§ 64. 1. In England railways can take lands by compulsion, only in conformity to the terms of their charters, and the general laws defining their powers. And in this country a railway company or other corporation must show, not only the express warrant of the legislature 2 (which it must for all its acts) for taking the land of others for their own uses, but also that the legislature, in giving such warrant, conformed to the constitutions of the states, in most of which it is expressly required that compensation should be made for all lands taken. And upon this subject, the circumspection of the English courts, in requiring damage and loss to the land-owners to be fairly met, is shown very fully by the language of Lord Denman, Ch. J., in The Queen v. The Eastern Counties Railway.3

1 Taylor v. Clemson, 2 Q. B. 978; s. c. 3 Railw. C. 65. Tindal, Ch. J., here said, "This authority to take land, if exercised adversely, and not by consent, is undoubtedly an authority to be carried into effect, by means unknown to the com⚫mon law." And in Barnard v. Wallis, 2 Railw. C. 177, the Master of the Rolls declares, that aside from the provisions of the act of parliament, the owner of one rod of land may insist upon his own terms, to the utter overthrow of the most important public work. "The price of his consent must be determined by himself." All kinds of property and estate are subject to this right of eminent domain, and a dwelling-house, so long regarded as the inviolable sanctuary of the owner or occupant, forms no exception. Wells v. Som. & Ken. Railw. Co., 47 Me. 345.

* Hickok v. Plattsburgh, 15 Barb. 435; 4 Barb. 127; Halstead v. Mayor, &c. of New York, 3 Comst. 430; Hart v. Mayor of Albany, 9 Wend. 571, 588; 2 Denio, 110; Dunham v. Trustees of Rochester, 5 Cowen, 462.

32 Q. B. 347; s. c. 2 Railw. C. 736, 752. It has been repeatedly decided that the corporate authorities of a city have no power to confer upon any person, natural or corporate, the franchise of operating a railway. Such a grant for an indefinite period is void as a perpetuity. Such powers are held by the city for the public benefit, and cannot be abrogated or delegated. And such a grant is not an

2. "We think it not unfit to premise, that when such large powers are intrusted to a company to carry their works into execution, without the consent of the owners and occupiers of the land, it is reasonable and just that any injury to property which can be shown to arise from the prosecution of those works should be fairly compensated for to the party sustaining it."

3. In the English statute, too, railway companies are made liable to pay damage to the owner of all lands “injuriously affected” by any of their works. Such a provision does not exist in many of the American states, and consequently no liability is imposed for merely consequential damages to lands, no part of which is taken.4

4. Under the English statute, giving damage where lands are "injuriously affected," railways have been held liable for all acts, which, if done without legislative grant, would constitute a nuisance, and by which a particular party incurs special damage.5

5. These grants, being in derogation of common right, are to receive a reasonably strict and guarded construction. The * Mas

act of municipal legislation merely, but a contract which, if valid, it could not revoke or limit, and which is consequently void as a perpetuity. Milhau v. Sharp, 27 N. Y. 611; post, § 76, p. 547.

4 Hatch v. Vermont Central Railw., 25 Vt. 49; Philadelphia & Trenton Railw., 6 Whart. 25; Monongahela Nav. Co. v. Coon, 6 Watts & Serg. 101. See also Protzman v. Ind. & Cin. Railw., 9 Ind. 467; Evansville & Crawfordsville Railw. v. Dick, id. 433.

Queen v. Eastern Co.'s Railw., 2 Q. B. 347; Glover v. North Staffordshire Railw., 16 Q. B. 912; s. c. 5 Eng. L. & Eq. 335.

Gray v. Liverpool & Bury Railw., 9 Beav. 391; s. c. 4 Railw. C. 235–240. Hence under a general grant of power to take land for the track of a railway, with sidings and branches to the towns along the line, the company have no power to take land for a temporary track during the period of constructing the main line. Currier v. Marietta & Cin. Railw. Co., 11 Ohio N. S. 228. Nor can a railway company, under their general powers, take lands at a distance from their line not intended to be used in its construction. Waldo v. Chicago, St. Paul & Fond du Lac Railw. Co., 14 Wis. 575. Nor can a railway company take land compulsorily for the purpose of erecting a manufactory of railway cars, or dwellings to be rented to the employés of the company. But they may take land for the purpose of storing wood and lumber used on the road, or brought there for transportation upon it. And when land is taken for a legitimate purpose, the decision of the locating officers of the company is conclusive as to the extent required for that purpose, unless the quantity so taken is clearly beyond any just necessity. Vt. & Canada R. v. Vt. Cent. R., 34 Vt. 2.

ter of the Rolls, in this last case, says, "In these cases it is always to be borne in mind, that the acts of parliament are acts of sovereign and imperial power, operating in the most harsh shape in which that power can be applied in civil matters, solicited as they are, by individuals, for the purpose of private speculation and individual benefit." And in another case the rule of construction is thus laid down:

6. "These powers extend no further than expressly stated in the act, except where they are necessarily and properly acquired for the purposes which the act has sanctioned." This last category, as here observed, is often a most perplexing one, in regard to its true extent and just limits. And doubtful grants are to be construed most favorably towards those who seek to defend their property from invasion. And a railway, having an option between different routes, can only take lands on that route which they ultimately adopt; and if they contract for land upon the other routes, cannot be compelled to take it.9 The time for exercise of these compulsory powers, by the English statutes, is limited to three years,10 except for improvements necessary for the public safety, in conformity with the certificate of the Board of Trade.

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It was decided by the House of Lords, reversing the judgment of the Lords Justices, but affirming that of the Vice-Chancellor, that where the legislature authorizes a railway company to take, for their purposes, any lands described in their act, it constitutes

7 Colman v. The Eastern Counties Railw., 10 Beav. 1; s. c. 4 Railw. C. 513, 524; State v. B. & O. Railw., 6 Gill, 363; Simpson v. So. Staff. Waterworks Co., 11 Jur. N. S. 453. And in a recent case in Kentucky, the rule is thus stated: The rules of construction which apply to charters delegating sovereign power to corporations do not depend upon the question whether the corporation is a private or a public one, but on the character of the powers conferred, and the purposes of the organization. The power of a railway, or other private corporation, to take private property for its use, being a delegation of sovereign power, must be construed as it would be if delegated to a municipal corporation. And the powers of private and public corporations, with respect to their property, are governed by the same principles, and, in the absence of express provisions of law, depend upon the purposes for which the corporation was formed. Bardstown & Lou. R. R. Co. v. Metcalfe, 4 Met. (Ky.) 199.

8 Sparrow v. Oxford, W. and W. Railw., 9 Hare, 436; s. c. 12 Eng. L. & Eq. 249; Shelford on Railways, 233.

9 Tomlinson v. Man. & Birm. Railw., 2 Railw. C. 104; Webb v. Man. & Leeds Railw., 1 Railw. C. 576.

10 Such a limitation is held obligatory wherever it exists. Peavey v. Calais Railw., 30 Maine, 498; s. c. 1 Am. Railw. C. 147.

them the sole judges as to whether they will or will not take those lands, provided that they take them bona fide with the purpose of using them for the purposes authorized by the legislature, and not for any sinister or collateral purpose.11 And that a court of equity. cannot interfere, even upon the decision of an engineer, to curtail the power of the company, in regard to the quantity of land sought to be obtained by it, so long as it acts in good faith. But in a later case 12 it was said that the House of Lords, in the case of Stockton & Co. v. Brown, did not decide that the company, by its engineer, had an unlimited discretion to take any land which the engineer would make affidavit the company required for use in the construction of their works, without stating what works; but that it must appear to what use they proposed to put the lands, and if that came fairly within the range of their powers, the company could not be controlled in the bona fide exercise of its discretion as to the mode of constructing their works, within the powers confided to them by the legislature. The company will not be restrained from taking land for the purpose of depositing waste upon, although not confident of requiring it for any other purpose connected with the construction." 13

7. As a general rule in the English courts of equity, if the construction of a railway charter be doubtful, they will remit the party to a court of law to settle the right, in the mean time so exercising the power of granting temporary injunctions as will best conduce to the preservation of the ultimate interests of all parties.14

8. Similar rules of construction have prevailed in the courts. of this country. The language of Ch. J. Taney, in the leading case upon this subject, in the national tribunal of last resort, is very explicit. "It would present a singular spectacle, if, while the courts of England are restraining within the strictest limits the spirit of monopoly and exclusive privilege in nature of monopoly, and confining corporations to the privileges plainly given to them in their charter, the courts of this country should be found enlarg

11 Stockton & Darlington Railw. Co. v. Brown, 6 Jur. N. S. 1168; s. c. 9 Ho. L. C. 246; North Missouri Railw. v. Lackland, 25 Mo. 515; Same v. Gott, id. 540. 12 Flower v. London Br. & S. Coast Railw. Co., 2 Drew. & Sm. 330; s. c. 11 Jur. N. S. 406.

13 Lund v. Midland Railw. Co., 34 L. J. Ch. 276.

14 Clarence Railw. v. Great North of England, C. & H. J. Railw., 2 Railw. C. 763. But the practice of courts of equity in this respect, is by no means uniform. See post, chap. xxviii.

ing these privileges by implication." 15 And in commenting upon the former decisions of that court, upon this subject, the same learned judge here says, "the principle is recognized, that in grants by the public nothing passes by implication." 16 And other cases are here referred to in the same court, in support of the same view.17 9. But it is not to be inferred that the courts in this country, in England, intend to disregard the general scope and purpose of the grant, or reasonable implications, resulting from attending circumstances. But if doubts still remain, they are to be solved against the powers claimed.18

or

*10. But where the right of the company to appropriate the land is perfected under the statute, they may enter upon it without any process for that purpose, and the resistance of the owner is unlawful, and he may be restrained by injunction, but that is unnecessary. The statute is a warrant to the company.19

11. But a grant to a railway to carry passengers and merchandise from A. to M., does not authorize them to transport merchandise from their depot in the city of M. about the city, or to other points, for the accommodation of customers.2

20

12. There has been considerable discussion in the English 15 Charles River Bridge v. Warren Bridge, 11 Pet. 420.

16 U. S. v. Arredondo, 6 Pet. 691, 738.

17 Jackson v. Lamphire, 3 Pet. 280; Beaty v. Knowler, 4 Pet. 152, 168; Providence Bank v. Billings & Pittman, 4 Pet. 514. And that court not only adheres to the same view still, but may have carried it, in some instances, to the extreme of excluding all implied powers. See also upon this subject, Commonwealth v. Erie & Northeast Railw., 27 Penn. St. 339; and Bradley v. New York & New Haven Railw., 21 Conn. 294.

18 Perrine v. Ches. & Del. Canal Co., 9 How. 172; Enfield Toll Bridge v. Hartford & N. H. Railw., 17 Conn. 454; Springfield v. Conn. River Railw., 4 Cush. 63; 30 Maine, 498; 9 Met. 553; 1 Zab. 442; 3 Zab. 510; 21 Penn. St. 9; 15 Ill. 20.

The following cases will be found to confirm the general views of the text: Tuckahoe Canal Co. v. Tuckahoe Railw., 11 Leigh, 42; Greenleaf's Cruise, Vol. 2, 67, 68; Thompson v. N. Y. & H. Railw., 3 Sandf. Ch. 625; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547 ; Moorhead v. Little Miami Railw., 17 Ohio, 340; Stormfeltz v. Manor Turnpike Co., 13 Penn. St. 555; Toledo Bank v. Bond, 1 Ohio N. S. 636; Cincinnati Coll. v. State, 17 Ohio, 110; Cam. & Amboy R. v. Briggs, 2 Zab. 623; Carr v. Georgia Railw. & Banking Co., 1 Kelly, 524; 7 Ga. 221; New London v. Brainard, 22 Conn. 552; Bradley v. N. Y. & N. H.. Railw., 21 Conn. 294; 9 Ga. 475; Barrett v. Stockton & D. Railw., 2 M. & G. 134.

19 Niagara Falls & Lake Ontario Railw. v. Hotchkiss, 16 Barb. 270. 20 Macon v. Macon & Western Railw., 7 Ga. 221.