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 deposited 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 19 Commonwealth v. The Fitchburg Railw., 8 Cush. 240. See also Brigham v. Agricultural Branch Railw, 1 Allen, 366. It seems agreed that slight deviations 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 N. S. 328; Champion v. Memphis & C. Railw. Co., 35 Miss. 692; Fry v. Lex. & Big S. Railw. Co., 2 Met. (Ky.) 314; Aurora v. West, 22 Ind. 88; Smith v. Allison, 23 id. 366; Miss. O. & R. Railw. v. Cross, 20 Ark. 443; Witter v. same Co., id. 463; Illinois Grand T. Railw. v. Cook, 29 Ill. 237. See also K. R. & R. Railw. v. Marsh, 17 Wisc. 13. 20 Commonwealth v. Erie & North East Railw., 27 Penn. St. 339. 21 Pontchartrain Railw. v. Lafayette & Pont. Railw., 10 Louis. Ann. 741. 22 Hitchcock v. Danbury & Norwalk Railw., 25 Conn. 516. 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.28 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 termini, is considerably discussed in a case in New Jersey.25 *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 point.26 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 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. 26 Atkinson v. Mar. & Cin. Railw. Co., 15 Ohio N. S. 21. 27 Weld v. London & S. W. Railw., 32 Beav. 340; s. c. 9 Jur. N. S. 510. not, in the construction of the bridge, be allowed to deviate from the plans and sections.28 21. Under a charter which fixes the terminus of a railway at or near a certain point, a large discretion is conferred upon the company in locating their road, which will not be controlled by the courts, unless for very clear excess, or where bad faith is shown. And where a company is empowered to extend their line from a point at or near its present terminus, "in Fall River, in a southerly direction to the line of Rhode Island," a location starting from a point on the line 2,475 feet from the terminus was held authorized.29 § 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 include turnouts and side-tracks.2 But this might not exclude branch lines extending any considerable distance from the main track. 29 Atty.-General v. Tewksbury & Great Malvern Railw. Co., 1 De G., J. & Sm. 423; s. c. 9 Jur. N. S. 951. 29 Fall River Iron Works v. Old Colony & Fall River Railw., 5 Allen, 221. 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." 2 Barker v. Troy & Rutland Railw., 27 Vt. 766. 3. But, in general, the English courts have chosen to adhere to the rule laid down by Parke, J., in Leigh v. Hind, that distance is to be measured in a direct line, through a horizontal plane. Thus, in settlement cases, where the pauper laws provide that no person shall retain a settlement gained by possessing an estate or interest in a parish for a longer time than he shall inhabit "within ten miles thereof," it was held, that the distance was to be measured in a direct line from the residence to the nearest point of the parish. And the twenty miles within which the parties are required to reside, in certain cases affecting the jurisdiction of the county courts, by the recent statute, 9 & 10 Vict. c. 95, § 128, is to be computed in a direct line, without reference to the course of travel.4 4. And where a turnpike act provided, that no toll-gate should be erected nor any toll taken, within three miles of B., and the road did not extend to B., but connected with another turnpike which did, and also a public road, made since the act was passed, it was held, that the three miles should be measured "in a straight line on a horizontal plane, and not along any of the roads." 5 * 5. And where the rate of fare is fixed by the mile, and no provision made for fractions of a mile, the company can only charge the prescribed tariff for the full mile traversed. But the English statute provides specially for fractions of a mile. 3 Regina v. Saffron-Walden Railw., 9 Q. B. 76. Butler, 5 El. & Bl. 92; s. c. 30 Eng. L. & Eq. 264. Lake v. 5 Jewell v. Stead, 6 El. & Bl. 350; s. c. 36 Eng. L. & Eq. 114. Lord Campbell, Ch. J., said: "I am of opinion that the distance is to be measured by a straight line upon a horizontal plane." Lake v. Butler, supra, lays this down as a general rule. Lord Campbell, Ch. J.: "I think we ought to adopt that mode which is most convenient and most certain. If the distance is to be measured by the nearest mode of communication, uncertainty will be introduced, whether it may be by foot way, or bridle way, or carriage way; and in some cases the distance must be travelled by all the three modes; and in others by a tidal river, in which case the distance would vary, at different times of the day; also the distance by carriage road might be shortened, or lengthened, by a new road being made. But if the other mode of calculation is adopted, no uncertainty will arise." Rice v. Dublin & Wicklow Railw., 8 Ir. Com. Law, 160. 7 21 & 22 Vic. c. 75 s. 1. 396 SECTION III. Mode of Construction, to be done with least Damage. 1. Does not extend to form of the road, but the mode of construction. 2. Special provisions of act not controlled by this general one. 3. Works interfered with, to be restored, for all uses. § 107. 1. It has been held, that the general provisions of the Railway Clauses Consolidation Act, that in the exercise of their powers, the company shall do as little damage as possible, and shall make satisfaction, to all parties interested, for all damages sustained by them, does not extend to the form of constructing the railway. It does not apply to what is done, but to the manner of doing. 2. Hence, if by other sections of the statute or special act the company are required to build bridges in a particular form, they may still do so, notwithstanding it may cause more damage to the owners of land than to build them in some other form.1 3. And where, in a parliamentary contract between the promoters of a railway and the proprietors of a ropery, it was stipulated that the railway should be so constructed, that when finished the level of the ropery should not be altered, nor the surface of the ropery in the least diminished, it was held the company were bound to restore the surface, so as to be available for all purposes to which it might have been applied before the construction of the railway, and not for the purposes of the ropery only.2 1 Regina v. The East & W. I. Docks and B. J. R., 2 El. & Bl. 466. 2 Harby v. The East & W. I. Docks and B. J. R., 1 De G. M. & G. 290. |