2. These railways, built chiefly by the owners of coal-mines* 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

* 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; s. c. 11 M. & W. 429.

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; s. c. 6 M. & W. 174. Farrow v. Vansittart, 1 Railw. C. 602; Durham & Sunderland R. v. Walker, 3 Railw. C. 36; s. c. 2 Q. B. 940. 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 of the act, but extended to subsequent proprietors. Bishop v. North, 3 Railw. C. 459; s. c. 11 M. & W. 429.

*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

3. That if the railway was such an one 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; s. c. 2 Q. B. 940.

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 Rex v. Severn R. 2 B. & Ald. 646. But see Thorne v. Taw Vale R. 13 Beavan, 10.

use.

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; s. c. 1 Cr. & Ph. 85; 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.

+ 2 Kent, Comm. 276, 277; Stockbridge v. West Stockbridge, 12 Mass. 400; Hagerstown Turnpike Co. v. Creeger, 5 Har. & J. 122; Greene v. Dennis, 6 Conn. 292, 302, Hosmer Ch. J.; Franklin Bridge Co. v. Wood, 14 Ga. 80. But from the case of Wilson v. Cunningham, 3 California 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 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 rail

*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."

ways 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. 182.

* 4

§ 2. 1. THE mode of instituting railway enterprises, in England, is more formal and essentially different, from that adopted in most of the American States. There the promoters usually associate under two provisional deeds, the one called a "Subscribers' Agreement," and the other a "Subscription, or Parliamentary Contract," which are expected only to serve as the basis of a temporary organization till the charter is obtained. This is specifically and often in detail to some extent provided for, in the subscribers' agreement. A board of provisional directors is provided to carry forward the enterprise, whose powers are defined in the subscribers' agreement or deed of association, and whose acts will not bind the members unless strictly within the powers conferred by the deed.

2. Under this form of association, the subscribers are bound by the act obtained, if within the powers conferred by the deed, even where it involves the purchase of canal, and other property by the company.1 And courts of equity often interfere to restrain the provisional directors from exceeding their * powers under the deed,2

1 Midland Great Western Railway v. Gordon, 16 M. & W. 804.

Gilbert v. Cooper, 4 Railw. C. 396; s. c. 15 Sim. 343. All parties concerned must be made parties to the bill, even shareholders of whom it is alleged a rival company propose to purchase shares, to destroy the independence of one

or misapplying the funds, or delaying payment of the debts of the association.3

3. The provisional directors usually issue scrip certificates, which pass from hand to hand by delivery merely, and after the charter is obtained, the scripholders are registered as shareholders in the company, and thereby become entitled to all the rights, and subject to all the liabilities of the shareholders.4

4. And if the original subscriber sell the scrip to one who omits to have his name registered as a shareholder, by reason of which the original subscriber cause his name to be registered and sell the shares again, he will be held to account for the avails of the second sale, as a trustee for the first purchaser.5

*

5. But the company are not obliged to accept of the holders of scrip as shareholders, in discharge of the original subscribers, it has been said, but may insist upon registering the original subscribers to the deed of association, to whose aid it may be presumed the promoters looked in undertaking the enterprise, which by their act of incorporation they are morally, and in some cases legally, bound to carry forward. But the English decisions, upon the whole, hardly seem to justify this proposition. The subscriber cannot abandon the obligation at will. But if the scrip is transferable, by delivery, it would be strange if the holder was not entiof the companies connected with the common enterprise. Dorchester Railway, 4 Railw. C. 213; s. c. 10 Jur. 343. 3 Lewis v. Billing, 4 Railw. C. 414; s. c. 10 Jur. 851. Bagshawe v. Eastern Union Railway, 6 Railw. C. 152; s. c. 7 Hare, 114; Bryson v. Warwick & Birmingham Canal Co. 23 Eng. L. & Eq. & R. 91; s. c. 4 De G. Mac. & G. 711. In this last case, the railway company being only provisionally registered, expended £10,000 in the purchase of the stock of the defendants. The railway finally failing to go into operation, in the process of winding up, one of the shareholders was allowed to institute proceedings in equity, on behalf of himself and others, being shareholders, to compel defendants to refund the money, and the court held the contract illegal, and compelled the defendants to refund the money received under it.

Greathed v. S. W. &

Post, § 47; Birmingham, B. & Th. J. Railway v. Locke, 1 Q. B. 256; London Grand J. Railway v. Graham, id. 271; s. c. 2 Q. B. 281; The Cheltenham & G. W. U. Railway v. Daniel, 2 Railw. C. 728; Sheffield & A. & M. Railway v. Woodcock, 2 Railw. C. 522; s. c. 7 M. & W. 574.

5 Beckitt v. Bilbrough, 19 Law J. 522; 8 Hare, 188.

Hodges on Railways, 97.

7 Kidwelly Canal Co. v. Raby, 2 Price, 93; Great North of Eng. Railway v. Biddulph, 2 Railw. C. 401; s. c. 7 M. & W. 243, where the question is raised, but not determined.