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the location is thus formally adopted, and in some cases not until the proper filings are made. In some cases where filing is not a prior requirement, priority in instituting condemnation proceedings under the right of eminent domain will serve to secure title against another railroad. Sometimes failure to build within a limited time means abandonment of location and forfeiture of a right previously acquired; statutory provisions may often cover this.

Discretion as to Route. Railroad authorities have reasonable discretion in selecting the route. The railroad's rights in this matter must be reasonably exercised, but there is no necessity for proving the route the best or the only feasible one.

It is often possible to make minor changes in location; in some cases rights may have been acquired by landowners or perhaps by another railroad, and the change may involve expense or other difficulty for such

reasons.

In some States no new line can be constructed until a certificate of exigency" is issued by the Railroad Commission. The object is to prevent the building of unnecessary lines which the public must eventually support.

Lands of Other Railroads. Unless the charter or some statute authorize it, a newer railroad has not the right to occupy and use lands previously appropriated to another railroad, but the State has the right to specifically grant such authority. The right to cross another railroad may often be implied. Crossing at grade is in disfavor, and in very many cases will not be allowed if any other feasible method is apparent.

Highway Crossings. Unless some statute prevents it, crossing a highway at grade is allowable, but many States have passed laws not only forbidding or restricting this, but even providing for separating the grades of railroads and highways at existing crossings, and providing for the distribution of the expense of the change. In Massachusetts the railroad pays 65 per cent, the State 25 per cent, and the city or town 10 per cent of such cost. There is no uniformity in the provisions of those States which have made any similar provisions.

In some cases crossings must be maintained for the benefit of private owners of farms which have been cut in two, and a lawyer should be consulted as to the rights of such owners.

Operation at Crossing. In the operation of railroads at crossings of other railroads, or of highways at grade, the precautions necessary either at Common Law, or required by Statute Law, should be well understood. For regulating crossings with railroads, there is often a statute requiring a full stop before crossing or else the installation of an adequate interlocking plant.

Right of Way. Next comes the securing of lands for right of way, station grounds, or other railroad purposes. While this is not engineering, nevertheless the engineer is often found to be the man most available to attend to such matters. If he engages in this work, he will probably be expected to fill out the blanks in deeds for real estate, to see that the deeds are properly signed and acknowledged, and either filed or delivered to headquarters for filing; he may or may not be called upon to look up titles. Where State, county, city, or town lands, whether streets or otherwise, are to be crossed or occupied, proper legal steps must be taken to secure such occupancy or acquirement as may be necessary. Where navigable streams or bodies of water are to be crossed, the approval of the United States authorities must be secured.

Engineer's Qualifications. The engineer should prepare himself by consultation with a lawyer to do properly the things indicated above; unless unusually experienced he should not attempt the duties without such consultation. The engineer in settling for right of way, if not a natural trader, should make a point of acquiring skill in that line; with some experience he ought to become at least the equal of most of the landowners with whom he deals. Square dealing on his part, rather than sharp practices, will prove of advantage to the railroad. Lands will seldom be bought at their ordinary value and perhaps ought not to be; experience indicates that lands for right of way cost about three times the reasonable value of such lands if bought under ordinary conditions and in whole pieces. Eminent Domain. The engineer should understand that where no agreement can be reached, the required lands, and under the laws of some States, material for construction also, may be secured under the "right of eminent domain." The right of the public to the service of common carriers is such that the courts have held a railroad to be a "public use in the sense necessary for the exercise of this right.

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After a railroad has been located and constructed, it is the usual rule that the right of eminent domain cannot be revived for the purpose of taking lands to straighten the lines, to double-track the road, or for other improvement, unless a new grant of authority for that purpose be delegated by the State.

Private Tracks. Tracks to factories or mines, or what are called industry tracks, are not available to the general public; the general public has no rights in them. The use is therefore a private use, and the right of eminent domain cannot be invoked to acquire any necessary lands. The same may be true of lumber lines which are sometimes rather extensive.

Methods of Securing Lands. In securing lands, especially for station grounds, localities and individuals are often willing either to contribute outright, to sell at low prices, or to aid in some way. Such action on their

part must, in general, be secured previous to the determination of the route, or of the definite location. Bonds or agreements as to price are often secured in advance of filing the location. In furtherance of such action, locating engineers sometimes run alternate locations, and the alternate line does not always have merit. This savors somewhat of sharp practice. Forms used for bonds or agreements should have the approval of some lawyer.

It is further true that under some circumstances an agreement to locate on a stated line or to locate a station in a special place has been found to be illegal as against public policy; this illegality, however, is not easy to establish. A company may legally re-locate stations for good reasons if it properly consults public convenience in doing so. The United States laws allow the right of way and station grounds upon the public domain to be acquired simply by proper filing.

Right of Way Title. What title the railroad acquires in its right of way is a matter of interest. When the right of way is acquired through the exercise of the right of eminent domain, only an easement for railroad purposes is secured, and when a court of equity enforces specific performance of contract, the same rule will no doubt hold; but where a deed in fee simple is taken, the railroad secures, in most States, a clear title and may reconvey for any use. In some States, however, it is held that the railroad has no power to acquire lands for other than purely railroad purposes, and in case of abandonment or disuse, the title reverts to the previous owner.

The railroad may acquire, by grant, lands for purposes not directly connected with railroad construction or operation, where the lands could not be taken by right of eminent domain.

Construction. After the lands have been secured, the work of construction follows, and Part II of this treatise deals with the details of contract letting, while the whole field of law as outlined in Part I may be involved in some way or come into play during the performance of the contract.

Examples. In the excavation of cuts, damage may occur by violating the right to lateral support. Bridges and culverts tend to obstruct the flow of streams. A change of channel may interfere in various ways with the flow of water in the streams or over the surface. An embankment or an undrained excavation may cause stagnant waters and create a nuisance. Surface waters may be gathered and cast in great volume on lower lands. Trespass upon lands or some form of negligence during construction is also liable to occur.

Fencing and Cattle. The railroad right of way is commonly fenced, and domestic animals, particularly cattle, cannot then get into these

lands. The Common Law does not require the railroad to fence its lands; the owner of animals must fence so as to confine them. Cattle have no right to roam at large, and in the absence of laws requiring fencing, the courts have sometimes held the railroad not liable where cattle had strayed upon the track and had been killed. Touching damages, one can sympathize with the farmer who refused to state the value of his cow until he received an answer to his question, "Be you the assessor or the railroad claim agent?" In many States, however, railroads are required by Statute Law to fence their grounds. When the law requires this of the railroad, an accident due to lack of fences renders the company liable to either passengers or employees injured. Cattle guards used at highways are the equivalent of fences at such points. At private crossings, gates or bars may be necessary. As to the particular places where fences are required, a question of law and fact arises, which may require the services of both court and jury to decide.

Use of Streets. Authority to use streets or highways for railroad tracks is not within the powers of a municipality unless specifically granted in the municipal charter. The authority rests in the State, and is often exercised directly by the State, as it should be; the interest of the larger public is often greater than that of the citizens of a municipality.

The municipality usually has the right to regulate the use of the railroad in many ways, for instance as to speed, as to conforming to grades or changes of grade in the streets, and in other ways. It must, however, exercise this right in a way not oppressive or unreasonable.

Whether the use of streets or highways by a commercial railroad constitutes a new use, and an additional burden for which abutters are entitled to compensation seems not to be fully settled. The courts differ as to conditions which make it so.

Use by Street Railways. With street railways also the right to occupy streets must come by legislative sanction from the State. It is customary, however, to delegate to the municipality the right to grant locations in various streets and to regulate the occupation as well as many matters of construction, operation, and maintenance, among these to prescribe the motive power. There is some question whether the legislature may grant a monopoly in the use of streets. In some cases, the consent of abutters or a specified proportion of the abutters is necessary to justify a location. A requirement has been made in some States that the franchise shall be sold to the most favorable bidder.

The use of the highways by street railways is generally held not to be an additional burden; so also with subways for rapid transit. On the other hand, elevated railways have been required to pay damages in some cities, but the elements of unsightliness and noise have been the controlling

factors and the damages sustained have been shown in the decrease in rentals.

Interurban Railroads. Interurban railroads partake of the character both of commercial railroads and of street railways. They often have their own right of way for considerable distances outside the cities although necessarily using the city streets. They frequently carry express or freight as well as passengers. Are they subject to the laws of railroads or, to the contrary, of street railways? In cities they ought to be subject to regulations governing street railways. Away from cities they are more like commercial railroads, and should properly be subject to substantially the same sort of control. The use of a country road by an interurban railroad probably constitutes an additional burden on the abutters.

Highway Crossings. The crossing of highways by a railroad or an interurban railway presents elements of danger in operation. Signs, gates, bells, and whistles are all used as warnings to users of the highways, and municipal or State regulations often require a street railway car to come to a full stop before crossings. Care is required of all users of a crossing at grade, and in case of accident, an attempt will be made to find the party guilty of negligence, and this will be determined at the trial. The violation of a city ordinance by either party may establish or place the negligence. What is negligence may often depend upon the surroundings and conditions.

COMMON CARRIERS

Definition. When the railroad is constructed and operation begins, it becomes ordinarily a common carrier and subject to the laws governing common carriers.

All persons or corporations who undertake for hire or reward to transport from one place to another either passengers or goods for others who choose to employ them are common carriers.

Law of Common Carriers. Every common carrier is bound to convey for every one who offers to pay his lawful charges, either passengers or any goods of a description which he is in the habit of conveying, unless his conveyance is full or, for other reasons, he be unable to convey them. Most railroads convey not only passengers, but also mail, express, and freight of nearly all kinds, some dangerous or perishable commodities being sometimes excepted. Some railroads, like the Boston, Revere Beach & Lynn Railroad, carry passengers only; there are probably others which carry freight only, but for any who offer; in either case they are common carriers.

Private Railroads. There are others, among them lumber roads of an entirely private character, which serve only their owners and are not common carriers. In these the public have no rights, and such railroads

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