Cornell Saw folpiiil Eibranj 
 
Cornell University Library 
 KF 2289.P61 
 
 A treatise on American raHrosd taw. 
 
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 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019318751 
 
TREATISE 
 
 AMERICAF Ki&ROAD LAW. 
 
 ^uaa^ Mi 
 
 ■ n 
 
 (.. BY'-' 
 
 EDWARD L. PIERCE, 
 
 OF TBI BOSTON BAR. 
 
 NEW YORK: 
 JOHN S. VOORHIES, LAW BOOKSELLER AND PUBLISHER, 
 
 20 NASSAU STREET. 
 1857. 
 
 3082 
 
. Entered according to Act of Congress, in the year 1857, by 
 • \ ^ •» * EDWARD L.'PIEECE, 
 
 In the Clerk's Office of the District Court of the District of Massachusetts. 
 
 Basse & Godwin, Printers, 
 1 Spruoe St., N. T. 
 
PREFACE. 
 
 The present volume is designed to reduce to a 
 compact and accessible form, the Law of Kailroads, 
 as it has been judicially declared in this country. 
 The decisions upon the subject, which have been 
 reported mainly within the last ten years, have accu- 
 mulated rapidly during that period. Hitherto they 
 have not been digested into a treatise, and when 
 required to determine questions as they arise, are 
 brought together with no inconsiderable labor and 
 difficulty. Although the treatise is occupied chiefly 
 with the discussion of the law, as declared in these 
 cases, which it is believed, will be found to be 
 collected with fidelity, the interpretation of such 
 statutes as are of general interest, and are essentially 
 the same in the several States, has been considered, 
 while local laws have been excluded from its 
 scope. 
 
 The English decisions, so far as they are appli- 
 cable to this country, have been cited ; but it must 
 
IV PREFACE. 
 
 be confessed that they furnish less aid in this than m 
 other topics of the law. The decisions themselves, 
 as well as the treatises on railroad law which have 
 appeared in England, have been occupied to a 
 very great extent with the discussion of the statutes 
 for the organization and government of railroad 
 companies, which have been extended by Parlia- 
 ment to great length and particularity of pro- 
 vision. 
 
 To the courts of our own country, we must 
 chiefly look for the law of this subject. With nearly 
 twenty-five thousand miles of railroads already con- 
 structed, in length four times those of England, and 
 equal to all the railroads in Europe, involving a cor- 
 responding investment of capital, and application of 
 industry in their construction and operation, our own 
 judicial tribunals may be expected to lead the way 
 in applying the principles of the law to this new 
 sphere of enterprise. 
 
 The law of corporations in most of its divisions, has 
 been open to the consideration of the author ; but 
 the points which are not peculiar to the class here 
 considered, or are seldom presented by them for deci- 
 sion, have been pressed into a narrow space, so as to 
 leave opportunity for a more full discussion of such 
 as are of constant occurrence in the creation and 
 management of railroad companies. For this reason, 
 five chapters have been devoted to the subject of 
 
PREFACE. V 
 
 Torts, which is less considered in textbooks than 
 almost any other. 
 
 The author has amplified the statements of ele- 
 mentary principles in some chapters, more than a 
 professional reader might desire, in order to render 
 the volume of more service to persons outside of the 
 profession, whose occupations or interests are con- 
 cerned in the affairs of railroad companies, and who 
 may be disposed for that reason to consult a treatise 
 on the subject. The same consideration has induced 
 the liberal extracts from judicial opinions, which 
 have been inserted in the notes. 
 
 On some matters which it has been found neces- 
 sary to discuss, such, for instance, as the fraudulent 
 issue of stock and railroad mortgages, less authori- 
 tative declarations of the law were found than could 
 be desired ; and upon these unsettled questions, such 
 views have been taken, with a prudent reserve, as 
 seemed in harmony with the principles of the law 
 which have been applied to subjects most nearly 
 analogous. 
 
 It would be vanity in the author of any treatise, 
 with whatever devotion he may have given himself 
 to its preparation, to suppose that nothing could be 
 taken from or added to it with advantage ; least 
 of all, if it occupies an untrodden field. But 
 he may well be conscious of having done something 
 of the duty which every lawyer owes to his profes- 
 
VI PEEFAOB. 
 
 sion who, by the faithful collation of the author- 
 ities and the suggestion of sound doctrines, has 
 contributed his hours of study to illustrate the law- 
 appropriate to a department of enterprise which 
 combines the grandest material energies of the age, 
 and unfolds views of national greatness which 
 patriotism delights to contemplate. 
 
 Boston, 10th August, 1851. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 THE FORMATION OF A RAILROAD COMPANY. 
 
 Page 
 Definitions, 1 — General Frame of the Charter, 3 1 
 
 CHAPTER IL 
 
 THE CONSTRUCTION AND EXTENT OF POWERS. 
 
 General Rule of Construction, 9 — Specific application of the Rule, 10, 9 
 
 CHAPTER III. 
 
 POWER OF THE LEGISLATURE OVER THE COMPANY. 
 
 The Charter protected by the Constitution of the United States, 19 — 
 What impairs the obligation of the Contract implied in the 
 Charter : Exclusive Privileges not implied, 20 — Exclusive Privi- 
 leges expressly conferred in the Charter, 27 — Grant of exemption 
 from taxation, SB — Reservation of power by the Legislature to 
 impose additional duties and liabilities on the Company, 36 — 
 What rights protected by the constitutional prohibition, 39 — The 
 Company subject to Police Laws, 40, 19 
 
 CHAPTER TV. 
 
 TAXATION OF RAILROAD COMPANIES. 
 
 Permanent exemption from Taxation by grant, 47 — Temporary ex- 
 emption by Statute, 49 — Constructive exemption from Taxation, 
 49 — Rule of assessing Taxes on Railroad Companies, 54, . . 47 
 
Vlll CONTENTS. 
 
 CHAPTER V. 
 
 CREATION OF CAPITAL STOCK ET SUBSCRIPTIONS. 
 
 Page 
 
 What makes a Subscriber, 66— Defences of Subscribers to the Capital 
 Stock, 63 — Non-payment of the first installment, 64 — Full number 
 of Shares not taken, 67 — Subscriptions conditional upon the 
 location, 70 — Fraud and breach of public duty, 75 — Assignment 
 of Shares, 77 — Demand and Notice, 77 — Amendments of the 
 Charter, 78 — Remedies of the Company for collecting assessments 
 upon the Shares, 100 — Subscriptions by Municipal Corporations, 
 108— Distribution of Shares, 126, S6 
 
 CHAPTER VI. 
 
 ISSUE AND TRANSFER OF SHARES OF CAPITAL STOCK. 
 
 Shares personal property, 127 — Sale of Shares not belonging to the 
 vendor, 127 — Measure of Damages, 128 — Mode and effect of 
 assignment, 128 — Fraudulent issue of Stock, 130, . . .127 
 
 CHAPTER VH. 
 
 ACQUISITION BY THE COMPANY OF A RIGHT OF WAY AND REAL ESTATE BY 
 PURCHASE. 
 
 Construction of a deed to the Company, 138 — Conveyance upon 
 condition, 139 — Letters patent to the Company, 141 — Damages 
 
 for breach of contract to convey land to the Company, 141 
 
 Statute of Frauds, 141 — Rights of the Company in Real Estate 
 enforced in Equity, 142, igg 
 
 CHAPTER VIII. 
 
 ACQUISITION BY THE COMPANY OF A RIGHT OF WAY AND REAL ESTATE BY 
 CONDEMNATION. 
 
 Derivation by the Company of the power to condemn private property 
 for the purposes of a Railroad Company, 147 — What is Bubiect 
 
 to be taken by virtue of the right of eminent domain, 151 
 
 Compensation, when to be made, 161 — Mode of and tribunal 
 for determining the compensation, 166 — Injuries to be compen- 
 sated in the assessment of damages, 17 1 — Property actually taken 
 
 172 — Injuries to franchises, 172 — Consequential injuries, 173 
 
 Rights of owners of lands upon navigable waters, 176 — Rights 
 of owners of lands upon highways and streets, 178 — Liability of 
 
CONTENTS. IX 
 
 Page 
 the Company to landowners for damages, as defined by Statute, 
 184 — Admissibility of Evidence, 198 — Measure of damages, 203 
 —Setting aside of the Award, 205 — Deduction of Benefits, 206 — 
 Joinder of Parties, 212 — Notice of proceedings to condemn 
 property, 213 — General Law of New York, 214, . . . 14*7 
 
 CHAPTER IX. 
 
 LOCATION OF THE ROAD. 
 
 Route and Termini, 215 — Filing of the location, 217 — Change of 
 
 location, 218 — Expiration of power, 219, 215 
 
 CHAPTER X. 
 
 LIABILITY OF THE COMPANY FOE TORTS IN GENERAL. 
 
 Liability at Common Law, 220 — Liability at Common Law enlarged 
 by Statute, 223 — Injuries exclusively within the Statute remedy, 
 223 — Penal Action, 231 — Indictment of the Company, 232 — 
 Liability for Torts of Servants, 232 — Form of action against the 
 Company for the Torts of its Servants, 234 — Responsibility for 
 the Torts of Contractors and of their Servants, 235 — What makes 
 the wrong-doer a Servant of the Company, 242 — Breach of Public 
 Duty, 244 — Liability for Nuisances, 245 — Infraction of Patent 
 Right, 248 — Injuries resulting from the enforcement of the Regu- 
 lations of the Company for the conduct of Passengers and Persons 
 coming upon its Premises, 248 — Damages, 254, . . . 220 
 
 CHAPTER XI. 
 
 PERSONAL INJURIES RESULTING IN DEATH. 
 
 Not actionable at Common Law, 256 — Remedies for, under Statutes, 
 
 257 — Measure of Damages, 261 — Defences under Statutes, 262, . 256 
 
 CHAPTER XII. 
 
 INJURIES TO PERSONS NOT IN PRIVITY OF CONTRACT WITH THE COMPANY. 
 
 Injuries to persons exercising a right, occasioned by the negligence 
 of the Company, 264 — Precautions required by Statute, 272 — 
 Negligence of the injured party, 272 — Negligence of children and 
 disabled persons, 278 — Negligence, a question of fact, 282 — 
 Injuries to trespassers, 284, 264 
 
X CONTENTS. 
 
 CHAPTER XHI. 
 
 INJURIES TO SERVANTS. 
 
 Page 
 Injuries from the negligence of Fellow-Servants, 286 — Negligence of 
 the Company in employing incompetent Servants and providing 
 improper Machinery, 295 — Negligence of the injured Servant, 
 298 — Injury to a Servant not at the time in the Master's service, 
 298 — Injuries to Slaves, 299 — When the relation of Fellow- 
 Servant subsists, 299 — Injuries arising from the negligence of a 
 superior Servant, 305 — Negligence of the Company as distinct 
 from that of its Servants, 307, 286 
 
 CHAPTER XTV. 
 
 INJURIES TO PROPERTY BY (TEE. 
 
 Liability at Common Law for injuries by fire, arising from negligence, 
 311 — Burden of proof, 314 — Statute provisions imposing liability 
 for injuries by fire, 317, • 311 
 
 CHAPTER XV. 
 
 INJURIES TO CATTLE. 
 
 Liability of the Company at Common Law, 320 — Injuries to cattle on 
 the highway, 832 — Liability of the Company under Statutes 
 requiring it to maintain fences, 334 — Wrongful act of plaintiff 
 386 — Liability for injuries to cattle wrongfully on the adjoining 
 land, 337 — Waiver of the benefit of the Statute requiring fences 
 344 — Exceptions to the rule relieving the Company from the 
 obligation to fence, when not required by express Statute pro- 
 vision, 346 — Duty to fence imposed by a special tribunal, 351 
 
 Duty to fence imposed by contract, 352 — Kind of fence required 
 by Statute, 868 — Construction of the Statutes imposing the 
 obligation to maintain fences, 354 — Exceptions to the Statutes 
 
 355 — Negligence of the Company a question for the jury, 357 
 
 Burden of proof, 357 — Form of action against the Company for 
 injury to cattle, 358 — Power of the Legislature to require a 
 Company to maintain fences, 358, „„» 
 
CONTENTS. XI 
 
 CHAPTER XVI. 
 
 CONTRACTS OF BAILROAD COMPANIES. 
 
 Page 
 
 When the Company is capable of taking a deed, 359 — Assent of the 
 parties, 360 — Mutuality of obligation, 361 — Offers on time, 364 — 
 Assent by letter, 366 — Consideration of the contract, 367 — Form 
 of contract, 369 — Statute of Frauds, 3*71 — What seal makes a 
 specialty, 371 — Negotiable Bonds, 371 — Promissory Notes and 
 Bills of Exchange, 372 — Contracts made by agents, 373 — Subject- 
 matter of contracts, 375 — Purchase of real estate, 376 — Agree- 
 ments with contractors, 376 — Failure of the contractor to complete 
 the work within the time fixed, 376 — Provision for forfeiture of 
 unpaid installments, and vesting discretion with the engineer, 377 
 — Claim for extra work, 383 — Liability of the Company to a 
 sub-contractor, 387 — Damages for breach of the agreement with 
 the contractor, 388 — Agreement by the contractor to receive 
 stock or bonds in payment of his work, 389 — Unlawful contracts, 
 890 — Capacity of the Company to make contracts, 395 — Decis- 
 ions in England on the capacity of the Company, 397 — Merger 
 of the contract, 404 — Evidence of the performance of the 
 contract, 405 359 
 
 CHAPTER XVIL 
 
 LIABILITY OF THE COMPANY AS A COMMON CARRIER OF GOODS. 
 
 Railroad Company, a Common Carrier, 406 — Measure of liability, 409 
 — Public duty to carry for all persons, 413 — Limitation of liability 
 by special contract or notice, 416 — Delivery to the Company, 
 425 — Delivery by the Company, 484 — When the liability of the 
 Company as a common carrier is changed into that of warehouse- 
 man, 435 — Liability of the Company in the unlading of goods, 
 446 — Termination of the liability of the Company as warehouse- 
 man or depositary, 448 — Notice to the consignee, 449 — Liability 
 of the Company for goods consigned to places beyond its terminus, 
 451 — Duty to deliver to the proper person, 458 — Acceptance of 
 the goods by the owner before reaching their destination, 459 — 
 Lien of the Company, 459 — Compensation, 461 — Liability in the 
 transportation of cattle, 462 — Damages for breach of agreement 
 to carry goods, 465 — Action of Trover against the Company, 
 467 — Burden of proof, 467, 406 
 
XU CONTENTS. 
 
 CHAPTER XVIII. 
 
 LIABILITY OF THE COMPANY AS A COMMON CARRIER OP PASSENGERS. 
 
 Page 
 
 Measure of liability for the safety of passengers, 469 — Negligence 
 of the passenger, 475 — Measure of liability to passengers not 
 paying fare, 476 — Liability for injuries to persons unlawfully 
 on the tram, 484 — Liability for passengers on freight trains, 484 
 — Liability of the Company to passengers purchasing tickets of 
 it to places beyond its terminus, 485 — Liability of persons, other 
 than the proprietors of the road, contracting to carry persons 
 over it, 485 — Liability of the company to passengers purchasing 
 tickets of other companies, when carried in trains under the 
 control of its servants, 486 — Public duty of the company towards 
 persons traveling upon its road in the trains operated by other 
 carriers, 487 — Liability for passengers carried in ferry boats, 488 
 — Duty of the Company to receive passengers and to carry them 
 according to its professions, 489 — Duty of passengers to conform 
 to the reasonable regulations of the Company, 490 — Burden of 
 proof, 492 — Damages recoverable by an injured passenger, 493 
 — Liability of the Company for the luggage of passengers, 495 — 
 What may be included in luggage, 496 — When the liability 
 for luggage begins and ends, 498 — Limitation of liability for 
 luggage by notice or special contract, 499 — Lien on luggage 
 for passenger's fare, 500 — Burden of proof in case of loss of 
 # luggage, 500 — Testimony of passenger, 501, . . . ■ 469 
 
 CHAPTER XIX. 
 
 REMEDIES, 
 
 Consolidation of companies, 503 — Enforcement of subscriptions, 604 
 — Jurisdiction of federal courts, 504 — Form of action, 505— Pen- 
 alties and prosecutions by indictment, 505 — Assessment of 
 damages to landowner, 505 — Mandamus, 506 — Scire Facias and 
 Quo Warranto, 607— Equitable remedies, 508 — Equitable reme- 
 dies of creditors, 510— Personal liability of stockholders, 510, 503 
 
 CHAPTER XX. 
 
 MORTGAGES OF PROPERTY AND FRANCHISES. 
 
 Capacity of the Company to mortgage its road and property, 511 
 
 Mortgage of subsequently acquired property, 530— Remedies of 
 mortgagee, 631— Parties to a bill for foreclosure, 532, 611 
 
TABLE OF CASES. 
 
 A. 
 
 Page 
 
 Abbott v. Steam Packet Co 395 
 
 Ackley v. Kellogg 454 
 
 Adams v. Lindsall 367 
 
 ■o. Saratoga and Washington R. R. Co 181 
 
 Albany and Northern R. R. Co. v. Lansing 192, 200, 211 
 
 Albany and Schenectady R. R. Co. v. Osborn 55 
 
 Albany and West Stockbridge R. R. Co. v. Canaan 55 
 
 Albro v. Agawam Canal Co 295, 307, 308 
 
 Alden v. Pearson 46? 
 
 Aldrich v. Cheshire R. R. Co 165, 185, 189, 226 
 
 Aldridge v. Great WesterijR. Corp 282, 316, 316, 357 
 
 Allen v. Montgomery R. R. Co 77, 100, 107, 513, 530 
 
 v. Sewall 413, 423, 433, 434, 510 
 
 v. Sullivan R. R. Co 37 1 
 
 Alton and Sangamon R. R. Co. v. Baugh 322, 356 
 
 v. Carpenter 196, 206, 207 
 
 Altreuter v. Hudson River R. R. Co 269 
 
 Amherst and Belchertown R. R. v. Watson 108 
 
 Ammant v. New Alexandria and Pittsburg Turnpike 515, 628, 629 
 
 Anderson v. Rochester, Lockport, and N. F. R. R. Co 181 
 
 Andover and Medford Turnpike Co. v. Gould 102, 106 
 
 Androscoggin and Kennebec R. R. Co. v. Stevens 603 
 
 Armington v. Barnet 35 
 
 Arthur v. Commercial and R. R. Bank of Vicksburg 517, 520, 529 
 
 Ashby v. Eastern R. R. Co 177, 185, 212, 223 
 
 Atlantic and St. Lawrence R. R. Co. v. Cumberland County Commis- 
 sioners 205 
 
 Attorney General v. Eastern Cos. R. Co : 14 
 
 v. Hudson River R. R. Co 11, 178, 510 
 
 v. Stevens 178 
 
XIV TABLE OF CASES. 
 
 Page 
 
 Atwater v. Woodbridge 
 
 Atwood v. Reliance Trans. Co 421 > 422 
 
 Aurora Branch E. R. Co. v. Grimes 269, 275, 470 
 
 Austin v. Manchester, Sheffield, &c, R. Co 46S 
 
 v. K. Y. and Erie R. R. Co 221 > 603 
 
 Averill v. Hedge ^Sl 
 
 Avery v. Maxwell 321 > 338 
 
 B. 
 
 Babcock v. Western R. R. Corp 13, 139 
 
 Bachelder v. Heagan 311, 314 
 
 Backus v. Lebanon 35, 152, 156 
 
 Bagshawu. Eastern Counties R. Co 89, 609 
 
 Bailey v. Mayor, <fcc, of New York 240 
 
 v. Phil., "Wil, and Bait. R. R. Co 20,175,222 
 
 Baker v. Bolton 256 
 
 v. Boston 40 
 
 v. Brinson 468 
 
 Baldwin v. Collins 417, 423 
 
 Baltimore and Ohio R. R. Co. v. City of Wheeling 509 
 
 Baltimore and Susquehanna R. R. Co. v. Compton 219, 221 
 
 v. Nesbitt 40, 165 
 
 Banet v. Alton and Sangamon R. R. Co 73, 79, 91, 108 
 
 Bangor v. Piscataquis R. R. Co 54 
 
 Bank of Augusta v. Earle 395 
 
 Bank of Ky. v. Schuylkill Bank 137 
 
 Barker v. Belknap and Vt. Central R. R. Co 383, 387 
 
 d. Troy and Rutland R. R Co 376, 377, 882, 883, 385, 386 
 
 Barnard v. Wallis 8 
 
 Barnes v. Perine 369 
 
 Barney v. Prentiss 418 
 
 Barrett v. Stockton and Darlington R. R. Co 12 
 
 Barron v. City Council of Baltimore 161 
 
 Barry v. City of St. Louis 236 
 
 v. Merchants' Exchange Co 513 
 
 Bassett v. Norwich and Worcester R. R. Co 295, 297 
 
 Bean v. Green 418 
 
 Bean v. Sturtevant 433 
 
 Beekman «. Shouse 421 
 
 Beckwith v. Cheever 3gl 
 
 Beekman v. Saratoga and Schenectady R. R. Co 147, 148, 149, 156 165 
 
 166, 489 
 
TABLE OF OASES. XV 
 
 Page 
 
 Beenei;. Cahawba and Marion R. R. Co 100, 105 
 
 Beers v. Housatonie E. R. Co 268, 269, 276, 283, 333 
 
 Bell v. Gough 175 
 
 v. Ohio and Penn. R. E. Co 247 
 
 Beman v. Rufford 398, 400, 609 
 
 Benedict v. Coit 179 
 
 Bennett v. Bogg 110 
 
 v. Camden and Amboy E. E. Co 206 
 
 v. Dutton 489 
 
 Benson v. Mayor, <fec, New York 40 
 
 Bigelow v. Heaton 461 
 
 i). York and Cumberland E. E. Co 405 
 
 Biggs v. Ferrell 618 
 
 Bingham v. Eogers 418, 502 
 
 ■a. Shouse , 421 
 
 Bird v. W. and M E. E. Co ....609 
 
 Birge v. Gardiner 279 
 
 Black v. Carrollton E. E. Co 494, 495 
 
 Blake v. Ferris 236 
 
 *. Midland R. R. Co 255, 262 
 
 v. Rich 161 
 
 Blakemore v. Glamorganshire R. Co 218 
 
 Blanchard v. Isaacs 430, 431, 498 
 
 Blattenberger v. Schuylkill Nav. Co 236 
 
 Bloodgood v. Mohawk and Hudson R. R. Co 149, 162, 163, 165, 235 
 
 Blossom v. Griffin 428 
 
 Blyth v. Birmingham Water Works Co 480 
 
 Boggs v. Martin 461 
 
 Bomar v. Maxwell, 497 
 
 Bonaparte v. Camden and Amboy R. R.Co. 12, 149, 162, 163, 166, 171, 509 
 
 v. Camden and Woodbury R. R. Co 12 
 
 Boodyi). Rutland and Burlington R. R. Co 390 
 
 Boom a. Utica 896 
 
 Boston, Concord and Montreal R. E. Co. v. Greely 205 
 
 v. State 43, 232, 260 
 
 Boston and Lowell R. R. Corp. v. Boston and Maine R. R 34, 364 
 
 v. Snlem and Lowell R. R. Co. 30. 162, 157, 
 158, 171, 173 
 
 Boston and Maine R. R. v. Babcock 142 
 
 v. Bartlett 71, 365 
 
 Boston and Providence R. R. Corp. v. Midland E. R. Corp. 217, 218 
 
 Boston Water Power Co. v. Boston and Worcester R. R. Co. 11, 151, 154, 
 
 155, 156, 216 
 
 v. Gray 383 
 
 Bowman v. Hilton 460 
 
XVI TABLE OF CASES. 
 
 Page 
 
 Bowman v. Teall * U ' 518 
 
 v. Wathen , 
 
 „ ,. „ 461 
 
 Bowun v. aye 
 
 Boynton v. Peterborough and Shirley R. R. Co .- .213, 218 
 
 Bradford v. S. C. R. R. Co ^ til 
 
 Bradley v. Boston and Maine R. R 272 > 282 
 
 •„. N. Y. and N. H. R. R. Co 9, 23, 174, 184, 190, 230 
 
 „. Holdsworth n1 
 
 Brainard v. Clapp 15,151,228 
 
 •„. Connecticut River R. R. Co • 247 
 
 Brand a. Schenectady and Troy R. R. Co 267 
 
 Brewster v. Hough ss 
 
 Bridge v. Grand June. R. R. Co 275 
 
 Bright v. Vanderbilt 462 
 
 Brind v. Dale 429 
 
 Brinley v. Mann 375 
 
 Brisban v. Boyd 367 
 
 Bristol v. Rensselaer and Saratoga R. R Co 408, 434, 459 
 
 Broadwell v. Butler ; 411 
 
 Brocket v. Ohio and Penn. R. R. Co 13 
 
 Brooke n. Pickwick 497 
 
 Brooks v. N. T. and Erie R. R. Co 336, 339, 355 
 
 Brown v. Eastern R. R. Co 423, 424 
 
 v. Maxwell 279, 289, 298 
 
 v. Powell 213 
 
 Brownell v. Flagler 323 
 
 Browning v. Camden and Woodbury R. R. Co 509 
 
 Buckfield Branch R. R. Co. v. Irish 103 
 
 Buckman v. Levi 426 
 
 Buffalo and Niagara Falls R R. Co. v. City of Buffalo 37 
 
 Bulkley v. Derby Fishing Co 375 
 
 Burrell v. North 425 
 
 Burroughs v. Housatonic R. R. Co 114, 221, 222, 314 
 
 1 Burton v. Great N. R. Co 362 
 
 v. Phil. Wil. and Bait. R. R. Co 233, 248, 271, 282 
 
 Butcher v. London and S. W. R. Co 430, 448, 498 
 
 Butman v. Vt. Central R. R. Co 170, 219, 221 
 
 Butternutts v. North 72 
 
 Byron «. May. 531 
 
 c. 
 
 C. J. and C. R. R. Co. v. Clarkson gg» 
 
 C. and Y. R. Co. a. Paterson gg 
 
 Cabot and West Springfield Bridge v. Chapin gg ^ 
 
TABLE OF CASES. XV11 
 
 Page 
 
 Caldero. Bull 110 
 
 Caledonian R. Co. v. Ogilby 187, 198, 246 
 
 Calking v. Baldwin ) 225, 230 
 
 Callender v. Marsh 222 
 
 Cambridge v. Somerville and Charlestown Branch R. R. Corp 507 
 
 Camden and Amboy R. R. Co. v. Baldauf 413, 418, 422, 423, 468 
 
 v. Belknap 417, 425, 429, 496, 498 
 
 v. Briggs 12, 42 
 
 v. Burke 410, 417, 470, 496 
 
 v. Commissioners . . . . .35, 48 
 
 v. Hillegas 35, 48 
 
 Came v. Brigham 372 
 
 Camp v. Wardens of Church of St. Louis 236, 289 
 
 Campbell v. Rogers 256 
 
 Canal Co. v. R. R. Co , 508 
 
 v. Sansom 101 
 
 Canandaigua and Niagara Falls R. R. Co. v. Payne 172, 191, 200, 204 
 
 Canning v. Williamstown 494 
 
 Carey v. Berkshire R. R. Co 232, 256, 260, 262 
 
 Carlisle v. Terre Haute and Richmond R. R. Co 71, 79, 98 
 
 Carman v. Steubenville and Indiana R. R. Co 236, 238, 239 
 
 CarpeDter v. County Commissioners of Bristol 167, 506, 507 
 
 Carpue v. London and Brighton R. Co 493 
 
 Can- v. Georgia R. R. and Banking Co 169, 225 
 
 v. Lancashire and Yorkshire R. Co 463 
 
 v. Le Fevre 1 29, 372 
 
 Carradine v. O'Connor 531 
 
 Carroll v. N. Y. and K. H. R. R. Co '. 476 
 
 Catchpole v. R. Co 246 
 
 Center v. Finney 275 
 
 Central Bridge Corp. v. Bailey 519 
 
 Central Military Tract R. R. Co. v. Rockafellow 269, 323, 330 
 
 Central Plank Co. v. Clemens 76, 97 
 
 Central Turnpike Co. „. Valentine 68, 71 
 
 Chapin v. Boston and Providence R. R. Corp 202 
 
 Chapman v. Albany and Schenectady R. R. Co 179, 181, 182 
 
 v. Atlantic and St. Lawrence R. R. Co 313, 319 
 
 v. Mad River and Lake Erie R. R. Co 71, 79, 89, 509 
 
 Charles River Bridge v. Warren Bridge 12, 22 
 
 Charlotte and South Carolina R. R. Co. «.-Blakeley 58, 60, 363, 369 
 
 Charlestown Branch R. R. Co. v. County Commissioners 218 
 
 Chase i'. Sutton Manuf. Co 180 
 
 Cheaney v. Hooser Ill, 115 
 
 Cheney v. BoBton and Maine R. R. Co 254, 491, 492 
 
 Chesapeake and Ohio Canal Co. v. Baltimore and Ohio R. R. Co. 10, 19, 
 
 155 
 b 
 
XV111 TABLE OF CASES. 
 
 Page 
 
 Chesley v. Pierce B 10 
 
 Chester Glass Co. v. Dewey 59 
 
 Chicago, Burlington and Quincy R. E. Co. v. Wileon 13, 150, 219, 507 
 
 Chicago and Mississippi R. R. Co. v. Patchin 323, 330, S32, 4*70 
 
 Chicago and Rock Island R. R. Co. u. Ward 353 
 
 v. Warren 446, 466 
 
 Chippendale v. Lancashire and Yorkshire R. Co 463 
 
 Choteau v. Steamboat St. Anthony 430, 433, 434 
 
 Church v. Sterling 142 
 
 Cincinnati, Columbus, and Cleveland R. R. Co. v. Eliott..277, 328, 332, 350 
 
 1/. Keary 306 
 
 Cincinnati, HamiltoD, and Dayton R. R. Co. v. Waterson 328, 330, 350 
 
 Cincinnati, Wil., and Zanesville R. R. Co. v. Commissioners of Clinton 
 
 County 109, 113, 115, 120, 124, 507 
 
 Citizens' Bank v. Nantucket Steamboat Co 430, 434 
 
 City of Bridgeport v. Housatonic R. R. Co 112, 115, 124 
 
 City of Roxbury v. Boston and Providence R. R. Corp 37, 44 
 
 City of St. Louis and County of St. Louis v. Alexander 115, 120 
 
 Clarence R. Co. v. Great North of Eogland, &o. R. Co 11, 14 
 
 Clark v. Barnwell 467, 468 
 
 ■o. Boston, Concord and Montreal R. R. Co 168, 189, 227 
 
 v. Common Council of City of Washington 240 
 
 v. Faxton 417 
 
 v. Foot 311 
 
 v. Monongahela Nav. Co , 65, 78, 190 
 
 o. Saybrook 174, 190, 223 
 
 v. Spence 501 
 
 v. Syracuse and TJtica R. R. Co 324, 341, 346, 354 
 
 Clarke v. City of Rochester 121 
 
 v. Needles 428 
 
 ■v. School District 3*72 
 
 Clarkson v. Hudson River R. R. Co 214 
 
 Clay ards v. Dethick 282 
 
 Clement v. Canfield 244 357 
 
 Clendaniel v. Tuckerman 43g ^gg 
 
 Cleveland, Painesville and Ashtabula R. R. Co. v. City of Erie. . 10 
 
 Clippinger v. Hepbaugh 004. 
 
 Coates v. Mayor, &c. New York . q 
 
 Cohen v. Frost .„„ 
 
 Colcock v. L. C. and C. R. R. Co ogo oog 
 
 Cole v. Goodwin * 
 
 Coleman v. Eastern Cos. R. Co gg 398 40 „ fift 
 
 Collett v. London and N. W. R. Co 24.4 4«s' aoo 
 
 Collins v. Boston and Maine R. R 4 0g ' ' 
 
TABLE OF CASES. XIX 
 
 Page 
 
 Columbia Ins. Co. v. Curteniua 178 
 
 v. Peoria Bridge Co 1*78 
 
 Columbus, Piqua and Indiana R. R. Co. u. Ind. and Bellefon. R. R. Co. 144, 
 
 404 
 
 Colvin v. Liberty and Abington Turnpike Co 78 
 
 Commonwealth v. Alger 177 
 
 ■v. Boston and Maine R. R. Co 167, 177, 205, 506 
 
 v. Erie and North East. R. R. Co 9, 10 
 
 v. Fisher 175 
 
 ■v. FitchburgR. R. Co 217 
 
 ■v. M'Williams 1 1 0, 1 1 1 
 
 v. Nashua and Lowell R. R. Co 11, 232 
 
 v. New Bedford Bridge 232 
 
 v. Painter 120 
 
 v. Power. 249, 489, 490 
 
 v. Quarter Sessions 1 20 
 
 „. Tenth Mass. Turnpike Corp S08 
 
 v. Vt. and Mass. R. R. Corp 232 
 
 Company, <fee. v. Theobald 69 
 
 Concord R. R. v. Greely 201, 202, 205 
 
 Conn, and Passumpsio Rivers R. R. Co. v. Bailey, 72, 73, 74, 76, 77, 78, 100, 
 
 103, 107, 126 
 
 Contoooook Valley R. R. Co. v. Barker 100 
 
 Cook v. Champlain Transportation Co. . t 314, 316 
 
 v. Parham 289, 295, 299, 808 
 
 Coon v. Syracuse and Utiea R. R. Co 293, 298, 305, 307, 308, 309 
 
 Cooper v. Alden 182 
 
 Cope v. Albinson 365 
 
 Copes v. Thames Haven Dock and R. Co 370 
 
 Cornwall v. Sullivan R. R. Co 322, 340, 344, 351, 474 
 
 Corwin v. N. T. and Erie R. R. Co 322, 336, 345 
 
 Coster v. N. J. R. R. and Transportation Co 165, 170, 214 
 
 Cotton v. County Commissioners of Leon County 115, 120, 123 
 
 Covington, &c. Plank Road Co. v. Moore 60, 76 
 
 Cox v. Midland Counties R. Co 370, 373 
 
 Coxe v. Heisley 413, 423 
 
 Craig v. City of Vieksburg 372 
 
 CranBton v. C. H. and D. R. R. Co 322, 328, 329, 331, 332, 350 
 
 Crawfordsville and Wabash R. R. Co. v. Wright 169, 228, 233, 235 
 
 Crawshay v. Homfray 460 
 
 Crease v. Babcock 39 
 
 Crocker v. Crane 64, 76, 77, 126 
 
 v. New London, Willimantia, and Palmer R. R. Co. 233, 235, 253, 
 
 492, 505 
 Cross v. Pinckneyville Mill Co 59, 66 
 
XX TABLE OF CASES. 
 
 Page 
 
 Crossman v. Penrose Ferry Bridge Co * 3, 
 
 Crouch?;. Great Northern R. Co 46 * 
 
 v. London and N. W. R. Co 413, 414,458 
 
 Crowner v. "Watertown and Rome R. R. Co 165 > 166 
 
 Cruger v. Hudson River R. R. Co 16>I > 214 
 
 Cumberland Valley R. R. Co. o. Hughes 245 
 
 „.Baab 71,863,369 
 
 Cunliffe v. Manchester and Bolton R. Co 509 
 
 Curtis v. Harlow 610 
 
 v. Vt. Central R. R. Co 405 
 
 Curtiss v. Rochester and Syracuse R. R. Co 474, 494, 495 
 
 Cuehman v. Smith 163, 171, 114, 231 
 
 Cutler v. Middlesex Factory Co 102 
 
 D. 
 
 Daly v. Thomson, , 129 
 
 Danbury and Norwalk R. R. Co. v. Wilson, 58, 60, 76, 78, 101, 105, 107, 108 
 
 Dand v. Kingseote 3 
 
 Banner v. S. C. R. R. Co 327, 331, 357 
 
 Davidson v. Graham 417, 421, 422, 468 
 
 Danville Bridge Co. v. Pomroy 377, 381 
 
 Davis v. Cayuga and Susquehanna R. R. Co 497, 501 
 
 v. Lamoille County Plank Road Co 244 
 
 v. London and Blackwall R. Co 229 
 
 v. Sharpe 510 
 
 Dartmouth College v. Woodward 1,19 
 
 Dater v. Troy Turnpike and R. R. Co 235 
 
 Davidson v. Boston and Maine R. R 177, 186, 212 
 
 Davies v. Mann 275, 323 
 
 Dean v. Sullivan R. R. Co 351 
 
 Deane v. Clayton 323 
 
 Debolt v. Ohio Life Insurance and Trust Co 1 2, 35 
 
 De Camp v. Eveland 39 
 
 Dearborneu. Boston, Concord, and Montreal R. R. Co., 168,169, 189, 224, 229 
 
 Dibble v. Brown 49g 
 
 De Forest v. Wight 236 
 
 De Mott v. Laraway 4^g 
 
 Denton v. Great N. R. Co 400 
 
 De Ruyter v. St. Peter's Church 61g ^ gQ 
 
 Derwort v. Loomer .h 
 
 Diggle v. London and Blackwall R. Co ' „» 
 
 Dill v. S. C. R. R. Co ',"'"' g01 
 
 Directors of Poor of York County v. Wrightsville and York R. R. Co 1 67 
 
TABLE OF CASES. XXI 
 
 Page 
 Dixon v. Boville 289, 372 
 
 v. Ranken 289 
 
 Dodge v. County Commissioners of Essex 168,169, 185, 223, 225,229 
 
 v. Woolsey 35, 509 
 
 Donnaher v. State 183 
 
 Dorrti. N. J. Steam NaT. Co 413,417,421 
 
 Doughty v. Somerville and Easton R. R. Co 13, 164, 214, 218 
 
 Dovaston v. Payne 338 
 
 Doyle v. Kiser 413, 423, 497, 498, 501, 502 
 
 Drake v. Hudson River R. R. Co 181, 183 
 
 Draper v. Worcester and Norwich R. R. Co 405 
 
 Duncuft v. Albrecht 127 
 
 .Dubois v. Delaware and Hudson R. R. Co 376, 382, 383, 384 
 
 Dunlop v. Higgins 367 
 
 Dwight v. Brewster 406 
 
 Dyckman v. Mayor, <fec, of New York 214 
 
 E. 
 
 East Anglian R. Co. v. Eastern Cos. R 398, 399, 400 
 
 East India Co. o. Pullen 429 
 
 Eastern Counties R. Co. v. Broom 233, 234, 235 
 
 v. Hawkes 13,398, 402 
 
 Easton v. Penn. and Ohio Canal Co 378 
 
 Easton Bank v. Commonwealth 35 
 
 Eaton v. Whiting 531 
 
 Eden v. Lexington and Frankfort R. R. Co 256 
 
 Edwards v. Great Western R. Co 415 
 
 Eldridge v. Long Island R. R. Co 475 
 
 Eliason v. Henshaw 367 
 
 Elkins v. Boston and Maine R. R. Co 406, 408, 412, 464 
 
 Ellicottville, ifcc, Plank Road Co. v. Buffalo and Erie R. R. Co 165 
 
 Ellis «. Portsmouth and Roanoke R. R. Co 315, 358 
 
 ■u. Sheffield Gas Consumers' Co 238 
 
 v. Willard 459 
 
 Elmore v. Naugatuck R. R. Co 453, 457 
 
 Enders v. Board of Public Works 513, 519 
 
 Enfield Toll Bridge Co. v. Conn. River R. R. Co 508 
 
 v. H. and N. H. R. R. Co 11, 29, 147, 149, 155, 
 
 157, 160, 167, 173 
 
 Erie and North East. R. R. Co. v. Casey 19, 39, 508 
 
 Erie and Waterford Plank Road Co. v. Brown 65 
 
 Eward v. Lawrenceburgh and Upper Mississippi R. R. Co 211 
 
 Ex Parte Eyre I 69 
 
 Martin 164 
 
 South Carolina R. R. Co 150, 218 
 
XXli TABLE OE CASES. 
 
 F. 
 
 Page 
 Farmers' and Mechanics' Bank v. Champlain Trans. Co. 417, 420, 423, 433, 
 
 434, 449, 451, 456 
 
 Farwell v. Boston and Worcester R. R. Corp 289, 300, 305, 487 
 
 Farrar v. Adams *" 
 
 Faunce v. Burke 380, 382, 387 
 
 Fawcett v. York and North Midland R. Co 342 
 
 Fay, Petitioner 518 
 
 Fellows v. Commercial and R. R. Bank of Vicksbuxg.'. 530 
 
 Felton v. Deall 518 
 
 Ferris v. Van Buskirk 354 
 
 Ffooksv. London and S. W. R. Co 509 
 
 Finlay v. Bristol and Exeter R. Co 370 
 
 Finnie v. Glasgow and S. W. R. Co 462 
 
 First Baptist Church of Schenectady v. Schenectady and Troy R. R. Co. 
 
 221, 248 
 
 Fish v. Chapman 417; 421 
 
 Fisher -o. Clisbee 488 
 
 v. Evansville and Crawfordsville R. R. Co 71, 98 
 
 Fisk v. Newton 449 
 
 Fitch v. Newberry 414, 460, 500 
 
 Fitchburg R. R. Co. o. Boston and Maine R. R. Co 176, 506 
 
 Fitzpatrick v. Ne w Albany and Salem R. R. Co 302 
 
 Fletcher v. Auburn and Syracuse R. R. Co 174, 179, 182 
 
 Forster v. Cumberland R. R. Co 231 
 
 Fort Miller and Fort Edward Plank Road Co. v. Payne. 72, 75, 100, 101, 105 
 
 Forward v. Pittard 410 
 
 Fox v. Harding 3gg 
 
 ■0. M'Gregor 482 
 
 Frink v. Potter 470, 471 475 
 
 Fowler v. Kennebec and Portland R. R. Co 377 
 
 Fowles v. Great Western R. Co 45g 
 
 Franklin Glass Co. v. Alexander , . . 103 
 
 v. White _ 102 
 
 Freeman v. Winchester 10o 
 
 Fuller v. Dame 005 
 
 v. Naugatuck R. R. Co 371 ^q 475 
 
 Furniss v. Hudson River R. R. Co 168' 225 
 
 G. 
 
 Gage v. Newmarket R. Co .. 
 
 Galena and Chicago Union R. R. Co. v. Fay ' '.,..' .*„ 
 
 v - Loomis V.41,'278,'357 
 
 * Yal - W0 °d 470,475,476, 489, 493 
 
TABLE OF CASES. XXU1 
 
 Page 
 
 Gardner v. State 34, 48 
 
 Garris v. Ports, and Roanoke R. R. Co 328 
 
 Garside v. Trent and Mersey Nay. Co 437, 454 
 
 General Steam Nav. Co. v. Morrison 278 
 
 Gerhard v. Bates 244 
 
 Gibson v. Culver 434, 449 
 
 Giesy«. C. W. and Z. R. R. Co 148, 149, 150, 172, 204, 211 
 
 Gildart v. Gladetooe 12 
 
 Giles v. Taff R. Co 233 
 
 Gillenwater v. Madison and Indianapolis R. R. Co 301, 305,471,483 
 
 v. Mississippi and Atlantic R. R. Co 170 
 
 Gillshannon v. Stuny Brook R. R. Corp 292, 303, 307 
 
 Girtman v. Central R. R 46 
 
 Gleaves v. Brick Church Turnpike Co 59, 60 
 
 Glover v. London and N. W. R. Co 233 
 
 </. North Staffordshire R. Co 198 
 
 Gojjdin v. Crump 114, 115 
 
 Gold v. Vt. Central R..R. Co 506 
 
 Goodspeed v. East Haddam Bank 233 
 
 Goold v. Chapin 436, 499 
 
 Gordon v. Appeal Tax Court 35, 48 
 
 v. Preston 513 
 
 Goshen Turnpike Co. v. Hurtin 100 
 
 Gould v. Glass 162 
 
 v. Hudson River R. R. Co 173, 175 
 
 Gourdier v. Cormack 236, 238, 239 
 
 Gov. & Co. of Copper Mines v. Fox 361, 395 
 
 Graham v. Davis 417, 421, 422, 468 
 
 Grant v. Franklin Ins. Co 129 
 
 Gray v. Hook 394 
 
 Gray v. Monongahela Nav. Co : 78, 90 
 
 Grayble v. York and Gettysburg Turnpike Co 66 
 
 Great Northern R. Co. «. Eastern Cos. R. Co 398 
 
 v. Harrison 245, 465, 483, 488 
 
 a. Manchester, &c. R. Co 146 
 
 v. Shepherd 429, 496, 601 
 
 Great West. R. Co. v. Goodman 430 
 
 ■v. Rushout 509 
 
 v. Thompson 320, 330 
 
 Green v. Clarke 464 
 
 v. Morris and Essex R. R. Co 225 
 
 Greenland v. Chaplin 277 
 
 Greenville aad Columbia R. R. Co. v. Catchcart 100 
 
 v. Coleman 90 
 
 v. Nunnamaker 196 
 
XXIV TABLE OF CASES. 
 
 Page 
 
 Greenville and Columbia R. R. Co. v. Partlow 195, 204, 205, 207 
 
 v . Smith 57, 58, 73, 76 
 
 v. Woodsides 65 > 66 
 
 Griffith v. Commissioners of Crawford County. 
 
 Grinnell et al. Trustees of Sandusky, Mansfield and Newark R. R. Co. .512. 
 
 H. 
 
 H. P. M. and L. R. R. Co. v. Bueher 21S 
 
 Hall v. Conn. River Steamboat Co 4*0 
 
 „.Hall 36^ 
 
 v. N. J. Steam Nav. Co 410 
 
 v. Power 252 
 
 v. Sullivan R. R. Co 511, 520, 531,535 
 
 v. U. S. Ins. Co ;11 
 
 Halloran v. N. Y. and Erie R. R. Co j 336, 341, 356 
 
 Hamilton v. Annapolis and Elk Ridge R. R. Co 162, 508 
 
 -„• Lycoming Mut. Ins. Co 367 
 
 v. N. Y. and Harlem R. R. Co 181, 183, 247 
 
 Hamilton College v. Stewart 369 
 
 Hamilton and Deansville Plank Road Co. v. Rice 58, 60, 69, 101 
 
 Hancock v. York, Newcastle, and Berwick R. Co 247 
 
 Hankins v. Lawrence 162, 171 
 
 Haring v. N. Y. and Erie R. R. Co 262, 274, 277, 278, 284 
 
 Harmony u. Bingham 412, 462 
 
 Hartford and N. H. R. R. Co. v. Kennedy 60, 100, 105 
 
 Harvard Branch R. R. Corp. *. Rand 205 
 
 Harris v. Rand • 459 
 
 Harris v. Roof 394 
 
 Harrison v. Great Northern R. Co 381 
 
 v. Lexington and Ohio R. R. Co 508 
 
 ■a. Young 22, 204 
 
 Harrow v. Vansittart 3 
 
 Hart v. Missouri State Mut. F. and M Ins. Co 395 
 
 v. Rensselaer and Saratoga R. R. Co 428, 455, 499 
 
 v. Western R. R. Corp 319 
 
 Hartfield v. Roper 279 
 
 Hartford and N. H R. R. Co. v. Boorman 177 
 
 ■a. Croswell 78,79, 82 
 
 Har'tshore v. Johnson 4g0 
 
 Hastings v. Pepper 412 
 
 Hatch v. Vt. Central R. R. Co 162, 173, 174, 175, 181, 184, 190 206 
 
 222, 223, 229, 246, 248 
 
TABLE OF CASES. XXV 
 
 Page 
 
 Hawcroft v. Great N. E. Co 490 
 
 Hawkes v. Eastern Counties R. Co 145 
 
 Hawkins v. Hoffman 496, 497, 498 
 
 Hawthorne v. Newcastle, &o., R. Co 379 
 
 Hayes v. Western R. R. Corp 292, 307 
 
 Hays v. Riddle 461 
 
 Hazen v. Boston and Maine R. R. Corp 169, 218, 229 
 
 Hegeman v. Western R. R. Corp 470, 473, 475, 493, 495 
 
 Henderson and Nashville R. R. Co. v. Leavell 71,75 
 
 Hennessey v. Farrell 378, 387 
 
 Henry v. Dubuque and PaeificR. R. Co.. 161, 172, 193, 197, 204,212, 322, 346 
 
 v. Pittsburg and Allegheny Bridge Co 173, 222 
 
 v. Rutland and Burlington R. R. Co 397 
 
 v. Vermillion and Ashland R. R. Co 65, 74 
 
 Hentz v. Long Island R. R. Co 181, 217, 247 
 
 Herbein v. Phil, and Reading R. R. Co : 205 
 
 Her,kimer Manufae. and Hydraulic Co. o. Small 100 
 
 Herman o. Drinkwater 501 
 
 Herrick v. Belknap and Vt. Central R. R. Co. . .382, 383, 385, 386, 387, 610 
 
 v. Randolph 35 
 
 Herring v. Wil. and Ral. R. R. Co 273, 281, 282, 285, 315, 357, 358 
 
 Hey ward v. Mayor of New York 147, 161, 180 
 
 Hibbard v. N. Y. and Erie R. R. Co 492 
 
 Hibblewhite ■„. M'Morine 128 
 
 Hibernia Turnpike v. Henderson 64 
 
 Hickox v. Cleveland 166, 174 
 
 Higgins v. Butcher 256 
 
 Highland Turnpike Co. v. M'Kean 66 
 
 Hightower v. Thornton 510 
 
 Hill v. Mohawk and Hudson R. R. Co 211 
 
 Hilliard •„. Goold 253, 462, 492 
 
 D.Richardson 236, 238, 239, 240 
 
 Hinton v. Dibbin • 477 
 
 Hobbitt v. London and N. W. R. Co 236 
 
 Hodges v. Buffalo 396 
 
 v. Rutland and Burlington R. R. Co 397 
 
 Hodgkinson v. Long Island R. R. Co 181, 247 
 
 Holbrooke Utica and Schenectady R. R. Co 476,493 
 
 Hollister v. Nowlen 417, 430,496 
 
 Honner v. 111. Central R. R. Co 290,292, 307, 310 
 
 Hood jj. N. Y. andN. H R. R. Co 137, 395, 396, 453, 457, 499 
 
 Hooker v. N. H. and Northampton Co 221, 228, 230 
 
 v. Utica and Minden Turnpike Co 513 
 
 Horn v. Atlantic and St. Lawrence R. R. Co 335 
 
 Hosea v. M'Crory 433 
 
XXVI TABLE OF CASES. 
 
 Page 
 
 Housatonic R. R. Co. v. Waterbury 334 
 
 Hubgh„. N. 0. and C. R. R. Co 256, 263, 290, 294 
 
 Huddersfield Canal Co. a. Buckley H 
 
 Hudson and Delaware Canal Co. v. N. Y. and Erie R. R. Co 218, 509 
 
 Hudson River R. R. Co. v. Outwater ." 168, 214, 218 
 
 Hueston *. Hamilton and Eaton R. R. Co 168, 225, 231 
 
 Hughes v. Great Western R. Co 411 
 
 v. Providence and "Worcester R. R. Co 232 
 
 Hunt v. Haskell 459, 462 
 
 v. Test 394 
 
 Huntress 412, 413 
 
 Hurd v. Rutland and Burlington R. R. Co 320, 322, 335, 345, 347, 353, 
 
 354, 366 
 Hutchinson v. York, Newcastle, &c, R. Co.. 263, 290, 292, 293, 295,298, 299 
 
 Huyett v. PhiL and Reading R. R. Co 269, 282, 312, 316 
 
 Hyde v. Trent and Mersey Hav. Co 437 
 
 Illinois Central R. R. Co. o. County of M'Lean 35, 36, 54 
 
 ■o. Reedy 235, 323, 330, 357, 358, 505 
 
 v. Rucker 219, 507 
 
 Illinois and Michigan Canal v. Chicago and Rock Island R. R. Co 24 
 
 Indiana Central R. R. Co. ■«. Hunter 193, 207 
 
 ■i>. State 167 
 
 Indiana and Ebensburgh Turnpike Co. v. Phillips 82 
 
 Ingalls v. Bills 47 2, 475 
 
 InBtone v. Frankfort Bridge Co 100, 107 
 
 Irvin a. Turnpike Co 82 
 
 Ives v. Sterling 59, 369 
 
 Jackson ». Brown 513 
 
 v. Rutland and Burlington R. R. Co 322 327 341 344 
 
 Jacob «. Louisville 212 
 
 Jay Blidge Corp. v. Woodman 103 
 
 Jencks v. Coleman . go 
 
 Jenkins v. Union Turnpike Co g< ,q, 
 
 Jenneson v. Camden and Amboy R. R. Co . ~h 
 
TABLE OF OASES. XXVH 
 
 Page 
 
 Johns v. Johns 121 
 
 Johnson v. Midland R. Co 413 
 
 a. Stone 497, 602 
 
 Jones v. Portsmouth and Concord R. R 390 
 
 v. Richardson 530 
 
 v. Voorhies 417, 423, 497 
 
 v. W. Vt. Central R. R. Co ' 137, 234 
 
 Jordan v. Fall River R. R. Co 430, 486, 496, 497, 498 
 
 Jorden v. Phil., Wil., and Bait. R. R. Co 509 
 
 Jowitt v. Lewis 519 
 
 Judah v. American Life Ins. Co 65 
 
 Justices of Clark County Court v. Paris, Winchester, and Kentucky 
 
 River Turnpike Co 116, 124, 507 
 
 K. 
 
 Keana. Johnson and Central R. R. Co 78,79, 89, 609 
 
 Keegan v. Western R. R. Corp 294, 297, 298, 309 
 
 Keith v. Cheshire R. R. Corp 231 
 
 Kelly v. Mayor of Brooklyn 372 
 
 Kelsey v. Barney 269 
 
 Kennard v. Burton 275, 282 
 
 Kennebec and Portland R. R. Co. v. Jarvis 69, 101, 369 
 
 ii, Kendall 100, 103, 106, 107 
 
 v. Palmer. 60, 101, 369 
 
 v. Waters 73 
 
 Kent v. Hudson River R. R. Co 466 
 
 Kerwbacker v. Cincinnati, Columbus, and Cleveland R. R. Co. 277, 320, 328, 
 
 330, 332, 360 
 
 Kid well v. Baltimore and Ohio R. R. Co 382, 385 
 
 Kidwelly Canal Co. v. Raby 59 
 
 Kimball v. Rutland and Burlington R. R. Co 417, 420, 463 
 
 King v. Boston and Worcester R. R. Corp 290, 294, 308, 309 
 
 Kishacoquillas and Centre Turnpike Road Co. v. M'Conaby 76 
 
 Klein v. Alton and Sangamon R. R. Co 65, 100 
 
 Knight ji. Abert 329 
 
 v. Carrollton R. R. Co 14 
 
 Knors v. Germantown, <!tc, R. R. Co 219 
 
 Kortright v. Commercial Bank 129 
 
 Kreiga. Wells 279 
 
XXVlii TABLE OF CASES. 
 
 L. 
 
 Page 
 
 LAmoreux v. Gould 
 
 Lafayette and Indianapolis R. R. Co. v. Shriner. 323, 328, 336, 339, 341, 356 
 
 •„. Smith 168 
 
 Laing v. Colder 418, 421, 475, 476, 493, 494 
 
 Lamb v. Lane 1 64, 1 66 
 
 Lancashire and Yorkshire R. Co. v. Evans 229 
 
 Landon v. Littlefield 36 
 
 Lane v. Cotton 414 
 
 Langlois v. Buffalo and Rochester R. R. Co 295, 346, 355 
 
 Langworthy v. N. H. and Harlem R. R. Co 460, 464 
 
 Lansing v. Smith 222 
 
 Lawrenceburgh and Upper Mississippi R. R. Co. v. Montgomery. . .476, 485 
 
 Lawton v. Fitchburg R. R. Co 353 
 
 Lebanon v. Olcott 225 
 
 Lee v. Milner 12 
 
 Leedomti. Plymouth R. R. Co 515, 528, 530 
 
 Lehigh Coal and NaT. Co. v. Northampton County 54 
 
 Lesher v. Wabash Nav. Co 241 
 
 Leviston v. Junet R. R. Co 101, 169 
 
 Levy v. Cohen 367 
 
 Lewis v. Western R. R. Corp 447 
 
 Lexington and Ohio R. R. Oo. v. Applegate 152, 181, 183 
 
 Lexington and West Cambridge R. R. Co. v. Chandler 60, 69 
 
 Lincoln v. Saratoga and Schenectady R. R. Co 254 
 
 Lindsay «). Great ST. R. Oo 145, 370, 390 
 
 Linfield v. Old Oolony R. R. Corp 272 
 
 Lipford v. Charlotte and S. C. R. R. Co 411 
 
 Little ti. Lathrop 321, 337 
 
 Little Miami R. R. Co. •». Collett 211 
 
 ■i>. Naylor 12, 219, 229, 232 
 
 v. Stevens 306 
 
 Livermore v. Jamaica 206 
 
 Livingston v. Adams 311 
 
 v. Lynch 78 
 
 Locke v. Middlesex Turnpike Corp 81, 100 
 
 Logan v. Pontchartrain R. R. Co 417, 425, 498 
 
 Lombard v. Cheever 519 
 
 London and Birmingham R. Co. v. Grand Junet Canal Co 14 
 
 London and Brighton R. Co. a. Wilson ^ 90 
 
 London and S. W. R. Co. v. S. E. R. Co ; 401 
 
 Lord v. Wormwood 337 ; 338 
 
 Loring v, Aborn 491 
 
TABLE OF CASES. XXIX 
 
 Page 
 
 Louisville R. R. Co. v. LetsoD 504 
 
 Louisville and FraDkfort R. R. Co. „. Milton 328 
 
 Louisville and Nashville Branch Tarnpike Co. v. Nashville and Ken- 
 tucky Turnpike 218 
 
 Louisville and Nashville R. R. Co. v. County Court of Davidson, 116, 120, 
 
 124 
 
 Louisville and Portland Canal Co. v. Commonwealth 64 
 
 Lowe v. London and N. W. R. Co 870 
 
 v. Moss 459 
 
 Lowell v. Boston and Lowell R. R. Corp 233, 237, 240 
 
 Lucas v. N. Y. Central R. R. Co 259 
 
 it. Nockells 460 
 
 Ludlow v. N. Y. and Harlem R. R. Co 141 
 
 Lygo v. Newbold 279 
 
 Lyman v. Boston and Worcester R. R. Corp 44, 318 
 
 Lynch v. Nurdin 279, 281 
 
 Lyndsay v. Conn, and Passumpsic River R. R. Co 357 
 
 M. 
 
 M. C. P. R. R. Co. v. Talman 513, 530 
 
 M Arthur v. Sears 410 
 
 M'Cahill v. Kipp 282 
 
 M'Cauly v. Givens 518 
 
 M'Cready v. South Carolina R. R. Co 315 
 
 M'Culloch v. Maryland Ill 
 
 M'Cullough v. Moss. . .' 396 
 
 M'Daniel v. Emanuel 289 
 
 M'Elroy v. Nashua and Lowell R. R. Corp 245, 474, 487 
 
 M'Farland v. Wheeler 461 
 
 M'Gill v. Rowand 497, 501 
 
 M'Gregor v. Official Manager, &c. R. Co 398, 399 
 
 M'Henry v. Phil., Wil., and Bait. R R. Co 437, 448, 465 
 
 M'Intosh v. Great W. R. Co 382, 387 
 
 M'Intyre v. State 206 
 
 M'Kinney v. Neil 471, 493 
 
 M'Laren v. Pennington 39 
 
 M'Leod v. Burroughs 22 
 
 M'Laughlin v. Charlotte and S. C. R. R. Co 168, 171, 181 
 
 M'Mahon v. Cincinnati and Chicago Short Line R. R. Co 211 
 
 M'Millan v. Maysville and Lexington R. R. Co 71, 75 
 
 v. Saratoga and Washington R. R. Co 263, 293, 295 
 
XXX TABLE OP OASES. 
 
 Page 
 
 M'Rae v. Russell 66 
 
 Macedon and Bristol Plank Road Co. v. Lapham 79, 83 
 
 v. Snediker. 71, 72, 100 
 
 Macintosh v. Midland Cos. R. Co 379, 389 
 
 Macon and W. R. R Co. „. Davis. 269, 272, 273, 275, 277, 282, 336, 510 
 
 ■v. Parker 530 
 
 Mactier v. Frith 367 
 
 Mad River and Lake Erie R. R. Co. v. Barber 294, 295, 296, 297 
 
 v. Fulton 501, 502 
 
 Madison and Indianapolis R. R. Co. v. Bacon 263, 289, 293 
 
 v. Whiteneck 41 
 
 Mahon v. Utica and Schenectady R. R. Co 174, 179 
 
 Manchester and Lawrence R. R. Co. v. Fisk 462 
 
 Manchester, Ac. R. Co. o. Wallis 339, 341 
 
 Mann v. Cooke 74 f log, 510 
 
 v. Currie 74, 105, 510 
 
 v. Pentz 74 ; 510 
 
 Mansfield and Sandusky R. R. Co. v. Veeder 382 
 
 March v. Portsmouth and Concord R. R 189, 202, 205 
 
 Marriott v. Stanley. 282 
 
 Marlborough Manufac. Co. ». Smith 129 
 
 Marsh v. N. Y. and Erie R. R. Co 45, 324, 336, 339, 341 
 
 Marshall v. Baltimore and Ohio R. R. Co 392, 415, 604 
 
 v. York, Newcastle, and Berwick R. Co 244, 465, 488 
 
 v. Stewart 263, 293, 297 
 
 Martin v. Black 357 
 
 v. Great N. R. Co 474 ; 476 
 
 Maryland v. Baltimore and Ohio R. R. Co 231 
 
 Mason v. Kennebec and Portland R. R. Co 168, 169, 188, 228 
 
 Masterton v. Mayor, Ac., Brooklyn 388 
 
 Matter of Furman street 204 
 
 Hamilton Avenue 22 
 
 Long Island R. R. Co 5, 12, 192 
 
 Long Island R. R. Co. and M'Conoehie 346 
 
 Mohawk and Hudson R. R. R. Co 5 
 
 N. Y. Central R. R. Co 213 
 
 Phil, and Trenton R. R. Co I73 jgl 184 
 
 Rensselaer and Saratoga R. R. Co 192 346 474 
 
 WeW > V.... '....'.437 
 
 William and Anthony streets jog 204 
 
 Mayall v. Boston and Maine R. R 409 ' 4gl 
 
 Maybina. S. C. R. R. Co '" ' 4fi . 
 
 Mayor, Ac. Allegheny v. Ohio and Penn. R. R. Co , 
 
 Mayor, Ac. Baltimore v. Baltimore and Ohio R. R. Co 35 g g 48 
 
 Mayor of Colchester v. Brooke ' ' 
 
TABLE OP CASES. XXXI 
 
 Page 
 
 Mayor, &c. New York v. Bailey 236, 240 
 
 Mayor, &c Norwich v. Norfolk R. Co 13, 390, 398, 400, 402 
 
 Maysvilleu. Boon 518 
 
 Meaeham v. Fitehburg B. B. Co 204, 209, 506 
 
 Meadow Dam Co. v. Gray 97, 100 
 
 Mechanics and Traders' Bank v. Debolt 85 
 
 v. Gordon 433 
 
 Mechanics' Bank v. N. T. and N. H. E. R. Co., 129, 130, 135, 234, 372, 373 
 
 Mercantile Mut. Ins. Co. v. Chase 421 
 
 Merriam v. Hartford and N. H. R. R. Co 360, 425, 426 
 
 Merrihew v. Milwaukee and Mississippi R. R. Co 253, 490 
 
 Merrill v. Ithaca and Owego R. R. Co 376, 405 
 
 Meynell v. Surtees 361 
 
 Michigan Central R. R. Co. •„. "Ward 417, 421, 446, 451 
 
 Middlesex Turnpike Corp. v. Locke 81, 100 
 
 v. Swan 81, 102 
 
 Midland R. Co. v. Bromley 468, 498 
 
 v. Day kin 334 
 
 Midland Great Western R. Co. „. Gordon 59, 78, 90 
 
 Mifflin v. Penn. R. R. Co 173, 181, 193, 222 
 
 Milhau v. Sharp 179, 181, 182 
 
 Miller v. Auburn and Syracuse R. R. Co 175, 179, 222 
 
 v. N. Y. and Erie R. R. Co 38 
 
 Milliman v. Oswego and Syracuse R. R. Co 45 
 
 Milwaukee and Mississippi R. R. Co. v. Eble 165, 193, 200, 204, 211 
 
 Miners' Bank v. United States 39 
 
 Mitchell v. Penn. R. R. Co 290 
 
 v. Rome R. R. Co 65, 83, 373, 375 
 
 Moale v. Mayor, Ac. Baltimore Ill 
 
 Mobile and Cedar Point R. R. Co. v. Talman 513, 530 
 
 Moers v. City of Reading 115, 120 
 
 Mohawk Bridge Co. v. Utica and Schenectady R. R. Co. . .25, 215, 247, 510 
 
 Mohawk and Hudson R. R. Co. v. Clute 54, 65 
 
 Monongahela Nav. Co. o. Coons 173, 181, 222 
 
 Montgomery and West Point R. R. Co. v. Varner. 200 
 
 ■d. Walton 165 
 
 Moore v. Central R. R. Co 273, 275, 282, 284 
 
 v. City of New York 161 
 
 ■o, Evans 421 
 
 v. Hudson River R. R Co 390 
 
 v. R. R. Co 269 
 
 Moorehead v. Little Miami R. R. Co 12, 219 
 
 Morgan v. Bowman 236 
 
 v. King 175 
 
 Morris Canal and Banking Co. v. Fisher 129, 372 
 
XXxii TABLE OF CASES. 
 
 Page 
 
 Morris Canal and Banking Co. v. Nathan " 2 
 
 Morris and Essex R. R. Co. ». Blair 217, 218 
 
 Morrison v. Davis •* 
 
 v. General Steam Nav. Co 278 
 
 Morse v. Auburn and Syracuse R. R. Co 255, 494, 495 
 
 „. Rutland and Burlington R. R. Co 284, 322, 327, 340, 357 
 
 „.Slue 414 
 
 Morss v. Boston and Maine R. R. Co 322, 362, 353 
 
 Morville v. Northern R. Co 463 
 
 Moses v. Boston and Maine R. R. Co 396, 405, 417, 420, 423, 428, 444 
 
 Moshier v. Utica and Schenectady R. R. Co 269, 272 
 
 Moss v. Oakley 377, 510 
 
 Munger v. Tonawanda R. R. Co 279, 320, 324, 346 
 
 Munroe v. Leach 282 
 
 Munt a, Shrewsbury and Chester R. Co 89 
 
 Muschamp v. L. and P. Junct. R. Co 458 
 
 Murch v. Concord R. R. Corp 245, 273, 282, 474, 476, 485, 488, 489 
 
 Murray v. South Carolina R. R. Co 289 
 
 N. 
 
 Napier v. Poe 64 
 
 Nashville and Chattanooga R. R. Co. v. Oowardin 150 
 
 v. Messino... .335, 344, 470, 471, 486 
 
 Naugatuck R. R. Co. ■<,. Waterbury Button Co 396, 453 
 
 Neal v. Gillett 276, 279 
 
 Nelson v. Vt. and Canada R. R. Co 41, 45, 244, 403, 512 
 
 Nesbitt v. Delaware and Hudson Canal Co 384, 386 
 
 Nettles v. S. C. R. R. Co 411,466 
 
 Nevitt v. Bank of Port Gibson 510 
 
 New Albany and Salem R. R. Co. v. Conelly 162, 168 
 
 New Albany R. R. Co. v. Pickens 76, 77 
 
 New Bedford and Bridgewater Turnpike Corp. v. Adams 100, 102 
 
 N. H. Central R. R. Co. v. Johnson 57, 58, 70, 71, 73, 100, 103, 107 
 
 New Jersey v. Wilson 36 
 
 N.J. R. R. Co. v. Kennard ". 471, 476 
 
 N. J. Steam Nav. Co. o. Merchant's Bank 413, 417, 424, 422, 464, 468 
 
 N. O. and Carrollton R. R. Co. v. New Orleans 14 
 
 New Orleans, Jackson, and Great Northern R. R. Co. v. Harris. . . .20, 78, 
 
 79, 84 
 
 N. Y. and Erie R. R. Co. v. Sabin 4g go 
 
 v. Skinner 320, 322, 323, 328, 329, S43 
 
 N. Y. and Harlem R. R. Co. v. Story _ 3gg 
 
TABLE OF OASES. XXX1U 
 
 Page 
 
 New York and N. H. R. R. Co. v. Pixley 363, 364, 367 
 
 Newark Plank Road Co. v. Elmer 11, 1*78, 510 
 
 Newburyport Bridge v. Story 102 
 
 Newcastle and Richmond R. R. Co. v. Brumback 211 
 
 v. Peru and Indianapolis R. R. Co. 25, 
 156, 217 
 
 Newhall v. Galena and Chicago Union R. R. Co 10, 97 
 
 Nichols v. City of Bridgeport Ill, 206, 208 
 
 •«. Mayor, &c. Nashville 114. 115, 123 
 
 Nicholson v. N. Y. and Erie R. R. Co 179, 190, 206, 208/223, 230 
 
 Nolton v. Western R. R. Corp 245, 488 
 
 Norris v. Androscoggin R. R. Co •. . . . .41, 327, 335, 474 
 
 North Eastern R. R. Co. v. Payne 216 
 
 v. Sineath 193, 195, 322, 327, 328, 331, 357 
 
 North River Bank v. Aymar, 130 
 
 Northern R. R. v. Concord and Claremont R. R 162, 156, 217 
 
 v. Miller 96, 100, 105, 107 
 
 v. Page 253, 491 
 
 Northern Indiana R. R. Co. v. Mich. Central R. R. Co 604 
 
 Northrop v. Newton and Bridgeport Turnpike Co 129 
 
 Norway Plains Co. v. Boston and Maine R. R 408, 441, 450, 451 
 
 Norwich v. County Commissioners of Hampshire Ill 
 
 Norwich and Worcester R. R. Co. v. Cahill 375 
 
 Noyes v. Rutland and Burlington R. R. Co 137, 396, 428, 453 
 
 </. Smith, 297 
 
 v. Spaulding 128, 129 
 
 Null v. White Water Canal Co 168, 225 
 
 Nutting v. Conn. River R. R. Co 456 
 
 o. 
 
 O'Donnell v. Bailey 35 
 
 Ogden v. Marshall 466 
 
 Ogdensburgh, Rome, and Clayton R. R. Co. v. Frost 65, 100, 105, 107 
 
 Ohio Life Insurance and Tru9t Co. v. Debolt 12, 35 
 
 Ohio and Mississippi R. R. Co. v. City of Aurora 115 
 
 Oldtown and Lincoln R. R. Co. v. Veazie 70 
 
 Opelousas R. R. Co. v. Lagarde 206, 212 
 
 Orange Co. Bank v. Brown 423, 495, 497 
 
 Osborne v. Humphrey 35 
 
 Oswego Falls Bridge v. Fish 22 
 
 Overmyer v. Williams '. : 13 
 
 Oxford Turnpike Co. v. Bunnell 129 
 
 C 
 
XXXIV TABLE OF CASES. 
 
 P. 
 
 Page 
 
 Pacific E. R. Co. v. Hughes 92, 97 
 
 v. Renshaw 37, 38,79, 97 
 
 Pack v. Mayor, &c. New York 236, 239 
 
 Packard v. Getman 426 
 
 Packer v. Sunbury and Erie R. R. Co 10, 155 
 
 Paine v. "Wright and Indianapolia and Bellefontaine R. R. Co 55 
 
 Palo Alto 367 
 
 Panton v. Holland , 311 
 
 Pardee v. Drew t.. 496 
 
 Park v. Mayor, &c, New York 256 
 
 Parker v. Adams 269, 278 
 
 v. Boston and Maine R. R 169, 223 
 
 v. Great Western R. Co 12,415 
 
 v. Redfield 35 
 
 v. Rensselaer and Saratoga R. R. Co 356 
 
 Parks v. Brown 204, 205 
 
 Parmelee v. Oswego and Syracuse R. R. Co 139, 141, 149 
 
 Parr v. Roe 513 
 
 Parrottj). C. H and D. R. R. Co 232 
 
 Parsons v. Hardy 411, 459 
 
 v. Monteath 421, 422, 468 
 
 Parthe «. Commonwealth 120 
 
 Paterson v. Wallace 263, 293 297 
 
 Panling v. London and N. W. R. Co 370 
 
 Peachey v. Rowland 238 
 
 Peavey v. Calais R. R. Co 13, 215, 219 
 
 Peck v. Neil 47 1 494 
 
 Penobscot and Kennebec R. R. Co. v. Dunn 70 74 103 
 
 Pennsylvania v. Belmont Bridge Co 175 
 
 v. Wheeling Bridge Co 178 
 
 Penn. R. R. Co. v. Aspell 475 475 
 
 v. Heister 206j 2 07 
 
 "• M'Closkey 2 59, 261, 476, 483 
 
 Penn. and Ohio Canal Co. v. Webb . . .78 90 
 
 Penn., &c, Steam Nav. Co. v. Dandridge ..395 
 
 People 11. Hillsdale and Chatham Turnpike Co 231 
 
 v. Mayor, &c, Brooklyn.. m, H2, 114, 173 
 
 v. Mississippi and Atlantic R. R. Co 508 
 
 v. Saratoga and Rensselaer R. R. Co l^g ggg 
 
 v. Supervisors of Niagara gg 
 
 v. White .,„ 
 
 513 
 
 ex reL Green v. Michigan Southern R. R. Co 162 164 166 
 
TABLE OF CASES. XXXV 
 
 Page 
 
 Peoria and Oquawka R. R. v. Elling 100, 106 
 
 Perkinss v. Eastern R. R. Co 321, 328, 339, 355 
 
 Permanent Bridge v. Frailey 63 
 
 Perren v. Monmouthshire R. Co 493 
 
 Perrine v. Chesapeake and Delaware Canal Co 9, 12 
 
 Perry v. Marsh 297, 298 
 
 v. "Wilson 231 
 
 Peters v. Ryland 243, 486 
 
 v. St. LoniB and Iron Mt. R. R. Co 37 
 
 Phil., Ger., and Nor. R. R. Co. „. Johnson 205 
 
 v. Wilts 235, 505 
 
 Phil, and Havre de Grace Steam Tow Boat Co. v. P., W., and B. R. R. 
 
 Co 236, 239 
 
 Phil, and Reading R. R. Co. v. Derby 233, 245, 481, 488 
 
 v. Gibeon 172,205, 211 
 
 v. Yeiser. .168, 174, 221, 222, 225, 313, 316, 357 
 
 Phil. andWil. R. R. Co. v. Maryland 12, 36, 504 
 
 PhiL, Wil., and Baltimore R. R. Co. v. Bayless 64 
 
 v. Gesner 205, 206 
 
 v. Howard. .• 381, 388, 504 
 
 PhillipB v. Bloomington 518 
 
 v. Earle ..413, 423, 425 
 
 Picbford v. Grand Juno. R. Co 415, 425, 461, 464 
 
 Pierce v. Emery 511, 531 
 
 Piggott v. Eastern Counties R. Co 317 
 
 Piscataqua Bridge v. N. H. Bridge 35, 156, 158 
 
 Pittsburg v. Scott 162 
 
 Pittsfield and North Adams R. R. Corp. v. Foster 506 
 
 Plank Road Co. v. Halsted 35 
 
 Plant ii. Long Island R. R. Co 179, 181,182 
 
 Piatt v. Hibbard 428 
 
 Police Jury v. Succession of M'Donough 110, 116, 120, 123 
 
 Polly v. "Washington and Saratoga R. R. Co 163 
 
 Pontchartrain R. R. Co. «. Lafayette and Pont. R. R. Co 35 
 
 Porter v. Buckfield Branch R. R. Co 384 
 
 ■v. County Commissioners of Norfolk 506 
 
 v. Hildebrand 497 
 
 Portland, Saco, and Portsmouth R. R. Co. v. Graham 108 
 
 Pott v. Flather 128 
 
 Potter v. Sanders 367 
 
 Powell v. Myers 436, 468, 496, 498, 499 
 
 Presbyterian Society of Waterloo v. Auburn and Syracuse R. R. Co 179 
 
 Price v. Price 127 
 
 Priestley v. Foulds 10 
 
 v. Fowler 289,298 
 
XXXVI TABLE OF CASES. 
 
 Page 
 
 Priestley v. Manchester and Leeds R. Co 
 
 Proprietors of Locks and Canals v. Nashua and Lowell R. R. Corp. .169, 186, 
 
 212, 221, 229, 230, 232, 247 
 
 Providence Bank 'v. Billings 12 > 36 ' m 
 
 Providence and 'Worcester R. R. Co. v. "Wright 54 
 
 Pudor v. Boston and Maine R. R. Co 502 
 
 Quimby v.Vt. Central R. R. Co 160, 335, 347 
 
 E. 
 
 Radeliffe v. Mayor, &c, of Brooklyn 173, 174, 181, 222 
 
 Railroad Co. „. Berks County 53 
 
 v. Norton 277, 28S 
 
 v. Skinner 284 
 
 Railsback v. Liberty and Abington Turnpike Co 78 
 
 v. Milton and Rushville Turnpike Co 73 
 
 Raleigh and Gaston R. R. Co. v. Davis 149, 161, 162, 166 
 
 Ranger v. Great Western R. Co 379 
 
 Rathbone v. Tioga Nav. Co 60,359 
 
 Reading R. R. Co. v. Boyer 212 
 
 Reedie v. London and N. "W. R. Co 236,238,263 
 
 Regina v. Birmingham and Gloucester R. Co 506 
 
 d. Eastern Counties R. Co 506 
 
 ■a. Grand Junction R. Co 55 
 
 v. Great Northern R. Co - 232 
 
 v. London and N. W. R. Co 219 
 
 v. London and S. W. R. Co 55, 529 
 
 v. Manchester and Leeds R. Co 506 
 
 (/. Trustees of Birkenhead Dock 54 
 
 u. Wilson 232 
 
 Reitenbaugh v. Chester Valley R. R. Co 173, 214, 222 
 
 Relf v. Rapp 413 
 
 Reno v. Hogan 421, 422 
 
 Rex v. Eastern Cos. R. Co 529 
 
 ■u. London Dock Co 187 
 
 "■ Pease 11, 155 
 
 v. Severn and Wye R. Co 529 
 
 Rexford v. Knight „ 162, 1 80, 206 
 
TABLE OP OASES. XXXV11 
 
 Page 
 
 Reynolds v. Dunkirk and State Line R. R Co 142, 371 
 
 Rice v. Foster 120 
 
 Richards v. Fuqua j.'.488 
 
 u. London, Brighton, &a., R. Co 480, 448, 498 
 
 Richardson v. Vt. Central R. R. Co 1*73, 175, 181, 221, 273 
 
 Richmond R. R. Co. v. Louisa R. R. Co 12,26, 28, 162, 157 
 
 Ricketts v. E. and W. India Docks and June. R. Co 321, 328, 339 
 
 Rigby v. Hewitt 277 
 
 River Nav. Co. v. Neal, 101 
 
 Roberts v. Williams 164 
 
 Robertson v. TS. T. and Erie R. R. Co 245, 284, 484 
 
 Robins v. Embrey 517 
 
 Robinson v. Austin 467 
 
 ■u. Baker 414, 460 
 
 v. Blake 500 
 
 v. Cone 275, 279, 281, 282 
 
 v. Dunmore 430 
 
 Rochester and Syracuse R. R. Co. o. Budlong 191, 199, 200, 204 
 
 Roe v. R. Co 234 
 
 Rogers v. Kennebec and Portland R. R. Co. 169, 174, 176, 184, 188, 222, 228 
 
 Rome R. R. Co. v. Sullivan 451,458, 467 
 
 Rood v. N. Y. and Erie R. R. Co 313, 315, 317, 357 
 
 Roseu. Truax 394 
 
 Ross v. Elizabethtown and Somerville R. R. Co 509 
 
 v. Lafayette and Indianapolis R. R. Co 108 
 
 v. Lafayette and Mississippi R. R. Co 77 
 
 Rossiter v. Chester 459 
 
 Rouclm. Great Western R. Co 379 
 
 Routledge v. Grant 367 
 
 Roxbury v. Boston and Worcester R. R. Corp 37, 44 
 
 Rubottom v. M'Clure 162 
 
 Rundle v. Delaware and Raritan Canal Co 175 
 
 Runyona. Central R. R. Co 269, 273, 275 
 
 Rushfarth „. Hadfield 460 
 
 Rust v. Low 321, 337, 339 
 
 Ryan v. Cumberland Valley R. R. Co 293, 304, 307 
 
 Ryder v. Alton and Sangamon R. R. Co 66, 70, 76, 77, 116 
 
 s. 
 
 Sabin v. Vt. Central R. R. Co. 168, 169, 174, 189, 223, 225, 229, 230, 235, 
 
 240 
 
 Sager v. Portsmouth L. P. and E. R. R. Co 410, 412, 418, 420, 422, 463 
 
 Sagory v. Dubois 77, 105 
 
XXXV1U TABLE OF CASES. 
 
 Page 
 
 St. John v. Van Santvoord 437,455 
 
 Salem Mill Dam Corp. •«. Ropes 67, 102 
 
 Salomons v. Laing 89 > s98 > 400 
 
 Sanford v. Catawiesa, *e. R. R. Co S9 
 
 . v. Housatonic R. R. Co 423 
 
 Sangamon and Morgan R. R. Co. v. County of Morgan 55 
 
 v. Henry 466 
 
 Sanquer v, London and Southwestern R. Co 458 
 
 Sargent v. Ohio and Mississippi R. R. Co 181, 183 
 
 Sater v. Burlington and Mt. Pleasant Plank Road Co 172, 197, 204, 212 
 
 Satterlee v. Matthewson 110 
 
 Sawyer v. Rutland and Burlington R. R. Co 245, 488 
 
 Scales v. Pickering 12 
 
 Schenectady and Saratoga Plank Road Co. v. Thatcher. . .69, 76, 77, 78, 97 
 
 Schopman v. Boston and Worcester R. R. Corp 245, 458, 474, 487, 488 
 
 Schuyler v. Northern R. R. Co. 165 
 
 Schuylkill Nav. Co. v. Berks County 54 
 
 Scotthorn v. South Staffordshire R. Co 458, 459 
 
 Sco Yille v. Griffith 411 
 
 Scudder v. Woodbridge 299 
 
 Seeley v. Peters 328 
 
 Selma and Tennessee R. R. Co. v. Tipton. 59, 65, 100, 101, 105 
 
 Selway v. Holloway. 426 
 
 Semple v. London, <fec. R. Co 236, 240 
 
 Seneca Road Co. v. Auburn and Rochester R. R. Co 171, 222 
 
 Sewall v. Allen 430 
 
 Seymour v. Burnett 531 
 
 v. Maddox 289 
 
 Sharpless?). Mayor of Philadelphia 109, 110, 112, 114, 115, 116 
 
 Sharrod ti. London and N. "W. R. Co 235, 335, 358, 505 
 
 Shattuck v. Wilton R. R. Co 205 
 
 Shaw v. Dennis Ill 
 
 v. Holland 128 
 
 v. Norfolk County R. R. Co 511, 531 
 
 .,. S. C. R. R. Co 466 
 
 Sheffield v. Rochester and Syracuse R. R. Co 274, 278, 284 
 
 Sheffield Canal Co. v. Sheffield and Rotherham R. Co 367 
 
 Shelbyville Lateral Branch R. R. Co. v. Lewark 255, 270 
 
 Sherman v. N. T. Central R. R. Co 375 
 
 v. Rochester and Syracuse R. R. Co 263, 292, 293, 307, 809 
 
 v. Rutland and Burlington R. R. Co 3*717 
 
 Shields «. Yonge 290 
 
 Shitz v. Berks _ Uj 
 
 Shorter v. Smith 22 
 
 Shrewsbury, &o. R. Co. v. London and N. W. R. Co 390 400 401 
 
TABLE OF CASES. XXXIX 
 
 Page 
 
 Shrewsbury, &c. R. Co. v. Stour Valley E. Co 146, 401 
 
 Shrunk v. Schuylkill Nav. Co 175 
 
 Simpson v. JJenison 401 
 
 Skinner v. Houaatonic R. R. Co 260 
 
 v. London, Brighton, and South Coast R. Co 488, 493 
 
 Skip v. Eastern Counties R. Co 290, 295, 298 
 
 Slack v. Maysville and Lexington R. R. Co 109, 115, 119, 120, 123, 126 
 
 Slim v. Great Northern R. Co 426, 463 
 
 Slocum v. Fairohild 417, 422, 451 
 
 Small v. Herkimer Manuf. and Hydraulic Co 107 
 
 Smith v. Helmer 162 
 
 v. M'Adam 162, 166 
 
 v. Nashua and Lowell R. R 860, 370, 374, 396, 449, 499 
 
 Smyth v. Wright 459 
 
 Snow v. Eastern R. R. Co 501 
 
 Somerville and Easton R. R. Co. *. Doughty 194, 200, 204, 214, 313 
 
 Somerville and Nashville R. R. Co. v. County Court of Davidson 507 
 
 Soper v. Buffalo and Rochester R. R. Co 361, 375 
 
 South Carolina R. R. Co. v. Blake 150 
 
 South Meadow Dam Co. v. Gray 37 
 
 South Yorkshire R. Co. v. Great N. R. Co 398, 401 
 
 Southern Plank Road Co. v. Hixon 76 
 
 South wiek v. Estes 233 
 
 Spade v. Hudson River R. R. Co 428 
 
 Sparr v. Wellman 501 
 
 Sparrow v. Evansville and Crawfordsville R. R. Co 79, 98 
 
 Spencer v. Utica- and Schenectady R. R. Co 273 
 
 Spring v. RusselL 222 
 
 Springfield v. Conn. River R. R. Co 11, 155, 216 
 
 Stacey v. Vt. Central R. R. Co 166 
 
 State v. Baltimore and Ohio R. R. Co 9 
 
 v. Berry 35, 48 
 
 v. Boston, Concord and Montreal R. R. Corp 508, 516 
 
 v. Branin 48 
 
 „. Gilmore. 260 
 
 v. Graham 507 
 
 v. Great Works Milling Manufac. Co 232 
 
 v. Mansfield 13, 48 
 
 v. Mexican Gulf R. Co 531 
 
 „. Morris 233 
 
 v. Morris and Essex R. R. Co 232 
 
 v. N. E. R. R. Co 507 
 
 v. Newark 13, 48 
 
 v. Norwalk and Danbury Turnpike Co 218 
 
 v. Overton 253, 254, 491, 492 
 
 v . Eives 160,517, 520, 528 
 
xl TABLE OF OASES. 
 
 Page 
 
 State v. Tupper 2iS 
 
 v. Vt. Central R. R. Co 11,232 
 
 v. Wilmington and Manchester R. R. Co 11 
 
 Steamboat New World *. King 436, 478, 483, 493 
 
 Steamer Crystal Palace v. Vanderpool 429, 498 
 
 Stebbins v. Phoenix Fire Ins. Co 129 
 
 Steel v. South Eastern R. Co 237 
 
 Steubenville and Indiana R. R. Co. v. Trustees of North Township 115 
 
 Stevens v. Armstrong 23 * 
 
 v. Boston and Maine R. R 443, 465 
 
 v. Jeacocke 226 
 
 v. Middlesex Canal 225, 231 
 
 v. Rutland and Burlington R. R. Co 78, 86, 609 
 
 Stewart v. R. R. Co 164 
 
 Stiles v Western R. R 375 
 
 Stockton v. Frey 493 
 
 Stoddard v. Long Island R. R. Co 464 
 
 Stokes v. Lebanon and Sparta Turnpike Co 100 
 
 v. Saltonstall 470, 471, 475, 493 
 
 Stone v. Cheshire R. R. Corp 236, 237, 240 
 
 v. Codman 237 
 
 Stoneham Branch R. R. Co. o. Gould 67 
 
 Story v. Norwich and Worcester R. R. Co 610 
 
 Stourbridge Canal Co. v. Wheeley 10 
 
 Stowell v. Flagg 226 
 
 Straiton v. N. Y. and N. H. R. R. Co ., 452,465 
 
 Strasburg R. R. Co. v. Echternach 59 
 
 Strickland v. Mississippi R. R. Co 115 
 
 Stuart v. Hawley 311, 314 
 
 v. London and N. W. R. Co 146, 370 
 
 Studwell v. Rich 328 
 
 Stuyvesant v. Pearsall 181, 182 
 
 Sunbolf v. Alford 460 
 
 Sunbury and Erie R. R. Co. „. Hummell 173, 194, 312,313 
 
 Susquehanna Canal Co. <i. Bonham 615, 630 
 
 Suydam v. Moore 41, 149, 214 
 
 Swan?). Williams 149, 214 
 
 Swindler v. Hilliard 421, 422, 468 
 
 Symonds v. Cincinnati 162, 206 
 
 T. 
 
 Talbot v. Dent 108, 114, 115, 120, 123 
 
 Talmadge v. Rensselaer and Saratoga R. R. Co 324 337 
 
 Tarrant v. Webb 296 
 
TABLE OE CASES. jxli 
 
 Pago 
 
 Tate v. Ohio and Mississippi R. E. Co 181, 182 
 
 Taunton and South Boston Turnpike Corp. v. Whiting 100, 102 
 
 Tayloe v. Merchants' Fire Ins. Co 367 
 
 Taylor v. County Commissioners of Plymouth 506 
 
 Tempest v. Kilner 127, 128 
 
 Terry v. N. Y. Central R. R. Co 322, 324, 336, 357 
 
 Tewksbury v. Bueklin 321 
 
 Thacher v. Dartmouth Bridge 162, 170 
 
 Thames Steam Boat Co. n. Housatonie R. R. Co 233, 235, 505 
 
 Thayer v. Arnold 321 
 
 v. Vt. Central R. R. Co 885, 386 
 
 Thomas v. Boston and Providence R. R. Co 407, 408, 410, 418, 430, 431, 
 
 435, 439 
 
 ■v. Leland Ill 
 
 Thompson v. Grand Gulf R. R. and Banking Co 164 
 
 Thurston v. Hancock 311 
 
 Tide Water Canal Co. •„. Archer 204 
 
 Tillotsont;. Hudson River R. R. Co 175 
 
 Tippetts v. Walker 530 
 
 Troy and Boston R. R. v. Lee 172, 191, 199, 204, 206 
 
 ■o. Tibbetts 58, 63, 100,105 
 
 Thompson v. Kelly 125 
 
 v. N. O. and Carrollton R. R. Co 244 
 
 v.N. Y. and Harlem R. R. Co 25 
 
 i,. Page 69, 869 
 
 Thorpe v. Rutland and Burlington R. R. Co 19, 35, 41, 45 
 
 Titnmons v. Central R. R. Co 298 
 
 Toledo Bank v. Bond v 35 
 
 Tombs v. Rochester and Syracuse R. R. Co 45, 345 
 
 Tonawanda R. R. Co. *. Munger 320, 324, 832, 841 
 
 Tower v. Providence and Worcester R. R. Co 322, 323, 827, 838, 429 
 
 v. UticaR. R. Co 49S 
 
 Towns v. Cheshire R. R. Co 341, 855 
 
 Trow v. Vt. Central R. R. Co 275, 276, 284, 323, 327, 341, 347, 348 
 
 Trowbridge v. Chapin 426 
 
 Troy and Boston R. R. Co. v. Northern Turnpike Co 191, 199, 200, 201 
 
 v. Warren 58, 63 
 
 Troy and Greenfield R. R. Co. v. Newton 71, 108 
 
 Troy and Rutland R. R. Co. „. Kerr 65, 76, 79, 99, 100, 402, 511 
 
 Troy Turnpike and R. R. Co. v. M'Chesney 100, 101, 373 
 
 Tuckahoe Canal Co. v. Tuckahoe R. R. Co 22, 162 
 
 Turner v. Sheffield, <fee., R. Co 228 
 
 Turnpike Co. v. Hosmer 218 
 
 Turnpike Road v. Brosi 218 
 
 d 
 
x lii TABLE OF CASES. 
 
 u. 
 
 Page 
 
 Underbill v. TS. Y. and Harlem R. R. Co 45, 336, 339 
 
 v. Saratogas. B. Co 139 > 14 ° 
 
 Union Looks and Canals v. Towne 81 
 
 Union Turnpike Co. v. Jenkins 64 > 101 
 
 United States v. New Bedford Bridge 1<78 
 
 v. Railroad Bridge Co 161, 118 
 
 v. Robeson 382 
 
 Unthank v. Henry County Turnpike Co 77 
 
 Upton v. South Reading R. R. Co 202, 210 
 
 Utica and Schenectady R. R. Co. v. Brinckerhoff 11, 363, '369 
 
 V. 
 
 Vail v. Morris and Essex R. R. Co 211 
 
 Vandegrift «. Rediker 322, 323, 327, 339 
 
 Vandekar v. Rensselaer and Saratoga R. R. Co 356 
 
 Vanderbilt v. Adams 40 
 
 v. Richmond Turnpike 234 
 
 Vanderwerker v. Vt. Central R. R. Co 382, 385, 386 
 
 Van Santvoord v. St. John .' 437, 455 
 
 Vanwickle v. Camden and Amboy R. R. Co 206, 214 
 
 Varick v. Smith 148, 149 
 
 Varillat v. Carrollton R. R. Co 494, 495 
 
 Vassar v. Camp 367 
 
 Vere v. Lord Cawdor 323 
 
 Vermont Central R. R. Co. v. Baxter 168, 169, 190, 205, 228, 236, 240 
 
 v. Burlington 49 
 
 v. Clayes 62, 66, 101 
 
 v. Hills 139 
 
 v. Sabin 505 
 
 Visscher v. Hudson River R. R. Co 214 
 
 w. 
 
 Waite v. Gilbert ^ 
 
 Waland v. Elkins 4gj 
 
 Waldron v. Portland, Saco and Portsmouth R. R. Co 336 341 353 
 
 v. Rensselaer and Saratoga R. R. Co 41 335 3317 357 
 
TABLE OF CASES. xlili 
 
 Page 
 
 Walker v. Boiling 289, 295, 299, 308 
 
 v. Devereux 77, 126 
 
 ■k. Mad River and Lake Erie E. R. Co 609 
 
 v. York and Midland R. Co 421, 463 
 
 Ware v. Gay 493 
 
 v. Grand June. Water Works Co 89, 509 
 
 Washington Bridge v. State 19 
 
 Washington and Baltimore Turnpike Road Co. ■«., Baltimore and Ohio 
 
 R. R. Co 22 
 
 Waterford, <fee., R. Co. v. Dalbiac 69 
 
 Watson v. Amhergate, <fec, R. Co 458 
 
 Wayne County n. Delaware and Hudson Canal Co 54 
 
 Webb v. Direct London, &o. R Co 145 
 
 it. Manchester and Leeds R. Co 12 
 
 Webber v. Eastern R. R. Co 201, 203, 313 
 
 Weed v. Saratoga and Schenectady R. R. Co 395, 455, 497,499 
 
 Welland Canal v. Hathaway 395 
 
 Wellington v. Petitioners 110 
 
 Wells v. Howell, 321 
 
 West Chester R. R. Co. „. Hickman 65 
 
 West River Bridge Co. v. Dix.. . .10, 12, 13, 22, 14-7, 148, 149, 150, 152, 155 
 
 Western It. R. Corp. v. Babcock 141, 144, 360, 363, 368, 369 
 
 Wetmore e. Story 179, 181, 183 
 
 Weyant />. N". Y. and Harlem R. R. Co 242 
 
 Wheedon «. Camden and Amboy R. R. Co 504 
 
 Wheeler it. Rochester and Syracuse R. R. Co 165 
 
 Whitcomb v. Vt. Central R. R. Co 169, 221, 230 
 
 White v. Charlotte and S. C. R. R. Co 196, 204 
 
 v. Concord R. R 201, 327, 334, 344, 357 
 
 v. Fitchburg R. R. Corp 201 
 
 ... South Shore R. R. Co 186 
 
 v. Syracuse and Utica 11. R. Co 38, 96 
 
 v. Winnisimmet Co 488 
 
 White Mts. R. It. Co. v. Eastman 74, 75 
 
 White River Turnpike Co. v. Vt. Central R. R. Co. 11, 22, 151, 154, 155, 
 
 167, 216 
 
 Whitemanii. R. R. Co 224, 235 
 
 Whitemarsh v. Phil. Ger. and Norristown R. R. Co 506 
 
 Whitesell v. Crane 501 
 
 Whitesides v. Russell 468 
 
 Whitney v. Lee 477 
 
 Whittier v. Kennebec and Portland R. R. Co 174, 181, 184, 222 
 
 Wibert v. N. Y. and Erie R. R. Co 412, 414, 455, 456 
 
 Wights Shelby R. R. Co 59, 65, 73, 76 
 
 Wigmore o. Jay 263, 289, 293, 298 
 
 Wilcox v. Parmelee 451 
 
Xliv TABLE OF CASES. 
 
 Page 
 Willette v. Buffalo and Rochester R. R. Co. 253, 262, 277, 219, 282, 284, 
 
 492 
 
 Williams v. Cammack HI. H2 
 
 v. Detroit Ill, 112 
 
 v. Hartford and N. H. R. R. Co 214 
 
 v. Michigan Central R. R. Co 320, 322, 327, 332, 341 
 
 v. New Albany and Salem R. R. Co 322, 323, 328, 335, 341 
 
 v. N. Y. Central R. R. Co 178, 179, 181, 346 
 
 v. Taylor. 289, 298 
 
 Willing v. Baltimore R. R. Co 206 
 
 Willink u. Morris Canal and Banking Co 531, 535 
 
 Willoughby *. Horridge 488 
 
 Wilson ii. Baptist Education Society 369 
 
 v. Brett 477 
 
 v. Rochester and Syracuse R. R. Co 278 
 
 v. York and Erie R. R. Co 466 
 
 Wilsons v. Hamilton 463, 488 
 
 Winch v. Birkenhead, <fcc. Junction R. Co 89, 390, 398, 400 
 
 Windham Manuf. Co. v. H P. and F. R. R. Co 144 
 
 Winchester and Lexington Turnpike Road Co. v. Vimont 530 
 
 Winchester and Potomac R. R. Co. u. Washington 168, 169 
 
 Winter n. Muscogee R. R. Co 78, 79, 83 
 
 Winslow v. Smith 163 
 
 Wiswall v. Brinson 236 
 
 Wolf v. Somers 460, 500 
 
 Wolfe v. Covington and Lexington R. R. Co 181 
 
 Wood v. M'Cann 394 
 
 Woolson v. Northern R. R v 321, 339, 341 
 
 Woods v. Devin 430, 496, 497 
 
 v. Nashua Manuf. Co , 225 
 
 Worcester v. Western R. R. Corp 14, 51 
 
 Worcester and Nashua R. R. Co. o. Hinds 67 
 
 Worcester Turnpike v. Willard 100, 101, 102 
 
 Works v. Junction R. R. Co 178, 218, 504 
 
 Worley v. Cincinnati, Hamilton, and Dayton R. R. Co. . .255, 256, 259, 262 
 
 Wright v. Brown 323 
 
 v. Caldwell 426 
 
 Wylde v. Pickford 477 
 
 Wyman v. Lexington and West Cambridge R. R. Co 200, 201, 202, 506 
 
TABLE OF CASES. xlv 
 
 Y. 
 
 Page 
 
 Yeiser v. Phil, and Reading R. R. Co 168, 174, 194 
 
 York and Maryland R. R Co. v. "Winans 244, 248, 357, 408 
 
 York, Newcastle, and Berwick R. R. Co. •<,. Crisp 421, 463 
 
 York and North Midland R. Co. v. Regina 397, 506 
 
 Young v. Small 436 
 
 „. Smith 499 
 
 z. 
 
 Zemp v. W. and M. R. R. Co 476, 498, 496 
 
AMERICAN RAILROAD LAW. 
 
 CHAPTER I. 
 
 THE FORMATION OF A RAILROAD COMPANY. 
 
 Definitions. — A corporation is an artificial being, 
 created by law, and composed of individuals sub- 
 sisting as a body politic under a special denomi- 
 nation, with, capacity to succeed each other in 
 perpetual succession, and to act in many respects 
 as a natural person. The privilege of being a 
 corporation is conferred on individuals by grant 
 from the sovereign power, and is a franchise. A 
 private corporation is one founded by private in- 
 dividuals, the stock of which is owned, at least, in 
 part, by private persons ; and is distinguished from 
 a public corporation, which is created by the 
 government for political purposes, or whose stock 
 is owned exclusively by the government. 1 The 
 charter of a private corporation is a contract, 
 protected by the clause of the U. S. Constitution 
 which forbids any State to pass a law impairing the 
 
 1 Dartmouth College v. Woodward, 4 Wheaton, 543, 565, 662 ; 2 Kent, 
 Com. 268, 275; 3 id. 458. 
 
 2 
 
2 THE FORMATION OE A BAILKOAD COMPANY. 
 
 obligation of contracts. 1 Railroad companies are 
 private corporations, usually created by special 
 acts of legislation, called charters or acts of incor- 
 poration, although in some States they may be or- 
 ganized under general laws. 
 
 They are created for the making and maintaining 
 of railroads, to be used for the purposes of trans- 
 portation, and besides being invested with the 
 usual privileges and incidents of corporations, 
 are clothed with certain peculiar and extraordinary 
 powers necessary for carrying out the objects for 
 which they were established. 2 The law of railroads 
 
 1 2 Kent, Com. 272, 2'75. 
 
 " An English writer has thus described a railroad company : " A rail- 
 way company may be defined to be, a collection of many individuals, united 
 into a body corporate for the making and maintaining a railway with all 
 necessary works, <fec; and, for the better prosecution of this design, endowed 
 by the policy of the law, not merely with a modified capacity of acting 
 in several respects as an individual, particularly of taking and granting 
 property, of contracting obligations, of suing and being sued, of enjoying 
 privileges and immunities, according to the scope of its institution, or the 
 powers conferred upon it, either at the time of its creation or at any 
 subsequent period of its existence (see Kyd Int. 13), but likewise with 
 extraordinary powers more peculiarly characteristic of such an undertaking, 
 viz. ; powers of taking and dealing with land, houses, <&c; of internal self- 
 government, and of raising, by the mutual subscription of its individual 
 members, a certain amount of capital, divided into a given number of trans- 
 ferable shares. As a corporate body, a railway company enjoys all the or- 
 dinary incidents of such a body (subject, of course, to such express provisions 
 on the subject as are contained in their act of incorporation, and to the limi- 
 tations thereby engrafted on the general law of corporations), viz. — 1st, to 
 have perpetual succession; 2d, to sue or be sued, grant or receive, <Ssc, by 
 its corporate name ; 3d, to purchase lands, and hold them for the benefit of 
 itself and its successors ; 4th, to have a common seal, for a corporation being 
 an invisible body, cannot manifest its intentions by any personal action or 
 discourse, it therefore acts and speaks only by its common seal; 5th, to make 
 by-laws or private statutes for the better government of the corporation, 
 which are binding on itself— unless contrary to the laws of the land, and 
 then they are void." — Walford on Railways, pp. 68, 69. 
 
THE FORMATION OF A RAILROAD COMPANY. 3 
 
 as operated by corporations, is the subject of this 
 volume. A private individual might indeed con- 
 struct one without legislative interposition, provi- 
 ded he could succeed in obtaining a right of way 
 by purchase ; and there would be no objection to 
 his using the same for the purposes of a common 
 carrier, unless there be an objection on the ground, 
 that the right to take tolls is a franchise to be 
 derived from some public grant ; which, however, is 
 mainly technical. Such railroads, which may be 
 called railroads at common law, exist in En- 
 gland, either constructed on the owner's land or 
 on the land of another by purchase of a right of 
 way, or by the reservation of a way-leave over 
 lands sold or demised. 1 In this country, railroads 
 which are used for the purpose of transporting 
 for the public generally, are uniformly constructed 
 and operated by the state itself, or, as is usually 
 the case, by companies under the authority of 
 statutes. In some recent instances, although built 
 by such companies, they have been leased or sold 
 to private persons; but such transfers have not 
 yet been the subjects of judicial decisions in the 
 tribunals of last resort. 
 
 General frame of the Charter. — The ordi- 
 nary mode of forming a corporation for the con- 
 struction of a railroad, is by the application of 
 interested parties to the legislature for the privi- 
 
 1 Dand v. KiDgBcote, 6 M. <fc W. 174; 2 Eng. Eail. Cas. 27 ; Harrow v. 
 Vanaittart, 1 Eng. Rail. Cas. 602 ; Barnard v. Wallis, 2 id. 162. Walford on 
 Railways, pp. 2-10. 
 
4 THE FORMATION OF A EAILEOAD COMPANY. 
 
 lege. The legislature, in granting the same by a 
 charter, confers on individuals the power to form 
 the corporation ; and the exercise of this power in 
 pursuance of the grant, brings the corporation into 
 existence. The charter, except so far as altered 
 by constitutional legislation, is the ' law of the 
 corporation, denning its powers and obligations, 
 the mode of its internal organization and its rela- 
 tions to the public. It may vary, in many par- 
 ticulars, from others granted for a similar purpose, 
 according to special exigencies, while its essential 
 features are the same. Its leading provisions, some 
 of which are frequently omitted, may here be 
 noted. 
 
 The charter establishes a corporation, or authorizes 
 its formation, and declares the name under which 
 it is to be recognized in law. It designates the 
 corporators by name or as a class. In some cases, it 
 constitutes as corporators certain enumerated in- 
 dividuals with their associates and successors, and 
 in others, those who shall hereafter become sub- 
 scribers or stockholders. It invests the corporation 
 with capacity, under its corporate name to sue 
 and be sued in courts of justice, to use a common 
 seal, and the same to alter and renew at pleasure, 
 to purchase and hold real estate, to enter into 
 contracts, and with such other powers and privi- 
 leges as are necessary to carry into effect the pur- 
 poses of its creation. It authorizes the construction 
 of a railroad for the transportation thereon of per- 
 sons and property by the usual means of convey- 
 ance on railroads, designates its termini and prom- 
 
THE FORMATION OP A RAILROAD COMPANY. 5 
 
 inent intermediate points, limits the time for its 
 completion, and grants to the company the power 
 to fix and take tolls for the use of the same. It 
 determines the amount of the capital stock, and 
 the mode of obtaining it, the number of shares 
 and the nominal value of each. It authorizes the 
 corporators named to associate others with them, 
 and with such associates to organize the corpora- 
 tion. In some cases, it requires the corporators 
 thus named, or certain commissioners named, to 
 open books for subscription to the capital stock, 
 at certain places upon a prescribed notice being 
 given ; and, when a 'fixed amount has been sub- 
 scribed and, as is sometimes provided, a certain 
 percentage on each share taken paid in, to give 
 notice of a meeting of the subscribers for the 
 organization of the corporation by the choice of 
 directors ; and also to conduct the election of such 
 officers. Upon their acceptance of the trust, one 
 of whom is, according to the charter, usually to be 
 chosen the president by themselves, the affairs 
 of the company pass into their management, and 
 its organization is complete. 1 
 
 The charter provides for the holding of the cor- 
 porate meetings, the mode of conducting them, of 
 electing the officers and filling vacancies, the num- 
 ber necessary for a quorum in the meetings of 
 
 1 An election of officers may be set aside for the improper rejection of 
 votes which would have defeated the successful ticket, but not for mere 
 irregularities of proceeding. As to proceedings in the election of officers, see 
 In the Matter of Long Island R. R Co., 19 Wend. 37 ; In the Matter of 
 Mohawk & Hudson River R. R. Co., 19 id. 135. 
 
6 THE FORMATION OF A RAILROAD COMPANY. 
 
 stockholders and of official boards, and the terms 
 of office. 
 
 It prescribes the proceedings for acquiring land 
 by condemnation, in case of the inability of the 
 company to purchase the same; authorizes pre- 
 liminary surveys, the taking of a certain width 
 for the line of the road, of materials for its con- 
 struction and maintenance, and of land for its 
 stations and necessary appendages ; and defines the 
 estate of the company in the land thus acquired. 
 It declares the mode and rules of assessing dama- 
 ges to the injured party, whether made by special 
 appraisers or a jury, the notice to be given of the 
 condemnation and assessment, the time and place 
 of payment, with provisions for the protection of 
 parties under disability. 
 
 It prescribes the mode of collecting the amounts 
 subscribed to the capital stock, the notice, if any, 
 to be given of the calls ; and may give to the com- 
 pany the right to declare a forfeiture of the stock 
 for non-payment of the calls ; and points out its 
 duties and powers, in case the stock upon such 
 forfeiture sells for more or less than its par value. 
 It usually declares the shares to be personal 
 property. 
 
 It authorizes the directors to make the necessary 
 by-laws and regulations, and to appoint the ne- 
 cessary officers and agents for whose appointment 
 no other special mode is provided by the charter. 
 
 Other specific powers are sometimes added, as — 
 to change its location, borrow money, mortgage 
 the corporate property and franchise, run trains 
 
THE FOEMATION OP A EAILEOAD COMPANY. 7 
 
 over the railroads of other companies, and to unite 
 or consolidate its interests with theirs. Special 
 duties may be imposed for the convenience and 
 protection of the public, as — to restore water-cour- 
 ses, roads, and highways, crossed by it, to their 
 former usefulness, give signals at crossings of pub- 
 lic ways, erect cattle-guards and fences on the line 
 of the railroad, file its location within a specified 
 time with certain public ofiicers. A prohibition 
 is sometimes inserted against laying the track in 
 cities without the consent of the proper authorities. 
 The mode and rate of taxation of the corporate 
 property, and exemption from other modes and rates, 
 may be prescribed. A clause reserving the power 
 to the legislature to alter or repeal the charter, is 
 not unfrequently inserted. Special penalties may 
 also be provided for the protection of the company, 
 as double or treble damages against persons un- 
 lawfully placing obstructions on the track. 
 
 Many of the provisions here specified, may be 
 included in a general law applicable to all railroad 
 companies, and need not, therefore, be repeated in 
 each charter. Such a general law, if well consid- 
 ered, would reduce acts of incorporation, other- 
 wise unnecessarily burdened with provisions, to a 
 very brief space, so as to require little besides the 
 names of the corporators or commissioners, the 
 termini and points of the road, the amount of the 
 capital stock, and the time allowed for its con- 
 traction. A general law has been passed in some 
 states, under which a railroad company may be 
 
8 SHE FORMATION OF A RAH/ROAD COMPANY. 
 
 organized without applying to the legislature for a 
 special act, but it has been little availed of in the 
 construction of railroads. 1 
 
 1 Laws of Illinois (1849, 2d session), p. IS. 2 Stat, of Illinois (Purple's 
 ed.) p. 1060. Swan's Stat, of Ohio (] 834), p. 197. Rev. Stat, of New York 
 4th ed.) p. 1220. 
 
THE CONSTRUCTION AND EXTENT OF POWERS. 
 
 CHAPTER II. 
 
 THE CONSTRUCTION AND EXTENT OF POWERS. 
 
 General Rule op Construction. — A corporation 
 is the creature of law, and this circumstance deter- 
 mines the principle which governs the construction 
 of its powers. Deriving its existence and capacities 
 from the express grant of the law-maker, it can 
 assert no other than those conferred ; and such as 
 were not given, it must be presumed he intended to 
 withhold. The strict construction of legislative 
 grants to a corporation, has, therefore, become a 
 settled doctrine of American law, which is applied 
 with more stringency where private rights are to be 
 interfered with, or important functions of govern- 
 ment are to be abridged by them. It must, how- 
 ever, be understood in a reasonable sense, as not 
 requiring the power invariably to be conferred in 
 express words, but admitting its existence when 
 necessarily implied from any express grant. Cor- 
 porations have, therefore, such powers as are speci- 
 fically granted, and such as are necessary for the 
 purpose of carrying into effect the powers expressly 
 granted ; and no other. 1 
 
 1 2 Kent, Com. 298 ; Perrine v. Chesapeake <fe Delaware Canal Co. 
 9 How. 172; Commonwealth v. Erie and North East K. R. Co., 27 Perm. 
 State, 339 ; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294 ; State v. Bal- 
 timore <Sc Ohio R. R. Co., 6 Gill, 363. 
 
10 THE CONSTRUCTION AND 
 
 The same rule of construction is enforced in 
 England, where a railway act is regarded as a bar- 
 gain between a company of adventurers and the 
 public, the terms of which are expressed in the 
 statute ; and any ambiguity in the terms of the con- 
 tract must operate against the adventurers and in 
 favor of the public; and the company can claim 
 nothing which is not clearly given to it by the 
 act. 1 
 
 The restrictions on the powers expressed in the 
 charter are to be enforced against the company, 
 although the effect is to render the powers worth- 
 less ; and if the powers cannot be executed without 
 disregarding the restrictions coupled with them, 
 they cannot be executed at all. 2 The rule of strict 
 construction applies only in cases of ambiguity, or 
 where a power is claimed by implication. There is 
 no room for its operation where the power claimed 
 is expressly given. 8 
 
 Specific Application of the Rule. — The grant 
 to a railroad company is to be construed strictly 
 where it interferes with a previous grant to another 
 company, 4 or some earlier appropriation to another 
 public use, as for a highway or canal. 5 But this 
 
 1 Stourbridge Canal Co. #. Wheeley, 2 B. & Ad. 792 ; Priestly v. Foulds, 
 2 M. & G. 115; 2 Eng. Kail Cas. 441. 
 
 1 Commonwealth v. Erie & North East R. R. Co., 27 Penru State, 3S9. 
 
 * Newhall v. Galena & Chicago Union R. R. Co., 14 HI. 2*73 ; Cleveland, 
 Painesville, & Ashtabula R. R. Co. v. City of Erie, 27 Penn. State, 380. 
 
 4 Packer v. Sunbury & Erie R. R. Co., 19 Penn. State, 211. 
 
 6 West River Bridge Co. v. Dix, 6 How. 643 ; Chesapeake <fe Ohio Canal 
 
EXTENT OF POWEES. 11 
 
 principle is not to be applied so as to defeat the sub- 
 sequent grant, where both uses can stand together. 1 
 And the power to interfere, and even to destroy the 
 value of the previous grant, may result from express 
 words, or necessary implication either from the 
 language of the charter or from its being shown, by 
 the application of the same to the subject matter, 
 that the railroad cannot by reasonable intendment 
 be laid in any other manner and on any other line. 2 
 The grant of a right of way fifty feet wide for a 
 railroad through a small strip of land in a densely 
 populated city will convey only so much ground as 
 is necessary for the line of the road, and will not 
 carry by implication the right to erect within such 
 line depots, car-houses, or other structures for the 
 convenience and business of the road. 8 The free 
 navigation of navigable waters is another public 
 right important to be preserved ; and the power to 
 obstruct it must be clearly given. 4 The company 
 cannot be the owner of a ferry, unless a power for 
 that purpose is expressly or impliedly given. 5 It 
 cannot, without express grant for that purpose, pass 
 
 Co. v. Baltimore & Ohio R. R. Co., 4 Gill <St Johns. 1 ; State v. Vt. Central 
 R. R. Co., 1 Williams (Vt.), 103 ; Commonwealth v. Nashua & Lowell R. R. 
 Corp., 2 Gray, 54; Clarence R. Co. v. Great North of England, <fcc. R. Co., 
 4 Q. B. 46. 
 
 1 Boston Water Power Co. v. Boston <fc Worcester R. R. Co., 23 Pick. 360. 
 
 * Springfield v. Connecticut River R. R. Co., 4 Cush. 63 ; White River 
 Turnpike Co. v. Vt. Central R. R. Co., 21 Vt. 590 ; Enfield Toll-bridge Co. 
 v. H. <fe N. H. R. R. Co., 17 Conn. 40, 454 ; Rex v. Pease, 4 B. <fe Ad. 30. 
 
 3 Mayor, <fec, Allegheny v. Ohio & Penn. R. R. Co., 26 Penn. State, 355. 
 
 4 Atty Gen. v. Hudson River R. R. Co., 1 Stockton Ch. 526 ; Newark 
 Plank Road Co. „. Elmer, 1 id. 754. 
 
 * State ». Wilmington & Manchester R. R. Co., Busbee (N. C), 234. 
 
12 THE CONSTRUCTION AND 
 
 a by-law subjecting to forfeiture the shares of stock- 
 holders for non-payment of installments due thereon. 1 
 It must pursue strictly the authority conferred by- 
 statute for taking private property for public uses. 2 
 The power to change its location, when given, is to 
 be strictly construed. 8 The power to take tolls must 
 be expressly given, and when so given, any limita- 
 tions upon it are to be construed favorably for the 
 public. 4 A grant the effect of which is to abridge 
 important functions of government, is to be con- 
 strued strictly. Thus, the power of taxation is 
 essential to the existence of government ; and a grant 
 to the company of exemption therefrom is not to be 
 presumed, and when given to a certain extent, is not 
 to be extended by construction. 5 The same prin- 
 ciple applies where the company asserts the grant of 
 exclusive privileges conflicting with public interest, 
 as of the sole power to operate a railroad within 
 certain limits. 6 The extent and limitation of a power 
 
 1 In Matter of Long Island R. R. Co., 19 Wend. 37. 
 
 3 Bonaparte ■„. Camden <fc Amboy R. R. Co., 1 Baldwin, 229, 230; 
 Browning v. Camden & Woodbury R. R. Co., 3 Green Ch. 55 ; Scales v. 
 Pickering, 4 Bing. 44; Webb v. Manchester & Leeds R. Co., 4 My. & Cr. 
 120; S. C, 1 Eng. Rail Cas. 599 ; Lee v. Milner, 2 Y. & Coll 618. 
 
 8 Moorehead v. Little Miami R. R. Co., 17 Ohio, 340 ; Little Miami R. R. 
 Co. v. Naylor, 2 Ohio State, 235. 
 
 4 Perrine v. Chesapeake & Delaware Canal Co., 9 How. 172 ; Camden 
 and Amboy R. R. Co. v. Briggs, 2 Zabris. 623 ; Gildart v. Gladstone, 11 East, 
 675; BarretU. Stockton and Darlington R. Co., 2 M. <fe Gr. 134; 3 id. 956; 
 2 Eng. Rail. Cas. 465 ; Parker v. Great Western R. Co. 9 Scott N. R. 870. 
 
 6 Providence Bank v. Billings, 4 Peters, 614, 561 ; Phil. & Wil. R. R. Co. 
 v. Maryland, 10 How. 376 ; Ohio Life Insurance and Trust Co. v. Debolt, 16 
 id. 435. 
 
 8 Charles River Bridge v. Warren Bridge, 11 Peters, 420 ; West River 
 Bridge v. Dix, 6 How. 532; Richmond R. R. Co. v. Louisa. R. R. Co., 13 
 id. 71. 
 
EXTENT OF POWERS. 13 
 
 granted are determined by the purpose for which, 
 it was conferred. Thus, the power to hold real 
 estate is confined to the proper and necessary uses of 
 the company, such as for the line of its road, the 
 procurement of materials for its construction and 
 maintenance, convenient station-grounds, and other 
 like purposes. 1 
 
 The implied powers are such as are necessary to 
 carry into effect the express powers. The power 
 to condemn land, although to be strictly construed, 
 is not to be construed with such strictness as to 
 defeat the purpose of the grant. 2 The grant of the 
 power to construct a railroad includes the power to 
 make such embankments and excavations as are 
 necessary for its construction. 8 The right to enter 
 on land, and appropriate as much thereof as is neces- 
 sary for a railroad, includes the right to remove 
 a dwelling-house for that purpose. 4 A charter, 
 authorizing the construction of a railroad " to the 
 place of shipping lumber " on a tide-water river, does 
 not limit the right of location to the upland or to 
 the shore, but authorizes the extension of the road 
 across the flats and over tide water to a convenient 
 place for reaching vessels. 5 The [power to establish 
 
 • s Overmyer«. Williams, 15 Ohio, 26; State v. Mansfield, 3 Zabris. 610; 
 State v. Newark, 1 Dutcher, 315; Mayor of Norwich v. Norfolk R. Co., 30 
 Eng. L. & Eq. 120; Eastern Counties R. Co. v. Hawkes, 35 id. 8. 
 
 2 Doughty v. Somerville and Easton R. R. Co., 1 Zabris. 442. In the ease 
 of Chicago, Burlington, and Quincy R. R. Co. v. Wilson, 1*7 111. 123, the power 
 was carried quite far enough. See West River Bridge Co. v. Dix, 6 How. 
 544, 545, 546. 
 
 ' Babcock v. Western R. R. Corp., 9 Met. 553 ; Jones v, Vt. Central 
 R. R. Co., 1 Williams, 399. 
 
 « Brocket v. Ohio and Penn. R. R. Co., 14 Penn. State, 241. 
 
 ' Peavey v. Calais R. R. Co., 30 Maine, 498. 
 
14 THE CONSTRUCTION AND 
 
 a railroad on a public street, may include that of 
 making a turnout thereon to communicate with a 
 depot on the street. 1 
 
 The company is clothed with a discretion, not 
 indeed arbitrary, but to be exercised bona fide, of 
 doing the works necessary to accomplish the main 
 purpose authorized by the act, in such a manner as 
 reasonable, careful, and skillful men would judge 
 expedient and fit. Thus, in England it has been held 
 authorized to build a temporary bridge over a stream 
 or canal, or to arch a public street, where such works 
 are reasonably convenient and necessary to accom- 
 plish the enterprise contemplated in the act, and are 
 not in conflict with any of its restrictions. 2 The 
 company is authorized to do all acts within the 
 limits of its road which are necessary and proper 
 for its construction and operation, although the fee 
 of the land may still remain in the owner. Thus, 
 it may erect such buildings within those limits as 
 are reasonably incident to its purposes. 8 So also, it 
 may cut trees growing thereon, whether used for 
 shade, ornament, or fruit, and whether they are cut 
 at the time of laying out the track or afterwards ; 
 and there is no burden of proof on the company to 
 show in its justification that the trees so growing 
 within its limits were cut for the purposes of the 
 
 1 N. 0. and Carroll ton R. R. Co. v. New Orleans, 1 La. An. 128 ; Knight 
 v. Carrollton R. R. Co. 9 id. 284. 
 
 3 Priestly v. Manchester and Leeds R. Co., 4 V. <fc Coll. 63 ; 2 Kng. Rail. 
 Cas. 134; London and Birmingham R. Co. v. Grand Junct. Canal Co., lEng. 
 Rail. Cas. 238 ; Atty. Gen. v. Eastern Counties, &c. R. Co., 10 M. <fe W. 263 • 
 S. C, 2 Eng. Rail. Cas. 823; Clarence R. Co. v. Great North of England &e. 
 R. Co., 13 M. & W. 706. 
 
 3 Worcester v. Western R. R. Corp., 4 Met. 564. 
 
EXTENT OF POWERS. 15 
 
 road ; and the corporation itself is the judge of the 
 exigency requiring the cutting. 1 The power of 
 the company to make contracts, to dispose of its 
 
 1 Brainard v. Clapp, 10 Cush., 6, — Shaw, C. J. : " It appears by the bill of 
 exceptions that the action was brought for cutting down walnut and cherry 
 trees growing on the close of the plaintiff, for use, ornament, shade, or fruit. 
 The cutting complained of was within the limits of the five rods laid out 
 over the plaintiff's land by the railroad company, and for which his dam- 
 ages had been assessed and paid. The defendant (who justified the trespass 
 as the president, agent, and servant of the Connecticut River Valley Rail- 
 road Company) claimed that the trees obstructed the view of the track, 
 near the depot, at the village of Greenfield, and it was necessary to the 
 safety of the road, and those using it and working on it, that this obstruc- 
 tion should be removed. The Court ruled that the defendant could justify 
 only on the ground that the acts complained of were necessary to carry out 
 the objects and purposes intended by their charter, and that the burden of 
 proof was on the defendant to prove such necessity. Without following 
 the bill of exceptions minutely, it may be sufficient to say that the Court 
 ruled that if the trees standing within the limits of the land taken for the 
 road were an obstruction, or made the track unsafe or inconvenient to the 
 company or their agents, the defendant, as agent of the company, had a 
 right to cause them to be cut down ; that in judging of the safety and con- ' 
 venience of the road, the acts of the company were entitled to a favorable 
 construction ; that the company had the exclusive right to the use of the 
 plaintiff's land taken, so far as it was necessary to carry into operation all 
 the objects embraced within the scope of their act of incorporation ; but the 
 officers of the company were not the sole and exclusive judges of what was 
 to be removed from the land taken, but the necessity of the removal might 
 be judged of by the jury ; and if there were clearly no necessity for such 
 removal, then the defendant would be responsible for cutting the trees in 
 question. To these directions the defendant excepted, and the caBe has now 
 been brought before this court for revision. 
 
 " In a general view of the law, the Court are of opinion that, prima 
 facie, the railroad company are authorized to do all acts within the five 
 rods which by law constitute their limits, in taking away or leaving gravel, 
 trees, stones, and other objects, which in their judgment may be necessary 
 and proper to the grading and leveling the road, in adjusting and adapting 
 it to other roads, bridges, buildings and the like, so as to render it most con- 
 ducive to the public uses which the railroad is designed to accomplish. 
 Whatever acts, therefore, are requisite to the safety of passengers on the 
 railroad, to the agents, servants, and persons employed by the company, 
 and to the safe passage of travelers on and across highways and roads con- 
 
16 THE CONSTRUCTION AND 
 
 franchise and road-track, as well as other powers, 
 will be considered in subsequent chapters. 
 
 nected with it, and which can be done within the limits of floods, *»» 
 company have a right, under their act of incorporation, to do. This is em 
 braced in the idea of ' taking ' land for public use. It is an appropriation of 
 the land to all the uses of the land for the road, necessary and incidental. 
 This appropriation the company are authorized to obtain by purchase, if it 
 can be done; but if the owner refuses, then the company, by their officers 
 and engineers, have the right and power to lay out the land, paying a com- 
 pensation to the owner therefor, to be adjusted and settled, first by commis- 
 sioners, and ultimately by a jury; and practically the damages are com- 
 monly equal to the value of the land. To this extent the power of the 
 public, under the right of eminent domain, to provide for carrying into 
 effect a proposed public enterprise for the common good, is transferred to 
 the company ; and their decision, therefore, must be definitive, except when 
 under special provisions of law, they are bound to conform to the directions 
 of the company's commissioners or other officers appointed for the purpose.'' 
 After citing cases to the point that where land is taken for the public 
 use and paid for, the public, or the corporation acting as agent and trustee 
 for the public, has a right to make all the use of the land which the neces- 
 sity and convenience of the public may require, and the landowner receives 
 in damages a compensation which in theory of law is an indemnity for all 
 such uses, the learned judge continues: — 
 
 " It appears to us that the cases cited on the other side do not impugn 
 these principles. They certainly do establish the point that, by the com- 
 mon law, the fee of the soil over which a public way of any kind is laid, 
 remains in the owner ; that he is entitled to the herbage and trees growing 
 on it, and minerals under it; but they hold in like manner that the use is in 
 the public or those who represent and act for the public, that this includes 
 all the uses incident to the accomplishment of the public objects for which 
 their charters had been granted; and if these, in their nature, require the 
 cutting down and removal of trees, such rights vest in the public. Barclay 
 v. Howell, 6 Pet. 498. 
 
 " This rule is general, and applies to all cases where land is taken for 
 highways, townways, turnpikes, canals, and railroads ; the principle is, that 
 such right extends to all uses directly or indirectly conducive to the enjoy- 
 ment of the franchise, and the advancement of the public benefit, contem- 
 plated by the establishment of such public work. But it is quite obvious 
 that, though the principle is general, the extent of such use must vary, not 
 only according to the exigencies of each particular kind, but to the varying 
 circumstances of each species of public work. A canal, for instance, must 
 have a towing-path as necessarily incident; roads must have drains and 
 culverts ; and a railroad, turn-outs, platforms, depots, and the like. And it 
 
EXTENT OF POWERS. 17 
 
 is obvious that railroads, with their engines and trains, from their compli- 
 cated character and peculiar mode of operation, may require more and 
 larger uses of the land for running and managing trains safely, than other 
 public ways; but what they do require is within the limits of the grant, 
 and where they are not especially prescribed or limited, must be determined 
 by the nature of such exigency. And if trees are found to be dangerous in 
 running cars, by obstructing the view of engineers and conductors up and 
 down the track, in approaching depots, crossing highways on the same 
 grade, or otherwise, the company have the same right to cut them down, 
 standing within their limits, as if they tended to obstruct the passage of 
 trains, and thus endanger their safety. 
 
 " And the Court are also of opinion that the right and power of the com- 
 pany to use the land within their limits, may not only be exercised origin- 
 ally, when their road is first laid out, but continues to exist afterwards ; 
 and if, after they have commenced operations it is found necessary, in the 
 judgment of the company, to make further uses of the land assigned to 
 them, for purposes incident to the safe and beneficial occupation of the road, 
 by raising or lowering grades, cutting down hills, and removing trees, they 
 have a right to do bo to the same extent as when the railroad was originally 
 laid out and constructed. All the reasons of necessity, propriety, and fitness 
 which apply to the one case, are equally applicable to the other. And we 
 think the authorities equally apply. Callender v. Marsh, 1 Pick., 431, was 
 the ease of a street and ancient highway. Tucker o. Tower, 9 Pick., 110, 
 was the case of a turnpike, where a new use was made of the land, by erect- 
 ing a toll-house, and cutting trees for that purpose, long after the road was 
 established. 
 
 " The case of railroads may be regarded as standing on somewhat 
 stronger grounds in this respect, for several reasons, — because railroads are 
 extremely costly, and proprietors cannot in the outset make and complete 
 all the works which they contemplate and intend to make ; because these 
 works are comparatively new, and improvements are constantly making in 
 the structure and management of the works, and thus companies may profit 
 by their own experience and that of others; and because an increase in 
 the business of carrying passengers and freight, may call for new works after 
 the roads have gone into operation, and these are new exigencies calling 
 for a new use of the land assigned to them. 
 
 " In applying these views of the law to the present case, the Court are 
 of opinion that the directions of the learned judge were incorrect in several 
 respects. "We think they were thus incorrect in directing, in the outset, 
 that the defendant could justify only on the ground that the acts com- 
 plained of were necessary to carry out the objects and purposes intended by 
 their charter, and that the burden of proof was on the defendant to prove 
 the necessity. 
 
 "Further, although the learned judge did instruct the jury that the com- 
 pany had the exclusive right to the use of the plaintiff's land so taken, as 
 
 3 
 
18 CONSTRUCTION AND EXTENT OE POWERS. 
 
 far as necessary, yet it was connected with another direction, in which he 
 instructed the jury that the officers of the company were not the sole and 
 exclusive judges of what was to be removed from the land taken, but the 
 necessity of the removal might be judged of by the jury; and if there 
 were clearly no necessity for such removal, then the defendant would be 
 responsible for cutting the trees ; whereas, we think the jury ought to have 
 been instructed that the company had a right, under the powers given them 
 by their act of incorporation, to cut down the trees in question, as one of 
 the acts to be done on the land within the five rods, to fit and prepare the 
 track for the safe and convenient use of it, for the transportation of persons 
 and freight by cars and locomotive engines ; that they were the judges of 
 what this exigency required, and that if the defendant, being their agent for 
 this purpose, cut down the trees by their authority, he was justified in doing 
 so. And also, that such authority might be given by the company to their 
 president, agents, and officers, either by by-laws providing for the appoint- 
 ment of such officers and defining their powers, or by a general or particu- 
 lar vote, or by any other mode by which an aggregate corporation can 
 express its will and exercise its powers." 
 
POWER OF LEGISLATURE OVER COMPANY. 19 
 
 CHAPTER III. 
 
 POWER OF THE LEGISLATURE OVER THE COMPANY. 
 
 The Charter Protected by the Constitution 
 of the United States. — It is provided in the 
 tenth section of the first article of the U. S. Con- 
 stitution, that " No State shall * * * pass any 
 * * * law impairing the obligation of contracts." 
 Charters granted to private corporations by the 
 State are, by a construction now settled, contracts 
 within the meaning of this clause. They confer 
 rights and privileges on the grantees, on the faith 
 of which the charter is accepted, and involve cor- 
 responding" duties and obligations on their part. 
 They imply a contract on the part of the State for 
 the quiet enjoyment and unimpaired security of 
 the privileges so granted. The franchises and 
 immunities are incorporeal hereditaments, and like 
 any other kind of property, may be the subject 
 of grant and contract, and are protected against 
 invasion or revocation by this constitutional in- 
 terdiction. 1 A railroad company is a private cor- 
 poration, whose charter is a contract between it 
 and the state, not subject to alteration by the 
 
 1 Dartmouth College v. Woodward, 4 Wheat. 518; Washington Bridge v. 
 State, 18 Conn. 53; Chesapeake and Ohio Canal Co. v. Baltimore and Ohio E. 
 R. Co., 4 Gill <fe Johns. 1 ; Erie and North East. R. R. Co. v. Casey, 26 Perm. 
 State, 287 ; 2 Parsons on Contracts, 515; 2 Kent, Com. 272, 275; Thorpe v. 
 Rutland and Burlington R. R. Co., 1 Williams, 144. 
 
20 POWER OF LEGISLATURE OVER COMPANY. 
 
 latter, so as to deprive the company of the rights 
 secured by the charter. 1 It cannot, as a general 
 rule, be subjected by subsequent legislation, to 
 obligations not imposed in the charter. Thus, 
 where a railroad company was by its charter au- 
 thorized to build a bridge over a navigable stream, 
 without being by the charter or previous laws 
 liable for consequential damages to owners of lands 
 lying on the river, a subsequent act, not accepted 
 by the company, imposing on it liability for such 
 damages was held to violate the obligation of the 
 contract implied in the charter. 2 Nor can the State 
 / impair the obligation of the contract subsisting 
 \ between the corporation and the individual mem- 
 ■ bers. 8 
 
 What Impairs the Obligation of the Contract 
 implied in the charter. exclusive privileges 
 not implied. — It has become a settled doctrine of 
 American jurisprudence that the grant of a franchise 
 in matters affecting the public interests, is to be con- 
 strued strictly, and nothing passes to the grantee 
 beyond what is required by its terms. 4 In accord- 
 ance with this principle, there is no implication in 
 the charter of a railroad company that the legisla- 
 ture will not authorize other rival companies, even 
 operating parallel lines however near, by whose 
 competition the value of the franchise, first granted, 
 
 1 Id. 
 
 * Bailey v. Phil. Wil. and Baltimore R. R. Co., 4 Harring. 389. 
 
 * New Orleans, Jackson, and Great Northern R. R. Co. v. Harris 27 Mis- 
 sissippi, 517. 
 
 4 Ante, ch. ii. pp. 9,12. 
 
POWEE OP LEGISLATURE OVER COMPANY. 21 
 
 may be greatly impaired or entirely destroyed. The 
 action of the legislature in incorporating such com- 
 peting companies, may in many instances be grossly 
 unjust; but the company which has not secured itself 
 against the injury by a provision in its charter against 
 other similar enterprises, cannot invoke the protec- 
 tion of the Federal Constitution. This principle has 
 been expounded in celebrated causes by the highest 
 judicial learning and ability, and is deeply laid in 
 constitutional law. On the same principle a railroad 
 company may be chartered, which materially injures 
 the value of the franchise of turnpike and bridge 
 companies already existing, where the latter have 
 not protected themselves against such enterprises by 
 a provision in their charter. 
 
 These principles of constitutional law were elabo- 
 rately discussed in the case of the Charles River 
 Bridge v. Warren Bridge. The legislature of 
 Massachusetts in 178 5, granted a charter to a com- 
 pany for the building a bridge over Charles River, 
 from Boston to Charlestown, under the name of the 
 Charles River Bridge, and authorized it to take tolls 
 of persons passing over the bridge for the term of 
 forty years, extended by a subsequent act to seventy 
 years. In 1828, before the expiration of the charter, 
 an act was passed authorizing the erection of the 
 Warren Bridge a few rods from the former, which 
 was to become free in six years ; and the result was 
 the reduction of the tolls of the Charles River Bridge 
 to a very small amount. The Supreme Court of the 
 United States decided that the grant of franchises 
 by the public in matters where the public interests 
 
22 POWER OF LEGISLATURE OVER COMPANY. 
 
 are concerned, as exemption from taxation and the 
 right of the state to authorize new roads and bridges, 
 is to be construed strictly; that nothing passes by 
 implication, and no rights are taken from the public 
 or given to the corporation beyond those which the 
 words of the charter, by their natural and proper 
 construction convey ; and. that as the charter in its 
 terms, granted no exclusive rights above and below 
 the bridge, and contained no stipulation on the part 
 of the state not to authorize another bridge above 
 or below it, no such exclusive right could be implied. 1 
 The construction of a railroad from the District of 
 Columbia to the city of Baltimore under the au- 
 thority of the legislature, is not an infringement 
 of the charter of a turnpike company previously 
 incorporated, which had already built a turnpike 
 between those two points, although the railroad 
 diverted travel from the turnpike. 2 The legisla- 
 ture of Virginia, having granted a charter to a 
 canal along the valley of the Tuckahoe Creek, was 
 not thereby inhibited from subsequently granting 
 a charter to another company to construct a rail- 
 road in the same valley, by which the profits of 
 the canal company might be annihilated. 8 The 
 
 1 Charles River Bridge v. Warren Bridge, 11 Peters, 419; S. C. 6 Pick. 
 Sll; 1 id. 345; West River Bridge v. Dix, 6 How. 532; S. C. 16 Vt. 466; 
 Oswego Falls Bridge v. Fish, 1 Barb. Ch. 547 ; M'Leod v. Burroughs, 9 Geo. 
 213; Harrison v. Young, 9 id. 359; Shorter v. Smith, 9 id. 611; White 
 River Turnpike Co. v. Vt. Central R. R. Co., 21 Vt. 590; Matter of Hamilton 
 Avenue, 14 Barb. 405. 
 
 ' Washington and Baltimore Turnpike Road v. Baltimore and Ohio E. R. 
 Co., 10 Gill & Johns. 392. 
 
 3 Tuckahoe Canal Co. v . Tuckahoe R. R. Co., 11 Leigh, 42, Tucker, P., 
 
 "The question then resolves itself into this : Has the legislature contracted 
 with the Canal Company that it shall have the exclusive transportation of 
 
POWER OF LEGISLATURE OVER COMPANY. 23 
 
 same doctrine has been ably enforced in Illinois, 
 where the charter of the Chicago and Rock Island 
 Railroad Company was held not to violate the con- 
 
 the Tuckahoe valley, and that no rival company Bhall be incorporated which 
 may impair its profits or take away its custom ? That it has expressly done 
 this, cannot be pretended. The act of incorporation contains no such pro- 
 vision. Is such a contract on the part of the government to be implied from 
 the grant of the charter for the construction of the canal ? I think not. It 
 can never be conceded that the incorporation of one company for internal 
 improvement, is an implied negative of all future power in the legislature to 
 incorporate other companies for other improvements. Such has never been 
 the interpretation of legislative grants in Virginia ; but wherever exclusive 
 grants are intended, express provisions are introduced for the purpose of 
 tying up the hands of the legislature, and restricting the future exercise of 
 legislative power. It never was dreamed that the establishment of one 
 bank was in itself a negative on the power to establish others. It never 
 has been admitted, that making one railroad was a negative to all future 
 power to construct another which might rival it ; but where that was the 
 design of the charter, it has ever been so expressed, as, in the act of 1833, 
 ch. 3, § 38, the rights of the Richmond and Fredericksburg Railroad Company 
 were expressly protected for a limited time against all rival charters. Were 
 it otherwise, what difficulties would present themselves! Without express 
 and definite provisions and limitations, how could we ascertain the extent of 
 the exclusive right? Experience has proved, that monopoly is very ingeni- 
 ous in extending its rights and enlarging its pretensions. Give it the carte 
 blanche of an implied contract, and we should soon find it without other 
 limit than the limits of professional ingenuity ; and the great mischief would 
 at once present itself of the improvement of the country being arrested by 
 the perpetual objection of interference with chartered rights. Chartered 
 companies are ever sensitive at the approach of a rival, and if the discovery 
 of a possible clashing of interests shall be held sufficient to nullify a subse- 
 quent charter, it is impossible to foresee to what extent the legislative power 
 may be applied in this important branch of its duties. * * * 
 
 "After the very able and comprehensive investigation of this subject in 
 the case of The Charles River Bridge v. The Warren Bridge, it would be 
 superfluous as well as vain for me to attempt to enforce by any arguments 
 of mine the principles established by the majority of the court, and sustained 
 with such conspicuous ability by the counsel for The Warren Bridge. It will 
 suffice for me to refer to that case, and to express my assent to the proposi- 
 tion it establishes, that the incorporation of a company for the construction 
 of a bridge or other improvement, where the public interest is concerned, is 
 not to be construed as conferring exclusive privileges, where none such are 
 expressly given by the charter ; and by consequence, that by charters of 
 
24 POWER OF LEGISLATURE OVER COMPANY. 
 
 tract between the State and the trustees of the 
 Illinois and Michigan Canal, and that a provision in 
 the charter of the latter, that the legislature should 
 not reduce its tolls, did not deprive it of the power 
 to authorize other improvements which would essen- 
 tially diminish them. 1 A clause in the charter of a 
 railroad company, that " No person, body politic or 
 corporate, shall in any way interfere with, molest, 
 disturb, or injure any of the rights or privileges" 
 thereby " granted, or that would be calculated to 
 detract from or affect the profits of said corporation," 
 has been held not to take from the State the right 
 to incorporate another company which would com- 
 pete with the former company, but only to protect 
 
 this description the legislature is not deprived of the power of granting 
 other charters to other companies, even side by side with the former and in 
 the same line of travel, provided there is no express restriction upon their 
 power in the first act of incorporation. Every principle of sound policy, 
 indeed, forbids that this should be lightly done, or that it should be done 
 without securing some indemnity to those who suffer under such legislation. 
 But it is not matter of right in the company ; it is matter of discretion in 
 the legislature ; and henee, it is very clearly n8 matter for judicial decision. 
 The injury done is not more direct tha n that which is in various instances 
 occasioned by laws of unquestioned validity. The inns and villages upon 
 every public road fall into dilapidation and ruin, upon the change of the 
 course of travel by the construction of a railroad, and flourishing towns 
 which have risen to wealth and importance on the faith of public law by 
 being made a port of entry, sink into insignificance upon the removal of 
 their custom-houses to more favored spots. Yet who doubts the power, 
 though many may doubt the wisdom, of the legislature in making ill-advised 
 changes, which bring ruin upon the enterprising, and misery upon thou- 
 sands ? This sport with human prosperity and happiness, indeed, cannot be 
 too much reprobated ; but its correction is to be found elsewhere, and not 
 here, unless the legislature transcend its power; and we have already seen, 
 that unless exclusive rights are contracted for, the legislative power is with- 
 out a trammel." 
 
 1 Illinois and Michigan Canal v. Chicago and Rock Island R R Co 14 
 111. 314. 
 
POWER OF LEGISLATURE OVER COMPANY. 25 
 
 suet former company from unauthorized illegal inju- 
 ries. 1 The grant to a railroad company of the right 
 to build a bridge over a river, does not violate a pre- 
 vious grant to a toll-bridge company, where no ex- 
 clusive right has been conferred on the latter. 2 And 
 even the exclusive right of the latter company to 
 maintain a toll-bridge within certain limits, may not 
 be infringed by the grant of power to a company to 
 maintain a railroad bridge within those limits, for the 
 purpose of carrying over the same the passengers on 
 the railroad. 8 The legislature of Virginia provided in 
 the charter of the Richmond, Fredericksburg, and 
 Potomac Railroad Company, that it would not " for 
 the period of thirty years from the completion of the 
 said railroad, allow any other railroad to be con- 
 structed between the city of Richmond and the city 
 of Washington, or for any portion of the said distance, 
 the probable effect of which would be to diminish 
 the number of passengers traveling between the one 
 city and the other upon the railroad authorized by 
 this act, or to compel the company, in order to retain 
 such passengers, to reduce the passage money." The 
 obligation of the contract with the company was 
 held by the Supreme Court of the United States not 
 to be impaired by a subsequent act incorporating the 
 Louisa Railroad Company, whose road came from 
 the west and struck its track at right angles at some 
 distance from Richmond, and which was authorized 
 
 1 Newcastle and Richmond E. R. Co. v. Peru and Indianapolis R. R. Co., 
 8 Indiana, 464. m 
 
 a Thompson v. N. Y. and Harlem R. R. Co., 3 Sandford Ch. 625. 
 
 8 Mohawk Bridge Co. v. Utica and Schenectady R. R. Co., 6 Paige, 554. 
 
26 POWER OF LEGISLATURE OVER COMPANY. 
 
 to cross its track and continue the road thus author- 
 ized to Richmond ; the provision in the charter of 
 the first-named company not excluding other rail- 
 roads, except for carrying passengers traveling be- 
 tween those two points. 1 
 
 1 Richmond, &e. R. R. Co. v. Louisa R. R. Co., 13 How. 11. M'Lean, 
 Wayne, and Curtis dissenting. Grier, J., delivering the opinion of the court, 
 said, " It is a settled rule of construction adopted by this court, ' that public 
 grants are to be construed strictly.' This act contains the grant of certain 
 privileges by the public to a private corporation, and in a matter where the 
 public interest is concerned ; and the rule of construction in all such cases is 
 now fully established to be this: 'that any ambiguity in the terms of the 
 contract must operate against the corporation, and in favor of the public ; 
 and the corporation can claim nothing but what is clearly given by the act.' 
 See Charles River Bridge v. Warren Bridge, 11 Peters, 544. Construing this 
 act with these principles in view, where do we find that the legislature have 
 contracted to part with the power of constructing other railroads, even 
 between Richmond and Fredericksburg, for carrying coal or other freight ? 
 Much less can they be said to have contracted that no railroad connected 
 with the western part of the State, shall be suffered to cross the complainant's 
 road, or run parallel to it, in any portion of its route. Such a contract can- 
 not be elicited from the letter or spirit of this section of the act. On the con- 
 trary, the preamble connected with this section shows that the complainant's 
 road was expected to ' form a part of the main northern and southern route 
 between the city of Richmond and the city of, Washington ; ' and the induce- 
 ment held out to those who should subscribe to its stock was a ' monopoly 
 of transporting passengers ' on this route ; and this is all that is pledged- or 
 guaranteed to them, or intended so to be, by the act. It contains no pledge 
 that the State of Virginia will not allow any other railroad to be constructed 
 between those points, or any portion of the distance, for any purpose ; but 
 only a road ' the probable effect of which would be, to diminish the number 
 of passengers, traveling between the one city and the other, upon the rail- 
 road authorized by the act,' or to compel the company to reduce the passage- 
 money. That the respondents will not be allowed to carry the passengers, 
 traveling between the city of Richmond and the city of Washington, is 
 admitted ; and they deny any intention of so exercising their franchise as to 
 interfere with the rights secured to the complainants. That the parties will 
 differ widely as to the construction of the grant, owing to the ambiguity 
 created by the use of the word ' between,' as it may affect the transporta- 
 tion of passengers traveling to or from the West, is more than probable. 
 But on this application for an injunction against the construction of the 
 respondent's road, the chancellor was not bound to decide the question by 
 
power of legislature over company. 27 
 
 Exclusive Privileges Expressly Conferred in 
 the Charter. — It is competent for the legislature, 
 unless restricted by the state constitution, to provide 
 in the charter of a railroad company that no other 
 railroad shall be authorized within certain limits, 
 or in terms to grant an exclusive right within those 
 limits. The provision in either form, operates as an 
 exclusive grant to the company, and in the former, 
 is not subject to the objection that it is a mere ex- 
 ecutory contract, and not the grant of a franchise. 
 The power of the legislature to confer an exclusive 
 privilege within certain limits cannot be questioned 
 on any well defined principles of public law. Promi- 
 nent among its duties, which concern the public 
 interests, is that of regulating highways, ferries, and 
 other means of internal communication, and determ- 
 ining their extent and the distance between them, 
 so as to advance the general convenience and pros- 
 perity. The granting of franchises is an ordinary 
 function of legislative power ; and whether they shall 
 be of greater or less extent, more or less exclusive, 
 is, in the absence of constitutional restrictions, within 
 the scope of legislative discretion. The inviolability 
 of the grant, in the form and to the extent conferred, 
 is required for the protection of private rights. The 
 charter is accepted by the corporators, relying on 
 the security of the provision against rival enter- 
 anticipation. And, although, he may have thrown out some intimation as to 
 his present opinion on that question, he has very properly left it open for 
 future decision, to be settled by a suit at law or in equity ' upon the facta of 
 the case as they may then appear.' But however probable this dispute or 
 contest may be, it ia not for this court to anticipate it, and volunteer an 
 opinion in advance." 
 
28 POWER OF LEGISLATURE OVER COMPANY. 
 
 prises, which is one of the inducements to its accept- 
 ance, The exclusive grant is thus a contract, which 
 the state cannot impair; and no such improvement 
 as is provided against can be made without compen- 
 sation to the company. The contract thus made, by 
 which one legislature binds itself, its successors, and 
 its constituents, does not operate to deprive the state 
 of the essential attributes of sovereignty. It may, 
 afterwards, in the exercise of the right of eminent 
 domain, authorize the very improvement or enter- 
 prise expressly provided against in its previous grant, 
 upon the condition upon which that right may be 
 constitutionally exercised — that of making just com- 
 pensation to the company enjoying the exclusive 
 grant. These principles of constitutional law may 
 be invoked by canal, bridge, or ferry companies 
 against railroad companies, or by one railroad 
 company against another. 1 A bridge company, in 
 
 1 Richmond, <fcc, Kailroad Co. v. Louisa Railroad Co., 13 How., 11. The 
 court in this case, assumed the power of the State to make such a contract, 
 it not being necessary to decide the point. Curtis, J., in delivering a dissent- 
 ing opinion, said, — 
 
 " It has been suggested by one of the defendants' counsel, that though 
 the power of the legislature to enter into a compact for some exclusive privi- 
 leges is not denied, yet that the legislature had not the power to grant such 
 privileges as are here claimed by the complainants, and therefore the State 
 is not bound thereby. This is rested not upon any express restriction on 
 the powers of the legislature, contained in the constitution of Virginia, but 
 upon limitations resulting by necessary implication from the nature of the 
 delegated power confided by the people of that State to their government. 
 But if, as must be and is admitted, it is one of the powers incident to a sove- 
 reign State to make grants of rights, corporeal and incorporeal, for the promo- 
 tion of the public good, it necessarily follows that the legislature must judge 
 how extensive the public good requires those rights to be. Whether the State 
 shall grant one acre of land or one thousand acres ; whether it shall stipu- 
 late for the enjoyment of an incorporeal right, in fee, for life or years ; 
 
POWER OP LEGISLATURE OVER COMPANY. 29 
 
 whose charter it was provided, that "no person 
 should have liberty to build another bridge, " across 
 a river between certain limits, is entitled to com- 
 pensation, upon the construction of a railroad bridge 
 across the river within those limits ; although at the 
 time when the bridge company was incorporated, 
 railroads were unknown, and in the charter of the 
 railroad company it was provided that any bridge 
 over the said river which might be necessary for its 
 purposes should be used exclusively for railroad 
 travel. 1 A provision in the charter of the Boston 
 and Lowell Railroad Corporation, "that no other 
 railroad than the one hereby granted, shall within 
 thirty years from and after the passing of this ^,ct, 
 be authorized to be made leading from Boston, 
 Charlestown, or Cambridge to any place within five 
 miles of the northern termination of the railroad 
 hereby authorized to be made," is a contract be- 
 tween the State and the company, which the legis- 
 lature of Massachusetts had the power to make, 
 that no other railroad from Boston, Charlestown, or 
 Cambridge to Lowell shall be lawfully made for 
 thirty years ; and it was not competent for the legis- 
 
 whether that incorporeal right shall extend to one or more subjects ; 
 and what shall be deemed a fit consideration for the grant in either case, is 
 intrusted to the discretion of the legislative power, when that discretion is 
 not restrained by the constitution under which it acts. This has been the 
 interpretation by all courts, and the practice under all constitutions in the 
 country, so far as I know ; and it seems to me to be correct. See Piscataqua 
 Bridge v. New Hampshire Bridge, 1 N. H. Rep., 35, and cases there cited; 
 Enfield Bridge v. Hartford and New Haven R. R. Co., 17 Conn. R., 40 ; 
 Washington Bridge v. State, 18 Conn. R., 53." 
 
 1 Enfield Toll Bridge Co. v. Hartford and New Haven R. R. Co., 17 Conn. 
 R., 40, 454. 
 
30 POWER OF LEGISLATURE OVER COMPANY. 
 
 lature to authorize other companies, by the use and 
 combination of several sections of their respective 
 roads, to establish a continuous and uninterrupted 
 line of transportation by railroad of persons and 
 property between Boston and Lowell. There being 
 no intention of the legislature to appropriate the 
 franchise of the Boston and Lowell Bailroad Corpo- 
 ration to public uses in a constitutional manner, ap- 
 parent in the acts authorizing one company to enter 
 upon and use the railroad of another, under color of 
 which the combination was effected, the Salem and 
 Lowell Bailroad Company, the Boston and Maine 
 Railroad Corporation, and the Lowell and Lawrence 
 Bailroad Company were enjoined from forming such 
 a continuous line. 1 The same provision was held 
 
 1 Boston and Lowell R. R. Corp. v. Salem and Lowell R. R. Co. et al., 2 
 Gray, 1, — Shaw, C. J. : " We are then brought to a consideration of § 12, upon 
 which the stress of the argument in the present case has seemed mainly to 
 turn. It provides that no other railroad than the one hereby granted shall 
 within thirty years be authorized to be made leading from Boston, Charles- 
 town, or Cambridge to any place within five miles of the northern termina- 
 tion of the railroad hereby authorized, that is the termination at Lowell. 
 The question is, does this provision confer any exclusive right, interest, fran- 
 chise or benefit on this corporation ? It is found in the same act ; the whole 
 is presented at once to the consideration of the corporators, to be accepted 
 or rejected as a whole; and this would of course constitute a consideration 
 in their minds, in determining whether to accept or reject the charter. If it 
 adds any thing to the value and benefit of the franchise, such enhanced value 
 is part of the price which the public propose to pay, and which the undertakers 
 expect to receive as their compensation for furnishing such public improvement. 
 
 "This is a stipulation of some sort, a contract, by one of the contracting 
 parties to and with the other; in order to put a just construction upon it, 
 we must consider the character and relations of the contracting parties, the 
 subject-matter of the stipulation, and its legal effect upon their respective 
 rights. 
 
 " It was made by the government in its sovereign capacity with subjects, 
 who were encouraged by it to advance their property for the benefit of the 
 public. It was certainly a stipulation on the part of the government, regulat- 
 
POWER OF LEGISLATURE OVER COMPANY. 31 
 
 not to be infringed by an act authorizing the con- 
 
 ing its own conduct, and putting a restraint upon its own power to authorize 
 any other railroad to be built with a right to levy a toll ; but without an 
 authority from the government, no other company or person could be 
 authorized so to make a railroad and levy toll, and of course no other such 
 road could lawfully be made. It was, therefore, equivalent to a covenant 
 for quiet enjoyment against its own acts and those of persons claiming under 
 it. This is, in fact, all that the government could stipulate. It could not 
 covenant with the corporation for quiet enjoyment against strangers and 
 intruders, against the unauthorized and illegal disturbance of their rights by 
 third parties : against these, they would have their remedy in the general 
 laws of the land. But it has been argued that this stipulation, as it appears 
 in the charter, is a mere executory covenant or undertaking, and is not an 
 executed contract. But we think it may be both : so far as it confers a 
 present right, it is executed ; so far as it amounts to a stipulation that the 
 covenantor will not disturb the enjoyment of the right granted, it may be 
 deemed executory. So, a deed conveying land transfers on its delivery all 
 the title and interest which the grantor can confer, and is also a stipulation 
 that the benefit granted shall not be revoked or impaired. And this is held 
 to apply to the grants of governments as well as to those of individuals. 
 Fletcher v. Peek, 6 Cranch, SI. He who has the power of conferring » 
 right or a franchise lying solely in grant, and who stipulates, for a valuable 
 consideration, that another Bhall have and enjoy it undisturbed and unmo- 
 lested by any act or permission of his, in effect grants such right or franchise. 
 But, more especially, when such right is conferred by the community in the 
 form of a statute, having all the forms of law, and sanctioned by the govern- 
 ment acting in behalf of all the people, and having power to bind them by 
 law, such right would seem to be clothed with as much solemnity, and to 
 have the same force and effect, as if it were the grant of an exclusive right 
 in terms. We are therefore of opinion, that under this form of words, that 
 no other railroad should be authorized to be made for thirty years, the 
 government, as far as it was in their power, intended to engage with the 
 corporation that no other direct railroad between Boston and Lowell should 
 be legally made ; leaving them to guard themselves from unauthorized and 
 illegal disturbance by the general laws in the course of the ordinary admini- 
 stration of justice. This is strengthened by the consideration, that as their 
 whole remuneration would depend upon tolls, uncertain in amount, it was 
 intended that they should be to some extent secure against any authorized 
 road taking the same travel, and of course the same tolls. There is « pro- 
 vision in the close of this § 12, which in our judgment adds some weight to 
 this conclusion. There is a right reserved to the Commonwealth, after a 
 certain term of years to purchase the railroad, and all the rights of the cor- 
 poration, on reimbursing them the whole cost with ten per cent, profit, and 
 
32 POWER OF LEGISLATURE OVER COMPANY. 
 
 struction of a railroad from Boston to a point "not 
 
 then follows this provision: 'And after such purchase, the limitation pro- 
 vided in this section [that no other railroad shall he authorized to he made] 
 shall cease, and he of no effect.' - From this provision it is manifest that the 
 restriction, as it is termed, was imposed upon the government, and of course 
 upon all the subjects, for the benefit of this corporation ; and after the 
 government should have succeeded to their rights by purchase, then there 
 would be no longer any occasion to impose any restriction on the government ; 
 it might do what it would with its own, and it would then be at liberty to 
 make any other grant or not at its pleasure. This carries a strong implication 
 that until such purchase, and so long as the income from tolls would enure 
 to the benefit of the proprietors, the exclusive right, so far as these restric- 
 tions upon other railroads to take the same travel and the same tolls made 
 it exclusive, should stand part of the charter. 
 
 " But it is strongly urged, that if the legislature intended to grant such 
 exclusive right, and the terms of the whole act, taken together, will bear 
 and require that construction, and they did grant such exclusive right, and 
 did restrain such succeeding legislatures from making any grant or contract 
 inconsistent with it, the provision itself was beyond the power of the legis- 
 lature, and was void. 
 
 " We readily concede that, for general purposes of legislation, the legis- 
 lature, rightly constituted, has full power to make laws, to repeal former 
 laws ; and of course the last legislative act is binding, and necessarily re- 
 peals all prior acts which are repugnant. 
 
 " But in addition to the lawmaking power, the legislature is the repre- 
 sentative of the whole people, with authority to control and regulate public 
 property and public rights, to grant lands and franchises, to stipulate for, 
 purchase, and obtain all such property, privileges, easements, and improve- 
 ments, as may be necessary or useful to the public, to bind the community 
 by their contracts therefor, and generally to regulate all public rights and 
 interests. 
 
 " It is under this authority that lands are granted, either in fee or upon 
 any other tenure ; that the uses of navigable streams and waters are reg- 
 ulated, the right to build over navigable waters, to erect bridges, turnpikes, 
 and railroads, and other similar rights and privileges, are granted and jus- 
 tified. 
 
 " Of the necessity and convenience of all roads and other public works 
 and improvements, of their fitness, and the best mode of providing them, 
 the established government of the State, acting by the legislature for the 
 time being, must necessarily judge and determine. They must decide 
 whether it is best, to provide for them by funds from the public treasury ; 
 or to procure individuals to advance their own funds for the purpose, to be 
 reimbursed by tolls, and to make just and adequate provisions incident to 
 
POWER OF LEGISLATURE OVER COMPANY. 33 
 
 within five miles of Lowell, although within the 
 space included by two straight lines drawn from 
 
 each. Supposing ferrie3 or bridges are obviously necessary oyer a long and 
 broad river, it ia equally obvious that no public convenience would require 
 them to be built parallel and close to each other ; on the contrary, such 
 erectiofls would be an unnecessary waste of property. Would it not be for 
 the legislature to decide within what Btated and fixed distances from each 
 other public convenience would require them? If they were erected by 
 funds drawn directly from the State, the legislature would plainly have the 
 power to determine such distances, and provide that no one should be built 
 within the distances thus fixed. May they not, with a due regard to the pub- 
 lic exigencies and public interests, do the same thing, when such public works 
 are erected by individuals, at the instance and procurement of government, 
 for public use S Were it otherwise, and were all such grants and stipulations 
 repealable by a subsequent legislature because they are- in the form of laws, 
 then the unlimited power of the legislature to alter and change the laws, 
 sometimes called, rather extravagantly, the omnipotence of parliament, 
 would be a source of weakness, and not of strength. In making such grants 
 and stipulations, no doubt great caution and foresight are requisite on the 
 part of the legislature, — a just estimate of the public benefit to be procured, 
 and the cost at which it is to be obtained ; and as great changes in the state 
 of things may take place in the progress of time, — a great increase of travel, 
 for instance, on a given line, — which changes cannot be specifically foreseen, 
 it is the part of wisdom to provide for this, either by limitation of time, 
 reservation of a power to reduce tolls, should they so increase at the rates 
 first fixed as to become excessive, or of a right to repurchase the franchise, 
 upon equitable terms, so that the contract shall not only be just and equal 
 in the outset, but within reasonable limits continue to be so. In the charter 
 of the Boston and Lowell Railroad Corporation the government reserved 
 the right, both to regulate the tolls, and purchase the franchise upon terms 
 fixed and making part of the contract. When such a contract has been 
 made by the legislature, upon considerations of an equivalent public benefit, 
 and where the grantees have advanced their-money to the public upon the 
 faith of it, the State is bound, by the plain principles of justice, faithfully to 
 respect all grants and rights thus created and vested by contract. Such a 
 power of regulating public rights is everywhere recognized as one distin- 
 guishable from that of legislation ; a power incident and necessary to all 
 well-regulated governments, and when rightly exercised is within the con- 
 stitutional power of the legislature, and binding upon the government and 
 people. 
 
 •• As the result of the whole case, the Court are of opinion that the Bos- 
 ton and Lowell Railroad Corporation acquired by their charter and act of 
 incorporation a right, at their own charge and expense, but for the public 
 
 4 
 
34 POWER OP LEGISLATURE OVER COMPANY. 
 
 the first terminus to points five miles on each side 
 of the other. 1 The grant of an exclusive right to 
 build a railroad between a city and another point, 
 
 accommodation and use, to locate and construct a railroad from the city of 
 Boston to Lowell, for the transportation and conveyance of persons and 
 property between those places by railroad cars, and to levy and receive, for 
 their own benefit and reimbursement, certain tolls for the carriage of per- 
 sons and property ; and that, as » part of their franchise, privilege, and 
 right, and the better to secure to them a just and reasonable compensation 
 and reimbursement by the tolls so granted, the Commonwealth did, by the 
 said act of incorporation, grant to and stipulate with the 6aid Corporation, 
 that no other railroad, within the time therein limited, and not yet elapsed, 
 should be authorized to be made, leading from Boston, Charlestown, or 
 Cambridge (Charlestown then embracing the territory now comprising the 
 town of Somerville), to any place within five miles of the northern termina- 
 tion of said railroad at Lowell. Without such authority of the legislature, 
 we think, that no such railroad, within the limits prescribed, could be law- 
 fully made by other persons or corporations ; and, therefore, this grant and 
 stipulation, to a certain extent exclusive, was a part, and a valuable part, of 
 the plaintiffs' franchise ; and that this grant and stipulation it was compe- 
 tent for the legislature on behalf of the public to make ; and that the same 
 was a valid grant and contract. 
 
 " We are also of opinion that the legislature have not, since the granting 
 of said charter, by right of eminent domain, taken, or manifested any inten- 
 tion to take, any part of the right and franchise of the plaintiffs for public use ; 
 and that no act or charter has been granted to the three defendant corporations, 
 either or all of them, to take or use any part of the right and franchise of 
 the plaintiffs ; and if, in any manner, the acts of the defendants, under color 
 of their acts of incorporation, do infringe upon the rights of the plaintiffs, 
 such infringement is not warranted by either or all of the same acts : it is un- 
 lawful, and constitutes a disturbance and nuisance to the plaintiffs, for which 
 they are entitled to a remedy. . 
 
 "We are also of opinion that the several defendant corporations, having 
 been incorporated and chartered to establish railroads between certain ter- 
 mini, according to their respective acts of incorporation, have no right, by 
 the use and combination of several sections of their respective railroads, to 
 establish a continuous and uninterrupted line of transportation by railroad, 
 of persons and property, between Lowell and Boston ; and that the actual 
 establishment of such a continuous line of transportation by railroad is sub- 
 stantially making a railroad other than that authorized to be made by the 
 plaintiffs, to their injury, and contrary to the rights conferred on them by 
 their charter.'' 
 
 1 Boston and Lowell R. R. Corp. •„. Boston and Maine R. R. 5 Cush. SIB. 
 
POWER OF LEGISLATURE OVER COMPANY. 35 
 
 is to be construed with reference to the limits of the 
 city at the time the grant was made, so as not to 
 exclude a railroad to a part of the city not then 
 included within its limits. 1 
 
 Grant of Exemption from Taxation. — The power 
 of the legislature of a State, when not prohibited 
 by its constitution, to bind it by a grant of exemp- 
 tion from taxation, has been contested, as an unau- 
 thorized parting with essential attributes of sov- 
 ereignty. 2 It has, however, been sustained in the 
 Supreme Court of the United States, but not with- 
 out a conflict of opinion among the judges. 8 It has 
 also been sustained in several of the state courts. 4 
 The charter may prescribe a temporary rule of tax- 
 ation, which may be raised without impairing the 
 obligation of the contract. 6 The abandonment of the 
 taxing power is not to be presumed, in a case in 
 
 1 Pontchartrain R. R. Co. v. Lafayette and Pont. R. R. Co. 10 La. Ann. 741. 
 
 ' Piscataqua Bridge v. N. H. Bridge, 7 N. H. 69 ; Brewster v. Hough, 
 10 id. 138 ; Backus v. Lebanon, 11 id. 24; Debolt v. Ohio and Life Ins. and 
 Trust Co., 1 Ohio State, 563 ; Mechanics and Traders' Bank v. Debolt, id. 
 691 ; Toledo Bank v. Bond, id. 622 ; Plank Road Co. v. Halsted, 3 id. 678 ; 
 Thorpe v. Rutland and Burlington R. R. Co., 1 Williams, 146. 
 
 3 State Bank of Ohio v. Knoop, 16 How. 369 ; Ohio Life Ins. and Trust 
 Co. o. Debolt, id. 416 ; Dodge v. Woolsey, 18 id. 231. See New Jersey v. 
 Wilson, 7 Cranch. 164 ; Gordon v. Appeal Tax Court, 3 How. 133. 
 
 * O'Donnell v. Bailey, 24 Missis. 386 ; Armington v. Barnet, 15 Vt. 751 ; 
 Herrick v. Randolph, 13 id. 525 ; Atwater v. Woodbridge, 6 Conn. 223 ; 
 Osborne v. Humphrey, 7 id. 335 ; Parker v. Redfield, 10 id. 495 ; Landon v. 
 Littlefield, 11 id. 251 ; State v. Berry, 2 Harrison, 80 ; Camden and Amboy 
 R. R. Co. v. Hillegas, 3 id. 11 ; Same v. Commissioners, 3 id. 71 ; Gardners 
 State, 1 Zabris. 557 ; Mayor, &c. of Baltimore v. Baltimore and Ohio R. R. 
 Co. 6 Gill, 288 ; 111. Central R. R. Co. v. County of MLean, 17 111. 291.. 
 
 ' Easton Bank v. Commonwealth, 10 Barr, 442 ; Ohio Life Ins. and Trust 
 .Co. v. Debolt, 16 How. 416. 
 
36 POWER OF LEGISLATURE OVER COMPANT. 
 
 which the deliberate purpose of the state to aban- 
 don it does not appear. It is essential to the ex- 
 istence of government, and it is of vital importance 
 that it should remain unimpaired. 1 In the absence 
 of any special exemption, the stocks and real and 
 personal property of a railroad company may be 
 taxed by the state f and any special exemption 
 thereof in the charter, is not to be extended by 
 construction. Thus, where two companies were 
 consolidated, one of which to a certain extent was 
 exempted by its original charter from taxation, and 
 the other not, and the act of consolidation provided 
 that the new company should be entitled to all the 
 powers, privileges, and advantages at that time be- 
 longing to the two companies, the exemption did 
 not after the consolidation apply to that part of the 
 road owned originally by the company which was 
 not by its charter exempted from taxation, but only 
 to so much of the road as was owned by the company 
 which, by its charter, was entitled to the exemption. 8 
 Statutory exemptions from taxation which do not 
 amount to grants of franchises, and the rules for 
 assessing the property of railroad companies, will be 
 discussed in the next chapter. 
 
 Reservation of Power bt the Legislature to 
 impose additional duties and liabilities on the 
 Company. — The power to amend, alter, or repeal the 
 
 1 Providence Bank v. Billings, 4 Peters, 661. 
 
 2 Mayor and City Council of Baltimore v. Baltimore and Ohio R. R. Co. 
 6 Gill. 288 ; 111. Central R. R. Co. v. County of M'Lean, 17 111. 296. 
 
 8 Philadelphia and Wilmington R. R. Co. v. Maryland, 10 How. 376. 
 
POWER OF LEGISLATURE OVER COMPANY. 37 
 
 charter, may be reserved by the legislature by a 
 provision to that effect inserted therein, or in a general 
 law declared applicable to all acts of incorporation, 
 afterwards passed ; and the right of the legislature 
 to alter or repeal the charter is thus made a part 
 of the contract. 1 The charter of the company is, by 
 such a reservation subject to any reasonable amend- 
 ment or alteration which the legislature may make, 
 and any reasonable additional obligations may be 
 imposed on the company. Thus, it may be required 
 by virtue of such reservation to abandon the use of 
 steam power in propelling its cars through cities, or 
 to raise or lower highways where its track crosses 
 them, when directed by the municipal authorities. 2 
 The legislature, under this power may increase the 
 liability of the stockholders who will not thereby 
 be exonerated from liability on their subscriptions 
 for stock. 8 The subscriber has been held not to be 
 released, where the legislature in pursuance of such 
 a reservation granted to the company the power to 
 change its route. 4 There being a general statute of 
 Missouri, reserving the power to alter or amend acts 
 of incorporation, an act of its legislature making 
 companies previously incorporated liable to labor- 
 ers, employed by contractors, for the work done by 
 them on their roads, has been held constitutional. 6 
 
 J 2 Kent, Com. 306. 
 
 " Buffalo and Niagara Falls R. R. Co. v. City of Buffalo, 5 Hill, 209 ; City 
 of Roxbury v. Boston and Providence R. R Corp., 6 Cush. 424. 
 ' South Meadow Dam Co. v. Gray, 30 Maine, 547. 
 4 - Pacific R. R. Co. v. Renshaw, 18 Missouri, 210. 
 Peters v. St. Louis and Iron Mountain R. R. Co., 23 Missouri, 111. 
 
38 POWER OF LEGISLATURE OVER COMPANY. 
 
 The general reservation of the power to amend, 
 alter, or repeal the charter must receive a reasonable 
 construction. While it authorizes alterations of the 
 charter, and the imposition of duties required by 
 the general convenience, it cannot sanction a reckless 
 invasion of the rights of property, or a revolution in 
 the character and objects of the corporation. 1 The 
 property of the company is still protected against 
 being taken for public uses, without just compensa- 
 tion being made therefor. The government may 
 exercise its reserved pawer, but it cannot take what 
 it did not give, to wit, the private property of the 
 corporation, except in the exercise of its right of 
 eminent domain. Thus, it has been held that the 
 reservation does not authorize the legislature to pass 
 a subsequent act requiring the company, at its own 
 expense, to cause a proposed new street or highway, 
 laid out by the commissioners of highways, to be 
 taken across its track, and to cause all embank- 
 ments, excavations, and other works, necessary for 
 that purpose, to be done on its road. 2 
 
 The power to repeal the charter may be reserved 
 absolutely to the legislature, and when so reserved, 
 may be exercised at its pleasure. It may be reserved 
 to be exercised on a certain event taking place, as of 
 some default or abuse of corporate powers ; and then 
 the legislature is to determine the occurrence of 
 the event, and may, on finding the same, repeal the 
 charter without having the default or abuse first 
 
 1 White v. Syracuse and Utioa E. R. Co., 14 Barb. 560 ; Pacific E. E. Co. 
 v. Renshaw, 18 Missouri, 216. 
 
 5 Miller v. N. Y. and Erie E. R. Co., 21 Barb. 513. 
 
P0WEE OF LEGISLATURE OVEE COMPANY. 39 
 
 judicially ascertained. Where the conditional right 
 is reserved, it is not yet settled whether the de- 
 cision of the legislature, that the event on which the 
 power of appeal was to be exercised has occurred, 
 is conclusive on the courts ; but it is, at least, to 
 be presumed by them to be right. The reserved 
 power of the legislature to repeal the charter, is a 
 part of the contract created thereby. Its exercise 
 does not impair, but enforces, the obligation of the 
 contract. Nor is it taken away by the institution 
 on the part of the state of a judicial proceeding 
 for enforcing a forfeiture. 1 
 
 What Rights Peotected by the Constitutional 
 Prohibition. — A law operating on the relations be- 
 tween the company and other parties before a con- 
 tract between them has been concluded, or which 
 merely divests vested rights where there is no con- 
 tract, is not prohibited by the U. S. Constitution, 
 although if it interferes with vested rights, it may 
 be interdicted by some of the state constitutions. 
 Thus, where the charter provided a mode of appraise- 
 ment of the estate taken, and prescribed that upon 
 payment or tender of the valuation, the company 
 should be entitled to the estate as fully as if con- 
 veyed by the owner, a law enacted before any such 
 payment or tender and after the inquisition had been 
 made and returned to the proper court, setting it 
 aside and directing an inquisition de novo to be taken, 
 
 1 M'Laren v. Pennington, 1 Paige, 102 ; De Camp v. Eveland, 1 9 Barb. 81 ; 
 Crease v. Babcock, 23 Pick. 334; Miners' Bank v. United States, 1 Greene 
 (Iowa), 661 ; Erie and North East. K. K. Co. •«. Casey, 26 Penn. State, 287. 
 
40 POWER OF LEGISLATURE OVER COMPANY. 
 
 — the conditions for the vesting of the estate not 
 having been performed when the law was enacted, 
 — was held not to divest vested rights or impair the 
 obligation of a contract between the company and 
 
 the State. 1 
 
 The Company subject to Police Laws. — A rail- 
 road company, although no power is reserved to 
 amend or repeal its charter, is nevertheless subject, 
 like individuals, to such police laws as the legislature 
 may from time to time enact for the protection and 
 safety of citizens and the general convenience and 
 good order. These laws, although imposing duties 
 and liabilities on the company other than those con- 
 tained in its charter or existing when it was granted, 
 do not impair the obligation of the contract implied 
 therein. Its property and essential franchises are, 
 indeed, protected by the U. S. Constitution; but the 
 company itself is not thereby placed above the laws. 
 It seems not to have been the design of that in- 
 strument to disarm the States of the power to pass 
 laws to protect the lives, limbs, health, and morals of 
 citizens, and to regulate their conduct towards each 
 other, and the mode of using property so as not to 
 injure each other. Such laws may incidentally 
 impair the value of franchises, or of rights held 
 under contracts, but they are passed diverso intuitu, 
 and are not within the constitutional inhibition. 2 
 
 1 Baltimore and Susquehanna R. R. Co. v. Nesbit, 10 How. 395. 
 
 2 Vanderbilt v. Adams, 1 Cowen, 849 ; Coates v. Mayor, <fcc. New York, 
 id. 585; Baker v. Boston, 12 Pick. 194; Benson v. Mayor, &c. New York, 10 
 Barb. 245; 2 Parsons on Cont. 538; 24 Am. Jurist. 279, 280. 
 
POWER OF LEGISLATURE OVER COMPANY. 41 
 
 The company may, therefore, be required to blow 
 a whistle, ring a bell, put up sign-boards, station men 
 with signals, stop its trains when approaching or 
 crossing highways, turnpikes, or other railroads, to 
 erect fences and cattle-guards along its track, or to 
 use any other reasonable precaution either in the 
 construction of its road or machinery, or in their op- 
 eration, for the safety of passengers or of the public 
 generally. 1 
 
 1 Galena and Chicago Union R. R. Co. v. Loomis, 13 111. 548 ; Suydam v. 
 Moore, 8 Barb. 388, 365 ; Waldron v. Rensselaer and Saratoga R. R. Co., id. 
 390, 394 ; Norris v. Androscoggin R. R. Co., 39 Maine, 273 ; Madison and 
 Indianapolis R. R. Co. v. Whiteneek (Supreme Court of Indiana), Am. Law 
 Register, Feb. 1854, and to be reported in 8 Indiana; Nelson v. Vt. and 
 Canada R. R. Co., 26 Vt. 7 1*7 ; Thorpe v. Rutland and Burlington R. R. Co., 
 1 Williams (Vt.), 140. Redfield, C. J.: "The police power of the State 
 extends to the protection of the lives, limbs, health, comfort, and quiet of all 
 persons, and the protection of all property 'within the State, according to 
 the maxim, Sic utere tuo ut alienam non loedas ; which being of universal 
 application, it must of course be within the range of legislative action to 
 define the mode and manner in which every one may so use his own as not 
 to injure others. So far as railroads are concerned, this police power, which 
 resides primarily and ultimately in the legislature, is two-fold : 1. The police 
 of the roads, which in the absence of legislative control, the corporations 
 themselves exercise over their operatives, and to some extent over all who 
 do business with them, or come upon their grounds, through their general 
 statutes and by their officers. We apprehend there can be no manner of 
 doubt that the legislature may, if they deem the public good requires it, — of 
 which they are to judge, and in all doubtful cases their judgment is final, — 
 require the several railroads in the State to establish and maintain the same 
 kind of police which is now observed upon some of the more important 
 roads in the country for their own security, or even such a police as is found 
 upon the English railways and those upon the continent of Europe. No 
 one over questioned the right of the Connecticut legislature to require trains 
 upon all their railroads to come to a stand before passing draws on bridges ; 
 or of the Massachusetts legislature to require the same thing- before passing 
 another railroad. And by parity of reason may all railways be required so 
 to conduct themselves, as to other persons natural or corporate, as not 
 unreasonably to injure them or their property. And if the business of rail- 
 ways is specially dangerous, they may be required to bear the expense of 
 
42 POWER OF LEGISLATURE OVER COMPANY. 
 
 The legislature may also, by a subsequent act in- 
 flict severe penalties on the company for exceeding 
 the rate of toll prescribed in its charter. 1 It may 
 give a remedy to a party wrongfully injured by the 
 company, although previous to the statute he was 
 without remedy. Thus, at common law no person is 
 civilly liable to the personal representatives of a 
 party who was killed by his negligence. A railroad 
 company, although not answerable in damages to 
 the personal representatives of a passenger killed 
 by the carelessness of its servants, may, by an act 
 passed subsequently to the granting of the charter, 
 be made liable for such injuries by a penalty to be 
 recovered of it by indictment ; and it is no objection 
 to the constitutionality of the act that it applies 
 only to railroad companies, and does not extend the 
 
 erecting such safeguards as will render it ordinarily safe to others, as is 
 often required of natural persons under such circumstances. 
 
 " There would be no end of illustrations upon this subject, which in the 
 detail are more familiar to others than to us. It may be extended to the 
 supervision of the tracks, tending switches, running upon the time of other 
 trains, running a road with a single track, using improper rails, not using 
 proper precaution by way of safety-beams in case of the breaking of axle- 
 trees, the number of brakemen upon a train with reference to the number of 
 cars, employing intemperate or incompetent engineers and servants, running 
 beyond a given rate of speed, and a thousand similar things, most of which 
 have been made the subject of legislation or judicial determination, and all 
 of which may be. Hegeman v. Western R. R. Co., 16 Barbour, 353. 
 
 "2. There is also the general police power of the State, by which 
 persons and property are subjected to all kinds of restraints and burdens, in 
 order to secure the general comfort, health, and prosperity of the State ; of 
 the perfect right in the legislature to do which no question ever was, or 
 upon acknowledged general principles ever can be, made so far as natural 
 persons are concerned. And it is certainly calculated to excite surprise and 
 alarm, that the right to do the same with regard to railways should be made 
 a serious question." 
 
 1 Camden and Amboy R. R. Co. v. Briggs, 2 Zabriskie, 623. 
 
POWER OF LEGISLATURE OVER COMPANY. 43 
 
 increased liability to other classes of common car- 
 riers. The act superadds a legal to what was be- 
 fore a moral obligation, and enforces by a penalty 
 an acknowledged duty to use proper diligence and 
 skill to preserve the lives of persons whom it un- 
 dertakes to transport. 1 
 
 1 B. C. and M. R. R. Co. v. The State, 82 New Hamp. 215.— Bell, J. : 
 " The first question raised upon the plea in this case, which is in its nature 
 merely a demurrer, is as to the constitutionality of the statute upon which 
 this indictment is founded. Assuming that by its true construction, it sub- 
 jects the plaintiff in error to indictment, as the State contends, it is said that 
 it subjects the defendants to additional and onerous liabilities, and is, there- 
 fore an infringement of their vested rights. 
 
 " It is asserted that the legislature have no power to infringe either the 
 express or implied privileges of a corporation ^ and this principle in the ab- 
 stract we are inclined to admit. If this case falls within it, it is governed 
 by it. But we think this principle cannot be construed to limit the general 
 powers of legislation, where such legislation merely regulates the existing 
 rights and duties of corporations, or provides new modes of enforcing ac- 
 knowledged obligations. Camden and A. R. R. Co. v. Briggs, 2 N. J. 623 ; 
 Galena and C. U. R. R. Co. v. Loomis, 13 111. 548. This statute provides a new 
 mode of enforcing the admitted duty of these bodies to conduct their business 
 with such care and prudence as not to endanger the lives and limbs of those 
 whom they undertake to transport, and their obligations to compensate those 
 who suffer by their failure to perform their duty, for the damages sustained. 
 It was never a right of these corporations to conduct their business so care- 
 lessly as to destroy the lives of their customers, either by any express or im- 
 plied grant. Their general liability to answer civilly in such cases, is beyond 
 question ; and the principle of law which prevented any redress for personal 
 wrongs in case of the death of either party, was an absurd provision of a 
 barbarous age, which had ceased to exist here in all cases where an action 
 was commenced in the lives of the parties. It would be but a reasonable 
 extension of the same principle acted upon in the statute, granting the right 
 of prosecuting actions for personal wrongs to the personal representatives 
 (Comp. Stat. 481, sec. 14), to have allowed the same representatives to pros- 
 ecute actions which might have been commenced by the deceased, if sufficient 
 time had elapsed between the injury and his decease. It can make no differ- 
 ence in the principle, that the legislature, in giving this right, have endeav- 
 ored to protect these corporations from popular prejudice and excitement, 
 and have required the prosecution to be in the form of an indictment, thus 
 forbidding any action unless deemed well founded by a grand jury, and by 
 
44 POWER OP LEGISLATURE OVER COMPANY. 
 
 It has been decided in Massachusetts that the 
 legislature may impose on a railroad company, 
 already existing, the liability for injuries by fire 
 communicated from its locomotive engines, with or 
 without negligence, although the company without 
 a special statute was not liable for such injuries, in 
 the absence of negligence. It was considered that 
 the right to use the parcel of land appropriated to a 
 railroad does not deprive the legislature of the power 
 to enact such regulations and impose such liabilities, 
 for injury suffered from the mode of using the road, 
 as the occasion and circumstances may reasonably 
 justify. 1 
 
 The legislature cannot by virtue of its police 
 power impose additional burdens on the company, 
 
 limiting the amount of the fine to be assessed by the court, and thus pre- 
 venting the assessment of excessive damages. 
 
 "Again, it is said that the law is partial, not applicable to common carriers 
 generally, nor even to carriers by steam, but is confined to the case of rail- 
 roads. The force of this objection is admitted in cases where a law is made 
 applicable to a class out of a large number, all standing substantially in the 
 same position ; but this law applies to a class well defined, of common car- 
 riers, distinguished by the circumstance that they use, in their business, 
 steam locomotives, driven at a rate of speed known in no other mode of 
 traveling, and attended with risks peculiar to themselves, and far exceeding 
 those of any other carriers. The same reason for this provision does not 
 apply to any other class of persons, and we think the law is free from just 
 exception on this account." 
 
 1 Lyman v. Boston and Worcester R. R. Corp., 4 Cush., 288. As in this 
 case the company was not liable at common law or at the time of its incor- 
 poration, and was not guilty of any default, either by the negligence or mis- 
 conduct of its servants, and was not chargeable with the non-performance of 
 any positive duty imposed, the decision may be thought to go quite far enough. 
 There was, however, an earlier statute of Massachusetts, passed March 11, 
 1831, before the company's charter was granted, reserving the right to 
 amend, alter, or repeal all future acts of incorporation ; which may have 
 been in the mind of the Court. Roxbury v. Boston and Worcester R. R. 
 Corp., 6 Cush., 424. 
 
POWER OF LEGISLATURE OVER COMPANY. 45 
 
 of mere private interest and concern and not re- 
 quired by the general security and convenience. 1 
 Thus, it has been considered in New York that it 
 could not impose the duty, in a law enacted subse- 
 quently to the charter being granted, to build farm- 
 crossings for the convenience of the owner of the 
 land through which the road passes, the cost of 
 building them having in legal presumption been 
 awarded to him in the damages assessed. 2 The 
 competency of the legislature, in the exercise of its 
 power to regulate the use of property and espe- 
 cially the duties of adjoining owners, to impose on 
 the company the duty to erect farm-crossings, has, 
 however, been affirmed in Vermont, and stands on 
 sound reasons of public policy. 8 
 
 1 Nelson v. Vermont and Canada R. R. Co., 26 Vt., Ill; Thorpe v. Rut- 
 land and Burlington R. R. Co., 1 Williams, 162, 163. 
 
 Milliman v. Oswego and Syracuse R R. Co., 10 Barb., 87. See Marsh 
 v. New York and Erie R. R. Co. 14 id., 3*70 ; Tombs v. Rochester and Syra- 
 cuse R. R. Co., 18 id., 585 ; TJnderhill v. New York and Harlem R. R. Co., 
 21 id. 499. • 
 
 * Thorpe v. Rutland and Burlington R. R. Co.. 1 Williams, 140, 152. 
 Redfield, C. J. : " But the argument that these cattle-guards at farm-cross- 
 ings are of so private a character as not to come within the general range 
 of legislative cognizance, seems to me to rest altogether upon a misappre- 
 hension. It makes no difference how few or how many persons a statute 
 will be likely to affect. If it professes to regulate a matter of public con- 
 cern, and is in its terms general, applying equally to all persons or property 
 coming within its provisions, it makes no difference in regard to its charac- 
 ter or validity, whether it will be likely to reach one case or ten thousand. 
 A statute requiring powder-mills to be built remote from the villages or 
 highways, or to be separated from the adjoining lands by any such muni- 
 ment as may be requisite to afford security to others' property or business, 
 would probably be a valid law if there were but one powder-mill in the 
 State, or none at all, and notwithstanding the whole expense of the protec- 
 tion should be imposed upon the proprietor of the dangerous business. 
 And even where the state legislature have created a corporation for manu- 
 
46 POWER OF LEGISLATURE OVER COMPANY. 
 
 It ■would not be competent for the legislature to 
 make the company liable for any injury which had 
 already occurred and for which when it occurred the 
 company was not liable. An act imposing a general 
 liability for injuries not previously actionable^ would 
 be construed to be prospective in its operation. 1 
 
 facturing powder at a given point, at the time remote from inhabitants, if 
 in process of time dwellings approach the locality, so as to render the fur- 
 ther pursuit of the business at that point destructive to the interests of 
 others, it may be required to be suspended, or removed, or secured from do- 
 ing harm, at the sole expense of such corporation. This very point is in 
 effect, decided in regard to Trinity churchyard, which is a royal grant for 
 interment securing fees to the proprietors ; in the case of Coates v. The City 
 of New York, "1 Cowen, 604 ; and in regard to The Presbyterian Churchyard, 
 in their case v. The City of New York, 5 Cowen, 638. 
 
 " So, too, a statute requiring division fences, between adjoining proprie- 
 tors, to be built of a given height or quality, although differing from the 
 former law, would bind natural persons, and equally corporations. But 
 a statute requiring land owners to build all their fences of a given 
 quality or height, would no doubt be invalid, as an unwarrantable 
 interference with matters of exclusive private concern. But the farm- 
 crossings upon a railway are by no means of this character. They 
 are division fences between adjoining occupants, to all intents. In addi- 
 tion to this, they are the safeguards which one person, in the exercise of 
 a dangerous business ib required to maintain, in order to prevent the lia- 
 bility to injure his neighbor. This is a control by legislative action, coming 
 within the obligation of the maxim, Sie utere tuo, and which has always 
 been exercised in this manner in all free States, in regard to those whose 
 business is dangerous and destructive to other persons' property or business. 
 Slaughter-houses, powder-mills or houses for keeping powder, unhealthy 
 manufacture, the keeping of wild animals, and even domestic animals dan- 
 gerous to persons or property, have always been regarded as under the con- 
 trol of the legislature. It seems incredible how any doubt should have 
 arisen upon the point now before the Court. And it would seem it could 
 not, except from some undefined apprehension, which seems to have pre- 
 vailed to a considerable extent, that a corporation did possess Borne more 
 exclusive powers and privileges upon the subject of its business, than a nat- 
 ural person in the same business, with equal power to pursue and accom- 
 plish it; which, I trust, has been sufficiently denied." 
 
 1 Girtman v. Central R. E., 1 Geo., 173. 
 
TAXATION OF EAILEOAD COMPANIES. 47 
 
 CHAPTER IV. 
 
 TAXATION OF RAILROAD COMPANIES. 
 
 The property of a railroad company, like that of 
 individuals or other corporations, may be subjected 
 to taxation for the support of government. The 
 imposition of taxes on the company or its exemp- 
 tion therefrom and the regulation of the mode and 
 rules of assessing them is, except as restricted by the 
 state constitution, a proper legislative function. The 
 subject of the present chapter naturally follows the 
 last, as involving the power of the legislature over 
 railroad companies. 
 
 Pebmanent Exemption eeom Taxation, by 
 Geant. — It is competent for the legislature, as 
 already stated, in the absence of constitutional re- 
 strictions, to grant to a company, in its charter, ex- 
 emption from future taxation, so as to disable the 
 legislature thereafter from taxing its property and 
 franchises. It has also been seen, that this aban- 
 donment of the power to tax the company is only 
 to be effected by clear and distinct terms. 1 
 
 The mere payment of a bonus, prescribed by the 
 charter, may not exempt the company from future 
 
 1 Ante, ch. ii. p. 12; cb. iii. p. 35. 
 
48 TAXATION OF EAILEOAD COMPANIES. 
 
 taxation. 1 The exemption of the corporation in its 
 charter from taxation, is held to exempt also the 
 stockholder from taxation on his individual stock. 2 
 It will, however, be construed as confined to such 
 works only as are necessary for the purposes of the 
 company. 
 
 In New Jersey, where a specific tax is by the char- 
 ter imposed upon the capital stock and the company 
 exempted from further taxation, the exemption cov- 
 ers only such real estate and property as are reason- 
 ably necessary for its purposes, and not such as are 
 merely convenient and not necessary. Thus, depots, 
 car-houses, water-tanks, shops for repairing engines, 
 houses for switch and bridge-tenders, coal and wood 
 yards for fuel for the locomotives, are exempted; 
 but lands for dwellings for employes, for car or loco- 
 motive factories, coal mines and other property held 
 for profit, are liable to taxation. 8 
 
 In Vermont it has been held that the exemption 
 from taxation of the stock, property and effects of 
 the Vermont Central Kailroad Company by the 
 charter, extends to all the land in the occupancy 
 of the company which it was enabled to take under 
 the compulsory powers conferred in its charter, and 
 all the erections thereon which were reasonably 
 
 1 Baltimore v. Baltimore and Ohio E. R. Co., 6 Gill, 288 ; If. Y. and Erie 
 R. R. Co. o. Sabin, 26 Penn. State, 242. But see Gordon v. Appeal Tax 
 Court, 3 How. 133. Aliter, if the exemption is distinctly declared; State «. 
 Berry, 2 Harrison, 80; Camden and Amboy R. R. Co. v. HUlegas, 3 id. 11; 
 Same v. Commissioners, 3 id. *ll. 
 
 ' State v. Branin, 3 Zabriskie, 484. 
 
 * Gardner v. State, 1 Zabris. 557; State v. Mansfield, 3 id. 510- State v. 
 Newark, 1 Dutcher, 815. 
 
TAXATION OF RAILROAD COMPANIES. 49 
 
 necessary for its purposes ; that this included the 
 roadway and all erections thereon, connected with 
 the company's business, which were reasonably ne- 
 cessary for such purposes ; and also such erections 
 as station-houses, although not within the limits of 
 the roadway, and probably some others; station- 
 houses being the only erections whose exemption 
 was in question. 1 
 
 Temporary Exemption by Statute. — The legis- 
 lature, where there is no grant of exemption from 
 taxation in the charter, unless restricted by the state 
 constitution may exempt the company for the time 
 being. If this be done expressly, the company is 
 clearly relieved from the burden. The exemption 
 may, however, be made by implication, and is then 
 a question for judicial construction. 
 
 Constructive Exemption from Taxation. — An 
 exemption may be implied, where the company 
 would otherwise be subjected to double taxation, 
 which was manifestly against the intention of the 
 legislature. Thus, where it has exercised its taxing 
 power by taxing all the property of the company in 
 a particular manner and by a special provision in 
 one of its acts, and has intimated no design to sub- 
 ject it to further burdens, the property of the com- 
 pany will be exempt from taxes imposed by general 
 
 1 Vt. Central R. R. Co. v. Burlington (Supreme Court of Vt., Sept. T, 
 1856). Law Reporter, Jan. 1857, p. 526. 
 
 5 
 
50 TAXATION OF RAILROAD COMPANIES. 
 
 laws. "Where an act of Pennsylvania granting privi- 
 leges to the New York and Erie Kailroad Company 
 imposed a tax of ten thousand dollars per annum 
 on the company, together with such further rate of 
 taxation on its stock to an amount equal to the cost 
 of construction of that part of the road situated in 
 the State, as similar property therein was subject to, 
 it was held that the machine-shops, foundries, freight 
 and passenger houses of the company which were 
 used to carry on the business of the road, and the 
 expenses of whose erection was charged to the cost of 
 construction, were not subject to taxation for state 
 and county purposes under general laws. 1 
 
 The character of railroad companies as public 
 works has been held in some States to effect a con- 
 structive exemption of such property from taxation 
 as is immediately necessary for their purposes. In 
 Massachusetts they are not liable to be taxed for 
 land included in their location, nor for buildings 
 and structures thereon erected by them which are 
 reasonably incident to the support of the road, or 
 to its proper and convenient use for the carriage of 
 passengers and the transportation of commodities, 
 such as passengers, car-houses, depots for the accom- 
 modation of passengers, and warehouses for the con- 
 venient reception, preservation, and delivery of mer- 
 chandise carried on the road ; but if any part of the 
 land within the location is used for and appropriated 
 to purposes not incident to the proper construction, 
 maintenance, and management of the railroad, or to 
 
 1 New York and Erie R. R. Co. v. Sabin, 26 Penn. State, 242. 
 
TAXATION OF RAILROAD COMPANIES. 51 
 
 the use of it by the corporation, as a carrier of pas- 
 sengers and goods, or if it acquires by purchase 
 other land outside of its location not authorized to 
 be condemned, — in either case such real estate will 
 be subject to taxation. 1 
 
 1 "Worcester v. Western R. R. Corp., 4 Met. 664, Shaw, C. J. : " From this 
 view of the various provisions of the law, by which the rights and duties of 
 the Western Railroad Corporation are regulated, it is manifest that the 
 establishment of that great thoroughfare is regarded as a public work, 
 established by public authority, intended for the public use and benefit, the 
 use of which is secured to the whole community, and constitutes therefore, 
 like a canal, turnpike, or highway, a public easement. The only principle 
 on which the legislature could have authorized the taking of private prop- 
 erty for its construction, without the owner's consent, is that it was for the 
 public use. Such has been held to be the character of a turnpike corpora- 
 tion, although the capital is there advanced by the shareholders, and the 
 income goes to their benefit. Commonwealth v. Wilkinson, 16 Pick. 175. It 
 is true that the real and personal property necessary to the establishment 
 and management of the railroad, is vested in the corporation, but it is in 
 trust for the public. The company have not the general power of disposal, 
 incident to the absolute right of property : they are obliged to use it in a 
 particular manner, and for the accomplishment of a well-defined public 
 object; they are required to render frequent accounts of their management 
 of this property to the agents of the public ; and they are bound ultimately 
 to surrender it to the public at a price and upon terms established. 
 
 " Treating the railroad, then, as a public easement, the works created by 
 the corporation as public works intended for public use, we consider it well 
 established that to some extent at least, the works necessarily incident to 
 such public easement are public works, and as such exempted from taxation. 
 Such we believe has been the uniform practice in regard to bridges, turn- 
 pikes, and highways, and their incidents ; and also in regard to other public 
 buildings and structures of a like kind, — as state-houses, forts and arsenals, 
 court-houses, jails, churches, town-houses, school-houses, and generally to 
 houses appropriated specially to public uses. Proprietors of Meeting House 
 in Lowell v. City of Lowell, 1 Met. 538. 
 
 " The general principle is not denied in the present case ; but the question 
 is, as to the extent and the limits of this exemption from taxation. This 
 limit, we think, is to be ascertained by considering the extent of the public 
 easement intended to be acquired, secured, and maintained, and the franchise 
 granted to the proprietors, to enable them to accomplish the proposed end. 
 
 " By the act the Western Railroad Corporation are not only to construct 
 and maintain a road on which carriages may run, but also to provide for the 
 
52 TAXATION OF KAILROAD COMPANIES. 
 
 The same constructive exemption, with the same 
 limitation, is adopted in Pennsylvania ; where such 
 property and such only as is appurtenant and indis- 
 
 transportation of persons, goods, and merchandise on such railroad. Such 
 transportation of persons and goods is the object to be accomplished; and 
 for this purpose they may hold land, materials, engines, cars, and other 
 things. Articles so held are appropriated to public use, as incident and 
 necessary to the object to be accomplished. But in regard to the quantity 
 of land to be thus taken and held, the power is not unlimited, because its 
 extent is regulated by the act of incorporation, by which the franchise is 
 granted. The provision in the first section is this : ' And for this purpose, 
 the said corporation are authorized to lay out their road not exceeding five 
 rods wide, through the whole length ; and for the purpose of cuttings, 
 embankments, and procuring stone and gravel, may take as much more land 
 as may be necessary for the proper construction and security of said road.' 
 To the extent of the five rods, it appears to us the legislature intended that 
 the franchise of this corporation should extend, for any and all purposes 
 incident to the object of its creation. It was contended in argument, that 
 their franchise for public purposes extended only to the use of this strip of 
 land as a way, and that if they had occasion for buildings and store-houses, 
 as incident to their operations as carriers of persons and merchandise, they 
 were to be regarded in their latter capacity, as carrying on a distinct busi- 
 ness for their own profit, and therefore that such buildings were not to come 
 under the same franchise. But no such limitation is contained in the act 
 of incorporation, and none such results from the nature of its provisions. 
 The establishment of the rail track, and the maintenance of engines and 
 cars for the transportation of persons and goods, are all combined together, 
 as one public object to be attained, and the privileges incident to the one 
 are incident to the other. No doubt, in practice the main use of the strip of 
 land of five rods in width in the greater part of its extent, will be for sus- 
 taining the track for the trains to run over. But such restriction of its UBe 
 is not found in the act ; and therefore when the corporation have occasion to 
 use any part of such strip of five rods for any of the purposes incident to 
 their creation, it is within their franchise, and, being used to promote the 
 purposes contemplated by the act, it is exempted from taxation as property 
 appropriated to public use. This is the exteut to which they are authorized 
 to take land without the consent of the owner, and this therefore we think 
 is the extent to which the law regards the land as appropriated to 
 public use. 
 
 " But in addition to the power of taking lands for the construction and 
 use of a railroad, the corporation are vested with the power of purchasing 
 lands. The main object of granting this authority, we think, was to enable 
 the corporation to enter into agreements with private proprietors for such 
 
TAXATION OF RAILROAD COMPANIES. 53 
 
 pensable to the construction and preparation of the 
 railroad for use, is exempted, while such as is de- 
 signed merely for its convenience and only necessary 
 for the increase of its business and the making of 
 profits, is not exempted. Therefore, water-stations 
 and depots, and among the latter, offices, oil-houses 
 and places to hold cars, and such buildings and 
 places as may fairly be deemed indispensable to 
 the construction of the road, are not liable to taxa- 
 tion ; while warehouses, coal-lots, coal-shutes, ma- 
 chine-shops, wood-yards, are thus liable. 1 
 
 lands as they might want to construct their road upon, so as not to be com- 
 pelled to take it against the will of the owner, under the provisions of the 
 act. But though this was the leading purpose, the authority was not limited 
 to that. It was general in its terms, and authorized the corporation, by pur- 
 chase to acquire a title to land beyond the limit of their location, which 
 might be convenient though not necessary to the accomplishment of their 
 enterprise. But if the corporation have occasion thus to acquire lands by 
 purchase and erect buildings beyond their limits of five rods (if not necessary, 
 under another provision of the act, for obtaining materials for deep cuts or 
 embankments requiring greater width), such buildings or other real estate 
 will not be considered as necessarily incident to the railroad and its objects, 
 and therefore will not be exempted from taxation. 
 
 "So if any part of the lands lying within the prescribed limits of five 
 rods in width, should be used and appropriated to purposes not incident to 
 the proper construction, maintenance, and management of the railroad, or to 
 the use of it by the corporation, as carriers of passengers and goods, we are 
 of opinion that the estate thus used and appropriated, would be liable to 
 taxation, like other real estate not exempted. 
 
 " The court are, therefore, of opinion that this railroad corporation are 
 not liable to taxation for the land of the width of five rods, located for the 
 road, nor for any buildings or structures erected thereon, so that they be 
 reasonably incident to the support of the railroad, or to its proper and con- 
 venient use for the carriage of passengers and the transportation of com- 
 modities ; and that this includes engine and ear houses, depots for the 
 accommodation of passengers, and warehouses for the convenient reception, 
 preservation, and delivery of merchandise, and all goods and articles carried 
 on the road." 
 
 1 Railroad v. Berks County, 6 Barr, 70. See Permanent Bridge v. Frailey, 
 
54 TAXATION OF RAILROAD COMPANIES. 
 
 In Maine, where the capital stock of a company 
 was declared personal estate by the charter, it was 
 held that the real estate owned and nsed by the 
 company, either as a track or as a depot, was not 
 subject to taxation otherwise than by taxing the 
 interest of the shareholder in the town where he 
 resides, unless the legislature should otherwise spe- 
 cifically prescribe. 1 
 
 In other jurisdictions, the property of the company 
 has been held liable to taxation, unless specially ex- 
 empted. 2 
 
 In Rhode Island, where the general law declares 
 that " no property whatsoever, of any description, 
 not ceded or belonging to the United States, shall, 
 on any pretense whatever, be deemed to be ex- 
 empted from taxes," no constructive exemption of 
 railroad companies is admitted, and the easement 
 of the company as well as its rails, sleepers, and 
 bridges, are subject to taxation. 8 
 
 Rule of Assessing Taxes on Railroad Com- 
 panies. — In New York, the property of railroad 
 companies is subject to taxation when not specially 
 
 13 S & R, 422 ; Lehigh Coal and Navigation Co. v. Northampton County, 8 
 W. & S., 334; Schuylkill Kav. Co. v. Berks County, 11 Penn. State, 202; 
 Wayne County v. Delaware and Hudson Canal Co., 16 id. 351. 
 
 1 Bangor and Piscataquis B. R. Co. v. Harris, 21 Maine, 533. See Mohawk 
 and Hudson R. R. R. Co. v. Clute, 4 Paige, 884, where it is held that the clause 
 declaring the stock of the company to be personal estate, does not change the 
 character of the property held by the company in ita corporate capacity. 
 
 2 Phil. Wil. and Baltimore R. R. Co. v . Bayless, 2 Gill, 355 ; Louisville and 
 Portland Canal Co. v. Commonwealth, 1 B. Monroe, 160 ; 111. Central R. R. 
 Co. v. County of M'Lean, IT 111. 296. See Regina v. Trustees of Birkenhead 
 Docks, 14 Eng. L. and Eq., 128. 
 
 3 Providence and Worcester R. R. Co. «. Wright, 2 R. Island, 459. 
 
TAXATION OF RAILROAD COMPANIES. 55 
 
 exempted. The land and fixtures, necessary for the 
 road, are taxable in the towns or wards where they 
 are situated, at the actual value at the time of assess- 
 ment. So much of the capital stock as remains 
 after deducting all the real estate at cost, including 
 the railroad, is taxable as personal estate in the town 
 or ward where the company has its principal office 
 or place of business. 1 The real estate is to be as- 
 sessed at the actual value of that part only which 
 lies within the town where it is assessed, detached 
 from the remainder of the road, and without refer- 
 ence to the income of the whole, or whether the 
 stock is above or below par, or the business of the 
 road productive or not, and should be appraised in 
 the same manner as the adjacent lands belonging to 
 individuals, and without reference to other parts of 
 the road. 2 
 
 In Illinois, that portion of the railroad track which 
 lies within a county, is taxable therein as real estate, 
 and the valuation must be of that specific part situ- 
 ated in the county, without reference to the value of 
 the whole ; and the personal property of the com- 
 pany is taxable where it has its principal office or 
 place of business. 8 
 
 1 Mohawk and Hudson R. R. Co. v. Clute, 4 Paige, 384 ; People v. Super- 
 visors of Niagara, 4 Hill, 20. 
 
 5 Albany and Schenectady R. R. Co. v. Osborn, 12 Barb. 223 ; Albany 
 and W. Stoekbridge R. R. Co. v. Canaan, 1 6 id. 244. In Paine v. Wright and 
 Indianapolis and Bellefontaine R. R. Co., 6 M'Lean, 395, it is said by M'Lean, 
 J., that a tax on railroad companies can be just and equal only by taxing 
 their profits. As to the method and rules of taxing railway companies in 
 England, see Regina v. London and S. W. R. Co., 1 Ad. <fe EL, N. S., 558 ; 
 Regina v. Grand Junction R. Co., 4 id. 18 ; Regina v. London, <&c, R. Co., 3 
 Eng. L. and Eq. 329 ; 1 Am. Rail. Cas. pp. 354, 355, notes. 
 
 8 Sangamon and Morgan R. R. Co. v. County of Morgan, 14 111. 163. 
 
56 CREATION OF CAPITAL 
 
 CHAPTEE V. 
 
 CREATION OF CAPITAL STOCK BY SUBSCRIPTIONS. 
 
 The capital stock of a railroad company is derived 
 from the contributions of individuals who agree to 
 take a certain proportion thereof, the proportion 
 itself being designated by shares. The individuals 
 subscribing for the stock, in the mode admitted by 
 the charter, become the stockholders of the company. 
 The amount of the entire stock, is, in some cases, 
 fixed by the charter, and in others left, with some 
 limitations, to be fixed by the stockholders them- 
 selves. The first question, then, is, What constitutes 
 an agreement to take stock in a railroad company ? 
 
 What Makes a Subscriber. — The assent of an 
 individual to take shares in the stock of the com- 
 pany — and this assent is essential to his becoming a 
 stockholder — is ordinarily manifested by his entering 
 his name on its books, under an appropriate formula, 
 with the number of shares which he agrees to take 
 placed opposite to his name. But his assent may be 
 manifested in other modes, provided no special one 
 is required by the charter, and it is so made as to 
 entitle him to the privileges of a stockholder on 
 making the proper payments. Thus, where a party 
 signed a proxy with others, in which they were de- 
 scribed "as being stockholders, and holding the 
 
STOCK BY SUBSCRIPTIONS. 57 
 
 several shares opposite our names," and ten shares 
 were placed by him opposite to his name, the proxy- 
 authorizing the person holding it to represent the 
 stock at meetings of the company, this was held suf- 
 ficient evidence that he was a stockholder, although 
 he had not signed the original books of subscription 
 belonging to the company. 1 So, where a party had 
 received from a director a book to procure subscrip- 
 tions to the stock of the company, which contained 
 an appropriate caption for that purpose, and sub- 
 scribed his own name therein, besides procuring the 
 names of others for the purpose, afterwards stating 
 to an agent of the company that he had taken the 
 shares, and the clerk having entered his name as 
 a stockholder on the books of -the company without 
 his express assent, this was held to be competent evi- 
 dence to prove that he was a stockholder, although 
 he retained in his possession the book in which he 
 subscribed his name, and never delivered it to the 
 company, and had not accepted from it a certificate 
 of his shares. 2 A subscription to the articles of as- 
 sociation of a plank-road company, is held in New 
 
 1 Greenville and Columbia R. R. Co. v. Smith, 6 Rich. (S. C.) 91. 
 
 2 N. H. Central R. R. v. Johnson, 10 Foster, 390, 401, Eastman J. : " It 
 is said that the defendant was not a shareholder, and on that account was 
 not liable to be assessed. But he subscribed the book, agreeing to take the 
 shares. He stated that the amount upon the book that could be relied upon 
 was $5,600, and his name was of the number that went to make up this sum. 
 His name was entered on the records of the corporation, and he subsequently 
 stated that he had taken five shares. The treasurer also offered him his cer- 
 tificate for the shares. This evidence was competent to show him a stock- 
 holder so far as to make him liable for assessments. Upon this ground, and 
 were there no other objections to the assessments, we think the defendant 
 could not relieve himself from liability. Chester Glass Company v. Dewey, 
 16 Mass. Rep. 94-100." 
 
58 CREATION OP CAPITAL 
 
 York, under the act for the incorporation of plank- 
 road companies, not in dispensable to membership ; 
 but it may be contained in a separate paper used for 
 obtaining subscriptions to the stock and signed by- 
 only a part of the stockholders, the rest signing other 
 similar papers. It was considered that a subscription 
 to any legal and valid instrument, by which a party- 
 engages to become a member of the company when 
 organized, and to pay a given sum which is to be a 
 part of the capital stock, followed by the acceptance 
 of a certificate for the stock, will make such sub- 
 scriber a member of the company. 1 But, although 
 the assent to become a shareholder may in general 
 be manifested in different ways, yet if the incor- 
 porating act, either expressly or by fair construction, 
 prescribes an exclusive mode for becoming one, as 
 by entering his name in the books of the company 
 or signing articles of association, a person does not 
 subject himself to the liabilities or entitle himself to 
 the privileges of a shareholder until he has complied 
 with the prescribed forms. 2 Such is the construction 
 placed by the Supreme Court of New York on the 
 general railroad act of that State, enacted in 1848. 8 
 The delivery of a certificate or the formal allotment 
 of shares to a party, is not, in general, necessary to 
 hold him as a subscriber. 4 
 
 1 Hamilton and Deansville Plank-Road Co. v. Rice, 7 Barb. 157. 
 
 2 Charlotte and S. Carolina R. R. Co. v. Blakely, 3 Strob. 245. But see 
 Greenville and Columbia R. R. Co. v. Smith, 6 Rich. 91. 
 
 3 Troy and Boston R. R. Co. v. Tibbetts, 18 Barb. 297 ; Troy & Boston 
 R. Co. o. Warren, id. 310. 
 
 4 Danbury and Norwalk R. R. Co. o. Wilson, 22 Conn. 453 ; N. H. Cen- 
 tral R. R. v. Johnson, 10 Foster, 390. 
 
STOCK BY SUBSCRIPTIONS. 59 
 
 A subscriber cannot set up that the paper signed 
 by him is an escrow, where he delivers it to a per- 
 son who is acting for the company in procuring 
 shareholders. The paper will not be considered an 
 escrow, to become effectual on the performance of a 
 certain condition, where instead of being delivered 
 to a third person as such, it is delivered to one of 
 the commissioners appointed to receive subscriptions 
 for the company. 1 
 
 The subscription being a promise, it is a familiar 
 requirement of the common law that there must 
 be a party in esse, competent to receive it, or it 
 will not bind the maker. It has, therefore, been 
 held that no action can be sustained by a company 
 against a party who, before it was incorporated, 
 signed with others a paper agreeing to take a cer- 
 tain amount of stock in it, and after its incorpora- 
 tion refused to do so, there being no act of his sub- 
 sequent to the incorporation in affirmance of his 
 former promise. 2 These decisions are, however, op- 
 posed by others, which affirm the liability of the 
 subscriber under such circumstances. 8 
 
 A promise to take shares, according to the best 
 considered authorities, when made after the act of 
 
 1 Wright v. Shelby R. R. Co., 16 B. Monroe, 4. See N. H. Central R. R. 
 ■a. Johnson, 10 N. H., 390, where although the subscriber retained the book 
 in which his name was entered, the book could hardly be considered as an 
 escrow, as he was acting as agent of the company to procure subscribers. 
 
 3 Strasburg R. R. Co. v. Echternach, 21 Penn. State, 220; Gleaves v. 
 Brick Church Turnpike Co., 1 Sneed, 491. 
 
 8 Kidwelly Canal Co. v. Raby, 2 Price Exch., 93 ; Midland Great West- 
 ern R. Co. v. Gordon, 16 M. & W., 804 ; Chester Glass Co. v. Dewey, 16 
 Mass. 94 ; Cross v. Pinckneyville Mill Co., 17 111. 54 ; Selma and Tenn. R. R. 
 Co. v. Tipton, 6 Ala., 787 ; See Thompson v. Page, 1 Met. 565 ; Ives v. Ster- 
 ling, 6 id. 310. 
 
60 CREATION OF CAPITAL 
 
 incorporation has passed and been accepted, and 
 with reference to the future organization of the com- 
 pany, which is not organized at the time it is made, 
 is binding on the subscriber. 1 Even the acceptance 
 of the charter by the corporators who applied for 
 the same, may be presumed, it being passed for their 
 benefit, so as upon its being granted to bring the 
 corporation into existence and enable it to receive 
 promises made for its benefit. 2 Although the cor- 
 poration were not to be considered m esse until it had 
 been organized, a party who had subscribed for shares 
 before its organization might render himself liable 
 as a shareholder by acts ratifying his subscription, 
 after the organization was effected ; as, if he paid to 
 the company certain assessments upon them, and 
 promised to pay the remaining sums to become due 
 on the shares which he had promised to take. 8 So 
 also, if he acted as a stockholder in the meetings of 
 the company, and was acknowledged as such by it. 4 
 
 1 Gleaves v. Brick Church Turnpike Co., 1 Sneed, 491 ; Hartford and New 
 Haven R. E. Co. v. Kennedy, 12 Conn. 499 ; Danbury and Norwalk R. K. Co. 
 v. Wilson, 22 id. 453 ; Covington Plank-Road Co. v. Moore, 3 Ind. 510 ; Ham- 
 ilton and Dansville Plank-Road Co. v. Rice, 7 Barb. 15Y. But see Charlotte 
 and South Carolina R. R. Co. v. Blakely, 3 Strob. 245. , 
 
 * Rathbone v. Tioga Nav. Co., 2 W. & S. 74. 
 
 8 Kennebec and Portland R. R. Co. v. Palmer, 84 Maine, 366. 
 
 4 Lexington and W. Cambridge R. R. Co. v. Chandler, 13 Met. 371 ; Chaffin 
 v. Cummings, 37 Maine, 76. Shepley, C. J.: "A person, who before its 
 organization subscribes for stock and afterwards claims to be a stockholder, 
 and acts as one in meetings of the corporation, and whose claims are admitted 
 by it by allowing him to act as such, and by receiving payment for his stock, 
 must be regarded as the owner of the stock thus subscribed for and acted 
 upon. Chester Glass Co. v. Dewey, 16 Mass. 94 ; Spear v. Crawford, 14 
 Wend. 20 ; Kidwelly Canal Co. v. Raby, 2 Price Ex. R., 93 ; Kennebec and 
 Portland R. R. Co. v. Palmer, 34 Maine, 366. To make him an owner, it is 
 not necessary that he shall have paid for his stock. A corporation may give 
 credit for its stock, as well as for any other property sold by it. Nor is it 
 
STOCK BY SUBSCRIPTIONS. 61 
 
 The special provisions of the act of incorporation 
 or of a general law applicable to the corporation, 
 may make a party liable as a shareholder on his 
 performance of certain acts, who could not be so 
 liable at common law, and on the other hand they 
 may be such that, although under certain circum- 
 stances he would be liable as such at common law, 
 he cannot be held under the statute. The provisions 
 of the act of incorporation must, therefore, be 
 examined in each case, to determine the requisites 
 for liability as a subscriber to the stock of the 
 company, and the question whether he is liable or 
 not for a subscription made before the company 
 was organized. 
 
 "Where a party subscribed for shares, and gave his 
 note for the first installment to commissioners named, 
 in the act of incorporation, for receiving subscrip- 
 tions, who when a thousand shares had been sub- 
 scribed were to call a meeting of the subscribers 
 for the choice of directors to whom they were to 
 hand over the books of the company, it was held 
 that the provision in the charter that each sub- 
 scriber should be a member of the company, and 
 the further fact that others had subscribed for 
 stock previous to the subscription in question, 
 were sufficient to show that the corporation was in 
 
 necessary that certificates should have been issued. These only constitute 
 proof of property, which may exist without them. When the corporation 
 has agreed that a person shall be entitled to a certain number of shares in its 
 capital, to be paid for in a manner agreed upon, and that person has agreed 
 to take and pay for them accordingly, he becomes their owner by a valid 
 contract, made upon a valuable consideration." 
 
62 CREATION OF CAPITAL 
 
 esse at the time the note was made, and so capable 
 of taking the promise through the commissioners, 
 notwithstanding the right to organize was made to 
 depend on certain conditions, not fully complied 
 with till after the note was executed. 1 
 
 ' Vermont Central R. R. Co. o. Clayes, 21 Vt. 30, Bennet, J. : "The more 
 important question would seem to be, Can the present plaintiffs maintain an 
 action on this note? It is said, the corporation was not in esse at the time 
 of making the promise. If this be so, it would be difficult to get over the 
 objection. But the first section of the plaintiffs' act of incorporation 
 declares in express terms, that such persons as shall thereafter become stock- 
 holders of said company, are constituted a body corporate, &c. Though it 
 is necessary that every corporation should have corporators, yet we find by 
 the fourth section of the act, that every subscriber for stock becomes per se 
 a corporator ; and by the subscription paper, which is made a part of the 
 case, it appears that there were several subscribers for stock prior to the 
 defendant's becoming one. Each subscriber for stock per se becomes a 
 member of the corporation, and all as fast aB they subscribe become cor- 
 porators under the provisions of the act. To justify an organization of the 
 corporation, certain things are made necessary ; but in the eye of the law 
 this corporation should be regarded in esse before they have the right to 
 organize. It is the statute which creates the subscribers for stock a corpora- 
 tion, and not their organizing under it. It is usual, in acts of incorporation 
 to designate the names of certain individuals as corporators ; but that was 
 not done in this instance. As the act incorporates all that shall thereafter 
 become stockholders, it may be taken, for the purpose of giving vitality 
 to the charter of incorporation, that the defendant as well as other sub- 
 scribers for stock became such on the day the act of incorporation passed, 
 although in point of fact they did not subscribe until some time subse- 
 quent. See Chester Glass Co. v. Dewey, 16 Mass., 94. If this be not so, the 
 charter must, at all events have vitality from the time individuals 
 became stockholders in point of fact by an actual subscription; and 
 this is sufficient for present purposes." In Lexington and West Cam- 
 bridge R. R. Co. v. Chandler, 13 Met. 811, it waB said by Shaw, C J., 
 delivering the opinion of the court, — "Evidence was offered tending to 
 show that the defendant signed a subscription paper for five shares before 
 the organization of the company ; that he was present at the meeting of the 
 stockholders for the organization of the corporation, wrote and distributed 
 votes, and voted for directors. The defendant objected to the subscription 
 paper as evidence, on the ground that no valid or binding promise could be 
 made to the corporation before its organization ; and that parol evidence 
 
STOCK BY SUBSCRIPTIONS. 63 
 
 It has been decided by the Supreme Court of 
 New York, that under the general railroad act of 
 1848, the mere signing by a party of a preliminary 
 paper, previous to the organization of the company, 
 by which he agrees to take the amount of capital 
 stock placed against his name, does not make him 
 liable on the subscription ; it not being one of the 
 modes prescribed by the act for becoming a cor- 
 porator. 1 
 
 Defences of Subscribers to the Capital 
 Stock. — The defences of a subscriber to proceedings 
 of the company for enforcing the promise contained 
 in his subscription, rest, in general, upon its non-per- 
 formance of the conditions precedent, upon which 
 
 was not sufficient to show that the defendant had made himself a sub- 
 scriber to the corporation for any shares, or that he became a member of the 
 corporation by the transactions stated. This objection was overruled, and 
 the subscription paper and acts of the defendant were admitted as evidence 
 of a satisfaction of his prior subscription. 
 
 " We think this decision was correct. The action is not founded on a 
 supposed common-law obligation, arising from a promise to take and pay for 
 a number of shares named ; but it is founded on a statute liability created 
 by the act of incorporation, binding upon all its members. The question is 
 not, whether this subscription was a good promise at common law made to 
 a proper party, and on a good consideration ; but whether he was a member 
 of the corporation and a holder of five shares. And for this purpose the 
 evidence was competent. He may be proved to be a member of the cor- 
 poration, by being a petitioner for the act, or being within the description of 
 persons incorporated, by acting under it and assisting to carry it into execu- 
 tion. Ellis v. Marshall, 2 Mass. 269. The subscription paper, though made 
 before the organization of the corporation, was made after the act of incor- 
 poration was passed, and was prima facie proof, competent and proper to go 
 to the jury, both to prove the fact of his being a member of the corporation, 
 and of the number of shares held by him, and, in the absence of any counter- 
 vailing proof, decisive.'' 
 
 1 Troy and Boston R. R. Co. v. Tibbits, 18 Barb. 297 ; Same v. Warren, 
 id. 310. 
 
64 CREATION OP CAPITAL 
 
 his liability for assessments was to arise, or upon its 
 breach of its contract with him, express or implied, 
 in the misappropriation of the funds to which he 
 was to contribute. 
 
 Non-Payment op the Fiest Installment. — A 
 frequent provision in acts of incorporation is, that 
 the subscriber to the stock shall pay a certain per 
 cent., ordinarily five or ten, on the same at the time 
 the subscription is made. The failure of the sub- 
 scriber to comply with this requirement, has been 
 held in some cases to exonerate him from liability 
 for subsequent calls. The payment of the installment 
 required to be made in cash, was regarded as a 
 condition precedent to the organization of the 
 corporation, or even to its existence. The company 
 had no power to take the subscription without 
 the cash payment, and having taken it, was not 
 bound to allow the subscriber the shares for which 
 he subscribed ; and there was no mutuality of obli- 
 gation which would bind him. 1 This defence is 
 manifestly unconscionable, enabling a party to take 
 advantage of his own wrong. It is, therefore, dis- 
 countenanced by the courts, and only admitted 
 where.it is the clear intention of the act of incor- 
 poration that the payment of the cash installment 
 shall be a condition precedent to the liability of the 
 
 1 Jenkins v. Union Turnpike Co. 1 Caines' Cas. in Error, 80, overruling 
 the Supreme Court in 1 Caines, 381 ; Hibernia Turnpike v. Henderson, 8 S. & 
 R. 219, in which the court were divided ; Crocker v. Crane, 21 Wend. 211 ; 
 Napier v. Poe, 12 Geo., 184 
 
STOCK BY SUBSCRIPTIONS. 65 
 
 subscriber. 1 Thus, in Kentucky it was decided, that 
 although the commissioners might have refused to 
 receive the subscription when made, without pay- 
 ment at the time, yet as they did not reject it, the 
 contract, after the stock had been received by them 
 without the payment, was binding on both sides. It 
 was considered to be the duty of the subscriber to 
 pay the installment when he subscribed, and he was 
 not allowed to take advantage of his own wrong. 2 
 In other States, this defence has been interposed in 
 vain, frequently where there were special circum- 
 stances showing it to be clearly without merits. 
 Thus, where the subscriber has afterwards acted as 
 a stockholder, by attending the meetings of the 
 company and voting in the election of its officers, or 
 on questions of business, he has been held estopped 
 from denying the validity of his subscription. 8 He 
 has been estopped from making this defence where 
 he gave a note for the first installment at the time 
 he subscribed, and afterwards paid it. 4 The subscri- 
 ber has also been held bound by his subscription, 
 where, instead of making the payment required in 
 
 1 Judah v. American Life Ins. Co., 4 Indiana, 333 ; Henry v. Vermillion 
 and Ashland R. R. Co., 17 Ohio, 187 ; Mitchell v. Rome R. R. Co., 17 Geo. 
 688 ; Troy and Rutland R. R. Co. v. Kerr, 17 Barb. 601 ; Ogdensburg, Rome 
 and Clayton R. R. Co. v Frost, 21 id. 541 ; West Chester R. R. Co. v. Hick- 
 man (Supreme Court of Penn.) not yet reported. 
 
 3 Wight v. Shelby R. R. Co., 16 B. Monroe, 5. 
 
 3 Clark v. Monongahela Nav. Co., 10 Watts, 364 ; Erie and Waterford 
 Plank Road Co. o. Brown, 25 Penn. State, 166 ; Greenville and Columbia 
 R. R. Co. v. Woodsides, 5 Rich. 145. 
 
 4 Selma and Tennessee R. R. Co. v, Tipton, 6 Ala, 807 ; Klein v. Alton and 
 Sangamon R. R. Co., 13 111. 514. 
 
66 CREATION OF CAPITAL 
 
 cash, he has given a note for the same, which he has 
 not paid. Thus, where it was provided in the charter 
 that "every person, at the time of subscribing, shall 
 pay to the commissioners five dollars on each share 
 for which he may subscribe, and each subscriber shall 
 be a member of said company," it was decided to be 
 no defence to a suit on a promissory note, that it 
 was given by a subscriber in lieu of a cash payment; 
 as the installment was not required to be paid in 
 specie, and the note having been accepted as money 
 the company could not deny to him the privileges 
 of a corporator. 1 Where the act of incorporation 
 provided that on non-payment of the first install- 
 ment the subscription should be void, the subscri- 
 ber was held liable on a promissory note for the 
 amount ; although without the giving of the note, 
 the company could not have recovered upon the 
 subscription, and the subscriber could not have 
 asserted the privileges of a stockholder. 2 Nor will 
 this defence avail where the subscriber was a com- 
 missioner to procure the stock to be taken and to 
 receive installments ; as in law he received the 
 money when he subscribed for the stock, and it 
 being his official duty to require a cash payment 
 from subscribers, he is not allowed to set up his 
 violation of duty as a bar to a suit for the amount. 8 
 
 1 Vermont Central R. R. Co. v. Clayes, 21 Vt, 30 ; Greenville and Colum- 
 bia R. R. Co. v. Woodsides, 5 Rich. 145. 
 
 ■ M'Rae v. Russell, 12 Iredell, 224. 
 
 3 Ryder v. Alton and Sangamon R. R. Co., 13 111. 516 ; Cross v. Pinck- 
 neyyille Mill Co., IT id. 51 ; Grayble v. York and Gettysburg Turnpike Co., 
 10 S. & R. 269 ; Highland Turnpike Co. o. M'Kean, 11 Johns. 198. 
 
STOCK BY SUBSCRIPTIONS. 67 
 
 Full Number of Shaees not Taken. — It is 
 clear that whatever conditions precedent to the per- 
 sonal liability of the subscriber are imposed in the 
 charter, must be performed before he can be 
 sued for calls upon his shares. If the act of incor- 
 poration fixes the number of shares and amount of 
 capital stock, or requires them to be fixed by the 
 company or its officers, and it is to be inferred from 
 its terms that the subscription for that number and 
 amount, so fixed, is a condition precedent to the 
 right of the corporation to enforce the subscription, 
 the subscriber is not liable for calls to meet its 
 general purposes until the condition has been fulfilled 
 by the taking up of all the shares. His agreement 
 is to pay legal assessments, upon all the shares, 
 which, where such condition is imposed, cannot be 
 made until it is performed. By reducing the amount 
 of the capital stock, the proportion which he is to 
 contribute and the risk of the enterprise may be 
 increased. The mere fixing of the number of shares 
 and the amount of the capital stock by the act of 
 incorporation, or by the action of the company or 
 of its officers, in pursuance of the act, has been held 
 to impose the filling up of the entire stock so fixed 
 as a condition precedent to the liability of the sub- 
 scriber for assessments. This rule is specially en- 
 forced in Maine, New Hampshire and Massachusetts. 1 
 
 1 Salem Mill Dam Corp. v. Eopes, 6 Pick. 23 ; S. C, 9 id. 187 ; Worcester 
 and Nashua K. R. Co. v. Hinds, 8 Cush. 110 ; Stoneham Branch R. R. Co. v. 
 Gould, 2 Gray, 211. Shaw, C. J. : " It is a rule of law too well settled to be now 
 questioned, that when the capital stock and the number of shares are fixed 
 by the act of incorporation, or by any vote or by-law passed conformably to 
 the act of incorporation, no assessment can be lawfully made on the share of 
 
68 CREATION OP CAPITAL 
 
 And if under such a charter any of the subscriptions 
 are on conditions, they cannot be counted in making 
 up the number until the conditions have been per- 
 formed or waived. 1 The amount of the capital 
 stock may be fixed in the agreement of the sub- 
 scribers, and the taking up of the entire amount 
 may then be a condition precedent to their lia- 
 bility, in the same manner as if the amount of 
 the capital stock was fixed by the act of incorpo- 
 ration. 2 But if the taking up of the entire capital 
 stock is not made by the agreement or the act of 
 
 any subscriber until the whole number of shares has been taken. Salem 
 Mill Dam v. Kopes, 6 Pick. 23, and 9 Pick. 187 ; Cabot and West Springfield 
 Bridge v. Chapin, 6 Cush. BO ; Worcester and Nashua Railroad v. Hinds, 8 
 Cush. 110. This is no arbitrary rule; it is founded on a plain dictate of 
 justice, and the strict principles regulating the obligation of contracts. When 
 a man subscribes a share to a stock to consist of one thousand shares, in order 
 to carry on some designated enterprise, he binds himself to pay a thousandth 
 part of the cost of such enterprise. If only five hundred are subscribed, and 
 he can have no assurance which he is bound to accept that the remainder 
 ■will be taken, he would be held, if liable to assessment, to pay a five-hun- 
 dreth part of the cost of the enterprise, besides incurring the risk of an entire 
 failure of the enterprise itself, and the loss of the amount advanced towards 
 it." Oldtown and Lincoln E. K. Co. v. Veazie, 39 Maine, 671 ; Penobscot 
 and Kennebee R. R. Co. v. Dunn, id. 687 ; Littleton Manufacturing Co. v. 
 Parker, 14 N. H., 643 ; N. H. Central R. R. v. Johnson, 10 Foster, 390 ; Con- 
 toocook R. R. Co. v. Barker, 32 If. H., 363. Eastman, J.: "Where the 
 number of shares into which the capital stock of a corporation is divided is 
 fixed by the charter, and that provides that the directors may make equal 
 assessments upon all the shares, no valid assessment can be made against a 
 subscriber for shares until all the shares are taken, unless he in some way 
 waive the provisions of the charter." 
 
 1 Central Turnpike Co. v. Valentine, 10 Pick. 142. 
 
 a Cabot and West Springfield Bridge v. Chapin, 6 Cush. 50 ; Littleton 
 Manufacturing Co. v. Parker, 14 M". H., 543 ; Penobscot and Kennebec R. R. 
 Co. v. Dunn, 39 Maine, 587. Rice, J. : "A subscription to the capital stock 
 of an incorporated company, is a contract between the subscriber and the 
 company. The subscriber may simply agree to take a given amount of stock, 
 and in that event the remedy of the corporation, in case of neglect to pay 
 
STOCK BY SUBSCRIPTIONS. 69 
 
 incorporation a condition precedent to the right of 
 the corporation to recover the calls, either expressly 
 or by implication, the subscriber will be liable for 
 the same, although the full amount has not been 
 taken. 1 
 
 A subscriber may be estopped from setting up 
 this defence by co-operating in acts of the company 
 which cannot be properly done except on the 
 assumption that the subscribers intend to proceed 
 
 assessments, is upon the stock ; or he may agree to take and pay for the stock 
 absolutely, or upon such conditions as he may choose to incorporate into his 
 subscription. Such conditions are ordinarily incorporated into subscriptions 
 for the protection of the subscriber, and to ensure the completion of the enter- 
 prise. Where a subscription is made upon condition that the company shall 
 not be organized, or shall not enter upon the principal object of its organiza- 
 tion, until a given amount of its stock shall be subscribed, such condition is a 
 condition precedent, and the company -will not be authorized to enforce the 
 collection of such subscription until they have complied with such conditions 
 on its part. A person might be willing to become a stockholder in a railroad 
 corporation, which should have four hundred thousand dollars of its stock sub- 
 scribed before its organization, and seven hundred thousand before entering 
 into a contract for building and completing its road, who would be unwilling 
 to subscribe to its stock without restriction. Such a condition would provide 
 for a capital amply sufficient to secure a full preliminary exploration and 
 survey of the route for a road, and ensure the prompt construction of the 
 road. The right of the corporation to assess the stock of the defendant, 
 depended upon the conditions in his subscription. If the company have 
 complied with these conditions, then its right to assess under its charter and 
 by-laws, and in conformity therewith, immediately accrued, and such assess- 
 ments if legally made, may be collected. If the conditions in the subscription 
 had not been performed on the part of the company, then the assessments 
 cannot be collected, and it matters not what may have been the form of the 
 assessments." 
 
 ' Hamilton and Peansville Plank Road Co. v. Rice, 1 Barb. 157 ; Schenec- 
 tady and Saratoga Hank Road Co. v. Thatcher, 1 Kernan, 102 ; Kennebec and 
 Portland R. R. Co. v. Jarvis, 34 Maine, 360 ; Lexington and West Cambridge 
 R. R. Co. v. Chandler, 13 Met. 311 ; Waterford, <fcc, R. Co. ■„. Dalbiac, 4 
 Eng. L. & Eq., 455. See Company, &c, v, Theobald, 1 M. & Mai. 151. 
 
TO CREATION OF CAPITAL 
 
 with the stock partially taken up. 1 But, it has been 
 held in Maine that this requirement in a charter 
 cannot be waived by a subscriber, so as to preclude 
 him from taking advantage of the neglect of the 
 company to comply with it. 2 The legislature having 
 no constitutional power to alter the contract between 
 the company and the subscribers, it has been de- 
 cided that an amendment of the charter, accepted 
 by the company, requiring a less amount of capital 
 stock than that prescribed in the charter, will not 
 have the effect to make a previous subscriber liable, 
 when that less amount only' has been taken. 8 
 
 The records of the company are competent and 
 
 prima facie evidence to prove that the required 
 
 number of shares has been taken. The books of the 
 
 directors, if authorized to act in the premises, are 
 
 competent evidence for that purpose. 4 
 
 Subscriptions Conditional upon the Location. — 
 An agreement is not unfrequently signed by persons 
 interested in a particular locality, by which they 
 promise to take stock in a railroad company pro- 
 vided a particular route is adopted by it. Except 
 in New York, these conditional subscriptions, in the 
 absence of a special prohibition, have been sustained, 
 as authorized, and not in conflict with public policy. 
 They have been enforced in Kentucky, — the agree- 
 
 1 Cabot and West Springfield Bridge v. Chapin, 6 Cush. 53 ; N. H. Cen- 
 tral R. R. v. Johnson, 10 Foster, 407. 
 
 a Oldtown and Lincoln R. R. Co. v. Veazie, 39 Maine, 671. 
 
 3 Id. 
 
 * Penobscot and Kennebec R. R. Co. v. Dunn, 39 Maine, 687 ; Ryder v. 
 Alton and Sangamon R. R. Co. 13 111. 616. 
 
STOCK BY SUBSCRIPTIONS. 11 
 
 ment and not the stock itself being regarded as con- 
 ditional. The parties subscribing to them are not 
 considered stockholders until the company has per- 
 formed the condition upon which the undertaking 
 depends ; and when that is done, they become stock- 
 holders by force of the agreement of the parties, and 
 the subscription becomes absolute. 1 In Indiana and 
 Pennsylvania, promises to pay the company a cer- 
 tain sum on condition that it will adopt a certain 
 route, have been held valid, and enforced after the 
 condition has been performed. 2 They have also been 
 recognized as valid in Massachusetts and Ohio. 8 
 
 In New York, a subscription on condition that 
 the company adopt a certain route, has been held 
 not binding on the subscriber, unless the company 
 agrees at the time to adopt that route, notwithstand- 
 ing it is afterwards adopted by the company, on the 
 ground that the promise is without mutuality and 
 consideration. 4 Such subscriptions have also been 
 
 1 M'Millan u.'Maysville and Lexington R. R. Co. 15 B. Monroe, 218 ; Hen- 
 derson and Nashville R R. Co. u. Leavell, 16 id. 358. 
 
 ' Carlisle v. Terre Haute and Richmond R. R. Co., 6 Indiana 316 ; Fisher 
 v. Evansville and Crawfordsville R. R. Co. 1 id. 40"7 ; Cumberland R. R. Co. 
 v. Baab, 9 Watts, 458 ; Rhey v. Ebensburg and Susquehanna Plank Road Co. 
 27 Penn. State, 261. 
 
 8 Central Turnpike Corp. u. Valentine, 10 Pick. 142 ; Troy and Green- 
 field R. R. Co. v. Newton, 1 Gray, 544 ; Chapman v. Mad River and Lake 
 Erie R. R. Co. 5 Ohio State. See N. H. Central R. R. v. Johnson, 10 Fos- 
 ter, 401. 
 
 ♦ Utica and Schenectady R. R. Co. v. Brinckerhoff, 21 Wend. 139 ; Ma- 
 cedon and Bristol Plank Road Co. u. Snediker, 18 Barb. 31"7. The authority 
 of these decisions may be questioned, as Cooke v. Oxley, 3 T. R. 653, mainly 
 relied on, is now generally discredited. Boston and Maine R. R. v. Bartlett, 
 3 Cush. 224. And see L'Amoreux v. Gould, 3 Selden, 349, where it is laid 
 down that the want of mutuality is a defence only where it leaves one party 
 without an available consideration for his promise, and that there are many 
 
*12 CREATION OF CAPITAL 
 
 held void in that State on the ground that they are 
 not authorized by law, and are against public policy, 
 as tending to work a fraud on those who subscribe 
 absolutely, and to induce such a location of the road 
 as will subserve private interests to the public det- 
 riment. 1 But a subscription on condition that a cer- 
 tain number of shares shall be subscribed within a 
 limited time, has been recognized as valid. 2 
 
 A provision as to the location, so as to be binding 
 on the company and render the subscription condi- 
 tional, must be inserted in the agreement. In the 
 absence of fraud, or mistake of fact, parol evidence 
 is not admissible to make a subscription conditional 
 which on its face is absolute. A subscriber cannot 
 defend a suit for the calls by parol proof that he 
 should not have become a party to the agreement 
 unless he had supposed a particular route would be 
 adopted, where the charter does not prescribe it. 
 He is presumed to know the provisions of the char- 
 ter under which the subscription was taken ; and the 
 representations of a class of officers with whom the 
 power of location is not lodged, will not bind the 
 company. Even the representations of those who 
 have this power are mere matters of opinion, on which 
 he has no right to rely. All such considerations are 
 merged in the written contract by which the parties 
 
 valid contracts not mutually binding when made. See also Conn, and Pass. 
 Rivers R. R. Co. v. Bailey, 24 Vt. 478. 
 
 1 Butternutts v. North, 1 Hill, 518 ; Maeedon and Bristol Plank Road Co. 
 ■u. Snediker, 18 Barb. S17. Contra, Fort Miller and Fort Edward Plank 
 Road Co. v. Payne, 17 id. 5*1$. 
 
 3 Morris Canal and Banking Co. v. Nathan, 2 Hall, 239 ; Fort Miller and 
 Fort Edward Plank Road Co. v. Payne, 17 Barb. 579. 
 
STOCK BY SUBSCRIPTIONS. 73 
 
 are to be governed. 1 The condition, in order to be 
 a part of the subscription, must be inserted at the 
 time of the subscription, and not subsequently, ex- 
 cept with the consent of both parties. 2 
 
 Notwithstanding conditional subscriptions may be 
 admitted, yet private arrangements, not expressed 
 in the subscription, between the agents of the com- 
 pany and a subscriber, by which he is to have pecu- 
 liar privileges not extended to other subscribers, or 
 by which his subscription is not to be collected, be- 
 ing made to induce others to subscribe, are regarded 
 as fraudulent on the other subscribers, and not a de- 
 
 * Wight v. Shelby R. R. Co. 16 B. Monroe, 4 ; Banet v. Alton and San- 
 gamon R. R. Co. 13 111. 509 ; Railsback v. Liberty and Abington Turnpike 
 Co. 2 Indiana, 656 ; Jones v. Milton and Rushville Turnpike Co., 1 id. 547 ; 
 Greenville and Columbia R. R. Co. v. Smith, 6 Rich. 91 ; Kennebec and Port- 
 land R. R. Co. v. Watera, 34 Maine, 369 ; Conn, and Pass. Rivers R. R. Co. v. 
 Bailey, 24 Vt. 465. In Crossman v. Penrose Ferry Bridge Co. 26 Penn. 69, 11, 
 it is said " that, where one is induced to make a subscription to the capital 
 stock of the company by fraudulent representations or false statements of an 
 agent of the company or commissioners appointed to obtain subscriptions, 
 the contract may be avoided by the subscriber ; but a mere promise by the 
 agent to procure stock for the subscriber in another company will not have 
 the effect, nor will a mistaken estimate of the probable cost of the improve- 
 ment." But quaere, as to the position that a false statement, not fraudulent, 
 will avoid the subscription. It was further held in this case, which was the 
 point on which it was decided, that a preliminary injunction by a court of 
 competent jurisdiction, suspending the prosecution of the improvement to 
 erect which the subscription was made, until the further order of the court, 
 will not defeat an action for the recovery of the subscription by the com- 
 pany. The interlocutory order does not establish that the improvement 
 would be unlawful, or that the contract of subscription was illegal. But 
 even upon the supposition that the cause will be ultimately decided against 
 the company, the subscriptions to the capital stock, for aught that appears 
 on the record, should be paid, so that the expenses of the controversy, as well 
 as the charges necessarily attendant upon the organisation of the company, 
 may be borne equally by the stockholders, and the residue of the capital 
 stock divided among them. 
 
 * N. H. Central R. R. v. Johnson, 10 Foster, 390. 
 
74 CREATION OF CAPITAL 
 
 fence to a suit for the whole amount subscribed. It 
 follows, also, that as such private arrangements are of 
 no effect, they will be no defence to suits against other 
 subscribers not interested in them. The subscriptions 
 are enforced as valid, and, therefore, other subscribers 
 cannot complain that false inducements were held 
 out to them. 1 This principle applies where a stock- 
 holder, subsequent to his subscription, has obtained 
 from the officers of the company some special privi- 
 lege, as to the mode of payment, or otherwise ; and 
 an arrangement of that kind will not be respected 
 by the courts, and the company will be allowed to 
 recover the full amount, as provided in the charter. 2 
 Nor, where a subscriber has taken a number of 
 shares, and paid a part of the installments thereon, 
 is an agreement valid as against creditors and other 
 stockholders, by which the amount paid is acknowl- 
 edged by the officers of the company as a full receipt 
 for a less number of shares, whose par value is equal 
 to the amount already paid on the whole number, 
 and he is also released by them from all liability for 
 the remaining shares. This has been affirmed in 
 cases where the corporation, being insolvent, has 
 been put into the management of a receiver, who by 
 a bill in chancery, sought to collect the debts due to 
 the company, and he has been decreed the entire 
 amount due on all the shares. 8 
 
 ' Conn, and Pass. Rivers R. R. Co. v. Bailey, 24 Vt. 465. See White Mts. 
 R. R. Co. v. Eastman (Supreme Ct. of N. H., July T. 1856), 19 Law Rep. 
 (Oct. 1856), 342. 
 
 a Henry v. Vermillion and Ashland R. R. Co. 17 Ohio, 187. 
 
 3 Mann v. Pentz, 2 Sandford Ch. 257 ; Mann •„. Currie, 2 Barb. 294; 
 Mann v. Cooke, 20 Conn. 178 ; Penobscot and Kennebec R. R. Co. v. Dunn, 
 
STOCK BY SUBSCRIPTIONS. *75 
 
 The construction of written conditions should be 
 such as to facilitate the object of the enterprise. It 
 appearing to be the object and intent of the sub- 
 scription that the fund created thereby should be 
 used in the construction of the road, it was held, 
 where the subscriber agreed, together with others, 
 to pay to the company a certain sum on each share 
 subscribed by him, "at such times and places as 
 may be required by the board of directors," on 
 condition that the road should be so located and 
 constructed as to make a certain place a point in its 
 route, that he was bound to pay the amount upon its 
 location making that place a point, and that its con- 
 struction was not a condition precedent to the pay- 
 ment. 1 
 
 The subscription may be so drawn as to make the 
 promise of the subscriber and the condition obliga- 
 tory on the company independent stipulations, as 
 where the day fixed for paymenttnay happen before 
 the road is built. In such a case the subscriber will 
 be bound to pay his subscription, and will then be 
 left to his remedies to enforce a proper application 
 of the amount subscribed by him. 2 
 
 Fraud and Breach of Public Duty. — Fraud 
 practiced by the company or its authorized agent 
 upon a subscriber is a good defence to a suit by it 
 
 39 Maine, 601 ; White Mts. R. R. Co. v. Eastman (Supreme Ct. of N. H., 
 July T. 1856), 19 Law Rep. (Oct. 1856), 342. 
 
 1 M'Millan v, Maysville & Lexington R. R. Co. 15 B. Monr. 218. 
 
 * Fort Miller and Fort Edward Plank Road Co. v. Payne, 17 Barb. 579, 
 680 ; Henderson and Nashville R. R. Co. v. Leavell, 16 B. Monroe, 358 ; New 
 Albany and Salem R. R. Co. a. Pickens, 5 Indiana, 247. 
 
76 CREATION OF CAPITAL 
 
 for calls. 1 But lie cannot defeat a suit on his sub- 
 scription by proof of fraud to which he was in law 
 or in fact a party. 2 An agreement by one stock- 
 holder to allow another a part of his dividends, and 
 to give his proxy to that other, although its effect 
 would be to throw the affairs of the company into 
 the power of the party to whom the proxy is to be 
 given, is not a defence to a suit against other sub- 
 scribers. 8 The commission by the company of some 
 act which would be a good cause for declaring a 
 forfeiture of its charter, or irregularities in its 
 organization, are not a defence to a suit against the 
 subscriber for the installments due, where they do 
 not amount to an essential change of his contract. 
 They are matters which cannot be inquired into 
 collaterally, but only in a direct proceeding on the 
 part of the State. 4 A fortiori, he cannot defend on 
 this ground, where he has himself consented to or 
 waived such irregularities. 5 The action of the board 
 of directors or commissioners in the distribution of 
 stock, or in any matter intrusted to their discretion, 
 
 1 Kishacoquillas and Centre Turnpike Road Co. v. M'Conaby, 16 S. & 
 R. 140; Croesman v. Penrose Ferry Bridge Co., 27 Penn. State, 69; Green- 
 ville and Columbia R. R. Co. v. Smith, 6 Rich. 91. 
 
 * Southern Plank Road Co. v. Hixon, 5 Indiana, 165 ; Crocker v. Crane, 
 21 Wend. 211 ; Kishacoquillas and Centre Turnpike Road Co. •</. M'Conaby, 
 16 S. & R. 140. 
 
 8 Ryder v. Alton and Sangamon R. R. Co., 13 111. 516. 
 
 4 Conn, and Pass. Rivers R R. Co. v. Bailey, 24 Vt 465 ; Wight v. Shelby 
 R. R. Co., 16 B. Monroe, 4; Kishacoquillas and Centre Turnpike Road Co. v. 
 M'Conaby, 16 S. & R. 140; Troy and Rutland R. R. Co. v. Kerr, IT Barb. 
 581 ; Schenectady and Saratoga Plank Road Co. v. Thatcher, 1 Kernan, 102 ; 
 Covington, &c. Plank Road Co. v. Moore, 3 Ind. 510 ; Central Plank Road 
 Co. v. Clemens, 16 Missouri, 359 ; 2 Kent, Com. 312, note. 
 
 6 Danbury and Norwalk R. R. Co. v. Wilson, 22 Conn. 435. 
 
STOCK BT SUBSCRIPTIONS. 77 
 
 and on which they act judicially, if they exercise 
 their discretion in good faith and according to law 
 will not bar a recovery on the subscription. 1 
 
 Assignment op Shakes. — A mere assignment of 
 his share by a subscriber does not relieve him from 
 liability until the assignee is substituted in his 
 place. 2 But when no formalities are required by 
 the charter or by-laws for an assignment, a subscriber 
 may be relieved from liability, it seems, by a mere 
 assignment, and the assignee will be substituted in 
 his place. 8 A shareholder who derives his shares 
 from the original subscriber, and receives a new 
 certificate from the company, or is otherwise duly 
 substituted for the original subscriber, is liable to 
 pay the installments called for after the assignment. 4 
 
 Demand and Notice. — Demand of payment of 
 the subscription need not precede a suit for the 
 assessments, unless prescribed by the charter. 5 A 
 demand or notice of the unpaid installments required, 
 either personally or by publication is in many cases 
 prescribed by the charter. 6 
 
 1 Conn, and Pass. Rivers R. R. Co. ». Bailey, 24 Vt. 465 ; Crocker v. 
 Crane, 21 Wend. 211 ; Walker v. Devereux, 4 Paige, 229. 
 
 * Ryder v. Alton and Sangamon R. R. Co., 13 I1L 516 ; Schenectady and 
 Saratoga Plank Road Co. v. Thatcher, 1 Kernan, 102 ; Allen v. Montgomery 
 R. R. Co. 11 Ala. 451. 
 
 s Angell & AmeB on Corporations, § 534; Huddersfield Canal Co. v. 
 Buckley, 1 Term R. 36. 
 
 4 Hartford and New Haven R. R. Co. v. Boorman, 12 Conn. 530; Sagory 
 v. Dubois, 3 Sandf. Ch. 498 ; Hall v. U. S. Ins. Co. 5 Gill, 484. 
 
 ' Ross v. Lafayette and Indianapolis R. R. Co., 6 Indiana, 297 ; New 
 Albany and Salem R. R. Co. «*. Pickens, 5 id. 24*7. 
 
 ' TJnthank v. Henry County Turnpike Co., 6 Ind, 126 ; Hall v. H. S. Ins. 
 Co., 5 Gill, 484. 
 
78 CBEATION OP CAPITAL 
 
 Amendments op the Chaetee. — The relation 
 between the shareholder and the company is one of 
 contract, defined in the subscription and in the 
 charter and existing laws applicable thereto. Like 
 the member of a partnership or joint-stock company, 
 he contributes his funds to the common stock for a 
 special purpose ; and a diversion of the same to an 
 enterprise entirely different from the one originally 
 contemplated is a breach of trust, to prevent which 
 he is entitled to equitable remedies. 1 It is not, 
 indeed, every change, however formal or immaterial, 
 which is to be regarded as altering his contract 
 with the company, and to have the effect of dis- 
 charging him from liability upon his subscription. 
 The power of the State to impose police regulations 
 without having that effect, cannot be questioned. 
 Nor will unimportant changes by the company in 
 the location of its road, or alterations of its charter 
 upon its application to the legislature, when auxiliary 
 to its original purpose and plainly beneficial to the 
 company and the interest of the subscriber, release 
 him from liability on his subscription. 2 But where, 
 
 1 Livingston u. Lynch, 4 Johns. Ch. 673 ; Stevens v. Rutland and Bur- 
 lington E. R. Co., before Bennett, Chancellor ; 1 Am. Law Reg. (Jan. 1863) 
 154 ; Kean v. Johnson and Central R. R. Co., 1 Stockton, Ch. 401. 
 
 a London and Brighton R. Co. v. Wilson, 6 Bing. N. C, 135 ; Midland E. 
 Co. v. Gordon, 16 M. & W., 804 ; Clark v. Monongahela Nav. Co., 10 Watts, 
 364 ; Gray v. Monongahela Nav. Co., 2 W. & S., 156 ; Conn, and Pass. Rivers 
 E. E. Co. v. Bailey, 24 Vt. 479 ; Danbury and Norwalk E. E. Co. v. Wilson, 22 
 Conn. 435 ; Colvin v. Liberty and Abington Turnpike Co., 2 Carter (Ind.) 511 ; 
 Railsback v. Same, 2 id. 656 ; Winter v. Muscogee E R. Co., 11 Geo. 438, 
 452 ; Penn. and Ohio Canal Co. v. Webb, 9 Ohio, 139 ; Hartford and New 
 Haven R. R. Co. v. Croswell, 6 Hill, 387 ; N. 0. J. and Great Northern E. E. 
 Co. v. Harris, 27 Mississ. 536 ; Schenectady and Saratoga Plank Eoad Co. v. 
 Thatcher, 1 Kernan, 109. Parker, J. : " It is not certainly every extension 
 
STOCK BY SUBSCRIPTIONS. 79 
 
 "without the assent of the shareholder, the company 
 procures from the legislature an alteration of its 
 charter, which works a fundamental change in the 
 purpose and business contemplated therein, and 
 superadds to the original undertaking, or substitutes 
 for it a new and very different undertaking, he 
 may well say, JVbn hcec in fcedera veni. He 
 subscribed to a certain enterprise, — that enterprise 
 has been changed without his assent; and, upon 
 familiar principles of the law of contracts, he is 
 discharged from the obligation of the contract by a 
 breach, of the same on the part of the company. 
 The legislative sanction to the alteration cannot 
 divest him of his rights under the contract, as the 
 obligation of the same cannot be impaired by the 
 State. 1 This would clearly be the effect, if a rail- 
 road company, under an amendment to its charter 
 obtained from the legislature without the sub- 
 scribers' assent, should convert itself into a manu- 
 
 of the main line, or constrnction of a branch, or change of route subsequent 
 to subscription for stock, that will discharge a stockholder from his express 
 agreement to pay for his stock. The change made may be unimportant, or 
 may be, and in most cases, doubtless is, beneficial to the stockholders. And 
 where it is not claimed to be beneficial, and the character of the contract is 
 not altered, there can certainly be no reason for allowing a dissatisfied stock- 
 holder to take advantage of it. None of the cases recognize the right of a 
 stockholder to complain where he has not been injured." 
 
 1 Hartford and N. H. E. E. Co. v Croswell, 5 Hill, 383 ; Troy and Eut- 
 land E. E. Co. v. Kerr, 17 Barb. 604 ; Macedon and Bristol Plank Eoad Co. 
 v. Lapham, 18 id. 315 ; Kean v. Johnson and Central E. E. Co., 1 Stockton Ch. 
 401 ; N. 0. J. and Great Northern E. E. Co. v. Harris, 27 Mississ., 636 ; Win- 
 ter v. Muscogee E. E. Co., 11 Geo., 438, 453 ; Pacific E. E. v. Eenshaw, 18 
 Missouri, 210; Banet v. Alton and Sangamon E. E. Co., 13 111., 504; 
 Carlisle v. Terre Haute and Eicbmond E. E. Co., 6 Ind., 316; Sparrow v. 
 Evansville and Crawfordsville E. E. Co., 7 id. 369 ; Chapman v. Mad River 
 and Lake Erie B. R. Co., 5 Ohio State. 
 
80 CBEATION OF CAPITAL 
 
 facturing corporation. Nor would there be any 
 question about bis discbarge, if tbe charter pro- 
 vided for tbe construction of a railroad from 
 New York to Boston, and it was so changed as to 
 authorize the company instead thereof, to build 
 one from New York to Washington, or from New 
 York to Albany. On the other hand, if the amend- 
 ment merely provided for different days for holding 
 corporate meetings from those originally designated, 
 or allowed the company to make a deviation at an 
 intermediate point on its line, so as to shorten the 
 distance and cheapen tbe expense of construction, 
 tbe general termini and route and the original 
 purpose of the enterprise remaining unchanged, and 
 tbe same general bne of travel and transportation 
 being accommodated, there would be no good reason 
 for exempting the subscriber, although by the 
 change he might lose some incidental benefit. The 
 general convenience also requires that there should 
 be allowed more latitude of change in the charter of 
 railroad companies, when accepted by them, which 
 are empowered by tbe State to condemn private 
 property for public uses, and in whose operations 
 the community has a much greater interest than in 
 tbe charter of private business corporations, which 
 are clothed with no such high prerogatives, and in 
 which the community have no such interest. Pre- 
 cisely what changes may be made in a railroad 
 company without releasing the subscriber to its 
 stock, cannot be determined by any general state- 
 ment, as tbe decided cases will show. 
 In some early cases in Massachusetts, the sub- 
 
STOCK BY SUBSCRIPTIONS. 81 
 
 scriber to the stock of a turnpike corporation was 
 discharged from his obligation to pay his subscrip- 
 tion where the directors had procured from the 
 legislature an alteration of the charter changing the 
 course of the turnpike. 1 So, in New Hampshire, 
 where an individual had contracted to take a share 
 in a corporation created for the purpose of making 
 a river navigable, and empowered to hold real 
 estate not exceeding six acres, and to collect a toll 
 for forty, years, not exceeding twelve per cent, per 
 annum on the amount of money expended; and 
 ,afterwards the legislature, upon the petition of the 
 corporation but without the assent of the individual, 
 authorized it to hold real estate to the amount of 
 one hundred acres, and to collect a toll unlimited as 
 to its amount and duration, — it was held that he 
 was discharged from his contract, and not liable for 
 any subsequent assessment on the share. 2 The 
 
 1 Locke v. Middlesex Turnpike Corp., 8 Mass. 268. By the court : " The 
 plaintiffs rely on an express contract, and they are bound to prove it as they 
 allege it. Here the proof is of an engagement to pay assessments for making 
 a turnpike in a certain specified direction ; and of the making a turnpike in 
 a different direction. The defendant may truly say, Jfon hcec in fcedera veni. 
 He -was not bound by the application of the directors to the legislature for 
 the alteration of the course of the road, nor by the consent of the corporation 
 thereto. Much fraud might be put in practice under a contrary decision." 
 Middlesex Turnpike Corp. v. Swan, 10 Mass. 384. But it was considered in 
 these cases that the subscriber might still be subject to the corporate remedy 
 of a sale of his shares, notwithstanding such an alteration. In the last case, 
 it was decided that the subscriber was not bound by his promise, although 
 after the amendment he had filled several offices in the corporation, and 
 had as a director petitioned the legislature for such alteration ; sueh acts 
 amounting, at most, to concurrence as a corporator, and not as a subscriber 
 
 a Union Locks and Canals v Towne, 1 N. H., 44. 
 
 7 
 
82 CREATION OP CAPITAL 
 
 principle of these cases has been adopted in Penn- 
 sylvania. 1 It has been applied in New York to 
 railroad companies. Thus, a subscriber to the stock 
 of the Hartford and New Haven Kailroad Company, 
 with those cities fixed by its charter for its termini, 
 was exonerated from personal liability for calls, where 
 the company procured from the legislature an amend- 
 ment of its charter, authorizing it to purchase and 
 hold such a number of steamboats, to be used in 
 connection with its road, as it might deem expe- 
 dient to an amount not exceeding $200,000, and 
 for that purpose to increase its capital stock to that 
 amount, and the amendment had been accepted 
 by the stockholders without the assent of the sub- 
 scriber in question. It was considered that no 
 radical change or alteration in the charter could 
 be made or allowed, by which new and additional 
 objects were to be accomplished or responsibilities 
 incurred by the company, so as to bind the indi- 
 viduals composing it, without their assent ; and 
 that in the case in hand, a new and very different 
 enterprise had been superadded to the original un- 
 dertaking, with then ecessary powers to carry it into 
 effect, so as to preclude a recovery upon the sub- 
 scription. 2 So also, the extension of the line of a 
 turnpike, and the increase of its capital for that pur- 
 pose to more than three times the original amount, 
 was held to be such a radical and essential change 
 
 1 Indiana and Ebensburgh Turnpike Co. v. Phillips, 2 Pen. & Watts, 1S4. 
 But see Irvin v. Turnpike Co., 2 Pen. & "Watts, 466 ; Gray v. Monongahela 
 Nav. Co., 2 W. & S., 156. 
 
 s Hartford and New Haven B. R. Co. v. Croswell, 5 Hill, 383. 
 
STOCK BY SUBSCRIPTIONS. 83 
 
 as to release the subscriber from his promise. 1 la 
 Georgia, it was held where the original charter was 
 amended so as to change the eastern terminus of the 
 railroad, run it in a different direction, and connect • 
 it with another road, thereby shortening its length 
 and making its rates of freight dependent on the 
 action of another company, that the subscriber was 
 released. 2 In Mississippi, where one railroad com- 
 pany, to the stock of which the subscription was 
 made, by the votes of stockholders representing a 
 majority of its shares accepted an amendatory act, au- 
 thorizing it to assign all its rights, powers, privileges, 
 immunities, and exemptions, as well as its stock sub- 
 scribed, to another company, it was held that the 
 charter was a contract between the State and the 
 company, as well as between the company and the 
 individual stockholders, of which the State could 
 not impair the obligation ; that the legislature had 
 no power to confer on stockholders owning more 
 than one half of the stock, authority to accept amend- 
 ments of the charter making a radical change in the 
 structure of the company ; that such amendatory 
 act and the transfer and assignment in pursuance 
 •thereof, were void ; and that by virtue of such 
 proceedings, the subscriber to the stock of the first 
 company did not become a stockholder in the sec- 
 
 1 Macedon & Bristol Plank Road Co. v. Lapham, 18 Barb. 312. 
 
 5 Winter v. Muscogee R. R. Co. 11 Geo. 438. But a stockholder in a 
 company, whose stock has been forfeited, is not relieved from the payment 
 of a note given by him for it, although after the forfeiture was declared, a, 
 material alteration was made in the charter without his assent Mitchell v. 
 Rome R. R. Co. 17 Geo. 574. 
 
84 CREATION OF CAPITAL 
 
 ond, and was not liable to the second for the amount 
 subscribed; and as the transfer was void, he was 
 not liable to it, although he had assented to the 
 transfer, but still remained a stockholder in the first 
 company. 1 
 
 ' N. O. J. and Great Northern R. R. Co. 11 Missis. 511. The court 
 regarded the amendment and alteration in pursuance thereof as Toid, and 
 the subscriber as still liable to the original company. Smith, C. J. : "There 
 can be no doubt, under the uniform decisions of the courts in this confeder- 
 acy, that the acceptance of the amendatory act, in the manner it was averred 
 to have been made, could not bind the stockholders who did not assent to it 
 But the question is not one of assent, as applied to the individual corpo- 
 rators, but one of power in the stockholders possessing a majority of the 
 stock, to accept a legislative amendment which could produce a fundamental 
 change in the stipulations of the charter. The amendatory act imposed no 
 obligation on the company. It vested in the corporation no right which it 
 did not possess under its charter. It amounted simply to a legislative per- 
 mission to accept the amendment, if it should choose to do so, and could con- 
 sistently with its charter- rights and obligations. No ease has been brought 
 to our attention, in which it was directly decided that the acceptance of an 
 amendment of this character, by a majority of the corporators, was abso- 
 lutely void as to the corporation itself. In all the cases we have examined, 
 the decision turned upon the question of the individual consent of the party 
 charged or affected by the alteration. Generally, an act performed without 
 any authority whatever, is absolutely void. The principle applied to cor- 
 porations is, that they possess only the powers which are specifically 
 granted by the act of incorporation, and such as are necessary to carry into 
 effect the powers expressly granted. 2 Kent, Com. 298. In this case it is 
 not pretended that the stockholders representing a majority of the stock were, 
 expressly under the charter, vested with the power to accept of amendments 
 thereto of the character of that under consideration ; and it is impossible to 
 conceive that it existed on the part of even a majority of the whole of the - 
 stockholders, as an implied right Such a, doctrine is repugnant to the 
 principles of sound sense and common justice. When a person becomes a 
 member of an incorporated company, by his subscription to the stock, he 
 agrees to become bound by the terms of his contract, as defined in the 
 charter of incorporation ; he agrees to be bound by the acts of the corpora- 
 tion and its officers, performed within the scope of their charter powers; but 
 upon no principle can it be held that he impliedly consents to any alteration 
 which would work a radical change in the structure of the association, 
 which might be voted or accepted by even a majority of the whole of the 
 
STOCK BY SUBSCRIPTIONS. 85 
 
 What alterations in the charter and business of 
 the company are a violation of the rights of a stock- 
 holder has been determined in cases where he has 
 applied to a court of equity to enjoin the company 
 and its officers from applying the corporate funds to 
 the enterprise which the amendment assumed to 
 authorize. Thus, where the plaintiff had subscribed 
 and paid for shares in the capital stock of the Rut- 
 land and Burlington Railroad Company, which 
 under its existing charter was authorized to build a 
 railroad from Burlington, through the counties of 
 Addison, Rutland, and Windsor, or Windham, to 
 some point on the west bank of the Connecticut river, 
 and a subsequent act of the legislature provided 
 that the company might extend its road from its 
 terminus in Burlington to Swanton in the county of 
 Franklin, a distance of about thirty miles, — the change 
 in the charter was held fundamental and in violation 
 
 corporators, and thereby be subjected to burdens and obligations wholly 
 foreign to the purposes and objects of the original charter. It is our opinion, 
 therefore, that the act of acceptance was absolutely void for want of power 
 on the part of the stockholders representing a majority of the stock to vote 
 an acceptance of the amendatory act. It follows hence that the transfer 
 and assignment were also void and ineffectual. 
 
 ********* 
 
 " Upon the principle laid down in regard to the assignment, it is clear that 
 the rights of neither party to it were in any wise affected. The act of trans- 
 fer was void ; the assignors parted with no right or immunity ; the assignees 
 acquired nothing. The defendant remained a stockholder in the company 
 for whose stock he had subscribed, and as such was liable to the same ex- 
 tent after the attempted transfer as before the attempt was made. It is im- 
 possible to conceive that the assent of the defendant could bind him, unless 
 his assent to the transfer rendered it effectual for the purposes intended, or 
 unless, upon some consideration passing from the assignees to him outside of 
 the transfer, he should be estopped from denying its validity." 
 
86 CREATION OF CAPITAL 
 
 of the rights of the plaintiff, and an injunction 
 against the company and its directors was granted on 
 his application, restraining them from applying the 
 existing funds of the company or the income from 
 the existing road, either directly or indirectly to 
 the purpose of building said extension, or paying 
 land damages and other expenses contingent upon 
 building it ; and also from using or pledging, 
 directly or indirectly, the credit of the company in 
 effecting the object of the extension; but leaving it 
 at liberty to build the same with any new funds 
 which it might see fit to obtain for that specific 
 object. 1 
 
 1 Stevens v. Rutland and Burlington R. R. Co., 1 Am. Law Keg. 154. 
 Bennett, Chancellor, — " It was well conceded in the argument on the 
 defence, that if the corporation had been about to proceed to a construction 
 of the contemplated extension without the act of 1850, it would have been 
 a proper case for an injunction. The only question which can be open to 
 debate is, as to what Bhall be the effect of the act of 1850, and a subsequent 
 adoption of the act by the corporation, upon the individual rights of a share- 
 holder who does not assent to its adoption ? If bound by it, there is no 
 equity in this bill. It is, and must be admitted, that the legislature have no 
 constitutional power, unless it be reserved in the grant, to change or alter 
 an act of incorporation without consent, and thereby cast upon the company 
 new and additional obligations, or take from them rights guaranteed under 
 the original charter. And, indeed, this the legislature have not attempted to 
 do. It is also equally true, that it is a part of the law of corporations, that 
 they act according to the voice of the majority. But it is to be remembered, 
 that this is not a suit in which the plaintiff seeks to protect himself in any 
 corporate right, but in his own individual right, growing out of the fact of 
 his having become a corporator, by his subscription and its payment, to the 
 capital stock of the company. One of an aggregate corporation may 
 contract with the company, as well as a third person ; and the rights of the 
 individual so contracting are no more distinct and independent in the one 
 case, than in the other. The plaintiff by his subscription assumed to pay 
 to the corporation, and only for the purpose specified in the charter, its 
 amount according to the assessments ; and there was at the same time a 
 teust created, and an implied assumption on the part of the corporation to 
 
STOCK BY SUBSCRIPTIONS. 87 
 
 The sale of the Elizabethtown and Somerville 
 Railroad Company to the Somerville and Easton 
 
 apply it to that object, and none other. The corporation also assumed upon 
 themselves to account to this corporator for his share of the dividends, 
 when this road should be completed and put in operation ; and for his share 
 of capital stock, though not in wuimero. The charter in this case, gives to 
 the State the right to purchase out the road of the corporation after a given 
 number of years, upon certain terms therein specified. The relation between 
 each original shareholder and the corporation is the same. The obligation 
 of the contract between the legislature and the corporation, after an 
 acceptance of the charter, is no more sacred than that which is created 
 between the corporation and the individual corporator. Does any one sup- 
 pose the legislature could, without the consent of parties, absolve a corpora- 
 tor from liability on his subscription to the corporation, or modify it % and 
 can they do the reverse of it ? It is conceded that there is a class of altera- 
 tions in a charter, which the corporation may obtain and adopt, that would 
 not so essentially change the contract as to absolve the corporator from his 
 subscription, or give him a right to complain in a court of justice in ease he 
 had previously paid it. 
 
 " Where the object of the modification or alteration of the charter is 
 auxiliary to the original object of it, and designed to enable the corporation 
 to carry into execution the very purpose of the original grant, with more 
 facility and more beneficially than they otherwise eould, the individual cor- 
 porator can not complain ; and I should apprehend it would make no dif- 
 ference with the rights of a corporation in such a case, though he eould 
 show that the charter as amended was less beneficial to the corporators than 
 the original one would have been. The ground upon which such amend- 
 ments bind the corporator, I deem to be his own consent. When he 
 becomes a corporator by his signing for a portion of the capital stock, he in 
 effect agrees to the by-laws, rules, and votes of the company, and there is 
 an implied assent on his part with the corporation that they may apply for 
 and adopt such amendments as are within the scope and designed to 
 promote the execution of the original purpose ; and he signs, and the cor- 
 poration receive his subscription, subject to such implied contingency ; and 
 if we regard it in the nature of a license only, it would not alter the 
 principle. Both parties having acted upon it, it would not be counter- 
 
 mandable. 
 
 ******* 
 
 " The consent or assent may, however, be implied in a class of cases, as 
 has already been stated, where the amendment is not regarded as fundamental, 
 and can be brought within the scope of the original purpose of the associa- 
 tion ; and this is going to the very verge of the powers of the corporation. 
 
88 CKEATION OF CAPITAL 
 
 Railroad Company, and their union under the name 
 of The Central Eailroad Company of New Jersey, 
 
 It is difficult, and -would be unwise, to attempt to lay down any general 
 rules to determine in what precise cases the assent of the corporator should 
 be implied, and in what not. It is sufficient for the present purpose, to say 
 that his assent can not be implied in a case like the present from a majority 
 vote. Courts may differ, and doubtless will, in regard to what alterations 
 shall be sufficient to constitute a fundamental change. But in the present 
 case, I think, on this point there can be but one opinion. The termini of the 
 road, as fixed by the charter, are Burlington and some point on the west 
 bank of Connecticut river, in the county of Windsor or Windham. The 
 capital stock is one million of dollars, with a right in the corporation to 
 increase it to an amount sufficient to complete said road, and furnish the 
 necessary apparatus for conveyance. The supplementary act of 1850 pur- 
 ports to authorize the corporation within three years to construct and 
 extend their railroad from the terminus in Burlington, to some point in 
 Swanton, in the county of Franklin, a distance of about thirty miles ; and 
 the act provides that in the construction of the road, they shall have all the 
 rights and privileges, and be subject to all the liabilities, contained in their 
 original charter and the acts in addition to it. 
 
 " The franchise granted to this company was territorial ; and an exten- 
 sion of the termini necessarily is an extension of the franchise. It eannot 
 remain the same thing in substance, until it can be established that » part 
 is equal to the whole. Besides, the company may increase the capital stock 
 to such additional sum as shall be necessary to construct the extension. 
 
 " The statute of 1850 is little less in effect, if any thing, than an attempt 
 to create in a summary manner, and by way of reference, a new corporation, 
 and transfer all the old corporators to it. If all the corporators had 
 assented to this transfer it was well enough. The change in the purpose 
 was not more fundamental in the case from the 5th of Hill than in this. It 
 is not necessary that the business should be changed in kind, to change the 
 original purpose. If this is not a change in purpose, it would not be to 
 extend the road in one direction to Canada line, and in the other to Massa- 
 chusetts line, and there would be no limits to the control which the cor- 
 poration might acquire over the individual corporators, and this, too, without 
 their consent, except what arises from the confines of legislative authority. 
 
 " The change, then, in the charter being fundamental, and the corporation 
 not being able to bind the plaintiff by a majority vote, what must be the 
 residt ? If he had been sued for an assessment upon his stock, he might 
 have claimed that he was absolved from all liability upon the acceptance of 
 the amendment. And is not this reasonable ? Shall it be said that the 
 legislature and the corporation have power to embark this corporator in a 
 
STOCK BY SUBSCRIPTIONS. 89 
 
 was held to infringe the rights of a stockholder in 
 the former company and to entitle him to equitable 
 relief. 1 
 
 In England, injunctions have been granted, at 
 the suit of a stockholder, against the company to 
 restrain it from embarking in projects not author- 
 ized by its charter, and therefore unlawful; but 
 when such projects have been sanctioned by Parlia- 
 ment, the shareholder is considered without remedy. 2 
 The absence of any supreme law in that country 
 securing the inviolability of contracts, even from acts 
 done under legislative authority, leaves a shareholder 
 without remedy to prevent the company from divert- 
 ing the corporate funds to purposes not originally 
 contemplated. The English decisions on the point 
 will be further discussed, in the chapter on Con- 
 tracts. 
 
 There are other decisions, in which the amend- 
 ments of the charter have been held not to be of 
 that radical and fundamental character which will 
 
 speculation to which he has never consented ? If it can be done in one case, 
 it can in another. But having paid his funds into the corporation, he has a 
 right in chancery to compel a faithful performance of the trust by the cor- 
 poration in conformity to the original charter, and to keep them within its 
 purview. No one can suppose that upon the payment of his subscription 
 the personal identity of the plaintiff was merged in the corporation, or that 
 he ceased to have distinct and independent rights." 
 
 1 Kean v. Johnson and Central R. R. Co., 1 Stockton Ch. 401 ; see the 
 learned and full opinion of the master in chancery. See Chapman v. Mad 
 Eiver and Lake Erie R. R. Co., 5 Ohio State. 
 
 3 Winch v. Birkenhead, &c. Junction R. Co., 13 Eng. L. and Eq. 506 ; 
 Bagshaw v. Eastern Union R. Co., V Hare Ch. 114; Ware v. Grand Junction 
 Waterworks Co., 2 Rus. &, My. 470; 13 Cond. Ch. 126; Coleman v. 
 Eastern Counties R. Co., 10 Beavan, 1 ; Muntn. Shrewsbury and Chester R. 
 Co., 3 Eng. L. and Eq. 144; Solomons v. Laing, 12 Beavan, 339. 
 
90 CREATION OF CAPITAL 
 
 relieve the subscriber. 1 Thus, the construction, by 
 the Greenville and Columbia Railroad Company, of 
 a branch road eleven miles long, was decided not 
 to be such a material departure from the original 
 enterprise, in comparison with its magnitude, as to 
 discharge the subscriber. 2 Where the charter of 
 the Alton and Sangamon Railroad Company, a 
 corporation of the State of Illinois, authorized the 
 construction of a railroad from Alton on the Mis- 
 sissippi River, by the way of Carlinville in Maconpin 
 County, New Berlin in Sangamon County, to the 
 city of Springfield in the County of Sangamon, and 
 an amendatory act was procured by the company, 
 authorizing it to change the location of its road so 
 as to run the same directly from Carlinville to 
 Springfield, whereby the line of the road was short- 
 ened about twelve miles, and the cost of construction 
 considerably lessened, a subscriber who was largely 
 interested in real estate near New Berlin, the value 
 of which would have been much enhanced by the 
 construction of the road according to the route 
 originally provided in the charter, was still held 
 liable for the payment of his subscription, although 
 the road by the new route did not come within 
 twelve miles of that place. It was considered that 
 the alteration was beneficial to the company and to 
 the community ; and that notwithstanding a devia- 
 
 ' Penn. and Ohio Canal Co. v. Webb, 9 Ohio, 136 ; Clark v. Monongahela 
 Nav. Co., 10 Watts, 864 ; Gray v. Monongahela Nav. Co., 2 W. & S., 156 ; 
 Midland Great Western R. Co. v. Gordon, 16 M. & W., 804; London and 
 Brighton E. Co. v. Wilson, 6 Bing. N. C, 185. 
 
 s Greenville and Columbia R. R. Co. v. Coleman, 5 Rich. 118. 
 
STOCK BY SUBSCRIPTION. 91 
 
 tion at an intermediate point, the general features of 
 the enterprise remained unchanged, and the same 
 line of travel and transportation 'would be accom- 
 modated. 1 
 
 1 Banet v. Alton and Sangamon R. R. Co., 13 I1L, 504. After reviewing 
 the authorities, Treat, C. J., said, " It follows from these authorities, that an 
 alteration in a charter may be so extensive as to work a dissolution of the 
 contract of subscription. An amendment which essentially changes the 
 nature or objects of a corporation, will not be binding on the stockholders. 
 A corporation formed for the purpose of constructing a railroad cannot be 
 converted into a company to construct an improvement of a different char- 
 acter, without the consent of the corporators. A road intended to secure the 
 advantages of a particular line of travel and transportation, cannot be so 
 changed as to defeat that general object. The corporation must remain 
 substantially the same, and be designed to accomplish the same general 
 purposes and subserve the same general interests. But such amend- 
 ments of the charter as may be considered useful to the public, and 
 beneficial to the corporation, and which will not divert its property to 
 new and different purposes, may be made without absolving the sub- 
 scribers from their engagements. The straightening of the line of the road, 
 the location of a building at a different place on a stream, or a deviation in 
 the route from an intermediate point, will not have the effect to destroy or 
 impair the contract between the corporation and the subscribers. We regard 
 these conclusions as reasonable and just, and as well calculated to facilitate 
 the construction of improvements, and promote the best interests of the public 
 and of stockholders. The incidental benefits which a few subscribers may 
 realize from a particular location, ought not to interfere with the general 
 interests of the public and of the great mass of the corporators. These 
 interests of the public and of the corporation may with propriety be con- 
 sulted and encouraged, especially where the alteration will not operate 
 to depreciate the value of the stock. A shareholder has no cause to com- 
 plain of the loss of a mere incidental benefit, which formed no part of the 
 consideration of his contract of subscription. The difficulties attending 
 the construction of a public improvement may not be fully known when the 
 charter is granted and the stock subscribed. The legislature possesses the 
 power to provide a remedy, by authorizing the company to adopt a more 
 feasible route, without obtaining the consent of the corporators. A few ob- 
 stinate stockholders should not be permitted to deprive the public and the 
 company of the advantages that will result from a superior and less expen- 
 sive route. The subscribers are sufficiently protected against any invasion 
 of their legitimate rights. The original location must be pursued, unless a 
 change is sanctioned by the legislature. The alteration must be accepted by 
 
92 CREATION OF CAPITAL 
 
 In some of the States, as in Missouri, there is a 
 strong tendency to disallow this defence in a suit on 
 the subscription, on account of the public character 
 of such corporations, which distinguishes them from 
 joint-stock companies and ordinary business corpo- 
 rations, and to turn the subscriber over to a court 
 of equity for his remedy, by injunction to restrain 
 a misapplication of the corporate funds. 1 
 
 the managers of the company, before it becomes obligatory on the stock- 
 holders. And the latter will not even then be bound, if their interests are 
 materially affected by the alteration ; and in such case, they may not only 
 avoid the payment of their subscriptions, but recover back such sums as they 
 have advanced thereon. 
 
 The alteration in the present case is not of such a radical character as to 
 exonerate the stockholders from the payment of their subscriptions. The 
 general features and objects of the corporation remain unchanged. The 
 termini of the road remain the same ; the only change consisting in a devi- 
 ation from an intermediate point. The work is still designed to accommodate 
 the same line of travel and transportation, and promote the same general 
 interests. The length of the road is reduced, and the cost of construction 
 diminished. The change will be useful to the public, as the legislature has 
 determined, and beneficial to the company, as the board of directors has 
 decided ; and the facts of the case clearly sustain both of these conclusions. 
 The only injury that can accrue to any of the subscribers, will be the loss of 
 some incidental benefit to their property ; and that, as we have already seen, 
 cannot be taken into consideration. If the charter had been so amended as 
 to authorize the construction of a road from Alton to Vandalia or Shelbyville, 
 or from Springfield to Beardstown or Peoria, instead of the one origi- 
 nally designated, the company would be committed to a new and difficult 
 [different] enterprise; and the stockholders, might with much force and 
 justice say, this is not the undertaking in which we engaged, and not the 
 Btock in which we agreed to invest our funds.'' Peoria and Oquawka R. R. 
 Co. v. Elting, 11 111., 429. 
 
 1 Pacific R. R. Co. v. Hughes, 22 Missouri, 291. Two judges concurred in 
 the opinion ; and Scott, J., dissented on the ground that there was a contract 
 between the company and the subscriber, which had been violated by the 
 changes. Leonard, J., delivering the opinion of the majority, said, " When 
 an unincorporated joint-stock company is formed, the rights of the partners, 
 not only as between themselves individually, but also between each member 
 
STOCK BT SUBSCRIPTIONS. 93 
 
 Where the charter, or some prior statute applica- 
 ble thereto, reserves to the legislature the power to 
 
 and the -whole body of the subscribers, are usually settled by the articles of 
 association, or a deed of settlement. These articles, constituting the associ- 
 ation, and regulating not only the powers of the majority, but also the rights 
 of each stockholder, are the constitution of the society, and of course cannot 
 be changed without the consent of every member ; and therefore, if the com- 
 pany attempt to appropriate the funds to a purpose not authorized by the 
 articles, or assume powers not conferred by the constitution of the company, 
 the law will protect the minority by an injunction or a decree for a dissolution 
 of the company, and an account and distribution of its effects, as the character 
 of the act complained of may require. And it may be that the same law 
 ought to prevail when a mere private company, charged with no public duties, 
 and acting alone with a view to the interests of its members, acts under a 
 charter of incorporation, upon the principle that the charter then stands as 
 the constitution of the society in lieu of articles of association, and regulates 
 the rights and duties both of the company and the stockholders, pursuant to 
 their mutual agreement Accordingly, there are caseB in the books of pro- 
 ceedings against incorporated joint-stock companies, by individual members, 
 to restrain the company from misapplying the corporate funds ; and this relief 
 may be extended even to a dissolution of the society, and an account and dis- 
 tribution of its effects, if the case requires it, upon the same principles that 
 similar relief is administered in ordinary partnerships. But it must be ob- 
 served that there is an admitted distinction between a company acting under 
 mere articles of association and one acting under a charter of incorporation, 
 in reference to the control of the majority over the constitution of the com- 
 pany. In the one case the articles are inviolable in every particular, no 
 matter how minute, unless a power to alter is expressly given to the com- 
 pany ; in the other, as the law authorizes the government to change the 
 charter, with the assent of the majority, it may be said that there is an 
 implied assent on the part of each stockholder to all such changes. It is 
 insisted, however, that this implied assent does not extend to such funda- 
 mental changes as make the amended charter an entirely different enterprise ; 
 changing, for instance, a charter for a canal into one for a railroad ; or » 
 charter for a road to accommodate one line of travel into one for a road for 
 the accommodation of an entirely different line ; nor to changes that mate- 
 rially alter the constitution of the society, or greatly enlarge its powers. 
 
 " In England, however, where private property is, perhaps, as well pro- 
 tected as in our own country, no such limitation appears to be recognized in 
 reference to this implied assent of all the stockholders to future changes in the 
 constitution of the company, made by the government, with the consent of 
 a majority of its members. Accordingly, Lord Brougham, in Ware v. Grand 
 
94 CREATION OF CAPITAL 
 
 alter or amend the charter, the company may, under 
 the authority of the legislature, build branch roads, 
 
 Junct. Wat. Co. (2 Russ. & Mylne, 470), refused to restrain a railroad com- 
 pany from applying to Parliament for an enlargement of its powers and for 
 fundamental changes in its constitution, upon the ground that it was the 
 right of the company to procure the changes, if they desired them ; and 
 that all who became stockholders did so with their eyes open to this power 
 of the majority over the constitution of the society. We remark here, too, 
 that a distinction seems to exist in the English courts between mere private 
 corporations, acting exclusively for the benefit of their members, as banking 
 and other similar companies, and railroad companies, that must be consid- 
 ered as acting partly with a view to the public interest, in consideration of 
 which they obtain from the government the right of taking compulsorily the 
 land of private individuals for the use of the road. (Ffooks v. The Lond. and 
 S. W. Railroad Co. 19 Eng. Law and Eq. Rep. 11.) 
 
 " But however all this may be, and recognizing for the purposes of the 
 present case the right of each stockholder to resist fundamental changes 
 in the charter to his injury and against his consent, it seems to us that the 
 American cases that have allowed this matter to be set up at law, as a de- 
 fence to a suit for calls upon stock taken, have not been very well considered, 
 are without any precedent in the English courts, are not warranted upon juBt 
 legal principles, and cannot be carried out in practice without infinite mis- 
 chief, not only to the public interests involved in all great works of this char- 
 acter, but also to the private rights of the other members of the company. 
 If the dissenting member is released at law by the mere effect of these fun- 
 damental changes, it is because they have of themselves broken up, without 
 any judicial sentence to that effect, the original association, on account of the 
 inability or unfitness 'of the corporation, as now constituted, to execute the 
 original purposes of the association. It is very evident, however, that when- 
 ever this question is to be discussed and settled, there are other parties in- 
 terested in it besides the complaining stockholders and the corporate body. 
 The members of this company have agreed with one another to construct a 
 railroad out of a joint fund, to which each has contributed in proportion to 
 the share he is to have in the work when completed ; and it is not, and 
 ought not to be in the power of any one or more of the partners, at pleasure, 
 to break up this undertaking by withdrawing the fund already advanced, 
 or, which is the same thing, by withholding what he has agreed to contrib- 
 ute ; nor ought the courts of justice, by their judgments, to produce this result, 
 unless in a case proper for such relief, and in which all the interests to he 
 affected are represented before the court. Whether, however, the alleged 
 changes in the constitution of this company, procured, or at least assented to, 
 by a majority of the company, are of such a character as to warrant the in- 
 
STOCK BY STJBSOEIPTIONS. 95 
 
 extend its line, increase its capital stock, or do such 
 other things as the legislature may authorize in 
 pursuance of such reserved power. The charter is 
 accepted on that condition, and the assent of the 
 stockholder in advance to such alterations and 
 amendments as the legislature shall make in pursu- 
 ance thereof, is an element of his contract. He can 
 not, therefore, defend a suit on his subscription, on 
 the ground that changes which were authorized by 
 the legislature by virtue of the reservation, have 
 been made in the charter and business of the com- 
 pany. Thus, where the Northern Railroad Com- 
 pany were empowered " to borrow money for the 
 construction of their road, to an amount not exceed- 
 ing one half the sum actually paid by its stockhold- 
 ers, and also to pay interest to stockholders for 
 stock payments made by them beyond general 
 calls, and payments by the whole stockholders 
 
 terferenoe of the courts at the instance of a dissenting stockholder, by injunc- 
 tion against a probable misapplication of the funds, or by a decree for a 
 dissolution of the original association, on account of the unfitness or inability 
 of the corporation, as now constituted under the amended charter, to exe- 
 cute the original purpose of the partners, need not now be determined. In 
 the view we take of the case, it is enough, yielding to this stockholder all 
 the rights that he would have in a private joint-stock company, acting under 
 voluntary articles of association, — without any power in the company to 
 change the objects of association, or alter in the least the constitution of the 
 society, — that his remedy for a wrong of the character of the present one is 
 a suit in equity, in which all the parties in the matter to be litigated may 
 be heard, and complete justice done to all upon the final determination of 
 the case. And to this view of the subject we incline, notwithstanding some 
 of the American cases to which we have referred hold quite a different doc- 
 trine, and allow fundamental changes in a charter to be used by a stock- 
 holder as a defence at law against subsequent calls upon stock previously 
 subscribed, but with considerable difference of opinion as to the character 
 and extent of the changes necessary to produce this result." 
 
96 CREATION OF CAPITAL 
 
 of the company, upon condition that the said com- 
 pany shall construct their road with the heavy iron 
 rail, weighing at least fifty-six pounds to the lineal 
 yard ; and to construct one or more branch lines of 
 railroad, to connect the line authorized by their 
 charter, with one or more lines of railroad to be con- 
 structed in Canada East," — it was held, that the 
 charter being subject to amendment or repeal by a 
 general law existing when it was given, and also 
 itself containing such a clause, a subscriber was not 
 absolved by such alteration, although obtained 
 without his special assent at the time. 1 A subscriber 
 to the stock of the Syracuse and Utica Railroad 
 Company was held not absolved from his agreement 
 where, there being a similar provision in the char- 
 ter, as also in the general law applicable thereto, 
 that company by a special act passed after the sub- 
 scription was made, was authorized to subscribe to 
 the capital stock of the Great "Western Railroad, 
 Canada "West, the alteration being also deemed ben- 
 eficial to the company. 2 So also, where the general 
 law applicable to the charter, reserved the power to 
 alter, repeal, or amend, a subscriber to a plank road 
 company was held not released from his subscrip- 
 tion where the company by virtue of a legislative 
 act, without his consent, increased its capital stock 
 
 1 Northern R. R. Co. v. Miller, 10 Barb. 260. A contractor who has 
 agreed to take stock in payment of his debt, cannot recover its par value 
 when such an alteration has been made, which was authorized by the right 
 of amendment. Moore v. Hudson River R. R. Co. 12 Barb. 156. See Noyes 
 v. Spaulding, 27 Vt. (1 Williams), 420. 
 
 ' White v. Utica and Syracuse R. R. Co. 14 Barb. 559 
 
STOCK BY SUBSCRIPTIONS. 97 
 
 and applied its funds to the construction of a branch 
 road not authorized by the original subscription. 1 
 Nor can a stockholder object to the building of a 
 lateral road, where the building of such road is au- 
 thorized by the charter, unless the one proposed was 
 clearly not contemplated in the charter. 2 Where 
 by the general law of Missouri, the charter of the 
 Pacific Kailroad Company, incorporated to construct 
 a railroad from St. Louis to Jefferson City, and 
 thence to some point in the western line of Van Bu- 
 ren county, was "subject to alteration, suspension, 
 and repeal, in the discretion of the legislature," it 
 was held that the passage of acts authorizing the 
 Company to accept bonds which the State may issue 
 for $2,000,000, and to dispose of the bonds and 
 employ the money in the construction of the road to 
 be mortgaged for the principal and interest of the 
 bonds, and also granting to the Company authority 
 to construct the road from St. Louis to any point in 
 the western line of the State of Missouri, on any 
 route the Company may select; and the acceptance 
 of these amendments by a majority in interest and 
 number of the stockholders, — did not absolve the 
 subscriber from his obligation to pay for the shares 
 taken by him. 8 Nor was he released where by vir- 
 tue of such a reservation in a general law, the legis- 
 lature increased the liabilities of stockholders by an 
 act subsequent to the subscription. 4 So also, where 
 
 1 Schenectady and Saratoga Plank Road Co. v. Thatcher, I Reman, 102. 
 a Newhall v. Galena and Chicago Union R. R. Co. 14 111. 273. 
 ■ Pacific R. R. v. Renshaw, 18 Missouri, 208 ; Central Plank Road Co. v. 
 Clemens, 16 id. 359 ; Pacific R. R. Co. v. Hughes, 22 id. 291. 
 4 Meadow Dam Co. v. Gray, 30 Maine, 549. 
 
 8 
 
98 CREATION OF CAPITAL 
 
 after a public act had taken effect, authorizing the 
 consolidation of two railroad companies, a party who 
 subscribed to the stock of one of them after the 
 passage of the act, was held liable for the subscrip- 
 tion to the new company, whether the consolidation 
 was with his personal knowledge or not. 1 A party 
 may, by the terms of his subscription, consent to 
 a future consolidation, which will not by reason 
 of such consent release him from liability. 2 But, 
 where a party not a stockholder promised to pay a 
 railroad company a certain sum, notwithstanding 
 such a reservation he is discharged from his promise 
 by a material alteration. 8 
 
 The doctrine that where the power of amendment 
 has been reserved, a subscriber will not be released 
 by alterations made in the charter, is subject to some 
 limitation. It is implied in the decisions given under 
 this head, that notwithstanding the reservation, such 
 a radical change in the company as diverts it from 
 its original purpose, or works a revolution of its 
 character and objects, as by converting it into a 
 manufacturing, mining, or banking corporation, 
 would not bind a dissenting shareholder. 4 Perhaps 
 the doctrine may be stated thus : that the reserva- 
 tion authorizes such alterations only as may be fairly 
 judged to facilitate the original purpose of the char- 
 ter of a road with the general route and termini ap- 
 pointed thereby; as, for instance, a consolidation 
 
 1 Sparrow v. Evansville and Crawfordsville R. E. Co. 1 Ind. 869. 
 
 2 Fisher v. Evansville and Cra-wfordsville E. E. Co. 1 Ind. 40^ ; C. and 
 Y. E. Co. v. Paterson, 18 C. B. 414, 86 E. C. L. 
 
 ' Carlisle v. Terre Haute and Richmond E. E. Co. 6 Ind. 316. 
 4 See cases cited on pp. 96, 97. 
 
STOCK BY SUBSCRIPTIONS. 99 
 
 with other roads connecting with it, or the building 
 of branch roads tributary thereto, or some conven- 
 ient divergence from the line originally designated. 
 It was held, — where the capital stock of a railroad 
 company was reduced from $1,500,000 to $325,000, 
 and its line shortened one half of the distance fixed 
 in the original articles, and a transfer of a part of 
 the remainder and a lease of the rest to another 
 company during the continuance of the charter, were 
 effected, — that these acts, when authorized by the 
 legislature under its reservation of power, were not 
 such essential changes as to exonerate the subscriber ; 
 although the judge delivering the opinion thought 
 otherwise. 1 
 
 Nor will the reservation have any effect where 
 the conditions imposed by the legislature on the 
 company, as precedent to the changes authorized 
 in the amendment, are not fulfilled by it. If the 
 power to make alterations is conferred on the com- 
 pany on condition that it shall obtain the consent 
 in writing of persons owning two thirds of the 
 stock, and the like consent of a majority of the 
 inspectors, the exercise of the new power without 
 a previous performance of those conditions, will 
 exonerate the subscriber where the changes are 
 essential and radical. Nor will the fact that he par- 
 ticipated in the proceedings of the company to ex- 
 tend the road and increase its capital, and retained 
 his stock after the extension had been made, and 
 then sold the same for a valuable consideration, 
 estop him from denying his liability to pay the sub- 
 
 1 Troy and Rutland R. R. Co. v Kerr, 17 Barb. 581. 
 
100 CREATION OP CAPITAL 
 
 scription ; as it is to be presumed that he was in favor 
 of legally effecting the alterations. 1 
 
 Remedies op the Company por collecting 
 Assessments upon the Shares. — The remedy of 
 the company against a delinquent shareholder may 
 be one or both of two different kinds, — by a sale 
 of his share as forfeited on his default, or by a suit 
 at common law upon the subscription. It is usu- 
 ally provided in the charter or by some general 
 law, that in case of his default to pay his subscrip- 
 tion, his share may be declared forfeited by the 
 company and sold. This special remedy is not exclu- 
 sive, but only cumulative ; and with great uniform- 
 ity it is decided, that the shareholder is still liable 
 on an express promise in his subscription. 2 The ex- 
 
 1 Macedon and Bristol Plank Eoad Co. v. Lapham, 18 Barb. 312. 
 
 5 Worcester Turnpike v. Willard, 5 Maes. 80 ; New Bedford and Bridge- 
 water Turnpike Corp. v. Adams, 8 id. 138 ; Middlesex Turnpike Corp. v. 
 Locke, 8 id. 268 ; Taunton and South Boston Turnpike Corp. v. Whiting, 10 
 id. 327 ; Middlesex Turnpike Corp. v. Swan, 10 id. 384 ; N. H. Central R. K. 
 v. Johnson, 10 Foster, 390 ; Contooeook Valley R. E. Co. v. Barker, 32 N. H. 
 363 ; Connecticut and Passumpsic Eivers E. E. Co. v. Bailey, 24 Vt. 465 ; 
 Meadow Dam Co. v. Gray, 30 Maine, 647, 552 ; Kennebec and Portland E. 
 E. Co. v. Kendall, 31 id. 470 ; Hartford and N. H. E. E. Co. v. Kennedy, 12 
 Conn. 499 ; Goshen Turnpike Co. v. Hurtin, 9 Johns. 217 ; Herkimer Manuf. 
 and Hydraulic Co. v. Small, 21 Wend. 273 ; Troy Turnpike and E. K. Co. v. 
 M'Chesney, 21 id. 296 ; Northern E. E. Co. i>. Miller, 10 Barb. 260 ; Troy 
 and Rutland R. R. Co. v. Kerr, 17 Barb. 581 ; Fort Edward and Fort Miller 
 Plank Road Co. v. Payne, 17 Barb. 567 ; Troy and Boston R. R. Co. v. Tib- 
 bitts, 18 id. 300 ; Ogdensburgh, Rome and Clayton R. R. Co. v. Frost, 21 id. 541 ; 
 Klein v. Alton and Sangamon R. R. Co., 13 111. 514; Peoria and Oquawka 
 R. R. Co. *. Elting, 17 111. 429 ; Stokes v. Lebanon and Sparta Turnpike Co., 6 
 Humph. 241 ; Greenville and Columbia R. R. Co. v. Cathcart, 4 Rich. 89 ; Beene 
 v. Cahawba and Marion R. R. Co., 3 Ala. 660 ; Selma and Tennesee E. R. 
 Co. v. Tipton, 5 id. 787 ; Allen v. Montgomery R. R. Co., 11 Ala. 450 ; Free- 
 man v. Winchester, 9 S. <fe Marsh. 577 ; Instone v. Frankfort Bridge Co., 2 
 
STOCK BY SUBSCRIPTIONS. 101 
 
 press promise is founded on a valid consideration, 
 viz.: the interest which the subscriber is thereby 
 to receive in the stock of the company and in its 
 profits. 1 The common-law remedy of a suit on an 
 express promise in the subscription, also exists 
 where the charter declares that upon the failure to 
 pay the calls, " the stock shall be forfeited to the 
 company with the installments which may have 
 been paid ;" 2 and the- same rule applies where the 
 clause of forfeiture is inserted in the subscription, 
 by the terms of which the non-payment is " on pain 
 of forfeiting previous installments." 8 
 
 It is a question involving much conflict of judicial 
 opinion, whether where the statute remedy of for- 
 feiture is given, and the subscriber has made no 
 express promise to pay assessments in his subscrip- 
 tion, and no personal liability to pay them is 
 expressly imposed on him in the charter, they may 
 be recovered of him in a suit upon an implied agree- 
 ment to pay them. It was early decided in Mas- 
 sachusetts that in the absence of an express promise 
 an action could not be maintained on a mere agree- 
 ment to take shares. It was considered that a cor- 
 
 Bibb, 577 ; Eiver Nav. Co. v. Neal, 3 Hawks, 520 ; Canal Co. v. Sansom, 1 
 Binney, "70. 
 
 1 Worcester Turnpike Co. v. Willard, 5 Mass. 86 ; Union Turnpike Co. v. 
 Jenkins, 1 Caines, 381 ; Fort Edward and Fort Miller Plank Eoad Co. v. 
 Payne, 17 Barb. 667 ; Hamilton and Deansville Plank Road Co. v. Rice, 1 
 Barb. 164; Kennebec and Portland R. R. Co. v. Palmer, 34 Maine, 366; 
 Same v. Jarvis, 34 id. 360 ; Vt. Central R. R. Co. v. Clayes, 21 Vt. 30 ; Dan- 
 bury and Norwalk R. R. Co. «. Wilson, 22 Conn. 435 ; Selma and Tennessee 
 R. R. Co. v. Tipton, 5 Ala. 787 ; Leviston v. Junction R. R. Co., 7 Ind. 599. 
 
 ' Selma and Tennessee R. R. Co. v. Tipton, 5 Ala. 787. 
 
 8 Troy Turnpike and R. R. Co. „. M'Chesney, 21 Wend. 296. 
 
102 CREATION OF CAPITAL 
 
 poration has no power at common law to make 
 assessments on the corporators for its use ; that where 
 this power is given by statute, the general rule 
 applies that when a statute gives a new power, and 
 at the same time provides the means of executing 
 it, those who claim the power can execute it in no 
 other way ; and therefore where one simply engages 
 to become the proprietor of a certain number of 
 shares without promising to pay assessments, the 
 only remedy of the corporation against him, when 
 delinquent, is by a sale of his shares as provided by 
 the statute. 1 
 
 The decisions in Massachusetts have been followed 
 in Maine ; where it is decided that when the language 
 of the charter or general statute which authorizes a 
 collection of the assessments by a sale of the shares, 
 does not in terms authorize the corporation to make 
 a call personally upon the subscriber, or impose 
 upon him a personal obligation to pay, there can be 
 no recovery on the subscription unless it contains 
 an express promise ; although it might be different 
 where no remedy by the sale of shares is provided. 
 It was there held that a provision in the charter, 
 authorizing the company " to make and collect such 
 assessments on the shares " as " may be deemed 
 expedient, in such manner as should be prescribed 
 
 1 Worcester Turnpike Co. v. Willard, 5 Mass. 80 ; Andover and Medford 
 Turnpike Corp. v. Gould, 6 id. 40 ; Same v. Hay, 7 id. 102 ; New Bedford and 
 Bridgewater Turnpike Corp. v. Adams, 8 id. 138 ; Middlesex Turnpike Corp. v. 
 Swan, 10 Mass. 384 ; Taunton and South Boston Turnpike Corp. v. Whitney, 
 10 id. 32*7 ; Franklin Glass Co. „. White, 14 id. 286 ; Salem Mill Dam Corp. 
 v. Ropes, 6 Pick. 23 ; Newburyport Bridge v. Story, 6 id. 45 ; Cutler v. 
 Middlesex Factory Co., 14 id. 483; Sedgwick on Statutory and Constitu- 
 tional Law, ch. viii. p. 403. 
 
STOCK BY SUBSCRIPTIONS. , 103 
 
 in their by-laws," does not confer on the company 
 the power, by a by-law, to create a personal liability 
 of the stockholder to pay for his shares. 1 The same 
 view is adopted in Vermont, where in the absence 
 of an express promise the corporation is confined to 
 the remedy prescribed in the charter or general 
 statute. It is there decided that the subscription, 
 in order to be sued upon, should contain something 
 more than a promise to become a stockholder, ' or 
 proprietor of a given number of shares ; but if it 
 contains in its language an acknowledgment of a 
 personal liability thereon, and gives the right to 
 enforce the obligation by the usual means of enforc- 
 ing contracts at law, it is equivalent to an express 
 promise, and gives a cumulative remedy to the cor- 
 poration besides that of forfeiture prescribed by 
 the charter. The subscriber was held liable, the 
 subscription containing a clause " that the subscri- 
 bers are held to pay to the amount which shall be 
 assessed, and the company may enforce their claim 
 thereto with expenses of collection by sale of the 
 shares, or by suit, or by either of those means." 2 
 The doctrine which is established in Massachusetts 
 also prevails in New Hampshire. 8 
 
 1 Kennebec and Portland R. R. Co. v. Kendall, 31 Maine, 470 ; Jay- 
 Bridge Corp. v. Woodman, 31 id. 573. An agreement to take and Jill a 
 certain number of shares, is held equivalent to a promise to take and pay for 
 them. Buckfield Branch R. R. Co. v. Irish, 89 Maine, 44 ; Penobscot and 
 Kennebec R. R. Co. v. Dunn, 39 Maine, 587. 
 
 ' Conn, and Pass. Rivers R. R. Co. v. Bailey, 24 Vt. 465. 
 
 ' Franklin Glass Co. v. Alexander, 2 N. H. 380 ; N. H. Central R. R. v 
 Johnson, 10 Foster, 390, 403. Eastman, J. : " Upon an examination of the 
 authorities, and upon principle, we think the true rule to be this : that 
 where a party makes an express promise to pay the assessments, he is 
 
104 CREATION OF CAPITAL 
 
 The doctrine of the decisions in Massachusetts is 
 rejected in Connecticut, where it is decided, that 
 the taking of stock in a corporation creates a con- 
 tract, express or implied, to pay for it as provided in 
 the charter, which may be enforced like an express 
 promise ; and that this construction is demanded by 
 the objects of the corporation,, which can be success- 
 fully carried into effect only by the payment of the 
 amount subscribed. The transaction between it and 
 the subscriber, is regarded in effect as an offer on its 
 part to sell him shares at a given price, and an accep- 
 tance of the same by him, which by legal implicar 
 tion amounts to a promise, and creates an obligation 
 on his part to pay the price agreed when lawfully 
 required. The position that where a new power is 
 given by a statute which also prescribes the mode 
 of its execution, those who claim the power can 
 exercise it in no other way, was regarded as inap- 
 plicable to beneficial statutes in civil cases. Regard- 
 ing the power to sue as arising from the contract of 
 
 answerable to the corporationupon such promise for all legal assessments, 
 and may be compelled to its performance by action at law before resorting 
 to a sale of the shares. It is a personal undertaking beyond the terms of 
 the charter. Where, on the other hand, he only agrees to take a specified 
 number of shares, without promising expressly to pay assessments, then 
 resort must first be had to a sale of the shares to pay the assessments before 
 an action at law can be maintained. His agreement simply to take the 
 shares, is an agreement upon the faith of the charter ; and by it alone is he to 
 be governed, so far as his shares are to be affected. He takes them upon the 
 conditions and law of the charter. They exist only by virtue of the charter, 
 and are to be governed by the provisions therein contained. Where the 
 subscription for shares contains a promise to pay the assessments, and the 
 conditions of the subscription have been performed, there is no doubt that 
 an action of assumpsit can be maintained in the first instance for all legal 
 assessments." 
 
STOCK BY SUBSCRIPTIONS. 105 
 
 subscription, this is not taken away by an affirmative 
 statute giving an additional remedy. 1 The same 
 view is adopted in New York, where the subscription 
 is construed, even when a right of forfeiture is given 
 to the company, to be a contract express or implied 
 to pay for the stock, which may be enforced by 
 suit as well as by the forfeiture. 2 Thus, it was held 
 that a subscription to the capital stock of a railroad 
 company, by which the subscriber agrees " to take 
 the number of shares in said company " affixed to 
 his name, is equivalent to an express promise to pay 
 for the stock whenever the calls shall be made, or 
 if not it, raises, an implied promise which is equally 
 efficacious with an expressed one. 8 In Alabama, 
 the company may recover upon the subscription, 
 unless this remedy is expressly or impliedly inhibited 
 by the charter. 4 In Illinois, the remedy by. for- 
 feiture, even without an express promise, seems not 
 to be considered exclusive. 5 
 
 This conflict of authorities arises from the circum- 
 stance that in one class of decisions the mere act of 
 taking shares in the capital stock is regarded as a 
 simple assent to become a member of the corpora- 
 
 1 Hartford and New Haven R. R. Co. v. Kennedy, 12 Conn. 499 ; Mann 
 v. Cooke, 20 id. 178 ; Danbury and Norwalk R. R. Co. v. Wilson, 22 id. 435. 
 
 3 Mann „. Came, 2 Barb. 294 ; Sagory v. Dubois, 3 Sandf. Ch. 294 ; 
 Northern R. R. Co. v. Miller, 10 Barb. 260 ; Troy and Boston R. R. Co. u. 
 Tibbitts, 18 id. 300. 
 
 s Ogdensburgh, Rome, and Clayton R. R. Co. v. Frost, 21 Barb. 541. 
 This doctrine was dissented from in Fort Miller and Fort Edward Plank 
 Road Co. v. Payne, 17 Barb. 567, 577, by Hand, J. 
 
 4 Beene v. Cahawba and Marion R. R. Co., 3 Ala. 660 ; Selma and Ten- 
 nesee R. R. Co., 5 id. 787. 
 
 " Peoria and Oquawka R. R. Co. v. Elting, 17 IH.,432. 
 
106 CREATION OF CAPITAL 
 
 tion, on such conditions as are expressly named in 
 the charter and subscription, and therefore involving 
 no personal liability, unless expressly stipulated; 
 while in the other, it is construed to be a contract, 
 involving from its nature personal liability to pay 
 for the shares the value fixed upon them in the 
 charter and subscription, as called for according to 
 the provisions thereof. The former class regard the 
 power of making assessments as a new and indepen- 
 dent power of the corporation, existing only by 
 virtue of express statute provision, and to be en- 
 forced only in the mode provided therein, when no 
 express promise is superadded ; while in the view of 
 the latter, it is merely a means of fixing the period 
 and amount of the payments to which the share- 
 holder assented in his subscription. In some de- 
 cisions of the latter class, it is remarked that personal 
 liability might exist where the legislature had not 
 provided any remedy by forfeiture and sale or oth- 
 erwise. 1 The former view favors the shareholder, 
 who, if he finds the corporation bids fair to be a 
 losing concern, has the option to withdraw, forfeiting 
 only what he has already paid, or nothing, if he has 
 not paid the first installment ; while the latter affords 
 the greater protection to the public, as it secures a 
 capital for the corporation, whereas if all the sub- 
 scribers refused to pay for their shares, and allowed 
 them to be sold, the stock would be fictitious, and 
 the value of the shares nominal — and thus the public, 
 
 1 See Andover and Medford Turnpike v. Gould, 6 Mass. 45 ; Kennebec 
 and Portland R. R. Co. v. Kendall, 31 Maine, 470. 
 
STOCK BY SUBSCRIPTIONS. 107 
 
 which dealt with the corporation on the faith of its 
 capital stock, might be injuriously affected. 
 
 Even in those States in which an express promise 
 is necessary to give a right of action, where the 
 statute remedy of forfeiture is given, as already seen, 
 the subscriber will be personally liable if the charter 
 gives the alternative remedies of a suit and of a for- 
 feiture. 1 
 
 The right of the company to enforce a for- 
 forfeiture is not considered as a pledge or mortgage ; 
 and its exercise operates as a satisfaction of the con- 
 tract, and excludes the company from suing upon 
 the subscriptions when the shares sell below their 
 par value, and the subscriber from recovering the sur- 
 plus if they sell above their par value. 2 But a mere 
 unsuccessful attempt to sell the shares will not de- 
 prive the company of the remedy by action; 8 
 
 In some of the States, the right is given by statute 
 recover, after the sale, the amount which the share 
 sells for less than its par value. 4 Where the statute 
 prescribes the terms on which shares may be sold 
 for the payment of assessments, and the shareholder 
 then held liable for the deficit in case they sell for 
 less than the amount of the assessments, compliance 
 with these terms is a condition precedent of the right 
 
 1 Kennebec and Portland R. R. Co. v . Kendall, 81 Maine, 470 ; Conn, and 
 Pass. Rivers R. R. Co. 24 Vt 465. 
 
 3 Small v. Herkimer Manufac. and Hydraulic Co., 2 Comst., 830 (over- 
 ruling 21 Wend. 273, and 2 Hill, 127) ; Northern R. R. Co. v. Miller, 10 Barb. 
 271, 277 ; Ogdensburg, Eome and Clayton R. R. Co. v. Frost, 21 id. 543, 544 ; 
 Allen v. Montgomery R. R. Co., 11 Ala. 437. 
 
 3 Instone v. Frankfort Bridge Co., 2 Bibb, 576. 
 
 4 Danbury and Norwalk R. R. Co. v. Wilson, 22 Conn. 456 ; K H. Cen- 
 tral R. R. Co. v. Johnson, 10 Foster, 390. 
 
108 CREATION OF CAPITAL 
 
 of the company to recover the balance ; and unless 
 the terms are complied with, the sale is illegal and 
 void. So it was held, where the notice of the sale 
 of the shares did not purport to be given by the 
 proper officer of the company, and the shares were 
 sold at private sale, instead of at public auction as 
 prescribed. 1 
 
 Where the charter prescribes the manner of col- 
 lecting the sums subscribed to "the capital stock, no 
 action can be maintained for the same, until the pre- 
 requisites have been complied with. 2 
 
 Subscriptions by Municipal Corporations. — 
 The validity of subscriptions by-municipal corpora- 
 tions, as cities, towns, counties, to the stock of rail- 
 road companies, has been passed upon by the courts 
 of several States. Their competency, by virtue of 
 their ordinary powers and without special legislative 
 authority, to contribute to such enterprises cannot 
 be sustained. 8 No attempt on their part, without 
 special legislative authority, to exercise such extraor- 
 dinary powers, has as yet been the subject of judicial 
 examination. The question has arisen upon the 
 power of the legislature to enact a law authorizing 
 municipal corporations to subscribe to the stock of 
 railroad companies, and to raise money for that pur- 
 
 1 Portland, Saoo and Portsmouth R. R. Co. v. Graham, 11 Met., 1. In 
 Massachusetts, the declaration under the statute need not aver that the de- 
 fendant was a stockholder. Amherst and Belchertown R. R. Co. o. Watson, 
 4 Gray, 61 ; Troy and Greenfield R. R. Co. v. Newton, 1 id. 544. 
 
 a Banet v. Alton and Sangamon R. R. Co. 13 111. 604 ; Ross v. Lafayette 
 and Indianapolis R. R. Co., 6 Indiana, 29*7 ; Danbury and Norwalk R. R Co. 
 o. Wilson, 22 Conn. 464. 
 
 8 But in Talbot v. Dent, 9 B. Monroe, 5S1, it is said that a city might 
 contribute its surplus funds for that purpose. 
 
STOCK BY SUBSCRIPTIONS. 109 
 
 pose by the issue of bonds, or directly by taxation. 
 The validity of their acts iu such cases has depended 
 on the power of the legislature under the state con- 
 stitution to authorize them. Notwithstanding the 
 policy of such subscriptions has been condemned by 
 the courts, the power of the legislature, in the ab- 
 sence of special restrictions, to authorize them, has 
 been generally sustained, not however, without dis- 
 senting opinions in several instances. 1 It is based 
 on well-defined and familiar principles of constitu- 
 tional law. 
 
 The legislature of a State, under the general grant 
 of legislative power, may exercise all powers which 
 are properly legislative, and not prohibited either 
 expressly or by necessary implication, by the Consti- 
 tution of the State or of the United States. Its au- 
 thority has thus a double limitation. It cannot, in 
 the first place, violate the fundamental law of the 
 State or of the United States, either by usurping 
 powers which the people have reserved to them- 
 selves, or which they have already granted to the 
 federal government. In the second place, it cannot 
 invade the co-ordinate departments of the state gov- 
 ernment, and, under color of making laws, usurp 
 judicial functions. As a limitation of the latter 
 class, its power to take the property of one citizen 
 and give it to another, has been denied, as being 
 a judicial function. 2 It is, however, entitled to a 
 
 1 See opinions on the policy of such enterprises, Sharpless v. Mayor of 
 Philadelphia, 21 Penn. State, 158, 159. 
 
 ' Sharpless v. Mayor of Philadelphia, 21 Penn. State, 160, 161, 169 ; C. 
 W. and Z. R. R. Co., 1 Ohio State, 86 ; Slack v. Maysville and Lexington R. 
 R. Co., 18 B. Monroe, 22. 
 
HO CREATION OF CAPITAL 
 
 liberal construction of its powers, and its acts are 
 not to be declared void by the judiciary, unless they 
 are clearly in conflict with the prohibitions of the 
 state or federal constitutions, either express or ne- 
 cessarily implied. The constitutionality of an act 
 may be questionable ; but it is contrary to all just 
 principles of government for one department on 
 doubtful implications to annul what another must 
 be presumed to have established on settled convic- 
 tion. The act may seem unwise and hostile to the 
 general. plan and spirit of the government; but it 
 is not within the province of the judiciary to pass 
 upon the policy of statutes, or their consistency with 
 any political theory. These considerations, except 
 so far as they may serve to indicate the intention of 
 the legislature, and aid in the interpretation of its 
 acts, are to be addressed to that department alone. 1 
 The levying of taxes for the objects of the gov- 
 ernment is within the unquestionable scope of legis- 
 lative power. The determination of what those 
 objects shall be, and who shall bear the burden of 
 the taxation, where there are no special constitu- 
 tional limitations, belongs exclusively to the legisla- 
 ture. It may levy taxes for public improvements, 
 as highways, bridges, turnpikes, aqueducts. It may 
 levy taxes for local improvements ; and it is within 
 its discretion to say how large the community, inter- 
 ested therein, to be subjected to the tax, shall be, 
 
 1 Satterlee v. Matthewson, 2 Peters, 380 ; Calder v. Bull, 3 Dall. 386 ; 
 Bennett v. Bogg, 1 Baldwin, 74; Wellington -n. Petitioners, 16 Pick. 95; 
 Commonwealth v. M'Williams, 11 Penn. State, 61 ; Police Jury v. Succession 
 of M'Donough, 8 La. An. 861 ; Sharpless v. Mayor of Philadelphia, 21 Penn. 
 State, 147, 164. 
 
STOCK BY SUBSCRIPTIONS. Ill 
 
 whether the whole State, or a county, or a city, or 
 only one of its wards, or merely a class of individu- 
 als immediately benefited thereby. As a municipal 
 corporation is a part of the government, its powers, 
 in the absence of constitutional restrictions, may be 
 abridged or enlarged by the legislature, and it may 
 be authorized by that body to levy taxes for such 
 purposes upon the property and persons within its 
 limits. 1 And it is no objection to the validity of the 
 tax, that private individuals have already become 
 personally liable for the improvements. 2 The power 
 of taxation may be abused, both in the objects for 
 which, and the persons on whom it is exercised in a 
 given case ; but the only remedy is with the people, 
 who can change the legislature. It is, from its na- 
 ture, unlimited in its extent, as the exigencies of the 
 government cannot be prescribed in advance. 8 As 
 was well said by the Court of Appeals of New York, 
 " It must be conceded that the power of taxation 
 and of apportioning taxation, or of assigning to each 
 individual his share of the burthen, is vested exclu- 
 sively in the legislature, unless this power is limited 
 or restrained by some constitutional provision. The 
 power of taxing, and the power of apportioning tax- 
 ation, are identical and inseparable. Taxes cannot 
 
 1 Norwich v. County Commissioners of Hampshire, 13 Pick. 60 ; Shitz v. 
 Berks, 6 Barb. 80; Cheaney v. Hooser, 9 B. Monroe, 330; People v. Mayor, 
 <fec, of Brooklyn, 4 Comst. 419 ; Nichols v. City of Bridgeport, 23 Conn. 189 ; 
 Moale v. Mayor, Ac, of Baltimore, 5 Maryland, 814 ; Commonwealth v. 
 M' Williams, 11 Penn. State, 61 ; Williams v. Cammack, 27 Mississ. 209 ; 
 Williams v. Detroit, 2 Mich. (Gibbs) 560. 
 
 * Thomas v. Leland, 24 Wend. 6S ; Shaw v. Dennis, 5 Gilman, 405. 
 
 8 M'Cnllochi;. Maryland,, 4 Wheat. 428, 430; Providence Bank v. Bil- 
 lings, 4 Peters, 614, 661-663. 
 
112 CREATION OF CAPITAL 
 
 be laid without apportionment ; and the power of 
 apportionment is therefore unlimited, unless it be 
 restrained as a part of the power of taxation." 1 
 
 The provision of the TJ. S. Constitution, adopted 
 in most of the States, " Nor shall private property- 
 be taken for public use without just compensa- 
 tion," is not in conflict'with the taxing power. This 
 power has been considered as one entirely independ- 
 ent, and not contemplated in the constitutional pro- 
 hibition of this clause. 2 But if taxing property is to be 
 considered as taking it in the sense of this clause, the 
 tax-payer receives his compensation as a participator 
 of the general benefit derived therefrom. In respect 
 to the mode of compensation, the right of eminent 
 domain differs from that of taxation. The payment 
 of a tax is one's contribution of his share of the pub- 
 lic burthen ; and it would be absurd to refund it to 
 him in money after it has been collected. But when 
 his property is taken in the exercise of the right of 
 eminent domain, he contributes beyond his share of 
 the public burthen, and is entitled to special com- 
 pensation. 8 
 
 ' People v. Mayor, <fcc, of Brooklyn, 4 Comst. 426, 427. 
 
 * City of Bridgeport v. Housatonio R. R. Co. 15 Conn. 476 ; Sharpless v. 
 Mayor of Philadelphia, 21 Penn. State, 166, 167 ; Williams v. Cammack, 27 
 Miasis. 209 ; Williams v. Detroit, 2 Mich. (Gibbs) 560. 
 
 s People v. Mayor, <Ste., of Brooklyn, 4 Comst. 419, 422. In this case the 
 constitutionality of an act, authorizing a municipal corporation to assess the 
 expense of grading and improving streets upon the owners and occupants of 
 lands benefited by the improvement in proportion to the amount of such 
 benefit, was in question. Ruggles, J. : " Private property may be constitu- 
 tionally taken for public use in two modes ; that is to say, by taxation and 
 by right of eminent domain. These are rights which the people collectively 
 retain over the property of individuals, to resume such portions of it as may 
 be necessary for public use. The right of taxation and the right of eminent 
 
STOCK BY SUBSCRIPTIONS. 113 
 
 Cases may be supposed where this clause of the 
 constitution might be successfully invoked to arrest a 
 gross abuse of the taxing power, as where the com- 
 munity taxed could have no possible interest in the 
 expenditures, and derive no possible benefit from 
 them. If, also, the legislature imposed a tax on one 
 town to defray the municipal expenses of another, 
 this might well be said not to be within the general 
 grant of legislative power. To justify the interpo- 
 sition of the judiciary, however, in declaring a law 
 enacted as a tax-law void, it must be for a purpose 
 in which the community taxed has palpably no 
 interest, — in a case where it is apparent that a 
 
 domain rest substantially on the same foundation. Compensation is made 
 •when private property is taken in either way. Money is property. Taxa- 
 tion takes it for public use ; and the tax-payer receives, or is supposed to 
 receive his just compensation in the protection which government affords to 
 his life, liberty, and property, and in the increase of the value of his posses- 
 sions by the use to which the government applies the money raised by the 
 tax. When private property is taken by right of eminent domain, special 
 compensation is made, for the reason hereafter stated. 
 
 ********* 
 " Taxation exacts money or services from individuals, as and for their 
 respective shares of contribution to any public burthen. Private property 
 taken for public use by right of eminent domain, is taken, not as the own- 
 er's share of contribution to a public burthen, but as so much beyond his 
 share. Special compensation is, therefore, to be made in the latter case, be- 
 cause the government is a debtor for the property so taken ; but not in the 
 former, because the payment of taxes is a duty, and creates no obligation to 
 repay, otherwise than in the proper application of the tax. Taxation oper- 
 ates upon a community, or upon a class of persons in a community, and by 
 some rule of apportionment The exercise of the right of eminent domain 
 operates upon an individual, aud without reference to the amount or value 
 exacted from any other individual or class of individuals. Keeping these 
 distinctions in mind, it will never be difficult to determine which of the 
 two powers is exerted in any given case." See C. W. & Z. R. R. Co. v. 
 Com'rs of Clinton County, 1 Ohio State, 101. 
 
 9 
 
114 CREATION OF CAPITAL 
 
 burden is imposed for the benefit of otters, and 
 where it would be so pronounced at first blush. 1 
 But this principle does not require that the public 
 improvement for which a community may be right- 
 fully taxed, shall lie entirely within its local limits. 
 If it may fairly be supposed to be tributary in a 
 special manner to the interests of the community, 
 by facilitating its commerce or otherwise, it is a law- 
 ful subject of local taxation. 2 
 
 Railroads are modern inventions ; but they come 
 legitimately within the designation of public im- 
 provements, designed to promote the general con- 
 venience and prosperity by furnishing means of 
 internal communication. As such, the State may 
 construct them itself, and having the choice of means 
 may authorize and employ a private company to 
 construct them, or uniting with it in the work con- 
 tribute to its capital stock, and raise money for 
 that purpose by taxation on the local communities 
 specially interested therein. The legislature, having 
 the control of subordinate municipal organizations, 
 and the power to enlarge or abridge their powers, 
 may make them its instruments in carrying out this 
 object, and may require or authorize them to make 
 
 1 Cheaney v. Hooser, 9 B. Monroe, 841 — 346; Talbot v. Dent, 9 id. 52fi; 
 Slack v. Maysville and Lexington R. R Co., 13 id. 31 — 33; Sharpless v. 
 Mayor of Philadelphia, 21 Penn. State, 168. 
 
 * Talbot v. Dent. 9 B. Monroe, 535, 538; Police Jury a. Succession of 
 M'Donongli, 8 La An. 341 ; Sharpless v. Mayor of Philadelphia, 21 Penn. 
 State, lVl ; Goddin v. Crump, 8 Leigh, 155; C. W. and L. K. E. Co. v. Com. 
 of Clinton County, 1 Ohio State, 98 ; Nichol v. Mayor, <fec. Nashville, 9 
 Humph. 252. 
 
STOCK BY SUBSCRIPTIONS. 115 
 
 the subscription and to levy taxes, and issue bonds 
 to meet the assessments thereon. 1 
 
 Upon these considerations municipal corporations, 
 as towns, cities, and counties, have been held author- 
 ized under the State constitution, when acting by 
 legislative authority, to subscribe to the stock of 
 railroad companies, and for the purpose of raising 
 money to meet the subscription, to levy taxes on the 
 persons and property within their limits in the 
 States of Connecticut, 2 Virginia, 8 Pennsylvania, 4 
 Ohio, 5 Kentucky, 6 Tennessee, 7 Mississippi, 8 Missouri, 9 
 Louisiana, 10 Florida ; n and recognized in Illinois. 12 
 
 1 C. W. and Z. R. R. Co. v. Com. of Clinton County, 1 Ohio State, 95-97 ; 
 Slack v. Maysville and Lexington R. R. Co., 13 B. Monroe, 22; Louisville 
 and Nashville R. R. Co. •«. County Court of Davidson, 1 Sneed, 662-667 ; 
 Sharpless 11. Mayor of Philadelphia, 21 Penn. State, 169. 
 
 a City of Bridgeport v. Housatonic R. R. Co., 15 Conn. 4*75. 
 
 * Goddin v. Crump, 8 Leigh, 120, one judge dissenting. 
 
 4 Sharpless v. Mayor of Philadelphia, 21 Penn. State, 147, two judges 
 dissenting; Moers v. City of Reading, id. 188, two judges dissenting. 
 
 s C. W. and Z. R. R. Co. v. Commissioners of Clinton County, 1 Ohio 
 State, 77 ; Steubenville and Indiana R. R. Co. v. Trustees of North Town- 
 ship, id. 105 ; Griffith v. Commissioners of Crawford County, 20 Ohio, 622. 
 
 6 Talbot v. Dent, 9 B. Monroe, 526 ; Slack v. Maysville and Lexington 
 R. R. Co., 13 id. 1, Hise, C. J., dissenting ; See Cheaney v. Hooser, 9 id. 230 ; 
 Justices of Clarke County Court v. Paris, Winchester, and Kentucky River 
 Turnpike Co., 11 id. 143. 
 
 I Niehol v. Mayor, <Sec. Nashville, 9 Humph. 252 ; Louisville and Nash- 
 ville R. R. Co. v. County of Davidson, 1 Sneed, 637. 
 
 s Strickland v. Mississippi R. R. Co., cited 27 Missis. 209, 224. 
 
 • City of St. Louis and County of St. Louis v. Alexander, 23 Missouri, 
 
 483. 
 
 10 Police Jury v. Succession of M'Donough, 8 La An. 341. 
 
 II Cotton v. County Commissioners of Leon Co., 6 Florida, 610, one judge 
 dissenting. 
 
 12 Ryder v. Alton and Sangamon R. R. Co., 13 111. 616. There is a news- 
 paper report of the case of the Ohio and Mississippi R. R. Co. •«. City of 
 Aurora, decided in Indiana by Perkins, J., affirming the constitutionality of 
 
116 CREATION OF CAPITAL 
 
 The statutes providing for municipal subscriptions, 
 have in some instances authorized the corporate 
 
 an act authorizing a municipal corporation to subscribe to the stock of a 
 railroad company. 
 
 There is also a newspaper report of a recent decision of M'Lean, J., in 
 the Circuit Court of the United States, in Wallace v. Commissioners of Knox 
 County, holding that prior to the present Constitution of Indiana, adopted 
 in 1851, an act of the legislature of that State authorizing a municipal sub- 
 scription to the stock of the Ohio and Mississippi R. R. Co. was constitu- 
 tional, and that the new Constitution, adopted since the subscription was 
 made, prohibiting municipal subscriptions, does not affect bonds with coupons 
 issued by the company after it took effect, to pay for the stock subscribed 
 for before its taking effect. 
 
 In Sharpless v. Mayor of Philadelphia, 21 Penn. State, 147, various 
 provisions of the constitution of Pennsylvania for the protection of private 
 rights were appealed to by a tax-payer of Philadelphia, seeking to enjoin 
 the authorities of the city from making subscriptions to the stock of railroad 
 companies in pursuance of a statute of Pennsylvania. The points held by 
 the court were thus recapitulated by Black, C. J., at the close of his 
 opinion : — 
 
 1. In determining whether an act of the legislature is constitutional or 
 not, we must look to the body of the constitution itself for reasons. The 
 general principles of justice, liberty, 2nd right, not contained or expressed 
 in that instrument, are not proper elements of a judicial decision upon it. 
 2. If such act be within the general grant of legislative power, that is, if it 
 be in its character and essence a law, and if it be not forbidden expressly 
 or impliedly, either by the state or federal constitution, it is valid. 3. To 
 make it void, it must be clearly not an exercise of legislative authority, or 
 else be forbidden so plainly as to leave the case free from all doubt. 4. An 
 act of Assembly, authorizing a subscription by a city to the stock of a rail- 
 road corporation is not forbidden by art. 1, § xiii. of the state constitution; 
 that section not being a restriction upon the legislative authority of the two 
 Houses, but a bestowal of privileges upon the separate branches. 5. Such 
 an act does not impair the obligation of any existing contract ; nor does it 
 attempt the impossibility of creating a contract, but merely authorizes two 
 corporations to make one if they shall see proper. 6. This is not such an 
 injury to the plaintiffs' lands, goods, or persons that they are entitled to a 
 judicial remedy for it, agreeably to sect. xi. of art. 9. It is no injury at all, 
 except on the gratuitous assumption that it is forbidden in some other part 
 of the constitution. V. It does not violate the right of acquiring, possessing, 
 and protecting property, secured by sect. 1 of art. 9. The right of property 
 is not so absolute but that it may be taxed for the public benefit. 8. This is 
 
STOCK BY SUBSCRIPTIONS. 117 
 
 authorities to make them in their own discretion; 
 and in others have required them to submit the 
 
 not a taking of private property for public use without compensation, con- 
 trary to sect. 10 of art. 9. When property is not seized, and directly appro- 
 priated to public use, though it be subjected in the hands of the owner to 
 greater burdens than it was before, it is not taken. 9. It cannot be said 
 that the plaintiffs will be deprived of their property in violation of sect, ix. of 
 art. 9. The settled meaning of the word deprive, as there used, is the same as 
 that of the word take in sect. x. 10. An act of Assembly to authorize the tak- 
 ing of private property for private use would be unconstitutional, because 
 it would not be legislation, but a mere decree between private parties. But 
 this is no taking in any sense, for any purposes, or for any uses. 11. The 
 plaintiffs have no ground of complaint against the acts of Assembly now in 
 question, except because they authorize the creation of a public debt, of 
 which they may be required hereafter to pay a part in the shape of taxes. 
 By taxation alone can any harm ever come to them. 12. If it be within the 
 scope of legislative power, with the consent of the local authorities, to 
 permit the assessment of a local tax for the purposes of assisting the cor- 
 poration to build a railroad bearing to the tax-payers the relation which 
 these railroads do, then the laws complained of are unobjectionable. 13. Taxa- 
 tion is a legislative right and duty, which must be exercised by the General 
 Assembly, or under the authority of laws passed by them. 14. The power 
 of the Assembly with reference to taxation, is limited only by their discre- 
 tion. For the abuse of it, members are accountable to nobody but their 
 constituents. 15. By taxation is meant a certain mode of raising revenue, 
 for a public purpose in which the community that pays it has an interest 
 The right of the State to lay taxes has no greater extent than this. 16. An 
 act of the legislature authorizing contributions to be levied for a, mere 
 private purpose, or for a purpose which, though it be public, is one in which 
 the people from whom they are exacted have no interest, would not be a law ; 
 but a sentence commanding the periodical payment of a certain sum by one 
 portion or class of people to another. The power to make such order is not 
 legislative, but judicial, and was not given to the Assembly by the general 
 grant of legislative authority. 11. But to make a tax-law unconstitutional 
 on this ground, it must be apparent at first blush that the community can 
 have no possible interest in the purpose to which their money is to be 
 applied. And this is more especially true if it be a local tax, and if the 
 local authorities have themselves laid the tax in pursuance of an act of the 
 Assembly. 18. If, therefore, the making of a railroad be a mere private 
 affair, or if the people of Philadelphia have manifestly no interest in the rail- 
 roads which run to and towards the city from Easton and from Wheeling, then 
 these laws are unconstitutional 19. But railroads are not private affairs. 
 
118 CREATION OP CAPITAL 
 
 question to a vote of the citizens, and if a majority 
 of votes should be given for the proposed subscrip- 
 tion, to make it. Subscriptions made in this last 
 manner, have been contested on the ground that 
 they involve an unconstitutional delegation of legis- 
 lative power by the department with which the 
 power to decide the question is placed. The legis- 
 
 Tliey are public improvements, and it is the right and duty of the State to 
 advance the commerce and promote the welfare of the people, by making or 
 causing them to be made at the public expense. 20. If the State declines to 
 make a desirable public improvement, she may permit it to be done by a 
 company ; and the fact that it is done by a private corporation, does not take 
 away its character as a public work. 21. The right of the company by 
 which it is made, to be compensated for the expense of constructing it, by 
 taking tolls for its use, though it gives the corporation an interest in it, does 
 not extinguish the interest of the public, nor make the work a private one ; 
 because, to say nothing of other advantages, the public can pay the tolls and 
 still carry and travel on it very much cheaper than without it. 22. The 
 State may therefore rightfully aid in the execution of such public works, by 
 delegating to the corporation the right of eminent domain as she always 
 does, or by an exertion of the taxing-power as she has done very often. 
 23. The right of the legislature, with the consent of the local authorities to 
 tax a particular city for a local improvement, is as clear as the right to lay 
 a general tax for any purpose whatsoever. 24. The State having the constitu- 
 tional power to create a State debt by a subscription, on behalf of the whole 
 people, to the stock of a private corporation engaged in making a public 
 work, it follows from what has been before said that she may authorize a 
 city or district to do the same thing, provided such city or district has a 
 special interest in the work to be so aided. 25. This is not a case in which 
 we can determine, as a matter of law, that the city has no interest in the 
 proposed railroad. That this is true as a matter of fact, has not even been 
 asserted in the argument. 26. The legislature andjthe councils have decided 
 that the city has an interest large enough to justify the subscription ; we 
 cannot gainsay this without declaring all interest to be flatly impossible, 
 and to do that would be absurd. 21. Finally, the authorities of the city, in 
 accordance with the charter, and with certain laws supplementary thereto, 
 are about to create a public debt for a public purpose in which the city has 
 an interest. It will be as valid and binding as if it had been legally con- 
 tracted to accomplish any other public purpose for the benefit of the city." 
 
STOCK BY SUBSCRIPTIONS. 119 
 
 lature, it is admitted, cannot delegate legislative 
 power to any other body, not even to the people 
 themselves, from whom it emanated. But it may 
 grant authority, as well as give commands ; and acts 
 done under its authority are as valid as if done in 
 obedience to its commands. The enactment of a 
 statute whose complete execution and application 
 to the subject-matter is, by its provisions, made to 
 depend on the assent of some other body, is not 
 a delegation of legislative power. The power to 
 make the law is not conferred, but only a discretion 
 as to its execution, to be exercised under the law. 
 So far as the statute confers authority and discretion 
 it is as obligatory from the first as the legislature 
 can make it. Although its practical efficiency de- 
 pends on the act of some other body or individual, 
 still, it is not derived from that discretion, but only 
 from the will of the people. 1 Legislation of this 
 class occurs wherever a charter is given or powers 
 are conferred on persons or bodies, which may be 
 exercised or not in their discretion. If the legisla- 
 ture may thus consult the judgment and wishes of 
 individuals, or of private corporations, there is no 
 valid reason why it may not consult the will of the 
 citizens of a district, who are to be specially affected 
 by the proposed act. On these grounds, acts of the 
 legislature requiring the question of a municipal 
 subscription, to the stock of a railroad corporation, 
 to be submitted to the citizens of the county, city, 
 or town, as the case may be, and authorizing and 
 
 ' See Slack v. Maysville and Lexington R. E. Co. 13 B. Monroe, 22-26. 
 
120 CREATION OF CAPITAL 
 
 requiring the corporate authorities, if the same be 
 approved by a majority of votes, to make the sub- 
 scription, and to levy taxes or issue bonds to meet 
 the same, have been generally sustained. 1 
 
 In New York, municipal subscriptions to railroad 
 companies have been held unconstitutional in the 
 Monroe Circuit of the Supreme Court. The com- 
 mon council of the city of Rochester was authorized 
 by an act of the legislature to borrow, on the faith 
 and credit of the city, three hundred thousand dol- 
 lars, to execute bonds therefor under their corporate 
 seal, and invest the money thus raised in the stock 
 of the Genesee Valley Railroad Company, by a sub- 
 scription to or a purchase of such stock, and to col- 
 lect by tax upon the real and personal estate of the 
 city, any sums necessary to defray the interest upon 
 the bonds after the application of the dividends to 
 that purpose. It was also declared in the act that 
 the sections conferring the powers aforesaid, and 
 prescribing the mode of their execution, should not 
 take effect until they should have been submitted 
 to the electors of the city, at an election to be held 
 as in the act prescribed. The act was held uncon- 
 
 1 Talbot v. Dent, 9 B. Monroe, 526 ; Slack v. Maysville and Lexington, 
 B. R. Co. 13 id. 22-29; Moers v. City of Reading, 21 Penn. State, 188; C.W. 
 and Z. R. R. Co. o. Com'rs of Clinton Co. 21 Ohio, 11 ; Police Jury ■». 
 Succession of M'Donough, 8 La. Ann. 341 ; Cotton v. County Com'rs of Leon 
 Co. 6 Florida, 610 ; Louisville and Nashville R. R. Co. v. County Court of 
 Davidson, 1 Sneed (Tenn.) 637 ; City of St. Louis and County of St. Louis v. 
 Alexander, 23 Missouri, 483. These cases were distinguished from Rice v. 
 Foster, 4 Harring. 479; Parthe v. Commonwealth, 6 Barr, 607. See Com- 
 monwealth v. Quarter Sessions, 8 Barr, 391 ; Commonwealth v. Painter, 10 
 id. 214. 
 
STOCK BY StTBSCKIPTIONS. 121 
 
 stitutional on these grounds : 1. The power of tax- 
 ation, in the absence of any express authority or 
 limitation in the constitution, was considered to be 
 limited to the public necessities, and when exercised 
 exclusively over the people of a city or other muni- 
 cipal organization, either directly by the legislature, 
 or indirectly by the municipal authorities, is con- 
 fined to such local purposes as are dire ctly incident 
 to its government and the exercise of its political 
 powers. Within this class of legitimate purposes of 
 local taxation, railroads were held not to be included. 
 2. The constitution of the State (Art. 8, § 9), en- 
 joins on the legislature to provide for the restric- 
 tion of the power of cities and villages to levy taxes, 
 borrow money, contract debts, and loan their credit. 
 This provision was held, by implication, to prevent 
 the legislature from enlarging the ordinary powers 
 of such municipal corporations ; and subscriptions for* 
 such projects as railroads were not within those ordi- 
 nary powers. 3. The act was further held uncon- 
 stitutional, as a delegation of the sovereign power of 
 legislation for the reason that the fact of its becom- 
 ing a law was made to depend on the result of a 
 popular vote. 1 
 
 1 Clarke v. City of Rochester, Am. Law Register, March, 1857, p. 287 ; 
 13 How. Pr. Rep. 204 On the last point, the court said, "The vote of the 
 city, as provided for by the act, was not to advise or control the Common 
 Council, or the exercise of their discretion in the matter of subscribing for 
 the stock and issuing the city bonds after the law had taken effect, but to 
 decide whether the act vesting the discretion in the council, should become 
 a law or not, which is the very case decided in Barto v. Himrod, 4 Selden, 
 488. It would have been different had the act of the legislature vested the 
 power in the city government, but restricted the common council in its exer- 
 cise, and made its exercise to depend upon the contingency of a favorable 
 
122 CREATION OF CAPITAL 
 
 The opinion of the judge is unsatisfactory, espe- 
 cially on the first two points, and is open to the 
 charge of declaring a law unconstitutional on doubt- 
 ful implications. It is the opinion of a single judge, 
 and as yet wants the confirmation of the Supreme 
 Court sitting at general term, and of the Court of 
 Appeals. The judgment usurps a legislative func- 
 tion, in deciding what, according to the views of the 
 judge, are proper matters for local taxation ; and 
 assumes, in violation of the settled principles, which 
 are to govern the judiciary in pronouncing on the 
 validity of the acts of a co-ordinate department of 
 the government, that because the constitution has 
 enjoined on the legislature to restrict the power of 
 municipal corporations to levy taxes, borrow money, 
 and contract debts, it has therefore prohibited that 
 body from conferring on them powers which in 
 •the view of the court are not ordinary powers. 1 
 
 The construction of a railroad by a company, 
 which may advance the interests and prosperity 
 of a municipal corporation in a special manner, is 
 a " county and corporation purpose," within the 
 meaning of a clause in the constitution of Tennessee 
 and of Florida, which gives to the legislature power 
 to authorize the several counties and incorporated 
 
 expression by the electors of the city; but the question submitted was, 
 whether the power should be conferred upon the city council to act in the 
 premises, which rendered the law unconstitutional and void." The plaintiff, 
 who had agreed to purchase the stock subscribed by the city, and was to 
 receive its bonds, was allowed to recover back from the city the amount he 
 had paid it under the contract, which was declared absolutely void. 
 
 1 Since the text was prepared, this judgment has been reversed by the 
 General Term of the Supreme Court, the law being declared constitutional, 
 and the bonds valid. 
 
STOCK BY SUBSCRIPTIONS. 123 
 
 towns to impose taxes for " county and corporation 
 purposes," so that it may authorize them to impose 
 taxes for such a project. 1 
 
 A law authorizing the subscription by a munici- 
 pal corporation to the stock of a railroad company, 
 is not unconstitutional, because it provides that a 
 tax-payer shall be entitled to his pro rata share of 
 the stock, and to have a certificate therefor when he 
 shall pay a certain amount of tax towards it. The 
 provision is not open to the objection that it makes 
 him a stockholder without his consent. The privi- 
 lege it extends is not a burden, but a benefit, of 
 which he has no reason to complain. 2 
 
 The provisions of the act authorizing a municipal 
 corporation to subscribe for shares in the stock of a 
 railroad company, and to issue its bonds in payment 
 thereof, must be complied with; and if not followed, 
 the bonds will be void in the hands of the company. 
 Thus, where the amount of the subscription was re- 
 quired by the act to be first designated, advised, and 
 recommended by the grand jury of the county to its 
 commissioners, who were themselves to make the 
 subscription, and the grand jury merely recom- 
 mended "an amount not exceeding $150,000," 
 without fixing it precisely, the amount of the sub- 
 scription was held not to be sufficiently designa- 
 ted by the grand jury, in compliance with the pro- 
 
 1 Tfichol v. Nashville, 9 Humph. 282 ; Cotton v. County Com'rs of Leon Co. 
 6 Florida, 610. 
 
 * Talbot v. Dent, 9 B. Monroe, 526 ; Slack v. Maysville and Lexington 
 R. R. Co. 13 id. 1 ; Police Jury v. Succession of M'Donough, 8 La. An. 341, 
 860; Cotton v. County Com'rs of Leon Co. 6 Florida, 611. 
 
124 CREATION OF CAPITAL 
 
 visions of the act, and an injunction was granted 
 against the railroad company, restraining it from is- 
 suing and paying out any of the bonds of the county 
 in its possession, issued under the act, and direct- 
 ing that the same he given up and canceled. 1 
 
 Where a county court having the power to make 
 the subscription, exercises the power, it is held in 
 Kentucky that it is not competent for a subsequent 
 county court to set it aside. 2 
 
 The railroad company may enforce its rights 
 against municipal officers, who refuse to comply with 
 the requirements of the statute authorizing the sub- 
 scription, by the writ of mandamus. 8 
 
 Where the municipal corporation has made a sub- 
 scription without legislative authority, to the stock 
 of a railroad company, it may be rendered valid by 
 an act of the legislature confirming it. 4 
 
 The oppressive burdens occasioned by municipal 
 
 1 Mercer County v. Pittsburgh and Erie E. R. Co. 27 Penn. State, 890. 
 The question as to the validity of the bonds in the hands of bona fide hold- 
 ers, was not passed upon. It was further held in this case that where the 
 act authorizing the subscription provided that the acceptance of its provis- 
 ions by the company should also be deemed an acceptance of another act 
 imposing certain restrictions upon it, and the latter act was repealed after 
 the recommendation of the grand jury, and before the acceptance of the sub- 
 scription by the company, the right to subscribe under the recommendation 
 ceased, and no subsequent acceptance by the company, or subscription by 
 the commissioners, was binding on the county. 
 
 2 Justices of Clarke v. P. W. and K. River Turnpike Co. 11 B. Monroe, 
 147. 
 
 ' C. W. and L. R. R. Co. v. Com'rs of Clinton Co. 1 Ohio State, 77 ; Jus- 
 tices of Clarke v. P. W. & K. River Turnpike Co. 11 B. Monroe, 164; Louis- 
 ville and Nashville R. R. Co. v. County Court of Davidson, 1 Sneed (Tenn.) 
 637. 
 
 4 City of Bridgeport v. Housatonic R. R. Co. 15 Conn. 476. 
 
STOCK BY SUBSCRIPTIONS. 125 
 
 subscriptions to the stock of railroad companies 
 have induced constitutional restrictions upon their 
 imposition in some of the States. Thus, by the new 
 constitution of Ohio, sec. 6th, art. 8 th, it is provided 
 that " The General Assembly shall never authorize 
 any county, town, or township, by vote of its citi- 
 zens or otherwise, to become a stockholder in any 
 joint-stock company, corporation, or association what- 
 ever ; or to raise money for, or loan its credit to, 
 or in aid of, any such company, corporation, or asso- 
 ciation." This provision has been held to apply to 
 future legislation only, and not to impair the author- 
 ity of a county to subscribe for the capital stock of 
 a railroad company which had been granted by a 
 law existing when the new constitution went into 
 operation ; the power of the legislature to grant the 
 authority under the old constitution being unques- 
 tioned. It was also provided in sec. 6th, art. 12th, 
 that " The State shall never contract any debt for 
 the purpose of internal improvement ;" and other 
 restrictions were made on the power of the State to 
 contract debts. These restrictions were held to oper- 
 ate on the State, but not upon counties and muni- 
 cipal organizations acting under authority of the 
 State. 1 
 
 1 Thompson v. Kelly, 2 Ohio State, 647 ; Cass v. Dillon, 2 id. 601. Two 
 judges dissenting, — 1. Because laws which could not be enacted under the 
 new constitution, although existing when it was made, and valid under the 
 old constitution, are void under the new. 2. Because restrictions on con- 
 tracting debts apply not only to the State, as an ideal abstraction uncon- 
 nected with its citizens and soil, but the State also as composed of its people 
 and territorial organizations of to wns, cities, and counties of which it is made. 
 
126 CREATION OF CAPITAL STOCK. 
 
 The same view has governed the Court of Ap- 
 peals of Kentucky, which considered the restrictive 
 provisions in the new constitution of that State as a 
 restriction merely on the future exercise of the 
 power, and distinguished between the debts of the 
 State as a distinct corporate body, and those of the 
 municipal organizations under it. 1 
 
 Distribution of Shares. — Discretionary power 
 is sometimes vested in commissioners, in case more 
 than the fixed amount is subscribed for, to distribute 
 the stock among subscribers. When exercised in 
 good faith, it is not subject to judicial control. The 
 commissioners may allot it to some subscribers to 
 the entire exclusion of others, or they may appor- 
 tion it in large amounts to themselves. It is not a 
 fraud for one person to subscribe for stock in the 
 name of another ; but it is a fraud upon the law and 
 the commissioners to do it secretly for the purpose 
 of misleading the commissioners in their distribution 
 of the stock. The legal title in such a case, as 
 between the parties, is vested in the nominal sub- 
 scriber, and the remedy of bona fide subscribers is in 
 equity to reach such stock by a bill against the nom- 
 inal holder. 2 
 
 1 Slack v. Maysville and Lexington R. R. Co. 13 B. Monroe, 1. Hise, 
 C. J., delivered a long dissenting opinion, — pp. 39-149. 
 
 2 Walker v. Devereux, 4 Paige, 229; Crocker v. Crane, 21 Wend. 211. 
 218 ; Conn, and Pass. Rivers R. R. Co. v. Bailey, 24 Vt 415. 
 
ISSUE AND TRANSFER OF STOCK. 12 Y 
 
 CHAPTER VI 
 
 ISSUE AND TRANSFER OF SHARES OF THE CAPITAL STOCK. 
 
 Shares Personal Property. — Shares in the 
 stock of a railroad company are, as a general rule, 
 regarded as personal property. They are not con- 
 sidered to be an interest in the real estate of the 
 company ; but a right to a proportion of the net 
 produce of its real and personal property and of 
 the use of the same. Therefore they are not dowable, 
 or within the provisions of the statute of frauds 
 respecting the sale of real estate or of any interest 
 therein. 1 They are now usually declared personal 
 property by statute. 
 
 Sale of Shares not belonging to the vendor. 
 — A contract upon the sale of a certain number of 
 shares of railroad stock for the transfer of the same 
 number by the purchaser to the seller on a future 
 day at a specified price, does not require the former 
 without a special provision for that purpose to keep 
 
 1 1 Greenl. Cruise, tit. 1, sec. 3 ; 2 Parsons on Cont. 315, 330-332 ; Bradley 
 v. Holdsworth, 3 M. <fc W. 422; Tempest v. Kilner, 8 C. B. 249 ; Duncuft v. 
 Albreeht, 12 Sim. & Stu. 189; Johns v. Johns, 1 Ohio State, 350; contra, 
 Price v. Price, 6 Dana, 107. 
 
128 ISSUE AND TRANSFER OF 
 
 and retransfer the same identical stock. A contract 
 for the sale of shares is not void at common law, as 
 a wagering contract where the seller not having the 
 same on hand intends to go into the market and 
 purchase them, and a real transfer is contemplated 
 by the parties. 1 
 
 Measure of Damages. — In suits between a 
 vendor and a vendee of shares for breach of con- 
 tract to purchase or deliver them, the measure of 
 damages is the difference between the contract-price 
 and the market-value at the time of the breach. 2 
 
 Mode and effect of Assignment. — The shares 
 in the stock of the company may be assigned in the 
 manner prescribed in its charter or the by-laws 
 made in pursuance thereof. 8 The title to them as 
 between the holder and the purchaser, by a proper 
 assignment thereof passes from one to the other, 
 without a conformity to the by-laws, subject to 
 such equities as exist between the holder and the 
 company at the time of the transfer, and the com- 
 pany will be liable in damages for refusing to permit 
 a transfer on its books on the purchaser's being 
 entitled to the same and producing proper evidence 
 
 1 Noyes v. Spaulding, 1 Williams (Vt), 420 ; Hibblewhite v. M'Morine, 5 
 M. <fc W. 462. 
 
 ' Shaw«. Holland, 15 M. & W. 136; 4 Eng. Rail Cas. 150; Pott». 
 Flather, 5 Eng. Rail Caa. 85 ; Tempest v. Kilner, 3 C. B. 253. 
 
 3 Angell and Ames on Corporations, oh. xvi When standing on the 
 books of the company in the name of a party with " Cashier" affixed thereto, 
 they are not per se transferred by the appointment of his successor as 
 cashier. In matter of Mohawk and Hudson R. R. Co., 19 Wend. 135. 
 
SHAKES OF THE CAPITAL STOCK. 129 
 
 of the assignment. 1 In Connecticut the transfer on 
 the books of the company is considered the origi- 
 nating act in the change of title. 2 The certificates 
 of stock, although assignable so as to pass an equit- 
 able title, are not negotiable instruments in the sense 
 of the commercial law, to the effect of shutting out 
 equitable defences existing at the time of the trans- 
 fer between the company and the holder. They are 
 not negotiable in terms, and are not designed for the 
 peculiar purposes of those instruments. Unless sur- 
 rendered to the company, and new ones issued in 
 their place, or assigned on its books or otherwise, as 
 the charter and by-laws made in pursuance thereof 
 require, the assignee takes them subject to the 
 equitable defences between the company and the 
 assignor. 8 They are not, like the bonds of the 
 company, payable to bearer with interest coupons 
 attached, which are taken by the purchaser free 
 from any equities between the company and the 
 seller. 4 The effect of an assignment of the share 
 on the liability of the subscriber for calls, has 
 already been noticed. 6 
 
 1 Grant v. Franklin Ins. Co., 8 Pick. 90 ; Stebbins v. Phoenix Fire Ins. 
 Co., 3 Paige, 350 ; Kortright v. Commercial Bank, 20 Wend. 91 ; Noyes v . 
 Spaulding, 27 Vt. 420 ; Mechanics' Bank v. N. Y. and N. H. K. R. Co., 3 
 Kernan, 624; Angell & Ames on Corporations, ch. x. §§ 353, 354; ch. 
 xvi. §§ 565, 567, 675 ; see Daly v. Thompson, 10 M. & W. 309. 
 
 a Oxford Turnpike Co. o. Bunnell, 6 Conn. 652 ; Marlborough Manufac- 
 turing Co. v. Smith, 2 id. 579 ; Northrop v. Newton and Bridgeport Turn- 
 pike Co., 3 id. 544. 
 
 3 Mechanics' Bank v. N. Y. and N. H. R. R. Co., 3 Kernan, 623-631. 
 
 * Morris Canal and Banking Co. v. Fisher, 1 Stockton Ch. 667 ; 3 Am. 
 Law Reg. 423 ; Carr v. lie Fevre, 27 Penn. State, 413. 
 
 5 Ante, ch. v., p. 77. 
 
 10 
 
130 ISSUE AND TRANSFER' OF 
 
 Fraudulent Issue of Stock. — The fraudulent 
 issue of the stock of railroad companies by their 
 agents, has given rise to questions equally important 
 and difficult, involving the law of agency and of 
 corporations. If the power to issue the certificates 
 of stock exists in the company, and has been con- 
 ferred on the agent, their validity will depend on 
 the good faith of the holder. If he dealt honestly 
 with the agent, and paid value for the stock, he is 
 entitled to the privileges of a stockholder, although 
 the agent contemplated a secret breach of trust, by 
 converting the funds received for the stock to his 
 own private use ; but, if he dealt with the agent 
 dishonestly, not paying value for the same, he is not 
 thus entitled. 1 If the corporation, although pos- 
 sessing the power, has not conferred the same on 
 the agent, either in fact or by holding him out as 
 possessing it, it is not bound by his act. As a gen- 
 eral rule, third parties are affected with notice of 
 his want of authority, either actual or implied. 2 
 There may be other circumstances which will ren- 
 der it more difficult to determine the existence, 
 extent, and form of the company's liability. It may 
 have the power, under its charter, to issue only a 
 limited number of shares and of certificates there- 
 for, and, having it, confer the power on the agent 
 to issue certificates generally. The agent may then, 
 after the issue of the full number, issue other certi- 
 ficates to parties receiving them in good faith, and 
 
 1 Mechanics' Bank v. N. Y. and N. H. R. R. Co., 3 Kernan, 611, 634, 686. 
 * North River Bank v. Aymar, 3 Hill 266 ; Parsons' Mercantile Law, 140 ; 
 Angell & Ames on Corporations, ch. ix., §§ 297, 298. 
 
SHAKES OF THE CAPITAL STOCK. 131 
 
 ignorant of the over-issue. The holders of the 
 spurious shares, if capable of being identified, it 
 would seem, could not be admitted as stockholders 
 without a violation of the charter; but still, the 
 liability of the company for the fraud of its agent, 
 and his abuse of a power which the company did 
 possess and had delegated to him, might neverthe- 
 less be maintained, on grounds of public policy and 
 the analogies of the law. If not capable of being 
 identified, they would, as a matter of fact, be stock- 
 holders, although the corporation would render 
 itself liable, by exceeding its powers, to being pro- 
 ceeded against by the state. 
 
 The leading points just stated have been elabor- 
 ately discussed in the decision of the Court of Ap- 
 peals of New York, already cited. Its importance, 
 both from the circumstances, which attracted un- 
 usual attention at the time,. and the law it affirms, 
 as well as from the diversity of judicial and profes- 
 sional opinions on the liability of the railroad com- 
 pany, or if liable, upon what grounds and in what 
 form of action, requires a more complete presenta- 
 tion of its facts and the questions raised and decided. 
 
 The act, creating the New York and New Haven 
 Railroad Company, fixed its capital stock at three 
 millions of dollars, to be divided into shares of $100 
 each, which were transferable in such manner as the 
 by-laws of the Company should direct. The entire 
 stock, thus limited, had been taken, and the certifi- 
 cates therefor issued to the holders. The Company, 
 by its by-laws, established a transfer-agency in the 
 city of New York, and provided the form and man- 
 
132 ISSUE AND TKANSFEB OE 
 
 ner of transfers of stock, which were to be made in 
 the transfer-books of the Company, and required 
 the certificate of stock proposed to be transferred 
 to be surrendered prior to the transfer being made. 
 Robert Schuyler was duly appointed its president 
 and transfer-agent in New York, holding those 
 offices from its organization till 3d July, 1854, and 
 was charged by the company with the duty of keep- 
 ing the transfer-books, and, on a transfer of stock 
 on the books from a former owner, and the surren- 
 der of the certificate therefor, of making and deliv- 
 ering to the transferee a certificate of the stock, so 
 transferred, which in the usual form stated that he 
 was entitled to so many shares transferable on the 
 books of the Company, by him or his attorney, on 
 the surrender of the certificate then given. The 
 said transfer-agent, after the entire stock had been 
 taken, on 20th April, 1854, fraudulently gave to one 
 Kyle, who paid nothing for it, a certificate, regular 
 on its face, and of the same form as the genuine 
 certificates, for eighty-five shares of stock, without 
 any surrender of a certificate of stock, and when 
 there was none which he was authorized to transfer. 
 The president, directors, and company of the Me- 
 chanics' Bank of New Haven, made a loan of 
 $12,000, in good faith, to Kyle, on his promissory 
 note, relying on, as collateral security, the certificate 
 aforesaid, having no reason to doubt its genuineness, 
 receiving from him an assignment of the stock and 
 of the certificate, with a power of attorney to their 
 cashier to transfer the same ; but the stock was not 
 transferred on the books of the Company or the 
 
SHARES OP THE CAPITAL STOCK. 133 
 
 certificate surrendered, nor a new one issued, as the 
 by-laws prescribed. Kyle, having paid but a small 
 part of his note, became insolvent. The Bank ap- 
 plied to the Company to have the stock transferred, 
 and afterwards for payment of the market value of 
 the shares; and, on the application being refused, 
 brought an action for damages in the Superior 
 Court of New York city, for such refusal, demanding 
 judgment for the amount of the par value of the 
 eighty-five shares, with interest from the date of the 
 loan to Kyle. Judgment was given in favor of the 
 Bank, for the market value of the shares on the day 
 that payment of the same was demanded ; which was 
 reversed by the Court of Appeals, with the assent 
 of all the judges, except one who took no part in 
 the decision. 
 
 The certificate was held void in the hands of the 
 Bank, and the Company not liable on account there- 
 of, on the following grounds : 
 
 1. It was fraudulently issued to Kyle, who paid 
 no value for it, and not being a negotiable instru- 
 ment, it was affected in the possession of the Bank 
 with all the equities subsisting between the Com- 
 pany and Kyle, and not having been transferred on 
 the books, according to the by-laws, the Company 
 was not estopped from denying its original validity. 
 
 2. Whether negotiable or not, its issue was be- 
 yond the authority conferred on Schuyler, either 
 actually or presumptively, and therefore could not 
 bind the Company, even to a lona-fide holder ; 
 he being a transfer-agent merely, and having no 
 power to issue a certificate, except upon the condi- 
 
134 ISSUE AND TRANSFER OF 
 
 tions precedent of a transfer on the books of shares 
 already held by a previous owner, and" the surren- 
 der of that owner's certificate ; and these conditions, 
 which created the power to issue certificates, had 
 not been fulfilled in this case, where no such certifi- 
 cate of a previous holder had been delivered up 
 and a new one issued. It was considered that the 
 Company was not responsible, because the agent 
 had issued a certificate in the usual form of those 
 which were genuine, and thus made the act appear 
 to be authorized, when it was not authorized in fact, 
 or constructively by his being held out by the Com- 
 pany as possessing it ; although, if the issue had been 
 authorized, the Company would be bound by his 
 secret breach of trust, in converting the funds re- 
 ceived for it to his own use. 
 
 3. The capital stock being limited to three mil- 
 lions of dollars, to be divided into shares of one hun- 
 dred dollars each, the number of shares was thereby 
 fixed at thirty thousand, which it was not compe- 
 tent for the Company to increase. The limitation 
 was construed to be not on the amount merely of 
 capital stock, so as to admit a larger number of 
 shares and a reduction in the value of the genuine 
 shares, which would not have the effect of increas- 
 ing the amount of capital stock. This increase in 
 the number of shares was considered a violation of 
 the organic law of the corporation, and a direct 
 invasion of the contract between it and each holder 
 of the original genuine stock, who was entitled to a 
 fixed and unalterable proportion of the capital 
 stock. This third point, it was deemed unnecessary 
 
SHARES OP THE CAPITAL STOCK. 135 
 
 to determine, as the action failed on the other 
 grounds. 
 
 4. If the Company was not bound to recognize 
 the spurious stock because its issue was unauthor- 
 ized, or beyond its corporate power, it was not 
 liable in damages for the false representation of 
 genuineness which the certificate carried with it, as 
 the agent was no more authorized to make the false 
 representation than to make the issue, and the Com- 
 ■ pany is not responsible for the fraud of agents in 
 dealings beyond the scope of their authority. It 
 was suggested that, if the corporation had received 
 the benefit of its agent's misrepresentation or fraud 
 in a transaction which was even unauthorized by its 
 charter, it might be responsible, but that there was 
 no such circumstance in the case at hand. 1 
 
 The first point, which is based on strong grounds, 
 that the certificates were not negotiable paper in 
 the sense of the commercial law, and were received 
 by the Bank subject to the defences of the Company 
 against the original fraudulent holder, was sufficient 
 to decide the case. The second ruled by the court, 
 that an agent authorized only to transfer stock, can- 
 not bind the company by the issue thereof, rests 
 upon clear and well-settled principles of the law of 
 agency. The third is expressly left by the court as 
 not determined; and notwithstanding its consum- 
 mate opinion, in the highest respect creditable to 
 
 the learning and ability of the jurist who deliv- 
 ^ i ^^ 
 
 1 Mechanics' Bank v. N. Y. and K. H. R. R. Co., 3 Kernan, 699. 
 
136 ISSUE AND TRANSFER OP 
 
 ered it, is still liable to be severely contested, 
 if not overruled, in other jurisdictions. Whenever 
 a case shall arise where the company was authorized 
 by its charter to issue a limited amount of capital 
 stock, and the agent, to whom it delegated the 
 power to issue the certificates therefor, shall issue 
 an excess of certificates to a bona-fide holder, there 
 are tendencies of judicial and professional opinion 
 indicating that the company might be held liable 
 for the fraud of the agent. The bona-fide holder of 
 a certificate, although informed in law or fact of the 
 limits imposed by the charter, not having the means 
 of ascertaining whether at the moment his certifi- 
 cate was issued, the full number allowed by the 
 charter had been issued, and receiving the same 
 from an agent who had been clothed with the 
 general power to issue certificates of stock, presents 
 a case against the company which can scarcely be 
 denied, except upon the ground that it is under no 
 circumstances liable where it transcends the strict 
 limits of its charter. This doctrine might be 
 invoked to exempt the company from all torts com- 
 mitted by its agents ; for the legislature, it may be 
 said, never authorized it to commit torts. If the 
 fraud was committed by the agent in a matter where 
 there was clearly no power given by the charter, 
 different considerations apply. But where a power 
 is given, and that power is used by the agents of 
 the company in the course of their business to 
 defraud third parties, it seems but just that a being, 
 natural or artificial, which has clothed the wrong- 
 
SHAEES OF THE CAPITAL STOCK. 13t 
 
 doer with the means of inflicting the injury should 
 suffer the consequences. 1 
 
 It is worthy of note that in the opinion in ques- 
 tion, it is intimated that if the Bank on application 
 at the oflice of the Company had bona-fide received 
 new certificates instead of those which were spurious, 
 the transfer having been effected in accordance with 
 the by-laws, it would have been estopped from 
 denying their validity ; and it is not clear that the 
 court regarded it necessary for the transfer on the 
 books — in order to have the effect of clothing the 
 Bank with rights superior to those of the original 
 fraudulent holder — to precede the purchase, or be a 
 part of the same transaction. 2 
 
 1 As illustrative of the difficulty of the question whether in any case, 
 and if in any case under what circumstances, a corporation is liable for the 
 acts of its agents which are beyond the powers conferred in the charter, 
 compare the cases of Hood v. N. Y. and TS. H. R. R. Co., 22 Conn. 608 ; per 
 Ellsworth, J. and Goodspeed v. Haddam Bank, id. 537, per Church, C. J., 
 decided at the same term ; in which conflicting views seem to be maintained. 
 In Jones v. W. Vt. Central R. R. Co., 27 Vt 399, a corporation is held liable 
 for torts committed by its agents within the apparent scope of their author- 
 ity or in pursuit of the' general purpose of the charter, or in other words 
 when the departure from the charter powers is not such as to be notice to 
 all that the agent is departing from the proper work of the corporation. See 
 Noyes v. Rutland and Burlington R. R. Co., id. 110 ; Bank of Ky. v. Schuyl- 
 kill Bank, 1 Parsons' Select. Eq. Cas. 180 ; 1 Parsons on Contracts, p. 120. 
 
 1 3 Kernan, 619, 622. 
 
138 ACQUISITION OF EIGHT OF "WAY 
 
 CHAPTER VII. 
 
 ACQUISITION BY THE COMPANY OF A RIGHT OF WAY 
 AND REAL ESTATE BY PURCHASE. 
 
 Ik this and the succeeding chapter, the mode of 
 acquiring real estate, or an interest therein, for a 
 right of way, and for the other purposes of a rail- 
 road company, will be considered. The acquisition 
 of such rights by a voluntary sale from the owner, 
 is the subject of the present chapter. The power 
 to purchase real estate for its purposes is usually 
 conferred expressly by the charter, but if not so 
 conferred by an express grant, it may be inferred 
 as incidental to other powers granted, limited in 
 each case to the necessary uses of the company. 1 
 And, having acquired the same, the company may 
 use it for all purposes necessary and proper for the 
 construction and operation of its road. 2 
 
 Construction of a Deed to the Company. — A 
 grant to the company for its purposes carries with 
 it, so far as the grantor can confer it, an authority 
 to do all that is necessary to accomplish the princi- 
 pal object. Thus, a grant of full license and author- 
 ity to locate, construct, repair, and forever maintain 
 and use a railroad over the grantor's land, and to 
 
 1 Ante, ch. ii. p. 13. 2 Ante, oh. ii. pp. 14 — 18. 
 
AND REAL ESTATE BY PURCHASE. 139 
 
 take his land therefor to the extent authorized by 
 the charter, empowers the company to lay ditches 
 in connection with culverts, which extend into his 
 land, and to deepen the bed of a mountain torrent 
 therein ; such excavations, although beyond the 
 limits of its location, being necessary to the con- 
 struction and maintenance of the road. 1 A deed of 
 land to the company will carry with it the privil- 
 eges then appurtenant to it, and parol evidence is 
 inadmissible to show that they were excluded in 
 the agreement. 2 
 
 Conveyance upon Condition. — Land may be 
 conveyed to a railroad company for its purposes, on 
 a condition precedent or subsequent ; and to which 
 class the condition is to be referred, does not depend 
 on technical words, but will be determined from the 
 nature of the transaction and the intention of the 
 parties, as it appears in the conveyance. If the act 
 or condition required does not necessarily precede 
 the vesting of the estate, but may accompany or 
 follow it, and may as well be done after as before 
 the vesting of the estate ; or if, from the nature of 
 the act to be performed, and the time required for 
 its performance, it is evidently the intention of the 
 parties that the estate shall vest, and the grantee 
 perform the act after taking possession, — then the 
 condition is subsequent. 8 The breach of the condi- 
 tion, where the grant is in fee, may be taken advan- 
 
 1 Babcock v. Western R. R. Corp., 9 Met. 553. 
 1 Vt. Central Railroad Co. v. Hills, 23 Vt., 681. 
 
 8 Parmelee v. Oswego and Syracuse K. R. Co., 2 Selden, 1i; S. C, 1 Barb. 
 699 ; Underbill v. Saratoga and Washington R. R. Co., 20 Barb. 455. 
 
140 ACQUISITION OF EIGHT OF "WAT 
 
 tage of by the grantor and his heirs, but not, it has 
 been decided, by a third person to whom he has 
 assigned his interest before or after the breach. 1 
 Conditions subsequent are not favored in law, and 
 will receive a strict construction. The omission to 
 perform the condition in a deed which vests the fee 
 simple, does not ipso facto determine the estate, 
 but only renders it liable to be defeated at the elec- 
 tion of the grantor and his heirs, to be signified by 
 some act equivalent to a re-entry at common law. 
 The forfeiture for a breach may be waived, and 
 when once waived, the court will not assist it. 
 Thus, the New York and Harlem Railroad Com- 
 pany took a deed in fee from a party, by which it 
 covenanted to make and maintain ferries between 
 the land conveyed and the adjoining land of the 
 party, with a condition that the conveyance was to 
 cease and be void, unless the railroad was com- 
 pleted through the said land before a certain day 
 therein named. It was not completed within that 
 period, but the grantee made no effort to assert his 
 right to the estate, or to do any act equivalent to 
 an entry at common law, until two years after the 
 forfeiture had occurred, and some time after the 
 completion of the road over the premises. During 
 this time he saw the Company making large expen- 
 ditures upon the land in question, and extending 
 its road. He traveled over it himself, and even 
 gave the Company notice to build the fences, which 
 they did, a year before the suit was commenced, 
 
 : Underhill v. Saratoga and Washington R. R. Co., 20 Barb. 455. 
 
AND REAL ESTATE BY PUECHASE. 141 
 
 thus recognizing that, in respect to the premises, 
 himself and the Company were owners of adjoining 
 lands. It was held that, under these circumstances, 
 he had waived the forfeiture, and could not recover 
 the premises in an action of ejectment. 1 
 
 Letters Patent to the Company. — The validity 
 of letters patent from the state to the company, 
 granting lands to it, can only be avoided by a direct 
 proceeding. 2 
 
 Damaoes for breach op Contract to convey 
 land to the Company. — Where a party who has 
 agreed to convey land, for a certain sum, to the 
 company for its road, refuses to perform the agree- 
 ment, and in a special proceeding obtains an assess- 
 ment of his damages caused by the laying out of 
 the road over his land, the measure of damages for 
 which he is liable on the breach of his agreement 
 has been held to be the excess of the sum assessed 
 in the proceeding over the price fixed in the agree- 
 ment. 8 - 
 
 Statute of Frauds. — No action at law will lie 
 against the company for the price of land sold to it, 
 where no written contract conforming to the require- 
 ments of the statute of frauds has been entered into 
 between the parties, subscribed by the vendor, 
 and assented to or accepted by the purchaser. Thus, 
 where oral negotiations for the sale of land to the 
 
 1 Ludlo-w v. N. Y. and Harlem R. R. Co., 12 Barb. 440. 
 • Parmelee v. Oswego and Syracuse R. R. Co., 1 Barb, 599. 
 " Western R. R. Corp. v. Babcock, 6 Met. 346. 
 
142 ACQUISITION OF EIGHT OF "WAT 
 
 company were held, but the parties came to no 
 agreement as to price, the owner fixing his terms, 
 and the agent of the company saying that it would 
 be obliged to pay the sum required if the owner 
 insisted on it, and he paid to the owner a certain 
 sum on account of the land, the company thereupon 
 going upon the land, and constructing its road 
 thereon, it was held that under the statute of frauds 
 of New York no action at law could be maintained 
 on the contract for the price. 1 
 
 Eights of the Company in real Estate en- 
 forced in Equity. — The company may enforce in 
 equity its equitable title to land held by its agents 
 in their own names as its trustees. 2 
 
 A valid agreement for the conveyance of land to 
 the company for the purposes of a road, will be 
 enforced in equity by a decree of specific per- 
 formance. The same defences to a suit" for specific 
 performance by the company may be made by the 
 owner, as in suits by other parties. A decree for 
 that purpose will not be granted where the terms 
 of the contract are doubtful, or it does not appear 
 that the land in reference to which the specific per- 
 formance is sought is within the contract, and that 
 the corporation has done what is necessary under 
 the contract to entitle it to a conveyance. 8 Nor will 
 it be granted where the defendant shows that the 
 agreement is void by proof of fraud or duress which 
 
 1 Reynolds v. Dunkirk and State Line R. R. Co., 11 Barb. 613. 
 
 " Church v. Sterling, 16 Conn. 388. 
 
 s Boston and Maine R, R. v. Babcock, 3 Cush. 228. 
 
AND EEAL ESTATE BY PURCHASE. 143 
 
 would avoid it at law ; or that without any gross 
 laches of his own, he was led into a mistake by any 
 uncertainty or obscurity in the descriptive part of 
 the agreement by which he in fact mistook one line 
 or one monument for another, though not misled by 
 any misrepresentation of the company, so that the 
 agreement applied to a different subject from what 
 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 con- 
 templation of the parties when it was executed ; 
 but the burden of proof is on the vendor to show 
 these facts. It is, however, no defence to a bill 
 praying for specific performance that the considera- 
 tion was inadequate, unless the inadequacy is so 
 gross, and the proof of it so great, as to lead to a 
 reasonable conclusion of fraud or mistake. And 
 where a party has stipulated, for a certain considera- 
 tion, to permit a company to construct a railroad 
 over his land, by any one of two or more routes, 
 and when the road is definitely located to convey 
 the land to the company for certain sums varying 
 according to the route chosen by it, — he cannot 
 defend against a bill for specific performance of his 
 agreement, by showing that he was induced to 
 believe, either by his own notions or the representa- 
 tions of third persons as to the preference of one 
 route over another, that the company would select 
 a route different from that finally adopted ; nor by 
 showing that it or its agents had made representa- 
 tions as to the probability that one route would be 
 adopted in preference to another, or as to the rela- 
 
144 ACQUISITION OF EIGHT OF WAT 
 
 tive advantages of each route. All such matters 
 must be considered as merged in the agreement ; and 
 if he intended to claim larger compensation in case 
 one route should be adopted rather than another, 
 he should have stipulated for the alternative in the 
 agreement. Nor can be allege a mistake which 
 arose from his not reading or hearing the agreement 
 read, when he had the means offered him of doing 
 so. It is also no defence after the road has been 
 constructed, that the company was not bound by 
 the agreement to take the land, where the party 
 agreed under seal to permit it to construct the road 
 over his own land, and after the road should be 
 definitely located to convey the same to it for a 
 certain sum with a condition in the deed that it 
 should be void when the road should cease or be 
 discontinued. 1 
 
 Where two railroad companies agreed together 
 to build a road between certain points, and to meet 
 each other at a given place, and to have the charges 
 of transportation, the meeting of the cars and of 
 the through freight trains, arranged by both com- 
 panies in order to make a through business con- 
 nection, an injunction was granted at the suit of one 
 to restrain the other from changing the guage of its 
 road so as to break up the connection contemplated. 2 
 There are decisions in England on the agreements 
 
 1 Western R. E. Corp. u. Babcock, 6 Met. 346. 
 
 2 Columbus, Piqua, and Indiana B. E. Co. v. Indianapolis and Bellefon- 
 taine E. R. Co., 5 M'Lean, 450. As to an agreement of a railroad company 
 to construct a turn-out for the , convenience of an adjacent proprietor, and 
 when it will be enforced in equity, see Windham Manuf. Co. v. H. P. and 
 F. R. R. Co., 23 Conn. 3*73. 
 
AND REAL ESTATE BY PURCHASE. 145 
 
 of railroad companies, relative to real estate and 
 interests therein, which may here be noted. A 
 company is bound by an absolute agreement for 
 the purchase of land, although it fails to obtain 
 from Parliament power to build the road for which 
 the land is purchased, or to secure the other means 
 for making the purchase desirable. 1 But other- 
 wise, if the agreement is conditional on obtaining 
 such power or means. 2 An agreement executed on 
 behalf of the company by an agent not authorized 
 under seal or otherwise, binds it if it enters upon 
 and takes possession of the land, receives the benefit 
 of the agreement, and affirms its validity. 8 Where 
 the company agrees to stop all its trains at a given 
 point in consideration of an agreement to convey 
 land to it and other stipulations, although the agree- 
 ment was made on behalf of the company by an agent 
 not authorized under seal, yet having been acted 
 upon by it, equity will interfere to restrain it from 
 running trains by that point without stopping. 4 A 
 written agreement allowing one company to run its 
 trains over the line of another for a certain time, 
 may convey an easement which is not revocable 
 without consent of both parties, the right to use 
 which will be enforced by injunction. It may be a 
 permanent grant, although not by deed, and made 
 
 * Stuart v. London and N. W. R. Co., 10 Eng. L & Eq. 57 ; Webb v. 
 Direct London, Ac. R. Co., 5 id. 161 ; 9 id. 249 ; Hawkesv. Eastern Counties 
 R. Co., 4 id. 91; 15 id. 358; 35 id. 8; but see Gage v. Newmarket R. 
 Co. 14 id. 57. 
 
 2 Preston v. Liverpool, &c. R. Co., 35 id. 92. 
 
 3 Stuart v. London and N. W. R. Co., 10 Eng. L. & Eq. 57. 
 ' Lindsay v. Great N. R. Co., 19 Eng. L. & Eq. 87. 
 
 11 
 
146 ACQUISITION BY PURCHASE. 
 
 to the company only, and not to the company and 
 its successors. 1 Equity may interfere between two 
 railway companies entitled to the joint use of a 
 station, by prescribing regulations for its manage- 
 ment ; but will only exercise such interference on 
 grave occasions. So also, it may direct a partition 
 of the station and appoint a receiver, if necessary. 
 But where provisions exist for the settlement of dis- 
 putes on such matters by arbitration, it will decline 
 to interpose until after the remedy thus provided 
 has been resorted to. 2 
 
 1 Great N. R. Co. i>. Manchester, <fcc. R. Co., 10 Eng. L. <fc Eq. 11. 
 
 2 Shrewsbury, <fec. R. Co. •«. Stour Valley R. Co., 21 Eng. L. & Eq. 628. 
 
ACQUISITION BY CONDEMNATION. 147 
 
 CHAPTER VIII. 
 
 acquisition by the company of a right of way and 
 real estate by condemnation. 
 
 Derivation of the Power to Condemn Private 
 Property for the Purposes of a Railroad Com- 
 pany. — A railroad company acquires the right of 
 way less frequently by a purchase from the owner 
 of the land than by compulsory proceedings against 
 him, provided by statute. The latter mode, where 
 the owners are numerous, is alone practicable. The 
 condemnation of private property by the State for 
 the purposes of a railroad, is made by virtue of its 
 right of eminent domain. This right, which is 
 designated as the sovereign right of the State to 
 take private property for public uses, has been re- 
 ferred by some jurists to the feudal theory of tenure, 
 according to which all private property is held from 
 the sovereign on condition that it may be resumed 
 by him, when required by his necessities. 1 By oth- 
 ers it is referred to implied compact, public neces- 
 sity, or more properly, is designated as an inherent 
 sovereign power/ 8 But from whatever source it is 
 
 1 Enfield Toll Bridge Co. v. Hartford and New Haven R. R. Co. IT Conn. 
 61 ; Beekman v. Saratoga and Schenectady R. R. Co. 3 Paige, 72, 73 ; West 
 River Bridge Co. v. Dix, 6 How. 532, 533 ; 2 Parsons on Cont. 52. 
 
 a West River Bridge Co. v. Dix, 6 How. 539,— per Woodbury, J. ; Hey- 
 ward v. Mayor of New York, 3 Selden, 324; 2 Kent, Cora. 339. 
 
148 ACQUISITION OF EIGHT OF WAY 
 
 derived, the right of the State to take private prop- 
 erty for public uses, making just compensation to 
 the owner, is unquestioned. 1 The object must be a 
 public one, to justify its exercise. If merely private, 
 the condemnation would, in effect, be taking the 
 property of one person and giving it to another, 
 which is not a legislative function. 2 
 
 The right of eminent domain may be resorted to 
 for a public use, that is, for an object which con- 
 cerns the public interest, convenience, or safety. Its 
 exercise, when reasonably required by the public 
 exigencies or accommodation, is within the discretion 
 of the legislature. It has been used for the purposes 
 of public roads, turnpikes, canals, ferries, bridges, 
 mill-sites, for the draining of marshes, and bringing 
 water into cities and villages. Railroads have uni- 
 formly been regarded by the courts to be such pub- 
 lic improvements, for the purposes of which the 
 State is justified in calling into exercise the sovereign 
 right of eminent domain. They promote the general 
 convenience, and are important auxiliaries to the 
 business and social progress of the territory through 
 which they pass, and, by the development of its 
 resources enable the State to increase its revenues. 
 They are not less public improvements because 
 operated by private corporations, which exclusively 
 
 * See Article on The Right of Eminent Domain, by Mr. J. B. Thayer, in 
 19 Law Eep. (Sept. and Oct. 1856), pp. 241, 301, in which the whole subject 
 is well digested. 
 
 a Beekman v. Saratoga and Schenectady R. R. Co. 3 Paige, 45 ; Varick v. 
 Smith, 5 id. 137 ; West River Bridge Co. v. Dix, 6 How. 537 ; Giesy v. C. W. 
 and Z. R. R. Co. 4 Ohio State, 326. 
 
AND EEAL ESTATE BY CONDEMNATION. 149 
 
 collect and enjoy the tolls for persons and mer- 
 chandise passing over them. 1 
 
 The State may employ private individuals or cor- 
 porations for the accomplishment of its ends. The 
 uses for which the power is invoked, rather than the 
 instruments employed in its exercise, are the test of 
 its existence. The purposes and advantages of the 
 road remain the same when operated by a private 
 corporation, receiving tolls from persons and prop- 
 erty carried over the same. The corporation is 
 under a legal obligation to the public to transport 
 them for a reasonable and uniform toll, and cannot 
 refuse one and accommodate another at its pleasure. 
 Iu view of its objects and obligations, the power of 
 eminent domain may be exercised by the State to 
 provide it with a right of way. 2 
 
 The right of eminent domain is only to be exer- 
 cised when required by the public necessity. This 
 necessity need not be controlling. It relates rather 
 to the nature of the property, and the uses to which 
 it is applied, than to the exigencies of the particular 
 case. Thus, if contiguous lands are required for the 
 necessary purposes of the road, they may be con- 
 demned, although others could be obtained by pur- 
 
 1 Beekman v. Saratoga and Schenectady R. R. Co. S Paige, 45 ; Varick v. 
 Smith, 5 id. 187 ; West River Bridge Co. v. Dix, 6 How. 537 ; Giesy v. C. W. 
 and Z. R. R. Co. 4 Ohio State, 326. 
 
 2 Beekman v. Saratoga & Schenectady R. R. Co. 3 Paige, 45 ; Bloodgood 
 v. Mohawk and Hudson R. R. Co. 14 "Wend. 51 ; S. C. 18 id. 9 ; Parmelee v. 
 Oswego and Syracuse R. R. Co. 7 Barb. 625 ; Raleigh and Gaston R. R. Co. 
 v. Davis, 2 Dev. & Bat. 451 ; Enfield Toll Bridge Co. v. Hartford and 
 New Haven R. R. Co. 17 Conn. 40 ; Bonaparte v. Camden and Amboy R. R. 
 Co. 1 Baldwin C. C. 205 ; Swan v. Williams, 2 Mich. (Gibbs) 427 ; Giesy v. 
 C. W. and Z. R. R. Co. 4 Ohio State, 308. 
 
150 ACQUISITION OF EIGHT OF WAY 
 
 chase. 1 The power may be used not only for the 
 appropriation of land necessary for the bed of the 
 road, but for the means of approach to its depots, 
 and also for such depots, store-houses, and work- 
 shops as are necessarily required to be contiguous to 
 the road. 3 It has been decided in Illinois, that a 
 grant to a railroad company of power " to maintain 
 and continue a railroad with a single or double track, 
 and with such appendages as may be deemed neces- 
 sary for the convenient use of the same," authorizes 
 the company to acquire land by condemnation for 
 the repair of cars and locomotives for the road ; and 
 that this power is not exhausted by the completion 
 of the road, if the increase of its business shall 
 demand other appendages. 3 The company which is 
 authorized to condemn land necessary for its pur- 
 poses, is not the final and conclusive judge of what 
 is necessary. 4 
 
 It is not necessary, in the exercise of the right of 
 eminent domain, for the state to declare specifically 
 the property to be appropriated for the railroad. 
 It may delegate in general terms the power to 
 the corporation to take the land necessary for 
 its purposes, having, as is usually the case, ap- 
 
 1 Giesy v. C. W. and Z. R. E. Co. 4 Ohio State, 326, 327. 
 
 a Nashville and Chattanoga R. R. Co. v. Co wardin, 1 1 Humph. 348. 
 
 3 Chicago, Burlington, and Quincy R. R. Co. v. Wilson, 17 111. 123. 
 Qucere. — It may well be doubted -whether where no necessity exists for the 
 location of any buildings on any particular locality, a proper ease is pre- 
 sented for the exercise of the right of eminent domain. West River Bridge 
 Co. v. Dix, 6 How. 545, 546, — per Woodbury, J. 
 
 4 South Carolina R. R. Co. *. Blake, 9 Rich. 228. But see Ex parte South 
 Carolina R. R. Co. 2 id. 434 ; Chicago, Burlington, and Quincy R. R. Co. v. 
 Wilson, 17 111. 130. 
 
AND REAL ESTATE BY CONDEMNATION. 151 
 
 pointed the termini and principal points, without 
 designating the precise land to be taken between 
 them. 1 
 
 The land lawfully appropriated by the company 
 under this power, may be used by it for all purposes 
 necessary for the proper construction and operation 
 of the road. 2 
 
 "What is subject to be Taken by virtue op the 
 Eight of Eminent Domain. — As a general rule, all 
 private property is subject to this right. It will 
 therefore only be necessary to consider those pecu- 
 liar cases which might seem exempted from its oper- 
 ation. 
 
 The public lands of the United States, not already 
 appropriated to specific national purposes, are sub- 
 ject to be condemned by the State in which they 
 lie, for the purpose of a railroad. 8 The franchise of 
 a corporation, as well as its other property, is sub- 
 ject to be condemned for the purposes of a railroad 
 company. It is an incorporeal hereditament, and, 
 as well as easements, or any kind of real or personal 
 estate, is subject to this sovereign power. The 
 state, in its exercise, may impair its value, or even 
 extinguish it, compensation being made. It may 
 authorize the company to cross a turnpike, canal, 
 or other improvement owned by a private corpora- 
 tion, or to take away its property, or even, when 
 
 1 Boston Water Power Co. v. Boston and Worcester R. R. Corp. 23 Pick. 
 326 ; White River Turnpike Co. o. Vt. Central R. R. Co. 21 Vt. 590. 
 * Brainard v. Clapp, 10 Cush. 4 ; ante, ch. ii. pp. 14-18. 
 8 U. S. v. R. R. Bridge Co., 6 M'Lean, 511. 
 
152 ACQUISITION OF RIGHT OF WAT 
 
 necessary, to destroy the franchise itself, upon mak- 
 ing compensation. Such an authority does not con- 
 flict with the clause of the U. S. Constitution, which 
 forbids any State to pass a law " impairing the ob- 
 ligations of contracts." It does not affect the ob- 
 ligation of the contract implied in the granting of 
 the franchise, but is the exercise of an independent 
 power, acting not on the contract, but on the prop- 
 erty acquired thereby. 1 
 
 1 Richmond &o. R. R. Co. v. Louisa R. R. Co., 13 How. 71 ; Lexingtoa 
 and Ohio R. R. Co. v. Applegate, 8 Dana, 289 ; Backus v. Lebanon, UN. 
 H. 19 ; Northern R. R. v. Concord and Claremont R. R., 1 Foster, 183 ; West 
 River Bridge Co. o. Dix, 6 How. 507, 534, — Daniel J. " A distinction has 
 been attempted, in argument, between the power of a government to ap- 
 propriate, for public uses, property which is corporeal, or may be said to 
 be in being, and the like power in the government to resume or extinguish 
 a franchise. The distinction thus attempted we regard as a refinement 
 which has no foundation in reason, and one that, in truth, avoids the true 
 legal or constitutional question in these causes ; namely, that of the right, 
 in private persons, in the use or enjoyment of their private property, to 
 control and actually to prohibit the power and duty of the government to 
 advance and protect the general good. We are aware of nothing peculiar 
 to a franchise which can class it higher, or render it more sacred, than 
 other property. A franchise is property and nothing more; it is incor- 
 poreal property, and is so defined by Justice Blackstone, when treating, in 
 his second volume, chap. iii. page 20, of the Rights of Things. It is its 
 character of property only which imparts to it value, and alone authorizes 
 in individuals » right of action for invasions and disturbances of its enjoy- 
 ment. Vide Bl. Comm., vol. iii. chap. xvi. p. 236, as to injuries to this 
 description of private property, and the remedies given for redressing them. 
 A franchise, therefore, to erect a bridge, to construct a road, to keep a ferry, 
 and to collect tolls upon them, granted by the authority of the state, we 
 regard as occupying the same position, with respect to the paramount 
 power and duty of the state to promote and protect the public good, as does 
 the right of the citizen to the possession and enjoyment of his land under 
 his patent or contract with the state ; and it can no more interpose any ob- 
 struction in the way of their just exertion. Such exertion we hold to he 
 not within the inhibition of the constitution, and no violation of a contract." 
 Boston and Lowell R. R. Corp. v. Salem and Lowell R. R. Co., 2 Gray, 1 ; 
 35, — Shaw, C. J. "It is fully conceded that the right of eminent domain — 
 
AND KEAL ESTATE BY CONDEMNATION. 153 
 
 Thus, where a corporation created for the purpose 
 of raising a quantity of water power, had been 
 empowered to build dams over an arm of the sea, 
 
 the right of the sovereign, exercised in due form of law, to take private 
 property for public use, when necessity requires it, of which the government 
 must judge — is a right incident to every government, and is often essential to 
 its safety. And property is nomen generalissimwm, and extends to every 1 
 species of valuable right and interest, and includes real and personal prop- 
 erty, easements, franchises, and incorporeal hereditaments. Even the term 
 ' taking,' which has sometimes been relied upon as implying something 
 tangible or corporeal, is not used in the Massachusetts Declaration of 
 Eights; but the provision is this: ' Whenever the public exigencies require 
 that the property of any individual should be appropriated to public uses, 
 he shall receive a reasonable compensation therefor.' Declaration of Eights, 
 art. 10. Here, again, the term ' appropriate' is of the largest import, and 
 embraces every mode by which property may be applied to the use of the 
 public. Whatever exists, which public necessity demands, may be thus ap- 
 propriated. It was held, in the Supreme Court of the United States, that a 
 franchise to build and maintain a toll bridge might be so appropriated ; 
 and that the right of an incorporated Company, to maintain such a bridge, 
 under a charter from a State, might, under the right of eminent domain, be 
 taken for a highway. West Eiver Bridge v. Dix, 6 How. 607. The same 
 point was afterwards decided in the same court, in the case of a railroad, 
 Eichmond, Fredericksburg, and Potomac Eailroad v. Louisa Eailroad, 13 
 How. 83. Such appropriation is not regarded as impairing the right of 
 property, or the obligation of any contract ; on the contrary, it freely admits 
 such right ; and in all just governments provision is made for an adequate 
 compensation, which recognizes the owner's right. 
 
 " Nor does it appear to us to make any difference, whether the land, 
 or any other right or interest thus appropriated, be derived directly from 
 the government, or acquired otherwise ; for the reason already stated, that 
 it does not revoke the grant, or annul or impair the contract, but recognizes 
 and admits the validity of both. If, for instance, government, through its 
 authorized agent, had contracted to convey land to an individual, and after- 
 wards, and before the title passed, it should be necessary to appropriate 
 sueh land to public uses, such taking would not impair the obligation of the 
 contract ; the individual would have the same right to compensation, for 
 the loss of his equitable title to the land, as he would have had for the land 
 itself, if the title to it had passed. If, therefore, in the great advancement 
 of public improvements, in the great changes which take place in the 
 number of inhabitants, in the number of passengers and quantity of prop- 
 erty to be transported, or in great and manifest improvements in the mode 
 
154 ACQUISITION OF RIGHT OF WAT 
 
 so as to make a full and a receiving "basin, and to 
 have the use of the land in the basins, derived 
 partly from the State, and partly from private 
 individuals by purchase, or by condemnation at an 
 appraisement, and to have the perpetual use thereof 
 for mill purposes, and to make a highway on its 
 dams and take toll thereon, the legislature, it was 
 held, had the constitutional power to authorize 
 another corporation to build a railroad across the 
 basins, making compensation for the injury thereby 
 caused to the water power, and that, as the franchise 
 was not taken, but only a portion of the land over 
 which it extended, compensation need only be made 
 for damages occasioned by the taking of the land. 1 
 So, the legislature may authorize a railroad corpora- 
 tion to cross the road of a turnpike company, or to 
 construct its road within the chartered limits of the 
 turnpike company, making compensation, which 
 may be assessed under the provisions prescribing 
 the mode of appraisal for injuries to land entered 
 upon for the purposes of the railroad. 2 
 
 The grant to a railroad company is, however, to 
 be construed strictly where it interferes with a prior 
 grant to another company or some earlier appropria- 
 
 of travel and locomotion, it becomes necessary to appropriate, in whole or 
 in part, a franchise previously granted, the existence of which is recognized 
 and admitted, we cannot doubt that it would be competent for the legisla- 
 ture, in clear and express terms, to authorize the appropriation of such fran- 
 chise, making adequate compensation for the same." 
 
 1 Boston Water Power Co. v. Boston and Worcester R. R. Corp., 23 Pick. 
 860. 
 
 Q White River Turnpike Co. v. Vt. Central R. R. Co., 21 Vt. 590. 
 
AND EEAL ESTATE BY CONDEMNATION". 155 
 
 tion to another public use, as for a highway or canal. 1 
 But this principle is not to be applied so as to defeat 
 the subsequent grant, where both uses can stand 
 together. 2 And the power to interfere with and 
 even to destroy the value of the previous grant, may 
 result from express words, or necessary implication 
 either from the language of the charter or from its 
 being shown by the application of the same to the 
 subject-matter that the railroad cannot by reason- 
 able intendment be laid in any other manner and 
 on any other line. 8 
 
 The franchise of a corporation can be taken for 
 a public use only, which is real and not merely pre- 
 tended. As this right may be exercised both for 
 and against a railroad company, it would seem 
 that its franchise could not be condemned for 
 another company, incorporated for precisely the 
 same public use, — as where both companies had the 
 same line and termini, were operated in the same 
 manner, and answered the same public purposes. 
 This would be substantially taking the property of 
 one company and transferring it to another for a 
 mere private purpose, in derogation of the first 
 grant, not justified by the right of eminent domain, 
 
 1 Ante, oh. ii., p. 10, 11 ; Packer v, Sunbury and Erie R. R. Co., 19 Penn. 
 State, 211; Chesapeake and Ohio Canal Co. v. Baltimore and Ohio R. R. Co., 
 4 G. & Johns. 1 ; West River Bridge Co. v. Dix, 6 How. 543. 
 
 ' Boston Water Power Co. ». Boston and Worcester R. R. Co., 23 Pick. 
 860. 
 
 s Springfield v . Connecticut River R. R. Co., 4 Cush. 63 ; White River 
 Turnpike Co. v. Vt. Central R. R. Co., 21 Vt. 590 ; Enfield Toll Bridge Co. 
 v. H. and N. H. R. R. Co., 11 Conn. 40, 451 ; Rex v. Pease, 4 B. & Ad. 30. 
 
156 ACQUISITION OF EIGHT OP "WAT 
 
 and beyond the proper scope of legislative power. 1 
 This limitation does not inhibit the State from 
 authorizing one company to use the tract of 
 another. 2 Nor does it exempt the track of one 
 railroad company from being taken by another rail- 
 road company, compensation being made, where the 
 objects and character of the second company are 
 so different from those of the first as that the public 
 benefit requires the condemnation. 8 
 
 The power of a legislature to grant away the 
 right of eminent domain, and thus divest a future 
 legislature of the power to take private property 
 for public uses on making compensation, has been 
 questioned. Such a power has been considered to 
 be an essential attribute of sovereignty, and of 
 which it is beyond the competency of a legislature 
 to divest its successors ; its continued exercise being 
 necessary to the existence and well-being of the 
 State. 4 But a provision in the charter that no other 
 railroad shall be authorized within a certain distance 
 from the line of the one authorized thereby, is to be 
 distinguished from a granting away of the power of 
 eminent domain. It is, like the grant of an exclusive 
 
 1 Boston Water Power Co. v. Boston and Worcester R. R. Corp., 23 Pick 
 393 ; Beekman v. Saratoga and Schenectady R. R. Co., 3 Paige, 45 ; West 
 River Bridge Co. v. Dix, 6 How., 537, — per M'Lean, J. 
 
 * Newcastle and Richmond R. R. Co. v. Peru and Indianapolis R. R. Co. , 
 3 Ind. 464. 
 
 8 Northern R. R. v. Concord and Claremont R. R., 1 Foster, 183. 
 
 * Piscataqua Bridge v. N. H. Bridge, 1 N. H. 69; Brewster v. Hough, 10 
 N. H. 138; Backus v. Lebanon, 11 id. 24; Northern R. R. Co. v. Concord 
 and Claremont R. R. Co., 1 Foster, 194, 195 ; Newcastle and Richmond R. 
 R. Co. v. Peru and Indianapolis R. R. Co., 3 Indiana, 464, 469 ; 2 Parsons on 
 Cont., 523. 
 
AND REAL ESTATE BY CONDEMNATION. 157 
 
 right, an element of the . franchise, and with the 
 franchise is subject to the right of eminent domain, 
 and may be appropriated by the State for public 
 uses when the exigencies of the public require the 
 appropriation, upon making compensation. It does 
 not prevent the construction of such a railroad 
 as is provided against, if compensation is made. 
 Thus construed, such a provision is within the scope 
 of legislative power, unless specially restrained by 
 the constitution under which it acts. It is within 
 its unquestioned competency to regulate public 
 rights, and to make grants of franchises for the 
 public benefit, and in making the grants it is within 
 its discretion to determine how extensive they shall 
 be, so as best to promote the general good. If for 
 the sake of the public convenience, and to inspire 
 confidence in a proposed public improvement as 
 well as to draw capital towards it, the legislature 
 deems it proper to guarantee that no other improve- 
 ment of a like kind shall be made within certain 
 limits so as to diminish its revenues, the provision 
 against such a competing project is valid, subject, 
 however, to yield to the public exigencies as they 
 may occur thereafter, on compensation being made 
 for the invasion or taking of the exclusive right. 1 
 
 The exclusive right is, however, not to be implied ; 
 and the company enjoying a franchise without being 
 protected by an express exclusive grant is without 
 
 1 Richmond, <fee. R. R. Co. v. Louisa R. R. Co., 13 How. 11 ■ Boston and 
 Lowell R. R. Corp. •<.. Salem and Lowell R. R. Co., 2 Gray, 1 ; Enfield Toll 
 Bridge Co. v. Hartford and New Haven R. R. Co. 40, 454 ; ante, ch. hi., pp. 
 27-35. 
 
158 ACQUISITION OF EIGHT OF "WAT 
 
 remedy if a railroad company is authorized to con- 
 struct a road so near to it as essentially to diminish 
 its revenues. This is in accordance with the well- 
 settled principle, already enforced, that the grant of 
 franchises by the public in matters which concern 
 the public interests is to be construed strictly, that 
 nothing passes by implication, and no rights are 
 taken from the public or given to the corporation 
 beyond those conveyed by the words of the grant 
 naturally and properly construed. 1 
 
 A franchise under which an exclusive right is 
 held within certain limits, may be condemned, as 
 already stated, for the purposes of a railroad com- 
 pany, upon just compensation to the company enjoy- 
 ing it. The exclusive right is a part of the franchise, 
 and may be taken, like any other property, for 
 public uses. 2 In like manner if a provision is in- 
 serted in the charter, that no railroad or improve- 
 ment of like kind shall be authorized within certain 
 limits, it is competent for the legislature to authorize 
 another railroad, although thus expressly excluded 
 by the charter, upon making just compensation to 
 the company enjoying the exclusive grant. 8 Thus, 
 in the charter of a company, granted in 1798, by 
 the legislature of Connecticut for the building of a 
 bridge over the Connecticut river between Enfield 
 and Suffield, it was provided that no person or 
 persons should have liberty to build another bridge 
 
 1 See ante, ch. iii„ pp. 20-27, and cases cited. 
 * Piecataqua Bridge v. New Hamp. Bridge, 1 N. H. 35. 
 8 Boston and Lowell R. R. Corp. ». Salem and Lowell R. R. Co., 2 Gray, 
 1 ; see, ante, this case cited and opinion of the court, ch. iii., pp. 29-34. 
 
AND REAL ESTATE BY CONDEMNATION'. 159 
 
 over that river between the north line of Enfield 
 and the south line of Windsor during the term of 
 the charter. Subsequently, in 1835, the legis- 
 lature of Connecticut during the term, granted 
 a charter to another company, authorizing it to 
 build a railroad from Hartford to the northern 
 line of the State by the most direct and feasible 
 route and thence to Springfield (Mass.) with power, 
 if it should become necessary, to erect a bridge 
 across the river, to be used exclusively for railroad 
 travel and no other passing to be permitted thereon, 
 and with a provision added that nothing contained 
 in the charter should be construed to prejudice or 
 impair any of the rights then vested in the Bridge 
 Company. The railroad was laid out in the most 
 direct and feasible route between its appointed 
 termini, and the railroad company was proceeding 
 to erect a bridge for railroad purposes only, within 
 the exclusive limits of the toll-bridge company, 
 claiming the right to do so under its charter with- 
 out making compensation, when a bill in equity was 
 brought by the latter company against the railroad 
 company, praying for an injunction and other 
 relief. It was held, that the railroad bridge was 
 such a bridge as was provided against in the charter 
 of the toll-bridge company, and its erection with- 
 out compensation to the toll-bridge company would 
 be an invasion of constitutional rights ; that the 
 special covenant not to authorize another bridge 
 between certain limits was a part of the contract 
 creating the corporation, and a part of the franchise 
 itself, which might be taken for public uses upon 
 
160 ACQUISITION OP EIGHT OF WAY 
 
 making compensation, and not without ; and that the 
 reservation in the charter of the railroad company, 
 that nothing therein contained shall be construed 
 to prejudice or impair any of the rights then vested 
 in the bridge company, did not protect it from the 
 exercise of the power of eminent domain, but only 
 secured to it equal rights with other citizens of the 
 State, — the right to have compensation awarded if 
 the franchise should be impaired by the construc- 
 tion of the road. 1 
 
 The quantity of estate in land taken, which is 
 vested in the company, is not uniform. Thus, in 
 Illinois, some of the charters vest the fee simple of 
 such land in the company f while others provide 
 that the company is merely authorized to take and 
 appropriate, or, as in the charter of the Illinois Cen- 
 tral Railroad Company, to " enter upon, and take 
 possession of, and use the land." 8 
 
 In North Carolina the fee simple is vested in the 
 company. 4 
 
 In Vermont, the Vermont Central Railroad Com- 
 pany was declared to be " seized and possessed of 
 the land." These terms were considered to vest 
 only a right of way; and, as that was sufficient for 
 its purposes, it was doubted whether the legislature 
 could deprive the owner of any greater estate and 
 vest it in the company. 5 In New Hampshire, the 
 
 1 Enfield Toll Bridge Co. „. Hartford and New Haven R. R. Co., 11 
 Conn. 40, 454. 
 
 2 Private Laws (1853), pp. 5, 55, 60 (1855), p. 246. 
 
 . a Laws 1851, p. 61 ; 2 Stat, of Illinois (Purple's ed.), 1354. 
 4 State v. Rives, 5 Iredell, 301. 
 ' Quimby v. Vt. Central R. R. Co., 23 Vt., 387. 
 
AND REAL ESTATE BY CONDEMNATION. 161 
 
 fee remains in the owner, subject to the easement of 
 the company. 1 In Iowa, the power to " appropriate 
 land," gives a right of way only, not merely the 
 ordinary right of way, but such an easement as is 
 peculiar to a railroad, and contemplates all that is 
 necessary and proper for the construction and main- 
 tenance of the railroad, including the right to locate 
 and construct, operate and repair the same, take 
 gravel, stone, and materials, and make cuts and em- 
 bankments for such purposes. 2 
 
 The right of the legislature, in the absence of a 
 constitutional restriction to that effect, to condemn the 
 fee for the purposes of a railroad company, can not 
 well be questioned. It is not less a legislative func- 
 tion to determine what estate in point of duration 
 the public exigency requires to be condemned, than 
 to determine the existence of the public exigency 
 which requires the condemnation of any estate. 8 
 
 Compensation, when to be made. — The constitu- 
 tion of the United States provides, in the fifth arti- 
 cle of the amendments, " Nor shall private property 
 be taken for public uses without just compensation." 
 This clause restricts the power of Congress, but not 
 that of the States. 4 A similar provision designed 
 to protect private rights, is generally found in the 
 
 1 Blake v. Rich, Supreme Court of New Hampshire (July T. 1856); 19 
 Law Rep. (Oct. 1856), p. 344. 
 
 ' Henry v. Dubuque and Pacific R. R. Co., 2 Clarke, 288. 
 
 3 Raleigh and Gaston R. R. Co. v. Davis, 2 Dev. and Bat. 467 ; Heyward 
 v. Mayor of New York, 3 Selden, 314; Moore v. City of New York, 4 Sand- 
 ford, 456. 
 
 4 Barron v. City Council of Baltimore, 1 Peters, 243. 
 
 12 
 
162 ACQUISITION OF EIGHT OF WAT 
 
 constitutions of the several States. The period at 
 which, in the course of its operations, compensation 
 for the private property taken by a railroad com- 
 pany for its purposes, is required to be made to the 
 owner, under this constitutional prohibition, is an 
 important consideration. According to the current 
 of authorities, in the absence of a distinct provision 
 in the constitution requiring the payment of com- 
 pensation to precede the taking of the property, the 
 assessment and payment of the compensation need 
 not precede the entry upon the land by the com- 
 pany for the construction of its road, provided 
 there is an adequate remedy afforded before such 
 entry is made for obtaining compensation, which 
 may be provided in the charter or in existing laws. 
 The payment or tender of the compensation, or an 
 appropriate provision therefor, is generally required 
 to precede an appropriation of the owner's property 
 for the road. 1 
 
 1 Bloodgood v. Mohawk and Hudson R. B. Co., 14 Wend., 61; S. C, 18 
 id., 9 ; Smith v. Helmer, 7 Barb. 416 ; Gould v. Glass, 19 id., 190; Rexford 
 v. Knight, 1 Kernan, 308 ; Thacher v. Dartmouth Bridge, 18 Pick., 601 ; 
 Raleigh and Gaston R. R. Co. i>. Davis, 2 Dev. & Batt., 451 ; Tuckahoe Canal 
 Co. v. Tuckahoe R. R. Co., 11 Leigh, 11; Pittsburgh ■„. Scott, 1 Penn., 309; 
 Symonds v. Cincinnati, 14 Ohio, 174; Hatch v. Vt. Central R. R. Co., 25 Vt. 
 66 ; Smith v. IT Adam, 3 Mich. 506 ; People ex rel. Green v. Mich. Southern 
 R. R. Co., 3 Mich. 496 ; Rubottom v. M'Clure, 4 Blackf. 505 ; Hankins v. 
 Lawrence, 8 id. 266 ; New Albany and Salem R. R. Co. v. Conelly, 1 Indi- 
 ana, 32 ; Hamilton v. Annapolis and Elk Ridge R. R. Co., 1 Md. Ch. Dec. 
 107. In Bonaparte v. Camden and Amboy R. R. Co., 1 Baldwin C. C. 205, it 
 was held that this provision for compensation may be in a subsequent law ; 
 and that an act taking private property for public use is not void because 
 it doeB not provide compensation or a mode of ascertaining it ; but that its 
 execution will be enjoined until such provision is made, and the com- 
 pensation paid ; and the compensation should be made simultaneously with 
 the appropriation ; see Sedgwick on Stat, and Const. Law, pp. 525-528. 
 
AND REAL ESTATE BY CONDEMNATION. 163 
 
 Preliminary surveys and explorations for the pur- 
 pose of layiDg out the road, may be authorized by 
 the legislature without previous compensation to 
 the owner of the land over which they are made, or 
 any provision therefor. They do not amount to a 
 taking of private property, and are not within the 
 purview of the constitutional prohibition. The 
 estate is not thereby taken, or the owner deprived 
 of its use and enjoyment. The entry must, how- 
 ever, to be authorized on this principle, be for a 
 temporary and reasonably necessary purpose, and 
 accompanied with no unnecessary damage. 1 
 
 The constitutional provision, it has been decided, 
 does not require the payment of the compensation 
 to precede an exclusive occupation of private prop- 
 erty temporarily, as an incipient proceeding to the 
 acquisition of a title or easement, but only the acqui- 
 sition itself of the title or easement, or a permanent 
 appropriation. But if compensation is not made 
 or tendered within a reasonable time after the 
 exclusive occupancy has commenced, the right to 
 continue it will cease, and the parties continuing it 
 will be liable as trespassers. 2 
 
 1 Bloodgood v. Mohawk and Hudson R. E. Co.. 14 Wend. 51; S. C, 18 
 id. 9 ; Polly v. Washington and Saratoga B. K. Co., 9 Barb. 449 ; Winslow 
 v. Gifford, 6 Cush. 32*7 ; Bonaparte v. Camden and Amboy R. R. Co., 1 Bald- 
 win C. C. 205. 
 
 ' In Bloodgood v. Mohawk and Hudson R. R. Co., 14 Wend. 51, it was 
 considered that after an unreasonable delay in making compensation the 
 owner would be entitled to an ample remedy ; but whether the parties act- 
 ing under color of legislative authority were trespassers or not, was not 
 decided. In Cushman v. Smith, 34 Maine, 247, the following conclusions 
 were arrived at by the court: "1. The clause in constitutions which pro- 
 hibits the taking of private property for public use, was not designed to 
 operate, and it does not operate, to prohibit the legislative department from 
 authorizing an exclusive occupation of private property temporarily, as an 
 
164 ACQUISITION OF EIGHT OF "WAY 
 
 Where the property is taken by the State and 
 the law appropriating it for public use provides an 
 adequate remedy, the State may afterwards convey 
 the land to a railroad company without the claim 
 for damages being a lien on the land. 1 The law 
 itself must provide a remedy, the constitution in 
 this respect not executing itself. 2 
 
 In some of the States, as in Mississippi, Ohio, 
 Maryland, and Arkansas, the constitution prohibits 
 the taking of private property for public use, " with- 
 out compensation first made." Under such a pro- 
 vision the compensation, or a tender thereof, must 
 precede the entry for the purpose of constructing 
 the road. 8 But this provision does not require the 
 compensation to precede an entry for the purpose 
 of surveying and laying out the road. 4 And where 
 
 incipient proceeding to the acquisition of a title to it or an easement in it. 
 (2.) It was designed to operate, and it does operate, to prevent the acquisi- 
 tion of any title to land or to an easement in it, or to a permanent appropri- 
 ation of it from an owner for public use, without the actual payment or ten- 
 der of a just compensation for it. (3.) That the right to such temporary 
 occupation as an incipient proceeding, will become extinct by an unreason- 
 able delay to perfect proceedings, including the actual payment or tender 
 of compensation to acquire «•■ title to the land or of an easement in it. 
 (4.) That an action of trespass guare clausum may be unauthorized to re- 
 cover damages for the continuance of such occupation, unless compensation 
 or a tender of it be made within a reasonable time after the commencement 
 of it. (5.) That under such circumstances, an action of trespass, or an ac- 
 tion on the case may be maintained to recover damages for all the injuries 
 occasioned by the prior occupation.'* See Levering v. Phil., Germantown, 
 Ac, R. R. Co., 8 W. <fe S. 459; Raleigh and Gaston R. R. Co. v. Davis, 2Dev. 
 & Bat. 464. 
 
 1 People ex rel. Green v. Michigan Southern R. R. Co., 3 Mich. 496. 
 
 * Lamb v. Lane, 24 Ohio, 16 1 ?. 
 
 " Doughty v. Somerville and Easton R. R. Co. v. Lewis, 3 Halst. Ch. 61 ; 
 Thompson v. Grand Gulf R. R. and Banking Co. 3 How. (Miss.) 240 ; Stew- 
 art v. R. R. Co. 7 S. & M. 568; Ex parte Martin, 13 Ark. 198; Roberts v. 
 Williams, 16 id. 198 ; Sedgwick on Stat, and Const. Law, pp. 494-498. 
 
 * Doughty v. Somerville and Easton R. R. Co. 3 Halst. Ch. 51. 
 
AND HEAL ESTATE BT CONDEMNATION. 165 
 
 the company constructed its road on a party's ]and 
 with his consent, it was under its charter allowed to 
 acquire title subsequently by instituting the proper 
 proceedings, and making compensation. 1 
 
 A general statute, or the charter in some cases, 
 provides that the company shall not take possession 
 of the land for the construction of its road until 
 it has paid or tendered compensation. 2 
 
 The title to the land becomes vested in the 
 company when it has complied with the provisions 
 of the statute, and paid or deposited the compen- 
 sation as the law provides. 8 An act of the legis- 
 lature, passed before such payment or tender, 
 ordering a new appraisement has been held consti- 
 tutional, the performance of the conditions being 
 necessary to the vesting of the title to the land, and 
 the act therefore not interfering with any vested 
 rights. 4 The right of the owner to the damages, 
 becomes vested when the right of the company to 
 the land has vested. The right of the company 
 to the land does not, under the statutes, become 
 vested until the compensation has been paid or 
 deposited in the manner provided. And where the 
 
 1 Coster v. N J. R. E. and Transportation Co. 3 Zabris. 22*7 ; 4 id. 
 730. 
 
 a Milwaukee and Miss. R. R. Co. v. Eble, 4 Chandler (Wis.) 72 ■ Ellicott- 
 ville, <fee., Plank Road Co. v. Buffalo and Erie R. R. Co. 20 Barb. 644 ; 
 Swan's Stat, of Ohio (1854), p. 201. 
 
 s Bloodgood v. Mohawk and Hudson R. R. Co. 18 Wend. 10, 19 ; Beek- 
 man v. Saratoga and Schenectady R. R. Co. 3 Paige, 45, 76; Wheeler v. 
 Rochester and Syracuse R. R. Co. 12 Barb. 227 ; Crownerjj. Watertown and 
 Rome R. R. Co. 9 How. Pr. 457 ; Montgomery and W. P. R. R. Co. «,. Wal- 
 ton, 14 Ala. 207 ; Schuyler v. Northern R. R. Co. 3 Whart. 555. 
 
 4 Baltimore and Susquehanna R. R. Co. v. Nesbit, 10 How. 395. See 
 Hudson River R. R. Co. v. Outwater, 3 Sandf. 689. 
 
166 ACQUISITION OF EIGHT OF WAT 
 
 company, before fulfilling these conditions prece- 
 dent, abandons its route under authority of statute, 
 without entering on the land to construct the road, 
 the owner cannot enforce a claim to the damages 
 assessed in the award which has been confirmed. 1 
 
 Mode of Determining the Compensation. — A 
 special remedy is uniformly provided by statute for 
 the appraisement of the damages to parties injured 
 by the construction of a railroad. County commis- 
 sioners, special railroad commissioners, viewers, or 
 some other board of appraisers, are designated for 
 this purpose. The general provision in the federal 
 and state constitutions, securing the right of trial by 
 jury, does not prohibit a special tribunal for the 
 assessment of damages to parties, where property is 
 taken by the state under the power of eminent do- 
 main. It relates to the trial of issues of fact in civil 
 and criminal cases, and not to mere collateral ques- 
 tions of damages, in which no suit is pending. 2 
 Where the constitution, as that of Ohio, specially 
 provides that the damages shall be assessed by a 
 jury, a jury consisting of twelve persons is presumed 
 to be intended. 3 The clause in the constitution of 
 
 1 Stacey v. Vt. Central R. R. Co. 1 Williams, 39 ; Crowner v. Watertown 
 and Rome R. R. Co. 9 How. Pr. 457. See English eases cited in 1 Am. Rail. 
 Cases, 47. 
 
 * Beekman v. Saratoga and Schenectady R. R. Co. 3 Paige, 75 ; Bonaparte 
 v. Camden and Amboy R. R. Co. 1 Baldwin C. C. 205 ; Hickox v. Cleveland, 8 
 Ohio, 543 ; Raleigh and Gaston R. R. Co. „. Davis, 2 Dev. & Batt. 451. 464. 
 When land is taken by the State for its purposes, a board of commissioners 
 appointed by the governor, was held constitutional. People ex rel. Green v. 
 Michigan Southern R. R. Co. 3 Mich. 496 ; Smith v. MAdam, 3 id. 506. 
 
 a Lamb v. Lane, 4 Ohio State, 167. 
 
AND REAL ESTATE BY CONDEMNATION. 167 
 
 New York, providing for a jury to assess the dam- 
 ages, is construed not to import a tribunal consist- 
 ing of twelve men acting on a unanimous determ- 
 ination, but to be used to describe a body of jurors 
 of different numbers, and deciding by majorities or 
 otherwise, as the legislature in each instance shall 
 direct. 1 
 
 The franchise of a bridge or turnpike corporation 
 may, under the provisions of the statute, be within 
 this remedy, and the appraisers authorized to assess 
 damages for the same when taken or impaired by 
 the railroad company. 2 It may also be availed of 
 by the State for obtaining damages to property held 
 by it, as a body corporate, where, under the same 
 circumstances, a citizen would have a claim for com- 
 pensation which he might enforce under it. 8 The 
 State may, however, grant to the company the right 
 to take its own property without requiring compen- 
 sation. 4 
 
 In a proceeding to assess the damages, the special 
 tribunal appointed for that purpose, as the commis- 
 sioners or a jury, it has been held, may pass upon 
 the title of the claimant. In Massachusetts, he is 
 entitled to have the judgment of the county commis- 
 sioners on this point revised by a jury. 6 
 
 1 Cruger v. Hudson Kiver R. E. Co. 2 Kernan, 190. 
 
 " White River Turnpike Co. v. Vt. Central R. R. Co. 21 Vt. 690 ; En- 
 field Toll Bridge Co. a. Hartford and N. H. R. R. Co. 17 Conn. 454. 
 
 8 Commonwealth v. Boston and Maine R. R. 3 Cush. 25. 
 
 4 Indiana Central R. R. Co. v. State, 3 Ind. 421. 
 
 • Directors of Poor of York County v. Wrightsville and York R. R. Co. 
 7 W. & S. 236 ; Carpenter v. County Commissioners of Bristol, 21 Pick. 258. 
 But in England, the arbitrators or sheriff's jury have no jurisdiction to in- 
 
168 ACQUISITION OF EIGHT OF WAY 
 
 The special remedy thus provided by statute is 
 exclusive, and an action at common law cannot be 
 resorted to for injuries which are included within it. 
 The assessment of damages by such a tribunal is a 
 bar to an action for all injuries which could have 
 been properly included by them in their award. 
 They afford the proper remedy for the appraisement 
 of the damages for all acts which the company may 
 rightfully do by virtue of legislative authority, and 
 for which it is made liable, whether it admits or de- 
 nies its liability, and whether the injury is actionable 
 at common law or only remediable by virtue of the 
 statute. The question is not afterwards open for 
 consideration, in a suit against the company for an 
 injury, whether tbey took into consideration a par- 
 ticular injury ; as it was their duty to do so, and 
 the performance of their duty, except in a direct 
 proceeding to set aside their award, or on appeal, is 
 to be conclusively presumed. The award is a judi- 
 cial act, and unless appealed from becomes like a 
 judgment at law, res judicata, and cannot be collat- 
 erally impeached. 1 
 
 quire into hia title. Eegina v. London and N. W. E. Co. 25 Eng. L. and 
 Eq_. SI. 
 
 1 Masons. Kennebec and Portland R. R. Co. SI Maine, 215; Vt. Cen- 
 tral R. R. Co. v. Baxter, 22 Vt. 365 ; Sabin v. Vt. Central R. R. Co. 25 id. 
 363 ; Aldrich v. Cheshire R. R. Co. 1 Foster, 206 ; Clark v. Boston, Concord, 
 and Montreal R. R. Co. 4 id. 114; Dearborn v. Same, 4 id. 179; Dodge v. 
 County Commissioners of Essex, 3 Met. 380; Eurniss v. Hudson River R. R. 
 Co. 5 Sandf. 551 ; Yeiser v. Phil, and Reading R. R. Co. 8 Barr. 366 ; Win- 
 chester and Potomac R. R. Co. v. Washington, 1 Rob. (Va.) 67 ; M'Laughlin 
 ■is. Charlotte and S. C. R. R. Co. 5 Rich. 583 ; Hueston v. Hamilton and Eaton 
 R. R. Co. 4 Ohio State, 685 ; Null t. White Water Canal Co. 4 Ind. 431 ; 
 Lafayette and Indianapolis R. R. Co. v. Smith, 6 id. 249 ; New Albany and 
 
AND REAL ESTATE BY CONDEMNATION. 169 
 
 The appraisers are to presume that the company 
 will execute its work properly, and not transgress 
 its powers, and they cannot award damages on the 
 supposition that it will be guilty of a breach of 
 duty. They are only authorized to assess the dam- 
 ages for those acts which are authorized by statute. 
 Therefore the special proceeding will not bar the 
 remedy at common law where the company trans- 
 cends its authority or negligently and improperly 
 performs its work, so as to occasion unnecessary 
 damage. 1 
 
 "Where a party claims damages against the com- 
 pany under the statute remedy, it has been held to 
 be estopped from setting up that it had no authority 
 to do the work involving the damage, on the ground 
 that it had not taken the required preliminary steps ; 
 and where the work was done at the same time that 
 the road was constructed, and as a part of it, it is 
 estopped from denying that the work itself was au- 
 thorized by the charter. 2 
 
 Before the company can proceed to condemn pri- 
 
 Salem R. R. Co. u. Conelly, 7 id. 36 ; Leviston v. Junction R. R. Co. 7 id. 697. 
 This remedy is held in Georgia to be cumulative. Carr v. Georgia R. R. Co. 
 1 Kelly, 524. This subject will be again considered in chapter x. 
 
 1 Mason v. Kennebec and Portland R. R. Co. 31 Maine, 215; Rogers v. 
 Same, 36 id. 319 ; Vt. Central R. R. Co. v. Baxter, 22 Vt. 365 ; Hatch v. 
 Vt. Central R. R. Co. 25 id. 63 ; Sabin v. Same, 25 id. 363 ; Whitcomb v. 
 Same, 25 id. 69 ; Dearborn v. Boston, Concord, and Montreal R. R. Co. 4 
 Foster, 187 ; Dodge v. County Commissioners of Essex, 3 Met. 383 ; Propri- 
 etors of Locks and Canals v. Nashua and Lowell R. R. Co. 10 Cush. 388 ; 
 Hazen v. Boston and Maine R. R. Corp. 2 Gray, 574 ; Winchester and Poto- 
 mac R. R. Co. )■. Washington, 1 Rob. (Va.) 67 ; Crawfordsville R. R. Co. ». 
 Wright, 5 Ind. 252 ; Ex parte Eyre, 3 Nev. & Man. 622 ; 1 Am. RaiL Cas. 
 554, 655, notes. 
 
 * Parker v. Boston and Maine R. R. 3 Cush. 107. 
 
170 ACQUISITION OF EIGHT OF WAT 
 
 vate property, it must perform the conditions which 
 the statute requires to precede the condemnation. 
 Thus, if required to obtain from the legislature a law 
 approving its route and termini, this law must first 
 be obtained. 1 
 
 In the absence of fraud, an action cannot subse- 
 quently be maintained for damages, on the ground 
 that, at the time of the assessment, the company 
 represented that the road was to be constructed in 
 a certain manner, whereas it has been constructed 
 in a manner more injurious to the owner. It was 
 so decided in a case where it was alleged that 
 the damages were assessed by the commissioners, 
 upon a representation by the company, through its 
 agents, that the railroad was to be constructed so 
 as to cross the plaintiff's premises, with a csitain fill 
 or embankment, and that the highway was to be so 
 raised as to pass over the railroad on a level, and 
 that after the time had passed for au appeal from 
 their award, the railroad was built with a certain 
 fill or embankment greater than the one repre- 
 sented, and that the highway was not r used to a 
 level with the railroad, by reason of which he 
 sustained greater damages than what had been 
 awarded him. 2 Any omission to assess damages, 
 which the commissioners were bound to assess, if 
 relied upon in a proceeding to set aside the award, 
 must appear affirmatively. 8 
 
 1 Gillenwater v. Mississippi and Atlantic R. R. Co. 13 111. 1. 
 
 * Butman v. Vt. Central R. R. Co., 2"7 Vt. (1 Williams), 500. Whether 
 the plaintiff had a remedy in equity, or by an action on the special undertak- 
 ing, was not decided. 
 
 s Coster v. N. J. R. R. and Transportation Co., 4 Zahris. 730. 
 
AND REAL ESTATE BY CONDEMNATION. 171 
 
 If the act appropriating private property for the 
 purposes of a railroad does not comply with the 
 clause of the constitution, on account of the absence 
 of a provision for compensation or otherwise, it is, 
 according to the better authorities, void ; no right 
 of taking exists against the owner, who may avail 
 himself of the common-law remedies against persons 
 assuming to act under it. 1 And where the acts of 
 the company, under color of their charter, will 
 result in irreparable injury to a party whose prop- 
 erty is unlawfully taken by it, he will be entitled 
 to have an injunction issued against it. 2 An in- 
 junction will be granted at the suit of a company 
 enjoying a franchise, exclusive within certain limits, 
 against a company proceeding to disturb the same 
 under color of a legislative act, which does not 
 assume to provide compensation for the injury to 
 the franchise, or otherwise to conform to the con- 
 ditions imposed by the constitution of the State on 
 the exercise of the right of eminent domain. 8 
 
 The liability of the company for torts, in actions 
 at common law, will be more fully considered in a 
 succeeding chapter. 
 
 Injuries to be Compensated in the Assessment 
 of Damages. — The statute provision for assessing 
 
 * Thacher v. Dartmouth Bridge Co., 18 Pick. 501 ; Boston and Lowell 
 E. R. Corp. v. Salem and Lowell E. R. Co., 2 Gray, 36, 37 ; Cushman v. 
 Smith, 34 Maine, 247 ; Seneea Road Co. v. Auburn and Rochester R. R. Co., 
 6 Hill, 170 ; Hankins v. Lawrence, 8 Blackf. 266. See M'Lauchlin v. Char- 
 lotte and S. C. R. R. Co., 5 Rich. 583. 
 
 ' Bonaparte v. Camden and Amboy R. R. Co., 1 Baldwin, C. C. 205. 
 
 " Boston and Lowell R. R. Corp. v. Salem and Lowell R. R. Co., 2 
 Gray, 1, 27. 
 
172 ACQUISITION OF EIGHT OF WAY 
 
 damages against a railroad company may be more 
 or less comprehensive, or it may simply require 
 compensation, where it is imposed by the State con- 
 stitution as a condition to the exercise of the right 
 of eminent domain. Before reviewing the decisions 
 under the statutes of the several States, providing 
 compensation, it is proper to consider what injuries 
 come within the constitutional prohibition against 
 taking private property for public uses without just 
 compensation ; or, in other words, what acts under 
 authority of the State, affecting private property, 
 are equivalent to taking it within the meaning of 
 the clause. 
 
 Pkoperty actually taken. — The owner is, with- 
 out question, entitled to compensation for land and 
 materials appropriated for the permanent uses of 
 the company, estimated at their fair market value. 1 
 
 Injuries to Franchises. — It has already been 
 stated, as settled law, that a grant of franchises 
 affecting public interests is to be construed strictly, 
 and that nothing passes to the grantee beyond what 
 is required by its terms. There is no. implication 
 in a grant, to a turnpike, canal, or railroad com- 
 pany, that no other like improvement shall be 
 authorized which may diminish or destroy its profits. 
 
 1 Boston R. R, Co. v. Lee, 13 Barb. 169 ; Canandaigua and Niagara Falls 
 R. R. Co. v Payne, 16 id. 273 ; Giesy „. C. W. and Z. R. R. Co., 4 Ohio 
 State, 331 ; Phil, and Reading R. R. Co. v. Gilson, 8 Watts, 243 ; Sater v. 
 Burlington and Mt. Pleasant Plank Road Co., 1 Clarke (Iowa), 386 ; Henry 
 v. Dubuque and Pacific R. R. Co., 2 id. 288. 
 
AND REAL ESTATE BY CONDEMNATION. 1*73 
 
 A company owning a canal, turnpike, or railroad, 
 which has not protected itself by an exclusive 
 grant within certain limits, will not be entitled to 
 compensation, on the building of a railroad by 
 whose competition the value of its franchise is 
 essentially depreciated or destroyed. 1 But where 
 it is provided in the charter of a company that 
 no other improvement of a certain kind shall be 
 authorized within certain limits, the exclusive grant 
 is a part of its franchise, and the company will be 
 entitled, under the constitution, to compensation 
 upon the construction of such an improvement 
 within those limits. 2 
 
 Consequential Injuries. — Consequential injuries 
 not actionable at common law, do not amount to a 
 taking of private property, so as to require compen- 
 sation under the constitutional restriction. A party 
 suffering incidental injury from the reasonable use 
 by another of his property — which, in technical 
 phrase, is damnum absque injuria — is without 
 remedy at common law. The restriction is inter- 
 preted as designed not to give new rights, but to 
 protect those already existing. 8 As a general rule, 
 
 1 Ante, ch. iii. pp. 20 — 26} ch. viii. p. 157, 158. 
 
 * Enfield Toll Bridge Co. v. Hartford and N. H. R. R. Co., 17 Conn. 40, 
 454 ; Boston and Lowell R. R. Corp. v. Salem and Lowell R. R. Co., 2 Gray, 
 1 ; ante, ch. iii. pp. 27 — 35, ch. viii. p. 158, 159. 
 
 8 Radcliffe v. Mayor, <tc, Brooklyn, 4 Comst. 195 ; Hatch v. Vt. Central 
 R. R. Co., 25 Vt. 49, 61 ; Richardson v. Same, 25 id. 465 ; Gould v. Hudson 
 River R. R. Co., 10 Barb. 616 ; Monongahela Nav. Co. v. Coons, 6 W. and S. 
 114 ; Case of Phil, and Trenton R. R. Co., 6 Whart. 25 ; Henry v. Pittsburg 
 and Allegheny Bridge Co., 8 id. 85 ; Mifflin v. Penn. R. R. Co., 16 Penn. State, 
 193- Reitenbaugh v. Chester Valley R. R. Co., 21 id. 100; Sunbury and 
 
174 ACQUISITION OP EIGHT OF WAY 
 
 a party is not liable at common law for damages 
 which result to another from the reasonable use of 
 his own property. Where there are no prescrip- 
 tive rights, and the acts complained of do not 
 amount to a nuisance, he may make erections and 
 excavations on his own premises, and conduct any 
 kind of business thereon, which may consequentially 
 injure his neighbor, as, by stopping his lights, or 
 weakening the foundations of his buildings, or 
 otherwise depreciating their value by the nature of 
 the erections or business, without subjecting himself 
 to liability, in the absence of negligence or want of 
 skill. 1 This principle has been applied to injuries 
 done by railroad companies. Thus, they have been 
 held not responsible for fires occasioned by the 
 issuing of sparks from their engines, in the absence 
 of proof of negligence or want of care and skill. 2 
 So, excavations and embankments made by the 
 company in building its road in a street in front 
 of a party's store, whereby access to it by cus- 
 tomers and teams is obstructed, and rain water is 
 admitted to the basement, are not injuries for which 
 
 Erie R. R. Co. v. Hummell, 27 id. 99 ; Cushman v. Smith, 34 Maine, 257, 
 258 ; Rogers v. Kennebec and Portland R. R. Co., 35 id. 323 ; Whittier v. 
 Same, 38 id. 26 ; Hickox v. Cleveland, 8 Ohio, 543 ; Bradley v. N. Y. and 
 N. H. R. R. Co., 21 Conn. 294, 304 ; Clark v. Saybrook, 21 id. 313. But 
 see Fletcher v. Auburn and Syracuse R. R. Co., 25 Wend. 462 ; Mahon v. 
 Utica and Schenectady R. R. Co., Lalor's Sup. to Hill and Denio, 156. 
 
 1 Radcliffe v. Mayor, <fec, of Brooklyn, 4 Comst. 196 ; Burroughs v. Hous- 
 atonic R. R. Co, 15 Conn. 124; Phila. and Reading R. R. Co. v. Yeiser, 8 
 Barr, 366 ; Hatch v. Vt. Central R. R. Co., 26 Vt. 49 ; Sabin v. Same, 26 id. 
 363. 
 
 3 Burroughs v. Housatonic R. R. Co., 15 Conn. 124; Phila. and Read- 
 ing R. R. Co. v Yeiser, 8 Barr, 366. 
 
AND REAL ESTATE BY CONDEMNATION. 175 
 
 compensation is required by the clause of the con- 
 stitution already cited. 1 
 
 Bights of owners op lands upon navigable 
 waters. — The owner of lands adjoining a navigable 
 river in which the tide ebbs and flows, has no 
 private property in the shore between high and low 
 water mark, but it belongs to the State in its 
 sovereign capacity. Whatever rights he has in it 
 are public rights, which may be restricted by the 
 legislature without giving him compensation. 2 Thus, 
 the owner of a farm lying on the Hudson river 
 where the tide ebbs and flows, cannot recover 
 damages of a railroad company, which constructs, in 
 pursuance of a grant from the legislature, a railroad 
 along the shore between high and low water mark 
 with an embankment so high as to cut off all com- 
 munication between such land and the river other- 
 wise than across the railroad, and preventing the 
 lading of boats with produce directly from the 
 farm. 8 It is held in Maine that it is competent for 
 
 1 Hatch v. Vt. Central R. R. Co., 25 Vt. 49 ; Richardson v. Vt. Central 
 R. R. Co., 25 id. 465. But, see Miller v. Auburn and Syracuse R. R. Co., 6 
 Hill, 61. 
 
 a Bailey v. Phil. Wil. and Baltimore R. R. Co., 4 Harring. 389. 
 
 " Gould v, Hudson River R. R. Co., 12 Barb. 616 ; S. C. 2 Selden, 522, 
 Edmonds, J., dissenting; see Morgan -^.'King, 18 Barb. 277; Bundle v. 
 Delaware and Raritan Canal Co., 14 How. 80 ; Pennsylvania v. Belmont 
 Bridge Co., 18 id. 432 ; Commonwealth v. Fisher, 1 Penn. 462 ; Shrunk v. 
 Schuylkill Nav. Co., 14 S & R. 71 ; contra, Bell „. Gough, 3 Zabris. 624. 
 The charter of the Hudson River Rail Road Company required the erection 
 of draw-bridges over navigable streams, inlets, and bays, and the extension 
 of docks and wharfs which were cut off by the railroad. The statute is 
 held to mean only bays capable of a general navigation, and not to require 
 the company to extend the docks on the streams and bays. Tillotson v. 
 
176 ACQUISITION OF EIGHT OP "WAT 
 
 the legislature to authorize erections across tide 
 waters or any navigable waters without compensa- 
 tion, although the navigation is impaired ; but the 
 company under a statute will be liable to an 
 action for an injury to an owner by not complying 
 with its requirements. 1 So, in Massachusetts where 
 an act of the legislature authorized the company to 
 make certain erections for its road between the 
 channels of two navigable rivers, and such erections 
 having been made in the manner specified in the 
 act, whereby the course of the currents of the 
 rivers was changed and directed upon certain 
 wharves and flats, rendering additional sea-wall and 
 filling necessary to secure the same, it was held 
 that the damage thereby occasioned to the pro- 
 prietor was damnum absque injuria, for which he 
 was not entitled to compensation from the company ; 
 it being competent for the legislature to regulate a 
 navigable stream so as to promote the public con- 
 venience without entitling riparian proprietors to 
 compensation for damage thereby done to them. 2 
 Also, the owner of a tide mill, who is besides the 
 riparian proprietor of flats from which the tide 
 wholly ebbs between his mill and navigable water, 
 has no right either as against coterminous proprietors 
 or the public, to have his flats kept open and unob- 
 structed for the free flow and reflow of the tide 
 water for the use of his mills or for navigation. 
 
 Hudson River R. R. Co., 15 Barb. 406; Getty v. Same, 21 id. 617; see 
 Furniss v. Hudson River R. R. Co., 5 Sandf. 651. 
 
 1 Rogers v. Kennebec and Portland R. R. Co., 35 Maine, 319. 
 
 * Fitchbury R. R. Co. v. Boston and Maine R. R. Co., 3 Cush. 68. 
 
AND EEAL ESTATE BY CONDEMNATION. 177 
 
 The adjoining proprietors may build solid structures 
 to the extent of one hundred rods, and thereby 
 obstruct the flow and reflow of the tide, provided 
 they do not wholly cut off the access of other pro- 
 prietors to their houses and land ; and if the mill 
 owner or other proprietors suffer damage there- 
 from, it is damnum absque injuria. The public 
 have a right 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 a ground for 
 damages, or the taking of private property for 
 public use which will entitle the owner to compen- 
 sation. 1 Under the colonial ordinances of Mas- 
 sachusetts the flats, on an arm of the sea where the 
 tide ebbs and flows, to the extent of one hundred 
 rods are appurtenant to the upland. 2 The owner of 
 the wharf or upland to which the flats are appur- 
 tenant, is by virtue of this ordinance entitled to 
 compensation for injuries to his property by the 
 construction of a railroad across them. 8 
 
 A State may authorize a railroad company to 
 build a bridge over navigable waters, which does 
 not conflict with the legislation of Congress by virtue 
 of its power to regulate commerce between the 
 States. But if it conflicts with such legislation, a 
 party suffering special damage therefrom may insti- 
 
 1 Davidson v. Boston and Maine R. R., 3 Cush. 91. 
 3 Commonwealth v. Alger, 7 Cush, 53. 
 
 a Ashby v. Eastern R. R. Co., 6 Met. 368 ; Commonwealth v. Boston and 
 Maine R. R., 3 Cush. 25. 
 
 13 
 
178 ACQUISITION OP BIGHT OF WAY 
 
 tute proceedings against it as a nuisance. 1 A 
 general power to construct a railroad and bridges 
 between a given termini, the natural and convenient 
 route of which would cross several navigable 
 streams, authorizes the company to construct 
 bridges over such navigable streams in a manner 
 that will not destroy the navigation of them. 2 The 
 power to obstruct navigation must, however, be 
 clearly given ; and when not given, or transcended, 
 the obstruction will be a nuisance. 8 
 
 Rights of owners of Lands upon Highways 
 and Streets. — Railroads must necessarily cross 
 highways, and in some cases run along upon them 
 for a greater or less distance, and they have been 
 constructed in the streets of cities and villages, 
 operated by horse or steam power. Under what 
 circumstances, when so constructed, compensation 
 must be awarded to the adjoining owner, is a ques- 
 tion not without difficulty and some conflict of 
 judicial opinion. In its determination, it is not 
 material whether the land for the street was origin- 
 ally dedicated gratuitously or appropriated by the 
 State by compulsory proceedings. 4 A distinction 
 
 1 Pennsylvania v. Wheeling Bridge Co., 13 How. 518 ; S. C, 18 id. 421 ; 
 Works v. Junction R. K., 5 M'Lean, 425 ; U. S. v. R. R. Bridge, 6 id. 61? ; 
 Columbia Ins. Co. v. Peoria Bridge Co., 6 id. ?0 ; Columbus Ins. Co. v. 
 Curtenius, 6 id. 209 ; People v. Saratoga and Rensselaer R. K. Co. 15 Wend. 
 113 ; U. S. v. New Bedford Bridge, 1 Wood, and Min. 401 ; 2 Am. Rail. Cas., 
 452, notes. 
 
 a Attorney General v. Stevens, Saxton, 369. 
 
 3 Attorney General v. Hudson River R. K. Co., 1 Stockton Ch. 52? ; New- 
 ark Plank Road Co. v. Elmer, 1 id. 754. 
 
 4 Williams v. N. Y. Central R. R. Co., 18 Barb. 222. 
 
AND REAL ESTATE BY CONDEMNATION. 179 
 
 has been suggested between ordinary highways and 
 streets within the limits of cities or populous villages, 
 according to which the latter may be used for more 
 various uses than the former, as for laying gas and 
 water pipes, or for any other like purposes, con- 
 ducive to the comfort and health of the inhabitants. 1 
 But as both the highway and the street are appro- 
 priated for the same general purpose, and a highway 
 in a district sparsely inhabited at one time may by 
 the growth and centering of population become a 
 street in a city, it is apprehended that this distinc- 
 tion does not rest on a sound basis. 
 
 The ordinary presumption is that the owner of 
 land taken or dedicated for a highway, still retains 
 the fee, subject to the right of way in the public 
 and the powers and privileges incident thereto. 
 The construction of a railroad on the highway, 
 owned and operated by a private company taking 
 tolls, has in a few cases been considered as subject- 
 ing the highway to an additional easement which, 
 even without any special damage, is a taking of 
 private properly requiring compensation. 2 This 
 doctrine cannot be regarded as law. Where private 
 property has been taken for public use, and full 
 
 1 Chapman v. Albany and Schenectady R. R. Co., 10 Barb. 362; Plant 
 11. Long Island R. R. Co., 10 id. 28; Milhau v. Sharp, 15 id. 193 ; Williams 
 v. N. Y. Central R. R. Co., 18 id. 246; Wetmore v. Story, 22 Barb. 414; S. 
 C, 3 Abbott, Pr. R. 262. 
 
 3 Fletcher v. Auburn and Syracuse R. R. Co., 25 Wend. 462 ; Mahon v. 
 Utica and Schenectady R. R. Co., Lalor's Sup. to Hill and Denio, 156 ; 
 Presbyterian Society of Waterloo v. Auburn and Rochester R. R. Co., 3 Hill, 
 667 ; Miller v. Auburn and Syracuse R. R. Co., 6 id. 61 ; Benedict v. Coit, 3 
 Barb. 469 ; Nicholson v. N. Y. and Erie R. R. Co., 22 Conn. 74. 
 
180 ACQUISITION OP EIGHT OF WAY 
 
 compensation made for a perpetual easement, its 
 subsequent appropriation to another public use of a 
 like kind does not require additional compensation. 1 
 The purpose of opening a highway or street is, to 
 provide the public with a right of passage for 
 persons on foot or with carriages or other kinds of 
 vehicles. The use, for which this public right is 
 obtained is not confined to the same species of 
 vehicles, drawn by the same kind of power that 
 prevailed at the time of the dedication or appropria- 
 tion, but admits of the passage and repassage of 
 such other vehicles, operated in such a mode and 
 by such forces, as an advanced civilization may 
 require for the general convenience. The improved 
 method of conveyance may incidentally increase 
 or depreciate the value of property on the high- 
 way; but, provided the right of ingress and 
 egress, of passage and repassage, is left reasonably 
 free to the adjoining owner, the injury is one which 
 the law does not recognize. It may now be stated 
 as the settled rule of American law, that a rail- 
 road laid out over or upon a highway or street, 
 under proper legal authority, is not such an invasion 
 of private right as to entitle the owner to compen- 
 sation by virtue of the constitutional prohibition, 
 provided it is so laid and constructed as not to be 
 incompatible with the use of the same in the other 
 usual modes of passage and conveyance. It is not 
 necessarily a nuisance or purpresture, even in a large 
 
 1 Chase v. Sutton Manuf. Co., 4 Cush. 152; Pierce v. Somers-worth, 10 
 N. H. 369; Heyward v. New York, 3 Selden, 214; Rexford v. Knight, 1 
 Kernan, 308. 
 
AND REAL ESTATE BY CONDEMNATION. 181 
 
 city, although it may to a certain extent interrupt 
 the free passage of other kinds of vehicles ; and 
 unless unreasonable or permanently exclusive in its 
 use, when authorized by competent authority it is 
 not a nuisance to be restrained by an injunction. 
 The authority to construct the road legalizes the 
 obstruction, and prevents actions for special damages. 
 The exclusive right to take tolls from persons pass- 
 ing over it in its cars, vested in a private corporation 
 or individuals, does not make the use of the highway 
 a diversion from its original purpose. 1 The right to 
 compensation in such a case may, however, be given 
 by the charter of the company. 2 But notwithstand- 
 ing the laying of the track of the railroad on a high- 
 way so as not to be incompatible with the owner's 
 right of passage and repassage, if made under com- 
 
 1 Drake v. Hudson River R. R. Co, 7 Barb. 508 ; Plant v. Long Island R. 
 R. Co., 10 id. 26 ; Chapman v. Albany and Schenectady R. R. Co., 10 id 
 360; Hentz v. Long Island R. R. Co., 13 id. 646; Adams «. Saratoga and 
 Washington R. R. Co., 11 id. 414; Milhau v. Sharp, 15 id. 193 ; Stuyvesant 
 v. Pearsall, id. 244 ; Milhau v. Sharp, 17 id. 435 ; Williams v. N. Y. Central 
 R. R. Co., 18 id. 222 ; Wetmore v. Story, 22 id. 414 ; S. C. 3 Abbott Pr. R. 
 262 ; Anderson v. Rochester, Lockport, and Niagara Falls R. R. Co., 9 How. 
 Pr. 553 ; Radcliffe v. Mayor of Brooklyn, 4 Comst. 195 ; Hamilton v. N. Y. 
 and Harlem R. R. Co., 9 Paige, 171 ; Hodgkinson v. Long Island R. R. Co. 
 4 Edw. Ch. 411 ; Davis v. Mayor, <fec. New York, to be reported in Kernan's 
 Reports of the N. Y. Court of Appeals ; Applegate v. Lexington and Ohio 
 R. R. Co., 8 Dana, 289; Wolfe v. Covington and Lexington R. R. Co., 15 B. 
 Monroe, 404; Whittier v. Portland R. R. Co., 38 Maine, 26 ; In Re Phil, and 
 Trenton R. R. Co., 6 Whart. 25 ; Monongahela Nav. Co. v. Cjons., 6 W. & S. 
 101 ; M'Laughlin v. R. R. Co., 5 Rich. 583 ; Sargent v. Ohio and Mississippi 
 R. R. Co., 1 Handy (Superior Court of Cincinnati), 62 ; Tate v. Ohio and 
 Mississippi R. R. Co., 7 Indiana, 479; 2 Am. Rail. Cas., 292; Donnaher v. 
 State of Mississippi, 8 S. <fe M. 649 ; Richardson v. Vt. Central R. R. Co., 25 
 Vt. 465 ; Hatch v. Same, 25 id. 62. 
 
 3 Mifflin v. R. R. Co., 16 Penn. State, 182.] 
 
182 ACQUISITION OF EIGHT OF WAY 
 
 petent authority cannot be complained of by him, 
 yet if his right to use the adjoining highway is 
 essentially obstructed or destroyed, it would be 
 manifestly unjust, and according to some authorities 
 unconstitutional, to deny him compensation. 1 
 
 A municipal corporation, by virtue, of its ordinary 
 power to regulate the use of streets may, it has 
 been considered, by a revocable license permit 
 private individuals or a corporation to lay railroad 
 tracks thereon, and run cars on the same, receiving 
 tolls for their own use from passengers, provided 
 other modes of carriage are not essentially impaired, 
 and a nuisance is not created. The municipal legis- 
 lative body cannot, it would seem, in the absence of 
 special powers conferred by the State, grant an 
 irrevocable franchise to private individuals or cor- 
 porations so to use the streets, as this would be an 
 unauthorized surrender of its legislative capacities. 2 
 
 1 Tate v. Ohio and Mississippi R. R. Co., 7 Ind. 479 ; Fletcher v. Auburn 
 and Syracuse R. R. Co., 25 Wend. 462; Chapman v. Albany and Schenectady 
 R. R. Co., 10 Barb. 366 ; Plant v. Long Island R. R. Co., 10 Barb. 26 ; 
 Cooper v. Alden, Harring Ch. (Mich.), 72. 
 
 2 Davis v. Mayor, <fec, of New York, Sharp, et ah to appear in Kernan's 
 Reports of the Court of Appeals of New York, overruling 3 Duer, 119; 2 
 id. 663; Milhau v. Sharp, 15 Barb. 193; 17 id. 435; Stuyvesant v. Pearsall, 
 15 id. 244. In the same case of Davis v. Mayor, &c, of New York, Sharp 
 et al. involving the right of parties under authority of a resolution of the 
 Common Council to maintain a railroad operated by horse power in Broad- 
 way, New York, and to take tolls from persons passing on the same, the 
 judges of the Court of Appeals concurred, on questions of remedy and 
 practice, in reversing the judgment of the Superior Court against the defen- 
 dants, and ordering a new trial ; but their opinions differ as to the power of 
 the municipal authorities of a city, without special legislative authority to 
 permit the use of the streets for that purpose, even by a revocable license, 
 and as to the. question whether the ordinance authorizing the railroad was a 
 
AND REAL ESTATE BY CONDEMNATION. 183 
 
 The railroad, if built in a street or highway with- 
 out competent public authority, is a public nuisance, 
 and the parties constructing it may be indicted. 
 The owners of the lots on the street suffering spe- 
 cial damage in the obstruction of access therefrom 
 to their lots by the railroad, have the right to com- 
 plain thereof; and an injunction against laying its 
 track will be granted on their application. It was 
 so held where the construction of a railroad in the 
 streets of New York city, under a resolution of the 
 Board of Assistants, passed in one year, and concur- 
 red in by the Board of Aldermen in another year, 
 had been commenced ; it being necessary, to give 
 validity to such a resolution, that it should be 
 adopted by both bodies in the same year. 1 
 
 The legislature of Mississippi, it has been held, 
 cannot subject the streets in the corporation of 
 Jackson, in which the right to them is vested, to the 
 use of a railroad corporation without the assent of 
 the city, or the payment of compensation. 2 But the 
 better doctrine is, that the streets of a municipal cor- 
 
 license or an irrevocable grant. See Drake v. Hudson River R. R. Co. 7 
 Barb. 508 ; Hamilton v. N. Y. and Harlem R. R. Co. 9 Paige, 17 1 ; Lexington 
 and Ohio R. R. Co. v. Applegate, 8 Dana, 289. In Sargent v. Ohio and Missis- 
 sippi R. R. Co. 1 Handy (Sup. Court of Cincinnati), 52, the power of the city 
 authorities to permit a railroad company to lay its track in the streets, and 
 run cars thereon, provided other modes of conveyance were not seriously and 
 permanently obstructed, was sustained, and its exercise was held not to cre- 
 ate a nuisance, or be an invasion of private rights. And for the purpose of 
 preparing the street for the railroad track, the temporary occupation thereof 
 by the company, although exclusive, would not be restrained by injunc- 
 tion. 
 
 1 Wetmore v. Story, 22 Barb. 414 ; S. C. 3 Abbott, Pr. R. 262. 
 
 3 Donnaher v. State, 8 S. <t Mars. 649. 
 
184 ACQUISITION OF EIGHT OF "WAT 
 
 poration are subject to the paramount authority of 
 the State to regulate their use for general purposes 
 of the public good. 1 
 
 Liability of the Company to Landowners for 
 Damages, as defined by Statute. — The liability of 
 the company to answer in damages is often en- 
 larged by its charter, or a general law, beyond 
 what it would be at common law, or is required 
 by the constitutional restriction. The additional 
 liability is wisely adapted to protect private inter- 
 ests, and the intention to impose it is inferred from 
 quite general terms. The company, accepting a 
 charter on this condition, is bound to comply with 
 it. The statute may add more or less to the com- 
 mon law and constitutional liability. It may give 
 to a party whose land is taken, compensation for 
 consequential damages to that which is not taken. 
 This effect is given to statutes which provide for 
 the award to the owner of land taken, of " the 
 damages sustained by him ;" but such consequential 
 damages, for which compensation is provided, are 
 restricted to such as are immediate and appreciable, 
 and affecting the same piece or tract, a part of 
 which is taken, to the exclusion of such damages as 
 are remote and speculative. The statutes of Maine, 
 and of most other States, allow no compensation 
 where no land or materials are taken. 2 The statute 
 
 1 In Re Phil, and Trenton R. R. Co. 6 Whart. 25. 
 
 2 Rogers v. Kennebec and Portland R R. Co., 35 Maine, 319 ; Whittier 
 v. Same, 38 id. 26 ; Hatch v. Vt. Central R. R. Co., 25 Vt. 49. 
 
AND REAL ESTATE BY CONDEMNATION. 185 
 
 may be so drawn as to have a wider operation, as 
 in Massachusetts and Connecticut, so as to give a 
 remedy to a party from whom no land or materials 
 are taken. 1 In Massachusetts, it is provided that 
 " every railroad corporation shall be liable to pay 
 all damages that shall be occasioned by laying out 
 and making and maintaining their road, or by tak- 
 ing any land or materials." 2 Under this clause, 
 injuries to buildings on a lot near but not within 
 the limits of the road, resulting in the construction 
 of the same, from blasting, in a proper manner, a 
 ledge of rocks through which it passes, are to be 
 included in the assessment. 8 The owner of a wharf 
 on an arm of the sea, the value of which is impaired 
 by the construction of a railroad across the flats 
 below it, is entitled to compensation. 4 The obstruc- 
 tion of a private way, by the building of the rail- 
 road, is, under the statute, a proper subject to be 
 included in the award of damages. The owner of a 
 well on land adjoining but not crossed by the rail- 
 road, the water of which is drawn off by the excav- 
 ations in building the road, and the well thereby 
 rendered useless, is entitled to compensation. 6 The 
 owner of a right of flowage, which is injuriously 
 affected by the construction of a railroad over the 
 
 1 Dodge v. County Commissioners of Essex, 8 Met. 380 ; Bradley v. N. Y. 
 and N. H. R. R. Co., 21 Conn. 294. 
 
 " R. S., 1836, o. 39, § 56. 
 
 s Dodge v. County Commissioners of Essex, 8 Met. 380. 
 
 4 Ashby v. Eastern R. R. Co., 5 Met. 868. 
 
 * Parker v. Boston and Maine R. R. Co., 3 Cush. 107. See Aldrich a. 
 Cheshire R. R. Co., 1 Foster, 369. 
 
186 ACQUISITION OF EIGHT OF "WAT 
 
 land flowed, is entitled to damages. 1 The owners 
 of a milldam, authorized to be raised in a naviga- 
 ble river, although they did not comply with the 
 requirements of the law authorizing its erection, are 
 entitled to have damages assessed to them for the 
 injury caused by the construction of a railroad 
 through and across the millpond. 2 
 
 But the depreciation in the value of real estate 
 not crossed or touched by the railroad, and caused 
 not by any embankments or excavations so near as 
 to produce direct physical damage to it, but merely 
 by laying its track across a street leading thereto, is 
 not to be considered in the assessment. 3 
 
 ' Davidson v. Boston and Maine R. R. Co., 3 Cush. 91. 
 
 " White v. South Shore R. R. Co., 6 Cush. 412. 
 
 s Proprietors of Locks and Canals v. Nashua and Lowell R. R. Corp., 10 
 Gush. 385, — Shaw, C. J. : " Supposing, then, that a special damage, differ- 
 ing not only in degree but in kind, such as a direct physical damage on or 
 to the land, necessarily caused by the respondents in the execution of their 
 public work, and so authorized by their charter, were a proper ground on 
 which to assess damages, still, the question recurs, whether diminution in 
 the market value of the land not otherwise touched or affected by it, is 
 such special damage. 
 
 " Why is the market value of an estate thus situated, diminished ? Is 
 it not because whenever a purchaser is seeking a house, or a lot to build 
 one on, he perceives at a glance that, in passing from his house to the places he 
 will have most occasion to frequent, he must encounter the inconveniences 
 of an intervening railroad, such as passing over an embankment, danger of 
 detention by trains, exposure of children to accident, and the like, consider- 
 ations which render the house less eligible or attractive? Such a view 
 applies itself to the tastes, motives, and inducements of purchasers. Now, 
 the inconveniences of crossing a railroad track, elevated or depressed, or at 
 a grade, the possible detention by trains, the noise and smoke, and frighten- 
 ing of horses, the danger to persons, especially to children, are those which 
 the whole community suffer alike, in a greater or less degree ; but it cannot 
 be contended that every member of such community, or even those so 
 situated as to feel them in a greater degree than others, can maintain a 
 claim against the company for damages on this account. Is, then, the 
 
AND REAL ESTATE BY CONDEMNATION. 187 
 
 la Maine, the statute provision is held to extend 
 to the injury occasioned by the interruption of the 
 proprietor's passage from one part of his land to 
 another, as well as to any other injury which may 
 be caused by the construction and use of the road ; 
 and when such damages as may be anticipated from 
 
 apprehension of these inconveniences, which might tend to alarm pur- 
 chasers, and deter or discourage them from buying, a more tenable ground 
 to support a claim for damages ? We think not. They are common to the 
 whole community, to be borne by the public in consideration of the greater 
 public good to be acquired. They are, however, to be well considered by 
 the legislature before granting such a charter ; and we presume that no 
 wise government would grant a charter tending to such public incon- 
 veniences, without a great preponderance of public good to counterbalance 
 them. 
 
 " It is, perhaps, impracticable to state precisely how the law should be 
 laid down for regulating the recovery of damages. We propose, in case 
 there should be another trial, that it be stated somewhat in this form: That 
 all direct damage to real estate, by passing over it, or which affects the 
 estate directly though it does not pass over it, as, by a deep cut or high 
 embankment so near lands or buildings as to prevent or diminish the use of 
 them, by endangering the fall of buildings, the caving in of earth, the 
 draining of wells, the diversion of water courses, so far as these are the 
 necessary results of suitable and proper works to accomplish the enterprise 
 and secure the public easement which is the object of the charter ; also, as 
 being of like character, the necessary blasting of a ledge of rocks, so near to 
 houses or buildings as to cause damage ; running a track so near them as to 
 cause i mmi nent and appreciable danger from fire ; by obliterating or ob- 
 structing private ways leading to houses or buildings, — these, and perhaps 
 many others of like kind, which particular circumstances may present, we 
 think are proper Bubjects for the assessment of damages. 
 
 " But that no damage can be assessed for losses arising directly or indi- 
 rectly from the diversion of travel ; the loss of cuBtom to turnpikes, canals, 
 bridges, taverns, coach companies, and the like ; nor for the inconveniences 
 which the community may suffer in common, from » somewhat less con- 
 venient and beneficial use of public and private ways, from the rapid and 
 dangerous crossings of the public highways, arising from the usual and 
 ordinary action of railroad and railroad trains, and their natural incidents." 
 See Rex v. London Dock Co., 5 Ad. & El. 163 ; Caledonian R. Co. v. Ogilby, 
 29 Eng. L. and Eq. 22. 
 
188 ACQUISITION OP EIGHT OP WAY 
 
 its future construction, if it has not been built, are 
 assessed, they are made up on the whole injury done 
 or expected to be done, including not only the loss 
 of the use of the land, produced by the road, but the 
 probable expense of fences, and the diminution of 
 the value of the land by a separation from each 
 other of its different parts. If the ground has been 
 excavated or elevated at the place where the com- 
 munication between the two parts must be, the ex- 
 pense of a way under or over the road is to be 
 considered, and if from the situation, one portion, 
 cut off from the other, will be greatly diminished in 
 value and rendered worthless, such facts may prop- 
 erly make an element in the computation. 1 But in 
 that State, as already seen, a party from whom no 
 land or materials are taken is not entitled to com- 
 pensation for indirect injuries, resulting from lawful 
 acts. 2 
 
 In New Hampshire, where the railroad commis- 
 sioners, in conjunction with the road commissioners 
 for the county in which the lands taken lie, are re- 
 quired to assess " the damages sustained by the own- 
 ers of the land," it is considered that the damages 
 sustained are to be such as may fairly result to the 
 land-owner by the building of the road in a suitable 
 and proper manner, not only on account of the land 
 actually taken, but on account of the injuries to his 
 other land and property, and the inconveniences to 
 which he is subjected. They are to take into con- 
 
 1 Mason v. Kennebec and Portland R. R. Co. 31 Maine, 215. 
 ' Rogers v. Same, 35 Maine, 319; Whittiersi. Same, 38 id. 26. 
 
AND REAL ESTATE BY CONDEMNATION-. 189 
 
 sideration and assess all damages, direct and conse- 
 quential, present and prospective, certain and con- 
 tingent, which they may judge fairly to result to the 
 landowner by the loss of his property and rights, 
 and the injuries thereto. Thus, where the company 
 by its excavations in building its road, cut off the 
 spring which permanently supplied with water the 
 house and barn of the landowner and irrigated his 
 land, it was held that he should have been allowed 
 for the injury in the award. 1 Likewise, a cut made 
 in the construction of the road through an individ- 
 ual's land, which divides a way he has made for his 
 own private use, leading from one part of his farm to 
 another, and which also divides his pasture, is to be 
 considered in the award. 2 Where a part of the own- 
 er's land was made liable by the operations of the 
 company to be washed, and to cave off at a bank, and 
 the sand drifted from the railroad to the injury of 
 his adjoining land, such injuries, resulting unavoida- 
 bly from building the road in a suitable and proper 
 manner, are to be compensated in the award. 8 
 
 In Vermont, the commissioners are to appraise the 
 damages which are likely to result to the owner of 
 land taken, from the stones which are thrown on his 
 remaining land by blasting in a proper manner rocks 
 within the line of the road. 4 But where no land of 
 
 1 Aldrieh v. Cheshire R. R. Co. 1 Foster, S59. 
 
 a Clark v. Boston, Concord, and Montreal R. R. 4 Foster, 114. 
 
 3 Dearborn v. Boston, Concord, and Montreal R. R. 4 Foster, 1"79. As to 
 damages for farm-crossings and building bridges and culverts, so as to pre- 
 serve the natural flow of streams, see Marsh v. Portsmouth and Concord R. R. 
 19 N. H. 372. 
 
 4 Sabin v. Vt. Central R. R. Co. 25 Vt. 363. 
 
190 ACQUISITION OF EIGHT OP WAY 
 
 his is taken, they are not to assess for consequential 
 damages to his property, as where it is injured by 
 the operations of the company in a street or high- 
 way. 1 Where the company has the power to take 
 materials outside of its limits for the construction 
 of its road, the commissioners are the proper tri- 
 bunal to assess the damages. 2 
 
 In Connecticut, where the charter provided that 
 the company " shall be liable to pay all damages that 
 may arise to any person or persons," a party was 
 held entitled under this provision to consequential 
 damages of a definite and appreciable character, 
 although not amounting to a taking of private prop- 
 erty, within the meaning of the statute, for which 
 compensation must be made ; and damages resulting 
 from excavations by the company for the bed of its 
 road in land adjoining the plaintiffs, whereby the 
 foundation of his shop on his land was weakened, 
 and from an embankment in the street opposite hi3 
 building whereby access to it was obstructed, and 
 it was rendered by the darkening of the lights and 
 the obstruction of the air, resulting from the com- 
 pany's works, unfit for occupation, — were considered 
 to be within the clause of the charter providing 
 compensation. 8 
 
 In New York, where, under the fifteenth section of 
 the railroad act, the commissioners are required to 
 
 1 Hatch v. Vt. Central R. R. Co. 25 Vt. 49; Richardson v. Same, 25 id. 
 466. 
 
 ' Vt. Central R. R. Co. v. Baxter, 22 Vt. 866. 
 
 3 Bradley v. N. Y. and N. H. R. R. Co. 21 Conn. 294. See Nicholson v. 
 N. Y. and N. H. R. R. Co. 22 id. 74; Clark v. Saybrook, 21 Conn. 313. 
 
AND REAL ESTATE BY CONDEMNATION. 191 
 
 ascertain and appraise the compensation to be made 
 to the owner or persons interested in the real estate 
 proposed to be taken for the purposes of the com- 
 pany," they are to assess damages, not only for the 
 actual value of the land taken, but also for the injury 
 to the owner's remaining land not taken, by leaving 
 it in an inconvenient and unmarketable shape. But 
 they cannot take into consideration the use to which 
 it is to be appropriated, and give greater compensa- 
 tion because it is to be used for a railroad, than for 
 any other lawful purpose, or assess damages occa- 
 sioned by the construction and operation of the rail- 
 road over his premises, beyond the rule above stated. 
 Thus, probable loss of custom to a saw-mill situated 
 on a portion of the land not taken, difficulty of get- 
 ting lumber to and from it, and increased risk of 
 fire, from the construction and operation of the rail- 
 road, are not to be considered by them. 1 In assess- 
 ing damages against a railroad company for taking 
 a right of a way across a turnpike, the turnpike com- 
 pany are not to be allowed for decrease of their 
 business in consequence of the construction of the 
 railroad along the same general line of travel. 2 It 
 was held that evidence of the following circum- 
 stances was rightly rejected: that the land not 
 taken is greatly depreciated in its market value by 
 reason of the part taken being used for railroad 
 purposes ; that the buildings on the residue of the 
 
 1 Canandaigua and Niagara Falls R. R. Co. v. Payne, 16 Barb. 273; 
 Rochester and Syracuse R. R. Co. v. Budlong, 6 How. Pr. 467. 
 
 ' Troy and Boston R. R Co. v. Northern Turnpike Co., 16 Barb. 100 ; 
 Same v. Lee, 13 id. 169. 
 
192 ACQUISITION OP EIGHT OF WAT 
 
 lot are less desirable as a place of residence or 
 business by reason of their proximity to the rail- 
 road thus running through the lot, and their expo- 
 sure to the noise, smoke, and other annoyances 
 attending the passage of engines and trains ; that 
 the buildings ' are exposed to be set on fire by 
 sparks from the engines ; that cattle and horses 
 on land adjacent to the track of the road are 
 liable to be frightened and injured by the passage 
 of engines and trains ; that it is difficult and un- 
 safe to work teams on lands adjoining a railroad ; 
 that cattle are in danger when crossing the track 
 of running along upon it and being killed ; and that 
 the general value of a farm lot is in consequence 
 of these inconveniences diminished ; and that a 
 railroad through a farm is a great injury to it, and 
 to the general business and operations of a farm, 
 and its value is greatly diminished thereby. 1 
 
 It was once held in New York, that in estimating 
 the damages which the owner of lands taken will 
 sustain from the railroad, he should be allowed for 
 the expense of maintaining his half of the partition, 
 fences along the line of his land ; and the company, 
 under the law requiring adjoining owners to con- 
 tribute to the expense of maintaining a partition 
 fence, would be bound to maintain the other half. 2 
 The better opinion now is, that the entire expense 
 of fencing is to be considered in the assessment 
 where the construction of the railroad leaves an 
 
 ' Albany and Northern R. R. Co. v. Lansing, 16 Barb. 68. 
 2 In Matter of Rensselaer and Saratoga R. R. Co., i Paige, 563; but see 
 In Matter of Long Island R. R. Co., 3 Edw. Ch. 486. 
 
AND REAL ESTATE BY CONDEMNATION. 193 
 
 inclosed field open, in order to arrive at the de- 
 preciated value ; but it is not a subject for dam- 
 ages in the case of uninclosed lands. 1 
 
 In Pennsylvania, where the provisions of the char- 
 ter were construed to afford further protection to 
 the property of landowners, injuriously affected by 
 the construction of the railroad, than that secured 
 by the constitution of the State, the company, having 
 constructed its road upon the bed of a turnpike, was 
 held bound to indemnify for consequential damages 
 persons who had received compensation for the 
 building of the turnpike upon their land. The 
 owners were allowed compensation for damages re- 
 sulting from excavations made for the railroad, by 
 which their property was divided, and houses left 
 standing in inconvenient and isolated positions. 2 
 In the same State, where the charter provided that 
 the viewers " shall estimate and determine whether 
 any, and if any, what amount of damages have 
 been sustained, or may be sustained," by owners of 
 lands taken or occupied in the construction of the 
 railroad, it was held that this provision was de- 
 signed to secure compensation for injuries both 
 direct and consequential, but not for such as were 
 speculative and imaginary. Among the latter class 
 which were not to be considered in the assessment, 
 the risk of accidental fires, which might be com- 
 
 1 Henry v. Pacific R. R. Co., 2 Clarke (Iowa), 288 ; Milwaukie and Mis- 
 sissippi R. R. Co. v. Eble, 4 Chandler (Wis.), 72 ; North Eastern R. R. Co. v. 
 Sineath, 8 Rich. 185; Indiana Central R. R. Co. v. Hunter, 8 Indiana. See 
 post, 205, note. 
 
 3 Mifflin v. R. R. Co., 16 Penn. State, 182. 
 
 14 
 
194 ACQUISITION OF EIGHT OF WAT 
 
 municated from the locomotives on the track, to 
 buildings standing or to be erected on land over 
 which it passed, was included. 1 
 
 In New Jersey, where by the charter the land- 
 owner was entitled to the value of the land and 
 damages sustained, it was held proper for the jury 
 to take into consideration the deterioration in value 
 of the adjacent parts of the same tract by the prox- 
 imity of the railroad, for agricultural or building 
 purposes, the obstruction of the free use of his 
 buildings, the increased risk of fire and of danger 
 to his family and stock in crossing the road, and 
 the inconvenience caused by embankments and ex- 
 cavations made by„the company. 2 
 
 1 Sunbury and Erie R. K. Co. v. Hummell, 27 Penn. State, 99. But see 
 Yeiser v. Phil, and Reading R. R. Co., 8 Barr, 366. 
 
 2 Somerville and Easton R. R. Co. v. Doughty, 2 Zabris. 495, Ogden, J., 
 dissenting as to certain parts of the deeison, said, — " While the amount should 
 be sufficiently broad to cover all damages which may result from the natu- 
 ral and physical effects produced by the location, construction, and use of 
 the railroad through the plaintiff's property, in deteriorating the value 
 thereof, a jury should not attempt to reach, and to compensate for those 
 imaginative damages which capricious and timid fancies may suggest, which 
 cannot be measured by any certain criterion, and which need not necessa- 
 rily, and probably never would be, sustained. 
 
 " It would be unsafe for the court to venture an enumeration of every 
 species of injuries for which a landowner might be entitled to an assess- 
 ment of damages, consequent upon the location, construction and use of a 
 railroad across his property ; nevertheless there are some elements of dam- 
 ages which are undisputed, as, for instance, the obstruction of the free use of 
 the party's other lands, by the formation of an embankment or an excava- 
 tion which would require on his part an increase of motive power, or an 
 unprofitable diminution in loading in his necessary cartage over the same ; 
 the changing the character of his improvements; the impairment or de- 
 struction of some actual item of value ; the expenses of erecting and main- 
 taining two lines of fences along the length of the road across his lands for 
 
AND REAL ESTATE BY CONDEMNATION. 195 
 
 la South Carolina, where the charter directed 
 the commissioners "to take into consideration the 
 loss or damage which may occur to the owner or 
 owners in consequence of the land or right of way- 
 being taken," the expense of fencing uninclosed 
 lands used for grazing was not to be allowed to the 
 owner in the appraisement. 1 
 
 So under a charter with a similar provision, the 
 incidental depreciation of the value of the tract by- 
 reason of the railroad passing through it, was a 
 proper matter for consideration. 8 In another case, 
 it was held proper to direct the jury, in estimating 
 " the loss or damage," to take into consideration not 
 matters of sentiment or fancy, but such losses and 
 
 the purpose of perfectly protecting his premises, as well as his stock, from 
 injury or destruction, and divers other items of damage, which must ' de- 
 pend upon the peculiar circumstances and situation of the land taken, and 
 its relative position to other lands, property, or rights of the owner.' 
 
 "There are considerations, also, which should not enter the jury box; 
 to wit, — the interruption of a prospect; the noises occasioned by the pass- 
 age of cars ; the hazard of fire from the motive power usually employed ; 
 the risk of alarm to horses, and of destruction of vehicles, and of personal 
 injury which might result therefrom; the danger that cattle, or other live 
 stock, may be overtaken by the trains running upon the track, and be 
 lamed or killed ; the possibility that the landowner, his wife, his children, 
 and his domestics, or some one or more of them, may be maimed or crushed 
 to death in their necessary passage across the railroad. These, and many 
 other ideal, speculative, and unsubstantial elements of damages, are too con- 
 tingent and casual in their natures to be susceptible of admeasurement or 
 of specific compensation or of receiving just remunerative pecuniary equiv- 
 alents for the injuries contemplated." 
 
 1 North Eastern R. R. Co. v. Sineath, 8 Rich. 185, in which the dictum 
 in Greenville and Columbia R. R. Co. v. Partlow, 5 id. 428, that " the ex- 
 pense of fencing along the road when it passes through fields, is properly 
 an item of damages," is questioned. It was also decided that, on an appeal 
 by the company, from the assessment by commissioners, the jury are not 
 limited to the amount fixed by them, but may give higher damages. 
 
 a Greenville and Columbia R. R. Co. v. Partlow, 5 Rich. 428. 
 
196 ACQUISITION OF EIGHT OF "WAT 
 
 inconveniences as could be estimated in money ; 
 among which were the value of the land actually- 
 occupied ; the deterioration of the parcels isolated ; 
 the alterations of arrangement required about the 
 homestead ; the loss of time and expenditures, caused 
 by any increase of care or distance, which had been 
 occasioned, and the injury, if any had been done, to 
 the value which the place had as a stand for a pub- 
 lic house. 1 
 
 In Illinois, it is considered that the injuries which 
 the proprietor suffers by having his farm divided, 
 so as to make it inconvenient to pass to and from its 
 different parts, and to compel him to erect additional 
 fences ; and all other injuries of a like character 
 occasioned by the construction of a public work 
 through it, are as proper subjects of inquiry in esti- 
 mating the damages sustained thereby as is the 
 value of the land actually appropriated to public 
 use. 2 
 
 In Iowa, .where the statute provides that the com- 
 missioners shall "assess the damages which the 
 owner will sustain by the appropriation of his land 
 for the use of the railroad corporation," the term 
 " damages " is held to be precisely synonymous with 
 those of "just compensation" used in the constitu- 
 tion of the State, and should be commensurate with 
 the injury sustained by the taking of the property. 
 All the circumstances which immediately depreciate 
 the value of the premises by taking the right of 
 
 1 White xi. Charlotte and S. C. R. R. Co., 6 Rich. 47. See Greenville 
 and Columbia R. R. Co. v. Nunnamaker, 4 Rich. 107. 
 
 2 Alton and Sangamon R. R. Co. v. Carpenter, 14 111. 192. 
 
AND REAL ESTATE BY CONDEMNATION. 197 
 
 way are proper to be considered, and none others. 
 It was held, that the expense of fencing the land 
 divided by the railroad was not necessarily an ele- 
 ment to be considered in assessing the damages ; 
 but if the land was fenced before, and by taking a 
 right of way for a railroad it is thrown open and 
 left unfenced, this fact may be considered in arriv- 
 ing at the depreciated value of the remaining pre- 
 mises. 1 
 
 In the construction of the English Railway Act, 
 sect. 68, 8 and 9 Victoria, c. 18, giving compensation 
 where " any lands or any interest therein has been 
 taken or injuriously affected " by the company, it is 
 considered that acts of the company which might 
 have been lawfully done without authority of the 
 legislature, can support no claim for compensation ; 
 but where without' such authority the thing done 
 would have afforded a cause of action, the lands and 
 premises deteriorated thereby are "injuriously 
 affected" within the meaning of the act. Thus, 
 where a railway constructed under the powers of a 
 special act, crossed on a level and in an oblique 
 direction a private road which was the only means 
 of approach to the plaintiff's house, and over which 
 he had a right of way as appurtenant to his farm, 
 so that at a point where it intersected his road, a 
 train running at ordinary speed could not be seen 
 for more than seventeen seconds before it reached 
 that point ; and gates were put up on each side of 
 
 1 Henry v. Dubuque and Pacific R. R. Co., 2 Clarke (Iowaj, 288 ; Sater 
 v, Burlington and Mount Pleasant Plank Road Co., 1 id. 38G. 
 
198 ACQUISITION OF EIGHT OF "WAY 
 
 the railway across his road, which were kept locked 
 under the provisions of the act, a key being kept 
 by a servant of the company, whose business it was 
 to unlock the gates when any person had occasion 
 to pass through them, and another being kept by 
 the plaintiff, by reason of which obstruction the 
 plaintiff's property was depreciated in value, he was 
 held entitled to compensation, although the railway 
 did not pass through his farm. 1 And it has since 
 been held in the House of Lords, that a party is not 
 entitled to compensation for the consequential injury 
 to his premises from the crossing by the railway of 
 an important public road leading thereto. It was 
 also considered in this last case, that the owner of 
 land is not entitled to compensation under the clause 
 for any act which, if done without authority of the 
 legislature, would not give him' a right of action ; 
 and that there are injuries, such as the temporary 
 obstruction of the highway by the closing of the 
 gates on the side of the railway, which without 
 legislative authority are actionable, but which do 
 not come within the compensation clause. 2 
 
 Admissibility of Evidence. — Commissioners, 
 whose duty it is, to assess the damages against a 
 railroad company should be governed in their 
 appraisal by the established rules of evidence. They 
 are not to admit testimony which a court of law 
 would reject, or reject testimony which a court of 
 
 1 Glover v. North Staffordshire It. Co., 5 Eng. L. & Eq. 335. 
 3 Caledonian R. Co. v. Ogilby, 29 Eng. L. & Eq. 22 ; see caaes reviewed, 
 id. p. 27. 
 
AND REAL ESTATE BY CONDEMNATION. 199 
 
 law would admit. 1 But where the acceptance or 
 rejection of their report is discretionary with the 
 higher court, the review will not be conducted on 
 the strict principles which govern the review of the 
 proceedings of judicial tribunals. The award will 
 not be set aside for any technical error in the 
 admission or exclusion of evidence ; but only when 
 the error is of such a character as to show that the 
 commissioners misapprehended the principles upon 
 which they were to make their appraisal, and that 
 the party appealing may have been injuriously 
 affected by such misapprehension. 2 Opinions of 
 
 1 Troy and Boston R. R. Co. v. Northern Turnpike Co., 16 Barb. 100 ; 
 Rochester and Syracuse R. R. Co. v. Budlong, 6 How. Pr. 467. 
 
 ' In Matter of William and Anthony Streets, 19 Wend. 6T8 ; Troy and 
 Boston R. R. Co. v. Northern Turnpike Co., 16 Barb. 100 ; Troy and Boston 
 R. R. Co. v. Lee, 13 id. 1 69. Harris, J. : " The verdict of a jury is determined 
 by the testimony submitted to their consideration. It is therefore the sub- 
 ject of review. It may be presented to the consideration of the court upon 
 paper. But it is not so in relation to the proceedings of these commissioners 
 of appraisal. The very first thing they are required to do is to view the 
 premises. Thus, their own senses are made to testify. The information thus 
 acquired it is impossible to bring before a court of review. The commis- 
 sioners, too, are selected with reference to their general knowledge, qualify- 
 ing them to judge discreetly upon the matters submitted to them. Unlike 
 a jury, they are restricted to no peculiar species of evidence, or any peculiar 
 sources of information. They may collect information in all the ways 
 which a prudent man usually takes to satisfy his own mind concerning 
 matters of the like kind, where his own interests are involved in the inquiry. 
 They may seek light from other minds, that they may be the better able to 
 arrive at just conclusions; but, at the last they must be governed by their 
 own judgment. That judgment is not to be controlled or outweighed by 
 the opinions of any number of witnesses. The commissioners have no right 
 to take such opinions, nor indeed any other evidence, as the basis of their 
 appraisal, without exercising their own judgment. They are to hear all 
 the proofs and allegations of the parties, as well as to view the premises, as 
 a means of enlightening their judgment; and having done all, they are then 
 to determine, in the free and uncontrolled exercise of that judgment, thus 
 enlightened and thus informed, what award will best dispense equal justice 
 
200 ACQUISITION OF EIGHT OF WAY 
 
 witnesses conversant with the value of. the land 
 taken are admissible to prove the value. They 
 may also, it seems, be admitted not only to prove 
 the value of the entire premises, where only a part 
 of the same lot or tract is taken, but also the value 
 of what remains after such part is taken. 1 
 
 But opinions of witnesses as to the amount of 
 damage done to the party by the construction and 
 operation of the railroad, are not competent evidence. 
 They may state the particular injuries, and the jury 
 are to form their own conclusion of the amount from 
 the facts proved. 3 Thus, where a turnpike company 
 
 to all the parties. When the original jurisdiction is to be exercised in this 
 manner, it is impossible from the very nature of the case, that there should 
 be anything lite a regular judicial review." 
 
 1 Wyman v. Lexington and West Cambridge R. R. Co., 13 Met. 326 ; 
 Troy and Boston R. R. Co. v. Lee, 13 Barb. 170 ; Troy and Boston R. R. 
 Co. v. Northern Turnpike Co., 16 id. 104; Concord R. R. Co. v. Greely, 3 
 Foster, 242 ; In Matter of Pearl Street, 19 Wend. 651. 
 
 In Iowa, the rule is thus stated: — the witnesses called by the respective 
 parties, on their examination in chief, may " speak as to their opinion of the 
 value of the premises before and after the taking of the right of way, leav- 
 ing the opposite party to the right of cross-examination to learn the abil- 
 ity of the witness to judge in the premises, and what he takes into consider- 
 ation in making up his judgment." Henry v. Dubuque and Pacific R. R. 
 Co. 2 Clarke, 288 ; Sater v. Burlington and Mt. Pleasant Plank Road Co. 1 
 id. 386. In Rochester and Syracuse R. R. Co. v. Budlong, 6 How. Pr. 48*7, 
 it is held that the opinions of witnesses competent to form a judgment in the 
 premises, are admissible to prove the value of the property for the purposes 
 of selling, renting, or hiring, and how that value will be affected by the 
 injury complained of, but not as to how the party will- be injured in other 
 respects independent of this diminution of value. See Somerville and Easton 
 R. R. Co. v. Doughty, 2 Zabris. 495. 
 
 a Albany and Utica R. R. Co. v. Lansing, 16 Barb. 68 ; Troy and Boston 
 R. R. Co. v. Northern Turnpike Co. 16 id. 100; Canandaigua and Niagara 
 Falls R. R. Co. v. Payne, 16 id. 273 ; Rochester and Syracuse R. R. Co. v. 
 Budlong, 6 Howard Pr. 467 ; Montgomery and West Point R. R. v. Varner, 
 19 Ala. 185. See Milwaukie and Miss. R. R. Co. v. Eble, 4 Chandler 
 (Wis.), 72. 
 
AND REAL ESTATE BY CONDEMNATION. 201 
 
 claims compensation of the railroad company, opin- 
 ions of witnesses as to the effect the use of the rail- 
 road will produce in frightening horses traveling 
 upon the turnpike at a particular place, or as to the 
 necessity of diverting the line of the turnpike at 
 another place and the cost of such diversion, or that 
 a bridge ought to be built by the company at a 
 crossing, or as to the amount of damages the turn- 
 pike company will sustain by reason of the crossing 
 of its road, are inadmissible. 1 But the opinions 
 of experts on matters which come properly within 
 the rule admitting their opinions, as evidence, are 
 admissible. Thus, the agent of an insurance com- 
 pany, who was in the habit of examining buildings 
 with reference to the insurance thereof, has been 
 admitted to testify that the passage of locomotive 
 engines within one hundred feet of a building would 
 increase the rate of insurance thereof against fire. 2 
 
 Evidence of what the railroad company has paid 
 an adjoining owner for land voluntarily sold by him, 
 is admissible to prove the value of the land in ques- 
 tion. But where the price of such adjoining land 
 was fixed by a jury or by arbitrators agreed upon 
 by the parties, or was in any way compulsorily paid 
 by the company, the evidence is not competent. 8 Evi- 
 dence of what an undivided part of the land taken 
 sold for at an administrator's sale, is admissible to 
 
 1 Troy and Boston R. R. Co. v. Northern Turnpike Co. 16 Barb. 100. 
 
 ' Webber v. Eastern R. R. Co. 2 Mfct. 1-47. 
 
 8 Wyman v. Lexington and West Cambridge R. R. Co. 13 Met. 316 ; 
 White u. Fitchburg R. R. Corp. 4 Cush. 440 ; Concord R. R. v. Greely, 3 
 Foster, 242; White v. Concord R. R. 10 Foster, 188. 
 
202 ACQUISITION OF BIGHT OF WAT 
 
 show the entire value. 1 Proof of an offer made by 
 the company to the party claiming damages, is not 
 admissible. 2 Nor is tbe testimony of the owner of the 
 adjoining land admissible to prove what in his judg- 
 ment is the value of his own land, although he is a 
 farmer, who has occasionally bought and sold land. 3 
 The testimony of a person who has agreed with the 
 owner of land taken by the company, for the pur- 
 chase of the adjacent land at a certain price, is inad- 
 missible to show the value of the land taken. 4 Nor 
 will a witness be allowed to testify as to inconven- 
 iences which he has suffered on his own farm by the 
 ordinary running of railroad ears, for the purpose of 
 showing the inconveniences suffered by one owning 
 a farm in the vicinity of a railroad, as such evidence 
 would raise an issue collateral to that on trial. 5 An 
 estimate, not on oath, of damages that would be sus- 
 tained by a party over whose land a railroad was 
 afterwards laid out, made by a committee of the 
 town, while a petition of the town for a change of 
 its route was before the legislature, and merely 
 stating those damages as the least the party would 
 take, although made at the request of an agent of 
 
 1 March v. Portsmouth and Concord R. R. 19 N. H. 372. It was held in 
 this case that the evidence of the principal engineer of the road is admissible, 
 to show the plan upon which the road is to be built, in order to determine 
 the damages to a landowner. 
 
 '* Upton v. South Reading R. R. Co. 8 Cush. 600 ; Concord R. R. v. Greely, 
 8 Foster, 242. 
 
 3 Wyman v. Lexington and West Cambridge R. R. Co. 13 Met. 316. 
 
 4 Chapin v. Boston and Providence R. R. Corp. 6 Cush. 422. 
 
 5 Concord Railroad Co. v. Greely, 3 Foster, 237. 
 
AND REAL ESTATE BY CONDEMNATION. 203 
 
 the company, is not competent evidence against the 
 company to prove the damages. 1 
 
 Measure oe Damages.— The fair market value of 
 the property taken, at the time of the taking, — not 
 what estimate derived from fancy, local attachment, 
 or otherwise, the owner places upon it, or what it 
 would bring at a forced sale, — is the measure of dam- 
 ages to be followed in the assessment. As the whole 
 of a lot or tract is not usually taken, the injury to 
 the remaining portion of the same lot or tract is 
 according to the ordinary interpretation of the stat- 
 utes providing compensation to be added to the 
 market value of the part taken. Where only a part 
 is thus taken, the difference between the market 
 value of the whole lot or tract before the taking and 
 the market value of what remains to the owner after 
 the taling, has been laid down as the rule of dam- 
 ages, which, in effect, reduces the damages in conse- 
 quence of the taking to the extent of the benefits, 
 unless the jury are specially instructed, in estimating 
 the value of the premises after the taking, to disre- 
 gard any rise in market value resulting from the 
 improvement. The rule which measures the dam- 
 ages by the market value of the part taken, and the 
 injury to the remaining portion of the same lot or 
 tract, applies irrespective of the question whether 
 benefits to the owner from the improvement are to 
 be deducted or not, in the appraisement, as they 
 
 1 Webber v. Eastern R. E. Co. 2 Met. 147. 
 
204 ACQUISITION OF EIGHT OF WAT 
 
 may be deducted after the damages are thus ascer- 
 tained. 1 
 
 1 In the Matter of Furman Street, 17 Wend. 649. In Matter of William 
 and Anthony Streets, 19 id. 690; Troy and Boston E. E. Co. n. Lee, 13 
 Barb. 169 ; Canandaigua and Niagara Falls E. E. Co., 16 id. 273; Roches- 
 ter and Syracuse E. E. Co. v. Budlong, 6 How. Pr. 467 ; Tide Water Canal 
 Co. v. Archer, 9 Gill and Johns. 479; Parks v. Boston, 15 Pick. 198; 
 Meacham v. Fitchburg E. E. Co., 4 Cush. 299; Greenville and Columbia 
 E. E. Co. v. Partlow, 5 Eich. 428 ;' White v. Charlotte and S. C. E. E. Co., 
 6 id. 47 ; Somerville and Easton E. E. Co. v. Doughty, 2 Zabris. 495 ; 
 Harrison v. Young, 9 Geo. 364;' Giesy v. C. W. and Z. E. E. Co., 4 Ohio 
 State, 331 ; Milwaukie and Mississippi E. E. Co. v. Eble, 4 Chandler (Wis.), 
 172 ; Sater v. Burlington and Mt. Pleasant Plank Eoad Co., 1 Clarke (Iowa), 
 386 ; Henry v. Dubuque and Pacific E. E. Co., 2 id. 309,— Isbell J. : "While 
 the owner of the land is compelled to stand passive, the sovereign power 
 asserts its prerogative, and says to the company, you may pass over this 
 man's land, and enjoy certain defined rights therein, for public use, and no 
 more, provided you first make him compensation. Money is the common 
 measure of value, for this land and the rights you are to acquire. The 
 measure must be applied, in the first instance, by the judgment of six com- 
 missioners on oath. The proper mode of applying this measure is, to determ- 
 ine the fair marketable value of the premises before the right is*set apart, 
 and then again after, and the difference will be the true measure of damage, 
 and when paid, will be, in a legal sense, just compensation. The money 
 paid will make the party whole. This is no chaffering contract. Pruden- 
 tial motives may induce the ^parties to accommodate themselves to one 
 another, as to the time of taking possession and the like, but in the absence 
 of any agreement, the whole matter is reduced in time to a point. The 
 company may be presumed to be at hand with its money, to tender for the 
 right of way, and its operative force to enter upon construction. The com- 
 missioners are on the ground ; they ask themselves, What are these premises 
 fairly worth to-day in the market ? Again, What will they be worth to- 
 day, after the owner shall have parted with the right which the company 
 are about to acquire ? The present values, taking into consideration the 
 extent of the rights conferred, are those which are to be arrived at. The 
 immediate and necessary consequences of parting with the right conferred, 
 must of necessity enter Into the consideration of the commissioners. The 
 premises, as left in the condition they will then be, together with the money 
 paid, should be equal to the value of the premises immediately before the 
 taking. An enumeration of the various circumstances that may enter into 
 any given case, tending to immediately depreciate the value of the premises, 
 by taking the right of way over them, is impracticable. The most that 
 
AND BEAL ESTATE BY CONDEMNATION. 205 
 
 Setting aside of the award. — The award of 
 the appraisers may be set aside where the amount 
 
 we are able to affirm, is, that all the circumstances which immediately 
 depreciate the value of the premises by taking the right of way are proper 
 to be considered, and none others. Thus, in case the land was before 
 fenced, and by taking the right of way it is thrown open, and left in a 
 manner unfenced, this fact will enter into the consideration, in arriving at 
 the depreciated value of the remaining premises. But it will not do to say, 
 The proprietor will have to fence his land ; therefore, he should be allowed 
 some definite price for some particular kind of fence, as a distinct consider- 
 ation from the depreciation in value of the premises. Much less will it do 
 to say, The consequence of building extra fence will be to have to keep it in 
 repair, and therefore, a further distinct consideration should be allowed for 
 this. But the sole ultimate consideration is, How is the taking of the right 
 of way to affect these premises to-day in the market ? How the road may 
 affect the value of the land, if completed, or any other consideration of 
 future benefit, has nothing to do with the assessment. Neither has any 
 abuse of the privilege, or probability of abuse ; for the company only bar- 
 gained for the legitimate use, and if it goes beyond this, it will render itself 
 liable, when the act is done, and not until then. Neither is any unwilling- 
 ness on the part of the owner to allow the road to go over his land, in any 
 manner to affect the assessment. There is a tacit condition attached to the 
 title by which every individual holds his land, — that in case it shall be re- 
 quired for public use, it may be taken for its simple value in the market. 
 Or, if a part only is required, for so much as the taking of this part, will 
 affect the value of the premises in the market. These considerations will, 
 at once, dispose of all questions of speculative and merely fancy damages." 
 
 Where gravel was taken from the owner's land for the building of the 
 road, the market value of the same by the cubic yard was held to be the 
 proper measure of damages. Phil. <fe Reading R. R. Co. v. Gilson, 8 Watts. 
 243. On appeal, the jury, it has been held, are to assess damages as of the 
 day when the commissioners made their appraisal. Boston, Concord, and 
 Montreal R. R. v. Greely, 3 Foster,-237. As to allowance of interest, see 
 Shattuck v. Wilton R. R. Co., 3 Foster, 269 ; March v. Portsmouth and Con- 
 cord R. R. Co., 19 N. H. 372 ; Parks v. Boston, 15 Pick. 206 ; Common- 
 wealth v. Boston and Maine R. R. Co., 3 Cush. 25 ; Phil., WiL, and BaL 
 R. R. Co. v. Gesner, 20 Penn. State, 240 ; or of costs, Vt. Central R. R. Co. 
 v. Baxter, 22 Vt 365 ; Atlantic and St. Lawrence R. R. Co. v. Cumberland 
 County Com'rs, 28 Maine, 112; Herbein'ji. Phil, and Reading R. R. Co., 9 
 Watts. 272; Phil., Ger., and Nor. R. R. Co., 2 Whart. 275; Phil., WiL, and 
 Bal. R. R. Co. v. Gesner, 20 Penn. State, 240 ; Greenville and Columbia R. 
 R. Co. i). Partlow, 6 Rich. 286 ; Harvard Branch R. R. Corp. v. Rand, 8 
 Cush. 218. 
 
206 ACQUISITION OF BIGHT OF WAT 
 
 of damages assessed is excessive, or it has been 
 made on improper evidence, or based on erroneous 
 principles, or the appraisers have been influenced 
 by corruption or partiality, but not for any merely 
 technical departure from established rules by which 
 the party complaining has not been prejudiced, or 
 because the court differ from them in relation to the 
 amount of damages which should be assessed. 1 
 The objection that they acted upon improper 
 evidence, or were governed by erroneous principles, 
 if not apparent on the record, must be supported 
 by proof. 2 
 
 Deduction of Benefits, — The constitutional 
 clause requiring compensation for private property 
 taken for public use, except where a special provi- 
 sion is introduced excluding the deduction of bene- 
 fits to the owner from the damages to be assessed 
 upon the appropriation of his property to public 
 use, does not require that he shall receive special 
 compensation where the benefits to his remaining 
 property exceed or equal the value of the property 
 taken, and does not prohibit such benefits from 
 being deducted from the damages. 8 
 
 1 Penn. E. R. Co. v. Heister, 8 Barr, 451 ; Phil., Wil. and Bal. R. R. Co. 
 v. Gesner, 20 Penn. State, 240 ; Willing v. Baltimore R R. Co., 5 Whart. 
 460; Troy and Boston R. R. Co. v. Lee, 13 Barb. 169; Bennet v. Camden 
 and Amboy R. R. Co., 2 Green. 146 ; Vanwiekle v. Same, 2 id. 162 ; N. J. 
 R. R. Co. v, Suydam, 2 Harrison, 25. 
 
 2 Coster v. N. J. R. R. Co., 3 Zabris. 227 ; 4 id. 730. 
 
 3 Symonds v. Cincinnati, 14 Ohio, 174 ; M'Intyre v. State, 5 Blackf. 384 ; 
 Alton and Sangamon R. R. Co. v. Carpenter, 14 111. 192 ; Hatch v. Vt. Cen- 
 tral R. R. Co., 25 Vt. 66 ; Nicholson v. N. Y. and N. H. R. R. Co., 22 Conn. 
 74, 88 ; Nichols v. City of Bridgeport, 23 id. 189 ; Opelousas R. R. Co. v. 
 Lagarde, 10 La. An. 150; Rexford v. Knight, 15 Barb. 627; Livermore v. 
 Jamaica, 23 Vt. 36. 
 
AND REAL ESTATE BY CONDEMNATION. 20 7 
 
 The statutes of the several States providing for 
 compensation to the owners of lands injured or 
 taken by a railroad company are not uniform in 
 relation to a deduction of benefits which he receives 
 from the construction of the road. Those of some 
 States are so construed as not to confine the bene- 
 fits to be deducted in the assessment of damages to 
 such as are peculiar to him, but to comprehend 
 those also which he shares with other members of 
 the community in the increased salable value of his 
 land. 8 The deduction for benefits is generally con- 
 fined to such as are peculiar to the party whose 
 property is taken. 
 
 a Penn. R. R. Co. v. Heister, 8 Barr, 450 ; Greenville and Columbia R. 
 R. Co. v. Partlow, 5 Rich. 428 ; Indiana Central R. R. Co. v. Hunter, 8 In- 
 diana; Alton and Sangamon R. R. Co. v. Carpenter, 14 111. 190, Trum- 
 bull, J. : " The act concerning the right of way, R. S. ch. 92, sects. 1 and 4, 
 declares that the householders summoned to estimate the damages which 
 the owner of land will sustain by reason of the passage of any road or pub- 
 lic work over the same, ' shall assess the damages which they shall believe 
 such owner or owners will sustain over and above the additional value 
 which such land will derive from the construction of such road, canal, or 
 other public work,' and ' if the householders shall report it to be their opin- 
 ion that no damages would be sustained by the owner of the land for the 
 passage of any such road, canal, or other public work, over and above the 
 advantages which such land would derive from its construction, nothing 
 more shall be paid than the costs of the view.' 
 
 " It is obvious, from these various provisions of the statute, that the legis- 
 lature never contemplated the payment of damages to the owner of a tract 
 of land for the privilege of constructing the railroad through it, when the 
 additional value to be given to the land by its construction was fully equal 
 to the injury which it would occasion. If additional value is given to the 
 land by the construction of the public work, it matters not whether it be 
 by draining the land which was before wet, by affording additional facili- 
 ties for taking its produce to market, or by the general enhancement in the 
 value of the land occasioned by its contiguity to the public work. The 
 language of the statute is general, and there is no propriety in restricting 
 the benefits to be derived from the construction of the railroad, if of a real 
 
208 ACQUISITION OF EIGHT OF WAT 
 
 In Connecticut, where the statute provides for 
 the assessment of "just damages" to the owner, 
 local and peculiar benefits resulting to him from 
 the construction of the road may be deducted. 1 
 
 In Massachusetts, it is held under the statute 
 which provides for an allowance by way of set-off 
 of the benefit to the property of the owner by 
 reason of the road, that any direct and peculiar 
 benefit or increase of value, accruing from the con- 
 struction of the railroad to land of the same owner 
 immediately adjoining or connected with the land 
 
 and substantial character, to such only as arise from a particular source, or 
 for confining them to one class of benefits more than another. It is imma- 
 terial how the owner of the land is benefited, or that others whose lands 
 are not entered upon are benefited to an equal and even greater extent. It 
 is enough that the value of his land is enhanced by the construction of the 
 railroad through it, and he has no right to complain that the enhancement 
 is not peculiar to him alone. It might as well be insisted that the increased 
 value given to a marsh not before tillable, by cutting a canal through, so as 
 to drain it, should not be taken into consideration in estimating the advan- 
 tages which the owner of such marsh would derive from the construction of 
 the canal, as that the construction of a railroad and the additional value 
 given to land along its immediate line should be excluded in estimating the 
 advantages of such road to the proprietor. One is as much a real benefit as 
 the other. So, too, the injuries which the proprietor suffers by having his 
 farm divided so as to make it inconvenient to pass to and from its different 
 parts, and to compel him to erect additional fences ; and all other injuries of 
 a like character, occasioned by the construction of a public work through 
 it, are as proper subjects of inquiry in estimating the damages sustained 
 thereby, as is the value of the land actually appropriated to public use. 
 We do not appreciate the distinction drawn by the Kentucky courts be- 
 tween the money value of the land appropriated to public use, and what 
 they call incidental disadvantages, such for instance, as the owner of a tract 
 of land would sustain by having part of the land flooded in consequence of 
 the construction of a public work over it. The true rule in estimating the 
 advantages and disadvantages, is to take into consideration all which are 
 appreciable, for the law makes no reservation or restriction." 
 
 1 Nicholson •„. N. Y. and N. H. R. K. Co., 22 Conn. 88 ; Nichols v. City 
 of Bridgeport, 23 id. 189. 
 
AND REAL ESTATE BY CONDEMNATION. 209 
 
 taken, and forming part of the same parcel or tract, 
 is to be allowed byway of set off; but not any 
 general benefit or increase of value, received by 
 such, land in common with other lands in the neigh- 
 borhood, as by the promotion of the general con- 
 venience, and the advance of its population, business, 
 and prosperity ; nor any benefit to other land of 
 the same owner, not connected with that which was 
 taken. 1 
 
 1 Meacham v. Fitchburg R. R. Co., 4 Cush. 291. Dewey, J. : " That there 
 must be some limitation of the proposition, that the respondents may show 
 in reduction of damages any collateral benefit which the petitioner has 
 received in his other property, seems quite obvious. The party whose land 
 has been taken for a railroad, has a right, in common with his other fellow- 
 citizens, to the benefit arising from the general rise of property in the vici- 
 nity, occasioned by the establishment of the railroad and the facilities con- 
 nected therewith. 
 
 " It would operate with great inequality to hold that where there are vari- 
 ous individuals, each owning large trading or manufacturing establishments 
 in the immediate vicinity of a railroad, but without being adjoining to or 
 connected with the located limits of such railroad, one of whom is the 
 owner of a parcel of land, situate in another part of the town over which 
 the railroad is actually located, that as to the latter he is, by way of reduc- 
 tion of damages for his land thus taken, to be charged for all the incidental 
 benefits which he receives from the location of the railroad in the vicinity 
 of his other land and establishment, while his neighbor who is equally 
 benefited is exempt from any contribution to this object. 
 
 " It is difficult to draw the line with precision, and at the same time to 
 establish a rule which will do equal justice to all concerned. The rule 
 which was taken at the hearing before the jury, we think, approximates as 
 nearly to the standard as any that can he adopted. It embraces the land as 
 to which damages are claimed and any land of the petitioner adjoining or 
 connected therewith, as one parcel or tract of land, and if in any portion of 
 such land the location of the railroad has occasioned a rise in value, and 
 the petitioner has received any peculiar benefit from the location of such 
 road, it is the duty of the jury to make a deduction by way of set-off, and 
 a reduction of damages ou account of such advancement in value of the 
 remaining portion of the lot or parcel of land. Thus limited to the land 
 adjacent to that taken for the railroad, or connected as one tract or parcel 
 of land therewith, the rule will be found reasonable and of easy applica- 
 
 15 
 
210 ACQUISITION" OF EIGHT OF "WAT 
 
 In other States, the benefits to be set off against 
 the injuries in assessing the damages, have been 
 limited to such as are peculiar to the owner, to the 
 
 tion. The great and leading principle, to authorize such reduction of 
 damages, is the direct benefit, or increase of value to the remaining part of 
 the tract or parcel of land by reason of the railroad's passing through the 
 lot or tract, as to which the damages are claimed. We approximate very 
 nearly, in this way, to the rule of direct benefit, or actual increase of value 
 in the adjacent land, and exclude the more uncertain and fanciful estimation 
 of anticipated advantages to other parcels, more or less remote, and which 
 share only in the common benefit of the lands of citizens generally. 
 
 "The further instructions to the jury upon this point seem to have been 
 entirely correct, and in accordance with the principle of the other ruling. The 
 respondents are not to have the benefit of any increase in value of the 
 petitioner's adjacent land, so far as he has been benefited by the railroad, 
 merely in common with all the citizens of the neighborhood or village, by 
 the anticipated general rise of property, by reason of the railroad's passing 
 through the town and in the vicinity of their lands. It is only the increased 
 value of the land of the petitioner, arising from the location of the road 
 over some part of it, which is to be taken into consideration. If such loca- 
 tion over the land of the petitioner has raised the value of his adjacent 
 lands, then a reduction or offset is to be allowed the respondents on that 
 account." In Upton v. South Reading Branch R. R. Co., 8 Cush. 600, it 
 was held, that the sheriff's jury in assessing the damages should be instruc- 
 ted as follows : " that if they were satisfied that the laying out and con- 
 struction of the railroad had occasioned any benefit or advantage to the 
 lands of the petitioner through which the road passed, or lands immediately 
 adjoining, or connected therewith, rendering the part not taken for the 
 railroad more convenient or useful to the petitioner, or giving it some 
 peculiar increase in value, compared with other lands generally in the 
 vicinity, it would be the duty of the jury to allow for such benefit or 
 increase of value, by way of set-off in favor of the railroad company ; but 
 on the other hand, if the construction of the railroad by increasing the con- 
 venience of the people of the town generally, as a place for residence, and 
 by its anticipated and probable effect in increasing the population, business, 
 and general prosperity of the place, had been the occasion of an increase 
 in the salable value of real estate generally near the station, including the 
 petitioner's land, and thereby occasioning a benefit or advantage to him in 
 common with other owners of real estate in the vicinity, this benefit was 
 too contingent, indirect, and remote to be brought into consideration in 
 settling the question of damages to the petitioner for taking his particular 
 parcel of land." 
 
AND REAL ESTATE BY CONDEMNATION. 211 
 
 exclusion also of benefits to land disconnected from 
 the tract a part of which is taken. 1 
 
 The allowance for benefits as a set-off to the dam- 
 ages, has been regarded in some States as unjust to 
 the landowner, so as to induce statutory or consti- 
 tutional prohibitions against it or a strict construc- 
 tion of the laws providing for it. 2 The general 
 railroad act of New York provides that the com- 
 missioners in determining the amount of the compen- 
 sation, "shall not make an allowance or deduction 
 on account of any real or supposed benefit which the 
 parties in interest may derive from the construction 
 of the proposed railroad." 8 Appraisers under this 
 section are not authorized to make an appraisement 
 of the owner's land on condition of a reservation of 
 easements and privileges to him. 4 The constitution 
 of Ohio prohibits any deduction for benefits in de- 
 termining the compensation. 5 
 
 A distinction has been taken, that in fixing a just 
 compensation benefits cannot be set off against the 
 
 1 Phil, and Reading R. R. Co. v. Gilson, 8 Watts, 243 ; Milwaukie and 
 Mississippi R. R. Co. v. Eble, 4 Chandler (Wis.) 12; see Little Miami R. R. 
 Co. v. Collett, 6 Ohio State, 182. 
 
 3 M'Mahon v. Cincinnati and Chicago Short Line R. R. Co. 5 Ind. 413 ; 
 Newcastle and Richmond R. R. Co. v. Brumback, id. 543 ; Eward v. Law- 
 renceburgh and Upper Mississippi R. R. Co. 1 id. 111. 
 
 8 Sec. 16, 1 Rev. Stat. (4th ed.) 1111. See Albany and Northern R. R. 
 Co. v. Lansing, 16 Barb. 69; 2 Am. Rail. Cas. p. 185, note. 
 
 4 Hill v. Mohawk and Hudson River R. R. Co. 5 Denio, 206 ; 3 Selden, 
 152. 
 
 1 Art. 1, sec. 19; Art. 13, sec. 5. The provisions of Art. 1, sec. 19, and 
 art. 1 3, sec. 5 — the one requiring compensation to be made without deduction 
 for benefits, when property is appropriated to a public use, and the other 
 providing for compensation irrespective of benefits when it is taken by a 
 corporation for a right of way, — are in legal effect identical. Giesy v. C. W. 
 and Z. R. R. Co. 4 Ohio State, 308. 
 
212 ACQUISITION OP EIGHT OF "WAT 
 
 value of the land taken, but may be set off against 
 other incidental damages arising to the owner. 1 
 
 In Iowa, the rule adopted in determining the "just 
 compensation " required by the constitution, is to 
 ascertain first the fair marketable value of the prem- 
 ises over which the improvement is to pass, irrespect- 
 ive of such improvement ; and also a like value of 
 the premises in the condition in which they will be 
 after the land has been taken, irrespective of the 
 benefit which will result from the improvement ; and 
 the difference in value is to constitute the measure 
 of compensation. 2 
 
 Joinder of Pabties. — Parties having joint or 
 several legal or equitable interests in the same estate, 
 are generally allowed by statute to join in a pro- 
 ceeding for damages to the estate. 8 Where the 
 interests are several, the statute may not require 
 them to join, and a tenant for life may have the 
 damages assessed to the life-estate without joining 
 the remainderman. 4 There can be no reason for 
 joining a party interested in the estate, who has no 
 interest for an injury to which damages will be 
 given. 5 One tenant in common cannot recover in 
 his own name the damages to his co-tenant's inter- 
 
 1 Jacob v. Louisville, 9 Dana, 114; Opelousaa R. R. Co. v. Lagarde, 10 
 La. An. 150. 
 
 J Sater v. Burlington and Mt. Pleasant Plank Road Co. 1 Clarke (Iowa), 
 386 ; Henry v. Dubuque and Pacific R. R. Co. 2 id. 288 ; ante, p. 204, note. 
 
 3 Ashby v. Eastern R. R. Co. 5 Met. 868 ; Proprietors of Locks and Canals, 
 <Ste., o. Nashua and Lowell R. R. Corp. 10 Cush. 386. 
 
 4 Reading R. R. Co. v. Boyer, 18 Penn. State, 497. 
 s Davidson v. Boston and Maine R. R. 3 Cush. 91. 
 
AND REAL ESTATE BY CONDEMNATION. 213 
 
 est, as well as to his own, although he is authorized 
 by his co-tenant to commence proceedings to recover 
 damages for him. 1 In Massachusetts, the parties 
 having interests at the time of the filing of the loca- 
 tion, are those who are entitled to recover the dam- 
 ages. Thus, where the land of an intestate is taken 
 for a railroad, the heir, and not the administrator, is 
 entitled to the damages for such taking, and to pros- 
 ecute for the recovery thereof, although the estate 
 is insolvent. 2 A tenant for years, under the Penn- 
 sylvania act regulating turnpike and plank road 
 companies, is an owner within its meaning, and enti- 
 tled to compensation for his interest. 8 
 
 Notice of Proceedings to Condemn Property. — 
 The statute authorizing the appropriation of private 
 property for the purpose of a railroad, usually re- 
 quires notice to be given to the owner, of the pro- 
 ceedings, as of the application for the appointment 
 of appraisers, or of the time and place of their meet- 
 ing. Such notice when prescribed must be given, to 
 make the proceedings valid ; and when none is pre- 
 scribed, upon the general principles of justice inde- 
 pendent of any statutory requirement, due notice 
 ought to be given. And when the form is not pre- 
 scribed, it should be such as to apprise the owner of 
 
 1 H. P. M and L. R. R. Co. v. Bucher, 1 Watte, 33. 
 
 3 Boynton v. Peterborough and Shirley R. R. Co. 4 Cush. 467. As to 
 proceedings in New York by railroad companies, where land is under mort- 
 gage, see In Re N. Y. Central R. R. Co., 20 Barb. 419. 
 
 3 Turnpike Road v. Brosi, 22 Penn. State, 29 ; Brown <,. Powell, 25 id. 
 229. 
 
214 ACQUISITION BY CONDEMNATION". 
 
 the proceedings to be instituted, and the property to 
 be taken. 1 The want of the required notice may be 
 waived by a party's entering his appearance, and 
 contesting the proceedings on the merits, but not by 
 a mere appearance and objection to their regularity. 2 
 The mere fact that the statute appropriating the 
 property does not provide for a notice to the owner, 
 does not make it unconstitutional ; as the court which 
 has cognizance of the proceedings can require due 
 notice to be given. 8 
 
 General Law of New York. — The proceedings 
 for taking land, prescribed in the charters of compa- 
 nies incorporated before the general law of New 
 York, enacted in 1850 and prescribing a different 
 mode, are not affected by such general law where 
 the provisions of the law and of the charters are 
 incompatible. The title vests if the provisions of 
 the charter are complied with, although those of the 
 general law are not followed. 4 
 
 1 Vanwickle v. R. R. Co. 2 Green, 166 ; Doughty ». Somerville and 
 Easton R. R. Co. 1 Zabris. 447 ; Vail v, Morris and Essex R. R. Co. 1 id. 189 ; 
 Coster v. N. J. R. R. Co. S id. 232, 233 ; 4 id. 783 ; Reitenbaugh v. Chester 
 Valley R. R. Co. 21 Penn. State, 100 ; Williams v. Hartford and N. H. 
 R. R. Co. 13 Conn. 397. 
 
 5 Mohawk R. R. Co. v. Arteher, 6 Paige, 83 ; Dyckman v. Mayor, &c, of 
 Hew York, 1 Selden, 434; Cruger v. Hudson River R. R. Co., 2 Kernan, 
 190. 
 
 8 Swan v. Williams, 2 Mich. (Gibbs) 427. 
 
 1 Hudson River R. R. Co. o. Outwater, 3 Sandf. 689 ; Vissoher v. Hudson 
 River R. R. Co. IS Barb. 37 ; Clarkson v. Same, 2 Kernan, 304. 
 
LOCATION OF THE ROAD. 215 
 
 CHAPTER IX. 
 
 LOCATION OF THE ROAD. 
 
 Route and Termini. — The authorized limits and 
 route of the railroad are determined by the charter. 
 The grant of power in the charter of a company to 
 construct a railroad, " commencing at or near the 
 city of Schenectady, and running thence on the 
 north side of the Mohawk river," authorized it to 
 commence the road at some point on the north side 
 of the river, near the city, or at some suitable point 
 on the south side, at or within the city, and then to 
 cross the river to the north side thereof, at its elec- 
 tion ; the river forming the northern boundary of the 
 city. 1 A charter, authorizing the construction of a 
 railroad "to the place of shipping lumber" on a 
 tide-water river, does not limit the right of location 
 to the upland or to the shore, but authorizes the 
 extension of the road across the flats and over tide 
 water, to a convenient place for reaching vessels. 8 
 The charter of a railroad company, having author- 
 ized it to construct its road from a city, it was held 
 that it had no authority to enter the city, but that 
 the boundary of the city was the terminus a quo} 
 
 An act of the legislature which authorizes the 
 
 1 Mohawk Bridge Co. v. Utica and Schenectady R. R. Co., 6 Paige. 554. 
 
 ' Peavey u. Calais R. R. Co. 30 Maine, 498. 
 
 3 North-Eastern R. R. Co. v. Payne, 8 Rich. 177. 
 
216 LOCATION OF THE ROAD. 
 
 construction of a railroad . between certain ter- 
 mini, without prescribing its precise course and 
 direction, does not prima facie confer the power 
 to take the road-bed of the highway for its track ; 
 but it is competent for the legislature to grant such 
 power, either by express words or necessary impli- 
 cation ; and such implication may result from the 
 terms of the act, or from its being shown, by an ap- 
 plication of the act to the subject-matter, that any 
 other location is impracticable. 1 "Where, in Ver- 
 mont, the railroad was located so as to be in many 
 places within the limits of a turnpike, and to cross 
 it at several places, it not being shown that there 
 was any other practicable route, or that the one 
 adopted was an unsuitable or improper one, the 
 location was held to be authorized. 2 There is no 
 presumption against a location which includes land 
 already taken by another corporation for public 
 use, under legislative authority, by virtue of the 
 right of eminent domain, where the uses of both can 
 stand together. 8 
 
 Where the routes selected by two companies, 
 incorporated to construct independent lines, inter- 
 fered — the termini only of each being prescribed, 
 and there behig no necessary conflict on the face of 
 the charter, or in their objects — the prior right to 
 particular land was held to attach to the company 
 
 1 Springfield v. Conn. Eiv. R. R. Co., 4 Cush. 63 ante, ch. ii. pp. 10, 11. 
 5 White River Turnpike Co. *. Vt. Central R. R. Co., 21 Vt. 690. 
 ' Boston Water Power Co. v. Boston and Worcester R. R. Corp., 23 Pick. 
 360. 
 
LOCATION OF THE ROAD. 217 
 
 which first actually surveyed and adopted a route, 
 and filed its survey according to law. 1 
 
 Where the intermediate points and the terminus 
 are not definitely fixed in the charter, a reasonable 
 discretion will be allowed to the company in select- 
 ing them. 2 A charter, providing for the location of 
 the road through certain towns, without specially 
 directing that it shall pass through them in the 
 order named, is complied with by the construction 
 of the road through all of them, though not in the 
 order named. 8 A party, it has been held in New 
 York, has no right to object to the location on the 
 ground of damage to his property, whose title and 
 possession do not extend back to the time when the 
 land was taken by the company. 4 
 
 In New Hampshire, the report of the commis- 
 sioners charged with the duty of laying out the 
 railroad, should contain a description of such fixed, 
 substantial, and visible monuments, from point to 
 point, that a jury on going upon the ground can 
 readily discover the location. 5 
 
 Filing of the Location. — The filing of the loca- 
 tion with the county commissioners, as required by 
 
 1 Morris and Essex R. R. Co. v. Blair, 1 Stockton, Ch., 635. 
 
 * Hentz v. Long Island R. R. Co., 13 Barb. 646 ; Newcastle and Rich- 
 mond R. R. Co. v. Penn. and Indianapolis R. R. Co., 3 Ind. 464. 
 
 3 Commonwealth v. Fitchburg R. R. Co., 8 Cush. 24. Petitions and 
 plans presented to the legislature are not admissible to affect the construc- 
 tion of the charter. Id. ; Boston and Providence R. R. Corp. v. Midland R. 
 R. Co., 1 Gray, 366. 
 
 * Hentz v. Long Island R. R. Co., 13 Barb. 646. 
 
 1 Northern R. R. Co. v. Concord and Claremont R. R. Co., 1 Foster, 183. 
 See Vail v. Morris and Essex R. R. Co., 1 Zabris. 189. 
 
218 LOCATION OF THE BO AD. 
 
 statute, is, in Massachusetts, the taking of the land ; 
 and the location as filed is conclusive evidence of the 
 land taken, in an action against the company by the 
 owner of the land on which it has constructed the 
 road. 1 
 
 Change of Location. — The power of the com- 
 pany to determine its location, when once exercised, 
 is exhausted. It may have a discretion as to the 
 selection of its intermediate points, or its route 
 between certain fixed points, but having exercised 
 the discretion, the location cannot be changed with- 
 out legislative authority. This is in accordance 
 with the ancient rule of the common law, that, " if 
 a man once determines his election, it shall be 
 determined forever."' 
 
 The power to change the location, to a certain 
 extent, is sometimes given by statute. 8 And where 
 an authority to change the location is given, it is 
 strictly construed. Thus, an authority to vary the 
 
 1 Charlestown Branch E. E. Co. v. County Commissioners, 7 Met. 78 ; 
 Boynton v. Peterborough and Shirley E. E. Co., 4 Cush. 467 ; Boston and 
 Providence E. E. Corp. u. Midland E. E. Co., 1 Gray, 361 ; Hazen v. Boston 
 and Maine E. E. Corp., 2 id. 574. See Morris and Essex E. E. Co. a. Blair, 
 1 Stockton, Ch., 636. 
 
 3 Com. Dig. Tit. " Election," C. 2. State v. Norwalk and Danbury Turn- 
 pike Co., 10 Conn. 167; Turnpike Co. v. Hosmer, 12 id. 364; Hudson and 
 Delaware Canal Co. «. N. Y. and Erie E. E. Co., 9 Paige, 323 ; Doughty v. 
 Somerville and Easton E. E. Co., 1 Zabris. 459 ; Louisville and Nashville 
 Branch Turnpike Co. v. Nashville and Ky. Turnpike Co., 2 Swan. (Tenn.) 
 282 ; Ex parte S. C. E. E. Co., 2 Eich. 434; Blakemore v. Glamorganshire 
 Canal Co., 1 My. <St Keene, 154 ; 1 CI. & Fin. 262 ; 3 You. & Jerv. 60 ; 1 Am. 
 Eail. Cas. 151, notes. See Works v. Junction E. E. Co., 6 M'Lean, 425. 
 
 8 Boston and Providence E. E. Corp. v. Midland E. E. Co., 1 Gray, 340 ; 
 Hudson Eiver E. E. Co. o. Outwater, 3 Sand. 689. 
 
LOCATION OF THE ROAD. 219 
 
 route and change the location after a selection, is 
 construed not to be an authority to change the loca- 
 tion after the road is constructed. 1 
 
 A party over whose land a railroad had been 
 constructed, was held entitled to damages upon the 
 original location being abandoned. 2 
 
 Expiration of Power. — The power of the com- 
 pany to take lands may be determined by the ex- 
 piration of the time within which, by the charter, 
 it is required to be exercised. 8 But the lan- 
 guage of the statute may be comprehensive enough 
 to authorize the condemnation of land after the 
 completion of the road, when required for its main- 
 tenance and operation. Thus, where a railroad 
 company was authorized to " maintain and continue 
 a railroad, with a single and double track, and with 
 such appendages as may be deemed necessary for 
 the convenient use of the same," it was held that the 
 power to acquire land by condemnation for work- 
 shops, and whatever is included in the term "ap- 
 pendages," is not exhausted by an apparent com- 
 pletion of the road, where the increase of its busi- 
 ness requires land for those purposes.* 
 
 1 Moorehead v. Little Miami R. E. Co., 17 Ohio, 340 ; Little Miami E. E. 
 Co. v. Naylor, 22 id. 235. 
 
 ' Baltimore and Susquehanna E. R. Co. v. Compton, 2 Gill, 20. See 
 Knors a. Germantown, &a., E. E. Co., 5 Wharton, 256; Butman v. Vt. 
 Central E. E. Co., 27 Vt. (1 Williams), 304. 
 
 s Peavey v. Calais E. E. Co., 30 Maine, 498 ; Eegina v. London and ST. 
 W. E. Co. 6 Eng. L. and Eq. 220; 1 Am. Rail Cases, 151, notes. See 111. 
 Central R. R. Co. v. Rucker, 14 111. 853. 
 
 * Chicago, Burlington, and Quiney R. R. Co. v. Wilson, 17 111. 123. 
 
220 LIABILITY FOR TORTS. 
 
 CHAPTER X. 
 
 LIABILITY OP THE COMPANY FOR TORTS IN GENERAL. 
 
 Liability at Common "Law. — The liability of a 
 railroad company for torts or actionable injuries, ex- 
 cept as enlarged by statute, is substantially the same 
 as that of individuals. The principle, sic utere tuo 
 ut alienum non Icedas, and its conditions as applied 
 to the relations of individuals, will in general fix the 
 limits of the company's responsibility in some form 
 or other. That responsibility may be, and often is, 
 extended by provisions in the charter, or in some 
 general law existing when the charter was given and 
 applicable thereto. It may be enlarged by police 
 regulations, or by statutes enacted in pursuance of a 
 power reserved in the charter, or by a general law 
 to alter or amend the charter. 1 The remedy of 
 the injured party may be changed so that he will 
 be confined to a special remedy provided by statute 
 in cases to which it is applicable, and thus precluded 
 from a resort to the ordinary common-law remedies. 
 But, in the absence of special legislative impositions, 
 the prinicples which determine the liabilities of pri- 
 vate persons for injuries to each other, will determine 
 the liabilities of railroad companies to parties suffer-' 
 
 1 Ante, oh. ill pp. 86-46. 
 
LIABILITY FOE TORTS. 221 
 
 ing injury from them. 1 The same common-law lia- 
 bility may be enforced against a railroad company 
 doing business in a State although incorporated in 
 a foreign State. 2 
 
 The obligation of the company to indemnify a 
 party for his property actually taken for its pur- 
 poses, arises from the first principles of common 
 justice. The appropriation thereof on any other 
 condition is prohibited by constitutional provisions. 
 
 The company is not only liable for land actually 
 taken by it, but for such injuries to the property of 
 others as an individual would be responsible for, 
 unless otherwise compensated. Thus, it is liable for 
 diverting a stream from its natural course, to the 
 injury of a neighboring proprietor, under such cir- 
 cumstances as would render an individual liable. 8 
 It is bound to indemnify him for the caving in of his 
 soil, on which there is no artificial weight, in conse- 
 quence of excavations on its land. 4 Where the com- 
 pany had constructed its road through a party's land, 
 and afterwards abandoned the original route, the 
 owner was held entitled to damages for the change 
 of location. 5 A railroad company constructing its 
 road over a turnpike belonging to an incorporated 
 
 1 See First Baptist Church of Schenectady v. Schenectady and Troy R. R. 
 Co. 5 Barb. 79 ; PhiL and Reading R. R. Co. „. Yeiser, 8 Barr, 366 ; Bur- 
 roughs v. Housatonic R. R. Co. 15 Conn. 124; Hooker v. N. H. and North- 
 ampton Co., id. 321. 
 
 a Austin ». N. Y. and Erie R. R. Co. 1 Dutcher, 381. 
 
 3 Whitcomb v. Vt. Central R. R. Co. 25 Vt. 68 ; Proprietors of Locks 
 and Canals v. Nashua and Lowell R. R. Corp. 10 Cush. 388. 
 
 4 Richardson v. Vt. Central R. R. Co. 25 Vt 466. 
 
 * B. and S. R. R. Co. v. Compton, 2 Gill, 20. See Butrnan v. Vt. Central 
 R. R. Co., 27 Vt. (1 Williams), 504. 
 
222 LIABILITY FOE TORTS. 
 
 company, has been held liable to the latter for the 
 damages. 1 
 
 According to the common law, the proprietor of 
 land is not responsible for consequential injuries to 
 another, resulting from the lawful use of his own 
 land. In the absence of prescriptive rights, he may 
 build on his own land whereby he darkens his neigh- 
 bor's windows, or excavate his own soil whereby 
 the foundations of his neighbor's buildings are weak- 
 ened, or perform any other lawful acts thereon, 
 using due care, and will not be responsible for any 
 indirect injuries thereby resulting to his neighbor. 2 
 
 This rule has been applied to railroad companies, 
 which, unless specially obliged by statute, are not 
 liable for consequential damages accruing in the 
 prudent construction and operation of their roads to 
 premises not taken by them. 8 Thus, excavations and 
 embankments made by the company in building its 
 road in a street in front of the plaintiff's store, 
 whereby access to it by customers and teams was 
 obstructed, and rain-water came into the basement, 
 were not actionable injuries. 4 
 
 1 Seneca Road Co. -n. Auburn and Rochester R. R. Co. 5 Hill, WO. 
 
 2 Callender v. Marsh, 1 Pick. 418; Spring v. Russel, 1 Greenl. 273 ; Lan- 
 sing v. Smith, 8 Cowen, 146 ; S. C. 4 Wend. 9 ; Radcliffe v. Mayor, &c, of 
 Brooklyn, 4 Comst. 195. 
 
 8 Burroughs v. Housatonic R. R. Co. 15 Conn. 126; Phil, and Reading 
 R. R. Co. 1/. Yeiser, 8 Barr, 366 ; Monongahela Nav. Co. o. Coons, 6 W. & S. 
 114 ; Henry v. Pittsburg and Allegheny Bridge Co. 8 id. 85 ; Mifflin v. R. R. 
 Co. 16 Penn. State, 193 ; Reitenbaugh v. Chester Valley R. R. Co. 21 id. 
 100 ; Hatch v. Vt. Central R. R. Co. 25 Vt. 49 ; Rogers v. Kennebec and 
 Portland R. R. Co. 85 Maine, 323 ; Whittier v. Same, 38 id. 26 ; Bailey v. 
 Phil. Wil. and Bait. R. R. Co. 4 Harring. 389. 
 
 4 Hatch v. Vt. Central R. R. Co. 25 Vt. 49 ; Richardson v. Same, 25 id. 
 465. But see Miller v. Auburn and Syracuse R. R. Co. 6 Hill, 61. 
 
liability for toets. 223 
 
 Liability at Common Law enlarged by Stat- 
 ute. — A company accepting a charter imposing a 
 greater liability than that imposed on an individual 
 at common law, or required by the constitutional 
 restriction on the exercise of the right of eminent 
 domain, becomes, as already stated, subject to such 
 enlarged liability. The intention of the legislature 
 to impose it, where the company is authorized to 
 interfere with private property, is inferred in some 
 States from quite general terms, as from a provision 
 requiring it to pay the damages sustained or occa- 
 sioned by the laying out, making, and maintaining 
 of the road. 1 The construction of the statutes im- 
 posing this liability, and the injuries to be included in 
 the assessment of damages have already been discus- 
 sed in the chapter on the acquisition by the company 
 of a right of way and real estate by condemnation. 2 
 
 Injuries exclusively within the Statute Rem- 
 edy. — The competency of the legislature to substi- 
 tute a statute remedy for obtaining compensation in 
 place of the ordinary common-law actions, where by 
 virtue of the right of eminent domain, it authorizes 
 the company to take private property for its purposes, 
 is unquestioned. In most of the States, county com- 
 
 1 Dodge v. Comity Commissioners of Essex, 3 Met. 380 ; Ashby v. Eastern 
 R. R. Co. 5 id. 368 ; Parker v. Boston and Maine R. R. Co. 3 Cush. 107 ; 
 Dearborn v. Boston, Concord, and Montreal R. R. Co. 4 Foster, 179 ; Hatch v. 
 Vt. Central R. R Co. 25 Vt. 60. Sabin v. Vt. Central R. K. Co. 25 id. 363 ; 
 Bradley v. N. Y. and N. H. R. R. Co. 21 Conn. 294 See Nicholson v. N. Y. 
 and N. H. R. R. Co. 22 id. 74; Clark v. Saybrook, 21 id. 313. See ante, ch. 
 viii. p. 184. 
 
 a Ante, ch. viii. pp. 184-198. 
 
224 LIABILITY FOR TOKTS. 
 
 missioners, road commissioners, special railroad com- 
 missioners, or some other board of appraisers are 
 appointed to appraise the damages to such injured 
 parties. A trial by jury in such a case, although 
 sometimes provided for on appeal, we have seen, is 
 not necessary to answer the general constitutional 
 provision requiring a trial by jury. 1 The assessment 
 of damages by this special tribunal is a bar to an 
 action for such injuries as could have been properly 
 included by it in the award. Whether the tribunal 
 did in fact take into consideration a particular injury, 
 cannot afterwards be inquired into collaterally. 
 Except in a direct proceeding to set the award aside, 
 or on appeal, the due performance of its entire duty 
 and the estimate of all damages which could have 
 been rightfully included in the award, are to be 
 conclusively presumed. The special remedy is also 
 exclusive of the common-law remedies. The gen- 
 eral principle has received repeated confirmation, 
 that where the legislature in the constitutional exer- 
 cise of the right of eminent domain, authorizes an 
 act the necessary consequence of which is to injure 
 the property of another, and at the same time pre- 
 scribes the particular mode in which the damages 
 shall be ascertained and compensated, giving to the 
 injured party the right to put the same in motion, 
 the person or corporation acting under such author- 
 ity, and within the scope thereof, is not a wrong- 
 doer, nor liable to an action for a tort, but must be 
 proceeded against under the statute remedy. This 
 
 ' See ante, ch. viii. p. 166 ; also Whiteman v, R. R. Co. 2 Harring. 514. 
 
LIABILITY FOE TORTS. 225 
 
 rule applies both where the injuries are actionable 
 at common law, or only by reason of additional lia- 
 bility imposed by statute. 1 
 
 Thus, in Massachusetts where the company was 
 by statute " liable to pay all damages that shall be 
 occasioned by laying out and making, and maintain- 
 ing their road, or by taking any land or materials," 
 it was held, that blasting in a proper manner a 
 ledge of rocks through which the railroad passes, 
 in a place where due precaution can be taken to 
 prevent injury to persons, is a reasonable and ap- 
 propriate mode of executing such a work ; and in- 
 juries resulting therefrom to buildings near but out- 
 side of the line of the railroad, must be assessed by 
 the county commissioners, the tribunal appointed by 
 the statute, and cannot be made the subject of an 
 action at common law. 2 In New Hampshire, where 
 the railroad commissioners in conjunction with the 
 road commissioners for the county where the lands 
 
 1 Stowell v. Flagg, 11 Mass. 364 ; Stevens v. Middlesex Canal 12 id. 466 ; 
 CalkiDg v. Baldwin, 4 Wend. 667 ; Lebanon ». Olcott, 1 N. H. 339 ; Woods 
 v. Nashua Manufae. Co. 4 id. 527 ; Null v. White Water Canal Co. 4 Ind. 431 ; 
 Furniss v. Hudson River R. R. Co. 5 Sandf. 681 ; Hueston v. Eaton and Ham- 
 ilton R R. Co. 4 Ohio State, 685 ; Yeiser v. Phil, and Reading R. R. Co. 8 
 Barr, 366 ; Stevens v. Jeacoeke, 11 Q. B. 731 ; ante, ch. viii. p. 168. The 
 statute remedy is not exclusive in Georgia. Carr v. Georgia R. R. Banking 
 Co. 1 Kelly, 624. Where a public duty of building farm-crossings is im- 
 posed on the company, and a special remedy provided, by -which the owner 
 can build them himself, and recover the cost of the company, the remedy 
 has been held cumulative, and not to exclude a common-law action for 
 damages. Green v. Morris and Essex R. R. Co. 4 Zabris. 486. 
 
 * Dodge v. County Commissioners of Essex, 3 Met. 380. A ease very 
 similar to this arose in Vermont, and was decided in the same way. Sabin 
 v. Vt. Central R. R. Co.. 25 Vt. S63. 
 
 16 
 
226 LIABILITY FOE TORTS. 
 
 taken lie, are required to assess "the damages 
 sustained " by the owners of the lands, it is con- 
 sidered that the damages sustained are to be such 
 as may fairly result to the landowner by the build- 
 ing of the road in a suitable and proper manner, 
 not only on account of the land actually taken, but 
 on account of the injuries to his other land and 
 property, and the inconveniences to which he is 
 subjected. They are to take into consideration, and 
 assess all damages, direct and consequential, present 
 and prospective, certain and contingent which may be 
 judged by them fairly to result to the landowner 
 by the loss of his property and rights, and the 
 injuries thereto. All such damages which result 
 from building the road in a suitable and proper 
 manner, are conclusively presumed to have been 
 included in the award of the commissioners, or the 
 verdict of the jury on appeal, so as to preclude any 
 subsequent action at law therefor. Thus, where 
 the spring of a landowner which permanently sup- 
 plied his house with water and irrigated his land, 
 had been cut off by the company in constructing 
 the railroad, it was held that this injury must have 
 been considered by the commissioners, that the 
 remedy by award is final except on appeal, and 
 that an action for the injury complained of could 
 not be sustained. 1 So, where the company in con- 
 structing the railroad caused a cut to be made 
 through an individual's land, dividing a way which 
 
 1 Aldrich v. Cheshire E. E. Co., 1 Foster, 359. 
 
LIABILITY FOR TORTS. 227 
 
 he had made on his own land for his private use, 
 leading from one part of his farm to another, and 
 also dividing his pasture, and the plaintiffs land- 
 damages had been assessed, these were decided to 
 be injuries which it was the duty of the commis- 
 sioners to consider in their award, and they must be 
 conclusively presumed to have done so, and therefore 
 no action could be sustained on account of them. 1 
 
 Where a part of the owner's land was liable to 
 be washed, and to cave off at a bank, and the sand 
 drifted from the railroad to the injury of his adjoin- 
 ing land, — such injuries, resulting unavoidably from 
 building the railroad in a suitable and proper man- 
 ner, were to be compensated in the award, and could 
 not be made the basis of an action at law. 2 In Maine, 
 it has been decided that the provision in the charter 
 of the Kennebec and Portland Railroad Company 
 for the assessment of damages by the county com- 
 missioners, includes injuries which may be done to 
 the owner by the erection of an embankment upon 
 the site of the railroad, whereby communication is 
 destroyed between the parts of the land which lie 
 
 * Clark v. Boston, Concord, and Montreal B. E., 4 Foster, 114. The N. 
 II. act of 3d July, 1847, giving a right of action for injuries or inconve- 
 niences by altering or obstructing a highway, turnpike, bridge, or private 
 way, does not include a private way which one has on his own land; for 
 altering or obstructing which the commissioners must be presumed to have 
 allowed damages in their award. 
 
 2 Dearborn v. Boston, Concord, and Montreal E. E., 4 Foster, Hi). It 
 was decided in this case that where, on appeal to a jury, the railroad is built 
 before trial, the jury may decide whether it is properly built, and what 
 damages are proper, but they are to assess them as of the time when the 
 commissioners passed upon the subject. 
 
228 LIABILITY FOR TOBTS. 
 
 upon the opposite sides of the railroad, for which, 
 therefore, an action at law cannot be sustained. 1 
 
 The company is authorized to do all acts within 
 the limits of its location, which are necessary and 
 proper for the construction of its road ; and for the 
 performance of such acts it is not liable to an action 
 at law. The owner, although still retaining the fee 
 of the land included in the location, is conclusively 
 presumed to have received compensation in the 
 mode prescribed by law for all injuries necessarily 
 resulting from the execution of the authority vested 
 in the company. Thus, it is not liable for cutting 
 trees growing within its limits whether used for 
 shade, ornament, or fruit, and whether cut at the 
 time of laying out the track or afterwards. 2 
 
 The statute remedy does not exclude actions at 
 common law for the torts of the company, for which 
 the special tribunal had no right to assess damages. 
 In the assessment, they are to presume that the 
 company will execute its authority in a lawful and 
 proper manner. Therefore, if it transcends or 
 abuses its powers to the special injury of a party, 
 he will have his remedy at common law. 3 Thus, it 
 is liable at common law where having exhausted its 
 power of location, and without a power given by 
 statute to change the same, it relocates its road to 
 
 1 Mason v. Kennebec and Portland R. R. Co., 31 Maine, 215. 
 
 J Brainard v. Clapp, 10 Cnsh. 6; see ante, eh. ii., pp. 14-18. 
 
 s Mason v. Kennebec and Portland R. R. Co., 31 Maine, 215 ; Rogers v. 
 Same, 35 id. 319 ; Vt. Central R. R. Co. v. Baxter, 22 Vt. 365; Hooker ». 
 "S. H. and Northampton Co., 15 Conn. 312 ; Crawfordsville and Wabash R. 
 R. Co. u. Wright, 5 Ind. 252 ; Turner v. Sheffield, <fcc. R. Co., 10 Mees. 
 <fe Wels. 425 ; ante, ch. viii., pp. 169, 170. 
 
LIABILITY FOR TORTS. 229 
 
 the special injury of a landowner, 1 or constructs its 
 road outside of the limits of its authorized location. 2 
 It may be proceeded against at common law for the 
 unlawful obstruction of an easement, as of a right 
 of drainage, where such obstruction is unauthorized. 8 
 So, also, if it constructs its road in an improper and 
 unlawful manner, or executes its work negligently 
 or improperly, whereby unnecessary damage is done, 
 it is liable to an action at common law by the 
 injured party. 4 Thus, in constructing the railroad, 
 necessary damages by blasting rocks within its line, 
 which are thereby thrown on the adjoining land, are 
 to be included in the assessment ; but it is the duty 
 of the company to remove the stones thus thrown on 
 the adjoining land within a reasonable time, and for 
 the breach of the same it will be liable to an action 
 on the case. 6 Where by making in an imperfect 
 manner sluices or other passages for streams which 
 the railroad crosses, the land of the adjoining pro- 
 prietors is injured, the company is liable whether 
 any portion of the land was taken or not, and 
 whether damages for land taken had been appraised 
 
 1 Little Miami R R. Co. v. Naylor, 2 Ohio State, 256. 
 
 2 Hazen v. Boston and Maine R. R. Corp., 2 Gray, 674. It -was held in 
 this case, that in an action of trespass by the owner of land against the 
 company for entering upon his land, and there constructing its road, the 
 burden of proof rests on the company to show in its justification that the 
 locus in quo is covered by the authorized location. 
 
 " Proprietors of Locks and Canals v. Nashua and Lowell R. R. Corp., 10 
 Cush. 886. 
 
 4 Dodge v. County Commissioners of Essex, S Met 383 ; Hatch v. Vt. 
 Central R. R. Co., 25 Vt. 63 ; Dearborn v. Boston, Cone, and Montreal R. R. 
 Co., 4 Foster, 187 ; Davis v. London and Blackwall R. Co., 1 Man. <fe Gr. 799. 
 
 5 Sabin ». Vt. Central R. R. Co., 26 Vt. 363. 
 
230 LIABILITY FOE TORTS. 
 
 or not. 1 It has been held, that the company will 
 be liable in an action for such injuries as could not, 
 from the special circumstances, have rightfully been 
 included in the appraisement of damages. Thus, 
 the use of the adjoining land for a cartway was 
 considered to be of this description, because it could 
 not have been known beforehand with any degree 
 of practical certainty how much material it would 
 be necessary to bring from a distance, or at what 
 point it would be necessary to use the adjoining 
 land as a cartway, or whether any necessity to use 
 it at all would occur. 2 
 
 The rule that the party injured is confined to the 
 remedy against the company prescribed by the 
 legislature, applies only where the remedy has been 
 availed of by the company, or if not, it is in the 
 power of the plaintiff to resort to it. If both 
 parties have the power to carry the statute remedy 
 into effect, and there is no prior obligation on the 
 company to resort to it, the injured party cannot 
 avail himself of an action at common law, and is 
 confined to that remedy. But if the company alone 
 can put it into operation or is under a special obli- 
 gation to carry it into effect, and has not done so, 
 the injured party is not deprived of his remedy by 
 action. 8 The statute of limitations will bar the 
 
 1 Whitoomb v. Vt. Central E. E. Co., 25 Vt. 69 ; Proprietors of Locks 
 and Canals v. Nashua and Lowell R. R. Corp., 10 Cush. 388. 
 
 2 Sabin v. Vt. Central R. R. Co., 25 Vt. 363 ; see Lancashire and York- 
 shire Railway Co. v. Evans, 19 Eng. L. <fe Eq. 295. 
 
 3 Calking ■„. Baldwin, 4 Wend. 667 ; Bradley v. N. Y. and N. H. R. R. 
 Co., 21 Conn. 294; Nicholson v. N. Y. and N. H. R. R. Co., 22 id. 14; 
 Hooker v. N. H. and Northampton Co., 15 id. 324. 
 
LIABILITY FOR TORTS. 231 
 
 • 
 
 special remedy where an action for the injuries com- 
 plained of, if done without authority of statute, 
 would be barred. 1 
 
 The company when acting under color of legis- 
 lative authority in attempting to appropriate pri- 
 vate property for its purposes, may be liable to an 
 action at common law where the act which assumes 
 to authorize the appropriation conflicts with the 
 constitutional prohibition against taking private 
 property for public use without just compensation. 2 
 
 Penal Action. — Where a penal action is pro- 
 vided against the company, a party availing himself 
 of it must bring his case strictly within the statute 
 giving the remedy. Thus, where the commissioners 
 in assessing damages may order the company to 
 build certain structures for the benefit of the owner, 
 and are required in their order to prescribe the 
 time and manner of building them, an action 
 brought to recover a penalty for the neglect of 
 the company to fulfill it, cannot be sustained if the 
 commissioners omitted in their order to prescribe 
 the time within which the structures should be 
 completed. 8 The legislature may remit a penalty 
 imposed on the company without violating the 
 rights of a municipal corporation for whose use the 
 same was to be forfeited. 4 
 
 1 Forster v. Cumberland R. R. Co., 23 Penn. State, 371. 
 
 5 Perry v. Wilson, 7 Mass. 393 ; Stevens v. Middlesex Canal, 12 id. 466 ; 
 Cushman ti. Smith, 34 Maine, 247 ; Hueston v. Hamilton and Eaton R. R. 
 Co., 4 Ohio State, 689; People v. Hillsdale and Chatham Turnpike Co., 2 
 Johns. 190; see ante, eh. viii., p. 171. 
 
 3 Keith v. Cheshire R. R. Corp., 1 Gray, 614. 
 
 * Maryland v. Baltimore and Ohio R. R, Co. 3 How. 534 ; S. C. 12 Gill, 399. 
 
232 LIABILITY FOE TOETS. 
 
 • 
 
 Indictment of the Company. — The company is' 
 indictable for a nuisance in unlawfully obstructing 
 tue highway by building stations within its limits, 
 or, where it is authorized to cross it, by keeping its 
 cars on the highway an unnecessary length of time. 
 The rule is now well settled that a corporation is 
 indictable for a misfeasance which is a nuisance, as 
 well as for a non-feasance. 1 If the company, either 
 iu the mode of construction or by laying its track 
 on the highway without authority, unlawfully in- 
 terferes with a street or highway to the special 
 damage of an adjoining owner, he is entitled to a 
 remedy by action. 8 
 
 The company may be made liable by statute to 
 an indictment for breach of public duty, where it 
 would not be liable at common law, as for fatal 
 injuries to passengers by the negligence or miscon- 
 duct of its servants. 8 
 
 Liability foe Tobts of Servants. — A railroad 
 company is liable to an action for the tortious acts 
 
 1 State v. Morris and Essex R. R. Co., S Zabris. 360 ; S. C, 1 Dutcher, 
 437 ; State v. Vt. Central R. R. Co., 21 Vt. (1 Williams) 103 ; Commonwealth 
 v. Nashua and Lowell R. R. Co., 2 Gray, 54; Commonwealth o. New Bed- 
 ford Bridge, id. 339 ; Commonwealth v. Vt. and Mass. R. R. Corp., 4 id. 22 ; 
 Proprietors of Locks and Canals v. Nashua and Lowell R. R. Corp. 10 Cush. 
 388 ; Queen v. Great Northern R. Co., 9 Q B. 315 ; 58 E. C. L. ; Queen -t). 
 Wilson, 18 Q. B. 348 ; 83 E. C. L. ; Angell and Ames on Corp., ch. xi. § 9. 
 Contra, State v. Great Works Milling Manufacturing Co., 20 Maine, 41. 
 
 5 Little Miami R. R. Co. v. Naylor, 2 Ohio State, 235 ; Parrot v. C. H. 
 and D. R. R. Co., 3 id. 330 ; Hughes v. Providence and Worcester R. R. Co., 
 2 R. I. 493 ; Proprietors of Locks and Canals v. Nashua and Lowell R. E. 
 Corp. 10 Cush. 388. 
 
 3 Carey v. Berkshire R. R. Co., 1 Cush. 475; Boston, Concord and Mon- 
 treal R. R. Co. v. State, 32 N. H. 215 ; see ante, ch. iii., pp. 42, 43. 
 
LIABILITY FOR TORTS. 233 
 
 of its servants while acting in the course of their 
 employment and within the powera conferred by 
 the charter. 1 It is the duty of the company to 
 keep servants at its stations, with authority to act 
 for it in matters proper to be transacted there ; and 
 persons having this authority will make the com- 
 pany liable for a conversion made by them on its 
 behalf. 2 The company is liable for the acts of its 
 servants while acting in the course of their employ- 
 ment, although directly contrary to its instructions. 8 
 But it is not responsible for an unauthorized willful 
 trespass of its servants. 4 Thus, where a watchman 
 in the employ of the company, while the plaintiff's 
 steamboat, which was fastened to its wharf, was 
 on fire in the night season, and while the fire could 
 have been extinguished, and before it had endan- 
 gered the company's property, cut the cable of the 
 boat, which then drifted away and was burned, the 
 act of the watchman was considered to be beyond 
 his implied authority, and not being expressly 
 authorized, did not make the company liable. 5 
 It has even been held that the corporation is not 
 
 1 Eastern Counties E. Co. v. Broom, 2 Eng. L. and Eq. 406 ; Lowell 
 v. Boston and Lowell E. R. Corp. 23 Pick. 31 ; Burton v. Phil, and Eeading 
 E. E. Co., 4 Barring. 252; Crawfordsville and Wabash E. E. Co. v. Wright, 
 5 Ind. 252 ; State v. Morris, 3 Zabris. 367. See Goodspeed v. East Haddam 
 Bank, 22 Conn. 630; Watson v. Bennett, 12 Barb. 196. 
 
 * Giles v. Taff E. Co. 2 El. and Bl. 822; S. C. 15 E. C. L. See Glover v. 
 London and IT. W. R. Co., 5 Exch. 66. 
 
 * Phil and Eeading E. E. Co. v. Derby, 14 How. 468. See Southwick 
 v. Estes, 7 Cush. 385. » 
 
 4 Id. ; Lowell v. Boston and Lowell E. E. Corp., 23 Pick. 81. 
 
 5 Thames Steamboat Co. v. Housatonic R. R. Co., 24 Conn. 40. See 
 Crocker v. New London, Willimantic and Palmer R. R. Co., id. 249. 
 
234 LIABILITY FOE TORTS. 
 
 liable for a willful trespass, even when authorized 
 by its president and general agent. 1 Nor is the 
 company responsible for the fraudulent representa- 
 tions of its agents in matters beyond the scope of 
 the authority it has actually or presumptively con- 
 ferred upon them. 2 
 
 The liability of the company for the torts of its 
 servants in transactions which are in violation of 
 the charter, and yet are authorized by the company, 
 is not settled. 8 Thus, in constructing the railroad, 
 if the agents turn aside to build a dam or reservoir 
 for the mere benefit of an adjacent owner, this 
 being outside of the authority conferred by law, 
 the company is not responsible for torts committed 
 in its construction or for its improper construction. 
 But where it constructs such a dam or reservoir as 
 incidental to its main work and for the purpose of 
 diminishing the cost of the road, and there is no 
 such essential departure from the charter powers as 
 to notify the public thereof and justify resistance on 
 their part, the company has been held liable for the 
 torts of its agents in its erection ; as, where injury 
 is occasioned to other parties by the washing away 
 of the dam through the unskillfulness of the work. 4 
 
 Fokm of Action against the Company foe the 
 Toets of its Agents. — An action of trespass lies 
 
 1 Vanderbilt v. Richmond Turnpike, 2 Comst. 479. But see Eastern 
 Counties E. Co. „. Broom, 2 Eng. L. and Eq. 406 ; S. C, 6 Exch. 317 ; Roe 
 ■a. R. Co., 7 Exch. 36, 40. ♦ 
 
 ' Mechanics' Bank v. N. Y. and N. H. R. R. Co., 3 Kernan, 599. 
 
 3 See, ante, ch. vi. pp. 130-137. 
 
 4 Jones v. W. Vt. Central R. R. Co., 27 Vt. (1 Williams), a99. 
 
LIABILITY FOE TOETS. 235 
 
 against a corporation where the trespass is author- 
 ized or subsequently ratified by it. 1 An action on 
 the case is the proper remedy where the injury was 
 not done by the express command or assent of the 
 company, but by the negligence of its agent while 
 acting in the course of his employment. 2 
 
 Responsibility for the Torts of Contractors 
 and of their Servants. — The company is, in gen- 
 eral, responsible for the torts of only such persons 
 as sustain towards it the relation of agents or ser- 
 vants. It is important to ascertain what circum- 
 stances create this relation, so as to determine its 
 liability. 
 
 The relation of principal and agent, of master and 
 servant, does not subsist where the employee exer- 
 cises an independent employment, and is not under 
 the immediate direction of the employer. Thus, if 
 A lets out a piece of work to B, and B or his ser- 
 vant, while engaged in performing it, injures 0, A is 
 not responsible ; for B and the persons employed by 
 him are not the servants of A. This doctrine is now 
 
 1 Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 9 ; Dater v. 
 Troy Turnpike and R. R. Co., 2 Hill, 629 ; Mayor, &a. New York v. Bailey, 
 2 Denio, 439 ; Whiteman v. W. and S. R. R. Co., 2 Harring. 514; Crawfords- 
 ville and Wabash R. R. Co. v. Wright, 5 Ind. 252 ; Eastern Counties R. Co. 
 v. Broom, 5 Exch. 314; S. C. 2 Eng. L. and Eq. 406. 
 
 a Phil., Ger., and Norristown R. R. Co. v. Wilts, 4 Whart. 143 ; 111. Cen- 
 tral R. R. Co. u. Reedy, 17 111. 580 ; Sharrod v. London and N. W. R. Co., 
 4 Eng. L. and Eq. 401 ; Thames Steamboat Co. ». Housatonic R. R. Co., 24 
 Conn. 40 ; Crocker v. New London, Willimantic, and Palmer R. R. Co., id. 
 249. But see Sabin v. Vt. Central R. R. Co., 25 Vt. 371. 
 
236 LIABILITY FOE TOETS. 
 
 well established in England. 1 It is also the pre- 
 vailing rule in this country. 2 The rule as laid down 
 in England, has there been applied to railroad com- 
 panies. Thus, where the company had let out a 
 portion of its line for construction to a contractor, 
 and workmen employed by him, in constructing a 
 bridge over a public highway, negligently caused 
 the death of a person passing beneath along the 
 highway by allowing a stone to fall upon him, the 
 company was held not liable, notwithstanding in 
 the contract it reserved the power of insisting on 
 the removal of careless and incompetent workmen. 8 
 So, where the workmen employed by a contractor who 
 had entered into an agreement with the company to 
 do the work, while excavating a road for the pur- 
 pose of making an embankment for the railway, cut 
 into a drain or culvert whereby the water was let 
 out over the plaintiff's land, and his crops were dam- 
 aged, the company was held not responsible, although 
 
 ' 1 Parsons on Cont, 88-93 ; Story, Agency, § 454 (a) ; Knight v. Fox, 1 
 Eng. L. & Eq., 477 ; Peachey v. Rowland, 16 id. 442, and notes. 
 
 2 Blake v. Ferris, 1 Selden, 48 ; Pack v. Mayor, Ac, New York, 4 id. 222 ; 
 Stevens v. Armstrong, 2 id. 435 ; Gourdier v. Cormack, 2 E D. Smith, 264 ; 
 Hilliard v. Richardson, 3 Gray, 349 ; Carman v. Steubenville and Indiana 
 R. R. Co., 4 Ohio State, 399 ; Vermont Central R. R. Co. v. Baxter, 22 Vt. 
 372 ; Blattenherger v. Schuylkill Nav. Co., 2 Miles, 809 ; Phil, and Havre de 
 Grace Steam Tow Boat Co. v. P. W. and B. R. R. Co. (U. S. Dist. Court for 
 Maryland Dist.) 5 Am. Law Reg. (March, 1857), p. 280 ; Camp v. Wardens 
 of Church of St. Louis, 7 La. An. 321 ; Barry v. City of St. Louis, 17 Miss- 
 ouri, 121 ; Morgan v. Bowman, 22 id. 538 ; De Forrest v. Wright, 2 Mich. 
 368. But see Wiswall v. Brinson, 10 Iredell, 554 ; Stone v. Codman, 15 Pick. 
 297 ; Mayor, &c, New York v. Bailey, 2 Denio, 433 ; Semple v. London, <fcc, 
 R. Co., 1 Eng. Rail. Cas. 480 ; Stone v. Cheshire R. R. Corp. 19 N. H. 427. 
 
 3 Reedie v. London and N. W. R. Co., 4 Exeh. 244 ; Hobbit v. Same, id. 
 254. 
 
LIABILITY FOE TORTS. 237 
 
 it employed its own surveyor to superintend the 
 work. 1 
 
 The3e cases proceed on the ground, that the per- 
 sons by whom the injuries are committed were not 
 selected by the company, and are not under its 
 control, but are employed and controlled by the 
 contractor. They are, therefore, the servants of the 
 contractor, who is responsible for them. 
 
 The decisions in Massachusetts seemed at one time 
 to be in contravention of these principles. Thus, 
 a railroad company which had let the construction 
 of a portion of its road to a contractor, for a stipu- 
 lated sum, who was to employ all the workmen for 
 the purpose, was held liable for injuries to persons 
 who fell into a deep cut which had been left open, 
 and the barriers not replaced, by the workmen. It 
 was considered that the work was done for the 
 benefit of the company, under its authority, and by 
 its direction. It was therefore to be regarded as 
 the principal, and it was immaterial whether the 
 work was done under contract for a stipulated sum, 
 or by workmen employed directly by the company 
 at day wages. 2 This case has been the subject of 
 recent comment and limitation in that State, in a 
 decision which enforces, upon a thorough review of 
 the authorities, the non-liability of an employer for 
 the negligent acts of a servant of the contractor to 
 
 1 Steel v. South Eastern R. Co., 32 Eng. L. & Eq. 366. 
 
 3 Lowell v. Boston and Lowell R. R. Corp. 23 Pick. 24. See Stone v. Cod- 
 man, 15 Pick. 297. This case is followed in New Hampshire. Stone v. 
 Cheshire R. R. Corp. 19 N. H. 427. 
 
238 LIABILITY FOE TOUTS. 
 
 whom he has let the contract, and over whose ser- 
 vants he has no control. 1 
 
 To the general rule there are some exceptions 
 which require to be noted. It does not protect an 
 employer who has co-operated in the injurious act, 
 and become a joint participator in the wrong. In 
 such a case the relation of master and servant need 
 not exist, to render the company liable for the acts 
 of persons whom it has employed to do the tortious 
 act. Therefore it is liable when it authorizes the 
 act which produces the injury, or employs a person 
 to do an unlawful act, or one amounting to a nui- 
 sance, although he exercises an independent employ- 
 ment. 2 Thus, it has been held liable for damages to 
 an adjacent building by the blasting of solid rock, 
 by contractors in the construction of their railroad, 
 without any carelessness on their part, wheie in its 
 contract with them it provided for the removal of 
 solid rock by blasting. 8 The company will be re- 
 
 1 Hilliard v. Richardson, 3 Gray, 349, 352. In this case, it will be 
 seen that in remarking on Lowell v. Boston and Lowell R. R. Corp., Thomas, 
 J., delivering the opinion, lays stress on the point that in that ease, 
 " the barriers, the omission to replace which was the occasion of the acci- 
 dent, were put up and maintained by a servant of the corporation, and by 
 their express orders, and that servant had the care and supervision of them ;*' 
 and therefore the injury resulted from the negligence of the immediate ser- 
 vants of the company. But this circumstance does not seem to have been 
 relied on in the decision referred to. 
 
 * Ellis v. Sheffield Gas Consumers' Co., 22 Eng. L. & Eq. 198 ; Peachey 
 ■v. Rowland, 16 id. 442; S. C, 13 C. B., 182; Reedie v. London and TS. W. 
 R. Co., 4 Exch. 244, 254 ; Broome, Com. on Common Law, 706 ; Gourdier v. 
 Cormack, 2 E. D. Smith, N. Y., 254. 
 
 8 Carman v. Steubenville and Indiana R. R. Co., 4 Ohio State, 399. It 
 was considered in this case that the owner of real estate was liable where he 
 permitted a contractor to erect a nuisance on his premises. So in Mayor, 
 
LIABILITY EOE TOETS. 239 
 
 sponsible for injuries occasioned by unlawful obstruc- 
 tions created by a contractor under the du*ection of 
 the immediate servants or officers of the company, 
 and for its use and convenience ; * or, where the 
 work is done under its immediate superintendence, 
 although, as between the parties, the relation may 
 be that of employer and contractor. 2 But a clause 
 in the contract by which the contractor agrees to 
 conform the work to further directions of the em- 
 ployer, which merely reserves to the employer the 
 power to direct the results of the work, and not the 
 manner of its performance, does not create the rela- 
 tion of master and servant between the parties. 8 
 
 The general rule, as applied to individuals and cor- 
 porations in their ordinary affairs, may well admit of 
 another exception, so as not to exempt a corporation 
 from responsibility for the injuries done by parties in 
 its employ, and acting under the protection of its au- 
 thority, while performing acts which the State has 
 authorized the corporation to perform in the exercise 
 of its right of eminent domain. It has been invested 
 with the power to appropriate private property, and 
 
 &a., New York v. Bailey, 2 Denio, 445. But see 1 Parsons on Cont., 89, note 
 (b) ; Hilliard v. Richardson, 3 Gray, 362 ; Gourdier v. Cormack, 2 E. D. Smith, 
 N. Y., 264. 
 
 ' Phil, and Havre de Grace Steam Tow Boat Co. v. P. W and B. E. E. 
 Co. (U. S. Dist. Court for Maryland Dist.), 5 Am. Law Reg. (March, 18 67), 
 
 p. 280. 
 
 1 Carman v. Steubenville and Indiana RE. Co., 4 Ohio State, 414, 415 ; 
 
 1 Parsons Cont. 89, note (b) ; Camp v Wardens of Church of St. Louis, 7 La. 
 An. 321. 
 
 s Pack v. Mayor, <fec, New York, 4 Selden, 222 ; Gourdier v. Cormack, 
 
 2 E. D. Smith, N. Y., 254. 
 
240 LIABILITY FOE TOKTS. 
 
 interfere with private interests in proceedings which 
 would be actionable, and might be restrained by 
 injunction, if done without the sanction of public 
 authority. While exercising this power, so capable 
 of dangerous abuse, it should be held to its just and 
 faithful execution, and not permitted to divest itself 
 of responsibility by delegating it to employees who 
 may be irresponsible. It will thus be induced to 
 exercise more watchful care in the choice of superin- 
 tendents, contractors, and engineers, by whose care- 
 lessness and unskillfulness great damage may be 
 done to parties on the line of the road. 1 The liabil- 
 
 1 See Hilliard v. Richardson, 3 Gray, 362, 364, 365, 366; Clark v. 
 Common Council of the City of Washington, 12 Wheaton, 40. On this 
 ground the following cases may be sustained, the decision of which would 
 otherwise be questionable : Bailey v. Mayor, &e., New York, 2 Denio, 
 433 ; Semple v. London, &c, R. Co., 1 Eng. RaiL Cas. 480 ; Lowell v. Boston 
 and Lowell R. R. Corp., 23 Pick. 24 ; Stone v. Cheshire R. R. Corp., 19 If. 
 H., 427 ; Sabin v. Vt. Central R. R. Co., 25 id. 371 ; Vt. Central R. R. Co. v. 
 Baxter, 22 id. 372. Redfield, J. : " The power conferred upon railroad cor- 
 porations to take the land and other materials adjoining the line of the road 
 for the purpose of constructing the road, is one in derogation of the ordinary 
 rights of landowners, and one which could only be conferred by the legis- 
 lature by virtue of the right of eminent domain, and because it is necessary 
 to the reasonable exercise of sovereignty. And we think it is one which is 
 as necessary to exist in and be exercised by all the contractors on the road, 
 as by the corporation. Indeed, it is only for that purpose that it is impor- 
 tant. And whether the corporation construct their road themselves, or by 
 contract with others, is unimportant. This is a power which must go with 
 the contract, which is indispensable to the building of the road, which must 
 be understood to go with the contract, which is in fact never exercised by 
 the board of directors of the company, but always by the builders, under 
 the supervision of the engineers, and which must of course be exercised only 
 within reasonable limits, and in a proper manner. The very words of the 
 statute show by whom it was Ixpected this power would be exercised, — ' by 
 engineers, agents, or workmen.' 
 
 " This, then, being a power which was conferred by charter upon the 
 company, and which of necessity pertains to the contractors, as a necessarily 
 delegated office from the company to the contractor, and which they must 
 
LIABILITY FOE TOBTS. 241 
 
 lity of the company under such circumstances, is sus- 
 tained by authority. Where a company incorporated 
 for the improvement of river navigation was author- 
 ized by its charter to enter on certain premises and 
 take therefrom material for the construction of its 
 public works by making compensation, certain parties 
 who had contracted with it to do the work and fur- 
 nish all the materials, having entered on the land and 
 taken timber for the construction of the works in 
 question, under authority of the charter, the com- 
 pany was held liable for the materials so taken, 
 although the contractors had agreed to furnish them. 
 The work was considered to be done by the com- 
 pany under the protection of the charter, and also 
 under the liabilities which it imposed. 1 This lia- 
 bility of the company for the injury done by parties 
 acting under contract with it, and exercising an inde- 
 pendent employment, may be limited to cases where 
 the acts complained of were within the authority 
 conferred by its charter, and not extended to tortious 
 acts in violation thereof. 2 Nor should it embrace the 
 usual operations of the company, where it is not, as 
 in the construction of its road, interfering with pri- 
 
 expect Mm to exercise, it is the same as if in express terms it were stipulated, 
 that he may exercise it. For this purpose, then, the contractor is the agent 
 of the company. And as the proprietors of the land cannot resist the con- 
 tractor, because he is clothed with the authority of the company, it would 
 be hard, if they could be compelled to look to any and every contractor to 
 whom the company might see fit to turn them over. Any stipulation between 
 the contractor and the company is of no importance to the landowners. It is 
 merely a private arrangement between the company and contractor as to 
 the mode of coming at the price of the work." 
 
 1 Lesher v. Wabash Nav. Co., 14 IlL, 85. 
 
 * Id. 
 
 17 
 
242 LIABILITY FOR TOETS. 
 
 vate interests. For instance, there is no more reason 
 for subjecting the company to liability for the torts 
 of a person who has contracted to build an engine 
 for it in his own foundry and shops, than for sub- 
 jecting a private individual to liability under like 
 circumstances. 
 
 "What makes the Wrong-doer a servant of the 
 company. — The question whether one railroad 
 company or some other company or individual, is 
 responsible for the torts of a person, may be pre- 
 sented where the wrong-doer is not exercising an 
 independent employment under a special contract 
 with the company, or employed by a party holding 
 such special contract, but is clearly the servant of 
 the company or of some other company or indivi- 
 dual, and the only question is, whose servant he is. 
 As a general rule, the person committing the injury 
 will be considered the servant of the company 
 which employs and pays him, exercises the right to 
 discharge him, and whose orders he is bound to 
 obey. 1 Thus, where the plaintiff was thrown out of 
 his wagon, in a collision with a railroad car belong- 
 ing to the New York and New Haven Railroad 
 Company, but drawn by horses owned by the New 
 York and Harlem Railroad Company, and driven 
 by a driver in its employ, the latter company was 
 responsible for the injury occasioned by the driver's 
 negligence. 2 
 
 1 Parsons' Cont., pp. 90-92 ; Story on Agency, § 453, a, b, c ; Broome, 
 Com. on Common Law, pp. §<j§-*!05. 
 
 * Weyant v. N. Y. and Harlem R. R. Co., 3 Duer, 360. 
 
LIABILITY FOE TORTS. 243 
 
 The company may, however, make itself liable 
 by contract for the tortious acts of the servants of 
 another company. Thus, where the owners of pas- 
 senger cars agreed to carry a passenger, although the 
 motive-power was furnished by the State, between 
 • which and the company there was a contract for 
 the running of the cars, and was under the control 
 of the State's agents, through whose negligence the 
 passenger was injured, the owners of the passenger 
 cars were held responsible. The servants of the 
 State were, as between the passenger and the own- 
 ers of the cars, fro hac vice the servants of such 
 owners. 1 
 
 Two companies, or a company and some indivi- 
 dual, may render themselves both liable for the 
 torts of a servant, where, although he may be em- 
 ployed by one, both are partners in the profits of 
 the business in which the injury is inflicted, or are 
 otherwise joint participators in the wrong, so that 
 the wrong-doer is, in law, the servant of both. 2 
 Thus, a company organized under a charter from 
 the State of Pennsylvania, is responsible for the 
 infraction of a patent right respecting cars which 
 were run on its track, although the entire capital 
 stock of the company was held by a connecting 
 railroad company incorporated in Maryland, which 
 operated the road by its agents, — it appearing that 
 the Pennsylvania company owned the motive power, 
 and contributed to the expense of operating the rail- 
 
 1 Peters v. Rylands, 20 Penn. State, 467 ; M'Elroy v. Nashua and Lowell 
 E. R. Corp., 4 Cush. 400. 
 
 2 Peters v. Ryland, 20 Penn. State, 49Y. 
 
244 LIABILITY FOR TOETS. 
 
 road, of fitting and repairing the cars, and paying 
 the officers and agents. 1 
 
 The company cannot divest itself of responsibility 
 for the torts of persons operating its road, by trans- 
 ferring its corporate powers to other parties, or by 
 leasing its road to them, in the absence of special 
 statute authority and exemption. It cannot absolve 
 itself from its obligations without the consent of the 
 legislature. 2 The lessees may, however, also be re- 
 sponsible for the injury. 8 
 
 Breach op Public Duty. — The company is re- 
 sponsible to a party for the breach of a general 
 public duty, whereby special damage accrues to 
 him, and a privity of contract between him and 
 the company is not necessary to entitle him to an 
 action for the injury. 4 On this ground a party is 
 entitled to damages in consequence of a breach of a 
 general public duty to fence its road, as will be seen 
 elsewhere. 
 
 The obligation of the company to keep its road 
 in a safe and proper condition for use, is not im- 
 
 1 York and Maryland R. R. Co. v. Winans, IT How. 30. 
 
 a Nelson v. Vt. and Canada R. R. Co., 26 Vt. Ill ; York and Maryland 
 R. R. Co. v. Winans, IT Ho-w. 30. The company was held not liable for the 
 torts of its lessees in Thompson v. N. 0. and Carrollton R. R. Co., 10 La. 
 An. 403 ; Hart v. Same, 4 id. 261. 
 
 3 Clement v. Canfield (Supreme Ct. of Vt. Nov. T, 1855), 19 Law Rep. 
 (Dee. 1856), p. 460. 
 
 4 Marshall •„. York, Newcastle, and Berwick R. Co., 11 C. B. 655 ; 73 E. 
 C. L. ; Gerhard v. Bates, 2 El. & Bl. 476, 20 Eng. L. and Eq. 129 ; Collett 
 v. London and N. Western R. R. Co., 6 Eng. L. & Eq. 305 ; Broome, Com. on 
 Common Law, 661, 679 ; Davis v. Lamoille County Plank Road Co., 27 Vt. 
 (1 Williams), 602. 
 
LIABILITY FOB TORTS. 245 
 
 posed for the sole benefit of its servants and passen- 
 gers paying fare. It is imposed as a public duty, 
 independent of contract, and is co-extensive with the 
 lawful use of the road. 1 Thus, where one company, 
 by agreement or otherwise, has a right to run its 
 trains over the road of another company, its ser- 
 vants on its trains are entitled to damages from the 
 company owning the road for an injury occasioned 
 by the improper and negligent management of the 
 switch, which it was the duty of the latter to keep 
 in the proper place. 2 It has, however, been held in 
 New Hampshire, that the permission given by one 
 railroad company to another to use its track does not 
 involve a duty to keep it safe for use ; or if there 
 was a contract between the companies to that effect, 
 a passenger on the trains of the company using the 
 privilege would have no right of action against the 
 company owning the road for injuries resulting from 
 its being in an improper condition, there being no 
 privity of contract between him and such company. 8 
 If the party is unlawfully on the trains, he has 
 no claim against the company, except for its willful 
 injuries.* 
 
 Liability for Nuisances. — Under what circum- 
 
 1 Great Northern EaiL Co. v. Harrison, 26 Eng. L. and Eq. 448 ; Phila. 
 and Reading R. R. Co. v. Derby, 14 How. 485. 
 
 " Sawyer v. Rutland and BurKngton R. R. Co., 27 Vt." (1 Williams) 370 ; 
 Cumberland Valley R. R. Co. v. Hughes, 11 Penn. State, 141 ; Nolton v. 
 Western R. R. Corp., 10 How. Pr. 97. See M'Elroy v. Nashua and Lowell 
 R. R. Co., 4 Cush. 400. 
 
 s Murch -v. Concord R. R. Corp., 9 Foster, 9. See Schopman a. Boston 
 and Worcester R. R. Co., 9 Cush. 24. 
 
 ' Robertson v. N. Y. and Erie R. R. Co., 22 Barb. 91. 
 
246 LIABILITY FOR TORTS. 
 
 stances a railroad company is liable to an action for 
 a nuisance, at the suit of a private individual, is a 
 matter of some difficulty. On grounds of public 
 policy and general convenience, it is allowed to do 
 certain acts under legislative authority, which, if 
 done by a private individual, without such author- 
 ity, would be actionable. Thus, where it crosses a 
 highway, the shutting of gates may be a temporary 
 obstruction to an individual, which would not entitle 
 him to an action. 1 The general rule is, that when- 
 ever a public duty is imposed on the company, 
 by statute or otherwise, a party suffering special 
 damage from a breach of the same, is entitled to an 
 action against it for such special damage. 2 
 
 Under this rule the company is liable, as else- 
 where shown, for injuries resulting from its neglect 
 to fence its track, when required by statute. But 
 special damage to the individual must be combined 
 with the breach of public duty, so as to entitle him 
 to an action. If the wrong suffered by him is only 
 the same as that suffered by the public at large, he 
 has no personal right of action ; and this rule 
 applies, although from the circumstances in which he 
 happens to be placed he may suffer more frequently 
 and more severely than others. It is only when he 
 suffers some special damage, differing in kind from 
 that which is common to others, that a personal 
 
 1 Hatch v. Vt. Central R. R. Co., 25 Vt. 61 ; Caledonian R. Co. v. 
 Ogilby, 29 Eng. L. and Eq. 22. 
 
 * See Catchpole v. R. Co., 1 Ellis & Bl. 110; 72 E. C L. The recent 
 English cases on nuisances are well collated and commented upon in Broome's 
 Com. on Common Law, pp. 96-101, 661-616. 
 
LIABILITY FOR TOETS. 247 
 
 remedy accrues to him. This rule applies equally 
 where equitable relief or legal remedies are sought 
 by a party. 1 
 
 A railroad is not per se a nuisance when con- 
 structed over or on a highway or street, where other 
 ordinary modes of conveyance are not excluded by 
 it. Nor is it a nuisance where it is constructed, 
 under authority of the State, on navigable waters 
 below high-water mark. 2 Equity will interfere to 
 restrain a company which is about to construct one 
 in such a place and manner as clearly to create a 
 nuisance, whereby great and irreparable damage will 
 be suffered. But it will not interfere to prevent an 
 injury which will be only temporary, and is capable 
 of compensation in damages, or where the right is 
 doubtful. 8 
 
 An action on the case has been sustained against 
 a company by an incorporated religious society for 
 a nuisance in running its cars and engines, ringing 
 bells, blowing off steam, and making other noises, 
 in the neigborhood of a church on the Sabbath day 
 during public worship, which so annoyed and 
 molested the congregation as greatly to depreciate 
 the value of the building, and render it unfit for a 
 
 ' Brainard v. Connecticut River E. R. Co., 7 Cush. 506 ; Smith v. 
 Boston, 7 id. 254 ; Proprietors of Locks and Canals, <fec, v. Nashua and 
 Lowell E. R. Corp., 10 id. 390 ; Hancock v. York, Newcastle, and Berwick 
 R. Co., 10 C. B. 348 ; 70 E. C. L. 
 
 2 Ante, ch. viii., pp. 175-178. 
 
 3 Mohawk Bridge Co. v. Utica and Schenectady R. R. Co., 6 Paige, 554 ; 
 Hamilton v. N. Y. and Harlem R. R. Co., 9 id. 322 ; Hodgkinson v. Long 
 Island R. R. Co., 4 Edw. Ch. 411 ; Hentz v. Long Island R. R. Co., 13 Barb. 
 646 ; Bell v. Ohio and Penn. R. R. Co., 25 Penn. State, 161. 
 
248 LIABILITY FOE TOETS. 
 
 place of public "worship. The company was con- 
 sidered liable, on the ground that the acts suffered 
 were contrary to the statute for the observance of 
 the Sabbath, and the plaintiff had suffered special 
 damage from its violation. 1 In a similar case, how- 
 ever, not referred to in the one just given, decided 
 by other judges of the same court a few months 
 earlier, the injuries complained of were regarded as 
 too remote to be the subject of an action. It was 
 noted that it did r ot appear in the declaration, but 
 that the acts were within the exceptions of the 
 statute and therefore legal ; and on the question 
 whether if prohibited by it an action lay, an opinion 
 was not necessary. 2 
 
 Infeaction of Patent Right. — A railroad com- 
 pany is liable for the infraction of a patent right. 3 
 
 Injubies resulting from the enforcement OF THE 
 Regulations of the Company foe the conduct of 
 Passengees and Peesons coming upon its Peemises. 
 — The company has the power to make reasonable 
 and proper regulations for the conduct of all persons 
 who come upon its premises, as passengers or other- 
 wise, or who travel in its cars. It may authorize 
 its agents and servants to remove from its stations, 
 
 1 First Baptist Church of Schenectady v. Schenectady and Troy R. K. 
 Co., 5 Barb. 80. 
 
 ' First Baptist Church of Schenectady v. Utica and Schenectady K. R. 
 Co., 6 Barb. 313 ; see Hatch v. Vt. Central R. R. Co., 25 Vt. 62; Burton v. 
 Phil., Wil., and Bait. R. R. Co., 4 Harring. 252 ; State v. Tupper, Dudley 
 (S. C), 135. 
 
 5 York and Maryland R. R. Co. v. Winans, IT How. 80. 
 
LIABILITY FOR TOUTS. 249 
 
 cars, or other premises, persons who violate such 
 regulations, using n) unnecessary violence ; and its 
 servants for enforcing them in a proper manner will 
 not render themselves or the company liable for 
 a tort. Thus, it may remove an innkeeper from 
 station who, in violation of its rules, persists in en- 
 tering it to solicit patronage for his house, to the 
 annoyance of passengers, and the interruption of its 
 business ; and where, having repeated the violation 
 frequently, he enters the station again apparently 
 for the same purpose, and not declaring a contrary 
 intention, the proper officer of the company, having 
 reasonable ground to suppose that he has entered it 
 again for the same object, may on his refusal to 
 leave remove him, and use the necessary force for 
 the purpose, although in the particular instance he 
 has in fact entered with the hona-fide intention of 
 taking the cars as a passenger, and has without the 
 knowledge of the agents of the corporation obtained 
 a passenger's ticket, which he does not exhibit. 1 
 
 * Commonwealth v. Power, 7 Met. 596. This was a criminal prosecu- 
 tion instituted against Power and several of his assistants acting under his 
 orders, charging an assault and battery upon the complainant, Hall. The 
 complainant was an innkeeper, who had annoyed passengers by his solicita- 
 tions, and refused to comply with an order of Power, the master of the 
 station, to discontinue the practice and not to go upon the platform, and 
 who had after his violation of the rule been forbidden by Power to enter 
 the station at all. Nevertheless he afterwards entered it, with the bona-jide 
 intention of taking the cars, and with a ticket which he had procured with- 
 out the knowledge of any agent of the corporation, and on being forbidden 
 to go upon the platform and ordered to leave the station, still pressed forward 
 to the platform without showing his ticket or declaring that he was going 
 to take the cars as a passenger. He was then forcibly put out of the station 
 by the defendants, with no more violence than was necessary to accomplish 
 the object. Shaw, C. J. : " The court are of opinion, that the railroad cor- 
 poration, both as the owners and proprietors of the houses and buildings 
 
250 LIABILITY FOR TORTS. 
 
 But to justify his forcible removal, he must in fact, 
 
 connected with the railroad, and as carriers of passengers, have authority to 
 make reasonable and suitable regulations in regard to passengers intending 
 to pass and repass on the road in the passenger cars, and in regard to all" 
 other persons making use of such houses and buildings., This authority is 
 incident to such ownership of the real estate, and to their employment as 
 passenger carriers; and all such regulations will be deemed reasonable, 
 which are suitable to enable them to perform the duties they undertake, and 
 to secure their own just rights in such employment ; and also such as are 
 necessary and proper to insure the safety and promote the comfort of pas- 
 sengers. The reasonableness of such regulations must in some measure be 
 judged of with reference to the particular depot at which they are adopted. 
 Regulations may be proper and necessary at one of the termini of the road, 
 where there is usually a great throng of passengers and other persons con- 
 nected with the business of the road, which would not be required at a 
 way station, where few persons enter or leave the cars, and where they stop 
 but a few moments. 
 
 " And we are also of opinion, that the regulations thus to be made and 
 enforced are not necessary to be made in the form of by-laws, to be carried 
 into effect by penalties and prosecutions. Such by-laws are rather the reg- 
 ulations which a corporation have power to make in respect to the govern- 
 ment of their own members, and of their corporate officers, or of municipal 
 corporations, that exercise, to a limited extent, the powers of government. 
 But the regulations in question are such as an individual, who should 
 happen to be the sole owner of the depots and buildings, and of the railroad 
 cars, would have power to make in virtue of his ownership of the estate, 
 and of his employment as a carrier of passengers. 
 
 ******* 
 
 We are also of opinion, that the power which the company thus have to 
 regulate their several depots, they may delegate to suitable officers. Indeed, 
 it is the only mode in which a corporation can exercise their powers. And 
 where they have appointed a superintendent with authority by himself and 
 his assistants, to have charge of the depot, and manage its concerns, it is 
 incident to his authority to exclude or direct the exclusion of persons who 
 persist in violating the reasonable regulations prescribed, and thereby inter- 
 rupt the officers and servants of the company in the discharge of their 
 respective duties, or annoy passengers. If it be insisted, that by opening 
 the doors of their depots, the company give an implied license to any and 
 all persons to enter, it may be answered that by thus opening their doors, 
 they do, prima facie, give an implied license to all persons to enter, and no 
 person is a trespasser by merely entering therein ; but all such licenses 
 are in their nature revocable; and if actually revoked, and due notice 
 given to an individual or class of individuals, and they still persist in enter- 
 ing, it is without a license, and the owner has a right to exclude them by 
 
LIABILITY FOE TOETS. 251 
 
 and not merely in the judgment of the proper 
 
 force, if necessary, using no more force than is necessary for that purpose. 
 Weaver v. Bush, 8 T. E. T8. Without such & power, the business could not 
 be carried on, because the crowd of persons entering without intending to 
 take passage, might be so great as to exclude passengers. 
 
 In regard to the fact that Hall had a ticket at the time, and intended 
 bona fide to go in the cars to Eichmond, it appears to us that a fact within 
 his own private knowledge, not communicated to the superintendent, when 
 it was in his power to communicate it, cannot place the superintendent in 
 the wrong in a case where he would be otherwise justified. If Hall had 
 repeatedly violated a reasonable regulation in going upon the platform 
 when expressly prohibited ; and if the superintendent had reasonable ground 
 to believe that he was repeating such violation, and he gave no notice that 
 he then came there for another purpose, when it was in his power to do so, 
 the superintendent and his assistants acting on reasonable grounds of belief, 
 must stand on the same grounds of justification in this respect as if Hall had 
 no such purpose. 
 
 We are, therefore, of opinion, that upon the evidence detailed in the 
 judge's report, the jury should be instructed in a manner somewhat as fol- 
 lows : That if Power had been placed in charge of the depot by the corpo- 
 ration as superintendent, he had all the authority of the corporation, both aa 
 owners and occupiers of real estate, and also as carriers of passengers, inci- 
 dent to the duty of control and management : That this power and authority 
 of the corporation extended to the reasonable regulation of the conduct of 
 all persons. using the railroad, or having occasion to resort to the depots for 
 any purpose : That this power was properly to be executed by a superin- 
 tendent, adapting his rules and regulations to the circumstances of the par- 
 ticular depot under his charge, and that it was not necessary that such 
 regulations should be prescribed by by-laws of the corporation : That the 
 opening of depots and platforms for the sale of tickets, for the assembling of 
 persons going to take passage, or landing from the cars, amounts in law to 
 a license to all persons, prima facie, to enter the depot, and that such entry 
 is not a trespass ; but that it is a license conditional, subject to reasonable 
 and useful regulations ; and on non-compliance with such regulations, the 
 license is revocable, and may be revoked either as to an individual, or as to 
 a class of individuals, by actual or constructive notice to that effect : That if 
 the platform, as a part of the depot, is appropriated to and connected with 
 the entrance of passengers into the cars, and the exit of passengers from the 
 cars, and for the accommodation of their baggage, and if the soliciting of 
 passengers to take lodgings in particular public houses, by the keepers of 
 them, or their servants, is a purpose not directly connected with the car- 
 riage of passengers by the railroad, on their entrance into, or exit from cars ; 
 that if, when urged with earnestness and importunity, it is an annoyance of 
 
252 LIABILITY FOR TOETS. 
 
 officer of the company, have violated its rules. 1 The 
 company may also without incurring liability for a 
 
 passengers, and interruption to their proper business of taking or leaving 
 their seats in the cars, and procuring or directing the disposition of their 
 baggage ; or if the presence of such persons, for such a purpose, is a hin- 
 drance or interruption to the officers and servants of the corporation in the 
 performance of their respective and proper duties to the corporation, as pas- 
 senger carriers; then the prohibition of such persons from entering upon 
 the platform, is a reasonable and proper regulation, and a person who, after 
 actual or constructive notice of such regulation, violates, or attempts to vio- 
 late it, thereby loses his license to enter the depot ; that such license as to 
 him may be revoked; and if, upon notice to quit the depot, he refuses 
 so to do, he may be removed therefrom by the superintendent, and the per- 
 sons employed by him ; and if they use no more force than is necessary for 
 that purpose, such use of force is not an assault and battery, but is justifia- 
 ble : That as to the circumstances of the present case, if the superintendent 
 had issued a circular, giving notice to all innkeepers and landlords, that he 
 had prohibited them from entering the depot to solicit persons to go to their 
 respective houses as guests, and if this notice came to Hall, and he after- 
 wards, and after special notice to him personally, had attempted to violate 
 this prohibition, and solicit passengers ; and if upon the particular occasion 
 he gave no notice of coming for any other purpose ; and if the defendant, 
 Power, met him on his way to the platform, told him he must not go there, 
 laid his hands on him, and ordered him to leave the depot, without any 
 inquiry as to the purposes of Hall, and Hall made no reply, but pressed for- 
 ward and attempted to reach the platform, in spite of the efforts of Power ; 
 this was strong prima facie evidence that he was going there with intent to 
 solicit passengers, in violation of the notice and revocation of license ; and 
 that if he gave no notice of his intention to enter the car as a passenger, and 
 of his right to do so, and if Power believed that his intention was to violate 
 a subsisting reasonable regulation, — then he and his assistants were justified 
 in forcibly removing him from the depot: That if Hall gave no notice of his 
 having a ticket, of his intention and purpose to enter the cars as a passenger, 
 and of his right to do so, and that Power had no notice of it, then Hall could 
 not justify his conduct, and make Power a wrong-doer, by proving the pos- 
 session of such a ticket, or of his intent to go in the cars to Richmond as a 
 passenger ; and that he was to be considered as standing on the same footing 
 as if he had not possessed such ticket." In Barker v. Midland E. Co. 18 
 C. B. 46 ; 36 Eng. L. <fe Eq., 258, the company was held not liable for refus- 
 ing to admit a carrier of passengers and goods within the precincts of its 
 station, although it is in the habit of admitting the public generally. 
 1 Hall v. Power, 12 Met. 482. 
 
LIABILITY FOE TOETS. 253 
 
 tort, remove from its cars and premises a passenger 
 who persists in violating its reasonable regulations, 
 using no more force than is necessary. 1 A rule 
 requiring passengers to give up their tickets in the 
 cars before completing their journey, and to receive 
 the checks of the conductor in return, is a reason- 
 able regulation, and a passenger refusing to comply 
 with it may be required to pay his fare in cash, and 
 refusing to do either may be expelled from the 
 cars. 2 It is competent for the company to make 
 a rule requiring passengers who do not purchase 
 their tickets before entering the cars, to pay a higher 
 fare than those who purchased their tickets at the 
 office ; and a passenger who does not purchase his 
 ticket before entering the cars, may be required to 
 pay the higher rate of fare, and on his refusal may 
 be expelled from the cars by force. 8 
 
 It is competent for the company to make a regu- 
 lation requiring a passenger to show his ticket at 
 proper times, and to remove him from the cars 
 for refusing to show the same. 4 It may refuse to 
 allow the purchaser of a through ticket, who leaves 
 the train he starts in at a way station, to take 
 another subsequent train, and complete his journey 
 
 * Merrihew v. Milwaukie and Mississippi E. E. Co. (Circuit Ct. of Wis- 
 consin, May Term, 1854), 5 Am. Law Reg. (April, 1857), p. 364. 
 
 * Northern E. E. Co. v. Page, 22 Barb. 130. 
 
 ■ Billiard v. Goold, 33 New Hamp. (Supreme Ct., July T., 1856), 19 Law 
 Eep. (Oct. 1856), p. 343; Crocker v. New London, 'Willimantic, and Palmer 
 E. R. Co. 24 Conn. 249. The plaintiff was held bound to pay the additional 
 fare notwithstanding the ticket-office was closed at the time, and within a. 
 reasonable time before the train started. 
 
 * State v. Overton, 4 Zabris. 441 ; Willetts v. Buffalo and EochesterE. E. 
 Co., 14 Barb. 685. 
 
254 LIABILITY FOR TOUTS. 
 
 by virtue of the through ticket, or a conductor's 
 check given to him in lieu thereof ; and if on resum- 
 ing his journey he refuses to pay the fare over again 
 from the way station where he takes the train to 
 his destination, he may be expelled from the cars 
 by the servants of the company having charge of 
 the same. 1 The company will not be responsible 
 for the unauthorized willful injury inflicted by its 
 servant in expelling a passenger from the cars. 2 The 
 liability of the company for injuries to passengers 
 will be more fully considered in a subsequent 
 chapter. 
 
 Damages. — Such damages are to be assessed for 
 the torts of a railroad company as will compensate the 
 injury. The same general principles are to determ- 
 ine the assessment of them as in actions for like 
 injuries against other corporations or private indi- 
 viduals. These will be found discussed in treatises 
 on the subject. 8 
 
 The plaintiffs business, and the necessity of his 
 personal attention to it, have been held proper mat- 
 ters to be considered in the computation in case of 
 a personal injury. 4 Bodily pain and suffering, as 
 well as loss of time and money, are proper matters 
 for the consideration of the jury in assessing damages 
 
 1 Cheney v. Boston and Maine R. R. Co., 11 Met. 121 ; State v. Overton, 
 4 Zabris. 436. 
 
 * Crocker v. New London, Willimantic, and Palmer R. R. Co., 24 Conn. 
 249. 
 
 s 2 Greenl. Ev., tit. Damages; 2 Parsons on Cont. 441-462; Sedgwick 
 on Damages, ch. iii, xviii., xxii. 
 
 * Lincoln v. Saratoga and Schenectady R E. Co., 23 Wend. 425. 
 
LIABILITY FOB TOETS. 255 
 
 for a physical injury to a party. 1 The husband in 
 an action for injuries to his wife, cannot recover for 
 pain of body or mental suffering endured by her. 2 
 
 Although loss of mere profits is in general too 
 uncertain and contingent to be allowed as damages, 
 a carrier who was injured in a collision with the 
 cars through the negligence of the company, has 
 been held entitled to compensation for the loss of 
 the trip in which he was engaged, and for the use 
 of the wagon until with reasonable diligence it 
 could be repaired. 8 
 
 1 Morse v. Auburn and Syracuse R. R. Co., 10 Barb. 621 ; as to mental 
 suffering, see Blake v. Midland R. R. Co., 10 Eng. L. & Eq. 444; Bassett v. 
 N. and W. R. R. Co. (Superior Court of Conn.), 19 Law Rep. (Feb. 1857), 
 p. 554. 
 
 5 Worley u. C. H. and D. R. R. Co., 1 Handy (Superior Court of Cincin- 
 nati), 481. 
 
 3 Shelbyrille Lateral Branch R. R. Co. v. Lewark, 4 Indiana, 471. 
 
256 PERSONAL INJURIES RESULTING IN DEATH. 
 
 CHAPTER XL 
 
 PERSONAL INJURIES RESULTING IN DEATH. 
 
 Not Actionable at Common Law. — It is an 
 ancient principle of the common law, that " in a civil 
 court the death of a human being cannot be com- 
 plained of as an injury," whether it results from the 
 felonious assault or the carelessness of the party- 
 causing it. Therefore, in the absence of a special 
 statute provision, no action can be sustained against 
 a railroad company for the loss of the comfort, assist- 
 ance, and support of a husband, father, or other rela- 
 tive, in consequence of his death being caused by the 
 default of its agents or servants. 1 The same rule 
 prevails under the Code of Louisiana, although it 
 provides that (article 2294) " every act whatever of 
 man that causes damage to another, obliges him by 
 whose fault it happened to repair it." The Court of 
 Cassation, in France, has, however, interpreted the 
 same provision (article 1382) in the Code Napoleon 
 so as to allow a recovery of damages in such cases. 2 
 
 ' Baker v. Bolton, 1 Camp. 493 ; Higgins v. Butcher, Yelv. 89 ; Carey 
 v. Berkshire R. R. Co., 1 Cush. 475 ; Lucas v. N. Y. Central R. R. Co., 21 
 Barb. 245 ; Worley v. Cincinnati, Hamilton and Dayton R. R. Co., 1 Handy 
 (Superior Coxirt of Cincinnati), 481 ; Campbell v. Rogers, 2 id. 110; 4 Am. 
 Law Reg. 474; 19 Law Rep. (Oct. 1856), 329; Eden v. Lexington and Frank- 
 fort R. R. Co., 14 B. Monroe, 204 ; but recovery is admitted for medical 
 attendance and funeral expenses, — id. ; Park v. Mayor; &c, New York, 3 
 Comst. 489. 
 
 * Hubgh v. N. 0. and C. R. R. Co., 6 La. An. 495, 498. 
 
PERSONAL INJURIES RESULTING IN DEATH. 257 
 
 It is a dictate of justice that parties immediately 
 interested in the life of a person wrongfully killed 
 by another, should be compensated by him for the 
 fatal injury he has inflicted. Statutes have there- 
 fore been enacted in England, and in some American 
 States, designed to compensate the persons having 
 the greatest pecuniary interest in the life of the 
 deceased party, as the widow, children, heirs, or next 
 of kin, for their pecuniary loss, which they have 
 thus suffered from the wrongful act of another ; the 
 damages being usually limited to a certain amount. 
 Such statutes, as we have already seen, when applied 
 to companies previously incorporated, are constitu- 
 tional, and do not impair the obligation of the con- 
 tract implied in the charter. 1 9 The remedy given 
 may be an action against the wrong-doer for damages 
 by the administrator or executor of the deceased, for 
 
 1 Ante, ch. iii. p. 42— 44. The following is the provision ofthe English "Act 
 for compensating the families of persons killed by accidents." (26th August, 
 1846, 9 & 10 Victoria, c. 93.) " That whensoever the death of a person shall 
 be caused by wrongful act, neglect, or default, and the act, neglect, or default 
 is such as would (if death had not ensued) have entitled the party injured to 
 maintain an action and recover damages in respect thereof, then and in every 
 such case the person who would have been liable if death had not ensued, 
 shall be liable to an action for damages, notwithstanding the death of the 
 person injured, and although the death shall have been caused under such 
 circumstances as amount in law to felony. 
 
 " That every such action shall be for the benefit of the wife, husband, 
 parent, and child of the person whose death shall have been so caused, and 
 shall be brought by and in the name of the executor or administrator of the 
 person deceased ; and in every such action the jury may give such damages 
 as they may think proportioned to the injury resulting from such death to 
 the parties respectively for whom and for whose benefit such action shall be 
 brought ; and the amount so recovered, after deducting the costs not recov- 
 ered from the defendant, shall be divided among the before-mentioned par- 
 ties, in such shares as the jury by their verdict shall find and direct." 
 
 18 
 
258 PERSONAL INJURIES RESULTING IN DEATH. 
 
 the benefit of the interested relatives. This is the 
 remedy provided in England, and by the statutes of 
 New York, Pennsylvania, Ohio, and Indiana. 1 The 
 provision of the statute of Ohio enacted 25th March, 
 1851, is the same as that of New York, with merely 
 verbal variations ; except that in the first section the 
 words "murder in the first or second degree, or 
 manslaughter," are substituted for " felony," and the 
 provision for a' criminal process is omitted. 2 The 
 injury, in order to be actionable under the statute of 
 Ohio, must have been inflicted within the State. 8 
 A husband cannot under it recover for the killing of 
 
 1 See Penn, and Indianapolis R. R. Co. v. Bradshaw, 6 Ind. 146 ; Madison 
 and Indianapolis R. R. Co. v. Bacon, id. 205. The statute of If ew York, 
 enacted 13th December, 1841 fas amended "7th April, 1849, provides, besides 
 a criminal process against the person immediately causing the death, — 
 
 " § 1. Whenever the death of a person shall be caused by wrongful act, 
 neglect, or default, and the act, neglect or default, is such as would (if death 
 had not ensued) have entitled the party injured to maintain an action and 
 recover damages, in respect thereof, then and in every such case, the person 
 who, or the corporation which would have been liable, if death had not en- 
 sued, shall be liable to an action for damages, notwithstanding the death of 
 the person and although the death shall have been caused under such cir- 
 cumstances as amount in law to felony. 
 
 " § 2. Every such action shall be brought by and in the names of the per- 
 sonal representatives of such deceased person, and the amount recovered in 
 every such action shall be for the exclusive benefit of the widow and next 
 of kin of such deceased person, and shall be distributed to such widow and 
 next of kin in the proportion provided by law in relation to the distribution 
 of personal property left by persons dying intestate ; and in every such 
 action the jury may give such damages as they shall deem a fair and just 
 compensation, not exceeding five thousand dollars, with reference to the pe- 
 cuniary injuries resulting from such death to the wife and next of kin of such 
 deceased person, provided that every such action Bhall be commenced within 
 two years after the death of such person." Laws of New York (1847, 2d 
 session) ch. 450, (1849) ch. 256. 
 
 2 Swan's Stat, of Ohio (1854), pp. 101, 708. 
 
 3 Campbells. Rogers, 2 Handy (Superior Court of Cincinnati), 110; 4 
 Am. Law Reg. 141 ; 19 Law Rep. (Oct. 1856), p. 329. 
 
PERSONAL INJURIES RESULTING IN DEATH. 259 
 
 his wife, or for the loss of her comfort, services, and 
 society ; but may recover for the expenditures actually 
 made in consequence of the fatal injury. 1 The act 
 of New York limits its remedies to the wife and next 
 of kin, and the husband has no right of action under 
 it for the killing of his wife. 2 
 
 In Massachusetts and New Hampshire the rem- 
 edy given to the parties pecuniarily interested in 
 the life of a person unlawfully killed, is by a fine 
 recoverable by indictment prosecuted by the State 
 against the wrong-doer for the benefit of the parties 
 designated by the statute ; and this remedy only 
 being provided, an action for damages cannot be 
 sustained. The act of Massachusetts confines its 
 remedy to fatal injuries, sufi%ed by a passenger, 
 from the defaults of certain classes of common 
 carriers ; and that of New Hampshire, to those 
 arising from the defaults of the proprietors of 
 
 1 Worley v. C. H. and D. R. R. Co., 1 Handy, 481. The statute of New 
 York, so far as it provides a civil remedy, is copied verbatim by that of Illi- 
 nois, approved 12th Feb. 1853. 2 Stat, of Illinois (Purple's ed.), 1245. 
 
 3 Lucas v. N. Y. Central R. R. Co., 21 Barb. 245. Whether an action 
 will lie at the instance of any relative of the wife, was not decided. See 
 Worley v. C. H. and D. R. R. Co., 1 Handy (Superior Court of Cincinnati), 
 481. In Pennsylvania it is provided by the eighteenth and nineteenth sec- 
 tions of the act of 15th April, 1851 (Acts, p. 674), "That no action hereafter 
 brought to recover damages for injuries to the person by negligence or default, 
 shall abate by reaBon of the death of the plaintiff, but the personal represen- 
 tatives of the deceased may be substituted as plaintiff, and prosecute the suit 
 to final judgment and satisfaction. 
 
 " That whenever death shall be occasioned by unlawful violence or neg- 
 ligence, and no suit for damages be brought by the party injured during his 
 or her life, the widow of any such deceased, or if there be no widow the per- 
 sonal representatives, may maintain an action for and recover damages for the 
 death thus occasioned." Penn. R. R. Co. v. M'Closkey, 23 Penn. State, 526. 
 
260 PERSONAL INJURIES RESULTING- IN DEATH. 
 
 railroads. In New Hampshire, it is held that the 
 indictment must be against the corporation, and 
 not against the individual stockholders, and must 
 show that there are persons living entitled to the 
 fine. 1 
 
 1 State v. Gilmore, 4 Foster, 461 ; B. C. and M. R. R. Co. <i. The State, 32 
 N. H. 215 ; Carey v. Berkshire R. R. Co., 1 Cash. 4*75 ; Skinner v. Housatonic 
 R. R. Corp., id. In these eases, where a widow brought an action against'the 
 company for the loss of her husband's life, who was employed as a laborer 
 upon the road, and a father for the loss of his child's, Metealf, J., comparing 
 the English statute with that of Massachusetts, said, " These statutes are 
 framed on different principles, and for different ends. The English statute 
 gives damages, as such, and proportioned to the injury, to the husband or 
 wife, parents, and children, of any person whose death is caused by the 
 wrongful act, neglect, or default of another person ; adopting, to this extent, 
 the principle on which it has been attempted to support the present actions. 
 Our statute is confined to th«(leath of passengers caused by certain enum- 
 erated modes of conveyance. A limited penalty is imposed, as a punish- 
 ment of carelessness in common carriers. And as this penalty is to be 
 recovered by indictment, it is doubtless to be greater or smaller, within the 
 prescribed maximum and minimum, according to the degree of blame which 
 attaches to the defendants, and not according to the loss sustained by the 
 widow and heirs of the deceased. The penalty, when thus recovered, is 
 conferred on the widow and heirs, not as damages for their loss, but as 
 a gratuity from the commonwealth. We believe that by the civil law, and 
 by the law of France and of Scotland, these actions might be maintained. 
 If such a law would be expedient for us, it is for the legislature to make it." 
 
 The statute of Massachusetts, enacted 23d March, 1840, ch. 80, provides 
 that, " If the life of any person, being a passenger, shall be lost by reason 
 of the negligence or carelessness of the proprietor or proprietors of any rail- 
 road, steamboat, stage-coach, or of common carriers of passengers, or by the 
 unfitness or gross negligence or carelessness of their servants or agents, in 
 this Commonwealth, such proprietor or proprietors, and common carriers, 
 shall be liable to a fine not exceeding five thousand dollars, nor less than five 
 hundred dollars, to be recovered by indictment, to the use of the executor 
 or administrator of the deceased person, for the benefit of his widow and 
 heirs ; one moiety thereof to go to the widow, and the other to the children 
 of the deceased ; but if there shall be no children, the whole to the widow, 
 and if no widow, to heirs according to the law regulating the distribution 
 of intestate personal estate among heirs." 
 
 The statute of New Hampshire is as follows : " If the life of any person 
 
PERSONAL INJURIES RESULTING- IN DEATH. 261 
 
 The measure of damages in such cases is not sub- 
 ject to a definite rule ; but as in the case of injuries 
 to health or reputation, is very much in the discre- 
 tion of the jury, within the limits fixed by the 
 statute, if any are fixed. "Where the remedy given 
 is by an action for damages, the money value of the 
 life destroyed, and not the necessities of the plaintiff, 
 it has been held, is to govern in the assessment of 
 damages. The instruction, that the jury might com- 
 pute the damages by the probable accumulations of 
 a man of the age, habits, health, and pursuits of the 
 deceased, during what would probably have been 
 his life-time, with the added suggestion that if they 
 could find a better rule they were at liberty to 
 adopt it, was not considered e^oneous. It was con- 
 sidered that the damages should noti be limited to 
 such probable accumulations ; for many men make 
 none in a life-time, and many have arrived at an age 
 when they no longer attempt to make any, and yet 
 every one is entitled to his life. 1 
 
 In England, it has been decided, that the jury 
 
 not in the employment of the corporation, shall be lost by reason of the 
 negligence or carelessness of the proprietor or proprietors of any railroad, 
 or by the unfitness or gross negligence, or by the carelessness, of their ser- 
 vants or agents in this State, such proprietor or proprietors shall be liable 
 to a fine not exceeding five thousand dollars, nor less than five hundred 
 dollars, to be recovered by indictment, to the use of the executor or admin- 
 istrator of the deceased person, for the benefit of his widow and heirs, one 
 moiety thereof to go to the widow and the other to the children of the 
 deceased ; but if there shall be no children, the whole shall go to the widow, 
 and if no widow, to his heirs, according to the law regulating the distribu- 
 tion of intestate personal estate among heirs." Laws of 1850, chap. 963, 
 sec. 1 ; N. H. Comp. Stat., 1853, p. 354, ch. 150, § 66. 
 1 Penn. R. R. Co. „. M'Closkcy, 23 Penn. State, 526. 
 
262 PERSONAL INJURIES RESULTING IN DEATH. 
 
 is confined, in giving damages apportioned to the 
 injury resulting from the death of the deceased, to 
 a calculation of the pecuniary loss sustained, and to 
 injuries of which a pecuniary estimate may be made, 
 but cannot add to the compensation for these injuries, 
 damages for the mental suffering occasioned by the 
 bereavement. 1 But where, as in Massachusetts, a 
 penalty is recoverable by indictment, it may be 
 greater or smaller, within the maximum and mini- 
 mum, according to the degree of blame which attaches 
 to the defendant, and not according to the loss sus- 
 tained by the parties who are entitled to the fine. 2 
 
 These statutes provide a remedy for certain rela- 
 tives of the deceased only in cases where, if the 
 injury had not prov^i fatal, he would have had a 
 right of action against the company. Therefore, if 
 the deceased, by the want of ordinary care, con- 
 tributed to the injury, the relatives who come 
 within the class provided for by the statute will 
 be without remedy under it. 8 This rule has been 
 applied in New York, where the person killed was 
 a lunatic, by whose negligence, or that of his father 
 who had charge of him, the injury occurred. 4 So, 
 also, where the fatal injury was occasioned to a 
 servant of the company through the negligence of 
 
 1 Blake v. Midland R. R. Co., 10 Eng. L. and Eq. 431 ; Am. Rail. Cas. 
 446, 447. See Worley v. C. H. and D. R. E. Co., 1 Handy (Superior Ct. of 
 Cincinnati), 481. 
 
 3 Carey v. Berkshire R. R Co., 1 Cushing, 4'75. 
 
 a Haring v. N. Y. and Erie R. E. Co., IS Barb. 9. 
 
 * Willetts v. Buffalo and Rochester E. R. Co., 14 Barb. 5S5. 
 
PERSONAL INJURIES RESULTING IN DEATH. 263 
 
 a fellow-servant, the statute affords no remedy 
 against the company. 1 And the company will not 
 be liable where the deceased was killed through 
 the negligence of a person who, although employed 
 upon its works, was not its servant. 2 
 
 1 Hutchinson v. R. Co., 5 Exoh. 343 ; Wigmore v. Jay, id. 354 ; Paterson 
 v. Wallace, 28 Eng. L. and Eq. 48 ; Marshall v. Stewart, 33 id. 1 ; Sherman 
 ■a. Rochester and Syracuse R. R. Co., 15 Barb. 574 ; M'Millan v. Saratoga 
 and Washington R. R. Co., 20 id. 449 ; Madison and Indianopolis R. R. Co. 
 v. Bacon, 6 Ind. 205. See Hubgh v. N. 0. and C. R. R. Co., 6 La. An. 494. 
 
 * Reedy v. K. Co., 4 Exch. 244, 254. 
 
264 INJURIES TO PERSONS NOT IN 
 
 CHAPTER XII. 
 
 INJURIES TO PERSONS NOT IN PRIVITY OP CONTRACT 
 WITH THE COMPANY. 
 
 The peculiar liability of a railroad company, as a 
 common carrier, for the safety of passengers, to be 
 discussed in a subsequent chapter, rests on princi- 
 ples of public policy and the law of contracts, 
 which have no application to injuries to parties to 
 whom the company has assumed no such special 
 obligation. Nor do the rules for determining its 
 responsibility for injuries suffered by its servants, 
 who are presumed to take upon themselves the 
 risks incident to their employment, apply to inju- 
 ries to third parties who have not accepted a rela- 
 tion of service involving such risks. It is proposed 
 in the present chapter to consider the liability of 
 the company for personal injuries to parties who are 
 neither its passengers nor its servants ; and particu- 
 larly the principle which creates that liability. 
 
 Injuries to Persons exercising a Right, occa- 
 sioned by the Negligence of the Company. — Col- 
 lisions between a locomotive and persons crossing 
 
PRIVITY WITH THE COMPANY. 265 
 
 the track in carriages or on foot, where it intersects 
 a street or highway, present a case where both the 
 person and the company are each exercising an 
 equal legal right, independent of any contract or 
 favor extended by the one to the other. The indi- 
 vidual has a right to cross the track, and the com- 
 pany has a right to cross the highway. This is not, 
 on the one hand, the case of a passenger, in the car- 
 riage of whom the company's liability is governed 
 by a contract express or implied, founded on an ad- 
 equate consideration, which is broken by a neglect 
 to use the highest degree of skill and diligence ; 
 nor is it the case of a wrong-doer unlawfully on the 
 track, and having no claim but for wanton injury. 
 It is the common occurrence of two parties holding 
 equal, independent rights, the exercise of which by 
 one may result in consequential injury to the other. 
 The duty of each under such conditions, in conform- 
 ity with the principles of natural justice and munici- 
 pal law, is to use ordinary care in the exercise of his 
 own right to avoid injury to the other. If, notwith- 
 standing such care by both parties, an injury hap- 
 pens, it is a misfortune which must be borne by the 
 sufferer alone. 
 
 An attempt has been made, without success, to 
 exact a higher degree of skill and diligence of a 
 railroad company. Its peculiar motive power and 
 implements require a kind of skill, a degree of 
 vigilance, and a class of precautions, adapted to 
 them ; but the measure of its responsibility is the 
 same as that which defines the responsibility of 
 
266 INJURIES TO PERSONS NOT IN 
 
 the owners of carriages on the highway. It is 
 bound to use ordinary care to avoid injury to per- 
 sons on the highway crossing its track; and, act- 
 ing through servants, as engineers, conductors, and 
 brakemen, it is responsible for injuries to such per- 
 sons, arising from a want of ordinary care and skill 
 on the part of its servants, — that is, such care and 
 skill as the mass of persons in their business are 
 accustomed to exercise. Thus, in an action against 
 the company, for an injury sustained by the plain- 
 tiff in consequence of being struck down and run 
 over while walking along the track in one of the 
 streets of a city, the instructions to a jury, " that a 
 railroad company or its agents, in crossing or pass- 
 ing over a public street in a populous city with 
 their locomotive, are bound to use the utmost care 
 and diligence to exonerate them from liability to 
 foot passengers, who have a right, and may be mo- 
 mentarily expected, to pass along upon its side- 
 walks, and that ordinary care was not enough to 
 exonerate them from that liability," was held erro- 
 neous. It was considered that the highest diligence 
 is not to be exacted of any person, except when a 
 compensation is paid for the service ; or when the 
 party injured is in the power and under the control 
 of the defendant, as in case of stage passengers ; or 
 the party officiously obtrudes his services upon 
 another, or is the sole party deriving a benefit 
 from the act ; or the party occasioning the injury 
 was in the wrong place, or engaged in an unlawful 
 calling ; — and that in this case, where both parties 
 
privity with the company. 267 
 
 stand on an equality as to the means of avoiding the 
 accident, and both are engaged in a lawful employ- 
 ment, only ordinary diligence can be required of the 
 company. 1 
 
 1 Brand v. Schenectady and Troy R. R. 8 Barb, 368, 379. Willard, J. . 
 *' Diligence is a relative term, and must be proportioned to the danger against 
 which it is required to gnard. More active vigilance is required to conduct 
 a locomotive through the streets of a populous town, than is necessary to 
 guide a sled, drawn by oxen, in an unfrequented place. The degree of 
 ordinary care implies a higher state of mental activity in the one case than 
 in the other. It demands more skill and science to guide a ship on the 
 ocean than a mudscow in a harbor. And yet in the performance of either 
 duty, we may witness the several degrees of care or neglect which we have 
 been considering. Where the law exacts ordinary care, in the performance 
 of any business, it has reference to the care which men of common prudence 
 generally exercise in the same business or that which is the most analogous 
 to it. It does not expect from the farrier, the delicate and skillful move- 
 ments of the oculist. It judges each by the standard of his own profession. 
 In saying that a farrier has been guilty of negligence in shoeing a horse, 
 we do not judge him by the skill and dexterity which the most eminent 
 surgeon would exert in some delicate operation upon the human frame, but 
 we refer to that standard which all farriers would recognize as the criterion 
 of ordinary skill and care in that profession. The same principles apply to 
 engineers engaged in the management of locomotives on our railroads. 
 They must bring to the employment a skill and care adequate to the duty, 
 having reference to speed and safety. These qualities must be tested by a 
 comparison with those of others engaged in the like occupation. The care 
 and skill which the mass of engineers of common attainments exercise in 
 their calling constitute the ordinary skill and diligence by which the differ- 
 ent degrees of diligence are to be measured, and by which the conduct of 
 the engineer is to be governed. 
 
 " These considerations will enable us to examine the question whether 
 the learned judge was right in instructing the jury, that the defendants 
 were bound to use the utmost care and diligence, and that ordinary care 
 was not enough to exonerate them from such liability. If we view the case 
 upon principle, the rule promulgated to the jury seems to be too rigorous. 
 In general, the highest diligence is not exacted from any person, except 
 when a compensation is paid for the service, or when the party injured was 
 in the power and under the control of the defendant, as in the case of stage 
 passengers ; or the party officiously obtrudes his services upon another ; or 
 is the sole party deriving a benefit from the act ; or the party occasioning 
 
268 INJURIES TO PERSONS NOT IN 
 
 But while the same rule of care and skill measures 
 the liability of a railroad company as that of indi- 
 viduals, it may be well to remark, that the consid- 
 eration should be ever present to its agents and 
 servants, that they are dealing with dangerous ele- 
 ments and forces, eminently destructive to human 
 life and limb. Although bound to exercise reasonable 
 
 the injury was in the -wrong place, or engaged in an unlawful calling. If 
 both parties stand on an equality as to the means of avoiding the accident, 
 and both are engaged in a lawful employment, it is hard to conceive how 
 more than ordinary diligence can be demanded. In the present case the 
 defendant had as good a right to pass over the track at the period in ques- 
 tion, as the plaintiff to walk the streets, or to go over the cross-walk.'' 
 Beers v. Housatonic R. R. Co. 19 Conn. 566, 576. Storrs, J. : — "We do not 
 accede to the suggestion, that there is any distinction between railroads and 
 ordinary highways in regard to the degree of care which the law requires 
 on the part of those who have the direction or management of vehicles upon 
 them. The rule is the same on this subject whether they are driven or pro- 
 pelled on one or the other of these roads, and where there is an interfer- 
 ence, whether one of them crosses a road of the same, or of the other kind. 
 The proprietors of railroads have no immunity which excuses them for a 
 less, or authorizes them to require a greater degree of care when about to 
 cross an ordinary road, than if theirs was one of the latter description. Rea- 
 sonable care is that which is required, on the part of those who have the 
 management of vehicles on either of them, in all cases. By this, we do not 
 mean to be understood, that the same particular precautions, the same spe- 
 cific preventive measures, are required or tolerated indiscriminately in all 
 these cases ; or, in other words, that they would invariably constitute rea- 
 sonable care. It is, from the very nature of the case, impossible for the law 
 to prescribe the determinate acts, which, in any case, much less those which 
 in all cases, would constitute this kind of care. What should be deemed 
 reasonable care, in any case, must depend on the peculiar circumstances of 
 that particular case. Those precautions which would be reasonable in some 
 circumstances, might not be so in others. For instance, one might safely 
 and properly drive on a broad, straight highway in the country, which is 
 little frequented by travelers, with a speed Tvhich wouldbe imminently dan- 
 gerous in a narrow and crooked street of a city, which is usually thronged • 
 with people. So, what would be reasonable care in one driving a carriage 
 on an ordinary road, and about to meet another carriage coming upon an- 
 other road of the same description, which intersects it, might, if that other 
 
PEIVITY WITH THE COMPANY. 269 
 
 care and skill only, except in the carriage of passen- 
 gers, what will answer that requirement where there 
 is little peril, will not where the peril is great. The 
 care and skill, therefore, to be reasonable, must be 
 proportioned to the danger and multiplied chances 
 of injury ; and similar precautions, it may be added, 
 may be expected of a party who has occasion to be 
 in the vicinity of its engines. 1 
 
 were a railroad on which cars were advancing, be considered gross negli- 
 gence, in consequence of the velocity with which carriages on the latter 
 kind of road are propelled, and the comparative difficulty of controlling 
 them. So, for obvious reasons, it is usually less safe to drive rapidly in 
 turning the corners or passing the cross-walks of streets, than where the 
 course is straight, or there are no such walks. Reasonable care requires 
 that, in all cases, the precautions should be proportioned to the probable 
 danger of injury ; and the question as to the exercise of such care is to be 
 determined like other questions of fact." Aurora Branch R. R. Co. 13 111. 
 585 ; Central Military Tract v. Rockafellow, 17 id. 541 ; Moore v. R. R. Co. 
 4 Zabris. 268, 824; Parker v. Adams, 12 Met. 415; Kelsey v. Barney, 2 
 Kernan, 425 ; Altreuter v. Hudson River R. R. Co. 2 E. D. Smith, 151 ; 
 Macon and W. R. R. Co. v. Davis, 18 Geo. 679; Park v. O'Brien, 23 Conn. 
 339 ; Neal v. Gillett, id. 437. 
 
 1 Beers v. Housatonic R. R. Co. 19 Conn. 566 ; Moshier v. TJtica and 
 Schenectady R. R. Co. 8 Barb. 427 ; Huyett v. Phil, and Reading R. R. Co. 
 23 Penn. State, 374; Morrison v. Davis, 20 id. 177 ; Runyon v. Central R. R. 
 Co. 1 Dutcher, 558. Potts, J. : — " It must be considered now the settled law, 
 that in cases of this kind, if by the exercise of ordinary skill and care, the 
 plaintiff could have avoided the injury, or if his conduct contributed to pro- 
 duce it, he is not entitled to recover, even though the defendants were also 
 guilty of negligence. The subject was fully discussed and settled in the case of 
 Moore v. The Central Railroad, in this court, 4 Zab. 268, and subsequently 
 in the Court of Errors, in the same case ; and those decisions are in accord- 
 ance with the current of authority in this country and in England before 
 and since. The necessities of railroad travel demand a speed at which it is 
 impossible to stop in time to prevent a collision, if persons traveling on the 
 highway rush carelessly or recklessly upon a crossing ahead of an approach- 
 ing train ; and every collision of the kind places not only the party driving 
 on the track, but the passengers in a train of cars, in imminent peril ; many 
 times occasions great loss of life. Every precaution should be used, by 
 
270 INJURIES TO PERSONS NOT IN 
 
 Whenever a party is lawfully on the track, 
 whether in crossing it where it intersects the high- 
 way, or in occupying it at its station or other points, 
 the company is bound to use reasonable care to avoid 
 injury to him. Thus, where the plaintiff drove his 
 wagon on to the track at a station by permission of 
 the agents of the company to receive freight, it was 
 incumbent on the company by some agent or officer 
 to notify the plaintiff of the approach of the cars, 
 verbally, or by some known signal, in time to enable 
 him to remove his wagon by using reasonable dili- 
 gence and alacrity. 1 
 
 An injury may be done to a party or his property 
 on the highway in the operation of a railroad, without 
 any actual collision. Thus, a horse may take fright 
 from the noise or movement of a steam engine, and 
 run in consequence thereof, so as to receive great or 
 fatal injury. The authority to operate a railroad 
 includes an authority to make a noise, which is 
 necessarily incident to its operation, and is usually a 
 beneficent admonition of danger. Accordingly, the 
 blowing of the whistle, or the ringing of a bell, or 
 both, are sometimes enjoined by statute. The noise, 
 then, which may awaken fear, being a lawful and ne- 
 cessary act in operating a railroad, unless accompa- 
 
 both the drivers of the team and persons traveling in their own convey- 
 ances, to guard against coming in contact. The proper signals should 
 always be given from a locomotive on approaching a crossing, and the omis- 
 sion of this caution should be punished. But, besides this, persons approach- 
 ing a crossing in vehicles of their own, must use their eyes and ears, and 
 exercise common care and prudence to avoid a collision, commensurate with 
 the danger, or they are no less reprehensible." 
 
 1 Shelbyville Lateral Branch R. E. Co. v. Lewark, 4 Ind. 471. 
 
PRIVITY WITH THE COMPANY. 271 
 
 nied by some wrongful act, as running at a too rapid 
 rate, or creating unnecessary noise, does not make 
 the company liable for damages resulting therefrom. 1 
 The same considerations apply to injuries resulting 
 from fright at the movement and working of the 
 engine and train. But where the injury from fright 
 would not have been occasioned but for some breach 
 of duty on the part of the company, it will be re- 
 sponsible. If the fear which is the proximate cause 
 of the injury was excited by an unlawful act, or by 
 an act in itself innocent but performed in an unlaw- 
 ful place, without the precautions which prudence 
 requires, it is but just to hold it accountable. This 
 principle has been applied where the company was 
 chargeable with a breach of duty in constructing the 
 road. Thus, where the charter required it to purchase 
 a turnpike road running parallel to the proposed rail- 
 road, and to assume the liabilities of the corporation 
 owning the turnpike before it should be permitted to 
 run its cars upon its own road, and authorized it to 
 construct its track along and across the bed of the 
 turnpike, but required it " to restore the road to its 
 former state, or in a sufficient manner not to impair its 
 usefulness," it was held, that if the taking of a part of 
 the bed o,f the turnpike for the track of the railroad, 
 or the bringing it into close proximity to the turn- 
 pike, rendered it dangerous to persons traveling 
 with teams on the latter, and thus impaired its use- 
 fulness to the public, the company was bound either 
 to remove the two roads further from each other, or 
 
 1 Barton v. Phil. Wil. and Bait R. R. Co., 4 Hairing. 225. 
 
272 INJURIES TO PERSONS NOT IN 
 
 to separate them by protecting guards, and was liable 
 for injuries from fright, resulting from a neglect of 
 these precautions. 1 
 
 Precautions Eequired bt Statute. — The obliga- 
 tion of the company to use reasonable care and dili- 
 gence in running their engines over crossings, to 
 prevent injury to travelers on the road crossed, is 
 not discharged by a mere compliance with the spe- 
 cific requirements of a statute, imposing on it the 
 duty to put up notices, ring a bell, or blow a whistle. 
 These requirements are merely cumulative, and it is 
 bound to use such other necessary precautions as the 
 circumstances require. 2 
 
 Negligence of the Injured Party. — The obliga- 
 tion to use ordinary care, is incumbent on a party who 
 has suffered from a collision with the company's train, 
 as well as upon it and its servants. The performance 
 of this duty on his part, and the breach of the cor- 
 responding duty on the part of the company, must 
 concur, to entitle him to damages received in a col- 
 lision. If both the company and the individual are 
 in the wrong by the breach of this duty, neither can 
 recover of the other. The law will not apportion 
 the damages suffered by wrong-doers. The general 
 rule, resulting from the authorities, is that a party 
 suffering injury on a highway, in a collision with a 
 
 1 Moshier v. Utica and Schenectady R. R. Co., 8 Barb. 427. 
 ' Bradley v. Boston and Maine R. R. 2 Cush. 639 ; Linfield v. Old Colony 
 R. R. Corp. 10 id. 562; Macon and W. R. R. Co. v. Davis, 18 Geo. 619. 
 
PRIVITY WITH THE COMPANY. 273 
 
 company's train, is entitled to damages on proof both 
 of a want of ordinary care on its part, and the exer- 
 cise of the same degree of care on his own. And if 
 he was himself chargeable with a want of ordinary 
 care, and thereby contributed to the injury, he is 
 without remedy. 1 Thus, where it appeared that the 
 plaintiff in approaching the track had an uninter- 
 rupted view of it for a mile in the direction from 
 which the train was coming, so that he might have 
 seen it if he had turned his eyes in that direction, it 
 was considered that if the plaintiff saw the train, it 
 was an act of madness for him voluntarily to place 
 himself in its way, and if he did not see it, the reason 
 was that he allowed his attention unnecessarily to 
 be drawn another way ; that upon such facts it was 
 impossible to maintain that he was free from negli- 
 gence ; and in order to recover he must establish the 
 proposition that he was himself without negligence, 
 and without fault. 2 So, where it appeared that the 
 colliding train was one of the fastest run by the 
 company, and was running in the day time, within a 
 minute or two of its regular time, and could have 
 been seen half a mile from the place of collision, and 
 the plaintiff, who knew where the track was, and had 
 been walking his horse for some distance when ap- 
 proaching "it, was struck by the train at the crossing, 
 
 1 Murch v. Concord R. E. Corp. 9 Foster, 43 ; Moore v. Central R. R. Co., 4 
 Zabris. 268; 824 ; Runyon v. Central R. R. Co., 1 Dutcher, 556. The negligence 
 of a slave which has contributed to the injury to him, exonerates the com- 
 pany from liability therefor in an action brought by the master. Herring 
 v. WiL and Ral. R. R. Co., 10 Iredell, 402 ; Richardson v. W. and M. R. R. 
 Co., 8 Rich. 120 ; Macon and Western R. R. Co. v. Davis, 18 Geo. 619. 
 
 ' Spencer v. Utica and Schenectady R. R. Co., 6 Barb. 337. 
 
 19 
 
274 INJURIES TO PERSONS NOT IN 
 
 it was considered that his conduct showed inexcu- 
 sable negligence, being like that of one courting de- 
 struction ; that the most ordinary care, would have 
 prompted him to cast his eyes back and forward 
 upon the railroad, to see if a train was approaching; 
 and if he had done so, he could not have failed to 
 escape the injury. It was declared to be a Well- 
 settled and incontrovertible principle, that an action 
 for negligence cannot be sustained, if the wrongful 
 act or negligence of the plaintiff or his agent co-ope- 
 rated with the misconduct of the defendant or his 
 agent, to produce the damage sustained ; and that in 
 order to recover in such a case, the plaintiff must be 
 without fault. 1 
 
 If the evidence of the plaintiff which is clear, 
 explicit, and indisputable, shows that he contributed 
 to the injury, he may be nonsuited without submit- 
 ting the cause to the jury. 2 
 
 There are cases in which the rule has been said 
 to be, that the plaintiff can not recover if at all 
 negligent, or guilty of the least degree of neg- 
 ligence; seeming to imply that the same result 
 would follow whether the negligence amounted or 
 not to want of ordinary care, or whether or not it 
 contributed to the injury. Cases may be conceived 
 in which the plaintiff may have been chargeable 
 with some degree of negligence, and yet has con- 
 ducted with ordinary care, that is, such care as men 
 of common prudence use under like conditions. 
 
 1 Sheffield v. Rochester and Syracuse R. R. Co., 21 Barb. S39. 
 * Haring v. N. Y. and Erie K. R. Co., 13 Barb. 9 ; Sheffield v. Rochester 
 and Syracuse R. R. Co., 21 Barb. 339. 
 
PRIVITY WITH THE COMPANY. 275 
 
 Others may be conceived where the plaintiff has 
 neglected to use common precautions, and yet if he 
 had used them the injury would nevertheless have 
 resulted from the default of the company. In each 
 of these supposed cases, the injured party was not 
 the author of the wrong ; and the company may well 
 he held liable for the consequences of its want of 
 ordinary care, which has produced the injury. The 
 more considered statement of the rule is, that the 
 company is liable for injuries to persons, lawfully on 
 its track, through want, of ordinary care on the part of 
 its servants ; and the limitation is that the plaintiff 
 must bear his own loss, if through want of ordinary 
 care he has contributed to the injury. The limita- 
 tion is to be construed so as to make the company 
 liable for the consequences of its negligence where 
 the plaintiff, although he did not use ordinary care, 
 has not by the neglect of it contributed to the injury, 
 or could not have avoided it by the exercise 
 of such care. 1 Thus, it has been held that where 
 an injury has resulted from the defendant's negli- 
 gence, it is not sufficient for him to show that there 
 was a want of care on the part of the plaintiff, unless 
 
 1 Davies v. Mann, 10 Meeson & Wels. 546 ; Bridge v. Grand Junction R. 
 Co., 3 id. 244 ; Kennard v. Burton, 28 Maine, 39 ; Robinson v. Cone, 22 Vt. 
 213; Center v. Finney, 17 Barb. 94 ; Moore v. Central R. R. Co., 4 Zabris. 
 268, 824 ; Runyon v. Central R. R. Co., 1 Dutcher, 556 ; Aurora Branch R. R. 
 Co. v. Grimes, 13 111. 585. The rule has been stated in various ways, with 
 more or less accuracy. It has been laid down, that notwithstanding the 
 negligence of the plaintiff, he can recover if the defendant by the exercise of 
 ordinary care could have avoided the injury. Macon and W. R. R. Co. v. 
 Davis, 18 Geo. 679 ; Trow «. Vt. Central R. R. Co. 24 Vt. 495. This must 
 be considered erroneous ; as it would in certain cases enable a plaintiff to 
 recover where he had been guilty of a want of ordinary care, and thereby 
 brought the injury upon himself. 
 
2*76 INJURIES TO PERSON'S NOT IN 
 
 it was a want of that degree of care — that is, ordinary 
 care — which it is incumbent on him to exercise ; and 
 the charge that " if there was negligence on the part 
 of both the plaintiff and the defendant, and the plain- 
 tiff by the exercise of ordinary care could have avoid- 
 ed the injury, and did not exercise such care, and 
 thereby contributed in any degree to the injury, he 
 could not recover ; but that if the plaintiff could not 
 by the exercise of ordinary care, have avoided the 
 injury, the want of such care on his part, would not 
 preclude him from recovery," — was held proper. 1 
 And although the defendant has been guilty of gross 
 negligence, in the absence of an intention to commit 
 the injury the plaintiff cannot recover where, by the 
 want of ordinary care, he has materially contributed 
 to the injury which he might have avoided by the 
 exercise of such care. 2 
 
 The distinction has been taken between proxi- 
 mate negligence, that is, negligence occurring at 
 the time of the injury — and remote negligence, 
 that is, negligence occurring at some time before 
 the injury. Where there has been mutual negli- 
 gence, and the negligence of each was the proxi- 
 mate cause of the injury, no action can be sus- 
 tained. Nor can an action be sustained where the 
 negligence of the plaintiff is proximate, and that 
 of the defendant remote, or consisting in some other 
 matter than what occurred at the time of the injury ; 
 under which rule falls that class of cases where the 
 injury arose from the want of ordinary care on the 
 
 1 Beers v. Housatonic R. R. Co., 19 Conn. 566. 
 1 Neal v. Gillett, 28 Conn. 437. 
 
PRIVITY WITH THE COMPANY. 2*77 
 
 part of the plaintiff at the time of its occurrence. 
 But on the other hand, the negligence of the defend- 
 ant being proximate, and that of the plaintiff remote, 
 the action will be sustained, although the plaintiff is 
 not entirely without fault. 1 
 
 The general rule that the plaintiff cannot re- 
 cover if his own negligence has contributed to the 
 injury, applies also where there is a legislative act, 
 which is construed to be declaratory of the com- 
 mon law, making railroad companies liable for 
 certain injuries done by them. 2 It will also exclude 
 the plaintiff from recovering damages under stat- 
 utes providing a remedy to certain relatives of a 
 deceased who has been killed through negligence, 
 where the intestate's own carelessness has contributed 
 to the fatal injury. 8 
 
 In several of the States, acts have been passed 
 requiring railroad companies on approaching road 
 and street crossings, to ring bells, sound whistles, or 
 use other like precautions. Such acts, although ap- 
 plied to companies already chartered, are held con- 
 stitutional, being designed for the general security, 
 and not interfering with the powers conferred by 
 the charter. 4 But the obligation of the company to 
 use these specific precautions to prevent collisions, 
 does not exempt the plaintiff from his obligation to use 
 
 ' Trow v. Vt. Central R. R. Co., 24 Vt. 494; Kerwhacker v. C. C. & C. 
 R. R. Co., 8 Ohio State, 172 ; C. C. & C. R. R. Co. v. Eliott, 4 id. 474; R. R. 
 Co. v. Norton, 23 Perm. State, 469. See Rigby v. Hewitt, 5 Exch. 240 ; 
 Greenland v. Chaplin, 6 id. 243. 
 
 * Macon and W. R. R. Co. v. Davis, 13 Geo. 68. 
 
 3 Haring v. N. Y. and Erie R. R. Co., 13 Barb. 9 ; WillettB v. Buffalo and 
 Rochester R. R. Co., 14 id. 585 ; ante, ch. xi. p. 262. 
 
 4 Ante, ch. iii pp. 40, 41. 
 
278 INJURIES TO PERSONS NOT IN 
 
 ordinary care to avoid injury ; and though the com- 
 pany neglects to fulfill these statute requirements, 
 if the plaintiff by his want of ordinary .care con- 
 tributes to the injury, he cannot recover of the com- 
 pany. 1 Nor is the burden of the proof upon the 
 company to show that the injury did not arise from 
 its omission, until some proof is given tending to 
 show that the injury resulted from the neglect to 
 give the required signal. 2 
 
 Negligence oe Children and Disabled Persons. 
 — It is a question, not without some conflict of state- 
 ment, whether the same conduct which in a person 
 of full age and capacity would be negligence so as 
 to exclude him from redress for the consequences of 
 the negligence of others, would, in a child of tender 
 years, still under the dominion of childish instincts, 
 or in a blind, or deaf, or crippled person, or in a non 
 compos, as in an insane or intoxicated person, have 
 the same effect ; or whether a less degree of care, 
 proportioned to their capacity, is all that is required 
 of such disabled persons. On the one hand, it has 
 been considered that the ordinary care required of 
 the plaintiff is only such as his capacity admits of, 
 or may reasonably be expected of him ; and if he 
 
 1 Parker v. Adams, 12 Met. 415; Haring v. N. Y. and Erie R. R. Co., IS 
 Barb. 9 ; Sheffield v. Rochester and Syracuse R. R. Co., 21 id. 339. See 
 General Steam Navigation Co. v. Morrison, 20 Eng. L. & Eq. 267 ; Morrison 
 v. General Steam Navigation Co., 20 id. 455. 
 
 2 Galena and Chicago Union R. R. Co. i>. Loomis, 13 111. 548. The New 
 York statute only requires the whistle to be sounded while approaching a 
 crossing, and not after it is passed. Wilson v. Rochester and Syracuse R. R. 
 Co., 16 Barb. 167. 
 
PRIVITY WITH THE COMPANY. 2*79 
 
 exercises that, although under the same circum- 
 stances another person of full age and capacity 
 would be without redress, he is entitled to recover 
 for the consequences of the defendant's negligence. 
 The doctrine has been stated in this form in En- 
 gland. 1 It has been accepted in Vermont 2 and Con- 
 necticut. 8 
 
 On the other hand, it has been held in New 
 York, that the negligence of the guardians and pro- 
 tectors of such persons, in allowing them to place 
 themselves in a dangerous position, must in law be 
 regarded as their negligence, so as to make it a 
 defence to an action for injury to them arising from 
 the defendant's negligence, in the same manner as if 
 the action was for an injury to a person of full age 
 and capacity. 4 
 
 Without adopting either statement as an absolute 
 rule, a distinction may be taken which is justified in 
 principle as well as in the facts of the cases cited 
 and the opinions given, and will go far to reconcile 
 them. It is a familiar doctrine, that what satisfies 
 the requirement of ordinary care in one case, may 
 
 1 Lynch v. Nurdin, 1 Q. B. 29 ; 41 E. 0. L. The authority of this case 
 is now doubtful. See Lygo v. Newbold, 9 Exch. 302. 
 * Robinson v. Cone, 22 Vt. 213. 
 
 3 Birgej>. Gardiner, 19 Conn. 507. But children of the age of thirteen years 
 were held to be so emancipated from the dominion of mere childish instincts 
 as to be under the same obligation to use ordinary care as adults. Neal v. 
 Gillett, 23 Conn. 43*7. Whether the youth of the defendant excuses his neg- 
 ligence to the same extent as the youth of the plaintiff excuses his, was not 
 decided. Id. 
 
 4 Hartfield *. Roper, 21 Wend. 615 ; Brown v. Maxwell, 6 Hill, 592 ; 
 Munger ». Tonawanda R. R. Co., 4 Comst. 359 ; Willetts v . Buffalo and 
 Rochester R. R. Co., 14 Barb. 585 ; Kreig v. Wells, 1 E. D. Smith, 74. 
 
280 INJURIES TO PERSONS NOT IN 
 
 not under the circumstances of another ; the vigil- 
 ance and precautions rising according to the dan- 
 ger to be apprehended. In graduating that vigil- 
 ance and arranging those precautions, the agents of 
 the company must necessarily take into considera- 
 tion what vigilance and precautions may reasonably 
 be expected of the persons, injury to whom is to be 
 avoided. "What would be ordinary care, in regard 
 to a person whom they supposed to be competent 
 to avoid the injury, would not fulfill the require- 
 ment in the case of a child, or of one known to 
 them to be incapable of escaping danger. Thus, if 
 in running an engine they observe in advance of it 
 a person they have a right to suppose to be of full 
 age and capacity, and to be forewarned of danger, 
 they may ordinarily act on the supposition that he 
 will move from such dangerous position in time to 
 avoid injury ; but if they observe a very young 
 child on the track, or a person who is blind, deaf, 
 insane, intoxicated, asleep, or .otherwise off his 
 guard, and is known by them to be in that condi- 
 tion, — driving the engine forward as though such 
 person was of full age and capacity and on his 
 guard, might well be regarded as wanton reckless- 
 ness of human life, for which the company would 
 be liable although the plaintiff was negligent. On 
 the other hand, if they did not suppose, and had no 
 reason to apprehend, that such disabled persons 
 were in peril, they would not be required to exer- 
 cise greater vigilance than is required to prevent 
 injury to persons of full age and capacity. The 
 knowledge, then, of the company, that such disabled 
 
PRIVITY WITH THE COMPANY. 281 
 
 persons are in danger, is to be taken into consider- 
 ation in determining whether it has fulfilled the 
 requirement of ordinary care ; and in the absence of 
 such knowledge, the same acts of negligence which 
 would preclude a person of full age and capacity 
 from redress, must also preclude them. This view, 
 while it recognizes the suggestions of humanity, 
 enforces the general rule of mutual responsibility, 
 and is sustained by the authorities. 1 Thus, where a 
 lunatic was traveling on the cars, in company with 
 his father, who had paid the fare for both, and who, 
 after leaving the train temporarily at a station, on 
 returning to it did not find his son, — the latter hav- 
 ing changed his seat in the mean time, the conductor, 
 without notice or knowledge of his insanity or that 
 he had paid his fare, applied to him for a ticket, 
 and on his refusal to deliver one caused the train 
 to be stopped and the lunatic to be put off; in con- 
 sequence of which, some hours after, and at a place 
 five miles distant, he was run over by another train 
 and killed, — it was held, in an action bv the father 
 
 7 7 *r 
 
 to recover damages for the fatal injury, that on the 
 assumption that the party killed was sane, there 
 could be no recovery, as he was guilty of great 
 negligence and imprudence ; that the conductor, 
 having no notice or suspicion of his insanity, he 
 must be regarded as sane so far as the company 
 was concerned ; and the negligence of his father in 
 leaving him without a protector was his negligence 
 
 1 Robinson v. Cone, 22 Vt. 224, 225 ; Herring v. Wilmington and Raleigh 
 R*R. Co., 10 Iredell, 402. See Lynch v. Nurdin, 1 Q. B. 38. 
 
282 INJURIES TO PERSONS NOT IN 
 
 so as to prevent a recovery, as in other cases where 
 the injured party has substantially contributed to 
 the injury ; but it was suggested, that if the con- 
 ductor had had notice of the lunacy, the company 
 would on that account have been held to a stricter 
 responsibility. 1 
 
 Negligence a Question of Fact. — Where the 
 gist of the action is negligence, the question whether 
 the defendant has been negligent so as to subject him 
 to liability, and whether the plaintiff has been neg- 
 ligent so as to exempt the defendant from liability, is 
 one of fact for the jury under the instructions of the 
 court as to the principles of law applicable thereto. 2 
 In Connecticut, negligence is held to be exclusively 
 a conclusion of fact ; and the court will not declare 
 it as a conclusion of law from facts admitted or 
 proved, but will leave it as a fact to be found by the 
 
 1 Willetts v. Buffalo and Rochester R. R. Co., 14 Barb. 585. 
 
 " Munroe v. Leach, 7 Met. 274 ; Bradley v. Boston and Maine E. R. 2 
 Cush. 543 ; Kennard v. Burton, 25 Maine, 39 ; Robinson v. Cone, 22 Vt. 226 ; 
 Mureh o. Concord R. R. Corp. 9 Foster, 9, 44 ; Burton v. Phil., Wil. and 
 Bait R. R. Co. 4 Harring. 252 ; Maeon and W. R. R. Co. v. Davis, 18 Geo. 
 679, 68"?; Huyett v. Phil, and Reading R. R Co. 23 Penn. State, 373 ; 
 M'Cahill v. Kipp, 2 E. D. Smith, 413'; Aldridge o. Great Western R. Co. 
 3 Eng. Rail. Cas. 852 ; 3 M. & Gr. 515 ; Marriott v. Stanley, 1M.A Gr. 568 ; 
 Clayards is. Dethick, 12 Q. B. 439 ; 1 Parsons on Cont. 702. But in Herring 
 v. Wil. and Raleigh R. R. Co. 10 Iredell, 402, it is said that " what amounts 
 to negligence is a question of law." Moore v. Centnal R. R. Co. 4 Zabris. 
 268, 277. Ogden, J., " What constitutes negligence and reasonable care, I 
 take to be a question for the court. Whether the facts relied upon to es- 
 tablish the one, or prove the exercise of the other, are true, is to be left for 
 the jury." But see the opinions delivered in the Court of Errors and 
 Appeals, 4 id. 824. t 
 
PRIVITY WITH THE COMPANY. 283 
 
 jury from the circumstances. 1 But in Vermont it is 
 decided that negligence is a mixed question of law 
 and fact, upon which it is the duty of the court to 
 instruct the jury specifically; and where facts in the 
 case are admitted, or where there is testimony tending 
 to prove facts, it is the duty of the court to instruct 
 the jury whether these alleged facts, if they find them 
 
 1 Beers v. Housatonio R. R. Co. 19 Conn. 566, 569. Storrs,J., — "When 
 it is considered that negligence or a want of due care, was here the main fact 
 to be ascertained, and that the facts, or more correctly speaking, the circum- 
 stances, thuB given in evidence, were only evidential of such main fact, and 
 conducing to prove it, it is obvious that the court could not have pro- 
 nounced that those circumstances proved the existence of negligence, or a 
 want of due care on the part of the plaintiff, without encroaching on the 
 rights of the jury, whose exclusive province it was to weigh the evidence, 
 and determine whether it was sufficient for that purpose. If it were com- 
 petent for the defendants to have availed themselves of a want of ordinary 
 and reasonable care, on the part of the plaintiff, by a special plea, and that 
 special plea should allege merely the facts or circumstances on which the 
 defendants claim that the court should have declared to the jury that such 
 want of care was proved ; or if they had been found in a special verdict, by 
 the jury, it is quite clear that such plea or verdict would be unavailable to 
 the defendants on this question, for the reason that the one would allege, and 
 the other would find, only the evidence of the fact in issue, and not the fact 
 itself; it not being the duty of the court to draw inferences from evidence, 
 but only to pronounce legal conclusions from facts admitted or properly 
 found. Whether there was negligence or a want of care, of whatever 
 degree, was, from its very nature, a question of fact, and therefore to be 
 decided by the jury." Park v. O'Brien, 23 id. 347. Storrs, J., — " The ques- 
 tion as to the existence of negligence, or a want of ordinary care, is one of a 
 complex character. The inquiry, not only as to its existence, but whether it 
 contributed with negligence on the part of another, to produce a particular 
 effect, is much more complicated. As to both, they present, from their very 
 nature, a question, not of law, but of fact, depending on the peculiar circum- 
 stances of each case, which circumstances are only evidential of the principal 
 fact, that of negligence or its effects, and are to be compared and weighed 
 by the jury, whose province it is to find facts, not by any artificial rules, but 
 by the ordinary principles of reasoning ; and such principal fact must be 
 found by them, before the court can take cognizance of it, and pronounce 
 upon its legal effect." 
 
284 INJURIES TO PERSONS NOT IN 
 
 to be true, constitute that negligence which will 
 defeat the action. 1 
 
 Although negligence is a question of fact for the 
 jury, the court has the power to set aside a verdict 
 which finds that fact against evidence, on the same 
 grounds on which verdicts on other questions are 
 set aside. So also, if the plaintiff's own testimony 
 clearly shows that he was guilty of such negligence 
 as to defeat his action, the court will order a non- 
 suit without submitting the cause to the jury. 2 And 
 where there is no proof of the defendant's negli- 
 gence, it is error to submit to the jury its existence 
 as a debatable matter. 8 
 
 Injuries to Trespassers. — If a person places him- 
 self unlawfully on the track, he can only recover for 
 wanton injury. 4 And where two companies have a 
 right to use the track, although authorized by one 
 company, he will be considered unlawfully upon it, 
 when he uses the track for an improper purpose. 
 Thus, where the plaintiff, in the employ of a con- 
 tractor with the railroad company owning the road, 
 fastened on the rail a machine for sawing wood, and 
 while using it was injured by the train of another 
 company having a right to use the track, it was 
 held that though he was upon the track by author- 
 
 1 Trow v. Vt. Central R. R. Co. 24 Vt. 497. The rule as stated in this 
 case cannot be regarded as law. See Morse v. Kut. & Bur. R. R. Co. 2"7 Vt. 49. 
 
 s Haring v. N. Y. and Erie R. R. Co. 18 Barb. 9 ; Willetts v. Buffalo and 
 Rochester R. R Co. 14 Barb. 693 ; Rochester and Syracuse R. R. Co. 21 
 id. 339 ; Moore v. Central R. R. Co. 4 Zabris. 268. 
 
 s R. R. Co. v. Skinner, 19 Penn. State, 298. 
 
 * Robertson d, N. Y. and Erie R. R. Co, 22 Barb. 91. 
 
PRIVITY WITH THE COMPANY. 285 
 
 ity of the superintendent of the company owning 
 the road, he could not recover against the other 
 company for the injury, even though the conductor 
 of the train previously knew of the machine being 
 on the track, and was guilty of negligence on the 
 occasion. The imprudence of the plaintiff was the 
 immediate cause of the injury, and where the par- 
 ties are mutually in fault, there can be no appor- 
 tionment of damages. 1 
 
 But the agents of a company have no right to 
 inflict wanton injury on persons unlawfully on the 
 track; and where human life and limb are con- 
 cerned, that injury may well be considered as 
 wanton, subjecting the company to damages, when, 
 although able to do so, they neglect to arrest the 
 engine which they have good reason to believe will, 
 without an effort to stop it, result in injury to the 
 wrong-doer. A wrong-doer is not necessarily an 
 outlaw as to his property ; still less as to his per- 
 son. 2 
 
 If an engineer sees a person on the track at some 
 distance before the engine, he may well proceed on 
 the supposition that the person will leave it in time 
 to save himself from harm. But if he sees persons on 
 the track whom he knows to be intoxicated, asleep, 
 or otherwise off of their guard, he will not be justi- 
 fied in neglecting to use his best efforts to arrest the 
 locomotive. 8 
 
 1 Kailroad Co. v. Norton, 24 Penn. State, 465. 
 a See Railroad Co. v. Norton, 24 Penn. State, 466. 
 3 Herring v. Wilmington and Raleigh R. R. Co. 10 Iredell, 402. Ante, 
 pp. 279, 280. 
 
286 INJURIES TO SERVANTS. 
 
 CHAPTER XIII. 
 
 INJURIES TO SERVANTS. 
 
 Injuries from the negligence op Fellow-Ser- 
 vants. — The liability of a railroad company to its 
 servants differs in important respects from its liabil- 
 ity to its passengers or to third parties. Its duty 
 to passengers who, under a contract for safe car- 
 riage, intrust themselves to its servants and vehi- 
 cles, about whose competency and sufficiency their 
 means of information must ordinarily be limited, is 
 measured by a severe rule. Its obligations to third 
 parties, between whom and itself there is no con- 
 tract or relation of privity, must be determined by 
 the pervading principle of social duty as well as of 
 the common law, — that every party, whether an 
 individual person or organized body must so use his 
 own property and manage his own affairs as not to 
 injure the equal rights of another. Acting through 
 agents, the company is responsible for their acts in 
 the course of their employment, whenever they fail 
 to fulfill its obligations to passengers in the one 
 case, or infringe on the rights of third parties in 
 the other. 
 
 Unlike passengers, a servant may become ac- 
 quainted with his fellow-servants, and with the im- 
 plements of his occupation, and has the means of 
 adopting precautions not ordinarily open to passen- 
 
INJURIES TO SERVANTS. 287 
 
 gers. Unlike third parties, a servant stands in a 
 relation of privity with the company. A contract 
 subsists between them, whose terms, express or im- 
 plied, declare their mutual obligations. The maxim, 
 respondeat superior, that the master is answerable 
 for the injuries of his servants to third parties, 
 while acting in his service, is the test of the mas- 
 ter's liability to persons between whom and himself 
 there is no privity of contract. These distinctions 
 are important in determining the liability of the 
 company to its servants receiving injury when em- 
 ployed in its service. The duty of the master to 
 his servant, to use reasonable care in providing him 
 with careful and competent fellow-servants, and his 
 liability for injuries to him through a neglect to use 
 such care in the employment of fellow-servants, 
 in the absence of any proof that the injured servant 
 was cognizant of the carelessness of his associates, 
 so as to induce the presumption that he took upon 
 himself the risk of such carelessness, necessarily 
 result from the first principles of the common law. 
 But the liability of a railroad company to its pas- 
 sengers and to third parties, extends further than 
 this. It is answerable to them for a want of the 
 continued application of such care and skill. It 
 cannot defend an action for an injury to a passenger 
 or to a stranger, on the ground that the servant was 
 a careful and competent person for the post. How- 
 ever careful and skillful he may generally be, it is 
 responsible for his negligence in the particular case. 
 Like any other master, it warrants to the public the 
 fidelity and good conduct of its agents in all mat- 
 
288 INJURIES TO SERVANTS. 
 
 ters within the scope of their agency. 1 But this 
 rule does not necessarily measure its responsibility 
 to its servants. 
 
 As already suggested, its relation to its passen- 
 gers rests on peculiar considerations of public pol- 
 icy which are not appropriate to its relation to its 
 servants. Third parties, who stand in no relation 
 of privity with it, and cannot be presumed to as- 
 sume any of the risks of its business, come necessa- 
 rily within the protection of the rule that the master 
 is answerable to a stranger for injuries committed 
 by his servants, while acting in the course of their 
 employment. Its duties to its own servants, when 
 not expressly stipulated, must be derived from its 
 implied contract with them. The duty of the com- 
 pany to indemnify the servant for injuries which 
 arise from the careless, negligent, or unskillful act of 
 other persons employed by it in the same business 
 or service, in the selection of whom it exercised 
 proper care, cannot reasonably be implied from the 
 contract of hiring. The servant when he accepts 
 the relation assumes with it all the natural and 
 ordinary risks and perils incident thereto, for which 
 he must be presumed to stipulate a proportion- 
 ate compensation ; and among these are such 
 as arise from the carelessness of his fellow-servants 
 in the same employment. Considerations of public 
 policy, which are the foundation of implied prom- 
 ises, are against the implication of a duty on the 
 part of the employer to answer to one servant for 
 
 1 Story on Agency, § 452. 
 
INJURIES TO SERVANTS. 289 
 
 the negligence of another in the same employment. 
 They are engaged in a common enterprise, in which 
 the safety of each depends much on the care and 
 skill with which every other performs his appropri- 
 ate duty. They may observe the conduct of each 
 other, give notice of any misconduct, incapacity, or 
 neglect of duty, and leave the service if the com- 
 mon employer neglects to take such precautions as 
 the safety of the whole may require. The doctrine 
 that the master is not liable to one servant for inju- 
 ries received from another in the same business or 
 service, tends to make all employed in it anxious, 
 watchful, and interested for the fidelity of each 
 other. And it is now generally accepted. 1 
 
 Applying these principles to a railroad com- 
 pany, where persons are employed by a com- 
 pany to perform the same or separate duties, all 
 tending to the accomplishment of one and the 
 same purpose — that of the rapid and safe trans- 
 mission of the trains, — one person so employed has 
 no remedy against the company for any injury 
 received by him through the careless, negligent, or 
 unskillful act of another engaged in the same ser- 
 vice. 2 And the fact that the injured servant is a 
 
 1 Priestley o. Fowler, 3 M. & W. 1 ; Wigmore v. Jay, 5 Exch. 354 ; Sey- 
 mour v. Maddox, 5 Eng. L. and Eq. 265; Brown v. Maxwell, 6 Hill, 594; 
 Williams v. Taylor, 4 Porter, 234; Walker v. Boiling, 22 Ala. 294; Cook v. 
 Parham, 24 id. 21 ; M'Daniel v. Emanuel, 2 Eich. 455 ; Camp v. Wardens of 
 Church of St. Louis, 1 La. An. 321. The master is in Scotland held liable for 
 such negligence. Dixon v. Ranken, 1 Am. Rail. Cas. 569. The rule stated in 
 the text has in this country been discountenanced by some judges, although 
 overruled by no court. C. C. and C. R. E. Co. v. Keary, 3 Ohio State, 219. 
 
 * Murray v. S. C. R. R. Co. 1 M'Mullen, 385 ; Farwell v. Boston and 
 Worcester R. E. Co. 4 Met. 49 ; Madison and Indianapolis E. E. Co. v. Ba- 
 
 20 
 
290 INJURIES TO SERVANTS. 
 
 minor does not vary his legal rights. 1 Thus where 
 the engineer on a train was injured while running 
 it, in consequence of the mismanagement of the 
 switch by the switch-tender, who was a careful and 
 trustworthy servant in his general character ; there 
 being no charge that the company had not used due 
 diligence in the selection of competent and trusty 
 servants, or furnished them with suitable means to 
 perform the service, the company was not responsi- 
 ble to the engineer. 2 
 
 con, 6 Ind. 205; Honner v. 111. Central R. R. Co. 15 111. 530; Hutchinson v. 
 York, Newcastle, <fcc, Railway Cos. 5 Exch. 343 ; Skip v. Eastern Cos. Rail- 
 way Co. 24 Eng. L. and Eq. 396 ; Hubgh •«. N. 0. R. R. Co. 6 La. An. 495 ; 
 Mitchelli;. Penn. R. R. Co., Am. Law Reg. (Oct. 1853) p. Ill; Shields v. 
 Yonge, 15 Geo. 349. 
 
 1 King v. Boston and Worcester R. R. Corp. 9 Cush. 112. 
 
 2 Farwell v. Boston and Worcester R. R. Corp. 4 Met. 49, 51. Shaw, C. J. : 
 "The general rule, resulting from considerations as well of justice as of pol- 
 icy is, that he who engages in the employment of another for the perform- 
 ance of specified duties and services, for compensation, takes upon himself the ■ 
 natural and ordinary risks and perils incident to the performance of such 
 services, and, in legal presumption, the compensation is adjusted accord- 
 ingly. And we are not aware of any principle which should except the 
 perils arising from the carelessness and negligence of those who are in the 
 same employment. These are perils which the servant is as likely to know, 
 and against which he can as effectually guard, as the master. They are 
 perils incident to the service, and which can be as distinctly foreseen and 
 provided for in the rate of compensation as any others. To say that the 
 master shall be responsible because the danger is caused by his agents, is 
 assuming the very point which remains to be proved. They are his agents 
 to some extent, and for some purposes ; but whether he is responsible, in a 
 particular case, for their negligence is not decided by the single fact that 
 they are, for some purposes, his agents. It seems to be now well settled, 
 whatever might have been thought formerly, that underwriters cannot excuse 
 themselves from payment of a loss by one of the perils insured against, on 
 the ground that the loss was caused by the negligence or unskillfulness of 
 the officers or crew of the vessel, in the performance of their various duties 
 as navigators, although employed and paid by the owners, and in the navi- 
 gation of the vessel, their agents. Copeland v. New England Marine Ins. 
 
INJURIES TO SERVANTS. 291 
 
 It is not responsible to a brakeman in its service 
 for an injury received by him in consequence of the 
 
 Co., 2 Met. 440-443, and cases there cited. I am aware that the maritime 
 law has its own rales and analogies, and that we cannot always safely rely 
 upon them in applying them to other branches of law. But the rule 
 in question seems to be a good authority for the point, that persons are not 
 to be reponsible, in all cases, for the negligence of those employed by them. 
 " If we look from considerations of justice to those of policy, they will 
 strongly lead to the same conclusion. In considering the rights and obliga- 
 tions arising out of particular relations, it is competent for courts of justice 
 to regard considerations of policy and general convenience, and to draw 
 from them such rules as will in their practical application best promote the 
 safety and security of all parties concerned. This is, in truth, the basis on 
 which implied promises are raised, being, duties legally inferred from a con- 
 sideration of what is best adapted to promote the benefit of all persons 
 concerned under given circumstances. 
 
 ****** * 
 
 " We are of opinion that these considerations apply strongly to the case in 
 question. Where several persons are employed in the conduct of one com- 
 mon enterprise or undertaking, and the safety of each depends much on the 
 care and skill with which each other shall perform his appropriate duty, 
 each is an observer of the conduct of the others, can give notice of any mis- 
 conduct, incapacity, or neglect of duty, and leave the service if the common 
 employer will not take such precautions, and employ such agents as the 
 safety of the whole "party may require. By these means, the safety of each 
 will be much more effectually secured, than could be done by a resort to the 
 common employer for indemnity in a case of loss by the negligence of each 
 other. Regarding it in this light, it is the ordinary case of one sustaining 
 an injury in the course of his own employment, in which he must bear the 
 loss himself, or seek his remedy, if he have any, against the actual wrong- 
 doer. 
 
 " In applying these principles to the present case, it appears that the 
 plaintiff was employed by the defendants as an engineer, at the rate of wages 
 usually paid in that employment, being a higher rate than the plaintiff had 
 before received as a machinist. It was a voluntary undertaking on his part, 
 with a full knowledge of the risks incident to the employment ; and the loss 
 was sustained by means of an ordinary casualty, caused by the negligence of 
 another servant of the company. Under these circumstances, the loss must 
 be deemed to be the result of a pure accident, like those to which all men, in 
 all employments, and at all times, are more or less exposed ; and like similar 
 losses from accidental causes, it must rest where it first fell, unless the plaintiff 
 has a remedy against the person actually in default ; of which we give no 
 opinion." 
 
292 INJURIES TO SERVANTS. 
 
 default of another brakeman in the same service, 
 although the latter be at the time of the injury the 
 acting conductor of another train. 1 A common 
 laborer, employed by the company on its road, who 
 while riding on a gravel train to his place of 
 labor with its consent, and not paying fare, suf- 
 fered an injury in a collision with a hand-car, 
 caused by the negligence of other servants of the 
 company, has no remedy against it. 2 A brakeman 
 has no right of action against the company where 
 he receives injury from being thrown, while the cars 
 are running at a dangerous speed, on a wood-pile 
 placed by other servants near the track. 8 The 
 servants on one train have no legal claim on the 
 company for injuries occasioned by a collision with 
 another of its trains through the carelessness of the 
 managers of the other train.* "Where the company 
 had a turn-table, with an iron bar attached for the 
 purpose of turning locomotives and cars, which 
 was operated by the plaintiff and ojher servants 
 of the company, he was denied the right to re- 
 cover damages for an injury, suffered from the 
 careless and improper management of the t same 
 by the other servants. 5 The plaintiff, a track- 
 man, employed as such to follow in a hand-car pas- 
 senger trains over a certain section of the track, 
 to make repairs and report defects in the same, being 
 injured while so engaged, through the negligence, 
 
 1 Hayes v. Western R. R. Corp. 3 Cush. 2*70. 
 
 2 Gillshannon v. Stony Brook R. R Corp. 10 Cush. 228. 
 
 3 Sherman v. Rochester and Syracuse R. R. Co., 15 Barb. 574. 
 
 4 Hutchinson v. Railway Co., 5 Exch. 343. 
 
 * Horner v. Illinois Central R. R. Co., 15 111. 560. 
 
INJURIES TO SERVANTS. 293 
 
 as lie claimed, of other servants of the company in 
 charge of a stake train which passed on the road in 
 the evening without lights, and at an unusual hour, 
 could not sustain an action against the company for 
 the injury. 1 Nor was it answerable to a laborer 
 injured on a gravel train through the carelessness of 
 the conductor or engineer by the " dumping" of one of 
 the cars while on his usual passage between his 
 boarding-place and his work. 2 
 
 This general doctrine has been applied to the 
 construction of the statutes which have been enacted 
 in England and the United States, giving to the 
 personal representatives of a deceased party who 
 was killed by the carelessness or willfulness of an- 
 other, a right to recover damages of the wrongdoer 
 whenever the death of the person shall be caused by 
 a wrongful act, neglect, or default, which is such that 
 if death had not ensued, the injured party would 
 have been entitled to recover damages for the injury. 
 Under such statutes the personal representatives are 
 without remedy against the company, where the fatal 
 injury was occasioned by the negligent or unskillful 
 act of a fellow-servant in the same employment. 8 
 
 1 Coon v. Syracuse and Utica R. R. Co., 6 Barb. 231 ; S. C, 1 Selden, 492. 
 
 2 Ryan v. Cumberland R. R. Co., 23 Penn. State, 384, two judges dis- 
 senting. It was considered in tbis last case that a warranty that one ser- 
 vant shall not be injured by the carelessness of another, implied a relation 
 of protection and dependence which does not subsist between the parties to 
 a contract of hiring. 
 
 3 Hutchinson v. R. Co., 5 Exch. 343 ; Wigmore v. Jay, 5 id. 354 ; Pater- 
 son v. Wallace, 28 Eng. L. <fe Eq. 48 ; Marshall v. Stewart, 33 id. 1 ; Sher- 
 man v. Rochester and Syracuse R. R. Co., 15 Barb. 674 ; M'Millan v. Saratoga 
 and Washington R. R. Co., 20 id. 449 ; Madison and Ind. R. R. Co. v. Bacon, 
 6 Ind. 205 ; ante, ch. xi. p. 262. 
 
294 injuries to servants. 
 
 Injuries eeom Defects oe the Road and its 
 Appointments. — The same principle determines the 
 liability of the company for injuries to a servant 
 from a defect in its machinery, engines, cars, tracks, 
 and other appointments of the road. It does not 
 warrant their absolute sufficiency, and is not respon- 
 sible for injuries arising from latent defects, or such 
 patent defects as the servant -was himself cognizant 
 of, and had not reported to its officers. While he 
 remains in its service informed of such defects, he is 
 presumed to take upon himself the risks incident 
 thereto. 1 Thus, the company is not responsible for 
 an injury to a person acting as fireman to a loco- 
 motive, caused by the breaking of the joint of a switch 
 rod, where the company had used ordinary care and 
 diligence to make its road sufficient for its purpose. 2 
 
 An engineer, to be entitled to recover of the com- 
 pany for an injury happening through defects in the 
 machinery or other appointments of the road, must 
 aver and prove actual notice to it of such defects. 
 They are matters which he is more likely to be 
 informed of than the company, and should have 
 reported to its officers. Thus, where the injury 
 occurred through a defect in the cow-catcher, and 
 in fences and cattle-guards along the track, whereby 
 the locomotive came in collision with cattle, and was 
 overthrown, the company was held not liable, to an 
 
 1 Hubgh v.' IS. 0. and C. R. R. Co. 6 La. An. 494 ; Mad River and Lake 
 Erie R. R. Co. v. Barber, 6 Ohio State ; Keegan v. Western R. R. Co. 4 Sel- 
 den, 176. 
 
 2 King v. Boston and Worcester R. R. Corp. 9 Cush. 112. 
 
INJURIES TO SERVANTS. 295 
 
 engineer who was injured by the collision, without 
 an averment and proof of notice to the company. 1 
 
 Limitations op the General Doctrine.' — While 
 the general doctrine here stated has uniformly re- 
 ceived the sanction of the courts by which it has been 
 passed upon, there are some limitations which have 
 either been suggested or received judicial affirmation. 
 
 Negligence op the Company in employing in- 
 competent Servants and providing improper 
 Machinery. — In the first place, it is generally 
 admitted that a master is responsible to a servant 
 for an injury he receives from the carelessness 
 or unskillfulness of a fellow-servant, when he 
 neglects to use reasonable care to protect him from 
 such danger by associating with him fellow-servants 
 who have the ordinary care and skill required for 
 the post. The master, it is well said, has no right to 
 expose his servants to unreasonable risks. 2 But the 
 
 1 M'Millan v. Saratoga and Washington R. R. Co. 20 Barb. 449 ; Mad 
 River and Lake Erie R. R. Co. v. Barber, 6 Ohio State. See Langlois v. 
 Buffalo and Rochester R. R. Co. 19 Barb. 364. 
 
 2 Hutchinson v. R. Co. 5 Exeh. 353 ; Skip v. Eastern Counties R. Co. 24 
 Eng. L. and Eq. 396 ; Albro v. Agawani Canal Co. 6 Cush. 75 ; Coon v. Utica 
 and Syracuse R. R. Co. 6 Barb. 243 ; Walker v. Boiling, 22 Ala. 294; Cook 
 v. Parham, 24 id. 21 ; Bassett v. Norwich and Worcester R. R. Co. (Superior 
 Court of Conn.) 19 Law Rep. (Feb. lSot), p. 55. Butler J. : — " It is doubt- 
 less true, as a legal presumption, and in fact, that engineers take the risk 
 attending their business into consideration when they are engaged in the 
 employment, and that higher wages are demanded and paid on that account ; 
 and that, therefore, a different rule should govern as between them and the 
 company, in relation to the negligence of other employees, from that which 
 governs as between the company and third persons ; and it may be true that 
 when the engineer is employed in immediate connection with another incom- 
 petent or negligent servant, whose capacity or conduct he may observe or 
 control, he is bound to report to his employers or leave the service ; and 
 
296 INJURIES TO SERVANTS. 
 
 master does not warrant to each servant the compe- 
 tency of his fellow-servants ; and in case of injury to 
 one by the other, the question, in determining the 
 master's liability, is not only whether the wrong- 
 doer was in fact incompetent for the service, but also 
 whether the master failed to exercise ordinary care 
 in employing him ; and both' the default of the serv- 
 ant and the want of ordinary care in the master, 
 must concur to render him liable for the injury. 1 
 
 The duty of the master to use reasonable care in 
 providing proper machinery, has also been applied 
 to railroad companies ; who are held responsible for 
 injuries to a servant from defects in it which were 
 known to the company. Thus, where a fireman was 
 injured by the explosion of the boiler of a locomotive 
 
 that if he does neither, he may properly be held to have acquiesced in the 
 -continued employment of the negligent servant, or to have voluntarily as- 
 sumed the additional risk attending such employment; but, in my judgment, 
 neither a contemplation of the risk by the servant, nor an opportunity to 
 observe the capacity and conduct of his fellow-servant should absolve the 
 company from all duty or liability to their employees. Engineers and 
 other servants should be holden to have contemplated and assumed the risks, 
 and only the risks, incident to running a road managed with ordinary care 
 and prudence, and run by other competent, steady employees ; and should 
 be further holden to have assumed the additional risk attending the em- 
 ployment and service of incompetent or intemperate persons, only in cases 
 where they have had a fair and reasonable opportunity to observe or know 
 that they were running such additional risk, and to remove it by remon- 
 strance, or avoid it by abandonment of the service. And the company 
 should be holden to the exercise of ordinary and reasonable care and pru- 
 dence in the selection of their engineers and other agents, and in watching 
 over them in the arrangement of their trains, and putting the necessary 
 force upon them, so that in business so dangerous as this, no unnecessary 
 risk be incurred by the employees by reason of unsafe arrangements or 
 want of watchfulness over those in their employ, or the employment of 
 incompetent persons." 
 
 1 Tarrant v. Webb, 18 C. B. 191 ; 86 E. C. L. ; SI Eng. L. and Eq. 281 ; 
 Mad River and Lake Erie R. R. Co. v. Barber, 6 Ohio State. 
 
INJURIES TO SERVANTS. 29*T 
 
 engine, the defective and dangerous condition of 
 which had been made known to the company by the 
 reports of the engineer on several occasions, which 
 were entered in its books kept for that purpose, and 
 there was no proof that the fireman knew the condi- 
 tion of the boiler and therefore took the risk upon 
 himself, it was held that the company was responsi- 
 ble for the injury which resulted from its actual 
 negligence or misfeasance, and that the principle 
 that the master is not responsible for injuries inflicted 
 on one servant by another in the same business, is 
 applicable only where the injury complained of hap- 
 pens without any actual fault or misconduct of the 
 master, either in the act which caused the injury, or 
 in the selection or employment of the agent by 
 whose fault it happens. 1 But where the company 
 has defective machinery or a careless and unskillful 
 servant in its employ, whereby another servant is 
 injured, if the injured servant knew or had a rea- 
 sonable opportunity to inform himself of such defect 
 in the machinery, or of the carelessness and unskill- 
 fulness of his fellow-servants, or of any other defi- 
 ciency in the appointments of the road, he is to be 
 presumed, by remaining in its employ, to accept the 
 risks arising therefrom, and will be without remedy 
 against the company. 2 
 
 1 Keegan v. Western R. R. Co. 4 Selden, 175 ; Mad River and Lake Erie 
 R. R. Co. •«. Barber, 6 Ohio State ; Perry v. Marsh, 25 Ala. 659 ; PaterBon v. 
 Wallace, 28 Eag. L. and Eq. 48 ; Marshall v. Stewart, 33 id. 1 ; Noyes v. 
 Smith (Supreme Court of Vermont, Sept. Term, 1856), 19 Law Rep. (Dee. 
 1856), p. 469. 
 
 a Mad River and Lake Erie R. R. Co. 6 Ohio State; Bassett v. Norwich 
 and Worcester R. R. Co. (Superior Ct. of Conn.); 19 Law Rep. (Feb. 1857), 
 
298 INJURIES TO SERVANTS. 
 
 Negligence op the injured servant. — If the 
 servant has, by his own carelessness, substantially 
 contributed to the injury, or might by the exercise 
 of ordinary care have avoided it, he cannot recover 
 of the company, although but for such negligence 
 he might, on account of its default in not exercising 
 reasonable care to provide proper machinery and 
 servants, have had a remedy against it. 1 Thus, 
 where a brakeman on a gravel train leaves it of his 
 own accord, and on his own business, while it is 
 proceeding to its destination, and then in attempt- 
 ing to get upon the same train on its return, while 
 it is running at a rate which renders such an 
 attempt dangerous, seizes upon the rim of a gravel- 
 box, which breaks through a defect of material, 
 whereby he falls upon the track, and is run over by 
 the train, he cannot recover of the company for the 
 injury received in this manner. 2 
 
 Injurs" to a servant not at the time in the 
 master's service. — Another limitation has been 
 suggested, that the master is responsible for an 
 injury to a servant occasioned to him by the act of 
 another servant, when the servant injured was not 
 at the time of the injury acting in the service of 
 his master. In such a case, the servant injured is 
 
 551 ; Williams v. Taylor, 4 Porter, 234 ; Perry v. Marsh, 25 Ala. 659 ; Kee- 
 gan v. Western R. R. Co. 4 Selden, 175 ; Coon v. Utica and Syracuse R. R. 
 Co. 6 Barb. 241 ; Priestley v. Fowler, 8M.AW.5; Skip v. Eastern Coun- 
 ties R. Co. 24 Eng. L. and Eq. 396. 
 
 1 Brown v. Maxwell, 6 Hill, 592 ; Hutchinson o. R. Co., 5 Exch., 350 ; 
 Paterson v. Wallace, 28 Eng. L. and Eq. 48. 
 
 2 Timmons v. Central Ohio R. R. Co., 6 Ohio State, 105. 
 
INJURIES TO SERVANTS. 299 
 
 substantially a stranger, and entitled to all the 
 privileges he would have had if he had not been a 
 servant. 1 
 
 Injuries to slaves. — The general doctrine is, in 
 Georgia, held not applicable to slaves, the owner of 
 whom can recover of an employer to whom he has 
 hired them, when they are injured by the carelessness 
 of other persons in the same business. This restric- 
 tion was regarded as indispensable to the welfare of 
 the slave, who, from his condition, can have no con- 
 trol or influence over his fellow-laborers, cannot 
 refuse to perform a dangerous service, is subject to 
 the will of his employer, and cannot leave him when 
 he chooses. 2 
 
 When the relation of eellow-servant sub- 
 sists. — Another limitation, which is at once reason- 
 able and sustained by respectable authority, is that 
 the injured party, to be excluded from a right to 
 recover damages of "the master for the injury in- 
 flicted by another servant, must stand in the rela- 
 tion of co-servant to the negligent or incompetent 
 servant from whom he received it. If he does not 
 stand in that relation, he is, so far as that servant is 
 concerned, a stranger to the master, and entitled to 
 the protection of the maxim — respondeat superior. 
 He assumed the risks of the service in which he is 
 
 1 Hutchinson v. R. Co., 5 Exch. 852. 
 
 * Scudder v. Woodbridge, 1 Geo. 195. No such exception, however, is 
 made in Alabama. Walker v. Boiling, 22 Ala. 294 ; Cook v. Parham, 24 id. 
 21. 
 
300 INJURIES TO SERVANTS. 
 
 employed when he entered upon it, and among 
 them those arising from the default of others em- 
 ployed in the same service ; but he is not to be pre- 
 sumed to have assumed the risks of another distinct 
 business or employment. Persons may be employed 
 by a company who exercise a distinct employment, 
 and cannot be considered as its servants. Such are 
 its legal advisers, its financial agents, or its con- 
 tractors, who are in no sense the co-servants of the 
 conductor, the engineer, and the brakeman. There 
 are other classes of persons in its employ, and 
 under the immediate supervision of its superior 
 officers, who cannot be said to be the co-servants of 
 the employees who operate the trains. Such are 
 the clerks in its offices, its ticket-agents, or civil 
 engineers who are surveying its routes. If these 
 classes of -persons, while passing in the trains, are 
 injured through the negligence of the employees in 
 charge of them, the principles of the law and of 
 public policy would not excmde them from recov- 
 ering damages of the company. Their employment 
 is so distinct and remote in the nature of its duties 
 from that of operating the trains, that they could 
 not be presumed to have assumed the risks aris- 
 ing from the negligence of those in charge of them. 
 Their means of informing themselves of the charac- 
 ter of such servants are little better than those of 
 the public, while their control over them is no 
 greater. 1 
 
 1 See Story on Agency, § 453 (/) ; 1 Parsons on Cont., eh. v., pp. 86-93. 
 In Fanvell v. Boston and Worcester R. R. Corp., 4 Met 60, there is some 
 
INJURIES TO SERVANTS. 301 
 
 The application of this distinction has created 
 some conflict in determining what are distinct em- 
 ployments. Thus, where a bridge-builder, employed • 
 by the company to build a bridge over the railroad 
 at a creek, was directed by the company to pro- 
 ceed in its cars to a certain place, and there assist 
 in loading timber for the bridge, and was injured 
 by the careless management of the train by the 
 servants of the company having charge of its run- 
 ning ; it was considered in Indiana, that the bridge- 
 builder and the servants by whose negligence the 
 injury was caused, had no common duty to per- 
 form in respect to which the injury happened ; 
 that the injured party was not at the time iu a 
 position in which it could be implied that he con- 
 tributed to the injury ; that he was not a co-servant 
 of the operatives in charge of the train, and was 
 entitled to the rights of a passenger against the 
 company. It was noted that the injury did not 
 occur in loading or unloading the timber ; in which 
 service the bridge-builder and those in charge 
 of the train would have been co-servants, and as 
 such, each would have no remedy against the com- 
 pany for injuries received from the default of 
 another. 1 
 
 So, in the same State, where a laborer was em- 
 ployed by the company upon one part of the road, 
 
 language which seems not to be in harmony with this distinction, but the 
 rule propounded by the court rather sustains than conflicts with it. 
 1 Gillenwater v. Madison and Indianapolis R. R. Co., 5 Ind. 339. 
 
302 INJURIES TO SERVANTS. 
 
 to load and unload gravel and distribute it upon 
 the road, at some distance from his hoarding-place, 
 •and by agreement he was to he regularly carried 
 between his place of labor and his boarding-house, 
 the company was held liable for an injury to him 
 received in a collision with a passenger train, caused 
 by the negligence of the engineer of the locomotive 
 drawing the car in which he was carried. 1 
 
 1 Fitzpatrick v. New Albany and Salem R. R. Co., 1 Ind. 436 ; Davi- 
 son, J., after noticing Gillen water v. Madison and Indianapolis R. R. Co., 
 5 Ind., 339, said, "That case and the one at bar are, in point of fact, 
 to some extent dissimilar ; but each is plainly subject to the same rule 
 of decision. Here, the plaintiff, though a servant of the company, was 
 in no respect connected with the department of service in which the en- 
 gineer was engaged, not more so than was Gillenwater. His employment — 
 that of loading and unloading the cars — at once shows that he had no con- 
 nection or control in the movement of the train. The plaintiff could not, 
 therefore, have contributed to produce the injury. He was not, it is true, a 
 mere passenger ; his travel on the cars was an incident to the business in 
 which he was employed ; but under an agreement with the defendants, he 
 was to be regularly conveyed to and from his work. This, it seems to us, 
 involves an implied engagement that thepfcpould convey him as safely and 
 securely as if he really had been a passenger in the ordinary sense of the 
 term. Indeed, it is averred in the complaint, and admitted in the demurrer, 
 that he was received on board the cars as a passenger. 
 
 " As a general rule, a person in the management of his business, whether 
 he does it himself or acts through agents, must so conduct that business as 
 not to produce injury to others. We perceive no valid reason why this rule 
 should not apply to the present case. The engineer was the defendants' 
 agent, and it is an admitted fact that the injury was alone produced by the 
 gross negligence and unskillful conduct of that agent. True, there is author- 
 ity for the position that ' when a party contracts to perform services, he 
 takes into account the dangers and perils incident to the employment ;' but 
 this can only be intended to mean such ' dangers and perils ' as necessarily 
 attend the business when conducted with ordinary care and prudence. He 
 cannot be presumed to have contracted in reference to injuries inflicted on 
 him by negligence. The nature of the employment required the plaintiff to 
 ride on the cars, and it seems to follow that the defendants were in duty 
 bound to furnish a careful and skillful engineer to manage the train. In 
 
INJURIES TO SERVANTS. 303 
 
 There are decisions in other States conflicting with 
 those in Indiana in the application of this distinction. 
 Thus, in Massachusetts, where a common laborer 
 employed in repairing the company's road-bed at a 
 place several miles from his residence, was accus- 
 tomed, with the permission of the company and for 
 mutual convenience, to ride to his place of labor on 
 a gravel train of the company without paying com- 
 pensation, and having no right under any contract 
 with it to be so conveyed, he was held to be without 
 remedy for an injury received, while so riding on the 
 gravel-train, through the negligence of its servants 
 having charge of it. 1 
 
 this it is conceded they have failed, and the result is a serious injury to the 
 plaintiff, -who has been guilty of no wrong. He is evidently entitled to 
 recover, unless it be assumed that the defendants were not bound to make 
 provision for his safe and secure conveyance ; and such an assumption, in 
 view of the facts of this case, would, in our opinion, conflict with the plain- 
 est principles of justice." 
 
 1 Gillshannon v. Stony Brook R. R. Corp. 10 Cush, 228. Dewey, J. : " If 
 the relation existing between tjfcse parties was that of master and servant, 
 no action will lie against the defendants for an injury received by the 
 plaintiff in the course of that service, occasioned by the negligence of a fel- 
 low servant Farwell v. Boston and Worcester Railroad, 4 Met. 49 ; Hayes 
 v. Western Railroad, 3 Cush. 2'70. 
 
 " It was attempted on the argument for the plaintiff to take the case out 
 of the rule stated in those cases, upon the ground that the nature of the em- 
 ployment of these servants was different, the plaintiff being employed as a 
 laborer in constructing the railroad bed, and not engaged in any duty con- 
 nected with running the trains, and so not engaged in any common enter- 
 prise. The case of Albro v. Agawam Canal Co., 6 Cush. 75, seems to be 
 adverse to these views, and goes strongly to sustain the defence. 
 
 " It was also urged that the plaintiff was not in the employment of the 
 defendants at the time the injury was received, or that he might properly 
 be considered as a passenger, and the defendants, as respects him, were car- 
 riers for hire. But as it seems to us, in no view of the case can this action 
 be maintained. If the plaintiff was by the contract of service to be carried 
 by the defendants to the place for his labor, then the injury was received 
 
304 INJURIES TO SERVANTS. 
 
 So in Pennsylvania, where one of the laborers on 
 the railroad was injured by the "dumping" of the car 
 through the carelessness of the conductor or engineer 
 of a gravel-train, while on their usual passage be- 
 tween their lodgings and their place of work — the 
 company was held not to be liable for the injury. 1 
 
 But it is not necessary that the employees of the 
 company should perform precisely the same services 
 in order to be co-servants, and as such to be without 
 remedy against it fo* the default of each other. 
 Thus, the company is not responsible to the engineer 
 for injuries which he receives from the negligence of 
 the switch-tender, notwithstanding their duties are 
 dissimilar, and they are only occasionally in proximity 
 to each other. Their different duties and services 
 are designed for the same purpose, and tend to its 
 accomplishment, to wit, the quick and safe transmis- 
 sion of the trains in a given direction. The con- 
 nection between the different services is close and 
 
 * 
 
 while engaged in the service for which he was employed, and so falls within 
 the ordinary eases of servants sustaining an injury from the negligence of 
 other servants. If it be not properly inferable from the evidence that the 
 contract between the parties actually embraced this transportation to the 
 place of labor, it leaves the case to stand as a permissive privilege granted 
 to the plaintiff, of which he availed himself, to facilitate his labors and ser- 
 vice, and is equally connected with it, and the relation of master and servant, 
 and therefore furnishes no ground for maintaining this action. How does 
 this case differ from that suggested at the argument by the counsel for the 
 defendants, who supposed a case where the business for which the party is 
 employed, is that of cutting timber, or standing wood, and the servant receives 
 an injury in his person on the way to the timber-lot, by the overturning of 
 the vehicle in which he is carried, by the negligence or careless driving of 
 another servant ? There is no liability on the part of the master in such a 
 case." 
 
 1 Ryan v. Cumberland Valley R. E. Co., 23 Penn. State, 384. 
 
INJURIES TO SERVANTS. 305 
 
 immediate, and the risk of injuries which the one 
 may inflict on the other, may be fairly presumed to 
 be taken into consideration by the employee in en- 
 tering the service of the company. It may not be 
 easy to state the principle which will distinguish in 
 advance one department of service from another, so 
 that the employees in one are not to be considered 
 the co-servants of persons employed in another ; but 
 
 the distinction itself cannot well be denied. 1 
 
 « 
 
 Injuries arising prom the Negligence op a 
 Superior Servant. — Another limitation has been 
 admitted in Ohio, where the general doctrine is 
 received. According to the decisions in that State, 
 where an employer places one person in his employ 
 under the direction of another, also in his employ, 
 such employer is liable for injury to the person 
 placed in the subordinate position, by the negligence 
 of his superior. The company, having placed the 
 engineer in its empldy under the control of the 
 conductor who directed the movements of the trains, 
 was held liable to the engineer for an injury to him 
 occasioned by the negligence of the conductor while 
 they were both engaged in their respective employ- 
 
 1 See Farwell v. Boston and Worcester R. R. Corp. 4 Met, 60 ; Gillen- 
 water v. Madison and Indianapolis R. R. Co., 5 Ind. 339 ; Coon v. Syracuse 
 and Utica R. R Co., 1 Selden, 495, per Gardner, J. ; S. C. 6 Barb. 242. 
 
 It has been considered that if one company owns the road and is obli- 
 gated to keep it in running order, taking toll, and another company runs 
 engines and cars over it, paying toll, and receiving compensation from the 
 passengers, an engineer of the last company would have an action against 
 the first for an injury to him through the carelessness of a switch-tender 
 employed by the first. Farwell v. Boston and Worcester R. R. Co., 4 Met, 61. 
 
 21 
 
306 INJURIES TO SERVANTS. 
 
 ments. And the same rule was applied where the 
 brakeman was injured through the fault of the con- 
 ductor or superintendent. The prominent consider- 
 ations which induced this limitation were, that there 
 is an obligation on the company implied in the con- 
 tract of hiring, to superintend and control with care 
 and skill the dangerous force it puts in operation, in 
 the discharge of which the conductor is its imme- 
 diate representative, standing in its place, whose 
 default must be considered as its default ; and that 
 between the conductor exercising authority over all 
 persons connected with the train, and a brake- 
 man or engineer subject to that authority, there is 
 no common participation of duties, admitting that 
 mutual supervision which the general doctrine is 
 designed to encourage. By this view, the implied 
 undertaking of the company is not merely to use 
 ordinary care and skill in the employment of its 
 superior agents, but to warrant their competency 
 and fidelity, and the conti^led exercise of those 
 qualities at all times. 1 
 
 This limitation is not adopted in Massachusetts. 
 The proprietors of a manufacturing establishment 
 were held not responsible to an operative in their 
 employ for an injury to her, by the filling with gas 
 of the room where she worked, brought about by 
 the gross negligence and want of skill of the super- 
 intendent who hired and discharged overseers of 
 
 ' Little Miami R. R. Co. v. Stevens, 20 Ohio, 415, Spalding, J., dissent- 
 ing. See 1 West. Law Journ. 369; 13 Law Rep. 74; C. C. and C. R. R. 
 Co. v. Keary, 3 Ohio State, 201. In this last case Warden, J., denied the 
 general doctrine which exempts the master from liability to a servant for 
 injuries received by him, through the negligence of a fellow-servant. 
 
INJURIES TO SERVANTS. 307 
 
 rootiio, by ■whom the operatives were hired and dis- 
 charged. The operative and the superintendent 
 were considered fellow-servants, inasmuch as they 
 were both servants of the same master, had the same 
 employer, were engaged in the accomplishment of 
 the same general object, were acting in one common 
 service, and derived their compensation from the 
 same source. 1 This limitation is also rejected in 
 New York, 2 and in Pennsylvania. 8 
 
 Negligence of the Company as distinct erom 
 the Negligence oe its Servants. — The liability of 
 the master for an injury to his servant through his 
 own negligence, follows from the first principles of 
 the law. The view has been taken, that if the mas- 
 ter employs a general managing agent or superin- 
 tendent with authority to employ or discharge 
 servants, such managing agent is to be treated as 
 standing in his place: his omissions are to be re- 
 garded as the master's omissions, and his knowl- 
 edge as the master's knowledge. As the master 
 is bound, to use reasonable care to associate with 
 his servant careful and competent fellow-servants, 
 it has been considered that he cannot relieve himself 
 of this duty by the appointment of a general man- 
 ager or superintendent ; and if he devolves it on 
 another, he is responsible for its faithful discharge. 
 
 1 Albro t>. Agawam Canal Co. 6 Cush. 75, See Hayes v. Western R. R. 
 Corp. 3 Cush. 270 ; Gillshannon v. Stony Brook R. R. Corp. 10 id. 228 ; 
 see Honner v. TO. Cent R. R. Co. 15 111 552. 
 
 a Coon v. Utica and Syracuse R. R. Co. 6 Barb. 238. See Sherman v. 
 Rochester and Syracuse R. R. Co. 16 id. 574. 
 
 3 Ryan v. Cumberland R. R. Co. 23 Penn. State, 386. 
 
308 INJURIES TO SERVANTS. 
 
 It was therefore held in Alabama, that the owner 
 of a boat is responsible for injuries to one servant 
 through the habitual negligence of the engineer, 
 which was known to the captain, who having the 
 power, neglected to discharge him. 1 
 
 As a master is responsible to his servant for inju- 
 ries from his own negligence, the question occurs 
 whether there are any defaults of a corporation 
 which are to be regarded as its own defaults, for 
 which it is responsible to a servant in distinction 
 from the defaults of its servants, for which it would 
 not be responsible to a fellow-servant. As the cor- 
 poration does its business through agents, it is diffi- 
 cult to charge it directly with negligence in distinc- 
 tion from the negligence of its agents ; and if this 
 can be done, it must be by a default committed in 
 its corporate capacity. The adoption and publica- 
 tion of rules and regulations for a railroad, when not 
 in conflict with the charter, have been considered in 
 New York as corporate acts.* But if injuries have 
 resulted to a servant through such regulations which 
 he must be presumed to have known when he en- 
 tered its service, he cannot recover. It would be 
 otherwise, it seems, if an order of the directors in 
 the particular case, unknown to the servant, had 
 
 ' Walker v. Boiling, 22 Ala. 294. But see Cook v. Parham, 24 id. 21 ; 
 1 Parsons on Cont. 529. This doctrine is narrower than the one in Ohio, 
 which embraces all injuries happening through the default of a superior 
 agent, whether he can discharge and employ the servants or not. But it is 
 in conflict with decisions in Massachusetts, and New York, which do not 
 make the employer liable in such cases. Albro v. Agawam Canal Co. 6 
 Cush. 75; King v. Boston and Worcester R. R. Corp. 9 id. 112; Coon v. 
 Utica and Syracuse R. R. Co. 6 Barb. 238. 
 
INJURIES TO SERVANTS. 309 
 
 occasioned the injury. 1 In a subsequent case in 
 New York, it was considered that the company, as 
 a corporate body, cannot be guilty of running its 
 trains at a dangerous speed, except by a formal reso- 
 lution of its board of directors duly convened, direct- 
 ing the act to be done. For an omission to do what 
 its duty to the community and persons in its employ 
 required, it might be guilty without such a formal 
 act, as then the gist of the complaint would be the 
 culpable omission of the board to take the requisite 
 action. But where an affirmative act is complained 
 of, as in the case of running the trains at a danger- 
 ous speed, the only way in which it can be made 
 liable in an action on the case, it was considered, is 
 either by its corporate action through the board of 
 directors, or for the acts of its agents on the principle 
 of respondeat superior? The company was held lia- 
 ble to a servant for an injury arising from a defect in 
 the boiler of a locomotive, which the referee found 
 had been reported to the company on several occa- 
 sions, and entered on its books kept for that purpose. 8 
 
 1 Coon v. Utica and Syracuse R. R. Co. 6 Barb. 240 ; 1 Am. Rail. Cas. 
 568, notes. 
 
 5 Sherman v. Rochester and Syracuse R. R. Co. 15 Barb. 594. 
 
 a Keegan v. Western R. R. Co. 4 Selden, 175. But see King v. Boston 
 and Worcester R R. Corp. 9 Cush. 112. Fletcher, J. : — "But the plaintiff 
 further claims to maintain his action on the ground that the injury to the 
 plaintiff was caused by a defect in the original construction of the road, 
 and that the defendants are liable for the consequences of such a defect. It 
 is maintained for the plaintiff that the defendants are bound to furnish a 
 safe road, and that they are liable for injuries happening in consequence of 
 a defective road. It is not necessary, at this time, to consider particularly 
 this position. As a corporation can act only through the agency of some 
 individual person or persons, a question has sometimes been made, as to 
 
310 INJURIES TO SERVANTS. 
 
 what particular officers or persons should be considered as the corporation 
 itself, as distinct from the servants of the corporation, for the purpose of 
 settling what should be considered as the neglect of the corporation itself, 
 and not of its servants. I am not aware that there has been any direct 
 adjudication upon this point. But, assuming that it is correct, as a general 
 principle, that the responsibility as to the sufficiency of the road rests on the 
 defendants themselves, still, their obligation, so far as respects those in their 
 employment, would not extend beyond the use of ordinary care and dili- 
 gence, and they would be held responsible only for the want of ordinary care 
 and diligence. If a corporation itself should be held responsible to its serv- 
 ants, that the road, when first used, was safe and sufficient, yet keeping the 
 road in proper repair afterwards, would seem to be the work of servants or 
 laborers, as much as any other part of the business of the corporation." See 
 Honner v. 111. Cent. R. R. Co. 15 111. 632. 
 
INJURIES TO PROPERTY BY FIRE. 311 
 
 CHAPTER XIV. 
 
 INJURIES TO PROPERTY BY FIRE. 
 
 The buildings, fences, or other combustible mate- 
 rial lying near the track, are sometimes destroyed 
 by fire, communicated by sparks from the engines 
 while running on the track. The liability of the 
 company for such injuries, irrespective of statute, 
 will now be considered. 
 
 Liability at Common Law for Injuries arising 
 from Negligence. — An action does not lie at com- 
 mon law for the reasonable use of one's right, though 
 it may be to the injury of another. Besides many 
 other cases, this rule has been applied where the fire 
 which one has kindled on his own premises for a 
 lawful purpose, has communicated to the land of 
 another ; and the person starting the fire on his own 
 premises is not liable for the injury thereby caused 
 without proof of negligence in its management. 
 But a party is responsible for the injury to another 
 which results from the negligent, unskillful, and 
 improper exercise of his right. 1 
 
 1 Clark v. Foot, 8 Johns. 329 ; Stuart v. Hawley, 22 Barb. 619 ; Bachel- 
 der v. Heagan, 18 Maine, 32 ; see Panton v. Holland, 17 Johns. 92; Livings- 
 ton v. Adams, 8 Cowen, 175; Thurston v. Hancock, 12 Mass. 220. 
 
312 INJURIES TO PROPERTY BY FIRE 
 
 A railroad company, being authorized to run its 
 engines on its track in the ordinary and proper 
 manner, is bound in the exercise of that right to use 
 reasonable care to prevent injuries to others, and is 
 responsible for injuries to their property caused 
 by its negligence, or a want of due care and skill, 
 whether it has appropriated under statute authority 
 any of their property or not. Its liability at com- 
 mon law for such injuries to landowners is not exclu- 
 ded by the special remedy for the assessment of 
 damages ; because the tribunal appointed to assess 
 them, being bound to presume that the company 
 would execute its powers in a lawful and proper 
 manner, could not take into consideration injuries 
 arising from negligence, and award damages for 
 them. 1 But the company is not liable for injuries 
 to the property of others, by fire communicated from 
 its engines while they are being operated in a proper 
 manner, and with reasonable care and skill. It is 
 authorized by its charter to propel locomotives by 
 steam on the land lawfully appropriated for its pur- 
 poses ; and, like any other proprietor of the soil, is 
 not responsible for injuries incidentally resulting to 
 others in the reasonable exercise of its right. If, in 
 conducting its lawful operations as a common carrier, 
 it uses proper precautions to prevent injuries by the 
 issuing of sparks from its engines, which are thrown 
 off in the reasonable use of its right to propel vehi- 
 
 1 Ante, ch. viii. p. 169 ; ch. x. p. 223. Hnyett v. Phil, and Reading R. 
 R. Co., 23 Penn. State, 373; Sunbury and Erie R. R. Co. v. Hummell, 27 
 id. 99. 
 
INJURIES TO PROPERTY BY FIRE. 313 
 
 cles by steam, it is not responsible for injuries which 
 result therefrom, to property along its track. The 
 suggestion, which has been occasionally pressed, that 
 a greater liability for consequential injuries should 
 be exacted of railroad companies than of other ad- 
 joining owners, for the reason that their rights 
 originate in legislative grant, and they conduct a 
 business of peculiar danger, the injuries arising from 
 which may be more difficult to prove than in ordi- 
 nary cases, — has not met with judicial approval. 1 
 Thus, while the locomotive was drawing a train of 
 cars on the track, some sparks from the smoke-pipe 
 passed directly therefrom to the roof of the plain- 
 tiff's building, standing eighteen inches from the 
 side, and twenty-six feet from the middle of the road, 
 whereby the building, without any negligence, but 
 in the exercise of due care and skill on the part of 
 the company, was set on Are and consumed it : was 
 held not liable for the injury. 2 
 
 1 Phil, and Reading R. R. Co. v. Yeiser, 8 Barr, 366 ; Chapman v. At- 
 lantic and St. Lawrence R. R. Co., 37 Maine, 92 ; Rood v. N. Y. and Erie 
 R. R. Co., 18 Barb. 80. Whether the assessment of damages to parties 
 injured by the construction of the railroad should include the risk of fire — 
 which may be communicated to their property from the engines without 
 fault of the company — as a distinct item for damages, is not settled. It was 
 held not proper to be included in the assessment in Sunbury and Erie R. R. 
 Co. v. Hummell, 27 Penn. State, 99 ; Somerville and Eaton R. R. Co., 2 
 Zabris. 313, per Ogden, J. But see Chapman v. Atlantic and St. Lawrence 
 R. R. Co., 37 Maine, 92; Webber „. Eastern R. R. Co. 2 Met. 147; Phil, 
 and Reading R. R. Co. v. Yeiser, 8 Barr, 366 ; Rood v. N. Y. and Erie R. 
 R. Co., 18 Barb. 84 ; Somerville and Easton R. R. Qo. v. Doughty, 2 Zabris. 
 502, per Nevius, J. The risk of accidental fires, it would seem, could only 
 be considered in its effect on the market value of the property. 
 
 a Burroughs v. Housatonio R. R. Co., 16 Conn. 124. 
 
314 INJURIES TO PROPERTY BY EIRE. 
 
 The construction of the railroad before any build- 
 ings are erected on the adjoining land, does not ex- 
 empt the company from the duty to use ordinary care 
 to prevent iDJury by fire to those subsequently erected. 
 One in the lawful use of his property may expose it 
 to accidental injury from the lawful acts of others, and 
 still not lose his remedy against them for injuries 
 caused by their culpable negligence. The owner of 
 land adjoining the track of a railroad may lawfully 
 build thereon, though the situation be one of ex- 
 posure and hazard, and nevertheless be entitled to 
 protection against the negligent acts of the company 
 by which his buildings are destroyed. 1 
 
 Burden oe Proof. — As negligence is the gist of 
 the action against the company for injuries received 
 from it while exercising its lawful right to conduct 
 its trains, the burden of proof is on the plaintiff to 
 prove it. The fact of injury suffered by the plaintiff 
 in consequence of the exercise of a right by the 
 defendant, does not raise the presumption of negli- 
 gence, except in some peculiar cases, as in actions 
 against innkeepers and common carriers, which are 
 made exceptions to the general rule on grounds of 
 public policy. 2 Hence, negligence is not to be pre- 
 sumed as a conclusion of law from the burning of a 
 party's house or other property by sparks commu- 
 nicated by the company's engines while being pro- 
 
 1 Cook v. Champlain Transportation Co., 1 Denio, 91 ; see Burroughs v. 
 Housatonio R. R. Co., 15 Conn. 133. 
 
 ! Bachelder v. Heagan, 18 Maine, 32 ; Stuart v. Hawley, 22 Barb. 619. 
 
INJURIES TO PROPERTY BY FIRE. 315 
 
 pelled on its track. 1 But, in connection with other 
 circumstances, it may be inferred from the injury, 
 by the jury, as a matter of fact. Thus, where the 
 cars had been running a long time without doing 
 damage, it was held that when the plaintiff shows 
 damage resulting from the defendant's act which, 
 with the exercise of proper care, does not ordi- 
 narily produce damage, he makes a prima facie case 
 of negligence, which cannot be repelled but by 
 proof of care, or of some extraordinary accident 
 which renders care useless. 2 So, where a house 
 was set on fire by sparks from a locomotive en- 
 gine, and there was evidence that the weather 
 was very dry and windy at the time, and that 
 sparks were thrown from the engines to a great 
 distance, and also set fire to several fields and 
 fences near the same time and place, although the 
 company gave evidence showing that all its en- 
 gines were in good order, and provided with good 
 spark arresters, — it was held, to be the province of 
 the jury to decide whether this was sufficient evidence 
 of carelessness, and erroneous to direct a verdict for 
 
 1 Phil, and Reading R. R. Co. v. Yeiser, 8 Barr, 366 ; Rood v. N. Y. 
 and Erie R. R. Co., 18 Barb. 85 ; Herring v. Wilmington and Raleigh R. R. 
 Co., 10 Iredell, 402 ; Aldridge v. Great Western R. R. Co., 3 M. & G. 515 ; 
 42 E. C. L. 272. 
 
 3 Ellis v. Portsmouth and Roanoke R. R. Co., 2 Iredell, 188. But Bee 
 Herring v. Wilmington and Raleigh R. R. Co., 10 id. 402. When the fact 
 of injury by fire communicated from the engine, and the manner in which it 
 is communicated, are proved, it is for the jury to determine whether the com- 
 pany is chargeable with negligence ; and it is immaterial whether the evi- 
 dence comes from the plaintiff or the defendant. M'Cready v. S. C, R. R. 
 Co., 2 Strob. 356. 
 
316 INJURIES TO PROPERTY BY EIRE. 
 
 the defendants. 1 Where the declaration alleged 
 that the plaintiffs stack, standing near the track, 
 was destroyed by fire through the careless, negli- 
 gent, and improper management of the engine by 
 the servants of the company, and a case stated for 
 the opinion of the court, found that the engine from 
 which the sparks that set fire to the stack issued, 
 was such as was usually employed on railways, and 
 was used at the time in the ordinary manner, and 
 for the purposes authorized by the incorporating 
 act, — the court refused, on the one hand, to infer 
 negligence from the facts as a conclusion of law, so 
 as to direct a verdict for the defendant, or, on the 
 other, to presume its absence, so as to direct a non- 
 suit, but regarded it as a proper question for the 
 jury. 2 
 
 The duty of the company to use reasonable care 
 to prevent injury to others in the exercise of its own 
 rights, renders it incumbent upon it to avail itself of 
 the precautions at its command to prevent such 
 injury ; and its omission to use them is a fact which 
 may be taken into consideration by the jury in 
 determining the question of negligence. For this 
 purpose, testimony is admissible to show that 
 other well-conducted companies are accustomed to 
 use precautions which the defendants neglected. 8 
 Where it was proved that the property was de- 
 stroyed by fire communicated from the engine of 
 
 1 Huyett v. Phil, and Reading R. R. Co., 23 Penn. State, 373. 
 
 2 Aldridge v. Great Western R. R. Co., SI.AG. 515 ; 42 E. C. L. 2*72. 
 s Cook v. Champlain Transportation Co., 1 Denio, 91. 
 
 ..J 
 
INJURIES TO PROPERTY BY EIRE. 317 
 
 the company, and the plaintiff had given evidence 
 to prove that the damage by fire thus communi- 
 cated could have been prevented by the use of cer- 
 tain appliances, or by employing engines of such 
 power that they need not be worked to their utmost 
 capacity, — upon a motion to set aside the verdict for 
 the plaintiff, as against the weight of evidence, there 
 being no proof that the company had adopted such 
 precautions as might reasonably be expected to pre- 
 vent injury, the court refused to grant the motion. 1 
 But where the most approved means which science 
 and skill have invented are applied to prevent the 
 emission of sparks likely to cause injury, by using 
 proper spark arresters and otherwise, the presump- 
 tion of negligence does not arise from the fact that 
 the fire was communicated to the plaintiff's prop- 
 erty from the sparks, and that none of the defend- 
 ant's servants were on hand to extinguish it. 2 
 
 Statute Provisions imposing Liability for 
 Injuries by Fire. — In Maine and Massachusetts, 
 statutes, the exact transcripts of each other, have 
 been enacted, making railroad companies liable for 
 injuries caused by their engines in the emission of 
 
 1 Piggott v. Eastern Counties R. R. Co., 3 C. B. 229 ; 64 E. C. L. 229. In 
 this ca9e, it was important to determine whether the sparks produced the 
 injury ; and in order to show that they could have that effect, evidence was 
 held admissible that other engines of the same kind had thrown sparks to a 
 greater distance. 
 
 3 Rood v. N. Y. and Erie R. R. Co., 18 Barb. 80. Whether the company 
 is bound to keep a watch on the road for the purpose of extinguishing fires, 
 was a point raised in this case, but not decided. 
 
318 INJURIES TO PROPERTY BY EIRE. 
 
 sparks, even when not chargeable with negligence. 1 
 This provision has been held applicable as well to 
 railroads established before as since its passage, and 
 to estates a part of which has been conveyed to the 
 corporation by the owner for the purpose of a rail- 
 road, as well as to those a part of which has been 
 taken for the same purpose under authority of the 
 law. 2 The clause extending the company's liability 
 and the clause giving the power to insure, are held 
 to be co-extensive, and to interpret each other. 
 The clause giving the power to insure along its 
 route, was considered as. giving the power to insure 
 buildings near and adjacent to the route which were 
 exposed to the danger of fire from the engines, with- 
 out limitation or defining any distance ; and it was 
 held that, under the statute, the company was liable 
 for damages by fire to buildings near and adjacent 
 to its route, although the fire which destroyed them 
 was communicated from another building, which 
 caught fire from sparks issuing from the engine. 
 The statute is not confined to cases where the very 
 particles of fire which fall upon and kindle the flame 
 in the building burned, emanate from the engine 
 
 1 Mass. Stat. 1840, o. 85 ; Maine Stat. 1842, ch. 9, sec. 5. The provision is 
 as follows : " When any injury is done to a building or other property of any 
 person or corporation by fire communicated by a locomotive engine of any 
 railroad corporation, the said corporation shall be held responsible in 
 damages to the person or corporation so injured ; and any railroad corpora- 
 tion shall have an insurable interest in the property for -which it may be so 
 held responsible, in damages along its route, and may procure insurance 
 thereon in its own behalf." 
 
 2 Lyman v. Boston and Worcester E. E. Corp., 4 Cush. 288. See ante, 
 ch. iii. p. 44. 
 
INJURIES TO PROPERTY BY FIRE. 319 
 
 itself, without the intervention of any other object. 1 
 On the other hand, the liability of the company 
 for such injuries under the statute extends no 
 further than insurance is practicable. It includes 
 only property permanently existing along its route, 
 and capable of being insured ; and as to movable 
 property having no permanent location, it is to be 
 determined by the principles of the common law. 
 The company was therefore held not liable for the 
 destruction of some posts, deposited five or eight 
 rods from the track, by fire communicated from the 
 locomotive, while rightfully running on the track, 
 to some combustible matter near the posts, which 
 afterwards reached and consumed them, without 
 proof that the company or its agents were guilty of 
 negligence, unskillfulness, or imprudence, in running 
 or conducting the locomotive at the time. 2 
 
 ' Hart v. Western R. R. Corp., 13 Met. 99. 
 
 2 Chapman v. Atlantic and St. Lawrence R. R. Co., SI Maine, 92. 
 
320 INJURIES TO CATTLE. 
 
 CHAPTER XV. 
 
 injuries to cattle. 1 
 
 Liability oe the Company at Common Law. — 
 A railroad company is entitled to the exclusive use 
 of its track, except where by agreement or the 
 requirements of public law, private or public cross- 
 ings are allowed. Whether it be considered the 
 owner of the fee, or of a mere right of way, acquired 
 by purchase or condemnation, its enjoyment of its 
 track must necessarily be exclusive, so as to enable 
 it to carry out the purposes of its charter. The ad- 
 joining owner can claim no greater rights therein 
 while it is operated by the company as a common 
 carrier, than he can in the soil of his neighbor. He 
 has not even the rights in the soil under the track, 
 which he has in the soil under an adjoining highway, 
 while it is used for the purposes of a railroad. 2 
 
 The obligations of adjoining owners of land, to 
 which recurrence is here necessary, are determined 
 
 1 The term cattle as employed in this chapter includes, besides beasts of 
 the bovine genus, horses, sheep, and swine, and is not confined to the more 
 limited signification which prevails in the United States. 
 
 a Hurd v. Rutland and Burlington R. R. Co., 25 Vt. 116 ; Jackson v. 
 Same, 25 id. 160 ; Munger v. Tonawanda R. R. Co. 4 Comst. S49 ; S. C. 5 
 Denio, 256 ; Kerwhacker v. C. C. and C. R. R. Co. 3 Ohio State, 172 ; N. Y. 
 and Erie R. R. Co. u. Skinner, 19 Penn. State, 298 ; Williams v. Michigan 
 Central R. R. Co. 2 Gibbs (Mich.), 269. 
 
INJURIES TO CATTLE. 321 
 
 by ancient principles of the common law. By these, 
 every man must keep his cattle on his own close, 
 and prevent their escape therefrom. If they go 
 upon the land of another without his permission, the 
 owner is liable in trespass. The fact that there is 
 no fence between the two closes is not a defence to 
 the trespass, except where the owner of the lands 
 trespassed upon is, by prescription, agreement, or 
 otherwise, legally bound to support the fence by a 
 defect in which the cattle escaped into his land. If 
 he is so bound, he cannot maintain an action for their 
 entry, as they escaped through his own default. 1 
 
 A railroad company, sustaining substantially the 
 same relation to the adjacent owner as adjacent 
 owners do in other cases to each other, is not ac- 
 cording to these principles bound, in the absence of 
 special statute requirements, to fence its track against 
 the intrusion of cattle from the adjacent lands. In 
 consequence of its not being under this obligation, it 
 is not responsible for injuries to cattle coming upon 
 its track through the want of such a fence, without 
 proof of some other default. It may maintain an 
 action for the damage done by such cattle unlawfully 
 coming upon its track ; and on the other hand, it is 
 not liable to the owner for injuries inflicted on his 
 cattle, thus trespassing, while it is in the lawful exer- 
 cise of its right to the exclusive use of its track. 2 
 
 1 Kust v. Low, 6 Mass. 90 ; Thayer v. Arnold, 4 Met. 589 ; Little v. Lath- 
 rop, 5 Greenl. 386 ; Avery v. Maxwell, i N. H. 36 ; Tewksbury v. Bucklin, 
 1 id. 5 18; Wells «. Howell, 19 Johns. 385; Ricketts v. E. and W. India 
 Docks and Junction K. Co. 12 Eng. L. and Eq. 520. 
 
 ' PerkinB v. Eastern E. E. Co. 29 Maine. 307 ; Woolsonjj. Northern E. E. 
 
 22 
 
322 INJURIES TO CATTLE. 
 
 Ill the absence of a legal obligation to fence its 
 track, the exemption of the company from liability 
 for injuries to cattle straying upon it, except where 
 the injury has been wantonly perpetrated, has been 
 maintained on well-defined principles of law. It is 
 by law invested with the right to the exclusive 
 occupation of the land within the limits of its loca- 
 tion, except in certain cases where it crosses public 
 or private ways. It is clothed with the power to 
 operate a railroad as a common carrier within those 
 limits, according to the usages of railroads. Speed 
 is the distinguishing characteristic of this method of 
 transportation, which it is desirable and lawful to 
 maintain in the highest degree consistent with the 
 public safety. Upon what principle can it be re- 
 quired to abate that speed in favor of a party who 
 wrongfully causes or allows his cattle to pass upon 
 the track % If a trespasser places his cotton or other 
 combustible property within the limits of the rail- 
 road line, he cannot demand that the company shall 
 cease the emission of sparks from the engine, or stop 
 the train to extinguish the fire which has been com- 
 
 Co. 19 N. H. 267 ; Cornwall v. Sullivan E. R., 8 Foster, 170; Hurd v. Rut- 
 land and Burlington R. R. Co. 25 Vt. 123 ; Jackson v. Same, id. 150 ; Morse 
 v. Same, 27 id. 49 ; Morss v. Boston and Maine R. R. 2 Cush. 536 ; Tower v. 
 Prov. and Worcester R. R. Co. 2 Rhode Is. 404 ; Terry v. N. Y. Central 
 R. R. Co. 22 Barb. 574 ; Corwin v. N. Y. and Erie R. R. Co. 3 Kernan, 46 ; 
 Vandegrift v. Rediker, 2 Zabris. 185 ; N. Y. and Erie R. R. Co. v. Skinner, 
 19 Penn. State, 298; North Eastern R. R. Co.<;. Sineath, 8 Rich. 194; Crans- 
 ton v. C. H. and D. R. R. Co. 1 Hardy (Superior Ct. of Cincinnati), 193 ; 
 Williams v. New Albany and Salem R. R. Co. 5 Ind. Ill ; Alton and San- 
 gamon R. R. Co. a. Baugh, 14 111. 211 ; Williams v. Michigan Central R. R. 
 Co. 2 Gibbs, 259 ; Henry v. Dubuque and Pacific R. R. Co. 2 Clarke (Iowa), 
 303. 
 
INJURIES TO CATTLE. 323 
 
 municated to the cotton from the sparks. What 
 greater right can a trespasser assert for the protec- 
 tion of his cattle than for that of any other property ? 
 He has brought the injury upon himself, not only 
 by his negligence, but by a positive wrongful act of 
 trespass ; and, according to general principles of the 
 common law, he is without remedy under such cir- 
 cumstances. The obligation which the common law 
 imposes on a party to exercise ordinary care in the 
 use of his property to prevent injury to that of an- 
 other, defines the relations of parties both of whom 
 are exercising a right, and has no just application to 
 cases where one is a trespasser on the property of 
 the other. The company has, however, no right to 
 inflict wanton injury on cattle straying upon its 
 track. A wrongdoer is not an outlaw, and although 
 he may be without remedy for the consequences of 
 his negligence which he has brought upon himself 
 by his own act, he is protected against malicious 
 mischief. The principle that a party becomes him- 
 self a wrongdoer when he inflicts wanton injury on 
 a trespasser upon his property, is well settled. 1 
 If it be admitted that the company on which no 
 
 1 Vere v. Lord Cawdor, 11 East, 567 ; Deane v. Clayton, 7 Taunt. 489; 
 Mayor of Colchester v. Brooke, 1 Q. B. 376; Davies v. Mann, 10 M. & W. 
 546 ; Brownell v. Flagler, 5 Hill, 282 ; Vandegrift v. Rediker, 2 Zabris. 185 ; 
 Trow v. Vt. Central R. R. Co. 24 Vt. 487 ; N. Y. and Erie R. R. Co. v. Skin- 
 ner, 19 Penn. State, 298 ; Wright v. Brown, 4 Ind. 95 ; Williams v. New 
 Albany and Salem R. R. Co. 5 id. Ill ; Lafayette and Indianapolis R. R. Co. 
 v. Shriner, 6 id. 141 ; Tower v. Prov. and Worcester R. R. Co. 2 Rhode Is. 
 410 ; Chicago and Mississippi R. R. Co. v. Patchin, 16 111. 198 ; Great West- 
 ern R. R. Co. v. Thompson, 17 id. 131. Central Military Tract R. R. Co. v. 
 Rockafellow, 17 id. 641 ; 111. Central R. R. Co. v. Reedy, 17 id. 580. 
 
324 INJURIES TO CATTLE. 
 
 obligation to fence its track rests, is responsible for 
 damage to cattle coming thereon from the adjoining 
 land, provided it exercises ordinary care to avoid 
 injury, it deserves consideration whether the running 
 of its trains on its own track at the usual speed, without 
 halting before obstructions, other than human beings, 
 unlawfully placed upon it, does not fulfill the require- 
 ment of ordinary care as against such wrongdoer. 
 
 In New York, it is decided that the owner of do- 
 mestic animals straying upon the track of a railroad 
 company, and injured in a collision with its engines 
 while operated in the ordinary manner, has no rem- 
 edy for the loss against the company, although it 
 might have been avoided by the exercise of ordinary 
 care on its part ; and not even gross negligence, in 
 the absence of an intentional injury, will subject it 
 to liability. 1 
 
 1 Clark v. Syracuse and Utica R. R. Co. 11 Barb. 112; Talmadge v. Rens- 
 selaer and Saratoga R. R. Co. 13 id. 493 ; Marsh v. N. T. and Erie R. E. Co. 
 14 id. 365 ; Terry v. N. Y. Central R. R. Co. 22 id. 574; Tonawanda R. R. 
 Co. v. Munger, 5 Denio, 255, 266. Beardsley, C. J. : — " Negligence is a 
 violation of the obligation which enjoins care and caution in what we do. 
 But this duty is relative, and where it has no existence between particular 
 parties, there can be no such thing as negligence in the legal sense of the 
 term. A man is under no obligation to be cautious and circumspect towards 
 a wrongdoer. A horse straying in a field, falls into a pit left open and un- 
 guarded ; the owner of the animal cannot complain, for as to all trespassers 
 the owner of the field had a right to leave the pit as he pleased, and they can- 
 not impute negligence to him. But injuries inflicted by design are not thus 
 to be excused. A wrongdoer is not necessarily an outlaw, but may justly 
 complain of wanton and malicious mischief. Negligence, however, even 
 iwhen gross, Is but an omission of duty. It is not designed and intentional 
 imischief, a'lthough'it may be cogent evidence of such an act. (Story on Bail. 
 §§ 19, 22; Gardner v. Heartt, 3 Denio, 236.) Of the latter, a trespasser 
 may complain, although he cannot be allowed to do so of the former. 
 
 " In the present case, the charge of the court was in several material 
 respects erroneous. 
 
INJUEIES TO CATTLE. 325 
 
 So, in New Jersey, nothing but willfulness, or 
 
 " As to passengers on this railroad, the defendants were certainly bound by 
 the highest obligations of morality and law to run their engines and trains 
 with the most scrupulous care and vigilance. It was also their duty to use 
 every precaution to guard against communicating fire to buildings or other 
 property adjacent to the line of their road, or otherwise doing injury thereto. 
 But they owed no such duty to this plaintiff in regard to his oxen, when 
 trespassing on their land. The suggestions of the court below in this part 
 of the case would be very appropriate to a case between a passenger who 
 had been injured through the negligence of an engineer, or the conductor 
 of a train, but had no proper bearing on the case then to be decided by the 
 jury. The court seemed to have held, that if the plaintiffs oxen escaped 
 from his iuclosure ' after the exercise of ordinary care and prudence in tak- 
 ing care of them, he was not responsible for their trespass on the defendants' 
 land. This view of the law, we think, cannot be sustained. The plaintiff 
 was bound at his peril to keep his cattle at home, or at all events to 
 keep them out of the defendants' close, and no degree of ' care and prudence,' 
 if the cattle found their way on to the defendants' land, would excuse the 
 trespass. It would be a new feature of the law of trespass, if the owner of 
 cattle could escape responsibility for their trespasses by showing he had 
 used ' ordinary ' or even extraordinary ' care and prudence ' to keep them 
 from doing mischie£" The judgment of the Supreme Court in this case was 
 affirmed by the Court of Appeals, 4 Comst. 349, 357. Hurlbut, J. : " The 
 main question in this case is presented by the plaintiffs offer to prove that 
 the defendants were guilty of negligence, and that by the exercise of ordinary 
 care on their part, the accident might have been avoided. Taking this as 
 proved, the ea6e stands thus : The defendants in the rightful use of their 
 railway, while propelling an engine with cars attached and running at a low 
 rate of speed, struck and killed the plaintiff's oxen, which had strayed on 
 the track of the railway and were trespassing at the time. This result might 
 have been avoided by the exercise of ordinary care on the part of the 
 defendants, whose negligence contributed to produce the injury complained 
 of; and the question is, whether under such circumstances the plaintiff can 
 maintain his action. It is obvious that the plaintiff would have received 
 no injury if the oxen had not been on the track of the railway ; and having 
 been there without right, the law imputes a fault to the plaintiff. On the 
 other hand, although the plaintiff was in fault the injury would not have 
 happened but for negligence and the want of ordinary care on the part 
 of the defendants; and assuming this to have been a fault on their part, the 
 injury then would appear to have resulted from the common fault of both 
 parties. But if we were permitted to inquire as to the degree of blame 
 which attached to each, we should be obliged to pronounce that the principal 
 fault must be attributed to the plaintiff, and without the previous existence 
 
326 INJURIES TO CATTLE. 
 
 such negligence as amounts to willfulness, will make 
 the company liable for iiijury to cattle while wrong- 
 
 of -which, the defendants could not have been required, in the proper use of 
 their railway, to abate their speed, or take any precaution whatever for the 
 protection of the plaintiffs property. The case is stronger for the defendants 
 than if it had arisen on a highway between persons in the enjoyment of the 
 common right of travel, and where the injury resulted from the negligence 
 of both parties. The plaintiff in such a case would start by showing him- 
 self in the exercise of a lawful right ; and yet if it appeared that his own 
 negligence or unskillfulness in any way conduced to bring about the injury 
 complained of, he could not recover, whatever might have been the negli- 
 gence of the defendant. The law will not in such a case attempt nicely to 
 adjust the degree of blame to be assigned to the respective parties ; and 
 will not recognize any aet as an injury to either, which they mutually con- 
 tributed to produce. And so far has this doctrine been carried, that a 
 person injured by an obstruction placed unlawfully in a highway has been 
 denied a right of action for damages where it appeared that he had failed 
 to use ordinary care, by which the injury might have been avoided. The 
 plaintiff, before he can stand in court as an accuser, must himself be free 
 from fault. He cannot support his action by basing it partly on his own 
 wrong, and partly on the wrong of his adversary. He is answered when it 
 appears that he has been wanting in duty, or has contributed to his own 
 injury. He has then volunteered to suffer, and the law sees no wrong in 
 the case. So that, whenever it appears that the plaintiffs negligence or 
 wrongful act had a material effect in producing the injury, or substantially 
 contributed toward it, he is not entitle to recover. To this rule there seems 
 to be no exception, which can be made applicable to the case under con- 
 sideration. 
 
 ******* 
 
 " It is not deemed necessary after the very able and satisfactory review 
 of the authorities bearing on this subject, which was made in this case by 
 Ch. J. Beardsley, as reported in 5 Denio, 255, to dwell at length upon the 
 cases to which we have been referred upon the present argument. Suffice 
 it to say, that applying the principle of these cases to the facts before us, 
 we are led to the conclusion that as the defendants were in the lawful exer- 
 cise and enjoyment of their rights, and would have done no injury to the 
 plaintiff, if his oxen had not strayed on the track of the railway ; and as 
 they were there without right, in respect to them the law did not enjoin it 
 as a duty on the defendants to take care not to injure them. The want 
 therefore of such care was not in judgment of law a fault to be attributed 
 to the defendants ; but if it could be so considered, the plaintiff having also 
 been in fault, by which he contributed to produce the injury, is not entitled 
 to recover." 
 
IN JURIES TO CATTLE. 327 
 
 fully upon its track. 1 Thus, also, in Khode Island, 
 where the company was bound, under its charter, 
 to fence its track only when required by the adjoin- 
 ing owners, and had been released from that obliga- 
 tion by them, the company was held not liable for 
 any but willful injuries to cattle straying upon the 
 railroad track ; because, owing no duty to the owner, 
 it was not chargeable with negligence, and the in- 
 jury had arisen from the wrongful act of the owner. 
 The instruction to the jury that " if the cattle were 
 killed by the neglect of the defendants to use ordi- 
 nary care and skill in the common and ordinary 
 use of the lands for railroad purposes, such care and 
 skill as a man of common prudence would use, then 
 the defendants would be liable for the damages sus- 
 tained by the owners of the cattle so killed," was 
 therefore held to be erroneous. 2 But in Vermont 
 and some other States, the doctrine prevails that the 
 company is liable for injuries to cattle upon its 
 track, if they could have been avoided by its ser- 
 vants in the exercise of ordinary care. It was con- 
 sidered that the remote negligence of the plaintiff, 
 in allowing his cattle to run at large, did not release 
 the company from its duty to use ordinary care to 
 prevent injury at the time it occurred. 8 
 
 1 Vandegrift v. Rediker, 2 Zabris. 185. The 6ame view seems to be 
 taken in New Hampshire and Michigan. White v. Concord R. R. 10 Foster, 
 203 ; Williams v. Michigan Central R. R. Co. 2 Gibbs, 265, 266. 
 
 • Tower v. Providence and Worcester R. R. Co. 2 Rhode Is. 404. 
 
 8 Trow v. Vt. Central R. R. Co. 24 Vt. 488 ; Jackson v. Rut. and Bur. R. R. 
 Co. 25 id. 150; MorBe v. Same, 27 id. 49; Norris v. Androscoggin R. R. Co. 
 39 Maine, 276. See Danner v. S. C. R. R Co. 4 Rich. 329 ; North Eastern 
 
328 INJURIES TO CATTLE. 
 
 The rule of the common law, as heretofore stated, 
 that the owner of domestic animals is bound to 
 keep them on his own land, and is liable in trespass 
 when they pass upon his neighbor's land, is in seve- 
 ral of the States rejected, so far as uninclosed lands 
 are concerned, as inapplicable to their circum- 
 stances. The owner of such animals in these States 
 is not regarded as a trespasser when his cattle pass 
 upon the uninclosed lands of another ; it being the 
 prevailing custom to allow them to range at large 
 on such lands. 1 This modification of the common- 
 law rule is consistent with subjecting the company to 
 liability for injuries to cattle straying upon its track 
 only when those injuries are willful. The custom 
 to allow cattle to graze at large on uninclosed lands, 
 where no substantial damage is likely to be done, 
 without making the owner liable for trespass, does 
 not necessarily require for him the same privilege 
 where their straying, as in the vicinity of railroads, 
 is likely to occasion great injury to others ; and 
 even if his exemption from liability as a trespasser 
 
 R. R. Co. v. Sineath, 8 id. 194; Louisville and Frankfort R. R. Co. v. Milton, 
 14 B. Monroe, 75; Perkins v. Eastern R. R. Co. 29 Maine, 307; Garris v. 
 Ports, and Roanoke R. R. Co. 2 Iredell, 324 ; Rieketts v. E. and W. India 
 Docks, &c, R. Co. 12 Eng. L. and Eq. 520. In Indiana, the company, it is 
 said, would be liable in such a case for injury resulting " from gross negli- 
 gence, or willful misconduct." Lafayette and Indianapolis R. R. Co. v. Sliri- 
 ner, 6 Ind. 145. See Williams v. New Albany and Salem R. R. Co. 5 id. 113. 
 1 Studwell v. Ritch, 14 Conn. 292; Seeley v. Peters, 5 Gilman, 130; 
 North Eastern R. R. Co. v. Sineath, 8 Rich. 194; Kerwhacker v. C. C. and 
 C. R. R Co. 3 Ohio State, 172; C. H. and D. R. R. Co. •„. Waterson, 4 id. 
 424; C. C. and C. R. R. Co. „. Elliott, id. 474; Cranston o. C. H. and D. R. 
 R. Co. 1 Handy (Supreme Court of Cincinnati), 196 ; N. Y. and Erie R. R. 
 Co. v. Skinner, 19 Penn. State, 298. 
 
INJURIES TO CATTLE. 329 
 
 is admitted under such circumstances, it does not 
 involve any incidental rights of protection, except 
 against wanton injury, or require the company as 
 the proprietor of the land, to treat him as a person 
 exercising a right, and use ordinary care to prevent 
 injury to him. 1 
 
 It has, therefore, been decided in Pennsylvania, 
 where the owner is in general not liable for the entry 
 of his cattle on wood-land or waste fields, that the 
 common-law rule applies to unin closed lands in the 
 vicinity of railroads ; and if the owner allows his 
 cattle to run at large in the vicinity of them, he does 
 so at the risk of losing them, and paying for their 
 transgressions. 2 In Illinois, where the owner of 
 cattle grazing upon uninclosed lands of other per- 
 sons is not a trespasser, it was held, upon mature con- 
 sideration, that he becomes such when they wander 
 upon the track of an uninclosed railroad; and the 
 company is not liable for their loss while on the 
 track, unless its employees were guilty of willful or 
 wanton injury, or of gross negligence, evincing reck- 
 
 1 In Cranston ». C. H. and D. R. E. Co. 1 Handy (Superior Ct. of Cin- 
 cinnati), 19*7, Gholson, J., after noticing the exception to the common law 
 which is adopted in Ohio, said, 
 
 " There is, however, a great difference between an action by the owner 
 of land against the owner of cattle for the injury done by their breaking 
 into or straying upon the land, and an action by the owner of cattle against 
 the owner of land for an injury which the cattle may sustain while so upon 
 the land. And in respect to the latter case, I see no reason to doubt that 
 the rule of the common law prevails. That it does so prevail, and is as ap- 
 plicable to a railroad company as any other owner of land, appears to be 
 settled by numerous authorities." 
 
 " N. Y. and Erie R. R. Co. v. Skinner, 19 Penn. State, 298; see Knight 
 v. Abert, 6 id. 472. 
 
330 INJURIES TO CATTLE. 
 
 less or willful misconduct. 1 In Ohio, on the other 
 hand, where the common-law rule, that every man 
 must keep his cattle on his own close, is rejected as 
 to uninclosed lands, it is held that the company is 
 not obliged to fence its track, and the owner of do- 
 mestic animals running at large on uninclosed lands 
 is not liable in trespass. The owner is, however, 
 chargeable with a kind of negligence in allowing his 
 cattle to stray in the vicinity of an uninclosed rail- 
 road ; and the company is chargeable with the same 
 kind of negligence in not inclosing its track by fences 
 and cattle-guards, where cattle are accustomed to 
 run at large. The negligence in each case being 
 remote, the company is bound to use reasonable care 
 to avoid unnecessary injury to cattle straying upon 
 its track, and is liable only for want of such reason- 
 able care as is consistent with the safety of the per- 
 sons and property on the train. 2 But the owner of 
 
 1 Chicago and Mississippi R. R. Co. v. Patchin, 16 111. 198 ; Great West- 
 ern R. R. Co. v. Thompson, 17 id. 131 ; Central Military Tract R. R. Co. v. 
 Rockafellow, id. 541 ; 111. Central R. R. Co. v. Reedy, id. 580. Railroad com- 
 panies are now required by statute in Illinois to maintain fences on the 
 sides of their track, except in certain specified cases. Laws of Illinois, 
 (1855), p. 173. 
 
 ■ * Kerwhacker v. C. C. and C. R. R. Co. 3 Ohio State, 172 ; C. H. and D. 
 R. R. Co. v. Waterson, 24 id. 424, 433. Ranney, J.: "Railroad companies 
 have been incorporated with the capacity to acquire lands, and placed under 
 no obligation to fence, as a condition to using them for the purpose of run- 
 ning trains. They hold them as other proprietors do, and if they see fit to 
 leave them unfenced, they can no more treat the intrusion of domestic ani- 
 mals as a trespass, than other proprietors can. It has, therefore, always 
 seemed to me that suffering cattle to run at large, and running trains upon 
 an unfenced railroad, were each equally lawful — binding the owners of each 
 to submit to the inconveniences and increased hazards of using their prop- 
 erty in that manner — but subjecting neither to the imputation of unlawful 
 
INJURIES TO CATTLE. 331 
 
 cattle coming upon the track, who had by a contract 
 with the company assumed the obligation to fence 
 his land against it, was held a trespasser, and could 
 not recover of the company for an injury to them 
 while upon it, " without proof of intentional injury, 
 or of that gross carelessness, involving a recklessness 
 of consequences, which it is somewhat difficult to dis- 
 tinguish from intentional wrong. 1 " 
 
 Where there is no obligation on the company to 
 fence its track, it certainly is not responsible for 
 
 conduct, so as to give or bar a right of action, when either right has been 
 fairly and reasonably exercised. And that the legal consequence was, that 
 each, as against the other, was entitled to require the exercise of reasonable 
 and ordinary care to prevent injury." C. C. and 0. R. R. Co. v. Elliott, id. 474, 
 Thurman, C. J. : " The common-law doctrine that requires the owner of 
 domestic animals, not unruly or dangerous, to keep them upon his own prem- 
 ises, and makes him a trespasser if he suffer them to run at large, and they 
 go upon the uninclosed lands of another, is not the law of Ohio ; being 
 inconsistent with our statute law, and contrary to the common usage that has 
 always prevailed in this State. The remote negligence of the plaintiff will not 
 prevent his recovering for an injury to his property, immediately caused by 
 the negligence of the defendant. The negligence of the plaintiff that defeats 
 a recovery, must be a proximate cause of the injury. Suffering domestic 
 animals to run at large, by means whereof they stray upon an uninclosed 
 railway track, where they are killed by a train, is not in general a proxi- 
 mate cause of the loss ; and hence, although there may have been some neg- 
 ligence in the owner's permitting the animals to go at large, such negligence 
 being only a remote cause of the loss, it will not prevent his recovering 
 from the railroad company the value of the animals, if the immediate cause of 
 their death was negligence of the company's servants in conducting the train. 
 The bare fact that a railway is uninclosed, there being no statute requiring 
 it to be fenced, does not, in general, render the railroad company liable to 
 pay for animals straying upon the track and killed by a train — such want 
 of fencing being, in general, only a remote cause of the loss. The paramount 
 duty of a conductor of a train, is to watch over the safety of the persons and 
 property in his charge ; subject to which, it is his duty to use reasonable 
 care to avoid unnecessary injury to animals straying upon the road." See 
 Cranston v, C. H. and D. R. R. Co., 1 Handy, 193 ; Danner v. S. C. R. R. 
 Co., 4 Rich. 329 ; North Eastern R. R. Co. v. Sineath, 8 id. 194. 
 1 C. H. and D. R. R. Co. o. Waterson, 4 Ohio State, 424. 
 
332 INJURIES TO CATTLE. 
 
 injuries to cattle upon it, when the safety of persona 
 and property on the train requires that it should not 
 be arrested to preserve cattle from destruction. 
 This may happen where it is doubtful whether the 
 engine can be stopped with safety before reaching 
 them, and there appears to be less danger of acci- 
 dent by running over them at full speed than at a 
 less rapid rate. The company is under superior ob- 
 ligations to persons and property on its train. Even 
 if it be considered responsible, in case of negligence," 
 for injuries to cattle straying on the track, it is only 
 bound to use such care as is consistent with this 
 superior obligation ; and in judging of the danger in 
 a given case and the best means of avoiding it, its acts 
 are entitled to a favorable construction. 1 
 
 Injuries to Cattle on the Highway. — Town 
 regulations, under authority of statute, allowing 
 cattle to graze in the public highways, will not 
 avail the owner of cattle straying upon the track 
 from a highway crossing it, so as to entitle him to 
 damages for an injury to them by a train of cars, at 
 least without proof of negligence. 2 
 
 Where the cattle are lawfully in the highway, the 
 company whose track crosses it, is bound to exercise 
 ordinary care to prevent a collision, and is responsi- 
 
 * Kerwhacker v. 0. C. and C. R. R. Co., 3 Ohio State, 199; C. C. and C. 
 R. R. Co. v. Elliott, 4 id. 474; Cranston v. C. H. and D. R. R. Co., 1 Handy 
 (Superior Ct. Cincinnati), 193 ; Chicago and Mississippi R. R. Co. v. Patchin, 
 16 111. 198. 
 
 2 Williams v. Mich. Central R. R. Co., 2 Gibbs (Mich.) 259 ; Tonawanda 
 R. R. Co. v. Munger, 5 Denio, 255 ; 4 Comst. 349. 
 
INJURIES TO CATTLE. 333 
 
 ble for damages to them arising from the want of 
 it. In such a case both parties are exercising a right, 
 and each is bound to use ordinary care to prevent 
 injury to the other. It has been maintained that if 
 the least negligence of the plaintiff concurred with 
 that of the company, he cannot recover. But where 
 both parties are chargeable with negligence, the 
 better doctrine is that the plaintiff is entitled to 
 recover unless he might by the exercise of ordinary 
 care have avoided the consequences of the defend- 
 ant's negligence. The same degree of care is required 
 of railroad companies in managing their trains as of 
 other parties managing vehicles on the highway, 
 although a different class of precautions may be 
 required. 1 
 
 The company is also bound to use ordinary care 
 to prevent injury to cattle which are rightfully on 
 the track at farm-crossings. Under the statute of 
 New Hampshire, which provides that the corpora- 
 tion shall make and maintain all necessary cattle- 
 guards, cattle-passes, and farm-crossings, for the con- 
 venience and safety of the land-owners along the 
 side of the road, it was held that where a railroad 
 divides the pasture of a land-owner, and a crossing 
 is made by the corporation according to the act, 
 the land-owner may let his cattle run in the pasture 
 without a herdsman, and that the corporation will 
 be liable for their destruction while crossing the 
 
 1 Beers v. Housatonic R. R. Co., 19 Conn. 566 ; Tower v Prov. and Wor- 
 cester R. R. Co., 2 Rhode Island, 412. The principles discussed inch. xii. 
 ante, apply in determining the liability of the company for cattle right- 
 fully on the track. 
 
334 INJURIES TO CATTLE. 
 
 track from one pasture to the other, unless it appear 
 that the injury was caused by accident, or by the 
 fault of the owner. 1 If the cattle are on the high- 
 way for a lawful purpose, the company is liable 
 for an injury to them caused by its neglect of its 
 statute duty. 2 The liability of the company for 
 injury to cattle unlawfully on the highway, and 
 straying thence upon the track, where the injury 
 was received, is determined by the same principles 
 which define its liability where the cattle are unlaw- 
 fully on the adjoining close, and stray from thence 
 upon the track ; and these have already been con- 
 sidered. 
 
 Liability of the Company under* Statutes re- 
 quiring- it to maintain Fences. — The liability of 
 the company for injuries to cattle when the duty is 
 imposed on it to maintain fences on the sides of its 
 track, may next be determined. The general prin- 
 ciple may thus be stated : it is liable for injuries 
 to cattle which being lawfully on the adjoining 
 land pass from thence on to the track, and are 
 injured through the failure of the company to 
 perform the duty, whether imposed by a general 
 law or a provision in its charter, although no par- 
 ticular negligence at the time of the injury can be 
 attributed to it. The duty of building the fence 
 was imposed on the company for the benefit of the 
 
 1 White v. Concord Railroad, 10 Foster, 188 ; Housatonie E. E. Co., v. 
 Waterbury, 23 Conn. 101. 
 
 2 Midland R. Co. v. Daykin, 11 C. B. 126 ; 84 E. C. L. ; 33 Eng. L. & Eq. 
 193. 
 
INJURIES TO CATILE. 335 
 
 adjoining owner, and it is liable for the special injury 
 to him resulting from its "breach. 1 The company is 
 liable for the injury in consequence of its default in 
 not maintaining the required fence, although it was 
 imperfectly built by the owner of the cattle injured, 
 who was employed by the company to build it. 2 
 
 1 Broome's Com. on Common Law, pp. 668-675 ; Sharrod v. N. W. R. Ri 
 Co., 4 Exch. 684; Suydam ■</. Moore, 8 JJarb. 358; Waldron v. Rensselaer 
 and Saratoga R. R. Co., id. 390 ;* Nashville and Chattanooga R. R. Co. v. 
 Peacock, 25 Ala. 229 ; Williams v. New Albany and Salem R. R. Co., 5 Ind. 
 Ill; Norria v. Androscoggin R. R Co., 39 Maine, 273, 277. Tenney, J. : 
 " And where the charter of the company and the general statute provides 
 for the safety of property, not in the transportation thereof upon the rail- 
 road, but being in an exposed situation in its vicinity, by certain require- 
 ments, and by the neglect of these requirements, the property is destroyed 
 or injured by the engine upon the road, the liability cannot be denied. If 
 the charter imposes upon the company the obligation, at certain crossings, 
 to place men to guard the passages across the track, and to prevent persons 
 or domestic animals from passing when the trains are approaching, and 
 this requirement should be neglected to the injury of a party, from the en- 
 gine, no doubt could be entertained, that compensation for such injury could 
 be legally claimed. And where it is required, for a like object, that the 
 railroad passing by improved land shall be inclosed by a good and sufficient 
 fence, and this shall be neglected by the company, and horses or other ani- 
 mals in consequence of this omission stray upon the track, and are killed or 
 injured by the engine or its appendages, the company is liable in damages. 
 In such case, it is a neglect to construct the road in the manner prescribed, 
 for the very purpose of giving to the owners of this kind of property the 
 security designed, and the omission is the proximate cause of the damages 
 sustained. Sharrod v. London and North Western R. R. Co., 6 Railway and 
 Canal Cases, 245. The owner of the contiguous improved land is entitled to 
 remuneration for his losses so occasioned, equally with the passenger in the 
 cars, who should be injured by reason of the omission of the company to 
 construct the road in the mode required. As such defect was the cause of 
 the injury, the great moderation with which the engine was driven, the 
 extreme care of the engineer and the agents in attendance, would be no 
 answer to the claim for damages received." Horn v. Atlantic and St. Law- 
 rence R. R., 33 N. II. (not.yet issued) ; S. C. 19 Law Rep. (April, 1857), p. 
 694 ; Hurd v. Rut. and Bur. R. R. Co., 25 Vt. 124 ; Quimby v. Vt. Central 
 R. R. Co., 23 id. 387. 
 
 * Norris «. Androscoggin R. R. Co., 39 Maine, 273. 
 
336 INJURIES TO CATTLE. 
 
 Wrongful Act op Plaintiff. — But, although 
 the company is liable for injuries to cattle resulting 
 from its neglect of duty to fence its track, notwith- 
 standing it put forth every effort to prevent the 
 injury at the time, still it does not follow that, hav- 
 ing neglected this duty, it is liable for injuries of 
 which the owner was the immediate and active 
 cause. Applying the principles of the common law 
 to the construction of the statute, it would not be 
 responsible if the owner's act at the time of the 
 injury substantially contributed to it. 1 Where the 
 plaintiffs cow was injured in consequence of the 
 bars on his reserved road being left down, whereby 
 she came upon the track, it not appearing by whom 
 they were left down, it could not be attributed to the 
 negligence of the company. It was therefore held, 
 that the exercise of ordinary care on the part of the 
 plaintiff and the omission of some duty or the com- 
 mission of some wrongful act on the part of the 
 defendant, must concur to entitle the plaintiff to 
 recover. 2 It has been considered, that, although 
 the company has neglected to perform its statute 
 duty, yet if the injury did not arise from that cause, 
 some other omissiou or neglect on its part, which 
 
 1 Brooks v. N. Y. and Erie R. R. Co., 13 Barb. 694; Marsh v. N. V. and 
 Erie R. R. Co., 14 id. 364 ; Underhill v. N. Y. and Harlem R. R. Co., 21 id. 
 489; Terry*. N. Y. Central R. R. Co., 22 id. 574; Halloran v. N. Y. and 
 Harlem R. R. Co., 2 E. D. Smith, 257 ; Corwin v. N. Y. and Erie R. R. Co., 
 3 Kernan, 48-51 ; Macon and W. R. R. Co. v. Davis, 13 Geo. 68 ; but see 
 Lafayette and Indianapolis R. R. Co. v , Shriner, 6 Ind. 141. 
 
 * Waldron v. Portland, Saeo, and Portsmouth R. R. Co., 35 Maine, 422. 
 
INJURIES TO CATTLE. 33f 
 
 was the cause of the injury, must be shown to make 
 it liable. 1 
 
 Liability for Injuries to Cattle wrongfully 
 on the adjoining Land. — The principle of the 
 common law, which requires each proprietor of land 
 to keep his cattle within his own close, has already- 
 been stated. Notwithstanding there was no division 
 fence between him and his neighbor, he was liable 
 in trespass for an entry of his cattle upon the adjoin- 
 ing owner's land without permission, unless they 
 escaped from his own close through the want of a 
 fence which it was the duty of the owner of the 
 land thus entered upon by agreement, prescription, 
 or otherwise, to maintain. And when a proprietor 
 of land was obliged to fence his close, his duty was 
 to fence only against cattle rightfully on the adjoin- 
 ing close. The owner of the cattle was, however, 
 allowed to avail himself of the insufficiency of the 
 fence of the close entered, when he had an interest 
 in the adjoining close authorizing him to put his 
 cattle there, as a right of way, an highway, a license, 
 a lease, or right of common. Accordingly, where 
 A and B owned adjoining closes between which A 
 was bound to build the fence, if C's cattle first 
 entered upon B's land wrongfully and thence strayed 
 upon A's land through the want of the fence which 
 A in neglect of duty had not supported, C is liable 
 to A for the trespass. 2 The same rule was applied 
 
 1 Waldron v. Rensselaer and Saratoga R. R. Co., 8 Barb. 894; Talmadge 
 v. Same, 18 id. 496. 
 
 * Rust v. Low, 6 Mass. 90 ; Little v. Lathrop, 5 Greenl, 356 ; Lord v. 
 Wormwood, 29 Maine, 282. 
 
 23 
 
338 INJURIES TO CATTLE. 
 
 to cattle straying upon the highway, the right of soil 
 under which being in another, and the cattle being 
 wrongfully there except when they are being 
 driven along. 1 
 
 The application of this rule of the common law, to 
 the interpretation of a statute imposing on the com- 
 pany the duty to make and maintain fences on the 
 sides of its track, depends on the question, whether its 
 purpose and intent as gathered from its terms appear 
 to be the same as those of the statute which defines, 
 the obligations of adjoining owners in that respect. 
 If it is designed merely for an adjustment of the 
 duties and rights of the company and of adjoining 
 owners, in respect to the division fences between 
 them, simply imposing, on grounds of private justice 
 between the parties, the entire burden on one which 
 under other laws of a like purpose is shared equally 
 by both, then the company under the application of 
 the rule of the common law already stated is not 
 liable, at least in the absence of negligence, for 
 injuries to cattle unlawfully on the adjoining close, 
 notwithstanding it has not complied with the statute 
 requirement ; the default being one of which the 
 adjoining owner only, or some person enjoying his 
 license has a right to complain. This is the con- 
 struction placed in England on the sixty-eighth 
 section of the Railways' Clauses Consolidation Act, 
 8 and 9 Victoria, c. 20, which provides that the 
 company shall make and maintain, for the accom- 
 
 1 Dovaston v. Payne, 2 H. Bl. 527 ; Stackpole v. Healy, 16 Mass. 33 ; 
 Lord v. Wormwood, 29 Maine, 282 ; Avery v. Maxwell, 4 N. H. 36. 
 
INJURIES TO CATTLE. 339 
 
 modation of the owners and occupiers of lands adjoin- 
 ing the railway, sufficient fences for separating the 
 land taken for the use of the railway from the adjoin- 
 ing lands not taken, and protecting such lands from 
 trespass, or the cattle of the owners and occupiers 
 thereof from straying thereout by reason of the rail- 
 way. It was held, that the obligation imposed by 
 this section was the same as if the company had been 
 bound by prescription at common law to repair the 
 fences, and was for the protection only of the owners 
 and occupiers of the adjoining close. 1 The statutes 
 of several States in this country have been construed 
 in the same manner. 3 
 
 So in Vermont, where the charter required the 
 company " to build and maintain sufficient fence 
 upon each side of their railroad through the whole 
 route thereof," and the plaintiffs horses which were 
 kept in his pasture at some distance from the rail- 
 road, escaped therefrom and came upon the track 
 by crossing the highway or lands of other persons 
 remaining unfenced, and were run over by the train, 
 
 1 Eicketts v. East and West India Docks, <fcc, Junction E. Co., 12 Eng, 
 L. & Eq. 520; S. C, 12 C. B. 160; Manchester, &c. R. Co. v. Wallis, 14 C, 
 B. 213 ; 78 E. C. L. ; 25 Eng. L. & Eq. 373. 
 
 * Perkins v. Eastern E. E. Co., 29 Maine, 307 ; Towns v. Cheshire E. B. 
 1 Foster, 863 ; Woolson v. Northern E. R, 19 N. H. 267 ; Lafayette and 
 Indianapolis E. E. Co. v. Shriner, 6 Ind. 145 ; Brooks v. N. Y. and Erie E. 
 E. Co., 13 Barb. 594; Marsh ■„. N. Y. and Erie E. E. Co., 14 id. 364; 
 Vandegrift v. Eediker, 2 Zabris. 185. The question has been raised, but 
 not decided, -whether, as against the company, the cattle which have 
 strayed upon the adjoining land through a defect of fences which the adjoin- 
 ing owner was bound to maintain, were rightfully in the adjoining land ; and 
 the judge delivering the opinion, regarded the owner of the cattle as not in 
 default. Underbill v. N. Y. and Harlem E. E. Co., 21 Barb. 489 ; but see 
 Eust v. Low, 6 Mass. 90. 
 
340 INJURIES TO CATTLE. 
 
 the obligation of the company to fence was regarded 
 as a duty to the adjoining owners only, who might con- 
 sent to the omission of its performance, or assume it 
 themselves. After such a waiver the adjoining owner, 
 and by a stronger reason a third party, could not re- 
 cover for damages in consequence of the omission. 1 So 
 in New Hampshire, where railroad companies are re- 
 quired to fence their tracks by a general statute, except 
 where they have settled with and paid the owner of 
 the adjoining land for building and maintaining the 
 fence, it appeared that the company owned a strip 
 of land lying between its road and the plaintiffs 
 land, between which pieces there was no fence, and 
 no proceedings had been taken by either party to 
 have one erected ; and the plaintiffs sheep, which 
 he had turned on his own land, escaped on to 
 the company's strip, and thence on to its track, 
 where they were killed by the engine ; — it was held 
 that the statute was designed, as other statutes 
 requiring owners to fence, solely for the benefit of 
 persons whose cattle were rightfully on the adjoin- 
 ing land ; and that as the corporation could by a 
 contract with the adjoining owner relieve itself of 
 the obligation to fence, it can when the land-owner 
 itself, take such course as it pleases, and is not liable 
 for damage to cattle trespassing on its lands. 
 Adopting this construction of the statute, the com- 
 pany is not liable for injuries to cattle upon its 
 
 1 Jackson v. Rutland and Burlington R. R. Co. 25 Vt. 160; Morse v. Rut- 
 , land and Burlington R. R. Co. 27 id. 49. 
 
 * Cornwall v. Sullivan R. R. Co. 8 Foster, 181. 
 
 2 
 
INJURIES TO CATTLE. 341 
 
 track, at least in the absence of negligence, which 
 have strayed upon the highway, and come upon the 
 track through the want of the fence or cattle-guards 
 which the company is by law bound to maintain. 
 The cattle were unlawfully on the highway, unless 
 they were being driven along, or while being driven 
 along, escaped from the persons having charge of 
 them, who made fresh pursuit. The plaintiff can- 
 not recover for an injury brought about by his neg- 
 ligent and unlawful act. 1 
 
 ■Although the company, when bound to fence, 
 may not be bound to fence against cattle unlawfully 
 on the adjoining land, it is liable for wanton injury 
 to them, and in some States is liable for injury to 
 them which might have been avoided by it in the 
 exercise of ordinary care at the time of the injury. 2 
 
 A construction of the statute may be adopted 
 which excludes the operation of the rule of the com- 
 mon law requiring a party, on whom the obliga- 
 tion of fencing rests, to fence only against cattle 
 rightfully on the adjoining close. If the stat- 
 ute is intended as a police law for the safety of 
 
 1 Woolson v. Northern E. R. 19 N. H. 267 ; Towns v. Cheshire R. E. Co. 
 1 Foster, 363 ; Trow v. Vt Central R. R. Co. 24 Vt. 494 ; Jackson v. Rut- 
 land and Burlington R. R. Co. 25 id. 150; Tonawanda R. R Co. v. Munger, 
 5 Denio, 255 ; 4 Comst. 349 ; Waldron v. Rensselaer and Saratoga R. R. Co. 
 8 Barb. 390 ; Clark v. Syracuse and Utica E. E. Co. 11 Barb. 112; Marsh v. 
 N. Y. and Erie E. E. Co. 14 Barb. 364 ; Halloran v. N. Y. and Harlem E. R. 
 Co. 2 E. D. Smith, 257 ; Williams v. Mich. Central E. E. Co. 2 Gibbs (Mich.), 
 259; Manchester, Sheffield, and Lincolnshire E. Co. v. Wallis, 14 C. B. 
 213; 78 E. C. L. ; 25 Eng. L. and Eq. 373. 
 
 ' Jackson v. Eutland and Burlington E. E. Co. 25 Vt. 150; Trow v. Vt. 
 Central E. E. Co. 24 id. 487 ; Williams v. New Albany and Salem B. E. Co. 
 5 Ind. 114 ; Lafayette and Indianapolis R. R. Co. •«. Shriner, 6 Ind. 145. 
 
342 INJURIES TO CATTLE. 
 
 the public and the protection of property in domes- 
 tic animals generally, and designed to impose a gen- 
 eral and not merely a limited obligation, the com- 
 pany will be liable for damage to cattle trespassing 
 on the adjoining land where it has neglected its pub- 
 lic duty to fence. The great and peculiar danger 
 attending the operation of railroads, and the loss of 
 life and limb likely to result from a collision of the 
 locomotive or cars in their rapid movement, with 
 cattle on the track, invite this liberal construction 
 of the statute. Thus, the company being required 
 in general terms, where a railroad crossed a turn- 
 pike or other road, to keep gates constantly closed 
 except during the time when horses, cattle, carts, or 
 carriages passing along such turnpike or other road, 
 shall have to cross the railway, the duty of keeping 
 the gates closed was held to be imposed under all 
 circumstances except those specially excepted ; and 
 and as against the railroad company, horses straying 
 on the adjoining land were not unlawfully there, 
 and the company neglecting the statute duty was 
 liable for damage to them in consequence thereof. 1 
 The same construction has been put upon the statute 
 of New York in a recent decision of the Court of 
 Appeals, overruling previous decisions in the Su- 
 preme Court. 2 It was held to have imposed the 
 
 1 Faweett v. York and North Midland R. R. Co. 2 Eng. L. and Eq. 289. 
 
 2 The statute is as follows: " Every corporation formed under this act, 
 shall erect and maintain fences on the sides of their road, of the height and 
 strength of a division fence required by law, with openings or gates or bars 
 therein, and farm-crossings of the road for the use of the proprietors of lands 
 adjoining such railroad ; and also construct and maintain cattle-guards at all 
 road-crossings, suitable and sufficient to prevent cattle and animals from 
 
INJURIES TO CATTLE. 343 
 
 general duty of erecting and maintaining fences on 
 the sides of the road for the public benefit and secu- 
 rity, as also for the benefit of the owners of cattle 
 generally, without any limitation to cattle lawfully 
 on the adjoining premises. Having failed to per- 
 form the duty imposed by the legislature, it cannot, 
 it was held, raise the question whether the cattle 
 were lawfully or not on the adjoining close, but it is 
 liable in either case for the damages done to them by 
 the agents or engines, as the statute declares. A party 
 whose cattle had strayed on the adjoining land, and 
 come thence upon the track through want of the fence, 
 was allowed to recover, although the owner of such 
 land had covenanted to erect and maintain the 
 fences — the covenant affecting the company's liabil- 
 ity to the covenantor only, and not to third parties ; 
 but if the owner of the cattle had willfully driven 
 his cattle on the track, or into its neighborhood, or 
 had been guilty of any other positive act increasing 
 the danger, it was considered that he would be 
 without remedy, on the maxim volenti non fit inju- 
 ria. 1 The same construction has been put upon a 
 statute in Alabama, imposing on railroad companies 
 liability for cattle killed by them ; but upon the 
 special ground that the common law, so far as it 
 
 getting on to the railroad. Until such fences and cattle-guards shall be 
 duly made, the corporation and its agents shall be liable for all damages 
 which shall be done by their agents or engines, to cattle, horses, or other 
 animals thereon ; and after such fences and guards shall be duly made and 
 maintained, the corporation shall not be liable for any such damages unless 
 negligently or willfully done." Laws of 1850, ch. 140, § 44. 
 1 Corwin v. N Y and Erie R. R. Co. 3 Kernan, 42. 
 
344 INJURIES TO CATTLE. 
 
 makes the owner of cattle who permits them to stray 
 upon the uninclosed lands of other persons, a tres- 
 passer, is not adopted in that State. 1 
 
 Waiver oe the Benefit of the Statute re- 
 quiring Fences. — The provision of a statute requir- 
 ing the company to maintain fences on the sides of 
 its track, which is to be interpreted as designed for 
 the protection of the adjoining owner, may be 
 waived by him, or the duty assumed by himself. 
 The effect of such waiver is to exonerate the com- 
 pany from liability for injuries to his cattle in con- 
 sequence of the fence not being constructed accord- 
 ing to the requirement of the statute. 2 
 
 In New York under the act of 1&50, 8 requiring 
 companies to erect and maintain at farm crossings, 
 bars or gates to prevent cattle from getting upon 
 the railroad, it was decided that where the owner 
 had taken upon himself the obligation of per- 
 forming the statute duty, and been paid by the 
 company for the same, he had no right of action 
 
 1 Nashville and Chattanooga R. R. Co. v. Peacock, 25 Ala. 229. 
 
 * Jackson „. Rut. and Burl. R. E. Co. 25 Vt. 150; Cornwall v. Sulliran 
 R. R. 8 Foster, 161. Under the N. H. act requiring the railroad company 
 to make and maintain farm-crossings, <fcc, with the proviso that it shall 
 not apply where the corporation shall settle with the landowner in relation 
 thereto, a land-owner's deed to the company containing the clause, " said cor- 
 poration to fence the land, and prepare a crossing with cattle-guards, at the 
 present traveled path, on a level with the track," was held not to be such a 
 settlement, and not to change the legal position of the parties. White v. 
 Concord R. R. 10 Foster, 188. 
 
 8 Laws of 1850, ch. 140, § 44. 
 
INJURIES TO CATTLE. 345 
 
 against the company for injuries to cattle through a 
 defect in its performance. 1 
 
 The power of the land-owner to waive the benefit 
 of the provision, has also been affirmed in Vermont ; 
 where it is held that the waiver is not affected by 
 the failure of the company to fulfill an agreement 
 to furnish some other protection, differing from but 
 equivalent to that imposed by the statute. The 
 land-owner's only remedy for such breach of con- 
 tract is, a suit for damages thereon. 2 
 
 1 Tombs v. Rochester and Syracuse R. R. Co. 18 Barb. 583. It may 
 be doubted whether this decision would be approved by the Court of Ap- 
 peals, at least as to injuries to the cattle of any but the party who had 
 waived the provision of the statute, under the principles laid down in Cor- 
 win v. N. Y. and Erie R. R. Co. 3 Kernan, 42. 
 
 A parol agreement by the adjoining owner to erect and keep up the 
 division fence, is not within the clause of the statute of frauds which ren- 
 ders void an agreement not to be performed within a year. Talmadge v. 
 Rensselaer and Saratoga R. R. Co. 13 Barb. 493. 
 
 2 Hurd v. Rut. and Bur. R. R. Co. 25 Vt. 116. The company was 
 required by its charter " to build and maintain a sufficient fence upon each 
 side of their road, through the whole route thereof." The plaintiff gave 
 evidence to prove an agreement by the company to provide gates, instead 
 of bars, as usually furnished at a farm-crossing, by neglecting to provide 
 which, the plaintiff's cattle entered on the railroad track and were injured. 
 The company gave evidence to prove that before the injury, while its 
 agents were putting in the bars, he forbade them, insisting before the first 
 injury that he was to have a free and open pass ; and at another time, be- 
 fore the second injury, claiming that he was entitled to gates. The com- 
 pany had erected a fence along the road except at this point. There being 
 no evidence of any negligence or willfulness on the part of persons running 
 engines at either time, it was decided that, upon the principles of the com- 
 mon law, the plaintiff could not recover, being by them required to keep 
 his cattle on his own land ; that the provision of the charter cited created 
 a duty personal to the plaintiff and other adjoining land-owners, each of 
 whom, so far as he was concerned, might waive it or discharge the company 
 of its performance, and, after such waiver, would be estopped from setting 
 up the want of sufficient fence as a substantive ground of complaint. The 
 erection of bars would be a compliance with the statute, whose benefit was 
 
346 injuries to cattle. 
 
 Exceptions to the Rule believing the Company 
 feom the obligation to pence, when not eequieed 
 by expeess statute peovision. — To the general rule 
 already stated, that in the absence of a special stat- 
 ute requiring the company to make and maintain 
 fences along its line, such a duty does not rest upon 
 it, exceptions have been admitted in some States. 1 
 
 In Vermont, it was held that the general laws in 
 
 waived by a refusal to have them erected ; and if the company, who offered 
 to erect them, neglected to erect gates according to a special agreement, the 
 plaintiff's only remedy would be an action on the contract, for damages. 
 This case does not decide but that, in an action on the contract, the plaintiff 
 might recover as damages, the value of his cattle iniured in consequence of 
 its breach. 
 
 1 In New York, it was once considered that the company should make 
 and maintain such fences " to insure the safety of the persons and property 
 of those who may pass upon the road." The company was regarded as 
 liable to contribution to adjoining owners, under the laws regulating partition 
 fences. Its liability to contribution, was based on its interest in having 
 such fences maintained, and this interest upon its duty to protect the per- 
 sons and property transported by it, from injuries likely to be received in 
 collisions with cattle straying on the track. No intimation is made that the 
 company is in any default towards the adjoining owners, until called upon 
 by them to build its half of the fence, or to contribute to the expense. In the 
 Matter of Rensselaer and Saratoga R. R. Co., 4 Paige, 553. This decision 
 has not been followed in New York. In Matter of Long Island R. R. Co. 
 and M'Conochie, 3 Edw. Ch. 486. It is also controverted in Henry v. Du- 
 buque and Pacific R. R. Co., 2 Clarke (Iowa), 305. See Munger v. Tona- 
 wanda R. R. Co., 4 Comst. 349 ; 5 Denio, 255. Clarke v. Syracuse and Utica 
 R. R. Co., 11 Barb. 112. Nor does the duty to erect fences, it seems, arise 
 from the assumption of the appraisers of damages, that the company will 
 build them. Williams v. N. Y. Central R. R. Co., 18 Barb. 222. 
 
 Under the statute of New York, making " the corporation and its agents 
 liable for all damages which shall be done by their agents or engines, to 
 cattle, horses, or other animals," in case of its omission to fulfill the require- 
 ment to build fences, the duty was held to be one in respect to the owners 
 of such animals only ; and its omission was not to be considered per se negli- 
 gence in case of injury to a servant upon its trains, in consequence of a col- 
 lision with cattle coming upon the track. Langlois v. Buffalo and Roches- 
 ter R. R. Co., 19 Barb. 364. 
 
INJURIES TO CATTLE. 347 
 
 relation to the division fence between adjoining 
 owners do not apply to a railroad company which, 
 by its charter, is seized only of a right of way ; and 
 that the entire expense of fencing its track, rests pri- 
 marily on the company when the charter is silent as 
 to the duty. Such a rule was considered to be the 
 dictate of reason and justice. It was, therefore, de- 
 cided, that until the company had built the fence, or 
 paid the land-owner for doing it a sufficient length 
 of time to enable him to do it, the mere fact that his 
 cattle have come upon the track from his adjoining 
 land, through the absence of such a fence, is no ground 
 for imputing negligence to him, so as to prevent his 
 recovering damages for an injury to them by its 
 trains, which resulted from its neglect to use ordin- 
 ary care. 1 
 
 This doctrine — that it is the duty of the company 
 to erect and maintain such fences on its road as will 
 pr»vent domestic animals from passing thereon, and 
 
 1 Quimby v. Vt. Central R. R. Co., 23 Vt. 387. The expense of fencing 
 having been included in this case in the assessment of damages to the owner, 
 it is not easy to see how the company could be in default in not building 
 the fence. There does not seem to be a uniformity of opinion in this State, 
 on the duty of a company, in the absence of a special requirement by statute, 
 to make and maintain fences. Thus, in Trow v. Vt. Central R. R. Co., 24 
 Vt. 492, Isham, J., says, "That a duty of that character rests upon this 
 corporation, must be considered as settled in this State, by a decision of this 
 court in the case of Quimby v. Vt. Cent. R. R. Co., 23 Vt. 393. The court 
 there held, ' that the expense of fencing rests primarily upon the company,' 
 and consequently, can be taken into consideration by the commissioners in the 
 assessment of damages; and when this duty exists, an action will lie for any 
 injury arising solely from any neglect therein." But in Hurd if. Rut. and 
 Bur. R. R. Co., 25 Vt. 123, the same judge says, "Where no statutes exist, 
 and no obligation is imposed by covenant or prescription, a railroad com- 
 pany is not bound to fence their land." 
 
348 INJURIES TO CATTLE. 
 
 that it is responsible for injuries arising from such 
 neglect, has been confirmed by the same tribunal in 
 a subsequent decision. The duty was, however, 
 considered more or less imperative, and its perform- 
 ance requiring greater or less sufficiency and care, 
 as the locality is more or less thickly settled. 
 While, according to the view of the court, the de- 
 fendants were guilty of negligence in not erecting 
 and maintaining suitable fences and cattle-guards 
 upon the line of their road, it also appeared that the 
 plaintiff was chargeable with the same degree of 
 negligence in permitting his horse to run at larger 
 near the railroad, knowing his exposure and liability 
 to injury therefrom. There being no evidence of 
 any negligence of the company in conducting its 
 train at the time the horse was killed, it was held 
 that both parties being equally chargeable with re- 
 mote negligence, not occurring at the time of the 
 m J ul 7> which equally contributed to the result, the 
 plaintiff could not recover. 1 
 
 1 Trow v. Vt. Central R. R. Co., 24 Vt. 487, 494. Isham, J. : " This 
 leads our investigation to the question, whether an action can be sustained, 
 when the negligence of the plaintiff and the defendant has mutually co-oper- 
 ated in producing the injury for which their action is brought. On this 
 question, the following rules will be found established by the authorities. 
 When there has been mutual negligence, and the negligence of each party 
 was the proximate cause of the injury, no action whatever can be sustained. 
 In the use of the words ' proximate cause,' is meant negligence occurring at 
 the time the injury happened. In such case, no action can be sustained by 
 either, for the reason ' that as there can be no apportionment of damages, 
 there can be no recovery.' So, where the negligence of the plaintiff is 
 proximate, and that of the defendant remote, or consisting in some other 
 matter than what occurred at the time of the injury, in such case no action 
 can be sustained, for the reason that the immediate cause was the act of the 
 plaintiff himself. Under this rule falls that class of cases, where the injury 
 
INJURIES TO CATTLE. 349 
 
 Iu Ohio, it has been held that a railroad company- 
 is not bound by law to fence, there being no statute 
 
 arose from the want of ordinary or proper care on the part of the plaintiff, 
 at the time of its commission. These principles are sustained by Hill v. 
 Warren, 2 Stark R. ill ■ 1 Met. 274 ; 12 Met. 415 ; 5 Hill, 282 ; 6 Hill, 892 ; 
 Williams v. Holland, 6 0. & P. 23. On the other hand, when the negligence 
 of the defendant is proximate, and that of the plaintiff remote, the action 
 can then well be sustained, although the plaintiff is not entirely without fault. 
 This seems to be now settled in England and in this country. Therefore, if there 
 be negligence on the part of the plaintiff, yet, if at the time when the injury 
 was committed, it might have been avoided by the defendant in the exercise 
 of reasonable care and prudence, an action will lie for the injury. So in 
 this case, if the plaintiff were guilty of negligence, or even of positive 
 wrong, in placing his horse in the road, the defendants were bound to the 
 exercise of reasonable care and diligence in the use of their road and man- 
 agement of the engine and train, and if for want of that care the injury 
 arose, they are liable. 
 
 * * * * ***** 
 
 " These principles have an important application to the case under con- 
 sideration. The negligence, which caused the injury in this case, cannot 
 strictly be said to be proximate in either of the parties, but is remote, in both 
 cases. It was remote on the part of the corporation ; for it is found in the 
 case, that there was no negligence on their part in the management of the 
 train or engine, when the injury arose, but the neglect existed in not having 
 previously made their fences and cattle-guards. It was also remote on the 
 part of the plaintiff, in permitting his horse to remain in the highway, ex- 
 posed to such injury, after it first came to his knowledge. The injury arose 
 from the combined result of both causes If either of the parties had done 
 their duty, and conformed to the requirements of the law, the injury would 
 not have been sustained. In such case, no action can be sustained by either 
 of the parties, no more than in the case where their mutual negligence is 
 the proximate cause of the injury ; for the same reason exists in the one case 
 that exists in the other. From the nature of the case, there can be no appor- 
 tionment of damages, and no rule can be laid hold of that settles what one shall 
 pay more than the other. The rule is generally given in the authorities, 
 that in cases of mutual neglect, where it is of the same character and de- 
 gree, no action can be sustained. This principle has uniformly been sus- 
 tained in this State, for injuries arising from negligence on the highways." 
 
 It may be remarked, that although the Supreme Court of Vermont holds 
 that the company, in the absence of a special statute requirement, is bound 
 to fence its road, yet it does not give the same effect to a neglect to fulfill 
 that obligation, as is given in other States to a neglect to fulfill the 
 statute obligation in which the company is made liable for damages re- 
 
350 INJURIES TO CATTLE. 
 
 imposing the duty ; as also, that the owner of cattle 
 is not liable in trespass when they enter upon its 
 uninclosed track. The company is, however, charge- 
 able with remote negligence in not fencing its track 
 against the intrusion of cattle in a district where the 
 custom is to allow them to run at large ; and the 
 owner is chargeable with the same kind of negli- 
 gence in allowing them to run at large in the vicinity 
 of an uninclosed railroad. Both parties, being thus 
 chargeable with remote negligence, not occurring at 
 the time of the injury, and equally in fault, there 
 can be no recovery for an injury to the cattle, if 
 nothing further appears. But the remote negli- 
 gence of the plaintiff was held not to excuse the 
 company from exercising at the time of the injury, 
 reasonable and ordinary care consistent with the 
 safety of the persons and property on its train, to 
 avoid injury to the cattle. 1 
 
 The duty of a railroad company to fence its track, 
 has been implied from a statute when not imposed in 
 positive terms. The statute of New Hampshire, en- 
 acted by the Revised Statutes superseded a prior one 
 which in direct terms imposed the duty of fencing on 
 the company. But it was held that the term " neglect," 
 in the beginning of the section, followed by a penalty 
 
 suiting from the neglect, although it used the highest care to prevent the 
 injury when it occurred See ante, p. 334. The result is, that no greater 
 responsibility is imposed on the company in Vermont, where it is held hound 
 to fence its road, than in some other States, as in Ohio, where in the absence 
 of a statute requirement it is held not bound to fence it. 
 
 1 Kerwhacker v. C. C. and C. R. R. Co., 3 Ohio State, 172; C. C. and C. 
 R. R. Co. v. Elliott, 4 id. 474; C. H. and D. R. R. Co. v. Waterson, 4 id. 424; 
 Cranston v. C. H. and D. R. R. Co., 1 Handy, 193. 
 
INJURIES TO CATTLE. 351 
 
 imposed upon the neglect after notice, and the pro- 
 vision excluding from the operation of the section 
 cases where the corporation had settled with and 
 paid the owner for building and maintaining such a 
 fence, made it evident that the legislature contem- 
 plated the duty of erecting and maintaining such 
 fences as resting exclusively on the corporation, in 
 all cases except where the land-owner has been paid 
 for assuming it. A party who had suffered injury 
 through the neglect of the company to support the 
 fence, was not confined to the remedy prescribed by 
 the statute ; as it was limited in its nature, and not 
 co-extensive with the injuries which might arise from 
 the neglect to fence. 1 
 
 Dutt to Fence imposed by a Special Tribu- 
 nal. — The duty to erect fences is sometimes left by 
 statute to the discretion of a tribunal authorized to 
 assess damages ; as in Massachusetts, by a statute 
 
 1 Dean v. Sullivan R. R. Co., 2 Foster, 316 ; Corn-wall v. Sullivan R. R. 
 Co., 8 id. 161. The statute provision is as follows: " If any railroad corpo- 
 ration shall neglect to keep a sufficient and lawful fence on each side of their 
 road, any person against whose land such fence is insufficient, may notify 
 the agent of such corporation thereof, and if such fence shall not be made 
 sufficient within twenty days after such notice, the owner of such land may 
 make or repair such fence, and may thereupon recover of said corporation 
 in an action of assumpsit, double the amount necessarily expended in making 
 or repairing the same as aforesaid ; provided, however, that the foregoing 
 provisions of this section shall not apply to any case where such corporation 
 shall have settled with and paid the owner of such land for building and 
 maintaining such fence." R. S. ch. 146, § 6 ; Comp. Stat. ch. 150, § 46. 
 It was said in Dean v. Sullivan R. R. Co., 2 Foster, 316, that railroad com- 
 panies where they own their track, are subject to the same liabilities in 
 this respect as other owners, but not when they own only an easement or 
 right of way. 
 
352 INJURIES TO CATTLE. 
 
 which authorizes the county commissioners to direct 
 that fences be maintained by the proprietors of the 
 railroad, and proyides that such direction shall not 
 be altered by the verdict of the jury on appeal. 
 But where the cattle were injured by reason of there 
 being no fence along the line of the railroad which 
 was laid out before the statute, the county commis- 
 sioners having awarded the adjacent owner a sum in 
 damages, and provided in the award that the com- 
 pany should make and maintain the fences, and the 
 jury on appeal having assessed damages without in 
 their verdict making an order on the subject offences, 
 it was held that the whole question of damages was 
 open for the consideration of the jury, and by neces- 
 sary inference, the whole damage was assessed in 
 money. No duty was, therefore, imposed on the cor- 
 poration to build the fence, and it was not liable for 
 injury in consequence of there being none erected. 1 
 
 Duty to Fence Imposed by Contract. — There 
 may be a special agreement to build the fence, as a 
 part of the damages for taking the land, which may 
 be enforced by a suit thereon. Thus, where a rail- 
 road corporation, in consideration of an amicable 
 settlement of the damages with the owner of the 
 land taken for its road, agreed with him to fence the 
 land taken, and failing to do so within a reasonable 
 time was sued by him for the breach of contract, the 
 subsequent erection of the fences by it without the 
 owner's consent or approbation, was not allowed to 
 
 1 Morse v. Boston and Maine E. R., 2 Cush. 536. 
 
INJURIES TO CATTLE. 353 
 
 affect his right to recover ; and the measure of his 
 damages was fixed at the sum which it would cost to 
 erect the fence according to the agreement. 1 An agree- 
 ment to build and maintain a fence cannot be inferred 
 from the fact that the company built one, as it may- 
 have built it for the better security of its trains, and 
 for the safety of its conductors and passengers. 2 
 Where a special agreement differing from and super- 
 seding the obligation to fence imposed by a statute, 
 is made, a suit for damages in consequence of the 
 failure to fence, it has been held, must be upon 
 the agreement and not in trespass for a violation of 
 the duty imposed by statute. 8 If the owner sustains 
 special injury from the neglect of the company to 
 perform its covenant to maintain fences, he is enti- 
 tled to damages for the same. And where his 
 growing crop is destroyed by cattle in consequence 
 of the breach, he has been held entitled to recover 
 the value of the same at the time of the injury. 4 
 
 Kind op Fence required by Statute. — The 
 company, when obliged by statute to maintain a 
 fence, unless some special kind is required, may 
 build any kind which is usual and fitted for the 
 purpose. The erection of bars, although the ad- 
 
 La wton v. Fitchburg R. R. Co., 8 Cush. 230. 
 
 Morss v. Boston and Maine R. R., 2 Cush. 636 ; Waldron v. Portland, 
 Saco and Portsmouth R. R. Co., 35 Maine, 422. In Morss v. Boston and 
 Maine R. R. Co., it was held that a parol promise of the company to build a 
 fence can be enforced, if at all, only in an action by the person to whom it 
 was made, but not by a subsequent purchaser from him, as that would give 
 it the effect of a covenant running with the land. 
 
 a Hurd v. Rutland and Burlington R. R. Co., 26 Vt. 116. 
 4 Chicago and Rock Island K. R. Co. v. Ward, 16 Dl 522. 
 24 
 
354 INJURIES TO CATTLE. 
 
 joining owner demanded a gate, at a farm crossing, 
 was held to be a compliance with the statute re- 
 quirement of a continuous fence. 1 It has been de- 
 cided in New York, that a Virginia fence, every 
 alternate corner of which projects from three to 
 three and a half feet over its line upon the land of 
 the adjoining proprietor, while the intermediate cor- 
 ners recede a like distance within the line upon the 
 land of the owner, fulfills the requirement of the 
 statute, and neither the company nor its agents are 
 liable in trespass for the erection of such fences. 2 
 
 CONSTRUCTION OF THE STATUTES IMPOSING- THE 
 
 Obligation to maintain Fences. — The statutes im- 
 posing on the company the" obligation to fence its 
 track, have been the subject of judicial construction, 
 determining under what circumstances the obligation 
 exists. In New York, under the general act of 1850, 8 
 providing that the company shall erect and maintain 
 fences, <fec, and farm-crossings " for the use of the 
 proprietors of lands adjoining the road," the duty of 
 the company to make crossings exists as well when 
 it obtains the land by an agreement with the 
 owner, as when it obtains it by the compulsory pro- 
 ceeding provided by the act, and as well when the 
 adjoining proprietors Lave any particular quantity 
 of land to be benefited by the crossing, as when 
 they have farms. 4 
 
 1 Hurd v. Rutland and Burlington R. R. Co. 25 Vt. 116. 
 
 2 Ferris v. Van Buskirk, 18 Barb. 397. 
 
 3 Laws of 1860, o. 240, § 44. 
 
 * Clark v. Rochester, Lockport, and N. Falls R. R. Co. 18 Barb. 350. The 
 
INJURIES TO CATTLE. 355 
 
 Exceptions to the Statutes. — There may be ex- 
 ceptions to the general requirement to fence and 
 build cattle guards, either express or implied. 
 Thus, by the general statute of Maine, the com- 
 pany is not obliged to fence except where its road 
 passes through inclosed or improved lands, and the 
 omission to build a fence where the adjoining 
 land is uninclosed and unimproved, is not imputed 
 to the company as negligence. 1 In New Hamp- 
 shire, by the general law, the company was not 
 bound to make " cattle-guards " where the railroad 
 intersects a highway ; but this is now required 
 by the act of 13th July, 1850. 2 The liability im- 
 posed by the general act of New York, is designed 
 for the benefit of the owners of domestic animals 
 only, and not for that of a servant of the com- 
 pany, who is injured in consequence of its omission 
 to fence. 8 The section of the same act requiring 
 the company to "construct and maintain cattle 
 guards at all road-crossings," is construed to require 
 cattle-guards only at road-crossings, and not at 
 farm-crossings. 4 It bas also been construed not to 
 require cattle-guards in the streets of a village or 
 
 court in this case refused to adjudge specific performance of the obligation 
 to build the crossing, as it appeared that justice would not thereby be done, 
 the expense of building it much exceeding its value to the plaintiff, and left 
 him to his remedy of a suit for damages. The agent of the company is also 
 liable under the statute of New York. Suydam v. Moore, 8 Barb. 358. 
 
 1 Perkins v. Eastern R. R. Co. 29 Maine, 307. 
 
 2 Towns v. Cheshire R. R. Co. 1 Foster 363. 
 
 3 Langlois v. Buffalo and Rochester R. R. Co. 19 Barb. 364. 
 • Brooks v. N. Y. and Erie R. R. Co. 13 Barb. 694. 
 
356 INJURIES TO CATTLE. 
 
 city, where they would be nuisances. 1 Likewise it has 
 "been held in Indiana where the obligation to fence 
 its track is enforced in general terms by statute, 
 that the act does not authorize the company to 
 fence its track where it passes through the streets 
 of a town, and the omission to build the fence is 
 not to be considered negligence. 2 In Illinois, it has 
 been held, that after the condemnation of the land 
 and the payment of damages, the proprietor of the 
 land has no right to obstruct the road, and there- 
 fore cannot make a cattle guard across or under it, 
 whether the company owns the fee simple or the 
 right of way only. 8 
 
 It has been held in New York that the obligation 
 to fence is one which rests on the company own- 
 ing the road, and not on another company which 
 runs its trains over it. Thus, where a railroad com- 
 pany, by an arrangement with another company, 
 run its cars over the road of the latter, and a 
 cow was killed by the locomotive, without any 
 negligence in the running of the cars, but in 
 consequence of the omission to erect cattle-guards 
 or fences, the company owning the locomotive 
 was held not liable to the owner. 4 It was also 
 decided in Vermont that the company owning 
 the road is liable for injuries to cattle in conse- 
 
 1 Vandekar v. Rensselaer and Saratoga R. R. Co. IS Barb. 390; Parker t. 
 Same, 16 id. 315 ; Halloran v. N. Y. and Harlem R. R. Co. 2 E. D. Smith, 257. 
 
 a Lafayette and Indianapolis R. R. Co. v. Shriner, 6 Indiana, 141 ; Hurd 
 •„. Rutland and Burlington R. R. Co. 25 Vt. 124. 
 
 3 Alton and Sangamon R. R. Co. v. Baugh, 14 111. 211. 
 
 ' Parker v. Rensselaer and Saratoga R. R. Co. 16 Barb. 315. 
 
INJURIES TO CATTLE. 357 
 
 quence of a neglect to build fences and cattle-guards 
 as required by statute, although, the road was ope- 
 rated by another company as its lessee. 1 
 
 Negligence of the Company a Question foe 
 the Juitr. — Where negligence is the gist of the 
 action against the company for injuries to cattle, its 
 existence is a question for the jury to determine. 2 
 
 Burden of Proof. — The burden of proof is on 
 the plaintiff to prove negligence on the part of the 
 company, where its negligence is necessary to sustain 
 an action against it for injuries to his cattle ; and the 
 injury itself is not prima facie evidence of negli- 
 gence. 8 But in New Hampshire it has been held 
 that where the cattle are rightfully on the track, and 
 are injured by a train of cars, the injury is prima 
 facie evidence of the negligence of the company, on 
 which the burden of proof is to show that the injury 
 was not done by its fault, but by some accident or 
 fault of the owner.* 
 
 1 Nelson v. Vermont and Canada R. R. Co. 26 Vt. 717. But the lessee 
 may be liable also : Clement v. Canfield, Supreme Ct. of Vt, Dec. T. 1856 ; 
 19 Law Rep. (Dee. 1856), 460 ; see ante, eh. x. p. 244. 
 
 s Morse v. Rut. and Bur. R. R. Co. 27 Vt. 49 ; ante, cli. xii. p. 282. 
 
 " Waldron v. Portland, S. & P. R. R. Co. 35 Maine, 422 ; Lyndsay v. 
 Conn, and Passumpsic Rivers R. R. Co. 27 Vt. 643 ; Terry v. N. Y. Central 
 R. R. Co. 22 Barb. 574; Galena and Chicago Union R. R. v. Loomis, 13 111. 
 548 ; 111. Central R. R. Co. v. Re'edy, 17 id. 580 ; Herring v. Wilmington and 
 Raleigh R. R. Co. 10 Iredell, 402 ; Phil, and Reading R. R. Co. v. Yeiser, 8 
 Barr, 366 ; Rood v. N. Y. and Erie R. R. Co. 18 Barb. 85 ; Aldridge v. 
 Great Western R. Co. 3 Man. & Gr. 515; ante, ch. xiv. p. 314; contra, 
 S. C. R. R. Co. v. Danner, 4 Rich. 329. See North Eastern R. R. Co. v. 
 Sineath, 8 id. 194. 
 
 * White v. Concord R. R. Co. 10 Foster, 188. The two authorities cited 
 by the court in no way sustain its position. In Suydam v. Moore, 8 Barb. 
 
358 injuries to cattle. 
 
 Form of Action against the Company for 
 Injury to Cattle. — Trespass and not case is the 
 proper remedy against the company for injuries to 
 cattle, resulting from the negligence of its servants. 1 
 
 Power of the Legislature to require a Com- 
 pany to maintain Fences. — The power of the State 
 legislature to impose on the company the duty of. 
 maintaining fences and cattle-guards along its line, by 
 a statute enacted subsequently to the acceptance of 
 the charter, has been discussed in a previous chapter. 4 
 
 358, the company was bound by statute to fence, and not having performed 
 the duty, was liable for damage to cattle in consequence of its neglect, 
 whether negligent or not. In Ellis v. It. R. Co. 2 Iredell, 138, the presump- 
 tion was raised under special circumstances, and did not arise from the injury 
 alone. See Herring v. "Wilmington and Raleigh R. R. Co. 10 id. 402. 
 
 1 Illinois Central R. R. Co. v. Reedy, 11 id. 580; Sharrod v. London and 
 North "Western R. Co. 4 Eng. L. and Eq., 401. See ants, ch. x. pp. 234, 
 235. 
 
 s Ante, ch. iii. pp. 41, 45. 
 
CONTRACTS OF RAILROAD COMPANIES. 359 
 
 CHAPTEK XVI. 
 
 CONTRACTS OF RAILROAD COMPANIES. 
 
 The contracts of a railroad company, like those 
 of an individual, to be valid, require the essentials 
 of a legal contract, — to wit, the existence, assent, 
 and capacity of the parties, a lawful and valid con- 
 sideration, and a lawful subject-matter. 
 
 "When the Company is capable of taking a 
 deed. — It is not necessary in order to give validity 
 to a deed to a railroad company, even upon condi- 
 tions, that when it is delivered the company be com- 
 pletely organized, or that its officers be chosen. 
 Where this had not been done, a deed delivered to 
 the company after the issuing of letters patent by 
 the governor in compliance with the requisition of an 
 act of Assembly creating a corporation, was held to 
 be valid and to vest the estate in it. It was suggested 
 by the court that a deed to a company operating a 
 railroa 1, which was considered a public highway, is 
 valid without any specific grantee in esse at the time 
 of its delivery to whom the fee could be conveyed. 1 
 
 1 Rathbone v. Tioga Navigation Co., 2 W. & S. 1i ; see ante, ch. v., pp. 
 69, 60. 
 
360 CONTRACTS OF RAILROAD COMPANIES. 
 
 Assent oe the Parties. — The assent of the com- 
 pany to the terms of an agreement is necessary to 
 bind it. This may be express, as where by the 
 proper agent it makes a proposition which is 
 accepted by the other party while it is outstanding, 
 or where it accepts a proposition made to it while 
 yet open. The acceptance of a deed by an authorized 
 agent, is an acceptance of it by the corporation and 
 an assent to the terms thereof on its part. 1 Its assent 
 may be implied from usage ; as where it is its custom 
 to receive property for transportation deposited at 
 a dock or station, without any special notice of the 
 deposit, its acceptance of the goods thus deposited 
 in the usual manner is implied, and the agreement 
 to carry them is complete. 2 So, where goods have 
 arrived, and their arrival has been brought to 
 the knowledge of the owner, who has been 
 requested to take them away, a contract to store 
 them may be implied from the practice of the 
 company, and the conduct of its agents at the 
 time. 8 But either an actual acceptance or one 
 fairly implied must be made out, to hold the com- 
 pany to a proposition made to it. Thus, where a 
 proposal was made, by a contractor, to the company 
 in consequence of an advertisement published by it, 
 the reference by the directors of that and others of 
 the same kind to the executive committee and the 
 superintendent to report upon them, was held not to 
 
 1 Western R. R. Corp. o. Babcock, 6 Met. 346. 
 
 * Merriam v. Hartford & New Haven R. R. Co., 20 Conn. 854. 
 
 3 Smith v. Nashua and Lowell R. R, 7 Foster, 86. 
 
CONTRACTS OF RAILROAD COMPANIES. 361 
 
 be an acceptance ; and the declarations of individual 
 directors, made immediately after the close of the 
 meeting at which the proposals were submitted, to 
 the effect that the proposal in question had been 
 accepted, were held not to be competent evidence of 
 that fact. 1 The company cannot enforce as a con- 
 tract, a proposition made by the other party, unless 
 assented to while it was outstanding. The acceptance 
 by the company' of a proposition, in order to bind 
 the party making it must be made within the 
 time that, under the circumstances of the case, it is 
 presumed to be open. 2 Thus, where a landowner 
 offered a way-leave on certain terms to the pro- 
 prietors of a railway, provided it should pass 
 through his land, which offer was made in March, 
 1843, but the company did not stake out the way- 
 leave till the close of that year or the beginning of 
 the next, and did not make the road till the close 
 of the year 1844, and it was not open for traffic till 
 the year 1845, these acts of the company were held 
 to be too much delayed to constitute an acceptance 
 of the offer. 8 
 
 Mutuality of Obligation. — As a general rule, 
 there must be a mutuality of obligation to bind 
 either party. 4 Thus, where a party agreed with a 
 railroad company to carry for it between certain 
 
 1 Soper «. Buffalo and Rochester R. R. Co., 19 Barb. 310. 
 ** 1 Parsons on Cont. 399-408 ; Beckwith v. Cheever. 1 Foster, 41. 
 " Meynell v. Surtees, 31 Eng L. & Eq. 475. 
 
 4 1 Parsons on Cont. 374-376, 899-403 ; Gov. and Co. Copper Miners v. 
 Fox, 8 Eng L. &, Eq. 420, 426, notes. 
 
362 CONTRACTS OF RAILROAD COMPANIES. 
 
 places all the goods which should be presented to 
 him for that purpose, and the agreement was to 
 continue for twelve months, he had no right of 
 action ■ against the company for discontinuing busi- 
 ness during the time, and ceasing to offer him goods 
 for carriage. 1 Where the company, when not bound 
 by the agreement, has yet acted upon the proposi- 
 tion of the other party and made the expenditures 
 contemplated in it, this has been held not to amount 
 in itself to an acceptance, so as to entitle the com- 
 pany to enforce the contract. Thus, where it was 
 alleged in a declaration that an agreement was en- 
 tered into between a company and an individual, by 
 which the latter stipulated, that if the former would 
 locate its road and terminate it at a certain place, 
 and should require certain lands/ in the vicinity 
 of such terminus for the purposes of the road, he 
 would pay the damages which should be appraised 
 to the owners of the lands ; and the plaintiffs then pro- 
 ceeded to aver that the agreement being so made, af- 
 terwards, to wit, on, &c, at &c.,in consideration there- 
 of, and that the plaintiffs had promised to perform on 
 their part, the defendant promised to perform on his 
 part, and further, that the plaintiffs having after- 
 wards located their road at the place designated, 
 required the lands described in the agreement, and 
 the damages had been appraised, — it was held that 
 the promise of the individual was not binding, inas- 
 much as by the agreement no obligation was incurred 
 by the company to locate the road as a consideration 
 
 1 Burton v. Great N. R. Co., 9 Exch. 501. 
 
CONTRACTS OF RAILROAD COMPANIES. 363 
 
 for the defendant's promise, and that the fact that 
 the company afterwards located the road agreeably 
 to the terms of the proposition, was of itself nothing. 1 
 But a proposition may be made to the company in 
 such terms and under such circumstances, that the 
 party making it authorizes the acts of the company, 
 on account of which he offers to contribute money 
 or to do certain things, so that he will be bound, if 
 the company within a reasonable time, or such time 
 as is contemplated by the parties, acts upon his prop- 
 osition. This may occur where a party offers to pay 
 an incorporated company a certain sum to induce 
 the location of its road at a particular place, which 
 is afterwards adopted by it within the time contem- 
 plated. 2 So, also, it has been held that where a 
 party agrees by a writing under seal to permit a rail- 
 road company to construct a road over his land, and 
 also agrees to convey his land to it for a certain sum, 
 after the road shall be definitely located, with a con- 
 dition in the deed of conveyance that the deed shall 
 be void when the road shall cease or be discontinued, 
 specific performance of such agreement may be de- 
 creed, after the road is constructed over the land, 
 although the corporation did not expressly bind 
 itself to take or to pay for the land. 8 Where a 
 
 1 Utica and Schenectady R. R. Co. ■„. Brinckerhoff, 21 Wend. 1S9 ; quaere, 
 see comments on this case, ante, ch. v. p. 71, note (4); see also N. Y. and N. 
 H. R. R. Co. v. Pixley, 19 Barb. 428; Charlotte and S. C R. R. Co., v. 
 Blakeley, 3 Strob. 245, 253. 
 
 ' Cumberland Valley R. R. Co. v. Baab, 9 Watts, 458 : see cases of Sub- 
 scriptions to Charitable Institutions, 1 Parsons on Cont. 377. 
 
 8 Western R. R. Corp. v. Babcock, 6 Met. 846. 
 
364 CONTRACTS OF RAILROAD COMPANIES. 
 
 party, in letters signed by him, and addressed to the 
 agent of the company, stated the conditions upon 
 which he would consent to the building of its road 
 across his land, and upon a compliance with which 
 he agreed to convey the title thereto, and the com- 
 pany manifested its assent to the conditions by com- 
 mencing operations on the road with his knowledge, 
 it was held that the company had thereby accepted 
 his proposition, and incurred a legal obligation to 
 perform the requirements on its part, which was a 
 valid and sufficient consideration for its agreement. 1 
 Where one company in pursuance of statute au- 
 thority reserved in the charter, enters on the track 
 of another, paying compensation for the use, and the 
 company owning the track makes expensive and per- 
 manent arrangements for its accommodation, the 
 entry and connection do not create a perpetual con- 
 tract on the part of the company so accommo- 
 dated to use the road ; and it may withdraw from 
 the use of the same without subjecting itself to lia- 
 bility for damages in consequence of such with- 
 drawal. 2 
 
 Offers on Time. — A mere proposition may be 
 withdrawn at any time before acceptance, unless 
 there is an agreement, founded on a consideration, to 
 keep it standing for a certain time. But whether 
 made by the company or the other party, if accepted 
 (not having been already withdrawn) within a rea- 
 sonable time, that is, such time as under the circum- 
 
 1 N. T. and N. H. R. R. Co. o. Pixley, 19 Barb. 428. 
 
 * Boston and Lowell R. R. Corp. v. Boston and Maine R. R. 5 Cush. 375. 
 
COTJTEAOTS OF RAILROAD COMPANIES. 365 
 
 stances of the case, it is presumed to be left standing 
 open, it constitutes, with the acceptance, a contract 
 binding on both parties. 1 "What is such time within 
 which it is to remain open, may be fixed by the 
 parties. Thus, a party may offer to the company, 
 or the company may offer to the party, certain 
 terms, coupling them with the offer that they may 
 remain open a certain specified time. If they are 
 then accepted within that period, not having been 
 previously withdrawn, a contract is complete. The 
 party, however, making the offer, may, unless it is 
 under seal or founded on a consideration, withdraw 
 the same at any time within the prescribed period, 
 provided no acceptance has already been made. 
 There being no consideration for the offer, and no 
 contract having been concluded, it may be revoked. 
 Thus, where some land-owners signed a writing by 
 which they agreed to convey to a railroad company 
 a lot of land " if the said corporation would take 
 the same within thirty days from that date," which, 
 within the thirty days was extended to thirty more, 
 and the offer within such extended time, not having 
 been previously withdrawn, was accepted by the 
 company, such offer and acceptance constituted a 
 valid contract, specific performance of which was en- 
 forced in equity. 2 
 
 1 1 Parsons on Cont. 399 — 408 ; Cope v. Albinson, 16 Eng. L. and Eq. 
 470 and notes. 
 
 * Boston and Maine R. R. v. Bartlett, 3 Cush. 224. Fletcher, J. : " In the 
 present case, though the writing signed by the defendants was but an offer, 
 and an offer which might be revoked ; yet while it remained in force and 
 unrevoked, it was a continuing offer during the time limited for acceptance ; 
 
366 CONTRACTS OF RAILROAD COMPANIES. 
 
 Assent by Letter. — There is no reason why a 
 railroad company, like an individual, may not ex- 
 press its assent by letters sent by mail by its 
 
 and, during the whole of that time, it was an offer every instant ; but as 
 soon as it was accepted, it ceased to be an offer merely, and then ripened 
 into a contract. The counsel for the defendants is most surely in the right, 
 in saying that the writing when made was without consideration, and did 
 not therefore form a contract. It was then but an offer to contract ; and 
 the parties making the offer most undoubtedly might have withdrawn it 
 at any time before acceptance. 
 
 "But when the offer was accepted, the minds of the parties met, and the 
 contract was complete. There was then the meeting of the minds of the 
 parties, which constitutes and is the definition of a contract. The accept- 
 ance by the plaintiffs constituted a sufficient legal consideration for the en- 
 gagement on the part of the defendants. There was then nothing wanting 
 in order to perfect a valid contract on the part of the defendants. It was 
 precisely as if the parties had met at the time of the acceptance, and the 
 offer had then been made and accepted, and the bargain completed at once. 
 
 " A different doctrine, however, prevails in France, and Scotland, and 
 Holland. It is there held, that whenever an offer is made, granting to a 
 party a certain time within which he is to be entitled to decide, whether he 
 will accept it or not, the party making such offer is not at liberty to with- 
 draw it before the lapse of the appointed time. There are certainly very 
 strong reasons in support of this doctrine. Highly respectable authors 
 regard it as inconsistent with the plain principles of equity, that a person, 
 who has been induced to rely on such an engagement, should have no 
 remedy in case of disappointment. But, whether wisely and equitably or 
 not, the common law unyieldingly insists upon a consideration, or a paper 
 with a seal attached. 
 
 " The authorities, both English and American, in support of this view of 
 the subject, are very numerous and decisive ; but it is not deemed to be 
 needful or expedient to refer particularly to them, as they are collected and 
 commented on in several reports, as well as in the text books. The case of 
 Cooke v. Oxley, 8 T. R. 653, in which a different doctrine was held, has oc- 
 casioned considerable discussion, and, in one or two instances, has probably 
 influenced the decision. That case has been supposed to be inaccurately 
 reported ; and that in fact there was in that case no acceptance. But, how- 
 ever that may be, if the case has not been directly overruled, it has cer- 
 tainly in later cases been entirely disregarded, and cannot now be considered 
 as of any authority." 
 
CONTRACTS OP RAILROAD COMPANIES. 367 
 
 authorized agents. 1 A contract is closed by letter 
 when the party to whom is addressed a letter con- 
 taining a proposition, in dae time deposits a letter 
 in the mail accepting it. Until it has been so 
 accepted, the offerer may revoke it by a notice 
 which reaches the party to whom it is made, before 
 the acceptance is thus made. But if the notice of 
 revocation does not reach the party to whom it is 
 made until after it has been accepted, such notice 
 will not amount to a revocation. 2 Bat no contract 
 will be created, if the acceptance is not deposited in 
 the mail in due time, either reasonable time or 
 within the time prescribed in the letter making the 
 offer, or if the acceptance varies from the terms of 
 the offer. 8 Where the company's offer by letter 
 is once rejected, although orally, the party making 
 it cannot be bound by a subsequent acceptance 
 unless the offer is renewed.* 
 
 Consideration op the Contract. — A consider- 
 ation is another essential element of a promise made 
 
 ' N. T. and N. H. R. R. Co. v. Pixley, 19 Barb. 428. 
 
 ' Adams v. Lindsall, 1 B. & Aid. 681 ; Dunlop v. Higgins, 1 House of 
 Lords Cases, 381 ; Potter v. Sanders, 6 Hare, 1 ; Mactier v. Frith, 6 Wend. 
 103 ; Brisban v. Boyd, 4 Paige, 17 ; Vassar v. Camp, 14 Barb. 341 ; 1 Ker- 
 nan, 441 ; Levy v. Cohen, 4 Geo. 1 ; Palo Alto, Daveis, 344 ; Hamilton v. 
 Lycoming Mut. Ins. Co., 5 Barr, 339 ; Tayloe v. Merchants' Fire Ins. Co., 9 
 Howard, 390. 
 
 8 1 Duerlns. 67 ; Routledgev. Grant, 3 Car. & P. 267 ; S. C. 4 Bing. 653 ; 
 Hall v. Hall, 12 Beavan, 414 ; Eliason i>. Henshaw, 4 Wheat. 225 ; Averill 
 v. Hedge, 12 Conn. 424; Martin v. Black, 21 Ala. 721. 
 
 * Sheffield Canal Co. v. Sheffield and Rotherham R Co , 3 Eng. Rail. 
 Cases, 121. 
 
368 CONTRACTS OF RAILROAD COMPANIES. 
 
 by or to a railroad company, in order to make it 
 enforceable. 1 There must be to sustain an agreement 
 some benefit to the party making it or some injury 
 to the party to whom it is made, moved by an 
 express or implied request from the promisor. The 
 law does not undertake to enforce gratuitous 
 promises against an individual, still less against a 
 civil corporation whose power to make them may 
 well be questioned. The classes of considerations 
 are various, consisting of labor, goods, money, for- 
 bearance or compromise of a debt, or any matter of 
 value. The consideration may be express or implied. 
 It must be lawful and possible, but need not be 
 adequate. Specific performance of a contract will 
 not be denied on ground that the consideration is 
 inadequate unless the inadequacy is so gross, and 
 the proof of it so clear, as to lead to a reasonable 
 conclusion of fraud or mistake. 2 The defence of 
 want of consideration cannot be set up against the 
 bonctrfide holder of negotiable paper indorsed before 
 maturity. It is not admitted to invalidate agree- 
 ments under seal, in the case of which the neces- 
 sity of a consideration is usually dispensed with. 
 Whether a corporation is bound by gratuitous 
 promises under seal may well be questioned, on the 
 ground that the contracting of such obligations is 
 beyond the scope of its authority. 8 The location of 
 
 1 See articles on the Consideration of a Contract, in the American Law 
 Register for March, May, and July, 18B4, by the Author. 
 
 2 Western R. R. Corp. v. Babcock, 6 Met. 846. 
 
 3 Coleock v. L. C. and C. R. R. Co., 1 Strob. 329. 
 
CONTRACTS OF RAILROAD COMPANIES. 369 
 
 a railroad on a certain route is a valid consideration 
 for a promise to pay the company a certain sum of 
 money. 1 A promise to pay money to a corporation 
 in consideration of its incurring expenditures, is 
 binding when they have been incurred on faith of 
 it and before its revocation. 2 Where the stock 
 of a railroad company is subscribed for, the sub- 
 scriber, on payment of the amount subscribed, is 
 entitled to shares therein, and the right and interest 
 which he thereby acquires in the property of the 
 company are a valid consideration for his promise to 
 pay the amount subscribed. 8 Even before the 
 organization of the company, the agreement of sub- 
 scribers to associate together under an act of the 
 legislature to accomplish the purpose designed, is 
 regarded as a sufficient consideration for the promise 
 of each to pay the amount subscribed. 4 
 
 Form of Contract. — As to the mode in which 
 corporations may contract, there is a conflict between 
 the English and American authorities. In England, 
 it is a general rule that a corporation cannot con- 
 
 1 Cumberland R. R. Co. a. Baab, 9 Watts, 458 ; Western R. R. Corp. v. 
 Babeock, 6 Met. 346 ; see Utica and Schenectady R. R. Co. v. Brinckerhoff, 
 21 Wend. 139 ; Charlotte and S. C. R. R. Co. v. Blakely, 3 Strobh. 245. 
 
 * Barnes v. Perine, 9 Barb. 202; S. C, 15 id. 249 ; 2 Kernan, 18; Hamil- 
 ton College v. Stewart, 2 Denio, 408 ; S. C, 1 Comst. 581 ; Wilson v. Baptist 
 Education Society, 10 Barb. 309. 
 
 * Kennebec and Portland E. R. Co. v. Jarvis, 34 Maine, 360 ; see Thomp- 
 son v. Page, 1 Met. 565 ; Ives v. Sterling, 6 id. 310 ; see ante, ch. v., p. 101. 
 
 * Kennebec and Portland R. R. Co. v. Palmer, 34 Maine, 366 ; ante, ch. 
 v., p. 60. 
 
 25 
 
370 CONTRACTS OP RAILROAD COMPANIES. 
 
 tract except under its corporate seal ; but this rule, 
 even there, has to a great extent been nullified by 
 the exceptions admitted to it which dispense with 
 the corporate seal in matters of frequent occurrence, 
 and trivial importance or where the affixing of the 
 seal would be impracticable, or perhaps where the 
 corporation has received the benefit of the contract. 1 
 This general rule is discarded in this country, where 
 the contracts of a corporation are assimilated to 
 those of individuals. It is not required to use a 
 seal where an individual is not. Its acts, evidenced 
 by the vote of its managing directors, are as com- 
 plete authority to its agents as the most solemn act 
 done under the corporate seal. So also, it is bound 
 not only by express promises, but also by implied 
 promises, arising from the duties imposed on it or 
 from the benefits received by it, in the same manner 
 as individuals. 2 Its implied promises will be pre- 
 sumed to be made with the party in interest. Thus, 
 as the husband has no legal interest in his wife's 
 personal security, a contract of the company for that 
 
 1 See Cox v. Midland Counties B. Co., 3 Exch. 268; Cope v. Thames 
 Hayen Dock and R. Co., 3 id. 844; Diggle v. London and Blackwall B. Co., 
 5 id. 450; Pinlay v. Bristol and Exeter E. Co., 7 id. 409; Pauling v. London 
 and N. W. R. Co., 8 id. 867 ; Lowe v. London and N. W. R. Co., 21 Law 
 Jour. 361 ; Stuart v. London and N. W. E. Co., 10 Eng. L. & Eq. 57 ; Lind- 
 say v. Great North E. Co., 19 id. 87. In England, by statute the contracts 
 of a railroad company are bow valid when made in the same form in which 
 if between private persons, they would be valid. 8 Victoria, c. 16, § 97 ; 
 Lowe v. London and N. W. E. Co., 14 Eng. L. & Eq. 18; Pauling v. London 
 and N. W. E. Co., 22 id. 560. 
 
 2 2 Kent Com. 290, 291 ; Angell and Ames on Corp., ch. viii., §§ 228, 
 238 ; Smith v. Nashua and Lowell R. E. Co., 7 Foster, 96-98. 
 
CONTRACTS OF RAILROAD COMPANIES. 371 
 
 purpose will be presumed to be made with her. 1 
 Promises to it as well as by it may be implied. 
 Thus, where a party signs a paper subscribing for 
 stock m the company, a promise to pay for the same 
 may be implied from the act of taking stock. 2 
 
 ^ Statute of Frauds.— The contracts of a corpora- 
 tion, like those of a natural person, when within the 
 statute of frauds, must be in writing in order to be 
 valid. 8 
 
 What Seal makes a Specialty. — An impression 
 of the seal of the company upon the paper of instru- 
 ments issued by it as bonds, and purporting to be 
 under seal, is a sufficient seal to make the instru- 
 ments specialties on which an action of debt may be 
 maintained. 4 
 
 Negotiable Bonds. — The bonds of the company 
 payable to bearer, although not negotiable paper 
 like promissory notes and bills of exchange under 
 the law merchant, are still, to facilitate the purposes 
 of their issue, and, in accordance with common 
 usage, allowed the privileges of negotiable paper. 
 They may be transferred by delivery so as to confer 
 a complete title on a bona-fide purchaser, free from 
 any equities subsisting between the seller and the 
 
 1 Fuller v. Naugatuck R. R. Co., 21 Conn. 557. 
 a Hartford and N. H. R. R. Co. v. Kennedy, 12 Conn. 499. 
 ' Reynolds v. Dunkirk and State Line R. R. Co., 11 Barb. 613. 
 4 Allen v. Sullivan R. R. Co. 32 N. H. 446. 
 
372 CONTRACTS OF EAILEOAD COMPANIES. 
 
 company, and to enable him to sue upon them in his 
 own name ; and the possession of them is prima facie 
 evidence of ownership. 1 
 
 Peomissoey Notes and Bills of Exchange. — A 
 corporation may bind itself by a negotiable promis- 
 sory note or bill of exchange, as well as by any other 
 form of contract, for debts which it is authorized to 
 contract in the course of its legitimate business. It 
 is not necessary to the existence of this power that it 
 be specifically conferred in the charter, but it is inci- 
 dent to the power to contract debts. 2 There can be 
 
 1 Morris Canal and Banking Co. v. Fisher, 1 Stockton Ch. 667; 3 Am. 
 Law Eeg. 423 ; Carr v. Le Fevre, 27 Penn. State, 413 ; Mechanics' Bank v. 
 N. Y. and N. H. E. E. Co. 3 Kernan, 625 ; 4 Duer, 582 ; 1 Parsons on Cont. 
 240. There is a newspaper report of the cases of Craig and Elliott v. City 
 of Vicksburg, recently decided by the High Court of Errors and Appeals of 
 Mississippi, in which the following points were decided : 
 
 1. That a bond payable to bearer passes by dellvei'y from hand to hand, 
 like .a bank note, or a promissory note payable to bearer, and that the 
 holder of such a bond claims title thereto, simply from the mere fact of his 
 being the holder or bearer, by virtue of the contract of the maker to pay 
 the bearer, and that such a holder may maintain an action on such a hond 
 in his own name, without tracing his title thereto through the party to 
 whom it was originally issued by the maker. 
 
 2. That in an action on such a bond, the plaintiff need allege nothing but 
 the act of the execution of the bond by the maker, and that he is the bearer 
 thereof. The fact of his being the holder, establishes & prima fade right in 
 him to recover ; and if the maker wishes to set up in defence of the suit on 
 the bond any want of consideration, failure of consideration, payment, or 
 other defence to the bond, as between himself and the party to whom it was 
 originally issued, he must allege in his pleadings, and prove on the trial, 
 that the plaintiff, the holder of the bond, had notice of such defence when 
 he acquired the bond. 
 
 But Bee Dixon v. Bovill, 2 Jurist, N. S. 933, 934, 935,— per Lord Cran- 
 worth, Chancellor. 
 
 ' Came v. Brigham, 39 Maine, 35 ; Moss v. Oakley, 2 Hill, 265 ; Kelly 
 v. Mayor of Brooklyn, 4 id. 263 ; Clarke o. School District, 3 R. I. 199 ; 
 Angell <& Ames on Corp. ch. viii. § 267. 
 
CONTRACTS OF RAILROAD COMPANIES. 3*73 
 
 no question as to the power of a railroad company, 
 even without a special power in its charter, to bind 
 itself by such negotiable paper for debts which it is 
 authorized expressly or by implication to contract, 
 and its liability on such paper, when signed by its 
 duly authorized agents on its behalf. 1 
 
 Contracts made by Agents. — A corporation is 
 bound by the contracts of its authorized agents act- 
 ing within the scope of their authority, both express 
 and implied ; and neither the authority of the agents 
 nor the contracts made by them need be under the 
 corporate seal. And its liability for their acts arises 
 equally where the contracts made by them were previ- 
 ously authorized or subsequently ratified — expressly, 
 or impliedly by accepting benefits under them or 
 otherwise acting upon them. 2 But it is not liable 
 for the contracts of its agent3 beyond the scope of 
 their authority, which it has not ratified. 8 Thus, 
 a station master has no implied authority to bind 
 the company by a contract for surgical attendance 
 on an injured passenger. 4 The company will be 
 bound by the contracts of its agents which are con- 
 trary to its instructions and regulations, where it 
 
 ' In Mitchell v. Rome R. R. Co. 11 Geo. 574, the company having the 
 power " to make contracts," it was held that it might take a promissory 
 note, and having taken one, the note was to be presumed to have been 
 taken within the scope of its business. 
 
 ' 2 Kent, Com. 289-291 ; Angell <!t Ames on Corp. ch. viii. §§ 238-240 ; 
 ch. ix. §§ 282, 283, 297, 304 ; 1 Parsons on Cont. 118. 
 
 ' Mechanics' Bk. v. N. Y. and N. H. R. R. Co. 3 Kernan, 631-635 ; S. C 
 4 Duer, 480 ; 2 Kent, Com. 291 ; Angell & Ames' Corp. ch. ix. § 297. 
 
 4 Cox v. Midland Counties R. Co. 3 Exch. 268. 
 
374 CONTRACTS OF RAILROAD COMPANIES. 
 
 adopts or allows a course of business inconsistent 
 with those instructions and regulations, and indica- 
 ting that it has conferred on them a more extensive 
 authority. 1 
 
 The agents of a corporation, as already stated, 
 need not be appointed under seal; but when ap- 
 pointed by the vote of the directors or other man- 
 aging board, or otherwise duly authorized or recog- 
 nized as such by the permission and acceptance of 
 their services, or the recognition or confirmation of 
 their acts, or in general by holding them out as au- 
 thorized, the company is bound by their acts within 
 the scope of their authority. And their authority 
 need not be under seal where they are appointed to 
 convey the real estate of the corporation, or to do 
 any other act. 2 Where the charter prescribes a 
 mode in which its officers and agents must act or 
 contract, that mode must be pursued in order to bind 
 the corporation. 8 In Connecticut, it is held that 
 although a particular manner is prescribed, it may 
 by practice render itself liable on contracts made in 
 a different way. 4 So, like natural persons, a corpora- 
 tion cannot take or convey real estate but by deed, 
 and the seal must then be affixed by a person duly 
 authorized, or it will not be the seal of the corpora- 
 tion. The affixing of the common seal is presumed 
 
 1 Smith v. Nashua and Lowell R. R. 1 Foster, 86, 98. 
 , a Angell & Ames, Corp. ch. vii. § 224; ch. ix. § 283 ; Troy Turnpike and 
 R. R. Co. a. Chesney, 21 Wend. 296. 
 
 s Angell & Ames on Corp. ch. ix. § 291 ; ch. viii. § 263 ; 2 Kent, Com. 
 290. 
 
 4 Bulkley v. Derby Fishing Co. 2 Conn. 252 ; Witte v. Derby Fishing Co. 
 2 id. 260. 
 
CONTRACTS OF RAILROAD COMPANIES. 375 
 
 to have been done with authority. 1 The deed of a 
 corporation, to be effectual as such, must be execu- 
 ted by the proper agent in its name, and not in his 
 own. 2 This strictness of formality is dispensed with 
 in the case of contracts not under seal, where the cor- 
 poration will be bound by the authorized contracts 
 of its agents if from the whole transaction it appears 
 to have been the intention of the parties that the 
 corporation, and not its agents, should be bound. 8 
 The declarations or acts of a director will not bind 
 the company unless they are within the scope of his 
 ordinary powers, or of some special agency relative to 
 the subject-matter. 4 Nor will it be bound by the 
 unauthorized contracts, or unsanctioned conduct and 
 declarations of its individual stockholders. 5 The 
 admissions of its agents bind it only when they are 
 made in the course and as a part of the transaction 
 which is within their authority, but not when made 
 subsequently. 6 
 
 Subject-Matter of Contracts. — There are several 
 kinds of contracts made by railroad companies which 
 
 1 Angell <fe Ames on Corp. oh. vii. §§ 219, 223. 
 
 s Sherman v. N. Y. Central R. R. Co. 22 Barb. 239 ; Brinley v. Mann, 2 
 Cush. 837 ; 1 Parsons' Cont. 118-120. See Angell & Ames on Corp. eh. vii. 
 § 225 ; eh. viii § 264. 
 
 * Angell <Ss Ames on Corp. eh. ix. §§ 293, 294. 
 
 4 Soper v. Buffalo and Rochester R. R. Co. 19 Barb. 310; Norwich and 
 Worcester R. R. Co. v. Cahill, 18 Conn. 484; Angell & Ames on Corp. ch. 
 ix. § 309. 
 
 6 Angell <fc Ames on Corp. ch. viii. § 239 ; eh. ix. § 309 ; Mitchell v. 
 Rome R. R. Co. 17 Geo. 574. 
 
 " Stiles v. Western R. R. Corp. 8 Met. 44. 
 
376 CONTRACTS OF RAILROAD COMPANIES. 
 
 have been the subject of litigation, and will now be 
 considered. 
 
 Purchase of Eeal Estate. — The contracts of the 
 company by which it acquires a right of way and 
 real estate for its purposes, have already been dis- 
 cussed. 1 , 
 
 Agreements with Contractors. — There are sev- 
 eral points in relation to the agreements between 
 a railroad company and its contractors, employed to 
 build sections of its road, which have been brought 
 under judicial examination. 
 
 Failure op the Contractor to complete the 
 work within the Time fixed. — It may happen that 
 the contractor fails to complete his work within the 
 time specified in the contract. If he still proceeds 
 with the assent of the company, and nothing is said 
 about the rate of compensation, no matter which 
 party is the innocent cause of the delay, he has been 
 held confined to that fixed in the contract, for the 
 work done beyond the limited time. But if the 
 company deliberately and willfully obstructs him in 
 his work, he is entitled to recover for the value of 
 his labor under a quantum meruit count, without 
 being confined to the rate fixed in the special con- 
 tract. 2 Where the contract was under seal, and to 
 
 1 Ante, ch. vii. 
 
 J Merrill v. Ithaca and Owego R. R. Co., 16 Wend. 586; Barker v. Troy 
 and Rutland R. R. Co., 27 Vt. 766; see Dubois v. Delaware and Hudson 
 Canal Co., 4 Wend. 285; 12 id. 334; 15 id. 87. 
 
CONTRACTS OF RAILROAD COMPANIES. 377 
 
 be performed within a fixed time, subsequently 
 enlarged by parol, assumpsit and not covenant 
 is the proper remedy for a breach. 1 Where the 
 contractor has not fully performed his part of the 
 contract, he may under certain circumstances be en- 
 titled to recover for the part performance, subject to 
 a deduction for damages on account of his default. 2 
 The work may, after it has been commenced, be 
 suspended by mutual consent, without the contract 
 being rescinded, so that the contractor will be enti- 
 tled to complete it on its being resumed ; and if the 
 company employs another contractor, it will be 
 responsible in damages to the one first employed. 3 
 
 Provision for Forfeiture of unpaid install- 
 ments, AND VESTING DISCRETION WITH THE ENGI- 
 NEER. — In agreements between a railroad company 
 and its contractors, there is usually a provision that 
 the company, but more commonly the engineer, or 
 some one of its agents, shall be authorized to decide 
 finally, or during the progress of the work, upon 
 the amount, value, and character of the work done, 
 the sum due to the contractor on account thereof, 
 the manner in which it shall be performed, and other 
 matters in relation thereto, and to annul the con- 
 tract if in the opinion of such person the contractor 
 has not complied with the terms of the agreement. 
 
 1 Sherman v. Rut. and Bur. R. R. Co., 24 Vt. 847 ; Barker v. Troy and 
 Rutland R. R. Co. 27 id. 774. 
 
 ' Barker v. Troy and Rutland R. R. Co., 27 Vt. 766 ; Danville Bridge 
 Co. v. Pomroy, 16 Penn. State, 161. 
 
 1 Fowler v. Kennebec and Portland R. R. Co., 31 Maine, 197. 
 
378 CONTRACTS OF RAILROAD COMPANIES. 
 
 A provision is usually inserted, giving the company 
 a right to reserve a part of the price of the work 
 already performed, at the time of the periodical 
 payments, which unpaid portion shall be forfeited 
 to the company on the contract being thus annulled. 
 Such provisions have been considered reasonable, 
 and, in the absence of fraud or imposition, have been 
 enforced by the courts. They are efficient to ensure 
 diligence and fidelity on the part of the contractor, 
 whose neglect is likely to be productive of great 
 damage to the company throughout its whole line, 
 and also to enable it to prosecute its enterprise to a 
 speedy conclusion without having it arrested by dis- 
 agreements with numerous contractors. They are 
 important to enable it to understand the state of its 
 accounts, and to close them beyond revision in the 
 progress of the work. The fact, that the discretion 
 to annul the contract, and to decide on its proper 
 performance, is vested in an interested party, if ex- 
 ercised in good faith, does not operate to make the 
 provision void ; and the forfeiture of an unpaid 
 installment in case of a breach of the agreement by 
 a contractor, when distinctly stipulated, has been 
 regarded as liquidated damages, and not as a pen- 
 alty. 1 Such stipulations have been sustained in an 
 elaborate decision in England, by the House of 
 Lords, where the sum to be forfeited by the con- 
 tractor, on the breach of his agreement with a railway 
 company was decided to be liquidated damages, and 
 
 1 Easton i>. Penn. and Ohio Canal Co., 13 Ohio, 79 ; Hennessey v. Far- 
 rell, 4 Cush. 61. 
 
CONTRACTS OF RAILROAD COMPANIES. 379 
 
 not a penalty ; and the certificates of the engineer, 
 although interested as a shareholder in the company, 
 during the progress of the work — there being no 
 proof of fraud — were, according to the terms of the 
 agreement, held to be conclusive. 1 
 
 The same provisions are introduced into agree- 
 ments between a contractor and a sub-contractor. 
 Thus, in an agreement between the original con- 
 tractors of the York and Cumberland Kailroad 
 Company and a sub-contractor, it was provided 
 that the work should be subject to the supervision 
 and control of the engineer of the railroad com- 
 pany ; that he should make monthly estimates of 
 the character, quantity, and value of the work 
 done — four fifths of the value of which to be paid 
 to the sub-contractor, — and when the work should be 
 completed, a final estimate ; that the monthly and 
 final estimates as to the quantity, character, and 
 value of the work done should be conclusive be- 
 tween the parties ; and that if the sub-contractor 
 should not truly comply with his part of the agree- 
 ment, or in case it should appear to the engineer 
 that the work was not progressing with sufficient 
 speed, the contractor should have the power to 
 annul the agreement, and the unpaid portion of the 
 
 1 Ranger ». Great Western R. Co., 21 Eng. L. <fe Eq. 35 ; S. C, 1 Eng. 
 Rail. CaB. 1 ; 8 id. 298. In this ease, by the agreement, the decision of the 
 engineer as to all matters pertaining to the work was to be final only du- 
 ring its progress ; and after its completion any dispute in relation to any 
 matter of charge or account between the parties, was to be settled by arbi- 
 tration. See Macintosh v. Midland Cos. R. Co., 3 Eng. Rail. Cas. 780 ; Rouch- 
 v. Great Western R. Co., 2 id. 505 ; Hawthorne v. Newcastle, <fcc, R. Co., 
 2 id. 288. 
 
380 CONTRACTS OF EAILKOAD COMPANIES. 
 
 price should be forfeited by the sub-comtractor and 
 become the property of the contractor. The de- 
 cision of the engineer, declaring the contract for- 
 feited, was held conclusive on the sub-contractor, 
 and the twenty per cent, retained to be a measure of 
 reparation for the failure of the contractor to per- 
 form his agreement, and not intended as a mere 
 penalty ; but it was considered that if the com- 
 pany had withheld the funds due to the subcon- 
 tractor, it would have been unfair to take advan- 
 tage of a forfeiture declared for want of a due pros- 
 ecution of the work. 1 But the law leans strongly 
 against forfeitures, and will not declare them except 
 where it clearly appears to have been the intention 
 of the parties that one should take place on an 
 event which has happened. The agreement may be 
 so drawn that, although the company is at the time of 
 the periodical payments , authorized to retain a por- 
 tion of the price of the work done, this right of reten- 
 tion may be considered as a means of indemnity, and 
 not of enforcing a forfeiture on a breach of the con- 
 
 1 Faunce v. Burke, 16 Penn. State, 469. In the same ease, it was held 
 that the term value in the agreement was to be distinguished from the term 
 price as applied to the quantity of any of the different classes of work 
 specified, for which different prices according to the cubic yard were to be 
 paid ; that the engineer in making the monthly estimates was authorized to 
 deduct from the contract price to be paid for the quantity of work already 
 done, what he considered would equalize the work done as to quality and 
 value with the whole work, and was not bound to allow the sub-contractor 
 at the monthly payment for the work done, the price specified in the agree- 
 ment for that kind of work ; for if he was paid in cash the price according 
 to the cubic yard where the work was easy, he might be paid more than 
 in fact would compensate him for the labor already performed, and would 
 thereby be interested to desert the job. 
 
CONTRACTS OF RAILROAD COMPANIES. 381 
 
 tract, and the company will then be bound to pay 
 over the retained amount unless it has sustained an 
 equivalent amount of damage by the default, negli- 
 gence, or misconduct of the contractor. The cove- 
 nant to finish the work by a certain day, on the one 
 part, and a covenant to pay monthly, on the other, 
 may also be distinct and independent covenants, so 
 that the company, which has a right to annul the 
 contract, at any time, will not have the right to 
 assert a forfeiture of the earnings of the other 
 party for work done before the contract was 
 annulled. 1 The mere vesting of a discretion in one 
 of the company's agents to determine in what quan- 
 tities and at what times work is to be delivered, 
 does not give him the power to annul the contract ; 
 and where it is to be delivered as required by the 
 company, the contractor is entitled to notice when 
 it is wanted. 2 Where the agreement was to place 
 waste earth as ordered by the engineer, it was 
 his duty to provide a convenient place for it ; and if 
 he failed to fulfill it the contractor is entitled to 
 damages. 8 
 
 The decision of the engineer, who is by the con- 
 tract made the umpire between the parties, as to 
 the quality, quantity, and value of the work, and 
 whether any part is to be allowed for as extra 
 
 1 Philadelphia, Wil., and Bait. R. R. Co. v. Howard, 13 Howard, 307. 
 Whether an express stipulation for a forfeiture would be enforced, was a 
 question suggested in this ease, but not passed upon. See Danville Bridge 
 Co. v. Pomroy, 15 Penn. State, 151. 
 
 ' Harrison v. Great Northern R. Co. 8 Eng. L. and Eq. 469. 
 
 » Philadelphia, Wil„ and Bal. R. R. Co. v. Howard, 13 How. 307. 
 
382 CONTRACTS OF RAILROAD COMPANIES. 
 
 work, has generally the effect of an award. It is sub- 
 ject to be set aside on the same grounds as an 
 award, — for the corruption of the engineer; the 
 fraud of the party attempting to set it up; the 
 exercise of an improper influence upon him by the 
 company to procure under-estimates ; or a mistake 
 of fact, by which he was deluded and led to misap- 
 prehend the case, so as not to exercise his real judg- 
 ment; but not for a mere error of judgment in 
 weighing evidence or construing the contract. The 
 relations subsisting between the company and the 
 engineer will invite scrutiny into bis decision, 
 greater than where the award is made by an impar- 
 tial arbitrator. The conflicting claims between the 
 company and the contractor being thus submitted 
 in advance to a referee of its own appointment, it 
 is its duty, under the agreement, to employ a com- 
 petent and upright person to that office, .and to see 
 that a decision is made by him upon the work ; and if 
 this duty is not neglected, its obligation to pay will 
 not arise till the estimates are made by the engi- 
 neer. But if it fails to employ an engineer, or the 
 work of the contractor is not duly acted upon by 
 him, it will be liable to the contractor without 
 any such decision. 1 The decision of the engineer is 
 
 1 Vanderwerker v . Vt. Central R. R. Co. 27 Vt. (1 Williams) 130 ; Her- 
 rick v. Belknap and Vt. Central R. R. Co. id. 673; Barker ». Troy and 
 Rutland R. R. Co. id. 766; Mansfield and Sandusky R. R. Co. v. Veeder, 
 17 Ohio, 885; Faunee v. Burke, 16 Penn. State, 469; Easton v. Penn. and 
 Ohio Canal Co. 13 id. 79; Kidwell v. Baltimore and Ohio R. R. Co. 11 
 Grattan, 676 ; Dubois v. Delaware and Hudson Canal Co. 4 Wend. 285 ; 
 12 id. 838; 15 id. 87; Mcintosh u. Great W. R. Co. 14 Jur. 819; 2 Macn. 
 it Gor. 74. See U. S. v. Robeson, 9 Peters, 327. As to the award of arbi- 
 
CONTRACTS OF RAILROAD COMPANIES. 383 
 
 not conclusive as to work not contemplated in the 
 contract either as a part of the original p]an or as 
 extra work, in the same manner that the award of 
 an arbitrator does not conclude matters not submit- 
 ted to him. 1 
 
 The provision in a contract for the estimates to 
 be made by the engineer, does not necessarily re- 
 quire the estimates from time to time to be made 
 by the chief engineer, but they may be made by 
 the assistant engineer who has charge of that part of 
 the line where the work is done. 2 A provision for 
 the construction of the road to the satisfaction and 
 acceptance of the engineer, has reference to its final 
 acceptance by the chief engineer. 8 
 
 A stipulation in the agreement for monthly esti- 
 mates of the contractor's work, according to which 
 he is to be paid, is construed to import accurate 
 and final, and not merely approximate and conjec- 
 tural estimates. 4 
 
 Claim foe extea work. — A contract of the com- 
 pany cannot be implied to pay additional compen- 
 sation to the contractor for work included its con- 
 tract with him, and a promise of its president to pay 
 for the same as extra work is without considera- 
 
 trators, and on what principles it ia set aside, see Boston Water Power 
 Co. v. Gray, 6 Met. 181. 
 
 1 Dubois v. Delaware and Hudson Canal Co. 12 Wend. 334. 
 
 ' Herrick v. Vt. Central R. R. Co. 27 Vt. (1 Williams) 673. 
 
 8 Barker v. Troy and Rutland R. R. Co. 27 Vt. 766. 
 
 * Barker v. Belknap and Vt. Central R. R. Co. 27 Vt. 700; Herrick v. 
 Same, id. 673. 
 
384 CONTRACTS OF RAILROAD COMPANIES. 
 
 tion, and will not make the company liable upon a 
 quantum meruit. 1 But as to work outside of the 
 contract, which is done at the request of the 
 company, he may recover the value thereof upon a 
 qucmtum meruit where no special mode of determin- 
 ing its value is fixed in the contract. 2 "Where the 
 agreement provided that the line of the road or 
 gradients might if the engineer should consider 
 such change necessary or expedient, be altered 
 without the contractor being entitled to any extra 
 allowance, and alterations having been made, and 
 a dispute between the parties as to the compen- 
 sation therefor having been referred to arbi- 
 trators from whose decision it was agreed there 
 should be no appeal, their report allowing com- 
 pensation for such alterations was held to be con- 
 clusive as to the construction of the contract, and 
 not re-examinable. s There are usually provisions 
 introduced into the agreement, to exclude claims for 
 extra work; viz. that no additional compensation 
 shall be allowed for alterations in the location deemed 
 necessary by the engineer, when made before the 
 work on the altered portion has commenced, and such 
 only as he shall deem fair and equitable where the 
 alteration is made afterwards ; and also that no claims 
 shall be allowed for extra work unless done in pursu- 
 ance of a written contract or order signed by the 
 engineer and presented within a given time. These 
 
 1 Nesbitt v. L. C. C. and R. R. Co., 2 Speeru, 691 ' 
 * Dubois v. Delaware and Hudson Canal Co., 4 Wend. 285 ; S. C, 12 id. 
 834 ; 15 id. 81. 
 
 8 Porter v. Buekfield Branch B. B. Co., 32 Maine, 539. 
 
CONTRACTS OF RAILROAD COMPANIES. 385 
 
 stipulations limit the power of the engineer and the 
 responsibility of the company. The decision of the 
 engineer, as to the amount due for alterations after 
 the work has commenced on the altered portion, has 
 been held to have the effect of an arbitrator's 
 award, and to be impeachable only on the same 
 grounds. 1 The engineer, to bind the company, 
 must execute his authority iu the prescribed mode. 
 The company is not bound by his oral order and 
 promise of additional compensation for extra work 
 under a contract which excludes allowance of 
 claims for extra work unless performed in pursu- 
 ance of his written order. 8 The acquiescence of 
 the contractor in the monthly estimates of the 
 compensation due for the work done, made by the 
 engineer, who is appointed by the contract to make 
 such estimates, without setting up any claim for 
 additional work, is a practical construction of the 
 agreement against his right to further allowance. 8 
 
 The liability of the company to a party claim- 
 ing compensation for extra work, to whom the 
 contractor has underlet the job, is deserving of 
 consideration. If he makes a claim for extra work 
 against the company, the agreement between it and 
 
 1 Vanderwerker v. Vt Central R. R. Co., 27 Vt. 130 ; Herrick v. Belknap 
 and Vt. Central R. R. Co., id. 673. 
 
 2 Thayer v. Vt Central E. R. Co., 24 Vt 440; Vanderwerker v. Same, 
 27 id. 125, 130 ; Herrick v. Belknap and Vt. Central R. R. Co., id. 673, 686; 
 Barker v. Troy and Rutland R. R. Co., id. 766 ; Barker v. Belknap and Vt. 
 Cent. R. R. Co., id. 700 ; Nesbitt v. R. R. Co., 2 Speers, 697. 
 
 s Barker v. Troy and Rutland R. R. Co., 27 Vt. 766 ; Barker v. Belknap 
 and Vt. Central R. R. Co., id. 700 ; Kidwell v. Baltimore and Ohio R. R. Co., 
 11 Grattan, 676. 
 
 26 
 
386 CONTRACTS OF RAILROAD COMPANIES. 
 
 the principal contractor does not determine his 
 rights, as he was not a party to it. But while he is 
 working on the job, it is but fair for the company 
 to presume that he is working on the credit of his 
 employer, the principal contractor. Where he has 
 apparently taken upon himself all the obligations of 
 the contractor, there is no presumption of an agree- 
 ment of the company to pay him for work which 
 comes legitimately within its agreement with the 
 principal contractor. Whatever under such circum- 
 stances he does in execution of that agreement, it has 
 a right to take for granted was done on the credit 
 of the principal contractor and not on its own, 
 although in doing the work he obeys its directions 
 where the contractor would be bound to obey them. 
 The engineer has no implied authority to bind the 
 company by a promise of extra compensation for 
 work which the original contractor was bound to per- 
 form without any title to such extra compensation. 
 Nor will an agreement to that effect be implied from 
 the fact that the company has before paid similar 
 claims, in the absence of proof that the sub-contractor 
 was thereby induced to rely on the authority of the 
 engineer to make it. 1 The custom of railroad com- 
 panies to allow their contractors while employed by 
 them the use of their own roads, free of charge, does 
 not imply a contract to pay their fare on a road 
 belonging to another distinct company. 2 
 
 1 Thayer v. Vt. Central R. R. Co., 24 Vt. 440 ; Vanderwerker v. Vt. 
 Central R. R, Co., 2<7 id. 126 ; Herrick v. Belknap and Vt. Central R. R. Co., 
 id. 686, 681; Barker v. Troy and Rutland R. R. Co., id. Ill; Nesbitt v. L. 
 C. and C. R. R. Co. 2 Speers, 697 ; Coleoek v. Same, 1 Strob. 335. 
 
 ' Colcook v. L. C. and C. R R Co., 1 Strob. 329. 
 
contracts of eaileoad companies. 387 
 
 Liability op the Company to a Sub-conteac- 
 toe.— There is no privity of contract between the 
 company and the sub-contractor. The latter has no 
 equitable lien for the amount due him from the con- 
 tractor, on the funds in the hands of the company 
 which are due to the contractor for the work done, 
 even in case of the insolvency of the contractor. 
 Nor has he any remedy against the company for 
 mistakes in the estimates of the engineer, who is 
 made the umpire between the parties both in the 
 agreement between the company and the contractor, 
 and also in that between him and the sub-contractor, 
 there being no privity between the company and 
 the sub-contractor as to the engineer any more than 
 as to other matters in the agreement. But if the 
 company or its agents connive to' influence improp- 
 erly the engineer to make underestimates, the com- 
 pany will be responsible to the sub-contractor for 
 the damages to him occasioned by its fraud. 1 In 
 the agreements between the contractor and sub-con- 
 tractor, the same provisions are usually introduced 
 as are in the original contract, by which the sub-con- 
 tractor is bound by the estimates of the engineer, 
 and the contractor may declare the contract between 
 him and the sub-contractor forfeited if the work is 
 not done by the latter to the satisfaction of the 
 engineer ; and such stipulations are sustained. 2 
 
 1 Herrick v. Belknap and Vt. Central R. R. Co., 27 Vt. 673 ; Barker v. 
 Same, id. 700 ; Mcintosh v . Great Western R. Co. 14 Jur. 819 ; 2 Maen. <fc 
 Gor. 74. 
 
 ' Hennessey v. Farrell, 4 Cush. 267 ; Herrick v. Belknap and Vt. Central 
 R. R. Co., 27 Vt. 673; Barker •<-. Same, id. 700; Faunce v. Burke, 16 Penn. 
 State, 469. 
 
388 contracts of railroad companies. 
 
 Damages for breach of the Agreement with 
 the Contractor.— The contractor is entitled to 
 indemnity for a breach of the agreement by the 
 company in suspending the work, where it has not 
 reserved the right to suspend it. The measure of 
 damages is the difference between the sum he was 
 to be paid, and what it would cost to complete the 
 work. The profits allowed to the contractor by this 
 mode of computing the damages are the direct and 
 immediate fruits of the contract, and are not of such 
 a speculative and contingent character as to be dis- 
 regarded in law. 1 In assessing the damages, the 
 
 1 Masterton v. Mayor, <fcc. Brooklyn, 1 Hill, 61; Phil., Wil., and Bait. 
 R. R. Co. v. Howard, 13 How. 307, 844. This was an action brought by a 
 contractor against the company for the breach of its agreement in stopping 
 the work. Curtis, J. : " It is insisted that only actual damages, and not 
 profits, were in that event to be inquired into and allowed by the jury. 
 It must be admitted that actual damages were all that could lawfully be 
 given in an action of covenant, even if the company had been guilty of 
 fraud. But it by no means follows that profits are not to be allowed, under- 
 standing, as we must, the term profits in this instruction as meaning the 
 gain which the plaintiff would have made if he had been permitted to com- 
 plete his contract. Actual damages clearly include the direct and actual 
 loss which the plaintiff sustains propter rem ipsam non habitant. 
 
 "And in case of a contract like this, that loss is, among other things, the 
 difference between the cost of doing the work and the price to be paid for 
 it. This difference is the inducement and real consideration which causes 
 the contractor to enter into the contract. For this he expends his time, 
 exerts his skill, uses his capital, and assumes the risks which attend the 
 enterprise. And to deprive him of it, when the other party has broken the 
 contract and unlawfully put an end to the work, would be unjust. There is 
 no rule of law which requires us to inflict this injustice. Wherever profits 
 are spoken of as not a subject of damages, it will be found that something 
 contingent upon future bargains, or speculations, or states of the market, 
 are referred to, and not the difference between the agreed price of some- 
 thing contracted for, and its ascertainable value, or cost. See Masterton v. 
 Mayor of Brooklyn, 1 Hill's R. 61, and cases there referred to. We hold it 
 to be a clear rule, that the gain or profit, of which the contractor was 
 
CONTRACTS OP RAILROAD COMPANIES. 389 
 
 market price or value of the work and materials at 
 the time of the breach are to govern ; and they are 
 to be ascertained according to the existing state of 
 the market at the time the cause of action arose, 
 and not at the time fixed for full performance. 
 Therefore, the difference between the price to be 
 paid to the contractor, and that which he had 
 agreed to pay sub-contractors for doing the work is 
 not the true measure of damages. 1 Such collateral 
 undertakings are not necessarily connected with the 
 principal contract, and cannot reasonably be pre- 
 sumed to have been taken into consideration when 
 it was entered into. 2 
 
 Agreement by the Contractor to receive 
 Stock or Bonds in Payment of his Work. — 
 Where the contractor agreed to receive the stock 
 of the company at its par value, in payment of a por- 
 tion of his compensation, to be made at a certain 
 time, the company is not bound to seek him on the 
 day of payment and tender the stock; and if it 
 omits to do this, it is not liable for the par value of 
 the stock, the market value of which is below par. 
 Nor can the contractor, to sustain a claim for the 
 par value, avail himself of acts of the directors 
 changing the mode of payment of interest on the 
 stock, or of amendments of the charter which were 
 authorized by a clause therein reserving to the legis- 
 
 deprived, by the refusal of the company to allow him to proceed with, and 
 complete the work, was a proper subject of damages.' - See Ranger v. Great 
 Western R. Co., 27 Eng. L. <fe Eq. 54. 
 
 1 N Y. and Harlem R. R. Co. v. Story, 6 Barb. 419. 
 
 ' Fox v. Harding, 1 Cush. 516. 
 
390 CONTRACTS OF EAILEOAD COMPANIES. 
 
 lature the power to make amendments, such changes 
 not being provided against in the contract. 1 Where 
 the company on a settlement with a contractor, 
 agreed to pay him a certain sum in its shares or 
 bonds at his election, the amount, however, to be 
 retained by it as an indemnity against certain liabil- 
 ities to which it was subject, and it made out and 
 delivered to him a certificate of so many shares, with 
 an agreement endorsed to exchange it for bonds, 
 at his election, and the certificate was then re- 
 turned to the company as such indemnity, it was 
 held that the company was bound to deliver the 
 bonds according to its agreement, notwithstanding 
 its treasurer had entered the shares on its records 
 as the property of the contractor, and they had in 
 consequence been sold on execution as his property. 2 
 
 Unlawful Conteacts. — The company is not 
 bound by an agreement founded on an unlawful 
 consideration, or stipulating for the performance of 
 an unlawful act. 8 It has been held in Pennsylvania, 
 that a contract made by it, by which it agrees to 
 give an express company the exclusive right to 
 use the passenger trains of the railroad for ex- 
 press purposes for three years, is illegal and void. 4 
 
 1 Moore v. Hudson River R. R. Co., 12 Barb. 156; Boody v. Rutland and 
 Burlington R. R. Co., 24 Vt. 660 ; Barker v. Troy and Rutland R. R. Co., 
 27 Vt. 766. 
 
 2 Jones v. Portsmouth and Concord R. R., 32 N. H., 544. 
 
 8 See Mayor, <fcc, Norwich v. Norfolk R. Co , 30 Eng. L. & Eq. 120 ; 
 Winch o. Birkenhead, Ac, R. Co. 13 id. 506; Shrewsbury, &c, R. Co., 
 9 id. 394; Lindsay v. Great Northern R. Co., 19 id. 871. 
 
 * Sanford v. Catawissa, <Scc, R. R. Co., 24 Penn. State, 378. 
 
CONTRACTS OF EAILROAD COMPANIES. 391 
 
 An agreement between the company and other 
 parties, the ultimate and probable tendency of 
 which is to corrupt legislators, is void as against 
 public policy. There is every reason to believe 
 tha't a great many of this class of agreements have 
 been entered into by railroad companies, when soli- 
 citing privileges from a legislative body. Agents 
 have been employed to urge improper motives, and 
 to exert corrupting influences on the members. This 
 business, in the technical vocabulary of politicians, 
 is termed " log-rolling," which is a misdemeanor at 
 common law, punishable by indictment. A class of 
 contracts has recently been denounced by the Su- 
 preme Court of the United States, in which secret 
 agents are employed to carry a measure by personal 
 appeals to members, from whom they agree to con- 
 ceal their employment as agents, or do in fact volun- 
 tarily, without a provision to that effect, conceal 
 it. A stipulation for high contingent compensation 
 was considered contrary to public policy, as neces- 
 sarily leading to the use of improper means, and the 
 exercise of undue influence. The corporation has 
 an undoubted right to urge its claims, and the rea- 
 sons therefor, in any matter affecting its interests, 
 by agents and attorneys, before legislative bodies 
 and committees, as well as in courts of justice. But 
 it is due to the legislators that these agents should 
 appear in their true character, and that while deeply 
 interested themselves in the success of the project, 
 their advice or information should not be presented 
 as that of unbiased parties, and thereby receive far 
 greater confidence than it deserves. And it is 
 also due to the public that they should not be 
 
392 CONTRACTS OF RAILROAD COMPANIES. 
 
 compensated in a manner, as by high contingent 
 fees, which leads almost necessarily to their own 
 demoralization, and to induce til em to present un- 
 worthy considerations to legislators. 1 
 
 1 Marshall v. Baltimore and Ohio R. R. Co., 16 Howard, 314, 334-336. 
 In this case, the plaintiff sued the defendant company to recover the sum of 
 fifty thousand dollars, which he alleged, it owed him under a special contract, 
 for his services in obtaining a law from the legislature of Virginia, grant- 
 ing 1 the company a right of way through Virginia to the Ohio River ; and the 
 contract was held void. Grier, J. : " It is an undoubted principle of the com- 
 mon law, that it will not lend its aid to enforce a contract to do an act that 
 is illegal ; or which is inconsistent with sound morals or public policy ; or 
 which tends to corrupt or contaminate, by improper influences, the integrity 
 of crar social or political institutions. Hence all contracts to evade the rev- 
 enue laws are void. Persons entering into the marriage relation should be 
 free from extraneous or deceptive influences; hence the law avoids all con- 
 tracts to pay money for procuring a marriage. It is the interest of the State 
 that all places of public trust should be filled by men of capacity and integ- 
 rity, and that the appointing power should be shielded from influences 
 which may prevent the best selection ; hence the law annuls every contract 
 for procuring the appointment or election of any person to an office. The 
 pardoning power, committed to the executive, should be exercised as free 
 from any improper bias or influence as the trial of the convict before the 
 court ; consequently, the law will not enforce a contract to pay money for 
 soliciting petitions, or using influence to obtain a pardon. Legislators 
 should act from high considerations of public duty. Public policy and 
 Bound morality do therefore imperatively require that courts should put the 
 stamp of their disapprobation on every act, and pronounce void every con- 
 tract the ultimate or probable tendency of which would be to sully the 
 purity or mislead the judgments of those to whom the high trust of legis- 
 lation is confided. 
 
 " All persons whose interests may in any way be affected by any public 
 or private act of the legislature, have an undoubted right to urge their claims 
 and arguments, either in person or by counsel professing to act for them, 
 before legislative committees, as well as in courts of justice. But where per- 
 sons act as counsel or agents, or in any representative capacity, it is due to 
 those before whom they plead or solicit, that they should honestly appear in 
 their true characters, so that their arguments and representations, openly and 
 candidly made, may receive their just weight and consideration. A hired 
 advocate or agent, assuming to act in a different character, is practicing 
 deceit on the legislature. Advice or information flowing from the unbiased 
 judgment of disinterested persons, will naturally be received with more 
 confidence and less scrupulously examined than where the recommendations 
 
CONTRACTS OP RAILROAD COMPANIES. 393 
 
 The authorities in this country are uniform in 
 denouncing such agreements as contrary to public 
 policy ; and while a contract for the services of 
 an attorney or agent of a railroad company, to 
 appear publicly in its behalf before a legislative 
 body or committee and urge reasons for some act 
 
 are known to be the result of pecuniary interest, or the arguments prompted 
 and pressed by hope of a large contingent reward, and the agent ' stimu- 
 lated to active partisanship by the strong lure of high profit.' Any attempts 
 to deceive persons entrusted with the high functions of legislation, by secret 
 combinations, or to create or bring into operation undue influences of any 
 kind, have all the injurious effects of a direct fraud on the public. 
 
 " Legislators should act with a single eye to the true interest of the whole 
 people, and courts of justice can give no countenance to the use of means 
 which may subject them to be misled by the pertinacious importunity and 
 indirect influences of interested and unscrupulous agents or solicitors. 
 
 " Influences secretly urged under false and covert pretences must neces- 
 sarily operate deleteriously on legislative action, whether it be employed to 
 obtain the passage of private or public acts. Bribes, in the shape of high 
 contingent compensation, must necessarily lead to the use of improper 
 means and the exercise of undue influence. Their necessary consequence 
 is the demoralization of the agent who covenants for tbem ; he is soon 
 brought to believe that any means which will produce so beneficial a result 
 to himself, are 'proper means;* and that a share of these profits may have 
 the same effect of quickening the perceptions and warming the zeal of influ- 
 ential or 'careless' members in favor of his bill. The use of such means 
 and such agents will have the effect to subject the State governments to the 
 combined capital of wealthy corporations, and produce universal corruption, 
 commencing with the representative and ending with the elector. Specu- 
 lators in legislation, public and private, a compact corps of venal solicitors, 
 vending their secret influences, will infest the capital of the Union, and of 
 every State, till corruption shall become the normal condition of the body 
 politic, and it will be said of us as of Rome, — * omne Remus venale.' 
 
 " That the consequences we deprecate are not merely visionary, the Act 
 of Congress of 1853, u. 81, ' to prevent frauds upon the treasury of the United 
 States,' may be cited as legitimate evidence. This act annuls all champer- 
 tous contracts with agents of private claims. 2d. It forbids all officers of 
 the United States to be engaged as agents or attorneys for prosecuting 
 claims, or from receiving any gratuity or interest in them in consideration 
 of having aided or assisted in the prosecution of them, under penalty of fine 
 and imprisonment in the penitentiary. 3d. It forbids members of Congress, 
 
394 CONTRACTS OF RAILEOAD COMPANIES. 
 
 for its benefit, may be sustained, an agreement 
 to compensate a party, especially with a contingent 
 fee, for what are called lobby services, who is em- 
 ployed to use his personal influence with members 
 for a measure, is illegal, and cannot be enforced 
 against the company. 1 A secret agreement between 
 parties, by which one of them who is a stockholder 
 in a railroad company, is to receive a contingent 
 compensation for his efforts in procuring it to make 
 a certain location of its station, beneficial to the other 
 party, tends injuriously to affect the public interests, 
 
 under a like penalty, from acting as agents for any claim in consideration 
 of pay or compensation, or from accepting any gratuity for the same. 4th. It 
 subjects any person who shall attempt to bribe a member of Congress to 
 punishment in the penitentiary, and the party accepting the bribe to the 
 forfeiture of his office. If severity of legislation be any evidence of the 
 practice of the offenses prohibited, it must be the duty of courts to take a 
 firm stand, and discountenance, as against the policy of the law, any and 
 every contract which may tend to introduce the offenses prohibited. 
 
 " Nor are these principles now advanced for the first time. Whenever 
 similar cases have been brought to the notice of courts, they have re- 
 ceived the same decision. Without examining them particularly, we would 
 refer to the cases of Fuller v. Dame, 18 Pick. 470; Hatzfield v. Gulden, 7 
 Watts, 152; Clippinger v. Hepbaugh, 5 W. & Serg. 315; Wood v. M'Cann, 
 6 Dana, 366 ; and Hunt v. Test, 8 Alabama, 719. The Commonwealth v. 
 M'Callaghan, 2 Virginia Cases, 460. The sum of these cases is — 1st That 
 all contracts for a contingent compensation for obtaining legislation, or to 
 use personal or any secret or sinister influence on legislators, is void by the 
 policy of the law. 2d. Secrecy, as to the character under which the agent 
 or solicitor acts, tends to deception, and is immoral and fraudulent ; and 
 where the agent contracts to use secret influences, or voluntarily, without 
 contract with his principal, uses such means, he cannot have the assistance 
 of a court to recover compensation. 3d. That what, in the technical vocab- 
 ulary of politicians, is termed ' log-rolling,' is a misdemeanor at common law, 
 punishable by indictment." 
 
 1 Wood ii. M'Cann, 6 Dana, 366 ; Hunt v. Test, 8 Ala. 713 ; Clippinger 
 v. Hepbaugh, 6 W. & S. 315 ; Harris v. Roof, 10 Barb. 489 ; Gray v. Hook, 
 4 Comst. 456 ; Rose v. Truax, 21 Barb. 361. 
 
CONTRACTS OF RAILROAD COMPANIES. 395 
 
 and those of the corporation, which are concerned in 
 having the best location adopted, — and is void, as 
 contrary to public policy. 1 
 
 Capacity of the Company to make Contracts. 
 — The capacity of a railroad company, like that of 
 other corporations, to bind itself by contracts, is 
 determined by different principles from those which 
 define the capacity of private persons. The power 
 of an individual of full age and capacity, to make 
 lawful contracts, is not limited except in a few 
 peculiar cases. A corporation, on the other hand, 
 being the creature of positive law, can only make 
 such contracts as are expressly authorized by 
 its charter, or are directly or indirectly necessary 
 to carry the purposes of the charter into effect. A 
 railroad company has, then, the power to make only 
 those which it is specially authorized to make, and 
 such as are usual and necessary in carrying on the 
 business which it is empowered to conduct. 2 Nor is 
 a corporation estopped from setting up its want 
 of authority to enter into a contract which its agents 
 have made in its behalf; for otherwise its powers 
 might be indefinitely enlarged. 8 Nor is it responsi- 
 
 ' Fuller v. Dame, 18 Pick. 472. 
 
 1 2 Kent, Com. 298 ; Angell & Ames on Corp. ch. viii. §§ 256-275 ; 
 Gov. & Co. of Copper Mines v. Fox, 3 Eng. L. and Eq. 420 ; Bank of Augusta 
 v. Earle, 13 Peters, 587 ; Hart v. Missouri State Mut. F. & M. Ins. Co. 21 
 Missouri, 91 ; 1 Parsons on Cont. 120. 
 
 8 Welland Canal Co. v. Hathaway, 8 Wend. 484 ; Penn. <fcc. Steam Nav. 
 Co. v. Dandridge, 8 Gill <fe J. 319; Abbott v. Steam Packet Co. 1 Maryl. 
 Ch. Dec. 542 ; Hood v. N. Y. and N. H. R. R. Co. 22 Conn. 508, 509. But 
 see Weed v. S. and S. R. R. Co. 19 Wend. 537. 
 
396 CONTRACTS OF RAILROAD COMPANIES. 
 
 ble for the contracts of its agents not within its cor- 
 porate powers, although ratified by its directors. 1 
 
 But it may make any contracts naturally con- 
 nected with, and incident to its business. It has au- 
 thority to keep a warehouse, and make contracts for 
 warehousing, as incidental to its business, without 
 a special power. 2 As a general rule, a railroad com- 
 pany has all the powers which belong to corpora- 
 tions of the same class, unless there is something in 
 its nature or the terms of its charter, or some general 
 law, inconsistent with the exercise of such powers. 8 
 The power of a railroad company to contract for the 
 transportation of persons and merchandise beyond 
 its termini, when not authorized by statute, has been 
 questioned in Connecticut. 4 It has, however, been 
 affirmed in Vermont. 5 
 
 A railroad company, under its common-law power 
 to contract, may make a valid agreement to compen- 
 sate an agent for obtaining subscriptions of stock. 
 If the service is entirely outside of his employment 
 by it for the month or year, an agreement for spe- 
 cial compensation may, under certain circumstances 
 be implied. 6 But a director or other officer cannot 
 recover extra compensation merely on the ground 
 
 1 M'Cullough v. Moss, 5 Demo, 667 ; Hodges v. Buffalo, 2 id. 110; Boom 
 v. Utica, 2 Barb. 104. 
 
 a Moses v. Boston and Maine R. R. 4 Foster, 82. 
 
 3 Smith v. Nashua and Lowell R. R. 7 Foster, 94, 95. 
 
 4 Hood v. N. Y. and N. H. R. R. Co. 22 Conn. 608, 509 ; Naugatuck R. 
 R. Co. v. Waterbnry Button Co. 24 id. 482. 
 
 5 Noyes v. Rut. and Bur. R. R. Co. 27 Vt. 110. 
 
 • C. J. and C. R. R. Co. v. Clarkson, 7 Ind. 595. 
 
CONTRACTS OF EAELEOAD COMPANIES. 397 
 
 that his acts, if done as such officer, were specially- 
 beneficial to the company. 1 A director is, however, 
 not incapacitated from performing other services 
 than those of a director, and receiving the usual 
 compensation therefor. Where, by a vote of the 
 directors, their compensation was fixed at a certain 
 rate, it was held that the limitation was upon their 
 compensation for such services only as could not 
 have been performed by persons who were not 
 directors, and not upon those which were not 
 rendered by them in their official capacity. 2 
 
 Decisions in England on the Capacity op the 
 Company. — In England, the extent and limitations 
 of the capacity of a railroad company to enter into 
 contracts, especially as they concern its power to 
 transfer its peculiar privileges, have been much dis- 
 cussed. According to the decisions, the agreements 
 of the company, whether under seal or not, to en- 
 gage in trading operations, however advantageous 
 they may promise to be, to build branch railroads, 
 to construct works outside of its authorized limits, to 
 lease its road to another company, to delegate its 
 privileges to other parties, or to form a partnership 
 with another company for the share of profits made 
 by both companies, — are ultra vires or beyond its 
 power, and are void. The powers of a railroad com- 
 pany, it is considered, were conferred for, and are 
 
 1 York and N. Midland E. Co. 19 Eng. L. and Eq. 370; Hodges v. Rut. 
 and Bur. E. E. Co. (Supreme Ct. of Vt. Jan. 1857), 19 Law Eep. (March, 
 1887), p. 630. 
 
 ' Henry v. Rut. and Bur. E. E. Co. 27 Vt. 435. 
 
398 CONTRACTS OF RAILROAD COMPANIES. 
 
 limited to the purposes for which it was established ; 
 and its funds must be used for those purposes only. 1 
 Such agreements are, in the first place, against pub- 
 lic policy. The legislature, in the exercise of its dis- 
 cretion, clothes such bodies as it chooses to select, 
 with such powers, involving duties to the public, as 
 seem proper to it. But such agreements are an 
 attempt to exercise powers which the legislature did 
 not see fit to grant, or to part with statutory powers 
 which the company has no power to part with, and 
 to confer them on parties who have not been author- 
 ized by it to accept them. On grounds of public 
 policy, they are therefore considered void, even if 
 assented to by all the stockholders. It has also been 
 suggested, that they are a violation of the rights of 
 the shareholder, who may demand that the funds 
 contributed by him shall be expended for the pur- 
 poses designated by the act of incorporation, and 
 who may have the company restrained from apply- 
 ing them to unauthorized purposes. But such a 
 diversion of its funds, when authorized by an act of 
 Parliament, can no longer be considered against 
 public policy, or be resisted by a shareholder. 2 Thus, 
 
 1 Solomons v. Laing, 12 Beavan, 352 ; Mayor, &c, Norwich v. Norfolk 
 Railway Co. 30 Eng. L. & Eq. 143. 
 
 a Beman v. Rufford, 6 Eng. L. and Eq. 106; 1 Simons, N. S. 560 ; East 
 Anglian R. Co. v. Eastern Cos. R. Co. 7 Eng. L. and Eq. 505 ; Great North- 
 ern R. Co. v. Eastern Cos. R. Co. 12 id. 224 ; Winch v. Birkenhead R. Co. 
 13 id. 506 ; Gage v. Newmarket R. Co. 14 id. 5*7 ; 18 Q. B. 457 ; 83 E. C. L. ; 
 MacGregor ». Official Manager, &c, R. Co. 16 id. 180 ; Mayor, <fcc, Norwich 
 «. Norfolk R. Co. 30 id. 120 ; 4 El. & Bl. 397 ; 82 E. C. L ; Eastern R. 
 Co. v. Hawkes, 35 Eng. L. and Eq. 8; 15 id. 867 ; South Yorkshire R. <Sse. 
 Co. v. Great N. R. Co. 22 id. 634 ; Colman v. Eastern Cos. R. Co. 10 Beavan, 1. 
 
OONTEAOTS OF RAILROAD COMPANIES. 399 
 
 where the defendant company covenanted with the 
 plaintiff company to take a lease of the latter's rail- 
 way, and to pay the costs of soliciting bills then 
 pending in Parliament by which the plaintiffs were 
 to be authorized to make extensions and branches 
 of their railway, the defendants being sued for 
 a breach of the covenant, it was held that the 
 the defendants were not competent to make the 
 agreement in question ; that they were a corpora- 
 tion only for the purpose of making and maintaining 
 the railway sanctioned by their act of incorporation, 
 of which, being a public act, the plaintiffs must be 
 presumed to have had notice ; and that their funds 
 could only be applied for the purposes provided 
 therein, of, which the subject of the contract in 
 question was not one ; and the defendants were held 
 not liable for the costs of soliciting the bills, even 
 with the assent of all the shareholders. 1 
 
 The contract of the officers of one company to 
 indemnify another for its application to Parliament 
 for powers to work a railway, the last company 
 agreeing to hand over the scheme to the first com- 
 pany in case of success, is void ; as the first company 
 had no power to apply its funds for that purpose, 
 and the second company could not recover on 
 account thereof. 2 So, the covenant of a company to 
 construct a bridge outside of its prescribed limits, 
 not being authorized by Parliament, was considered 
 
 1 East Anglian R Co. ». Eastern Counties R. Co. 1 Eng. L. and Eq. 605. 
 a Mac Gregor v. Official Manager of Deal and Dover E. Co., 16 Eng. L. 
 and Eq.' 180? 
 
400 CONTRACTS OF RAILROAD COMPANIES. 
 
 void. 1 One company has no power to lease its 
 privileges to another.* Nor can it make an agree- 
 ment which amounts to such a lease. It cannot 
 enter into an agreement delegating to another com- 
 pany all the powers conferred on it, or handing over 
 the management of its line to another. Such an agree- 
 ment is an unlawful attempt to effect that which 
 Parliament alone can authorize, and equity will not 
 interfere to promote its object, or to extend and 
 facilitate its operation. 8 But an injunction may be 
 obtained at the suit of a shareholder in one com- 
 pany, filing a bill on behalf of himself and all other 
 shareholders therein to prevent its performance. 4 
 An agreement between companies to divide their 
 profits as partners in certain proportions, is unlawful ; 
 being beyond the authority conferred by the incor- 
 porating act, and diverting the funds of the company 
 from the channels appointed therein. It will not 
 be enforced in equity at the suit of one company, 
 although the company against which it is sought to 
 be enforced has received the consideration for enter- 
 ing into it ; 5 and equity will interfere at the instance 
 
 1 Mayor,. <fcc. Norwich v. Norfolk R. Co., 30 Eng. L. and Eq. 120. The 
 court was equally divided. 
 
 Q East Anglian R. Co. v. Eastern Counties R. Co., 1 Eng. L. and Eq. 
 505 ; Winch v. Birkenhead, <fec. R. Co., 13 id. 617. 
 
 a Great Northern R. Co. v. Eastern Counties R. Co., 12 Eng. L. and Eq. 
 224; Johnson v. Shrewsbury and Birmingham R. Co., 19 id. 584. 
 
 * Winch v. Birkenhead, Lancashire, and Cheshire June. R. Co., 13 Eng. 
 L. and Eq. 506 ; Beman v. Rufford, 6 id. 106 ; Colman v. Eastern Cos. R. 
 Co., 10 Beavan. 1 ; Salomons v. Laing, 12 id. 339. 
 
 8 Shrewsbury and Birmingham R. Co. v. London and N. W. R. Co. 21 
 Eng. L. & Eq. 319. 
 
CONTRACTS OF RAILROAD COMPANIES. 401 
 
 of shareholders to prevent its performance. 1 Nor, 
 it seems, can a railway company legally or equitably 
 mortgage its undertaking, without authority of 
 Parliament. 2 The affixing of a seal or of the com- 
 mon seal of the company to such agreements, will 
 not give validity to them. 8 Bat they are legal 
 when authorized by Parliament. 4 
 
 There are contracts of a railroad company which it 
 is a breach of trust for its officers and agents to enter 
 into, but which may nevertheless bind it to innocent 
 contracting parties. Thus, it has the right to buy 
 fuel to furnish steam for its engines and for other 
 purposes, but it has no right to traffic in fuel. If, 
 then, it buys fuel of a party, he is not obliged to 
 see to its legitimate application to the purposes of 
 the charter, and he is entitled to the purchase-money, 
 provided he was innocent of the intended misappro- 
 priation. It is sufficient, so far as he is concerned, 
 if the fuel might be used by the company for an 
 authorized purpose. • So, where the company is 
 authorized to buy land for extraordinary purposes, a 
 party who agrees to sell land to it in good faith, 
 and without knowledge of an intended breach of 
 trust, is not bound to see that the land is strictly 
 
 1 Simpson v. Denison, 13 id. 359 ; but see Shrewsbury, &a. R. Co. u. 
 London, <fec. R. Co., 9 id. 394; 2 Mae. & Gord. 324. 
 
 3 South Yorkshire R. and River Dun Co. v. Great Northern R. Co , 19 
 Eng. L, and Eq. 513 ; see Myatt v. St. Helens, <fec. R. Co., 2 Eng. Rail Cas. 
 756. 
 
 8 Shrewsbury, etc., R. Co. v. London, (fee., R. Co., 21 Eng. L. and Eq. 319 ; 
 South Yorkshire R., &a. Co. v. Great Northern R. Co., 22 id. 543. 
 
 4 London and S. W. R. Co. v. S. E. R. Co., 20 Eng. L. and Eq. 417 ; Shrews- 
 bury, &a. R. Co. v. Stone Valley R. Co., 21 id. 628. 
 
 21 
 
402 CONTRACTS OF RAILROAD COMPANIES. 
 
 necessary for those purposes, and may enforce the con- 
 tract, although it is not so necessary. 1 But where the 
 excess of authority appears by a public statute, or is 
 known to the party, or is of a kind where he cannot 
 be presumed to be innocent, as where the subject is 
 and* from its nature must be entirely foreign to the 
 purposes of the charter, he cannot vindicate any 
 rights growing out of it. Nor would it seem to be 
 required that the contract should be directly neces- 
 sary to carry out its purposes. If it furnishes the 
 proper means, this may be sufficient. There could 
 be no objection to a company manufacturing its own 
 engines, and such an operation might much facilitate 
 the purposes of its charter. A contract for the raw 
 materials, and for the manufacture of these into 
 engines, would then be within the scope of its 
 authority. These are suggestions of principles ; but 
 it must be confessed the law on this point is not yet 
 definitely decided. 2 
 
 The English decisions, affirming the invalidity 
 of the contracts of the company by which it 
 attempts to transfer its corporate privileges and 
 responsibilities, have been incidentally approved 
 in this country. 8 Thus, the company owning a 
 road has been held liable, under statutes imposing 
 the duty to fence, for injuries to cattle in conse- 
 quence of an omission to perform the duty, although 
 they were inflicted by another company to which it 
 
 1 Eastern Cos. E. Co. v. Hawkes, 35 Eng. L. and Eq. 8. 
 
 2 See Mayor, <fcc, Norwich o. Norfolk R. Co., 30 Eng. L. and Eq. 143, 
 per Lord Campbell, C. J. But see opinion of Erie, J., id. p. 128. 
 
 3 Troy and Rutland R. R Co. v. Kerr, 11 Barb. 601 ; ante, ch. x. p. 244. 
 
CONTRACTS OF RAILROAD COMPANIES. 403 
 
 had leased the road. 1 So, also, a company organ- 
 ized under a charter from the legislature of Penn- 
 sylvania, is responsible for the infraction of a pat- 
 ent right respecting cars, although the entire stock 
 was held by a connecting railroad company in Ma- 
 ryland which worked the road by the instrument- 
 ality of its own agents, motive-power, and cars. 2 
 
 An arrangement between two companies to make 
 a connecting line for goods and passengers, each 
 one receiving freight and fare over both lines, and 
 accounting to the other, the amount received being 
 
 1 Nelson v. Vt. and Canada R. R. Co. 26 Vt. 1 17. 
 
 8 York and Maryland R. R. Co. v. Winans, 11 How. 30, 39. Campbell, J. : 
 " The court charged the jury, that the road on which the infraction was 
 committed was held under a Pennsylvania charter to the defendant in that 
 court ; that the transportation on the road was carried on by the Maryland 
 corporation ; and that the profits accruing from the use of the cars upon the 
 road, that is, the profits of the infraction, are nominally divided between 
 the two companies. That upon these facts, the plaintiff is entitled to re- 
 cover against the present defendants, whether they are to be regarded as 
 partners, or as principal, or agent of the Maryland corporation. 
 
 " The plaintiff complains here of this charge, for that the cars employed 
 were not-built by, and did not belong to, the company ; that they were the 
 exclusive property of the Maryland corporation ; and that the agreement to 
 divide the profits did not constitute a partnership, nor evince a relation of 
 principal or agent to impose a liability. This conclusion implies, that the 
 duties imposed upon the plaintiff by the charter, are fulfilled by the 
 construction of the road, and that by alienating its right to use, and its 
 powers of control and supervision, it may avoid further responsibility. But 
 those acts involve an overturn of the relations which the charter has 
 arranged between the corporation and the community. Important fran- 
 chises were conferred xipon the corporation, to enable it to provide the 
 facilities to communication and intercourse required for the public conve- 
 nience. Corporate management and control over these were prescribed, 
 and corporate responsibility for their insufficiency provided, as a remunera- 
 tion to the community for their grant. The corporation cannot absolve 
 itself from the performance of its obligations without the consent of the 
 legislature. Beman v. Kafford, 1 Simons, N. S. 650; Winch v. B. and L. 
 Railway Company, 13 L and E. 606." 
 
404 CONTRACTS OF RAILEOAD COMPANIES. 
 
 divided according to the distance on the road of 
 each company over which the goods or passengers 
 were carried, was held not to amount to a transfer 
 of corporate powers. 1 
 
 The power of the company to embark in enter- 
 prises not contemplated in its charter when author- 
 ized by the legislature, and the rights of share- 
 holders who refuse their consent to a change of its 
 original purpose, have already been considered. 2 
 
 Meegee of the Conteact. — The agreement of 
 the company to pay damages to a land-owner is 
 merged in a judgment against it for the same 
 matter. Thus, where the company agreed to pay 
 him four shillings per rod for building a fence on 
 each side of its road through his land, and subse- 
 quently he obtained a judgment, which was satisfied, 
 for the full amount assessed by the commissioners, 
 who included in their award, besides a certain sum 
 for land damages, an additional sum of one dollar 
 per rod for the expense of building and keeping in 
 repair the fences on the line of the road along his 
 land, — this judgment was regarded as a merger of 
 the contract ; and the land-owner, having constructed 
 the fence subsequently to the judgment, was held 
 not entitled to recover the contract price or the dif- 
 ference between that and the value of the fence to 
 him for farming purposes, although but for the 
 
 1 Columbus, Piqua, and Indiana B. R. Co. v. Ind. and Bellefontaine E. 
 R. Co. 5 M'Lean, 450. 
 
 2 Ante, ch. v. pp. 18-100. 
 
CONTRACTS OF RAILROAD COMPANIES. 405 
 
 contract he would have built for himself a more 
 expensive fence. 1 
 
 Evidence of the Performance of the Con- 
 tract. — The original entries of days' work done in 
 the construction of the road, made by a clerk or 
 agent of the contractor, which it is the duty of such 
 agent to make in the course of his ordinary business, 
 is admissible if he is dead, or with his verification 
 under oath if living, to prove the amount of work 
 performed by the contractor for the company. 2 A 
 railroad company in making a disclosure by its 
 agent under a trustee process, is not concluded by 
 entries on its books which are open to correction on 
 proof of fraud or error. 8 In an action by the owner 
 of goods against the company as a common carrier, 
 a cartman employed by him to deliver the goods to 
 the company is a competent witness for the owner, 
 to prove the delivery, without a release ; though the 
 company offers to prove to the court that the goods 
 were lost by the misconduct of the witness. 4 Where 
 goods are entrusted to the company for transporta- 
 tion, its servants are competent witnesses to prove a 
 delivery by it to the owner or his agents. 5 
 
 1 Curtis ip. Vt. Central R. R. Co. 23 Vt. 613. 
 • Merrill v. Ithaca and Owego R. R. Co., 16 Wend. 586. 
 8 Bigelow a. York and Cumberland R. R. Co., 3*7 Maine, 320. 
 4 Moses v. Boston and Maine R. R., 4 Foster, 71 ; see 1 Greenl. Ev., 
 §§ 394-396, 416, 417. 
 
 ' Draper v. Worcester and Norwich R. R. Corp., 11 Met. 505. 
 
406 LIABILITY OF COMPANY 
 
 CHAPTER XVII. 
 
 LIABILITY OF THE COMPANY AS A COMMON CARRIER 
 OF GOODS. 
 
 Railroad companies are invested with the powers 
 and subject to the liabilities of common carriers of 
 goods. This class of bailees is denned to be those 
 who undertake for hire to transport from place to 
 place, the goods of such as choose to employ them. 1 
 This rule designates with reasonable certainty a 
 class of persons exercising a public employment, and 
 held by the common law to a stringent liability 
 which is not exacted of ordinary bailees. The law 
 which fixes their rights and obligations, is of ancient 
 origin. The owner, having placed his property in 
 the exclusive possession and control of the carrier, 
 and away from his own personal supervision, where 
 he may easily be defrauded by the carrier's collusion 
 with thieves and robbers, was regarded as a person 
 worthy of special protection. The common carrier 
 has the means of providing against losses resulting 
 from ordinary dangers. The negligence or mis- 
 conduct of himself or his servants, which may have 
 produced the loss, are so exclusively within their 
 
 1 Dwight v. Brewster, 1 Pick. 50 ; Elkins v. Boston and Maine R. R. Co., 
 8 Foster, 284. 
 
AS COMMON CARRIER OF GOODS. 407 
 
 own knowledge, and so difficult to be proved by 
 the owner, that for wise reasons of public policy 
 they are conclusively presumed. Accordingly, 
 while in cases of loss other bailees are liable only 
 for want of ordinary care and reasonable diligence, 
 proportioned to the character of the bailment, com- 
 mon carriers are to a certain extent the insurers of 
 goods intrusted to them, which they are bound 
 to deliver agreeably to their engagements except 
 when prevented by the act of God or the public 
 enemies ; and they may graduate their compensa- 
 tion according to this extraordinary responsibility. 1 
 The modern application of steam to the carriage of 
 merchandise on land, has brought common carriers 
 by railroad into existence, whose rights and obliga- 
 tions as well as the rights and obligations of the 
 owners and consignees of goods intrusted to them, 
 are to be determined by these well-established 
 principles, subject to such modifications as the 
 peculiar circumstances of the new mode of con- 
 veyance may render necessary and beneficial. In 
 applying these principles to this new class of car- 
 riers, we are to consult the convenience and safety 
 of the public, usage, and judicial precedent. That 
 railroad companies are common carriers, and as such 
 subject to their liabilities and entitled to their rights, 
 is at once evident. They are authorized by law to 
 make roads as highways, lay down tracks, place 
 cars on them, and carry goods for hire. They are 
 clothed with some extraordinary powers by the 
 
 1 Thomas v. Boston and Prov. R. R. Co., 10 Met. 4T2. 
 
408 LIABILITY OF COMPANY 
 
 government, and are designed to furnish to the 
 public special facilities of transportation. They 
 hold themselves out to the community, as being 
 thus authorized. They advertise for freight, make 
 known the terms of carriage, provide suitable 
 vehicles, and select convenient places for receiving 
 and delivering goods. Operated by steam and with 
 fixed tracks and termini, they differ from other car- 
 riers by land ; and this difference induces. some modi- 
 fications of the general law regulating the duties of 
 common carriers, as will hereafter appear. 1 A rail- 
 road company is not a common carrier of goods by 
 its passenger trains, not ordinarily used for that 
 purpose, unless it so holds itself out to the 
 public. In order to render it liable as such, its 
 practice to act as a common carrier by such trains 
 must be proved ; and it is not sufficient, to show a 
 single instance of its carrying goods by»them and 
 receiving compensation therefor. 2 But where its 
 
 1 Thomas v. Boston and Prov. R. R. Corp., 10 Met. 4*72 ; Norway Plains 
 Co. v. Boston and Maine R. R., 1 Gray, 263. In an action against the com- 
 pany for non-delivery of goods received by it for transportation, the declara- 
 tion should aver that it is a common carrier, and — to hold it as a bailee for 
 hire — that it received or was to receive a compensation. Bristol v. Rens- 
 selaer and Saratoga R. R. Co., 9 Barb. 158. 
 
 8 Ellrins v. Boston and Maine R. R. Co., 3 Foster, 2*7 5, 286. Gilchrist, C. J. : 
 " But in order to impose this extensive responsibility upon the defendants, 
 it must appear that they have held themselves out to the world as common 
 carriers by the passenger trains of cars upon their railway. Their object, 
 however, was not the conveyance of goods by these trains, but the trans- 
 portation of passengers. The ears upon the passenger trains are not pro- 
 vided with conveniences for the deposit of such articles as those now in 
 question, during their transit. They may, however, be used for the carriage 
 of goods, as well as of passengers if the proprietors see fit to do so, and in 
 that case they become common carriers. Their position would then be 
 
AS COMMON" CARRIER OF GOODS. 409 
 
 practice is to carry goods by its passenger trains, it 
 is liable for them as a common carrier when they 
 are received by an authorized agent, although by 
 its private instructions to him, not known to the 
 owner or the public, he is forbidden to take goods 
 by passenger trains except on his own account. 1 
 
 Measure of Liability. — Common carriers of 
 goods, as already remarked, are excused only for such 
 losses of goods entrusted to them as arise from the 
 act of God or the public enemies ; to which may be 
 added losses arising from the default of the owner 
 himself. 
 
 The act of God designates those causes which pro- 
 
 similar to that of proprietors of stage coaches, who may, in addition to the 
 transportation of passengers, become liable as common carriers, by usually 
 carrying goods for hire. 
 
 ******* 
 
 " In this case, the evidence shows that twice within two years, goods 
 have been conveyed by the passenger trains, under the charge of some of 
 the persons employed by the defendants. As the bill, however, did not 
 state that they were carried by the passenger train, and as it does not 
 appear, that it was understood they were to be thus transported, it is perhaps 
 fair to suppose that they were carried on this train, for the temporary con- 
 venience of the company, and that they did not intend by so doing to hold 
 themselves out to the world as common carriers by the passenger cars. The 
 fact that the conductor had carried goods and eggs to market for an indivi- 
 dual, as it does not appear that any compensation was paid therefor to the 
 company, or that it was done by any authority, derived from them, cannot 
 be considered as evidence of any thing beyond a private contract with the 
 conductor, made for the accommodation and convenience of the owner of the 
 property. There is one instance, of the transportation of goods by the pas- 
 senger train, in the year 1846, for which freight was paid to the baggage 
 master. But this, of itself, does not tend to prove that the defendants have 
 been in the habit of thus transporting goods, or that it was practiced by 
 their servants, in such a way that the company and the public must have 
 understood that a custom existed to that effect" 
 
 ' Mayall v. Boston and Maine K. R., 19 N. H. 122 ; Collins v. Boston and 
 Maine R. R. 10 Cush. 508. 
 
410 LIABILITY OF COMPANY 
 
 duce loss "without the intervention of human agency. 
 They are excepted, because they are beyond the 
 control, and cannot be prevented by the foresight of 
 the carrier, being such as earthquakes, lightning, and 
 tempests. They are also not liable to be mistaken 
 for his negligence or misconduct. But thefts, rob- 
 beries, collisions, fire not occasioned by lightning, 
 are not included in the exception, as in these cases 
 the act of man intervenes. Inevitable accident does 
 not excuse the carrier wherever human agency and 
 co-operation mingle with the cause of the loss, al- 
 though he may be able to show that no negligence 
 of himself or his servants contributed to the loss, 
 and that he could not have prevented it by any pos- 
 sible precaution. 1 The railroad company is liable 
 for losses which are occasioned by defects in the 
 machinery, or by the bursting of the boiler, or by 
 collisions, although no negligence or misconduct can 
 be attributed to its agents. It is bound to provide 
 sufficient vehicles and machinery at its peril. 2 
 
 Losses arising from the public enemies, are such as 
 are caused by an invading army, against which the 
 public authorities are bound to furnish protection. 
 But this exception does not relieve the carrier from 
 losses accruing from thefts, robberies, riots, or rebel- 
 lions. 8 
 
 1 Forward v. Pittard, 1 T. E. 27 ; M'Arthurw. Sears, 21 Wend. 190; Hall 
 v. N. J. Steam Navigation Co., 15 Conn. 645. 
 
 2 Camden and Atnboy R. R. and Transportation Co. v. Burke, 13 Wend. 
 611 ; Sager v. Portsmouth L. P. and E. R. R. Co. 31 Maine, 228 ; Plaisted 
 v. B. and K. Steam Navigation Co. 27 Maine, 132. 
 
 3 Thomas v. Boston and Prov. R. R. Co. 10 Met. 472. 
 
AS COMMON CARRIER OP GOODS. 411 
 
 The principle on which the extraordinary respon- 
 sibility of common carriers is founded, does not 
 require that this responsibility shall be extended 
 to the time occupied in the transportation. They 
 are therefore not liable for delay when they have 
 exercised due diligence, and have been interrupted 
 by causes beyond their control. But they are bound 
 to exercise ordinary forecast in avoiding obstruc- 
 tions, to use the proper means for removing them, 
 and after they cease to operate, to exercise due dili- 
 gence in completing the transportation, and in the 
 mean time to take proper care of the goods while 
 detained. The obligation of the company, as respects 
 the period of delivery, is usually stated as being to 
 deliver within a reasonable time. 1 This principle 
 has been applied to the interpretation of a statute 
 requiring railroad companies "to furnish sufficient 
 accommodation for the transportation of all such 
 passengers and property as shall within a reasonable 
 time previous thereto be offered for transportation 
 at the place of starting, and the junctions of other 
 railroads." The company, which is properly pro- 
 vided with the means of transportation, is not liable 
 under such a statute for a delay caused by an accu- 
 mulation of freight offered to it, exceeding its ability 
 to carry, where it makes no undue preference 
 among owners, and carries the freight offered as soon 
 as it can, consistently with its accommodations and 
 
 1 Parsons v. Hardy, 14 Wend. 215 ; Bowman v. Teall, 23 id. 307 ; Broad- 
 well v. Butler, 6 M'Lean, 296 ; Scoville *. Griffith, 2 Kernan, 509 ; Nettles 
 v. S. C. K. R. Co. 1 Rich. 190 j Lipford v. Charlotte and S. C. R. R. Co. id. 
 409 ; Hughes v. Great Western R. Co. 25 Eng. L. and Eq. 34? . 
 
412 LIABILITY OF COMPANY 
 
 its duty to forward freight previously offered. 1 But 
 if the company enters into an express contract to de- 
 liver within a specified time, it is liable in damages 
 for not delivering within that time, although the 
 delay was occasioned by an inevitable necessity. 2 
 
 The carrier is not responsible for losses arising from 
 the natural decay of perishable articles, or from the 
 fermentation or evaporation of liquors, where he has 
 exercised reasonable care in adopting precautionary 
 measures to prevent loss. 8 Nor is he responsible 
 where the owner's negligence has occasioned the loss, 
 as where the goods were not properly marked or 
 packed. 4 If the carrier accepts goods marked, he 
 is presumed thereby to agree to carry them in the 
 manner and position designated. Where a box was 
 marked "Glass, with care, this side up," and the 
 direction was not followed, whereby a bottle within 
 containing oil was broken, the carrier was held lia- 
 ble. 5 So, where the owner of a horse requested the 
 agent of a railroad company to have him carried in 
 a close car, but he was carried in an open, car on a 
 cold day, whereby he suffered serious injury from 
 exposure to the cold, the company was held liable. 6 
 
 If the owner is guilty of any fraud or imposition 
 
 ' Wibert v. N. Y. and Erie R. R. Co. 2 Kernan, 245 ; 19 Barb. 36. See 
 Laws of Xew York, 1880, oh. 140, § 36. 
 , * Harmony v. Bingham, 2 Kernan, 99 ; 1 Duer, 209. 
 
 * Farrar v. Adams, Bull. N. P. 69 ; Clark v. Barnwell, 12 Howard, 272. 
 
 * Elkins o. Boston and Maine R. R. Co. 3 Foster, 275 ; The Huntress, 
 Da vies, 92; Hastings v. Pepper, 11 Pick. 44; Cole v. Goodwin, 19 Wend. 
 263. 
 
 8 Hastings v. Pepper, 11 Pick. 41. 
 
 " Sager v. Portsmouth R. R. Co. 31 Maine, 228. 
 
AS COMMON CARBIEE OF GOODS. 413 
 
 npon the company, as by attempting to conceal the 
 value or nature of the goods, or to delude it by his 
 assumed carelessness in treating the box in which 
 they are inclosed as of little value, or misrepresents 
 the box as containing household goods when it 
 contains articles of much greater value, he cannot 
 recover of the company for the loss of the goods 
 in relation to which the fraud was practiced or the 
 misrepresentation made. But unless inquired of by 
 the company as to the value, however great it may 
 be, he is not bound to declare it. 1 
 
 Public Duty to cabby foe all Persons. — A 
 common carrier holds himself out to the public as 
 ready to carry the goods of all persons indifferently, 
 for a reasonable compensation. The law imposes on 
 him a public duty to do what he has assumed to be 
 ready to perform ; and if he refuses, without good 
 reason, to carry goods offered to him in the course of 
 his employment, having the means of carrying them 
 and the compensation being tendered to him, he is 
 liable to an action for the breach of this duty. 2 But 
 the common carrier may lawfully refuse to receive 
 goods offered for transportation when his means of 
 
 1 Relf v. Bapp, 3 W. & S. 25 ; Camden and Amboy R. R. Co. v. Bal- 
 dauf, 16 Penn. State, 78; Coxe v. Heisley, 19 id. 243; Jones v. Voorhees, 10 
 Ohio, 151 ; Phillips v. Earle, 8 Pick. 182 ; Allen v. Sewall, 6 Wend. 349 ; 2 
 id. 340 ; Doyle v. Kiser, 6 Ind. 242. 
 
 * K J. Steam Nav. Co. v. Merchants' Bank, 6 How. 382 ; The Huntress, 
 Da vies, 86 ; Dorr v. N. J. Steam Nav. Co. 1 Kernan, 492 ; Johnson v. Mid- 
 land R. Co. 4 Exch. 372, 373 ; Crouch v London and N. W. R. Co., 14 C. B. 
 255 ; 78 E. C. L. ; 25 Eng. L. andEq. 287, -where the rule was held to apply, 
 although one terminus of the route is beyond the realm. 
 
414 LIABILITY OF COMPANY 
 
 carrying them are exhausted. 1 So, also, he may 
 refuse to accept goods, which the person offering 
 has no right to intrust to him for that purpose. 2 
 
 A railroad company was required in its act of 
 incorporation to transport, in the order in which it 
 shall be, requested, " all goods, wares, minerals, and 
 merchandise, or other articles, which shall have been 
 deposited at the company's depots or convenient to 
 the said road, so that equal and impartial justice 
 shall be done to all owners of property by the said 
 company, who shall pay or tender to the officers of 
 the company the toll and freight due under the act 
 on the goods, wares, minerals, and merchandise, or 
 other articles, which they may wish transported." 
 The company entered into a contract with one express 
 company for three years, by which it was " to have 
 the exclusive right of said railroad for all express 
 purposes, at the various stations on said road, in so 
 far as the said railroad company control the matter, 
 and shall continue so to control the same ; provided, 
 nevertheless, that nothing in this contract shall be 
 construed to restrain the said railroad company from 
 carrying any freight, baggage or passengers at their 
 advertised rates, for any individual or individuals, 
 company or companies whatever." It was decided 
 that the company, as a common carrier, had public 
 duties to perform, and was liable for refusing without 
 
 1 Morse v. Slue, 1 Vent. 190, 238; Lane v. Cotton, 1 Ld. Ray. 646, 682; 
 Story on Bailments, § 608 ; Wibert t>. N. Y. and Erie R. R. Co. 2 Kernan, 
 245. 
 
 * Robinson v. Baker, 5 Cush. 18*7 ; Fitch v. Newberry, IDoug. (Mich.) 1. 
 
AS COMMON CAEEIEE OF GOODS. 415 
 
 sufficient cause to carry all goods offered for trans- 
 portation ; that being authorized to take private 
 property for public uses, it was designed for the 
 public accommodation, and could not confer exclu- 
 sive privileges on one man or set of men ; that an 
 express company engaged in the business of trans- 
 porting small packages, has an equal right with the 
 individual owners of packages, to the benefit of the 
 railroad ; and that the aforesaid contract securing to 
 one express company an exclusive right of transport- 
 ation in the passenger trains, was illegal and void. 1 
 
 Limitation op Liability by Special Conteact oe 
 Notice. — Railroad companies, like other common 
 carriers, have attempted to limit their liability as 
 quasi insurers, by notices and express contracts. 
 Their power to do this has been severely contested ; 
 but to a certain extent, it has been admitted in most 
 of the states where it has come before the courts. 
 Under what circumstances this limitation will take 
 effect, will now be the subject of examination. Com- 
 mon carriers, unlike other bailees except inn-keepers, 
 are said to exercise a public employment, and to be 
 under certain peculiar duties independent of their 
 contract. Generally, they may limit their business 
 to a particular kind of goods. An express-man, who 
 
 1 Sandford v, E. E. Co. 24 Penn. State, 378. As to the rights of express 
 companies in England, under statutes in relation to the rates of carriage by 
 railroad companies, see Pickford v. Grand Junct. E. Co. 10 M. & W. 899 ; 
 Parker v. Great Western E. Co. 11 C B. 645 ; S. C 8 Eng. L. and Eq. 426 ; 
 Edwards v. Same, 11 C. B. 588; S. C. 8 Eng. L. and Eq. 447 ; Crouch v. 
 Great N. E. Co. 84 id. 673. 
 
416 LIABILITY OP COMPANY 
 
 is accustomed to carry only small packages, is not 
 obliged to carry bales of cotton or bars of iron. 
 They have also the right to leave the business when 
 they choose. Railroad companies, which owe special 
 duties to the public^ in consideration of the special 
 privileges they have received, may not have the 
 same liberty in this respect as individual common 
 carriers. But all common carriers, individual or 
 corporate, having fixed the course of their employ- 
 ment are, as long as it remains so, bound to carry 
 goods offered them within the same, except for some 
 special reasons of inability or great inconvenience. 
 Having assumed this relation to the public, they are 
 not at liberty to decline its duties and responsibili- 
 ties as fixed and defined by law. They are therefore 
 bound, not only to accept the goods so offered to 
 them, but to accept them under the liability im- 
 posed on them by the law, — which is, to deliver them 
 safely at all events, unless prevented by the act of 
 God or the public enemies. For this extraordinary 
 liability as quasi insurers, they are accustomed and 
 are authorized to exact an increased compensation, 
 greater than would be sufficient to remunerate an 
 ordinary bailee responsible only for want of reason- 
 able diligence. This being so, a common carrier has 
 no right to refuse goods, offered for carriage at the , 
 proper time and place on tender of the usual rea- 
 sonable compensation, unless the owner will consent 
 to his receiving them under a reduced liability ; and 
 the owner can insist on his receiving the goods un- 
 der all the risks and responsibilities which the law 
 annexes to his employment. If a public notice — viz. 
 
AS COMMON CARRIER OF GOODS. 41 7 
 
 " All goods carried by A. B. will be at the risk of the 
 owner " — posted up by the carrier and brought home 
 to the owner, is competent to relieve him of this 
 extraordinary liability, it can only be on the ground 
 that the owner has, without any positive act of his 
 own and without any consideration, relinquished a 
 valuable right. The presumption, on the other hand, 
 is quite as strong that the owner intended to insist 
 on his rights as that he assented to their qualifica- 
 tion. 1 It is accordingly held by the Supreme Court 
 of the United States, and by the courts of New 
 Hampshire, New York, Ohio, and Georgia, that such 
 a general notice, brought home to the owner, does 
 not limit the carrier's liability. 2 
 
 1 " The burden of proof," said Nelson, J., in delivering the opinion of the 
 Supreme Court of the United States, "lies on the carrier; and nothing short 
 of an express stipulation by parol or in writing should be permitted to dis- 
 charge him from duties which the law has annexed to his employment. The 
 exemption from these duties should not depend upon implication or infer- 
 ence, founded on doubtful and conflicting evidence ; but should be specific 
 and certain, leaving no room for controversy between the parties." N. J. 
 Steam Nav. Co. v. Merchants' Bank, 6 How. 383. 
 
 3 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 382, 383 ; Moses 
 ■a. Boston and Maine Railroad, 4 Foster, 7 1 ; Moses v. Boston and Maine Rail- 
 road, 32 N. H. 535 ; Kimball v. Rut. and Bur. R. R. Co., 26 Vt. 256, 257 ; Cam- 
 den and Amboy Railroad and Transportation Co. v. Burke, 13 Wend. 611 ; 
 Hollister v. Nowlen, 19 id. 234; Cole v. Goodwin, id. 251 ; Clark v. Faxton, 
 21 id. 153 ; Camden and Amboy Railroad and Transportation Co. v , Belk- 
 nap, id. 354 ; Slocum v. Fairchild, 1 Hill, 292 ; Dorr v. N. J. Steam Nav. Co., 
 4 Sandf. 136 ; 1 Kernan, 485; Jones u. Voorhies, 10 Ohio, 145; Davidson v. 
 Graham, 2 Ohio State, 131 ; Graham v. Davis, 4 id 376; Fishn. Chapman, 
 2 Kelly (Geo.) 349 ; Logan v. Pontchar. R. R. Co., 11 Rob. (La.) 24; Baldwin 
 D. Collins, 9 id. 468 ; Michigan Central R. R. Co. v. Ward, 2 Gibbs(Mich.) 545. 
 In Vermont it is said, " A mere general notice, when brought to the knowl- 
 edge of the owner, ought not, perhaps, to have that effect, unless there is 
 very clear proof that the owner expressly assented to that as forming the 
 basis of the contract." Farmers and Mechanics' Bank v. Champlain Trans- 
 portation Co., 23 Vt 206. 
 
 28 
 
418 LIABILITY OF COMPANY 
 
 On the other hand, such notices are in Penn- 
 sylvania allowed to limit the common carrier's 
 liability ; but it is there held that they must be ex- 
 plicit and unambiguous, and brought to the knowl- 
 edge of the owner ; and where the passenger could 
 not read the English language, a notice, in that 
 language printed on his ticket was held not sufficient 
 proof of knowledge. 1 There are decisions in Maine 
 which imply that such general notices may have 
 effect; but the opinion was unnecessary in both 
 cases : in the first, the notice being a qualified one, 
 and also of no effect because not made known to the 
 owner; and in the second, there being a special 
 contract. In that State, therefore, the question may 
 still be regarded as unsettled. 2 
 
 It does not, however, follow, because such general 
 notices, from which no contract can be reasonably 
 implied, are of no avail to restrict the common car- 
 rier's liability, that this liability cannot be restricted 
 by an express contract between the carrier and the 
 owner. The stringent liability of the common car- 
 rier is designed for the protection of the owner. 
 The preservation of his property, the safe custody, 
 carriage, and delivery of the goods, are its object; 
 and these concern him alone, and not the public. 
 "When he enters into an express contract, there is no 
 reason why he should not be bound by it. It is an 
 
 1 Camden and Amboy RailroadiCo. v. Baldauf, 16 Penn. State, 6*7 ; Bing- 
 ham v. Rogers, 6 W. & S. 495 ; Laing v. Colder, 8 Barr, 378. 
 
 ' Bean v. Green, 3 Fairfield, 422 ; Sager v. Portsmouth S. and P. and E. E. 
 E. Co., 31 Maine, 228 ; see Barney v. Prentiss, 4 Har. & 3. 317 ; Thomas v. 
 Boston and Providence E. E. Corp., 10 Met. 4*72. 
 
AS COMMON CAEEIER OF GOODS. 419 
 
 established maxim of the common law, that any man 
 may renounce a benefit or waive a privilege which 
 the law has conferred upon him; subject only to the 
 qualification, that he cannot renounce that which has 
 been introduced for the benefit of a third party. 
 Thus, a debtor may waive the pleas of bankruptcy, 
 infancy, or the statute of limitations ; and an indorser 
 of a promissory note may waive demand and notice, 
 but not so as to prejudice antecedent parties. 1 This 
 principle applies here, where the extraordinary lia- 
 bility of the common carrier is the privilege of the 
 owner, and may be waived by him. The delivery 
 of goods to the carrier with knowledge of a general 
 notice is not such a waiver, but an express contract 
 may have that effect. There is nothing in the rela- 
 tions of the parties which renders them incompetent 
 to make such a contract ; but on the other hand 
 their capacity seems to be j ustified by these relations. 
 The common carrier may graduate his compensa- 
 tion according to his liability — charging more when 
 liable as quasi insurer, and less when liable only for 
 actual negligence. The owner may desire to effect 
 his insurance elsewhere, and to contract with the 
 carrier for a less compensation in consideration of 
 a reduced liability. There is no incapacity of the 
 parties to contract. The subject-matter consists of 
 rights of property which concern no third party. 
 The owner is under no duress — having the right to 
 
 ' Quilibet potest renunciare juri pro se introducto. — Broome's Legal 
 Maxims, 547. 
 
420 LIABILITY OF COMPANY 
 
 insist on the carriage of his goods by the carrier 
 under the liabilities imposed by the law. 
 
 There is no public policy which prohibits the com- 
 mon carrier being relieved from his extraordinary 
 liability as quasi insurer, by express contract. Public 
 policy would not justify a contract of impunity for 
 his fraud or crime; and, perhaps, not for any negli- 
 gence. But at common law, he is liable for losses 
 by accident, mistake, and many inevitable occur- 
 rences, against which no human vigilance or foresight 
 can provide, and not falling within the excepted perils 
 of the act of God or the public enemies, — such as 
 losses by robbers and mobs, accidental fires, mis- 
 taking of lights, and the agency of propelling power 
 in steam engines, without any actual fault on the 
 part of the carrier. A stipulation for exemption from 
 loss not occasioned by his negligence or default, 
 would not be providing impunity for misconduct, or 
 induce habits of carelessness and indifference preju- 
 dicial to other members of the community who have 
 not waived their common-law rights. 
 
 That a common carrier may limit his liability by 
 an express contract with the owner, has been decided 
 in Maine, New Hampshire, Vermont, New York, 
 Pennsylvania, Ohio, Kentucky, South Carolina, and 
 by the Supreme Court of the United States. The 
 contrary doctrine was held in Georgia, on the 
 authority of decisions in New York which are now 
 overruled. 1 
 
 1 Sager v. Portsmouth S. and P. and E. B. R. Co., 81 Maine 228 ; Moses v. 
 Boston and Maine R. R., 4 Foster, 90 ; Farmers and Mechanics' Bank v. Cham- 
 plain Transportation Co., 23 Vt. 206 ; Kimball v. Rut. and Bur. E. E. Co., 
 
AS COMMON CARRIER OP GOODS. 421 
 
 The express contract may be written or oral. It 
 ordinarily consists of a bill of lading or receipt, con- 
 taining the limitation, which is delivered to the 
 owner, and being accepted by him, becomes a con- 
 tract between the parties. 1 
 
 A general notice on a passenger's ticket that his 
 luggage is at his own risk, might not have the same 
 effect. His passage-money covers both the carriage 
 of his person and of his luggage. Its prepayment, of 
 which the ticket is the evidence, is sometimes neces- 
 sary to secure a seat, in many cases reduces the price, 
 and is in most cases convenient. These circumstances 
 and others render it impracticable for a passenger 
 to decline a ticket which contains a clause of limi- 
 tation, and should prevent its acceptance being con- 
 strued as a contract for such limitation. In the 
 cases in which such contracts have been allowed, 
 except in Maine and Pennsylvania where effect is 
 given to general notices, the contract was uniformly 
 contained in a bill of lading, and this question did 
 not arise 1 . 
 
 A special contract to the effect that the goods 
 
 26 id. 24/7; Parsons v. Monteath, 13 Barb. 353; Moore v. Evans, 14 id. 524; 
 Dorr v. N. J. Steam Nav. Co., 1 Kernan, 485 ; S. C, 4 Sandf. 136 ; Mercan- 
 tile Mat. Ins. Co. v. Chase, 1 E. D. Smith, 115 ; Beckmann. Shouse, 5 Rawle, 
 189 ; Atwood v. Reliance Trans. Co., 9 Watts, 81 ; Bingham -o. Shouse, 6 
 Watte & S. 495 ; Laing v. Colder, 8 Barr, 479 ; Davidson v. Graham, 2 Ohio 
 State, 131; Graham v. Davis, 4 id. 362 ; Beno v. Hogan, 12 B. Monroe, 63; 
 Swindler v. Hilliard, 2 Eich. 286 ; N. J. Steam Nav. Co. v. Merchants' Bank, 
 6 Howard, 381-385; contra, Fish v. Chapman, 2 Geo. 349. It is held in 
 Michigan th«t a railroad company is bound to continue a common carrier 
 under the liabilities incident to the employment, and cannot modify them 
 by any stipulations. Michigan Central R. R. Co. v. Ward, 2 Gibbs, 538. 
 
 1 See Walker v. York and Midland R. Co., 22 Eng. L. and Eq. 315 ; York, 
 Newcastle and Berwick R. Co. v. Crisp, 24 id. 396. 
 
422 LIABILITY OF COMPANY 
 
 are at the owner's risk, or excluding certain enumer- 
 ated risks, does not relieve the comm m carrier from 
 the consequences of the negligence, fraud, or crime of 
 himself or of his servants, and according to the cur- 
 rent of the authorities he is, notwithstanding such a 
 contract, still bound to exercise at least the ordinary 
 care incumbent on other bailees, and is liable for a 
 loss occasioned by his negligence. 1 In Ohio, notwith; 
 standing such a special contract, he is still liable for 
 losses arising from a neglect of that high degree of 
 diligence enjoined on him by his public employment, 
 which still remains greater than that required of an 
 ordinary bailee for hire. 2 On the whole, the power 
 of the common carrier by a special contract to 
 relieve himself from liability for any losses, but 
 those which are the result of inevitable accident, 
 and with which his own default did not combine, 
 cannot well be sustained on grounds of public 
 policy. 
 
 Qualified notices published in the newspapers, 
 or posted up in the common carrier's office, as well 
 as printed on the passenger's ticket, may be allowed 
 to impose conditions on the owner of the goods 
 or luggage, when brought to his knowledge. The 
 carrier has a right to inform himself of the value 
 of the goods so as to graduate the care he should 
 apply, and the compensation he is entitled to receive. 
 
 1 Atwood v. Reliance Trans. Co., 9 Watts, 87 ; Reno o. Hogan, 12 B. 
 Monroe, 63; Parsons v. Monteath, 13 Barb. 360; IT. J. Steam Nav. Co. v. 
 Merchants' Bank, 6 How. 383 ; Sager v. Portsmouth, S. and P. and E. R. R. 
 Co., 31 Maine, 228; Slocum v. Fairchild, 1 Hill, 292; Swindler v. Hilliard, 
 2 Rich. 286 ; Camden and Amboy R. R. Co. v. Baldauf, 16 Penn. State, 6*71. 
 
 a Davidson v. Graham, 2 Ohio State, 131 ; Graham v. Davis, 4 id. 362. 
 
AS COMMON CARRIER OF GOODS. 423 
 
 The owner, when inquired of in these respects, is 
 bound to return a true answer, or his fraudulent 
 conduct will bar his recovery for a loss. 1 So, if the 
 carrier publishes a notice that he will not be respons- 
 ible for goods beyond a certain amount or of a 
 certain kind or value without notice thereof, and 
 payment of additional freight, such a notice is a 
 reasonable method of obtaining information, which 
 he is entitled to ; and if brought home to the owners 
 is, by the current of American authorities, sufficient to 
 excuse the carrier for losses of the kind and amount 
 excluded, in the absence of his own negligence. 2 
 But such notices must be brought to the knowl- 
 edge of the passenger before commencing his 
 journey, in order to affect his rights. 8 Thus, if a 
 notice is printed in a language with which he 
 is unacquainted, the fact that it is printed upon 
 a ticket which he receives does prove his knowl- 
 edge of it.* So also, if the notice is printed 
 on the back of a passenger's ticket, and detached 
 from the part which ordinarily contains all that it 
 is material for him to know, there is no legal pre- 
 sumption that at the time of receiving the ticket, 
 ai.d before the train left the station, he had knowl- 
 
 1 Allen v. Sewall, 2 Wend. 340 ; 6 id. 349 ; Phillips v. Earle, 8 Pick. 
 182; Coxe v. Heisley, 19 Penn. State, 243 ; Camden and Amboy R. R. Co. 
 v. Baldauf, 16 id. 78; Doyle v. Keiser, 6 Ind. 242; Jones a . Voorhees, 10 
 Ohio, 151 ; Story on Bail. §§ 565-570. 
 
 * Orange Co. Bank v. Brown, 9 Wend. 85 ; Moses v. Boston and Maine 
 R. R., 4 Foster, 71 ; Farmers and Mechanics' Bank v. Champlain Transporta- 
 tion Co., 23 Vt. 206 ; Baldwin v. Collins, 9 Rob. (La.) 468 ; Brown v. Eastern 
 R. R. Co., 11 Cush. 97. 
 
 s Snnford v. Housatonic R. R. Co., 11 Cush. 155. 
 
 ' Camden and Amboy R. R. Co. v. Baldauf, 16 Penn. State, 67. 
 
424 LIABILITY OF COMPANY 
 
 edge of the conditions and limitations imposed in 
 the notice on the transportation of luggage ; and 
 whether he was informed of the contents before 
 starting on his journey, is a question of fact for the 
 jury. 1 
 
 1 Brown v. Eastern R. R Co., 11 Cush. 91. In an action against the com- 
 pany for luggage lost while in its possession, it appeared that the plaintiff 
 received from it a ticket on the face of which were printed the following 
 words : " Not transferable. This ticket entitles to » passage in the first 
 morning train of this day only, via the Eastern, the Portland, Saoo, and 
 Portsmouth, the Atlantic and St. Lawrence, the Kennebec and Portland 
 Railroads to Brunswick or Bath. At Bath, steamboats connect with Rich- 
 mond, Gardiner, Hallowell and Augusta. Fare paid to Bath. One dollar will 
 be refunded to the holder of this ticket by the conductor on the Kennebec 
 and Portland Railroad." On the back of the ticket were the following 
 words : " Notice. Passengers are not allowed to take, nor will these com- 
 panies be responsible for baggage if it exceed fifty dollars in value, unless 
 freight on any addition thereto be paid in advance ; and this notice forms 
 part of all contracts for transportation of passengers and their effects." The 
 jury were instructed at the trial that the plaintiff's taking the ticket raised 
 no legal presumption that she read the printed matter; that it was a ques- 
 tion of fact whether she knew the contents before she started on her 
 journey, and that if she did not read it until she was on her way, her rights 
 were not affected by it. Dewey, J., delivering the opinion of the court, 
 said, " The limitation and notice thereof were in the present instance 
 attempted to be established under these circumstances. The traveler, a 
 female, had delivered her trunks to the baggage-master of the defendants, 
 to be carried to Freeport. They were received by him without any notice of 
 any limitation of liability, and marked for their proper destination. Sub- 
 sequently, the owner applied for her passage-ticket to Freeport, and was 
 informed that they did not sell tickets to Freeport ; but that she could buy 
 one for Brunswick, a place more remote, with the privilege of stopping at 
 Freeport, and having one dollar refunded ; and that thereupon she paid 
 three dollars, and received a ticket for Brunswick. This ticket had on its 
 face the route, and various railroads to be passed over, and the notice that 
 one dollar would be refunded to those stopping at Freeport. There was no 
 notice on the face of the ticket of any conditions or limitations as to trans- 
 porting the baggage of passengers. The only notice as to that, was on the 
 back side of the ticket. No direct notice was given by the ticket-vendor, 
 nor was any request made to her to read the limitations and conditions 
 stated on the back of the ticket. It was admitted that there was no actual 
 
AS COMMON CARRIER OF GOODS. 425 
 
 Delivery to the Company. — The liability of a 
 railroad company commences when the goods have 
 been delivered to its authorized agents for trans- 
 portation. This delivery is ordinarily made at its 
 stations to a freight-agent or station-master. But 
 if it is its custom to receive goods at some other 
 place, as at an office or wharf not immediately ad- 
 joining its track, its liability commences when de- 
 livery has been made to it according to its custom. 1 
 
 or constructive notice of the limitation of the^ carrier's liability, unless the 
 same was derived from the ticket received by the plaintiff. This being so, 
 the case was in our opinion properly put to the jury, and their verdict for the 
 plaintiff may well be sustained. A mere passenger-ticket in the form in 
 general use would not naturally induce to the minute reading of its contents. 
 The party receiving it might well suppose that it was a mere check, signify- 
 ing that the party had paid his passage to the place indicated on his ticket. 
 But if it be correct to hold that if this limitation had been stated on the 
 face of the ticket, and in connection with the name of the place to which 
 the party was to be carried, and so might be presumed to have been read, 
 and therefore binding upon the person receiving the ticket ; yet, neverthe- 
 less, a statement or notice to this effect, placed on the back of the ticket, and 
 detached from what ordinarily contains all that is material to the pas- 
 senger, would not raise a legal presumption that the party at the time of 
 receiving the ticket and before the train had left the station, had knowledge 
 of the limitation or conditions which the carrier had attached to the trans- 
 portation of the baggage of passengers. The manner adopted by the 
 defendants to give notice of such limitation and conditions, fails to furnish 
 that certain information or knowledge which must be brought home to the 
 passenger to exonerate the carrier from the full common-law liability as to 
 such baggage, and therefore leaves the passenger the right to recur to the 
 carrier for the damages he may sustain in the loss of his baggage, irrespective 
 of the limitation." 
 
 ■ Bun-ell v. North, 2 Car. & Kir. 680; Phillips ■„. Earle, 8 Pick. 182; 
 Merriam v. H. and N. H. R. R. Co. 20 Conn. 354 ; Camden and Amboy E. R. 
 Co. n. Belknap, 21 Wend. 354; Logan v. Pontchartrain R. R. Co. 11 Rob- 
 (La.) 24 ; Pickford v. Grand Junction R. Co. 12 M. & W. 766. 
 
 The proprietors of a railroad who receive passengers and commence 
 their carriage at the station of another road, are bound to have a servant 
 there to take charge of luggage, until it is placed in their cars ; and if it is 
 
426 LIABILITY OF COMPANY 
 
 As a general rule, a delivery does not take effect, 
 so as to render the company responsible for a loss, 
 by a deposit of the goods where the company are 
 accustomed to receive them, until such deposit is 
 made known to the authorized agents of the com- 
 pany. 1 This rule may be varied by the agreement 
 or usage of the company. If it agrees that goods 
 may be deposited for transportation at a particular 
 place, without express notice to its agents, such 
 deposit is constructive notice to the company, and 
 constitutes an acceptance by it. So, where its usage 
 is to receive for -transportation goods left at a 
 particular place without any express notice of the 
 deposit, its agreement may be implied to waive the 
 notice and consent to such a deposit as delivery. 
 Thus, where the Hartford and New Haven Railroad 
 Company was accustomed to receive goods at its 
 private dock in New York, which was in its own 
 exclusive use for the purpose of receiving goods to 
 be transported, without its agents being notified of 
 the deposit, the company was held liable as a com- 
 mon carrier for the loss of the goods after such a 
 deposit without any special notice thereof to its 
 agents. 2 
 
 the custom of the baggage-master of the station, in the absence of such 
 servant, to receive and take charge of luggage in his stead, the proprietors 
 will be responsible for luggage so delivered to him. Jordan ■«. Fall River 
 R. R. Co. 5 Cush. 69. 
 
 1 Selway v. Holla way, 1 Ld. Ray. 46 ; Buckman v. Levi, 3 Camp. 414 ; 
 Packard v. Getman, 6 Cowen, 75; Trowbridge v. Chapin, 23 Conn. 595; 
 Wright v. Caldwell, 3 Mich. 51 ; Slim *. Great Northern R. Co. 14 G B. 647 ; 
 78 E. C. L. 
 
 2 Merriam v. H. and N. H. R. R. Co. 20 Conn. 354. It was held also 
 that the fact that the owner was influenced by the usage need not be 
 
AS COMMON CAEEIEE OF GOODS. 42 7 
 
 The company may, according to some authorities, 
 make itself liable for goods before reaching its ter- 
 minus and while in the charge of another company, 
 
 proved, but was to be presumed. On the question of what constitutes 
 acceptance by the company, Storrs, J., Baid, — "A contract with a common 
 carrier for the transportation of property, being one of bailment, it is neces- 
 sary, in order to charge him for its loss, that it be delivered to and accepted 
 by him for that purpose. But such acceptance may be either actual or con- 
 structive. The general rule is, that it must be delivered into the hands of 
 the carrier himself, or of his servant, or some person authorized by him 
 to receive it; and if it is merely deposited in the yard of an inn, or upon a 
 wharf to which the carrier resorts, or is placed in the carrier's cart, vessel, 
 or carriage, without the knowledge and acceptance of the carrier, his ser- 
 vants or agents, there would be no bailment or delivery of the property, 
 and he, consequently, could not be made responsible for its loss. Addison 
 on Cont. 809. But this rule is subject to any conventional arrangement 
 between the parties in regard to the mode of delivery, and prevails only 
 where there is no such arrangement. It is competent for them to make 
 such stipulations on the subject as they see fit; and when made, they, and 
 not the general law, are to govern. If therefore, they agree that the prop- 
 erty may be deposited for transportation at any particular place, and with- 
 out any express notice to the carrier, such deposit merely would be a suf- 
 ficient delivery. So if, in this case the defendants had not agreed to dis- 
 pense with express notice of the delivery of the property on their dock, 
 actual notice thereof to them would have been necessary ; but if there was 
 such an agreement, the deposit of it there, merely, would amount to con- 
 structive notice to the defendants, and constitute an acceptance of it by 
 them. And we have no doubt, that the proof by the plaintiff of a con- 
 stant and habitual practice and usage of the defendants to receive property 
 at their dock for transportation, in the manner in which it was deposited 
 by the plaintiff, and without any special notice of such deposit, was com- 
 petent, and in this case sufficient, to show a public offer by the defendants, 
 to receive property for that purpose, in that mode ; and that the delivery of 
 it there, accordingly, by the plaintiff, in pursuance of such offer should be 
 deemed a compliance with it on his part; and so to constitute an agreement 
 between the parties, by the terms of which the property, if so deposited, 
 should be considered as delivered to the defendants, without any further 
 notice. Such practice and usage were tantamount to an open declaration, a 
 public advertisement by the defendants, that such delivery should, of itself, 
 be deemed an acceptance of it by them, for the purpose of transportation ; 
 and to permit them to set up against those who had been thereby induced 
 to omit it, the formality of an express notice, which had thus been waived, 
 
428 LIABILITY OP COMPANY 
 
 where the two companies conduct business as part- 
 ners, or have made a joint contract for the transport- 
 ation of the goods. 1 
 
 In order to charge the company as a common car- 
 rier, the goods must be accepted in that capacity for 
 carriage. When received for storage merely, while 
 so held, it would not be liable otherwise than as 
 warehouseman. If the consignor desired the goods 
 to remain in its warehouse for some days, or until 
 further instructions, or a passenger desired the same 
 privilege for his luggage, the company is liable as a 
 warehouseman, and not as a common carrier, for a 
 loss, while the goods are so deposited for the con- 
 venience and at the order of the owner. But it is 
 responsible as a common carrier for injuries to those 
 which have been delivered to it for transportation, 
 while they are deposited in its warehouse for its own 
 convenience, and awaiting its earliest practicable 
 means of conveyance. In such a case, the storage 
 is merely accessory to the carriage, and the company 
 is liable as a common carrier for them. 2 Thus, where 
 
 would be sanctioning the greatest injustice, and the most palpable fraud. 
 The present ease is precisely analogous to that of the deposit of a letter for 
 transportation in the letter-box of a post-office, or foreign packet-vessel, 
 and to that of a deposit of articles for carriage in the public box provided 
 for that purpose, in one of our express offices ; where it would surely not 
 be claimed, that such a delivery would not be complete without actual 
 notice thereof to the head of these establishments or their agents." 
 
 ' Bradford v. S. C. R. R. Co. 1 Rich. 201 ; Harta. Rensselaer and Saratoga 
 R. R. Co. 4 Selden, Si ; Noyes v. Rut. and Bur. R. R. Co. 21 Vt. 110. See 
 post p. 461-458. 
 
 2 Piatt v. Hibbard, 1 Cowen, 497 ; Spade v. Hudson River R. R. Co. 16 
 Barb. 383 ; Blossom v. Griffin, 3 Kernan, 569 ; Clarke v. Needles, 25 Penn. 
 State, 338 ; Moses v. Boston and Maine R. R. Co. 4 Foster, 11. In this last 
 case, the cartman who delivered the goods to the company, without being 
 
AS COMMON CARRIER OF GOODS. 429 
 
 a person arrived in the city of New York about 
 noon, and intended to take passage in the next train 
 of a railroad company, which did not leave till the 
 next day, having delivered his luggage at its office 
 to its agents, where they were accustomed to receive 
 that of persons intending to take the next convey- 
 ance, it was held to be liable as a common carrier 
 for the luggage as soon as it was so received. 1 
 
 The goods must be delivered to the custody and 
 possession of the company, in order to fasten on it 
 the liability of a common carrier. While the owner 
 retains them in his own, he alone must sustain the 
 damage to which his negligence may have contribut- 
 ed. 2 Thus, where a passenger kept his overcoat on 
 his seat in the car, and forgetting to take it when he 
 left the car, it was afterwards stolen, the company 
 was not liable for the loss. Being an article of wear- 
 ing apparel in present use, and in the care and keep- 
 ing of the traveler for that purpose, it is to be 
 regarded in the same light as if it had been on his 
 person. 8 The same rule would, doubtless, be applied 
 to the carpet-bags or valises which passengers are 
 accustomed to keep with them in the cars for their 
 
 authorized to give such instructions, told its agent that the owner did not 
 ■wish the goods to be sent till further orders. Before that, the goods of the 
 owner had uniformly been sent to the company without instructions. It 
 was held that the instructions did not bind the owner, and while the com- 
 pany kept back the goods it was liable as a common carrier. 
 
 1 Camden and Amboy R. R. Co. v. Belknap, 21 Wend. 354. 
 
 ' East India Co. v. Pullen, 1 Strange, 690 ; Brind ». Dale, 8 Car. <fe P. 
 207 ; S. C, 2 M. & W. 115. 
 
 ' Tower v. Utica and Schenectady R. R. Co. 1 Hill, 41 ; Cohen v. Frost. 
 2 Duer, 335 ; Steamer Crystal Palace v. Vanderpool, 16 B. Monroe, 302. But 
 see Great Northern R. Co. v. Shepherd, 8 Exch. 80. 
 
430 LIABILITY OP COMPANY 
 
 own convenience, unless they were lost while in the 
 possession of the company's servants. But if they 
 were put into the passenger cars for its convenience, 
 or were at any time in the possession of its servants, 
 it is responsible for their safety, unless exclusive 
 possession has been assumed by the passenger. 1 If 
 the owner or his servant, for greater caution, accom- 
 panies the goods in their transit, although exercising 
 some oversight of them, but still leaving them in 
 the exclusive custody of the company, it will be still 
 responsible as a common carrier for their safety. 2 
 
 Prepayment of fare, or an express stipulation for 
 freight, or an entry on the freight or way-bill, or 
 a written memorandum, is not necessary to de- 
 livery so as to render the company responsible as a 
 common carrier. It is sufficient for the goods to be 
 delivered in such a manner that the owner impliedly 
 agrees to pay freight, and the company is entitled 
 to charge it. 8 
 
 The acceptance, so as to bind the company, must 
 be made by an agent authorized to make it. 4 If the 
 servant of another company is accustomed to receive 
 luggage for it with its consent, he will bind it. 5 
 
 ! Richards v. London, Brighton, <feo. R. Co. 7 C. B. 839 ; Butcher v. Lon- 
 don and S. W. R. Co. 29 Eng. L. and Eq. 347. 
 
 ' Robinson v. Dunmore, 2 B. & P. 419; Hollister v. Nowlen, 19 Wend. 
 236, 237. 
 
 * Sewall v. Allen, 6 Wend. 350 ; Citizens' Bank v. Nantucket Steamboat 
 Co., 2 Story, 35 ; Wood v. Devin, 13 111. 746 ; Choteau r. Steamboat St. An- 
 thony, 16 Missouri, 222. A by-law of the company, requiring the goods to 
 be booked before its responsibility commences, does not make the booking 
 necessary to such responsibility where no means for booking had been pro- 
 vided by it. Great West. R. Co. v. Goodman, 12 C. B. 313 ; 74 E. C. L. 
 
 ' Blanchard v. Isaacs, 3 Barb. 388 ; Elkins v. Boston and Maine R. R, 
 3 Foster, 275. 
 
 6 Jordan v. Fall River R. R. Co. 5 Cush. 69. 
 
AS COMMON CAERIEB OF GOODS. 431 
 
 The delivery must be made to an agent au- 
 thorized to receive the goods, in order to charge 
 the company. 1 So, also, they must be received 
 by the agent on account of the company, and not 
 on his own private account. A conductor, by the 
 usage of railroads, has no personal charge of 
 merchandise. If persons instrust to him parcels to 
 carry on his own account, and pay him a compensa- 
 tion which does not go to the company, and they 
 have no good reason to suppose is so applied, the 
 company would not be liable in case of loss. 2 But 
 where parcels are delivered to a general agent ac- 
 customed to receive them for the company, the pre- 
 sumption is that they are received on its account ; 
 and private instructions by the company to its ser- 
 vants, not known to the owner or the public, not to 
 take such parcels except on their own account, will 
 not relieve it from liability. 8 
 
 ' Blanchard v. Isaacs, 3 Barb. 388 ; Elkins v. Boston and Maine B. E., 
 3 Foster, 2*75. 
 
 3 Elkins v. Boston and Maine E. R., 3 Foster, 2'75. 
 
 8 Mayall v. Boston and Maine E. E., 19 N. H., 122. In this case the 
 plaintiff had delivered a package of bonnets to the baggage-master of the 
 defendants at their station, whose duty it was to take charge of all mer- 
 chandise to be transported by them, and who put the package on board of 
 the cars. The defendants claimed that they were not liable for a loss of the 
 bonnets, on the ground that all such packages were carried by the servants 
 on their own account, who received the compensation as their perquisite. 
 Gilchrist, C. J. : " The instruction of the court is, in substance, that if the 
 plaintiff employed her own individual agent to carry the package on his 
 own account, the defendants would not be responsible ; but if it were de- 
 livered to the general agent of the defendants, to be transported by them 
 for hire, they would be liable, notwithstanding they might have given pri- 
 vate instructions to their general agent that packages should not be sent by 
 
432 LIABILITY OF COMPANY 
 
 The liability of a railroad company for bank bills, 
 drafts, and other evidences of value intrusted to its 
 servants, has not yet received judicial discussion. Its 
 duty to receive this species of property for carriage 
 may be doubted. It is incorporated specially for 
 
 passenger trains on their account, but should be on the individual account 
 of the person undertaking to transport them, unless such instructions were 
 known to the plaintiff or to the publift generally. 
 
 " This instruction is undoubtedly correct. Any arrangement made be- 
 tween a carrier and his servant, by which the servant is to be paid for the 
 carriage of particular parcels, will not exempt the carrier from responsk 
 bility for the loss of them, unless such an arrangement is known to the 
 owner thereof, so that he contracts exclusively with the servant. Allen v. 
 Sewall, 2 Wend. 32V. So the mere fact that the driver of a stage-coach is 
 accustomed to carry articles for hire, for his own particular advantage, will 
 not render the proprietors of the coach liable. Bean v. Sturtevant, 8 N. H. 
 Rep. 325. Whenever it appears that there is no intention to trust the car- 
 rier with the custody of the goods, he will not be held liable. Brind v. 
 Dale, 8 Car. & P. 207. This doctrine is the dictate alike of common sense 
 and of justice. It is the party only with whom the contract is made, who 
 incurs any liability to the owner of the goods. The mere fact that the 
 bailee is in the employ of a railroad corporation is not sufficient to make 
 the corporation liable. 
 
 " Where, however, the corporation have a general agent, who is employed 
 by them for the express purpose of receiving and transporting merchandise 
 for hire, and is held out to the world as invested with authority for this pur- 
 pose, if goods are delivered to him to be transported in the way of his duty, 
 the corporation will be liable for the manner in which that duty is performed, 
 and the contract of bailment may be regarded as made with them. In the 
 present case there was such a general agent. It was his duty to take charge 
 of all the baggage of passengers, and of all merchandise to be transported 
 by the defendants and a delivery to him was a delivery to the corporation. 
 
 " The defendants contend that all packages not belonging to passengers go- 
 ing by the passenger train, were carried by the brakemen, firemen and others, 
 on their own individual account, and that the corporation received no compen- 
 sation when goods were thus transported. No private instructions or agree- 
 ments between the corporation and their servants, not published to the 
 world at large, nor communicated to the plaintiff, could affect her right to 
 recover. A contrary doctrine would seem to infringe upon the principle 
 that a person cannot be bound by a contract to which he is not a party." 
 See Farmers and Mechanics' Bank v. Champlain Trans. Co., 23 Vt. 204. 
 
AS COMMON CAKRIER OF GOODS. 433 
 
 the transportation of passengers, with their luggage, 
 and of merchandise. The postal arrangements by 
 which "bills and drafts may be transmitted, the sys- 
 tem of commercial exchange, and the propriety of 
 the owner or some one in his employ accompanying 
 the transmission of articles of such great value, are 
 considerations appropriate to the question of its duty 
 to carry them. If it is allowed by its charter to 
 transport such articles, and is accustomed to do so, 
 it is unquestionably liable as a common carrier, when 
 its authorized agents receive them on its behalf, not- 
 withstanding by a private arrangement with them, 
 not known to the owner, they are to have the 
 compensation as their perquisite. But if it is not 
 required to undertake their carriage, and does not 
 profess by its course of business to carry them, ac- 
 cording to the principles which have been applied 
 to the proprietors of stage-coaches and steamboats, 
 it is not responsible for such articles when intrusted 
 to persons in its employ, who receive the compensa- 
 tion for themselves and not on account of the com- 
 pany. 1 And although the company is accustomed to 
 transport merchandise generally, the burden of proof 
 seems to be on the owner to prove that it has au- 
 thorized even its general freight-agent to contract 
 for the carriage of bank bills and drafts; their 
 transmission not being within the ordinary business 
 
 1 Allen v. Sewall, 6 Wend. 335 ; 2 id. 327 ; Bean v. Sturtevant, 8 N. H. 
 146 ; Hoeea v. M'Orory, 12 Ala. 349 ; Farmers and Mechanics' Bank v. Cham- 
 plain Trans. Co., 23 Vt. 186; Choteau v. Steamboat St. Anthony, 16 Mis- 
 souri, 216 ; 12 id. 389 ; 11 id. 226 ; Mechanics and Traders' Bank v. Gordon, 
 6 La. An. 604. 
 
 29 
 
434 LIABILITY OF COMPANY 
 
 of such carriers, and the transportation of passengers 
 and merchandise not necessarily implying that it 
 holds itself out as a common carrier of these articles. 1 
 
 Deliveey by the Company.— The 'prima fade 
 duty of a common carrier, of goods is ordinarily to 
 make a personal delivery to the party entitled to re- 
 ceive them at their destination. - But this general rule 
 is not of universal application. If there is a place of 
 delivery agreed on between the parties, it controls 
 the legal implication. A contract to deliver at some 
 other place than to the owner or consignee person- 
 ally, may also be implied from usage. If there is a 
 well-known and established usage, in respect to which 
 the parties must be presumed to have contracted for 
 the carrier to leave the goods at his usual stopping- 
 place, his responsibility ends when he has deposited 
 them there. 8 So, where the custom is for a carrier 
 by water to deliver goods to the custody of the 
 wharfinger, his duty is discharged on such deliv- 
 ery. 4 Such a usage, it is evident, would be readily 
 implied in the case of a carrier by water or other- 
 wise, who would be obliged to resort to other means 
 of conveyance in order to make a personal delivery. 
 
 1 Allen v. Sewall, 6 Wend. 335 ; 2 id. 32T ; Citizens' Bank v. Nantucket 
 Steamboat Co., 2 Story, 16; Choteau v. Steamboat St. Anthony, 16 Missouri, 
 216. But see Farmers and Mechanics' Bank v. Champlain Trans. Co., 23 
 Vt. 186. 
 
 3 Delivery to the person to whose care the goods are marked, in the 
 absence of other directions, discharges the company. Bristol v. Rensselaer 
 and Saratoga R. R. Co., 9 Barb. 158. 
 
 8 Gibson i>. Culver, 11 Wend. 305 ; Story on Bail. § 544. 
 
 * Farmers and Mechanics' Bank v. Champlain Trans. Co., 16 Vt. 52 ; 18 
 id. 181; 23 id 186. 
 
AS COMMON OAEEIER OF GOODS. 435 
 
 If no contract to make a personal delivery can be 
 implied where the usage is to deliver only at cer- 
 tain stations along the carrier's route, such a contract 
 cannot be implied where there is no custom to make 
 a personal delivery, and delivery elsewhere than at 
 such stations would be impracticable. This last con- 
 sideration applies to railroad companies. Unlike wag- 
 oners and expressmen, whose routes are easily varied 
 to accommodate the public, their line of movement 
 and points of termination are locally fixed. Their 
 cars are confined to certain tracks ; and without re- 
 sorting to another and distinct species of transporta- 
 tion, personal delivery is impossible in most cases. 
 Railroad companies are therefore required only to 
 deliver at their stations, in the absence of any agree- 
 ment which extends their obligation. 1 
 
 When the Liability op the Company as a Com- 
 mon Carrier is changed into that op Warehouse- 
 man. — A common carrier may be under different de- 
 grees of responsibility in relation to goods intrusted 
 to him for carriage, before he has entirely abandoned 
 the possession of them. First, during the transport- 
 ation, he is under his peculiar liability of common 
 carrier, as an insurer against all losses, except those 
 occasioned by the act of God or the public ene- 
 mies. Secondly, after the transportation is ended, 
 he may be the warehouseman or forwarder of the 
 goods, receiving compensation for his services as such, 
 either separate or included in the original charge for 
 
 1 Thomas v. Boston and Providence K. E. Co., 10 Met. 472. 
 
436 LIABILITY OP COMPANY 
 
 freight; in which relation he is responsible only for 
 losses occasioned by his want of such care as is 
 required of ordinary bailees for hire. His liability 
 as warehouseman supersedes that of common carrier, 
 when the goods have arrived and the consignee has 
 had a reasonable opportunity to take them away. 1 And 
 thirdly, when he ceases to hold the goods as a bailee 
 for hire, he is only answerable for such negligence as 
 affects a gratuitous bailee with liability. 2 The peculiar 
 usages and circumstances of railroad transportation 
 are important, in determining when a higher degree 
 of responsibility for the goods is superseded by a 
 lower. 
 
 The large quantities of merchandise which these 
 companies are obliged to transport, require that the 
 vehicles in which it is carried should be unladen as 
 soon, after its destination is reached, as can be safely 
 and conveniently done, so as not to pre-occupy their 
 tracks and cars to the interruption of other business. 
 The trains arriving, at different hours by night as 
 well as by day, it is alike convenient and necessary 
 both for the proprietors of the road and the owners 
 of the goods, that they should be unladen and de- 
 posited in a safe place, protected from the weather 
 and from exposure to thieves and other casualties. 
 To facilitate the clearing of the tracks and cars, and 
 
 ' Powell v. Myers, 26 Wend. 691 ; Goold v. Chapin, 10 Barb. 612; Clen- 
 daniel v. Tuckerman, IT id. 184 ; Young v. Small, 8 Dana, 91. 
 
 2 Gratuitous bailees are said to be liable for gross negligence, and 
 bailees for hire for ordinary negligence ; and although the responsibility of 
 these two classes of bailees is different, the terms "ordinary" and "gross,'* 
 used to distinguish the negligence which subjects each class to liability, are 
 now discredited. Steamboat New World v. King, 16 How. 469. 
 
AS COMMON CARRIER OF GOODS. 437 
 
 to protect the merchandise, the company is usually 
 provided at its stations with platforms, lying along 
 side or within its stMon-houses on which the 
 goods are deposited from the cars, and with ad- 
 jacent warehouses where if not immediately taken 
 away, they may be stored, — the goods of each con- 
 signment by themselves separated from the rest and 
 ready for delivery, — to remain a reasonable and con- 
 venient time without additional charge, until called 
 for by the consignee. The station-house, or warehouse, 
 is suitably inclosed and secured against the weather, 
 and properly guarded like other warehouses against 
 theft, or ordinary dangers. The company makes no 
 special charge for this temporary storage, but 
 receives its compensation in the general charge for 
 freight, and is therefore a bailee for hire. 1 Upon 
 this view of transportation by railroad, it has been 
 decided in Massachusetts that the implied contract 
 of the company is to carry the goods safely to the 
 place of destination, and there discharge them on the 
 platform, ready for delivery to the consignee ; and 
 upon their being thus unladen and disposed of, its 
 extraordinary liability as a common carrier is ended. 
 But if on account of their arrival at the station at an 
 unseasonable hour, when by usage or the course of 
 
 1 That a common carrier under the same contract, and compensated 
 in one entire charge, may be under distinct duties, for a breach of which he 
 will be liable to different degrees of responsibility, is well sustained by 
 authority. Garside v. Trent and Mersey Nav. Co., 4 Term. R. 581 ; Hyde 
 v. Same, 6 id. 389 ; In Re Webb, 8 Taunt. 443 ; Van Santvoord v. St. John, 
 6 Hill, 157; M'Henry v. Phil., Wil., and Bal. R. R. Co., 4 Harring. 448, 
 where it is held to be the duty of the company to store the goods on their 
 arrival, if the owner is not present to receive them. 
 
438 LIABILITY OF COMPANY 
 
 business delivery is not practicable, or if the consignee 
 is not there ready to receive them, it is the duty of 
 the company to store them'safely, under the charge 
 of competent servants, ready to be delivered, and 
 afterwards to deliver them when duly called for by 
 parties authorized to receive them ; and for the per- 
 formance of these duties, the company is liable only 
 as a warehouseman or bailee for hire^after the goods 
 have been unladen from the cars and placed on the 
 platform, although the owner has not had an oppor- 
 tunity to take them away. Thus, -where it was 
 proved, that four rolls of leather, the plaintiffs prop- 
 erty, were delivered to the Boston and Providence 
 Railroad Corporation at Providence, to be trans- 
 ported to Boston, where they arrived safe and were 
 deposited at its station-house ; that a teamster 
 employed by the plaintiff shortly after called at the 
 station with a bill of freight receipted by the company, 
 and inquired for the leather ; that it was pointed 
 out to him by the master of the station ; that he 
 then took, away two of the rolls, and on returning 
 soon after for the other two, could find only one 
 of them, — it was held, in view of the usages of 
 railroads, that where suitable warehouses are pro- 
 vided by the company, and the goods which are not 
 called for on their arrival at the place of destination, 
 are unladen and separated from the goods of other 
 persons and stored safely in such warehouses with- 
 out further compensation, the responsibility of the 
 company as a common carrier terminates, and after 
 that, it is responsible only as a depositary, without 
 further charge, and consequently, unless guilty of 
 
AS COMMON CAEEIEE OF GOODS. 439 
 
 negligence in the custody of the goods, it is not 
 liable to the owner for the loss. 1 
 
 This decision has been more recently affirmed in 
 the same State, where the following facts appeared : 
 Two consignments of goods belonging to the plaintiffs 
 were burned in the station-house of the Boston and 
 
 1 Thomas v. Boston and Prov. R. B. Corp., 10 Met. 41% Hubbard, J. : 
 " The transportation of goods and the storage of goods are contracts of 
 a different character; and though one person or company may render 
 both services, yet the two contracts are not to be confounded or blended ; 
 because the legal, liabilities attending the two are different. The 
 proprietors of a railroad transport merchandise over their road, receiving it 
 at one depot or place of deposit and delivering it at another, agreeably to 
 the direction of the owner or consignor. But from the very nature and 
 peculiar construction of the road, the proprietors cannot deliver merchandise 
 at the warehouse of the owner, when situated off the line of the road, as a 
 common wagoner can do. To make such a. delivery, a distinct species of 
 transportation would be required, and would be the subject of a distinct 
 contract They can deliver it only at the terminus of the road, or at the 
 given depot where goods can be safely unladed and put into a place of safety. 
 After such delivery at a depot, the carriage is completed. But, owing to 
 the great amount of goods transported and belonging to so many different 
 persons, and in consequence of the different hours of arrival, by night as 
 well as by day, it becomes equally convenient and necessary, both for the 
 proprietors of the road and the owners of the goods, that they should be 
 unladed and deposited in a safe place, protected from the weather and from 
 exposure to thieves and pilferers. And where such suitable warehouses are 
 provided, and the goods which are not called for on their arrival at the 
 places of destination, are unladed and separated from the goods of other 
 persons, and stored safely in such warehouses or depots, the duty of the 
 proprietors as common carriers is, in our judgment terminated. They have 
 done all they agreed to do ; they have received the ' goods, have trans- 
 ported them safely to the place of delivery, and, the consignee not being 
 present to receive them, have unladed them, and have put them in a safe 
 and proper place for the consignee to take them away ; and he can take them 
 at any reasonable time. The liability of common carriers being ended, the 
 proprietors are, by force of law, depositaries of the goods, and are bound to 
 reasonable diligence in the custody of them, and consequently are only 
 liable to the owners in case of a want of ordinary care." 
 
440 LIABILITY OF COMPANY 
 
 Maine Railroad Company at Boston,- which was 
 destroyed by fire on the night of Monday, the 
 4th November, 1850, one of which arrived on 
 the afternoon of the Saturday previous, and the 
 other on the afternoon of Monday. The first 
 consignment was ready for delivery on Monday 
 morning, having been discharged from the cars as 
 early as some time during the previous Saturday, 
 and the plaintiff's truckman, who was his agent for 
 that purpose, knew that it was so ready. The second 
 consignment was ready for delivery, having been 
 placed on the platform, on Monday evening before 
 five o'clock. The plaintiff's truckman, after having 
 waited for it from two to half-past three o'clock of the 
 same evening, not being informed when the last con- 
 signment would be ready for delivery, left the station ; 
 it being inconvenient for him to take the goods at a 
 later hour to the plaintiff's store, as the days were 
 then short, the stores closed about the time of sunset, 
 and it being necessary for him to receive them as 
 early as half-past three or four o'clock, in order to 
 carry them that evening where he was to deliver 
 them. The plaintiff had no notice of the arrival of 
 the goods except in the knowledge of the truckman. 
 The fire was not caused by lightning ; nor was it 
 attributable to any default or negligence of the 
 company. It was held in both cases, that the goods 
 having been unladen from the cars and placed in the 
 warehouse before the fire, the company ceased to 
 hold them as a common carrier, and was liable 
 only as a warehouseman, for want of ordinary care, 
 
AS COMMON CARRIER OF GOODS. 441 
 
 although the consignee might not have had an oppor- 
 tunity to take them away before the fire. 1 
 
 1 Norway Plains Co. v. Boston and Maine E. R. Co. 1 Gray, 263. 
 Shaw, C. J. : " The question then is, when and by what act the transit of 
 the goods terminated. It was contended, in the present case, that, in the 
 absence of express proof of contract or usage to the contrary, the carrier of 
 goods by land is bound to deliver them to the consignee, and that his obli- 
 gation as carrier does not cease till such delivery. 
 
 " This rule applies, and may very properly apply, to the case of goods 
 transported by wagons and Other vehicles, traversing the common highways 
 and streets, and which therefore can deliver the goods at the houses of the 
 respective consignees. But it cannot apply to railroads, whose line of 
 movement and point of termination are locally fixed. The nature of the 
 transportation, though on land, is much more like that by sea, in this 
 respect, that from the very nature of the case, the merchandise can only be 
 transported along one line, and delivered at its termination, or at some fixed 
 place by its side, at some intermediate point. The rule in regard to ships is 
 very exactly stated in the opinion of Buller, J., in Hyde v. Trent and Mersey 
 Navigation, 5 T. R. 397. ' A ship trading from one port to another has not 
 the means of carrying the goods on land ; and, according to the established 
 course of trade, a delivery on the usual wharf is such a delivery as will 
 discharge the carrier.' 
 
 " Another peculiarity of transportation by railroad is, that the car can- 
 not leave the track or line of rails on which it moves ; a freight train moves 
 with rapidity, and makes very frequent journeys, and a loaded car whilst it 
 Btands on the track, necessarily prevents other trains from passing or coming 
 to the same place ; of course, it is essential to the accommodation and con- 
 venience of all persons interested, that a loaded car, on its arrival at its des- 
 tination should be unloaded, and that all the goods carried on it to whom- 
 soever they may belong, or whatever may be their destination, shonld be 
 discharged as soon and as rapidly as it can be done with safety. The car 
 may then pass on to give place to others, to be discharged in like manner. 
 From the necessary condition of the business, and from the practice of these 
 transportation companies to have platforms on which to place goods from 
 the cars, in the first instance, and warehouse accommodation by which they 
 may be securely stored, the goods of each consignment by themselves in acces- 
 sible places ready to be delivered, the court are of opinion that the duty 
 assumed by the railroad corporation is — and this, being known to owners of 
 goods forwarded, must in the absence of proof to the contrary, be presumed 
 to be assented to by them, so as to constitute the implied contract between 
 them — that they will carry the goods safely to the place of destination, and 
 there discharge them on the platform, and then and there deliver them to 
 the consignee or party entitled to receive them, if he is there ready to take 
 
442 LIABILITY OF COMPANY 
 
 The company was held liable for other goods con- 
 sumed in the same fire, by reason of the negligence 
 of its servants, who, without using proper care to 
 inform themselves, represented to the consignee call- 
 ing for them, during the day before the night of the 
 
 them forthwith ; or, if the consignee is not there ready to take them, then 
 to place them securely and keep them safely a reasonable time, ready to be 
 delivered when called for. This, it appears to us, is the spirit and legal 
 effect of the public duty of the carriers, and of the contract between the 
 parties, when not altered or modified by special agreement, the effect and 
 operation of which need not here be considered. 
 
 " This we consider to be one entire contract for hire ; and, although 
 there is no separate charge for storage, yet the freight to be paid, fixed by 
 the company, as a compensation for the whole service, is paid as well for 
 the temporary storage, as for the carriage. This renders both the services, 
 as well the absolute undertaking for the carriage, as the contingent under- 
 taking for the storage, to be services undertaken to be done for hire and 
 reward. From this view of the duty and implied contract of the carriers 
 by railroad, we think there result two distinct liabilities ; first, that of com- 
 mon carriers, and afterwards, that of keepers for hire, or warehouse keepers ; 
 the obligations of which are regulated by law. 
 
 " We may then say, in the case of goods transported by railroad, either 
 that it is not the duty of the company as common carriers, to deliver the 
 goods to the consignee, which is more strictly conformable to the truth of 
 the facts ; or, in analogy to the old rule, that delivery is necessary, it may 
 be said that delivery by themselves as common carriers, to themselves as 
 keepers for hire, conformably to the agreement of both parties, is a delivery 
 which discharges their responsibility as common carriers. If they are 
 chargeable after the goods have been landed and stored, the liability is one 
 of a very different character, one which binds them only to stand to losses 
 occasioned by their fault or negligence. 
 
 ******* 
 
 " In applying these rules to the present case, it is manifest that the 
 defendants are not liable for the loss of the goods. Those which were for- 
 warded on Saturday arrived in the course of that day, lay there on Sunday 
 and Monday, and were destroyed in the night between Monday and Tuesday. 
 But the length of time makes no difference. The goods forwarded on Mon- 
 day were unladen from the cars, and placed in the depot, before the fire. 
 Several circumstances are stated in the case, as to the agent's calling for 
 them, waiting, and at last leaving the depot before they were ready. But 
 we consider them all immaterial. The argument strongly urged was that the 
 
AS COMMON CABEIEE OF GOODS. 443 
 
 fire, that they had been delivered; whereas they 
 were then in the station-house. 1 
 
 In New Hampshire, contrary to the doctrine laid 
 down in Massachusetts, where the liability of the 
 company for other goods lost in the same fire, which 
 had arrived at the freight-house on the afternoon of 
 the day of the fire, was in issue, it was held that its 
 liability continues after their arrival, and until the 
 consignee has had a reasonable opportunity to take 
 them away, and is not superseded by that of a ware- 
 house-man upon their being unladen and deposited 
 in the warehouse ; but this reasonable opportunity 
 is not to be measured by any circumstances peculiar 
 to the plaintiff, so as to extend it beyond that which 
 
 responsibility of common carriers remained until the agent of the consignee 
 had an opportunity to take them and remove them. But we think the rule 
 is otherwise. It is stated, aB a circumstance, that the train arrived that day 
 at a later hour than usual. This we think immaterial; the corporation do 
 not stipulate that the goods shall arrive at any particular time. Further, 
 from the very necessity of the ease, and the exigencies of the.railroad, the 
 corporation must often avail themselves of the night, when the road is less 
 occupied for passenger cars, so that goods may arrive and be unladen at an 
 unsuitable hour in the night, to have the depot open for the delivery of the 
 goods. We think, therefore, that it would be alike contrary to the contract 
 of the parties, and the nature of the carriers' duty, to hold that they shall 
 be responsible as common carriers, until the owner has practically an 
 opportunity to come with his wagon and take the goods ; and it would 
 greatly mar the simplicity and efficacy of the rule, that delivery from the 
 cars into the depot terminates the transit. If, therefore, for any cause the 
 consignee ia not at the place to receive his goods from the car as unladen, 
 and in consequence of this they are placed in the depot, the transit ceases. 
 In point of fact, th e agent might have received the second parcel of goods 
 in the course of the afternoon on Monday, but not early enough to be car- 
 ried to the warehouses, at which he was to deliver them ; that is, not early 
 enough to suit his convenience. But, for the reasons stated, we have thought 
 this circumstance immaterial, and do not place our decision for the defendants, 
 in regard to this second parcel, on that ground." 
 1 Stevens v. Boston and Maine R E., 1 Gray, 211. 
 
444 LIABILITY OF COMPANY 
 
 would be sufficient in the case of persons residing in . 
 the vicinity of the warehouse, prepared with the 
 means of taking the goods away, and informed of 
 the usages of the company. 1 
 
 1 Moses v. Boston and Maine R. R, 32 N. H. 623, 540. Sawyer, J. : "For 
 all purposes which have reference to the difficulties and embarrassments in 
 the way of the owner in attempting to prove loss or damage by the fault 
 or neglect of the company, to his inability to give to them any oversight or 
 protection, and to his security against fraud and collusion until he can have 
 reasonable opportunity to see, by his own observation, or that of others 
 than the servants of the company, that they have arrived, and to send for 
 and take them away, he stands in the same relation to them as when they 
 were actually in the course of transportation. The same broad principles of 
 public policy and convenience upon which the common-law liability of the 
 carrier is made to rest, have equal application after the goods are removed 
 into the warehouse as before, until the owner or consignee can have that 
 opportunity ; and the same necessity exists for encouraging the fidelity and 
 stimulating the care and diligence of those who thus continue to retain them 
 in charge, by holding that they shall continue subject to the risk. 
 
 "It is no satisfactory answer to this view to say that the company, having 
 provided a warehouse in which to store the goods for the accommodation of 
 the owner, after the transit has terminated, may be regarded, by their act 
 of depositing them in the warehouse, as having delivered them from them- 
 selves as carriers, to themselves as warehousemen. The question still is, 
 when, having a proper regard to the principles which lie at the basis of 
 their carrier liability, and to the protection and security of the owner, can 
 this transmutation of the character in which they hold the goods be said to 
 take place, and this constructive delivery to be made. If this is held to be 
 at any point of time before there can be opportunity to take them from the 
 hands of the company, then may the owner be compelled to leave them in 
 their possession under the limited liability of depositaries, or bailees for 
 hire, contrary to his intention, and without any act or neglect on his part 
 which may be considered as indicative of his consent thereto. It may have 
 been his intention to take them from their possession at the earliest practi- 
 cable moment, for the reason that he may not be disposed to entrust them 
 to their fidelity and care without the stimulus to the utmost diligence and 
 good faith afforded by the strict liability of carriers. If he neglects to take 
 them away upon the first opportunity that he has to do it, he may be said 
 thereby to have consented that they shall remain under the more limited 
 responsibility. But upon no just ground can this consent be presumed 
 when his only alternative is to be at the station where they are to be de- 
 
AS COMMON CAEEIEE OF GOODS. 445 
 
 In Michigan it has been decided that the 
 company, in lieu of personal delivery, is bound at 
 common law to give notice to the consignee of the 
 
 livered at the arrival of the train, at whatever hour that may happen to be, 
 whether in the night or the day, in or out of business hours, and regardless 
 of all the contingencies upon which the regularity of its arrival may 
 depend. It is to be snpposed that the consignee has been advised by the 
 consignor of the fact that the goods have been forwarded, and that he haB 
 taken or is prepared to take proper measures to look for them upon their 
 arrival, and to remove them as soon as he can have reasonable opportunity 
 to do so. It must be supposed, too, that he iB informed of the usual course 
 of business on the part of the company, and of their agents, in the hours 
 established for the arrival of the trains, and in unlading the ears and deliv- 
 ering out goods of that description, and that he will exercise reasonable 
 diligence in reference to all these particulars, to be at the place of delivery 
 as soon as may be practicable after their arrival, and take them into his 
 possession. The extent of the reasonable opportunity to be afforded him 
 for that purpose is not, however, to be measured by any peculiar circum- 
 stances in his own condition and Bituation, rendering it necessary for his 
 own convenience and accommodation that he should have longer time or 
 better opportunity than if he resided in the vicinity of the warehouse, and 
 was prepared with the means and facilities for taking the goods away. If 
 his particular circumstances require a more extended opportunity, the goods 
 must be considered after such reasonable time as but for those peculiar cir- 
 cumstances would be deemed sufficient to be kept by the company for his 
 convenience, and under the responsibility of depositaries or bailees for 
 
 hire only. 
 
 ******* 
 
 " We are aware that this view of the liability of railroad companies as car- 
 riers conflicts with the opinion of the Supreme Court of Massachusetts, as pro- 
 nounced by the learned chief justice of that court in the recent case of Norway 
 Plains Co. v. these defendants, 1 Gray, 263. In that case it was held that 
 the liability as carriers ceases when the goods are removed from the cars 
 and placed upon the platform of the depot, ready for delivery, whether it 
 be done in the day-time or in the night — in or out of the usual business 
 hours and consequently irrespective of the question whether the con- 
 signee has or not an opportunity to remove them. The ground upon which 
 the decision is based would seem to be the propriety of establishing a rule 
 of duty for this class of carriers of a plain, precise, and practical character, 
 and of easy application, rather than of adhering to the rigorous principles 
 of the common law. That the rule adopted in that case is of such character 
 is not to be doubted; but with all our respect for the eminent judge by 
 
446 LIABILITY OF COMPANY 
 
 arrival of the goods ; and until such notice has been 
 given, and the consignee has had a reasonable time 
 to remove them, it is liable as a common carrier, 
 although the goods have been unladen and depos- 
 ited in its warehouse. 1 
 
 It has been held in Illinois that the liability of 
 the company is not changed into that of warehouse- 
 man, until some open act of delivery, proving the 
 change of relation, which must be shown by the 
 company. And if in the course of the trans- 
 portation, the company stores the goods at the- 
 station in the same car in which they have been 
 transported, its liability as common carrier will not 
 terminate until the car has been separated from the 
 train and placed in a proper, or its usual, place of 
 storage, and put in the charge of the proper per- 
 son. 2 
 
 Liability of the Company in the unlading of 
 the Goods. — The company's liability continues while 
 the goods are being unladen from the cars, unless 
 the owner has already taken possession of them. 3 
 It invariably terminates when they have passed 
 into the possession of the consignee ; but merely 
 
 whom the opinion was delivered, and for the learned court whose judgment 
 he pronounced, we cannot but think that by it the salutary and approved 
 principles of the common law are sacrificed to considerations of convenience 
 and expediency, in the simplicity and precise and practical character of the 
 rule which it establishes." 
 
 1 Michigan Central E. R. Co. v. Ward, 2 Mich. (Gibbs) 538. See Home 
 R. R. Co. v. Sullivan, 14 Geo. 277. 
 
 * Chicago and Rock Island R. R. Co. v. Warren, 16 I1L 502. 
 
 8 De Mott v. Laraway, 14 Wend. 225. 
 
AS COMMON CAREIEE OF GOODS. 447 
 
 giving directions as to his goods when they are in 
 danger of loss, does not necessarily constitute accept- 
 ance. 1 If, after the arrival of the goods at their 
 destination, he should, at his own request, receive 
 them in the cars, or otherwise assume the control 
 of them before they were unladen at the station- 
 house, the company would be discharged. 2 
 
 ' Bowman v. Teall, 23 Wend, 806.; Story on Bail. .§ 641. 
 
 a Lewis v. Western R. R. Corp. 11 Met. 509. The Western Railroad Corpo- 
 ration was sued for damage to a block of marble, which it had carried from 
 Pittsfield to Worcester. It appeared, that on its arrival at Worcester one Lamb, 
 a truckman employed by the plaintiff, went to the depot of another company, 
 the Boston and Worcester Railroad Company, with bis truck, to receive and 
 transport the block to the plaintiff; and that one M'Coy, who was employed 
 by the defendants, and whose business it was to deliver and receive freight, 
 assisted by said Lamb and his truck-horse, drew the car on which the block 
 had been transported by the defendants, from their depot to the junction of 
 the two railroads, and shifted the switch, and drew the block to the depot 
 of the Boston and Worcester Railroad Corporation, and proceeded to 
 remove the block from the ear to the truck, by the aid of the derrick and 
 machinery of that corporation, the use of which for that purpose he had 
 obtained ; and, while attempting to do this, the hook which fastened the 
 chain of the derrick around the block gave way, and the block fell and was 
 broken. The court were of opinion that the jury should have been in- 
 structed as follows : — 
 
 " 1st. That if Lamb was authorized and employed by the plaintiff to 
 take and receive the delivery of the block, which, being of unusual size and 
 weight required peculiar care and attention to deliver ; and if he was the 
 authorized agent of the plaintiff to do all acts incident to the delivery and 
 transportation of the block ; and if Lamb, instead of receiving the block at 
 the depot of the defendants, requested their agent for delivery to permit the 
 car containing the block to be hauled to the Boston and Worcester Railroad 
 derrick, and if Lamb requested the use of that derrick, for the purpose of re- 
 moving the block from the car to his truck ; then these acts, being incident to 
 the delivery of the block, were acts within the authority conferred on Lamb 
 by the plaintiff, and bind him in the same manner as if done by himself. 
 2d. That if Lamb requested M'Coy to deliver the block, or consent to the 
 delivery thereof, in this mode, instead of delivering the same at the defend- 
 ants' depot, and with the means there provided, then, from the time the car 
 left the defendants' depot and premises, and went to the derrick of the Boston 
 
448 LIABILITY OP COMPANY 
 
 The company is responsible for the luggage of 
 passengers until it is delivered in the ordinary man- 
 ner, unless some other mode is accepted by them 
 as sufficient delivery. Thus, it is held in England, 
 that where a railway company employs porters at 
 its stations to convey the luggage of passengers 
 from the cars to their carriages or hired vehicles, 
 its liability continues until the porters have dis- 
 charged their duty, even for luggage which, while 
 the train was moving, was in the car with the pas- 
 senger. 1 
 
 Termination of the Liability op the Company 
 ,'as "Warehouseman or Depositary. — The liability 
 of the company, as already shown, does not term- 
 inate with the arrival of the goods. If the consignee 
 is not present to receive them, it is bound to have 
 them stored. 2 But after the consignee has had a 
 reasonable opportunity to take them away, there 
 being no agreement express or implied between the 
 parties that the company is to be paid for storage, 
 
 and Worcester Railroad, the defendants ceased to be liable either for the care 
 and skill of the persons employed, or for the strength and sufficiency of the 
 machinery employed for the purpose ; and that the persons employed must be 
 regarded as the agents of the plaintiff. 3d. That the general duty of the defend- 
 ants as common carriers, was to make a true delivery of goods at the usual 
 place, which, in thiB case was at their own depot at Worcester ; but that it was 
 competent for the plaintiff to assent to a delivery elsewhere ; that if the 
 plaintiff desired such a special delivery, to which the agents of the defend- 
 ants assented, then, from and after the time that the block had gone from 
 the regular place of delivery, with respect to such special delivery the 
 block might be regarded as constructively delivered, so that the defendants 
 were exempted from the duty of making any other or different delivery." 
 
 1 Richards v. London, <fcc, R. Co., 1 C. B., 839 ; 62 E. C.,L.; Butcher v. 
 London and S. W. R. Co., 16 C. B. 13 ; 81 E. C. L. ; 29 Eng. L. andEq. 347. 
 
 a M'Henry v. Phil, Wil., and Bait. R. R. Co., 4 Harring. 448. 
 
AS COMMON CARRIER OF GOODS. 449 
 
 it becomes liable only as a gratuitous bailee. After ^ 
 its original undertaking has been performed, it may 
 relieve itself of all liability for the goods by tender- 
 ing them to the consignee, at the same time refusing 
 to retain further charge of them, and removing them 
 from its premises to a suitable place with no unne- 
 cessary damage. But notwithstanding its tender 
 and refusal to retain further charge of the goods, if ; 
 it still retains them in its custody, it is competent 
 for the jury to infer its waiver of the refusal, and ; 
 consent to continue the depositary of the goods. 1 
 
 If the consignee is absent, deceased, or refuses to 
 receive the goods, or cannot be found, the common 
 carrier may discharge himself from further liability 
 by* depositing them with some responsible ware- 
 houseman, who thenceforward becomes the bailee of 
 the owner, and for whose subsequent insolvency, 
 resulting in the loss of the goods, the carrier is not 
 responsible. 2 
 
 ^ Notice to the Consignee. — Whether it is the 
 duty of the company to give notice of the arrival of 
 the goods to the consignee, is an unsettled question. 
 Generally, this duty is required of carriers who are 
 exempted from the obligation of personal delivery ; 
 but it may be dispensed with by a well-known and 
 established usage, although, it seems, the knowledge 
 of the usage is not brought home to the consignee. 8 
 
 1 Smith v. Nashua and Lowell R. R., 1 Foster, 86 ; ante, p. 436. 
 
 2 Fisk v. Newton, 1 Denio, 45. 
 
 * Gibson v. Culver, 17 Wend. 305 ; Farmers and Mechanics' Bank v. 
 Champlain Transportation Co. 16 Verm. 52; 18 id. 131 ; 23 id. 186. 
 
 30 
 
450 LIABILITY OF COMPANY 
 
 Nor would it seem to be required, where, by the 
 receipt given by the company, the goods are deliv- 
 erable to the order of the consignor who already 
 has knowledge of the sending of the goods, or where 
 the name of no consignee is included, the goods being 
 identified by a comparison of the marks and numbers 
 with the way-bill. 1 In other cases, it remains to be 
 seen whether notice left at the residence or place of 
 business of the consignee, or deposited in the mail 
 directed to him, will be considered as required by 
 public policy. The usage of the company which 
 carries the goods, or of companies generally in the 
 same locality, may be taken into view in determining 
 whether the duty of giving notice to the consignee is 
 implied in the contract of transportation. The course 
 of business of railroad companies is such, — the arri- 
 vals of goods being so frequent and various, the time 
 occupied in transportation being more determinate 
 than in the case of carriers by water, the custom pre- 
 vailing of the consignor to forward to the consignee 
 a receipt in the nature of a bill of lading, notifying 
 him of the consignment, and enabling him to calcu- 
 late with reasonable certainty on the time of the 
 arrival, and the company being provided with suit- 
 able warehouses, — that it may be considered by the 
 courts that its duty to give notice to the consignee 
 does not arise as a conclusion of law from the con- 
 tract to carry. 2 
 
 1 Norway Plains Co. v. Boston and Maine R. E. 1 Gray, 215. 
 * Such a notice is required by statute in Ohio. Laws of Ohio (1856), 
 p. 98. 
 
AS COMMON CABEIEE OF GOODS. 451 
 
 In Vermont and Massachusetts, it does not seem to 
 be the duty of the company to give such a notice, 
 although the point is not directly decided. 1 In 
 Michigan it is required ; and the liability of the com- 
 pany, as a common carrier, continues until it is given. 2 
 Actual notice is required in Georgia, unless dispensed 
 with by usage. 8 
 
 Liability of the Company eok goods consigned 
 to places beyond its teeminus. — The liability of a 
 railroad company for goods which have passed over 
 its line, and been delivered according to usage to 
 another carrier on their way to the place of destina- 
 tion, and lost while in the possession of such carrier, 
 has recently been the subject of much judicial discus- 
 sion in England and the United States. An indivi- 
 dual carrier unquestionably has the power to con- 
 tract for such a liability ; and if his contract to that 
 effect is proved, he is bound by it. He may incur 
 liability beyond his route by an express contract, 4 
 or by entering into such an agreement with the 
 other carrier beyond his route as to create in law a 
 partnership between them, so far as third parties 
 are concerned. 5 But carriers may form a continu- 
 
 1 Farmers and Mechanics' Bank v. Champlain Trans. Co. 23 Vt. 186, 211 ; 
 18 id. 131 ; 16 id. 62. Norway Plains Co. v. Boston andMaineE. E. 1 Gray, 
 274 ; see Moses v. Boston and Maine E. E. 32 N. H. 539, 541 ; Parsons on 
 Mere. Law, p. 210. 
 
 * Michigan R. E. Co. ■«. Ward, 2 Mich. (Gibbs.) 538. 
 8 Rome R. E. Co. v. Sullivan, 14 Geo. 277. 
 
 4 Wilcox v. Parmelee, 3 Sand. 610. 
 
 • Waland v. Elkins, 1 Starkie, 272 ; Fairchild v. Slocum, 19 Wend. 329 ; 
 S. C. 7 Hill, 292. , 
 
452 LIABILITY OF COMPANY 
 
 ous line for the transportation of freight and passen- 
 gers without a partnership being created between 
 them. 1 
 
 A railroad company is subject to other considera- 
 tions. Like all corporations, it is the creature of 
 positive law, and is authorized to exercise only such 
 powers as are specifically conferred upon it, and such 
 as are incidental or ancillary to its existence. 2 It 
 cannot properly enter into contracts not necessary, 
 directly or indirectly, to answer the purposes -of its 
 incorporation. 3 The charter of a railroad company 
 usually empowers it to construct a railroad between 
 certain termini, and to execute the powers granted, 
 for the transportation over the same of persons and 
 merchandise. It could hardly be maintained that 
 a company authorized to construct and operate a 
 railroad, as a common carrier between Chicago and 
 Detroit, is thereby authorized to contract for the 
 transportation of persons and merchandise from 
 Chicago to Cleveland, and thence to New York, 
 San Franscisco, or remoter destinations ; and if its 
 authority to undertake the transportation beyond its 
 terminus is admitted to any extent, it is not easy to 
 define its limits. If it is not authorized to make such 
 contracts, its liability upon them cannot well be 
 maintained, except on the ground that it is estopped 
 from setting up its inability to enter into contracts 
 
 1 Bright v. Vanderbilt, 19 Barb. 222 ; Straiton v. N. Y. and K H. E. E. 
 Co. 2 E. D. Smith, 184. 
 
 2 Ante, ch. ii. 
 
 3 Ante, ch. xvi. p. 395. 
 
AS COMMON CARRIER OF GOODS. 453 
 
 which, it has made; and the doctrine of estoppel 
 has been held not to apply to such a defence. 1 
 
 The Supreme Court of Connecticut seems inclined 
 upon such considerations to hold the company in- 
 competent to contract for the transportation of goods 
 beyond the terminus of its route. 2 But in Vermont 
 a railroad company is held to have the power to 
 make valid contracts both to receive freight at and 
 to convey it beyond the limits of its road, on the 
 ground that, if the corporators acquiesce in the ex- 
 tension of the business of the company, even beyond 
 the strict limits of the charter upon the most literal, 
 interpretation, and strangers are thereby induced to 
 contract upon the faith of the authority of its 
 agents, it is not at liberty to repudiate their au- 
 thority when their transactions prove disastrous. 3 
 In other jurisdictions, the power of the company to 
 make such contracts does not seem to have been 
 directly contested. 4 
 
 Where the existence of the power in a company 
 to undertake the transportation of goods beyond its 
 line is admitted, it is an important question from 
 what circumstances the contract may be implied. 
 Goods are often received by railroad companies, 
 
 1 Ante, eh. xvi. p. 395. 
 
 2 Hood v. N. Y. and N. H. R. R. Co., 22 Conn. 1, 602 ; Elmore v. Naugatuck 
 R. R. Co., 23 id. 457 ; Naugatuck R. R. Co. i>. Waterbury Button Co., 24 
 id. 468. 
 
 3 Noyes v. Rut. and Bur. R. R. Co., 27 Vt. 110. 
 
 ' In Illinois, the power to make contracts for the transportation of mer- 
 chandise and passengers on each others' roads, is conferred by statute on 
 companies incorporated by the laws of that State. — Laws of Illinois (1853), 
 p. 222. 
 
454 LIABILITY OF COMPANY 
 
 marked or consigned to some place beyond their 
 line, and a receipt given for them, described as hav- 
 ing such a destination. The acceptance of them, 
 marked, consigned, and receipted for, in this manner, 
 may be construed to be a contract to carry them 
 safely to the terminus of the company's road, and 
 there to deliver them, in the course of business, to 
 some other carrier to be transported to their desti- 
 nation. Such a contract is recognized by the com- 
 mon law, and subjects the company to the liability 
 of a common carrier until the goods have reached 
 .the point where they leave its road, and then to 
 that of forwarder for storage and delivery to the 
 next carrier. 1 
 
 According to the decisions in the United States, 
 the acceptance of goods by a common carrier, marked 
 or consigned to a point beyond the terminus of his 
 route, and the giving of a receipt for the same as so 
 marked and consigned, does not imply a contract on 
 his part to act as common carrier beyond his line, 
 where his usage is to transport over his own line and 
 then deliver to another carrier, whether such usage is 
 known to the owner or not. Thus, where the proprie- 
 tors of a line of tow-boats between New York and Al- 
 bany received a box at New York marked for a place 
 on the Erie Canal beyond Albany, giving a receipt for 
 a box so marked, and, not having any special direc- 
 tions from the owner as to the place or mode of de- 
 livery, delivered the goods safely at Albany, accord- 
 
 ' Garside v. Trent and Mersey Nav. Co., 4 Term R. 681 ; Ackley v. 
 Kellogg, 8 Cowen, 223 ; Maybin v. S. C. R. R. Co., 8 Rich. 240. 
 
AS COMMON CARRIER OF GOODS. 455 
 
 ing to their custom, on board of a canal boat belong- 
 ing to responsible parties, from whom they collected 
 the freight from New York to Albany, but with 
 whom they had no community of interest in the 
 profits of transportation,-^^ was held that the pro- 
 prietors, by giving the receipt, had made no contract 
 to deliver at the ultimate destination, and were not 
 liable for a loss on the canal boat, whether their 
 usage was known to the owner or not. 1 
 
 So in Massachusetts, where the Connecticut River 
 Railroad Company, whose southern terminus is at 
 Springfield, received boxes at Northampton, for 
 which it gave a receipt signed by its agent as follows, 
 "Received of E. N, for transportation to New York, 
 nine boxes planes, marked R. & F., 21 Piatt Street, 
 New York; four boxes planes and handles, marked 
 G. T. H. 146 Bowery Street New York ; " and it was 
 the practice of that company, to deliver goods con- 
 signed to New York, to the New Haven, Hartford and 
 Springfield Railroad Company at Springfield, where 
 they were sometimes carried through without change 
 of cars, and at other times shifted into the cars of the 
 last-named company ; and to take pay only as far as 
 
 1 St. John v. Van Santvoord, 6 Hill, 157 ; overruling S. C, 25 Wend. 
 660 ; Wright i>. Boughton, 22 Barb. 561 ; Straiton v. N. Y. & N. H. R. R. 
 Co., 2 E. D. Smith, 184. See Wibert is. N. T. & Erie R. R. Co., 2 Kernan, 
 2S5. There are decisions in New York not easily reconciled with these 
 authorities. See Weud v. Saratoga and Schenectady R. R. Co., 19 Wend. 
 534 ; Hart v. Rensselaer and Saratoga R. R. Co., 4 Selden, 37. In South 
 Carolina where two companies contract jointly for the transportation of 
 goods, one is liable for injury received by them on the line of the other. 
 Bradford v. S. C. R. R. Co., 1 Rich. 201. 
 
456 LIABILITY OF COMPANY 
 
 Springfield, — it was hel dby the Supreme Court that 
 the Connecticut River Railroad Company was not 
 liable for a loss which took place between Springfield 
 and New Haven ; that the receipt was not a special 
 contract to carry goods to New York ; and that the 
 company, having no connection in business with any 
 other company, and taking pay only to the end of 
 its road, when receiving goods marked with the 
 name of the consignee in New York was bound to 
 carry them safely to the end of its road, and there 
 deliver them to the proper carriers to be forwarded 
 towards their ultimate destination ; and then its 
 liability ceases. 1 So in Connecticut, where the pas- 
 senger paid at the station of a company for a 
 through ticket to a town situated several miles from 
 another station, reached therefrom by stage coach, 
 
 1 Nutting v. Conn. River R. R. Co., 1 Gray, 502-504. Metcalf, J. : " On 
 the facts of this case, we are of opinion that there must be judgment for the 
 defendants. Springfield is the southern terminus of their road ; and no con- 
 nection in business is shown between them and any other railroad company. 
 When they carry goods that are destined beyond that terminus, they take 
 pay only for the transportation over their own road. What, then, is the 
 obligation imposed on them by law, in the absence of any special contract 
 by them, when they receive goods at their depot in Northampton, which 
 are marked with the names of consignees in the city of New York ? In our 
 judgment, that obligation is nothing more than to transport the goods safely 
 to the end of their road, and there deliver them to the proper carriers, to be 
 forwarded towards their ultimate destination. This the defendants did, in 
 the present case, and in so doing performed their full legal duty. If they 
 can be held liable for a loss that happens on any railroad besides their own, 
 we know not what is the limit of their liability. If they are liable in this 
 case, we do not see why they would not also be liable, if the boxes had been 
 marked for consignees in Chicago, and had been lost between that place and 
 Detroit, on a- road with which they had no more connection than they 
 have with any railway in Europe.'' The same view prevails in Vermont. 
 Farmers and Mechanics' Bank v. Champlain Trans. Co., 16 Vt. 52; 18 id. 
 131 ; 23 id. 209. 
 
AS COMMON CARRIER OP GOODS. 457 
 
 the ticket including both railroad and stage fare, 
 and the company not participating in the profits of 
 the stage-coach or exercising any control over it, — 
 the ticket was held to be only a receipt for the entire 
 fare, which it was convenient to collect at the start- 
 ' ing point, and not a contract to carry safely beyond 
 the station, where the passenger took the stage- 
 coach, so as to make the company liable for an injury 
 received by him while riding on it. 1 More recently, 
 where goods were received by a company, marked 
 for a place beyond its terminus, and a receipt given 
 by it for the transportation of the goods so con- 
 signed, and an advertisement had been published 
 by its order that freight would be way-billed for 
 such place, and taken through with dispatch to such 
 destination, — the acceptance of the goods so marked 
 and consigned, and the receipt and advertisement, 
 were held not to be prima facie evidence of a con- 
 tract to carry to such place, but simply of a contract 
 to carry them to its terminus, and then forward by 
 the usual conveyance. 2 
 
 The English decisions are at variance with the 
 prevailing doctrine in this country. They sustain 
 the doctrine that when a railway company takes 
 into its care a parcel directed to a particular place, 
 and does not by positive agreement limit its respon- 
 sibility to a part only of the distance, that is prima 
 facie evidence of an undertaking to carry the parcel 
 to the place to which it is directed, although that 
 
 1 Hood v. H V. and N. H. R. R. Co., 22 Conn. 1, 502. 
 
 2 Elmore v. Naugatuck R. R. Co., 28 Conn. 457 ; Naugatuck R. R. Co. v. 
 Waterbury Button Co., 24 id. 468 ; see Jenneson v. Camden and Amboy R. 
 R. Co. ; Am. Law Reg. (Feb. 1856), p. 234. 
 
458 LIABILITY OF COMPANY 
 
 place be beyond the limits within which the com- 
 pany in general professes to carry on its business as 
 a carrier. The companies, though separate in them- 
 selves are regarded as partners in contracts to con- 
 vey over the whole distance, or the second as the 
 agent of the first. The point does not appear to- 
 have been pressed, that this presumption is overcome 
 by proof that the company receiving the goods 
 had no interest in the business of the other or con- 
 trol over it, and according to its usage delivered the 
 goods at its terminus to the other. 1 The English 
 cases apply the same rule when the destination of 
 the goods is beyond the realm. 2 But if the company 
 stipulates specially against liability beyond its ter- 
 minus, the agreement overcomes the presumption, 
 and it is not liable beyond its line. 3 Whether 
 the company receiving the goods is liable for losses 
 beyond its terminus or not, the company on whose 
 line the loss occurs would be liable. 4 
 
 Duty to deliver to the proper person. — The 
 company is bound to deliver to the right person, or 
 to the one to whom it has agreed to deliver, and is 
 liable for an innocent misdelivery, as upon a forged 
 order of the consignee. 5 If goods are delivered to 
 
 1 Muschamp v. L. and P. Junction R. Co., 8 M. & W. 421 ; Watson v. Am- 
 bergate, &e. R. Co., 3 Eng. L. and Eq. 497 ; Scotthorn v. South Strafford- 
 Bhire R. Co., 18 id. 553; Collins v. Bristol and Exeter R. Co., 36 id. 482. 
 
 2 Crouch n. N. W. R. Co., 25 id. 287. 
 
 " Fowles v. Great Western R. Co., 16 id. 531. 
 
 * Schopman v. Boston and Worcester R. R. Co., 9 Cush. 24. 
 
 6 Powell v. Myers, 26 Wend. 591 ; Rome R. R. Co. v. Sullivan, 14 Geo. 
 283; Angell on Carriers, §§ 321, 324,325,326; Sanquer v. London and 
 Southwestern R. Co., 32 Eng. L. and Eq. 338. 
 
AS COMMON CARBIER OP GOODS. 459 
 
 the company with no special directions, consigned to 
 the care of'a certain person, delivery to such person 
 discharges the company, although he may be one of 
 its agents. 1 
 
 Acceptance op the goods by the owner befoee 
 beaching theie destination. — The company may 
 be discharged from responsibility, except for damage 
 already sustained, and entitled to compensation, by 
 a voluntary acceptance of the goods by the owner 
 before they reach their destination. 2 The accept- 
 ance by the owner of the goods at an intermediate 
 point, does not deprive the company of its right to 
 the full freight originally agreed upon, unless it is 
 waived. 8 But if the owner receives only a part 
 while they are in transitu, the company is not 
 discharged from responsibility as to the rest. 4 The 
 owner, it has been held, has a right to demand back 
 his goods at an intermediate point of the transit, on 
 payment of the freight ; and the company is bound 
 to deliver them, unless compliance with his demand 
 would produce great inconvenience to it. 5 
 
 Lien op the Company. — A railroad company is 
 entitled as a common carrier to a lien on the goods 
 for the freight, and the advanced charges which it has 
 
 1 Bristol v. Rensselaer and Saratoga R. R. Co., 9 Barb. 158. 
 
 3 Parsons v. Hardy, 14 Wend. 215 ; Smyth v. Wright, 15 Barb. 51 ; Har- 
 ris v. Rand, 4 N. H. 259, 555 ; Hunt v. Haskell, 24 Maine, 339 ; Rossiter v. 
 Chester, 1 Douglass (Mieh.) 164. 
 
 s Ellis v. Willard, 5 Selden, 629. 
 
 4 Lowe v. Moss., 12 111. 411. 
 
 8 Scotthorn v. South Staffordshire R. Co., 18 Eng. L. and Eq. 553. 
 
460 LIABILITY OF COMPANY 
 
 paid in the ordinary course of business. 1 This is a 
 particular lien, and covers only the goods on which 
 the charges were incurred. In the absence of a dis- 
 tinct usage or agreement, the carrier has no general 
 lien by which he can retain a consignment as security 
 for a balance due from the consignee on account of 
 other consignments. 2 He has a lien on a passenger's 
 luggage for his fare, but not on his person, or clothes 
 on his person. 8 If by an agreement the carrier is 
 not to receive pay on delivery of the goods, he waives 
 his lien. 4 The possession of the carrier must be 
 rightful, in order to entitle him to a lien. No man 
 can be divested of his property without his consent, 
 however much the assertion of his right may injure 
 innocent parties. A thief, or trespasser, or a bailee 
 for a special purpose who has transcended that pur- 
 pose, can confer no rights to his property. Accord- 
 ingly, where without the consent of the owner, 
 express or implied, the carrier innocently receives 
 the goods from a person who has stolen them, or is 
 not authorized to send them by his line, he has no 
 lien on them for freight against the owner, and on 
 his refusal to deliver them to him is liable, without 
 any tender of the freight, to an action of replevin 
 for their recovery, or trover for their value. 5 Pos- 
 
 1 Bowman v. Hilton, 11 Ohio, 803; Langworthy v. N". H. and Harlem E. 
 E. Co., 2 E. D. Smith, 195. 
 
 3 Eushforth v. Hadfield, 6 East, E19; Lucas v. Nockelk, 4 Bing. 729; 
 Hartshore v. Johnson, 2 Halsted, 108. 
 
 3 Wolf v. Summers, 2 Camp. 631 ; Story on Bailments, § 604 ; Sunbolf v. 
 Alford, 3 M. & W. 248. 
 
 4 Crawshay v. Homfray, 4 B. & Aid. 50. 
 
 6 Pitch v. Newberry, 1 Doug. (Mich.) 1 ; Eobinson v. Baker, 5 Cush. 187. 
 
AS COMMON CARRIER OP GOODS. 461 
 
 session is necessary to constitute a lien, and when 
 the carrier parts with it, the lien is terminated. 1 But 
 delivery to the consignee of a part of a particular 
 consignment of merchandise does not affect his lien 
 on the remaining part of the same consignment for 
 the entire freight, unless the delivery of a part was 
 intended as a delivery of the whole. And a delivery 
 to a warehouseman for storage, and as agent of the 
 carrier to hold the same for the unpaid freight, is 
 not an abandonment of his lien. 2 The carrier can- 
 not be dispossessed of his lien by .the fraud of the 
 owner, as by a delivery procured by his false and 
 fraudulent promise to pay the freight as soon as the 
 goods were received ; and the carrier may obtain 
 possession of the goods again, by a writ of replevin. 3 
 Nor is the carrier's lien dissolved by a delivery to 
 the owner for a special and temporary purpose. 4 
 
 Compensation. — A railroad company, in the ab- 
 sence of any regulations in its charter, may fix its 
 own rates. But having fixed its rates, it is bound 
 to carry for all alike without respect of persons. It 
 may demand pay in advance, and refuse to carry 
 unless this requirement is complied with. 6 "Where 
 no prepayment is made or freight fixed before- 
 hand, it may recover its usual compensation. If it 
 
 1 M'Farland v. Wheeler, 26 Wend. 473. 
 
 2 Boggsi;. Martin, 13 B. Monroe, 244; M'Farland v. Wheeler, 26 Wend. 
 473. 
 
 3 Bigelow v. Heaton, 6 Hill, 43 ; S. C, 4 Denio, 496. 
 
 4 Hays v. Riddle, 1 Sandford, 248. 
 
 s Pickford v. Grand Junction K. Co., 8 M. <fe W. 372; 10 id. 399. 
 
462 LIABILITY OF COMPAHT 
 
 has taken possession of the goods, and the owner 
 wishes them back again, it is entitled to remunera- 
 tion for its trouble, and is not obliged to restore 
 them until it is paid. 1 It has a special property in 
 the goods, and may maintain an action for disturb- 
 ance of its possession and for injuries to them. 2 If it 
 exacts a larger compensation than it is entitled to 
 by its agreement with the owner, who pays the same 
 under protest, he may recover it back. 8 It cannot 
 of its own mere motion, without judicial process, sell 
 the goods for the payment of freight. 4 When 
 tariffs of freight and fare are established upon a 
 railroad, and received and appropriated by the com- 
 pany without objection, the legal presumption is 
 that they were established by the authority of the 
 directors. 6 
 
 Liability in the Transportation of Cattle. — 
 A railroad company may be the common carrier of 
 cattle, and liable as such for their safe delivery. 
 The fact that it undertakes the transportation of 
 
 * 1 Parsons on Cont. 648-650, 680 ; Story on Bail. § 58S, 586. 
 
 3 Story on Bailments, § 685. 
 
 a Harmony v. Bingham, 2 Kernan, 99 ; see Finnie v. Glasgow and South 
 Western R. Co., 34 Eng. L. and Eq. 11. 
 
 4 Hunt v. Haskell, 24 Maine, 839; Fox v. M'Gregor, 11 Barb. 43. 
 Judgment will not be arrested on motion after verdict, for want of allega- 
 tion, in the declaration, of readiness to pay the freight on the goods being 
 received by the company, where the suit was against it on a special contract 
 for carriage of the goods with no provision for payment. Waterman v. Vt. 
 Central B. R. Co., 25 Vt. 701 
 
 6 Manchester and Lawrence R. R. v. Fisk (Supreme Ct. of N. H, June 
 T. 1856), 19 Law Rep. (Nov. 1856), p. 394 ; 33 N. H. not yet issued. Hilliard 
 v. Goold, id. 
 
AS COMMON CARRIER OF GOODS. 463 
 
 cattle for hire for such persons as choose to employ 
 it, establishes its relation as a common carrier, and 
 with it the duties and obligations which grow out 
 of the relation, whether the transportation of cattle 
 be regarded as its principal employment or only inci- 
 dental and subordinate. Cattle are, however, usually 
 received by the company under a special contract, 
 which excludes the stringent liability of a common 
 carrier. In a suit against it for damages to the 
 cattle, when a contract has been made, it cannot be 
 declared against as a common carrier in an action on 
 the case, but must be sued on the contract or for a 
 breach of duty arising out of it. 1 
 
 In England, the owner by these contracts assumes 
 all the risks of injury by the conveyance or other 
 contingencies ; the effect of which is to relieve the 
 company of responsibility, even where the injury has 
 been caused by the defective construction of the car, 
 or the gross negligence of the company's servants. 2 
 But in this country the company would not be 
 relieved by such a contract from the consequences 
 of gross negligence or misconduct. 8 
 
 1 Kimball v. Rut. and Bur. R. R. Co., 26 Vt. 24/7. See Wilsons v. Ham- 
 ilton, 4 Ohio State, 738. 
 
 2 Austin v. Manchester and Sheffield R. Co., 5 Eng. L. and Eq. 329 ; S. C. 
 16 Q. B. 600 ; 71 E. C. L. ; Chippendale v. Lancashire and Yorkshire R. Co., 
 7 id. 395 ; Morville v. Northern R. Co., 10 id. 366 ; Austin v. Manchester, 
 Sheffield, <fce. R. Co., 11 id. 506; 10 C B. 454; 70 E. C L.; Carr v. Lanca- 
 shire and Yorkshire R. Co., 14 id. 340 ; 1 Exch. 101 ; Walker v. York and 
 N. Midland R. Co., 22 Eng. L. and Eq. 315 ; S. C. 2 E. & B. 750 ; 75 E. C. 
 L. ; York, Newcastle and Berwick R. Co. v. Crisp, 14 C. B. 527 ; 78 E. 
 C. L. ; S. C. 25 Eng. L. and Eq. 396 ; Slim v. Great Northern R. Co., 14 C. 
 B. 147 ; 78 E. C. L. ; Broome's Commentaries on Common Law, 831, 832. 
 
 s Sager v. Portsmouth S. and P. and E. R. R. Co., 31 Maine, 228. See 
 1 Am. Rail. Cases, p.181, notes. 
 
464 LIABILITY 0E COMPAWT 
 
 To WHAT PARTIES THE COMPANY IS LIABLE FOR A 
 
 Breach oe Duty. — The owner of goods, as well as 
 his bailee, has a right of action against the railroad 
 company for the breach of its agreement to carry 
 them safely, although the agreement was made with 
 the bailee, to whom the goods had been delivered 
 by the owner. 1 Thus, if the company is under a 
 contract with an expressman to take all his pack- 
 ages for a year at a specified gross compensation, it 
 is liable to the owner of a package for a loss, and in 
 an action by the owner, it may also avail itself of 
 such exceptions as it has introduced, having a right 
 to introduce them, into the contract. The liability 
 of the company to the owner in such cases has been 
 placed on the ground that the expressman or for- 
 warder is the agent of the owner; and in some in- 
 stances on what is the true and better doctrine, that 
 the common carrier is under the obligation of a 
 public duty, and is liable in damages to the party 
 injured by the breach. 2 A judgment against the 
 owner in a suit by him against the railroad company 
 is a bar to an action for the same injury brought by 
 his bailee. 8 
 
 So in England, it has been held, on the ground of 
 a duty irrespective of contract, that a servant trav- 
 eling with his master on a railway may have an 
 
 * Elkins v. Boston and Maine R. R., 19 N. H. 338. 
 
 2 ~N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 380 ; Stoddard v. 
 Long Island R. R. Co., 5 Sandf. 180 ; Lang-worthy v. M". Y. and Harlem R. 
 R. Co., 2 E. D. Smith, 196 ; Green v. Clarke, 2 Kernan, 843 ; S. C. 13 Barb. 
 57 ; 6 Denio, 497. But see Crouch v. Great Northern R. Co. 34 Eng. L. 
 and Eq. 573; Pickford v. Grand Junction R. Co., 10 M. <fe W. 399. 
 
 8 Green v. Clarke, 2 Kernan, 343 ; S. C. 5 Denio, 497 ; 13 Barb. 57. 
 
AS COMMON CARRIER OF GOODS. 465 
 
 action in his own name, on the custom of the realm, 
 against the company for the loss of his luggage, 
 although the master took and paid for his ticket. 1 
 
 Damages tor Breach of Agreement to carry 
 Goods. — The damages against a railroad company 
 for breach of its contract or duty as a common car- 
 rier, are governed by /the same rules as determine the 
 damages against other common carriers, and are dis- 
 cussed in treatises on the law of damages. 2 If the 
 goods are totally lost by the default of the company, 
 the measure of damages is the market value of such 
 goods at the place of their destination, at the time 
 when they should have been delivered, deducting 
 freight ; and if not totally lost to the owner, he may 
 recover damages proportioned to his injury. 8 The 
 rule of damages for non-delivery, within the reasona- 
 ble time implied by law, or a period expressly fixed in 
 the agreement, is not altogether settled. The differ- 
 ence between the market value of the goods at the 
 place of delivery at the time when they should have 
 been delivered, and their market value at that place 
 at the time of actual delivery, with the necessary 
 expenses of the owner in consequence of the wrongful 
 
 ' Marshall v. York R. Co. 7 Eng. L. and Eq. 519. See Collett v. Lon- 
 don and N. W. R. Co. 6 id. 305 ; Great Northern R. Co. v. Harrison, 26 id. 
 443; S. C. lOExeh. 876. 
 
 3 Sedgwick on Dam. eh. xiii. ; Mayne on Dam. 153-163 ; 2 Parsons on 
 Cont. 468-470; Edwards on Bailments, 570-572. 
 
 ' Id. ; Stevens v. Boston and Maine R. R. Co., 1 Gray, 277 ; M'Henry v. 
 PhiL, Wil, and Bait. R. R. Co., 4 Harring. 448. 
 
 31 
 
466 LIABILITY OF COMPANY 
 
 delay, has been considered a proper element to be 
 taken into account in assessing the damages. 1 
 
 The mere omission. of the company to transport 
 the goods within a reasonable time, does not amount 
 to a conversion so as to render it liable for their full 
 value. 2 Nor can the owner abandon the goods and 
 recover their entire value, where they are uninjured 
 in quality, and there is a partial loss, but he can 
 recover only the price, at the place of delivery, of the 
 goods actually lost. 8 If the carrier refuses to per- 
 form a special agreement to carry goods, he will be 
 liable to the party with whom he has contracted for 
 the difference between the price agreed upon, and 
 the price for which the carriage might have been 
 procured of others at the time the goods were to 
 be received. 4 Where .there is a wrongful refusal 
 to deliver, and a subsequent delivery is made, the 
 company is not liable for consequential damages, 
 arising from delay to the consignee's work caused 
 
 1 Sangamon and Morgan R. E. Co. v. Henry, 14 111. 156 ; Nettles v. S. C. 
 E. B. Co., 7 Rich. 160 ; Kent v. Hudson Biver R. E. Co., 22 Barb. 278 ; Wil- 
 son v. York and Erie E. E. Co., 18 Eng. L. and Eq. 557. But in Wibert v. 
 N. Y. and Erie E. E. Co., 19 Barb. 36, the difference between the market 
 value at the proper time of delivery, and the market value at the time of 
 actual delivery 'was held to be an injury too remote to the breach to he 
 recoverable as damages. The Court of Appeals declined to pass upon the 
 question, it not being necessary to the decision of the case. 2 Kernan, 245. 
 Where a model was delivered to the company to be carried to a place where 
 it was to be offered in a competition for a prize, and did not arrive within 
 the time agreed upon for the carriage, so as to be offered in competition, the 
 chances for obtaining the prize were held not a proper matter to be included 
 in the damages. Watson v. Ambergate, &c. E. Co., 3 Eng. L. and Eq. 497. 
 
 2 Scovill v. Griffith, 2 Kernan, 609. 
 
 * Shaw v. S. C. E. E. Co., 5 Eich. 462; Nettles?;. S. C. E. E. Co., 7 id. 
 190; see Chicago and Eock Island E. E. Co. v. Warren, 16 111. 502. 
 4 Ogden v. Marshall, 4 Selden, 340. 
 
AS COMMON CARRIER OF GOODS. 467 
 
 by such refusal or for a loss of profits from the same 
 cause ; but it is liable for the expense of sending to 
 its office a second time for the goods. 1 
 
 Action- op Trover against the Company. — An 
 action of trover will not lie against the company 
 for a mere nonfeasance. 2 It cannot be maintained 
 against the company for non-delivery of goods, with- 
 out proof of a previous demand, unless its acts 
 amount to a conversion. 8 
 
 Burden of Proof. — The law imposes on the com- 
 mon carrier the obligation to deliver safely accord- 
 ing to his agreement. The bailor having proved 
 delivery to him and a loss, the burden of proof is on 
 the carrier to bring himself within the exceptions 
 to his liability which the law creates. 4 The proof 
 of non-delivery by the carrier, which is incumbent 
 on the owner, is satisfied by slight evidence. 5 But 
 where it was the duty of the company to whom the 
 owner delivered the goods, to forward them to a 
 certain place, and there deliver them to another 
 company which was to carry them still further, it is 
 not sufficient in a suit against the first company for 
 its breach of duty under the contract, merely to prove 
 that the goods never reached their destination, or to 
 
 ' Waite v. Gilbert, 10 Cush. 177. 
 
 " Bowlin v. Nye, 10 Cush. 416. 
 
 a Rome R. R. Co. v. Sullivan, 14 Geo. 283 ; Robinson v. Austin, 2 Gray, 
 664 ; Angell on Carriers, § 433. 
 
 4 Story on BaiL § 629 ; Angell on Carriers, g 202 ; Clark v. Barnwell, 12 
 How. 272 ; Alden v. Pearson, 3 Gray, 342. 
 
 • Angell on Carriers, §§ 470, 476 ; Edwards on Bailments, 566. 
 
468 LIABILITY AS CARRIER, OF GOODS. 
 
 give evidence of a loss which is equally consistent with 
 a loss by the one company as by the other. 1 Wheth- 
 er the carrier, who has been relieved by a special 
 contract from his liability as a quasi insurer is re- 
 quired to disprove negligence, is not settled. The 
 better opinion is that the only effect of the special 
 contract is, to add to the exceptions of losses by the 
 act of God and the public enemies made by the law, 
 those resulting from unavoidable accident, and still 
 leave it incumbent on the carrier to bring himself 
 within the special exception, and to show not only 
 that the loss arose from the excepted peril, but also 
 that it was not occasioned by his negligence. 2 
 
 1 Midland R. Co. v. Bromley, 33 Eng. L. and Eq. 235. 
 
 2 Whitesides v. Russell, 8 W. <fe S. 44; Camden and Amboy R. R. Co. v . 
 Baldauf, 16 Penn. State, 67 ; Davidson v. Graham, 2 Ohio State, 131 ; Gra- 
 ham v. Davis, 4 id. 362 ; Swindler v. Hilliard, 2 Rich. 286 ; Baker v. Brin- 
 son, 9 id. 201 ; Parsons v. Monteath, 13 Barb. 360 ; 2 Greenl. Ev., § 219 ; 
 but see 2 Greenl. Ev. § 218 ; Story on Bail. § 51 S ; N. J. Steam Nav. Co. v. 
 Merchants' Bank, 6 How. 384; Clark v. Barnwell, 12 id. 280. 
 
LIABILITY AS CARRIER OF PASSENGERS. 469 
 
 CHAPTER XVIII. 
 
 LIABILITY OF THE COMPANY AS A COMMON CARRIER OF 
 PASSENGERS. 
 
 Measure of Liability for the safety of Passen- 
 gers. — Common carriers of goods are, as stated in 
 the preceding chapter, responsible for all injuries 
 thereto, except those caused by the act of God or 
 the public enemies, even in the absence of negligence. 
 The facility of collusion with thieves, and of embez- 
 zlement, the ordinary exclusive possession by them 
 of the means of evidence, the entire separation of 
 the owner from his property during the transit, are 
 the leading grounds of public policy which gave 
 rise to this extraordinary responsibility. These con- 
 siderations do not apply to the carriage of persons. 
 Passengers must also have some freedom of volition, 
 and are not subject to that absolute dominion of the 
 carrier, which may be exercised over inanimate 
 things. It is their duty also to take reasonable care 
 of themselves in order to avoid accidents, and it is 
 presumed that they take upon themselves the una- 
 voidable risks of the mode of travel they adopt. 
 
 A distinction has, therefore, been taken between 
 the liability of the common carrier for goods, and 
 his liability for passengers, making him liable for 
 
470 LIABILITY OP COMPANY 
 
 injury to the latter, only in case of his negligence. 
 But the law, in its beneficence, will not admit any 
 trifling with the lives and limbs of human beings, 
 and therefore exacts the highest diligence and skill 
 of those to whose charge as common carriers they 
 are committed. Common carriers of passengers are 
 responsible for the slightest negligence, resulting in 
 •injury to them, or as the rule is stated in other words, 
 are required, in the preparation and management of 
 their means of conveyance, to exercise the highest 
 degree of diligence and skill which a reasonable 
 man would use under such circumstances. This ob- 
 ligation is imposed on them as a public duty, and by 
 their contract to carry safely as far as human care 
 and foresight will reasonably admit. The rule re- 
 quiring the highest degree of diligence of those who 
 undertake the carriage of passengers, which is famil- 
 iar in its application to the proprietors of stage 
 coaches, is equally applicable to railroad companies, 
 whose vehicles are propelled by the power of steam. 1 
 But an impracticable degree of skill and diligence is 
 not to be required of the company. 3 
 
 The company is bound to provide skillful and 
 
 1 Stokes v. Saltonstall, 13 Peters, 181 ; Hall v. Conn. River Steamboat 
 Co., 13 Conn. 319; Fuller v. Naugatuek K. R. Co., 21 Conn. 551; Derwort 
 v. Loomer, id. 245; Camden and Amboy R. R. Co. v. Burke, 13 Wend. 611 ; 
 Hegeman v. Western R. R. Corp., 16 Barb. 353; 3 Kernan, 24; Nashville 
 and Chattanooga R. R. Co. v . Messino, 1 Sneed, 220 ; Frink v. Potter, 17 111- 
 406 ; Galena and Chicago Union R. R. Co. u. Yarwood, 1*7 id. 509 ; 15 id. 
 468 ; Chicago and Mississippi R. R. Co. v. Patchin, 16 id. 202 ; Galena and 
 Chicago Union R. R. Co. v. Fay, 16 id. 558; Aurora Branch R. R. Co. «• 
 Grimes, 13 id. 685. 
 
 ! Galena and Chicago Union R. R. Co. v. Fay, 16 111. 558 ; Frink v. Potter, 
 17 id. 406. 
 
AS COMMON CARREER OF PASSENGERS. 4*71 
 
 careful servants, of good habits and in every respect 
 competent for the posts which they are appointed 
 to fill, as conductors, engineers, brakemen ; and is 
 responsible not only for their possession of such care 
 and skill, but also for the continued application of 
 these qualities at all times. 1 It is bound to use ad- 
 equate skill, and the utmost care and diligence in 
 providing such cars, engines, boilers, and other ma- 
 chinery as are safe and sufficient for the purposes for 
 which they are used ; and it will be responsible for 
 injuries to passengers, which the exercise of suchskill 
 and diligence might have prevented. 2 It is respon- 
 sible for injuries arising from the breaking of its ma- 
 chinery, from the effect of frost, which might have 
 been avoided by proper precautions. 8 It does not, how- 
 ever, absolutely warrant their sufficiency. According- 
 ly, it has been held that if an accident happens from 
 a defect which might have have been discovered 
 and remedied upon the most careful and thorough 
 examination, such accident must be ascribed to neg- 
 ligence, for which the company is liable in case of 
 injury to a passenger resulting from the accident. 
 But where the accident arises from a hidden and 
 ititernal defect, which a careful and thorough exam- 
 ination would not disclose, and which could not be 
 guarded against by the exercise of a sound judg- 
 
 1 Gillenwater v. Madison and Indianapolis R. R. Co., 5 Indiana, 338 ; 
 Nashville and Chattanooga R. R. Co. v. Messino, 1 Sneed, 226 ; M'Kinney 
 v. Neil, 1 M'Lean, 650; Peek v. Neil, 3 id. 22; Stokes v. Saltonstall, 13 Pe- 
 ters, 181. 
 
 1 N. J. R. R. Co. v. Kennard, 21 Penn. State, 208. 
 
 » Frink v. Potter, 17 111. 407. 
 
472 LIABILITY OP COMPANY 
 
 ment, and the most vigilant oversight, then the 
 company is not liable for the injury. 1 
 
 Applying this principle to railroad companies 
 which has been applied to the proprietors of stage 
 coaches in Massachusetts after a thorough examina- 
 tion of the authorities, the company which con- 
 tracts with a skillful and competent manufacturer 
 to construct its machinery, would not be responsi- 
 ble for injuries arising from latent defects which 
 could not be discovered after the delivery thereof 
 to the company, upon a vigilant and careful exam- 
 ination by a competent person, although they might 
 have been discovered by the manufacturer, upon 
 such an examination, in the process of construc- 
 tion. A rule has, however, been adopted in New 
 York by a divided court, which in effect makes 
 the company a warrantor of the skill and fidel- 
 ity of such manufacturer, although in no sense 
 the servant of the company or under its con- 
 trol. Its responsibility is held to be the same, 
 whether the machinery was manufactured by its 
 own immediate servants in its own workshops, or 
 by other persons of whom it was purchased ; and if 
 the defect could have been ascertained by any test 
 which persons engaged in the business ought to 
 have known, either by the manufacturer during 
 the construction, or by the servants of the company 
 
 1 Ingalls v. Bills, 9 Met. 1. This was a case where the proprietors of a 
 coach were held not answerable for an injury to a passenger, received solely 
 by reason of the breaking of one of the iron axle-trees in which there was 
 a very small flaw, entirely surrounded by sound iron, one fourth of an inch 
 thick, and which could not possibly be discovered by an examination 
 externally. 
 
AS COMMON CARRIER OF PASSENGERS. 473 
 
 afterwards, it is responsible for the consequences 
 thereof. It engages, it was considered, that all that 
 well-directed skill can do has been done to furnish 
 sufficient machinery, and undertakes not only that 
 the manufacturer had the requisite capacity, but 
 that it was skillfully exercised in the particular 
 instance. Thus, where the injury occurred by the 
 breaking of the axle, which had been purchased of 
 a skillful manufacturer, and appeared to be of the 
 best quality of iron, and to be well made, but after 
 it was broken a fire-crack was discovered and the 
 iron found defective, the company was held respon- 
 sible, on the ground that the defect might have 
 been discovered by the manufacturer in the pro- 
 gress of the work by the application of tests known 
 to persons skilled in the business. 1 
 
 The company is bound to exercise the most exact 
 diligence, not only in the management of the trains, 
 but also in the structure and supervision of its road, 
 and in all the subsidiary arrangements which are 
 
 eman v. Western R. E. Corp. 16 Barb. 353; S. C. 3 Kernan, 9; 
 two judges dissenting in the Court of Appeals. The decision seems to be 
 in conflict with the principle of Ingalls v. Bills, 9 Met. 1, notwithstanding 
 Gardiner, C. J., delivering the opinion of the Court, attempts to draw a dis- 
 tinction between the two cases, on the ground that different precautions 
 and different tests are required in the case of railroads and of stage-coaches. 
 This is certainly true ; but the principle which governs both is the same. 
 The exercise of a " sound judgment and the most vigilant oversight " are 
 required of the proprietors of both, and the exercise of these qualities in 
 each case may call for a different class of precautions, but neither, it would 
 seem, are by the common law the warrantors of the absolute sufficiency 
 of their vehicles or of the application of the skill and fidelity of all the 
 artisans, in no way under their control, whose work has entered into the 
 construction. The judge delivering the opinion, it will be noticed, although 
 sustaining the instructions, uses language somewhat less decided. 
 
4*T4 LIABILITY OF COMPANY 
 
 necessary for the safety of passengers. It is under 
 the same responsibility for the proper condition of 
 its track as for the sufficiency of its machinery 
 and the fidelity of its servants. 1 It is its duty to see 
 that a switch by which another railroad company 
 connects with and enters on its track, is rightly con- 
 structed, attended, and managed ; and is responsible 
 for injuries which happen to its passengers through 
 the carelessness of the switch-men, notwithstanding 
 the switch was made by the proprietors of the other 
 road, by whose servants it is tended. 2 It is also 
 required in the management of the switch to see 
 that the rails are in a right position, and not to 
 trust exclusively to the lever when the rails are in 
 open view while moving it ; and to keep the rails 
 firmly secured ; and it is responsible for injuries 
 to a passenger where the cars run off the track 
 through neglect to use these precautions. 8 It has 
 been considered its duty to keep its track inclosed 
 by a fence, to prevent collisions with cattle whereby 
 passengers are likely to be injured. 4 It is bound to 
 provide safe and sufficient means of access to its 
 stations for the accommodation of passengers. 6 It 
 is required to avail itself of new improvements 
 whose utility has been tested, and which are well 
 
 1 Sehopman v. Boston and Worcester R. R. Corp. 9 Cush. 24. 
 
 2 McElroy v. Nashua and Lowell R. R. Corp. 4 Cush. 400 ; Morris ». 
 Androscoggin R. R. Co. 89 Maine, 2*76. 
 
 8 Curtiss v. Rochester and Syracuse Railroad Co. 20 Barb. 282. 
 
 * In Re Rensselaer and Saratoga R. R. Co. 4 Paige, 658 ; Cornwall v. Sul- 
 livan R. R. Co. 8 Foster, 168, 169. 
 
 * Murch v. Concord R. R. Corp. 9 Foster, 9 ; Martin v. Great N. R. Co. 
 30 Eng. L. and Eq. 478. 
 
AS COMMON CARRIER OF PASSENGERS. 475 
 
 known as safeguards against accidents ; and is re- 
 sponsible for injuries occasioned by its omission to 
 make use of them. Whether the invention is a 
 necessary precaution against danger, is a question 
 for the jury. 1 It is required to stop its trains long 
 enough at stations where passengers are left, to give 
 them a reasonable opportunity to leave the cars. 2 
 It has been considered bound to warn passengers of 
 particular passages unusually dangerous and requir- 
 ing of them superior circumspection. 8 
 
 If, through the default of the company or of its 
 servants, the passenger is placed in such a perilous 
 condition as to render it an act of reasonable pre- 
 caution for the purpose of self-preservation to leap 
 from the cars, the company is responsible for the 
 injury he receives thereby, although if he had re- 
 mained in the cars he would not have been injured. 4 
 But the passenger has no right to leap from the 
 train while it is running, simply because he has 
 been carried past a station where it was the duty of 
 the company to leave him ; and he cannot recover 
 for an injury received in the leap. 5 
 
 Negligence of the Passenger. — The company is 
 
 1 Hegeman v. Western R. R. Corp. 16 Barb. 353 ; 3 Kernan, 9. 
 
 * Fuller v. Naugatuck R. R. Co. 21 Conn. 657. 
 
 * Laing v. Colder, 8 Barr, 479 ; N. J. R. R. Co. v. Kennard, 21 Penn. 
 State, 203. 
 
 * Stokes v. Saltonstall, 13 Peters, 181; Ingalls v. Bills, 9 Met. 1 ; Penn- 
 sylvania R. R. Co. o. Aspell, 23 Penn. State, 147 ; Galena and Chicago 
 Union R. R. Co. v. Yarwood, 15 111. 468, 471 ; 17 id. 509 ; Frink v. Potter, 
 id. 411 ; Eldridge v. Long Island R. R. Co. 1 Sandf. 89. 
 
 6 Penn. R. R. Co. v. Aspell, 28 Penn. State, 147. 
 
476 LIABILITY OF COMPANY 
 
 not responsible for an injury to a passenger which 
 would not have happened but for his negligence, or 
 to which his negligence substantially contributed ; 
 notwithstanding it is itself chargeable with a breach 
 of duty. 1 Thus, the company is not responsible for 
 injuries to a passenger to which he has contributed, 
 by a breach of its reasonable regulations and the 
 proper directions of the officers of the train. 2 
 
 A passenger who is injured by the negligence of 
 the company, while riding in the baggage car, is 
 entitled to recover, if he was there lawfully, although 
 he would not have been injured if he had been in the 
 passenger car, which was a less dangerous place. 8 
 
 Measuee oe liability to passengers not paying 
 eaee. — The terms, slight, ordinary, and gross negli- 
 gence, are familiar to the treatises and decisions on 
 the law of bailments. The distinction between them 
 is not very appreciable. A hired bailee is said to be 
 chargeable with ordinary negligence, and a gratuit- 
 
 ' Laing v. Colder, 8 Barr, 479 ; Murch v. Concord R. R. Corp. 9 Foster, 
 9 ; Penn. R. R. Co. «. Aspell, 23 Penn. State, 147 ; Holbrook v. Utica and 
 Schenectady R. R. Co. 2 Kernan, 236. It is not yet settled in England 
 "whether the negligence of the passenger is a good defence to an action 
 against the company, the action being for a tort founded on contract, and 
 distinguished from an action for a tort founded on negligence only. Martin 
 v. Great N. R. Co. 30 Eng. L. and Eq. 473. 
 
 2 Galena and Chicago Union R. R. Co. v. Yarwood, 15 I1L 468 ; S. 0. 
 17 id. 509; Galena and Chicago Union R. R. Co. •«. Fay, 16 id. 558; see 
 Lawrenceburgh and Upper Miss. R. R. Co. v. Montgomery, 7 Ind. 474; 
 Zemp v. W. and M. R. R. Co., 9 Rich. 84. It is held in Penn. R. R. Co. v. 
 M'Closkey, 23 Penn. State, 526, that a railroad company carrying passengers, 
 cannot allege that a passenger is in fault in obeying specific instructions of the 
 conductor, instead of the general directions of which he has. been informed. 
 
 8 Carroll v. N. Y. and N. H. R. R. Co., 1 Duer, 571. 
 
AS COMMON CAEEIEB OF PASSENGEES. 477 
 
 OU8 bailee with, gross negligence. There are, doubt- 
 less, cases where justice dictates that a bailee who 
 receives compensation for his service, should be 
 held liable for a loss occasioned by his neglect to 
 use certain precautions ; whereas, in the same case, if 
 his service were gratuitous, he should not be made 
 chargeable. 
 
 It is, however, mainly a question of fact for the 
 jury to determine upon a view of the nature of 
 the employment, the skill and diligence required in 
 it, the value of the subject of the bailment, and the 
 relations of the parties, what, under all the circum- 
 stances, is the duty of the bailee, and whether he 
 has failed to discharge it. The distinction between 
 negligence and gross negligence has been discounte- 
 nanced in modern authorities, as unintelligible. 1 It 
 has been substantially discarded in its application to 
 the transportation of passengers by common carriers, 
 in vehicles drawn by steam power ; an employment 
 requiring the faithful and vigilant exercise of peculiar 
 skill, the omission to exercise which is greatly 
 dangerous to the lives and limbs of human beings. 
 Their default is not less a violation of public duty than 
 of their contract with the passenger. Any negligence 
 under such circumstances may well be deemed culp- 
 able, rendering the proprietors of the railroad liable 
 for injuries, even in case of the gratuitous carriage of 
 a passenger. Even if they are to be considered as 
 liable only for gross negligence, they may be held, 
 
 1 Wylde „. Pickford, 8 M. & W. 443, 461, 462 ; Wilson v. Brett, 11 id. 
 113 ; Hinton v. Dibbin, 2 0, B. 646 ; Whitney v. Lee, 8 Met. 91. 
 
478 LIABILITY OF COMPANY 
 
 ■when negligent in any degree, to be guilty of that ; 
 according to the rule recognized by the authorities, 
 that the neglect to use the peculiar skill in an 
 employment which requires it, is gross negligence. 
 The present tendency of the law is to hold the 
 common carrier of passengers by steam to substan- 
 tially the same liability for passengers traveling 
 free, as for those paying fare, i provided they are 
 lawfully on the train. 1 
 
 1 Steamboat New World v. King, 16 Howard, 471, 474. This was a suits 
 in admiralty against the proprietors of a steamboat, for an injury caused by 
 the bursting of a boiler, through the negligence of their servants, to a passen- 
 ger who was being carried free of charge. Curtis, J., said, " The theory 
 that there are three degrees of negligence, described by the terms slight, 
 ordinary, and gross, has been introduced into the common law from some of 
 the commentators on the Roman Law. It may be doubted if these terms 
 can be usefully applied in practice. Their meaning is not fixed, or capable 
 of being so. One degree, thus described, not only may be confounded with 
 another, but it is quite impracticable exactly to distinguish them. Their 
 signification necessarily varies according to circumstances, to whose influence 
 the courts have been forced to yield, until there are so many real exceptions 
 that the rules themselves can scarcely be said to have a general operation. 
 In Storer v. Oowen, 18 Maine, 177, the Supreme Court of Maine say, * How 
 much care will, in a given case, relieve a party from the imputation of gross 
 negligence, or what omission will amount to the charge, is necessarily a 
 question of fact, depending on a great variety of circumstances which the 
 law cannot exactly define.' Mr. Justice Story (Bailments, § 11,) says, 
 ' Indeed, what is common or ordinary diligence is more a matter of fact than 
 of law.' If the law furnishes no definition of the terms gross negligence, or 
 ordinary negligence, which can be applied in practice, but leaves it to 
 the jury to determine, in each case, what the duty was, and what omissions 
 amount to a breach of it, it would seem that imperfect and confessedly unsuc- 
 cessful attempts to define that duty, had better be abandoned. 
 
 " Recently, the judges of several courts have expressed their disappro- 
 bation of these attempts to fix the degrees of diligence by legal definitions, 
 and have complained of the impracticability of applying them. Wilson v. 
 Brett, 11 Meeson & Wels. 113; Wyld v. Pickford, 8 ib. 443, 461, 462; Hin- 
 ton v. Dibbin, 2 Q. B. 646, 651. It must be confessed that the difficulty in 
 defining gross negligence, which is apparent in perusing such cases as 
 Tracy et al. v. Wood, 3 Mason, 132, and Foster v. the Essex Bank, 17 Mass. R. 
 
AS COMMON CARRIER OF PASSENGERS. 479 
 
 In a suit against the Philadelphia and Beading 
 Railroad Company for damages to a passenger, the 
 following facts appeared. The plaintiff himself was 
 
 479, would alone be sufficient to justify these complaints. It may be added 
 that some of the ablest commentators on the Roman Law, and on the civil 
 code of France, hare wholly repudiated this theory of three degrees of dili- 
 gence, as unfounded in principles of natural justice, useless in practice, and 
 presenting inextricable embarrassments and difficulties. See Toullier's 
 Droit Civil, 6th vol., p. 239, <fcc. ; 11th vol., p. 203, <fcc. ; Makeldey, Man. du 
 Droit Romain, 191, <fec. 
 
 " But whether this term, gross negligence, be used or not, this particular 
 case is one of gross negligence, according to the tests which have been 
 applied to such a case. 
 
 " In the first place, it is settled that ' the bailee must proportion his eare 
 to the injury or loss which is likely to be sustained by any improvidence 
 on his part.' Story on Bailments, § 15. 
 
 " It is also settled, that if the occupation or employment be one requiring 
 skill, the failure to exert that needful skill, either because it is not possessed or 
 from inattention, is gross negligence. Thus Heath, J., in Shields v. Blackburne, 
 
 1 H. Bl. 161, says, *If a man applies to a surgeon to attend him in a dis- 
 order for a reward, and the surgeon treats him improperly, there is gross 
 negligence, and the surgeon is liable to an action ; the surgeon would also 
 be liable for such negligence if he undertook gratis to attend a 6ick person, 
 because his situation implies skill in surgery.' And Lord Loughborough 
 declares that an omission to use skill is gross negligence. Mr. Justice Story, 
 although he controverts the doctrine of Pothier, that any negligence renders 
 a gratuitous'bailee responsible for the loss occasioned by his fault, and also 
 the distinction made by Sir William Jones between an undertaking to carry 
 and an undertaking to do work, yet admits that the responsibility exists 
 when there is a want of due skill or an omission to exercise it. And the 
 same may be said of Mr. Justice Porter, in Percy v. Millaudon, 20 Martin, 75. 
 This qualification of the rule is also recognized in Stanton et al. v. Bell et al. 
 
 2 Hawks, 145. 
 
 " That the proper management of the boilers and machinery of a 
 steamboat requires skill, must be admitted. Indeed, by the act of Con- 
 gress of August 30, 1852, great and unusual precautions are taken to ex- 
 clude from this employment all persons who do not possess it. That an 
 omission to exercise this skill vigilantly and faithfully, endangers, to a 
 frightful extent, the lives and limbs of great numbers of human beings, the 
 awful destruction of life in our country by explosions of steam-boilers but 
 too painfully proves. We do not hesitate, therefore, to declare that negli- 
 gence in the care or management of such boilers, for which skill is neces- 
 
480 LIABILITY OF COMPANY 
 
 the president of another railroad company > and a 
 stockholder in the defendant company, and on his 
 account and on behalf of others, was inquiring into 
 its affairs. He was on the road of the defendants for 
 the purpose of viewing it, and the works of the com- 
 pany, by invitation of its president, and was being 
 carried, without any charge for fare, in a small loco- 
 motive car used for the convenience of its officers, and 
 not in the usual passenger cars. The injury to his per- 
 son was caused by this car coming in collision .with a 
 locomotive and tender in the charge of another agent 
 or servant of the company, which were on the same 
 track, and moving in an opposite direction. Another 
 agent of the company, in the exercise of proper care 
 and caution, had given orders to keep this track clear. 
 The driver of the colliding engine acted in disobedi- 
 ence and disregard of these orders, and thus caused 
 the collision. The court instructed the jury substanti- 
 ally as follows : first, that if the plaintiff was lawfully 
 on the road at the time of the collision, and the col- 
 
 sary, the probable consequence of -which negligence is injury and loss of 
 the most disastrous kind, is to be deemed culpable negligence, rendering 
 the owners and the boat liable for damages, even in case of the gratuitous 
 carriage of a passenger. Indeed, as to explosion of boilers and flueB, or 
 other dangerous escape of steam on board steamboats, Congress has, in clear 
 terms, excluded all such cases from the operation of a rule requiring gross 
 negligence to be proved, to lay the foundation of an action for damages 
 to persons or property." 
 
 The term negligence is well defined by Alderson, B., in Blyth v. Birm- 
 ingham Waterworks Co., 86 Eng. L. andEq. 506, 508: "Negligence I de- 
 fine to be, either the omitting to do something that a reasonable man would 
 do, or the doing something that a reasonable man would not do; in either 
 case causing mischief to a third party ; not intentionally, for then it would 
 not be negligence." 
 
AS COMMON CARRIER OP PASSENGERS. 481 
 
 lision and consequent injury to him were caused by 
 the gross negligence of one of the servants of the 
 defendants, then and there employed on the road, 
 he is entitled to recover, notwithstanding the cir- 
 cumstances given in evidence, and relied upon by 
 the defendants as forming a defence to the action, 
 to wit, that the plaintiff was a stockholder in the 
 company, riding by invitation of the president, 
 paying no fare, and not in the usual passenger cars ; 
 secondly, the fact that the engineer having the control 
 of the colliding locomotive, was forbidden to run on 
 that track at the time, and had acted in disobedience 
 of the order, was not a defence to such action. 
 The jury under the instructions of the court, found 
 a verdict for the plaintiff, and judgment thereon 
 was affirmed by the Supreme Court of the United 
 States. The fact that the passage was gratuitous 
 was not admitted as a defence, on the ground that 
 the company was responsible by the general rule 
 which make the master liable for the acts of his 
 servant, irrespective of any contract, express or 
 implied, or any other relation between the injured 
 party and the master, and that when carriers un- 
 dertake to convey persons by the powerful and dan- 
 gerous agency of steam, whether the consideration 
 be pecuniary or not they are held to the greatest 
 possible care and diligence, and any negligence under 
 such circumstances is " gross." * The same doctrine 
 
 ' Philadelphia and Reading R. R. Co. u. Derby, 14 Howard, 468, 484. 
 Grier, J. : " The liability of the defendants below, for the negligent and 
 injurious act of their servant, is not necessarily founded on any contract 
 
 32 
 
482 LIABILITY OF COMPANY 
 
 has since been approved by the same court, and 
 applied to an injury received by a " steamboat man " 
 who in accordance with the usage of masters of 
 
 or privity between the parties, nor affected by any relation, social or other- 
 wise, which they bore to each other. It is true, a traveler, by stage coach, or 
 other public conveyance, who is injured by the negligence of the driver, 
 has an action against the owner, founded on his contract to carry him safely. 
 But, the maxim of ' respondeat superior ' which, by legal imputation, makes 
 the master liable for the acts of his servant, is wholly irrespective of any 
 contract, express or implied, or any other relation between the injured party 
 and the master. If one be lawfully on the street or highway, and_another's 
 servant carelessly drives a stage or carriage against him, and injures his 
 property or person, it is no answer to an action against the master for such 
 injury, either, that the plaintiff was riding for pleasure, or that he was a 
 stockholder in the road, or that he had not paid his toll, or that he was the 
 guest of the defendant, or riding in a carriage borrowed from him, or that 
 the defendant was the friend, benefactor, or brother of the plaintiff. These 
 arguments, arising from the social or domestic relations of life may, in some 
 cases, successfully appeal to the feelings of the plaintiff, but will usually have 
 little effect where the defendant is a corporation, which is itself incapable 
 of such relations or the reciprocation of such feelings. In this view of the 
 case, if the plaintiff was lawfully on the road at the time of the collision, 
 the court were right in instructing the jury that none of the antecedent cir- 
 cumstances, or accidents of his situation, could affect his right to recover. 
 
 " It is a fact peculiar to this case that the defendants, who are liable for 
 the act of their servant coming down the road, are also the carriers who 
 were conveying the plaintiff up the road, and that their servants immediately 
 engaged in transporting the plaintiff were not guilty of any negligence, or 
 in fault for the collision. But we would not have it inferred, from what 
 has been said, that the circumstances alleged in the first point would affect 
 the case, if the negligence which caused the injury had been committed by 
 the agents of the company who were in the immediate care of the engine 
 and car in which the plaintiff rode, and he was compelled to rely on these 
 counts of his declaration, founded on the duty of the defendant to carry him 
 safely. This duty does not arise alone from the consideration paid for the 
 service. It is imposed by the law, even where the service is gratuitous. 
 ' The confidence induced by undertaking any service for another, is a suffi- 
 cient legal consideration to create a duty in the performance of it.' See 
 Coggs v. Bernard, and cases cited in 1 Smith's Leading Cases, 95. It is true, 
 a distinction has been taken, in some cases, between simple negligence, and 
 great or gross negligence ; and it is said, that one who acts gratuitously is 
 liable only for the latter. But this case does not call upon us to define the 
 
AS COMMON CARRIER OF PASSENGERS. 483 
 
 steamboats, was admitted by the master on board 
 the defendant's boat free of charge. The injury- 
 was occasioned by the bursting of the boiler, 
 through the negligence of the master of the boat, 
 while racing with another boat in order to reach a 
 landing place before it. It was held that the mas- 
 ter was authorized to give a free passage to the 
 plaintiff by a general usage, not unreasonable in it- 
 self, and indirectly beneficial to the owners, and had 
 power to bind them thereby ; and that the manage- 
 ment of the boilers and machinery requiring skill, 
 the failure to exercise it, either because it is not 
 possessed or from inattention, is culpable negligence 
 rendering the owners liable for injury resulting 
 therefrom, even to passengers who are carried gra- 
 tuitously. 1 
 
 difference (if it be capable of definition), as the verdict has found this to be 
 a case of gross negligence. 
 
 " When carriers undertake to convey persons by the powerful but danger- 
 ous agency of steam, public policy and safety require that they be held to 
 the greatest possible care and diligence. And whether the consideration 
 for such., transportation be pecuniary or otherwise, the personal safety of the 
 passengers should not be left to the sport of chance or the negligence of 
 careless servants. Any negligence in such cases may well deserve the 
 epithet of ' gross.' In this view of the ease, also, we think there was no 
 error in the first instruction.' - It was further held in this case, that the fact 
 that the servant by whose negligence the injury was committed was acting 
 in disobedience of orders, was not a defence to the action. 
 
 1 Steamboat New World v. King, 16 Howard, 469, 4/74; ante, p. 478, 
 note; see Gillenwater v. Madison and Indianapolis R. R. Co. 5 Indiana, 
 339 ; Great Northern R. Co. v. Harrison, 10 Exch. 376 ; 26 Eng L. and Eq. 
 443; 1 Parsons on Cont. 691-695. The company cannot contract for 
 exemption from liability for gross negligence. Pennsylvania R. R. Co. v. 
 M'Closkey, 23 Penn. State, 526. 
 
484 liability of company 
 
 Liability toe injuries to Peesons Unlawfully 
 on the Train. — The company is not liable for any 
 but willful injuries to persons unlawfully on its trains. 
 Thus, where a person, in violation of the rules of the 
 company, which were known to him, was permitted 
 by the engineer to ride with him upon the engine, 
 without the knowledge of the conductor and paying 
 no fare, it was decided that he was unlawfully on 
 the train, and could not recover of the company 
 for injuries sustained by him while riding there. 1 
 
 Liability foe passengers on Freight Trains. — 
 The company must be carrying a person as a com- 
 mon carrier of passengers, in order to be liable 
 to him as such. Railroad companies sometimes 
 take passengers by their freight trains, although 
 they are not common carriers of passengers by 
 these trains unless they make their carriage by 
 them an habitual business. If they are accus- 
 tomed to have a special car attached to such 
 trains, fitted up and designed for passengers, into 
 which they admit all persons ' applying for pas- 
 sage, their liability for the carriage of such per- 
 sons is the same as when carried on their regular 
 passenger trains. But a different rule may well 
 apply where, for the special accommodation of the 
 applicants, they admit persons on board such trains 
 without holding themselves out as common carriers 
 
 1 Robertson v. N. Y. and Erie R. R. Co., 22 Barb. 91 ; see ante, ch. jdi., 
 j). 284. It was also decided in this ease, that the presumption was against 
 the authority of the engineer to allow a person to ride on the engine, 
 ■whether h.e paid fare or rode free. 
 
AS COMMON CARRIER OF PASSENGERS. 485 
 
 of passengers by them. In such a case, all that could 
 reasonably be required of them by a passenger is 
 such accommodation and management as are usual 
 with freight trains. 1 Before the road is fairly opened 
 to general business, the company may render itself 
 liable as a common carrier of passengers by taking 
 them and receiving pay, although no passenger cars 
 are attached to the engine, and only open cars, used 
 for carrying iron and wood, with seats placed across 
 them, are used. 2 
 
 The Liability of the company to Passengers 
 purchasing tickets of it to places beyond its 
 Terminus. — The liability of the company for injuries 
 to passengers to whom it has sold tickets to points 
 beyond its terminus, has already been noticed in the 
 preceding chapter. 8 
 
 Liability of Persons, other than the Proprie- 
 tors of the Road, contracting to carry persons 
 over it. — If a common carrier of passengers contracts 
 to carry them safely over a road belonging to other 
 parties, he cannot discharge himself from liability 
 for an injury received by them on such road, upon 
 the ground that the trains are under the conduct 
 and control of the servants of others, by whose neg- 
 ligence the injury was caused. He undertook by 
 his contract the safe carriage of the passengers ; and 
 
 1 Murch v. Concord R. R. Corp., 9 Foster, 9; Lawrenceburgh and Upper 
 Mississippi R. R. Co. v. Montgomery, 7 Ind. 477. 
 
 2 N. and C. R. R. Co v. Messino, 1 Sneed (Tenn.) 220. 
 
 3 Ante, ch. xviii. pp. 461-158. 
 
486 LIABILITY OP COMPANY 
 
 in fulfilling it, has made those servants his own. Thus 
 it was held in Pennsylvania, where the road was 
 owned and the motive power furnished by the State, 
 which were under the control of its servants, by 
 whose default the injury was occasioned, that a 
 party carrying passengers on the road and doing 
 business thereon as a common carrier by virtue of 
 a contract with the State, was liable for an injury 
 to a passenger who had contracted with him for a 
 passage. 1 
 
 Liability of the company to passengers 
 purchasing tickets of other companies, when 
 carried in trains under the control of its ser- 
 VANTS. — Arrangements are customary among rail- 
 road companies by which one sells through tickets 
 over its own and other roads, and accounts to the 
 proprietors of the other roads for a proportionate 
 share of the fare. A company, over whose road 
 tickets have been sold under such arrangements, is 
 liable to a passenger who is injured by its servants 
 while riding over its road. It may authorize the sale 
 of rights of passage at other places than its own sta- 
 tions, and make other companies its agents for that 
 purpose, as it does when it authorizes them to sell 
 through tickets over its road. Nor is its liability 
 affected by the circumstance that the passenger, hold- 
 ing such a ticket, is carried through in the cars of the 
 other company, where they are under the control 
 of its own servants and drawn by its own locomotive. 
 
 1 Peters v. Rylands, 20 Penn. State, 497. See Jordan v. Fall River R. R. 
 Co., 5 Cush. 69. 
 
AS COMMON CARRIER OF PASSENGERS. 487 
 
 Thus, where the plaintiff purchased, at Albany or 
 Springfield, tickets for himself and wife, of the agents 
 of the Western Railroad Company, through to Bos- 
 ton over its own line and that of the Boston and 
 "Worcester Railroad Corporation, according to an 
 arrangement between the two companies authorizing 
 the sale of such tickets ; and the cars of the Western 
 Railroad Corporation were, on reaching Worcester, 
 attached to the engine of the Boston and Worcester 
 Railroad Corporation, in the control of its servants, 
 whose line there commenced, it was held, that the 
 last named corporation assumed towards the plain- 
 tiff and his wife, when coming upon its road by vir- 
 tue of such tickets, the relation of a common carrier 
 of passengers, and was liable for an injury to the 
 wife during her passage thereon. 1 
 
 Public duty of the company towards persons 
 traveling upon its road in the trains operated 
 by Other Carriers. — The doctrine is now quite well 
 established that a railroad company owes a public 
 duty, irrespective of contract, to all persons lawfully 
 passing upon its road. It is under an obligation to 
 them to keep its road in a safe and proper condition. 2 
 As the obligation arises from public duty, its breach 
 renders it responsible to a party suffering special 
 damage therefrom, although there is no privity of 
 
 1 Schopman v. Boston and Worcester R. R. Corp., 9 Cush, 24. 
 
 2 See Farwell v. Boston and Worcester R. R. Corp., 4 Met. 61 ; M'Elroy 
 v. Nashua and Lowell R. R. Corp., 4 Cush. 403 ; Schopman v. Boston and 
 Worcester R. R. Corp., 9 id. 24. 
 
488 LIABILITY OF COMPANY 
 
 contract between him and the company, as where the 
 contract for his safe carriage has been made with 
 some other party. A sufficient privity exists between 
 a party from whom and one to whom a legal duty is 
 owing, to sustain an action for special injury result- 
 ing from its breach. 1 So, also, where one company 
 by contract or license, lawfully runs its trains in the 
 charge of its servants over the road of another, a 
 passenger in such trains may recover -damages of the 
 company owning the road for an injury received 
 from the improper condition of the road, or the mis- 
 conduct of its servants in the management of the 
 switches. 2 
 
 Liability for passengers carried m Ferry 
 Boats. — As ferries are, in many instances, used by 
 railroad companies, either at the termini or at inter- 
 mediate points of their line, it may be well here to 
 state that ferrymen are common carriers, and that 
 the circumstance of their using a ferry cannot lessen 
 their liability for the safe carriage of the passengers 
 over it. 8 
 
 1 Skinner v. London, Brighton, and South Coast R. Co., 2 Eng. L. and 
 Eq. 360 ; Collett v. London and N. W. R. Co., 6 id. 305 ; Marshall v. York, 
 Newcastle, and Berwick R. Co., 7 id. 519 ; Great N. R. Co. o. Harrison, 26 
 id. 443 ; Nolton v. Western R. R. Co., 10 Howard Pr. 97 ; see Phil, and 
 Reading R. R. Co. v. Derby, 14 How. 485. 
 
 2 Sawyer v. Rut. and Bur. R. R. Co., 2*7 Vt. 370 ; see M'Elroy v. Nashua 
 and Lowell R. R. Corp., 4 Gush. 403 ; Schopman •«. Boston and Worcester 
 R. R. Corp., 9 id. 24 ; contra, Mureh v. Concord R. R. Corp., 9 Foster, 9. 
 
 8 Fisher v. Clisbee, 12 111. 349 ; Richards v. Fuqua, 28 Mississippi, 792; 
 Wilsons v. Hamilton, 4 Ohio State, 722 ; White v, Winnesimmet Co., 7 Cush. 
 155; Willoughby v. Horridge, 16 Eng. L. and Eq. 437. 
 
AS COMMON CARRIER OF PASSENGERS. 489 
 
 Durr of the company to receive Passengers 
 
 AND TO CARRY THEM ACCORDING TO ITS PROFES- 
 SIONS. — The company is under a public duty, as a 
 common carrier of passengers, to receive all who 
 offer themselves as such and are ready to pay the 
 usual fare, and is liable in damages to a party whom 
 it refuses to carry without a reasonable excuse. 1 It 
 may decline to carry persons after its means of con- 
 veyance have been exhausted, and refuse such as 
 persist in not complying with its reasonable regula- 
 tions, or whose improper behavior — as by their 
 drunkenness, obscene language, or vulgar conduct — 
 renders them an annoyance to other passengers. 
 But it cannot make unreasonable discriminations 
 between persons soliciting its means of conveyance, 
 as by refusing them on account of personal dislike, 
 their occupation, condition in life, complexion, race, 
 nativity, political or ecclesiastical relations. 2 It is 
 not obliged to receive passengers by its freight 
 trains, unless it makes their carriage by such trains 
 an habitual business. 8 
 
 The company is answerable in damages to a pas- 
 senger whom it neglects to carry according to its 
 agreement. Thus, if by the ticket which it has sold 
 to him he is to be carried through to his destination 
 in a train starting at a certain time, he has a right 
 
 1 Beekman v. Saratoga and Schenectady R. E. Co., 3 Paige, 75 ; Galena 
 and Chicago Union R. R. Co. v. Yarwood, 15 HI. 472; Commonwealth v. 
 Power, 7 Met. 601 ; 1 Paraons on Cont. 696. 
 
 2 See Jeneka v. Coleman, 2 Sumner, 221 ; Bennett v. Dutton, 10 
 N. H. 481. 
 
 8 Murch v. Concord R. R. Corp., 9 Foster, 9. 
 
490 LIABILITY OF COMPANY 
 
 of action against it, where, after carrying him to an 
 intermediate point on its route, it makes no arrange- 
 ments for carrying him thence to his destination. 1 
 The company is under a public duty to act up to its 
 professions as a common carrier of passengers, and 
 is liable in damages to a party immediately injured 
 by its neglect thereof. Thus, if it professes by its 
 published advertisement to carry passengers to cer- 
 tain places, by trains starting at a certain time, when 
 in fact no such trains start at or near those times, 
 it is liable for the damages immediately sustained 
 by a party who, relying on the false representation 
 in the advertisement, knowingly made by the com- 
 pany, proceeds to take the train so advertised. 2 
 
 Duty op passengers to conform to the Reason- 
 able Regulations of the company. — The company 
 has the power to make reasonable regulations for 
 the conduct of passengers while in its trains or 
 stations, and may forcibly remove them therefrom, 
 using no unnecessary violence, if they persist in dis- 
 obeying them, without itself or its servants being 
 made civilly or criminally liable. 8 
 
 1 Hawcroft v. Great N R. Co., 8 Eng. L. and Eq. 362. It seems that, for a 
 want of room in its vehicles to be a defence, the contract should have been 
 on that condition. 
 
 2 Denton v. Great N. R. Co., 5 Ellis & Bl. 860; 85 E. C. L. ; 34 Eng. L. 
 and Eq. 164. See Crocker v. New London W. and P. R. R. Co., 24 Conn. 
 262, 263. 
 
 3 Commonwealth „. Power, 1 Met. 596. See an abstract of this case 
 with the opinion of the court, ante, ch. x., pp. 249 — 252 ; Hall v. Power, 12 
 Met. 482; Merrihew v. Milwaukie and Mississippi R. R. Co. (Circuit Court 
 
AS COMMON CARRIER OF PASSENGERS. 491 
 
 The sale of a ticket to a passenger is a contract 
 to carry him according to the reasonable regulations 
 and usages of the company; and he is presumed also 
 to contract with reference to them. Thus, a rule 
 requiring passengers to give up their tickets in the 
 cars soon after starting and before completing their 
 journey, and to receive the checks of the conductor 
 in return, is a reasonable regulation, entering into 
 its contract to transport them. If the passenger 
 refuses to comply with it by delivering up his ticket, 
 he may be required to pay his fare in cash ; and if 
 he refuses to do either, he may be expelled from the 
 cars. If he leaves them without paying his fare in 
 cash or delivering his ticket, the company' may 
 recover of him the amount of his fare. 1 
 
 The company may, by its regulations refuse to 
 allow the purchaser of a through ticket, who leaves 
 at an intermediate station the train in which he 
 started, to take another subsequent train, and com- 
 plete his journey by virtue of the same ticket or a 
 conductor's check given to him in lieu thereof. 
 His leaving the train at an intermediate station was 
 an abandonment of his contract, unless the right was 
 reserved to go through in another train. If, there- 
 
 of Wisconsin, May Term, 1854), 5 Am. Law Reg. (April, 1857), p. 364. The 
 company may revoke a free pass which it has issued. Id. The reasonableness 
 of the regulation was held a question of fact for the jury, in State v. Overton, 
 4 Zabris. 435. 
 
 1 Northern R. R. Co. v. Page, 22 Barb. 130. In this case the passenger 
 had knowledge of the cuBtom; but his knowledge has been held in other 
 eases immaterial. Loring v. Aborn, 11 Law Rep. (Feb. 1849) 432, 4 Cush- 
 608; Cheney v. Boston and Maine R. R. Co. 11 Met. 121. 
 
492 LIABILITY OF COMPANY 
 
 fore, on resuming his journey, he refuses to pay his 
 fare from the station where he resumes it to his 
 destination, he may be expelled from the cars by 
 the servants of the company having charge of 
 them. 1 
 
 The company may enforce a regulation requiring 
 passengers who do not purchase their tickets before 
 entering the cars, to pay a higher fare than those 
 who purchase their tickets at its offices ; and a 
 passenger who does not purchase his ticket before 
 entering the cars, may be required to pay the 
 higher rate of fare, and on his refusal, may be 
 expelled from them by force with no unnecessary 
 violence. 2 
 
 It is competent for the company to make a regu- 
 lation requiring a passenger to show his ticket for 
 proper purposes, and to remove him from the cars 
 for refusing to comply with it. 8 
 
 Burden op Proof. — The proof of the mere fact 
 
 ' Cheney v. Boston and Maine R. R. Co. 11 Met. 121 ; State v. Overton, 4 
 Zabris. 435. The company will not be responsible for an unauthorized will- 
 ful injury inflicted by its servant in expelling a passenger from the cars. 
 Crocker v. New London, Willimantic, and Palmer R. R. Co. 24 Conn. 249. 
 
 2 Hilliard v. Goold, 33 New Hamp. (Supreme Ct., July T., 1856) 19 Law 
 Rep. (Oct. 1856), p. 343 ; Crocker v. New London, Willimantic, and Palmer 
 R. R. Co. 24 Conn. 249. In this last case, the passenger, not having procured 
 his ticket before entering the cars, was held bound to pay the higher rate, 
 notwithstanding the ticket-office was closed so that he could not purchase a 
 ticket which he sought to obtain at the office at a reasonable time before 
 the train started. 
 
 8 State v. Overton, 4 Zabris. 441 ; Willetts v. Buffalo and Rochester R. 
 R. Co. 14 Barb. 685 ; Hibbard v. N. Y. and Erie R. R. Co., N. Y. Court of 
 Appeals, June Term, 1851, not yet reported. 
 
AS COMMON CARRIER OF PASSENGERS. 493 
 
 of injury received by a passenger while riding in 
 the cars of the company, does not impose the bur- 
 den of proof on the company to show that it did 
 not arise from its negligence ; for it may have hap- 
 pened to him through the tortious act of some per- 
 son outside of the cars, or by some accident with 
 which the company could have no possible connec- 
 tion. But proof of the injury and of its nature 
 will generally develop circumstances from which 
 negligence is to be presumed. 1 
 
 It is well settled that proof of an injury, resulting 
 from a collision or overturuing of the cars, or the 
 breaking of the machinery, or any other accident 
 pertaining to the train while under the manage- 
 ment of the company's agents, is presumptive proof 
 of negligence, and imposes on the company the 
 burden of proving that it was chargeable with no 
 default, and that the injury happened from causes 
 against which no care or foresight could have pro- 
 vided. 2 
 
 Damages recoverable by an injured Pas- 
 senger. — The passenger who has been injured by 
 
 1 Holbrook v. Utica and Schenectady E. R. Co. 2 Kernan, 236. 
 
 2 Laing v. Colder, 8 Barr, 479; Galena and Chicago Union R. R. Co. v. 
 Yarwood, 17 111. 509; Hegeman v. Western R. R. Corp. 17 Barb. 353, 356; 
 Zemp v. W. and P. R. R. Co. 9 Rich. 84; Stokes v. Saltonstall, 13 Peters, 
 181 ; M'Kinney v. Neil, 1 M'Lean, 540 ; Steamboat New World v. King, 16 
 Howard, 477 ; Ware v. Gay, 11 Pick. 106 ; Stockton v. Frey, 4 Gill, 406 ; 
 2 Greenl. Ev. § 222. The law on this point seems unsettled in England. 
 Skinner u. London, &c, R. Co. 6 Exch. 787, 789 ; Carpue v. London and 
 Brighton R. Co. 6 Q. B. 747 ; 48 E. C. L. ; Perren v. Monmouthshire R. Co. 
 11 C. B. 855; 73 E. C. L. 
 
494 LIABILITY OF COMPACT 
 
 the negligence of the company's servants, is entitled 
 to full compensation for his injury. The jury in 
 estimating the damages may take into consideration 
 the loss of time and pecuniary expense consequent 
 thereupon, and also the bodily pain or any incurable 
 hurt. 1 Bodily pain and suffering are such necessary 
 damages that they need not be specially alleged in 
 the declaration. 2 It is a general rule that damages 
 can only be given for the direct and necessary results 
 of an injury. Such, as are speculative and contingent, 
 are not allowed. But this does not prevent the jury 
 from estimating future damages in the way of loss 
 of health and of time, disability of limbs so as to 
 prevent a party from pursuing his usual employ- 
 ment, bodily pain and suffering which are proved 
 by the evidence as reasonably certain to result from 
 the original injury. 8 Mental suffering, as fright 
 arising from the risk and peril, may be taken into 
 consideration where actual injury to the person has 
 been sustained. 4 Whether vindictive or exemplary 
 damages are recoverable in any case has been much 
 controverted. They are allowed by the current of 
 authorities in case of intentional or malicious 
 
 ' Laing v. Colder, 8 Barr, 479 ; Peck v. Neil, 3 M'Lean, 25 ; Morse v. 
 Auburn and Syracuse R. E. Co., 10 Barb. 621 ; Varillat v. Carollton R. R. 
 Co., 10 La. An. 88. 
 
 2 Curtiss v. Rochester and Syracuse R. R. Co., 20 Barb. 282. 
 
 8 Curtiss v. Rochester and Syracuse R. R. Co., 20 Barb. 282 ; Black v. 
 Carrollton R. R. Co., 10 La. An. 33. Where damages do not immediately 
 result from the injury, as where they arise from the number of the family 
 dependent on the plaintiff and consequent embarrassment, they must, if 
 recoverable at all, be specially alleged. Laing v. Colder, 8 Barr, il9. 
 
 * Canning v. Williamstown, 1 Cush. 451. 
 
AS COMMON CARRIER OF PASSENGERS. 495 
 
 injuries j 1 but injuries to the feelings are not to be 
 considered when the action is brought by a person 
 other than the injured party, or where there is no 
 intentional injury. 2 
 
 The verdict of the jury for the plaintiff will not 
 be set aside by the court on the application of the 
 company, on account of the amount of damages, 
 unless it is so excessive as to indicate partiality, pre- 
 judice, or passion, or some improper conduct. 8 
 
 Liability op the company for the Luggage of 
 Passengers. — Railroad companies, as common car- 
 riers of passengers and their luggage, are responsible 
 for the luggage in case of loss, except where it occurs 
 by the act of God or the public enemies. The price 
 for its carriage need not be paid in a distinct sum, 
 
 1 2 Parsons on Cont. 446-453. 
 
 " Black v. Carrollton R. R. Co., 10 La. An. 33 ; Varillat v. Same, 10 id. 
 88 ; Blake v. Midland R. Co., 10 Eng. L. and Eq. 43*7 ; Morse v. Auburn and 
 Syracuse R. R. Co., 10 Barb. 625. 
 
 a In Curtiss v. Syracuse and Rochester R. R. Co., 20 Barb. 282, a verdict 
 for $4,500 for an injury to one of the plaintiff's legs whereby he had been 
 incapacitated from labor most of the time for nearly two years, and the dis- 
 ability was likely to be permanent or long continued, was sustained. In 
 Hegeman v. Western R. R. Corp., 16 Barb. 353, $9,900 was awarded 
 where the plaintiff's hip was dislocated, and he was otherwise badly 
 and permanently injured, so as to make him a cripple for life, and 
 deprive him of the ability to support himself and family ; and the court 
 refused to set aside the verdict. In Zemp v. W. and M. R. R. Co., 9 Rich. 84, 
 the court refused to grant a new trial, on the application of the company, 
 where the damages were assessed by the jury at $10,000 for injuries to the 
 plaintiff's left leg which required its amputation, and for other serious 
 injuries to his right foot and ankle ; but a new trial does not appear to 
 have been moved on account of excessive damages. 
 
496 LIABILITY OF COMPANY 
 
 but is by usage included in the fare of the pas- 
 senger. 1 
 
 What may be included in Luggage. — The com- 
 pany should not be held liable further than it is 
 compensated; and, therefore, it is not responsible 
 for articles in a passenger's trunks which are not 
 properly included within the designation of luggage. 
 The passenger is entitled to a reasonable amount of 
 luggage, and to include in it such articles as are 
 necessary and convenient for personal use, and as it 
 is usual for persons traveling to take with them. 2 
 What amount and kind are reasonable must be 
 determined by the jury, under the instructions of the 
 court, by reference to the length and object of the 
 journey, the habits, tastes, and condition in life of 
 the passenger, whether he travels alone or with his 
 family, what it is necessary for a person in his situa- 
 tion to have along with him in his journey, and such 
 like circumstances. 8 
 
 Luggage does not include merchandise or samples 
 thereof, used by the passenger in making bargains.* 
 
 1 Orange Co. Bank v. Brown, 9 Wend. 86, 115; Camden and Amboy 
 E. E. Co., 13 id. 628 ; Hollister v. Nowlen, 19 id. 236 ; Powell v. Myers, 
 26 id. 591 ; Hawkins v. Hoffman, 6 Hill, 589 ; Dibble v. Brown, 12 Geo. 
 224; Jordan v. Fall Eiver E. E., 5 Cush. 72; Collins v. Boston and Maine 
 E. E., 10 id. 506; Camden and Amboy E. E. Co. a. Belknap, 21 Wend. 364. 
 Tor extra luggage, which is paid for as such, the company is liable as a 
 common carrier. Dibble v. Brown, 12 Geo. 224. 
 
 a Jordan v. Fall Eiver E. E., 5 Cush. 72. 
 
 8 Woods v. Devin, 13 111. 750 ; Dibble v. Brown, 12 Geo. 217. 
 
 4 Pardee v. Drew, 25 Wend. 495 ; HawkinB v. Hoffman, 6 Hill, 586 ; 
 Collins v. Boston and Maine E. E. Co., 10 Cush. 506 ; Dibble v. Brown, 
 12 Geo. 224; Great N. E. Co. i>. Shepherd, 9 Eng. L. and Eq. 477; 
 14 id. 367. 
 
AS COMMON CAEEIEE OE PASSENGEES. 497 
 
 Money honafide taken for traveling expenses and 
 personal use, to such a reasonable amount as a pru- 
 dent person would deem necessary and proper, may 
 be placed in the traveler's tmmk, for which the 
 company will be responsible as a common carrier ; 
 but it will not be responsible as such for money so 
 carried when intended for trade, investment, or 
 transportation. 1 A watch has been held proper to 
 be carried in a trunk as luggage. 2 So, also, reason- 
 able tools for a mechanic who is the passenger, 8 a 
 wife's jewelry, 4 a pocket pistol or a rifle. 6 It has 
 been considered that articles of amusement, as a gun, 
 fishing tackle, books, may be considered luggage. 6 
 But handcuffs and locks are not admitted as such. 7 
 
 1 Jordan v. Fall Biver E. E., 5 Cush. 69. In this ease, it was held that 
 if the sum carried exceeded the proper amount, the company would still be 
 liable for gross negligence, p. 74. In Weed v. Saratoga and Schenectady 
 E. E. Co., 19 Wend. 534, $285 were found to have been properly placed in a 
 trunk, where the passenger was a resident of New York city and had been 
 making collections in the western counties of the State. Bomar v. Maxwell, 
 9 Humph. 621 ; Johnson v. Stone, 10 id. 419. In Orange Co. Bank v. Brown, 
 9 Wend. 85, the sum of $11,250 in bank bills, which was being carried by the 
 passenger from one bank to another, was held not properly included in 
 luggage. See Doyle v. Kiser, 6 Ind. 242. In Hawkins v. Hoffman, 6 Hill, 
 589, it is doubted whether money for traveling expenses may be included. 
 
 3 Jones a.Voorhees, 10 Ohio, 145 ; contra, Bomar v. Maxwell, 9 Humph. 62. 
 
 8 Porter v. Hildebrand, 14 Penn. State, 129 ; Davis v. Cayuga and Sus- 
 quehanna E. E. Co., JO How. Pr. 330. 
 
 1 M'Gill v. Eowand, 3 Barr, 451 ; Brooke v. Pickwick, 4 Bing. 218. 
 
 5 Davis v. Cayuga and Susquehanna E. E. Co., 10 How. Pr. 330; Woods 
 ». Devin, 13 111. 746. 
 
 8 Hawkins v. Hoffman, 6 Hill, 589 ; Woods v. Devin, 13 111. 750. 
 
 ' Bomar v. Maxwell, 9 Humph. 621. 
 
 33 
 
498 liability of company 
 
 When the Liability of the company fob Lug- 
 gage Begins and Ends, — The responsibility of the 
 company for the passenger's luggage commences 
 when it has been received for carriage by its author- 
 ized servants, whether it has been put by them in 
 the baggage car or deposited in the office or ware- 
 house, awaiting the next conveyance, or otherwise 
 received according to its custom. 1 It is not respon- 
 sible for a loss of luggage which the passenger 
 retains in his own possession. 2 
 
 The delivery of the luggage, in order to charge, the 
 company, must be to a servant authorized to receive 
 it ; 3 and by its usage it may make the servant of 
 another company its own for that purpose. 4 The 
 responsibility of the company continues while the 
 luggage remains in the custody of its servants, and 
 until it is delivered to the passenger in the ordinary 
 mode. 6 It is bound at all events to deliver it safely, 
 and is liable for a wrong delivery by mistake, even 
 upon a forged order. 6 The liability of the company 
 
 1 Camden and Amboy R. R. Co. v. Belknap, 21 Wend. 354 ; Doyle v. 
 Kiser, 6 Ind. 242 ; Jordan v. Boston and Fall River R. R., 5 Cush. 69 ; Logan 
 v. Ponchar. R. R. Co. 11 Rob. (La.) 24; ante, cb. xvii. p. 425-434. 
 
 2 Tower v. Utiea R R. Co., 1 Hill, il ; Coben „. Frost, 2 Duer, 338 ; 
 Steamboat Crystal Palace v. Vanderpool, 16 B. Monroe, 302 ; ante, ch. xvii. 
 p. 429. 
 
 3 Blanchard v. Isaacs, 3 Barb. 388. 
 
 4 Jordan v. Fall River R. R., 5 Cush. 11. 
 
 ' Richards v. London, &c. R. Co. 1 C. B. 839 ; Butcher v. London and South- 
 western R. Co., 29 Eng. L. and Eq. 347; Midland R. Co. v. Bromley, 
 33 id. 235 ; ante, xvii. p. 448. 
 
 • Powell v. Myers, 26 Wend. 591; Hawkins v. Hoffman, 6 Hill, 588; 
 The Huntress, Davies, 82 ; ante, ch. xvii. pp. 458, 459. 
 
AS COMMON CARBIEE OE PASSENGEES. 499 
 
 as common carrier, ceases when the passenger has 
 had a reasonable opportunity after the arrival to 
 receive his luggage; and if it remains in its custody 
 after that, the company will b« liable only as an 
 ordinary bailee, for hire or gratuitously according 
 to the circumstances. 1 Whether the receipt of fare 
 and sale of a ticket to a place beyond the line of the 
 road makes the company liable for luggage beyond 
 its own, has already been fully considered. 2 
 
 Limitation oe liability foe luggage by Notice 
 oe Special Conteact. — The company, according to 
 the current of authorities, cannot, except in Penn- 
 sylvania and perhaps in Maine, divest itself of its 
 common-law liability by a general notice that all 
 luggage is at the risk of the owner ; but it may 
 impose reasonable conditions by means of a qualified 
 notice, — that it will not be responsible for luggage of 
 a certain kind and beyond a certain value or amount, 
 unless made known and paid for accordingly, — and 
 exempt itself from its stringent liability, for articles 
 of the excepted kind and value, unless the condition 
 is complied with. And by special contract, it may 
 discharge itself from liability except for the negli- 
 gence of its servants. 
 
 1 Powell v. Myers, 26 Wend. 591, See Goold v. Chapin, 10 Barb. 612 ; 
 Clendaniel v. Tuckerman, 17 id. 184; Young v. Smith, 3 Dana, 91 ; Smith 
 v. Nashua and Lowell R. R., 1 Foster, 86. 
 
 " Ante, ch. xvii. pp. 451—158; Weed v. Saratoga and Schenectady R. R. 
 Co., 19 Wend. 534; Hood v. N. Y. and N. H R. R. Co., 22 Conn. 1, 502; 
 Hart v. Rensselaer and Saratoga R. R. Co., 4 Selden, 37. 
 
500 LIABILITY OF COMPANY 
 
 But the notice, in order to impose conditions on 
 the passenger, must he clear and unambiguous, and 
 brought to his knowledge. If he cannot read the 
 English language, Se cannot be presumed to have 
 been informed of a notice in that language printed 
 on his ticket. And if the notice is printed on the 
 back of his ticket, and detached from what it is 
 material for him to know, there is no legal presump- 
 tion that at the time of receiving the ticket, and 
 before the train left the station, he had knowledge 
 of it. The subject of notices and special contracts 
 limiting the liability of a common carrier, has 
 already been fully discussed. 1 
 
 Lien on luggage fob Passenger's Fare. — The 
 company has a lien on the luggage of the passenger 
 for his fare, but not on his person. 2 It has, however, 
 no lien on the luggage against the rightful owner 
 where it has been delivered to it by a wrong-doer. 8 
 
 Burden of Proof in case of loss of luggage. — 
 The passenger having proved the delivery of his 
 luggage to the company and a loss, the burden of 
 proof is on it to show that it was lost or injured by 
 the act of God or the public enemies, or by causes 
 specially excepted in its contract with the passenger. 4 
 The possession by a passenger of a check, such as is 
 
 1 Ante, ch. xvii. pp. 415-424. 
 
 5 Wolf v. Somers, 2 Camp. 631 ; ante, ch. xvii. p. 459. 
 
 s Fitch v. Newberry, 1 Doug. (Mich.) 1 ; Robinaon v. Baker, 5 Cuah. 137. 
 
 4 Ante, ch. xvii. pr>. 467, 468. 
 
AS COMMON CARRIER OF PASSENGERS. 501 
 
 usually given by a railroad company for luggage 
 delivered to it, has been considered prima facie 
 evidence of the delivery of luggage to the company. 1 
 
 Testimony oe Passenger.— According to the com- 
 mon law, no man can be a witness in his own cause. 
 To this general rule, the relation of the common 
 carrier to the passenger furnishes an exception. 
 After the passenger has proved a delivery of his 
 trunk to the company and a non-delivery by it, he 
 is a competent witness to prove its contents and 
 value. This evidence, in the absence of any proof 
 of fraud or spoliation on the part of the company or 
 its servants, is admissible on the ground of necessity, 
 as no one but the passenger is, in most cases, likely 
 to be acquainted with the contents. 2 It is held 
 inadmissible in Massachusetts and South Carolina. 8 
 In Massachusetts, it is admissible by a statute en- 
 acted since the decision. 
 
 The wife of the passenger has also been admitted 
 to testify in his behalf, where his testimony would 
 be admissible, to prove the contents of his trunk. 4 
 
 ' Dill v. S. C. R. R. Co., 7 Rich. 158 ; Davis v. Cayuga and Susquehanna 
 R. R. Co., 10 How. Pr. 330. 
 
 3 Clark v. Spence, 10 Watts, 335 ; Whitesell v. Crane, 8 W. <& S. 369 ; 
 Span- v. Wellman, 11 Missouri, 230; Doyle v. Kiser, 6 Ind, 242; Herman v. 
 Drinkwater, 1 Greenl. 27 ; 1 Greenl. Ev. § 348; Great N. R. Co. ■«. Shep- 
 herd, 9 Eng. L. and Eq. 480, note. 
 
 ' Snow v. Eastern R. R. Co., 12 Met. 44; Dill v. S. C R. R. Co., 
 7 Rich. 158. See Garvy v. Camden and Amboy R. R. Co. (Common Pleas 
 Court of City and County of New York, Jan. Term, 1857), 19 Law Rep. 
 (April, 1857) p. 687. 
 
 * M'Gill v. Rowand, 3 Barr, 461 ; Mad River and Lake Erie R. R. Co. v. 
 Fulton, 20 Ohio, 318. 
 
502 LIABILITY AS CARRIER OF PASSENGERS. 
 
 The admission of this kind of evidence is, however, 
 confined to the necessity of the case, and not allowed 
 to prove the delivery of articles not properly 
 luggage. 1 
 
 A more full discussion of the liability of the com- 
 pany for the luggage of passengers is unnecessary 
 here, as the principles which determine it are devel- 
 oped in the preceding chapter on the liability of the 
 company as a common carrier of goods ; to which 
 the reader is referred. 
 
 ' Mad River and Lake Erie R. R. Co. v. Fulton, 20 Ohio, 318 ; Doyle v. 
 Kiser, 6 Ind. 242 ; Johnson v. Stone, 11 JInmph. 419 ; Pudor v. Boston and 
 Maine R. R. Co., 26 Maine, 458; see Bingham v. Rogers, 6 W. & S. 495. 
 
REMEDIES. 503 
 
 CHAPTER XIX. 
 
 REMEDIES. 
 
 The ordinary remedies in favor of and against 
 other classes of corporations, may be pursued by and 
 against railroad companies. 1 The company, accord- 
 ing to the ordinary statute provisions, may be sued 
 in the State and county where it has its principal 
 place of business. 2 
 
 Consolidation- op Companies. — Where companies 
 are consolidated by act of the legislature, the act 
 usually provides that the new company shall have 
 all the rights and privileges of the original com- 
 panies and be subject to their liabilities. According 
 to the English authorities, the consolidated company 
 would be bound to discharge the obligations of the 
 original companies without such a special provision. 8 
 The admission of one of the companies before the 
 consolidation is, under an act with this provision 
 binding on the consolidated company in matters 
 
 1 See Grant on Corporations, 274-295. As to an action against a foreign 
 railroad corporation in a State where it carries on its business, see Austin v. 
 N. Y. and Erie R. R. Co., 1 Dutcher, 881. 
 
 a Androscoggin and Kennebec R. R. Co. v. Stevens, 28 Maine, 434 ■ see 
 notes to 1 Am. Rail. Cas. 142, 143. 
 
 * See cases cited in 1 Am. Rail. Cas. 96, notes. 
 
504 REMEDIES. 
 
 where, without the consolidation, the original com- 
 pany would have been liable. 1 
 
 An act consolidating different railroad companies, 
 and providing that the new company thus formed 
 shall be entitled to all the powers and privileges 
 belonging to the original companies, has the effect 
 of conferring on the new company the privileges 
 possessed by either of the companies, to the extent 
 of the road they each occupied before the union. 2 
 
 Enforcement of Subscriptions. — The remedies 
 of the company against delinquent subscribers to its 
 capital stock, have been fully discussed in a preceding 
 chapter. 8 , 
 
 Jurisdiction of Federal Courts. — A railroad 
 corporation is a citizen within the meaning of the 
 clause of the U. S. Constitution,. which gives juris- 
 diction to the courts of the United States over 
 " controversies between citizens of different States." 
 The citizen of one State can sue in those courts a 
 corporation which is created by and transacts its 
 business in another State, although some of its 
 members are not citizens of the State in which the 
 suit is brought. 4 The circuit court for one district 
 
 1 Phil., Wil. and Bait. R. R. Co. v. Howard, IS Howard, 307. 
 
 2 Phil., and Wil. R. R. Co. v. Maryland, 10 Howard, 376. 
 » Ch. v., p. 100-108. 
 
 * Louisyille R. R. Co. v. Letson, 2 Howard, 49*7 ; Marshall v. Baltimore 
 and Ohio R. R. Co., 16 id. 314; Works v. Junction R. R. Co., 6 M'Lean, 426. 
 In Wheedon v. Camden and Amboy R. R. Co. (Supreme Court of Penn., 
 Jan. 1857), Am. Law Reg. March, 1857, p. 296, it is held that a corporation 
 
REMEDIES. 505 
 
 has no jurisdiction over controversies between rail- 
 road companies, where the subject-matter is local 
 and lies beyond the limits of the district. Nor will 
 it take jurisdiction in equity, where another company 
 is vitally interested in the suit and is not made a 
 party thereto. 1 
 
 Form of Action. — As already noticed, an action 
 on the case is the proper remedy against the company 
 for injuries arising from the negligent acts of its 
 agents while acting in the course of its employment. 2 
 
 Penalties and Prosecutions by Indictment. — 
 The company may be subjected to penalties or to 
 an indictment, for a violation of a public duty. 8 
 
 Assessment or Damages to Land-owner. — A stat- 
 ute remedy, as elsewhere stated, is usually provided 
 for the assessment of damages to a land-owner whose 
 property is injured by the construction of the road; 
 and this remedy, when so provided, is exclusive of 
 
 is not per se a citizen within the meaning of the U. S. Constitution ; but 
 where it sues or is sued, its governing officers, as its president and directors, 
 are the substantial party ; and if they are citizens of the State which created 
 the corporation, and the other party is the citizen of some other State, the 
 federal courts have jurisdiction. 
 
 1 Northern Indiana R. R. Co. v. Mich. Central R. R. Co., 15 How. 233. 
 
 • Phil. &c. R. R. Co. v. Wilts, 4 Whart. 143 ; 111. Central R. R. Co. v. 
 Reedy, 17 111. 580 ; Thames Steamboat Co. v. Housatonic R. R. Co., 24 Conn. 
 40 ; Crocker v. New London, Willimantic and Palmer R. R. Co., id. 249 ; 
 Sharrod v. London and N. W. R. Co., 4 Eng. L. and Eq. 401. See Vt. Cent. 
 R. R. Co. v. Sabin, 25 Vt. 871 ; ante, ch. x. p. 234; as to action of trover for 
 loss of goods, see ante, eh. xvii., p. 467. 
 
 s Ch. x. pp. 231, 232; Grant on Corporations, 283. 
 
506 REMEDIES. 
 
 common-law remedies. 1 The manner of proceeding 
 to enforce it, is pointed out by the statute. An 
 appeal is often given from the award of the commis- 
 sioners to a sheriff's jury, the manner of applying 
 for and summoning which is also prescribed. 2 
 
 Mandamus. — The writ of mandamus lies to compel 
 the company or its officers to perform the duties 
 imposed on them by law, which the party prosecu- 
 ting the writ has a right to require to be done> and 
 for which he has no other suitable and adequate 
 remedy. 3 Thus it lies to compel the company to 
 build or complete a road, which it is by law bound 
 to build or complete. 4 It lies to compel the company 
 to perform its duty, in restoring highways and 
 turnpikes crossed by it to a proper condition for 
 traveling. 5 It lies to compel the company to erect 
 and maintain bridges over a highway or navigable 
 streams, where it is bound by law to erect and main- 
 
 1 Ante, ch. viii. p. 166-169, oh. x. p. 223-231. 
 
 2 Carpenter v. County Commissioners of Bristol, 21 Pick. 258 ; Wyman v. 
 Lexington and West Cambridge R. R. Co., 13 Met. 316 ; Taylor v. County 
 Commissioners of Plymouth, 13 id. 449 ; Porter v. County Commissioners of 
 Norfolk, 13 id. 479; Pittsfield and North Adams R. R. Corp. v. Foster, 
 1 Cush. 480; Walker v. Boston and Maine R. R. Co., 3 Cush. 1 ; Common- 
 wealth v. Boston and Maine R. R. Co., 3 Cush. 25 ; Fltchburg R. R. Co. v. 
 Boston and Maine R. R. Co., 3 id. 68 ; Meachamr v. Fitehburg R. R. Co., 4 id. 
 291 ; Gold v. Vt. 'Central R. R. Co., 19 Vt. 478. 
 
 8 Angell & Ames on Corp., ch. xx. ; Grant on Corp., 270—274. 
 
 1 Whitemarsh v. Phil., Ger. and Norristown R. R. Co., 8 W. & S. 365 ; 
 Regina v. Eastern Cos. R. Co., 2 Per. & Dav. 648 ; York and North Midland 
 R. Co. v. Regina, 18 Eng. L. and Eq. 199; 16 id. 299. 
 
 6 Regina v. Birmingham and Gloucester R. Co., 2 Q. B. 47 ; S. C. 42 E. 
 C. L. 665 ; Same v. Manchester and Leeds R. Co., 3 0, B. 528 ; S. C. 43 E. 
 C. L. 851. 
 
REMEDIES. 50"7 
 
 tain them. 1 This writ may be issued at the suit of 
 the company against the officers of municipal cor- 
 porations, to compel them to perform the duties 
 imposed on them by statute, in making subscriptions 
 to its stock, or to take the initiatory proceedings 
 therefor which the law has required. 2 
 
 The writ of mandamus is the proper remedy for 
 the company or the individual owner to compel 
 commissioners, appointed by statute to assess dam- 
 ages to land-owners for the land taken by the 
 company, to perform the duty, or to compel an 
 inferior tribunal, whose duty "it is by statute to 
 appoint such commissioners, to make the appoint- 
 ment. If the duty be ministerial, the writ directs 
 .the specific act to be performed. If judicial, it 
 directs such officers to exercise their official discre- 
 tion and judgment. 8 
 
 Scire Facias and Quo Warranto. — The pro- 
 ceeding against a corporation for usurpation of a 
 franchise or for nonuser and misuser of a franchise, 
 is by scire facias, or an information in the nature 
 of a quo warranto, at the instance and on behalf of 
 
 1 Cambridge v. Somerville and Charlestown Branch E. R. Co., 7 Met. 70 ; 
 State v. Graham, 3*7 Maine, 461 ; State v. N. E. R. R. Co., 9 Rich. 247. 
 
 Q C. W. and L. R. R. Co. v. Commissioners of Clinton Co., 1 Ohio State, 
 77; Justices of Clarke v. P. W. and K. River Turnpike Co., 11 B. Monroe, 
 164; Somerville and Nashville R. R. Co. v. County Court of Davidson, 
 1 Sneed (Tenn.), 637. 
 
 3 Carpenter v. County Commissioners of Bristol, 21 Pick. 258 ; Dodge v. 
 County Commissioners of Essex, S Met. 380 ; 111. Central R. R. Co. v. Rucker, 
 14 111. 363 ; Chicago B. and Q. R. R. Co. v. Wilson, 17 id. 128. 
 
508 REMEDIES. 
 
 the government. 1 But before a corporation can be 
 deemed dissolved by reason of any misuser or non- 
 user of its franchises, such misuser or nonuser must 
 be judicially determined and declared, in a direct 
 proceeding instituted for that purpose. 2 A cause 
 of forfeiture, which has not been so declared, cannot 
 be taken advantage of collaterally. 8 As the State 
 can alone insist on a forfeiture, it can waive the 
 same. 4 The power to repeal the charter may be 
 reserved in it, either absolutely or on a certain 
 event ; and a forfeiture may then be declared by 
 the legislature, without a resort to the judiciary. 5 
 
 m 
 
 Equitable Eemedies. — Equity has jurisdiction 
 over a corporation at the suit of a stockholder, to 
 restrain by injunction its officers from embarking in 
 projects unauthorized by its charter, or to prevent 
 a clear misappropriation of funds, resulting in the 
 diminution of his dividends and the value of his 
 shares, where the acts contemplated would amount 
 
 1 Angell & Ames, Corp. oh. xxi. xxii. ; 2 Kent, Com. 313 ; Grant on 
 Corporations, 295-306 ; People v. Eensselaer and Saratoga R. K. Co. 15 
 Wend. 113; Commonwealth •«. Tenth Mass. Turnpike Corp. 25 Cush. 509; 
 State v. Boston, Concord, and Montreal R. R. Corp. 25 Vt. 433. 
 
 ' 2 Kent, Com. 312 ; Enfield Toll Bridge Co. v. Conn. R. R. Co. 7 Conn. 46. 
 
 3 Angell & Ames, Corp. ch. xxii. § 777; 2 Kent, Com. 312; Canal Co. 
 v. R. R. Co. 4 Gill. <fe J., 1 ; Hamilton v. Annapolis and Elk Ridge R. R. Co. 
 1 Maryland Ch. Dee. 107 ; Harrison «. Lexington and Ohio R. R. Co. 9 B. 
 Monroe, 470. 
 
 4 People v. Mississippi and Atlantic R. R. Co. 14 HL 440; Angell & 
 Ames on Corp. ch. xxii. § 777. 
 
 * Erie and N. E. R. R. Co. v. Casey, 26 Penn. State, 287 ; ante, ch. iii. pp. 
 36-39. 
 
REMEDIES. 509 
 
 to a breach of trust. 1 An injunction will not, 
 however, be issued where the acts sought to be 
 enjoined are in direct furtherance of the original 
 purpose of the charter, or where the stockholder 
 applying for it has been guilty of laches in the 
 assertion of his right, and neglected to seek the 
 appropriate remedy until great public interests were 
 concerned. 2 
 
 The company may be restrained by injunction 
 from committing great and irreparable damage to 
 private property without proper authority, as where 
 it proceeds to the construction of its road without 
 first making a tender or payment of damages to the 
 land-owner, as required by law. 8 
 
 An injunction will be granted* against a nuisance, 
 
 1 Ante, ch. v. pp. 85-89; Kean v. Johnson and Central E. R. Co. 1 
 Stockton, Ch. 401 ; Stevens v. Rut. and Bur. R. R. Co. 1 Am. Law Reg. 154; 
 Chapman v. Mad River and Lake Erie R. R. Co. 6 Ohio State, 119; Balti- 
 more and Ohio R. R. Co. v. City of Wheeling, 13 Grattan, 40 ; Dodge v. 
 Woolsey, 18 How. 331 ; Ware -a. Grand June. Water R. Co. 2 Russ. & 
 MyL 470 ; Cunliffe v. Manchester and Bolton R. Co. id. 481 ; Bagshaw 
 v. Eastern Cos. R. Co. 7 Hare, 114 ; Coleman v. Same, 10 Beavan, 1 ; Be- 
 man v. Rufford, 6 Eng. L. and Eq. 106 ; Great W. R. Co. v. Rushout, 10 id. 
 72 ; Winch v. Birkenhead, <fec, R. Co. 13 id. 506; Ffooks v. London and S. 
 W. R. Co. 19 id. 7 ; Grant on Corporations, 290. The) jurisdiction of equity 
 to restrain a company in such a case at the suit of a stockholder, has been 
 denied in Rhode Island, although it is still an open question. Hodges v. 
 New England Screw Co. 1 Rhode Ib. 312 ; S. C. 3 id. 9. 
 
 2 Chapman v. Mad River and Lake Erie R. R. Co., 6 Ohio State, 120 ; 
 Baltimore and Ohio R. R. Co. v. City of Wheeling, 13 Grattan, 40. 
 
 " Ross v. Elizabethtown and Somerville R. R. Co., 1 Green, Ch. 422 ; 
 Browning v. Camden and Woodbury R. R. Co., 3 id. 47 ; Bonaparte v. Cam- 
 den and Amboy R. R. Co., 1 Baldwin, 205 ; Jorden v. Phil., Wil. and Bait. 
 R. R. Co., 3 Whart. 502; Walker v. Mad River and Lake Erie R. R. Co., 
 8 Ohio, 38; Chapman v. Same, 6 Ohio State, 119; Hudson and Delaware 
 Canal Co. v. T$. Y. and Erie R. R. Co., 9 Paige, 323 ; Bird v. W. and M. R. 
 E. Co., 8 Eich. Eq. 46. 
 
510 EEMEDIES. 
 
 which is clearly such, created by the company with- 
 out authority, at the suit of a party suffering special 
 damage. 1 
 
 The company may be proceeded against in equity 
 in matters of frand, where equity would have juris- 
 diction against an individual. 2 
 
 Equitable bemedles op Creditobs. — The credi- 
 tors of an insolvent railroad company may have 
 their claims against it adjusted in equity, and the 
 debts due to the corporation and the amount of the 
 subscriptions not paid in subjected to their satis- 
 faction. 8 
 
 Pebsonal Liability oe Stockholdebs. — The act 
 of incorporation in some cases makes the stock- 
 holders personally liable for the debts of the 
 company ; but this liability has been construed as 
 confined to debts created during the period in 
 which the stockholder was a member of the com- 
 pany. Such is the construction which is placed 
 upon the act of New Hampshire. 4 
 
 1 Mohawk Bridge Co. v. Uticaand Schenectady B. B. Co., 6 Paige, 654; 
 Newark Plank Boad Co. -o. Elmer, 1 Stockton, Ch. 754; Attorney-General i>. 
 Hudson River B. B. Co., 1 id. 526. See Davis v. Sharpe, 2 Duer, 663; 3 id. 
 119; since overruled by the Court of Appeals; ante, ch. viii. p. 182, note. 
 
 a Story v. Norwich and Worcester B. B. Co., 24 Conn. 94; Herrick v. 
 Belknap and Vt. Central E. E. Co., 27 Vt. 673. 
 
 8 Allen v. Montgomery E. E. Co., 11 Ala. 437; Mevitt v. Bank of Port 
 Gibson, 6 Sm. & Mars. 513 ; Hightower v. Thornton, 8 Geo. 486 ; Macon v. 
 Western E. E. Co. ■». Parker, 9 id. 877 ; see Mann v. Pentz, 2 Sandf. Ch. 257 ; 
 Mann ti. Currie, 2 Barb. 294; Mann v. Cooke, 20 Conn. 178. 
 
 ' Chesley v. Pierce, 32 N". H. 888. The authorities on this point are 
 conflicting. See Curtis v. Harlow, 12 Met. 8; Moss v. Oakley, 2 Hill, 265; 
 Allen v. Sewall, 2 Wend. 327 ; Southmayd v. Buss, 3 Conn. 62 ; Middletown 
 Bank v. Magill, 6 id. 28 ; Deming v. Bull, 10 id. 409. 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 511 
 
 CHAPTER XX. 
 
 mortgages op property and franchises. 
 
 Capacity of the company to Mortgage its road 
 and property. — The validity of the mortgages by 
 railroad companies of their personal property, or of 
 their real property which is disconnected from their 
 road, results from the power of corporations to dis- 
 pose of their property, and has not been contested. 
 The mortgages of their franchises and roads, so far 
 as they have hitherto been finally passed upon in this 
 country, were either authorized or ratified by the 
 legislature, and when so authorized or ratified, their 
 validity is unquestionable. 1 
 
 1 In Pierce i>. Emery, 32 N. H. 486, the mortgage -was expressly author- 
 ized. In Hall v. Sullivan R. R. Co. (U. S. Circuit Court for the district of 
 New Hampshire), the mortgage was subsequently recognized by statute as 
 valid ; and in Shaw et al., trustees, v. Norfolk County R. R. Co. (Supreme 
 Court of Mass., Nov. Term, 1855), to be reported in 5th vol. of Gray's Re- 
 ports, the mortgage had been expressly confirmed by statute. In this case, 
 a bill in equity was brought by the trustees under a mortgage by the com- 
 pany of its franchise and property, praying for the conditional judgment 
 provided by the statute of Mass. in the case of the foreclosure of mortgages, 
 and for possession of the property mortgaged, and for general relief. A de- 
 cree was made by the court for immediate possession of the mortgaged prop- 
 erty to be given to the complainants. An act of the legislature had con- 
 firmed the mortgage, but it seems to have been the impression of the court 
 that without such an act the mortgagees might have enforced a mortgage of 
 the franchise. In the use of the term franchise, it is probable that the 
 
512 MORTGAGES OF PEOPEETY AND FEANCHISES. 
 
 In England, the assignment of the right to oper- 
 ate the road by mortgage, or otherwise, has uni- 
 formly been held to be beyond the power of the 
 company, and contrary to public policy, as has been 
 shown in a preceding chapter. 1 
 
 In this country there are as jet no positive adju- 
 dications in the courts . of last resort, on the power 
 of a railroad company, in the absence of a special 
 statute, to mortgage its road; and the author, in 
 examining the question, is aided only by judicial 
 
 court intended that of using the road, and not that of being a corporation. 
 {See post, p. 531, note, where the opinion ia given in full.) There is a news- 
 paper report published in the 4th volume of the Railroad Record (Cincin- 
 nati, Sept. 25th, 1856), of the case of Grinnell et ah. trustees of the Sandusky, 
 Mansfield and Newark R. R. Co., before Fitch, J., of the Ohio Common 
 Pleas Court, Erie County, in which the following points are said to have 
 been held : 
 
 1. That a railroad company, authorized to borrow money for the con- 
 struction of its road, has, as an incident to that power, and without an express 
 grant in its charter, the power to secure such loan by a mortgage. 
 
 2. That a mortgage of the road and its income is, in effect, a mortgage 
 also of the franchises of the company, and upon a sale of the road under the 
 mortgage, the franchise will pass to the purchasers. 
 
 3 . That where two or more railroad companies become united, and con- 
 solidated into one company, under the statutes of Ohio, and such original 
 companies had, prior to the consolidation, given mortgages on their respect- 
 ive roads, the rights and liens of the respective mortgages must be respected 
 and preserved, due regard being had to the consolidation. 
 
 4. That after such consolidation, no one of the mortgages upon the ori- 
 ginal roads can be enforced by a separate sale of its original line, but all 
 such original mortgages must be enforced by a sale of the consolidated roads, 
 and the respective liens on the parts be adjusted in the distribution of the 
 proceeds of the whole upon the report of the master, so as to give each mort- 
 gage so much of the proceeds as may be estimated to arise from the part 
 covered by its lien. 
 
 1 See ante, ch. xvi. pp. 397-403, where the English cases are fully cited. 
 They have been incidentally approved in this country in Troy and Rutland 
 R. R. Co. v. Kerr, 17 Barb. 601 ; Nelson v. Vt and Canada R. R. Co. 26 Vt 
 7 1*7 ; York and Maryland R. R. Co. v. WinanB, 17 How. 80, 39. 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 513 
 
 dicta and the principles of the law governing anal- 
 ogous cases. 
 
 Corporations have the incidental power to dispose 
 of all their property, real and personal, unless spe- 
 cially restrained by statute, either expressly or by 
 just implication. They may sell it absolutely or 
 convey a less estate therein than a fee simple, as by 
 a lease. They may exercise this power, unless 
 restrained as aforesaid, to discharge or secure a debt, 
 which they may lawfully contract by a mortgage to 
 secure it, or an assignment in trust for the benefit of 
 creditors. 1 
 
 Upon this principle, the presumption is in favor 
 of the power of the company to dispose of its prop- 
 erty in its road for the payment of its debts, or to 
 secure them by a mortgage of the road. It may 
 not have a fee simple absolute in the land which 
 has been condemned for the purpose of the road, so 
 as to enable it to use the same for any other purpose 
 than a public highway. Even where the charter or 
 statute authorizing it to appropriate the land, in 
 terms vests a fee simple in the company, it may be 
 construed to grant nothing more than the right to 
 use the land for such a highway, in the nature of a 
 base or determinable fee. 2 But the right to use the 
 
 1 Comyn's Dig., tit. Franchise, F. 18 ; Angell & Ames on Corp. ch. v. 
 §§ 187, 191 ; 2 Kent's Com. 281 ; Jackson v. Brown, 5 Wend. 590 ; Barry v. 
 Merchant's Exchange Co. 1 Sandf. Ch. 280 ; De Ruyter v. St. Peter's Church, 
 S Comst. 238; Gordon v. Preston, 1 Watts, 385; Enders «/. Board of Public 
 Works, 1 Gratt. 364; Allen v. Montgomery R. R. Co. 11 Ala. 437, 454; 
 M. C. P. R. R- Co. v. Talman, 15 id. 472, 491 ; Parr v. Roe, 1 Q. B. 700. 
 
 '' Hooker v. Utica and Minden Turnpike Co. 12 Wend. 371; People v. 
 White, 11 Barb. 26; ante, ch. viii. p. 160. 
 
 34 
 
514 MORTGAGES OF PROPERTY AND FRANCHISES. 
 
 land so condemned, as a common carrier of goods 
 and persons, is valuable as a source of revenue, and 
 has the incidents of property. It is the private prop- 
 erty of the company, which the legislature would 
 have no power, in the exercise of the right of eminent 
 domain, to appropriate to other public uses without 
 making compensation to the company. 1 This right 
 of the company, being, then, in its nature property, 
 would seem to be liable to be subjected to the pay- 
 ment of its debts, either by a voluntary disposition, 
 or a compulsory process of the law. 
 
 If the company cannot mortgage its property in 
 its road for the payment of its debts, the disability 
 must arise from an express prohibition in the charter 
 which would undoubtedly create it, or in the absence 
 of this, from an implied prohibition in the public 
 policy of the state, or the nature of the right itself 
 which renders it not transferable. < 
 
 In England, the transfer of the management of 
 the road is held to be contrary to public policy, and, 
 in the absence of a special grant, beyond the power 
 of the company owning it. 2 In this country, the 
 view has been urged by counsel, and received recog- 
 nition in some judicial dicta, that, as franchises are 
 privileges conferred by the sovereign power and 
 involve the duty on the part of the grantee to 
 exercise them for the public benefit, it cannot de- 
 prive itself of the power to perform that duty by 
 alienating the right to operate its road as a common 
 
 1 Ante, ch. iii. pp. 21-35 ; ch. viii. pp. 151-160, 172, 173. 
 3 Ante, ch. rci. pp. S^-IOS. 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 515 
 
 carrier, which is a means necessary for discharging 
 the duty. 1 This doctrine has been also held in rela- 
 tion to turnpike and canal companies. 2 
 
 1 28 Am. Jurist (Oct. 1844), 92; Pierce v. Emery, 32 N. H. 504, 507. 
 Perley, C. J. : " Railroads, by the law of this State, are public corporations, 
 so far as to be subject in many respects to general legislation and the control 
 of the public authorities. They are created to answer a public object, and 
 are bound to the State for the performance of their public duty. They can 
 do no act which would amount to a renunciation of their duty to the public, 
 or which would directly and necessarily disable them from performing it. 
 They cannot convey away their franchise and corporate rights, nor perhaps 
 the track and right of way which they take and hold for the necessary use 
 of their road. 
 
 " But they may contract debtB ; may purchase on credit ; and we see 
 nothing in the nature of their business, or in their relation to the public, 
 which should prevent them from making a valid mortgage of their personal 
 property, not affixed to the road, though used in the operation of it. Instead 
 of disabling the road from performing its public duty, a mortgage might 
 assist in doing it, in the same way that other corporations or individuals are 
 aided in carrying on their business by mortgages of their property. 
 * e ***** * 
 
 " The grant of a corporation is a contract between the State granting it 
 and the grantees. It is peculiarly and emphatically so in the case of rail- 
 road corporations, which are created upon public considerations, and clothed 
 with extensive and extraordinary powers, for the purpose of enabling them 
 to accomplish the public object contemplated in the grant. The members 
 and stockholders have private rights ; but the corporations are also bound 
 to the discharge of their public duties, and cannot, without the aid of special 
 legislation, disable themselves from performing their duty to the public by 
 alienating or transferring their corporate rights and franchises. They may 
 sell or mortgage their personal property, but they cannot sell or mortgage 
 with it the right to manage and control the road, nor any other corporate 
 right or franchise. The King v. The Severn and Wye R. Co., 2 B. & Aid. , 
 646 ; Reg. c The Eastern Counties R., 10 Adol. & Ellis, 531 ; Reg. v. South 
 Wales R. Co., 14 Adol. & Ellis (N. S.), 902 ; Clark v. Washington, 12 Wheaton, 
 46, 54 ; Winchester and Lexington Turnpike R. Co. v. Vimont, 5 B. Monroe, 
 1 ; Arthur v. The Commercial and R. R. Bank, 9 S. & M. 394. 
 
 "If this corporation had authority to make a mortgage that should 
 convey the franchise and corporate rights, the power must be derived from 
 the special act." 
 
 2 Ammant v. New Alexandria and Pittsburg Turnpike, 13 S. & R. 210 ; 
 
516 MORTGAGES OF PROPERTY AND FRANCHISES. 
 
 The proposition, that a corporation cannot perform 
 acts as to its property which will disable it 'from 
 discharging its public duty, if admitted at all, must 
 be confined to a very limited operation ; so limited 
 as to make the soundness of the proposition itself 
 doubtful. The power of the company to sell all its 
 rolling stock, ears, engines, and other personal prop- 
 erty, cannot be questioned; and yet its exercise, 
 where it has not the funds to replace them, may 
 leave it unable to operate its road. It may, by a 
 course of conduct authorized by its charter, reduce 
 itself to a condition of hopeless bankruptcy, in 
 which it is unable to perform its public duty. Still, 
 the acts, by which the result was produced in each 
 case, were within its unquestioned capacity. 
 
 Another consideration, usually pressed against the 
 power of a railroad company to mortgage its road, 
 is, that its franchises are conferred 1 by grant from 
 the legislature on such persons as it selects in its 
 discretion, and, in the absence of a special power for 
 that purpose, they are not assignable to other per- 
 sons to whom it has not thus confided them. 
 
 This proposition may be found true of only a 
 certain class of franchises. The franchises of a cor- 
 poration may be various, some of them being such 
 as are peculiar to itself and derived only from the 
 sovereign power, and others being such as are pos- 
 sessed by individuals without any legislative grant. 
 In one sense, all its powers are franchises. 1 The 
 
 Susquehanna Canal Co. v. Bonham, 9 W. & S. 2*7 ; see Leedom v. Plymouth 
 R. R. Co., 5 id. 265. 
 
 1 State v. Boston, Concord, and Montreal R. R. Co. 25 Vt. 442. 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 51 7 
 
 franchise of being a corporation is a personal right 
 granted to certain individuals, to subsist as a body- 
 politic, with power of succession, and of acting in 
 many respects as a natural person, and in a manner 
 which is beyond their capacity without such a 
 special grant. The assignment of such a franchise 
 to other persons is like the creation of a new cor- 
 poration, which is an exclusive attribute of sove- 
 reign power. The control of its affairs may, by 
 means of assignments of the shares of the capital 
 stock by the members, pass into other hands ; but 
 the corporation as a whole cannot be transferred. 
 The privilege of being and acting as a railroad cor- 
 poration cannot, therefore, be assigned without a 
 special power for that purpose being conferred by 
 the legislature. 1 
 
 A railroad company has still other franchises 
 besides that of existing and acting as a corporation. 
 It may be, and usually is, empowered to take pri- 
 vate property necessary for its purposes, and to 
 build, own, and use a railroad, and to take tolls 
 from persons and goods carried over the same in its 
 vehicles. 
 
 Of these franchises, the power to take private 
 property upon making compensation, which is dele- 
 gated from the State in the exercise of its right of 
 eminent domain, being one of a high and peculiar 
 character, derived only from the sovereign power 
 upon express grant, limited in the time within 
 
 1 State v. Rives. 5 Iredell, 306 ; Arthur <,. Commercial and R. R. Bank 
 of Vicksburg, 9 Smedes & M. 431 ; Robins v. Embrey, 1 Smedes <fe M. Oh. 269. 
 
518 MORTGAGES OP PROPERTY AND FRANCHISES. 
 
 which and the objects for which it may be exer- 
 cised by the corporation, and subject to constitu- 
 tional restrictions, may be considered in its nature 
 not assignable. The power itself is, however, to be 
 distinguished from the property and rights acquired 
 by its exercise. 
 
 There are other franchises which are at common 
 law the subjects of sale and mortgage. Franchises 
 are enumerated in the accredited text books as the 
 subjects of sale and mortgage. 1 Thus, the privilege 
 of maintaining a ferry and taking tolls from persons 
 passing over it, granted by the State to an individ- 
 ual, is an assignable franchise. In many respects it 
 is quite similar to the franchise of operating a rail- 
 road as a common carrier of goods and passengers. 2 
 
 1 Com. Dig., tit. Grant, C ; Powell on Mort 11, b ; Coote on Mort.. 101 ; 
 1 Hilliard on Mort ch. 1, § 4. 
 
 2 Powell on Mort. 17, b ; Felton v. Deall, 22 Vt. 110 ; Phillips v. Bloom- 
 ington, 1 Greene (Iowa), 498; Fay, Petitioner, 15 Pick. 243; Trustees of 
 Maysville v. Boon, 1 J. J. Marsh. 221 ; M'Cauly v. Givens, 1 Dana, 261 ; 
 Biggs v. Ferrell, 12 Ireliell, 1, 4. Pearson, J., "It is suggested, a franchise 
 cannot be assigned. That may be true in regard to the franchise of being 
 a corporation, for corporations have a ' limited capacity,' and only such 
 rights and powers as are conferred by the charter. But there is no reason 
 why an individual who owns land with a franchise annexed, as a ferry or 
 market, may not transfer the land in fee, or for a less estate, and then the 
 franchise passes as an incident, like rent, which passes with the reversions 
 incident thereto.'' 
 
 Bowman v. Wathen, 2 M'Lean, 876, 393. M'Lean, J. : " It is insisted 
 that a license to keep a ferry is personal, and cannot be assigned. That 
 as the right of the defendant, Wathen, rests upon transfers from the original 
 grantees, and has no other foundation, it must be held invalid. 
 
 " In this respect, no difference is perceived between a ferry franchise, 
 the franchise of a toll-bridge, a turnpike or railroad, or any other franchise 
 of the same nature. Certain privileges are given by the State, and the 
 grantee becomes bound to afford the proposed public accommodation. It is 
 true, the grant is made in the one case to a private individual, and in the 
 others to corporations. But as it regards any matter of public confidence, 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 519 
 
 The privilege of maintaining a turnpike and taking 
 tolls from persons using the same, has been the sub- 
 ject of a lease, the validity of which does not appear 
 to have been contested. 1 A dock company, the 
 charter of which declared the dock to be a public 
 highway, has been held to have the power to mort- 
 gage its dock as well as its other property, although 
 the power was contested as conflicting with the 
 performance of its public duties. 2 
 
 it would seem to apply as strongly to the individuals incorporated, as to 
 the grantee of the ferry. 
 
 " But the grantee of the ferry has a right appurtenant to the soil, 
 which, by the law is made an indispensable pre-requisite to a ferry license. 
 Now, we have shown that the ownership of this right may be separated 
 from the ownership of the soil ; and if this may be conveyed by the 
 grantee before the ferry license is obtained, may it not be conveyed after- 
 wards 1 And in this conveyance may not the ferry grant be included ? 
 
 "The public can have no claim on the grantee beyond the requirements 
 of the law ; and it is immaterial whether these are fulfilled by the grantee 
 or his assignee. It is probable that the assignee gives a bond and security, 
 as the law requires, or indemnifies the grantee. There must be some settled 
 practice on this subject, which has been so sanctioned, as to become a rule 
 of property. However this may be, there would seem to be no doubt that 
 the ferry franchise, with all that belongs to it, may be taken by descent or 
 by conveyance, the same as other interests which pertain to the realty. 
 Where an office is conferred which implies personal confidence and a 
 capacity to discharge public duties, no assignment can be made of it. But 
 this has no analogy to the franchise in question." But see Lombard v. 
 Cheever, 3 Gilman, 469. 
 
 1 Jowitt v. Lewis, 4 Litt. 160. 
 
 2 Enders v. Board of Public Works, 1 Grattan, 364. In a suit brought 
 by a bridge company for tolls, it set up a want of power to make a 
 binding, release of them which it had executed ; Central Bridge Corp. 
 v. Bailey, 8 Cush. 319, 323. Fletcher, J., delivering the opinion of the 
 court sustaining the release, said, "This subject of tolls, therefore, is 
 clearly within the scope of the general powers of the corporation, in re- 
 gard to which they have a right to act and contract. There can be no 
 doubt, that parties making contracts for a release of the whole or a 
 
520 MORTGAGES OF PROPERTY AND FRANCHISES. 
 
 The franchise of building, owning and managing 
 a railroad, and taking tolls for the carriage of persons 
 and goods over the same, not being upon analogy 
 personal to the corporation to which it was granted, 
 would seem to be assignable, unless the transfer is 
 prohibited by the charter expressly or impliedly, or 
 by public policy deduced from the general course of 
 legislation on the same and similar subjects, or from 
 suggestions of the general convenience. 1 . 
 
 part of the tolls, would be bound by their contracts ; and the corporation 
 itself must be equally bound. 
 
 ******* 
 " The legislature, if it had thought proper, might hare restricted the 
 power of the corporation in regard to making such contracts, but not having 
 restricted it, the contracts must be binding, whatever may be their effect 
 upon the interests of the commonwealth or the towns. A contract with a 
 corporation may be binding on the parties, though it be an abuse of the 
 corporate powers, for which the corporation may be answerable to the 
 government which created it." 
 
 ' See State v. Eives, 5 Iredell, 297 ; Arthur v. Commercial and R. R. 
 Bank of Vicksburg, 9 Smedes & M. 394, 432 ; Hall et al., trustees, v. Sullivan 
 R. R. Co. (U. S. Circuit Court for the Dist. of New Hampshire), before 
 Curtis, J. The author has succeeded in procuring the opinion of this able 
 and accomplished jurist, overruling the demurrer, and discussing several 
 important points in relation to the mortgages made by railroad companies. 
 
 Curtis, J. : " This is a bill in equity brought by certain citizens of the 
 State of Massachusetts against the Sullivan Railroad Company, a corporation 
 created by a law of the State of New Hampshire, and against George Olcott, 
 a citizen of the last mentioned State. It is founded on a mortgage, a copy 
 of which is annexed to the bill, which purports to have been executed under 
 the corporate seal, pursuant to certain votes of the corporation which are 
 , therein recited, and this mortgage conveys unto the complainants as trustees, 
 ' the railroad and franchise of the said company in the towns of Walpole, 
 Charlestown, Claremont, and Cornish, in the county of Sullivan and State 
 of New Hampshire, as the same is now legally established, constructed, or 
 improved, or as the same may be at any time hereafter legally established, 
 constructed, and improved, from its junction with the Cheshire Railroad 
 Company to its junction with the Vermont Central Railroad Company, with 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 521 
 
 If the assignment is prohibited in the act of incor- 
 poration expressly, the will of the legislature thus 
 
 all the lands, buildings, and fixtures of every kind thereto belonging, 
 together with all the locomotive engines, passenger, freight, dirt, and hand 
 cars, and all the other personal property of the said company, as the same 
 now is in use by the said company or as the same may be hereafter changed 
 or surrendered by the said company,' Habendum to the said trustees ; and 
 ' Provided nevertheless, and the foregoing deed is made upon the following 
 trusts and conditions.' Then follow the trusts and conditions, which will 
 be more fully adverted to hereafter ; but it should be here stated that the 
 general purpose of the mortgage was to secure the payment of the interest 
 and principal of certain bonds issued by the corporation, the interest whereon 
 had become due before this bill was filed, and is unpaid. The bill prays, 
 1st, that the trustees may be put into possession of the railroad franchise 
 and property conveyed by the deed, and may be directed by the court in 
 its management and in the execution of their trust, and that the company 
 may be restrained from intermeddling therewith. 2nd. That an account 
 may be taken of what is due to bond-holders, and the company ordered to 
 pay the same by a fixed day, and in default thereof that the company may 
 be forever debarred and foreclosed from all equity of redemption of the 
 mortgaged property. 3d. That a receiver may be appointed for certain 
 purposes, which it is not necessary here to specify. 4th. That a sale may 
 be made of the franchise and property mortgaged. 6th. For relief gen- 
 erally ; under which last prayer the complainant's counsel, at the hearing, 
 asked for a foreclosure by sale, instead of a strict foreclosure as specifically 
 prayed for, provided the court should be of opinion that a foreclosure by 
 sale would be more equitable. 
 
 " The railroad corporation has demurred to the bill ; and I will now state 
 my opinion upon the several questions which have been argued, so far as 
 they are necessarily raised by the demurrer. 
 
 " The first is, whether the mortgage iB valid and competent to convey 
 what it purports to convey. The objection made by the respondents is, that 
 the grant by the State of the franchise to be a corporation, and to build, 
 own, and work a railroad, and take tolls thereon, is attended with an obli- 
 gation on the part of the company to exercise these franchises for the public 
 benefit ; that consequently the corporation cannot divest itself of its railroad 
 and all the other necessary means of discharging its public duty; and as 
 these franchises were confided to the particular political person, they can 
 be exercised by that person alone, and any attempt to delegate them to 
 others is inoperative and void, upon grounds of public policy. Many 
 authorities have been cited in support of this position, the principal of 
 which are, Winch v. The Railway Co., 13 Eng. L. and Eq. 506 ; S. G. R. Co. 
 
522 MORTGAGES OF PROPEETY AND FEANCHISES. 
 
 expressed is controlling. What will constitute an 
 implied restraint against the transfer, drawn from 
 
 ■a. S. G. E. R. Co., 19 Eng. L. and Eq. 513; Beman v. Rufford, 6 Eng. L. 
 and Eq. 106 ; The S. and B. R. Co. v. The L. and N. W. R. Co., 21 Eng. L. 
 and Eq. 319; Troy and Rut. R. R. Co. v. Kerr, 17 Barb. S.C. R 581; State 
 v. Rives, 5 Iredell's R. 297. 
 
 " These authorities are sufficient to show, that in England the law is as 
 the defendants assert it to be in New Hampshire. To a certain extent, it 
 needs no authority to show that the position must be wiell founded in New 
 Hampshire. Among the franchises of the company is that of being a body 
 politic, with rights of succession of members, and of acquiring, holding, and 
 conveying property and suing and being 6ued by a certain name. Such an 
 artificial being, only the law can create; and when created, it cannot transfer 
 its own existence into another body; nor can it enable natural persons to 
 act in its name, save as its agents, or as members of the corporation, acting 
 in conformity with the modes required or allowed by its charter. The 
 franchise to be a corporation is, therefore, not a subject of sale and transfer 
 unless the law by some positive provision has made it so, and pointed out 
 the modes in which such sale and transfer may be effected. But the fran- 
 chises to build, own, and manage a railroad, and to take tolls thereon, are 
 not necessarily corporate rights; they are capable of existing in and being 
 enjoyed by natural persons, and there is nothing in their nature inconsistent 
 with their being assignable. Peter v. Kendall, 6 B. & C. 703 ; Com. Dig., 
 Grant, C. 
 
 " Whether, when they have been granted to a corporation created for 
 the purpose of holding and using them, they may legally be mortgaged by 
 such corporation, in order to obtain means to carry out the purpose of its 
 existence, must depend upon the terms in which they are granted, or in the 
 absence of anything special in the grant itself, upon the intention of the 
 legislature, to be deduced. from the general purposes it had in view, the 
 means it intended to have employed to execute those purposes, and the 
 course of legislation on the same or similar subjects; or as it is sometimes 
 compendiously expressed, upon the public policy, of the State. There is 
 nothing in the particular terms of the grant of these franchises to the 
 Sullivan Railroad Corporation which expressly restrains their exercise to 
 that corporation alone. The question, whether they can be exercised by 
 any other person than the corporation, depending upon the public policy of 
 the State of New Hampshire, to be deduced from an examination not merely 
 of this charter, but of the general course of legislation of the State on this 
 and similar subjects, it is eminently proper that this court should, if possible, 
 follow and not precede the Supreme Court of New Hampshire in its conclu- 
 sions respecting this question. In the absence of any decision by that court, 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 523 
 
 particular provisions of the charter, its general 
 purposes and the means it has appointed for their 
 
 I should enter on an examination of it -with great reluctance. In the manu- 
 script opinion of the Supreme Court of New Hampshire in the case of Pierce 
 ■«. Emery, which has been produced at the bar, Mr. Chief Justice Perley has 
 stated some views on this question. If it were necessary for me in this case 
 to come to any conclusion concerning it, I should probably assent to the 
 views there expressed, though I do not understand the question whether a 
 corporation can mortgage its railroad and its franchise to own and manage 
 and take toll on it, came directly into decision in that case. But I do not 
 find myself under the necessity of deciding this question, because I am of 
 opinion that the legislature of the State of New Hampshire has so far recog- 
 niaed the validity of this mortgage, that it ia not now to be deemed invalid 
 as being contrary to the public policy of the State. On the 14th day of July, 
 1855, the legislature of New Hampshire passed an act, the title and first 
 two sections of which are as follows." 
 
 [The two acts were here quoted in full : the firBt, " for the purpose of ena- 
 bling the company to pay its debts, and thereby to have greater power and 
 means to provide for the public travel and transportation over its road," 
 authorizing it to issue new stock to a certain amount, and the holders of 
 bonds under the said mortgage, which is described by its date, to subscribe 
 for the said new stock and pay therefor with the said bonds under certain 
 restrictions ; and the second act, of the same date, exempting the trustees 
 under the mortgage from personal liability, except such as they should as- 
 sume by contract in ease it should become necessary for them to take pos- 
 session of the road, and to operate it for the benefit of the bondholders, and 
 they should actually take possession of and operate the same.] 
 
 " By the first of these acts the legislature recognize the existence of the 
 mortgage now in question, and confer on the corporation new powers to 
 enable it to pay the debts secured by the mortgage, and it is expressly 
 declared that this was done to enable the corporation to have greater power 
 and means to provide for the public travel and transportation over its rail- 
 road. By the second of these acts, not only the existence of the mortgage 
 and the power of the trustees to take possession of the railroad, and operate 
 it for the benefit of the bondholders are recognized, but the responsibility to 
 be incurred by the trustees in the exercise of these powers to take possession 
 of and operate the road, is regulated and limited. After the legislature had 
 thus granted to the corporation new powers to enable it the better to accom- 
 plish its duty to the public by paying off this mortgage, and have interposed 
 to facilitate the exercise of the powers of the trustees under the mortgage by 
 regulating and restricting the personal liabilities to be incurred by them in 
 the exercise -of these powers, it seems to be impossible to maintain that the 
 
524 MORTGAGES OF PEOPEETY AND EEANCHISES. 
 
 execution, is to be determined by the proper con- 
 struction of the charter itself. So far as public 
 
 mortgage itself is void, because contrary to the public policy of the State. 
 The -will of the legislature, while acting within the powers conferred by the 
 people of the State, constitutes the public policy of the State, and, bo far 
 from manifesting its will to have this mortgage void and inoperative, it has 
 interfered to help out its operation, and make it more easily available as a 
 security. I do not think a court of justice can undertake to decide that a 
 mortgage was contrary to the public policy of the State, after the legislature 
 has directly interposed to aid the mortgagees to act under it. I am, there- 
 fore, of opinion that this mortgage, so far as it purports to convey ..to the 
 trustees the tangible property of the company, and the rights to manage and 
 work the road, and take toll thereon, is not void as being contrary to the 
 public policy of the State. 
 
 " The next question I have considered is, whether the trustees are enti- 
 tled, upon the case made by the bill, to a decree of foreclosure, either by a 
 strict foreclosure, or by a sale.- It is insisted by the defendants that the 
 only mode of foreclosing this mortgage is by a sale in pursuance of the fourth 
 article ; and though it is not denied that this power of sale may be executed 
 under the direction of a court of equity, upon a bill framed for that purpose, 
 yet it is objected that this bill does not show that a ease exists for the exer- 
 cise of that power ; because it does not appear that the holders of two 
 thirds of the amount of the bonds have requested the trustees to sell. The 
 right to foreclose is incident to all mortgages save Welsh mortgages ; and 
 there is no ground for maintaining that this is a Welsh mortgage ; for the 
 conveyance is a collateral security for the bonds of the company, the inter- 
 est and principal of which are payable at fixed times, and the failure to pay 
 such principal or interest is a breach of the second express condition in the 
 deed. (Balfe v. Lord, 2 D. & W. 480.) 
 
 " Without undertaking to say that the parties may not restrict the right 
 of foreclosure, I consider it quite clear that the insertion of a power of sale 
 in a deed of mortgage neither deprives the mortgagee of his right to strict 
 foreclosure where such right would otherwise exist, nor prevents a court of 
 equity from foreclosing by a sale made under its direction, in cases where it 
 finds a strict foreclosure is not matter of absolute right on the part of the 
 mortgagee, and strict foreclosure would be inequitable. In Slade v. Rigg, 
 3 Hare, 35, Sir James Wigram, V. C, decreed a strict foreclosure, though the 
 deed contained a power of sale, and it was argued that the execution of that 
 power was the only remedy for the mortgagee. In Wayne v. Hanham, 4 
 Eng. L. and Eq. 14Y, the deed contained a power of sale. The mortgagee 
 brought a bill for a strict foreclosure. The mortgagor resisted, and insisted 
 that the mortgagee could only have a decree for a sale. Sir George Turner, 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 525 
 
 policy is made up of the general course of legislation 
 on the same and similar subjects, it is to be governed 
 
 V. C, reviewed the ease of Slade v. Bigg, approved it, and decreed a strict 
 foreclosure. These were mortgages of personalty, which increased the dif- 
 ficulty of ordering a strict foreclosure; but that, as well as the existence of 
 the power of sale, was held to be insufficient to confine the mortgagee to an 
 exercise of the power of sale contained in the deed. I think the true dis- 
 tinction is taken in Jenkin v. Eow, 11 Eng. L. and Eq. 29*7. It is between 
 deeds containing a mere trust for a sale to secure money advanced, and a 
 mortgage. The former must, of course, be executed as declared, and there 
 the remedy stops. But if the deed be a mortgage, the right to a foreclosure 
 arises from the nature of the security, and is entirely consistent with the 
 existence of another right, viz. : a power to sell in pais, which the mort- 
 gagor cannot compel the mortgagee to execute. It is inserted for the ben- 
 efit of the mortgagee, and he may avail himself of it or not, at his own 
 will. 
 
 " It was argued in the case at bar that it could not have been intended 
 that a right to foreclose would exist, because after foreclosure the trustees 
 would still hold as trustees, and so the whole matter would stand as before. 
 It is true they would hold the absolute estate as trustees ; but it would be 
 as trustees for the bondholders, and subject to such disposition thereof as 
 their rights and interests might require. In the case of Shaw et al. v. The 
 N. C. R. R., the Supreme Court of Massachusetts had a similar mortgage 
 before them, and held that the power of sale did not supersede the right to 
 foreclose by bill in equity. My opinion is therefore that upon the case 
 stated in this bill the trustees have a right to come into a court of equity 
 to foreclose this mortgage. In what manner it is to be foreclosed, whether 
 by a strict foreclosure, or by a sale, it would be premature now to decide. 
 Whether the statute law of New Hampshire, defining the rights and method 
 of foreclosure, so affects the right itself that only a strict foreclosure, sub- 
 stantially such as is there provided for, can be decreed by a court of equity, 
 or whether the grant of equity jurisdiction to the Supreme Court of that 
 State can be considered as having affected the right of foreclosure by super- 
 adding those principles of equity respecting foreclosure, which are admin- 
 istered in ^ourts of equity ; or how far this court is to regard either of these 
 considerations, and what particular method of foreclosure the principles of 
 equity require in this case, can only be properly decided at the hearing 
 when the merits of the case shall be before the court upon the allegations 
 and proofs of both parties. For the purpose of this demurrer, it is enough 
 that upon the case, as stated in the bill, the complainants appear to be 
 entitled to some decree of foreclosure; and, inasmuch as the demurrer being 
 taken to the whole bill must be overruled, if the bill for any purpose is 
 
526 MORTGAGES OF PROPERTY AND FRANCHISES. 
 
 by the system of laws adopted in the State where the 
 question arises, and need not be considered here. 
 
 sustainable, it is not necessary to decide whether the complainants are 
 entitled to the aid of a court of equity to put them in possession either in 
 the course of, or independent of a process of foreclosure. This question 
 also may best be decided at the hearing. If the complainants merely sought 
 possession of tangible property of the company, not for the purpose of fore- 
 closing the mortgage, but to enable them to take its profits, there might be 
 no sufficient reason for the interposition of a court of equity. On the other 
 hand if they also need to be quieted, and protected in the enjoyment of 
 incorporeal rights, the nature of the rights and their liabilityto numerous 
 interruptions and infringements, might render the powers of a court of 
 equity indispensable to their effectual protection. See Croton S. P. Co. v. 
 Ryder, 1 John. Chan. R. 611 ; Newburg S. P. Co. v. Miller, 5 John. Chan. R. 
 Ill ; Bos. W. P. Co. v. Bos. and W. R. R., 16 Pick. 525. 
 
 "When the whole case is before the court it can be seen what the rights 
 of the parties are, and how far and for what purposes the complainants need 
 the aid of the court. 
 
 " The remaining question is, whether it was necessary for the trustees to 
 make the bondholders parties. Generally, when a mortgage is made to a 
 trustee for the benefit of a cestui que trust, I apprehend that the question 
 whether the cestui que trust ought to be made a party, depends on the 
 purpose of the trust. If the trustee is the proper party to receive and con- 
 tinue to hold the money for the benefit of the cestui que trust, so that the 
 object of the suit is merely to reduce the trust fund to possession, that the 
 trustee may hold it in trust, the cestui que trust is not a necessary party. 
 For I take the general rule to be, that to a suit by a trustee to obtain pos- 
 session of a trust fund, the cestui que trust need not be made a party. See 
 Calvert on Parties, 212-215, and cases there cited; Allen v. Knight, 6 Hare, 
 272. But where a trustee is interposed between a lender and borrower, 
 merely for the purpose of enabling the lender to obtain payment through 
 the exercise by the trustee of powers conferred on him by the mortgage, 
 and the lender is the proper party to receive the money, he should be made 
 a party to a bill for foreclosure. It is in truth between him and the mort- 
 gagor that the account is to be taken, and he ought to be before the court 
 for the purpose of taking the account, as well as to receive the money if 
 paid. See Story, Eq. PI. sec. 201. 
 
 " But this requirement of the presence of the cestui que trust must give 
 way to the absolute impossibility, or even to the excessive inconvenience of 
 complying with it ; and the case at bar undoubtedly presents an instance of 
 such excessive inconvenience, if not absolute impossibility. The bill shows 
 that the number of different bonds Becured by this mortgage was seven 
 hundred and five, amounting to the sum of five hundred thousand dollars. 
 
MORTGAGES OP PEOPEETY AND EBANCHISES. 527 
 
 The objection against the existence of the power, 
 drawn from the general convenience, — that the legis- 
 lature conferred the franchise of making and oper- 
 ating the road on parties which it deemed its fit 
 depositaries, and that they should not be permitted 
 to assign it to irresponsible parties, — loses its force 
 when it is considered that the road is not expected 
 to be managed by the original corporators person- 
 ally, and even the control of its affairs may, by the 
 transfer of the shares of the stockholders, pass into 
 
 They were not issued until after the execution of the mortgage. Of course 
 their original holders are not parties to the deed. It is a notorious fact, 
 and recognized in various ways by the legislation of most States where rail- 
 road corporations have issued such bonds, and manifestly contemplated by 
 the deed in question, that these bonds were to be sold in the market and 
 pass from hand to hand. Consequently it must have been impossible for 
 the trustees to know who were the holders when the bill was filed. And 
 if then known there would be no probability that they would continue in 
 the same hands during any considerable time. To require the trustees to 
 make the holders parties would amount to a prohibition to sue, and it is 
 now too well settled to require a reference to authorities to show that courts 
 of equity do not allow a rule respecting parties adopted for purposes of 
 convenience and safety, to operate 60 as to defeat entirely the purposes of 
 justice. Nor is this a case in which it could answer any beneficial purpose 
 to make some of the bond-holders parties in behalf of themselves and all 
 others. The trustees are competent (Powell v. Wright, 7 Beav. 444), and it 
 is their duty to represent all. The deed so treats them. In the cases of a 
 Bale, or possession taken of the road for purposes of managing it, and 
 receiving the income, the deed looks to the trustees to ascertain who are 
 holders of bonds and to pay to each his aliquot part, and it is in the power 
 of the court by directing the proper inquiries before a master to have the 
 holders of the bonds before the court at the moment when the account is to 
 be taken, and thus afford all needful security, as well to them as to the 
 mortgagors and the trustees. See Story's Eq. PI. sec. 207 a; Williams v. 
 Gibbs, 17 How. 239 ; Gooding v. Oliver, ib. 604. It was stated at the bar, 
 that the Supreme Court of Massachusetts came to this same conclusion in 
 reference to parties in Shaw v. Norfolk C. R. E. above referred to, but that 
 no report of the decision on that point has been made. My opinion is that 
 the objection for the want of parties is not tenable. 
 
 " The demurrer is overruled, and the defendants ordered to answer the 
 bill." 
 
528 MORTGAGES OF PKOPEETT AND FRANCHISES. 
 
 the hands of parties who could not possibly be 
 within the contemplation of the legislature when 
 making the grant. The objection is mainly tech- 
 nical, and can hardly outweigh the public conveni- 
 ence and necessity, which require even for the sake 
 of maintaining the credit of solvent corporations, 
 that all their property should be subjected to the 
 payment of their debts lawfully created, and, in 
 many cases, that the road of an insolvent corporation 
 whose financial difficulties disable it from perform- 
 ing its public duty, should pass under the control^ 
 of other parties, who are competent to answer that 
 convenience and necessity. 
 
 The question as to the power of a railroad company 
 to mortgage its road, has been much complicated, 
 from the circumstance that, as railroads are usually 
 owned and operated by corporations, the franchise of 
 being a corporation, which is from its nature not 
 assignable, has been considered in connection with 
 the power to use the road and enjoy its revenues, 
 which differs essentially from the power of existing 
 and acting as an artificial body. But there is no 
 reason why a railroad may not be owned by a private 
 individual, who has obtained from the legislature a 
 grant of power to exercise its right of eminent 
 domain for the purpose, and to receive tolls for 
 persons and goods carried over the same, the same 
 public duties being imposed upon him as upon a cor- 
 porate body receiving the same grant. It would be 
 difficult to maintain that the individual grantee of 
 such a power could not, after he had appropriated 
 his right of way, like the owner of a ferry franchise, 
 transfer the right to use it and to enjoy its tolls ; and 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 529 
 
 it is conceived that the same power in this respect 
 exists in a corporation as in an individual. Neither 
 could bestow the franchise of being a corporation, 
 which would be in effect creating a new one; while 
 both are under public duties, an 1 upon general princi- 
 ples their powers and obligations would be the same, 
 It is objected to the power of the company to 
 mortgage its road that it is a public highway. 1 The 
 right of the State to condemn private property for 
 the road, rests on the ground that it is to be used for 
 public purposes. 2 The State, it has been held, may 
 intervene to prevent the road from being used for 
 other purposes than a public highway, and to compel 
 the company to maintain it for that purpose. 8 But 
 the proposition that the road is a public highway, if 
 admitted, would not require the admission of its dis- 
 ability to transfer the right to use the same. The 
 right of the State to have it maintained for public 
 travel and transportation does not interfere with 
 its management by other parties than the original 
 corporation and their enjoyment of the tolls ; and if 
 it did, it would seem to be a right for the State to 
 assert or waive at its pleasure, and not to be taken 
 advantage of collaterally. 4 
 
 1 See Ammant v. New Alexandria and Pittsburg Turnpike, 13 S. & R. 
 210; Leedom v. Plymouth R. R. Co., 5W. &S. 265; State v. Rives, 5 Iredell, 
 301, 302; State v. Mexican Gulf R. Co., 3 Rob. (La.) 613. This position is 
 controverted in 4 Am. Law Mag. 254. 
 
 * Ante, ch. viii. pp. 147-151 ; People v. White, 11 Barb. 26. 
 
 3 Rex v. Severn and Wye R. Co., 2 B. & Aid. 646; Reg. v. Eastern Cos. 
 R. Co., 10 Ad. <fe El. 531; Regina v. South Wales R. Co., 14 Q. B. 902; 
 Grant on Corp. 284, 285. 
 
 * Angell & Ames on Corp. ch. v. § 191 ; Arthur v. Commercial and R. R. 
 Bank of Vicksburg, 9 Smedes & M. 431 ; Fellows v. Same, 6 Rob. (La.) 246. 
 
 35 
 
530 MORTGAGES OF PROPERTY AND FRANCHISES. 
 
 The assignment by a railroad company pf its 
 property, including its road, by a trust deed for the 
 benefit of creditors, has been sustained. 1 
 
 The liability of the road to be taken on execution 
 against the company, has been affirmed in North 
 Carolina, although it was decided that the franchise 
 of being a corporation could not be sold on execu- 
 tion. 2 If no remedy is to be allowed at law for 
 obtaining satisfaction of the judgment by levying 
 execution on the road, the better opinion is that its 
 tolls may be reached in equity for that purpose, 
 
 
 Mortgage of subsequently acquired Prop- 
 erty. — Where the power to . mortgage exists, the 
 question may arise as to what is covered by a given 
 mortgage. It is a general principle of the common 
 law that the subject of a mortgage must be in exist- 
 ence when it is made, and that nothing passes by it 
 which does not at the time when it is made belong 
 to the mortgagee. 4 But where the company, under 
 
 1 Fellows v. Commercial and R. R. Bank of Vieksburg, 6 Rob. (La.) 246 ; 
 Arthur v. Same, 9 Smedes & M. 394, 432 ; Allen v. Montgomery R. R. Co., 
 11 Ala. 43*7 ; Mobile and Cedar Point R. R. Co. -o. Talman, IS id. 472, 491; 
 De Ruyter v. St. Peter's Church, 3 Comst. 238, 242, 243. 
 
 2 State v. Rives, 5 Iredell, 297 ; contra, Ammant v. New Alexandria and 
 Pittsburg Turnpike, 13 Serg. & R. 210; Leedom v. Plymouth R. R. Co., 
 5 Watts & S. 265; Susquehanna Canal Co. v. Bonham, 9 id. 27; Winchester 
 and Lexington Turnpike Road Co. v. Vimont, 5 B. Monroe, 1. See Tippets 
 v. Walker, 4 Mass. 696, 597 ; Macon and Western R. R. Corp. «. Parker, 
 9 Geo. 377. 
 
 3 Ammant v. New Alexandria and Pittsburg Turnpike, 13 Serg. <fe E. 
 210; Allen v. Montgomery R. R. Co., 11 Ala. 437 ; Macon and Western E. 
 E. Co. a. Parker, 9 Geo. 377 ; Bigelow v. Cong. Society of Middletown, 
 11 Vt. 283. 
 
 4 Jones v. Eichardson, 10 Met. 488 ; Moody v. Wright, 13 id. 17 ; 2 Hil- 
 liard on Mort. 196. 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 531 
 
 competent authority, conveys by mortgage its road 
 and all its property, with all its corporate franchises 
 and rights, as one entire thing, including, among 
 other franchises, the right to acquire future property, 
 and in effect conveys the corporation itself, subse- 
 quently acquired property will pass to the mortgagee 
 as an incident and accession to the subject of the 
 mortgage. The right to acquire the property being 
 one of the franchises conveyed, it is included within 
 the mortgage, and property acquired afterwards by 
 virtue of its exercise, is acquired and held under 
 and subject to the conditions of the mortgage. 1 
 
 Remedies of Mortgagee. — A power of sale con- 
 tained in a mortgage made by the company is a 
 cumulative remedy, and does not exclude the mort- 
 gagee from other remedies to which he would have 
 been entitled, if no such power had been given. 
 It does not take from equity its jurisdiction to 
 decree a sale under its direction, or a strict, foreclo- 
 
 sure. 2 
 
 ' Pierce v. Emery, 32 N. H. 484 ; Willink v. Morris Canal and Banking 
 Co. 3 Green Ch. 377 ; Seymour v. Burnett, Court of Appeals of Kentucky, 
 June, 1856, not yet reported; see State v. Mexican Gulf R. Co. 3 Rob. (La.) 
 513. 
 
 ' Shaw et al., Trustees, v. Norfolk Count}' K. R. Co., Supreme Court of 
 Mass., Nov. T., 1856, to be reported in 5th vol. of Gray's Reports ; Hall v. Sul- 
 livan R. R. Cu., U. S. Circuit Court for the District of New Hampshire, before 
 Curtis, J., ante, p. 524, note; see Carradine v. O'Connor, 21 Ala. 5*73 ; Eaton 
 v. Whiting, 3 Pick. 484 ; Byron v. May, 2 Chandler (Wis.), 103 ; 2 Story Eq. 
 Juris. §§ 1024, 1026, 1027. In Shaw et al., Trustees, v. Norfolk County 
 R. R. Co. the opinion of the Court, delivered by Merrick, J., upon this and 
 other points, is as follows : — 
 
 " Several considerations have been urged upon our attention by the 
 respondents, as valid objections to the maintenance of the present bill. It 
 
532 MORTGAGES OP PKOPEETT AND FRANCHISES. 
 
 % 
 
 Parties to a bill for foreclosure. — "Where the 
 trustees of the bondholders under the mortgage of 
 
 is insisted, in the first place, in their behalf, that a franchise created by the 
 legislature and conferred by its authority on a particular party, cannot be 
 sold or transferred by him to another. But if this general proposition, con- 
 cerning which it is unnecessary at this time to express any opinion, should 
 be admitted to be strictly correct, it would be of no advantage to the 
 respondents in the present case, because their conveyance to the complain- 
 ants has been ratified and confirmed by a subsequent statute, duly enacted. 
 Stat. 1850, ch. 175, § 2. Besides, by the deed of j^dfijiture recited in the 
 bill, not only the franchise of the Norfolk County Railroad Company, but 
 also all its real and personal property, consisting besides other things of lands 
 houses, stations, iron sleepers, cars, and engines, was conveyed to the com- 
 plainants, to be held by them in trust and as security for the payment of the 
 bonds which it was the purpose, and intention of the corporation to issue 
 and deliver to its creditors. And if any doubt could ever have been sup- 
 posed to exist in relation to the transfer of the franchise, there certainly 
 would have been none concerning the conveyance of the lands and personal 
 property described in the deed of indenture. And there may be a suit as 
 well for the foreclosure as for the redemption of lands subject to the incum- 
 brance of a mortgage. Rev. Stat. ch. 81, § 8. 
 
 " But the respondents further object that the bill cannot be maintained 
 because there was no such conveyance to the grantees as would in law give 
 to them an estate absolutely upon a breach of the condition upon which it 
 was made ; and, consequently, that there was no equity of redemption in 
 the grantors, and would be no necessity or occasion for any process to aid in 
 effecting a foreclosure. This position is predicated upon the assumption 
 either that the grantors are limited to the specific remedies provided for 
 them in the deed of indenture, or that the legal effect of the deed is to cre- 
 ate only, and nothing more than, a Welsh mortgage. But neither the one 
 nor the other of these assumptions can be sustained. Welsh mortgages are 
 frequently mentioned in the English books. They resemble, says Chancellor 
 Kent, the vivum vadium of Lord Coke, under which the creditor took the 
 estate to hold and enjoy it without any limited time of redemption, and un- 
 til he repaid himself whatever was due to him out of its rents and profits. 
 But they are now entirely out of use in that country (4 Kent, Com. 187); and 
 they do not ever appear to have been recognized or practically known 
 among the modes of conveyancing which have prevailed in this common- 
 wealth. They cannot exist under our statute which provides, that when the 
 condition of any mortgage of real estate has been broken, the mortgagor and 
 his assigns may redeem the same at any time before a legal foreclosure has 
 been effected. Rev. Stat. 107, sec. 13. 
 
 " Every circumstance attending the transaction has the most manifest 
 
MORTGAGES OP PROPERTY AND FRANCHISES. 533 
 
 the railroad, bring a bill in equity to foreclose the 
 same, the bondholders, who are generally numerous, 
 
 tendency to show that the deed of indenture executed by the respondents, 
 and conveying their railroad, lands, and personal property to the com- 
 plainants, was intended by them to be, as it in fact is, a mortgage of the 
 granted premises. It begins with a vote of the stockholders, authorizing the 
 directors to mortgage the railroad, franchises, and property of the company 
 to raise thereby such sums of money as should be found necessary to com- 
 plete and equip the road, and pay off all existing liabilities. In the meas- 
 ures adopted by the directors, they recite and profess to be governed 
 exclusively by the terms of that vote, and in pursuance of it, they authorize 
 and direct the president and treasurer to execute a mortgage in the name 
 and behalf of the company. And the instrument which was executed under 
 that authority was afterwards ratified and confirmed by act of the legisla- 
 ture. Stat. 1850, ch. 175. The deed of indenture contains in itself all the 
 provisions, and has all the characteristics of that species of conveyance. It 
 conveys an estate in fee to the grantees, to have and to hold the same to 
 them and their survivors and successors, but upon the express condition that 
 if payment of the bonds, and the interest accruing upon them shall be truly 
 made as the same respectively fall due, the indenture itself shall thereupon 
 become void, and of no effect. The conveyance being thus defeasible when 
 the condition annexed to it has been performed according to its legal effect, 
 and by means of such performance, can be regarded in no other light than 
 that of a mortgage of the estate conveyed. Erskine v. Townsend, 2 Mass. 
 493 ; Nugent v. Riley, 1 Met. 1 17. 
 
 " And neither the right conferred upon the grantees to take possession, 
 upon the non-performance by the grantors of the stipulated conditions, of 
 the whole of the mortgaged property and to manage and control it, and 
 apply the net proceeds arising from its use to the purposes of the trust, nor 
 the duty imposed upon and assumed by them to proceed, and take possession 
 of the premises upon the requisitions of two thirds of the bondholders 
 according to the special provisions relative to that subject contained in the 
 deed, affects the nature and character or legal effect of the instrument itself. 
 It was not less a mortgage than it would otherwise have been, because the 
 grantees were invested by special agreement with an additional authority 
 beyond what they would have possessed without it, and which they would 
 have no right to exercise except under an express stipulation. And so long 
 as they took no advantage and nothing has been done under it, the rights 
 and interests of the respective parties to the conveyance, and their relations 
 to each other were in no respect changed or affected by it. 'A power to 
 6ell executed to one who relies upon such power, and expects and in- 
 tends to purchase an absolute estate, will, without doubt, pass an uncon- 
 
534 MORTGAGES OF PROPERTY AND FRANCHISES. 
 
 and owing to the transfer of the bonds difficult to 
 be ascertained, are not necessary parties to the bill ; 
 
 ditional estate to the purchaser, though this form of conveyance is rare in 
 this country. But while the power remains unexecuted, the relation of 
 mortgagor and mortgagee subsists, if that was the relation created by the 
 instrument separate from the power.' Eaton v. "Whiting, 3 Pick. 484. 
 
 " But this bill may well be maintained by the complainants upon another 
 and different ground. By the contract expressed in the deed of indenture, 
 a trust is created, to the due performance of which they have firmly bound 
 themselves and their successors. In the discharge of'the duties thus created 
 and thus assumed, the possession, management, and control of the estates 
 and interests conveyed to them may — and as it seems to have already^-ieGome 
 indispensable. For the due enforcement and regulation of such a trust, - 
 ample power is found in the jurisdiction of this court as a court of equity ; 
 and the present bill is an appropriate course of proceeding to procure for 
 that purpose the intervention and exercise of its authority. 
 
 " The bill prays for general relief, as well as for a specific decree in rela- 
 tion to the foreclosure of the equity of redemption. And upon the facts 
 stated in it, and which upon the hearing were admitted to be true, we can see 
 no reason why the complainants ought not to be put in immediate possession 
 of the mortgaged property in order that the purpose for which the convey- 
 ance'was made may be accomplished, and the trust created by it be properly 
 executed. The respondents have neglected, and still neglect, to pay the 
 income, which has accrued upon a large proportion of the bonds which were 
 duly issued and which are held by the creditors of the corporation. These 
 bondholders are entitled to demand the money which has become due, and 
 it is the duty of the trustees to make use of the discretionary powers which 
 are conferred upon them for the express purpose of insuring the payments 
 to which the creditors should severally become entitled. To that end, pos- 
 session of the mortgaged property is indispensable, and the complainants 
 ought therefore to have a decree by force of which they can obtain it. 
 
 " We see no ground for the suggestion, that the bill cannot be maintained 
 because the complainants have an adequate and complete remedy at law. 
 It is obviously quite the reverse. The nature of the property with the pos- 
 session of which they seek to be invested, renders it impossible for them to 
 find a remedy in a single suit at law. There must be, if resistance is made 
 to their claim of possession, unless recourse be had to the equitable jurisdic- 
 tion of the court, actions real in different counties as well as actions personal, 
 besides such other and further proceedings as may be suitable to obtain the 
 control and enjoyment of the franchise of the corporation. And besides all 
 this, the trust is to be regulated as well as the property possessed. To con- 
 trol all this property, to enforce these obligations, and to preserve the rights 
 
MORTGAGES OF PROPERTY AND FRANCHISES. 535 
 
 their presence being dispensed with on account of 
 the great inconvenience, if not absolute impossibility, 
 of making them parties. 1 
 
 of all parties interested, the court can only when exercising the equitable 
 powers conferred upon it, afford a complete and adequate remedy. 
 
 " A decree properly prepared must therefore be entered on behalf of the 
 complainants, entitling them to have immediate possession of all the mort- 
 gaged property.'' 
 
 1 Hall v. Sullivan R. R. Co., ante, p. 526 note ; Willink v. Morris Canal 
 and Banking Co., 3 Green Ch. 311 ; Story Eq. PI. § 149, 150. 
 
INDEX 
 
 ACCEPTANCE, 
 
 of an offer, 364. 
 
 of goods by the company, 425, 426. 
 
 of goods by the owner before reaching their destination, 459. 
 ACTION, 
 
 form of, against the company for torts of servants, 234, 235, 505. 
 for injuries to cattle, 358. 
 for loss of goods, 467. 
 against the company assuming to take private property in vio- 
 lation of the constitution, 171, 231. 
 at common law, when excluded by a special remedy providing 
 compensation for injuries to land-owner, 168, 223-231. 
 AGENTS, 
 
 liability of the company for stock issued by, 130-137. 
 injuries inflicted by and upon. 
 
 (See Servants.) 
 contracts made by, 373-375. 
 
 testimony of, when admissible for the company, 405. 
 agreement to compensate, 396. 
 
 of the company, to receive goods for transportation, 425, 430, 
 431. 
 AGREEMENTS, 
 
 (See Contracts.) 
 ALTERATION OF CHARTER, 
 
 power of, reserved in the charter, 36-38. 
 
 effect of, on the liability of a subscriber, 78-100. 
 
 AMENDMENT OF CHARTER, 
 
 power of, reserved in the charter, 36-38. 
 
 effect of, on the liability of a subscriber, 78-100. 
 
538 INDEX. 
 
 APPRAISERS, 
 
 of damages, appointed by statute, 166. 
 
 injuries to be considered by, 184-198. 
 
 evidence to be admitted by, 198-203. 
 
 award of, when set aside, 205, 206. j 
 
 benefits, when to be considered by, 206-212. 
 
 may pass on the title of the claimant, 167. 
 ASSENT, 
 
 of a party to become a subscriber to the capital stock, 56-63. 
 
 of parties to contracts, 360, 361. , 
 
 to offers on time, 364, 365. ,, • 
 
 by letter, 366, 367. A 
 
 mutuality of obligation, 361-364. 
 
 ASSESSMENTS, 
 
 of taxes, rule for making, 54, 55. * - 
 
 upon the shares of the capital stock, mode of collecting, 100- 
 
 108. 
 of damages to land-owners, mode of, 166-171, 505, 506. 
 when to be made, 161-166. 
 injuries to be included in, 171-198. 
 evidence admissible in, 198-203. 
 measure of damages, 203, 204. 
 when to be set aside, 205, 206. 
 deduction of benefits, 206-212. 
 joinder of parties in, 212, 213. 
 notice of, 213. 
 ASSIGNMENT, 
 
 of shares, effect of, on liability of the assignor and assignee, 77. 
 mode and effect of, 128, 129. 
 fraud in, 130-137. 
 
 of corporate rights, 397-403, 511-530. 
 of railroad for benefit of creditors, 513, 530. 
 AWARD, 
 
 of engineers on contractor's work, 377-383. 
 of damages to land-owners, 166-171, 505, 506. 
 
 when set aside, 205, 206. 
 
 B. 
 
 BAGGAGE, 
 
 (See Luggage op Passenger.) 
 BANK BILLS, 
 
 liability of the company for, when intrusted to its servants for 
 carriage, 432-434. 
 
INDEX. 539 
 
 BAR, 
 
 statute remedy for assessing damages, a bar to a common-law 
 
 action, 168-171, 223-231. 
 suit by the owner of goods against a carrier, a bar to a suit by 
 
 bis bailee who delivered them to the company, 464. 
 BENEFITS, 
 
 when to be deducted in assessing the damages to land-owners, 
 
 206-212. 
 
 BILLS OF EXCHANGE, 
 
 (See Promissory Notes and Bills of Exchange.) 
 BONA FIDE HOLDER, ' 
 
 of stock fraudulently issued, rights of, 130-137. 
 
 BONDS, 
 
 of the company, when negotiable, 129, 371. 
 
 what seal makes, 371. 
 
 agreement of contractor to receive, in payment of work, 389. 
 
 BONDHOLDERS, 
 
 nonjoinder of, in suits for foreclosure of mortgages brought by 
 their trustees, 532. 
 
 BRAKEMAN, 
 
 injuries to, 291, 298. 
 
 BRIDGE COMPANIES, 
 
 when entitled to compensation for injuries to their franchise or 
 property, 21, 28, 158-160. 
 
 BURDEN OF PROOF, 
 
 of negligence in injuries by fire, 314-317. 
 
 to cattle, 357. 
 in case of losses by a common carrier of goods, 467, 468. 
 injuries to passengers, 492, 493. 
 
 c. 
 
 CANALS, 
 
 power to obstruct and interfere with, 10, 11, 22-24. 
 
 CAPACITY, 
 
 of the company to make contracts, 395-404. 
 
 as a common carrier, 451-453. 
 to mortgage its road and franchises, 511-530. 
 CAPITAL STOCK, 
 
 creation of, by subscriptions, 56-126. t 
 (See Subscriptions to the Capital Stock, Issue and Transfer of 
 Shares of Capital Stock.) 
 
540 INDEX. 
 
 CARRIAGE, 
 
 of persons and goods, 
 {See Common Carrier of Goods, and Common Carrier of Passengers.) 
 CARRIER, COMMON, 
 
 {See Common Carrier, &c.) 
 CATTLE, 
 
 injuries to, at common law, 320-332. 
 when on the highway, 332. 
 at farm crossings, 334. 
 under statutes requiring fences, 334-337. 
 wrongful act of owner, 336. 
 when wrongfully on the adjoining land, 337-344. 
 waiver by the owner of, of statute requiring fences, 
 
 344, 345. 
 when the company required to fence against, with- 
 out an express statute provision, 346-351. 
 duty to fence imposed by a special tribunal, 351, 
 352. 
 
 imposed by contract, 352, 353. 
 kind of fence required by statute, 353. 
 statutes imposing obligation to fence, construed, 
 354. 
 
 exceptions to, 355-357. 
 negligence of the company, a question of fact, 357. 
 burden of proof of, 357. 
 form of action for injuries to, 358. 
 power of the legislature to require fences, 41, 45, 
 358. 
 liability of the company in the transportation of, 462, 463. 
 CERTIFICATES OF CAPITAL STOCK, 
 
 when invalid on account of fraud in the issue, 130-137. 
 CITIES, 
 
 subscriptions by, to the capital stock of a railroad company, 
 
 when binding, 108-126. * 
 power of, to authorize railroads to be constructed upon their 
 streets, 178-184. 
 CHARLES RIVER BRIDGE CASE, 21, 22. 
 CHARTER, 
 
 defined, 1, 2. 
 
 general frame of, 3-7. 
 
 protected by the United States constitution, 1, 9. 
 
 what impairs the obligation of the contract implied in, 20, 89. 
 
INDEX. 541 
 
 CHARTER, continued. 
 
 grant of exclusive privileges by, not implied, 20-26. 
 
 binding when express, 27-35. 
 exemption from taxation by, 35, 36. 
 clause reserving power to alter, 36-39. 
 police laws not a violation of, 40-46. 
 injunction against the company to restrain it from embarking 
 
 in projects not authorized by, 85-89, 508, 509. 
 liability of the company for shares of capital stock issued in 
 
 violation of, 130-137. 
 contracts in violation of, 395-404. 
 
 CHILDREN, 
 
 negligence of, 278-282. 
 
 COMMISSIONERS, 
 
 to assess damages, appointed by statute, 166. 
 injuries to be estimated by, 184-198. 
 evidence to be received by, 198-203. 
 award of, when set aside, 205, 206. 
 benefits, when to be deducted by, 206-212. 
 may pass on the title of the claimant, 167. 
 COMMON CARRIER OF GOODS, 
 
 liability of the company as, 406-409. 
 by passenger trains, 408. 
 measure of, 409-413. 
 in relation to time of transportation, 411. 
 for goods stored in its warehouses, 428, 435 -446. 
 for bank bills, 432-434. 
 for perishable articles, 412. 
 in the transportation of cattle, 462, 463. 
 fraud of owner, effect of, on its liability, 412, 413. 
 public duty to carry for all persons, 413-415. 
 special contracts and notices limiting liability, 415-424. 
 delivery to the compa^ 425-434. 
 
 where to be made, 425. 
 notice of, 426. 
 what constitutes, 429. 
 to the proper agent, 430, 431. 
 prepayment of fare not necessary to, 430. 
 delivery by the company, 434-459. 
 
 as to place, 434, 435. 
 when the liability of the company is changed from that of 
 common carrier to that of warehouseman, 435-446. 
 
542 index. 
 
 COMMON CARRIER OF GOODS, continued. 
 
 unlading of goods, liability for, 446-448. 
 
 termination of all liability, 448, 449. 
 
 notice to the consignee, 449-451. 
 
 liability of the company for goods consigned to places beyond 
 
 its terminus, 451-458. 
 duty to # deliver to the proper person, 458. 
 acceptance by the owner of the goods before they reach their 
 
 destination, 459. 
 lien of the company, 459-461. 
 compensation, 461, 462. 
 to' what parties, liable, 464, 465. 
 liability to owners of goods carried by an expressman in its 
 
 trains, 464. ./■>, 
 
 damages in actions against, 465-467. 
 action of trover against, 467. 
 burden of proof in case of loss, 467, 468. 
 
 COMMON CARRIER OP PASSENGERS, 
 measure of liability of, 469. 
 duty of, as to servants and machinery, 470-475. 
 liability for secret defects in machinery, 471—473. 
 duty as to management of switches, 474. 
 liability for injuries received by a passenger in leaping from 
 
 the cars, 475. 
 negligence of passenger, effect of, 475, 476. 
 liability for passengers carried gratuitously, 476-483. 
 for persons unlawfully on the train, 484. 
 for passengers on freight trains, 484. 
 for passengers purchasing ticket to places beyond its 
 
 terminus, 485, 451-458. 
 of persons other than the proprietors of the road con- 
 tracting to carry persons over it, 485, 486. 
 for passengers purcmEing rights of passage over its 
 road of other companies, 486, 487. 
 public duty towards persons traveling over its road in trains 
 
 of other companies, 487. 
 liability for passengers on ferry boats, 488. 
 duty to receive passengers and carry them according to its 
 
 professions, 489, 490. 
 passengers to conform to reasonable regulations, 490, 248-254. 
 duty of, to give up their tickets, 491. 
 
INDEX. 543 
 
 COMMON CARRIER OP PASSENGERS, continued. 
 
 not entitled to leave the train at an intermediate 
 station, and resume the journey by virtue of a 
 through ticket, 491, 492. 
 when required to pay a higher fare for not having 
 
 purchased tickets before entering the cars, 492. 
 burden of proof of injury to passengers, 492, 493. 
 damages recoverable by passengers for injuries; 
 
 493^495. 
 luggage of passengers, company liable for, as com- 
 mon carrier, 495. 
 
 what may be included in, 496, 497. 
 when liability for, begins and ends, 
 
 498, 499, 425-434, 448, 458. 
 notices and contracts limiting liability 
 
 for, 499, 500, 415-424. 
 lien on, 500, 459-461. 
 burden of proof in case of loss of, 
 
 500, 501, 467, 468. 
 testimony of passenger as to items 
 of, 501, 502. 
 COMPANY, RAILROAD, 
 denned, 1, 2. 
 formation of, 1-8. 
 COMPENSATION, 
 
 for property appropriated by virtue of the right of eminent 
 domain for the purposes of the company, when to be made, 
 161-166. 
 mode and tribunal for determining, 166-171. 
 what injuries are the subjects of, 171-198. 
 for property actually taken, 172. 
 for injuries to franchises, 172, 173. 
 for consequential injuries, 173. 
 for injuries to lands on navigable waters, 175-178, 
 
 on highways, 178-184. 
 what injuries are included within the statutes providing, 184- 
 
 198. 
 evidence, admissible to determine, 198-203. 
 measure of damages, 203, 204. 
 benefits, when to be deducted, 206-212. 
 when the award is set aside for excessive damages, 205, 200. 
 of a common carrier, 461, 462. 
 
544 INDEX. 
 
 CONDEMNATION, 
 
 acquisition of real estate and right of way by, 147-215. 
 right of eminent domain in the State, how derived, 147 
 to be exercised for a public use, 148. 
 
 a corporation may be used by the State for the purpose, 149. 
 necessity justifying the exercise of the power, 149, 150. 
 specific land need not be designated by the State in delegating 
 
 the power to a corporation, 150. 
 property subject to be taken, 151-161. 
 all private property, 151. 
 public lands of the United States, 151. 
 franchises and property of corporations, 151-160. 
 whether the legislature can grant away the right of eminent 
 
 domain, 156. 
 exclusive rights appropriated by the State, 156-160. 
 quantity of estate taken, 160, 161, 513, 529. 
 compensation when to be made, 161-166. 
 payment of compensation or an adequate provision therefor to 
 
 precede the appropriation, 162. 
 compensation need not precede preliminary surveys, 163. 
 or an exclusive occupation temporarily, 163. 
 compensation by some state constitutions required to precede 
 
 an entry for the construction of the road, 164, 165. 
 when the estate vests in the company, 165, 214. 
 mode of determining the compensation, 166-171. 
 special tribunal appointed for the purpose, 166. 
 trial by jury, not generally required, 166. 
 compensation for the taking of the franchise determined by 
 
 the ordinary remedy, 167. 
 title of claimant passed upon by the special tribunal, 167. 
 special remedy exclusive, 168, 223-231. 
 the appraisers are to presume that the company will execute its 
 
 work properly, 169, 228. — . 
 the company, estopped from denying its authority to do the 
 
 work involving the damage, 169. 
 conditions precedent to the condemnation, 169, 170. 
 representations of the company at time of the assessment as 
 
 to the mode in which the work would be constructed, 170. 
 act authorizing the appropriation void, if in conflict with the 
 
 state or federal constitutions, 171, 231. 
 injuries to be compensated in the assessment of damages, 171- 
 
 198. 
 property actually taken, 172. 
 
INDEX. 545 
 
 CONDEMNATION, continued. 
 
 injuries to franchises, 172, 173. 
 
 which are consequential, 173-175. 
 to lands on navigable waters, 175-178. 
 on highways and streets, 178-184. 
 
 liability of the company for damages to land-owners, as defined 
 by the statutes of, the different States, 184-198. 
 
 evidence of damages, Jcind of, admissible, 198-203. 
 
 commissioners appointed to assess damages governed by the 
 rules of evidence, 198. 
 
 when the admission of improper evidence will justify the set- 
 ting aside of the award of damages, 199. 
 
 opinions of witnesses, when admissible, 199, 200. 
 
 sales of adjoining lands, admissible, 201, 202. 
 
 measure of damages, governed by the market value, 203, 204. 
 
 setting aside of the award for excess of damages, 205, 206. 
 
 deduction of benefits in the assessment of damages, 206-212. 
 
 joinder of parties, 212, 213. 
 
 notice of proceedings to condemn property, 213, 214. 
 
 general law of New York, 214. 
 
 CONDITIONS, 
 
 as to location, inserted in a subscription to the capital stock, 
 
 70 75. 
 in a deed, whether precedent or subsequent, 139-141. 
 precedent to the appropriation of property by the company, 
 169, 170. 
 to the sale of shares for non-payment of assessments, 
 107. 
 CONDUCTORS, 
 
 right to eject passengers refusing compliance with the rules 
 
 of the company, 248-254, 490-492. 
 injuries to inferior servants by the negligence of, 305, 306. 
 CONSEQUENTIAL INJURIES, 473, 222. 
 
 CONSIDERATION, 
 
 of a contract, 367-369. 
 
 CONSIGNEE, 
 
 of goods, duty of the company in case of his death, absence 
 or refusal to receive them, 449. 
 
 notice to, 449. 
 CONSOLIDATION, 
 
 of companies, effect of, on remedies against, 503. 
 
 36 
 
546 INDEX. 
 
 CONSTITUTION OF THE UNITED STATES, 
 
 effect of, on the charter of the company. 1, 19-46. 
 
 (See Power of the Legislature over the Company.) , 
 
 exclusive privileges when protected by, 12, 20-35, 151-1d0. 
 CONSTITUTIONS OP THE STATES, 
 
 as to subscriptions by municipal corporations to the stock of 
 railroad companies, 108-126. _ 
 
 when the right of eminent domain may be exercised under, 
 147-151. 
 
 what may be taken under this right, 151-161. 
 
 when the compensation must be made, 161-166. 
 
 whether a trial by jury is required to assess the damages, 166. 
 
 what injuries are required to be compensated, 171-184. 
 
 in relation to the deduction of benefits, 206-212. 
 
 injuries under color of legislative authority, when not author- 
 ized by, actionable, 171, 231. 
 CONSTRUCTION, 
 
 of written conditions in a subscription, 75. 
 
 of a conveyance to the company, 138. 
 
 of statutes imposing the obligation to fence, 334, 338-344, 
 353-357. 
 
 of statutes imposing the liability for injuries by fire, 317-319. 
 
 CONSTEUCTION OP POWERS, 
 general rule, 9, 10. 
 strict construction, 9. 
 
 powers rendered worthless by restrictions on them, 10. 
 strict construction of powers interfering with a previous grant, 
 
 10, 11, 216. 
 with free navigation, 
 11. 
 against the right to own a ferry, 11. 
 
 to declare forfeiture of shares, 12. 
 to take private property, 12, 13. 
 to change location, 12, 218. 
 to take tolls, 12. 
 to be exempt from taxes, 12. 
 to maintain exclusive privileges, 12. 
 to hold real estate, 12, 13, 138. 
 implied powers, 13-18. 
 
 in taking land, 13. 
 
 in making embankments and excavations, 13. 
 
 in removing a dwelling house, 13. 
 
 in fixing a location, 13. 
 
INDEX. 547 
 
 CONSTRUCTION OF POWERS, continued. 
 
 implied powers in making a turnout on a street, 13, 14. 
 to make use of land within the limits of its location, 14-18. 
 constructive exemption from taxation, 49. 
 to make and change its location, 215-218. 
 to make contracts, 395-404. 
 CONTRACTS, 
 
 when the company is capable of taking a deed, 359. 
 
 assent of the parties; 360, 361. 
 
 mutuality of obligation, 361-364. 
 
 offers on time, 864, 365. 
 
 assent by letter, 366, 367. 
 
 consideration of, 367-369. 
 
 form of, 369-371. 
 
 within the statute of frauds, 371. 
 
 what seal makes them specialties, 371. 
 
 negotiable bonds, 129, 371, 372. 
 
 promissory notes and bills of exchange, 372, 373. 
 
 by agents, 373-375. 
 
 subject-matter of, 375. f 
 
 for the purchase of real estate, 375. 
 
 with contractors, 376-390. 
 
 failure of contractor to complete his work within the time 
 
 agreed on, 376. 
 forfeiture of unpaid installments, and discretion vested in the 
 
 engineer, 377-383. 
 claim for extra work, 383-386. 
 liability of the company to a subcontractor, 387. 
 damages for breach of the agreement with the contractor, 388, 
 
 389. 
 agreement of contractor to receive stock or bonds in payment 
 
 of work, 389, 390. 
 unlawful contracts, 390-395. 
 
 giving exclusive privileges to an express company, 390. 
 for carrying measures through legislative bodies, 391-395. 
 capacity to make contracts, 395-404. 
 principle determining the capacity, 395, 396. 
 decisions in England on its capacity to transfer the management 
 
 of its road, 397-404, 512. 
 merger of, 404. 
 
 evidence of performance of, 405. 
 as common carriers. 
 (See Common Carrier of Goods, Common Carrier of Passengers.) 
 duty to fence imposed by, 352. 
 
548 INDEX. 
 
 CONTRACTORS, 
 
 liability of the company for the torts of, and of their servants, 
 
 235-242. 
 agreements by, with the company, 376-390. 
 
 CONVEYANCE, 
 
 when the company is incapable of taking, 359. 
 (See Real Estate.) 
 CORPORATE RIGHTS, 
 
 agreements to transfer, 397-404, .611. 
 COSTS, 
 
 when recoverable in assessments of damages for land taken, 
 205, note. 
 COUNTIES, 
 
 subscriptions by, to the capital stock of a railroad company, 
 when valid, 108-126. ~\ 
 
 COUNTY COMMISSIONERS, 
 
 special tribunal to assess damages to a landowner, 166. 
 what injuries are to be taken into consideration by them under 
 
 the statutes of the several States, 184;-198. 
 evidence to be admitted by, 198-203. 
 benefits when to be considered by, 206-212. 
 decision on title, to be revised by jury, 167. 
 
 COUPONS, 
 
 attached to bonds, 129, 371. 
 CREDITORS, 
 
 remedies of, 510, 511-535. 
 
 D. 
 
 DAMAGES, 
 
 in suits for breach of contract to sell or purchase stock, 128. 
 
 to convey land, 141. 
 for injuries to a land-owner, 203-205. 
 setting aside of award for excess of, 205, 206. 
 benefits when and to what extent to be deducted, 206-212. 
 in case of torts, 254, 255. 
 loss of profits, 255. 
 for injuries resulting in death, 261, 262. 
 
 to passengers, 493-495. 
 for breach of agreement with contractor, 388, 389. 
 to carry goods, 465-467. 
 DEATH, 
 
 injuries to persons resulting in, when actionable or indictable 
 
 under statutes, 256-263. 
 of consignee, duty of company to store goods in case of, 449. 
 
INDEX. 549 
 
 DEDUCTION OF BENEFITS, 206-212. 
 DEED, 
 
 when the company is capable of taking, 359. 
 (See Real Estate.) 
 DEFENCES, 
 
 of subscribers to the capital stock, 63-100. 
 
 non-payment of the first installment, 64-66. 
 
 full number of shares^ not taken, 67-70. 
 
 non-performance of condition as to location, 70-75. 
 
 fraud and breach of public duty, 75-77. 
 
 assignment of shares, 77. 
 
 neglect to make demand and notice, 77. 
 
 amendments of the charter, 78-100. 
 
 of the company against the holders of stock fraudulently 
 
 issued, 130-137. 
 against actions for injuries, 
 
 {See Injuries, Negligence.) 
 DELIVERY, 
 
 of goods to the company, 425-434. 
 by the company, 434—459. 
 DEMAND, 
 
 of installments of a subscription, 77. 
 
 DEPOSITARY, 
 
 liability of the company as, 428, 435-446, 448. 
 
 DIRECTOR, 
 
 agreement to pay for the services of, 396, 397. 
 
 DISTRIBUTION OF SHARES, 126. 
 DOMAIN, EMINENT, 
 
 (See Eminent Domain.) 
 
 E. 
 
 ELECTION OF OFFICERS, 
 
 when set aside, 5 n. 
 ELECTION OF LOCATION, 
 
 effect of, 218. 
 EMBANKMENTS, 
 
 right of the company to make, 13. 
 EMINENT DOMAIN, Right of, 
 
 derivation of, 147. 
 
 for what purposes to be exercised, 148-151. 
 
 may be delegated to a corporation, 149. 
 
550 INDEX. 
 
 EMINENT DOMAIN, Right of, continued. 
 
 when delegated by the State, the specific land to be appropri- 
 ated need not be designated by the legislature, 150. 
 subjects of the right, 151-161. 
 private property generally, 151. 
 public lands of the United States, 151. 
 franchises and property of corporations, 151-160. 
 incapacity of the legislature to divest the State of, 156. 
 quantity of estate condemned, 160, 161, 513. 
 compensation when to be made, 161-166. 
 mode of determining compensation, 166-171. 
 what injuries are to be compensated, 171-198. 
 injuries, to franchises, 172. 
 
 which are consequential, 173-175. 
 to lands on navigable waters, 175-178. 
 
 highways and streets, 178-184. 
 what are the subjects of compensation under the stat- 
 utes of the several States, 184-198. 
 evidence admissible to prove damages, 198-203. 
 damages, measure of, 203, 204. 
 
 award of, when set aside, 205, 206. 
 benefits, when and to what extent to be deducted, 206-212. 
 joinder of parties, 212, 213. 
 notice of proceedings to condemn property, 213. 
 general law of New Torh, 214. 
 
 (See Condemnation.) 
 
 ENGINEERS, 
 
 injuries to, 290, 294, 304. 
 
 negligence of, 302. 
 
 award of, in contracts between the company and contractors, 
 377-383. 
 EQUITY, 
 
 contracts for the sale of real estate enforced by, 142-146. 
 remedies in, at the suit of stockholders, 508, 509. 
 
 of land-owners, 609. 
 
 of creditors, 510, 530. 
 ESTATE, 
 
 quantity of, vested in the company by condemnation, 160, 161, 
 
 518. 
 when the title to, becomes vested upon a condemnation, 165, 
 
 214. 
 
INDEX. 551 
 
 ESTOPPEL, 
 
 of the company from denying its authority to do damage to a 
 
 land-owner, 169. 
 of the company from denying its capacity to make contracts, 
 
 395, 452. 
 EVIDENCE, 
 
 records of the company 'prima fade evidence that the full num- 
 ber of shares has been taken, 70. 
 parol, not admissible to vary a subscription, 72. 
 what kind of, admissible to prove the damages of a land-owner 
 
 whose property is injured by the company, 198-203. 
 opinions of witnesses, when admissible, 199-201. 
 of the value of adjoining lands, 201, 202. 
 of agents, 405. 
 burden of proof of negligence in injuries by fire, 314-317. 
 
 to cattle, 357. 
 
 to goods carried, 467, 
 468. 
 
 to passengers, 492, 493. 
 of performance of contract, 405. 
 of passenger as to items of luggage, 501, 502. 
 
 EXCAVATIONS, 
 
 right of the company to make, 13, 14-18. 
 
 EXCLUSIVE PRIVILEGES, 
 
 not implied, 12, 20-26, 154. 
 
 expressly conferred, 27-35, 156. 
 
 subject to the right of eminent domain, 151-160. 
 
 injunction against the violation of, 171. 
 
 EXECUTION, 
 
 whether railroad is subject to, 530. 
 
 EXEMPTION FROM TAXATION, 
 
 (See Taxation.) 
 EXPIRATION OP POWER, 
 
 to make a location, 219. 
 
 EXTENT OP POWERS, 
 
 (See Construction of Powers.) 
 EXTRA WORK, 
 
 claims of contractor for, 383-386. 
 
552 INDEX. 
 
 r. 
 
 FARE, I. 
 
 injuries to passengers not paying, 476-483. 
 lien on luggage for, 500, 459-461. 
 FENCES, 
 
 duty to build, may be imposed by the legislature, 41, 45, 358. 
 injuries arising from the company's neglect to make, 246. 
 company not required to build, at common law, 320-332. 
 liability for injuries to cattle under 'statutes requiring, 334, 
 
 335. '» - 
 
 duty to erect, when imposed only as to cattle lawfully on the 
 
 adjoining land, 337-344. 
 waiver of statutes requiring, 344, 345. \^ 
 
 when required, although the duty to erect is not imposed 
 
 expressly by statute, 346-351. 
 duty to erect, imposed by a special tribunal, 351, 352. 
 
 imposed by contract, 352, 353. 
 kind of, required by statute, 353, 354. 
 construction of statutes requiring, 354. 
 exceptions to statutes requiring, 355-357. 
 merger of contract to build, 404. 
 FERRY, 
 
 right of the company to own, 11. 
 liability of the company for passengers carried on, 488. 
 assignment of franchise of, 518. 
 FILING, 
 
 of location, 217. 
 FIRE, 
 
 communicated from the engines, liability of the company for, 
 
 depending on negligence, 311-314. 
 burden of proof of negligence, 314-317. 
 statute provisions imposing liability for injuries arising from, 
 317-319. 
 FORFEITURE, 
 
 of shares, declared by the company, 100-108. 
 
 power to declare, to be conferred by express grant, 
 11, 12. 
 by contractor of unpaid installments, 377-381. 
 {See Penal Actions.) 
 FORM, 
 
 of action, 234, 235, 358, 467, 505. 
 of contract, 369. 
 
INDEX. 553 
 
 FORMATION, 
 
 of a railroad company, 1-8. 
 
 general frame of charter, 3-7. 
 general laws in regard to, 7, 8. 
 FRANCHISES, 
 
 exclusive, not implied, 12, 20-27, 154. 
 
 when expressly granted, binding, 27-35, 156. 
 subject to the right of eminent domain, 151-160. 
 injunction against the violation of 171. 
 injuries to, to be compensated, 172. 
 
 compensation for, within the special remedy, 167. 
 FRAUDS, 
 
 by parties to a subscription, effect of, on the liability of a sub- 
 scriber, 73, 75, 76. 
 in the issue of shares of capital stock, 130-137. 
 statute of, in relation to contracts for the sale of real estate, 
 
 141, 371. 
 of owner of goods, carried by the company, 412, 413. 
 of the company in obtaining land for its right of way, 142, 170. 
 
 FREE PASSES, 
 
 liability of the company to holders of, 476-483. 
 
 FREIGHT TRAINS, 
 
 passengers on, liability of company for, 484, 485. 
 
 G. 
 
 GOODS, 
 
 liability of the company as common carrier of, 
 (See Common Carrier of Goods'.) 
 GRANT, 
 
 of exclusive privileges, to be strictly construed, 12, 20-27, 154. 
 binding, when expressly conferred, 27- 
 
 35, 151-160. 
 subject to the right of eminent domain 
 in the State, 151-160. 
 of lands to the company by the State, to be avoided in a direct 
 
 proceeding only, 141. 
 upon condition, 139. 
 
 when the company is capable of taking, 359. 
 GRATUITOUS PASSENGERS, 476-483. 
 
554 INDEX. 
 
 H. 
 
 HIGHWAY, 
 
 power of the company to interfere with, 10, 11, 215, 216. 
 railroad near or upon, whether a nuisance, 178-184, 247. 
 damages to land upon, 178-184. 
 
 injuries in collisions upon, liability of the company for, 264-272. 
 injuries to cattle upon, 332-334. 
 
 power of municipal corporations to authorize railroads upon. 
 178-184. 
 
 IMPLIED POWERS, 12-18. 
 INDICTMENT, 
 
 for a nuisance, 183, 232. 
 
 for obstructing a highway, 232. 
 
 for breach of public duty, 42, 232, 505. 
 
 for injuries resulting in death, 42, 259, 260. 
 INJUNCTIONS, 
 
 against the company at the suit of stockholders, 89, 398, 400, 
 
 508, 509. 
 of land-owners, 509. 
 
 against the violation of franchises, 171. 
 INJURIES, 
 
 to landowners to be compensated, 171. 
 
 what, included in the special remedy, 168. 
 
 consequential, 173, 222. 
 
 to franchises, 172. 
 
 to lands lying on navigable waters, 175-178. 
 on highways, 178-184. 
 
 to be compensated under special statutes of the States, 184- 
 198. 
 
 evidence of, 198-208. 
 
 compensation for, how measured, 203, 204. 
 
 when to be offset with benefits, 206-212. 
 
 liability for, at common law, how measured, 220-222. 
 enlarged by statute, 223. 
 
INDEX. 555 
 
 INJURIES, continued. 
 
 damages when recoverable exclusively by the statute remedy, 
 
 166-171, 223-231. 
 when authorized by the charter, within the special remedy, 
 
 224-228, 168. 
 
 when not authorized by the charter, actionable at common law, 
 
 228-230, 169. 
 special remedy not exclusive when the company neglects an 
 
 obligation to resort to it, 230. 
 under color of legislative authority not authorized by the State 
 
 constitution, 231. 
 penal action for, 231. 
 
 of servants, liability of the company for, 232-234. 
 willful injuries by, 233, 254. 
 form of action against the company for, 234, 235. 
 of contractors and their servants, liability of company for, 235- 
 
 242. 
 what makes a servant, so as to render the company liable for 
 
 his torts, 242-244. 
 by lessees, liability of the company for, 244. 
 to persons on its trains, by its breach of public duty, without 
 
 a privity of contract, 244, 245. 
 to persons unlawfully on its trains, 245, 484. 
 nuisances, 245-248. 
 
 when railroads are, 246-248. 
 infraction of patent right, 248. 
 to passengers in enforcing the regulations of the company, 
 
 248-254, 490-492. 
 to persons, resulting in death, 256-263. 
 
 not actionable at common law, 256. 
 actionable or indictable under stat- 
 utes, 257-260. 
 measure of damages, 261, 262. 
 statute remedy confined to injuries 
 which would have been actionable, 
 if not fatal, 262, 263. 
 to persons not in privity with the company, 264-285. 
 in collisions, where both parties are exercising a right, 264 - 
 
 272. 
 same degree of diligence required of railroad companies as of 
 
 other carriers, 265-269. 
 injuries by fright of animals, 270-272. 
 
556 INDEX. 
 
 INJURIES, continued. 
 
 precautions required by statute, 272, 277. 
 negligence of injured party, 272-278. ^ 
 
 of children and disabled persons, 278-^282. 
 a question of fact, 282-284. 
 to trespassers, 284, 285. 
 
 to servants from negligence of fellow-servant, 286-319. 
 general rule exempting the company from liability to a servant 
 
 for the negligence of a fellow-servant, 289-293. 
 or from defects in the road and its appointments, 294. 
 liability of company for negligence in employing incompetent 
 
 servants, 295-297. 
 negligence of the injured servant, 298. 
 to a servant not at the time in the master's service, 298. 
 to slaves, 299. 
 
 when the relation of fellow-servant subsists, 299-305. 
 to servants from the negligence of a superior servant, 305, 307. 
 to servants from the negligence of the company as distinct 
 
 from that of its servants, 307-310. 
 to property hy fire, 311-319. 
 liability of the company for, depending on negligence, 311- 
 
 314. 
 burden of proof of negligence, 314-317. 
 statute provisions imposing liability for, 317-319. 
 to cattle, 320-358. 
 liability for, at common law, whether arising from negligence 
 
 320-332. 
 to cattle on the highway, 332-334. 
 at farm crossings, 333. 
 liability for, under statutes, 334, 335. 
 wrongful act of plaintiff, 336. 
 when wrongfully on the adjoining land, 337-344. 
 waiver of statute requiring fences, 344, 345. 
 when the company is bound to fence without being required 
 
 by statute, 346-351. 
 duty to fence, imposed by a special tribunal, 351, 352. 
 
 by contract, 352, 353. 
 kind of fence required, 353. 
 
 construction of statutes imposing duty to fence, 354. 
 exceptions to statutes, 355, 357. 
 
 negligence of the company a question for the jury, 357. 
 burden of proof of negligence, 357. 
 
INDEX. 557 
 
 INJURIES, continued.. 
 
 form of action, 358. 
 
 power of the legislature to require the company to build 
 fences, 358. 
 
 (See Remedies.) 
 
 to cattle carried in its trains, 462, 463. 
 to passengers. 
 
 (See Common Cakrier of Passengers.) 
 INSTALLMENT, 
 suits for. 
 
 (See Subscriptions to the Capital Stock.) 
 non-payment of the first, 64-66. 
 INTEREST, 
 
 when allowable damages for land taken, 205, note. 
 ISSUE AND TRANSFER OF SHARES OF CAPITAL STOCK, 
 shares personal property, 127. 
 
 sale of, when not belonging to the vendor, 127. 
 damages for breach of contract to sell, 128. 
 mode and effect of assignment of, 77, 128, 129. 
 fraudulent issue of stock, when the company liable for, 
 130-137. 
 
 JURISDICTION, 
 
 of federal courts, 504, 505. 
 JURY, 
 
 trial by, whether required in assessing the damages to a land- 
 owner, 166, 167, 224. 
 
 negligence, a question of fact for, 283-284, 357. 
 
 LANDOWNER, 
 
 injuries to, when and how compensated, 166-198. 
 
 (See Condemnation, Eminent Domain.) 
 contract by the company with, 138-146. 
 
 (See Purchase op Real Estate.) 
 LEGISLATURE, 
 
 power of, over the company, 19-46. 
 
 (See Power of Legislature over the Company.) 
 contracts to influence, 391-395. 
 
558 INDEX. 
 
 LETTER, 
 
 contracts by, 366, 367. 
 LETTERS PATENT, 
 
 granting land to the company, 141. 
 LIABILITY OP COMPANY AS COMMON CARRIER, 
 
 (See Common Carrier of Goods, Common Carrier of Passengers.) 
 
 LIEN, 
 
 of the company on goods, 459-461. 
 
 luggage for passenger's fare, 500, 459-461. 
 LIVE STOCK, 
 
 injuries to, 320-358. 
 
 (See Cattle.) 
 
 transportation of, by the company, 462, 463. 
 LOCATION OF THE ROAD, 
 
 route and termini authorized by charter, 215-217. 
 
 filing of 217, 218. 
 
 change of, when authorized, 218, 219. 
 
 power to change, strictly construed, 12, 218, 219. 
 
 expiration of power to make, 219. 
 
 rights of land-owner on a chaDge of, 219. 
 
 alteration of, when a defence in a suit against a subscriber, 
 78-100. 
 
 injunction against change of, 85-93. 
 
 contracts in relation to procuring, 394. 
 LOG ROLLING, 
 
 contracts for, unlawful, 391-395. 
 LUGGAGE OF PASSENGER, 
 
 liability of the company for, 495. 
 
 what may be included in, 496, 497. 
 
 when liability of the company for, begins and ends, 425-134, 
 448, 458, 498, 499. 
 
 notices and contracts limiting liability for, 499, 500, 415-424. 
 
 lien on, 500, 459^61. 
 
 burden of proof in case of loss of, 500, 501, 467, 468. 
 
 testimony of passenger as to items of, 501, 502. 
 
 LUNATICS, 
 
 negligence of, 278-282. 
 
INDEX. 559 
 
 M. 
 
 MANDAMUS, 506, 507. 
 MASTER AND SERVANT, 
 
 (See Servants.) 
 MEASURE OF LIABILITY, 
 
 of common carrier of goods, 409. 
 
 passengers, 469-476. 
 MERCHANDISE, 
 
 liability of the company as common carrier of, 
 (See Common Carrier of Goods.) 
 MERGER, 
 
 of contract, 404. 
 MORTGAGES, 
 
 on the property and franchises, capacity of the company to 
 
 make, 511. 
 when after acquired property included in foreclosure of, 530. 
 right to foreclose, notwithstanding power of sale included in, 
 
 531. 
 joinder of bondholders in suit for foreclosure of, not necessary, 
 532. 
 MUNICIPAL CORPORATIONS, 
 
 subscriptions by, to the capital stock of a railroad company, 
 
 when valid, 108-126. 
 power of, to authorize a railroad to be constructed upon their 
 streets, 178-184. 
 MUTUALITY OF OBLIGATION, 361-367, 171. 
 
 N. 
 
 NAVIGABLE WATERS, 
 
 power to obstruct, to be expressly given, 11. 
 damages to lands lying on, 175-178. 
 
 NEGLIGENCE, 
 
 of party killed, a defence to an action for the fatal injury under 
 
 statutes, 262. 
 of injured party, when a defence to an action, 272-278. 
 of children and disabled persons, 278-282. 
 a question of fact, 282-284, 357. 
 of the company in obtaining proper fellow-servants and 
 
 machinery, 286-310. 
 
560 INDEX. 
 
 NEGLIGENCE, continued. 
 
 of injured servant, 298. 
 
 causing fires, 311-319. 
 
 burden of proof of, in injuries by fire, 314-317^ /I 
 
 to cattle, 357./ 
 
 of the owner of cattle injured, 322, 323, 3&6, 348-350. 
 
 of the company, resulting in injuries to cattle, 321-332, 347- 
 350. 
 
 when a proximate and a remote cause of injury, 348, 349. 
 
 liable for, in the carriage of goods, notwithstanding a special 
 contract, 421, 422. 
 
 degree of, making the company liable in the carriage of pas- 
 sengers, 469, 470. 
 
 of passenger, 475. 
 
 different degrees of, 476-478. _ . ' \ 
 
 in injuries to passengers traveling free, 476-483. 
 
 NEGOTIABLE BONDS, 
 
 (See Bonds.) 
 
 NEGOTIABLE PAPER, 
 
 (See Promissory Notes and Bills op Exchange.) 
 NOTICE, 
 
 of installments due on a subscription, 77. 
 
 of proceeding to condemn property, 213, 214. 
 
 limiting the liability of the company as common carrier, 415- 
 
 424. 
 of delivery of goods to the company, 426. 
 by the company to consignees, of arrival of goods, 449-451. 
 
 NUISANCES, 
 
 liability of the company for, 245-248. 
 when railroads are, 178-184, 248. 
 indictment of, 183, 232. 
 
 o. 
 
 OFFICERS, 
 
 election of, when set aside, 5 n. 
 
 compensation of directors, 396. 
 OFFERS, 
 
 on time, 364, 365. 
 OPINIONS, 
 
 of witnesses, when admissible as evidence, 199-201. 
 
INDEX. 561 
 
 P. 
 
 PARTIES,. 
 
 joinder of, in assessing damages to land-owners, 212, 213. 
 entitled to sue for breach of duty as common carrier, 464, 
 485-488, 
 PASSENGERS, 
 
 (/See Common Carriers of Passengers.) 
 PATENT, LETTERS, 
 
 granting lands to tjhe company to be impeached in a direct 
 proceeding, 141..' 
 PATENT RIGHT, 
 
 infraction of, by the company, 248. 
 PENAL ACTION, 42, 231, 505. 
 
 PERFORMANCE OP CONTRACT, 
 
 evidence of, 405. 
 POLICE LAWS, 
 
 not a violation of the charter, 40-46. 
 POWERS OF THE COMPANY, 
 
 construction and extent of, 9-18. 
 
 (See Construction of Powers.) 
 
 to make contracts, 395-404, 452. 
 
 to change location, 12, 218. 
 
 expiration of power to make a location, 219. 
 
 to interfere with the highway, 10, 11, 216, 247. 
 
 to take private property, 
 
 (See Condemnation.) 
 
 to mortgage its property and franchises, 511-530. 
 
 POWER OF THE LEGISLATURE OVER THE COMPANY, 
 limited by the U. S. constitution, 19. 
 the charter, a contract, 19, 20. 
 what impairs the obligation of the contract, 20. 
 exclusive privileges, not implied, 20-26. 
 
 sustained when expressly conferred, 27-35. 
 exemption from taxation, 35, 36, 47. 
 
 reservation of legislative power in the charter, 36-39, 93-100. 
 what rights protected by the constitution, 39, 40. 
 to impose police laws, 40-46, 358. 
 
 to alter the contract between the company and the subscribers, 
 prohibited, 20, 70, 78-100. 
 37 
 
562 INDEX. 
 
 PROMISSORY NOTES AND BILLS OF EXCHANGE, 
 consideration of, when inquirable into, 368. 
 capacity to make, 372, 373. 
 
 PROOF, BURDEN OF, 
 
 in injuries by fire, 314-317. 
 to cattle, 357. 
 
 to goods carried by the company, 467, 468. 
 to passengers, 492, 493. 
 (See Evidence.) 
 
 PUBLIC LANDS OF THE UNITED STATES, 
 subject to right of eminent domain, 151. 
 
 PUBLIC DUTY, 
 
 breach of, indictable, 42, 232, 505. 
 
 liability of the company for, without privity of con- 
 tract, 244, 245, 464, 487. - 
 of the company as a common carrier, 413, 464, 487, 489. 
 PURCHASE OF REAL ESTATE, 
 
 (See Real Estate.) 
 
 Q. 
 
 QUO WABRANTO, 507, 508. 
 
 R. 
 
 RAILROADS, 
 
 law of, 
 (See Table op Contents in the first part op the Volume.) 
 REAL ESTATE, 
 
 power to make purchase of, 13, 138, 401. 
 
 construction of conveyance of, 138, 139. 
 
 conveyance of, upon conditions precedent and subsequent, 139- 
 141. 
 
 letters patent granting lands to the company, 141. 
 
 damages for breach of contract to convey, 141. 
 
 contract to convey, within the statute of frauds, 141, 371. 
 
 right to, enforced in equity, 142-146. 
 
 acquisition of, by condemnation, 147-215. 
 
 when the company is capable of taking a deed of, 359. 
 (See Contracts.) 
 
' INDEX. 563 
 
 REGULATIONS OF PASSENGERS, 
 
 enforcement of, by the company, 248-254, 490-492. 
 
 REMEDIES, 
 
 of the company against subscribers to the capital stock, 100- 
 
 108. 
 of the stockholder to restrain the company from departing 
 
 from the purposes of its charter, 85, 508, 509. 
 mandamus by the company against a municipal corporation, 
 
 124,507. 
 for assessing damages to the land-owner, 166-171, 507. 
 when exclusive, 168-171, 223-231. 
 of relatives of persons killed through the negligence of the 
 
 company, 256-263. 
 form of action for injuries by servants, 234, 235, 358. 
 consolidation of companies, effect of, on, 503. 
 enforcement of subscriptions, 100-108, 504. 
 jurisdiction of federal courts, 504. 
 form of action, 505. 
 penal actions, 231, 505. 
 indictment, 805. 
 
 for assessment of damages to land-owner, 505, 506. 
 by injunction, 85, 171, 508-510. 
 by mandamus, 506, 507. 
 by scire facias and quo warranto, 507, 508. 
 in equity, 508-510, 530. 
 personal liability of stockholders, 510. 
 of mortgages, 531. 
 
 RESERVATION, 
 
 of power in the legislature to alter or repeal the charter, 36- 
 
 39, 93-100, 508. 
 
 REPEAL OP CHARTER, 
 
 power of, reserved by the legislature, 38, 39. 
 
 RIGHT OP WAY, 
 
 obtained by purchase, 138-146. 
 
 (See Real Estate.) 
 obtained by condemnation, 
 
 (See Condemnation, Eminent Domain.) 
 
564 INDEX. 
 
 s. 
 
 SCHUYLER FRAUD, 130-137. ,-- 
 
 SCIRE FACIAS, 507, 508. 
 
 SERVANTS, 
 
 liability of the company for the torts of, 232-234. 
 
 torts of, in violation of the charter, 234. 
 
 form of action against the company for torts of, 234, 235. 
 
 of contractors, liability of the company for the torts of, 235- 
 
 242. 
 of the company, who are, 242-244. 
 willful injuries by, 233, 254. 
 » injuries to, from negligence of fellow-servants, when the com- 
 
 ' pany is liable for, 286-310. 
 injuries to, from defects in the road, 294. 
 
 from negligence of the company in employing im- 
 proper servants, 295-297. 
 to which their own negligence contributed, 298. 
 when the relation of fellow-servant subsists, 299-305. 
 injuries to, from the negligence of a superior servant, 305-307. 
 injuries to, from the negligence of the company as distinct from 
 that of its servants, 307-310. 
 (See Agents.) 
 SHARES OF THE CAPITAL STOCK, 
 subscriptions for, 56-126. 
 
 (See Subscriptions to Capital Stock.) 
 issue and transfer of, 127-137. 
 distribution of, 126. 
 personal property, 127. 
 
 sale of, when not belonging to the vendor, 127. 
 damages for breach of contracts for the sale of, 128. 
 assignment of, mode and effect of, 77, 128, 129. 
 fraudulent issue of, 130-137. 
 agreement of contractor to receive payment in, 389. 
 SLAVES, 
 
 injuries to, 299. 
 SPARES, 
 
 injuries arising from, 311-319. 
 SPECIAL CONTRACTS, 
 
 limiting the liability of a common carrier, 415-422, 499. 
 
index. 565 
 
 STATUTES, 
 
 providing compensation to land-owners whose property is 
 
 injured by a railroad company, 184-198. 
 remedies of relatives of deceased parties receiving fatal injuries, 
 
 provided by, 257-263. 
 precautions required by, do not dispense with the use of others 
 
 which are required in the exercise jof proper care, 272, 277. 
 imposing liability for injuries arising from fire, 317-319. 
 imposing obligation to fence, power of the legislature to enact, 
 
 41, 45, 358. 
 effect of, on the liability of the 
 company for injuries to cattle, 
 334-344. 
 ,'~~ waiver of benefit of, 344, 345, 
 
 / 346. 
 
 what kind of fence required by, 
 
 353. 
 construction of, 354. 
 exceptions to, 355-357. 
 of frauds, 141,371. 
 STOCK, 
 
 agreement of contractor to receive, in payment of work, 389. 
 transfer of, 
 
 (See Issue and Transfer op Shares of Capital Stock.) 
 subscription to, 
 
 (See Subscriptions to Capital Stock.) 
 STOCKHOLDER,' 
 
 how made, 56-63. 
 
 liability of, as a subscriber to the capital stock, 56-108. 
 
 (See Subscriptions to Capital Stock ) 
 injunctions against the company at the suit of, 85, 398, 400, 508, 
 
 509. 
 assignment of shares by, 
 
 (See Issue and Transfer op Shares.) 
 personal liability of, 510. 
 STORAGE, 
 
 of goods, duty of the company to make, 448. 
 
 liability of the company for, 428, 435-446, 448. 
 STREETS, 
 
 railroads upon, when not a violation of private right, 178-184- 
 
 SUB-CONTRACTOR, 
 
 agreement between contractor and, 379. 
 liability of company to, 387. 
 
566 INDEX. 
 
 SUBJECT-MATTER, 
 
 of contracts, 375-395. 
 
 SUBSCRIBER, 
 
 (See Subscriptions to Capital Stock.) 
 
 SUBSCRIPTIONS TO CAPITAL STOCK, 
 what acts amount to, 56-63. 
 mode of manifesting an assent to make, 56-58. 
 when the paper containing, is an escrow, 59. 
 before the incorporation or organization of the company, effect 
 
 of, 59, 60. 
 under special provisions of statutes, 61, 62. 
 under the general act of New York, 63. 
 defences m suits upon, 63-100. 
 
 non-payment of first installment, 64-66, "" * y" \ 
 
 full number of shares not taken, 67-70. 
 non-performance of condition requiring a certain location, 
 
 70-75. 
 the condition required to be in writing in order to be a de- 
 fence, 73. 
 construction of written conditions, 75. 
 fraud and breach of public duty, 75-77. 
 assignment of shares, when it relieves the assignor from, and 
 
 subjects the assignee to liability, 77. 
 demand and notice, when conditions precedent to a suit for 
 
 installments, 77. 
 amendments of the charter, changing the location and making 
 
 fundamental changes from the original purpose, 78-100. 
 remedies for collecting, 100-108. 
 
 remedy by sale, cumulative and not exclusive, 100, 101. 
 whether the subscriber is personally liable without an express 
 
 promise, 101-107. 
 enforcement of a forfeiture, a bar to a suit unless otherwise 
 
 provided by statute, 107. 
 provisions of statutes, giving a right to sue after a forfeiture 
 
 declared, or prescribing the mode of collecting installments, 
 
 to be complied with, 107, 108. 
 forfeiture declared by the company in pursuance of a by-law 
 
 without a special power, not valid, 11. 
 by municipal corporations, 108-126. 
 validity of, when the power to make them is conferred by the 
 
 legislature, 108-115, 120. 
 
INDEX. 56*T 
 
 SUBSCRIPTIONS TO CAPITAL STOCK, continued. 
 
 validity of a clause, authorizing the question of making the 
 subscription to be submitted to a popular rote, 116-120. 
 
 construction of a railroad, when a "county or corporation 
 purpose," 122. 
 
 effect of provision in the law, entitling the tax-payer to a por- 
 tion of the stock, 123. 
 
 void, when the law authorizing them is not complied with, 123. 
 
 power of a county court in Kentucky to set aside a subscrip- 
 tion, 124. 
 
 mandamus by the company to enforce its rights, 124, 507. 
 
 confirmation of a municipal subscription by the legislature, 
 124. 
 
 constitutional restrictions against, 125, 126. 
 
 distribution of shares, 126. 
 
 consideration of, 109, 369. 
 
 SWITCH, 
 
 injuries through mismanagement of, 290, 474. 
 
 TAXATION, 
 
 of the company, grant of exemption from, when binding and 
 how construed, 12, 35, 36. 
 
 permanent by grant, when created, 47-49. 
 temporary, by statute, 49. 
 constructive, by statute, 49-54. \ 
 
 rule governing the assessment of taxes on the company, 54, 55. 
 by municipal corporations, for subscriptions to the capital 
 stock of a railroad company, 108-126. 
 
 TERMINUS, 
 
 of the road, 
 
 (See Location.) 
 liability of the company for goods carried beyond, 452-458. 
 for passengers carried beyond, 485, 452-458. 
 
 TICKET, 
 
 passenger required to surrender or exhibit, 253, 254, 491. 
 through ticket not entitling the passenger to leave the train at 
 an intermediate station and resume his journey in another 
 by virtue of the same ticket, 253, 491, 492. 
 
568 IOT3EX. 
 
 TIME, 
 
 offers on, 364. 
 
 within which the company is bound to transport goods, 411, 
 412. 
 TOLLS, 
 
 power to take, to be expressly conferred, 12. 
 
 power to mortgage, 511-530. 
 
 TORTS, 
 
 (See Injuries.) 
 TRANSFER OP SHARES, 
 
 (See Issue and Transfer of Shares of Capital Stock.) 
 TRANSPORTATION, 
 
 of goods and passengers, 
 
 (See Common Carrier, &c.) 
 TRESPASSERS, 
 
 injuries to, 284, 285. 
 
 injuries to cattle of, 321-334, 336-344. 
 
 on passenger trains, 484. 
 
 TRIAL BY JURY, 
 
 whether required in assessing the damages to a land-owner, 
 
 166, 167, 224. 
 TROVER, 
 
 action of, for loss of goods, 467. 
 
 TURNPIKE COMPANIES, 
 
 when entitled to compensation for injuries to their franchise or 
 property, 22, 173. 
 
 (See Condemnation, Eminent Domain.) 
 when they may be interfered with by a railroad company, 10, 
 11, 215, 216. 
 
 u. 
 
 UNLAWFUL CONTRACTS, 390-395. 
 
 V. 
 
 VESTING OP ESTATE, 
 
 when it takes place upon land being condemned for the pur- 
 poses of the company, 165, 214. 
 
INDEX. 569 
 
 W. 
 
 WAIVER, \ 
 
 of statute imposing the duty to fence on the company, 344, 
 
 345. \ 
 of common carrier's liability as quasi insurer, 415-424. 
 
 WAREHOUSEMAN, "%■ 
 
 when the company is liable as, 428, 435-446, 448. 
 
 WRONGDOERS, 
 
 injuries to, 284, 285. 
 
 injurierto cattle of, 321-334, 336-344. 
 
 on passenger trains, 484. 
 
 38