after referring the question, as to the propriety or right to take the land, to an engineer, who decided against the company and in favor of the land-owner, the court ultimately held that neither the opinion of the engineer nor of the court could curtail the power of the company in respect to the quantity of land which the company, bona fide acting under its statutory powers, sought to obtain.

8. And where, by a special act, a company were empowered to erect a market house on land described in the deposited plans, it was held, that as the land of the plaintiff was described in the plans, and as therefore it might be wanted, the company were authorized to take it, and that the company were to be regarded as the proper judges of what lands were necessary for the works.11

9. The trustees of a turnpike-road agreed to assent to a bill in parliament for the formation of a railway, on the condition that the railway should pass over the road at a sufficient elevation, and the road be not lowered, or otherwise prejudiced. It was held that this modified assent, not being embodied into any agreement between the trustees and company, or incorporated into the act, afforded no equitable ground for restraining the company from the exercise of all their powers under their act; that the company were authorized to sink the original surface of a turnpike-road to gain the requisite elevation for the arch of a bridge to carry the railway over the road, notwithstanding the effect might be to render the road liable to be occasionally flooded.12 Any omission, misstatement, or erroneous description in the parliamentary plans referred to in the act, may be corrected on application to two justices, in the mode prescribed in the act.13

10. By statute, in some of the states, a railway company who file the location of their road in the requisite office, are allowed to deviate, to any extent consistent with their charter, in the course of construction.1 But it has been held, that after once

14

11 Richards v. The Scarborough Public Market Co., 23 Eng. L. & Eq. 343. 12 Aldred v. The North Midland Railw., 1 Railw. C. 404.

13 Taylor v. Clemson, 3 Railw. C. 65, shows the mode of procedure in such

cases.

14 The Boston & Providence Railw. v. The Midland Railw., 1 Gray, 340. The charter gave the company power to construct their road in five mile sec

*

locating their road, their power to re-locate, and, for that purpose to occupy the land of another or the public street, ceases.15

11. It has been held, that a grant to a railway company to construct their road between two towns, gave them implied authority to construct a branch to communicate with a depot and turn-table, on a street in one of the towns (New Orleans) off the direct line.16 12. The grant to take land implies power to take buildings.17 And a grant to take land for the company's road implies the right to take land for all the necessary works of the company, tions, but not to begin the work within a prescribed distance of one terminus, or until all of its stock was taken by responsible persons, and one hundred and forty thousand dollars paid into the treasury, it was held, that this restriction, in regard to the subscription and payment of stock, did not fix a limitation upon the company in regard to building their whole road not in sections.

The courts, in interpreting an act of incorporation, will not examine what took place while it was passing through the legislature. Bank of Pennsylvania v. The Commonwealth, 19 Penn. St. 144. And in Commonwealth v. Fitchburg Railw. 8 Cush. 240, it was held, that the petitions to the legislature upon which the act was granted were inadmissible upon the question of the construction of the act, in regard to the course and direction of the line of the road.

15 Little Miami Railw. v. Naylor, 2 Ohio St. 235. And an authority to change the location of the line, during the work, does not imply power to change it after the road is complete. Moorhead v. Little Miami Railw., 17 Ohio, 340. The same view is maintained by Lord Eldon, Ch., in Blakemore v. Glamorganshire Canal Co., 1 My. & K. 154. But a different rule seems to be intimated in S. C. Railw. ex parte, 2 Rich 434. But see Canal Co. v. Blakemore, 1 Cl. & Fin. 262; State v. Norwalk & Danbury Turnpike Co., 10 Conn. R. 157; Turnpike Co. v. Hosmer, 12 Conn. R. 364; Louisville & Nashville Branch Turnpike Co. v. Nashville & Kentucky Turnpike Co., 2 Swan, 282, where the proposition of the text is maintained. But in South Carolina Railw. v. Blake, 9 Rich. 229, it is held, that a railway company have the same power to acquire land, either by grant or by compulsory proceedings, for the purpose of varying, altering, and repairing their road, as for the original purpose of locating and constructing it. But that the company are not the final arbiters in determining the exigency for taking the land. The petition of the company for taking the land should allege in detail the necessity for taking it, and the land-owner may traverse these allegations, and in that case this is tried as a preliminary question.

16 Knight v. Carrolton Railw., 9 Louis. Ann. 284; N. O. & C. Railw. v. Second Munic. of New Orleans, 1 Id. 128. But where by the charter of a railway they were authorized to construct their road "from Charleston " to certain other points, it was held that this gave them no authority to enter the city, but that the boundary of the city was the terminus a quo. Northeast Railw. v. Payne, 8 Rich. 177.

17 Brocket v. Railway, 14 Penn. St. 241.

such as depots, car and engine houses, tanks, repairing shops, houses for switch and bridge tenders, and coal and wood yards, but not for * the erection of houses for servants, car and engine factories, coal-mines, etc.18

13. And a charter allowing the company to extend their line to a certain point, "thence running through Acton, Sudbury, Stow, Marlborough," &c., does not oblige the company to locate their road through these towns, in the order named in the charter. And a location of the road from Acton through Stow to Sudbury, and thence through Stow again to Marlborough, was held to be a sufficient compliance with the grant.19

14. If the charter of a railway limit the line of construction, by the boundaries of a borough, and the boundaries of such borough are subsequently extended, that will not alter the right of the company in regard to the location of their road.20 And an exclusive grant for a railway within certain limits, defined at one terminus by a city, is to be restrained to the limits of the city at the date of the grant.21

15. A party whose land was taken by a railway company for the purposes of their road, and the damages assessed and de

18 State v. Comm. of Mansfield, 3 Zab. 510; Vt. Cent. Railw. v. Burlington, 28 Vt. R. 193; Nashville & C. Railw. v. Cowardin, 11 Humph. 348.

19 Commonwealth v. The Fitchburg Railw., 8 Cush. 240. See also Brigham v. Agricultural Branch Railw., 1 Allen, 366. It seems agreed that slight deviaations from the route prescribed in the charter will not release the stockholders from the obligation of their subscriptions; but that any substantial deviation will have that effect. The precise line of distinction between the two classes of cases must be left to the construction of the courts in each particular case. The stockholders may enjoin the company in the course of construction from making an essential deviation, and after the road is completed, the company may, by scire facias, be called to account for not building upon the route indicated in their charter. But where all interested acquiesce in the route adopted, until their road is completed, it will require a very clear case to induce the courts to interfere. The following cases bear upon the general question: Ashtabula & N. L. Railw. v. Smith, 15 Ohio St. 328; Champion v. Memphis & C. Railw. Co., 35 Miss. R. 692; Fry v. Lex. & Big S. Railw. Co., 2 Met. (Ky.) 314; Aurora v. West, 22 Ind. R. 88; Smith v. Allison, 23 id. 366; Miss. O. & R. Railw. v. Cross, 20 Ark. R. 443; Witter v. same Co., Id. 463; Illinois Grand T. Railw. v. Cook, 29 Ill. R. 237. See also K. R. & R. Railw. v. Marsh, 17 Wisc. R. 13. 20 Commonwealth v. Erie & North East Railw., 27 Penn. St. 339.

21 Pontchartrain Railw. v. Lafayette & Pont. Railw., 10 Louis. Ann. 741

posited for, and accepted by him, with full knowledge of all the proceedings and of any defect therein, and who allowed the company to occupy the land and make improvements thereon, without remonstrance, for two years, and who then brought an action of trespass against the company, on the ground that their proceedings were irregular and void, was held to have waived all right to object to them on that ground.22

16. And where the company by charter had power to take land for engine and water stations, within five years from the date of their grant, it was held they could not exercise such powers after the expiration of the time limited, although operating their line by horse power during that time they had not required the exercise of such powers on that account.23

17. A charter to construct a railway, "to commence at some convenient point in the city of Brooklyn, and to terminate at Newtown, Queen's county,-to be located in King's and Queen's counties, and its length to be about twenty-five miles"; there being both a town and village of the name of Newtown, and the boundary of the town being also the boundary of the city of Brooklyn, it was held, that the natural and only consistent construction was, to regard Newtown as the village of that name, and thus extend the railway through a portion of both counties named, and not restrict it to the limits of the city of Brooklyn.24

18. It is here declared, that where the charter, as applied to the route indicated, defines a precise line, that line becomes as binding upon the company as if it formed a portion of the charter itself; and that where a map is filed in conformity with the charter, which does not embrace the entire route indicated by the charter as applied to the subject-matter, in order to reconcile the apparent conflict, the map may be regarded as intended to give only a portion of the route; or in case of irreconcilable conflict, the map must yield to the express provisions of the charter.24 The distinction between the application of terms to indicate the route of a railway and to define its termimi, is considerably discussed in a late case in New Jersey.25

22 Hitchcock v. Danbury & Norwalk Railw., 25 Conn. R. 516.

23 Plymouth Railw. Co. v. Colwell, 39 Penn. St. 337.

24 Mason v. Brooklyn & Newtown Railw. Co., 35 Barb. 373.

25 McFarland v. Orange & Newark Horse-Car Railw. Co., 2 Beasley, 17.

19. A power to change the location of a railway, on account of the difficulty of construction and other causes, may be exercised at any time before the construction is finished at the particular

20. The lines and works of a railway are sufficiently indicated by black lines upon the plan, and dotted lines around them to mark the limits of deviation.27 And where the deposited plans and sections specify the span and height of a bridge by which the railway is to be carried over a turnpike road, the company will not, in the construction of the bridge, be allowed to deviate from the plans and sections.28

SECTION II.

Distance, how measured.

1. This is affected by subject-matter.

3. General rule to measure by straight line. 2. Contracts to build railway, by rate per 4. Same rule in regard to turnpike-roads. mile.

1

§ 106. 1. Questions of some perplexity sometimes arise in regard to the mode of measuring distance, in a statute or contract. The import of terms defining distance will be sometimes controlled by the context, or the subject-matter. In one case,1 where the assignor of the lease of a public-house in London covenanted that he would not keep a public-house within half a mile from the premises assigned, it was held that the distance should be computed by the nearest way of access.

2. And contracts to be paid for constructing a turnpike, or railway, a given price by the mile, would, ordinarily, no doubt, require an admeasurement upon the line of the road. It was held, in a late case in Vermont, that in such cases the contractor is not entitled to compute the length of track, and thus

26 Atkinson v. Mar. & Cin. Railw. Co., 15 Ohio St. 21.

27 Weld v. London & S. W. Railw., 9 Jur. N. S. 510.

28 Atty.-General v. Tewksbury & Great Malvern Railw. Co., 9 Jur. N. S. 951. 1 Leigh v. Hind, 9 B. & C. 774; s. c. 17 Eng. Comm. L. R. 495. But Parke, J., was of a different opinion, and said: “I should have thought that the proper mode of measuring the distance would be to take a straight line from house to house, in common parlance, as the crow flies."