THE LAW OF RAILWAYS. CHAPTER I. INTRODUCTION. 1. Origin of railways in England. 4. Railways in America, public grants. 2. First built upon one's own land, or by 5. Use of steam power on railways. special license from the owner. 3. Questions in regard to private railways. 6. The franchise of a railway not necessarily corporate, nor unassignable. § 1. 1. ALTHOUGH some of the Roman roads, like the Appian Way, were a somewhat near approach to the modern railway, being formed into a continuous plane surface, by means of blocks of stone fitted closely together, yet they were, in the principle of construction and operation, essentially different from railways. The idea of a distinct track, for the wheels of carriages, does not seem to have been reduced to practice until late in the seventeenth century. In 1676, some account is given of the transportation of coals near Newcastle, upon the river Tyne, upon a very imperfect railway, by means of rude carriages, whose wheels ran upon some kind of rails of timber.1 About one hundred years afterwards, an iron railway is said to have been constructed and put in operation at the colliery near Sheffield. From this time they were put into very extensive use, for conveying coal, stone, and other like substances, short distances, in order to reach navigable waters, and sometimes near the cities, where large quantities of stone were requisite for building purposes. 2. These railways, built chiefly by the owners of coal-mines Roger North's Life of Lord Keeper North, vol. 2, p. 281; Ency. Americana, Art. Railway, vol. 10, p. 478. and stone-quarries, either upon their own land or by special license, called way-leave, upon the land of others, had become numerous long before the application of steam power to railway transportation. * 3. Some few questions in regard to the use of these railways, or tramways, at common law, have arisen in the English courts.2 But as no such railways exist in this country, it would scarcely be expected we should here more than allude to such cases.3 2 Walford on Railways, 2; Keppell v. Bailey, 2 My. & K. 517; Hemingway v. Fernandes, 13 Simons, 228. These cases seem to establish the rule, that a covenant to erect a railway across the land of another, and to use the same exclusively for a given transportation, is binding upon the assignees of the interest. But a mere covenant to use an adjoining railway, and pay a specified toll, does not run with the land then used by the covenanter, and from which he derives the material transported. Id. 3 Walford, 3 – 10. The points chiefly discussed in the reported cases in reference to private railways and railways at common law, are : — 1. That these way-leaves, or reservations, by which one man has the right to build a railway upon the land of others, or in the rightful occupation of others, are not to be limited to the kind of railway in use at the date of the reservation or grant, but will justify the building of a railway, suitable and convenient for the use for which the reservation or grant is made, and with all such needful or useful improvements, as the progress and improvements of art and science will enable the grantee to avail himself of. Dand v. Kingscote, 2 Railw. C. 27; s. c. 6 M. & W. 174. Hence it was considered that such railways might, upon the general application of steam power to railways, adopt that as an improvement, coming fairly within the contemplated use of their grant or reservation, although wholly unknown at the date of their grant. Bishop v. North, 3 Railw. C. 459. 2. That this will not justify the grantee of a way-leave for a railway, for a special purpose, to erect one for general purposes of transporting merchandise and passengers. Dand v. Kingscote, 2. Railw. C. 27; Farrow v. Vansittart, 1 Railw. C. 602; Durham & Sunderland R. v. Walker, 3 Railw. C. 36. In this last case, which was a decision of the Exchequer Chamber, the way-leave was retained by the landlord in leasing the land, and the court say, it is not an exception, for it is not parcel of the thing granted, and it is not a reservation, as it did not issue out of the thing granted, but it is an easement, newly created, by way of grant, from the lessee. And that it was to be presumed the deed was executed by both parties, lessor and lessee. But it was held, that where, by a canal act, (32 Geo. 3, c. 100, § 54,) the proprietors of coal-mines, within certain parishes, are empowered to make railways to convey coal over the land of others, by paying or tendering satisfaction, that this power was not limited to such persons as were the proprietors, at the date *4. All railways and other similar corporations in this country exist, or are presumed to have originally existed, by means of an express grant from the legislative power of the state or sovereignty.4 5. The first use of locomotive engines upon railways for purposes of general transportation does not date further back than October, 1829; and all the railways in this country, with one or two exceptions, have been built since that date.5 of the act, but extended to subsequent proprietors. Bishop v. North, 3 Railw. C. 459. 3. That if the railway was such a railway as the company, at the time when it was made, might lawfully make, for the purposes for which, when made, they might lawfully use it, the plaintiff, as reversioner, had no ground of complaint, by reason of the intention of the company to use it for other purposes, for which they had no right to use it, until such intentions were actually carried into effect. Durham & Sunderland R. v. Walker, 3 Railw. C. 36. But where other parties have acquired the right to use a railway originally erected by private enterprise and for private purposes, the English courts at an early day restrained the owners of the railway by mandamus from taking up their track, and required them to maintain it in proper condition for public use. Rex v. Severn R. 2 B. & Ald. 646. But see Thorne v. Taw Vale R. 13 Beavan, 10. 4. That such way-leaves, for the erection and use of railways upon the land of others, may exist by express contract; by presumption or prescription; from necessity, as accessory to other grants; and by acquiescence, short of the limit of prescription. Barnard v. Wallis, 2 Railw. C. 162; Monmouth Canal Co. v. Harford, 1 C. M. & R. 614. These railways, at common law and by contract, impose certain burdens upon the proprietors, as the payment of rent sometimes for the use of the land, tenant's damages, and the keeping their roads in repair, so as not to do damage to the occupiers of the adjoining lands. Wilson v. Anderson, 1 Car. & K. 544; Walford, supra. 4 * 2 Kent, Comm. 276, 277; Stockbridge v. West Stockbridge, 12 Mass. R. 400; Hagerstown Turnpike Co. v. Creeger, 5 Har. & J. 122; Greene v. Dennis, 6 Conn. R. 292, 302, Hosmer Ch. J.; Franklin Bridge Co. v. Wood, 14 Ga. R. 80. But from the case of Wilson v. Cunningham, 3 California R. 241, it seems that the municipal authorities of San Francisco did assume to grant a private railway within the limits of the city. The court held the proprietor liable for the slightest negligence in its use, whereby third parties were injured. Post, § 250. 5 The celebrated trial of locomotive engines upon the Liverpool and Manchester Railway, for the purpose of determining the relative advantage of stationary and locomotive power upon such roads, and which resulted in favor of the latter, was had in October, 1829. The Quincy Railway, for the transportation of granite solely, by horse power, was constructed about two years 6. There is nothing in the prerogative right of maintaining and operating a railway and taking tolls thereon which is necessarily of a corporate character, or which might not, with perfect propriety, belong to, or be exercised by, natural persons, or which in its nature may not be regarded as assignable. before this. But the Boston and Lowell Railway, one of the first railways in this country for general transportation of passengers and merchandise by the use of steam power and locomotive engines was incorporated in June, 1830. And railways for purposes of general traffic were constructed about the same date in most of the older States, and very soon throughout the country, * Bennett, J., in Bank of Middlebury v. Edgerton, 30 Vt. R. 182. |