1 1 Supreme ^CÇourt. hillsborough county. december law term, 1895 1 PETITION KJr I'uiu Milford and Manchester Railroad. OPENING ARGUMENT FOR THE BOSTON AND MAINE RAILROAD BY OLIVER E. BRANCH, December ii, 1895. j i 1 1 1 i CHARLES F. COLBY, C. A. DOLE, 1 CHARLES MCDANIEL, Referees. | 1 1 HE 1 MANCHESTER. X771 PRINTED BY THE JOHN B. CLARKE CO. .n 4-87/ 1895. s Iwpreme ;CÍ^ourt • t hillsborough county. december law term, 1895 PETITION OF THE Milford and Manchester Railroad. OPENING ARGUMENT FOR THE BOSTON AND MAINE RAILROAD BY OLIVER E. BRANCH, December ll, 1895. CHARLES F. COLBY, C. A. DOLE, CHARLES McDANIEL, Referees. MANCHESTER. PRINTED BY THE JOHN B. CLARKE CO. 1895. «premí €anxt HILLSBOROUGH COUNTY. PETITION OF THE MILFORD & MANCHESTER R. R. 'OPEOTÎTG ARGUMENT FOR THE BOSTON & MAINE RAILROAD. BY OLIVER E.-BRHNCH. Jlr. Chairman and Gentlemen : In March, 1895, forty-eight persons, a majority of whom are residents of this state, signed articles of association under the general law, under the name of the " Milford & Manches¬ ter Railroad Company," for the purpose of constructing and operating a railroad from Milford to Manchester, and sub¬ scribed for capital stock aggregating |320,000. Of this, the sum of $1,300 was subscribed by thirteen citizens of Manches¬ ter, $66,000 by five citizens of Cambridge, Mass., $58,000 by thirteen citizens of Amherst, $20,000 by two citizens of Mil¬ ford, $95,000 by seven citizens of Ilollis, $1,500 by Jive citizens of Bedford, $2,000 by two citizens of Pepperell, and $43,200 by Samuel S. Hittinger of Townsend, Mass. Each of the subscribers agreed in good faith to take the number of shares of the capital stock set opposite his name, and to pay the par value thereof for the purpose of building the road. The arti¬ cles of association were filed in the office of the secretary of state'on the 14th day of March, 1895, and on the 19th day of March, 1895, they filed in the office of the clerk of the supreme court for the county of Hillsborough a petition setting forth 4.he facts of their organization, and asking for a decision of 4 the question whether " the public good " requires the build¬ ing of the proposed road. At the last adjourned law term of the supreme court the petition was referred td you, to find and report the facts bearing upon the petition ; and as I under¬ stand the law, the supreme court at the law term, upon tho facts which you shall report, will decide the question raised by the petition. There are two questions of importance and in controversy,, there being, as I take it, no issues raised as to the preliminary steps to organize the provisional corporation, and the regu¬ larity of their proceedings. These questions are, first : Has the capital stock been subscribed by responsible parties in good faith with the intention of building the road ? Second,. Does the public good require the proposed road ? A majority of the subscribers have appeared as witnesses,, but of those only three, Mr. Hittinger, Mr. Worcester, and Mr. Eotch, have given any evidence as to their intention to- build the road, and neither of these gentlemen ventured to say that he expected to pay in a single dollar upon his sub¬ scription, or that he had any expectation whatever that he would ever be called upon to do so. What the intention and the expectation of the other subscribers are who did not ap¬ pear, or who appeared and testified, there is no evidence. It is safe to assume that they are in precisely the same position as Mr. Hittinger and Mr. Worcester and Mr. Rotch. They, too, have subscribed as a mere form ; they do not expect ever to pay a dollar for stock, or to receive any stock ; they have no intention whatever of building the road, and whatever they have done has been upon the understanding that the road would be built and operated by the Fitchburg Railroad. THE KEAL PARTY. Early in the hearing it was suggested that the I'eal party here is the Fitchburg road, and the suggestion was resented with some apparent warmth by the counsel for the petitioners. But when you consider the admission finally made by Brother Toplifi, that he " expects that the road will be built by the Fitchburg," and the virtual admissions to the same effect of the main promoters of the enterprise, Messrs. Hittinger and Worcester, and the fact that throughout this hearing the pe- 5 titioners and all their witnesses have testified upon the as¬ sumption that the road was to become part of the Fitchburg system, it would seem that our position that such was the fact Fas been amply sustained, and the naive assurances of counsel that they knew nothing of the Fitchburg road in the case, and their protestations of surprise and indignation at the .sugges¬ tion, seem now somewhat ridiculous and futile. We shall, therefore, ask you, gentlemen, upon the evidence in this case to report among other facts these : That the associates have not subscribed for the stock in good faith with the intention •of building the road ; that the real party in interest is the Fitchburg Railroad ; and that the purpose of the petitioners is the extension of the Fitchburg Railroad from its terminus at Milford to Manchester. We say that these facts are beyond any sort of reasonable doubt or controversy. That when you •consider how the successive links in the line between Groton iind Milford have already been built, the right to do which had been granted to Rew Hampshire corporations by the legisla¬ ture, upon the representations that they were to be built by those corporations and by Hew Hampshire men ; that those ■charters have been used invariably in the interest of the Fitch¬ burg road ; that not a dollar of capital was actually paid in by the corporators ; that they were built with the money of the Fitchburg road ; that if this application is granted, the Fitch¬ burg stands in such a position as to compel the petitioners, •even if they did not intend to do so, to transfer the franchise to it, and that they all hope to do so, can you doubt that this is their intention and has been from the beginning ? Who believes for one second that Mr. Hittinger would draw his check for |43,200, Mr. Worcester for $45,000, Mr. Rotch for $30,00,0, Mr. Gass for $35,000, and S. A. Worcester for $15,- 000 for the purpose of building this road and relying upon its -own local resources and taking their chances upon an unprof¬ itable enterprise? The evidence is that Mr. Worcester and Mr. Hittinger, when they obtained their first charter, at once •opened negotiations with the Concord road, and afterwards with the Fitchburg, looking to a guaranty of five and one half per cent upon the stock. They never have done a thing indi¬ cating an intention ever to risk a dollar of their own money in building railroads, or any other intention than to have them 6 built by the Fitchburg Railroad, with its money and without their risking a single copper in the enterprise. They do not intend to do so now ; neither do their associates. The dis¬ guise may as well he thrown off, and the solemn pretensions- that this is a contest of 100,000 or more of the people against the Boston & Maine Railroad may as well he abandoned. It is time the petitioners confessed that this is a conflict between a semi-bankrupt Massachusetts railroad corporation on the one hand and the railroads of New Hampshire on the other,, and that the effort of the Fitchburg Railroad to get in to Man¬ chester is a somewhat hunglingattempt to imitate the episode- of the. Trojan horse. WHY THE BOSTON & MAINE OPPOSE. This application is opposed by the Boston & Maine Rail¬ road, and there have been more or less intimations that, he- cause it thus opposed, the merits of the petition were there¬ by in some mysterious fashion intensified ; that the oppo¬ sition of that road is to he discredited and condemned because it is a large corporation having large interests in this state- But, gentlemen, has it come to this, that a railroad must not protect its own interests ? that it must not attempt to pre¬ serve its business ? that if it does so it is to he charged with arraying itself against the people ? Such talk would sound well enough from the lips of an anarchist. It does not he- come a proceeding in a judicial tribunal, nor harmonize well with the traditions of a state whose constitution and hill of rights are rooted in the soil of Magna Charta. The Boston & Maine road appears here, as it has elsewhere, because it be¬ lieves its interests are threatened. It is moved by the deter¬ mination, which the law always justifies in the individual or the coi'poration, to protect itself and the interests of its thou¬ sands of stockholders and those of leased lines. Is it to he con¬ demned for that, and shall the statement go unchallenged any longer, that this proceeding means the interests of 100,000 people of the state on the one side, and the reckless, defiant,, and tyrannical disposition of a New Hampshire corporation to deprive them of their privileges on the other ? There have- been some suggestions here and elsewhere that the Boston & Maine Railroad claimed to " own " the city of Manchester and 7 the territory contiguous to it. My brother Taggart becamo very indignant at the hearing before the legislature, because, as he asserted, it had been said that this section of the state " he- longed to the railroads." No such assertion was made there or elsewhere, and if my brother Toplitf had read the evidence a little more carefully, to which he has so often referred, he would have discovered that fact. "We there asserted, as we do here, that so long as the transportation business of Man¬ chester is being done to the entire satisfaction of the people,, without any complaints of any serious consequence, (and which, the railroads have been largely instrumental in creating, have the ability to do and have invested extraordinary amounts in preparation for doing), relying upon the reasonable pre¬ sumption that they would be required to do so, that it is in¬ equitable and unfair that that business should be taken away from them, at a vital point, by a corporation that has no especial claim upon the people of the state, that never did anything^ for its interests of importance ; a corporation in which the peo¬ ple of the state have no concern comparable for a moment to that which they have in the business and prosperity of the Boston & Maine Eailroad ; and that for these reasons the busi¬ ness naturally and equitably belongs to it to do, as much as the commercial business of the city of Manchester belongs to the merchants and traders of that city to do. It is a frequent occurrence in this state that soon after the first day of April, some vagrant, itinerant trader comes into Manchester and other cities, with a bankrupt stock of goods, and immediately puts himself in unfair and detrimental competition with the resident and established merchants. What do Mr. Hill and the other Manchester merchants who have appeared in this hearing think of competition of that kind ? How do they like it ? My recollection is that some of them have more than once appeared at Concord seeking legislation to prevent it. And they argued that, having invested their property in Man¬ chester, made preparations for doing business, and helped to build up the town, that the trade of the city belongs to them, not in any baronial or proprietary sense, but in equity and good conscience and fair dealing as between man and man. And so we say that so long as the existing roads of the state do the business of the state with substantial satisfaction to the 8 entire people, and have the immediate and future ability to do it, having invested enormous amounts of capital for the purpose of providing the facilities for doing it, and affording the best accommodations for it, that that business belongs to them to do as against the attempts of an outside corporation to deprive them of it; and I venture to say that here, at least, the attempt to make our claims in that respect appear to he the demands of a domineering or arrogant corporate spirit, will be set down as an exhibition of mere demagogy, or as a theatrical bid for applause. WHO WILL BE BENEFITED. We deny the proposition that this proposed road con¬ cerns, or is demanded by the interests of any considerable number of the people ; and we further deny the legal right or the delegated authority of the witnesses who have appeared here to speak for any considerable number of the people aside from themselves. It is conceded that the road if built would be a convenience, in a small way, to some of the inhabitants along its line; that it would undoubtedly divert from Milford and Nashua, relatively, a considerable trade, and to that ex¬ tent would be of advantage to the traders of Manchester, and, in so far as that trade would help them, that, remotely, it might help the entire city ; but as a practical result it would not be of the least advantage to any except a few. When Judge Smith says that this road affects the interests of 100,000 or 150,000 people in the southwest part of the state and Massa¬ chusetts, it is true in just the same sense as it is true, as a mathematical proposition, that a baby cannot turn in its crib without moving the globe, or that the shout of a boy produces a disturbance of the air which is felt to the utmost limits of space. How will it affect the eighteen or twenty thousand people who toil in the mills of this city, the clerks, shop¬ keepers, machinists, artisans, and citizens generally if the road is built, or not built ? Probably not one in 500 of them would ever use it or care to use it. How many of the people of Temple, New Ipswich, Nashua, Keene, Peterborough, or Greenville would receive any appreciable benefit from it? Not one in a hundred. Occasionally some one probably might get to Manchester from that portion of the state a little quicker 9 than by the present facilities if the connections were right at Milford, hut I venture to say that you must see that such in¬ stances would be extremely rare. There is no evidence, and none can he produced, that the price of anything which is used or consumed in this city would be reduced, or the oppor¬ tunities for doing business here improved by opening markets •or atfording facilities that are not already substantially in the possession of the business interests of the city. Possibly Mr. Varick might sell a little more hardware than he does; pos¬ sibly those enterprising dealers, Cushman & Hard}', might sell some more clothing; possibly there might be some more furni¬ ture sold in Bedford or Amherst or Milford, but I venture to say that Mr. Varick and Cushman & Hardy and Mr. Josselyn and other wholesalers and jobbers here, have not in fact been kept out of any business in their lines worth having ; and that if this road were buiit they could not in the nature of the problem, as I shall soon show, derive any great advantage from it. And why ? The trade of Bedford already comes here. Amherst is a town of 1000 inhabitants, an agricultural town, having no manufactures, and, upon the evidence, with no prospect of an^-. Milford is a town of 3000 inhabitants, and I apprehend its merchants would undertake to hold at least the bulk of the trade. Wilton, Greenville, Lyndeborough, Peterborough, Keene, Mason, Temple, and Hew IpsAvich are too far re¬ moved from Manchester to have any natural community ■of interest and business connections, and could not be reached by this road except by change to the Boston & Maine, so that no time would be gained. The fact is, business localizes itself everywhere, and it cannot be expected that Manchester can absorb the patronage of the towns and villages in the south¬ west part of the state. The aggregate amount of local busi¬ ness Avhich it would attract over this road would be enough to be perceptible to the local traders from Avhoin it was taken, but when you come to distribute that around among all the merchants of this city who it is said will be benefited by it, it is mathematically certain it would be almost inappreciable to them. Is it not absurd to assume that enough business could be brought in over this road from the old settled towns of the southwest portion of this state, so that the whole city in every line and in every department will know and feel that a 10 new stream of prosperity is flowing in? But do you not think, gentlemen, it is a little peculiar that the confidence of Mr. Varick and Mr. Hill and Mr. Hayes and Mr. Eastman and the other gentlemen who have subscribed for stock, that this road will help Manchester, is indicated by subscriptions of |100 each, while the confidence of Mr. Hittinger and Mr. Worcester that it will do so, and incidentally themselves as contractors for building the road, is indicated by a subscrip¬ tion of $90,000 ? Really, do you think a railroad can be of great advantage to these hustling Manchester merchants, if it is not worth an investment in what is claimed would be a dividend-paying stock, of only $100 each ? And is it not more strange that they did not think of it until Mr. Hittinger and Mr. Worcester came and told them,and never made any eifortto get it until these gentlemen had by main strength roused them to action ? THE ALLEGED DIFFICULTIES ANALYZED. Let US examine precisely into the alleged ditficulty which; Manchester traders have in doing business in Milford and towns in the southwest part of the state. They say they can¬ not compete with Boston ; that the distance is too long via Hashua. But it would seem that a Manchester jobber who goes to Nashua, eighteen miles, and starts from there over the Wilton road, is not at much disadvantage with the Boston dealer who has come to the same point a distance of thirty- eight miles. Now, the extra distance to Milford and points beyond, via Nashua,'makes no difference in the cost of trans¬ portation from Manchester. But, it is said, it takes too long to get goods round that way. But how much longer, on freight, than would be required upon this proposed road? Certainly not more than two hours at the longest. And if the freight was to or from points beyond Milford on the Boston & Maine, that time would be more than lost by trans-shipment and carting across the river to this side. But, it is said, it takes too lone: and costs too much to send runners round by Nashua. But, gentlemen, do you believe that any wholesaler in this city finds it impossible to do business in that part of the state, and to compete with Boston dealers who are farther away, because it costs a traveling salesman fifty cents, perhaps. 11 more to go round by Nasbua than it would across by tbia road, and requires an hour more time, providing the trains over the new road were running as conveniently as they now do to bTashua? You see when you come to analyze this claim its improbability becomes apparent. It is one of those specious vague, nebulous generalities that have been swept together here, and industriously blown up to produce the airy, delusive, evasive bubble which has been dignified by calling it a " pub¬ lic demand " and a " business necessity." Think of the proposition that Manchester requires more railroad facilities ! Why, its magnificent growth during the last ten years; its expansion in all departments of busi¬ ness ; the thrift and prosperity of its merchants; the attract¬ iveness of its business blocks ; the magnitude of its trade ; the e.vtent of its manufactures,— all give the absolute lie to the proposition that it is in some way hampered or handicapped for want of better opportunities. By referring to the published time tables, you will see that between 6 o'clock a. m. and noon, seven trains depart fi om Manchester southward to Boston via Nashua, three of which are express ; and that from noon to 7 o'clock p. m. there, are four more, three of which are express ; that two of these, both forenoon and afternoon, connect at Nashua with trains on the Wilton road. That between 5.30 a. m. and 1 o'clock p. m. five trains, three of which are express, and between 1 p. m. and 9.30 seven more, four of which are express, depart for the North ; that over the Lawrence road there are two accom¬ modation and two express trains daily each waj' to Boston, connecting at Windham Junction and Lawrence for points East and West; that over the Portsmouth road there are three trains daily each way connecting at Epping and Eock- ingham Junction and Portsmouth for points East, North and South ; that over the North Weare road there are two trains daily each way connecting at llenniker with the Hillsborough road; that the southwest part of the state is reached by the Boston & Maine lines, either via Nashua, Concord, or Hills- horough Bridge; that at Hooksett all points on the Suncook Valley road are covered, so that Manchester is brought within swift and frequent communication with the entire western, southern, and eastern parts of the state. Is it not palpably 12 preposterous to pretend that it is put to a disadvantage in business because a road is not built across lots from bere to Milford in order to reaeb more directly tbe business of tbose two towns. Of course, it is not tbe real reason for asking tbe road, but it bas been put forward as an important one, and I bave, therefore, thought it might be well to analyze it, to tbe •end that its fallacy might be disclosed. AMHERST AND BEDFORD. This road is projected primarily for tbe interests of Bed¬ ford, Amherst, and Milford. It is said that Milford people -cannot get around t© Manchester without delay at Nashua, and that in consequence of that delay and extra expense they require this road, and that a few of tbe dealers of Manchester are put to a disadvantage for tbe same reason. But it is be¬ yond question that if tbe road were built it would give tbe •citizens of Amherst and Milford no quicker or readier com¬ munication with points beyond Manchester north and east. So, too, in tbe matter of tbe transportation of freight to any points not on tbe line of tbe Fitcbburg road, it is clear there could be no advantage, because it would involve switching charges at junction points which would overbalance tbe saving in tbe twelve miles of transportation. But it appears that tbe delays at Nashua hereafter will be substantially abolished. Tbe consolidation of the two roads has made transfers there unnecessary. Freight by the Boston & Maine road will no longer be sent via Windham Junction, and Mr. Barr has shown you what arrangements, on a broad and ample scale, have been made at Nashua for the convenient and speedy dispatch ^nd distribution of freight to all parts of tbe state. It further appears that Manchester has been made, as one of tbe results ■of tbe consolidation, a billing point for all lines. Mr. Kimball of tbe Kimball Carriage Company, who certainly is as quick as any one to discover business advantages, admitted that if Manchester is a billing point be did not see that trade would be helped much by this road, and bis only complaint was in tbe delays at Nashua, which, as I have just stated, are eliminated by tbe changes following tbe consolidation. Now I assert broadly that tbe towns of Amherst and Bedford are more favorably situated as to railroad facilities than tbe average towns of tbe state. Tbe North Weare Branch 13 of the Boston & Maine passes through Bedford, and Bedford Center is only four miles from the station in West Manchester. The village of Amherst is but two and one-half miles from Milford and three miles from Amherst station on the Wiltoa road, and is connected with those stations by superior high¬ ways. The majority of the citizens of those towns are far more happily situated and readily accommodated than thousands in others portions of the state. What would you think of a proposition to build a new railroad from Gotfstown to Concord, because Goffstown people are compelled to wait in Manchester in order to reach Con¬ cord, and because the farmers of Bow and Dunbarton must, in some instances, haul their lumber and produce six miles to a railroad, and because it is twelve miles shorter from- Goffstown across country than by rail ? What would you think of a proposition to build another railroad from Man¬ chester through the southwest part of Goflstown, Mont "Ver¬ non, New Boston, Deering, and Antrim to Hillsborough, for- example, because the farmers in that part of those towns find themselves more than six miles from any railroad and ten or twenty-five miles from Manchester ? The fact is, gentlemen, you may start out from any city or town in this state where there are railroads, and in some direction you will come upon precisely the same conditions, except that they are worse, as exist in Amherst and Bedford. But who would think that the public good requires the building of railroads wherever the people are five or six miles from the established roads i* and who would think that the public good required the build¬ ing of those roads because the public sentiment was claimed to be in favor of them ? Of course, people six or seven miles from railroads would be in favor of new ones which came nearer and would say, build as many as you please. Every¬ body likes to be near a railroad, but that kind of public senti- WHAT IS MEANT BY " THE PUBLIC GOOD." mentis not synonymous with "the public good." By refer^ ence to section 8, ch. 156, Public Statutes, which provides for a decision of the question whether the public good requires the proposed railroad, the marginal note reads, " Provisional corporations may apply to court for determination of the.ques¬ tion of public necessity," etc. Public good, we understand, means public " necessity," or, as it is sometimes described,. 14 public " exigency." Is there such a state Of things as to make -a railroad a necessity ; and is that necessity pressing, apparent, imminent, or is it prospective, problematical, speculative, the «anguine dream of hopeful men ? If it is the latter, thén there is no exigency, no necessity within the meaning of the Statute, and the public good does not require the road. So, too, if it appear that the good which would come to one portion of the community would be counterbalanced by the harm that would come to others, then there is no exigency ; and we shall ask you, among other facts, to report that while this proposed road would be of considerable convenience to a portion of the people of Amherst and Bedford, and would divert some retail trade to Manchester, it would not increase the aggregate business of the state to any great extent; and the business which would come to Manchester in consequence of the road would be diverted from the villages of Amherst and Milford and the citj' of Nashua. But again, the public good does not mean that a road shall be built which is unprofitable, or which does not furnish business enough to pay a fair return upon the investment. The public good does not require the building of unprofitable roads. It does not require the extension of bankrupt roads. The public good requires the building of only so many roads as are needed to fairly and reasonably accommodate the public business; for a railroad is in fact a charge upon the public. Out of their contributions to its treasury are paid the expenses of its maintenance and the interest upon its cost. Now, if a road does not pay its expenses and a fair interest on its cost, the net result is, that what one portion of the community have gained by reason of the construction of the road, has been at a corresponding loss to another portion of the community. So, I say, if what the people in Bedford and Amherst and Milford and contiguous towns might gain in freight upon their produce, and in facilities for travel, is not equal to the cost of operating the road and interest upon its investment, then the public good does not require the road. Public good does not require that one portion of the community shall be taxed or injured for the benefit of another. My brother Smith in his opening referred to the great extension of railroads, and to the ■efiect of railroads in developing the country, but he neglected to refer to the fact that one of the chief causes in every .finan- 15 cial crisis which has overtaken this country in twenty years has been the extension of railroads built beyond the needs of the community, and paralleling roads that were already ade¬ quate for the business. The result is that atvoiity per cent of the railroads are now in the hands of receivers, and that the average income of the dividend-paying roads is less than three per cent upon the amount actually invested. Does the public good of New Hampshire require more railroads so long as the existing lines are reasonably adequate for the business of the state? and does it require the multiplication of lines which cannot he self-supporting? And so, gentlemen, you are to find the facts, if they exist, which shall show that the public " necessity," or " exigency," requires this road. If those facts exist they must come to you as facts, and not as theories ; and if they do not exist, the concurrence of all the people in this city and Bedford and Amherst and Milford that they think they exist, or believe that they exist, is of no value whatever. The consensus of a million men that a thing is right which is certainly wrong, does not transmute the wrong into right, nor change the eternal principles of right. And so, assuming (which is not the fact) that every one in Man¬ chester is in favor of this road, or as it is vaguel}' expressed, that " public sentiment " favors it, does not alter the facts which you must find, to wit : First. That the comfort, welfare, convenience, and business needs of Manchester, Bedford, Am¬ herst and Milford are such as to make this road a necessity and create an "exigency" within the meaning of the law; and secondly, whether the good which would come to them would be measurably counterbalanced by the injury which would come to other portions of the state and to other citi¬ zens ; and thirdly, whether the value of the road to them would compensate the investment. Now, these are practical questions, and you must find the facts relevant to them upon the evidence of what is reasonably certain ; upon the evidence of what is ^isible, and not upon mere notions which rest upon no firm premise, that this road, as they express it, " would open markets " and " develop business." Where ? And how ? And when? Those are the questions. You must find the public necessity, if it exists, as a reality, and not as a vision or a prophecy. 16 WILL THE ROAD PAY. This brings me to an examination of the question whether this" road will pay ; and I assert that upon the evidence it is .apparent that it cannot, and is not expected to from the busi¬ ness which it is ostensibly meant to reach and develop. Let us commence with the subject of wood and lumber. It is ad¬ mitted that whatever in either Amherst or Bedford is within a radius of five or six miles from the market wmuld not require or use a road if one were built ; that within that distance from the market there is greater profit in delivering it direct by teams. Now, if you will examine the map, which has been referred to you, you will see that within a radius of five miles of the city hall. Reed's Ferry, and Milford, all of which are markets for lumber, and as good markets as could be reached with this road, is included almost the entire area of these two- towns. It appears also by the evidence of the witnesses whom we have produced, all of whom are experts, and no better judges in the state, that in the town of Bedford there is more lumber standing than in all the rest of the territory between here and Milford. That all of it is within a five-mile radius of city hall, and that not a board of it would ever go to a rail¬ road if it were there. That the bulk of what is still standing in Amherst is in the southern part, and nearer to the "Wilton road than the proposedroad, and that, generally speaking, there is no lumber in either town that could be got into market more advantageously with the road built than it can be now. And we shall ask you, gentlemen, upon the evidence before you to- report that fact: That the lumber business of Amherst and Bedford does not require the building of the road. Your own observation of the country must have shown you that, and it is established by the witnesses of the petitioners that lumber can be disposed of to better advantage by teaming it even eleven miles to market, as the evidence shows has been done in Milford and Amherst, than to transport it by cars. And you will also remember that A. C. Wallace, one of the peti¬ tioners, and for forty years a manufacturer and dealer in lum¬ ber in West Manchester, stated that he saw no need of a rail¬ road for the lumber business in Bedford and Amherst, and that Manchester was the best market he knew of for it. How can there be when almost every man in that town appears to- 17 be or to have been engaged, among otber things, in lumber¬ ing, and that in Amherst they have been from time immemo¬ rial cutting OÍF pine at the rate of two million feet per year. But suppose the supply were not exhausted in both these towns, so that the cutting might go on at about the rate of a¿ million feet a year in Bedford, and two millions in Amherst^ thus keeping up the growth to the cutting, upon the presump¬ tion that it will grow in forty or fifty years. Suppose all the lumber were shipped by this road,— three millions annually, — that is, three thousand thousand. The freight which would be earned on this road whether it were shipped to Manchester or Milford or points beyond, would not exceed sixty cents per thousand, and this would yield an annual income of $1,800. There is no evidence that there is much market for wood any¬ where, so that the income of this road would not be materially increased from that business. It is in evidence that the best market for wood from Bedford is in Manchester, and while there are two or three lots beyond the five-mile limit, yet the bulk is within that limit ; and even those outside the limit who brought their wood by team, and sold it at $5 a cord in this market, are realizing more from it than they could if transported by the proposed road. I think you must be satisfied, gentlemen, that there is no market for wmod any¬ where, so that a railroad is needed to develop the business of Bedford and Amherst, There is a large quantity of second growth cheap wood, but very little first class mer¬ chantable wood, and the evidence is, gentlemen, that wood today anywhere in the state is hardly worth the cutting unless first class,' and but little of that can be sold at a profit; that the demand for first class merchantable wood is very limited, and that no better market can be found than Manchester. But suppose the wood business of those two towns should aggregate as much as the lumber annually which would be hauled to this road,— there is no evidence of any such amount, but suppose that there were,— the revenue derived from that source would be $1,800 more. Suppose my friend Hittinger should develop an ice busi¬ ness at Baboosic, amounting to 150,000 tons annually, which I think was the very maximum of his estimate, the freight on that ice to Boston would be 60 cents per ton, $90,000, 2 18 and of this sixty cents this road would be credited, on the basis of mileage, with one fourteenth, and one fourteenth in round numbers is $6,500. So then we credit to this road annually for lumber, $1,800 ; for wood, $1,800, and for ice, $6,500; now what other revenue might it receive? Mr. Manning testified that there was brought into the town of Bedford annually one hundred tons of fertilizer, and that it could be imported by rail at 25 cents a ton. Here is $25 more. I think there is no evidence of how much grain is consumed, but suppose it were one hundred and fifty carloads, the amount said to be imported into Amherst, at 25 cents per ton, we have $550 more for each town, or $1,100. Then Mr. French of Bedford imports eight hundred tons of merchandise which, at 25 cents a ton, would be $200 annually. Mr. Wilson of Amherst four hundred tons, and his freight would amount to $100 ; Mr. Clark six hundred tons, and his freight would be $150; Mr. Taylor of Amherst one hundred and fifty tons, and his freight would be $40. Then there are two hundred tons of phos¬ phates brought into Amherst, and the freight would be $50. The annual shipment of apples is estimated at five thousand barrels in each town ; at five cents a barrel the freight would be $500. Mr. Upton thinks he would increase his vinegar business to three thousand barrels. If he did, his freight would amount to $300. Mr. Stevens, who seems to be one of the thriftiest men in the town, testified that the market gardening would not require the road. How, what else is there that is reasonably certain ? Of course, there would be a little miscellaneous freight. Suppose it was as much more as all the traders in the two towns bring in. Well, here is about $500 more. It is evident the milk busi¬ ness would not be materially changed. The milk of Bed¬ ford comes to Manchester for retail distribution, and J. W. Prince of Amherst said that the railroad would not help the market. Part of it goes to the Hew Boston creamery, part to Milford and Amherst for the Boston market. There is not a scrap of evidence that its conditions would be al¬ tered, or that this road would derive any revenue from the milk business. The fact is, Bedford milkmen are doing better now than those who sell to the wholesalers. There 19 would be a few peaches perhaps, in a peach year, from Chestnut Hill. Perhaps a portion of the twelve hundred bushels of blueberries, which Mr. Dodge says pass through Amherst Village, might go on to the road, but it is clear this would be inconsiderable, and with the mails and express could not amount to very much. Suppose it were $2,000 per year. Then there is the passenger business. Suppose that amounted to three times as much as the entire amount of the Brookline road in this state, there is $6,000. What ■else is there? We say, nothing. We say this talk about the brick business is a pure fake. That when Mr. Parry ■swore that he was ready to locate there, he did not mean it. The idea that Mr. Parry, who had never seen that ter¬ ritory until six hours before he testified, and who went over there and bored down into the ground in three or four places and found only " fair clay," which would make " av¬ erage" brick, who did not know that it required ashes to work it, who "did not know what wood or freight would cost him, came in here with the immediate determination of establishing a brickyard there if the road is built, is simply incredible. There is no rational probability that those clay deposits will ever be worked. The reliable evi¬ dence is that they never were worked without ashes, and cannot be ; that clay which requires ashes cannot be worked profitably; that it is an extra expense for the ashes and cost of burning; that it makes a poor quality of brick, and that ashes destroy the color. Mr. Parry waives that objection aside by saying, take the clay out and dry it; but it ap¬ pears that Mr. Parry is not a practical brick maker, and what about the expense ? Perhaps that was what, after all, stopped the business in Bedford. Or, if not, is it not strange that those old brick makers did not discover that secret for sixty years, and "died without the sight?" The clay in the intervale, — it must be " pitted," or dug out ; it lies two feet below the surface; the good layer is not three feet deep; belo.w that it is mixed with quicksand ; it is inferior clay in every respect; it was abandoned long before the railroad was built to Suncook, by makers who went there to get good clay, and who made brick and transported them by boat down the river. This pretense that Bedford yards were 20 closed because of lack of railroad facilities is without sup¬ port, and contrary to the evidence. They were closed be¬ cause of the poor clay. These practical brick makers, who know what they are talking about, tell you that those yards cannot be opened or worked profitably; cannot compete with established yards where clay is cut from high banks or blufls ; that the clay is shallow, or poor quality, and re¬ quires ashes to work it, that the brick business is already so overdone that there is no money in it, and that there is no probability of brick ever being made in Bedford again. So, then, we have a business that may be done over this road, under the most favorable conditions, of |24,000 per year, in round numbers, and this upon the supposition that all of this freight goes on to the road. This is the total annual,, gross revenue. Mr. Worcester admitted the road would cost $400,000 p Mr. Hittinger thought it might reach $500,000. Mr. Rotch, one- of the petitioners, who subscribed $35,000 for stock, says if it costs more than $300,000 that " would affect his judgment as to the feasibility of building it." Clearly, Mr. Rotch has not subscribed $35,000 upon the idea that he was going to be called upon to pay the money in. Mr. Rotch is too sagacious and intelligent a gentleman not to have found out from some reliable estimation what this road would really cost, if he ex¬ pected to pay $35,000 in cash to build it. Ñow there is no definite information as to what the terminals in Manchester will cost. Mr. Taggart, when the view was taken, gave us to understand that they proposed to take the whole square be¬ tween Turner and Second streets. About one half of it is already bonded, it is said, for $50,000. Mr. Worcester says the land will cost them $75,000; Mr. Hittinger, $75,000 to $100,000. If they take the land on the south side of the Horth Weare road by the river, which is held at a very high price, and which within a few years has been sold off for building lots, the land damages will be large. It is safe, therefore, to estimate the cost of this road at not less than half a million dollars. If it does not pay at least four per cent net it ought not to be built; and four per cent on $500,000 is $20,000. The evidence is that seventy per cent of the gross income is required for the expenses of maintaining and operating roads,. 21 including taxes. So if this road is to pay four per cent on a cost of $500,000, it must earn $67,000. There is no evidence that it could earn $20,000. Who believes that it is projected upon the assumption in good faith that, independently of any alli¬ ance with the Fitchburg road, and from the business which it would develop, it would pay as an investment ? And if the brick and granite business came to anything, you cannot then figure out of it half enough to make up this deficiency. wood And lumber. In the computations which I have made of the earnings of this road I have assumed that the lumber in Bedford and Amherst is there in such quantity as the petitioners claim ; but the evidence shows it is not there. Your own observa¬ tion when we took the view must have convinced you that it is not there, whatever witnesses may say. How could it be when you reflect that these are two old settled towns, and that they have been cutting off until the present time, for one hundred and fifty years or more, the old growth long ago exhausted, and the second growth cut at the rate of a million or more annually in Bedford by the local mills and shipped, and two millions or more by the mills in Amherst, besides what has been hauled to Wallace's, Heed's Ferry, Nashua, and Milford for consumption at those points. Why, if the growth of lumber had kept up with the consump¬ tion, so that there is now such a quantity as some of the wit¬ nesses say there is, the trees would have grown with the rapidity of Jack's bean stalk. 'The experienced lumbermen whom we had to go over the town and examine it, have shown you that outside of a five-mile radius from the city hall there is very little left, except two lots within three miles of Milford village, of no great extent ; that within the five-mile radius from city hall there are several millions of feet, all of which could be brought to this marketat more profit than elsewhere. I have figured up the estimates which Mr. Manning gave of all the lots which he could recall in the town of Bedford, and it amounts to five million three hundred thousand feet. I think that is not far from right, and upon that basis there are certainly not to exceed ten million feet in the whole town. I believe that no one estimated the amount in Amherst except 22 Mr. "Wilkins, who courageously placed it at one hundred mil¬ lion feet; but when Mr. Tripp and the other witnesses went to look it up, nobody in Amherst could tell them of but two lots, of which I have spoken. They could not find any ; and they tell you there are not probably fifteen million feet there,, if it was all cut clean. There is- no such condition as existed in the towns through which the North Weare road was built forty years ago, and the Suncook valley twenty-five years ago. There were the uncut original forests, and there was some- sense in saying that a railroad in those sections was needed for the prosecution of the lumber business. It is simple non¬ sense to talk about Bedford and Amherst needing a railroad " to develop the wood and lumber business." It has been de¬ veloped — developed out of sight ; developed in Amherst to- such a degree that- three or four years ago, as appears by the evidence, they asked that the valuation be cut down $50,000, as it was, because of that fact. There is a large quantity of young growth wood, mostly oak, very little good wood. But there is no market for wood anywhere. The wood business is, and has been for a long time, dull, limited, and profitless,, and the Bedford farmers, who in winter bring it to this market for retail consumption, are really getting more for it than they could in any other way. Oh, but it is said, when Parry starts his brickyard, he will use up seventy-five hundred cords a year. "Well, he might if he starts the business and makes fifteen million bricks a year. I suppose that endless quantities might he used if somebody should undertake to grow oranges under glass in that town, so as to raise fifteen million boxes annually. But nobody will do it. Neither will Mr. Parry or any one make brick. It is as idle as it would be to propose to make a market for wood in the White Mountains by raising bananas arid pomegranates with artificial heat. But if there was not a market for wood and lumber in Manchester, Nashua, and Mil- ford, and the owners needed to ship to other markets, they would not then be compelled to haul it for loading on the cars any greater distance than most of the lumber of the state is- hauled. But is it clear that they have found their market somewhere in the past? The denuded hills and the small growth of wood are conclusive evidence of that fact. Don't you think that A. C. Wallace was entirely right when he told 23 you that " there is no old growth left except a few scattering- trees; that there is not a very large amount of lumber out in that section. My experience is that it has been pretty wmll cut off. I think I know something about it; " that " there is not a very large lot of timber within six miles of my place in Uedford or in Merrimack, and a small quantity in Amherst and Milford." With that testimony in the case, is it not a trifle ridiculous for counsel to suggest, as they have many times during this hearing, that Mr. Thompson, Mr. Foss, Mr. Proctor, Mr. Tripp, and Mr. Fellows are mistaken ; that there were lots there which they did not see, but wbich nobody has pretended to identify, except Manning; and that they were taken round for the purpose of not finding it; that they have "made a bluff" at hunting for it, and came before you to testify to order ? If the lumber and wood are there, why did not the petitioners have Gilman Clough and Lewis Clough, who know this country if anybody does, and who have been here in court day after day, or some other equally expert and competent lumbermen who are in the business, testify in contradiction ? I think it is not necessary to say anything further upon this phase of the case. I would be content to rest it on the testi¬ mony of Mr. Wallace. THE GRANITE BUSINESS. And the granite business ; that, too, is a thing in the air, if I may use the expression. It is certainly not in the ground. There was the same sanguine talk about the granite business of Brookline awaiting development as there is here about Am¬ herst and Bedford. But what has been the experience of the granite men there ? Failure and disappointment. Mr. Bond went there and opened a quarry that promised well, sunk $8,000 in it, and abandoned it. Taylor & Tyler, Badger Bros., and Ilannebury have gone through a like experience, and there can be no doubt that the granite business of Brookline is a failure except in a very small and uncertain way. It was shown by the testimony of Mr. Miller of Quincy, who has been in the business ever since he was twelve years old ; Frederick J. Fuller, also of Quincy, who had been in the business for twenty-five years, both of whom had invested in Milford quarries, lost all they put in, and abandoned their 24 quarries; and by the testimony of Mr. Batterson of Concord, whose knowledge and experience in the business are not sur¬ passed by any man in the country, and by Timothy P. Sulli¬ van, an acknowledged expert in the business, that the whole granite formation of Amherst, Milford, Bedford, and Brook- line is such that, generally speaking, the business cannot be and has not been done at a profit. There has been more failure than success. Small quantities of very fine, beautiful, superior granite are there, but they are so blended and mixed in with inferior granite, conglomerate, and other worthless material that the supply is extremely limited, far less than the demand, and the quarries are soon exhausted. It also appears by the testimony of Mr. Hayden and others that there can be no market for cheap stone north of Milford, because they cannot compete with Manchester, Con¬ cord, and Hooksett. So that the granite industries of Milford and of Brookline certainly do not require the opening of this road. Now, what about Amherst granite ? Hayden opened his quarry a mile from the village, worked it a year, lost money, got out, and said he would never go back. He found a little fine stone. But there was iron in the quarry, the layers were thin, and were so mixed in with cheap, poor stone that the profit on them was lost by reason of the increased cost of get¬ ting them out. Mr. Sullivan, Mr. Batterson, and Mr. Ander¬ son all say that this quarry cannot, even with the railroad, be successfully operated. The Bills quarry, too, showed up first rate in the Milford town hall, when Mr. Bills came in, and in a few nervous, crisp, abbreviated sentences sketched an outline of its extent and richness, and lifted it, as it were, into view by the production of his famous " sample." But when Mr. Batterson and Mr. Sullivan went to examine it, they found that Bills had already abandoned his sample quarry, and was bushing out the trees by the roadside exploring for another; and they tell you that there is no quarry there to be developed. Coming up to the quarry of our friend Manning, Mr. Bat¬ terson and Mr. Sullivan found a great mass of what seemed fine stone in thin sheets, and mixed in with poor stone and salt seams and quartz that ran through it ; so that stone in 25 good lengths cannot be obtained. Tbey said it was good for underpinning, street curbing, and paving blocks, but that with 3, railroad right through it, it would be unprofitable to operate it, and it could not compete with Suncook, Concord, or Man¬ chester, or with Kittridge's quarry in Milford, the only one there that seems to have any staying qualities. Then there was French's quarry, which Mr. Sullivan ex¬ amined four years ago when he was hunting for granite with Mr. Dowst, and which he examined lately with Mr. Batter- sou. When he went with Dowst he found Stevens had been working a bowlder, which has since been worked out and the quarry abanaoned. The old vein of fine stone had been worked out and nothing left worth working, a confused mis¬ cellaneous mass of all kinds and colors of stone. Now, gentlemen, I believe that fairly states, in a general way, the evidence in regard to this entire granite business. No doubt there is granite to be found in these towns and in every town more or less, but in the formation of these partic¬ ular towns it is beyond question that wherever it has been ex¬ posed it has proved to be irregular and heterogeneous ; small quantities of very fine pieces of small dimensions, mixed with «alt seams, quartz, feldspar, and other cheap stone ; so that in working the expense of obtaining the fine blocks is very great, and the pieces of too limited dimensions to make it profitable. I think that Milford people themselves must reluctantly con¬ cede, what we all regret, that the granite business of that ter¬ ritory is a diminishing rather than an increasing prospect. In the long run no one seems to have made money there. Do you think, gentlemen, that a railroad is needed to de¬ velop the abandoned Ilayden quarry in Amherst, the two Patch Hill quarries which he also abandoned, Mr. Bills's gold Brick quarry, Mr. French's worked out quarry, and friend Manning's cheap granite quarry that could not run a minute in competition with Manchester, Suncook, or Concord? MANUFACTURING. Oh ! but it is said that manufacturing would develop on this line. One gentleman testified to the favorable location ■of land in Bedford through which it runs, for manufacturing, öranted ; hut, gentlemen, you know, and it was shown, that 26 Manchester is surrounded with land through which the rail¬ roads already run, better situated for manufacturing than this ; and if that is not occupied, what reason is there to suppose that the land in Bedford would he occupied, at least until the existing railroads do not furnish sufficient opportunity for manufacturing. There is no demand for more roads for man¬ ufacturing, and I believe that nobody has been so visionary as to claim that any manufacturing business could be devel¬ oped in that most delightful, rural, typical New England vil¬ lage of Bedford. I do not think anybody wants it there. It would he almost a profanation. But there is Amherst ! A village of three hundred inhabit¬ ants; respectable, aristocratic, solemn, dignified, a fine speci¬ men of an old fashioned shire town. It has no water power. It has no natural advantages for manufacturing. It has a few empty tenements, but manufacturers are not going there because of that. Nobody has heard that any one proposes to go there if it had a hundred roads. My friend John McLane said it was a good place for a shoe shop. But I fancy if any¬ body wanted to go into the shoe business in that vicinity Am¬ herst would stand very little sight as against Milford. The evidence shows that a railroad does not develop manufac¬ turing necessarily. Inland towns are not sought unless they have some exceptional advantages, such as .water power- Nothing ever made Amherst particularly, except it was the county seat. And you can no more restore its vanished glory,, or transform it into a hustling manufacturing village by a railroad, than the morning sun of this century will bring music again from the fabled lips of Memnon. New Hamp¬ shire is covered all over with pretty villages, of which people might say, " if we onl}' bad railroads we could be manufactur¬ ing places." It has hundreds of ponds of which it might be said, " if only a railroad were there they might he summer resorts; and splendid places for the ice business." But on the contrary. New Hampshire has scores of pretty villages where the railroads run, where there is every physical op¬ portunity for manufacturing, scores of lakes and ponds con¬ tiguous to railroads where the ice business might be devel¬ oped. But they will not become manufacturing towns ; nor summer resorts ; the ice business will not he developed,. 27 because there are so many other places to absorb the busi¬ ness; because there are enough already existing to meet the public requirements. Mr. George A. Leighton thought that Baboosic pond might be a summer resort ; that when cottagers were driven from Massabesic they will flock to Baboosic; and Mr. Botch pronounces it more beautiful than Sunapee. Well, I thought when that evidence was producèd that it surpassed anything since the advent of " Col. Mulberry Sellers." Think of comparing Baboosic pond with Sunapee lake ! And when a witness tells you that he thinks it is superior as a summer resort, and in point of scenery and surroundings, do you not suspect the reliability of his judgment in practical busi¬ ness questions ? Baboosic pond has an area of seven hundred acres. Since this hearing was started I believe brother Lord has digni¬ fied it by the name of "Baboosic Lake." By the time Judge Smith gets ready to argue this case, I should not be surprised if he called it " The multitudinous sea." Here¬ abouts it bas long been known as a nice little pond for picnic parties, and a good place for the boys to go along in dog days to camp out and catch hornpout. . It would undoubtedly make good ice ; but I fancy that when Mr. Hittinger gets his thirty ice houses distributed around it so that he can ship 150,000 tons of ice per year, that it will not be the most enticing place for cottagers; and I do not believe that Mr. Leighton ever expects to see any general exodus of cottagers from Manchester, expatriated from Mas¬ sabesic to the shores of Baboosic ! COAL, STRAW, AND GRAIN. But it is said that, with this road, coal for manufacturing can be delivered much cheaper, and that it is of vital interest to manufacturers of the city that this be done. Strange, is it not, that none of those manufacturers have been here to testi¬ fy, that they are taking no interest in this hearing whatever, and that it has been left for Mr. Hittinger and Mr. Worcester to come here and give their time and money to help the Man¬ chester manufacturers? But this coal business turns out like all the rest of the pretenses. 28 It appears, by Mr. Sanbora's testimony, that while Mr. Spring was laying down anthracite coal in Fitchburg at $5.85, it could be delivered here at $5.15, and that bituminous coal from Portsmouth can be delivered here at $3.40 per ton against $3.80 and $3.85 in.ritchburg. Then, there was the straw business. Mr. Partridge com¬ plained that straw was delivered in Nashua at $5 less per car than in Manchester. Did he stop to inquire whether the Fitch¬ burg road comes into Nashua ? That straw came over the Concord road via Concord Junction. Nashua did not get a lower rate because the Fitchburg road was there ; and if they had desired to deliver in Manchester, they could have done so at the same price. So, too, the corn which came via Rotterdam Junction, and which a Boston jobber delivered at half a cent a bushel less than the other roads to points on the Fitchburg. But it seems that that corn is " number two Chicago," that is transported by water to Rotterdam Junction, and is about two months on the journey ; limited in quantity, uncertain of delivery, and to be had for only three or four months in the year, and that it cuts no figure at all in the grain business of New England. So that none of the roads, even the Fitchburg, attempts to meet the rate at which it is delivered by these jobbers. It does not follow that the freight rate is any less because they ■deliver it less at certain points. They simply make less profit on it. It is just like the case of the coal companies who agree to deliver it at a certain price. They can call the freight rate what they please, and the coal what they please. If they make the freight less, the price of the coal will be greater and vice versa. And this leads me to recall to your recollection the fact that Mr. Spring himself conceded that the price of coal in Boston and on the seaboard was determined hy the price ■of the tide-water coal, so that he had to sell coal at one dollar per ton less in Boston than in Fitchburg. This being so, it is perfectly apparent that the price of coal in 3Ianchester is and will be fixed by the price of tide-water coal from Portsmouth, and that