unless the corporation goes into effect in tho luode pointed out in the statute. Burt v. Farrar, L'l Barb. 518. 8 King V. Elliott, G Sm. & M. 428; infra, § 51. But a requirement in the charter of a railway company, that so much per mile shall be subscribed, and ten per cent paid thereon in good faith, does not require ten per cent to be paid by each subscriber. It suffices that such proportion on the whole sub- scription is paid. Ogdensburg, Home, & Clay. Railroad Co. r. Frost, 21 Barb. 541. Under the late English statutes, corporations are allowed to or- ganize, and make calls to some extent, before all the capital is subscribed. Ornamental Pyrographic Woodwork Co. v. Brown, 9 Jur. n. s. 578; s. c. 2 H. & C. G3. But in America, the rule that all the stock must be subscribed be- fore the company can go into operation is strenuously adhered to. Shurtz v. Schoolcraft & Three Kivers Railroad Co., 9 Mich. 2G9. And on general prin- ciples it seems not to be held indispensable in England that all the stock be subscribed, either to enable the corporation to go into operation or even to borrow money on mortgage. McDougall i;. Jersey Lnperial Hotel Co., 2 Heinm. & M. 528; s. c. 10 Jur. n. s. 1U13. But in America, the entire capi- tal stock must be subscribed and paid in money, and it will not be sulhcient to pay it in the equivalent for money, to the acceptance of the shareholders or directors, unless the charter or general laws of the state so provide. I'eople v. Troy House Co., 44 Barb. G25. incorporation takes effect on accept- Each subscription for stock, nothing auce of the charter. It would seem being stipulated to the contrary, is that tliere is a distinction between a impliedly CDuditioncd uiK)n the raising condition attached to the formation of of the full amount. Skowhegan & the corporation, and a condition at- Athens Railroad Co. v. Kinsman, 22 tached to the carrying on of business Am. & Eng. Railw. Cas. 13. after such formation. See People v. (r) The charter may, however, pro- Chambers, 42 Cal. 201 ; Hammond v. vide otherwise of course. Boston, &c., Straus, 53 INId. 1 ; Perkins r. Sanders, Railroad Co. v. Pearson, 128 Mass. 5G Miss. 733. And see Boston, Barre, 445; Boston, Barre. & Cardiner Rail- & Gardiner Railroad Co. v. Welling- road Co. v. Wellington, 113 Mass. 79, ton, 113 Mass. 79; Boston, &c. Rail- aud csxses passim. road Co. v. Pearson, 128 Mass. 445. [♦65] 56 PROCEEDINGS UNDER THE CHARTER. [PART II. 3. In some cases it is a condition of the charter, or of the sub- scriptions to tlie stock, that the track of a railway shall touch certain points, or that it shall not approach witliin certain dis- tances of other lines of travel. This class of conditions, so far as they can practically be denominated conditions precedent, must be strictly complied with, before the company can properly go into operation so as to make calls. 4. But it has been held, that colorable subscriptions to stock, in order to comply with the requisites of the charter, are not to be regarded as absolutely void. They are binding upon the sub- scribers themselves. And they are binding upon the other sub- scribers, unless upon their first discovery they take steps to stay the further j)roceedings of the corporation, which may be done in a court of equity. If there has been unreasonable delay in oppos- ing the action of the corporators, upon the faith of such subscrip- tions, or if matters have progressed so far before the discovery of the true character of the subscriptions, by the parties liable to be injuriously * affected by them, as to render it difficult to restore the parties to their former rights, the corporation will still be allowed to proceed, notwithstanding the fraud upon the charter.^ (c?) 5. Conditions subsequent in railway charters, by which is to be understood such acts as they are required to perform after their organization, will ordinarily form the foundation of an action at * Walker v. Devereaux, 4 Paige, 229; s. c. 1 Redf. Am. Railw. Cas. 29. The entire ground of ciiancery jurisdiction in regard to the conduct of cora- missioiiers or corporations in making colorable subscriptions of stock is here verj' fully discussed. The conclusion reached, that colorable subscriptions or fraudulent distribution of stock will not render the organization invalid un- less the thing is arrested in limine, seems to be the only practicable one. John- ston V. South Western Railroad Bank, 3 Strob Eq. 263; Selma & Tennessee Railroad Co. v. Tipton, 5 Ala. 787; Hayne v. Beauchamp, 5 Sni. & M. 515. The decision of the commissioners is conclusive upon the company and shareholders, certainly at law. Crocker v. Crane, 21 Wend. 211 ; s. c. 1 Redf. Am. Railw. Cas. 42. And where the charter, or act of association, names commissioners to take up subscriptions, they alone have jurisdiction of the matter, and sub- 8crii>tions taken up by volunteers are not binding upon the subscribers unless adopted by the commissioners. Shurtz v. Schoolcraft & Three Rivers Rail- road Co., 9 Mich. 269. ((f) The subscriptions should be Co. v. Felt, 52 N. II. 379; O-skaloosa absolute and not conditional. A sub- Agricultural Works i;. Parkhurst, 54 scription on condition precedent is but Iowa, 357. an offer. See Monadnock Railroad [*66] § 18.] ORGANIZATION OF THE COMPANY. 67 law, in favor of the party injured ; or tlicy may be specifically en- forced in courts of equity, in cases proper for their interference in that mode ; or, if the charter expressly so provide, proceedings by way of scire facias to avoid the charter may be taken.^ 6. Where a statute declares certain persons by name, and such other persons as shall hereafter become stockholders, a corporation, the distribution of the stock, in the mode pointed out in the statute, is a condition precedent to the existence of the corporation.^ 7. Where the charter of a railway company appoints a certain number of commissioners to receive subscriptions and distribute the stock, in such manner as they shall deem most conducive to the interests of the company, making no provision in regard to a quorum, all must be present to consult when they distril)utc the stock, although a majority may decide, this being a judicial act. * Receiving subscriptions is a merely ministerial act and may be performed by a number less than a majority.^ If the organization of a corporation is regular upon its face, and the legislature have recognized it as such subsequently to its having gone into operation, it becomes ijjso facto a legal corporation." 8. Questions in regard to the organization or existence of the corporation can only be raised ordinarily upon an express pica, either in abatement or in bar, denying its existence.^ ^ 2 Kent Com. 30.3, and notes. 6 Crocker v. Crane, 21 Wend. 211; s. c. 2 Am. Railw. Cas. 484; s. c. 1 Redf. Am. Railw. Cas. 42. "Where the statute names a large number of per- sons, and enacts that they, or any three of them, may act as commissioners, either the whole number or any three may act at the election of tiie individuals. No particular form of words i.s required to create the errant of a corporation. The grant of power to perform corporate acts implies tlie grant of corporate powers. (Commonwealth v. West Chester Railway Co., 3 Grant Cas. 200. ■' Hlack River 6i. Utica Railway Co. v. Rarnard, 31 l?arb. 208. * Boston Type & Stereotype Foundry v. Spooner, 5 Vt. 93, and cases cited; Rail.sback v. Liberty & Abington Turnpike Co., 2 Cart. 6.'>0. But some ca.ses seem to require such proof to establish the contract. Stoddard v. Onondaga Annual Conference, 12 Barb. 073; lleaston r. Cincinnati & Fort Wayne Rail- road Co.. 1() Ind. 275. One who executes his promissory note to a company by its corporate name is estopped to deny its corporate existence. East Tas- cagoula Hotel Co. t'. West, 13 La. An. 541; s. p. Black River Railroad Co. v. Clarke, 25 N. Y. 280. But in an action by a corporation on a judgment, tlie defendant is estopped to plead that no such corporation exists, even if he pro- pose to jirove its dissolution after the date of tin- judgment. He should plead such matter specially. Perth Aniboy Steamboat Co. v. Parker, 2 Phila. G7. But see Anderson v. Kerns Draining Co., 14 Ind. 109. [*C7] 58 PROCEEDINGS UNDER THE CHARTER. [PART II. 9. But all the cases concur in the proposition, that the existence of the cori)oration, the legality of its charter, and the question of its forfeiture, cannot be inquired into, in any collateral proceed- ing, as in a suit between the company and its debtors, or others against whom it has legal claims.'^ (e) 10. The records of the corporation are prima facie, but not in- dispensable, evidence of its organization and subsequent proceed- ings.''^ But the authenticity of the books, as the records of the 9 Duke V. Cahawba Navigation Co., 16 Ala. 372; infra, § 212, note 6. But in an action against a stockholder for the debt of the company under the stat- ute, the existence and organization of the company must be proved; and judgment against the company is not evidence against the stockholder. Hudson V. Carman, 20 Law Rep. 216; s. c. 41 Me. 81; Cleveland, Painsville, & Ashtabula Railroad Co. v. Erie, 27 Penn. St. 380. See also Eakright v. Logansport & Northern Indiana Railroad Co., 13 Ind. 404. The subscription to the stock of a corporation estops the subscriber to deny the coi'porate exist- ence; nor can the subscriber plead in defence of such subscription that other subscribers, by means of secret fraudulent agreements, were promised sliares on terms different from those specified in the agreement, since such fraudu- lent arrangements are of no validity, and cannot avail the parties on who.se behalf they are made. Anderson v. Newcastle & Richmond Railroad Co., 12 Ind. 376. ^^ Angell & Ames Corp. § 513; Grays v. Lynchburg & Salem Turnpike Co., 4 Rand. 578; Buncombe Turnpike Co. v. McCarson, 1 Dev. & Bat. 306; 1 Greenl. Ev. §493; Rex v. Martin, 2 Camp. 100; Hudson v. Carman, 20 Law Rep. 216; s. c. 41 Me. 84. A corporation, to establish its existence in a litigation with individuals, need only prove its charter and user under it. This constitutes it a corporation de facto, and that is sufficient, in ordinary suits between the corporation and its debtors. The validity of its corporate existence can be tested only by proceedings in behalf of the people. Mead v. Keeler, 24 Barb. 20. Between the company and strangers, the records of the company will ordinarily be held conclusive against it in regard to such mat- ters as it is its duty to perform. Zabriskie v. Cleveland, Columbus, & Cin- cinnati Railroad Co., 10 Am. Railw. T. No. 15; s. c. affirmed, 23 How. 381; (e) But liere again there would of collaterally; of the latter, by the seem to be a distinction where the state alone. First National Bank r. existence is alleged to depend on the Davies, 43 Iowa, 424. And see Lord performance of certain conditions pre- v. Essex Building Association, 37 cedent, between the case of conditions Md. 320; People v. Chambers, 42 which are necessary steps in the process Cal. 201; Mokelumne Hill IMining of incorporation and conditions re- Co. v. Woodbury, 14 Cal. 421; Ham- quired of individuals seeking to be- mond v. Straus, 53 Md. 1; Perkins v. come incorporated. Non-performance Sanders, 56 Miss. 733. of the former may be taken advantage [♦G7] § 18.] ORGANIZATION OP THE COMPANY. 59 * corporation, must bo shown l)y the testimony of the pro[)er ofliccr entitled to their custody, or that of some other person cog- nizant of the fact.^^ 11. Questions sometimes arise as to what constitutes member- ship in a corporation. This has to be determined, in most ajrgre- gate corporations, by the just construction and fair import of tlie charter and by-laws of the body. The usage of the corporation and of other similar bodies will be of controlling force in deter- mining such questions. But the power of maintaining in some mode a supply of members of the body, is incident to all corpora- tions, as indispensable to its continued existence.^^ Heastou v. Cincinnati Co., IG Ind. 275. Upon the general question of proof and presumption of the organization of corporations see Leonardsville Bank v. Willard, '25 N. Y. 574; Belfast & Angelica Plank Road Co. v. Chamberlain, 32 X. y. 651 ; Buffalo & Allegheny Railway Co. v. Gary, 26 N. Y. 75. Where the statute under which an mcorporation is formed in another state required, that before the corporation should commence business it should cause its arti- cles of association to be published in a prescribed form, it was held that it might be regarded as sufficiently incorporated for the bringing of an action without the publication; and that the general reputation and notoriety of the fact that the corporation was doing business in that capacity, coupled with the fact that the contract sued on was made payable to it, was sufficient evidence of the corporate existence. Holmes v. Gilliland, 41 Barb. 5GS. See Unity Insurance Co. v. Cram, 43 X. H. 63G, where the rule of construction is some- what more strict. There seems to be no rule of practice better settled than the rule that where the defendant, in a suit brought by a corporation, pleads the general issue, he thereby concedes the right of the plaintiff to sue in his corporate capacity. Orono V. Wedgeworth, 44 Me, 49. The members of a mutual insurance com- pany cannot dispute the corporate existence in a suit on the premium notes in favor of a receiver appointed to wind up the concerns of the company. Hyatt V. Whipple, 157 Barb. 595. Misnomer of corporations must be pleaded in abatement, or it will be regarded as waived. Keech v. Baltimore & Washing- ton Railway Co., 17 Md. 32. " Higliland Turnpike Co. v. McKean, 10 Johns. 154. See Breedlove v. Martinsville & Franklin Railroad Co., 12 Ind. 114. 1- Hicks V. Launceston, 1 Rol. Abr. 513, 514; s. c. 8 East, 272 note. Sec also 2 Kent Com. 294. It is not competent for the defendant, in an action by a corporation, to plead that the company has committed acts working a for- feiture of its corporate franchises. Tliat can be determined only by a suit on behalf of the public, brought expressly to try that question. Commonwealth V. Morris, 1 Phila. 411; Coil v. Pittsburgh Female College, 40 Penn. St. 43!); Dyer v. Walker, id. 157. Membership in the corporation is not affected by the certificate of shares containing a promise to pay interest till a certain time. McLaughlan v. Detroit & Milwaukee Railway Co., 8 -Mich. 100. [*68, •69] GO PROCEEDINGS UNDER THE CHARTER. [part II. * 12. But in joint-stock business corporations, like banks and railways, and other similar companies, membership is originally constituted by subscription to the shares in the capital stock ; and it is subsequently continued by the transfer of such shares, in con- formity with the charter and by-laws of the company, and no election by or assent on the part of the corporation is requisite, unless made so by the charter or by-laws. 13. ►Serious questions often arise in regard to the allotment and acceptance of shares. Courts of equity have sometimes declined to interfere to carry into effect, specifically, contracts with the pro- moters to accept shares in the company when it should be fully organized.!^ But, we apprehend, the rule is generally otherwise, as we have stated elsewhere.^* And one who has made the requisite deposit, and also the formal application to the company for an allotment of shares, is still at liberty to withdraw the application at any time before it is accepted or any allotment made.^^ SECTION II. Acceptance of Charter or of Modification thereof. 1. New or altered charter must be for- mally accepted. 2. Subscription for stock sometimes suffi- cient. 3. Inojjcrative unless made as required. 4. Assent to beneficial grant presumed. 5. Matter of presumption and inference. 6. Organization or acceptance of charter may be shown by parol. 7. Corporators assenting are bound. 8. Charter subject to recall until ac- cepted. § 19. 1. It is requisite to the binding effect of every legislative charter (or modification of such charter) of a joint-stock company, * that it should be accepted by the corporators.^ This question more commonly arises in regard to the modification of a charter, or the granting of a new charter, the company in either case, " Oriental Inland Steam Co. i-. Briggs, 2 Johns. & H. 625; s. c. 4 Law T. N. 8. 578. But this case was affirmed by the Lord Chancellor, on the ground that there was no valid or complete contract. 5 Law T. n. s. 477. " Infra, § 34, pi. 6. is Ex parte Graham, 7 Jur. n. s. 981. ^ KinjT V. Pasmore, 3 T. R. 200, 240; Ellis v. Marshall, 2 ]\Iass. 269. In the latter case there was a charter to certain persons by name, for the purpose of makin? a street, and subjecting them to assessment for the expense, and it was held not to bind a person named in the act, unless he assented to it. [*70J § 19.] ACCEPTANCE OR MODIFICATION OF CHARTER. CI whether under Uic old or (lie new cliartcr, ffoing forward to all appearance much tlie same as before. In sucli case, it has usually been regarded as important to show some delinite act of at least a majority of the corporation.^ 2. The question of acceptance becomes of importance often, where a partnership, or some of its members, obtain an act of in- corporation. Ijut ordinarily, in the first instance, the assent of the stockholders or corporators is sufliciently indicated by the mere subscri])tion to the stock. 3. Where a statute in relation to a corporation requires accei)t- ance in a prescribed form, and that is not complied with, the cor- poration can derive no advantage from the act.^ 4. It has been held, that grants beneficial to corporations may be presumed to have been accepted by them, the same as in the case of natural persons.* (a) 5. And in the majority of instances, perhaps, tlic acceptance is rather to be inferred fi'om the course of conduct of the company than from any exj)ress act.^ 6. It may always be proved by oral testimony, as may also the organization of the company, ordinarily.^ 7. In a case in Ohio, where an amendment of the chartor of a bank was passed by the Icgislatm-e giving the bank certain immunities and privileges, upon the assent of all the stockholders in writing, filed with the auditor of the state, to become personally responsible for the liabilities of the company in the manner pre- scribed * in the act, it was held, that although all the stockholders did not subscribe the required written declaration, yet if the l)ank had enjoyed the benefits secured by the amendment, neither those stockholders who did subscribe it, nor the bank itself, can deny 2 WiLMOT J , in Rex v. Vice-Chancellor of Cambridge, -T I'lir. IHIT; Rex V. Amery, 1 T. R. .')75; Falconer v. Campbell, 2 McLean, 195. 8 Green v. Seymour, 3 Sandf. Ch. 285. * Charles River Bridge v. Warren Bridge, 7 Pick. 311, per Parker, C. J., and Wilde, J. ' United States Bank v. Dandridge, 12 Wheat. 61, per Story, J., and cases cited. « Coffin V. Collins, 17 Me. 410; Manchester Bank v. Allen, 11 Vt. 302; Angell & Ames Corp. §§81-87; Dartmouth College c. Woodward, 1 AVheat. 688; Wilmington & Manchester Railroad Co. v. Saunders, 3 Jones, 126. (a) And acceptance may be pre- lanta r. Gate Ciiy Gaslight Co., 71 (la. sumed from previous application. At- lOG; Perkins i'. Sanders, 5G Miss. 733. [•71] 62 PROCEEDINGS UNDER THE CHARTER. [part II. the acceptance of the amendment, as against the claims of third persons.' 8. And where the constitution of the state is so altered as to proliibit the grant of special acts of incorporation, it was held, that such an act granted before the new constitution took effect, and which had not been accepted by the corporators, could not be accepted thereafter ; as the grant of a charter to those who had not applied for it, until it was accepted, remained a mere offer, and might be withdrawn at the pleasure of the grantors.^ But where any amendment of the charter of a corporation is fully accepted by the shareholders before the new constitution takes effect, it can- not be affected by any of the provisions thereof ; and what shall amount to such acceptance is matter of fact, depending upon the construction of the facts proved.^ SECTI0:JT III. Ordinary powers — Control of majority. 1. Ordinary franchises of railways, like those of other private corporations appregrate. 2, 3. Implied right of majority to control. 4. Cannot change organic law. 5. Except in the prescribed mode. 6. Nor accept amended charter. 7. Nor dissolve corporation. 8. May obtain enlarged powers. 9. Equity will not restrain the use of funds for that purpose. 10. But will, for conversion of canal into railway. 11. Eight to interfere lost by acquies- cence. 12. Acquiescence of one plaintiff, fatal. 13. Railway a public trust. 14. Suit maintained by rival interest. 15. Equity will not restrain majority from winding up except for fraud, &c. § 20. 1. The ordinary powers (a) of a railway company are the same as those pertaining to other joint-stock aggregate corpora- ^ Owen I'. Purdy, 12 Ohio x. s. 73. And a legislative permission to a }>lank-road company to mortgage its corporate property is an amendment which may be accepted by the vote of the majority. And the same is true of all amendments calculated merely to facilitate the attainment of the existing objects and purpo.ses of the corporation. Joy v. Jackson & Michigan Tlank Road Co., 11 Mich. 15.5. 8 State V. Dawson, 16 Ind. 40. » State v. Dawson, 22 Ind. 272. {n) A corporation ha,s such powers so conferred. Central Railroad & only as are expressly conferred or as Banking Co. v. Smith, 76 Ala. 572. are necessary to the exercise of powers One of the ordinary powers of the cor- [•71] § 20.] ORDINARY CORPORATE POWERS. 68 tions, unless restricted by tlie express provisions of their charter, * or by the general laws of the state. These are i)erpetual succes- sion ; the power to contract, to sue and be sued by the corporate name, "to hold land for the purposes of the incorj)oration, to have a common seal, and to make its own by-laws or statutes, not incon- sistent with the charter, or the laws of the state. ^ And it may be proper to say, that it is implied in the grant of all business cor- porations, that they possess the power to acquire and convey such property, both real and personal, as shall be found reasonably necessary and convenient for carrying into successful operation the purposes of their incorporation. And when there is no limita- tion upon this power in the act of incorporation, it can only be limited by writ of mandamus or injunction, out of chancery, at the suit of the attorney-general, or by some other proceeding on the part of the peo{)lc. Until some such public interference, the title of the corporation will be good. 2. The right of the majority of a joint-stock company, whether a copartnership or a corporation, to control the minority, is a con- sideration of vital importance, and will be more extensively dis- cussed hereafter. 2 {b} 3. There can be no doubt that the general principle of the right of the majority to control the minority, in all the operations of the company, within the legitimate range of its organic law, is implied in the very fact of its creation, whether expressly con- ferred or not.^ (f) » Waif. Raihv. G9; 1 Bl. Com. 475, 476; 2 Kent Com. 277, where the power of anintion of members for just cause is added. 2 ;»//•«, §§ 50, 212. 8 Louisville, Cincinnati, & Charleston Railway Co. r. Letson, 2 How. 407. The very definition of a corporation, that it is an artificial being comi>oscd of poration is the power to apply in equity (b) A member of a corporation to have fraudulent aa;reements of its assents to the rule of the majority directors set aside; and proceedings only where the rule is within the by a single shareholder will enure to powers of the corporation. Leo v. the benefit of all the shareholders, if Union Pacific Railroad Co., IG Am. promptly instituted. His diligence & Eng. Raihv. Cas. 452. will be their diligence, and laches will (c) See Dudley r. Kentucky Ilijih not be imputable to them. Metropoli- School, 9 Rush, 578, per Lindsay, J. tan Elevated Railway Co. r. Manhattan And see also Durfee r. Old Colony Railway Co., 15 Am. & Eng. Railw. Railroad Co., 5 Allen, 242, per Bige- Cas. 1. LOW, C. J. [*7-2] 64 rUOCEEDINGS UNDER THE CHARTER. [PART II. 4. And pcrliajjs it is equally implied in the fundamental com- pact, that the majority have no power to change the organic law of * the association, except in conformity to some express provision therein contained. 5. This princi|)lc lies at the foundation of all the political or- ganizations in this country, which, in theory certainly, are not liable to be changed by the will of the majority, except in the mode pointed out in the constitution of the state or sovereignty. And corporations are not subject to the ultimate right of revolution, which is claimed to exist in the state, and which may be exercised by the law of force, which is a kind of necessity to which all sub- mit when there is no open way of escape. This could have no ai)])lication to a commei'cial company, whose movements are as much under the control of the courts of justice as those of a natural person. 6. And in this country it has been held, that the acceptance by the majority of a corporation of an amendatory act does not bind the minority.* (c?) An amendment to tlie charter of a corpora- tion, to become binding, must either have been applied for in pur- suance of a vote of the stockholders, or else have been accepted by such vote ; or it must have been acted under for such a length different members, and existing and acting as an abstraction, and having its habitation where its functions are performed, presupposes that it must act in conformity with its fundamental law, which is according to the combined results of its members, or the will of the majority. But this will cannot change its fundamental law without changing the identity of the artificial being to which we apply the name of the corporation. See St. IMary's Church, 7 S. & R. 517; New Orleans, Jackson, &c. Railroad Co. v. Harris, 27 Miss. 517. See also Viz parte Rogers, 7 Cow. 52(J, which holds that if the charter requires a certain number to be present, in order to the performance of a particular act, it is requisite that the number remain till the act is complete, and if one depart before, though wrongfully, it will defeat the proceedings. * New Orleans, Jackson, &c. Railroad Co. r. Harris, 27 Miss. 517. But this rule has some limitations. "While the alteration, if fundamental, must have the assent, express or implied, of all the corporators {infra, pi. 8; § 56, pi. 3, 7), if it be an amendment within the ordinary range of the original charter, giving increased facilities for the accomplishment of the same objects, it m.iy be accepted by the majority so as to bind the whole company. (') of time as to raise a rcasoiialjlc presumption of knowledge in the shareholders, and subsequent acquieseence.*^ 7. And a contract of a manufacturing corporation to employ the plaintiff, a stockholder, during the time for which the corporation is established, that being indefinite, is not released by a majority of the company voting to dissolve the corporation and wind up its concerns, discharging the plaintiff from his employment, and tran.s- ferriiig the property to trustees to pay the debts and distribute tho surplus among the stockholders, and giving notice to the executive (l(^j)nrtment of the state, that they claimed no further interest in their act of incorporation.^ (<;) * 8. But the English cases seem to suppose, that it is incident to every business cori>oration to obtain such extension and en- largement of its cor})orate powers as the course of trade, and enterprise, and altered circumstances, shall render necessary or desirable, not altogether inconsistent with its original creation.^ 9. Hence it was held that a court of equity will not, at the in- stance of a shareholder, restrain a joint-stock incorporated com- pany, whose acts of incorporation prescribe its constitution and objects, from applying, in its corporate capacity, to parliament, and from using its corporate seal and resources, to obtaiu the sanction of the legislature to the remodelling of its constitution, or to a material extension and alteration of its objects and powers.'' s Illinois River Railway Co. r. Zimmer, 20 111. G54. 8 Revere i-. Boston Copper Co., 15 Pick. 351. This case, although put mainly on the ground of plaintiff's rights being indepentlent of the law of the association, yet incidentally involves the right of the majority of the corjwra- tors to change its constitutional law. See also Von Schmidt i;. Huntington, 1 Cal. 55, and Keaii c. Johnson, 1 Stock. 101, where it is held, that where the charter is granted for a limited time, it must continue in operation till the term expires, unless, perhaps, in case of serious loss, or of consent of all the corporators, and others having any legal interest in the question. The same rule was declared in Louisiana in Lodge No. I. v. Lodge No. I., !•> La. An. 53, where it was considered, that a resolution passed by the majority of the members of a corporation giving the property of the company to a new corporation of which the members voting were also members, and the delivery thereof in pursuance of such resolution, was void. ■' Ware v. Grand Junction Waterworks, 2 Russ. & M. 170. Lord RuortvuAM seems here to suppose, that the riglit of petition to parliament for enlarge- (c) Nor can the majority assent to Line Railroad Co., 35 :\lioh. 217; a consolidation of the corporation Clearwater t'. Meredith. 1 ^^ al. 25. with another. Tattle v. Michigan Air VOL. 1. — 5 C*""^] 66 PROCEEDINGS UNDER THE CHARTER. [PART II. 10. In one case, where the purpose of the company was to apply to parliament for leave to convert part of its canal into a railway, the Vicc-Chancellor granted the injunction against applying any of its existing funds to the proposed object.^ This is the more common view of the subject in this country, and to a great extent in England.^ (/") 11. But this right of the minority of the shareholders to inter- fere * by way of injunction, to restrain the majority from obtain- ing permission to alter the constitution of the corporation, may undoubtedly be lost by acquiescence.^^ (g') Thus Avhere the share- holders know of the purpose of the directors to apply the funds of the company to the construction of part only of the road, to the abandonment of the remainder, and remained passive for eighteen months, while the directors were applying large sums to the completion of this part only, the court refused to interfere by in j unction. 1*^ meiit of powers, is an implied incident of all business corporations, by which the subscribers are bound, unless some express prohibition is inserted in the charter. But the more common implication in this country certainly is, that the original shareholders are not bound by any such alteration, unless such power exists, in terms, in the original charter, or is auxiliary to existing powers. 8 Cunliff V. Manchester & Bolton Canal Co., 2 Russ. & :\r. 480, note. But it is here stated, that a few days afterwards, one Maudsley filed a bill against the same company and for a similar object. The cause was heard on its merits, and the suit dismissed with costs. Any act beyond the scope of the constitution of the company requires the consent of all the members. Bur- mester v. Xorris, 6 Exch. 796; s. c. 8 Eng. L. & Eq. 487. Infra, §§ 50, 181, 212. JO Graham i;. Birkenhead, &c. Railway Co., 2 Macn. & G. 146; s. c. 6 Eng. L. & Eq. 132; Beman v. Rufford, 1 Sim. N. s. 550. Lord Craxwouth says, " This court will not allow any of the shareholders to say, that they are not (/) See Railway Co. v. Allerton, 18 v. Union Pacific Railway Co , 19 Fed. Wal. 263; In re London Discount Co., Rep. 283. And one shareholder may Law Rep. 1 Eq. 277, maintain a bill to restrain the corpo- () But qurere if the notice of anj/ Old Brewery Co., Law Rep. 2 Ch. 191. special meeting should not state the And see Ehrenfeldt's Appeal, 101 business, /n re Silkstone Fall Colliery Penn. St. 186. Co , Law Rep. 1 Ch. 38; In re Bridport [*78] § 21.] MEETINGS OF COMPANY. 71 mcctinj^be for the transaction of any ollior l)usincss than the nicro comj)l('lioii ol the uiiliiiishcd business of the stated oi- s|)ccial nicct- inir, as tiie ciise may be; and more csj)ccially wh(.'re the business is of a character wliicii could not have Ijcen Iciially trausactcd at the former meeting, it will not arr()rd any warrant Im- its IcL'^ality that it is (lone at an adjourned meetinu; from one leirally consli- tutcd originally.'' But the [)ublicity and general notoriety of a transaction may be sufticicnt * ground for ])resuming knowl- edge of the appointment of one to a corporate oHTice, even to the extent of subjecting such corporator to a penalty for non- acceptance.^ 6. By the English statutes, railways may act in either of three modes: First, by the general assembly of the shareholdei'S, which, as between them and the directors and other agents of the com- })any, has supreme control of its affairs; second, by its direc- tors ; third, by its duly constituted agents.^ The same general I>rinciple is apjjlicable in this country, and at common law. 7. And where the by-laws require the meetings of the company to be held at a jtarticular jdace, as the counting-house of the com- pany, and the record or evidence does not show that the meetings were held at a different place, it will be presumed they were held at the place designated. ^° (c) 8. Every shareholder is, ordinarily, entitled to participate in the meetings of members of the corporation duly called and to vote upon all his shares, according to the mode prescribed in the char- ter and by-laws of the company, and in conformity with the gen- eral laws of the state. But it seems not well settled whether a by-law of the corporation will be sufficient to entitle the members to vote by proxy, and whether some legislative sauction is not requisite to that effect.^* But where the charter provided that ■^ Teoplo V. P.atcholor, 22 N. Y. 128; Scadding v. Lorant, 5 Kn;;. L. & Eq. IG. See Smith v. Law, 21 N. Y. 29G. 8 LoikIom r. Vanacre, 5 Mod. 438. » Waif, l^ailw. 70. '0 IMcDanicls v. Flower Brook Mainifactnrinp: Co., 22 Vt. 271. " State V. Tiulor, ."i Day, 020; wliere, in more hnsiiie.s.s corporal ion.s, it was considered that a by-law wa.s siifRoient to give the power to vote by proxy- P.ut in Taylor v. Griswold, 2 Green, 222, the contrary opinion is maintained. See also, 2 Kent Com. 29 1. There seems no q>iestion that in public and elee- mosynary corporations the members must attend in person. (r) See supra, note (a). [•79] 72 PROCEEDINGS UNDER THE CHARTER. [PART H. " each person being present at an election shall be entitled to vote,'' it was held to mean actual presence, and votes by proxy were properly cxclndcd.^^ 9. The question is sometimes made, where shares are held by creditors as collateral security for debts, which party, the debtor or the creditor, is entitled to represent the shares, so held, in the meetings of the company. Upon general principles, the party who l)ledges or mortgages or in any other mode hypothecates shares as security for a debt, is still to be regarded as the general owner, and entitled to all the privileges and subject to all the responsi- bilities of owncr.^^ (c?) 10. Trustees, whether testamentary or executors, guardians, or others holding shares in joint-stock companies for the ultimate benefit of others, are generally entitled to act as members, and are responsible as such, without reference to the extent of their in- terest or the amount of the trust estates.^* (g) But in New York even this is denied where the cestui que trust is sui juris, and, as said, the latter is entitled to vote upon the shares and to act as member, by virtue of the interest vested in the trustee for his benefit. ^^ 11. And in California,^^ where a certificate of shares was issued by a corporation in the name of B., in order to secure a debt of the corporation due to A., it was held that the same was illegally issued, and that no one could vote upon it. B. could not, because he was a mere trustee for A., and, as between them, whatever interest was created vested beneficially in A. And A. could not vote upon the stocks, because liis property was not that of the general owner, but 12 Hroom v. Common\Yealth, 2 Phillips, 156. 13 Cummins v. Prescott. 2 Y. & Col. Ex. 488; Ex parte Willcocks, 7 Cow. 402; Ex pnrtp. Barker, G Weipd. oOD ; ^IcDaniels v. Flower Brook Manufac- turing Co , 22 Vt. 274. The same is declared by statute in Massachusetts. Gen. St. c. G8, § 13. " Ex parte Iloare, 2 Johns. & II. 229; s. c. 8 Jur. n. s. 713; Fearne & Deane's Case, Law Rep. 1 Ch. App. 231. i** Ex parte Holmes, 5 Cow. 426. See infra^ § 40, pi. 5, and cases cited. " Brewster i-. Hartley, 37 Cal. 15. C'/) Vail I'. Hamilton, 85 N. Y. 453. books. :McIIenry c. Jewitt, 26 Hun, Rut when one has sold his shares, he 453. is not entitled to vote, though there (^) In rn Xorth Shore Ferry Co., has been no transfer on the company's 63 Barb. 556. [*79] §22.] ELECTION OF DIRECTORS. 73 that of a pledgee. And the corporation could not vote upon its own stock. (/) 12. Where shares are passed as collateral security, it is incum- bent upon the holder to return the identical shares received by liim, whenever the purposes of the pledge are answered. And if the shares have been sold, and others purchased by the transferee at a less price, the transferor will be entitled to the difference. But if the transferor have parted with the shares before he is aware that they have been changed, he cannot maintain a bill to restore the shares originally transferred, since he will be bound to first restore those received bv him.^' ♦SECTION Y. Election of Directors. 1. Should be at general meeting, or on special notice. 2. Shareholders may restrain their au- thority. .3. Company bound by act of directors de facto. 4. Act of officer de facto, binds third per- sons. § 22. 1. The election of directors is regarded as more impor- tant to the interests of the company than most other business, in- asmuch as, when duly elected, they hold office for a considerable term, and have all the powers of the corporation in regard to the transaction of its ordinary business, unless especially restrained. They should, therefore, be elected at the regular meetings of the company, and even vacancies should not properly be filled at special meetings, unless special notice of that particular business had been given according to the laws of the company, which in- clude its charter and statutes, and the general laws of the state applicable to the subject. 2. The shareholders may, in a proper assembly, pass statutes, general or special, which shall control the directors, as between them and the company.^ "Where the by-laws of the company " Langton v. Waite, 17 W. R. 475. ^ But where the charter vests the control of the concerns of the company in a select board or body, the shareholders at large have no right to interfere (/) Nor can any vote be cast on as to what the vote shall be. In re shares whose joint owners disagree Pioneer Paper Co., 36 How. Pr. 111. [•80] 74 PROCEEDINGS UNDER THE CHARTER. [PART II. require notice of the meeting for electing directors, but do not specify the time or mode of such notice, it must be given accord- in"- * to the requirements of the general statutes of the state upon the subjcct.2 3. But tlie company cannot object that its directors, who have acted as such, were not elected at a meeting properly notified.'^ (a) with the doings of these, their charter agents. Commonwealth v. St. Mary's Church, 6 S. & R. 508; Dana v. United States Bank, 5 Watts & S. 223, 247; Conro V. Port Henry Iron Co., 12 Barb. 27. And courts are always reluctant to interfere with the conduct of directors of a corporation, even at the instance of a majority of the shareholders, and ordinarily will not, when such directors have acted in good faith. State t-., Louisiana Bank, 6 La. 745. In Scott r. Eagle Fire Co., 7 Paige, 198, it was held, however, that the di- rectors of a joint-stock corporation may be compelled to divide the actual sur- plus profits of the company among its stockholders from time to time, if they neglect or refuse to do so, without any reasonable cause. But if they abuse their power to make dividends of surplus profits, by dividing the unearned premiums received by them, without leaving a sufficient fund, exclusive of the capital stock, to satisfy the probable losses on risks assumed by the company, it seems they will be personally liable to such ci'editors of the company, if in consequence of extraordinary losses the company become insolvent. 2 In re Long Island Railroad Co., 19 Wend. 37: s. c. 2 Am. Railw. Cas. 453. ' Sampson v Bowdoinham Steam Mill Co., 36 Me. 78. Where persons have acted as directors of a railway company, the court will not summarily inquire into the validity of their appointment. In Thames Haven Dock & Railway Co. v. Hall, 5 Man. & G. 274, 286, Tindal, C. J., said: "If the shareholders allow parties to act as directors, it may be they have no right to turn round in a court of justice and say that such parties were not properly elected." In Port of London Assurance Company's Case, 5 De G. M. & G. 465; s. c. 35 Eng. L. & Eq. 178, one registered insurance company agreed to sell its business to another registered insurance company, and a deed of assign- ment was accordingly executed, whereby the latter company covenanted to indemnify the former against all claims. After the business had been carried on for some time by the purchasing company, that company failed, and both companies were wound up under the Winding-up Acts. On tender by the official manager of the selling company of proof against the purchasing com- pany, in respect of claims satisfied by the selling company, one part of the deed of assignment was produced, having affixed to it the seal of the purchas- ing company, but another part, alleged to have been executed by the selling (a) Nor can they object to the nary doctrine of the law of agency, acts of a board allowed to hold over. See Despatch Line v. Bellamy Manu- Thorington v. Gould, 50 Ala. 461. facturing Co., 12 X. H. 223, per This gpner.al rule rests on the ordi- Parker, J. -[*81] § :^3.] MEETINGS OF DIKECTOaS. 75 Nor can the validity of tlic acts of the directors be collaterally called in question on the ground of irregularity in the notice of the meeting at which thi-y were elected.'* Where the charter fixes the number of directors, and vacancies occur, the act of the board is not thereby invalidated, provided a quorum still remains.^ 4. An election of directors will not be set aside, because the inspectors of the election were not sworn as required by the stat- ute. This statute is merely directory, and, so far as third persons are * concerned, it is suflicient that the ins])cctors were elected and entered upon the duties of the ollice, and became officers de facto.^ SECTION VI. Meetings of Directors. 1. Every director should he notified. 2. Adjourned meeting requires no special noti(;e. 3. Bonrd not required to be kept full. 4. Usurpations tried by shareiiolders or courts. 5. Usage will often excuse irrepularities. 6. Decisions of majorit}' usually valid. n. 8. Records of proceedings, evidence. 7. The action must be takeu at a formal meeting. § 23. 1. As a general rule, where corporate powers are vested in certain members, whether the whole body of the shareholders, the directors, or a committee, and the general laws of the state, company, was not forthcoming. The court held that it was unnecessary to determine whether the sellins; company had executed the purchase-deed, or whetlier its directors had exceeded their powers in making the sale; that where a purchaser has enjoyed the subject-matter of a contract, every pre- sumption must be made in favor of its validity; and that if all the proceed- ings on the part of the directors of the purchasing company, with reference to the purchase, had not been in strict accordance with its own deed of settle- ment, still, if the contract with the other company was the means of the latter's coming into existence, the former could not act in contraventioa thereof. * Chamberlain v. Painesville & Ilud.son Railway Co., 15 Ohio St. 22"). 6 Waif. Uailw. 71, 72; Thames Haven Railroad Co. i'. Rose. 4 Man. & G. 552. 8 In re Mohawk & Hudson River Railway Co.. 19 Wend. 135; 8. c 2 Am. Railw. Cas. 460. [•82] 76 PROCEEDINGS UNDER THE CHARTER. [PART II. tlic cliartcr of the company, or the corporate statutes, contain no directions in regard to assembling the body, it is requisite to give due legal notice to each member, (a) Accordingly, when by the rules of a friendly society the power of electing officers was vested in a committee of eleven, at a meeting of the committee, where ten of the members were present, the eleventh not having received no- tice, and the defendant was removed from the office of treasurer, and the plaintiff appointed in his stead by a majority of votes, it was held that the election was void, although the absent committee- man had, for a considerable period, absented himself from the meetings, and intimated an intention not to attend any more, and although the defendant himself had demanded a poll at the elec- tion, and was now objecting to its validity.' (ft) * 2. But an adjourned general meeting of directors, which is provided for by the general regulations of the board, and is for the transaction of the general business of the company, requires no 1 Roberts v. Price, 4 C. B. 231. In the course of the argument in this case, Cresswkll, J., referred to King v. Langhorn, 4 A. & E. 538, and in his opinion said he thought that case "directly applicable." In Smyth v. Darley, 2 H. L. Cas. 789, 803, it is said: " The election being by a definite body, on a day of which, till summons, the electors had no notice, they were all entitled to be specially summoned; and if there were any omission to summon any of them, unless they all happened to be present, or unless those not summoned were beyond summoning distance, — as, for instance, abroad, — there could not be a good electoral assembly; and even an unani- mous election by those who did attend would be void." Infra, § 211; Great Western Railway Co. v. Rushout, 5 De G. & S. 290 ; s. c. 10 Eng. L. & Eq. 72. {a) Otherwise the majority might of the state, unless otherwise provided in effect exclude the minority from by the charter. See Bellows v. Todd, participation in the management of 39 Iowa, 209; Reicliwald v. Commer- the affairs of the company. Herring- cial Hotel Co., 106 111. 439; Ormsby ton V. Listen, 47 Iowa, 11; Doyle v. V.Vermont Copper IMining Co., 56 :Mizner, 42 Mich. 332 ; Stoyestown N". Y. 632. And .see Wood Hydraulic Turnpike Co. v. Graver, 45 Penn. St. IMining Co. v. King. 45 Ga. 40. where 386. But if a quorum be present it is said that as the authorities are due notice to all will be presumed, now uniform that an agent of the cor- Chohan Insurance Co. r. Holmes, 68 poration may act out of the state, and Mo. 601. as directors are but agents, there ('') The weight of authority seems would seem to be no reason why they to support the proposition that the should not so act. directors mav hold their meetings out [*83]" § 23.] MEETINGS OP DIRECTORS. 77 special notice of cither time or place, or of the business to be transacted.^ 3. But where the charter of a railway provides that its Ijusiucss shall be carried on under the management of twelve directors, to be elected in a particular mode pointed out, and that where vacancies shall occur it shall be lawful for the remaining directors to lill them, it was held that this provision did n(jt require that the board should be always full ; but was merely directory, as to the mode of lilling vacancies.^ 4. Where it is complained that tlie existing board of directors have usurj)ed their places in violation of the wishes of the ma- jority of the shareholders, the question should be referred to a meeting of such shareholders,* or it may be tried ujxju a quo war- ranto.^ 5. J3ut in practice, in this country, it is believed that most of the routine business of railway and other joint-stock commercial companies is transacted through the agency of sub-committees of the board of directors, and that, where the voice of the board is taken it is more commonly done without any formal assembly of the board. And long-established usage as to particular com))anies, in regard to the mode of conducting an election, has been held of binding force in regard to such company.^ And the same course of reasoning might induce courts to sanction a ])ractice, which had become universal from its great convenience, although not strictly in accordance with the principles of the decided cases upon analo- gous subjects, or the results of a priori reasoning. G. The decision of a majority of the board of directors is usually * regarded as binding upon the company ; (c) and the assembling 2 Supra, § 21. Wills r. Murray, 4 Exch. 813. But see Reg. i*. Grim.shaw, 10 Q. B. 747. => Thames Haven Dock & Railway Co. v. Rose, 4 ^lan. & G. 552 ; supra, § 21 ; Wills V. IVlurray, 4 Exch. 843. 4 Tnfra, ^2U. * /«/m. § IGG. « Attornev-Oeneral v. Daw, cited 1 Ves. Sen. 419. It would savor of bad faith, where 'the business of the company has been transacted ui a particular mode, to allow the company to repudiate the acts of its ageiUs because iho transaction has proved disadvantageous, if it might take the benefit of tlifui if they proved successful. (c) State V. Smith, 48 Yt. 2G6; Mich. 53fi; Doyle r. Mizner. lb. 332; Baldwin v. Thunder Bay Boom Co., 42 Baldwin v. Canfield, 20 Minn. 43. [•84] 78 PROCEEDINGS UNDER THE CHARTER. [PART 11. of a majority will be treated as a legal quorum for the transaction of business, unless the charter or by-laws contain some specific pro- vision upon the subject;" and notice to the absent directors will be presumed unless the contrary appears, (d) The general rule upon this subject is, that the act of a majority of a body of public officers is binding ; but that if they he of private appointment, all must act, and, in general, all must concur, unless there is some provision to accept the decision of a majority. In this respect, railway direc- tors certainly come under the former head. The proper distinction upon the general subject seems to be, that where the matter is of public concern, and of an executive or ministerial character, the act of the majority of the board will suffice, although the others are not consulted. But where the function is judicial, involving a determination of some definite question, the whole body must be assembled and act together. If the matter is of public concern, the decision of a majority will bind ; but in private concerns, as arbitrations, all must concur.^ (e) ' Cram v. Bangor House, 3 Fairf . 354 ; Sargent v. Webster, 13 Met. 497 ; 2 Kent Cora. 293 and notes; King v. Whitaker, 9 B. & C. 648; Common- ■wealth V. Canal Commissioners, 9 Watts, 466; Ex parte Wilcocks, 7 Cow. 402; Field v. Field, 9 Wend. 394, 403, where it is held that any number of stockholders are a quorum if the others are properly summoned. But as to the directors, it is requisite that a majority attend. 2 Kent Com. 293; Cahill r. Kalamazoo Insurance Co., 2 Doug. Mich. 124; Holcomb v. New Hope Delaware Bridge Co., 1 Stock. 457. 8 Green v. Miller, 6 Johns. 39; King v. Great Marlow, 2 East, 244; Battye V. Gresley, 8 East, 319; Rex v. Coin St. Aldwins, Bur. Set. Cas. 136; King i». Winwick, 8 T. R. 454. But it has never been held that the entire board of directors must assemble ; it is enough if all be summoned, and a majority attend. See note 7. Edgerly v. Emerson, 3 Fost. N. H. 555. If the doings of directors are not recorded, they may be proved by parol. lb. The presi- dent has a right to vote on all questions to be determined by the president and directors. McCullough v. Annapolis & Elk Ridge Railroad Co., 4 Gill, 58. The records of the clerk of a railway company, of the proceedings of the directors in making calls, may be used as evidence by the company in suits for calls, against one who subscribed for shares and was one of the grantees of the charter and a director at the time of making such calls, and who had exercised the rights of a shareholder from the first. White Mountains Railroad (c/) See supra, note (n). politan Elevated Railway Co. v. Man- (c) Minutes of the action of a di- hattan Railway Co., 15 Am. & Eng. rector at a meeting of the board are Railw. Cas. 1. not to be controlled bv parol. Metro- [*84] §24.] QUALIFICATION OF DIRECTORS. 79 * 7. But where the authority of a quorum of directors is required for the execution of a bond, it must be given at a formal meetiu"-, whereat the members of the quorum arc all present at oncc.'-^ SECTION VII. Qualification of Directors. 1. A contractor cannot be a director. 2. Alitcr of the company's banker. 3 Mortgaging of stock does not dis- qualify. 4. Bankruptcy will not vacate office, nor will absence. 5. Company compelled to fill vacancies in board. § 24. 1. B}- tlic Companies' Clauses Consolidation Act,^ (a) it is provided, that no person interested in any contract with tlie com- pany shall be a director, and no director shall be capable of being interested in any contract with the company ; and if any director, subsequent to his election, shall be concerned in any such con- tract, the office of director shall become vacant, and he shall cease to act as such. Under this statute it was held, that, if a director enters into a contract with the company, the contract is not thereby rendered void, but the office of director is vacated.'^ Co. V. Eastman, 34 X. II. 124. As to the effect of the records of the doings of the corporation, kept by their own officer, being evidence but not indi.sjien- sable evidence of .sucli facts, when proved by third parties, see Hudson r. Car- man, 41 Me. 84; Cotrui v. Collins, 17 Me. 440; Teuob.scot Railway Co. r. 'White. 41 Me. r)12. See also Indianapolis & Cincinnati Railroad Co. v. Jewett, 1(5 lud. 27:1. 9 D'Arcy r. Tamar, Kcthill, & Callingtou Railway Co., 4 II. & C. 4G;J; 8. c. 12 Jur. N. 8. r)48. 1 Stat. 8 & 9 Vict. c. 16. « Foster v. Oxford, Worcester, & Wolverhampton Railway Co., 13 C. B. 200; s. c. 14 Eng. L. & Eq. 306. This case is discussed in a later case in the House of Lords. Aberdeen Railway Co. v. Blakie, 1 Macq. Ap. Cas. 4G1. (a) Unless some special qualifica- tions are required by the charter, any person of sound mind capable of act- ing as agent of another is eligible as a director; and, unless the charter pro- vides otherwise, ownership of shares is not necessary. See In re St. Law- rence Steamboat Co., 44 X. J. Law, 529; Stock's Case, 33 Law J. CIj. 731. The charter usually provides, however, for such ownership. [•85] 80 PROCEEDINGS UNDER THE CHARTER. [PART II. 2. But it lias been held, that being a member of a banking com- j):iiiy, wlio were the bankers and treasurers of the railway, and who, as sucli, received and gave receipts for calls, and paid checks drawn by the directors, will not disqualify one from acting as director, but that this clause only applied to such contracts as were made with the company in the prosecution of its enter- prise.^ 3. Where the qualification of a director consisted in owning a certain number of the shares, the qualification is not lost by a mortgage of the shares.^ 4. Neither the bankruptcy nor absence of a director, and volun- tarily * ceasing to act as such, will put an end to his character of director, unless it be so provided in the deed of settlement.^ 5. If shareholders are dissatisfied with the board of directors not being full, that may be a ground of applying for a mandamus to compel the company to complete the number.^ 8 Sheffield, Ashton-under-Lyne & Manchester Railway Co. v. Woodcock, 7 M. & W. 574; s. c. 2 Railvv. Cas. 522. * Cumming v. Prescott, 2 Y. & Col. Ex. 488. 5 Phelps V. Lyle, 10 A. & E. 113. But if one abscond from his creditors the office is thereby vacated. Wilson v. Wilson, 6 Scott, 540. « Thames Haven Dock & Railway Co. v. Rose, 3 Railw. Cas. 177; s. c. 4 Man. & G. 552, per Maule, J. ; Mozley v. Alston, 1 Phillips, 790. [*86J §^5.] PREROGATIVE FRANCHISES. 81 *CnAPTER V. PREROGATIVE FRANCHISES. 1. Control of internal communication in a state a prerogative franchise. 2. Grant tliereof confers powers pertain- ing exclusively to sovereignty, as tak- ing tolls, and tiie right of eminent domain. § 25. 1. Railways possess also many cxtraortlinary powers or franchises wliicli partake more or less of the quality of sovereignity, and which it is not competent for the legislature even to delegate to ordinary corporations. These are sometimes called the pre- rogative franchises of the corporation. They exist in banks, which practically supply the currency of the country or its repre- sentative, and railways, which have already engrossed the chief business of internal communication in this country, and almost throughout the civilized world. And both currency and internal communication between different portions of a state are exclusively the prerogatives of sovereignty. 2. In saying that it is not comjietent for the legislature to con- fer prerogative franchises upon all eor])orations, nothing more is intended than that these prerogative franchises do not appertain to all the operations of business, and must therefore of necessity be limited to those persons, whether natural or artificial, which an; occupied in matters of a sovereign or prerogative character, and which thus render an equivalent for the franchises conferred.' This subject will be discussed more in detail under the titles of Tolls and Eminent Domain. ^ State V. Boston, Concord & ^Montreal Railroad Co.. 2.") Vt. 433; s r. 1 Redf. Am. Railw. Cas. 81. The rii^lit to luiilil and use a railway, anck Island & Pacific Railroad Co., 51 Iowa, 25. [*94] 88 BY-LAWS AND STATUTES. [PART II. 3. Such superintendent may exclude from the stations and grounds persons who persist in violating the reasonable regulations prescribed for their conduct, and thereby annoy passengers, or interru])t the officers and servants of the company in the discharge of their duty. Thus, where the entrance of innkeepers and their servants into a railway station to solicit passengers, to go to their houses, produces such effect, they may be excluded from coming within the station ; and if, after notice of a regulation to that effect, they attempt to violate it, and after notice to leave, refuse to do so, they may be forcibly expelled by the servants of the company, using no unnecessary force. 4. And where an innkeeper had been accustomed to annoy pas- sengers in this manner, and had been informed by the superintend- ,ent of the station that he must do so no more, but still continued the practice, and afterwards obtained a ticket for a passage in the cars, with the bona fide intention of entering the cars as a pas- senger, and went into the station on his way to the cars, and the superintendent, believing he had entered for his usual purpose, ordered him to go out, and he did not exhibit his ticket, nor give notice of his real intention, but pushed forward towards the cars, and the superintendent and his assistants removed him from the station, using no unnecessary force, the removal was held justifi- able, and not an indictable offence.^ 5. But the superintendent cannot remove a person from the station and grounds of the company, merely because such person, in the judgment of the superintendent and without proof of the fact, violated the regulations of the company, or conducted himself * offensively towards the superintendent.^ And it was said if such person is removed for an alleged violation of the regulations of * the company, and it finally is shown that he did not in fact 2 Commonwealth v. Power, 7 Met. 596; Markham v. Brown, 8 N. H. 523. « Hall V. Power, 12 Met. 482; 8. c 1 Am. Railw. Cas. 440. From this case and Commonwealth v. Power, 7 Met. 596, it would seem, as the points are stated, that as to justification of a defendant who acted in good faith and upon probable cause, the court distinguished between a civil suit for damages and a prosecution for assault and battery; but the distinction would seem to be unwarranted and the court did not intend to make it. The law as to the power of the superintendent to remove persons conducting themselves offensively or in a way to interfere with persons properly at the station, &c., is well stated by Shaw, C. J., in Commonwealth v. Power. [*95, *9G] § 27.] BY-LAWS REGULATING STATIONS AND GROUNDS. 89 violate any of sucli regulations, he may recover damages of the sui)erintendent of the station by vhusc order he was removed, notwithstanding such superintendent acted in good faith. And in such case, it is not competent to show that the plaintiff had been guilty of former violations of other regulations of the company. G. Under the English statute of 17 ct 18 Vict., requiring among other things that the Superior Courts of Westminster Hull shall enforce the duty of railway companies in regard to their tralhc in goods and passenger transpoi-tation, it was held a ])roper ground for granting a rule to show cause why an injunction should not issue, that at one of the stations of the company, where an impor- tant junction with other roads occurred, no covered place was provided for the accommodation of the passengers. But the English Railway Trafiic Act does not justify the courts in reijuir- ing the companies to make the same charges, or to afford the same facilities in regard to return tickets of a particular class, on one of their branches, which they do upon others. To constitute in- equality of charge, it must be for passing over the same line, or the same part of the line.* * 7. To justify the courts in interfering to re(piire the com- l)anies constituting a continuous line to run througli trains, it must be shown that public convenience requires it, and tiiat it can reasonably be done. And they will not interfere in such cases where there is another route where through tickets may be obtained, although somewhat longer, no additional cost or serious loss of time being thereby incurred, and there being no general complaint of public inconvenience on that account.^ 8. A railway freight station or warehouse kept by a railway company for the storage of goods transported liy them, is not exempt from the process of search warrant under the statute against the keeping and sale of spirituous liipiors ; nor is it neces- sary that such warrant should be executed during the usual busi- ness hours, or that the officer should consult the person who has charge of the station.^ * Caterham Railway Co. v. London & Brigliton & South Coa-st Kailway Co., 40 Eng. L. & Eq.'s.lO; s. c. 1 C. B. n. s. 410. ' Barret v. Great Northern Railway Co., 1 C. B. N. s. 423. * Androscoggin Railway Co. v. Richards^ 41 Me. 233. [•97] 90 BY-LAWS AND STATUTES. [PART II. 9. The Supreme Court of Vermont" (a) decided that prima facie railway stations were open to all ])ersons, but the company may revoke such implied license to all, and exclude all except such as have legitimate business there growing out of the operation of the road or with the oflicers or employes of the company. They may direct all others to leave the station, and, on refusal, may remove them. It is the duty of such persons as desire to remain in such stations, for the purpose of taking the cars or for any other lawful purpose, to make known the same to the officers and employes of the company on request. And if such is the regulation of the company, one purposing to become a passenger may be required to purchase his -ticket in order to remain in the station. This right of entering the station to take the cars can only be in con- formity with the regulations of the company, and within a reason- able time only before the departure of the trains, which will depend upon the particular circumstances of each case. It is not requisite the person should enter the station with the purpose of taking pas- sage : it is enough that he entertains the purpose at the time he refuses to leave, and conducts himself in other respects in con- formity with the regulations of the company. 10. As to such persons as have lawful business with the road and just occasion to come upon the platforms about passenger stations, including passengers and those who come to see them off or to receive them, as well as the employes of the company, there is a duty resting upon the company to maintain the structure in such strength as to support all who may thus have occasion to go upon it.^ (J) ' Harris v. Stevens, 31 Vt. 79; Gillis v. Pennsylvania Railroad Co., 59 Penn. St. 129. 8 Gillis V. Pennsylvania Railroad Co., 59 Penn. St. 129. (a) And see supra, note (a). (b) See infra, § 192, note (a). [*97J §28.] DY-L.VWS OR RULES AS TO, PASSENGERS. 91 ♦SECTION III. By-Laivs or Rules as to Passengers. 1. By-laws considered as statutes. 2. Considered as rules, or regulations. o. Requiring larger fares for shorter distances. 4. Requiring passengers to go through in same train. n. 5. Discussion of cases in point. 5. Arrest of passenger by company's servants. 6. How far company responsible. 7. Company liable for act of servant. 8. By-law must be published. 9. Excluding merchandise from passen- ger-trains. 10. Discrimination between fare paid in cars and fare paid at stations. n. (c) Regulations requiring passen- gers to buy and exhibit tickets, &c. Liability for excess of force. Officer de facto may enforce rules of company. Company cannot enforce rule against passenger, when itself in fault. 14. Consent of company to tariff of fares, iiow presumed. Discrimination on the ground of color. liegulations and duties of street rail- ways. 15, IG § 28. 1. A distinction is sometimes made between bv-laws and orders or regulations, the former being supposed, in strictness of language, to have reference exclusively to tlie government of their own members and of their corporate ofliccrs.^ And it is true that such other ordinances as any owner of the buildings and grounds about a railway station, employed in carrying pas- sengers, might find it convenient to establish, are certainly not what is ordinarily understood by the by-laws, or statutes, of the corporation. 2. But in the English cases they are both called by-laws.^ Thus a by-law, that each passenger, on booking his place, should bo furnished with a ticket, to be delivered up before leaving the company's premises, and that each passenger, not jtroducing or 1 Shaw, C. J., in Commonwealth v. Power, 7 Met. 596, GOl. 2 Chilton V. London & Croydon Railway Co., 16 ^L & W. 212 ; 8. c. 5 Railw. Cas. 4. It would seem from the ojiiiiion of Parke, B., that the by-law was regarded as valid, but as imperfect, in not subjecting the passenger to a penalty in terms. The other judges doubted whether tlio act was intended to give the company power to imprison the plaintiff, or any one. except for some offence again.st the act. But all seemed to concur in the opinion that the pas- .senger was bound to comply with the regulation, or submit to tlie alternative. State V. Overton, 4 Zab. 435; Baltimore & Ohio Railroad Co. v. Blocher, 27 Md. 277. [•98] 92 BY-LAWS AND STATUTES. [PART II. delivering up his ticket, should be required to pay faro from the })lace wiicncc the train originally started, was held not to be a by- law imposing a penalty .^ And that therefore the non-production of the ticket, with which a passenger had been furnished, and his refusal to pay fare from the place whence the train started, * did not justify his arrest, but only rendered him liable to pay fare from the place whence the train started. 3. But in an English case,^ where the company had made a legal by-law, that any passenger who should enter a carriage of the company, without first having paid his fare, should be sub- jected to a penalty not exceeding 40s., a passenger, desiring to go to Diss station, where the fare was 7s., procured a ticket for Nor- wich, a more distant station on the line, but where the fare was but 5s., in consequence of competition, and entered the carriage accordingly, and at Diss offered to surrender his ticket, but refused to pay the difference in fare ; he was prosecuted for the penalty, and a majority of the Court of Queen's Bench held he was not liable on the ground that he had paid his fare before entering the carriage. Lord Campbell said, " I cautiously abstain from express- ing any opinion, as to the power of the company to make special regulations or by-laws, so as to enforce larger fares for shorter distances." — " Had not Frere, within the meaning of the by-law, paid his fare, before he entered the carriage ? I think he had. He had paid the full fare from Colchester to Norwich, — all that was required of him; and he cannot be said to be a person who had entered the company's carriage without payment of fare." * 4. It had been held that a regulation requiring passengers to go through, in the same train, and that if one do not, requiring fare 8 Reg. V. Frere, 4 Ellis & B. 508; s. c. 29 Eng. L. & Eq. 143. ■* But the argument of Lord Campbell on this point does not seem al- together satisfactory. Whetlier the passenger had paid his fare depended on the validity of the by-law, and could not be fairly determined on any other basis. Frere had paid fare to Norwich, but had not paid fare to Diss, unless the by-law was void ; so that the validity of the by-law did seem to be neces- sarily involved in the decision. And the decision of the court, although not professing to do .so, did virtually disregard it. For if the by-law was valid, Frere had no more paid his fare than if he had taken a ticket to a station short of his destination. And if the by-law meant anything sensible, it meant payment of fare to the intended destination. [*99] § 28.] BY-LAWS on RULES AS TO PASSENGERS. 98 for tho remainder of the route, is vulid.'^ (a) * And where the ticket was marked " good only two days after date," it was held to he •^ Cheney i\ Boston & Maine Railway Co., 11 Met. 121; see 2 Rcdf. Am, Railw. Cas. 447. This case was as follows: The passenger bought a ticket not knowing of the regulation. The conductor told him and offi-red to refund his money, deducting a sum in proportion for the distance already travelled. The passenger refused, and demanded his ticket in exchange for the conduc- tor's check, marked " good for this trip only." lie stopped by the way, and went on the same day in tlie next train; and when he presented the check, it was refused, and tare collected. "J'he court held that he could not recover the money of the company, and that it made no difference that he was not aware of the regulation at tlie time he purchased his ticket. This subject is much discussed in a case in New Jersey, with a like conclusion. It is there said that the company may discriminate between way and through fare, unless prohibited by law. State v. Overton, 4 Zab. 434. The same rule is held to apply to excursion tickets sold and marked " good for one passage on this day oidy." It cannot be used on any other day, and if the holder refuse to pay his fare, he may be put off the train, and may not return on producing a regular ticket. State v. Campbell, '6 Vroom, 309. In Pier v. Finel, 21 Barb. 514, where a person was put off for refu.sal to pay fare, having, and offering to the conductor, a ticket, dated a few days be- fore, and marked "good for this trip only," but uncancelled, — it was held that the ticket was prima facie evidence that the holder had paid the regular fare, and had a right to be transported, at some time, on some passenger train; tliat the presumption was, that it had never been used ; and that it imjHjsod on the company the duty to so transport the holder. It was also held that the in- dorsement, " good for this trip only," had reference to no particular trip, or any particular time, but only to some one continuous trip. This decision does not seem to meet the whole question ; that is, whether such a regulation was valid and binding. There can be no doubt that such a ticket is generally un- derstood to entitle the holder to a passage only on that day, if not only in the very next train. It seems to be finally settled that a passenger who accepts a ticket, or check, marked "good for this day and train only," has no right to leave the train, at a way station, and demand a passage on another, and that if he do ."^o, and re- fuse to pay the fare for the remainder of the route, the conductor may lawfully j'ut him off the train. See ]McClure v. riiiladelphia, Wihniiigton .S: Haltimore UaihaodCo., 31 Md. 532. Nor has the ticket-master at a way station any (n) Cody V. Central Pacific Rail- & Western Railroad Co , 7 Hun. t>70; road Co., 4 Sawyer, 114. So is such a Hill r. Syracuse, Binghnmton & New regulation coupled with a limitation as York Railroad Co., 63 N. Y. 101; to time for which the ticket shall be Powell v. Pittsburg, Cincinnati & St. pood. Livingstonr.Grand Trutdv Rail- Louis Railroad Co., 25 Oliio St 70; way Co., 21 Lower Canada Jur. 13. Grand Trunk Railway Co. v. Cun- AndseeGalev. Delaware, Lackawanna ningham, 11 Lower Canada .Tur. 1U7- [*100] 94 BY-LAWS AND STATUTES. [PART II. evidence of a contract to that effect between * the railway and the purchaser, and to be of no force after the expiration of the term.*^ (b) authority to extend a conductor's check. lb. But the conductor may give a passenger leave to stop by the way, while riding on such a ticket, and by in- dorsiii"" his check make it good for an after ti-ain. And where tickets for extended routes are issued in coupons, it is commonly understood that the passenger may stop at the end of any of the sections for which a coupon is issued, and complete the passage at any time within reasonable limits. And the same rule applies to season tickets, which the holder is in terras required to present, when demanded. If the holder fail to present the ticket when de- manded, he must pay fare or consent to be put off the train. Downs v. New York & New Haven Railway Co., 36 Conn. 287. And it was here held to be no valid excuse for not presenting the ticket, that the holder had accidentally left it at home and therefore had it not in his power to present it. In the case of Dietrich v. Pennsylvania Railway Co., 29 Philad. 212, it was held that rail- way companies may make reasonable rules and regulations in regard to passen- ger transportation, binding on passengers whether known to them or not; and therefore that a drover's ticket, allowing the holder to ride between the points named in a continuous passage, without stopping at intermediate places, can only be so used. So, also, if the passenger refuse to surrender his ticket in exchange for the conductor's check, according to the regulations of the company, and leave the cars at any point, without surrendering his ticket, he is liable to pay fare for the distance he has ridden; and if he refuse to surrender his ticket, or pay fare, the conductor may expel him from the cars. Northern Railroad Co. v. Page, 22 Barb. 130. But passengers are not obliged to surrender their tickets without having a check in exchange by which they may be able to show that they have paid fare. State v. Thompson, 20 N. H. 250. In Ilibbard v. New York & Erie Railway Co., 15 N. Y. 455, it was held, that a regulation, made by a railway company, requiring passengers to exhibit their tickets whenever re- quested by the conductor, and directing that those who refused be expelled from the cars, was reasonable and valid; and that the binding force of such a « Boston & Lowell Railroad Co. v. Proctor, 1 Allen, 267; Shedd v. Troy & Boston Railroad Co., 40 Vt. 88. The same doctrine is maintained in Johnson V. Concord Railroad Co., 46 N. H. 213. And it was there held that ignor- ance of the by-laws or regulations of the company will make no difference; and that the conductors having waived them is no evidence of repeal unless known to the governing officers of the company. (6) So a ticket dated and with passage, good if used within a certain the printed words, " good for this day time, is good if the passage is begun only," on its face, was held not good within the time. Lundy v. Central on the day after its date. Boice v. Pacific Railroad Co., 18 Am. & Eng. Hudson River Railroad Co., 61 Barb. Railw. Cas. 309. 611. But a ticket for a continuous [*]0t] § 28.] BY-LAWS OR RULES AS TO PASSENGERS. i>;j And where the regulations of the * company allow the conductors, by making a memorandum on a ticket, to permit the passenger to stay over and pass upon another train, and one stayed over without ])rocuring such memorandum, it was held that another conductor, to whom he presented his ticket in attemj)tiiig to pass at a subsequent time, was justified in demanding fare, and putting the passenger off the train upon his refusal to i)ayJ 5. In one case,^ where the plaintiff, upon the information of the station-clerk that he might return at a given hour upon an excur- sion ticket, purchased such ticket and took the train named by such clerk to return, but the train did not pass through ; and at the • place where it stopped the station-clerk demanded 2s. Gd. more, saying he should not have taken that train ; payment being refused, the superintendent took the plaintiff into custody. The plaintiff's attorney having written the secretary of the company, asking compensation, he requested to be furnished with the date of the transaction, and promised to make inijuirics. lie also regulation was matter of law to be decided by the court. And it was further held that under such a regulation, a passenger was bound, on request, to ex- hibit his ticket a second time, the train having in the mean time passed a station, but that if the conductor knew he had paid his fare he had no riglit to expel him from the cars. It was also intimated, that a passenger who has thus forfeited his right, cannot regain it by exhibiting his ticket after the train is stopped for the purpose of putting him off; and also, that the company would not be liable for a wrong construction of the regulation by the conductor and the consequent wrongful expulsion of a passenger, nor for an excess of force. Where a person gives up his ticket to the conductor, he cannot, at an inter- mediate station, by virtue of the subsisting contract, leave his seat in the train, and claim a seat in another. Cleveland Railroad Co. i'. Bartram, 11 Ohio St. 457. ' Beebe v. Ayres, 28 Barb. 275. 8 Roe V. Birkenhead, Lancashire, & Cheshire Junction Railway Co., 7 Exoh. 3(1; 7 Eng. L. & Eq. 51G; s. c. G Railw. Cas. 795. And it ha^ been held that a steamboat proprietor might exclude one from his boat. whik> cm- ployed in carrying passengers, if such person was the agent of a line of stages, the rival of that which, by contract, carried in connection with his boats, the object of such person being, at the time, to solicit passengers to go by the rival line of stages, the jury having found tliat the contract was Ixmn fule and rea- sonable, and not entered into for the purpose of an oppressive nionojKily, and that the regulation excluding jtlaintiff was necessary in order to carry the con- tract into effect. Jencks v. Coleman, 2 Sumner, 221. Ikit a contract not to carry passengers coming by a particular line will not excuse the carrier from carrying such passenger. Bennet v. Dutton, 10 N. H. 481. [*102] 96 BY-LAWS AND STATUTES. [PART II. stated verbally that it was an awkward business, and the blame would fall u{)ou the station-clerk who gave the plaintiff the false information, and oiTcrcd to return the 2s. 6c?. It was held that, as there was no evidence of the authority of the defendants to make the arrest, and none that they liad expressly or impliedly authorized or ratified it, it must be regarded as the mere tortious act of the servant, for which he alone was responsible. 6. And in a somewhat similar case,^ in the Exchequer Chamber, * where the plaintiff below had been taken into custody by a rail- way inspector of the defendants, charged with having no ticket, refusing to pay fare, intoxication, and assaulting the inspector; at the hearing before the magistrate, the solicitor of the company attended to conduct the proceedings ; and it was held that such attendance was no ratification by the company, it not appearing that the facts were known to the company. These cases afford more latitude for corporations to escape from liability for the acts of their agents and servants, while employed in the prosecution of their business, than is commonly allowed in this country .^'^ 7. There are many cases in this country where it has been held that trespass will not lie against a corporation for the act of its agents ;^i but this is not the prevailing rule here, where the ser- vant acts within the apparent scope of his authority, and where his acts would bind the principal, being a natural person. 8. An English railway company ^ having power by statute to ^ The Eastern Counties Railway Co. v. Broom, 6 Exch. 314; 2 Eng. L. & Eq. 40G; s. c. 6 Railw. Cas. 743. 1° Infra, § 225 and notes. See, also, infra, §§ 169, 182. And in Coppin v. Braithwaite, 8 Jur. 875, it is said to have been ruled by Rolfe, B., at Nisi Prius, that a carrier having received a pickpocket as a passenger on board his vessel, and taken his fare, cannot put him on shore at any intermediate place, so long as he is guilty of no impropriety. " Philadelphia, Germantown, & Xorristown Railroad Co. v. Wilt, 4 Whart. 143; s. c. 2 Am. Railw. Cas. 254; Oit v. United States Bank, 1 Ohio, 30; Foote V. Cincinnati, 9 Ohio, 31. Comstock and Browx, JJ., in Hibbard v. New York & Erie Railway Co., 15 N. Y. 455. The company is responsible for the act of its conductors in forcibly ejecting a passenger from the cars on the ground "that he was drunk, when in fact he is sober, Iliggins v. Water- vliet Railroad Co., 4G N. Y. 23. " Great Western Railway Co. v. Goodman, 11 Eiig. L. & Eq. 546. In Ed- wards V. London & North Western Railway Co., Law Rep. 5 C. P. 445, it was held, that the head porter, having charge of the station in the absence of the station master, has no implied authority to give in charge to a peace officer [*103] § 28.] BY-LAWS OR RULES AS TO PASSENGERS. 97 make by-laws, which were to be painted upon a board and hunj^ up at the stations, and to be bindinj^ upon all parties, made, among others, a by-law that " first-class fjassengcrs shall be allowed one hundred and twelve pounds, and second-class j)a8- sengers fil'ty-six pounds luggage each, and that the company will not be responsible for the care of the same unless booked and paid for accordingly." It did not appear that the plaintifT knew of the by-law, or that it had been jjostcd up as rcfpiired. 'J'lie jilaintiff became a passenger, and gave his luggage to the servants of the company, and it had been stolen. It was held that the com{)any were liable, unless they showed the by-law hung up at the stations, as required by the statute, or else brought it home to the knowledge of the jjlaintiff. 9. A by-law excluding merchandise from the passenger-trains, and confining its transportation to the freight-trains, was lield * reasonable. The company are not bound to carry a passenger daily upon his paying fare, when his trunk or trunks contain mer- chandise, money, and other valuable matter known as " express matter." ^^ 10. Tn a case in Connecticut, it was held by a divided court, that where a railway company established and gave notice of a discrimination of five cents between fares ])aid in the cars and at the stations, the regulation was valid, and that where a passenger refused to pay the additional five cents in the cars, the conductor might lawfully put him out of the cars, using no unnecessary force. ^* (6') Upon the trial of an action for such expulsion, it was one whom he suspects of stealing the company's property, and that if he give in charge one who is innocent tlie company will not be responsible. As to tlio autliority of special constables in the employ of railway companies in making arrests, and what will amount to probable cause, see Walker v. iSoulh Eastern Railway Co., Law Hop. 5 C. P. GtO. ^^ Merrilicw v. IMilwaukee & jMi.ssissippi Railroad Co., 5 Am. Law Reg. 364. " Crocker v. New London, Willimantic & Palmer Railroad Co., 21 Coim. 249. The court were so nearly equally divided in this case, that it cannot bo regarded as of much authority. But the proposition is supported by other cases. Hilliard r. Goold, 3i N. U. 2;i0 ; State i-. C.oold, 5:5 Me. 27f); Chi- cago, Rurliiigton & Qniney Railroad Co. r. Parks, 18 III. 400. And the last named of these cases holds that where the pas.'^enger pays from station to sta- (c) Wilsey v. Louisville & Nash- entitling the pa«.<;enger to a di.scount ville Railroad Co., 26 Am. & Eng. from the advertised rates where he pur- Railw. Cas. 258. So of a regulation chases a ticket. Nor doe? it viulata VOL. I. -7 [•104] 98 DY-LAWS AND STATUTES. [part II. held, that the plaintiff was not entitled to recover upon proof that he went to the ticket-office of the company a reasonable time before the train left, to procure a ticket; that the office was closed, and so remained till the train departed ; and that he so informed the conductor, before his expulsion from the cars. tion, the additional five cents may be exacted at eacli payment. And the passenger is bound by such regulation whether he knew of it or not. State V. Goold, supra; Chicago & Alton Railroad Co. i'. Roberts, 40 111. 503 ; Illi- nois Central Railroad Co. v. Sutton, 42 111. 438; Chicago & Northwestern Railway Co. v. Peacock, 48 111. 253; infra, § 124, pi. 13. The only point of doubt seems to be as to the duty of the company, in mak- ing such discrimination, to give passengers reasonable opportunity to obtain tickets at tlie lowest rate of fare. The generally received opinion is that the company is so bound. See infra, note 15. a statute providing that the rates of fare shall be the same for all persons between the same points. Swan v. Manchester & Lawrence Railroad Co., 132 Mass. 116; Hoffbauer v. Daven- port & Northwestern Railway Co., 52 Iowa, 342; Bordeaux v. Erie Railway Co., 8 Hun, 579. A rule iirohibiting riding on freight trains without tickets is reasonable and valid. St. Louis & Southeastern Railway Co. v. Myrtle, 51 Ind. 5GG; Falkner v. Ohio & Mississippi Rail- way Co., 55 Ind. 309; Lake Shore & Michigan Southern Railway Co. v. Greenwood, 79 Penn. St. 373; India- napolis & St. Louis Railroad Co. v. Kennedy, 77 Ind. 507; Law v. Illi- nois Central Railroad Co., 32 Iowa, 531. But reasonable facilities must be provided for the obtaining of tick- ets. Evans v. Memphis & Charleston Railroad Co , 56 Ala. 246. A regulation, that passengers not showing tickets should be charged fare from the station from which the train started, held unreasonable as against a traveller acting in good faith, and void. London & Brighton Railway Co. p. Watson, Law Rep. 3 C. P. 429. [*105] A regulation requiring passengers to show season tickets is a reason- able one. Cresson v. Philadelphia & Reading Railroad Co., 11 Phila. 597; and see Cooper v. London, Brighton & South Coast Railway Co., Law Rep. 4 Exch. 88. So is the regulation requiring pas- senger stopping over to get a stop-over check. Yorton v. Milwaukee, Lake Shore & Western Railway Co., 54 Wis. 234. And see Lake Shore & Michigan Southern Railway Co. v. Pierce, 47 Mich. 277. So is a regula- tion limiting stop-over checks. AVentz V. Erie Railway Co., 3 Hun, 241. So is a regulation requiring excursionists to go by the excursion train. McRae V. Wilmington & Weldon Railroad Co., 88 N. C. 526. And so is a regulation requiring the conductor to detach the ticket. Norfolk & Western Rail- road Co. V. Wysor, 26 Am. & Eng. Railw. Cas. 234. But rules of a com- pany that a certain ticket shall be good only on certain trains are not irrebuttably presumed to be known to the passenger when not on the ticket. Lake Shore & Michigan Southern Railroad Co. v. Rosenzweig, 26 Am. & Eng. Railw. Cas. 489. § 28.] BY-LAWS OR RULES AS TO PASSENGERS. 00 Tho followinc^ propositions arc maintained in tlio opinion of tlie conrt: (1) That the defendants, as common carriers, were under no lej2:al obligation to furnish tickets, or to carry passengers for less than the sum demanded, if the fare was jiaid in the cars. * (2) That the plaintiff's claim rested solely upon the assumj)- tion, that the defendants had undertaken to carry for the less sum, on certain conditions, which they had themselves defeated. (3) That the regulation did not constitute a contract, but a mere pro- posal, which they might suspend, or withdraw at any time. (4) That such proposal was withdrawn by closing the defendants' office, and the retirement of their agent therefrom. (5) That the proposition being withdrawn, the parties were in the same condition as before it was made ; the defendants continuing com- mon carriers were bound to carry the plaintiff for the usual fare paid in the cars, and not otherwise. (G) That the plaintiff, re- fusing to pay such fare, was properly removed from the cars. It was further held by all the judges that if the plaintiff was wrongfully removed from the cars, he might lawfully re-enter them, and if in attempting to do so he received the injury com- plained of, he was entitled to recover, unless he was himself guilty of some want of care, which produced, or essentially contributed to produce, the injury. But if the expulsion was lawful, or if the plaintiff was guilty of want of care as stated, he could not recover. The majority of the couit also held, that if any of the defend- ants' employes whom the conductor called to his aid, in putting and keei)ing the plaintiff off the cars, intentionally kicked the plaintiff in his face, without the knowledge or direction of the conductor, the defendants are not liable for the act, in trespass. Hut the more reasonable view in regard to the mode of enforcing a discrimination between fares paid in the cars and at the stations is, that such a regulation, however proper in itself, cannot legally be enforced by the company unless they have afforded every firoper and reasonable facility to the passenger for {irocuring his ticket at the station. ^^ " St. Louis, Alton, & Cliicago Railroad Co. v. Dalhy, 19 UK 35.3; Chicaj^o, Burlington, & Quincy Railroad Co. v. Parks, 18 III. 4U0. In St. Louis, Alton, & Terre Haute Railroad Co. v. South, 43 111. 17G, it was held that the cases were not to be construed, as requiring companies to keep open their ticket oilices, beyond the time fixed bv their tinie-tubles for tho departure of .-» train, [nooj 100 BY-LAWS AND STATUTES. [PART II. * 11. There is no question, upon general principles, in an action or indictment against the conductor of a railway train lor unlaw- fully expelling a passenger, where the evidence shows a right to make the expulsion, that the conductor may nevertheless become liable for the manner of doing it. This is a question to be deter- mined by the jury, and cannot ordinarily be decided by the court, as matter of law. If there be an excess of force, or it be applied in an unreasonable and improper manner, the conductor is lial)le for such excess, to respond in damages to the party, and also to public prosecution for a breach of the peace.^^ 12. The authority of the conductor of a railway train, or of any other servant of the company, to enforce their regulations, does not depend upon the formal mode of his appointment, but upon the fact of his being employed at the time in the particular office.i*^ 13. In an English case,^'^ where the railway company had es- tablished a by-law requiring all passengers to purchase tickets before entering the cars, and to show the tickets when required so to do, and to deliver them up on request, before leaving the com- pany's premises, and the plaintiff took tickets for himself and three boys and three horses, by a certain train, which was afterwards divided by the company's servants into two parts, one being com- posed of passenger carriages, and the other of horse boxes ; and the plaintiff retained all the tickets and travelled by the first- but only for a reasonable time before the time so fixed; that they must fur- nish a convenient and accessible place for the sale of tickets, and afford the public a reasonable opportunity to purchase them; and that parties who did not avail themselves of the opportunity, must submit to pay the extra fare required by the general regulations of the company, or on refusal might be expelled from the cars. It was also held that the rule giving companies the riglit to discriminate between fares paid in the cars, and at the stations, required them, very properly, to give a reasonable opportunity for procuring tickets at the lower rate. The same rule is maintained in Du Latirans v. Tacific Railroad Co., 15 Minn. 49. And it was there said that what is a reasonable opportunity is a question for the jury. 16 Hilliard v. Goold, 34 N. H. 230; State v. Ross, 2 Dutcher, 224. In the latter case where it appeared that the conductor kicked a passenger who, in a state of intoxication, persisted iu attempting to get on the train, the court held a conviction proper. So, too, where the conductor put one off the train ■while it was in motion, the act of the conductor was held to bind the company for damages. Kline v. Central Pacific Railroad Co., 37 Cal. 400. " Jenniucrs r. Great Western Railway Co., 12 Jur. n. s. 331. [*106] § 28.] BY-LAWS OR RULES AS TO PASSENGERS. lUl mentioned portion of the train, so tliat tlie boys, who were h.ft to go in the other portion of the train, were unable to produce their tickets wlien requested, and were accordingly excluded bv the company's servants from entering the horse boxes, — it was held a breach of contract by the company, for which they were responsible. * 14. A tariff of fares or freight must have the sanction of the corporation to become of binding obligation. But if established by the president, and the business of the company transacted with reference to them, without objection, the consent of the company will be presumcd.^^ 15. There has been considerable controversy in the country, how far railway companies have the legal right to require colored pas- sengers to sit in a particular car, or portions of the car. That right was maintained by the Supreme Court of Pennsylvania. i** But it has been denied in other courts. The recent amendments of the United States Constitution have been supposed by some to settle this question. There seems to be no sufficient reason why any such discrimination should now be made, and when the un- fortunate animosities growing out of the former existence of slav- ery in the country shall have effectually subsided, it is to be hoped that any such questions will cease to be raised. Persons of the highest culture and refinement, as a general thing, feel less sensi- tive on this subject than others, and their example will constantly tend to lead others in the right path. {J) " Westchester Railroad Co. v. Miles, 55 Tenn. St. 209. ((I) See Central Railroad Co. v. comfort, order, and safety of passen- Green, 80 Penn. 4'21, 427. P"'or rul- gers, a company may make a rule ings under the Civil Rights acts, see setting apart cars for the exclusive use Gray v. Cincinnati Southern Railroad of ladies and gentlemen accompanied Co., 11 Fed. Rep. 683, asserting the by ladies. Chicago & Northwestern equal rights of colored persons, and Railway Co. v. Williams, 55 111. 185. Smoot V. Kentucky Central Railway And it would seem that though in tho Co., 1:5 Fed. Rep. 3:57, holding that absence of rule a company might not Congress has no power to protect such lawfully from caprice or prejudice ex- a right, — the right of a colored woman elude a colored woman from a partic- to ride in the ladies' car. And see ular car, it might reasonably make a Cully V. Baltimore & Ohio Railroad rule requiring colored jwople to occupy Co., 1 Hughes, 536. It seems, however, separate seats in other care equally that under its undoubted power to safe and comfortable. lb. Equality of make reasonable rules tending to the accommodation does not mean identity *[107] 102 BY-LAWS AND STATUTES. [PART II. 16. A regulation of a street-railway company requiring passen- gers to enter and leave the cars by the rear platform is highly just and reasonable ; and a passenger who suffers injury from the needless violation of such regulation has no claim for compensa- tion against the company, even when the driver was in fault. And the permission of the driver will not excuse the passenger in the violation of a known rule of the company.^^ Such company owes its passengers the highest degree of care, but only ordinary care to the general publie.^*^ 19 Baltimore City Passenger Raih'oad Co. v. Wilkinson, 30 Md. 224. 2° Pendleton Street Railroad Co. v. Shires, IS Ohio St. 255. See Cleve- land, Columbus, & Cincinnati Railroad Co. v. Terry, 8 Ohio St. 570. of accommodation. Separation of dif- Eng. Railw. Cas. 25G ; Murphy v. ferent classes in different cars may be Western & Atlantic Railroad Co., lb. reasonable. Saywood v. Memphis & 258. Charleston Railroad Co., 21 Am. & [*107] §29.] CAPITAL STOCK — LIMITATIONS. 103 ♦CHAPTER VII. CAPITAL STOCK. SECTION I. Limitations. 1. General rights of sliareholders. I 3. Cannot mortgage, unless on special li- 2. Capital stock not the limit of property. I cense of the legislature. § 29. 1. All joint-stock companies are allowed to raise a certain amount, and sometimes an indefinite amount, of capital, by the subscription of the members; the corporation in fact generally con- sisting of the contributors of stock and their assignees, the stock being divided into shares, transferable according to the by-laws and charter of the corporation, entitling the owner for the time being to the rights of voting, cither in person or by pro.KV, as a general thing, and to a participation in the profits of the enterprise.' 2. The capital stock of a corporation is not necessarily the limit of its property.^ It is not uncommon for charters of stock com- panies to contain restrictions and limitations in regard to their right or capacity to hold real estate, and sometimes even in regard to personal estate. 3. But railway companies, being created for the purpose of car- rying into effect a definite enterprise, must almost of necessity liave the power to issue sufficient stock to accomplisli the under- taking, or to raise the requisite funds in some other mode, as by loan and mortgage. And where the stock is limited, and often where it is not, these corporations have been compelled, either to abandon the enterprise, or to resort to loans and mortgages, which being in some sense a desperate mode of raising funds, as long a.s the company have power to issue stock, could only be justilicd, * ordinarily, by a strict and fatal necessity, and by permission of the legislature, as is generally considered.^ 1 Waif. Pvailw. 252; Penobscot Railroad Co. v. White. 41 Mo. .512. ■ Barry v. Merchants' Exchange Co., 1 Sandf. Ch. 2S0; South Bay Meadow- Dam Co. v. Gray. 30 Me. 547. 8 Infra, ^§148, 234. 235. [*108, •109] 104 CAPITAL STOCK. [PART II. SECTION II. Conditions precedent, which the Public Authorities may enforce. 1. Stock, if limited, must all be subscribed. | 2. Payments at time of subscription. § 30. 1. If, by the charter, the stock of the company is divided into a certain number of shares, that number cannot be changed by act of the company. ^ And if the charter either expressly or by legal intendment require that a certain number of shares be subscribed before any assessment is laid, no valid assessment can be laid until that number be hona fide subscribed, and if it is attempted the company may be dissolved.^ (a) 2. And where the general law of the state, or the particular charter, requires a given proportion of subscriptions to be paid in at the time of subscription, this condition must be complied with, or the subscriptions will not fulfil the condition precedent.^ 1 Salem Mill-Dam Co. v. Rope.s, 6 Pick. 23. 2 Salem :Mill-I)am Co. v. Ropes, 6 Pick. 2-',\ Central Turnpike Co. v. Val- entine, 10 Pick. 142. No valid assessment, that is, for the general purposes of the enterprise; and if any of the subscriptions be made upon conditions pre- cedent, it must be shown that such conditions have been waived or performed. Central Turnpike Co. v. Valentine, supra. But assessments to defray the ex- penses of incorporation, organization, and preliminary examination have been allowed before the stock is all subscribed. Salem Mill-Dam Co. v. Ropes, .supra. And in a suit upon subscriptions to stock in a corporation, where by the charter a given amount of stock is required to be subscrioed before the corporation can go into operation, it is necessary to allege the latter fact, and the omission will be ground of error, although the question is not I'aised at the trial. Fry V. Lexington & Big Sandy Railroad Co., 2 Met. Ky. 314. 8 Highland Turnpike Co. v. ]M Kean, llJohns. 98; 1 Caines Cas. 85; Wood r. Coosa & Chattooga River Railroad Co., 32 Ga. 273. But see infra, § 51, where it will appear, that although the public or the other shareholders may insist upon the payment, in money, of the sums required by the charter to be paid at the time of subscription, this is a condition which cannot be taken ad- vantage of by the subscriber, as between himself and the company, in an action (a) Stoneham Branch Railroad Co. v. Preston, 35 Iowa, 118; Bray??. Far- V. Gould, 2 Gray, 278, where the rule well, 81 N. Y. GOO; Allman )-•. Havana and the reason on which it rests Railroad Co., 88 111. 521; Santa Cruz are clearly stated by Chief-Justice Railroad Co. v. Schwartz, 53 Cal. Shaw. And see Peoria Railroad Co. 106. [*109J § 31.] SHARES PERSONAL ESTATE. 105 Where * the charter of a railway company provided that the ■whole capital stock should be subscribed, before any of the powers and provisions of the charter should be put in force, and the com- pany made a call upon the shares before the subscriptions were completed, and commenced an action after they were so, it was held the action could not be maintained, the completion of the subscription being necessary to enable the company to make the call.* SECTION III. Shares Personal Estate. 1. Railway shares personal estate at com- mon law. 2. Not an interest grovvinji: out of land, nor goods, wares, and merchandise. Early cases treated such shares as real estate. § 31. 1. The shares of railway companies are now almost uni- versally regarded as personal estate, (a) The English statute so for calls. And it has been held, that the stock subscriptions to a railway with banking privileges cannot be paid in bills of the company, but must all be paid in specie. King v. Elliott, 5 Sm. & M. Ch. 428. Subscriptions in the name of infants, unless some one is responsible for payment of calls, are not a com- pliance with the charter. Roman v. Fry, 5 J. J. Mar. 6;51. Hut if the cor- poration acquiesce in such subscriptions, it cannot afterwards object. Creed V. Lancaster Bank, 1 Ohio St. 1. See Beach i*. Smith, *JS Barb. 1254. See also East Pascagoula Hotel Co. v. West, 13 La. An. 545; Piscataqua Ferry Co. V.Jones, 39 N. H. 491; Fiser v. Mississippi & Tennessee Railroad Co., 32 Miss. 359; Ilayne v. Beauchamp, 5 Sm. & M. 515, 537; Lewis t'. Robertj^on, 13 Sm. & M. 558; Barrington v. jMississippi Central Railroad Co., 3l' Miss. 703; Mi,>^sissippi & Tennessee Railroad Co. v. Harris, 3(1 Miss. 17. But it has been held that a condition in the charter, that one dollar i>er share shall be paid at the time of subscription, and the company organized when one thousand shares are subscribed, does not apply to subscriptions made after the organization of the company, and that t!ie failure of the com- pany to build its road within the time limited in the charter will not enable the subscribers to defend against calls. Taggart v. AN'est Maryland liailroad Co., 24 Md. 503. * Norwich & Lowestoft Navigation Co. r. Theobald. 1 bloody & ^L 151. It is not competent for all the shareholders to reduce the amount of the capital (rt) Shares are mere choses in action, stated in the te.xt. And this, though all while certificates are chattels ; but both, the property of the corporation is realty, of course, are personal property, as See Baldwin i-. Canfield. 20 Minn. 43. [•110] lOG CAPITAL STOCK. [PART II. declares tliem. Hence the transfer of such shares is not required to be in writing, nor arc they regarded as coming within the acts of * mortmain.^ This has been repeatedly decided in regard to shares of canal and dock companies, and bonds secured by an assign- ment of the rates.2 Such shares may be sold by parol where the contract is executory .^ And it would seem that the same view would prevail in the English courts, even where there is no statutory declaration that the shares shall be deemed personal estate.^ 2. And the sale of foreign railway shares standing in the name of another person, and a guarantee that such person shall deliver, need not be in writing, either as liaving respect to an interest growing out of land, or as an undertaking for another, the under- taking being original and not collateral.* Railway shares are neither an interest in land, nor goods, wares, and merchandise, within the statute of frauds.^ 3. Some of the early English cases treated the shares of incor- porated companies as real estate, where the interest grew out of the use or improvement of real estate,^ and a similar view is taken stock, by mutual consent, below that fixed in the charter. If that is attempted, it will be enjoined upon a bill brought by the company against the share- holders and projectors. Society of Practical Knowledge v. Abbott, 2 Beav. 559. ^ Ashton V. Lord Longdale, 4 Eng. L. & Eq. 80. This case extends the same rule to the debentures of such companies. Neither is railway scrip ■witliin the Mortmain Act. But mortgages given by a railway company of the undertaking and tolls may be within the act. So also shares in a bank se- cured by mortgages. Myers v. Perigal, IG Sim. 533; King v. Chipping Norton, 5 East, 2.39. 2 Sparling v. Parker, 9 Beav. 450; Thompson v. Thompson, 1 Coll. C. C. 381; Hilton v. Giraud, 1 De G. & S. 183; Walker v. Milne, 11 Beav. 507. But see Tomlinson v. Tomlinson, 9 Beav. 459. « Bradley v. Iloldsworth, 3 M. & W. 422; Bligh v. Brent, 2 Y. & Col. 2G8, 294. This is an elaborate case establishing the proposition that the shares in a corporation, whose works are real estate, are nevertheless personal estate, and this upon general principles of the common law. * Ilargreaves v. Parsons, 13 ]\I. & W. 5G1. 6 Humble V. Mitchell, 2 Raihv. Cas. 70; s. c. 11 A. & E. 205. See also Duncuft V. Albrecht, 12 Sim. 189; Tempest v. Kilner, 3 C. B. 249; Knight v. Barber, 16 M. & W. 66. s Drybutter i-. Bartholomew, 2 P. Wms. 127; Townsend v. Ash, 3 Atk. 336; Buckeridge v. Ingram, 2 Yes. Jr. 652. [*in] § 31.] SHARES PERSONAL ESTATE. 107 in some of the American states." IJut the settled rule ujxju iIhj subject now, both in England and in this country, is that before stated.^ This has often been decided in recent analogous cases. * The fee of land being in the corporation, vests no interests of the nature of real estate in the separate shareholders.^ ^ Welles V. Cowles, 2 Conn. 507. See also Cape Sable Company's Case, 3 Bland, 606, 670; Binney's Case, 2 Bland, 99; Price v. Price, G Dana, 107; Meason's Estate, 4 Watts, 341 ; Copeland v. Copeland, 7 Bush, 349. * Waif. Railw. 254; supra, § 31, and cases cited in notes, 1-4; Tippets v. Walker, 4 Mass. 595, 596, per Paksons, C. J. Howe v. Starkweather, 17 Mass. 240, 213, per Parker, C. J. Waltham Bank v. Walthain, 10 Met. 334; Hutchins v. State Bank, 12 Met. 421; Denton v. Livingston, 9 Johns. 96, 100; Planters' & Merchants' Bank v. Leavens, 4 Ala. 753; Union Bank r. State, 9 Yerger, 490; Brightwell v. Mal- lory, 10 Yerger, 196; Heart i'. State Bank, 2 Dev. Eq. Ill; State v. Fraiikliu Bank, 10 Ohio, 91, 97; SJaymaker v. Gettysburg Bank, 10 Penn. St. 373; Gil- pen V. Howell, 5 Penn. St. 41, 57; Johns v. Johns, 1 Ohio St. 350; Arnold v. Ruggles, 1 11. I. 165. A distinction has sometimes been attempted between the shares of a bank or manufacturing corporation, and a turnpike or railway; but the slightest examination will show that there is no substantial ground for such a di.slinc- tion. The one may be more intimately connected than the other with real estate, but both must have some connection, more or less intimate, and iu neither have the shareholders any title to the land, while the shares are merely a right to the ultimate profits of the company, and are as really choses in action as promissory notes, bills of exchange, or bonds and mortgages, of natural or corporate persons. Wheelock v. Moulton, 15 Vt. 519; Isham v. Bennington hon Co., 19 Vt. 230. See also Johns v. Johns, supra. ' Ackland v. Lewis, 1 K. & G. 334. [ni2] 108 TRANSFER OF SHARES. [part II. *CHAPTER YIII. transfer of shares. SECTION I. Restrictions upon Transfer. 1. Express provisions of charter to be ob- served. 2. If not made exclusive, held directory merely. 3. Unusual and inconvenient restrictions void as in restraint of trade. 4. The company may have a lien on stock for the indebtedness of the owner. 5. But such lien is not to be implied. 6. Where transfer is wrongfully refused, vendee may recover value of the company. § 32. 1. We cannot here attempt to show in detail all the inci- dents of the transfer of stock- in railway companies. It is transfer- able much the same as other personal property, excepting only that any express provision of the charter upon that subject must be regarded as of paramount obligation.^ (a) 1 Strictly speaking, perhaps no shares in any joint enterprise are transfer- able so as to introduce the assignee into the association, as a member, unless it be shares in joint-stock companies and corporations formed in pursuance of legislative autliority; and such shares are transferable only under the charter, and according to its terms. Duvergier v. Fellows, 5 Bing. 248, 267, per Best, C. J. A mere partnership cannot be so constituted as to release the assignor of a share from all liability to third persons, and introduce the assignee at once, and completely, into his place. Blundell v. Winsor, 8 Sim. 601, per SiiADWELL, V. C. ; Jackson v. Cocker, 4 Beav. 59, 63. In England it has been lield, that where the charter of a corporation or the deed of settle- ment required the assent of the directors to complete the title of the purchaser of shares, it was the duty of the seller to procure this assent, in order to comply (a) Bisliop V. Globe Co., 135 Mass. 132; Stock well v. St. Louis Mercan- tile Co., 9 Mo. Ap. 133; State v. Petti- neli, 10 Nev. 141. But this rule ap- plies only to a transfer of existing shares, not to a substitution of par- ties to a contract for the purchase of .shares from the company. See Morton's Case, Law Rep. 16 Eq. [*113J 105; Beresford's Case, 2 Macn. & G. 197. "When a married woman transfers shares without compliance with the statute, she is not estopped from set- ting up her title against a subsequent purchaser without notice. Merriam V. Boston, Clinton & Fitchburg Rail- road Co., 117 Mass. 241. § 32.] RESTRICTIONS UPON TRANSFER. 109 * 2. In many cases, however, where tlie charter only provides a mode of transfer, and dues not declare this mode exclusive of uU with his contract to convey. Wilivinson v. Lloyd, 7 Q. B. 27; Bosanquet v. Shortridgo, 4 Exch. GD9. And all corporations may require all calls to be paid, before they will sub- stitute the purchaser of shares for the original subscriber, as such substitution would release the subscriber, and it would be liable to defeat public enter- prises of moment, after large expenditure. Hall v. Norfolk Estuary Co., 7 llailw. Cas. 5U;i; s. C 8 Eiig. L. & Eq. 351. But the assignee of a share may always insist on becoming a member on paying all calls. Questions of some dilliculty often arise between shareliolders and the com- pany, as to whether an informal transfer has been confirmed by acquiescence. In Shortridge v. Bosanquet, 16 Beav. 81; s. c. 17 Eng. L. & Eq. li'-il, and in Ex parte Bagge, 13 Beav. 162; s. c. 4 Eng. L. & Eq. 72, it is held that if the entry of the transfer is made on the books of the company, it cannot treat the transaction as void, for any want of form in the transfer, especially where tlie company has dealt with the shareholder claiming under the transfer, though informal in a material matter specially required by the charter, the in- formality being also such as its own ix-regularities have rendered it impossible to observe. And where the secretary of a joint-stock company fraudulently transferred shares, and the proprietor of the shares treated the transaction as valid against the transferee, but filed a bill against the company for damages, it was held tliat he was not entitled to relief. Duncan v. Luiitley, 2 Macn. & G. 30; s. c. 2 Hall & T. 78. In Ex parte Straffon, 4 De G. «& S. 256 ; s. c. 10 Eng. L. & Eq. 275, Lord Chancellor St. Leonards characterizes these transactions, which, although infornial in some respects, are acquiesced in by both parties, until there comes some crisis in the affairs of the company perhaps, or the transferee becomes in.solvent, as valid as between the parties, though all formalities have not been observed. And in Bargate r. Shortridge, 5 Ho. Lds. 297 ; s. c 31 Eng. L. & Eq. 41, njxtn elaborate argument and great consideration, it .seems to liave been definitively settled, that where the deed of a joint-stock company requires tlie certificate of consent of a certain number of directors to the transfer of the .shares of tlie company, and in practice this has never been given, but, for years, transfers have been made on the verbal assent of the managing director on the sj>ot, and a large portion of the original shares have been so transferred, the ctim- j>any cannot refuse to regard one as a member to whom a transfer ha.s been so niade and whose name has been entered on the books; and that it cannot treat the one who has transferred as still a member. Lord St. LKo.vAKns, who delivered the principal opinion, pointed out the distinction between nets for which the directors have no authority and which are absolutely void, and acts within their power, and said that in ca.se of the latter neither law nor equity would allow the company to take advantage of their neglect. This distinction seems to be sound and to have an important bearing on the rights of the honajide holders of stock fraudulenllv overissued. See s. c. [ni4j 110 TRANSFER OF SHARES. [PART II, * others, the provision has been regarded as merely directory, and not indispensable to the vesting of title in the assignee. And this has generally been so regarded, where tlie express provisions, in relation to the transfer of shares, exist only in the by-laws of the corporation. 3. And any unusual restriction in the by-laws of a corporation upon the transfer of stock, as that it shall be made only upon the books of the corporation, in person, or by attorney, and with the consent of the president, or other officers of the corporation, has been regarded as void, as an unreasonable restraint upon trade,^ 4 Exch. 699. See also Taylor v. Hughes, 2 Jones & La T. 24; Humble v. Langston, 7 M. & W. 517; s. c. 2 Railw. Cas. 533; Ex parte Cockburn, 4 De G. & S. 177; 8. c. 1 Eng. L. & Eq. 139. But where the charter, or the gen- eral law, requires all debts of the owner to the company to be paid before transfer of shares, the company is not bound to accept a transfer otherwise made. Reg. v. Wing, 33 Eng. L. & Eq. 80. 2 Sargent v. Franklin Insurance Co., 8 Pick. 90; Quiner v. Marblehead Insurance Co., 10 Mass. 476; Noyes v. Spalding, 27 Vt. 421; Bates v. Kew York Insurance Co., 3 Johns. Cas. 238; Chouteau Spring Co. v. Harris, 20 Mo. 382. In this last case the charter of the company provided that the stock might be " transferred on the books of the company," and the company was authorized "to regulate the transfer of stock" by by-laws, and, in certain cases, to make assess7nents of stockholders beyond their shares of stock. It was held that no such assessment could be made on one who liad ceased to be a member, by a transfer of his stock; that the power " to regulate the transfer" did not include the powder to restrain transfers, or to prescribe to whom they might be made, but merely to prescribe the formalities to be observed in making them; that the company could not prevent one from selling his stock, even to an insolvent person ; that an assignment " upon the books of the com- pany " was sufficient to effect a change of ownership, without taking out a new certificate in the name of the assignee; and that any transfer in writing was valid against the company, if, being notified, the company refused to allow it to be made according to their by-laws. And in Daucliy v. Brown, 24 Vt. 197, which was an action against stock- holders, on the proper debt of the corporation, where the charter provided, that the persons and property of the corporators should be held to pay its debts, and that any execution, which should issue against the corporation, might be levied on the person or property of any individual thereof, it was held, that the stockholders were liable only in default of the corporation, and that judgment should first be recovered against the corporation, and the stat- ute remedy strictly pursued. See, also, in regard to the remedy against stockholders, who are by statute made personally liable, Southmayd v. Russ, 3 Conn. 52; Middletown Bank c. Magill, 5 Conn. 28; Child v. Coffin, 17 Mass. 64; Roman v. Fry, 5 J. J. Marsh. 634. And in Robinson v. Chartered Bank, Law Rep. 1 Eq. 32, where the charter required that no one should [*115] § r>2.] RESTRICTIONS UPON TRANSFER. HI * unless as a provision to secure the indebtedness of sharehoi«J(jrs. In such case it is sometimes said the assignee need only make his right known to the company, and require the transfer entered upon the books, and his title becomes perfected.^ 4. But if the former owner was indebted to the corporation, and the charter lequired all such indebtedness to be liquidated, before transfer of stock, such indebtedness will remain a lien ujHjn the stock in the hands of the assignee.* (i) And where the charter of * the company requires the payment of all sums due before regis- tering a transfer, this will embrace all calls made and which arc payable at the date of the transfer.^ become a transferee of shares unless with the approval of the directors, it was held that the directors must use this power reasonably and would be con- trolled in equity. But where the charter of a corporation required all trans- fers to be executed by both parties and approved by the directors, and the transferor's name had been entered on the registry on his own execution merely, and the company was being wound up, the court refused an application to remove his name from the registry. Walker's Case, Law Rep. 2 Eq. 5.^. * Sargent v. Franklin Insurance Co., 8 Pick. 90; United States r. Vaughan, n Binn. 39-1; Ellis r. Essex Bridge Co., 2 Pick. 24:}; Chester Glass Co. v. Dewey, 16 Mass. 94; Agricultural Bank r. Burr, 11 Me. 250; Same i;. Wilson, id. 273. < Union Bank v. Laird, 2 Wheat. 390; Utica Bank v. Smalley, 2 Cow. 770; Rogers r. Huntingdon Bank, 12 Serg. & R. 77; Downer v. Zanesville Bank, Wright, 477; Farmers' Bank v. Iglehart, G Gill, 50; Hall v. United Stutf'S Insurance Co., 5 Gill, 4S4. See Angell & Ames Corp., § 355 and note. In Marlborough Manufacturing Co. v. Smith, 2 Conn. 579, it was said the tran.s- fer of shares to constitute the assignee a stockholder must be in strict conformity to the charter and by-laws. And in the case of Pittsburg & Connellsville Rail- road Co. V. Clarke, 29 Penn. St. 14G, Lewis, C. J., goes into an elaborate review of the cases to show, that under the Pennsylvania statutes, (which provide, tliat no transfer of shares shall be made while the holder remains indebted to tlie company, except by consent of the board of directors, and no transfer .'^hall discharge any liabilities before incurred), both the stock and the holder remain liable for all calls due before the transfer; that the original sub.^criber, having promised to pay so much on a share, is indebted to the company before calls made; and that even where the transfer is made with the consent of the directors, he will remain liable until all calls are paid, notwithstanding the statute subjects the transferee also to a like liability. The same principle was reaffirmed in Graff r. Pittsburg & Steubenville Railroad Co., 31 Penn. St. 4S0. « Ex parte Orpen, 9 Jur. n. s. C15. This question is fully discussed in (h) A transfer on the books of the And see In re Northern Assam Tea company is a waiver of the lien. Hill Co., Law Rep. 10 Eq. 458. V. Pine River Bank, 45 X. H. 300. [•116, MIT] 112 TRANSFER OF SHARES. [PART II. * 5. A corporation has no implied lien upon stock for the liabili- ties of the stockholders to the company.^ (c) * 6, And when the company wrongfully refuse to record trans- fers of shares, on their books, the vendee may recover the price of such shares, the company having caused them to be sold, as the property of the vendor.^ (c?) Reese v. Bank of Coinraerce, 14 Md. 271, where it was held that the lien of the bank on the stock was not waived by a certificate entitling the holder to a transfer on surrender thereof, that an assignee took subject to the rights of the bank, and that he could obtain a transfer only on payment of all debts due at time of final demand. Such a lien will be good against the money for which the shares were sold, in the hands of the official liquidator, for the shareholder. In re General Exchange Bank, Law Rep. 6 Ch. App. 818. ^ Massachusetts Iron Co. v. Hooper, 7 Cush. 183 ; Heart v. State Bank, 2 Dev. Eq. Ill; Sargent v. Franklin Insurance Co., 8 Pick. 90, and cases cited supra, note 2. But dividends due and unpaid may be said to be a fund, in the hands of the corporation, which it is not obliged to pay to the assignee of the stock, until its debts from the assignor are liquidated. Dividends are strictly due only to the assignor, and would not probably pass by a mere sale of the stock, unless there were some special ground for giving the transfer of the stock that operation. (c) The corporation cannot refuse been held that he may maintain an to permit a transfer in the absence of action against the corporation for re- an express provision and of special fusing to issue or transfer a certificate, agreement, merely because the assignor though the assignment was not made is indebted to the company. Mer- on the books pursuant to charter, chants' Bank v. Shouse, 102 Penn. Baltimore City Passenger Railway St. 488; Farmers' Bank v. Wasson, 48 Co. v. Sewell, 35 Md. 238. But upon Iowa, 340; Carroll v. Mullanphy Sav- principle, as there is no privity of con- ings Bank, 8 Mo. Ap. 249; Case v. tract, it would seem that the assignee Bank, 100 U. S. 446. should resort to proceedings against (tl) And it has been held that the the assignor, either by action for dam- assignee may maintain assumpsit for ages or by a bill for a specific perform- a refusal to transfer. Commercial ance, or to proceedings treating the Bank v. Kortright, 22 Wend. 348. assignor as trustee. The assignee And see Merchants' National Bank v. may in equity compel issue of a certi- Richards, 6 Mo. Ap. 4G1; Scripture ficate, if he is willing to pay implied V. Francestown Soapstone Co., 50 instalments. Iron Railroad Co. v. N. H. 571; West Branch Canal Co.'s Fink, 41 Ohio St. 321. Appeal, 81 Penn. St. 19. So it has [*118, *119] §33.] CONTRACTS TO TRANSFER STOCK. 113 SECTION II. Contracts to transfer Stock. 1. Transfer under English statutes. Reg- istered companies. 2. Contracts to transfer stock not yet ac- quired, valid if honajlde. n. 3. EtTect of rule requiring assent of directors. 3. Vendor must have the stock, at the time agreed on. 4. Force of usages of stock-exchange. 5. Company will reform the registry at its peril. 0, 10. Company may compel one to ac- cept shares on contract. 7. Stock standing in joint names belongs to survivors. 8. Mode and elfcct of correcting registry. 9. If the company vary the contract, spe- cific peiforniance will he denied. 10. Closing contracts hy olTcr and accep- tance. 11. Form of transfer. Two may join in one transfer. § 33. 1. Questions often arise in regard to transfers of stock in incorporated companies as to the quantity of interests conveyed, the title of the person making the conveyance, and many other in- cidents. The English statutes in regard to the registration of * railway companies arc not intended to affect the property in the shares,^ and a transfer is valid, although made before the registra- tion.- 2. It would seem, too, that a contract to transfer stock in rail- way companies, at a future time, which the party neitlKM- has, nor is about to have, but expects to purchase in the market, for the purj)Osc of fulfilling his undertaking, is nevertheless a valid con- tract, and not illegal, or against the policy of the law,^ and that ' London & Brighton Railway Co. r. Fairclough, 2 Railw. Cas. oil; s. c. 2 M. & G. G7-1. 2 Sheflield, Ashton-undcr-Lyne & Alanchestcr Railway Co. v. Woodcock, 2 Raiiw. Gas. 522; s. c. 7 M. & W. 574. « Ilibblewhite v. M'Morine, 5 M. & W. 4G2. "Walford intimates. Waif. Railw. 25(i and note, that the law of France regard.s contracts of thi.s class as illegal, and cites Ilaniiuic v. Goldner, 11 M. & W. 81f), :n confinnation. But the case does not expressly decide the point. Where the deed of settlement required the assent of the directors to a transfer of shares, and tin" vendor did not obtain it, and in the mean time the price of share:^ fell in the market, it was held that the vendee might recover back his money. Wilkinson r. Lloyd, 7 Q. R. 27. Rut where the plaintiffs covenanted to snKscrihe for stock in a railway, and pay ten per cent, and then transfer to defendant, who agreed to pay the residue, but the by-laws of the company provided for transfer only after the payment of thirty per cent, unless by the consent of.tlie ilircctors, VOL. I. -8 [*120J 114 TRANSFER OF SHARES. [PART II. the intimation of Lord Tenterden,'* that such contracts were illegal, and not to be encouraged by the law or its ministers, is not to be regarded at this time as sound law, however good sense or good morality it may seem to bo. 3. It is clearly not a stock-jobbing transaction within the Eng- lish statute.^ But to the performance of such a contract it seems * to be requisite, that the seller should bona fide procure the stock, by the time appointed for the transfer.^ 4. The English reports, both in law and equity, and especially the more recent ones, abound in cases more or less affecting transfers of shares on the stock-exchange, and the practice and law governing transactions between brokers. These rules are allowed to have great weight in fixing the construction and effect of contracts made through the instrumentality of brokers. In the sale of shares in companies requiring the consent of the directors or of the company itself to the transfer, it is not under- stood, according to these rules, that the vendor or his broker undertakes to procure that consent, and if he does all that is requisite to effect a transfer of the equitable interest of the property, and there is no obstruction to the vendee in obtaining the registration of such transfer, by taking the prescribed steps the transfer will be regarded as complete.^ There have been somewhat recently two English decisions bearing upon the sale of shares upon the stock-exchange which seem to require an which was refused, and the plaintiffs tendered the defendant an assignment with power of attorney to transfer, which was refused as not being a compli- ance with the contract, it was held, in an action for damages, that the plain- tiffs had complied with their covenant, and miglit recover, not the difference beween the value of the stock at the time of refusal and the sum due upon the subscription, but the whole sum due and interest. See also Orr v. Bige- low, 14 N. Y. 5o6. * In Bryan v. Lewis, Ryan & Moody, N. P. 38G, and in Lorymer v. Smith, 1 B. &C. 1. 6 Hewitt V. Price, 4 M. & G. 355; Mortimer r. M'Callan, 6 M. & W. 58. 8 Ilibblewiiite v. M':\Iorine, 2 Railw. Cas. 51-66; s. c. 6 M. & W. 200. The comments of Isham, J., in Xoyes v. Spaulding, 27 Vt. 420, 429, may be regarded, perhaps, as giving the present state of the English law upon this subject. 7 Stray v. Russell, 1 Ellis & E. 888, 916; s. c. 5 Jnr. x. s. 1295; s. c. affirmed in Exchequer Chamber, 2 Ellis & E. 592. Sea also Field t;. Lelean, 6 H. & N. G17, where a custom of the stock-exchange not to deliver shares of a par- ticular class on contracts of sale until payment of the price, was held binding. [*121] § 33.] CONTRACTS TO TRANSFER STOCK. 11.0 extended statement here. In Coles v. Bristowe ^ the question was heard in chancery. The custom of the stock-exchange serins to be that shares are bought and sold for the next settling day, when the jobber is either to take the liability on himself, or pass the names of transferees to whom no reasonable ol)jection can be taken ; and on such names being accepted by tlio vendor, and the transfers made and the price paid by the transferees, the }»ersonal liability of the jobber to the vendor ceases. It was accordingly held, that, where the plaintiff instructed his brokers to sell certain shares for him, and they disposed of them to the defendants for the next settling day, both plaintiff and defend- ants being familiar with the usages of the stock-exchange, and the transaction being confessedly subject thereto, and on the set- tling day the defendants passed the names of persons whom the plaintiff accepted, and executed transfers to them, and received the price of them, but the suspension and winding up of the com- pany between the sale and the settling day having rendered the registration of the transfers impossible, it was held that the defendants, who, up to the acceptance of the transferees and transferring the shares to them, were liable to indemnify the vendor in respect of his liability on the shares, became thereupon exonerated from all liability ; and the transferees became liable t(j the same extent by accepting the transfer as if they had exe- cuted it on their part, but how far that liability will extend was not determined here. But it was here held that the vendor of shares on the stock-exchange cannot excuse himself from being bound by the usages of the exchange, so long as he continues to sell there by any private instructions to his broker. The same subject is very extensively discussed by Lord Chief-Justico CocKBURN in delivering the opinion in Gressell v. Bristowe.^ with the same general results ; so that it must now be regarded as settled in England that one who sells upon the stock-exchange through a broker, will be bound by the known usages of the place, and whether such usages al'e in fact known to the vendor or not will not probably be held essential, so long as they arc of general notoriety and understood both by his broker and fliat of 8 17 W. R. lOo, before the full Court of Clnncery Appeal, Lord ClKiiicel- lor Cairxs, and Lords Justices Wood and Selwix. ® 17 \V. R. 123, in the Exchequer Chamber, on error from the Common Pleas, IG W. R. 428; s. c. Law Rep. 3 C. P. 112; iu/ra, § GO, pi. 4. note 4. [•121] IIG TRANSFER OF SHARES. [PART II. the Other party. The precise point of the decisions seems to be, that any usage of the stock-exchange which is uniform and reasonable will be understood to form one of the terms of sales made there, unless there is something to show that the parties understandingly waived or departed from it. And the fact that one of the parties gave special instructions to his broker, which were not communicated to the broker of the other party, will make no difference. * 5. Where the company assume to erase transfers from their books on the alleged ground that they are merely colorable, and made for the purpose of injuriously affecting the interest of the company or others, they assume the burden of showing such to be the facts ; and the transferees will be entitled to a mandamus to compel the company to restore their names to the registry as the proprietors.^'^ 6. It is competent for the company to maintain a bill in equity against one upon an agreement to accept shares, although no writ- ing has been signed by the defendant according to the statute re- quiring the acceptance to be in writing. The contract may be enforced, as an agreement to do what the statute requires, and the decree will settle the question whether the defendant or some other one is the lawful holder of the shares in question.^i 7. Where stock is allowed to stand in the joint names of two persons, they will be regarded as joint tenants, unless something is shown to the contrary, and the company may treat the survivor as the owner of the whole. ^^ 8. A court will not interfere to compel a joint-stock company to correct their registry by removing one name and inserting another while an action at law is pending in regard to the same 10 Ward v. South Eastern Railway Co., 2 Ellis & E. 812; s. c. 6 Jur. x. s. 800. The owner of shares, unless precluded by the charter of the company, may lawfully transfer them to any one who will accept the same, although it be done to escape the responsibility of membership. Weston's Case, 17 "\V. U. 62; Ex pane Rayner, id. 64.* " New Brunswick & Canada Railway Land Co. v. Muggerid.Eje, 4 Drew. CSG; Bog Lead Co. v. Montague. 10 C. B. n. s. 481; s. c. 8 Jur. n. s. 310. 1^ Garrick r. Taylor, 3 Law T. n. s. 4G0. And this will be so, though, by the rules of the bank, there is to be no benefit of survivorship, it appearing to have been the purpose of the deceased to have his share go to the survivor. Garrick v. Taylor, 29 Beav. 79; 7 Jur. n. s. 116, affirmed by Lords Justices, 10 W. R. 4n. [*122] § 33.] CONTUACTS TO TRANSFER STOCK. 117 mattcr.^^ Wlierc the registry is altoroaid to those entitled to the general residue. This case was decided on the autliority of Blount v. Ilipkins, 7 Sim. 4:^, 51, which, it was said, could not be substantially distinguished as regarded either .set of shares. See al.so l^uncuft v. Albrecht, \'l Sim. 189. But, as before .'^aid, it is well .settled, that tlie courts in England will not decree specific peiformance of a contract to sell public stocks, which may always be had in the market. Xulbrown v. Thornton, 10 Ves. 159. - Jackson v. Cocker, 2 Railw. Cas. 3GS; s. c. 4 Beav. 59. 8 3 B. & C. G39. * Statute G Geo. 1, c. 18. * Columbine v. Chichester, 2 Phillips, 27. VOL. I.- 9 [*135] 130 TRANSFER OF SHARES. [part II. fault. But will, in such case, leave the other party to his remedy at law, by way of damages, which is all the redress that remains.^ (a) * SECT ION IX. Trustee entitled to Indemnity against future Calls. 1. Trustee entitled to indemnity, on gen- eral principles. 2. English courts hesitated in regard to railway shares. 3. 4. Cases reviewed. 5. Mortgagees liable, as stockholders, for the debts of the company. 6. Ostensible owner must respond to all responsibilities. 7. Executors responsible personally. 8. Mortgagor is entitled to redeem on restoring the sliares as stipulated in his deed. § 40. 1. It seems to be regarded as the general rule of chancery law, that the trustee of property is entitled to indemnity for ex- penses bona fide incurred in the management and preservation of the trust-fund, or estate, either out of the property or as a personal duty from the cestui que trust, in most cases.^ 2. We apprehend there is no good reason why this principle should not receive a general application to the case of shares in a irailway company, held as security for debt, by way of mortgage or pledge. And it would seem, that no serious question coidd ever 8 Greenaway v. Adams, 12 Ves. 395, 400; Varick v. Edwards, 11 Paige, 289. In the case of Miller r. Illinois Central Railroad Co., 24 Barb. 312, where the company, by its treasurer, gave a receipt for money, to be repaid with interest on demand, or received in payment of stock, to be issued to them or their assigns when the directors should authorize the issue of more stock, it was held that the holder of such receipt had only an option to take the shares or the money, and that he could not claim to be a holder of stock, or to liave any right thereto, until he had given notice of his election to take stock. And an assignee of such holder, who took the receipt as collateral security, was held in the circumstances to have no better right. 1 Murray v. De Rottenham, 6 .lohns. Ch. 52, 67 ; Green v. Winter, 1 Johns. Ch. 27; Watts v. Watts, 2 McCord, Ch. 82; Myers v. Myers, 2 :\IcCord, Ch. 2G4; McMillan v. Scott, 1 (?) Monr. 151; Morton v. Barrett, 22 Me. 257; Draper v. Gordon, 4 Sandf. Ch. 210; Egbert v. Brooks, 3 Ilarring. Del (?) 110; Methodist Episcopal Church v. Jaques, 1 Johns. Ch. 450; Story Bailm., §§ 300, 30Ga 357 358. [*136] (a) See supra, § 38, note (a). § 40.] INDEMNITY AGAINST FUTURE CALLS. 131 have arisen upon the subject, but for the strange inconsistencies into which the English courts and judges have been led, by at- tempting, for so long a period, to maintain the doctrine laid down in Ilumblo v. Langston,^ but which is now effectually overruled ill the tribunal of last resort.^ 3. But we shall refer briefly to the decisions upon this point, in regard to railway shares and stock, in other similar companies. It was held, by Wigram, Vice-Chancellor,* that where there was * a contract for retransfer, claimed by the mortgagor, or found in express terms in the contract of pledge or mortgage, or inferable from circumstances, this was sufficient ground for implying a contract, by the mortgagor, to indemnify the mortgagee against liability to the creditors of the company for debts incurred, Avhile his name remained upon the register of shares as owner, and a decree was made accordingly. 4. The same learned judge, in the same case, considered, that where the mortgage was made simply as an absolute transfer, subject to redemption, and nothing had passed binding the mort- gagor to take a retransfer of the shares, the mortgagor was not bound to indemnify the mortgagee against debts incurred after the transfer made in the mortgage, and before the mortgage debt Avas paid off. But it is here maintained, that tlie mortgagee has not in such case any vight, at law, against the mortgagor, as to payments which he has been compelled to make while he remained the ostensible owner of the sluires, even where a contract for retrans- fer is shown. But an English writer u])on this subject ^ seems to incline to the opinion that, in such case, an action of trespass on the case might be maintained against the purchaser of shares who fails to cause his name to be registered as owner, or to in- demnify the seller against liabilities after the sale. And the same « 7 M. & W. 517. 8 Walker v. Bartlett, 18 C. B. 81-5; s. c. 3G Eiig. L. & Eq. 3G8. See also Paine v. Ihitchiiison, Law Rep. 3 Eq. 2.37. * Pheiie V. Gillan, 5 Hare, 1. In tlii.sca.se, it was held, that where the mortgagor is entitled to claim a retransfer of .sliares standing on the register in tiie name of the mortgagee, the debt being paid, he is entitled to take proceed- ings in the name of the mortgagee to compel such retransfer, giving the proper indemnity for costs. And either the company or the directors, who have pre- vented the shares from being transferred, are proper, and, it would seem, ueccssary parties to the bill. 6 Hodges Raihv., 122. [*137] 132 TRANSFER OF SHARES. [PART 11. principle will apply to the mortgagee, after the debt is paid. But all these refinements must now, we think, be regarded as effectu- ally abrogated, by the virtual abandonment, by the English courts, of the rule laid down in Humble v. Langston, and tlie recognition of the contrary doctrine. 5. It has been held, in this country, that, where B. being in- debted transferred shares to his creditors, as security, with the power of sale, and upon condition that the shares should be re- turned or accounted for, whenever the debt should be paid, the debt being paid off, and an informal power of retransfer given the mortgagor, and subsequently a more formal one, the mortgagees were to be regarded as stockholders, until the actual retransfer of the shares, and as such liable to the creditors of the company, under the charter.^ As the case of Humble v. Langston is not in * terms overruled, although it is in principle, we think, we here in- sert the substance of the opinion of the court in Walker v. Bart- lett, as showing the present state of the English law on the subject.'' * Adderly v. Storm, 6 Hill, 624. Bronson. J., there argues the liability of the mortgagees to the creditors of the company, while their names re- mained on the books of the company as absolute shareholders, on the ground that " they might receive dividends, vote at elections, and enjoy all the rights pertaining to the ownership of the property, and with the privileges they must take the burdens of a stockholder." A query is here started whether a retransfer to the mortgagor of the shares, on the payment of the debt, might not release the mortgagee. " The assignment, as between the parties to it, would have passed the legal interest in the stock." But are the creditors of the company bound to iook beyond the register of shares? Rosevelt i'. Brown, 11 N. Y. 148; Worrall v. Judson, 5 Barb. 210; Stanley v. Stanley, 26 Me. 191. In Adderly v. Storm, supra, it is intimated, that a fraudulent transfer of stock by a solvent owner to an insolvent person, for the purpose of avoiding liability to tlie creditors of the company, might not avail, even at law. ' " The case of Wynne v. Price, 3 De G. & S. 310, shows that in equity the plaintiff would be entitled, under the circumstances of the present case, to indemnity ; but it was contended for the defendant, that, however the case might be in equity, there was no contract for indemnity to be implied by law; and the case of Humble v. Langston, 7 M. & AV. 517, was relied upon as a direct authority against the plaintiff upon this point; and the Court of Common Pleas, in the judgment appealed against, considered that it was bound by that decision, though it was intimated that but for that express de- cision their own judgment might have been different. It must be admitted that, in principle, no substantial difference can be taken between tliat case and the present, except this, that in Humble v. Langston the plaintiff claimed [*138] I § 40.] INDEMNITY AGAINST FUTURE CALLS. 133 * G. It seems most unquestionable that a trustee may be made liable for assessments or calls upon the shares standing in his to be indemnified by the defendant against all future calls, even though made after the defendant had himself transferred the shares to other persons; and the Court of Excliequer, at the end of ^the judgment, observes, that if there were any analogy in principle between the case of Hurnett r. Lynch, and that before tlie court tlie defendant's implied promise would only be to indemnify against such calls as should be made while he was beneficially interested, whereas the plaintiff Humble claimed an indemnity against calls made after the defendant had parted with his interest. This, no doubt, is a very impor- tant distinction; and though the Court of Exchequer expresses an opinion that there was no contract of indemnity at all, it adverts to the difference between a claim to indemnify during the time the defendant is beneficially interested, and a claim to be indemnified after he has ceased to be interested. The circumstances of the present case are, therefore, distinguishable from those in Humble v. Langston, and it consequently is not so direct an author- ity against the plaintiff's claim in the present case, as at first sight it might appear to be. " It seems to us, therefore, that the circumstances of this case bring it di- rectly within the principle upon which Burnett v. Lynch was decided. In the present case the defendant entered into no express agreement to pay calls or indemnify, but he accepted the only transfer the plaintiff could give, and which invested him with full power to become the registered owner of the shares when he pleased. That transfer expressed that the transferee took them sub- ject to the same rules as those under which the plaintiff held them, one of which was, that the registered owner should pay the calls. It could hardly liave been the intention of the parties, that if the defendant, for his own bene- fit, omitted to make a perfect transfer, by registration in the company's books, the jilaintiff should still continue to pay the calls; and if that was not the intention, was it not understood between them that the defendant should save the plaintiff harmless from any calls made during the time when he was virtually owner of the shares? " In Burnett v. Lynch, a lea.se had been granted to Burnett, in which he covenanted to pay the rent and repair the premises; his executors assigned the lease to Lynch, subject to the performance of the covenant, but without any express covenant or contract by him that he would pay the rent or perform the covenant. The executors were called upon by the landlord, and obliged to pay damages for not repairing, according to the covenant, during the time Lynch was assignee; the executors brought an action on the c;ise against Lynch, founded on a breach of duty in not repairing. In giving judgment for the plaintiffs, Abhott, C J., says, ' It is true, the defendant entered into no express covenant or contract that he would pay the rent or perform the cove- nants; but he accepted the assignment subject to tiie performance of the covenants; and we are to consider whether any action will lie against him. If we should hold that no action will lie against him, the consequence will follow, that a man having taken an estate from another, subject to the pay- ment of rent and performance of covenants, and having therebv induced an i«i3yj 134 TRANSFER OF SHARES. [PART II. name, beyond the amount of the trust property.^ And the trans- feree of shares, having taken upon himself the position and attitude of owner, cannot be allowed to excuse himself from responsibility by pleading irregularity in transfers, and it makes no difference in this respect whether he hold as trustee or bcheficially. 7. Thus where reserved shares were offered to the shareholders and the executors of such as are deceased, in proportion to the original shares, it was held that executors who accept shares must * be placed upon the list of contributories in their own right, and not in their representative capacity.^ 8. "Where the owner of shares in the public stocks, or in joint- stock companies, sells the same to raise money, and loans the money upon mortgage of real property, with conditions for having the shares replaced, at a given time, which is not done, but the mortgage continued, the court will allow the redemption of the mortgage upon retransfer of the shares stipulated, at the price on the day of the decree, although the funds had f alien. ^"^ undertaking in the other that he would pay the rent and perform the cove- nants, will be allowed to cast that burden upon the other person. Reason and common sense show that that never could be intended.' He then goes on to say, that though an action on the case would lie, there might also be an action of assumpsit. " With the distinction of circumstances to which we have already adverted between this case and that of Humble v. Langston, we think that the princi- ple upon which the case of Burnett ». Lynch was decided, is directly appli- cable to the present case, and that the plaintiff is entitled to make the rule absolute to set aside the nonsuit, and enter a verdict upon the first count of the declaration and so much of tlie pleas as may be applicable to that count." 8 Ex parte Hoare, 2 Johns. & H. 229; s. c. 8 Jur. n. s. 713. 9 Fearnside & Dean's Case, Law Rep. 1 Ch. Ap. 231. 10 Blyth V. Carpenter, 12 Jur. n. s. SUS; s. c Law Rep. 2 Eq. 501. [*140] ^ 41.] PRACTICES TO IIAISE TUi: J'UICE OF .SHAKES. 135 SECTION X. Fraudulent Practices to raise the Price of Shares. 1. Courtsnf equity will vacate sales wliere ' acted hortci Jidc, Mu\css tlie sliares j)rice of shares is raised by fraudu- were valueless. lent practices. G. INIaiiagers of company liable in tort 2. Necessary parties. E.xtent of relief. | to party injured. 3. 4. Declaration of dividends, none be- , 7. Purchase of sliares in another com- ing earned, e. g., will vacate sales, and subject directors to indict- ment. 6. Equity will not interfere where vendor pany considered. 8. Bona fide purchaser of sliares fraudu- lently issued acquires same riglits as other shareholders. § 41. 1. All fi-audulent practices, cither of the shareholders or directors, resorted to for the purpose of raising the price of shares in the market, where sales have hecn induced in faith of the truth of such representations, will be relieved again.st in a court of equity.^ («) As where the directors of a joint-stock company, in ^ Stainbank i'. Fernley, 9 Sim. 556. And in a more recent case, Lefever v. Lefever, 30 N. Y. 27, the plaintiff, a director in a bank, who had been such from its organization, who usually attended the meetings, and was actually present and took part in the proceedings of the board of directors when tlio last dividend was declared, having purchased from the cashier twenty shares of stock, brought an action to have the contract rescinded, and to recover back the money paid, on the ground of false representations and concealments by the cashier as to the value of the stock and the condition of the bank at the time of the purchase. It was held that he was not estopped from setting up his actual ignorance of the condition of the bank at the time of the sale; that although lie was a director, having the means of knowledge, he was not in the particular transaction chargeable with notice of tlie condition of the bank; that if he was actually ignorant of its condition, the fraudulent vendor would be responsible to him for the deceit, as to a stranger; and that it was not a case in which the plaintiff was legally bound to know the truth or falsity of the vendor's representation.s. In the case of Smith v. Reese River Silver Mining Co., Law Rep. 2 Kq. 264; s. c. 12 Jur. n. s. G16, where a person was induced to take shares in a company on faith of a statement in the prospectus as to the nature of the property, •which statement the promoters had no ground for believing to be true, and which turned out to be untrue, it was held, that he was entitled to an injunction restraining the company from enforcing calls against him, although ('0 Redford r. Bagshaw, 2!) Law 3 Macq. A]\ Cas. 783; Crossr. Sackett, Jour. Exch. 59; Davidson v. TuUoch, 2 Bosw. 617. [*140J 136 TRANSFER OF SHARES. [PART II. order * to sell their shares to advantage, represented in their reports, and by their agents, that the affairs of the company were in a very prosperous state, and declared large dividends, at a time when the affairs of the company were greatly embarrassed. 2. A person who had been induced by these means to purchase shares of one of the directors, filed a bill against that director, praying to be paid his purchase-money and offering to retransfer the shares ; a demurrer for want of equity, and because all the other partners in the transaction ought to have been made parties, was overruled. But where a bill was filed against the public officer of a joint-stock bank, charging a similar fraud, through the fraudu- lent representations of the directors, in their reports, as to the prosperous state of the company's affairs, and that the plaintiff had thereby been induced to purchase five hundred shares in the bank, and praying that the sale might be declared void as between him and the company, and that they might be decreed to repay tlie purchase-money, it was held, that as the litigation was between one member of the partnership and the other members, the public * officer was improperly made a party, as representing the company, and a demurrer was allowed.^ But in a case before the Court of Chancery Appeal, it was decided that the directors of a railway company are in the position of trustees, and if the purchaser has not by his own conduct affected his rights, the company cannot, as against him, retain money acquired from a fraudulent sale of their the articles of association to which the prospectus referred wonld hare informed the purchaser that the statement in the prospectus was not justified. But one who claims to be injured by such fraudulent practices of directors and other agents of corporations must bring his action for relief at the earliest practicable opportunity after having learned the probable fact of such fraudu- lent practices. Clarke v. Dickson, 1 Ellis, B. & E. 148; s. c. 5 Jur. x. s. 1029; Jn re Hop & Malt Co., Law Rep. 1 Ecj. 483. One who purchases upon the facts stated in a prospectus must be held to have notice of facts stated in other documents expressly referred to, unless there are special grounds for pre- suming the contrarj'. lb. See also Ex parte Briggs, 12 Jur. x. s. 322; s. c. Law Rep. 1 Eq. 483. 2 Seddon v. Cotmell, 10 Sim. 58. It was further held, that it is not com- petent for the party to file a bill against the company and some of the direc- tors, praying, that if he is not entitled to relief against the company, he may have it against the directors; and that such a bill is demurrable, on the ground that the prayer for relief should be absolute, for relief against the directors, in order to maintain the bill against them. But it is not necessary to make all the parties to a fraud defendants in a bill for relief. [*141, *142] § 41.] PRACTICES TO RAISE THE PRICE OF SHARES. 1S7 property to liim, throngli the false representations of their direc- tors. J>ut the court held that the plaintiff was not entitled to a decree aj^ainst the directors, hut was entitled to a decree against the company for his money and interest.^ And it seems to he settled, by the decision of the House of Lords, that in En.irland and in Scotland, for any fraudulent act done by the di- rectors, without the range of the powers of the company, whereby third persons suffer damage, they arc personally liable to an ac- tion : but for all such acts within the power of the body of the shareholders to sanction, although the directors might not have been justified in what they were doing, there could be no right of action.'* And a director cannot screen himself from responsibility for any imposition which is brought upon others by means of tlic circulation of a prospectus through his instrumentality, upon the ground that the document is capable of a construction by which it may be regarded as true. It is for the jury to say whether that is the natural sensc.^ And it is not necessary that there should have been any direct communication between the plaintiff and defend- ant in order to subject the defendant to an action for false repre- sentation. If the defendant authorized the circulation of the prospectus before the public, containing false representations, by * which the plaintiff was misled, it is the same as if the defendant had made such rejiresentations to hhii personally.^ And the fact that other inducements were also held out to jdaintiff by other par- tics by which he was partially influenced, will not excuse the de- fendant.^' But the representation of an olTicer of the company as to the effect of deeds, which it forms no part of his duty to expound, will not release the party executing the deed from his liability.^ 3. The declaring of dividends by the directors, where none have been earned, if done by them for the purpose of fictitiously enhancing the price of shares, for their own benefit, is regarded as such a fraud as will relieve a party who has purchased shares in faith of such facts, at prices greatly beyond their value," and the transfer of the shares will be set aside. * Conybcare r. Now Brunswick & Canada Railway & Land Co., 1 De G. F. & J. 57S; s. c. 6 Jur. x. s. 518. * Davidson v. Tiilloch, 3 Macq. Ap. Cas. 783; s. c. G Jur. n. s. .")13. ^ Clarke c. Dickson, 6 C. B. n. s. 453; s. c. 5 Jur. n. s. lOiO. See also Ex parte Nicol, 3 De G. F. & J., 387; s. c. 5 Jur. x. s. 205. ' Athenaeum Life Insurance Co., 5 Jur. N. s. 216; s. c Johns. Ch. Eng. 451. ' Burnes v. Pennell, 2 H. L. Cas. 497. [♦143] 138 TRANSFER OP SHARES. [PART II. 4. In this case," Buriies v. Pcnncll, Lords Campbell and Brougham concurred in saying: "Dividends arc supposed to be paid out of profits only, and where directors order a dividend to be paid, when no such profits have been made, without expressly saying so, a gross fraud is practised, and the directors are not only civilly liable to those whom they have deceived and injured, but are guilty of conspiracy, for which they are liable to be prosecuted and punished." 5. Where both parties labored under the same delusion in re- gard to the value of stock, relief could not be granted, of course, on the ground of fraud in the sale, and a court of equity will not ordinarily interfere to set aside a sale on the ground of mutual misapprehension as to the state and condition of the subject-matter, unless in extreme cases, as where that is sold as valuable which is wholly valueless, or does not exist.^ To constitute a fraud in such cases, it is requisite, ordinarily, that the parties should have been upon unequal footing in regard to their means of access to the knowledge of the true state of the company's funds and prop- erty, and that the party gaining the advantage in the bargain, should, in some way, participate in giving currency to the false estimate of its condition, beyond the mere fact of repeating * the report of the directors, where both parties have equal means of judging of its correctness. 6. It seems to be regarded as settled law, that in case of such false representations to raise the price of stocks, and damage thereby sustained, the suffering party may maintain an action of tort against the party making the false representation, although it were not made directly to such injured party, there being no necessity for any privity between the parties to support an action of tort for a false representation. But where the action is ex contractu or quasi ex contractu, some privity is indispensable to the maintenance of the action.'-* 8 1 Story Eq. Jur. § 142; Hitchcock v. Giddiiigs, 4 Price, 135, 141; 2 Kent Com. 409. 3 Gerhard r. Bates, 2 Ellis & B. 470; s. c. 20 Eng. L. & Eq. 129. In this case the defendant was one of the promoters and managing directors of a joint-stock company, and in offering the shares for sale guaranteed a certain semi-annual dividend to purchasei's, and the plaintiff purchased on the faith of such general guaranty. It was held that he could not maintain an action on the guaranty, but might recover in tort, as for a fraudulent representation. Ir^fra, %i 2:34, 240. [n44] § 41.] PRACTICES TO IIAISE THE PRICE OP SHARES. 130 7. It has recently been decided that a bona fide sale and trans- fer of property of one company to another, in consideration of shares in the one company being transferred to the other, is not such a return of ca})ital as would be in contravention of the En?}« /iWe purchaser of have been paid up. is entitled to rely shares, the certificates for which de- on the truth of the representation, clare on their face that the shares [•145] 140 TRANSFER OF SHARES. [part II. SECTION XI. Liahilltij of Company for not registering Transfers. 1. Company is liable to an action. 2. Whetiier mandamus will lie to compel record. 3. Company not bound to record mort- gages of shares. 4. Grounds of denying mandamus. 5. Bill in equity most appropriate remedy. C. Rule of damages. 7. Fraudulent cancellation of an un- registered transfer will not affect; the title. § 42. 1. It seems to be settled in England, that an action willj lie against a joint-stock company, who neglect or refuse, upoi proper request, to register shares and deliver new certificates, aftei the deed of transfer has been sent to the secretary, (a) Damages! may be recovered, it seems, by reason of such refusal of the com- pany, whereby the party is deprived of the right to attend and! vote at the meetings of the company, and especially where callsj are made upon the shares, and in consequence of non-payment the shares are declared forfeited and sold.^ 1 Hodges Railw. 123; Catchpole v. Ambergate Railway Co., 1 Ellis & B.j 111; IG Eng. L. & Eq. 163. See also Wilkinson v. Anglo-California Gold* Co., 18 Q. B. 728; s. c. 12 Eng. L. & Eq. 444. In regard to the right to sus- tain a writ of mandamus in England, to compel such transfer on the books of the company, see Rex v. Worcester Canal Co., 1 M. & R. 529; Regina v. Liver- pool, Manchester, & Newcastle-upon-Tyne Railway Co., 11 Eng. L. & Eq. 408; Sargent v. Franklin Insurance Co., 8 Pick. 90. So also an action on the case will lie for not transferring stock. The rule of damages, where the stock has been sold as the property of the vendor, is the value of the shares at the time of the refusal; Sargent v. Franklin Insurance Co., or, as it has sometimes been held, the highest value between the time of refusal and the commencement of the action. Kartright v. Buffalo Commercial Bank, 20 Wend. 91; s. c. 22 Wend. 348. And some cases extend it even to the time of trial. But see supra, §§ 30, 38. Where stock in a railway is purchased out of the earnings of a married woman and registered in her name, she and her husband may sue jointly (a) TJie company is liable to the assignor in an action founded on con- tract. His claim is a legal claim for damages. But where the remedy at law would be inadequate, as where the assignor would remain liable to creditors or other shareholders, a bill [*145] will lie for specific performance. See Freon v. Carriage Co., 42 Ohio St. 30; Shepherd v. Gillespie, Law Rep. 5 Eq. 293 ; Paine v. Hutchinson, Law Rep. 3 Ch. 388. The assignee, it seems, may also maintain an action. See supra, §22, note (d). § 42.] LIABILITY OF COMPANY FOR NOT IIEOISTERTNG. 141 * 2. There can be no question probably in this country, that where the company refuse on reasonable request to make the ])roper entry uj)on their books of the transfer of shares whereby the owner is liable to be deprived of any loiral ritrht or pecuniary advantage, the company may be compelled to do their duty in the ))remises, by writ of mandamus. (Jj) 3. IJut it has been held, that the comj)any are not bound to roll, C. J., that, " if the company were bound to register this deed, they must become custodians of it, and must incur great responsibility as to its safe custody, and that therefore convenience requires that they should only be bound to register mere transfers, passing the legal title, and showing who is the legal owner of the shares." ^ 4. But a mandamus to compel the registry of the transfer of shares in a railway company to an infant,^ was denied. And the for dividends, and if she sue alone, it is only ground of abatement. Dalton V. Midland Railway Co., 13 C. B. 474; s. c. 20 Eng. L. & Eq. 273. Stock cannot be transferred so as to pass the title after the dissolution of the corporation, the shareholders being then entitled only to a share in the assets. James v. Woodruff, 2 Denio, 574. Where a company has registered a transfer, which is alleged to be a for- gery, and is threatened with a suit from both the transferor and transferee, the court will not grant an interpleader. Dalton r. Midland Railway Co., 12 C. B. 458; s. c 13 C. B. 474; 22 Eng. L. & Eq. 452. ^ Rogina v. General Cemetery Co., G Ellis & B. 415; s. c. 3G Eng. L. & Eq. 120. 2 Regina v. Mid. Counties & Sh. Junction Railway Co., 15 Ir. Com. Law, 514, .525; 8. c. 9 Law T. Rep. n. s. 151. But the practice of compelling the registry of transfers, by mandamus, seems well established, even where, they {li) This seems doubtful. In gen- accordingly, the weight of authority eral, the writ of mandamus should is against its employment in this not issue where there is no public case. See Stackpole r. Seymour, interest involved, nor where there is supra; Lamphere v. United Work- other ample remedy. Stackpole v. men, supra; Freon r. Carriage Co., Seymour, 127 Mass. 104; Lamphere 42 Ohio St. 30; Baker v. Marshall, V. United Workmen, 47 Mich. 429. 15 Minn. 177; Durham r. Monumental Besides, it is a legal remedy, and Silver Mining Co., (» Oreg. 41; State should not be granted to one who v. Guerrero, 12 Xev. 105. stands upon a mere equity. And [n46] 142 TRANSFER OF SHARES. [PART II. * court of equity declined to interfere to compel the registry of the transfer of shares when the company are denied the opportu- nity of inspecting the certificates by their directors.* 5. The more effectual, and at present the more usual, remedy against corporations for refusing to allow the transfer of stock upon their books into the name of the real owner is by bill in equity. And in one case,^ where the party whose stock had been allowed by the bank to be transferred into the names of those who had purchased it under forged powers of attorney sought redress by an action at law, the court said, " We cannot do justice to this plaintiff unless we hold that the stocks are still his," and therefore denied the action for the value of the stocks, but al- lowed a recovery for the dividends which had been declared after the transfer. 6. And there is the same difficulty in compensating the pur- chaser of stocks, where a transfer on the books has been denied in an action at law. In some cases this has been attempted to be done by allowing the party to recover the highest market price of the stock between the refusal to transfer and the trial. But the only rule at all analogous to settled principles seems to be that the corporation shall pay the value of the stock at the date are not of a character to induce the most favorable consideration, e. g., a transfer to a pauper to enable the transferor to get rid of liability, it being intended to be out and out, with no secet trust for the transferor. lb. In general, one who understandingly consents to have shares transferred into his name upon the public registry of shares, must be content to assume all the responsibility towards the public and the other shareholders not conusant of the special contract, which any other shareholder would incur. But as be- tween the company and the purcliaser there may be special grounds of relief. Ex parte Coleman, 1 De G. J. & S. 495; Ex parte Grady, id. 488; Ex parte Barrett, 10 Jur. n. s. 711; Ex parte Saunders, id. 240; s. c. 4 Gif. 179. Any transaction of this kind will not be disturbed, after considerable lapse of time. Ex parte Spackman, 1 De G. J. & S. 504; s. c. 10 Jur. n. s. 911; Ex parte Lane, id. 25; Ex parte Spackman, 11 Jur. n. s. 207. In Houlds- worth V. Evans, Law Rep. 3 H. L. 263, it is distinctly declared, as the settled doctrine of the English courts, that any arrangement betw'een the com- pany and the shareholders, although irregularly entered into as between the directors and the shareholders, will nevertheless bind the body of the share- holders, unless they take active steps to have it set aside within some short and reasonable time after it becomes known to them Infra, § 135, pi. C, and note. * In re East Wheal Martha Mining Co., 33 Beav. 119. 6 Davis V. Bank of England, 2 Bing. 303; infra, §241. [*147J § 43.] \vhi:n calls becomk perfected. 143 of their refusal to transfer it, as that is the time wlicn the corpo- ration became in default, and when by said default the stock, as between the parties, became theirs.^ The question of the eU'ect of forged and fraudulent transfers is very ably discussed bv the Court of Chancery Appeal in Tayler v. Great Indian Peninsula Railway." 7. In a somewhat recent case,^ one A. authorized a stock-broker to purchase for him some shares in a company, and paid tlie jiurchasc-money, and the shares were duly transferred to him, by written instrument, but his name was not registered. Afterwards the stock-broker, on a false pretence, prevailed on A. to cancel liis signature to the instrument of transfer, and to sign a deed of transfer to him, the broker ; A. believing, on the representation of the broker, that he was executing a fresh transfer to himself in the place of that which had been cancelled. The broker trans- ferred them to an innocent holder as security for £5,000, money lent a short time before. Held, on a bill filed by A., that the original transfer to him must have its effect; and that the shares were thereby vested in him, and still remained, notwithstanding the cancellation and subsequent transactions. ♦SECTION XII. When Calls become Perfected. Calls arc made when tlie sum is. as- sessed ; notice may be given after- wards. 2, 3. Directors tlie proper autliority to make calls. 4. Manner of giving notice and of proof. §43. 1. The English statute of 1845, called the Companies' Clauses Consolidation Act, requires all calls to be paid before any valid transfer can be made. Under this statute, and similar ])ro- visions in special charters, it has often been made a question, when a call may be said to be made. It seems to be considered " Pinkerton r. Manchester & LaMrence Railway Co., 1 Am. Law Re^ 96; s. c. 42 N. II. 424. ' .5 Jur. N. s. 1087; s. c. 4 Do G. & J. .5o0. See infra, §§ 40, 211. And s Building Association r. Sendemeyer, 50 Penn. St. 67. * Donaldson v. Gillot, 12 Jur. x. s. 959; s. c. Law Rep. 3 Eq. 274 id see [*148] 144 TEANSFER OP SHARES. [PART II. that the word "call" in this connection may refer to the resolution of tlie directors, by which a certain sum is required to be paid to the company, by the shareholders,^ or secondly to the notice to the shareholders of the assessment, and the time and place at which they will be required to make payment, and the amount to be paid. But it seems finally to be settled, that the company are not obliged to regard any transfer, made after the resolution of the directors making the assessment, which need not specify the time of payment, but that may be determined by a subsequent act of the board.2 (a) ^ Ex parte Tooke, 6 Railw. Cas, 1 ; North American Colonial Association V. Bentley, 19 Law J. Q. B. 427; 15 Jur. 187. A resolution of the board of directors requiring the stockholders to pay an instalment of ten per cent every thirty days, on all cash subscriptions, until the whole is paid, and that due notice thereof be given, is admissible evidence of calls for the whole subscription. It was here considered that the words "month," and " thirty days," used in different portions of the act, must be considered of the same import. Heaston v. Cincinnati & Fort Wayne Rail- road Co., 16 Ind. 275; Sands v. Sanders, 26 N. Y. 239. 2 Great North of England Railway Co. v. Biddulph, 2 Railw. Cas. 401; s. c. 7 M. & W. 243; Newry & Enniskillen Railway Co. v. Edmunds, 5 Railw. Cas. 275; s. c. 2 Exch. 118, 122; Pauke, B., in Ambergate, Notting- ham & Boston & Eastern Junction Railway Co. v. Mitchell, 6 Railw. Cas. 235; s. c. 4 Exch. 540; Regina?;. Londonderry &Coleraine Railway Co., 13 Q. B. 998. Unless there is something in the subscription or the charter and by-laws of the company requiring notice of calls, or making the subscription payable on calls, it is said in Lake Ontario, &c. Railroad Co. v. Mason, 16 N. Y. 451, that it is not indispensable that notice of calls should be given the subscribers before suit. But this seems contrary to the general course of decision on that point, and at variance with the idea of a call, or assessment; and such seems to be the general understanding of the rule in the American courts. But these questions will depend very much on the special provisions of the statutes in the different states, by which the matter is controlled, and somewhat on the special terms of the contract of subscription. Heaston v. Cincinnati & Fort "Wayne Railroad Co., 16 Ind. 275. Thus, in the present case it was held that the general railway law of Indiana required notice and a personal demand be- fore proceeding to forfeit the stock, but not before suit to recover instalments; and that as to calls the statute required the subscribers to take notice of the action of the directors. And it was further said, that where the articles of association or the preliminary articles of subscription, or both combined, con- (a) Calls are not always necessary, periods. "Waukon Railroad Co. v. e. g., when the charter provides that Dwyer, 49 Iowa, 121. shares shall be payable at certain [*148] I § 43.] WHEN CALLS BECOME PERFECTED. 145 * 2. It seems the diiectoi-s, and not the company, arc the proper parties to make calls under the En<_4ish statutes, (i) 3. This seems to have been decided uj)un the general ground of the authority of the directors.^ 4. The (question of what shall amount to a good call, and how the same may be shown in court, is considerably examined in Miles V. Bough.* (c) It is here decided, that no person coidd ])e sued for non-payment of a call till he had received due notice thereof, although the statute did not require notice in express terms ; that an order to pay the money at a given broker's was a good call ; that in the declaration it Avas suflicient to allege that the calls were made and the defendant duly notified, without further speci- fication of particulars ; and that the jury may infer sufficient no- tice from the fact of an express promise to pay, notwithstanding it appeared that a defective notice had been sent, unless it appeared that was the only notice given, when the case must be decided upon the sufficiency of the notice in fact given. tain an undertaking to pay the amount subscribed on certain conditions, an action will lie to enforce the stipulations upon proof of the subscription and the performance of the conditions. 8 Ambergate, Nottingham & Boston & Eastern Junction Railway Co. v. Mitchell, 4 Exch. 540, pei- Pollock, C. B., who said, " The next objection is, that the directors made these calls; but they were competent to do so, as they may do all things, except such as are to be done by the shareholders at a gen- eral meeting; and there is nothing in the act which makes it necessary that the company should make calls at a general meeting; " and Baron Pakke spoke to the same effect. ^ 3 Q. B. 845. Defective notice by publication is not aided by personal notice of a shorter time. Sands r. Sanders, 2G X. Y. 239. {h) In general, this depends on the be delegated. Silver Hook Road r. provisions of the charter. Whomso- Greene, siipra. ever the charter designates is agent in (r) Where the charter does not this behalf ; if the board of directors, provide otherwise, it is in general neither the jiresident nor a minority unnecessary to give notice. See Eppes of the board can make a call. Silver v. Mississippi Railroad Co., 3.3 Ala. Ilook Road v. Greene, 12 R. I. 101; 33; Eakright r. Logansport Railroad Mutual Fire Insurance Co. v. Lowell, Co., 13 Ind. 404; Wilson v. Wils 59 'Me. 501. Nor can the power Valley Railroad Co., 33 Ga. 4 Ott. VOL I. -10 [*149] 146 TRANSFER OF SHARES. [PART II. *SECTION XIII. Transfer by Death, Insolvency, or Marriage. I 1. Mandamus lies to compel the registry' of successor. 3. In case of death, personal representa- tive liable for calls. 4. Notice requisite to perfect the title of mortgagee. 5. Stock in trust goes to new trustees. 6. Assignees of insolvents not liable for the debts of the company. 7. Effect of marriage oifeme sole. § 44. 1. The title to shares in a railway is liable to transfer by the death, bankruptcy, or insolvency of the proprietor, or by mar- riage of the female owner of such shares. In such case the Eng- lish statute requires a declaration of the change of ownership to be filed with the secretary of the company, and the name of the new owner is thereupon required to be entered upon the register of shareholders. A mandamus will lie to compel the clerk to make the proper entry in such case.^ 2. These incidents are so much controlled by local laws, in different jurisdictions, that it would scarcely comport with our object to state more than the general principles affecting them. In most of the United States all property (especially personal estate as railway shares), in the first instance, upon the decease of the proprietor, vests in his personal representative, in trust, first for the payment of debts, and afterwards for legatees, or in default of them, the heirs of such proprietor. 3. And so far as regards voting upon such shares, the title of the executor or administrator will ordinarily be sufficient. Before the name of the executor or administrator is entered upon the books of the company, as a shareholder, the estate only could be held liable for calls probably, and perhaps the same rule of liability would obtain after that.^ But in general where shares 1 Rex V. AVorcester Canal Co., 1 :\I. & R. 529. 2 Fyler v. Fyler, 2 Raihv. Cas. 873; s. c. 3 Beav. 550; Jacques v. Cham- bers, 2 Coll. C. C. 435; s. c. 4 Railw. Cas. 499. But the administrator or other personal representative of a deceased shareholder may, under the recent English statute, maintain an action against the company for refusal to regis- ter his name as successor to the title, and after recovery of damages he is entitled to a mandamus to compel the company to register his name. He is also entitled to the prerogative writ of mandamus in such ca?es at common law. Xorris v. Irish Land Co., 8 Ellis & B. 512; s. c. 30 Law T. 132. [*150] § 44.] TRANSFER BY DEATH, INSOLVENCY, OR MARRIAGE. 147 in a joint-stock * company arc bcqiieatlied specifically, the legatee takes tlieni subject to all future ealls.^ But where the payment of future calls is indispensable to bring the shares into the state in -which the testator regarded them in his will, such calls should be paid by the estate.* 4. In case of death or insolvency, the title of a mortgagee first notified to the company will commonly have priority.^ Notice to the comi)any is necessary to perfect the title of a mortgagee, in case of bankruptcy or insolvency.'' 5. As to the title of the bankrupt, all shares standing upon the register of the company in his name will be regarded as under his control, order, and disposition, and w'ill, under the English statutes, go to the assignees.^ But stock in any incorporated company standing in the name of the bankrupt as trustee, is to be transferred by the assignee to the name of new trustees, and a court of chancery w^ill so order.'' G. The assignees of an insolvent estate, a portion of whose assets consists of shares in a manufacturing corporation, are not liable under special statutes making shareholders liable for the debts of the corporation. That is a provision of positive law, and is to be construed strictly.^ 7. The marriage of a feme sole, being the owner of shares, will have the effect to transfer them into the control of the husband, the same as any other personal estate, unless where it is provided otherwise by statute, or the husband chooses to leave them still under the control of the wil'c.^*' 8 Blount V. Ilipkins, 7 Sim. 43, 51; Jacques r. Chambers, 2 Coll. 4:^)5; Clive r. Clive, Kay, GOO; Wriglit r. Warren, 4 De G. & S. 3G7; Adams v. Ferick, 26 Beav. 384. * Armstrong r. Burnet, 20 Beav. 384. 6 Cummhig v. Prescott, 2 Y. & Col. C. C. 4S8. " But where all parties are partners, notice will sometimes be implieil. ^.r /*o)7pWaitman, 2 Mont. & A. ;)n4; Duncan v. Chamberlayne, 11 Sim. 121; Etty V. Bridges, 2 Y. & Col. Eq. 4SG. 7 Shelf. Railw. 118-121. « Ex parte Walker, 19 Law J. Bank. 3. » Gray v. Coffin, 9 Cush. 192. ^" Schouler Dom. Rel. Ill elseq.y and cases cited; Richardson v. Merrill, 32 Vt. 27, and cases cited. [♦151] 148 TRANSFER OF SHARES. [part II. SECTION XIV. Legatees of Shares. 1. Entitled to election, interest, and new shares, but not to bonds. 2. Shares owned at date of will pass, al- though converted into consolidated stock. 3. Consolidated stock subsequently ac- quired will not pass. § 45. 1. Legatees of railway shares have the election out of which class of shares their legacy shall be paid, when there is more * than one class of the same description found in the will. And they are entitled to the income of the shares, after the death of the testator, and to receive any advantage, by way of new shares resulting from the ownership of the shares. ^ But a specific legatee of shares is not entitled to a bonus on such shares, declared after the decease of the testator, but arising out of moneys due the company from the testator, and which claim was compromised by his executors, but such bonus belongs to the general fund of personal estate.^ And such legatee must bear the calls which are made after the testator's death, unless there is something in the will to show a different intent.^ 2. A bequest of the testator's railway shares, of which he should be possessed at his decease, was held to pass such rail- way shares specifically named in the will as the testator had at the date of his will, although subsequently converted into con- solidated stock of the same company, by a resolution of the company. 3. But that other consolidated stock of the same company owned by testator at his decease, did not pass under the will, the same having been purchased after the execution of his will.^ ^ Jacques v. Chambers, 2 Col. C. C. 4.35; s. c. 4 Railw. Cas. 205; Tanner V. Tanner, 5 Railw. Cas. 184; s. c. 11 Beav. 69. And it is held in this last case that on a bequest of railway shares and all right, title, and interest therein, money paid beyond the calls will pass to the legatee. 2 Maclaren v. Stainton, 27 Beav. 4G0; s. c. 6 Jur. n. s. 360; Loch v. Venables, 27 Beav. 598; s. c. 6 Jur. n. s. 238. 8 Day V. Day, 1 Drewry & S. 261; s. c. 6 Jur. N. s. 365. * Oakes v. Oakes, 9 Hare, 666. [*152] §46.] SHARES IN TRUST. 149 SECTION XV. Shares in Trust. 1, 2. Company may safely deal with reg- istered owner. 3. But equity will protect the rights of cestuis que trust. i. Discussion of the rights of cestuis que trust in stock certificates. §46. 1. By the English statute, railway companies are not hound to sec to the execution of trusts in the disbursement of their dividends, but are at liberty to treat the person in wliose * name tlie shares are registered as the absolute owner. It would seem that in the case of the bankruptcy of a shareholder in a joint-stock company, a court of equity will sometimes protect trust funds, although registered in the name of the bankrupt, both from the claim of the assignee and the company, Avho have made advances to the nominal owner, upon the faith of his being the true owner, but without any pledge of the stock. ^ 2. In general, in this country, it is believed railway companies will be protected in dealing bona fide with the person in whose name shares are registered on the books of the company, as the absolute owner, notwithstanding any knowledge they may have of the equitable interest of third parties, (a) ^ Pinkett i;. Wright, 2 Hare, 120. The opinion in tliis case is a very elaborate opinion, by Vice-Chancellor Wigram, on the subject of protecting the interest of cestuis que trust in the stock standing in the name of a trustee who has become bankrupt. The trustee in this case was also the proprietor of shares in his own right, all standing in his name, without anything on the books of the company to distiiiguis-h which were trust funds. It was held that the trustee must be presumed to have pledged such stock as belonged to himself, and not that of his cestuis que trust, and that shares which stood in tlie name of the trustee at the time of the bankruptcy, and thenceforward re- mained in his name, might fairly be presumed to be identical with those in which the trust funds were invested, the number of shares being the same. Notice to the company is indispensable to create an equitable mortgage of railway shares. Ex parte Boulton v. Skelehley, 29 Law T. 71; s. c 1 De G. & J. 173. (n) The company, however, should not pay to the holder of the legal title after notice of an equity. And the courts will protect the rights of equi- table assignees. See Parrot t r. Byer.«<, 40 Cal. 614. Pennsylvania Railroad Co.'s Appeal, SG Penn. St. 81. [•153] 150 TRANSFER OF SHARES. [part II. 3. But there can be no question, a court of equity will always protect the interest of a cestui que trust, when it can be done without the violation of prior or superior equities, which have bona fide attached. 4. It was recently held after careful examination of the author- ities,^ that the holder of stock, as trustee, has ^;rj;??a facie no right to pledge it as security for his private debt, and one who accepts the pledge under such circumstances, acquires no rights against the cestui que trust. And the word " trustee " in the cer- tificate, in connection with the name of the holder, is notice to all persons to whom the certificate may be delivered, sufficient to put the party on inquiry as to the nature of the holder's title, and the character and extent of the trust. ^SECTION XVI. Tfie extent of Transfer requisite to exempt from claim of Creditors. 1. How transfer of stock perfected as to creditors. 2. Reasonable time allowed to record transfer. 3, 4. In some of the states no record re- quired, n. 3. Question furtlier considered. § 46 a. 1. The question of what constitutes a valid transfer of shares in a joint-stock corporation, so as to exempt them from 2 Shaw V. Spencer, 8 Am. Law Reg. n. s. 290; s. c. 100 Mass. 382. The decision here falls short, probably, of what the authorities would support if the case required it. But the usages of the Stock P^xchange, whereby trus- tees are enabled to defraud their cestuis que trust for the benefit of speculators, receives a moderate but very just rebuke; the court saying that certificates of stock in blank are not to be regarded as negotiable instruments, cutting off all equities of bona fie parties in interest (s. p. Sewall v. Boston Water Power, 4 Allen, 272); and that no usage or custom of brokers, or cour.se of busi- ness can avail to defeat or qualify the established rules of law, recognized in courts of equity. The following significant intimation of the court is worthy of notice: "The circumstance that stock certificates, issued in the name of one as trustee and by him transferred in blank, are constantly bought and sold in the market without inquiry, is likewise unavailing. A uaage to disrerjard one^s legal duty, to he if/norant nf a rule of law, and to act as if it did not exist, can have no standing in the courts." [*154] § 40 a.] TRANSFER KXE.Ml'T FROM CREDITORS. 151 attaclnnciit and levy by creditors of the transferor, is consider- ably discussed in a case in New Hampshire by a jud^^e of larj^e experience, and the result reached, that upon a pledge of stock in a railway corporation in New Hampshire, there should be such delivery as the nature of the thing is capable of, and to be good against a subsequent attaching creditor the pledgee must be clothed with all the usual muniments and indicia oi ownership; that by the laws of New Hampshire, a record of the ownership of shares must be kept, by domestic corporations, within the state, and by oflicers resident there ; and that on the transfer of stock the delivery will not be complete, as to creditors, until an entry is made upon such stock-record, or it be sent to the office for that purpose, and the omission thus to perfect the delivery will be prima facie, and if unexplained * conclusive evidence of a secret trust, and therefore, as matter of law, fraudulent and void as to creditors.^ 2. But in the case last cited it is said that when^ the transfer is made at a distance from the office and the old certificate sur- rendered and a new one given by a transfer agent residing in a neighboring state, proof that the proper evidence of such transfer was sent by the earliest mail to the keeper of the stock record to be duly entered, although not received until an attachment liad intervened, would be a sufficient explanation of the want of delivery, and the transfer would be good against the creditor. Any unreasonable delay in perfecting the record title to such shares leaves them liable to the claims of creditors. 3. But where the charter of the company or the general laws of the state contain any specific restriction or requirement in regard to the transfer of shares, it must be complied with or the title will not pass.^ (a) ^ Pinkerton v. Manchester & Lawrence Railroad Co., 1 Am. Law Reg. N. s. 9(3 ; s. c. 42 X. IL 424. - Fi.slier v. Essex Bank, 5 Gray, 373; Sabin v. Woodstock Bank. 21 Vt. 362; Pittsburgh & Connellsville Railroad Co. v. Clarke, 29 Peun. St. 140. (a) Whether, where it is required orously discussed in Morawetz Priv. that all transfers be executed on the Corp § 190 c/ scq, and the rule stated books of the corporation, an assign- in the text is impugned on principle, ment by delivery of the certificate will See Central National Bank r. Willis- be good against an attaching creditor, ton, 136 Mass. 244; Newell r. Willis- seems not settled. The matter is vig- ton, 138 Mass. 240; Application of [*155J 152 TRANSFER OF SHARES. [PART II. 4. In a case in New Jersey,^ it seems to be considered that nothing more is required to make an effectual transfer of stock in a bank, even as against creditors, than an assignment of the certificates and a delivery to the assignee, and that this will be regarded as effectual against an attaching creditor without notice, even where the charter of the company declares the stock personal estate, and provides that " it shall be transferable upon the books of the corporation," and also, " that books of transfer of stock shall be kept, and shall be evidence of the ownership of said stock in all elections and other matters submitted to the decision of the stockholders." 2 Broadway Bank r. IMcElrath, 2 Beasley, 24. It is proper to say that there is considerable difference in the decisions of the different states as to the point of time from which the transfer of equitable titles is to be reckoned, as between purchasers for value and creditors. It is generally considered that the transfer takes effect from the date of notice to the trustee, who holds the legal title subject to all equities, which attach ordinarily only on notice brought home to him. Some of the states regard the equitable rights of the purchaser as dating from the period of the actual purchase, provided notice to the trustee be given within reasonable time after. The question and the cases have been somewhat discussed in Rice v. Courtis, 32 Vt. 4G0; s. c. 1 Redf. Am. Railw. Cas. 111. And see 1 Story Eq. Jur. § 400 b. Murphy, 51 Wis. 519; Skowhegan Beasley, 24; Pinkerton v. Manchester Bank v. Cutler, 49 Me. 315; Sibley v. Railroad Co., 42 N. H. 424; Cheever Quinsigamond National Bank, 133 v. Meyer, 52 X. II. GG; Scripture v. Mass. 515; Scott v. Pequonnock Na- Francestown Soapstone Co., 50 N. H. tional Bank, 15 Fed. Rep. 494. And 571. see Broadway Bauk v. McElrath, 2 [*lo5] §47.] PARTY LIABLE FOR CALLS. 153 ♦CHAPTER IX. ASSESSMENTS OR CALLS. SECTION I. Party liable for Calls. 1. Party whose name appears on the reg- ister liable for calls. 2. Bankrupts remain liable for calls. 3. Cestuis que trust not liable for calls in law or equity. 4. Trustee compelled to pay for shares. 5. Party whose name is registered may show that it is improperly there. § 47. 1. It socms to be settled law that the registered owner of railway shares is liable for all calls thereon, so long as his name remains upon the register.^ The effect of the transfer of railway scrip is only to convey an equitable interest in the shares, with the right to have the shares formally assigned to him, and his name entered upon the register as a shareholder.^ («) * Midland Great Western Railway Co. v. Gordon, .5 Raihv. Cas. 7G; s. c. IG M. & W. 804; Mangles v. Grand Collier Dock Co., 10 Sim. 519; s. c. 2 Railw. Cas. 359; Sayles v. Blane, U Q. B. 205; s. c. G Raihv. Cas. 79; West Cornwall Railway Co. v. Mowatt, 15 Q. B. 521. In this case it was said that even if tlie transaction by which the title to the stock and the registry of defendant's name were made were illegal, it could not avail him in an action for calls. See h\fra, § 23G; Long Island Railroad Co., 19 Wend. 37; Mann v. Currie, 2 Barb. 294; Hartford & New Haven Railroad Co. v. Boorman, 12 Conn. 530; Maun v. Cooke, 20 Conn. 178; Rosevelt v. Brown, 11 N. Y. 148. The registry of shareholders, though irregularly kept, is prima facie evidence of the liability to calls, of those whose names appear upon it. Birmingham Railway Co. v. Locke, 1 Q. B. 250; London (Jrand Junction Railway Co. v. Freeman, 2 M. & G. 600; Same v. Graham, 1 Q. B. 271; Aylesbury Railroad r. Thomson, 2 Railw. Cas. 6G8. This last case holds that the purchaser of sliares is only liable for calls made after his name is on the register. The com- pany may, by its charter, and probably by a by-law, provide that the original subscriber .«;hall be holden for all calls, or until a certain amount is paid in. Vicksburg, Shreveport, & Texas Railroad Co. v. McKeen, 14 La. An. 724. (a) Miller v. Great Republic In- surance Co., 50 Mo. 55; Gilbert's Case, Law Rep. 5 Ch. Ap. 559; Harrison's Ca.se, Law Rep. G Ch. Ap. 28G; Mur- ray V. Bush, Law Rop. II. L. 37. [*15G] 154 ASSESSMENTS OR CALLS. [PART H. 2. In case of bankruptcy, the bankrupt remains liable for all calls unless the names of the assignees are registered on the books of the company, as this is not regarded as a debt payable in future, and which may be proved under the commission .^ * 3. The trustee of shares, Avhose name appears upon the books of the company, is alone liable for calls, and the company have no remedy in equity even for calls against the cestui que trust? But if a shareholder when the company is in extremis makes a colorable transfer to an irresponsible person, it has been held it will not relieve him from liability to contribute.* But in the absence of fraud or mala fides, the cestui que trust cannot be subjected to a call although he may be compelled to indemnify his trustee." And it seems finally to be settled in the English Court of Chancery, that a shareholder may transfer his shares in an abortive company, where such shares pass by delivery, to an insolvent person, for the purpose of getting rid of liability to contribute to its responsibilities, provided the transaction be a real one, and not a false or hollow contrivance.*^ But where the transaction exhibits no motive except escape from the liability of the company, and especially where it transpires after the company is publicly declared insolvent, it was ■■2 South Staffordshire Railway Co. v. Burnside, 2 Eng. L. & Eq. 418; s. c. 5 Exch. 129 •, 6 liailw. Cas. Gu/ * Newry, &c., Railway Co. v. Moss, 4 Eng. L. &Eq. 34; s. c. 14 Beav. 64. But where, in winding up the affairs of a company, the name of a mem- ber who had obtained his certificate after the expenses were incurred, was placed among the contributories, he was held not liable. Chappie's Case, 17 Eng. L. & Eq. 516; s. c. 5 De G. & S. 400. Where shares were pledged at a bank as security for a loan, and the name of the bank, or of the chairman and manager of the bank, was entered on the register of shareholders simply as holders of the shares, which had been represented as fully paid up at the time of pledge, it was held that they were not liable for calls. Guest v. Worces- ter, Bromyard, & Leominster Railway Co., Law Rep. 4 C. P. 9. * Ex parte Lund, 27 Beav. 4G5; Ex parte Ilyatn, 6 Jur. x. s. 181; s. c. 1 De G. F. & J. 75. See also De Pass's Case, 4 De G. & J. 544; Ex parte Chinnock, 1 Johns. Ch. Eng. 714; infra, § 242. * Electric Telegraph Co. v. Bunn, 6 Jur. n. s. 1223. * In re Mexican & South American Co., 2 De G. F. & J. 302; Ex parte Slater, 12 Jur. x. s. 242. All that seems to be required is that the transfer be absolute. Bush's Case, Law Rep. 6 Ch. Ap. 246. And even the fact that the transferor guaranteed the transferee against future calls will not defeat the eifect of the transfer. Harrison's Ca?e, id. 286. Even the most sus- picious circumstances will not defeat the transfer. ^Master's Case, 7 id. 292. [n57] § 47.] PARTY LIAHLK FOR CALLS. 155 Jield it will be regarded as merely colorable and not valid." lUxi where the holder of shares threatened to put the company into in- solvency unless the directors would find some one to purchase his shares and give him an indemnity, which was done twelve months before the company became insolvent, it was held to be a valid transfer.^ Trustees under a will are properly made contributorics.'-' 4. The trustee into whose name the ccxfui que trust had caused shares to be transferred by deed, reciting that the price of the same had been paid to the vendor, who executed the deed, may never- theless be compelled to make good such price to the vendor, if it * were not in fact paid, although lie accepted the transfer in the belief that it had been paid.^*^ 5. Notwithstanding the defendant's name appear upon the register of shares, he will be permitted, in a suit for calls, to show that it was illegally placed there, and without his authority. But a purchaser of shares, or even an original subscriber, cannot be sued for calls, under the English statute, until his name is placed on the registry. ^^ But one's name appearing upon the books of the company as a shareholder is prima facie evidence of the fact, in an action against such person to enforce against him the personal responsibility of a stockholder for the debts of the company.^- (a) And in such an action the judgment against the corj)oration is jjrima facie evidence of its indebtedness as against the stockholder.^^ T In re Electric Telegraph Co., 30 Beav. 143. * Phoenix Life Assurance Co., 7 Law T. n. s. 267. ^ Ex parte Drummond, 2 Gif. 189; s. c. (J Jur. n. s. 908. ^" Wilson V. Keatincf, 27 Beav. 121. " Hodc^es Kailw. 4th ed. 101; Newry & Enniskillen Railway Co. i'. Ed- munds, 2 Exch. 118. 1- Huagland v. Bell, 30 Barb. 57. (n) Tinnbull v. Payson, 9.5 U. S. 421, and cases there cited. "Washer v. Alleusville Turnpike Co., 81 lud. 78. [*158] 156 ASSESSMENTS Oil CALLS. [part n. SECTION II. Colorable Subscriptions. 1. Colorable subscriptions valid. 2. Directors may be compelled to register them. 3. Oral evidence to vary the written sub- scription inadmissible. 4. Register evidence although not made in the time prescribed. 5. Confidential subscriptions void. 6. Shares cannot be issued to secure debts of company. § 48. 1. Equity will not restrain a railway company from en- forcing calls, by action at law, upon the ground that one of the conditions of the charter, requiring a certain amount of subscrip- tions of stock before the incorporation took effect, had not been complied with, but that a fraud upon the provision had been prac- tised by means of colorable subscriptions. The Court of Chancery regards colorable subscriptions, made in the course of getting a bill through the House of Lords (to comply with one of the stand- ing rules of that house, requiring three-fourths of the requisite out- lay to be subscribed before the bill passes), to be binding upon the directors and managers who make the same, and that they are in fact Talid and binding subscriptions, although such subscriptions were made with the purpose of being subsequently cancelled, and * had never been registered upon the books of the company, or any calls made upon them, (a) 2. It is Avithin the proper range of the powers of a court of equity to compel the directors to register such shares, and enforce the payment of calls upon them.^ 1 Preston v. Grand Collier Dock Co., 11 Sim, 327; s. c. 2 Railw. Cas. 335; Mangles v. Same, 10 Sim. 519. The principle of these cases is very distinctly recognized in the case of Blodgett v. Morrill, 20 Vt. 509 ; s. c 1 Redf. Am. Railw. Cas. 138, and it lies at the foundation of all fair dealing, that one is bound by representations on which he has induced others to act, although at the time he did not intend to be bound by them, but expected, through favor, to be relieved from their performance. See also Henry v. Vermillion Railroad Co., 17 Ohio, 187. But if one obtain shares in a distribution by commissioners by fraud, he may be compelled, in equity, to surrender them to (a) Muller v. Hanover Junction Railroad Co., 87 Penn. St. 99; Melvin r. Lamar Insurance Co., 80 111. 446; Pickering v. Templeton, 2 Mo. Ap. [*159] 424. And see Henderson v, Lacon, Law Rep. 5 Eq. 249; Occidental In- surance Co. V. Ganzhorn, 2 Mo. Ap. 205. § 48.] COLORABLE SUBSCRIPTIONS. I.'jT In one casc^ where this subject came under discussion in equity, where the provisional directors, in tlie process of carryin;:^ a l)ill through parliament, proposed to the contractor tliat lie should have the contract for the company's works i)rovided he would accept payment partly in shares, tlie number to be settled by the company's engineer ; but contracted for liim to sign for a suHicient number of shares to make up the amount required by the standing orders of parliament, which was G30 of £10 each, which he accordingly subscribed and the bill passed ; * but when tlie contract was closed he was to take but 300 shares ; the scheme being abandoned before the works were commenced, it was held that the arrangement made by the directors with the contractor was ultra vires, and if not a fraud upon the orders of parliament it was void as against such subscribers as were not privy to it ; and that the circumstance of the contractor having subscribed the deed last but one, and the last subscriber being privy to the arrangement, did not alter the rights of those subscribers who were not privy to it; and that the contractor was liable, as a contributory, for the entire number of shares for which he signed the deed. 3. Oral evidence is inadmissible to vary the terms of a sub- scription to the stock of a railway unless it tend to show fraud or mistake.^ But where the subscriber is really misled, and induced other subscribers, to whom they would have been awarded but for such fraud. Walker i'. Devereaux, 4 Paige, 22'J; s. c. 1 Iledf. Am. Kailw. Cas. 29. A subscription for shares will bind the subscriber, altliough tlie company agree in writing to release the subscriber, the understanding being that the subscription is to be held out to the public as bona fide. The agreement to release is a fraud upon other subscribers, and void. White Mountains Railroad Co. V. Eastman, .34 N. H. 124 ; Dowiiie v. White, 12 Wis. 17G. See also Connec- ticut & Passunipsic Rivers Railroad Co. v. Bailey, 24 Vt. 4(j.3; Mann r. Peiitz, 2 Sandf. Ch. 2.;7; Penobscot & Kennebec Raihoad Co. i'. Dunn, 39 Maine, GOl. 2 North Shields Quay Co. v. Davidson, 4 Kay & J. GS8. « Wight V. Shelby Railroad Co.. IG B. Monr. 5; Blodgett i-. :Morrill. 20 Vt. 509: s. c. 1 Redf. Am. Railw. Cases, ISS; Kennebec & Portland Railroad Co. V. Waters, 34 I\Ie. 309. But mere mistake, or misapprehension of the facts, by the subscriber, is no ground of relief unless it amounts to fraud and imposition, brought about by some agent of the company. Hence where one subscribed for shares under the mistaken belief that he might forfeit his stock at will, and be no further liable, he was held liable, though this belief was the result of assurances then made by the person taking the subscription, that such were the terms of subscription secured by the charter, such assurances being founded in mistake, and not wilfully false. Northeastern Railroad Com- [*1G0] 158 ASSESSMENTS OR CALLS. [PAET II. to subscribe for stock, upon the representation of a state of facts in regard to the time of comjtleting the road, or its location, made by those who take up the subscription, and in good faith and upon proper inquiry and the exercise of reasonable discretion believed by the subscriber, and which constitutes the prevailing motive and consideration for the subscription, and which proves false, it would seem that the contract of subscription should be held void, both in law and equity.* 4. When the statute requires the registry of shares to be made * within a limited time, such requirement is regarded as merely directory, and the registry, although not made within the pre- scribed time, will still be competent evidence, and to the same extent as if made within the time required.^ 5. Subscriptions made under an agreement that they are not to be binding unless a specilied sum is subscribed, are not valid to bind other subscribers, as it is essential that there should be no conditions as to the liability of any of the subscribers not applica- ble to all. (^) Confidential subscriptions in such case made for the purpose of making up the required sum are a fraud upon the other subscribers ; and should not be treated as valid subscrip- tions. Where by deducting such confidential subscriptions the required sum is not subscribed, the contract of subscription does pany v. Rodrigues, 10 Rich. S. C. 27S; Xorth Carolina Railway Co. v. Leach, 4 Jones, N. C. 340. It is here said that one of the commissioners, in taking subscriptions, has no right to give any assurances as to the line of location which will be adopted. And if the location be different from that provided in the charter of the company, the party may lose the right to object to paying his subscriptions on that ground, unless he resort to mandamus or injunction, at the earliest convenient time. Ex parte Booker, 18 Ark. 338; Brownlee v. Ohio, Indiana, & Illinois Railroad Co., 18 Ind. 08. * Henderson v. Railway Co., 17 Tex. 5G0. ^ Wolverhampton New Waterworks Co. v. Hawksford, 7 C. B. n. s. 79-5; 6 Jur. N. s. G32. Affirmed in Exchequer Chamber, 10 W. R. 153; 11 C. B. N. s. 456 ; 8 Jur. n. s. 844. (i) A subscription upon a condi- v. Brush, 43 Conn. 86. An offer to tion precedent is a mere offer, of no subscribe on condition of location of binding force until the condition has the road on a certain line is revocable been performed and the subscription till accepted, and death of the offerer has been accepted. Central Turnpike is a revocation. Wallace r. Townsend, Co. V. Valentine, 10 Pick. 142. And 43 Ohio St. 537. And see Sedalia, see Ticonic Water Power Co. v. Lang, Warsaw, & Southern Railroad Co. v. 63 Me. 480; Ridgefield Railroad Co. Wilkerson, 83 Mo. 235. [*161] § 40.] MODE OF ENFORCING PAYMENT. 159 not become operative, so as to bind the subscribers. Parol evi- dence is admissible to show that certain of the subscriptions were confidential in character, and therefore fraudidcnt.^ G. Where the corporation was indebted for borrowed monev, and issued stock to a third person in trust for the security of the debt, on condition to be retransfcrred to the company upon payment of the debt, it was held the shares were illegally issued." SECTION III. Mode of enforcing Payment. 1. Subscription to indefinite stock raises no implied proinise to pay tiie nmount assessed. 2. If sli.ires are definite, subscription im- plies a promise to pay assessments. Kiglit of forfeiture a cumulative remedy. 3. Whether issuing new stock will bar a suit a},'ainst subscriber, quccre. 4. It would seem not. 5. But the requirements of the charter anil general laws of the state, must be strictly pursued In declaring for- feiture of stock. Notice of sale must name place. Validity of calls not affected by misconduct of directors in other matters. Proceedings must be regular at date. Acquiescence often estops the party. Forfeiture of .shares. Irregular calls must be declared void, before others can be made to supply the place. § 49. 1. The company may resort to all the modes of enforcing payment of calls which are given them by their charter, or the general laws of the state, unless these remedies are given in the alternative. But the principal conflict in the ca.ses seems to arise upon the point of maintaining a distinct action at law for the amount assessed. Many of the early turnpike and manufacturing companies * in tliis coimtry, did not create any definite, or dis- tinct capital stock, to consist of shares of a definite amount, in currency, but only constituted the subscribers a body corporate, leaving them to raise their capital stock in any mode which their by-laws should prescribe. And in some such cases, the charter, or general laws of the state, gave the company power to assess the subscribers according to the number of shares held by each. But the amount of the shares was not limited. The assessments « New York Exchange Co. v. De Wolf, 31 N. Y, 273. But see supra, note 1. "> Brewster v. Hartley, 37 Cal. 15; supra, § 20, pi. 11. [*162] 160 ASSESSMENTS OR CALLS. [PART IL might be extended indefinitely, according to the necessities of the company. In such cases, where the only remedy given by the deed of subscription, the charter and by-laws, or the general laws of the state, was a forfeiture of the shares, the courts generally held, that the subscriber was not liable to an action in j>&rsonam for the amount of calls.^ And this seems to us altogether rea- sonable and just. *For if a subscription to an indefinite stock created a personal obligation to pay all assessments made by the company upon such stock, it would be equivalent to a personal 1 Franklin Glass Co. v. White, 14 Mass. 286; Andover Turnpike Co.r. Gould, 6 Mass. 40; Same t'. Hay, 7 Mass. 102; New Bedford Turnpike Co. v. Adams, 8 Mass. 138; Bangor House Proprietary v. Hinckley, 3 P\airf. 385, 388; Franklin Glass Co. v. Alexander, 2 N. H. 380. But where there was an express promise to pay assessments, or facts from which such an under- taking was inferable, it was always held, even in this class of cases, that an action will lie. Taunton & South Boston Turnpike Co. v. Whiting, 10 Mass. 327; Bangor Bridge Co. v. McMahon, 1 Fairf. 478. But a subscriber to the stock of a turnpike company, who promised to pay assessments, when afterwards the course of the road was altered by law, was held thereby ex- onerated. Middlesex Turnpike Co. v. Swan, 10 Mass. 884. These proposi- tions have never been questioned. Worcester Turnpike v. Willard, 5 Mass. 80. To the same effect are Chester Glass Co. v. Dewey, IC Mass. 94; New- buryport Bridge Co. v. Story, 6 Pick. 45; Salem Mill-Dam Co. v. Ropes, 6 Pick. 23; Ripley v. Sampson, 10 Pick. 371; Cutler v. ^Liddlesex Factory Co., 14 Pick. 483. This general question of the responsibility assumed by those who consent to become shareholders in a corporation, where the shares are not fully paid up, is discussed by Allen, J., in Seymour v. Sturgess, 26 N. Y. 134, where, the facts being peculiar, it was held that the shareholder incurred no obligation to pay the balance due on the shares if he elected to abandon them. But there is no implication of duty to pay the amount of a subscrip- tion where the terms of subscription declare payment to be made in such instalments as shall be required by the board of directors, unless the declara- tion and proof show that an instalment had been required by the directors. Gebhart v. Junction Railroad Co., 12 Ind. 484; McClasky v. Grand Rapids & Indiana Railroad Co., 16 Ind. 96. Where by the charter of an eleemosynary corporation subscriptions were allowed to be taken, and the subscriber, by se- curing the amount and paying the interest promptly, was entitled to save the payment of the principal, it was held this was matter of indulgence to the subscriber, to which he could only entitle himself by proving his compliance with the conditions on which the indulgence was granted. Denny v. North- western Christian University, 16 Ind. 220. The undertaking of subscribers to a joint-stock will be held several and not joint, without express words. Price V. Grand Rapids & Indiana Railroad Co., 18 Ind. 137. The law by which a corporation exists and acts forms part of the contract of subscription. Hoag- land V. Cincinnati & Fort Wayne Railroad Co., 18 Ind. 452. [*163] § -It).] MODE OP ENFORCING PAYMENT. 1ut where the stock of the company is defined in its char- ter, and is divided into shares of a definite amount in money, a sub- scription for shares is justly regarded as equivalent to a promise to pay calls, as they shall be legally made, to the amount of the shares. This may now be regarded as settled, both in this coun- try and in England, and that the power given the company to forfeit and sell the shares, in cases where the shareholders fail to pay calls, is not an exclusive but a cumulative remedy, unless the charter or general laws of the state provide that no other remedy shall be resorted to by the company .^ (a) 2 Infra, § 50. ' Hartford & Xew Haven Railroad Co. v. Kennedy, 12 Conn. 499. In this case it was held, that, from the relation of stockholder and company thus created, a promise was implied to pay instalments; that the clause authorizing a sale of the stock was merely cumulative; and that, whether the company resorted to it or not, the personal remedy against the stockholder remained the same. The same points are confirmed by the same court, in Mann i*. Cooke, 20 Conn. ITS. And in Danbury Railroad Co. v. Wilson, 22 Conn. 435, the defendant was held liable for calls on a subscription to the stock of a company whose charter had expired, and been revived by the active agency of defendant. See also Dayton v. Borst, 31 N. Y. 435; Piscataqua Ferry Co. v. Jones, 39 N. H. 401. Nearly all the cases hold, that where the sub.'^cription is of such a character as to give a personal remedy against the subscriber, in the absence of other specific redress, the mere fact that the company has the power to forfeit the shares for non-payment of calls, will not defeat the right to enforce the pay- ment of calls by action. Goshen Turnpike Co. c. Hurtin, 9 Johns. 217; Dutchess Cotton Manufacturing Co. v. Davis, 14 Johns. 238; Troy Turnjiike Co. r. McChesney, 21 Wend 29(5; Northern Railroad Co. r. Miller, 10 Haib. 260; Plank-lload Co. ;;. Payne, 17 Parb. 507. In this last case it was held to be matter of intention and construction, whether the remedies were concurrciit and cumulative, or in the alternative. And in Troy & Boston Railroad Co. I'. Tibbits, 18 Barb. 297, it is said to be well settled, that the obligation of actual payment is created by a subscription to a capital stock, unless plainly excluded by the terms of the subscription, and that the forfeiture is a cumu- lative remedy. Ogdensburg, Rome, & Clayton Railroad Co. r. Frost, 21 Barb. (a) Boston, Bane, & Gardner Rail- Co., 31 Md. 317; Milton v. Clayton, road Co. v. Wellington, 113 Mass. 79; 54 Iowa, 425. Hughes V. Antietam Manufacturing VOL. I.- 11. [*163J 162 ASSESSMENTS OR CALLS. [PART II. * 3. The question in the English cases seems to be whether, after the forfeiture of the shares, and a confirmation of the same * by 541. See also Herkimer Manufacturing & Hydraulic Co. v. Small, 21 Wend. 273; s. c. 2 Hill, 127; Sagory v. Dubois, 3 Sandf. Ch. 4GG; ISIann v. Currie, 2 Barb. 294; Mann v. Pentz, 2 Sandf. Ch. 257; Ward v. Griswoldville Manu- facturing Co., 16 Conn. 593; Lexington & West Cambridge Railroad Co. v. Cliandler, 13 Met. 311; Klein v. Alton & Sangamon Railroad Co., 13 111. 514; Ryder v. Same, 13 111. 516; Gayle v. Cahawba Railroad Co., 8 Ala. 586; Beene V. Cahawba & Marion Railroad Co., 3 Ala. 660; Spear v. Crawford, 14 Wend. 20; Palmer v. Lawrence, 3 Sandf. 161, where Dueh, J., says the law must now be considered as settled, " that the obligation of actual payment is created in all cases, by a subscription to a capital stock, unless the terms of subscription are such as plainly to exclude it." Elysville v. O'Kisco, 5 Miller, 152; Green- ville & Columbia Railroad v. Smith, 6 Rich. 91; Charlotte & South Carolina Railroad Co. v. Blakely, 3 Strob. 245; Banet v. Alton & Sangamon Railroad Co., 13 111. 504, 514; Hightower r. Thornton, 8 Ga. 486; Freeman v. Win- chester, 10 Sm. & M. Ch. 577; Tar River Navigation Co. v. Neal, 3 Hawks, 520; Gratz v. Redd, 4 B. Monr. 178; Selma & Tennessee Railroad v. Tipton, 5 Ala. 787; Troy & Rutland Railroad Co. v. Kerr, 17 Barb. 581. Where the statute gave an election to the company either to forfeit the shares for non- payment of calls, or to sue and collect the amount of the shareholder, it was held that no notice of such election was necessary to be given before suit brought. Xew Albany & Salem Railroad Co. v. Pickens, 5 Ind. 247. The terms of the charter must be pursued where they provide specifically for the redress for non-payment of calls ; as if the shareholder is made liable only for deficiency after forfeiture and sale of the stock. Grays v. Turnpike Co., 4 Rand. 578; Essex Bridge Co. i'. Tuttle, 2 Vt. 393. But some of the American cases seem to hold, that a corporation has no power to enforce the payment of calls, against a subscriber for stock, unless upon an express promise, or under some express statutory power, and that a subscription for the stock is not equivalent to an express promise to pay calls thereon to the amount of the shares. Kennebec 6 Portland Railroad Co. v. Kendall, 31 Me. 470. But cases of this class are not numerous, and are, we think, unsound. See al.so Allen v. Montgomery Railroad Co., 11 Ala. 437. It has been held, that after the forfeiture is de- clared, the company cannot longer hold the- subscriber liable. Small v. Herkimer ^Manufacturing & Hydraulic Co., 2 Comst. 330. So if the com- pany omit to exercise its power of forfeiture, as the successive defaults occur, until all the calls are made, it thereby loses its remedy by sale. Stokes v. Lebanon & Sparta Turnpike Co., 6 Humph. 241. See also Ilarlaem Canal Co. 1-. Seixas, 2 Hall, 504; Delaware Canal Co. v. Sansom, 1 Binn. 70. An option on the part of the commissioners to reject subscriptions for stock, does not make them less binding, unless they are so rejected. Con- necticut & Passumpsic Railroad Co. v. Bailey, 24 Vt. 465. And an agreement made at the time of subscription inconsistent with its terms, and resting in parol merely, cannot be received to defeat the subscription. lb. In a case in Kentuckv this subject is very elaborately discussed by counsel, and to us, [*164, *165J § 49.] MODE OF ENFORCING PAYMENT. 1G3 the company, and the issuing of new stock in lieu of the forfeited shares, the subscriber is still liable for any deficiency. The cases all regard him as liable, under the English statutes, to a personal action, until the confirmation of the forfeiture of his stock.* 4. Jiut in the House of Lords,^ it seems to have * been settled, very justly disposed of by the court. McMillan v. Maysville & Lexington Railroad Co., 15 B. Monr. 218. It was there held, that subscriptions to the stock of a railway company, like other contracts, should receive such con- struction as will carry into effect the probable intention of the parties; that as the stock subscribed is the means by which the road is to be constructed, a subscription for stock, on condition that the road should be so " located and constructed" as to make a certain town " a point," imposes on the subscribers the duty to pay, on the location of the road in that place; and that the construc- tion of the road is not a condition precedent to the right to recover for calls on the stock. See also New Hampshire Central Railroad Co. v. Johnson, 10 Fost. N. II. 390; South Bay Meadow Dam Co. v. Gray, 30 Me. 547; Greenville & Co- lumbia Railroad Co. v. Cathcart, 4 Rich. 80; Danbury & Norwalk Railroad Co. V. Wilson, 22 Conn. 435. An agreement to take and fill .shares in a railway company, is an agreement to pay the assessments legallj^ made. Bangor Bridge Co. V. McMahon, 10 Me. 478; Buckfield Branch Railroad Co. v. Iri.sh, 39 Me. 41; Penobscot & Kennebec Railroad Co. v. Dunn, 39 Me. 587; Penobscot Railroad v. Dummer, 40 Me. 172; White Mountains Railroad Co. f. East- man, 34 N. II. 124. So, too, an agreement to take shares before the act of incorporation is obtained, creates an implied duty to pay calls duly made thereon. Buffalo & New York City Railroad Co. v. Dudley, 14 N. Y. 33G, The general subject is discuissed somewhat at large in this case, and the re- sults arrived at confirm the doctrines laid down in the text. Rensselaer & Washington Plank Road Co. v. Barton, 16 N. Y. 4.57. The same rule is mentioned in Fry v. Lexington & Big Sandy Railroad Co., 2 Met. Ky. 314, where the question of the extent of implied obligation assumed by subscrip- tion to the capital stock of a corporation is very fully and fairly illustrated. * Great Northern Railroad Co. v. Kennedy, 4 Exch. 417. So the allottees of shares in a projected railway company are made liable for a proportionate share of the expense. UpfiU's Case, 1 Sim. n. s. 395; s. c. 1 Eng. L. & Eq. 13; In re Direct Shrewsbury & Leicester Railway Co., 1 Sim. N. s. 2sl ; s. c. 7 Sim. x. s. 28; London & Brighton Railway Co. v. Fairclough, 2 M. & C..C74; Edinburgh, Leith, & Newhaven Railway Co. v. Hebblewhite, M. & W. 707; s. c. 2 Railw. Cas. 237; Birmingham, Bristol, & Thames Junction Railway Co. r. Locke, 1 Q. B. 2.56; s. c. 2 Railw. Cas. 807; Railway Co. v. Graham, 1 Q. B. 271 : Ilud- dersfield Canal Co. v. Buckley, 7 T. R. 30. It has been held, that a shareholder cannot absolve himself from calls by paying the directors a sum of money for his discharge, even though the money be accepted, and the shares transferred. Ex parte Bennett, 18 Beav. 339 ; s. c. 5 Dc G. IM. & G. 281. See al.so § 4, supra. " Inglis V. Great Northern Railroad Co., 1 Macq. Ap. Cas. 1112; s. c. 01 Eng. L. & Eq. 55. See also Peoria & Oqnawka Railroad Co. v. Elting. 17 111. 429; Cross r. Mill Co., 17 111. 54. But where the deed of settlement givea [*Ui«;j 1G4: ASSESSMENTS OR CALLS. [PART 11. upon great consideration, that where the charter or general stat- utes give the right to forfeit the shares, or to collect the amount of the shareholder, and the forfeiture, sale, and cancellation of the shares do not produce the requisite amount, the company may issue new shares for the deficiency, and at the same time maintain an action for it against the former owner. 5. It seems to be well settled, that to entitle the company to sue for calls, the provisions of tlieir charter, and of the general laws of the state, must be strictly pursued. And if the shares have been forfeited and sold without pursuing all tlic requirements pro- vided in sucli case, no action will lie to recover the balance of the subscription.^ And if the shares be sold for the non-payment of several assessments, one of which is illegal, the corporation cannot recover the remainder of the subscription." But where the by- laws of the company prescribe a specific mode of notice to the delinquent, through the mail, of the time and place of sale, this is not to be regarded as exclusive, but other notice which reaches the party in time will be sufficient.^ But in another case ^ the law in regard to proceedings in forfeit- ure * of shares is held very strictly. It is here considered that the right to forfeit the shares at once, or to enforce the payment, if they should think fit, a judgment for the amount due is a bar to any subsequent forfeiture. Giles v. Ilutt, 3 Exch. 18. And where the charter of the com- pany provides that the shares of a delinquent shareholder "shall be liable to forfeiture, and the company may declare the same forfeited and vested in the company," the option in declaring such forfeiture is in the company, and not in the shareholders. Northeastern Railroad Co. v. llodrigues, 10 Rich. S. C. 278. 6 Portland, Saco, & Portsmouth Railroad Co. v. Graham, 11 Met. 1. ■^ Stoneham Branch Railroad Co. v. Gould, 2 Gray, 277. 8 Lexington & West Cambridge Railroad Co. v. Chandler, 13 Met. 311. And where the charter requires certain notice of the instalment becoming due, the publication, and oral evidence of its being repeated the requisite number of times, are prima facie evidence of compliance without producing all the papers. Unthank v. Henry County Turnpike Co., 6 Port. 125. And in a later case, Anderson v. Ohio & Mississippi Railroad Co., 11 Ind. 1G9, where the charter limited the amount of calls to ten per cent per annum, and ten per cent had been paid, a call was held suflicient without specifying the place of payment or the percentage to be paid, only five calls remaining witliin the power of the directors, and the notice fixing the time and place of payment. ^ Lewey's Island Railroad Co. r. Bolton, 48 Me. 451. The rules as to wliat is requisite to constitute a valid subscription to a stock and to justify calls, are much considered in the recent case of Maltby i*. Northwestern Vir- ginia Railroad Co., IG Md. 422. [*167] § 4V>.] MODE OF ENFORCING PAYMENT. iGo notice must he privcri in tho precise time and in the exact form re- quired by statute, and that the sale must in all rcsj)ects corresj»ond precisely with the requirements of the pruvisions of tho hiw. 'riie rule is carried so far here that postinj^ notice in a public place was lield no sullicient compliance with the law requirin;^ jt to be in a " conspicuous " place ; and it was here considered that subscrip- tions to preferred stock could not be reckoned to make up the requisite amount of capital to enable the corporation to go into ojjeration. 6. But notice tliat sliares in a railway corporation will be sold for non-[)aymcnt of assessments on a day fixed, and by an auc- tioneer named, who is and has long been an auctioneer in the place at which the notice bCars date, is insufficient if it do not name the place of sale.^^ 7. The validity of calls cannot be called in question upon the ground that the directors making the same are acting iji the in- terest and for the benefit of a rival company, and have in conse- quence unnecessarily retarded the construction of the company's works.'' But the directors must be duly appointed.'^ 8. And the proceedings in making the calls must have been suljstantially in conformity with the charter and by-laws of the company and the general laws of the state at the time of mak- ing the same. Any subsequent ratification by the directors of an informal call will only give it effect from the date of the ratification.'^ 0. A subscriber who has executed the deed of settlement, ]iur- chased shares and received dividends upon the same, is not at lil)erty to object to their validity upon the ground that the coin- ])any were by the deed of settlement authorized to issue shares for XlOO, and these were issued as half shares at £ijO ; this acquiescence estops him from doing so.'* 10. It seems that unless the constitution of the corporation or the general laws of the state contain a provision justifying a for- '° Lexington & West Canibridcfe. Railroad Co. v. Staples, 5 Gray, 520. " Orr r. (Glasgow, Airdrie, & Moiiklaiids Junction Railway Co., 3 Macq. Ap. Cas. 7!)9; s. c. 6 .Tur. n. s. 877. ^■^ Howbeach Coal Co. v. Teague, 5 II. & N. 151; s. c. Jur. n. s. 275. " Cornwall Great Consolidated Mining Co. v. Bennett, 5 H. & N. 423; s. c. 6 Jur. N. 8. 539; Anglo California Gold Mining Co. v. Lewis, G II. & X. 174; 8. c. 6 Jur. N. 8. 1370. " Hull Flax & Cotton Co. v. Wellesley, G II. & N. 38. [*107] 166 ASSESSMENTS OR CALLS. [part n. feiture * of shares, it is not competent for the majority of the shareholders by prospective resohition to establish a regulation whereby the shares shall be forfeited upon failure to comply with the requirements of such resolution.^^ (a) 11. It is no valid reason for making more calls than are justified by the constitution and laws affecting the question, that some of the calls were not regularly made and were therefore void, and were not paid by the defendant. It should appear that such irregular calls had been declared void, otherwise the directors may have secured most of the money demanded by them.^^ SECTION IV. Creditors may compel Payment of Subscriptions. 1. Mandamus to compel company to col- lect of subscribers. 2-4. Amount due from subscribers, a trust fund for the benefit of creditors. 5. Same, though a state own the stock. 6, 7. Diversion of the funds from credi- tors a violation of contract on tlie part of the company, and a state law authorizing it invalid. 8, 9. General doctrine above stated found in many American cases. 10. Judgment creditors may bring bill in equity. n. Promoters of railways liable as part- ners, for expenses of procuring char- ter. 12. Kailway company may assign calls before due, in security for bona Jide debt. No notice required to per- fect assignment against attachments or judgment liens. § 50. 1. By the present English statute, the creditors of a com- pany may recover their judgment debts against shareholders who have not paid the full amount of their shares, to the extent of the deficiency.^ Before this statute, it was considered that a writ of mandamus would lie, to compel the company to make and enforce calls against delinquents.^ 15 Barton's Case, 4 De G. & J. 46. 16 Welland Railway Co. v. Berrie, 6 H. & N. 416. 1 Statute 8 & 9 Vict. c. IG, §§ .30, 37. 2 Waif. Railw. 277 ; Hodges Railw. 106, n. (w) ; Regina v. Victoria Park Co., 1 Q. B. 288, where the opinion of the court very clearly intimates, that the (a) Perrin v. Granger, 30 Vt. 595; In re Long Island Railroad Co., 19 Wend. 37. [*168] § 50.] CREDITORS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. lliT 2. In this country this (lucstion has arisen, not unfrequently, in * the case of insolvent companies, no such j)rovision existing in most of the states as that of tlie Knglisli statute just referred to. 8. This subject is very extensively examined and considered by tlie national tribunal of last resort, in a case of much importance and delicacy ,3 and the following results arrived at : — 4. On the dissolution of a corporation, its effects are a trust- fund for the payment of its creditors, wlio may follow them into the hands of any one, not a bona ficle creditor, or purchaser with- out notice; and a state law, which dcfjrives creditors of this right and appropriates the property toother uses, impairs the obligation of their contracts and is invalid. 5. The fact that a state is the sole owner of the stock in a banking corporation, does not affect the rights of the creditors. 6. The capital stock of a company is a fund set apart by its charter for the payment of its debts, wliieh amounts to a contract, with those who shall become its creditors, that the fund shall not be withdrawn and appropriated to the use of the owner, or owners, of the capital stock. 7. A law which dei)rives creditors of a corporation of all legal remedy against its property, impairs the obligation of its contracts and is invalid. 8. These propositions, with the exception of the constitutional question, in regard to the impairing of an assumed or imjilied contract with the creditors of the corporation, are all fully sus- tained by numerous decisions of the highest authority in this coimtry. 9. Thus in the case before ^fr. Justice Story, in the Circuit Court ,^ (a) it was held that the capital stock of a corjioration is a trust-fund, for the payment of its debts, and being so, it may, ujjon general principles of equity law, be followed into other hands, so writ of mandamus will lie, to compel the company to enforco the payment of culls, where it appears that judgments against the conii)any remain unsatisfied for want of assets, although in the circumstances of the case it was thought unnecessary to issue the writ. * Curran v. Arkansas, 15 How. 304. * Wood V. Dummer, 3 Mason, 308. (a) See Sanger v. Upton, 91 U. S. Pottsville Raih-oad Co. v. :Malone, 85 60. And see Broughton t'. Pensacola, Penn. St. ;5(j; City Insurance Co. v. 93 U. S. 268 ; Shamokiu Valley & Cotumercial Bauk, GS 111. 348. [♦109] 168 ASSESSMENTS OR CALLS. [PART IL long as it can be traced, unless the holder show a paramount title.*^ And in cases where the capital stock or assets of a corpo- ration have been distributed to the stockholders without provid- ing for the payment of its debts, a court of equity will allow the creditors to sustain a bill against tlie shareholders, to compel con- tribution to the payment of the debts of the company, to the ex- tent of funds obtained by them, whether directly from the com- pany, or * through some substitution of useless securities for those which were good.^ 10. Where a corporation have abandoned all proceedings under their charter, from insolvency, and still owe debts, the subscrip- tions to the capital stock not being all paid, a judgment creditor may proceed, in equity, against the delinquent shareowners, tliere being no longer any mode by which calls upon the stock may be enforced, under the provisions of the charter, or by action at law, in favor of the company.'' s Adair v. Shaw, 1 Sch. & L. 243, 201. See Dayton v. Borst, 31 N. Y. 435. 6 Nathan v. Whitlock, 9 Paige, 152; s. c. 3 Edw. Ch. 215. But it has been held, that the distribution of the capital stock among the shareholders before the debts of the company are paid, leaving no funds for that purpose, will not render the shareholders liable to an action of tort at the suit of the creditors of the company, there being no such privity as will lay the founda- tion of an action at law, even in states where no court of chancery exists. Vose V. Grant, 15 ^lass. 505. In equity the suit may be in the name of the receiver. Nathan ?'. Whitlock, supra. Or in the name of a creditor, suing on behalf of himself and others, standing in the same relation. Mann i'. Pentz, 3 Comst. 415, 422. And all the shareholders, who have not paid their subscriptions, should be made parties to the bill, and compelled to contribute proportionally. lb. The same principle is recognized in numerous other cases. Mumma v. Potomac Co., 8 Pet. 281; Wright v. Petrie, 1 Sm. & ^l. Ch. 282, 319; Nevitt r. Port Gibson Bank, 6 Sm. h M. 513; Ilightower v. Thornton, 8 Ga. 486; Fort Edward & Fort ^Miller Plank Road Co. v. Payne, 17 Barb. 567; Gillet v. Moody, 3 Comst. 479. In the last named case the hank, of which the plaintiff was receiver, had transferred specie funds to defendant, in exchange for his stock in the bank. The transaction was held illegal, and the defendant was com- pelled to refund, for the benefit of the creditors of the bank. And in another case, where the subscriber to a bank, which became insolvent, assigned all his interest in the bank, it was held not to exonerate him from liability to assessments made to pay debts due from the bank, although contracted subse- quent to the assignment. Dayton i*. Borst, 7 Bosw. 115. See also Morgan v. New York & Albany Railroad Co., 10 Paige, 290. ' Henry r. Vermillion & Ashland Railroad Co., 17 Ohio, 187. See also [*l"70] § 50.] CREDITORS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. ICQ 11. It is lifld under the English statutes, in regard to fullv registered companies, which never go into full operation, but liave to be closed under the winding-up acts, that a shareholder, who has paid up the full amount of his shares, is still liable to jiay the necessary calls to defray the expenses of winding up the com- pany, * the subscribers to such joint-stock companies, under the statute, being held liable to the same extent as partners.^ 12. The company may assign, as security for a debt due from them, an existing unpaid call upon shares not yet due, and if the assignment contains a power of sale, that will not invalidate the assignment, since if held void, a court of equity will expunge it, or restrain its exercise, and it cannot have any effect to avoid the assignment until acted upon ; and a shareholder from whom such call is due will be affected with notice of the assignment, if pre- siding at the meeting when it was made, although having no further knowledge in regard to it.^ But it was doubted if any notice were required to perfect an assignment in security of a bona fide debt, against a subsequent judgment or attachment lien. And in a later casc,'° it was decided that no notice is required in such case, and that Watts v. Porter,^^ where the majority of Queen's Bench held such notice indispensable, was no longer law. Miers i;. Zanesville & Maysville Turnpike Co., 11 Ohio, 273; s. c. 13 Ohio, 197. And where the company retains its organization and officers, it may be compelled, by writ of mandamus, to enforce calls against the sliareholders to the extent of their liability, as well as to perform other duties. Commonwealth r. Lancaster, 5 Watts, 152. * In re Sea, Fire, and Life Assurance Society, 3 De G. M. & G. 459; s. c. 23 Eng. L. & Eq. 422. The form of proceeding and the extent of responsi- bility is extensively considered, as to delinquent subscribers to an insolvent corporation, iu Adler v. Milwaukee Patent Brick Co., 13 Wis. 57. • Pickering i-. Ilfracombe Railway Co., Law Rep. 3 C. P. 235. w Robiusou i). Nesbitt, id. 264. " 3 Ellis & B. 743. [nil] 170 ASSESSMENTS OR CALLS. [part IL SECTION V. Conditions precedent to making Calls. \. Conditions prececlent must be per- formed before calls. 2. Collateral, or subsequent conditions otherwise. 3. Definite capital must all be subscribed before calls. 4. Same where defined by the company, as in the charter. 5. Conditional subscriptions not to be reckoned. 6. Legislature cannot repeal conditions precedent. 7. Limit of assessments cannot be ex- ceeded for any ])urpose. 8. Where charter fails to limit stock, cor- poration may. 9. Alteration in charter reducing amount of stock. § 51. 1. Conditions precedent must be complied with, before any binding calls can be made. Any thing, which, by the express provisions of the charter or the general laws of the state, is made a condition to be performed on the part of the company, or its * agents, before and as the foundation of the right to make calls upon the subscriptions to the stock ; or where the thing is re- quired to be done before calls shall be made, and is an important element in the consideration of the agreement to take stock in the company, it should ordinarily be regarded as a condition precedent. 2. But where the matter to be done is rather incidental to the main design, and only affects the enterprise collaterally, it will commonly be regarded as merely directory to the company, or at most as a concurrent or subsequent condition, to be enforced by independent proceedings, and in the performance of which time is not indispensable.^ 1 Carlisle v. Cahawba & Marion Railway Co., 4 Ala. 70; supra, § 18; Banet V. Alton & Sangamon Railway Co., I'd 111. 504; Utica & IScheuectady Railway Co. V. Brinkerhoff, 21 Wend. 139. This last case is an action on a special undertaking to pay land damages, on condition that the company would locate its road so as to terminate at a particular place, which the company alleged they had done, and defendant was held not liable, for want of mutuality, the company not being bound by the contract. But it admits of some question whether the case of Utica & Schenectady Railway Co. v. Brinkerhoff, supra, comes fairly within the principle on which it was decided. The case of Cooke V. Oxley 3 T. R. 653, which was relied on and which has been sometimes questioned, is an obvious case of want of consideration on the part of defend- [*172J § 51.] CONDITIONS PRECEDENT TO MAKING CALLS. 171 * And where the company voted to issue six hundred additional shares and to allow each stockholder to take one new sliare for ant, it being a mere naked refusal of goods, for a fixed time, tlie plaiiitifi" in the mean time having an election to take them or not. Cases of this class are numerous and sound, resting on the mere want of consideration. Burnet V. Bisco, 4 Johns. 235. But where such an option is given upon consideration, or as a standing offer, and in the mean time the other party proceeds to perforin on his part, the contract becomes binding. And it was so held, in the case of the Cumberland Valley Railway Co. «. Baab, 9 Watts, 458. In this case the inhabitants of a portion of Ilarrisburg made a subscription to induce the com- pany to cross the river at a particular point, and build its depot on a par- ticular street, which being done, the subscribers were held liable to pay their subscriptions, and on the most obvious and satisfactory grounds. In Henderson & Nashville Railroad Co. v. Leavell, 16 B. Monr. 358, it was held, that a subscription conditioned that the road should pass through a cer- tain town and the money subscribed be expended in a certain county, was a valid subscription. If a subscription for stock be conditioned, that the sub- scriber may withdraw his subscription, at his election, if the whole stock be not taken, at a given time, and he pay part of his subscription after that date, he is liable for the balance, unless he shows the failure of the condition, and his own election in a reasonable time thereafter to withdraw. Wilmington & Raleigh Railway Co. v. Robeson, 5 Ire. 391. On a subscription on condition that the road should " pass " on a certain route through a certain county, it is not a condition precedent to the right to demand payment, that the road should be actually constructed on that line; it is sufficient if the road be per- manently located there. North Missouri Railroad Co. v. Winkler, 29 Mo. 318; Ashtabula & New Lisbon Railroad Co. v. Smith, 15 Ohio St. 328. See also Vicksburg, Shreveport, & Texas Railroad Co. v. McKean, 12 La. An. 638. In Chamberlain v. Painesville & Hudson Railroad Co., 15 Ohio St. 225, where a subscription was made for a given number of shares of stock, payable at such times and in such instalments as the directors might prescribe, pro- vided the road was "permanently located" on a given route, and a freight house and depot built at a point named, it was held that on the permanent location of the road in accordance with the terms proposed, the subscription became absolute; that the provision in relation to the erection of the buildings should be regarded as a stipulation merely, and not a condition precedent ; tlie giving by a subscriber of his note for the balance of his subscription, and taking therefor a receipt, stipulating, that when paid, the amount of the note should be applied on his stock, was prima facie a waiver of conditions precedent. But this last is denied in a later case, Parker v. Thomas, 19 Ind. 213. Where a subscription was on the express condition that the company "should locate and construct" its road along a certain route, and the sub- scriber paid one instalment and part of the second, but delayed the payment of the residue until the company suspended operations, after which payment was refused on the ground that though the road had been located, it had not h^iQii constructed according to the condition in the subscription; it was held [*1T3] 172 ASSESSMENTS OR CALLS. [PAUT IL * every two hold by him, if lie subscribed for the same, paid a cer- tain sum and gave his note for the balance, before a day named ; that, the promise of subscription bein'^ precedent to tiiat of construction, the subscriber could not insist on performance by the company, while he refused performance on his part, and that the road having been located as stipulated, and completed so far as the means of the company would allow, there was a compliance with the condition, and that the condition was not a condition precedent, and required only that the road when located and constructed should occupy the route designated. Miller v. Pittsburg & Connellsville Rail- road Co., 40 Penn. St. 237. Where the charter required subscriptions by responsible persons of a certain proportion of the estimated cost of the work before entering upon the con- struction, it was held unnecessary for the company to show compliance with this requirement in order to enforce calls. Nor does the right to make calls depend on the extent or nature of the indebtedness of the company; nor can a subscriber defend against calls by showing that some of the subscriptions neces- sary to make up the amount requisite to bind the defendant were made by persons of no actual or reputed pecuniary responsibility, unless he also shows that they were not made or taken in good faith. Penobscot Railroad Co. v. White, 41 Me. 512. And see Penobscot Railroad Co. i'. Dummer, 40 Me. 172. And the bad faith cannot be shown by the declarations of the subscribers made long after making such subscriptions. lb. Where the charter of a cor- poration requires that a certain number of shares shall be subscribed before the organization of the conipany, the decision of the majority of the sub- scribers that the condition has been complied with, and the actual organiza- tion of the company in pursuance of the decision, are binding on the minority. lb. But this will not preclude the minority from defending on the ground that the proceedings of the majority were in bad faith. See also Taggart v. West Maryland Railroad Co., 24 Md. 563. And where the subscriber gives the company his note for the sum required to be paid at the time of subscrip- tion, and subsequently pays the same, his subscription is binding, and makes him a member of the company, and he cannot escape the responsibility of his position on account of any previous irregulai'ity. Ogdensburg Railroad Co. v. W^olley, 38 N. Y. 118. Sub.scribers cannot defend against calls, on the ground that subscriptions were taken for two sections of the road without distinguish- ing how much was to be applied on each; nor on the ground that the con- struction of the road was begun before a certain per cent of each subscription was paid, according to the requirements of the charter; or that by a subse- quent statute the amount of capital stock required to build the road had been reduced below the requirements of the charter; or that interest had been paid on subscriptions according to the recommendation of the terms of subscription; or that the charter of the company had been amended by extending the time for completing the road. Agricultural Branch Railroad Co. v. Winchester, 13 Allen, 29. See also Andrews v. Ohio & Mississippi Railroad Co., 14 Ind. 16Q; Eakrighfc V. Logansport & Northern Indiana Railroad Co., 13 Ind. 404, where the ques- [*174] § 51.] CONDITIONS PRECEDENT TO MAKING CALLS, 173 * it was held tlicrc was no implied condition that the whole six hundred shares should be issued, and the failure to do so was no * osed effect, the subscrii)tions could not be avoided on that ground. Elli- son V. iNIobile & Ohio Railroad Co., 30 IMiss. 572; Walker v. Same, 3i Mi.ss. 21.'). See also Piscataqua Ferry Co. v. Jones, 39 N. 11. 491. The verbal promise of the agent who takes subscriptions, that the time of payment shall be delayed beyond the time named in the charter, is not bind- ing on the company. Tliigpen v. Mississippi Central Railroad Co., 32 Miss. 317. There is a case in Vermont (Connecticut & Passumpsic Rivers Railroad Co. r. Baxter, 32 Vt. SO.j), where the court seem to hold, that where the subscrijv tion defined the route of the proposed railway, the representations of the agent who carried about the paper, that the written words really defined one partic- ular route, and not another, the subscribers themselves being equally conusant of the facts with the agent, was binding on the company, and would preclude recovery of calls, if the road were not located on the route indicated by the agent, although in fact so located as to comply with the conditions of the written subscription, and although the agent acted in good faith. The case is not one of such importance as to require much discussion, but it may be ob- served that the decision seems to adopt the oral representations of the agent as part of the written contract of subscri[)tion, whereas the subscriber was bound by the legal construction of the writing. A similar question arose and was more reasonably determined in McAllister v. Indianapolis & Cincinnati Rail- road Co., 15 Ind. 11. The subscription there was unconditional, and the sub- ."soriber took his certificate, and afterwards kept it without offering to surrender it. But at the time of the subscription the company promised that a branch should be constructed to a certain place where the subscriber resided. It was held that the parol promise to construct the branch could not be proved as part of the written contract of subscription, and hence that the money paid could not be recovered on the ground of a breach of contract, and that in the circumstances recovery could not be had on the ground of fraud. "^ Nutter V. Lexington & West Cambridge Railroad Co.. 6 Gray. 85. [*lTo, *.17G] 174 ASSESSMENTS OR CALLS. [PART IL 3. It is an essential condition to making calls, in those com- panies wlierc the number of shares and the amount of capital is fixed, that the whole stock shall be subscribed before any calls can lawfully be made.^ (a) And if calls are made before the requisite stock is subscribed, although the subscription is completed before action brought, no recovery can be had.* But it has been held, that the general provision in the charter of a railway act, that so soon as <£ 1,500,000 shall have been subscribed, it shall be lawful for the company to put in force all the powers of the act author- izing the construction of the railway, and of the acts therein recited, being the general railway acts, did not require such sub- scription to be made before making calls, but only before exercis- ing compulsory powers of taking land.^ * 4. And where the charter provides that the members might divide the capital stock into as many shares as they might think 2 Stoneham Branch Railroad Co. v. Gould, 2 Gray, 277; Salem Mill-Dam Co. V. Ropes, 6 Pick. 23; s. c. 9 Pick. 187; s. c. 1 Redf. Am. Railw. Cas. 89; Cabot & West Springfield Bridge Co. v. Chapin, 6 Cush. 50; AVorcester & Nashua Railroiid Co. v. Hinds, 8 Cush. 110; Lexington & West Cambridge Railroad Co. v. Chandler, 13 Met. oil; New Hampshire Central Railroad Co. V. Johnson, 10 Fost. N. H. 390; Penobscot Railroad Co. v. Dummer, 40 Me. 172. But a subscriber for shares in a railway company is liable for calls, although by a subsequent amendment of the charter of the company the capital stock is raised to a sum which has not been subscribed, there being no such condi- tion, either in the charter of the company or the terms of subscription, at the time of subscribing. York & Cumberland Railroad Co. v. Pratt, 40 Me. 447. The records of the company are evidence that subscriptions to the requisite amount have been made. lb. Same v. White. 20 Law Rep. 689; s. c 41 Me. 512; Peake v. Wabash Railroad Co., 18 111. 88. * Norwich & Lowestoft Navigation Co. v. Theobald, 1 Moody & M. 151; Stratford & Moreton Railway Co. v. Stratton, 2 B. & Ad. 518. And see Atlan- tic Cotton Mills V. Abbott, 9 Cush. 423, where a condition in a subscription for stock, that the capital stock of the company should not be less than a certain sum, was held a condition precedent to making calls. * Waterford, Wexford, Wicklow, & Dublin Railway Co. v. Dalbiac, 6 Railw. Cas. 753; s. c. 4 Eng. L. & Eq. 455. But the American cases will not justify such a construction. It would here be held a condition precedent to the right to make calls, or probably even to maintain a corporate existence. (a) Bray v. Farwell, 81 N. Y. GOO; Co. v. Preston, 35 Iowa, 118, and cases Allman v. Havana Railroad Co., 88 there collected. 111. 521. And see Peoria Railroad 1*111] § 51.] CONDITIONS PRECEDENT TO MAKING CALLS. ITo proper, and by a written agreement tlie subscribers fixed the eaj>- ital stock at 850,000, divided into 500 shares of 8100 eaeli, and only one hundi'cd and thirty-eight shares liad been subscribed, it was hehl no assessment for the general purposes of the corporation could be made.^ 5. And where the charter of a railway company requires their stock to consist of not less than a given numljer of shares, assess- ments cannot be made before the required number is taken. And in such case conditional subscriptions are not to be reckoned, even where the condition is acceded to by the company, if the subscriber still repudiates the subscription, on the ground that the condition is not fully performed by the contract drawn up in form. And the plea of the general issue, is no such admission of the existence of the company, as to preclude subscril)ers from contesting the amount of subscriptions, to enable the company to make calls.^ " Littleton ^Manufacturing Co. v. Parker, 14 N. H. 543; Contoocook Valley Railroad Co. v. Barker, 32 N. H. 363. "Where the condition of a bond given for the amount of a railway subscrip- tion was, that the same should be paid when the road was " completed" to a cer- tain village, it was held that the condition was performed when the road wa.s made to the suburbs of the village, in such a manner as to allow daily trains on it, carrying all the freight and passengers that offered, although some por- tion of the work was only temporary. O'Xeal v. King, 3 Jones, 517; Chapman r Mad River & Lake Erie Railroad Co., 6 Ohio St. 119. ' Oldtown & Lincoln Railroad Co. v. Veazie, 39 Me. 571. Any comli- lion the subscriber sees fit to annex to his subscription must be cojnplifd with before the subscriber is liable to assessments. Penobscot & Kenm-bec Rail- road Co. V. Dunn, 39 Me. 587. A condition, that not more than five dollars on a share shall be assessed at one time, is not violated by two or more assessments being made at one time, if only five dollars is required to be paid at one time. lb. Penobscot Railroad Co. V. Dummer, 40 'Me. 172. And whore the charter of the company requires that the capital stock be not less than a certain number of shares, nor more than a certain greater number, and authorizes the directors to assess upon the smaller number, a.s Foon as subscribed, and from time to time to enlarge the capital to the maxi- mum amount named in the charter, all the shares to be equally a.-'se.ssed , it is not necessary for tlie company to define its capital, within the prescribed limits, before making calls. White Mountains Railroad Co. r. Eastman, 34 X. H. 124. It is doubtful if the directors of a railway have power to release subscribers to stock, but at all events, where the release is optional with the subscriber, he must make his election to be released, and in a reasonable time. Penobscot & [•ITTJ 17G ASSESSMENTS OR CALLS. [PART U. * 6. And wlicrc the charter originally required 11,000 sliares to be the minimum, and when less than 10,000 were subscribed the company was organized, and the subscriptions accepted, and assessments made, and afterwards, by an act of the legislature, accepted by the corporation, the minimum was reduced to 8,000 shares, in an action to recover assessments made on defendant's shares, before and after such alteration of the charter, it was held : (1.) that the minimum was a condition precedent, to be fulfilled by the corporation, before the subscribers were liable to assessments ; (2.) that the alteration of the charter would not affect prior subscribers ; (3.) that the defendant would not be estopped from relying upon this condition, by having acted as a shareholder and officer in the corporation, and contributed tow- ards the expenses of the company ; (4.) that corporators, by any acts or declarations, cannot relieve the corporation from its obli- gation to possess the capital stock required by its charter.^ 7. Where the charter of a railway company provided for assessments by the directors of the company upon the shares of the stock, as they might deem expedient and necessary in the execution and progress of the work, provided " that no assess- ment shall be laid upon any share in said corporation of a greater amount than one hundred dollars in the whole, . . . and if a greater amount of money shall be necessary to complete said road it shall be raised by creating new shares," it was held that the charter limited the amount of all the assessments to one hun- dred dollars on a share, and that assessments beyond that sum, made for the purpose of paying the debts of the company, were illegal.^ * 8. Where the charter of a railway company fails to fix the number of shares of the capital stock, it must be presumed to have been the purpose of the legislature that the corporation should limit the number. And this must be done before any valid assessments can be made. In such case, if the number fixed exceed the number subscribed, the company may change the number ; but the assessments must be made upon the whole number, and if an assessment be made before the number ulti- mately fixed is subscribed, it will be irregular and void. A sub- Kennebec Railroad Co. v. Dunn, supra. See also Troy & Greenfield Railroad Co. V. Newton, 8 Gray, 596. « Great Falls & Conway Railroad Co. r. Copp, 33 N. H. 124. [*178, *179J § Oli.] CALLS MAY RE MADK PAYABLK UY INSTALMENTS. 177 Rcribor who has ])aid one assessment is not thereljy preeliult.'d from insisting; upon this irregularity in defence to othei-s.'-* 11. Where the charter of a railway company as originally granted limited the amount of stock at a point which the sub- scription never reached, but by a subsequent alteration of the charter the amount of the capital stock was reduced, and after the subscrij)tions reached that amount the company was duly organ- ized, it was held that the alteration in the charter did not release prior subscribers.^*^ But this seems questionable.^^ SECTION VI. Calls may he made payable by Instalments. § 52. It was at one time considered that calls made payable by instalments were invalid.^ But it seems now to be settled that such mode of making calls, where the directors of the company have an unlimited discretion as to the time and mode of requiring payments of the subscriptions, is unobjectionable.^ But where the subscription contains a provision, that payment shall be made at such times and places as should thereafter be directed by the directors, and shall be applied to the construction of the road, it was held, that the sul)scription did not become payable, until the directors, at a regular meeting, had fixed the time * and jdace of payment.^ But it is further held, in this case, that it is not necessary to give notice to the subscribers of the time and [ilace of payment.^ This point in the decision seems not altogether in accordance with the usual i)ractice in such cases, or the general course of decision in regard to calls, which upon general i)rin- ' Somerset & Kennebec Railroad Co. r. Cushing, 45 Me. 524. 10 Bedford Railroad Co. v. Bowser, 48 Peuu. St. '29. " Supra, § 51, pi. 6, note 8. * Ambergate, Nottingham & Boston & Eastern Junction Railway Co. r. Coulthard, 5 Exch. 458; Stratford & ^loreton Railway Co. v. Stratton, 2 B. & Ad. 518. - London & Northwestern Railway Co. v. McMichael, G Exch. 27:1; Amber- gate, Nottingham, Boston, & Eastern Junction Railway v. Nnrcliffe, 6 Exch. 629; s. c. 4 Eng. L. & Eq. 461 ; Birkenhead, Lancashire, & Cheshire Railway Co. V. Webster, G Exch. 277; s. c. 6 Railw. Cas. 498. * Ross V. Lafayette & Indianapolis Railroad Co., G Ind. 297. VOL. I. — 12 [*180] 178 ASSESSMENTS OR CALLS. [part n. ciplcs must be notified to subscribers before an action can be maintained. But where the subscription is made payable in instahiients of ten per cent every sixty days as the work pro- gresses, it is not important that any formal call or demand be made for the successive payments.* Where the charter gives the corporation power to collect subscriptions to the capital stock by such instalments as the president and directors shall deem proper, they may make con- tracts with subscribers for the payment of subscriptions in any reasonable instalments, as to time and place, and if such con- dition were ultra vires, it would render the whole contract void, and not the condition merely.^ SECTION VII. Party liable for Calls. 1. Subscribers liable to calls. 2, 6. What constitutes subscription to capital stock. 3. How a purchaser of stock becomes liable to the company. 4. One may so conduct as to estop him- self from denying his liability. 5. Kegister of the company evidence of membership. 6. Subscriptions must be made in con- formity to charter. 7. Transferee liable for calls. Sub- scriber also in some cases. 8. Original books of subscription pri- mary evidence. 9. Secondary evidence admissible when original is lost. 10. "What acts will constitute one a share- holder. 11. May take and negotiate or enforce notes for subscriptions. 12. But note fraudulently obtained not enforceable. 13. Subscriptions by one as executor distinct from those in private capacity. § 53. 1. All the original subscribers to the stock in a railway company are usually made liable to calls, by the charter of the company, or by general statute. 2. Some question has arisen in the English courts, as to what is necessary to constitute one a subscriber. In an early case^ * upon this subject, it was held, that the word " subscriber," in the act of parliament constituting the company, applied only to those * Breedlove v. Martinsville & Franklin Railroad Co., 12 Lid. 114; Smith V. Indiana & Illinois Railway Co., 12 Ind. 61. 6 Roberts v. Ohio & Mobile Railroad Co., 32 Miss. 373. 1 Thames Tunnel Co. v. Sheldon, 6 B. & C. 341. [*181] § 53.] PARTY LIAIJLE FOR CALLS. 179 who had stipulated that they would make payment, and not to all those who had advanced money; and that one, who was named in Hie recital of the act as one of the orij^inal proprietors, and who had paid a deposit on cij^ht shares, but who had not sijnicd anv contracts, was not a subscriber within the meaning of the act, and not liable to be sued by the directors fur calls on the remainder of such shares. 3. This is the generally received opinion upon that subject, in this country. In one case,^ a plea to an action to recover calls on stuck subscriljcd, that another j)erson had agreed to take the stock, and that the commissioners had counted this stock to such other person, is insufficient. The signature of the first subscriber should have been erased, and that of the other substituted, or something done to hold the latter liable. A subscriber for stock cannot subrogate another person to his obligation, without a sul> stitution of his name upon the books of the company, or some other equivalent act recognized by the charter and by-laws of the company. 4. But the principal difficulty, in regard to liability for calls, arises, where there have been transfers, and the name of the transferee not entered upon the buuks of the company. For whenever the name of the vendee of shares is transferred to the register of shareholders, the cases all agree that the vendor is exonerated (unless there is some express jjrovision of law by which the liability of the original subscriber still continues), and the vendee becomes liable for future calls.^ And the vendee liaving made such representation to the company as to induce tiiem to enter his name upon the register of shares, is estopped to deny the validity of the transfer.* And even where the party has represented himself to the company as the owner of shares, and sent in scrip certificates, which had been purchased by him, claiming to be registered as a proprietor in respect thereof, and had received from the company receipts therefor, with a notice that they would be exchanged * for sealed certificates on demand, ^ Rydor v. Alton & Sanpanion Railroatl Co., 13 111. .510. ' Sheffield & Ashton-uiulei-Lyne & ISLanchester Railway Co. v. Woodcock, 2 Railw. Cas. 522; s. c. 7 M. & W. 574; London Grand Junction Railway Co. I'. Freeman, 2 Raihv. Cas. 468; s. c. 2 M. & G. 006; wfrn, § 54. * Sheffield, Ashton-under-Lyne & Manchester Railway Co. v. Woodcock, supra ; Loudon Grand Junction Railway Co. r. Freeman, supra. [*182] 180 ASSESSMENTS OR CALLS. [PART 11. he was held estopped to deny his liability for calls, although his name had not been entered upon the register of shareholders, or any memorial of transfer entered, as required by the act.^ And where one has paid calls on shares, or attended meetings of the company, as the proprietor of shares, he is estopped to deny such membership.^ 5. The holders of scrip certificates are properly entered as proprietors of shares before the passing of the act, although they have neither signed the parliamentary contract, nor been original subscribers ; and the register-book of shareholders, which is required by the statute to be kept in a prescribed form by tlie company, though irregularly kept, is prima facie evidence who are proprietors^ 6. The subscription for stock, to be valid, must be made in con- formity with the act. So that where it was required to be made in such form as to bind the subscriber and his heirs, it was deemed requisite to be made under seal.^ But such a provision is of no force in this country, simple contracts being of the same force as against heirs as specialties. 7. If by the act of incorporation the shares are made assigna- ble without restriction, and no express provision exists in regard to the party liable for calls, it would seem to follow, upon the general principles of the law of contract, that the proprietor of the share, for the time being, is liable for calls. And where certain formalities are requisite in the transfer of shares, and these have been complied with on the part of the transferee, or waived by the company at his request, his liability to calls then attaches.^ The liability of the original subscriber often continues, 6 Cheltenham & Great Western Union Railway Co. r. Daniel, 2 Q. B. 281, and Same v. Medina, 2 Railw. Gas. 728. And this being matter of estoppel in pais, may be used in evidence, in answer to the defence, ■without being pleaded. ^ London Grand Junction Railway Co. v. Graham, 2 Railw. Cas. 870; s. c. 1 Q. B. 271. "< Birmingham, Bristol, & Thames Junction Railway Co. r. Locke, 2 Railw. Cas. 807; s. c. 1 Q. B. 2.j6. 8 Cromford & High Peak Railway Co. v. Lacey, 3 Y. & J. SO. See supra, § 18, note 2. ^ Huddersfield Canal Co. v. Buckley, 7 T. R. 36; Aylesbury Railway Co. t". Mount, 5 Scott, New Rep. 127; "West Philadelphia Canal Co. v. Innes, 3 Whart. 198 ; Mann v. Currie, 2 Barb. 294 ; Hall v. United States Insurance Co., 5 Gill, 484; Bend v. Susquehannah Bridge Co., G Har. & J. 128 ; AngeU & Ames Corp., § 534. [*182] § til].] PARTY LIAIJLK FOR CALLS. 181 at the election of the * company, after tliat Qfrainst the vendee attaches, but wlien tlic company consent to accept the name of the transferee, that of the subscriber, or former proprietor, ceases.^'^ 8. It seems to l)e reu^arded as settled law, that the best evi- dence of an ()ri<^inal subs(n"ij»tion to the capital stock of a railway company is the production of the orition. '- Burr V. "Wilcox, G Bosw. 19S. ^^ Goodrich v. lleynolds, 31 111. 400. See also Straus r. Eagle Tii-ur:in.o Co , 5 Ohio St. 59. 1* Tavlor r. Fletcher, lo Lid. SO. 182 ASSESSMENTS OR CALLS. [part IL * 13. Subscriptions in the capacity of executor are to be re- garded as distinct contracts from tliosc in the personal capacity of the subscriber, so tliat the pendency of a suit for one will not abate or render vexatious a subsequent suit for the other.^^ SECTION VIII. Release from liahilitu for Calls. 1, 2. Where the transfer of shares, witli- out registry, will relieve the pro- prietor from calls. 3. Where shares are forfeited, by express condition, subscriber no longer liable for calls. Dues cannot be enforced which accrue upon sliares after they were agreed to be cancelled. § 51. 1. One may relieve himself of his liability for calls, by the transfer of his shares, and the substitution of the name of his assignee for his own upon the books of the company. But until this change upon the books of the company is made, they are at liberty to hold the original subscriber liable, if they so elect.^ But where the act of incorporation of a joint-stock company de- clared the shares should be vested in subscribers, their executors and assigns, with power to the subscribers to assign their shares, and a committee, to be appointed under the act, were authorized to make calls upon the proprietors of shares, it was held, that an original subscriber, who had transferred his shares, was no longer liable to calls.^ 2. But this case is determined upon the express provisions of the charter of the company. The general rule in England, at present, under their consolidated acts, is undoubtedly as stated above. And we see no good reason why it should not equally apply in this country. It would seem to be the only mode of securing the ultimate payment of calls. But some of the cases 15 New York City & Erie Railroad Co. v. Patrick, 30 N. Y. 2.56. 1 Supra, § 47, and cases there cited. In Everhart v. West Chester & Phila- delphia Railroad Co., 28 Penn. St. 339, it is said that a transfer of stock, made for the purpose of exonerating a subscriber, without the consent of the company, is not a valid defence to an action against him for the purchase- money of the shares subscribed. Supra, § 32. 2 Huddersfield Canal Co. v. Buckley, 7 T. R. 86, 42. [*184] § 54.] RELEASE FROM LIAIilMTV I'OU CALLS. 183 seem to assume, that the mere transfer of tlic shares in the market * does exonerate the subscriber from the payment of future calls, liut this depends chiefly upon the provisions of particular charters, and the general laws of the state apjilicablc to the subject.'^ 3. Where shares are allotted to one u])on the express condi- tion to be forfeited if a certain deposit is not ])aid in a cei'tain time, and nothing more is done by tiie allottee, he is not liable for calls, although the company have entered his name upon the register of shares as a shareholder.^ 4. Where the corporation resolve to release subscribers and to cancel their stock upon making certain payments, wliich arc made and the stock cancelled, the comj)any cannot enforce any dues on such shares which subsequently accrue,^ since the for- mer arrangement amounted to an accord and satisfaction of all claim on the i)art of the company. ]>ut if the company thereby matei-ially lessened the remedy of creditors, they might possibly interfere. 8 In West rhiladelphia Canal Co. v. Innes, 3 Whart. 198. it was held, tliat where the proprietor of shares of the plaintiff's stock transferred tliem on the books of the company, after calls were made, but before they fell due, tlie transferee was liable for such calls, although he had iiever received certi- ficates, or given notice of tlie acceptance of the transfer. And it was held to make no difference, that tlie transfer was from an original subscriber, with- out consideration. Mann i'. Pentz, 2 Sandf. Ch. 258; Hartford & New Haven Railroad Co. v. Boorman, 12 Conn. 530; Aylesbury Railroad Co. r. Mount, 5 Scott, New Rep. 127. * Waterford, Wexford, Wicklow, & Dublin Railway Co. v. I'idcock, IS Eng. L. & Eq. 517; s. c. 17 Jur. 2G; s. c. 22 Law T. Rep. x. s. 1 IG; s. c. S Exoh. 279. Where the company accepts a conveyance of .shares to itself it will ex- onerate the owner from calls. But a sale to anotlier company of all the effects of the company will not release the shareholders from calls already made. Plate Glass Insurance Co. v. Sunlcy, 8 Ellis & B. 47. ^ Miller c. Second Jefferson Building Association, 50 Penn. St. 32. And where the company accepts another in tlie place of the original subscriber, the latter is wholly released. Ilaynes c. Palmer, 13 La. An. 210. [*185] 184 ASSESSMENTS OR CALLS. [part n. ^SECTION IX. Defences to actions for Calls. 1. Informality in organization of com- pany insufficient. n. (a). Fraud ns a defence, in general. 2. Slight acquiescence estops the party in some cases. 3. 4. Default in first payment insufficient. 5. Company and subscriber may waive that condition. 6. Contract for stock, to be paid in other stock. 7,8. Infancy. Statute of limitations and bankruptcy. 9. One commissioner can give no valid assurance as to the route. 10. What representations matters of opinion. § 55. 1. It is certainly not competent for a subscriber, when sued for calls, to go, in his defence, into every minute deviation from the express requirements of the charter, in the organization and proceedings of the company, (a) Any member of the associa- tion, who intends to hold the company to the observance of those matters which are merely formal, should be watchful, and inter- pose an effectual barrier to their further progress, at the earliest (a) The contract of the subscriber, like contracts in general, is voidable for fraud. Vreeland v. New Jersey Stone Co., 29 N. J. Eq. 190; City Bank v. Bartlett, 71 Ga. 797 ; Central Railway Co. v. Rich, Law Rep. 2 H. L. 99; Montgomery Southern Railroad Co. V. Matthews, 77 Ala. 307. And see 14 Am. Law Rev. 177, for an essay on this general subject. A false rep- resentation, to be ground of avoid- ance, must not be as to matters of law, which every one is supposed to know. Upton V. Trebilcock, 91 U. S. 45. Nor, for the same reason, as to the contents of the charter or as to the legal effect of the subscription. New Albany Railroad Co. r. Fields, 10 Tnd. 187; Ellison v. Mobile & Ohio Rail- road Co., 3(3 Miss. 072; Selma Railroad C6. V. Anderson, 51 Miss. 829. A false representation, however, as to the con- tents of the subscription paper, e. g. to a subscriber who cannot read, may [*186] be ground for avoidance. Wert v. Crawfordsville Turnpike Co., 19 Ind. 242. But representations must be of matters of fact, not matters of mere opinion. Union National Bank v. Hunt, 76 Mo. 439. Nor may they amount to promises. If promises, they should be incorporated with the contract, and cannot be received in evidence, under the settled rule, to vai-y the written instrument. Tliis applies to representations that the road shall be built on a certain route, or within a specified time. Choteau Insurance Co. v. Floj'd, 74 Mo. 286. And so, the general drift of the cases, thougli there are some cases the other way. Of course the representations must have misled, must have been material, and must have been within the scope of the powers of the agent who made them. This is elementary in the law of fraud. § ')').] DEFENCES TO ACTIONS FOR CALLS. 185 upportunity, by mandamus, or injunction out of chancery, or other api)ropriate mode.^ In cases of this kind often, where vast expense has been incurred and important interests are at stake, courts will incline to conclude a member of the association, bv the briefest acquiescence in any such immaterial irre^ndaritv, and often, in regard to those, which, if urged in season, might have been regarded as of more serious moment. In one case,^ Tindal, C. J., says, in regard to the offer of a i)lea, that tlie money sued for, being the amount of a call, was intended for other purjioses than those warranted by the act, " It seems to me it was never intended, nor ought it to be allowed, that so general a (juestion as that should be litigated, in the question, whether a call is due from an individual subscriber. " And it was held no sufllcient ground of enjoining the directors from making calls, that the proceedings had been such as to amount to an abandonment of the enterprise, as it was possible that there were still legal obligations * to answer.^ And where the directors were author- ized to limit the number of shares, but could not proceed with the road until two hundred and fifty shares were subscribed, and after that number wei'C taken they resolved to close the books, it was held that this vote was equivalent to a vote fixing the immber of shares, and that the company might therefore proceed to make and enforce calls, under the statute, and to collect the deficiency remaining, after the sale of forfeited stock."^ 2. But where the statute prescribes the terms on which shares may be sold, it must be strictly followed or the sale will be void, as where the prescribed notice is not given.* And it would seem, J London & Riighton Railway Co. r. Wilson, 6 Ring. X. C 135 Tliis case decides, that a plea that the company has made deviations in the line, and that the money sued for is needed only for such deviations, cannot bo entertained or regarded as a proper inquiry in an action for calls on shares; and so also of a plea, that fewer shares have been allotted than the act requires. Waif. Railw. 279; Wight t-. Shelby Railroad Co., 16 B. Monr. b. Xor can a .shareholder defend against a suit to enforce his personal liability for the debts of the corix)ration, on the ground of defects in tlie organi- zation of the company; especially where he ha.s acted as a menibor, and his name so appeared, when the debt was contracted. Eaton v. Aspiuwall, 19 N. Y 119. ' Logan I'. Courtown, 5 Eng. L. & Eij. 171. « Lexington & West Cambridge Railroad Co. v. Chandler, 13 >ret. 311. * Portland, Saco. & Portsmouth Railroad Co. v. Graham, 11 .Met. 1. [*18T] 18G ASSESSMENTS OR CALLS. [PART IL that the courts are reluctant to admit defences to actions for calls, upon the ground of informality in the proceedings of the company, or even of alleged fraud, where there has been any considerable acquiescence on the part of the shareholder.^ 3. It seems to have been held, in seme cases, that a subscriber for stock may defend against an action for calls, upon the ground that he did not pay the amount required by the charter to be paid down at the time of subscription.^ 4. But it is questionable how far one can be allowed to plead his own non-performance of a condition in discharge of his under- taking. And a different view seems to have obtained to some ex- tent.'' It has been held the stockholder cannot object that he has not complied with the charter, after having voted at the election of officers, or otherwise acted as a shareholder.^ And so also where * the subscription is made, while defendant held the books of the 6 Waif. Kailw. 278, 279; Cromford & High Peak Railway Co. r. Lacey, 3 Y. & J. 80; Mangles v. Grand Collier Dock Co., 10 Sim. 519; s. c. 2 Raiiw. Cas. 359; Thorpe c. Hughes, 3 Myl. & C. 742. ^ Higliland Turnpike Co. v. ^McKean, 11 Johns. 98; Jenkins v. Union Turnpike Co., 1 Caines Cas. 86; Hibernia Turnpike Co. v. Henderson, 8 S. & R. 219 ; Charlotte & South Carolina Railroad Co. v. Blakely, 3 Strob. Law, 245. ' Henry v. Vermillion & Ashland Railroad Co., 17 Ohio, 187. A similar rule is recognized in Louisiana, in the case of Yicksburg, Shreveport, & Texas Railroad Co. v. ^NIcKean, 12 La. An. 638. 8 Clark V. Monongahela Navigation Co., 10 Watts, 364. Nor can a sub- scriber, after having transfei-red his stock to another, thus treating it as a valid security, object, in the trial of a suit against him on the original subscription, that the same was originally invalid, by reason of the non- payment of the sums requisite to give it validity, at the time of making the subscription. Everhart v. West Chester & Philadelphia Railroad Co., 28 Penn. St. 339. Where commissioners were appointed by the legislature, and authorized to receive subscriptions for a railway, no subscription to be valid unless a certain sum was paid on each share at the time of subscribing, letters-patent to be issued by the governor on subscription of a certain number of shares certified to by the commissioners, it was held that the act imposed no restriction on the corporation after it was organized, relative to payment at the time of subscription; that the condition, that subscriptions should not be valid till a certain amount was subscribed, was one which the parties had a right to annex to the contract, and so valid; and that the subscriptions could not be enforced till the condition was performed. Philadelphia & West Chester Railroad Co. v. Hickman, 28 Penn. St. 318. See also Black River & Utica Railroad Co. v. Clarke, 25 N. Y. 208; Haywood & Pittsborough Plank Road Co. V. Brvan. 6 Jones, N. C. 82; Piscataqua Ferry Co. v. Jones, 39 N. H. 491. [*i87] § 55.] DEFENCES TO ACTIONS VOW CALLS. 187 company and acted as commis.siunur/'* And payment before the books are closed has been held suflicient to bind the subscriber.*'' So also if the sum have been collected by suit.'* And a prom- issory note has been held good payment, where the cliarter re- quired cash on the first instalment, at the time of subscription. '- And, by ])arity of reason, if the subscription binds the subscriber to pay for the stock taken, in conformity to the re(iuisitlons of the charter, Avliich is the more generally received notion upon the sub- ject at present, we do not well comprehend why the subscri|)tion itself may not be regarded as effectual to create the subscriber a stockholder, and as much a compliance with the condition to pay as giving a promissory note. In either case, the company obtain but a right of action for the money, and if the |)arty can be allowed to urge his own default in defence, it is perhaps no com- ])liance with the charter. But upon the ground that, so far as the subscriber is concerned, the company may waive this condition, upon what is etiuivalcnt to payment, it ought also to be equally held, that when * the suljscriber has obtained such a waiver, for his own ease, he shall be estopped to deny that it was so far a comjtliance with the charter as to render the contract binding. 5. And, upon the other hand, the comj)any having consented to accept the subscriber's promise, instead of money, for the first instalment, cannot defeat his right to be regarded as a stock- holder, on account of his not complying with a condition which they have expressly waived. It would seem, that under these circumstances, the immediate parties to the contract could not obtain any advantage over each other, by reason of the waiver of strict performance of such condition, by mutual consent. Ihit the objection must come properly from some other (piarter, eitlicr the ])ublic, or the other shareholders. And possibly the cases decided upon this subject do not justify any such relaxation, even between the parties to the immediate contract of subscrijttion. » Highland Turnpike Co. i-. McKean, 11 Johns. 98; Grayblo v. York & Gettysburg Turnpike Co., 10 S. & R. 209. So also if one act a.s a stockholder in the organization of the company. Greenville & Columbia Railroad Co. v. Woodsides, 5 Rich. 1-15. 10 Klein v. Alton & Sangamon Railroad Co., 1.3 111. .")U. " Hall V. Selma ^ Tennessee Railroad Co.. G Ala. 741. 1- McRae v. Russell, 1'2 Ire. 221 ; Selma & Tennessee Railroad Co. r. Tipton, 5 Ala. 787; Tracy i'. Yates, 18 Barb. 152; Greenville & Columbia Railroad Co. I". Woodsides, 5 Rich. 145; Mitchell v. Rome Railroad Co.. 17 Ga. .574. [*188, *180J 188 ASSESSMENTS OR CALLS. [PAIIT IL Upon general principles applicable to the subject, as educed from the law of contracts, we see no objection to the waiver of such a condition on behalf of tlie company. And if there be any objection upon other grounds, it is not for the benefit of the subscriber.^^ 18 It has been held that the misstatement of tlie length of the road, in the articles of association, if there be no fraud; or the lease, or sale, of the fran- chises of the corporation to another company, which is void ; or the neglect to make the whole road, even without legislative sanction, will not exonerate a subscriber from paying calls. Troy & Rutland Railroad Co. v. Kerr, 17 Barb. 581. Jiut where a preliminary subscription is required, it must be absolute and not dependent upon conditions. Troy & Boston Railroad Co. v. Tibbits, 18 Barb. 297. But a condition that provides for interest, by way of dividends, to paying subscribers, until the full completion of the road, at the expense of subscribers who do not pay, or one that imposes a limitation on the directors in calling in stock, is void as against good policy. lb. In Wight?'. Shelby Railroad Co., 16 B. Monr. 5, it was held, that a sub- scription to stock was not rendered invalid by the subscriber's failure to pay a small sum required by the charter to be paid on each shai'e when he subscribed. It was said that it was the duty of subscribers to pay at the time the stock was subscribed, but that they should not be allowed to "take advantage of their own wrong, and release themselves from their whole obligation, by a failure to perform part of it." This seems sound and consistent with the general prin- ciples of the law of contract. Where one subscribed for stock on the understanding that the first ten per cent, required by law to be paid in cash on subscribing, should be paid by services in securing subscriptions and right of way, and subsequently presented an account against the company for services, in which it appeared that at the date of subscription the company owed him more than the ten per cent for services, and the account was settled, it was held that the statute was sufficiently complied with. Beach v. Smith, 30 N. Y. IIG. See also Vicksburg, Shreve- port, & Texas Railroad v. McKean, 12 La. An. G38. It was further held to be no valid defence to a subscription to the stock of a railway, that it was delivered as an escrow to one of the commissioners appointed to receive subscriptions, as it should have been delivered to a third person, to become effectual as an escrow. It has been held, that the commissioners may not accept the check of a subscriber in payment of the amount required by the charter to be paid at the time of subscription, but that specie, or its equivalent, must be demanded. Crocker v. Crane, 21 Wend. 211; s. c. 2 Am. Railw. Cas. 484; s. c. 1 Redf. Am. Railw. Cas. 42. But this is at variance with the general course of de- cision, unless in regard to banks, where the charter expressly requires the payment to be in specie. King v. Elliott, 5 Sm. & M. 428. A charter of a railway company was made to depend on the expenditure of a certain sum in two years, and completion of the road in four years from the date of the grant. The company failed in the first part of the condition, but obtained subscriptions to a large amount, and the defendant was one of [*189J § 55.] DEFENCES TO ACTIONS FOU CALLS. 189 *G. An agreement to take stock and pay in the stock of a canal company, and an offer of the canal stock, will not make the party liable to pay money.^* * 7. Infancy is a good defence, if the person be an infant at the time of suit brought, or if he repudiate the subscrij)tion within a reasonable time after coming of full age.^'^ By the general pro- visions of the English statute, all persons may become share- holders, there being no exception, in tci'ms, in favor of infants ; and if one be registered while an infant, and suffer his name to ivniain on the registry after he becomes of full age, he is liable for calls, whether made while he was an infant, or afterwards.'^'' the subscribers. The company organized and chose directors, the defendant being one of them. The legislature revived and renewed the charter, and extended the time for the performance of such condition; and subsequently a meeting of the stockholders was called by the commissioners, in which the de- fendant took part. Additional directors were appointed, and at a meeting of the directors, the defendant being present, a call was made on the subscriber. It was held that this was a virtual acceptance of the renewal of the charter, and a recognition of the former organization of the company, amounting to a sufficient organization under the new charter; and that the defendant was estopped to deny the regularity of these proceedings. Danbury & Norwalk Kailroad Co. v. Wilson, 22 Conn. 4:55. Where the general law, under which a company is organized, requires a payment of ten per cent on each subscription before the tiling of the articles of association witli the secretary of state, it is sufficient, if the cash payments, by whomsoever made, amount in the aggregate to ten per cent upon 81,000 for each mile of the road proposed to be constructed. Lake Ontario, &c. Rail- road Co. V. Mason, 10 N. Y. 451. And the subscription to stock before the incorporation of the company is obligatory on the company, although the subscriber make no cash jxiyment whatever, the right of membership thereby acquired being a sufficient consideration for the subscription. lb. Supra, § 51, note 1. " Swatara Railroad Co. v. Brune, Gill, 41. '" Northwestern Railway Co. v. McMichael, 5 Exch. 114; Birkenhead Rail- way Co. V. Pilcher, 5 Exch. 121 ; s. c. G Railw. Cas. G22. The party should also di'iiy having derived any advantage from the shares, or offer to restore tiiem. Northwestern Railway Co. r. McMicliael, 5 Exch. 114; Leeds & Thir.sk Rail- way Co. V. Fearnley, 4 Exch. 20; Dublin & Wicklow Railway Co. i-. Black, 10 Eng. L. & Eq. 556; s. c. 8 Exch. 181. See also Deix)sit & General Life Assurance Co. v. Ayscough, 6 Ellis & B. 701. ^•^ Cork & Bandon Railway Co. i-. Cazenove, 10 Q. B. 'X]:). But it would seem that infants are not comprehended, by the general terms of the English statute. Birkenhead, Lanca.shire, & Cheshire Junction Railway Co. v. Pilcher, 5 Exch. 121. It has been said that an infant shareholder, or subscriber, in a railway com- [*190, *101] 190 ASSESSMENTS OR CALLS. [PART II. It seems to be * doubted by the English courts whether the stat- ute of liiuitatioiis as to shiiple contracts applies to an action for calls, that being a liability imposed by statute, and so to be re- garded as a specialty.^^ (J) pany, is in the same situation as in regard to real estate, or any other valuable property, which he may have purchased and received a conveyance of. If on coming of age, he disclaim tlie contract, and restore the thing, with all advan- tages arising from it, his liability is terminated, and he cannot be made lial)le for calls. Parke, B., in Birkenhead & Cheshire Railway Co. v. Pilcher, Railw. Cas. 625. The infant is not regarded as merely assuming an executory under- taking, which is void on the face of it, but as a purchaser of what is presumed to be valuable to him. "Where, therefore, there is nothing but the simple fact of infancy pleaded to an action for calls, it is insufficient. lb. It would seem that the plea should contain aveiments, showing the disadvantageous nature of the contract to the infant, his repudiation of the contract, and restitution of all benefits derived under it, on coming of age, or that he is still an infant, but will be ready to restore such benefits on coming of age. McMichael v. London & Northwestern Railway Co., 5 Exch. 855; s. c. 6 Railw. Cas. 618; Birkenhead, Lancashire, & Cheshire Railway Co. r. Pilcher, 5 Exch. 121 ; s. c. 6 Railw. Cas. 561, 6G2. The mere plea of infancy is an immaterial plea, and issue being joined thereon, and found for defendant, the plaintiff is still entitled to judg- ment non obstante veredicto. lb. The plea must show that the infant avoids the contract of subscription, on his coming of age. Leeds & Thirsk Railway Co. V. Fearnley, 5 Railw. Cas. 611; s. c 4 Exch. 26. And the appearance by attorney is not equivalent to an averment that the defendant is of full age. lb. But a plea which alleges, that the defendant became the holder of shares by reason of his having subscribed for them, and that at the time of his so subscribing, and also at the time of the making of the calls, he was an infant ; and that while he was an infant he repudiated the subscription, and gave notice to the plaintiffs that he held the shares at their disposal ; it is prima facie a bar; and if the defendant, after he came of full age, disaffirmed his repudiation, or if he became liable by enjoyment of the profits, those facts should be replied. Xewry & Enniskillen Railway Co. v. Coombe, 3 Exch. 565; 8. c. 5 Railw. Cas. 633. Where shares were sold to an infant, and duly transferred to him, on the declaration of the vendor tliat he was of full age, and the father of such infant, by a deed reciting that he had purchased on behalf of the son, and covenant- ing that he, on coming of age, would execute tlie deed and pay all calls, and that the father would indemnify the company against all costs by reason of the son being an infant, it was held that the father was a contributory. Reaveley's Case, 1 De G. & S. 550. See also Stikenian v. Dawson, 4 Railw. Cas. 585 ; s. c. 1 De G. & S. 90. " Cork&Bandon Railway Co. c. Goode, 13 C B. 618; s. c. 21 Eng. L. &Eq. 245. (i) The statute, at any rate, does has been made by the company, until not begin to run, where no assessment the court has made a call, or until [*192] § ^5-] DEFENCES TO ACTIONS FOR CALLS. 101 8. Bankruptcy is a good defence for calls made after llic cer- tificate of bankruptcy issues, but to lacet liabilities incurred before.i^ 9. One of the commissioners ap])ointed with live others at a given place to take subscriptions to a railway, has no right in doing so to give any assurance as to the line of location that would be adopted by the company.^^ (c) 10. And where the subscription is made uiion condition of the road going in a particular route, the plaintiff may show that the defendant owned land upon that route. And any representations of the agents taking the subscriptions, as to the ultimate value of the stock, will be regarded as matters of opinion merely upon which the subscriber had no right to rely.^*^ (tZ) »8 Chappie's Case, 17 Eiig. L. & Eq. 516; s. c. 5 De G. & S. 400. ** North Carolina Raihoad Co. v. Leach, 4 Jones, N. C. 340. ^ Vawter t*. Oiiio & Mississippi Railroad Co., 14 bid. 174. some authorized demand has been made. Scovill v. Thayer, 105 U. S. 143. And see generally Glenn v. Dorsheimer, 23 Fed. Rep. 095; Terry V. Cape Fear Bank, 20 Fed. Rep. 417; Glenn v. Soule, 22 Fed. Rep. 417. (r) But where the agent soliciting subscriptions agrees with a subscriber that his subscription shall be delivered only on location of the road in a cer- tain way, delivery otherwise will not bind the subscriber. Saginaw, Tus- cola, & Huron Railroad Co. v. Chap- pell 22 Am. & Eng. Railw. Cas. IG. (r/) Union National Bank v. Hunt, 7G Mo. 439. [*102] 192 ASSESSMENTS Oil CALLS. [part n. ^SECTION X. Fundamental alteration of Charter. 1. Such alteration releases subscribers. 2. Instance of alteration permitting pur- cliase of steamboats. 3. 7. RL-ijoritj' may bind company to al- terations not fundamental. 4. Directors cannot use tlie funds for purposes foreign to the organiza- tion. 5. 9. But legal alterations in the charter, or the location of the road, will not release subscribers. 6. If subscriptions are made on condition of a particular location, however, it must be complied with. 8. 9, Consideration of subscription be- ing location of road, must be sub- stantially performed. 10. Express conditions must be per- formed. 11. How far alterations may be made without releasing subscribers. 12. May be made wiiere such power is reserved in the charter. 13. Personal representative liable to same extent as subscriber. 14. Money subscriptions not released by subsequent ones in land. 15. Corporation cannot make calls in another state even by legislative permission. § 56. 1. There can be no doubt, that subscribers to the stock of a railway company are released from their obligation to pay calls by a fundamental alteration of the charter, (a) This is so undeniable, and so familiar a principle, in the general law of partnership, as not to require confirmation here. We shall briefly advert to the points decided in some of the more promi- nent cases, in regard to incorporated companies. " The general doctrine applicable to the subject is very perspicuously stated by Woodbury, J., in an early case in New Hampshire.^ " Every 1 Union Locks & Canal Co. v. Towne, 1 N. H. 44. But -sNhere the original charter or preliminary contract provides for modificatious, the sub- (a) An attempt by a state legisla- ture at such an alteration is, of course, void under that provision of the fed- eral constitution wliich forbids the impairment of the obligation of con- tracts. Nor have a majority of the stockholders any implied authority to accept such an alteration. Bat if they attempt to act under the amended charter, and so indicate an intention to rescind their original contract with [*193] one another and the minority, the minority ma^^ treat it as rescinded and withdraw, instead of proceeding in equity, as clearly they may, for an injunction. To this point, the cases are numerous. Southern Pennsylva- nia Iron Co. V. Stevens, 87 Penn. St. 190; Xugent v. Supervisors, 19 Wal. 241; Bank v. Charlotte, 85 N. C. 433; International Railroad Co. v. Bre- mond, 53 Tex. 96, and cases passim. § 56,] FUNDAMENTAL ALTKRATION OF CHARTER. VM owner of sliaros expects, and stipulates with tlic other owners, as a corporate body, to pay them his projjortion of the expenses, which a majority may please to incur in the prosecution of the particular objects of the corporation. To make a valid chanu^e in this sjiecial contract, as in any other, the consent of botii pur- ties is indispensable." 2. In an important case- where it ajipcared that afte calls full *due, but before suit brought, the company, being incorporatt-d for the purpose of building a railway, procured an additional special act, by which they were authorized to purchase steam- boats, it was held, that a subscriber, not having assented to the alteration, was absolved from his obligation to pay calls. 3. In a very elaborate opinion of Bennett, Chancellor,-^ upon this subject, the following propositions are established : * (1.) Tiiat a majority of a joint-stock company cannot use the joint property except within the legitimate scope of their charter, * and if they attempt to do so equity will restrain them ; (2.) the shareholders are bound by such modifications of the charter as are not fundamental, but merely auxiliary to the main design ; (3.) if a majority of a railway company obtain an alteration of their charter which is fundamental, as, to enable them to build an extension of their road, any shareholder who has not assented to the act may restrain the company, by injunction, from applying the funds of the original organization to the extension. scribers aie still bound by all such as come fairly within the power. Cork & YouLiflial Railway Co. v. Patterson, 18 C. B. 4U; s. c o7 Kng. L. & Eq. 398; infra, § 25'1, note G; Nixon v. Brownlow, 30 Law T. 74; s. c. 3 II. & N. GSfi. " Hartford & New Haven Railroad Co. r. Croswell, 5 II ill, 383. In Winter I'. Muscogee Railroad Co., 11 Ga. 438, the charter was so altered as to allow the road to stop short of its original terminus and pass by a dilTerent route, and subscribers to the stock were held thereby relea.sed, unless tiiey a,-isentcd to the alteration. But where one gave his note for the first instalment, and his stock was forfeited for non-payment of calls, he is not relieved from pay- ment of his note by a material alteration of the charter. Mitchell v. Rome Railroaut where subscriptions are made uj)on the express condi- tion that the road shall go in a particular place, the performance of such condition is commonly regarded as indispensable to the liability of the subscribers, the same as in other contracts.^ (i) solidatioii of sucli company with another, the fact that such consolidation is suhspquently made affords no ground for avoiding the subscription. Bish i-. Johnson, 21 lud. 299. And if, from the articles of association of the com- pany, it is obvious that consolidation with another company was one of the leading purposes of tiie incori^oration, the fact of such consolidation, after the date of a subscription, will be no defence against its enforcement, even when the statute authorizing the consolidation is subsequent to the date of the sub- scription. Hauna v. Cincinnati & Fort "Wayne Railroad Co., 20 Ind. 30. The consolidation of two corporations does not effect the dissolution of either, so as to work the abatementof pending actions. Baltimore & Susquehanna Kail- roarise, to withdraw his name while the act of incorporation is goin^ tlirougli the legishiturc.^ 2. IJut an informal subscription, which is never carried throu'rh the steps necessary to constitute the subscribers members of the company, has been held inoperative, as no compliance with tlie act.''* And a subscription, npon condition that the road is built through certain specified localities, tlie company at the time not assuming to build the road through those places, will not, it has Ix'ou held, make the subscriber lialjlc to an action for calls, even if the condition be ultimately i)erfurnied by the company."* (^l>) But 2 Kidwelly Canal Co. v. Raby, 2 Price, 93; Brownlee v. Ohio, Indiana & Illinois Railroad Co., 18 Ind. GS. 8 Troy & Boston Railroad Co. v. Tibbits, 18 Barb. 298. * Macedon & Bri-stol Plank Road v. Lapliani, 18 Barb. 313. In tins case it seems to have been decided that such a subscrijition is not good, as a subscrip- tion for stock, not on the ground mainly that it was conditional and so against jtublic policy, or from want of mutuality, but on the ground of an extension of the road and an increase of the capital stock. See also Utica & Schenectady Railroad Co. r. Brinckerhoif, 21 AVend. 139, where such a decision is made. But the current of anthorit)-, both English and American, is in a counter direction. It is impo.ssible fairly to consider such a subscription, where the road is located ill a given line, in faith, and in fulfilment of the condition, as a mere offer, unaccepted. It is a proposal accepted, and as much binding as any other possible consideration. But if it were to be regarded as a mere open ofifer, when accepted according to its terms, it is binding as a contract and no longer revocable; and the only case of much weight, which ever attempted to main- tain the opposite view, that of Cooke v. Oxley, 3 T. R. G5-i, has been regarded as overruled on that point for many years. See L'Amoreux r. Gould, 3 Seld. 349; Connecticut & Pa.ssumpsic Rivers Railroad Co. v. Bailey, 24 Vt. 478. Mr. Benjamin, in his book on Sales, pp. 47-50, attempts to uphold the case of Cooke r. Oxley, on the ground that it has been misunderstood by the Ameri- can courts and text-writers. That may be so. But on what sensible gntund can that case be upheld to the full extent? If a continuing offer is made with- out consideration, no doubt it may be withdrawn at any time before it is accepted; and after the withdrawal is made known to the other party he is no longer at liberty to act upon it. But until that event, or the expiration shares, which must be said to contem- (h) But see Mansfield, Coldwater, l>late an additional act before parties & Lake Michigan Railroad Co. r. are to become shareholders, and an Stout, 20 Ohio St. 211 ; Cedar Rapids unconditional agreement to become & St. Paul Railway Co. r. Sj^af- shareholders when the corporation is ford, 41 Iowa, 292. And see inj'ra, formed, which is an offer which when pi. 4. accepted by the corporation is binding. [«203] 202 ASSESSMENTS OR CALLS. [PART IL * one might peril aps raise some question, whether, upon general principles, such a subscription ought not to be binding, as a * standing offer accepted and acted upon by the company, which is sufficient consideration for the })romise.^ 3. And even where a mere stranger subscribes to a railway company, with others, in order to induce the company to build a station-house and improve the roads to it, and to aid the company in such work, and the company perform the condition on their part, the subscription is upon sufficient consideration, and may be enforced against the subscribers,^ 4. And a subscription to the stock of a railway company, con- ditioned to be void unless the company would accept the convey- ance of a specific tract of land at a given price, is a mere offer to invest the land in shares, and until accepted by the company is of no validity.' (c?) 5. A subscription upon the performance of a condition becomes absolute upon such performance. The subscription takes effect from that time ; the first instalment required to be paid at the time of subscription then becomes due and payable, and the sub- scriber liable to assessment for the remainder.^ (cZ) 6. There is another case^ wherein propositions are declared of the offer by lapse of time, he is at liberty to accept it; and if he do so, a valid contract is thereby ci'eated between the parties, on the basis of the offer. This view is placed on very satisfactory grounds by Mr. Justice Nelsox, in Taylor v. Merchants' Fire Insurance Co., 9 How. 390. There is, unquestion- ably, this difference between a standing offer made upon consideration and one made gratuitously; that in the former case it cannot be withdrawn, and in the latter it may be. But even in the case of a gratuitous offer, the with- drawal does not become effective until notice of such withdrawal reaches the adverse party. If the latter, before such notice, do that, which by the terms of the offer amounts to unconditional acceptance, the contract is complete, and both parties irrevocably bound by it. The subject is very justly illustrated by Mr. Justice Fletcuek, in the case of Boston & Maine Railroad Co. v. Bartlett, 3 Cush. 224. ^ See this subject more fully discussed in §§ 51, 55, supra. See, also, John- son V. Wabash & Mount Vernon Plank Road Co., 10 lud. 389. ^ Kennedy v. Colton, 28 Barb. 59. ' Junction Railroad Co. v. Reeve, 15 Ind. 236. ^ Ashtabula & New Lisbon Railroad Co. v. Smith, 15 Ohio St. 328. ® Bedford Railroad Co. v. Bowser, 48 Peun. St. 29. See, also, Lowe v. E. & K. Railroad Co., 1 Head, 6-59. (c) See supra, § 48, note (/>). ((/) See supra, § 48, note (b). [*204, *205] §58.] SUBSCRIPTION UPON SPKCIAL TKRMS. 203 whicli seem at variance with the general rule that Bubscriptions dependent upon conditions are not effectual until such conditions arc complied with. It was here held, that commissioners ai>- pointed to receive subscriptions to the stock of a projected rail- way company are so far limited in their authority that they have no power to attach conditions to subscriptions received by them, and where they do so the act is not binding upon the c(jmpany, and that after the organization of the corporation, the directors have no power to assume the subscriptions u])on the conditions named, i. e. that the comjjany assume the payment of the sub- scrij)tions and release the subscribers. 7. But we apprehend that if this decision is maintainable upon * recognized rules of law, it must be because the wliolc scheme of such a subscription evidences a covert fraud upon the contem- plated corporation, and that the act of the directors is but one step in fulfilment of the scheme, as the case shows the action of the first board of directors was immediately repealed upon the coming in of a new board, and the court held it competent to show what took place at the time of passing the first resolutions, with a view to establish the fraudulent purpose. SECTION XII. Subscription iqjon Special Terms. 1. Subscriptions not pavalile in money. 2. Subscriptions at a discount, not bind- ing. n. 2. Contracts to release subscriptions not biniling. 3. 4. Subscriptions before and after or- ganization. President may accept conditional subscriptions. 5. Subscription payable in labor not en- forced in money until opportunity given to perform. 6. True rule, subscription enforceable only according to terms, but direc- tors responsible to creditors for money. 7, 8, 'J. Subscriptions to be paid in bonds at par value. 10. Qitiire, wlietber a corporation can stipulate to pay interest on stocks. 11. Such a certificate of stock is not thereby rendered inoperative for legitimate purposes. § 58. 1. It is well settled, that a railway, or other joint-stock company, cannot receive subscrij)tions to their stock. ])ayablc at less sums, or in other commodities, than that which is dcmnmlod [-0.;] 204 ASSESSMENTS OE CALLS. [PART IL of other subscribers. Hence subscriptions, jiayablc in storc-i)ay, or otherwise than in money, will be held a fraud upon the other sub- scribers, and payment enforced in money.^ (a) 2. So too in a case where subscriptions to stock of such a com- pany * are, by the agents of the company, agreed to be received at a discount, below the par value of the shares, it will be re- garded as a fraud upon the other shareholders, and not binding upon the company .^ (J) 1 Henry v. Vermillion & Ashland Railroad Co., 17 Ohio, 187. But in Phila- delphia & West Chester llailroad Co. v. Hickman, 28 Penn. St. 318, it is said the company may compromise subscriptions for stock, which are doubtful, on receiving part payment, or may receive payment in labor or materials, or in damages which the company is liable to pay, or in any other liability of the corporation. The certificates of stock in this case were issued to the contrac- tors, in part payment for work done by them on the road; to others, in part payment for a locomotive, for sleepers, for land-damages, and for cars. We do not understand how there can be any valid objection to receiving payment for subscriptions to the capital stock in this mode, if the shares, so disposed of, are reckoned at their fair cash value, at the time the contract is entered into. Contracts of this kind have been very generally recognized by the courts as valid. 2 Mann v. Cooke, 20 Conn. 178. In this case the defendant subscribed for forty shares on condition that all future calls should be paid, as required, or the shares should become the property of the company. He thereupon re- ceived certificates of ownership of the forty shares, the special terms of his subscription not being known to the other subscribers. Some time afterwards, the company being largely indebted, and insolvent, and the greater part of the instalments on its stock being unpaid, the president made an arrangement with the defendant that he should immediately pay the instalments on twenty shares of his stock, in full, and be discharged from all liability on the other twenty shares. The defendant complied with these terms, and the money paid went for the benefit of the company. The plaintiff was appointed re- ceiver, and brought a bill for the balance due on the other twenty shares, (a) In Richfield & New York Rail- ing its value are said to be a fraud on road Co. v. Brush, 43 Conn. 86, how- subscribers whose subscriptions are ever, it was held that a subscription unconditional. But see contra, Hinton with a supplemental agreement that it v. Morris Covmty Co-operative Society, should be payable in work and mate- 21 Kan. GGo, where the directors agreed rials was valid, it being made in good with a purcliaser of shares that he faith. should have the privilege of withdraw- (J>) As to subscriptions upon condi- ing his money at any time on thirty tions generally, see Burke v. Smith, days' notice and surrender of his 16 Wal. 3f)0, where conditions hinder- shares, and the agreement was up- ing the collection of capital or lessen- held. [*207] § 58.] SUBSCRIPTION UPON SPECIAL TERMS. 205 * 3. In a case in Pennsylvania,-"^ it is said tliat snbscriptions made to the capital stock of a corporation before its organiza- tion, must always be payable in money only. But after the or- ganization, the company may stipulate with the subscriber f«)r })ayraent in any other mode, and can only enforce the contract according to its terms ; and the act of the president of the com- pany in accepting conditional subscriptions is binding upon the company. 4. It is also held in the same case,^ that the fact the sul> scribcr makes part payment in money before call, will not estop him from setting up the special contract in defence of an after call. and it was held, that the subscription was in legal effect the same as an ordi- nary subscription without condition; that the arrangement made with the president was void, as a fraud upon stockholders and creditors; and that the company, being created for public purposes, could not receive subscriptions under a private arrangement at less than the par value of the stock, as this would deprive the company of so much of its available means, and thus operate as a fraud upon all parties interested. But where one paid for stock, under a secret agreement with the commis- sioner of contracts that he might receive land of the company at a future day, and pay in the stock certificate, and the company declined to ratify tlie con- tract, it was held that the subscriber was released from his portion of the con- tract, and might recover the money he paid for the stock of the company. Weeden v. Lake P2rie & Mad River Railroad Co., 11 Ohio, 503. But in the case of the Cincinnati, Indiana, & Chicago Railroad Co. v. Clarkson, 7 Ind. 595, it seems to be considered, that the company is bound by a contract to compen- sate a solicitor of subscriptions payable in land, but no question is made in regard to the validity of the subscriptions. The solicitors were ordered by the directors to accept such subscriptions, and were to have two per cent on all which were accepted by the company, and the contract was held binding on the company. An agreement by a railway company, that a subscriber for stock may pay the full amount, or any part of his subscription, and receive "interest thereon until the road goes into operation," does not oblige the company to pay interest before the road goes into operation. Waterman r. Trey & Greenfield Railroad Co., 8 Gray, 433. See, also. Buffalo & New York City Railroad Co. v. Dudley, 14 N. Y. 33G; supra, § 51, pi. 4. An agreement to pay interest on stock " as soon as paid," means fully paid. Miller v. Pitts- burg & Connellsville Railroad Co., 40 Penn. St. 237. « Pittsburg & Connellsville Railroad i-. Stewart, 41 Penn. St. 54. The question of the presumptive effect of the conduct of a subscriber after the organization of the company, in attending and taking part in the meetings of the company, on the proper construction of any special contract with the cora- panv, is here considerablv discussed. [♦208] 206 ASSESSMENTS OR CALLS. [PART IL 5. But in a somewhat recent case in Alabama,* it was licM that a subscription to the capital stock of a railway company in ex- press terms made payable in work, in grading the line, to be taken at the public or private letting and performed to the accep- tance of the company's engineer, could not be enforced against the su])scril)or until he had had reasonable opportunity to per- form the contract in the manner specified by its terms. But if after that, the defendant failed on his part to perform it, he was liable to pay the amount in money. It is here said that the subscriber must take notice of the published lettings of the work. 0. The cases may seem conflicting upon this point; but the true principle seems to be, that the corporation can only enforce the contract of subscription according to its terms, and of this the subscriber cannot complain, or resist successfully the enforce- ment of his subscription in that mode. But so far as the credi- tors of the company are interested in the matter, they may hold the directors res})onsible for having received the amount of the capital stock in money. And as to the duty of the directors, they cannot, in strictness and fairness, receive subscriptions pay- able in any thing but money ; nor can they launch the company until the whole capital stock is subscribed in money. And any fraud or evasion in this particular will render the directors re- sponsible for the debts of the company, as in equity and fair deal- ing it should. * 7. There is a very sensible case ^ in North Carolina bearing upon this question. The legislature had authorized the town of Newborn to take stock in a company for improving the naviga- tion of the river Neuse, by which the business of the town was expected to be advanced. The town was, by the act, authorized * Eppes r. Mississippi, Gcainesville, & Tiiskaloosa Railroad Co., 35 Ala. 33; Haywood & Pittsborough riaidi Road Co. v. Biyan, G Jones, N. C. L. 82. s Neuse River Navigation Co. v. Newbern Commissioners, 7 Jones, X. C. L. 275. But in Shoemaker v. Goshen Turnpike Co., 14 Ohio St. oQ"), from the mere permission in the statute to submit the question of sub- scription to the voters of a township, the court implied the power to issue bonds in payment of such subscription in the usual negotiable form, and to negotiate them to the company at par, in payment for the stock sub- scribed. [*209] § ;jS.] subscription UPON SPECIAL TCRMS. 207 to pay foV the stock subscribed by them willi their bonds, to liC issued and sold on certain terms, but the amount of bonds issued was restricted to the amount of the stock subscribed, and it was held, that as the corporation could not, except by lei^islative sanc- tion, accept anything but money in payment of stock, and could not issue stock at any rate below par, the bonds could not be sold below par; and that to a mandamus to compel the town to pav for stock thus subscribed, it must be regarded as a sulhcient re- turn, that the authorities of the municipality had ])rcpared and executed the l)on(ls, and had offered the same for sale by pulilic advertisement, and had diligently endeavored otherwise to effect a sale of the same on the terms prescribed by the statute, and had not l)cen able to sell the same. 8. This case unquestionably puts these perplexing inquiries upon the true basis ; that is of fair dealing or no dealing at all. Ihit we apprehend that railway contractors and builders would regard it as placing the matter in a very impracticaljle light. And we are not prepared to say how far the courts will feel justified in departing from the strict letter of the law in these particulars, out of deference to the speculative tendencies of the age. 9. It is certain that corporate stocks, from the first, are now always more or less a matter of speculation in the market; and the same is true of all municipal bonds issued in aid of enterprises affecting the interests of such corporations. And, iu fact, no one ever dreams of demanding strictly ])ar values, in dealing either with the bonds or the stock, and we do not suppose it can now ever be brought back to the strictly par basis. 10. There seems to be some question whether a corj»oration can stipulate to pay interest uj)oii its stock certificates from the first, without regard to the (>arnings of the company. It is certain such a stipulation is at variauec with the ordinary duties of cor- porations, and will not therefore come within the range of the iuipliod authority of tlie directors of the company. Ihit in one ease,*^ it seems to have been considered, that the stoekholdrrs * iMcLnncrhlin v. Detroit & :\Iihvaukeo Railrnnd Co., S :\licli. lUO. It seems scarcely allowable to treat the vote of the majority as a ratilication of an act of the directors beneficial to the minority, ami at the same time not l>in owners. Uuangst's Appeal, 55 Peun. St. 128. (a) Here right of way can be had of or by estoppel. It cannot be had of an no one but the owner, either by deed equitable owuer of an undivided in- [-17] 220 RIGHT OF WAY BY GRANT. '[part III. ests (in any lands) of what kind soever," if the same, or the right of way over them, be requisite for their purposes. 2. And by another section of the same statute such companies are empowered to purchase such lands of persons legally inca- pacitated to convey the title, under other circumstances, as guar- dians of infants, committees of lunatics, trustees of charitable or other uses, tenants in tail, or for life, married women seised in their own right, or entitled to dower, executors or administrators, and all parties entitled, for the time being, to the receipt of the rents and profits.^ (b) * Hutton V. London & Southwestern Railway Co., 7 Hare, 264. Some sug- gestions are here made by Vice-Chancellor Wigram iu regard to the time within which it is requisite to make compensation in the several modes of taking terest in a reversion, nor can it exist over an undivided interest alone. Taput V. Detroit, Grand Haven, & Mil- waukee Railway Co., 50 Mich. 267. Nor can it be had from a holder of a contingent dower interest, or from a tenant at will. Toledo, Ann Arbor, & Grand Trunk Railway Co. v. Dun- lap, 47 Mich. 456. But a husband having absolute control and manage. ment of land, the legal title of which is held by another, for the benefit of his wife and children, may give a li- cense good so long as he lives, if it does not injuriously affect his duties under the deed. Tutt v. Port Royal & Augusta Railroad Co., 16 S. C. 365. De- sistance from opposition by a raei'e tres- passer is no consideration for a promise to pay to quiet opposition. Botkin V. Livingston, 21 Kan. 232. A con- veyance with a reservation of a spring and a right to lay pipes thereto lield not to preclude the company from lay- ing a track over the spring, the spring being properl}' protected. Matthews V- Delaware & Hudson Canal Co., 27 Hun, 427. Agreement to convey more land than covenantor owns. Hutchin- son V. Chicago & Northwestern Rail- way Co., 41 Wis. 541. An agreement [*217] to convey construed. Wheeling, Pitts- burg, & Baltimore Railroad Co. v. Gourley, 99 Pa. St. 171. Conveyances construed. Warner i;. Sandusky, &c., Railroad Co., 11 Am. & Eng. Railw. Cas. 417; Hutchinson v. Chicago & Northwestern Railway Co., 37 Wis. 582. As to when an action will lie for breach of an agreement under which the company has taken possession, see Kansas Pacific Railway Co. v. Hop- kins, 18 Kan. 494. And against whom, see Preston v. Liverpool, Man- chester, & Newcastle Railroad Co., 1 Sim. N. s. 586. As to measure of damages for breach of a contract to convey, see New Haven & Northampton Co. v. Ilayden, 117 I\Iass. 433; Varner v. St. Louis & Cedar Rapids Railway Co., 55 Iowa, 677 ; Davies i'. St. Louis, Kansas City, & Northern Railway Co., 56 Iowa, 192. (h) Purchase-money paid into court under the statute, for land of which an infant is seised in fee, takes the place of the land and descends to the heirs. Kelland v. Fulford, Law Rep. 6 Ch. D. 491. § Gl.] OBTAINING LANDS BY EXPRESS CONSENT. 221 * 3. The valuation in tliis latter class of cases is to be made Ijy disinterested persons, and the price paid into the bank for the benefit of the parties interested. 4. And wlicrc a railway act provided, in terms, that nothinf^ therein should authorize the conijjany to do any damage or preju- dice to tlie lands, estate, or property of any corporation or person whatsoever, without the consent in writing of the owner and oi:cupier, it was held they could not pass the line of another railway without their consent, although the withholding of such consent should frustrate the purpose of the grant.^ 5. In this country most of the railway charters contain a power to the company to acquire lands, by agreement with the owner. In such case it has been held the rights of the company are the same as where they take their land under their compulsory powers. And they are bound to the same care in constructing their road.* ('). And whore the railway have the power to take five rods, through the whole course of their line, and a land-owner deeds them the full right to locate, construct, and repair, and forever maintain and use their road over his land, if, in laying the drains or ditches through the land, it becomes necessary to go beyond the limits of the five rods, in order to guard against the effect of lands. The principal point settled is, that in regard to lands injuriously alTected by railway works on other lands, it is not requisite to make compen- sation in advance. But where lands are purchased from persons under dis. ability, the course of devolution of the property is not tiiereby changed, but the money paid in compensation is to take the place of the land, and to be treated as real estate. Midland Counties Railway Co. v. Oswin, 1 Coll. 74; 8. c. 3 Railw. Cas. 497; Ex parte Flamank, 1 Sim. N. s. 260; In re Horner's Estate, o l)e G. & S. 48:5; s. c. 13 Eng. L. & Eq. 531; In re Stewart's Estate, 1 Sm. & G. 32; s. c. 13 Eng. L. & Eq. 533. « Clarence Railway Co. v. Great North of England Railway Co., 4 Q. B. 45; Gray v. Liverpool & Bury Railway Co., 9 Beav. 391; s. c. 4 Railw. Cas. 235. ♦ Whitcomb v. Vermont Central Railroad Co., 25 Vt. 49, 09. Tliis right to acquire lands, by contract with the owners, is probably limited, by impli- cation, if not expressly, to the necessities of the company, the same .as the right to take in invilum, and cannot be extended to any private use. But if the owner of the land consent to the use, the constitutional objection i.s re- moved, and the right to hold the land is a question between the company and the public. Dunn v. Charleston. Harper, 189; Harding v. Goodlett, 3 Yerg. 41; 11 Weud. 149; Embury i;. Conner, 3 Comst. 516. [*218] 222 RIGHT OP WAY BY GRANT. [PART III. a stream to bo passed, the company may lawfully do so under the grant.^ (e) * 7. In case of a deed to a railway company of land, on wliicli to construct their road, the assent of the company will be pre- sumed, and they are bound by the conditions of the grant, (d) as that the road shall be so constructed as not to interfere with buildings on the land.^ 5 Babcock v. Western Railroad Co., 9 Met. 553 ; s. c. 1 Redf. Am. Railw. Cas. 191. But a contract with the owner of land for leave to build the road through his land, and staking out the track through the land, is not such occupation as will be notice of the right of the company against a subsequent mortgagee. Merritt v. Northern Railroad Co., 12 Barb. 605. But the pay- ment by the company of the price of the land, and changing its route in faith of the title, might give an equity superior to that of a subsequent mortgagee. lb. The deed of one tenant in common is a good release of his claim for damages, although it convey no right as against his co-tenant. Draper v. Williams, 2 Mich. 53t). But an agreement to sell land to a railway company, and a tender of the price by the company, gives no title. Whitman v. Boston & Maine Railroad Co., 3 Allen, 133. ^ Rathbone v. Tioga Navigation Co., 2 Watts & S. 74. And the rights and duties of the company, in such case, are precisely the same as if the land had been condemned, by proceedings in invitum, under the statute. Norris v. Ver- mont Central Railroad Co., 28 Vt. 99. Such grant carries the incidents neces- sary to its enjoyment; and if it become necessary, in constructing the road, to (c) Where by statute the company over the land. See East Line & Red may receive conveyances of a right of River Railroad Co. v. Garrett, 52 Tex. way not exceeding a certain width, a 133. And see Hastings & Avoca conveyance not specifying the width Railroad Co. v. Miles, 56 Iowa, 447. will give a right of way as wide as the Failure to perform a condition subse- company may wish to occupy, not quent is no ground for setting aside the exceeding that named in the statute, conveyance. Stringer r. Mount Pleas- Indianapolis, Peru, & Chicago Railway ant & Northern Railroad Co., 59 Iowa, Co. V. Rayl, 69 Ind. 424. A deed for 277. And see Galveston, Harris- a strip of land of a certain width burg, & San Antonio Railroad' Co. v. along a line yet to be established con- Pfeuffer, 56 Tex. 66. Nor will title veys a mere floating right. Detroit, revert. Texas & New Orleans Rail- Hillsdale, & Indiana Railroad Co. v. way Co. v. Sutor, 56 Tex. 496. After Forbes, 30 Mich. 165. conveyance with promi.^e that company (c?) A condition that a certain sys- shall construct crossings, the company tern of drainage be kept up is a con- cannot evade its contract by proceed- dition subsequent. Hammond v. Port ings to condemn. Gray v. Burlington Royal & Augusta Railroad Co., 15 & Missouri River Railroad Co., 37 S. "c. 10; s. c. 16 S. C. 567. Stipula- Iowa, 119. tion that company will locate its road [*2t9] § 61.] OBTAINING LANDS BY EXPRESS CONSENT. 223 8. An oral permission to take and use land for a railway is a bar to the recovery of damages for such use, until the permission is revoked." (e) In one case before the House of Lords,^ a very important, and as it seems to us reasonable and just qualification is annexed to the familiar doctrine of implied assent to the appro- priation of land to a permanent use, by the owner standing by and not objecting. It is here ruled, " If a stranger builds upon tlic land of A., supposing it to be his own, and A. remains wil- fully passive, equity will not allow him to profit by the mistake ; but if the stranger knows that the land upon which he is building belongs to A., then A. may assert his legal rights and take the * benefit of the expenditure. And a tenant building upon his make a deep cut, it may be made, and the company is not bound to protect the banks of the excavation by a wall. Ilortsman v. Lexington & Covington Railroad Co., 18 B. Monr. 218. See also Louisville & Nashville Railroad Co. r. Thompson, 18 B. Monr. 735. ' Miller v. Auburn & Syracuse Railroad Co., G Hill, Gl. It seems to have been made a question whether the company, after the revocation of such license, could be allowed to remove the fixtures of the road from the land, such as rails, spikes, &c., and it was held it might remove them as trade fixtures. Northern Central Railroad Co. v. Canton County, 30 Md. 347. And such license, when executed by the construction of the work, is not allowed to be revoked. The only relief the party is entitled to is compensa- tion for his land. Trenton Water-Power Co. v. Chambers, 1 Stock. 471. An^e was of the e.ssence of the agreement, having been made by another at the and specific performance was refused, procurement of the company, the noni- Firth r. INIidland Railway Co., Law inal purchaser is a necessary party. Rep. 20 Eq. 100. Pennsylvania & New England Railroad ((•) To a bill to enforce a contract Co. v. Ryerson, 36 X. J. Fa]. 112. [*224] 230 RIGHT or WAY BY GRANT. [PART III. 7. Where one contracts with a railway company, under seal, to permit them to construct their road over his land, in either one of two routes, and to convey the land after the road shall be defm- itively located, with a condition that the deed shall be void, when the road shall cease or be discontinued, if the company take the land and build their road upon it, specific performance will be decreed, although the company did not expressly bind themselves to take the land, or pay for it. And where the company had been in the use of the land for their road three or four years, it was held no such unreasonable delay as to bar the relief * sought. The party cannot excuse himself by showing, that, from his own notions, or the representations of the company, or of third persons, he was induced to believe that a different route would have been adopted by the company, or that there was an inad- equacy in the price stipulated, unless it be so gross as to amount to presumptive evidence of fraud or mistake.^ 8. But it is a good defence, in such case, that the party was led into a mistake, without any gross laches on his part, by an un- certainty or obscurity in the descriptive part of the agreement, so that it applied to a different subject-matter from that which he understood at the time, or that the bargain was hard, unequal, or oppressive, and would operate in a manner different from that which was in the contemplation of the parties when it was ex- ecuted. But in such case the burden of proof is upon the defend- ant, to show mistake or misrepresentation.^ In an English case^*^ before the Court of Chancery Appeal, after elaborate argument, the Lord Justice Knight Bruce, an equity judge of the most held the company had a right to GO feet through the whole land, and was only restricted in relation to the distance the road went from the corners named. Lexington & Ohio Railroad Co. v. Ormsby, 7 Dana, 276. ' Western Railroad Co. v. Babcock, 6 Met. 346; s. c. 1 Am. Railw. Caa. 365. The delivery of a deed to the agent of a corporation, in such case, is sufficient. And where the party, in disregard of his contract, obtains an assessment of damages, under the statute, his liability on the contract is, to the difference between the appraisal and the stipulated price in the contract. Un- reasonable delay is ordinarily a bar to specific performance in a court of equity. Guest v. Homfray, 5 Ves. 818; Hertford v. Boore, Aston v. Same, 5 Ves. 719; Watson v. Reid, 1 Russ. & M. 236; 2 Story Eq. Jur. §§ 771, 777, and cases cited. 10 Wycombe Railway Co. v. Douniugton Hospital, Law Rep. 1 Ch. Ap. 268; 8. c. 12 Jur. N. s. 347. [*225] § Gli.] SPECIFIC PERFORMANCE IN EQUITY. 231 extended Icarnini^ and cxperienco, tlius states the rule ujxjn this point: This court will not enforce specific j)erforn)ance of a cou- tract, where the defendant proves that he understood it in a sense difi'erent from the phiintiff, even although the phiintilFs construc- tion may be the plain meaning of the contract. 9. Where the count}' commissioners made order in regard to the mode of construction of a railway, in crossing a higliway, it was held, that the mayor and aldermen of a city, or the selectmen of a town, arc the only proi)er parties to a bill for specific per- formance, and that the owners of the land, over wliich tlie railway l)asses, are not to be joined in the bill.^^ But where the * order " Biainard v. Connecticut River Railroad Co., 7 Cush. 50G. In Roxbiiry f- Boston & Providence Railroad Co., G Cush. 4"J4, it was also held that the coni- Hjlssioners must make such order specific, and not in the alternative, ami that laches, in regard to such order, will not defeat the claim for a decree for specific performance, where public security is essentially concerned. And courts of equity have held a parol license to erect public works irrevo- cable, the works being erected in faith of it, and the company entitled to hold the land on making compensation, and have virtually decreed specific per- formance. Trenton Water-Power Co. v. Chambers, 1 Stock. Ch. 471. See also Hall v. Chaffee, 1:5 Vt. 1-30; Boston cSc IMuine Railroad Co. v. Bartlctt, 3 Cush. 221. But it is held that an action for the price of land will not lie ou a parol contract of sale, where there has been no conveyance of the land, although the company has taken possession and paid part of the price. Rey- nolds I'. Dunkirk & State Line Railroad Co., 17 Barb. G12. This is un- doubtedly according to the generally recognized rule on the subject, in those states where the Statute of Frauds is in force. In Laird r. Birkenhead Railway Co., 6 Jur. n. s. 1 10; s. c. 1 Johns. Ch. Eng. 500, the question of an estoppel in fact becoming so fixed on a railway company by acquiescence as to be enforced by a court of equity, is discussed by Vice-Chancellor Wood, and placed on higher and sounder grounds than in most of the earlier cases. The plaintiff, by parol agreement with the company, built a tunnel through the company's land in order to facilitate access to hi.s business, laid rails, and used the same for two years, paying tolls as agreed. The company then claimed that the plaintiff was merely a tenant at will, and subject to dictation as to the right to use and the terms on which he might use the works, and gave notice in writing of the immediate and absolute termination of the contract, and in pursuance of such notice removed the rails and permanently erected a board across the passage. The learned judge said, it must be inferred, from the nature of the transaction, and after all that expense, that it was not to be determined by three months' notice; that the ne- cessary inference was that there was to be a right of user a.s long as the plaintiff was the owner of the yard. It was further considered that, aside from the actual use, a court of equity would have decreed specific performance on reasonable terms; and that after use for a considerable term on th'' basis of [*::2t)] 232 RIGHT OF WAY BY GRANT. [PART III. required the highway to be so raised as to pass over the railway, at a place named, but without defining the height to which it should be raised, the grade, the nature of the structure, or the time within which it should be made, it was held too indefinite to justify a decree for specific performance.^^ * 10. The Master of the Rolls, Lord Roimilly, in Raphael v. Thames Valley Railway ,i^ held, that in deciding whether specific performance sliould be enforced against a railway company, the court must have regard to the interests of the public, and there- fore, where a bridge had not been constructed in conformity with an agreement with a land-owner, but the injury to the land-owner was small, and the railway had since been opened for trafhc, and the relief, if granted, would have necessitated an interference with the traffic, the court refused to compel specific performance. 11. And it has been more recently declared by the English courts of equity, that where a contract is vague and so uncertain that no compensation could be awarded, a decree for specific per- formance could not be made.^* So also the court will not inter- fere after considerable lapse of time and when the company are not possessed of funds for completing the purchase.^^ So refusal to decree specific performance may be based upon the public safety and convenience.^^ 12. And a Court of Equity will not make the amount to be paid for land a charge upon the land, under leave to apply for further directions, where it was not made so by the original decree.^" an unsigned memorandum, the court would regard that as evidence of the ultimate agreement of the parties, s. p. Mold c. Wheatcroft, 27 Beav. 510. But the railway companies of a sovereignty so far represent or partake of the prerogative character, that any acquiescence on their part in a use of their lands, inconsistent with the permanent rights of the public, will be construed as merely temporary, and will create no permanent rights in the party exer- cising such use. Heyl v. Philadelphia, Wilmington, & Baltimore Railroad Co., 51 Penn. St. 4G9. ^2 lloxbury r. Boston & Providence Railroad Co., 2 Gray, IGO. " Law Rep. 2 Eq. 37; s. c. 12 Jur. x. s. 656. " Tillett V. Charing Cross Bridge Co., 26 Beav. 419; s. c. 5 Jur. n. s. 994. ^5 Pryse x\ Cambrian Railway Co., Law Rep. 2 Ch. Ap. 444. '8 Raphael v. Thames Valley Railway Co., Law Rep. 2 Eq. 444. " Attorney-General i'. Sittingbourne & Sheerness Railway Co., Law Rep. 1 Eq. 636. [*227] § G3.] GENERAL rUINCIPLES. 233 ♦CHAPTER XI. EMINENT DOMAIN. SECTION I. General Princijjles. 1. Definition of the right. 2. Distinguislicd from the ordinary pro- prietiiry right of the sovereign. 3. Necessary attribute of sovereignty. 4. Antiquity of its recognition. 5. Limitations upon its exercise. 0. ■Resides principally in the states. 7. Duty of making compensation. 8. Kiglit to regulate use of navigable waters. 0, 10, 11. Its exercise in rivers, above tide-water. § 63. 1. Tins title is very little found in the Enp:li.sli books, and scarcely in the English dictionaries. Ihit with iis, it has been adopted from the Avriters on national and civil law, iii)on lln* continent of Europe,^ and is perhaps better understood than almost any other form of expression, for the same idea. It is defined to be that dominium eminens, or superior right, which of necessity resides in the sovereign power, in all governments, to apply private property to public use, in those great public emer- gencies which can reasonably be met in no other way. 2. It is a distinct right from that of public domain, which is the ^ land belonging to the sovereign. This is a superior right which the sovereign possesses in all property of the citizen or snbject, whether real or personal, and whether the title were originally derived from the sovereign or not. -One of the cliief occasions for the exerei.se of this right is, in creating the necessary facilities for intercommunication, which in this country is now- very generally known by the name of Internal lm|trovcmcnt. This extends to the construction of highways (of which tiun- Jiikcs and railways arc, in some respects, but diflVrcnt modes of construction and maintenance), canals, ferries, wharves, basins. and some others.^ 1 Vatt. B. 1, c. 20, § 211; Code Nap. B. 2, tit. 2, 515; 1 Bl. Com. 139; Gardner r. Newbur^h, 2 Johns. Ch. 102; 2 Dallas, 310. 2 3 Kent Com. 339 ct seq. and"iiote.s; Beekman v. Saratoga & Sclienectady Railroad Co., 3 Baige, -15, 73; 12 Pick. 467; 23 Pick. 327; 3 Seld. 3U. This [•228] 234 EMINENT DOMAIN. [PART m. * 3. This is a right in the sovereignty, which seems indispen- sable to the maintenance of civil government, and which seems to right, as some of the above cases show, extends to numerous matters not named in the text, but it would be out of place here to enter into the discus- sion of the general subject. The indispensable prerequisites to the exercise of the right will appear, as far as they apply to the subject of this work, in the following sections. That railways are but improved highways, and are of such public use as to justify the exercise of the right of eminent domain, by the sovereign, in their construction, is now almost universally conceded. Williams v. New York Central Railroad Co., 18 Barb. 222, 2i6; State v. Rives, 5 Ire. 297; Northern Railroad Co. V. Concord & Claremont Railroad Co., 7 Fost. N. 11. 183; Bloodgood v. Mo- hawk & Hudson Railroad Co., 18 Wend. 9; s. c. 14 Wend. 51; s. c. 1 Redf. Am. Railw. Cas. 209; 1 Bald. 2U5. See also 3 Paige, 73; 3 Seld. 314; Don- naher v. State, 8 Sm. & M. 649. A freight company has been regarded as not of such public interest as to justify taking land by the right of eminent domain. This was for loading and unloading freight. Memphis Freight Co. v. Memphis, 4 Cold. 419. But this case is perhaps questionable. A railway for the purpose of transporting freight is as much for a public use as one also for the transpor- tation of passengers. And a freight company of more limited extent miglit be said to be in aid of the company carrying greater distances. The marginal railways in cities for the purpose of connecting the different lines of traffic, are as much public companies entitled to exercise the sovereign right of eminent domain, as any other railway. But no railway company can take land for other than public uses, as for the deposit of dirt, &c., not connected with the efficient use of its right of way. Lance's Appeal, 55 Penn. St. IG. It seems to be well settled, that the legislature has no power to take the property of the citizens for any but a public use but that a railway is such use. Bradley v. New York & New Haven Railroad Co , 21 Conn. 294; Symouds v. Cincinnati, 14 Ohio, 147; Embury v. Conner, 3 Comst. 511. But this is a power essentially different from that of taxation, in regard to which there is no constitutional restriction, and no guaranty for its just exercise, except in the discretion of the legislature. People v. Brooklyn, 4 Comst. 419; Cincinnati, Wilmington & Zainesville Railroad Co. v. Clinton County Com- missoners, 1 Ohio St. 77. The legislature must decide, in the first instance, when the right of eminent domain may be exercised, but this is subject to the revision of the courts, so far as the uses to which the property is applied are concerned. 2 Kent Com. 340. But as to the particular instance, the decision of the legislature, and of the commissioners ai^pointed to exercise the power, is ordinarily final and not re- visable in the courts. Varrick v. Smith, 5 Paige, 137; Armington v. Barnet, 15 Vt. 745. And the legislature may restrain the owners of property, in rejjard to its use, when in their opinion the public good requires it, unless with compensa- tion to those injured, as this is not the exercise of the right of eminent domain. Commonwealth v. Tewksbury, 11 Met. 55; Coates v. New York, 7 Cow. 585. But see Clark v. Syracuse, 13 Barb. 32. r*229] § G3.] GENERAL PRINCIPLES. 235 * be rather a necessary attribute of the sovereicrn power in a htaic, than any reserved right in the grant of property to the subject or citizen. 4. It seems to have been accurately defined, and distinctly recognized, in the Roman empire, in the days of Augustus and his immediate successors, although, from considerations of policy and personal influence and esteem, they did not always choose to exercise the right to demolish the dwellings of the inhabitants, cither in the construction of public roads or aqueducts, or orna- mental columns, but to purchase the right of way. 5. But in the states of Europe and in the written Constitution of the United States, and in those of most of the American states, an express limitation of the exercise of the right makes it dei)end- ent upon compensation to the owner.^ But this provision in the United States Constitution is intended only as a limitation upon the exercise of that power, by the government of the United States.3 6. And it would seem that notwithstanding this right of sov- ereignty may reside in the United States, as the paramount sov- ereign, so far as the territories are concerned, in reference to internal communication, by highways and railways, and notwith- standing the ownership of the soil of a portion of the lands, by the United States, in many of the states, as well as territories, still, when any of the territories are admitted into the Union, as imle- pcndcnt states, the general rights of eminent domain are vested exclusively in the state sovereignty.* 7. The duty to make compensation for property, taken for pul)- lic use, is regarded, by the most enlightened jurists, as founded in the fundamental principles of natural right and justice, and as » Rarron v. Baltimore, 7 Pet. 213; Fox v. Ohio. 5 How. 110, 431. 135. * Pollard V. Ila-an, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Doe r. Beebo, 13 How. 2."); United States v. Railroad Bridge Co., (5 McLean, 517. In Illinois Central Railway v. United States, 20 Law Rep. G3U, the court of claims held, that the abandonment of a military reserve, which had become useless for military purposes, causes it to fall back into tlie general ma.s3 of public lands, and that a state, by virtue of its right of eminent domain, may authorize the construction of railways through land owned but not occupied by the United States. And tlie United States being in possession of land owned by the plaintiff, necessary to carry out the objects of its charter, it was held, that a payment made by the plaintiff, to obtain possession thereof, w-is made under duress, and might be recovered back. [*230] 236 EMINENT DOMAIN. [PART III. * lying at the basis of all wise and just government, independent of all written constitutions or positive law.^ 8. But the public have a right, by the legislature, through the proper functionaries, to regulate the use of navigable waters ; and the erection of a bridge, with or without a draw, by the authority of the legislature, is the regulation of a public right and not the deprivation of a private right, which can be made the ground of an action, even where private loss is thereby produced, nor is it the taking of private property for public use which will entitle the owner to compensation.^ 9. And where a ford-way was destroyed by the erection of a dam across a river, in the construction of a canal or other public work, under legislative grant, the river being a public highway, although not strictly navigable, in the common-law sense (which only included such rivers as were affected by tide-water), it was held the owner of the ford-way could recover no compensation from the state, or their grantees, the act being but a reasonable exercise of the right to improve the navigation of the stream as a public highway." 10. Neither can the owner of a fishery, which sustains damage or destruction Ijy the building of a dam to improve the navigation of a river above tide-water, under grant from the state, sustain an action against the grantees.^ So also in regard to the loss of the use of a spring, by deepening the channel of such a stream, by legislative grant.^ 11. Nor is the owner of a dam, erected by legislative grant upon a navigable river, and which was afterwards cut off by a canal, granted by the same authority, entitled to recover damages.^^ s Spencer, C. J., in Bradshaw v. Rodgers, 20 Johns. 103; 2 Kent Com. 339, and note, and cases cited from the leading continental jurists. ^ Davidson v. Boston & Maine Railroad Co., 3 Cush. 91 ; Gould v. Hudson River Railroad Co., 12 Barb. 616; s. c. 2 Seld. 522. Nor has the state any such right in flats, where the tide ebbs and flows, as to require a railway com- pany to pay damages for the right of passage. Walker v. Boston & Maine Railroad Co., 3 Cush. 1 ; s. c. 1 Am. Railvv. Cas. 462. ' Zimmerman v. Union Canal Co., 1 Watts & S. 346. 8 Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71. 5 Commonwealth v. Ritcher, 1 Penn. 467. 10 Susquehannah Canal Co. v. Wright, 9 Watts & S. 9; Monongahela Nav- igation Co. V. Coons, 6 Watts & S. 101. [*231] § G4.] TAKING LANDS IN INVITUM. 237 ♦SECTION II. Taking Lands in Inv'itum. 1. Legislative grant requisite to compul- sory taking. 2. Compoiisation must be made. S. Consequential damages. Whether paid for. 4. E.\tent of liability for consequential damages. 5, 8, 9. (i rants of such powers strictly but reasonably construed. G. Limitation of the power to take lan II. L. Ca.s. 240; Xorlh Missouri Railroad Co. v. Lackland, L*.j .Mo. 515; Sanio V. Gott, 25 Mo. 5(0. ^- Flower r. London, Brighton, & South Coast Railway Co., 2 Drcwry & S. 330; s. c. 11 Jur. n. s. 40G. 13 Lund r. IMidland Railway Co., 34 Law J. Ch 27G. " Clarence Railway Co. v. Great North of Eni^iand Railway Co.. 2 Railw. Cas. 70;}. But the practice of courts of equity, in this respect, is by no means uniform. See v)Jra, § 205, et seq. VOL. i.-iG [*235] 242 EMINENT DOMAIN. [PART III. and confining corporations to the privileges plainly given to tliem in their charter, the courts of this country should be found en- larging * these privileges by implication." ^^ And in commenting upon the former decisions of that court upon this subject, the same learned judge here says, " The principle is recognized, that in grants by the public nothing passes by implication." ^^ And other cases are here referred to in the same court, in support of the same view.^" 9. But it is not to be inferred that the courts in this country, or in England, intend to disregard the general scope and purpose of the grant, or reasonable implications resulting from attending circumstances. But if doubts still remain, they are to be solved against the powers claimed.^^ 10. But where the right of the company to appropriate the land is perfected under the statute, they may enter upon it without any process for that purpose, and the resistance of the owner is un- lawful, and he may be restrained by injunction, but that is unnec- essary. The statute is a warrant to the company .^^ 11. But a grant to a railway to carry passengers and merchan- dise from A. to M., does not authorize them to transport mer- ^5 Charles River Bridge v. Warren Bridge, 11 Pet. 420. 16 United States v. Arredondo, 6 Pet. 691, 738. " Jackson v. Lampiure, 3 Pet. 280; Beaty v. Knowler, 4 Pet. 152, 168; Providence Bank v. Billings, 4 Pet. 514. And that court not only adheres to the same view still, but may have carried it in some instances to the extreme of excluding all imjilied powers. See also, upon this subject, Commonwealth V. Erie & Northeast Railroad Co., 27 Penn. St. 339; and Bradley u. Xew York & New Haven Railroad Co., 21 Conn. 294. 18 Perrine v. Chesapeake & Delaware Canal Co , 9 How. 172; Enfield Toll- Bridge V. Hartford & New Haven Railroad Co., 17 Conn. 454; Springfield v. Connecticut River Railroad Co., 4 Cush. 63. The following cases will be found to confirm the general views of the text : Tuckahoe Canal Co. v. Tuck- ahoe Railroad Co., 11 Leigh, 42; 2 Cruise Dig. Greenl. ed. 67, 68; Thompson V. New York & Harlem Railroad Co., 3 Sandf. Ch. 625; Oswego Falls Bridge Co. V. Fish, 1 Barb. Ch. 547; Moorhead v. Little Miami Railroad Co., 17 Ohio, 340 ; Stormfeltz v. Manor Turnpike Co., 13 Penn. St. 555 ; Toledo Bank V. Bond, 1 Ohio St. 636; Cincinnati College v. State, 19 Ohio, 110; Camden & Amboy Railroad Co. v. Briggs, 2 Zab. 623 ; Carr v. Georgia Railroad & Banking Co., 1 Kelly, 524; Macon v. Macon & Western Railroad Co., 7 Ga. 221; New London v. Brainard, 22 Conn. 552; Bradley v. New York & New Haven Railroad Co., 21 Conn. 294; Barrett v. Stockton & Darlington Railway Co., 2M. & G. 134. " Niagara Falls & Lake Ontario Railroad Co. v. Hotchkiss, 16 Barb. 270. [*236] § 04.] TAKING LANDS IN INVITCM. 243 chandisc from their depot in the city of M. about the city, or to other points, for the accommodation of customers.^ 12. There has been considerable discussion in the English * courts, within the last few years, in ref^ard to many recent statutes there, for the improvement of markets and streets in the metropolis or districts adjoining, through the agency of the municipal corporations. And while the courts there, and espe- cially the House of Lords, in one case,^^ adhere strenuously to tiic former rule, in regard to private corporations, — that they can only take lands compulsorily for the needful purposes of the works which they arc authorized by the legislature to construct ; on the other hand, they hold that it is competent and proper under parlia- mentary powers granted for that purpose, to allow municipal cor- porations to reimburse the expense of any improvements which they arc authorized to carry forward, in their streets and squares or markets, by taking the lands adjoining such improvements, at the price of their value before such improvements, and selling them at the advanced prices caused by such improvements. Ami it was held that the municipality having, before the act passed, contracted for the sale of such of the lands so to be taken as they should not require for the purpose of the public improvement, did not disqualify them from exercising the discretion reposed in them by the act, as to how much land they would take. This rule of law in regard to the proper mode of reimbursing the expense of great public improvements is not very different from that which has been extensively in use in America under the name of better- ment acts, whereby the expense is assessed upon the adjoining property-owners, upon some scheme of equalization, presumptively apportioning the loss and benefit equitably.^ *> Macon v. Macon & Western Railroad Co.. 7 Ga. 221. " Galloway v. London, 12 Jur. n. s. 747; s. c. Law Ilep. 1 II. L. 34. " Infra, § 235, and cases cited in notes 22, 23. [♦237] 244 EMINENT DOMAIN. [part hi. SECTION III. Conditions Precedent. 1. Company must comply with condi- tions precedent. 2. Compliance must be alleged in peti- tion. 3. Payment as a condition precedent to vesting of title in company. 4. Filing the location in the land office, notice to subsequent purchasers. 5. Damages assessed and confirmed by the court, the owner is entitled to execution. G. Company in possession, equity will enforce payment and enjoin use in default thereof. 7. Subscriptions to stock payable in land on condition precedent, condition waived by conveyance, &c. § Qo. 1. It has been held that a railway company must comply with all the conditions in its charter, or the general laws of the * state, requisite to enable it to go forward in its construction, before it acquires any right to take land by compulsion, (a) In England one of these conditions in the general law is, that stock, to the amount of the estimated cost of the entire work, shall bo subscribed. And wliere the charter, or the general laws of the state, gave the right to take land for the roadway only upon the legislature having approved of the route and termini of the line, it was held the company could not proceed to condemn lands for that purpose until this approval was made.^ 2. And where the act of the legislature, under which a railway was empowered to take lands, required the company to apply to the owner, and endeavor to agree with him as to the compensa- tion, unless the owner be absent or legally incapacitated, they have no right to petition for viewers until tliat is done. The petition should allege tlio fact that they cannot agree with the owner.^ 1 Gillinwater v. Missi.ssippi & Atlantic Railroad Co., 13 111. 1. 2 Reitenbaugh v. Chester Valley Railroad Co., 21 Penn. St. 100. But where the coinpaify has the right to lay its road, not exceeding six rods in width, and has fixed the centre line of the same, it may apply for the appoint- ment of appraisers, and determine the width of the road, any time before the appraisal. Williams v. Hartford & New Haven Railroad Co., 13 Conn. 110. But slight, if indeed any, evidence of this failure to agree with the land- (n) Tims, where the statute requires affected land-holders, it cannot be the projectors to file a map and pro- dispensed with. Ex parte New York file, and give notice thereof to all & Boston Railway Co., 62 Barb. 85. [*238j § G5.] CONDITIONS PRECEDKNT. 245 The ricrlit of such companies to take land is held in some states to depend upon the legal sulliciency and validity of the eertilieate and public record of organization ; and it was held the company must tjhow these prerequisites to be strictly in coniormity with the refiuircments of the law.^ 3. Where the charter of a railway company provides that tlic title of land condemned for the use of the company sliall vest in the company, ujton the payment of the amount of the valuation, no title vests until such payment,^ (^) In a late casc,^ the law upon * this subject is thus summed up: Where the charter of the company provides, that after the appraisal of land for their use, " upon the i)ayment of the same,'^ or deposit (as the case may be), the company shall be deemed to be seised and possessed of all such lands, " they must pay or deposit the money before any such right accrues." — "The payment or deposit of the money awarded is a condition precedent to the right of the company to enter upon the land for the purposes of construction; and with- out compliance with it they may be enjoined by a court of owner is required, where the chiimant appears and makes no objection on that ground. Douglity v. Somerville & Easton Railroad Co., 1 Zab. 412. And tlie petition may be amended where this averment is omitted. Pennsylvania llailroad Co. v. Porter, 29 Penn. St. 1G5. 3 Atlantic & Ohio Railroad Co. v. Sullivant, 5 Ohio St. 276. * Rallitnore & Susquehanna Railroad Co. i\ Nesbit, lU How. 395. See, also, Conipton r. Susquehanna Railroad Co., 3 Bland, 38(J, 391; Van A\'ickle v. Piaihoad Co., 2 (Jreen, 1G2; Stacy v. Vermont Central Railroad Co., 27 Vt. 39; Levering r. Railroad Co., 8 Watts & S. 459. And on payment of the compensation a.s.sessed by commissioners, and taking pos.se.ssion afterward, the title of the company is perfected, as against the party to the proceeilings. Bath River Navigation Co. v. Willis, 2 Raihv. Cas. 7. ' Stacey v. Vermont Central Railroad Co., 27 Vt. 39. {h) Payment is a condition prece- 438. On payment, title passes. St. dent to title or use. Lee r. Northwest- Louis & Southeastern Railway Co. r. ern Union Railway Co., 33 Wis. 222; Teters, 68 111. 144; Chicago & Iowa Provolt r. Chicago, Rock Island, & Railroad Co. r. Hopkins, 90 111. 31(5. Pacific Railroad Co , 57 ^lo. 250 ; But the owner may waive his right to Colgan r. Allegheny Valley Railroad prepayment. New Orleans & Selma Co., 3 Pittsb. 394; Chambers v. Cin- Railroad Co. v. Jones, 08 Ala. 48. cinnati Railroad Co., 10 Am. & Eng. In general, as to when title vests in Railw. Cas. 376. And mortgage of the company, see In re Rliinebeck & road and sale on foreclosure will make Connecticut Railro.ad Co., 8 Hun, 34; no difference. Kendall v. Missisquoi s. c. affirmed, 67 N. Y. 242. & Clyde River Railroad Co., 55 Vt. [•230] 246 EMINENT DOMAIN. [PART III. equity, or prosecuted in trespass at law, for so doing. The right of the land-owner to the damages awarded is a correlative right to that of the company to the land. If the company has no vested right to the land, the land-owner has none to the price to be paid." 4. And where the charter contained the usual power to take land, it was held, that after laying out their road and filing the location in the land-office, the company had acquired a right of entry which subsequent purchasers were bound to respect.^ 5. And where the road has been laid and the damages assessed and confirmed by the court, the owner of the land is entitled to execution, although the company have not taken possession of the land, and may desire to change the route." («?) 6. But where the company enters into the possession of tlie land, and constructs its road without having paid the whole of the damages assessed therefor, a court of equity will enforce the payment by an order for such payment within a time named, and in default will restrain the company by injunction from using the land nntil the price is paid.^ In one case it was held, that where the railway is surveyed and located and the land-owner consents to the company entering and building their road before the dam- ages are ascertained, under an agreement that this shall be done thereafter, and the road is thereupon constructed, the title to the land passes, and the owner retains no lien thereon for his damages, but must look for payment to the party contracting.^ But in an English case,^*^ it was held that the owner of lands * taken possession of by a railway company, either under statu- tory power or by agreement, has a lien thereon for the purchase- * Davis V. East Tennessee & Georgia Railroad Co., 1 Sneed, 94. ' Neal V. Pittsburgh & Connellsville Railroad Co., 31 Penn. St. 19. 8 Cozens v. Bognor Railway Co., Law Hep. 1 Ch. Ap. 591; s. c. 12 Jur. N. s. 738. 8 Knapp V. McAuley, 39 Vt. 275. But in Vermont the vendor's lien on real estate for the price is expressly repealed by act of the legislature. 1" Walker v. Ware, Iladham, & Buutingford Railway Co., Law Rep. 1 Eq. 195. (c) But on trial of an appeal exe- Penn. Stat., Harrisburg & Potomac cution may not be awarded by the Railroad Co. v. Peffer, 81 Penn. St. circuit court. St. Louis, Lawrence, 295; Boyce v. Northern Central Rail- & Denver Railroad Co. v. Wilder, 17 way Co., 1 Pearson, 113. Kan. 239. See as to stay under the [*240] §6t>.] PRELIMINARY SURVEYS. 247 money, and also for the damages to the adjoining land, if not the subject of a special agreement inconsistent with the cuntiiiuance of such lien. Of this lien he is not deprived by a deposit and bond under the statute, or by accepting a deposit, less than the whole amount due him, and a court of equity will enforce tliis lien, although the railway has been opened for public use. 7. And where a subscription of land is made to a railway com- pany, upon some condition precedent to be performed by the company, such condition is waived by conveying the land and accepting certificates of stock. But if such conveyance is induced bv false representations, the company may be compelled to per- form it, or by tendering a return of the certificates the entire con- veyance may be set aside, even after the company have conveyed tlie land to others conusant of the facts at the time of such cou- vcyancc.^ SECTION IV. Preliminary Surveys. 4. Company liable for materials. 5. Right to take materials. Liability therefor, how ascertained. 6. 7. Liability of company for entering before location. 1. Preliminary survey may be made with- out compensation. 2. Compensation may be required by stat- ute, but company- not trespasser. 3. Company may make temporary entry, in England, for wiiat purposes. § GG. 1. It is settled that the legislature may authorize railway companies to enter upon lands for the purpose of preliminary surveys, without making compensation therefor, doing as littlo damage as possible, and selecting such season of the year as will do least damage to the growing crops. The proper rule to bo observed, in this respect, being such as a prudent owner of tho land would be likely to adoi)t, in making such surveys for hi.s own advantage.^ 2. In the English statutes, and in many of the sjiecial charters and general railway acts in the American states, the company are 1 Cushman r. Smith, 31 ^le. 217; Polly v. Sarato-a & Washington Rail- road Co., 9 Barb. 449; Bloodgood r. Mohawk & Hudson Hailroa.i Co., 14 Wend. 51; s. c. 18 Wend. 9 ; s. c. 1 Redf. Am. Railw. C:is. 20^); Mercery. McWilliams, Wright. 132. But in some states the p.arty is m.ide liable by statute for damages for temporary occupation. [*240] 248 EMINENT DOMAIN. [PART III. bound to make compensation for such temporary use of the land, * where they do not ultimately take the land. But in such case, where the statute authorizes the entry upon the land, the com- pany are not to be treated as trespassers, and even where the statute provides for no compensation, it is not regarded as taking private property for public use, within the provisions of the American state and United States constitutions. 3. Under the English statute the notice to use lands for tempo- rary purposes should specify the particular purpose for whicli the lands are required.^ By the English statute,^ the company may make a temporary entry upon land for the following purposes : (1) For the purpose of taking earth, or soil, by side cuttings. (2) For the purpose of depositing soil. (3) For the purpose of obtaining materials for the construction or repair of the railway. (4) For the purpose of forming roads to, from, or by the side of the railway.^ (5) By section 42, if the owner of such lands as the company give notice of temporary occupation, elect to sell to the company and give them notice accordingly, they are com- pellable to buy, and in all other cases to make compensation for all injury to the same. 4. It has been held, in regard to the right of railway companies to take materials from lands adjoining their survey to build their road,^ that the damages need not be appraised till after the mate- rials were taken; that the commissioners had authority to assess damages for every act which the company might lawfully do under their charter ; that the company had the right to take such materials, in invitujn, and to use other land, without their survey, 2 Poyuder v. Great Northern Railway Co., 16 Sim. 3; s. c. 5 Railw. Cas. 196. 8 Statute 8 & 9 Vict. c. 20, § 32. < In Webb v. :\Ianchester & Leeds Railway Co., 4 Myl. & C. 116; s. c. 1 Railw. Cas. 576, 599, Lord Chancellor Cottenham, is reported to liave said: " The powers given to these companies are so large, and frequently so injuri- ous to the interests of individuals, that I think it is the duty of every court to keep them most strictly within those powers, and if there is any reasonable doubt as to the extent of their powers, they must go elsewhere and get en- larged powers, but they will get none from me, by way of construction of the act." ^ Vermont Central Railroad Co. v. Baxter, 22 Vt. 365. See also Bliss v. Hosmer, 15 Ohio, 44; Lyon v. Jerome, 15 Wend. 569; Wheelock r. Young, 4 Wend. 647. Also Lesher v. Wabash Navigation Co., 14 111. 85. See iti/ra, §68. [*241] § 66.] PRELIMINARY SURVEYS. 249 for * preparing stone for their use; that the same rij^ht cquullv resided in the eontractors to huild the road ; and that thu corjjora- tion is Hiil)le to the hmd-owner for niat(_'rials so taken by the contraetors, notwithstanding any stipuhitions in the eonlract of letting exeni})ting them from sueh liability, as betuctii themselves and the contractors. 5. It has sometimes been made a question, in thi.s country, how far the legislature could confer upon railway companies the power to take materials, without the limits of their survey, in invitumJ' And in a somewhat recent case,^ where the charter of the com- pany authorized them to take land, so much as might be neces- sary for their use, and also to take for certain purposes earth, gravel, stone, timber, or other materials, on or from the land so taken, it was held the company were not thereby empowered to take materials from land not taken. G. But a railway company, who enter upon land to construct their road before the time for filing the location of their line, are liable as trespassers, if the location when filed does not cover the land so entered upon." 7. And the omis is upon the company to justify by showing that the land is covered by the authorized location.' The hjca- tion filed by the company is conclusive evidence of the land taken and cannot be controlled by extrinsic evidence, though a plan or maj), made a part of the description of the location, and filed with the written location, may be referred to for explana- tion, but not to modify or control the written location.' "> Parsons v. Howe, 41 Me. 21 S. And under the Enj^lish statute it has been lield that tlie company is not justified in taking conipulsorily huid required, not for the location of any portion of tiie works, but to supply eartli or other material to be used on other land. Bentinck v. Norfolk Estuary Co., 8 l)e G. M. & G. 71 1. "> Ilazen v. Boston & Maine Railroad Co., 2 Gray, 574; Stone v. Cambridge, C Cush. 270; Hayes v. Shackford, 3 N. H. 10; Lewiston r. County Commis- sioners, 30 Me. 19; Little v. Newport, Abergavenny. & Hereford ll4iilway Co., 12 C. 15. 752; s. c. U Eiig. L. & Eq. 309; Springfield v. Connecticut Uiver Eaihoad Co., 4 Cush. 63, G9, 70. 250 EMINENT DOMAIN. [part III. ^SECTION V. Power to take temporary Possession of Public and Private Ways. 1. Company in England may take pos- session of public or private ways, in building its works. Compensa- tion. 2. Remedy for obstruction under tbo statutes, unless damage is special. 3. Person excavating liiglivvay in building sewer responsible only for restora- tion. § 67. 1. Under the English statute,^ the company have the power, upon notice, to take temporary possession of private roads; and by other sections, they may take possession of, cut through, and interrupt public roads. But in all such cases the damage is to be compensated, and the road restored, when practicable, and if not, a substituted one made. 2. If a private way be. obstructed, the remedy is to sue for pen- alty under the statute, or to bring an action under the statute for special damage. But it is said an action upon the case for the obstruction cannot be maintained, except in the case of special damage, which is expressly saved by the statute.^ 3. A party who excavates a public highway for the purpose of constructing a sewer, by contract with the public authorities, and who properly restores the same at the termination of his work, is not further responsible. But the parish must look after the sub- sequent repairs, whether rendered necessary by the natural subsi- dence of the earth, by reason of the former excavation, or by ordinary wear and tear.^ 1 Statute 8 & 9 Vict. c. 20, § 30. 2 Watkins v. Great Northern Railway Co., 16 Q. B. 961 ; s. c. 6 Eng. L. & Eq. 179. But in llangeley v. Midland Railway Co., Law Rep. 3 Ch. Ap. 306, it is said the company has no power under the statute to divert a public foot-path, so as to place it on land of which it had not acquired the title. * Ilyams v. Webster, Law Rep. 2 Q. B. 201. [*243] § G8.] LAND FOR ORDINARY AND EXTRAORDINARY USES. 2.j1 ♦SECTION VI. Land for Ordinary and Extraordinary Uaes. 1, 2. Uses for which land may be taken. I 3 Implied right of company in adjoining Necessary uses. I state forming junction at state line. § G8. 1. By the English statutes, railway companies may not only purchase land for the ))urpuse of the track, but aLso fur all such extraordinary uses as Avill conduce to the successful prose- cution of their business.^ (a) This includes the site of stations, 1 Statute 8 & 9 Vict. c. 20, § 45. This section is operative to enable the company to take land for extraordinary purposes, beyond the line of deviation, only by consent of the owners. But the justices have no jurisdiction, under the Railway Clauses Consolidation Act, to determine when accommodation works are necessary, but only what works are necessary, assuming that some such works are to be made. Regina /;. Waterford Railway Co , 2 Ir. Law, 580. See infra, § 93 et seq. In Chicago, Burlington, & Quincy Railroad Co. V. Wilson, 17 111. 123, it was held, that a grant to a railway company to con- struct a road, with such appendages as might be deemed necessary for the con- venient use thereof, authorized the taking of land for workshoi">s. And (his power is not exhausted by the apparent completion of the road. If an increase of business shall require other appendages, or more room for tracks, it may in like manner be taken, toties quolies. But the land-owner may traverse the riglit of the company to take the land, and liave it determined by the proper tribu- nal. South Carolina Railroad Co. v. Blake, 9 Rich. 228. So also the company may take land for erecting a paint-shop and lumber and timber-sheds for the use of the company. Low v. Galena & Chicago Union Railroad Co., 18 111. 324. And the company may take all lands requisite for stations, for the stor- ing and keeping of cars and engines, for the receipt and delivery of freigiit and for its safe storage. And it is no answer to this claim that tliere are other lands suitable for those uses which the company might purchase, or that the company already has a limited interest in the lands proposed to be taken. In re New York & Harlem Railroad Co., 40 N. Y. 540. (a) New York Central & Hudson determine the measure of its wants and River Railroad Co. v. Metropolitan to select locations. New York Central Gas Light Co., 5 Hun, 201 ; s. c. 03 & Hudson River Railroad Co. v. N. Y. 320; Cother v. Midland Rail- I^Ietropolitan Gas-Light Co.. 5 Hun, way Co., 2 Phillips, 409. Under the 201; s. c. 03 N. Y. 320. As to the New York statute the company has in taking of additional ground nt a junc- a considerable degree the power to tion, to give more track room. &c., see [-44] 252 EMINENT DOMAIN. [PART III. yards, wharves, places for the accommodation of passengers, and the deposit of freight, both live and dead, and for the erection of Avcigliing-machines, toll-houses, offices, warehouses, and other buildings and conveniences; land for ways to the railway while in the course of construction, and to stations always. But a rail- way company in England cannot acquire the fee of land for Uie mere purpose of excavating soil in order to construct an em))ank- mcnt.2 (5) And it has been decided that a railway company cannot take land for any subsidiary purpose, even where the direct act of the company comes within the powers granted them.^ As where they proposed *to alter the course of the road, in such a manner as to accommodate an adjoining land-owner, in consideration of which he proposed to pay a portion of the expense of the altera- tion, the company were enjoined from making the alteration, although coming clearly within their powers if done solely for their own accommodation. The ground of the injunction was, that the alteration required the removal of the house of A., and the change was made partly for the accommodation of B., a purpose not within the powers granted the railway company. But it is incident to the grant of a railway, that it may lay down as many sidings and other collateral tracks as are fairly requisite to ac- commodate its business.'^ But this will not allow the company to build a branch road on a different route from that embraced in its charter."* 2. The same may undoubtedly be done in this country, whether any express provision to that effect is contained in the charter of the company, or the general statutes of the state, or not ; such 2 Eversfield v. Midsussex Railway Co., 1 Gif. 151; s. c affirmed, 3 De G. & J. 286. 8 Dodd V. Salisbury & Yeovil Railway Co., 1 Gif. 158; s. c on appeal, 5 Jur. N. s. 782. * Bangor, Oldtown, & Milford Railroad Co. v. Smith, 47 Me. 31. A grant to cross a highway will not justify running parallel to and upon it. lb. Union Railroad Transfer & Stockyai'd ercise of the right of eminent domain Co. V. Moore, 80 Ind. 458. And as for the procurement of gravel for bal- to ground for workshops, see Southern last. New York & Canada Railroad Pacific Railroad Co. v. Raymond, 53 Co. v. Gunnison, 3 Thomp. & C. 032. Cal. 223. But see Valley Railway Co. i^. Bohm, (b) Not can it in this country ac- 34 Ohio St. 114. quire land outside its way by the ex- [*245] § 08.] LAND FOIi ORDINARY AND EXTRAORDINARY USES. 2.03 power being necessarily imi»lic(l, as indispensable to tlic aoconi- plishment of the general purjjoses of the corjjoration, and the design of the legislative grant, (e) 3. And the same implied power is to be extended to a railway corporation, in a neighboring state, with Avhidi, by express statute, railways of the state where the lands lie have the rigiit to unite at the line of the state,^ or to extend their road into 6 State V. Boston, Concord, & Montreal Railroad Co., 2o Vt. 43:); s. c. 1 Rc'df. Am. Raihv. Cas. 81. In this case a railway company in New llami>- sliire had constructed a road to the line of Vermont (where by statute of Ver- (c) To condemn property for the to what is deemed necessary under the use of a railway, it is necessary that statutes of Maine, .see .SpolTord i'. tlie use should be public. Trac}' v. Bucksport & Bangor Railroad Co., CG Elizabethtown Railroad Co., 80 Ky. Me. 2G. As to the width of the right 259; Kdgewood Railroad Co. 's Appeal, of way, whether one hundred feet or 70 Peun. St. 2.">7; Iloggatt v. Viclcs- more, .see Chicago, Rock Island, & Pu- burg, Sineveport, & Pacific Railroad cific Railroad Co. v. People, 4 Brad. Co., oi La. An. G24. Land cannot be Ap. 4G8; Wisconsin Central Railroail taken for a purely private industry, Co. r. Cornell L'niversity, 52 Wis. ;j.j7; not, e. g.. to build a flume to carry off Johnston i-. Chicago, Milwaukee, & St. the tailings from a mine. Consoli- Paul Railway Co., 58 Iowa, 537. Nor dated Channel Co. r. Central Pacific does the law require the company to Railroad Co., 51 Cal. 209. If the use condemn all the land it may need at be falsely represented as public and once. It may acquire additional land the court .so induced to condemn, the as it is needed for its business. Cen- state may interpose by its proper law tral Branch Union Pacific Railroad officer to correct the abuse. People v. Co. v. Atchison, Topeka, & Santa Fe Pittsburg Railroad Co., 53 Cal. 094. Railroad Co., 20 Kan. CGO; Dietrichs The riglit is limited to such property v. Lincoln & Northwestern Railroad n.« is necessary, /n ?-c New York Cen- Co., supra ; Fisher v. Chicago & tral & Hudson River Railroad Co., 77 Springfield Railroad Co., 104 111. N. Y. 248; Chicago & Western Indi- 323. As to what land may be so taken, ana Railroad Co. v. Dunbar, 100 111. see State r. United New Jersey Rail- 11(»; Tracy r. Elizabethtown Railroad road & Canal Co., 43 N. J. Law. 110; Co., 80 Ky. 259. But see Sadd v. Curtis v. St. Paul, Stillwater, & Tay- ^laldon, Witham, & Braintree Railway lor's Falls Raihoad Co., 20 Minn. 28. Co.. W. II. & G. 143. Prima facie Land for widening roaiiway. Bock r. the decision of the general manager of United New .Jensey Railroad & Canal a railroad is a proper measure of the Co., 39 N. J. Law, 45. Land for side- necessity. Dietrichs v. Lincoln & tracks. Getz's Appeal, 3 Am. & Kng. Northwestern Railroad Co., 13 Neb. Railw. Cas. 180; Fi.-lier v. Chicago & 301. And see Smith v. Chicago & Springfield Railroad Co., 104 111. 323. Western Indiana Railroad Co., 105 111. Land for wharves on the Hud.son. In 511 ; Stringham r. Oshkosh & Mi.ssis- re New York Central & Hudson River sippi Railroad Co., 33 Wis. 471. As Railroad Co., 77 N. Y. 24 S. [*245] 254 EMINENT DOMAIN. [PART III. this state.^ * And for the purpose of exercising the rights con- ferred by their act upon the company, the contractor for the execu- tion of railway works must be deemed an agent of the company.'^ mont, two other roads were permitted to unite with any New Hampshire road), and had there purchased land, adjoining the terminus of its road, on the wes- tern bank of the Connecticut River, the bridge being all in New Hampshire except the western abutment, which was on Vermont soil. The company had no express grant from the legislature of Vermont. A controversy arose between the New Hampshire company and the Vermont companies in regard to the terms of junction, and a quo warranto was prosecuted on behalf of the state, to determine the right of tlie New Hampshire company to purchase and hold lands in Vermont. It was attempted to maintain, on the part of the prosecu- tion, that there existed a right in any state to confiscate or escheat lands held by a foreign corporation. But the court repudiated the proposition, and held that the New Hampshire company, by the grant from Vermont to the Vermont roads of the right to form a junction, at the state line, had by implication ac- quired permission to purchase and hold so much land as was necessary for the accommodation of its business, present and prospective, at that point, whether any junction had yet been arranged or not; and that fifteen acres was not an unreasonable amount of land for such purposes. The court did not hold that the New Hampshire company had any right to take land by compulsory proceedings in Vermont, or that its purchase would deter the Vermont roads from taking by statutory compulsion from them such portions of the same land as they might require for their purposes. See also Nashville Railroad Co. v. Cowardin, 11 Humph. 348. In New Hampshire, Crosby v. Hanover, 20 Law Rep. 646, it was held that the franchise of a toll-bridge across the Connecticut River might be taken for a free highway, on compensation being made to the proprietors ; and that it made no difference that one of the abutments of the bridge was in Vermont, and consequently could not be taken by any proceedings in New Hampshire, s. c. 36 N. H. 404. 8 New York & Erie Railway Co. v. Young, 33 Penn. St. 175. ' Semple v. London & Birmingham Railway Co., 9 Sim. 209; s. c. 1 Railw. Cas. 480; Vermont Central Railroad Co. v. Baxter, 22 Vt. 365; suprUf § 66; Lesher v. Wabash Navigation Co., 14 111. 85. [*246J §G9.] •TITLE ACQUIRED BY COMPANY. 256 SECTION VII. Title acquired by Company. 1. 7, 8. Company acquires only right of way. Kiglit to licrbage and minerals. 2. Can take notliing from soil except fot construction. 3. Deed in fee may convey only right of way, company being incapable of iiolding fee. 4. Wlietiier company has an estate sub- ject to execution. 5. Whether company having right to cross way of another, bound to purchase. 6. Conflicting rights in different com- panies. 9-11. Fee in, and right of company to use, streets of u city; 12, 13. Land reverts to tiie owner on dis- continuance of public use. 14. True rule stated. 15. Title of company depending on condi- tions, conditions must be performed. IG. Further assurance of title. 17. Condemnation cannot be impeached. 18. Fee acquired by public, no reverter on discontinuance of public use. § G9. 1. Questions have sometimes arisen in regard to the pre- cise title acquired by a railway company in lands purchased by them, where the conveyance is a fee-simple. It is certain, in this country, upon general principles, that a railway company, by virtue of their * compulsory powers, in taking lands, could acquire no ab.solute fee-simple, but only the right to use the land for their purposes. And it is very questionable whether a railway, in such case, is entitled to the herbage growing upon the land, or to culti- vate the same, or to dig for stone or minerals in the land, beyond what is necessary for their purposes in construction. 2. In England, the statutes ^ (a) give all such minerals to the 1 Statute 8 & 9 Vict. c. 20, § 17. In Connecticut & Passumpsic Rivers Rail- road Co. II. Ilolton, ;}2 Vt. 4;}, it was decided, that the land-owner, after liis land has been legally appropriated for the track of a railway, has no right to enter on ('() See Leavenworth, Topeka, & Southwestern Railway Co. v. Paul, 28 Kan. 816, as to the right to herb- age. In In re Hartford & Connecti- cut Western Railroad Co., 65 How. Pr. 133, it was held that the company acquired only the right to use the land for the purposes of its incorporation, and hence need not pay for minerals under the surface. The title acquired under statute is sufficient in defence of an ejectment against the company. Great Western Railway Co. v. Lutz, 02 U. C, C. P. IGG. In Mississippi River Bridge Co. r. Ring, 58 Mo. 491, it was lield that on condemnation of land the buildings thereon belonged to the company, and that trespass would lie for their re- moval. So of trees, which may be useful in the construction of the road. Taylor v. New York & Long Branch Railroad Co., 3S N. J. Law. 28. [*247] 256 EMINENT DOMAIN. [PART III, former owner of the land, except such as are necessary in con- struction, unless the same shall have been expressly purchased. And in this country, no doubt, the same construction would be adopted, in regard to all lands taken by compulsory proceeding.^ * 3. But it admits of some question, we think, what is the pre- cise effect of a deed, in fee-simple, to a railway company. It would seem, upon general principles, that the grantor should ))e estopped from claiming any interest in the land, after the execu- tion of his deed. But it seems to be agreed, in all the books, that, to the efficacy of a deed of land, it is requisite that the grantee be capable of taking the estate. And if the grantee be an alien, or a corporation incapable of holding such estate, the deed is inopera- tive. Hence, in some of the cases, it seems to be a just inference from the reasoning of the court, that a railway, by a deed in fee- it or use it for any purpose -which in the least endangers or embarrasses its use for any purpose for which the railway has appropriated it. No right, e. g., to en- ter with teams to remove turf, the effect of wliich would be to enhance the dan- ger of cattle getting on the track, and to increase the dust l)y the passage of the cars. Nor can the owner cross the track at any point other than that estab- lished by the taking of the land; nor can he build a farm-crossing, unless es- tablished by law. In Troy & Boston Railroad Co. v. Potter, 42 Vt. 26.3, it was decided that the owner of the fee of land condemned for the use of a railway has no right to enter on the land while in the use of the railway, and take therefrom the herbage and other products of the soil. And the company may maintain trespass for all unlawful entries and acts on the land appropriated to its u.se when such acts interfere with their exclusive possession, s. p. in North Pennsylvania Railroad Co. v. Rehman, 5 Am. Law Reg. x. s. 49. 2 Baker v. John.son, 2 Hill, N. Y. 342. It was held here, that a contractor to build a canal, who stipulated to find all the materials, with the privilege of using all the earth obtained by excavation, might also use the stone obtained by excavating the bed of the canal across plaintiif 's land. Timber standing on land taken for a railway belongs to the owner of the land, except so far as necessary for the construction and repair of the road. Preston v. Dubuque & Pacific Railroad Co., 11 Iowa, 15. Earth and minerals above the grade of the road may be used by the company, but those below belong to the owner of the land. Evans v. Haefner, 29 Alo. 141. The condemnation of land for the construction of a railway justifies the entry and necessary excavation of the soil by the company and its servants. Green v. Boody, 21 Ind. 10. But stone excavated in the construction, and not used on any portion of the line, belongs to the owner of the land. Chapin V. Sullivan Railroad Co., 39 N. H. 564. But it seems from this, and from the general practice in the construction of railways, that earth or any other material excavated on one portion of the line may be used on any other por- tion, if required. [*248] § G9.] TITLE ACQUIRED BY COMPANY. 2ol simple, acquires only a right of \ya.y,^ that being all which such corjioratiun is capable of taking. 4. It has been held in some of the states, that the lands of a railway company are subject to sale upon execution against them, or may be assigned by them.* So, too, they may purchase and » Dean v. Sullivan Railroad Co., 2 Fost. X. II. olO; United States r. Harris, 1 Sumner, 21. It is held in some cases, that a grant to a railway, before its iucorporation, is valid, not being the conveyance of a fee, and, to its operation and effect, not requiring the existence of a gi'antee, at the time of the convey- ance. Rathbone v. Tioga Navigation Co., 2 Watts & S. 74. But it seems now to be considered that railway companies may acquire the absolute fee in land by purchase and deed in fee-simple, and the title will remain in the com- pany after it has changed the location of its road, and ceased to use it for cor- porate purposes. Page v. Heineberg, 40 Vt. 81. * Arthur v. Commercial & Railroad Rank, 9 Sm. & M. 391. But this right to levy on the lands of a railway company extends to such lands only, however acquired, as are not requisite to the full exercise and enjoyment of tiie corporate franchise. Plymouth Railroad Co. c Col well, 39 Penn. St. 337. And a canal basin is not such a legitimate incident of a railway franchise as to be protected from levy, where there is no authorized canal connection, lb. And town lots held by a railway company are not to be regarded as an incident of the f lanchise, so as to pass by a mortgage of the road " with its corporate privileges and appur- tenances," unless directly appurtenant to the road and indispensably necessary to the exercise of its franchises. Shamokin Valley Railroad Co. r. Livermore, 47 Penn. St. 405. It has been held, that railway bonds were liable to levy on ex- ecution, but that seems questionable, lletherington i\ Hayden, 11 Iowa, 33-5. In Hill V. Western Vermont Railroad Co., 32 Vt. 68, the company, before the road wa.s laid out or surveyed, procured a bond from one for such of his lands as should be required for the road. The charter provided that the directors might cause a survey, and fix the line, and that the company might enter and take such lands as were necessary for the road and accommoda- tions. The survey of the road, made by order of the directors, designated certiiin land belonging to such person as depot grounds; and the company paid him for it, but never took a conveyance. The plaintiff levied on a portion of land as the property of the company, and brought ejectment for possession. The referee found that a part of the land embraced in the levy was not neces- sary to the company, and would not become so. It was held, that the com- pany was not entitled to conveyance of any gi-eater quantity than it required for depot accommodations; that under the charter the company could not ac- quire any more land, or any greater estate therein, than was really requisite; that the estate requisite was a mere easement, and therefore, not subject to levy; that when taken for such puqioses, the rule was the same, whether the land was taken compulsorily or under an agreement; that luider the charter the directors had power to lay out the road and stations as they saw fit ; and that, so long as they acted in good faith, their decision as to the quantity of land required for depot accommodations would be conclusive. VOL. I. -17 [*248J 258 EMINENT DOMAIN. [PAIIT III. * liold land for tlic procurement of materials, or for the economical construction of the road.^(/>) In an English case/^ it was held that the railway could not use land, thus conveyed, for any other purpose than that cxjjresscd in the acts of parliament, by virtue of which the company exercised their functions. 5. It has been held that, where one railway has power in their act to cross another railway, there being no express permission in the act for one company to take land, or for the other company to sell, that the first company could not be compelled, l^y mandamus, to purchase any of the land upon which the other road was con- structed, their only claim being one for damages.'^ So, also, the right to make a junction with a pre-existing railway does not im- ply the power to take the title to any of the lands of such railway, unless that is indispensable to effect the junction, but only to enter upon such lands, by way of easement, for the purpose of effecting the junction.^ 6. But where the legislature confer the power upon two railway * companies to purchase compulsorily the same piece of land, and one company has taken the land and constructed their road upon it, equity will enjoin the other company from proceeding to take it compulsorily for their use, until the conflicting rights of the companies are determined by a trial at law.^ 7. The general course of decisions in this country coincides v/ith the English common-law rule, in regard to the title acquired by the public, by the exercise of the right of eminent domain, that is, that no more of the title is divested from the former owner than what is necessary for the public use. The owner may still maintain trespass for any injury to the freehold by a stranger.^® 5 Overmyer v. "Williams, 13 Ohio, 2G. 6 IJostock v. North Staffordshire Railway Co., 3 Smale & G. 283. ' Regina v. South Wales Railway Co , 13 Q. B. 988 ; s. c. 6 Railw. Cas. 489. 8 Oxford, Worcester, & Wolverhampton Railway Co. v. South Staffordshire Railway Co., 1 Drewry, 255; s. c. 19 Eng. L. & Eq. 131. 3 Manchester, Sheffield, & Lincolnshire Railway Co. v. Great Northern Rail- way Co., 9 Hare, 284; s. c. 12 En?. L. & Eq. 21G. 10 Dovaston v. Payne, 2 II. I>1. 527; Rust f. Low, 6 Ma.ss. 90; Jackson v. Rutland & Burlington Railroad Co., 25 Vt. 151; s. c. 1 Redf. Am. Railw. Cas. 302; 2 Rol. Abr. 560, pi. 1. (Jj) A company may not take the Eversfield y. Mid-Sussex Railway Co., fee merely for the purpose of procur- 1 Gif. 153. ing soil to make an embankment. [*249, *250] § G9.] TITLH ACQUIRKI) RY COMPANY. 259 8. And ill regard to railways, in j)arlieular, it lias been repeat- edly decided in the different states, that they take only an ease- ment in laud condemned for their iisc.^^ In an important case ^^ in the Supreme Court of the United States, involvinir questions of title in reirard to the streets in the city of Pittsburgh, Mr. Justice McLean thus sums up the general doctrine : — " I>y the common law, the fee in the soil remains in the original owner where a public road is established over it ; l)ut the use of the road is in the public. The owner parts with this use only ; for * if the road shall be vacated by the public he resumes the ex- clusive possession of the ground ; and while it is used as a high- way he is entitled to the timber and grass which may grow upon the surface, and to all minerals which may be found below it. He may bring an action of trespass against any one who obstructs the road." 0. But a query is expressed here, as in many other cases, whether this rule applies to the streets and thoroughfares of cities. In a case in one of the British provinces on this continent. Nova Scotia, it is said to have been held, by a divided court, after long debate and deliberation, that the title to land co\ered by a highway or street, vested absolutely in the crown, and that the owner had no reversionary interest.^^ 10. S(Mne of the American cases seem to intimate a different rule from that which generally prevails in reference to highways, 1' Ilailroad Co. v. Davis. 2 Dfv. & Ijat. 457; Dean v. Sullivan Railroad Co., 2 Fost. N. U. ;]1G; Ellicottville & Great Valley Plank Road v. Buffalo ii Titts- burg Railroad Co., 20 Uarb. 044; Weston v. Fester, 7 Met. 297. hi a case in Ohio, where the subject seems to have been examined with care, it is laid down, that only such interest as will answer the public wants can be taken ; and that it can be held only so long as it is nsed by the public, and cannot be diverted to any other purpose. Gie.sy v. Cincinnati, Wilmington, & Zanesville Railroad Co., 4 Ohio St. 308. See also Hooker i\ Utica & Miiiden Turnpike Co., 12 Wend. 371; People r. White, 11 I5arb. 20; HIake c. Rich. 34 N. II. 2S2. The title of the land-owner is thus defined in this last c;ise: 'J'he exclusive right of prop- erty in the land, in the trees and herbage on its surface, and in the minerals below it, remains unchanged, subject always to the right of the company to construct and operate its road in any legally authorized mode. *- Barclay v. Howell. 6 Pet. 408. Cases going to this point are very numer- ous, and they may be found collected in '■) Kent Com. 432, and notes. By the civil law, it is said, the soil of public highways is in the public, and the law of Louisiana is the .same. Renthorp c. Bang, 4 Mart. La. !i7. " Koch V. Dauphin, James, 159. [*251] •260 EMINENT DOMAIN. [PART III. in regard to the title acquired by railway companies.^* (c-) But in one case^^ it was held, that the municipal authority of a city have no power to grant permission to a railway company to take or injure the property of a citizen ; but the companies have an im- plied authority to make such side-tracks and continuations at the termini of their road as may be reasonable and necessary for the transaction of their business and the accommodation of the public, and may take private property for these purposes. The right to * use and enjoy the street is an appurtenance to the adjoining land, and an injury to the appurtenance is an injury to the whole f)roperty ; and as for such an injury the statute prescribes no remedy, the land-owner must resort to his common-law remedy. 11. But in a case in Massachusetts,^^ the title seems to us ^* Wheeler v. Rochester & Syracuse Railroad Co., 12 Barb. 227; Hunger v. Tonawanda Railroad Co., 4 Comst. 349; Coster v. New Jersey Railroad Co., 3 Zab. 227. The New York Court of Appeals, on elaborate examination, came to the conclusion, that a deed to a railway company, granting land to it and its successors, conveys an estate in fee. Nicoll v. New York & Erie Rail- road Co., 12 N. Y. 121. But see Henry v. Dubuque & Pacific Railroad Co., 2 Iowa, 288. In De Varaigne v. Fox, 2 Blatchf. C. C. 95, it was held, that where the statute conferred the right to take the fee of land, and it was taken on compensation accordingly, the court will not construe the grant as a condi- tional fee or usufruct, leaving a possible reverter to the original proprietor, but will regard the entire property as vested in the grantee forever; and that if any right accrues to the former owner in consequence of the change of tlie destination of the property, after the continuance of the use for twenty-six years, it is an equitable and not a legal right. ^5 Protzman v. Indianapolis & Cincinnati Railroad Co., 9 Ind. 467. What shall be a reasonable extension of the track of a railway in a city beyond the depot is here discussed. It seems to be more a question of fact than of law. Evansville & Crawfordsville Railroad Co. v. Dick, 9 Ind. 433. ^^ Ilazen v. Boston & Maine Railroad Co., 2 Gray, 574. But the com- pany has no right to do any act on the land not conducive to the use of the land for the purposes of the grant; but of the character of the act the (c) Oregon Railway & Transporta- 643; s. c. aflarmed 79 N. Y. 293; Scott tion Co. f. Oregon Real Estate Co., 10 «. St. Paul & Chicago Railway Co., Orog. 444; Williams v. Western Union 21 Minn. 322; Cliallis r. Atchison, Railway Co., 50 Wis. 71; Kansas Topeka, & Santa Fe Railroad Co., 10 Central Railway Co. r. Allen, 22 Kan. Kan. 117. And accordingly in pro- 285. The legislature has power, how- ceedings under statutes making sucli ever, to provide that the fee may be provisions a fee is acquired. Challis acquired. Sweet i'. Buffalo. New York, v. Atchison, Topeka, & Santa Fe Rail- Si Philadelphia Railway Co., 13 Hun, road Co., supra. [*252] 5 CO.] TITLE ACQUIRED BY COMPANY. 2G1 tu be cxf»licitly and fully stated, and the only ground of distinc- tion between railways and connnon liitrbways, as tu the title of (he land taken, very intelligibly pointed out. The court here say, "The right aequii'ed by the corpf^ration, although technically an casement, yet requires fur its enjoyment a use of the land per- manent in its nature and practically exclusive." 12. Jlencc, it seems tu be admitted that, even in cases "where the statute provides for the taking of the fee, upon the discontinu- ance of the public use, the land reverts to the former owner. ^^ j>ut where a special act authorizes a municipal corporation to hold the fee of the soil for the site of an almshouse, it was held that the original owner and his representatives could claim no exclu- sive interest therein, or any reversionary title thereto, after the removal of the almshouse to another site.^^ * 13. In some of the cases in this country, it has been held that it is only the residuum of title remaining in the corporation, at the time a railway is discontinued, that reverts to the former owner of the hind, and that, in the mean time, the company may wholly defeat the reversion, by a conveyance in fee-simple ; and this remarkable projwsition is distinctly announced in one case : ^^ — " Corporations have a fee-simple for purposes of alienation, but they have only a determinable fee for purposes of enjoyment." 14. If it were said that corporations, created for special pur- poses of intercommunication, like railways and canals, and in- vested with the sovereign prerogative of eminent domain for these jnirposes only, had no interest, or estate, in lands whatever, ex- cept f(jr the mere purpose of carrying on the functions with which they were invested by the state, and could neither use nor convey the lauds, to be used for any other purpose whatever, it would company is tlie judjje. Brainard r. Clapp, 10 Cash. G. In this case, Suaw. C. J., defines the title of the railway, in lands taken for its use. See Chicago 6 Mississippi Railroad Co. i'. Patchin, 16 111. inS. " People j^. White, 11 Barb. 20; United States r. Harris, 1 Sumner. 21. But by the repeal of a charter the lands do not revert. The franchises of the corporation are resumed by the state, and the railway remains jiubiic jiroperty, subject to the management and control of the state. Erie & Northeast Rail- road Co. V. Casey, 20 Penn. St. 287. But see Rexford v. Knight, 1 1 X. Y. 308. " Ilayward v. New York, 3 Seld. 314. So also in regard to lands appro- priated to the use of the state canals. Rexford c. Kniglit, 11 N. Y. 308. '9 Nicol V. Xew Y'ork & Erie Railway Co., 12 Barb. 4G0. See State v. Rives, 5 Ire. 297. [*253] 282 EMINENT DOMAIN. [PART III. seem far more in accordance with established principles and gen- erally received notions upon the subject. In the same case it is said, a grant to a corporation, created only for a term of years, purporting to convey a fee, will not be construed to convey only a term for years. 15. In all these cases where the title of the company depends upon conditions, they must be strictly performed and strictly construed.-*^ (f?) 16. But where, by the law of the state, railways, upon discov- ery that the title they are acquiring may prove defective, have the right to take new proceedings, it was held, that the discovery of a mortgage upon lands will justify the abandonment of pend- ing process, and instituting procedure under the section which allows them to extinguish incumbrances on that portion re- quired for their road.^i And the appraisal of land subject to an easement in the grantor is irregular, and no title passes.-^ 17. After land is condemned for the use of a railway, the adju- dication * can no more be impeached by any collateral proceeding, or by evidence, than the judgment of any other court of exclusive jurisdiction.23 And it was held, under the Pennsylvania statute,^* that after the award of land damages, and payment of the money, the company become the owners of the land notwithstanding the pendency of a certiorari to remove the case into the Supreme Court.25 18. Where the Commonwealth of Pennsylvania, in the construc- tion of her public works, acquired the fee-simple of land taken therefor, either by purchase or the right of eminent domain, and the land was devoted to the use of a highway, a cessation of that use does not revest the title in the former owner.^*^ 20 Bangor & Piscataqua Railroad Co. v. Harris, 8 Me. 533; Levering v. Phila- delphia, Gerinantown, & Xorristown Railroad Co., 8 Watts & S. 459; Munger V. Tonawanda Railroad Co., 4 Comst. 349; Carr v. Georgia Railroad & Bank- ing Co., 1 Kelly, 524. 21 In re Xew York Central Railroad Co., 20 Barb. 419. =" Hill V. Mohawk & Hudson Railroad Co., 3 Seld. 152. 23 Hamilton v. Annapolis & Elk Ridge Railroad Co., 1 Md. Ch. 107. 2* Stat, of 1829, § 15. 25 Schiller v. Northern Liberties & Penn Township Railroad Co., 3 Whart. 555 ; .tupra, § 65; infra, § 73. 26 Haldeman v. Pennsylvania Central Railroad Co. , 50 Penn. St. 425. See also Ql) See supra, part 3, c. 11, § 3. [*254] § "'J-] CORPORATE FRANCHISES CONDEMNED. 203 ♦SECTION VTII. Corporate Franchises condemned. 1. Road franchise may be taken. 2. C'oini)ensatioii must be matk'. 3. Railway fraiiciiise may be taken for aiiotlior company. 4. Rule (Ictined. Grant of land for one public use must yield to that of an- other more urgent. 6. 6. Constitutional restrictions. Obliga- tion of charter contract. 7. Inviolable contract rights not taken by implication. 8. Legislative discretion, former grant not exclusive. 9. Highways and railways compared. 10. E.xclusive character of grant docs nut prcchule exercise of the right of eminent domain. 11. Exclusiveness of the grant, a subor- dinate franchise. 12. Legislature cannot create a franchise, above the reach of eminent domain. 13. Legislature may apply streets in city to any public use. 14. Compensation in such cases to the owner of the fee. Converting canal into railway. § TO. 1. The franchise of a turnpike, or bridg-e, or other similar corporation may be taken for a free road, or for a railway, which, as we have said, is an improved highway.^ («) And it will make as to proceedings under Lateral llailroad Acts of Pennsylvania, Brown r. Peter- son, 40 Penn. St. ;}73 ; Boyd v. Negley, 40 Peun. St. o77 ; Pittsburg v. Pennsylva- nia Railroad Co., 48 Penn. St. 355. It seems scarcely necessary to state that the final judgment of condemnation and the payment of the award vests in the company the absolute right to use the land embraced in the judgment for all its legitimate purposes. Dodge v. Burns, G Wis. 514; Burns v. .Milwaukee & Mississippi Railroad Co., 9 Wis. 450. And the acceptance of the value of the land by the land-owner, however the amount may have been ascertained, is an acquiescence in the taking, as much as a conveyance by deed. lb. He cannot accept the amount of an award of damages, and also appeal therefrom. Missis- sippi & Mi.ssouri Railroad Co. v. Byington, 14 Iowa. 572. But where the parties refer tiie question of tiie amount of damages, and the award is that the amount be paiil simultaneously with the making of conveyance, and the company offers to i)erform but the owner declines, he cannot, many years afterwards, maintain an action against the company for not performing. Smith v. Boston & Maine Railroad Co,, Allen, 'JOi*. ^ Armington v. Barnet, 15 Vt. 745; West River Bridge v. Dix, How. 5t>7; s. c. 10 Vt. 446; AVhite River Turnpike Co. v. Vermont Central Railroad Co., 21 Vt. 594; Boston AVater Power Co. v. Boston & AVorcester Railroad Co., 23 Pick. 300; Central Bridge Corporation v. Lowell, 4 Cray, 474. (fi) Lands taken for purposes of a wards for a highway. Prospect Park & station cannot be condemned after- Coney Island Railroad Co. v. William- [*25o] 264 EMINENT DOMAIN. [PART III. no difference that the franchise is situate partly within the limits of different states, as in the case of a bridge across a river which forms the divisional line between different states. But the proceedings in one state can only take what lies within its limits.^ 2. But compensation, either for the entire franchise, which is the more common course and ordinarily the only just mode of procedure, or for the special injury, must be made.^ But it is no objection to the validity of an act of the legislature, allowing a railway to carry its track across the land of a mill-dam company, incorporated by the legislature, that it contains no express provi- sion for compensation to such mill-dam company. This is implied, as in other cases, where land is taken."* And the same implica- tion has been held to extend to the case of a subsequent grant of a railway which materially depreciated the use and value of a prior grant of a bridge.^ But it is the more commonly received opinion, that a subsequent grant, which only incidentally * oper- 2 Crosby v. Hanover, 36 N. H. 404. 8 West River Brids^e v. Dix, 6 How. 507; Boston "Water Power Co. v. Bos- ton & Worcester Railroad Co., 22 Pick. 360. And see infra, note (b). But see 11 Leigh, 42. * Boston A\'ater Power Co. v. Boston & Worcester Railroad Co., supra. ^ Enfield Toll-bridge Co. v. Hartford & New Haven Railroad Co., 17 Conn. 4.54; s. c. 17 Conn. 40. son, 91 N. Y. 552; St. Paul Union On repeal of a statute incorporating Depot Co. V. St. Paul, 30 Minn. 359; a railway company, the legislature may Atlanta v. Central Railroad & Bank- permit a new company incorporated ing Co., 53 Ga. 120. in.stead of the old one to take its fran- And in a proper ca.se any corpo- chi.ses. Greenwood v. Freight Co., rate franchi.se may be taken in the 105 U. S. 13. But though a franchise exercise of the right of eminent do- may be taken, the right is not to be main. Philadelphia & Gray's Ferry implied except in a ca.se of clear ne- Passenger Railway Co.'s Appeal, 102 cessity. Penn.sylvania Railroad Co.'s Penn. St. 123. But not without statute. Appeal, 93 Peun. St. I.jO. Baltimore & Oiiio & Chicago Railroad The right of one railroad company Co. V. North, 23 Am. & Eng. Railw. to condemn a part of the lands of an- Cas. 30. See In re New York, Lack- other is open for trial in condemnation awanna, & Western Railroad Co., 99 proceedings. Cumberland & Pennsyl- N. y. 12. And statutory intent to vania Railroad Co. v. Pennsylvania that end is not to be implied. Balti- Railroad Co , 57 ^Md. 207. And see more & Oliio & Chicago Railroad Co. Brown v. Philadelphia, Wilmington, & V. North, stipra. Baltimore Railroad Co., 58 Md. oi'J. [*2o6] §T0.] CORPORATR FRANCHISES CONDEMNED. 2G5 ati'S injuriously to an earlier ono, docs not rcfjuirc compcnsafion to be made for such injury, unless expressly so provided.'^ 3. So also may the franchise of one railway l>e taken for the construction of another railway." (/*) « White River TiuMipike Co. v. Vermont Central Railroad Co., 21 Vt. 5r»4. ' Gkikh, .F., in Richmond Railroad Co. v. Louisa Railroad Co., l;i How. SI, 82; 8. c. 2 Redf. Am. Raihv. Cas. GOO; Newcastle & Richmond Railroad Co. V. Peru & Indianapolis Railroad Co., 3 Ind. 401. (h) Rut of course the property of a railway company may not be taken without compensation. The property rij,'hts of such companies are as invio- lable as those of persons. Grand Rap- ids, Newaygo, &c. Railroad Co. v. Grand Rapids & Indiana Railroad Co., 35 Mich. 20.5; Lake Shore & Michigan Southorn Railway Co. v. Chicago & Western Indiana Railroad Co., 100 111. 21. Nor may land, necessary to the enjoyment of the essential franchises of sucii a company, be taken without special legislative authority. Dublin & Droglieila Railway Co. v. Navan & Kingscourt Railway Co., 5 Ir. Eq. 30;?; Lake Shore & Michigan Southern Rail- way Co. r. New York, Chicago, & St. Louis Railway Co., 8 Fed. Rep. 858; In re Cleveland & Pittsburg Railroad Co. 2 Pittsb. 3-18. Not even for a joint n.se with the elder company. Central City Horse Railway Co. v. Fort Clark Horse Railway Co., 81 111. 523. But land acquired by the exer- cise of the right of eminent domain, not necessary to the exercise of tiie francliise, may be taken by another company by the exercise of the same riglit. North Carolina Railroad Co. v. Carolina Central Railway Co., 83 N. C. 489: Peoria, Pekin, & Jacksonville Rail- road Co. V. Peoria & Springfield Rail- road Co., 00 111. 174. And a way may be taken across tlie way of another road. Great North of England Rail- ^vay Co. v. Clarence Railway Co., 1 Coll. 507 ; St. Louis, Jacksonville, & Chicago Railroad Co. v. Springfield & Northwestern Railroad Co., 'M 111. 274. Rut not witliout express author- ity. Clarence Railway Co. v. Great North of England Railway Co., 4 Q. B. 40. In making a crossing, temporary scaffolding may be jilaced on the land of the elder company. Great North of England Railway Co. v. Clarence Railway Co., 1 Coll. 507. As to dam- ages for crossings, see St. Louis, Jack- .sonville, & Chicago Railroad Co. v. Springfield & Nortli western Railroad Co., 90 111. 274; Lake Shore & Michi- gan Southern Railway Co. v. Chicago & Western Indiana Railway Co., 100 111. 21. The condemnation of lands of a company which are not used for railroad 2>iirposes, for use in the construction of another road, will not avail in condemnation of the franchise. The right of way and tiie power to cross the track of the former road are all that will be accpiired. State i'. Eastern & Amboy Railroad Co., 30 N. J. Law, 180. A general grant of power to establish a road across a track, thougii sufficient to warrant the laying of a road wherever public ne- cessity may demand, does not include )iower to appropriate the property of the company in such a w.ny a.s to de- stroy or greatly injure its franchise. Hannibal v. Hannibal & St. Jo.seph Railway Co., 49 Mo. 480. For the location of a way across a track the [*2oGJ 2GG EMINENT DOMAIN. [PART III. 4. In one case the law upon this suhjcct is thus stated, by SiiAW, C. J. : " The court arc of opinion, that it is competent for the legislature, under the right of eminent domain, to grant authority to a railway corporation to take a highway longitu- dinally in the construction of their road.' The power of eminent domain is a high prerogative of sovereignty, founded upon public exigency, according to the maxim, Salus reipuhlicce lex suprema est, to which all minor considerations must yield, and which can only be limited by such exigency. The grant of land for one pub- lic use must yield to that of another more urgent." ^ 5. The great question of the inviolability of corporate franchises, which we shall have occasion to discuss more at large hereafter,^ is no doubt to a certain extent involved here. For, upon gen- eral principles of legislative authority, there could be no question that a corporation, which is the mere creature of the legislature, might be at once and unconditionally extinguished, by repeal of the charter. This is confessedly within the power of the legisla- tive authority of the British parliament ; and the legislative authority of the parliament of Great Britain is no more extensive than that of the legislatures of the American states, aside from restrictions contained in the constitutions of the United States and of the several states-^*^ 6. The only limitation upon this power over private corpora- tions, in most of the states, perhaps in all, is found in that pro- vision of the United States Constitution which prohibits the legislatures of the several states from passing any law impairing the * obligation of contracts. And the proper limits of this re- 8 Springfield v. Connecticut River llaih-oad Co., 4 Cush. 63; s. c. 1 Redf. Am. Railw. Cas. 299. See also, on the general subject, Chesapeake & Ohio Canal Co. v. Baltimore & Ohio Railroad Co., 4 Gill & J. 1; Forward v. Hamp- shire & Hampden Canal Co., 22 Pick. 462, where- the prior company is held bound by acquiescence in the transfer of its franchises to another company. Irvin V. Turnpike Co., 2 Penn. 4GG ; Rogers v. Bradshaw, 20 Johns. 735; Backus V. Lebanon, 11 X. H. 19. 9 Infra, §231. ^° Dartmouth College v. Woodward, 4 AVheat. 518. company is entitled to damages; but Deering, 23 Am. & Eng. Railw. Cas. interference with the running of trains, 51. Contra, Chicago & Western In- the inconvenience and increased risk diana Railroad Co. v. Englewood Con- and expense, are not to be considered, necting Railroad Co., 23 Am. & Eng. Portland & Rochester Railroad Co. v. Railw. Cas. 56. 1*251} § 70.] CORPORATE FRANCHISES CONDEMNED. 207 striction, in rci^ard to corporations, is not altoL'ctlicr well dofincd in the dilTerent opinions of the several JLid^a-s of the supreme national tribunal upon this subject ; nor is there any thin<5 aj)- proacliing unanimity among them. 7. i)ut it may perhaps be regarded as settled, for the time at least, that where exclusive privileges are conferred Upon j)rivatc corporations, by express words or necessary implication, the grant is irrevocable and inviolable. But that the grant of any privilege or franchise carries no implied exclusion of similar privileges and franchises being conferred upon other ]jcrsons, natural or corporatc.^^ (c} 8. The legislature may in all instances determine wlicn and where the public necessities require additional facilities, of a similar or analogous character, where the former grant is not exclusive.^^ 9. And in some cases of exclusive and perpetual grants, for common highways or bridges, it has been held, that this did not preclude the legislature from granting railways and railway bridges within the limits of the former grant. ^^ In the case just referred to,'^ the court held, that a perpetual grant of a toll- bridge across tlic Cape Fear River, which in terms subjected all j)crsons to a penalty foi* transporting persons or property across that river in any other manner, within six miles of the plaintiff's bridge, would not subject the defendant's company to the penalty for carrying persons and property across the river, u})on their road, l»y means of a bridge erected within the six miles; that the grant was intended to be exclusive only as to all modes of travel and transi)ortation then known, but not to exclude all improvc- nieuts thereon, in all future time.^^ " Charles River IJridge v. Warren Bridge, 11 Tot. 4'20; Thorpe v. Rnt- laiul it Burlington Railroad Co., 27 Vt. lit); s. c. 2 Redf. Am. Railw. Cas. 5S7; Boston & Lowell Railroad Co. r. Salem & Lowell Railroad Co., 2 (Jray, 1 : Mohawk Bridge Co. v. Utica & Schenectady Railroad Co., Paige, 551; llml- son & Delaware Canal Co. v. New York & Erie Railroad Co., 9 Paige, 323. »^ Mcllee V. Wilmington & Raleigh Railroad Co., 2 Jones, N. C. ISG. But see Knfield Bridge Co. v. Hartford & New Haven Railroad Co., 17 Conn. 40, 451. '" But this distinction is certainly not attempted to be maintained in the majority of the cases on this subject, either in England or in this country. Itifnx, § 231 ct se(i. (0 St. Clair County Turnpike Co. West Jersey Railroad Co , 101 U. S. r. Illinois, 90 U. S. 03; Thomas v. 71. [•2.37] 2(38 EMINENT DOMAIN. [PART III. 10. But the exclusive character of a corporate grant will not preclude the power to take tlie franchise, upon making compensa- tion, * under the right of eminent domain, the stipulation in the charter, that the grant shall be exclusive of all others, being sub- ject to the same law as other property, whether in possession or action ; all wliich is confessedly subject to the exercise of the right of eminent domain, by the sovereign.^* 11. It has sometimes been characterized as a refinement or an invention, to identify the covenant, in the charter of a private cor- poration, that the grant shall be exclusive of all others, with the charter itself, and thus subject it to the law of eminent domain. But it seems to us entirely a sound view, in all cases where the whole franchise of the corporation is proposed to be taken, and that the charge of refinement is rather to be laid at the door of such as attempt to raise a distinction between the exclusiveness of the grant and the grant itself, in order to preserve the in- violability of the former, which is the lesser and subordinate franchise, when the latter, and paramount, and vital franchise of a corporation is confessedly subject to tlie law of eminent domain.^^ 12. It is intimated in West River Bridge Company v. Dix, by Woodbury, J., that if the charter of the cor|)oration contained an express stipulation against the exercise of the right of eminent domain upon the corporation, this might secure the franchise. But this is certainly not the prevailing opinion. ^"^ (cZ) " Enfield Toll Bridge Co. v. Hartford & Xew Haven Railroad Co., 17 Conn. 40, 454. This doctrine has been repeatedly asserted in all the courts of the country. And the right to take the franchise of another corporation, by parity of reason, carries the right to impair another franchise to any extent on making indemnity. In re Kerr, 42 Barb. 119. 15 West River Bridge Co. r. Dix, 16 Vt. 446; s. c. 6 How. 507, 539, per Woodbury, J. who argues that it is difficult to comprehend why the exclusive- ness of the grant to a private corporation should, on principle, be any more inviolable by legislative authority than any other part of the corporate fran- chise. It is only as property that it is valuable, or that it is protected at all. And all property is, in cases of proper necessity, subject to the law of eminent domain. It is very questionable whether this law should be held to extend to tho.se portions of public works which may always be obtained in the market, and where, by consequence, there is no practical necessity. 1® In regard to the right of eminent domain, it seems now to be conceded, (f/) See supra, notes (a), (b). [*258] § 70.] CORPORATE FRANCHISES CONDEMN'ED. 209 * 13. The fee of the streets of a city, where it has J)ccn acquired by tlie municipality under the right of eminent domain, becomes * a public trust for general public purposes, and is under the un- qualified control of the legislature, and any legislative appropria- tion of it to public use is not to be regarded as the a})pro})iiation of private property, so as to require compensation to the city or municipality to render it constitutional.^^ The mere possibility *of reverter to the original owner, or his heirs or grantees, is n(jt regarded in such cases as any appreciable interest requiring to be compensated.^' 14. Courts seem sometimes to have entertained doubts if it is competent for a railway company to appropriate the franchise of a canal comi>any along the same line so as to supersede the canal by its own works.^^ But we apprehend there can be little doubt on that point ; and the case last cited holds, that if this is attempted and acquiesced in by the canal company, it is not com- petent for the owner of the fee in the land to claim a reverter of the title by reason of the want of power in the railway company. The most the owner of the fee could claim in such case is to recover compensation for any additional land taken, and for any additional burden imixjsed upon the land appropriated to the canal, as well as for any additional damage to the adjoining lands of the same owner.^^ (c) that no legislature, on anj' consideration or pretence whatever, can deprive a future legislature of its exercise, to the absolute anniliilation of corporate franchises, on just and adequate compensation. In Backus v. Lebanon, 11 N. II. 19, Parker, C. J., gave a very able exposition of the question. See also, to the same effect, the opinion of Mr. Justice Grier, in the United States Circuit Court, in IMilnor v. Xew Jersey Railroad Co., Law Reg. G, 7; and Crosby v. Hanover, 20 Law Rop. G4G; s. c. 3G N. H. 40L " People I'. K(M-r, 27 X. Y. 188. See also Philadelphia & Reading Railroad Co. V. IMiiladolpliia, 17 Penii. St. 325, ^^ Hatch V. Cincinnati & Indiana Railroad Co., IS Ohio St. 92. CO The owner of the fee is enti- Am. & Eng. Railw. Cas. 1; Lafayette, tied to compensation. Pittsburg & Muncie & Bloomington Railroad Co. Lake Erie Railroad Co. v. Bruce, 10 v. Murdock, GS Ind. 137. [*259-*261] 270 EMINENT DOMAIN. [part III. SECTIOX IX. Compensation : Mode of Estimating. 1. Xiiture of the general inquiry. 2. Damage and benefits shared by the public not to be considered. 3. General rule for estimating compen- sation. 4. Prospective as well as present dam- ages assessed. 5. In some states value " in money " is the measure of compensation. 6. 7. Damage and benefits cannot be con- sidered in such cases. 8. Under the English statute consequen- tial injuries to lands not taken com- pensated. 9. Compensation in view of farm accom- modations. 10. Benefits and damage, if required, must be stated, n. 1.3. Course of the trial in estimating land damages. 11. Items of damage not indispensable to be stated. 12. In contracts for land statutory privi- leges, to be secured must be stated. 13. Questions of doubt referred to ex- perts. 14. Special provisions as to crossing streets only permissive. 15. Award of farm accommodations with- in a certain time, time of the es- sence of the award. § 71. 1. The inquiry in regard to what compensation shall be made for land taken for public works would, on the face of it, seem to Ije a very simple one. One would naturally suppose the value of the land taken or the damage sustained to be the fair measure of compensation, and that there could be no serious diffi- culty in ascertaining the amount. 2. But in consequence of numerous ingenious speculations in regard to possible advantages and disadvantages arising from the public works for whicli lands are taken, the whole subject has become, in this country especially, involved in more or less uncer- tainty. All the cases seem to concur in excluding mere general and public benefit, in which the owner of land shares in common with the rest of the inhabitants of the vicinity, from being taken into consideration in estimating compensation, (a) {n) Pittsburg, Bradford, & Buffalo 58 Mo. 491 ; Hosher v. Kansas City, Railroad Co. v. ^IcCloskey, 23 Am. St. Joseph, & Council Bluffs Railroad & Eng. Railw. Cas. 86; Chicago & Co., 60 Mo, 303; Tebo & Neocho Evanston Railway Co. v. Blake, 24 Railway Co. v. Kingsberry, 61 Mo. Am. & Eng. Railw. Cas. 288. 51; Wyandotte, Kansas City. 8c Xorth- But special benefits, such as are western Railroad Co. v. \V"aldo, 70 personal to the owner, are to be con- Islo. C2!) ; Alden v. White Moun- sidered. Quincy, Missouri, & Pacific tains Railroad Co., 55 N. H. 413; Railroad Co. v. Ridge, 57 Mo. 599; Raleigh & Augusta Air Line Railroad Mississippi River Bridge Co. v. Ring, Co. v. Wicker, 74 N. C. 220; Chapman [*261] ■!•] COMPENSATION : MODE OF ESTIMATING. 271 3. It has been said, the appraisers arc not to go into conjectural and speculative estiniatiuns of consc(iuential damages,^ {li) but 1 Meacham v. Fitcliburg Railroad Co., 4 Cusli. '201; s. c. 1 Redf. Am. Railw. Cas. 27G. Uptoi, r. South Reading Branch Raihoad Co., 8 Cash. GOO; Albany NorthL-rn Railroad Co. v. Lansing, 10 Barb. GS; Canandaigua & Niagara Railroad Co. v. Payne, IG Barb. 273; Greenville & Columbia Kail- road Co. V. Partlow, 5 Rich. 428; White v. Charlotte & South Carolina Rail- road Co., G Rich. 47; Alton & Sangamon Railroad Co. v. Carpenter, 14 111. inO; Syinonds v. Cincinnati, 14 Ohio, 147; Brown v. Cincinnati, 14 Ohio, 541; Mclntire v. State, 5 Blackf. 384; State v. Digbj', 5 Blackf. 543; James River & Kanawha Co. v. Turner, 9 Leigh, 313 ; Schuylkill Co. v. Thoburn, 7 S. & R. 411. A jury, in estimating the damages, may consider the effect the construction of the railway will have in diminishing deposits of sediment, made by a river in high water flowing on the land and greatly enriching it. Concord Railroad Co. r. Greeley, 23 N. XL 237. Also the deterioration of adjacent land, not taken, either for agriculture, or for sale for building lots; and the risk from fiie, cave of family and stock, inconvenience caused by embankments, excavations, and obstructions to the free use of buildings. Sonierville & Easton Railroad Co. v. Doughty, 2 Zab. 495. The increase or decrease in the price of the remaining land, and tlie expense of fencing, are to be taken into the account, in assessing compensation. Greenville & Colum- V. Oshkosh & Mississippi River Rail- road Co., 33 Wis. 029; Philadelphia & Erie Railroad Co. r. Cake, 95 Penn. St. 139; Chicago & Mexican Central R;iihvay Co. v. Hitter, 10 Am. & Eng. Railw. Cas. 202; New Orleans Pacific Railway Co. v. Gay, 31 La. An. 430; Todd f. Kankakee & Illinois River Railroad Co., 78 111. 530. This does not include general ad- vance in value of land. Mississippi Railway Co. v. McDonald, 12 Ileisk. 54. But anything and everything con- nected with the general improvement which tends to an increase of value or usefulness, &c. Pittsburg & Lake Erie Railroad Co. v. Robinson, 95 Penn. St. 120. Although it affects other lands ill the vicinity. Credit Valley Rail- way Co. r. Spragge, 24 Grant Ch. 231. As to what may not be allowed by way of benefits, see Swayze v. New Jersey Midland Railway Co., 30 N. J. Law, 205; St. Louis, Arkansas, & Texas Railroad Co. c. Anderson, 39 Ark. 107; 'J odd v. Kankakee & Illi- nois River Railroad Co., supra; Cin- cinnati & Springfield Railway Co. v. Longworth, 30 Ohio St. 108. See, also, Pennsylvania & New York Rail- road Co. V. Bunnell, 81 Penn. St. 414, In Munkwitz v. Ciiicago. Milwaukee, & St. Paul Railway Co., 22 Am. & Eng. Railw. Cas. 151, it is held that the possible future drainage of land (part of which is taken) to the en- hancement of its value, po.'ssibility cut off by the taking, is too remote and problematical. As to damages which are general and shared by all the pub- lic, see Chicago & Pacific Railroad Co, V. Stein, 75 lU. 41. (/>) Thus they are not to consider the danger to trains or persons. ^IcReynolds r. Baltimore &Ohio Rail- road Co., 100 111. 152. But see In re New York, Lackawanna, & Western Railway Co.. 29 Ilun. 1. See further, infra, § 74. [*2r.i] 272 EMINENT DOMAIN. [PART III. confine * themselves to estimating the vahie of the land taken to the owner. Tliis is most readily and fairly ascertained by deter- mining the value of the whole land, without the railway, and of the portion remaining after the railway is built. The difference is the true compensation to which the party is entitled.^ {a} bia Railroad Co. v. Partlow, 5 Rich. 428. The value of the land taken, con- sidering its relation to the land from which it is severed, is to to be given, and such further sura as the incidental injury to the land not taken, from the construction of the road, exceeds the incidental benefits. Nashville Railroad Co. V. Dickerson, 17 B. Monr. 173, 180. Louisville & Nashville Railroad Co. V. Thompson, 18 B. Monr. 735. 2 Troy & Boston Railroad Co. v. Lee, 13 Barb. 169, 171; In re Furman Street, 17 Wend. G19; Canal Co. v. Archer, 9 Gill & J. 480; Parks v. Boston, 15 Pick. 198; Somerville & Eastou Railroad Co. v. Doughty, 2 Zab. 495; Hornstein v. Atlantic & Great Western Railroad Co., 51 Penn. St. 87; San Francisco, Alameda, & Stockton Railroad Co. v. Caldwell, 31 Cal. 367. See, also, Wilmington & Reading Railroad Co. v. Stauffer, 60 Penn. St. 374; Pitts- burg, Fort Wayne, & Chicago Railroad Co. v. Gilleland, 56 Penn. St 445; Walker v. Old Colony & Newport Railroad Co., 103 Mass. 10; and Arnold v. Hudson River Railroad Co., 49 Barb. 108, as to damage to land not taken. See also In re Utica Railroad Co., 56 Barb. 456. But no account is to be taken, in estimating land damages, of the benefit the railway may have been to other property of the plaintiff, disconnected with that taken. Railroad Co. v. Gilson, 8 Watts, 243; but see Columbus, Piqua, & Indiana Railroad Co. v. Simpson, 5 Ohio St. 251; Rochester & Syracuse Railroad Co. v. Budlong, 6 How. Pr. 467; Sater v. Burlington & Mount Pleasant Plank Road Co., 1 Iowa, 386. The value of the land, at the time of trial, or at any time subsequent to the construction of the work, cannot be referred to in determining the benefits conferred on the land not taken. Indiana Central Railroad Co. v. Hunter, 8 Ind. 74. (c) St. Louis, Arkansas, & Texas & ^Missouri Valley Railroad Co. v. Railroad Co. v. Anderson, 39 Ark. Whalen, 11 Neb. 585; Pittsburg, 167; East Brandywine & Waynesburg Bradford, & Buffalo Railroad Co. v. Railroad Co. v. Ranck, 78 Penn. St. McCloskey, 23 Am. & Eng. Railw. 454; Danville, Hazleton, & AVilkes- Cas. 86; Duynies i'. Chicago & North- barre Railroad Co. v. Gearhart, 8H western Railway Co., lb. 93. The Penn. St. 260. fair market value, i. e., for the use The value to be put upon the land to which it may be most advanta- taken is the fair market value. Page geously applied, and for which it V. Milwaukee & St. Paul Railway Co., would sell for the highest price in the 70 111. 324; Jack.sonvil]e & Southeast- mai-ket. King t'. Minneapolis Union crn Railway Co. r. Walsh, 100 111. 253; Railway Co., 17 Am. & Eng. Railw. Russell V. St. Paul, Minneapolis, & Cas. 93; Chicago & Evan.ston Rail- Manitoba Railway Co., 20 Am. & Eng. road Co. v. Jacobs, 110 111. 414. Railw. Cas. 191; Fremont, Elkhorn, Johnson v. Freeport & Mississippi [*2G2J § '1] COMPENSAirON : MODE OF ESTIMATING. 273 4. But the tappraiscrs arc to assess all the damaij^es, present and prospective, to wiiich the party will ever be entitled, by the j^ru- dcnt construction and operation ol' the ruad.'^ » Dearborn v. Boston, Concord, & Montreal Railroad Co., 24 N. II. 179; Clark V. Vermont & Canada Railroad Co., 28 Vt. 10-"5. The expen.se of fencinpf 18 to be included in the estimate of land damages. Winona & St. Peter Rail- road Co. V. Denman, 10 Minn. 2G7. The matter of estimating land damaq-cs to tlie owner of a farm, a portion of which is taken for the construction of a railway, is discussed with a considerate regard to the equitable interests of all parties, in the case of Robbins v. Milwaukee & Iloricon Railroad Co. ,G Wis. (J30. Damages done to mill property in lesseiung the advantages of the water- power, present and prospective, should be taken into account in estimating land damages. Dorian v. East Brandy wine & Waynesburg Railroad Co., 4(5 Penn. St. 520. River Railroad Co., Ill 111. 413; Low V. Concord Railroad Co., 25 Am. & Eng. Railw. Cas. 199. As to what i.s market value, see Sherman v. St. Paul, ^Minneapolis, & Manitoba Rail- way Co., 30 Minn. 227; Everett v. Union Pacific Railroad Co., 59 Iowa, 24"}; Paducah & IMemphis Railroad Co. t'. Stovall, 12 Heisk. 1; Boston, Hoosac Tunnel, & Western Railway Co., 22 Ilun, 17G. In Brisbiiie r. St. Paul & Sioux City Railroad Co., 23 Minn. 114, the value of the land as an exclusive means of approach to a city was considered. Depreciation in the value of the residue may also be consictered. Cincinnati & Spring- field Railway Co. r. Longworth, 30 Ohio St. 108; Fremont, Elkhorn, & Missouri Valley Railroad Co. r. Whalen, ciipni. But only so far as it follows from a proper construction of tlu> road. Fremont, Elkhorn, & Mis- souri Valley Railroad Co. r. Whalen, supra ; Burlington & Missouri River RaihoadCo. v. Schluntz, 14 Neb. 421. So far as it results from an antici- pated improper construction it is too speculative. Fremont, Elkhorn, & Missouri Valley Railroad Co. v. Whalen, supra. Xor can any account VOL. I. — 18 be taken of the state of the owner's business. Pittsburg & Lake Erie Railroad Co. v. Robinson, 95 Penn. St. 420. Or of benefits arising from improvements in the market, &c. St. Louis, Jersey ville, & Springfield Rail- road Co. V. Kirby, 104 111. 345. Or of the special value of the property as prospectively a monopoly of a roadway to lands of other persons. Powers v. Hazelton & Setonia Railroad Co., 33 Ohio St. 429. Nor, without a cros.s- bill, of damage to contiguous lands. Jones V. Chicago & Iowa Railway Co., G8 111. 380. But where there are con- nected parcels, the damage to all should be estimated, and not merely tlie dam- age to the parcels touciied. Wyan- dotte, Kansas City, & Northwestern Railway Co. v. Waldo, 70 Mo. 029. As to damages where parts of town lots are taken or a part of land hiid out into town lots, see Hooper v. Sa- vannah & Memphis Railroad Co., GO Ala. 529; Watson v. Milwaukee & Madison Railway Co.. 57 Wis. 332; Cincinnati & Springfield Railway Co. V. Longworth, sfip^-n : Todd v. Kan- kakee & Illinois Railroad Co., 78 111. 530; Hartsliorn v. Burlington, Cedar Rapids, & Northern liailwav Co., 52 274 EMINENT DOMAIN. [part III. * 5. Some of the state constitutions in terms provide that com- pensation for private property, taken for public use, shall be made " in money," and many eminent jurists have strenuously main- tained that compensation, to the extent of the value of the land taken, must always be made in money, (c?) and that no deduction can be made on account of any advantage which is likely to accrue to other property of the owner, by reason of the public work for which the property is taken.* Such accidental advan- * 2 Kent Com. 7th ed. 394, and note; Jacob v. Louisville, 9 Dana, 114; People V. Brooklyn, 6 Barb. 209. But this last case^was subsequently reversed Iowa, 613; Everett v. Union Pacific Railway Co., 59 Iowa, 243. As to taking under the English statute of a part of property constituting a nianu- factoi-y, see Richards v. Swansea Im- provement & Tramways Co., Law Rep. 9 Ch. 425. See also Falkner v. Somerset & Dorset Railway Co., Law Rep. 16 Eq. 458. As to damages where the lands taken are farm lands, see Michigan Air Line Railway Co. v. Barnes, 44 Mich. 222 ; Mississippi River Bridge Co. v. Ring, 58 Mo. 491; Harrison v. Iowa Midland Railroad Co., 36 Iowa, 323; Union Railroad Transfer & Stockyard Co. V. Moore, 80 Ind. 458; Brooks v. Davenport & St. Paul Railroad Co., 37 Iowa, 99. The cost of fencing is not an element, but how much the burden of fencing will depreciate value, is a proper question. Pitts- burg, Bradford, & Buffalo Railway Co. V. McCloskey, 23 Am. & Eng. Railw. Cas. 86. The owner of farm- land has a reasonable right to farm crossings. Kansas City & Emporia Railway Co. v. Kregelo, 32 Kan. 008. AVhere part of a tract is taken, the injury to the whole must be considered. Sheldon v. Minneapolis & St. Louis Railway Co., 29 Minn. 318; Reisner v. Union Depot Co , 27 Kan. 382 ; Bigelow V. West Wisconsin Railway Co., 27 "Wis. 478. See Chicago & Evanston [*263] Railway Co v. Dresel, 110 111. 89. As to what will be considered an entire tract within the meaning of this rule, see Wilmes v. Minneapolis & North- western Railway Co., 29 Minn. 242; Hartshorn v. Burlington, Cedar Rapids, & Northern Railway Co., 52 Iowa, 613; Atchison & Nebraska Railroad Co. v. Gough, 29 Kan! 94 ; Kuthsburg & East- ern Railroad Co. v. Henry, 79 111. 290; Kansas City, Emporia, & Southern Railway Co. v. Merrill, 25 Kan. 421, Parks V. Wisconsin Central Railroad Co., 33 Wis. 413; St. Paul & Sioux City Railway Co. v. Murphy, 19 Minn. 500. The way in which land is cut, whether so as to sever it and to result in inconvenience to the owner, should be considered. Brooks u. Davenport & St. Paul Railroad Co., 37 Iowa, 99 ; Dreher V. Iowa Southwestern Railway Co., 10 Am. & Eng. Railw. Cas. 221. But further as to inconvenience from fire, smoke, fencing, &c., see infra, § 74. The value of a building destroyed is to be considered, and its value is its value as a building, not for the materials of which it is composed. Lafayette, Bloomington, & ]\Iississippi Railroad Co. V. Winslow, 66 111. 219. In case of injury, general depreciation must be distinguished. Chicago & Eastern Illi- nois Railroad Co. v. Hall, 8 Brad. 621. (r/) Chesapeake & Ohio Railroad Co. V. Patton, 6 W. Va. 147. §71.] compensation: mode of estimating. 275 tagcs to the |)ortion of land not takon as drainage by means of cuts in the soil from grading the railway cannot be taken into account.'^ G. In a case in Vermont the court held, that taking land for a public highway is not appro] )riating it to public use, within the meaning of the constitution of that state, which requires compen- sation in such cases to be made " in money," but that this pro- vision only applies, where the fee of the land is taken ; and that where an easement only is taken for the purpose of a highway, and the remaining land is worth more than the whole was before the laying out of the road, the party is entitled to no compensation.^ in the Court of Appeals. *4 Comst. 419. And see Rice v. Turnpike Co., 7 Dana, 81 ; Woodfolk v. Nashville & Chattanooga Railroad Co., 2 Swan, 422. In the last-n.imed case it was said, benefits to the remaining land may be .set off against injury, but the party cannot be compelled to apply such benefits towards the price of his land. New Orleans, Opelousas, & Great Western Railway Co. V. Lagarde, 10 La. An. 150. Under such a provision in the constitution of Ohio, it was held, that in assessing damages, the jury had no right to take into cousideratiou tlie fact, that the value of the land had been increased by the propo.sal or construction of the work. Giesy v. Cincinnati, Wilmington, & Zanesville Railroad Co., 4 Ohio St. 308. General benefits resulting from the erection of a railway, to all who own property in the vicinity, are not to be taken into the account, in estimating land damages; and it was doubted if special benefits, accruing to the remainder of the land, could be so taken into account. Little Miami Railroad Co. v. Collett, G Ohio St. 1S2; Pacific Rail- road Co. V. Chrystal, 25 Mo. 514. 6 Evansville & Crawfordsville Railroad Co. v. Fitzpatrick, 10 Ind. 120, 5G0. • Livermore v. Jamaica, 23 Vt. 301. Tiiis case has been questioned. 1 .Shelf. Rixilw. Bennett's ed. 441. And the opposite view maintained in Pumpelly V. Green Ray Co., 13 Wal. 166. See also Reitenbaugh v. Chester Valley Rail- road Co., 21 Penn. St. 100. Contra, McMahon v. Cincinnati & Chicago Short- Line Railroad Co., 5 Ind. 413. Benefits arising to the owner of the land *' by the construction of the road" held not to have reference to the whule work, but to that particular portion which runs through the party's land. Milwau- kee & Mississippi Railroad Co. v. Eble, 4 Chand. 72. An act which provides for setting off the advantages to other laud against the value of the land taken, is not, on that account, unconstitutional. McMasters v. Commonwealth, 3 Watts, 292. But it has often been held, that such accidental advantages, especially where they are not peculiar to tlie particular land-owner, cannot be set off against the specific value of the land takon. State v. Miller, 3 Zab. 383; Woodfolk v. Nashville & Chattanooga Railroad Co., 2 Swan, 422; Hill v. Mohawk & Hudson Railroad Co., 5 Denio, 200; Keasy v. Louisville, 4 Dana, 154; Sutton v. Louis- ville, 5 Dana, 28; People v. Brooklyn, 6 Barb. 209. But many cases hold the coutrarv. People v. Brooklyn, 4 Comst. 419, where s. c. 6 Barb. 209. is re- 276 EMINENT DOMAIN. [PART III. * 7. This is certainly not in conformity with the general course of decision upon this subject. It is tlie only case probably, where an attempt is made to escape from such a constitutional provision, in this manner. Some will doubtless regard it as too refined to be sound. And if it is true, as is sometimes claimed, that tlie legislature had no right to resume the fee of land for highways and railways, such a constitutional provision, with such a con- struction, would have little application to the taking of land for such uses." versed; Rexford v. Knight, 15 Barb. 627. But where profits are to be taken into the account, the title to have them considered obtains at the time the ser- vitude is located. Palmer Co. v. Ferrill, 17 Pick. 58. Benefits by increase of business and population, markets, schools, stores, and other like improve- ments, cannot be considered, in estimating damages, for flowing laud by a mill-dam. lb. In a case in New Hampshire, In re Mount Washington Road Co., 35 N. H. 131, it was decided, that in assessing damages for land taken for a turnpike or free highway, compensation is to be given for the actual value of the land taken, without regard to any speculative advantages or disadvantages to the owner. See Cushmau v. Smith, 31 Me, 247. But in Indiana Central Rail- road Co. V. Hunter, 8 Ind. 74:, the rule of Livermore v. Jamaica, supra, is adopted. And in Whitman v. Boston & Maine Railroad Co., 7 Allen, 313, it was decided, that in estimating the damages to land by reason of the location of a railway across it, and the filling up of a canal in which the owner of the lot had a privilege, if the value of the lot was so enlianced that what re- mained was worth moi'e than the whole lot was before, the owner had no claim for damages, s. p. in s. c, 3 Allen, 133. But the benefits to be de- ducted from the value of land taken must accrue to the remaining land, and not to all land in the same vicinity. Winona & St. Peter Railroad Co. v, Waldron, 11 Minn. 515. ^ Hatch V. Vermont Central Railroad Co., 25 Vt. 40; s. C. 1 Redf. Am. Railw. Cas. 285; Reitenbaugh v. Chester Valley Railroad Co., 21 Penn. St. 100. Contra, Little Aliami Railroad Co. v. Naylor, 2 Ohio St. 235. And in a case in Mississippi, Brown v. Beatty, 34 Miss. 227, where the constitution required "compensation first to be made" for land taken, it was held the provision secured to the owner the right to receive the cash value in money, and, in addition, full indemnity for all damages by means of severance, and that no enhanced value of the portion of land not taken could be taken into the account. See also Branson v. Philadelphia, 47 Penn. St. 320; Henry v. Dubuque & Pacific Railroad Co., 10 Iowa, 510. It is said in one case, what is very nearly a truism, that corporate existence and the right of eminent domain can be derived only from legislative grant, and that both mu.st be shown, and also compliance with all conditions of the grant, to justify taking lands com- pulsorily. Atkinson v. Marietta & Cincinnati Railroad Co., 15 Ohio St. 21. J^fra, § 76. The dedication of land to the use of a street will not autliorize the [*264] § 71.] compensation: mode of estimating. 277 * 8. The English statute provides, that, in estimating comfjen- sation for hind damages " regard shall be had, not only to the laud taken, but also to damage by reason of severance from other hiuds or otherwise injuriously affecting such lands." There arc, too, in the English statute, provisions for compensation to sundry siil»ordinato interests in lands, as to lessees for years and to tenants from year to year. And also in regard to mines. The company are not entitled to mines or minerals under lands, ex- cept such parts as shall be necessary to use in the construction of the road, unless expressly purchased. It has been held that stone got from quarries are minerals,^ and that mines are quar- ries, or places where anything is dug,^ By the English statute, the company may remove or displace gas or water pipes, making compensation to all parties injured. 9. And where commissioners appraise the damages upon the basis of the railway making and maintaining certain works for the accommodation of the land-owner, as a culvert and waste- way, . New Haven St. 362; Stinson v. Chicago, St. Paul, & Northampton Railroad Co., 133 Mass. & Minneapolis Railroad Co., 27 Minn. 253; Boston & ]\Iaine Railroad Co. v. 2S1; Everett y. Union Pacific Rail- Montgomery, 119 Mass. 114. [*273J § 7:2.] MODE OF PROCEDURE. 287 competent to show for wliat price one had contracted to buy land adjuining.^^ Nor can the cUiimant ])rove, what tlie company have offered him for the land;^** nor what the company have been com- pelled to pay for land adjoining, which was taken compulsorily.^* * 14. And it has been held that witnesses cannot he allowed to give their opinion of the value of the land or materials taken.^ (e) tion to that of a mechanic, is competent. And in Shattnck r. Stoneham Branch Kaih'oad Co., 6 Allen, 115, it was held, tliat in snch proceedings the land-owner, being a competent witness, may testify to his opinion of the amount of damage he has sustained, and may prove recent sales of other lands similarly situated; but that he cannot give evidence of the opinions of others. It is rather matter of discretion with the court, whether sales of other lands were sufficiently recent, or the land sufficiently like that in question, to afford aid to the jury. And on such hearing the company may prove that it has located a passenger station, since the hearing began, near the petitioner's land. '" Chapin v. Boston & Providence Railroad Co., 6 Cusli. 422. '^ Upton V. South Reading Railroad Co., 8 Cush. COO. 21 White V. Fitchburg Railroad Co., 4 Cush. 440. Only such damages as are peculiar to the owner of the land taken, and not those common to all land in the vicinity, can be considered. Freedle v. North Carolina Railroad Co., 4 Jones, N. C. 89. It has been held that the benefits resulting to the land- owner from the construction of the road are to be deducted, in estimating damages for land taken for a railway; and that consequently a statute providing for such deduction is not for that reason unconstitutional. Columbus, Piqua, & Indiana Railroad Co. v. Simpson, 5 Ohio St. 251. But as the constitution of Ohio expressly requires compensation to the land-owner to be made in moneii, it seems scarcely consistent to say that the benefits to the land-owner can in all cases be deducted, since in some cases the benefits to the particular piece of land, a portion of which is taken, might more than compensate for that which is taken, thus leaving nothing to be compensated " in money." The force of this embarrassment was felt by the court in a highway case in Vermont, where the constitution provides, that " whenever private property is taken for public use, the owner ought to receive an equivalent in money." The court escaped from its embarrassment by saying, that as the constitution applied only to prop- erty " taken for public use," it did not reach cases where only an casement in property was taken. The court might, with almost equal propriety, have said, that the language in the provision of the constitution " ought to receive," be- ing in the optative mood, did not imply an imperative duty, as few persons ex- pect to nhtain by process of law all which they " ouglit to receive." Liverniore V. Jamaica, 23 Vt. 301, Rf.dfikld, J., dissenting, sub silentio. Supra, § 71, pl. 0. See also Cleveland & Pittsburg Railroad Co. i\ Ball. 5 Ohio St. 5GS; Kramer v. Cleveland & Pittsburg Railroad Co., 5 Ohio St. 140. " Montgomery & West Point Railroad Co. v. Varner, 19 Ala. 185; Concord (0 Witnesses may not give their in gross. Baltimore, Pittsburg, & opinion as to the amount of damages Chicago Railway Co. v. Johnson, 59 [-74] 288 EMINENT DOMAIN. [PART III. This inquiry leads to the discussion of the general question of what matters may be proved, by the opinion of witnesses Avho are not possessed of any peculiar knowledge, skill, or experience upon the subject. 15. And it must be admitted the cases are not altogether rec- oncilable upon the subject. Experts are admitted to express their opinions, not only upon their own observation, but upon testimony given in court by other witnesses, and where the testimony is conflicting, upon a hypothetical state of facts.-^ The testimony Railroad Co. v. Cxreely, 23 N. II. 237 ; Buffum v. New York and Boston Rail- road Co., 4 R. I. 221 ; Cleveland & Pittsburg Railroad Co. r. Ball, 5 Oliio St. 508. But the witness may give an opinion as to the value of the whole land, both before and after the location of the road. lb. And so also in Illinois & Wisconsin Railroad Co. v. Van Horn, 18 111. 257. See also Dorian V. East Brandywine, & Waynesburg Railroad Co., 46 Penn. St. 520. In East Pennsylvania Railroad Co. t'. Hiester, 40 Penn. St. 53, it is said that the only proper test of the value of land so taken is the opinion of witnesses as to it.s value in view of its location and productiveness, its market value, or the general selling price of land in the neighborhood. And this seems to us ex- ceedingly sensible and free from refinement or conceit. See also East Penn- sylvania Railroad Co. v. Hottenstine, 47 Penn. St. 28. 23 1 Greenl. Ev. § 440. Thus the testimony of persons employed in making insurance of buildings against fire, may, in actions against railways for conse- quential damages to buildings, by the near approach of the track, express their Ind. 247, 480; Baltimore, Pittsburg, & road Co. v. Arnold, 13 Neb. 485; Chicago Railway Co. v. Stoner, 59 Ind. Snow v. Boston & Maine Railroad Co., 579; Brown v. Providence, & Spring- 65 Me. 230. As to who has knowl- field Railroad Co., 12 R. I. 238. Nor edge enough to testify, see Pittsburg as to separate items of damage. In re & Lake Erie Railroad Co. v. Robin- New York, West Shore, & Buffalo son, 95 Penn. St. 426 ; Pennsylvania Railway Co., 29 Ilun, 609. Nor as & New York Railroad Co. v. Bunnell, to the value of the land subject to 81 Penn. St. 414; Frankfort & Ko- the right of way. Fremont, Elkhorn, komo Railroad Co. v. Windsor, 51 & Missouri Valley Railroad Co. v. Ind. 238; Lehmicke v. St. Paul, Still- Whalen, 11 Neb. 585. But witnesses water, & Taylor's Falls Railroad Co., may testify to their opinion of the 19 Minn. 464; Diedrichs v. Northwest- value of the land. Curtis v. St. Paul, ern Union Railway Co., 47 Wis. 6(52; Stillwater, & Taylor's Falls Railroad Burlington & ]\Iissouri River Railroad Co., 20 Minn. 28; Sherwood i'. St. Co. y. Schluntz, 14 Neb. 421. A far- Paul & Chicago Railroad Co., 21 mer may testify as an expert as to Minn. 127; Sherman v. St. Paul, Min- the value of land for farm purposes, neapolis, & Manitoba Railway Co., but not generally. Brown v. Provi- 30 Minn. 227; Indianapolis, Decatur, dence & Springfield Railroad Co., 12 & Springfield Railroad Co. v. Pugh, R. I. 238; Kansas Central Railway 85 Ind. 279: Republican Valley Rail- Co. v. Allen, 24 Kan. 33. [*274] § Tli.] MODE OF PROCEDURE. 289 of such witnesses is intended to serve a double purpose, that of instruction to the jury upon the general question involved, and elucidation of the particular question to l)e considered by thcm.^^ Tiic resort to the assistance and instruction of persons skilled in j)articular departments of art or science is constantly adverted to, as of great advantage in enabling the triers to properly com- prehend those sul)j('Cts out of the range of their general knowl- edge, * or the i)articular studies of judges, or jurors, in some of the best-considered English cases, within the last few years.^* I)ut the testimony of scientific witnesses will not establish facts in conflict with the axiomatic principles of science and philos- ophy, or those which contradict the evidence of the senses or of consciousness.^* 16. But there is certainly a very considerable number of sub- jects, in regard to which the jury are supposed to be well in- structed, and altogether capable of forming correct opinions, and in regard to which the testimony of experts is not competent, or not requisite, but which it is more or less difficult for the wit- nesses to describe accurately, so as to })lace them fully before the minds of the jury, as they exist in the minds of the witnesses. Among these are inquiries in regard to the extent of one's projv crty, solvency, health, affection, or antipathy, character, sanity, and some others. In such cases the witnesses' knowledge is chiefly matter of opinion, and it is impossible to enumerate each l)articular fact. Of this character seem to us to be questions in regard to the quality and value of property. One may enumerate some of the leading facts upon which such an opinion is based ; but after all, the testimony as to facts is excessively meagre, without the opinion of the witness, either ujxin the very sul)ject of in(iuiry,or some one as near it as can be supposed. Hence in those courts where the opinion of witnesses, in regard to the opinion of the effect thereby produced on the rent, or the rate of insurance of such buildings. Webber v. Eastern Raiboad Co., 2 Met. 147. See also Henry v. Dubuque & Pacific Railroad Co., 2 Clarke, 288. And in theca.se of Brown V. Providence, Warren, & Ikistol Railroad Co., 5 Gray, 35, it was lield. that the company could not show that liquors were .sold, or to be sold, on land, as a part of the inducement to pay so hicrh a rent, or that it was " contemplated" having a station near the point; such testimony being too indefinite and remote. 2^ Broadbent r. Imperial Gas Co., 7 De G. M. & G. 430, 400, per howl Chan- cellor Craxworth. VOL. I.— 19 [*27o] 290 EMINENT DOMAIN. [PART III. value of property, real or personal, is not admitted, it leads to sundry shifts and evasions, in the course of the examination of witnesses upon that subject, which, while it is not a little embar- rassing in itself, at the same time illustrates the inconsistency, not to say absurdity, of the rule.-^ 25 See the opinion of the court in Concord Railroad Co. v. Greely, 2-'* N. H. 237. On an inquiry as to the vahie of a cargo of flour, it would sound strange to hear ^vitnesses testify what precisely similar flour is worth, and at the same time hear tliem gravely told, that they were studiously to avoid expressing any opinion as to the value of this very flour, which they had seen and examined, aud in regard to which the whole testimony was received. Yet, such is, from necessity, the course resorted to under the rule. The more general course is, we think, to receive the opinion of witnesses acquainted with the property and the state of the market, as to the value of the particular property in question. White V. Concord Railroad Co., 10 Fost. N. H. 188. But in New Hampshire, it has been held, that the opinion of witnesses in regard to apparent health is competent, and this seems to be yielding the main point of exclusion before insisted on. Spear v. Richard.son, 3i N. H. 428. ]n the same case the opinion of witnesses as to whether a hor.se was sound, or had the heaves, was excluded because the witness was not .shown to be an expert. Naturally the jud^^e re- garded the distinction as "somewhat nice." And in Currier v. Boston & Maine Railroad Co., 34 N. II. 498, it was held that a witness could give an opinion in regard to the occurrence of hardpan in an excavation; and in Hackett ■V. Boston, Concord, & Montreal Railroad Co., 3o N. H. 390, it was held that a witness might express an opinion in regard to distances, dimensions, and qualities. See also Rochester & Syracuse Railroad Co. r. Budlong, 6 How. Pr. 4G7. In Illinois & Wisconsin Railroad Co. i'. Van Horn, 18 111. 257, it is held that it is proper to have the opinion of witnesses in regard to the value of city lots, "as they have no stated value." Butler v. Mehrling, 15 111. 488; Kel- logg V. Krauser, 14 S. & R. 137. In Cleveland & Pittsburg Railroad Co. v. Ball, 5 Ohio St. 568, it is said that witnesses may be allowed to express an opinion as to the value of the land taken, but not as to the extent of damages which the land-owner will sustain by the appropriation of the land to public use, that being the very que.stion to be settled by the triers. This seems to place the matter on its proper basis. One must have had experience bear- ing on the particular point, in order to give an opinion of the extent of the in- jury caused thereby, and it is not sufficient that he may have had experience and skill in other matters pertaining to the building and operation of rail- ways. Boston & Worcester Railroad Co. v. Old Colony & Fall River Railroad Co., 3 Allen, 142. The court have declined to set aside the verdict for land damages, because testimony of the sale of upland at a considerable distance from the wharf, and of the price paid four months before the time of making the location, was received, and also of the number of trains passing over the land taken, and of the number of vessels and amount of lunaber, wood, coal, &c., coming to the wharf. [*2ToJ § 72.] MODE OF PROCEDURE. 291 * 17. Ill rcG^an] to costs, in siicli procecdiiiirs, the more general I'lilc is not to allow them, unless specilieally given by statute.^'^ (j) * Ijut where the statute ))i()viut where the ])arty whose costs are rightfully denied in the Court of Common Pleas, appeals upon that question, and the judgment is afTn'med, he must pay costs to the other party conse- quent upon the aj»pcal."^^ 28 Herbein v. Railroad Co , 9 Watts, 272. The Englisli statute, 8 Vict. c. 18, provides that where the land-owner refuses an offer equal to or exceeding his recovery, he shall recover no costs. This is construed to embrace all offers up to the time of the land-owner taking steps to have his case tried. Lord Fitz- Hardiiige v. Gloucester & Berkeley Canal Co., 20 W. R. 800. The party tak- ing the initiative in proceedings to estimate land damages under this statute is required to state at what price he will sell or purchase the land, and the other party may accept or modify the offer, and costs are awarded with refer- ence to the party obtaining an assessment better for him than the offer of the other party. This seems reasonable, independent of the statute. '•^ Railroad Co. v. Johnson, 2 Whart. 275. ^ Pennsylvania Railroad Co. r. Keiffer, 22 Penn. St. 35G ; Chicago & ^lil- waukee Railroad Co. v. Bull, 20 111. 218. ^ Atlantic & St. Lawrence Railroad Co. v. Commissioners, 28 Me. 112. ^^ Harvard Branch Railroad Co. v. Rand, 8 Cush. 218; Commonwealth v. (/) fn re Xew York, Lackawanna, pay, and what taxable. Conway r- & Western Railway Co., G:i How. Pr. McCiregor & Mis.souri River Railroad 123; Metier v. Easton & Amboy Rail- Co., 43 Iowa, 32; People v. McRoberts, road Co., 37 N. J. Law, 222. As to G2 111. 38 ; Rensselaer & Saratoga Rail- what is projHMly charged as costs, road Co. r. Davis, 55 N. Y. 115; Good- see Bliss V. Connecticut & Passump- win v. Boston & Maine Railroad Co., sic Rivers Railroad Co., 47 Vt. 715; G3 Me. 3(i3; //* re Syracuse, Bing- Roble r. Albia, Knoxville, & Des- liaTnton, ^ Xew York Railroad Co., Moines Railroad Co., 44 Iowa, 410. 4 Hun, 311 ; Metier r. Easton & Amboy Costs on abandonment of proceedings. Railroad Co., 37 N.J. Law, 222; Car- Loisse V. St. Louis & Iron Mountain olina Central Railway Co. i. Phillips, Railroad Co.. 2 Uo. Ap. 105; s. c. 72 78 X. C. 40: Xew Orleans Pacitic Rail- Mo. 501. Costs on appeal, who must way Co. c. Gav, 31 La. \n. UW. [*27G, *277] 292 EMINENT DOMAIN. [PART III. 21. It is no objection to the competency of a juror, in this class of cases, that he had been an appraiser of damages upon another railway, in the same county, or that he is a stockholder in another railway which had long before acquired the lands neces- sary for its use.^^ (Z:) * 22. Courts do not generally possess the power to revise the assessment of land damages, by a jury or other tribunal appointed by them for that purpose, upon its merits, and set it aside, upon the mere ground of inadequacy or excess of damages.^^ (^) 23. Where commissioners assessed land damages at a sum named, and stated further, that the plaintiff was to receive an ad- ditional sum in a certain contingency, and the report became Boston & Maine Railroad Co., 3 Cush. 56. But see supra, § 71, note 12, in regard to tlie course of proceeding, in estimating land damages. Where the statute gives an appeal, in estimating land damages, to a court of common-law jurisdiction, and does not jirescribe the mode of trying the appeal, it will be tried by commissioners, the usual triers in cases of that class, in common-law courts. And a statute permitting a trial by jury, in all cases proper for a jury, will not alter the mode of trial. Gold v. Vermont Central Railroad Co., 19 Vt. 478. 8' People V. First Judge of Columbia, 2 Hill, N. Y. 398. The tribunal for assessing land damages should be free fi'om interest or bias in order to meet the constitutional requirement for just compensation. Powers i\ Bears, 12 Wis. 213. But see Strang v. Beloit & Madison Railroad Co., 16 Wis. 635. But where it clearly appears that injustice has been done through some mis- take or misapprehension of the jury, the verdict should be set aside. Cadmus V. Central Railroad Co., 2 Yroom, 179. 32 Willing V. Baltimore Railroad Co., 5 Whart. 460. As to what is good cause for setting aside the report of commissioners, see Bennet i\ Camden & Amboy Railroad Co., 2 Green, 145; Van Wickle v. Railroad Co., 2 Green, 162; Rochester & Syracuse Railroad Co. v. Budlong, 6 How. Pr. 467. In Missouri, ■when the report of commissioners is set aside, the court must appoint a new board. Hannibal & St. Joseph Railroad Co. v. Rowland, 29 Mo. 337. But this rule will not apply where the report is recommitted to the same board, with instructions to pursue a different rule in estimating damages. lb. (k) Nor that he is a subscriber in Railway Co. v. Barnes, 40 !Mich. aid of a company lessor of the road 383. for whose use the land is to be con- (/) But see In re New York Cen- demned. Detroit Western Transit tral & Hudson River Railroad Co., 5 Railroad Co. v. Crane, 50 JNIich. 182. Hun, 105; s. c. 64 N. Y. 60. See But it is an objection that he has also Philadelphia & Erie Railroad Co. given his note to aid in the construe- v. Cake, 95 Penn. St. 139, which holds tion of the road. Nor can the dis- that the court may set aside the report qualification be removed by agree- of the viewers where the damages ment of parties. Michigan Air Line awarded are grossly excessive. [*278] § 72.] MODE OF PROCEDURE. 203 matter of record, it was held that debt would not lie for the ad- ditional sum, upon averring the hapj)cuing of the contingency.^ 24. Where the statute gave the court a discretion, to accept and confirm the inquest of land damages, or order a new inquest, "• if justice shall seem to recjuire it," it was held they might set aside the report for mere excess of damages, and that the Supreme Court might do the same, when the proceedings are brought uj) by certiorari?^ Qm} 8' Winchester & Potomac Railroad Co. v. Wasliiugton, 1 Rob. Va. 67. See also Dimick v. Brooks, 21 Vt. 5G9. 8* remisylvaiiia Railroad Co. i;. Iltister, 8 Penn. St. 445; s. c. 2 Am. Railw. Civs. 337. There are oilier decisions on matters of practice in assessing land damages: All the commissioners must be present and act, in all matters of a judicial character. Crocker v. Crane, 21 Wend. 211 ; s. c. 1 Redf. Am. Railw. Cas. 42. In regard to the mode of selecting and impanelling juries, for assessing land damages against railways, see Pennsylvania Railroad Co. v. Ileister, supra, which decides that where the statute recpiires the sheriff to summon the jury, it is irregular for him to select them from a list prepared by his deputy; and see Vail i'. ^lorris & Essex Railroad Co., 1 Zah. 189, where it is held, tliat commissioners appointed to value the land of a person named on one route, adopted by the company, cannot appraise the land of the same person, when the company adopt a different route across the land. In regard to the right of appeal, which is given in terms to the party aggrieved, it has been held to extend to the railway company, as well as the land-owner. Kimball v. Kennebec & Portland Railroad Co., 35 Me. 255. In New York no appeal lies from the order of the Supreme Court, con- firming the report of commissioners on the appraisal of land damages for land taken nnder the general railway act. The act provides for no such appeal, and the remedy, in the act, is intended to be exchisive. And besides, the Supreme Court exercises a discretion, to some extent, in confirming such re- l>orts, and on general principles an appeal would not lie to revise such ailjudi- cations. New York Central Railroad Co. v. ]Marvin, 11 N. Y. 270; Troy & Boston Railroad Co. v Northern Turnpike Co., 10 Barb. 100. Where the special act of a railway company required ten days' notice to the land-owner of the time when a jury would bo drawn to assess damages, it was held that a strict compliance with that requirement was necessary to jurisdiction, and that the objection was not waived by appearance before the officer at the time the jury was drawn, and objection to the regularity of the proceedings without stating the grounds, or by appearance before the jury, (m) A motion to set aside the ver- port ^ Bangor Railroad Co., 64 Me. diet is addressed to the court to which 130. Verdict will not be set aside for the verdict is returned. Burr v. Bucks- improper admission of evidence unless [*278] 294 EMINENT DOMAIN. [PAIIT 111. * 25. It does not seem important, where the statute in terms allows cither party to take compulsory proceeding to assess land when on their meeting to appraise the damages, and objection to one of them, wlio was set aside. Cruger v. Hudson lliver Raih'oad Co., 12 N. Y. 190. IMere informalities in the summons, which do not mislead the companj', will not avoid the proceeding. Eastham v. Blackburn Railway Co., 9 Exch. 758; s. c. 25 Eng. L. & Eq. 498. It is not important that the award should specify the finding on the separate items of claim. In re Bradshaw, 12 Q. B. 562. Where a special act prescribes a mode of procedure, in condemning land, different from that required by a general law of the state subsequently passed, the company may pursue the course prescribed by the special act. Clarkson V. Hudson River Railroad Co., 12 N. Y. 304. But it seems to be here con- sidered, that the company may, on the contrary, adopt the course prescribed by the general act. And on general principles it would seem that it should do so, unless there is something in the general act by which the existing rail- ways are at liberty to proceed under their charters. This is the ground of the decision in the last case. Xorth Missouri Railroad Co. v. Gott, 25 Mo. 540. Where the company's special act vests specific powers for the benefit of the public, as to build stations of given dimensions larger than the general act provides, it is not controlled by subsequent general acts. London & Blackwall Railway Co. v. Board of Works, 3 Kay & J. 123; s. c. 28 Law T. 140. In regard to the mode of proceeding in such cases, see Coster v. New Jersey Rail- road & Transportation Co., 4 Zab. 730; Green v. Morris & Essex Railroad Co., 4 Zab. 486; Pittsfield & North Adams Railroad Co. v. Foster, 1 Cush. 480. substantial injustice has been done, motion to confirm, will not deprive Detroit, Western Transit, & Junction the court of jurisdiction already ac- Kailroad Co. v. Crane, 50 Mich. 182. quired. Allen v. Utica, Ithaca, & Jurisdiction. — Service of process by Elmira Railroad Co., 15 Hun, SO. collusion on one not interested in the Jurisdiction is not open to question in land gives no jurisdiction. Dunlap v. collateral proceedings. Townsend v. Toledo, Ann Arbor, & Grand Trunk Chicago & Alton Railroad Co., 91 Railway Co., 46 Mich. 190. Service III. 545. must be made, when. Bowman v. Pleading!^, Practice, Evidence, ^'c. — Venice & Carondelet Railway Co., Land must be described, how in plead- 102 111. 472; Liebengut r. Louisville, ings. Indianapolis & Vincennes Rail- New Albany, & St. Louis Railway Co., road Co. v. Newsom, 54 Ind. 121 ; 103 111. 431. Petition must make Spofford v. Bucksport & Bangor Rail- prima facie case. State v. Hudson road Co., 66 Me. 20; In re New Yoik Tunnel Railroad Co., 38 N. J. Law, Cetitral & Hudson River Railroad Co., 548; Quayle v. Missouri, Kansas, & 70 N. Y. 191 ; Lower ». Chicago, Bur- Texas Railway Co., 03 Mo. 465; Spof- lington, & Quincy Railroad Co., 59 ford V. Bucksport & Bangor Railroad Iowa, 563. Allegation of special dam- Co., 06 Me. 26; Smith v. Chicago & age. North Pacific Railroad Co. i'. Western Indiana Railroad Co., 105 Reynolds, 50 Cal. 90. Filing of answer 111. 511. Failure to serve notice of unnecessary in Illinois. Smith v. [*279] § 72.] MODE OF PROCEDUIiE. 295 tlainuLros upon Uio parties failing to agree, that there shouM have been any jirevious attcmj)t to agree, in order to give jurisdiction to the courts to assess the amount of such compensation.*^ •* Bigelow V. Mississippi Central & Tennessee Railroad Co., 2 Head, G24. Chicago & We.stfMii Indiana Ilailroad Co., 105 III 511. Amendment of petition. In re New Yoilc & West Shore Railroad Co., 89 N. Y. 45:i. Dismissal of proceedings. St. Louis, Fort Scott, & Wisliita Railroad Co. V. Martin, '29 Kan. 750. Opening of default when default is excu.sed. In re New York, Lackawanna, & Western Railroad Co., 03 X. Y. 385. AVliat evidence admissible. Quincy, ]\lis- souri, & Pacific Railroad Co. v. Ridge, 57 Mo. 590; Wilmington & Reading Railroad Co. v. Iligli, S9 Penn. St. 282. Conditions precedent must be performed. Kansas City, St. Joseph, & Council Bluffs Railroad Co. v. Campbell, 02 Mo. 585. Other matters of practice. Port Huron & South- western Railway Co. v. Voorheis, iJO Mich. 50(J; East Tennessee Railroad Co. V. Burnett, 11 Lea, 525; Galena & Southern Wisconsin Railroad Co. v. Rirkbeck, 70 111. 208. Irregularity of proceedings as affecting validity of a.s.sessment. Detroit, Monroe, & To- ledo Railroad Co. v. Detroit, 49 Mich. 47. Effect of abandonment of pro- ceedings. Seine v. St. Louis & Iron Mountain Railroad Co., 72 Mo. 5G1. Report, Jiitlf/incnt, Sf-c. — Description in award. Michigan Air Line Rail- way Co. V. Barnes, 44 Mich. 222; Morgan r. Chicago & Northeastern Railroad Co., 39 Mich. G75. Award, how made where there are several owners. Rusch v. Milwaukee, Lake Shore, & Western Railway Co., 51 Wis. 130. Return, how made under statutes of Massachusetts. Wyman v. Eastern Railroad Co., 128 Mass. 346. Exceptions, what sufTicient. Tucker I'. Massachusetts Central Railroad Co., 110 !Mass. 124. Report of commi.s- sioners. Crawford v. Valley Railroad Co., 25 Grat. 407; Childs v. New Haven & Northampton Railroad Co., 133 Mass. 9.b'i. Conclusiveness of second award. Provalt r. Chicago, Rock Island, & Pacific Railroad Co., 09 Mo. 033; In re Prospect Park & Coney Island Railroad Co., 27 Hun, 184. Report, when set aside. Pueblo & Arkansas Valley Railroad Co. v. Rudd, 5 Col. 270. Judgment, entry, form and effect. Chesapeake & Ohio Railroad Co. r. Bradford, 6 W. Va. 220; Curtis r. St. Paul, Stillwater, & Taylor's Falls Railroad Co., 21 Minn. 497; Indianapolis & St. Louis Rail- road Co. V. Smythe, 45 Ind. 322; Penn- sylvania Railroad Co. v. Gorsuch, 84 Penn. St. 411; Robbins v. St. Paul, Stillwater, & Taylor's Falls Railroad Co., 24 Minn. 191; Chicago & West- ern Indiana Railroad Co. v. Prussing, 90 111. 203; Williams i'. New Orleans, Mobile, cSc Texas Railroad Co.. GO Miss. 089; Secorabe r. Railroad Co., 23 Wall. 108. Execution, form, entry, nunc pro tunc, stay. St. Louis, Lawrence, & Denver Railroad Co. v. Wilder, 17 Kan. 239; Lexington & St. Louis Rail- road Co. V. Mockbee, 03 Mo. 348; Harrisburg & Potomac Railroad Co. V. Peffer, 84 Penn. St. 295. Conuni.s- sioners may not amend record by in- serting names of new parties. Little- field )'. Boston & Maine Railroad Co., 65 ^le. 248. Verdict sufficiently cer- tain. Illinois Western Extension Railroad Co. c. Mayrand, 93 111. 591. [♦279J 296 EMINENT DOMAIN. [part III. 26. It has been decided that where land is taken for a railway, the owner is entitled to recover damages assessed, as of the time of taking, with interest thereon to the time of the assessment.^^ (ti) 8" Reed v. Hanover Branch Railroad Co., 105 Mass. 303. Must be for money and not for labor. New Orleans Pacific Railway Co. i'. Murrell, '^i La. An. 53G. Correction of verdict. St. Paul & Sioux City Railroad Co. v. Murphy, 19 Minn. 500. What finding sufficient. East Sagi- naw & St. Clair Railroad Co. v. Ben- ham, 28 Mich. 459. Appeal and Error, ^'c. — Taking of appeal and its effect as an appearance, waiving want of notice. Beckwith v. Kansas City & Olathe Railroad Co., 28 Kan. 481; Atchison, Topeka, & Santa Fe Railroad Co. v. Patch, 28 Kan. 470. Bond on appeal, when filed, what sufficient amendment, &c. Rippe ?'. Chicago, Dubuque, & Min- nesota Railroad Co., 22 Minn. 44; St. Louis, Lawrence, & Denver Railroad Co. V. Wilder, 17 Kan. 239; Nebraska Railway Co. v. Van Dusen, 6 Neb. 160; Sehna, Rome, & Dalton Railroad Co. V. Gamraage, 63 Ga. 604; Lovitt v. Willington & Western Railway Co., 26 Kan. 297. As to where certiorari will lie, &c., see California Pacific Railroad Co. v. Central Pacific Rail- road Co., 47 Cal. 528; Portland & Og- densburg Railroad Co. o. Commission- ers, 64 Me. 505; Schroeder v. Detroit, Grand Haven, & Milwaukee Railroad Co., 44 Mich. ;?87; Dunlap v. Toledo, Ann Arbor, & Grand Trunk Railway Co., 46 Mich. 390. As to what is open, Republican Valley Railroad Co. v. Hayes, 13 Neb. 489. Notice of appeal, how signed, how served, publication. East Saginaw & St. Clair Railroad Co. r. Benham, 28 Mich. 459; Haher v. Chicago, Omaha, & St. Joseph Rail- road Co.. 43 Iowa, 333; Weyer v. [*279] Milwaukee & Lake Winnebago Rail- road Co., 57 Wis. 329; In re New York Central & Hudson River Rail- road Co., 60 N. y. 112; Klein v. St. Paul, Minneapolis, & Manitoba Rail- way Co., 30 Minn. 451. Who may appeal, purchaser pending appeal. Bower r. Grayville & INIattoon Rail- road Co., 92 Rl. 223; Trogden i-. Win- ona & St. Peter Railroad Co., 22 Minn. 198; Connable v. Chicago, Milwaukee, & St. Paul Railway Co., 10 Am. & Eng. Railw. Cas. 520. Joinder of husband. Wilkin V. St. Paul, Stillwater, & Tay- lor's Falls Railroad Co., 22 Minn. 177. P^ffect of appeal to carry up the whole case. Phifer v. Carolina Central Railroad Co., 72 N. C. 433; Wooster v. Snp;ar River Valley Rail- road Co., 57 Wis. 311. Deposit by company pending appeal of sum found, and withdrawal of same. Toledo, Ann Arbor, & Grand Trunk Railway Co. V. Dunlap, 47 Mich. 456; Black- shire V. Atchison, Topeka, & Santa Fe Railroad Co., 13 Kan. 514; Weyer V. Milwaukee & Lake Winneb.ago Railroad Co., 57 Wis. 329. No re- versal for mere irregularity. Louis- ville, New Albany, & Chicago Railroad Co. V. Winderlick, 10 Am. & Eng. Railw. Cas. 410. Possession pending appeal. Central Branch Union Pacific Railroad Co. v. Atchison, Topeka, & Santa Fe Railroad Co., 28 Kan. 453: IVIettler v. Easton & Amboy Railroad Co., 25 N. J. Eq. 214. (») So held in Warren v. St. Paul & Pacific Railroad Co, 21 Minn. 424; Lafayette, INIuncie, & Bloomington Railroad Co. v. Murdock, 68 Ind. 137; §73.] TUE TIME COMPENSATION TO BE MADE. 297 * SECTION XL Time of makhuj Compensation. 1, 2. Compensation must prcceJe posses- eion. 8. So by tlie Code Napoleon. 4. Thus under most of tlie state constitu- tions it must be coneurrent witii the taking. 5. Otlierwise by the English cases. G. Adequate legal remedy sufficient ? 7. Payment, where required, is requisite to vest the title. 8. Some states liold that no compensation is requisite. § 73. 1. In general, railway acts require compensation to be made, before the company take permanent possession of the land.* And it has even been made a question, in this country, whether the Icgishiture could give a railway company authority to take IKTmancnt possession of lands, required for their use, previous to making or tendering or dc{)Ositing, in conformity with their charter or the general law, com})cn.salion for the same.^ (a) ^ Lands Clau.ses Consolidation Act, 8 Vict. c. IS, § 81 et acq.: Ramsden v. Manche.ster & South Junction & Altrincham Railway Co., 1 Exch. 723; s. c. 5 Railw. Cas. 552. In such cases courts of equity will enjoin the company from taking possession until compensation is made, unless the owner consent. Ross r. Elizabeth-Town & Sonierville Railroad Co., 1 (ireen Ch. 422. 2 Thompson v. Grand Gulf Railroad Co., 3 How. !Miss. 210. The consti- tution of the state, however, requires a previous compensation to be made. See also Cushman v. Smith, 34 Me. 247. Hampden Paint Co. v. Springfield, .\thol, & Northeastern Railroad Co., 124 Mass. 118; Logansport Railway Co. r. Buchanan, 52 Lid. 1G8. In Wisconsin, however, the value is that of the date of apj^raisement. Lyon I'. Green Ray & JNIinnesota Railway Co., 42 Wis. 538. hi general, interest should be al- lowed from the date of the award. Pigott V. Great Western Railway Co., Law Rep. 18 Ch. 140; ]Mettler v. Eas- ton & Amboy Railroad Co., 37 X. J. Law, 222; Drury v. Midland Railroad Co., 127 IMass. 571. So on appeal, where a larger sum is awarded. Warren v. St. Paul & Tacific Railroad Co., 21 Minn. 424; Selma, Rome, & Dalton Railroad Co. V. Gammage, G3 Ga. G04; Hartshorn r. Burlington, Cedar Rapids, & North- ern Railway Co., 52 Iowa, G13; Sioux City Railroad Co. v. Brown, 13 Neb. 317. But not when the damages are reduced. Reisner v. Union Depot Co., 27 Kan. 382. See Whitacre v. St. Paul & Sioux City Railroad Co., 24 Minn. 311 ; IMettler v. Easton & Amboy Rail- road Co., 37 N. J. Law, 222. In West r. Milwaukee, Lake Shore, & A\'estern Railway Co., 5G Wis. 318, it i.s held that on appeal damages should be assessed as of the date of the taking, and interest added from that time. (r?) Under the constitution pay- ment or security therefor must pre- [*280J 298 EMINENT DOMAIN. [PART III. 2. The learned and sensible author of the Commentaries on American Law ^ thus states the rule upon this subject : " The settled and fundamental doctrine is, that government has no right to take private property for public purposes, Avithout giving just compensation ; and it seems to be necessarily implied, that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concur- rently, in point of time, with the actual exercise of the right of eminent domain." 3. The language of the Code Napoleon* is specific upon this point : " No one can be compelled to give up his property except * for the public good, and for a just and previous indemnity." A similar provision existed in the Roman civil law, 4. It is embodied, in different forms of language, into the writ- ten constitutions of most of the American states, but not generally in terms requiring the indemnity concurrently with the appropria- tion. But practically that view has generally prevailed in the courts.^ 8 2 Kent Com. 310, 393, and note. Milwaukee & Mississippi Railroad Co. V. Eble, 4 Chand. 72; Cushman v. Smith, 34 Me. 247. 4 CodeXap., B. II. tit. II. 545. 5 Lyon V. Jerome, 26 Wend. 485, 497 ; Case v. Thompson, 6 Wend. 634, per Sutherland, J. In this case it was held, that it was not indispensable to the opening of a road over the land of an individual, that the price should be paid or assessed even, before the opening of the road. And iu Bonaparte cede possession. Colgan r. Allegheny jirohibition. And the undertaking of Valley Railroad Co., 3 Pittsb. 394; sureties in a bond to answer for dam- New Orleans & Sehna Railroad Co. ages is not just compensation within V. Jones, 68 Ala 48. And see Cham- the meaning of the constitution. Vil- bers V. Cincinnati Railroad Co., 10 hac v. Stockton & Tone Railroad Co., Am. & Eng. Railw. Cas. 376; Lee v. 53 Cal. 208. Full compensation must Northwestern Union Railway Co., 33 be maile in money paid or deposited. Wis. 222; Jamaica & Brooklyn Plank St. Jo.seph and Denver Railroad Co. Road Co. V. New York & Manhattan v. Callender, 13 Kan. 496. And it Beach Railway Co., 25 Ilun, 585. makes no difference that the land- Hence a statute authorizing the tak- owner has appealed, and on appeal ing for a railroad owned by the state recovered judgment. lb. And see of land to be paid for from earnings, Oregonian Railway Co. v. Hill, 9 Oreg. is unconstitutional. Connecticut River 377; .Sherman v. ^Milwaukee, Lake Railroad Co. i>. Fianklin County Com- Shore, & Western Railroad Co., 40 missioners, 127 Mass. 50. And such Wis. 645. taking may be prevented bv writ of [*281] § 73.] TIME OF MAKING COMPENSATION. 299 * 5. It was held in uuc case,*' where the act of jjarliament gave the right to taicc lands for the purpose of building a turnpikc- V. Camden & Amboy Railroad Co., 1 IJaldw. 20.j, 210, it was held, that a law tiiking private property without providing for compensation was not void, for it was said that compensation might be provided by a subsequent law. But the appropriation was enjoined, in that case, till compensation should be made. See also Gardner v. Newburgh, 2 Jolins. Ch. 162; Henderson v. New Orleans, r> La. 41G; Rogers v. Bradshaw, 20 Jolins. TS-j; Dl'NC.vn, J., in Eakin v. Raub, 12 S. & R. ;3.']U, ;JOG, 372; O'Hara v. Lexington Railroad Co., 1 Dana, 232; Hamilton v. Annapolis & Elkridge Railroad Co., 1 ]Md. Ch. 107; Ex parte Martin, 13 Ark. 198. In Bloodgood v. Mohawk & Ilud.son Railroad Co., 14 Wend. 51, it is held that this constitutional requirement merely contemplates a legal provision for compensation, and not that such property shall be actually paid for before taken, s. c. reversed, 18 Wend. 9; .s. c. 1 Redf. Am. Railw. Cas. 200. In Boynton v. Peterboro' & Shirley Railroad Co., 4 Cush. 4G7, SliAW, C. J., says, " Tiie right to damages for land taken for public use accrues and takes effect at the time of taking, though it may be ascertained and declared afterwards. That time in the case of railroads, prima facie, and iu the absence of other proof, is the time of the filing of the location." Charlestown Branch Railroad Co. v. Middlesex, 7 Met. 78; s. c. 1 Am. Railw. Cas. 383; Davidson v. Boston & Maine Railroad Co., 3 Cush. 91. In Massachusetts the remedy is limited to three years by statute, and the time begins from tiie filing of the location. Charlestown Branch Railroad Co. V. Middlesex County Commissioners, 7 Met. 78; s. c. 1 Am. Railw. Cas. 383; Boston & Providence Railroad Co. v. jMidland Railroad Co., 1 Gray, 340, 3G0; Drake i'. Hudson River Railroad Co., 7 Barb. 508, 552. By the Xew York statute of 1851, railway companies have no riglit to enter upon, occupy, or cro.ss a turnpike or plunk road without consent of the owners, except on condi- tion of first making compensation. Plank Road Co. v. Buffalo Railroad Co., 20 Barb. 044. In those states, where the constitutions contain express provisions requiring a previous compensation, as in Pennsylvania, Wisconsin, Kentucky, and Mis- sissippi, the decisions would not be much of an indication of the general rule. But .see Ilarrisburg v. Crangle, 3 Watts & S. 400. In some of the states, even where a concurrent right to compensation, with the appropriation of the land, is recognized, it seems to be considered that a statute, authorizing the appropriation of land for public uses, but making no provision for compensation, is not on that account unconstitutional. See Rogers t». Bradshaw, 20 Johns. 735. But the prevailing opinion even in New York, seems to be, that the statute « Lister v. Lobley, 7 A. & E. 124, Lord l)KN>t.\x says: "The amount of compensation cannot generally be ascertained till the work is done. The effect of the words in question is that they shall not do it without being liable to make compensation." It seems to have been supposed here, that if the com- pany did not make compensation it might be compelled to do so by mandamus. [*282] • 300 EMINENT DOMAIN. [PART III. road, * making or tendering satisfaction, that this need not be done before, or at the time of entering upon or taking the lands. 6. But this subject was largely discussed, in an early case in New York,' and finally determined by the court of errors reversing should provide some available remedy for adequate compensation, and that unless that is done, the act, if not positively unconstitutional, is so defective that no proceedings should be suffered under it, until compensation is secured, and that a court of equity should interfere. Gardner v. Newburgh, 2 Johns. Ch. 162; Rexford v. Knight, 11 N. Y. 308; Willyard v. Hamilton, 7 Ham. 449, Rubottom v. IVIcCluer, 4 Blackf. 505; McCormick v. Lafayette, Smith, Ind. 83 ; Mercer v. Mc Williams, Wright, 132. Respecting the necessity for a previously ascertained and concurrently available compensation, some cases distinguish cases where the property is put to the use of the state directly, and hold that such compensation is not indis- pensable. Young i\ Harrison, 6 Ga. 130. The grant of the right to bridge a navigable river, or arm of the sea, or to obstruct the flow and reflow of the tide on the flats of private persons, although it may abridge their beneficial use, is not such an invasion of private property as to entitle the party to compensation. It is but the regulation of public rights, and if private persons thereby suffer damage it is damnum absque inju- ria. Davidson v. Boston & Maine Railroad Co., 3 Cush. 91. See, also, Zim- merman V. Union Canal Co., 1 Watts & S. 346; Philadelphia & Reading Railroad Co. i'. Yeiser, 8 Penn. St. 3G6; 2 Am. Raihv. Cas. 325; Common- wealth V. Fisher, 1 Penn. 462; supra, § 63. But it is very generally held, that in the absence of all express provision by statute in regard to the time when compensation shall be made, the party is at all events entitled to have it ascertained and ready for his acceptance, concurrently with the actual appropriation of the estate to public use, and that he is not obliged to wait till the work is completed. People v. Hayden, 6 Hill, N. Y. 359; Baker v. Johnson, 2 Hill, N. Y. 342. But in most of the states, no right to compensation vests in the land-owner till the acceptance and confirmation of the appraisal by the proper tribunal, and until then, the company may change the location of the road, and aban- don proceedings pending against land-owners, on the first surveyed route, by paying costs already assessed. Hudson River Railroad Co. i'. Cutwater, 3 Sandf. 689. And where the statute provides that no valuation of property taken for railway and canal purposes need be made before taking possession of the same, in those cases where the property is not obscured, so that its value can- not be judged of, there should be no unreasonable delay in having the valu- ation made. Compton v. Susquehanna Railroad Co., 3 Bland, 386. ^ Bloodgood V. Mohawk & Hudson Railroad Co., 14 Wend. 51 ; s. c. 18 Wend. 9, 59; s. c. 1 Redf. Am. Raihv. Cas. 209. See, also, on this subject, Fletcher V. Auburn & Syracuse Railroad Co., 25 Wend. 462; Smith v. Helmer, 7 Barb. 416; Pittsburgh v. Scott, 1 Penn. St. 309; Peoples. Michigan Southern Rail- road Co., 3 Gibbs, 496. In this case it is said the party who makes no appli- [*283] 73.] TIME OF MAKING COMPENSATION. oOl • the judgment of the court below, that if provision was made for compensation in the act giving power to take tlie lands, it was not cation for compensation for many years should be regarded as having waived all claim. lb. 50G. See, also, Smith v. McAdam, 3 Gibbs, 500. A statu- tory provision for a deposit of the value of the land before entry, is a provision for the security of the land-owner, and may be waived; and if entry is made without making the deposit, the owner may recover the assessment in an aciiun of debt. Smart v. liailroad Co., 20 X. II. 233. But in one case it was held indispen.sable to the validity of the power, that the party, who.se land was taken, should have something more than a right of action for the value of his land. Shepardson v. Milwaukee & Beloit Railroad Co., Wis. 605. See Powers v. Bears, 12 Wis. 213; Ford v. Chicago & Xorthwestern Railway Co., 14 Wis. 009. By the construction of the statute of Maine, a railway corporation, as soon as the track is located, may take immediate possession, and the land-owner, failing to agree with the company as to the amount of damages, may apply to the courts to have the same assessed, and thereupon the company must pay or give security for the same, and right of possession is suspended until the re- quirement is complied with; but no action of trespass lies in such ca.ses. Davis r. Russell, 47 ^le. 443. Where by statute a bond is required to be filed by the company to secure damages to the land-owner, on failure of the parties to agree on the amount, such bond extends to all the lawful damage caused to the owner by the construction of the company's works; and the fact of its be- ing .approved and ordered to be filed is presumptive proof that the parties liad failed to agree. A\'adhams v. Lackawanna & Bloomsburg Railroad Co., 42 Penn. St. 303. But in most of the states the assessment of the damages due to the land- owner, and the payment, tender, or deposit of the same, is held a condition precedent to the right of entry, and the company entering before compliance therewith will, prima facie, be regarded as trespassers. Memphis & Charleston Railroad Co. v. Payne, 37 Miss. 700; Henry v. Dubuque & Pacific Railroad Co., 10 Iowa, 510; Evans r. Ilaefner, 2!) Mo. 141; Burns c. Dodge, 9 Wis. 4.")S. In McAulay v. Western Vermont Railroad Co., 33 Vt. 311; s. c. 1 Redf. Am. Railw. Cas. 245, 'it was decided that the payment of land damages was a condition precedent to the acquiring of title ; but that where the land-owner acquiesces in occupation without prepayment on a contract or understanding for future payment, and the road is constructed and put in operation, he can- not afterwards, on failure to obtain payment, maintain trespass or ejectment for the land. And whether, under such circumstances, he would still retain an equitable lien on the land, seems doubtful. The mere prosecution of a controversy before commissioners or on appeal, as to the amount of the dam- ages, is not such a prohibition of the taking of the land without prepayment as is necessary to enable the owner to maintain trespass or ejectment after the road is put in operation. Nor will notice to the laborers on the railway em- ployed by the contractor be considered as sufficient to entitle the owner to maintain trespass or ejectment against the company, the corapanv "ot being [*284] 302 EMINENT DOMAIN. [PAUT III. indispensable that the amount should be actually ascertained and paid bcfure the appropriation of the j)roperty. 7. In Mississippi it is required, by the constitution of the state, that the compensation be paid before the right to use the land is vested.^ So also in Georgia the title does not vest in the company until the ascertained compensation is paid or tendered.^ (/>) A affected by such notice. In Dayton Railroad Co. v. Lawton, 20 Ohio St. 401, where the defendant agreed to convey the right of way through on payment of the agreed price, and tlie company entered before payment, it was held that the landowner had a lien on the Land for the unpaid purchase-money, which could be enforced by the sale of the whole road. In Jersey v. Briton Ferry Floating Dock Co., Law Rep. 7 Eq. 409, it was held that the owner, after the construction of the works, had no lien on the lands for payment of a rent-charge. WiCKENS, Vice Chancellor, said the enforcement of such a lien by entry oa the land would be contrary to any probable intention of the parties. But in Winchester i'. Mid-Hants Railway Co., Law Rep. 5 Eq. 17, the court held that where railway companies had been allowed to build across lands on promise of payment of agreed damages in six months after the completion of the works, the vendor's lien might be enforced against the companies by ap- pointing a receiver, or in any other proper manner. See, also, Munns v. Isle of Wight Railway Co., Law Rep. 8 Eq. 653, where the Vice-Chancellor said the land-owner, after having obtained a decree for payment of land damages, had the right to say to the company, " pay me the purchase-money or give ine back my property." 8 Stewart v. Raymond Railroad Co., 7 Sm. & M. 568. See also Thompson r. (irand Gulf Railroad Co., 3 How. Miss. 240. 3 Doe V. Georgia Railroad Banking Co., 1 Kell}-, 524. (Ji) So in Indiana under the consti- of compensation. Redman v. Phila- tution of 18.")6. And thence it follows delphia, Marlton, & Medford Railroad that it is the duty of the company Co., 33 N. J. Eq. 165. So of a statute to commence the proceedings for the authorizing entry upon tender pending as.sessment of damages. Cox y. Louis- appeal, without awaiting the issue, ville. New Albany, & Chicago Rail- Watson v. Pittsburg & Connellsville road Co., 48 Ind. 178. But see iufm, Railroad Co., 2 Pittsb. 99. And a stat- § 96, note (a). So payment is a con- utory provision to enable the court to dition precedent under the constitution permit the company to take possession of Kansas; and a judgment unpaid pending proceedings to condemn, with- and unsecured will not suffice. Pryz- out providing compensation for use bylowicz v. Missouri River Railroad and waste, is also unconstitutional. Co., 3 iMcCrary, 586. A statute per- Davis i\ San Lorenzo Railroad Co., mitting entry on payment pending ap- 47 Cal. 517; California Pacific Rail- peal of the amount awarded into the road Co. v. Central Pacific Railroad court of the county where the land lay, Co., 47 Cal. 528. But in New Jersey, was held unconstitutional, as not re- under the act of 1873, the company quiring precelent payment or tender may take possession pending an ap- [*284] § 73.] TIME OF MAKING COMPENSATION. 303 .similar decision was made by the .Supreme Court of the United States,^^ where the charter of the company provided that the pay- ment, or tender, of the valuation should vest the estate in the company, as * fully as if it had been conveyed. And a similar decision was also made by the Supreme Court of Vermont. ^^ 8. In one case in North Carolina,!^ it was held that compensa- tion need not be made prior to appropriatint^- land for public use. riie constitution of the state is said to contain no prohibition against taking private property for public use, without compensa- tion. And the same is true of the constitution of South Carolina. And the latter state held ^^ that private property might be taken without compensation. But this decision is certainly at variance with the generally received notions upon that subject, since the jicriod of the Roman Empire. ^" Baltimore & Susquehanna Railroad Co. v. Nesbit, 10 ITow. 395. " Stacey v. Vermont Central Railroad Co., 27 Vt. 39. The opinion of Isiiam, J., in this case, shows the correlative rights of the company and landowner, and by what act the right of each becomes perfected. Where the statute re- quires the company to contract in writing, it is not competent to show title in any other mode, unless by formal conveyance. Ilarborough v. Shardlow, 2 Kailw. Cas. 253; s. c. 7 M. & W. ST. In Graff v. Baltimore, 10 Md. 514, it was held, under a statute to enable the city to supply pure water, and to take land on valuation by a jury and compensation to the owners, which provided tiiat where "such valuation is paid, or tendered, to the owner or owners" of the property, it " shall entitle the city to the use, estate, and interest in the same, thus valued, as fully as if it had been conveyed by the owners; " that the city was not bound by the mere inquisition and judgment thereon, but could right- fully abandon the location ; and that payment, or tender, under the statute, was indispensal)le to the vesting of the title. But it was held, that the city might be made liable, in another form of proceeding, to the land-owner, for any loss or (hiinage he might have sustained, by reason of the conduct of the municipal authority in the premises. '•- Raicigh & Gaston Railroad Co. v. Davis, 2 Dev. & Bat. 151. But in New Jersey it was held that the supervisors, in laying out roads, were bound to award damages to land-owners, with their return, and that if they did not the whole proceeding would be illegal and void. State v. Garretson, 3 Zab. 388. '' State V. Dawson, 3 Hill S. C. 100. In this case Mr. Justice Riciiardsox dissents from tlie decision of the court, and it is generally allowed that his opinion states the law. See 2 Kent Com. 339, note (/). See Louisville Rail- road Co. V. Chappcll, 1 Rice, 383; Lindsay i\ Commissioners, 2 Bay, 38. peal on payment or tender pursuant road & Coal Co., 68 111. 2SG, where it to the act. fiercer & Somerset Rail- is held that possession may be taken way Co. 26 X. J. Eq. 464. And see pending appeal, under the act of 1852, Mitchell V. Illinois & St. Louis Rail- on giving of a bond. [*2S51 804 EMINENT DOMAIN. [part III, *SECTION XII. Appraisal includes Consequential Damages. 1. Appraisal bars claim for consequential damage. 2. Damage, for instance, by blasting rock. 3. But not damage by tiie unnecessary using of other land. 4. Loss by fires, obstruction of access, and cutting off of springs, barred. 5. But not loss by flowing land. Damages, from not building on the plan conteniplated, are barred. Special statutory remedies reach sucli damages. Exposure of land to fires not to be considered. No action lies for damage sustained by the use of a railway. § 74. 1. It is requisite that tlie tribunal appraising land dam- ages for lands condemned for railways, should take into consid- eration all such incidental loss, inconvenience, and damage, as may reasonably be expected to result from the construction and use of the road, in a legal and proper manner. And as all tribunals, hav- ing jurisdiction of any particular subject-matter, are presumed to take into consideration all the elements legally constituting their judgments, such incidental loss and damage will be barred by the appraisal, whether in fact included in the estimate or not. (a) (rt) Consequential damages caused by acts duly authorized, necessary to the exercise of the franchise, and performed with due care and skill, are not to be considered, although they lessen the value of property, — damages e.g., from noise, smoke, cinders, &c. Cogswell V. Xew York, New Haven, & Hartford Railroad Co., 48 N. T. 31. The inconvenience resulting from the division of a farm, separation of wood or water from the rest of the farm, &c., is matter for compensation. Chicago & Iowa Railroad Co. v. Hop- kins, 90 111. 316; Hartshorn r. Bur- lington, Cedar Rapids, & Xorthern Railway Co., 52 Iowa, G13; Bourn v. Atlantic Railroad Co., 17 S. C. 574; Tucker v. ]Massachusetts Central Rail- road Co., 118 !Mass. 546; Peoria, Atlanta, & Decatur Railroad Co. v. Sawyer, 71 111. 361; Parks v. Wis- [*286J cousin Central Railroad Co., 33 Wis. 413. So is the inconvenience of having one's land temporarily throwa open while construction of the road is going on. St. Louis, Jersey ville, & Springfield Railroad Co. v. Kirby, 104 111. 345. So is damage from mere sev- erance. Galena & Southern Wiscon- sin Railroad Co. v. Birkbeck, 70 III. 208; St. Louis, Arkansas, & Texas Railroad Co. r. Anderson, 39 Ark. 167; McReynolds r. Baltimore & Ohio Rail- way Co., 106 111. 152; Old Colony Railroad Co. v. Miller, 125 Mass. 1; Harrison v. Iowa Midland Railroad Co., 36 Iowa, 323. So is damage to growing crops. Lance v. Chicago, Milwaukee, & St. Paul Railroad Co., 57 Iowa, 636. Or to an orchard. Selma, Rome, & Dalton Railroad Co. V. Redwine, 51 Ga. 470. So is dam- age resulting from interference with § 74.] APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 305 2. Ilcncc damage done by the contractors to the remaining liiml, by blasting rocks, in the course of construction, has been held to be barred, as included in the estimated compensation for the land taken. ^ ' Dodge I'. County Commissioners, 3 Met. 380; 8. c 1 Redf. Am. Railw. Cas. 279; Sabin v. Vermont Central Railroad Co., 25 Vt. 3G3 ; 8. c. 1 Redf. Am. Railw. Cas. 282; Dearborn v. Boston, Concord, & ^lontrcal Railroad Co , 4 Fost. N. II. 171>, 187; Whiteliouse v. Androscoggin Railroad Co., 52 Me. 208. But in Hay v. Cohoes Co., 2 Comst. 159, a company dug a canal on it.s own land, for the purposes authorized by the charter. In .so doing, it was necessary to blast rocks, and the fragments were thrown against and injured the plaintiff's dwelling, on land adjoining, and it was held that tlie company was liable to a special action for the injury, althougii no negligence or want of skill was alleged or proved; and in Tremain r. Cohoes Co., 2 Comst. 1G3, a precisely similar action, it was held that evidence to show tl.at the work was done in the most careful manner was inadmissible, there being no claim for exemplary damages. But there is probably an essential difference between the case of a railway in the construction of which blasting rocks is almost indis- pensable, and that of a manufacturing company, or other proprietor, who may find it convenient to blast rocks on his premises, to increase their utility or beauty. But for doing what the act does not authorize, or doing improperly what it does authorize, a railway company is liable to an action. Turner v. Sheffield & Rotherham Railroad Co., 10 U. & W. 425. In Carman r. Steuben- ville & Indiana Railroad Co., 4 Ohio St. 399, it seems to be taken for granted, tliat throwing fragments of rock, by blasting, on the land of adjoining pro- prietors, is an actionable injury. Tlie result of the cases would seem to be, that where the damage done by blasting rocks, or the like, in the construction of a railway, is damage to land, a portion of which is taken by the company under Compulsory powers, it will not lay the foundation of an action iu any form, as it should be taken into account in estimating the compensation to the land-ownor for the land taken. Brown i>. Provinence, Warren, & Bristol Railroad Co., 5 Gray, 3.'). And if not included in the appraisal, it is nevertheless barred. Dodge r. County Commis- sioners, supra. But if the damage is to land, no part of which is taken, and where no land of the same owner is taken, it may be recovered, under the stat- the flow of surface water. Pflegar v. Augusta Railroad Co. r. Wicker. 71 Hastings & Dakota Railway Co., 28 N. C 220; Penn.sylvania & New York Minn, 510; Hardman r. Northeast- Railroad Co. v. Bunnell, 81 Penn. St. ern Railway Co., Law Rep. 3 C. P. 414; Leavenworth, Topcka, & South- 168. So is damage by way of in- western Railroad Co. r. Paul, 28 Kan. creased difficulty in renting. Pitts- 81G; Baltimore, Pittsburg, & Chicago burg, Virginia, & Charleston Railroad Railroad Co. v- Lansing, 52 Ind. 229; Co. V. Rose, 74 Penn. St. 302. The New York & Greenwood Lake Railway necessity for additional fences is also Co. v. Stanley, 35 N. J. Kcj. 283. an element of damage. Raleigh & VOL. 1.-20 [*286] 306 EMINENT DOMAIN. [PART III. * 3. But it was held that this did not preclude the land-owner from recovering damages for using land adjoining the land taken * for a cart-way, where six rods were allowed to be taken by the company throughout the line of the road, which would give ample space for cart-ways upon the land taken.^ But it was held, in another case, that the company were not liable for entering upon the adjoining lands, and occupying the same with temporary dwell- ings, stables, and blacksmith shops, provided no more was taken than was necessary for that purpose.^ 4. So it is settled that the appraisal of land damages is a bar to claims for injuries by fire, from the engines obstructing access to buildings, exposing persons or cattle to injury, and many such risks.* (i) And it will make no difference, that the damages were «te, if provision is made for giving compensation for consequential damage, or where lands are " injuriously affected." But if the statute contain no such provision, the only remedy will be by a general action. And in this view many of the cases cited above seem to assume, that blasting rocks, by an ordinary pro- prietor of land, is a nuisance to adjoining proprietors if so conducted as to do them serious damage. And this is the ground on which the case of Carman v. Steubenville & Indiana Ilaih'oad Co., is decided, without much examination of this point, indeed, and by a divided court. But if a railway is not liable for necessary consequential damage, unless the statute gives a remedy {infra, § 75), it may perhaps be questioned how far a recovery could be maintained, in a gen- eral action for damage done by blasting rocks, as that is confessedly within the range of their powers. See Dodge v. County Commissioners, 3 Met. 380, per SiiAW, C. J., where it is said that an "authority to construct any pub- lic work carries witli it an authority to use the appropriate means." See also Pottstown Gas Co. v. Murphy, 39 Penn. St. 257; Whitehouse v. Andros- coggin Railroad Co., 52 Me. 208. In the latter case it was held that the dam- age resulting to the land-owner, for not removing the stone thrown upon land adjoining that taken, could not be considered in estimating damages, since it was presumable that the company would remove them in proper time, accord- ing to its duty; and, if it did not, the remedy would be by special action. 2 Sabin v. Vermont Central Railroad Co., 25 Vt. 3G3 ; s. c 1 Redf. Am. Railw. Cas. 282; Eaton v. European & North American Railway Co., 59 Me. 520. 2 Lauderbrun v. Duffy, 2 Penn. St. 398. But it seems questionable whether the rule laid down here can be maintained. If, however, a party is entitled to compensation for injuries of this kind, as where his lands adjoining a railway are injuriously affected, as by blasting rocks, his only remedy is under the statute. Dodge v. County Commissioners, 3 ^let. 380. * Philadelphia & Reading Railroad Co. v. Yeiser, 8 Penn. St. 366; but (b) As to damage by interference way public or private, see Caledonian with the means of access through a Railway Co. v. AValker, Law Rep. 7 [*287, *288] § 74.] APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 307 not known to the appraisers, or capable of anticipation at the time of assessing land damages;^ as where a spring of water is cut off by an excavation for the bed of a railway fifteen feet below (he surface, from which the plaintiff's buildings had been supplied with water. * 5. But it was held, that where, in the construction of a canal, with waste weirs, erected by direction and under the inspection of the commissioners appointed to designate the route of the canal, with all the works connected therewith, and to appraise damages, the waste water, after flowing over the land of adjoining proprietors, flowed upon the land of the plaintiff, and thereby greatly injured it, that he w^as entitled to recover damages.* this is regarded as overruled by Lehigh Valley Railway Co. v. Lazarus, 28 Peiin. St. 2(13; s. c. 2 Am. Raihv. Cas. 325; Aldrich v. Cheshire Railroad Co., 1 Fost. N. IL, S.JQ; s. c. 1 Am. Raihv. Cas. 200; ftLason i'. Kennebec & Tort- land Railroad Co., 31 ^le. 215. See also Fiuniss r. Hudson River Railway Co., 5 Sandf. 551 ; Huyett v. Philadelphia & Reading Railroad Co., 23 Penn. St. 373; supra, §§ 71, 72. See also Lafayette Plank-Road Co. v. New Albany Railroad Co., 13 Ind. 00. The land-owner can claim no additional damages because the company moves its track in the street nearer to the land than it was at first laid. Snyder r. Pennsylvania Railroad Co., 55 Penn. St. 310. * Aldrich r. Cheshire Railroad Co., 1 Fost. N. H. 350. But see Lawrence f. Great Northern Railway Co., IG Q. B. G43 ; s. c. 4 Eng. L. & Eq. 2G5. So, also, where the company's works cut off a spring of water below high- water mark, on a navigable river, the riparian owner is entitled to damages on that account, in a proceeding under tiie statute. Lohigh Valley Railroad Co. r. Trone, 28 Penn. St. 206. * Hooker v. New Haven & Northampton Co., 14 Conn. 140; s. c. 15 Conn. 312. But in such case, the owner of property overflowed by water, through the defective construction of a railway, is bound to use reasonable care, skill, and diligence, adapted to the occasion, to arrest the injury; and if he do not, notwithstanding the first fault was on the part of the company, he must bo regarded as himself the cause of all damage, which he might have prevented by the use of such care, diligence, and .skill. Chase v. New York Central Railroad Co., 24 Barb. 273. See Lemraex v. Vermont Central Rail- road Co. See also infra, § 191. The assessment of compensation for land taken for a railway covers all dam- ages, whether foreseen or not, and whether actually estimated or not, which result from the proper construction of the road. P>nt the company is liable to an action for damages resulting to any one from the defective construction of Ap. Cas. 259. As to damage by water, see Drury v. Midland Railroad interference with the means of access Co., 127 Mass. 571. to a portion of a flat through tide- [*289] 308 EMINENT DOMAIN. [PART III. But the occasional flow of land by water, caused by public works, is to be estimated as part of the damages under the English statute." 6. And where the appraisal of land damages is reduced below what it otherwise would have been, by the representations of the agents of the company that the road would be constructed in a particular manner, made at the time of the appraisal to the com- missioners, * and which representations are not fulfilled in the actual construction of the road, whereby the plaintiff sustained serious loss and injury, it was held, that the adjudication of the commissioners was a merger of all previous negotiations upon the subject, and that no action could be maintained for constructing the railway contrary to such representations, provided it was done in a prudent and proper manner.^ 7. But where no part of the plaintiff's land is taken, and the statute gives all parties suffering damage by the construction of railways the right to recover, as in England and some of the American states, and the water is drawn off from plaintiff's well upon lands adjoining the railway, he may recover.^ So, too, may the road, tbe want, e. g., of suitable bridges and culverts to convey the water across the railway, at or near the places where it naturally flows (such being necessary to the proper construction of the road), except where they cannot be made, or where the expense of making them is greatly disproportionate to the interests to be preserved by them. Johnson v. Atlantic & St. Lawrence Railroad Co., 3-5 X. H. 5G9. T Ware v. Regent's Canal Co., 3 De G. & J. 212. 8 Butman v. Vermont Central Railroad Co., 27 Vt. 500. See also Rail- road Co. !'. Washington, 1 Rob. 67; Baltimore & Susquehanna Railroad Co. v. Compton, 2 Gill, 20, 28; supra, § 71; Kyle v. Auburn & Rochester Railroad, 2 Barb. Ch. 489. But see Wheeler v. Rochester & Syracuse Railroad Co., 12 Barb. 227, where it is held that a railway company will be enjoined from building a road-crossing at a different place from that named at the time dam- ages were assessed. But it has been held that the company may show, by experts, the necessity of putting a culvert through an embankment, at a par- ticular point, in order to preserve the work, as an answer to a claim for dam- ages on account of the prospective obstruction of the water, and setting it back upon the land at that point. But it should be shown that such culvert is absolutely indispensable, before any deduction can be made on that account, unless the company is in some legal way bound to make it. The company is not estopped from proving this necessity because the plat of the location of the road does not indicate a culvert at that point. Nason v. Woonsocket Union Railroad Co., 4 R. I. 377; infra, § 93. 9 Parker v. Boston & Maine Railroad Co., 3 Cu.sh. 107. [*290] § 74.] APPRAISAL INCLUDES CONSEQUKNTIAL DAMAGES. 309 the proprietor of a mill-pond recover damafrcs, sustained by the const ruction of a railway across the same, although the dam was authorized by the legislature, upon a navigable river; and in con- structing it, the conditions of the act were not complied with.^** 8. But it has been held that the appraisers are not to estimate increased damages to a land-owner in consequence of the ex()o- sure of the remaining land to lires by the company's engines.'^ (c) 10 White V. South Shore Raih-oad Co., G Cush. 412. " Suiibury & Erie llaihoad Co. t;. Hummel, 27 Penn. St. 99, Lewis, C. J., and Black, J., dissenting. The general current of authority seems to be with the minority of the court. It has been held that the appraisers of lands are to consider, in estimating the damage done to the owner, the depreciation in value to his estate caused by the proximity of the railway, so far as it is brought about solely by rea.son of taking the land. Walker v. Old Colony & Newport Railway Co., 103 Mass. 10. And the turning of surface water by reason of a railway embankment is also to be considered in estimating the damages to the owner of the estate. lb. See also Presbrey v. Old Colony & Newport Railway Co., 103 ]\Iass. 1. But in trespass against a company for con- structing its road through plaintiff's land, the preventing of his cattle from thriving, is not so remote a consequence of the act charged that it may not be made a ground of damage. Baltimore & Ohio Railroad Co. y. Thompson, 10 Md. 70. The ground assumed by the court in Pennsylvania is, that an injury to buildings, standing near the line of a railway, by fire from the company's engines, when properly constructed and prudently managed, is too remote and uncertain to form an element in estimating damages to the land-owner, either when part of the land is taken, or the statute provides for damages to all per- sons " injuriously affected " by the company's works. There is an embarrass- ment attending all attempts to define the class of injuries which do, or which do not, come within the rule of legal consequential injuries, by the construction or operation of railways. But it seems important to distinguii-h between a railway, as one of the legitimate u.ses to which the proprietor of land may put it, for the purpose of private transportation, and on which he might no doubt use locomotive steam-engines, and the use of such engines on a public railway. In the former case the land-owner would not be liable to an adjoining proprie- tor except for want of care, skill, or prudence in the construction or use of Jus engines. The same would probably be true of a public company, if the legis- lature did not subject it to any consequential damage resulting from the nature of the business. But where they are, as in England, and many of the Ameri- can states, made liable, either as part of the price of land taken or as a distinct (r) Lance r. Chicago, Milwaukee, under special statute, Swinney v. Fort &St. Paul Railroad Co., 57 Iowa, G3G. Wayne, Muncie, & Cincinnati Rail- But see contra, Colvill v. St. Paul & road Co., 59 Ind. 205; Lafayette, Chicago Railway Co., 19 Minn. 2S3; Muncie, & Bloomington Railroad Co. Addeu V. White ^Mountains Railroad i-. Murdock, GS Ind. 137. Co., 55 N. II. 413 ; and, in Indiana, [*200] 310 EMINENT DOMAIN. [PART III. * Nor can any common-law action be sustained for such damage unless where actual loss intervenes through the negligence of the company. * 9. In an English case ^^ it was held, after extended argument ground of claim, to all consequential damage caused to the land-owner, by both the construction and the operation of their roads or either of them, in a prudent and proper manner, it seems difficult to escape the conclusion, that the exposure of property along the line of a railway to loss by fires communicated by the company's engines, is one of the most direct sources of consequential injury which can be imagined. It is more direct and substantial than that from noise, dirt, dust, smoke, and vibration of the soil, all of which, under circumstances, have been held proper elements of damage to be considered. Perhaps none of them are absolute grounds of damage in all cases. That depends very much on the nearness of the track to the land ; and other circumstances may perhaps deserve consideration, in many cases. But where the track passes directly through lands, near where buildings are already erected, it is difficult to con- jecture on what ground it could be claimed that the increased exposure to fire was not a serious detriment to the owner. It is certain it must very seriously enhance the rate of insurance, and proportionally diminish the value of the rent, and of the buildings. As was said by Shaw, C. J., in Locks & Canals Proprietors v. Nashua & Lowell Railroad Co., 10 Cush. 385, it is incumbent on one who claims damage on this ground to show that tlie company's track ran so near his buildings " as to cause immitient and appreciable danger by fire." When it is undertaken to be decided, as a question of law, that in no case is danger from fire, by the proper use of the company's engines, to be considered in estimating land damages, it is certainly contrary to the general course of decisions upon the subject, if not to the very principle upon which such com- panies have been subjected to such damages as they cause to land-owners, be- yond what accrues from tlie ordinary use of lands for building and agricultural purposes. These decisions in Pennsylvania are still maintained there, and the rule has been applied to the case of buildings where the owner is compelled to pay a higher rate of insurance in consequence of the proximity of the railway. Patten v. Northern Central Railroad Co., 33 Penn. St. 42G. It is here main- tained that any claim for damages in consequence of the mere intrusion of noise and bustle upon one's seclusion is essentially antisocial, and at war with the fundamental laws of society, which we should not be inclined to question. And as to all mere conjectural or contingent advantages and disadvantages, it may well be said they are too remote to form an element in estimating laud damages. Searle o. Lackawanna Railroad Co., 33 Penn. St. 57. But we cannot admit that either of these rules has any just application to exposure to fire from the company's engines, where the daTiger is certain and inevitable. I'^fra, § 82. 12 Brand v. Hammersmith & City Railroad Co., Law Rep. 2 Q. B. 223; s. c. 12 Jur. N. s. 336; s. c. affirmed in House of Lords by a majority of the law lords. Lord Cairns and a majority of the judges dissenting, 18 W. R. 12; Law Rep. 4 H. L. 171. See also Lafayette Plank- Road Co. v. New Albany Rail- road Co., 13 Ind. 90. [*291, *292] §'5.] ACTION FOR CONSEQUENTIAL DAMAGES. 311 and careful consideration, that the owner of a house situated close to a i-aihvay, and wliich suffers deprti^iation in value from vibration and smoke, not caused by any negligent use of tlic railway, but being the inevitable result of the ordinary use, has no right to compensation under the English statute or by dis- tinct action at law. The case is put upon the ground that the legislature having legalized the use of locomotive steam-engines by railway companies, adjoining proprietors must submit to the incvitahle consequences of a lawful business, however inconvenient it may become ; and can sustain no action for damages any nnjro than for the exercise of any other legal business which might depreciate the value of property in the neighborhood. The Eng- lish statutes are construed to give compensation only for injuries sustained by the construction and not by the use of a railway. •SECTION XIII. Action for Consequential Damages. 1. Statute remedy for lands " injuriously affected. " 2. Without statute an action will not lie. 3. But otlicrwise for negligence in con- struction, or use. 4. Statute remedy exclusive. 5. Minerals reserved. Working of mine prevented. 6. Damages for taking land of railway for highway. 7. Compensation for minerals, when re- coverable. § 75. 1. The liability of railways for consequential damage to the adjoining land-owners must depend upon the provisions in tiicir charters, and the general laws of the state. In England railway companies are, by express statute,^ made liable to tho owners of all lands " injuriously affected " by their railways. And under this statute it has been determined, that if the com- pany do any act, which would be an actionable injury without the protection of the special act of the legislature, they are liable under the statute.^ So that, there, any act of a railway company amounting to a nuisance in a private person, and causing special 1 Statute 8 & 9 Vict. c. 8, § GS. 2 Glover v. North Staffordshire Raihoad Co., IG Q. B. 912; a. c. 5 Eng. L. &Eq. 335; infra, § 82. [*293] 312 EMINENT DOMAIN. [PART III. damage to any particular land-owner, is good ground of claiming damages under this section of the statute.-'^ (a) 2. But in the absence of all statutory provision upon the subject, railways arc not liable for necessary consequential damages to land-owners, no portion of whose land is talccn, where they con- struct and operate their roads in a skilful and prudent manner.* " Hatch V. Vermont Central Railroad Co., 25 Vt. 49; s. c. 1 Redf. Am. Railw. Cas. 28.5; see infra^ § 82. ■* Monongahela Navigation Co. v. Coons, 6 Watts & S. 101 ; Radcliff v. Brooklyn, 4 Comst. 19.5; Philadelphia & Trenton Railroad Co., 6 Wliart. 25; Seneca Road Co. v. Auburn & Rochester Railroad Co., 5 Hill, N. Y. 170; Hatch r. Vermont Central Railroad Co., 25 Vt. 49; Richardson v. Vermont Central Railroad Co., 25 Vt. 465; Arnold v. Hudson River Railroad Co., 49 Barb. 108 ; Cleveland & Pittsburg Raih'oad Co. v. Speer, 56 Penn. St. 325. And even such acts of a railway company as might have been taken into account in estimating land damages, will afford no ground of action against the company. Pitts- burg, Fort Wayne, & Chicago Railroad Co. v. Gilleland, 56 Penu. St. 445. There are many other cases confirming the same general view stated in the text. Heniy v. Pittsburgh & Alleghany Bridge Co., 8 Watts & S. 85; Can- andaigua & Niagara Railroad Co. v. Payne, 16 Barb. 273, where it is held, that injury to a mill on another lot of the same land-owner, in consequence of the construction and operation of the railway, is a matter with which the com- missioners have nothing to do in estimating damages for land. So in Troy & Boston Railroad Co. v. Northern Turnpike Co., 16 Barb. 100, it was held that the consideration that the business of a turnpike, which claimed damage, would be diminished by the construction of the railway along the same line of travel, should be disregarded in estimating damage to such turnpike. " Every public improvement," say the court, " must affect some property favorably, and some unfavorably, from the necessity of the case. When this effect is merely consequential the injui-y is damnum absque injuria. Though their property has undoubtedly depreciated by the construction of the railway, yet the turnpike company enjoy all the rights and privileges secured to them by their charter, and no vested rights have been violated." Nor is one entitled to damage, in consequence of a highway being laid upon his line, thus compelling him to maintain the whole fence. Kennett's Peti- tion, 4 Fost. N. II. 139. In Albany Northern Railroad Co. v. Lansing, 16 (a) Thus, in Hopkins v. Great & Mississippi River Railroad Co., 33 Northern Railway Co., Law Rep. 2 Wis. 629, it was held that the com- Q. B. 224, it was held that a company pany was liable for damage done to was not liable to the owner of an an- mill property by rendering it unsafe cient ferry for loss of traffic consequent for the storage of lumber, through con- upon the erection of a bridge with a struction of road over other lots accessi- footway erected to provide for a new ble through the public streets and used traffic. But in Chapman v. Oshkosh in connection with the mill property. [*293] § 75.] ACTION FOR CONSEQUENTIAL DAMAGES. 313 * 3. But if the railways arc guilty of imprudence, or want of skill, either in the construction or use of their road, they are liable * to any one suffering special damage thereby,'' as in needlessly Barb. G8, it is said, " The commissioners, in estimating the damages, should not allow consequential and prospective damages." Ill riant V. Long Island Railroad Co , 10 Barb. 20, it is held not to be an illegal use of a street to allow a railway track to be laid on it, and that the temporary inconvenience to which the adjoining proprietors are subject while the work of excavation and tunnelling is going on is damnum abaque injuria. So also in regard to the grade of a street having been altered by a railway, by consent of the common council of the city of Albany, who by statute were required to assess damages to any freeholder injured thereby, and who had done so in this case, it was held that no action could be maintained against the railway. Chapman ik Albany & Schenectady Railroad Co., 10 Barb. 300; Adams v. Saratoga & Washington Railroad Co., 11 Barb. 414. And in Wolte v. Covington & Lexington Railroad Co., 15 B. Monr. 404, it was held, that the municipal authority of a city might lawfully alter the grade of a street, for any public purpose, without incurring any respon- sibility to the adjacent landholders, and might authorize the passage of a railway through the city, along the streets, and give it the power to alter the grade of the streets, as might be requisite for that purpose, this being done at the expense of the company, and by paying damages to such ad- jacent proprietors as should be entitled to them. But one who urged the laying of the road in that place, on tlie ground that it would benefit him, and who was thereby benefited, cannot I'ecover damages of the company, upon the maxim, ^^ colenli non Jit injuria." A railway, when so authorized, "is not a purpreslure, or encroachment, upon the public property or rights." And where a railway company erect a fence on land which it owns in fee, for the purpose of keeping the snow off the road, it is not liable for damages sustained by the owner of land on the opposite side of the fence, by the accu- mulation of snow, occasioned by the fence. Car.son v. Western Railroad Co., 20 Law Rep. 350; s. c. 8 Gray, 423. See also Morris & Essex Railroad Co. V. Newark, 2 Stockt. Ch. 352. And where the act complained of is the construction of an embankment, by a railway conipany, at the mouth of a navigable creek, in which the plaintiff ha.s a prescriptive right of storing, landing, and rafting lumber, for the use of his .saw- mill, whereby the free flow of the water is obstructed, and the plaintiff thereby deprived of the full enjoyment of his privilege, the injury is regarded as the di- rect and immediate con.sequence of the act of the company, and it is liable for the damages. Tinsman v. Belvidere Delaware Railroatl Co., 2 Dutcher, 148. See also Rogers i\ Kennebec & Portland Railroad Co., '.)'y Me. 310; Burton I'. Philadelphia, Wilmington, & Baltimore Railroad Co., 4 llarr. 2.52; Hollis- ter V. I'nion Co., 9 Conn. 430; Whittier v. Portland & Kennebec Railroad Co., 38 Me. 2G. ' Whitcomb r. Vermont Central Railroad Co., 25 Vt. 69; Hooker i-. New York & New Haven Railroad Co., 14 Conn. 140; infra, § 79. And there is [*294, *21I5] 314 EMINENT DOMAIN. [PART III. diverting watercourses and streams, and not properly restoring tliem,^ whereby lands are ovci'fiowcd or injured.^ 4. And the remedy given by statute for taking or injuriously affecting lands is exclusive of all remedies at common law, by action, or bill in equity, unless provided otherwise in the statute.^ 5. But in one English case,'^ the House of Lords held, that * a the same liability although the lands are not situate on the stream. Brown r. Cayuga & Susquehanna Railroad Co., 12 N. Y. 48G. A party is liable to an action at the suit of the mill-owner, for diverting the water from a spring, wliich ran in a well-defined channel into a stream sup- plying a mill, notwithstanding he had permission from the owner of the land •where the spring arose. Aliter if the spring spread out on the land, having no channel. As the land-owner might drain his land, so he may give permis- sion to others to do so. Dudden v. Union, 1 H. & N. 627. See also Brown V. Illiu.s, 27 Conn. 84; Robin.son r. New York & Erie Railroad Co., 27 Barb. 512; Waterman v. Connecticut & Passumpsic Rivers Railroad Co., 30 Vt. 610; Henry v. Vermont Central Raih'oad Co., 30 Vt. 638. But in this last case it was decided that the effect of erecting a bridge in a stream on the course of the current below was so far incapable of being known or guarded against, that there was no duty imposed on railway companies to guard against an in- jury to land-owners below by a change of the current. See also New Albany & Salem Railroad Co. v. Higraan, 18 Ind. 77; Same i\ Huff, 19 Ind. 315; Colcough V. Nashville & Northwestern Raih-oad Co., 2 Head, 171. And in Cracknell v. Thetford, Law Rep. 4 C. P. 629, it was held that where a muni- cipality, by act of parliament, is authorized to impi'ove the navigation of a river, and in so doing erect staunches in the stream, whereby seaweed and sand accunmlate, so as to cause the stream to overflow and do damage to a riparian owner, he will have no remedy against the corporation, unless some duty, in that respect, was impo.sed by the act. ^ Regina i'. Eastern Counties Railway Co., 2 Q. B. 347, 569; s. c. 3 Railw. Gas. 466. But in this case the act expressly provided, that the verdict and judgment should be conclusive and binding, which most railway acts do not; but it seems questionable if this will make any difference. East & West India Docks & Birmingham Junction Railway v. Gattke, 3 Macn. & G. 155; s. c. 3 Eng. L. &Eq. 59; infra, § 81. " Caledonia Railroad Co. v. Spi'ot, 2 Macq. Ap. Cas. 499; s. c. 39 Eng. L. & Eq. 16. But in Bradley v. New York & New Haven Railroad Co., 21 Conn. 294, where the defendants' charter gave power to take land, being liable for all damages to any person or persons, and it excavated a lot (the plaintiff's) so as to weaken the foundations of his house, and erected an embankment in the highway opposite his house, .so as to obscure the light, and render it otherwise unfit for use, it was held, that this did not constitute a taking of plaintiff's land, but that defendants were liable to consequential damage under the charter. But in the early case of the Wyrley Navigation v. Bi-adley, 7 East, 368, where the act of parliament reserved to the proprietor of mines the right to dig coal, unless the company, on notice, elected to purchase and make cora- [*296] § 75.] ACTION FOR CONSEQUENTIAL DAMAGES. 315 railway company which had been condemned to pay for land, the owner reserving the minerals, were not liable to the land-owner, by reason of his inability to work a mine which he had discovered under the railway. The Lord Chancellor said, " The conveyance of the surface of land gives to the grantee an implied right of supj)ort, sufiicicnt for the object contemplated, from the soil of the grantor adjacent as well as subjacent." G. And it has been held, that in estimating damages to a rail- way in consequence of laying a highway across land occupied by them, it is not proper to take into account the probable increase of business to the company in consequence.^ 7. And where the company take land, but decline to purchase the minerals after notice from the owner of his intention to work them, pursuant to the English statute, the company is not entitled to the subjacent or adjacent support of the minerals. And where the com- pany gave notice, under the statute, that the working of the mines was likely to injure the railway, the owner was held entitled to re- cover compensation which had been assessed under the statute.^ pcnsation, it is held that where the canal was damaged by the near approach of tlie mine, after such notice, and no compensation made, the coal-owner was not liable, although it is there said to be otherwise in case of a house undermined by digging on the soil of the grantor. But this case seems to turn on the reservation in the grant. * Boston & Maine Railroad Co. v. Middlesex County, 1 Allen, 321. The reservation in a deed of land to a railway company of the right to make a crossing over the land, creates an easement in the land, but does not extend such easement across the other lands of the company, lb. 9 Fletcher v. Great Western Railway Co., 4 II. & N. 212. And in North Eastern Railway Co. v. Elliott, Johns. & II. 14.5; s. c G Jur. N. s. 817, it waa held that the general principle, that a vendor of land sold for a particular use cannot derogate from his own grant by doing anything to prevent the land sold from being put to that use, applies to sales to railways under compulsory powers; but that this principle will not compel the vendor of land to perpet- uate anything on the portion of the land retained by him, which is merely accidental, though existing and of long standing at the date of the sale. Kence, where a railway company took land for a bridge in a mining district, where a shaft had been sunk many years before, but the working of the mines had been abandoned and the shaft filled witli water for a long time before the taking of the land, it was held that the land-owner was not precluded from draining the water and working the mine, although the effect must be to lessen the support of the bridge to some extent, by withdrawing the hydro- static pressure on the roof of the mine, and the consequent support of the superincumbent strata of earth. [*296] 316 EMINENT DOMAIN. [part III. ^SECTION XIV. Right to occupy Iligliway. 1. Decisions as to the right of abutting owners to compensation conflict- ing. 2. First held that owners of tlie fee were entitled to additional damages. 3. Principle would seem to support such a rule. 4. But many cases are the other way. 6. Legislatures should require additional compensation. 6. Equity will not enjoin railways from occupying streets of a city. 7. Such compensation required in some of tiie states. 8. Recent decisions show an inclination to require compensation. n. (a) Right of the owner of the fee to additional compensation would seem to be settled. § 76. 1. The decisions are contradictory in regard to the right of a railway company to lay its track along a common highway, without making additional compensation to land-owners adjoining such highway, and who, in the country, commonly own to the middle of the highway, (a) (a) There seems now to be a settled distinction between cases where the fee is in the abutter and those where it is not. Thus, various courts have held that mere dedication of a street to public use will not authorize its use for a railway without compensa- tion to the abutters. Cosby v. Owens- boro & Russellville Railroad Co., 10 Bu.«h, 288; Jeffersonville Railroad Co. V. Esterle, 13 Bush, 6G7 ; Sherman V. Milwaukee, Lake Shore, & ^Vestern Railroad Co., 40 Wis. 645; Cox o. Louisville, New Albany, & Chicago Railroad Co., 48 Ind. 178; Terre Haute & Indianapolis Railroad Co. v. Scott, 74 Ind. 29 ; Grand Rapids & Indiana Railroad Co. v. Ileisel, .38 Mich. 62; Same v. Same, 47 Mich. 393; Gulf, Colorado, & Santa Fe Railway Co. v. Graves, 10 Am. & Eng. Railw. Cas. 199; Hastings & Grand Island Railroad Co. v. Ingalls, [*297] 15 Neb. 123. Although the exclu- sive use of the street is in the public even, the fee being in the abutter; Jeffersonville Railroad Co. v. Esterle, 13 Bush, 667. And although abutters hold subject to the i-ight to appropri- ate the street to such uses, compatible with the end for which the street was established, as the general good may require. Cosby v. Owensboro & Russellville Railroad Co., 10 Bush, 288. And so various courts have held that in general an abutter not owning the fee of the street, cannot recover for the mere use of the street for rail- way purposes. Barney v. Keokuk, 94 U. S. .324; Rio Grande Railroad Co. V. Brownsville, 45 Tex. 88; Eliza- bethtown & Paducah Railroad Co. v. Thompson, 79 Ky. 52; Houston & Texas Central Railroad Co. v. Odum, 53 Tex. 343; Botts v. Missouri Pa- cific Railroad Co., 11 Mo. Ap. 589; §70.] niGHT TO OCCUPY HIGHWAY. 317 2. In some of the early cases ii])on tliis siiljject it seems to have been considered, that, under such circumstances, the land- (Jreene v. New York Central & Hudson lliver Railroad Co., 12 Ab. N. Cas. l:.'i; Simplot v. Chicajro, Milwaukee, & St. Paul Kailway Co., 16 Fed. Rep. ;j.'0 ; Indianapolis, Bloomiiigton, & \Vestei u Railroad Co. v. Hartley, 07 111. 4;39; Stetson v. Chicago & Evans- ton Railroad Co., 75 111. 74. But that he may, for direct damage resulting from the construction or operation of the road, as, e. g., from smoke, cinders, sparks, or from the cracking of walls by tlie rapid moving of heavy trains, or from interference with the means of ingress and egress. Stone v. Fair- bury, Pontiac, & Northwestern Rail- road Co., 68 111. 394; Jeffersonville Railroad Co. v. Esterle, 13 Bush, 007; Elizabethtown & I'aducah Railroad Co. V. Combs, 10 Bush, 382. But see Struthers v. Dunkirk, Warren, & Pittsburg Railway Co., 87 Penn. St. 282. Or for an obstruction of the street by cars or the like, causing a nuisance. Grand Rapids & Indiana Railroad Co. v. Ileisel, 38 Mich. 62; Severy v. Central Pacific Railroad, Co , 51 Cal. 19i. And see Bracken v. Minneapolis & St. Louis Railway Co., 29 Mitm. 41; Ilussner v. Brooklyn City Railroad Co., 30 llun, 409. But see Gear v. Railroad Co., 43 Iowa, 83. Or for any damages other and differ- ent from those sustained by the general inihlic. Chicago & Western Indiana Railroad Co. v. Ayres, 100 III. all; Goltschalk v. Chicago, Burlington, & Quincy Railroad Co., 14 Neb. 550. The person entitled to recover for injury from the laying of the track is the owner at the time when the laving is done, not a subsequent grantee. Dixon v. Baltimore & Poto- mac Railroad Co., 1 Mackey, 78. And title may be proved by adverse posses- sion. Lawrence Railroad Co. v. Cobb, 35 Ohio St. 94. As to injury to the abutter fiom embankments, see Cosby v. Owtns- boro & Russellville Railroad Co., 10 Bush, 288; Bunitt v. New Haven, 42 Conn. 174; Pekin v. Winkel, 77 111. 50; Tate v. Missouri, Kansas, & Texas Railway Co., 64 Mo. 149; Karst V. St. Paul, Stillwater,& Taylor's Falls Railroad Co., 23 Minn. 401. As to injury from additional tracks, see Davis v. Chicago & Northwestern Railway Co., 46 Iowa, 389; Ingram V. Chicago, Dubuque, & Minnesota Railroad Co., 38 Iowa, 609. As to injury from change of grade, see Central Branch Union Pacific Rail- road Co. V. Twine, 23 Kan. 585; Pittsburg, Virginia, & Charleston Railroad Co. v. Rose, 74 Penn. St. 302; Nottingham i-. Baltimore & Potomac Railroad Co., 3 IMcArthur, 517; Kaiser v. St. Paul, Stillwater, & Taylor's Falls Railroad Co., 22 Minn. 149; Buchner v. Chicago, Milwaukee, & Northwestern Railway Co., 50 Wis. 403. As to injury from fire, smoke, cinders, &c., see Chicago & Western Indiana Railroad Co. v. Berg, 10 Brad. Ap. 607; Same v. George, lb. 046; Same v. Phillips, lb. 648; Cosby v. Owensboro& Russellville Railroad Co., 10 Bush, 288; Elizabethtown, Lexing- ton, & Big Sandy Railroad Co. r. Combs, 10 Bush, 382. As to injury from negligence in construction, see Ford 1'. Santa Cruz Railroad Co., 50 Cal. 290; Brewer v. Boston, Clinton, & Fitchburg Railroad Co., 113 Mass. 52; Cadle V. Muscatine Western Railroad Co., 44 Iowa, 11. As to the mea.sureof damages, see Mix v. Lafavette, Bloom- i*297J 318 EMINENT DOMAIN. [part III. owners were entitled to additional compensation, when the land was converted from a common carriage-way to a railway.^ ^ Presbyterian Society v. Auburn & Rochester Railroad Co., 3 Hill, N. Y. 5G7. The case of Fletcher v. Auburn & Syracuse Railroad Co., 25 Wend. ington, & Mississippi Railway Co., 67 111. 319; St. Louis, Yandalia, & Terra Haute Railroad Co. v. Capps, 72 111. 188; Hartz v. St. Paul & Sioux City Railroad Co., 21 Minn. 358; In re New York, West Shore, & Buifalo Railway Co., 29 Hun, 64G; Syracuse & Northern Railroad Co. v. Alexander, 3 Thomp. &C. 784; Chicago, Bur- lington, & Quincy Railroad Co. v. McGinnis, 79 111. 269; Jeffersonville Railroad Co. f. Esterle, 13 Bush, 667; Grand Rapids & Indiana Railroad Co. V. Heisel, 38 Mich. 62; Henderson v. New York Central Railroad Co., 78 N. Y. 423; Kucheman v. Chicago, Clinton, & Dubuque Railway Co., 46 Iowa, 366; O'Connor v. St. Louis, Kansas City, & Northern Railway Co., 56 Iowa, 735; Chicago & Western Indiana Railroad Co. v. Berg, 10 Brad. Ap. 607; Pittsburg, Virginia, & Charleston Railroad Co. v. Rose, 71 Penn. St. 302; Mix v. Lafayette, Bloomington, & Mississippi Railway Co., 67 111.319. The legislature has power to au- thorize the construction of a railway in a highway or a street. In re Pros- pect Park & Coney Island Railroad Co., 8 Hun, 30; s. c. 67 N. Y. 371; Atlantic & Pacific Railroad Co. v. St. Louis, 3 Mo. Ap. 315; Danville, Hazleton, & Wilkesbarre Railroad Co. t-. State, 73 Penn. St. 29; Brainard r. Missisquoi Railroad Co., 48 Vt. 107; Perry v. New Orleans, jVIobile, & Chattanooga Railroad Co., 55 Ala. 413; Washington Cemetery v. Pros- pect Park & Coney Island Railroad Co., 68 N. Y. 591. It cannot be [*297] constructed without such authority. Pennsylvania Railroad Co.'s Appeal, 93 Penn. St. 150. And this, as in Iowa, without consent of municipal authority. Chicago, Newton, ik Southwestern Railroad Co. ik Newton, 36 Iowa, 299; Hines v. Keokuk & Des Moines Railroad Co., 42 Iowa, 636; State V. Davenport & St. Paul Rail- road Co., 47 Iowa, .507. But a grant of a right to run a road through a town does not operate as a grant of the use of the street. St. Louis, Van- dalia, & Terre Haute Railroad Co. v. Haller, 82 111. 208. But see Houston & Texas Central Railroad Co. v. Odum, 53 Tex. 343, where it is held that a chai'ter to a road to be built tx) a certain city imported authority to enter the city and use a street. Grant of a right to lay a track in a street does not deprive the abutter of his right to damages. Frith v. Dubuque, 45 Iowa, 406; Washington Cemetery V. Prospect Park & Coney Island Rail- road Co., supra. And so the legislature may give a city exclusive control of its streets and alleys, as it has in Illinois. Chicago, & Vincennes Railroad Co. r. People, 92 111. 170. And in such case the city may authorize the construction of railways in the streets. Quincy v. Chicago, Burlington, & Quincy Rail- road Co., 92 111. 21; Korlmel v. New Orleans Railroad Co., 27 La. An. 442. Or in the alleys. Heath i-. Des Moines & St. Louis Railroad Co., 10 Am. & Eng. Railw. Cas. 313. And see Cook V. Burlington, 36 Iowa, 3.57. And •where permission is to be given by § 7G.] niciiT TO OCCUPY highway. .019 * 3. There is certainly great reason in this view, inasniucli as (lie land-owner's entire damage is to be assessed, at once, and it 4GJ, niii^lil Iiave been put on the same ground, Ijut it was not. The ground assuuK'il is, that the land-owners arc entitled to consequential damage, in consequence of the new use to which the land is put, which amounts to nearly the same thing. Philadelphia & Trenton Railroad Co., G Wh.art. 25; Milh.T V. Auburn & Syracuse Railroad Co., G Hill, N. Y. Gl; Mahon v. Utica & Schenectady Railroad Co., Hill & Den. Supp. 156. And in Ramsden v. Manchester South Junction & Altrincham Railway Co., 1 Exch. 723, the Court of Excheipier exjiressly decide, that a railway company has no right even to tunnel under a highway, without making previous compensation to the land-owner. Seneca Road v. Auburn & Rochester Railroad Co., 5 Hill, 170; Troy v. Cheshire Railroad Co., 3 Fost. N. H. 83. But a distinction is taken between the property of adjoining land-owners in the highway or street in cities, and in the country. In the former it has been held that the fee of the streets is under the sole control of the municipal authorities, and that it is no perversion of the legitimate use of the streets to allow a rail- way conq>any to lay its track on them. Plant v. Long Island Railroad Co., 10 Rarb. 2G; Adams v. Saratoga & Washington Railroad Co., 11 Barb. 414; Chapman v. Albany & Schenectady Railroad Co., 10 Barb. 360; Drake v. Hudson River Railroad Co., 7 Barb. 508; Applegate v. Lexington & Ohio Railroad Co., 8 Dana, 289; Wolfe v. Covington & Lexington Railroad Co., 15 B. Monr. 404. In Williams v. New York Central Railroad Co., 18 Barb. 222, 216, the court say: " A railroad is only an improved highway, and the use of a street by a railway is one of the modes of enjoying a public easement." But see this case reversed, infra. A general power to pass highways in the construc- tion of a canal or railway has been held to include turnpikes also. Rogers v. Bradshav,', 20 Johns. 735; White River Turnpike Co. v. Vermont Central Raih'oad Co., 21 Vt. 590. But the grant of a railway from one terminus to another, without prescribing its precise course and direction, does not, prima facie, confer power to lay out the railway on and along an existing liighway. The legislature, however, may grant such authority, either by express words or necessary imi)lication; and such implication may result either from the language of the act or from its being shown, from an application of the act to the subject-matter, that the railway cannot, by reasonable intendment,' be laid in any other line. Springfield v. Connecticut River Railroad Co., 4 Cush. 03; 8. c. 1 Redf. Am. Railw. Cas. 299. But in general, the owner of land adjoining a highway is entitled to additional compensation where it is put to a different and more dangerous use. And towns have an interest in high- ways and bridges which will enable them to maintain an action on the case for thoir obstruction or destruction, and the conversion of the materials. ordinance, a resolution will answer not render the road a nuisance. In- the purpose. Quincy v. Chicago, gram r. Chicago. Dubuque. & Minne- Burlington, & Quincy Railroad Co., sota Railroad Co., 3S Iowa, 669. supra. Repeal of the ordinance will [*208] 320 EMINENT DOMAIN. [PART III. * could never be done understandingly, unless the use to which it were to be put were known to the assessors. And it is obvious, Troy V. Cheshire Raih'oad Co., 3 Fost. N. II. 83. But the town is not liable to pay damages assessed by the selectmen in laying out a highway, at the request of a railway company, made necessary to supply the place of one taken by the company for a track. Ellis v. Swanzey, Fost. N. II. 2G0. In general, it may be stated as the settled doctrine of most of the states, that the owner of land bounded on a highway owns to the centre of the way. Buck V. Squiers, 22 Vt. 481, 495. The general rule as to monuments re- ferred to in deeds of land undoubtedly is, that the centre of such monuments is intended, whether it be stake, stone, tree, rock, or a highway or stream. It is undoubtedly more a rule of policy than of intention, and as such, to answer its end, should be applied in every case, unless a clearly defined in- tention to the contrary be made to appear. 3 Kent Com. 433; Chatham v. Brainerd, 11 Conn. 60; Champlin v. Pendleton, 13 Conn. 23; Livingston v. New York, 8 Wend. 85, 106; Starr v. Child, 20 Wend. 149; s. c. 4 Hill, 309; Canal Conmiissioners v. People, 5 Wend. 423; s. c. 13 Wend. 355; Johnson V. Anderson, 18 Me. 76; Bucknam v. Bucknam, 3 Fairf. 463; Lcavitt v. Towle, 8 N. II. 96; Dovaston v. Payne, 2 Sm. Lead. Cas. 199, and iiotes by Hare & Wallace; Nicholson v. New York & New Haven Railroad Co., 22 Conn. 74. Bat the owner of the fee of land over which a highway passes cannot maintain a bill in equity to enforce an order of commissioners as to the man- ner of constructing a railway where it crosses the highway, but the same should be brought by the principal executive officers of the town or city. Brainard v. Connecticut River Railroad Co., 7 Cush. 506. The court say : " It is only where the owner suffers some special damage, differing in kind from that which is common to others, that a personal remedy accrues to him ; and certainly no rule of law rests on a wiser or more sound policy. Were it otherwise, suits might be multiplied to an indefinite extent, so as to create a public evil, in many cases, much greater than that which was sought to be redressed." Stetson v. Faxon, 19 Pick. 147; Quincy Canal Proprietors v. Newcomb, 7 Met. 276; Smith v. Boston, 7 Cush. 254; Hughes v. Providence & Worcester Railroad Co., 2 R. I. 493. In Williams v. Natural Bridge Plank-Road Co., 21 i\Io. 580, it is held that the grant of the right of locating a plank-road on a county road does not exclude the idea that the owner of the soil over which the road passes should have compensation for any injury he may sustain by converting a county road into a plank-road. This case is put by the court on the ground that the plank-road is an additional burden on the soil, and that for this the land- owner is as much entitled to compensation as if his land had originally been taken for the purpose of a plank-road; and that to deny all redress in such ca.se is a virtual violation of that article of the Constitution which give.g com- pensation to the owner of property taken for public use. This is undoubtedly the rule of the English Law, and of reason and jus- ['299] § TO.] RIGHT TO OCCUPY iii(;invAY. 321 * that it woiilj ordinarily Ijc attended with far more damage to the remaining land to have a railway thuu a common highway laid across it. ♦ 4. ]f the rule of estimating damages according to the money value of the land taken, were adopted, there would Ix' more * rea- son in saying the public would therel)y acipiire the right to use it for any puri)ose.s of a road, which any future improvement * might suggest. And this is the view which seems very extensively to prevail in this conntry. It was long since settled that * the land- owner was not entitled to any additional damage, by reason of any alteration in the construction of the highway .^ Or in applying it to the use of a turnpike road where toll was paid, this being but a tice, and it should prevail more extensively in this country. The American courts seem to have been sometimes led astray on this subject by the fallacy that a railway is merely an improved highway, — which for many purposes it is, but not for all, any more than a canal is. See also Ex parte Railroad Co., 2 Rich. 4:34. And the Xew York statute giving railways the right to pass on or over turnpikes, plank-roads, rivers, &c., by restoring such ways, rivers, &c. so as not unnecessarily to impair their usefulness, was construed not to preclude a ] 'lank-road from recovering damages in a common action for damages under the code, the company having entered on the plank-road without causing damages to be assessed under the statute. Ellicottville & Great Valley Plank- Road Co. V. Buffalo & Pittsburg Raihoad Co.. 20 Barb. G44. In Williams v. New York Central Railroad Co., IG X. Y. 97, it was held that the dedication of land to the use of the public as a highway does not authorize its being taken by a railway company for a track without compensation to the owner of the fee, although done with the consent of the legislature and of the muni- cipal authorities. It has been sometimes held that the laying out and oper- ating of a horse-railway in the streets of a city is not an additional .servitude upon the soil, for which the owner is entitled to compensation. Brooklyn Central & Jamaica Railroad Co. r. Brooklyn City Railroad Co., .35 Barb. -120. And if one company lay its track across the track of another, it is entitled to no compensation. lb. - Zimmerman v. Union Canal Co., 1 Watts & S. 31G; Mayor v. Randolph, 4 Watts & S. 514; Plate .Alanufactnrors r. Meredith, 4 T. R. 700; .button r. Clark, G Taunt. 29; Bolton i-. Crowther, 2 B. & C. 703; Rex r. Pa-ham. 8 B. & C. 335; II(Miry v. Alleghany & Pittsburgh Bridge Co, 8 Watts & S. SG; Siirunk v. Schuylkill Navigation Co, 14 S. & 11. 71; Commonwealth v. Fi.sher, 1 Penn. 4G7; Hatch v. Vermont Central Railroad Co., 25 Vt. 49; Taylor v. St. Louis, 14 Mo. 20; Richardson v. Vermont Central Railroad Co., 25 Vt. 4G5; Callendor v. Marsh, 1 Pick. 418; Rounds v. Mumford, 2 R. I. lol; O'Connor v. Pittsburgh, IS Penn. St. 187; Plum v. Morris Canal & Bank Co., 2 Stockt. 256. VOL. I. -21 [*300-*304] 322 EMINENT DOMAIN. [PART III. diiTcrcnt mode of supporting the liighway, of which the land- owner had no just cause of complaint, since it did not mate- rially alter the use of the land/'' And the same rule has now heen pretty extensively extended to improvements in erecting railways along the streets and liighways.* These questions depend much upon the terms of the charter of the railway company. * 5. And as it is confessedly competent for the legislature to require railways, in laying their track along the highways, to make compensation to the adjoining land-owners for any increased detriment, or to be liable for all consequential damage,^ and as it is assuredly just and equitable to do so, it seems desirable it should be done. And in those states and countries where such enter- prises have become so far matured as to have assumed the form of a settled system, it more commonly is done. And where it is not, it may be regarded as the result of oversight in the legislature. It was held that a railway is liable to pay damages for crossing a turnpike company's road, notwithstanding the legislature gave the right.6 6. Injunctions in equity have been denied, when applied for, to restrain railways from occupying the streets of cities and towns with their track,'^ (5) by consent of the municipal authority. 3 Wright V. Carter, 3 Dutcher, 7G. 4 riant V. Long Island Railroad Co., 10 Barb, 20. But see Mifflin v. llarrisburg, Portsmouth, Mountjoy & Lancaster Railroad Co., 16 Penn. St. 182. In this case the act required payment of damage to all who were in- jured by converting a turnpike into a railway, and it was held that a receipt in full to the turnpike company did not bar the claim of an adjoining land- owner for additional damages. But the levelling of a street, preparatory to laying the structure of a railway, is not an obstruction. McLaughlin v. Charlotte & South Carolina Railroad Co., 5 Rich. 583; Benedict v. Coit, 3 Barb. 4od. 6 Bradley v. New York & New Haven Railroad Co., 21 Conn. 294. * Seneca Railroad Co. v. Auburn & Rochester Railroad Co., .5 Hill, 170. And the amount of damage is immaterial. The maxim, de minimis, does not apply to cases of plain violation of right. Id., per Cowkx, J. ' Hamilton v. Xew York & Harlem Railroad Co., 9 Paige, 171; Hentz v. (h) But where the fee is in the Hun, 314; Same i-. Same, 78 N. Y. 423; abutting owner, the use of the street Railway Co. v. Lawrence, 38 Ohio St. without compensation mny be re- 41. And see Chicago & Pacific Rail- strained by injunction. Henderson v. road Co. v. Francis, 70 111. 238. Xew York Central Railroad Co., 17 [*305] § 70.] RIGHT TO OCCUPY men WAV. 323 * 7. But in one wcll-considcrcd casc,^ it was held, tliat where a railway company, in carrying their road through the streets of Loncf Island Railroad Co., 13 Barb. G4G; Chapman v. Albany & Schenectady Railroad Qo., 10 Barb. 360; Lexington & Ohio Railroad Co. v. Apple{,'at(f, 8 Dana, 280; Drake r. Hudson River Railroad Co., 7 Barb. 508; Wetuiore /•. Story, '-2 Barb. 411; ^Milium v. Sharp, 15 Barb. 10:5. But where the railway is constructed without the legal permission of the municiixal authorities or the legislature, along the streets of a populous city, it becomes a nuisance, and courts of equity will prohibit its continuance, at the suit of individuals who are tax-payers and property owners on the streets throu;jrh which tlie rails are laid. In Morris & Essex Railroad Co. r. Newark, 2 Stockt. 352, the right of a railway company to occupy the streets of a city seems to have been ex- amined with considerable care, but the cases on the subject are not examined very extensively, and reliance is there placed on the case of AVilliams v. New York Central Railroad Co., 18 Barb. 222, which has since been reversed. Supra, note 1. There is one distinction here adverted to that is not named in other cases, so far as we have noticed, viz. : that so long as the highway or street continues to be used as such, the concurrent use of it by a railway company for its track, by consent of the legislature and the municipal authorities, does not entitle the owner of the fee to additional compensation. But if it is appro- priated exclusively to the use of the railway, the owner is then, by constitu- tional provision, entitled to compensation, the discontinuance of the highway causing a reverter of the fee to the owner. This qualification takes away the most oifensive feature of what is claimed, in some of the cases, — the right, in the legislature and the municipal authorities, to transmute a common highway or street into a public railway, as one of those improvements in the mode of intercommunication which the progress of events had brought about, and which must be regarded as fairly within the contemplation of the parties at the time of the original taking. But, in the present case, there being no ' Nicholson v. New York & New Haven Railroail Co., 22 Conn. 74. If there is any departure from general priiici[>les, in this case, it is in holding the railway company justified in making alterations in highways, which cause no appreciable injury to the landholders, and this certainly commends itself to one's sense of reason and justice. It may be questionable, per- haps, whether the charge of the judge, who tried the case at the circuit, was not based on the technical rules applicable to the case, viz., that the com- pany was, at all events, liable for nominal damages, and for all actual d.-ini- ages in addition. But where a railway company, by consent of a city, under the statutes, raises a street in order to carry the road under it, it becomes primarily liable to tlie adjoining land-owners for any damage to their estates thereby. And it makes no difference that the city took of them a bon«i of indemnity, and appointed a superintendent to take care of the public interest.s in tlie execution of the work. Gardiner i;. Boston & Worcester Railroad Co., 9 Cash. 1. [*30G] 824 EMINENT DOMAIN. [PART III. the city of New Haven, found it necessary to carry one of the streets over the railway, upon a high bridge, with large embank- ments at each end, the plaintiff ownhig the land upon both sides ©f the street, and no Compensation being assessed to him, he * might recover of the company in an action of trespass for any appreciable incidental damages occasioned by thus constructing their road, and the consequent alteration of the highway or street. And as the company, in thus constructing their road, acted under the authority of the legislature, they were, prma/acee, not to be regarded as trespassers, but where they caused any appreciable damage to the land-owners along the line of the road, they were liable in this form of action. The court in this case, Hinman, J., assumed the distinct ground, that the railway, by laying their track upon the plaintiff's land, which was before subject to the servitude of the highway, or street, would become liable " for such entry " upon the land. " In such case," says the learned judge, " the subjecting the plaintiff 's property to an additional servitude, is an infringement of his right to it, and is therefore an injury and damage to him. It would be a taking of the property of the plaintiff, without first making compensation." And the same court, in a later case,^ held that the location of a railway upon a public highway is the imposition of a new servitude upon the land, and the owner of the fee is entitled to compensation for the necessity for the use of the street, and no express consent of the municipal authorities for such use, it was lield that no right to such use could be im- plied, from the grant of the charter, for a road between certain termini, which might be built by a route less injurious to the public; and that the consent of the municipal authorities was not to be infen-ed from non-interference until the track had been laid and used for several years, and large suras of money thus invested and important interests accrued; and the injunction restraining the authorities from removing tlie track was dissolved. The extent to which a railway company must obstruct tlie higliway, at an intersection, to create an ' actionable impediment to the public travel, is extensively considered in the case of Great AVestern Railroad Co. v. Decatur, 33 111. 381. It was there decided, that to leave twelve feet of the highway unobstructed, so that steady team might pass in safety, was not enough. The obstruction of lii'^ public right of way in a river, whether navigable in the old sense of being a tidal stream, or not, is a public nuisance, for which an injunction will be granted at the suit of one suifering special damage, or of the Attorney- General. Attorney-General r. Lonsdale, 17 W. B.. 219; s. c. Law Rep. 7 Eq.j 377. 3 Imlay v. Union Branch Railroad Co , 20 Conn. 249. [*307] § 70.] RIGHT TO OCCUPY HIGHWAY. 325 (lamafre caused thereby. And this inchidcs all incidental dama^'c to land adjoining, and which belongs to the same proiirietor. \n a case in Pennsylvania,^'' it is held that the legislature may au- thorize the construction of a railway on a street, or public highway, and the inconvenience thereby incurred by the citizens must be borne for the sake of the puljlic good. But where this is claimed by construction and inference, all doubts are to be solved against tlie company. And where, by the act of incorporation of a nnuiicipality, it was provided that the " streets, lanes, and alleys thereof" should forever be and remain public highways, it was held that the municipal authorities could not authorize the construction of a railway thereon.^'' Jjut where the state conveys to a city the title of a common, reserved in the grant of the town- ship for a " comuKjn pasture," subject to the easement of the lot- holders, of common of pasturage, * it was held that tlic city might lawfully grant a jjortion of the same to a railway company for the purpose- of constructing their road.^^ 10 Commonwealth v. Erie & Northeast Railroad Co., 27 Tenn. St. 339. See also Alleghany r. Ohio & Pennsylvania llailroad Co., 26 Penu. St. 355. " Alleghany v. Ohio & Pennsylvania Railroad Co., 26 Penu. St. 355. Rut the grant of fifty feet through such a common, in a densely populated city, will convey only the right to make a road thereon, and to receive and dis- charge passengers and freight, and will not give the right to erect depots, car-houses, or other structures, for the convenience or business of the road; or to permit cars and locomotives to remain on the track longer than necessary to receive and discharge freight and passengers. lb. And it might have been regarded as the settled doctrine of the New York courts, until the case of Williams v. New York Central Railroad Co., .•'ujira, note 1, that the owner of the fee of land dedicated to the use of a highway or street, and which the legislature devote to the use of a railway, had no claim on the company for compensation, by reason of the additional servi- tude thereby imposed on the land. Corey r. Buffalo, Corning, & New York Pvailroad Co., 23 Barb. 482; Radcliff v. Brooklyn, 4 Comst. 195; Gould v. Hudson River Railroad Co., 2 Seld. 522. But this is now otherwise in New York. In 1857, the subject was elaborately examineil by Vioe-Chancillcr Kinhkh- SLKY, in Thompson v. West Somerset Railway Co., 29 Law T. 7, in relation to the cesiuis que trust of a pier, over which the act of parliament, in express terms, authorized the company to construct a road, which the company had constructed without proceeding under the statutes to appraise compensation, and the court held them trespassers, and an injunction was granted until the company made compensation. The subject has been considered in Indiana also, and although the author- [*308J 326 EMINENT DOMAIN. [PART III. * 8. Since the second edition of this work, the decisions have been considerably numerous in regard to the right of railways to occupy the streets and highways, without making additional compensation to the owners of the fee of the lands across which the same are laid. The principles involved are much the same as have been already stated ; but it will be important to the pro- fession to know them in detail. In a somewhat recent case ^^ it was decided, that the occupa- tion of the highway by the track of a railway company is the imposition of an additional servitude, and is the taking of the property of the owner of the fee in the lands over which the same is laid, within those constitutional prohibitions requiring compen- sation where private property is taken for public use ; and that ities are not much reviewed, the concUisions of the court conform to reason and justice. A city ordinance authorized the construction of a railway on either of two streets, through the corporate limits, under suitable restrictions as to grade. It was held that the ordinance did not authorize the company substantially to alter the grade of the street, and that, besides the right of "way, which the public have in a street, there is a private right which passes to a purchaser of a lot on the street, as appurtenant to it, which he holds by an implied covenant that the street in front of his lot shall forever be kept open for his enjoyment, for any obstruction whereof to his injury he may maintain an action. In Tate v. Ohio & Mississippi Railroad Co., 7 Ind. 149, it was held that the i-ight which the owner of a lot has to the enjoyment of an adjoining street is part of his property, and can be taken for public use, only on just compensation being made, pursuant to the constitution. And in Haynes v. Thomas, 7 Ind. 38, where the cases are more fully examined, the same general propositions are maintained. It is there said, the right of the owner of a town lot abutting on a street, to use the street, is as much prop- erty as the lot itself, and the legislature has as little power to take away one as the other. Although on principle, the right as against a railway company should be placed on the basis of its being an additional and more oppressive burden and servitude on the land, which entitles the land-owner to additional compensation, there can be, in our judgment, no manner of question of the general soundness of the above decisions. The last named case, being that of the voluntary dedication of property by the owner, for the purposes of a street and highway, well illustrates the injustice of wresting such use to the purposes of a railway, so much more burdensome and injurious. Thus the general current of American law on this subject may now be regarded as the same with the English rule already stated. Protzman i'. Indianapolis & Cin- cinnati Railroad Co., 9 Ind. 467; Evansville & Crawfordsville Railroad Co. v. Duke, 9 Ind. 433. See also Salisbury v. Great Northern Railway Co., 5 C. B. N. s. 174; s. c 5 Jur. n. s. 70. ^- Craig r. Rochester City & Brighton Railroad Co., 39 Barb. 494. [*309] § 7G.] RIGHT TO OCCUPY HIGHWAY. 3'J7 conscquoii'tly the company can acquire no right to siicli use, inuler lei»ishitive and municipal license, without compensation, and that there is no difference in tliis respect hetween railways ojjerated by steaui and by other motive })0wer. ]]ut in another case it was held, that any legislative act empowering a railway company to occupy certain streets and avenues in the city of New York, should not be construed as not intended to give such permission without compensation.^'^ In the main, this case assumes the 0])posite ground from that declared by Craig v. Rochester City e streets for city passenger railway purposes. '-'" New Albany & Salem Railroad Co. v. O'Daily, 12 Ind. 551. -* Elliott V. Fairhaven & Westville Railroad Co., 32 Conu. 579. ((•) But in Stango v. Dubuque pany was liable for six'cial injury to Street Railway Co., 54 Iowa, 609, it adjoining property from the use of was held that a street railway com- steam in the streets. [•01:2J 330 EMINENT DOMAIN. [PART III. I It seems very certain tliat the grant to a railway company of the right to pass along the streets of a city or town can confer I no right to erect stations and other permanent structures in the streets and thereby render them unfit for use as streets.^ la such cases the adjoining land-owners will be entitled to redress by way of damages, whether they own to the middle line of the street or only to the margin. 22 But the owner of an unimproved building lot upon a street cannot be regarded as suffering any such injury from the location of a railway along the public street adjoining as will entitle him to an injunction.^ And the fact that the defendant owned the \ * land across which a railway track is laid, and had never released j the right of way to the railway, is no ground of defence for pla- cing obstructions upon the track. 2* Nor will the breach of con- tract by which the company secured the right of way give any ( color of justification to the land-owner for placing any such obstructions on the track .^^ Some recent cases affecting the location of street railways in the city of New York may be of interest to the profession, and we have therefore inserted in the note below ^^ the leading points > decided. (^) | 2^ Lackland v. North Missouri Railroad Co., 31 Mo. 180. 23 Zabriskie v. Jersey City & Bergen Railroad Co., '2 Beasley, 314. 2* State V. Hessenkamp, 17 Iowa, 25. 25 In Sixth Avenue Railroad Co. v. Kerr, 45 Baib. 138, it was held that where a railroad is laid in a public street, on permission to use a portion of the street for that purpose, the company does not acquire the same unqualified (d) Somewhat analogous to the ton Beach Railroad Co., 20 Hun, 201. questions relating to the occupation But that an owner of lands merely of highways are the questions relat- cornering on a park has no easement ing to the occupation of commons, entitling him to complain of the use parks, and public squares. Thus it of the park for a station. Greene v. has been held that abutting owners New York Central & Hudson River have such an easement in a public Railroad Co., Go How. Pr. 154. In 1 square as will entitle them to enjoin Jacksonville v. Jacksonville Railway ' its use for railroad purposes without Co., G7 111. 540, a company was per- corapensation. Pratt v. Buffalo City petually enjoined at suit of a city , Railway Co., 19 Hun, 30. And that from laying a road over a public | a park acquired for public use under square which had been dedicated to statute cannot be taken for the pur- the city and around which lots had poses of a railway without legislative been sold and improved in faith of its authority. In re New York & Brigh- continuance. [*313] §77.] CONFLICTING UIGIITS IN DIFFERENT COMPANIES. 331 ♦SECTION XV. Conflicting liights in different Companies. 1. Company subservient to anollicr can take of tlie othor land enotigli only for its track. Where no apparent conflict in route, company whose road is first located acquires superior right. § 77. 1. Where the defendants' statutory powers were subjcet to thuse conferred upon the i)lainti£fs, whose charter was first granted, providing that the plaintiffs' powers shall not be so exercised as to prevent the defendants from compulsorily taking and using land sufticient to construct their branch lines, not exceeding twenty-two feet in width, at the level of the rails, the plaintiffs having first purchased, with the consent of the owner, lands which the defend- ants proposed to take, beyond the twenty-two feet, for purposes of building stations, &c., it was held, that the plaintiffs, having occu- pied the ground first, were entitled to hold so much as was not actually necessary for the formation of defendants' railway.* (a) title and right of disposition to the land occupied which individuals have in their lands; that the only exclusive power conferred by such grants is that of using railway carriages in the same manner as the grant of a stage line con- fers, for the time being, — the grant of a monopoly of using such stages; that after a railway company has obtained permission from the common council to lay a railway through certain streets, and such grant is subsequently confirmed by the legislature, the legislature may grant similar privileges to anotlier com- pany, and authorize the latter to run upon, intersect, or use any portion of the tracks already laid, on condition of making compensation, the grantees of such grants holding for the public use ; that tlie right to grant a cro-ssing of the road necessarily involves a right to pass over a larger portion of such road, when tiie legislature so directs; that a railway corporation, by acquiring tlie right to construct a road across a highway, and obtaining title to the land fur iLs roadbed, does not destroy or imjiair the public casement, but that the per- fect and unqualified right of every citizen to pass over the road at that point remains the same as before. The cases of People i". Third Avenue Kailroatl Co. 45 Barb. 63; People v. New York & Harlem Railroad Co., 45 Barb. 73, decide some further points as to extensions, double tracks, &c. ^ Lancaster & Carlisle Railroad Co. v. Maryport & Carli.sle Railroad Co., 4 Kailw. Cas. 504; wfra, § 105. (a) Where two roads proceed be- other, may properly be authorized, tween different points and regions Lake Shore & Michigan Southern they are for a different use, so that in Railroad Co. c. Chicago & Western Illinois condemnation of a part of the Indiana Railroad Co., 97 111. 500. propertv of one, for the use of the [•321] 332 EMINENT DOMAIN. [part III. 2. "Where two railway companies were incorporated to com- plete independent lines across the state, only the termini of either being prescribed, there being no apparent or necessary conflict of the routes, it was held, that the company which first surveyed and adopted a route, and filed the survey in the proper office, were en- titled to hold it, without reference to the date of the charters, both being granted at the same session of the legislature.^ * SECTION XVI. Right to Build over Navigable Waters. 1. Legislature may grant right to build over navigable waters. 2. Riparian proprietor along navigable water owns only to the water. n. (a) But quare if this does not de- jiend on the local law. 3 His rights in the water subservient to public use. 4. Legislative grant valid, subject to paramount power of Congress. 5. State interest in flats where tide ebbs and flows. 6. Rights of littoral proprietors in Mas- sachusetts. 7. Grant to railway company of shipping place on navigable river. 8. Principal grant carries its incidents. 9. Grant of right to construct a harbor includes right to make necessary erections. 10, 11. Rivers in fact navigable, naviga^ ble in contemplation of law. 12. Land being cut off from wharves deemed "injuriously affected." 1-3. Infringement of paramount rights of Congress creates a nuisance. 15. Obstruction, if illegal, per se a, nui- sance. 16. Public reservations applied to use of railway. § 78. 1. In regard to navigable streams, it seems to be a con- ceded point, that the owner of land adjoining the stream has no 2 Morris & Essex Railroad Co. v. Blair. 1 Stockt. G3.i. A decision similar in principle was made in (lawtliern v. Stockport, Disley, & W. Railway Co., 29 Law T. 308, where the railway first chartered, laid out. and partly built, had been lying by some time, and the Master of the Rolls held a subsequent rail- way not precluded from interfering with its contemplated route. A railway may be laid across the line of another company, but the latter will be entitled to damages, although the former is laid on piles over tide-water. Grand Junction Railroad & Depot Co. v. County Commissioners, 14 Gray, 553. And it is here said, where two companies file a joint location, they are jointly liable for damages to land-owners; and a location may refer to apian so as to make that part of the location. [*322] §78.] ERECTIONS OVER NAVKJAIJLE WATi:US. 333 property in the bed of llic stream, and hence that the legislature in England may give permission to a railway comiiany tu so con- struct their road as to interfere with and alter the bed of such a stream, to the damage of any owner of adjoining land, in regard to fiowage, or otherwise, even to the hindrance of accustomed navigation, without comi)cnsation ; and that the railway company, in constructing their road within the provisions of the act, do not Ijceome liable to an action for damages to any such jiroprietor of adjoining land.^ * '2. The same point has been often decided in this country .^ (a^ Whether waters are navigable or not, is determined by the ebb 1 Abraliam v. Great Northern Railway Co., IG Q. B. 5SG; s. c. 5 Eng. L. & Eq. 258. " The legislature might authorize defeudauts to construct a causeway or bridge across navigable or tide-waters, altliough the navigation might be thereby impaired." And in liegina v. ]\Iusson, 8 Ellis & B. 900; 8. c. 30 Law T. 272, it is held that a pier built into the sea is not liable to the parish rates, except so far as it is above high-water mark. See Parker v. Cutler Milldam Co., 20 Me. 353; opinion of court in Brown r. Cliadbourne, 31 I^Ie. 9; Shki'LEY, C J., in Rogers t'. Kennebec & Portland Railroad Co., 35 Me. 319. So, too, to construct a road across the basins of a water company to their injury, on making compensation. Boston Water Power Co. v. Boston & Worcester Railroad Co., 23 Pick. 300; 8. c. 1 Am. Railw. Cas. 298. The grant of power to construct a railway between two points carries authority to cross navigable waters, if that is reasonably neces- sary, in the construction of the works. Fall River Iron Works v. Old Colony & Fall River Railroad Co., 5 Allen, 221. 2 Gould V. Hudson River Railroad Co., G X. Y. 522; infra, § 206. (a) So it is now held that whether on navigable waters, above the ebb and flow of the tide, the riparian pro- jirietor has a right to the shore and the bed of the river, depends on the law of the state where the land is sit- uated. Barney r. Keokuk, 94 U.S. 324. ScmNe that the true rule, however, since all waters in fact navigable have boen held (see infra, note (b)) nav- igable in contemplation of law, would hold proprietorship to be in the state, lb. See further, St. Paul & Pacific Railroad Co. r. Schurmeir, 7 Wall. 272. But see Houghton v. Railroad Co., 47 Iowa, 370, and Chicago, Rock Island, & Pacific Railroad Co., 11 Am. & Eng. Railw. Cas. 499, which hold that the riparian proprietor owns to high-water mark. As to the rights of riparian proprietors under the statutes of Iowa, see Barney c. Keokuk, 91 U. S. 324; Davenport & Northwestern Railway Co. r. R.Miwick, 102 U. S. ISO; Renwick v. Davenport & North- western Railway Co., 49 Iowa, GGl. As to the question of ownership in general, see Ormorod r. New York, West Shore, & Buffalo Railroad Co., 13 Fed. Rep. 370; Die Iriohs t\ North- western Union Railway Co., 42 Wi-;. 248. [•323] 334 EMINENT DOMAIN. [PART III. and flow of the tide. And although streams, ahove that point, are navigable often for steamboats and lesser water craft, and arc public highways for such purposes, and often become high- ways by prescription for purposes of inferior navigation, as float- ing timber and wood, and possibly they may be regarded as sucli even independent of such prescription ; yet the ownership of the riparian proprietor to the middle of the stream, ad medium jilum aquce, is not excluded, except in tide-waters,^ and such large rivers, in this country, as by authority of Congress or common consent have acquired or assumed the character of navigable waters, although not coming strictly within the common-law definition.* (6) 8 1 Hargrave's Law Tracts, 12, 13, 85; Angell Tide- "Waters, 71-174. * Cliamplaiii & St. Lawrence Railroad Co. v. Valentine, 19 Barb. 481. But in Bell v. Gongh, 3 Zab. 024, it is held that if the riparian owner has made improvements on the land below high water, so as to have reclaimed it, the part so reclaimed belongs to him, and cannot be granted by the state. And three of the nine judges in the appellate court held that riparian owners have a vested right in the benefits and advantages arising from their adjoining the water, of which they cannot be deprived without compensation. But this case, although exhibiting great research and ability, is not altogether in accordance with the general current of the decisions on the subject, and is probably based on the custom or usage which has prevailed to a great extent in some sections of the country from its first settlement, originally founded on Colonial statutes, probably, and in others, perhaps, growing up by common consent, as a kind of local law. In a later case before the same court, Paterson & Xewark Railroad Co. r. Stevens, 10 Am. Law Reg. N. s. 16."), in a very elaborate and learned opinion by Chief Justice Bkaslky, it was decided, in conformity to the general law, that the state is the absolute owner of the land below high-water mark under all navigable water within its terri- torial limits, and that such land can be granted to any purpose, either public or private, without making compensation to the owner of the shore. But a grant of a railway along the shore of such waters carries no implication of the (J)) It is now held that waters are Montello, 20 Wall. 430; Ex parte to be deemed navigable where they Boyer, 109 U. S. 629, in which the are in fact navigable, whether tide- question of navigability, as bearing water or not. The Daniel Ball, 10 on the question of jurisdiction of Wall. 557; Miller v. New York, 109 courts of admiralty, is fully consid- U. S. 385. And see The Genessee ered. Statutory' declaration of navi- Chief r. Fitzhugh, 12 How. 443; Fretz gability is unnecessary. Little Rock, V. Bull, Id. 466; Jackson i'. James, ^Mississippi River, & Texas Railroad 20 How. 296; The Hine r. Trevor, 4 Co. v. Brooks, 39 Ark. 403. Wall. 555; The Eagle, 8 Wall. 15; The [*323] § 78.] ERECTIONS OVER NAVIGABLE WATERS. 335 3. lint in lidc-watcrs, and naviL^ablo lakers, the riL^its of the owner of land adjoiniiif^ such waters arc subservient to the ])nblic rij2:hts, and arc consequently subject to IcLnslative control, and any loss the owner of such land may thereby sustain is damnum absque ivjuria.^ 4. It seems to be considered, that the state legislatures liave unlimited power to erect bridges and railways, and make any Ktlicr public works across navigable waters, subject only to the paraniuunt authority of the national government.^ (c) right to use the lands of the state below the high-water mark. Where the riparian owner on the ^Milwaukee River built a wharf in front of his land projecting into the stream, it was held that the city of Milwaukee, being em[X)wered by statute to establish along the shore of the river dock and wharf lines, and to prevent encroachments on snch line, could not declare the plaintiffs wharf a nuisance on the ground of its encroaching on the line established by the city; that whether the riparian owner's title extended beyond the dry land or not, he had a right to build a wharf for his own and the public use, subject to such regulations as the legislature might establish; and that if the city deemed its removal necessary for the public good it should make compensation to the owner. Yates v. Milwaukee, 10 Wall. 497. * People V. Rensselaer & Saratoga Railroad Co., 15 Wend. 113; Bailey u. Philadelphia & Wilmington Railroad Co., 4 Harring. Del. 3Sf); People v. St. Louis, 5 Oilman, :J.'j1; Spooner v. McConnell, 1 McLean, 337; Pennsyl- vania V. Wheeling Bridge Co., 13 How. .518; Willson v. Blackbird Creek ^birsh Co., 2 Pet. 215; Hogg r. Zanesville Canal Co., 5 Ohio, 410; Tnitcd States V. New Bedford Bridge, 1 W. & M. 401; Attorney General v. Hudson River Railroad Co., 1 Stockt. 52G; Getty v. Same, 21 Barb. G17. In Siiiitli )•. Maryland, 18 How. 71, it was held that the soil below low- water mark in the siiores of Chesapeake Bay in !^Laryland belonged to the state, subject to any prior lawful grants by the state or the sovereign power before the Declaration of Independence. But that this right of soil in the state is a trust, for the enjoyment by the citizens of certain public rights, among which is the connnon right of fishery; that tlie state may lawfully regulate the exercise of (r) Ciilman r. Pliiliulclpliia, 3 Wall, the head of a department. ^Miller r. 713;Escanaba&LakeMichiganTran.s- New York, 109 U. S. 385; United portation Co. v. Chicago. 107 U. S. States v. Milwaukee & St. Paul Rail- f>78; Cardwell v. American Bridge road Co., 5 Biss. 410, 420. As to in- Co.. 113 IT. S. 205; Hunt r. Kansas terference by Congress with a bridge & Missouri Bridge Co., 11 Kan. 412. erected pursuant to its own i-esolutions Congress has power to regulate or pro- and to licensees from the state, seo liiliit the erection of bridges over the Newport & Cincinnati Bridge Co. v. navigable rivers of the I'nited States, United States, 105 U. S. 470. and it may delegate that authority to [*323J 336 EMINENT DOMAIN. [PART III. *5. The Commonwealth of Massachusetts has no interest m jflats where the tide ebbs and flows, which it is necessary to have * appraised, under the statute, when such land is taken, as appur- tenant to the upland, for the purpose of building a railway.^ And this right, and declare vessels forfeit for violations of regulations so estab- lished; and that the exercise of such powers by the state is no infringement of the paramount authority of Congress, or of the exclusive admiralty and maritime jurisdiction of the United States courts. In Milnor v. Railroad & Plank- Road Cos., 6 Am. Law Reg. 6, where it was sought to restrain the companies from bridging the Passaic River below Newark, a port of entry having some foreign commerce and some internal navigation, it was held that a federal court had no jurisdiction to restrain the erection of a bridge over a navigable river wholly within a particular state, the erection being authorized by the state — and this, although Congress had created a port of en- try above the point where the bridge was to cross. Willson v. Blackbird Creek Marsh Co., 2 Pet. 245, was relied on as an authority, the dicta in Devoe i*. Pen- rose FeiTy Bridge Co., 3 Am. Law Reg. 83, were overruled, and Pennsylvania u. Wheeling Bridge Co., 13 How. 579; Gibbons v. Ogden, and Willson v. Black- bird Creek Marsh Co., explained and reconciled so as to permit a state to authorize such an erection. ^ Walker v. Boston & Maine Railroad Co., 3 Cush. 1; s. c. 1 Am. Railw. Cas. 4G2. Under a colonial ordinance of 1647, of the flats on creeks, coves, and arms of the sea, in ]\Iassachusetts, where the tide ebbs and flows, one hundred rods are appurtenant to the upland, and the owners of the adjoining land have an estate in fee therein, subject to the paramount right of the state to make public erections, and subject also to such restraints and limitations of the proprietors' use of them as the legislature may see fit to impose for the pre- servation and protection of public and private rights. Commonwealth v. Alger, 7 Cush. 58. And a similar custom or usage prevailed to some extent in some of the other American colonies, traces of which will be found in some of the more recent decisions in the states which have succeeded them. The question of the right of riparian owners in Massachusetts is learnedly dis- cussed in Commonwealth v. Roxbury, 9 Gray, 451, and the reporter's note, by Mr. Justice Gray. In 1760 the legislature of New Jersey passed an act to enable the owners j of meadows along a small creek emptying into the Delaware, into which the tide ordinarily flowed for about two miles, to support and maintain a dam, to shut out the tide and drain the meadows. The act provided tliat the bank, dam, and other waterworks then or thereafter to be erected, should be erected and supported at the equal expense of all the owners of the meadows, and provided the way in which the natural watercourse should be kept clear, and for the annual election of managers empowered to assess the owners for re- pairing and maintaining the dam. The act was accepted, managers elected, and a large amount expended, from time to time. In 1854 the legislature declared the creek to be a public highway, and empowered the municipal authorities to remove the dam, and open the creek to navigation. It was held, [*324, *325] § 78.] ERECTIONS OVER NAVIGABLE WATERS. 337 as * the owner has the ritilit to raise such flats, by filling- up, if he is compelled to do more filling up to secure free access to other * lauds, by reason of the construction of a railway, it is proper to be considered by the jury in estimating land damages to sucli owner." i>ut the owner of a tide-mill has no right to have such rijtarian flats as he owns, kept open and unobstructed for the free flow of tide-water to his mill. 0. The adjoining owners of such flats in Massachusetts have the right to build solid structures to a certain extent, and thus obstruct the ebb and flovv of the tide, if in so doing they do not wholly obstruct the access of other proprietors to their houses and lands ; and if the mill-owner and other proprietors suffer damage therefrom, it is damrium absque injuria.^ (il) "There- fore," say the * court, " so far as the railroad erected by the legis- lature affected the right of the claimants to pass and repass to and from their lands and wharves with vessels, it was a mere regulation of a public right, and not a taking of private property for a public use, and gave no claim for damages." 7. The grant of a railway " to the place of shipping lumber " on a tide-water river, justifies an extension across flats and over on a bill to restrain the township committee from performing this duty, that the legislature had the right to make the grant, thei'e being nothing to show that the public interest demanded the navigation of the creek, and was the sole judge of the navigability of such streams; that the act of 17G0 not only authorized the owners of the meadows to continue the dam, but gave the authority of the state to compel its continuance; that the act of 1851 was in violation of the Federal Constitution, inhibiting the several states from passing laws impairing the obligation of contracts, and also repugnant to the state constitution, as a taking of private property for public use, without just com- pensation, a partial destruction or diminution of the value of property being, to that extent, a taking. Glover r. Powell, 2 Stockt. 211. '' Commonwealth c. Bo-ston & Maine Railroad Co., 3 Cush. 25; s. c. 1 Am. Railw. Cas. 482; Fitchburg Railroad Co. v. Boston & Maine Railroad Co., 3 Cush. 58; s. c. 1 Am. Railw. Cas. 508. * Davidson v. Boston & :\Iaine Railroad Co., 3 Cush. 91 ; s. c 1 Am. Railw. Cas. 534; s. p. Stevens v. Paterson & Newark Railroad Co., 5 Vroom, 532. ('0 Tn Massachusetts the littoral pied, and subject to restrictions im- proprietor owns (o low-water mark, posed by the state, in the exercise of subject to a right in the public to use its power to protect public harbors, the space between higli and low water &c., and prevent encroachments there- mark for purposes of navigation as on. Boston v. Lecrow, 17 How. 42G; long as he allows it to remain unoccu- Richardson v. Boston. 21 How. 188. VOL. 1.-22 [*32G-*328J 338 EMINENT DOMAIN. [PART III. tide-water to a point at which lumber can bo conveniently shipped.^ 8. In a case in the House of Lords,^*^ it was held, that where a statute authorizes a company to construct certain works, as a har- bor, it is to be presumed they were to have power to execute all works incidental to their main purpose, and which they deem necessary, provided they act bona fide. 9. Accordingly, when public trustees for improving the naviga- tion of the Clyde were authorized by statute to acquire lands adjoining the river, and to construct a quay, or harbor, and having acquired part of A.'s land proposed to erect a large goods-shed fronting the river, and between the rest of A.'s land and the river, it was held, that although the statute gave no express power to erect sheds, it must be presumed that a harbor, equipped with all the most approved appliances for trade, was intended by the legis- lature, and that therefore a power to erect sheds was im plied. ^"^ 10. An interesting case ^^ has been determined by the * Supreme Court of Iowa in regard to the important question, to what extent the large rivers in this country, as the Mississippi, are to be regarded as navigable waters, above where the tide ebbs and flows. 11. It is there held, that all waters are to be regarded as navi- gable, above where the tide ebbs and flows, which are of common use to all the citizens of the republic for purposes of navigation, or 9 Peavy v. Calais Railroad Co., 30 Me. 498; s. c 1 Am. Railw. Cas. 147. See also Babcock v. Western Railroad Co., 9 Met. 553; s. c. 1 Redf. Am. Railw. Cas. 191. So the grant of a railway between certain termini, the line between which passes over navigable rivers, authorizes the company to bridge such rivers. Attorney-General v. Stevens, Saston, 369. 10 Wright V. Scott, 34 Eng. L. & Eq. 1; supra, § 63. 11 McManus v. Carmichael, 5 Am. Law Reg. 593. It is maintained in this case upon gi'eat research, that a large number of the states have adopted similar views in regard to their large rivers. See also Bowman v. Wathen, 2 McLean, 376, where the learned judge lays down the rule that, except for certain purposes such as the erection of wharves, &c., which do not obstruct navigation, the riparian right on navigable streams cannot extend generally beyond high-water mark; but that on the Ohio the right extends to the water, with the right of fishing and every other right properly appurtenant to the soil, and that any act of a state short of an exercise of the power to appropriate private property for public use, attempting a transfer of those rights without the consent of the proprietor, would be inoperative. See also Lehigh Valley Railroad Co. v. Trone, 28 Penu. St. 206. [*329] § 78.] ERECTIONS OVER NAVIGABLE WATERS. 339 that navigability, in fact, is to be regarded as the decisive test, rather than the ebb and flow of tlio tide. And it is here main- tained, that the acts and declarations of the United States con- stitute the Mississippi a public highway, and that consequontlv the riparian proprietors have no interest in the lands below high- water mark. (^) 12. And where one, upon the shore of a navigable stream or arm of the sea, is cut off by a railway or other public work from all communication with the navigation, to the injury of wharves or other erections which the party made upon his land, it has been held that such person is entitled to damages under the statutes allowing parties compensation where their estate is " in- juriously affected." ^^ 13. And it seems to be regarded as settled, that where the grant of any authority, by the state legislature, in regard to naviga- ble waters, in its exercise works an interference with the exclusive power of Congress to regulate commerce, whether foreign or in- ternal, such interference, being unlawful, is a nuisance, and any private person suffering special damage thereby is entitled to an action at law, or to maintain a bill in equity for a perpetual injunction. ^2 * 14. The questions are very numerous wliieli have arisen in regard to the conflicting rights of different grantees, affecting franchises and easements of different kinds. In a case in New 12 Bell V. Hull & Selby Railway Co., M. & W. G99. i» Pennsylvania v. Wheeling Bridge Co., 13 How. 518; s. c. IS How. 121. The same principle is recognized in other cases. Works v. Junction Rail- road Co., 5 JNIcLean, 42.'); United States r. Railroad Bridge Co., G McLean, 517. Wlien the case of Pennsylvania v. Wheeling Bridge Co. was last before the court, it was held, that the authority of Congress to regulate commerce included the power to determine what was an obstruction to navigation; and Congress having legalized the bridge in question, after judgment of the court to abate it, but before the judgment was carried into effect, it was held, tliat the occasion for executing the judgment was thereby removed. Mr. Justice Nelson, among other things said that although riparian owners might con- struct wharves, &c., for the purpose of subjecting the stream to the various uses to wliich'it might be applied, yet if those structures materially interfered with tiie public right they might be removed or abated, and tiiat the internal streams of a state were, as to the public right of navigation, exclusively under state control. (f) See supra, note (a). [*330] 340 EMINENT DOMAIN. [PART III. Ilumpshire,^* some questions affecting the construction of grants, and reservations of this kind, are very extensively discussed. 15. It seems to be well settled, both in England and in this country, that if there is no legal authority for the erection of a pier in a navigable river, such erection will become a nuisance iper se, and that no evidence can be received to show that although illegal it will do no harm, that question being wholly imma- terial.^-^ 16. Where the act of Congress, laying out the city of Burlington, Iowa, reserved a strip of land along the bank of the Mississippi River, to be forever used for a highway and other public uses, and, after the sale of lots abutting upon the reservation. Congress released its title to the city, it was held that the dedication of the strip of land was a contract, and could not be repealed, or revoked ; and that the title of the city was subject to the original conditions of the reservation ; and that the accretions from the river were the same as the rest of the strip ; that adjoining land-owners had such an interest that they could restrain the city from applying the land to private uses ; but that it might be applied to the uses of a railway, for any such purposes as would justify the exercise of the right of eminent domain.^*^ (/ ) 1^ Goodrich v. Eastern Railroad Co., 37 X. H. 149. 15 People V. Vanderbilt, .38 Barb. 282. 1^ Cook V. Burlington, 30 Iowa, 94. (/) Confirmed in Cook v. Burlington, 36 Iowa, 357. [*330] § '9] ERECTIONS OBSTRUCTING STREAMS. iJ41 SECTION XVII. Obstruction of Streams hij Company'' s Works. 1. Company cannot divert stream, witli- out iiKikinj,' compensation. 2. Company liable lor defective construc- tion. 3. So also for the use of defective works built b}' otliers. 4. Company liable to action where man- damus will not lie. 5. Company liable for defective works done according to its plans. G. When a railway " cuts off " wharves from the navigation. 7. Stream diverted must be restored and maintained. 8. Company cannot cast surface water on adjoining land e.xccpt from strict necessity. 9. Public company exceeding its powers liable to an action. 10. In such cases equity will relieve by injunction. § 79. 1. Ill regard to the obstruction of streams by building railways, the better opinion seems to be, that the company are boiuid to do as little damage to riparian proprietors as is reason- ably * consistent with the enjoyment of their grant.^ (a) The Rtatc cannot grant the power to divert a stream of water without compensation.^ (h~) * Bougliton r. Carter, 18 Jolins. 405', Hooker v. Xew Haven & Xorthamp- ton Co., 11 Conn. IIG. ^ Gardner v. Newburgh, 2 Johns. Ch. 162. But where a railway takes the land under its general powers, and in estimating damages calls the attention of the jury to the fact that it will become necessary to divert a stream of water (To.ssing it, the owner of the land will have no additional claim for damages when the stream is diverted. And it is not essential to the right of the com- pany to divert the stream, that an express grant for that purpose should be contained in the inquisition. Baltimore & Potomac Railroad Co. v. Magruder, .31 Md. 79. (rt) An action for damages for oKstructing a navigable stream is an action in tort. Doughty t\ Atlantic & North Carolina Railroad Co., 78 N. C. 22. That a simple obstruction is a nuisance is a matter of fact for the jury. Delaware & Hudson Canal Co. V. Lawrence, 2 Hun, 1G3. ('>) But wliere a company acts within the limits of its franchises, and has the rigiit of way and uses due care and skill, it is not liable for injuries, the natural and unavoidable effect of the road. St. Louis, Iron Mountain, & Southern Railway Co. r. ]\Iorris, 3.") Ark. G22. Tims, it is not liable for the ovei-flow of a stream caused by the necessary and proper deration of its roadbed on its own land, and not in the channel of the stream. IMoyor r. New York Cen- tral & Hudson River Railroad Co., 8S X. y. 3.')1. As to the diversion of streams under the English statutes,. See Pngh i-. Golden Valley Railway Co. , Law Rep. 12 Ch. 271; s. c. Law Rep. [*331] 342 EMINENT DOMAIN. [PART III. 2. Thus if by making needless obstructions in streams, in the erection of bridges, or by imperfect or insufficient skiices or ducts for the passage of streams, intersected by a railway, the land or adjoining property is injured, the company are liable.^ (c) 8 Hatch i\ Vermont Central Railroad Co., 25 Vt. 49 et seq. ; Mellen v. Western Railroad Co., 4 Gray, 301 ; March v. Portsmouth & Concord Railroad Co., 19 N. H. 372. In Brickett v. Morris, 12 Jur. n. s. 803, the House of Lords, in a Scottish appeal, for the first time, as was claimed by Lord Westbury, estab- lished the proposition that where an adjoining riparian proprietor builds in the channel of a running stream, it is incumbent on him to show that no detriment will thereby ensue to the adjoining proprietor. The propositions here declared are, that riparian proprietors have a common interest in the water of a running stream, and a separate property in the alveus, or channel thereof, vsque ad me- dium filum Jluminis. But no proprietor may so use his property in the channel as to affect the interest of the opposite owner; and, in order to entitle a ripa- rian proprietor to relief against building on the channel, it is not necessary to prove that damage to him has been, or is likely to be, caused thereby. In such case the onus of showing that no damage will arise, lies on the person mak- ing the encroachment. Anything done in the channel which produces no sensible effect on the stream is allowable. Upon the question whether any such rule, as to the burden of proof in such cases, could fairly be applied to railway structures necessarily built in the channel in crossing a running stream, the company having the right to make the erections in the most pru- dent manner, it would seem that the company could be held responsible only for such present or prospective damage as could be established by legal evi- dence. And no presumption against the company should be raised on the mere ground of its having done what its powers allowed it to do. But the owner of the stream is not responsible for damage resulting to riparian owners in consequence of erections by other parties acting under an independent claim of right. Saxby v. Manchester, Sheffield, & Lincolnshire Railway Co., Law Rep. 4 C. P. 198. Consent of the land-owner to the erections being made will not affect his remedy under the statute. Thames Conservators v. Pimlico Rail- way Co., Law Rep. 4 C. P. 59. 15 Ch. 330. Under the statutes of 90 111. 514. Xor by unskilful con- Ohio, see Valley Railway Co. v. Bohm, struction to overflow lands. St. Louis, 34 Ohio St. 114. Under the statutes Iron Mountain, & Soutliern Railway of Iowa see Rensch v. Chicago, Bur- Co. v. Morris, 35 Ark. 022. lington, & Quincy Railroad Co., 57 (c) A company is bound to provide Iowa, 687. Right of way does not culverts, &c., and is liable for injuiy include the right to divert a stream to adjacent lands caused by an over- from its natural channel to the injury flow resulting from a failure to perform of the land-owner. Stodghill v. Chi- that duty. Carriger v. East Tennessee, cago, Burlington, & Quincy Railroad Virginia, & Georgia Railroad Co., 7 Co., 43 Iowa, 20; Chicago, Rock Is- Lea, Tenn. 388; Mississippi Central land, & Pacific Railroad Co. v. Carey, Railroad Co. v. Caruth, 51 Miss. 77; [*331] § 79.] ERECTIONS OBSTRUCTING STREAMS. 343 3. So, too, the company arc liable to pay damaj^cs for an injury caused to the plaintiff by flowing- hia land in a great freshet, in consequence of their bridges damming up the water, although the bridges were erected by another company before tlic defendants' company was chartered,'* and there had been no request to the defendants to remove the obstruction.^ 4. And where the waters on certain lowlands were flowed back upon the i)laintiff's land, by reason of insunicient openings in a railway constructed across such lowlands, it was held that the company were liable to make good the damages sustained by plain- tiff, although no statute required them to make the openings, and they could not be compelled to do so by writ of mandamus.^ (cZ) * Brown r. Cayuga & Susquehannah Railroad Co., 12 N. Y. -180. * Per Dkxio, J., in Brown v. Cayuga & Susquehannah Raih'oail Co., 12 X. Y. 486. But the question as to the liability of the company for continuing the ob- struction, in the absence of notice to remove it, was not decided. The neces- sity of a special request is discussed in Norton v Valentine, 14 Vt. 239, 244. In Hubbard v. Russell, 24 Barb. 404, it is held, that in order to recover dam- ages of the " continuator of a private nuisance, originally erected by another," there must be proof of a request to remo\'e it. But where a railway company bought up a navigation company, and suffered the works to fall to decay, so that the harbor was damaged, the company was held liable to the municiiiality. Although but a non-feasance in form, it operated substantially as a misfeas- ance, the locks of the navigation company having been maintained and used in such a state as to cause the injury. Preston v. Eastern Counties Railway Co., 30 Law T. 288; s. c. nom. Preston v. Xorfolk Railway Co., 2 II. & N 735. * Lawrence c. Great Northern Railway Co., 4 Eng. L. & Eq. 2G5; s. c 16 Q. B. Gi:}, and G Railw. Cas. C5G. Same v. Mason, lb. 231. And bound that the company is bound to provide also to employ the knowledge and against such floods as may reasonably skill in engineering which is ordinarily be expected. Nor is the company, known and practised in such works; though bound to provide suitable cnl- but it is not liable merely for not con- verts, ditches, &c., liable for such inju- structing a culvert sufficient to pass ries as the land-owner might prevent by extraordinary floods. Baltimore & the use of reasonable means. Munkers Ohio Railroad Co. v. Sulphur Spring r. Kansas City, St. Ji)seph, & Council School Di.strict, 9G Penn. St. 65. See Blufi"s Railroad Co., 72 Mo. 514. ^Vhere also Illinois Central Railroad Co. r. practicable a culvert should be so con- Bethel, 11 Brad. Ap. 17; Houston & structed as to permit the passage of a Creat Northern Railroad Co. i\ Parker, stream in its natural channel. Van 50 Tex. 330; Ellct r. St. Louis, Kan- Oisdol v. Burlington, Cedar Rapids, & sas City, & Northern Railway Co., 70 Northern Railway Co., 50 Iowa, 470 Mo. 518. But see Union Trust Co. v. Ql) Right of action for damages Cuppv, 26 Kan. 754, where it is said caused by an overflow, the result of [*331j 344 EMINENT DOMAIN. [part III. So, too, in regard to other public works, if damage accrue to others in consequence of their imperfect construction, the propri- etors are * liable, as for instance a municipal corporation, for in- sufficient sewers, whereby plaintiff's factory was overflowed in a freshet, and the property therein seriously injured.' 5. In a case, where the plaintiff's garden was overflowed, by the manner in which an excavation was made, in the course of construction of a railway across a road, or highway, by carelessly cutting into a drain, or culvert, and letting out the water,^ it seems to have been admitted, on all hands, that the company would have been liable for the injury if it had been done by per- sons under their control, or in compliance with the directions of their surveyor or engineers.^ '' Rochester White Lead Co. v. Rochester, 3 Corast. 463. See also Radcliff V. Brooklyn, 4 Comst. lO.j; Xevv York v. Furze, 3 Ilill, 612; Bailey v. New York, 3 Hill, 531. 8 Steel V. Southeastern Railway Co., IG C B. 550; s. c. 32 Eng. L. & Eq. 366. See infra, § 129, for a full statement of this case. But there is no lia- bility incurred to a mill-owner below, by cutting off springs, in sinking wells on one's own land. Chasemore v. Richards, 2 H. & N. 168; s. c. 29 Law T. 230. narrowness in the span of a bridge, Pacific Railroad Co. v. MoflBtt, 75 111. does not accrue on the construction of the bridge, but only on the over- flow. Moison V. Great V\'estern Rail- way Co., 14 U. C, Q. B. 109; Vanhour V. Grand Trunk Railway Co., 18 U. C, Q. B. 356. But see Carron r. Great Western Railway Co., 14 U. C, Q. B. 192. As to liability in particular cases of overflow, and defences to actions therefor, see McCormick v. Kansas City, St. Joseph, & Council Bluffs Railroad Co., 70 Mo. 359; Houston & Great Northern Railroad Co. V. Parker, 50 Tex. 330; St. Louis, Iron Mountain, & Southern Railway Co. V. Morris, 35 Ark. 022. As to the measure of damages, see Chicago, Rock Island, & Pacific Railroad Co. V. Carey, 90 111. 514; St. Louis, Iron Mountain, & Soutliern Railway Co. v. Morris, supra; Van Hoozier r. Han- nibal & St. Joseph Railroad Co., 70 Mo. 145; Chicago, Rock Island, & [*332] .524; Wagner v. Long Island Railroad Co., 2 Hun, 633. For the abatement of a nuisance by obstruction to navigation a private person cannot maintain a suit unless he has suffered special injury. Jarvis V. Santa Clara Valley Railroad Co., 52 Cal. 438. For the turning of a current so as to wash away soil, the land-owner may recover for prospective injury, and such recovery will bar an action for damages caused by a subsequent unusual flood. Fowle v. New Haven & Nortliampton Co., 112 Mass. 334. And see Stodghill v. Chicago, Bur- lington, & Quincy Railroad Co., 53 Iowa, 341. But where the damage is by annual overflow and injury to crops, redress may be bad by successive actions. Van Hoozier v. Hannibal & St. Joseph Railroad Co., 70 Mo. 145. § 70.] ERECTIONS OBSTRUCTFKG STREAMS. 34.0 I). And where tlic plaintilf owned a dock on the cast side of llud-son River, on the margin of a bay, under a cliartcr from the state, in 1849, and the Hudson River Railway, in pursuance of its charter granted in 184(3, constructed tlieir road across the bay on pik^s, about nineteen liundred feet west of tlie dock, with a iit if the railway company liavc assumed to appro|)riatc the land in violation of the provisions of the statute to be com- plied with on their part, their acts are ordinarily to be regarded as trespasses ; and where they liave acquired the rifrht to tiie use of the land, but have omitted some duty imposed by the statute, or where they have been guilty of negligence, or want of skill, in the exercise of their legal rights, they make themselves liable to an action upon the case at common law.- (^>) the generally received opinion, that tlie statutory remedy, being more ample and more si>ecific, is ordinarily to be regarded as exclusive. But the settled difference of opinion among the judges of the Queen's Bench, in Keimett Navigation Co. v. Withingtou, 18 Q. B. 531; s. c. 11 Eng. L. & Eq. 472, shows that the matter is not quite settled in England. The learned editors of the American Railway Cases have an able and veiy satisfactory note on this subject in which most of the authorities bearing on the jx)int are thor- oughly reviewed. 1 Am. Railw. Cas. 1G6 et seq. In Aldricli r. Cheshire Railroad Co., 1 Fost. N. II. 359; s. c. 1 Am. Kailw. Cas. 20G, it is held, that the statute remedy is exclusive of all others. So also in Troy v. Cheshire llailroad Co, 3 Fost. N. H. 83, it is held, that the statute remedy must be fol- lowed, as far as it extends, but if it extend to part only of the injury occa- sioned, the party may have his action at common law for the residue. But where a railway company is ordered to make and maintain a private way for the benefit of a party, and fails to comply, the appropriate remedy is the one pointed out in the statute. White v. Boston & Providence Railroad Co., 6 Cush. 420. And where the statute provides no specific remedy in such a case, an action on the case will probably lie. In Ambergate, Nottingham, & Boston & Eastern Junction Railroad Co. v. Midland Railway Co., 2 Ellis & B. 823; s. c. 22 Eng. L. & Eq. 2S9, under a statute giving a penalty for one company running its engines on the track of another company, without first having obtained the requisite certificate of approval of the engines by the second company, it was held, that this did not take away the common-law right of seizing the engines, while on the track, damage feasant; and the distress having been so made, and the first company having demanded a surrender, after the engine had been removed from the defendant's line, with the declared purpose of using it again in the same way, that such demand was illegal, and the defendant justified in not acceding to it. See also New Albany & Salem Railroad Co. v. Connelly, 7 Ind. 32; Leviston V. Junction Railroad Co., 7 Ind. 597; Lebanon v. Olcott, 1 N. II. 339; Victory V. Fitzpatrick. S Ind. 281. See, also, Colcough v. Nashville & Nortli western Railroad Co., 2 Head, 171; Brown v. Beatty, 34 Miss. 227; Indiana Central Railroad Co. i'. Oakes, 20 Ind. 9. - Watkins v. Great Northern Railway Co., 12 Q. B. 9G1 ; s. c. G Eng. L. & Eq. 179; Dean v. Sullivan Railroad Co., 2 Fost. N. II. 310; s. c. 1 Am. (/') Burlington & IMissouri River 421. And see St. Joseph & Denver Railroad Co. v. Schluntz, 14 Neb. Railroad Co. v. Callcndor, 13 Kan. [•335] 350 EMINENT DOMAIN. [PART III. * 3. And the courts of equity will in many cases interfere by injunction, where railway companies are proceeding to take land contrary to the provisions of the act of parliament.^ 4. In the House of Lords, in one case,'^ this principle is very extensively discussed, although not arising in the case of a rail- way, or where the land itself was proposed to be taken. But Raihv. Cas. 214; Lichfield v. Simpson, 8 Q. B. G5; Furniss v. Hudson River Railroad Co., 5 Sandf. 5 51 ; Turner v. Sheffield & Rotherham Railway Co., 10 M. & W. 425. In the last named case, the injury complained of was the obstruc- tion of ancient lights by the erection of the company's statiou-house ; and the dust, &c., from the station-house and embankment drifting into the plaintiff's house. The plaintiff's house not being on the schedule attached to the bill, the company had no right under the act to take it, or injuriously to affect it. So that the parties stood as at common law. See also Shand ik Henderson, 2 Dowl. P. C. 519; Davis v. London & Blackwall Railway Co., 2 Scott N. R. 74; s. c. 2 Railw. Cas. 308. 8 Stone V. Commercial Railway Co., 9 Sim. 621; s. c. 1 Railw. Cas. 375; Lord Chancellor in Man.ser u. Railway Co., 2 Railw. Cas. 380, 391; Priestly V. Manchester & Leeds Railway Co., 4 Y. & Col. Ex. 68; s. c 2 Railw. Cas. 134; Lowdon & Birmingham Railway Co. v. Grand Junction Canal Co., 1 Railw. Cas. 224. In this case, as well as the last preceding, it is said the company is to be the judge of the most feasible mode of carrying forward its own operations, and is not to be called to account for the exercise of this dis- cretion, so long as it acts bonajide, and with common prudence. But it affords no just ground of equitable interference, that the special tribunal, provided by statute to have exclusive jurisdiction of certain claims, is altogether incompe- tent to decide such questions as naturally arise. If any such defect exists, the legislature alone can afford redress. Barnsley Canal Co. v. Twibell, 7 Beav. 19; s. c. 3 Railw. Cas. 471. Nor is the land-owner entitled to maintain a common-law action, because he refused to join in the proceedings under the statute, the company having proceeded ex parte, and caused an appraisal, and deposited the sum awarded for compensation. Hueston r. Eaton & Hamilton Railroad Co., 4 Ohio St. 685. See also "Western Maryland Railroad Co. v. Owings, 15 Md. 199; Sturtevant v. Milwaukee, "Watertown, & Baraboo Valley Railroad Co., 11 Wis. 61; Powers v. Bears, 12 Wis. 213; Davis v. La Crosise & Milwaukee Railroad Co., 12 W^is. 16; Burns v. Milwaukee & Mississippi Railroad Co., 9 Wis. 450. * Imperial Gas Light & Coke Co. v. Broadbent, 7 H. L. Cas. 606; s. c. 5 Jur. N. s. 1319. 496; McLenden r. Atlanta & West the company enter and construct its Point Railroad Co., 54 Ga. 293; Dun- road, he cannot maintain tre.spass, lap V. Toledo, Ann Arbor, & Grand but onh' proceed under the statute for Trunk Railway Co., 50 Mich. 470. compensation. Hanlin v. Chicago & But where the owner of land con- Northwestern Railway Co., 61 Wis. sents either expressly or tacitly that 515. [*336J § 81.] STATUTE REMEDY EXCLUSIVE. 351 here the injury comjjlained of was, that the company's works, in the manner in which they had been carried on, rendered tlie re- spondent's land useless. This was done by means of the gas escaj)ing from tlie company's works deadening the life of vegeta- tion, the respondent being a market-gardener. The rcsj)ondent had brought an action against the company for the nuisance, which by agreement, upon the suggestion of the court, had been n-ferred to an arbitrator, who had reported damages, as having accrued in the mode complained of, to a considerable extent. * The comjiany were now proceeding to make a very extensive ad- dition to their works, when the respondent obtained an injunction against them, M'hich, upon final hearing before the Chancellor, assisted by the common-law judges, had been made perpetual,^ and the question was then a])j)calcd by the company into the House of Lords. 6. It was here held, affirming the decision below, that in such case the plaintiff in equity cannot claim a perpetual injunction, until his right is first established at law. But this was sullicicntly dune, in the present case, by the award of the arbitrator. IJut after the right is once established at law, it is the province of tlie equity judge to determine how far the cause of complaint may have been removed by any subsequent alteration of the works ; and this question will not be referred to a trial at law. G. It was also held here that the respondent had no remedy under the statute, and consequently, although such statutory remedy to its extent was necessarily exclusive of all others, yet where the wrong done is not authorized by these powers, the com- mon-law right of action still remained.'^ 7. The general principle that the statute remedy, as far as it extends, is exclusive, seems to be universally adhered to in the American courts, with slight modifications, some of which are, and some are not, perhaps, entirely consistent with the mainte- nance of the general rulc.'^ ^ 8. c. before Vice Chancellor Wood, 2 Jur. x. s. 1132; before the Chan- cellor, 3 Jur, N. s. 221. " See Hole v. Barlow, 4 C. B. x. s. 334; Attorney-General r. Sheffield Gas Consumers' Co., 3 De G. ]M. & G. 304; Attorney-Goneral v. Nicliol. 16 Ves. 338; Wynstanley r. Lee, 2 Swanst. 333; Haines v. Taylor, 10 Beav. T-'i. ' Pettibone v. La Crosse & Milwaukee Railroad Co., 14 Wis. 443; Vilas v. Milwaukee & Mississippi Railroad Co., 15 Wis. 233. [*337J 352 EMINENT DOMAIN. [part III. 8. It was held in one case, where the land damages had been assessed under the statute, and judgment rendered for the amount against the company, that a subsequent company, formed by the mortgagees of the first company, were responsible for the amount of such judgment, if they continued to operate the road and use the right of way for which the judgment was rendered.^ But this seems a considerable stretch of construction, although eminently just and reasonable. *SECTION XX. Lands injuriously affected. 1. Obstruction of way, loss of custom. 2. Equity will not enjoin the exercise of a clear legal right. 3. Company liable for building railway, so as to cut off wharf. 4. But not for crossing highway near a dwelling on level. 5. English statute only includes damages by construction only, not by use. 6. Equity will not enjoin the assertion of a doubtful claim. 7. Damages unforeseen at the time of the appraisal, recoverable in England. 8. Injuries to ferry and towing path compensated. 9, 10. Remote injuries not within the statute. 11. Damages compensated, under statute of Massachusetts. 12. Damages not compensated, as being too remote. 13. Negligence in construction remedi- able at common law. 14. So of neglect to repair. 15. Recovery under the statute, &c. 16. Possession by company, notice of ex- tent of title. 17. Companies have riglit to exclusi»i; possession of roadway. § 82. 1. The right of a party to claim consequential damages, where his land was not taken, but only injuriously affected, (a) was 8 Pfeifer o. Sheboygan & Fond du Lac Railroad Co., 18 Wis. 155. (ff) As to injuries to abutting own- ers from the construction, &c., of rail- roads in streets and highways, by way of embankments, excavations, chang- ing of grades, from smoke, cinders, dust, &c., see supra, § 76. "Where land is protected from over- flow by a ridge on land of an adjoin- ing proprietor, the owner may recover for a cutting thereof by a railway so that the water flows through in times of flood, and deposits sand, gravel, &c. [*338] Eaton V. Boston, Concord, & Montreal Railroad Co., 51 N. II. 504. A riparian owner, cut off from ac- cess to a navigable river by a highway built between high water and low water mark, has no claim to damages. Tom- lin r. Dubuque Railway Co., 32 Iowa, 106. And possible damages to bush land from greater exposure to winds and storms and greater liability to inju- ry by fire from engines, are too remot';. Ontario & Quebec Railway Co. v. Ta\- § 82.] LANDS INJURIOUSLY AFFECTED. 353 very thoroughly discussed by Lord Truro, Chancellor, in ono casc,^ where the defendant, a furrier, claimed damage, in conse- quence of the dust and dirt, occasioned by the company, having injured his goods, and that his customers had been comiielled, by the obstruction caused by the company's works, to (piit the side of tiie road upon which the defendant's shop was situated, before they arrived at that point, and cross the street to get along, by reason wdiereof he had lost custom. The defendant also claimed that the company had obstructed a passage to his buildings, by which he had an entrance to the back part of his ])remiscs. The Lord Chancellor considered that if the party had any claim for coniiiensation it was to be procured under the statute and esti- mated by the sheriff's jury, and dissolved the injunction. It seems now to be settled by the decision of the House of Lords (Ricket V. Metropolitan Railway), that unless the injury is of such a nature as to be actionable aside from the statute, it will not entitle the i)arty to compensation under the statute, and that in- terruption of business therefore, by making access more incon- venient, will not entitle the party to such corajjensation.'^ (i) But where the * works of a railway diminish the light of premises, al- though the pecuniary value of plaintiff's interest is not diminished, property in the neighborhood generally having advanced in ])rice, the owner is entitled to compensation.^ Where the value of a * East & West India Docks & Birmingham Junction Railway Co. v. Gattke, 3 Macn. & G. 15.'); s. c. 3 Kng. L. & Eq. 59. 2 Law Rep. 2 II. L. 175. ' Eagle V. Charing Cross Railway Co., Law Rep. 2 C. P. G38. A. owned a house on a liighway. A railway company, inider powers given them by Rtjitute, made an embankment on the highway opposite the house, thereby narrowing tlie road from fifty to thirty-three feet, thus materially diminishing the value of the liouse for sale or letting, and obstructing the access of liglit and air. It was held that A. had sustained particular dam.ige fiom thework.s; that the damage would have been actionable if not authorized by statute; that lor, 6 Ont. Q. B. 100. Nor is the com- r. Walker, Law Rep. 7 Ap. Cas. 2.'>9; pany liable for an obstruction to the and see also Glover r. North Stafford- flow of more surface water. Ilanlin v. shire Railway Co., 10 Q. B. 91'2, hold- Cliioago & Northwestern Railway Co., ing lands injuriously affected where a 61 Wis. 515; Kansas City & Emporia private right of way over a higliway Railroad Co. r. Riley, 20 Am. & Eng. crossed by the road, appurtenant to the Railw. Cas. IIG. land, was rendered less convenient, and (/') But see Caledonian Railway Co. the value of the land thereby lessened. VOL. I. -23 [*339] 354 EMINENT DOMAIN. [PAKT III, house is lessened by railway works producing noise, smoke, and vibration, the party is entitled to compensation under the statutie.* But where the railway company lowered a higliway several feet, thereby greatly obstructing access to plaintiff's dwelling, and obliging him to make use of a ladder for that purpose, it was held that no claim could be maintained under that clause in the statute for injuriously affecting land, the injury complained of being one of a permanent nature, and therefore the subject of compensation under the general provision for land damages.^ But where tiie works of a railway intercepted water which would have percolated through the strata of the earth into plaintiff's well, and also drained off water which had reached the well by such perco- lation,^ (c) it was held the land-owner had no remedy either under the statute or at common law. 2. This case was an application, by the company, for an injunc- tion to restrain the party from proceeding under the statute, and the court held, that as the party had a clear legal right, under the act of parliament, they could not be deprived of pursuing it in the * mode pointed out, and fully affirmed the views of Lord Denman, C. J., in Regina v. Eastern Counties Railway Company,'^ where the injury done was an injury to his estate, and not a mere injury to him personally or to his trade; and that, these three things concurring, he was entitled to compensation under statute 8 Vict. cc. 18, 20. Beckett v. Midland Railway Co., Law Rep. 3 C. P. 82. * Brand v. Hammersmith & City Railway Co., Law Rep. 2 Q. B. 223; 3. C. reversed in Law Rep. 4 H. L. 17L See also infra, pi. 8, note IG. ^ Moore v. Great Southern & Western Railway Co., 10 Ir. Com. Law, 46; Tuohey v. Great Southern & Western Railway Co., 10 Ir. Com. Law, 98. But the English courts seem to consider that compensation in such a case may be given under the provision for damages where land is injuriously affected. Chamberlain v. West End of London & Crystal Palace Railway Co., 2 B. & S. 617; s. c. 3 B. & S. 7GS; 8 Jur. n. s. 93.). « New River Co. v. Johnson, 2 Ellis & E. 435; s. c. 6 Jur. n. s. 374. This question is a good deal discussed in a later case, Regina v. Metropolitan Board of Works, 3 B. & S. 710, where it was held that the railway company was not responsible for underground currents of water intercepted by its works, either at common law or under the statute. ' 2 Q. B. 317. See infra, § 99. Here the court held that the injuries complained of clearly came within the act, and Lord Dknman, in closing his (c) As to diversion or obstruction of streams or of surface water, see supra, §§78,79. . [*340] § 82.] LANDS INJURIOUSLY AFFECTED. 866 the damage claimed was by lowering a road upon which the land abutted, so as to impede the entrance to the land and comj)el the owner to build new fences. o. The construction of a railway across flats, in front of i)lain- tifl's wharf, gives him a rigiit to damage under the statute of Massachusetts, although the wharf itself remained uninjured.** (^Z) But the charter of a railway company having authorized them to make certain sj)ecined erections between the channels of two rivers, and such erections having so changed the currents of the rivers as to render more sea-wall necessary to secure certain wharves and flats in the vicinity, it was held that the damage thereby occasioned was damnum absque injuria.^ 4. One cannot claim damage of a railway company, by reason of their track crossing a public highway near his dwelling, upon a level, the highway being the principal approach to his grounds.^*' 5. It is held that the English statute,^^ (e) giving compensa- opinion, makes a very significant reply to a class of arguments, not uncommon on any subjects. " Before we conclude, we .shall briefly advert to an argu- ment much pressed upon us; that if we make this rule absolute, any injury to land, at any distance from the line of railway, may become the subject of com- pensation. If extreme cases should arise, we shall know how to deal with them; but in the present instance, the alleged injury is to land adjoining a road, which has been 'lowered' under the provisions of the act, and which is therefore land irtjuriousli/ affecled, by an act expressly within the powers con- ferred by the company." * Ashby V. Eastern Railroad Co., .5 Met. 3GS; s. c. 1 Am. Railw. Cas. :]56. And in Bell v. Hull & Selby Railway Co., 2 Railw. Cas. 279, a similar decision 18 made under the English statute. But see Gould v. Hudson River Railroad Co , 6 N. Y. 522. ^ Fitchburg Railroad Co. v. Boston & Maine Railroad Co., 3 Cush. 58; 8. c 1 Am. Railw. Cas. 508; supra, § 75. 1" Caledonian Railway Co. v. Ogilvy, 2 Macq. Ap. Cas. 229; s. c. 29 Eng. L. & Eq. 22. " Law T., February, 1857, 329. (ut wliere a tenant gives up premises under a six months* notice from a railway comj)any, when he is entitled to c(mi[)ensa- tion, without demanding it of the company, he is still bound to pay full rent to his landlord.'^ 3. Church pro[)erty in England is estimated with reference to the cost of a new site and similar erections, to be fixed by agree- ment between the company and the diocesan and archbishop of the province. But after this appropriation of the site of a church to secular purposes, the rector is entitled to have his interest in the premises connected therewith estimated at its value for secu- lar uses.^ 4. Where the charter of a company imposed a penalty upon them for any obstruction or interruption of a road, and in the case of a private road gave the right to recover the penalty to the owner of the road, it was held, that the tenant of the farm over which the road passed could not sue for the penalty.^ * 5. Where land of a deceased person is taken for a railway, the heir and not the administrator is entitled to the damages for such taking, and to prosecute for the recovery thereof, although the administrator had previously represented the estate insolvent, and afterwards obtained a license to sell the real estate for tho payment of debts.^" 0. And a tenant, whose lease began before, and who was in possession at the time an injury was done, is entitled to recover damages for an injury sustained by him in building a turnpiko road. 11 But the lessor and lessee are each entitled to recover compensation for the damage sustained by them respectively. '^ " Queen v. London & Southampton Railway Co., 10 A. & E. 3; 3. c. 1 Raihv. Cas. 717. ■' Wainwright v. Ramsdem, 5 M. & W. 602; s. c. 1 Railw. Cas. 714. 8 Ililcoat V. Archbishops of Canterbury & York, 10 C. li. 327. ® CoUinsou ('. Newcastle & Darlinc^ton Railway Co., 1 Car. & K. 540. 1' Roynton v. Peterboro & Shirley Railroad Co., 4 Cush. 407. " Turnpike Road o. Brosi, 22 IVnn. St. 29. >2 Parks y. Boston, 15 Pick. 198. See also Burbridge v. New Albany & Salera Railroad Co., 9 Ind. 546. [•347] 364 EMINENT DOMAIN. [PART III. 7. And where the plaintiff had no access to his land except over the land of his grantor, it was held, that he had a way by necessity across such land, and that he was entitled to maintain an action against a railway company for obstructing it.^^ 8. So also where the free flow of water from a saw-mill is obstructed by the erection of a railway bridge below the mill, the company arc liable to the owner of the mill in an action of tort. But they are not liable for any increased expense thereby oc- casioned to the mill-owner, in getting logs up the stream to his mill, whether the stream be navigable for boats and rafts or not.14 9. Where the statute gives remedy against all persons inter- ested, the occupant of land is liable to be affected by the proceed- ings, and a similar construction will prevail where the remedy is given to all interested. ^^ It seems indispensable to the asserting of any valid claim for land damages that the claimant prove the character and extent of his title. ^^ And it is here said that pos- session alone will not be * regarded as ground of presumption of title in fee. And where the entire fee in the land is condemned to the use of the railway, and the money paid into court, it must be apportioned to the several owners of different interests in the land, as nearly as possible, as if it were the land itself. And the same result will follow where a permanent right of way is given in any form to a perpetual 'corporation.^'^ " Kitnball o. Cocheco Railroad Co., 7 Fost. N. H. 448. " Blood V. Nashua & Lowell Railroad Co., 2 Gray, 137. ^5 Gilbert v. Ilavermeyer, 2 Sandf. .506. The term "owner" in a statute requiring compensation for land taken includes every person having any title to or interest in the land, capable of being injured by the construction of the road, and extends to the interest of a lessee or termor. Baltimore & Ohio Railroad Co. c. Thompson, 10 Md. 76; Lewis r. Railrpad Co., 11 Rich. 91; Sacramento Railroad Co. v. Moflfatt, 7 Cal. 577. ^8 Robbins v. Milwaukee & Horicon Railroad Co., 6 Wis. 630. " Ross V. Adams, 4 Dtitcher, 160; Hagar r. Brainerd, 44 Vt. 294. In such case the party having an unexpired lease will be entitled to so much only of the interest of the fund in court as w'ill indemnify him for his loss of rent, and the rest of the income must accumulate till the expiration of the lease. Wootton's Estate, Law Rep. 1 Eq. 589. And all costs of parties summoned by the railway in order to get a perfect title, must be paid by the company. Haynes v. Barton, Law Rep. 1 Eq. 422. And the costs of paying money out of court for the benefit of a charity must also be borne by the company. [*348J § 84.] ARBITRATION. 865 10. And where a tenant, who licld the land for a term of years, with a strict clause against alienation or subletting, assigned a small portion to a railway, for a temporary purpose, the coni[)any not dealing with the landlord, or giving him any com[)ensation for the use of the land, it was held, that he was entitled to main- tain ejectment against the company and his tenant, for the for- feiture incurred by this subletting.!^ 11. And the damages assessed are payable to the owner of the land at the date of the adjudication, and do not pass by deed to a subsccjuent purchaser.!^ And where the company gave notice to treat for land to a tenant at will, and were allowed to take pos- session and complete their line, a person who had subsequently purchased an undivided portion of the land was not allowed to maintain a bill to restrain the company from the use of tho land.^o ♦SECTION XXII. Arbitration. 1. Attorney, without express power, may I 2. Award binding, unless objected to in refer disputed claim. | court. § 84, 1. It was held that an attorney, who had no authority under seal either to defend or refer suits, might nevertheless Latluopp's Cliarity, Law Rep. 1 Eq. 4G7. A person not summoned, although having knowledge of proceedings to condemn land, is not bound thereliy; but may have an action to protect his interest. Martin v. London, Cliatham, & Dover Railway Co., Law Rep. 1 Eq. 145; 8. c. Law Rep. 1 Ch. Ap. 501. See also In re London, Brighton, & South Coast Railway Co., as to costs of parties summoned. Law Rep. 1 Ch. Ap. 590. '« Legg V. Belfast & Ballymena Railway Co., 1 Ir. Com. Law, l'2i, n. " Lewis V. "Wilmington & Manchester Railroad Co., 11 Rich. 91. But where a third person agreed to pay the land-owner interest on tho agreed compensation for his land damages " if said railway shall be kept in opera- tion," his object being to secure the beneficial operation of the railway by running passenger and freight trains, it was held he was not bound to per- form on his part, merely because the railway occasionally ran a freight train. Jepherson i-. Hunt, 2 Allen, 417. ^ Carnochan v. Norwich & Spalding Railway Co., 2G Beav. IGO. [♦349] 366 EMINENT DOMAIN. [part III. make a valid reference of a disputed claim against the company, under a judge's order.^ 2. And if the company object that the arbitrator awarded upon matters not submitted, they sliould have applied to the court to revoke the submission or set aside the award, upon its return into court ; but not having done so, the claim being set up and enter- tained by the arbitrator, the award is binding.^ (a) The same principles would probably obtain in the American courts. SECTION XXIII. Statute of Limitations. 1. General limitation of actions applies to land claim. 2. Filing petition will not save bar. 3. Acquiescence of forty years by land- owner, effect of. 4. Bar effectual where the use is clearly adverse. § 85. 1. Where neither the general statutes nor the special act contain any specific limitation, in- regard to claims upon railway companies for land damages, it has been held that the general statute of limitation of actions for claims of a similar character will apply, (a) And where the claim was for an injury to an island, caused by the erection of a railway bridge, and to the award of the ^ Faviell v. Eastern Counties Railway Co., 2 Exch. 344. In England it is generally held that an attorney should be appointed under seal to prosecute and defend suits, on the part of corporations. Thames Haven Dock & Rail- way Co. V. Hall, 5 Man. & G. 274; Arnold v. Poole, 4 Man. & G. 860. But where the directors are empowered to appoint and displace any of the officers of the company, the appointment of an attorney, by the company, need not be under seal. See infra, § 141. (a) As to the time within which the (a) Simms v. Memphis, Clarksville, arbitrators must make their award, &c. Railroad Co., 12 Heisk. 621. And under statute 8 Vict. c. 18, see Skerratt statutes of limitation are valid in such V. North Staffordshire Railroad Co., 2 cases. lb. Thus it has been held Phil. 475. As to injunction upon that the right to compensation is proceedings pending the making of barred in twenty years. Ross w. Grand an administration bond pursuant to Trunk Railway Co., 10 Out. Q. B. the same statute, see Poynder v. Great 447. Northern Railroad Co., 2 Phil. 330. [*349] § 85.] STATUTE OF LIMITATIONS. 867 • viewers, and the company j)lcad actio non infra sex annos, the plea was held <^ood.^ 2. And where tlic statute provides, that no process to recover comjKMisatiuu for Lmd or property taken by a railway shall " be sustained unless made within three years from the time of taking the same," a mere liling of an application with the clerk of the county commissioners, without bringing it to the notice of the coniniissioners, or any action of theirs thereon until the three years have elapsed, will not save the bar of the statute.^ (i) The land-owner may also traverse the right of the company to take the land, either originally, for the location and construction of their road, on the ground that it does not come within their line or the line of deviation from the prescribed route, or that they have not taken the proper preliminary steps, or for any other cause ; or, when the coni[)any propose to change their route or to enlarge their accommodation works, on the ground of having made their exclu- sive election in one case, or the want of necessity in the other."* 3. Where the land-owner had allowed the company, ujjon an appraisal in the alternative stating both the value of the land and of the ainiual use, to occupy the same for the purposes of a canal for more than forty years, paying an annual sum about the same which had been awarded, the award being defective in law, in that no person had been made a party to the proceeding who was authorized to represent the land-owner, who was an infant, it was held that this was no ground of presuming a contract on the part of the land-owner to convey the land in fee in consideration of a rent charge.* But it was held that an ejectment on the part of the land-owner, and the erection of a bridge by him, ought to be restrained by injunction, on the ground of acquiescence, the com- pany undertaking to put in force their parliamentary powers, which had not expired, and thus obtain the land. ' Forster v. Cumberland Valley Railroad Co., 23 Peun. St. 371. - Charles River Railroad Co. v. Norfolk County Commissioners, 7 Gray, 389. « South Carolina Railroad Co. v. Blake, 9 Rich. 228; supra, §72; iu/ra, § 105, note 14. * Somerset Canal Co. v. Harcourt, 2 De G. & J. 59G. (/') Nor will proceedings suspended Cheraw & Darlington Railroad Co., without assessment made and with- IG S. C. 41G. As to tiie effect of a out due continuances, the statute saving of the rights of /e/ncs coierf and period having elapsed. Waring t>. infants. lb. [*350] 368 EMINENT DOMAIN. [PART III. 4. But in another case, where the party had, by contract with the original land-owner, used the land of others for more than fifty years, first for a tramway and subsequently for a railway in a * different place across the same land, it was held that the present land-owner was concluded by the agreement, and that the change of one place for another would not defeat the estoppel. All the party can claim is, to have damages under the statute.^ 6 Mold I'. Wheatcroft, 29 Law J. Ch. 11 ; s. c. 27 Beav. 510. [*351J §80.] COMPANY 150UNU TO I'UUCIIA.SK WHOLE OF IIOL'SE. 3G9 ♦CHAPTER XII. REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. SECTION I. Company hound to purchase the ivhole of a House, etc. 1. Company to take tlic accessories with the house. 2. But tlie owner lias an election as to whether company shall take the whole. 3. Company bound to make deposit of the appraised value of all it is bound to take. 4. Company bound to take all of which it takes part, and pay special damage besides. 5. Company having given notice of desire to take part, not bound to take wiiole if it waives its intention. G. Land separated from house by higli- way not part of premises. § 8G. 1. By the English statute^ (r/) railway companies arc bound to purchase the whole of a house and lands adjoining, if required, when they give notice to take part ; and also if the house or the principal portion of it be within fifty feet of the railway, and deteri- orated by it. The act includes house, garden, yard, warehouse, building or manufactory; but it was considered that tliis did not extend to a lumber-yard.^ (?') Under a similar provision, in a 1 Statute 8 & 9 Vict. c. 18, § 92. 2 Stone 1'. Commercial Railway Co., 9 Sim. G21; s. c. 1 Raihv. Cas. 37'); Regina i;. Middlesex, 3 Raihv. Cas. 39G. But it will include an open space in front of a public liouse used by guests for the purpose of access to the house with vehicles, the land liavitij^ passed with the lease of the house for many years. Marsoii v. London, Cliatham, & Dover Railway Co., Law Rep. G Eq. lOL («) This statute is to be construed must take all of the land. Salter i*. strongly against the corporation. ^Metropolitan District Railway Co., Walker v. London & Blackwall Rail- Law Rep. 9 Eq. 432. As to taking way Co., 3 Q. B. 744. part of a block and so impairing means {l>) To take greenhouses situated of access to the rest, .see Ford r. Met- with a dwelling-house in an inclosure ropolifan Railway Co., Law Rep. 17 of about two acres, all used together Q. B. 12. as a nursery garden, the company VOL. I. -24 ^ [♦3o2] 370 REMEDIES BY LAxND-OWNERS UNDER ENGLISH STATUTE. [PAUT TH. special charter, it was held, that the company were not bound to take the entire ])remiscs, wlicre the principal dwelling-house only was within the prescribed liniit.^ 2. It has been considered that this statute gave an option to the land-owner, whether the company should take the whole or part of the house, so situated.* And in this last case it was held, * that a narrow strip of land adjoining an iron and tin-plate fac- tory, wliich had been used as a place of deposit for rubbish, and over which a person had a right of way, was such a part of the manufactory, that the company were bound to take the whole.* (c) 3. And the statute requiring a deposit of the appraised value of the land taken by a railway company, before entering upon the same, imports the value of the whole premises, in all cases where the company give notice of requiring part, and the owner elects, according to the terms of the statute, that they shall take the whole.^ 4. Where three adjoining houses had gardens laid out from the *plat of land upon which they were built for the accommodation of each, and a railway company proposed to take a strip of land from the gardens attached to two of the houses upon the side 8 Regina v. London & Greenwich Railway Co., 3 Railw. Cas. 138. * Sparrow v. Oxford, Worcester, & W'olverliamptoii Railway Co., 2 De G. M. & G. 94; s. c. 13 Eiig. L. & Eq. 33, per Lord Cranwouth and Sir Kxh-ht Bruce, L. J. See also Barker v. North Staffordshire Railway Co., 2 De G. & S. bo\ s. 0. 5 Railw. Cas. 401, 419, where Lord Cottknham, Chancellor, intimates an opinion, that certain parcels of land, with a brine-pit and steam- engine on one of them, adjoining salt-works, are not a part of the manufactory. In Sparrow v. Oxford Railway Co., 2 De G. .Al. & G. 91; s. c. 13 Eng. L. & Ecj. 33, involving the question of the right of a company to tunnel under a manufactory without making compensation, Lord Craxwouth, L. J., made some very significant suggestions in regard to the rights of land-owners in such cases. In Ramsden v. Manchester, South Junction, & Altringham Railway Co., 1 Exch. 723, it was determined that a railway company could not tunnel even a highway, without first making compensation to the owner of the freehold, under the Land Clauses Act. The company is not bound to take property more than fifty feet from the centre line of the road, unless it is incapable of separation. Queen v. London & Greenwich Railway Co., 3 Q. B. 106. ^ Underwood v. Bedford & Cambridge Railway Co., 11 C. B. n. s. 442; s. c. 7 Jur. N. s. 941. So an offer of compensation to the party must be dis- tinct from costs. Balls v. Metropolitan Board, Law Rep. 1 Q. B. 337. (c) So of a row of cottages standing Richards r. Swansea Tramways Co , on premises used as a manufactory. Law Rep. 9 Ch. 425. [*353, *354] § SG.] CUMI'ANY HOUND TO PL'UCIIASK WHOLL OF HOUSE. 371 most rcmoto from the houses, and the owner elected to have the company take the houses, whieh they decHned to do, hut took the laud ; the company were held liahle to purchase the whole of the two houses, the gardens hcing part of the houses to which they were attached, and also to make compensation for any injury sustained in respect of the other house.^ () 6. But it was held, tliat where the Commissioners of Woods and Forests gave notice of taking lands for a public park, as they were acting in a public capacity, the notice given by them did not constitute a quasi contract, enforceable by mandamus.^ SECTION V. Notice may he Waived. 1. Notice must be set forth in proceedings. 2. Agreement to waive operates an es- toppel. 3. Certiorari denied where party has suf- fered no injury. § 90. 1. It is a general rule, in regard to all summary and in- ferior jurisdictions, that the basis of tlieir jurisdiction must appear upon the face of the proceedings.^ Hence in proceedings to take land in invitian, under a notice to treat, the notice being regarded * as essential to the jurisdiction, it has more generally been held indispensable to the jurisdiction that it should be set forth upon the proceedings.^ 2. But where the land-owner enters into negotiation with th.' company, and agrees to waive the notice, he is afterwards estopped from taking the objection, that he never received notice.- (a) And it was held, that the party whose duty it was to give the notice, and who was shown by the returns to have appeared before the jury, cannot object to the inquisition upon the ground that it did not disclose a proper notice to treat.^ ® Sadd V. Maldon, Withan, & Braiiitree Railway Co., 6 Exch. 143; s. c. 2 Eng. L. & Eq. 410. ^ (iueen v. Woods & Forests Commissioners, 15 Q. B. 761. 1 Rex V. Bagshaw, 7 T. R. 363; Rex v. Mayor of Liverpool, 4 Bur. 2211, Rex V. Norwich Roads Trustees, 5 A. & E. 563. 2 Regina v. South Holland Drainage Committee, 8 A. & E. 429. 3 Regina v. Swansea Harbor Trustees, 8 A. & E. 439. (h) This is affirmed in Murphy v. (a) Notice may also be withdrawn. Kingston & Pembroke Railway Co., Grierson r. Cheshire Lines Committee, 11 Out. Ch. 302. Law Rep. 19 Eq. 83. [*361] § 91.] TITLE OF CLAIMANT MUST BK DISTINXTLY STATF:D. 870 3. In another case, where aj)plication was made to the King's Bench to issue a certiorari^ to bring up and quash an inquisition for land damages in a railway case, on the ground of some alleged defect, the court say, the granting the writ is matter of discretion, though there are fatal defects on the face of the proceedings whidi it is sought to bring u]) ; and that it is almost an invariable rule to deny the writ, where it ai)i)cars the i)arty has suffered no injury or has assented to the proceedings below.* SECTION VI. Title of the Claimant must be distinctly stated. 1. Claimant's reply to notice should be dear and accurate. 2. Award had, which does not state claimant's interest. 3. Lands lield by receiver or commission for a lunatic. u. o. Analogous American cases. § 91, 1. In reply to a notice to treat, the claimant may state the particulars of his claim and proceed to treat. In this case the statement should give a clear description of the claimant's inter- est in the land, as a defect here is liable to alTect the validity of the after ])roccedings. 2. In one case where the claimant's answer to the notice to treat stated that, as trustees under a will, they claimed an estate in copyhold, and a certain sum as compensation for their interest in the lands, and appointed an arbitrator, and the other party *api)ointing one, and an umi)ire being agreed upon, he awarded a certain sum as the value to be paid to the ti-ustecs " for the pur- chase of the fee-simple, in possession, free from all incum- brances ; " the company applying to set aside the award, upon the ground that other persons claimed an interest in the lands, the court held tlie award Ijad, for not fnuling the interest of the claimants in the land, or that they had a fee-simple whicli it n|>- praiscd. But the court did not set the award aside, but left the company to dispute it when it should be attempted to be enforced. 1 * Regina v. Manchester & Leeds Railway Co., 8 .V. & E. 413. ^ North Staffordshire Railway Co. v. Landor, 2 Exch. 23.3. [*0G2J 380 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. [PART III. 3. If the lands arc in possession of a receiver, or the committee of a lunatic, a special application should be made to the Court of Chancery .2 The claimant cannot object that the award describes the land as a fee-simple in possession, whereas the land is in pos- session of a tenant. Lord Denman, C. J., in giving judgment, says, " The answer is that such assumption, if really made, is in favor of the claimant, and therefore no matter of complaint for him. But it docs not appear clearly that any such assumption was made. The expression 'fee-simple in possession,' in the claim, is used in contradistinction to fee-simple in reversion or remainder." ^ 2 In re Taylor & York North Midland Railway Co., 1 Hall & T. 432 ; s. c. 6 Raihv. Cas. 741. 3 In re Bradshaw, 12 Q. B. 562. The vendor of land to a railway company does not waive his lien for damages by accepting a certificate of deposit for the purcliase-money, the money not being paid when called for. Minis v. Macon & Western Railroad Co., 3 Kelly, 333. Where a company i-eceived a grant of certain salt mines, subject to a condition which it did not comply with, but re- tained the lands for a different purpose, and afterwards, when the period for performing the condition had exjjired, a general grant of all unoccupied salt lands in the state, necessary to use for constructing a railway', was made to a railway company, which proceeded and occupied, it was held that tbe first grantors had no interest or title enabling them to maintain an action for dam- ages. Parmelee v. Oswego & Syracuse Railroad Co. , 7 Barb. 599. Under the statute of Pennsylvania which gives the right to construct lateral railways over intervening lands, to the owner of lands, mills, quarries, coal, or other mines, lime-kilns, or other real estate, in the vicinity of any railway, canal, or slack-water navigation, it has been held, that one in possession of land, in which there is a coal-mine, who has erected a dwelling-house, is an owner of the mine within the meaning of the act. Shoenberger v. Mulhollau, S Penn. St. 134. It is sufficient in such case that the petition be signed by the lessee and agent of the owner. Harvey v. Lloyd, 3 I'enn. St. 331. It is considered necessary that the mortgagee of land should become a party to the proceedings for condemning or granting land to a railway, in order to give good title to the company. Stewart v. Raymond Railroad Co., 7 Sni. & M. 5G8. Or that he should give his consent, in writing, to the proceeding taken by the mortgagor in the case. Meacham v. Fitchburg Railroad Co., 4 Cu.sh. 291; s. c. 1 Am. Railw. Cas. 584; s. c. 1 Redf. Am. Raihv. Cas. 276. But the mortgagor may recover the full amount of damage, without regard to mortgages. Breed v. Eastern Railroad Co., 5 Gray, 470. AVhere the state held land for a state prison, and granted the charter of a railway, in the usual form, authorizing the company to locate the road, so that it might pass over the land of the state so held, but without any expression in the act of a design to aid the company in its undertaking, it was held the state might recover [*3G2] § 92.] CLAIM OF LAND-OWNER MUST CORRESPOND WITH NOTICE. 381 ♦SECTION YIL Claim of Land-owner must correspond tvith Notice. § 02. In one case the claim of tlie land-owner described more land than the notice to treat, being intersected land, less than one- half acre, which the company are bound to take if so required. But the claim did not properly designate the portion which, it was claimed, the company should take under their notice, and that which they were required to take, as intersected land. The umpire received evidence as to the value of the intersected land, and awarded one entire sum as compensation for the whole. Held that the award was bad, there being no valid submission as to intersected lands. ^ damages for the land taken. The court say they think if the legislature had intended to aid the enterprise by an appropriation of money, land, or other means, the purpose to do so would have been in some way expressed. Com- monwealth V. Boston & Maine Railroad Co., 3 Cush. 25; s. c. 1 Am. Raihv. Cas. 482, 496, 497. 1 North Staffordshire Railway Co. v. Wood, 2 Exch. 244. [*363] 382 ENTRY BEFOKE COMPENSATION IS ASSESSED. [PART III. *CHAPTER XITI. ENTRY ON LANDS BEFORE COMPENSATION IS ASSESSED. SECTION I. Lands taken or Injuriously Affected^ ivithout previous Compensa- tion to Parties. Under English statutes no entry with- out previous compensation, except for preliminary survey. Remedies against company offending. Taking possession under statute, what acts constitute. Company may enter with land-owner's consent after agreement for arbitra- tion. Or on giving a bond conditioned for payment or deposit of value of land. Company restrained from using land until price paid. § 93. 1. The eighty-fourth section of the English statute, The Lands Clauses, ut wlicrc tlic company entered to make preliminary surveys, without giving the requisite notice, the court Iowa, 411; Leber v. ^linneapolis & Northwestern Kailway ("o., 29 Minn. 250; Rusch r. Milwaukee, Lake Shore, & Western Railway Co., 54 Wis. 136. And mere delay in proceeding without knowletlge of or acquiescence in the acts of tlie company will not estop the owner. Bothe v. Dayton & Michigan Railroad Co., 37 Ohio St. 147. Xor will mere permission to enter and con- struct the road. Conger i'. Burlington & Southwestern Railway Co., 41 Iowa, 419. Nor will mere silence and inac- tion with knowledge that the company is proceeding to construct its road. Walker v. Chicago, Rock Island, & Pacific Railroad Co., 57 ^lo. 275. But where the company expends money, &c., it will be otherwise. The owner may not then have an eject- ment. New Orleans & Selma Rail- road Co. IV Jones, 68 Ala. 48; Pryz- bylowicz r. Missouri River Railroad Co., 17 Fed. Rep. 492. But he may still have his action for damages. Ring V. Mississippi River Bridge Co., 57 Mo. 490. And if one of two ten- ants in common convey a right of way on conditions which tlie company does not perform, the grantor may have an action for damages for breach of con- tract, and his cotenant an action for trespa.ss. Rush v. Burlington, Cedar Rapids. & Northern Railway Co., 57 Iowa, 201. An abutting owner may have ejectment where the company lays its track in tlie street, if he own the fee. Terre Haute & Southeastern Railroad Co. v. Rodel, S9 Ind. 128. Tlie owner cannot recover damages for the taking where he can recover the land itself. Atlantic & Great Western Railway Co. v. Robbins, 35 Ohio St. 531. As to what may be recovered as damages, see Morin i\ St. Paul, Minneapolis, & Manitoba Railway Co., 30 Miim. 100; Leber V. Minneapolis & Northwestern Rail- way Co., 29 Minn. 256; Chicago & Iowa Railroad Co. v. Davis, 80 111. 20; Ilartz V. St. Paul & Sioux City Rail- road Co., 21 Minn. 358. As to fixtures put upon the land by the trespassing company, see California Pacific Rail- road Co. V. Armstrong, 46 Cal. 85; Justice V. Nesquehoning Valley Rail- road Co., 87 Penn. St. 28; ^lorgan i'. Chicago & Northeastern Railroad Co., 39 Mich. 675; Toledo, Ann Arbor, & Grand Trunk Railway Co. r. Dunlap, 47 Mich. 450 ; Van Size r. Long Island Railroad Co., 3 Ilun, 013; Blue Earth County V. St. Paul & Sioux City Rail- road Co., 28 Minn. 503; Greve v. St. Paul & Pacific Railroad Co., 26 Miim. 66; Jones i'. New Orleans & Selma Railroad Co., 70 Ala. 227. As to punitive damages, see Anderson Rail- road Co. I'. Kernodle, 54 Ind. 314. For a second intrusion tlie owner may maintain a second action. Illinois & St. Louis Railroad & Coal Co. i;. Cobb, 82 111. 183. (Ii) An attempt to take land with- out valid proceedings for its condemna- tion, may be restrained by injunction. Bohlman v. Green Bay & Minnesota Railway Co., 40 Wis. 157. So of an attempt to take possession without assent and j^ayment or tender of pay- ment. Northern Pacific Railroad Co. V. Barnesville & Mo«irhead Railroad Co., 4 Fed. Rep. 298; Diedrichs r. Northwestern Union Railway Co., 33 Wis. 219; White i'. Nashville & North- western Railroad Co., 7 Ileisk. 518; Provolt I". Chicago, Rock Island. & Pacific Railroad Co., 69 Mo. 633; [•364] 384 ENTRY BEFORE COMPENSATION IS ASSESSED. [PART III. refused to order the injunction, but reserved the question of costs.^ * 3. And where the entry was regularly made upon the land, for preliminary surveys, and afterwards the contractors, without the knowledge of the corporation, but with the consent of the occupy- ing tenants, brought some of their wagons and rails and other implements upon the land, but did not commence the works or do any damage, and this was without the assent of the owner, and his agent thereupon filed a bill to obtain an injunction against taking possession of the lands until they had complied with the statute, tlie Vice-Chancellor said, that although the company were bound by the acts of their contractors, the acts done were not a taking possession within the meaning of the statute, and that the bill was improperly filed. ^ 4. But where the company agreed with the land-owner that the question of compensation should be settled by arbitration, and thereupon entered upon the land, by consent of the owner, and the arbitrator made an award, which became the subject of dispute, and the owner thereupon gave the company notice to quit, and brought ejectment, it was held he could not recover, although the company had not tendered the money awarded, or a conveyance, but that the owner's remedy was to proceed upon the award.* 2 Fooks V. Wilts, Somerset, & Weymouth Railway Co., 5 Hare, 199; 8. c 4 Railw. Cas. 210. In this case the injunction was denied, chiefly on the gi'ound that the alleged trespass was complete before the application. The court intimate that if the company vshould attempt to proceed further it might be proper to restrain it by injunction. The point that the company was in the wrong, is distinctly recognized. 8 Standish v. Liverpool, 1 Drewry, 1; s. c. 15 Eng. L. & Eq. 255. * Hudson V. Leeds & Bradford Railway Co., 16 Q. B. 796; s. c. 6 Eng. L. & Eq. 283. The decision here goes chiefly on the ground of the consent of Freshwater v. Pittsburg, Wheeling, & Ga. 614, where equity interposed in Kentucky Railroad Co., 6 W. Va. 503; peculiar circumstances. But see Reras- Omaha & Northwestern Railroad Co. hart v. Savannah & Charleston Rail- V. Menk, 4 Neb. 21; Ray v. Atchison road Co., 54 Ga. 579, where the court & Nebraska Railroad Co., 4 Neb. 439. said there was a remedy at law, and And see Irish v. Burlington & South- Watson r. New York, West Shore, & western Railroad Co., 44 Iowa, 380; Buffalo Railroad Co., 64 How. Pr. Evans V. Missouri, Iowa, & Nebraska 220, in which the court refused an Railway Co., 64 Mo. 453; Gammage injunction. I". Georgia Southern Railroad Co., 65 [*865] § I);].] LANDS TAKEN OR INJURIOUSLY AFFECTKD. 385 The notice to quit under the ciicumstanccs did not make the comjKiny trcspas.scrs. 5. By the ciglity-fifth section, if the company find it necessary to enter upon land, for the purjiosc of carrying forward their works, before tlie amount of compensation can be settled, they may deposit in the bank the amount claimed, or in other cases the appraisal, and also give the party a bond with surety, to be ap- proved by two justices, in a penal sum equal to the amount so deposited, conditioned for the payment or deposit of the amount finally fixed as the ultimate value and interest thereon, and then take possession of the laud and proceed with their works. The company can obtain their money so soon as the condition of the bond lias been complied with. But the vendor must join in the petition for the money to be paid the company, or else it must * be shown that he has been served with a copy of the petition.^ the land-owner to the entry of the company, and to a reference of the question of compensation to an arbitrator. 6 Ex parte South Wales Railway Co., 6 Railw. Cas. 151. But in Ex parte Eastern Counties Railway Co., 5 Railw. Cas. 210, the money was ordered to be paid to the company on affidavits showing the claim settled. The land- owner has no lien on the money deposited for costs, but the company is en- titled to the money on payment of the sura finally settled for the value of the land. Ex parte Great Northern Railway Co., 5 Railw. Cas. 269; London & South Wales Railway Co., 5 Railw. Cas. 437. The bond must be given in the veiy terms of the statute. Hosking v. Phillips, 3 Exch. 1G8, opinion of Pai{KE, li. And it will make no difference that the obligee is a gainer by the deviation from the statute. Poynder v. Great Northern Railway Co., IG Sim. 3; s. c. .5 Railw. Cas. 19G. But where the company chooses to treat for the claimant's title only, it is sufficient if the bond follow the statute, so far as it applies to that particular case. Willey v. Southeastern Railway Co., 1 Hall & T. 56; .s. c. Kailw Cas. 100. If the company enters by consent of the tenant, and does per- manent damage to the land, the owner may nevertheless obtain an injunction and compel a deposit and the giving of a bond as required by the statute. .\rrastrong v. Waterford & Limerick Railway Co., 10 Irish Eq. 60. If there be a mortgage on land, the company must treat with the mortgagee, or pro- vide for tlie expen.se of reinvestment for his benefit, or the entry will be re- garded as unlawful. Ranken v. East & West Ir.dia Docks & Birmingham Junction Railway Co., 12 Beav. 298; 19 Law J. Ch. iri3. Under the general statutes, in many of the American states, where there are conflicting claims to the land required by a railway company, the company is required to make application to the Court of Chancery, and dei^sit the uioney in bank, subject to the final order of that court. In such case it has been considered that the company has no interest in the controversy, after dejxjsiting the money for the price of the land. Haswell v. Vermont Central Railroad Co., 23 Vt. 228. VOL. I. -25 [*3GG] 386 ENTRY BEFORE COMPENSATION IS ASSESSED. [PART III. It does not invalidate the bond, if it bear date before the date of the vakiation.^ 6. "Wlicrc a railway company took land for the construction of their road, without paying the price, and after completing their works leased the line to another company, it was held, upon a bill against both companies, to compel the payment of the land dam- ages, that a decree must pass for the plaintiff for payment by the first company, and in default that both companies be restrained from using the land.^ But where the price of lands so taken had been secured by bond, which had not been paid, it was held the company, after having constructed their road, could not be re- strained * by injunction from continuing to occupy the land until they paid the purchase-money.^ And this, it seems tO us, is the correct view of the matter, that the land-owner, by accepting secu- rity, or even the promise of the company, for land damages, and allowing them to apply the laud to the purposes of constructing their works, so essentially converted its nature as to lose all lien upon it for the price.^ SECTION II. Proceedings requisite to enable Company to enter. 1. Provisional valuation under English statutes. 2. Irregularities in proceedings. 3. Penalty for irregular entry upon lands. 4. Entry after verdict estimating dam- ages, but before judgment. 5. Charter mode of assessing damages not superseded by subsequent general act. § 94. 1. In some cases specified in tlic English statute, it is necessary to have a provisional valuation of land, by a surveyor appointed by two justices, to determine the amount of the security ^ Stamps r. Birmingham, Wolverhampton, & Stour Valley Railway Co , Railw. Cas. 123. ■' Cozens v. Bognor Railway Co., Law Rep., 1 Ch. Ap. 594, Turner, L. J., dissenting. But see supra, § 73, note 7. 8 Pell V. Northampton & Banbury Railway Co., Law Rep. 2 Ch. Ap. 100; s. c. 12 Jur. N. 8. 897. The lessee is a proper party in such case. Winchester V. MiJ-hants Railway Co., Law Rep. 5 Eq. 17. ^ Supra, § 73, and notes; § 65, pi. 6, and cases cited. [*367] § 'J4.] PROCEEDINGS REQUISITE. 887 to be frivcn before the entry of the company upon the land. Wlicre in such cases the justices appointed a surveyor, who had all along acted for the company, to appraise the value, it was held no sulhcient reason to interfere, by injunction, but the court reprobated such a practice. The court also declined to interfere, by injunction, on the ground that the sureties on the bond were the company's solicitors, and were upon similar bonds to a large amount.^ 2. In the same case it was considered that depositing money and executing a bond to tenants in common, in their joint names, was irregular.^ It was held that the proceedings under the S.lth section of the English act, to obtain possession of the land before the * amount of compensation is settled, may be ex parte, and al- together without notice.^ 3. The English statute subjects the company to a penalty for entering upon lands before taking the steps required by the statute, but provides, that the penalty shall not attach to any com- pany who have bona fide done what they deemed to be a com- pliance with the statute.^ 4. If one enter upon lands after verdict estimating damages, but before judgment on the verdict, he is liable in trespass, but only for the actual injury, and not for vindictive or exemplary damages.* («) 1 Langliam v. Great Northern Railway Co., 1 De G. & S. 48G; s. c. 5 Railw. Cas. 2G5, 2GG. This case was in favor of five phiintiffs, three tenants in common, and two devisees in trust for the sale of the lands, and it was queried, whether there was not a misjoinder. 2 Bridges v. Wilts, Somerset, & Weymouth Railway Co., 4 Railw. Cas. GJ2. Thi.s is a decision of the Lord Chancellor affirming that of the Vice-Chan- cellor of England. Poynder r. Great Northern Railway Co., IG Sim. 3; s. c. 5 Railw. Cas. 19G. In this case the bond was held to be informal, for being made to be performed " on demand; " and the Lord Chancellor refused a per- petual injunction, but allowed it till the bond was corrected. ^ ' Hutchinson v. Manchester, Bury, & Rosendale Railway Co., 15 M- & W. 314. PoLLOCic, C. B., thus lays down the rule of construction of this statute: " A penal enactment ought to be .strictly con.strued, but a proviso, which has the effect of saving parties from the consequences of a penal enactment, should bo liberally construed. * Harvey v. Thomas, 10 Watts, 63. (a) As to trespass as a remedy for the land-owner generally, see supra, §03. [*368] 388 ' ENTRY BEFORE COMPENSATION IS ASSESSED. [PART III. 5. It has often been made a question in this country, where the charter of a railway provides one mode of assessing land damages, and a subsequent general railway act provides a dif- ferent mode, which the company are bound to pursue. It has been held the company might still pursue the course pointed out in their charter.^ SECTION III. 3Iode of obtaining Compensation where no Compensation is offered. 1. Claimant may have an assessment by i 2. Method of procedure in either case, arbitrators or by jury. | § 95. 1. Where land is taken by the company, or injuriously affected by their works, and no compensation has been offered by the company, the claimant may, where the amount exceeds * X50, have the same assessed, either by arbitrators or a jury, at his election. 2. If he desire to have the same settled by arbitration, he shall give notice to the company of his claim, stating his interest in the land and the amount he demands, and unless the com- pany within twenty-one days enter into a written agreement tc pay the amount claimed, the same shall be settled by arbitration, in the manner pointed out in the statute ; or, if the party desire to have the same settled by a jury, he shall so state in his notice of claim, and unless the company agree to pay the sum claimed, in the manner stated above, they shall within twenty-one days issue their warrant to the sheriff to summon a jury to settle the same, in the manner pointed out in the act, and in default thereof they shall be liable to pay the amount claimed, to be recovered in the superior courts.^ * Visscher v. Hudson River Railroad Co., 15 Barb. 37; Hudson River Rail- road Co. V. Outwater, 3 Sandf. 689; supra, § 72, note at the end. 1 Statute 8 & 9 Vict. c. 18, § 08. [*369] § 9G.] ONUS OF CARRYING FORWARD PROCEEDINGS. * 389 SECTION IV. Onus of carrying forward Proceedings. 1. Onus rests on claimant after company has taken possession. 42. Pending questions in equity first dis- posed of. Notice of warrant for j ury . 3. Proceedings cannot be had unless ac- tual possession is taken or injury done. § 9G. 1. It has been held, under the English statutes, that after the company have taken possession of land, either by right or by wrong, the onus of taking the initiative stejjs to have the purchase-money or compensation assessed, lies upon the claim- ant.^ («) It was considered in this case, that the remedy under the sixty-eighth section ^ applied to all cases where the company took possession of the land under the eighty-fifth section .^ 2. But if questions in equity are pending, they must be dis- posed * of before the common-law remedy can be pursued.^ This was a case where the determination of the matters pending in equity was necessary to enable the parties to know what was to be submitted to the assessors.* In proceedings under the sixty- eiglith section, it is not necessary for the company to give the claimant notice of their issuing a warrant to the sheriff to sum- mon a jury, ten days before they issue it, as is required in ])ro- cccdings under the other sections.^ It was held, that if the > Adams v. London & Blackwall Railway Co., 2 Hall & T. 285 ; s. c. 6 Railw. Cas. 271, 282. It was also considered, in this case, that if the company failed to ])erform its duties in the proceedings, the more appropriate remedy waa mandamus, and not specific performance. - See supra, § !)5. « See supra, §§ 93, 94; Armistead v. North Staffordshire Railway Co., 10 Q. B. 526; s. c. 4 Eng. L. & Eq. 216. * Southwestern Railway Co. v. Coward, 5 Railw. Cas. 703; s. c. 1 Hall & T. 377, note. « Railstone v. York, Newcastle, & Berwick Railway Co., 15 Q. B. lol. Tliis case is questioned in Richardson v. Southeastern Railway Co., 11 C. B. 154; («) In this country variously regu- 17S. Sherman v. Milwaukee, Lake lated by statute. In Wisconsin, the Shore, & Western Railroad Co , 40 Wis. corporation must take the initiative. 645. In Arkansas, either party may afv So in Indiana. Cox v. Louisville, New ply for an assessment. Cairo & Fulton Albany & Chicago Railroad Co, 48 lud. lUilroad Co. f. Trout, :32 Ark. 17. [•370] 390 ENTRY BEFORE COMPENSATION IS ASSESSED. [PART III. claimant recover a larger sum than was offered by the company, he is entitled to recover costs under section sixty-eight, as well as under other sections.^ 3. It is considered that the land must be actually taken, or actually injuriously affected by the company, before the claimant can take proceedings under section sixty-eight. Hence if the company give notice of their intention to take lands, but do not afterwards actually take possession or injuriously affect them, the claimant can only proceed by mandamus. It has been decided that the claimant in such case cannot make a demand of a cer- tain sum, and then recover it if the company do not issue their warrant to the sheriff.^ SECTION V. Injunction will not issue because Lands are being injuriously affected, without Notice to Treat or previous Compensation. 1. Company proceeding under its powers, claimant must wait until works are completed. 2. Even if appearance of land will be greatly altered. 3. How far equity interferes where le- gal claim of party is denied. 4. Where a special mode of compensation has been agreed on. § 97. 1. It is said courts of equity will not interfere by in- junction, because lands are being injuriously affected by the * company's works, and no notice to treat or previous compensa- tion has been made, if it appears the company are only exercis- ing their statutory powers. The claimant should allow the works to be completed, and then take his remedy under the statute.^ 2. It was objected, in one case, that the company would be likely to greatly alter the appearance of the land which they had entered upon, and that a jury could not understandingly assess s. c. 6 Eng. L. & Eq. 426. But on error, in the Exchequer Chamber, 9 Eng. L. & Eq. 464, the question as to costs was affirmed, and the court said, it was not necessary to say whether the case of Railstone v. York, Xewcastle, & Ber- wick Railway Co. , was to be considered sound or not, as it did not necessarily affect the question before the court. ^ Burkinshaw v. Birmingham & Oxford Junction Railway Co., 5 Exch. 475. 1 Statute 8 & 9 Vict, c 18, § 68. [*371] § 98.] ARBITRATORS, ETC., CANNOT DETERMINE TITLE. 391 the value after the damages were sustained, but the court said it was no ground for the interference of a court of equity .2 3. The courts in England hold, that in this class of claims it is projjcr to wait till the full extent of the injury is known.^ And equity will not enjoin the party from proceeding under the statute, in a case where it is alleged that lie lias no legal claim under the statute,^ as in such case the company may defend against the award, and this seems to be the course finally deter- mined upon. But some actions at law have been brought and sustained to try the right, by order of the courts of equity .° 4. So, too, where the bill alleges that the ])arty has upon consideration agreed to receive compensation in a ] (articular mode, equity will enjoin him from taking proceedings under the statute.^ ♦SECTION VI. Right in the Claimant not determined hy Jury or Arbitrator. 1-3. Arbitrators and sheriff's jury de- termine only the amount of dam- ages. 4. In most American states assessment is final. 5. Plaintiff will recover damages assessed if he suffered any legal injury. § 98. 1. There has been some contrariety of opinion among the English judges in regard to the right of the company, before " Langham v. Great Northern Railway, 1 De G. & S. 486; s. c. 5 Railw. Cas. 20i}. The counsel for defendant was not called to answer this portion of plaintiff '.s argument. 8 Ilutton V. London & Soutliwestern Railwaj' Co., 7 Hare, 'J.')!) * East & West India Docks & Rirniingliain JunctiDii liailway Co. r. Gattke, 3 Macn. & G. 15.5; s. c. 3 Eng. L. & Eq. 59; South StafTordsliire Railway Co. v. Hall, 1 Sim. n. s. 373; s. c. id. 105. In this last case, the opinion of Lord.CRANWOUTii seems to overrule that of Lord Cottkx'iam in London & Northwestern Railway Co. v. Smith, 1 Ilall & T. 3(31; s. c. 5 Railw. Cas. 716. Sutton Harbor Improvement Co. v. Ilitchins, 15 Heav. 1(J1; 8. c. Eng. L. & Eq. 41; London & Northwestern Railway Co. r. Ikadley, 3 Macn. & G. 3G6; s. c. G Railw. Cas. 551. See also Monciiot r. Great West- ern Railway Co., 1 Railw. Cas. 567. But see the ca.se of Lancashire & York- shire Railway Co. c. Evans, 14 Beav. 5-29; s. c. 19 Eng. L. & Eq. 'J95, where the case of London & Northwestern Railway Co. v. Smith is still further questioned. ^ Glover V. North Staffordshire Railway Co., IG Q. B. OIl'; s. c 5 Eng. L. & Eq. 335. 8 Norfolk V. Tennaut, 9 Ilaro, 745 ; s. c. 10 Eng. L. & Eq. 237. [*3T2] 392 ENTRY CEI-^ORE COMPENSATION IS ASSESSED. [PART III. the sheriff's jury, to raise the question of the claimant's right to recover any compensation, under the sixty-eighth section, where lands are taken or alleged to be injuriously affected by the works of the company, and whether the jury can go into any inquiry beyond that of the value of the claimant's interest in the land. The latest decisions upon this point hold, that the jury is confined to the question of the amount of compensation.^ 2. In the very latest English case (1857) , upon this sub- jcct,2 (a) the judges of the Court of Queen's Bench differed in opinion, and delivered opinions seriatim. Coleridge, J., and Lord Campbell, C. J., and Wightman, J., holding that the jury had nothing before them but the quantum of damages, and that whether the company declined to issue their warrant to the sheriff, or did issue it, in both cases, the right to recover any damage on account of a claim for the injurious affecting of land was to be tried upon the action, to recover the amount assessed, in the courts. The proceedings under the statute were held, by the majority of the court, to be merely for the purpose of fixing the amount of the claim. If, indeed, the company stood still upon the question of right, they were liable, in the event of the claimant's recovery, for the full amount of the claim made ; but if they proceeded to a hearing before the arbitrator or a jury, * whichever course the claimant should elect, they might not only contest the amount there, but the right of any recovery in the action which the claimant was compelled to bring to obtain execution against the company, but that it was improper to go into any inquiry before the arbitrator or the jury, in regard to the right to recover anything, inasmuch as this tended improperly to embarrass the mind of the triers in regard to the damages. And in this case, where the jury went into the question of right, and determined the claimant had no right, but added, if he had such 1 Regina v. Metropolitan Sewers Commissioners, 1 Ellis & B. 694; s. c. 18 Eng. L. & Eq. 213. 2 Regina v. London & Northwestern Railway Co., 3 Ellis & B. 443; 8. c 25 Eng. L. & Eq. 37. And the same rule is extended to the finding of arbitrators that premises were injuriously affected by the narrowing of a way of approach, by means of the company's embankment; the award is not con- clusive on the point of the injurious effect. Beckett v. Midland Railway Co., Law Rep. 1 C. P. 241. (a) And see Chapman v. Monmouthshire Railway Co., 2 H. & N. 267. [*373] § 99.] EXTENT OP COMPENSATION TO LAND-OWNERS. 393 right his claim should bo valued at <£150, the uiajurity oi the court determined that the former part of the verdict could not be rejected, and let the verdict stand as a good finding of the sum named ; which last point seems rather too refined for ccjinmun apprehension, even after reading attentively the elaborate ojiinion of the majority of the court by Coleridge, J. 3. Mr. Justice Erle dissented from the principal decision of the court, and held the verdict good in all respects. But this case must be regarded as settling the question of the right of the jury to pass upon the claim beyond its mere amount, at least under the English statutes. 4. In most of the American states the assessment of land dam- ages, by whatever tribunal, becomes final, unless appealed from, and execution issues without resort to a future action ; or, if an action is necessary upon awards of arbitrators, this will not justify a re-examination of the case, either upon the question of title or amount of damages. But in some of the states, tiie pro- ceedings are similar to those above-named in the English courts.^ 5. And under the English statutes, where the claim is for in- juriously affecting land, the plaintiff must recover the entire amount of damages assessed to him for land taken by a railway, unless the defendant's pleas show that he had no right to recover to any extent.* ♦SECTION VII. Extent of Compensation to Land-owners^ and other Incidents by the English Statutes. 1. Liberal compensation allowed. 2. Decisions under English statutes. 3. Limit of period for estimating dam- ages. 4. Whether claim for damages passes to the devisee or executor. 5. Vendor generally entitled to damages accruing during his time. § 99. 1. In one of the early cases ^ upon this subject, Lord Denman, C. J., said, we think it not unfit to premise, '* that where 8 Supra, § 72. * Mortimer v. South Wales Railway Co., 5 Jur. n. s. 784; s. c. 1 Ellis & E. 375. ^ Regina v. Eastern Counties Railway Co., 2 Q. B. U17. [•374] 394 ENTRY BEFORE COMPENSATION IS ASSESSED. [PART III. such large powers are intrusted to a company to carry their works through so great an extent of country, without the consent of the owners and occupiers of land through which they are to pass, it is reasonable and just that any injury to property, Avhich can be shown to arise from the prosecution of those works, should be fairly compensated to the party sustaining it." But this must be received under some limitations. For it is supposable, that pos- sible remote injuries may accrue to property, of a general and public character, which it was never intended to compensate, (a) 2. Some points arising under the English statute may be here referred to. It was held that where the powers conferred upon a canal company were unlimited as to time, no limitation as to their exercise could be assigned, so as to require their exercise within a reasonable time, and consequently that the works might be re- sumed at any period.^ Future damages to accrue to land-owners cannot be estimated properly until after the completion of the works.3 The compensation, when given, fixes the rights of the parties upon the basis of its estimation, as, if the estimation is had upon the footing of an entire severance of the land, the land- owner has no right to cross the track.* And where this did not * sufficiently appear by the record of the verdict, that not having been made, held that parol evidence might be given of the find- ing, and of the grounds upon which it proceeded.* 3. Where consequential damages to existing works by the erection of new ones are required to be compensated, the period for estimation is limited to the yearly value of the works, antece- dent to the passing of the act.^ 2 Thicknesse v. Lancaster Canal Co., 4 M. & W. 472. Lord Abinger, C. B., intimates an opinion here, that possibly, after a long delay of the com- pany to proceed with its works, and the erection of fences and buildings by the land-owners in faith of the abandonment of the works by the company, a court of equity might restrain the company from completing the enterprise, notwithstanding the grant of power by parliament; but that a court of law could do no such thing. 8 Lee V. Milner, 2 j\L & W. 824. * Manning v. Eastern Counties Railway Co., 12 M. & W. 237. But unless it appeared by the record on what basis the assessment was made, it seems questionable, whether, on general principles, oral evidence is admissible to show that basis. Supra, § 74, note 6. 6 Manning i'. Commissioner, 9 East, 165. (n) As to damages in general, see supra, § 71. [*375] S 100.] RIGHT TO TEMPORARY USE OF LAND. 395 4. The devisee is entitled to elaiiu consciiuential damaf^es, and not the executor.^ liut wheic one contracted to sell freeliy the English statute, railways are required, where they have acquired more lands under their powers than are required for their purposes, to sell the same within ten years from the passing of the act, and that superlluous lands, then re- maining unsold, should vest in the owners of adjoining lands, in proportion to the amount of their lands respectively adjoining the same. That time was by a subsequent act extended five years more. It has been held that the act embraced lands the rever- sion of which had been bought by the company ; and also that the superfluous land was to be divided among the owners of the adjoining property, * in pro|)ortion to the frontage of each; meaning by that the length of the line of contact, without refer- ence to the extent of the land in other directions, and that the later act did not defeat titles already vested under the former act.i 2. It has also been held that the former owner of the lands from which they were severed, is entitled to share in the same un- der the statute, and that the fact that a cottage stands in the field, part of such superfluous lands, will not bring them within the ex- ception of lands built on or used for building purposes.- 1 ]Sronkland Railway Co. v. Dixon, 1 Bell Ap. Cas. 347: s. c. 3 Raihv. Cas. 273. The court here denied an interdict against such owner or occu- pier prolonging his railway for the benefit of any persons with whom he might make an agreement for that purpose. 1 Moody V. Corbett, Law Rep. 1 Q. B. 510. * Cai-ingtoii v. Wycombe Railway Co., Law Rep. 2 Eq. 825. [•378] 898 MODE OP ASSESSING COMPENSATION. [PART III. *CHAPTER XIV. MODE OF ASSESSING COMPENSATION UNDER THE ENGLISH STATUTES. SECTION I. Assessment by Justices of the Peace. 1. Assessment where the compensation claimed does not exceed .£50. 2. Procedure in enforcement of award. 3. Value of land and injury accruing from severance to be considered. § 102. 1. By the English statute, where the compensation claimed shall not exceed X50, the same is to be settled by two justices. So, also, as to damages claimed for lands injuriously affected. So, too, if the company enter upon any private road or ■way. And justices may fix the compensation, in certain cases, for the temporary use of land ; and the compensation to tenants for a year, or from year to year. They may apportion the rent, too, where the whole land is not taken. In some of these cases their jurisdiction extends beyond X50, 2. The mode of enforcing payment of money awarded by such justices, is to obtain an order, which may be enforced by distress, upon the goods and chattels of the party liable. The certiorari is taken away in such cases, but an order of such justices may still be brought up, to be quashed, for want of jurisdiction.^ 3. The justices are to take into consideration the value of the land, and any injury which may accrue from severance. SECTION II. Assessment hy Surveyors. § 103. The assessment of compensation by surveyors, under the English statutes, is merely provisional in most cases, as where the party is out of the kingdom, or cannot be found, two justices [*379] ^ See the subject discussed infra, §§ 163-16.5. § 104.] ASSESSMENT BY ARBITRATORS. 399 •are required to nominate an able practical surveyor, who i.s, under certain solemnities, required to make a valuation of the land taken or injuriously ariectcd, the amount of which the com- pany arc required to deposit in the bank, before proceeding with the works. And if such party be dissatisfied with the sum thus deposited, he may, before applying to Chancery for the money, require the question to be submitted to arbitration, as in other cases of disputed compensation. Surveyors are required to as- sess damages for severance of land, the same as justices of the peace.^ (a) SECTION III. Assessment hy Arbitrators. 1. Assessment by arbitrators in cases ex- ceeding jurisdiction of justices of the peace. 2. Proceedings in selection of arbitrators. 3. Notice of appointment. What suffi- cient. 4. Arbitrator's power limited to award of pecuniary compensation. 5. Where land-owner gives no notice of claim, comj)any maj' treat it as case of disputed compensation. 6. Similar rule under Massachusetts stat- ute regarding alteration of high- ways. 7. Under that statute land-owners may recover without waiting for select- men to act. 8. Company estopped in such case from denying that road was constructed by its servants. 9. Finality of award silent as to sever- ance damages. 10. Submission not revoked by death of land-owner. Damages embraced. 11. Construction of general award. § 104. 1. By the English statutes, if the amount of compensa- tion claimed exceed the jurisdiction of two justices, any party claiming compensation may compel an arbitration, by taking the requisite steps in due time. Unless both parties concur in the same arbitrator, each party, upon the request of the other, is re- quired to name one. The appointment of tlie arbitrator is to be under the hand of the party, and delivered to the arbitrator, and is to be deemed a submission by such party. Such submission is irrevocable, even by the death of the party. I Hodges Railw. 250, 251, 252. (a) Notice of intention to apply for property. Grierson v. Chosliirc Lines the appointment of a surveyor does Committee, Law Rep. 19 Eq. 83. not amount to a contract to take the [•360] 400 MODE OF ASSESSING COMPENSATION. [PART III. 2. If either party neglect, for fourteen days after request by the otlicr party, to name an arbitrator, one may be named by the other party, who sliall decide tlie controversy. If either party name an arbitrator who is incompetent, the other party must retire from the arbitration, or he will be bound by his acquiescence.^ * The secretary of a railway company, by the English statutes, would seem to have power to bind the company, by signing the submission, whether the arbitration is compulsory or not.^ 3. It was held that the appointment of an arbitrator or referee implied the notification of such appointment to the other party within the time limited in the submission, or the doings of such referee were void.^ And not only so, but the notice must be ex- j)licit. It is not sufficient to say, " Take notice, that it is my in- tention to nominate S. M.," notwithstanding it was added, " if the company fail to appoint, I, the said T. B., will appoint S. M. to act on behalf of both parties." * And in this case it is said, it would seem that the appointment by the claimant of an arbitrator to act for both parties is not valid, unless he has previously appointed an arbitrator, on his part, and notified such appointment to the company. There should be two separate appointments, although it may be of the same person, it is here suggested.'^ 4. The arbitrator has no power beyond the awarding of a pecuniary compensation for the land taken by the company, and cannot direct what right of way shall remain in the tenant to the portion of land not taken. Nor can he apportion the rent to the tenant.^ 1 In re Eliott, 2 De G. & S. 17. 2 Collins V. South Staffordshire Railway Co., 7 Exch. 5; s. c. 21 Law J. Ex. 247; s. c. 12 Eng. L. & Eq. 565. 8 Tew V. Harris, 11 Q. B. 7. * Bradley i-. London & Xorthwestern Railway Co., 5 Exch. 769. ^ But where both parties petition for a jury to revise the damages, one ■warrant is sufficient. David.son ;;. Boston & ]\Iaine Railroad Co., 3 Cush. 91. And if two warrants are issued, the sheriff should execute, and return them as one. lb. And where there are several applications, which by statute are to be determined by one jm-y, the proper mode is to issue but one warrant to the sheriff; but if several warrants issue irregularly^, and the officer summon but a single jury, who hear and determine each case, their verdicts will not be set aside for such irregularity. Wyman v. Lexington & West Cambridge Railroad Co., 13 Met. 316. « Ware v. Regent's Canal Co., 9 Exch. 395; 8. c. 25 Eng. L. & Eq. 444. Xor can the tenant recover damages for the depreciation of the use of premises [*381J § 104.] ASSESSMENT BY ARniTRATORS. 401 5. If the land-owner gives no notice of claim, in reply to the notice to treat, the company may treat it as a case of disputed compensation." If the compensation claimed be less than .£50, it may be settled by two justices. But if more than X50 be claimed, or oil'cred, and the claimant desire to have it settled by aibitra- tion, * it is at his option, and he must give notice of such desire before the company issue their warrant to tlie sherifT to summon a jury to assess tlic compensation, which they may do in ten days after giving the claimant notice that they shall do so, unless in the mean time he elect to have the matter settled by arbiti-ation.^ 6. And under the Massachusetts statute giving railways the right to alter highways, upon giving notice to the selectmen of the towns where such highways are situated, and conforming to their requirements or the decision of the county commissioners, in re- gard to the alteration of the highway, it was held, that if the selectmen give no notice to the company, as to what alterations they require, the presumption is that they require none, but leave the whole matter to the company. 7. And to entitle adjoining land-owners to recover damages of the railway under the statute of Massachusetts, it is not necessary that the selectmen should have acted in the premises. The rem- edy in such case is not by an action against the town, but by pro- ceedings under the statute against the company.^ 8. In such case the company arc estoj)pcd to deny, that the construction of their road, as in fact made, was done by their ser- vants in compliance with the requirement of the charter.® And embankments made by them for the purpose of carrying a highway over the railway, arc to be regarded as a part of the railway.^ 9. By a submission to arbitration it was provided that the arbi- trator should determine what sum should be paid for the purchase of land, and what " other, if any, sum for severance damage, ami the arbitrator after reciting " the submission, and that he liad considered the matters so referred to him, awarded a certain sum used for a public house, during the pendency of the proceedings after notice. Queen v. Vaughan & Metropolitan District Railway Co., Law Rep. 4 Q. R. 190. 7 Statute 8 & 9 Vict. c. 18, §§ 21, 22, 2-3, 38. ^ Parker v. Boston & Maine Railroad Co., 3 Cu.sh. 107. 8 In re Swansea Harbor Trustees, 6 Jur. n. s. 979; s. c mm. Beaufort i-. Swansea Harbor Trustees, 8 C. B. n. s. 146. VOL. I. -26 [*382] 402 MODE OP ASSESSING COMPENSATION. [PART III. to be paid for the purchase of the land, without saying anything; about severance damage ; it was held that the award was final and good, — that the arbitrator by his silence negatived any right to compensation on account of severance damage. 10. A submission to arbitration under the English statute for assessing land damages is not revoked by the death of the land- owner.^^ It was here considered that the award was valid, although * not made within the statute period of three months ; that the arbitrator may employ an expert and consult men of science, if necessary ; that the right to compensation extends to any land injured by the severance of that which was taken, or by the works which the company is authorized to construct, and may include damages likely to be caused to the tenants of the land-owner. The right to compensation depends on cause and effect, and not on " proximity or distance." 11. The award of a gross sum for damages for drainage which lessened a water-power upon which a mill had been erected, was held presumptively to apply to the damage to the mill, and not to the unemployed water-power, which might be available for the proprietor of the other side of the river.^^ (a) w Caledonia Railway Co. v. Lockhart, 3 Macq. Ap. Cas. 808; s. c. 6 Jur. N. 8. 1311. 11 St. George v. Reddington, 10 Ir. Ch. 176. (a) Under statute 8 Vict. c. 18, the An award, like the finding of a jury umpire in case of arbitration has an in like case, concludes nothing but additional three months after the mat- the amount of damages. The claim- ter devolves upon him, in which to ant's right to compensation is left make his award. Skerratt v. North open. In re Xewbold & Metropolitan Staffordshire Railway Co., 2 Phil. 475. Railway Co., 14 C. B. n. s. 405. [*383] TART lY. THE LAW OF CONTRACTS AS APPLIED TO THE CON- STRUCTION OF RAILWAYS AND TELEGRAPHS; TOLLS, ETC. PART lY. TriE LAW OF CONTRACTS AS APPLIED TO THE CON- STRUCTION OF RAILWAYS AND TELEGRAPHS; TOLLS, ETC. ♦CHAPTER XV. CONSTRUCTION OF RAILWAYS. SECTION I, lAne of Railway. — Right of Deviation. 1, 2. Manner of defining the route in English charters. 3. Plans binding only for the purpose referred to in the act. 4. Contractor bound by contract not- withstanding deviation, unless he object. 5. Equity will not enforce contract for crossing on level, not authorized by act. Against public security. 6. Right to construct accessory works. 7. 8. Company may take lands desig- nated, in its discretion. 9. Equity cannot enforce contract not incorporated in the act. 10 Right of deviation lost by location. 11. Railway between two towns, extent of grant. 12. Grant of right to take land for rail- way includes right to take for accessories. 13. Route designated need not be fol- lowed precisely. 14. Terminus, being the boundary of a town, is not extended as the boun- dary extends. 15. Land-owner accepting compensation waives informality. IG. Powers limited in time expire with limitation. 17. Construction of charter as to extent of route. 18. Map may be made to yield to other grounds of construction. 19. Power to change location must be exercised before construction. 20. Binding force of plans made part of charter. 21. Grant terminating at town liberally construed. § 105. 1; The English railway acts are granted altogotlicr, after full surveys of the route and with reference to ddinite plans of the engineers, which, when referred to generally in the act, thus become so far a part of it as to be binding upon the company, to the extent of determining the datum line and the line of railway [•384] 406 CONSTRUCTION OF RAILWAYS. [PART IV. measured with reference to that datum line, and the level of the railway with reference to the datum line ; but not the surface- levels, unless expressly so provided in the act.^ * 2. The question in this last case was in regard to the riglit to intersect an approach, leading to a mansion-house, at a dif- ferent * level from that laid down in the parliamentary plans, in which it appeared as a cutting of fifteen feet, and the way raised * upon a bridge two feet. The owner of the house, it seems, had opposed the railway being carried through his avenue, but, relying upon the representations contained in the plan and sections, was induced to abstain from opposing the bill. The line of deviation is marked upon the plan, and is by the act limited to ten yards in passing through villages, and one hundred yards in the open country. 3. In this case it was decided, that the plans were only binding upon the company to the extent to which they were referred to in the act, and that it made no difference that the deposited plans were so incorrect as altogether to mislead the owner of the lands, in reference to the manner in which his property would be affected by the railway works. The plans not being referred to in the act, or only referred to, as in the present case, to determine * the datum line with reference to lateral deviation, could not control beyond the matter of lateral deviation. 1 Xorth British Railway Co. v. Tod, 5 Bell Ap. Cas. 184; s. c. 4 Railw. Cas. 449. This M'as an appeal from the judgment of the Court of Sessions in Scotland. The opinions of Lord Chancellor Lyndhurst, and of Lord Chief Justice Campbell, exhibit the rule of the English law on this subject very fully and very ably. See also Beardraer v. London & Northwestern Railway Co., 1 Hall & T. 161; s. c. 5 Railw. Cas. 728. The same rule obtains in this country. Boston & Providence Railroad Co. v. Midland Railroad Co., 1 Gray, 340; Common- wealth V. Fitchburg Railroad Co., 8 Cush. 240. It seems that the deviation of five feet, which, by § 11, Railway Clauses Act of 1845, is allowed in re- gard to levels, is to be reckoned with reference to the level of the datum line, and not with reference to the surface-levels delineated on the plans. And any greater deviation in regard to levels, which may be obtained, under certain conditions, in certain emergencies, is subject to the discretion of the railway commissioners; and at the suit of land-owners affected by such devia- tion, beyond the limits allowed by the act, the Court of Chancery will restrain the company from proceeding until it obtains the judgment of such commis- sioners. Pearce v. "Wycombe Railway Co., 1 Drewry, 244; s. c. 19 Eng. L. & Eq. 122. [*385-*388J § 105.] LINE OP RAILWAY. — RIGHT OF DEVIATION. 407 4. This subject is incidentally connected with tlie performance of construction contracts. But it has been held, where the company deviate from the intended line of tiie road, even beyond what was permitted by their act, with the consent of the land-owner, and tlie contractor never objected to the deviation, but continued to receive certificates of estimates, and payments, in precisely the same mode in which he would have received them had the deviation not taken place, that it did not affect his liability upon the contract.^ 5. A reference in the special act to the deposited plans, for one purpose, does not make them binding for all purposes.^ So, too, where, by the general acts, a railway company has power to pass highways and other roads, by bridges or excavation, in their discretion, but their special act gives them power to pass them on a level, this will not compel them to do so ; they may still exercise the power conferred by the general acts. And a special agreement with land-owners, that they will pass such roads on a level, being a contract in derogation of public right, inasmuch as the public security is greatly jeoparded thereby, will not be specifically enforced in a court of equity.* 6. The extent of deviation is to be measured from the line delineated upon the plans to the actual medium filum of the rail- way as constructed, and the fact of the embankments extending beyond that distance is no violation of the right of deviation allowed in the act.^ Where a tunnel is marked upon the plans referred to in the act, it must be made in the exact position in- dicated,* and the general right of deviation does not apply.^ But * Ranger v. Great Western Railway Co., 5 II. L. Cas. 72; s. c. 27 Eng. L. & Eq. 35. 8 Regina v. Caledonia Railway Co , IG Q. R. 19; s. c. 3 Eng. L. & Eq. 285. Where there is a power given for deviation in the construction, which would render some portion of the delineated surveys impracticable, it must be taken, as of necessity, that the legislature intended the omission of such particulars as became impracticable in a given contingency allowed by the .ict. * Braynton v. London & Northwestern Railway Co., 4 Railw. Cas. 553. But the Lord Chancellor, on appeal, considered that the agreement extended only to the land to be purchased, and that it contained nothing intended to limit the powers given to the company by the general acts. * Payne v. Bristol & Exeter Railway Co.. 2 Railw. Cas. 75; s. c 6 M. .^ W. 320; Armistead v. North Staffordshire Railway Co., 10 Q B. 520; 8. c. 4 Eng. L. & Eq. 216. * Little V. Newport, Abergavenny & Hereford Railway Co., 12 C B. 752; s. c. 14 Eng. L. & Eq. 309. [♦389] 408 CONSTRUCTION OF RAILWAYS. [PART IV. the company may take lands within the line of deviation for a branch railway." Under an act allowing land to be " taken when necessary for making and maintaining the said railway and works," it was held that the company might take lands for forming or en- larging stations, or places for carriages to collect and wait till trains are ready to start; and the Lord Chancellor said, in one case,^ " The term railway, by itself, includes all works authorized to be constructed ; and for the purpose of constructing the rail- way, the company are authorized to construct such stations and other works as they may think proper." 7. And it would seem that, where lands are designated by num- bers on the plans, although not altogether within the line of de- viation, they may be taken by the company when necessary for stations.^ And it has recently been decided in the House of Lords, that where the legislature authorized a railway company to take, for the purpose of their undertaking, any lands specially described in the act, it constitutes them the judges as to whether they will or will not take those lands, provided they take them bona fide, with the object of using them for the purposes authorized by the legis- lature, and not for any sinister or collateral purpose.^^ And after referring the question, as to the propriety or right to take the land, to an engineer, who decided against the company and in favor of the land-owner, the court ultimately held that neither the opinion of the engineer nor of the court could curtail the power of the company in respect to the quantity of land which * the company, bona fide acting under its statutory powers, sought to obtain. ' Sadd r. Maldon, Witham, & Braintree Railway Co., 6 Exch. 143. 8 Cother v. Midland Railway Co., 2 Phil. 469. 9 Crawford r. Chester & Holyhead Railway Co., 11 Jur. 917; 1 Shelf. Railw. Bennet's ed. 617. But the deviation is not authorized for the purpose of taking materials alone. Bentinck v. Norfolk Estuary, 32 Law T. 29. 10 Stockton & Darlington Railway Co. v. Brown, 9 H. L. Cas. 246; s. c 6 Jur. N. s. 1168. But a railway cannot take the fee of land for the purpose of .supplying soil to build an embankment. Eversfield (;. Midsussex Railway Co., 1 Gif. 153; s. c. affirmed 5 Jur. n. s. 776; s. c. 3 De G. & J. 286. Nor can land be taken within the range of the powers conceded by the act, except for the exclusive purpose of the works named in the act, and if any subsidiary object is embraced in the purpose of taking, as, to give a more convenient road for an ordinary land-owner, who was to pay part of the expense, the company will be restrained by injunction. Dodd v. Salisbury & Yeovil Railway Co., 1 Gif. 158; 5 Jur. x. s. 782. [*390] § 105.] LINE OP RAILWAY. — RIGHT OF DEVIATION. 409 8. And where, by a special act, a company were empowered to erect a market house on hind described in the deposited plans, it was held, that as the land of the plaintiff was described in the plans, and as it might be wanted, the company were authorized to take it, and that the company were to be regarded as the proper judges of what lands were necessary for the works.^^ 9. The trustees of a turnpike-road agreed to assent to a bill in parliament for the formation of a railway, on the condition that the railway should pass over the road at a sufficient elevation, and the road be not lowered, or otherwise i)rejudiced. It was held that this modified assent, not being embodied into any agreement between the trustees and company, or incorporated into the act, afforded no equitable ground for restraining the company from the exercise of all their powers under their act; that the company were authorized to sink the original surface of a turnpike-road to gain the requisite elevation for the arch of a bridge to carry the railway over the road, notwithstanding the effect might be to render the road liable to be occasionally flooded.^2 Any omission, misstatement, or erroneous description in the parliamentary plans referred to in the act, may be corrected on ap}>lication to two justices, in the mode prescribed in the act.^^ 10. By statute, in some of the states, a railway company who file the location of their road in the requisite office, are allowed to deviate, to any extent consistent with their charter, in the course of construction.^^ But it has been held, that after once " Richards v. Scarboroujrh Public :\Iarket Co., 23 Eng. L. & Eq. 343. '- Ahlred v. North Midhind Railway Co., 1 Raihv. Cas. 404. ■3 Taylor v. Clemson, 2 Q. B. 978 ; s. c. 3 Raihv. Cas. Go, shows the mode of procedure in such cases. " Boston & Providence Railroad Co. v. ^Midland Railroad Co., 1 Gr.ay, 340. The charter gave the company power to construct the road in five-mile sec- tions, but not to begin the work within a prescribed distance of one terminus, nor until all its stock was taken by responsible persons, and a certain sum paid into the treasury. It was lield, that this requirement of subscription and payment of stock did not fix a limitation on the company in building the whole road not in sections. The courts, in interpreting an act of incorpo- ration, will not consider what took place while it was passing through the legislature. Pennyslvania Bank r. Commonwealth, 19 Penn. St. 144. And in Commonwealth v. Fitchburg Railroad Co., 8 Cush. 240, it was held, that the petitions to the legislature on which (lie act was granted were inadmissible on the question of the construction of the act, relative to tiie course and direction of the line of the road. [•390] 410 CONSTRUCTION OF RAILWAYS. [PART IV. * locating their road their power to re-locate, and for that pur- pose to occupy the land of another or the public street, ceases. ^^ 11. It has been held, that a grant to a railway company to construct their road between two towns gave them implied authority to construct a branch to communicate with a depot and turn-table, on a street in one of the towns (New Orleans) off the direct linc.^^ 12. The grant to take land implies power to take buildings.^" And a grant to take land for the company's road implies the right to take land for all the necessary works of the company, such as depots, car and engine houses, tanks, repairing shops, houses for switch and bridge tenders, and coal and wood yards, but not for the erection of houses for servants, car and engine factories, coal- mines, &c.^^ 15 Little Miami Railroad Co. v. Naylor, 2 Ohio St. 235. And an authority to change the location of the line, during the work, does not imply power to change it after the road is complete. Moorhead v. Little Miami Railroad Co., 17 Ohio, 340. The same view is maintained by Lord Eldon, in Blake- more V. Glamorganshire Canal Co., 1 Myl. & K. 154. But a different rule seems to be intimated in Ex parte South Carolina Railroad Co., 2 Rich. 434, and in Mississippi & Tennessee Railroad Co. u. Devaney, 42 Miss. 555. But see Canal Co. v. Blakeraore, 1 CI. & F. 262; State v. Xorwalk & Danbury Turnpike Co., 10 Conn. 157; Turnpike Co. v. Ilosmer, 12 Conn. 364; Louis- ville & Nashville Branch Turnpike Co. v. Nashville & Kentucky Turnpike Co., 2 Swan, 282, where the proposition of the text is maintained. But in South Carolina Railroad Co. v. Blake, 9 Rich. 229, it is held, that a railway company has the same power to acquire land, either by grant or by compul- sory proceedings, for the purpose of varying, altering, and repairing its road, as for the original purpose of locating and constructing it; but that the com- pany is not the final judge of the exigency for taking the land. The petition of the company for taking the land should allege in detail the necessity for taking it, and the land-owner may traverse these allegations, and in that case this is tried as a preliminary question. Infra, § 123 a. 1^ Knight V. Carrolton Railroad Co., 9 La. An. 284; New Orleans & Carrolton Railroad Co. v. New Orleans Second Municipality, 1 La. An. 128. But where by the charter of a railway the company was authorized to con- struct its road " from Charleston " to certain other points, it was held that this gave it no authority to enter the city, but that the boundary of the city was the terminus a quo. Northeast Railroad Co. v. Payne, 8 Rich. 177. " Brocket v. Ohio & Pennsylvania Railroad Co., 14 Penn. St. 241. 18 vState V. Mansfield Commissioners, 3 Zab. 510; Vermont Central Rail- road Co. V. Burlington, 28 Vt. 193; Nashville & Chattanooga Railroad Co. v. Cowardin, 11 Humph. 348. The company may also take land on which to construct highways substituted in the place of those put to the use of the rail- [*;39l] §105.] LINE OF RAILWAY. — RIGUT OF DEVIATIO.V. 411 13. And a diartor allowing tlic conijiany to oxtoiid their lino to *a certain point, "tlicnco running through Aeton, Sudbury, Stow, Marlborough," «fcc., does not oldigo the comjuiny to locate their road through these towns, in the order named in the charter. And a location of the road from Acton through .Stow to Sudbury, and thence through Stow again to Marlborough, was held to be a suili- cient compliance with the grant. ^^ 14. If the charter of a railway limit the line of construction by the boundai-ics of a borough, and the boundaries of such borough are subsequently extended, that will not alter the right of the company in regard to the location of their road.-'' And an exclu- sive grant for a railway within certain limits, defined at one ter- minus by a city, is to be restrained to the limits of the city at the date of the grant.^^ 15. A party whose land was taken by a railway company for the purposes of their road, and the damages assessed and deposited for, and accepted by him, with full knowledge of all the j)roceed- way in its construction. And the company is not prohibited from so taking land because it aheady has land on which such substituted hipfhway may he built, hut which it designs for other lawful uses. Lamb v. >«'orth London Railway Co., 17 W. K. 7-16; s. c. Law Rep. 4 Ch. Ap. oi^'i. ^^ Commonwealth v. Fitchburg Railroad Co., 8 Cush. 240. See also Brigham v. Agricultural Branch Railroad Co., 1 Allen, 31G. It seems agreed that slight deviations from the route prescribed in the charter will not release the stockholders from the obligation of their subscriptions, but that any substantial deviation will. The precise line of distinction between the two classes of cases must be left to the construction of the courts in each particu- lar ca.se. The stockholders may enjoin the company in the course of con- struction from making an essential deviation, and after the road is completed, the company may, by scire facias, be called to account for not building on the route indicated in the charter. But where all interested acquiesce in the route adopted, until tlie road is completed, it will require a very clear case to induce the courts to interfere. The following cases boar on the general question: Ashtabula & New Lisbon Railroad Co. v. Smith, 15 Ohio St. 3'2S; Champion V. Memphis & Charleston Railroad Co., 35 IMiss. 69li ; Fry v. Lexingt at any time before the construction is finished at the particular poiut.^*' 20. Tlie lines and works of a railway arc sufficiently indicated by black lines upon the plan, and dotted lines anjund them to mark the limits of deviation.^' And where the deposited plans and sections specify the span and height of a bridge by which tlu; railway is to be carried over a turnpike road, the company will * not, in the construction of the bridge, be allowed to deviate from the plans and sections.^^ 21. Under a charter which fixes the terminus of a railway at or near a certain point, a large discretion is conferred upon the com- pany, in locating their road, which will not be controlled by the courts, unless for very clear excess, or where bad faith is shown. And where a company is empowered to extend their line from a point at or near its present terminus, " in Fall River, in a south- erly direction to the line of Rhode Island," a location starting from a point on the line 2,475 feet from the terminus was held authorized.^ SECTION II. Distance, hoiv measured. 1. Measurement of distance is affected by subject-matter. 2. Contracts to build railway, by rate per mile. 8. General rule to measure by straight line. 4. Rule the same in measuring turnpike- roads. 6. Rate fixed by mile means full mile; no charge for fractions. §106. 1. Questions of some perplexity sometimes arise in regard to the mode of measuring distance, in a statute or con- tract. The import of terms defining distance will be sometimes controlled by the context, or the subject-matter, ((j) In one 26 Atkinson t'. Marietta & Cincinnati Railroad Co., 15 Ohio St. 21. 27 Weld ('. London & Soutlnvestern Railway Co., \V2 Beav. 310; s. c. 1) Jur. N. 8. 510. 28 Attorney-General v. Tewksbury & Great Malvern Railroad Co., 1 De G. J. & S. 423; s. c. 9 Jur. N. s. 951. 20 Fall River Iron Works v. Old Colony & Fall River Railroad Co., 5 Allen, 221. (a) A contract to grade a road be satisfied by grading to corporate between two places specified, will not limits, but only by gradino; from t«r- [•394] 414 CONSTRUCTION OP RAILWAYS. [PART IV. case,^ where the assignor of the lease of a public-house in London covenanted that he would not keep a public-house within half a mile from the premises assigned, it was held that the distance should be computed by the nearest way of access. 2. And contracts to be paid for constructing a turnpike, or rail- way, a given price by the mile, would ordinarily, no doubt, re- quire an admeasurement upon the line of the road. It was held, in a late case in Vermont, that in such cases the contractor is not entitled to compute the length of track, and thus include turnouts and side-tracks.2 But this might not exclude branch lines ex- tending any considerable distance from the main track. * 3. But, in general, the English courts have chosen to adhere to the rule laid down by Parke, J., in Leigh v. Hind, that distance is to be measured in a direct line, through a horizontal plane. Thus, in settlement cases, where the pauper laws provide that no person shall retain a settlement gained by possessing an estate or interest in a parish for a longer time than he shall inhabit " within ten miles thereof," it was held, that the distance was to be meas- ured in a direct line from the residence to the nearest point of the parish.^ And the twenty miles within which the parties are required to reside, in certain cases affecting the jurisdiction of the county courts, by the recent statute,^ are to be computed in a direct line, without reference to the course of travel.^ 4. And where a turnpike act provided, that no toll-gate should be erected nor any toll taken, within three miles of B., and the 1 Leigh V. Hind, 9 B. & C. 774. But Parke, J., was of a different opinion, and said: " I .should have thought that the proper mode of measuring the dis- tance would be to take a straight line from house to house, in common par- lance, as the crow flies." 2 Barker v. Troy & Rutland Railroad Co., 27 Vt. 766. 8 Regina v. Saffron-Walden Railroad Co., 9 Q. B. 76. * Statute 9 & 10 Vict. c. 95, § 128. 6 Stokes V. Grissell, 14 C. B. 678 ; s. c. 25 Eng. L. & Eq. 336 ; Lake v. Butler, 5 Ellis & B. 92; s. c. 30 Eng. L. & Eq. 264. minus to terminus as indicated by sta- 235. It seems now to be settled, how- tion grounds. Western Union Railway ever, that distance is to be measured Co. V. Smith, 75111. 496. But a charter in the Hne delineated on the map or to run " to " or " from " a town means plat, without regard to inequalities of no particular spot within its limits, surface or to the curvature of the sur- People V. Louisville & Nashville Rail- face of the earth. Monflet v. Cole, 21 road Co., 25 Am. & Eng. Railw. Cas. W. R. 175. [*395] § 107.] MODE OF CONSTRUCTION. 4\ri road did not extend to B., but connoctod with anotlior turnpike which did, and also a public road made since the act was passed, it was held, that the three miles should be measured " in a atraij^ht line on a horizontal plane, and not along any of the roads." *» f). And whore the rate of fare is fixed by tlie milo, and no pro- vision made for fractions of a mile, the company can only charge the prescribed tariff for the full mile traversed.'^ But the English statute ® provides specially for fractions of a mile. ♦SECTION III. Mode of Construction ; Company to do least possible Damage. 1. Rule under English statute does not extend to form of road, but to mode of construction. 2. Special provisions of act not controlled by this general one. 3. Works interfered with, to be restored, for all uses. § 107. 1. It has been held, that the general provision of the Railway Clauses Consolidation Act, that in the exercise of their powers the company shall do as little damage as possible, and shall make satisfaction to all parties interested, for all damages sustained by them, does not extend to the form of constructing the railway. It does not apply to what is done, but to the manner of doing. 2. Hence, if by other sections of the statute or special act the company are recjuired to build bridges in a particular form, they may still do so, notwithstanding it may cause more damage to the owners of land than to build them in some other form.^ 3. And whore, in a parliamentary contract between the pro- moters of a railway and the proprietors of a ropery, it was 8ti{>- ulated that the railway should be so constructed, that when finished the level of the ropery should not be altered, nor the « Jewell V. Stead, 6 Ellis & B. 350; s. c. 3G Eng. L. & Eq. 114. ' Rice r. Dublin & Wicklow Railway Co., 8 Ir. Cora. Law, 160. «. Statute 21 & 22 Vict. c. 75. § 1 ^ Regina v. East & West India Docks & Birmingham Junction Railway, 2 Ellis & B. 4G6. [*396] 416 CONSTRUCTION OF RAILWAYS. [part IV. surface of the ropery in the least diminished, it was held the company were bound to restore the surface, so as to be available for all purposes to which it might have been applied before the construction of the railway, and not for the purposes of the ropery only.'-^ *SECTI0:N" IV. Mode of crossing Highways. 1. English statutes forbid crossings at grade. 2. Or otherwise provides that gates be erected and tended. 3. And if near a station, that trains shall not run faster than four miles an hour. 4. Company cannot alter course of high- way. 5. Right to use highway gives no right to appropriate military road. 6. Mandamus does not lie to compel par- ticular form of crossing where com- pany has an election. 7. Companj' cannot alter highway to avoid building bridge. 8. Extent of repair of bridge over railwa}'. 9. Permission to connect branches with main line not revocable. 10. Grant of right to build railways across main line implies right to use them as common carriers. 11. Company liable for dangerous state of highway caused by works. 12. Right to lay line across railway car- ries riglit to lay as many tracks as are convenient for the business. 13. Damages for laying highway across railway. 14. Laying highway across railway at grade. Company not estopped by contract with former owner of land. 15. Towns not at liberty to interfere with railway structures. § 108. 1. By the general English statutes upon the subject of railways it is provided, " that if the line of the railway pass any turn))ike-road, or public highway, then (except when otherwise provided by the special act) either such road shall be carried over the railway, or the railway shall be carried over such road, by means of a bridge." ^ (a) 2 ITarby v. East & West India Docks & Birmingham Junction Railway, 1 De G. M. & G. 290. ^ Railway Clauses Consolidation Act, § 46. Mandamus requiring the com- pany to carry its road over a highway, by means of a bridge, when that was the only mode in which it could be done, according to the level of the line of the railway at the time, was held bad. Southeastern Railway Co. t;. Queen, 17 Q. B. 485. («) "WTiat are highways within Sea View Railway Co., 84 N. Y. 308. the meaning of the New York stat- The -word "track" in a statute au- utes, and what railways. Stranahan v. thorizing a crossing held to mean the [*397] § 108.] MODE OF CROSSING JUG II WAYS. 417 2. And by § 47 it is provided, that whenever tlic railway does pass any such road upon a level, the company shall maintain gates at every such crossing, either across tlie highway or the railway, in the discretion of the railway commissioiKMs, and em- ploy suitable persons to tend the same, who are recjuired to keep them constantly shut, except when some one is actually passing the highway, or railway, as the case may l)e.- 3. And where a railway passes a highway near a station, on * a level, the trains are required to slacken their speed, so as not to })ass the same at any greater speed than four miles an liour."^ 4. The right to raise or lower highways, in the construction of a railway, docs not authorize the company to change the course of the highway, even with the consent of the town council, and for so doing the company were held liable to persons who had sustained special damage thereby."* 5. The right to use " highways " in the construction of plank roads, contained in a general law, does not extend to military roads constructed by the United States, while the state was a 2 A road on which toll-gates are erected and tolls taken is a turnpike road. Northam, Bridge, & Roads Co. v. London & Southampton Railway Co., G M. & \V. -128; 1 Railw. Cas. G53; Regina r. East & West India Docks & Birming- ham Junction Railway Co., 2 Ellis & B. 4G6. ' Some similar provisions, in regard to the construction of railways in this country, seem almost indispensable to the public security. * Hughes I.'. Providence & Worcester Railway Co., 2 R. I. 403. It is the duty of a railway company not to obstruct public roads, where they intersect the track, either by stopping a train or otherwise; and the company must take the consequences of all such obstructions. ^lurray v. South Carolina Rail- road Co., 10 Rich. 227. entire roadbed, including turnouts way which it has crossed in safe con- aud switches. Delaware & Hudson dition for public use; and where the Canal Co. v. Whitehall, 90 N. Y. 21. duty is inii)osed by charter it will The duty to maintain crossings does descend upon a subsequent owner. not depend on tlie legality of the high- Peoiile r. Chicago & Alton Railroad way. If it is openly and notorio\isly Co., (j7 111. 118. Where by reason of used as such, and as such recognized by increase of population a crossing has the company by the ostensible niaiute- become inadequate, it is the duty of nance of a public crossing, it is enough, the company to make the nece.ssary Kelly I.'. Southern Minnesota Railway changes. Cooke r. Boston & Lowell Co., 28 Minn. 98. In general, it is tlie Railroad Co., 10 Am. & Eng. Railw. duty of the company to leave a high- Cas. 328. VOL. I. -27 [*398] 418 CONSTRUCTION OF RAILWAYS. [PART IV. territory,^ but the legislature may grant such right, by the charter of the company. 6. And where a mandamus ^ recited tliat the railway, which defendants were empowered to make, crossed a certain public highway, not on a level, by means of a trench, twenty feet deep and sixty-five feet wide, through and along which the railway had been carried, and tlie highway thereby was cut through and rendered wholly impassable for ])assengers and carriages ; and that a reasonable time had elapsed for defendants to cause the highway to be carried over the railway by means of a bridge, in the manner pointed out in the statute," and commanded defeud- ants to carry the highway over the railway by means of a bridge, in conformity with the statute, particularly specifying the mode: it was held, tliat it not being otherwise specially provided in the company's charter, they had, by the general act, an option to carry the highway over the railway, or the railway over the highway, by a bridge ; and that the option was not determined by the facts alleged in the writ, and the judgment of the Exchequer, * award- ing the writ, was accordingly reversed in the Queen's Bench. 7. Where the charter of a railway authorized them, by con- sent of the commissioners, to alter a highway whenever it became necessary in order to build the railway in the best place, and required the company to maintain all bridges made necessary to carry the highway over the railway : it was held that the com- pany had no power to alter the course of the highway in order to avoid the expense of building a bridge ; and that the old high- way was still subsisting, notwithstanding the attempt thus to lay out a substitute.^ 8. And where a railway company, under their statutory powers, in England, carry a highway over their road by means of a bridge, the company is bound to keep both the bridge and the road and 6 Attorney-General v. Detroit & Erie Plank- Road Co., 2 Mich. 138. ^ Regina v. Southeastern Railway Co., 15 Q. B. 313; s. c. 6 Eng. L. & Eq. 214. 7 Statute 8 & 9 Vict. c. 20. 8 Norwich & Worcester Railroad Co. v. Killingly, 25 Conn. 402. Nor has the company any right under such a power materially and essentially to change the route of a highway, that being a power resting solely in the discre- tion of the municipal authorities. Warren Railroad Co. v. State, 5 Dutcher, 393. See also Veazie v. Penobscot Railroad Co., 49 Me. 119; Eaton v. Euro- pean & North American Railroad Co., 59 Me. 520. [*390] § 108.] MODE OF CROSSING HIGHWAYS. 41*J all tlic approaches thereto in repair, and such repair includi's not only the structure of the bridge but the superstructure, and everything requisite to put the highway in (it condition for safe use.^ (b) 9. Where the proprietors of land, through which a railway company were empowered to take the right of way, had the right to lay branch railways upon the lands adjoining, and to connect them at proper points with the main line, so as not to endanger the safety of persons travelling as passengers upon the railway, and in case of difference in regard to any of these points, the same to be determined hy two justices of the j)eace ; but the company were not required to admit any such branch to connect * with their line, at any place where they should have erected any station or other l)uilding ; it was held that the consent of the 9 North Staffordshire Railway Co. r. Dale, 8 Ellis & B. 835. But where the expense of keeping a bridge in repair was imposed by statute on several towns and a railway company, jointly, with a provision that the municipal authorities of one of the towns should have the care and superintendence of the same, and "employ all services necessary in the care thereof," it was iield that this did not impose any special obligation on that particular town, in re- gard to the repairs, but that all the parties still remained jointly responsible for the performance of that duty, and that the municipal authorities of that town were thereby made the agents of all the parties thus responsible; and that therefore one of the parties could not maintain an action against the town for an injury through the joint neglect of all the parties. ^lalden & ^lelrose Railroad Co. v. Charlestown, 8 Allen, 2io. {Ii) So in this country, and for neg- as not to unnecessarily impair its use- lect of this duty the company may fulness " does not of necessity require be indicted. People v. New York a bridge the full width of the high- Central & Hudson River Railroad Co., way; nor where the railway crosses 74 N. Y. 002. And see People c. below grade is the bridge necessarily Dutchess & Columbia Railroad Co., a nuisance because it is of less grade 58 N. Y. 152; Hayes v. New York than the highway. People v. New Central & Hudson River Railroad Co., York, New Haven, & Hartford Rail- 9 Hun, G:); People r. Same, 74 N. Y. road Co., 89 N. Y. 2(iG. A statute 302; Farley r. Chicago, Rock Island, requiring the construction of a bridge & Pacific Railroad Co., 42 Iowa, 234; in a specified manner is not nnconsti- Little Miami Railroad Co. r. Greene tutional because it imposes additional County Commissioners, 31 Ohio St. burdens on the company. Such bnr- 338; State v. Dayton & Southeastern dens may be imposed for the public Railroad Co., 3G Ohio St. 434. The good. People v. Boston & Albany duty of restoring " the highway as Railroad Co., 70 N. Y. 509. near as niav be to its former state, so [•400] 420 CONSTRUCTION OF RAILWAYS. [PART IV. company to unite with the line at a station was not in the nature of a license and could not be revoked.^'^ 10. And where the owners or occupiers of adjoining land had the riglit to build railways, and to cross the line of the principal railway, without being lialjle to toll or tonnage, it was held the owners of such railways might use them as common carriers of freight and passengers.^^ 11. It lias been held that railway companies are responsible for injuries, resulting from the dangerous state of highways, caused by their own works, as where one fell into a culvert, made by tlie company at a highway crossing, to prevent the accumulation of the water, it being invisible at the time by reason of snow.^ So also in all cases where the defect in the highway is caused by the works of the railway company, the latter will be responsible for all injuries in consequence, although the party might also obtain redress of the town bound to maintain the highway .^^ 12. A railway corporation having acquired the right to lay its line across a highway, may lay and maintain as many tracks as are essential to the convenient transaction of its business.^^ 13. A railway corporation is entitled to damages for land taken by laying a public highway across its line, and for the expense of maintaining signs and cattle guards at the crossing, and of floor- ing the same and keeping it in repair ; but not for any increased liability to accidents, for increased expense of ringing the bell, or for its liability to be ordered by the county commissioners to build a bridge for the highway over the track. And in assessing damages, in such a case, no supposed benefits from an increase of travel on the railway can be set off against the company .^^ 14. Under the revised statutes of Massachusetts, town or city authorities have no power to lay a highway across a railway, at grade, and the company is not estopped from objecting thereto by any agreement with the former owners of the land in regard to * the right of way to be used by them at the point where the liigh- 10 Bell V. :Midland Railway Co., 3 De G. & J. G73. " Hughes V. Chester & Holyhead Railway Co., 8 Jur. N. s. 221. 1- Judson V. Xew York & New Haven Railroad Co., 29 Conn. 434. 13 Gillett i;. Western Railroad Co., 8 Allen, 560. 1* Commonwealth v. Hartford & Xew Haven Railroad Co., 11 Gray, 379. ^ 15 Old Colony & Fall River Railroad Co. v. Plymouth County, 14 Gray, 155. [*401] I § 100.] RIGHTS OF TELEGRAPH COMPANIES. 421 way is laid.^^ Nor can such authorities, under the pencral stat- utes of that state, lay out a way across any portion of the hind, not exceeding five rods in width, whicli has been taken by a rail- way company for their line, unless permission has been granted liy the county commissioners.^" 15. Where a railway company had rightfully carried its line through a compactly built village, by means of a deejj cut run- ning under the principal street, which had to be carried over the cut by a bridge, and had built a station supported by the walls of the excavation ; it was held that the town had no right so to con- struct a drain as to throw the water of the street into the cut and thereby undermine its walls, even if the railway works at that point had intercepted the natural drainage, and there was no other practicable mode of remedying the evil, except at greater, although not extravagant, expense.'^ It was accordingly held the company were entitled to an injunction against the town, inhibitin) 4. But the party may excuse full performance by showing that he was prevented by an injunction out of Chancery, at the suit of a third party.* Or, that the parties had entered into a new con- tract for the same Avork, upon different terras.^ 5. Where the work was suspended at the request of the com- pany, with the view to a new location, the company agreeing to pay the plaintiff $750 by way of damages, if the work should not be resumed within two years, and, if it was, the plaintiff to pro- ceed with the work at the prices stipulated, upon those sections not altered ; the route being altered as to some of the sections, upon which the defendants resumed within the two years, em])l(>y- ing others to do the work, without giving notice to plaintiff ; held that the plaintiff could not recover the damages agreed, as the work was resumed within the two years, but that the plaintiff was entitled to damages for not being employed to do the work.° 6. Where, by the terms of the contract, a proportion of the sum * earned is to be paid monthly, and the remainder reserved, as security for the fulfilment of the contract, it was held, that nothing contractors, of tl)e hands who had been employed on the works by the sub- contractor, and furnishing money to carry on the work, was not a waiver of the forfeiture, especially if he was then ignorant that there had been a forfeit- ure. Faunce v. Burke, 16 Penn. St. 409. In English contracts it is common to provide for the use of the contractor's plant, in case of the company's put- ting an end to the contract, and for the sale of the same, and crediting the money to the contractor. Hut this construction will not be adopted unless loss or expenses have been occasioned, for which the contractor is responsible. Garrett r. Salisbury & Dorset Junction llaihvay Co., Law Rep. 2 Eq. 35S. ' Andrews v. Portland, 35 Me. 475. And it was held here, that part pay- ment, under the contract, after the contractor had failed in strict performance, was no waiver, unless the failure was known to the employer at the time of payment. ^ Whitfield V. Zellnor, 24 Miss. GG3. ' Howard v. Wilmington & Susquehanna Railroad Co., 1 Gill, 311. ' Fowler v. Kennebec & Portland Railroad Co., 31 Me. 197. The construc- tion here adopted seems not very satisfactory. (h) As to what will constitute a 610. As to prevention through fault waiver, see Phillips & Colby Con- of the other party, see Beau v. Miller, struction Co. v. Seymour, 91 U. S. 69 Mo. 3S4. [*408, *400] 428 CONSTRUCTION OP RAILWAYS. [PAUT IV. was due till the day of payment, which could be attached by trus- tee process." 7. And where, in such case, the company have the power to determine the contract, and the reserved fund is thereby to be forfeited, and the company do so, after the contractor has worked one month and part of another, and has received the proportion of payment for the first month, it was held nothing was due to the contractor.^ 8. Where a railway company, after making a contract for the construction of its road, became embarrassed, and was unable to make payments to the contractor, and the president, wlio was a stockholder, and extensively interested in the success of the enter- prise, made an additional agreement with the contractor that he would give him his notes to the amount of 810,000, if the work were completed by a day named, it was held, that he was not liable upon the agreement unless the contractor performed his part of the agreement by the day named. The notes were, by the terms of the agreement, to go in part-payment of what was due from the company, and the new agreement was not to affect the subsisting contract with the company.^ SECTION IX. Form of Execution. — Extra Work. — Deviations. 1. Contract need be in no particular [ 3. Company not liable for extra work form. 2. But the express requirements of the charter must be complied witli. unless it was done on the terms specified in contract. Sed qiicere, if the company has had the benefit of the work. § 113. 1. No particular form of contract is requisite to bind the company, unless where the charter expressly requires it.i And although there seems still to be a failing effort in the English "< Williams v. Androscocjcfin & Kennebec Railroad Co., 36 ^le. 201. 8 Hennessey v. Farrell, 4 Cush. 267. » Slater v. Emerson, 19 How. 224. 1 Infra, §§ 130, 143, 164. Corporations cannot enter into partnerships, but two or more corporations may become jointly bound by the same contract. Marine Rank r. Ogden, 29 111. 248. [*409] §113.] EXECUTION. — EXTRA WORK. — DEVIATION. 429 ♦ courts to maintain the necessity of the contracts of corporations being under seal,^ it is certain that the important business tran.s- actions of daily occurrence, in both that country and here, where no such formality is resorted to by business corporations, in mat- ters of contract, and where to look for any such solemnity would be little less than absurd, almost of necessity drive the courts of England to disregard the old rule of requiring the contracts of corporations to 1)C made under the corporate seal.-'^ 2. Jjut when the charter of the corporation requires any particu- lar form of authenticating their contracts, it cannot be dispensed with. And where, by the charter of a railway company, the di- rectors were authorized to use the common seal, and all contracts in writing relating to the affairs of the company, and signed by any three of the directors, were to be binding on the company ; and the company entered into a contract, not under seal, by their secretary, to complete certain works, and, after part-performance, the contractor was dismissed by the company, it was held he could not recover the value of the work done.^ 2 Ludlow V. Charlton, G M. & W. 815. But see Beverly v. Lincoln Gas Light & Coke Co., 6 A. & E.' 829; Dunstan r. Imperial Gas Light Co., 3 B. & Ad. 125; and Gibson v. East India Co., 5 Bing. X. C. 202, per Tindal, C. J., from which it would seem that the English courts except from the operation of the rule only such transactions of business corporations as could not reason- ably be expected to be done under seal. But see Columbia Bank v. Pattei'son, 7 Cranch, 299, and 2 Kent Com. 289, 291, and notes, where it is said the old rule is condemned, and the English and American cases are cited and com- mented on. Infra, § 143; United States Bank v. Dandridge, 12 Wheat. Ci; Metropolis Bank v. Giittschlick, 11 Pet. 19; Norwich & Worcester Railroad Co. V. Cahill, 18 Conn. -181; San Antonio v. Lewis, 9 Texas, G9. See aLso, AVeston v. Bennett, 12 Barb. 190; Rathbone v. Tioga Navigation Co., 2 Watts & 8. 74. ^ Diggle V. London & Blackwall Railway Co., 5 Exch. 412; .i. c. G Railw. Cas. 500. It is said here that a contract, to be binding on a corporation when not under seal, must be one of necessity, or of too frequent occurrence, or too trivial to be made under seal. In Williams r. Chester & Holyhead Railway Co., 15 Jur. 828; s. c. 5 Eng. L. & Eq. 497, Mauti.n, B , says persons deal- ing with corporations should bear in mind their peculiar character, and insist on having all contracts under seal or signeil by the directors according to statute. But see infra, § 143, and cases cited. And wlicre the assistant engineer on a railway, having charge of the construction of a section of the road, becoming dissatisfied with the contractor, dismi,s.sed him, and a.ssnmed the work himself, agreeing with the workmen to see them paid, it w.os held that his subsequent declarations could not be admitted, to charge the company [*410] 430 CONSTRUCTION OF RAILWAYS. [PAIIT IV. * 3. But where the contract contains express provisions that no allowance shall be made against the company for extra work, unless directed in writing under the hand of the engineer or some other person designated, or unless some other requisite formality be complied with, the party who performs extra work, upon the assurance of any agent of the company that it will be allowed by the company, without the requisite formality, must look to the agent for compensation, and cannot recover of the company, either at law or in equity.* (a) So, under the English General Company Acts, where the directors are authorized to contract on the part of the company, although not in writing, when such contracts would, if entered into by private persons, be binding in that form, for supplies furnished the contractors, on the ground that they were not made in the course of the performance of his duty as agent of the company. Stiles V. ^Vestern Railroad Co., 8 Met. 44; s. c. 1 Am. Railw. Cas. 397. See also Underwood v. Hart, 23 Vt. 120, where the subject of the admissions of agents is discussed, and the cases reviewed. If a contract under seal be enlarged by parol and subsequently performed, or if the terms of the contract under seal be varied by parol, the proper remedy is by an action of assumpsit. Sherman V. Vermont Central Railroad Co., 24 Vt. 347; Barker v. Troy & Rutland Rail- road Co., 27 Vt. 774. In Childs v. Somerset & Kennebec Railroad Co., Law Rep. 5G1, where the plaintiff, by special contract, agreed to build certain bridges and depots for the defendant corporation, for which he was to be paid partly in cash and partly in stock, and in the progress of the enterprise it be- came necessary to do much extra work, and furnish materials not provided for in the special contract, it was held that the plaintiff was entitled to recover the whole value of the extra work and materials thus furnished in money, on an implied assumpsit, and that the agreement to take pay in shares did not extend to this part of the work. * Kirk V. Bromley Union Guardians, 2 Phil. 640; Thayer v. A'ermont Central Railroad Co., 24 Vt. 440; Herrick v. Vermont Central Railroad Co., 27 Vt. C73 ; s. c. 1 Redf. Am. Railw. Cas. 305; Vanderwerker v. Vermont Central Railroad Co., 27 Vt. 125, 130. (a) A verbal order will not suffice changed as to bring a portion con- even though the contract also provides sisting of excavation within a section that the engineer may direct altera- for which the contractor was paid only tions and additions. White v. San for embankment, it was held that Rafael & San Quentin Railroad Co., having been once paid for his work he 50 Cal. 417. was not entitled to payment on a Where a contract for grading per- sectional division which would give mitted a change of line or grade, the him more. Fish v. Wolfe, 50 Iowa, contractor to be paid only for work 636. actually done, and the line was so [*411] §11-1-] REPUDIATION. — INEVITABLE ACCIDENT. 431 three directors being a quorum fur that purpose, it was liehl that tiie mere fact that extra work was done with the apjirobation of tlie company's engineer, the special contract requiring written directions for all the work, had no tendency to prove a contract binding the com})any.^ * 4. In one very well considered case*^ upon the subject of extra work not authorized in the manner specified in the contract, it is said by the Vice-Chanccllor : " From what 1 have been informed of the course taken at law in these cases, it is this: if in an action by a contractor, it appears that the company have the benefit of the work done with their knowledge, tlie court of law does not allow the company to take the benefit of that work with- out paying for it, although in covenant (or any action upon the contract) the contractor cannot recover." This may be in accord- ance with the general rules of law applicable to the subject." SECTION X. Repudiation of Contract. — Other Party may sue immediately. — Inevitable Accident. 1. Repudiation by one party excuses per- formance by tlie otiier. 2. But lie may stipulate for performance on different terms. .3. President cannot bind the company for additional compensation. 4. Effect of inevitable accident. § 114. 1. Questions often arise in regard to the right of a party to sue for damages before the time for payment arrives, and before he has fully performed on his part. But it seems now to be well settled, that where one party absolutely repudiates the contract on ^ Iloniersham v. Wolverhampton Waterworks Co., G Exch. 137; s. c. G Railw. Cas. 790. Pollock, C. B., said: " The company is not bound by tho mere order of the engineer, or by the contract with one director." « Nixon f. Taff Vale Railway Co., 7 Hare, 13G. But see infra, §§ 130, 113. 7 Dyer r. Jones, 8 Vt. 205; Oilman v. Hall. 11 Vt. 511. But, in many cases, the work is done by a sub-contractor, and enures to the benefit of the original contractor, as in Thayer r. Vermont Central Railroad Co., 24 Vt. 440, and would not therefore give any right of action against the company, al- thougli in one sense the company may put the work to its own use, and so may be said to have the benefit of it to some extent. [•412] 432 CONSTRUCTION OF RAILWAYS. [PART IV. his part, he thereby exonerates the other from further perform- ance, and exposes himself presently to an action for damages.^ *2. Where the contract is unconditionally repudiated by one party, before it is fully performed, it is competent for the other to stipulate for its performance, upon different terms, no doubt. And such stipulation, although not under seal, would probably be regarded as made upon a valid and sufficient consideration ; and if made by an agent of the former party to the contract, but who had not authority to bind his principal to such contract, it would nevertheless be binding upon the agent and other party contract- ing, and would not be required to be in writing, as it would be an original and not a collateral undertaking. 3. But it has been held, that after a railway company has en- tered into a written contract for the performance of certain work, the promise of its president to allow additional compensation to the contractors for the same work, is without consideration, and not binding upon the company .^ 4. A very singular question arose in an English case.^ The plaintiff agreed to make and erect on premises, under the control of the defendants, certain machinery, and the latter were to pro- vide all necessary brick work, &c. Before the works were com- pleted the buildings in which the work was to be done were 1 Cort V. Ambergate, Nottingham, Boston, & Eastern Junction Railroad Co., 17 Q. B. 127; s. c. 6 Eng. L. & Eq. 230; Blanche t-. Colburn, 8 Bing. 14; Hochster v. De Latour, 2 Ellis & B. 678; s. c. 20 Eng. L. & Eq. 157. But in an action to recover damages on such contract, the jury are not to go into con- jectured profits resulting from a sub-contract very much below what the plain- tiff was to be paid. Only the difference between the contract price and the value of doing the work at the time of the breach can be given. Masterton v. Brooklyn, 7 Hill, 61. The repudiation of a contract by the company, followed by seizure of the works, under order of a court, will be held a waiver of its right to proceed by arbitration under the same contract on all matters involved in the question of the legality of the seizure. Putney ?>. Cape Town Railway Co., Law Rep. 1 Eq. 84; Bunger v. Koop, 48 N. Y. 225. 2 Colcock V. Louisville Railroad Co., 1 Strob. 329; Nesbitt v. Louisville, Cincinnati, & Charleston Railroad Co., 2 Speers, 697. The controversy here was in regard to hard-pan excavation. It was held that as the plaintiff con- tracted to do all the work on the road, and to construct the road bed, and his contract only provided for earth and rock excavation, he was bound to accept his estimates under the contract, and that especially, after having done so, he could not claim extra compensation for excavating hard-pan, even if he showed that, by usage, "earth" had a technical meaning, and did not include hard-pan. 3 Appleby v. Meyers, Law Rep. 1 C. P. 615; s. c 12 Jur. n. s. 500. [*413J § 11a. J DECISIONS OF REFKUEK.S AND AUUITRATOUS. 433 destroyed by fire. It was held the ])laiiiti ffs were entitled t<) recover for the work already dune by tliem before tbe liic, and that it was an implied term of the contract tliat the defendant should provide the buildings in which the work was to be done, and enable the plaintiffs to do their part of the work, and there- fore that the defendant was not relieved by the occurrence of the fire; as a party who contracts to do a thing is bound to carry out his engagement, or to make compensation, notwithstanding he is prevented by inevitable accident. * SECT I OX XL Decisions of Referees and Arbitrators in regard to Construction Contracts. 1. Award valid if substantially, though | 2. Court will not set aside award, where not technically correct. I it does substantial justice. § 115. 1. The general rule of law, in regard to the decisions of arbitrators and referees, by which they have been held binding upon the parties, although not made strictly according to the tech- nical rules of law, if understand ingly made, and exempt from fraud or partiality, has been sometimes applied to contracts for construction of railway works, the settlement of which has been determined by an umpire, (a) As where the contract reserved the right to the company to alter the gradients of the road, and to substitute piling for embankment without extra allowance. These alterations were made, and thus increased the expense to the contractors. The final settlement being made by referees, to whom " all matters in dispute with the contract as a basis of settlement," were referred, and they liaving allowed the con- tractor compensation for this increased expense, it was held to be within the power conferred upon the referees.^ 1 Torter i'. Buckfield Branch Railroad Co.. 32 Me. 530. In this case the contract provieled for payment of a portion of the price of the work in stock, and the arbitrators directed, that the same proportion of the award should be paid in stock, and the award was held valid. (a) A stipulation in a contract by void, as against public jxtlicy. Kistler which the parties name an umpire, i\ Indianapolis & St. Louis Railroad and agree not to resort to the courts is Co., SS lud. -100. VOL. 1. — 28 [*-il-iJ 434 CONSTRUCTION OF RAILWAYS. [part IV. 2. So, too, where the contract specified a price for earth exca- vation, and another for rock excavation, but notliing was said of " hard-pan," a good deal of which occurred in the course of the woi-k, which was admitted to be more expensive than the ordinary earth excavation; the whole subject was referred, and the plain- tiff claimed in his specification thirty cents per yard for cxcavat- in'g hard-pan, and the referees allowed him fifty cents on trial. The defendants objected to the allowance, being more than the claim. But the court said, where the testimony was received without objection, and showed the party entitled to recover beyond his specification, the court will not set aside the report, or grant a * new trial, where it is apparent the party has not recovered more than what he is fairly entitled to.^ SECTION XII. Decisions of Comjyany'' s Enffineers. 1. Estimates for advances, mere approxi- mations, under English practice. 2. But where the engineer's estimates are final, can only be set aside for partiality or mistake. 3. Contractor bound by practical con- struction of the contract. 4. Estimates do not conclude matters not referred. 5. Contractor bound by consent to accept pay in depreciated orders. 6. Right of appeal lost by acquiescence. 7. Engineer cannot delegate his author- ity under reference. 8. Arbitrator must notify parties, and act bona fide. § 116. 1. The English contracts for railway construction gen- erally contain a provision for referring the final settlement with the contractor to an indifferent board of arbitrators, or one selected by the parties respectively, with the umpirage of a third party in case of disagreement.^ Under such contracts the provision in 2 Da Bois I'. Delaware & Hudson Canal Co., 12 AVend. 331. ^ Ranger v. Great Western Railway Co., 5 H. L. Cas. 72 ; s. c. 27 Eng. L. & Eq. 35, 40. So where in a canal contract it is provided, that the engineer "shall in all cases determine the amount or quality of the several kinds of work " to be done, and the compensation therefor, and that either party may compel an indifferent reference, where he feels aggrieved by the decision of the engineer, "to investigate and determine all questions that may arise re- lating to compensation for work done under this contract," it was held, this [*415] § 110.] DECISIONS OF COMPANY'S ENGINEERS. 435 regard to monthly or semi-monthly estimates is such, that they are understood to l^e mere aj)i)roxiniafions, and it is only equivalent to a provision, that the company shall advance, from time to time as the work progresses, for a stipulated proportion of the work, which they shall by their engineer adjudge to be done. All that is requisite to the validity of such estimates is, that they were made bona fide, and with the intention of acting according to the exigency of the contract.^ * 2. But where the contract contains provisions referring the estimate of the quantity and quality of the work absolutely to the determination of the company's engineer, or any particular party, and provides, as is not uncommon in this country, that his decision shall be final, no relief from his determination can ordi- narily be obtained, even in a court of equity, unless upon the ground of partiality, or obvious mistake, which latter is held to apply rather to the quantity than the quality of the W(jrk, tiiis being purely matter of judgment and discretion, and wliicli was intended to be concluded by the opinion of the arbitrator.- (^a) umpirage extended only to the final account of the engineer. People v. Benton, 7 Harb. 20!). Under a contract where the company stipulated to pay the con- tractor ninety per cent of work done, according to the engineer's estimiite, and the engineer had the right to declare the contract abandoned, and in that event the ten per cent became forfeited; and the engineer did so declare; it was held that this did not absolve the company from the payment of the ninety per cent on the work done, before the contract was declared abandoned. Kicker v. Fairbanks, 40 Me. 13. 2 Ileriick v. Vermont Central Railroad Co., '27 Vt. G73; Kidwell r. Ralti- niore & Ohio Railroad Co., 11 Grat. 376; Alton Railroad Co. v. Northcott, in 111. 40. In this case it was held that the estimate of the umpire will not bind the parties, if based on an erroneous view of the contract. So a court of equity may correct the mistakes of the engineer, altliough the contr.-xct stipu- lates that his decision shall be final. Mansfield & Sandusky Railroad Co. r. Veeder, 17 Ohio, 385. So, too, where the engineer proves to be a stockholder in the company. Milnor v. Georgia Railway & Banking Co., 4 Ga. 385. And in Kems v. O'Reilley, Leg. Int. Aug. 31, 1866, it was decided that the award of an engineer between contractor and snb-contiactor is final. And in Lccoh V. Caldwell, Leg. Int. Nov. 10, ISHG, it was held, that where the sub-con- tractor covenanted to abide the decision of the engineer of the work in any dispute arising on the contract, the alleged fraud of the engineer did not affect the covenant. (a) So held in Grant v. Savannah Co., 11 Am. & Kng. Railw. Cas, 5Sf). Railroad Co., 51 Ga. 348. And see See also Atlanta & Richmond Air Loup V. Southern California Railroad Line Railroad Co. v. Mangham, 49 [•41G] 436 CONSTRUCTION OF RAILWAYS. [PART IV. But in an English case ^ before Yicc-Chancellor Stuart, where in a building contract the corporation reserved the power to deter- mine the contract, which they afterwards exercised, and it was stipulated that any dispute or difference which might arise between the contracting parties should be referred to and settled by the engineer, that it should not be competent for either party to except at law or equity to his determination, and that without the certifi- cate of the engineer no money should be paid to the plaintiffs ; it appearing that the enghieer had never refused to discharge his duty according to the contract, and had nothing to disqualify him to act, and was ready and willing to proceed and determine all matters at issue between the parties : it was held that there was no ground for the equitable interference of the court. 3. If the contractor acquiesce in a particular construction of his * contract, and allow his estimates, from time to time, to be made upon such basis, he will be bound by it thereafter.* 4. Where the contract specifies a price for rock excavation, and another for ordinary earth excavation, and in the course of the work a large quantity of hard-pan was excavated, for whicli no 3 Scott V. Liverpool, 31 Law T. 147. This subject is discussed in Roberts V. Bury Improvement Commissioners, Law Rep. 4 C. P. 755; s. c. 5 Law Rep. 5 C. P. 310. But there is so much difference of opinion among the judges that no new principle can fairly be said to be established. See also Jones V. St. John's College, Law Rep. 6 Q. B. 115. * Kidwell V. Baltimore & Ohio Railroad Co., 11 Grat. G76. See also Com- monwealth V. Clarkson, 3 Penn. St. 277. Ga. 26G, where it is held that the mine all questions growing out of award of an engineer is no more bind- the contract, and sole judge of the ing than tliat of any other arbitrator, quantity of labor and materials, and And see also Sharpe r. San Paulo a certain price for certain work is Railway Co., Law Rep. 8 Ch. Ap. 597, agreed on, he has no power to fix where the contract provided that the compensation after a different meas- certificate of the engineer should be ure. Starkey v. Do Graff, 22 Minn, conclusive, and it was held that it 431. If the engineer neglects or refuses should be so, there being no fraud, to estimate the work, recovery may be although there was an underestimate had of the correct amount otherwise of the work in the engineer's original proved. lb. ; Kistler v. Indianapolis & specifications, on the basis of which St. Louis Railroad Co., 88 Ind. 460. the contract was taken, and although And so if by neglect or mistake he the engineer had made verbal promises underestimate it. Kistler u. Indian- of a greater compensation. Where apolis & St. Louis Railroad Co., the engineer is made umpire to deter- supra. [*417] § 116.] DECISIONS OP COMPANY'S ENGINEERS. 437 provision was made in the contract, and the other party conceded that compensation was due, beyond tlie price fixed in the contract for ordinary earth excavation, it was decided that the contractor might recover upon a quantum meruit count. And where the con- tract also provided that the enrrinccr should finally determine all questions necessary to the final adjustment of the contruf-t, this did not render the engineer's estimate conclusive, as to the sum to he paid for excavating hard-pan." These points are both decided, mainly it is presumed, upon tlic concession of the defendant that the hard-pan excavation was a matter altogether outside of the contract. Otherwise it might seem dilficult to maintain their entire consistency with other decided cascs.*^ 5. Where the contract gives the engineer power to stop the work, when the means of carrying it forward fail, and he informed the contractor it could not proceed unless he would receive his monthly pay in orders, which were at a discount, and the con- tractor consented to receive them, he is not entitled to recover of the company the amount of such depreciation.'^ 6. And altliough the contractor, by the contract, had the power to refuse to abide by the final estimates of the engineer, yet if he submitted to him his charges for the work done, and made no objection to his making up the final estimate, he is bound thereby.'^ 7. Where in a contract for work upon a railway it was stipu- lated that the work should be measured by defendant's engineer * or agent, which should be final and conclusive, it was held that such person could not delegate his authority, but that it was indispensable that he should himself make the admeasurement. But in making it, it is not necessary that he should give previous notice to the parties to enable them to be present.^ 6 Du Bois V. Delaware & Hudson Canal Co., 12 Wend. 331; s. c. 15 Wend. 87. See s. c. 4 Wend. 285. But see supra, § 111; Nesbitt r. Louisville, Cin- cinnati, & Charleston Railroad Co., 2 Speers, G97, where hard-pan seems to be regarded as earth excavation, unless there is some special provision in the contract /or estimating it otherwise. ^ Morgan r. Birnie, 9 Bing. C72. See also Sherman v. New York, 1 Comst. 316, 320. ' Kidwell V. Baltimore & Ohio Railroad Co., 11 Grat. G7G. See also Com- monwealth V. Clarkson, 3 Penn. St. 277, on the general subject of the conclu- siveness of the engineer's estimate. 8 Wilson r. York & Maryland Line Railroad Co., 11 Gill & J. 58. Gross negligence is not fraud, but evidence to be considered by the jury. Id. [*418] 438 CONSTRUCTION OF RAILWAYS. [PAIIT IV. 8. But if such agent is to make an estimate of certain expenses to be allowed the i)laintiff, and he proceeds to do so, in the absence of plaintiff and without notice, the plaintiff will not be bound by the estimate. But such estimate will not be affected by the inade- quacy of the amount, or that the usual means were not resorted to for ascertaining facts, if the umpire act hona fide, which is a fact to be determined by the jury.^ SECTION XIII. Relief in Equity from Decisions of Company's Engineers. 1. Contract referring work to engineer, engineer to be satisfied. 2. Bill for relief praying tliat plaintiff be permitted to go on, &c. 3. Bill sustained. Amendment alleging mistake in estimates. 4. Relief as to sufficiency of payments had only in equity. 5. Proof of fraud must be very clear. 6. Engineer a shareholder, not valid ob- jection. 7. Decision of engineer conclusive as to quality of work, but not as to quantity. 8. New contract condonation of old claims. 9. Account ordered after company had completed work. 10. Money penalties cannot be relieved against, unless for fraud. 11. Engineer's estimates not conclusive, unless so agreed. 12. Contractor entitled to full compensa- tion for work accepted by supple- mental contract. 13. Direction of umpire binding on con- tracting parties, and dispenses with certificate of full performance. § 117. 1. In consequence of the peculiar stringency of the terms of contracts for railway construction, applications for relief in equity have not been unfrequent. In one case,^ it was agreed 1 Ranger v. Great Western Railway Co., 1 Railw. Cas. 1; s. c. 13 Sim. 368. Where, by the contract, the work was to be done to the satisfaction of the engineer, and suit was brought without obtaining his judgment, it was held, that it could not be maintained. Parkes v. Great Western Railway Co., 3 Railw. Cas. 17. This case is also found in 3 Railw. Cas. 298, and in 5 II. L. Cas. 72, and in 27 Eng. Law & Eq. 35. It came before the House of Lords, on appeal for final determination just ten years after the decision in the Vice- Chancellor's court. The judgment was in the main affirmed, but in form re- versed, and sent back to the Court of Chancery, for an account according to the rights established by the final decision. The case deserves careful attention. It is regarded as questionable, how far a contract, vesting the property of [*418] § 117.] EQUITABLE RELIEF FROM DECISIONS OF ENGINEERS. 430 by *thc contract that every fortiiit^lit the (•nf]!;iii(.'C'i- of tlic coinj)aiiy sliould ascertain the value of the work done, accordinj^ to its the contractor in tlie company in the event of liis insolvency merely, could be maintained, as consistent with the English bankrupt and insolvent laws. Kouch V. (ireat Western Railway Co., 1 Q. B. 51; 8. c. 2 llailw. Cas. 50.'3. But this objection may be obviated by the company stipulatiii'^ for a lieu merely, —a right to use the tools and materials of the contractor in the com- pletion of the work, according to and in fulfilment of his contract. Hawthorn r. Newcastle-upon-Tyne Railway Co., 3 Q. B. 734, note a: s. c. 2 Railw. Cas. 299. It is said, by a very learned equity judge, Lord Rkdesdale, in O'Connor v. Spaight, 1 Sch. & L. 309, that where an account has become so complicated that a court of law would be incompetent to examine it at Nisi Prius, with all necessary accuracy, a court of equity will, on that ground alone, take cognizance of the case. But a court of equity will not ordinarily inter- fere in any such case, and especially when the party applying has been guilty of laches. Northeastern Railway Co. v. Martin, 2 Phil. Eng. Ch. 758. See also Taff-Vale Railway Co. v. Nixon, 1 H. L. Cas. Ill ; Foley i'. Hill, 2 H. L. Cas. 45, 4G. See also Nixon v. Taff-Vale Railway Co., 7 Hare, PJG. It is ques- tionable whether any such distinct ground of exclusive equity jurisdiction, in matters of account, as the complicated nature of the transactions, can be maintained, but there is little doubt that this would be regarded as an impor- tant consideration in guiding the discretion of that court, in assuming such jurisdiction, in any particular case pending in a court of law. But sometimes where the contractor claims the right to appropriate payments, made generally, to a different contract from that on which the company desires them to ap|>ly, it is necessary to draw the whole into a court of equity. Southeastern Railway Co. V. Brogden, 14 Jur. 795; s. c. 3 Macn. & G. 8. See on the general sub- ject, AVaring v. Manchester & Sheffield & Lincolnshire Railway Co., 7 Hare, 482. An important case on a contract for railway construction, finally determined in the national tribunal of last re.sort, on elaborate argument and great considera- tion, and involving most of the subjects considered in Ranger v. Great Western Railway Co., may be regarded, perhaps, as bearing something of the same re- lation to cases in this country on that subject that the English case does to cases of that kind in the English courts. This is the case of Philadelphia. Wilmington, & Baltimore Railroad Co. v. Howard, 13 How. 307; 8. c 1 Am. Raihv. Cas. 70. It was there decided, among other things, that in such con- tracts the covenant to finish the work by a certain time on the one j>art, and to pay monthly on the other part, are distinct and independent covenants; that the right of the company to annul the contract at any time, does not in- clude a right to forfeit the earnings of the other party for work done prior to the annulment; that a covenant to execute the work according t«i a schedido which says it is to be done according to the directions of the engineer, binds the C()m[>any to pay for work done according to his directions, although not strictly in conformity with a profile showing the original proximate estimates; that when the contract is to place the waste earth where ordered by the ensi- neer. it is the dutv of the engineer to provide a convenient place, ami if lie [•410J 440 CONSTRUCTION OF RAILWAYS. [PART IV, * quality and relative proportion to the whole work ; the con- tractor to receive eighty per centum, the remainder being reserved fails to do so the other party is entitled to damages; that where the contract authorizes the company to retain, until the completion of the contract, fifteen per cent of the earnings of the contractor, by way of indenmity from loss through any failure of the contractor to perform, it is not to be regarded as a forfeiture ; that where the contractor is delayed in the progress of the work by an injunction, he is entitled to no damages, unless the jury find that the company did not use reasonable diligence in obtaining a dissolution of the in- junction ; that if a railway company, having the power of annulling a contract for construction, " when, in their opinion, it is not in due progress of execu- tion," or the contractor is " irregular or negligent," he is entitled to recover damages for any loss of profit he may have sustained through an oppressive use of that power. In Herrick v. Vermont Central Railroad Co., 27 Vt. 673; s. c 1 Redf. Am. Railw. Cas. 305, it was held, among other things, that a stipulation in a con- tract for construction, that " the engineer shall be the sole judge of the quality and quantity of the work, and from his decision there shall be no appeal," is binding and constitutes the engineer an arbitrator or umpire; that such a stipulation imposes on the company the duty of employing for such engineer a competent, upright, and trustworthy person, and of seeing that he performs the service expected of him at a proper time and in a proper manner; that the estimates in such case may be made by the assistant engineer; that where payment for the work depends as to its amount on the engineer's estimates, and the employing party performs its duty in reference to the employment of a suitable engineer, the obligation to pay will not arise until such estimates are made ; but that if, through the neglect or fault of the engineer, or of the party who employs him, no estimates are made, the other party can probably recover at law for the work performed, without any engineer's estimate of it; that a contract providing for monthly estimates of the contractor's work ac- cording to which he is to be paid, imports an accurate and final, not an approx- imate estimate for each month; and that a court of equity has jurisdiction of a claim to be paid for a larger amount of work done under such a contract than was estimated by the engineer, where the underestimate was occasioned either by mistake or fraud. In a contract for railway construction, where the parties by a subsequent contract stipulated for the completing of the work by a day named, for addi- tional compensation, and that the contractor should pay a certain sum for each day's delay beyond the time specified, the company to furnish certain mate- rials to complete the same by the day specified, the work was not finished for twenty- four days after the time specified, and the materials were not furnished to complete it sooner, the court held the covenants independent of each other, and the contractor bound to deduct the stipulated forfeiture, notwith- standing the default of the company. Mcintosh v. Midland Counties Railway Co., 14 M. & W. 548; s. c. 3 Railw. Cas. 780. The rule of law that cove- nants, which are not the entire consideration for each other, will ordinarily be [*420J § 117.] KQUITAULE RELIEF FROM DECISIONS OF ENGINEERS. Ml to * enforce the comi)le(ion of the works: That if tlic engineer should not be satisfied witli the works, after notice given to the contractor, * and his default in complying for seven days to take possession of the works, thereupon the plant and materials of the contractor, * and all the work done and not paid for, and the reserved fund to be forfeited to the company. * 2. The company having taken the forfeiture under the con- tract, the plaintiff filed his bill, insisting that the engineer had underestimated the work .£30,000, and that no forfeiture had been incurred by him, and praying that the company might elect to permit the plaintiff to complete the works, or that the contract might be considered at an end, and in either case an account between the parties might be taken.. * 3. The Lord Chancellor held, that the facts alleged do entitle the plaintiff to relief in equity. The plaintitf amended his bill, and alleged that the most expensive masonry had been paid for only at the price of inferior work, and claimed large sums in that respect, and also alleged fraud against the company, in the con- tracts and in the certificates. 4. It was held, that the investigations as to the sufficiency of the payments made could only be made in a court of c(|uity. 5. That the evidence in support of an allegation of fraud must be very clear, and that it is not enough to show that the state- ments of the company as to the nature of the work gave imjior- fect information, but it must also be shown that the contractor could not with reasonable diligence have acquired all necessary information. 6. The fact of the engineer being a shareholder in the company is not enough to avoid his decision, as the contractor might have ascertained this fact. The character of an engineer is of more value to him than his interest as a shareholder, 7. That the decision of the engineer as to the quality of the work is conclusive, but not as to the quantity. The question of measurement and calculation will be entertained and decided by a court of equity. 8. That where the parties have entered into now contract.-^, it construed as independent, unless there is something in the transaction whioh shows that the parties regarded thera as dependent, is here carried further than reason and justice would seem to justify. The case would hardly be followed in this country. [*421-*425] 442 CONSTRUCTION OP RAILWAYS. [PART IV. will be considered a condonation of old injuries, unless, at the time of making the new contract, the plaintiff insisted upon his adverse claims, the parties being at liberty to proceed at law. 9. After the works were completed by the company the court ordered an account taken, directing special inquiries as to the amount and kind of work done. 10. It was held that stipulations in regard to penalties in these contracts are binding upon the parties, and no relief against them will be afforded in equity unless fraud be shown. And that, where it had been agreed that a written contract should form part of an unwritten one, this will include stipulations as to for- feiture.i 11. In one case in Pennsylvania ^ it was decided that the esti- mates and decisions of the engineer of a railway company arc conclusive, in disputes with contractors, only where such is the positive stipulation of the contract ; that in every other case the * correctness of such estimates is to be tested by evidence, and in an action against the company by a contractor to recover a balance claimed to be due for work, it is correct to instruct the jury to rely on the engineer's final estimates unless shown to be erroneous. 12. In such a contract, where a supplemental contract was made by the company, assuming the work, and agreeing to pay the contractor for what work he had done, and reserving no claim for damages, either on account of the suspension of the work or its not being completed, it was held that the contractor was enti- tled to compensation according to the stipulations of the supple- mental contract, without any deductions on account of suspension of or not completing the work, and that the work done and agreed to be compensated must be estimated at what it was worth, and the contractor's claim could not be restricted to what would be com- ing to him under the final estimates of the engineer ; nor could the company claim any deductions on account of loss incurred in completing the work.^ 13. And where the plaintiff stipulated to perform the work of shifting the track of a railway, under the direction and to the satisfaction of the city surveyor, whose certificate that the work had been so performed was to entitle him to payment, it was held, 2 Memphis Kailroad Co. v. Wilcox, 48 Penn. St. 161. [*426J ^ 118.] FRAUDS IN CONTRACTH FOR CONRTRUCTTON. 413 that where the surveyor directed that the work should not be done beyond a certain jjoint, that was a valid excuse for not obtaining his certificate of performance beyond that j)oint.^ SECTION XIV. Frauds in Contracts for Construction. 1. Relievable in equity on general prin- ciples. 2. Statement of leading cases upon this subject. 3. No definite contract closed, no relief granted. § 118, 1. It is well known that courts of equity will relieve against fraud practised by the agents of railways, in building contracts, the same as in other cases of fraud. But the imi)or- tance and peculiar nature of these contracts will justify a brief note of the cases decided upon the subject. * 2. The most important case in the English books upon this subject, is that of Ranger v. The Great Western Railway, which we have just referred to upon another point.^ And the statement *of that case, in the House of Lords, by the Lord Chancellor Cranworth, is a better commentary than elsewhere exists, * upon this subject. The general subject of fraud in railway companies, in regard to building contracts, is somewhat considered in a late case in the Supreme Court of Vermont.^ * 3. But it is clear that where no binding and complete con- tract has been entered into by the company, although the tenders made by a contractor have been accepted by their engineer, authorized to act on their behalf, and the contractor has incurred * expense upon the faith of having the contract, in preparation to I'uUil it, there being certain alternatives in the tender, which had not been decided upon, and the whole thing being given up and no specific contract made under the seal of the company, equity ^ Devlin v. Second Avenue Railroad Co., 44 Barb. 81. ^ 1 Kailw. Cas. 1 ; s. c. 3 Railw. Ca.s. 298. 8. c. on appeal to House of Lords, 27 Eng. L. & Eq. 35, 41; s. c. 13 Sim. 368; 5 H. L. Cas. 72. * Ilerrick v. Vermont Central Railroad Co., 27 Vt. G73; s. c. 1 Redf. Am. Railw. Cas. 305. [*427-*431J 444 CONSTRUCTION OP RAILWAYS. [part IV. can grant no relief.^ For if there was no contract equity could not create one, and if there was a valid contract the remedy at law is adequate. SECTION XV. Engineer's Estimate wanting through Fault of Company. 1. Relief in equity where estimate of en- gineer is wanting tlirough fault of company. 2. Grounds of equitable interference. 3. Contract terminated other porty en- joined from interference. 4. Stipulation requiring engineer's esti- mate, not void. 5. Not the same as an agreement, that all disputes shall be decided by arbi- tration. 6. Engineer's estimate proper condition precedent. 7. Same as sale of goods at the valua- tion of third party. 8. Result of all the English cases, that the question of damages only prop- erly referable to the engineer. 9. Rule in this respect different in this country. § 119. 1. Where, by the terms of a railway construction con- tract, executed under the seals of the parties, the work is to be paid for, from time to time, upon the estimate and approval of the company's principal engineer, and the amount and quality of the work finally to be determined in the same mode, no action, either at law or in equity, can be maintained until such estimate and approval is obtained, unless it is prevented by the fault of the company. But where no such engineer is furnished by the company, or where through their connivance he neglects to act, the contractor is not without remedy, in equity.^ (a) Lord Chan- cellor Cottenham, in affirming this decision,^ says : — 2. " It is true that the specification and contract constitute a relationship between the plaintiffs and the defendants, which, if correctly acted upon, would have given to the plaintiffs a legal 8 Jackson v. North Wales Railway Co., 1 Hall & T. 75; s. c. 6 Railw. Cas. 112. 1 Mcintosh I'. Great Western Railway Co., 2 De G. & S. 758. This is the decision of the Vice Chancellor, which came before the Lord Chancellor, with the result stated in the text. ■^ iMcIutosh V. Great Western Railway Co., 2 Hall & T. 250; s. c. 2 Macn. & G. 74. [*431] (a) See supra, % 116, note (a). i> 119.] ENGINEER'S ESTIMATE. 41') * right, and a legal right only, to the honcfits they claimed by this bill. But if the facts stated in the bill arc such as, if true, de- prive the plaintiffs of the means of enforcing such legal rights, ind if those facts have arisen from the conduct of the defendants, or of their agent so recognized by the specification and contract, and now used for the fraudulent purpose of defeating the plain- tiffs' claim altogether, the defendants cannot resist the plaintiffs* claim in equity upon the ground that their remedy is only at law ; nor is it any answer to show that, if the plaintiffs cannot get at law what they contracted for, they may obtain compensation in damages. It is no answer to a bill for specific performance that the plaintiffs may bring an action for damages for a breach of the contract, or, in a proper case of a bill for discovery of some specific chattels, that damages may be recovered in trover, — the language of pleading is not that the plaintiffs have no remedy, but no adequate remedy save in a court of equity. It is therefore no answer in the present case for the defendants to urge, that if they or their agent have been neglectful of what they undertook to do, by which the plaintiffs have suffered, they may be liable in damage to the plaintiffs. They contracted for a specific thing, and are not bound to take that, or something in lieu of it, if such other thing be not what this court considers as a fair equivalent. I do not therefore consider that any answer is given to the plain- tiffs' riglit to file a bill in this court by showing that the ground upon which they seek their right so to do, namely, the being barred of their legal remedy by the conduct of the defendants, may subject them to damages at law." 3. And where disputes arose between the contractor and the company, each charging default upon the other's part, and claim- ing the right to occupy the works, and the workmen of both com- ing in collision upon the line of the road, and the completion and opening of the road being delayed in consequence, the court, on the application of the company, restrained the contractor from continuing on the line or interfering with the operations of the company, but directed an account of what was due the contractor, without regard to the former certificates of the company's engi- neer, and an issue to try Avhethcr the company were justified in removing the contractor, reserving all claims for loss and com- pensation till the final hearing.^ ' East Lancashire Railway Co. r. Hattersley, S Hare, 72. [*432] 44G CONSTRUCTION OF RAILWAYS. [PART IV. * And in a somewhat recent case,^ by the terms of the contract it was provided, tliat if the contractor made default the company might themselves complete the line, and that the plant, &c., upon the line belonging to the contractor should become the property of the company, and be set off against the delfts, if any, due from him to the companj^, and that the contractor should not hinder the company from using the same. Default having been made by the contractor, the company completed the line and were pro- ceeding to remove the plant, &c. An arbitration was pending to decide the question of amount between the contractor and the company. It was held that the company must be enjoined from removing the plant before award given. Lord RoMiLLY, M. R., here suggests that the company have no right to take the plant until it appears that the contractor is in- debted to them ; but we should have said that under such a con- tract the fair construction is that the company may take and use the plant in completing the line, making themselves debtor to the contractor for the same. The purpose of such a stipulation presumptively is, that the work may not be interrupted by the change of hands from the contractor to the company. But after the road is completed, so far as the contract extended, and the company had made no use of the plant, the view suggested by his lordship seems entirely just and reasonable. 4. The question of the right to recover at all at law, without procuring the engineer's estimate, where that is made a condi- tion precedent in the contract, has been considerably discussed in the English courts, and especially in the important case before the House of Lords, in July, 185G ; ^ and the result arrived at seems to be, that such a clause in a contract, in regard to the basis of recovery, is not equivalent to a stipulation that no action shall be brought, or that the case shall not come before the courts of law or equity, which has long since been determined to be repug- nant and void.^ (6) * Garrett v. Salisbury & Dorset Junction Railway Co., Law Rep. 2 Eq. 358; s. c. 12 Jur. N. s. 49.5. 5 Scott V. Avery, 5 H. L. Cas. 811 ; s. c. 3(5 Eng. L. & Eq. 1. 6 Thompson v. Charnock, 8 T. R. 139. See also Tattersall v. Groote, 2 B. & P. 131. (b) In Kistner v. Indianapolis & Eng. Railw. Cas. 3U, it was held St. Louis Railroad Co., 12 Am. & that it was the duty of the company [*433] § 119.] ENGINEER'S ESTIMATE. 417 5. The distinction is somewhat refined, and difTicult of exact definition, but it seems to us not altogetlier witliout foumlatiun. A stipuhition, that no action shall ever be brought uj)on a eon- tract, *or, what is equivalent, that all disputes under it shall be referred to arbitration, is a repugnancy, which if carried out liti- erally must render the contract itself, as a mode of legal redress, wholly idle. And it is only in this view that contracts are to be considered by the courts. 6. But a stipulation that the liability under a contract or cove- nant shall not accrue, except upon the basis of certain previously ascertained facts, where the contract contains provisions for ascer- taining them, by the action of either party, without the concurrence of the other, is no more than a limitation upon the right of action, as that no action shall be brought until after one year, or unless commenced within six months,'^ which have been held valid. And even where the concurrence of both parties is requisite and the {)crformancc of the condition fails through the refusal of one, it probably is the same as to the other as if performed. 7. Hence a contract to purchase goods at the valuation of N. and M., cannot be made the foundation of an action, without obtain- ing the valuation stipulated, or showing that the other pai-ty hin- dered it.^ And in some cases it has been held, that if the obtaining of the estimate is withheld or defeated by the fraud of the other party, no action at law will lie, the only remedy being by a special action for the fraud, or in equity, perhaps.^ '' Wilson V. iEtna Insurance Co., 27 Vt. 99, and cases there cited. 8 Thuinell v. Balbirnie, 2 M. & W. 786; Mihies v. Gery, U Ves. 400. ^ Milner r. Field, 5 Exch. 829. But in a later case in the same court it it) said that the award must be obtained, or it must be .shown that it is no longer practicable to obtain it. Brown v. Overbury, 11 Exch. 715; s. c. -H Eng. L. & Eq. GIG. This rule, with tlic (lualification'that the defendant by his own act or refusal has rendered the performance of the condition impracticable, is now, in this country certainly, held such an excuse as will enable the party to sue in a court of law. United States v. Robeson, 9 Pet. 319, 320. And in Snodgrass v. Gavit, 28 Penn. St. 221, Mr. Justice Woodwako assumes it ns the unquestionable rule, in that state, that " where parties stipulate that dis- putes, whetlier actual or prospective, shall be submitted to the arbitrament <>f a particular individual, or tribunal, they are bound by their contract, and cannot seek redress elsewhere." to see that the engineer made his esti- action miglit be maintained for the mates, and that in default thereof an sum reallv duo. [•434] 448 CONSTRUCTION OF RAILWAYS. [PART IV. 8. This subject is very clal)orately discussed by the judges be- fore the House of Lords, in the case of Scott v. Avery ,^ and it is remarkable how wide a difference of opinion was found to exist, upon a question which might seem at first blush so simple. Of the nine judges who gave formal opinions, three were opposed to allowing any force whatever to such a stipulation. And of the * other six, four held that only the question of damages can properly be made to depend, as a condition precedent, upon the award of an arbitrator, while two held that the award may be made to include all matters of dispute growing out of the contract, which it seems to us must be regarded as equivalent to saying that no action at law or in equity shall be brought to determine any controversy growing out of the contract, which all the judges agree is a void stipulation. We therefore feel compelled to adopt the view that upon principle, and the fair balance of authority, such a stipula- tion, in regard to estimating labor or damages, under a contract for construction, is valid, and may be treated as a condition prece- dent, but that beyond that, the present inclination of the English courts is to hold that it is repugnant to sound policy, and subver- sive of the legal obligation of the contract, as being equivalent to a stipulation that no action at law shall be brought upon the contract, but only upon the award, if not paid. 9. But the balance of authority in this country seems to be in favor of allowing such a condition precedent, in this class of con- tracts, to extend to the quality of the work, as well as the quan- tity, and to the question, whether the work is progressing with sufficient rapidity, and whether the company on that account arc justified in putting an end to the contract.^ It seems reasonable to us, on many grounds, that contracts of this magnitude and character should receive a somewhat different interpretation in this respect from that which is applied to the ordinary commercial transactions of the country, as has been held in regard to pecu- niary penalties.^^ We should not therefore feel justified in in- timating anv desire to see the American cases on this subject qualified. ^0 Supra, §§ 116, 117. Under the English statute, the Railway Arbitration Act, agreements between companies to refer all disputes between them to arbitration are peremptorily enforced by the courts. Llannelly Railway & Dock Co. V. London & Isorthwestern Railway Co., 20 W. R. 898. [*435] 120.] CONTUACTS FOR MATEIUALS AND MACIIINEUY. 41U SECTION XVI. Contracts for Materials and 3Iac1iuiery. 1. Manufacturer of niauliinery, etc., not liable for latent defect in materials. 2. Contract for railway sleepers, terms stated. 3. Construction of such contract. Party may waive stipulation in con- tract by acquiescence. Company liable for materials accepted and used. § 120. 1. In a contract for fire engines, it was stijmlatcd tliat the engines and tender should be subject to the performance of * one thousand miles, with proper loads, the manufacturers to be liable for any breakage which may occur through defect of ma- terials or workmanship, but not where it occurs from collision, neglect, or mismanagement of the company's servants, or any other cause, except the two first named. The trial to take i)lace within one month from the day on whicli any engine is reported ready to start, in default of which the manufacturers to be re- leased from all responsibility. It was specially agreed the lire- boxes should be of copper, 7-lOths of an inch thick. One of the engines, so supplied, performed the thousand miles according to the contract; but some months after the fire-box burst, when it was discovered that the copper was reduced to 3-lGths of an inch in thickness, it being conceded it was originally of the thickness required by the contract. In an action for the price of the engine, which by the contract was to be paid upon the satisfactory com- pletion of the trial, it was held the defendants could not give evi- dence of such defect in the copper, no fraud being alleged, and that, by the terms of the contract, the three months' trial having been satisfactory, released the manufacturers from all responsi- bility in respect of bad materials and workmanship.^ 2. In a contract for railway sleei)ers,- it was stipulated that the plaintijffs below should supply the defendants below with 350,000 sleepers, the contract before having recited that the 1 Sharp V. Great Western Railway Co., 2 Railw. Gas. 722; s. c 9 M. & AV. 7. - Great Xorthern Railway Co. r. Harrison, 14 Eng. L. ^: Kq. 169; 12 C B. 576; s. c. 8 Eng, L. & Eq. -IGO; 11 C. 13. 615. VOL. I. — 29 [*43G] 450 CONSTRUCTION OF RAILWAYS. [PART IV. defendants were desirous of being supplied with that number of railway sleepers. The contract specified that the plaintiffs were Avilling to supply them according to a specification and tender, which stated that the number of sleepers required was 350,000, that one-half would have to be delivered in 1847, and the remain- der by midsummer, 1848 ; and the contract also contained a cove- nant to supply the sleepers within the time specified, " as, and when, and in such quantities, and in such manner," as the engineer of the'company by orders in writing, " from time to time, or at any time within the time limited by the specification, should require." The deed also contained a provision, that the engineer might vary the time of delivery ; that the company should retain in their hands X 2,000 as security for the performance of the contract, and should pay it over within two months after the sleepers had been deliv- ered ; and * that the contract might be determined upon the default or bankruptcy of the plaintiffs. 3. It was held that there was an implied covenant on the part of the company to take the whole number of 350,000 sleepers ; that an order by the engineer was a condition precedent to any delivery of the sleepers by the plaintiffs ; that the company were bound to cause such order to be given within the time limited by the specification ; that although the engineer had power to alter the time for the delivery of the sleepers, such power was to be exercised within the period limited by the specification ; that the engineer, as to matters in which he had a discretion, e. g., as to varying the time of delivery of the sleepers, stood in the posi- tion of ar])itrator between the parties, but as to giving the order for the delivery he was a mere agent of the company ; that the only legitimate rule of construction is to ascertain the mean- ing from the language used in the instrument, coupled with such facts as are admissible in evidence, to aid its explanation. — Per Parke, B. 4. It has been held, also, in a contract with a railway company to deliver iron, " near the months of July and August," and the delivery continuing till the 25th of October, and the company not objecting to receive it, that they were bound by the terms of the contract, one of which was that they were to give their notes for each parcel of iron as it was shipped.^ ^ Bailey v. Western Vermont Railroad Co., 18 Barb. 112. It was also held, here, that the refusal of the company to give notes as stipulated, ex- [*437] § 1^1-] PAYMENTS IN STOCK OF TUE COMPANY. 451 5. So, too, under the EnL^lisli statute,'* wliicli provides tliat tlie directors of a railway company may contract Ijy parol, on behalf of the company, where private persons may make a valid parol contract, it was held, where the agent of the company agreed by parol with the plaintiff to purchase of him a quantity of railway sleepers upon certain terms, the sleepers being delivered and used by the company, that they were liable.^ * SECTION XVII. Contract to Pay in the Stock of the Company. 1. Breach of such contract generally enti- tles the party to recover tlie nomi- nal value of stock. 2. But if tiie party have not strictly per- formed, he cancecover only market value. 3. Casli portion overpaid will only re- duce stock portion dollar fur dollar. n. 2. Lawful incumbrance on com- pany's property will not excuse cou- tractor from accepting stock. § 121. 1. In many contracts for construction, the whole or a portion of the price is stipulated to be paid in the stock of the com- pany, as the work progresses, at certain stages, or when it is com- pleted. The time, place, and mode of payment in such cases will be the same ordinarily as in other contracts for payment of stock. If the company refuse or neglect to deliver the stock or the proper certificates when it becomes due, upon proper request or oppor- tunity, they are generally liable, it is considered, as in other cases of failure to perform contracts, for a certain amount or value, in collateral articles expressed in currency.^ cused the plaintiff from delivering or tendering the remainder of the iron, until the company should tender notes, and entitled plaintiff to sue presently. < Statute 8 & 9 Vict. c. IG. * Paulding v. London & Northwestern Railway Co., 8 Exoh. 807; 8. c. 22 Eng. L. & Eq. 500. Tlie contract was made by the engineer's clerk, who was also clerk of the company, but there was evidence of the assent of the com- mittee. Lowe V. London & Northwestern Railway Co., 18 Q. B. 032; s. c U Eng. L. & Eq. 18. ^ Moore v. Hudson River Railroad Co., 12 Barb. 150. Here, where a portion of the price of construction was payable in stock, at par, within thirty days after the completion of the contract, it was held that the company was not bound to make any tender of the stock, as in case of contracts for specific articles, [•438] 452 CONSTRUCTION OF RAILWAYS. [PART IV. 2. But it was held, that where the plaintijEf recovered a balance due on equitable grounds, and not on the ground of strict and full performance of the contract, he was precluded on like equita- ble grounds from recovering more for the stock portion of the contract than its market value at the commencement of the action.^ but that it was a payment in depreciated currency, and no tender was neces- sary. In In re Alexandra Park Co., 12 Jur. n. s. 482, where the contractor stipulated to accept a portion of his pay in stock, at the election of the com- pany, it was held that he was not bound by such an election after the company was ordered to be wound up as insolvent, as the shares thereby became extinguished. 2 Barker v. Troy & Rutland Railroad Co., 27 Vt. 76G. In this case tlie court say: " If the defendants have, upon reasonable request, declined jniying the amount due, in their stock, as stipulated, it would seem but reasonable they should pay the amount in money." See supra, § 38. But if the con- tractor perform extra work, he is entitled to recover for that, in money, on an implied promise, although by his contract he was to accept part of his pay in stock for all work done under the contract. Childs v. Somerset & Kennebec Railroad Co., 20 Law Rep. 561. In Cleveland & Pittsburg Railroad Co. v. Kelley, 5 Ohio St. 180, it is held, that where one fourth of the amount due the contractors is to be taken in the stock of the company, and the company refuses to deliver the stock on request, it is liable only for the market value of the stock at the time it should have been delivered. The court professes to base its opinion on the ground that in contracts of this character there is not understood to be any election reserved by the company to pay either in stock or in money, but that it is an absolute undertaking to deliver so much stock as shall, at its par value, be equal to one fourth the amount due tlie contractor. It is not clear how this relieves the question from the apparent violation of principle, in allowing the company to refuse to give certificates of its own stock, which it has contracted to do, and at the same time pay less than its par value. It is, in ordinary cases, equitable, no doubt, and always where the refusal is on the ground that nothing is due the contractor. See also Boody v. Rutland & Burlington Railroad Co., 24 Vt. 660, where it was held that the company having given its creditors a mortgage on its road, after the contract with the plaintiff, did not excuse him from accepting the stipulated proportion of the payments in stock. Nor can the contractors, in such case, refuse to receive the stock, because the legislature, in the mean time, has altered the charter of the company, so as to increase the capital stock and debt of the company; nor because the company has voted not to pay interest on the stock in money, as it had before done, it not appearing that the value of the stock has been affected by either. Moore v. Hudson River Rail- road Co., 12 Barb. 156. And where a company, in settlement with a con- tractor, agreed to pay him a certain amount, in stock or the bonds of the company, at his election, the company retaining the same as security for cer- tain liabilities on account of the contractor, and gave the contractor a certifi- cate of such stock, with an agreement endorsed, to exchange it for bonds, at [*438] § ^22.j TIME AND MODE OF PAYMENT. 4o3 * 3. So, too, where the work is to be paid partly in stock and partly in money, if the money i)art be overjiaid, even by doinjr a • portion of the work, which the jjarty reserved the ridit to do in order to hasten the Avork, it will only reduce the stock payment • dollar for dollar, and not according- to the market value of the stock at the time.^ SECTION XVIII. Time and 3Iode of Payment. 1. No time specified, payment due only when work completed. 2. Stock payments must ordinarily be demanded. 3. But if company pay monthly, such usage qualifies contract. 4. Contract to build wall by cubic yard, implies measurement in the wall. § 122. 1. Where no time of payment is specified in terms in the written contract between the parties for the construction of a por- tion of a railway, it was held, that lookinu" to the contract alone the contractor could not call for payment either of the cash or stock portion of the contract, until a complete performance of the contract on his part.^ Or, upon the most favorable construction, until some distinct portion of the work, for which the contract li.xcd a specific price, was accomplished.^ 2. In regard to the stock portion of the payments, a special demand was necessary before the contractor could maintain an action for it ^ liis election, and the certificates were then returned to them, as their indemnity, it was held that the company was bound to deliver the bonds, notwithstand- ing the treasurer had entered the shares in the books of tlie company as the property of the contractor, and they had in consequence been .sold on execution against him. Jones v. Portsmouth & Concord Railroad Co., :V2 N. II. '^\{. A contractor who agrees to take a portion of his pay in thi'l>ondsof the company, has no such interest in any question, in regard to their validity, as will j>re- vent a court of equity from enjoining those of a county, which liad been de- livered to the company without a proper compliance with the conditions of the statute under wliich the subscription was made, the contractor liaving had knowledge of the facts from (he first. Mercer County v. Pittsburgh & Erie Kailroad Co., 27 Penn. St. 3^0. ^ Jones V. Chamberlain, :'.0 Vt. lOH. 1 Boodv r. Uullaud l^c Burlin-ton Kailroad Co.. 21 Vt. CfiO. [♦430-M41] 454 CONSTRUCTION OP RAILWAYS. [PART IV. * 3. But where it appeared that the company were accustomed to make monthly payments to their contractors, upon the estimates of the engineer, at the end of eacli month, and that they had so dealt with the plaintiff, it was held that this must be considered the rule of payment under the contract, established by mutual consent and binding upon the parties.^ 4. A contract to build " riprap " wall for fifty cents a cubic yard in the absence of proof of any general usage or uniform custom which could control the mode of measurement, was held to imply payment by the cubic yard after the wall was constructed.^ (a) SECTION XIX. Remedy on Contracts for Railway Construction. 1. Kecovery on general counts. | 2. Amount and proof governed by contract. § 123. 1. It is a familiar principle of law applicable to con- tracts for the performance of work and labor, that if the work is done so that nothing more remains but payment, there is no ne- cessity of declaring specially upon the contract, but the recovery may be had under the general counts ; and it will make no differ- ence in this respect that it was not done within the time pre- scribed by the contract, if the work has been accepted by the other party, or the time for performance extended by such party, or the work has been done upon some permanent property of the other party, as in the case of building a railway.^ (a) 2. But ordinarily the contract will govern as to price and other incidents, so far as it can be traced. But where the party for whom the labor is performed wilfully hinders and obstructs the progress of the work, it has been held he was liable, as upon a quantum meruit} But in such case the party must prove the per- 2 Wood V. Vermont Central Railroad Co., 24 Yt. 608. 1 Merrill v. Ithaca & Owego Railroad Co., 16 Wend. 586; s. c. 2 Am. Railw. Cas. 421. (a) See Fish v. Wolfe, 50 Iowa, 636. v. San Paulo Railway Co., Law Rep. (a) What is a sufficient pleading of 8 Ch. Ap. 597; Clark v. White, 59 the performance of conditions. Sharpe Ind. 435. [*442] §123a.] MECHANIC'S LIKX. 4o;j formancc of the labor, by sucli proof as would Ijc competent in an action on the special contract, and cannot treat the dealing as if it had been matter of account from the hrst.^ ♦SECTION XX. Mechanic's Lien. 1, 2. Such lien cannot exist in regard to a railway. (a) Matter now generally regulated by statutes giving liens. § 123 a. 1. It has been considered that although a jmblic rail- way may come within the literal import of the terms used in a statute, to secure material-men and laborers, by what is denomi- nated a mechanic's lien upon "buildings or other improve- ments," yet that the public have such an interest in jjublic works of this character, that it cannot reasonably be presumed that such terms were intended to include the bridges and culverts upon the line of a public railway.^ (a) ^ Dunn V. North Mis.souri Railroad Co., 24 ]\Io. 403. See McAulay r. Western Vermont Railroad Co., 33 Vt. 311; s. c. 1 Redf. Am. Railw. Cas. 245. (a) To like effect are Graham i\ Mount Sterling CoalroadCo., 14 Hu.sh, 425; Rutherfoordy. Cincinnati & Ports- mouth Railroad Co., 35 Ohio St. 559, and other cases. But contra, Botsford V. New Haven, Middletown, & Willi- mantic Railroad Co., 41 Conn. 4.")4. And the matter is now regulated in many of the states by statute, under which sub-contractors, laborers, &c. have a lien. For the persons for ■whom, and the circumstances under which liens on such property exist, and for the proceedings necessary under tlie various statutes to perfect and enforce them, see the statutes. But as to limitations, see Arbuckle i'. Illinois Midland Railway Co., 81 Til. 429; Cherry v. North & South Rail- road Co., G5 Ga. G33. As to priori- ties between such lions, other incum- brances, subsequent purchasers, &c., see Removal Ca.ses, 100 U. S. 457; Fox V. Seal, 22 Wal. 424; Brooks/-. Rail- way Co., 101 U. S. 443 ; Pear r. Bur- lington, Cedar Rapids, & ^linncsota Railway Co., 48 Iowa, G19; Sliamokin Valley & Pottsville Railroad Co. r. :Malonc, 85 Penn. St. 25; Coe v. New Jersey Midland Railway Co., 31 N. J. Eq. 105; Tommey t?. Spartanburg & Asheville Railroad Co , 7 Fed. Rep. 429; Tyrone & Clearfield Railway Co. V. Jones, 79 Penn. St. CD ; Woo*ls v. Pittsburg, Cincinnati, & St. Ix»uis Railway Co., 3 Am. & Eng. Railw. Cas. 525. As to registration, &c., for purposes of notice, see Delaware Rail- road Construction Co. v. Pavciii>ort & St. Paul Railway Co., 4(5 Iowa. 406 ; [M43] 456 CONSTRUCTION OP RAILWAYS. [part IV. 2. The language of Scott, J., shows the ground of the decision. " Althougli railway companies in some respects resemble private corporations, yet as they are organized for the public benefit, the state takes a deep interest in them, and regards them as matters of public concern. The establishment of this railway is regarded as a public work established by public authority, intended for the public use and benefit." The learned judge argues, that such a lien to be effectual must be liable to defeat the object of the work, and therefore, and as the legislature have provided a specific remedy for laborers, it is not to be supposed that a mechanic's lien also exists in regard to the structures on the works. SECTION XXI. Remedies on behalf of Laborers and Sub-contractors. 1. Sub-contractors not bound by stipula- tions of contractor. 2. Laborers on public works have a claim against the company. But a sub-contractor cannot maintain an action against the proprietor of the works, though his employe's may. § 123 b. 1. A sub-contractor who has completed his work to the acceptance of the engineers appointed to pass upon its suffi- ciency, is entitled to recover of the contractor the sum retained upon his * estimates, as security for the completion of the work, notwitlistanding any deficiency in the performance of the con- Morgan V. Chicago & Alton Railroad Co., 76 Mo. 161 ; Boston v. Chesapeake, & Ohio Railroad Co., 12 Am. & Eng. Railw. Cas. 263; Hale v. Burlington, Cedar Rapids, & Northern Railway Co., 13 Fed. Rep. 203; Sampson v. Buffalo, New York, & Philadelphia Railway Co., 13 I Inn, 280; Lyon v. New York & New England Railroad Co., 127 Mass. 101. As to liens of sub contractors, see Cairo & St. Louis Railroad Co. i'. Watson. 85 111. 531; Same r. Canble, 4 Brad. 133; Row- land V. Centreville Railroad Co., 11 Am. & Eng. Railw. Cas. 47. The [*444] sub-contractor, like the laborer, has no lien for more than is due his im- mediate employer. Lumbard r. Syra- cuse, Binghamton, & New York Rail- road Co., 55 N. Y. 491; Utter v. Crane, 37 Iowa, 631; Boltomley r. Port Huron & Noithwestern Railway Co., 44 Mich. 542. As to the neces- sity for a settlement of the claim which is the foundation of the lien, or of no- tice to the owner, see Brooks v. Rail- way Co., 101 U. S. 443; Bundy r. Keokuk & DesMoines Railroad Co.. 49 Iowa, 207; Railway Co.y. Cronin. 38 Ohio St. 122. §123('.] CONIITIONS IN CHARTER AND KLECTION. 4oT tractor, whereby he is himself unable to recover such deficiency of the company.^ 2. l>y statute in many of the states, the workmen upon a rail- way, although in the employment of the contractoi-, have a claim for any arrears of wages, not exceeding a certain jjerir^d, upon the company, and this provision has been held to extend equally to workmen employed by sub-contractors.^ (a) And the provisions of this statute, being only a matter of general j)olice, will be equally binding upon all railway companies, whether chartered before or after the passing of the statute.^ 3. But the sub-contractor himself cannot pass by his immediate employers and maintain an action against the principal proj)rietor of the work.-^ SECTION XXII. Conditions in Charter and Election. 1. Such conditions must be performed, I 2 Company bound by its election, waived, or extended. I § 123 c. 1. There have commonly been some limitations an- nexed to the exercise of the powers conferred upon railway com- 1 r.Iair V. Corby, 29 Mo. 480, 48G. - Grannalian v. Hannibal & St. Jcseph Railroad Co., 30 Mo. 51G. Sec also ]\IcCIuskoy r. Cromwell, U N. Y. 5!»3; Kent r. New York Central Rail- road Co., 12 N. Y. 628; Peters v. St. Louis & Iron Mountain Railroad Co., 23 Mo. 107. 8 Branin v. Connecticut & Passumpsic Rivers Railroad Co., 31 Vt. 214; Lake Erie, Wabash, & St. Louis Railroad Co. v. Eckler, 13 Ind 07. See Bos- well v. Townsend, 37 Barb. 2(Jo. (a) And so now in many of the Co., 55 X. Y. 101; Bottomley r. Port states they, as well as sub-contractors Huron & Northwestern Haihvay Co., in certain cases, have a lien by statute. 11 Mich. 542. Engineers held not to .\s to the grounds and incidents of such be laborers. Peck v. Rush, 10 Am. & liens, see supra, § 122. But the laborer, Eng. Railw. Cas. 612. And .see Penu- like the sub-contractor, has no rcMnedy sylvania & Delaware Railroad Co. v. against the company for more than is Leuffer, 81 Penn. St. 168. So of coii- due from the cotnpany to his immodi- tractors and sub-contractors. Ciiicago ate employer. Utter v. Crane, (!7 & Xortheastern Railroad Co. r. Stur- lowa, 631; Lumlvard v Syracu.se, gis, 44 Mich. 538. As to the rights Binghamton, & New York Railroad of laborers against the company under [•444] 458 CONSTRUCTION OP RAILWAYS. [PART IV, panics ; as, that the building of the road should be begun before some prescribed day, and ordinarily a certain amount of money expended, and the road completed and in operation within some other prescribed time. These conditions must of course be fairly and justly complied with, or else the time extended by the legis- lature, which may be implied from an additional grant of power, as well as from an express statute for that specific purpose.^ (a) / 2. As a general rule the practical construction which the com- pany give of its own charter, by the location and construction of its road, will be held binding upon the company. And where the company have an election or discretion as to the route on which it will build its road, its actual construction will be regarded as having exhausted such right, and it cannot thereafter adopt a new route, although coming within the terms of the charter as originally granted.^ 1 Foster v. Fitch, 36 Conn. 236. 2 Morris & Essex Railroad Co. v. Central Railroad Co., 2 Vroom, 205; Cleveland & Pittsburgh Railroad Co. v. Speer, 56 Penn. St. 325. the Mass. Statute of 1873, see Parker (a) Performance by a lessee held V. Massachusetts Railroad Co., 115 insufficient. /« re Brooklyn, Winfield, Mass. 580; Hart v. Boston, Revere & Newtown Railway Co., 19 Hun, Beach, & Lynn Railroad Co., 121 314. Mass. 510. [*444] § 124.] EXCESSIVE TOLLS, FAKE, AND FUEIGUT. 459 ♦CHAPTER XVI. EXCESSIVE TOLLS, FARE, AND FREIGHT. 1. English companies sometimes created for maintaining road only. 2. Where excessive tolls taken may be recovered back. 3. So also may excessive fare and freight. 4. Under English statute, packed parcels must be rated in mass. 5. Nature of railway traffic requires unity of management and control. 6. Tolls on railways almost unknown in this country. Fare and freigiit often limited. 7. Guaranty of certain profit on invest- ment lawful. 8. Restriction of freight to certain rate per ton extends to whole line. 9. Company, in suing for tolls due, need not describe tliem as sucii. 10. Mode of establisliing tariff rates, and requisite proof. 11. Provision in a charter for payment of a certain tonnage to tiie state only a mode of taxation. 12. Wiiere a company is allowed to take tolls on sections of its road, each section is a distinct work. 13. 14. Discussion of cases in New York in regard to the difference between fares taken in tlie cars and fares taken at the stations. 15. Fares fixed by statute are payable in legal tender notes. § 124. 1. By the English statutes, companies are created who own the railway, stations, &c., merely, and wlio are empowered to demand certain tolls of other persons, or companies, for the use of such road. 2. In such cases, if illegal tolls arc demanded and paid, the excess may be recovered back, as money had and received, to the use of the person paying it, upon the general principles of law applicable to the subject of tolls and the demand and receipt of excessive tolls.^ (a) Where the English statute ^ gave the com- pany the right, where any person should fail to pay the toll due 1 Fearnley v. IMorloy, 5 R. & C. 25. Soe also tliis subject very extensively examined in Centre Turnpike Co. r. Smith, 12 Vt. 212; in/rn, § 143. Tolls are a payment for pas.sing along the line of the railway, and .'should be received with reference to the number of carriages passing. Simpson v. Denison, 10 Hare, 51 ; s. c. 13 Eng. L. & Eq. 359. ^ Statute 8 & 9 Vict. c. 20, § 97. (a) What are tolls. McKee v. Grand Rapids Railway Co., 41 IMich. 274. [*445] 4G0 EXCESSIVE TOLLS, FARE, AND FREIGHT. [PART IV. upon any carriage, to detain and sell the same, it was held incum- bent upon the company first to demand the sum due for toll, and that this Avas a condition precedent to the right to sell under the statute.^ It was also considered here that a charge for transport- ing carriages back is not a toll, but something which may be com- pensated by special agreement between the parties ; and if it be demanded as part of the * toll, being an illegal claim as such, it vitiates the entire demand and renders it illegal. 3. And the same rule has been extended to the recovery of money overpaid upon an exorbitant and illegal demand of freight or fare by railways. And the recovery may be had, although the person paying it did not tender any specific sum as due, and al- though a portion of the overcharge was on account of what was claimed to be due another company.* 4. And under the English statutes, packed parcels of the same class are required to be rated in mass.^ 5. Most of the business upon public railways, in this country, and in England, at the present time, is almost of necessity trans- acted by the companies themselves. The very nature of the business seems to require absolute unity in the management and control of the traffic, and especially in this country, where a large proportion of the roads are operated upon a single track, requir- ing the utmost watchfulness and circumspection to avoid colli- sions. We suppose the idea of operating a railway with large traffic, in England, upon a single track, would be regarded as too glaring an absurdity to be seriously entertained, although they have some unimportant single track railways. But in this country it is rather the rule than the exception, and many of the conti- nental railways in Europe have only a single track. 3 Field r. Newport, Abergavenny, & Hereford Railway Co., 3 H. & N. 400. * Parker r. Bristol & Exeter Railway Co., 6 Exch. 702; s. c. 6 Railw. Cas. 776. See also Snowden r. Davis, 1 Taunt. 359; Atlee v. Backhouse, 3 M. & W. 633; and Spry v. Emperor, 6 M. & W. 639, where the general subject is discussed. In Parker r. Great Western Railway Co., 3 Railw. Cas. .563, the very point is decided. Crouch v. London & Northwestern Railway Co., 2 Car. & K. 789; Crouch v. Great Northern Railway Co., 25 Eng. L. & Eq. 449. 5 Parker r. Great Western Railway Co., 11 C. B. 545; s. c. 8 Eng. L. & Eq. 426. This subject of overcharge and the right to recover back the excess, is extensively discus.sed in this case, and in Edwards v. Great Western Rail- way Co., 11 C. B. 588; s. c. 8 Eng. L. & Eq. 447; Crouch v. Great Northern Railwav Co., 9 Exch. 556; s. c. 25 Eng. L. & Eq 449. [*446] §ll!l.] EXCESSIVE TOLLS, FAItE, AND I'UEKWIT. 4G1 0. The matter of tulls upon railways is a thing ahnost unkn^sing along the line of the railway. There was evidence that the fire was so caused, and that defendants' engines had no wire guard, or perforated plate, to pre- vent the escape of the sparks, although both were in use before that time. There was evidence that it was principally where the engines were overtasked that they were liable to emit sparks. His Lordship directed the jury that it lay upon the plaintiff to establish negligence; that they were to consider that the plaintiff might have saved all hazard by tiling his barn, and also whether the train was driven too fast. The plaintiff had a verdict, and the court sub- sequently refused a new trial. Taylor v. Southeastern Railway Co. was tried at same term, with similar proof and the same result. "NValf. Railw. 183, 181, and notes. See also Lackawanna & Bloomsburg Railway Co. v. Doak, 52 Penu. St. 379, where the same rule is adopted. * Vaughan v. Taff-Vale Railway Co., 3 H. & N. 743; 8. c 5 H. & N. 679; [•452] 470 LIABILITY FOR FIRES BY ENGINES. [PART V. jury trial, and his views seem to have been sustained by the Court of Exchequer, that the mere fact of the company using fire as a means of locomotion, from whicli occasional fires will be communi- cated, even with the utmost care to prevent it, made them respon- sible for damage caused thereby. But in the Exchequer Chamber the judges seem to have been agreed, that the legislature having legalized this mode of locomotion, it could not subject the com- pany, while pursuing a legal business in a legal mode, to damage thereby caused to others, unless through some degree of neglect. If the company resort to all known precautions against fire, they arc not liable. 5. But in this country it must be confessed the rule of the liability of railways for damage done by fire communicated by their engines, is more favorable to the companies than in England. It seems to have been assumed, in this country, that the business of railways being lawful, no presumption of negligence arises from the fact of fire being communicated by their engines.^ (6) * But s. c. 6 Jur. N. s. 899. See also, King v. Pease, 4 B. & Ad. 30, on the author- ity of which the preceding case was decided in Exchequer Chamber. In refer- ence to the decision in the Court of Exchequer, it was said in a previous edition of this book that it was going further than any just principle would allow, un- less the defendant's business was regarded as unlawful. Infra, pi. 11, 15, and note. The doctrine of the first two cases cited in this note is approved in Hammersmith Railway Co. v. Brand, Law Rep. 4 H. L. 171. The New York Court of Appeals, in Steinweg v. Erie Railway Co., 43 N. Y. 123, hold, that railway companies, as common carriers, are bound to have such vehicles and machinery for the transportation of goods as the improvements known to prac- tical men and tested by practical use may suggest, but not to take every pos- .sible precaution which the highest scientific skill might suggest, nor to adopt any mere speculative and untried improvement. ^ Rood V. New York & Erie Railway Co., 18 Barb. 80; Lyman v. Boston & Worcester Railroad Co., 4 Cush. 288; Burroughs r. Housatonic Railroad Co., 15 Conn. 124. In this case the court compares the injury to that of fire communicated by sparks from the chimney of a dwelling-house. Where the statute I'equires the company to show that the fire occurred " without any neg- ligence on their part," it is sufficient to show that its engines were properly con.structed, in good order, and had the usual apparatus for preventing the escape of sparks, and were managed by discreet persons. Baltimore & Sus- quehanna Railroad Co. v. Woodruff, 4 Md. 242. (b) To that effect are Philadelphia McCaig r. Erie Railway Co., 8 Hun, & Reading Railroad Co. v. Yerger, 73 599; Ruffner v. Cincinnati, Hamilton, Penn. St. 121; Toledo, Peoria, & War- & Dayton Railroad Co , 34 Ohio St. saw Railway Co. v. Parker, 73 111. 526; 96; Babcock v. Chicago & Northwest- [*453] § 125.] LIABILITY FOR FIRES BY ENGINES. 471 after other probable modes of accounting for the fire have been dis- proved, the uinis is on the company t(j prove that the fire was not communicak'd by the cn^-incs of their train passing at the time.*^ 6. In tliis country it has been held, that proof that sparks have upon other occasions been emitted and caused fires along the Hue of the road, is not admissible, either to show that defendants' engine caused the damage, or to rebut defendants' proof of care and diligence in using their engines.^ But the testimony seems to have been received in other cases.^ (er se. 2' 10. Company required to keep gates closed, liable to any party injured 28, by omission. 30, 11. Independently of statute, company not bound to fence. 31, 12. 17. Not liable for consequences of the proper use of its engines. 13. Questions of negligence ordinarily to be determined by jury. 33, «. (i) Questionsof contributory negli- gence, what constitutes. 31 14. But only where the testimony leaves the question doubtful. Actions may be maintained some- times, for remote consequences of negligence. •18. Especially where a statutory duty is neglected by company. Question of negligence is one for the jury- One who suffers an animal to go at large can recover only for gross neglect. Testimony of experts receivable as to management of engines. One who suffers cattle to go at large must take the risk. Company owes a primary duty to passengers, &c. In Maryland company liable unless for unavoidable accident. In Indiana common-law rule prevails- In Missouri, rule modified by statute. In California cattle may lawfully be suffered to go at large. 20. Various decisions in Illinois. Weight of evidence and of presump- tion. Company not liable except for negli- gence. Company must use all statutory and other precautions. Not competent to prove negligence of the samekimlon other occasion.*. Kule of damages in general, value of animal, &.c. § 126. 1. The decisions upon tlic subject of injuries to domestie animals by railways are very numerous, but may bo reduced to comparatively few principles. Where the owner of the animals is unable to show that as ag:ainst the railway they were jiroperly upon the track, or, in other words, that it was through the fault of the companv that they were enabled to come u})on the road, the [«464] 484 INJURIES TO DOMESTIC ANIMALS. [part company are not in general liable, unless, after they discovered the animals, they might, by the exercise of proper care and j)ru- dence, have prevented the injury, (a) * The fact of killing an (a) The question of what company will be liable, whether lessor or lessee, has been settled in some of the states by statute, as in Indiana, where the lessee, operating the road in its own name, is alone liable. Pittsburg, Cin- cinnati, & St. Louis Railway Co. v. Hunt, 71 111. 229. And in California, where the lessor is liable for want of fences. Fontaine v. Southern Pacific Railroad Co., 54 Cal. 6i5. And in Iowa, where both lessor and lessee are liable for want of cattle-guards. Downing v. Chicago, Rock Island, & Pacific Railroad Co., 43 Iowa, 96. And in Missouri, where the lessee oper- ating its trains with its own men is liable in double damages for want of fences. Farley v. St. Louis, Kansas City, & Northern Railway Co., 72 Mo. 338. And where, if a mere licensee is running a train, the owner of the road is liable for an accident, the result of a want of fence. Kansas City, Fort Scott, & Gulf Railroad Co. v. Ewing, 23 Kan. 273. In Indiana, by statute, the company is jointly and severally liable with contractors. Huey v. In- dianapolis & Yincennes Railroad Co., 4.5 Ind. 320. As to roads operated by trustees or receivers, see Kansas Pacific Railway Co. r. Wood, 24 Kan. 619; Union Trust Co. v. Kendall, 20 Kan. 515; Indianapolis, Cincinnati, & La- fayette Railroad Co. v. Ray, 51 Ind. 269. The liability of railroad companies for injuries to domestic animals is now fixed in numbers of the states by statute. So of practice in proceedings to enforce it. See infra, pi. 24, et xeq. In Alabama the company is liable whenever the injury results from the [*465] negligence of its servants; no dili- gence will excuse the company when the injury occurs at a public road- crossing, or at any regular stopping- place, or because of an obstruction, unless the requirements of the statute have been complied with; and, injury being shown, the burden is on the company to prove no negligence or a compliance with the statute. Mobile & Ohio Railroad Co. v. Williams, 53 Ala. 595; South & North Alabama Railroad Co. v. Thompson, 62 Ala. 494. But see Zeigler v. South & North Alabama Railroad Co. , 58 Ala. 594. The matter is regulated by statute in Colorado. See Atchison, Topeka, & Santa Fe Railroad Co. v. Lujan, 6 Col. 338. In Georgia the presumption of negligence is in all cases against the company. Georgia Railroad & Banking Co. v. Cox, 64 Ga. 619. In Iowa it is not necessary that the animal be actually struck, Kraus v. Burlington, Cedar Rapids, & Northern Railway Co., 55 Iowa, 338. And liability may exist though the ani- mal was running at large. Searles v. Milwaukee & St. Paul Railway Co., 35 Iowa, 490. What is " running at large." Hammond v. Chicago & North- western Railroad Co., 43 Iowa, 1G8; Welsh V. Chicago, Burlington, & Quincy Railroad Co., 53 Iowa, 632. In Kansas the matter has been regu- lated also, and the decisions on the liability of the company under the statute are numerous. See St. Joseph & Denver Railroad Co. v. Graver, 11 Kan. 302 Hojikins v. Kansas Pacific Railway Co., 18 Kan. 402; Atchison, Topeka, & Santa Fe Railroad Co. v. Edwards, 20 Kan. 531 , Same v. Jones, ^ 1-^] INJURIES TO DOMESTIC ANIMALS. 485 animal of value by the comjiaiiy's engines, is not prima facie evi- dence of negligence on llieir ]»art.^ (A) A distinction is here taken by the court between injui'ies to permanent jirojjcrty situ- ated along the line of the railway, as injury to buildings by (ires communicated by the conii)any's engines, and damage to cattle which are constantly changing place, there being more evidence of fault on the part of the company from the mere occurrence of the injury in the former than in the latter case.^ 1 Scott r. Wilmington & Raleigh Railroad Co., 4 Jones, N. C. 432. To render the company prima facie responsible for damage done to cattle, it muiit appear that they came upon the track tiirough defect of fences or cattle-guards, which as between the owner and the company it was the duty of the company to maintain. Cecil v. Pacific Railroad Co., 47 Mo. 21G; Bellfontaine Railroad Co. I'. Suman, '29 Ind. 40; Toledo Railroad Co. v. Wiokcry, 44 111. 70. A rail- way is bound to fence its track along the tow-path of a canal, abandoned as a thoroughfare. White Water Valley Railroad Co. v. Quick, 30 Ind. 384. 2 See supra, note 1, and also Indianapolis & Cincinnati Railroad Co. v. Caldwell, 9 Ind. 397. 3(5 Kan. 527. The statute of 1874 is constitutional. Atchison & Nebraska Railroad Co. v. Harper, 19 Kan. 529; and see Kansas Pacific Railway Co. r. Mower, 10 Kan. 573. For the bear- ing of the herd law on the matter, see Kansas Pacific Railway Co. v. Wig- gins, 24 Kan. 588; Same v. Landis, 24 Kan. 40G; Union Pacific Railway Co. r. Dyche, 28 Kan. 200. In Ten- nessee an alarm must be sounded, and the brakes applied, when an animal appears on the track.' Nashville & Chattanooga Railroad Co. v. Anthony, 1 Lea Tenn. 510. All requirements of the statute must be observed, if possible. East Tennessee, Virginia, & Georgia Railroad Co. v. Scales, 2 Lea Tenn. 088. Rut the engine need not be reversed, if to reverse would endan- ger lives on the train. Nashville & Chattanooga Railroad Co. r. Troxlee, 1 Li'ii Tenn. 520. That to reverse would injure machinery, is no excuse. East Tennessee, Virginia, & C.oorgia Railroad Co. v. Selcer, 7 Lea Tenn. 557. As to need of constant lookout, see Louisville & Nashville Railroad Co. I'. Stone, 7 Ileisk. 408; Same i-. Milton, 2 Lea Tenn. 202. {b) Burlington & Missouri River Railroad Co. v. Wendt, 12 Neb. 70; McKissock v. St. Louis, Kansas City. & Northern Railway Co , 73 Mo. 450; Schneir v. Chicago, Rock Island, & Pacific Railroad Co., 40 Iowa, 339. But see St. Louis, Iron Mountain, & Southern Railroad Co. v. Ilagan, 42 Ark. 122; Jones v. Columbia & Green- ville Railroad Co., 20 S. C. 249; East Tennessee, Virginia, & Georgia Rail- road Co. r. Bayliss, 74 Ala. 150. The negligence must be proved. Cincin- nati, Hamilton, & Indianapolis Rail- road Co. V. Bartlett, 58 Ind. 572; Turner v. St. Louis & San Francisco Railway Co., 76 Mo. 201; Mobile fi Ohio Railroad Co. *•. Hudson, .')0 Mi.li. 518; Durham r. Wilmington vSc Wel- dou Railroad Co., 82 N. C. 3.-2, [•465] 486 INJURIES TO DOMESTIC ANIMALS. [PART V. 2. Most of the better considered cases certainly adopt this view of the subject, and some perhaps go even furtlier in favor of exempting the company from liability, where they were not origi- nally in fault, and the animals were exposed to the injury through the fault of the owner, mediately or immediately. 3. For instance, if the animal escape into the highway, and thus get upon the track of the railway where it intersects with the highway, and is killed, the company are not liable.^ (c) And if the animals are trespassing upon a field, and stray from the field uj)on the track of the railway, through defect of fences, which the company arc bound to maintain, as against the owner of the field, and are killed, the company are not liable, either at common law or under the English statute,* (c?) or upon the ground that the defendant exercised a dangerous trade. The obligation to make and maintain fences, both at common law and under the statute, applies only as against the owners or occupiers of the adjoining close.^ (e) 3 Towns V. Cheshire Railroad Co., 1 Post. N. IT. 303; Sharrod v. London & Northwestern Raih-oad Co., 4 Exch. 580; ILilloraii v. New York & Ilarlem Raih'oad Co., 2 E. D. Smith, 257. In Maryland it was held that a statute for the protection of animals and stock did not include negro slaves. Scaggs v. Baltimore & Washington Railroad Co., 10 Md. 268. But even where the cattle are wrongfully at large, and thus come upon the track, yet the company has often been held responsible for killing them through neglect or mismanagement short of positive or intentional wrong. Memphis & Charleston Railroad Co. v. Blakeney, 43 Miss. 218; Same v. Orr, 43 Miss. 279; Raiford v. IMemphis & Charleston Railroad Co., 43 Miss. 233. 4 Statute 8 & 9 Vict. c. 20, § G8. s Ricketts v. East & West India Docks & Birmingham Junction Railway Co., 12 C. B. 160; a. c. 12 Eng. L. & Eq. 520. See also Dawson v. Midland Railway Co., 21 W. R. 56. The same point is ruled in Jackson v. Rutland & Burlington Railroad Co., 25 Vt. 150. See also cases referred to in ^§ 127, 128. And it was held, in ^lanchester, ShefTield, & Lincolnshire Railway Co. v. (c) This requires some limitation, Mass. 118; Maynard v. Boston & as, 6. g., where the animals are run- l^Iaine Railroad Co., 115 Mass. 458; ning at large without fault of the McDonnell v. Pittsfield & North Ad- owner, or where they are killed wan- ams Railroad Co., 115 Mass. 564. tonly or wilfully. See supra, pi. 7, 9. (d) Curry v. Chicago & Northwest- And see Toledo, Peoria, & Warsaw em Railway Co., 43 Wis. 665. And Railway Co. v. Johnston, 74 111. 83; see Ellis v. Pacific Railroad Co., 55 Railway Co. v. Howard, 11 Am. & Mo. 278. Eng. Railw. Cas. 488; Darling v. (e) See Ohio & ^Mississippi Rail- Boston & Albany Railroad Co., 121 road Co. v. Jones, 63 111. 472. [*465] § 12i).] INJUUIES TO DOMESTIC ANIMALS. 487 * 4. So where the statute requires railways to fenco their road, where the same passes through " enclosed or improved lands," il injury ha}>pen to another's cattle tlirough want of fences, upon common or unenclosed land, it is not legally imputable to the negligence of the company.*^ 5. But if the railway are bound to maintain fences, as against the owner of the cattle, and they come upon the njud tliruugli defect of such fences, and are injured, the company are, in general, liable without further proof of negligence.^ Wallis, 1-1 C. B. 243; s. c. 25 Eng. L. & Eq. 37.3, that a railroad is not bouud to fence against cattle straying upon a highway running along the railway, nor liable for an injury sustained by cattle in getting from such highway on the railway, through a defect of the fences maintained by the company; although the cattle strayed on the highway without any fault of the owner. Brooks «'. New York & Erie llailway Co., 13 Barb. 591. But in the Midland Railway Co. V. Daykin, 17 C. B. 12G; 8. c. 33 Eng. L. & Eq. 193, it was held, that the company were liable where a colt strayed from a field, on a public road, abutting which was a yard not fenced from the railway, the gate of which was, through the neglect of the company's servants, left open, and, while the colt was being driven back to tlie field by the servants of the owner, it escaped into tlie yard, and thence upon the railway, where it was killed by a passing train. But in Ellis v. London & Southwestern Railway Co., 2 II. & N. 424, where a railway company constructed its road across a public footway, in such a manner that no security against injury to passers on the way was afforded within the provisions of the English statute, 8 «& 9 Vict. c. 20, §§ 46, 01, OS, by means of a bridge or stile, but the company erected high gates which obstructed the footway and gave the key to plaintiffs servant, winch had been lost and the gates left open, without notice to the railway company, whereby the plaintiff's colts escaped from his lands adjoining, and came on the rail- way and were killed by a passing train, the jury having found that the plain- tiff, by his own negligence and tiuit of his servants, had contributed to the acci- dent, it was held that he could not recover, notwithstanding the omission of duty by the company. " Perkins v. Eastern Railroad Co., 21) Mc., ;307. And if by usage cattle have the right to run on unenclosed land, the owner incurs the risk of all accidents. Knight v. Abert, G Penn. St. 472; Philadelphia & Gennantown Railroad Co. i-. Wilt, -4 AVhart. 143. ■^ Suydam v. Moore, 8 Harb. 358 ; "Waldron r. Rensselaer & Sar.itoga Rail- road Co., 8 Barb. 390; Horn v. Atlantic & St. Lawrence Railroad Co.. 35 N. II. 109; s. c. 30 X. II. 440; Smith v. Eastern Railro.ad Co., 35 N. II. 35G. But where the cattle come on the railway, at a point not proper to be fenced, as at the intersection of a highway, or at a mill yard, the company is not liable unless the plaintiff proves some fault besides the want of fences. Indianapolis & Cincinnati Railro.ad Co. v. Kinney, 8 Ind. 402; Lafayette & Indianapolis Railroad Co. r. Shrinor. G Ind. 141. But the owner of cattle is not precluded [♦466] 488 INJURIES TO DOMESTIC ANIMALS. [PART V. 6. But where the statute imposes the duty of building fence upon the railway, they may lawfully stipulate with the land-owners to maintain it, and if such land-owner suffer his cattle to be where tliey may come upon the railway without building the fence, he * cannot recover of the company.^ So, too, if the plaintiff leave down the bars at a cattle crossing, Avhereby his cattle go upon the railway and are killed, he cannot recover.^ (/) 7. And where the cattle go upon a railway through defect of fences, which the owner is bound to maintain, and suffer damage, the owner has no claim upon the company, unless, perhaps, for what has sometimes been denominated gross negligence, or wilful injury, for in such cases the cattle are regarded as trespassers,^" and the owner the cause of the injury sustained, unless the rail- way might have prevented it. But where there was no reasonable from recovering for any damage inflicted upon his cattle by the company, •whose duty it was to fence the line where it occurred, because he turned his cattle upon his land before the fence was built. McCoy v. California & Pacific Railroad Co., 40 Cal. 5-32. 8 Tower v. Trovidence & Worcester Railroad Co., 2 R. I. 404, 411 ; Clark V. Syracuse & Utica Railroad Co., 11 Barb. 112; Cincinnati, Hamilton, & Day- ton Railroad Co. v. '\Vaterson, 4 Ohio St. 424. So, also, where the duty of maintaining the fence along the railway is upon the land-owner, and it is burned down by fire, communicated by the company's engines, and he suffers his fields to remain unfenced, whereby his cattle go upon the track and are killed, he cannot recover. If the company is in fault, and liable to damages in regard to the fire, this does not oblige it to rebuild the fence, nor will it justify the plaintiff in suffering his fields to remain unfenced except at liis own peril. Terry v. New York Central Railroad Co., 22 Barb. 574. 9 Waldron v. Portland, Saco, & Portsmouth Railroad Co., 35 Me. 422. ^^ Tonawanda Raih-oad Co. v. Munger, 5 Denio, 255; s. c. 4 Comst. 319; Clark r. Syracuse & Utica Railroad Co., 11 Barb. 112; Williams v. Michigan Central Railroad Co., 2 Mich. 259. In this case the horses were wrongfully on the railway, and the court say the company " cannot be held liable for any accidental injury which may have occurred, unless the lawful riglit of running the train was exercised without a proper degree of care and piecaution, or in an unreasonable or unlawful manner." See also Garris v. Portsmouth & Roa- noke Railroad Co., 2 Ire. 324; Cincinnati, Hamilton, & Dayton Railroad Co. V. Waterson, 4 Ohio St. 424; Cleveland, Columbus, & Cincinnati Railroad Co. V. Elliott, 4 Ohio St. 474; New Albany & Salem Railroad Co. v. McNamara, 11 Ind. 543. (/) But otherwise where a gate is Wabash, & Western Railway Co. v. left open by trespassers in the plain- Milligan, 52 Ind. 505. tiff's absence from home. Toledo, r*467] § 120.] INJURIES TO DOMESTIC ANIMALS. 489 ground to suppose that the portion of fence which it was the duty of the company to build would have protected the animals, and the owner was shown to have been guilty of negligence in not taking care of them, it was held there could be no recovery, since his negligence was the direct and proximate cause of the injury." 8. And it was held to be gross negligence for the owner of cattle to suffer them to go at large, in the vicinity of a railway, whether the same was fenced or not.^^ And it will impose no additional * obligation ujion a railway company, in regard to cattle suffered to go at largo in the public highways, by order of the county com- missioners having charge of the same, if the company are guilty " Juliet & Xortliern Indiana Railroad Co. i\ Jones, 20 111. 221. And even ■where cattle came upon a track without the fault of the owner, but escaped from their enclosure and wandered upon the track, and were there damaged by the carelessness of the engineer in not slackening the speed of the train, the company was held not responsible. Price v. New Jersey Railroad Co., 2 Vroom, 229. But where there is evidence of recklessness or gross negligence, in such cases the company will be held responsible. Tiiis, however, is not to be car- ried to such an extent as to embarrass the engineer. If he act in good faith and according to his best wisdom and discretion, the company cannot be held liable for any injury. The question is well illustrated in Card v. New York & Harlem Railroad Co., 50 Barb. 39. See also Eames i;. Salem & Lowell Railroad Co., 98 Mass. 560; Chicago & Alton Railroad Co. v. "L'tley, 38 III. 410. But it seems to be unquestionable that even where the owner of cattle is guilty of negligence or even positive foolhardiness and wrong in allowing his cattle to come upon the track, this will not excuse the company for injur- ing them needlessly, or even carelessly. The company is still bound to exer- cise ordinary care and prudence in avoiding the infliction of injury ujMjn them until they can be removed from the road. Needham r. Santa Fe & San Josany, ho must prove want of care or skill on the part of the company; and that the statute depriving the company of an action against the owner of cattle, for damages caused by their straying on the [*4(;0] 494 INJURIES TO DOMESTIC ANIMALS. [PART V. * 11. In the New York & Erie Railway v. Skinner, ^^ Gibson, J., lays down the rule in the broadest terms, that railways, indepen- road, does not render it lawful for cattle to be allowed to go there unrestrained by fences. '*= 19 Penn. St. 298; s. c. 1 Am. Law Reg. 97. But in Banner v. South Carolina Railroad Co., 4 Rich. 329, it was held, that the fact that cattle pas- turing on one's own land are injured by a train, h prima facie evidence of the liability of the company, and that the company could only excuse itself by showing, from the manner of the injury, that it \va;3 not guilty of negligence; that for this purpose the company must show, not only that the injury was not intentional, but that it was unavoidable, and occurred without the least fault on the part of the engineer; but that to the maintenance of an action on the case for such injury, it is requisite to show, that it arose from the negli- gence of the company, and if it appear to have been wilful, or accidental, this action will not lie. This seems to be assuming the extreme opposite of the case last cited. The truth will be found to lie between them, doubtless. But the rule in Banner's case does not apply where the animal killed is a dog. Wilson V. Railroad Co., 10 Rich. 52. But it does apply to the killing of a horse at night. Murray v. Same, 10 Rich. 227. By the law of South Carolina, cattle must be fenced out, not fenced in. The entry, therefore, of cattle on an unen- enclosed railway track, is no trespass. Murray v. South Carolina Railroad Co., 10 Rich. 227. And it was held, that the owner of a horse, permitted to roam at large over unenclosed land, is not guilty of such negligence as will embarrass his recovery, should the horse be killed by the negligence of another. lb. The Georgia statute of 1847 makes railway companies liable for all damages done to live-stock or other property. But it was held they were not liable when the damage was caused by the design or negligence of the owner. Macon & Western Railroad Co. v. Bavis, 13 Ga. 68. And in Xew York it is held, that the statute, making railway companies liable for all damage done to cattle, horses, and other animals, until they shall fence their roads, renders them liable to the owner of cattle which strayed into an adjoining close, where they were trespassers, and thence upon the railway, or from the highway upon the rail- way ; that it makes no difference how the cattle came upon the railway, unless it is by the direct act or neglect of the owner, so long as the company does not fence its road according to the requirements of the statute. Corwin i;. New York & Erie Railway Co., 13 N. Y. 42. In this case the company had con- tracted with the land-owner to build the fence, which he had not done, and it was admitted, that if he had owned the cattle he could not recover. It is some- what remarkable, that the rights of the owner of cattle trespassing should be superior to those of the owner of the land. But in Shepard v. Buffalo, Niw York, & Erie Railway Co., 3-5 N. Y. 641, the court advance a step further in the same direction, and declare, it is no defence that the party whose cattle are killed was legally bound to build the fence himself, under a contract be- tween his assignor and the company. And it seems to be the disposition of the court to give the statute such an extensive operation that the company shall be absolutely responsible for all cattle injured, until it causes the erec- [*470] § 12G.] INJURIES TO DOMESTIC ANIMALS. 495 dent * of statutory requisitions, and as against the adjoining lan«l- owncrs, arc under no duty whatever to fence their road, nor are they bound to run with any reference whatever to the possibility of cattle getting upon the track. Every man is bound, at his peril, to keep his cattle off the track, and if he do not, and they suffer damage, he has no claim upon the company, or their ser- vants, and is liable for damages done by them to the comjjany or its })assengers. The opinion contains many sensible suggestions, and is curious for the enthusiasm and zeal manifested by one al- ready beyond the ordinary limit of human life. These views have sometimes been adopted in the jury trials in other states, and, as reported in the newspapers, in a recent case in Wisconsin, Prichard v. La Crosse and Milwaukee Railway. IJut they arc certainly not maintained to the full extent, in any country where the maxim sic iitere tuo ut alieniun non Icedas prevails, even to the limited extent recognized in the common law of England. * It was held in Gorman v. Pacific Railway, that the comj)any were not bound to fence their road ; but it was also held that the jury should consider the fact that the road was not fenced, in determining whether the company exercised proper care under the existing circumstances ; and it was said that such companies should exercise the utmost care and diligence in the exercise of their own privileges to avoid doing injury to others.^^ 12. It has been considered that a railway is not responsible for injuries to horses, in consequence of their being frightened on the road by the noise of the engine and cars, in the prudent and ordinary course of their operations.^ tion of proper fences according to the requirements of the statute. This seems too extreme to last or to be followed elsewhere. The same rule is realKrmed in Tracy v. Troy & Boston Railroad Co., 38 N. Y. 433. It is here said that the inconvenience of building fences at railway crossings will not excuse the com- pany from compliance with the express requirements of the statute. Nor will another company using the track be in any better condition than the first com- pany, s. p. Toledo, Peoria & Warsaw Railroad Co. v. Rumbold, 40 111. 143. " 26 Mo. 441. And the same rule of extreme care applies in tiiose states where cattle are by law allowed to go at large in the highways, and this iluty of care applies both to the railway companies and the owners of the animals, each to so exercise their own rights as not to injure the other. IIannil>al & St. Joseph Railroad Co. v. Kenney, 41 .Mo. 271; Michigan Southern & North- ern Indiana Railroad Co. v. Fisher, 27 Ind. 90. "0 Burton v. Philadelphia, AVilmington, & Baltimore Railroad Co., 4 Ilarring. Del. 252. [*4T1, *4T:2J 49G INJURIES TO DOMESTIC ANIMALS. [part V. 13. The subject of negligence in the plaintiff, which will pre- vent his recovery, is discussed much at length in Beers v. The Ilousatonic Railway ,^1 and in the main the same views are adopted in regard to injuries to cattle, which we have stated in regard to injuries to persons.^^ (i) It is there laid down by the court, that whether there was negligence or want of care in whatever degree, by either party, is a question of fact to be determined by the jury, and that even where the circumstances are all admitted, it will not be determined as a question of law, but the inference of negli- gence or no negligence is one of fact for the jury. Q") -1 19 Conn. 500. And in Poler v. New York Central Railroad Co., 10 N. Y. 470, where a gate adjoining plaintiff's land on defendant's land got out of repair and liable to be blown open, and the plaintiff, without giving notice to defendant, took measures to secure the gate, which proved ineffectual, and his cattle escaped through the fence and were killed on the track of defendant's road, it was a question of fact whether the plaintiff was guilty of culpable negligence. 2^ Infra, § 193, and cases cited; Chicago & Mississippi Railroad Co. v. Patchin, 10 111. 198. (i) Contributory negligence, to re- lieve from liability, like the negligence necessary to establish liability, must be an immediate proximate cause. Gates V. Burlington, Cedar Rapids, & Minnesota Railway Co., 39 Iowa, 45; Rock ford. Rock Island, & St. Louis Railroad Co. v. Irish, 72 111. 404. As to what will constitute contributory negligence, see Jones v. Sheboygan & Fond du Lac Railroad Co., 42 Wis. 300; Union Pacific Railroad Co. v. Schwenck, 13 Neb. 478; Jefferson ville Railroad Co. v. Foster, 03 Ind. 342; Lande v. Chicago & Northwestern Railway Co., 33 Wis. 040; Forbes v. Atlantic & North Carolina Railroad Co., 76 N. C. 454; Wilder v. Maine Central Railroad Co., 65 Me. 332; Pacific Railroad Co. v. Brown, 14 Kan. 469; Washington v. Baltimore & Ohio Railroad Co., 17 W. Va. 190. Permitting cattle to run at large con- sidered as contributory negligence. Jeffersonville Railroad Co. v. Adams, [*472] 43 Ind. 402; Hammond v. Sioux City & Pacific Railroad Co., 49 Iowa, 4.''jO; Evans v. St. Paul & Sioux City Rail- road Co., 30 Minn. 489; Curiy v. Chi- cago & Northwestern Railway Co., 43 Wis. 605; Fitch v. Buifalo, New York, & Philadelphia Railroad Co., 13 Hun, 008. It depends on circumstances whether it is or not. Cincinnati, Lafayette, & Chicago Railroad Co. v. Ducharme, 4 Brad. 178. Negligence is not to be inferred simply from the escape of an animal from a field, the fence being good. Spinner v. New York Central & Hudson River Rail- road Co., 67 N. Y. 153. (j ) Amstein v. Gardner, 134 Mass. 4; Chicago, Burlington, & Quincy Railroad Co. v. Ilouch, 12 Brad. 88: Schubert ?;. INIinnpapolis & St. Loui.s Railway Co , 27 ]Minn. 300; Ewing v. Chicago & Alton Railroad Co., 72 111. 25 ; Rockford, Rock Island, & St. Louis Railroad Co. v. Irish, 72 111. 404. § 12(3.] INJURIES TO DOMESTIC ANIMALS. 407 14. But this, wc apprehend, is true only where the circinn- stanccs leave the inrerencc doubtful. 11' the pnjof is all 2. -* Aurora Branch Railroad Co. r. Grinie.s, 1:5 111. .")S."). "'^ Moshier v. Utica & Schenectady Railroad Co., 8 Barb. 127. But .see Coy V. Utica & Schenectady Railroad Co., 23 Barb. 613. VOL. I. — 32 [*4TC.] 498 INJURIES TO DOMESTIC ANIMALS. [PART V. such " encroachments of defendants upon a turnpike is a ])ublic nuisance, for which any person sustaining a particular injury may maintain an action." 17. And it has been laid down, in general terms, that a railway company, authorized to use steam locomotive engines upon their road, is not liable for the damage or disturbance caused by such use, near a turnpike road existing before the railway company, imless such engines are used in an extraordinary and unreason- able manner.-^ 18. And where the legislature imposed a penalty upon railways, of 8100 for every month's delay in performing the duty of keep- ing * and maintaining legal and sufficient fences on the exterior lines of their road, as required by their charters, it was held that the neglect of the corporation to perform this duty rendered them liable to reimburse any person suffering injury thereby in his property, in an action at common law. And if the defect in the fences Ijy which the injury occurs was known to the company, they arc liable for the damage suffered, notwithstanding their engineer was at the time in the exercise of due care, and not- withstanding the fence was originally imperfectly built by the plaintiff for the company .^^ 19. In an action for injury to domestic animals by the passing engines of a railway company, it is not conclusive of the liability of the company that the damage occurred in consequence of the passing of their engine, and that the engineer omitted the statutory requirements of blowing the whistle, ringing the bell, reversing the engine, Arc. It should still be submitted to the determination of the jury whether the damage was caused by the engineer's neg- lect of duty, as that is a question lying exclusively within their province^^ -6 Bordentown & South Aniboy Turnpike r. Camden & Amboy Railroad Co., 2 Harrison, 311; Coj^ r. Utioa & Schenectady Ruih-oad Co., 2') Barb. 643. ^ Norris v. Androscoggin Railroad Co., 39 Me. 273. In tiii.s case the fence was stone-wall, built by plaintiff, by contract with the company some two years before, and accepted by them. The gap in the wall through which the animal escaped upon the track had existed .several days, and was known to the company. There was no other evidence of the manner of constructing the wall. The court held that tlie plaintiff stood in the same position, as to his claim, as if any other one had built the wall. 28 Memphis & Charlotte Railroad Co. v. Bibb, 37 Ala. 699. [*4T4] § 12G.] INJURIES TO DOMESTIC ANIMALS. 490 20. One who voluntarily suffers his cow to jro at large in the public streets of a city, with no one to take charge of her, and thus to stray upon a railway track, at a time when cars are passing, is guilty of such carelessness that he cannot recover for any injury to the animal through any degree of negligence short of that which is gross.^ (k) 21. The competency of the evidence of experts in regard to the management of locomotives so as to avoid the possibility of doing damage to animals upon the track, is discussed in a late case in Ohio.^*^ It is not easy to define any very exact rule in regard to the extent of the testimony of experts as to the practica- bility of avoiding doing damage, under a given state of exposure * of persons or animals. The subject is a broad one, and to its full discussion would require a volume, instead of a single para- graph. But we make no question, the management of a locomo- tive steam-engine, under any and all conditions and circumstances, is a matter of science and skill, as to which courts and juries are not ordinarily competent to form a reliable and satisfactory judg- ment, and that they do therefore stand in need of aid and instruc- tion in regard to the matter, whenever it comes before them for determination, and that consequently the testimony of experts may always be received under the ordinary limitations and restrictions. 22. The subject of the responsibility of railways for injury to cattle running at large and coming upon their track is very care- fully considered in a later case in Oliio.^^ It is here declared that ^ Bowman v. Troy & Boston Railroad Co., 37 Barb. 51G. 80 Bi'llfontaine & Iowa Railroad Co. r. Bailey, 11 Ohio St. .333. ^1 Central Ohio Railroad Co. v. Lawrence, 13 Ohio St. G6. (A) It lias been held, however, that unrea-sonable length of time. Sohool- tlie company i.s liable for the los.s of a ingc. St. Louis, Kansas City, &Xorth- cow killed at a point to which she was ern Railway Co., 7-") Mo. 518. Denver presumed to have been attracted by & Rio Grande Railway Co. r. Olsen, salt spilled by the defendant's ware- 4 Col. 23f); Van Horn r. Burlington, housemen in unloading cars. Crapton Cedar Rapids, & Northern Railway r. Hannibal & St. Joseph Railroad Co., Co., 59 Iowa, 33; Indianapolis & St. oj Mo. 580. So for the loss of hogs Louis Railroad Co. v. Peyton. 7<> III. attracted by drippings of mola.s.ses. 310; Jeffersonville Raih-o.nl Co. r. Page V. North Carolina Railroad Co., Underhill. 18 Ind. 389: McCandless r. 71 N. C. 222. But contra, where cattle Ciiioago & Northwestern Railway Co., were attracted by hay on cars, the 45 Wis 305. But see Chicago & .\lton cars not having been left standing an Railroad Co. r. Engle, 84 III. 307. [*475] 500 INJURIES TO DOMESTIC ANIMALS. [PART V. the owner of cattle who does not keep them within his own enclo- sure, when he might do so by proper care, cannot require of a railway company to regulate the management and speed of their trains with reference to cattle coming upon their track. Such companies, like all others, have a right to regulate the manage- ment and conduct of their business solely with reference to the security of persons and property in their charge, and the meeting of their reasonable appointments in regard to them, and may make their plans upon the reasonable and legal presumption that other persons will perform all their legal obligations towards them, and consequently that the owners of domestic animals will keep them at home, where alone they belong, and not suffer them to stray upon the track of a railway company, unless they are prepared to incur the legitimate hazards of such an exposure. But when a railway company finds cattle upon its track, it is bound to avoid damage to them, if practicable, by the same degree of effort that a prudent owner of the cattle would be expected to do, properly con- sidering the hazard both to the train and the cattle. And the proper inquiry in such a case is, whether the agents of the com- pany exercised reasonable and proper care, in running their en- gine, to avoid injury to the cattle of the plaintiff ; and the facts and circumstances bearing upon this question are for the exclusive consideration of the jury. 23. And much the same view is taken in a case in Kentucky ,^2 where it is said that the paramount duty of a railway * company, in the conduct of a train, is to look to the safety of persons and property therein, and subordinate to this is the duty to avoid unnecessary damage to animals straying upon the road.(Z) And while a railway company is not justified in any conduct of its agents in regard to cattle upon its track, which is needless, wan- ton, or wilful, it cannot be responsible for anything short of tliis, since the owners of cattle are specially bound to keep them off the tracks of railways. 82 Louisville & Frankfort Railroad Co. v. Ballard, 2 Met. Ky. 177. But railway companies are not bound to maintain fences sufficient to exclude the possibility of cattle coming upon their line, even under the extreme duty and obligation which they owe toward the protection of their passengers. Buxton V. Northeastern Railway Co., Law Rep. 3 Q. B. 549. (J) Supra, note (h). [*476] § 120.] INJURIES TO DOMESTIC ANIMALS. 501 24. And in a caso in Marvlumlr' it was held that the -wcll- scttkd principle of the common law, (hat a plaintilT is not entitled to recover for injnries to which his own fault or negligence has directly contributed, is not ahrouatcd l»y the several acts of assem- bly, regulating the liabilities of railways in this state for stock killed or injured by their trains. These acts leave the question of the effect of the plaintiff's conduct upon his right to recover for the acts of others where it was at the common law. But the burden of proof is changed by the statute, and where stock is killed the law now imputes negligence to the company, unless it can show that the damage results from unavoidable accident.^ It was not intended hereby to interfere with the time-table or the rate of speed on railways. The act leaves all this to the discretion of the companies, but imposes upon them the highest degi'ce of care and caution ; and in the absence of fault on the part of the jjlain- tiff it must appear that the collision took ])lace without any fault or negligence on the part of the company or its agents, in order to exonerate them. In other words, if the plaintiff is not in fault the company will be responsible, unless the damage is the result of unavoidable accident. 25. In Indiana it is held, that in an action against the company for killing stock it must appear, both in the complaint and proof, that the damage resulted from the carelessness of the company or the omission to fence their road.^^ (w) 2C. In Missouri ^s it is determined by statute and the construc- tion * of the courts, that if the accident occur u]ion a jiortion of the line not enclosed by a lawful fence, and not at a road or street crossing, whereby domestic animals ai'e ia] & St. Joseph Railroad Co., 'i'> Mo. i.oT; Burton v. North Mi.ssuuri Railroad Co., 30 Mo. 37l>. (»i) The matter is now regulated hy Same v. Downey, Gl Ind. 287; i.ouis- statute, both as to grounds of liability ville, New Albany, & Ciiicago R.nil- and as to practice in proceedings to way Co. r. Smith, 58 Ind. 575; Halti- euforco liability. See Jeffersonville n>L>re, Pittsburg. & Chicago Raihv.iy Railroad Co. v. Lyon, 55 Ind. 177; Co. v. Thomas, GO Ind. 1G7. [*47TJ 502 INJURIES TO DOMESTIC ANIMALS. [PART V. question of negligence, either on their part or that of the owner of the animals. But at highway or street crossings the company are not responsible for any damage to such animals, unless it occur through some neglect or fault on their part, (n) 27. In California ^^ it seems to be considered that the custom of the country to suffer domestic animals to go at large on the com- mons will override the rule of the common law, obliging the owner to restrain his cattle within his enclosures, and that conse- quently no negligence is imputable to the owner on account of so suffering his animals to go at large. But railway companies are not held responsible for damage inflicted upon such animals so running at large unless it might have been avoided by ordinary care and prudence on the part of the company at the time.^^ 28. There seems to have been some very nice questions raised in the courts of Illinois, for if it were not so some of the decisions would seem to partake largely of the character of incomprehensi- bility. For we find it gravely declared, in one case,^^ that the law does not require any different words to be used in proving a 36 Waters v. Moss, 12 Cal. 535. And in Alger v. Mississippi & Missouri Rail- road Co., 10 Iowa, 268, it was held that permitting cattle to run at large does not impute negligence to the owner, nor is he liable as a trespasser if they are found on an unfeuced railway. A railway company is bound to exercise ordi- nary care not to injure animals coming upon its track through defect of fence. After the road is fenced the company is only liable in such cases for gross neglect. And in McCall v. Chamberlain, 13 Wis. 637, it is held that the duty of companies to fence their roads is intended for the pi'otection of the public generally ; and that until such fences are built the company is liable for all injuries to animals on their track, without reference to any question of their being rightfully iu the adjoining land from whence they escaped upon the track. And the lessee of the company assumes all the company's responsibility. 3'' Richmond v. Sacramento Valley Railroad Co., 18 Cal. 351. There is no statute here requiring railways to be fenced by the companies. But when that is required, and the plaintiff alleges the duty was not performed, he must prove it as part of his case. Indianapolis, Pittsburg & Cleveland Railroad Co. v. Wharton, 13 Ind. 509. ^^ Ohio & Mississippi Railroad Co. v. Irvin, 27 111. 178. (;/) There the company is not liable employe is using for his own purposes, for an injury resulting from anything without authority and outside the line other than an actual collision. Seibert of his employment. Cousins v. Han- V. Missouri, Kansas, & Texas Railway nibal & St. Joseph Railroad Co., 66 Co., 72 Mo. 565. Nor for an injury Mo. 572. inflicted by a locomotive which an [*477] § 12G.] INJURIES TO DOMESTIC ANIMALS. 503 case ajrainst a railway from tliosc used in otlier cases. It i.s only necessary the mind should be convinced of the existence of Iho necessary * facts. And in the same case; The presumption is that the houses compose a villaiie, and if an animal is killed beyond the houses the presumption is that it is killed beyond the village, and if the town extends beyond the houses the defendant shoukl know the fact ; and also : Every one is sup[)0sed to have some idea of the value of such property as is in general use, and it is not necessary to have a drover or butcher to })rovc the value of a cow. And in another case in this state it seems to have been claimed that the declaration against a railway for injuries to domestic 'animals must negative the possibility of any excuse on the part of the comj)any. Uut the C(jurt hold that matters of excuse on the part of the company, as, that the animals were killed at a farm-crossing, and that the road was pro})erly fenced by them, must be shown by way of dcfence.'^^ But it was held in another case in that state, that the i)laintiff, in making out his own cause of action, must negative by proof the existence of a j)ublic crossing where the killing occurred, and should show that the defendants were bound to fence at that point.'*' And it was held in a later case, that it was negligence in a railway company to allow vegetation to grow upon its right of way, so that cattle may be concealed from vicw.^'(w) 29. If one allows stock to run in the highway near a railway crossing it is such negligence that he cannot recover for any in- jury thereto.'*^ And if one allows his cattle so to run in the highway, and thus come ut)on the track of the railway, and the company use all statutory and other reasonable i)recautious to avoid damage to them, the owner cannot recover for any such 89 Groat Western Railroad Co. v. Helm, 27 111. 198. ^0 Ohio & Mississippi Railroad Co. r. Taylor, 27 111. 207. *^ liass I". Chicago, Burlington, & (iuincy Railroad Co., 2S 111. 0. *- Chicago, Burlington, & Quincy Railroad Co. v. Cauffmau, 28 111. 513. (o) So to allow weeds, &c., togrow Indianapolis, Bloomington, & Western in the right of way to such a height Railway Co., 107 111. 577. The owner as to obstruct the view of a crossing, of a horse pormittcd to run at large Indianapolis & St. Louis Railroad Co. cannot recover, because the coinjiany f. Smith, 78 111. 112. Damages can had failed to fence. Peoria, rikin. be recovered under the statute only in & Jacksonville Railroad Co. v. Champ, case of actual collision. Schertz v. 75 111. 577. 604 INJURIES TO DOMESTIC ANIMALS. [PART V. damage, which is thus caused either wholly or in part by his own neglect, and he would also be liable for all injury to the com- pany or to persons or property in their charge.*^ (p) And the omission of the company to sound the whistle or to ring the bell in such cases, will not render them responsible for damage to cattle, unless it appear that such precautions would have pre- vented the injury .^^ 30. In actions for injury to cattle, if negligence is clearly proved on the part of the plaintiff, the company are not respon- sible unless * guilty of gross negligence, which implies wilful injury.'** In such actions founded upon the statute, the declara- tion should negative all the exceptions in the statute ; but the plaintiff is not called upon to negative in proof the existence of any contract between himself and the company to maintain the fences along the line of the road against his land.*^ 31. As the statute does not require railway companies to fence their road within the limits of cities and villages, they are not responsible for damage to domestic animals caused by their trains within such corporate limits ; and if the animal come upon their track within these limits, and is driven by the train beyond these limits and there killed, without any fault on the part of the com- pany, it is immaterial whether the road was properly fenced at the point where the animal was killed, as it came upon the track at a point where the company were not obliged to fence."'^ The mere killing of an animal by a railway company does not render them liable, unless they have been guilty of negligence or the case comes within the statute.'*^ 32. In cases where the company are required by statute to ring the bell or sound the whistle, and that is omitted, if injury occur in consequence, they will be responsible, unless the party injured was himself guilty of negligence contributing to such « Illinois Central Railroad Co. r. Phelps, 29 111. 447. ** Illinois Central Railroant pas.ses fur the owner, which, if the parties do nut agree, are to \n: determined by twu magistrates. Under this slatute it has been held, that the railway is not excused from mailing the necessai'y aceonnnodations to keep up cummunicatiun, to the owner, between dilTerent parts of lands intersect(;d by the line of a railway, because these are not dclined in the arbitrators' award of land damages. They arc totally distinct things from the land damages.- And where the jury, as- sessing land damages, also made a separate verdict for the exjjense of crossing the railway by a private way, it was considered that they exceeded their jurisdiction, and their proceedings were quashed.-'^ 2. It is considered, in the English courts, that, the expense of building fences and crossings being imposed upon the railways by statute pei'petnally, and the mode of enforcing its performance pointed out in the statute, it has no connection with the land damages, but is to be enforced under the statute, and land dam- ages are to be appraised upon the basis of that duty resting u])un the railway. 3. But where the statute makes no such provision, (a) the ex- ^ Statute 8 & 9 Vict. c. 20, § 40. But in Kyle v. Auburn & Rochester Rail- road Co., 2 Barb. Ch. 489, the court declined to interfere by injunction, to compel the building of a farm-cro.ssing, although tlie company as.sunied before the jury for assessing land damages, that they should make such a crossing, the plans showing none. It is said, that under such circumstances, it is tlie duty of the land-owner to make necessary crossings, and that he is a trespasser for crossing the railway without them ; and this shotdd be so considered, in assess- ing damages for taking the land, and compensation made for such exjwnse. 2 Skerrat r. North Staffordshire Railway Co., .') Railw. Cas. lOG, per Lord CoTTKNUA.M, Chancellor. See infra, § 131, note -i. 8 In re South Wales Railway Co. r. Richards, G Railw. Cas. 197. So too where the land-owner stipulated with the promoters for certain watering-places and other conveniences, and to accept a certain sum for special dannige. and to withdraw thereupon opposition to the bill, it was held that the duty to make suitable watering-places might be enforced by mandamus. Regina v. York & North Midland Railway Co., 3 Railw. Cas. 701; Infra. §§ 128. 151, 152. The provision for fences, in the Englisli statute, being a si-parate, inde- pendent, general provision, is enforced, altugetlier aside from the proceedings to assess land damages. (a) In some of the states there are their roads. Such statutes .ire a statutes requiring companies to fence police regulation for the safety of LM81J 508 FENCES. [part V. pense of fencing and making crossings is an important consideration in estimating damages for the land taken, and this expense should travellers, &c., and as such obligatory on corporations chartered after as well as before their passage. Wildei- v. ]Maine Central Railroad Co., 05 Me. 332. Under some of these statutes the adjoining owner may build the fence in case the company is delin- quent, and recover the expense in an action against the company. Logans- port Railway Co. v. Wray, 52 Ind. 578; Jones v. Seligman, 81 N. Y. 190; Fletcher v. St. Louis, Kansas City, & Northern Railway Co., 73 Mo. 142; Warner I'. Baltimore &Ohio Railroad Co. , 31 Ohio St. 205. Under the New York statute the owner is not confined to that remedy. He may enforce the performance of the duty by the company. Jones v. Seligman, 81 N. Y. 190. See further Kane v. New Yoik & New England Railroad Co., 49 Conn. 139; Ward v. Paducah & Memphis Railroad Co., 4 Fed. Rep. 862; Toledo, Peoria, & Warsaw Rail- way Co. V. Sieberus, 03 111. 217 ; Gowan V. St. Paul, Stillwater, & Taylor's Falls Railroad Co., 25 Minn. 328; Boston & Albany Railroad Co. v. Briggs, 132 Mass. 24. Where the statute requires the company to fence, the duty is a public one, and the owner of cattle has a right to assume that the company ■will perform it. St. John & Elaine Railway Co. v. Montgomery, 5 Pugs. & Bur. 441. For construction of that provision of the Illinois statute which requires the company to build fences within six inonths, see Rockford, Rock Island, & St. Louis Railroad Co. v. Heplin, 65 111. 366; Same r. Connell, 67 111. 216; Toledo, Peoria, & Warsaw Rail- way Co. V. Crane, 68 111. 355; Same V. Logan, 71 111. 191; Same i'. Lavery, [*481] 71 111. 522. Whether the company shall fence does not depend on its ownership of the fee. It is just as much bound to fence if it has only an easement. Toledo, Peoria, & AVar- saw Railway Co. v. Pence, 68 111. 524. The company is entitled to a reason- able time to repaii' any casual breach. Indianapolis & St. Louis Railroad Co. V. Hall, 88 111. 368; Davis t?. Chicago, Rock Island, & Pacific Railroad Co., 40 low^a, 292 ; Varco v. Chicago, Slil- waukee, & St. Paul Railway Co., 30 Minn. 18. So of a breach made by persons not in its employ nor under its control. Chicago & Alton Rail- road Co. V. Saunders, 85 111. 288. And the company is held to reasonable diligence. McCormick v. Chicago, Rock Island, & Pacific Railroad Co., 41 Iowa, 193 ; Case v. St. Louis & San Francisco Railroad Co., 75 Mo. 668. Where there was a delay of two days after the breach might reasonably have been i-epaired, it was held that there was a want of reasonable diligence. Goddard v. Chicago & Northwestern Railway Co., 54 Wis. 548. A defect patent and known to have existed two weeks or more held presumptive proof of negligence. Varco v. Chicago, Milwaukee, & St. Paul Railway Co., 30 Minn. 18. But held no unreason- able delay where the fence was burned at six or seven o'clock in the evening, and the foreman had notice at about eight, and was on the ground before six in the morning, and proceeded without unreasonable delay to repair with the company's nearest material, which was about half a mile distant. Stephen- son V. Grand Trunk Railway Co., 34 Mich. 323. Nor is it negligence as matter of law, that the company does § 127.] OBLIGATION TO MAINTAIN. r>Qo * undoubtedly be borne by tlie company, in addition to paying tlio value of tlie land, for otherwise the land is taken without an ocjuix - alcnt. But the courts in most of the American states have re- sisted this view wherever it was practicable, more commonly upon some tcclinical r^round of presumption or inference, when, in fact, the omission of such an exjjrcss provision in the charter or the u^eneral laws of the states was wholly the result of oversight in the legislatures. But it is refreshing to find some courts so far re- lieved from the trammels of mere technicality as not to feel com- pelled to sacrifice an ol)vious principle of justice to the shadow of a mere form. In a case in California we find an announcement upon this (luestion which evidently comes from the right quarter, a sense of simple justice. It declares, if fences are rendered necessary not repair at once, the weather being good, and want of repair being known to the employe before sunset. Crosby V. Detroit, Grand Haven, & Milwaukee Railroad Co., 23 Am. & Eiig. Raihv. Cas. 101. Though it is the duty of an injured party to use reasonable diligence to protect his property, he may not enter to repair fences or cattle-guards. Downing v. Chicago, Rock Island, & Pacific Railioad Co., 43 Iowa, 96. As to notice to the com- pany, see Jones r. Chicago & North- western Railway Co., 49 Wis. 352; Ohio and Mississippi Railroad Co. r. Clutter, 82 111. 12:5; Indianapolis & St. Louis Railroad Co. v. Hall, 83 111. 308. The company is also bound to use reasonable diligence to keep gates and bars in proper condition and properly closed. Perry v. Dubuque, Southwestern Railway Co., 30 Iowa, 102; Hammond v. Chicago & North- western Railroad Co., 43 Iowa, 1G8; Mackie r. Central Railroad Co., 54 Iowa, 540; Toledo, Wabash, & West- ern Railway Co. v. Nelson, 77 III. 160; Estes v. Atlantic & St. Law- rence Railroad Co., 63 Me. 308. It is also the duty of the company to main- tain cattle-guards as a part of a suit- able fence. Pittsburg, Cincinnati, & St. Louis Railway Co. u. Eby, 55 Ind- 507. See Cook v. Milwaukee & St. Paul Railway Co., 30 Wis. 45; Welty V. Indianapolis & Vincennes Railroad Co., 24 Am. & Eng. Railw. Cas. 371. Whether a cattle-guard is sufficient is a question for the jury. Swartout v. New York Central & Hudson River Railroad Co., 7 Hun, 571; Cleveland Railroad Co. v. Newbrander, 11 Am. & Eng. Railw, Cas. 480. In general, contributory negligence is a defence to an action for injury wliere there is no fence. Cuny v. Chicago & North- western Railway Co., 43 Wis. 605; Whittier r. Chicago, IMllwaukee, & St. Paul Railway Co.. 21 Minn. :'.94. But see Loui.sville, New Albany, & Chicago Railway Co. v. Cahill, 63 Ind. 346. As to what is contributory neg- ligence, see Richardson v. Chicago & Northwestern Railway Co., 56 Wis. 347 ; Sandusky & Clcvoland Railroad Co. V. Sloan, 27 Ohio St. 341; Rail- road Co. V. !Miami County Infirmary, 32 Ohio St. 566; Johnson r. Chicago, Milwaukee, & St. Paul Railway Co., 20 Minn. 425; Cairo & St. I>ouis Rail- road Co. V. Woolsey, 85 111. 370. [*482] 510 FENCES. [part V. for the protection of the crops of the land-owner by the construc- tion of the railway through the land, the cost of such fences must be included in the compensation to be paid by the company,^ and this by necessary consequence must include a sum sufilicient to indemnify the owner against the constantly accruing expenses of maintaining such fences. And the tendency of the more recent decisions is sensibly in this direction ; and we might add, without offence, that in our judgment it is the only sensildc direction the decisions could take, and we have always expected them to take such a direction in the end, however late it may come.^ (^) 4. And where in such circumstances the commissioners assessed the land damages, and a separate sum for building fences, and judgment was rendered in favor of the land-owner for both sums, but the payment resisted by a proceeding in Chancery, on the part of the railway, and while this was still undecided the company commenced running their engines, and the cattle of the occupier of the land strayed upon the track and were killed by the engines of the company, it was held,^ that the obligation to maintain the * fence rests primarily upon the company, and until they have either built the fences or paid the land-owner for doing it, a suffi- cient time before to enable him to do it, the mere fact that cattle get upon the * road from tlie land adjoining is no ground for im- puting negligence to the owner of the cattle.^ (c) * Sacramento Valley Railroad Co. v. Moffatt, 6 Cal. 74. 5 Evansville Railroad Co. v. Fitzpatrick, 10 Ind. 120; Same v. Cochran, 10 Ind. 5G0; Same v. Stringer, 10 Ind. 551. This is now remedied by statute in many states. <> Quiinby v. Vermont Central Railroad Co., 23 Vt. 387; see also Vander- kar V. Rensselaer k Saratoga Railroad Co., 13 Barb. 390. But under the English Railway Acts, where the company is required to make crossings, (b) The question is differently dis- (c) In Indiana it is no answer to posed of, at least so far as form goes, an action for injury of animals on the in some of the cases. Thus, in Pitts- track, by reason of a want of a fence, burg, Bradford, & Buffalo Railroad Co. that an allowance was made the r. McCloskey, 23 Am. & Eng. Railw. owner for fencing in the award of Cas. 86, it was held that the cost of land damages. It is still the duty of fencing, as such, was not an element the road to fence. Baltimore, Pitts- of damages, but that the extent to burg, & Chicago Railway Co. r. John- which the burden of fencing would son, 59 Ind. 188. depreciate the value of the remaining land might properly be considered. [*483, *484] § rJT.] OBLIGATION TO MAINTAIN. 511 5. In some cases in this country it has been held that the railway and the adjoininsx land-owner arc to defray cqnal pro]»ortiuns of the expense of maintaining fences, ni)on the i)rineipk of being adjoining where land is divided, and the mode of determining the nature of the crossings is to be referred, " in case of any dispute," to two justices, on the application of the land-owner, it was held, that until the company has made a communi- cation, a party whose land has been severed by tlie railway, has a right to piuss from one portion of his property to the other across the railway, at any point, and that the section requiring the owner to pass at such a place as shall *' be appointed" for crossing, means, "when such places shall have been appointed." Grand Junction Railway Co. v. White, 8 M. & W. 214; s. c. 2 liailw. Cas. 5o9. And where, at the time of appraising land damages, the land-owner, in the presence of the agents of the company, pointed out to the commissioner the place where he would have a farm-crossing, and no objection was made by the company, and the sum awarded was paid, but the company, in construct^ ing the road, were throwing up an embankment at that point, and locating the crossing at a different place, where it would be inconvenient for the land- owner, an injunction was granted until the company should either make a suitable crossing or compensate the land-owner. Wheeler v. Rochester & Syracuse Railroad Co., 12 Barb. 227; IMilwaukee & Mississippi Railroad Co. V. Eble, 4 Chand. 72. It is here held, that the land-owner is entitled to in- clude, in his damages, the expense of fencing, as incidental to the taking of the land. But the contrary is held in a very elaborate case in Iowa, Henry v. UulMique & Pacific Railroad Co., 2 Clarke, 288. The argument of the court in that case, however, is unsatisfactory. And where the railway at first con- tracted with the land-owner to build the fence for them at a specified price, but a controversy arising in regard to land damages, the commissioners re- ported a sum which was finally confirmed by the court, and an additional sum for the expense of building the fence, and the plaintiff took judgment and execution for this also, and subsequently built the fence according to his con- tract with the company, and sued the company for the price, it was held that he could not recover, the former judgment having merged the contract, and imposed on him the duty to build the fence, under the award and judgment. It was also held that the land-owner could not recover anything beyond the award for having built the fence according to the original contract, which rendered it more expensive to him than it would otherwise have been. Curtis r. Vermont Central Railroad Co., 2.'} Vt. G]-i] s. c. 1 Am. Railw. Cas. 258; see Lawton r. Fitchburg Railroad Co., 8 Cush. 2:10. And where the stntute requires the company to make farm-crossings where they divide land, it is not proper for the jury, in assessing compensation to the land-owner, to include the expense of a bridge for the purpose of a farm -crossing. Pliiladelphia, AVilmington, & Baltimore Railroad Co. ?•. Trimble, 4 Wh.irt. 47; s. c. 2 .\m. Railw. Cas. 245. In the case of Chicago 8c Rook Island Railroad Co. v. Ward, IG 111. 522, where the company covenanted to maintain fences on land intersected by the road, and failed to perform the covenant, and crops were destroyed, it was held that the company was liable for the value of the crops [♦484J 512 FENXE3. [part V. proprietors, and being equally interested in having the fence main- tained, unless the land-owner chooses to let his land lie in common, and in that case the company must be at the whole expense of fenc- ing, as a necessary protection and security to their business^ .crrowing on the land and destroyed as of the time when fit for harvesting. This does not seem entirely in accordance with general principles on this question. The case professes to go upon the authority of De Wint r. Wiltie, 9 Wend. 325. But see §§ 14S, 106. ' In re Rensselaer & Saratoga Railroad Co., 4 Paige, .5.53. In Northeast- ern Railroad Co. r. Sineath, 8 Kich. 18.5, it is held that damages are not to be assessed for fencing through unenclosed land used for grazing. In Louisville & Frankfort Railroad Co. r. Milton, 14 B. Monr. 75, it is held, that where one grants the right of building a railway across his land, neither the land-owner nor the company is bound to fence adjoining the railway. If the land-owner suffers his cattle to run at large, as he may, if he choose to incur the risk, he cannot recover damages of the company for any injury sustained by them, unless it might have been avoided by the agents of the company, with due regard to the safety of the train and its contents. If such cattle, permitted to run at large on the railway track, are killed accidentally by the train, when running at its customary speed, the owner cannot recover of the company. The court here discountenances the notion that seems sometimes to have pre- vailed, that if the company is in the right in running its train, and especially where cattle are trespassing on the track, it may destroy them at will, without incurring any resjHjnsibility. And in regard to the case of Xew York & Erie BailroadCo. r. Skinner, 19 Penn. St. 293, the court says, "it is not disposed to sanction all the legal doctrines avowed in that opinion." Railways are onl} botmd to the use of such diligence, prudence, and skill, to avoid injury to cattle rightftdly in the highway at a road-crossing, as prudent men exercise in the conduct of their own business. And as to cattle wrongfully on the railway, unless the injury is caused wilfully, or through gross negligence, the company is not liable. Chicago & ilississippi Railroad Co. c. Patchin, 16 IlL 193: Great Western Railroad Co. r. Thompson, 17 111. 131; Quimby r. Ver- mont Central Railroad Co.. 23 Vt. 357; Central Military Tract Railroad Co. r. Rockafellow, 17 111. 541: Railroad Co. r. Skinner, 19 Penn. St. 298; Illinois Central Railroad Co. r. Middlesmith, 46 111. 494. But this latter case lays down the rule somewhat more stringently than the former cases. In White r. Concord Railroad Co. 10 Fost. X. H. 1S3, it was held, that where the statute requires railways to fence and maintain proper cattle-guard«. cattle-passes, and farm-crossings, for the convenience and safety of the land- owners along the side of the road, or settle with the land-owners therefor, and a railway divides a pasture, and a crossing is made, under the statute, the land-owner may let his cattle run in the pasture " without a herdsman,'' and the company will be liable for their destruction while crossing the track from one pasture to the other, unless the injury was caused by accident or by the fault of the owner, or unless it appears that the company has settled with the owner in relation to such guards, passes, and farm-crossings. And it was [•484] § 1-21.] OBLIGATION TO MAINTAIN. 513 • 6. But many of the American cases assume the ground that where there is no statute imposing the duty of fencing upon the •company, and no stipulation, express or imj)lied, between the impany and the land-owners that they shall maintain fences, • tliey are not bound to do so, but the cummon-law duty of keep- ing one's cattle at home rests upon the land-owner.^ And this ew is probably consistent, in principle, with the cases where such a duty is held to result from the appraisal of laud damages, held, also, in the same case, where the plaintiff deeded the land to the com- pany on condition, '-said corporation to fence the land and prepare a crossing, with cattle-guards, at the present travelled path, on a level with the track," that this w;is not such settlement, and did not alter the le^al relations of the }->arties. In this case, both parties being in the right, were bound to the degree of prudence which is to be expected of prudent men. The railway, knowing of the crossing, and of the liability of cattle to be on it, Mas lound, rather than the land-owner, to keep a lookout. In Long Island Ilaiiroad Co., 3 Edw. Ch. 4S7, the Vice-Chancellor seems to consider that a railway company has no interest in having its road fenced, and is therefore not l>ound to contribute to the exj^nse of fencing, which is at variance with the opinion of the Chan- cellor (4 Paige, 553), and equally, as it would seem, with reason and justice. See Campbell v. Mesier, 4 Johns. Ch. 334. In Sullivan f. Philadelphia & Reading Railroad Co., 6 Am. Law Reg. 342; s. c. 30 Penn. St. 234; s. c. 2 Redf. Am. Railw. Cas. 5G4, the subject of the duty of naiUvay companies to fence their roads for the security of passengers is discussed, and many sensible practical suggestions made. Infra, § 192, note 6; § 204 n. » Hurd r. Rutland & Burlington Railroad Co., 25 Vt. 116, 123; Xew York & Erie Railway Co. r. Skinner, 19 Penn. St. 298; Clark r. Syracuse & I'tica Railroad Co.. 11 Barb. 112; Dean r. Sullivan Railroad Co., 2 Fo.st. N. H. 316; Alton & Sangamon Railroad Co. r. Raugh, 14 111. 211. Where, on appeal frora the first appraisal of land damages where the erection of fences h.-ul been speci- fied, th.at was vacated, and the new apprais.al made no such requin-ment of the company, it was held that the presumption w.as, that the whole d.amage9 were .apprai.sed in money, and the comj^any was not l>onnd to build fenct»s. Morss r. Boston & Maine Rjiilroad Co., 2 Cush. 53^^; Williams r. New York Centnal Railroad Co., IS Barb. 222. It seems impossible to estimate damages for taking land for the use of a railway, without taking info the account the expense of fencing, lleniy r. Pacific Railroad Co.. 2 Clarke. 22S; Milwaukee & Mississippi Railroad Co. f. Eble, 4 Chand. 72; Northe.vst^rn Railroad Co. r. Sinoafh, S Rich. 1S5; In re Rensselaer & Saratoga Railroad Co., 4 Paige. 533. And those cases which hold the comp.any not bound to fence, unless required to do so by stitut^^ or contract, go on the presumption that they have already paid the expense of fencing in the land damages. See B.ilfimore & Ohio Railroad Co. r. Lamborn. 12 Md. 2r)7; Madison & Indianaj>->lis Railtwid Co r. Kane, 11 Ind. 375; Stucke r. Milwaukee & Mississij^pi Railn-»ad Co., 9 Wis. 202; Richards r. Sacramento Valley Railroad Co., IS Cal. 351. • VOL. 1, — S3 [•4S5-*4"^T] 514 FENCES. [part V. subject to the expense of building fences being borne by the com- pany, or where the assessment specifically includes the expense of fencing, and that has not been paid. And in the Irish courts the company is only bound to erect such accommodation works for the benefit of the land-owners as are a compliance with the specifica- tions in the award. This is true even where the railway crosses a private road over a farm in the right of some third party as lessee of the farm obliquely, and the award adjudicating the claim of such lessee specified only a crossing over the railway as a " level crossing" at a given point, and the company, gave a crossing at right angles with the road, which did not connect the termini of the road, and gave no access to it ; it was nevertheless held that this was a compliance with the award.^ This is certainly not a fair construction of the award, as applicable to the subject-matter ; and it does not require any gift of prophecy to foretell that the doctrine of * the case will not be followed in this country, and, with deference be it said, it ought not to be followed anywhere. 7. And in some of the states the rule of the common law, in regard to the duty resting upon the owner of domestic animals to restrain them, has not been adopted so as to charge the owner with negligence for suffering them to go at large.^*^ 8. But it is held, that where the statute imposes upon the com- pany the duty of maintaining fences and cattle-guards at farm- crossings, and provides that until such fences and cattle-guards shall be duly made the corporation and its agents shall be liable for all damages from such defect, this renders a lessee of the road liable for injury to cattle caused by his operating it without proper cattle-guards at farm-crossings.^^ 8 Mann v. Great Southern & Western Railway Co.,9Tr. Com. Law, 105. ^° Kerwhacker v. Cleveland, Columbus, & Cincinnati Railroad Co., 3 Ohio St. 172. In such cases the company is bound to use reasonable care not to injure animals thus rightfully at large. lb.; Cleveland, Columbus, & Cincin- nati Railroad Co. v. Elliott, 4 Ohio St. 474. If the owner is to be charged with remote negligence in suffering his cattle to go at large, under such cir- cumstances, and the servants of the company are guilty of want of care at the time of the injury, which is the pr-oximate cause of it, the company is still lia- ble, lb.; Chicago & Mississippi Railroad Co. v. Patchiii, 10 111. 198; In- dianapolis & St. Louis Railroad Co. v. Caldwell, 9 Ind. 397. " Clement v. Canfield, 28 Vt. 302. And the same rule applies to a com- pany running its cars over another company's line by arrangement between the companies. If the road is not properly fenced, the company running the [*488] § 127.] OBLIGATION TO MAINTAIN. fjlo 9. A general statute, requiring fences to be maintained by rail- ways upon the sides of their road, applies to land acquired bv purchase as well as to that taken in invitinn.^' * 10. And tlic statute, requiring farm-crossings "for the use of proprietors of land adjoining," has no reference to the (piantity of land to be accommodated, but only that the crossing nmst be useful. '2 (,7) 11. .Where the statute requires the company to erect, at farm- crossings, bars or gates, to prevent cattle, &c., from getting upon the railway, and the land-owner who is entitled to such protec- tion refuses to have such bars or gates erected, or requests the company not to erect them, or undertakes to erect them himself, he cannot maintain an action against the company for not com- trains by which the damage is caused will be responsible, although it be the default of the other company, for which that is also responsible to the party injured. Illinois Central Railroad Co. v. Kanouse, 39 111. 272. An order on a railway for making farm accommodations must specify the time within which they shall be made. Keilh v. Cheshire Railroad Co., 1 Cray, Gil. And where the act allowing a railway company to lease its road is on the ex- press condition that it be not thereby exonerated from any of its duties or liabilities, this must include the maintaining of fences. Whitney v. Atlantic & St. Lawrence Railroad Co., 44 Me. 3G2. Where a company permits its cattle-guards to remain filled with snow, so that cattle which have strayed upon the highway without any negligence on the part of the owner pa.«s over such guiirds, and in con.sequence are injured by a passing train, the company is liable for the damages. Donnigon v. Chicago & Northwestern Railroad Co . 18 Wis. 28. '- Clarke v. Rochester, Lockport, & Niagara Falls Railroad Co., 18 Barb. 350. A fence built in zigzag form of rails, half the length on the land taken for the railway and half on the land of the adjoining proprietor, is a compli- ance with the statute requiring the fence to be built on the side of the road. Ferris v. Van Buskirk, 18 Barb. 397. And where the statute provides that, on certain proceedings, railway companies may be compelled to provide farm- crossings and cattle passes for the owners of land intersected by the company'.^ road, and no such proceedings have been taken, the company is not liable to an action for damages resulting from the want of necessary farm-crossinga and cattle passes, unless it appears that the company had contracted to build them. Horn v. Atlantic & St. Lawrence Railroad Co., 3."} N. H. 109; s. c. 30 N. II. 440. Where the railway company contracts to build fences nn. New Albany & Salem Railroad Co., 5 Ind. Ill; Lafayette & Indianapolis Railroad Co. i'. Shriner, G Ind. 141. In this Ciuse it was held, that such a statute had no reference to the case of cattle killed at a road-cross- ing, as that was a place which could not be protected either by fences or cattle- guards. ^* Rogers v. Newburyport Railroad Co , 1 Allen, IG. 19 Stearns v. Old Colony & Fall River Railroad Co., 1 Allen, 493. And the burden is on the plaintiff in an action against a railway company for dam- ages caused by defect of fences on its line, to show tliat the company was bound to maintain such fences. Baxter v. Boston & Worcester Railroad Co., 102 Mass. 38:). ^ Indianapolis & Cincinnati Railroad Co. v. Townsend. 10 Ind. 38; .Tefferson- ville Railroad Co. v. Applegate, 10 Ind. 49; Indianapolis & Cincinnati Railmad Co. I'. Meek, 10 Ind. 502; Jefferson ville Railroad Co. r. Dougherty. 10 Ind. 549. 2' Peru Railroad Co. v. Ilaskett, 10 Ind. 409. And the company is not lia- [M91] 518 FENCES. [part V. 15. Railway companies arc not liable for injuries to animals at highway crossings, although the crossing had been abandoned by the public for two years and the highway changed, it not appear- ing to have been vacated in the mode prescribed by statute, so as to justify the company in fencing their track across it.^^ 16. Railway companies in England are not held responsible for injuries to cattle transported to their stations, where the injury is caused by their escaping upon the track through defects of the fence about the cattle-yard ; nor for the cattle being frightened by one of the porters of the company coming out of the station into the cattle-yard, having a lantern, such as was ordinarily used, in his hand ; it being no evidence of negligence on the part of the company's servants.^^ Jt -v^as considered here that the cattle had been delivered to the plaintiff, and it was his fault, since he knew the yard was not fenced, and had himself pronounced it an unsafe place, not to guard against their escape. 17. It appeared in one case^^ that the plaintiff's horse had es- caped * in the night-time from his pasture upon the railway track, on account of the want of proper fence along the line of the road, and w^as found in the morning a mile from the plaintiff's land in a rocky pasture seriously injured in the leg ; and there was some evidence tending to show that the injury was received in the pas- ture where he was found. The court charged the jury that if they were satisfied there was a clear connection between the escape of the horse and the injury received, the plaintiff was entitled to recover. This was held erroneous in not requiring the jury to discriminate between a direct and a remote connection between the neglect of the company and the damage to the plaintiff's horse, as he could only recover upon the former ground. 18. In this case-* the plaintiff's cows were killed by escaping ble for cattle killed in the highway without its fault, where the track of the road was fully fenced. Northern Indiana Railroad Co. v. Martin, 10 Ind. 460. 22 Indiana Central Railroad Co. v. Gapen, 10 Ind. 292. 23 Roberts v. Great Western Railroad Co., 4 C. B. N. s. 506. Railway com- panies are not bound to fence their depot grounds. Davis v. Burlington & Missouri River Railroad Co., 26 Iowa, 519. 24 Ilolden r. Rutland & Burlington Railroad Co., 30 Vt. 297. Where the plaintiff had knowledge at evening that his fence was in danger of being car- ried off by a flood, and knew his cattle would in consequence be liable to come upon the railway track, and refused to remove them from the pasture, and before morning the fence was carried off, and the cattle came upon the track [*492] § 127.] OBLIGATION TO MAINTAIN. .019 from ilic plaintiff's pasture, and going into a piece of land leased hy the plaintiff to the defendants, to be used by them as a wood- yard, and from that upon the defendants' track, for want of fence about the wood-yard. The evidence left it doubtful whether the defendants were to have the exclusive occupancy of the wood- yard, or were to fence the same, as between them and the plain- tiff ; it was held that, in order to recover of the defendants for killing the cows, it should be found by the jury that it was the duty of the defendants to maintain the fence for defect of which the cows escaped upon the defendants' track. 19. The statute of New York, requiring railways to maintain cattle-guards at road-crossings, applies to streets in a village, but not so as to impede the passage along the streets, or render them unsafe for persons passing.^^ (e) 20. It has often been declared that railway companies, to relieve themselves from responsibility for damage caused by their trains to domestic animals, must not only build but maintain in good * repair all fences and cattle-guards required of them by law.^^ (/) If such structures arc allowed to fall into decay, or are acciden- tally thrown open or thrown down, and not closed aud restored within a reasonable time, the company are responsible to the owner of cattle injured by such neglect, provided he is not in and were killed by a passing train, it was held that the plaintiff could not recover. Michigan, Northern, & Soutliern Railroad Co. i'. Shannon, l:J Ind. 171. There are numerous cases in ludiana where matters of practice under the statute of that state are discussed. Wright i'. Gos.sett, I.j Iml. 119; In- dianapolis, Pittsburg & Cleveland Railroad Co. v. Fisher, 15 Ind. 20:); Same v. Kercheval, 10 lud. 84; Ohio & Mississippi Railroad Co. v. Quier, 10 Ind. 440. And it has been held that the killing of each of several animals killod at one time constitutes a separate and indivisible cause of action, and two of these cannot be united to give jurisdiction to the Circuit Court. Indianapolis & Cincinnati Railroad Co. v. Kercheval, l21 Ind. 139. ••^5 Brace i'. New York Central Railroad Co., 27 N. Y. 209. 26 McDowell V. New York Central Railroad Co., 37 Barb. 19."). (e) So of that provision of the vcnicnce of the land-owner, be left statute requiring the road to be fenced, open continually by the agents of the Vacant lots fronting the road must be company or by i>ersons doing busine.. t'. Tilton, 12 Ind. 3; Same v. Maiden, 12 Ind. 10. See also Illinois Central Railroad Co. «;. Swearingen, 33 111. 3S9. 31 New Albany & Salem Railroad Co. r. Pace, 13 Ind. 411. 82 Buxton f. Northeastern Railway Co., Law Rep. 3 Q. B. 549; supra, § 120, note 32. »8 Schmidt !'. Milwaukee & St. Paul Railroad Co., 23 Wis. ISrt. [M94J 522 FENCES. [part v. build, and was injured in consequence, it was held that a child so young could not be guilty of negligence, and that the omission to build the fence by the company was negligence, and made the company responsible. 24. A land-owner, who by contract with the company is bound to maintain the fences through his land, cannot recover of the company for damage to cattle by reason of defect of fences, unless he show negligence on the part of the company.^* (i) But a railway company is responsible for cattle killed by their trains at a mere private road-crossing, which was not, but might have been, easily fenced by tliem.^^ This case was controlled by the statute. A sufficient fence in Indiana is held to be such an one as good husbandmen usually keep."^^ But in many of the states what shall constitute legal fences is defined by statute. 25. Railway companies are not responsible for damage accru- ing to domestic animals from want of fences, at points which do not properly admit of being fenced, as in the immediate vicinity of engine-houses, machine-shops, car-houses and wood-yards.^" (j) 3* Terre Haute Railroad Co. r. Smith, 10 Ind. 102. 35 Indiana Central Railroad Co. j;. Leamon, 18 Ind. 173. 2^ Toledo & Wabash Railroad Co. v. Thomas, 18 Ind. 215. If such a fence is maintained, the company is liable only as at common law for negligence. Infra, pi. 34. 3^ Indianapolis & Cincinnati Railroad Co. v. Oestel, 20 Ind. 231 ; Galena & Chicago Union Railroad Co. c. Griffin, 31 111. 303. 0') Where the company builds a Railroad Co., 22 Am. & Eng. Raihv. cattle-guard at the request of the ad- Cas. 574; Prickett v. Atchison, To- jacent proprietor, and maintains it peka, & Santa Fe Railroad Co., 23 thirty 3'ears, it may cease to maintain Am. & Eng. Railw. Cas. 232. Nor it without notice to the owner. Vicks- where it can fence but one side. In- burg & Meridian Railroad Co. r. diana, Bloomington, & Western Rail- Dixon, 61 Miss. 119. way Co. v. Leak, 89 Ind. 596. But (J) Or of a saw-mill or a hay-press, the company is not excused from fenc- Pittsburg, Cincinnati, & St. Louis ing in a town, unless a fence would Railway Co. ». Bowyer, 45 Ind. 490; be improper. Pittsburg, Cincinnati, & Ohio & Mississippi Railway Co. v. St. Louis Railway Co. v. Laufraan, 78 Rowland, 50 Ind. 349. Nor around Ind. 319. Nor at a place where there a warehouse in a village adjoining a is a switch merely, unless it is on sta- switch. Toledo, Wabash, & Western tion grounds. Comstocky. Des Moines Railway Co. v. Chapin, 66 111. 504. Valley Railroad Co., 32 Iowa, 376. Nor about station grounds. McGrath Nor along its way through a town or V. Detroit, Mackinac, & Marquette city, merely because it is in a town, [*494] § 127.] OBLIGATION TO MAINTAIN. 528 And where the fence along a railway line is destroyed by unavoid- able accident, as l)y fire, and is repaired in a reasonable time, but in the mean time cattle t;et at laruv by reason of the want of fence, and arc injured, the comi)any will not be held responsible.^ (A:) 20. In Indiana railway conii)anies are by statute made respon- sible * for animals, but not for persons, injured upon their roads, when they might be, but are not fenced, irrespective of the ques- tion of ncgligence.(Z) But when a proper fence is maintained in all places where it is required to be, the company are not respon- sible for animals injured, except, as at common law, where there is negligence on their part conducing to the result, and none on the part of the owner.^^ 27. The requirements of railway companies as to fencing their roads are not intended exclusively for the protection of domestic animals, but also for the security of travel and transportation, and where the fence is thrown down by third persons without the knowledge of the company that it is down, and cattle stray upon the track and receive injury, the company is not responsible for the damage.*'' 28. Where the plaintiff is guilty of negligence wliich immedi- ately and directly contributes to the injury of cattle, he cannot re- 88 Toledo & Wabash Railroad Co. v. Daniels, 21 Iiid. 1?30; Indianapolis, Pittsbnrerty in the things, and is, pro hac vice, the owner, and doing his own business, niay sound plausible, but we think it unsound, although quoted from so ancient a date as Rolle's Abridgment, and adopted by so distinguished a judge as Lord Kexyox. The truth is, the argument is only a specious fallacy; and whether Lord Kenyox intended really to say, that no action will lie against the master in such case, or only to say, what the case required, that the master is not liable in trespass, it is very obvious that the proper distinction cannot be made to depend on the question of the intention of the servant. Tlie master has nothing to do, either way, with the intention. It is by acts that he is affected, and if these come within the range of the employment, the master is liable, whether the act be a misfeasance, or a non-feasance, an omission or a commission, carelessly or purposely done. It will happen, doubtless, whore the master is under a positive duty to keep or carry things safely, as a bailee, or to carry persons safely, that while he will be liable for the mere non-fea-s. auce of the servant, the servant will not be liable to the same party, there being no privity between the servant and such party, no duty owing to such person from the servant. But in such case the servant will be liable for his positive wrongs, and wilful acts of injury, and the master liable for these latter acts, but ordinarily not in trespass as the servant is, but in case. And an, where the servant goes out of his employment, and commits a wnmg. e. g. an by section men to warm their meals the men had any sui^ervision of the which, left unextinguished, spread to right of way. adjoining land, it not appearing that VOL. I. -35 ['olO] 546 LIABILITY FOR CONTRACTORS, AGENTS, ETC. [PART YI. attempted * to carry out the analogy of principal and agent, or master and servant, as between natural persons, and to apply strictly the principle of respondeat swperior."' (c) assault on a stranger, a theft, or any other act wholly disconnected with his employment, the master is not liable. This is the view taken of this subject by Reeve in Reeve Dom. Rel. 358, 359, 360, and it is, we think, the only consistent and rational one, and the one which must ultimately prevail. It is virtually adopted, in regard to corporations, in England. Queen v. Great North of England Railway Co., 9 Q. B. 015. In State v. Vermont Central Rail- road Co., 27 Vt. 103; Maund v. Monmouthshire Canal Co., 4 M. & G. 452, it is held, that trespass will lie against a corporation for the act of its servant. Tliis is familiar law in the American courts. And it is not deemed of any importance that the agent should act by any particular form of appoint- ment; and it would be strange if the liability of the corporation could be made to depend upon the intention of the agent. This distinction is not claimed to be of any importance where the company owe a duty, as carriers of freight or passengers, for there the corporation is liable for all the acts of its servants; but for the acts of its servants in regard to strangers, it has been claimed there is no liability where the servant acts wilf ullj^ unless the corjiora- tion directs or affirms the act of the servant. And to this we may assent, in a qualified sense. The corporation does virtually assent to all the acts of its agents and servants, done in the regular course of their employment. A rail- way or any business corporation exists and acts only by its agents and ser- vants, and by putting them into their places, or suffering them to occupy them, the company consents to be bound by their acts. Thus, a conductor or engineer of a railway, while he acts with the instruments which the com- pany puts into his hands is acting instead of the corporation, and his acts will ' Sherman v. Rochester & Syracuse Railroad Co., 15 Barb. 574, 577; Vanderbilt i'. Richmond Turnpike Co., 2 N. Y. 479. In the latter case, it was held tliat the company was not liable for the trespass committed by its servants, although the act was directed by the president and general agent of the company, he having no authority to command an unlawful act. The same rule is laid down in Lloyd v. New York, 1 Seld. 309; Ross v. Madison, 1 Ind. 281. And in an English case, Storey v. Ashton, 17 W. R. 727; s. c. Law Rep. 4 Q. B. 476, it was held that the master was not liable for the act of his servant, in driving a cart against another in the street, where the servant had left the business of the master and gone some distance on his own busi- ness, when the accident occurred, s. v. Little Miami Railroad Co. v. Wet- more, 19 Ohio St. 110. (r) Where a conductor returned to guage, he was held not acting in the a car and asked a passenger why he discharge of his duty, and the com- did not get off at the station for which pany was held not liable. Parker v. he had a ticket, the train not having Erie Railway Co., 5 Ilun, 57. stopped there, and used insulting Ian- [*511] § loO.] LIABILITIES IN RKGAUI) TO AGENTS AND SERVANTS. 547 * G. But tlicy seem to have lost sight of, or not siinieiently to have considered, one peeuliurity of this niodt- of transportation of bind the corporation, whether done negligently or cautiously, heedlessly or purposely. It would be anomalous to hold the company liable for cattle killed carelessly on the track, but not for those killed purposely by the engineer, or other sfrvants of the company. It is probably true, that if tlie engineer should kill cattle, in any way wholly disconnected with his employment, either on the land of the company or of others, the company could not be made liable; but if the engineer should destroy them wilfully, by rushing the engine upon them, the company would be liable undoubtedly, if any one were, of which there can be little question. So the company might not be lial)Ie if the engineer should drive the engine upon another road and there do damage, when his employment extended to no such transaction. The case of South- eastern Ilailway Co. v. European & American Telegraph Co., 9 Exch. 363, seems to have adopted, in principle, the view for which we contend. The act here complained of was, boring under the railway, and it was held that the company had no right to do it, and was liable, in trespnsx, for this unauthorized act of its servants. See also Sinclair v. Pearson, 7 N. H. 219, L''27, opinion of Parker, C. J.; Philadelphia & Reading Railroad Co. r. Derby, 11 How. 1G8, 4S3, Grikr, J.; Case of the Druid. 1 W. Rob. Adin. 3^1, opinion of Dr. Lusiii.VGTOX reviewing the cases. "We do not veiy well see why the railwiiy is not liable to the veiy same action which the servant would be, because his act is the act of the corporation, within tlie range of his employment. See Sharrod v. London & Xortliwestern Railway Co., -1 E.xch. 580, where, for running over sheep on the track, it is held that the action must be case. The distinction between tliis case and that of Southeastern Ilailway Co. v. European & American Telqgraph Co., supra, is not very obvious, unless we suppose in the latter case a vote of the corporation, which is highly improbable. See Philadel[)hia Railroad Co. r. Wilt, 4 Wliart. 113, where it is said the action should be case, and that trespass will not lie unless the act is done by the command or with the assent of tlie cor{)<)ratiou, which could never occur. Corporations do not vote such acts. A vote of a corporation that its engineers should run its engines over cattle would be an anomaly. In Sloath v. Wilson, 9 C. & P. G(»7, where a servant had been driving his master's carriage, and being directed to return to the stable, or while that was his duty, in the ordinary course of his employment, lie went out of his way with the carriage, to do some errand of his own, and drove against a person negligently, it was held that the master was liable, this being the act of the servant, in the course of his employment, because the injury was done with the master's horses and carriage, which he put into the servant's hands. Rut here the servant was far more obviously going aside from liis employment than in the supposed case of his assumincr to do a wil- ful wrong in the direct course of his ordinary employment. This case cer- tainly cannot stand with the ar^fument of the court in M'Manus r. Crickett. And yet it is confirmed by other cases. Joel v Morrison. G C. & P. .^t'l. Any different view of this subject will bring us back to the earlier theory of the re- [•512] 548 LIABILITY FOR CONTRACTORS, AGENTS, ETC. [PART VI. freight and passengers, — that the superior is virtually always present, in the person of any of the employds, within the range of lation of corporations to their servants; that corporations are not liable for torts committed by their servants, they having no authority to bind the coi*poration by unlawful acts. There is an elaborate case in Maine, State v. Great Works ^lill & Manufacturing Co., 20 Me. 41, taking precisely the old view of the liability of corporations for the acts of their servants, where the act proves unlawful. But most of the later cases hold the company liable for the torts of its agents, done in the course of the agency. But the company is not liable for injuries to persons or property through the recklessness and want of com- mon care and prudence of such persons, or property, as where a slave lies down to sleep on the track of a railway and is run over by a train of cars, it not being possible to see him twenty feet away on account of the grass on the track. Felder v. Railroad Co., 2 McMul. Eq. 403. See also Mitchell v. Crassweller, 13 C. B. 237; s. c. 16 Eng. L. & Eq. 448; Leame i;. Bray, 3 East, .593; Claflin v. Wilcox, 18 Vt. 605, where the principles involved in this inquiry are examined. Smith v. Birmingham Gas Co., 1 A. & E. 526. In two cases in Connecticut, Crocker v. New London, Willimantic, & Palmer Railroad Co., 24 Conn. 249, and Thames Steamboat Co. v. Housatonic Railroad Co., 24 Conn. 40, the general proposition is maintained, that railway companies are not liable for acts done without the command of the agent having the superior control in that department of the company's business, and out of the range of the particular employment of the servant doing the act. This seems to be a sound and ju.st proposition. See also Giles v. Taff Yale Rail- way Co., 2 Ellis & B. 822; Glover v. London & Xorthwestern Railway Co., 5 Exch. 66. In Illinois Central Railroad Co. r. Downey, 18 111. 259, it is said that case cannot be maintained against a corporation for injuries wilfully and intention- ally committed by its servants, and not occasioned in the course of their em- ployment in the pursuit of their regular business. The judge, in laying down the proposition, seems to found himself upon the form of the action. But if any action will lie against a corporation for the wilful mi.sconduct of its agents, we do not see why it may not be that which is ordinarily brought against natural persons for similar injuries. But the proposition laid down in the case is not entirely clear. The act of a servant may be in the direct course of his employment and business, and still be wilful, and that was the very case before the court, if the act was done wilfully. And where a passen- ger got into an altercation with the baggage-master and so provoked him that he gave the passenger a blow, it was held that the company was not responsi- ble. Little j\Iiami Railroad Co. v. W^etmore, 19 Ohio St. 110. In Bayley v. Manchester, Sheffield, & Lincolnshire Railway Co., Law Rep. 7 C. P. 415, this question seems to be placed on its true ground. The declaration con- tained counts in both trespass and case. The facts were that the plaintiff had procured his ticket and was in the right carriage. But just before the train started he inquired of one of the porters of the company if he was in the right carriage and the porter told hira he was not and he must come out, and [*512] § 130.] LIADILITIKS IN lUCUARI) TO AGENTS AND PERVANTS. .'349 the employment, as much so as is practicable in such cases. An3. 13 WliiU-fu'1.1 r. Southeastern Railway Co., Ellis, B. & E. 115. i-* riiilatlelphia, ^^'ilIlli^gton, & lialtiinore Kailroad Co. v. QuiLjloy. 21 How. 202; s. c. 2 Rcdf. Am. Kailw. Cas. 330. (d) Retention and promotion of West Boint Railroad Co., oS Ga. 210. the servant in his employment after And immediate notice to the con- notice of the commission of the act dnctor of misconduct by a brakeman com[ilained of, is ratification. Bass r. is notice to the company. B.xss r. Chioago & North western Railway Co., Chicairo & Northwestern Railway Co.. 42 Wis. Col; Casway v. Atlanta & supra. [•Olo] 552 LIABILITY FOR CONTRACTORS, AGENTS, ETC. [PART VI. road have that effect. And an agent can do no act not within the corporate powers, nor can the corporation ratify any such act.^^ 13. Where the statute requires the directors of a corporation to certify the fact of the capital stock being paid into the treasury in cash, and this is done, when in fact the payment was made in property of uncertain value, such certificate is false, and the directors responsible for the debts of the company, under the statute imposing that penalty for making a false certificate in that respect. 1^ 14. A gas company chartered for the purpose of lighting the streets and buildings of a town, is not obliged to supply gas to all persons having buildings on the line of their pipes, upon being tendered reasonable compensation.^" 15. In one case ^^ it is said the company are responsible for a * false imprisonment committed by its agents, and no authority under seal is requisite ; but there must be evidence justifying the jury in finding that the company's servants who did the act had authority from the company to do so. In this case the plaintiff had been taken into custody by the servants of the company, and by direction of the superintendent of the line, carried before a magistrate, and charged with an attempt to travel in one of the 15 Downing v. Mount Washington Road Co., 40 N. II. 230. 1° Waters v. Quimby, 3 Dutcher, 108. ' 1" Paterson Gas Light Co. v. Brady, 3 Dutcher, 2-45. 18 Goff V. Great Northern Railway Co., 3 Ellis & E. 672; s. c. 7 Jur. x. s. 286. But where the station-master ordered the owner of a horse into custody till it could be ascertained if his claim that the horse was to be carried free of charge was well fouuded, it was held that, as there could be no pretence of the company's having any claim to make any such arrest, it could not be held lia- ble for what was so manifestly a mere tort of the servant. Poulton r. London & Southwestern Railway Co., Law Rep. 2 Q. B. 53i. But where the servant of a railway company does an act of force towards another, in the due course of his employment, or under discretionary authority from the company, as in expelling a passenger from the cars for not paying fare, under a mistake of the fact, or with needless violence, the company is responsible, and the action may be against the servant and corporation jointly. Moore v. Fitchburg Railroad Co., 4 Gray, 4G5. But the president of the company is not liable in sucli case for merely transmitting tiie general authority of the corporation to the servant, but would be if he originated the particular order. Hewett v. Swift, 3 Allen, 420. See St. John v. Eastern Railroad Co., 1 Allen, 544. So, too, the company is responsible for any negligence or misconduct of its servants, in the course of their employment, in assisting passengers to alight from the cars. Drew v. Sixth Avenue Railroad Co., 40 X. Y. 429. [*516] § 130.] LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 5;j3 conii)aiiy's carriatres witliout havinj^ first paid liis fare and pro- cured a ticket. The fact was, he had ])aid his fare and procured a ticket and niishiid it at home, and by mistake, taken another ticket accidentally laid in the same j)lace. He explained the trans- action to the company's servants, and declined to j)ay fare a^rain, because he had not the means, but oflered to pawn some of the tools of his trade which he had with him. The court held, that, as some one must have authority to act for the company in such emergencies, the superintendent of the line must be regarded as having that authority. The jury gave a verdict for the j)laintill' for X50 damages, and the court declined to intei-fere on the ground that they were excessive. The wonder is that any one should have had any hesitation in regard to the acts of the agents who thus acted in matters representing the company. It should be considered in all cases, that where a servant of any corporation docs any act coming fairly within the scope of the business in- trusted to him, it must be held binding upon the company. IG. It seems to be considered that railway companies may be responsible where injury to passengers, or others rightfully there, occurs in consequence, for allowing a dangerous animal to re- main about their stations after they have suHllcicnt knowlcdLro of its * vicious i)ropensities. But the fact that a stray dog had torn the dress of one ])assenger a few hours before, and attacked a cat soon after, and been driven from the station by the servants of the company, and soon after returned and bit the itlaintiiV, will not be suflicient to render the company responsible. ^'•' l>ut where injury occurred from the bite of a dog kept about the staliles of a horse railway company, by a person employed by them and having charge of their stables, and with the knowledge and imjdied assent of their superintendent, it Avas held that the com|)any might i)roj>- crly be regarded as the keeper of the dog, and responsible under the statute for double the danuiges sustained by the bile.''^ 17. The general uuuiager of a railway has authority to oind the company to pay for medical attendance on a servant of the coin- l)any, injured by an accident in (lu'ir employment.-' 1^ Smith I'. Great Eastern Railway Co., Law Hop. 2 V. P. 1. -0 Barrett v. IMalden & Mehose Railway Co., 3 Allen. 101. 21 Walker v. Great AVestern Railway Co., Law Rop. 2 Exch. 22S; 8. P. Toledo, Wabash, & Western Railroad Co. v. Rodriguos, 47 111. ISS. See infra, § 182, pi. 4, note 5. [•517] 554 LIABILITY FOR CONTRACTORS, AGENTS, ETC. [PART VI. 18. But the general superintendent, manager, or managing director, has no authority to bind the company to a secret and fraudulent diversion of the funds or earnings of the company by any of the subordinate employes or servants.^ SECTION III. Inj^iries to Servants ly neglect of Fellow-Servants, and use of Machinery. \. In general, company not liable to ser- vant for negligence of fellow-ser- vant. 2. Otliervvise if at fault in employing un- suitable servants or macliinery. 3. Not liable for deficiency of help or for defect in fence, whereby cattle come on road and throw engine from track. 4. Quare, whether the rule applies to ser- vants of different grades. n. (g) Fellow-servants within the mean- ing of the rule, who are. 5. Principal rule not adopted in some states, nor in Scotland. G. Ship-owner does not impliedly con- tract with seaman that siiip is sea- worthy. 7. Rule does not apply where ser%'ant has no connection with the particular work. 8-10. Cases, English and American, il- lustrating the accepted doctrine. 11. Company may show in excuse, that the damage accrued through disre- gard by fellow-servant of settled rules. 12. Servants of one company, not fel- low-servants with those of anotlier company, using the same station where the injury occurred. 13. Injury caused by intoxication of fel- low-servant. Proof of knowledge by company, that servant is an habitual drunkard, tends to show culpable neglect. 14. Employer liable where his own negli- gence concurs with tliat of fellow- servant. § 131. 1. It seems to be now perfectly well settled in England, and mostly in this countr}-, that a servant, («) who is injured by ^- Concord Railroad Co. v. Clougli, 49 X. H. 2'u. The facts in this case were that the rules established by the directors required the conductors to add ten cents to the fare whenever it was paid in the cars. The defendant, a con- ductor, received fares at a less amount than the rules required, and did not enter them on the daily way-l)ills filed in the ticket-master's oflice, but expended the money in the purchase of tickets at the ticket-offices, and after punching them, to indicate that they had been taken of passengers, in the (n) As to -who are servants, see road Co., 3 Thomp. & C. 288; Sloan Bradley v. Xew York Central Rail- v. Central Iowa Railroad Co., 11 Am. [*517] § 131.] INJURIES BY FELLOW-SERVANTS. 555 the * negligence or misconduct of his fellow-servant^ can maintain no action against the master for such injury.^ (i) ordinary course of business, returned tiieui with liis other tickets taken up. This was done by the consent of the superintendent, but purposely kept from the knowledge of the directors. lie also, by purchasing joint tickets uf other roads and selling them to passengers, deprived the company of benefits ari>ing from the sale of its own tickets, to a large amount. 'Jhis also wa,s done by consent of the superintendent, but without the knowledge of the directors. The conductor was held responsible. ^ Priestly v. Fowler, 3 M. & W. 1 ; Hutchinson v. York, Newcastle, & Ber- wick Railway Co., 5 Exch. 313; Wigmore r. Jay, 5 Exch. 3.">4; .'^kip v. Eastern Counties Railway Co., 21 Eng. L. & Eq. 30G; Farwell i-. Boston & Worcester Railroad Co., 4 Met. 49; Murray r. South Carolina Railroad Co., 1 McMul. 385; Browu u. Maxwell, G Hill, X. Y. 592; Coon v. Syracuse & I'tica Rail- road Co., G Barb. 231; s. c. 1 Seld. 492; Hayes v. Western Railroad Co., 3 Cush. 270; Sherman v. Rochester & Syracuse Railroad Co., 15 Barb. 574; McMillan v. Railroad Co., 20 Barb. 449; Ilonner v. Illinois Central Railroad Co., 15 111. 550; Ryan v. Cumberland Valley Railroad Co., 23 Renn. St. 3S4; King c. Boston & Worcester Railroad Co., 9 Cush. 112; Madison & Indian- apolis Railroad v. Bacon, G Ind. 205. The same rule prevails in Virginia. Ilawley c. Baltimore & Ohio Railroad Co., G Am. Law Reg. 352. & Eng. Railw. Cas. 145. A mere volunteer, one, e. g., who gets upon a train and applies a brake to stop it, is not. Everhart v. Terre Haute & In- dianapolis Railroad Co., 78 Ind. 292. But as to who may be deemed a mere volunteer, see Wright v. London & Northwestern Railway Co , Law Rep. 1 Q. B. 252, where a consignee wa.s injured while helping to move a car so that he could get at his freight, and was held not barred of his action. See also Blair i*. Grand Rapids & In- diana Railroad Co., 24 Am. & Eng. Railw. Cas. 430, where a stranger stopping a train at request of conduc- tor of another train, and injured in attempting to get on tlie train while it was moving, was held a volunteer, and the company was held not liable. An infant, unless of tender years, is bound by the rules which govern in case of an adult. Houston & Great Xorthern Railroad Co. r- ^liller, 51 Tex. 270. But see Hamilton r. Gal- veston, Harrisburg, & San Antonio Railway Co., 54 Tex. 550, where it was held that the company was lia- ble to the mother of an infant of fif- teen injured through the negligence of a fellow-servant. Whether the company can relieve itself from all liability to servants for pensonal injuries, however cau.sed, see Darrigan t'. New York & New Eng- land Railroad Co., 52 Conn. L'85. There is no general liability on the part of the company to pay f«)r surgi- cal aid, but it may be proper in caj»e of emergency; and wliore a trainman is injured at a distance from tht* prin- cipal office of the comp.iny. and there is urgent need of a surgeon, tlie con- ductor, if the highest agent of the company on the ground, ni.iy bind the company to j^ay for one. Terre Haute & Inilianaix>lis Railroad Co. r. Mc .Murray, OS Ind. 3.">8. (/;) Totten r. Pennsylvani.i Rail- road Co., 11 Fed. Rej.. 501; lirabbits [•518] 556 LIABILITY FOR CONTRACTORS, AGENTS, ETC. [PART VI. 2. But it seems to be conceded, that if there be any fault in the selection of the other servants, or in continuing them in their places after they have proved incompetent, perhaps, or in the employing unsafe machinery, tlie master will be answerable for all injury to his servants, in consequence.^ (c) 2 Shaw, C. J., 4 Met. 49, o7; Keegau v. Western Railroad Co., 4 Seld. 175. But it makes no difference in regard to the liability of the company that xu Chicago & Northwestern Railway Co., 38 Wis. 2S9; Michigan Central Railroad Co. v. Dolan, 32 Mich. 510; Houston & Great Northern Railroad Co. V. Miller, 51 Tex. 270; Dobbin v. Richmond & Danville Railroad Co., 81 N. C. 44G; Hogan v. Central Paci- fic Railroad Co., 49 Cal. 128; Kansas Pacific Railroad Co. v. Salmon, 11 Kan. 83; Gartland v. Toledo, Wabash, & Western Railroad Co. , 67 111. 498. And see Hough v. Texas & Pacific Rail- way Co., 100 U. S. 213. This general rule involves no federal question and is not open to denial in the federal courts more than elsewhere. Dillon t". Union Pacific Railroad Co., 3 Dil. 319. But it applies only where the servants are in the same employment, i. e., in the same department of duty. King V. Ohio Railroad Co., 14 Fed. Rep. 277. Or in the same enterprise under the same master. New Orleans Railroad Co. v. Hughes, 49 Miss. 258. Or an enterprise in which the same in- strumentalities are employed. Valtez V. Ohio & Mississippi Railroad Co., 85 111. 500. And see Mobile & Montgom- ery Railroad Co. v. Smith, 50 Ala. 245. It does not apply where the servant whose act is complained of stands toward the servant injured in the rela- tion of a superior or vice-principal. Hough V. Texas & Pacific Railway Co., supra; Miller v. Union Pacific Railway Co., 17 Fed. Rep. G7; Gravelle v. Min- neapolis & St. Louis Railway Co., 11 Fed. Rep. 569; Cowles v. Richmond [*518] & Danville Railroad Co., 84 N. C. 309; Ragsdale v. Memphis & Charles- ton Railroad Co., 3 Baxter, Tenn. 426. And if the negligence of the company has a share in causing the injury, con- tributory negligence of a fellow-servant will not relieve the company from lia- bility. Grand Trunk Railway Co. V. Cummings, 166 U. S. 700; Elmer V. Locke, 135 Mass. 575. And see Thompson v. Chicago, Milwaukee, & St. Paul Railway Co., 18 Fed. Rep. 2-'59. And on the whole, the rule of Priestly v. Fowler (supra, note 1), would seem to be becoming gradually modified, a greater number of local superintendents, heads of dejiart- ments, kc, being held to stand in the place of the principal, tlius more fully meeting the ends of justice. See also Nashville, Chattanooga, & St. Louis Railroad Co. v. Wheless, 10 Lea, Tenn. 741, where it is held that the master is liable where one servant is the immediate superior of the other. And see Gilmore v. Northern Pacific Railroad Co., 15 Am. & Eng. Railw. Cas. 304; Chicago & Alton Railroad Co. V. INIay, 15 Am. & Eng. Railw. Cas. 320; Hannibal & St. Joseph Railroad Co. v. Fox, lb. 325; Mis- souri Pacific Railroad Co. v. Watts, 63 Tex. 549; Hake v. St. Louis, Keokuk, & Northwestern Railroad Co., 25 Am. & Eng. Railw. Cas. 463. See further the cases collected, infra, note (fj). (r) ^Mobile & Montgomery Rail- j5 lol.] INJUUIRS UY FKLLOW-SKRVANTS, 5o7 * In Frazicr v. The Pennsylvania Railway Company,' it was held, that if the company knowingly or carelessly emjjloy a rash the person came into the service voluntarily, to assist the servants of the com- pany in a particular emei-geucy, and was killed by the negligence of some of the servants. Degg v. Midland Railway Co., 1 II. & N. 77;J. It is .said, Mc- Millan V. Saratoga iSc Washington Kailroad Co., "JU Harb. 119, that the servant, in order to entitle hin)self to recover for injuries from defective machinery, must prove actual notice of such defects to the master. But culpable negli- gence is sufficient, undoubtedly, and that is such as, under the circumstances, a prudent man would not be guilty of. I»Ji'n, note 10, § 131 ; Harper v. Indi- anapolis & St. Louis Railroad Co., 47 Mo. 567; Columbus & Indianapolis Cen- tral Railroad Co. i;. Arnold, 31 Ind. 174; Illinois Central Railroad Co. r. Jewell, 46 111. 99. The case 47 ]Mo. .067, was where the engineer was allowed tf) let the fireman take his place temporarily, when he considered him competent, and he proved incompetent, and the company was held responsible. IJut if the servant knows of the defects, and does not inform the master, or if the defects are known to both master and servant, and the servant makes no ob- jection to continue the service, he probably cannot recover of the master for any damage in consequence. But if the master knows of the defect, and directs the .servant to continue the service, in a prescribed manner, he is re- sponsible for the consequences. Mellors v. Shaw, 7 Jur. n. s. 845. Where the defendants were joint owners and workers of a coal-mine, and one of the employes was injured by a defect in the machinery, and it appeared that one road Co. v. Smith, 59 Ala. 215; known of the servant's incompetency. Houston & Texas Central Railroad Blake v. Maine Central Railroail Co., Co. I'. Myers, 55 Tex. 110; Pennsyl- 70 Me. 00; Ross v. Chicago, Milwau- vania Railroad Co. v. Roney, S9 lud. kee, & St. Paid Railway Co., 2 Mc- 453; Ohio & Mississippi Railroad Co. Crary, 235. Notice to master me- i'. Collarn, 73 Ind. 261 ; New Orleans, chanic who employed engine-drivers Jackson, &c. Railroad Co. v. Hughes, held notice to company of engine- 49 !Miss. 258; Smith v. Potter, 46 driver's incompetency. Ohio & ^lis- ^lich. 258. The care which the com- sissippi Railroad Co. v. Collarn, 73 pany should exercise in the selection Ind. 201. So of notice to general of employes is such as is fairly com- agent charged with duty of employ- niensurate with the perils likely to ing. Baulec v. New York & Harlem result from negligence or incompe- Railroad Co., 59 N. Y. 356. So of tency. Wabash Railway Co. v. Mc- notice to superintendent having gene- Daniels, 107 U. S. 454. Ordinary ral power of management. Hunting- care is not sufficient. Due care is don & Broad Top Mountain Railroad necessary. Alabama & Florida Rail- Co. v. Decker, 82 Penn. St. 119. So road Co. v. Waller, 48 Ala. 459. To of notice to road-master of incompe- render the company liable it should tency of .section foreman. McDormott appear that it knew or should have r. Hannibal & St Joseph Railroad 3 38 Penn. St. 104; Wright v. New York Central Railroad Co., 23 Barb. 80; Carle v. Bangor & Piscataquis Canal & Railroad Co., 43 Me. 269. [•olOJ 558 LIAIJILITY FOR CONTRACTORS, AGENTS, ETC. [I'ART VI. or incompetent conductor, whereby the brakcman on the train is injured, the company are responsible for the injury ; that the act of the defendants personally interfered in the management of the colliery, and the jury found that defendant guilty of personal negligence, it was held sufficient to implicate both defendants, as they must be presumed to have known that improper niachinery was being emploj-ed. Ashvvorth v. Stanwix, 30 Law J. Q. B. 183. But see Wright v. New York Central Railroad Co., 28 Barb. 80; infra, note 3, 20 ; Morgan r. Vale of Neath Railway Co., Law Rep. 1 Q. B. 149. Tiie company was held responsible for an injury to one of its servants caused by want of repair in the road-bed. Snow v. Housatonic Rail- road Co., 8 Allen, 441. But the company cannot be held as guarantors to its servants that the structures continue in proper condition. If originally prop- erly built and properly inspected from time to time, it is all that can be re- quired. As, for instance, if a servant is killed by the falling of a bridge, properly constructed, and carefully inspected the day before, the company is not responsible. Faulkner v. Erie Railway Co., 49 Barb. 324; Warner r. Same, 8 Am. Law- Reg. n. s. 209. The general doctrine of the text is main- tained and illustrated in Harrison v. Central Railroad Co., 2 Vroom, 293; Weger ?'. Pennsylvania Railroad Co., 5.5 Penn. St. 460; Shauck v. Northern Cen- tral Railroad Co., 25 Md. 462; Pittsburg, Fort Wayne, & Chicago Railroad Co. V. Devinney, 17 Ohio St. 197; AVarner v. Erie Railway Co., 39 N. Y. 468. And if the master uses reasonable precautions and efforts to procure safe and skilful servants, but, without fault, happens to have one in his employ through Co., 73 jNIo. 516. Notice to caller of conductors of a conductor's special temporary incompetency, held not no- tice to the company. Michigan Cen- tral Railroad Co. i\ Dolan, 32 Mich. 510. If the servant is so grossly and notoriously unfit that it is negligence not to know his unfitness, the law pre- sumes notice. Chicago, Rock Island, & Pacific Railroad Co. v. Doyle, 18 Kan. 58. But if the fellow-servant having full notice of such incompe- tency continues in the service without effort at the correction of the same, he is deemed to acquiesce, and waives his right against the company. Lake Shore & ^Michigan Southern Railway Co. V. Knittal, 33 Ohio St. 4GS. But see Hoey v. Dublin & Belfast Junc- tion Railway Co., 5 Ir. Com. Law, 206, where it is said to be but evidence of contributory negligence for the jury. The rule that a servant takes the rii-k [*519] of the negligence of fellow-servants has no application in case the injury is caused by the negligence of a servant of a connecting line. Philadelphia, Wilmington, & Baltimore Railroad Co. V. Maryland, 58 Md. 372. The principles which govern in cases of injury resulting from defects in roadway, machinerj', &c., are to some extent the same which govern in cases of injury from negligence of fellow-servants. Thus the company is bound to a certain degree of care to provide roadway, machinery, &c., which the employe may safely use. The company is not liable merely because contrivances used in operat- ing the road are dangerous. Gould V. Chicago, Burlington, & Quincy Railroad Co., 22 Am. & Eng. Railw. Cas. 289. But where the service is dangerous the company should use all reasonable and uecessarv means to § l;Jl.] INJLIULS DY rKLLOW-SKRVANTS. 659 of the agent of (he company having charge of employing such agents or servants, and of dismissing them for incompetency, is whose incompetency damage occurs to a fellow-servant, tlie master is not lia- ble. Tarrant v. Webb, 18 C. B. 797. In Dynen v. Leach, 20 Law J. n. «. Exch. 221, it was decided, that where an injury happens to a servant in the course of his employment in the use of machinery, of the nnture of which he is as much aware as his master, and the use of wiiich is tlie proximate cause of tlie injury, the servant cannot recover, nor, if death ensues, can his jierso- nal representative recover of the master, there being no evidence of any per- sonal negligence on his part conducing to the injury. Nor does it vary the case that the master has in use in his works an engine, or machine, less safe than some other which is in general use, or that there was another and safer mode of doing the business, which had been discarded by his orders. And in Assop L'. Yates, 2 II. & X. 7G8, it was held, that if the servant knew of the exposure, and consented to continue the service, and suffered damage, he could not recover of the master for any negligence which might have contrib- uted to the result. And if one servant knows of the incompetency of another fellow-servant, and gives no information to the employer, but continues in the service, he cannot recover for any injury sustained through such incomjie- toncy. Davis v. Detroit & Miciiigan Railroad Co., 20 !Mich. lU.j. But if one of the servants of the company is injured in coupling cars, through defect in the apparatus, which was known to the superintendent, and about being laid aside on that account, but not known to the servant, and without fault on his part or that of any fellow-servant, the company is liable. Gibson v. Tacific Railroad Co., 4G Mo. 163. And where a boy, fourteen years of age, is set to tend a machine, in dangerous proximity to another machine, without being cautioned against the exposure, and he is in conseciueuce injured without any more incantion on his part than might naturally be expected of one in his position and of his age, the employer will be liable; but if the servant under- stand the peril, and voluntarily incur it, he cannot recover. Coomb i*. New Bed- ford Cordage Co., 102 ^lass. 572. A fireman injured by a dt*ft;ct in the engine, which had been brought to the knowledge of the mechanics employed in repair- ing such engines, but which they had failed to remedy in repairing the same, was held not entitled to recover of the company, without showing notice of the defect to some agent authorized to receive such notice on behalf of the company, and want of diligence in repairing the defect. Mobile & Ohio Railroad Co. r. Thomas, 42 Ala. 072. protect the employe. ]\Ii.ssouii racific to the servant while defects in the other Railroad Co. v. Watts, G:} Tex. olU. are not. However that may Im?, the Upon the cases, however, it would seem cases seem to hold companies to the use that the company is held to less care only of reasonable and ordinary care and diligence in providing safe road- to provide safe machinery, &c. War. way, machinery, &c., than in providing ner r. Western North Carolina Rail- careful fellow-servants, — for no very road Co., 25 Am. & Eng. Kaihv. Ca.s. obvious reason, unless it is a reason that 432; Jones v. New York Central & defects in the one are generally vi.sible Hudson River Railroad Co.. 22 Hun, [•olDJ 560 LIABILITY FOR COXTRACTORS, AGENTS, ETC. [PART YI. the act of the company ; (dZ) but the company are not responsible for such injury, unless they were in fault in employing or con- 284 ; Palmer v. Denver & Rio Grande Railway Co., 3 McCrary, G^Jo; Wedge- wood V. Cliicago & Northwestern Rail- way Co., 44 Wis. 44; Missouri Pacific Railroad Co. v. Lyde, 57 Tex. 505; Muldowney v. Illinois Central Rail- road Co., 36 Iowa, 4G2; Houston & Texas Central Railway Co. v. Dun- ham, 49 Tex. 181. See Tinney v. Boston & Albany Railroad Co., 62 Barb. 218. Not to the exercise of extraordinary care. Cooper v. Cen- tral Railroad Co., 44 Iowa, 134. Nor to the duties which devolve upon in- surers. Wabash, St. Louis, & Pacific Railway Co. v. Fenton, 12 Brad. 417; Michigan Central Railroad Co. i'. Smithson, 45 Mich. 212; Lake Shore & IMichigan Southern Railway Co. v. McCormick, 74 lud. 440. Nor is the company bound to make use of only the safest known appliances. Lake Shore & ]\Iichigan Southern Railway Co. V. McCormick, lb. ; Botsford v. Michigan Central Railroad Co., 33 Mich. 256. And see Toledo, Wabash, & Western Railway Co. v. Asbury, 84 111. 429. But the company is bound not only to furnish proper ma- chinery, &c., but to keep it in proper condition. Brann v. Chicago, Rock Island, & Pacific Railroad Co., 53 Iowa, 595; Kain v. Smith, 80 N. Y. 458. And in such condition as from the nature of the business the servant has a right to expect. Totten v. Penn- sylvania Railroad Co., 11 Fed. Rep. 564; Atchison, Topeka, & Santa Fe Railroad Co. v. Holt, 29 Kan. 149. And upon notice of any defect, to make proper repairs or changes. Gage V. Delaware, Lackawanna, & Western Railroad Co., 14 Hun, 446; Kidwell V. Houston & Great Northern Railway Co., 3 Woods, 313. And mere lack of notice will not excuse it, if such lack is due to want of care. Columbus, Chicago, & Indiana Central Railway Co. V. Troesch, G8 111. 515. Notice to a foreman in a repair shop may be notice to the company. Brabbits r. Chicago & Northwestern Railway Co , 38 Wis. 289. But if a servant con- tinue in his employment knowing or having the means of knowing of defects, &c., he is presumed to assume all con- sequences. Houston & Texas Central Railroad Co. v. Myers, 55 Tex. 110; Umback v. Lake Shore & Michigan Southern Railway Co., S3 Ind. 191; Baker r. Western & Atlantic Railroad Co., 55 Ga. 133; Price v. Hannibal & St. Joseph Railroad Co. , 77 Mo. 508. And see Jackson v. Kansas City, Law- rence, & Southern Kansas Railroad Co., 15 Am. & Eng. Raihv. Cas. 178. Unless he has been induced Ivy the com- pany to believe the defects will be rem- edied. Illinois Central Railroad Co. V. Jones, 11 Brad. 324; Texas & Pacific Railway Co. v. Kane, 15 Am. & Eng. Railw. Cas. 218. But if he sees that the defects have not been remedied, but still continues, he takes the risk again. Crutchfield v. Rich- mond & Danville Railroad Co., 78 N. C. 300. If, however, the defects are the result of the want of ordinary care, and are not so serious that the servant may not use the machinery with care, and the company requests him to use it, and he uses it with care, the com- {d) Tyson r. South & North Ala- 58 Tex. 276. And see Mobile & Mont- bama Railroad Co., 61 Ala. 5.54; goraery Railroad Co. t'. Smith, 59 Ala. Texas M. Railroad Co. v. Whitmore, 245. [*510] § 131.] INJURIES nY FELLOW-SERVANTS. JCl tinning the condnctor in tlioir service ; lliat the cliaractcr of such conductor for skill and faithfulness may he shown by general rei)utation.((^) 'J'hc master is not in general hound to use any special precautions to secure the servant from injury in regard to matters equally within the knowledge of hoth.* l]ut the master is liable for all injuries accruing to his servants imm his own personal negligence ; and this may consist in pers(jnal interfer- ence in the particular matter causing the injury, or by negliirently retaining incompetent servants, producing the injury.^ But a railway company is liable in damages for an injury resulting to any person lawfully using its road, from its neglect to introduce any improvement in its machinery or apparatus, which is known * to have been tested, and found materially to contribute to safety, and the adoption of which is within its power so as to be reason- ably practicable.'^ But in another case,' in an action by a servant against his master for injuries sustained by the explosion of a steam-boiler used in his business, the plaintiff introduced evidence * Seymour v. Maddox, IG Q. B. 026. 6 Onnoiid i;. Holland, 1 Ellis, B. & E. 102. « Smith V. New York & Harlem Railroad Co., 19 N. Y. 127. ' Cazyer v. Taylor, 10 Gray, 274. pany will be liable. Kansas City, St. Joseph, & Council Bluffs Kaihoad Co. V. Flynn, 78 Mo. 195. And see East Tennessee, Virginia, & Georgia Rail- road Co. V. Duffield, 12 Lea Tenn. 03; Sioux City & Pacific Railroad Co. V. Finlayson, 18 Am. & Eng. Railw. Cas. 08. Nor can a servant recover for an injury resulting from a risk usual to the business. Little Rock & Fort Smith Railroad Co. v. DufTey, 35 Ark. 002; Woodworth v. St. Paul, Miiuieapoli.s, & ^lanitoba Railway Co., 18 Fed. Rep. 282 , Pennsylvania Railroad Co. v. Wachter, GO >id. .'.95. Or in consequence of rides or methods with knowledge of which he engaged. Kelley v. Chicago, Milwaukee, & St. Paul Railway Co., 53 Wis. 74. And it will make no difference that (iiere was a safer way of doing the business. Naylor v. Chicago & Northwestern VOL. i. — rs Railway Co., 53 Wi.i. 601. Nor can the servant recover where he lias been guilty of contributory negligence, as by attempting to board a moving train. Dowell r. Vicksburg & Meri- dian Railroad Co., 01 Miss. 51f>. Or by shovelling under a bank of earth that it is likely to fall, knowing that it is likely. Simonds v. Chicago & Tomah Railroad Co., 110 III. 3!0; Rasmus.son r. Ciiicago, Uock Isl.ind, & Pacific Railroad Co.. 18 Am. & Eng. Railw. Cas. 51. It is not negligence per sc to walk along a moving train of flat cars. Atchison, To[H'ka, & .•^anta Fe Railroad Co. r. McCandlis.s 22 Am. & Eng. Railw. Cas. 2.03. (e) As to proof of nf^gligenec on other occasions, see Michigan Central Railroad Co. v. (Jilbert, 10 Mich. 176; Bauloc V. New York & Harlem Rail- road Co., 48 How. Pr. 390. [•520] 662 LIABILITY FOR CONTRACTORS, AGENTS, ETC. [PART VI. without objection, that there was no such fusible safety-phig on the boiler as was required by statute ; and the presiding judge excluded evidence of a custom among engineers not to use such a plug, and instructed the jury that if the defendant knowingly used the boiler without the plug, and the want of it caused the accident, the plaintiff was entitled to recover, and refused to in- struct them that if the defendant used all the appliances for safety that were ordinarily used in such establishments, he was not liable, although he did not use the fusible plug required by statute, and it was held the defendant had no ground of excep- tion. It is here declared by the court that ordinary care must be measured by the character and risks and exposures of the busi- ness, and the degree of care required is higher when life or limb is endangered, or a large amount of property is involved, than in other cases.^ 3. But the company are not liable because there was a defi- ciency of help at that point.® And a neglect in the company to fence their road, whereby the engine was thrown from the track, by coming in contact with cattle thus enabled to come upon the road, and a servant of the company so injured that he died, will not render them liable.^*^ (/) 4. But it has been questioned whether the rule has any just application to servants in different grades, Avho are subordinated the one to the other." But as the ground upon which the rule « Supra; see also Briggs v. Taylor, 28 Vt. 180, 184; s. c. 2 Redf. Am. Railw. Cas. 558. » Skip V. Eastern Counties Railroad Co., 9 Exch. 223; Hayes v. Western Railroad Co., 3 Cush. 270. 10 Langlois v. Buffalo & Rochester Railroad Co., 19 Barb. 364. But under the English statute the master has been held responsible for any omission of duty in making his business reasonably safe, whereby his servants suffered damage. Britton v. Great Western Cotton Co., Law Rep. 7 Exch. 130. " Gardiner, J., in Coon v. Syracuse & Utica Railroad Co., 1 Seld. 492; 8. c. 6 Barb. 231. But in Gillshannon v. Stony Brook Railroad Co., 10 Cush. 228, it was held to make no difference that the servants were not in a common employment. This was the case of a laborer riding on a gravel train to the place of his cmploj^ment, and injured by the negligence of those in charge of the train. In Wilson v. Merry, Law Rep. 1 H. L. 326, it was decided, that a master is not responsible for injury to a servant caused by the negligence of (/) If the servant knew of the want of a fence. Sweeney t;. Central Pacific Railroad Co., 57 Cal. 15. [*520] § 131-] INJURIES BY FKLLOW-SERVANTS. 663 * is attempted to be maintained is one of policy chiefly, that it is better to (lirow the hazard upon those in whose power it is to guard at^aiiist it, it seems very (piestionalile liow far any such distinction is maintainable. It has been attempted in a good many cases, but docs not seem to have met with favor.(//) a fellow-servant, by the mere fact that the latter is of a hif^hfr fn"ade, e. g., a superintendent, s. p. Felthani v. England, Law Rep. 2 il- U. :i3. But in Ilaynes v. East Tennessee & Georgia Railroad Co., ;j Cold. 222, a somewiiat different view was taken, the company being hold responsible for an injury to one of the subordinate servants by the carele.ssne.ss of the superintendent in starting a train at an unusual hour. And in Frost i;. Union Pacific Railroad Co., 11 Am. Law Reg. x. s. 101, where one servant, by the direction of a superior servant, undertook to do an act not in the usual course of his em- ployment, and was thereby injured through the negligence of the superior, the master was held liable. But where a brakeman was injured by the negligence of workmen in repairing the track, it was held they were so far fellow-servanta that he could not recover. Cooper v. Milwaukee & Prairie du Chien Railroad Co., 2.3 Wis. GG8. So, too, where a laborer on a construction train was in- jured by the engineer backing the train without a preliminary signal, it waa held he could not recover of the company, it being only the carelessness of a fellow-servant. Chicago & Alton Railroad Co. v. Keefe, 47 III. 108. ((/) The decisions as to whether servants are fellow-servants within the meaning of the rule, where they are not employed in precisely the same way, are numerous. It has been held that a conductor and a brakeman are fellow-servants. Smith v. Potter, 46 Mich. 258. So of engine-drivers on different engines. Chicago, St. Louis, & New Orleans Railroad Co. v. Doyle, 8 Am. & Eng. Railw. Cas. 171. So of an engine-driver and a fireman on the same engine. Henry v. Lake Shore & Michigan Southern Railway Co., 49 Mich. 40."). So of an engine-driver and a brakeman. Railway Co. v. Ranney, 37 Ohio St. GG.j; Nashville, Chattanooga, &c. Railroad Co. v. Wheless, 10 Lea Tenn. 741. Soof an engine-driver and a telegraph operator. Dana v. New York Central & Hudson River Railroad Co., 23 Hun, 473. Or a train despatoher. Darrigan v. New York & New Eng- land Railroad Co., 52 Conn. 28.3. See Phillips I'. Chicago, Milwaukee, & St. Paul Railroad Co., 23 Am. & Eng. Railw. Cas. 4.'33. So of an engine- driver and a road-mastor through whose negligence a switch is mis- placed. Walker v. Boston & Maine Railroad Co., 1 Am. & Eng. Railw. Cas. 141. So of an engine-driver and a laborer on gravel train. Kumler V. Junction Railroad Co., 33 Ohio St. l.">0. Or of such laborer and a brakeman on the train. Henry v. Staten Island Railway Co., 81 X. Y. 373. ( )r of a brakeman and a lalxirer employed in sotting tip a derrick used in widening the roadway. Holdon o. Fitchburg Railroad Co., 120 Ma-owncr, the seaman cannot maintain an action, by reason of the ship bo- coming leaky, and his being obliged to undergo extra labor,'*' VViggett V. Fox, 11 Exch. 832; s. c. ?,G Eag. L. & Eq. 480, tlie court adhere to the rule laid down in foi+iier English cases on this subject, reiterating the same reasons, with the qualification, that if there were any reason for holding that the persons whose act caused the injury were not persons of ordi- nary skill and care, the case would be different, there being an implied obliga- tion on the master not to employ such persons. With this qualification there seems to be no serious objection to the English rule. Bassett v. Nor- wich & Nashua Railroad Co., 19 Law Rep. 551. In a case in the Court of Sessions in Scotland, so late as January, 1857, the court repelled a plea, founded on the claim that the master is not liable to a servant for the negligence of a fellow-servant. The Lord Justice Clerk took occasion to remark, that the master's liability rested on the broad principle, that an em- ployer being liable to third parties for injuries caused by his servants, ii forllori he is liable to the servant for injury caused by another servant. But for injury to servants through obvious or known defects of machinery in the use of the master, unknown to the servant, but which the employer by the use of ordinary care could have cured, the cases all agree that he is liable. McGatrick v. Wason, -1 Ohio St. 5GG. In the Exchequer Chamber, so late as May, 1857, in Roberts v. Smith, 29 Law T. 1G9, it was held, that where the master directs the conduct of the servant, he is liable fur any injury result- ing therefrom to the other servants. See also Weyant v. New York & llarletn Railroad Co., 3 Duer, 360. It has been held in some cases, as in Sculies to the case of freemen. Walker v. Boiling, 22 Ala. 291; Cook v. Rarham, 24 Ala. 21. The court here were equally «livideair a building which is in a ruinous state, not known to t^e workmen and not discK>sed to the contractor, the employer is liable for all injury sustained by the contractor or his subordinates, tliough slaves, by reason of the {leril \x> which thoy are thus fraudulently exposed, but that he will not be held so liable if he inform the contractor of the peril to which he is exf>o.sed. Perry v. Marsh. 25 .\la. 059. 18 Couch t'. Steel, 3 E. & B. 402; s.c. 24 Eng. L. & Eq. 77. But if the [•524] 668 LIABILITY FOR CONTRACTORS, AGENTS, ETC. [PART VI. 7. But a carpenter employed by a railway company to build one of their bridges, and who took passage in their cars, by their directions, to go to a certain point for tlie purj)ose of loading timber to be used in building the bridge, and who was injured in the course of the passage by the negligent conduct of the train, is entitled to recover of the company, the plaintiff having no par- ticular connection with the conduct of the business in which he was injured.^'' 8. The English courts still maintain their former stand, that all the servants of the same company engaged in carrying forward the common enterprise, although in different departments, widely separated, or strictly subordinated to others, are to be regarded as fellow-servants, bound by the terms of their em]>loyment to run the hazard of any negligence or wrong-doing which may be committed by any of the number, so far as it operates to their detriment. This is strikingly illustrated in a case in the Com- mon * Pleas,^^ (/i) where it was held that one employed to pick up stones from off the defendant's line, and who, while returning in the evening, after his work was over, in a train driven by the defendant's servants, was injured by a collision caused by the negligence of those who had charge of the train, it being ono master might have known the exposure of the servant, but for his own want of ordinary care, as in the use of a defective locomotive engine, which ex- plodes and injures the servant, through defective construction, the master is liable for the injury. Noyes v. Smith, 28 Vt. 59. But where the danger is known to the servant and not communicated to the superior, or master, he cannot recover for any injury he may sustain in consequence. McMillan v. Saratoga & Washington Railroad Co., 20 Barb. 44D; Ilubgh v. New Orleans & Carrollton Railroad Co., 6 La. An. 495. '^'' Gillenwater r. Madison & Indianapolis Railroad Co., 5 Ind. 340; s. p. O'Donnell v. Allegheny Valley Railroad Co., 59 Penn. St 239. And where laborers on a railway were transported to and from their labor and meals on the gravel trains of the company, which they were employed in loading and unloading, but had no agency in managing, and in such transportation, by the gross negligence and unskilfulness of the engineer, were injured, it was held that the company was liable. Fitzpatrick v. New Albany & Salem Rail- road Co., 7 Ind. 430. But not where the servant is in fault in attempting to get on the train when in motion. Timmons v. Central Ohio Railroad Co., 6 Ohio St. 105. " Tunney v. Midland Railway Co., Law Rep. 1 C. P. 291; s. c. 12 Jur. N. 8. 691. (A) See supra, note (6). [*525] § 131.] INJURIES BY FELLOW-SERVANTS. 5G9 of the terms of tlic contract of liirinir Uiat lio shoiihj rotiirn in the defendant's train, conld not recover daniajrt^s of lln; ctMujKiny, as he and the person g-nilty of the neglij^a-nee resulting in the injury were fellou-servants engaged in a common enijihjyment, within Uie meaning of tlie rule of law apjjlicalile to the case. 9. This whole question is very clahorately reviewed in a case in Kentucky '^ which we shall here repeat, together with our own comments at the time npon the several propositions emhraced in the opinion, at the risk of some repetition, perhaps. Whore an employe npon a railway is injured hy the negligence of tlie engineer of the company, and is himself guilty only of such neglect and want of care as would not have exposed him to the injury but for the gross neglect of the engineer, and when the engineer might with ordinary care have avoided the injurv, he is not precluded from maintaining his action. "What is gross neglect in the engineer may be determined by the court, as a question of law, where there is no controversy in regard to the facts. In regard to those acts of a corporation which require care, diligence, and judgment, and which it performs through the instrumentality of general superintending agents, the corporation itself is to be regarded as always present, supervising the action of its agents. The rule of law, that the master is not responsible to one of his servants for an injury inflicted through the neglect of a fellow-servant, is not adopted, to the full extent of the English decisions, in the state of Kentucky. 'IMie rule is there regarded as anomalous, inconsistent with principle, analogy, and public policy, and unsupported by any good or consistent reason. In regard to all servants of the company acting in a sid)ordinatc sphere, the one class to another, and receiving injuries whih' in the performance of duties, under the command of a superior, whose authority they have no right to disobey or disregard, it is the same * precisely as if the injury were inflicted by the act of the company ; and if there is any want of care and skill in the superior, such as his position and duty reasonalily demand, the company arc responsible. In such cases there is no im|)lied undertaking on the part of the servant to risk the consequences of the misconduct of the agent of the company under whoso authority he acted, and through whose negligence he received tlie " Louisville & Nashville Railroad Co. v. Collins, 5 Am. Law Keg. N. s. 265; s. c. 2 Duvall, lU. [•52r.] 670 LIABILITY FOR CONTRACTORS, AGENTS, ETC. [PART VL injury. Servants so situated, in distinct grades of superiority and subordination, arc not to be considered as " fellow-servants," or "in the same service;" but rather in the light of strangers to each other's duties and responsibilities ; and the subordinate may recover of the company for any injury sustained by reason of the ordinary neglect of the superior. But if the subordinate is him- self guilty of any want of ordinary care, whereby he is more exposed to the injury, he cannot recover, unless the superior was guilty of wilful misconduct or gross neglect, but for which he might have avoided inflicting the injury, notwithstanding the negligence of the other party. Where, therefore, an engineer, while upon his engine, ordered a common laborer to do some needed work under the engine, in fastening bolts or screws belonging to it; and such workman, Avhile lying upon his back in the performance of the service, had both his legs cut off by the movement of the engine forward and backward, through the gross neglect or wilful misconduct of such engineer, the company are responsible for the injury, notwithstanding there might have been some want of ordinary care on the part of the subordinate, con- tributing to some extent to the injury, but not necessitating it, except through the gross misconduct of the superior. Per Robert- son, C. J. — We do not consider that the rule exempting the company from responsibility for injuries inflicted upon their ser- vants, through the want of ordinary care in other servants of the company, extends beyond those who are " strictly fellow-servants " in the same grade of employment, and where one is not subject to the order or control of the others. Beyond this the company is responsible for the consequences of the misconduct of superiors towards inferiors in its service, the same as towards strangers.^'' 20 This is an extended syllabus of the case, embracing all the points on which the opinion of the court is given, without regard to their being directly and necessarily involved in the decision of the cause. Notwithstanding the avowed willingness of the learned judge to disregard the general current of authority, and the apparent spirit of freedom with which he deals with the decisions, it has to be admitted that the opinion is entirely sound in its princi- ples, and maintained with uncommon ability in its logic as well as in its illus- trations. It is to be noticed that the learned judge declares unequivocally that the corporation is to be regarded as constructively present in all acts per- formed by its general agents within the scope of their authority, i. e., within the range of their ordinary employment. But the profession should be warned that the decisions ou the other side embrace a very large number of [*526] § 131.] INJURIES BY FELLOW-SEnVANTS. 571 * 10. The question is again reviewed by the same learned jiid;re who gave the wldoly-adniircd opinion in Farwcll v. iJoston & the best-considered English cases, and an almost equal number in tlio Ameri- can states; including all, so far as we know, with the exception of Ohio, Georgia, and Kentucky. And the decisions in the.se latter states are all placed on peculiar grounds, thereby virtually confessing the soundness of the general rule, that one cannot recover of his employer for an injury inflicted through the want of care in a fellow-.servant, employed in the same depart- ment of the master's business, and under the same general control. The con- sequences of mistake or misapprehension, on this point, have led many courts into conclusions greatly at variance with reason and the common instincts of humanity. The reasonableness and justice of this construction may, it is to be hoped, induce its universal adoption at no distant day. See supra, § TJO, pi. G, ct seq. and notes, and cases cited. In regard to the leading point involved in the Kentucky case, how far a servant is entitled to recover of the master for an injury inflicted by the neg- ligence or want of skill of a fellow-servant, the doctrine of exemption was first established in the Court of Exchequer in Priestly v. Fowler, .3 M. & W. 1, in 1SJ7. Tiie rule was adopted in this country in Massachusetts, in Farwell r. Boston & Worcester Railroad Co., 4 Met. 49, in 184"2, and sujiported by one of the ablest and most unexceptionable opinions ever delivered from the .American Bench, — an opinion which has commanded the admiration of the entire pro- fession, both Bench and Bar, in England and in America, and has been more extensively adopted and formally incorporated into the opinions of the Eng- lish courts than perhaps any other opinion of an American judge. This ca.so was preceded by that of ^lurray v. South Carolina Railroad Co., 1 .Mc.Mullan, 385; but the former has been regarded as the leading American case. Theso leading opinions have been followed by many cases reaching down to the present time, most of them occupied in the discussion of what were claimed to be exceptional circumstances. In England, there are, among a multitude of others, Hutchinson v. York, Newcastle, & Berwick Railway Co., 5 Exch. 343; Wigmore v. Jay, 5 Exch. 313, 3."j1; Skip v. Eastern Counties Raihv.iy Co., 9 Exch. 223; s. c. 21 Eng. L. & Eq. 39(5; Degg v. Midland Railway Co , 1 II. & N. 773; Tarrant v. Webb, 18 C. B. 797; 8, c. 37 Eng. L. & Eq. 2S1 ; Mellors v. Shaw, 1 B. & S. 437; s. c. 7 Jur. N. s. 845; Seymour r. Maddox. 1