CORNELL UNIVERSITY LIBRARY FROM Charles Ezri rornell Cornell University Library arV19458 Charter and its amendments, contracts fo 3 1924 031 307 642 olln.anx Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924031307642 CAPE COD SHIP CANAL COMPANY. CHARTER AND ITS AMENDMENTS, CONTRACTS FOR CONSTRUCTION, SUPREME COURT DECISIONS, ETC. BOSTON : Press op Rockwell and Chukchill, 39 Arch Strket. 188 7. % V/ ^ BOAED OF DIRECTORS CAPE COD SHIP CANAL COMPANY. Preaident, HoK. WILLIAM A. CLARK, Jb., Ltkit, Mass. Treasurer. SAMUEL FESSEITDEItr, Sandwich, Mass. EDWIN EBED, Boston, Mass. WILLIAM A. FRENCH, Boston, Mass. SIDNEY DILLON, Nbw York Citt. Gbn. CHARLES C. DODGE, Nkw York City. THOMAS RUTTER, New York City. ClerJe. WILLAED HOWLAND, Boston, Mass. Counael, SAMUEL W. McCALL, Boston, Mass. Engineer in Charge. CHARLES M. THOMPSON, C.E., Sandwich, Mass. Contractors. F. A. LOCKWOOD, Boston. SMITH & RIPLBY, Nbw York. CHARTER. [Chap. 259 of the Acts of the year 1883.] An Act to Incorporate the Cape Cod Ship Canal Company. Be it enacted, etc., as follows : — Section 1. William Seward, Jr., George S. Hall, Samuel Fessenden, Edwin Eeed, William A. Clark, Jr., Joseph T. Hoile, Walter Lawton, William F. Drake, William Parker, their associates and successors, are hereby made a corporation by the name of the Cape Cod Ship Canal Company, with all the privileges, and subject to all the liabilities set fdrth in all general laws which now are or may hereafter be in force relating to railroad corporations, so far as they may be applicable, except as hereinafter provided. Sect. 2. Said corporation may locate, construct, maintain and operate a ship canal, beginning at some convenient point in Buzzard's Bay, and running through the town of Sandwich to some convenient point in Barnstable Bay ; may locate, construct and maintain all such wharves, docks and other structures and works 6 CAPE COD SHIP CANAL COMPANY. as may be necessary for the convenient using of said canal ; together with the highways provided for by this act ; and in connection therewith may maintain and "Operate steam- vessels for transportation, or steam-tugs, or use any (rther means or methods for assisting vessels in their approach to and passage through and from the ■canal. fSee Sect. 7 of Chap 274 of the Acts of the yean- 1884, p. 22.] Sect. 3. Said corporation may lay out its canal, not exceeding one thousand feet wide, and shall file the location thereof within four months from the passage of this act, with tlie county commissioners for the county of Barnstable, defining the courses, distances and boundaries thereof, in the manner provided for filing railroad locations ; and said canal shall be com- menced within four months, and shall be completed within four years from the passage of this act, and if at least twenty-five thousand dollars be not expended in the actual construction thereof within four months from the passage of this act, this corporation shall tiiereupon cease to exist, except as provided in section forty-one of chapter one hundred and five of the Public Statutes. [See Sect. 1 of Chap. 274 of the Acts of the year 1884, p. 17, and Sect. 1 of Chap. 222 of the Acts of .the year 1887, p. 25.] Sect. 4. Said corporation may purchase or other- wise take land and materials necessary for making or CAPE COD SHIP CANAL COMPANY. t securiog its canal, breakwaters, basins, docks, wharves, locks, gates, highways or other structures and works referred to in section two, in the manner in which land or materials are taken for the construction of railroads. If not able to obtain such land or materials by agree- ment with the owner, it shall pay such damages there- for as the county commissioners or a jury upon appeal may estimate and determine. Sect. _5. Said corporation shall pay all damages occasioned by laying out, and making and maintaining its canal, and by taking any land or materials, as pro- vided in section four; and such damages shall, upon the application of either party, be estimated by the county commissioners in the manner provided in laying out, making and maintaining railroads ; and the resi- dence of one of said commissioners in the town of Sandwich shall not disqualify him from acting under the provisions of this act; and, when it is intended to take land or materials, such application shall be made before the actual taking or appropriation thereof. Sect. 6. Either party if dissatisfied with the esti- mate made by the county commissioners may, at any time within one year after it is completed and returned, apply for a jury to assess the damages. Upon such application the prevailing party shall recover legal costs, and the proceedings thereon shall be the same as is CAPE COD SHIP CANAL COMPANY. provided for the recovery of damages in laying out, making and maintaining railroads. Sect. 7. [See Sect. 2 of Chap. 222 of the Acts of the year 1887, p. 25. j It shall be the duty of the Old Colony Railroad Company so to alter its location, after adequate security satisfactory to the board of railroad coniinissioners is given to it by said canal company to protect it against and to pay all damages caused by so doing, as to cross the said canal but once, which crossing, and the loca- tion of the canal company at the crossing, shall be at a point to be fixed by the board of railroad commissioners in case the rail- road company and canal company do not agree upon the same, which point of crossing said companies are hereby authorized to fix. The board of raikoad commissioners, after due notice to all parties interested, and hearing of all who shall appear, shall also determine and prescribe in writing the time when and the manner in which the Old Colony Railroad Company shall alter its location so as to cross said canal at such point, and also the manner and the method in which the bridge for such crossing, and the draw in the same, together with the locks, if the hoard of railroad commissioners shall decide they are necessary, or other structures for the protection of, and the approaches to, said bridge shall be constructed ; and in maliing such alteration said railrortd corporation shall have all the powers and privi- leges, and be subject to all the duties, restrictions and liabili- ties set forth in all general laws relating to railroads, except that the damages of land-owners shall be assessed against and paid by said canal company, as in case of land taken for rail- road purposes. The Cape Cod Ship Canal Company shall thereupon proceed to build the railroad upon the new location, and complete tlie same in such manner and at such time as may be prescribed by the railro.id commissioners, and to their satis- faction, in case the parties do not agree upon the same ; and CAPE COD SHIP CANAL COMPANY. 9 shall pay all damages caused by the construction of said rail- road on such new location, and shall be liable for such damages as in case of the construction of railroads. The Cape Cod Ship Canal Company shall also build and maintain and keep in repair, to the satisfaction of the board of railroad commission- ers, a bridge across said canal, suitably protected by locks or otherwise, to the satisfaction of the said board, suitable for the passing of the railroad, and also for the passing of the highway at the point fixed upon as above provided, which said bridge shall have a suitable draw for the passage of vessels ; and said railroad company shall appoint a steady and discreet superin- tendent, and all necessar3' assistants for such drawbridge, who shall be paid by said canal company a reasonable compensation, to be fixed by the railroad commissioners. Said superintendent shall be experienced in the management of vessels, and shall have full control and direction of the passing of vessels tlirough the draw, and of trains over the bridge, and with said assistants shall be subject to such rules and regulations, not inconsistent with law, as said railroad and canal company shall from time to time prescribe- for the operation of said bridge ; but such rules and regulations shall be subject to approval and altera- tion by the said board of railroad commissioners. And said superintendent and assistants shall be subject to removal by said board of railroad commissioners. Sect. 8. The Old Colony Railroad Company shall have its location, not exceeding five rods in width, upon any land owned or located upon by said canal company, up to the said bridge, on each side thereof: provided, that all reasonable use of said location by the said canal company, for the purpose of operating its canal, and under the direction of 'the railroad commis- sioners, shall be permitted by the railroad company without payment of rent to the railroad company. 10 CAPE COD SHIP CANAL COMPANY. Sect. 9. The Old Colony Eailroad Company shall upon the completion and acceptance by the board of railroad commissioners of the newly constructed rail- road and bridge as above provided, allow and pay to the Cape Cod Ship Canal Company the value of such iron and other materials as may remain upon that portion of the line of said railroad which is to be given up ; such value to be determined" by the said board of railroad commissioners in case the parties do not agree upon the same. [Sect. 3 of Chap. 274 of the Acts of the year 1884, p. 20.] Sect. 10. Whoever unnecessarily opens or obstructs the draw without the consent of the superintendent, or without such consent makes fast or moors any scow raft or other vessel to said bridge within wake of the draw, shall pay a fine of not less than three dol- lars nor more than fifty dollars. Sect. 11. Whoever wilfully injures or damages said bridge, wharf or pier, or wilfully disturbs or hinders the superintendent in the discharge of his duties, shall forfeit for each offence a sum not exceeding one hundred dollars, and be further liable in damages to the Cape Cod Ship Canal Company. Sect. 12. The provisions relating to drawbridges contained in sections one hundred and forty-eight to one hundred and fifty-five inclusive, of chapter one CAPE COD SHIP CANAL COMPANY.'] 11 hundred and twelve of the Public Statutes, shall ex- tend to said bridge so far as applicable, except that a railroad train shall be allowed five minutes to cross said draw instead of fifteen minutes as provided in sec- tion one hundred and fifty of said chapter. And the same penalties and forfeitures provided in section one hundred and fifty-four of said chapter shall also be in force, and may be recovered of the Old Colony Kail- road Company, or any engineer, or any superintendent of said bridge, in like manner as therein provided for the violation of any of the provisions of sections one hundred and fifty one and one hundred and fifty-three of said chapter. Sect. 13. [See Sect. 4 of Chap. 274 of the Acts of the year 1884, p. 20.] The said canal company shall provide and maintain at North Sandwich and at West Sandwich, and at such points as may be designated by tlie county commissioners, a suitable ferry across their canal for passengers and teams, to be operated free from tolls under rules to be established by the county commissioners. Said canal company shall forfeit fifty dollars for each day it shall fail to provide and maintain such ferry, to be recovered upon complaint or indictment in the county of Barnstable, to the use of said county. Sect. 14. [See Sects. 5 and 13 of Chap. 274 of the Acts of the year 1884, pp. 21 and 24. j The said canal company shall also construct such highways to connect with the bridge and ferries provided for in sections seven and thirteen of this act, and such other highways as maiy 12 CAPE COD SHIP CANAL COMPANY. be necessai'}- to replace the highways destroyed by the construc- tion of Siiid canal, in such manner and at such time as the county commissioners for the county of Barnstable shall prescribe, upon each side of said bridge and ferries. After the completion of such highways, and their acceptance by the said countj- com- missioners, the said canal company shall not be responsible in any manner for the further maintenance of the same, except upon the location of said canal company. Sect. 15. The said canal company shall also make such suitable provision for the continuance of the her- ring fishery in Monument River and Herring Pond as the commissioners on inland fisheries may prescribe ; and in case of injury to any fishery shall pay to the owner thereof such damages as shall upon the appli- cation of either party be estimated by said commis- sioners on inland fisheries, in a manner similar, so far as may be, to that provided in laying out highways, and with a similar right of appeal to a jury, by pro- ceedings like those provided for in section six of this act. Sect. 16. The said canal company may establish for its sole benefit a toll upon all vessels or water craft, of whatever description, which may use its canal, at such rates as the directors thereof may determine ; and may from time to time regulate such use in all respects as the direc- tors may determine. Said corporation shall also furnish towage throuffh said canal for all vessels or water-craft which require it ; for which service it may establish, for CAPE COD SHIP CANAL COMPANY. 13 its sole benefit, a toll, at such rates as the directors thereof may determine. Sect. 17. Whoever fraudulently evades or attempts to evade the payment of any toll, lawfully established under section sixteen of this act, either by misrepresent- ing the register or draught of any vessel, or otherwise, shall pay a fine of not less than fifty nor more than five hundred dollars. Sect. 18. Whoever wilfully and maliciously ob- structs the passing of any vessel or steam-tug, or other water-craft, in said canal, or obstructs the approaches to said canal within two thousand feet of either extremity thereof, or in any way injures said canal, or its banks, breakwaters, docks, wharves, locks, gates, or other struct- ures or works, or anything appertaining thereto, or any materials or implements for the construction or use there- of, or aids or abets in such trespass, shall forfeit to the use of the corporation, for each offence, treble the amount of damages proved to have been sustained thereby, to be recovered in an action of tort in the name of the corpora- tion ; and may further be punished by fine not exceeding one thousand dollars, or imprisonment for a term not exceeding one year. Sect. 19. The capital stock of said canal company shall be divided into shares of one hundred dollars each ; and the amount of capital stock shall not be less than 14 CAPE COD SHIP CANAL COMPANY. two million dollars, and may be increased, from time to time, by vote of the corporation, to an amount, not ex- ceeding five millions of dollars. Said canal company may locate but shall not begin to construct said canal, or take any land or property therefor, until it shall have deposited two hundred thousand dollars with the treasurer of the Commonwealth, as security for the faithful performance of the obligations imposed by this act, and for the pay- ment of all damages occasioned by the laying out, con- struction and maintenance .of said canal, or by takino- any land or materials therefor, and also of all claims for labor performed or furnished in the construction of said canal, [see Sect. 4 of Chap. 222 of the Acts of the year 1887, p. 28] which sum shall remain with the treasurer until such time as said corporation shall have actually received jinto its treasury and expended the sum of one million dollars in the construction of said canal, and shall have produced proof sat- isfactory to the board of railroad commissioners, that it has set- tled all damages, incurred or to be incurred in the location and construction of said canal. And said corporation shall, within four months from the passage of this act, pay to the Commonwealth and to the town of Sandwich, all sums of money expended by them, or either of them, in the support and removal from the Commonwealth of any persons who were engaged in the construction of said canal in the year eighteen hundred and eighty. If such de- posit and payment shall not be made within, four months from the passage of this act this corporation shall there- upon cease to exist except as provided in section forty- one of chapter one hundred and five of the Public Stat- CAPE COD SHIP CANAL COMPAXY. 15 utes. The supreiae judicial court shall have jurisdic- tion in equity to apply said deposit to the payment of any dauiages caused by the laying out, construction and maintenance of said canal, and for all claims against said company for labor performed or furnished, and for land or materials taken or used in the construction of said canal. Sect. 20. [See Sect. 5 of Chap. 222 of the Acts of the year of 1887, p. 29. J Said canal company, bv a vote of a majority of its stockliolders, at a meeting called for the pm-pose, may issue coupon or regis- tered bonds, to provide means for funding its floating debt or ior the payment of money borrowed for any lawful purpose, and may mortgage or pledge as security for the payment of " such bonds a part or all of its real and personal property, or franchise. Such bonds may be issued in sums of not less than one hundred dollars each, payable at periods not exceeding twenty years from the date thereof, and bearing interest not ex- ceeding seven jier cent, a year, paj-ahle annually or semiannually, to an amount which, including that of the bonds previously issued, does not exceed in all the capital stock of the corporation actually paid in at the time ; and such bonds shall be recorded by the treasurer of said corporation in^ books to be kept in his office. Xo bond shall be issued unless approved by some person ap- pointed by the corporation for that purpose, who shall certily under oath that the bond is properly issued and recorded : pro- filed, /io«'(i'er,*that no bond shall be issued until the boai-d of raih-oad commissioners has issued a certificate, a copy of which shall be printed in each bond, that the total amount of bonds issued b}- said canal company, including the amount of bonds previously issued and certilie.l to by the board of railroad com- missioners, does n<\t exceed the amount of capital stock actually 16 CAPE OOD SHIP CANAL COMPANY. subscribed and paid in, and that the total^ amount of money re- ceived from the subscription to the capital stock of said canal company to an amount equal to the amount of bonds certified by said railroad commissioners has all been paid out in the lawful expenditures of the corporation. In case any such mortgage is executed to trustees, then all bonds secured thereby shall also bear the certificate of one or more of the trustees, that the same are so secured, and that the mortgage has been delivered to the trustees and duly recorded. Every such mortgage shall be re- corded in the registiy of deeds for the county of Barnstable. This section shall be subject to the provisions of sections sixty- two to seventy, inclusive, of chapter one hundred and twelve of the Public Statutes, so far as the same may be applicable. Sect. 21. Said corporation shall pay to the secre- tary of the Commonwealth, on receiving the certificate of corporation, the sum of fifty dollars ; and shall also pay to the treasurer of the Commonwealth such sum of money as shall be necessary to pay for the services and expenses of the board of railroad commissioners for performing the duties imposed on them under the provisions of this act. Sect. 22, The construction of the approaches to said canal from the present line of high-water upon tlie shores seaward at either end thereof, shall be sub- ject to the provisions of chapter nineteen of the Public Statutes, and said canal, when completed, shall be under the jurisdiction of the harbor and land commis- sioners. CAPE COD SHIP CANAL COMPANY. 17 Sect. 23. This act shall take effect upon its pas- sage. [Approved June 26, 1883.] [Chap. 274 of the Acts of the year 1884.] An Act in Relation to the Cape Cod Ship Cana-l Company. -Be U enacted, etc., as folloios : — Section 1. The Cape Cod Ship Canal Company, within _six months from the passage of this act, may vary the location of its canal, by altering the route thereof at or near Monument Station, so called, and thence extending the same to l^uzzard's Bay through Back River, so called, and may make other changes in its location, as already filed, subject to the provisions of this section. It shall pay all damages occasioned by laying out, making and maintaining its canal, or by taking land or materials therefor, and such damages on the application of either party shall be estimated by the county commissioners in the manner provided with reference to the laying out of railroads. Either party dissatisfied with the estimate of the county commis- sioners may, at any time within one year after it is completed and returned, apply by petition to the su- perior court for Barnstable County for a jury to assess the damages, and like proceedings shall be had thereon as in proceedings for damages for laying out of rail- 18 CAPE COD SHIP CANAL COMPANY. roads. Upon application to the county commissioners by either party for an estimate of damages, they shall, if requested by the owner, require the corporation to give security to their satisfaction for the payment of all damages and costs which may be awarded by them or by a jury for the land or other property taken ; and if upon petition of the owner and notice to the adverse party, the security appears to them to have become in- sufficient, they shall require the corporation to give further security to their satisfaction :. and all its right or authority to enter upon or use the land or other property, except for making surveys, shall be suspended until it gives the security required. Said canal com- pany may file with the county commissioners of the •county of Barnstable a written, withdrawal of any part or parts of the original location, describing the same by metes and bounds, and so far as the land or other prop- ■erty covered by said written withdrawal is concerned, damages may be recovered to the extent that any person has been injured by the proceedings in the manner here- inbefore provided. Sect. 2. [See Sect. 2 of Chap. 222 of the Acts of the year 1887, p. 25. J Section seven of chapter two hundred and fifty-nine of the acts of the year eighteen hundred and eighty-three is hereby amended so as to read as follows : Section 7. It shall be the duty of the Old Colony Railroad Company so to alter its loca- tion as to cross the said canal at such point or points as said rail- road company and said canal company may agree upon, or as a CAPE COD SHIP CANAL COMPANY. 19 board of three commissioners, to be appointed by the governor, with the' advice and consent of the council, after due notice and a public hearing, shall determine ; and no member of said board shall be a member of any of the present boards of commission- ers of this Commonwealth; and said board shall also determine the question whether said canal shall be crossed by a public highway, and, if so, at what point and in what manner; and in determining said questions said board shall consider the obstruc- tion of ti'aflS.c upon said canal and the general public convenience, and if such public highway is ordered, said company shall con- struct the same at the point and in the manner so determined. The board of railroad commissioners, after due notice to all parties interested and hearing of all who shall appear, shall also determine and prescribe in writing the time when and the manner in which the Old Colony Railroad Company shall alter its location so as to cross said canal at such point or points ; and in making such alterations said railroad corporation shall have all the powers and privileges, and be subject to all the duties, re- strictions and liabilities set forth in all general laws relating to raDroads, except that the damages of land-owners shall be as- sessed only against and paid by said canal company, as in case of land taken for railroad purposes. The Cape Cod Ship Canal Company shall thereupon proceed to build the railroad upon the new location and complete the same in such manner and at such time as may be prescribed by the raili'oad commissioners, and to their satisfaction, in case the parties do not agree upon the same ; and shall pay all damages caused by the construction of said railroad upon such new location, and shall be liable for such damages as in the case of the construction of railroads. Until the completion of the new location, said canal company shall not enter upon the old location of said railroad, except for making surveys or by consent of the railroad commissioners. If by reason of the increased length of the line of said railroad there shall be any legal liability to damages on the part of said canal company, the same shall be ascertained and determined upon application of either party in the manner provided by law for 20 CAPE COD SHIP CANAL COMPANY. estimating the damages occasioned by the laying out of rail- roads. The Cape Cod Ship Canal Company shall also build and maintain and keep in repair a bridge or bridges across said canal, suitable for the passing of the railroad, which said bridges shall each have a suitable draw for the passage of ves- sels, and shall be constructed and maintained under the super- vision of the board of railroad commissioners, and one of which, if said special commission shall so prescribe, shall be suitable for the passage of the highway. Said railroad company sliall appoint a steady and discreet superintendent, and all necessary assistants for each drawbridge, who shall be paid by said canal company a reasonable compensation, to be fixed by the railroad commissioners. Saici superintendent shall have full control and direction of the passing of vessels through the draw, and of trains over the bridge, and with said assistants shall be subject to such rules and regulations, not inconsistent with law, as said railroad and canal company shall from time to time prescribe for the operation of said bridge ; but such rules and regulations shall be subject to approval and alteration by the said board of railroad commissioners. And said superintendent and assistants shall be subject to removal by said board of railroad commis- sioners. Sect. 3. Section nine of chapter two hundred and fifty-nine of the acts of the year eighteen hundred and eighty-three is hereby amended by adding at the end thereof the words : And the land upon the abandoned location of the Old Colony Eailroad Company shall thereupon become the property of said canal company, 80 far as the same may be within the limits of the loca- tion of the canal. Sect. 4. Section thirteen of chapter two hundred CAPE COD SHIP^ CANAL COMPAKY. 21 and fifty-nine of the acts of the year eighteen hundred and eighty-three is amended so as to read as~ follows : Section 18. The said canal company shall provide and maintain at Monument, North Sandwich and at West Sandwich, at such points as may be designated by the county commissioners, suitable ferries across their canal for passengers and teams, to be operated free from tolls, under rules to be established by the county com- missioners. Said canal company shall forfeit fifty dol- lars for each day it shall fail to provide and maintain such ferries, to be recovered upon complaint or indict- ment in the county of Barnstable to the use of said county. Sect. 5. The said canal company shall also con- struct Such highways to connect with the bridge and ferries provided for in section thirteen of chapter two hundred and fifty-nine of the acts of the year eighteen hundred and eighty-three as amended by section four of this act, and such other highways as may be neces- sary to replace the highways destroyed by the construc- tion of said canal in such manner and at such times as the county commissioners for the county of Barnstable shall prescribe, upon each side of said ferries. After the com- pletion of such highways and their acceptance by the said county commissioners the said canal company shall not be responsible in any manner for the further maintenance of the same. 22 CAPE COD SHIP CANAL COMPANY. Sect. 6. Said corporation shall not be required to pay any state or local taxes for five years from the pas- sage of this act. [See Sect. 1 of Chap. 222 of the Acts of the year of 1887, p. 25. J Sect. 7. Section two of chapter two hundred and fifty-nine of the acts of the year eighteen hundred and eighty-three is amended by adding at the end thereof the following words : Said canal shall not be open for public use until the board of harbor and land commis- sioners after an examination shall certify that all laws re- lating to its construction have been complied with, and that it appears to be in a safe condition for operation. But nothing herein contained shall be so construed as to require the building of locks in said canal unless a board of three competent engineers, appointed by the governor, with the advice and consent of the council, shall decide that they are necessary for the protection of the bridge or bridges. The compensation of said engi- neers shall be fixed by the governor and council, and paid by the treasurer of the Commonwealth. Said canal company shall pay to the treasurer of the Common- wealth such sum of money as shall be necessary to pay for the services and expenses of said board of engineers. The materials excavated from the tide-waters in Huz- zard's Bay and Barnstable Bay shall be so disposed of, imder the direction of the harbor and land commissioners, as not to interfere with the fishing interests, and the CAPE COD SHIP OANAl COMPANY. 23 material excavated shall be deposited within the limits of the location of the canal as far as practicable. Sect. 8. The charter, corporate existence, organi- zation and location of said canal company are hereby recognized, ratified and affirmed. But except that the canal company shall so change the existing contract for the building of the canal as to make the same apply to any lawful change in the location thereof, the said exist- ins contract shall not be annulled nor altered, either as to the price to be paid for said building or in any other particular, except with the approval of the board of har- bor and land commissioners ; and no stock shall be issued to the contractor or any other person under said contract until five miles of said canal shall have been completed pursuant to its terms. [See Sects. 1 and 8 of Chap. 222 of the Acts of the year 1887, pp. 25 and 30.] Sect. 9. The provisions of section sixty-one of chapter one hundred and twelve of the Public Statutes shall apply to said Cape Cod Ship Canal Company. Sect. 10. Nothing herein, or in chapter two hun- dred and fifty-nine of the acts of the year , eighteen hundred and eighty-three, shall be construed to prevent or forbid any change or modification of the plan or de- tails of the construction of said canal or the works con- nected therewith which may be required or imposed by the United States, or the authorities thereof, upon aiding the construction of said canal or works. 24 CAPE COD SHIP CANAL COMPANY. Sect. 11. To defray the expenses and recompense the services of the county commissioners under the charter of said canal company and this act, it shall be the duty of said canal company to pay each of said commissioners the sum of six dollars per day for the time actually consumed in discharging their duties : provided, koweuer, that said canal company shall not be required to pay either of said commissioners for more than fifty days' service in any year. Sect. 12. The commissioners to be appointed by the governor, with the advice and consent of the coun- cil, as provided in section seven of chapter two hundred and fifty-nine of the acts of the year eighteen hundred and eighty-three, as amended by section two of this act, shall be paid in the manner provided for the payment of the board of engineers appointed under section two of said chapter two hundred and fifty-nine as amended by section seven of this act. ^ Sect. 13. Section fourteen of chapter two hundred and fifty-nine of the acts of the year eighteen hundred and eighty-three is hereby repealed. Sect. 14. This act shall be void unless accepted by the Cape Cod Ship Canal Company within six months from its passage, which acceptance shall be certified to the secretary of the Commonwealth. [Approved May 27, 1884.] CAPE COD SHIP CANAL COMPANY. 25 [Chap. 222 of the Acts of the year 1887.] An Act in Eelation to the Cape Cod Ship Canal Company. Be it enacted, etc., as follows: — Section 1 . The time for the completion of the Cape Cod Ship Canal and for the use, exercise and enjoy- ment of all the franchises, provisions, privileges and exemptions contained and granted in and by chapter two hundred and fifty-nine of the acts of the year eigh- teen hundred and eighty-three and chapter two hundred and seventy-four of the acts of the year eighteen hun- dred and eighty-four is hereby extended for a period of four years except as hereinafter otherwise provided ; and the contract referred to in section eight of said chap- ter two hundred and seventy-four may be renewed or extended accordingly. Sect. 2. Section two of chapter two hundred and seventy-four of the acts of the year eighteen hundred and eighty-four is hereby repealed, and section seven of chapter two hundred and fifty-nine of the year eighteen hundred and eighty-three is hereby reenacted and amended so as to read as follows : — , Section' 7. It shall be the duty of the Old Colony Railroad Company so to alter its location as to cross the said canal at such point or points as said railroad 26 CAPE COD SHIP CANAL COMPANY. company and said canal company may agree upon, or as the board of harbor and land commissioners and the board of railroad commissioners, who are for this purpose constituted a joint board, shall, acting together, by a majority vote after due notice and a public hear- ing determine ; and said joint board shall also deter- mine the question whether said canal shall be crossed by a public highway, and if so at what point and in •what manner ; and in determining said questions said board shall consider the obstruction of traffic upon said canal and the railroad and the general public conven- ience ; and if such public highway is ordered said canal company shall construct the same at the point and in the manner so determined. The board of railroad com- missioners, after due notice to all parties interested, and earing of all who shall appear, shall also determine and prescribe in writing the time when and the manner in which the Old Colony Railroad Company shall alter its location so as to cross said canal at such point or points ; and in making such alterations said railroad corporation shall have all the powers and privileges and be subject to all the duties, restrictions and liabilities set forth in all general laws relating to railroads, except that the damages of land-owners shall be assessed only against and paid by said canal company as in case of land taken for railroad purposes. The Cape Cod Ship Canal Company shall thereupon proceed to build the railroad and bridge or bridges upon the new location, and complete the same in such manner and at such time CAPE COD SHIP CANAL COMPANY. 27 as may be prescribed by the railroad commissioners and to their satisfaction, in case the parties do not agree upon the same, and shall pay all the damages caused by the construction of said railroad upon such new loca- tion, and shall be liable for such damages as in the case of the construction of railroads. Until the completion of the railroad upon the new location said canal com- pany shall not enter upon the old location of the rail- road, except for making surveys or by the consent of the railroad commissioners. Damages occasioned to the railroad company by its compliance with the require- ments of this act may be recovered by it of the canal company in the manner provided by law for the recovery of damages caused by the location and construction of railroads. The Cape Cod Ship Canal Company shall also build and maintain and keep in repair a bridge or bridges across said canal suitable for the passing of the railroad, which said bridges shall each have a suita- ble draw for the passage of vessels and shall be con- structed and maintained under the supervision of the board of railroad commissioners, and one of them, if said joint board shall so prescribe, shall be suitable for the , passage of the highway. Said railroad company shall appoint a steady and discreet superintendent and all necessary assistants for each drawbridge, who shall be paid by said canal company a reasonable compensa- tion to be "fixed by the railroad commissioners. Said superintendent shall have full control and direction of the passing of vessels through the draw and of trains 28 CAPE COD SHIP CANAL COMPAKY. over the bridge, and with said assistants shall be subject to such rules and regulations not inconsistent with law as said railroad and canal company shall from time to time prescribe for the operation of said bridge ; but said rules and regulations shall be subject to approval and alteration by the said board of railroad commissioners. And said superintendent and assistants shall be subject to removal by said board of railroad commissioners. Sect. 3. In case of injury to or destruction of any railroad bridge over the canal without the fault or negli- gence of the railroad company, it may at once repair or rebuild the same, and may recover of the canal company the reasonable expense therefor in an action of contract. Sect. 4. The deposit made with the treasurer of the Commonwealth pursuant to the provisions of section nineteen of chapter two hundred and fifty-nine of the acts of the year eighteen hundred and eighty-three shall be by him repaid to said canal company whenever the board of harbor and land commissioners shall certify that said corporation has actually received into its treas- ury and expended one million dollars in the construction of said canal pursuant to its charter, and the said canal company shall have also filed with the treasurer certifi- cates in writing of the county commissioners of the county of Barnstable that it has settled all land damages and all damages to the Old Colony Railroad Company as provided in section two of this act or has given seen- CAPE COD SHIP CANAL COMPANY. 29 rity satisfactory to said county commissioners to pay tlie same. So much of said section' nineteen as is inconsistent herewith is hereby repealed. Sect. 5. Section twenty of chapter two hundred and fifty-nine of the acts of the year eighteen hundred and eighty-three is hereby amended so as to read as follows : — Sect. 20. Said canal company, by a vote of a ma- jority of its stockholders at a meeting called for the purpose, may issue coupon or registered bonds, to pro- vide means for funding its floating debt or for the pay- ment of money borrowed for any lawful purpose, and may mortgage or pledge as security for the payment of such bonds, a part or all of its real and personal prop- erty, or franchise. Such bonds may be issued in sums of not less than one hundred dollars each, payable at periods not exceeding twenty years from the date thereof, and bearing interest not exceeding seven percent, a year payable annually or semiannually to an amount which, including that of the bonds previously issued, does not exceed all the capital stock of the corporation actually paid in at the time ; and such bonds shall be recorded by the treasurer of said corporation in books to be kept in his office. No bonds shall be issued unless approved by some person appointed by the corporation for that purpose, who shall certify that it is properly issued and recorded. In case any such mortgage is executed to trustees, then all bonds secured thereby shall also bear 30 CAPE COD SHIP CAUAL COMPANY. the certificate of one or more of the trustees that the same are so secured, and that the mortgage has been delivered to the trustees and duly recorded. Every such mortgage shall be recorded in the Registry of Deeds for the county of Barnstable. This section shall be subject to the provisions of sections sixty-two to seventy, inclu- sive, of chapter one hundred and twelve of the Public Statutes, so far as the same may be applicable. Sect. 6. If the right of any person or persons to file claims against the canal company for damages to property taken by said company's location has lapsed, such right is hereby revived for one year from the pas- sage of this act. Sect. 7. The towns of Sandwich and 'Bourne may tax the land within the location of said canal to said canal company upon an assessed valuation of land at the time of the taking thereof by said company and until the canal is constructed thereon. Sect. 8. Nothing contained in this act shall be con- strued as repealing any of the provisions of section eight of chapter two hundred and seventy-four of the acts of the year eighteen hundred and eighty-four. Sect. 9. This act shall take effect upon its passage. [Approved April 26, 1886.'] CAPE COD SHIP CANAL COMPANY. 31 CONTRACT FOR CONSTRUCTION RATIFIED BY SECTION 8 OF CHAPTER 274 OF THE ACTS OF 1884, AND AMENDMENTS TO THE CONTRACT. Agreement made this eighth day of October, A. D. 1883, by and between the Cape Cod Ship Canal Com- pany, a corporation duly established under the laws of the Commonwealth of Massachusetts, party of the first part, and hereinafter called the Company, and Frederic A. Lockwood, of Boston, in the County of Suifolk, in said Commonwealth, party of the second part, and hereinafter called the Contractor. The said parties hereby agree with each other, and each with the successors, legal representatives, and assigns of the other, as follows, to wit ; — I. The said company shall with all possible despatch lay out and locate a ship canal two hundred feet in width from high-water mark at Agawam Point on Buzzard's Bay, through the town of Sandwich to high-water mark on Barnstable Bay, near the mouth of Scusset river, ■ 32 CAPE COD SHIP CANAL COMPANY^ upon a route sliown upon a plan and drawings of George H. Titcomb, engineer, dated September, 1883, filed with the county comraissioners for the county of Barnstable, de- tails of whicli route may be found in the office of said engi- neer (see Amendment- Nq. I., p. 38) ; shall with all possible despatch purchase or otherwise take and acquire accord- ing to law all land and materials necessary for making or securing its canal, and for the wharves, docks, and other structures required for the convenient using of said canal, and for the highways provided for by its charter ; shall seasonably make all expenditures and all deposits of money, and give all such adequate security to the board of railroad commissioners or to other persons, officers, or corporations, as may be required by law or the terms of its charter, and generally shall do and perform all acts and things incumbent upon it by any general law or by the provisions of its charter, and necessary and proper to enable this contract to be fully executed. But the said company shall not incur any liabilities whatsoever to meet which the said contractor is to furnish money under this contract without having first obtained said contractor's assent in writing. II. The said contractor shall furnish to the said company, or shall reimburse to the said company, all moneys required or expended by it in doing the things stipulated to be done by it in Article one (I.) of this contract, and CAPE COD SHIP CAl^AL COMPANY. 33 shall within four years from the twenty-sixth day of June A.D. 1883 (see Amendment No. III., p. 40), construct and complete said canal, with all breakwaters, bridges, basins, docks, wharves, locks, gates, highways, and other structures necessary for the convenient using of said canal, and required by the charter of the said comj)any, the necessary approaches below or outside of high-water mark being alone excepted, accoifting to the provisions of said charter and according to the specifications hereto annexed, and made part of this contract ; and shall receive therefor the sum of seven and one-half millions ($7,500,000) dollars, payable at the times, in the sums, and in the manner following, to wit : — One million of dollars shall be paid for every mile of canal as constructed. At the end of each succeeding month from and after the beginning of work under this contract, the engineer of said company, George H. Tit- comb, or his successor, shall ascertain and report in writing to said company the number of feet of canal con- structed during said month according to this contract. And thereupon the said company shall pay to said con- tractor one million of dollars for each mile of canal so constructed during such month, and at the same rate for any portion of a mile, less only ten per cent., which shall be retained by the company as security for the faithful fulfilment of the entire contract, and shall be paid to the contractor only upOn such fulfilment, and the filing with said company of a certificate to that effect from the said 34 CAPE COD SHIP CANAL COMPANY. III. For the purpose of meeting its payments under this con- tract the said company shall, from time to time, as re- quired, issue capital stock to the full amount authorized by its charter. Said stock, as issued, shall be subscribed for by said contractor. And the amounts due from the company under the contract shall be offset against tlie amounts due from said contractor on account of his sub- scriptions to said capital stock. IV. Whenever the whole capital stock of said company shall have been issued as herein before provided, the said companj' shall, to meet further payments under said con- tract, issue such an amount of bonds as may be found necessary, not to exceed in any event the sum of five mill- ions of dollars. Such bbnds shall be payable at the end of tvcenty years from the date thereof ; shall bear interest at thd rate of six per cent, per annum (see Amendment No. II., p. 39) ; shall be secured by mortgage to trustees of all its property, including the franchise of the company, and by a sinking-fund, if said company shall so deter- mine, and shall be issued in all respects comformably to the provisions of section twenty of its charter. The net proceeds of such bonds shall be applied exclusively to the payment of sums due under this contract until the same shall have been fully satisfied. If the said contractor CAPE COD SHIP CANAL COMPANY. 35 shall purchase said bonds, or any of them, which he is hereby authorized to do, amounts due from him on ac- count of purchase of bonds shall be offset against amounts due to him from said company under this contract. V. The said contractor shall indemnify and hold harmless the said company against all injuries to persons or prop- erty occasioned by or growing out of the work to be per- formed under this contract, or occasioned by or growing out of any acts or defaults of himself or of his sub-con- tractors or employees.. And in no event shall the direct- ors of the company be, or be held, individually liable for the contract price herein named, or any part thereof. If, in the course of the construction of said canal, it shall be found necessary to do work or furnish materials not contemplated by this contract, nor provided for in the annexed specifications, the contractor shall be at liberty to do such work or furnish such materials, and shall be entitled to receive reasonable compensation therefor. VII. In the event of any difference between the parties hereto as to the true meaning and effect of this contract, 36 CAPE COD SHIP CANAL COMPANY. or growing out of anything done under it, the matter shall be referred to three arbitrators, one chosen by each party and the third selected by the two so chosen, the decision of whom, or of a majority of whom, being made in writing, shall be final and conclusive. But the said contractor, in the event of such difference, shall not be obliged to suspend operations during such arbi- tration. In witness whereof the said company hath caused these presents to be executed by its president and treasurer, and its corporation seal to be hereto affixed by Samuel Fessenden, its treasurer, hereunto duly au- thorized ; and the said contractor hath hereunto set his hand and seal in duplicate, the day and year above written. (Signed) THE CAPE cop SHIP CANAL COMPANY, by Wm. Seward, Jr., [Seal. J President, and Samuel Fessenden, Ti'easurer, [Seal.J FEEDERIC A. LOCKWOOD. Executed in the presence of Samuel W. McCall. CAPE COD SHIP CANAL COMPANY. 37 Specifications for the Cape Cod Ship vCanal Company. Reference shall be made to the drawings at the Engi- neer's office forming a part of the specifications. Tiie canal shall be 200 feet wide at the top and 75 feet wide at the bottom, and shall be 39,000 feet long, more or less, and shall have 23 feet of water throughout at mean low water when dredged. The work shall l>e under the conti'oland supervision of George H. Titcomb, Engineer-in-Chief, or his Assistant Chief Engineer (see Amendment No. If., p. 39), until the canal is completed. The masonry shall be done in accordance with the plans and to the satisfaction of the Engineer. Detailed drawings shall be furnished to the contractor. The super- structure of the bridge shall be built so as to be accept- able to the Railroad Commissioners ; all turnpike changes to be acceptable to the County Commissioners. Sluices shall be cut through the banks of canal, so that the creeks from the several ponds may empty in, and they shall be left open, so that the fisheries shall not be damaged, and the same shall be approved by the Fish Commissioners. The railroad changes shall be made and be acceptable to the Railroad Commissioners. Ferries shall be provided where the County Commissioners shall direct, and shall be acceptable to the said Commissioners. 38 CAPE COD SHIP CANAL COMPANY. Amenpments. It fff hereby agreed by and between the Cape Cod Ship Canal Company and Frederic A. Lockwood, that the contract between the said company and said Lock- wood bearing date Oct. 8th, 1883, be and the same is hereby altered and amended so that said contract shall apply to the amended location of the canal, but the said contract is not hereby changed as to price named or in any other particular. In witness whereof the said company hath caused these presents to be executed by its president and treas- urer and its corporate seal to be hereto affixed by Samuel Fessenden its treasurerhereunto duly authorized ; and said contractor hath hereunto set his hand and seal in duplicate this 10th day of September, 1886. (Signed) [Seal.] FREDEEIC A. LOCKWOOD. CAPE COD SHIP CANAL COMPANY, by W. A. Clark, Jr., President, [Seal. J and Samuel Fessenden, Treasurer. CAPE COD SHIP CAXAL COMPANY. 6\) II. It is hereby agreed by and between the Cape Cod Ship Cantil Company and Frederic A. Lockwood that the contract between said company and said Lockwood bearing date Oct. 8th, 1883, be and the same is hereby altered and amended as follows, to wit : the interest upon the bonds of said company shall be 5 per cent, per annum, instead of 6 per cent, per annum, as set forth in the fourth section of said contract. The last sentence in the first clause of the specifica- tions annexed to said contract is hereby changed so that said sentence shall read as follows : " The work shall be under the supervision of George H. Titcomb, Engi- neer-in-Chief, or his successor, or his assistant-chief- engineer until the canal is completed."' Ix WITNESS AVHEEEOF the Said Company hath causetl these presents to be executed by its president and treas- urer and its corporate seal to be hereto affixed by Samuel Fessenden its treasurer hereunto duly authorized, and the said contractor hath hereunto set his hand and seal in duplicate this 31st day of January, 1887. (Signed) [Seal.j FREDERIC A. LOCKWOOD. CAPE COD SHIP CANAL COMPANY, by W. A. Clark, Jr. JPresident, rSeal.] and Samuel Fessexdex. Treasurer. 40 CAPE COD SHIP CANAL COMPANY. We see no objection to the within alterations and amendments of contract between the Cape Cod Ship Canal Company and Frederic A. Lockwood, and hereby approve the same. (Signed) JOHN E. SANFORD, JOHN I. BAKER, Harbor and Land Coynmissioners. Boston, February 2, 1887. m. It is hereby agreed by and betweea the Cape Cod Ship Canal Company and Frederic A. Lockwood that the contract between the said canal company and the said Lockwood, dated October 8th, 1883, and amended September 10th, 1886, and January 31st, 1887, be and the same is hereby further amended . extending the time for completing the canal four years so that the canal shall be completed on or before June 2tjth, 1891, instead of on or before June 26th, 1887, and all the provisions of said' contract as amended and the rights of both parties thereunder are hereby extended accordingly. In witness whereof the said company has caused these presents to be executed by its president and treasurer and its corporate seal to be hereto affixed by Samuel Fessenden its treasurer hereunto duly authorized ; CAPE COD SHIP CANAL COMPANY. 41 and said contractor has hereunto set his hand and seal in duplicate this 2d day of May 1887. (Signed) [Seal.] FREDERIC A. LOCKWOOD, Contractor. THE CAPE COD SHIP CANAL COMPANY, by W. A. Clark, Jk., President, [Seal.] and Samuel Fessenden, Treasurer. 42 CAPE COD SHIP CANAL COMPANY. CONTRACT FOR CONSTRUCTION OF APPROACHES TO THE CANAL. Agreement made this tenth day of September, A.D. 1886, by and between the Cape Cod Ship Canal Company, a corporation duly established under the laws of the Commonwealth of Massachusetts, party of the first part, and hereinafter called the Company, and Frederic A. Lockwood of Boston, in the County of Suffolk, in said Commonwealth, party of the second part, and hereinafter called the Contractor. The said parties hereby agree with each other, and each with the successors, legal representatives, and assigns of the other, as follows, to wit : — I. The said company shall with all possible despatch procure all needed licenses or permits from the Com- monwealth or the proper authorities thereof for the construction of the necessary approaches to the canal below or outside of high- water mark, and the break- waters, wharves, docks, and other structures required for the convenient using of said canal ; CAPE COD 5HIP CANAL COMPANY. 43 Shall with , all possible despatch purchase or other- wise take and acquire according to law all land and materials necessary for making or securing said ap- proaches to said canal and the said breakwaters, wharves, docks, and other structures ; Shall seasonably make all expenditures and give such adequate security to persons, officers, or corpora- tions as may be required by law or the terms of its charter and the amendments thereof, and gtenerally shall do and perform all acts and things incumbent upon it by any general law or by the provisions of its charter and the amendments thereof and necessary and proper to enable this contract to be fully executed. But the said company shall not incur any liabilities whatever to meet which the said contractor is to furnish money under this contract without first having obtained said contractor's assent in writing. 11. The said contractor shall furnish to the said company or shall reimburse to the said company, all moneys re- quired or expended by it in doing the things stipulated to be done by it in Article one (I.) of this contract, and shall within five years from the date hereof construct and complete the said approaches to the said canal below , or outside of high-water mark, and the breakwater in Barnstable Bay according to the provisions of said charter and the amendments thereof and according to the specifications hereto annexed, and made part of this 44 CjtPE COD SHIP CANAL COMPANY. contract, and shall receive therefor the sum of two and one half millions ($2,500,000) of dollars payable at the times, in the sums, and in the manner following, to wit : One million ($1,000,000) of dollars shall be paid when the Barnstable Bay approach is dredged to the required •depth and to a width of 200 feet, and one and one quarter millions ($1,250,000) of dollars shall be paid when the Buzzard's Bay approach is dredged to the re- quired depth and to a width of 200 feet ; and one quar- quarter million ($250,000) of dollars shall be paid when the North Jetty in Barnstable Bay is constructed sea- ward as per specifications. All the