is responsible, as a common carrier, for the safe delivery of the passengers and freight, the same as in other cases. And where by an agreement between the two companies, the latter is to indemnify the former from all claims for damages in consequence of the transportation, unless caused by the default of the transporting company, or from some defect in its road, this will leave the transporting company responsible, both under the contract, and independently of it, upon general principles, for an injury caused by a defect in its track, although without its fault."1

*SECTION IV.

Extent of the Powers and Duties of Lessees of Railways.

1. Statement of the points in an important | 2. Lessees of railways liable for their own English case.

acts, and for many acts of lessors. § 145. 1. A very elaborate and important case upon the relative rights and duties of the lessors and lessees of railways came before the court of C. B. in June, 1851, and the Exchequer Chamber in January, 1853. The importance and difficulty of the subject, and the few cases upon it which have yet arisen, will justify an extended notice of the points decided in the court of last resort. In 1836 a company (afterwards called the West London Railway Company) was incorporated by act of Parliament for the making of a railway from the Kensington Canal to join the London and Birmingham (afterwards called the London and Northwestern) and the Great Western Railways at a place called Holsden Green, and certain duties were by the act. cast upon the company; and, amongst other things, it was provided that, if the railway should be abandoned, or should, after its completion, cease for the space of three years to be used as a railway, the land taken by the company for the purposes of the act should revert to the owners of the adjoining land.

In February, 1837, the West London Railway Company entered into an agreement with the Great Western Railway Company, under which the last-mentioned company bound themselves to stop certain of their trains at a point where their railway inter

" Vermont & Mass. Railw. v. Fitchburgh Railw., 14 Allen 462.

1 The West London Railw. v. The London & N. W. Railw., 11 C. B. 327; s. C., 18 Eng. L. & Eq. 481.

sected the West London Railway, for the purpose of transferring passengers and goods from one railway to the other, and to stop their trains for the purpose of meeting corresponding trains of that company, in the manner particularly detailed in the deed. In 1840, another act, 3 & 4 Vict. c. 105, passed, giving further powers to the West London Railway Company; the thirty-fourth section, reciting the agreement of February, 1837, regulated the *mode of crossing, until the plaintiffs' railway should be completed; the thirty-sixth section saved the plaintiffs' right under that agreement; and the thirty-seventh section provided, that if the plaintiffs' line was abandoned, or ceased to be used as a railway for three years after its completion, then, on payment or tender to them by the Great Western Railway Company of the purchasemoney of the piece of land where the railways crossed, the said land should vest in the Great Western Railway Company.

By a subsequent act (8 & 9 Vict. c. 156), reciting that "it had been found that the said West London Railway [which it appeared in evidence had been worked with passenger trains as well as with goods trains] could not be worked, as a separate and independent undertaking, with advantage to the proprietors thereof, but that the same might be advantageously worked and used in connection with the said London and Birmingham Railway and the said Great Western Railway, or either of them, by both or either of the companies to whom the said last-mentioned railways belonged; that the West London Railway Company were therefore desirous of letting the said railway on lease to the London and Birmingham Railway Company; and that the last-mentioned company were willing to accept such lease, subject to certain terms and conditions which had been mutually agreed on between the said two companies," -the West London Railway Company was authorized to lease to the London and Northwestern Railway Company their railway, and all their rights, powers, and privileges in relation thereto, subject to the provisions of the act, and to the performance of the conditions to be mentioned in such lease.

By the lease, which was afterwards executed in pursuance of this act, the London and Northwestern Railway Company covenanted, amongst other things, that they would "at their own expense, during the continuance of the lease, efficiently work and repair the railway and works thereby demised, and indemnify the West London Railway Company against all liabilities, loss, charges,

*

and expenses, claims and demands, whether incurred or sustained in consequence of any want of repair, or in consequence of not working, or in any manner connected with the working of the same railway or works; but the West London Railway Company shall have no control whatever over the working or management by the London and Birmingham (Northwestern) Railway Company of the West London Railway or works. It was held:

That in order to perform their covenant to work efficiently, the defendants were not bound under all circumstances to work the line for passenger traffic; but that, if as much gross proceeds could be obtained by efficiently working the railway for goods only, as for passengers only, or for both passengers and goods, the covenant was well performed, - Platt, B., Martin, B., not concurring.

That the agreement of February, 1837, with the Great Western Railway Company, was, by virtue of the provisions in the leasing act, and the lease itself, transferred to the defendants, the lessees; and, consequently, that they had power to compel the Great Western Railway Company to stop trains on their line, pursuant to the provisions of that agreement. That, although the defendants had power to stop the Great Western trains, they were not bound to exercise it, necessarily, as a part of the efficient working of the line demised; and that they were not bound necessarily to work the demised line in connection with the trains on the Great Western Railway.

That there was no covenant in the lease to bind the defendants to work the demised line in connection with either or both their own or the Great Western Railway; but that it would be for the jury to say whether or not they could practically work the line efficiently, without some connection with one or other of those railways.

That, for the purpose of considering the liability of the defendants, they were not to be treated by the jury as if they were lessees of a separate and independent line, having no control over the other two railways; but that the covenant to work the demised line efficiently, must be construed with a reference to the subjectmatter, and the character of the defendants.

That the obligation of the defendants under their covenant, was not limited, as decided by the court below, to the indemnification of the plaintiffs from the obligations cast upon them by their acts of incorporation. The court say, in substance:

* If this railway had been leased to a simple individual, or company, without any connection with any other railway, and leased alone, the measure of efficient working, we cannot help thinking, would be very different from what would be required from a company whose line was connected with it, who had the entire control over their own line, and were armed with a power of adding to the traffic of the railway, by the control possessed over another line, and whose capabilities and powers in this respect were reasons which disposed parliament to permit the lease to be made to them.

It is difficult, indeed almost impossible, to define the precise nature and degree of efficient working which such a company ought to apply, under this covenant; not so difficult to say that it ought to be different and greater than would be required from a company or an individual who had nothing but the railway leased. They could only be required to supply convenient accommodation and attendance for the receipt, and sufficient means of carriage, of such goods and passengers as might be offered at one terminus, or any intermediate station, to be carried to the other terminus, or some other intermediate station; and this, however small the gross receipt might be.

But that would be too small a measure of efficient working, in the case of these defendants, who have the power of supplying more goods and passengers themselves by facilitating the transit of both from Holsden to the Kensington Terminus, or Great Western Station, or by increased facilities for receiving them at the Kensington Terminus, by arrangements within their power, without any serious injury to their own concern.

They are certainly not bound to make a sacrifice of their own concerns for the purpose of efficiently working this line so as to produce the greatest profit to the plaintiffs and themselves.

The covenant must have a reasonable construction in this respect. But they are, we think, bound to do more than a lessee of merely the railway in question would do, unconnected with any other.

2. It seems to be regarded as settled that the persons or corporation who come into the use of a railway company's powers and privileges, are liable for their own acts while continuing *such use, and also for the continuance permissively of any wrong which had been perpetrated by such company upon land-owners

or others, by means of permanent erections, which still remain in the use of their successors.2 Thus it has been held that the lessees of a railway are liable to a penalty, under the statute, for not having a bell upon their engines, and not ringing it, as required by the statute. But the lessees of a railway are not liable for the acts of the servants of the lessors.4

SECTION V.

Contracts between different Companies regulating the Traffic.

1. Such contracts generally held valid and 2. Arrangements to avoid competition valid. binding.

§ 146. 1. It seems in general to have been considered, that contracts between different connecting companies, with a bona fide view to regulate traffic, in a reasonable and just manner, were legal and binding. But when it is considered that these * companies have to a very great extent a monopoly of the traffic and travel of the country, the power to regulate fares and freight by arrangement between the different companies is certainly one very susceptible of abuse. But there is ordinarily very little

2 In regard to the construction of contracts between different companies for the mutual use of each other's line, or the line of one road by the other, tolls, &c., see the Lancashire & Yorkshire Railw. v. The East L. Railw., 7 Exch. 126; 8 Eng. L. & Eq. 564; s. c. reversed in Exchequer Ch., 9 Exch. 591; 25 Eng. L. & Eq. 465; and affirmed H. Lords, 5 Ho. Lds. 792; 36 Eng. L. & Eq. 34. It was held in a late Scotch case, on appeal in the House of Lords, that under an act of parliament requiring one company to accept a lease of and operate the other's road, so soon as it was in readiness, the lessees were bound to accept any reasonable portion of the road, so soon as completed, it being such a portion as might be worked with advantage. Edinburgh & G. Railw. v. Stirling & D. Railw., 1 McQu. Ho. Lds. 790; Brown v. The Cayuga & Susquehanna Railw., 2 Ker486. 3 Linfield v. Old Colony Railw., 10 Cush. 562.

nan,

• Walford on Railways, 184, citing two cases not reported.

1 Shrewsbury & Birm. Railw. v. London & N. W. Railw., 17 Q. B. 652 ; s. c. 9 Eng. L. & Eq. 394. Lord Campbell says here, That if the object of the contract were to create a monopoly, and to deprive the public of all benefit of competition, it might be illegal, but an agreement that one company shall not interfere or compete with the other, is no more illegal than a contract by which one tradesman or mechanic agrees not to continue his business in a particular place. Same case in Chancery, before Lord Cottenham, 2 Mac. & Gordon, 324, where a similar view is taken of the legality of the contract. Lord Langdale, M. R., in Colman v. The Eastern Counties Railw., 10 Beav. 1; s. c. 4 Railw. C. 513.