Master 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:

7

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.8 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 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. R. 2.

Colman v. The Eastern Counties Railw., 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 railroad 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., 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 R. 498; s. c. 1 Am. Railw. C. 147.

necessary for the public safety, in conformity with the certificate of the Board of Trade.

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 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 ast will best conduce to the preservation of the ultimate interests of all parties.14

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. R. 515; Same v. Gott, Id. 540. 12 Flower v. London Br. & S. Coast Railw. Co., 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.

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 enlarging 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 implicaAnd other cases are here referred to in the same court, in support of the same view.17

tion." 16

*

9. But it is not to be inferred that the courts in this country, or 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

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 ad

heres 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. R. 294.

18 Perrine v. Ches. & Del. Canal Co., 9 How. 172; Enfield Toll Bridge v. Hartford & N. H. Railw., 17 Conn. R. 454; Springfield v. Conn. River Railw., 4 Cush. 63; 30 Maine R. 498; 9 Met. 553; 1 Zab. 442; 3 Zab. 510; 21 Penn. St. 9; 15 Ill. R. 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 Sand. Ch. 625; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547; Moorhead v. Little Miami Railw., 17 Ohio R. 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 R. 110; Cam. & Amboy R. v. Briggs, 2 Zab. 623; Carr v. Georgia Railw. & Banking Co. 1 Kelly, 524; 7 Ga. R. 221; New London v. Brainard, 22 Conn. R. 552; Bradley v. N. Y. & N. H. Railw., 21 Conn. R. 294; 9 Ga. R. 475; Barrett v. Stockton & D. Railw., 2 M. & G. 134.

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.20

12. There has been considerable discussion in the English courts, within the last few years, in regard to many recent statutes there, for the improvement of markets and streets in the metropolis or districts adjoining, through the agency of the municipal corporations. And while the courts there, and especially the House of Lords, in a very recent case,21 adhere strenuously to the former rule, in regard to private corporations, that they can only take lands compulsorily, for the needful purposes of the works which they are authorized by the legislature to construct; on the other hand, they hold that it is competent and proper, under parliamentary powers granted for that purpose, to allow municipal corporations to reimburse the expense of any improvements which they are authorized to carry forward, in their streets and squares or markets, by taking the lands adjoining such improvements, at the price of their value before such improvements, and selling them at the advanced prices caused by such improvements. And it was held that the municipality having, before the act passed, contracted for the sale of such of the lands so to be taken as they should not require for the purpose of the public improvement, did not disqualify them from exercising the discretion reposed in them by the act, as to how much land they would take. This rule of law in regard to the proper mode of reimbursing the expense of great public improvements is not very different from that which has been extensively in use in America under the name of betterment acts, whereby the expense is assessed upon the adjoining property Niagara Falls & Lake Ontario Railw. v. Hotchkiss, 16 Barb. 270.

20 Macon v. Macon & Western Railw., 7 Ga. R. 221.

21 Galloway v. The Mayor & Commonalty of London and the Metropolitan Railw. Co., et vice versa, 12 Jur. N. S. 747. (1866.)

owners, upon some scheme of equalization, presumptively apportioning the loss and benefit equitably.22

4. Filing the location in the land office is no- 7. Subscriptions payable in land without com

tice to subsequent purchasers.

5. After damages are assessed and confirmed

pensation, a court of equity will enforce payment.

§ 65. 1. It has been held that a railway company must comply with all the conditions in its charter, or the general laws of the state, requisite to enable it to go forward in its construction, before it acquires any right to take land by compulsion. In England one of these conditions in the general law is, that stock, to the amount of the estimated cost of the entire work, shall be subscribed. And where the charter or the general laws of the state gave the right to take land for the road-way only upon the legislature having approved of the route and termini of the line, it was held the company could not proceed to condemn lands for that purpose until this approval was made.1

2. And where the act of the legislature, under which a railway was empowered to take lands, required the company to apply to the owner, and endeavor to agree with him as to the compensation, unless the owner be absent or legally incapacitated, they have no right to petition for viewers until that is done.2 The petition should allege the fact that they cannot agree with the owner.2

22 Post, § 229, and cases cited in n. 22, 23.

1 Gillinwater v. The Mississippi & A. Railw. Co., 13 Ill. R. 1.

2 Reitenbaugh v. Chester Valley Railw., 21 Penn. St. 100. But where the company have the right to lay their road, not exceeding six rods in width, and have fixed the centre line of the same, they may apply for the appointment of. appraisers, and determine the width of the road, any time before the appraisal. Williams v. Hartford & New Haven Railw., 13 Conn. R. 110. But slight, if indeed any evidence of this failure to agree with the land-owner is required, where the claimant appears and makes no objection on that ground. Doughty