UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY LEGAL HISTORY OF THE ENTIRE SYSTEM OF Nashville, Chattanooga & St. Louis Ry. ,x \ i > Including and discussing the Charters, Amendments, Rights, Privileges, and Franchises of main stem and branches; By-laws, Mortgages, Abstract of Title to every branch acquired, showing width of right of way, distance built, deeds or leases to, and mortgages on same ; laws and decisions relat- ing to right of way, internal organiza- tion, meetings, etc., as well as GENERAL POWERS IN Alabama, Georgia, Kentucky and Tennessee. BY jr. r>. B. r>eBow, Of the Nashville Bar. PRESS OF MARSHALL & BRUCE Co., LAW PUBLISHERS, NASHVILLE, TENN. oo 43, 3, q NJ* $ DEDICATION IN the preparation of this lego-historic treatise on the Nash- ville, Chattanooga & St. Louis Railway and possessions, one could not but be impressed with the magnitude of its present proportions, and the stupendous labors and financiering that must have been expended in its development. From a mere connecting link between Nashville & Chattanooga, it has grad- ually spread out and expanded until now it forms one of the important railway systems of the South. The old land- marks along its right of way are fast disappearing; the primi- tive wood engine has given place to the modern leviathan of the rail; the hills and angles of infancy have been toned down to conform to scientific grades and curves; the crude day coaches of the past have been supplanted by moving palaces for com- merce and transportation. To no one man or set of men can be attributed all this. Board after board of directors have performed their duty nobly and passed into the silent beyond. Presidents, general counsel, general managers, civil engineers, treasurers, and hosts of employes have all labored conscien- tiously and well to bring about this success. In the archives of the company may be found volumes in their praise. With- out, therefore, intending invidious comparisons, but with a full consciousness and sincere appreciation of all such able services, it is yet my pleasant privilege to dedicate this work to him who, in my humble opinion, and after a careful and exhaustive re- view of the expansion and development of the road, is most entitled to be remembered as having shaped, controlled, and wrought its present destiny. Actuated by these motives, as well as by sincere personal esteem and regard, this volume is respectfully dedicated to the president of the company J. W. Thomas. A history of the road is almost a history of his life's work. J. D. B. DEBow. PREFACE. The Nashville, Chattanooga & St. Louis Kailway was origi- nally chartered by the acts of the General Assembly of the State of Tennessee, 1845-6, chapter 1, for the purpose of con- structing a railroad from Nashville to Chattanooga, a distance of 151 miles. After its completion and in exemplification of the theory of the "survival of the fittest," it has gradually spread out by absorption and expansion until now it comprises a system of 1,188.75 miles of main track and 255.62 miles of sidings, distributed as follows: In Tennessee, 875.02 miles main track and 212.88 miles of siding; in Alabama, 114.15 miles main track and 19.29 miles of siding; in Georgia, 142.25 miles main track and 13.07 miles of siding; in Kentucky, 57.33 miles main track and 10.38 miles of siding, making a grand total of 1,444.37 miles of main and side tracks now being operated. It is a fact worthy of comment that of the 2,998.22 miles of railroad in the state of Tennessee, operated by forty-eight different companies, the mileage of the Nashville, Chattanooga & St. Louis Railway more than doubles that of any other company and amounts to nearly one-third -of their combined mileage. The present work was undertaken with a view .of furnishing a complete legal history of this entire system; a full und accu- rate abstract of title to every branch acquired, whether by lease, construction or purchase, showing width of right of way, when and how acquired, legality thereof, distance built, to- gether with the deeds or leases to and mortgages on the same; the laws, both legislative and judicial, relating to its right of way, internal organization, and corporate powers; the charters, amendments, by-laws, general powers, rights, privileges, and franchises of the main stem and branches in the various states through which the road or any part thereof runs, as well as (5) VI PREFACE. the supreme court decisions of all the states and of the United States construing them or similar ones. The magnitude of the undertaking may better be appreciated when it is understood that it derives those powers, rights, priv- ile^-os, and franchises from four different states, and from ^ twenty-nine different charters, to say nothing of numerous amendments and enabling acts, the mere compilation of which was by no means a small proportion of the labors of the work. By far the greater number were granted by special enactments, extending over a period from 18,45 in Tennessee, 1844 in Ala- bama, 1836 in Georgia, and 1851 in Kentucky, to the present time. The dates mentioned being those of the incorporation by the respective states of the oldest companies whose railroads, franchises, etc., have subsequently been acquired by the Nash- ville, Chattanooga & St. Louis Railway. The collection of all this was rendered more difficult by virtue of the fact that prior to the constitution of 1870 in Tennessee, and until compara- tively a recent date in the other states, the caption of the acts gave no indication of their contents, thus necessitating the read- ing, word by word, of the entire legislative enactments of each successive general assembb r of the respective states between the dates mentioned. This has been carefully and conscientiously done, for upon it the value of the work depends. Only a small part of the present mileage of the company is operated under, the franchises acquired by the original charter and amendments of the Nashville, Chattanooga & St. Louis Railway proper. In fact, only that part between Nashville and Chattanooga. The balance, which amounts to nearly nine-tenths of the mileage, is oj>erated under the rights, privileges, and franchises granted by the respective states to the original twenty-six or seven com- panies whose roads, franchises, etc, have since been acquired by lease or purchase. The importance of carefully compiling their charters, amendments, and enabling acts, therefore, is as great as compiling those of the dominant company, for, in ascertaining the powers, rights, privileges, and franchises of the Nashville, Chattanooga & St. Louis Railway over the line of those roads, regard must always be had to their charters, amendments, and PREFACE. VII enablings acts, as well as the laws of the respective states affecting them. In other words, as to the lines of the roads so purchased or leased, the Nashville, Chattanooga & St. Louis Railway would be vested with all the powers, rights, privileges, and franchises, and subject to all the duties and liabilities, ex- cept as otherwise provided by statute, as the original company or companies had. To illustrate: If a company whose road, franchises, etc. , were purchased, had the power to sell or lease, then the Nashville, Chattanooga & St. Louis Railway, as the legal purchaser thereof, would also have those powers over the line of that particular road, as fully and completely as the origi- nal company had. All of this is more fully explained in suc- ceeding pages. The work embraces all acts of the legislatures of the states of Tennessee, Alabama, Georgia, and Kentucky, bearing on the subjects treated, up to and including those of Tennessee, 1899; those of Alabama, 1898-99; those of Georgia, 1898, and those of Kentucky, 1897, which are the latest acts of the respective states. It also embraces all similar supreme court decisions of the same states up to and including 101 Tenn. ; 117 Ala.; 104 Ga., and 99 Ky., as well as similar decisions of the supreme court of the United States up to and including 170 U. S. The work is the result of years of labor and thought, and though it can hardly be expected that it will be perfectly free from errors, yet it is hopefully as well as trustfully launched upon its mission with the consciousness that the best efforts of the author were expended in order to render it so. LIST OF STATIONS ON THE NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWA Y, BY DIVISIONS, SHOWING DISTANCE OF EACH, RESPECTIVELY, FROM NASHVILLE, TENN. OHATTANUUUA Motion*. U1V1S1UH Miletf . . . .Ti'iin. roin 151 149 147 145 141 137 134 130 129 125 123 117 112 106 102 96 87 HUKTHWEBTEKH DI1 Continued. Stations. N. & T. Junction Dickson Pond roun MwAVi Tenn. "om 42 44 60 67 60 62 66 67 73 76 77 80 86 90 92 94 96 101 105 112 117 125 132 138 141 144 147 151 164 Hill 161 168 B. 3 42 47 49 50 62 58 69 61 62 64 67 69 70 78 76 78 86 88 96 98 102 104 106 59 60 WESTERN ft ATLANTIC DIVISION. 352? Chattanooga Tenn. 151 Boyce " 156 King's Bridge 1IUT Cravens Lookout Wauhatchie - Hooker Ga. Etna Mines Tenn. Whiteside Vulcan ' Ladds Shellmound Carpenter Ala. Bridgeport ' Bolivar Stevenson Bass Anderson Tenn. Sherwood " T. C. Junction " Cowan ' De<*herd ' Tennessee City McEwen Briggs Gorman Hopkins Switch Waverly Pranks Box Johnsonville Eva Cainden .. Lipe Sawyer's Mill H. R. Junction Hollow Rock Rosser Chickatnauga Graysville Ringgold CatooM Tunnel Hill Rocky Face Dalton Tilton Resaca Calhoun M (-Daniels .... Adalrsville. ... Halls Cement Kingston Gains Mill iee Ga. 168 174 176 188 185 189 198 206 211 214 220 225 229 230 Estill Springs Tullahoma Normandy Cortner Haley Wartrace Belle Buckle Fosterville Christiana Ruc.ker Winsted M urf reesboro Russell Florence Wade ... . - ; 77 69 62 61 58 55 51 45 42 38 36 32 28 26 22 20 16 14 12 10 8 6 5 65 Hico " McKenzie " Gleason " Dresden " Ralston " Martin " Terrell " Paducah Junction " UnionCity " Woodland Mills " State Line Ky. Hickinan " WEST NASHVILLE BRANC West Nashville Tenn. Bests Rogers Carte rsville Emerson Bartow Etowah Iron Co Allatoona Ruby Acworth Kennesaw Elizabeth Marietta Smyrna Mclvors Smyrna Lavergne Kimhro :::: - Gilmore Iceville 279 Mt. View Antioch Asylum (Jurrv CENTREVILLE BRANCH. Dickson Tenn. Bolton Cleburne Hills Park Atlanta 282 289 Glencliff Nashville SHELBYVILLE Wartrace Cald well's BRANCH. Tenn. Tldwell Iron Hill ? ROME BRANCH. Ga 230 ... " 233 Lyle 234 Cantrell Eves " 237 239 Shelbyville NORTHWESTERN Nashville DIVI8I01 ... .'!' ii ii 63 I. 1 2 7 9 11 12 16 20 24 25 30 87 39 Brown Dykes " 241 " 242 \uiitielly Orion MB Goodrich Home 040 Grinders MEMPHIS ft PADUCAH DIVISION. Paducah Kv 189 Stock Yards Centreville ii >i Deuns...> Buffalo . Hicks 1 Ktna N.. N. A M. V. Oaks Crossing " 181 " ITS Bellcvue Newsom ...... > ( )verby 170 Pgram " Shubert. Klva ' 168 Kingston Springs .. Craggin Hope .... " Mil likens 166 Riverside lola 164 White Bluff > Alton's Creek 160 M Lyle Glade 156 I'olesburg... V Warner . . . Himlin .. 152 Hut continued on other side of Map. MAP, SHOWING MAIN LINE AND BRANCHES OF N., C. -^rw > T"*lTMJiliilii x " Bunavfnavrf j. i^S^gBFfy '^i'^^WJer ^^^^?^r- A'ofeJifSrsS ^ro^raE?: -^^i\S^^- \ ^r ys; ;4. WJL OtrroUtn .sr^-^si-^ -|^ *^> ^C^t*-. X ^W? ^3fe> ^^^^^s^^ , A ^la^*^/^^ u sir *'-. Vn_^? l $? m * A ****l o" O rt*2rO** qCMlta" *\ /BOVKUHO BRCCN Oubtmbla g^HOPK.H.V^^LX/^"'-' 4 - "^ oST?T *i* oEikt A_--^S^^ w<>(Xllm ;a_ k waT ^* *5^ k Cidlx Jlewtte^^ _Howir '"Cl-nKSVIL -LcwUburz .HOPKINS V\ Aubu ^ EDrt " *V-.-^7> kS Jl'" >0aWtt oftl "^TlSSJiiKi r'/ftttkjto/ Beo1 -HL,v\Ad^,in.J _*/i 1 ^!j e ' - . ' ' =i"T5a=isa- . 7VJ=s m'l Vanteu ^J3jH B> AqrSpB>A^ M w^ E -J^Vl K A4iM FounUiiil Sh^^G ML fc H Bc^Stir "b ;H- C 1)Utalfn0 ^,OT s "& 'NkholKJ Spw. ooj (I) Mileage in Tennessee: Main truck 875.02miles. C.') Mileage In Alabama: Main track 114.15 miles. (3) Mileage in Georgia: Main track 142.25 miles. (4) Mileage in Kentucky: Mnin track 57.33 miles. Side tracks 212.88 miles Side tracks 19.29 miles Side tracks 13.07 miles Sidetracks... 10.38 miles Total miles main track 1188.75 miles. Total miles sidincs 255.62 miles Total miles main and side tracks in entire system 1444.37 rhere are about 48 railroad coin panics in the State of Tennessee. Thn total mileage of these companies in Tennessee amounts to 2998.22 miles. Of this mileage, that of the N.. C. t St. L. Rv. more than doubles that of any other railroad in the State and amounts to nearly one-third of their com'bined mileage. ST. L. RY, tllko J*. -iTail-o WluU CUJljf LIST OF BRANCHES IN ORDER OF THEIR ACQUISITION. Nashville & Chattanooga R. R. [Main Branch.] Chartered, 1846; extended from Niislivillc i<> Chattanooga, 151 mile*. Se p. 1, herein. Shelbyvillc Branch. Built by N. 0. A St. L. Ry; oompleUd about 1852; extended from \\artrace to Shelbyville, 8-1 miles. See p. 2MJ. herein. Jasper Branch.- U'art of Sequalchie Valley Br.l Built by N. C. 4 St I. Ry; completed. Octolter, 1867; extended from Bridgeport to Jasper. 12 iiiili-s. See p. 264. herein. Nashville* Northwestern R. R. (Northwestern Br.l Purchased. November 21. IKT'J; chartered, 1HT>1-L': extended from Nashville to Hickman. Ky.. 168 miles, after it purchased Hi<-Uintui .V ()l>iun Ry. See p. 711, herein. Hickman & Obion R. R. [Kxtenslon of Northwestern Br.l Purchased. November -'I. IKT2, ut same time Nashville A Northwestern was purchased. it being a part of It- extended from Union City nmn, K\ .. 14 miles. See p. 104, herein. Pikeville Branch. [Hurt of Beq natch ie Valley Urnnch.1 Purchaaed. Janu- :ir\ 27. 1K77: Ctniriered, 1868 0; extended from Jasper to Plkeville. 4ft miles. See p. 26, here'n. Winchester & Alabama R. R. I Part of Hayettevllle Br ] Purchased. July 2H. 1H77; chart.-r.-d. 1840-50; extended from Itecherd to Kayetteville. 40 miles, and subsequently from Klora to Tennessee State line, about 5 miles. See p. 152, herein. McMinnville & Manchester R. R.-[Part of McMinnville Br] Purchased. .lulv 2*. 1877; chartered. 184H 50; extended from Tullahoma to Mc- Minnville. 35 miles. See p. 168. herein. Tennessee & Pacific R. R. [Lebanon Br.] Purchased, October 1, 1877; chartered. 1865-6; extended from Nashville to Lebanon, 29.81 miles. See p. 129, herein. Southwestern R. R. Part of McMinnville Br.] Purchased, - ; chartered, 1851-2: extended from McMinnville to Sparta, when com- pleted by N. C. * St. L. Ry., 26 miles. See p. 102, herein. Inman Branch. | I'urt of Sequatchie Valley Br] Purchased, January 1. 1883: built by Tenn. Coal, Iron & R. R. Co., under its charter; ex- tended from Victoria to Inman, 5 miles. See p. 269, herein. Nashville & Tuscatoosa R. R. [Part of Centerville Br.] Purchased in sec- tions, on March 13, 1883, and June 20, 1884; chartered, 1877; extended from Dickgon through Centervllle to Lewis county line, or Klmtnins, 46 miles. See. p. 227, herein; also, "Allen's Creek Extension," below. Tracy City Branch. [Sewanee Br.l Purchased. Jan 1, 1887; built by Se- wanee Mining Co., under its charter; extended from Cowan to Tracy City. 20 miles. See p. 277, herein. West Nashville Branch. Purchased, July 6, 1887; chartered, 1887; extended from Nashville to town of West Nashville, 3 miles. Seep. 318, herein. Huntsville & Elora R. R. [Or Branch.] Purchased. October 28, 1887; char- tered. 1886-7; extended from Huntsville, Ala., to Tennessee State line, 22 miles. See p. 214, herein. Duck River Valley Narrow Gauie R. R. [Columbia Br.] Purchased. No- vember^. 1887; chartered^ 1872. extended from Columbia to Fayelte- ville. 48 miles. See p. 250. herein. Bon Air R. R. [Extension of McMinnville Hr.| Purchased, December 3, 1887; chartered, 1887; extended from Sparta to Bon Air, 7.98 miles. See p. 199, herein. Western & Atlantic R. R. [Or Branch.] Leased, July 19, 1890; owned by Stute of Georgia; extended from Chattanooga, Tenn., to Atlanta, <;.i.. 138 miles. See p. 335. herein. Tennessee & Coosa R. R. [Gadsden Br. ] Purchased. April 6, 1891; char- tcred. 1M4-I ft: extended, when completed by N. C. ". In-fore thc\ \v-n- leased to the X. C. A St I. U> S.-,- j, -1ST. herein. (Co STAT IONS- List of and Respective Distances In Miles from Nashville. Tenn. See i,sck of map. LIST OF STATIONS Continued, MEMPHIS ft FADUCAH DI- VISION Continued . **-. SBfizr Dexter Kv Ifin BEHUATUHIE VALLEY DI- VISION Continued. iint inns MUesfrom Nashville. South Pitsburg - Tn 120 COLUMBIA I Stations. UVIBION. Miles from Nashville. Tenn 82 " 147 Kimball isi Winchester " 86 " 142 " 135 Kasserman Hazel State Line 133 Sequatchie...... " 138 Belvidere " 90 Tenn. 129 " 142 Maxwell " 94 Whitlock ' 123 Whitwell " 146 Bean's Creek " 96 Paris H7 Shirley ton " 149 Huntland . " 98 VauDyke ' 110 Condra " 152 Elora " 103 Mansfield .... ' 108 Daus ' ]56 Pliutville " 108 Vale ' 100 Dunlap .. ' 161 Brighton . " 110 ' 95 Mt Airy 166 Kelso " 114 Hollow Rock 96 Pailo ' 168 Fayetteville " 122 Buena Vista 101 College ..... ' 172 It o well " 129 West Port ' 107 Lee ' 175 Petersburg ... " 135 Yuma ' 111 Pikeville ' 180 Talley ' 138 Wildersville 116 Victoria 142 Kelfast ' 144 Timberlake ... . 121 Hutton 146 Lewisburg ' 150 Wards I n man 147 South Berlin 155 ... ' 127 TRACY CITY BRANCH. Silver Creek ' 157 Kryant 158 Foster i Park " 160 ' 136 m ri T '.'.""" * iciiu. oi Hill " 1ration, and necessary and proper to the transaction * wers - of the business for which it is incorporated, and to have and use a common seal, and the same to alter and destroy at its pleasure, and shall have perpetual succession of members. 1. *Name, when and how changed. The corporate naine was changed to the Nashville, Chattanooga & St. Louis Railway May 30, 1873, by a decree of the chancery court at Nashville, under the Acts of 1870-1, Ch. 54, p. 63 (see minute book "X," pp. 220-2), which decree is inserted in this compilation. See next chapter. This was clearly within the power of the chancery court at that time under said acts. 1 Tenn. Chy. Rep., pp. 83, 95, 97; 3 Bax., 98. See, also, 1 2 ORIGINAL CHARTER OF THE 12 Lea, 97, 103; 11 Lea, 3; 9 Lea, 380; 1 Lea, 462. The power, however, has since been withdrawn. 2. By-laws. An amendment to the charter was subsequently passed allowing the directors, and not the stockholders, to make by-laws. Acts Tenn. 1847-8, Ch. 70. 3. f General powers. The general powers of the corporation have been greatly enlarged by amendments to the charter and the passage of g-eneral laws. These powers are fully set out and discussed further on. Hy referring to the index a discussion of any particular power now pos- sessed may be found. 4. Incorporation, This railway has never been chartered in any state save Tennessee. It has purchased and now owns roads, however, that were chartered in other states. See index for road desired. 5. Lease. This section was amended by Acts Tenn.. 1857-8, Ch. 8, so as to authorize the company to lease the Winchester & Alabama Railroad and the branch to Fayetteville, or nn\i other railroad connecting with said Nashville & Chattanooga Railroad, for such time and upon such terms and conditions as may be agreed upon between the president and directors of the said Nashville & Chattanooga Railroad Company and the presi- dent and directors of the railroad company contracted with. See index for right to lease. 5. Chancery Court amendment. This section was also amended by decree of chancery court at Nashville. May 13. 1872, per minute book "V," p. 174. so as to allow the company to purchase or lease other roads, and issue bonds therefor; to subscribe for stock in other corporations and issue bonds therefor; and to indorse and guarantee bonds of other companies, etc. See decree itself herein; refer to index. See also dis- cussion of vnlUUty of chancery court amendments herein; refer to index. SEC. 2. Capital, value of shares, books opened, commis- sioners. Books for subscription of sixty thousand shares of the capital stock of said company, of twenty-five dollars each,* shall be opened on the first Monday in January, 1846, and shall be kept open for six days, between the hours of 10 o'clock Books opened m * ne mormn g an d ^ o'clock in the evening of each of those days, at the following places and by the fol- lowing commissioners, to wit: At Nashville, by James Overton, John M. Hill, George W. Martin, Thomas Washington, John Shelby, Godfrey M. Fogg, Commis- John W. Walker, Jacob McGavock, J. Hugh Smith, W. W. W r oodfolk, A. W. Vanleer, Samuel W T atkins, Thomas Wells, John Thompson, Joseph B. Knowles, James Erwin, Felix R. Rains, Pleasant Smith, J. J. Gill, John Nichol, West H. Humphreys, R. J. Meigs, A. V. S. Lindsley, Alex- ander Allison, and Robert I. Moore. At Gallatin, by James A. Blakmore, Elijah Boddie, Henry B. Vaughn, Daniel S. Donelson, S. R. Anderson, and William M. Blakemore. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. At Shelbyville, by Robert Matthews, George Davidson, Thomas Dean, John Eakin, and W. C. Swanson. At Gainsborough, by Thomas L. Bransford, Watson M. Cooke, Samuel E. Hare, and Richard P. Brooks. At Lebanon, by Paulding Anderson, R. L. Caruthers, and Calvin Jackson. At McMinnville, by George R. Smartt, William Black, Jesse Locke, Philip Hoodenpyl, and L. 1). Mercer. At Franklin, by Thomas Parks, William Park, Nicholas Per- kins, Samuel Crockett, and Robert C. Foster. At Murfreesboro, by Charles Ready, Edwin A. Keeble, Harman Spence, Lewis Garner, and L. H. Carney. At Sparta, by James Snodgrass, John Warren, and W r illiam M. Young. At Fayetteville, by John Clark, Jr., John M. Bright, Robert Farguharson, William T. Ross, James Fulton, and William Bonner. At Pulaski, by Andrew M. Ballentine, Thomas Martin, and Benjamin Carter. At Winchester, by Benjamin Dechard, Mark Hutchins, James Harris, James Sharp, Thomas Wilson, and C. C. Garner. At Chattanooga, by Robert M. Hook, Benjamin Chandler, and John P. Long. At Jasper, by Jackson Pryor, Daniel R. Ruwlings, and John Harriford. At Lewisburg, by Benj. Williams, Ephraim Hunter, James V. Ewing, Morgan Fit/patrick, and Henry Harding. 1. * Value of shares changed. The value of a share of stock was originally 825. Hy Acts 1889, ch. 102, all corporations ' hereafter created or hereafter to be created " under the laws of the State of Tennessee, were allowed to make a share of stock 8100 or less, and issue certificate there* for. Secondly, that any such corporation which has heretofore issued shares of stock for 825, may call in the same and combine four such shares and issue a certificate for $100 in lieu thereof. Under this act the Nashville, Chattanooga fe St. Louis Railway issued new certificates for 8100 each, as provided above, in place of the original, as per resolution adopted May 30, 1889. The above clause, ' hereafter created or hereafter to be created,' 1 evi- dently was intended for " heretofore created or hereafter to be created." The act has been compared with the enrolled copy in the secretary of state's office, and found to contain the same mistake. 4: ORIGINAL CHARTER OF THE 2. Capital increased, how. See ? 17 of this charter; see, also, index. The capital stock was increased to $10,000,000 at the annual meeting of stockholders, June 30, 1891. SEC. 3. Subscriptions to StOCk, payment. The said com- missioners, or a majority of them, at each of the places afore- said, shall receive subscription for stock in the said railroad company during the time the said books are directed to be kept open, and on each share so subscribed shall demand and receive the sum of fifty cents, without which the subscription shall be void. The original capital stock of the Nashville & Chattanooga Railroad Company was subscribed as follows: By the city of Nashville $ 500,000 00 By the city of Charleston, S. C 500,000 00 By the Georgia Railroad... ._ 250,000 00 By the town of Murfreesboro 30,000 00 By individuals. 806,912 50 Total $2,086,912 50 SEC. 4. Deposit of money, commissioners, incorporation perfected, When. As soon as the time for receiving subscrip- tions as aforesaid shall have expired, the said commissioners shall, respectively, deposit all the money so received by them in some incorporated bank, redeeming its notes in specie, to the credit of the Nashville & Chattanooga Railroad Company, and subject to the order of the president of the board of commis- sioners hereinafter appointed, and shall also forward a correct list of all the subscribers to the said stock, with the number of shares each subscriber has taken, to a board of commissioners, to be composed of the following persons: Jno. M. Bass, Jno. commission- M - Hill > Francis B. Fogg, Andrew Ewing, A. O. P. ers - Nicholson, V. K. Stevenson, Jno. Bell, Willoughby Williams, William Nichol, S. D. Morgan, Jos. T. Elliston, Jos. W. Horton, Jas. A. Porter, Jas. Overton, and Jno. Shelby, who may establish rules to govern their proceedings, choose their own president, and appoint such other officers and agents as they may think proper, and prescribe their duties, and who, TO meet at or a ma j r ity of whom, shall meet at Nashville on hashvme. tne third Monday in January next, ascertain the whole number of shares taken in the said company, and publish NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 5 the same in some newspaper printed in Nashville, on or l>efore the fourth Monday in January next; and, if the number of four thousand shares shall have been subscribed, on each of which there shall have been paid the sum of fifty cents, the Nashville & Chattanooga Railroad Company shall be regarded at formed, and thenceforth and from the day of the closing of the l>ooks of subscription, as aforesaid, the said subscribers to the stock shall form a body politic and corporate indeed and incorpora- in law, by the name and for the purpose aforesaid, ed when, and in all things to be represented by the hoard of commission- ers aforesaid, until the election of a board of directors, as here- inafter prescribed. First board. The first board of directors were elected January 24, 1848. Previous to that time the corporation had been managed by the board of commissioners. SEC. 5. Books kept open when, incorporation, commis- sioners. If on closing the books aforesaid the number of four thousand shares shall not have been subscribed, then and in that case the said board of commissioners, by themselves or their agents, may receive subscriptions till the number of four thousand shares be taken, and whenever that number of shares shall be subscribed, the company shall be considered as formed, as having a corporate existence, as aforesaid, and of which notice shall be given, as hereinbefore directed, and may proceed to survey the route for the road, and make an estimate of the cost of its construction. Nevertheless, no conclusive and binding location of the road shall l>e power of made by the board of commissioners, but the same sioners. be left to the determination of the first hoard of directors chosen by the stockholders. And the said board of commissioners m ay> by themselves or their agents, at such time and places as they may think proper, and upon such terms as to time and manner of payment as they may deem expedient, receive addi- tional subscriptions until the number of forty thousand shares shall have been subscribed, upon which the company may be formed, and the subscribers shull thenceforth form a body cor- porate, as aforesaid; Provided, The same shall be done on or before the first day of January, 1848; and for the residue of 6 ORIGINAL CHARTER OF THE the original numl>er of sixty thousand shares the said corpora- tion, when organized, may in like manner receive additional subscriptions. SEC. 6. Reduction Of Shares. In case more than sixty thou- sand shares shall have been subscribed on closing the books when they are first opened, the shares shall be reduced to that number by deducting the surplus shares from the highest sub- scribers, placing them on an equality of numbers, as far as can be done; and, after such reduction, the holders of the re- maining shares shall form the company, and be interested therein in proportion to the number of shares which they may then respectively hold. SEC. 7. Money returned if shares not subscribed. if, on closing the books on the first day of January, 1848, the num- ber of forty thousand shares shall not have been subscribed, the money paid by each subscriber shall be returned to him by the said board of commissioners, after defraying the expenses of opening the books and making a survey and map of the route, and estimate - of the cost of the road, which the said commission- ers are hereby authorized to have made as soon as practicable. SEC. 8. President and directors, how chosen. The affairs of said company shall be managed by a board of directors, to consist of fifteen, who shall be chosen by the stockholders from their own body, and a president of the company shall be elected by the directors from among their own members, in such man- ner as the regulations of the corporation shall prescribe. 1. Section amended. This charter was amended by Acts Tenn., 1849- 50, ch. C'CLXVL, so as to allow the city of Charleston, S. C., to appoint two of her citizens to represent her stock in this company as directors. The same act also amended the charter so as to allow the Georgia Rail- road & Hanking 1 Co. to appoint one director to represent its stock. 2. Number of directors. By Acts Tenn., 1868-9, ch. 23, all railroads, by majority vote, were allowed to reduce their directors to a number not less than six. and such vote became amendment to charter. Again, by Acts 1859-60. ch. 202, authority was given to reduce the number to nine, where State aid granted and company agreed. Again, by Acts Tenn., 1881, ch. 119 (Code, M. & V.. 1702), all private corporations were allowed to increase or diminish the number of directors to any number not less than five, upon a vote of the stockholders representing three- fourths of the capital stock. None of these acts have been accepted, however, and the number of directors still remains fifteen. 3. First board of directors. The first board of directors were elected NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 7 January 24, 1848. Previous to that time the affairs of the company were managed by the commissioners. 4. General powers. A general power granted directors to manage the affairs of the incorporation includes the power to borrow money, make, accept, or assign negotiable paper, etc., in the couree of business of the corporation. Thompson on Corp., sees. 3988-9; 9 Heis., 524, 533; 11 Hum.. 22; 7 Heis., 288; 2 Cold., 655; 9 Hum., 264; 6 Hum., 516. 5. For method of electing president and directors, together with their powers, qualifications for office, etc., see index. See also sees. 18, 19 of charter. SEC. 9. Stockholders' first meeting, directors' election, by- laws how enacted. As soon as the number of forty thousand shares shall have been subscribed, it shall be the duty of the commissioners appointed to declare the same, to appoint a time for the stockholders to meet in Nashville, and give Meetln - at notice thereof by publication in some of the news- N * snvl ' le - papers of Nashville, at which time and place the said stock- holders, in person or by proxy, shall proceed to Directors, elect the directors of the company, and to enact all and powers, such regulations, rules, and by-laws as may be necessary for the government of the corporation and the transaction of By laws, how its business. The persons elected directors at this enacted, meeting shall serve for such period, not exceeding one year, as the stockholders may direct; and at this meeting the stockholders shall fix on the day and place or places where the subsequent election of directors shall be held; and such elections shall thenceforth be annually made. But if the day of annual elec- tion should pass without any election of directors, corporation the corporation shall not thereby be dissolved, but by failure of annual dec it shall be lawful on any other day to hold and make tion. such elections in such manner as may be prescribed by a by-law of the corporation. 1. Section amended, by-laws, elections. This section was amended by Acts 1847-48, ch. 70, and accepted by company, so as to confer upon thr illrecttirH, instead of the stockholders, the power to make " rules, reg- ulations, and bj r -laws," and to empower directors to appoint three judges and two clerks, from year to year, for purpose of holding election of directors. 2. By-laws. Though by-laws provide for stated meetings, directors may hold special or informal meetings, and their actions, when recorded, are legal and binding. 9 Heis., 545. 3. Meetings. Directors may hold meeting out of state, and legal. Rorer on R. R., p. 211; Thomp. on Corp., 3933; 45 Ga.. 34; 34 N. Y., 208. 4. Section amended. By Acts of 1857-58, ch. 8, this charter was ORIGINAL CHARTER OF THE amended so that the stockholders could, at any meeting, fix on the day and place where subsequent meetings of stockholders and election of directors shall be held. 5. By-laws. The by-laws, orders, and resolutions adopted by a rail- road company or its stockholders are always under the control of the majority, unless expressly provided otherwise by the charter, and may be repealed, altered, or modified from time to time by the majority. 5 Sneed, 566-568. 6. See Acts 1868-69, ch. 27 ( 1238 M. & V. Code), for f/eneraUaw in ref- erence to election of directors, when proper officers refuse or neglect to call meeting for same, inserted herein. See index. 1. For qualifications, elections, liability, etc., of directors, and pas- sage of by-laws, see index. SEC. 10. Vacancy in board, hOW filled. The board of di- rectors may fill up all vacancies which may occur in it during the period for which their board shall have been elected, and, in the absence of the president may fill his place by electing a president pro tempore. SEC. 11. Contracts and agreements binding without seal. All contracts and agreements authenticated by the president of the board shall be binding on the company without seal, or such other mode of authentication may be used as the company, by their by-laws, may adopt. Deeds to real estate, however, were required at common law to be under seal, and neither the above section, nor \ 2478 of the Code (M. & V.), change this law as to such conveyances. In all such cases the seal must be attached to make it legal. 10 Pick. (Tenn. ), 460. For discussion of what contracts can be made by company, how cor- porate name to be signed, acknowledgements, etc., see index. SEC. 12. Liability Of directors. The board of directors shall not exceed, in their contracts, the amount of the capital of the corporation, and of the funds which the company may have borrowed and placed at the disposal of the board; and in case they should do so, the president and directors who may be present at the meeting at which such contract or contracts so exceeding the amount aforesaid shall be made, shall be jointly and severally liable for the excess, both to the contractor or contractors and the corporation; .Provided, That anyone may discharge himself from such liability by voting against such contract or contracts, and causing such vote to be recorded on the minutes of the board, and giving notice thereof to the next general meeting of the stockholders. Liability of directors. The directors are individually liable for such specific debts only as were contracted with their assent in excess of the NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 9 paid-up capital and remain unpaid after the corporate asset* are ex- h;iiiM.-sited in the office of the secretary of state, it shall not be lawful for any other railroad to he built, cut, or constructed, in any way or manner, or by any authority whatever, running laterally within twenty miles of the route so adopted, unless by said company, or with the consent of the board of directors thereof for the time being. This section has never been construed by the supreme court of Ten- nessee, but the supreme courts of other states, as well as the United States, have decided similar sections in other charters valid. They hold that such a grant, when accepted by the corporation, is in the nature of a contract which cannot be impaired without compensation to the rail- road company. 17 Conn., 40; 42 Am. Dec., 716; 1 Wall. (U. S.), 116; 3 Wall. (U. S.), 51; 73 Iowa, 513; 25 Wend. (N. Y.). 628; 47 Me.. 189, 208; 115 U. S.. 650, 683; 7 N. H., 35; 55 Conn., 1; 120 U. S., 64; 14 Fed. Rep., 194; 22 Cal., 398; 5 How. (Miss.), 503; 11 La. Ann., 253: 13 How., 71. For discussion of this, see Charter, subhead "What Franchises Protected as Contracts." Refer to index. 9 Ga., 362; 86 Ga., 83; 70 Ga., 594. SEC. u. Exclusive transportation, rate of charges. The said company shall have the exclusive right of transportation or conveyance of persons, goods, merchandise, and produce over the said railroad by them to be constructed; Provided, That the charge of transportation or conveyance shall not exceed thirty-five cents per one hundred pounds on heavy Rmte of articles, and ten cents per cubic foot on articles of char *- measurement, for every hundred miles, and five cents a mile for every passenger; And provided at#<>, That the said com- pany may, when they see fit, farm out their rights of transpor- tation on said road, subject to the rates above mentioned. 1. Rate of charge. This section simply gives the right to charge for freight and passengers. The intent was not to proportion the charges by any unit of distance, but to fix a maximum beyond which the com- pany could not go. and to leave the tariff of charges, within that limit, 10 ORIGINAL CHARTER OF THE to the company, subject to the rule of the common law that charges should be reasonable, and to the regulating power of the courts and of the legislature. 9 Lee, 609. See, also, 134 U. S.,418. 70 Ga., 694. 2. This section would only be operative to and from points wholly within the State of Tennessee. Shipments to and from points without the state would be controlled by the interstate commerce law. 116 U. S., 307 [29: 636]. 3. In shipments from Nashville to Chattanooga, the mere fact that the road runs into Georgia and Alabama would not take it out of this section, for. ' in the carriage of freight between two points in one state, the mere passage over the soil of another does not render that business foreign which is otherwise domestic." 145 U. S., p. 192 (672). See notes to sees. 34 and 40. See, also, 108 U. S., 538 (27: 812-818). 4. Exclusive transportation. A part of this section seems at first blush to convey a franchise exempt from eminent domain, as it purports to convey the exclusive right of transportation over the road. Whether the legislature intended to do so or not, however, is immaterial, as the grant of such a right would be unconstitutional. The state cannot bar- gain away its sovereign power, and any act attempting to divest it of the power would be void, even though incorporated in the charter of the road. Vol. XIV. Am. & Eng. Corp. Cas., pp. 417, 30; 18 Conn., 451; 102 Pa. St., 123; 48 Mich., 433; 53 Ala., 211; 65 Ga., 160; 7 N. H., 35; Lewis on Em. Dom., sec. 275. See 50 Ga.. 204; 70 Ga., 694. SEC. 15. Installments, SUitS for. The board of directors may call for the payment of twenty-four and a half dollars on each share of stock, in sums not exceeding two dollars, in every thirty days; Provided^ That twenty days' notice be given of such call in at least one public newspaper of the state in which any of the stockholders may reside; and a fail tire to pay, or secure to be paid, according to the rules of the company, any of the installments so called as aforesaid, shall induce a forfeiture of the share or shares on which default shall be so made, and all payments thereon, and the same shall vest in and belong to the company, and may be restored to the owner or owners by the board of directors, if they deem proper, on the payment of all arrears on such shares, and legal interest thereon, or the directors may waive the for- feiture after thirty days' default, and sue the stockholders for the installment due, at their discretion. A corporation has no power to make a by-law to forfeit or sell a mem- ber's stock, unless there be a provision (as in this instance) in the charter or articles of association, authorizing the same. 19 Wend., 37: Rorer on Railroads, p. 163. Such a law would not now be valid, as all subscrip- tions have been settled. SEC. 16. StOCk, hOW transferred. The stock of said com- pany may be transferred in such manner and form as may be directed by the by-laws of the said corporation. NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 11 The by-laws, orders, and resolutions adopted by a railroad company, or its stockholders, are always under the control of the majority, unless expressly provided otherwise by the charter, and may be repealed, al- tered, or modified from time to time by the majority. 5 Sneed, 506-8. For discussion of "how stock to be transferred and liability of company for, see index, SEC. 17. Capital increased, how. The said company may at any time increase its capital to a sum sufficient to complete the said road and stock it with everything necessary to give it full operation and effect, either by opening books for new stock, or by selling such new stock, or by borrowing money on the credit of the company, and on the mortgage of its charter and works; and the manner in which the same shall l>e done in either case shall be prescribed by the stockholders at a general meeting; and any state, or any citizen, corporation, or com- pany, of this or any other state or country, may subscribe for and hold stock in said company, with all the rights and subject to all the liabilities of any other stockholder. 1. Increase of capital. The clause in this section allowing 1 the com- pany to "increase its capital to a sum sufficient to complete its road, and to stock it with everything 1 necessary to give it full operation,'' etc., gives only the limited power to the company to issue bonds and mortgage its property to complete and equip its road, and for no other purpose. Fntzler v. Railrotid Company, 4 Pickle, 138. 2. By the Acts of 1875, ch. 142, sec. 19, all corporations previously chartered by the acts of the general assembly were allowed to increase their capital stock by a method therein set out. 3. This section was amended May 13, 1872, by a decree of the chancery court at Nashville, minute book V, p. 174, sec. 4, so that " two- thirds of the whole number of directors agreeing thereto, may increase the capital stock to.such an amount as may be determined by the board of directors." See decree itself in this compilation, in next chapter. But also see dis- cussion herein of validity of chancery court amendments. 4. For method of increasing capital stock now, see index, 5. Increase of capital. By Acts Tenn., 1857-8, ch. 161, sec. 4. this com- pany was allowed to increase its capital to a sum sufficient, with the state aid, to construct the Jasper branch. 6. The capital stock of this company was increased to 810,000.000 at the annual meeting- of stockholders June 30, 1891. SEC. is. Directors' annual report, may call general meet- ings. The board of directors shall, once in every year at least, make a full report on the state of the company and its affairs to a general meeting of the stockholders, and oftener if directed by a by-law; and shall have power to call a general meeting of the stockholders when the board may deem it expedient. See notes to sec. 9 of this charter. 12 ORIGINAL CHARTER OF THE SEC. 19. Qualification of officers and voters. No person but & citizen of the United States, being a lona fide stockholder in his own right of at least forty shares, which he shall have held at least three months previous to his election (except at the first election), shall be president or a director of the com- pany; nor shall any stockholder vote, in person or by proxy, at any general or other election (except the first), who shall not have held, in his own right, the shares on which he offers to vote at least three months previous to such election. 1. By Acts 1849-50. ch. 266, this section was amended so as to allow the city of Charleston, S. C., to appoint two directors in road to repre- sent her stock, and the Georgia Railroad & Banking Co. to appoint one, but that eight directors should still constitute a quorum. See act itself in next chapter. 2. The city of Charleston subscribed for $500,000 of the stock in this company, as per city ordinance passed April 11, 1848. 3. The Georgia Railroad & Banking Co. subscribed for $250,000, as per resolution of directors passed April 11, 1848. For discussion of qualification of president and directors and right of stockholders to vote for. see index. SEC. 20. Method and scale of voting for directors. Stock- holders may vote in person or by proxy and in the election of directors, and, in voting on all questions which come before a meeting of the stockholders, or which may be submitted to the decision of the stockholders in any other manner, the vote shall scale of ke taken according to the followin scale: The owner voting. O f one or t- wo snares 8 ball be entitled to one vote; the owner of not less than three nor more than four' shares shall be entitled to two votes; the owner of not less than five nor more than six shares shall be entitled to three votes; the owner of not less than seven nor more than eight shares, to four votes; the owner of not less than nine nor more than eleven shares, to five votes; the owner of not less than twelve nor more than fifteen shares, to six votes; the owner of not less than sixteen nor more than twenty shares, to seven votes; the owner of not less than twenty-one nor more than twenty- six shares, to eight votes; the owner of not less than twenty- seven shares nor more than thirty-three, to nine votes; the owner of not less than thirty-four nor more than forty shares, to ten votes; and the owner of every ten shares above forty NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 13 shall be entitled therefor to one vote; Provided, That no indi- vidual, corporation, or company shall be entitled to more than five hundred votes. 1. Amendment as to scale of voting. By Private Acts 1868-9. ch. 2, sec. 4, the charters of all railroads were allowed to be amended so that every stockholder should be entitled to one vote for each share of stock, provided it did not interfere with the vested right of the company. This amendment was accepted by the Nashville, Chattanooga & St. Louis Railway, September 20, 1875, and now in all elections each share is en- titled to one vote. See discussion herein; refer to index. 2. Amendment [chancery court]. This section was amended by decree of the chancery court, at Nashville, May 13, 1872, as per minute book "V," p. 174 el fteq., so that "the owner of one or more shares, up to and including four, should be entitled to one vote for each share: the owner of a greater number of shares than four should be entitled to one vote for each four shares over and above four." This amendment was doubtless void, however. 8 Bax., 332; 1 Tenn. Chy., 95, 98; 11 Lea, 3; 9 Lea, 380; 1 Lea, 462. Subsequently, on September 20, 1875, the company accepted the Acts of 1868-9, ch. 2, as above set out, which now gives one vote for each share. SEC. 21. Real property may be purchased for what The said company may purchase, have, and hold in fee, or for a term of years, any lands, tenements, hereditaments which may be necessary for said road, or appurtenances thereof, or for the erection of depositories, storehouses, houses for the officers, servants, or agents of the company, or for workshops or foundries to be used for the said company, or for procuring timber, stones, or other materials necessary for the construc- tion of the road or its appurtenances, or for effecting transpor- tation thereon. 1. See notes to sec. 24 of this charter. 2. For the purposes enumerated in the above section, the railway can- not condemn, but must rely upon its purctmslng power therein conferred. 11 Hum.. 347. For general discussion of this under Eminent Domain, herein, see index. SEC. 22. Crossing and taking roads, water courses, and turnpikes. The said company shall have the right, when nec- essary, to construct the road, or any branch thereof, across or along any public road or water course; Provided, Public roads and water That the said road and the navigation of such water courses, course shall not be thereby obstructed; And provided further, That such railroad shall not be located so near any Turnpikes . .1 . . . i. ,i . . not to b turnpike road as to injure or prejudice the interests injured. of the stockholders in such turnpike road, except upon such 14 ORIGINAL CHARTER OF THE terms as may be agreed upon by the president and directors of the same on behalf of the stockholders. 1. Bridge across Tennessee river. By Acts Term., 1849-50, ch. 266, sec. 2. the company was required to build the bridge across the Tennes- see river, at least thirty feet above extreme high-water mark between the two piers next to the western bank or any two piers the company may deem best, and the distance between the two so selected shall be at least one hundred and fifty feet. Subsequently, by Acts Tenn., 1855-6, p. 487, as the bridge had burned, the legislature passed an act relieving the company from building the bridge thirty feet above high-water mark, or any other specified height, provided a good draw or revolving bridge be constructed, at least sixty feet between the piers. See act itself in this compilation, in next chapter. Alabama acts as to bridge. The state of Alabama passed, by Acts 1849-50, No. 123. sec. 2, an identical act to the Acts of 1849-50, ch. 266, sec. 2, of Tennessee, above set out, and subsequently, by Acts 1855-6, p. 11, passed an identical act to the Acts of 1855-6, p. 487, of Tennessee, above set out. By Acts of 1888-9, p. 443, Alabama again required the bridge to be built thirty feet above high water, etc., this act being the same as Acts of 1849-50, No. 123, above set out. This act, however, is void as against the vested rights of the railway. The bridge had been erected and the draw put in under the Acts of 1855-6, before the act of 1888-9 was passed. In addition it would be void, as congress now has charge of the matter. Congress acts. By acts of congress 1888, as amended by those of 1890, the character of bridges, etc., over all navigable streams has been taken from the state legislatures. Prior to this time, congress had no jurisdic- tion over the navigable waters within the territorial limits of a state, as there was no common law of the United States independent of statute. Until congress acted, therefore, the matter rested entirely with the leg- islatures of the states. Hence these acts. Since congress has taken charge, however, these acts of the state legislature are of no particular value. The bridge must be constructed according to the acts of congress. As it is now constructed lawfully under the said acts of congress, the last acts of Alabama are void upon the subject. 2. Road crossings. Where railroad crosses public road already in use, it must, unless relieved by statute, not only restore the public road, but erect and maintain perpetually all structures and keep up all re- pairs made necessary by such crossing, for the safety and convenience of the public. 3 Pickle. 712. But this law does not apply where road crosses railroad. See discussion herein. See, also. 14 Lea, 525, which holds this section valid in action by turnpike company to enforce con- tract. 3. Obstructing. The temporary and necessary obstruction of naviga- tion in the construction or repair of a bridge is not unlawful under this section, nor within the prohibition of \ 1527 of the code (M. & V.). 6 Pickle. 638. Hut see 5 Sneed, 427; 1 Bax., 55. 4. The term ' public road," in this charter, does not embrace the streets and alleys of a city. 3 Head, 596. 5. Railroads may be indicted and fined for obstructing a public high- way contrary to powers in their charter. 3 Head, 523. 6. See discussion herein of right to cross bridge and obstruct roads, navigable streams, etc., and right of highways and railways to cross right of way of this company. Refer to index. SEC. 23. Purchase of bridges, roads, etc. The said com- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 15 pany may purchase, have, and hold any bridge or turnpike road over which it may be necessary to carry the said railroad; and when such purchase is made, to hold the said bridge or turn- pike road on the same terms and with all the rights which be- long to the individual, individuals, or corporation from which such purchase may be made; Provided, That the said company shall not obstruct any public road without constructing another as convenient as may be. 1. The term "as convenient as may be " in the above section does not mean that the new road must be as convenient and easy of passage and as safe as the old road, but that the new road should be so constructed as to answer the purposes of the traveling public, and be made as easy and convenient as the nature of the ground will permit, having regard to the rights of the public and not requiring unreasonable outlays of money by company. 1 Bax., 55. 2. A chartered toll bridge, having exclusive right, may be condemned for railroad purposes. 1 Sneed, 176. SEC. 24. Condemnation for right Of way. Where any lands or right of way may be required by the said company for the purpose of constructing their road, and for want of |n m tk s eij for agreement as to the value thereof, or from any other certaiined. as cause the same cannot be purchased from the owner or owners, the same may be taken at a valuation to be made by five com- missioners, or a majority of them, to be appointed by the cir- cuit court of the county where some part of the land or right of way is situated; and the said commissioners, before they act, shall severally take an oath, before some justice By sworn of the peace, faithfully and impartially to discharge rs. the duty assigned them. In making the said valuation, the commissioners shall take into consideration the loss or damage which may occur to the owner or owners in conse- commission quence of the land l>eing taken or the right of way skier what, surrendered, and also the benefit and advantage he, she, or they may receive from the erection or establishment of the railroad or works, and shall state particularly the nature and amount of each, and the excess of loss and damage over and above the benefit and advantage shall form the measure of valuation of the said land or right of way. The proceedings of the said commissioners, accompanied with a full description of the said land or right of way, shall l>e returned under the hands and 16 ORIGINAL CHARTER OF THE seals of a majority of the commissioners, to the court from which the commission issued, there to remain of record. In case either party to the proceedings shall appeal from the valuation to the next session of the court grant- ing the commission, and give reasonable notice to the opposite part}' of such appeal, the court shall order a new valuation to be made by a jury, who shall be charged therewith in the same term, or as soon as practicable, and their verdict shall be final and conclusive between the parties, unless a new trial shall be granted; and the lands or right of way so valued by the com- missioners or jury shall vest in the said company in fee simple so soon as the valuation may be paid, or, when refused, may be tendered. Where there may be an appeal, as aforesaid, from On what con- the valuation of commissioners by either of the work to pro- parties, the same shall not prevent the works intended ceed pending litigation. to be constructed from proceeding; but where the appeal is by the company requiring the surrender, they shall be at liberty to proceed in their works only on condition of giving to the opposite party a bond, with good security, to be approved by the clerk of the court where the valuation is returned, in a penalty equal to double the said valuation, condi- tioned for the payment of said valuation and interest in case the same be sustained; and, in case it be reversed, for the pay- ment of the valuation thereafter to be made by the jury and confirmed by the court; Provided, That when the land cannot be had by gift or purchase the operations of the work are not Work not to to be hindered or delayed during the pendency of be delayed by legal process, any proceedings to assess its value, as aforesaid, nor shall any injunction or supersedeas be awarded by any judge or court to delay the progress of said work. 1. Character of title acquired. It will be noticed, from the above section, that, as soon as the commissioners appointed to assess the value made their return, and the railway paid or tendered the amount assessed, the title to the land or right of way immediately vested in the company in fee simple. The supreme court of Tennessee, in construing 1 this sec- tion, held: ''That the railway company, having constructed its road and paid the damages aforesaid, acquired an absolute estate in fee simple to said land, and is entitled to the exclusive possession and control of every pan thereof. The original owner, therefore, has no right to the occupa- tion or use of any part thereof within the limits so condemned and paid for." 4 Sneed, 528 [280]. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 17 The title and right to the use of the land and right of way, acquired under section 25 below, however, is materiallj' different. In that ease, the land is not jut hi for, and, though the company is given one hundred iVct uu each side of the center of the road, in the absence of any con- tract to the contrary, where the owner failed to apply in time for assess- ment, yet. the title secured is only an ametnent and not a fee *linple, and the landowner is entitled to the use of it until necessary for railroad purposes, though he must then give it up. 5 Pick., 293. 2. For what land may be taken. Land may be taken, under this section, for right of way. for approaches to the road for persons and ve- hicles, for places for receiving and delivering, loading and unloading, goods, merchandise, etc., but not for laud for the purposes of deposito- ric.-.. ^tort-houses, workshops, and houses for agents, etc. In the latter ca-i-s the company must rely solely upon its purctuwhiy power, which, under section*21 of this charter, it has the right to do. 1 1 Hum., 347. 3. Same, may make successive appropriations. The mere fact that the company condemned originally, under this section, fifty or one hun- dred feet for a right of way, will not prevent it now from condemning a.s much more ax man l>c necennar]i from time to time. This is so, even though the railway in some cases may have agreed and contracted not to do so, and the right of way was given to it under that condition. The board of directors have no power to bargain away the power of eminent loni'iin. 87 Ky.. 72: 45 Mo., 212; Rorer on Railroads, p. 372, 275; 16 Ohio St., 390; 54 Penn. St., 103; 10 Vroom, 45; 67 Barb., 426; 52 Ind., 16; Ran- dolph on Em. Dorn., p. 107. \ 116; 36 Conn., 196; 87 Ala.. 501; 85 Ala., 106; 101 Ind , 366; 1 Md., 553; Lewis on Em. Dom., \\ 247, 259; 52 Ind., 16. 42; 101 Ind.. 366; 113 111., 156; 26 Kan., 669; 13 Neb.. 361; 54 Pa. St., 103; 57 Ark., 359; 58 Pa. St., 249; Elliott on Railroads, W, 930, 962; 104 111., 323; 8 Nev.. 100; 58 Md., 539; 17 111.. 123; 9 Ky. L. R.. 924; 44 Hun (N. Y.), !'.: r> Col.. 270; 6 Col., 2; 71 111., 592; 18 Pick. (Mass.). 472; 5 Ore., 117. 4. How condemnation made now. The power of eminent domain conferred in the above section is an inviolable right that cannot be with- drawn by the legislature, nor surrounded with such conditions as will destroy its value. 14 Wend. (N. Y.), 51; 8. c., 18 Wend. (N. Y.), 9; 31 Am. Dec.. 313. Hut where a statute prescribes a mode by which lands may be condemned in the charter, and thereafter the legislature, by general law, prescribes a different mode, the company must proceed in the mode prescribed by the latter act. Such a statute does not impair vested rtyhtx, but merely affects remedies. Thompson on Corp., sees. 5407, 5437; 16 Am. Rep., 729; 47 N. J. L., 59; 54 Am. Rep., 114: 81 Ky., 221; 3 S. C., 381; 12 Heis. (Tenn.), 54. Subsequent legislation has provided general laws for condemnation of land, and these should doubtless be followed. See Eminent Domain herein. Refer to index. 2 Swan. 422. 5. For a full discussion of this section, together with the right of successive appropriations, occupation, and use of right of way, building on and tunneling same. etc.. see Eminent Domain, Rlyht of H'rj/. herein. Refer to Index. SEC. 25. in absence of contract, right of way one hun- dred feet, when. In the absence of any contract with the said company in relation to land through which the said road may pass, signed by the owner thereof, or by his agent, i n absence of or any claimant or person in possession thereof, which ers'offandVo may l>e confirmed by the owner, it shall be presumed assessment in that the land upon which the said road may be con- barred. 18 ORIGINAL CHARTER OF THE structed, together with a space of one hundred feet on each RI ht of wa s ^ e ^ tne cen ^ er f sa id road, has been granted to width of. ^ ne company by the owner thereof, and the company shall have good right and title thereto, and shall have, hold, and enjoy the same as long as the same be used only for the purposes of the road, and no longer, unless the person or per- sons owning the said land at the time that part of the road which may be on said land was finished, or those claiming under him, her, or them, shall apply for an assessment for the value of said lands, as hereinbefore directed, within five years next after that part of said road was finished, and in case the said owner or owners, or those claiming under him, her, or them, shall not apply for such assessment within five years next after the said part was finished, he, she, or they shall be forever barred from recovering the said land, or having any assessment Minor or feme or compensation therefor; Provided, Nothing herein in two years contained shall effect the right of feme covert or in- after removal of disability, fants until two years after the removal of their re- spective disabilities. 1. Width, of right of way one hundred feet, when. Under this sec- tion of the charter, if the right of way was not paid for by railroad, nor contract entered into with the landowner, the railroad has right to an easement of one hundred feet on each side of the center of said road, when necessary for railroad purposes, unless the landowner applied in time for assessment of value. Only the number of feet up to a hundred, actually necessary, to be taken from time to time. 5 Pickle, 293. For rights where land paid for, see 4 Sneed, 528. 2. The owner's possession and cultivation of any part of this one hun- dred feet is not adverse to railroad, and. although continued for thirty years, will not defeat the easement, and railroad company can take it when necessary for side tracks, etc. 5 Pickle, 293. See general discus- sion of subject herein, under Eminent Domain. See index. SEC. 26. Forfeiture and penalty for intrusion. If any per- son shall intrude upon the said railroad, or any part thereof, Forfeiture for ^ an v manner f use thereof, or of the rights and intrusion. privileges connected therewith, without the permis- sion, or contrary to the will of said company, he, she, or they shall forthwith forfeit to the said company all the vehicles that may be so intruded on said road, and the same may be Penalty for recovered by suit at law, and the person or persons so intruding may also be indicted for misdemeanor, NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 19 and, upon conviction, fined and imprisoned by any court of competent jurisdiction. As to the misdemeanor, see 3 Hum., pp. 481-483. SEC. 27. Obstructing or damaging road or bridges, pun- ishment. If any person shall willfully and maliciously destroy, or in any manner hurt, damage, or obstruct the said railroad, or any bridge, or any vehicle used for or in the transportation thereon, such person or persons so offending shall be liable to be indicted therefor, and, on conviction, shall be imprisoned not more than six nor less than one month, and pay a fine not less than twenty dollars; and shall be fur- ther liable to pay all the expenses of repairing the same; and it shall not be competent for any j>erson so offending against the provisions of this clause to defend himself by pleading or riving in evidence that he was the owner, or agent or servant of the owner, of the land where such destruction, hurt, dam- age, injury, or obstruction was done or caused, at the time the^ same was caused or done. Subsequent legislation has rendered this section of the charter unnec- essary, if not inoperative. By 5387 of the Tenn. Code (M. & V.), it is provided that '' whoever willfully and maliciously puts upon the track of any railroad in this state any kind of obstruction, or loosens or re- moves any of the rails or timbers, or loosens, destroys, or injures any of the machinery, gear, or apparatus of the locomotive or cars, or removes or changes any signal, so as to endanger the safe running of the locomo- tive and cars, or either or any of them, is guilty of a felony, and, upon conviction of either offense, shall be imprisoned in the penitentiary not less than two nor more than fifteen years." And by # 5388 it is provided that if death ensues from any of the above acts, the offender shall suffer death by hanging; and by the following section, "that if anyone is in- jured, the offender, if convicted, shall be imprisoned in the penitentiary from three to fifteen years." Similar laws are in force in Alabama, Georgia, and Kentucky. SEC. 28. Obstruction a public nuisance. Every obstruction to the safe and free passage of vehicles on the said road shall be deemed a public nuisance, and may l>e abated as such by an officer, agent, or servant of the company, and the ]>crson caus- ing such obstruction may be indicted and punished for erecting a public nuisance. The word "obstruction," as used by railroad men, is not such a term of art as requires explanation by an expert. i\ Heis. , 347. See, also, 3 Head, 522; 1 Bax., 55. 20 ORIGINAL CHARTER OF THE SEC. 29. Storage Charges allowed, When. The said com- pany shall have the right to take at the storehouses they may establish or annex to their railroad all goods, wares, merchan- dise, and produce intended for transportation; prescribe the rules of priority, and charge and receive such just and reason- able compensation for storage as they, by rules, may establish (which they shall cause to be published), or as may be fixed by agreement with the owner, which may be distinct from the Wot to charge rates of transportation; Provided, That the said com - diaf" trans- pany shall not charge or receive storage on goods, possible. wares, merchandise, or produce which may be de- livered to them at their regular depositories for immediate transportation, and which the company may have the power of transporting immediately. Where goods are received and deposited in depot or warehouse, the liability of carrier, as such, ceases eo instnnti. Thereafter its liability is that of a warehouseman. 7 Pickle, 699. Not extended by Acts 1870, ch. 17. 8 Lea, 32. The duty of a warehouseman is to exercise ordinary care and diligence only. 5 Pickle, 2, 33, 35. The delivery of goods and payment of freight are concurrent acts, to be performed at the same time, if road desires. 9 Heis., 564. Railroad may demand freight charges before receiving and transport- ing goods. Railroad has no lien on goods for demurrage, in absence of contract or clause in bill of lading. 15 Lea, 261. Such a clause should be in- serted in bill of lading. By \ 2789 (M. & V. Code), freight uncalled for after six months and one day may be sent to one of the nearest principal offices and sold for charges. In absence of controlling necessity to sell, railroad can only enforce lien by due process of law. 9 Heis., 564. SEC. 30. Dividends paid, When. The profits of the com- pany, or so much thereof as the board of directors may deem advisable, shall, when the affairs of the company will permit, be semiannually divided among the stockholders in proportion to the stock each may hold. liy Acts 1847-8, ch. 70. sec. 3, this section of the charter was amended so that the company should be required to estimate and pay semiannu- ally to the several holders thereof a sum equal to six per cent, per annum on the capital stock actually paid in, to be charged to the cost of construction, provided a majority of the stockholders, at their first regular meeting, agreed thereto. See act itself in this compilatiop, in next chapter. See general discussion of dividends herein. Refer to index. NASHVILLE, CHATTANOOGA A 8T. LOUI8 RAILWAY. 21 SEC. 31. Banking prohibited, may insure. The said com- pany is hereby expressly prohibited from carrying on any banking operations, but may effect insurance on lives and proj>erty transported on the road. Railroad has right under this section to insure. It may also have insurance companies to insure for it not only its in- terest and liability, but the whole value of goods intrusted to it for car- riage. In such cases it may collect the whole value, reimburse itself for its special loss, and hold the surplus in trust for the owners. 5 Pick., 2, 45. See, also, 93 U. S., 541; 133 U. S., 409. As an insurer the liability of the railroad is secondary. 13 Wall. (U. S.), 367. SEC. 32. Crossings Of roads and lands. Whenever, in the construction of said road, it shall be necessary to cross or in- tersect any established road or way, it shall be the duty of the company to construct said road across such established road or way so as not to impede the passage or transportation of per- sons or proj)erty along the same; or where it shall be necessary to pass through the land of any individual, it shall be their duty to provide for such individual a proper wagon way or ways across said road from one part of his land to the other. See note to section 22 and 23 of this charter; 3 Pickle, 712; 1 Bax., 55. The term "public road " does not embrace the streets and alleys of a city. 3 Head, 596. See general discussion herein under CrosKlngs. 17 Pick.. 197 SEC. 33. Additional powers. The said company shall pos- sess such additional powers as may be convenient for the due and successful execution of the powers granted in this charter, and for the successful construction and management of the work. Under this section company has no authority to guarantee a specified dividend on its stock as an inducement to subscribers to take it. 1 Pickle, 703. See Acts 1870, ch. 14, included in this compilation, in next chapter, which purports to construe the powers granted under this section, and empower the company to borrow a sum not exceeding three million dol- lars. It is not, however, in the province of the legislature to expound the meaning of existing laws. They can say what the law shall be, but not what it is. 2 Hum., 304; see 1 Bax., 319. SEC. 34. Charter, how amended. This charter shall be amendable from time to time by the legislature, whenever the president and directors shall unanimously petition for amend- ments, specifying in the petition the nature of such amend- ments; and, when such amendments shall U- adopted by the 22 ORIGINAL CHARTER OF THE legislature and submitted to the directory, and be accepted and adopted unanimously by the president and directors, they shall be obligatory on the stockholders, and not otherwise. 1. Petition for amendment not necessary. An amendment accepted and adopted by the president and directors unanimously will be valid, although not recommended by the unanimous petition of the president and directors, that being merely directory. 8 Bax., 108. 2. Charter irrevocable. As the legislature did not reserve in this charter the power to modify, amend, or repeal the same, or any part thereof, all the rights granted herein are irrevocable. The legislature cannot thrust an amendment upon it or enforce the abrogation of any right conferred. The act of incorporation, being legal in itself, is a contract between the state and the corporation, investing it with a legal estate in the franchises named in the charter, and, being such a contract, it is under the protection of the constitution of the United States, and is irrevocable and inviolable by any act of the legislature, or even a subsequent con- stitutional convention of the state, without the consent of the corpora- tion. This has been settled since the Dartmouth College case (4 Wheaton, U. S. , 468), and is now supported and strengthened by a long and un- broken chain of authorities. Tennessee authorities, 9 Bax., 442; 3 Cold., 88, 496; 1 Sneed, 114; 9 Yer., 488: 11 Lea, 336; 3 Hum., 305; 1 Heis., 284; 3 Tenn. Chy., 405; 13 Lea, 400; 2 Pickle, 614; 3 Pickle. 155; 1 Head, 81; 3 Sneed, 629. United States authorities. 80 U. S., 568 (13 Wall., 264); 83 U. S., 326 (16 Wall., 244); 87 U. S.. 282 (20 Wall., 36); 29 U. S., 938-9 (4 Peters. 514); 1 Black, 436; 117 U. S., 129 (830), 139 (833); 4 Wheat. (U. S.), 468. SEC. 35. Exemption from military, jury, and road duty. The president, directors, clerks, agents, officers, and servants of said company shall be exempt from military duty, except in cases of invasion or insurrection, and shall also be exempt from serving on juries and working on public roads. This is class legislation, and unconstitutional. 4 Lea, 316. This section was first decided to be valid in Alabama. Johnson v. State (1890), 41 A. & E. R. R. Cases, 275, but subsequently overruled. 91 Ala., 70; 53 A. & E. R. R. Cases, 37. SEC. 36. Slaves, power tO buy. The company shall have full power and authority to purchase and own such number of slaves as may be necessary for the construction of said road, and for keeping the same in repair. Slavery abolished by Constitution 1870. See 3 Heis., 653; 2 Cold., 14. SEC. 37. Directors trustees in case of dissolution. if, by decree or otherwise, the said corporation shall be dissolved, the president and directors of said company are created trustees, with such powers only as may be necessary to collect the debts due the company, preserve the property, pay the debts, and NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 23 distribute the projxjrty and effects of the company to those who may be entitled thereto under the charter. For what causes dissolution may take place, see Charter, subhead " Forfeiture of,'' herein. SEC. 38. Exemption from taxation. The capital stock of said company shall lie forever exempt from taxation, and the road, with all its fixtures and appurtenances, including the work- shops, warehouses, and vehicles of trans|x>rtation, shall be ex- empt from taxation for the period of twenty years from the completion of the road, and no longer. 1. Under this section, an elevator, though situated outside the right of way, if necessary and used as a depot or warehouse, and located at such a distance on account of natural disadvantages, was exempt, during the twenty years, together with the side track, etc., necessary to connect it with the road, and the land on which both are constructed. State a?id County v. N., C. & St. L. Ry., 2 Fickle, 438. 2. Exemptions from taxation iu charters prior to 1 870 and accepted by corporators and acted upon, is a contract binding upon state which can- not be impaired by subsequent legislation or constitutional provisions. 2 Pickle, 614; 3 Cold., 88, 496; 1 Sneed, 114; 9 Yen. 488. See, also, 13 Lea, 400; 11 Lea. 336; 9 Wax.. 442. 546; 8 Bax., 539; 6 Kax., 415, 441; 3 Pickle, 155: 3 Hum.. 305: 1 Heis., 284; 3 Sneed, 629; 1 Head, 81. See, also, 80 U. S., 568; 83 U. S., 326: 87 U. S., 282; 29 U. S.. 939. 3. The exemption of the shares of stock from taxation in this section, applies to shares in hands of individual stockholders. 117 U. S., 830. 4. A grant to railroad of all rights, powers, and privileges of another company entitles it to the same exemptions from taxation that other company had. 117 U. S., 833. For right of purchaser of railroad as to exemptions, see 12 Lea, 583. SEC. 39. Road tO be Completed When. The railroad author- ized by this act shall be commenced within three years after the pas-age of this act, and shall be finished within six years thereafter; otherwise the charter hereby granted shall be void. Charter privileges must be exercised within the time limited by the charter or subsequent legislation. Korer on Railroads, p. 332. SEC. 40. Branches, who may build, duty of this road as to. Any individual or individuals, company or body corporate, with permission of the legislature of this state, may hereafter construct branches to unite with the said Nashville & ^J"" 100 Chattanooga Railroad; and it shall be the duty of 5n"rShtto said company, when required, to receive on their cJrs'over.'ttc road the full loaded freight cars from such branches, and trans- port the same to their destination, and to return them without changing the loads thereof, or charging for the transjwrtation 24 ORIGINAL CHARTER OF THE of the goods, wares, merchandise, and produce therein any greater rate of freight than they charge for similar goods, wares, merchandise, and produce in their own cars; Provided^ That the company shall not be compelled to receive such cars on their road unless they are constructed in the same manner and are of equal strength with their own cars, of which the engineer of the main road shall be the judge; And provided, That the company shall not be required to receive any cars from what freight sucn branches without receiving payment for at least branches. twenty miles transportation; And provided also, That the said company shall be entitled, in all respects, to sim- ilar and equal privileges on any branches constructed to unite with their road, subject to the same restraints. (Acts Tenn., 1845-6, ch. 1, passed December 11, 1845.) 1. Connecting road, or branch, however short, under this section, may be charged by this company the regular freight for at least tioenty miles, and unless it is paid this company is not required to receive it. It is questionable whether this clause is valid now. 2. The privilege granted other roads of connecting with this is oblig- atory while this section is in force, but the section may be repealed by subsequent legislation, as it is not in the nature of a contract. See Rorer on Railroads, p. 28. 3. One railroad cannot bind connecting road as to rates to be charged, unless by agreement between them. 7 Bax. , 345. 4. If articles shipped are of different character than those named in bill of lading, and upon which rates are higher, connecting line may transport, charge, and collect increased rate. 7 Bax., 345. 5. Receiving carrier is liable for goods lost by connecting line, in the absence of agreement or clause in bill of lading to the contrary. 6 Heis., 143, 208. 6. If liability is not restricted, and goods are consigned to a point be- yond terminus, but on line of connecting route, carrier is bound to de- liver at destination. 7 Heis.. 253. 7. Trains of one road running over connecting line and under exclusive control of its own servants, are liable for all damages occurring through negligence; but if servants of both companies jointly control the train, both companies are liable. 6 Heis., 347. 8. Branch roads. As to right of this company to build branch roads, see discussion herein under Branch Roads; refer to index. 9. Same. Under Acts of Tenn., 1849-50, ch. CCLXVI., sec. 3, it was provided that "the Shelby ville branch and all other branches as may be made, shall have all the rights and privileges and be placed in all re- spects on the same footing with the Nashville & Chattanooga Railroad. This is a very important act, and one that has heretofore been over- looked. Under it all branches lawfully constructed by this railway have all the rights and privileges of the main stem. See discussion herein; refer to index. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 25 CHAPTER II. ACTS AND DECREES AMENDING CHARTER OF AND RELATING TO THE MAIN STEM OF THE N., C. 4 ST. L. KF. WHICH WAS FORMERLY THE N. A C. R. R. CO., IN TEN- NESSEE, ALABAMA. AND GEORGIA. This chapter contains only those decrees and acts relating ercl'ttirely to the main stem of the N.. C. A St. L. Ry.. which was formerly the Nashville & Chattanooga Railroad Com- pany. Decrees and acts affecting its other branches, such as its Northwestern branch. Lebanon branch, etc.. will be found in subsequent chapters relating to those roads. As the original Nashville A Chattanooga Railroad Company ran through a portion of Tennessee, Alabama, and Georgia, this chapter will contain all decrees and acts of those states affect- ing the road, in the order mentioned. DECREES. N. & C. R. R. Co. ET AL., Ex PARTE. [PETITION.] Decree Changing name. This cause came on to be heard May 31, 1S73, before the Hon. W. F. Cooper, chancellor, pend- ing in the chancery court for the county of Davidson, state of Tennessee, upon the petition of the Nashville & Chattanooga Railroad Company, incorporated by the general assembly of Tennessee, and of its directors, E. VV. Cole, Thomas C. White- side, Godfrey M. Fogg, Thomas Lipscomb, John F. Anderson, John B. Hawkins, John W. Childress, W. S. Huggins, A. E. Patton, lien May, V. K. Stevenson, John M. Bass, Edward L. Jordan, Jackson Pryor, John P. King, John Frizzell, W. R. Butler, and A. Frierson, the last two being state directors, when it appeared to the court that on January 9, 1873, the petition in this cause was filed, and which has been enrolled in book No. 3, page 169, and that by said petition the court is asked to pronounce a decree amending the charter of said company as specified in said petition; that on January 27, 1873, the clerk and master of this court caused publication to be made for thirty days in the Republican Banner* a ne\vsp!i|>er published in the city of Nashville, Tennessee, which publication was in the words and figures following, to wit: 26 DECREES AND ACTS OF TENNESSEE RELATING TO No. 7423. IN CHANCERY AT NASHVILLE. STATE OF TENNESSEE, OFFICE CLERK AND MASTER CHANCERY COURT. NASHVILLE, January 27, 1873. WHEREAS, The Nashville & Chattanooga Railroad Company and its directors, E. W. Cole, president, and others, have filed their petition in this court to have the charter of said company amended as follows, viz. : That said corporate body shall be known and designated by the name and title of "The Nashville, Chattanooga & St. Louis Railway" instead of the Nashville & Chattanooga Railroad Company: It is therefore ordered that all persons desiring to resist the amendment of said charter or the granting the prayer of said petitioners, enter their appear- ance herein at the courthouse at Nashville, Tennessee, on the first Monday in April next, 1873, that being the next regular term of said court, and then and there show cause, if any they have or can, why the prayer of said petitioners and the amend- ment of said charter should not be granted, or the matter of said petition will be heard ex parte, and that a copy of this order be published for thirty days in the Nashville Republican Banner. NATHANIEL BAXTER, JR., Clerk and Master. FOGG, WHITESIDE & FRIZZELL, Solicitors for Petitioners. It also appearing to the court that, by an act of the general assembly of the state of Tennessee, ch. 1, passed December 11, 1845, entitled "An act to incorporate the Nashville & Chatta- nooga Railroad Company," and the act amendatory thereof, the said Nashville & Chattanooga Railroad Company was incor- porated for the purpose of establishing a communication by railroad between Nashville & Chattanooga, in' the state of Ten- nessee; that, by said acts of the assembly and others of a gen- eral character, there were conferred upon said company the powers and privileges incident and necessary to the transaction of the business for which it was incorporated, and among which was the power to purchase and own connecting roads; that said NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 27 company has purchased, and is now the owner, of the railroad known as the Nashville & Northwestern Railroad, running from ' O Nashville, Tennessee, to Hickman, in Kentucky, in the direc- tion of St. Louis, in Missouri; that, under the authority afore- said, said company is now operating a railroad from Chatta- nooga, via Nashville, to Hickman, its principal office being at Nashville; that the |>ersons named as directors in said peti- tion constitute the president and directors of said company; that, in pursuance of the provisions of sec. 34 of said act of December 11, 1845, the said president and directors unani- mously petition that the charter of said company may be amended in the manner mentioned in the petition filed in this court. It also appeared that no person has appeared to show cause why the prayer of said petition should not be granted. The court being satisfied that the prayer of said petition is legitimate and proper, and deeming the same necessary, and not inconsistent with the statutory provisions upon the subject nor the general laws of the state, nor hurtful to the public good, doth order, adjudge, and decree, in pursuance of the powers vested in courts of chancery by virtue of paragraph 23, sec. 15, of the acts of the general assembly of Tennessee, ch. 54, approval January 30, 1871, entitled "An act to authorize the chancery courts of this state to grant letters of corporation;" that the act of the general assembly aforesaid, incorporating the Nashville & Chattanooga Railroad Company, passed Decem- ber 11, 1845, be altered, amended, and changed so that said company and body corporate shall be known and designated by the name and style of "The Nashville, Chattanooga & St. Louis Railway," instead of the "Nashville & Chattanooga Railroad Company," according to the prayer of the petition filed in this cause. It is further ordered that the Nashville & Chattanooga Railroad Company pay the costs of this proceed- ing, for which execution may issue, and, upon the payment of the same, the clerk and master will issue a certified copy of this decree for registration. (Registered May 31, 1873, in minute book "X," p. 220-222, in chancery court at Nashville, Tenn.) 1. This decree, changing the name of the corporation to the Nash- ville, Chattanooga & St. Louis Railway, was clearly within the power of 28 DECREES AND ACTS OF TENNESSEE RELATING TO the chancery court at that time, and the decree is valid. 3 Bax., 98; 1 Tenn. Chy. Rep., 83, 95, 97. See, also, 12 Lea, 97, 103; 11 Lea, 3; 9 Lea, 380; 1 Lea, 462. 2. For decree of chancery court, amending the charter in other re- spects, see further on in this chapter. ACTS OF TENNESSEE AMENDING CHARTER. 1. Charter amended, allowing stockholders one vote for each share of stock. SECTION 4. Be it further enacted, That the charter of the East Tennessee & Virginia Railroad Company, and of all other rail- roads in the state, be so amended that hereafter, in all elections held by any of said companies, every stockholder shall be enti- tled to one vote for each share of stock owned by him, pro- vided it shall not interfere with the vested rights of said com- panies. SEC. 5. That this act shall take effect from and after its passage. (Acts Tenn., 1868-9, ch. 2, sec. 4, p. 83.) 1. This amendment was accepted by the company September 20, 1875, and now in all elections each share is entitled to one vote. See discus- sion of rig-ht, method, and scale of voting, herein. Refer to index. 2. Previous to this time the chancery court at Nashville had amended the charter of the company so as to allow "the owner of one or more shares, up to and including four, one vote; the owner of a greater num- ber of shares than four, one vote for each four shares over and above four.'' Entered May 13, 1872, minute book " V," p. 174. 2. Charter amended, stockholders at any meeting may fix time and pla'ce of next meeting. SECTION IV. Be it further enacted, That the charter of the Nashville & Chattanooga Railroad Company be so amended that the stockholders may at any meeting fix on the day and place or places where the subsequent meetings of stockholders and election of directors shall be held. SEC. V. Be it further enacted, That this act shall take effect from and after its passage. (Acts Tenn., 1857-8, ch. 8, sec. 4; passed November 11, 1857.) 3. Charter amended, directors to make by-laws and appoint judges and clerks of future elections, dividends on stock. how paid. SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the board of commissioners of the Nashville NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 29 & Chattanooga Railroad is hereby authorised and E j ect | 0n0 f empowered to appoint three judges and two clerks, dlrecwrs - for the purpose of holding an election for h'fteen directors of said company on January 24, 1848,* and upon the certificate of said judges the said directors shall be authorized TO make by- to qualify as directors, and to make all rules, regu- etc. lations, and by-laws necessary for the government of said com- pany and management of its affairs not inconsistent with the general laws of the land. * Up to this time there was no board of directors; hence there could be no unanimous petition of the president and directors, and no unani- mous acceptance and adoption, as prescribed in section 34 of the charter, and this mode was adopted in lieu of the one therein prescribed for the ascertaining of the consent of the corporation to an amendment of its charter. At the first meeting of the stockholders, as provided in this act, the following resolution was unanimously adopted: "Resolved (a majority of the stockholders now agreeing thereto), That the assent of the com- pany is hereby given to the amendments proposed in their original char- ter by an act of the general assembly of the state of Tennessee, passed January 21, 1848, entitled 'An act to amend the charter of the Nashville i Chattanooga Railroad Company/" It will be observed that the first section of this act so amends the ninth section of the original charter as to confer upon the directors the power to make ''all rules, regulations, and by-laws, "etc., instead of the stockholders at their first meeting, as provided in said ninth section. SEC. 2. Be it enacted, That the board of directors of said company shall have power to appoint three judges Board to ap- , point judges and two clerks, from year to year, for the purpose and clerks, of holding elections for directors. SEC. 3. Be it enacted, That the charter of said company be further so amended that the said company be re- paid stock to quired to estimate and pay semiannually, to the sev- terest. how. eral holders thereof, a sum equal to six per cent, per annum on the capital stock of said company actually paid in, to be charged to the cost of construction; Provided, A majority of the stock- holders at their first regular meeting agree thereto. (Acts Tenn. , 1847-8, ch. 70, passed January 21, 1848.) 4. Charter amended allowing city of Charleston and the Georgia Railroad & Banking Co. to have representation in board of directors. SECTION 1. Be it enacted by t/te General Axxetnbly of the State of Tennessee, That the charter of the Nashville & Chatta- 30 DECREES AND ACTS OF TENNESSEE RELATING TO nooga Railroad Company is hereby so amended that it may be lawful for the city of Charleston, in South Carolina, to appoint two of her citizens to represent her stock in said company as directors of the board of said company, with all the powers and privileges which belong to the other directors; and, in like manner, the Georgia Railroad & Banking Company shall have the right to appoint one director to represent its stock; Pro- vided, That eight of the directors shall hereafter, as heretofore, constitute a quorum for the transaction of business. (Acts Tenn., 1849-50, ch. 266, p. 530.) The city of Charleston subscribed for 500,000 of the stock in this company, as per its ordinance passed April 11, 1848, and the Georgia Railroad & Banking Company subscribed for $250,000, as per resolution of that company also passed April 11, 1848, the conditions of each sub- scription being, among other things, that they should be allowed repre- sentation in the board; hence the above act. 5. Charter amended, may lease Winchester & Alabama Rail- road, and any other railroad connecting with Nashville & Chattanooga Railroad Company, how. SECTION 1 . Re it enacted by the General Assembly of the State of Tennessee, That the Nashville & Chattanooga Railroad Com- pany are hereby authorized and empowered to lease the Win- chester & Alabama Railroad, and the branch to Fayetteville, or any other railroad connecting with said Nashville & Chatta- nooga Railroad, for such time and upon such terms and condi- tions as may be agreed upon between the president and direct- ors of the said Nashville & Chattanooga Railroad Company and the president and directors of the railroad company contracted with. SEC. 2. Be it further enacted, That the companies of all lat- Extended to era ^ s an ^ main line railroad companies shall be en- other roads. tit i e( j to the benefits of this act, and shall have the benefits and privileges and powers conferred on the said com- panies mentioned in the first section of this act. SEC. 3. Be it further enacted, That all railroad companies availing themselves of the provisions of this act, as well as the companies specified in the first section, shall, in the hands of the lessees, be liable to all liens in favor of the state, and to all liabilities imposed by their charters or the general law of the NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 31 land, in the same manner that the company or companies to leasing would have been had no lease been made; I*roi*idtd, That the payment of the sinking fund provided for by existing laws shall l>e secured by the company so leasing said road. (ActeTenn., 1857-8, ch. 8; passed November 11, 1857.) Since the passage of this act there have been enacted ample general laws for leasing of railroads. See Leutse, herein. Refer to index. This act, however, is still in force. The general laws furnish methods. 6. Nashville & Chattanooga Railroad allowed to subscribe for stock in Chattanooga, Harrison, Georgetown & Charles- ton Railroad Company. Be it enacted, That the Nashville & Chattanooga Railroad Company, the East Tennessee & Georgia Railroad Company, and the Memphis & Charleston Railroad Company, shall each be authorized to subscribe for stock in the Chattanooga, Har- rison, Georgetown & Charleston Railroad Company, provided the stockholders of the company proposing to make a subscrip- tion agree thereto. (Acts Tenn., 1853-4, ch. 319, sec. 20; passed February 24, 1854.) ACTS OF TENNESSEE RELATING TO NASH- VILLE & CHATTANOOGA RAILROAD COMPANY. 1. Bridge over Tennessee river allowed to be constructed by Tennessee legislature, how. SECTION 2. Be it further enacted, That whereas a consid- erable portion of the bridge authorized by the act entitled "An act to amend the charter of the Nashville & Chattanooga Rail- road Company," passed January 19, 1850, has been recently destroyed by tire; and, whereas, the said railroad company, in erecting their bridge, constructed a drawbridge, which remains in the portion not consumed by the recent burning, that the aforesaid act be so amended that the said Nashville & Chatta- nooga Railroad Company shall not be required to build any part of their bridge thirty feet or at any other particular eleva- tion above extreme high-water mark, provided they keep and maintain a gd draw or revolving bridge, opening to a width 32 DECREES AND ACTS OF TENNESSEE RELATING TO sufficient to allow the free passage of steamboats and other water crafts, and so as, when open, to leave a clear space be- tween the piers at the draw at least sixty feet. (Acts Tenn., 1855-6, ch. 239, sec. 2, p. 487; passed January 3, 1856.) The old bridge that was burned was required to be at least thirty feet above extreme high-water mark between the two piers next to the western bank, or an3' two piers the company might deem best, the dis- tance, however, between the two so selected to be at least one hundred and sixty feet. (Acts Tenn., 1849-50, ch. 266, sec. 2.) Alabama acts. The legislature of Alabama, by Acts 1849-50, No. 123, sec. 2, passed a similar act to that of Tennessee of 1849-50, ch. 266, sec. 2, as set out above, and subsequently passed an act identical with that of Tennessee of 1855-6, ch. 239, p. 487, also above set out. See Acts Ala., 1855-6, p. 11. in this chapter. After the bridge had been built and the draw put in, under the Acts of 1855-6, p. 11, of Alabama, and Acts of 1855-6, ch. 239, p. 487, of Ten- nessee, the legislature of Alabama, by Acts 1888-9, p. 443, again required the bridge to be at least thirty feet above extreme high water, etc. This part of the act, however, is void as against the company's vested rights. It is further inoperative, as congress, under Acts 1888 and 1890. has now taken charge of bridges over navigable streams. See discussion of this in notes to sec. 22 of Nashville & Chattanooga Railroad charter. 2. Nashville & Chattanooga Railroad Company allowed to con- tract with Memphis & Charleston Railroad for use of road between Stevenson and Chattanooga, how; state aid. SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the Memphis & Charleston Railroad Com- pany and Nashville & Chattanooga.Railroad Company Joint use of J J steve/soTto ma y' ^ v agreement, contract for the joint use or Chattanooga, ownership of that part of the Nashville & Chatta- nooga Railroad extending from Stevenson to Chattanooga, on such terms as said companies may mutually agree upon. SEC. 2. The contract, if made, shall be submitted to the gov- ernor and road commissioner of the state, and, if approved by Contract to them, then, in order to provide for the extension in by governor, making necessary additional tracks and otherwise preparing the road to accommodate fully the trains and busi- ness of both companies, and to enable the Memphis & Charles- ton Company to comply with the contract of consolidation, the said Memphis & Charleston Railroad Company shall be entitled to receive from the governor such state bonds as are issued Bondsforim- under the internal improvement laws of the state, to prov n ic , an amoun {. e q Ua i ^0 one-half of the amount heretofore N \-ll\ll.I.K. CHATTANOOGA A ST. LOUIS RAILWAY. 33 jiven by law to said company, to enable them to make an in- < Impendent extension of their road to Chattanooga, and, in lieu of ->aid former grant of state aid, the amount to be ascertained by report of the road commissioner to the governor. SEC. 3. For the payment of such bonds and the interest thereon, the said Memphis & Charleston Railroad Company shall be liable, and their entire road and appurtenances be lx>und, to the state in the same manner as for state bonds heretofore issued to said company; Provided, That section 5 of an act passed February 21, 1856, ch. 120, shall apply in full force to said Memphis & Charleston Rail- road Company. SEC. 4. The bonds of the state shall not issue to said com- pany until it shall have expended twenty thousand Nottoissue dollars in the improvement of said Nashville & Chat- tin when - tanooga Railroad from Stevenson to Chattanooga, this fact to l>e ascertained by report of the commissioner of roads and con- firmed by the governor, and the balance of the bonds to be issued shall not be issued to a greater amount than the amount of work actually done by said company at the time of applica- tion, according to the true intent and meaning of the foregoing provisions. (Acts Tenn., 1857-8, ch. 150; passed March 19, 1858.) Trains of one road running over connecting line and under exclusive control of its own servants, is liable for all damages occurring through negligence. Kut if servants of both companies jointly control the train, both companies are liable. 6 Heis. (Tenn.), 347. 3. Shelbyville branch and other branches to have rights and privileges of Nashville & Chattanooga Railroad Company. SEC. 3. Be it enacted, That the Shelbyville branch, and such other branches of the Nashville & Chattanooga road as may be made, shall have all the rights and privileges, and shall be placed in all respects on the same footing with the Nashville & Chattanooga road; Provided, That nothing in this act shall be so construed as to diminish the liability of the stockholders of the company in any way. (Acts Tenn., 1849-50, ch. 266, sec. 3; passed January 19, 1850.) This is a very important act. It does not expressly confer the power on the railway company to build brunches in the future, but it at least 3 34 DECREES AND ACTS OF TENNESSEE RELATING TO clothes the branches that it acquires the right to build, with all the rights and privileges of the main stem. 4. Watchman at Church street crossing in Nashville required. SEC. 5. Be it further enacted, That it shall be made the duty of the president and directors of the Nashville & Chattanooga Railroad Company to keep at the crossing at the depot in the city of Nashville a man employed to notify travelers or persons passing on the Richland turnpike of the approach and departure of the cars, and that said cars shall not blow their whistle in coming into or going out of said depot; that it shall be a mis- demeanor in the superintendent at said depot to violate this act, and punished as other cases of misdemeanor; that any person or persons may sue for and recover the sum of one hundred dollars from the president and directors of said road for a vio- lation of this act. (Acts Tenn., 1857-8, ch. 130, passed March 15, 1858.) This act was not made as, nor accepted by the company as an amend- ment to its charter. It was simply a police regulation, and as such has doubtless long since been repealed by implication. 5. Nashville & Chattanooga Railroad Company authorized to lease Nashville & Northwestern Railroad, terms and conditions. AVHEREAS, At a meeting of the directors of the Nashville & Northwestern Railroad Company, held in the city of Nashville on the twenty-seventh day of October, 1869, E. \V. Cole, president of the Nashville & Chattanooga Railroad Company, submitted a written proposition, on the part of said Nashville & Chattanooga Railroad Company, for a lease to said company of the Nashville & Northwestern Railroad, for a term of six years, which proposition was in the words and figures following: The Nashville & Chattanooga Railroad Company propose to Proposition lease the Nashville & Northwestern Railroad, for a or agreement . . , ,, , of lease. period of six years, upon the following terms and conditions: It will expend upon the roadbed, superstructures, bridges, and trestles, and in the repair and purchase of rolling stock, within the next six months, the sum of $100,- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 35 000, and as speedily as possible put the road in as good condi- tion as other connecting roads, and supply it with rolling stock sufficient to meet the requirements of the business of the road in freights and passengers, and of the same quality and char- acter as similar rolling stock of the Nashville & Chattanooga road, and continue to keep the road in good condition, and the rolling stock in like good order and condition, for and during the full term of the lease, and the same is fully ended, and to return the road and rolling stock in like order and condition at the expiration of the lease; all repairs, improvements, and additions to )>e made at the usual reasonable and customary prices for the time being. The present rolling stock, materials, and personalty of the Nashville & Northwestern Railroad Company on hand, and to be valued by three persons, one to be selected by each of the contracting parties, and they to select a third, and taken by the Nashville & Chattanooga road at the valuation, and returned in kind at the end of the lease upon like valuation. The road shall continue, during the lease, to be operated on its present line, and upon everv part of it. without .,..... . ' Line of road, discrimination against any part, unless with the con- sent of the board of directors of the Nashville & Northwestern Railroad Company, and the lessee shall so operate as to foster :me ratably divided between the roads in proportion to the length of the two roads to each other, or the distances carried on each, and the local earnings are to l>e cred- ited to the lessor. The lessee agrees to make no charge for use of tools, rent of shops, or yard room, or pay of yardmen, at Nash- ... , . .. ' Tools, etc. ville, during the continuance of this lease. 36 DECREES AND ACTS OF TENNESSEE RELATING TO One-third of the salaries of the president, superintendent, secretary and treasurer, freight and passenger agents, and en- officer ai- o' neer ^ the Nashville & Chattanooga Railroad Com- aries. etc. pany shall be paid out of the earnings of the Nash- ville & Northwestern Railroad, and the share of the lessor of these salaries shall not exceed the following sums: President, $3,000 per annum; superintendent, $2,000; secretary and treasurer, $2,000; general freight agent, $500; general pas- senger agent, $500; engineer, $1,000. There shall also be paid out of the earnings of the road the salary of an agent, to be appointed by the board of directors of the Nashville & North- western Railroad Company, as hereinafter provided, to super- intend the interests of said company under this lease, which salary is fixed at $ . No other agent or officers shall be employed, except such as are necessary to operating the road, and devote their whole time and attention to the business of the road, and as are usual in such cases, who shall be paid out of the earnings of the road the same compensation which is al- lowed similar agents and officers of the Nashville & Chattanooga Railroad Company for similar services. The board of directors of the Nashville & Northwestern Railroad Company may elect an aent, to hold his office during the pleasure of the Agent of Northwestern b ai 'd> ^ represent said company and protect its Railroad. interests during the lease, whose duty it shall be to give a general supervision to all the business of the road, and all transactions under this lease, with the right to have free ac- 7 O cess at all times to the rolling stock, property, and effects used in running the road, with a view to ascertaining its condition, and whether any or what repairs are required, and to the books of the business of the two roads, so far as they relate to or have any connection with the business or operations under this lease. He shall be consulted as to all expenses, ordinary or extra- ordinary, but without' having the right to prevent them, if deemed necessary by the lessee. If, however, the agent shall dissent, the matter shall be suspended until the contracting parties have come to some agreement or the matter arbitrated as hereinafter provided. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 37 The agent shall make a report to the board of the lessor at least once in every three months, or of tener, if neces- Reports. sary or required. All matters of difference arising under this lease, either as to the operation of the road, the expense incurred, or other- wise, which cannot be amicably adjusted by committees of the two boards, shall be submitted at once to the arbit- , ,, -ii/i! Arbitration, rament and award of three railroad officers or engi- neers, one to be selected by each of the parties and one by these two, whose decision shall be final and binding on the con- tracting parties. All depot houses, sidings, buildings, and appurtenances of the road shall be returned with the roadbed and roll- Explration ing stock, in good order and condition, at the expira- of lets *' tion of the lease. Regular and exact accounts shall be kept by the lessee of all the earnings and expenditures in operating the road, to which the agent al>ove provided for shall have full access; and monthly reports and settlements shall be made between the parties. The lessee is to have control of the road and of its operations under the lease, and to receive all the earnings of ite business, and shall l>e entitled, out of these earnings, to pay the salaries as hereinbefore provided, and all the ex- penses of running said road, and to reimburse itself the money advanced to put the road in good condition, and to furnish roll- ing stock as herein stipulated, with interest. Any surplus of earnings after these disbursements shall be paid to the State of Tennessee monthly, at the expira- Surplus tion of each and every month during the time of the ""'"i 8 - lease, to be credited to the interest due, or to become due, to the state upon the lx)nds issued to the lessor, and which are a lien by statute upon said road. If the surplus earnings should, during the term of lease, pay off the arrears of interest due the state, and exceed the interest which may thereafter fall due semiannual!}', such excess shall be paid to the lessor or its order. It is further agreed that no agent or officer of either road 38 DECREES AND ACTS OF TENNESSEE RELATING TO shall be allowed to engage in any speculation or business con- nected, or have anything to do, with the transportation or other business of the road. [SIGNED.] E. W. COLE, Pres. of the N. & C. R. R. Co. AND, WHEREAS, The board of directors of said Nashville & Northwestern Railroad Company, at their meeting aforesaid, Preamble. having duly considered said proposition, recommend its acceptance to the stockholders of said company; and, WHEREAS, At a meeting of said stockholders, duly and legally called and held at the city of Nashville, on the twenty-eighth day of October, 1869, a majority of them voted in favor of accepting the. proposition for said lease as above set forth; and, WHEREAS, Said Nashville & Northwestern Road is at present in the hands of the state authorities, whereby the assent of the Same. State of Tennessee is made necessary to the consum- mation of said contract and to the validity of said lease; and, WHEREAS, In the opinion of this general assembly, it is manifestly to the interest of the state as well as of said railroad companies and the public that said proposition should be ac- cepted and said lease approved, ratified, and made obligatory on all the parties thereto; therefore, SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the above proposition be, and the same Proposition * s nere by, accepted, and said Nashville & Chatta- accepted. nooga Railroad Company is hereby authorized to take possession of and control of said Nashville & Northwestern Railroad, and the property thereof, according to the terms and conditions of the proposition hereinafter set forth; Provided, That the present president and directors of the Nashville & Chattanooga Railroad Company, and their successors in office, before entering upon the discharge of their duties under the foregoing lease, and before taking possession of said North- western Railroad, shall first enter into bond, with two or more sufficient securities, in the penal sum of one hundred thousand dollars, payable to the State of Tennessee, for the faithful performance of the terms and stipulations of NASHVILLE, CHATTANOOGA e from Uws - passed by the general assembly of the state; but the said North- western Railroad shall be subject to the provisions of such law or laws which may be passed as aforesaid, as though this act had never been passed. SEC. 4. That the foregoing lease is ratified, subject to the provisions of this act, with the express reservation to the state of the right to terminate the same at any time without notice, by the act of the general assembly of the state; Provided, That should the state, or a purchaser from the state of said Nashville & Northwestern Railroad, demand possession of said road before the Nashville & Chattanooga Road has been reimbursed of all necessary and proper exj>endi- tures in operating said Northwestern Railroad from the earnings of said road, such excess of exj>enditures over earnings shall be paid by the state or said purchaser to the Nashville & Chattanooga Railroad Company. SEC. 5. That this act shall take effect from and after its pas- sage. (Acts 1869-70, ch. 21; passed December 9, 1869.) 40 DECREES AND ACTS OF TENNESSEE RELATING TO 6. Alabama & Chattanooga Railroad Company allowed to cross tracks of Nashville & Chattanooga Railroad Com- pany near Lookout Mountain, provided it keeps in repair switches, fixtures, etc., at crossings. SEC. II. Be it further enacted, That D. N. Stanton, pres- Ma survey ident, an ^ J- T. Burn, J. C. Stanton, Lewis Rice, route, etc. John Dermit, J. P. Roberson, Seth Adams, S. A. Carlton, Wm. Claflin, Robert T. Paine, Jr., W. P. Rathburn, and R. M. Patton, directors of said railroad company, or their successors in office, or a majority of them, or their chief en- gineer, whose action shall be approved by the president and a majority of the then directors of said company, are hereby authorized and empowered to survey, lay off, locate, extend, build, and construct their said railroad, commencing at or near Wauhatchie station, on the Nashville & Chattanooga Railroad, in Hamilton county, Tennessee, by the nearest practicable route to such point within the corporate limits of the city of Chat- tanooga, Tenn., as they may deem most advantageous for making connections with other roads now in operation, or that may hereafter terminate at that point; and for this purpose may locate their said road so as to cross the track of the Nash- ville & Chattanooga Railroad Company west of Lookout Moun- tain, and recross the track of said Nashville & Chattanooga Railroad east of said Lookout Mountain; Provided, however, That the Alabama & Chattanooga Railroad Company shall, at its own expense, build, erect, and keep in repair all necessary switches and fixtures at said crossings, and shall not unnecessarily hinder or delay the passage of trains upon said Nashville & Chattanooga Railroad. (Acts Tenn., 1869-70, ch. 53, sec. 2.) The Alabama Great Southern Railroad was organized November 30, 1877, and acquired the property of the Alabama & Chattanooga Railroad, sold under foreclosure January 22, 1877. 7. Nashville, Murfreesboro, Shelbyville, and Winchester au- thorized to raise money or issue bonds to pay for stock in Nashville & Chattanooga Railroad Company. WHEREAS, The town of Nashville, by its board of mayor and aldermen, has authorized the mayor of said town to subscribe NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 41 for 20,000 shares of the capital stock of the Nashville & Chat- tanooga Railroad, which subscription has not, however, yet in fact been made; and, WHEREAS, It is necessary that further power should be ex- tended to the corjxn'ate authorities of said town, to Pretmbie. enable them to pay the calls upon said stock; therefore, SECTION 1. Be it enacted by the General Assembly of the State of Tennwwe, That the town of Nashville IK?, and is hereby, authorized, through its mayor and aldermen, and by the sub- scription of its mayor on the books of the Nashville Nashville & Chattanooga Railroad Company, to subscril>e for ock subscrlt twenty thousand shares of the capital stock of said company. SEC. 2. Be it enacted, That the mayor and aldermen of Nashville be, and are hereby, authorized to raise money on loan, by pledging the faith of the corporation, by pledg- M borrow ing a portion of its taxes, by mortgage, or other- raonc y- wise, as to them may soem best, to an amount not exceeding what may be demanded for the calls upon the stock aforesaid, and said loan may be created for such length of time, and pay- able in such manner, as to the said mayor and aldermen may be deemed best. SEC. 3. Be it enacted, That the said mayor and aldermen be, and they are hereby, authorized, if to them it shall seem best, instead of making a loan as aforesaid for the whole M is$ue amount of said calls, or any part thereof, to issue bone issued shall be in sums not less than five hundred dollars each; D^^I,,,, that they shall not bear a greater rate of interest of bonds - than six per centum per annum, and shall not be jwyable at a greater distance of time from their respective dates than thirty years. SEC. 5. Be it enacted, That a like privilege of subscription, and a like power to issue bonds and to raise money on loan, be 42 DECREES AND ACTS OF TENNESSEE RELATING TO Murfreesboro. extended to the following incorporated towns, to wit: Winchester. Murfreesboro, Shelby ville, and Winchester; Pro- vided, That the mayor and aldermen of the towns of Murfrees- boro, Shelbyville, and Winchester may issue bonds for their stock, or, in negotiating loans under this act, of a denomination as low as one hundred dollars. (Acts Tenn., 1847-8, ch. 26; passed December 9, 1847.) Shelbyville subscription. The town of Shelbyville never subscribed for a share of stock in this company. It is true that, on December 8, 1848, the board of mayor and aldermen did make a subscription for the town of 50.000 of the stock, but, on December 30, 1848, this ordinance was repealed, and nothing- more was ever done. Nor did the town sub- scribe in building the branch to Shelbyville. Nashville subscription. The proposition to subscribe or not was submitted to the people of Nashville, July 3, 1847, and resulted in a vote of three to one in favor of subscribing- $500.000, upon condition that the calls be paid in the bonds of the city not having longer time to run than thirty years. This was done. See city ordinances passed July 9, 1847, and December 23, 1847. Murfreesboro subscription. The city of Murfreesboro subscribed for $30,000 of the stock. Winchester subscription. The town of Winchester never subscribed. 8. Charter, sec. 33, construed by act; authority also given in this instance to borrow money and mortgage road. WHEREAS, The charter of the Nashville & Chattanooga Rail- road Company, passed on December 11, 1845, by its thirty- Additional third section provides that the said company shall powers. possess such additional powers as may be convenient for the due and successful execution of the powers granted in said charter; and, WHEREAS, The power to borrow money upon such terms as Borrow ma y ^ e P reser ibed by the stockholders at a general money. meeting, to be expended for the more thoroughly equipping said road, repairing the roadbed, and for such other purposes as may be deemed expedient by said stockholders, in- cluded in the powers granted by said thirty-third section; and, WHEREAS, It is intended by the following act merely to con- Construction strue the powers as granted by said charter, and of power. no j. ^ en ] ar g e or modify the same; therefore, SECTION 1. J3e it enacted by the General Assembly of the State of Tennessee, That the Nashville & Chattanooga Railroad NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 43 Company l>e, and it is hereby, jxjrmitterrow Permitted to a sum not exceeding three millions of dollars, and $3.000.000. in order to secure the payment of the same, the said company is authorized to make and issue its lx>nds in sums of one thou- sand dollars each for the sum aforesaid, payable in not less than five nor more than twenty years from date, in gold or silver coin, with coupons attached for the payment of interest semi- annually, at a rate of interest to be agreed ii|x>n, Rgte of not exceeding the legal rate of interest at the place tnterest - where payable. SEC. 2. That in order more perfectly to secure the payment of the principal and interest of the bonds to be issued as aforesaid, the said company is hereby permitted to execute a second mortgage on its charter, road, works, rolling stock, and depots, with all the stip- Mortg.ge. ulations and conditions necessary to accomplish the intent and meaning of this act, and the manner in which said bonds and mortgage shall be made and executed shall 1x3 pre- scribed by the board of directors of said company; that noth- ing herein contained shall be construed as to interfere with prior liens, especially the lien of the state; and that this act shall take effect from and after its passage, the public welfare requiring it. (Acts Tenn., 1870, ch. 14; approved June 13, 1870.) It is not the province of the legislature to expound the meaning- of previously existing laws. They can say what the law shall l>e, but are not authorized to say what it is. 2 Hum. (Tenn.), 304: 1 Itax. (Tenn.), 319. The above act does not make the rig-ht to mortgage a part of the char- ter of the company, but was enacted for this occasion only. 9. State aid to Nashville & Chattanooga Railroad Company. Many acts of the legislature of the State of Tennessee were passed authorizing state aid to be granted to the Nashville & Chattanooga Railroad Company for the purpose of building and equipping its road. The state aid was given by having the governor to indorse the bonds of the road on lx?half of the state. These acts are quite lengthy, and are so seldom required that for the purpose of economy it is deemed not advisable to insert them in full in this compilation, but simply to refer to 44 DECREES AND ACTS OF TENNESSEE RELATING TO the act and page where they can be found, if desired. Below will be found all acts relating to this subject, set out in the order of their passage: Acts 1847-8, ch. 169, p. 272, governor authorized to indorse and guarantee bonds of the Nashville & Chattanooga Railroad Company to any amount not exceeding the sum of $500,000. For terms and conditions, see act. Acts 1851-2, ch. 151, sec. 18, bonds authorized to be issued to, when twenty-five miles of road completed in addition to eighty miles specified in Acts 1847-8, ch. 169, sec. 2, to the amount of $175,000, and so on for each section of twenty-five miles. For conditions, see act itself. Acts 1853-4, ch. 131, sec. 6, governor authorized to indorse and guarantee bonds of Nashville & Chattanooga Railroad Company to amount not exceeding $650,000. For conditions, see act. Acts 1855-6, ch. 120, governor authorized to indorse and guarantee $150,000 of the bonds of the Nashville & Chatta- nooga Railroad Company. Acts 1855-6, ch. 120, governor authorized to indorse and guarantee bonds to the amount of $150,000 to the Nash- ville & Chattanooga Railroad Company to complete branch to the East Tennessee & Georgia Railroad. Acts 1855-6, ch. 35, governor authorized to indorse and guarantee bonds of the Nashville & Chattanooga Railroad Company to the amount of $95,000. For terms and conditions, see act. Acts 1859-60, ch. 7, state aid to the extent of a sum not exceeding $150,000 transferred from the Memphis & Charleston Railroad Company to the Nashville & Chattanooga Railroad Company, to be applied exclusively to that part of the road, etc., between Stevenson and Chattanooga. For con- ditions, see act itself. Acts 1865-6, ch. 14, p. 23, governor authorized to issue bonds to the amount of $125,000 to the Nashville & Chat- tanooga Railroad Company for the completion of the branch road from Bridgeport, Ala., to Jasper, Tenn. N \>ll\ II.I.E. CHATTANOOGA A ST. LOUIS RAILWAY. 45 10. Internal improvement acts. The legislature of the State of Tennessee has passed many acts under the terms of which the various railways in the state could secure state aid for the purpose of building ami equipping their roads. These acts are very numerous and lengthy, and it is a rare exception when they are now needed. For these ira>ons it is deemed advisable not to insert them in full in this compilation, but simply to give the acts and pages where they can l>e found should occasion ever require. Immediately following will be found all the acts in relation thereto, set out in the order of their passage: Acts 1851-2, ch. 151, passed February 11, 1852; Acts 1851-2, ch. 285, passed February 28, 1853; Acts 1853-4, ch. 131, passed Feb- ruary 8, 1854; Acts 1853-4, ch. 132, passed December 16, 1853; Acts 1853-4, ch. 225, passed February 17, 1854; Acts 1855-6, ch. 82, p. 92, passed January 19, 1856; Acts 1855-6, ch. 228, passed January 30, 1856; Acts 1857-8, ch. 20, passed January 9, 1858; Acts 1859-60, ch. 74; Acts 1865-6, ch. 14, p. 33, passed January 18, 1866; Acts 1865-6, ch. 31, passed February 27, 1866; Acts 1865-6, ch. 9, passed February 23, 1865; Acts 1865-6, ch. 24, passed January 18, 1866; Acts 1865-6, ch. 95, passed January 26, 1866; Acts 1866-7, ch. 2, passed November 19, 1866; Acts 1866-7, ch. 22, passed Feb- ruary, 18, 1867; Acts 1868-9, ch. 19, passed January 26, 1869. RESOLUTIONS OF TENNESSEE RELATING TO NASHVILLE & CHATTANOOGA RAILROAD COMPANY. 1. Resolution of Tennessee asking Georgia for right of way for Nashville & Chattanooga Railroad Company. WHEREAS, The general assembly of the State of Tennessee has passed an act incorporating a company to construct a rail- road from Nashville to Chattanooga, designed to connect at the latter place with the great line of railroad extending to the Southern Atlantic coast; and, WHEREAS, From partial reconnoissances and surveys which have been made, the route l>elieved to IK? the most favorable for the road crosses the southern boundary line of the state, and 46 RESOLUTIONS OF TENNESSEE RELATING TO for some distance passes through the territory of the State of Georgia; and, WHEREAS, The construction of the Nashville & Chattanooga Railroad in a great degree depends upon the early completion by Georgia of her state road to the Tennessee River, which would bring that work within the territory and jurisdiction of Tennessee, the right and privilege of doing which has been granted to Georgia by this state; and, WHEREAS, The accomplishment of both of these great works of internal improvement, believed to be alike beneficial to both states, may, in a great degree, depend upon the reciprocal legis- lation of the two states, by which the rights and privileges to be enjoyed and exercised by each within the jurisdiction of the other may be placed upon a just and permanent basis; therefore, Resolved by the General Assembly of the State of Tennessee, That the legislature of the State of Georgia be requested to grant to the Nashville & Chattanooga Railroad Company the privilege of surveying, locating, and constructing their road, and of establishing any necessary warehouses, depots, etc., thereon, from a point on the state line in Dade county, near the head of Running Water Creek, thence through the sai I county of Dade, by John B. Perkins, and down Lookout Valley, recrossing the state line in said valley, with such protection to the rights and property of the company, and under such re- strictions, as that legislature may deem expedient to prescribe. Resolved, That James A. Whiteside be appointed an agent to proceed to the Georgia legislature, now in session, to solicit the right of way hereinbefore indicated for the Nashville & Chattanooga Railroad, and confer with the authorities of that state upon the subject of the reciprocal legislation which should be adopted by the two states to make effectual the rights and privileges conferred by them respectively. (Acts Tenn., 1847-8, Resolution No. 2; passed November 29, 1847.) 2. Resolutions of Tennessee asking Alabama for the right of way for the Nashville & Chattanooga Railroad. WHEREAS, The general assembly of the State of Tennessee has passed an act incorporating a company to construct a rail- NASH VI 1. 1, K, CHATTANOOGA A ST. LOUIS RAILWAY. 47 road from Nashville, in Davidson county, to Chattanooga, in Hamilton county; and, WHEREAS, From partial examination and reconnoissanees which have been made, several different routes are presented, sup- posed to afford facilities for the location of the road, one of which crosses the state line and for a short distance passes through the territory of the State of Alabama, and it l>eing desirable to locate and establish the road upon the route most suitable for its construction, which can only be ascertained by actual survey and estimates; therefore, Resolved by the General Assembly of tie State of Tennexxee, That the legislature of the State of Alabama be requested to grant to the Nashville & Chattanooga Railroad Company the privilege of surveying, and in case they find that route most eligible, for locating and building their road and any necessary warehouses, depots, water stations, etc., from a point on the state line, in Jackson county, at or near the place where Crow Creek crosses the same, thence down the valley of said creek towards liolivar, so far as to be able to turn the spur of Cum- berland mountain, and recross the state line between said mountain and Tennessee river, with such protection to the rights conferred and such restrictions as that legislature may deem expedient to impose. Rsfolwdj That the governor of this state be requested to transmit a copy of the foregoing preamble and resolutions to the executive of the State of Alabama, with the request that he will submit the same to the legislature of that state for consid- eration. (Acts Tenn., 1845-6, Resolution No. 5; adopted December 12, 1846.) 3. Resolution allowing petition of W. C. Harding, D. H. Mc- Gavock, and Lucy McKelvey to be filed, asserting their rights for damages for land taken for right of way on Northwestern Division. WHEREAS, W. G. Harding, D. H. McCiavock, Mrs. Mc- Kelvey, and others have obtained decree in the supreme court of Tennessee, enjoining Nashville, Chattanooga & St. Ixwis Railroad from using or running trains over certain lands, occu- 48 RESOLUTIONS OF TENNESSEE RELATING TO pied by the right of way of the Nashville & Northwestern Railroad, sold by the state in the case of the State v. The Edge- field & Kentucky Railroad Company, pending in the chancery court at Nashville, to said Nashville, Chattanooga & St. Louis Railway; and, WHEREAS, The basis of these decrees for injunction was that the lien of said parties for the purchase money of these lands was prior and superior to that of the state, in said land of said railroad companies, and that they not having been made parties to said suit, had no opportunity therein to have adjudicated their right therein to the purchase money paid into court for said Nashville & Northwestern Railroad, and, not being per- mitted to sue the state, were forced to pursue their remedy by injunction against the Nashville, Chattanooga & St. Louis Rail- way, as purchasers of said railroad; and, WHEREAS, It being the intention of the legislature, in pass- ing the various acts directing the bringing of said suit for the purpose of selling of said railroad and other delinquent rail- roads, that all parties having legal claims against any of the said railroads should be made parties thereto, and have their rights therein adjudicated; now r , therefore, lie it resolved by the General Assembly of the State of Ten- nessee, That the said W. G. Harding, D. H. McGavock & Co., complainants, and Lucy McElvey, or their assigns, may pro- ceed, by petition, in said cause of the State of Tennessee v. The Edgefidd & Kentucky Railroad Co. et aL, to make themselves parties thereto, making the state a party to said petition by service of notice upon the attorney -general for the state days before the tiling of the same; and the said chancery court shall have full power to make such decree thereon as it might have made had the petitioners been parties to the original bill therein, and the fact of not having been made parties originally to said suit shall in no way affect their rights in the premises, pro- vided nothing in this resolution shall in any way affect the judgments of the parties against the Nashville, Chattanooga & St. Louis Railroad, which have been rendered in the courts heretofore. (Senate Joint Resolution, No. 20, Acts Tenn., 1877, p. 229; approved March 26.) NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 49 4. Resolution authorizing suit against Nashville & Chatta- nooga Railroad Company for state's interest as stock- holder in Nashville, Murfreesboro & Shelbyville Turnpike Company. WHEREAS, On July 19, 1848, the Nashville & Chattanooga Railroad Company, compounded, under a directory clause in its charter, with the stockholders of the Nashville, Murfreesl>oro & Shelbyville Turnpike Company, for damages to its franchise by interfering parallel lines, agreeing to pay as such damage twenty- five per cent., in amount of its capital stock, on the capital stock in said turnpike road, the state's interest as a stockholder being $66,660.66; and, WHEREAS, This twenty-five per cent, was promptly paid to the individual stockholders, but has never been paid to the state by said Nashville & Chattanooga Railroad Company; therefore, Be it resolved by the General Axuembly of the State of Ten- nessee. That the secretary of state is hereby ordered and in- structed to proceed at once, and use all lawful measures for the collection of the same, and the dividends properly lielonging thereto. (House Joint Resolution No. 60, approved March 12, 1875; Acts Tenn., 1875, p. 317.) 5. Resolution with reference to Nashville, Chattanooga & St. Louis Railway claiming exemption from taxation on Northwestern Division. WHEREAS, The comptroller states in his report to the pres- ent general assembly, pages 56 and 57, that the Knoxville & Ohio Railroad, the Mobile & Ohio Railroad, the Nashville, Chattanooga & St. Louis Railroad (Northwestern Division) are exempt from taxation; and, WHEREAS, The said roads have a grand total of three hun- dred and forty-rive miles of railroad, and that the assessed value of said roads amounts to rive million sixty-seven thousand three hundred and ninety-rive dollars; and, WHEREAS, The state is in need of all the revenue she can get; therefore, Be it resolved hy the home of representative*^ That the rail- road committee shall inquire whether said companies are ex- 4 50 CHANCERY COURT AMENDMENT TO CHARTER empt from taxation, and, if so, when said exemption expires, and make their report to this house. (House Resolution No. 32, Acts Tenn., 1887.) CHANCERY COURT AMENDMENT TO CHARTER. Decree amending charter of Nashville & Chattanooga Rail- road Company at Nashville, Tenn. This cause came on to be heard this thirteenth day of May, 1872, before the Hon. E. H. East, chancellor, presiding in the chancery court for the county of Davidson, State of Tennessee, upon the petition of the Nashville & Chattanooga Railroad Company, incorporated by the general assembly of Tennessee, and of its directors, E. W. Cole, Thomas C. Whitesides, God- frey M. Fogg, John W. Childress, John Frizzell, Jackson Pryor, W. S. Huggins, John F. Anderson, John B. Hawkins, A. E. Patton, Thomas Lipscomb, Edward L. Jordan, V. K. Stevenson, Ben May, John P. King, John M. Bass, Thomas H. Caldwell, and W. Bosson, the last two being the state di- rectors: When it appeared to the court that, on March 9, 1872, the petition in this cause was filed, and which has been enrolled in book No. 1, page 283, and that, by said petition, the court is asked to pronounce a decree amending the charter of said com- pany as specified in said petition; that, on March 11, 1872, the clerk and master of this court caused publication to be made for thirty days in the Republican Banner, a newspaper pub- lished in the city of Nashville, Tennessee, which publication was in the words and figures following: No. 7108. IN CHANCERY AT NASHVILLE. STATE OF TENNESSEE, OFFICE CLERK AND MASTER CHANCERY COURT. NASHVILLE, March 11, 1872. WHEREAS, The Nashville & Chattanooga Railroad Company and its directors, viz. : E. W. Cole, Thos. C. Whitesides, G. M. Fogg, John W. Childress, John Frizzell, Jackson Pryor, NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 51 W. S. Huggins, John F. Anderson, Jno. B. Hawkins, A. E. Patton, Thos. Lipseomb, Edward L. Jordan, V. K. Stevenson, Ben May, Jno. P. King, Jno. M. Bass, Thos. H. Caldwell, and W. Bosson (the last two l>eing state directors), tiled their peti- tion in the chancery court at Nashville, on the ninth of March, 1872, praying that the charter of said Nashville & Chattanooga Railroad be amended by said court; that a decree be pro- nounced granting said amendments, which are as follows: 1. May lease or purchase other railways and issue bonds. That the board of directors of said company, two-thirds of the whole number of directors agreeing thereto, shall have the power and authority to acquire for said company by purchase or lease, the property and franchises of any railroad, as well as the property and franchises of any other railroad company op- erating or proposing to construct a railroad which connects with the Nashville & Chattanooga Railroad, as well as the property and franchises of any other railroad company, the purchase or lease of which may, in the opinion of the board of directors, promote the interest of the Nashville & Chattanooga Railroad Company, and said board of directors may cause to be issued the bond of the said Nashville & Chattanooga Railroad Com- pany to the amount necessary, from time to time, to accomplish. For validity of this amendment, as well as those following 1 in this de- cree, see discussion herein as to chancery court amendments; refer to index. 2. May subscribe to stock in any incorporated company and issue bonds. That the board of directors of said company, two-thirds of the whole number of directors agreeing thereto, may, for and on behalf of said company, subscribe to the capital stock of any other incor|>orated company to such an amount as may be agreed upon by said board of directors, and may cause to be issued the bonds of said company to the amount necessary, from time to time, to accomplish this purpose. 3. May indorse or guarantee bonds of other companies. That the board of directors of said company, two-thirds of the whole number of said directors agreeing thereto, may, for 52 CHANCERY COURT AMENDMENT TO CHARTER and on behalf of said company, and to be indorsed and guar- anteed, the bonds issued by the other incorporated companies, to such an amount as may be agreed upon by said board of directors, whenever it may be, in the opinion of the board of directors, to promote the interest of said Nashville & Chatta- nooga Railroad Company. 4. May increase capital, how. That the board of directors of said railroad company, two- thirds of the whole number agreeing thereto, may increase the capital stock of said company to such an amount as may be determined by said board of directors. 5. Manner of voting ; amending section 20 of original charter. That stockholders may vote in person or by proxy, and in the election of directors, and in voting on all questions which may come before a meeting of the stockholders, if so demanded by five stockholders, the vote shall be taken according to the following scale: The owner of one or more shares, up to and including four, shall be entitled to one vote for each share; the owner of a greater number of shares than four shall be entitled to one vote for each four shares over and above four. That the provisions of the said act of December 11, 1845, ch. 1, inconsistent with these proposed alterations and amend- ments be abrogated. It is therefore ordered that all persons who desire to resist the granting of said amendments to said charter, as above in- dicated, or to the prayer of said petition, do enter their appear- ance herein on or before the third Monday of the next term of said court, to be held on the first Monday in April next, 1872, and then and there show cause, if any they have, or can, why the prayer of said petition should not be granted and said charter amended, and that a copy of this order be published for thirty days in the Nashville Republican Banner. A copy attest: NATHANIEL BAXTER, JR., Clerk and Master. FOGG, WHITESIDES & FRIZZELL, Solicitors for Petitioner. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 53 It also appearing to the court that by n act of the general assembly of the State of Tennessee, ch. 1, December 11, 1^45, entitled, "An act to incorporate the Nashvilb & Chattanooga Railroad Company," and the acts amendatory thereof, to wit: Ch. 70, passed January 21, 1S4H, entitled, "An act to amend the charter of the Nashville <&. Chattanooga Railroad Company," and ch. 266, passed January 19, 1850, entitled, "An act to amend the charter of the Nashville & Chattanooga Railroad Company," the said Nashville & Chattanooga Railroad Com- pany was incorporated for the purpose of establishing a com- munication by railroad between Nashville & Chattanooga, in the State of Tennessee; that by said acts of assembly there were con- ferred upon said company the powers and privileges incident and necessary to the transaction of the business for which it was in- corporated; that under the authority aforesaid said company has constructed and is now operating a railroad from Nashville to Chattanooga, its principal office being at Nashville; that the persons named as directors in said petition constitute the presi- dent and directors of said company; that in pursuance of the provisions of sec. 34 of said act of December 11, 1845, the said president and directors unanimously petition that the charter of said company may be amended in the manner mentioned in the petition filed in this cause. It also appeared that no person appeared to show cause why the prayer of said petition should not be granted. The court being satisfied that the prayer of said petition is legitimate and proper, and deeming the same necessary and not inconsistent with the statutory provisions on this subject, nor the general laws of the state, nor hurtful to the public good, doth order, adjudge, and decree, in pursuance of the j)owers vested in courts of chancery by virtue of paragraph 23, sec. 15, of the acts of the general assembly of Tennessee, ch. 54, ap- proved January 30, 1871, entitled "An act to authorixe the chancery courts in this state to grant letters of incor|M>ration," that the acts of the general assembly aforesaid incorporating the Nashville & Chattanooga Railroad Company, passed De- cember 11, 1845, be altered, amended, and changed in the 54 CHANCERY COURT AMENDMENT TO CHARTER manner following, as prayed for in the petition in this cause- that is to say: 1. That the board of directors of said company, two-thirds of the whole number of said directors agreeing thereto, shall have the power and authority to acquire of said company, by purchase or lease, the property and franchises of any railroad company operating or proposing to construct a railroad which connects with the Nashville & Chattanooga Railroad, as well as the property and franchises of any other railroad company, the purchase or lease of which may, in the opinion of the board of directors, promote the interest of the Nashville & Chattanooga Railroad Company, and said board of directors may cause to be issued the bonds of the said Nashville & Chattanooga Railroad Company to the amount necessary, from time to time, to ac- complish this purpose. 2. That the board of directors of said company, two-thirds of the whole number of directors agreeing thereto, may, for and on behalf of said company, subscribe to the capital stock of any other incorporated company, to such an amount as may be agreed upon by said board of directors, and may cause to be issued the bonds of said company to the amount necessary, from time to time, to accomplish this purpose. 3. That the board of directors of said company, two-thirds of the whole number of directors agreeing thereto, may, for and on behalf of said company, cause to be indorsed and guar- anteed the bonds issued by other incorporated companies to such an amount as may be agreed upon by said board of direct- ors whenever it may, in the opinion of the board of directors, promote the interest of the Nashville & Chattanooga Railroad Company. 4. That the board of directors of said company, two-thirds of the whole number of directors agreeing thereto, may increase the capital stock of said company to such an amount as may be determined by said board of directors. 5. The stockholders may vote in person or by proxy, and in the election of directors, and in voting on all questions which mav come before a meeting of the stockholders, the vote shall NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 55 he taken according to the following scale: The owner of one or more shares, up to and including four, shall l>e entitled to one vote for each share; the owner of a greater num tar of shares than four shall be entitled to one vote for each four shares over and above four. It is further ordered that the Nashville & Chattanooga Rail- road Company pay the costs of this proceeding, for which ex- ecution may issue, and upon the payment of the same the clerk and master will issue a certified copy of this decree for regis- tration, i Entered in minute book "V,"" pp. 174-178, at Nashville, Tenn.) For discussion of the validity of this decree, see herein. Refer to index. Other decrees. There are several other decrees in this com- pilation, but as they simply vext title to particular roads in this company they are inserted in the chapter relating to those roads or branches. ACTS OF ALABAMA RELATING TO NASHVILLE & CHATTANOOGA RAILROAD COMPANY. 1. Alabama grants right of way to Nashville & Chattanooga Railroad Company through Jackson county, with rights and privileges of Tennessee charter; how to be taxed. SECTION 1. Be it enacted by the Senate and llint on it in the county of Jackson, aforesaid. 56 ACTS OF ALABAMA RELATING TO SEC. 2. [This section related to the erection of the bridge across the Tennessee River, and as it is inserted in another place as a note to Acts Ala., 1855-6, p. 11, following, allowing the bridge to be erected, it is here omitted.] SEC. 3. And be it farther enacted. That nothing contained in this act shall prevent the State of Alabama from levying and collecting such rate of tax on the property of said company within this state, after the completion of their road, as shall, by the general assembly at the time, be assessed on the prop- erty of other railroad companies in this state; Provided, That, in assessing any tax, the value of that part of the road or other property of the company lying in this state shall not be esti- HOW as- mated at more than the amount of the capital stock sessed. o f ^ e CO mpany invested in their purchase and con- struction, to be ascertained by the statement, on oath, of the president or engineer of the company, nor shall any tax what- soever be levied on the bridge across Tennessee river, provided the same is not used for purposes of common travel, but only for the accommodation of the railroad. (Acts Ala., 18-19-50, No. 123; approved January 21, 1850.) This act was amended by Acts Ala., 1859-60, No. 21(5, so as to allow the company to build a branch road from a point on its line at or near Bridgeport, in Jackson county, to the Tennessee state line, in a direc- tion to Jasper, with all the rights, powers, and privileges of the main line. See act itself further on. 2. Resolution of Alabama in regard to right of way of Nash- ville & Chattanooga Railroad through Jackson county. Be it enacted by the Senate and Home of Representatives of the State of Alabama in General Assembly convened, That the Chattanooga Railroad Company be, and they are hereby, au- thorized to construct their road through the northern portion of Jackson county, in this state, subject to such rules, regula- tions, and restrictions, in regard to the interest and claim of our citizens, as are now imposed by law upon the Montgomery & West Point Railroad Company. (Acts Ala., 1845-6; ap- proved February 4, 1846.) This resolution was never acted upon, and the legislature of Alabama subsequently passed another and more liberal act. which was accepted, and the road built under its provisions. See Acts Ala.. 1849-50, No. 123, approved Jantmry 21. 1850, herein, for provisions. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 57 3. Bridge over Tennessee River allowed to be constructed by Alabama legislature, how. WHEREAS, A considerable portion of the bridge authorized by the act aforesaid has recently been destroyed by fire; and, WHEREAS, The said railroad company, in erecting their bridge, constructed a drawbridge, which remains in the |>ortion not consumed by the recent burning; therefore, SECTION 1. Be it enacted by the Senate and ILnwe of Rejtre- xi- illative* of the State of Alabama in General Assembly Cfm- vened, That the aforesaid act be so amended that the said Nashville & Chattanooga Railroad Company shall not be re- quired to build any part of their bridge thirty feet, or at any other particular elevation, above extreme high water mark; provided, They keep and maintain a good draw or revolving bridge opening to a width sufficient to allow the free passage of steamboats and other water crafts, and so as, when open, to leave a clear space between the piers, at the draw, of at least >i.\ty feet. (Acts Alabama, 1855-56, p. 11; approved Jan- uary 17, 1856.) Previous to this time, the legislature had passed an act requiring the bridge to be constructed at least thirty feet above extreme high water, between the two piers next to the west bank, or any two piers the com- pany might deem best; the space between the piers so selected, however, not to be less than one hundred and tifty feet. (Acts Alabama. 1849-50, No. 123, sec. 2; approved January 21, 1850.) Recently, however, the legislature of Alabama has passed another act, again requiring the bridge to be built at least thirty feet above ex- treme high water, between the two piers next to the west bank, or anj' two piers that the company may deem best, and that the space between the two piers so selected shall be at least one hundred and fifty feet. (Acts Alabama, 1888-89, p. 443; approved February 19. 1889.) This act. however, is inoperative and void, as against the \vxtcd rights of the com- pany. In addition, it is inoperative, as congress, bj- acts 1888 and 1890. has taken charge of bridges over navigable streams. See discussion in notes to sec. 22 of charter. 4. Jasper branch, from Bridgeport to state line, authorized to be constructed in Alabama with rights, powers, and priv- ileges of main line. SECTION 1. That the act granting the right of way to the Nashville &. Chattanooga Railroad Company through Jackson county, and the privilege of constructing a bridge across Ten- nessee River, in said county (approved January 21, 1850), be 58 ACTS OF ALABAMA RELATING TO so amended that the Nashville & Chattanooga Railroad Com- pany shall have the right to construct and operate a branch of their road from a point on the line of their road at or near Bridgeport, in Jackson county, to the Tennessee state line, in a direction to Jasper, Tenn., with all the rights, powers, and privileges pertaining to the main line, and subject to the same liabilities and restrictions. (Acts Ala. , 1859-60, No. 216.) 5. Ponds along right of way in Alabama required to be drained. SECTION 1. Be it enacted by the Senate and House of Repre- sentatives of the State of Alabama, in General Assembly con- vened. That the Nashville & Chattanooga Railroad Company are hereby required to drain all the ponds on either side of said road, so far as said road is embraced in the limits of the State of Alabama, that have been, or may hereafter be, created by the construction of road. SEC. 2. Be it further enacted, That the said railroad com- pany are hereby allowed one year from the approval of this act to comply with the provisions of sec. 1. SEC. 3. Be it further enacted, That for every failure of said railroad company to remove or drain any pond along the line of the same, it shall be liable to a suit for damages Damages. , . , at the instance ot any person who is or may be damaged by such failure, and that where the damage claimed is less than fifty dollars the suit may be instituted before any justice of the peace within the beat where said pond is or may be located; and that where the damages claimed exceed fifty dol- lars, suit therefor may be instituted in the circuit court where the cause of said damage has or may originate. SEC. 4. Be it farther enacted, That the rules, regulations, and law of said justices and circuit court, as appli- cable to other suits, shall apply to suits instituted under the provisions of this act, unless they conflict with some of its provisions. (Acts Ala., 1859-60, p. 291; approved December 9, 1859.) NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. ."'. 6. Right of way of Nashville & Chattanooga Railroad Com- pany through Jackson county, Alabama, again provided for, as well as Huntsville & Elora Railroad; how Nash- ville & Chattanooga Road taxed. S FICTION 1. Re it enacted l>y the General Assembly of Ala- hiiinii, Tluit Jin act entitled "An act granting the right of way to the Nashville & Chattanooga Railroad Company Amendingact through Jackson county, and the privilege of con- of * structing a bridge across the Tennessee river in said county, approved January 21, 1850, be, and the same is hereby, amended so as to read as follows: SECTION 1. That the Nashville & Chattanooga Railroad Com- pany be, and they are hereby, authorized to construct their road through the northern portion of Jackson county, in this state, and that they shall have and enjoy all the other roads . . ... , . ... may connect rights, privileges, and immunities, and be subject with. to such restrictions, as are granted to and imposed upon said company by the act incorporating the same, as far as said rail- road lies in the county of Jackson, on the express condition, however, that any railroad company now chartered, or which may hereafter be chartered, in this state, shall have the right to connect their road directly with the said Nashville & Chattanooga Railroad at any point on it in the county of Jackson aforesaid. SEC. 2. And be it further enacted, That said company shall have the privilege of constructing a bridge for their road across the Tennessee river; and, for the purpose of avoid- Bridge across . , f . ..i .^ ,. , i 11 I the Tennes- ing any interference with its navigation, it shall be see river. the duty of the company to build the bridge at least thirty feet above extreme high water, l>etween the two piers next to the west bank, or any two piers that the company may deem l>est, and the space between the two piers so selected shall be at least one hundred and fifty feet, so as to afford free and safe passage for boats of all sixes. SEC. 3. And h< It further enacted, That nothing contained in this act shall prevent the State of Alabama from levying and collecting such rate of tax on the projwrty of said Ttxon prop . company within this state, after the completion of ef tyofroad. 60 ACTS OF ALABAMA RELATING TO their road, as shall by the general assembly at the time be as- sessed on the property of other railroad companies in this state; Provided, That in assessing any tax the value of that part of the road or other property of the company lying in this state shall not be estimated at more than the amount of the capital stock of the company invested in their purchase and construc- tion, to be ascertained by the statement, on oath, of the presi- dent or engineers of the company; nor shall any tax whatso- ever be levied on the bridge across the Tennessee River, pro- vided the same is not used for purposes of common travel, but only for the accommodation of the railroad. SEC. 4. WHEREAS, The Nashville, Chattanooga & St. Louis Railway, formerly the Nashville & Chattanooga Railroad Corn- Rights in Mad- P an ^ r ' nas constructed a road from Elora, in the ison county. g tete o f Tennessee, to Huntsville, in the county of Madison, State of Alabama; therefore, Be it further enacted by the General Assembly of Alabama, That said Nashville, Chattanooga & St. Louis Railway shall have and enjoy all the rights, privileges, and immunities granted in sec. 1 of this act, so far as said Nashville, Chatta- nooga & St. Louis Railway lies within the county of Madison. (Acts Ala., 1888-9, p. 443; approved February 19, 1889.) Sec. 2 of this act is void as against the vested rights of the company. In addition, it is inoperative, as congress now has charge of navigable streams, under Acts 1888-1890. See sec. 22 of charter of Nashville & Chattanooga Railroad Company, herein. 7. Nashville, Chattanooga & St. Louis Railway allowed to build road or branch through counties of Madison, Marshall, and Etowah, to Attalla or Gadsden, Ala., with rights, privileges, etc., of Tennessee charter. SECTION 1. Be it enacted by the General Assembly of Ala- bama, That the Nashville, Chattanooga & St. Louis Railway, a corporation chartered under the laws of the State of Tennessee, be, and the same is hereby, authorized and empowered to con- struct, operate, and maintain its road, or a branch thereof, in and through the counties of Madison, Marshall, and Etowah, in the State of Alabama, beginning at Huntsville, in Madison county, and extending thence through the counties of Madison, NASHVILLE, CHATTANOOOA 4 ST. LOUIS RAILWAY. 61 Marshall, and Etowah, to Attalla or Gadsden in said Etowah county. SEC. 2. Be it further enacted, That the said Nashville, Chat- tanooga & St. Louis Railway shall have and enjoy all the rights, privileges, and immunities not in conflict with the constitution of the State of Alabama, and he subject to such restrictions as are granted to and imposed upon said Nashville, Chattanooga & St. Louis Railway by the act or acts chartering the same, so * / far as said railway lies in the counties of Madison, Marshall, and Etowah, or may hereafter be constructed therein. (Acts Ala., 1890-91, p. 154; approved December 10, 1890.) ACTS OF GEORGIA RELATING TO THE NASH- VILLE & CHATTANOOGA RAILROAD COMPANY. 1. Georgia grants right of way to Nashville & Chattanooga Railroad Company through Dade county, with rights, privileges, etc., of original charter and of Hiwassee Rail- road Company. SECTION 1. He it enacted by the Senate and Howe of Repre- x.'/ttntivex of the State of Georgia, in General Assembly wet, niie entitled to all the privileges, rights, and immu- nities, and be subject to the same restrictions, as far as they 62 ACTS OF GEORGIA RELATING TO other are a Ppli ca ' J l e ^ as ai ' e granted, made, and prescribed rights, etc. f or ^he fo ene fit, government, and direction of the Hiwassee Railroad Company, by an act of the legislature of Tennessee incorporating said Hiwassee Railroad Company. SEC. 3. And be it further enacted by the authority aforemid, That the Nashville & Chattanooga Railroad Company shall have and enjoy all the rights, privileges, and immunities, and be subject to the same restrictions as are granted to and imposed upon said company by the act of the general assembly of Tennessee incorporating the same, so far as said railroad lies in the county of Dade; Provided, That any addi- tional rights and privileges hereafter conferred upon this road by the legislature of Tennessee shall be conferred upon the Western & Atlantic Railroad, of the State of Georgia, by the legislature of Tennessee. (Acts Ga. , 1847-8, p. 172; approved December 29, 1847.) 1. It will be noticed that by sec. 3 of the above act. all the rights, privileges, immunities, etc., of the original Nashville & Chattanooga Railroad Company's charter was conferred upon the company, by the State of Georgia, through Dade county, provided that any additional rights and privileges thereafter conferred upon the company should also be conferred upon the Western & Atlantic Railroad. This was virtually done by Acts Tenn., 1847-8, ch. 195. p. 330, which provided: " That all the rights, privileges, and immunities, with the same restrictions which are given and granted to the Nashville & Chattanooga Railroad Company by the acts of the general assembly of this state incorporating said com- pany, so far as they are applicable, are hereby given to and conferred upon the State of Georgia in the construction of that part of the Western & Atlantic Railroad lying in Hamilton county, Tenn.'' See charter of Nashville & Chattanooga Railroad in ch. 1 herein. See also resolutions in regard to Western & Atlantic Railroad; refer to index. 2. It will also be noticed that the above act of Georgia, in addition, confers upon the Nashville & Chattanooga Railroad Company all the privileges, rights, immunities, etc., of the Hlwnssee Railroad Company. (See Hiwassee charter, below.) This company was chartered by the Acts of Tenn.. 1835-6, p. 23, and is contained in a very rare volume enti- tled ' Local Acts of Tennessee"' of that session. This book will hardly be found in any of the libraries of the state, save at the state capitol. It was discovered there by accident. The charter of the Hiwassee Railroad Company is set out be- low in order that the full rights, powers, etc., of the Nashville, Chattanooga & St. Louis Railway in Georgia may be known, as it, together with the charter of the Nashville & Chattanooga Railroad Company, jointly determined the matter: NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 88 Charter of Hiwassee Railroad Company. [Acts Tenn. (local), 183.V-0, p. 23.] SKCTION i. Commissioners, name, general powers, route. Be it enacted Ity the General A*m utbly of the State of Tt-nnefixee, That William Park, Solomon D. Jacobs, Kbene/er Alexander, William B. A. Ramsay, Drury P. Armstrong, of Knoxville; Henry Liggett, William S. McEwen, - - Hamilton, Joseph Bird, of Kingston; Fidelio S. Hunt, Hugh Graham, James Dickinson, Joseph Jones, William Houston, of Tazewell; Nich- olas Fain, William B. Mitchell, and Clinton Armstrong, of Kogersville; William Dickson, George Jones, and Valentine Sevier, of Greeneville; John Blair, Seth J. W. Lucky, and John G. Eason, of Jonesboro; Robert H. Hynds, John Roper, William Moore, and Joseph Hamilton, Jr., of Dandridge; Micajah C. Rogers, .James P. H. Porter, John Cannon, of Se- vierville; AVilliam Wallace, John Sample, J. II. Gillespie, William A. Spencer, of Maryville: James A. Coffin, James Green way, Samuel Bicknell, William M. Stakeey, and (iuilford Cannon, of Madisonville; Matthew Nelson, Jacob Pearson, Robert Cleveland, Hugh Smith, and William Montgomery, of Philadelphia; Solomon S. Bogart, Onslow G. Murrell, John W. M. Brazeale, John Crawford, and Thomas Crutchtield, of Athens; John L. McCarty, Archibald K. Turk, Ezekiel Bates, of Calhoun; John White, Hamilton Bradford, Henry Bradford, of Columbus; John Locke, Richard \N aterhouse, Thomas McCally, Robert N. Gillespie, of Washington; Samuel L. Story, John Bridgeman, and Samuel Robertson, of Pikeville; John Kelly, James Francis, and William Rice, of Jasper; Madison Rawlings, William S. Smith, and Samuel Igone, of Dallas; William Grant, William McMillin, ami Henry Price, of Bradley county, be, and are hereby, appointed commission- ers, under the direction of a majority of whom subscriptions may be received to the capital stock of the Hiwassee Railroad Company, hereby incorporated: which commissioners, together with such other j>ersons as now are or may hereafter become associated with thorn, their successors and assigns, shall constitute a body corporate, and they are hereby 64: ACTS OF GEORGIA RELATING TO incorporated under the name aforesaid, and in that name they shall have perpetual succession, may sue and be sued, plead and be impleaded, and shall possess and enjoy all the rights, priv- cenerai ileges, and immunities, with power to make such powers. by-laws, ordinances, rules, and regulations not inconsistent with the laws of this state and the United States, as shall be necessary to the well-ordering and conducting the affairs of said company, and may, by their by-laws, declare vacant the place of any director for nonattendance or neglect of duty; and the said company shall be capable in law of pur- chasing, accepting, selling, leasing, and conveying estates real, personal, and n.ixed to the end and for the purpose of facil- itating the intercourse and transportation from Knoxville, East Tennessee, through the Hiwassee district, to a point on the southern boundary of Tennessee, to be designated by the commissioners hereinafter mentioned as the mpst practicable route to intersect the contemplated railroad from Augusta to Memphis. 1. The name of the company was subsequently changed by Acts Tenn., 1847-8, ch. 169. p. 272, sec. 3, to the East Tennessee & Georgia Railroad Company. 2. See Resolution No. 6, Acts Tenn., 1851-2, p. 706, which requests Georgia to protect the interests of this road, and keep the compact en- tered into between the two states in regard to this road and the Western & Atlantic Railroad. The resolution may also be found herein among the acts of Tennessee relating to the Western & Atlantic. SEC. 2. Capital, value of shares, incorporation.^ it en- acted, That the capital stock of said company shall be six hun- dred thousand dollars, in shares of one hundred each, which shares may be subscribed for by corporations or individuals; but, so soon as four thousand shares are subscribed, the sub- scription shall be binding, and the corporate powers of said company, as herein granted, shall commence, and have as full operation as if the whole of the shares composing the capital stock were subscribed. SEC. 3. Reduction of shares, when and how. Be it enacted, That, if more than six thousand shares shall be subscribed to the capital stock, the commissioners, or a majority of them, shall reduce the subscription to six thousand shares by striking NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. '.". off from the highest sul)scription in succession in such manner tluit no subscription shall be reduced while one remains larger, estimating by shares instead of dollars, and if there shall l>e an excess, then lots shall be drawn by the commissioners to deter- mine who are excluded. SEC. 4. Payments, when and how made; forfeiture./^ ft enacted, That there shall be paid on each share subscribed, but not until four thousand shares shall have been subscribed, such sum as the president and directors hereinafter named, or a ma- jority of them, may direct, and in such installments, not ex- ceeding one-fourth of the subscriptions in any one year; /Vo- vided, No payment shall be demanded until at least thirty days' notice shall have been given by the said president and directors in the newspapers printed in the towns of Knoxville and Ath- ens, of the time and place of payment; and, if any subscril>er shall fail or neglect to pay any installment or part of said sub- scription thus demanded for thirty days next after the time it fell due, the stock on which it was demanded, together with the amount paid in, may, by the president and directors, or a majority of them, be declared forfeited, and, after due notice, shall be sold at auction, for the benefit of the company, or they may waive the forfeiture after thirty days' default, and sue the stockholders for the installments due, at their discretion. SEC. 5. Subscriptions void, When. Be it enacted, That, if the subscription of four thousand shares, herein made necessary for the incorporation of said company, shall not be obtained by the first day of January, 1838, the same, and all subscriptions under it, shall be null and void upon the stockholders paying to the commissioners a sum not exceeding one dollar on each share, to defray the expenses of opening the books. SEC. 6. Books opened, election of directors, qualification. SCale Of voting. Be it enacted, That, on the fourth day of July, 1836, the said commissioners shall cause books for the subscription of stock to be opened in the towns of Knoxville, Tazewell, Rogersville, Jonesboro, Greeneville, Dandridge, 8e- vierville, Maryville, Madisonville, Columbus, Philadelphia, Athens, Calhoun, Washington, Dallas, Jasper, Pikeville, and 5 66 ACTS OF GEORGIA RELATING TO Kingston, and at such other places as they may deem advisable, which shall continue open foj the space of ten days, or until four thousand shares of the capital stock shall have been sub- scribed; and, as soon as it is ascertained that four thousand shares are subscribed, the said commissioners, or a majority of them, shall give notice, by advertisement in the newspapers aforementioned, at least thirty days previous, of the time and place, that an election will be held for the election of nine di- rectors to manage the affairs of said company; and, at such time and place, each stockholder may attend in person, or vote by proxy for the directors aforesaid, giving one vote for each share of which he may be the owner, in that and all succeeding elections; and the directors thus elected shall elect one of their body president of the board, who shall, together with the other directors, continue in office until the first Monday in January ensuing, and until their successors are elected and duly quali- fied. Any three of the commissioners may act as judges of the first election, and none but a stockholder shall be eligible as a president or director. SEC. 7. Elections of, and number and power of directors; president. Be it enacted, That, to continue the succession of the president and directors of said company, nine directors shall be chosen annually on the first Monday in January, at such place as the board may designate by the stockholders; and the directors shall have power to appoint judges of elections. The president of the board shall be elected within three days after the board is organized. If any vacancy shall occur by death, resignation, or otherwise, the vacancy shall be tilled by the board, and the persons thus appointed shall hold their office until the next annual election. All elections required to be made at a particular time and place, if not then and there made, may be made at any other time or place by giving the usual notice of thirty days, and the old officers shall continue to ex- ercise their functions until their successors are duly elected and qualified. SEC. 8. Stockholders' meetings, removal of officers, etc. Be it enacted, That a general meeting of the stockholders shall be NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 67 held annually at the time and place appointed for the election of president and directors, at which time and place it shall be the duty of the president and directors in office to exhibit a clear and detailed statement of the affairs of the company, and at such meetings a majority of the whole votes upon the stock shall l>e required to remove an officer, or to reverse decrees or acts of the directory. SEC. 9. Oath Of Officers. Be it enacted, That every officer of said company shall, previous to entering upon the duties of his office, take an oath or affirmation faithfully to discharge his duty according to the provisions of this act. SEC. 10. Books reopened, When. Be it enacted, That if any of the six thousand shares shall remain unsubscril>ed for after the organization of said company, the board of directors shall have power to open the books for the sale of the balance of the stock, upon giving thirty days' notice of the time and place, and the subscribers of such stock shall have all the rights and privileges, and be subject to the same regulations of the original shareholders. SEC. 11. Powers of president and directors. Be it enacted, That said president and directors shall have power to appoint a cashier and all such officers, engineers, agents, or servants whatsoever deemed necessary for the transaction of the busi- ness of the company, and may remove any of them at pleasure; may fix the salary or compensation of such cashier, engineers, officers or servants in the employ of said company, and to de- termine by their by-laws the manner of adjusting and settling all accounts against the company, and also the manner, effect, and evidence of transfer of stock in said company. SEC. 12. Capital StOCk increased, hOW. Be it enacted, That if the capital stock of said company shall l>e found insufficient for the purposes of this act of incorporation, it shall and may be lawful for the president and directors, or a majority of them, from time to time, to increase said capital stock by an addition of shares to any amount, so that the whole capital shall not ex- ceed one million five hundred thousand dollars, for which they may cause subscriptions to be received, giving notice in the 68 ACTS OF GEORGIA RELATING TO manner hereinbefore prescribed, the purchasers of which shall stand in the same relation to the company as the original stock- holders. SEC. 13. Additional powers of directors, width of right of Way, etc. Be it enacted, That the president and directors of said company shall be, and they are hereby, vested with all the powers and rights necessary for the building, constructing, and keeping in repair of a railroad from Knoxville, East Tennessee, through the Hiwassee district, to a point on the southern boun- dary of Tennessee, on the nearest, best, and most practicable route. The said road shall have as many tracks as may be deemed necessary by the board of directors, but shall not be more than two hundred feet wide, to which width the company may purchase and cause the same to be condemned for the use of said road, or any less breadth, at the discretion of the di- rectory; and they may cause to be made, or contract with others for making of, said road or any part thereof; and they or their agents, or those with whom they may contract for making any part of said road, or their agents, may enter upon, use, and excavate any land which may be laid out for the site of said road, or the erection of warehouses, engine arbors, res- ervoirs, booths, stables, officers' and mechanics' shops, or other works necessary or useful in the construction and repair thereof or its works. They may fix scales and weights, build bridges, lay rails, make embankments and excavations, and may use any earth, ground, rock, timber, or other material which may be wanted for the construction and repair of any part of said road, and may construct and acquire all necessary steam engines, cars, wagons, and carriages for transportation on said road by horse or steam power, and all necessary apparatus appertain- ing to the same. SEC. 14. Right of way, how acquired; damages.^ it en- acted, That, whenever it shall become necessary, after said road is laid out, to subject the land of individuals, over which said road is laid out, to the use of said company, and, if the right of soil of the owner cannot be had by gift or purchase, it shall be lawful for the president and directors, their agents, con- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 69 tractors, lal>orers, and servants, to enter upon such lands and proceed in the opening und constructing said ruilroud through the same. The pendency of any proceeding in court, or before arbitrators, assessors, or valuers, to estimate the damages that will be sustained by the owner or proprietor of said land by reason of opening said road, shall in no manner hinder or delay the progress of said work, and no order shall be made, nor shall any injunction or supersedeas be awarded by any judge or court to hinder or delay the progress of said work, the true intent of this act being that all injury that may be done to any land, without the consent of owners or proprietors thereof, by oj)ening and constructing the railroad through the same, over and above the advantages of the road to the owners or propri- etors of the lands, shall be fully and completely compensated for in damages, when ascertained, so that a work of great pub- lic utility may not be delayed by lawsuits. See Resolution No. G, passed November 10, 1851, by legislature of Tennessee, requesting- the State of Georgia to protect interest of this company, and keep compact entered into between the two states in re- gard to this road and the Western & Atlantic Railroad. (Acts Tenn., 1851-2, p. 70S.) The resolution may be found herein among acts of Ten- nessee relating to the Western & Atlantic Railroad. SEC. 15. Same, condemnation for. Be it enacted, That the president and directors of said company, their officers, serv- ants, and agents, shall have full power and authority to enter upon all lands and tenements through which they may judge it necessary to make said road, and lay out the same according to their pleasure, so that neither the dwelling house, yard, garden, curtilage be invaded without consent of the owner or proprietor thereof; and if the company cannot agree as to the value of the land, and the owner will not convey it in fee, either party may apply to the circuit court of the county where the said land lies, by giving tive days' notice if the owner of the land resides in the county, and twenty days' notice if he resides in any other county in this state, and by advertising in some news- paper printed in Knoxville, Athens, or Madison ville, if he re- sides out of the state, or be a body corixmite, to appoint com- missioners to assess the value and condemn the land for the use of said road; and the court shall apj>oint five disinterested 70 ACTS OF GEORGIA RELATING TO freeholders of said county, and who shall be sworn or affirmed justly and impartially to value the lands, who shall ascertain what damage the owner will sustain, if any, by the location of said road over his land, always taking into consideration the benefit the road may be of to the owner, and the tendency said road will have to enhance the value of the land; and said five freeholders, any three of whom concurring, shall report to said court as soon as practicable the damages, if any, and if none are sustained they shall report the fact; which report, if unex- cepted to, shall be recorded, and if any damages are assessed, the money shall be paid into court by the company. The fee simple of land, so valued as aforesaid, shall vest in said com- pany; and the description of the land and the report of the commissioners, shall be made a matter of record, and, when registered, shall have the effect of a deed of conveyance in fee simple to the company; Provided, however, That when infants or persons non compos are owners of the land, the guardian shall be notified of said proceedings in court, and if there be no regular guardian, said court shall appoint some person well qualified to defend and protect the interest of such infant or nonsane person. SEC. 16. Same, materials to keep in repair, how taken. lie it enacted, That the president and directors, for the purpose of making said road or repairing the same after it shall have been made, shall be at liberty, by themselves or agents, to enter upon any adjacent land, and cut, quarry, dig, take and carry away therefrom any timber, stone, gravel, or earth which may be necessary; Provided, They shall not, without the consent of the owner, cut down any fruit tree or trees preserved in any inclosure for shade or ornament, or take away any materials constituting any part of a fence or building. For all which materials under the authorit}^ of this act, and for all incidental injuries done to ground, wood, inclosure, or crops, in carrying them away, the said company shall make to the owner a reason- able compensation; and if the parties cannot agree upon the price it shall be ascertained by three impartial freeholders, to be appointed by a justice of the peace at the application of NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 71 either party, the opposite party having three days' notice of the application to the justice. The three freeholders shall lie sworn to do impartial justice between the parties. Their award shall l>e returned to the justice, and shall stand as an award made by order of court upon the rights of the parties, upon which the justice may enter judgment and issue execution if within his jurisdiction; if over, he shall certify the proceedings, as in other cases, to the next court, to be proceeded upon as an award made by order of said court; Provided, Either party may have the proceedings corrected by certiorari, and not by apj>eal; if the proceedings be quashed, the court may appoint other val- uers, and cause justice to be done as contemplated before and by order of the court, quashing said proceedings. SEC. 17. Right of way through state lands. Be it enacted, That should said railroad pass over vacant and unappropriated lands, said company shall have the exclusive right of entering the land over which said road may be laid out, not exceeding two hundred feet in breadth, until the first day of January, 1839, and the entry taker of the district or county through which said road may be laid out shall not receive any entry within that period for the benefit of any other person or per- sons than said .company, under the penalty of five thousand dollars, to be recovered by action of debt in any court having cognizance thereof, at the suit of said corporation; Pwnilded, Said company shall notify the entry taker of the different coun- ties through which said road may pass, of the route thereof. SEC. 18. Lands for warehouses, booths, reservoirs, etc., hOW acquired. Be it enacted, That said railroad company shall have power to acquire and own, as common stock of said com- pany, lands near and connected with said road, on which to erect warehouses, booths, arbors, stables, reservoirs, etc., for the pur|M)se of constructing said road and keeping it in repair, and for the convenience of transportation and places of (lejx)sit, which improvements they are hereby authorized to construct. If the company cannot agree with the owners of the land nec- essary for the above purposes, they may have it condemned in the same manner as the land over which the road is laid out 72 ACTS OF GEORGIA RELATING TO may be condemned by the fifteenth section of this act; Pro- vided, That not more than five acres shall be taken at any one place except by agreement with the owners. SEC. 19. Capital stock and road, personal property.^ it enacted, That the whole stock and property of said company, real, personal, and mixed, and the issues, profits, and proceeds thereof, shall be holden in law, and are hereby declared, to be personal property; and the same shall be governed by th'e rules and laws governing personal property in all cases, and the said property and the profits arising therefrom shall be vested in the respective shareholders, their heirs and executors, adminis- trators and assigns, in the proportion of their respective shares, forever. SEC. 20. Road Crossings. Be it enacted, That whenever it shall become necessary, in the construction of said road, to cross or intersect any public road now or hereafter established by law, it shall be the duty of said company so to construct said road as not to impede the passage or transportation of per- sons or property along the same. SEC. 21. Private Crossings. Be it enacted, That when it shall be necessary to pass through the improved land of any individual, it shall be the duty of said company to provide such individual with a proper and suitable wagon way across said road from one part of his or her land to the other, if the same shall be required by said owner, at the time the route of said railroad [is] determined on, but the owner of such land may, at any time after said railroad shall be opened and completed, construct and make such wagon way across the same at his or her own expense, under the supervision and direction of said company. SEC. 22. Time of beginning and completing road. Be it enacted, That if said company shall not begin the railroad con- templated by this act or contract for the construction of some part thereof, on or before the first day of January, 1838, and complete the same on or before the first day [of] January, 1844, the interest of said company in said road shall be forfeited and cease, and also all right to take tolls. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 73 SEC. 23. May charge tolls, when; exemption from taxa- tion. He it vnactrd, That us soon as any section of tive miles of said road shall be completed, the president and directors may transport all |>ersons, produce, and commodities, such person or persons or owners of such produce or commodities tirst paying to said company or their agent the toll that may be demanded for that purpose. The capital stock of said com- pany shall be forever exempt from taxation, and all their other pro|>erty of every description situated within this state, includ- ing the road and rails, shall be exempt from taxation for and during the period of twenty years from the completion of said road and no longer. SEC. 24. Dividends. -Be it enacted. That after said railroad shall l>e completed, or any five miles thereof, the president and directors shall, on the first Monday in January and July in each and every year, declare and make such dividends of net profits, or the tolls herein granted, as may be advisable, to be divided among the proprietors. SEC. 25. Injury to property of, punishment. Be it enacted, That if any person shall willfully injure, impair or destroy any part of said road constructed under this act, or any of the nec- essary work, buildings, machines, wagons, cars, booths, reser- voirs, bridges or viaducts, such person shall be subject to in- dictment, and, on conviction, shall be fined and imprisoned at the discretion of the court and jury, and shall moreover be liable to an action of damages at the suit of said company in any court having cognizance thereof. SEC. 26. Transportation Charges. Be it enacted, That said company shall be authorized to charge the following tolls, to wit: For every passenger, with not exceeding one hundred pounds of baggage, not exceeding six cents per mile; for every one hundred pounds of goods, wares, merchandise, or prtxiuce and commodities of every description, not exceeding one-half cent per mile on heavy articles, and ten cents per cubic foot on articles of measurement. SEC. 27. Connections with, authorized. /k it enacted, That full right and privilege is hereby reserved to the citizens 74 ACTS OF GEORGIA RELATING TO of this state, or any company hereafter to be incorporated under the authority of this state, to connect with the road hereby provided for any other railroad or public improvement, provided no injury is done to the works made and created by said company hereby incorporated ; And provided also, That the same shall not interfere with the privileges hereinbefore granted. SEC. 28. Terminus Changed, When. Be it enacted, That if an amount of stock should not be subscribed sufficient to com- plete the whole work from Knoxville to the south boundary line of this state, as contemplated by this act, or if a majority of the board of directors should deem it advisable or expedient to begin the work at some point on the Big Tennessee River, and should complete the road from such point to the south boundary line of the State of Tennessee, the work may be considered as completed, anything in this act to the contrary notwithstanding. But the board of directors may, in their discretion, continue said road to Knoxville, should they begin the work at some other point. (Acts Tenn. (local), 1835-6, p. 23.) 3. Stevenson, Sand Mountain & Dalton Railroad Company allowed to connect with Nashville, Chattanooga & St. Louis Railway in Dade county, Georgia. SECTION V. ... And that said railroad company shall have power and authority to lay out and construct branch roads from the main line at any point in Dade county, to intersect with the Nashville, Chattanooga & St. Louis Railroad Com- pany and the Alabama Great Southern Railroad at any point in Dade county, Georgia, that may be selected by the company; and . . . (Acts Ga., 1889, sec. V., p. 393; approved November 13, 1889.) 4. How service of process originally authorized against Nash- ville & Chattanooga Railroad Company by persons hav- ing claims against road in Georgia. WHEREAS, The Nashville & Chattanooga Railroad runs about three miles through the county of Dade, in this state, and NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 75 there being no station or agent in the state upon whom to per- fect service on said company for any injury to stock, proj>erty or person; for remedy whereof, Be it enacted, That from and after the passage of this act, the justices of the inferior court in and for the county of Dade shall cause to be erected a post at a place in said county known as Lookout, on said road, and upon any process, warrant, sum- mons or notice from the superior, inferior or justices' court being issued against said company, and the same being posted on said post, and a copy thereof sent by mail to the address of the president of said railroad, on or before the day it is placed on s lid post, by the sheriff, constable or coroner authorized to serve the same, shall be deemed and held as a full and com- plete service, as if the same had been served on any officer, agent or employee of said company, and shall have the same binding eifect as the service upon any of said officers, agents, and employees of any railroad company in this state; and said company is hereby held responsible and liable for all injury and damages to the citizens of this state that the several rail- road companies in this state are, and the service of any writ, process, summons or notice by any officer authorized to serve the same, upon complying with terms aforesaid, shall be deemed and held complete and full in law. (Acts Ga., 1860, p. 45; passed December 20.) 1. This act was subsequently amended as follows: SECTION 1. Be it enacted, That from and after the passage of this act the ordinary of the county of Dade shall cause to be erected a post at a place on the Nashville fe Chattanooga Railroad, in said county, known as Hooker, and upon any warrant, summons, process, notice from any court or officer of said county being posted on said post and a copy sent by mail, as required by said act. shall be deemed and held a complete and full service, and that the said act, assented to 20th December, 1860, as hereby amended, is declared to be in full force. SKC. 2. That no person complying- with the provisions of this act shall be denied the privilege of suing in any court in said county having juris- diction of the subject-matter, for any injury done by said Nashville & Chattanooga Railroad Company to his or her |>erson or property: Pn>- vlded, That any action that has already accrued shall be brought within the next six months after the passage of this act: Ami ;>rorMl further, Said cdmpanj' shall not be liable to be sued for any damage done to the person or property of any person prior to the flrst of January, 1865. (ActsGa., 1860, No. 126, p. 139). 2. The supreme Court of Georgia, in the case of .V.. f. it Sf. L. /?/. v. McMahon, held the above act to be good and the service as provided for therein valid. 70 Ga., 585. 76 NORTHWESTERN BRANCH OF THE CHAPTER III. THE NASHVILLE & NORTHWESTERN RAILROAD COMPANY. (NORTHWESTERN BRANCH.) How acquired by Nashville, Chattanooga & St. Louis Railway. Under the general improvement laws of 1851-2, and amend- ments thereto, the State of Tennessee, through its governor, indorsed the bonds of the various railroads in the state, to aid in their construction, retaining a lien on the respective roads so assisted as security therefor. Among the number was the Nashville & Northwestern Railroad Company. Default having been made in the payment of interest on the bonds issued for its benefit, a bill was tiled in the chancery court at Nashville in the name of the state against the Edgetield & Kentucky Railroad Company et ah:, to which the said Nash- ville & Northwestern Railroad Company was also made a defendant, seeking to enforce the state's lien or statutory mort- gage. This bill was filed in pursuance of an act of the legis- lature of 1870-71, ch. 23, p. 25, authorizing the sale of all delinquent roads, the tenth section of which provided "that upon the sale of any of the franchises of either of the railroad companies by the commissioners under the provisions of this act, all the rig fits, privileges, and immunities appertaining to the franchise so sold, under its act of incorporation, and the amendments thereto, and the general improvement law of the state and acts amendatory thereof, shall be transferred to and vest in such purchaser, and the purchaser shall hold said fran- chise subject to all liens and liabilities in favor of the state, as now provided by law against the railroad companies.'' On July 6, 1871, a decree was entered directing the said Nashville & Northwestern Railroad to be sold, at which sale the Nashville & Chattanooga Railroad Company, which has subsequently changed its name to the Nashville, Chattanooga NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 77 & St. Louis Railway, became the purchaser. The amount paid for the road was $2,400,000, in bonds of the state, with the coui>ons of January, 1871, and subsequent coupons attached, subject to the condition that the claim of the Nashville & Chat- tanooga Railroad Company against the Nashville & Northwest- ern Railroad Company for expenditures made under the lease of the latter road to the former, amounting to $537, 000, should be paid out of the purchase money in bonds of the state, the Nashville & Chattanooga Railroad Company agreeing to take $700,000 of the bonds with the coupons attached in satisfaction of said debt. This sale was continued November 21, 1872, as will fully appear in minute book "W," p. 485, of the chancery court at Nashville, Tenn. Prior to the chancery court sale above mentioned, the Nash- ville & Northwestern Railroad Company had constructed its road from Nashville to Union City, Tenn., under its charter, and had purchased the Hickman & Obion Railroad, which was chartered both by the legislature of Tennessee (Acts 1S53-54, ch. 307, p. 685), and by that of Kentucky (Acts 1853-54, ch. 781, p. 348), and which road extended from Union City, Tenn., to Hickman, Ky. The entire line of road from Nashville to Hickman, including that purchased from the Hickman & Obion Railroad Company, was sold under this decree, thus giving the purchaser a continuous line from Nashville, Tenn., to Hick- man, Ky. The sale of the Hickman & Obion Railroad to the Nashville * North- western Railroad was legal. It was authorized by Acts Tennessee, 1855-56. ch. 2, p. 3, and by Acts Kentucky, 1855-50, ch. 142, p. 281, both of which acts are set out in the next chapter, as well as the charter of the Hickman A Obion Railroad Company, and the deed to its road. What franchises, etc., passed under the chancery court sale. The decree of sale in this case, under and by virtue of the Acts of 1870-1, ch. 23, above referred to, "ordered, adjudged, and decreed that all the right, title, claim, and interest of all parties to the suit in and to the Nashville & Northwestern Rail- road, its property and franchises, including the right to build a branch road from Huntingdon to Jackson, without any re- 78 NORTHWESTERN BRANCH OF THE sponsibility on the part of the state, be, and the same are hereby, divested out of them and vested in the Nashville & Chattanooga Railroad Company, in absolute right, with all the rights and privileges heretofore determined by the decrees of this court, that belong to the purchasers of the road sold there- under, subject to the lien of the state for purchase money," etc. (See minute book "W," p. 485, in chancery court at Nashville: also book "V," p. 185.) 1. The sale vested in the Nashville, Chattanooga & St. Louis Railway all the immunities from taxation contained in the original charter of the Nashville & Northwestern Railroad Company. 12 Lea, 583; 117 U. S., 833. 2. See charter itself, and amendments thereto, following, for enu- meration of franchises, rights, and immunities, all of which passed, save the unnecessary franchise in this instance of being a corporation. The latter franchise was unnecessary, as the Nashville & Chattanooga Rail- road Company was already incorporated. Width Of right Of way. The Nashville, Chattanooga & St. Louis Railway, having purchased all the property, rights, franchises, privileges, and immunities of this company, as above explained, it is now entitled, on the line of this road, to all the rights conferred in sees. 23 and 24 of the charter of the Nash- ville & Northwestern Railroad Company, which give a hundred feet on each side of the center of said road, in the absence of any contract with the original landowner to the contrary. 5 Pick., 293. There can be no question of this, on that part of the road from Nashville to Union City, as that was constructed by the Nashville & Northwestern Railroad Company under its own charter. As to that part from Union City to Hickman, Ky., however, which was constructed by the Hickman & Obion Railroad Company, under its charter, before the Nashville & Northwestern Railroad Company purchased it, and which char- ter contained no such clause, there is room for argument. It is clear that no such right would exist in favor of the Hickman & Obion Railroad Company, should that company still be in existence and own the road. With the Nashville, Chattanooga & St. Louis Railway it is different. That company is the law- ful purchaser of the property, rights, franchises, and privileges of the Nashville & Northwestern Railroad Company. The NASHVILLE, CHATTANOOGA <& ST. LOUIS RAILWAY. 79 charter of the latter company, in both Tennessee and Ken- tucky, authorized it to build a road from Nashville to Hick- man; and granted it one hundred feet on each side of the center of the road, in the absence of any agreement to the con- trary with the original landowner, from and to the points men- tioned as its termini. The mere fact that it purchased a farm, bridge, or even a railroad, lying within the limits of its author- ized extension, would not deprive it of its statutory franchises. If the Nashville & Northwestern Railroad Company had have only been chartered to run from Nashville to Union City, it might have been different. The purchase then of the Hickman & Obion Railroad might have vested it with only those fran- chises possessed by that company over that part of the road. As it was, however, it was chartered to run from Nashville to Ilii-kinan.) and all the rights, privileges, and franchises con- tained in its charter were granted over its entire route. It is true that by Acts Tenn., 1855-6, ch. 2, p. 3, the Nashville & Northwestern Railroad Company was allowed to change its western terminus to Union City, Tenn., but this act was not accepted, as it also authorized the purchase of the said Hick- man & Obion Railroad, which was done, thus extending its line to the western terminus originally mentioned in its charter. Should this act be construed, however, as changing the western terminus to Union City, it is even then an open question whether or not the rights, privileges, and franchises contained in the charter of the Nashville & Northwestern Railroad Com- pany and the Nashville, Chattanooga & St. Louis Railway do not spread out and embrace this road, as well as all after acquired roads, for the authority to purchase and operate other roads would doubtless, by implication, change the termini of the original road and constitute the road so purchased a part of its main stem. Thus, in New Jersey, it was held that " where a railroad sixty feet wide is purchased by another company which had power to condemn a hundred feet, the latter com- pany, after Gyrating the road for several years, might widen it to a hundred feet." 23 N. J. L., 323; 4 Vroom, 323; Rorer on Railroads, p. 331. 80 NOKTHWESTERN BRANCH OF THE If the Hickman & Obion Railroad Company, therefore, had have only condemned fifty feet, the original landowners, when the Nashville & Northwestern Railroad Company and the Nash- ville, Chattanooga & St. Louis Railway Company threw the mantle of their franchises over the road, would have had the right to apply for an extra assessment of damages for the differ- ence in appropriation. If they failed to do so, they are now barred, and the Nashville, Chattanooga & St. Louis Railway Company should be entitled to one hundred feet on each side of the center of the road from Union City to Hickman. This question has never been decided in Tennessee, however, and a test case should be made before any extensive work is undertaken. For a general discussion of the right to take more than 100 feet on each side of the center of the road, when necessary for railroad pur- poses, see Eminent Domain, Right of Way, herein. Refer to index. Where Nashville & Northwestern Railroad Company incor- porated. The Nashville & Northwestern Railroad Company was chartered both in Tennessee and in Kentucky. The Ten- nessee charter alone is set out in this chapter. The succeeding chapter will contain all acts of Tennessee and Kentucky in ref- erence to the road. Among the latter acts will be found the Kentucky charter. The mere fact, however, that the Nash- ville, Chattanooga & St. Louis Railway purchased this road would not make it a domestic corporation of Kentucky. The Nashville, Chattanooga & St. Louis Railway has never been */ chartered in any state save Tennessee, though it owns and operates many branches that were originally chartered in Ken- tucky, Alabama, and Georgia. Such purchases, however, did not operate to incorporate it in those states. Elliott on Rail- roads, sec. 26; 1 Hilton (N. Y.), 62; 30 N. J. L., 473; 31 N. J. L., 531; 32 Ohio St., 468; 58 Pa. St., 26. See, how- ever, 85 Tenn., 189. Distance built When purchased. The entire line cf road from Nashville, Tenn. , to Hickman, Ky. , had been constructed when the Nashville & Chattanooga Railroad Company pur- chased this road. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 81 ORIGINAL CHARTER OF NASHVILLE & NORTH- WESTERN RAILROAD COMPANY. [Acts Tennessee 1851-2, ch. 74. J SBC. i. Incorporation, name, general powers. He it en- ersonal estate as hereinafter provided, make contracts, sue Cenera , and be sued, make by-laws, and do all other acts Dwers.* properly incident to a corporation and necessary and proper to the transaction of the business for which it is incorporated, and to have and use a common seal, and the same to alter and de- stroy at its pleasure, and have perpetual succession of members. 1. *Name changed. After the purchase by the Nashville & Chatta- nooga Railroad Company, as heretofore explained, of the properties, franchises, rights, privileges, immunities, etc., of this company, it filed a bill in the chancery court at Nashville, Tenn., and, among other things, asked that the name of this company be changed to the Nashville, Mem- phis & St. Louis Railway. ' This was granted, as per decree of May 14, 1872, entered in minute book V, pp. 185-192 of said court. This was clearly within the powers of the chancery court at that time. 3 15ax., 98; 1 Tenn. Ch. Rep., 83, 95, 97; 12 Lea, 97; 11 Lea, 3; 9 Lea. 380. Subse- quently, however, the Nashville it Chattanooga Railroad Company, filed another bill, alleging it had purchased this road, and had its own name changed to the Nashville, Chattanooga & St. Louis Railway. See decree rendered May 30, 1873, in chancery court at Nashville in book X, pp. 220- 222, which decree is also inserted herein. After this was done the name of the Nashville, Memphis & St. Louis Railway was abandoned, as its road had been absorbed by purchase into the general system of the Nashville, Chattanooga & St. Louis Railway. 2. Incorporated in what states. In addition to this charter granted by the State of Tennessee, the legislature of Kentucky, on March 8, 1856, passed an act setting out this charter in full, and " rc-cnnrtcert McNeilly, Thos K. Grigsby, John C. Collier, and William H. Napier. At Waverly, John Wiley, T. B. Groin, Robert McCreary, V. S. Allen, H. H. Marable. At Canulen, William McCutchen, C. K. Wyley, W. P. Morris, E. Perkins, and D. P. Hudson. At Paris, B. C. Brown, J. W. Blanton, W. H. Thompson, J. C. McNeil, L. M. Tharp, and C. D. Venable. At Dresden, Win. Gleeson, Jno. A. Gardner, Collins Mc- Cutchen, James W. Hays, Alfred Gardner, and Win. Snapp. At Troy, - - Cochrane, P. Marberry, - - Moffat, W. S. S. Harris. At Dover, A. W. Wall, Samuel Graham, T. H. Atkins, Wm. B. Cherry, and J. M. Wall. Hy decree of chancery court at Nashville. May 14, 1872, minute book "V,"pp. 185-192, the charter was amended so that the capital stock should be eighteen thousand shares, of one hundred dollars each, and allowing the capital stock to be increased at any time. Hut see discus- sion of validity of chancery court amendments herein. SEC. 3. Subscriptions to StOCk, payment. That said com- missioners, or any two of them, at each of the places afore- said, shall receive subscriptions for stock in said railroad com- pany during the time the said books are directed to be kept open, and on each share so subscribed shall demand and receive the sum of five dollars in cash, or a note or check for the same, without which the subscription shall be void. 1. Hy Acts Tenn., 1853-4, ch. 312, sec. 4. the company was allowed to receive subscriptions for three-quarters, half, and quarter shares, and issue certificates for same. 2. Hy Acts Tenn., 1851-2, ch. 292, sec. 2, the charter was amended so that stockholders should not be required, upon subscribing, to pay more than one per cent, of their subscriptions. See, also. Acts of 1851-2, ch. 285, sec. 12, which alsc amended the charter so that the acts of any three commissioners at any one place became valid without concurrence of whole board. 3. By Acts 1857-8, ch. 60, p. 128, sec. 7, the company was given the extra time of two years in which to get the stock and prepare a section for the iron. SEC. 4. Deposit of money, commissioners, incorporation perfected, When. As soon as the time for receiving subscrip- tions, as aforesaid, shall have expired, the said commissioners shall, respectively, deposit all the money so received by them 84 ORIGINAL CHARTER NORTHWESTERN BRANCH Depositor i n some incorporated bank, redeeming its notes in money. specie, to the credit of the Nashville & Northwestern Railroad Company, and subject to the order of the president of the board of commissioners, hereinafter appointed, and shall also furnish a correct list of all the subscribers to said stock, with the number of shares each subscriber has taken, to a board of commissioners to be composed of the following persons: Thos. Harding, A. W. Vanleer, - Atkinson, - - Newsom, B. Collier, Benj. Robertson, John Wiley, T. B. Gorin, Thos. McNeilly, T. K. Grigsby, S. Finley, T. Cooney, J. C. Currier, Wm. W. Moody, John H. Dunlap, J. C. D. Atkins, J. E. R. Commis- R a .Y> Em. Etheridge, J. W. Hays, A. G. Holden, sioners. p Marberry, W. U. Watkins, Dr. Head, Col. Wm. McCutchen, Wm. F. Dougherty, John Wiley, B. B. Spicer, T. B. Gorin, S. C. Pavatt, and James C. Dunlap, who may establish rules to govern their proceedings, choose their own president, and appoint such other officers and agents as they may think proper; and who, or a majority of whom, shall meet at Nashville on the third Monday in April next, to ascertain the whole number of shares taken in the said company, and publish the same in some newspaper printed in Nashville, on or before the first Monday in May next, and if the number of one thousand shares shall have been subscribed, on each of which there shall have been paid the sum of five dollars, the Nash- ville & Northwestern Railroad Company shall be regarded as incorporation f rm ed, and thenceforth, and from the day of the perfected. closing of the books of subscription as aforesaid, the said subscribers to the stock shall form a body corporate and politic, in deed and in law, by the name and for the pur- pose aforesaid, and in all things to be represented by the board of commissioners aforesaid, until the board of directors are elected, as hereinafter prescribed. By Acts Term., 1851-2. ch. 285, sec. 12, this charter was amended so that the acts of any three commissioners at any one place should be valid without the concurrence of all. SEC. 5. Books kept open, when; incorporation, commis- sioners. If on closing the books aforesaid, the number of one NASHVILLE, CHATTANOOGA e left to the determination of the first board of di- rectors chosen by the stockholders. And the said board of commissioners may, by themselves or their agents, at such times and places as they may think proper, and upon such terms as to time and manner of payment as they may deem expedient, receive additional subscriptions until the numl>er of ten thousand shares shall have been subscribed, upon which the company may be formed, and the subscribers Incorpora . shall thenceforth form a body corporate as afore- tlod - said; Provided, the same shall be done on or Ixjfore the first day of January, 1858; and for the residue of the original num- ber of thirty thousand shares the said corporation, when organ- ized, may, in iike manner, receive additional subscriptions. SEC. 6. Reduction Of Shares. In case more than thirty thousand shares shall have been subscribed on closing the books, when they are first opened, the shares shall l>e reduced to that number by deducting the surplus shares from the high- est subscribers, placing them on equality of numbers as far as can be done, and, after such reduction, the holders of the re- maining shares shall form the company and be interested therein in proportion to the number of shares which they may then re- spectively hold. SEC. 7. Money returned if shares not subscribed. If, on closing the books on the first day of January, 1858, the num- ber of ten thousand shares shall not have l>een subscribed, the money paid by each subscriber shall be returned to him by the 86 ORIGINAL CHARTER NORTHWESTERN BRANCH said board of commissioners after paying the expenses of open- ing the books and of making a survey and map of the route and estimate of the cost of the road, which the said commissioners are hereby authorized to have made as soon as practicable. SEC. 8. President and directors, how chosen. The affairs of said company shall be managed by a board of directors, to consist of fifteen, and who shall be chosen by the stockholders from their own body, and a president of the company shall be elected by the directors from their own numbers, in such man- ner as the regulations of the corporation shall prescribe. 1. This section was affected by decree of chancery court at Nashville May 14, 1872, entered in minute book " V," pp. 185-92, so that the affairs of the company should be managed by the directors for the time being of the Nashville & Chattanooga Railroad Company, by which the presi- dent, and such other officers as may be determined by the by-laws, shall be elected or appointed. 2. This road is now owned by the Nashville, Chattanooga & St. Louis Railway, whose directors control it as a part of its system. The directors of the general system are elected under the charter of the Nashville, Chattanooga & St. Louis Railway proper. See notes to sec. 8 of that charter. SEC. 9. Stockholders' first meeting, directors elected, by- laws. As soon as the number of one thousand shares shall have been subscribed, it shall be the duty of the commissioners appointed to declare the same, to appoint a time for the stock- holders to meet in Nashville, and to give notice thereof by pub- lication in some of the newspapers in Nashville, at which time and place the stockholders, in person or by proxy, shall pro- ceed to elect the directors of the company and to enact all such regulations, rules, and by-laws as may be necessary for the government of the corporation and the transaction of its busi- ness. The persons elected directors at this meeting shall serve for such period not exceeding one year as the stockholders may direct, and at this day the stockholders shall fix on the day the subsequent election of directors shall be held, and such election shall thenceforth be annually made. But if the day of the annual election shall pass without any election of directors, the corporation shall not thereby be dissolved, but it shall be law- ful on any other day to hold and make said election in such manner as may be provided by a by-law of the corporation. See notes to sections 8 and 9 of the charter of Nashville & Chattanooga Railroad Company, chapter 1, herein. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 87 SEC. 10. Vacancies in board, how filled. The lx>ard of di- rectors may fill all vacancies which may occur in it during the period for which their hoard Khali have been elected, and, in the nliM-nce of the president, may till his place by electing a presi- dent pro tempore. See section 10 of charter of Nashville & Chattanooga Railroad Com- pany, herein. SEC. 11. Contracts and agreements binding without seal. All contracts and arrangements authenticated by the presi- dent of the l>oard shall be binding on the company without seal, or such other mode of authentication may be used as the com- pany, by its by-laws, may adopt. 1. This section was amended by decree of chancery court May 14, 1872, entered in minute book " V,"pp. 185-92, at Nashville, so as to read, "all contracts, authenticated by the president of the board shall be bind- ing 1 on the company without seal, and such other mode of authentication may be used as the by-laws may prescribe." As to validity of chancery court charters, however, see discussion herein; see index. 2. Deeds require seal. Deeds to real estate, however, were required at common law to be under seal, and neither the above section nor $ 247S of the code (M. fc V.) change this law. The seal, in such cases, must be attached. 10 Pick. (Tenn.), 4f>0. See index for discussion of this. SEC. 12. Liability Of directors. The board of directors shall not exceed, in their contracts, the amount of the capital stock of the corporation, and of the funds which the company may have borrowed and placed at the disposal of the board; and in case they shall do so the president and directors who may be present at the meeting at which such contract or contracts so exceeding the amount aforesaid shall be made, shall be jointly and severally liable for the excess, both to the contract or con- tractors and to the corporation; Provided^ That anyone may discharge himself from such liability by voting against such contract and causing such vote to l>e recorded on the minutes .of the board and giving notice thereof to the next general meeting of the stockholders. See notes to sec. 12 of Nashville & Chattanooga Railroad charter for discussion of liability^ of directors. See, also, general discussion herein. Refer to index. SEC. 13. Exclusive transportation, freight charges. The said company shall have the exclusive right of transportation or 88 ORIGINAL CHARTER NORTHWESTERN BRANCH conveyance of persons, goods, merchandise, and produce over said railroad by them to be constructed; Provided, That the cost of transportation or conveyance shall not exceed thirty-five cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement, for every hundred miles, and five cents a mile for every passenger; And provided alo t That said company may, when they see fit, farm out their rights of transportation on said road, subject to the rates above mentioned. 1. Amendment by chancery court. By decree of chancery court at Nashville, May 14, 1872, minute book "V,"pp. 185-92, this section was amended so as to read: ' Said company shall have the exclusive right of transportation or conveyance of persons, goods, merchandise, and pro- duce over the railroad by it controlled and managed or constructed." The balance was identical with the section above. For validity of this amendment, however, see discussion herein of chancery court amendments; refer to index. 2. Rate of charge. See discussion under sec. 14 of Nashville & Chat- tanooga Railroad Company charter herein. 3. Exclusive transportation. See notes to sec. 14 of Nashville & Chattanooga Railroad Company charter herein. SEC. li. Installments, SUitS for. The board of directors may call for the payment of ninety-five dollars on each share of stock in sums not exceeding ten dollars in every thirty days; Provided, That twenty days' notice be given of such call in at least one public newspaper of the state in which any of the stockholders may reside, and a failure to pay or secure to be paid, according to the rules of the company, any of the install- ments so called as aforesaid, shall induce a forfeiture of the share or shares on which default shall be so made and all pay- ments thereon, and the same shall vest in and belong to the company, and may be restored to the owner or owners by the board of directors if they deem proper, on the payment of all arrears, on such shares and legal interest thereon, or the direc- tors may waive the forfeiture after thirty days' default and sue the stockholder for the installments due, at their discretion. 1. The legislature, by Act 1855-56, ch. 2. sec. 5, released the stock- holders in Henry and west of the Mobile its road, and for no other purpose. 4 1'ick. (Tenn.), 138. See sec. 17 of charter of Nashville & Chattanooga Railroad Company, ch. 1, herein. SEC. 17. Directors' annual report, may call general meet- ing. The board of directors shall, once in every year at least, make a full report of the state of the company and its affairs to a general meeting of the stockholders, and oftener if directed by a by-law, and shall have power to call a general meeting of the stockholders when the board may deem it expedient. See sec. 18 of charter of the Nashville * Chattanooga Railroad, herein. SEC. 18. Qualification of officers and voters. No i>erson but a bona fide stockholder in his own right of at least ten shares, which he shall have held at least three months previous to his election (except the first election), shall be president or a 90 ORIGINAL CHARTER NORTHWESTERN BRANCH director of the company; nor shall any stockholder vote in per- son or by proxy at any general or other election (except the first), who shall not have held in his own right the shares on which he offers to vote, at least three months previous to such election. See note to sec. 19 of Nashville & Chattanooga Railroad Company charter herein, ch. 1. SEC. 19. Method and scale of voting for directors. Stock- holders may vote in person or by proxy, and, in the election of directors and in voting on all questions which come before a meeting of the stockholders, or which may be submitted to the decision of the stockholders in any other manner, the vote shall be taken according to the following scale, viz. : Each stock- holder shall have one vote for each share he owns; Provided, That no individual, corporation, or company shall be entitled to more than five hundred votes. 1. This section was also amended by decree of the chancery court at Nashville, May 14, 1872, minute book V, pp. 185-192, so as to read as fol- lows: "Stockholders may vote in pei'son or by proxy, and, in voting on all questions which may be submitted to the decision of the stockhold- ers, each stockholder shall be entitled to one vote to each share of stock owned by him or her. 2. Previous to this the legislature, by Acts 1868-69, ch. 2, sec. 4, had allowed all charters to be amended to the same effect, if the company desired. 3. No elections are now held under this charter. The board of direc- tors of the whole system are elected and all corporate business trans- acted under the charter of the Nashville, Chattanooga & St. Louis Rail- way. See section 20 of said charter. SEC. 20. Real property may be purchased for what. That said company may purchase, have and hold in fee or for a term of years, any lands, tenements, and hereditaments which may be necessary for said road or appurtenances thereof, or for the erection of depositories, storehouses, houses for the officers, servants, or agents of the company, or for workshops or foun- dries to be used for said company, or for procuring timber, stones, or any other materials necessary for the construction of the road or its appurtenances, or for effecting transportation thereon, or for other purposes. For the purposes enumerated in the above section, the railway cannot condemn, but must rely upon its purchasing power therein conferred. 11 Hum., 347. See general discussion of this under Eminent Domain, herein: refer to index. NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 91 SEC. 21. Crossing roads and water courses. That aid company shall have the right, when necessary, to construct the said road, or any branch thereof, across or along any public road or water course; Provided, That the said road and the navigation of such water course shall not be thereby obstructed. 1. For crossing- of Tennessee river, see sec. 43 of this charter. 2. Where the railroad crosses public roads already in use, it must, unless relieved by statute, not only restore the public road, but erect and maintain perpetually all structures, and keep up all repairs made necessary by such crossing, for the safety and convenience of the pub- lic. 3 Pick. (Tenn.), 712. But this law does not apply where a public road subsequently crosses the railroad. See discussion herein of this subject; refer to index. 3. The term " public road " in this charter does not embrace the streets and alleys of a city. 3 Head, 596. 4. The temporary and necessary obstruction of navigation in the con- struction or repair of a bridge is not unlawful under this section, nor within the prohibition of \ 1527 of the Code (M. & V.) of Tenn.; Pick. (Tenn.), 638. But see 5 Sneed, 427; 1 Bax.. 55. See sec. 22 of charter of Nashville it Chattanooga Railroad Company, herein. SEC. 22. Purchase Of bridges, roads, etc. The said com- pany may purchase, have and hold any bridge or turnpike road over which it may be necessary to pass, and, when such pur- chase is made, to hold the said bridge or turnpike road on the same terms and with all the rights which belong to the indi- vidual, individuals, or corporation from which such purchase may be made; Provided, That the said company shall not ob- struct any public road without constructing another as con- venient as may be. 1. The term, "as convenient as may be," in the above section, does not mean that the new road must be as convenient and easy of passage and as ftafc as the old road, but that it must be so constructed as to an- swer the purposes of the traveling- public, and be made as easy and con- venient as the nature of the ground will permit, having regard to the rights of the public, and not requiring unreasonable outlays of money by the company. 1 Bax. (Tenn.), 55. 2. This section was amended by decree of the chancery court at Nash- ville, May 14, 1872, minute book V, pp. 185-192. sec. t. so as to read: "The said company may purchase, have and hold any bridge or turnpike or other road over which it may be necessary to pass, ami, when such pur- chase is made, to hold the said bridge or turnpike or other road on the same terms and with all the rights which belong to the individual or corporation from which such purchase may be made. 3. As to validity of this, see discussion of chancery court amendments herein. Refer to index. See sec. 23 of Nashville !t Chattanooga Rail- road Company charter, herein. 4 SEC. 23. Condemnation for right of way. Where any 92 ORIGINAL CHARTER NORTHWESTERN BRANCH lands or rights of way may be required by the said company for the purpose of constructing their road, and for want of ?anditaken 0r agreement as to the value thereof, or from any taie a d scer other cause, the same cannot be purchased from the owner or owners, the same may be taken at a valuation to be made by five commissioners, or a majority of them, to be ap- pointed by the circuit court of the county where some part of the land or right of way is situated, and the said coinmis- By sworn com- S i ners 5 before they act, shall severally take an oath missioners. before some justice of the peace faithfully and im- partially to discharge the duty assigned them. In making said valuation the commissioners shall take into consideration Commission- the loss or damage which may occur to the owner ers to consider /. , , , what. or owners of the land in consequence of the land being taken or the right of way surrendered, and also the benefit and advantage he, she, or they may receive from the erection or establishment of the railroad or works, and shall state particularly the nature and amount of each, and the excess of loss and damage, over and above the benefit and advantage, shall form the measure of valuation of the said land or right of way. The proceedings of said commissioners, accompanied with a full description of the said land or right of way, shall be returned under the hands and seals of a majority of the commissioners to the court from which the commission issued, there to remain a matter of "record. In case either party to the proceedings shall appeal from the valuation to the next session of the court granting the commission, and give reasonable notice to the opposite party of such appeal, the court shall order a new valuation to be made by a jury, who shall be charged therewith in the same term, or as soon as practicable, and their verdict shall be final and conclusive between the parties unless a new trial shall be granted, and the lands or right of way so valued by the commissioners or jury shall vest in the said con> pany in fee simple, so soon as the valuation may be paid, or when refused, may be tendered, to the extent of two hundred feet wide. Where there may be an appeal, as aforesaid, from the valuation of the commissioners NASHVILLE, CHATTANOOGA A ST. LOl'IS RAILWAY. 93 of either of the parties, the siune shall not prevent the works intending to IK constructed from proceeding, but where the appeal is by the company requiring; the surrender, they shall be at liberty to proceed with their works only on ., * worK TO pro- condition of giving to the opposite party a bond ceed - bow - with good security, to be approved by the clerk of the court where the valuation is returned, in a penalty equal to double the said valuation, and interest, in case the same be sustained: and, in case it be reversed, for the payment of the valuation thereafter to be made by the jury and confirmed by the court: Provided) That when the land cannot be had by gift or pur- chase, the operations of the work are not. to be hindered or delayed during the pendency of any proceeding to assess its value as aforesaid, nor shall any injunction or siq>ersedeas be awarded by any judge or court to delay the progress of said work. 1. The Nashville, Chattanooga fc St. Louis Railway having purchased all the property, rights, franchises, privileges, and immunities of this company, it has fallen heir to all the rights of this and the succeeding section. Hence, if the right of way of this company was not originally paid for by it, and there is no contract with the landowner to the con- trary, the Nashville, Chattanooga & St. Louis Railway, as the owner of this branch, would now bt entitled to one hundred feet on each side of center of track when necessary for railroad purposes. ."> 1'ick., 293. 2. Land may be condemned on this branch for ni>i>re confirmed by the owner, it shall be presumed that the land upon which the road may be constructed, together with a space of one hundred feet on each side of the center of said road, has l>een granted to the company by the owner thereof, and the said company shall have good right and title thereto, and shall have, hold, and enjoy the same as long as the same be used only for the purj^ses of the 94r ORIGINAL CHARTER NORTHWESTERN BRANCH road, and no longer, unless the person or persons owning the said land at the time that part of the road which may be on said land was finished, or those claiming under him, her, or them, may apply for an assessment for the value of said lands as hereinafter directed, within five years next after that part of said road was finished, and, in case the said owner or owners, or those claiming under him, her, or them, shall not, within five years after the said part was finished, apply for such as- sessment, he, she, or they shall be forever barred from recover- ing the said land or having any assessment or compensation therefor; Provided, Nothing herein contained shall affect the rights of femes covert or infants until two years after the re- moval of their respective disabilities. For discussion of this section, see notes to section 25 of the charter of the Nashville fe Chattanooga Railroad Company. The two sections are the same. See, also, general discussion herein under Eminent Domain. Refer to index. The Nashville, Chattanooga & St. Louis Railway, in purchasing- this road, acquired all the rights and privileges of this sec- tion. SEC. 25. Forfeiture and penalty for intrusion. if any per- son shall intrude upon the said railroad, or any part thereof, by any manner of use thereof, or of the rights and privileges connected therewith, without the permission or contrary to the will of said company, he, she, or they shall forthwith forfeit to the said company all the vehicles that may be intruded on said road, and the same may be recovered by suit at law, and the person or persons so intruding may also be indicted for misde- meanor, and, upon conviction, fined and imprisoned by any court of competent jurisdiction. This section was re-enacted by decree of chancery court at Nashville, May 14, 1872, sec. 12. minute book "V,"' pp. 185-192, in amending the other sections of the charter. As to the misdemeanor, see 3 Hum., 481-483. SEC. 26. Obstructing or damaging road or bridge, punish- ment. If any person shall willfully or maliciously destroy, or in any manner hurt, damage, or obstruct the said railroad or any bridge or any vehicle used for or in the transportation thereon, such person or persons so offending shall be liable to be indicted therefor, and, on conviction, shall be imprisoned not more than six nor less than one month and pay a fine of not NASHVILLE, CHATTANOOGA . Dividends, paid When. The profits of the com- pany, or so much thereof as the l>oard of directors may deem advisable, shall, when the affairs of the company will permit. 96 ORIGINAL CHARTER NORTHWESTERN BRANCH be semiannually divided among the stockholders in proportion to the stock each may hold. See notes to sec. 31 of the charter of the Nashville & Chattanooga Railroad Company, herein. Dividends are now paid under the charter and by-laws of that company. SEC. so. Banking prohibited, may insure. The said com- pany is hereby expressly prohibited from carrying on any banking operation, but may effect insurance on lives and prop- erty transported on the road. See notes to sec. 31 of the charter of the Nashville & Chattanooga Railroad Company, chap. 1. herein. SEC. 31. Crossings Of roads and lands. Wherever, in the construction of said road, it shall be necessary to cross or in- tersect any established road or way, it shall be the duty of the company to construct said road across such established road or way as not to impede the passage or transportation of persons or property along the same; or where it shall be necessary to pass through the land of any individual, it shall be their duty to provide for such individual a proper wagon way or ways across said road from one part of his road to the other. See notes to sec. 32 of the charter of the Nashville & Chattanooga Railroad Company. The two sections are the same. SEC. 32. Additional powers. The said company shall pos- sess such additional powers as may be convenient for the due and successful execution of the powers granted in this charter and for the successful construction and management of the work. See notes to section 33 of charter of Nashville & Chattanooga Rail- road Company, herein. SEC. 33. Exemption from military, jury, and road duty. The president, directors, clerks, agents, officers, and servants of said company shall be exempt from military duty, except in cases of invasion or insurrection, and shall also be exempt from serving on juries and working on public roads. This is class legislation and unconstitutional. 4 Lea, 316; 91 Ala., 70; 53 A. & E. R. R. Cases, 37. SEC. 34. Slaves, power tO buy. The company shall have full power and authority to purchase and own such number of slaves NASHVILLE, CHATTANOOGA e necessary for the construction of said road and for keeping the same in repair. Slavery abolished by constitution of 1870. SEC. 35. Directors trustees on dissolution. If, by decree or otherwise, the said corporation shall be dissolved, the pres- ident and directors of sai.l company are created trustees, with such |M)wers only as may be necessary to collect the debts due the company, preserve the property, pay the debts, and dis- tribute the property and effects of the company to those who may be entitled thereto under the charter. This company is now dissolved, though its rights. privileges, fran- chi*i-s. and immunities belong to the Nashville, Chattanooga & St. Louis Railway, and are exercised by it. See sec. 37 of charter of that com- pany, herein. SEC. 36. Exemption from taxation. The capital stock of said company shall be- forever exempt from taxation, and the road, with all its fixtures and appurtenances, including work- shops, warehouses, and vehicles of transportation, shall be exempt from taxation for the period of twenty years from the completion of the road, and no longer. 1. The Nashville, Chattanooga & St. Louis Railway, having purchased this road under proceedings instituted by the state, the immunity from taxation passed to it by the sale, as well as all its other rights, privileges, franchises, and immunities. 12 Lea, 583; 117 U. S., 833. 2. Exemptions from taxation in charters prior to the constitution of 1870. and accepted by the corporators and acted upon, is a contract bind- ing upon the state, which cannot be impaired. 2 Pick.. 614; 13 Lea, 400; '.i llnx., 442; 3 Pick., 155; 8 Bax., 539; 80 U. S., 568; 87 U. S., 282; 83 U. S., 320; 117 U. S., 129. SEC. 37. Road tO be completed, When. The railroad author- ized by this act shall be commenced within three years after the passage of this act, and shall be finished within ten years thereafter, otherwise the charter hereby granted shall be void. 1. This section was amended by Acts Tenn., 1853-54, ch. 312, sec. 2, so as to allow the company three years from the passage of the act to com- mence their work, and four years from the passage of the act to complete a section of thirty miles, ready to receive the iron rails, and that the company should receive the state aid as provided by. the act of February 11, 1852, entitled "An act to establish a system of internal improvement in this state," provided the road should be located through Dickson county. 2. By Acts Tenn., 1853-54, ch. 132, sec. 7, the railway was given four years to complete the first thirty miles of said road, as provided by act of February 11, 1852. 98 ORIGINAL CHARTER NORTHWESTERN BRANCH By Acts- 1857-58, ch. 60, p. 128, sec. 7, the company was granted an additional two years in which to g-et the stock and prepare a section for the iron. SEC. 38. Branches, who may build, duty of this road as to. Any individual or individuals, company or body corporate, with permission of the legislature of this state, may hereafter construct branches to connect with the Nashville & Northwest- ern Railroad, and it shall be the duty of said company, when required, to receive on their road the full loaded freight cars from such branches and transport the same to their destina- tion, and to return them without changing the loads thereof or charging for the goods, wares, merchandise, and produce therein any greater rate of freight than they charge for simi- lar goods, wares, merchandise and produce in their own cars; Provided, That the company shall not be compelled to receive said cars on their road unless they are constructed in the same manner and are of equal strength with their own cars, of which the engineer of the main road shall be the judge; And provided^ That the company shall not be required to receive any car from such branches without receiving payment for at least twenty miles transportation; And provided aho, That the said com- pany shall be entitled to similar and equal privileges on such branches constructed to unite with their road with the same re- straints. 1. See notes to section 40 of the charter of the Nashville & Chatta- nooga Railroad Company, herein. 2. By Acts 1865-66. ch. 91, p. 274. this company was allowed to build a branch road from Huntingdon to the Mississippi Central & Tennessee and the Mobile & Ohio railroads. For terms and conditions, see act itself in chapter following. SEC. 39. First election, number of directors, by-laws. That the board of commissioners of the Nashville & North- western Railroad is hereby authorized and empowered to ap- Numberof Pi n t three judges and two clerks for the purpose of holding an election for fifteen directors of said com- pany, and upon the certificate of said judges the said directors shall be authorized to qualify as directors, and to make all Rules and ru ^s, regulations, and by-laws necessary for the government of said company and the management of NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 99 its affairs, and not inconsistent with the general laws of the land. SEC. 40. Judges and clerks of election, how appointed. That the lx>ard of directors of said company shall have power to appoint three judges and two clerks, from year to year, for the purpose of holding an election for directors. The charter of the Nashville & Chattanooga Railroad Company now controls this. SEC. 41. Dividends before completion, how paid. That the said company be required to estimate and credit, semiannually, to the several holders thereof, a sum equal to six per centum per annum on the capital stock of said company actually paid in, to be charged to the cost of construction until the road opens for business, provided a majority of the stockholders, at their first regular meeting, agree thereto. SEC. 42. Work tO Commence Where. That when a sufficient portion of the stock of the company is taken to commence work on said road that the work be commenced at the same time at Nashville and at the Mississippi River, and that the work be thus continued until said road be completed. This section was amended by Acts Tenn., 1853-4, ch. 312, sec. 1, so as to read as follows: "That the president and board of directors of the Nashville fe Northwestern Railroad Company may commence the work on said road where it intersects the Mobile & Ohio Railroad, in Obion county, Tennessee, at the point where the cheapest and most practicable route to the Madrid Bend will strike said Ohio fe Mobile Railroad, to be ascertained by a sworn engineer, and prosecute their work eastwardly from that point, instead of commencing 1 on the Mississippi River, as required in the fortj'-second section of their charter, and also on both banks of the Tennessee River, if, in the opinion of the board of directors, it is expedient to do so; Provided, That no call shall be made on the stock- holders residing west of the Mobile & Ohio Railroad until that part of the Nashville fe Northwestern Railroad lying west of the Mobile & Ohio Railroad is under contract; And provltled further, That this amendment shall not be binding upon the company or become a part of its charter until the same is ratified at a general meeting of the stockholders in said company [called for the purpose by order of the board of directors] by a vote of a majority in the interest of the stockholders, counting the votes according to the basis fixed in the charter of said company in the election of directors." SEC. 43. Bridge across Tennessee river, how constructed. That in the construction of a bridge across the Tennessee river, for the purpose of avoiding any interference with the naviga- tion of said river, it shall be the duty of said company to build 100 ACTS AMENDING CHARTER NORTHWESTERN BRANCH said bridge at least thirty feet above extreme high water mark, between any two piers the company may deem best, and the distance between the two so selected shall be at least one hun- dred and fifty feet, so as to afford free and safe passage for all size boats. (Acts 1851-52, ch. 74; passed January 22, 1852.) 1. This section was amended b3>- Acts Tenn. , 1853-54, ch. 312, sec. 3, so as to allow the company to construct a drawbridge across the Tennessee river, so as not to obstruct the free navigation of said river. 2. Congress acts. Uy acts of congress, 1888 and 1890, the determina- tion of the character of bridges, etc., over all luivkjnble streams has been taken from the state legislatures. Prior to this time, congress had no jurisdiction over the navigable waters within the territorial limits of a state, as there was no common law of the United States independent of statute. Until congress acted, therefore, the matter rested with the state. Hence, the above acts. Since congress has taken charge, how- ever, these state acts are of no particular value. The bridge must be constructed according to the acts of congress, which it now is. 3. For method of procedure in building or repairing bridges over nav- igable streams, under act of congress, see herein. Refer to index. CHAPTER IV. ACTS AND DECREES AMENDING CHARTER OF, AND RELATING TO, THE NASHVILLE . Capital, value of shares. lie It enncteil. That the said cor- poration may increase the corporate stock thereof to thirty thousand shares, at one hundred dollars each; and the president and directors shall have the power of receiving subscriptions of stock to that amount at any time according to their discretion. This company having been purchased bv the Nashville A Northwestern Rtilroad Com- pany, which in turn has been purchased by tin- Nusliville. Chattanooga .v St. Louis Railway, tin- amount of capital iiiul value of shares is now controlled by the latter company as rep. ri-M-ntintr the entire system. See charter of Nashville A: Chattanooga Railroad Company, rh. 1. herein. SEC. 3. Directors, number, how elected, scale of voting. Be it en- tit-tfil. That the affairs of the company shall be managed by a board of directors, to consist of eleven, and shall be chosen by the stockholders from their own body, each stockholder casting one vote for each share he may possess: and the president of the company shall be elected by the directors from their own members, in such manner as the regulations of the corporation shall prescribe. See sec. 8 of charter of Nashville. Chattanooga *V St. Louis Railway, ch. 1. heroin. SEC. 4. Temporary president and directors to act until when. Be it ciutctcd. That the president and directors already elected and now con- ducting the business of said company, to wit. G. W. (Jibbs, (J. \V. L. Marr, Sauney Burress. Olion F. Young. E. H. Fuqua, \V. Robinson. Hur- gess R. Noles. A. D. Kinman. Robert Matson. Ferdinand Wilson, and .1. F. Mares, shall continue to transact the business until the third of Au- gust. 1854. with full power to till vacancies, and until there shall be an- other board elected and organized under the regulations prescribed by the by-laws of said corporation, and the elections thereafter shall be annual. SEC. 5. Vacancies in board, how filled. Be It enticted. That the board of directors may till all vacancies which may occur during the time for which they were elected, and, in the absence of the president, may till his place by electing one of their number president pro tetnpore. See gee. 10 of charter of Nashville, Chattanooga A St. Louis Railway, ch. 1, herein. SEC. 6. Contracts binding without seal. Be It enacted. That all con- tracts and arrangements authenticated by the president of the board, shall be binding on the company, whether with or without seal, or such other mode of authentication as the by-laws may prescribe. 868 tec. 11 of charter of Nashville, Chattanooga V St. Louis Railway, ch. 1. herein. SEC. 7. Liability of directors. Be It ciutctfil. That the board of di- rectors shall not exceed in their contract the capital stock of the corpo- ration, and of the funds which the company may have borrowed and placed at the disposal of the board; and. in case they shall do so, the president and directors who may be present at the meeting at which such contract or contracts, so exceeding tbe amount aforesaid, shall be made jointly and severally liable for the excess, both to the contractor or con- tractors and to the corporation; Provided, That anyone may discharge himself from such liability by voting against such contract or contracts, and causing said vote to be entered on the books of the company, and giving notice thereof to the next general meeting of the stockholders. See sec. 12 of charter of Nashville, Chattanooga A St. Louis Railway, ch. 1, herein. SEC. 8. Exclusive transportation, transportation charges. lie it cnnctctl. That the said company shall have the exclusive right of trans- portation or conveyance of persons, goods, merchandise, and produce over said road by them to be constructed; Provided, That the cost of transportation or conveyance shall not exceed thirty-five cents per hun- dred pounds on heavy articles and ten cents per cubic foot on articles of measurement for every hundred miles, and five cents a mile for every passenger; Ami provided. That said company, when they sit, may farm 106 ACTS AMENDING CHARTER NORTHWESTERN BRANCH out their rights of transportation on said road, subject to the rules above mentioned. See notes to sec. 14 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 9. Installments, forfeiture. Be it enacted, That the board of directors may call for the payment of the capital stock at the rate of not more than ten dollars on each share for every sixty days; and twenty days' notice shall be given in some newspaper of such call; and a failure to pay or secure to be paid, according to the rules of said corporation, any of the installments so called as aforesaid, shall induce a forfeiture of the share or shares on which default shall be so made, and payments thereon, and the same shall vest in said company, but may be restored to the owner or owners by the board of directors, if they deem proper, on the payment of all arrears on such share or shares, and legal interest thereon; or the directors may have the forfeiture after thirty days' de- fault, and save the stockholder for the installments due, at their dis- cretion. SEC. 10. Transfer of shares. Be it enacted, That the stock of said company may be transferred in such manner and form as may be pre- scribed by the by-laws of said company. See sec. 16 of charter of the Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 11. Directors to make annual reports, may call meetings. Be it enacted. That the board of directors shall, once in each 3*ear, make a full report of the state of the company's affairs to the stockholders at a general meeting, and shall have full power to call a general meeting of the stockholders whenever the board may deem it expedient. SEC. 12. Lands maybe purchased for what. Be it enacted. That the said company may purchase, have and hold in fee, or for a term of years, any lands, tenements, hereditaments which may be necessary for said road, or appurtenances thereof, or for the erection of depositories, store- houses, or for workshops or foundries, to be used for said company, or for procuring timber, stone, or any other materials necessary for the construction of said road or its appurtenances, or for effecting transpor- tation, or for other purposes. SEC. 13. Crossings of roads and water courses. Be it enacted, That said company shall have the right, when necessary, to construct said road across or along any public road or water course, provided the roads, and the navigation of such, shall not be obstructed. SEC. 14. Right of way, how condemned. Be it enacted. That when any lands or right of way may be required by said company for the pur- pose of constructing said road, and for want of agreement as to the value thereof, or for any cause, the same cannot be purchased from the owner or owners, the same may be taken at valuation by five commissioners, or a majority of them, to be appointed by the circuit court of the county where said land or right of way is situated, and the said commissioners, before they shall act. shall severally take an oath before some justice of the peace, faithfully and impartially to discharge the duty assigned them: and. on making said valuation, the commissioners* the actual loss or damage to the owner or owners in consequence of the land being taken and the right of way surrendered. The proceedings of said com- missioners shall be returned, accompanied with a full description of the land or right of way, under their hands and seals, of a majority of the said commissioners, to the court from whence the commission issued, there to remain a matter of record. In case either party shall appeal from the decision of the commissioners to the next session of the court granting the commission, and give reasonable notice to the opposite party of such appeal, the court shall order a new valuation to be made by a jury, who shall be charged therewith at the same term, or as soon NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 107 as practicable, and their verdict shall be final and conclusive between the parties, unless a new trial be granted, and the land or right of way so valued by the commissioners or verdict of a jury, shall vest in said company so soon as the amount of such valuation be paid, or a tender and refusal thereof, to the extent of one hundred feet wide. When there may be an appeal by either party, the same shall not prevent the works intended to be constructed from proceeding; but when the appeal is taken by the company, they shall enter into bond and security to the opposite party, approved by the clerk, in double the amount of the val- uation and interest, in case the same shall be confirmed, and. in case it be reversed, then to pay the amount of the valuation thereafter to be made by the jury and confirmed by the court; Provide'!, That when the land cannot be had by gift or purchase, the operations of the work are not to be hindered or delayed during- the pendency of any proceedings tn ji^sess its value as aforesaid, nor shall any injunction or supersedeas be awarded by any judge or court to delay the progress of said work. 1. *The wording of the above i-ection is exactly as it appears in the Acts of 1853-4, p. 685. There was something evidently left out. 2. See notes to sees. 24 and 25 of charter of Nashville, Chattanooga A St. Louis Railwayt ch. 1. herein. SKC. 15. Intrusion, punishment for. Be it enacted; That if any per- sons shall intrude upon said railroad, or any part thereof, or the rights and privileges connected therewith, without the permission or contrary to the will of said, company, he, she, or they shall forthwith forfeit to the said company all the vehicles that may be intruded on said road, and the same may be recovered by suit at law; and the person or persons so intruding 1 may also be indicted for a misdemeanor, and upon conviction fined and imprisoned by any court of competent jurisdiction. SEC. 16. Obstruction a nuisance. Be it enacted. That every obstruc- tion to the safe and free passage of vehicles on said road shall be deemed a public nuisance, and. as such, may be abated by an officer, agent, or servant of the company; and the person causing such obstruction may be indicted and punished for erecting a public nuisance before any com- petent jurisdiction. The l:in'_ r ii:i-_'i- of the above section is exactly as it appears in the act. The word court, in the last line, was evidently unintentionally left out. SKC. 17. May establish warehouses and charge storage, when. Be it enacted, That said company shall have the right to take at the store- house they may establish or rent to the road, all goods, wares, merchan- dise, and produce intended for transportation: prescribe the rules of priority, and charge and receive such just and reasonable compensation for storage as they, by rule, may establish, which they shall cause to be published (or may be agreed upon with the owner), which may be dis- tinct from the charges of transportation, provided the said company shall not charge or secure storage on goods, wares, or produce which may be delivered to them at their regular depositories for immediate transportation, and which the company may have the power of trans- porting immediately. SEC. 18. Dividends, when paid. Be It enacted. That the profits of the company, or so much thereof as the board of directors may deem advis- able, shall, when the officers* of the company will permit, be semian- nually divided among the stockholders, in proportion to the stock each may hold. *The word " officers " in the above section evidently was Intended for "affairs." The section is inserted exactly as it ap|>ears in the original act. SEC. 15t. Banking prohibited, may insure. Re it eitartcd. That the said company is hereby expressly prohibited from carrying on any bank- ing operations, but may effect insurance upon lives and property trans- ported on said road. 108 ACTS AMENDING CHARTER NORTHWESTERN BRANCH SEC. 20. Company must construct crossings. Be it enacted, That whenever, in the construction of said road, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the com- pany to construct said road across such established road or way so as not to impede the passage or transportation of persons or property along the same; or where it shall be necessary, through the land of any indi- vidual, it shall be their duty to provide for such individual a proper wagon way or ways across said road. SEC. 21. Bight of way, additional powers. Be It enacted, That the said company shall have the right of way for said road from the line of the State of Kentucky south to the terminus thereof; and they shall have such additional power as may be necessary and convenient for the successful execution of the powers granted in this charter, and for the successful construction and management of the work. SEC. 22. Exemption of officers, etc., from road, jury, and military duty. Tie it enacted. That the president and directors, clerks, agents, officers, and servants of said company shall be exempt from military duty, except in case of invasion or insurrection, and shall also be exempt from serving- on juries and working on public roads. SEC. 23. May own slaves. Be it enacted. That the said company shall have full power to purchase and own such number of slaves as shall be necessary for the construction of said road, and for keeping the same in repair. SEC. 24. Exemption from taxation. Be it enacted. That the capital stock of said company shall be forever exempt from taxation, and the road, with all its fixtures and appurtenances, including workshops, warehouses, and vehicles of transportation, shall be exempt from taxa- tion for the period of twenty years from the completion of said road, and no longer. SEC. 25. May extend road to Dresden, when and how. Be it enacted, That said company shall have power, and they are hereby authorized, to extend their road to the town of Dresden, in the county of Weakley. or connect with the Nashville it Northwestern road at such point as may be convenient in the county of Weakley or Obion, at their discretion, which connection, if made, shall be regulated by the provisions of the thirty-eighth section of the charter of the said Nashville & Northwest- ern road, and. in the event said extension shall be determined upon, then the company shall be authorized to increase their capital stock to the amount of five hundred thousand dollars, and said company shall have, possess, and enjoy the same rights and privileges and be subject to the same rules, regulations, and liabilities upon said extension as are here- inbefore prescribed in the charter for the other portion of said road; Provided. That said road shall not be extended to the town of Dresden only in the event of the failure of the Nashville & Northwestern Rail- road Company to build their road, as required by law. or with the con- sent of said company. (Acts Tenn.. 1853-54, p. 685; passed December 20, 1853.) The Nashville \ Northwestern Railroad Company built its road to Un'on City, and hence this section was inoperative. The Nashville it Northwestern Railroad Company then purchased this road. 5. Charter amended; may unite and consolidate with or lease Mississippi Central Railroad Company, how; may also unite with any company connecting with it in direction of New Orleans. SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the Nashville & Northwestern Railroad Com- NASHVILLE, CHATTANOOGA e, and the said company hereby is, authorized to lease the Mississippi Central Railroad for such a length of time, and upon such terms and conditions, as may be agreed upon by the board of directors of each company, and after such lease to run, use, and manage the said road so leased, whether in this or any other state, under and with all the cor- porate powers, rights, and privileges, and subject to the limi- tations and restrictions of the charter of the comjMiny whose road is leased. SEC. 5. That the said Nashville & Northwestern Railroad Company, or the united company, as al>ove, is also May unite further authorized to unite with any other company pany. 110 ACTS AMENDING CHAKTER NORTHWESTERN BRANCH whose road may connect with it in the direction of New Orleans, in the State of Louisiana, upon the same terms and conditions and in the same way as above provided, so as to form a continuous line of railroad to or in the direction of New Orleans. (Acts Tenn., 1859-60, ch. 177; passed March 22, 1860.) 6. Charter amended ; may unite and have common track with Memphis, Clarksville & Louisville Railroad, where and how ; may change route, may consolidate with Missis- sippi & Tennessee Central Railroad, how. SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the Nashville & Northwestern Railroad Company and the Memphis, Clarksville & Louisville Railroad Company be authorized to unite their roads and make a com- mon track for such distance and upon such terms as the said companies, through their presidents and directors, may agree upon, and may build a common bridge across the Tennessee river, and, if said companies unite, they shall be entitled to ten thousand dollars per mile of the state aid now allowed by law to said two companies for the distance thus run in common, and the whole of the state aid for the bridge across Tennessee river. SEC. 2. That the Nashville & Northwestern Railroad Corn- May change P anv ^ je authorized to change the location of their location. SEC. 3. That nothing in this act shall be so construed as to give the Nashville & Northwestern Railroad Company more than ten thousand dollars per mile on any portion of said road run singly, and the same amount on such portion of consoli- dated road. SEC. 4. That the Mississippi and Tennessee Central Railroad may consolidate with the roads mentioned in the first section of this act, upon such terms and at such place as may be agreed upon by the board of directors of the consolidated roads men- tioned in the first section of this act; Provided, If the Nashville & Northwestern Railroad is changed from its present location in the county of Carroll, the stockholders shall be released NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. Ill from the payment of any more of the calls for stock from said company; And provided. That the consolidated roads shall re- ceive no more state aid than ten thousand dollars per mile, and the bridge aid already appropriated by law to the two first roads named in this act. (Acts Tenn., 1857-8, ch. 89; passed February 27, 1858.) 7. Nashville & Northwestern Railroad to adopt gauge of Nashville & Chattanooga Railroad Company; may run cars to depot of Central Trunk Railroad, how; charter amended, stockholders to pay only one per cent, cash in subscribing. SEC. 10. Be it enacted, That the Tennessee Central Railroad Company, the Memphis & Nashville Railroad Company, and the Northwestern Railroad Company, shall be required to con- struct their tracks respectively with the same gauge as the Nashville & Chattanooga Railroad and the Central Trunk Rail- road Company, and each of said companies shall have the right to pass their locomotives and train of cars to the depot of the Central Trunk Railroad, which may be established on either side of the Tennessee river, without charge from said Central Trunk Railroad Company, and shall have the same privilege of connecting with their road as is granted in the fortieth section of the Nashville & Chattanooga Railroad charter, and the priv- ilege shall be reciprocal between the several companies. SEC. 11. [Relates to other roads.] SEC. 12. Be it further enacted, That the charter of the Nash- ville & Northwestern Railroad be so amended that the stock- holders, upon subscribing, shall not be required to pay more than one per cent, of their subscriptions, and not that unless required by the commissioners, and that the acts of any three of the commissioners, at any one place, may be valid without the concurrence of the whole board. (Acts Tenn., 1851-2, p. 531; passed February 28, 1852.) 112 ACTS RELATING TO NORTHWESTERN BRANCH ACTS OF TENNESSEE RELATING TO NASH- VILLE & NORTHWESTERN RAIL- ROAD COMPANY. 1. To issue stock to taxpayers for taxes paid to provide inter- est on bonds issued by this company, when. SECTION 1. That , the Northwestern Railroad Company, , shall, by and with the consent of the county court of Davidson county, be required to issue stock to the taxpayers of said county for the amount of the annual tax which has already and may hereafter be paid by said taxpayers to provide for the interest on the bonds issued by said county for said railroads, on presentation of the tax receipts for the respective railroads; said tax receipts shall be negotiable by indorsement, and no stock shall be issued for a less amount than one share, provided said railroad compan}^ shall not be required to issue stock for said tax receipts until the first dividend is ready to be made, at which time, or any time thereafter, shall issue the stock. (Acts Tenn., 1855-6, ch. 104, p. 117; passed February 14, 1856.) 2. Extra time given to get stock and prepare road. SEC. 7. Be it further enacted, That the Nashville & North- western Railroad Company shall have the further time of two years in which to get the stock and prepare a section for the iron, as required by law, provided this shall not interfere with the rights of stockholders. (Acts Tenn., 1857-8, ch. 60, p. 128, sec. 7; passed February 13, 1858.) 3. Resolution directing the governor to surrender the Nash- ville & Northwestern Railroad Company to its president and directors. Be it resolved by the General Assembly of the State of Ten- newee, That the governor be, and he is hereby, instructed to immediately surrender the Nashville & Northwestern Railroad to the president and directors of said company, provided noth- ing in this resolution shall be construed as to vitiate in any manner the indebtedness of the state in or upon said railroad. (Acts Tenn., 1868-9, ch. 34, p. 383; adopted December 3, 1868.) NASHVILLE, CHATTANOOGA e submitted to the decision of the stockholders, such stockholders shall be entitled to one vote for each share of stock owned by him or her. 8. The said corporation shall possess and enjoy all the rights, privileges, and immunities to which the Nashville e determined by said board. It is therefore ordered that all persons who desire to resist the granting of said amendment and alteration to said charter, as above indicated, or to the prayer of the petition, do make their appearance herein, on or before the first Monday in April 118 DECREES RELATING TO NORTHWESTERN BRANCH next, 1872, and then and there show cause, if any they have or can, why the prayer of said petition should not be granted and said charter amended, and that a copy of this order be published for thirty days in the Nashville Republican Banner. A copy attest: NATHANIEL BAXTER, JR., FOGG, WHITESIDES & FRIZZELL, Clerk and Master. Solicitors for Petitioners. It also appeared that no person has appeared to show cause why the prayer of said petition should not be granted. It also appeared that under decree pronounced by this court, in the cause therein pending of the State of Tennessee v. The Edge- field <& Kentucky Railroad Company and others, the petitioner, the Nashville & Chattanooga Railroad Company, became the pur- chaser of the franchises and property, and of the interest of the state in the Nashville & Northwestern Railroad Company, incorporated by the general assembly of Tennessee, and oper- ating a railroad from Nashville, in said state, toHickman, in the State of Kentucky, and that the petitioner desires that the name of said Nashville & Northwestern Railroad Company may be changed as hereinafter provided, and that the privileges granted the said Nashville & Northwestern Railroad Company in the act of incorporation and the acts amendatory thereof, be altered and changed as set forth in said petition, and that peti- tioner, as purchaser, may be substituted to all the rights and privileges, and subject to all the liabilities of the act incorpo- rating the Nashville & Northwestern Railroad Company. And the court being satisfied of the propriety of the changes asked for, doth, in pursuance of the powers vested in courts of chancery by par. 22, sec. 15, of ch. 54 of the acts of the gen- Vests rights era ^ assembly of the State of Tennessee, approved etc. nC in i is es & c. January 30, 1871, order, adjudge, and decree that the said Nashville & Chattanooga Railroad Com- pany, as purchaser as aforesaid, be, and the same is hereby, sub- stituted to all the rights, privileges, and immunities, and sub- ject to all the liabilities, of the act of incorporation under which the said Nashville & Northwestern Railroad Company was or- ganized, and the acts amendatory thereof, and that the name NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 119 of said company l>e changed to that of the " Nash- ville, Memphis & St. Louis Railway," and the privileges granted the same by the acts aforesaid be altered and changed so that, including such portions of said acts of said corporation as are not changed by this decree, the same shall read as follows: 1. Name, style, and general powers. For the purpose of establishing and maintaining a communication by railroad be- tween Nashville, Tenn., and the Mississippi river, the forma- tion of a company is hereby authorized, which shall be a body corporate by the name and style of the "Nashville, Memphis & St. Louis Railway," and by this name shall be capable of buying, receiving by gift, holding, selling, and conveying real and personal estate, making contracts, suing and l>eing sued, making by-laws, and doing all the other acts properly incident to a corporation, and necessary and proper to the transaction of the business for which it is incorporated, and to have and use a com- mon seal, which it may alter and destroy at its pleasure, and have perpetual succession of members. 2. May increase capital stock. The capital stock of said company shall consist of eighteen thousand shares of one hun- dred dollars each, and the capital stock may be increased at any time by the board of directors, two-thirds of the entire num- ber of directors agreeing thereto, to such an amount as the board of directors may determine. 3. May be managed by Nashville & Chattanooga Railroad Company. The affairs of said company shall )>e managed by the board of directors for the time being of the Nashville & Chattanooga Railroad Company, by which the president and such other officers as may be determined by the by-laws shall be elected or appointed as may l>e prescribed thereby. 4. Contracts of president binding without seal. All con- tracts authenticated by the president of the board shall l>e bind- ing on the company without seal, and such other mode of au- thentication may be used as the by-laws may prescribe. 5. Rates of toll and rights relating thereto. Said company shall have the exclusive right of transportation or conveyance 120 DECREES RELATING TO NORTHWESTERN BRANCH of persons, goods, and merchandise and produce over the rail- road bv it controlled and managed or constructed. The cost V of transportation or conveyance shall not exceed thirty-five cents per hundred pounds on heavy articles and ten cents per cubic foot on articles of measurement for every hundred miles, and five cents per mile for every passenger, and said company may farm out its right of transportation subject to said rates. 6. StOCk transferable. The stock of said company may be transferred in such manner and form as may be directed by its by-laws. 7. Manner Of voting. Stockholders may vote in person or by proxy, and, in voting on all questions which may be submitted to the decision of the stockholders, each stockholder shall be en- titled to one vote to each share of stock owned by him or her. 8. May construct road or branches along public roads and water Courses. Said company shall have the right, when nec- essary, to construct its road, or any branch thereof, across or along any public road or water course, provided said road and the navigation of such water course shall not be thereby obstructed. 9. May purchase bridges and turnpikes. Said company may purchase, have, and hold any bridge or turnpike or other road over which it may be necessary to pass, and, when such purchase is made, to hold the said bridge or turnpike, or other road, on the same terms and with all the rights which belong to the individual or corporation from which such purchase may be made. 10. Right Of way, how acquired. When any lands or right of way may be required by said company for the purpose of constructing its road or any branch thereof, and for want of agreement as to the value thereof, or from any other cause, the same cannot be purchased from the owner, the same may be taken at a valuation to be made by five commissioners, or a majority of them, to be appointed by the circuit court of the county where some part of the land or right of way is situated, and the said commissioners, before they act, shall severally take an oath before some justice of the peace, faithfully and impartially to discharge the duties assigned them. In making NASHVILLE, CHATTANCXX5A & ST. LOUIS RAILWAY. 121 the said valuation, the said commissioners shall take into con- sic It-ration the loss or damage which may occur to the owner of the land in consequence of the land being taken or the right of way surrendered, and also the benefit and advantage he, she, or they may receive from the erection or establishment of the railroad or work, and shall state particularly the nature and amount of each, and the excess of loss and damage over and above the benefit and advantage, shall form the measure of valua- tion of the said land or right of way. The proceedings of said commissioners, accompanied with a full description of the said land or right of way, shall be returned, under the hands and seals of a majority of the commissioners, to the court from which the commission issued, there to remain a matter of record. In case either party to the proceeding shall appeal from the valuation to the next term of the court granting the commission, and give reasonable notice to the opposite party of such appeal, the court shall order a new valuation to be made by a jury, which shall be charged therewith at the same term, or as soon as practicable, and their verdict shall be final and conclusive between the parties unless a new trial shall be granted, and the lands or right of way so valued by the commissioners or jury shall vest in the said company in fee simple so soon as the valua- tion shall be paid, or, when refused, may be tendered to the extent of two hundred feet wide. When there may be an appeal, as aforesaid, from the valuation of the commissioners by either of the parties, the same shall not prevent the work intended to be constructed from proceeding, but where the appeal is by the company requiring the surrender, it shall be at liberty to pro- ceed with its work only on condition of giving to the opposite party a bond with good surety, to be approved by the clerk of the court where the valuation is returned, in a penalty equal to double the said valuation and interest in case the same may be sustained, and, in case it be reversed, for the payment of the valuation thereafter to be made by the jury and confirmed by the court. 11. Right of way in absence of contract. In absence of any contract with the said company in relation to lands through 122 DECREES RELATING TO NORTHWESTERN BRANCH which its road or any branch thereof may pass, signed by the owner thereof, or by its agent, or any claimant or person in possession thereof, which may be confirmed by the owner thereof, or by his agent, or any claimant or person in posses- sion thereof, which may be confirmed by the owner, it shall be presumed that the land upon which said road or branch may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the com- pany by the owner thereof, and the said company shall have a good right and title thereto, and shall have, hold, and enjoy the same as long as the same may be used only for the pur- poses of the road and no longer, unless the person or persons owning the said land [at the time that part of the road which may be on said land] was finished, or those claiming under him, her, or them, shall apply for an assessment of the value of said lands as hereinbefore directed, within five years next after that part of said road was finished; and in case the said owner or owners or those claiming under him, her, or them, shall not, within five years after the said part was fin- ished, apply for such assessment, he, she, or they shall be for- ever barred from recovering said land, or having any assess- ment or compensation therefor; Provided, Nothing herein con- tained shall affect the right of feme covert or infants, under two years after the removal of their respective disabilities. This section is a literal copy of sec. 25 of the original charter of the Nashville & Northwestern Railroad Company, and the words placed in brackets were omitted in the decree, and are now supplied for what it is worth. 12. Intrusion, penalty. If any person shall intrude upon the said railroad, or any part thereof, by any manner of use thereof, or of the right and privileges connected therewith, without the permission or contrary to the will of said company, he, she, or they shall forthwith forfeit to the said company all the vehicles that may be intruded on said road, and the same may be recovered by suit at law, and the person or persons so intruding may also be indicted for a misdemeanor, and, upon conviction, fined or imprisoned, or both, by any court of com- petent jurisdiction. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 123 13. MaliciOUS injury, hOW punished. If any person shall willfully or maliciously destroy or in any manner hurt, dam- age, or obstruct the said railroad, or any bridge or any ve- hicles used for or in transportation thereon, shall be liable to be indicted therefor, and, on conviction, shall be imprisoned not more than six nor less than one month and pay a tine of not less than twenty ($20) dollars, and shall be further liable to pay all the expenses of repairing the same, and it shall not be competent for any person so otfending against the provisions hereof to defend himself by pleading or giving in evidence that he was the owner or agent or servant of the owner of the land where such destruction, hurt, damage, injury or obstruction was done or caused at the time the same was caused or done. i-t. Obstruction a public nuisance. Every obstruction to the safe and free passage of vehicles on the said road, or any branch thereof, shall be deemed a public nuisance and may be abated as such by any officer, agent, or servant of the company, and the persons causing such obstruction may be indicted and punished for erecting a public nuisance. 15. Rates Of Storage. Said company shall have the right to take in the storehouses they may establish all goods, wares, merchandise, and produce intended for transportation, prescribe the rules of priority, and charge and receive such just and rea- sonable compensation for storage as they, by rules, may estab- lish (which they shall cause to be published) or as may be affixed by agreement with the owner, which may be distinct from the rates of transportation; Prnvideil, Said company shall not charge or receive storage on goods, wares, or pro- duce which may l>e delivered to it at its regular depositories, for immediate transportation, and which the company may have the power of transporting immediately. 16. Dividends, hOW paid. The profits of the company, or so much thereof as the board of directors may deem advisable, shall, when the affairs of the company will permit, l>e semi- annually divided among the stockholders in proportion to the stock each may hold. 17. Banking prohibited, may insure. Said company is 124 DECREES RELATING TO NORTHWESTERN BRANCH hereby expressly prohibited from carrying on any banking- operations, but may effect insurance on lives and property transported on the road. is. Duty in crossing roads and lands. Whenever, in the construction of said road, or any branch thereof, it shall become necessary to cross or intersect any established road or way, it shall be the duty of the company to construct said road across such established road or way so as not to impede the passage or transportation of persons or property along the same, or where it shall be necessary to pass through the land of any individual, it shall be the duty of said company to provide for such indi- vidual a proper wagon way or ways across said road from one part of his land to another. 19. Exemption from road and military duty. The presi- dent, directors, clerks, agents, officers, and servants of said company shall be exempt from military duty, except in cases of invasion or insurrection, and shall also be exempt from serving on juries and working on public roads. 20. Exemption from taxation. The capital stock of said company shall be forever exempt from taxation, and the road, with all its fixtures and appurtenances, including workshops, warehouses, and vehicles of transportation, shall be exempt from taxation for the period of twenty years from the comple- tion of the road, and no longer. 21. May Construct branch roads. Said company may con- struct such branches and extensions of its present line of rail- road as may from time to time be determined by its board of directors. 22. Bonds may be issued. The board of directors of said company may, from time to time, two-thirds of all the directors thereof agreeing thereto, cause to be issued the bonds of said company for such amounts, not exceeding twenty thousand dol- lars per mile of the entire railroad operated and controlled by it, as may be necessary, in the opinion of said board of directors, to carry into successful operation the objects and purposes of said corporation. 23. May purchase, lease, or construct lines. The board of NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 125 directors of said company may, two-thirds of all the directors thereof agreeing thereto, extend its line of railroad -to such points as may be determined by said board, and for this pur- pose may acquire by purchase or lease other railroads, or con- struct new lines of railroad as may, from time to time, be de- termined by said board. 24. Additional powers. Said company shall possess such ad- ditional powers as may be convenient for the due and successful execution of the powers granted hereby, and for the successful construction and management of the work. It is further ordered that the Nashville & Chattanooga Rail- road Company pay the costs of this proceeding, for which execution may issue, and when the same shall be paid, the clerk and master will issue a certified copy of this decree for regis- tration. Decree entered in minute book "V," pp. 185-192 of chan- cery court at Nashville, Tenn., May 14, 1872. There is no question but that the chancery court had authority to change the name of the company as before explained, but, as to the other amendments, see discussion herein of "chancery court amend- ments." Refer to index. ACTS OF KENTUCKY RELATING TO THE NASH- VILLE & NORTHWESTERN RAIL- ROAD COMPANY. 1. Charter of Nashville & Northwestern Railroad Company granted by the State of Kentucky. SECTION i. Incorporation, general powers. #ecome indebted to the State of Tennessee for bonds indorsed by its governor to aid in its construction. This indebtedness was secured by a 9 130 HISTORICAL SKETCH OF THE LEBANON BRANCH statutory lien or mortgage on the road. On March 28, 1872, the legislature of the state passed an act [Acts 1872, p. 27, ch. 6, ex. ses.], authorizing this indebtedness to be compromised upon the payment by the board of directors of said road of $300,000 in bonds of the state, with coupons since January, 1871, attached, one-fourth cash, or twenty days thereafter, and the balance in one, two, and three years thereafter. The Nashville, Chattanooga & St. Louis Railway, under and by virtue of this act, subsequently settled with the State of Ten- nessee, paying the $300,000, as provided therein, and thus secured a clean title to the road. The said Act of 1872 is in- serted in the next chapter. 1. Legality of the purchase of the road. The purchase of this rail- way by the Nashville. Chattanooga & JSt. Louis Railway was legal. Under the Acts of Tennessee, 1871, ch. 69, which superseded the Acts of 1871, ch. 22, it was provided that ''every railroad corporation in this state, whether created under a general or special law, shall have the power to acquire, by purchase or other lawful contract, and have, hold, xise, and operate any railroad, with its francliises, belonging to any other railroad corporation." 2. Legality of the purchase of the stock. The purchase of this stock by the Nashville, Chattanooga & St. Louis Railway was also legal, tinder the Acts of Tenn.. 1869-70, ch. 49, sec. 4, ail railroad companies of this state were allowed to subscribe for or purchase the stock and bonds, or either, of any other railroad company, when their roads con- nected iJircctly or by intervening railroads. 3. Consideration. For the consideration paid for the road, see deed to same, in next chapter. 4. The ownership of the stock by Wilson and Davidson counties legal. Hy Acts Tenn., 1868-9. ch. 11, p. 93. sec. 29, Wilson and Davidson counties were authorized to subscribe for stock in the Tennessee & Pacific Railroad Company. What franchises, etc., passed under this sale. in addition to the road and other property conveyed, the deed specifically transferred all the rights, privileges, immunities, franchises, and easements of said Tennessee & Pacific Railroad Company to the Nashville, Chattanooga & St. Louis Railway. These rights, privileges, immunities, and franchises are largely set out in the charter of the said Tennessee & Pacific Railroad Company, but it will be noticed that section 15 of said charter also conveys to the company all the rights, easements, and franchises of the Nashville cfc Chattanooga Railroad Company. This being so, the latter company, as a lawful purchaser, is now entitled, on that line of road, to all the rights, privileges, NASHVILLE, CHATTANOOGA ers, as well as the amount of stock each one shall have subscribed to the stock of said company, to said board of com- missioners, to be composed of the following persons, viz. : John P. Campbell, John Kirkman, A. Nelson, S. E. Hare, Charles H. Erwin, H. A. Sanford, A. Hamilton, Joseph W. Allen, J. J. Swiggart, John 13. Johnson, J. C. Parkhurst, Commissloll . H. A. Duncan, W. T. Berry, James Whitworth, ers< W. L. Waiters, John W. Bowen, G. W. Keith, John C. Van- Guilder, John Williams, Sam'l Morgan, Win. Bossen, J. W. Paremore, A. H. Stephens, E. H. East, and Stephen M. Bur- ton, who, or a majority of whom, shall constitute a quorum to do business. And said commissioners, immediately after the passage of this act, or as soon thereafter as convenient, shall 134r ORIGINAL CHARTER OF THE LEBANON BRANCH meet in the city of Nashville, choose a president, establish rules to govern their proceedings, appoint such other officers and agents as they may think proper, and prescribe their duties. They shall have power, and are hereby directed, to appoint an agent or agents, to solicit stock in said corporation, in any state or country; and said board of commissioners shall ascer- tain, from time to time, the whole number of shares Organization. . . . , , , taken in said company; and as soon as the number of five thousand shares shall have been subscribed, on which the sum of one dollar per share shall have been paid, the Tennessee & Pacific Railroad Company shall be regarded as formed, and thenceforth and from that date the said subscribers of the said stock shall form a body politic and corporate in fact and in law, by the name and for the purposes aforesaid, and in all things to be represented by the board of commissioners aforesaid, under a board of directors hereinafter prescribed. SEC. 5. Commissioners survey route, when; books kept Open, When; increase Of Capital. Be it farther enacted, That upon the fact being ascertained of the subscription of five thou- sand shares aforesaid, and the payment aforesaid of one dollar per share to the stock of said company, the board of commissioners may proceed to survey the route of said road and estimate the cost of its construction. Never- theless, no conclusive and binding location of said road shall be O made by the commissioners, but the same shall be left to the determination of the first board of directors, chosen by the stockholders in the manner hereinafter directed; and the said board of commissioners, by themselves or agent, at such times and places as they shall deem proper, and upon such terms as to times and places as they may think proper, shall continue to Additional receive additional subscriptions until the number of subscription. R -^ v thousand shares shall have been subscribed to the capital stock of said company; and for the residue of one hundred thousand shares, the said corporation, when organized, may continue, in like manner, to receive additional subscrip- increase tions; Provided, That the directors, chosen by the stockholders of said company in the manner herein- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 135 after directed, shall have power to increase the number of shares in said company to the amount necessary to complete said road. Six . (i. President and number of directors, how chosen. H< /f further enacted, That the affairs of said company shall be managed by a board of fifteen directors, any eight of whom shall constitute a quorum to do business, thirteen of whom shall be chosen by the stockholders, in the manner hereinafter pro- vided, and two of whom shall be appointed and commissioned by the governor; and a president of the company shall be elected by the directors, from their own number, in such a manner as the board of directors may prescribe. This road has been purchased by the Nashville, Chattanooga & St. Louis Railway, whose directors control it as a part of its general system. The number and method of electing- directors is therefore now controlled by the charter of said Nashville, Chattanooga & St. Louis Railway. See en. 1, sees. 8 and 9, herein. SEC. 7. First election Of directors.^ it further enacted, That at the first election for directors the board of commissioners shall have the power to appoint three judges and two clerks, for the purpose of holding said elections; and upon the certifi- cates of said judges the persons so elected directors shall be authorized to qualify as directors. SEC. 8. Annual election of directors, powers. Be it fur- ther enacted, That in order to continue the succession of pres- ident and directors of said company, thirteen directors shall be chosen annually by the stockholders of said com- Annual pany, at such times and places as the president and electlon - directors may designate, giving thirty days' notice of the same in one or more newspapers published in the cities of Nashville and Knoxville; and two directors shall be appointed and com- missioned annually by the governor; and the directors thus chosen and appointed of said company shall have power to ap- point judges and clerks of all elections, and to elect a presi- dent from among the members of said board of directors, and to allow him such pay for his services as they may think proper; and if any vacancy occur by death, resignation, or otherwise, of any president or directors, before the time he was elected for has expired, a person to fill such vacancy for 136 ORIGINAL CHARTER OF THE LEBANON BRANCH the unexpired time shall be appointed by the president and Powers of directors; and the president and directors shall hold directors. an( j exercise their offices until their successors are elected and qualified. If the time fixed by a by-law of the cor- poration for holding the annual election of directors shall have passed without the holding of an election for directors, the corporation shall not be, on that account, dissolved, but it shall be lawful on any other day to hold and make such election. This road is now owned by the Nashville, Chattanooga & St. Louis Railway, whose directors control it as a part of its general system. The directors of the general system are now elected under the charter of the Nashville, Chattanooga & St. Louis Railway. See ch. 1, sees. 8, 9, 10, herein. SEC. 9. Oath of president treasurer's bond. Beit further enacted, That the president and directors, before they act as such, shall make oath or affirmation that they will well and faithfully discharge the duties of their respective offices, to the best of their skill and ability; and the said president and directors shall have power to appoint a treas- urer of said company and to require of him a bond in such pen- alties, with such securities, as they may prescribe, payable to said company, and conditioned for the faithful keeping and disbursing all money that may come into his hands as treasurer of said company, and with such other conditions as they may prescribe, upon which said bond a re- covery may be had for a breach of the condition thereof by suit in the corporate name of said company in any of the courts of this state having jurisdiction thereof; and the board of directors, in the absence of the president, may fill his place by electing one of their members president pro tempore. SEC. 10. Liability Of directors. Be it further enacted, That the board of directors shall not exceed in their contracts the Not to exceed amoun ^ f the capital of the corporation or the funds the funds of the company may have bor- rowed or the amount of the state aid hereinafter provided for and which may be placed at the disposal of the board; and, in case they should do so, the president and directors, at any meeting at which the contracts so exceeding the amounts afore- NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 137 said, and voting for the same, and not voting against Liability. it, shall be jointly and severally liable for such ex- cess, l>oth to the contractors and corporation. For the liability of directors of the general system of which this road now forms a part, see charter of Nashville, Chattanooga & St. Louis Railway, sec. 12. SEC. 11. Construction, when to commence; rate of charge; route. Be it fartlier enacted, That said company shall have power and may proceed to construct said railroad Whento as sjKiedily as their means will permit, and may use a""" 1 " 1 "- any section of said road, by them to be constructed, before the whole is completed, subject to the same rates that other railroads in this state are allowed by law to charge; Provided, Said railroad shall be located on the nearest and most practicable route from Knoxville to Nashville, and from Nashville to Jackson, and from Jackson to Memphis, to be ascertained by the survey herein- before authorized and directed; and said company have the ex- clusive right of carrying and transporting Arsons, goods, mer- chandise, and all freight and produce, over said road by them to be constructed, subjected to the same rates hereinbefore pre- scribed and directed. As to rate of charge, see notes to sec. 14 of charter of Nashville & Chattanooga Railroad Company, chap. 1. SEC. 12. Installments, forfeiture of shares.^ it further enacted, That the board of directors may call for the payment of forty-nine dollars on each share, in sums not ex- ceeding five dollars at any one time; thirty days' notice of which shall first be given in one or more newspapers published in the cities of Nashville and Knoxville, and a failure to pay after such notice, or to secure the same to be paid, ac- cording to the rules of the company, any of the installments so called as aforesaid, shall work a forfeiture of the share or shares on which default shall be made, and all payments thereon; and the same shall vest in and belong to said company; but the board of directors may, upon the owner or owners thereof pay- ing all arrearages on such share or shares, with all Forfe | tures costs which may have accrued, and the interest there- etc * 138 ORIGINAL CHARTER OF THE LEBANON BRANCH on, restore the same; or the directors may revive the forfeiture after thirty days and sue the stockholder or stockholders, at their discretion. SEC. is. Transfer of stock, increase of capital. Beit fur- ther enacted, That the stock in said company may be transferred in such manner and form as may be directed by the by-laws of said corporation; and said company may increase the capital Ma increase stock to a sum sufficient to complete said railroad capital. j-he wno j e distance between Knoxville and Mem- phis, upon the nearest and most practicable route, to be ascer- tained as hereinbefore provided, and to stock said railroad with everything necessary to put it in complete operation, either by opening books, from time to time, for new stock, or by bor- rowing money upon the credit of the company, and in the man- ner which it may be done in either case, shall be prescribed by the by-laws of said corporation; and any state, citizen, or cor- poration, or company, of this or any other state or country, may subscribe for and hold stock in said company. See notes to sec. 16 of charter of Nashville & Chattanooga Railroad Company, ch. 1, herein. SEC. 14. Qualification of officers and voters, proxy, scale Of voting. Be it further enacted, That any person who is the owner of one or more shares of stock, in his own right, and who has been the owner of the same three months (except at Eligibility ^ e ^ rs ^ e l ec ti n )> shall be eligible to hold any office in said company; and every person must have owned the share or shares, on which he offers to vote, at least three months, except at the first election; and stockholders may vote in person or by proxy, given in writing, and in voting for directors, or on any question which may come before a meeting of the stockholders, or which may be submitted to the stockholders in any other manner, the owner of one or more shares shall be entitled to one vote for each share he, she, or they may own. See notes to sees. 19 and 20 of charter of Nashville & Chattanooga Railroad Company, ch. 1, herein. SEC. 15. Right of way, condemnation; Nashville & Chat- tanooga charter applies, when; storage. Be it further en- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 139 acted. That the right of way is hereby granted to , Right of way. said corporation, to have and to hold in fee, or for a term of years, any lands, tenements, or hereditaments which IIKIV l>e necessary to said road or appurtenance Real estate, thereof, or for the erection of depot houses, or storehouse or houses, or offices for the officers and servants or agents of the company, or for workshops or foundries to he used for the said company, or for procuring rock, stone, tim- ber, earth, and gravel, water, and all materials necessary for the construction of the road and its appurtenances, and for ef- fecting transportation thereon; and where any land or right of way may he required by said company for the purpose of con- structing said road, and, for the want of agreement or for any other cause the same cannot be purchased from the owner or owners thereof, the same may be taken at a valua- tion to be ascertained in the way, and with the same rights, conditions, and liabilities, as is especially provided and enacted in the act chartering and incorporating the Nashville & Chattanooga Railroad Company, and all the rights, easements, and franchises, and all the liabilities to and held by the said Nashville & Chattanooga Railroad Company shall be held, pos- sessed, and exercised, and are hereby granted, to Rlghts of N the company which it is intended by this act to in- C.*st. L. Ry. corporate, including the right to take and store all goods, wares, merchandise and produce intended to be transported over said road, provided said company shall not charge stor- Stora _ e age on goods, wares, merchandise, and produce char * es - which they receive in store to be transjK>rted over said road, but shall be allowed to charge the usual rates of storage on all freights received for delivery, after giving the assignee or as- signees ten days' notice of the reception of such freights. Status of the right of way on this branch now. It will he noticed, as one of the peculiarities of this charter, that the right of way was first granted to the company. It then provided, and which is the most val- uable part of the charter, that " if, for want of an agreement or for any other cause, the right of way cannot be purchased, the same may be taken at a valuation to be ascertained in the way, and with the same rights, conditions, and liabilities, as is provided and enacted in the char- ter of the Nashville it Chattanoog-a Railroad Company." etc. This was a very vahiable franchise, and confers upon the Nashville, Chattanooga 140 OKIGINAL CHARTER OF THE LEBANON BRANCH & St. Louis Railway, which company has subsequently purchased the property, road, franchises, etc., of this railway, the right to one hundred feet on each side of the center of the road, when necessary for railway purposes, in the absence of any written agreement with the original landowner to the contrary. See full discussion of this in notes to sees. 24 and 25 of the charter of the Nashville & Chattanooga Railroad Company, ch. 1, herein. SEC. 16. Dividends, banking, and insurance. Beit further enacted, That the profits of said company, or as much thereof as the board of directors may deem advisable, shall, when the affairs of the company permit, be paid to the stockholders semi- annually, in proportion to the amount of stock each may hold, but no dividend shall be paid to any defaulting stockholder; and said company is hereby expressly prohibited from carrying on any banking operations, but may effect insurance on the lives and property transported over said road. See notes to sees. 30 and 31 of charter of Nashville & Chattanooga Railroad Company, ch. 1, herein. SEC. 17. President and directors, powers of. Be it further enacted, That the president and board of directors shall have Appoint offi- power to appoint all officers, agents, engineers, cers, agents, . , u etc. servants, and employees, in whatsoever number may be necessary to carry on, aid, inaugurate, and transact the business of the company, and to remove them at pleasure; Salaries ac- * ne } 7 sna ^ have the power to determine and fix by counts, etc. contract the amount of compensation of all officers, agents, servants, and employees of said company, and to regu- late by their by-laws the manner of selling and adjusting all accounts in favor or against the company, and the said com- pany shall have and possess all such additional powers as may be necessary to carry into effect and execution the power granted in this act of incorporation. SEC. 18. State aid tO. Be it further enacted, That the same state aid to railroads provided for by the act of 1852, ch. 151, and subsequent acts amendatory thereof, commonly called the "Internal Improvement Law,'' is hereby granted to the com- pany intended to be corporated by this act; and whenever it shall be satisfactorily shown to the governor that stock suffi- cient in good and bona fide subscription to grade and prepare NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 141 for iron rails thirty miles of the said road, then the governor shall be authorized, and is hereby authorized, to issue and de- liver, upon the application of the president of the said company, the amount and kind of bonds provided for as aid to said road in said general internal improvement law, which shall not be sold l>elow the par value; and as fast as every additional ten miles shall be prepared, as directed in said law, then the additional amount of the same kind of bonds shall, by the governor, be issued and delivered in like manner to said company, and in all other respects all the aid to railroads provided for in the general internal im- provement laws of this state are hereby granted to the company herein incorporated, under the restrictions, liabilities, and liens therein prescribed. See next chapter for state aid. SEC, 19. State aid, how determined. Be it further enacted, That the same amount of state aid in coupon bonds, payable in the same way, and having a like time to run, upon the same conditions, and with the same liens, securities, and liabilities that are granted to the Southwestern Railroad Company to aid said company in building bridges, are hereby granted for the same purpose to the Tennessee & Pacific Railroad Company, in- corporated by this act; and the governor is hereby authorized to issue to the said company bonds of the same amount and kind aforesaid, upon the same conditions as are provided for in the act incorporating the Southwestern Railroad Company, and the several amendments thereto. SEC. 20. State aid; lien On road for. Beit further enacted, That for the bonds received, as herein provided, the state shall have and hold a prior lien upon the said railroad, its fixtures and equipments, to be built by the company intended to l>e in- corporated by this act, in the same way and to the same extent, and with the same remedies, and with as full power to enforce the same, as it possesses in regard to the other railroads in the state, to which aid has or shall be extended; and the president and directors of the Tennessee & Pacific Railroad Company, by this act incorporated, shall provide for 142 ORIGINAL CHARTER OF THE LEBANON BRANCH and pay the interest upon the bonds by them received from the state, as the same falls due, and shall provide for and pay the same rate per cent, into the sinking fund as other railroads in the state are required by law to pay, and, failing to do so, shall be subject to the penalties established by law. SEC. 21. Road tO be Completed, When. Be it further enacted, That the railroad authorized by this act shall be commenced within five years after the passage of the same, and shall be finished in fifteen years thereafter, otherwise the charter hereby granted shall be void. SEC. 22. Company subject to general laws; president Be it further enacted, That the company chartered by this act shall be subject to all general laws passed in this state for the government of railroad companies, and no person shall be elected thereto, or hold the office of president of this railroad, who is president of any other railroad in this state. (Acts 1865-6, ch. 88, p. 252; passed May 24, 1866.) It will be noticed that the above section does not reserve the right to modify, alter, or repeal the charter. It simply provides that the com- pany "shall be subject to all general laws passed in this state for the government of railroad companies." In other words, this referred to "police" and "traffic" regulations, and in no manner can be construed into a reservation on the part of the state to modify, alter, or repeal the charter, or to divest the company of any vested rights under the same. Section 15 of this charter, therefore, providing for a one hundred foot right of way on either side of the center of the road, in absence of con- tract to the contrary, is binding. See 9 Bax., 442; 2 Pick., 614; 3 Pick., 155; 13!) U. S., 833; 29 U. S., 938; 117 IT. S., 129. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 143 CHAFFER VI. DEED OF AND ACTS RELATING TO THE TENNESSEE & PACIFIC RAILROAD COMPANY. Deed to Nashville, Chattanooga & St. Louis Railway of road, franchises, etc., of Tennessee & Pacific Railroad. TENNESSEE & PACIFIC R. R. Co., TO Deed. N., C. &ST. L. RY. In pursuance of the resolutions of the stockholders of the Tennessee & Pacific Railroad Company, adopted at their con- vention at Nashville, on September 12, 1877, and that of the directory of said company, passed on the first day of October, 1877, as will appear from the minutes of said board, and for and in consideration of the payment to the said Tennessee & Pacific Railroad Company of the sum of one hundred and forty thousand six hundred dollars in State of Tennessee bonds, forty thousand dollars in Tennessee & Pacific Railroad Company mortgage ten per cent, bonds, and ten thousand dollars in cash, by the Nashville, Chattanooga & St. Louis Railway, the receipt whereof is hereby acknowledged, the said Tennessee & Pacific Railroad Company does hereby bargain, sell, alien, and convey to the said Nashville, Chattanooga eing a distance of about thirty miles; together with all and singular the lands, tracks, lines, rails, 144 DEED OF AND ACTS RELATING TO LEBANON BRANCH bridges, ways, rights of way, materials, privileges, interests, real estate, and personal property, situated in the State of Ten- nessee, of every kind and character, including the depots and stations and grounds attached thereto, on said line of railroad; and also all the rolling stock, locomotives, engines, tenders, cars, tools, and machinery belonging or appertaining to the said railroad of the Tennessee & Pacific Railroad Company, as aforesaid, including all of the choses in action of said com- pany, of every kind and nature but this is not to include the claim known as the Mabry claim, being a debt due by one Jas. A. Mabry and secured, in part, by real estate in or near Knox- ville, Knox county, Tennessee, the said Mabry claim being excluded from the conveyance herein, and to be and remain the property of the said Tennessee & Pacific Railroad Company. To have and to hold the same to the said Nashville, Chattanooga & St. Louis Railway and its successors and assigns, forever. And the said Tennessee & Pacific Railroad Company does hereby covenant to and with the said Nashville, Chattanooga & St. Louis Railway that it is lawfully seized and possessed of said above described property, and has full right and power to convey the same, and that the same is wholly unincumbered, and that it will forever warrant and defend the title to the same against the claim or claims of any and all persons whatsoever to the said property herein conveyed and any part thereof. In witness whereof, the said Tennessee & Pacific Railroad Company has caused its president to affix its corporate name and seal hereto, this first day of October, 1877. [SEAL.] TENNESSEE & PACIFIC RAILROAD, By JOHN W. CHILDRESS, Pr. R. C. BRANSFORD, Sec'y. Registered December 7, 1877, in Register's office, Davidson county, Tennessee, book 58, p. 537. Counties of Wilson and Davidson given privilege of voting for stock in Tennessee & Pacific Railroad Company. Be it further enacted, That the general provisions of sees. 5, 6, 9, and 12 of this act be, and the same are hereby, extended to NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 145 the . . . and the Tennessee & Pacific Railroad Company, and that the counties of Wilson and Davidson shall have privi- lege of again voting for or against subscriptions to the stock of said Gallatin & Lebanon and Tennessee & Pacific Railroad Companies, at the request of said companies, and all laws or parts of laws conflicting herewith are hereby repealed. (Acts Tenn., 1868-9, ch. 11, p. 93, sec. 29.) 1. The counties of Wilson and Davidson, under this authority, voted a large subscription. Their stock was subseqxiently sold to the Nash- ville, Chattanooga & St. Louis Railway. See minute book " E," pp. 302- 305 and 348-351 of the county court of Wilson county. 2. Sees. 5, 6, and 9, above referred to, authorized the counties to in- dorse the bonds of the company, and prescribed rules and regulations in regard thereto. 3. Sec. 12, above referred to, authorized the company to issue bonds to an amount not exceeding two hundred thousand dollars, on such terms and in such denominations as to it might seem advisable. Tennessee & Pacific Railroad Company and Nashville & Cin- cinnati Railroad Company authorized to unite upon a common track, how and when. SECTION 1. Be it enacted by the General Assembly of the State of Tennezxee, That the charter of the Nashville & Cincin- nati Railroad Company, enacted by the general assembly at its session of 1851-2, as recorded in ch. 303, is hereby revived, with the privilege of building said road to such distance as may be deemed expedient by said company, on the south side of the Cumberland river, and the said Nashville & Cincinnati Railroad Company and the Tennessee & Pacific Railroad Company are hereby authorized and empowered to unite upon a common track, either single or double, as may be deemed expedient by said companies, and to such distance to the eastward or north- eastward of Nashville as the said companies, in their discretion, may agree upon. But in the case of any such union of the said roads upon a common track, as herein provided, the state aid provided for by law shall not l>e extended in full to each of the roads for the distance they may run upon a common track, but only to the amount of three-fourths thereof to each road; and for such distance as the said roads may run upon separate and distinct tracks the said state aid shall he extended in full, as 10 146 DEED OF AND ACTS RELATING TO LEBANON BRANCH provided for by law. (Acts Term., 1865-6, p. 388; passed May 26, 1866.) Attorney- general directed to institute suit against Tennessee & Pacific Railroad Company for bonds fraudulently ob- tained. SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the attorney -general of this state shall forth- with institute, in the name of the state, a suit in the chancery court of Davidson county, against the Tennessee & Pacific Rail- road Company, setting forth particularly that the said company has fraudulently obtained the issuance of the bonds of the state, to the amount of eight hundred and eighty-five thousand dol- lars, and has obtained the issuance of the said bonds contrary to the provisions of the act to establish a system of internal im- provements in this state, passed February 11, 1852, and con- trary to the provisions of an act passed December 7, 1867, en- titled "An act to amend the internal improvement laws of the state," passed February 11, 1852, and enjoining said Tennessee & Pacific Railroad Company, its officers, agents, directors, and stockholders, from in any way disposing of said bonds until the further order of the court, and asking that the board of direct- Officers and ors ' P res ident, officers, and stockholders of the Ten- nessee & Pacific Railroad Company be held in- dividually liable for the payment of the bonds so fraudulently and illegally obtained by such company, and for all other losses that may fall upon the state in the consequence of the commission of any fraud by such company, or by the illegal act of said company in the receipt or disposal of said bonds by said company, its agents, or officers or attorneys; Pro- vided, That nothing in this act shall be so construed Proviso. . as to require suit to be brought against John Kirk- man, W. K. Elliston, Thomas Chad well, E. J. Williams, D. Cooke, Jr., E. H. East, and Abram L. Demoss, or any di- rectors or stockholders of said company who may show that they were ignorant of or opposed to the procurement of said bonds by the company; Provided further, That said stockholders did not approve of the use of said NASHVILLE, CHATTANOOGA een realized and secured to the state by sales of the same; the amount so to be paid to be ascertained by said commissioners, and payment Paynieilt thereof to be made and secured upon exactly the how m * de< same terms and conditions as those for the other railroads spec- ified; the company to have preference of purchase, company to and until the second Tuesday of April, 1872, in erence. which to make the first payment, and upon the company's failure to purchase, then the stockholders thereof to have twenty days from the said second Tuesday of April, 1872, in which to purchase and make the first payment, but a purchase by any part of the stockholders to be for the benefit of all stockholders in proportion to their respective amounts of stock, including the counties of Wilson and Davidson, who may elect to par- ticipate in such purchase under its terms, and it being further expressly provided that a sale under provisions of this act shall forever prevent said Tennessee & Pacific Railroad Company from demanding or receiving any further issue of bonds of the state, under any act of the legis- lature heretofore passed; Provided further, That nothing in this act shall relieve said Tennessee & Pacific Railroad Com- pany from liability to the state in full for all such bonds re- ceived from the st-ite, as may be judicially determined under suit in the chancery court at Nashville, to be illegally held by said company; the institution of such suit to be at the sound discretion of said commissioners, under advice of the attorney- general of the state, or such other legal counsel as may be selected, and to be only instituted within ninety days after the passage of this act, and in default of such suit settlement under the provisions of this act to be final; but if the suit pro- vided by this section be instituted, said company, or its stock- holders, to have sixty days from final decree under the same in which to purchase said Tennessee & Pacific Railroad on the terms herein provided. 150 DEED OF AND ACTS RELATING TO LEBANON BRANCH SEC. 3. Be it further enacted, That this act take effect from and after its passage, the public welfare requiring it. (Acts Tenn., 1871, ch. 127, p. 138; passed December 13, 1871.) This act was amended by Acts 1872. ch. 6, p. 27 (ex. ses.). See act immediately following. Commissioners authorized to compromise state's claim against Tennessee & Pacific Railroad Company for $300,000, how. SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the said act, passed on the 13th December, 1871, which provides for a sale of the state's interest in the Tennessee & Pacific Railroad, be amended so that the directors of said road, representing the stockholders in said Tennessee & Pacific Railroad Company, shall be permitted to fiernent be* settle the debt of the state against said railroad on tween state , . , . . j 4 and T.& p. R. account of state bonds issued to it in aid of its con- R Co struction, by the payment to said commissioners of the sum of three hundred thousand dollars ($300,000), in the bonds of the State of Tennessee, with coupons since January, 1871, attached, under the provisions of existing laws upon the subject of the sale of delinquent railroads, one-fourth of which shall be paid on the day of sale or twenty days thereafter, and the balance in one, two, and three years thereafter. SEC. 2. Be it further enacted, That a compliance with the provisions of this act shall be deemed a full satisfaction and discharge of the state's claim against said railroad. SEC. 3. lie it further enacted, That the second section of the act of December 13, 1871, with the provisos thereto attached, is hereby repealed, upon the Tennessee & Pacific Railroad Com- pany accepting the terms of this act, and upon said company making the payment and complying with the terms as required by this act, and upon the company paying the costs that have or may accrue upon any suit brought by the state to recover any portion of the state's bonds heretofore issued to said company; and section first of said act of December 13, 1871, is suspended until said Tennessee & Pacific Railroad Company shall notify the commissioners of their refusal to accept the terms of the NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 151 first section of this act, provided said notice shall be given the commissioners within twenty days after the passage of this act. SEC. 4. Be it further enacted, That this act shall take effect from and .after its passage, the public welfare requiring it. (Acts Tenn., 1872 (ex. ses.), ch. 6, p. 27; passed March 28, 1872.) The state was settled with under this act. State aid to the Tennessee & Pacific Railroad. Below is given the act of the legislature of Tennessee authorizing state aid to be granted to the Tennessee & Pacific Railroad, for the purpose of building and equipping its road. This aid was given by having the governor to indorse the bonds of the road on behaff of the state. The act is quite lengthy, and is so sel- dom required, being long since repealed, that, for the purpose of space and economy, it is not deemed advisable to insert it in full in this compilation, but simply refer to the act and page where it can be found. Acts of 1867-8, ch. 17, p. 14, sec. 9. An additional sum of $10,000 per mile appropriated to the Tennessee & Pacific Railroad Company under the internal improvement act. The charter of the road itself provided for state aid. See charter in preceding chapter. 152 ABSTRACT OF TITLE TO FAYETTEVILLE BRANCH CHAPTER VII. WINCHESTER & ALABAMA RAILROAD COMPANY. (Now FORMING PART OF FAYETTEVILLE BRANCH.) How acquired by Nashville, Chattanooga & St. Louis Rail- way. Under the general improvement laws of 1851-52, and amendments thereto, the State of Tennessee, through its gov- ernor, indorsed the bonds of the various railroads in the state, to aid in their construction, retaining a lien on the respective roads so assisted, as security therefor. Among the number was the Winchester & Alabama Railroad Company. Default having been made in the payment of interest on the bonds issued for its benefit, a bill was filed in the chancery court at Nashville in the name of the state, against the Edge- field & Kentucky Railroad Company et als., to which the Win- chester & Alabama Railroad Company was also made a defend- ant, seeking to enforce the state's lien or statutory mortgage. This bill was filed in pursuance of an act of the legislature of 1870-71, ch. 23, p. 25, authorizing the sale of all delin- quent roads, the tenth section of which provided, ' ' that upon the sale of any of the franchises of either of the railroad com- panies, by the commissioners, under the provisions of this act, all the rig/its, privileges, and immunities appertaining to the franchise so sold, under its act of incorporation, and the amend- ments thereto, and the general improvement law of the state, and acts amendatory thereof, shall be transferred to and vest in such purchaser, and the purchaser shall hold said franchise, subject to all liens and liabilities in favor of the state, as now provided by law against the railroad companies. ' ' A decree of sale was entered, and the commissioners reported that propositions were made by John Frizzell and others, and Wright & Co., to buy the road at the minimum price fixed by the decree, which was $300,000. Preference was given to NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 153 Wright & Co., but after considerable litigation they withdrew their offer, and M. J. Wicks and J. J. Donegan purchased the road at the figure mentioned. Their bids were subsequently transferred to the Memphis & Charleston Railroad Company, and on June 28, 1875, a final decree was entered in said case, confirming the sale of the road, franchises, privileges, right of way, etc., to said Memphis & Charleston Railroad Company. See decree itself in minute hook 2, p. 438, in chancery court at Nashville, Tenn., which decree is also set out herein, in next chapter. The decree, with proper acknowledgments, is regis- tered in the register's office of Warren county, in book 7, No. 7, pp. 72, 73; in Coffee county, in book vol. No. 2, trust deeds, etc., pp. 4 and 5 [book E, p. 109]; in Franklin county, in book 6, p. 40, and in trust book No. 1, pp. 354-5-6. On July 28, 1877, the Memphis & Charleston Railroad Company sold this railway, together with the McMinnville & Manchester Railroad, to the Nashville, Chattanooga & St. Louis Railway, for the sum of $320,000, in bonds and other considerations mentioned in the deed. This conveyance was registered in the register's office of Franklin county, book 1, pp. 553-555; in Lincoln county in book Z, pp. 216-221; in Coffee county in book P, pp. 453, 454; in Warren county in book 8, pp. 296-299. The deed is also inserted herein among the acts, deeds, etc., re- lating to the Winchester & Alabama Railroad. See next chapter. This was a legal purchase. Under the Acts of Tenn., 1871, eh. 69, which superseded the Acts of 1871, ch. 22, it was provided that, ''every railroad corporation in this state, whether created under a general or special law, shall have the power to acquire, by purchase or other law- ful contract, and have, hold, use, and operate, any railroad, with its franchise*, belonging to any other railroad corporation." What franchises, etc., passed to the Nashville, Chattanooga & St. Louis Railway under this Sale. In addition to the prop- erty, right of way, lands, tracks, etc., therein conveyed, the deed specifically provided for the transfer of all the right*, privileges, iminnnUiex, and f ranch i#t>x of the company. Sec- tion 1 of the charter of the railway provided that the said com- pany should "have and enjoy all the right* and privileges secured to the Nashville & Chattanooga Railroad Company by an act of the general assembly passed December 11, 1845, and 154: ABSTRACT OF TITLE TO FAYETTEVILLE BRANCH subject to all the restrictions contained in said charter, which said road shall be built and constructed agreeable to the require- ments of the aforesaid charter." This being so, the original Winchester & Alabama Railroad Company possessed all the rights and privileges of the Nashville & Chattanooga Railroad Company, and the latter company, as the lawful purchaser thereof, under the Acts of 1871, ch. 69, is now entitled to hold and operate the same, with all such rights and privileges. 1. For rights and privileges of the Nashville & Chattanooga Railroad charter, see ch. 1. See, also, general discussion herein under Eminent Domain, Right of Way, etc. Refer to index. 2. The legislature, in granting a charter to one railroad company, may lawfully confer upon it all the rights, easements, and franchises of another, by simply referring to it in the manner that this was done. See 8 Lea (Tenn.), 427'. Width Of right Of way. As the charter of the Winchester & Alabama Railroad Company conferred upon it all the rights and privileges of the Nashville & Chattanooga Railroad Com- pany, the latter company, as the lawful purchaser thereof, is now entitled over the line of this road from Decherd to Fayetteville and from Elora to the state line, to all the rights and privileges conveyed in sections 23 and 24 of its own charter, which gives a hundred feet on each side of the center of said road, when necessary for railway purposes, in the absence of any contract with the original landowner to the contrary. (5 Pick., 293.) For a general discussion of this and kindred subjects, together with the right and method of taking more than one hundred feet on each side of the center of the road, when necessary for railroad purposes, see Eminent Domain, Right of Way, herein. Refer to index. Where Winchester & Alabama Railroad Company incorpo- rated, termini. The Winchester & Alabama Railroad Com- pany was chartered by Acts Tenn., 1849-50, ch. 56, sec. 6, to construct a road from Winchester, Tenn., to the Alabama state line, in the direction of Huntsville. Subsequently, by Acts Tenn., 1851-52, ch. 43, the charter was amended so as to allow the company to extend the road from the town of Win- chester to the Nashville & Chattanooga Railroad. Under this authority the road was built to Decherd. Again, by Acts Tenn., 1851-52, ch. 206, p. 310, sec. 7, the company was au- thorized to construct its road to Fayetteville, with all the rights, NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 155 powers, and privileges given to said company by their original charter and acts amendatory thereof. Under this authority the road, from a point at or near Elora, was built to Fayetteville. The road from Elora to the state line in the direction of Hunts- ville was built under the original charter. See al>ove Acts of 1851-52 in next chapter. The road was also chartered by the State of Alabama (Acts 1855-56, No. 312, p. 314) so as to u begin at a point on the state lino between Alabama and Ten- nessee, where the Tennessee part of the road strikes the said line, so as to connect, and to extend from there through Madison county in the direction of the Tennessee river, within three- quarters of a mile of the village of New Market, continuing by or near Brownsborough through the valley of Flint river, pass- ing close by the village of Vienna, on the Tennessee river, at the nearest and most practicable point for connecting with the Alabama & Tennessee River Railroad, pursuing as nearly as possible the route heretofore surveyed for said road." This charter was subsequently amended by Acts Ala., 1857-58, No. 152, p. 162, so as to authorize and empower the company to extend the railroad across the Tennessee river at the most practicable point, and from thence through Marshall county to the gap of Sand Mountain called Davidson's Hollow, and also to connect with the Tennessee & Coosa Railroad. That part of the road, however, covered by the Alabama charter was never built, and hence the charter and amendment granted by that state, as referred to above, will not be inserted herein. The road from the Tennessee state line to Huntsville, Ala., was subsequently built under the charter of the Hunts- ville & Elora Railroad Company. Distance built wben purchased by Nashville. Chattanooga & St. Louis Railway. Only the line from Dec-herd to Fayette- ville had been constructed when purchased by this company. The road from Elora to the state line has subsequently teen built under the original charter by this company, as therein provided for. The road from the state line to Huntsville, Ala., was built by this company under the charter of the Huntsville & Elora Railroad Company, after it had purchased 156 ORIGINAL CHARTER OF THE FAYETTEVILLE BRANCH said road, which charter was granted by the State of Alabama; the line from Fayetteville to Petersburg was built by this com- pany under the charter of the Duck River Valley Narrow Gauge Railroad Company, while lessee of said road; the road from Petersburg to Columbia had previously been constructed by the Duck River Valley Narrow Gauge Railroad Company. The entire line from Fayetteville to Columbia was subsequently purchased by the Nashville, Chattanooga & St. Louis Railway. For charters of Duck River Valley Narrow Gauge Railroad Company, and Huntsville & Elora Railroad Company, together with terms and conditions of purchase, see index. ORIGINAL, CHARTER OF THE WINCHESTER & ALABAMA RAILROAD COMPANY. [!N TENNESSEE.] Acts Tenn., 1849-50, ch. 56, sec. 6. SEC. 6. Incorporation, name, general powers. Be it en- acted, That the formation of a company is hereby authorized for the purpose of constructing a railroad from Winchester to the Alabama line, in the direction of Huntsville, Alabama, which company shall consist of the stockholders; and, when formed, shall, and they are hereby, constituted a body cor- porate, by the name and style of the Winchester & Alabama Railroad Company, and said company, by their corporate name, shall have power to sue and be sued, plead and be impleaded, in all the courts of this state, or the United States, and shall have and enjoy all the rights and privileges secured to the Nashville & Chattanooga Railroad Company, by an act of the general assembly passed December 11, 1845, and subject to all the restrictions contained in said charter, which road shall be built and constructed agreeable to the requirements of the aforesaid charter. 1. Sections 1-5, inclusive, of the act of the legislature in which this company was chartered, related to other matters. Section 6 of the act was the commencement of the charter. 2. Bight to extend road to Nashville & Chattanooga Railroad. This section was amended by Acts Tenn., 1851-2, ch. 43, so that the railroad incorporated above should extend from the town of Winchester to the Nashville & Chattanooga Railroad. Act passed December 5, 1851. Under this authority the road from Winchester to Decherd was built. NASHVILLE, CHATTANOOGA 5-6, No. 312, p. 314, which was amended by Acts of 1857-8. p. 162. As that part of the road covered by the Alabama charter was never built, however, it is useless to insert said charter in this com- pilation. Reference is made to it here as a matter of history. 6. Right to extend road to Fayetteville. This railway was char- tered to run from Winchester to the state Hue, in the direction of Hunts- ville, Ala. When it had been built to a point at or near Elora, Tenn.. the legislature of Tennessee passed an act allowing it to extend its road to Fayetteville, which was done. See Acts Tenn., 1851-2, ch. 206, p. 310, sec. 7. which act is inserted in the next chapter. The road from Elora to the state line was built under the original charter. 7. The legislature, in granting a charter to one railway, may lawfully confer upon it all the rights, franchises, etc., of another, by simply referring to it in the manner that this was done. See 8 Lea, 427. SEC. 7. Capital, value of shares, books opened, commis- sioners. Be it enacted. That the capital stock of said com- pany shall be twenty-five thousand dollars, to be divided into shares of twenty-five dollars each; and books for Valueof subscription of stock in said railroad shall be opened shares - on the first Monday of July, 1850, and kept open for one month every day, Sundays excepted, from 10 o'clock A.M. Books until 4r o'clock P.M., at the following places, and by i* ne(J - the following persons, to wit: At Winchester, by James Har- ris, W. W. Braxeton, Maj. Win. C. Venable, lien- Con , misslon . jamin Deckard, and Dr. Wallace Estill ; at Salem, ers - by William C. Handley, John P. White, George Mosely, Charles P. Blanton, and Robert C. Smith. This section was amended by Acts Tenn., 1851-2, ch. 43, so as to allow the increase of the capital stock of said company to seven hundred thousand dollars; and that to entitle any stockholder to act as a director he shall only be required to own stock to the amount of five hundred dollars. (Act passed December 5, 1851.) SEC. 8. Commissioners to act until directors elected.^ it enacted, That William E. Venable, Dr. William Estill, Jos. 158 DEED, ETC., RELATING TO FAYETTEVILLE BRANCH W. Carter, Peter S. Deckard, Alfred Henderson, Thomas Finch, Hugh Francis, George W. White, Thomas H. Garner, George W. Hunt, David Arnett, S. S. Mathews, Thomas F. Mosely, Clinton A. Hunt, and John Handley, or a majority of them, be, and they are hereby, constituted a board of commis- sioners to superintend and manage all the affairs of said com- pany, until it shall be fully organized, by the election of a board of directors, as prescribed by the charter of the Nashville & Chattanooga Railroad Company. (Acts Tenn., 1849-50, ch. 56, p. 167; passed February 9, 1850. 1. Qualification of directors. By Acts 1859-60, ch. 90, p. 343, sec. 20, it was provided ''that any person holding any amount of stock in the Winchester & Alabama Railroad Company shall be eligible to be a direc- tor in said road or company. *' 2. May use T rail. By Acts Tenn., 1866-67, ch. 48, p. 130, this com- pany was authorized, in rebuilding its road, to use solid T rails of not less than fifty pounds to the lineal yard, and all branch roads which may wish to use such bars, fifty pounds to the yard. CHAPTER VIII. DEED TO, AND ACTS RELATING TO THE WINCHESTER & ALA- BAMA RAILROAD COMPANY. DEED FROM MEMPHIS & CHARLESTON RAIL- WAY COMPANY TO NASHVILLE, CHATTA- NOOGA & ST. LOUIS RAILWAY COMPANY, OF WINCHESTER & ALABAMA RAILROAD AND THE McMINNVILLE & MANCHESTER RAILROAD. This deed, made and entered into by and between the Mem- phis & Charleston Railway Company, the party of the first part, and the Nashville, Chattanooga & St. Louis Railway Company, the party of the second part, both of said parties being corpora- tions chartered by the State of Tennessee, witnesseth : The party of the first part, for and in consideration of the receipt from the party of the second part of three hundred and twenty thousand NASHVILLE, CHATTANOOGA elonging and 160 DEED, ETC., RELATING TO FAYETTEVILLE BRANCH appertaining to said railroad; and also all the tools, incomes, uses, and profits to be had or demanded from the same or any part or portion thereof; and also all railway stations and de- pots, with all the appurtenances necessary and convenient for the sole, complete, and entire use and operation and mainte- nance of the said road or railways herein conveyed, or any part of them; and also all the rolling sto'ck, locomotives, engines, tanks, cars, carriages, tools, and machinery on said roads, or any of them, at the date of this deed; and also all the improve- ments and additions made to any or all of said properties, es- Rignts, privi- tates, roads, railways, and appurtenances also all ties, and fran- the rights, privileges, immunities, and franchises of chises con- veyed, the party of the first part, pertaining to the roads and railways herein conveyed, or any of them, or the oper- ation, use, and enjoyment thereof; and also all right to use the road, tracks, sidings, turnouts, and switches belonging and appertaining to said road hereby conveyed, or either of them, as fully and effectually as the party of the first part is or may be by law entitled to have, hold, and use the same, and the said party of the first part hereby covenants and agrees to and with the said party of the second part, its successors and assigns, that the title to the property hereby conveyed is free from all in- cumbrances, and that it will forever warrant and defend the title to said property against the lawful claims of all persons whomsoever. The said party of the first part hereby also assigns, trans- fers, and conveys to the party of the second part its right of indemnity indemnity secured by the deposit of certain bonds ferred. in the Fourth National Bank in Nashville, Tenn., to indemnify the said party of the first part against loss, det- riment, or damages from a certain suit of the United States against the McMinnville & Manchester Railway; and also the contract of indemnity made by the State of Tennessee with the party of the first part to indemnify against said suit. As a further consideration for this conveyance, the party of the second part stipulates that it will run and manage the rail- roads as required by the contracts of purchase made by the NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 161 pjirty of the first part with the State of Tennessee at the time it purchased them from said state. In witness thereof, the said parties of the first and second l>:irts, by their respective presidents and secretaries, pursuant to the authority granted by their respective boards of directors, have hereunto subscribed their names and affixed their cor- porate seals, this, the twenty-eighth day of July, 1877. THE MEMPHIS & CHARLESTON RAILROAD COMPANY, In presence of By R. T. WH.SON, President. W. H. CLARKSON, as to R. T. WILSON, 1'i'exident. [SEAL.] By THE MEMPHIS & CHARLESTON RAILWAY Co., By T. R. CRUSE, Secretary. [SEAL.] NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, R. C. BRANSFORD, By E. W. COLE, President. Secretory Naxlwille, Chattanooga & St. Louis Railway. ' The foregoing- deed, with acknowledgments, etc., is registered in Franklin county, in book 1, pp. 553-555; in Lincoln county, in book Z, pp. 216-221; in Coffee county, in book P, pp. 453, 454; and in Warren county, in book 8, pp. 296-299. DECREE VESTING TITLE TO WINCHESTER & ALABAMA RAILROAD AND McMINNVILLE & MANCHESTER RAILROAD IN MEMPHIS & CHARLESTON RAILROAD COMPANY. THE STATE OF TENNESSEE r. THE EDGEFIELD & KENTUCKY RAILROAD COMPANY, McMiNNvrLLE & MANCHESTER, C. N., WINCHESTER & ALABAMA, C. M., ET AL. CHANCERY COURT AT NASHVILLE, TEXN. Be it remembered, That on the twenty-eighth day of June, 1875, before the Hon. Thomas Malone, presiding as special chancellor, regularly and legally appointed vice the Hon. Wil- liam T. Cooper, chancellor, who is of counsel herein, this cause came on to t>e finally heard as to the Winchester & Alabama Railroad Company and the McMinnville & Manchester Railroad Company, on the report of the commissioners for the sale of de- delinquent railroad and accomj)anying vouchers therewith filed; 11 162 DECREE RELATING TO FAYETTEVILLE BRANCH which report and vouchers being read, heard, and understood, and being unexcepted to, is in all things confirmed. And from said report, the accompanying vouchers, and the former proceed- ings, reports, and decrees of this court in the cause, it appears to the satisfaction of the court, and it is hereby ordered, adjudged, and decreed, that the Memphis & Charleston Railroad Com- pany is, under the decrees, sales, and confirmative decrees of sales in this cause, the purchaser of the Winchester & Alabama Railroad and the .McMinnville & Manchester Railroad, with their irons, equipments, right of way, real and personal prop- erty, franchises, and privileges; and that the said Memphis & Charleston Railroad Company has fully and entirely, in com- pliance with the sales aforesaid, paid to the State of Tennessee, as shown by said report and vouchers, the purchase price of said railroad in state bonds and money, as required by the terms of said sales and purchases and by the former decrees of this court, and this court being of opinion that the Memphis & Charleston Railroad Company is entitled to a final decree vest- ing said company with the absolute titles to said railroads, their property and franchises: Now, therefore, it is hereby ordered, adjudged, and decreed, that all the right and title of the state and of all parties to this litigation, and especially of the Winchester & Alabama Rail- road Company, its stockholders and creditors and all other persons interested therein, in and to the Winchester & Alabama Railroad, its property, real, personal and mixed, and all its franchises and privileges, be divested out of them and vested in the Memphis & Charleston Railroad Company forever, free from and finally discharged of all liens and charges existing heretofore, but subject to the terms, stipulations, and condi- tions of the contracts, except as to the purchase money paid, all of which is finally ordered and decreed. At the request of the Memphis & Charleston Railroad Company, the divesting and vesting of the title in and to the McMinnville & Manches- ter Railroad, its property and franchises, is deferred until the Memphis & Charleston Railroad Company directs and requests how and to whom it shall be made. The clerk and master will NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 1H3 furnish the Memphis & Charleston Railroad Company with a certified copy of the decree for registration. The above decree may be found in minute book No. 2, p. 438, of the chancery court at Nashville. Tenn. It is also registered with proper certificates in the register's office of Warren county, in book 7, No. 7, pp. 72, 73; in Coffee county, in book vol. No. 2 (trust deeds, etc.), pp. 4 and 5. ACTS TENNESSEE RELATING TO WINCHESTER & ALABAMA RAILROAD COMPANY. 1. Winchester & Alabama Railroad Company authorized to extend road from Winchester to Nashville, Chatta- nooga & St. Louis Railway; capital increased. SECTION 1. Be it enacted by the General Assembly of tlte State of Tennessee, That the sixth section of an act passed the ninth day of February, 1850, ch. 56, entitled, "An act to charter a railroad from Nashville to the Alabama line," be, and the same is hereby, so amended as that the railroad incor- porated by virtue of the provisions of the above recited act, called the Winchester & Alabama Railroad Company, shall extend from the town of Winchester to the Nashville & Chatta- nooga Railroad. SEC. 2. Be it enacted, That the seventh section of said act of incorporation be, and the same is, amended so as to increase the capital stock of said company to seven hundred Caplta , thousand dollars, and that, to entitle any stock- Increase<1 - holder to act as a director in said company, he shall only be required to own stock to the amount of five hundred dollars. (Acts Tenn., 1851-52, ch. 43, p. 45; passed December 5, 1851.) 2. Winchester & Alabama Railroad Company authorized to construct road to Fayetteville, how. SEC. 7. Be it further enacted, That when fifteen thousand dol- lars additional stock in the Winchester & Alabama Railroad Company shall be taken by citizens of Lincoln county, or by others in their behalf, said company shall have j>ower to extend their main trunk road to Fayetteville, in said county, with all the rights, powers, and privileges given to said company by 164 ACTS RELATING TO FAYETTEVILLE BRANCH their original charter, and all the acts passed amendatory thereof, and said extension shall, to all intents and purposes, be and form a part of the main trunk of said road, as fully and effect- ually as if the same had been authorized by the original charter or the amendments as aforesaid; and should said company con- struct their said railroad to Fayetteville in the same manner and style of work as required by the charter aforesaid, then the charter herein granted to the Central Union Railroad shall be void. (Acts Tenn., 1851-2, ch. 206, p. 310, sec. 7; passed February 18, 1852.) 3. Resolution directing investigation of condition of road. By Acts Tenn., 1868-9, ch. 27, p. 379, the committee on internal improvements was directed to examine into the condi- tion of this road and report to the general assembly. 4. State aid to tbe Winchester & Alabama Railroad. Many acts of the legislature of the State of Tennessee were passed authorizing state aid to be granted to the Winchester & Alabama Railroad for the purpose of building and equipping its road. The state aid was given by having the governor to in- dorse the bonds of the road on behalf of the state. These acts are quite lengthy, and are so seldom required, that for the pur- pose of space and economy it is not deemed advisable to insert them in full in this compilation, but simply to refer to the act and page where they can be found. Below will be found all acts relating to this subject, set out in the order of their passage: Acts 1851-2, ch. 151, governor authorized to issue bonds on certain conditions. For conditions, see act. Acts 1853-4, ch. 131, sec. 1, state aid to the extent of $10,- 000 a mile within the limits of state. Acts 1855-6, ch. 54, p. 63, allows two years extra time for company to bring itself within provisions of Acts February 8, 1854. Acts 18556, ch. 120, p. 143, sec. 9, bonds of state author- ized to be issued to amount not exceeding $50,000, to aid in NASHVILLE, CHATTANOCMIA onds of the state with coupons of January, 1871, attached, and a decree was entered accordingly in minute book T, pp. 358, 359. On July 6, 1871, the court adjudicated many matters in- volved. See decree in minute book T, p. 3*59. 168 ABSTRACT OF TITLE TO M'MINNVILLE BRANCH On September 30, 1871, a decree was entered reciting, among other things, that the clerk and master had sold the Mc- Minnville & Manchester Railroad to the company itself. See minute book T, p. 528. The McMinnville & Manchester Railroad Company never complied with the terms of sale, and, on June 28, 1875, another decree was entered confirming the sale of this road and the Winchester & Alabama Railroad, together with their rights, franchises, etc., to the Memphis & Charleston Railroad Com- pany. See minute book No. 2, p. 438, which decree was duly registered in the register's office of Warren county, in book 7, No. 7, pp. 72, 73; in Coffee county, in book vol. No. 2, trust deeds, etc., pp. 4, 5 [book E, p. 109]; in Franklin county, in book 6, p. 40, and in trust book No. 1, pp. 354-5-6. 1. This decree is also set out herein, in the preceding- chapter, among the decrees, acts, etc., relating- to the Winchester & Alabama Railroad Company. 2. It will be noticed that the above referred to decree did not divest and vest title to the McMinnville & Manchester Railroad in the Memphis & Charleston Railroad Company, but reserved that until the said Mem- phis & Charleston Railroad Company should determine in wham the title should be vested. Subsequently, however, on July 10, 1875, the Memphis & Charleston Railroad Company elected to have the title to this road also taken in its own name, and a decree was entered accordingly. See minute book No. 3, p. 58, which decree is also set out herein in next chapter. On July 28, 1877, the Memphis & Charleston Railroad Com- pany sold this road, together with the Winchester & Alabama Railroad, to the Nashville, Chattanooga & St. Louis Railway, for the sum of $320,000 of 6 per cent, currency bonds exe- cuted by the latter company January 1, 1877, and other con- siderations. See deed in preceding chapter. This deed was duly acknowledged and registered in the register's office of Franklin county, in book 1, pp. 553-555; in Lincoln county, in book Z, pp. 216-221; in Coffee county, in book P, pp. 453, 454; and in Warren county, in book 8, pp. 296-299. This purchase was legal. Under Acts Tenn., 1871. ch. 69, which superseded the Acts of 1871, ch. 22, it was provided that "every railroad corporation in this state, whether created under a general or special law, shall have the power to acquire by purchase or other lawful con- tract, and have, hold, use, and operate, any railroad, with its franchises, belonging to any other railroad company." NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 169 What franchises, etc . passed to Nashville. Chattanooga & St. Louis Railway under this Sale. In addition to the prop- erty, right of way, lands, tracks, etc., therein conveyed, the deed from the Memphis & Charleston Railroad Company of the McMinnville & Manchester Railroad, above referred to, specifically provided for the transfer of all the rights, privi- leges^ immunities, and franchuw* of that company. These rights, franchises, etc., are largely set out in the charter, and amendments thereto, of the McMinnville & Manchester Rail- road, which may be found further on in this chapter, but, by Acts Tenn., 1851-2, ch. 269, p. 462, sec. 5, all the rights, powers, and privileges of the Nashville c Chattanooga Rail- road charter were also conferred upon that company. This being so, the Nashville, Chattanooga & St. Louis Railway, as the lawful purchaser thereof, is now entitled, on the line of that road, to all the rights, franchises, etc., of its own charter as well as those contained in the charter of the said McMinn- ville & Manchester Railroad Company, and amendments thereto. 1. For franchises, etc., contained in charter of Nashville fe Chatta- nooga Railroad Company, see ch. 1, herein. 2. By decree of July fi, 1871, as entered in minute book Y, p. 369, of the chancery court at Nashville, Tenn., and decree of June 28, 1875, as entered in minute book No. 2, p. 438, all the rights, privileges, immuni- ties, franchises, etc., of the McMinnville & Manchester Railroad Com- pany were vested in the Memphis fe Charleston Railroad Company. Hence, the latter company, under the Acts of 1871, ch. 69, and acts amendatory thereof, could make a legal transfer of the same to the Nashville, Chattanooga fc St. Louis Railway. 3. The legislature may lawfully confer upon one company all the rights, franchises, etc., of another, by simply referring to it in the man- ner that this was done. See 8 Lea (Tenn.), 427. Width Of right Of way. The Nashville, Chattanooga & St. Louis Railway having become the lawful purchaser of the road, right of way, easements, franchises, etc., of the McMinn- ville & Manchester Railroad Company, as above explained, it is now entitled to the franchises contained in sees. 21 and 22 of its charter, as well as to sees. 23 and 24 of its own charter over the line of that road, which give one hundred feet on each side of the center of *the road, in the absence of any contract with the original landowner to the contrary. (5 Pick., 293.) For a general discussion of this and kindred subjects, together with the right and method of taking more than one hundred feet on each side 170 ORIGINAL CHARTER OF M^MINNVILLE BRANCH of the center of the road, when necessary for railroad purposes, see Eminent Domain, Right of Wody corpo- rate, by the name and style of the McMinnville & Manchester Railroad Company, and by said corporate name shall be capable in' law to buy, receive by gift, hold, sell, and convey real and personal estate, as hereinafter provided, make contracts, sue and be sued, to make Genera , by-laws, and to do all lawful acts properly incident P wers - to a corporation, and necessary and proper to the transaction of the business for which it is incorporated, and to have and use a common seal, and the same to alter and destroy at its pleasure, and shall have perpetual succession of its members. 1. General powers. Hy Acts Term., 1851-52, ch. 269, p. 462, sec. 5, this charter was amended so that the company should have and enjoy all the rights, powers, and privileges, and be subject to all the liabilities and restrictions, prescribed in the charter of the Nashville fc Chattanooga Railroad Company, and amendments thereto, except as provided other- wise therein. See act itself set out herein in next chapter. 2. Scale of voting. Hy same acts, sec. 6, a settle of voting was pro- vided. See act in next chapter. 3. Location. By same act, sec. 10. the road was required to be located on the nearest and most practicable route to Nashville & Chattanooga Railroad Company from McMinnville, to be judged of by the president and directors. See act in next chapter. 4. By same act, sec. 11, the charter of this company was extended from McMinnville to Sparta, on condition that the people of White county make the same to McMinnville. See act in next chapter. SEC. 2. Capital, value of shares, books opened, commis- sioners. Books for subscription of forty thousand shares of the capital stock of said company, of twenty-five dollars each, shall be opened on the first Monday in April next, 1850, and shall be kept open for six days, between the hours of ten o'clock in the morning and four o'clock in the evening of each of those days, at the following places, and by the following commis- sioners, to wit: At McMinnville, by William White, William C. Smartt, Geo. R. Smartt, Stokely I). Rowan, L. Comm!sslon . D. Mercer, J. Woodla, R. A. Campl>ell, and Alex- ers - ander Black; at Manchester, by W. P. Hickerson, W. R. Wil- son, M. Stevens, W. Sherrel; at Hillsboro, by B. T. Hollins, Joseph Howe, and J. Charles. 172 ORIGINAL CHARTER OF M 5 MINNVILLE BRANCH Capital stock increased. By Acts 1851-2, ch. 269, p. 462, sec. 6. the capital stock of this company was increased to 8100,000, and the com- pany was granted power to increase it to $500,000. SEC. 3. Subscriptions to StOCk, payment. The said com- missioners, or a majority of them, at each of the places afore- said, shall receive subscription for stock in the said railroad company during the time the said books are directed to be kept open, and on each share so subscribed shall demand and receive the sum of fifty cents, without which the subscription shall be void. SEC. 4. Deposit of money, commissioners; incorporation perfected, When. As soon as the time for receiving subscrip- tion, as aforesaid, shall have expired, the said commissioners shall, respectively, deposit all the money so received by them in some incorporated bank redeeming its notes in specie, to the credit of the McMinnville & Manchester Railroad Company, and subject to the order of the president of the board of com- missioners hereinafter appointed, and shall also forward a correct list of all the subscribers to the said stock, with the number of shares each subscriber has taken, to a board of commissioners Commis- * be composed of the following persons: William sioners. c Smartt, W. M. White, George R. Smartt, David Ramsey, Sr., George Stroud, Thomas Mabry, W. P. Hickerson, W. R. Wilson, B. T. Hollins, and Joseph Howe, who may establish rules to govern their proceedings, choose their own president, and appoint such other officers and agents as they may think proper, and prescribe their duties, and who, or a majority of whom, shall meet at McMinnville on the third Monday in January next, ascertain the whole number of shares taken in the said company, and publish the same in some news- paper printed in McMinnville, on or before the fourth Monday in January next, and if the number of two thousand five hun- dred shares shall have been subscribed, on each of which there shall have been paid the sum of fifty cents, the McMinnville & Manchester Railroad Company shall be regarded as formed, and tnenceforth and from the day of closing the books of subscription as aforesaid; and said sub- scribers to the stock shall form a body politic and corporate in NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 173 deed and in law, by the name and for the purpose aforesaid, and in all things to \te represented by the board of commis- sioners aforesaid, until the election of a board of directors, as hereinafter presented. SEC. 5. Books kept open, when; incorporation, commis- sioners. If, on closing the books aforesaid, the number of two thousand five hundred shares shall not have been sub- scribed, then, and in that case, the said board of commis- sioners, by themselves or their agents, may receive subscrip- tions till the sum of two thousand five hundred shares be taken; and whenever that number of shares shall be subscril>ed, the company shall IHJ considered as formed, as having . , , . , , , , . , Incorporation, a corporate existence as aforesaid, and of which notice shall be given as hereinafter directed, and may proceed to survey the route for the road, and to make an estimate of the cost of its construction; nevertheless, no conclusive and binding location of the road shall be made by the board of commissioners, but the same shall be left to the determination of the first board of directors chosen by the stockholders, and the said l>oard of commissioners may, by themselves or their agents, at such times and places as they may think proper, and upon such terms as to time and manner of payment as they may deem expedient, receive additional subscriptions until the number of two thousand five hundred shares shall have been subscril)ed, upon which the company may be formed, and the subscribers shall thenceforth form a body corporate as afore- said: Provided, The same shall be done on or before the first day of January, 1852; and for the residue of the original num- ber of forty thousand shares, the said corporation, when organ- ized, may, in like manner, receive additional subscriptions. SEC. 6. Reduction Of Shares. In case more than forty thou- sand shares shall have been subscril>ed, on closing the books, when they are first opened, the shares shall be reduced to that numl>er by deducting the surplus shares from the highest sub- scribers, placing them on equality of numl>ers as far as can be done, and, after such reduction, the holders of the remaining shares shall form the company, and be interested therein in 174: ORIGINAL CHARTER OF IVTMINNVILLE BRANCH proportion to the number of shares which they may then re- spectively hold. SEC. 7. Money returned if shares not subscribed. If, on closing the books on the first day of January, 1852, the num- ber of two thousand five hundred shares^ shall not have been subscribed, the money paid by each subscriber shall be returned to him by the said board of commission- ers, after defraying the expenses of opening the books, and making a survey and map of the route, and estimate of the cost of the road, which said commissioners are hereby author- ized to have made as soon as practicable. SEC. 8. President and directors, how chosen. The affairs of said company shall be managed by a board of directors, to Board of consist of , who shall be chosen by the directors. stockholders from their own body, and a president of the compan} 7 shall be chosen by the directors from among their own members, in such a manner as the regulations of the corporation shall prescribe. 1. By Acts Term., 1855-56, ch. 181, p. 281, any stockholder of the com- pany, without regard to the number of shares he owned, was made eligible to election as director. 2. The president and directors of the entire system of the Nashville, Chattanooga & St. Louis Railway, of which this road now forms a part, are elected under the charter of the Nashville. Chattanooga & St. Louis Railway. See section 8 of said charter, in chapter 1 herein. SEC. 9. Stockholders' first meeting, directors' election, by-laWS, hOW enacted. As soon as the number of two thou- sand five hundred shares shall have been subscribed, it shall be the duty of the commissioners appointed to declare the same, to appoint a time for the stockholders to meet at McMinnville, and to give notice thereof by publication in - - newspaper, at which time and place the said stockholders, in person or by Elections- P rox J> shall proceed to elect the directors of the by-laws. company and to enact all such regulations, rules, and by-laws as may be necessary for the government of the corporation and the transaction of its business. The persons elected directors at this meeting shall serve for such period, not exceeding one year, as the stockholders may direct, and at this meeting the stockholders shall fix on the day and the place NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 175 or places where the subsequent elections for directors shall be held, and such elections shall thenceforth be annually made; but if the day of annual elections should pass without any elec- tion of directors, the corporation shall not be thereby dissolved, but it shall l>e lawful on any other day to hold and make such elections, in such manner as may be prescribed by the by-laws of the corporation. SEC. 10. Vacancy in board, how filled. The board of di- rectors may fill up all vacancies that may occur in it during the period for which their board shall have been elected; and in the absence of the president, may till his place by the election of a president pro tempore. See sec. 10 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1. herein, as all corporate business of the entire system is now trans- acted under that charter. SEC. 11. Contracts and agreements binding without seal. All contracts and agreements authenticated by the president of the board, shall be binding on the company without seal, or such other mode of authentication may be used as the company by their by-laws may adopt. See notes to sec. 11 of charter of Nashville, Chattanooga & St. Louis Railway herein. SEC. 12. Liability Of directors. The board of directors shall not exceed, in their contracts, the amount of the capital of the corporation and the funds which the company may contracts not have borrowed and placed at the disposal of the funds board; and, in case they should do so, the president and direct- ors who may be present at the meeting at which such contracts so exceeding the amount aforesaid, shall be jointly and sever- ally liable for the excess, lx>th to the contractor and contractors and the corporation; l*i'ovid<>d. That anyone may discharge himself from such liability by voting against such contract or contracts, and causing such vote to l>e recorded on the minutes of the board, and giving notice thereof to the next general meeting of the stockholders. .See notes to sec. 12 of charter of Nashville, Chattanooga A- St. Louis Railway, herein. 176 ORIGINAL CHARTER OF M'MINNVILLE BRANCH SEC. 13. Exclusive transportation, rate of charge. The said company shall have the exclusive right of transportation or conveyance of persons, goods, merchandise, and produce over the said railroad by them to be constructed; Provided, That the charge of transportation or conveyance Rates of toll. r shall not exceed thirty-five cents per hundred pounds on heavy articles, and two cents per cubic foot on arti- cles of measurement, for every hundred miles, and five cents per mile for every passenger; And provided also, That said company may, when they see fit, farm out their right of trans- portation on said road, subject to the rates above mentioned. See notes to sec. 14 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 14. Installments, SUitS for. The board of directors may call for the payment of twenty-four and a half dollars on Calls on each share of stock, in sums not exceeding two stock. dollars in every thirty days; Provided, That twenty days' notice be given of such call, in at least one public news- paper of the state in which any of the stockholders may reside; and a failure to pay, or secure to be paid, according to the rules of the company, any of the installments so called, afore- said, shall induce a forfeiture of the share or shares on which default shall be so made, and all payments thereon, and the same shall vest in and belong to the company, and may be restored to the owner or owners by the board of directors, if they deem proper, on the payment of all arrears on such shares and legal interest thereon; or the directors may waive the forfeiture after - - days' default, and sue the stockholders for the installments due, at their discretion. SEC. 15. Stock, hOW transferred. The stock of said com- pany may be transferred in such manner and form as may be directed by the by-laws of the said corporation. See notes to sec. 16 of charter of Nashville, Chattanooga & St. Louis Railway, chap. 1, herein. SEC. 16. Capital increased, hOW. The said company may at any time increase its capital to a sum sufficient to complete the said road and stock it with everything necessary to give it NASHVILLE, CHATTANOOOA eal is by the company requiring the surrender, they shall be at liberty to proceed in their works only on condition of giving to the opposite party a bond, with good security, to be approved of by the clerk of the court where the valuation is returned, in a penalty equal to double the said valuation, conditioned for the payment of said valuation and interest in case the same be sustained, and, in case it )>e reversed, for the payment of the valuation there- after to l>e made by the jury and confirmed by the court; Pro- vided, That when the land cannot be had by gift or purchase, the operations of the work are not to be hindered work not to be or delayed during the jxmdency of any proceeding gal process, to assess its value as aforesaid, nor shall any injunction or su- persedeas be awarded by any judge or court to delay the prog- ress of said work. See notes to sec. 24 of charter of Nashville. Chattanooga & St. Louis Railway, ch. 1, herein, for full discussion of this section. The sections are the same. SEC. 22. In absence of contract, right of way one hundred feet, When. In the absence of any contract with the said com- 180 ORIGINAL CHARTER OF M^MINNVILLE BRANCH pany, in relation to any lands through which the said road may Rights when P ass ? signed by the owner thereof, or by his agent, or presumed. claimant, or any person in possession thereof, which may be confirmed by the owner, it shall be presumed that the land upon which the said road may be constructed, together Right of way w ^ n a s P ace f one hundred feet on each side of the 100 ft., when. cen ter of the said road, has been granted to the company by the owner thereof; and the said company shall have good right and title thereto, and shall have, hold, and enjoy the same as long as the same be used only for the pur- poses of the road, and no longer, unless the persons or person owning the said road at the time that part of the road which may be on the land was finished, or those claiming under him, her, or them, shall apply for an assessment for the value of the said lands, as hereinbefore directed, within five years next after that part of said road was finished; and in case the said owner or owners, or those claiming under him, her, or them, shall not apply for such assessment within five years next after the said part was finished, he, she, or they shall be for- barr e ed C in V two ever Barred from recovering the said land or hav- removafo 6 / ^ n g an J assessment or compensation therefor; Pro- disability. vided, Nothing herein contained shall affect the right of femes covert, or infants until two years after the re- moval of their respective disabilities. See notes to sec. 25 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein, for full discussion of this section. The sections are the same. SEC. 23. Forfeiture and penalty for intrusion. if any per- son shall intrude upon the said railroad, or any part thereof, by any manner of use thereof, or of the rights and privileges connected therewith, without the permis- sion or contrary to the will of said company, he, she, or they shall forthwith forfeit to the said company all the vehicles that may be so intruded on said road, and the same may Penalty. be recovered by suit at law; and the person or per- sons so intruding may be indicted also for misdemeanor, and, upon conviction, fined and imprisoned by any court of compe- tent jurisdiction. See 3 Hum. (Tenn.), 481-483, for misdemeanor. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 181 SEC. 24. Obstructing or damaging road or bridge, punish- ment. If any person shall willfully and maliciously destroy or in any manner hurt, damage, or destroy the said railroad, or any bridge, or any vehicle used for or in trans|x>rtation thereon, such iHjrson or persons so offending shall .,.,,. , . Punishment, be liable to be indicted therefor, and, on convic- tion, shall be imprisoned not more than six months nor less than one month, and pay a tine not less than twenty dollars, and shall be further liable to pay all the expenses of repairing the same. See notes to section 27 of charter of Nashville, Chattanooga & St. Louis Railway, chapter 1, herein. SEC. 25. Obstruction a public nuisance. Every obstruction to the safe and free passage of vehicles on the said road shall be deemed a public nuisance, and may be abated as such by any officer, agent, or servant of the company, and the person caus- ing such obstruction may be indicted and punished for erecting a public nuisance. The word "obstruction," as used by railroad men, is not such a term of art as requires explanation bv an expert. 6 Heis. (Tenn.), 347. See, also, 3 Head, 522; 1 Hax., 55. SEC. 26. Storage Charges allowed, When. The said com- pany shall have the right to take, at the storehouse they may establish or annex to their railroad, all goods, R Je f wares, merchandise, and produce intended for trans- I*" 1 ** 10 "- ]K>rtation, prescribe the rules of priority, charge and receive such just and reasonable compensation for storage as they may, by rules, establish (which they shall cause to be published), or as may be fixed by agreement with the owner, which may be distinct from the rates of transportation; Provided, That the said company shall not charge or receive storage on goods, wares, merchandise, and produce which may be delivered to them at their regular de}M>sitories for immediate Nottoehlre transportation, and which the company may have when - the power of transporting immediately. See notes to sec. 21) of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 27. Dividends paid, When. The profits of the company, 182 ORIGINAL CHARTER OF M'MINNVILLE BRANCH or so much thereof as the board of directors may deem advis- able, shall, when the affairs of the company will permit, be semiannually divided among the stockholders in proportion to the stock each may hold. See notes to sec. 30 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein, as all dividends are now paid under that charter. SEC. 28. Banking prohibited; may insure. The said com- pany is hereby expressly prohibited from carrying on any bank- ing operation, but may effect insurance on lives and property transported on the road. SEC. 29. Crossings Of roads and lands. Whenever in the construction of said road it shall be necessary to cross or in- tersect any established road or way, it shall be the duty of the company to construct said road across such established road or way, so as not to impede the passage or transportation of per- sons or property along the same, or where it shall be necessary to pass through the land of any individual, it shall be their duty to provide for such individual a proper wagon way or ways across said road from one part of his land to another. See notes to sec. 32 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 30. Additional powers. The said company shall have and possess such additional powers as may be convenient for the due and successful execution of the powers granted in this charter and for the successful construction and management of the work. See notes to section 33 of charter of Nashville, Chattanooga & St. Louis Railway, chapter 1, herein. SEC. 31. Charter, how amended. This charter shall be amendable from time to time by the legislature whenever the president and directors shall unanimously petition for amend- ments, specifying in the petition the nature of such amend- ments. See notes to section 34 of charter of Nashville, Chattanooga & St. Louis Railway, chapter 1, herein, for full discussion of this section. SEC. 32. Directors trustees in case of dissolution. If, by decree or otherwise, the said corporation shall be dissolved, the president and directors of said company are created trustees, NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 183 with such jK)\vers only as may be necessary to collect the debts due the company, preserve the property, pay the debts, and distribute the proj>erty and effects of the company to those who may l>e entitled thereto under the charter. Sci- notes to sec. 37 of charter of Nashville, Chattanooga fe St. Louis Railway, ch. 1, herein. SEC. 33. Exemption from taxation. The capital stock of the company shall l>e exempt from taxation until the dividends amount to six per cent., and the road, with all its fixtures and appurtenances, shall be exempt from taxation ior the period of twenty years from the completion of the road, and no longer. See notes to sec. 38 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 34. Road to be commenced and completed, when. The railroad authorized by this act shall be commenced within three years after the passage of this act, and shall be finished within six years thereafter; otherwise, the charter hereby granted shall be void. (Acts Tenn., 1849-50, ch. 259, p. 497; passed February 4, 1850.) By Acts 1851-2, ch. 269, p. 462, sec. 8, the company was granted ten years to complete the road and five years to begin the construction thereof. CHAPTER X. DECREES AND ACTS RELATING TO AND AMENDING CHARTER OF McMINNVILLE & MANCHESTER RAILROAD COMPANY. DECREE VESTING TITLE TO McMINNVILLE & MANCHESTER RAILROAD IN MEMPHIS & CHARLESTON RAILROAD COMPANY. STATE OF TENNESSEE v. EDOEFIELD & KENTUCKY RAILROAD COMPANY ET AL. This cause being again heard on this tenth of July, 1875, before the Hon. Thos. H. Malone, special chancellor, by reason of the incompetency of the chancellor, upon the previous pro- ceedings and the equities reserved by the decree entered on a 184 DECREES, ETC., RELATING TO M'MINNVILLE BRANCH former day of the present term, touching the vesting of the title of the McMinnville & Manchester Railroad, its property and franchises, by which such vesting was suspended until the Memphis & Charleston Railroad Company shall direct to whom the title is to be made, and it now appearing from a letter of W. Y. C. Humes, the solicitor of the Memphis & Charleston Railroad Company in this cause, to one of the solicitors of the state, under date of July 8, 1875, and filed with the papers, that the Memphis & Charleston Railroad Company desires and now directs that the title be made to it: It is therefore ordered, adjudged, and decreed that the title to the said McMinnville & Manchester Railroad Company, its property and franchises, as sold by the state commissioners, be, and the same is hereby, vested in the Memphis & Charleston Railroad Company, its successors and assigns. And the clerk and master is authorized to give to the purchasers, for registra- tion, certified copies of this and the former decree at this term, upon demand and the payment of the proper charges. THOS. H. MALONE, Special Chancellor. Entered July 10, 1875, book No. 3, p. 58, chancery court, Nashville, Tenn. The McMinnville & Manchester Railroad was first bought by the com- pany itself under the proceedings instituted by the state to sell the road, as explained in preceding chapter. As the company failed to comply with the terms of sale, however, the road was again put up and sold, when the Memphis & Charleston Railroad Company bid it in, and on June 28, 1875, a decree was entered confirming the sale of the road, franchises, etc., to said company. See minute book No. 2, p. 43S, of the Chancery Court at Nashville, Tenn. Said decree was registered in Warren county, in book 7, p. 72, 73; and in Coffee county, in book vol. 2 (trust deeds, etc.). pp. 4, 5. It will be noticed from the decree, however, which is also inserted herein in ch. 8, that the Memphis & Charleston Railroad Company did not have the title vested in it in that decree, but reserved the matter. The above decree, therefore, was necessary. Charter amended ; rights, powers, and privileges of Nashville & Chattanooga Railroad Company conferred on McMinn- ville & Manchester Railroad Company ; capital increased ; scale of voting provided ; commissioners ; route located ; may extend to Sparta, how. SECTION 5. Be it further enacted, That the charter of the McMinnville & Manchester Railroad Company be so amended NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 185 as that said company shall have and enjoy all the rights, pow- ers, and privileges and l>e subject to all the liabilities and re- strictions prescril>ed in the charter of the Nashville & Chatta- nooga Railroad Company and in the various amendments thereto, except as herein further provided. SEC. 6. Be it enacted, That the capital stock of said com- pany shall be one hundred thousand dollars, to be divided into shares of twenty-five dollars each, and the company Cap | ta j stock shall have power to increase the capital stock to lncre sed - five hundred thousand dollars; and when one thousand shares of the capital stock are subscribed for, said company may or- gani/e by the election of a board of directors, who shall elect a president from their number, as prescribed in the charter of the Nashville & Chattanooga Railroad Company, and at all meetings of the stockholders, when a vote is to be taken, stock- holders may vote in person or by proxy, and, in the election of directors and in voting on all questions which coine before a meeting of stockholders, or which may be submitted to a de- cision of the stockholders in any other manner, the vote shall be taken according to the following scale: The owner of one or two shares shall be entitled to one vote; the owner g^,^ of not less than three nor more than four shares votln *- shall be entitled to two votes; the owner of not less than live nor more than six shares shall be entitled to three votes; the owner of not less than seven nor more than eight shares, to four votes; the owner of not less than nine nor more than eleven shares, to five votes; the owner of not less than twelve nor more than fifteen shares, to six votes; the owner of not less than sixteen shares nor more than twenty, to seven votes; the owner of not less than twenty-one shares nor more than twenty-six, to eight votes; the owner of not less than twenty- seven nor more than thirty-three shares, to nine votes; the owner of not less than thirty-four nor more than forty shares, to ten votes; and the owner of every ten shares alx>ve forty shall be entitled therefor to one vote; I'rov'uled, That no indi- vidual, corporation, or company shall be entitled to more than five hundred votes. 186 DECREES, ETC., RELATING TO M'MINNVILLE BRANCH SEC. 7. Be it enacted, That S. D. Rowan, L. D. Mercer, R. B. Cain, Wm. Smart, Dr. Davis, Win. H. Colson, M. Hoover, (/. Colson, Lawson Wileman, Joseph M. Howe, W. P. Hick- erson, - - Bashaw, R. B. Anderson, John Charles, Alexan- der E. Patton, Herndon Greene, Peter S. Decherd, Thomas C. Smart, H. H. Harrison, M. Hill, H. L. W. Hill, and Robert Commission- Webb be, and they are hereby, constituted a board ers< of commissioners, any seven of whom may act, to manage all the affairs of said company until it shall be organ- ized by the election of a board of directors, as aforesaid; to procure the subscription of stock, by the appointment of an agent or agents for that purpose, or in such manner as they may deem best; to provide for experimental surveys of routes for said railroad, and for the payment for making said surveys and for procuring said subscriptions, out of such calls on the stock subscribed for as they may deem advisable, out of the funds hereafter provided for, but they shall not be compelled to require any part of the stock subscribed for to be paid in cash, at the time it is subscribed for; and at all meetings of said commissioners they may vote in person or by proxy in relation to the affairs of the company before its organization as afore- said, and they shall require each subscriber to execute his note to the company for one dollar for each share of stock subscribed for by him, and it shall be lawful for the same to be sued for and recovered of such subscriber, in the name of the company, whether organized or not, to be used when paid in defraying the expenses incurred by the commissioners in the manner afore- said. SEC. 8. Be it further enacted, That said company shall have ten years to complete their said railroad, and shall have five Time to begin vears to begin the construction of said road; and and complete, whenever five miles of the road shall have been completed, said company may carry on its regular business on the same. SEC. 9. Be it enacted, That anything in the charter of the McMinnville & Manchester Railroad Company, inconsistent wit the provisions of this act, is hereby repealed. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 187 0. 10. Be it enacted, That in the locution of the McMinn- ville & Manchester Railroad, it shall be located on the nearest and most practical route to the Nashville & Chatta- nooga Railroad from McMinnville, to be judged of by the president and directors; Provided, That the thirteenth section of the act incorporating the Nashville & Chattanooga Railroad Company, shall not be a part of the charter of the said Southwestern Railroad Company, nor McMinnville & Manchester Railroad Company; And provided, That nothing in this act shall be so construed as to authorize the governor to indorse the bonds of said companies, nor shall the name of the road hereby incorporated control its location, but the same shall l>e left to the discretion of the president and board of di- rectors. SKC. 11. Be it enacted, That the charter of said road shall be continued from McMinnville to Sparta, on condition that the people of White county make the same to Me- May txtend to Minnville. (ActsTenn., 1851-2, ch. 269, p. 462; spam. how. passed January 31, 1852.) Charter amended, any stockholder may be director. SEC. 58. Be it further enacted, That from and after the pas- sage of this act, any stockholder of the McMinnville & Man- chester Railroad Company shall be eligible to election as di- rector of said company, without regard to the number of shares of stock owned by him in said company. (Acts Tenn., 1855-6, ch. 181, p. 281; passed February 27, 1856.) Town of McMinnville authorized to subscribe for stock in McMinnville & Manchester Railroad Company, how. SEC. 12. Be it enacted, That the mayor and aldermen of the town of McMinnville, in the county of Warren, in this state, shall have the same power, and in the same manner, to subscribe for stock in the McMinnville & Manchester Railroad Company, as the mayor and aldermen of the town of Franklin have to sub- scribe for stock in the Tennessee & Alabama Railroad Company or in any railroad company running near said town. (Acts Tenn., 1855-6, ch. 204, p. 384; passed February 26, 1855.) 188 DECREES, ETC., RELATING TO M'.MINNVILLE BRANCH Purchasers of McMinnville & Manchester Railroad at state sale authorized to be credited with any amount recov- ered by the United States, in suit against it, for iron, rails, etc., furnished. SECTION 1. Be it enacted, by the General Assembly of the State of Tennessee, That, in the event the United States shall recover any amount in the suit for the sum of sixty-seven thou- sand dollars, which the said United States has brought in the federal court, at Nashville, against the McMinnville & Man- chester Railroad Company for the value of iron, rails, material, and rolling stock alleged to have been furnished said company, and to secure which a lien was retained, with the right reserved to the United States to put a receiver in charge of said railroad, that the commissioners appointed to sell the delinquent rail- roads in the State of Tennessee be directed and authorized to credit the said company who purchased said road, with the amount of such recovery; Provided, That said McMinnville & Manchester Railroad Company shall not have the benefit of this act unless it, in good faith and to the satisfaction of said com- missioners, makes all proper and necessary defenses to said suit brought against it by the United States. SEC. 2. Be it further enacted, That this act take effect from and after its passage,/the public welfare requiring it. (Acts Tenn., 1872, ex. ses., p. 39, ch. 16; passed March 30, 1872.) Claims between State of Tennessee and United States in re- gard to McMinnville & Manchester Railroad authorized to be settled, how. WHEREAS, There are large and unsettled claims between the State of Tennessee and the United States government; and, WHEREAS, It is important that said claims should be ad- justed; therefore, SECTION 1. Be it enacted by tlie General Assembly of the State of Tennessee, That the governor of the State of Tennessee be, and he is hereby, fully authorized and empowered to settle with the government of the United States all the unadjusted claims between the Memphis, Clarksville & Louisville Railroad and said government; also all claims the State of Tennessee and NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 189 the McMinnville & Manchester Railroad Company hold against the government of the United States, and all claims the United States holds against said McMinnville & Manchester Railroad Company for damages done the McMinnville & Manchester Railroad, or damages done said company by the United States, or for iron, engines, rails, and other materials furnished said company; and, also, all other claims the State of Tennessee holds against the United States government in connection with Tennessee railroad interests. SBC. 2 SEC. 3. Be it further enacted, That this act take effect from and after its passage, the public welfare requiring it. (Acts Tenn., 1872, ex. ses., p. 35, ch. 13; passed March 30, 1872.) Comptroller authorized to settle with B. J. Hill, president and receiver of the McMinnville & Manchester Railroad. SECTION 1. Be it enacted by tfte General Assembly of the State of Tennessee, That the comptroller be authorized and di- rected to make full settlement with B. J. Hill, as receiver and late president of the McMinnville & Manchester Railroad. SEC. 2. Be it further enacted, That when said settlement shall have been made on or upon B. J. Hill's sworn statement, if there should be anything due said receiver for balance of salary, or for money exj>ended out of his own private means as such receiver for said road, that the comptroller issue his warrant upon the treasurer in favor of B. J. Hill, said receiver, for whatever amount found to be due him on final settlement. SEC. 3. Be it further enacted, That this act take effect from and after its passage, the public welfare requiring it. (Acts Tenn., 1875, ch. 52, p. 49; passed March 11, 1875.) State aid to McMinnville & Manchester Railroad. Many acts of the legislature were passed authorizing state aid to be granted to the McMinnville & Manchester Railroad for the pur- pose of building and equipping its road. The state aid was given by having the governor to indorse the bonds of the road on l>ehalf of the state. These acts are quite lengthy, and are so seldom required that for the puri>ose of space and economy 190 DECREES, ETC., RELATING TO M\MINNVILLE BRANCH it is not deemed advisable to insert them in full in this compila- tion, but simply to refer to the act and page where they can be found. Below will be found all acts relating to this subject, set out in the order of their passage: Acts 1851-2, ch. 151, governor authorized to issue coupon bonds, for amount not exceeding $8,000 per mile, on certain conditions. (For conditions, see act.) Acts 1853-4, ch. 131, sec. 1, state aid to the extent of $10,000 a mile. Acts 1855-6, ch. 120, p. 143, sec. 13, governor authorized to issue bonds to amount of $30,000, in constructing bridge across Barren Fork of Collins river, Hickory creek, and Duck river. Acts 1857-8, ch. 118, p. 301, governor authorized to issue bonds to. Acts 1865-6, ch. 14, p. 33, governor authorized to issue bonds to the Manchester & McMinnville Railroad to the amount of $346,000. Acts 1865-6, ch. 49, p. 75, governor authorized to issue bonds to amount of $54,000. Resolution authorizing postponement of sale of McMinnville & Manchester Railroad. WHEREAS, The purchasers of the McMinnville & Manchester railroad have made one payment of seventy-five thousand dol- lars, and are now in default one payment, for which the road is now advertised for resale by the state commissioners for the sale of delinquent railroads; and, WHEREAS, Since the sale and purchase aforesaid, the real purchasers, the Memphis & Charleston Railroad Company, in the lease of its main trunk, impaired, to some extent, its power to raise money; but, WHEREAS, The purchasers have come forward and shown not onl} 7 an honest purpose to comply with the contract, but a determination to do it if some indulgence is shown; therefore, Resolved by the Senate and House of Representatives, That NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 191 the state commissioners for the sale of delinquent railroads be, and they are hereby, instructed to postpone the resale of the McMinnville & Manchester Railroad until after the first of May of the present year, provided the purchasers, and such of the sureties as will l>e satisfactory to the commissioners, shall agree, in writing, to the same, and that the postponement shall in no way affect the rights of the state against them on their bond for the full amount which may be due thereon, nor the right of the state to enforce its lien upon the property. (AclsTenn., 1873, p. 202; approved January 28, 1873.) 192 ABSTRACT OF TITLE TO M'lIINHVILLE BRANCH CHAPTER XL THE SOUTHWESTERN RAILROAD COMPANY. . (Now FORMS PART OF MCMINNVILLE BRANCH.) How acquired by Nashville, Chattanooga & St. Louis Rail- way. Under the general improvement laws of 1851-52, and amendments thereto, the State of Tennessee, through its gov- ernor, indorsed the bonds of the various railroads in the state, to aid in their construction, retaining a lien on the respective roads so assisted as security therefor; among the number was the Southwestern Railroad Company. Default having been made in the payment of interest on the bonds issued for its benefit, a bill was filed in the chancery court at Nashville, Tenn., in the name of the state against the Edgetield & Kentucky Rail- road Company et als., to which the said Southwestern Railroad Company was also made a defendant, seeking to enforce the state's lien or statutory mortgage. This bill was filed, as ex- plained in other chapters, in pursuance of an act of the legisla- ture of 1870-71, ch. 23, p. 25, authorizing the sale of all de- linquent roads, the tenth section of which provided "that upon sale of any of the franchises of either of the railroad companies by the commissioners under the provisions of this act, all the rights, privileges, and immunities appertaining to the franchise so sold, under its act of incorporation, and the amendments thereto, and the general improvement laws of the state and acts amendatory thereof, shall be transferred to and vest in such purchaser, and the purchaser shall hold said franchise subject to all liens and liabilities in favor of the state, as now provided by law against the railroad companies. On June 8, 1871, a pro confesso was taken against the said Southwestern Railroad Company, as per decree entered in minute book T, p. 406, and on July 6, following, the amount of in- NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 193 debtedness of said road to the state was adjudicated at $553,790 and the road ordered sold. See minute hook T, p. 372. At the sale, the Southwestern Railroad Company itself be- came purchaser of its own road, franchises, etc. See minute book T, p. 507. Subsequently it sold them to the Nashville, Chattanooga & St. Louis Railway. At the date of the latter sale, however, only a small part of the road had been constructed, but the Nashville, Chattanooga & St. Louis Railway, under and by virtue of the rights, franchises, etc., it had acquired by the purchase of the road, together with the rights and franchises it had acquired by its purchase of the McMinnville & Manches- ter Railroad, as heretofore explained in chapter 9, completed the road to Sparta. The road from Sparta to Bon Air was built subsequently, under the charter of the Bon Air Railroad Company. 1. For charter of Bon Air Railroad Company, and how it was ac- quired, see index. 2. The Nashville, Chattanooga & St. Louis Railway could have ex- tended the road from McMinnville to Sparta under the charter and amendments of the McMinnville & Manchester Railroad Company, as by Acts Tenn., 1851-2, ch. 269, p. 462, sec. 11. the charter of said road was amended so as to permit it to be done, under the condition therein set out, which was subsequently performed. 3. The purchase of this road and its franchises by the Nashville, Chattanooga & St. Louis Railway was legal. Under the Acts of 1871, ch. 69. which superseded the Acts of 1871. ch. 22, it was provided that ''every railroad corporation in this state, whether created under a general or special law, shall have power to acquire by purchase, or other lawful contract, and have, hold, use, and operate any railroad, with its fran- chises, belonging to any other railroad company.'' Width Of right Of way. The Nashville, Chattanooga & St. Louis Railway having become the lawful purchaser of the road, right of way, easements, franchises, etc., of this company, together with those of the McMinnville <& Manchester Railroad Company, it is now entitled to all the rights, franchises, etc., contained in their charters. Section 1 of the charter of the Southwestern Railroad Company gave it all the rights, powers, and privileges contained in the charter of the Nashville & Chattanooga Railroad Company. Sections 23 and 24 of the latter charter gave a right of way of one hundred feet on each side of the center of the road in the absence of any written 13 194 ORIGINAL CHARTER OF SOUTHWESTERN RAILROAD CO. contract with the original landowners to the contrary. 5 Pick., 293. Sections 21 and 22 of the charter of the McMinnville & Manchester Railroad Company gave the same number of feet, and by Acts 1851-2, ch. 269, p. 462, sec. 11, the said charter was extended over the proposed line from McMinnville to Sparta. This being so, the Nashville, Chattanooga & St. Louis Railway would now be entitled, over that line, to the two hundred feet width of right of way, whether the road was extended under one charter or the other. 1. Independent of the franchises contained in the charter of this com- pany and the McMinnville & Manchester Railroad Company, the Nashville, Chattanooga & St. Louis Railway would doubtless now be entitled, over the line of this road, to one hundred feet on each side of the center of the road, for by Acts Tenn., 1849-50, ch. 266. sec. 3, it was provided that all branches of the Nashville & Chattanooga Railroad Company, as may be made, shall have all the rights and privileges, and shall be placed in all respects on the same footing, with the said Nash- ville & Chattanooga Railroad Company. 2. The road from Sparta to Bon Air was built under the charter of the Bon Air Railroad Company. For charter, how road acquired, and width of right of way of that branch, see index. 3. For a general discussion of this and kindred subjects, together with the right and method of taking more than two hundred feet when necessary for railroad purposes, see Eminent Domain, Right of Wnu, herein. Refer to index. ORIGINAL CHARTER OF THE SOUTHWESTERN RAILROAD COMPANY. (Acts Tenn., 1851-52, ch. 269, p. 462.) SECTION i. Incorporation, name, general powers.^ it enacted by the General Assembly oftke State of Tennessee, That a body politic and corporate is hereby constituted by the name and style of the Southwestern Railroad Company, for the pur- pose of constructing a railroad from Danville, in the State of Kentucky, to connect with the McMinnville & Manchester Railroad, and said company shall have and enjoy all the rights, powers, and privileges, and be subject to all the liabilities and restrictions, prescribed in the charter of the Nashville & Chatta- nooga Railroad Company, and in the various amendments thereto, except as herein further provided. 1. It will be noticed that the above section conferred upon the com- pany all the rights, powers, and privileges, and subjected it to all the liabilities and restrictions, of the Nashville & Chattanooga Railroad Com- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 195 pany's charter. For full discussion thereof, see chapter 1, herein. See, also, index for particular power desired. 2. The legislature may lawfully confer upun one company all the rights, powers, franchises, etc., of another by simply referring to it in the manner that this was done. See 8 Lea (Tenn.), 427. 3. By Acts 1868-69. ch. 11, p. 93, sec. 25, the Nashville & Cincinnati Rail- road Company was granted the privilege of uniting on a common track with this company from the junction of the Tennessee & Pacific Railroad with this company's railroad to Danville, Ky., if companies agreed. See act in next chapter. 4. By Acts Tenn., 1849-50, ch. 259, p. 497, another company was char- tered, known as the Sparta fe McMinnville Railroad Company, for the purpose of constructing a railroad from McMinnville to Sparta, but that company was never organized. SEC. 2. Capital, increase of value of shares, election of president and directors, voting. /?* it enacted, That the capi- tal stock of said company shall be one million of dollars, to be divided into shares of twenty-five dollars each, and the com- pany shall have power to increase the capital stock to three millions of dollars; and, whenever five thousand shares of the capital stock are subscribed for, said company may organize by the election of a board of directors, who shall elect a presi- dent from their number, as prescribed in the charter of the Nashville & Chattanooga Railroad Company, and, at all meet- ings of the stockholders, when a vote is to be taken, One vote for each stockholder shall be entitled to one vote for eachshare - each share of stock held by him. By Acts Tenn., 1855-56, ch. 229, p. 469, sees. 4, 9, the charter of this company was amended so that any stockholder should be eligible as a director, or to any other office, without reference to the amount of his stock. SEC. 3. Commissioners, powers of, subscriptions to stock. Be it enacted, That A. Philips, E. N. Cullom, R. Kenner, J. L. Goodall, O. S. Woods, R. B. Cain, Thomas E. Bram- lett, D. Haggard, J. H. West, J. L. Quarles, R. Blain, J. F. Bell, W. Lair, C. B. Coffee, and M. J. Brien be, and they are hereby, constituted a board of commissioners, a majority of whom may act, to manage all the affairs of said company until it shall l>e organized by the election of a board of directors as aforesaid, to procure the subscriptions of stock, by the appoint- ment of an agent or agents for that purpose, or in such manner as they may deem best; to provide for experimental Survcvs surveys of routes for such railroad, and for the 196 ORIGINAL CHARTER OF SOUTHWESTERN RAILROAD CO. payment for making said surveys, and for procuring said sub- scriptions, out of such calls on the stock subscribed for, as they may deem advisable, out of the funds hereafter provided for, but they shall not be compelled to require any part of the stock subscribed for to be paid in cash at the time it is subscribed for. At all meetings of said commissioners, they may Commission- . , . , . ers, how to vote in person or by proxy in relation to the affairs of the company, before its organization as afore- said, and they shall require each subscriber to execute his note to the company for one dollar for each share sub- Subscriber to J for e sub e scrip e - s scrilje(1 for y him, and it shall be lawful for the same to be sued for and recovered of such sub- scriber in the name of the company, whether organized or not, to be used, when paid, in defraying the expenses incurred by the commissioners in the manner aforesaid. SEC. -L Road to commence and be completed, when ; inte- gral parts. Be it further enacted, That said company shall have ten years to complete their said railroad, and whenever five miles of the road shall have been completed said company may carry on its regular business upon the same. And said company shall have five years in which to begin the construc- tion of said railroad. (Acts Tenn., 1851-2, ch. 269, p. 462; passed January 31, 1852.) 1. By Acts Tenn.. 1853-4, ch. 131, p. 205, sec. 11, the further time of two years was given this company to bring itself within the provisions of the act entitled "An act to establish a system of internal improve- ments in this state. " 2. By Acts Tenn., 1855-6, ch. 60, p. 67, sec. 5, an additional two years was granted as above. 3. By Acts Tenn., 1857-8. ch. 130, p. 326, sec. 2, an additional two years was granted as above. 4. Extra time granted to complete road. By Acts Tenn., 1865-6, ch. 107, p. 295. this company was granted the further time of ten years to complete its road. 5. By Acts 1859-60, ch. 78, p. 305. sec. 1, the further time of two years was granted this company to bring itself within internal improvement acts. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 197 CHAPTER XII. ACTS OF TENNESSEE RELATING TO SOUTHWESTERN RAIL- ROAD COMPANY. Nashville & Cincinnati Railroad Company authorized to unite on common track witb Southwestern Railroad Company, how. SEC. 25. Be it furtlier enacted, That the Nashville & Cin- cinnati Railroad Company may unite on a common track with the Southwestern Railroad Company from the junction of the Tennessee & Pacific Railroad with the Southwestern from said junction to Danville, Kentucky, if the companies shall both agree on said union or consolidation, by filing a written state- ment of the contract with the governor of the State of Ten- nessee, which contract shall be made a matter of record, and said contract shall be valid and binding in law and equity, and both companies shall have all the rights and privileges now granted by law to each company, except that there shall be but one set of officers on the road after the consolidation, and shall be governed by the general internal improvement laws, with all the amendments thereto. (Acts Tenn., 1868-9, ch. 11, p. 93, sec. 25; passed December 9, 1868.) Comptroller of state authorized to settle with receiver. SECTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the comptroller be, and is hereby, authorized and directed to settle with George G. Dibrell, as receiver and late president of the Southwestern Railroad Company. SEC. 2. Be it farther enacted, That when said settlement shall have been made, it may be made on the evidence of George G. Dibrell, or any other evidence proper and legal in itself. If there shall be any sum found to be due said receiver for a balance of salary, the comptroller shall issue his warrant for the same in favor of George G. Dibrell, said receiver, for 198 ACTS RELATING TO SOUTHWESTERN RAILROAD CO. whatever amount shall be found to be due him on final settle- ment. SEC. 3. Be it further enacted, That this act shall take effect from and after its passage, the public welfare requiring. (Acts Tenn., 1875, ch. 50, p. 47; passed March 10, 1875.) State aid to the Southwestern Railroad Company. -Many acts of the legislature of the State of Tennessee were passed authorizing state aid to be granted to the Southwestern Rail- road for the purpose of building and equipping its road. The state aid was given by having the governor to indorse the bonds of the road on behalf of the state. These acts are quite lengthy, and are so seldom required that, for the purpose of space and economy, it is not deemed advisable to insert them in full in this compilation, but simply to refer to the act and page where they can be found. Below will be found all acts relating to this subject set out in the order of their passage. Acts 1851-52, ch. 151, sec. 10, governor authorized to issue coupon bonds for amount not exceeding $8,000 a mile, on certain conditions. For conditions, see act. Acts 1853-54, ch. 235, p. 478, governor authorized to issue bonds, to under certain conditions, which included the bridge across Collins river, Caney Fork, and Obed rivers. Acts 1853-24, ch. 131, sec. 1, state aid to the extent of $10 a mile. Under section 11 of this act the Southwestern Railroad Company was also granted two years to bring this within the provisions of an act entitled "An act to establish a system of internal improvements in this state. ' ' Acts 1857-58, ch. 118, p. 301, state aid granted. Acts 1855-56, ch. 235, p. 478, sec. 2, state aid granted. Acts 1859-60, ch. 78, p. 305, sec. 3, state aid granted. Acts 1867-68, ch. 17, p. 14, sec. 4, state aid granted to extent of $300,000. Acts 1868-69, ch. 53, p. 264, sec. 32, state aid granted. NASHVILLE, CHATTANOOGA ints as the stock- br * nchs - holders of this company, or its successors, may determine to be for the interest of the company from time to time, and with full power to run and operate the same, and ito equip and use it as a railroad and common carrier. 1. Charter amended, may change termini. By Acts 1887. ch. 39, sees. 1, 2, all railroad companies chartered under the general laws of this state, may, by resolution of board of directors, change either termi- nus before the final location of the road. See act itself for method. 2. By-laws for arbitration sustained. 7 Pick. (Tenn.), 64. 3. By Acts 1889, ch. 158, all railroad companies chartered under the general laws of the state are allowed to build branch roads. See act itself for method. SEC. 2. General powers (Continued). The general powers of said corporation are, to sue and be sued by the corporate name, to have and use a common seal, which it may alter at pleasure; if no common seal, then the signature of the name of the corporation by any duly authorized officer shall be legal and binding; to purchase and hold or receive by gift, in addition to the personal property owned by said corporation, any real estate necessary for the transaction of the corporate business, and also to purchase or accept any real estate in payment, or part pay- ment, of any debt due to the corporation, and sell realty for corporation purposes; to establish by-laws and make all rules and regulations, not inconsistent with the laws and the consti- tution, deemed expedient for the management of corporate affairs; to appoint such subordinate officers and agents, in ad- dition to the president and secretary, or treasurer, as the busi- ness of the corporation may require; to designate the name of the office and fix the compensation of the officer. SEC. 3. Special provisions. The following provisions and restrictions are coupled with said grant of powers: A failure to elect officers at the proper time does not dissolve the corpora- tion, but those in office hold until the election or appointment and qualification of their successors.* The term of all officers may l>e fixed by the by-laws of the corporation, the same not, 202 ORIGINAL CHARTER OF BON AIR BRANCH however, to exceed two years. The corporation may, by by- laws, make regulations concerning the subscription for or trans- fer of stock, fix upon the amount of capital to be invested in the enterprise, the division of the same into shares, the time required for payment thereof by the subscribers for stock, the amount to be called for at any one time; and in case of failure of any stockholder to pay the amount thus subscribed by him at the time and in the amounts thus called, a right of action shall exist in the corporation to sue said defaulting stockholder for the same. *See 3 Hum., 531; 12 Lea, 252; 4 Cold., 101. SEC. 4. Directors, quorum Of, bOOkS. The board of direct- ors, which may consist of five or more members, at the op- tion of the corporation, to be elected either in person or by proxy, by a majority of the votes cast, each share representing one vote, shall keep a full and true record of all their proceed- ings, and an annual statement of receipts and disbursements shall be copied on the minutes, subject at all times to the in- spection of any stockholder. The books of the corporation shall show the original or subsequent stockholders, their re- spective interests, the amount which has been paid on the shares subscribed, the transfer of stock, by and to whom made; also other transactions in which it is presumed a stock- holder or creditor may have an interest. SEC. 6. Unpaid StOCk. The amount of any unpaid stock due from a subscriber to the corporation shall be a fund for the payment of any debts due from the corporation, nor shall the transfer of stock by any subscriber relieve him from pay- ment, unless his transferee has paid up all or any of the balance due on said original subscription. See 10 Pick. (Term.), 154, 608. SEC. 6. Express and implied powers. By no implication or construction shall the corporation be deemed to possess any powers except those hereby expressly given or necessarily im- plied from the nature of the business for which the charter is granted, and by no inference whatever shall said corporation NASHVILLE, CHATTANOOGA A ST. LOLLS RAILWAY. 203 possess the power to discount notes or bills, deal in gold or silver coin, issue any evidence of debts as currency, buy and sell any agricultural products, deal in merchandise, or engage in any business outside the purpose of the charter. SBC. 7. Charter may be repealed or amended. The right is reserved to repeal, annul, or modify this charter. If it is re- pealed, or if the amendments proposed, being not merely aux- iliary but fundamental, are "rejected by a vote representing more than half of the stock, the corporation shall continue to exist for the purpose of winding up its affairs, but not to enter upon any new business. If the amendments or modifications, being fundamental, are accepted by the corporation as afore- said, in a general meeting to be called for that purpose, any minor, married woman, or other person under disability, or any stockholder not agreeing to the acceptance of the modifica- tion, shall cease to be a stockholder, and the corporation shall be liable to pay said withdrawing stockholders the par value of their stock, if it is worth so much; if not, then so much as may be its real value in the market on the day of the withdrawal of said stockholders as aforesaid; Provided, That the claims of all creditors are to be paid in preference to said withdrawing stock- holders. The charter of the Nashville, Chattanooga & St. Louis Railway can- not be repealed or amended without the consent of the company. See section 34 of that charter. SEC. 8. Directors, quorum of; may borrow money, issue bonds, mortgages, etc. A majority of the board of directors shall constitute a quorum, and shall fill all vacancies until the next election. The first board of directors shall consist of the five or more corporators who shall apply for and obtain the charter. The said corporation may have the right to bor- row money and issue notes or bonds upon the faith of the cor- porate property, and also to execute a mortgage or mortgages as further security for repayment of money thus borrowed. SEC. 9. Condemnation of right of way, two hundred feet. The said corporation shall have the right, in pursuance of the general law authorizing the condemnation of private proj>erty 204 ORIGINAL CHARTER OF BON AIR BRANCH for works of internal improvement, as set forth in 1325- 1348 in the code (both inclusive), to appropriate as an easement the right of way, not exceeding two hundred feet, over the land of any person through which the line of the track may be located. Said sections of the code are hereby literally copied and inserted in the words and figures following: SEC. 10 (1325). Land may be taken, hOW. Any person or corporation authorized by law to construct any railroad, turn- pike, canal, tollbridge, road, causeway, or other work of in- ternal improvement to which the like privilege is conceded, may take the real estate of individuals not exceeding the amount prescribed by law, or by the charter under which the person or corporation acts, in the manner and upon the terms herein provided. (Iowa code, 1851, 759.) 1. Disability of owner does not affect the right. The right to take land under the power of eminent domain is not restricted by any dis- ability of the owner, who is entitled to demand and receive the value of the property, but must show title. 3 Head (Tenn.). 63-65. 2. By Acts 1885, ch. 135, the operation of this and succeeding sections was extended so as to apply and include the condemnation and taking of the property, privileges, rights, or easements of private corporations. See act itself for method. 3. By Acts 1889, p. 447, as embodied in Shannon's Code, \ 1879, it was made unlawful to construct or use any steam railway on any county road or highway, without the consent of the county court, to be granted in the method therein set out. SEC. 11 (1326). Proceedings, petition, etc. The party seek- ing to appropriate such lands shall file a petition in the circuit court of the county in which the land lies, setting forth, in sub- stance, (1) the parcel of land a portion of which is wanted, and the extent wanted, (2) the name of the owner of such land, or if unknown, stating the fact, (3) the object for which the land is wanted, (4) a prayer that a suitable portion of land may be de- creed to the petitioner and set apart by metes and bounds. (Iowa code, 1851, 760.) Petition need not be sworn to. SEC. 12 (1327). Notice to owner. Notice of this petition shall be given to the owner of the land, or, if a nonresident of the county, to his agent, at least five days before its presenta tion. (Ib. , modified.) NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 205 SEC. 13 (1328). Where owner nonresident If the owner is a nonresident of the state, or unknown, notice shall be given by publication as provided in this code in similar cases in chancery. SEC. u (1329). Proceedings only bind parties. All parties having any interest in any way in such land may be made de- fendants, and the proceedings will only cover and affect the interest of those who are actually made parties, unborn remain- der-men being, however, bound by proceedings to which all living persons in interest are parties. Tenants for life, years, and reversioners are interested parties, and must be compensated. 2 Head (Tenn.), 65, 176. SEC. 15 (1330). Writ of inquiry of damages. After the requisite notice has been given, if no sufficient cause to the con- trary is shown, the court shall issue a writ of inquiry of dam- ages to the sheriff, commanding him to summon a jury to in- quire and assess the damages. (Iowa code, 1851, 763.) SEC. 16 (1331). Clerk to issue writ, sheriff to summon jury. By consent of parties, or on application of the plaintiff, unless objection is made by the defendant, the writ of inquiry may be issued by the clerk as of course, after service of notice, on which the sheriff will summon the jury. SEC. 17 (1332). Jury to be disinterested. The jurors shall not be interested in the same, or a similar question, and shall possess the qualifications of other jurors, and may be nominated by the court, selected by consent of parties, or summoned by the sheriff. SEC. 18 (1333). Failure to attend. If named by the court, and the persons named are unable to attend when summoned, the place of such persons shall be supplied by the sheriff. SEC. 19 (1334). Number of jurors, challenges. The jury will consist of five persons, unless the parties agree upon a dif- ferent number, and either party may challenge for cause, or peremptorily, as in other civil cases. See 11 Heis., 56; 12 H.-is.. 56, 57. SEC. 20 (1335). Notice Of taking inquest. The sheriff shall give the parties or their agents, if residents of the county, three 206 ORIGINAL CHARTER OF BON AIR BRANCH days' notice of the time and place of taking the inquest, unless the time has been fixed by the order of the court. (Iowa code, 1851, 771.) SEC. 21 (1336). Jury to be sworn by sheriff. The jury, before proceeding to act, shall be sworn by the sheriff, fairly and impartially, without favor or affection, to lay off, by metes and bounds, the land required for the proposed improvement, and to inquire and assess the damages. SEC. 22 (1337). To examine ground and assess damages. The jury will then proceed to examine the ground and may hear testimony, but no argument of counsel, and set apart, by metes and bounds, a sufficient quantity of land for the purposes intended, and assess the damages occasioned to the owner thereby. (Iowa code, 1851, 768.) See 3 Lea, 482. SEC. 23 (1338). Damages, how estimated. In estimating the damages, the jury shall give the value of the land without deduction, but incidental benefits which may result to the owner by reason of the proposed improvement may be taken into con- sideration in estimating the incidental damages. For full discussion of this, see Eminent Domain, herein. Refer to index. SEC. 24 (1339). Report returned in writing. The report of the jury shall be reduced to writing, signed by a majority of the jurors, delivered to the sheriff, and by him returned into court. SEC. 25 (1340;. Confirmation Of report. If no objection is made to the report, it is confirmed by the court, and the land decreed to the petitioner, upon payment to the defendants, or to the clerk for their use, of the damages assessed, with costs. (/&., 775, modified.) SEC. 26 (1341). Exception to report and new writ. Either party may object to the report of the jury, and the same may, on good cause shown, be set aside and new writ of inquiry awarded. (Acts 1849-50, ch. 72, sec. 5.) SEC. 27 (1342). Appeal, new trial. Either party may also appeal from the finding of the jury, and on giving security for NASHVILLE, CHATTANOOOA A ST. LOUIS RAILWAY. 207 the costs, have a trial anew before a jury in the usual way. (/., modified.) See 12 Heis. (Tenn.), 57. SEC. 28(1343). Costs against appellant when not. If the verdict of the jury upon the trial affirms the finding of the jury of inquest, or is more unfavorable to the appellant than the finding of such jury, the costs shall l>e adjudged against such appellant; otherwise the court may award costs as in chancery cases. (/&.) SEC. 29 (1344). Appeal does not suspend work, how. - The taking an appeal does not suspend the operations of the petitioner on the land, provided such jietitioner will give bond with good security, to be approved by the clerk, in double the amount of the assessment of the jury of inquest, payable to the defendant, and conditioned to abide by and perform the final judgment in the premises. SEC. 30 (1345). Preliminary surveys, damages. A per- son or company actually intending to make application for the privileges herein contemplated, and entering upon the land of another for the purpose of making the requisite examinations and surveys, and doing no unnecessary injury, is liable only for the actual damage done; and, sued in such case, the plain- tiff shall recover only as much costs as damages. (Iowa code, 1851, 77S.) SEC. 31 (1346). Damages to be prepaid, or bond on appeal. - No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way until the damages assessed by the jury of inquest and the cost have been actually paid; or, if an appeal has been taken, until the bond has been given to abide by the final judgment, as before provided. See 6 Cold., 162; 7 Heis., 518, 535; 13 Lea, 671. SEC. 32 (1347). Owner may have inquest or sue for dam- ages, when ', proceedings. If, however, such' person or com- pany has actually taken possession of such land, occupying it for the purpose of internal improvement, the owner of such 208 ORIGINAL CHARTER OF BON AIR BRANCH land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest. See 2 Head, 174, 65; 3 Lea, 480; 13 Lea, 670. SEC. 33 (1348). Limitation of proceedings by owner. The owners of land shall, in such cases, commence proceedings within twelve months after the land has been actually taken possession of and the work of proposed internal improvement begun; saving, however, to unknown owners and nonresidents twelve months after actual knowledge of such occupation, not exceeding three years; and saving to persons under disabilities of infancy, coverture, and unsoundness of mind twelve months after such disability is removed, but not exceeding ten years. See 12 Heis., 623. See Eminent Domain herein. Refer to index. SEC. 34. Gauge, transportation charges, tracks not to ob- struct roads, highways, Streets, etc. The corporation is au- thorized to adopt such gauge as they may prefer. The charge for transportation shall not exceed twenty-five cents per hun- dred pounds on heavy articles, and ten cents per cubic foot on articles of measurement for every hundred miles transported, and four cents per mile for every passenger, with power to make special contracts with shippers on their roads in regard to rate of freight so as not to exceed the amounts herein desig- nated. The line of track of the road shall be so constructed so as not to interfere with convenient travel of the public along the highways, country roads, streets and alleys of cities, towns, and villages, and so as to allow carts, wagons, carriages, and other vehicles conveniently and safely to pass over or under the line of the track, and so as not to intercept traveling on foot or horseback, or in vehicles of any kind, from the neces- sary and proper use of the public roads, streets or alleys, in the usual and proper mode for their convenience. By Acts 1885, ch. 20. all railroad companies in the state were author- ized to select and alter the gauge of their road at pleasure. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 209 SEC. 35. Crossings, Signboards. Hoards, well supported by posts or otherwise, shall l>e placed, and constantly kept, across each public road; when the same is crossed on the same level by the track of the railway, the boards to be elevated so as not to obstruct travel, and on each side of said boards there shall be printed in large letters, easily to l>e seen by the traveler, the words ' Railroad Crossing Lkout for the Cars." Said' boards need not be put up at the crossing of streets and alleys in cities, towns, and villages, but such railroad company shall be subject to such proper regulations made by municipal au- thorities, in pursuance of general municipal powers regulating speed, passage, and flagman in such municipalities and at cross- ings; and when there are sidings and switches, the whistle shall always be blown at a distance of not less than two hundred and fifty yards from every crossing of a public road. When land on both sides of the track is owned by the same proprietor, convenient crossings shall be made and kept up at the expense of the corporation for the use of said proprietor, and all neces- sary cow-gaps made. SEC. 36. Regulations for running trains; fare must be paid. The board of directors shall fix the regular times for the running of trains for the transportation of passengers and property, and shall furnish sufficient accommodation for the safe, comfortable, and convenient transportation, and shall take, transport, and discharge such passengers and property at, from, and to such places on the due payment of freights, tolls, and fare legally authorized to be charged therefor, and in case of the refusal of said corporation, their officers or agents, to take and transport any passenger, or to deliver the same, or either of them, at the regular and appointed time, such cor|x>ration shall pay to the party aggrieved all damages thereby suffered, with costs of suit. If any passenger refuse to pay his toll or fare, the conductor may put him off the cars at any station or convenient point where said passenger can step on land. SEC. 37. Prohibited contracts; must receive freight from Other roads. The corporation shall make no contract giving any person a preference in the speedy shipment of freights. 14 210 ORIGINAL CHARTER OF BON AIR BRANCH This corporation shall receive on their road full freighted cars from other roads, and transport them, without breaking bulk, to the place of destination, charging for the goods, wares, and merchandise therein no greater rate of freight than is charged for similar goods, wares, and merchandise in their own cars, and return said cars free of charge; Provided, The cars thus to be received are good and substantial; And also provided^ The distance said wares and merchandise are to be transported is not less than twenty miles. SEC. 38. Officers and directors, capital stock, shares, books. The said five or more corporators shall, within a con- venient time after the registration of this charter in the office of the secretary of state, select from their number a president, secretary, and treasurer, or the last two offices may be com- bined into one, and shall not necessarily be stockholders, said president and the other corporators to constitute the first board of directors. The board of directors may fix the amount of capital stock of the company and the number of shares into which the same may be divided, and under their direction subscription books may be opened to obtain stock, all other persons having an equal right with said original corporators to subscribe for stock until the full amount of said capital stock is subscribed. When a sufficient amount of stock is subscribed, notice, per- sonal or by advertisement in a newspaper where the principal office of the corporation is to be kept, is to be given of the time and place of an election of officers. The result of all elec- tions is to be determined by a majority of the votes cast, each share to represent one vote. SEC. 39. Directors may increase Capital. The board of di- rectors may at any time increase the capital stock, if the necessi- ties of the corporation, in their estimation, require said increase. SEC. 40. May enter upon private lands. The company, by its officers or agents, may enter upon the lands of private per- sons for the purpose of making surveys, estimates, and location of route. SEC. 41. Shares of stock personalty. The stock is to be impressed with the character of personal property. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 211 We, the undersigned, apply to the State of Tennessee, by virtue of the law of the land, for a charter of incorporation for the purposes and with the powers, etc. , declared in the forego- ing instrument. Witness our hands, this twenty-first day of November, 1887. W. C. DlBRELL, J. W. THOMAS, G. M. FoG(j, J. H. AMBROSE, L. L. LOSEY. The above charter was properly acknowledged and registered in" the register's office of White county, in book 28, page 388, et K&I., and in the secretary of state's office, in book " S, " page 5. CHAPTER XIV. DEED TO BON AIR RAILROAD, FRANCHISES, ETC. BON AIR RAILROAD COMPANY, j TO Deed. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY. ) For and in consideration of the sum of five dollars to it in hand paid by the Nashville, Chattanooga & St. Louis Railway, and in consideration of the covenants and agreements herein- after set out, to be done and performed by the Nashville, Chat- tanooga & St. Louis Railway, and in pursuance of resolutions adopted by the stockholders of the Bon Air Railway, author- izing the same and directing the directors of this company to muke a sale and execute a conveyance of its projwrties, as here- inafter described, which resolutions are in the following words and figures, to wit: "Resolved by tlw stockholders of tln> Bon Air Railway in con- vention assembled, That the president IK?, and he is hereby, au- thorized, empowered, and directed to sell to the Nashville, Chattanooga & St. Louis Railway, all the property, rights, 212 DEED TO, FRANCHISES, ETC., BON AIR BRANCH privileges, and franchises of the Bon Air Railway, in consider- ation of the Nashville, Chattanooga & St. Louis Railway agree- ing to complete the railroad from Sparta to Bon Air, White county, Tennessee, and to pay the entire cost of the construc- tion of the same; and he is further authorized, empowered, and directed to execute such instruments as may be necessary for the full conveyance of the railway aforesaid, its franchises, etc." And in further pursuance of resolutions of the directors di- recting the president of this company to execute these convey- ances, the Bon Air Railway, a corporation chartered and or- ganized under the laws of the State of Tennessee, has bargained and sold, and by these presents does transfer and convey, unto the said Nashville, Chattanooga & St. Louis Railway and its successors and assigns, all and singular its railroad, extending from Sparta, in White county, in a southeasterly direction, to Bon Air, in said county, being a standard gauge railroad six miles and a half in length, together with its roadbed, rights of way, sidings, depots, depot grounds, and all of its appurtenances, F a. chi es emoluments, franchises, immunities of every kind etc., pass. an( j na ture whatsoever, together with all the rights under the charter to extend the road to the Kentucky line, and to build branches thereof, and in consideration of the Nashville, Chattanooga & St. Louis Railway having assumed and paid off the sum of dollars, beinsj the cost of construction of * o the said railroad and moneys expended for the right of way and otherwise upon said plant by the conveyor, and having paid off and discharged the same in full and relieved this con- veyor of all liabilities therefor. To have and to hold the said line of railway, roadbed, right of way, sidings, depots, depot grounds, franchises, immunities, etc., with all of its appurtenances, estate, title, and interest thereto belonging, to the said Nashville, Chattanooga & St. Louis Railway, its successors and assigns, forever. And the said Bon Air Railway does covenant with the said Nashville, Chattanooga & St. Louis Railway that it is lawfully seized and possessed of said railroad and properties in fee sim- ple, has a good right to convey it, and the same is unincum- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 213 bered; and it does further covenant and bind itself and its suc- cessors to warrant and forever defend the title to said railroad and proj>erties to the said Nashville, Chattanooga & St. Louis Railway, its successors and assigns, against the lawful claims of all persons whomsoever. In witness whereof, the said Bon Air Railway has caused its president and secretary to affix its corporate name and seal hereto, this the third day of Decem- ber, 1887. BON AIR RAILWAY, L. L. LOSEY, Sec. By J. H. AMBROSE, President. This deed was properly acknowledged and registered in the register's office of White county, in book, vol. 31, pp. 77-79. 214 ABSTRACT OF TITLE HUNTSVILLB & ELORA BRANCH CHAPTER XV. HUNTSVILLE & ELORA RAILROAD COMPANY. [HUNTSVILL.E & ELORA BRANCH.] How acquired by Nashville, Chattanooga & St. Louis Rail- way. On October 28, 188T, the Huntsville & Elora Railroad Company, pursuant to a resolution of its stockholders and di- rectors, executed a deed to its railroad, sidings, depots, right of way, franchises, etc., to the Nashville, Chattanooga & St. Louis Railway. At the date of sale, the road had not been con- structed, and only partially graded. The consideration was an agreement on the part of the vendee company to complete and operate the road from Huntsville to Elora as a standard gauge, which was done. The deed to the same is recorded in the judge of probate court's office in Alabama, deed N. N. N., p. 581. It is also inserted herein in next chapter. This sale was legal. Under sec. 24 of its charter, the Huntsville & Elora Railroad Company was given the power to sell its road, franchises, easements, immunities, etc., to any other corporation, whether char- tered by the laws of Alabama or not. The Nashville, Chattanooga & St. Louis Railway had the right to make the purchase under Acts Tenn., 1871. ch. 69; Shannon's code, 1509; M. & V., 1250. What franchises, etc., passed under this sale. in addition to the road and other property conveyed, the deed specifically transferred all the easements, franchises, rights, privileges, and immunities contained in the charter of the Huntsville & Elora Railroad Company. For particular enumeration of these rights, franchises, etc., see charter further on in this chapter. Width Of right Of way. Section 16 of the charter of the Huntsville & Elora Railroad Company gives one hundred feet on each side of the center of said road as a right of way, in the absence of any contract with the original landowner to the con- trary, where he fails to apply in time for assessment. This NASHVILLE, CHATTANOOGA & 8T. LOUIS RAILWAY. 215 section is the same as section 25 of the charter of the Nashville, Chattanooga & St. Louis Railway. See notes thereunder. For discussion of this and kindred subjects, tog-ether with the riffht and method of taking more than one hundred feet on each side of the center of the road, when necessary for railroad purposes, see l-'.mim nt Domain, Itlyht of Way, herein. Refer to index. Where Huntsville & Elora Railroad Company incorporated. The Huntsville etween Elora, Tenn., and Hunts- ville, Ala., the formation of a company is hereby authorized, which, when formed, shall 1x3 a body corporate, by the name and style of the Huntsville & Elora Railroad Company, and by said corporate name shall be capable in law to buy, receive by gift, hold, sell, and convey real and personal estate, as herein- after provided; make contracts, sue and be sued, make by-laws, and do all legal acts properly incident to a corj>oration necessary and proper to the transaction of the business for which it is in- 216 ORIGINAL CHARTER HUNTSVILLE & ELORA BRANCH corporated, and to have and use a common seal, and the same to alter and destroy at pleasure, and shall have perpetual suc- cession of members. 1. By Acts Ala., 1888-9, p. 443, the Nashville, Chattanooga & St. Louis Railway was granted all the rights, privileges, and immunities, and sub- jected to all restrictions, as were granted by the act incorporating the same, as far as this road lies within the county of Madison. See act itself in next chapter. 2. For rights, privileges, etc., of Nashville, Chattanooga & St. Louis Railway see ch. 1, herein. SEC. 2. Capital, books opened, commissioners. That the capital stock of this company may be fixed by its shareholders at any sum not to exceed "two hundred and fifty thousand dol- lars," and that Oscar R. Hundley, Lawrence Cooper, Benj. P. Hunt, M. J. O'Shaughnessy, John W. Thomas, G. M. Fogg, Milton Humes, and Robert L. Pulley, be, and they are hereby, appointed commissioners to open books for the subscription to the stock of the company, at Huntsville, Ala., and that said commissioners, or any three thereof, shall receive subscriptions for the stock of said company, on and from the passage of this act, to the first day of January, 1888, or until five thousand dollars shall have been subscribed. SEC. 3. Money deposited ; incorporation, directors, powers Of. As soon as said sum of five thousand dollars shall have been subscribed, the said commissioners shall place the money so received by them in such bank at Huntsville, Alabama, to the credit of the company hereby incorporated, subject to the order of the president and directors of said company. The Board of sa ^ Oscar R. Hundley, Lawrence Cooper, Benj. P. directors. Hunt? M j Q' Shaughnessy , 'John W. Thomas, G. M. Fogg, Milton Humes, and Robert L. Pulley shall be, and are hereby, constituted a board of directors of said company for the first twelve months after the passage of this act, and until a meeting of the stockholders of said company shall be had as hereinafter provided; and that the subscribers to said stock, and said board of directors, shall form a body politic and corporate in deed and in law and by the name and for the purpose aforesaid, and in all things to be represented by the board of directors aforesaid until the election of a board as NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 217 hereinafter prescribed; and they shall have the jx>wer to elect the president and officers of gaid company, and enact such rules, regulations, and by-laws which may be necessary for the gov- ernment thereof and the transaction of its business. See notes to sec. 8 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 4. Board Of directors, president. The affairs of said company shall be managed by the board of directors, consisting of seven, who shall be chosen by the stockholders from their own body, and a president of the company shall be elected by the directors from among their own members, in such manner as the regulations of the corporation shall prescribe. SEC. 5. Directors to hold over; elections. Should the day of annual election pass away without any election of directors, the corporation shall not thereby be dissolved, but it shall be lawful on any other day to hold and make such election, in such man- ner as may l>e prescribed by a by-law of the corporation. The directors of the entire system of which this road now forms a part, are elected under the charter of the Nashville, Chattanooga & St. Louis Railway. See ch. 1, herein. SEC. 6. Vacancies in board, how filled; president pro tem pore The board of directors may till up all vacancies which may occur in it during the period for which their board shall have been elected; and in the absence of the president, may fill his place by electing a president pro tempore. See sec. 10 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 7. Contracts binding without seal. All contracts and agreements authenticated by the president of the board shall be binding on the company without seal, or in such other mode of authentication may be used as the company, by their by- laws, may adopt. See notes to sec. 11 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 8. Exclusive transportation; rate of charge. The company shall have the exclusive right of transportation or conveyance of persons, goods, merchandise, and produce over the said railroad by them constructed ; J^rovided, That the 218 ORIGINAL CHARTER HUNTSVILLE & ELORA BRANCH charge of transportation or conveyance shall not exceed thirty - live cents per one hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement for every one hundred miles, and five cents per mile for every passenger; And provided also, That the said company may, when they see fit, farm out their rights of transportation on said road, subject to the rates above mentioned. See notes to sec. 14 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 9. StOCk, hOW transferred. The stock of said com- pany may be transferred in such manner and form as may be directed by the by-laws of the said corporation. See notes to sec. 16 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 10. Capital increased, hOW. The said company may at any time increase its capital to a sum sufficient to complete the said road and to stock it with everything necessary to give it full operation and effect, either by opening books for new stock or by selling such new stock, or by borrowing money on the credit of the company, and on the mortgage of its charter and works; and the manner in which the same shall be done in either case shall be prescribed by the stockholders at a general meet- ing; and any state, or any citizen, corporation, or company of this or any other state or country, may subscribe for and hold stock in said company, with all the rights and subject to all the liabilities of any other stockholder. See notes to sec. 17 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1 herein. SEC. 11. Directors' annual report; may call general meet- ings. The board of directors shall, in every year at least, make a full report of the state of the company and its affairs to a general meeting of the stockholders, and oftener, if di- rected by a by-law, and shall have power to call a general meet- ing of the stockholders when the board may deem it expedient. See notes to sees. 18 and 9 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 12. Method and scale of voting; value of shares. The stockholders may vote in person or by proxy, and in the NASHVILLE, CHATTANOOGA eace faithfully and ira- 220 ORIGINAL CHARTER HUNTSVILLE endency of any proceedings to assess its value as aforesaid, nor shall any injunction or supersedeas be awarded by any judge or court to delay the progress of said work. For full discussion of this section, see notes to section 24 of the char- ter of Nashville, Chattanooga & St. Louis Railway, chapter 1, herein. SEC. 16. In absence of contract, right of way one hundred feet, When. In the absence of any contract with the said com- pany in relation to land through which the said road may pass, signed by the owner thereof, or by his agent, or claimant or person in possession thereof, which may be continued by the owner, it shall be presumed that the land upon which the said road may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the company by the owner thereof, and the company shall have good right and title thereto, and shall have, hold, and enjoy the same as long as the same be used only for the pur- poses of the road, and no longer, unless the })erson or persons owning the said land at the time that part of the road which may be on said land was finished, or those claiming under him, her, or them, shall apply for an assessment for the valuation of said lands, as hereinbefore directed, within tive years next after that part of said road was finished. And, in case the said owner or owners, or those claiming under him, her, or them, shall not apply for such assessment within five years When claiins next after the said part was finished, he, she, or they are barred - shall be forever barred from recovering the said land or hav- ing any assessment or compensation therefor, provided nothing herein contained shall affect the right of feme* covert or in- fants until two years after the removal of their respective dis- abilities. See notes to sec. 25 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 17. Obstructing or damaging road, bridge, or vehicle; punishment. If any jwrson shall willfully and maliciously de- stroy, or in any manner hurt, damage, or obstruct the said 222 ORIGINAL CHARTER HUNTSVILLE & ELORA BRANCH railroad, or any bridge, or any vehicle used for or in the trans- portation thereon, such person or persons so offending shall be liable to be indicted therefor, and, on conviction, shall be im- prisoned not more than six months nor less than one month, and pay a fine of not less than twenty dollars, and shall be fur- ther liable to pay all the expenses of repairing the same; and it shall not be competent for any person so offending against the provisions of this clause to defend himself by pleading or giving in evidence that he was the owner, or agent or servant of the owner, of the land when such destruction, hurt, damage, injury, or obstruction was done, at the time the same was caused or done. See notes to sec. 27 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 18. Obstruction a public nuisance. Every obstruction to the safe and free passage of vehicles on the said road shall be deemed a public nuisance, and may be abated as such by an officer, agent, or servant of the company, and the person caus- ing such obstruction may be indicted and punished for erecting a public nuisance. See notes to sec. 28 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 19. Storage Charges allowed, When. The said com- pany shall have the right to take at the storehouses they may establish or annex to their railroad, all goods, wares, merchan- dise, and produce intended for transportation, prescribe the rules, priority, and charge and receive such just and reasonable compensation for storage as they, by rules, may establish (which they shall cause to be published), or as may be fixed by agree- ment with the owner, which may be distinct from the rates of transportation; Provided, That the said company shall not charge or receive storage on goods, wares, merchandise, or produce which may be delivered to them at their regular de- positories for immediate transportation, and which the company may have the power of transporting immediately. See notes to sec. 29 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. NASHVILLE, CHATTANOOGA 4 8T. LOUIS RAILWAY. 223 SEC. 20. Crossings Of roads and lands. Whenever, in the construction of said road, it shall be necessary to cross or in- tersect any established road or way, it shall be the duty of the company to construct said road across such established road or way so as not to impede the passage or transportation of per- sons or projHjrty along the same, or when it shall be necessary to pass through the land of any individual, it shall be their duty to provide for such individual a proper wagon way or ways across said road from one part of his land to the other. See notes to sec. 32 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 21. Additional powers. The said company shall pos- sess such additional powers as may be convenient for the due and successful execution of the powers granted in this charter, and for the successful construction and management of the work. . See notes to sec. 33 of charter of Nashville, Chattanooga fe St. Louis Railway, ch. 1, herein. SEC. 22. Charter, hOW amended. This charter shall be amendable, from time to time, by the legislature, whenever the president and directors shall unanimously petition for amend- ments, specifying in the j>etition the nature of such amend- ments; and when such amendments shall be adopted by the legislature, and submitted to the directory, and be accepted and adopted unanimously by the president and directors, they shall be obligatory on the stockholders, and not otherwise. See notes to sec. 34 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. SEC. 23. Road to commence and be completed, when. The railroad authorized by this act shall be commenced within six months after the passage of this act, and shall l>e finished within two years thereafter; otherwise the charter hereby granted shall be void. SEC. 24. May dispose of road, franchises, etc. Be it fur- ther enacted, That said company may sell, alien, and convey, lease or farm out their rights of transportation to said road, their franchise, roadbed, railway, depots, rolling stock, and all rights, easements, and immunities, to any other corporation, 224 DEED TO HUNTSVILLE & ELORA BRANCH whether resident or nonresident, whether incorporated by the laws of Alabama or those of any other state, upon a majority of the stockholders, at a meeting to be called by the directors of said company, upon five days' notice, authorizing the same to be done, and upon such authorization the president and directors shall have the power to make such sale, lease, or assignment, and execute proper conveyances therefor; and the purchaser shall be entitled to all the rights, franchises, and immunities of the corporation hereby incorporated under this act. (Acts Ala., 1886-7, No. 163, p. 289; passed February 8, 1887.) CHAPTER XVI. % DEED TO AND ACTS RELATING TO HUNTSVILLE & ELORA RAILROAD. HUNTSVILLE & ELORA RAILROAD Co. ) TO Deed. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY. ) This indenture, made and entered into this twenty-eighth day of October, A.D. 1887, by and between the Huntsville & Elora Railroad Company, a corporation chartered and doing business under the laws of the State of Alabama, of the first part, and the Nashville, Chattanooga & St. Louis Railway, a corporation chartered and doing business under the laws of the State of Tennessee, of the second part, witnesseth that, for and in con- sideration of the covenants and agreements hereinafter set out, to be done and performed by the party of the second part, the said party of the first part does hereby bargain, sell, alien, and convey unto the party of the second part, its successors and assigns, all of its lines of railway, sidings, stations, depots, depot grounds, rights of way, real estate, roadbed, chfses S 'etc!? and all of its emoluments, easements, franchises, and all rights, privileges, and immunities held, owned, or obtained by it under its charter granted by the gen- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 225 eral assembly of the State of Alabama, on the eighth day of February, 1887, its said lines of railway being described as follows, to wit: Beginning at the city of Huntsville, in Madi- son county, State of Alabama, and running northeasterly through the villages of Belle Factory, New Market, and Plevna, in said county and state, to the village of Elora, a station on the Winchester and Alabama branch of the Nashville, Chatta- nooga & St. Louis Railway, in the county of Lincoln, State of Tennessee, being a distance of twenty-six and a half miles, more or less, with an average right of way of one hundred feet, more or less. The said road has only been partially graded between Huntsville and Elora. To have and to hold unto the said Nashville, Chattanooga & St. Louis Hallway, its successors and assigns, forever, all the above described property, together with the tenements, here- ditaments, and appurtenances thereto belonging or in anywise appertaining as above described and set forth. And the said party of the first part, in consideration of the premises, hereby covenants that it is seized and possessed of said properties, and has a full right to convey the same, and that the title to the same is free and unincumbered, except as hereinafter set out, and it will forever warrant and defend the title hereby conveyed from the legal claims of all persons whatsoever. It is understood, however, that certain rights of way herein conveyed were made directly to the party of the second part by the consent of both parties heretofore, and it is not intended hereby to warrant these titles; and the party of the second part, in consideration of the premises, has paid the party of the first part one dollar, the receipt whereof is hereby acknowledged by said party of the first part, and in further con- Consldera . sideration hereby covenants to and with the party tlon - of the first part to at once complete the construction of said lines of railway from Huntsville to Elora, as altove described, making it a standard gauge road of the same gauge of said party's main line, and to complete and equip the same as a railway, and to operate the same by running freight and pas- is 226 ACTS RELATING TO HUNTSVILLE & ELORA BRANCH senger trains thereon, and to run at least one through passenger coach daily between Nashville and Huntsville, and without un- avoidable delay. In witness whereof the said parties have caused their proper officers to affix their corporate names and seals hereto, the day and date first above mentioned. THE HUNTSVILLE & ELORA RAILROAD COMPANY, OSCAR R. HUNDLEY, Sec. By G. M. FOGG, President. The above deed was properly acknowledged and registered in the office of the judge of probate court of Madison county, Alabama, deed N N N, p. 581. Rights and privileges granted Huntsville & Elora Railroad through Madison County, Alabama. SECTION 1. That the Nashville & Chattanooga Railroad Com- pany be, and they are hereby, authorized to construct their road through the northern portion of Jackson county, in this state, and that they shall have and enjoy all the rights, privi- leges, and immunities, and be subject to such restrictions, as are granted to and imposed upon said company by the act incor- porating the same, as far as said railroad lies in the county of Jackson, on the express condition, however, that any railroad company now chartered or which may hereafter be chartered in this state, shall have the right to connect their road directly with the said Nashville & Chattanooga Railroad at any point on it in the county of Jackson aforesaid. The above section is set out, as it is referred to in the fourth section, which relates to the Huntsville & Elora Railroad. Sections 2 and 3 of this act have no bearing, and hence are omitted. SEC. 4. Whereas, the Nashville, Chattanooga & St. Louis Railway, formerly the Nashville & Chattanooga Railroad Com- pany, has constructed a road from Elora, in the State of Ten- nessee, to Huntsville, in the county of Madison, State of Alabama; Therefore be it further enacted by the General As- setnbfy, That said Nashville, Chattanooga & St. Louis Railway shall have and enjoy all the rights, privileges, and immunities granted in section one of this act, so far as said Nashville, Chatta- nooga & St. Louis Railway lies within the county of Madison. (Acts Ala., 1888-89, p. 443; approved February 19, 1889.) NASHVILLE, CHATTANOOGA ook No. 2, pp. 552-554. Said deed is also inserted herein. See next chapter. 228 ABSTRACT OF TITLE TO CENTRE VILLE BRANCH Under and by virtue of the same contract, the Nashville, Chattanooga & St Louis Railway subsequently extended the said road from Centreville to a point on the line separating Lewis county from Hickman county, a distance of about thir- teen miles, and, on June 20, 1884, the Nashville & Tuscaloosa Railroad Company, in pursuance of said agreement, deeded to the Nashville, Chattanooga & St. Louis Railway that part of the road from Centreville to a point on the line separating Lewis county from Hickman county, a distance of about thir- teen miles, as above explained, together with all the rights, franchises, privileges, appurtenances, etc., appertaining thereto, a deed to which was duly acknowledged and registered in the register's office of Hickman count v, in trust deed book No. 3, O tf * pp. 60-62. Said deed is also inserted herein. See next chapter. 1. This last conveyance reached a point about a mile from Kimmins, in Lewis county. 2. Road from Kimmins to Minnie, on Allen's creek. The road from Kimmins, in Lewis county, to Minnie, on Allen's creek, in Wayne county, a distance of eighteen miles, was built by the Southern Iron Company, and sold to the Nashville, Chattanooga & St. Louis Railway on the twenty-fourth day of September, 1892, a deed to which is regis- tered in the register's office of Lewis county, in book I, p. 495; in Wayne county, in book T, p. 50. Said deed is also inserted herein in next chapter. 3 . Road from Centreville to Swan creek, in direction of Duck river phosphate mines. The road from Centreville to Swan creek, in the direction of the Duck river phosphate mines, was built by the Nashville, Chattanooga & St. Louis Railway, so as to connect at Swan creek with the road built by the said phosphate company from their mines to said point. This extension was made under Acts 1895, ch. 152, p. 314, allow- ing lateral roads to be built to mines, quarries, etc., if not exceeding eight miles. The rails, etc., on the road built by the Duck River Phos- phate Company from their mines to Swan creek are owned by the Nash- ville, Chattanooga & St. Louis Railway. 4. Gauge changed, when. When the above purchased roads were secured they were narrow gauge. The Nashville, Chattanooga & St. Louis Railway subsequently changed them to broad gauge in June, 1894. 5. Legality of purchase. The purchase of the above roads was legal under the acts of Tennessee, 1871, ch. 69, which superseded the acts of 1871, ch. 23. 6. Road from Lyles to Warner. The road from Lyles to Warner is not owned by the Nashville, Chattanooga & St. Louis Railway, though the rails, etc., on said road are owned by the Nashville, Chattanooga & St. Louis Railway. What franchises, etc., passed under this sale. in addition to the railroad, appurtenances, equipments, lands, depots, NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 229 bridges, etc., therein conveyed, the deeds sj>ecifically trans- ferred and conveyed all the rights, privileges, and franchises contained in the charter of the said Nashville & Tuscaloosa Railroad Company. For the enumeration of said franchises, rights, etc., see charter of Nashville & Tuscaloosa Railroad Company further on in this chapter, and the deed from the Southern Iron Company to the Nashville, Chattanooga & St. Louis Railway, of that part of the road from Kimmins to Min- nie, which deed is set out in the succeeding chapter. Width Of right Of way. The charter of the Nashville & Tuscaloosa Railroad Company was granted under the general acts of the legislature of the State of Tennessee, as set out in Acts of 1875, ch. 142, sec. 6. In this charter there is no clause granting any specified number of feet as a right of way, in the absence of any contract with the original landowner, as is pro- vided in most of the charters granted by xpecial acts. Sec. 9 of the charter provides, however, that the said company shall have the right to appropriate, as an easement, a right of way not exceeding two hundred feet, one hundred feet on each side of the center line of said road, over the land of any person through which the line of track may be located. Under this section, the Nashville & Tuscaloosa Railroad Company could have originally condemned any number of feet, up to and in- cluding two hundred, for a right of way. Whatever number of feet was originally condemned, however, would now be binding upon the Nashville, Chattanooga & St. Louis Railway. Should no condemnation have been had at all, then the entry and construction of the road would be regarded as an uppro- pr'udion of so much of the land as the law authorized, which is two hundred feet, and the Nashville, Chattanooga & St. Louis Railway, as the lawful purchaser thereof, would l>e entitled to that numl>er of feet. 3 Lea (Tenn. ), 478. On that part of the road from Kimmins to Minnie, which was conveyed to the Nashville, Chattanooga & St. Louis Railway by the Southern Iron Company, the right of way is fifty feet on each side of the center of the road, as will appear from said deed, and which deed is set out in the next chapter. 230 ORIGINAL CHARTER OF CENTREVILLE BRANCH 1. It is probable that the statute of limitations would run against the railway on this line of road, under the charter of the Nashville & Tusca- loosa Railroad Company, if adjoining landowner is allowed to use and occupy adversely a part of the two hundred feet. The same is doubt- less true of that part of the road conveyed by the Southern Iron Com- pany. 2. In considering this question, however, regard must be had to the Acts of Tenn., 1849-50, ch. 266, sec. 3, which provided that all branches of the Nashville & Chattanooga Railroad Company, as may be made, shall have all the rights and privileges and be placed in all respects on the same footing, as the Nashville & Chattanooga Railroad Company. 3. For full discussion of this subject, together with right of taking more than two hundred feet, see Eminent Domain, herein. Refer to index. ORIGINAL CHARTER OF NASHVILLE & TTJS- CALOOSA RAILROAD COMPANY. (Chartered under General Acts 1875, ch. 142.) SECTION i. Incorporation, name, route, general powers. Be it known, That E. F. Falconnet, L. S. Goodrich, G. H. Nixon, J. H. Moore, W. B. Russell are hereby constituted a body politic and corporate by the name and style of the "Nash- ville & Tuscaloosa Railroad Company," for the purpose of con- structing a railroad from a point on the Nashville & Northwest- ern Railway at or near Burns Station, or at or near any other convenient station or point on said railway, through the town of Centreville, Hickman county, and through the town of Law- renceburg, Lawrence county, to a point on the northern bound- ary of the State of Alabama in the direction of Florence, North Alabama. 1. Charter amended, may change termini. By Acts Tenn., 1887. ch. 39, sees. 1, 2. all railroad companies chartered under the general laws were authorized to chauge either terminus before final completion. See act itself for method. 2. Hy Acts 1889, ch. 158, all railroad companies chartered under the general laws were allowed to build branch roads. See act itself for method. 3. Hy Acts 1879, ch. 156, p. 199, it was provided that the state revenue collected and to be collected in Hickman county for the years 1878 and 1879 should be remitted in order that the people could complete this road to Centreville. 4. The charter of this company was amended, as will appear from the secretary of state's office, so as to enable the company to increase its capital. SEC. 2. General powers (Continued). The general powers of this corporation are, to sue and be sued by the corporate NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 231 name, to have and use a common seal, which it may alter at pleasure; if no common seal is used, then the signature of the name of the corporation, by any duly authorized officer, shall be legal and binding; to purchase and to hold or receive by gift, in addition to the personal property owned by said cor- poration, any real estate necessary for the transaction of the corporate business, and also to purchase and accept any real estate in payment, or part payment, of any debt due to the corporation, and sell realty for corporation purposes; to estab- lish by-laws and make all rules and regulations not inconsistent with the laws and the constitution deemed expedient for the management of corporate affairs; to appoint such subordinate officers and agents, in addition to president and secretary and treasurer, as the business of the corporation may require, des- ignate the name of the office and fix the compensation of the officers. SEC. 3. Special provisions. A failure to elect officers at the proper time does not dissolve the corporation, but those in office hold until the election or appointment and qualification of their successors. The term of all officers may be fixed by the by-laws of the corporation, the same not to extend beyond two years. This corporation may, by by-laws, make regulations concerning subscription for or transfer of stock, fix upon the amount of capital to be invested in the enterprise, the division of the same into shares, the time required for payment thereof by the subscribers for stock, the amount to be called for at any one time, and, in the amounts thus called, a right of action shall exist in the corporation to sue any defaulting stockholder for the same. SEC. 4. Directors, quorum, bOOkS. The board of directors of the Nashville & Tuscaloosa Railroad Company shall consist of five members, to be elected either in jx3rson or by proxy, by a majority of the votes cast, each share of stock represent- ing one vote; shall keep a full and true record of all their pro- ceedings, and an annual statement of all receipts and disburse- ments shall be copied on the minutes, subject, at all times, to the inspection of any stockholder. The books of the Nashville 232 ORIGINAL CHARTER OF CENTREVILLE BRANCH & Tuscaloosn Railroad Company shall show the original and subsequent stockholders, their respective interests, the amount which has been paid on the shares subscribed, the transfer of stock, by and to whom made; also other transactions in which it is presumed a stockholder or creditor may have an interest. SEC. 5. Unpaid StOCk. The amount of any unpaid stock due from a subscriber to the corporation shall be a fund for the payment of any debts due from the corporation, nor shall the transfer of stock of any particular stockholder or sub- scriber relieve him from payment, unless his transferee has paid up all or any of the balance due on said original sub- scription. SEC. 6. Express and implied powers. By no implication or construction shall the Nashville & Tuscaloosa Railroad Com- pany be deemed to possess any powers except those hereby expressly given or necessarily implied from the nature of the business for which the charter is granted, and by no inference whatever shall this corporation possess the power to discount notes or bills, deal in gold or silver coin, to issue any evidence of indebtedness as currency, buy and sell any agricultural products, deal in merchandise, or engage in any business out- side of the purpose of this charter. SEC. 7. Charter may be repealed or amended. The right is reserved to repeal, annul, or modify this charter. If it is re- pealed, or if the amendments proposed, being not merely aux- iliary, but fundamental, are rejected by a vote representing more than half of the stock, the corporation shall continue to exist for the purpose of winding up its aifairs, but not to enter upon any new business. If the amendments or modifications, being fundamental, are accepted by the corporation as aforesaid, in a general meeting to be called for that purpose, any minor or married woman, or other person under disability, or any stockholder not agreeing to the acceptance of the modification, shall cease to be a stockholder, and the corporation shall be liable to pay said withdrawing stockholders the par value of their stock, if it is worth so much; if not, then so much as may be its real value in the market on the day of the withdrawal of NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 233 said stockholders as aforesaid; Provided^ That the claims of all creditors are to be paid in preference to said withdrawing stockholders. SK . s. Directors, quorum of, may borrow money, issue bonds, mortgages, etc. A majority of the board of directors of the Naslrville & Tuscaloosa Railroad Company shall consti- tute a quorum, and shall fill all vacancies until the next elec- tion. The first board of directors of this company shall consist of the five original corporators who have applied for this char- ter. The Nashville & Tuscaloosa Railroad Company shall have the right to borrow money and issue notes or bonds upon the faith of the corporate property, and also to execute a mortgage or mortgages as further security for the payment of money thus borrowed. SEC. 9. Condemnation of right of way two hundred feet. The said Nashville & Tuscaloosa Railroad Company shall have the right, in pursuance of the general law authorizing the con- demnation of private property for works of internal improve- ment, as set forth in 1325-134:8 in the code (both inclusive), to appropriate, as an easement, the right of way, not exceeding two hundred feet, one hundred feet on each side of the center line of said road, over the land of any person through which the line of the track may be located. The sections of the code, 1325-1348, read as follows: SEC. 10 (1325). Land may be taken, hOW. Any person or corporation authorized by law to construct any railroad, turn- pike, canal, tollbridge, road, causeway, or other work of inter- nal improvement to which the like privilege is conceded, may take the real estate of individuals not exceeding the amount prescribed by law, or by the charter under which the person or corporation acts, in the manner and upon the terms herein provided. (Iowa code, 1851, g 759.) 1. The right to take land under the power of eminent domain is not restricted by any disability of the owner, who is entitled to demand and receive the value of the property, but must show title. 3 Head (Tenn.), 63-65. 2. By Acts Tenn.. 1885, ch. 135, the operation of this and succeeding sections was extended so as to apply and include the condemnation and taking of the property, privileges, rights, and easements of private cor- porations. 234 ORIGINAL CHARTER OF CENTRE VILLE BRANCH 3. By Acts 1889, p. 447 (Shannon's code, 1879), it was made unlawful to construct or use any steam railway on any county road or highway without the consent of county court, to be granted in the method therein set out. SEC. 11 (1326). Proceedings, petition, etc. The party seek- ing to appropriate such lands shall file a petition in the circuit court of the county in which the land lies, setting forth in sub- stance (1) the parcel of land a portion of which is wanted, and the extent wanted, (2) the name of the owner of such land, or, if unknown, stating the fact, (3) the object for which the land is wanted, (4) a prayer that a suitable portion of land may be decreed to the petitioner and set apart by metes and bounds. (Iowa code, 1851, 760.) Petition need not be sworn to. SEC. 12 (1327). Notice to Owner. Notice of this petition shall be given to the owner of the land, or, if a nonresident of the county, to his agent, at least five days before its presenta- tion. SEC. 13 (1328). Where owner nonresident. if the owner is a nonresident of the state, or unknown, notice shall be given by publication as provided in this code in similar cases in chan- cery. SEC. 14 (1329). Proceedings only bind parties. All parties having any interest in any way in such land may be made de- fendants, and the proceedings w r ill only cover and affect the interest of those who are actually made parties, unoorn remain- dermen being, however, bound by proceedings to w r hicb all living persons in interest are parties. Tenants for life, years, and reversioners are interested parties, and must be compensated. 2 Head, 65, 176. SEC. 15 (1330). Writ of inquiry of damages. After the requisite notice has been given, if no sufficient cause to the con- trary is shown, the court shall issue a writ of inquiry of dam- ages to the sheriff, commanding him to summon a jury to in- quire and assess the damages. (Iowa code, 1851, 763.) SEC. 16 (1331). Clerk to issue writ, sheriff to summon jury. By consent of parties, or on application of the plaintiff, NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 235 unless objection is made by the defendant, the writ of inquiry may be issued by the clerk of the court, after service of notice, on which the sheriff will summon the jury. SEC. 17(1332,. Jury to be disinterested. The jurors shall not be interested in the same, or a similar question, and shall possess the qualifications of other jurors, and may be nominated by the court, selected by consent of parties, or summoned by the sheriff. SEC. 18 (1333). Failure tO attend. If named by the court, and the persons named are unable to attend when summoned, the place of such persons shall be supplied by the sheriff. SEC. 19 (1334). Number of jurors, challenges. The jury will consist of five persons, unless the parties agree upon a different numl>er; and either party may challenge for cause, or peremptorily, as in jother civil cases. See 11 Heis., 56; 12 Heis., 56, 57. SEC. 20 (1335). Notice Of taking inquest. The sheriff shall give the parties or their agents, if residents of the county, three days' notice of the time and place of taking the inquest, unless the time has been fixed by the order of the court. (Iowa code, 1851, 771.) SEC. 21 (1336). Jury to be sworn by sheriff. The jury, before proceeding to act, shall be sworn by the sheriff, fairly and impartially , without favor or affection, to lay off by metes and bounds the land required for the proposed improvement, and to inquire and assess the damages. SEC. 22 (1337). Examine ground and assess damages. - The jury will then proceed to examine the ground and may hear testimony, but no argument of counsel, and set apart by metes and bounds a sufficient quantity of land for the purposes intended, and assess the damages occasioned to the owner thereby. (Iowa code, 1851, 768.) See 3 Lea, 482. SEC. 23 (1338). Damages, how estimated. In estimating the damages, the jury shall give the value of the land without deduction, but incidental benefits wli-idi mav result to the owner 236 ORIGINAL CHARTER OF CENTRE VILLE BRANCH by reason of the proposed improvement may be taken into con- sideration in estimating the incidental damages. For full .discussion of this, see Eminent Domain, herein. Refer to index. SEC. 24: (1339). Report returned in writing. The report of the jury shall be reduced to writing, signed by a majority of the jurors, delivered to the sheriff, and by him returned into court. SEC. 25 (1340). Confirmation Of report. If no objection is made to the report, it is confirmed by the court, and the land decreed to the petitioner, upon payment to the defendants, or to the clerk for their use, of the damages assessed, with costs. (/&., 775, modified.) SEC. 26 (1341). Exceptions to report and new writ. Either party may object to the report of the jury, and the same may, on good cause shown, be set aside, and new writ of inquiry awarded. (Act 1849-50, ch. 72, sec. 5.) SEC. 27 (1342). Appeal, new trial. Either party may also appeal from the finding of the jury, and, on giving security for the costs, have a trial anew before a jury in the usual way. (/#., modified.) SEC. 28 (1343). Costs against appellant, when not. if the verdict of the jury, upon the trial, affirms the finding of the jury of inquest, or is more unfavorable to the appellant than the finding of such jury, the costs shall be adjudged against such appellant; otherwise the court may award costs as in chancery cases. (/.) SEC. 29 (1344). Appeal does not suspend work, how. The taking an appeal does not suspend the operations of the peti- tioner on the land, provided such petitioner will give bond with good security, to be approved by the clerk, in double the amount of the assessment of the jury of inquest, payable to the defendant, and conditioned to abide by and perform the final judgment in the premises. SEC. 30 (1345). Preliminary surveys, damages. A person or company actually intending to make application for the priv- ileges herein contemplated, and entering- upon the land of an- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 237 other for the purpose of making the requisite examinations and surveys, and doing no unnecessary injury, is liable only for the actual damage done; and, if sued in such case, the plaintiff shall recover only as much costs as damages. (Iowa code, 1851, 778.) SEC. 31 (1346). Damages to be prepaid, or bond on appeal. No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way until the damages assessed by the jury of inquest and the cost have been actually paid; or, if an appeal has b?en taken, until the bond has been given to abide by the final judgment as before provided. See 6 Cold., 162; 7 Heis, 518; 13 Lea, 671. SEC. 32 (1347). Owner may have inquest or sue for dam- ages, When; proceedings. If, however, such person or com- pany has actually taken possession of such land, occupying it for the purpose of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided, or he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest. See 2 Head, 65, 174; 3 Lea, 480; 13 Lea, 670. SEC. 33 (1348). Limitation of proceedings by owner. The owners of land shall, in such cases, commence proceedings within twelve months after the land has been actually taken possession of and the work of proposed internal improvement begun, saving, however, to unknown owners and nonresidents twelve months after actual knowledge of such occupation, not exceeding three years, and saving to persons under disabilities of infancy, coverture, and unsoundness of mind twelve months after such disability is removed, but not exceeding ten years. See 13 Heis., 623. SEC. 34. Gauge, Charges, highways. The Nashville & Tus- caloosa Railroad Company is authorized to adopt a gauge of 238 ORIGINAL CHARTER OF CENTREVILLE BRANCH three feet or any other gauge that they may prefer. The charge of transportation shall not exceed twenty-five cents per hundred pounds on heavy articles and ten cents per cubic foot on articles of measurement for every hundred miles trans- ported, and four cents per mile for every passenger, with power to make special contracts with shippers on their roads in regard to rate of freights so as not to exceed the amounts herein designated. The line or track of the road shall be so constructed as not to interfere with convenient travel of the public along the highways, county roads, streets, and alleys of cities, towns, and villages, and so as to allow carts, wagons, carriages, and other vehicles conveniently and safely to pass over or under the line or track, and so as not to interrupt traveling on foot or horseback, or in vehicles of any kind, from the necessary and proper use of the public road, street, or alley in the usual and proper mode of convenience. By Acts 1885, ch. 20, all railway companies were authorized to adopt and alter at pleasure their gauge. SEC. 35. Crossings, Signboards. Boards well supported by posts, or otherwise, shall be placed and constantly kept across each public road, when the same is crossed on the same level with the track of the railway, the boards to be elevated so as not to obstruct travel, and on each side of said board there shall be printed, in large letters, easily seen by the trav- eler, the words, "Railroad Crossing Lookout for the Cars." Said boards need not be put up in the crossings of streets and alleys in cities, towns, and villages, but this railroad company shall be subject to such proper regulations made by municipal authorities, in pursuance of general municipal powers regulat- ing speed, pullages and flagmen in such municipalities and at crossings; where there are sidings and switches, the whistle shall always be blown at a distance of not less than two hundred and fifty yards from every crossing of a public road. When land on both sides of the track is owned by the same propri- etor, convenient crossings shall be made and kept up at the expense of this corporation for the use of said proprietor, and the necessary cow-gaps made. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 239 SEC. 36. Regulations for running trains, fare must be paid. The board of directors shall fix the regular times for the running of trains for the trans|>ortation of passengers and prop- erty, and shall furnish sufficient accommodation for their safe, comfortable, and convenient transportation, and shall take, transport, and discharge such passengers and property at, from, and to such places on the due payment of freights, tolls, and fare legally authorized to be charged therefor, and in case of the refusal of this corporation, their officers, or agents, to take and transport any passenger, or property, or to deliver the same, or either of them, at the regular and appointed time, such corporation shall pay to the party aggrieved all damages thereby suffered, with costs of the suit. If any passenger re- fuse to pay his toll or fare, the conductor may put him off the cars at any station or convenient point where said passenger can step on land. SEC. 37. Prohibited contracts; must receive freight from Other roads. This corporation shall make no contract giving any person a preference in the speedy shipment of freights. This corporation shall receive on their road full freighted cars from other roads of the same gauge, and transport them, with- out breaking bulk, to the place of destination, charging for the goods, wares, and merchandise thereon no greater rate of freight than is charged for similar goods, wares, and merchan- dise in their own cars, and return said cars free of charge; Provided, The cars so to be received are good and substantial; and al*o provided, The distance said wares and merchandise are to l>e transported is not less than twenty miles. SEC. 38. Officers, directors, capital, shares. The said five corporators, viz.: E. F. Falconnet, L. S. Goodrich, G. H. Nixon, J. II. Moore, W. B. Russell, shall, within a convenient time after the registration of this charter in the office of the secretary of state, select from their number a president, secre- tary and treasurer, or the last two offices may l>e combined into one, and shall not necessarily be stockholders., said president and the other corporators to constitute the first board of direct- ors. The board of directors of the Nashville <& Tuscaloosa 24:0 ORIGINAL CHARTER OF CENTREVILLE BRANCH Railroad Company may fix the amount of stock of the company and the number of shares into which the same may be divided, and under their direction subscription books may be opened to obtain stock, all other persons having an equal right with said original corporators to subscribe for stock until the full amount of said stock is subscribed. When a sufficient amount of stock is subscribed, notice, personal or by advertisement in a news- paper where the principal office of the company is kept, is to be given of the time and place for an election of officers. The result of all the elections is to be determined by a majority of the votes cast, each share to represent one vote. The board of directors may at any time increase the capital stock, if the necessities of the corporation, in their estimation, require said increase. SEC. 39. May enter upon private lands. The company, by its officers and agents, may enter upon the lands of private persons for the purpose of making surveys, estimates, and lo- cation of route. SEC. 40. Shares of stock personalty. The stock is to be impressed with the character of personal property. We, the undersigned, apply to the State of Tennessee, by virtue of the law of the land, for a charter of incorporation for the purposes and with the powers, etc., declared in the fore- going instrument. Witness our hands, this thirtieth day of May, 1877. E. F. FALCONNET, G. H. NIXON, L. S. GOODRICH, J. H. MOORE, W. B. RUSSELL. The above charter was properly acknowledg-ed and registered in the register's office of Hickman county, in book T, p. 261 ; and in secretary of state's office, in book A, p. 475. NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. CHAPTER XVIII. DEEDS TO NASHVILLE A TUSCALOOSA RAILROAD AXD ROAD FROM KIMMIXS TO MAXNIE, ON ALLEX'S CREEK. DEED TO THAT PART OF ROAD FROM DICKSON TO CENTRE VILLE. NASHVILLE & TUSCALOOSA RAILROAD COMPANY, i TO Deed. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY. \ WHEREAS, A contract was entered into by and between the Nashville, Chattanooga & St. Louis Railway and the Nashville & Tuscaloosa Railroad Company on the twenty-ninth day of July, 1880, providing that the former company should extend the Nashville & Tuscaloosa Railroad from Graham station to a point on the north bank of Duck river opposite Centreville, about thirteen miles, and, in consideration of such extension, the Nashville & Tuscaloosa Railroad Company agreed to convey in fee simple, all of its railroad from Dickson, Tenn. , to Centre- ville, Tenn., together with its rights, franchises, equipments, appurtenances, etc., to the Nashville, Chattanooga & St. Louis Railroad; and, WHEREAS, The said Nashville, Chattanooga & St. Louis Railway has complied in every particular with the contract so made, and has constructed and completed said extension from Graham to a point on the opposite side of Duck river from Centreville. Now, therefore, in consideration of the premises, the said Nashville & Tuscaloosa Railroad Company hath granted, bargained, sold, assigned, transferred, and conveyed, and by these presents doth grant, bargain, sell, assign, trans- fer, and convey unto the Nashville, Chattanooga & St. Louis Railway, and to its successors and assigns forever, all and singular that branch of the Nashville, Chattanooga & St. 16 242 DEEDS RELATING TO CENTREVILLE BRANCH Louis Railway known as the Centreville branch, and formerly known as the Nashville & Tuscaloosa Railroad, beginning at the junction of said branch and the line of said Nashville, Chatta- nooga & St. Louis Railway in Dickson county, State of Ten- nessee, and extending in a line to the town of Centreville, in Hickman county, in said state, a distance of thirty-four miles of completed road, together with all and singular the appur- tenances thereof, and all equipments, lands, tracks, lines, rails, bridges, erections, fences, walls, fixtures, privileges, rights and interests, choses in action, leaseholds, and other things of every kind, nature, and character belonging or appertaining to said road, and all the tolls, incomes, uses, and profits to be had or demanded from the same or any part or proportion thereof, and all railway stations and depots, with all appurtenances necessary and convenient for the sole, complete, and entire use and operation as well as maintenance of the said roads or rail- ways, herein conveyed with its equipments, appurtenances, and all its other property, real, personal, and mixed, and all the Franchises, rights, privileges, and franchises of the said Nash- pass ts> e ville & Tuscaloosa Railroad Company pertaining to the roads and railways herein conveyed, or any of them, or the operation, use, or enjoyment thereof, and also all right to use the roadbeds, tracks, sidings, turnouts, and switches con- structed at the execution of these presents. To have and to hold the said railroads and appurtenances, and equipments and estate, property, rights, privileges, fran- chises, and interests above conveyed or transferred, or intended so to be, together with all and singular the emoluments, in- comes, and advantages, tenements, hereditaments, and appurte- nances thereto belonging or in anywise appertaining, and the reversion or reversions, rents, issues, and profits thereof, unto the said Nashville, Chattanooga & St. Louis Railway, its suc- cessors and assigns, forever. And the said Nashville & Tusca- loosa Railroad Company covenants to and with the said Nash- ville, Chattanooga & St. Louis Railway, and its assigns and successors forever, that the said premises herein conveyed are free and unincumbered, and that it has full right to convey the NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 243 same, and that it will forever defend the title to the same against the lawful claims of any and all parties whatever. In witness whereof, the Nashville & Tuscaloosa Railroad Company has caused its corporation name to be signed hereto, by its president and secretary, this thirteenth day of March, 1883. [SEAL] JAS. D. PORTER, President. J. H. AMBROSE, Secretary. The above deed was properly acknowledged and registered in the register's office of Hickman county, in trust deed book No. 2, p. 552-54. DEED TO THAT PART OF ROAD FROM CENTRE- VILLE TO LEWIS COUNTY LINE, NEAR KIMMINS. NASHVILLE & TUSCALOOSA RAILROAD COMPANY, j TO Deed. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY. ) This indenture, made and entered into this twentieth day of June, 1884, by and between the Nashville & Tuscaloosa Rail- road Company and the Nashville, Chattanooga & St. Louis Railway, both being corporations created and existing under the laws of the State of Tennessee, witnesseth: that, WHEREAS, Under a contract entered into between the two companies, the Nashville, Chattanooga & St. Louis Railway have constructed, built, and completed a line of narrow gauge railway from Centreville, in Hickman county, to a point on the line separating Lewis county from Hickman county, a distance of thirteen miles; and, WHEREAS, Under the terms of said contract, upon the com- pletion of said line of road, the Nashville & Tuscaloosa Railroad Company agreed to convey the same in consideration of said building and construction thereof by the Nashville, Chatta- nooga & St. Louis Railway: Now, therefore, in consideration of the premises, the said Nashville & Tuscaloosa Railroad Company hath granted, bar- gained, sold, and conveyed, and by these presents doth grant, sell, and convey, unto the Nashville, Chattanooga & St. Louis Railway, its assigns and successors, forever, all and singular 244 DEEDS RELATING TO CENTREVILLE BRANCH that branch of the Nashville, Chattanooga & St. Louis Railway known as the Centreville branch, and formerly known as the Nashville & Tuscaloosa Railroad at the extension of the same, beginning opposite the town of Centreville, in Hickman county, upon the north side of Duck river and extending by the way of ^tna furnace to the southern line of Hickman county separat- ing it from Lewis county, a distance of thirteen miles of com- / pleted narrow gauge road, together with all and singular the appurtenances thereof, all the lands, tracks, lines, rails, bridges, ways, rights of way, buildings, erections, fences, walls, fix- tures, privileges, rights and interests, real estate, contracts, leaseholds, and all other things of every kind, nature, and character, belonging or appertaining to said road, or any part or portion thereof, and all railway stations and depots with all appurtenances necessary and convenient for the sole, complete, and entire use and operation, as well as maintenance of said road or railway herein conveyed, also all right to use the roadbed, tracks, sidings, turnouts, and sw r itches, constructed or to be constructed. To have and to hold the said railroad and appurtenances, Fights, fran- and estate, property, rights, privileges, franchises, chises, etc.. J ' pass. and interests above conveyed or transferred, or in- tended so to be, together with all and singular the emoluments, incomes, tenements, and hereditaments and appurtenances thereto belonging or in anywise appertaining, and the reversion or reversions, rents, issues, and profits thereof, unto the said Nashville, Chattanooga & St. Louis Railway and its successors and assigns forever, as aforesaid, and the said Nashville & Tus- caloosa Railroad Company doth hereby covenant and agree to and with the said Nashville, Chattanooga & St. Louis Railway that it is the true and lawful owner of said property herein conveyed, and has a full right to convey the same, and that the same is free and unincumbered, and agrees and binds itself and successors forever to forever warrant and defend the title to the said property to the Nashville, Chattanooga & St. Louis Railway and its successors and assigns, against the lawful claims of all parties whatsoever. NASHVILLE, CHATTANOOGA & 8T. LOUIS RAILWAY. 245 In witness whereof, the said Nashville & Tusealoosa Railroad Company has caused its president and secretary to affix the name of the said company hereto, with its corporate seal, the day and date first above written. Erasures and interlineations made on first, ninth, twentieth, twenty-first, and twenty-fourth line of tirst page were made before signing. THE NASHVILLE & TUSCALOOSA RAILROAD COMPANY, [SEAL.] By JAS. D. PORTER, President. The above deed was properly acknowledged and registered in the register's office of Hickman county, in trust deed book No. 3, pp. 60-62. DEED OF SOUTHERN IRON COMPANY TO NASH- VILLE, CHATTANOOGA & ST. LOUIS RAIL- WAY OF ROAD FROM KIMMINS TO MANNIE, ON ALLEN'S CREEK. WHEREAS, The Southern Iron Company, a corporation char- tered by the laws of the State of Alabama, and which said cor- poration is now, and has been for some time, doing business in the States of Alabama and Tennessee and elsewhere, did, at a regular stockholders' meeting, held according to law, at which there was present twenty-one thousand five hundred and fifty- two shares of the capital stock of twenty-seven thousand shares, and all present voting for the following resolution: "That, for improving the property of the company and thereby permanently increasing its earning capacity, the board of directors, by and through the officers of the company, be, and they are hereby, authorized and empowered to erect and equip three additional furnaces on land now owned by the com- pany or to l>e acquired for this purpose, two of said furnaces to be located at or near Allen's creek, in Wayne county, Ten- nessee, and one on the company's Drouillard property, in Dickson county, Tennessee. " 2. That, to accomplish this and other purposes hereinafter mentioned, the directors be, and hereby are, authorized and empowered, in their discretion and as they may deem for the best interest of the company, (1) to sell or dispose of this com- pany's narrow gauge railroad, extending from /Etna to Allen's creek, and make a deed thereto, or to mortgage the same.'' 24:6 DEEDS RELATING TO CENTREVILLE BRANCH I hereby certify the above to be a true copy of an extract from the minutes of the stockholders' meeting of the Southern Iron Company, held at Huntsville, Ala., on the third day of May, 1892, same being entered on page 72 of the minute book of the Southern Iron Company. [SEAL.] J. A. COOPER, Secretary. AND, WHEREAS, in pursuance of said order of the stock- holders, the directors of said company did pass the following resolution at a meeting of the board of directors of the South- ern Iron Company, held August 6, 1892: " The proper officers of the company are hereby authorized, empowered, and requested "2. To sell to the Nashville, Chattanooga & St. Louis Rail- way Company, at the price of $125,000 ($100,000 to be paid in lawful money and $25,000 in bonds of the Nashville Iron, Steel & Charcoal Company), the narrow gauge owned by this company, extending from Kimmins, in Lewis county, Tennessee, to the Allen's creek mines of the company, in Wayne county, Tennessee, and to execute a deed thereto." I certify that the above is a correct copy of said resolution, and is entered on the minutes of the board of directors of this company. THE SOUTHERN IRON COMPANY, [SEAL.] By J. A. COOPER, Setfy <& Tres. AND, WHEREAS, Said Southern Iron Company has hereto- fore built and now owns a railroad beginning at Kimmin, a station on said railroad in the county of Lewis, in the State of Tennessee, near the southern line of Hickman county, in said state, and running from said station to the present terminus of said railroad at Mannie mines, on Allen's creek, in Wayne county, Tennessee, being a distance of eighteen miles as now laid out and constructed, consisting of roadbed, track, rails, crossties, chairs, iron, spikes, steel, splices, bolts, nuts, bridges, width of rieht an< ^ a 'l ther propery appurtenant thereto; also all of way. lands adjacent to said road, and fifty feet distant from the center thereof, and which constitutes the right of way, whether the same constituted a part of the original tract NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY.' 247 of said iron company or lands purchased by it from other per- sons; the lands purchased by it are described in the deeds of Lafayette Hates, Mrs. Byron Smith, - - Gilbert, John Pax- ton, John Hensley, E. P. Groves and wife, Harrison Smethurst, H. T. Christian, Allen Vandever, F. B. Williams, Dr. Moses, D. K. Hines, J. G. Grinder, B. F. Perryhouse, R. J. David- son, John Hensley, Mrs. J. Hulme, H. T. Christian, J. W. Christian, J. W. Linsey, D. T. Voorhees, A. Churchwell, Mrs. Churchwell, John Banks, A. C. Rasberry, W. P. Clark, and so much of the property originally bought by said Southern Iron Company as is included in said right of way as said road is now laid out and built; also, it has built section houses, de- pots, etc., on real estate not included in said right of way, and upon which section houses are now built as evidenced by the deeds of one or more of those named hereinbefore to said Southern Iron Company; also, said company owns lands which said Southern Iron Company have caused to be condemned, or has the right to condemn or has the license to use, as well as rights acquired by possession and use thereof, as is shown on map attached to this deed; and also franchises to operate said railroad and build the same and condemn property therefor; and, WHEREAS, Said Southern Iron Company did heretofore con- vey said property, together with other property, to the Central Trust Company of New York, by mortgage dated the - - day of - , 18 , and to enable it to make this conveyance, it has procured said trust company to release from the operation and effect of said mortgage, all the foregoing described prop- erty so that said Southern Iron Company might convey away the same; and, WHEREAS, The said Southern Iron Company now desires to sell the same, in order to erect two furnaces at Allen's Creek, which are to cost in the neighborhood of two hundred thousand dollars; and, WHEREAS, The Nashville, Chattanooga & St. Louis Railway is desirous of purchasing the same in the event said two fur- naces are erected, and that said Southern Iron Company will ship all the products, freight, etc., of their furnaces over this line of railroad: 24:8 DEEDS RELATING TO CENTREVILLE BRANCH Now, then, for and in consideration of the premises and for the further consideration hereinafter set out, the said Southern Iron Company, by virtue of the foregoing resolutions, has this day bargained, and does hereby alien, confirm, convey, and sell to the Nashville, Chattanooga & St. Louis Railway, a cor- poration chartered by the State of Tennessee, all the foregoing described property. The consideration referred to in the preamble to this deed is such that the said Nashville, Chattanooga & St. Louis Railway is to pay one hundred and twenty-five thousand Consideration. ,/,, ,, dollars tor the same, twenty- five thousand dollars of which is to be paid in first mortgage bonds of the Nashville Iron, Steel & Charcoal Company, the receipt of which is hereby ac- knowledged, and the remaining one hundred thousand dollars to be paid as the work on the said furnaces, to be erected as aforesaid, progresses. It is distinctly understood and agreed, however, and made a part of this consideration, that the said Southern Iron Company is to build the said two furnaces at Allen's creek, and expend all of the one hundred and twenty- five thousand dollars referred to above in their erection; that they are to ship all products of these furnaces over the Nash- ville, Chattanooga & St. Louis Railway, and pay a uniform rate of twenty-five cents per ton to or from Allen's creek in excess of rates to or from ^Etna, and on all shipments of ore, lime- stone, wood, and charcoal, they are to pay twenty-five cents per ton between Allen's creek and ./Etna. And the said Southern Iron Company covenants hereby that it is lawfully seized and possessed of all the personal and real es- tate and property aforesaid, together with the rights of way de- scribed herein, and upon which said railroad is located and constructed; that all of said property hereby conveyed it has a right to convey, and that all of said property so conveyed is free and clear of all liens, taxes, and other incumbrances. And said Southern Iron Company furthermore covenants and will forever warrant title to all the real estate herein described to the Nashville, Chattanooga & St. Louis Railway, its assigns and successors, forever. It further covenants and agrees to reim- NASHVILLE, CHATTANOOGA e regarded as an appropriation of so much of the land as the law authorized," which was two hundred feet. J)uck Riper Yalley Narrow Gawje Railroad Company v. Coc/irane, 3 Lea (Tenn.), 478. It is probable that the statute of limitations would run against the railway, under this act, as to such parts of right of way as adjoining landowners may be allowed to use and occupy for the statutory period, which is not the case on the main line and most of the branches. See discussion as to right of way on main line in notes to sees. 24 and 25 of charter of Nashville, Chattanooga fe St. Louis Kailway, ch. 1, herein. Distance built when road purchased. The line from Co- lumbia to Fayetteville, a distance of about forty-nine miles, had been completed when the Nashville, Chattanooga & St. Louis Railway purchased this road. Where road chartered termini. The Duck River Valley Nar- row Gauge Railroad Company was chartered by the chancery court, at Waverly, Tenn., on November 4, 1872, as will ap- pear from minute book 1, page 745 et eq., of said court, which decree is also set out herein below. The road was chartered to run from a point at or near the town of Johnsonville, in Hum- phreys county, to a point at or near the town of Fayetteville, in Lincoln county, passing through or near to the towns of Cen- treville, in Hickman county; Columbia, in Maury county; Lewis- burg, in Marshall county, and Petersburg, in Lincoln county, with the right, power, and privilege to extend said road from Fayetteville to the Nashville & Chattanooga Railroad, and to build any branch the company saw tit. The company built the road from Columbia to Petersburg, and then leased the road to the Nashville, Chattanooga & St. Louis Railway. While operating the road under this lease, the latter company extended the road to Fayetteville, under the charter of the said Duck River Valley Narrow Gauge Railroad Company, and subse- 254 ORIGINAL CHARTER COLUMBIA BRANCH quently purchased the entire line from Columbia to Fayette- ville, as heretofore explained. The road from Fayetteville to the Nashville, Chattanooga & St. Louis Railway was not built under the authority above granted, but under the charter and amendments of the Winchester & Alabama Railroad Com- pany. See charter of that road. Refer to index. ORIGINAL CHARTER OF DUCK RIVER VALLEY NARROW GAUGE RAILROAD. (Granted by chancery court at Waverly, Tennessee, under Acts Tenn., 1870-1, ch. 54; see minute book 1, p. 745.) E. F. FALCONETTE ET ALS., Ex PARTE. SECTION 1. Preamble. This cause came on and was finally heard this fourth day of November, 1872, by and before the Hon. George H. Nixon, chancellor, holding the chancery court at Waverly, Humphreys county, Tennessee, upon the original and amended petition heretofore filed in this case, and the pro- ceedings heretofore had herein, and the statement of the pres- ident and directors of the Duck River Valley Narrow Gauge Railroad Company, and the petition of said president and di- rectors, praying to be chartered and incorporated as a corpora- tion and body politic by the name and style of the Duck River Valley Narrow Gauge Railroad Company. And it appearing to the court that, by former decrees of this court in this case, commissioners have heretofore been ap- pointed to solicit and receive subscriptions of the capital stock, for the purpose of building and constructing a narrow gauge railroad from, at, or near the town of Johnsonville, in Hum- phreys county, to the town of Fayetteville, Lincoln county, Tennessee; and that said commissioners have received subscrip- tions of the capital stock of said company the sum of about one hundred and fifty thousand dollars; that the length of said con- templated railroad, including side tracks, is about one hundred and thirty miles, and the amount so subscribed exceeds the sum of one thousand dollars per mile; and, it appearing to the court that, after having first given notice, as required by law, the stockholders of said proposed railroad met in the town of Co- lumbia, Maury county, Tennessee, on the eleventh of Septem- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 255 her, 1872, for the purpose of organizing said company and electing nine directors thereof, when the following persons were duly elected as said directors, to wit: L. S. Goodrich, Humphreys county, Tennessee; O. A. Nixon and H. A. Shause, Hickman county, Tennessee; Ed Williams and L. D. Myers, Maury county, Tennessee; R. G. McClune, Marshall county, Tennessee; W. B. Hampton, Lincoln county, Tennessee; Wil- liam Smith, Moore county, Tennessee; M. R. Campbell, Coffee county, Tennessee; that on September 12, 1872, said directors so elected met in the town of Columbia, in said county of Maury, and, after having been first duly sworn by Benjamin Harrison, Esq., an acting justice of the peace for said county of Maury, proceeded to organize said company, and elected L. D. Myers, one of said directors, president of said company, and elected E. F. Falconnette, chief engineer, and John B. Hamilton, secretary and treasurer, of said company. And it appearing from the statements of said president and directors of said company, signed by said president and direct- ors, and countersigned by the said secretary and treasurer thereof, officially attested by said secretary and treasurer of said company, and proved and acknowledged as deeds for lands are required to be probated, and which said statement is tiled as a part of the record in this cause, and which statement sets forth the names and places of residence of each of the directors of said company, the name and style of the company, the de- scription of the line, the terminus of said road, the general route, the amount of capital stock required for its construction, the amount actually subscribed, the shares into which the cap- ital stock is divided, and the amount of said capital stock so subscribed, that has at this time been paid in and collected. And, it appearing to the court that said company so organ- ized for the purpose of building and constructing a narrow gauge railroad from Johnsonville, Humphreys county, to Fay- etteville, Lincoln county, Tennessee, have had said road sur- veyed, have adopted as the name and style of said company, The Duck River Valley Narrow Gauge Railroad Company, and have divided the capital stock thereof into shares of twenty- 256 ORIGINAL CHARTER COLUMBIA BRANCH five dollars each, have adopted as the present termini! of said road at or near the town of Johnsonville, Humphreys county, and at or near the town of Fayetteville, Lincoln county, Ten- nessee, and that by calculation and survey, it is estimated that the amount required for the construction of said road is about eight hundred and eighty thousand and sixty-three dollars. And it further appearing that said president and directors of said company contemplate extending said railroad from the said town of Fayetteville to the Nashville & Chattanooga Rail- road, and desire to have granted them the right, power, and privilege of building and constructing such branches to their said railroad, in the State of Tennessee, as they may deem necessary and proper to advance the interest of their said rail- road, and of the public. And it further appearing to the court that said railroad com- pany have in all respects fully complied with the law in this behalf, and the court being of opinion that the said railroad company have a right to be chartered and incorporated, and that the rights and privileges by them prayed and asked for are not in conflict with the public good and morals, nor with the constitution and laws of the State of Tennessee or of the United States: SEC. 2. Incorporation, name, general powers. it is there- fore ordered, adjudged, and decreed, by the court, that said railroad company, and said president and directors thereof, be, and are hereby, chartered and incorporated as a body corporate and politic by the name and style of the Duck River Valley Narrow Gauge Railroad Company, and by such name to sue and be sued, plead and be impleaded, and to have and enjoy a right of succession for ninety-nine years, with a capital stock of one million dollars, with the right, power, and Capital stock. ... . .... privilege to increase the same to hve million dollars, and with the right, power, and privilege on the part of said company to build and construct a railroad with such breadth or gauge thereof as they may desire, elect, and adopt from a point at or near the said town of Johnson- ville, in Humphreys county, to a point at or near the said town NASHVILLE, CHATTANOOGA & 8T. LOUIS RAILWAY. 257 of Fayetteville, Lincoln county, Tenn., passing through or near the town of Centreville, Hickman county; Columbia, Maury county; Lewisburg, Marshall county; Peters- burg, Lincoln county, Tenn., with the further right, power, and privilege on the part of said railroad company to extend said railroad, if the president and directors and a majority of the stockholders may desire, elect, and determine, from said town of Fayetteville to the Nashville & Chattanooga Railroad, and to build any branch or branches to said Duck May bulld River Valley Narrow Gauge Railroad that the said branches - president and directors, by and with the advice and consent of the stockholders of said railroad, may desire, determine, and elect, and with all the rights, powers, and privileges heretofore granted by the general assembly of the State of Tennessee to the Tennessee & Alabama Railroad and Nashville & Decatur Railroad Companies,* and with all the rights, powers, and privileges granted to railroad companies by the act of assembly of State of Tennessee, ch. 54, approved January 30, 1871, and all acts of said general assembly amendatory thereof, and with the further right, power, and privilege to do all things neces- sary and proper for the building and constructing of said rail- road, and to pass all by-laws, rules, and regulations not incon- sistent with the constitution and laws of the United States or the State of Tennessee. Ordered, that the clerk and master of this court certify a copy of this decree to the president of said company, and that said company and L. S. Goodrich, their security, pay the cost of this cause, for which execution will issue. Ordered, that court adjourned. [SIGNED.] G. H. NIXON, Chancellor. 1. The above decree is of record in the office of the chancery court at Waverly, Tenn., in minute book 1, p. 745, Humphreys county, Tenn. *2. Charter construed. The supreme court, in construing 1 this charter, held that the part of the above incorporating decree attempting' to vest in the company all the powers conferred in the charters of the Nashville & Decatur and Tennessee fe Alabama Railroad Companies was void, but that the charter was valid as to all powers conferred as con- tained in Acts 1870-71. ch. 54, approved January 30, 1871, and amend- ments thereto, as referred to in the above decree. 9 Bax. (Tenn.), 488. 3. Same; width of right of way. The supreme court in another* case, in construing this charter, held that "even assuming that the company 17 258 DEED TO COLUMBIA BRANCH might, by following the statute, have taken and appropriated, at its option, less than one hundred feet on each side, yet having- failed in any way to designate the land to be appropriated, their entry and construc- tion of their road must be regarded as an appropriation of so much of the land as the law authorized," which was two hundred feet. 3 Lea (Tenn.), 478. 4. For full discussion of railway's ownership of right of way, etc., see index. CHAPTER XX. DEED TO DUCK RIVER VALLEY NARROW GAUGE RAILROAD. [EXECUTED NOVEMBER 23, 1887.] DEED. WHEREAS, The Duck River Valley Narrow Gauge Railroad Company is a corporation chartered under the laws of the State of Tennessee, and which heretofore built and operated a rail- road from the city of Columbia, in the county of Maury, State of Tennessee, to the town of Fayetteville, in the county of Lincoln, state aforesaid; and, WHEREAS, Heretofore, on the second day of October, 1879, said Duck River Valley Narrow Gauge Railroad Com- / O pany leased its road, with all its appurtenances, fixtures, and property, to the Nashville, Chattanooga & St. Louis Railway Company for a period of forty years; and, WHEREAS, Both parties to said lease desire to end the same, heretofore said Duck River Valley Narrow Gauge Rail- road Company, together with the stockholders, adopted the following resolutions, to wit: WHEREAS, At a meeting of the stockholders of the Duck River Valley Narrow Gauge Railroad Company, held on the eighth day of March, 1887, at Columbia, Tennessee, a com- NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 259 mittee was appointed to confer with the Nashville, Chatta- nooga & St. Louis Railway Company, with the view to agree on terms for the sale and purchase of the property and fran- chises and individual stock of this company to the Nashville, Chattanooga & St. Louis Railway; and, WHEREAS, James S. Ewing, T. D. Williamson, W. J. Leonard, F. J. Ewing, W. J. Andrews, and E. C. McDowell were appointed a committee, under this resolution, to treat with the said Nashville, Chattanooga & St. Louis Railway, and, after conference with said Nashville, Chattanooga & St. Louis Railway, the terms of agreement suggested by said committee, and accepted by said Nashville, Chattanooga & St. Louis Rail- way, were adopted, as follows: Articles of agreement and contract entered into by and be- tween the Duck River Valley Railroad Company, its directors and stockholders, to be known herein as the party of the first part, and the Nashville, Chattanooga & St. Louis Railway, to be known as the party of the second part. 1. The party of the first part agrees and binds itself and themselves to transfer and deliver to the party of the second part, by the first of September, 1887, all the stock now held by the individuals or corporations in the company of the party of the first part, and to deliver to the party of the second part, all the property of every nature and kind belonging to said company, including franchises, roadbed, cross-ties, depot houses, depots, switches, turnouts, iron, tools, implements, and fixtures, cars, engines, and all property used or necessary to be used in the operations of said road, and now used and owned thereby. 2. Upon which being done, as set out in the first section hereof, the Nashville, Chattanooga & St. Louis Railway agrees to accept said stock, property, and franchises, and binds itself to make said railroad track to the standard gauge, and to equip the same as a good, substantial, .standard gauge railroad, by the thirty-first day of December, 1888, and to operate the same un- der its franchises and charter, as a part of the Nashville, Chat- tanooga & St. Louis Railway system, at the expense of the 260 DEED TO COLUMBIA BRANCH party of the second part, and to assume and pay certain stock notes of the Duck River Valley Narrow Gauge Railroad, not exceeding five thousand five hundred and fifteen dollars, and interest thereon. And the party of the second part agrees and undertakes, as owner of said corporation, to take care of all the mortgage debts of the party of the first part, and, as respects these, to be substituted to the liabilities of the party of the first part; and, WHEREAS, Said proposed agreement was reported back to an adjourned meeting of the stockholders of the Duck River Valley Narrow Gauge Railroad Company, held at Columbia, on the twenty-second day of March, 1887, and a resolution was adopted at said meeting authorizing the directors of said rail- road company to apply to the county court of Marshall county and to the city of Columbia, requesting that an election be had under the law providing for that purpose, to authorize the sale of the stock held by the said county and said city of Columbia, as well their assent to the sale and transfer of the corporate property of said railroad; and, WHEREAS, Said election was held on the sixth day of August, 1887, for the county of Marshall, and on the twenty-second day of June, 1887, for the city of Columbia, and resulted in au- thorizing the sale of the stock of said city of Columbia and said county of Marshall, and of the corporate property, franchises, rights, etc., as set out in the articles of agreement as proposed between said committee and the said Nashville & Chattanooga Railway to the said Nashville, Chattanooga & St. Louis Railway, in accordance with the laws of the State of Tennessee; and, WHEREAS, The individual stockholders of this company have also authorized and ratified the sale of their stock and of the corporate property and franchises of this company to said Nashville, Chattanooga & St. Louis Railway: Now, THEREFORE, Be it resoJved by the stockholders of the Duck River Valley Narrow Gauge Railroad Company, in reg- ular annual convention assembled, that the proposed agreement as hereinbefore set out, made between said committee and said NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 261 Chattanooga & St. Louis Railway, be, and the same is hereby, ratified and adopted, and the president and directors of the company are hereby authorized, empowered, and directed to execute all proper deeds and conveyances and all other articles of agreement necessary to convey all of the rights, properties, franchises, and easements and immunities of this company in and to its railroad, running from the city of Columbia, in the county of Maury, through Lewisburg, in Marshall county, to Fayetteville, in the county of Lincoln, being between forty- eight and forty-nine miles of narrow gauge railroad, together with all sidings, turnouts, switches, properties, depots, depot grounds, tools, rolling stock of every kind and nature whatever used in operating and carrying on the business of said railroad company, to the Nashville, Chattanooga & St. Louis Railway, upon the terms and conditions set out in said agreement afore- said; and, WHEREAS, The city of Columbia owned stock in said rail- road company to the amount of fifty thousand dollars, and the county of Marshall owned stock in said railroad company to the amount of one hundred and fifteen thousand five hundred dollars, and the county of Maury owns fifteen hundred dollars of said stock of said railroad company, and certain individuals owned the balance of said stock; and said county of Marshall and said city of Columbia have, by a vote of the people, accord- ing to the laws of the State of Tennessee, and by the requisite majority, as well as other stockholders, ratified said agreement hereinbefore set out; and, WHEREAS, It is now desired to execute said contract and agreement in full, and, to this end, the following deed or con- tract is entered into: 1. The Duck River Valley Narrow Gauge Railroad Company does hereby bargain ami sell, and transfer and deliver, to the Nashville, Chattanooga & St. Louis Railway, its road aforesaid, with the franchises thereof and all the property, including road- bed, cross-ties, depot houses, depots, switches, turnouts, tools, engines, easements, rights of way, real estate, cars, etc., used to carry on said road; and also has caused its stockholders to 262 DEED TO COLUMBIA BRANCH transfer the stock of the corporate and individual stockholders in said corporation, except a small amount of stock held by in- dividuals, to said Nashville, Chattanooga & St. Louis Railway. And, in consideration of the premises, the Nashville, Chatta- nooga & St. Louis Railway hereby agrees to accept said fran- chises, property, and stock aforesaid, and hereby covenants, agrees, and binds itself to widen said railroad track to the standard gauge, and to equip the same as a good standard gauge railroad, with steel rails, by the thirty-first day of De- cember, 1888, and to operate the same under the franchises and charter of said Duck River Valley Narrow Gauge Railroad, at the sole expense of the Nashville, Chattanooga & St. Louis Railway. And it further assumes to pay certain stock notes of said Duck River Valley Narrow Gauge Railroad Company not ex- ceeding in amount five thousand five hundred and fifteen dol- lars and $772.10 to cover interest thereon; and it will, upon the execution and acknowledgment of this deed of conveyance, deliver its certified check for said sum; and said Nashville, Chattanooga & St. Louis Railway hereby assumes to take care of the mortgage debts of said railroad company, as shown in two mortgages, one registered in the register's office of Maury county, book Z, vol. 2, pp. 200-210, securing two hundred and fifty thousand dollars of mortgage bonds and interest thereon, and the other registered in mortgage book O, vol. 3, pp. 329-337 inclusive, in the said office of said county, secur- ing the payment of one hundred and forty thousand dollars of said bonds and interest thereon. And the said Duck River Valley Narrow Gauge Railroad Company hereby covenants with the Nashville, Chattanooga & St. Louis Railway that it is lawfully seized and possessed of said property, and has a good right to convey the same, and it does hereby warrant and defend the title to said property to the said Nashville, Chattanooga & St. Louis Railway forever. In witness whereof, the said Duck River Valley Narrow Gauge Railroad Company and the said Nashville, Chattanooga & St. Louis Railway have caused their proper officers of their NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 263 respective companies to affix the corporate names and seals of said companies hereto. This 23d day of November, 1889. DUCK RIVER VALLEY NARROW GAUGE RAILROAD COMPANY, [SEAL.] BY J. A. McRADY, President. H. K. Moss, Secretary. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, [SEAL.] BY J. W. THOMAS, President. J. H. AMBROSE, Secretory. The above deed was duly acknowledged and registered in register's office of Maury county, in book O, vol. 3, pp. 484-488; in Marshall county, in book 2 E, pp. 61-64; in Lincoln county, in records deed book S, pp. 350-355. 264 ABSTRACT OF TITLE SEQUATCHIE VALLEY BRANCH CHAPTER XXI. SEQUATCHIE VALLEY BRANCH. [COMPOSED OF JASPER, PIKEVILLE, AND INMAN BRANCHES.] How acquired by Nashville, Chattanooga & St. Louis Rail- way. What is known as the Sequatchie Valley branch that is, the road from Bridgeport, Ala., to Pikeville, Tenn., with a branch road on said stem from Victoria to Inman may be di- vided into three parts: (1 ) The road from Bridgeport to Jasper, (2) the road from Jasper to Pikeville, (3) the road from Vic- toria to Inman. These three subdivisions were acquired by the Nashville, Chattanooga & St. Louis Railway in different ways. For convenience the first will hereafter be called the Jasper branch; the second, the Pikeville branch, and the third the Inman branch. Their method of acquisition, width of right of way, etc. , will now be discussed in the order named. HOW Jasper branch acquired. The Jasper branch from Bridgeport, Ala., to Jasper, Tenn., was built by the Nashville, Chattanooga & St. Louis Railway, under and by virtue of an act of the legislatures of both Tennessee and Alabama. The Tennes- see act, which may be found in Acts 1857-58, ch. 161, p. 382, sec. 3, provide;!, among other things "that the state aid here- tofore granted to the Memphis & Charleston Railroad Company for the purpose of extending said railroad from Stevenson to Chattanooga, on the north side of Tennessee river, the sum of ten thousand dollars per mile, be, and the same is hereby, trans- ferred and granted to the Nashville & Chattanooga Railroad " O Company for the purpose of constructing a branch railroad from Bridgeport, or some suitable point on the Nashville & Chatta- nooga Railroad, to some point on the line of the extension of said Memphis & Charleston Railroad, the same not to extend beyond the town of Jasper, in Marion county, with the same NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 265 liens retained to the state as are provided for in said act. For act itself, see next chapter. The Alabama act, which may be found in Acts 1859-60, No. 216, provided "that the act granting the right of way to the Nashville & Chattanooga Railroad Company through Jackson county, and the privilege of constructing a bridge across Ten- nessee river in said county (approved January 21, 1850), be so amended that the Nashville <& Chattanooga Railroad Company shall have the right to construct and operate a branch of their road from a point on the line of their road at or near Bridge- port, in Jackson county, to the Tennessee state line, in a direc- tion to Jasper, Tenn., with all the rights, powers, and privi- leges pertaining to the main line, and subject to the same lia- bilities and restrictions." For Acts of Alabama, approved January 21, 1850, above referred to, see p. 55 herein. The Nashville & Chattanooga Railroad Company, which has subsequently changed its name to the Nashville, Chattanooga & St. Louis Railway, as heretofore explained, accepted the Tennessee act, as will appear from the minutes of the com- pany of April 16, 1858, and, subsequently, the Alabama act. The road was then built from Bridgeport, Ala., to Jasper, Tenn., a distance of about twelve miles. Width of right of way of Jasper branch. As will appear from the above acts of Alabama, the road from Bridgeport, Ala., to the Tennessee state line was authorized to be con- structed, with all the rights, powers, and privileges of the main line. Hence, the width of the right of way will be controlled by sections 24 and 25 of the charter of the Nashville, Chatta- nooga & St. Louis Railway, ch. 1, herein, which give one hun- dred feet on each side of the center of the road, in the absence of any contract with the original landowner to the contrary, when necessary for railroad puqwses. The act of Tennesse, above set out, authorizing the extension of the road from the Alabama state line to Jasper, does not specifically confer any particular width of right of way, but this was unnecessary, as the legislature had previously, by Acts 266 ABSTRACT OF TITLE SEQUATCHIE VALLEY BRANCH 1849-50, ch. 266, sec. 3, passed January 19, 1850, provided "that the Shelby ville branch, and such other branches of the Nashville & Chattanooga road as may be made, shall have all the rights and privileges, and shall be placed in all respects on the same footing, with the Nashville & Chattanooga road." This being so, the width of right of way from the state line to Jasper would also be one hundred feet on each side of the cen- ter of the road, when necessary for railroad purposes, in the absence of any contract with the original landowner to the contrary. There can be no question of this. 1. For discussion of width of right of way in Nashville, Chattanooga & St. Louis Railway charter, which also controls here, see sees. 24 and 25 of said charter, ch. 1, herein. 2. For discussion of method of taking more than one hundred feet on each side of the center of the road, when necessary for railroad purposes, see " Right of Way," Eminent Domain, herein. Refer to index. 3. State aid. By Acts Tenn., 1865-6, ch. 14, p. 33, state aid was granted to Nashville & Chattanooga Railroad Company to build the Jasper branch. Pikeville branch, how acquired. The road from Jasper to Pikeville was authorized to be constructed by the Sequatchie Valley Railroad Company, which corporation was chartered by the Acts of Tenn., 1868-69, ch. 11, p. 93, sec. 30, to construct a road from Jasper, in Marion county, to Pikeville, in Bledsoe county. Said charter is set out further on in this chapter. After its incorporation the company built the road from Jasper to Victoria, and on January 27, 1877, in pursuance of a reso- lution of its stockholders and directors, it sold said road, right of way, franchises, etc., to the Nashville, Chattanooga & St. Louis Railway. The consideration was the assumption on the part of the latter company of all the liabilities of the said Sequatchie Valley Railroad Company, amounting to about $75,000. A deed to said road, franchises, etc., is registered in the register's office of Marion county, Tenn., in book L, vol. 1, p. 308, which deed is also set out in the next chapter. After the purchase, as aforesaid, the Nashville, Chattanooga & St. Louis Railway, under and by virtue of the franchises ac- NASHVILLE, CHATTANOOGA er branch railroad from Vic- toria to Inman, Marion county, Tennessee, and such further extensions or branches of said railroad as may be hereafter constructed under the resolution of the board of directors au- thorizing the construction of this branch, together with all their property, appurtenances, and franchises. Such mort- gage is of even date herewith, executed and delivered unto the Central Trust Company of New York as trustee, and has been duly recorded in each of the counties of the State of Tennessee where said line of railroad is situated. " This bond shall pass by delivery or by transfer on the books of the said railway, at its agencies in the city of New York, and, after any such registration of ownership on the books of such agencies, duly certified on the back hereof by the transfer agent, no transfer hereof shall be valid or pass any title hereto, unless made in writing upon the books of such agency, unless the last precedent transfer has been made to bearer, in which event this bond shall become thereby transferable by de- livery. This bond shall continue subject to successive registra- tions and transfers to bearer aforesaid, at the option of any holder thereof, in accordance with the above provisions. No bond of this series shall be valid or obligatory unless the same is duly authenticated by a certificate, indorsed on the back thereof, duly executed by the said Central Trust Company, as trustee. u IN WITNESS WHEREOF, The said Nashville, Chattanooga & St. Louis Railway has caused the foregoing to be attested by its president and secretary, and its corporate seal to be attached. "This, the first day of January, A.D. 1883. " , Secretary. , President. [Trustee's Certificate.] 4 ' It is hereby certified that the within bond is one of a series of bonds which are all equally secured by the mortgage or deed 272 DEEDS, ACTS, ETC. SEQUATCHIE VALLEY BRANCH of trust mentioned herein, and delivered to the undersigned as trustee. CENTRAL TRUST COMPANY OF NEW YORK, Trustee. 1 ' By - , President. [Form of Coupons.] " $30. The Nashville, Chattanooga & St. Louis Railway will pay the bearer thirty dollars in gold coin of the United States, of the present weight and fineness, in the city of New York, being six months' interest on its bond No. . "R. C. BRANSFORD, Secretary.' 1 '' All of which bonds have been executed and delivered to the Tennessee Coal, Iron & Railroad Company, the receipt whereof is hereby acknowledged. The said Tennessee Coal, Iron & Railroad Company has granted, bargained, sold, assigned, trans- ferred, and conveyed, and by these presents does grant, bargain, sell, assign, transfer, and convey unto the Nashville, Chatta- nooga & St. Louis Railway, and to its successor or successors and assigns, forever, a certain railroad, commencing at Victoria, Tenn., and running thence to Inman, Marion county, Tenn. , about five and one-half miles, and known as the Inman branch, together with all and singular the estate and property, real, personal, and mixed, and all fixtures, rights, privileges, fran- chises and easements, and all the tracks, lines, rails, bridges, ways, rights of way, and materials, buildings, piers, wharves, erections, fences, walls, fixtures, privileges, rights and inter- ests, real estate of every kind and character, and all the tolls, incomes, issues, and profits to be had or derived from the same, or any part or portion thereof, and all the railway stations and depots, with all the appurtenances necessary and conven- ient for the sole, complete, and entire use and operation of said branch railroad; also all and every other estate, interest, property, or thing, real, mixed, or personal, which the said Tennessee Coal, Iron & Railroad Company owns or holds be- longing to, connected with, and being part of, and necessary or convenient for the use, occupation, operation, and enjoyment of said branch railroad and property, rights, privileges, and fran- chise, or any part or portion thereof; and also all the rights NASHVILLE, CHATTANOOGA 20, so as to authorize the company "to construct a railroad or roads, with one or more tracks, 'to be used with steam, animal, or other power, from any point or points on the Nashville & Chattanooga Rail- road to any or all the coal mine or lands now owned, or that ABSTRACT OF TITLE TO TRACY CITY BRANCH may hereafter be owned, by said Sewanee Mining Company, on the Cumberland mountains,'" etc. After its construction, a suit was filed by Thos. Richardson against the company, in the circuit court of the United States at Nashville, Tenn., and judgment was rendered in his favor for a large amount. J. B. Clement, the United States marshal, having the writ, levied upon this railroad and other real estate of the company, to satisfy the judgment. At the sale that fol- lowed, Thomas Richardson became the purchaser of the road, franchises, etc., and a deed was duly executed to him on May 15, 1860, and registered in the register's office of Franklin county, in book Z, p. 290; in Marion county, in book H, p. 487. Thomas Richardson conveyed the road, franchises, etc., to John Cryder, on June 19, 1860, a deed to which is registered in the register's office of Franklin county, in book 1, p. 26; in Marion county, in book H, p. 598; Grundy county, in book D, p. 531. John Cryder, Jno. G. Dale, A. S. Colyar, A. M. Rutledge, B. F. McGee, E. F. Colyar, E. L. Best, Jno. A. L. Best, and Samuel Best, subsequently conveyed the road, franchises, etc., to the Tennessee Coal & Railroad Company, on August 31, 1866, under an agreement to pool their interests and form a new company (which agreement is incorporated in the deed). A. S. Colyar and the other conveyors joined in the deed with John Cryder, as they had acquired an interest by virtue of some judgments secured against the Sewanee Mining Company, and this deed and agreement was made as a settlement of all matters between them. The deed is registered in the register's office of Franklin county, in book 2, p. 362; in Marion county, in book I, p. 158; in Grundy county, in book E, pp. 424-432. Subsequently, the Tennessee Coal & Railroad Company, that had in the meantime changed its name to the Tennessee Coal, Iron & Railroad Company, conveyed the road, franchises, etc. , to the Nashville, Chattanooga & St. Louis Railway, as hereto- fore explained. 1. The Tennessee Coal A Railroad Company was chartered by Acts Tenn., 1859-60, ch. 198, p. 582, approved March 24, 1860. It was also granted certain rights in Alabama by act passed February 10, 1893. NASHVILLE, CHATTANOOGA erstructures, rails, sidings, switches, turnouts, walls, fences, rights of way, cross-ties, lain or on the sides, depot houses and station houses, engine house, car house, freight house, sheds, buildings and repair shops, depot, land and ground provided and used for siding, excluding what is known as the Rattlesnake branch and its switches and sidings, running from Tracy City to Rattlesnake mines, northeast from Tracy City, and including all other property of said company not excluded herein. A plan of said railroad has been pre- pared and mapped, and the same is here specifically referred to and adopted, and the same is made a part of this deed, and said right of way for said road is fifty feet on either wldth of side of the center of said track between its termini, rlght of wty - except at a point near Monteagle, between the fourth and fifth mile from Tracy City, viz. : From the point where Holmes' track joins the railroad on the south side to where the west boundary of Summer's track crosses the track, as indicated by a rock, and the same is shown on said map, and opposite the lands of Keith Bennett and Holmes, as shown on sides. Also the following right of way in Tracy City: Right of way for Nashville & Chattanooga Railway in Tracy City, beginning at the southwest corner of lot No. 288, 50 feet from the center of the track; thence north 58" 15" east 332.1 feet to a stake opposite St. Clair street; thence north 52' 20" east 207.2 feet to a stake on the culverts; thence north 45' 45" east 216.7 feet to a stake; thence north 36' 52" east 105.2 feet to a cross on sand rock; thence north 27' 55" east 278.5 feet to a stake near the west side of the Tennessee Coal, Iron & Railway Company store; thence south 6-4' 13" east 35 feet to a stake 15 feet from the center of track; thence north 21' 47" east 55 feet to a stake 15 feet from the center of the track; thence north 50' .01" west 35 feet to a stake near the east side of store, and 50 feet from the center of track; thence north 15' 39" east 168.3 feet to a stake 5 feet past the northwest corner of the old depot, and 50 feet from the center of the track; thence north 5' 55" east 290.6 feet to a stake; thence north 13' 24" east 274.4 feet to a stake 282 DEED TO TRACY CITY BRANCH near south line of Bersheba street; thence north 22' 39.2" east 207.6 feet to a stake; thence north 11' 53" east 161.7 feet to a stake near south line of Coke street; thence north 63' 43" west 18.2 feet to a stake 50 feet from center of track; thence north 15' 16" east 366.3 feet to a stake; thence north 9' 52" east 639.5 feet to a stake 6 feet to west of center of coke-oven track; thence north 3' 47" east 366.3 feet to a stake near the lower end of coke-oven; thence north 17' 48" east 550.1 feet to a stake at upper end of coke-oven track, west side; thence south 30' .07" east 17.3 feet to a stake on the east side of said track; thence south 16' 55" west 619.5 feet to a stake 4.5 feet east of center of coke-oven track; thence south 79' 19" east 87.5 feet to a stake 50 feet to west of center of main track; thence north 25' 21" east 255.2 feet to a stake 5 feet west of center of track; thence north 8' 37" east 575.2 feet to a stake under- ; thence north 23' 45" east 356.4 feet to stake near head of cut, and 4. 5 feet to west of center of track; thence north 84' . 07" east 39.4 feet to stake on bank; thence south 15' 36" west 809.8 feet to stake 7.5 feet to east of center of track; thence south 14' 46" east 195.9 feet to stake; thence south 12' 36" west 80 feet to stake; thence 75' 27" east 165 feet to stake; thence south 15' 33" west 565. 1 feet to stake; thence south 39' 50" west 474.5 feet to stake 50 feet to east of center of track, passing the northwest corner of Terrill's fence at 70 feet; thence south 12' .09" west 117.3 feet to stake near the company's stable, and 50 feet to east of the center of track; thence south 18' .09" west 647.2 feet to stake in road opposite the company's store and 50 feet to east of center of track; thence south 26' 21" west 144.8 feet to a stake in the sawmill yard, and 50 feet from the center of the Nashville & Chattanooga track, crossing the Rat- tlesnake switch at 60 feet; thence south 53' 15" east 318.5 feet to stake in the center of the stable, branch, or creek; thence south 23' 53" west 257.9 feet to stake on the east bank of said branch, and near its junction with a small branch from under the railway; thence north 68' west 80 feet, crossing said small branch at 40 feet; thence 69' 17" west 171.7 feet to a stake at northeast corner of lot No. 36; thence west with an easterly NASHVILLE, CHATTANOOGA with and necessary to the proper use of said road and its fran- chises heretofore used in the operation of said road. Also the telegraph line running from the l>eginning of said road, at the tunnel aforesaid, at or near the town of Cowan, in Franklin county, to Tracy city, in the county of Tele - raph Grundy, including posts, seal or unseal, all right of llne- way, all wires, batteries, fixtures or appurtenances, offices and furniture, together with all the rights, privileges, and fran- chises, appertaining or belonging to said telegraph line. To have and to hold to the said Nashville, Chattanooga & St. Louis Railway, all the property, real or personal, franchises, rights, appurtenances and privileges thereto appertaining and belonging, as hereinbefore specified, mentioned, described, or referred to, its assigns, vendors, or successors, forever. And the Tennessee Coal, Iron & Railway Company covenants with the Nashville, Chattanooga & St. Louis Railway Company, its as- signs, vendors, and successors, that it is lawfully seized and possessed of all of said property, and that it has a good right to convey the same in fee simple and absolutely, as set out herein, and that the same is free from all liens, mortgages, and other incumbrances whatever, in every part and in every respect, and the said Tennessee Coal, Iron Sc Railroad Company binds itself to the Nashville, Chattanooga & St. L:>uis Railway, its assigns, vendors, and successors, to forever warrant and de- fend the title to each and every j>art and parcel of the property, real or personal, hereinbefore described, referred to, or men- tioned as passing by this deed. 284 DEED TO TRACY CITY BRANCH In consideration of the premises and conveyances hereinbe- fore had and made, the Nashville, Chattanooga & St. Louis Kailway has executed the following described six per cent, per annum coupon bonds of the Nashville, Chattanooga & St. Louis Railway, being six hundred in number, each one thousand dol- lars, and secured by first lien upon the road, property, and franchise, hereinbefore described, each dated January 1, 1887, with coupon due January 1, 1888, and all subsequent coupons attached, both principal and interest, payable in lawful money of the United States, in New York city, coupons payable Jan- uary and July for each successive year, of which the Tennessee Coal, Iron & Railway Company have received the following five hundred bonds, and the Nashville, Chattanooga & St. Louis Railway may sell the other hundred, appropriate the proceeds to the improvement and equipment of said road and property: Twenty bonds of $1,000 each, numbered from 1 to 20, and due January 1, 1892; twenty of $1,000 each, numbered from 21 to 40, and due January 1, 1893; twenty bonds of $1,000 each, numbered from 41 to 60, and due January 1, 1894; twenty bonds of $1,000 each, numbered from 61 to 80, and due January 1, 1895; twenty bonds of $1,000 each, numbered from 81 to 100, and due January 1, 1896; twenty bonds of $1,000 each, numbered from 101 to 120, and due January 1, 1897; twenty bonds of $1,000 each, numbered from 121 to 140, and due January 1, 1898; twenty bonds of $1,000 each, numbered from 141 to 160, and due January 1, 1899; twenty bonds of $1,000 each, numbered from 161 to 180, and due January 1, 1900; twenty bonds of $1,000 each, numbered from 181 to 200, and* due January 1, 1901; twenty bonds of $1,000 each, numbered from 201 to 220, and due January 1, 1902; twenty bonds of $1,000 each, numbered from 221 to 240, and due January 1, 1903; twenty bonds of $1,000 each, num- bered from 241 to 260, and due January 1, 1904; twenty bonds of $1,000 each, numbered from 261 to 280, due January 1, 1905; twenty bonds of $1,000 each, numbered from 281 to 300, and due January 1, 1906; twenty bonds of $1,000 each, numbered from 301 to 320, due January 1, 1907; twenty bonds of $1,000 NASHVILLE, CHATTANOOGA 0 inclusive, and due January 1, 1917. This January 1, 1887. TENNESSEE COAL, IRON & RAILROAD COMPANY, [SEAL.] By NATHANIEL BAXTER, JR., President. By G. W. McCoiiMACK, Secretary pro tempwe. The above deed was properly acknowledged and registered in the register's office of Franklin county, in book 12, p. 501-3; in Grundy county, in book H, p. 599; in Marion county, in book Q, p. 404. 286 ABSTRACT OF TITLE SHELBYVILLE BRANCH CHAPTER XXV. SHELBYVILLE BRANCH. How acquired by Nashville, Chattanooga & St. Louis Railway. What is known as the Shelbyville branch that is, the branch from Wartrace to Shelbyville was built by the Nash- ville, Chattanooga & St. Louis Railway under and pursuant to an act of the legislature of the State of Tennessee, 1849-50, ch. 266, sec. 3, passed January 19, 1850. The act referred to provided, among other things, that "the Shelbyville branch, and such other branches of the Nashville & Chattanooga road as may be made, shall have all the rights and privileges, and shall be placed in all respects on the same footing with the Nashville & Chattanooga road." The road was built about day of - , 18 . Width Of right Of Way. Inasmuch as the above act con- ferred upon this branch all the rights and privileges, and placed it in all respects upon the same footing with the Nashville & Chattanooga road, its width of right of way must now be de- termined by the provisions of sees. 24 and 25 of the charter of the Nashville, Chattanooga & St. Louis Railway, which give one hundred feet on either side of the center of the road, in the absence of any contract with the original landowner to the contrary. For charter of Nashville, Chattanooga & St. Louis Railway, see ch. 1, herein. For a general discussion of this and kindred subjects, together with the right and method of taking more than two hundred feet, when nec- essary, for railroad purposes, see Eminent Do/nmu, Riyld of Way, herein. Refer to index. N \-HVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 287 CHAPTER XXVI. TENNESSEE A COOS A RAILROAD COMPAXV. llKANc Il.| How acquired by Nashville, Chattanooga & St. Louis Rail- way. On April 6, 1891, the Tennessee & Coosa Railroad Company, in pursuance of the respective resolutions of its directors arid stockholders, passed in the city of Huntsville, Alabama, on the thirty-first day of March, 1891, sold its road, property, franchise*, etc., to the Nashville, Chattanooga & St. Louis Railway. The consideration paid was the cancellation of a debt of over four hundred thousand dollars, due by the said Tennessee & Coosa Railroad Company to the said Nashville, Chattanooga & St. Louis Railway; the further cancellation of one hundred and five thousand dollars of the first and only mortgage bonds of the Tennessee & Coosa Railroad Company, which bonds were held and owned by the Nashville, Chattanooga & St. Louis Railway; and the agreement on the part of the said Nashville, Chattanooga etween the base of the Lookout mountain and Ten Island Shoals, and shall be located with a view to the extension at some future day, to some point on the Alabama river. Termini changed; may extend road to Tennessee line, and to Gads- den, etc. Hy Acts Ala., 1872-3, p. 422, the above section was amended so as to read as follows: "Said railroad shall extend from some point at or near Gunter's landing, on the Tennessee river, to a point to be selected by said company, or their successors, on the boundary line between the states of Tennessee and Alabama, with a view to its further extension in a northern or northwestern direction, as said company may determine, and from said point at or near Gunter's landing, on said Tennessee river, to some point at or near the towns of Attalla or Gadsden, in Etowah county, thence by way of the cities of Talladega and Wetumpka to the city of Montgomery, on the Alabama river; Provided, That the provisions of this act shall in nowise impair or affect any contract or agreement heretofore made by the said Tennessee & Coosa Railroad Company with the East Alabama fe Cincinnati Railroad Company." See act itself, which contains same conditions, in next chapter. SEC. 4. Incorporation, name, general powers. And be it further enacted, That as soon as fifty thousand dollars shall have been subscribed to the capital stock of said company, the sub- scril>ers of said stock, their successors and assignees, shall lie, and they are hereby, declared to be incorporated into a com- pany by the name of the Tennessee & Coosa Railroad Company; and by that name shall be capable in law of purchasing, hold- ing, leasing, selling and conveying, real, personal, and mixed property, so far as shall be necessary for the purposes of this incorporation; and by said incorporated name may sue and be sued, plead and be impleaded, answer and be answered unto in any court of law or equity in this state or elsewhere; and to have and use a common seal, and the same to alter or amend at pleasure; to pass such by-laws, rules, and ordinances for the good government of said corporation as to them may seem proper; and generally to do all things to carry into effect fully and completely the objects of this act. SEC. 5. Election of directors and president, scale of voting, proxies. And be it further enacted, That as soon as fifty thou- sand dollars shall have been subscribed, the commissioners, hereby apjx)inted, shall call a general meeting of the subscribers at such time and place as they may appoint; and, at such meet- ing, the said subscribers, or a majority of them in value, shall 292 ORIGINAL CHARTER GADSDEN BRANCH elect nine directors, by ballot, to manage the affairs of said company; and the commissioners, as aforesaid, or any three or more of them, shall be judges of said first election of directors; and the directors thus chosen shall elect, among themselves, the president of said company, and allow him such compensation as they may think proper; and on all occasions wherein a vote of stockholders shall be necessary to be taken, each stockholder shall be allowed one vote for every share owned by him or her; and any stockholder may depute any other person to vote and act for him or her as his or her proxy. SEC. 6. Annual elections; powers of and removal of di- rectors I Vacancies, hOW filled.^ it further enacted, That the president and directors of said company shall be chosen annually by the stockholders of said company; and if any va- cancy shall occur by death, resignation, or otherwise, of any president or director before the year for which they were elected shall have expired, such vacancy shall be filled by the president and directors, or a majority of them; and that the president and directors shall hold their office until their suc- cessors are chosen and qualified, shall have power to call meet- ings of stockholders at any time, and a majority of the stock- holders shall have power to remove the president or any di- rector, and to fill all vacancies occasioned by removal, at pleasure. Time of holding 1 election of directors changed. By Acts of Ala., 1866-7, p. 163, No. 183, this section was amended so as to change the time of holding 1 the election of president and directors from the twenty- second of November to the first Monday in January, and, in addition, legalized all acts done by directors from November 22, 1866, to the first Monday in January, 1867. SEC. 7. Powers of directors, mortgages.^ it further enacted, That said president and directors, or a majority of them, may appoint all such officers, engineers, agents, or ser- vants, whatsoever, as they may deem necessary to carry on the business of said company, and may dismiss them at pleasure; a majority of them shall determine the compensation of all officers, engineers, and servants of said company; shall have power to pass all by-laws which they may deem necessary and proper for exercising all the powers vested in this company for NASHVILLE, CHATTANOOGA ., 426; 88 lb., 383; 64 Ib., 108. See, also, first part of this chapter. SEC. 11. Oath Of jury. And be it fnrtfter enacted, That the jurors trying such case shall take the following oath, which oath the sheriff is hereby authorized to administer: "You, and each of you, do swear (or affirm, as the case may be\ that you will well and truly try the case now pending and submitted to your decision, between A B, complainants, and the president and directors of the Tennessee & Coosa Railroad Company, 296 ORIGINAL CHARTER GADSDEN BRANCH defendants; and that you will take into consideration the ad- vantages and value which the construction of the railroad may give to lands or other property, as well as the injury said lands or other property may sustain by its construction through, or near which it may be constructed: So help you God." SEC. 12. Title to land acquired, work not to be delayed. And be it further enacted, That the said lands or other prop- erty, when so condemned and estimated as aforesaid, shall inure to, and become the property of said company forever, upon the payment, by said company, of the amount assessed by said jury to th^party claiming damages on account of the construction of said road through said land, or for such other property; And provided further, That said work shall in no- wise be delayed on account of proceedings had as aforesaid. SEC. 13. Injury tO road, penalty. And be it further enacted, That in case any person shall willfully injure or obstruct, in any degree, the said road or roads, he shall forfeit and pay to the president and directors of said company three times the amount of all damages they may sustain in consequence thereof; to be sued for and recovered in the same manner as provided by law for individuals in like cases. And on complaint made to any magistrate within whose jurisdiction such offense shall be committed, it shall be the duty of such magistrate to bind the person or persons so offending, with sufficient security, for his or their good behavior for a period of not less than one year; and such offender shall also be subjected to indictment, and shall be sentenced, at the discretion of the court, to be imprisoned not less than three nor more than six months. SEC. 14. Public roadS not tO be Obstructed. An d be it fur- ther enacted, That in the construction of said railroad the pres- ident and directors of said company shall not, in any way or manner, obstruct any public road now established; but shall provide convenient passages to travel over said road. SEC. 15. Subscriptions may be paid in what. And be it fur- ther enacted, That payments of the subscription to the stock in said railroad may be made in the materials, labor, provisions, and all and everything necessary for the construction of said NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 297 road, which the board of directors, at their discretion, may deem it expedient to accept. SEC. 16. Tolls; net profits not to exceed what. Ami be it further enacted, That after the completion of said road, or any part thereof, the said president and directors may lay and col- lect tolls from all persons, property, merchandise, and other commodity transported thereon; Provided, The net profits of said road shall never exceed twenty-five per cent, per annum. By Acts Ala., 1869-70, p. 290, No. 245. sec. 2, approved March 2, 1870, the company was required to transport passengers at a rate not to exceed four cents per mile, and local freight at a rate not to exceed 25 per cent, higher than is charged for through freight. See act itself in next chapter. SEC. 17. Other roads may CrOSS this. And le it farther enacted, That the general assembly reserve the right and power to authorize the construction of any railroad to cross the one authorized by this act, at any point the general assembly may think proper. By Acts Ala.. 1857-8, No. 152. p. 162, sec. 2, the Winchester & Alabama Railroad was allowed to connect with this railroad at or near some con- venient point near the Davidson Hollow, but this was never done, as the said road was never extended into Alabama. SEC. is. Banking and issuing circulating paper prohibited. And be it further enacted, That nothing in this act shall l>e so construed as to confer upon said company any right to exercise the power of a banking company or to issue any description of paper or evidences of debt intended as circulation. (Acts Ala., 1844-5, No. 220, p. 170; approved January 16, 1844.) 298 DEED AND ACTS RELATING TO GADSDEN BRANCH CHAPTER XXVII. DEED TO AND ACTS RELATING TO TENNESSEE & COOSA RAILROAD. DEED. This indenture witnesseth that, whereas, on the thirty-first of March, 1891, the following contract of conveyance between the Tennessee & Coosa Railroad, party of the first part, and the Nashville, Chattanooga & St. Louis Railway, party of the second part, was made, to wit: This indenture, made and entered into on this, the thirty- first day of March, 1891, by and between the Tennessee & Coosa Railroad Compan} 7 , a corporation organized and existing under the laws of the State of Alabama, part} T of the first part, and the Nashville, Chattanooga & St. Louis Railway, a corpo- ration organized and existing under the laws of the State of Tennessee, party of the second party, witnesseth that, WHEREAS, Said party of the first part is justly indebted to the party of the second part in a large sum of money, exceed- ing the sum of four hundred thousand dollars, for money by said party of the second part paid, laid out, and expended by said party of the second part in satisfaction of debts and liabili- ties of said party of the first part, and in the construction and equipment of the line of road of the said party of the first part from the city of Gadsden, in the county of Etowah, to a point on the located line of said road near the city of Guntersville, in the county of Marshall, in the State of Alabama; and, WHEREAS, Said party of the second part is the owner of one hundred and five (105) of the first and only mortgage bonds of this company, each for the payment of one thousand dollars, which bonds, with the semiannual interest thereon for the years 1888, 1889, and 1890 are unpaid; and, NASHVILLE, CHATTANOOGA 4 8T. LOUIS RAILWAY. 299 WHEREAS, At a meeting of the board of directors of the said party of the first part, convened in the city of Huntsv'ille, in the State of Alabama, on the thirty-first day of March, 1891, of which meeting each director had due and legal notice, a pre- amble and resolutions, in the words following, were adopted by said board of directors: " WHEREAS, This company is justly indebted to the Nashville, Chattanooga and St. Louis Railway in a sum exceeding four hundred thousand dollars, which sum has been expended in the construction and equipment of the line of road of this company from the city of Gadsden, in the county of Etowah, to a point near the city of Guntersville, in the county of Marshall, in the State of Alabama, and in the payment of debts and liabilities of this company; and, "WHEREAS, Said Nashville, Chattanooga & St. Louis Kail- way was induced to aid this company by the expenditure and ad- vance of said sum of money with a view and for the purpose of connecting a line of road of this company to and with the line of road of said Nashville, Chattanooga & St. Louis Railway north of the Tennessee river, at some point on such line either in the county of Madison or in the county of Jackson in this state, so that a continuous line of railroad would be constructed and operated to and from said city of Gadsden to such point on the lines of railroad of said Nashville, Chattanooga & St. Louis Railway north of the Tennessee river as may be selected, and thence to Chattanooga and Nashville in the State of Tennessee; and, " WHEREAS, Said Nashville, Chattanooga & St. Louis Railway is the holder and owner of one hundred and five (105) of the first and only mortgage bonds of this company, each for the payment of one thousand dollars, and which, with the semian- nual interest thereon for the years 1888, 1889, and 1890, are unpaid; and, " WHEREAS, This company has not the ability to pay the said debt and to continue the construction of its said line of road from the city of Gadsden to a point at or near Gunter's land- ing on the Tennessee river, and thence across said river, con- 300 DEED AND ACTS RELATING TO GADSDEN BRANCH necting with other lines of railroad, without the borrowing of money and contracting a large indebtedness, which is not be- lieved to be to the interest of the stockholders; therefore, " 1. Be it rexolved, That it is expedient to the interest of this company and to the best interest of the stockholders, to make sale to said Nashville, Chattanooga & St. Louis Railway of all the property, rights of property, real and personal, and of all the rights, privileges, and franchises of this company, in payment of the said indebtedness of this company, the said Nashville, Chattanooga & St. Louis Railway stipulating and covenanting to assume and discharge any and all other. debts and liabilities of this company, and to pay each shareholder of the company the par value of his stock; and further stipulating to continue and to complete the construction of the line of road of this company, now in the course of construction, to a point at or near Gunter's landing on the Tennessee river, and thence across said river to a point on its line of railroad aforesaid; "2. Be it farther resolved, That the foregoing preamble and resolution shall be submitted to a meeting of the stockholders of this company, called for the purpose of considering the same, of which meeting due and legal notice shall be given said stock- holders; and, if the said preamble and resolution be approved by a majority of said stockholders, and the stockholders of said Nashville, Chattanooga & St. Louis Railway, and the board of directors thereof shall assent to make the purchase on. the terms and conditions expressed in said resolution, the board of di- rectors of this company are authorized and empowered to cause all necessary and proper conveyances to said Nashville, Chat- tanooga & St. Louis Railway to be made and executed by this company; " and, WHEREAS, Subsequently said preamble and resolutions were submitted to a meeting of the stockholders of said party of the first part, convened in the city of Huntsville aforesaid, on the thirty-first day of March, 1891, for the purpose of considering the same, of which meeting, and the purpose for which it was called, due and legal notice was given to each and every stock- holder, saving and excepting W. C. Waddle, A. M. Davenport, NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 301 and H. W. Pickens, who own, in the aggregate, twelve shares, and whose residence were, and are, unknown; and, WHEREAS, After considering said resolutions, said stock- holders, at said meeting, adopted a resolution approving the said preamble and resolutions, and instructing the board of directors of the party of the first part to make the said sale and all the necessary and proper conveyances to carry the same into effect; and, WHEREAS, The said stockholders and the board of directors of the said party of the second party have considered the said preamble and resolutions, and have approved the same, and assented to the said sale on the terms and conditions in said preamble and resolutions expressed: Now this indenture further witnesseth: That for and in con- sideration of the stipulations and covenants of said party of the second part hereinafter expressed, and for and in consideration of the satisfaction of the debts and liabilities of said part}' of the first part to said party of the second part hereinbefore mentioned, said party of the first part hath given, granted, bargained and sold, and conveyed, and by these presents doth give, grant, bargain, sell, and convey unto said party of the second part, its successors and assigns, forever, all the line of said road of said party of the first part now constructed, ex- tending from said city of Gadsden, in all about thirty miles in length; and also the right or rights of way therefor, roadbed, superstructure, and all lands and depot grounds, station houses, depots, tools, materials, equipments, and rolling stock, and all other property, real or personal, appertaining to said road and the use thereof, now owned or jx>ssessed by said party of the first part, and also including any and all other property, real or j)ersonal, and all rights of property now had or Franchlses possessed by said party of the first part, and all pass< the rights, privileges, and franchises which are held and pos- sessed by said party of the first part. To have and to hold the above mentioned and hereby granted property and rights of property, rights, privileges, and fran- chises, unto the said party of the second part, its successors and 302 DEED AND ACTS RELATING TO GADSDEN BRANCH assigns, forever; and said party of the second part, for itself, its successors and assigns, doth hereby stipulate and covenant to and with said party of the h'rst part for and in consideration of the premises, that it will pay and satisfy all debts and lia- bilities now existing against said party of the first part; and, further, that it, the said party of the second part, its successors and assigns, wiH pay to each stockholder of the said party of the first part the par value of his stock on the surrender and cancellation of his certificate or certificates of stock. And, further, that it, said party of the second part, its suc- cessors and assigns, will continue and complete the construc- tion of the line of railroad hereby granted and conveyed to a point at or near Gunter's landing on the Tennessee river, and thence across said river to some point on its said line of rail- road north of said river, so as to form the continuous line of road in the said preamble and resolution contemplated and in- tended. In witness whereof, the parties hereto have caused these pres- ents to be signed by their respective presidents and their corpo- rate seals to be hereto affixed and attested by their respective secretaries the day and year above written. THE TENNESSEE & COOSA RAILROAD COMPANY, By J. W. THOMAS, President. The Tennessee & Coosa Railroad Company has no seal. Attest: J. H. AMBROSE, Secretary. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, [SEAL.] By J. W. THOMAS, President. Attest: J. H. AMBROSE, Secretary. AND, WHEREAS, Upon submission of this contract of con- veyance to the directors of the Nashville, Chattanooga & St. Louis Railway, at a meeting held at the office of said railway on the fourth day of April, 1891, the following resolution was adopted : "\VHEREAS, Upon submission to the board of directors of the Nashville, Chattanooga & St. Louis Railway of the deed and contract of conveyance of the Tennessee & Coosa Railroad NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 303 Company of its properties, franchises, etc., it was discovered that by oversight the following clauses were inserted in the conveyance: 'The said Nashville, Chattanooga & St. Louis Railway stipulating and covenanting to assume and discharge any and all other debts and liabilities of this company, and to pay each shareholder of the company the par value of his stock, and for and in consideration of the satisfaction of the debts and liabilities of said party of the first part to said party of the second part, hereinbefore mentioned; and said party of the second part, for itself, its successors and assigns, doth hereby stipulate and covenant to and with said party of the first part, for and in consideration of the premises, that it will pay and satisfy all the debts and liabilities now existing against said party of the first part;' and, " WHEREAS, This formed no part of the consideration passing between this company and the Tennessee & Coosa Rail- road Company, " Be it resolved by the Board of Directors of the Na*hville, Chattanooga & St. Louis Railway, That said deed and contract of conveyance be, and it is hereby, approved and accepted, with the exception of said above mentioned clauses, and the president of this company is directed to execute with the Ten- nessee & Coosa Railroad Company an agreement by which said deed and contract of conveyance shall be so amended as to eliminate said clauses;'' and, WHEREAS, At a meeting of the board of directors of the Tennessee & Coosa Railroad Company, held at Huntsville, Ala., on the sixth day of April, 1891, the said contract of conveyance having been submitted to said board, the following resolutions were adopted: " WHEREAS, Tpon submission to the board of directors of the Tennessee & Coosa Railroad Company of the deed and contract of conveyance of the Tennessee & Coosa Railroad Company of its projHjrties, franchises, etc., to the Nashville, Chattanooga & St. Louis Railway, it was discovered that by oversight the following clauses were inserted in the conveyance: k The said Nashville, Chattanooga & St. Louis Railway stipulat- 304 DEED AND ACTS RELATING TO GADSDEN BRANCH ing and covenanting to assume and discharge any and all other debts and liabilities of this company, and to pay each share- holder of the company the par value of his stock, and for and in consideration of the satisfaction of the debts and liabilities of said party of the first part to said party of the second part here- inbefore mentioned; and said party of the second part, for itself, its successors and assigns, doth hereby stipulate and cove- nant to and with said party of the first part, for and in consid- eration of the premises, that it will pay and satisfy all the debts and liabilities now existing against said party of the first part; ? and, ' ' WHEREAS, This formed no part of the consideration passing between this company and the Nashville, Chattanooga & St. Louis Railway: "Be it resolved by the Board of Directors of the Tennessee & Coosa Railroad Company, That said deed and contract of con- veyance be, and it is hereby, approved and accepted, with the exception of said above mentioned clauses, and the president of this company is directed to execute with the Nashville, Chatta- nooga & St. Louis Railway an agreement, by which said deed and contract of conveyance shall be so amended as to eliminate said clauses." Now, THEREFORE, In accordance with the resolution of said boards, and with the original understanding, contract, and agree- ment between the two companies, it is agreed by the parties hereto that said deed and contract of conveyance or indenture, executed on the thirty-first day of March, 1891, be, and the same is hereby, amended so as to read as follows: This indenture, made and entered into this, the thirty-first day of March, eighteen hundred and ninety-one (1891), by and between the Tennessee & Coosa Railroad Company, a corpora- tion organized and existing under the laws of the State of Ala- bama, party of the first part, and the Nashville, Chattanooga & St. Louis Railway, a corporation organized and existing un- der the laws of the State of Tennessee, party of the second part, witnesseth; that WHEREAS, Said party of the first part is justly indebted to NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 305 said party of the second part in a large sum of money, exceed- ing the sum of four hundred thousand dollars, for money by said party of the second part paid, laid out, and ex{>ended by said party of the second part in satisfaction of debts and liabil- ities of the said party of the h'rst part, and in the construction and equipment of the line of railroad of said party of the first parUfrom the city of Gadsden, in the county of Etowah, to a point on the located line of said railroad near the city of Gun- tersville, in the county of Marshall, in the State of Alabama; and, WHEREAS, Said party of the second part is the owner and holder of one hundred and five of the first and only mortgage bonds of this company, each for the payment of one thousand dollars, which bonds, with the semiannual interest thereon, for the years 1888, 1889, and 1890, are unpaid; and, WHEREAS, At a meeting of the board of directors of the said party of the first part, convened in the city of Huntsville, in the State of Alabama, on the thirty-first day of March, 1891, of which meeting each director had due and legal notice, a pre- amble and resolution, in words following, were adopted by said board of directors; WHEREAS, This company is justly indebted to the Nashville, Chattanooga & St. Louis Railway, in a sum exceeding four hun- dred thousand dollars, which sum has been expended in the construction and equipment of the line of road of this company, from the city of Gadsden, in the county of Ktowah, to a point near the city of Guntersville, in the county of Marshall, in the State of Alabama, and in the payment of debts and liabilities of this company; and, WHEREAS, Said Nashville, Chattanooga & St. Louis Railway was induced to aid this company, by the expenditure and ad- vance of said sum of money, with the view and for the purpose of connecting the line of railroad of this company to and with the line of railroad of said Nashville, Chattanooga & St. Louis Railway, north of the Tennessee river, at some point on such line, either in the county of Madison or in the county of Jack- son, in this state, so that a continuous line of railroad will be 20 306 DEED AND ACTS RELATING TO GADSDEN BRANCH constructed and operated to and from said city of Gadsden, to such point of the line of railroad of said Nashville, Chattanooga & St. Louis Railway, north of the Tennessee river, as may be selected, and thence to Chattanooga and Nashville, in the state of Tennessee; and, WHEREAS, Said Nashville, Chattanooga & St. Louis Railway is the holder and owner of one hundred and five of the first and only mortgage bonds of this company, each for the payment of one thousand dollars, and which, with the semiannual interest thereon for the years 1888, 1889, and 1890, are unpaid; and, WHEREAS, This company has not the ability to pay the said debts and to continue the construction of its said line of road from the city of Gadsden to a point at or near Gunter's land- ing, on the Tennessee river, and thence across said river, con- necting with other lines of railroad, without the borrowing of money and contracting a large indebtedness, which is not be- lieved to be to the interest of the stockholders of this com- pany; therefore, 1. Be it resolved, That it is expedient for this company, and to the best interest of the stockholders, to make sale to said Nashville, Chattanooga & St. Louis Railway of all the prop- erty, rights of property, real and personal, and of all the rights, privileges, and franchises of this company in payment of the said indebtedness of this company, the said Nashville, Chattanooga & St. Louis Railway stipulating and covenanting to complete the construction of the line of road of the com- pany now in the course of construction to a point at or near Guntersville landing, on the Tennessee river, and thence across said river to a point on its lines of railroad aforesaid. 2. Be it farther resolved, That the foregoing preamble and resolution shall be submitted to a meeting of the stockholders of this company called for the purpose of considering the same, of which meeting due and legal notice shall be given said stock- holders. And if said preamble and resolution be approved by a majority of said stockholders and the stockholders of said Nashville, Chattanooga & St. Louis Railway and if the board of directors thereof shall assent to make the said purchase on NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 307 the terms and conditions expressed in said resolutions, the board of directors of this company are authorized and em- powered to cause all necessary and proper conveyances to said Nashville, Chattanooga & St. Louis Railway to be made and executed by this company. And, WHEREAS, As subsequently said preamble and resolutions were submitted to a meeting of the stockholders of said party of the first part, convened in the city of Hunts ville aforesaid, on the thirty-first day of March, 1891, for the purpose for which it was called. Due and legal notice was given to each and every stockholder, saving and excepting W. C. Waddle, A. M. Dav- enport, and H. W. Pickens, who own, in the aggregate, twelve shares, and whose residences were and are unknown; and, WHEREAS, After considering said resolution, the said stock- holders, at said meeting, adopted a resolution approving the said preamble and resolutions, and instructing the board of directors of the party of the first part to make the said sale, and all the necessary and proper conveyances to carry the same into effect; and, WHEREAS, The stockholders and the board of directors of the said party of the second part have considered the said pre- amble and resolutions, and have approved the same, and assented to the sale on the terms and conditions in said preamble and resolutions expressed: Now, THIS INDENTURE FURTHER WITNESSETH, That for and in consideration of the stipulations and covenants of the said party of the second part hereinafter expressed, said party of the first part hath given, granted, bargained, sold, and conveyed, and by these presents doth give, grant, bargain, sell, and convey, unto said party of the second part, its successors and assigns, forever, all the line of railroad of said party of the first part now constructed, extending from said city-of Gadsden, in all about thirty miles in length; and also the right or rights of way therefor, roadbed, superstructure, and all lands, depot grounds, station houses, depots, tools, materials, equipments, and rolling stock, and all other property, real or personal, ap- pertaining to said road, and to the use thereof, now owned or 308 DEED AND ACTS RELATING TO GADSDEN BRANCH possessed by said party of the first part; and also including Franchises an ^ anc ^ a ^ otner property, real or personal, and pass. a u r ights of property now had or possessed by said party of the first part, and all the rights, privileges, and franchises which are held and possessed by said party of the first part. To have and to hold the above mentioned and hereby granted property and rights of property, rights, privileges, and fran- chises, unto the said party of the second part, its successors and assigns, forever; AND, FURTHER, That it, said party of the second part, its successors and assigns, will pay to each stockholder of the said party of the first part the par value of his stock, on the sur- render and cancellation of his certificate or certificates of stock. AND, FURTHER, That it, said party of the second part, its suc- cessors and assigns, will continue and complete the construc- tion of the line of railroad hereby granted and conveyed, to a point at or near Gunter's landing, on the Tennessee river, and thence across said river to some point on its line of railroad north of said river, so as to form a continuous line of road in the said preamble and resolutions contemplated and intended. IN WITNESS WHEREOF, That parties hereto above caused these presents to be signed by their respective presidents, and their corporate seals to be hereto affixed, and attested by their respective secretaries, this, the sixth day of April, 1891. THE TENNESSEE & COOSA RAILROAD Co., By J. W. THOMAS, President. Attest: J. H. AMBROSE, Secretary. The Tennessee & Coosa Railroad Compam r has no seal. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, [SEAL.] By J. W. THOMAS, President. J. H. AMBROSE-, Secretary. STATE OF TENNESSEE, | Davidson County. f On this, the sixth day of April, A.D. 1891, before me J. T. Spalding, a notary public, duly author- ized to act in and for the above named county, come the Ten- nessee & Coosa Railroad Company, by its president, J. W. NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 309 Thomas, and its secretary, J. H. Ambrose; and the Nashville, Chattanooga & St. Louis Railway, by its president, J. W. Thomas, and its secretary, J. H. Ambrose, to me |>ersonally known to be the identical jxjrsons whose names are affixed to the foregoing instrument, and acknowledged the execution of said instrument to be their voluntary act and deed as such pres- ident and secretary, and for and as the voluntary act and deed of the said Tennessee & Coosa Railroad Company and the said Nashville, Chattanooga < St. Louis Railway; and being by me duly sworn, they say that they reside in Nashville, Tenn., and that J. W. Thomas is president and J. II. Ambrose is secretary of the Tennessee & Coosa Railroad Company, also, that J. W. Thomas is president and J. II. Ambrose is secretary of the Nashville, Chattanooga & St. I^ouis Railway, and that they ex- ecuted the said instrument by order of the boards of directors of said companies. IN WITNESS WHEREOF, I have hereunto set my hand and of- ficial seal, at Nashville, Tenn., the day and year first above written. [SEAL.] J. T. SPALDIXG, Xotary Public. The above deed was registered in the office of judge of probate court, of Marshall county, in book S, p. 277; in Etowah county, in book 31, p. 3GG. ACTS ALABAMA RELATING TO TENNESSEE & COOSA RAILROAD COMPANY. 1. Termini of Tennessee & Coosa Railroad changed. SECTION 1. Be it enacted by the General Axx< inbly of Ala- bainsi, That the third section of an act entitled "An act to in- corporate the Tennessee & Coosa Railroad Company," ap- proved January 1(>, 1844, which is in the following words, to wit: "Sec. 3. And be it further enacted, That said railroad shall extend from some point at or near (iimter's landing, on the Tennessee river, to the most eligible point on the Coosa river, between the base of Lookout Mountain and the Ten Island Shoals, and shall be located with a view to the extension at some future day to some point on the Alabama river," be, and the same is hereby, amended so as to read as follows: "That said railroad shall extend from some point at or near 310 DEED AND ACTS RELATING TO GADSDEN BRANCH Gunter's landing, on the Tennessee river, to a point to be se- lected by said company or their successors, on the boundary line between the states of Tennessee and Alabama, with a view to its further extension in a northern or northwestern direction, as said company may determine, and from said point at or near Gunter's landing, on said Tennessee river, to some point at or near the towns of Attalla or Gadsden, in Etowah county, thence, by way of the cities of Talladega and Wetumpka, to the city of Montgomery, on the Alabama river; Provided, That the pro- visions of this act shall in nowise impair or affect any contract or agreement heretofore made by the said Tennessee & Coosa Railroad Company with the East Alabama & Cincinnati Rail- road Company. SEC. 2. Be it further enacted, That said sec. 3 of said act, NO diversion as amen( led, shall not be so construed as to divert, of rights, etc. m anv wav wna t ever? anv rights, powers, priv- ileges, or purchases now possessed or owned under and by virtue of any law or laws of this state. SEC. 3. Be it further enacted, That the true intent and meaning of this act is to authorize and empower said company True intents ^ cons truct a railway from Gunter's landing, on and meaning. ^ ae Tennessee river, to the boundary line of the states of Tennessee and Alabama, with a view to its further extension in a northern or northwestern direction, as may be determined by said company, and from said Gunter's landing, on said river, to some point at or near the towns of Attalla or Gadsden, in Etowah county, thence by way of the cities of Talladega and Wetumpka to the city of Montgomery, on the Alabama river; Provided, That said Tennessee & Coosa Railroad Company be, and are hereby, re- quired to give the same accommodations to all persons paying the same fare, without regard to race, color, or previous con- dition of servitude, and that said Tennessee & Coosa Railroad Company shall not refuse to sell first-class tickets to any person or persons applying for the same on account of race or color. (Acts Ala., 1872-3, p. 422; approved April 22, 1873.) NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 311 2. Tennessee & Coosa Railroad Company released from indebt- edness to State of Alabama. WHEREAS, The legislature of Alabama has heretofore ap- propriated, loaned, and advanced to the Tennessee & Coosa Railroad Company, portions of the two and three per cent, fund, which have been applied to the construction of said road, by means of which, and of moneys derived from subscriptions of stock, the said road was graded, in 1861; and, whereas, by reason of the war the work on said road was suspended, the company impoverished, and the sureties on the second bonds given to the state are unable to meet their liabilities; and, whereas, assurances are given that said railroad, which is deemed of great importance to the people of Alabama, can be finished in a reasonable time, if the state of Alabama re- mits its claims upon said company; therefore, SECTION 1. Be it enacted by the General Assembly of Alabama, That the Tennessee & Coosa Railroad Company be, and they are hereby, released and discharged from all obliga- Re)ease of tions, bonds, claims, and demands due from said clalms company to the state of Alabama, by reason of any appropria- tions to said road of the two and three per cent, funds, or any part thereof, and the said portions of said funds heretofore appropriated to said road are hereby donated to the same; Provided, The said railroad shall l>e completed in Proviso two years from the date of the approval of this act; Provided, That nothing in this act contained shall be so con- strued or held as to make the state of Alabama responsible or bound to any other company for the portions of the said two and three per cent, funds hereby released and granted to said Tennessee & Coosa Railroad Company; and the state hereby quitclaims and releases to said Tennessee & Coosa sute Jt Railroad Company all its right and title to said two clalms - and three per cent, funds heretofore appropriated to said rail- road company; Provided further, That the said company shall receive no further aid from the state of Alabama, by the indorse- ment of its bonds or otherwise. SEC. 2. Be it further enacted, That as a condition on which 312 DEED AND ACTS RELATING TO GADSDEN BRANCH the said railroad is released from the payment of the two and three per cent, fund to the state, the said railroad company Conditions sna ^ transport passengers at a rate not to exceed four cents per mile, and all local freights at a rate not to exceed twenty-five per cent, higher than is charged for through freight. (Acts Alabama, 1869-70, p. 290, No. 245; approved March 2, 1870.) 3. Charter amended, directors to make semiannual report to governor. SECTION 1. Be it enacted by the Senate and House of Repre- sentatives of the State of Alabama, in General Assembly con- vened, That the president and directors of the Tennessee & Coosa Railroad Company be, and they are hereby, required to make a report on the fifteenth clay of December, 1857, and every six months thereafter, to the gov- ernor of the State of Alabama, which said report shall show the manner in which they have used the money received by them under the provisions of an act entitled "An act to appro- priate the unappropriated part of the two per cent, fund, and a portion of the three per cent, fund," approved February 4, 1850, by the provisions of which they were authorized to re- ceive, upon conditions, certain amounts of the two and three per cent, funds; said report shall exhibit the amount of said two and three per cent, funds now on hand, what amount is loaned out, and in what way and upon what security, and when the same is payable, and also what amount of said funds have been paid out and finally disposed of by them, and for what purposes. SEC. 2. Be it further enacted, That the said president of the said railroad company shall, before submitting the said re- port provided for in the preceding section of this act, make affidavit of the correctness thereof be- fore some officer of this state authorized by law to administer oaths. SEC. 3. Be it further enacted, That if the said president President an( ^ ( li rec tors of said Tennessee & Coosa Railroad and directors. Company, and their successors in office, shall fail NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 313 or neglect to comply with the provisions of this act, then so many of them as assent to or sanction such failure or neglect shall be deemed guilty of a misdemeanor, and upon conviction thereof upon indictment shall be punished by fine and impris- onment, one or both, at the discretion of the jury trying the same; and shall, moreover, be person- ally liable in their private property to the state for the amount of said two and three per cent, funds which may be by them misapplied or squandered. SEC. 4. Be it further enacted, That upon the passage and approval of this act it shall be the dutv of the Clerk, clerk of the house of representatives forthwith to send a certified copy of it to the said president and directors of the said Tennessee & Coosa Railroad Company. (Acts Ala., 1857-8, p. 310, No. 295; approved November 30, 1857.) 4. Charter amended ; suits for subscription ; witnesses. SECTION 1. Be It enacted by the. Senate and Houxe of Rep- resentatives of the State of Alabama hi General Assembly convened, That an act entitled "An act to incorporate the Tennessee & Coosa Railroad Company," approved January 16, 1854:, be, and the same is hereby, so amended that the said company shall be, and hereby are, au- thorized to bring suits for installments due upon subscriptions for stock in said company, before any justice of the peace, when the amount due at the time the suit is brought is less than fifty dollars. SEC. 2. Be It further enacted, That in all suits brought by said company against delinquent stockholders, no one shall be excluded from being a witness on the trial of the same by reason of being a stockholder in said company. (Acts Ala., 1855-56, p. 322, No. 316; approved January 16, 1856.) 5. Charter amended; time of holding elections changed. SECTION 1. Be it enacted by the Senate and Hoime of Rep- resentatives of the State of Alatxima In General Assembly convened, That the time of holding the annual election of presi- dent and board of directors of the Tennessee & Coosa Railroad 314 DEED AND ACTS RELATING TO GADSDEN BRANCH Company be changed from the twenty-second of November to the first Monday in January, and that all acts done by the present board from the twenty-second of November, 1866, to the first Monday in January, 18o7, be, and the same are hereby, legalized and made firm and binding, any existing law to the contrary notwithstanding. (Acts Ala., 1866-67, p. 163; ap- proved December 7, 1866, No. 183.) 6. Act construing Acts Alabama, approved February 19, 1889, releasing Tennessee & Coosa Railroad Company from indebtedness to state. Be it enacted by the General Assembly of Alabama, That, WHEREAS, When the act entitled "An act to amend an act enti- tled an act to release the Tennessee & Coosa Railroad Company from its indebtedness to the State of Alabama ' ' was passed and approved, the extension of the line of said railroad north of the Tennessee river had been located to run to the city of Huntsville, in Madison county, in this state, and the construc- tion of said road, as thus located, had been let and contracted to be built, and some six miles thereof graded from said city of Huntsville; and, WHEREAS, One of the chief inducements to the release of the indebtedness due the State of Alabama from said railroad company provided by said act was said extension to said city of Huntsville, thereby giving railroad communication with said city to the citizens of other portions of the state; and, WHEREAS, It appears that it is contemplated by said railroad company, and those in charge thereof, to abandon said line and located route to said city of Huntsville, and substitute therefor another and different route; now, therefore, It is hereby declared to be the true intent and meaning of said act of February 19, 1889, and said act is amended to read as follows: SECTION 1. Be it enacted by the General Assembly of Ala- bama, That the Tennessee & Coosa Railroad Company be, and they are hereby, discharged from all obligations, bonds, claims, and demands due from said company to the State of Alabama, by reason of any appropriation to said road of the two and NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 315 three per cent, funds, or any part thereof, and the said {>or- tions of the said funds heretofore appropriated to said road, are hereby donated to the same; Provided, The said railroad, as now located from the city of Gadsden, on the B * release con- Coosa river, to the city of Guntersville, on the dm nal - Tennessee river, and thence to the city of Huntsville, in Mad- ison county, in this state, shall be completed in 4ive years from the date of approval of said amendment, February 19, 1881; Provided, That nothing in this act contained shall be so con- strued or held as to make the State of Alabama responsible or hound to any other company for the jx)rtions of the said two and three per cent, funds hereby released and granted to said Tennessee & Coosa Railroad Company, and the state hereby quitclaims and releases to said Tennessee & Coosa Railroad Company all its rights and title to said two and three per cent, funds heretofore appropriated to said railroad company; Pro- vided further* That the said company shall receive no further aid from the State of Alabama by the indorsement of its bonds or otherwise. SEC. 2. Be it furtlwr enacted, That all laws and parts of laws in conflict with this act be, and the same are hereby, re- pealed. (Acts Ala., 1890-91, p. 399.) 1. The above act, not having been approved or returned by the gov- ernor, became a law under sec. 13, art V., of the constitution. 2. The above act is doubtless unconstitutional, as against the vested rights of the company. Again, it is not the province of the legislature to expound the meaning of previously existing laws. They can say what the law xhull be, but not what it Is. 2 Hum. (Tenn.), 304; 1 Hax. (Tenn.), 319. Nashville, Chattanooga & St. Louis Railway allowed to build road or branch through counties of Madison, Marshall and Etowah to Attalla or Gadsden, Alabama, with rights, privileges, etc., of Tennessee charter. SECTION 1. Be it enacted by the General Asxembly of Alabama, That the Nashville, Chattanooga & St. Louis Railway, a corpo- ration chartered under the laws of the State of Tennessee, l>e, and the same is hereby, authorized and empowered to construct, operate, and maintain its road, or a branch thereof, in and through the counties of Madison, Marshall, and Etowah, in the 316 DEED AND ACTS RELATING TO GADSDEN BRANCH State of Alabama, beginning at Huntsville, in Madison county, and extending thence through the counties of Madison, Mar- shall, and Etovvah, to Attalla or Gadsden, in said Etowah county. SEC. 2. Be it further enacted, That the said Nashville, Chat- tanooga & St. Louis Railway shall have and enjoy all the rights, privileges, and immunities not in conflict with the con- stitution of the State of Alabama, and be subject to such re- strictions as are granted to and imposed upon said Nashville, Chattanooga & St. Louis Railway by the act or acts chartering the same, so far as said railway lies in the counties of Madison, Marshall, and Etowah, or may hereafter be constructed therein. (Acts Ala., 1890-91, p. 154; approved December 10, 1890.) 7. State aid to Tennessee & Coosa Railroad Company. The following acts of Alabama relating to the Tennessee & Coosa Railroad will so seldom be required that it is deemed unnecessary to set them out in full, but simply to give the book and page where they can be found: 1. Acts Alabama, 1844, p. 39, which loaned the two per cent, fund to the Tennessee & Coosa Railroad Company. 2. Acts of Alabama, 1853-54, p. 280, which also loans a part of the two and three per cent, funds to the Tennessee & Coosa Railroad Company, upon certain conditions relating to work upon and completion of the road. (See, also, 36 Ala., 371.) This act was amended by Acts 1855-56, p. 240, passed Decem- ber 19, 1855, so as to amend section five of this act. (See 36 Ala., 371.) 3. Acts Alabama, passed February 24, 1860, the fifth section of which construes the first section of the act ordering the loan to the Tennessee & Coosa Railroad. (See 36 Ala., 371.) 4. Acts of Alabama, 1861, p. 80 (extra session), which post- pones the loan of the State of Alabama to the Tennessee & Coosa Railroad. 5. Acts of Alabama, 1869-70, p. 290, No. 245, which releases Tennessee & Coosa Railroad Company from its indebtedness to the state of Alabama. This act, however, is set out above. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 317 6. Acts of Alabama, 1875-76, p. 154, which made it the duty of the governor to transmit to all railroads a list of the lands as certified to the state by the commissioners of the gen- eral land office and approved by the secretary of the interior, and to indorse his approval thereon, and this to oj>erate as a conveyance on the part of the state of all its title to said lands. 7. Acts of Alabama, 1882-83, p. 62, relates to the state lands claimed by the Tennessee & Coosa Road. 8. Acts of Alabama, 1888-89, p. 479, which amends the first section of the Acts of 1869-70, p. 290, so as to make the release and donation of the loan of said funds dependent upon the com- pletion "of said railroad in five years from the approval of the act." There is no doubt, however, but that the completion of the road from Guntersville to Gadsden satisfies the conditions of the act of 1889 above referred to, and discharges the road from further liability for the funds loaned to them. 318 ABSTRACT OF TITLE TO WEST NASHVILLE BRANCH CHAPTER XXVIII. THE WEST NASHVILLE RAILWAY COMPANY. (WEST NASHVILLE BRANCH.) How acquired by Nashville, Chattanooga & St. Louis Rail- way. On July 6, 1887, the Nashville Land Improvement Company, in pursuance of a resolution of its directors and stockholders, sold the West Nashville Railway, its rights, fran- chises, etc., to the Nashville, Chattanooga & St. Louis Rail- way. The Nashville Land Improvement Company had previ- ously purchased the road, franchise, etc., from the West Nash- ville Railway Company, which latter company was chartered under the general acts of 1875, ch. 142, to construct a railroad from a point on the Northwestern division of the said Nash- ville, Chattanooga & St. Louis Railway, about two and three- fourths miles from the Church street depot, to a point on the bluff on the Cumberland river near the line between the Mark S. Cockrill place and the old Clifton town site, in Davidson county, Tennessee. The consideration paid was an agreement on the part of the Nashville, Chattanooga & St. Louis Railway to operate the road and charge thereon for freight and passengers according to a scale set out in the deed, and, in addition, to run a certain number of trains per day. For a more perfect enumeration of the considerations passing, see deed in next chapter. 1. The agreement as to the number of trains to be run per day has been considerably modified by subsequent agreement. 2. Legality of purchase. The purchase of this road, franchises, etc., was legal under the Acts of 1871, ch. 69, which superseded the Acts of 1871, ch. 22. 3. Deed, where registered. The deed to the road is registered in the register's office of Davidson county, in book 109, p. 47. What franchises, etc., passed under this sale. in addition to the railroad and properties therein conveyed, the deed spe- NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 319 cifically provided for the transfer of all the rights, privileges, and franchises of the West Nashville Railway Company. For enumeration of said franchises, etc., see charter further on in this chapter. Width Of right Of way. The width of the right of way over that part of the road purchased from the Nashville Land Im- provement Company is twenty feet on either side of the center of the road, save through the Elliston tract, which will also fully appear from the deed to said road in the next chapter. Since the purchase of the road, however, from the Nashville Land Improvement Company, the same has been extended some distance. Over the line of this extension, if no contrary agree- ment with the landowner was entered into, the Nashville, Chat- tanooga ers for stock, the amount to be called for at any one time; and in case of failure of any stockholder to pay the amount thus subscribed by him ut the time and in the amounts thus called, a right of action shall exist in the corporation to sue said defaulting stock- holder for the same. *See 3 Hum., 531; 12 Lea, 252; 4 Cold., 101. SEC. 4. Directors, quorum Of, bOOkS. The board of direct- ors, which may consist of five or more members, at the option of the corporation, to be elected either in person or by proxy, by a majority of the votes cast, each share representing one vote, shall keep a full and true record of all their proceedings, and an annual statement of receipts and disbursements shall be copied on the minutes, subject at all times to the inspection of any stockholder. The books of the corporation shall show the original or subsequent stockholders, their respective inter- ests, the amount which has been paid on the shares subscribed, the transfer of stock, by and to whom made; also other trans- actions in which it is presumed a stockholder or creditor may have an interest. SEC. 5. Unpaid StOCk. The amount of any unpaid stock due from a subscriber to the corporation shall be a fund for the payment of any debts due from the corporation, nor shall the transfer of stock by any subscriber relieve him from pay- ment, unless his transferee has paid up all or any of the balance due on said original subscription. See 10 Pickle, 154, 608. SEC. 6. Express and implied powers. By no implication or construction shall the corporation be deemed to possess any powers except those hereby expressly given or necessarily im- plied from the nature of the business for which the charter is granted, and by no inference whatever shall said corporation possess the power to discount notes or bills, deal in gold or silver coin, issue any evidence of debts as currency, buy and sell any agricultural products, deal in mt'ivlmidisi'. or engage in any business outside the purpose of the charter. 21 32'2 ORIGINAL CHARTER WEST NASHVILLE BRANCH SEC. 7. Charter may be repealed or amended. The right is reserved to repeal, annul, or modify this charter. If it is re- pealed, or if the amendments proposed, being not merely auxil- iary.but fundamental, are rejected by a vote representing more than half of the stock, the corporation shall continue to exist for the purpose of winding up its affairs, but not to enter upon any new business. If the amendments or modifications, being fundamental, are accepted by the corporation as aforesaid, in a general meeting to be called for that purpose, any minor, married woman, or other person under disability, or any stock- holder not agreeing to the acceptance of the modification, shall cease to be a stockholder, and the corporation shall be liable to pay said withdrawing stockholders the par value of their stock, if it is worth so much; if not, then so much as may be its real value in the market on the day of the withdrawal of said stock- holders as aforesaid; Provided, That the claims of all creditors are to be paid in preference to said withdrawing stockholders. This charter is different from that of the Nashville, Chattanooga & St. Louis Railway in many ways. The charter of the latter company cannot be repealed or amended without consent of company. See sec. 34 of that charter. SEC. 8. Directors, quorum, powers, mortgages. A major- ity of the board of directors shall constitute a quorum, and shall fill all vacancies until the next election. The first board of di- rectors shall consist of the five or more corporators who shall apply for and obtain the charter. The said corporation may have the right to borrow money and issue notes or bonds upon the faith of the corporate property, and also to execute a mort- gage or mortgages as further security for repayment of money thus borrowed. SEC. 9. Condemnation of right of way; two hundred feet. The said corporation shall have the right, in pursuance of the general law authorizing the condemnation of private property for works of internal improvement, as set forth in 1325 to 1348 in the code (both inclusive), to appropriate, as an ease- ment, the right of way, not exceeding two hundred feet over the land of any person through which the line of the track may be located. Said sections of the code are hereby literally copied and inserted in the words and figures following: NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 323 SEC. 10 (1325). Land may be taken, hOW. Any person or corporation authorized by law to construct any railroad, turn- pike, canal, tollbridge, road, causeway, or other work of in- ternal improvement to which the like privilege is conceded, may take the real estate of individuals not exceeding the amount prescribed by law, or by the charter under which the person or corporation acts, in the manner and upon the terms herein pro- vided. (Iowa code, 1851, 759.) 1. Disability of owner does not affect right. The right to take land under the power of eminent domain is not restricted by any disability of the owner, who is entitled to demand and receive the value of the prop- erty, but must show title. 3 Head, 63. 2. What property may be taken. By Acts 1885, ch. 135, the opera- tion of this and succeeding sections was extended so as to apply and in- clude the condemnation of private corporations. See Act itself for method. 3. Must not take county road By Acts 1889, p 447 (Shannon's code, 3 1879), it was made unlawful to construct or use any steam railway on any county road or highway, without the consent of the county court, to be granted in the method therein set out. SEC. 11 (1326). Proceedings, petition, etc. The party seek- ing to appropriate such lands shall tile a petition in the circuit court of the county in which the land lies, setting forth in sub- stance: (1) The parcel of land a portion of which is wanted, and the extent wanted, (2) the name of the owner of such land, or, if unknown, stating the fact, (3) the object for which the land is wanted, (4) a prayer that a suitable }>ort5on of land may be decreed to the jxititioner, and set apart by metes and bounds. (Iowa code, 1851, 760.) The petition need not be sworn to. SEC. 12 (1327). Notice to Owner. Notice of this petition shall IK) given to the owner of the land, or, if a nonresident of the county, to his agent, at least five days before its presenta- tion. (Ib. , modified.) SEC. 13 (1328). Where owner nonresident. If the owner is a nonresident of the state, or unknown, notice shall be given by publication as provided in this code in similar cases in chan- cery. SEC. u (1329). Proceedings only bind parties. All parties having any interest in any way in such land, may be made de- 324: ORIGINAL CHARTER WEST NASHVILLE BRANCH fendants, and the proceedings will only cover and affect the in- terest of those who are actually made parties, unborn remain- dermen being, however, bound by proceedings to which all living persons in interest are parties. Tenants for life, years, and reversioners are interested parties, and must be compensated. 2 Head (Tenn. ), 65, 176. SEC. 15 (1330). Writ of inquiry of damages. After the requisite notice has been given, if no sufficient cause to the con- trary is shown, the court shall issue a writ of inquiry of dam- ages to the sheriff, commanding him to summon a jury to in- quire and assess the damages, flowa code, 1851, 763.) SEC. 16 (1331). Clerk to issue writ, sheriff to summon jury. By consent of parties, or on application of the plaintiff, unless objection is made by the defendant, the writ of inquiry may be issued by the clerk, as of course, after service of notice, on which the sheriff will summon the jury. SEC. 17 (1332). Jury to be disinterested. The jurors shall not be interested in the same, or a similar question, and shall possess the qualifications of other jurors, and may be nominated by the court, selected by consent of parties, or summoned by the sheriff. SEC. 18 (1333). Failure tO attend. If named by the court, and the persons named are unable to attend when summoned, the place of such persons shall be supplied by the sheriff. SEC. 19 (1334). Number of jurors, challenges. The jury will consist of five persons, unless the parties agree upon a different number; and either party may challenge for cause, or peremptorily, as in other civil cases. See 11 Heis., 56; 12 Heis., 56, 57. SEC. 20 (1335). Notice Of taking inquest. The sheriff shall give the parties or their agents, if residents of the county, three days' notice of the time and place of taking the inquest, unless the time has been fixed by the order of the court. (Iowa code, 1851, sec. 771.) SEC. 21 (1336). Jury to be sworn by sheriff. The jury, before proceeding to act, shall be sworn by the sheriff, fairly and impartially, without favor or affection, to lay off by metes NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 325 and hounds the land required for the proposed improvement, and to inquire and assess'the damages. SEC. 22 (1337). To examine ground and assess damages. The jury will then proceed to examine the ground, and may hear testimony, but no argument of counsel, and set apart by metes and bounds, a sufficient quantity of land for the purposes intended, and assess the damages occasioned to the owner thereby. (Iowa code, 1851, 768.) See 3 Lea, 48'J. SEC. 23 (1338). Damages, hOW estimated. In estimating the damages, the jury shall give the value of the land without deduction, but incidental benefits which may result to the owner by reason of the proposed improvement may be taken into con- sideration in estimating the incidental damages. For full discussion of this, see Eminent Dmtutln herein. Refer to index. SEC. 24 (1339). Report returned in writing. The report of the jury shall be reduced to writing, signed by a majority of the jurors, delivered to the sheriff, and by him returned into court. SEC. 25 (1340). Confirmation Of report. If no objection is made to the report, it is confirmed by the court, and the land decreed to the petitioner, upon payment to the defendants, or to the clerk for their use, of the damages assessed, with costs. (/., 775, modified.) SEC. 26 (1341). Exception to report and new writ. -Either party may object to the report of the jury, and the same may, on good cause shown, be set aside, and new writ of inquiry awarded. (Act 1849-50, ch. 72, sec. 5.) SEC. 27 (1342). Appeal, new trial. Either party may also api>eal from the finding of the jury, and on giving security for the costs, have a trial anew before a jury in the usual way. (//>., modified.) See 12 Heis. (Tenn.), 57. SEC. 28 (1343). Costs against appellant, when not. If the verdict of the jury upon the trial affirms the finding of the jury of inquest, or is more unfavorable to the appellant than the finding of such jury, the costs shall be adjudged against 326 ORIGINAL CHARTER WEST NASHVILLE BRANCH such appellant; otherwise the court may award costs as in chan- cery cases. (/&.) SEC. 29 (1344). Appeal does not Suspend work. The taking an appeal does not suspend the operations of the petitioner on the land, provided such petitioner will give bond with good security, to be approved by the clerk, in double the amount of the assessment of the jury of inquest, payable to the defendant, and conditioned to abide by and perform the final judgment in the premises. SEC. 30 (1345). Preliminary surveys, damages. A person or company actually intending to make application for the privileges herein contemplated, and entering upon the land of another for the purpose of making the requisite examinations and surveys, and doing no unnecessary injury, is liable only for the actual damage done; and sued in such case, the plaintiff shall recover only as much costs as damages. (Iowa code, 1851, 778.) SEC. 31 (1346). Damages to be prepaid, or bond on appeal. No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way until the damages assessed by the jury of inquest and the cost have been actually paid; or, if an appeal has been taken, until the bond has been given to abide by the final judgment as before provided. See 6 Cold., 162; 7 Heis., 518. 535; 13 Lea, 671. SEC. 32 (1347). Owner may have inquest or sue for dam- ages, When ; proceedings. If, however, such person or com- pany has actually taken possession of such land, occupying it for the purpose of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest. SEC. 33(1348). Limitations of proceedings by owner. The owners of land shall, in such cases, commence proceedings within twelve months after the land has been actually taken NASHVILLE, CHATTANOOGA fe ST. LOUIS RAILWAY. 327 possession of, and the work of proposed internal improvement begun, saving, however, to unknown owners and nonresidents twelve months after actual knowledge of such occupation, not exceeding three years, and saving to |>ersons under disabilities of infancy, coverture, and unsoundness of mind twelve months after such disability is removed, but not exceeding ten years. SEC. 34. Gauge, transportation charges; tracks not to ob- struct roads, Streets, etc. The corporation is authorized to adopt such gauge as they may prefer. The charge for trans- portation shall not exceed twenty-five cents per hundred pounds on heavy articles and ten cents per cubic foot on articles of measurement for every hundred miles transported, and four cents }>er mile for every passenger, with power to make special contracts with shippers on their roads in regard to rate of freight, so as not to exceed the amounts herein designated. The line of track of the road shall be so constructed so as not to interfere with convenient travel of the public along the high- ways, country roads, streets and alleys of cities, towns, and villages, and so as to allow carts, wagons, carriages, and other vehicles conveniently and safely to pass over or under the line of the track, and so as not to intercept traveling on foot or horseback, or in vehicles of any kind, from the necessary and proj>er use of the public roads, streets, or alleys, in the usual and proper mode for their convenience. SEC. 35. Crossings, Signboards. Boards well supported by posts or otherwise shall be placed and constantly kept across each public road, when the same is crossed on the same level by the track of the railway, the Ixmrds to be elevated so as not to obstruct travel, and on each side of said boards there shall be printed in large letters, easily to be seen by the traveler, the words: "Railroad Crossing Look out for the Cars.'' Said boards need not l>e put up at the crossing of streets and alleys in cities, towns, and villages, but such railroad company shall 1x3 subject to such proper regulations made by municipal au- thorities, in pursuance of general municipal powers regulating speed, passage, and flagmen in such municipalities and at cross- ings; and when there are sidings and switches, the whistle shall 328 ORIGINAL CHARTER WEST NASHVILLE BRANCH always be blown at a distance of not less than two hundred and fifty yards from every crossing of a public road. When land on both sides of the track is owned by the same proprietor, convenient crossings shall be made and kept up at the expense of the corporation for the use of said proprietor, and all neces- sary cow-gaps made. SEC. 36. Regulations for running trains; fare must be paid. The board of directors shall fix the regular times for the running of trains for the transportation of passengers and property, and shall furnish sufficient accommodation for the safe, comfortable, and convenient transportation, and shall take, transport, and discharge such passengers and property at, from, and to such places on the due payment of freights, tolls, and fare legally authorized to be charged therefor, and in case of the refusal of said corporation, their officers or agents, to take and transport any passenger, or to deliver the same, or either of them, at the regular and appointed time, such corporation shall pay to the party aggrieved all damages thereby suffered, with costs of suit. If any passenger refuse to pay his toll or fare, the conductor may put him off the cars at any station or convenient point where said passenger can step on land. SEC. 37. Prohibited contracts, must receive freight from Other roads. The corporation shall make no contract giving any person a preference in the speedy shipment of freights. This corporation shall receive on their road fall freighted cars from other roads, and transport them, without breaking bulk, to the place of destination, charging for the goods, wares, and merchandise therein no greater rate of freight than is charged for similar goods, wares, and merchandise in their own cars, and return said cars free of charge; Provided, The cars thus to O ' 7 be received are good and substantial, and also provided the distance said wares and merchandise are to be transported is not less than twenty miles. SEC. 38. Officers and directors, capital stock, shares, books. The said five or more corporators shall, within a convenient time after the registration of this charter in the office of the secretary of state, select from their number a NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 329 president, secretary, and treasurer, or the last two offices may be combined into one, and shall not necessarily be stockholders, said president and the other corporators to constitute the first board of directors. The hoard of directors may fix the amount of capital stock of the company and the number of shares into which the same may be divided, and under their direction sub- scription books may be opened to obtain stock, all other per- sons having an equal right with said original cor|x>rators to subscribe for stock until the full amount of said capital stock is subscribed. When a sufficient amount of stock is subscril>ed, notice, personal or by advertisement in a newspaper where the principal office of the corporation is to be kept, is to l>e given of the time and place of an election of officers. The result of all elections is to be determined by a majority of the votes cast, each share to represent one vote. SEC. 39. Directors may increase capital. The board of di- rectors may, at any time, increase the capital stock, if the necessities of the corporation, in their estimation, require said increase. The capital stock was increased to $80,000. See secretary of state's office, book PR p. 107. SEC. 40. May enter upon private lands. The company, by its officers or agents, may enter upon the lands of private per- sons for the purpose of making surveys, estimates, and location of route. SEC. 41. Shares of stock personalty. The stock is to be impressed with the character of personal projxjrty. We, the undersigned, apply to the State of Tennessee, by virtue of the law of the land, for a charter of incorporation for the purposes and with the j>owers, etc., declared in the fore- going instrument. Witness our hands, this sixteenth day of March, 1887. NORMAN M. PIERCE, VOLNKY JAMES, L. H. DAVIS, H. W. BUTTORFF, H. M. PIERCE. The above charter was properly acknowledged and registered in the register's office of Davidson county, in book 103, p. 1, and in secretary of state's office, in book F, p. 126. 330 DEED TO WEST NASHVILLE BRANCH CHAPTER XXIX. DEED TO WEST NASHVILLE RAILWAY. NASHVILLE LAND IMPROVEMENT COMPANY \ TO -Deed. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY. ) WHEREAS, The Nashville Land Improvement Company, a corporation chartered under the laws of the State of Tennessee, is the owner, by deed and otherwise, of a railroad consisting of track bed, steel rails, cross-ties, and a right of way forty feet in its entire width, or of twenty feet on either side of the center of the track as now laid out and fenced, together with the fran- chise to operate the same, and other rights and privileges hereunto appertaining and belonging, with depots and depot grounds, buildings, switches, etc., extending from a point on the Northwestern division of the Nashville, Chattanooga & St. ' O Louis Railway, two and six-tenths miles from Church street, twelve thousand feet to a point near Cumberland river, and wherever said land improvement company own other lands be- yond the terminus of said road, and desire to have said road extended as hereinafter indicated; and, WHEREAS, Said land improvement company desires to sell said railroad, and all its franchises, rights, privileges, etc., as more fully set out herein, to the Nashville, Chattanooga & St. Louis Railway, and to secure to itself thereby certain benefits of transportation freightage; Now, in consideration of this conveyance, and the mutual covenants, agreements, and undertakings herein specified and set out, the said land improvement company does hereby bar- gain and sell, alien and confirm and convey, to the Nashville, Chattanooga & St. Louis Railway, and its assigns and its suc- cessors forever, the following real and personal estate, viz. : Said railroad tracks as now located, laid out and built, com- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 331 mencing at a point on the Northwestern division of the Nash- ville, Chattanooga & St. Louis Railway, as indicated in the preamble hereto, for the distance of 12,000 feet, to a point near the Cumberland river, and to station 120 of said railroad tracks, and continuing; from that point north 2 3" east 25 feet from station 120; running thence north 87 31" west 1,110 feet; thence north 2 30" east 25 feet; thence north 87 30" west 33.3 feet; thence on a 3^ curve to right 1,200 feet; thence north 37 25" west 2,654 feet; thence south 32 s 35" west 100 feet; thence south 57 25" east 2,654 feet; thence on a 3 curve to left 1,204 feet; thence south 87 C 30" east 1,143.3 feet; thence north 2 3" east 75 feet to the beginning, together with all the steel rails, cross-ties, fastenings, spikes, switches, turn- outs, fences, depots and depot buildings, warehouses, sheds, and all appurtenances upon, over, and along said track as laid out, or upon said right of way as indicated herein. Also does sell, bargain, and convey all its franchises, rights, Franchlses and privileges given or conferred by its charter. pass> Said rights of way consist of forty feet of land, or twenty feet from the center of said track on either side , . . ,. , Right of way. between the two termini mentioned, except as par- ticularly specified, and except along that portion of said track which passes through the land of Joseph Elliston. On his por- tion of said track the width thereof is n sufficient number of feet on either side of each track as now laid out to lay a double track. Also it does alien and convey all its depots and depot grounds as now laid off and built upon, as shown upon plan No. 1 of said land improvement company. Also does it bar- gain and sell, alien, confirm, and convey, by this deed, blocks 85), 10, 12, 31, and 33, as laid out and described, and bounded as shown on said plan No. 1 of said land improvement com- pany, which plan is registered in the register's office of David- son county, book 57, pp. 74, 75. And the said Nashville Land Improvement Company hereby covenants with the Nashville, Chattanooga & St. Louis Railway and its successors and assigns forever, that it is lawfully seized and possessed of each and every part and parcel of the real es- 332 DEED TO WEST NASHVILLE BRANCH tate hereinbefore described, and of the rights of way hereinbe- fore described, to the width and extent set out, and of the other property herein described, and that it has a good right to con- vey the same, and that the same is free of all liens, taxes, mortgages, and other incumbrances whatever; and it forever warrants and defends the tit'.e of the same to the Nashville, Chattanooga & St. Louis Railway, its successors and assigns forever. The Nashville, Chattanooga & St. Louis Railway, in consideration of the premises, covenants and binds itself to take said property for railroad purposes, and use and operate the same as a railroad, with a view to develop the best interest of the land improvement company, and it also agrees and binds itself to run and operate trains along and upon said road at the following rates for passengers and freights: That it will charge between West Nashville and the Church street depot of Nash- ville, Chattanooga & St. Louis Railway not exceeding one cent per hundred pounds either way in full carloads on lumber, brick, stone, machinery, lime, sand, coal, coke, pig iron, wood, or heavy freight for building purposes; also raw material for manufacturing purposes, and the products of factories located in West Nashville, said freight to be loaded and unloaded by shippers or consignee, and that it will not charge on any other freight between said points exceeding ten cents per hundred pounds, and that no transfer charge will be made either way between Nashville and West Nashville upon shipments of freight to or from West Nashville to or from points on or reached via the Nashville, Chattanooga & St. Louis Railway or the Louis- ville & Nashville Railroad. The Nashville, Chattanooga & St. Louis Railway also agrees and covenants to run from Church street to the terminus of the West Nashville Railway in West Nashville, three passenger trains daily each way one in the morning, one at noon, and one in the evening charging five cents per passenger each way, and will run to the passenger depot in West Nashville four other passenger trains daily each way two in the morning and two in the afternoon if re- quested to do so by the land improvement company, and such other trains as the business may require, and may charge five NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 333 cents {)cr passenger each way; and it is further understood and agreed that it will make special rates for school children, and that none of the above rates include baggage; and it also agrees as manufactories are consecutively erected along the line of road as indicated herein, that it will extend the same along the line thereof and upon the right of way as indicated herein. This July 6, 1887. NASHVILLE LAND IMPROVEMENT COMPANY, [SEAL.] By H. M. PIERCE, President, C. FLISHER, Secretary. STATE OF TENNESSEE, ) Davidson County. f Before me, J. C. McReynolds, notary public in and for said state and county, personally appeared H. M. Pierce and C. Flisher, with whom I am personally acquainted, the said H. M. Pierce being known to me to be the president and the said C. Flisher being known to be the secretary of the Nashville Land Improvement Company, the bargainor, and they severally acknowledged that said company and they, as its president and secretary, respectively, executed the foregoing instrument for the purposes therein expressed. And the said H. M. Pierce and C. Flisher, being by me first duly sworn, did severally de- pose and say that the said H. M. Pierce was the president of the Nashville Land Improvement Company, the within named bargainor, and the said C. Flisher was the secretory thereof; that they knew the corporate seal of said company, and that the seal affixed to the foregoing instrument, purjx)rting to be the corporate seal of said company, was such corj>orate seal, and that the same was thereto affixed by order of the board of directors of said company, and that, by like authority, they severally subscribed their names thereto as president and sec- retory of said company, and as its said act and deed, for the purposes therein expressed. Witness my hand and seal, this sixth day of July, A.D. 1887. [SEAL.] J. C. MCREYNOLDS, Xotary Public. 334 DEED TO WEST NASHVILLE BRANCH The transfer of the West Nashville Railway to the Nashville, Chattanooga & St. Louis Railway, upon the terms and condi- tions set out in the annexed deed, is hereby accepted, in pur- suance of authority given by the board of directors and stock- holders of this company at their annual meeting held this day. Nashville, Tennessee, September 14, 1887. THE NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, BY J. W. THOMAS, President. J. H. AMBROSE, Secretary. STATE OF TENNESSEE, ) Davidson County. j" Personally appeared before me, J. T. Spaulding, a notary public in and for the county aforesaid, the Nashville, Chatta- nooga & St. Louis Railway, by J. W. Thomas, president, and J. H. Ambrose, secretary, with both of whom I am person- ally acquainted, and who acknowledged that they each exe- cuted the foregoing instrument for the purposes therein con- tained. Witness my hand and notarial seal, at Nashville, Tennessee, this fourteenth day of September, 1887. [SEAL.] J. T. SPAULDING, Notary Public. Received September 14, 1887, at 4:40. Registered in R. O. D. C., in book 109, p. 47. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 335 CHAPTER XXX. WESTERN A ATLANTIC RAILROAD. [WESTERN & ATLANTIC BRANCH.] How acquired by the Nashville. Chattanooga & St. Louis Railway. The Western & Atlantic Kail road, which extends from the city of Atlanta, Ga., to the city of Chattanooga, Tenn., a distance of 138 miles, is owned by the State of Geor- gia. On November 12, 1889, the legislature of that state passed an act authorizing the road to be leased. Advertise- ment was made for bids, in conformity to the provisions of the act, and the Nashville, Chattanooga & St. Louis Railway submitted a proposition, in writing, offering to lease the road, together with all its houses, workshops, rolling stock, depots, and appurtenances of every kind and character, subject to the provisions of the act above referred to, for the period of twenty- nine (29) years, and agreeing to pay therefor the sum of thirty- five thousand and one dollars (#35,001) per month as rental for the same. This bid was accepted June 30, 1890, and on July 19, 1890, the governor of the state formally executed the lease contract, which was to take effect immediately after the termination of a then existing one which had been executed on December 27, 1870, and was to expire twenty years thereafter. The act of November 12, 1889, authorizing the lease may be found further on in this chapter, and the lease contract is set out in the next. 1. When road built by Georgia. The Western A Atlantic Railroad was authorized to be built by an act of (Jeorgia approved December 21, 183t>, and amended by acts December 23. 1837: December 2U, 1838 (two acts); December 18, 1838; December 21. 183'.l; December 24, 1840; Decem- ber 4, 1841; December 1, 1842; December 22, 1843; December 24. 1845; December 2fl, 184f>; December 27. 184. r >; December 30, 1847; December 23, 1847; February 23, ISM) (two); February 8. 1850. 2. Legality of lease. The Nashville. Chattanooga & St. Louis Kail- way had the power to lease this road. Under the Acts of Tennessee, 1857-58, ch. 8, p. 5, it was granted the authority to lease any railroad 336 ABSTRACT OF TITLE WESTERN & ATLANTIC BRANCH connecting with it for such time and upon such terms and conditions as might be agreed upon. In addition, the authority was also conferred by Acts 1869-70, ch^ 49, p. 327, sec. 4; 1871, ch. 69; 1881, ch. 9, p 10, sec. 2. Authority to lease has been enlarged subsequently to the execution of the lease contract by Acts 1891. ch. 61, p. 146, and ch. 125, p. 274. The lease act itself gave axithority in Georgia, though the power was already possessed. See, also, general discussion herein under the power to Lease. Refer to index. 3. What personal property passed under lease. In addition to the railroad, the Nashville. Chattanooga & St. Louis Railway also came into possession of the following property under said lease contract: Forty-five locomotives, valued by the state at $161,526 and by lessee at $109,300; 32 passenger, baggage, and postal cars, valued by state at $66,- 600 and by lessee at $o5,200; 455 box cars, valued by state at $91,910 and by lessee at $68,250; 120 coal cars, valued by state at $21,000 and by lessee at $15, 000; 100 flat cars, valued by state at $16, 000 and by lessee at $10,000; 15 stock cars, valued by state at $4,005 and by lessee at $2,250; a large quantity of tools, supplies, etc., valued by the state at $33,093.60 and by lessee at $33,093.60. All the foregoing property is carefully and accurately itemized and is now on file in the secretary's office, and is itemized and set out in full in next chapter. 4. Relation state of Georgia bears to road. See 964 of the code of Georgia, 1882. See also, 54 Georgia, 635; 28 Georgia, 180. 5. What laws applicable to road. See I 965 et seq. of the code of Georgia, 1882. See also, " Lease Act" further on in this chapter. Width Of right Of way. There is nothing in the acts of Georgia, approved December 21, 1836, or amendments thereto, authorizing the road to be built, which specifies any particular number of feet to be appropriated for a right of way, nor is there any clause providing for a specified width in the absence of any contract with the original landowner, where he failed to apply in time for assessment. This being so, the width of right of way in Georgia will depend upon the actual amount appro- priated through each landowner's premises, and to determine which reference must be had to the records on file in each county through which the road runs. The state claims, how- ever, to own thirty -three feet on each side of the center of the road. In Tennessee the width of right of way is ascertained differ- ently. By Acts Tenn., 1837-8, ch. 221, p. 319, the Western & Atlantic Railroad was authorized to be built in Tennessee, with all the rights, privileges, etc., of the Hiwassee Railroad Company, and by Acts 1847-8, ch. 195, p. 330, all the rights, privileges, and immunities of the Nashville & Chattanooga Railroad Company were conferred upon the State of Georgia in the construction of said road. Sections 24 and 25 of the NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 337 charter of the Nashville & Chattanooga Railroad Company grant it one hundred feet on either side of the center of the road, in the absence of any contract with the original landowner to the contrary, where he failed to apply in time for assess- ment of damages. 5 Pickle (Tenn.), 293. For a full discussion of this, see notes to sees. 24 and 25 of the charter of the Nashville & Chattanooga Railroad Company, ch. 1 herein. 1. The Acts of Tenn., 1837-8, ch. 221, and Acts 1847-8, ch. 195. above referred to, are set out in the next chapter among the Tennessee acts relating to the Western fc Atlantic Railroad. 2. Hiwassee Railroad Company charter. For. charter of Hiwassee Railroad Company, see p. 63 herein. 3. Nature of company's control of right of way. The dominion of a railroad corporation over its trains, tracks, and right of way is no less complete or exclusive than that which every owner has over his own property. Hence the corporation may exclude or admit whom it pleases when they come to transact their own private business with passengers or other persons. This applies to selling lunches to or soliciting orders from passengers, and a mere implied license, no matter how long en- joyed, to transact such business, for which no compensation has been paid, is revocable at any time. 81 Ga., 461. See, also, general discussion herein, under Rhjlit of Way, Rules and Regulations. .Refer to index. 4. Map of right of way. By Acts Ga., approved December 16, 1895, a map of the entire line of the Western & Atlantic Railroad has been made, and is now on file in the secretary of state's office. A certified copy thereof is admitted as prlnui facie evidence by terms of act. ACT AUTHORIZING LEASE OF WESTERN & ATLANTIC RAILROAD, AND INCORPO- RATING LESSEES. [Acts Georgia, 1889, p. 362.] SECTION 1. Governor authorized to lease Western & Atlantic Railroad; terms. Be it enacted by the Senate and Home of Representatives of the. State of Georgia, in General Assembly met, That the governor of the state l>e, and he is hereby, au- thorized to lease the Western & Atlantic Railroad, together with all its houses, workshops, rolling stock, depots, and ap- purtenances of every kind and character, to a company or cor- poration, or to any party or parties, who shall give good and sufficient security as hereinafter provided for; the said lease to take effect and become operative f rom and after the expira- tion of the present lease, upon the following terms and accord- 338 ACT LEASING WESTERN & ATLANTIC BRANCH ing to the folio win provisions: The said lease to be Temrsoflease. c . , for a term of not less than twenty years, and for a sum of not less than thirty-five thousand dollars per month; or for a term of not less than thirty years, and for a sum of not less than forty thousand dollars per month; or for a term of fifty years, and for a sum of not less than forty-five thousand dollars per month, the rental to be paid monthly into the treas- ury of the state, for the use of the state. Lease, when made. When advertisement was made under this act, the Nashville, Chattanooga & St. Louis Railway submitted a bid, which was accepted June 30. 1890, and, on July 19, 1890, the governor of the state formally executed the lease contract to said railroad company. See contract of lease in ne^t chapter. SEC. 2. Governor tO advertise for bids. Be It farther en- acted, That the governor shall advertise for four weeks, weekly (immediately preceding the twenty-seventh of June, 1890), in such newspapers in the State of Georgia as he ma} 7 designate, the number not to exceed four, and also one leading newspaper in each of the following cities: Chicago, 111., Cincinnati, Ohio, New York, N. Y. , such advertisement to be a definite proposal for bids as authorized by this lease act for the lease of the Wes- tern & Atlantic Railroad and other property in this act re- ferred to. SEC. 3. Bids, how made and opened ; rejection of, readver- tisement. Be i.t further enacted. That all bids for the lease of said road shall be submitted, in writing, to the governor of this state, on or before the twenty-seventh day of June, 1890, Check for and accompanied by a certified check for 25,000, $25,000 to / . ,. accompany bid. on some good and solvent bank in this state, as a guarantee of the good faith of the bidder, to be forfeited to the state if the bid is accepted by the state and the terms thereof shall not be complied with by the bidder. And the governor, comptroller-general, secretary of state, treasurer, and attorney- general, or a majority of them, within three days after the ex- piration of the time allowed for the reception of bids, shall open and examine said bids in the presence of the Opening bids. ... . . , , ,, . ,. , public and the bidders or their representatives who may be present; and the governor shall give due notice of the NASHVILLE, CHATTANOOGA elow their par value, or be re- duced in payment of penalty in the nature of forfeiture, said lessees shall, within thirty days, make good said dejwsit, on l>eing notiHed thereof by the governor, by the deposit of other bonds of like kind as above, so that bonds of the par and market value of five hundred thousand dollars shall, at all times, l>e deposited with 340 ACT LEASING WESTERN & ATLANTIC BRANCH the treasurer as aforesaid, and, in default thereof, the governor may, in his discretion, declare said lease forfeited, Forfeiture. . , . . . with all the incidents of forfeiture herein provided. It shall be the duty of the governor and treasurer, from time Value of bonds ^ time, *o inquire into the value of said bonds so ported b to r feg- deposited and report the same to each session of the legislature, and said bonds shall be held as collat- eral security by the state for the faithful performance of all the terms, obligations, and contracts of the lessees under said lease. In compliance with the terms of the above section, the Nashville, Chattanooga & St. Louis Railway deposited with the treasurer of the State of Georgia, when the lease was executed, the following bonds of the State of Georgia, which are now held by him, subject to the condi- tions of this act: Nos. 21 to 40, due 1921, for $5.000 each, making $100,- 000; Nos. 41 to 60, due 1922, for $5,000 each, making $100,000; Nos. 61 to 70, due 1924, for $5,000 each, making $50,000; Nos. 71 to 90, due 1924, for $5,000 each, making $100,000; Nos. 91 to 110, due 1925, for $5,000, each making $100,000; Nos. Ill to 120, due 1926, for $5,000 each, making $50, 000; total, $500,000. SEC. 6. Bonds collateral security for faithful performance Of lease; additional Security.^ it further enacted, That the bonds deposited under the requirements of the fourth section shall be regarded merely as collateral security for the faithful performance by the lessee of the terms of the lease contract, and shall not be held as exhaustive of other rights of the state as lessor. And after said bonds have been applied in whole or part, as damage, penalty, or forfeiture for any act done or omitted to be done, or any violation of the terms of the lease as herein provided, the original party to the lease, whether cor- poration, person, or persons, as well as the company chartered hereby as Western & Atlantic Railroad Company, shall be liable further to the State of Georgia for any damage caused the state by any breach or forfeiture, under said contract, of this act. In Additional addition to the deposit as security required by the security. terms of this act, and the personal and corporate liability imposed by the terms of this act, the legislature may at any time require the lessee or lessees to enter into bond with good security, to be approved by the governor and attorney- general, in such sum, not to exceed tive hundred thousand dol- lars, as the legislature may deem necessary to fully protect the interest of the state. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 341 . 7. Betterments; road to be kept first-class; examin- ers; lessee to report to legislature, when. Be it furtlw en- >/'//, That when the roae, and is hereby, distinctly provided that all im- provements, betterments, or ameliorations whatever, shall be made at the expense of the lessee or lessees, and no claim for such will ever )>e entertained or allowed by the state. All at- tachments to the realty shall be considered permanent. It is also distinctly provided that the lessee or lessees shall, at all times, keep the said road in the condition of first-class roads in Georgia, safely and expedltiously to carry on the business of said road. The governor of the state shall have the power to appoint a board of examiners, to consist of three, Boafd of and the board of examiners so appointed shall have ex mlners - the power to subpoena witnesses and examine them, and also the power to require the production of books, contracts, and any and all kinds of writings that may throw light or information upon the subject-matter or matters under investigation. And if, by re- port of the examiners appointed by the state's authorities, it shall appear that the lessee or lessees have permitted said road to be reduced to a condition below the first-class roads of Lessee liable ... .. . , for deteriora- this state, or any of said property has been lost, con- tion in value. sumed, or permanently removed from the state, the lessee or les- sees shall be liable for such depreciation or deterioration, or loss, consumption, or removal, and the governor of the state shallapply a sufficiency of the bonds deposited as security to restore said road to its condition at the date of the aforesaid previous examination; Pweided, That l>efore proceeding under and by vir- , . .j . Proviso, tue of any report of said examiners, to apply any of the bonds deposited by said company as security, the governor shall cause a copy of such report to be delivered to the presi- dent, or some other officer of said company, and the company, shall have ten days from the receipt of such copy within which to file objections to said report with the governor; and, upon such objections being tiled, the governor and the company shall appoint two men each, and these four shall appoint a fifth man, all of said men to l>e railroad experts, and none of them con- 342 ACT LEASING WESTERN e construed as an amendment of the charter of any corporation which may lease said road; Pro- vided further, That if said lessee is a corporation already in- corporated under the laws of Georgia, it shall oj>erate said rail- road as the "Western & Atlantic Railroad," and Corportte such lessee may l>e sued on any contract or cause of " me> whcn - 344: ACT LEASING WESTERN & ATLANTIC BRANCH action arising out of said lease for the operation of said road, in any county through which said road runs. 1. Incorporation. The Nashville, Chattanooga & St. Louis Railway, under the above section, became incorporated as to the line of this road in Georgia under the name and style of the "Western & Atlantic Rail- road Company." Under that name it must now be sued, or a nonsuit will be entered. 91 Ga., 24. 2. An act incorporating a company is a public law, and need not be given in evidence. 74 Ga., 509. SEC. 9. Freight and passenger tariffs, lessee to be held harmless against bonds On road. Be it further enacted, That said lease company shall be subject to, and required to observe and obey, all just and reasonable rules, orders, schedules of freight and passenger tariffs as may be prescribed by the laws of this state and the railroad commission of this state; and said lease company shall charge no greater rate per ton per mile on through freight on said railroad than the local rate allowed and fixed on similar freights by the railroad commission for said railroad; and said company shall not discriminate against any railroad company or persons, or parties or places having busi- ness connections or relations with said Western & Atlantic Railroad, but all schedules of freight and passenger tariffs shall be so arranged as to give all connecting roads and all places and persons having business relations with said road a fair and equal chance, doing equal justice between them in everything connected with the management of said road; and that said lease company shall have the exemptions, privileges, immuni- ties, rights, and guarantees, and shall be subject to the same laws, liabilities, disabilities, and public burdens on other rail- road companies in this state, and no more, in all cases where this act is silent and has made no provision on this subject. And it Is further enacted, That the state pledges her faith to redeem all bonds on said road which have been issued by the state and now recognized by the state and on which interest is now being paid, together with all interest coupons as they fall due, and to save the lessees harmless against said bonds and coupons. SEC. 10. Existing contract ; how road and rolling stock to be received and accounted for; forfeiture of \tast. Beit fur- NASHVILLE, CHATTANOOGA & ST. LOUI8 HAILWAY. 345 eiutcted, That the said lease shall in no way interfere with the contract now existing tatween the state and the ExlstlB| present lessees; and the lessees, under this act, shall contract - receive the roadbed in its condition at the time the lease con- tract is made, ordinary and natural wear and tear, until the ex- piration of the present lease, excepted; and the governor shall appoint three expert railroad men, not connected with the lease company or any corporation having shares therein, whose duty it shall he to examine the roadbed and its appurtenances within ten days prior to the oj>ening of the bids, and make a full and complete report of the condition of the same to the Reports as to governor, to be tiled in the office of the secretary road, of state, which report shall be taken as the true condition of the road at that time. In the event the road is re- in event road is readver- advertised for lease, a like examination and report tised. shall l>e made prior to the opening of the bids, together with that part of the personalty received by the lessees, except old iron, not in use, wood and cross-ties, and material in car shops and machine shops, and which is shown by the inventory of file in the secretary of state's office, taken under the lease act of 1870, and supplementary inventory of 1872, subject to the right of the present lessees, at option, to deliver the pro|>erty therein specified, if in as good condition as when received, or property of like kind and character, in a like condition, or of increased capacity, or, upon failure to do so, then to account for the full value of the same in money. The money so re- ceived shall be reinvested in engines or cars by said lessees, acting with the concurrence of a competent and disinter- ested railroad expert, to be appointed by the governor. Said property so purchased shall belong to the state, subject to the provisions of the lease, and an inventory of the same, signed by the lessees and the said railroad expert, shall be filed with the secretary of state; Provided, That the state shall not be bound, nor the rights of the state limited, by any statements or conclusions made in said report of said arbitration, of date December 19, 1872. In case the lessee or lessees under this act shall fail or refuse to pay whatever sum 346 ACT LEASING WESTEKN & ATLANTIC BRANCH Damages for ma y ^ e a g ree d upon, according to the provisions Monthly Wy f this act > as a monthly rental into the treasury of the state, within twenty days after the end of the month, the lessee or lessees shall forfeit to the state six months' rental as damages, to be collected out of the bonds de- posited under this act. For failing or refusing to comply with Forfeiture sa ^ l ease contract, the governor, at his option, may of lease. declare the lease forfeited, and take immediate pos- session of said road and its appurtenances; and if any resistance is offered by the lessee or lessees, it shall be the duty of the sheriffs of all the counties in this state through which said rail- road runs to aid the governor with the posse comitatus of their respective counties, to take the possession and expel the lessee or lessees who have failed or refused to make payments when due, as aforesaid; and in ten days after he has terminated the lease and taken possession of the road for the state, the gov- ernor shall apply the remaining bonds deposited as damages on account of the forfeiture as far as the same may go. The rolling stock and personal property received was itemized and re- ceipted for in full. The list is herein to be found in the next chapter. SEC. 11. Taxes, subletting prohibited, exception, improve- ments belong to State. Be it farther enacted, That said lessee or lessees shall be required to pay all taxes and assessments upon the property of this state in the State of Ten- Taxes. , . nessee, and in (jreorgia upon all property owned or controlled by them, not received from the state, and such fur- ther taxes upon their income as is now paid by the Central Railroad & Banking Company, and shall not sublet said" road, or any part thereof, to any other company, corporation, or party, provided the lessees may sublet any property not needed Proviso as to ^ O1 ra ^ roa( ^ purposes; Provided, That, in the opin- subiettmg. j on o f ^ ne attorney-general, this can be done with- out invalidating the state's title thereto; and all improvements put on said property by the lessees or their tenants, shall be- long to the state at the expiration of said lease. 1. Subletting prohibited; may mortgage, when. The above section, prohibiting subletting in no manner prevents the mortgage or assign- ment of the entire leasehold interest. It is frequently important to de- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 347 trrmine whether au act of the lessee is, in law, an assignment or a sub- leasing. It is uniformly held that if the entire leasehold interest is alien- ated, it is an amiiyinnent. If it is for a period which is to expire before the expiration of the original lease, it is a subleasing. Hurton on Real Property, sec. 889; J Wash, on Heal Property, sec. 510; 108 Mass., 558. See, also, 53 I'enn. St., 20(1806): 47 Minn.. lf*9; 102 X. Y., 008. A mortgage or assignment of the entire leasehold interest is in no man- ner a violation of a covenant not to sublet. The authorities are clear upon this subject. 27 Barb. (N. Y.). 415; 25 X. J. L. (1 Dutch.), 2U1, 285; 33 N. J. D. (4 Vr.), 254; 47 Minn., 189; 15 L. II. A., 230; 10 .Johns., 159; 1 Wood on Landlord and Tenant, sees. 258, 327; Taylor on Landlord and Tenant, sec. 16; 129 111., 318-327. See, also, 14 Lea(Tenn.), 92; 9 Lea, 1. Hence, there was nothing in the above section to prevent the Nash- ville, Chattanooga & St. Louis Railway from mortgaging its entire lease- hold interest in this road, which it did. together with the $500.000 of bonds deposited with the treasurer of Georgia, to secure an issue of $050,000 of bonds known as the ' Western t Atlantic Railroad Income Honds. " Said bonds were issued by the Nashville. Chattanooga & St. Louis Railway to reimburse itself for moneys expended by it in repair- ing and renewing the bridges, trestles, tracks, etc., of said Western fc Atlantic Railroad. 2. Taxes, how paid. The above section also provides that the com- pany shall pay "such further taxes upon its Income as is now paid by the Central Railroad fc Hanking Company." The latter company was incorporated by Acts (Ja., 1833. The seventh section of its charter pro- vided that it should pay one-half of one per cent, on its net Income. SEC. 1-2. Rent, how paid; shops to remain in state; prin- cipal Office. lie it further enacted, That all payments required to l>e made under said lease shall be made in gold, or its equiva- lent. The railroad shops of the Western & Atlantic Railroad shall not be removed beyond the state of Georgia, and the prin- cipal office of the Western & Atlantic Railroad shall be within the limits of the State of Georgia. SEC. is. Governor to operate road, when. /^ it further enacted, That, in the event of a failure to lease the Western & Atlantic Railroad, or in the event of a forfeiture of the lease at any time, the governor shall operate said road under the provisions of the laws of this state until a lease can be made under this or any subsequent act of the legislature. SEC. U. Conflicting laws repealed. Be it further enacted, That all laws and parts of laws in conflict with this act be, and the same are hereby, repealed. (Acts Ga., 1S80, p. 362; ap- proved November 12, 1889.) 348 LEASE CONTRACT WESTERN e entered on the the minutes of the executive department, together with both of the bids submitted as aforesaid, and the papers accompany- ing said bids, and was, together with accompanying paj)ers as aforesaid, entered on the minutes in said department in pursu- ance of said order; and, WHEREAS, Prior to the opening of said bids, the governor appointed three expert railroad men, to wit, Eben Hillyer, W. L. Clark, and .John Screven, not connected with the lease com- pany l>etween which and the said State of Georgia a lease of said railroad and the other property connected therewith now exists, or with any corporation having shares in said lease, who did, within ten days prior to the opening of said bids, examine the roadbed of the said the Western & Atlantic Railroad and its appurtenances, and made a full and complete report of the condition of the same to the governor, as required by the first clause or sentence of the tenth section of said act, which report 350 LEASE CONTRACT WESTERN & ATLANTIC BRANCH was filed, in accordance with said section, in the office of the secretary of the state, on the twenty-sixth (26th) day of June, eighteen hundred and ninety (1890), and is taken by the parties hereto as showing the true condition of said railroad and the appurtenances thereof, which are mentioned and the condition of which is stated in said report, at the time the said report was filed as aforesaid: Now, this indenture, made and entered into on this the nine- teenth (19th) day of July, eighteen hundred and ninety (1890), between the said John B. Gordon, governor of the said State of Georgia, and for and in behalf of said state, as party of the first part, and the said the Nashville, Chattanooga & St. Louis Railway, a corporation as aforesaid, as party of the second part, witnesseth: That the said party of the first part, under and by authority of the said act, approved November twelfth (12th) eighteen hundred and eighty-nine (1889), and in pur- suance thereof, in consideration of the premises, and especially of the agreement of the party of the second part to pay into the treasury of the said state, in the city of Atlanta, Georgia, the sum of thirty -five thousand and one dollars ($35,001) monthly, as required by said act, and of the deposit with the treasurer of said state recognized valid bonds of the State of Georgia of the par value of five hundred thousand dollars ($500,000), as required by said act, and particularly by the fourth and fifth sections thereof, as well as in consideration of all the other obligations and duties to be performed under the provisions of said act by the said party of the second part, does hereby lease to the said party of the second part, viz., to the Nashville, Chattanooga & St. Louis Railway, the said the Western & Atlantic Railroad (a railroad running from the city of Atlanta, in the State of Georgia, to the city of Chattanooga, in the State of Tennessee), together with all its houses, work- shops, rolling stock, depots and appurtenances of every kind and character, being the property of the State of Georgia, and which the said act authorizes the governor of said state to lease under the provisions thereof, for a term of twenty-nine (29) years, beginning from and immediately after the termination NASHVILLE, CHATTANOCMJA & 8T. LOUIS RAILWAY. 351 of the lease contract now existing (which was executed on the twenty-seventh (27th) day of December, eighteen hundred and seventy (1870), and ends twenty (20) years from that date.) Said lease is made to said party of the second part with all the rights, powers, and privileges conferred on said lessees by said act, approved Noveml>er twelfth (12th) eighteen hundred and eighty-nine (1889), and subject to all the requirements, obliga- tions, and duties thereby exacted of said lessee, and which the said party of the second part hereby agrees faithfully to [>erforni in accordance with the provisions of said act; the said party of the second part also specially agrees to pay into the treasury of the said State of Georgia, each month during the continuance of said lease, the sum of thirty-live thousand and one dollars ($35,001) in gold, or its equivalent, as required by said act. It is further stipulated and agreed by the parties hereto, that this lease is made by the -said party of the tirst part, and ac- cepted by the said party of the second part, under and sub- ject to all the provisions of the said act of the general assembly, approved, as aforesaid, on the twelfth (12th) day of November, eighteen hundred and eighty-nine (1880), and that both of the parties hereto, and all persons or corporations who are, or shall be, their lawful successors by virtue of said act, are, and shall be, bound in every particular by the provisions of said act, and that if said act conflicts in any resjract with this contract, said act is to govern and control. In witness whereof x the said .John H. Gordon, governor of the State of Georgia, has hereunto attached his official signa- ture and the great seal of said state; and the said the Nashville, Chattanooga & St. Louis Railway has, by its president, .John W. Thomas (who is authorized by said corporation so to do), signed and executed this contract and attached the corporate seal of said corporation, on the said nineteenth (19th > day of July, A.I), eighteen hundred and ninety (1890). Executed in duplicate in presence of PHILIP COOK, JOHN B. GORDON, Secretary of State. Governor. THE NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, J. H. AMBROSE, Secretary. By J. \V. THOMAS, 352 ROLLING STOCK LEASED WITH W. & A. BRANCH LIST OF ROLLING STOCK AND OTHER PERSONAL PROPERTY ACTUALLY RECEIVED FROM STATE OF GEORGIA BY NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. List of passenger, baggage, and postal cars received from the State of Georgia by the Nashville, Chattanooga & St. Louis Railway (lessee). NUMBER. PASSENGER CARS. VALUE BY STATE. VALUE BT LESSEE. 1 Built by W. & A. R. R. Co. Sept. 1858 $ 1,600 8 1,500 o Rebuilt ' June, 1888 3.000 2,500 4 " " June. 1888 3.000 2,500 7 " ' July, 1879 1,650 1,500 9 Built " Nov. 1880 1,750 1,500 10 Rebuilt Nov. 1888 3.100 2,500 11 " ' Mar. 1876 1,450 1,200 15 " " Mar. 1881 1.750 1,500 16 ... -- Nov. 1874 1,450 1,200 18 . - . . " Dec. 1888 3,150 2,500 19 " " Dec*. 1888 3.150 2,500 21 .- Built bv Jackson & Sharp, Sept. 1 880 2,000 1,700 22 Sept. 1880 2,000 1,700 23 W. & A. R. R. Co. Oct. 1880 2,000 1.700 24 " Oct. 1880' 2,000 1,700 25 Bought by W. & A. R. R. (2dh'd)Sep. 1 881 950 ' 750 27 Built by Ohio Falls Co. May, 1884 3,000 2.500 28 " May, 1884 3,000 2,500 29 " " May, 1884 3.000 2,500 Car Atlanta 3,600 3,000 1 BAGGAGE CARS. Rebuilt by W.&A.R.R.Co. Oct. 1878 1,200 1 000 o " " Nov. 1878 1.200 1,000 3 " Sept 1889 2 250 2 500 4 Built " Nov. 1889 2.250 2,500 5 - - Sept. 1881 1,750 1 250 6 " li Sept. 1881 1 750 1 250 May, 1885 2 050 1 500 6 COMBINATION CARS. Rebuilt by W. A A. R R Co June 1885 2 150 1 750 12 May. 1881 1,300 1 000 14 . " " Apr. 1881 1 300 1 000 NAME. (rate City . . B.M.Turner POSTAL CARS. Rebuilt by W.&A.R.R.Co. Aug-. 1879 Aug. 1879 1,400 1,400 750 750 Total .. $66,600 855 200 NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 353 a! -. r-. 1 Z C - - f V ^'f^f^f^f^f^r > r'r'r*r' r* ;; ji ? < r* f^<5 "5 , - , -*, /, WBEM PUT rpox ROAD 5 I 1 g- f I SSg, *=: ~- t c If 32. 3 = 3 '--r r-^' r < 5'5' ! ?'?' 23-222 a "3 3 a s: 5s = 1: : 2? 2S S 2S S 2S ?, ?, ?, ?i ? ?, ?, ?, ?, ?j ?, 3 i 5 ! s: -i -J -I -x ! a! *! ! S : *. i 3 ii 2: Biaiw^; ^. (t g ai w J. 222. !* 2. 2. 2. ;. 2. SS^SnCSSSS S " '? K'K'W'K' " * n'S'w' w' S J5 n'S'K * r-J-J-^r-S-r- -=-r-2 = = = =r^-='='=s--=-='='22 = 2I*g222 ' aw^jq I" .T f*" f*f*J*J*f*B B* B BB B BB ; B < I I ! ! ! 33 = 333333 ;:: 2.^^^::::^*::::: 2.272.2.2.2.2.2.2. E- = ' ^7 n * * **** P M V.I. V>i COCOCO i\'iin\m\ 23 354 ROLLING STOCK LEASED WITH W. & A. BRANCH List of the 456 Box Cars received from the State of Georgia by the Nashville, Chattanooga <5z St. Louis Railway (Lessee), December 27, 1890. NUMBER. 11 2228 2662 3424 3494 3661 12630 12916 12 2230 2663 3425 3495 3662 12631 12917 15 2231 2664 3426 3496 3663 12633 12918 23 2232 2665 3427 3498 3664 12634 12919 51 2233 2666 3428 3499 3665 12636 12920 54 2234 2667 3429 3600 3667 12637 12921 74 2236 2668 3430 3602 3668 12638 12923 85 2238 2669 3431 3603 3669 12639 12924 87 2242 2671 3432 3604 3670 12640 12925 109 2243 2672 3433 3605 3671 12641 12926 145 2244 2673 3434 3606 3672 12642 12927 185 2245 2674 3435 3607 3674 12643 12928 215 2246 2675 3436 3608 3675 12645 12929 216 2247 2676 3438 3609 3676 12647 12930 228 2248 2677 3439 3610 3678 12869 12931 251 2249 2678 3440 3611 3679 12870 12932 269 2250 2679 3441 3612 3680 12871 12933 272 2253 2680 3442 3613 3682 12872 12934 291 2254 2681 3443 3614 3683 12873 12935 295 2256 2682 3444 3615 3685 12874 12936 297 2257 2683 3445 3616 3686 12875 12937 300 2259 2684 3448 3618 3688 12876 12938 331 2260 2685 3450 3619 3690 12877 12939 337 2261 2686 3451 3620 3691 12878 12940 338 2262 2687 3452 3622 3692 12879 12941 343 2265 2688 3453 3624 3693 12880 12942 390 2267 2689 3455 3626 3694 12881 12943 396 2268 2690 3456 3627 3685 12882 12944 401 2269 2691 3457 3628 3699 12883 12945 418 2270 2693 3458 3629 12600 12884 12946 4-34 2272 2694 3459 3630 12601 12885 12947 428 2275 2695 3460 3631 12602 12887 12948 439 2278 2696 3461 3632 12603 12888 12949 453 2279 2697 3462 3634 12604 12889 12951 464 2281 2698 3463 3635 12605 12890 12952 471 2283 2699 3466 3636 12606 12891 12953 473 2284 3400 3467 3637 12607 12892 12954 484 2285 3401 3468 3638 12608 12893 12955 492 2288 3402 3470 3639 12609 12894 12956 506 2289 3403 3471 3640 12610 12895 12957 515 2292 3404 3472 3641 12611 1 2896 12959 535 2294 3405 3473 3642 12612 12897 12960 561 2295 3406 3474 3643 12613 12898 12961 566 2296 3407 3475 3644 12614 12900 12962 2200 2297 3408 3476 3645 12616 12901 12963 2202 2299 3409 3477 3646 12617 1 2902 12964 2205 2650 3411 3478 3647 12618 12903 12965 2206 2652 3412 3479 3648 12619 12904 12968 2211 2653 3414 3480 3649 12620 1 2905 12969 2213 2654 3415 3481 3651 12622 12906 12970 2216 2655 3417 3482 3653 12623 12907 12971 2219 2656 3418 3484 3654 12624 12908 12972 oooo 2657 3419 3486 3656 12625 12909 12973 2224 2658 3420 3487 3657 12626 12910 12974 2225 2659 3421 3488 3658 12627 12911 12976 2226 2660 3422 3491 3659 12628 12912 12977 2227 2661 3423 3492 3660 1 2629 12913 NASHVILLE, CHATTANOCKM A ST. LOUIS RAILWAY. 355 List of 1 2 Coal and 100 Flat Cars received from the State of Georgia by the Nashville, Chattanooga if St. Louis Railway (Lessee). Nl'MBEK. 1404 1405 1409 141:.' 1415 1419 1420 14-"J 1436 1432 1435 1437 1443 1444 1448 1449 145-,' 1453 1456 1462 1463 1464 1466 1468 1471 1472 1473 1474 1475 1477 1480 1482 1483 1484 14S8 1489 1490 1491 1495 1496 1498 1499 1503 1505 1508 1511 1513 1515 1517 1519 1521 1522 1523 1524 1530 15,39 1540 1541 1542 1543 1547 1548 1550 1552 1553 1556 1557 1559 1561 1563 1567 1573 1577 l. r ,7'.t 1580 1581 1584 1585 1587 1589 1592 1598 1599 1601 1606 16C8 1611 1616 1619 1622 1623 1627 1630 1634 1636 1638 1640 1642 1647 1653 1657 1665 1670 1672 1674 1677 1678 1681 1682 1684 1685 1688 1689 1690 1695 1606 1697 1698 1703 1707 1710 1711 1713 1714 1715 1718 1719 1720 1721 1722 1724 1726 1729 1730 1731 1732 1733 1734 1736 1737 1738 1739 1740 1741 1742 1744 1745 1746 1747 1748 1749 1750 1751 1754 :,7 M 80 51 65 1766 1767 1769 1771 1773 1776 1777 1778 1779 1783 1784 1786 1788 1789 1800 1801 1802 1803 1807 1808 1810 1811 1813 1816 1817 1819 1820 1821 1823 1828 1830 1832 1833 1835 1837 1838 1839 1844 1846 1849 1853 1854 1855 1857 1858 1860 1863 1865 1870 1871 1877 :87 1885 1887 1888 1889 1890 1893 1897 1905 1924 List of 1 5 Stock Cars received from the State of Georgia by the Nashville. Chattanooga & St. Louis Railway (Lessee). NUMBEK. 1330 1331 1332 1338 1339 1342 1301 1315 1320 1304 1316 1327 1307 1319 1328 One Wrecking Car. List of Machine Shop Tools to be Delivered to the State by the Lessees. No. 2. 1 single head driving wheel lathe. 3. 1 axle lathe. 33-inch swing, 13-foot bed, back gear, with tools. 4. 1 engine lathe, 20-inch swing, 14-foot bed, back gear, with tools. 5. 1 engine lathe, 20-inch swing, 8%-foot bed, back gear, with tools. 6. 1 engine lathe, 20-inch swing, 8%-foot bed, back gear, with tools. 7. 1 engine lathe. 16-inch swing, 7 . -foot bed, back gear, with tools. 8. 1 engine lathe, 12-inch swing, 5-foot bed. (Never used by lessees.) 356 ROLLING STOCK LEASED WITH W. & A. BRANCH No. 1. 1 planer 36 inches wide, 12 feet long-, 3 heads, all tools; substi- tuted for No. I screw planing 1 machine, condemned. 2. 1 compound planer, with chuck, table, and tools. 3. 1 shaping machine, complete, and tools. 4. 1 shaping machine, complete, and tools. 1 boring mill. 1 boring mill, with endless chain twist. 1 grindstone, shaft and pulley, complete. 1 endless chain twist, lift 2,500 pounds. 1 endless chain twist, lift 500 pounds. 1 pattern maker's lathe. 12 vises, 9 old and 3 new, in place of original 9. No. 1. 1 drill press, complete, back gear, all tools. 3. 1 drill press, complete, 20-inch. Lot of reamers, taps and dies, rose bits, counter sinks, etc. 5 hydraiilic jacks, 2 of 20 tons, 3 of 15 tons lift. 1 bolt cutter, with full set of taps and dies, cut ) to 1 ^ inches. 176 feet cold rolled shafting-. 46 pulleys. 18 hangers. 16 coupling's. In Blacksmith Shop of Machine Department. 6 Forges, complete, with tools, etc. 4 Castiron forms. 7 Anvils. 1 Vise. 1 Blower. 1 Spring furnace, oil tub, etc. Coppersmith Tools. 1 Coppersmith forge. 1 Set stocks and dies. 1 Bench vise, 6-inch jaw. 3 Mandrels. 1 Pot. Boiler Shop Tools. 1 Boiler shears. 2 Boiler punches, No. 5. 1 Boiler rolls. 1 Forg-e' with tools. 1 Vise, 8-inch jaw (box). Paint Shop. 1 Paint grinder. Machinery, etc., in Car Department. 1 engine and boiler, 40-horse power, with pump. 2 wood planers. 2 saw tables. 6 circular saws. 1 tenon machine. 2 pairs scales. 1 mortise machine. 1 gumming machine. 1 axle lathe. 1 car-wheel boring mill. 1 slide lathe. 1 sash sticker. 1 150-ton hydraulic wheel press, substituted for old wheel press condemned and for deterioration of machinery (this press costal, 100). 1 grindstone. 1 wood lathe. 1 jigsaw. 2 15-ton jacks. 7 screw jacks. 1 old 100-ton hydraulic wheel press. 3 stoves. 12 work benches (15 originally). 2 hand cars. 2 wheelbarrows. 1 drill press. Lot of drills, rose bits, bolt cutters, taps, and hubs. 1 cut-off saw. 2 patent pul- leys. 1 fan. 1 grindstone, shaft, etc. 1 pair scales. 3 vises. 2 ladders. 1 stove. Original shafting and pulleys (to which add new shafting, hangers, pulleys, and couplings bought by lessees). 1 nut machine. Lot of old taps. 5 anvils (originally 8). 6 sledges (originally 10). N \-ll\II.I.K. CHATTANOOGA A KT. LOflS RAILWAY. 357 6 forges and tools complete for 4 forges. Full set of turner's tools. Lot of assorted paints and paint brushes. 1 paint mill. > putty knives. 1 old stove. 1 old paint mill. List of Furniture in the General Offices of the Western & Atlantic Railroad at Atlanta, to be Delivered to the State. 22 desks. 14 small tables. 7 large tables. 6 pigeon-hole cases. 4 wardrobes, ft iron safes. 8 book-racks and cases. 1 clock. 7 copying presses. 47 chairs. 3 water coolers. 9 water buckets. 7 coal scuttles. 4 coal shovels. 2 coal tongs. 7 waste baskets. 37 inkstands. 2 call bells. 13 hand stamps. 8 wash basins. 4 mirrors. 19 spittoons. 8 R. K. maps. 4 high stools. ' 1 stove. 5 feather dusters. 3 settees. Furniture in Office of Master Mechanic, Atlanta. 1 foreman's desk and stool. 1 water cooler. 1 letter press. 1 small wooden case. 1 large desk. 1 small desk. 2 stools. 1 table. 1 cup- board. 1 dork. 1 chair. 1 desk for master mechanic. 1 steam gauge tester. 1 coal scuttle. 3 pokers. 1 wash basin, v frames for state- ments. 1 broom. 1 duster. Last of Office Furniture at Stations on Western & Atlantic Railroad to be Delivered to the State. Smynui. 1 desk, 1 scales, 1 table. 1 truck. Marietta. 2 desks, ] local ticket case, 1 through ticket case, 2 tables, 12 tables, 1 settee, 1 clock, 1 mirror, 1 iron safe, 1 scales, 4 trucks. Kennexaw. 1 desk, 3 chairs, 1 scales, 1 small ticket case. AckworUi. 1 desk, 6 chairs, 1 settee, 1 clock, 1 small table. 1 small ticket case, 1 platform scales, 1 truck. Alliitwnut.l desk, 2 chairs, 1 small ticket case, 2 trucks (only one on hand), 1 small safe (not on hand). CnrternvUle. 1 desk, 5 chairs, 1 table, 1 settee, 1 ticket case, 1 scales, 2 trucks. StegallH (now Einemon). 4 chairs, 1 desk, 1 truck, 1 scales. f.Vw*. 1 desk, 5 chairs, 1 table. 1 settee, 1 ticket case, 1 scales, 2 trucks. l\'iti>i*tn. 2 desks, 2 small tables, 1 small safe, 1 local ticket case, 6 chairs, 1 clock, 1 mirror, 1 through ticket case, 1 platform scales, 3 trucks. Adntntvllle. 1 desk, 1 settee, 1 scales, 2 chairs (originally 6), 1 clock. 2 trucks, 1 local ticket case. fVii/ioMii. 1 desk, 1 clock, 6 chairs, 1 settee, 1 table, 1 local ticket case, 1 scales, 2 trucks. Remtnt. 1 desk, 4 chairs, 1 small ticket case, 1 scales, 1 truck. TUtim. 1 desk, 1 ticket case, 1 scales. 1 truck. Ittiltnn. 2 desks, 1 local ticket case, 3 chairs, 1 small iron safe, 2 scales, 6 trucks. Tunnel Hill. 1 desk (short), 3 chairs (originally 0), 1 settee (short), 1 table (short), 1 mirror (short), 1 local ticket case, 1 scales (originally 2), 2 trucks. ltin(mM. 1 desk. 3 chairs (originally ft), 1 settee (short)'. 1 local ticket case, 1 small table (short), 2 trucks, 1 scales, 1 clock (short). 358 ROLLING STOCK LEASED WITH W. & A. BRANCH GniUHvUle.l local ticket case, 1 scale, 1 truck. ('Metatnuutf/u. 1 desk, 4 chairs, 1 settee (short). CVwittrtnoof/fi. 7 desks, 1 desk (warehouse), 1 case common shelves, 16 trucks, 'I tables, 1 iron safe, 1 letter press, 1 baggage truck, 1 small platform scales. 2 floor scales, 1 settee (short), 1 small ticket case, 5 common chairs (originally 12), 1 through ticket case. ATLANTA, GA., March 26, 1891. As the representative of the Nashville, Chattanooga & St. Louis Railway, the present lessee of the Western & Atlantic- Railroad, I agree to take from the State of Georgia the articles described in the inventories hereto annexed, which articles are ready to be turned over by Joseph E. Brown and E. B. Stahl- nian, receivers of the Western & Atlantic Railroad Company, to the State of Georgia; and I agree that the valuation placed upon them is correct, which valuation aggregates $33,093.60. [SIGNED.] J. W. THOMAS, President Nashville^ Chattanooga <& St. Louix Railway. MACHINE SHOP. 1 double driving wheel lathe $3,000 00 1 radial drill press ... 450 00 1 driving wheel press 900 00 7 bench vises, $5 35 00 1 14 x 20 40-horse power engine 800 00 4 cast iron stoves 20 00 1 set spiral fluted reamers 30 00 1 set twist drills 5000 1 set % taps 1 50 1 set % taps 250 1 set % taps 3 00 1 set % taps... 4 50 1 set 1-in. taps 5 00 1 set 10-thread taps. 10 00 1 wood level 1 00 1 iron level 1 25 2 40-ton hydraulic jacks, $100.. 20000 2 30-ton hydraulic jacks, $75 1 50 00 f) 15-ton hydraulic jacks, $50 30000 1 emery grinder 30 00 4 friction clutch drills 30 00 1 cylinder borer 150 00 2 steel straight edges, 30 in. long^ 8 00 2 steel straight edges, 16 in. long 16 00 Total, machine shop $6,197 75 NA8HVILLK, CHATTANOOGA 4 ST. LOUIS RAILWAY. 359 BLACKSMITH SHOP. 1 steam hammer, swedges and dies $400 00 2 crane hoist, $15 each 30 00 1 bolt header. .. 8 00 Total, blacksmith shop $438 00 COPPfcRHMITII SHOP. 3 pipe cutters $ 8 00 1 set pipe taps 8 00 1 No. f> bench vise 500 3 pair gas pipe tongs 3 00 2 pair shears 3 00 1 set chisels 2 00 1 pipe vise 5 00 4 soldering irons 2 00 2 hammers 1 00 4 monkey wrenches 2 00 2 open end wrenches 1 50 2 spanner wrenches 1 00 Total, coppersmith shop $41 00 PATTERN SHOP. 4 benches and screws $2800 1 universal shaper 25 00 1 cross-cut saw 1 50 3 open end wrenches . 1 50 3 box wrenches 2 00 3 14-in. monkey wrenches, 50c 1 50 9 12-in. hand screws 2 50 5 16-in. hand screws 350 1 lot of patterns 80000 Total, pattern shop $86500 FOt'NDKY. 2 traveling universal hoists, $35 $ 70 00 1 lot of wooden Hosts, with clamps, and one lot of iron Hosts, with clamps, weights, etc 150 00 1 wrought iron cupalo, 7,000 Ibs. capacity 100 00 1 stove _ 4 00 1 pair brass furnaces, crucibles, etc. 50 00 1 blower . . 30 00 Total, foundry $404 00 360 ROLLING STOCK LEASED WITH W. & A. BRANCH HUMP BOOM. 1 12-inch Worthington steam pump $ 50 00 1 4-inch Worthington steam pump. 35 00 1 McGowan hand or power pump 25 00 1 G-jaw bench vise . 5 00 1 set stocks and dies 10 00 1 pair chain tongs 2 50 2 pairs universal tongs. 3 00 1 monkey wrench 50 1 hammer 50 4 sets pump fittings, McGowan pump 8 00 1 stove.. 3 50 Total, pump room $143 00 PAINT SHOP. 2 50-gallon cans. $ 2 00 1 40-gallon can 3 00 30 paint buckets 2 00 22 paintbrushes 12 00 1 duster 50 2 putty knives 50 1 pallet knife 25 4 varnish brushes 2 00 1 marble slab 50 5 3-gallon zinc buckets 75 1 paint press ._ l 50 3 1-gallon cans 75 3 brush cans 50 6 step ladders, 75c 4 50 1 stove.. 5 00 Total, paint shop $41 25 CAB SHOPS. 1 band saw machine $ 15000 1 sand papering machine 75 00 1 Wood worth planer and matcher 400 00 1 horizontal boring machine 150 00 1 double end axle lathe 800 00 1 air pump and piping 50 00 1 steam pump in engine room * 60 00 1 Western differential pulley block. 10 00 1 portable forge ._ 10 00 4 1 0-ton hydraulic jacks 100 00 Total, car shops $1, 805 00 OFFICE FURNITURE. Atlanta General Offices. 1 iron safe, $175; 4 clocks, $65; 9 stoves, $35. Total, $275. XA8HMI.I.K, CHATTANOOGA A ST. LOUIS RAILWAY. 361 l>< i>t. I .scale, 81.">; 1 water bucket and clipper, 40c. ; 1 lan- tern, 35c. Total, 815.75. Kingnton 7>c/*ot. 3 settees, 37.50; 5 benches, $3.25; 1 office lamp, $2; 2 bracket lamps, 82.50; 1 platform scale, $15; 2 baggage trucks, 830; 2 water buckets, 81j'3 lanterns, 81. Total, 861.75. A'luii-xriiii-. 2 lamps, 82.50; 2 lanterns, 70c. ; 1 ticket stamp, 84; 1 round table, 82; 1 car seals. 81.50; 2 oil cans. Total, 811.20. <'c. ; 2 railroad lanterns, 70c.; 1 ticket stamp, 84. 810.95. />f//(o?u 3 desks. 818; 1 ticket case, 825. Total, 843. GraymHlle. 1 desk, 84; 3 chairs, 82.25; 1 stool, 81.50; 1 ticket stamp, $4; 1 bucket and dipper, 40c; 1 coal scuttle, 25c. Total, 812.40. Total, line of road, 8476.45. BKCAPITUI.ATION. Machine shops 8 6, 197 75 Blacksmith shop 438 00 Coppersmith shop 41 50 Pattern shop 865 00 Foundry 404 00 Pump room 14300 PaintShop.. 41 25 Car shop 1,805 00 Line of road. 476 45 Total Material and supplies as follows: 810,412 45 Car department 8 8,822 84 Motive power department 4.585 70 Road department 4,656 10 Storehouse 4,616 51 RECAPITULATION. 833,093 60 DESCRIPTION. Nl'MBEH. VALUE BY STATE. VAI.I-E BT LEH8EE. Locomotives . 45 8 161,526 00 8 109.300 00 Passenger, baggage, postal cars . . 32 6>,600 OO 55,200 00 Box cars 455 91,910 00 68,250 00 Coal cars ........... 120 21,000 00 15,000 00 Flat cars . ... 100 16,000 00 10,000 00 Stock cars 1.1 4.005 00 2,250 00 Tools and supplies 33,093 60 33,093 60 Total 8 394.134 60 8 293,093 60 362 ACTS OF GEORGIA RELATING TO W. A A. BRANCH ACTS GEORGIA RELATING TO WESTERN & ATLANTIC RAILROAD. [There are many acts of Georgia relating to the road, but only those are here inserted that will be of possible use to the Nashville, Chattanooga A St. Louis Railway.] 1. Pillars of Kennesaw house, in Marietta, allowed to rest on right of way, how. SECTION 1. The General Assembly enact*, That from and after the passage of this act, the superintendent of the Western & Atlantic Railroad be, and he is hereby empowered, and he is hereby directed, to grant to the proprietors of the Kennesaw house, in the city of Marietta, the right to rest the pillars of the veranda to said house, upon the west side thereof, upon the east side of the right of way of said Western & Atlantic Railroad; Provided, That said pillars shall not oc- cupy a space of more than three feet in width of said right of way; And provided further, That should the necessities of the Western & Atlantic Railroad require the space of ground so occupied, the same shall be taken on the application of the superintendent of said road, notice thereof being given three months previous, by the superintendent of the road, to the pro- prietor or lessee of the Kennesaw house. SEC. 2. Repeals conflicting laws. (Acts Georgia 1870, p. 377; approved October 25, 1870.) 2. Cincinnati Southern Railroad allowed to run on right of way of Western & Atlantic, how. SECTION 1. Be it enacted by the General Assembly of Georgia, That, whereas, the city of Cincinnati has nearly completed the Cincinnati Southern Railroad, a grand trunk line which will be of great benefit to the State of Georgia, forming a most important feeder, and practically an extension of the Western & Atlantic Railroad, which is the property of the state, and giving to our commerce the advantage of a direct and admirable connection with the railway system of the North and West; and, WHEREAS, Said railroad reaches the Western & Atlantic Rail- road at Boyce's station, and for the most of the distance to the termini of the two railroads in Chattanooga, their routes run NASHVILLE, CHATTANOOGA * ST. LOUIS RAILWAY. 363 parallel to and adjoining each other, a distance of about 6ve miles; and, WHKHKAS, It is to the advantage of both railroads to lie able to locate their tracks and works close together, thus saving ex- pense to one in construction, and to both in maintaining the road- bed and facilitating railroad operations, and giving to l>oth rail- roads the advantage of a stronger and tinner road I red, through a route subject to overflow by floods in the Tennessee river There is hereby granted to the trustees of the Cincinnati Southern Railroad, for the use of said railroad, the use of that portion of the right of way of the Western & Atlantic Railroad between Boyce's station, Tennessee, and the Chattanooga, Ten- essee, terminus, that lies west ward ly of a line running parallel with, and nine and a half feet westerly from the center of the track of the Western & Atlantic Railroad, so as to admit of laying track, if desired, near enough to the track of the Western & Atlantic Railroad to leave the distance between the centers of the tracks fourteen feet, and between the nearest rails of the two railroads nine feet; Provided nlir>ay>t, That this grant is sub- ject to the consent and approval of the lessees of the Western & Atlantic Railroad, as to the term of their lease; Provided further, That the grade adopted by the said Cincinnati Southern Railroad, along and over the aforegranted right of way, shall always be the same as that of the Western & Atlantic Railroad. SEC. 2. All acts and parts of acts inconsistent with this act are hereby repealed. (Acts Georgia, 1878-79, p. 218; approved October 8, 18?}).) The Cincinnati Southern Railway is now leased and operated by the Cincinnati. New Orleans & Texas Pacific Railway. 3. Dalton & Gadsden Railroad Company allowed to build on right of way of Western & Atlantic Railroad, how. SECTION 1 . Rr it further enacted, That his excellency the governor, be, and he is hereby, authorized to grant to the said Dalton & (iadsden Railroad Company the right to construct and build their railroad, for a short distance, upon the right of way of the Western & Atlantic Railroad; l^rwided, The said Dalton & Gadsden Railroad grant similar privileges to the Western & 364 ACTS OF GEORGIA RELATING TO W. A A. BRANCH Atlantic Railroad; And provided further, That such grant to said Dalton & Gadsden Railroad Company be not, in the opinion of the governor, incompatible with the public interests. SEC. 2. Repeals conflicting laws. (Acts Ga., 1859, p. 313; approved December 14, 1859.) This road subsequently changed its name to Dalton & Jacksonville Railroad. 4. Georgia Western Railroad Company and Polk State Quarry Railroad Company authorized to build on right of way of Western & Atlantic Railroad, how. SEC. 2. That his excellency the governor, be, and he is hereby, authorized to grant to the Georgia Western Railroad Company the right to construct and build their railroad on the right of way of the Western & Atlantic Railroad within and adjacent to the city of Atlanta; or, if expedient, to any dis- tance east of the Chattahoochee river, on the same conditions as the grant to the Dalton & Gadsden Railroad Company em- braced in an act entitled "An act to authorize the governor to grant certain rights and privileges to the Dalton & Gadsden Railroad Company." (Approved December 14, 1859.) SEC. 3. That his excellency the governor, be, and he is hereby, authorized to grant to the Polk State Quarry Railroad Company the right to construct and build their railroad on the right of way of the Western & Atlantic Railroad Company within and adjacent to the city of Marietta; or, if expedient, to any distance east of the Kennesaw mountain, on the same con- ditions as the grant to the Dalton & Gadsden Railroad Com- pany (approved December 14, 1859); Provided, The privileges of the right of way granted by this act shall not extend beyond one mile from depot in Atlanta and Marietta, and upon the said roads paying so much for the said right of way as the governor may deem right and proper for the interests of the state. (Acts Ga., 1860, p. 192; assented to December 20, 1860.) 5. G. W. Keith authorized to run mill race under right of way of Western & Atlantic Railroad at a point one mile south of Dalton. WHEREAS, G. W. Keith is the owner of a lot of land, num- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 365 ber two hundred and seventy-seven (277), in the twelfth (12th) district of the third (3d) section of Whitfield county, Georgia; and. \YIIEKEAS, The Western & Atlantic Railroad runs through said lot of land, and owns the right to do so; and, WHEKKAS, Said Keith owns a valuable mill shoal near the right of way of said railroad; and, WIIEKEAS, It is necessary, in order to utilize said water power, to run a plank race under the trestle bridge of said road; therefore, SECTION 1. Be it enacted by the General Aatu'inbly of the Sf,if,' of Georgia, That said G. W. Keith be allowed to run a plank race, l>eginning west of the Western & Atlantic Railroad, running in a southeasterly direction, under a trestle bridge of said railroad where it crosses a creek about one mile south of Dalton, Ga. ; Provided, It can be done without injury to said railroad; And provided further, That he procures the written consent of the president of the Western & Atlantic Railroad Company to build said race; Provided further, That said plank race shall be discontinued whenever requested by the presi- dent of the Western & Atlantic Railroad Company, or by the governor of the State of Georgia. SEC. 2. Repeals conflicting laws. (Acts Ga., 1877, p. 354; approved February 26, 1877.) 6. Gainesville & Western Railroad Company authorized to cross Western & Atlantic Railroad. SEC. 2. ... operate a railroad from the city of Gaines- ville, in Hall county, in a westerly direction through the coun- ties of Hall, Lumpkin, Dawson, Forsyth, Gilmer, Pickens, Cherokee, Cobb, Paulding, Bartow, Whit- tield or Gordon, crossing the Western & Atlantic Railroad and extending to some point on the East Tennessee, Virginia & Georgia Railroad . . . (Acts Ga., 1884-5, p. 249; ap- proved October 13, 1885.) There were no terms or conditions imposed as to crossing in act. 306 ACTS OF GEORGIA RELATING TO W. & A. BRANCH 7. Marietta & North Georgia Railroad authorized to build on right of way of Western & Atlantic Railroad from Ma- rietta to marble mills, how. WHEREAS, The Marietta & North Georgia Railroad Company is an important feeder to the Western & Atlantic Railroad; and, WHEREAS, It is and has been necessary for said Marietta & North Georgia Railroad to use (by and with the consent of the lessees of the Western & Atlantic Railroad) a portion of the right of way of the Western & Atlantic Railroad, in order to deliver its freight and passengers to said Western & Atlantic Railroad Company, and is still necessary for the purpose of the same; therefore, be it Resolved by the General Assembly of the State of Geory'm, That the charter of the said Marietta & North Georgia Railroad Company be so amended as to authorize and em- Charter Of M. . , ,, . A -VT , ., & N. Ga. R. R. power said Marietta & North Georgia Railroad amended. Company to lay out and construct their road from the city of Marietta, in the county of Cobb, to the marble mills north of said city of Marietta, upon the right of way of the Western & Atlantic Railroad, including that portion now occu- pied by the said Marietta & North Georgia Rail- way author- road within the limits of the citv of Marietta, and lied. to perpetually use and occupy the same for railroad purposes; Prwided, That said Marietta & North Georgia Rail- road Company shall in no way interfere with tracks Proviso. or right of way now in use by said Western & Atlantic Railroad; Provided further, That this shall not apply to more than fifteen (15) feet on the extreme eastern edge or side of said right of way, and that due compensa- Compensation. l tion shall be paid for the same to the state. Ihis shall be submitted to arbitration, one arbitrator to be selected by the governor and one by said Marietta & North Georgia Railroad Company, and, in case they cannot agree, said arbi- trators to select a third, whose decision shall be final; Provided further, That the consent of the present lessees of the Western & Atlantic Railroad Company be first obtained to the use of said right of way as aforesaid, and that they consent that any NASHMI.I.K, CHATTANOOGA A ST. IX)U18 RAILWAY. 367 and all condensation paid to the state therefor shall in no case accrue to them by any contract or lease now in force between them and the state. Be it further remtlved by the authority afotwald, That all laws and parts of laws in conflict with this resolution l>e, and the same are hereby, repealed. (Acts Ga., 1884-85, p. 677 (resolution); approved October 9, 1885.) The Marietta fc North (leorgia Railroad has recently been sold under decree of the United States Circuit Court, and purchased by the Atlanta, Knoxville fc Northern Construction Company, which has subsequently been incorporated as the Atlanta, Knoxville & Northern Railway Com- pany- 8. Georgia Overland Railway & Improvement Company au- thorized to cross Western & Atlantic Railroad. SEC. 2. . . . to connect with the railroad systems of Alabama, and the steamboat systems of the Coosa river, from the said available point on the boundary line, in a northeasterly direction through either or all of the counties of Floyd, Chat- tooga, Walker, (iordon, Whitfield, Murray, Gilmer, Fannin, and Union, to the most available point on the boundary line between the states of Georgia and Tennessee or North Carolina, in the direction of the town of Murphy, in the State of North Car- olina, crossing the Kast Tennessee, Virginia & Georgia Railroad and the Western & Atlantic Railroad at or near the city of Dai- ton, in Whittield county; with power also to the said company to survey, lay out, contract, equip, maintain, and operate one or more branches from any convenient point or points along the line of said railroad to any towns, mines, factories, etc., within the counties named in this charter. . . . (Acts Ga., 1888, p. 173; approved Decemlxjr 26, 1888.) There were no conditions specified in the above act as to terms of crossing. 9. Lessees of Western & Atlantic Railroad authorized to con- struct side tracks across certain roads, when and how. The General Assembly of Georgia do enact as follows: SECTION 1. Re it enacted, That whenever the lessees of the Western & Atlantic Railroad shall desire, or whenever it is nec- essary to reach the patrons of said road, said lessees l>e, and ACTS OF GEORGIA RELATING TO W. & A. BRANCH they are hereby, authorized, at their own expense, to build and construct side tracks across the lines of other roads, when- ever such other roads occupy a part of such right of way of the Western & Atlantic Railroad. SEC. 2. Be it further enacted, That all laws and parts of laws in conflict herewith be, and the same are hereby, repealed. (Acts Ga., 1889, p. 351; approved November 11, 1889.) 10. Catoosa Springs Company's railroad authorized to be built on right of way of Western & Atlantic Railroad from Ringgold to bridge across Chickamauga creek, how. SECTION 1. Be it enacted by the General Assembly of the State of Georgia, That the act incorporating the Catoosa Springs Company, with power to construct a railroad, ap- proved the twenty-fourth day of October, 1887, be, and the same is hereby, amended so as to authorize said company to use a part of the right of way of the Western & Atlantic Rail- road, between some point at or near the depot of the Western & Atlantic Railroad at Ringgold, Catoosa county, and a point at or near the first railroad bridge across Chickamauga creek, on said railroad, south of Ringgold, for the purpose of con- structing and laying the track of the railroad authorized to be constructed and built by the Catoosa Springs Company, as pro- Proviso as to vided in the original act incorporating such company; w. & A. R. R. Provided, Nothing in this act contained shall be so 7 O construed as to give said company the right to so construct and lay the track of said railroad as will in any manner obstruct or interfere with the track of the Western & Atlantic Railroad, or with any repairs that maj be required to be made thereon at any time hereafter; And provided further, The right to use a part of the right of way of the Western & Atlantic Railroad, between the depot at Ringgold and the first railroad bridge across Chickamauga creek, shall be limited to the use of not more than one-half mile of said right of way in a continuous line; Provided further, That, before the said company shall have the authority to use any part of the right of way or property of the Western & Atlantic Railroad, just and adequate compensation shall be first paid to the state. NAS1IV ll.I.K. CHATTANOOGA & ST. LOUIS RAILWAY. 369 Si :c. 2. Be it furtlier enacted. That in order to determine the <|iic-4ion of what is just and adequate compensation to be l>aid to the state, the provisos of the act incorporating the said company as to condemnation shall apply, the gov- Governor to . . represent ernor to represent the state in the selection of as- state. sessors; and the right of appeal from the award of the assess- ors shall also l>e as is provided in said act, the governor to represent the state for that purpose also; Provided^ That in no event shall any part of the right of way of the Western & Atlantic Railroad he condemned where it will in any way inter- fere with the perfect operation of said Western & Atlantic Railroad; J'/'ovided, That this company shall pay to the legal authorities in control of the Western & Atlantic Railroad, or the State of Georgia, a just and reasonable compensation an- nually so long as they may use said right of way; Provided further, That the Catoosa Springs Railroad Company shall not occupy the right of way so as to prevent the laying of a double track l>etween Catoosa station and the town of Ringgold, the compensation for the use of right of way to be determined by Arbitration. SKC. 3. Be it further enacted, That all laws and parts of laws in conflict with this act be, and the same are hereby, repealed. (Acts Ga. , 1889, p. 442; approved November 13, 1889.) The Catoosa Spring's Company was incorporated October 24, 1887, by act of legislature, which granted them the power to construct a railroad on the plan of a street or tram railway, from the right of way of the Western & Atlantic Railroad, in Catoosa county, to Catoosa Springs, in the same aounty. 11. Georgia, Alabama & Carolina Railroad Company author- ized to cross Western & Atlantic Railroad. SEC. 2. Be it further enacted, That said corporation shall have power and authority to survey, lay out, construct, and equip, and to own, operate, and maintain, a railroad from some point on the dividing line between the States of Alabama and Georgia north of the C/oosa river, or between the city of .Gads- den and the Tennessee State line, thence through the State of Georgia, crossing the Western & Atlantic Railroad at some 24 370 RESOLUTIONS OF GEORGIA RELATING TO W. & A. BRANCH point between the towns of Dalton and Cartersville, with the right to pass through and enter any of the counties, towns, and cities, etc (Acts Ga., 1889, p. 409; approved No- vember 13, 1889.) There were no conditions specified as to crossing in the above act. 12. Fail-mount Valley Railroad not to run nearer than ten miles of Western & Atlantic Railroad, when. SEC. 2. Be it further enacted, That said company is hereby authorized and empowered to survey, lay out, construct, and build a railroad from the city of Cartersville (or such other point as they may select on the Western & Atlantic Railroad), in the county of Bartow, through the counties of Bartow, Gor- don, Murray, and Fannin, to the state line between Georgia and Tennessee; Provided, That after the first ten miles said road shall not run nearer than ten miles to the Western & At- lantic Railroad. . . . (Acts Georgia 1889, p. 384; ap- proved November 4, 1889.) RESOLUTIONS OF GEORGIA RELATING TO WESTERN & ATLANTIC RAILROAD. 1. Resolution directing governor to ascertain on what terms the road can be extended to the Tennessee river in the state of Tennessee. (Acts Georgia, 1836, Pam. 3.) '2. Req nesting the governor to dispatch a special agent to Tennessee to negotiate in behalf of the state, for the purpose of authorizing the extension of the road to Tennessee river. (Acts Georgia, 1837, Pam. 270.) 3. Offering to secure similar privileges to any road in Ten- nessee seeking to connect with Western & Atlantic Railroad in Georgia; Provided, The State of Tennessee grants the privilege of extending that road to Tennessee river. (Acts Georgia, 1837, Pam. 271.) -L Approving the Hiwassee Railroad Company's connection with the state road, and directing an experimental survey by Red Clay to the Tennessee river. (Acts Georgia, 1838, Pam. 281, 282, 283, 2S4.) The n^m^ of the Hiwassee Railroad Company was changed by Acts Tennessee. 1847-48. ch. 169, p. 272, sec. 3. to the East Tennessee & Georgia Railroad Company. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 371 ACTS OF TENNESSEE IN RELATION TO WEST- ERN & ATLANTIC RAILROAD. 1. Georgia granted rights of Nashville & Chattanooga Rail- road Company in Tennessee in building Western & At- lantic Railroad. Be it enacted by the General Assembly of the State of Tennes- see, That all the rights, privileges, and immunities, with the same restrictions which are given and granted to the Nashville & Chattanooga Railroad Company by the act of the general assembly of this state incorporating said company, passed December 11, 1845, are, so far as they are applicable, hereby given to and conferred upon the State of Georgia, to be enjoyed and exercised by that state in the construction of that part of the Western & Atlantic Railroad lying in Hamilton county, Tennessee, and in the management of its business. (Acts Tenn., 1847-8, ch. 195, p. 330; passed February 3, 1848.) 2. Georgia granted rights of Hiwassee Railroad Company in Tennessee in building Western & Atlantic Railroad. SECTION 1. B- it enacted by tfte General Assembly of the State of Tennessee, That the State of Georgia shall be allowed the privilege of making every necessary recognizance and sur- vey for the purpose of ascertaining the most eligible route for the extension of her Western & Atlantic Railroad from the Georgia line to some point on the eastern margin of the Ten- nessee river. SEC. 2. Re It further enacted, That as soon as said route and point shall be ascertained, the State of Georgia shall be allowed the right of way for the extension and construction of her said railroad, from the Georgia line to the Tennessee river, and that she shall be entitled to all privileges, rights, and immunities (except the subscription on the part of Tennessee), and be sub- ject to the same restrictions, as far as they are applicable, as are granted, made, and prescribed for the l>enefit, government, and direction of the Hiwassee Railroad Company. SEC. 3. And be it farther enacted, That the foregoing rights and privileges are conferred upon the State of Georgia on con- 372 ACTS OF TENNESSEE RELATING TO W. & A. BRANCH dition that, whenever application is made, she will grant and concede similar ones, and to as great an extent, to the State of Tennessee or her incorporated companies. (Passed January 24, 1838.) For rights, privileges, and immunities of the Hiwassee Railroad, see charter of that company on p. 63 herein. 3. Further time given to complete Western & Atlantic Rail- road. Be it enacted by tie General Assembly of the State of Tennessee, That the further time of two 3'ears, from the first day of Jan- uary next, be given to the State of Georgia to complete the Western & Atlantic Railroad of that state to Chattanooga, on the Tennessee river. (Acts Tenn., 1847-48, ch. 14, p. 43; passed October 18, 1847.) 3. Memorial of Tennessee legislature to Georgia legislature in regard to Western & Atlantic Railroad and comity between states. The preservation of the union of these states is an object of the highest importance, and demands the most profound con- sideration of every patriot and statesman. So far as any for- eign or extraneous influences, calculated or intended to affect O 7 its permanence or impair its integrity, are concerned, we have nothing to fear; so long as a unity of sentiment on the subject of our national honor and national rights is cherished, and har- mony of feeling is maintained at home, we have nothing to fear from the enemies of our institutions, though the} r come in the imposing form of the combined powers of earth. Harmony among the states composing this great confederacy is not only essential to the advancement of all the great inter- ests of the country, but is of indispensable importance to the very existence of the union. It is therefore meet and proper that each of the states composing this great sisterhood should labor, as far as may be in their power, to avoid all just ground of complaint, and, by all honorable means, endeavor to shun everything that is calculated to produce an alienation of feeling or in any way disturb the kind and friendly relations that should exist between members of the same great family. Cherishing NASHVILLE, CHATTANOOGA * ST. LOUIS RAILWAY. 373 sentiments of this character, whenever grievances are believed to exist it is the manifest duty of the party aggrieved, in a spirit of kindness, confidence, and frankness, to state the cause of complaint. And it is equally due to the party aggrieved that the complaint should be received in the same spirit of kindness, and if, after impartial investigation, they should be found to exist, every consideration of justice, magnanimity, and patriotism demand their redress. Profoundly anxious to maintain the kindest and most amica- ble relations with our sister state of Georgia, and feeling that those kindly relations would be best promoted by a frank pre- sentation of the evils under which we labor, the general assem- bly of the State of Tennessee would respectfully suggest to the legislature of the State of Georgia the following considera- tions: It will be remembered by your honorable body that an appli- cation was made by the general assembly of your state to the legislature of this state, during the winter of 1837-8, for the privilege of extending her Western & Atlantic Railroad from the Georgia line to the margin of the Tennessee river, within the limits of Tennessee, and that certain rights, powers, priv- ileges, and immunities were granted to the said Western & Atlantic Railroad, on the express condition that similar powers, rights, privileges, and immunities should, on application, be conceded to the State of Tennessee, or her incorporated com- panies. In accordance with this agreement, during the winter of 1847, an application was made to the legislature of Georgia for a grant of the rights and privileges as stipulated in the compact, to the Hiwassee (now the East Tennessee & Georgia) Railroad Company. This application was promptly met and the pledges faithfully redeemed. The East Tennessee & Georgia Railroad Company, relying with implicit confidence on the good faith of the compact, have proceeded to construct their road through the territory of Georgia to the town of Dalton. In executing the powers thus granted to them, the East Tennessee & Georgia Railroad Com- pany have met with many difficulties, and been subjected to 374 ACTS OF TENNESSEE RELATING TO W. & A. BRANCH many annoyances and inconveniences, resulting in serious dam- ages to the company, all of which they think are in contraven- tion of the clearly expressed stipulations of the compact, and in violation of its spirit and intention. These annoyances have been many and various, resulting in delays and damages, by the institution of lawsuits, greatly to the detriment of the company, in violation of the claims of justice, and in deroga- tion of that spirit of concord, harmony, and affection that should exist, not only between the states or sovereigns in equality, but between the citizens of these sovereignties. We would, therefore, respectfully suggest to your honorable body that you cause such inquiry to be made into those alleged wrongs as justice, and a determination to maintain inviolate the plighted faith of the state, may demand. And should they be found to exist, we doubt not your readiness to apply the corrective, and make all proper amends. Having disposed of this question, you will pardon us for ad- verting to some other subjects of mutual interest, and which seem to demand our consideration. Following the noble ex- ample which you have set us and your sister states of the south, in the adoption of an enlarged and liberal system of internal improvements, by which you have erected a monument for yourselves as enduring as time, we have partaken of the same spirit and entered the field in the same race, and seek now, in the infancy of our undertakings, to establish such relations as may conduce to our common interests, and in the end redound to the honor, peace, and prosperity of all. You are doubtless aware that the citizens of this state, with such aid as the state has given them, have embarked in a system of internal im- provements of no small proportions. You are aware that sev- eral hundred miles of road are now being constructed in Tennes- see amounting, when completed, to not less than seven hundred, costing many millions of dollars, and all directed to your state road, and every mile of which must be tributary to your great lines of improvements, pouring their rich treasures into your lap, not only by largely increasing the dividends on your works, but by enlarging and multiplying your commerce to an NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 375 extent as yet undefined, and which the imagination is scarcely bold enough to conjecture. Seeing the vast community of interest springing up l>etween us, and which, if cherished and protected, must go on multi- plying and expanding to an almost unlimited extent, is it not most proper and important that we should now, in the incipi- ency of things, when but few causes of complaint exist, when no feelings of distrust have been engendered, to establish such an understanding and enter into such a comity as will forever save us from discord, and establish such ties of friendship and relationship, of social and commercial identity, as shall secure the harmony and interest of all, and establish the great prin- ciple of a reciprocity oi' kind feelings, good offices, and mutual dependence, on a basis as firm and immutable as time itself. All the various roads now being constructed in this state, and in which you have a large interest, are the property of incor- porated companies, the stock owned chiefly by individual stock- holders, and consequently liable to all the restrictions imposed by their several acts of incorporation, and amenable to all re- sponsibilities and liabilities of common carriers. These restric- tions and liabilities are conceded to l>e essential to a just and reasonable protection of the rights of persons and property. If, by negligence, inattention, incompetency of officers or agents, or negligence of any kind, the rights or interests of any of your citizens are compromised or sacrificed, the remedy is plain, and the redress easy and certain. Not so in the case of the Western & Atlantic Railroad. Thig is exclusively the property of your state. Its property and rights are vested in a sovereignty, and consequently exempt from the liabilities that attach to individuals or companies of incorporation. Should damages result to citizens of your state or ours, or any of our sister states, what remedy, what redress have we or they now but such as a sense of justice of the legislature may accord them, and which, if obtained, must be done with much delay and great expense ? Difficulties enough in many instances to amount to a denial of justice, in consequence of the inconvenience of making the application to the only source of redress, the legislative power of your state. 376 ACTS OF TENNESSEE RELATING TO W. & A. BRANCH May we not, therefore, ask that you will take such action as your sense of justice and fairness may suggest such as will place all the interests involved on a footing of equality such as will secure a faithful administration of your road, quiet all apprehensions, and give confidence and efficiency to our great enterprises ? There is but one other point to which we would call your attention and claim your earnest consideration. And that is the obstruction that exists at the Savannah river. However much may be said by the advocates of free trade between the nations of the earth, on one side, or the opponents of that sys- tem on the other; however plausible their theories may be on the one side or the other, they have nothing to do with the question under consideration. So far as a full, free, and unre- strained interchange of commodities between these states is concerned, there is no difference of opinion. In this all concur. Statesmen of all parties agree that useless, unnecessary, and voidable restrictions to the full, free, and liberal intercourse, social and commercial, between all the states of the union, is at war with the spirit of our institutions, and dangerous to its harmony and stability, and in its tendencies subversive of the great charter of our rights, and of that spirit of kindness and friendship without which the union is a mere mockery, and cannot survive the conflicts of party and the storms of passion and prejudice. Whenever obstructions necessary and unavoid- able are to be met, all will bow submissively to the burdens they impose. But when there is no such necessity, every sense of justice and equality demands their abatement. Devotion to the union, equality of rights, the peace and happiness of so- ciety, the enlarged and liberal spirit of the age, the age of pro- gression and improvement, all demand their abatement. Is not this obstruction of this character, and does it not demand your favorable consideration ? Is there any necessity for the continuance of this obstruction ? Does the interest of your state require it, and is it in accordance with the great princi- ples we profess ? If one state may erect a barrier to the free intercourse between the states, then may another and another N \SHVILLE, frJHATTAXOfMIA e paid in shajK- of dray age and tolls. The result is the same, the injus- tice the same. It may be said that an act of incorporation has l>een granted to the owners of this property, and that it would be an act of bad faith to trespass upon the rights thus vested. We do not ask or desire that the rights of states, cor- porations, or individuals shall, in the slightest degree, be vio- lated or disregarded. None would go further than we in main- taining them. We do not ask that the rights of any shall be assailed; we only ask that ours may )>e protected. If the leg- islature of your state has parted with her sovereignty and con- trol over this subject, we do not invite her to an act of bad faith. But has she done this ( We understand not. Supjxwe, how- ever, that the power to control bridges over the Savannah river for three or four miles up and down be granted to the corpora- tion of Augusta, we would not have it violated, except by con- sent or payment of an equivalent; and we cannot doubt that considerations connected with the interest of citizens of (Jeorgia, as well as those of Tennessee and Kentucky, and, in fact, the great West, most likely soon to l>e placed in connection by rail- 378 ACTS OF TENNESSEE RELATING TO W.. & A. BRANCH way improvements, will powerfully induce your honorable body to pecuniary appropriations, or some other legitimate means which may effect the desired object. Granting this right, which is alleged not to exist, none will doubt the power of your hon- orable body to grant the Georgia Railroad Company, or any other company you may choose to incorporate, the power to construct a road and build a bridge above or below the territory thus assumed to have been consecrated to the special use and benefit of the corporation of Augusta. Candor and friendship require that we should say that this question is one of great importance to the interest of our citi- zens, and that it is a cause of much and growing complaint, bod- ing no good to the commercial intercourse which we hope to see established between two states so intimately connected in every- thing that is calculated to advance our interest, honor, and prosperity. Having presented these subjects to your consider- ation, we cannot doubt that their importance will at once be obvious to you. Nor do we permit ourselves to doubt but that you will receive this communication in the same spirit of can- dor, frankness, and friendship in which it is dictated, and that your wisdom will suggest such remedies as justice may demand and the great interests involved. Resolved, That this communication be, and the same is hereby, adopted by the General Assembly of the State of Tennessee, and that James A. Whitesides be, and he is hereby, appointed a commissioner on the part of this state to communicate the same to the General Assembly of the State of Georgia, and use such efforts to secure the accomplishment of the objects contem- plated as may be in his power. Rwolved, That his excellency, the governor of Tennessee, be authorized to transmit to the commissioner, Mr. James A. Whitesides, the memorial and resolution of this legislature to the legislature of Georgia, setting forth the grievances of which the people of Tennessee complain, and request his prompt at- tention to the same. (Acts Tenn., 1851-2, p. 706, No. 6; adopted November 10, 1851.) NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 379 CHAPTER XXXII. THE ROME RAILROAD COMPANY. (Ro.MK BRANCH.) How acquired by Nashville. Chattanooga & St. Louis Rail- way. On December 31, 1896, the Koine Railroad Company, in pursuance of a resolution of its directors and stockholders, held at its principal office in Rome, Georgia, prior to the date above mentioned, sold its road, properties, rights, and fran- chises to the Nashville, Chattanooga & St. Louis Railway. The consideration paid was the sum of two hundred thousand dollars. A deed to the same was properly acknowledged and registered in the superior court of Floyd county, Georgia, in book CCC of deeds, page 96, No. 60, and in Bartow county, in book GG, pages 409-414. The deed is also set out herein in next chapter. I. Legality of the purchase of the road. The purchase of this rail- road by the Nashville, Chattanooga fe St. Louis Railway was legal under the Acts of Tennessee, 1871, ch. 69, which superseded the Acts of 1871, ch. 22. The Rome Railroad Company had no power, under its charter, to sell its road, franchises, etc., but, on December 30, 1896, it tiled with the secretary of State of Georgia a petition, under the Acts of Georgia, 1893, page 89, approved December 20, 1893, for an amendment to its charter, so as to enable it to do so. On the same day the petition was granted, and all the powers and privileges of sections 13 and 18 of an Act of Georgia, 1892, page 37, approved December 17, 1892, entitled, "An Act to carry into effect article 3, section 7, paragraph 18, of the consti- tution of this state," etc., was conferred upon it, in addition to the power to sell and convey its railroad and all its property and franchises to any railroad company. The petition and amendment is set out herein in the next chapter, and is duly registered in the secretary of state's office at Atlanta, Ga. 2. Effect of purchase in rendering the Nashville, Chattanooga & St. Louis Railway a domestic corporation of Georgia. The purchase of this road, franchises, etc., by the Nashville, Chattanooga & St. Louis Railway did not operate to incorporate the latter company in the State of Georgia. Elliott on Railroads, sec. 20; 1 Hilton (N. Y.), 62; 30 N. J. L., 473; 31 N. J. L., 531; 32 Ohio St., 468; 58 Pa. St., 26. See. however, 85 Trim. . 189. It doubtless operates to domesticate the Nashville, Chatta- nooga & St. Louis Railway, however, as to the line of the Rome Railroad, and hence no suits brought against the Nashville, Chattanooga & St. Louis Railway, growing out of the operation of this line of road, can be 380 ABSTRACT OF TITLE TO ROME BRANCH > removed to the federal court upon the ground of " nonresidence. " 74 Ga., 034, citing 60 Ga., 274; 108 U. S. R., 436; 14 Minn., 303; 43 Mich., 354; 1 Wall., 40; 12 Wall., 65, 82. See, also, 59 Ga., 263; 3 Tenn. Chy., 602; 21 Law Rep., 138; 53 Ala., 237; 9 Am. & Eng. R. R. C., 201; 76 Ga., 99; 90 Ga., 523. What franchises, etc., passed under this sale. in addition to the road and other property conveyed, the deed specifically transferred all the rights, privileges, and franchises of the Rome Railroad Company. These rights and privileges are fully set out in the charter and amendments thereto, and may be found further on in this chapter. Width Of right Of Way. The width of the right of way of this branch, as appears from the deed to the same, is nowhere less than fifty feet in width, though at many places it is much broader, as will fully appear in the deed to the same, which is set out herein in the next chapter. The charter of the Rome Railroad Company, which was formerly incorporated as the Memphis Branch Railroad & Steamboat Company of Georgia, as will be hereafter fully ex- plained, contains no clause providing for a specified width of right of way in the absence of any contract with the original landowner or in the absence of any condemnation proceedings, but section 6 thereof simply provided that ' ' the board of directors shall have power to select and take or receive as do- nation such strip or strips of land between the points selected for said road, and of such width as they may deem necessary for the construction of said road, and, in all cases in which dis- agreement may arise between individuals and corporations and the directors of the said company as to the right of way or damages to property on said strip or strips of land, it may and shall be lawful for the company to appoint a competent and disinterested freeholder, and the owner or owners of such land shall also appoint one competent and disinterested freeholder, both of whom shall be sworn by some judicial officer to do equal justice between the parties, and they shall then proceed upon the premises as a committee of arbitration and appraise- ment," etc. This being so, only the number of feet actually taken or donated at each particular point can now constitute \\-Il\ll.l.i:. CHATTANOOGA A ST. LOUIS RAILWAY. 381 ' the right of way, and to determine which the records of each county through which the road runs must be examined. The deed insures at least fifty feet throughout its entire line, how- ever. 1. Successive appropriation. For a discussion of the right and method of taking more than fifty feet for the right of way when neces- sary for railroad purposes, see Eminent Danutin, Right of irny. herein. Refer to index. 2. The right to condemn land for right of way, once exercised, is ex- hausted and not afterwards enlarged. 71 Ga., 591. :'.. Railways, under the general law, however, may take lands outside of right of way for obtaining sand. etc. 97 Ga., 107. 4. For right of this company to enjoin building on right of way, see 27 Ga., 477. See, also, Riyht of Way, herein. Refer to index. Distance built wben purchased by Nashville. Chattanooga & St. Louis Railway. The road from Rome to its intersection with the Western & Atlantic Railroad, at Kingston, had been constructed when the purchase was made. ORIGINAL CHARTER OF THE ROME RAILROAD COMPANY. [Acts Georgia, 1839. p. 105.] Preamble. WHEREAS, It would be desirable that the first practicable railroad should be constructed from the southeast- ern seaboard of the Atlantic due west; and, WHEREAS, The State of Georgia has opened a railway across the most formidable obstacles to this enterprise within her ter- ritory, and to a point distant some thirty miles from the bound- ary of Alabama; and, WHEREAS, The Coosa river may, while the railroad con- struction is finding and after, afford a fair steamboat naviga- tion. SEC. 1. Incorporation, name. Be it enacted by the Senate and House of Representatives of tlte State of Georgia, in gen- eral axMinbly liiet, and It IM hereby enacted by the authority of the Maine, That, for the purpose of completing the thirty miles of railroad still within the limits of Georgia themselves, and of encouraging others to join in the continuation of the same, in its onward course west, and for the purpose of trading by steamboats on the Coosa river, James Liddle, Andrew Miller, 382 ORIGINAL CHARTER OP THE ROME BRANCH Joseph Waters, John Smith, Daniel Irwin, Robert Ware, William Hardin, Philip Hemphill, James Hemphill, Robert Mitchell, John H. Lumpkin, Daniel R. Mitchell, James Ware, Edward Ware, James H. Rogers, and John Dawson, with all such others as may hereafter become stockholders in said com- pany, be, and they are hereby, incorporated and made a body corporate and politic, by the name and style of the Memphis Branch Railroad & Steamboat Company of Georgia, subject to the conditions, restrictions and limitations hereinafter spec- fied. 1. Name changed. By Acts Ga., 1849-50, p. 243, the name of this company was changed to the Rome Railroad Company. See act itself in next chapter. 2. Charter a public law. An act incorporating a railroad company is a public law, and need not possibly be given in evidence. 74 Ga., 509: 55 Ala., 413; 4 Pickle (Tenn.), 140; 11 Hum. (Tenn.). 219; 3 Sneed (Tenn.), 87. 3. Charter a contract. The charter of a railroad company is an in- violable contract between the state and incorporators. 62 Ga., 473, 485. See. also, notes to sec. 34 of charter of Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. This contractual relation, however, has since been impaired, if not destroyed, by the acceptance of the amend- ment under the Acts of Ga.. 1893, p. 89, authorizing the company, among other things, to sell its road. The acceptance of the amendment doubt- less brought the company within the provisions of the constitution of Georgia of 1877, which enables the state to amend the charters of all companies at pleasure. SEC. 2. General powers; by-laws, rules, etc. Be it further enacted by the authority aforesaid, That the Memphis Branch Railroad & Steamboat Company of Georgia shall have perpetual succession of members, shall be capable in law to purchase, ac- cept, hold, sell, and convey real and personal estate; that they may have a common seal, may sue and be sued, plead and be impleaded in any court of law or equity, and may, at meetings of stockholders, or by a board of directors, make all such rules and regulations or by-laws as are necessary and proper for the good of the corporation and of effecting the objects for which it is created; Provided, Such by-laws, rules and regula- tions be not repugnant to the constitution of this state and of the United States. 1. Power granted to consolidate with Memphis Branch Railroad Company, how. Hy Acts Ga., 1870, p. 360, this company was granted the power to consolidate its stock and franchises with the Memphis Branch Raih-oad Company. For terms and conditions, see act itself in NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 383 next chapter. The Memphis Branch Railroad Company was chartered by Act ermiUed to be constructed within twenty miles of the route the aforesaid company may select, and that its stock shall not be liable to any tax, duty, or imposition whatever, unless such, and no more, as is now in bank of this state. 1. Other roads within twenty miles. The above clause prohibiting the building of other railways within twenty miles of this was valid. 96 Ga., 562. See, also, 70 Ga., 694; 86 Ga., 83; see. also, notes to sec. 13 of the charter of the Nashville, Chattanooga & St. Louis Railway, ch. 1, herein. It is probable, however, that this section is now impaired, if not invalidated, by the amendment granted by the secretary of state, under the Acts of Georgia, 1893, p. 89, approved December 20. 1893, au- thorizing the company, among other things, to sell its road, for. by accepting the provisions of the act, the company may have brought itself within the provisions of the constitution of Georgia of 1877. which enables the state to amend all charters at pleasure. 2. Exemption from taxation. See 63 Ga., 473, for supreme court construction of this. This exemption, however, was also doubtless lost by applying for and obtaining the amendment from the secretary of state, as explained in the above note. SEC. 8. Directors, how chosen, qualification, voting, pow- ers. Be it further enacted by the authority aforexaid, That the affairs of the company shall be under the management of a board of directors. This Ixmrd shall l>e elected by the stock- holders from their own body. No stockholder of the company shall be eligible as a director unless he holds fifty shares of the 388 ORIGINAL CHARTER OF THE ROME BRANCH stock, either in his own name or as administrator, executor, or guardian.* In all elections the stockholders shall vote either in person or by proxy, duly authorized according to their shares, each stockholder being entitled to one vote for each share held by him. No share, however, shall entitle the holder to a vote unless the same has been transferred bona fide on the books of this company at least three months before the election. The directors shall elect a president from their own body, and the president and directors shall receive such compensation for their services as may be allowed by the owners and lawful rep- resentatives of a majority of shares of the capital stock of the institution, to be determined at the regular annual meeting of the stockholders and before the annual election of the directors. The board of directors shall be competent at all times to call an extra meeting of the stockholders, when by them deemed nec- essary, and shall have power to appoint and fix the salaries of their engineers, of a secretary and treasurer, and as manyagents afld clerks and laborers as they deem necessary and expedient for the business of said company. 1. Qualification of directors. By Acts 1847, p. 170, sec. 2, this section was amended so that, "to qualify a stockholder for a director, he shall hold twenty shares of stock in said company instead of fifty." See act itself in next chapter. 2. * By Acts Ga., 1866, p. 128, the above section was amended so as to read after the words ''or as administrator, executor, or guardian," as follows: ''Or as administrator, executor, g-uardian, or trustee." SEC. 9. Money deposited, installments. And be it further enacted by the authority aforesaid, That until a board of directors shall be organized, the amounts received on subscription for stock shall be deposited by the persons receiving such in the Western Bank of Georgia, at Rome. The board shall have power from time to time to call in such installments on the subscription as they may deem necessary for the progress and execution of the work, first giving to the stockholders, sixty days previous to the time of payment of such installment, no- tice in the Georgia Pioneer, published in Cassville, and in one of the public gazettes of Milledgeville; and in case any stock- holder refuses to pay the installment required when thus de- manded, the board shall have power to declare such shares of NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 389 stock forfeited to the use and benefit of the company. The party in default shall, however, have the right to apj>eal to the stockholders at their next regular meeting thereafter, and by consent of the owners and representatives of two-thirds of the capital stock of the institution, the previous installments which may have been paid upon the shares, offered by the board for re-subscription, as if the same had never been subscribed for. SEC. 10. Certificates of stock, annual elections, powers of directors. And be it further enacted by tJw authority aforexaid, That the persons authorized by this act to raise the capital stock of said company, or their authorized agents, shall issue certificates of stock to the subscribers at the time of subscribing, which may be exchanged for the certificates of the secretary and treasurer after the board of directors shall be organized, and authority given them for that purpose; and the evidences of debt of said company shall be binding only on the funds of said company when signed by the president and attested by the secretary and treasurer. The board of directors shall be elected annually and shall have power to fill vacancies in their own body; shall report annually on the state of the company and its affairs; but if the day of annual election should pass without any election of directors, the said corporation shall not thereby be dissolved, but it shall be lawful on another day to hold and make such election in such manner as shall be pre- scribed by the by-laws. A book of minutes of the proceedings of the stockholders and of the directors shall be kept by the secretary and treasurer, which, together with all of the books of the said company, shall be subject to the inspection of the stockholders at every meeting. SEC. 11. Company a common carrier; powers. And be it further enacted by the authority aforesaid, That the company aforesaid shall be deemed a common carrier as respects all goods, wares, merchandise, and produce intrusted to them for trans- portation, and shall have full power and authority to do and perform all and every corporate acts as are permitted or al- lowed to other companies incorporated for similar purposes. (Acts Ga., 1839, p. 105; assented to December 21, 1839.) 390 DEED TO ROME BRANCH CHAPTER XXXIII. DEED TO AND ACTS OF GEORGIA RELATING TO ROME RAIL- ROAD AND AMENDMENTS TO CHARTER OF. DEED. ROME RAILROAD COMPANY } TO Deed. V State of Georgia, Floyd County. N., C. & ST. L. RAILWAY. ) This indenture, made and entered into this, the thirty-first day of December, 1896, by and between the Rome Railroad Company, a corporation duly incorporated under the laws of the State of Georgia, party of the first part, and the Nashville, Chattanooga & St. Louis Railway, a corporation duly incorpo- rated under the laws of the State of Tennessee, and with cor- porate rights in the State of Georgia and other states, party of the second part, witnesseth; that, WHEREAS, The said party of the first part is desirous of sell- ing its railroad and property and franchises of every kind, and said party of the second part is desirous of purchasing the same; and, WHEREAS, The said parties hereto are duly authorized, under their respective charters and amendments thereto, the said party of the first part to sell, transfer, assign, and convey, and the said party of the second part to purchase, the said railroad and property and rights and franchises herein and hereby conveyed; and, WHEREAS, The board of directors of each of the parties hereto have duly authorized and agreed for their respective companies, the party of the first part to sell, transfer, assign, and convey, and the party of the second part to purchase, the said railroad and property, rights and franchises, hereinafter set forth, in accordance with the terms and upon the consideration NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 391 of this instrument, and the same has also been duly agreed to and sanctioned by the vote of all the stockholders of the party of the first part, at a stockholders' meeting held at the princi- pal office of the party of the first part, at Rome, Ga. , at which meeting each and every share of the capital stock of the said party of the first part was present, and duly represented and voted Now, THEREFORE, for and in consideration of the premises, and of the sum of two hundred thousand ($200,000) dollars, in hand paid by the party of the second part, the ConsMera . receipt whereof is hereby acknowledged, the said tlon ' party of the first part, hath granted, bargained, sold, con- veyed, released, assigned, set over, transferred, and confirmed, and doth by these presents grant, bargain, sell, convey, re- lease, assign, set over, transfer, and confirm unto the Nash- ville, Chattanooga & St. Louis Railway, the party of the sec- ond part, its successors and assigns, all and singular the line of railroad of the party of the first part, being about nineteen miles in length, and extending from the city of Rome in the county of Floyd, in the Sta,te of Georgia, through the counties of Floyd and Bartow, in Georgia, to the town of Kingston, in said county of Bartow, in the State of Georgia. And all side tracks, spur tracks, switching tracks, and tracks of every kind pertaining thereto, together with all the rights of way, depot grounds, yards, terminal properties, and rights and privileges of every kind, its entire roadbed, and superstructures; all de- pots, station houses, section houses, engine houses, shops, and all other buildings, and all lands and easements of every kind; also, all locomotives, tenders, cars, engines, tools, machinery, rails, spikes, joint fastenings, titulars, ties, and material of every kind, now held, owned, and possessed by the party of the first part. Also all the rights, powers, privileges, Frtnchlses and franchises of or belonging to the party of the p * ss - first part, and all other property and rights of property of every kind and nature, now held and owned by the said party of the first part. The roadbed and right of way of the main line of railroad 392 DEED TO ROME BRANCH above mentioned and herein conveyed extends from the western line of Broad street, in the city of Rome, at a point between the Hamilton storehouse and the Etowah river, to the point of junction with the Western & Atlantic Railroad, beyond the de- pot building in Kingston, Georgia. Said roadbed and main width of right ^ ne r ^o n ^ ^ Wa 7 being nowhere less than fifty feet of way. m w jdth, measuring from the middle of the main line track, a distance of twenty-five feet on each side thereof. And the said roadbed and right of way being at many places along the line very much wider than fifty feet. Also the following real estate, to wit : All that tract of land, situated, lying, and being in the lower portion of the city of Rome, in Floyd county, Georgia, and on the Etowah river, between the following points on said river, to wit : between the public county iron bridge, which crosses the said river at the foot of Broad street, and the wooden freight bridge of the East Tennessee, Virginia & Georgia Railway Company (now the Southern Railway Company), which bridge crosses said Etowah river above the mouth of Silver creek, and next above the iron bridge of the Chattanooga, Rome & Columbus Rail- road Company, said tract of land being bounded on one side by said Etowah river, as above mentioned, and at low water mark along said river between the two points or bridges above named, and bounded on the northwesterly side by Broad street bridge and the apron and approach to said bridge and by Broad street ; and bounded on the northerly side by First avenue (formerly South street), as far along said street as to the prop- erty of the East Tennessee, Virginia & Georgia Railway Com- pany (now the Southern Railway Company), which is a narrow strip of land adjacent to the property known as the Rome Com- press property, and bounded on the easterly side by the above named narrow strip of land, owned by said Southern Railway Company (formerly the East Tennessee, Virginia & Georgia Railroad Company), said strip of land running from First ave- nue along around the Rome Compress property, and across the foot of East Second street (formerly Franklin street), and along by the freight depot of the Southern Railway Company NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 393 (formerly freight depot of East Tennessee, Virginia & Georgia Railroad Company), and across the foot of East Third street (formerly Alpine street;, and then beyond said East Third street (formerly Alpine street) along a line twenty-five feet from the center of the main line track of the Rome Railroad Company to a railroad track of the Southern Railway Com- pany (formerly East Tennessee, Virginia & Georgia Railroad Company), which track crosses the main line of the Rome Rail- road Company, beyond the turntable of the Rome Railroad Company, and between said turntable and the Rome Oil Mills, then along the said track of the Southern Railway Company to the wooden freight bridge of the Southern Railway (formerly East Tennessee, Virginia & Georgia Railway), where said bridge crosses the Etowah river, said tract of land comprising and including the properties known as the Rome Railroad depots and platforms, and grounds, dray yards and switching yards; also the lands known as the Noble and Patton properties, and other lands of the Rome Railroad Company, adjacent and con- taining about eleven (11) acres, more or less, and various par- cels thereof, being partly described in the following deeds, to wit: The deed of Alfred Shorter to the Memphis Branch Rail- road & Steamboat Company of Georgia, dated April 2, 1849, and recorded in book F, page 402, of deeds, in Floyd county; also the deed of Alfred Shorter to the Rome Railroad Company, dated May 1, 1866, and recorded in book P, of deeds, pages 302, 303, of Floyd county records; also the deed and agree- ment between the East Tennessee, Virginia & Georgia Railroad Company and the Rome Railroad Company, dated May 29, 1884, and recorded in book EE of deeds, in Floyd county, page 310; also the deed of J. W. Noble et al. to the Rome Railroad Company, dated August 29, 1895, and recorded in book AAA of deeds, page 449, of Floyd county records. Also that jx>rtion of the following tract of land, not already included arid descril>ed in the tract of eleven (11) acres, above set forth, to wit: All that tract or parcel of land lying in the city of Rome, Floyd county, Georgia, known as the " Turn- table " of the Rome Railroad Company, and the land adjacent 394 DEED TO ROME BRANCH thereto, and described in a deed from Alfred Shorter to the Rome Railroad Company, dated May 26, 1879, and recorded in book Z of deeds, p. 515, of Floyd county records, and con- taining about one-sixth (j) of an acre, more or less. Also the following tract of land, west of Broad street, in the city of Rome, Floyd county, Ga., to wit: A strip of land fronting on Broad street, and lying between the railroad track now used as the main line of the Chattanooga, Rome & Columbus Railroad Company and the Hamilton Storehouse & Warehouse, together with the side track now located on said land, said strip of land being twenty-five (25) feet wide, measuring from the center of the main line track and running from Broad street back to the street in the rear that leads down to the steamboat wharf. Also the following real estate, to wit: An undivided one-half interest in the land known as the river depot and steamboat wharf property situated at the junction of the Etowah and Oostanaula rivers, and at the head of the Coosa river, in the city of Rome, in Floyd county, Georgia, together with the right of way for drays, back of what was formerly known as the cotton press, said land being also partly described in a deed made by C. D. Forsyth to the Rome Railroad Company, dated April 11, 1882, and lying between the track used as the main line of the Chattanooga, Rome & Columbus Railroad, west of Broad street, on one side, and the Etowah river, on the other side. Also an undivided half interest in that tract or parcel of land in the city of Rome, Floyd county, Georgia, at the end of Broad street, between the Rome Railroad right of way and the Etowah river, and between the wharf property on said river and the iron bridge across the Etowah river, together with all the buildings and structures on said land, said property being described in a deed from J. M. Elliott to the Rome Railroad Company, dated February 19, 1883; also all the title, rights, privileges, and uses in and to the main line track west of Broad street, in the city of Rome, which are now held and owned by the Rome Railroad Company; also all that tract of land in the town of Kingston, in Bartow county, Georgia, situated between NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 395 the main lines of the Koine Railroad and the Western & At- lantic Railroad, and contained within what is known as the ** Y," including also the land and roadbed upon which the tracks are now built and laid which form and bound said " Y," also the lands upon which the section houses of the Rome Railroad are built, and the adjacent lands thereto, and all the rights of way and terminal properties of every kind in the town of Kingston, in said county of Bartow, now held, used, and owned by the Rome Railroad Company. Also said party of the first part doth hereby assign, set over, and transfer to said party of the second part the following con- tracts, to wit: The contract between the Rome Railroad Com- pany and the East Tennessee, Virginia & Georgia Railroad Company, contained and set forth in the agreement and deed of said companies, dated May 29, 1884, and recorded in book EE of deeds, p. 310, of records, in Floyd county, Georgia; the contract made between the Rome Railroad Company and the East Tennessee, Virginia & Georgia Railroad Company and T. F. Howell, dated March 7, 1890; the contract between the Rome Railroad Company and H. T. Inman, dated December 17, 1891; the contract between the Rome Railroad Company and VanDyke & Henley, dated December 19, 1891; also all contracts with the Western Union Telegraph Company and with the Southern Express Company; also all contracts with the United States Government for carrying the mail by the party of the first part; also all the rights, benefits, privileges, or usu- fructs of every character which belong to or might have been enjoyed under the above contracts and under all other con- tracts by said party of the first part. To have and to hold all and singular the railroad and prem- ises, and properties and franchises, privileges and rights and con- tracts hereinbefore granted, bargained, sold, con- Franchlse veyed, released, assigned, set over, transferred and pass confirmed, and every, part and parcel thereof, with all the appurtenances in anywise thereunto belonging and apj>ertaining, unto the Nashville, Chattanooga & St. Louis Railway, the said party of the second part, its successors and assigns, to its and 396 DEED TO ROME BRANCH their own use, benefit, and behoof forever, in fee simple. And the said party of the first part, for itself and its successors, doth hereby covenant that it hath good and sufficient title to the railroad property, rights, and franchises herein and hereby conveyed, and the right to convey the same, and that the same are unincumbered, and that it and its successors will, and do by these presents, warrant and defend the same and every part thereof to the said party of the second part, its successors and assigns, against the claims of all persons whatsoever. And the said party of the first part doth also hereby cove- nant and agree, that it shall and will at any time, and from time to time hereafter, upon request made, do, execute, and deliver all such further and other acts, deeds, and things, as shall be reasonably advised or required to effectuate the intention of these presents, to assure and confirm to the said party of the second part, its successors and assigns, all the property and estate and rights, privileges, and franchises, hereinbefore de- scribed, and being intended to be granted and conveyed. In witness whereof, the Rome Railroad Company, the said party of the first part, pursuant to the orders and resolutions of its convention of stockholders and its board of directors, hath caused this instrument to be signed by its president and attested by its secretary and its corporate seal to be hereunto affixed, the day and year first above written. THE ROME RAILROAD COMPANY. [SEAL.] BY W. W. BROOKES, President. Attest: THE ROME RAILROAD COMPANY, By J. H. AMBROSE, Secretary and Treasurer. Signed, sealed, and delivered by the Rome Railroad Com- pany by W. W. Brookes, president of said company, this the thirty-first day of December, 1896, at Rome, Ga., in the pres- ence of each of us. JOHN H. REYNOLDS, [SEAL.] B. I. HUGHES, N. P. F. C., Ga. Signed, sealed, and delivered by the Rome Railroad Com- pany by J. H. Ambrose, secretary and treasurer of said com- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 397 pany, this the fourth day of January, 1897, at Nashville, Davidson county, Tennessee, in the presence of each of us. Witness: WM. B. SHELTON, Deputy Clerk , J. B. ARMSTRONG, [SEAL.] P. A. SHELTON, Clerk County Court Davidson Co., Tenn. STATE OF TENNESSEE, ) Davidson County. j I, P. A. Shelton, clerk of the county court, do hereby cer- tify that the county court of Davidson county is a court of record, with a seal thereto attached. I further certify that J. H. Ambrose, secretary and treasurer of the Rome Railroad Company, who is known to me, personally appeared before me, on this the fourth day of January, 1897, and signed and executed the foregoing instrument, in the presence of J. B. Armstrong and myself. Witness my hand and seal of said court affixed hereto. [SEAL.] P. A. SHELTON, Clerk County Court Davidson Co., Tenn. The above deed was registered in the clerk of superior court's office, in Floyd county, in book CCC, of deeds, p. 96, No. 60; and in Hartow county, in book GO, p. 409-414. AMENDMENT TO CHARTER OF ROME RAIL- ROAD COMPANY AUTHORIZING IT TO SELL ITS ROAD, ETC. Petition of tbe Rome Railroad Company for amendments to its charter. To the Honorable the Secretary of State of Georgia: The petition of the Rome Railroad Company respectfully shows: 1. That it is a railroad corporation owning and operating a railroad from the city of Rome to Kingston, Georgia, with its principal office at Rome, Georgia, and was duly incorporated in the State of Georgia under the act of the general assembly of said state, approved December 21, 1839, entitled "An act to incorporate the Memphis Branch Railroad & Steamboat 398 AMENDMENT TO CHARTER ROME BRANCH Company of Georgia," and various subsequent amendments thereto enacted by the general assembly of said state, approved on the following dates, to wit: Twenty-ninth day of December, 1847; sixteenth day of January, 1850; twelfth day of Decem- ber, 1866; twenty-fourth day of August, 1872; and sixteenth day of October, 1889; the said last named act of October 16, 1889, however, never having been accepted nor adopted by pe- titioner as an amendment to its charter, and the same being inoperative and null and void. 2. That petitioner, the Rome Railroad Company, desires an amendment to its charter granting to petitioner the corporate authority and power to sell and convey its railroad and all its property and franchises to any other railroad company, as now is or may hereafter be authorized or allowed by the provisions of the constitution and laws of this state. 3. Petitioner desires also an amendment to its charter by having granted to petitioner all the powers and rights and priv- ileges granted to similar corporations set forth and contained in section 13 and in section 18 of the acts of the general as- semby of the State of Georgia, approved December 17, 1892, and known as the general act for incorporation of railroads, etc., the same being entitled, "An act to carry into effect article 3, section 7, paragraph 18, of the constitution of this state, in so far as the same relates to the issuing and granting corporate powers and privileges to railroad companies by the secretary of state; to define the powers, rights, privileges, im- munities, and liabilities of such railroads; to regulate the same; to provide for the consolidation of the same; to build branches and make extensions thereof; to enable the same to run naviga- tion lines in connection therewith; to provide for the purchase or lease of one railroad by another; to grant renewals of char- ters, and for other purposes." 4. Petitioner pays the fee as by law provided, and also files herewith, along with this petition, and annexed thereto, a certi- fied abstract from the minutes of the Rome Railroad Company, marked exhibit "A," showing that this application for amend- ment has been duly and legally authorized by all the stock- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 899 holders of the corporation at a stockholders' meeting of the said Koine Railroad Company, held at Rome, Georgia, the prin- cipal office of the company, on the twenty-fourth day of De- cember, 1896. Petitioner further shows that at said meeting, each and every share of the capital stock of the corporation, to- wit: 2,501 T \ shares, was duly present and represented, in person and by proxy, and was unanimously voted for the passage and adop- tion of the resolutions contained in the certified abstract from the minutes hereto attached and marked exhibit "A." Where- fore your petitioner, the Rome Railroad Company, having duly complied with the requirements of law, now hereby set forth and certified its intention and desire to obtain and adopt as amendments to its charter, the corporate authority, powers, rights, and privileges set forth above in paragraphs 2 and 3 of this petition, and prays that a certificate may issue to the Rome Railroad Company granting to it and conferring upon it the corporate authority and power to sell and convey its rail- road and all its property and franchises to any other railroad company as now is or may heeafter be authorized or allowed by the provisions of the constitution and laws of this state. Also all the powers and rights and privileges granted to similar corporations set forth and contained in section 13 and in section IS of the act of the general assembly of the State of Georgia, approved December 17, 1892, and entitled "An act to carry into effect article 3, section 7, paragraph 18, of the constitution of this state, in so far as the same relates to the issuing and granting corporate powers and privileges to railroad companies by the secretary of state; to define the powers, rights, privileges, immunities, and liabilities of such railroads; to regulate the same; to provide for the consolida- tion of the same; to build branches and make extensions thereof; to enable the same to run navigation lines in connec- tion therewith; to provide for the purchase or lease of one railroad by another; to grant renewals of charters, and for other purix)ses." And petitioner prays that it may thus acquire the corporate 400 AMENDMENT TO CHARTER ROME BRANCH authority, powers, rights, and privileges above set forth, and as by law in such cases provided. ROME RAILROAD COMPANY, By W. W. BROOKS, President. Attest: J. H. AMBROSE, Secretary of Roine Railroad Company. "EXHIBIT A' r STOCKHOLDERS' MEETING. OFFICE OF THE ROME RAILROAD COMPANY, ROME, GA., Dec. 24, 1896. On motion, the following resolutions were unanimously adopted, the entire capital stock of the company, to wit, 2,- 501 T V shares being present and represented in person and by proxy, and each and every share being voted in favor of the adoption and passage of the resolutions: Resolved, That the Rome Railroad Company, by the unani- mous vote of all its stockholders, this day in convention assem- bled, desires to obtain and accept amendments to its charter conferring upon it the corporate authority and powers to sell and convey its railroad and all -its property and franchises to any other railway company not repugnant to the provisions of the constitution of this state. Also to have granted to it and conferred upon it all the powers and rights and privileges granted to similar corporations set forth and contained in sec- tion 13 and in section 18 of the act of the general assembly of the State of Georgia, approved December 17, 1892, and known as the general act for incorporation of railroads, etc., the same being entitled ' 'An act to carry into effect article 3, section 7, paragraph 18, of the constitution of this state, in so far as the same relates to the issuing and granting corporate powers and privileges to railroad companies by the secretary of state; to define the powers, rights, privileges, immunities, and liabilities of such railroads; to regulate the same; to pro- vide for the consolidation of the same; to build branches and make extensions thereof; to enable the same to run navigation lines in connection therewith; to provide for the purchase or lease of one railroad by another; to grant renewals of charters, and for other purposes." NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 401 /' solved further, That a petition is hereby directed to be filed to the secretary of state of Georgia, by the president of this company, for and on its behalf, setting forth the desire of the Rome Railroad Company to obtain and accept as amend- ments to its charter, the authority and power to sell and convey its railroad and all its property and franchises to any other railroad company not repugnant to the provisions of the consti- tution of this state. Also, to obtain all the powers, rights, and privileges set forth and contained in sections 13 and 18 of the above named act, approved December 17, 1892, and praying for the issuance of the necessary certificate to the Rome Rail- road Company granting the desired amendments and conferring upon it the authority and powers asked for; and the said pres- ident is hereby specially directed and empowered to take all necessary steps to carry these resolutions into effect and to ob- tain the desired amendments to the charter of this company. I, J. H. Ambrose, secretary of the Rome Railroad Company, do hereby certify that the foregoing is a true copy of resolu- tions adopted at a meeting of the stockholders of the Rome Railroad Company, held at Rome, Georgia, on the twenty- fourth day of December, 1896, and that the above is a true and correct abstract from the minutes of said stockholders' meeting. In witness whereof, I have hereunto affixed my official sig- nature and attached the seal of the company, this twenty-sixth day of December, 1896. J. H. AMBROSE, [SEAL.] Serfy Rome Railroad Company. OFFICE OF SECRETARY OF STATE, ATLANTA, GA. Filed December 30, 1896. Recorded February 1, 1897. H. W. THOMAS, Clerk. STATE OF GEOBOIA, OFFICE OF SECRETARY OF STATE, ATLANTA. To Whom it May Concern Greeting: The Rome Railroad Company, a corporation created by an act of the general assembly of this state, approved December 21, 1839, and acts amendatory thereof, approved January 16, 26 402 AMENDMENT TO CHARTER ROME BRANCH 1850, December 12, 1866, and August 24, 1872, having peti- tioned for an amendment of the charter of said corporation, in terms of the law, in such cases made and provided; the cor- porate powers and privileges set out in the thirteenth and eigh- teenth sections of an act approved December 17, 1892, entitled "An act to carry into effect article 3, section 7, paragraph 18, of the constitution of this state," etc. (also such power and au- thority to sell and convey its railroad and all of its property and franchises to any other railroad company as now is or may hereafter be authorized or allowed by the constitution and laws of this state), providing for the grant of corporate powers and privileges by the secretary of state to railroad companies, are hereby conferred upon the said Rome Railroad Company. Witness my hand and the seal of this state, this thirtieth day of December, 1896. ALLEN D. CANDLER, Secretary of State. 1. The powers and privileges contained in sections 13 and 18 of the act approved December 17, 1892, above referred to, are fully set out in note 3 to section 2 of the charter of the Rome Railroad Company in preceding 1 chapter. 2. The petition and amendment above set out are registered in the secretary of state's office in Atlanta, Ga. Charter amended; route; time for completing road extended. Be it enacted by the Senate and House of Representatives of the State of Georgia in General Assembly met, and it is hereby enacted by the authority of the same, That the railroad author- ized and directed by the third section of said act, shall be con- structed from such point on the Western & Atlantic Railroad, to Rome, in Floyd county, and by such route as may be deemed most practicable and expedient; and that said company may or may not carry said road beyond Rome, as they may deem proper. And that said company shall have until the year 1850 for the completion of said road to Rome. (Acts Ga., 1845, p. 145; approved December 29, 1845.) Charter amended ; capital stock increased ; value of shares ; qualification of directors. SECTION 1. Be it enacted by the Senate and House of Repre- sentatives of the State of Georgia in General Assembly met, and NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 403 it is hereby enacted by the authority of tfie same, That the capi- tal stock of the Memphis Branch Railroad & Steamboat Com- pany of Georgia shall be $100,000 in shares of one hundred dollars each, with power, after the completion and equipment of said road, to increase the said capital stock to an amount not exceeding the actual cost of the road and outfit. SEC. 2. Be it furtlwr enacted, etc., That, to qualify a stock- holder for a director in said company, he shall hold twenty shares of stock in said company, instead of fifty shares, as provided by the charter of which this is amendatory. SEC. 3. And be it further enacted, etc., That all laws and parts of laws militating against this act be, and the same are hereby, repealed. (Acts Ga., 1847, p. 170; approved Decem- ber 29, 1847.) Charter amended; name changed to Rome Railroad Company. WHEREAS, By virtue of an act of incorporation, passed the twenty-first day of December, 1839, and amendments thereto, a company, consisting of Wm. R. Smith, Alfred Shorter, John P. Eve, John P. King, Daniel R. Mitchell, and others, was duly organized under the corporate name and style of the Mem- phis Branch Railroad & Steamboat Company of Georgia: SECTION 1. Be it enacted by the Senate and House of Repre- sentatives of the State of Georgia in General Awembly met, and it is hereby enacted by the authority of the same, That William R. Smith, Alfred Shorter, John P. Eve, J. W. M. Berrien, John P. King, and others, the present stockholders, and their suc- cessors and assigns, proprietors of the railroad contract and leading from Kingston to Rome, in this state, be hereafter known and recognized as a body politic and corporate by the name and style of the Rome Railroad Company, with all powers, privi- leges, and liabilities contained in the act aforesaid; and all con- tracts or causes of action, heretofore or hereafter made accru- ing, the said company shall, by the said name of the Rome Railroad Company, sue and be sued, anything in the original act of incorporation to the contrary notwithstanding. (Acts Ga., 1849-50, p. 243; approved January 16, 1850.) 404 AMENDMENT TO CHARTER ROME BRANCH Charter amended, adding word "trustee" in eighth section of charter. SECTION 1. Be it enacted, etc., That the eighth section of an act entitled "An act to incorporate the Memphis Branch Railroad & Steamboat Company of the State of Georgia," assented to December 21, 1839, be so amended as to read after the words " or as administrator, executor, or guardian," as follows: "Or as administrator, executor, guardian, or trustee." SEC. 2. Repeals conflicting laws. (Acts Ga. , 1866, p. 128; assented to December 12, 1866.) Charter amended; authorized to consolidate with Memphis Branch Railroad Company. SECTION 1. Be it enacted, etc., That the Rome Railroad Com- pany may, at any time hereafter, consolidate its stock and fran- chises with the Memphis Branch Railroad Company, by and with the consent of the stockholders of both of said companies, and, when said consolidation is made, the consolidated com- pany shall assume the corporate name of ' ' The Memphis Branch Railroad Company." SEC. 2. Be it further enacted, That all the privileges, rights, and immunities heretofore granted, or which may hereafter be granted, to either of said companies shall continue and apper- tain and belong to the consolidated company. SEC. 3. Be it further enacted, That all laws and parts of laws militating against this act be, and the same are hereby, repealed. (Acts Ga., 1870, p. 360; approved October 27, 1870.) The Memphis Branch Railroad Company was chartered by Acts Ga., 1868, p. Ill, and was also given the power to consolidate. Its charter was amended by Acts 1870, pp. 337, 338; Acts 1872, p. 365, and Acts 1871-2, p. 196. Authorized to use common tracks, etc., with certain roads, when and where. SECTION 1. Be it enacted by the General Assembly of the State of Georgia, That the Rome Railroad Company, the Selma, Rome & Dalton Railroad Company, and the Memphis Branch Railroad Company, or any two of them, be, and they NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 405 are hereby, authorized to use in common the right of way, yards, and track upon the franchise heretofore granted to the Rome Railroad Company, from the junction of the Etowah and Oostanaula rivers to the point where the track of the Selma, Rome & Dalton Railroad, as now laid, diverges from the track of the Rome Railroad, near the northern or eastern limits of the city of Rome, upon such terms as the respective parties have agreed or may agree upon with the said Rome Railroad Company as compensation for such joint use of its franchises, and upon obtaining the assent of the Rome Railroad Company thereto. SEC. 2. Be it further enacted, That each of said companies shall be liable to parties aggrieved by violation of contracts or torts committed by it, and shall not be liable in any covenant or for any damage or in any tort, for the act or acts or omis- sion of either of the others or their servants. SEC. 3. Be it further enacted, That it shall and may be law- ful for the said Rome Railroad Company to make a similar contract, with a like effect in all respects, with the North & South Railroad Company, the Lookout Mountain Railroad Company, or any other railroad connecting at Rome, which may be hereafter constructed, for a like common use of the railroad yard and right of way, at or near Rome, of said firs named company, upon such terms as may be agreed upon by the respective parties at interest. SEC. 4. Repeals conflicting laws. (Acts Ga., 1872, p. 365; approved August 24, 1872.) OTHKR ACTS OF GEORGIA RELATING TO ROAD. 1. Acts Ga., 1889, p. 282, approved October 16, 1889, grants certain rights, powers, and privileges to the company, but, by section 7 of said act, the same was rendered void unless certain conditions were complied with. The conditions were never performed, and the act became a nul- lity. It is therefore here omitted. 2. By Acts Ga., 1869, p. 204, approved March 18, 1869. certain commis- sioners were appointed to negotiate for the purchase of this road for the State of Georgia, but no trade was consummated, and the act is here omitted. 406 MIDDLE TENNESSEE & ALABAMA BRANCH CHAPTER XXXIV. MIDDLE TENNESSEE & ALABAMA RAILWAY COMPANY. [FORMERLY THE DECATUR, CHESAPEAKE & NEW ORLEANS RAILWAY Co. Now FORMS EXTENSION OF SHELBYVILLE BRANCH SOUTH INTO ALABAMA.] How acquired by Nashville, Chattanooga & St. Louis Rail- way. On July 20, 1887, the Decatur, Chesapeake & New Or- leans Railway Company was chartered under the general Acts of Tennessee, 1875, ch. 142, to run from the Alabama state line to Gallatin, Tennessee, connecting at the line of Lincoln county and the State of Alabama with a railroad projected by a corporation chartered under the general laws of Alabama, to extend from Decatur to the said state line, and which two cor- porations formed, in reality, the said Decatur, Chesapeake & New Orleans Railway Company. The Tennessee charter was registered July 28, 1887, in the office of the secretary of state of Tennessee, in book F, p. 157; in the register's office of Lin- coln county, in trust deed book No. 8, pp. 22-31. The Ala- bama charter was registered in the office of the secretary of state of Alabama, in corporate book U C," pp. 126-129. Copies of both the Tennessee and Alabama charters may be found fur- ther on in this chapter. On June 25, 1880, the said Decatur, Chesapeake & New Or- leans Railway Company executed to the American Loan & Trust Company of New York, as trustee, a mortgage or deed of trust known as its first mortgage, conveying its entire rail- way, properties, etc., to secure an issue of $3,000,000 bonds, of which number $1,330,000 were subsequently issued. Default being made in the payment of the coupons, a bill was filed by the said trustee in the circuit court of the United States in Tennessee and Alabama, to foreclose said mortgage, which suit was prosecuted to completion by the ' ' State Trust Company " as a successor trustee. NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 407 On November 16, 1892, a decree of foreclosure and sale was entered in the said circuit court of the United States for the middle district of Tennessee, at Nashville, and on November 23, 1892, a similar one was entered in the circuit court of the United States for the northern district of Alabama. On January 2, 1893, the railroad, properties, etc., were sold at public auction in conformity with the terms of the decree, and were purchased by J. Edward Simmons, Daniel Lord, Garrett A. Hobart, R. D. Warren, Ernest Coldwell, John T. Crass, and David Wilcox, as trustees, under and in pursuance of a certain plan of reorganization of the said Decatur, Chesa- peake & New Orleans Railway Company. This sale was confirmed by decree of the federal court, and, on January 7, 1893, Henry M. Doak, master commissioner of the circuit court for the middle district of Tennessee, at Nash- ville, executed a deed to the said J. Edward Simmons l /., of the railroad properties, franchises, rights, privileges, etc., of said Decatur, Chesapeake & New Orleans Railway Company. Said deed was registered in the register's office of Bedford county, Tenn., February 20, 1893, in deed book No. "1," p. 544; in Moore county, Tenn., February 23, 1893, in deed book No. 5, p. 121; in Lincoln county, Tenn., March 11, 1893, in deed book "Z," p. 581. On January 31, 1893, the said J. Edward Simmons et al., composing the reorganization committee as aforesaid, met in Nashville for the purpose of becoming incorporated as the pur- chasers of the property and franchises of said railroad com- pany, and, to this end, filed, on February 24, 1893, a certifi- cate in the office of the secretary of state of Tennessee, under the provisions of 1514 of the code of Tennessee (Shannon's), and of the Acts of Tenn., 1877, ch. 12, sec. 2; 1885, ch. 84. Certificates for a similar purpose were tiled with the secre- tary of state of Alabama, on March 9, 1893, under 1596 et seq.y of the Code of Alabama, 1886, and 1181 et seq. of Code of 1896. Corporations organized by purchasers succeed to franchises and powers of old corporation, but as to ownership of property and liabilities, it is a new one. 61 Ala., 559. 408 MIDDLE TENNESSEE erly registered in the register's office of Bedford county, in book No. 5, p. 54; in Moore county in book No. 6, pp. 236-244; in Lincoln county in deed book No. "E E," pp. 85-91; and in the office of the jud^e of probate court of Madison county, Alabama, in vol. 80 of deeds, p. 429. On October 13, 1897, Joseph Dickson and wife sold the rail- road, easements, properties, franchises, etc., to the Nashville, Chattanooga & St. Louis Railway. The deed was registered March 12, 1898, in Bedford county, Tenn., in book 5, p. 394; in Moore county, Tenn., on March 14, 1898, in book 6, p. 406; in Lincoln county, Tenn., March 14, 1898, in book "F F," p. 27; in Madison county, Ala., March 15, 1898, in vol. 83 of deeds, p. 231; in Limestone, Ala., March 19, 1898, in vol. 58 of deeds, p. 379. A copy of the deed may also be found in the next chapter herein. 1. The sale carried bonds. In selling the railroad, properties, etc., Joseph Dickson also delivered up to the Nashville, Chattanooga & St. Louis Railway all the first mortgage bonds issued save one, and over five-sixths of the second mortgage bonds, as well as all the uncertified bonds of both the first and second mortgages. 2. See deed of Dickson to Nashville, Chattanooga & St. Louis Railway in next chapter. 3. Legality of purchase. The Nashville, Chattanooga & St. Louis Railway had the authority to make this purchase under Acts Tenn., 1877, ch. 20, which provided that "any railroad corporation which had been created, or whose corporate existence has been recognized, by any act of the legislature of this state, is hereby authorized and empowered to become purchaser of any railroad sold in this or any adjoining state, under any judicial proceeding in such state, or sold by any person or persons, natural or corporate, who may have purchased or derived title under or from any such judicial sale." Acts Tenn., 1877, ch. 20; Shan- non's Code, 2 1511. As the Nashville, Chattanooga & St. Louis Railway purchased the road from Joseph Dickson, who had, in turn, purchased it at judicial sale, as heretofore explained, this act should be the con. trolling one. See, also, Acts Tenn., 1871, ch. 69; Shannon's Code, g 1609; Acts 1881, ch. 9; Acts 1891, ch. 61; Acts 1891, ch. 125; Code (S.), { 1521. In AlitixniHi the authority was conferred by | 1586 of Code of 1886, as amended by Acts 1890-91, ch. 586; Acts 1888-89, p. 75. See, also, Acts 1890-91, pp. 568, 1086; Acts 1886-87, p. 63; Code 1886, {1587; Code 1896, 21170. 410 MIDDLE TENNESSEE & ALABAMA BRANCH What franchises passed under this sale. in addition to the road, property, right of way, etc. , therein conveyed, the deed specifically transferred all rights, privileges, and franchises of the old Decatur, Chesapeake & New Orleans Railway Company, and of the Middle Tennessee & Alabama Railway Company, its successor. See deed in next chapter. For an enumeration of the franchises, etc., see Tennessee and Alabama charters further on in this chapter. Distance road built when purchased. As will be seen from the Alabama charter farther on in this chapter, the road was authorized to be constructed from the Mississippi state line to the Tennessee river, at the town of Decatur or New Decatur, thence across the Tennessee river to a point on the boundary line of the State of Tennessee; thence by the Tennessee charter through Fayetteville, Shelbyville, and Murfreesboro to Galla- tin, Tennessee. When the Nashville, Chattanooga & St. Louis Railway purchased the road, only that part from Fayetteville, Tennessee, south to Madison Cross Roads, Alabama, a distance of 27.4 miles, was completed and in opera- tion. From Madison Cross Roads to Jeff, a distance of 30.4 miles, the track had once been laid, but when purchased by the Nashville, Chat- tanooga & St. Louis Railway the ties and bridges were gone, and noth- ing but the rails remained. The same condition existed as to that part of the road from the Moore county line to Fayetteville, a distance of 13.5 miles. From Shelbyville south across Duck river, 2.1 miles, the track had been laid, but was not safe for engines to run over. From this point to the Moore county line, a distance of 12.4 miles, the trestle work was completed, but the grading was not. From Jeff to Decatur Junction, a distance of 20 miles, the grading had at one time been almost completed, but nothing else done. 1. Right to remove rails on parts of road not in use. The Nashville, Chattanooga & St. Louis Railway, as the legal purchaser of the property, right of way, privileges, and franchises of this road, will be entitled at any time to remove the rails, cross-ties, trestles, bridges, piers, and, in fact, all superstructures off those parts of the right of way which had not been completed, or upon which trains could not run when the purchase was made. This is too clear for argument, and would be so whether the railway could be considered in law as having abandoned that part of the right of way or not. The railway company, in acquir- ing the right of way, did not take the fee, but simply an easement. In laying down the rails, ties, etc., or in building the bridges, it did not attach them to the/, but to the ease- ment. If a forfeiture or abandonment takes place, the easement is removed immediatedly from the/#, and with it is carried, of course, all the property attached thereto. The land- owner, therefore, will have no interest in them, or lien thereon. They will belong to the railway company. This doctrine has been uniformly held in a long and unbroken chain of authorities. 142 U. S., 396 (L. C. P. Co., Book 35, p. 1055); 22 Ohio St., 563; 30 Md., 347; 87 Pa. St.. 28. 2. What constitutes abandonment of right of way. For a discussion of this subject, see " Right of Way," "Abandonment," "Franchise,''' 1 subhead, "Frofeiture of," herein. Refer indent. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 411 3. Right of railway to abandon part or whole of right of way. Under the general laws of Tennessee there is nothing to prevent a railway company from abandoning its entire right of way, though such action would work a forfeiture of its charter. A failure to build the entire tine of road, as authorized by it* charter, however, is not a ground of forfeiture in this state. It is probable, however, that it cannot abandon a part which has actually been constructed and in operation without such rt-sult. 24 N.Y., 101; 82 Am. Dec., 206: 17 Am. L. Reg. (N. S.), 2M; 113 U. S.. 424; Elliott on R. R.. 038; 2 Barn. & Aid., 648; 80 Wis., 407; 20 N. W. Rep.. 090; 24 S. E. Rep., 154; 4 1)11., 47V; 29 Conn., 538; 142 U. S., 492; but see 12 Gray, 180; 1 Shannon (Tenn.), 511; 120 III., 48; Rover on Railroads, 572. Under the Acts of Tenn.. 1887, ch. 39, a railroad company may change either terminus before the final location of the road. This would assist in many cases. Width Of right Of way (in Tennessee). The Decatur, Ches- apeake & New Orleans Railway Company and its successor, the Middle Tennessee & Alabama Railway Company, were char- tered in Tennessee, under the general Act of 1875, ch. 142. In these charters there are no clauses granting specified num- bers of feet as a right of way, in the absence of any contract with the original landowner, as was done in the charter of the Nashville, Chattanooga & St. Louis Railway. Section 9 of the charter, however, provided that the said company shall have the right to appropriate, as an easement, a right of way not exceeding two hundred feet one hundred on each side of the center line of said road over the land of any person through which the line of track may be located. Under this section the Decatur, Chesapeake & New Orleans Railway Company, or its successor, the Middle Tennessee & Alabama Railway Company, could have originally condemned any number of feet up to and including two hundred, for a right of way. Whatever number of feet was originally condemned, however, would now be bind- ing upon the Nash ville, v Chattanooga & St. Louis Railway. Should no purchase or condemnation have been had at all, then the entry and construction of the road would be regarded as an appropriation of so much of the land as the law authorized, which is two hundred feet in Tennessee, and the Nashville, Chattanooga & St. Louis Railway, as the lawful purchaser thereof, would be entitled to that number. 3 Lea (Tenn.), 478. If a purchase or gift from the landowner was made, then, of course, the deed would control if mention is made of the width therein. If no width is specified, then the law presumes the statutory width of two hundred feet was intended. 98 Ala., 647. See, also, 3 Lea (Tenn.), 478. 412 MIDDLE TENNESSEE & ALABAMA BRANCH (In Alabama.) As the charter granted by the State of Ala- bama conferred upon the company the pwvers, capacities, du- ties, liabilities, etc., as expressed in ch. 6, title 1, part 2, of the Code of Alabama, reference must be had thereto in ascer- taining its power to condemn a right of way. By subsec. 8 of 1580 of the Code of 1886, or subsec. 8 of the Code of 1896, which is contained in the chapter, title, and part above referred to, the company is given the power to purchase or condemn a right of way not exceeding one hundred feet in width throughout its entire length of road in Alabama. If the landowner executed a deed, therefore, for the right of way, and no mention is made of the width ^ then the law presumes the statutory width of one hundred feet was granted. 98 Ala., 647. If the deed or condemnation proceedings provide a spec- ified width, then that controls. If there is no deed or condem- nation^ then the entry and construction of the road would doubtless be regarded as an appropriation of the statutory one hundred feet. 3 Lea (Tenn.), 476. 1. Width of right of way from Fayetteville to Madison Cross Roads. It will be seen, from the deed of Joseph Dickson in the next chapter, that the width of the right of way from Fayetteville, Tenn., to Madison Cross Roads, Ala., is guaranteed to be at least thirty feet wide on either side of the center of the road. 2. Statute of limitations. It is possible that the statute of limitations would run against the railway company on this line of road, under the charter of the Decatur, Chesapeake & New Orleans Railway Company or the Middle Tennessee & Alabama Railway Company, if adjoining land- owners are allowed to use and occupy adversely a part of the two hun- dred foot right of way in Tennessee, or the one hundred foot right of way in Alabama, though this question has never been decided. This would more likely be so in Alabama, as g 1187 of the Code of 1896 pro- vides for a forfeiture of franchises by nonueer for five consecutive years. There is no such statute in Tennessee, however, and our courts might not so hold. This cannot happen on the main branch, however, under the charter of the Nashville, Chattanooga & St. Louis Railway. See charter herein, chapter 1. In considering the question, however, atten- tion is called to Acts Tenn , 1849-50, ch. 266, sec. 3, which provides that "all branches of the Nashville, Chattanooga & St. Louis Railway, as may be made, shall have all the rights and privileges, and be placed in all respects on the same footing, as the Nashville, Chattanooga & St. Louis Railway." 3. Further discussions. For a more extensive discussion of this sub- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 413 ject, together with the right of taking more than two hundred feet in Tennessee or one hundred feet in Alabama, see "Eminent Domain," herein. Refer to Index. ORIGINAL CHARTER OF THE DECATUR, CHES- APEAKE & NEW ORLEANS RAILWAY COMPANY. [!N TENNESSEE.] (Chartered under General Acts Tenn., 1875, ch. 142, sec. 6.) SECTION i. Incorporation, name, route, general powers. Be it Jbnown t that J. W. Rowles, Geo. W. Morgan, J. H. Hoi- man, F. G. Buchanan, G. C. Sandusky, R. P. Frierson, Joe D. Wilhoite, W. W. Gill, B. M. Tillman, W. A. Frost, citizens of the State of Tennessee, not under the age of twenty-one years, are hereby constituted a body politic and corporate by the name and style of "The Decatur, Chesapeake & New Or- leans Kail way Company," for the purpose of constructing a railway from the Alabama state line to Gallatin, in Sumner county, Tennessee, connecting, at the line of Lincoln county and State of Alabama, with a railway projected by a corpora- tion chartered under the laws of Alabama, from Decatur, in said State of Alabama, to said state line, being the southern boundary line of Lincoln county, commencing at a point on said line near a point directly between Decatur, Alabama, and Fay- etteville; thence to Fayetteville; thence to Shelbyville, in Bed- ford county; thence to Murfreesboro, in Rutherford county; and thence to Gallatin, in Sumner county, all within the State of Tennessee. 1. Charter amended; may change termini. By Acts Tenn., 1387, ch. 30, sees. 1, 2, all railroad companies, chartered under the general laws of this state, may, by resolution of board of directors, change either terminus before the final location of the road. See act itself for method. 2. Arbitration. liy-laws for arbitration sustained. 7 Pick. (Tenn.), 04. 3. Branches. Hy Acts Tenn., 1889, ch. 158, all railroad companies, chartered under the general laws, are allowed to build branch roads in certain cases. See act itself for method. 4. Incorporative name. This company was also chartered in Ala- bama. For charter, see further on in this chapter. It subsequently is- sued bonds, secured by mortgage, which was foreclosed. At the sale a reorganization committee bought it in, and, as such purchasers, took the 414 ORIGINAL CHARTER M. T. & A. BRANCH necessary steps to become incorporated, under 1514 of Shannon's Code of Tennessee, and of \ 1598 of the Code of Alabama, 1886, as the " Middle Tennessee & Alabama Railway Company." SEC. 2. General powers (Continued). The general powers of said corporation are to sue and be sued by the corporate name; to have and use a common seal, which it may alter at pleasure; if no common seal, then the signature of the name of the corporation by any duly authorized officer shall be legal and binding; to purchase and hold or receive by gift, in addi- tion to the personal property owned by said corporation, any real estate necessary for the transaction of the corporate busi- ness, and also to purchase or accept any real estate in payment, or part payment, of any debt due to the corporation, and sell realty for corporation purposes; to establish by-laws and make all rules and regulations not inconsistent with the laws and the constitution deemed expedient for the management of corporate affairs; to appoint such subordinate officers and agents, in ad- dition to the president and secretar}" or treasurer, as the busi- ness of the corporation may require; to designate the name of the office and fix the compensation of the officer. SEC. 3. Special provisions. The following provisions and restrictions are coupled with said grant of powers: A failure to elect officers at the proper time does not dissolve the corpora- tion, but those in office hold until the election or appointment and qualification of their successors. The term of all officers may be fixed by the by-laws of the corporation, the same not, however, to exceed two years. The corporation may, by by- laws, make regulations concerning the subscription for or transfer of stock; fix upon the amount of capital to be invested in the enterprise, the division of the same into shares, the time required for payment thereof by the subscribers for stock, the amount to be called for at any one time, and, in case of failure of any stockholder to pay the amount thus subscribed by him at the time and in the amounts thus called, a right of action shall exist in the corporation to sue said defaulting stockholder for the same. See 3 Hum., 531; 12 Lea, 252; 4 Cold., 101. NASHVILLE, CHATTANOOGA ., modified.) See 12 Heis. (Tenu.), 57. SEC. 28 (1343). Costs against appellant when not. if the verdict of the jury upon the trial affirms the finding of the jury of inquest, or is more unfavorable to the appellant than the finding of such jury, the cost shall be adjudged against such 420 ORIGINAL CHARTER M. T. & A. BRANCH appellant; otherwise the court may award costs as in chancery cases. (/) SEC. 29 (1344.) Appeal does not suspend work, how. The taking an appeal does not suspend the operations of the peti- tioner on the land, provided such petitioner will give bond with good security, to be approved by the clerk, in double the amount of the assessment of the jury of inquest, payable to the defendant, and conditioned to abide by and perform the final judgment in the premises. SEC. 30 (1345.) Preliminary surveys, damages. A per- son or company actually intending to make application for the privileges herein contemplated, and entering upon the land of another for the purpose of making the requisite examinations and surveys, and doing no unnecessary injury, is liable only for the actual damage done ; and sued in such case, the plaintiff shall recover only as much costs as damages. (Iowa Code, 1851, 778.) SEC. 31 (1346). Damages to be prepaid, or bond on appeal. No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way until the damages assessed by the jury of inquest and the cost have been actually paid, or, if an appeal has been taken, until the bond has been given to abide by the final judgment as before provided. See 6 Cold., 162; 7 Heis., 518, 535; 13 Lea, 671. SEC. 32 (1347). Owner may have inquest or sue for dam- ages, when; proceedings. If, however, such person or company has actually taken possession of such land, occupying it for the purpose of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceed- ings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way, in which case the jury shall lay off the lands by metes and bounds and assess the damages as upon the trial of an appeal from the return of a jury of inquest. See 2 Head, 174, 665; 3 Lea, 480; 13 Lea, 670. NASHVILLE, CHATTANOOGA er use of the public roads, streets or alleys, in the usual and proper mode for their convenience. By Acts Tenn., 1885, ch. 20, all railroad companies in the state were authorized to select and alter the gauge of their road at pleasure. SEC. 35. Crossings; Signboards. Boards well supported by posts or otherwise shall be placed and constantly kept across each public road, when the same is crossed on the same level by the track of the railway, the boards to be elevated so as not to obstruct travel, and on each side of said boards there shall be printed in large letters, easily to be seen by the traveler, 422 ORIGINAL CHARTER M. T. e combined into one, and shall not necessarily be stockholders, said president and the other corporators to constitute the first board of di- rectors. The board of directors may fix the amount of capi- tal stock of the company and the number of shares into which the same may be divided, and under their direction subscrip- tion books may be opened to obtain stock, all other persons having an equal right with said original corporators to subscribe for stock until the full amount of said capital stock is sub- scribed. When a sufficient amount of stock is subscribed, no- tice, personal or by advertisement in a newspaper where the principal office of the corporation is to be kept, is to be given of the time and place of an election of officers. The result of all elections is to be determined by a majority of the votes cast, each share to represent one vote. SEC. 39. Directors may increase Capital. The board of di- rectors may at any time increase the capital stock if the neces- sities of the corporation, in their estimation, require said in- crease. SEC. 40. May enter upon private lands. The company, by its officers or agents, may enter upon the lands of private per- sons for the purpose of making surveys, estimates, and location of route. SEC. 41. Shares of stock personalty. The stock is to be impressed with the character of personal property. We, the undersigned, apply to the State of Tennessee, by virtue of the law of the land, for a charter of incorporation for 424 ORIGINAL CHARTER M. T. & A. BRANCH the purposes and with the powers, etc., declared in the forego- ing instrument. Witness our hands, this twentieth day of July, 1887. G. C. SANDUSKY, JO D. WlLHOITE, R. P. FRIERSON, W. W. GILL, B. M. TlLLMAN, FELIX G. BUCHANAN, J. W. RAWLS, J. H. HOLMAN, G. W. MORGAN, W. H. FROST. STATE OF TENNESSEE, ) Bedford County, \ Personally appeared before me, Will J. Muse, clerk of the county court of said county, the above named, G. C. Sandusky, Jo D. Wilhoite, R. P. Frierson, W. W. Gill, and B. M. Till- man, the bargainers, with whom I am personally acquainted, and who acknowledged that they executed the within instru- ment for the purposes therein contained. Witness my hand, at office, twentieth day of July, 1887. WILL J. MUSE, Clerk. By J. MARSHALL, D. C. STATE OF TENNESSEE, | Lincoln County. } Personally appeared before me, E. S. Wilson, clerk of the county court of Lincoln county, said state, Felix G. Buchanan, J. W. Rawls, J. H. Holman, and G. W. Morgan and W. A. Frost, the bargainers, with whom I am personally acquainted, and acknowledged that they executed the foregoing instrument for the purposes therein containe,d. Witness my hand, at office, twenty-sixth day of July, 1887. E. S. WILSON, Clerk. The foregoing- charter was- registered in the register's office of Lin- coln county, in Trust Deed Book No. 8, p. 22-31, on July 26, 1887. It was registered in the secretary of state's office at Nashville, Tenn., July 28, 1887, in book "F," p. 157. NASHVILLE, CHATTANOOGA erty, together with all and singu- lar the tenements, hereditaments, and appurtenances thereto belonging or in any way appertaining thereto; and all the rev- enues, reversions, and remainders, choses in action, estates, rights, titles, interests, properties, possessions, claims and de- mands whatsoever, as well in law as in equity, formerly of the said Decatur, Chesapeake & New Orleans Railway Company, or of the Middle Tennessee & Alabama Railway Company, or of the said Joseph Dickson, in and to the aforesaid property and premises, or any part thereof, and all rights, powers, and privileges and franchises now or at any time hereafter held or acquired by the Middle Tennessee & Alabama Railway Com- pany or the said Joseph Dickson, connected with or relating to said line of railway, or other property hereby conveyed or intended to be conveyed by the deeds of trust, which are ordered to be foreclosed under said decree, for the uses and purposes thereof, or for the construction, maintenance, uses, or enjoy- ment of the same; and all corporate franchises of the Middle Tennessee & Alabama Railway Company of every nature, in- cluding the franchise to be a corporation; also all the lands, tenements, and hereditaments, rights of way, and easements now held or hereafter acquired by the Middle Tennessee & Ala- bama Railway Company, or the said Joseph Dickson, for the purposes of said line of railway, and for the purposes of .depots, stations, turnouts, rights of way, or terminal facilities in con- nection with said line of railway. It being the same property conveyed to the said Joseph Dickson by H. M. Doak, as spe- cial master of the circuit court of the United States for the middle district of Tennessee, and the circuit court of the United States for the northern district of Alabama, by deed dated May 17, 1897, which deed is registered in the R. O. B. C., Tenn., in book No. 5, p. 54; in the R. O. M. C. , Tenn., in book No. 6, pp. 236, 244; in the R. O. L. C., Tenn., in deed book No. " EE," p. 85-91; in the judge of probate court of Madison county, Alabama, in vol. 80 of deeds, p. 429, to which refer- ence is also made for a more perfect description. 438 DEED AND ACTS RELATING TO M. T. & A. BRANCH Together with the right of way over the several tracts of ground conveyed by R. D. Warren and Earnest Caldwell to the said Joseph Dickson by deed dated June 28, 1897, and registered in the register's office of Lincoln county, Tenn., in deed book " EE, " p. 67, to which reference is here made for a more perfect description, and which several tracts of ground were also transferred to the said R. D. Warren and Earnest Caldwell by the following mentioned parties: (1) A right of way through the lands of N. Waites, being sixty-six feet in width, said deed being executed January 25, 1893, and registered in R. O. L. C., Tenn., in deed book " BB," p. 200-1, to which reference is here made for a more perfect description. (2) A right of way through the lands of James H. Deford, one hundred feet in width, a deed to which was executed Janu- ary 27, 1893, and registered in the R. O. L. C., Tenn., in deed book "BB," p. 221-2, reference to which is here made for a more perfect description. (3) A right of way through the lands of M. J. Farrar, be- ing fifty feet in width on either side of center of the track, a deed to which was executed January 27, 1893, and registered in the R. O. L. C., Tenn., in deed book "BB," p. 216-17, to which reference is here made for a more perfect description. (4) A right of way through the lands of A. N. Bryan, be- ing one hundred feet in width, a deed to which was executed January 7, 1893, and registered in the R. O. L. C., Tenn., in book " BB, " p. 219-20, to which reference is here made for a more perfect description. (5) A right of way over the lands of Rufus Smith, being sixty feet in width, a deed to which was executed January 28, 1892, and registered in the register's office of Lincoln county, Tenn., in deed book "B B," p. 205-6, to which reference is here made for a more perfect description. (6) A right of way over the lands of D. A. Hobbs, of fifty feet in width, a deed to which was executed January 28, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book " B B, " p. 204-5, and to which reference is here made for a more perfect description. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 439 (7) A right of way over the lands of Parkinson and Faulk- inberry, of one hundred feet in width, a deed to which was executed January 28, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book "BB," p. 218-19, to which reference is here made for a more perfect description. (8) A right of way through the lands of Austin Eslick, of sixty-six feet in width, a deed to which was executed January 28, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book "BB," p. 194-5, to which refer- ence is here made for a more perfect description. (9) A right of way through the lands of R. L. Farrar, of sixty feet in width, a deed to which was executed January 27, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book "B B," p. 193-4, to which reference is here made for a more perfect description. (10.) A right of way over the lands of M. N. Rowell and N. A. Rowell, of one hundred feet in width, a deed to which was executed January 27, 1892, and registered in the register's office of Lincoln county, Tenn., in deed book " B B," p. 202-3, to which reference is here made for a more perfect description. (11) A right of way over the lands of W. R. Bryant, of one hundred feet in width, a deed to which was executed January 27, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book "B B," p. 221, to which refer- ence is here made for a more perfect description. (12) A right of way over the lands of H. D. Parks, of fifty feet in width, a deed to which was executed January 25, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book "B B," p. 189-90, to which reference is here made for a more perfect description. (13) A right of way over the lands of J. C. Shofner, of one hundred feet in width, a deed to which was executed January 25, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book " BB," p. 190-1, to which refer- ence is here made for a more perfect description. (14) A right of way over the lands of T. J. Russell and M. 440 DEED AND ACTS RELATING TO M. T. & A. BRANCH E. Russell, of one hundred feet in width, a deed to which was executed January 25, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book " B B," p. 191-2. (15) A right of way over the lands of N. C. Sulser, of one hundred feet in width, said deed being executed January 28, 1893, and registered in the register's office of Lincoln county, Tenn., in deed book "B B, " p. 201-2, to which reference is here made for a more perfect description. Of the consideration above referred to, two hundred and seventy-five thousand dollars ($275,000) of the said bonds, with interest from July 1, 1897, have been delivered and paid to the said Joseph Dickson, the receipt of which is hereby acknowledged, and the remaining twenty-five thousand dollars ($25,000) of said bonds are to be retained by said Nashville, Chattanooga & St. Louis Railway until all taxes, liens, judg- ments or decrees existing against said properties herein con- veyed, either in the State of Tennessee or Alabama, or in the federal courts, shall have been fully paid off, satisfied and dis- charged, and until all claims, demands, right of actions that may be a lien on the said properties or enforceable against the said Nashville, Chattanooga & St. Louis Railway by virtue of its having purchased the same, shall have been fully paid off, settled, and discharged by the said Joseph Dickson, and until all the terms, conditions, and provisions of a contract this day entered into between the said Joseph Dickson and the said Nashville, Chattanooga & St. Louis Railway have been fully performed by the said Joseph Dickson. No lien is retained on the road or properties herein conveyed, however, for the pay- ment of said twenty-five thousand dollars ($25,000) of bonds so retained. To have and to hold the said line of railway, rights, fran- chises, privileges, immunities, easements, properties, leases, leaseholds, rights of use of other roads, estates, real, personal or mixed, with its appurtenances, estates, title, and interests thereto belonging to the said Nashville, Chattanooga & St. Louis Railway, its successors and assigns forever. And we do covenant with the said Nashville, Chattanooga & NA8HVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 441 St. Louis Railway that we are lawfully seized and possessed of said line of railway, rolling stock, and properties in fee simple, and have a good right to convey them, and the same is unin- cumbered. And we do further covenant and bind ourselves, our heirs and representatives, to warrant and forever de- fend the title to the said rolling stock and to the said line of railway, right of way, privileges and franchises from Fayetteville, Tenn., to Madison Cross Roads, Ala., to the Nashville, Chattanooga & St. Louis Railway, its successors and assigns, against the lawful claims of 'all persons whomso- ever. And we do further covenant and bind ourselves, our heirs and representatives, to indemnify, protect and hold harmless the said Nashville, Chattanooga & St. Louis Rail- ., . 11 warranty, way, its successors and assigns, against all mcuni- brances or liens against the properties herein conveyed, existing by decree, judgment or petition, in any of the courts of Alabama or Tennessee, or in the federal courts, or any that are prior to the mortgages of the old Middle Tennessee & Ala- bama Railway Company, under which the foreclosure proceed- ings were had. We further agree and bind ourselves, our heirs and repre- sentatives, to indemnify and protect and hold harmless the said Nashville, Chattanooga & St. Louis Railway against all claims, demands, or rights of action, either of a legal or equi- table nature, or which could be enforceable against the said Nashville, Chattanooga & St. Louis Railway by virtue of its purchase of said railway, rolling stock, right of way, real estate, franchises, etc., and further warrant that 30-foot right Of W4V L)dr~ the right of way from Fayetteville, Tenn., to Madi- anteed. where, son Cross Roads, Ala., is of the width of at least thirty (30) feet on either side of the center of the road. Witness our hands and seals, this the thirteenth day of Octo- ber, 1897. JOSEPH DICKSON, PAULINE M. DICKSON. 442 DEED AND ACTS RELATING TO M. T. A A. BRANCH STATE OF TENNESSEE, ) County of Davidson . f Personally appeared before me, John J. Norton, a notary public in and for said county and state, the within named Jo- seph Dickson and Pauline M. Dickson, the bargainers, with whom I am personally acquainted, and who acknowledged that they executed the within instrument for the purposes therein contained. And the said Pauline M. Dickson, wife of the said Joseph Dickson, having appeared before me privately and apart from her husband, the said* Pauline M. Dickson acknowledged the execution of the said instrument to have been done by her freely, voluntarily, and understandingly, without compulsion or constraint from her said husband, and for the purposes therein expressed. Witness my hand and official seal, at Nashville, Tenn., this thirteenth day of October, 1897. [SEAL.] JOHN J. NORTON, Notary Public. STATE OF TENNESSEE, ) Davidson County, f I, John J. Norton, a notary public in and for said state and county, hereby certify that Joseph Dickson and his wife, Pauline M. Dickson, whose names are signed to the foregoing conveyance, and who are known to me, acknowledged before me, on this day, that being informed of the contents of the conveyance, they executed the same voluntarily on the day the same bears date. Given under my hand and seal of office, this thirteenth day of October. A.D. 1897. [SEAL.] JOHN J. NORTON, Notary Public. STATE OF TENNESSEE, ) Davidson County. \ I, John J. Norton, a notary public in and for said state and county, do hereby certify that on the thirteenth day of Octo- ber, 1897, came before me the within named Pauline M. Dickson, known to me to be the wife of the within named Jo- seph Dickson, who, being examined separate and apart from NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 443 the husband touching her signature to the within deed, ac- knowledged that she signed the same of her own free will and accord, and without fear, constraint, or threats on the part of the husband. In witness whereof, I hereto set my hand and seal of office, this thirteenth of October, A.D. 1897. [SEAL.] JOHN J. NORTON, Notary Public. The foregoing deed is registered in the following counties and states in the books named: (1) Bedford county, Tenn., March 14, 1898, in book 5, p. 394. (2) Moore county, Tenn., March, 14, 1898, in book 6, p. 406. (3) Lincoln county, Tenn., March, 14, 1898, in book "FF," p. 27. (4) Madison county, Ala., March 15, 1898, in vol. 83 of Deeds, p. 231. (5) Limestone county, Ala., March 19, 1898, in vol. 58 of Deeds, p. 379. DECREE CONFIRMING SALE TO JOS. DICKSON. IN THE CIRCUIT COUKT OF THE UNITED STATES FOB THE MIDDLE DISTRICT OF TENNESSEE. THE STATE TRUST COMPANY, COMPLAINANT, v. THE MIDDLE TENNESSEE & ALABAMA RAILWAY COMPANY AND JOSEPH DICKSON, DEFENDANTS. This cause having been submitted for decree upon the report of the special master, H. M. Doak, heretofore appointed in this cause by this court, and in the cause pending in the circuit court of the United States for the northern division , /nasicr s re- of the northern district of Alabama, which said *> confirmed, proceeding is in the nature of an ancillary bill to the bill tiled in this court as an original bill; and now, upon motion of coun- sel on behalf of the complainant, it is ordered, adjudged, and decreed that the said report be, and the same is hereby, in all things confirmed. And it further appearing to the court from said report, that 444 DEED AND ACTS RELATING TO M. T. e sold by J. H. Watson and J. B. Clough, as special masters. On October 17, 1895, at 12 o'clock, at the court- house door in Memphis, Tenn., the railroad properties, fran- chises, etc., were sold in conformity with the terms of the decree, and J. W. Phillips became the purchaser at the sum of $1,000,000, which was the highest, last, and best bid. Sub- sequently the special masters executed to him a deed to said property, which deed was registered in Shelby county, Tenn., August 10, 1896, in record book 250, p. 206; in Henderson county, Tenn., December 23, 1895, in record book 14, pp. 225- 230; in Hardeman county, Tenn., December 23, 1895, in book "J J" of deeds, p. 473; in Decatur county, Tenn., December 24, 1895, in book 13, pp. 107-111; in Madison county, Tenn., December 23, 1895, in deed book 54, p. 16; in 456 ABSTRACT OF TITLE OF MEMPHIS BRANCH Fayette county, Term., December 31, 1895, in record book 20, pp. 485-490. The receivers of the company, William L. Huse and John Overtoil, Jr., also executed a deed conveying to J. W. Phil- lips all their right, title, and interest in and to said road, prop- erty, franchises, etc. This deed was registered in Shelby county, Tenn., August 11, 1896, in book 250, p. 215; in De- catur county, December 24, 1895, book 13, p. 117; in Harde- man county, December 31, 1895, book "J J" of deeds, p. 481; in Fayette county, December 31, 1895, book 20, p. 495; in Madison county, December 26, 1895, book 54, p, 26; in Henderson county, December 23, 1895, book 14,, pp. 337-341. The company itself also executed a deed conveying to J. W. Phillips all its right, title, and interest in and to said railroad, property, franchises, etc. This deed was registered in Shelby county, August 10, 1896, in book 250, p. 211; in Henderson county, December 23, 1895, in book 14, p. 333; in Hardeman county, December 28, 1895, in book " J J" of deeds, p. 477; in Madison county, December 24, 1895, in book 54, p. 22; ija Decatur county, December 24, 1895, in book 13, pp. 113-117; in Fayette county, December 31, 1895, in book 20, pp. 491-494. On December 14, 1895, J. W. Phillips sold said road, prop- erties, franchises, etc., to the Louisville & Nashville RaHroad Company, and executed a deed therefor. Said deed, together with the books and pages where it is registered in the various counties, may be found herein. See next chapter. On December 14, 1895, the Louisville & Nashville Railroad Company executed a temporary lease of this road, together with the Paducah, Tennessee & Alabama Railroad, to the Nashville, Chattanooga & St. Louis Railway. This lease is fully set out in the next chapter, showing the places of regis- tration. For deed of Louisville & Nashville Railroad Company to the Paducah, Tennessee & Alabama Railroad, see chapter 41 herein. On September 9, 1896, a permanent lease of the two roads was drawn up and signed by the Louisville & Nashville Rail- N VSHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 457 road Company and the Nashville, Chattanooga & St. Louis Railway, resj>ectively, for a period of ninety-nine years from date, at a rental of $154,650 per annum, payable semiannu- ally. This was five per cent, on the amount paid by the Louis- ville & Nashville Railroad Company ($3,093, 000) for the two roads. The lease further provided that, should the Louisville & Nashville Railroad Company be called upon to expend addi- tional sums for improvements, etc., on the two roads, an additional rental should be paid of tive per cent, on the amount or amounts so expended. This lease is also fully set out in the next chapter. Legality of lease; Rogers' suit. There can be no question but that under the laws of the State of Tennessee both the Louisville & Nash- ville Railroad Company and the Nashville, Chattanooga & St. Louis Rail- way had the power to execute this lease under the Acts of Tennessee, 1877, ch. 12, 2; Acts, 1869-70, ch. 49, p. 337, $4; Acts, 1871, ch. 69; Acts, 1881, ch. 9, p. 10, 2; Acts, 1891, ch. 61, p. 146, and ch. 125 of same Act, p. 274; Acts, 1877, ch. 20; Code Tenn. (Shannon;, 1514. The Louisville fe Nashville Railroad Company had the power origi- nally to purchase the road from Phillips, under Acts Tennessee. 1877, ch. 20. The only remaining question is whether or not, in attempting to exercise the power to lease, the respective companies followed the stat- ute. This question was raised by J. S. Rogers, one of the stockholders of the Nashville, Chattanooga fc St. Louis Railway, who filed a bill Jan- uary 30, 1897, in the circuit court of the United States for the middle district of Tenas-jsee (in equity), at; Nashville, seekinsr to DrktrAfc' flC have the lease canceled: First, because the contract was fraudulently imposed upon the Nashville, Chattanooga & St. Louis Rail- way by the Louisville & Nashville Railroad Company, through iU con- trolling influence as a majority stockholder; second, because the contract was itltrii vires; and, third, because, if neither void as ultra vires nor voidable for fraud, it was such a contract as eould not be legally con* summated without ratification by a three-fourths vote of the bharehold- ers. A demurrer was filed to this bill by the railroad companies, and sustained by the circuit judge. An appeal was taken to the United States circuit court of appeals, and a decision rendered by that court November 9, 1898. Judge Lurton, in rendering the opinion of the court, held in substance: (1) That the Louisville & Nashville Railroad Company had a sound legal title to the road, franchises, etc.. of the Tennessee Midland Rail- way and to the Paducah, Tennessee & Alabama Railroad, which would support the lease unless subject to other objections. (2) That the Nashville, Chattanooga & St. L >uis Railway had the power, under the laws of Tennessee, to accept such a lease. 458 ABSTRACT OF TITLE OF MEMPHIS BRANCH (3) That the leased lines were in no manner parallel or competing lines with the Nashville, Chattanooga& St. Louis Railway. (4) That the Louisville & Nashville Railroad Company had the power to dispose of the roads by lease or otherwise in the same manner and to the same extent that the old corporations might have done that is, that the Paducah, Tennessee & Alabama Railroad Company and the Tennes- see Midland Railway Company could have done. (5) That the Louisville & Nashville Railroad Company had the power to acquire, hold, and vote the shares of the capital stock of the Nash- ville, Chattanooga & St. Louis Railway. (6) That it could vote it for directors, and even on all questions in which it was interested. (7) That the amendment of the charter of the Nashville, Chattanooga & St. Louis Railway passed in 1875, giving each of the stockholders the right to one vote for each share of stock held, was legal. (8) That the fact that the directors were elected by the holder of the majority of the stock did not make them agents of that interest, nor raise any legal presumption that they are or would be unfaithful to the true and general interests of the corporation. (9) That a stockholder is not a trustee, and holds and acts for himself alone, and, hence, can contract with the company, but cannot use this power of control to obtain advantage for himself at the expense of the minority stockholders. (10) That Rogers had the right to prosecute the suit in his own name without calling upon the board of directors to prosecute it. (11) That the lease could not be made without the consent of a ma- jority of three-fourths in amount of the stockholders of the Nashville, Chattanooga & St. Louis Railway present and voting. The case was reversed and remanded for a new trial, and is still pending. The opinion of Judge Lurton has not, at this writing, been published in any of the reports. Distance road built When leased. The Tennessee Midland Railway Company was chartered to extend from Memphis to a point on the Virginia state line, at or near its crossing of Clinch river in Hancock count} 7 . At the time of the lease, however, the road had only been constructed from Memphis to Perry - ville, on the Tennessee river. It has not since been extended. (1) The Paducah, Tennessee & Alabama Railroad connects with the Tennessee Midland Railroad at Lexington, Tenn.. and runs northwardly to Paducah, Ky. For charter, etc., of the former road, see chapter 40 herein. (2) A charter was also taken out on December 18, 1886, for a company called the "Tennessee Midland Railway Company," to run from Nash- ville to Knoxville, via Lebanon. It may be found recorded in the sec- retary of state's office, in book " F," p. 157. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 459 Width Of right Of way. The Tennessee Midland Railway Company was chartered under the general Acts of Tennessee, 1875, ch. 142, sec. 6. In these charters there are no clauses granting specified numbers of feet as a right of way, in the absence of any contract with the original landowner, as was done in the charter of the Nashville, Chattanooga & St. Louis Railway. Section 9 of the charter, however, provided that the said company shall have the right to appropriate, as an easement, a right of way not exceeding two hundred feet one hundred on each side of the center line of said road over the land of any person through which the line of track may be located. Under this section, the Tennessee Midland Railway Company could have originally condemned any number of feet up to and including two hundred feet for a right of way. Whatever number of feet was originally condemned, however, would now be binding upon the Nashville, Chattanooga & St. Louis Railway and the Louisville & Nashville Railroad Com- pany, unless an additional or successive appropriation be made.* Should no purchase or condemnation have been had at all, then the entry and construction of the road would be regarded as an appropriation of so much of the land as the law authorized, which is two hundred feet in Tennessee, and the Louisville & Nashville Railroad Company and its lessee, the Nashville, Chat- tanooga & St. Louis Railway, as the lawful purchaser and lessee, respectively, of said railroad, would be entitled to that numl>er. 3 Lea (Tenn.), 478. If a purchase or gift from the landowner was made, then, of course, the deed would control, if mention is made of the width therein. If no width is specified, then the law presumes the statutory width of two hundred feet was intended. 98 Ala., 647. See, also, 3 Lea (Tenn.), 478. *(1) For full discussion of right to make successive appropriations, etc., see "Eminent Domain," " Right of Way." herein. Refer to Index. ORIGINAL CHARTER OF THE TENNESSEE MID- LAND RAILWAY COMPANY. [Chartered under general Acts Tennessee, 1875. ch. 142, 6.] SECTION i. Incorporation, name, route, general powers. Be it known. That A. S. Buford, J. B. Pace, E. D. Christian, 460 ORIGINAL CHARTER OF MEMPHIS BRANCH Charles Watkins, Thomas C. Williams, T. C. Leake, Jr., R. H. Temple, James T. Gray, J. J. Montague, A. L. Crawford, W. D. Bethel, Napoleon Hill, John Overton, Jr., J. M. Ham- ilton, and Nathaniel Baxter, Jr., are hereby constituted a body politic and corporate by the name and style of "Tennessee Midland Railway Company,'' for the purpose of conducting and operating a railway from Memphis, in the county of Shelby, to a point on the Virginia state line at or near its cross- ing of Clinch river, in the county of Hancock, with two branch roads from convenient points on the main line, the one to Co- lumbia, in the county of Maury, and the other to Knoxville, in the county of Knox. (1) Charter amended, may change termini. By Acts Tennessee, 1887, ch. 39, <5g 1, 2, all railroad companies chartered under the general laws of this state may, by resolution of board of directors, change either terminus before the final location of the road. See act itself for method. (2) Arbitration. By-laws for arbitration sustained. 7 Pickle (Tenn.), 64. (3) Branches. By Acts Tennessee, 1889, ch. 158, all railroad compa- nies chartered under the general laws are allowed to build branch roads in certain cases. See act itself. SEC. 2. General powers. The general powers of said cor- poration are, to sue and be sued by the corporate name, to have and use a common seal, which it may alter at pleasure; if no common seal, then the signature of the name of the corpo- ration by any duly authorized officer shall be legal and binding: to purchase and hold or receive by gift, in addition to the per- sonal property owned by said corporation, any real estate necessary for the transaction of the corporate business, and also to purchase or accept any real estate in payment, or part payment, of any debt due to the corporation, and sell realty for corporation purposes; to establish by-laws and make all rules and regulations not inconsistent with the laws and the constitu- tion deemed expedient for the management of corporate affairs; to appoint such subordinate officers and agents, in addition to the president and secretary or treasurer, as the business of the corporation may require; to designate the name of the office and tix the compensation of the officer. NASHVILLE, CHATTANOOGA e copied on the minutes, subject at all times to the inspection of any stockholder. The books of the corporation shall show the original or subsequent stockholders, their respective interests, the amount which has been paid on the shares subscribed, the transfer of stock, by and to whom made; also other transac- tions in which it is presumed a stockholder or creditor may have an interest. SEC. 5. Unpaid StOCk. The amount of any unpaid stock due from a subscriber to the corporation shall be a fund for the payment of any debts due from the corporation, nor shall the transfer of stock by any subscriber relieve him from pay- ment, unless his transferee has paid up all or any of the bal- ance due on said original subscription. See 10 Pick. (Tenn.), 154, 608. i62 ORIGINAL CHARTER OF MEMPHIS BRANCH SEC. 6. Express and implied powers. By no implication or construction shall the corporation be deemed to possess any powers except those hereby expressly given or necessarily im- plied from the nature of the business for which the charter is granted, and by no inference whatever shall said corporation possess the power to discount notes or bills, deal in gold or silver coin, issue any evidence of debts as currency, buy and sell any agricultural products, deal in merchandise, or engage in any business outside the purpose of the charter. SEC. 7. Charter may be repealed or amended. The right is reserved to repeal, annul, or modify this charter. If it is repealed, or if the amendments proposed, being not merely aux- iliary but fundamental, are rejected by a vote representing more than half of the stock, the corporation shall continue to exist for the purpose of winding up its affairs, but not to enter upon any new business. If the amendments or modifications, being fundamental, are accepted by the corporation as afore- said, in a general meeting to be called for that purpose, any minor, married woman, or other person under disability, or any stockholder not agreeing to the acceptance of the modification, shall cease to be a stockholder, and the corporation shall be liable to pay said withdrawing stockholders the par value of their stock, if it is worth so much; if not, then so much as may be its real value in the market on the day of the with- drawal of said stockholders as aforesaid; Provided, That the claims of all creditors are to be paid in preference to said with- drawing stockholders. The charter of the Nashville, Chattanooga & St. Louis Railway can- not be amended without consent of company. See sec. 34 of the charter. SKC. 8. Directors, powers Of. A majority of the board of directors shall constitute a quorum, and shall fill all vacancies until the next election. The first board of directors shall con- sist of the five or more corporators who shall apply for and obtain the charter. The said corporation may have the right] to borrow money and issue notes or bonds upon the faith of the corporate property, and also to execute a mortgage or mortgages as further security for repayment of money thus borrowed. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 463 The above part in brackets (sec. 4 to fifth line of sec. 8) is included in all charters under the Acts of 1875, ch. 142, and amendments thereto, but, for some reason, was left out of this charter, as will appear from the copy in the secretary of state's office, in book " F," p. 100. It should have been inserted, as the statutory charter cannot be altered at the will of the parties. SEC. 9. Right Of way two hundred feet. The said corpora- tion shall have the right, in pursuance of the general law authorizing the condemnation of private property for works of internal improvement, as set forth in 1325 to 1348 in the code (loth inclusive), to appropriate as an easement the right of way, not exceeding two hundred feet, over the land of any person through which the line of the track may be located. Said sections of the code are hereby literally copied and in- serted, in the words and figures following: SEC. 10 (1325). Land may be taken, how. Any person or corporation authorized by law to construct any railroad, turnpike, canal, toll bridge, road, causeway, or other work of internal improvement to which the like privilege is con- ceded, may take the real estate of individuals not exceeding the amount prescribed by law, or by the charter under which the person or corporation acts, in the manner and upon the terms herein provided. (Iowa code, 1851, 759.) (1) Disability of owner does not affect right. The right to take land under the power of eminent domain is not restricted by any dis- ability of the owner, who is entitled to demand and receive the value of the property, but must show title. 3 Head (Tenn.), 63-65. (2) Uy Acts Tennessee, 1885, ch. 135, the operation of this and succeed- ing sections was extended so as to apply and include the condemnation and taking of the property, privileges, rights, or easements of private corporations. See act itself for method. (3) By Acts ISS'.i, p. 447, as embodied in Shannon's -Code, % 1879, it was made unlawful to construct or use any steam railway on any county road or highwaj*. without the consent of the county court, to be granted in a method therein set out. SEC. 11 (1326;. Proceedings, etc. The party seeking to appropriate such lands shall file a j>etition in the circuit court of the county in which the land lies, setting forth in substance: (1) The parcel of land a portion of which is wanted, and the extent wanted; (2) the name of the owner of such land, or, if 4:64: ORIGINAL CHARTER OF MEMPHIS BRANCH unknown, stating the fact; (3) the object for which the land is wanted; (4) a prayer that a suitable portion of land may be decreed to the petitioner and set apart by metes and bounds. (Iowa code, 1851, 760.) Petition need not be sworn to. SEC. 12 (1327). Notice to Owner. Notice of this petition shall be given to the owner of the land, or, if a nonresident of the county, to his agent, at least five days before its presenta- tion. (/#., modified.) SEC. 13 (1328). Where owner nonresident if the owner is a nonresident of the state, or unknown, notice shall be given by publication as provided in this code in similar cases in chan- cery. SEC. 14: (1329). Proceedings only bind parties. All parties having any interest in any way in such land may be made defendants, and the proceedings will only cover and affect the interest of those who are actually made parties, unborn remain- dermen being, however, bound by proceedings to which all living persons in interest are parties. Tenants for life, years, and reversioners are interested parties, and must be compensated. 2 Head, 65, 176. SEC. 15 (1330). Writ of inquiry of damages. After the requisite notice has been given, if no sufficient cause to the con- trary is shown, the court shall issue a writ of inquiry of dam- ages to the sheriff, commanding him to summon a jury to inquire and assess the damages. (Iowa Code, 1851, 763.) SEC. 16 (1331). Clerk to issue writ, sheriff to summon jury. By consent of parties, or on application of the plaintiff, unless objection is made by the defendant, the writ of inquiry may be issued by the clerk as of course, after service of notice, on which the sheriff will summon the jur} r . SEC. 17 (1332). Jury to be disinterested. The jurors shall not be interested in the same or a similar question, and shall possess the qualifications of other jurors, and may be nominated by the court, selected by consent of the parties, or summoned by the sheriff. SEC. 18 (1333). Failure to attend. If named by the court, NASHVILLE, CHATTANOOGA actually taken possession of such land, occupying it for the purpose of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceed- ings may be had, as near as may be, as hereinbefore provided; or, he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds, and assess the damages as upon the trial of an appeal from the return of a jury of inquest. See 2 Head, 174, 65; 3 Lea, 480; 13 Lea, 670. SEC. 33 (1348). Limitation of proceedings by owner. The owners of land shall, in such cases, commence proceedings within twelve months after the land has been actually taken possession of, and the work of proposed internal improvement begun, saving, however, to unknown owners and nonresidents twelve months after actual knowledge of such occupation, not exceeding three years, and saving to persons under disabilities of infancy, coverture, and unsoundness of mind twelve months after such disability is removed, but not exceeding ten years. See 12 Heis., 623. See, also, ' Eminent Domain. "herein; refer to index. [SEC. 34. Gauge; transportation charges; construction of tracks On highways. The corporation is authorized to adopt such gauge as they may prefer. The charge for transportation shall not exceed twenty-five cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measure- ment, for every hundred miles transported, and four cents per mile for every passenger, with power to make special contracts with shippers on their roads in regard to rate of freight, so as not to exceed the amounts herein designated. The line of track of the road shall be so constructed so as not to interfere with convenient travel of the public along the highways, coun- 468 ORIGINAL CHARTER OF MEMPHIS BRANCH try roads, streets and alleys of cities, towns, and villages, and so as to allow carts, wagons, carriages, and other vehicles con- veniently and safely to pass over or under the line of the track, and so as not to intercept traveling on foot or horseback, or in vehicles of any kind, from the necessary and proper use of the public roads, streets, or alleys, in the usual and proper mode for their convenience. By Acts Term., 1885, ch. 20, all railroad companies in the state were authorized to select and alter the gauge of their road at pleasure. SEC. 35. Crossings; Signboards. Boards well supported by posts, or otherwise, shall be placed and constantly kept across each public road, when the same is crossed on the same level by the track of the railway, the boards to be elevated so as not to obstruct travel, and on each side of said boards there shall be printed in large letters, easily to be seen by the trav- eler, the words " Railroad Crossing Look out for the Cars." Said boards need not be put up at the crossing of streets and alleys in cities, towns, and villages, but such railroad company shall be subject to such proper regulations made by municipal authorities in pursuance of general municipal powers, regulat- ing speed, passage, and flagman in such municipalities and at crossings; and when there are sidings and switches, the whistle shall always be blown at a distance of not less than two hun- dred and fifty yards from every crossing of a public road. When land on both sides of the track is owned by the same proprietor, convenient crossings shall be made and kept up at the expense of the corporation, for the use of said proprietor, and all necessary cow-gaps made. SEC. 36. Regulations for running trains; fare must be paid. The board of directors shall fix the regular times for the running of trains for the transportation of passengers and prop- erty, and shall furnish sufficient accommodations for the safe, comfortable, and convenient transportation, and shall take, transport, and discharge such passengers and property at, from, and to such places on the due payment of freights, tolls, and fare legally authorized to be charged therefor, and, in case of the refusal of said corporation, their officers or agents, to NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 469 take and transport any passenger, or to deliver the same, or either of them, at the regular and appointed time, such corpo- ration shall pay to the party aggrieved all damages thereby suffered, with costs of suit. If any passenger refuse to pay his toll or fare, the conductor may put him off the cars at any station or convenient point where said passenger can step on land. SEC. 37. Prohibited contracts ; must receive freight from Other roads. The corporation shall make no contract giving any person a preference in the speedy shipment of freights. This corporation shall receive on their road full freighted cars from other roads, and transport them, without breaking bulk, to the place of destination, charging for the goods, wares, and merchandise therein no greater rate of freight than is charged for similar goods, wares, and merchandise in their own cars, and return said cars free of charge; Provided, The cars thus to be received are good and substantial; And also provided. The distance said wares and merchandise are to be transported is not less than twenty miles. SEC. 38. Officers and directors, capital stock, shares, books. The said h've or more corporators shall, within a convenient time after the registration of this charter in the office of the secretary of state, select from their number a president, secre- tary and treasurer, or the last two offices may be combined into one, and shall not necessarily be stockholders, said president and the other corporators to constitute the first board of di- rectors. The board of directors may fix the amount of capital stock of the company and the number of shares into which the same may be divided, and under their direction subscription books may be opened to obtain stock, all other persons having an equal right with said original corporators to subscribe for stock until the full amount of said capital stock is subscribed. When a sufficient amount of stock is subscribed, notice, per- sonal or by advertisement in a newspaper where the principal office of the corporation is to be kept, is to l>e given of the time and place of an election of officers. The result of all elections is to be determined by a majority of the votes cast, each share to represent one vote. 470 ORIGINAL CHARTER OF MEMPHIS BRANCH SEC. 39. Directors may increase Capital. The board of di- rectors may at any time increase the capital stock if the neces- sities of the corporation, in their estimation, require said in- crease. SEC. 40. May enter upon private lands. The company, by its officers or agents, may enter upon the lands of private per- sons for the purpose of making surveys, estimates, and location of route. SEC. 41. Shares of stock personalty. The stock is to be impressed with the character of personal property.] The above part in brackets (sees. 34 to 41) is included in all charters under the Acts of 1875, ch. 142, and amendments thereto, but for some reason was left out of this charter, as will appear from the copy in the secretary of state's office of Tennessee, in book " F," p. 106. It should have been inserted, as the statutory charter cannot be altered at the will of the parties. We, the undersigned citizens, not under the age of twenty- one years, apply to the State of Tennessee, by virtue of the law of the land, for a charter of incorporation for the purposes and with the powers, etc. , declared in the foregoing instrument. Witness our hands, this twenty-eighth day of December, 1886. JAMES T. GRAY, W. D. BETHEL, J. M. HAMILTON, A. S. BUFORD, CHARLES WATKINS, T. C. LEAKE, JR., J. J. MONTAGUE, NAPOLEON HILL, NATHANIEL BAXTER, JR., J. B. PACE, E. D. CHRISTIAN, THOS. C. WILLIAMS, R. H. TEMPLE, A. L. CRAWFORD, JOHN OVERTON, JR. Witness as to all the signatures: Ro. L. TRAYLOR. NASHVILLE, CHATTANOOGA Temporary lease of both roads. N., C. & St. L. Ry. ) WHEREAS, On Friday, the eleventh day of October, 1895, at a sale held at Paducah, Kentucky, by the special masters of the circuit court of the United States for the district of Kentucky, at Paducah, and for the eastern division of the western district of Tennessee, at Jackson, pursuant to the final decree of fore- closure and sale made by the said circuit court for the district of Kentucky, at Paducah, and by the said circuit court for the eastern division of the western district of Tennes- see, at Jackson, in the suit pending in each of said courts of the St. Louis Trust Co., complainant, v. Paducah^ Tennessee & Alabama Railroad Co. , defendant, J. W. Phillips, of the city of St. Louis, and State of Missouri, became the pur- chaser of the property described in said final decree of foreclos- ure and sale, to wit: The railroad of the Paducah, Tennessee & Alabama Railroad Company as therein described, and each and all the other property, rights, franchises, and things of every kind and nature described in, and directed to be sold by, said decree. For a more particular description of all of which, reference is made to said final decree of foreclosure and sale in said suits; and, WHEREAS, On Thursday, the tenth day of October, 1895, at a sale held at Memphis, Tennessee, by the special masters of the circuit court of the United States for the western division of the western district of Tennessee, at Memphis, pursuant to NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 473 the final decree of foreclosure and sale made by the said circuit court for the western division of the western district of Tennessee, at Memphis, in the suit pending therein of the /St. Louis Trust Co., complainant, v. Tennessee Midland Railway Co., defendant, said J. W. Phillips, of the city of St. Louis, State of Missouri, became the purchaser of the property described in said final decree of foreclosure and sale, to wit: The railroad of the Tennessee Midland Railway Company as therein described, and each and all the other prop- erty, rights, franchises, and things of every kind and nature described in, and directed to be sold by, said decree. For a more particular description of all which, reference is made to said tinal decree of foreclosure and sale in said suit; and, WHEREAS, Said J. W. Phillips has sold all of the above de- scribed property to the Louisville & Nashville Railroad Com- pany for the sum of three million one hundred and sixteen thou- sand ($3,116,000) dollars, on which the sum of one hundred thousand dollars has been paid in cash, in consequence of which payment said Louisville & Nashville Railroad Company has this day been let into possession of all the above described proper- ties, and the remainder of the amount, viz., three million and sixteen thousand dollars, with interest, is to be paid on or be- fore the expiration of six calendar months from this date, and, pending such payment in full, the instruments of transfer or conveyance of title of all of said properties are to be deposited in escrow with the Mechanics' National Bank, of the city of New York, to be by it delivered to the said Louisville & Nash- ville Railroad Company, or its assigns, on the payment to said Mechanics' National Bank of said balance and interest; and, WHEREAS, It is the intention of the parties hereto that all of said properties hereinabove described and referred to shall be leased, granted, and demised to the Nashville, Chattanooga & St. Louis Railway for the full term of ninety-nine years from this date, and the formal and permanent indenture of lease, containing all the various terms, conditions, and covenants upon which the same is made, is to be executed by said Louis- ville & Nashville Railroad Company to the s.iid Nashville, Chat- tanooga & St. Louis Railway so soon as the Louisville & Nash- 474 LEASES RELATING TO MEMPHIS BRANCH ville Railroad Company's title to the demised property shall be completed by the payment to said Mechanics' National Bank of the said balance and interest, and by the unconditional delivery to the Louisville & Nashville Railroad Company of said instru- ments of transfer or conveyance of the title of all of said prop- erties; and, meanwhile, it is desired that the said Nashville, Chattanooga & St. Louis Railway shall have possession of and operate all the properties hereinabove described and referred to. Know all men by these presents, That the Louisville & Nash- Conveyance v ^ e ^ a il roa ^ Company does hereby grant, demise, clause. anc j } ease t the Nashville, Chattanooga & St. Louis Railway all of the properties hereinabove described and referred to, from this date until the said formal and permanent lease hereinabove referred to shall be executed. To have and to hold the same unto the said Nashville, Chat- tanooga & St. Louis Railway, its successors and assigns, and said Nashville, Chattanooga & St. Louis Railway for itself, its successors and assigns, hereby agrees to take, have, and hold the same upon the following terms, conditions, and covenants, viz. : 1. The Nashville, Chattanooga & St. Louis Railway shall pay, semiannually, during the continuance of this lease, as rent Rent and ^ sa ^ properties above granted, demised, and now paid. leased, at the rate of one hundred and fifty-five thousand eight hundred dollars per annum, being five per cent, on three million one hundred and sixteen thousand dollars, said purchase price. 2. Said Nashville, Chattanooga & St. Louis Railway shall, during the continuance of this lease, keep, preserve, and main- Lessee to keep tain the properties hereby demised in good working road in good J repair. condition and repair as a first-class railroad, and will fully perform towards the public all obligations due to it from the Louisville & Nashville Railroad Company in respect to the properties hereby demised. 3. Said Nashville, Chattanooga & St. Louis Railway shall, Lessee to pay d lu 'i n g the continuance of this lease, pay all taxes and assessments of whatever nature or kind that may be levied or assessed against the properties demised, or NASHVILLE, CHATTANOOGA 4 ST. LOL'18 RAILWAY. 475 any part thereof, .and will preserve the said properties, and each and every part thereof, free from any lien or charge what- soever, by reason of any taxes or assessments of any kind or nature whatsoever; and said Nashville, Chattanooga & St. Louis Railway further agrees to discharge all obligations of every kind arising, which become, or might become, by judgment of court or otherwise, liens upon the demised properties or any part thereof. 4. So soon as the instruments or conveyances' for the proper- ties hereinabove described and referred to, from J. W. Phillips to the Louisville & Nashville Railroad Company, shall be de- livered unconditionally to the said Louisville & Nashville Rail- road Company by said Mechanics' National Bank, as aforesaid, and the said Louisville & Nashville Railroad Company shall execute and deliver to said Nashville, Chattanooga & St. Louis Railway a formal lease for the full term of ninety- Forma n ease nine years from this date for the properties herein- P rovldecl for - above described and referred to, this lease shall terminate and be of no further effect. It is understood between the parties hereto that it is the pur- pose of the Louisville & Nashville Railroad Company to execute a mortgage upon all the properties hereinabove described and referred to, for the purpose of securing the payment of bonds to be issued at the rate of 20,000 per mile for each mile of the railroads hereinabove described and referred to, making the total issue of bonds upon the mileage now existing rive mil- lion one hundred and twenty thousand dollars; and that this lease and the formal ami permanent lease to be hereafter exe- cuted between the parties, as hereinabove provided, are each and l>oth to be subject to the lien of the said mort- . 1 Lease to be gage, which said mortgage is to be executed when ^/-"A ^ the title of the Louisville & Nashville Railroad L -*N. R. R. Company shall be made complete by the unconditional delivery to it of the instruments of transfer or conveyance by the Me- chanics' National Bank as aforesaid. Of the said bonds, three million one hundred and sixteen thousand dollars are to l>e is- sued on account of the purchase price of said properties, as 476 LEASES RELATING TO MEMPHIS BRANCH aforesaid, and other of said bonds may be issued, from time to time, as agreed on by the parties hereto; or, in the event of Arbitration to disagreement, as determined by arbitration, on ac- be had. when. conn t o f permanent improvements and betterments of the demised properties, the total on this account not to ex- ceed one million two hundred and thirty-six thousand dollars in amount, and on account of purchase of additional equipment for the demised properties, the total on this account not to ex- ceed seven hundred and sixty eight thousand ($768,000) dol- lars, and the said Nashville, Chattanooga & St. Louis Railway Conditional * s ^ P a ^' un( ^ er the permanent lease, as rent and rent> additional rent, semiannually, at the rate of not more than five per cent, per annum on the amount of bonds issued to fund the first cost of the property, and to be issued from time to time for permanent improvements and better- ments, and for additional equipment. The terms of these last mentioned provisions, as well as all other matters pertaining to the lease, shall be set out in detail in the final and permanent lease to be hereafter executed, as hereinabove stated. An inventory containing a further description of the proper- ties demised is attached hereto and made a part hereof. In testimony whereof, the parties hereto have hereunto sub- scribed their names by their respective presidents, and affixed their respective corporate seals, attested by their respective secretaries, this the fourteenth day of December, 1895. Executed in duplicate. LOUISVILLE & NASHVILLE RAILROAD Co., [SEAL.] By M. H. SMITH, President. Attest: J. H. ELLIS, Secretary. NASHVILLE, CHATTANOOGA & St. Louis RAILWAY, [SEAL.] By J. W. THOMAS, President. Attest: J. H. AMBROSE, Secretary. Lease, where registered. The foregoing lease was properly acknowl- edged by both companies, and registered in the office of the county court of McCracken county, Ky., on April 18, 1896; in office of county court of Marshall county, Ky.. April 22. 1S96; in office of county court of Callo- way county, Ky. . April 27. 1896; in office of county court of Graves county, Ky., May 4, 1896; and in office of secretary of state of Kentucky, May 16, 1896. NASHVILLE, CHATTANOOGA e needed for the successful operation of said railroads, and the actual amounts ex|H?nded for such additional side tracks, depots, stations, and other buildings, elevators, warehouses, shops, machinery, and tools, and other additions, betterments, improvements, and ex- penditures to or upon said railroads as from time to time may be authorized by said board. It is agreed between the parties hereto that the first party, from time to time, will furnish the necessary money for the purchase or construction of such additional locomotives, cars, and other equipment as the parties hereto may agree u|x>n as necessary for the successful operation of the properties hereby 480 LEASES RELATING TO MEMPHIS BRANCH demised, and for the construction or acquisition of such addi- tional side tracks, depots, stations, and other buildings, eleva- tors, warehouses, shops, machinery, and tools, and for other additions, betterments, improvements, and expenditures to or upon the properties hereby demised, as may be agreed upon by the parties hereto, and the second party will devote the money so furnished exclusively to the purposes for which it was furnished, and will supply the first party with satisfactory evidence that the same has been so used, in order that the first party may, from time to time, as money shall be so furnished to and expended by the second party, obtain therefor, by giv- ing the necessary certificates and taking the necessary steps, bonds secured by said mortgage, as is provided in article third of said mortgage. If the parties hereto cannot agree, at any time, that money should be furnished under this article of this lease, or disagree as to the amount to be furnished, or as to the particular purposes for which it is to be or ought to be fur- nished, any such disagreement shall be submitted to and de- Arbitration cided by arbitration, as follows: Each of the par- provided for. ties hereto shall choose an arbitrator, and the two arbitrators so chosen shall choose an umpire; and thereupon the arbitrators and umpire shall hear and consider the subject of disagreement, and shall render their award in writing, which shall be final and binding upon the parties hereto. It is further agreed that the first party shall not be bound to furnish any money, under this article of this lease, for any pur- Conditionof pose unless it will be entitled to obtain therefor vances. bonds under article third of said mortgage, nor after the full amount of bonds authorized to be issued by said article third of said mortgage shall have been issued thereunder. ART. 4. It is further agreed that all additional locomotives, cars, and other equipment purchased or constructed from time to time under article third of this lease, and all such additional side tracks, depots, stations, and other buildings, elevators, warehouses, shops, machinery, and tools, and other additions, betterments, improvements, and expenditures to or upon the demised properties, made from time to time under article third NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 481 of this lease, shall immediately become a part of the demised properties, and the second party shall pay, as AW | ttolU | additional rent on that account, amounts equal to rent> when> five per cent, per annum on the amounts of money furnished the second party from time to time for the purchase or con- struction or making thereof under the third article of this lease, from the respective dates of the furnishing of such amounts until the termination of this lease. The first installment of such additional rent on account of any amount furnished under article third hereof is to be paid on the 1st day of March or on the 1st day of September, whichever may first succeed the date such amount was furnished, and thereafter such rent is to be paid in two equal semiannual installments on the 1st day of March and on the 1st day of September of each year. All such rent is to be paid at the first party's office in New York city. ART. 5. Tne second party agrees to pay all taxes and assess- ments of every kind that may in anywise be levied or assessed upon or against or on account of the railroads, other proper- ties, premises, equipment, franchises, and rights covered by this lease, or any of them, or any part of any or all of them, and agrees to preserve each and every part thereof Taxes, etc.. , , .. to be paid free and clear from any and all hens and charges by lessee. whatsoever by reason of any and all taxes and assessments; and the second party hereby assumes and agrees to satisfy and discharge all other duties, obligations, and liabilities of every nature and kind, and to preserve all and every part of the demised properties free and clear from any and all liens and charges of every nature which may or might at any time attach thereto or to any part thereof, by judgment of court or in any other manner whatever, except the lien of the mortgage here- inbefore referred to. And the second party agrees to indem- nify the first party against and hold it harmless from any and every claim, liability, loss or damage, in any way arising from or connected with the operation, use, or enjoyment by the second party at any and all times during the term of this lease of the demised properties or any part thereof. 31 482 LEASES RELATING TO MEMPHIS BRANCH ART. 6. The second party agrees, at its own risk, cost, and expense, at all times during the continuance of this lease, to Road to be keep, preserve, and maintain the railroads, hereby eood order. demised, in good order, and will in like manner at all times during the continuance of this lease keep, maintain, and preserve all of the demised railroads, other properties, premises, and equipment now in existence, and all betterments, additions, and equipment that may hereafter come into exist- ence and be subject hereto, in as good repair as the same now are, or as the same may be when they come into existence and become subject hereto. And the second party agrees at all times faithfully to perform toward the public all obligations due to it from the first party on account of or in respect to the demised properties. ART. 7. This lease is the formal and permanent lease referred to and contemplated in the temporary lease from the first party to the second party, dated the 14th day of December, 1895; and said temporary lease, in the particulars wherein it is at variance with this lease, is incorrect and incomplete; and the said temporary lease is hereby terminated, and the second party hereby releases the first party from any and temporary 61 " a ^ c ^ amis ^ might assert, or rights it might claim, lease. under said temporary lease of December 14, 1895, except for improvements which have been made by the party of the second part. ART. 8. All the covenants, agreements, undertakings, and promises which the second party makes or assumes in this lease shall be binding on the successors and assigns of the second party. In witness whereof, the parties hereto have hereunto sub- scribed their names and affixed their corporate seals this date first above written, in duplicate originals. LOUISVILLE & NASHVILLE RAILROAD COMPANY, [SEAL.] By M. H. SMITH, President. Attest: J. H. ELLIS, Secretary. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, [SEAL.] By J. W. THOMAS, President. Attest: J. H. AMBROSE, Secretary. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 483 1. The above lease was authorized by board of directors of the Nash- ville, Chattanoogu & St. Louis Railway, to be executed at their meeting 1 September 9, 1896, by vote of 8 to 1. [See minute book 6, p. 119-127 of Nashville, Chattanoogu & St. Louis Railway directors.] The lease was thereupon signed by both parties. 2. For discussion of suit of J. S. Rogers, to set aside this lease, see preceding chapter. J. W. PHILLIPS } TO V Deed to Tennessee Midland Railroad. L. & N. R. R. Co. ) This indenture, made and entered into by and between J. W. Phillips, party of the first part, and the Louisville & Nashville Railroad Company, a corporation organized and existing under the laws of the State of Kentucky, party of the second part, Witnesseth, That, in consideration of the sum of one million four hundred and ninety-one thousand eight hundred and sixty-four dollars ($1,491,864), being at the rate of eleven thousand dollars ($11,000) per mile of the line of railroad formerly of the Tennessee Midland Railway Company, cash in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, the party of the first part does hereby grant, bargain, sell, assign, transfer, and convey unto the said party of the second part, its successors and assigns, all and singular, the railroad and property form- erly of the Tennessee Midland Railway Company, and described as follows: Extending from within the city of Memphis, in the State of Tennessee, and running thence in an easterly direction through the counties of Shelby, Fayette, Hardeman, Madison, Hender- son, and Decatur, to Perryville, on the west bank Descrlptfc)ll of the Tennessee river, in the said last named f ">*> county; also, all the lands, tenements, and hereditaments ac- quired or used for the purposes of the railroad aforesaid, including all rights of way, roadbed, superstructures, and tracks thereon, all stations, stationhouses, depots, and all grounds used in connection therewith; all rails, railways, tracks, sidings, switches, bridges, fences, turntables, water- tanks, viaducts, culverts, main, passenger, and other depots, 484: LEASES RELATING TO MEMPHIS BRANCH freighthouses, machine shops, docks, wharves, telegraph lines, and all other buildings, structures, and fixtures, whatso- ever, acquired for the use of said railway, or the business thereof, or for the construction, maintenance, or operation thereof; also, all the locomotives, tenders, cars, equiqments, and other rollingstock, machinery, tools, weighing scales, wood, fuel, oil, and materials whatsoever, together with all the equipments and appurtenances thereunto belong- ing; also all the corporate rights, privileges, franchises, ill- Franchises eluding the franchise to be a corporation, and also etc., pass. a ji o ther property of every character and descrip- tion, real, personal or mixed, and wheresoever situate, for- merly of said railway company, except its books of account, and choses in action, and money on hand, and also except certain town lots donated to said railway company at or near the town of Parsons; including all the property of said rail- way company, which was directed to be sold by the final de- cree of foreclosure and, sale entered on the 9th day of July, 1895, by the circuit court of the United States, for the western division of the western district of Tennessee, at Memphis, in the case of St. Louis Trust Company, complainant, against the Tennessee Midland Railway Company, defendant, and which was sold under said decree by J. H. Watson and J. B. Clough, special masters appointed by said decree to the party of the first part hereto, on the 17th day of October, 1895, which said sale was duly confirmed by said court, by orders entered in said cause, bearing dates respectively, the 28th day of October, 1895, and the 29th day of November, 1895, except the books of account, choses in action and money on hand hereinbefore excepted; and being the same property heretofore conveyed, by virtue of said sale and the confirmation thereof, to the party of the first part hereto, by said J. H. Watson and J. B. Clough, special masters, by their deed bearing date the 13th day of December, 1895, and also conveyed to the party of the first part hereto, by the Tennessee Midland Railway Company, by its quitclaim deed, bearing date the 13th day of December, 1895, and by William L. Huse and John Overton Jr., re- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 485 ceivers of said railway and property by their deed, bearing date the 14th day of December, 1895; including herein and in- tending to include, all the property acquired as aforesaid, in- cluding all the property acquired in behalf of said railway company by William L. Huse and John Overton, Jr., as re- ceivers thereof; except the books of account, choses in action, and cash above referred to, and certain town lots donated to said railway at or near the town of Parsons. To have and to hold unto the said Louisville & Nashville Railroad Company, 'ami to its successors and assigns in fee simple, absolute, and forever, together with all the rights, privileges, and franchises appertaining thereto, as fully and completely as the said J. W. Phillips, party of the first part, holds or enjoys the same, or is entitled to hold and enjoy the same, by virtue of the conveyance made to him as aforesaid by said J. H. Watson and J. B. Clough, special masters, and by the said Tennessee Midland Railway Company, and by William L. Huse and John Overton, Jr., receivers, but subject to all the limitations and restrictions imposed on the said railway and property herein conveyed and on the purchaser thereof, by virtue of the final decree of foreclosure and sale entered by the said United States circuit court for the western division of the western district of Tennessee, in the case of St. Louis Trust Company, complainant, against the Tennessee Midland Rail- way Company, defendant, above referred to. And reference is hereby made to the said final decree of foreclosure and sale, and to the orders confirming said sale, and to said deed of J. H. Watson and J. B. Clough, special masters, and of the Ten- nessee Midland Railway Company, and of William Huse and John Overton, Jr., receivers, executed and delivered to the party of the first part for further and full particulars, both in respect to the property herein conveyed and to the conditions, limitations, and restrictions thereon, and on the purchaser thereof imposed. And the said party of the first part hereby covenants with the party of the second part that he will warrant and forever defend the title to all and singular the property TJtle hereinbefore conveyed to the party of the second w * rrtntcd> 486 LEASES RELATING TO MEMPHIS BRANCH part, and its successors and assigns, against the lawful claims of all persons claiming or to claim the same, or any part thereof, by, through or under him, but no further or other- wise. In witness whereof, the party of the first part has hereunto set his hand and seal, this the fourteenth day of December, 1895. [SEAL.] J. W. PHILLIPS. STATE OF MISSOURI, j [SB. CITY OF ST. Louis. ) Before me, Charles H. Anderson, a notary public within and for the city and state aforesaid, personally appeared J. W. Phillips, the within named bargainer, with whom I am person- ally acquainted, and who acknowledged that he executed the within deed for the purposes therein contained. My term of office expires on the fourteenth day of Novem- ber, 1897. Witness my hand and seal of office, this the fourteenth day of December, 1895. CHARLES H. ANDERSON, Notary Public, City of St, Louis, Mo. Deed, where registered. The above deed was registered August 4, 1896, in Shelby county, in book 250, p. 220; in Fayette county, August 15, 1896, book 21, p. 213; in Hardeman county, August 7, 1896, in book "K K," pp. 108-111; in Madison county, August 7, 1896, in book 54, p. 479; in Henderson county, August 17, 1896, in book 15, pp. 103-107; in Dcature county, August 8, 1896, in book 13, p. 261. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 487 CHAPTER XL. PADUCAH, TENNESSEE & ALABAMA RAILROAD. [PADUCAH BRANCH.] (Chartered in Tennessee under general acts 1875, ch. 142, and in Ken- tucky by special act. See charters, further on in this chapter.) How acquired by Nashville, Chattanooga & St. Louis Rail- way. The Paducah, Tennessee & Alabama Railroad Company, in order to raise funds to construct its road, issued and disposed of a series of bonds, secured by mortgage on its railroad, prop- erties, franchises, etc. Default being made in the payment of the coupons, the St. Louis Trust Company, as trustee, on October 28, 1893, filed a bill in the circuit court of the United States [in equity] for the district of Kentucky, at Paducah, and subsequently, on July 1, 1895, a supplemental bill, asking a foreclosure of said mortgage. The said trustee also, on Oc- tol>er 28, 1893, tiled a bill, as ancillary to the other, in the circuit court of the United States for the eastern division of the western district of Tennessee, at Jackson, and on July 1, 1895, a supplemental bill, for the same purpose. A decree of foreclosure was rendered July 10, 1895, by said United States circuit court for the district of Kentucky, at Paducah, and by the United States circuit court for the eastern division of the western district of Tennessee, at Jackson, on July 11, 1895, and A. B. Lamb and J. R. Puryear, as special masters, were ordered to sell said railroad, property, franchises, etc., in default of the payment of the amounts in said decree ordered to be paid. The amounts not being paid, the special masters, on October 18, 1895, in conformity to the terms of the decree, sold said Paducah, Tennessee & Alabama Railroad, pro|>erties, franchises, etc., to the highest bidder for cash, at the courthouse door in Paducah, Kentucky. The purchaser 488 LEASES RELATING TO MEMPHIS BRANCH was J. W. Phillips, who secured the property for the sum of $1,000,000. On November 29, 1895, a decree was entered confirming the sale and directing the special masters to execute a deed therefor. In December, 1895, the special masters exe- cuted a deed to J. W. Phillips of said railroad, franchises, properties, etc., in conformity with the terms of the decree. Said deed was properly acknowledged, and registered in the register's office of Carroll county, Tenn., December 8, 1895, in book 14, pp. 262-68; in Henderson county, Tenn., Decem- ber 26, 1895, in book 14, pp. 344-49; in Henry county, Tenn., December 20, 1895, in book 4, pp. 232-37; in Galloway county, Ky. , December 23, 1895, in book 7, p. 341; in Mar- shall county, Ky., December 21, 1895, in book 20, pp. 153- 59; in McCracken county, Ky., December 23, 1895, in book 50, p. 542; in Graves county, Ky., December 23, 1895, in book 15, pp. 196-203. The receivers of the company, Wm. L. Huse and John Overton, Jr., also executed a deed to him, conveying all their right, title, arid interest in and to the property to him. This deed was properly acknowledged and registered in the register's office of Henry county, Tennessee, December 20, 1895, in book 4, pp. 241-45; in Henderson County, Tennessee, Decem- ber 26, 1895, in book 14, p. 350; in Carroll county, Tennes- see, December 23, 1895, in book 14, pp. 273-77; in Calloway county, Kentucky, December 23, 1895, in book 7, p. 358; in Marshall county, Kentucky, December 21, 1895, in book 20, pp. 164-69; in Graves county, Kentucky, December 23, 1895, in book 15, pp. 210-15; in McCracken county, Kentucky, December 23, 1895, in book 50, p. 553. The Paducah, Tennessee and Alabama Railroad Company, itself also executed a deed to him, conveying all its right, title, and interest in and to the railroad properties, franchises, etc., to him. This deed was properly acknowledged and registered in the register's office of McCracken county, Kentucky, Decem- ber 23, 1895, in book 50, p. 548; in Graves county, Kentucky, December 23, 1895, in book 15, pp. 204-9; in Marshall county, Kentucky, December 21, 1895, in book 20, pp. 160-4; in NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 489 Galloway county, Kentucky, December 23, 1895, in book 7, p. 351; in Henry county Tennessee, December 20, 1895, in book 4, pp. 237-41; in Henderson county, Tennessee, Decem- ber 26, 1895, in book 14, pp. 357-61; in Carroll county, Ten- nessee. December 23, 1895, in book 14, pp. 268-72. On December 14, 1895, J. W. Phillips sold said road, property, franchises, etc., to the Louisville & Nashville Rail- road Company, and executed a deed therefor. Said deed is fully set out in the next chapter, and shows the places where it is registered. On December 14, 1895, the Louisville & Nashville Railroad Company executed a temporary lease of this road, together with the Tennessee Midland Railroad, which latter road it had also purchased, to the Nashville, Chattanooga & St. Louis Railway. This lease is fully set out in chapter thirty-nine herein, and shows the places where registered. 1. As the lease of the Tennessee Midland Railroad and the Paducah, Tennessee & Alabama Railroad were executed in one instrument, and as the lease has heretofore been inserted in this compilation in eh. 39, on the "Tennessee Midland Railroad." it will be here omitted. 2. For deed of Louisville fe Nashville Railroad Company to Tennessee Midland Railroad, see ch. 39 herein. On September 9, 1896, a permanent or formal lease of the two roads was drawn up and signed by the Louisville & Nash- ville Railroad Company and the Nashville, Chattanooga & St, Louis Railway. The lease was to be operative for a period of ninety-nine years from that date, at a rental of $1 54, 650 per annum, payable semiannually. This was five per cent, on the amount paid by the Louisville & Nashville Railroad Company ($3,093,000) for the two roads. The lease further provided that, should the Louisville & Nashville Railroad Company be called upon to expend additional sums for improvements, etc., on the two roads, an additional rental should be paid of five per cent, on the amount or amounts so expended. This lease is also fully set out in chapter 39 herein. (1) Legaility of lease; Rogers' suit For a full discussion of this, see "note," with similar heading, on page 457 herein, in chapter 38. con- cerning the Tennessee Midland Railroad. The two roads were leased to 490 LEASES RELATING TO MEMPHIS BRANCH the Nashville, Chattanooga & St. Louis Railway in the same instrument, and as the validity of the lease has been discussed in the chapter re- ferred to, it is here omitted for economy of space. Distance road built when leased. When the Nashville, Chattanooga & St. Louis Railway leased this road it had been completed and was in operation from Paducah, Kentucky, to Lexington, Tenneesee, a distance of about 118.18 miles, at which point it connected with the Tennessee Midland Railroad, thus forming a continuous line, with the latter road, to Mem- phis, Tennessee. The distance the Tennessee Midland Railroad had been built when it was leased to the Nashville, Chattanooga & St. Louis Railway was from Memphis to Perry ville, a distance of about 135.56 miles. Company, how and where chartered; route. The Paducah, Tennessee & Alabama Railroad Company was formed by the consolidation of the Paducah & Tennessee Railroad Company, a corporation of Kentuck} r ; the Paducah & Tennessee Railway Company, a corporation of Tennessee, and the Paducah & Tennessee Railroad Company, a corporation of Tennessee. The Paducah t Tennessee Railroad Company, of Kentucky, was chartered by Acts Kentucky 1853-4, ch. 681, as amended by Acts Kentucky 1873, ch. 315, p. 394, approved March 5, 1873; Acts 1888, ch. 300, approved February 25, 1888, and Acts 1892, ch. 85, p. 211, which became a law August 6, 1892, the latter act ratifying the consolidation. The Paducah & Tennessee Railway Company, of Tennessee, and the Paducah & Tennessee Railroad Company, of Tennessee, were both chartered under the general Acts of Tennessee 1875, ch. 142, sec. 6. The Paducah & Tennessee Railroad Company^ of Kentucky, was authorized by its charter and amendments to build a road from the terminus of any railroad bridge or transfer that might be built or established across the Ohio river, in the county of McCracken, to any station or depot in the city of Paducah, or junction with any railroad company in said city, and to extend its line of road by single, double, or treble tracks, in a southeastwardly direction, through the counties of NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 491 McCracken, Marshall and Calloway, to the line of the State of Tennessee, in Calloway county, as the company might select. The Paducah & Tennessee Railway Company, of Tennesseee, was authorized by its charter to construct a railroad from a point upon the north line of the State of Tennessee, in Henry county, so as to connect with the Paducah & Tennessee Rail- road, of Kentucky, and running thence in a southerly direction to a point within one-half a mile of the courthouse in Paris, Tenn. The Paducah & Tennessee Railroad Company, of Tennessee, was authorized by its charter to construct a road from a point at or near the city of Paris, Tenn., from a connection with the tracks of the Paducah & Tennessee Railway Company, of Ten- nessee, thence in a southerly direction across said state, upon the most possible and practical line, to a point on the south line of said state in the county of Wayne. All of these char- ters are fully set out further on in this chapter. On July 1, 1889, the stockholders of the above companies met at their respective offices and unanimously voted to con- solidate their roads. On July 15, 1889, articles of consolida- tion and agreements were drawn up and signed by the re- spective companies, and the new company so organized was given the name of the Paducah, Tennessee & Alabama Railroad Company. The articles of consolidation were registered in the secretary of states' office of Kentucky and Tennessee, and may be found further on in this chapter. (1) Legality of consolidation. The consolidation was legal under Acts Kj.. as set out in code 1894, \ 770. See also 555. It was legal un- der Acts Tenn., 1871, ch. 69; 1877, eh. 72, sec. 2; 1867-08, ch. 72, sec, 1; 1887, ch. 188, as set out in Shannon's Code of Tennessee as $ 1523, el *'/ The consolidation was made in conformity with these acts. The Paducah & Tennessee Railroad, of Kentucky, had power to consolidate under Acts Ky., 1888, ch. 300, sec, 3. See act in next chapter. (2) Consolidation approved. By Acts Ky., 18J2, ch. 85, p. 211, which became a law August 6, 1892, the consolidation of the above companies was approved and confirmed. The act is set out in next chapter herein. Width Of right Of way. [fn Tennessee]. The Paducah, Tennessee & Alabama Railroad Company was formed by the consolidation of the Paducah & Tennessee Railway 492 LEASES RELATING TO MEMPHIS BRANCH Company, of Tennessee, the Paducah & Tennessee Rail- road Company, of Tennessee, and the Paducah & Ten- nessee Railroad Company, of Kentucky, as heretofore explained. By virtue of the consolidation it fell heir to all the rights, privileges, and franchises of those respective companies. This being so, the width of its right of way will now have to be determined by the provisions of the original charters of those companies. As the Paducah & Ten- nessee Railway Company, of Tennessee, and the Paducah & Ten- nessee Railroad Company, of Tennessee, were both chartered under the general acts of Tennessee, 1875, chapter 142, sec. 6, the width of their right of way, from Lexington, Tenn., to the Kentucky state line, would have to be determined in the same way. In their charters there are no clauses granting specified numbers of feet as a right of way, in the absence of any contract with the original landowners, as was done in the charter of the Nashville, Chattanooga & St. Louis Railway. Section 9 of their charter, however, provided that the said company should have the right to appropriate, as an easement, a right of way not exceeding two hundred feet one hundred on each side of the center line of said roads over the lands of any person through which the line of track may be located. Under this section the two companies, or their successors, the Paducah, Tennessee & Alabama Railroad Company, could have originally condemned any number of feet, up to and including two hundred, for a right of way. Whatever number of feet was originally condemned, however, would now be binding upon the Nashville, Chattanooga & St. Louis Railway and its lessor, the Louisville & Nashville Railroad Company, unless additional proceedings are instituted, as will be hereafter ex- plained. Should no purchase or condemnation have been had at all, then the entry and construction of the road would be regarded as an appropriation of so much of the land as the law authorized, which is two hundred feet in Tennessee, and the Nashville, Chattanooga & St. Louis Railway, as the lawful lessee, and the Louisville & Nashville Railroad Company, as the lawful purchaser thereof, would be entitled to that number. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 493 3 Lea (Tenn.), 478. If a jmrcJuue or gift from the landowner was made, then, of course, the deed would control if mention is made of the width therein. If no width, is specified, then the law would doubtless presume the statutory width of two hundred feet was intended. !>8 Ala., 647. See also 3 Lea (Tenn.), 478. [In Kentucky.} The road from the Tennessee state line to Paducah, Kentucky, was built under the original charter of the Paducah & Tennessee Railroad Company, of Kentucky, as before explained, and its charter must control over that part of the road. By referring to its charter, which is fully set out further on in this chapter, it will be found that there is no clause in it granting specih'ed numbers of feet as a right of way, in the absence of any contract with the original land- owner, as was done in the charter of the Nashville, Chattanooga & St. Louis Railway. Section 1 of its charter, however, pro- vided that "the company is hereby authorized to lay out the road not exceeding one hundred feet wide throughout the whole length, and for the purpose of depots, cuttings, and embank- ments, and for the purpose of necessary turnouts, and for obtaining stone and gravel, may take as much more land as may be necessary for the construction and security of said road,'' etc. Under this section, the Paducah & Tennessee Railroad Company, of Kentucky, or its successor, the Paducah, Tennessee & Alabama Railroad Company, could have originally condemned any number of feet up to and including one hundred for a right of way, and as much more for depots, etc., as was necessary. Whatever number of feet was originally con- demned, however, would now be binding upon the Nashville, Chattanooga & St. Louis Railway and its lessor, the Louisville & Nashville Railroad Company. Should no purchase or con- demnation have been had at all, then the entry and construction of the road would doubtless be regarded as an approjwiation of so much of the land as the charter authorized, which was one hundred feet for a right of way, and the Louisville & Nashville Railroad Company and the Nashville, Chattanooga & St. Louis Railway, as the lawful purchaser and lessee thereof, respect- 494 LEASES RELATING TO MEMPHIS BRANCH ively, would be entitled to that number. 3 Lea (Tenn.), 478. If a purchase or gift from the landowner was made, then, of course, the deed would control, if mention is made of the width therein. If no width is specified, then the law would doubtless presume the statutory or charter width of one hundred feet was intended. 98 Ala., 647. See, also, 3 Lea (Tenn.), 478. For full discussion of width of right of way, together with kindred subjects, see "Eminent Domain," "Right of Way," herein. Refer to index. ORIGINAL, CHARTER OF THE PADUCAH AND TENNESSEE RAILROAD COMPANY [OF KENTUCKY]. [Chartered by Acts Kentucky, 1853-4, ch. 681.] SECTION i. Incorporation, name, general powers, route, width of right of way, land for other purposes. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That Alfred Boyd, L. S. Trimble, L. M. Flournoy, J. M. Bigger, Win. Smedley, A. Rankin, D. Watts, Wm. Nolen, R. S. Ratcliffe, J. B. Husbands, G. H. Morrow, H. M. Mc- Carty, J. C. Calhoun, Samuel Rice, John H. Terril, and incorpora- Samuel Purcel, of the county of McCracken; R. L. tors> Mayes, R. K. Williams, Win. Beadles, and Lucien Anderson, of the county of Graves, and State of Kentucky; John H. Dunlap, C. D. Venable, B. C. Brown, Govy Cox, and Robert Caldwell, of the county of Henry, and State of Ten- nessee, with such other persons as shall associate with them for that purpose, are constituted a body politic and corporate, by Name. the name of the Paducah & Tennessee Railroad Company; and by that name to sue and be sued, plead and be impleaded, in any court of this state; to make and have a General common seal, and the same break, alter, and renew Powers. a f. pleasure. And this company is hereby vested with all powers, privileges and immunities, which are or may be necessary to carry into effect the purposes and objects of this act, hereinafter set forth. And said company or corpora- tion is hereby authorized and empowered to locate, construct, and finally complete a railroad, or way, with as many sets of NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 495 tracks as they may deem necessary, from some suitable point at the town of Paducah, or from any point on the Route. New Orleans & Ohio Railroad, to the south boundary of this state, in a direction to Paris, or other point in Henry county, Tennessee, on such route as shall be deemed best and most expedient: and transport, take, and carry property and persons upon said railroad, or way, by the power and force of steam, of animals, or of any mechanical or other power, or any com- bination of them, which said company may choose to apply. And for the purpose of constructing said railroad, or way, the said company is hereby authorized to lay out the width of road not exceeding one hundred feet wide, through wy. the whole length. And for the purpose of depots, cuttings, and embankments, and for the purpose of necessary Land for turnouts, and for obtaining stone and gravel, may Purposes, take as much more land as may be necessary for the construc- tion and security of said road, with permission to make any lawful contract with any other railroad corporation in relation to the business of said company; and also to make joint stock with any other railroad corporation; Provided, That all damages that may be occasioned to any person or corporation, by tak- ing of any such land or materials aforesaid, for the purposes aforesaid, shall be paid for by said company in the manner hereinafter provided. 1. Incorporation. The above act, incorporating this company, was re-enacted by Acts Ky. 1873, ch. 315, p. 394, sec. 1, approved March 5, 1873. See act in next chapter. 2. Incorporators. Ily Acts Ky. 1873, ch. 315, p. 394. sec. 2, the incor- porators were changed to J. M. Bigger, John C. Noble, L. S. Tribble, P. Palmer, Campbell Parker, J. H. Stroud, John L. Irvan, R. L. Ellison, and Howell Smith. See act itself in next chapter. 3. Route. The route of this road, as authorized above, was amended by Acts Ky. 1873, ch. 315, p. 394, sec. 3, approved March 5, 1873. See act itself, in next chapter. The amendment, however, was subsequently repented by Acts 1888, ch. 300, sec. 5, approved February 25, 1888, which act may, also, be found in next chapter, and which act, by section 1 thereof, authorized the company to "build and operate the railroad in the city of Paducah, by and with the consent of the city council of said city, and county of McCracken, in the State of Kentucky, from the ter- minus of any railroad bridge or transfer that may be built or established across the Ohio river in said county of McCracken, to any station or 496 LEASES RELATING TO MEMPHIS BRANCH depot in the city of Paducah, or junction with any railroad company in said city, and may extend its line of road, by single, double, or treble tracks, in a southeastwardly direction, through the counties of Mc- Cracken, Marshall, and Galloway, to the line of the State of Tennessee, in Galloway county, as said railroad company may select." 4. May hold and condemn land. By Acts Ky. 1888, ch. 300. sec. 1, approved February 25, 1888, the company was authorized to establish and construct such depots, sidings, turntables, shops, transfer landings, and such other offices or structures as may be deemed expedient by the company, and may purchase, lease, or otherwise acquire real estate and personal property for its railroad tracks, transfer landings, depots, sidings, shops, offices, and all other purposes of said railroad company. In the event it cannot agree with the owner for the purchase of any land or material for the use or construction of said railroad, it may condemn the same, under the general law of this State, for its purposes and uses." See act itself in next chapter. 5. Franchise made perpetual. By Acts Ky. 1888, ch. 300, sec. 1, approved February 25, 1888, the franchise of the Paducah & Tennessee Railroad Company was made perpetual. See act itself in next chapter. 6. Name changed. On July 1, 1889, the stockholders of this company, together with those of the Padueah & Tennessee Railway Company, of Tennessee, and the Paducah & Tennessee Railroad Company, of Tennes- see, met at their respective offices, and unanimously voted to consolidate the three companies, under Acts Ky., as set out in Code of 1894, 770 [see, also, $ 555], and Acts Tenn., as set out in Shannon's Code, \ 1522 et seq. On July 15, 1889, articles of agreement were drawn up and signed by the respective companies for this purpose, and the name of the con- solidated companies changed to the ' Paducah, Tennessee & Alabama Railroad Company." See articles of agreement further on in this chapter. Subsequently, by Acts Ky. 1892, ch. 85, p. 211, which became a law August 6, 1892, the consolidation was approved and confirmed. This act may also be found in next chapter. It may be mentioned that the Paducah fe Tennessee Railroad Company, of Kentucky, had the power to consolidate under Acts Ky. 1888, ch. 300, sec. 3. 7. May indorse bonds of cities, counties, etc., when. By Acts Ky. 1888, ch. 300, sec. 4. the company was authorized to indorse the bonds of any county, city, town, civil or school district issued in aid of its con- struction. See act itself in next chapter. 8. May consolidate with other roads. By same act, section 3, the company was authorized to unite, cou.^uiidate, or make running arrange- ments with any other railroad within or without the state. See act itself in next chapter. SEC. 2. Capital stock; value of shares. That the capital stock of said company shall not exceed one million five hundred thousand dollars, to be divided into shares of fifty dollars each, which shall be deemed personal property, and may be trans- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 497 t'erred in such manner and at such places as the by-laws of said company shall direct; Provided, That said company may com- mence the construction of said road, with all the powers and privileges contained in this act, whenever the sum subscribed shall exceed two hundred thousand dollars. Capital increased. By acts Ky. 1888, ch. 300, sec. 3, approved Feb- ruary '25, 1888, the capital stock was fixed at 83,000,000, with power on the part of the directors to increase or decrease the stock to the actual amount expended in its construction and equipment. SEC. 3. Books opened, where; capital stock not to exceed What. That the persons named in the first section of this act, or a majority of them, shall open books to receive subscrip- tions to the capital stock of said company, at such time and places as they or a majority of them may appoint, and shall give such notice of the time and place of opening said books as they may deem reasonable, and shall receive aid subscrip- tions under such regulations as they may adopt for the pur- pose. And if more than six thousand shares of stock shall be taken or subscribed, they shall have the power to make the shares as subscribed the capital stock of said company; Pro- vided, They shall not exceed thirty thousand shares, and in case the subscription should exceed thirty thousand shares,, the same shall be reduced and apportioned in such manner as may be deemed most beneficial to the corporation. (1) Capital increased. See note to section 2 of this charter. SEC. -L Powers, number, quorum; secretary and treasurer, hOW Chosen. That the immediate government and direction of the affairs of said company shall be vested in a board of di- rectors, to consist of twelve persons, who shall be shareholders, who shall be chosen by the stockholders of said company in the manner hereinafter provided, and shall hold their offices until others are duly elected and qualified to take their places as directors. And the said directors, seven of whom (the president being one) shall be a quorum for the transaction of business, shall elect one of their members to be president of the board, who shall also be president of said company. They shall also choose a secretary, and such other officers as they 32 498 ORIGINAL CHARTER PADUCAH DIVISION may deem necessary; and a treasurer, who shall give bond with security to said company, in such sum as the directors may require, for the faithful performance of his trust. This road having 1 been purchased by the Louisville & Nashville Rail- road Company, and leased by it to the Nashville, Chattanooga & St. Louis Railway, it now forms part of the general system of the two latter companies, and is controlled by their respective directors. SEC. 5. Stockholders' meetings, voting, proxies, election of directors. That the persons authorized by the third section of this act to open the books for subscription to the capital stock are hereby authorized, after the books of subscription to the capital stock of said company are closed, or when the sum sub- scribed shall exceed two hundred thousand dollars, to call the first meeting of the stockholders of said company, in such way and at such time and place as they may appoint, for the choice of directors of said company; and in all meetings of the stock- holders of said company each share shall entitle the holder thereof to one vote, which vote may be given by said stock- holder in person or by lawful proxy. And the annual meet- ings of the stockholders of said company for the choice of di- rectors shall be holden at such time and place, and upon such notice, as the said company in their by-laws may provide. For method of electing directors in Nashville, Chattanooga & St. Louis Railway, which company now operates this road as a part of its general system, see ch. 1 herein, sees. 8, 9. SEC. 6. Failure to elect directors; vacancies. That in case it shall so happen that an election of directors shall not be made on any day appointed by the by-laws of said company, said company shall not for that cause be deemed to be dis- solved, but such election may be holden, on any day which shall be appointed by the directors of said company, and said directors shall have power to fill any vacancy which may occur by death or otherwise. SEC. 7. Powers of directors; corporation may acquire land, how; contract for right of way. That the directors shall have full power to make and prescribe such by-laws, rules, and regulations as they shall deem needful and proper, touching the disposition and management of the stock, property, estate, NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 409 and effects of said company, not contrary to this charter, or the laws of this state or of the United States; the transfer of shares, the duties and conduct of their officers and servants, touching the election of, and meeting of, the directors, and all matters whatsoever which may appertain to the concerns of said company. Said company is also hereby authorized to purchase, receive, and hold such estate as may be necessary and convenient in accomplishing the objects for May acauire which this incorporation is granted; and may, by Land- their agents, surveyors, engineers, and servants, enter upon all lands and tcnaments through which they may deem it necessary to make said road, and to survey, lay out, and con- struct the same, and to agree and contract for the land, or of wav, with owners through which they Land for . , . . Right of may intend to make said road. In case said lands Way. belong to the estate of any deceased person, then with the exec- utor of such; or in case oi the same belonging to a minor, or a person non compox mentis, then with his or her guardian or guardians; or in case said lands be held by trustees of school sections, or other trustees of estates, then with such trustees; and the said executors, guardians and trustees are hereby de- clared competent for such estate, or minor, to contract with said company, for the right to use, occupy, and possess the lands of such estates, minors, or trustees, so far as may be necessary to the purpose of said railroad; and the act and deed of such executors, administrators, guardians, and trustees in relation thereto, shall pass the title in said land in the same manner as if said deed or act was made or done bv a le^al ~ owner of full age; and such executor, guardian, or trustee shall account to those interested, upon their respective bonds, for the amount paid him in pursuance of such agreement and com- pensation. And if the said parties representing Ar ,,, tr land prefer, they may refer the question of com- tton< pensation to arbitrators mutually chosen, whose award, or that of their umpire in case of disagreement, shall vest title according to its terms. 1. May acquire land. Hy Acts Ky. 1888, ch. 300, sec. 1, approved Feb- ruary 25, 1888, the company was authorized to " establish and construct 500 ORIGINAL CHARTER PADUCAH DIVISION such depots, sidings, turntables, shops, transfer landings, and such other offices or structures as may be deemed expedient by the company, and may purchase, lease or otherwise acquire real estate and personal property for its railroad tracks, transfer landings, depots, sidings, shops, offices, and all other purposes of said railroad company. In the event it cannot agree with the owner for the purchase of any land or materials for the use or construction of said railroad, it may condemn the same under the general law of this state for its purposes and uses." See act itself in next chapter. 2. May receive gifts of. By same act, sec. 3, the company was author- ized to receive gifts or donations of right of way, or of any other thing necessary or useful in the construction and operation of the road or branches. SEC. 8. Condemnation for right of way. That if the said company cannot agree with the owner of the land through which they may desire the road to pass, or with the executors, guardian, or trustee, it shall and may be lawful for the clerk of the circuit court of the county in which said land lies, on application of said company, or its agents, and he is required to issue a writ of ad quod damnuin, commanding the sheriff that, without delay, he cause a jury of six good and lawful men to be upon such land on a day to be by said sheriff fixed and appointed, and whereof it shall be his duty to give notice to the owner, executor, administrator, guardian, or trustee, at least five days before such day, if they be within his county, or if not, or if the owner or owners be unknown, then notice shall be given by advertisement, to be by said sheriff posted and fixed on the dwelling house, if such there be, or in a public or conspicuous place, at least five days before such appointed day, and also by advertising the same in some newspaper published nearest the land, at least three weeks by weekly in- sertions prior to said day, and then cause said jury, after being duly sworn by said sheriff or justice of the peace, to make true inquest of the value of the land so taken, and of the damage that will be sustained by such owner or estate by reason of making such road through such land. If any such juror shall fail to appear, or, by reason of challenge for cause or otherwise, fail to sit on such inquest, the said sheriff shall fill said jury from the bystanders, and if they fail to render a verdict, the said sheriff shall again, on the same or subsequent NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 501 day, impannel a new jury or jurors, until a verdict be had. Such verdict and inquest, regularly certified by such sheriff, shall l)e returned to the office of the clerk of the circuit court of the county in which said land may be, and there remain among the records. And such verdict shall vest in said com- pany the right to occupy and use such land for the purposes of said railroad, on the payment or tender of payment of the value of the land and of the damages thereon assessed against said company; and in case of persons absent or unknown, as aforesaid, the placing of the amount of damages to the credit of the owner, in the hands of the clerk of the county court for the county in which such lands may lie, shall be deemed and taken as payment, and such clerks shall be liable on their bonds to make due payment of said money on demand. 1. Condemnation. By Acts Ky. 1888, ch. 300, sec. 1, approved Feb- ruary 25, 1888, the company was given power to condemn, under the general laws of the state, land or material for the use or construction of said railroad. See act itself in next chapter. 2. Condemnation. After the consolidation of this company with the Paducah & Tennessee Railway Company, of Tennessee, and the Paducah & Tennessee Railroad Company, of Tennessee, as heretofore explained, it was thought questionable whether or not condemnation could be made under the above section, on account of supposed irregularities in the consolidation. The legislature of Kentucky, however, to cure this defect, if any existed, passed an act approving and confirming the con- solidation Acts Ky. 1892, ch. 85, p. 211. See act itself in next chapter. 3. May receive gifts of. See note 2 to section 7 of this charter. SEC. 9. Time of holding inquest; clerk's fees, etc. That it shall be the duty of the sheriff to appoint and hold said inquest within ten days after the receipt of said writ of ad quod dam- num, except in such cases of absence aforesaid, in which case thirty days shall be allowed him, and five days in addition are allowed him for every additional jury which he may have under said writ; and for every default therein the said sheriff shall be fined by the circuit court, at the instance of either party, not less than twenty nor more than one hundred dollars; and every juror and witness summoned shall be fined not less than ten dollars for nonattendance. Of all such tines, as well as costs, the circuit court of the county shall have jurisdiction. 502 ORIGINAL CHARTER PADUCAH DIVISION There shall be allowed the following fees: To the clerk of the circuit court, for every writ of ad quod damnum, seventy-live cents; for receiving and filing inquest, seventy-five cents; to the sheriff for giving notice, seventy-five cents, beside print- er's fees, not exceeding two dollars in each case; for holding inquest, five dollars, and for summoning witnesses, twenty- five cents each; to jurors, seventy cents per diem each. Which fees are not allowed until a verdict be returned and filed, and shall be taxed in the bill of costs and paid by the company; Provided, however, That, before the application for said writ, the said company may make a tender to the owner or owners of any such land a sum of money by them deemed equivalent to the damage to be sustained, and, upon refusal to accept the sum tendered, and a verdict for the same amount to a less sum, the costs shall be taxed to and paid by the owners of the land upon which the inquest is held. SEC. 10. Counties authorized to subscribe for stock, how. That it shall and may be lawful for any of the counties through which said road may pass, and they are hereby permitted, to subscribe and hold stock in said company upon the same terms and conditions, and subject to the same restrictions, with other stockholders; Provided, however, That a majority of the qual- ified voters in such county, who shall cast their votes as herein provided for, shall be in favor of the subscription for such stock, and that no one county shall subscribe stock in said company to a larger amount than one hundred and fifty thou- sand dollars. By Acts Ky. 1888, ch. 300, sec. 2, approved February 25, 1888, counties, cities, towns, and civil districts were allowed to subscribe to the capital stock of this company in a method therein set out. See act itself in next chapter. SEC. 11. Subscription to be voted upon, hOW. That, when- ever the company aforesaid shall request the county court of any county through which the said road will pass to subscribe the bonds of said county for any portion of the capital stock of said company, not exceeding the amount hereby authorized, the county court shall, within sixty days thereafter, on a day NASHVILLE, CHATTANOOGA y organized and constituted a body politic and corpo- rate in accordance with the laws of the state of Tennessee, under the name of the Paducah & Tennessee Kail way Com- pany, with perpetual succession, for the purpose of laying out, constructing, and operating and maintaining a line of railway with one or more tracks from a point in said state, upon the north line of said state, in the county of Henry in said state, and at the point on said state line where the tracks of the Paducah & Tennessee Railroad, of Kentucky, strikes the same, 506 ORIGINAL CHARTER PADUCAH DIVISION and to connect with the same, thence in a southerly direction to a point within one-half of a mile of the courthouse in said cit} r of Paris, in said Henry county, in the state of Tennessee. The general offices of said company are hereby located in the city of Paris in said county of Henry. The capital stock of said company or corporation is for the present fixed at twenty- five thousand dollars per mile of said road and side tracks, as proposed to be constructed, with the privilege of increasing the same from time to time, as, in the opinion of the board of directors, the interest of said company may require. The said incorporators shall constitute the first board of directors of said company, who shall remain in office until their successors are chosen; vacancies in said board may be filled by a majority of the remaining members thereof. Said directors may bar- gain and sell said capital stock and local subsidy bonds and the bonds of said company, in whole or in part, in payment for the construction of said road or any part thereof; said stock shall be divided into shares of one hundred dollars each. SEC. 2. [This section, together with succeeding sections, up to and including section 41, are the same as the corresponding sections of the charter granted the Decatur, Chesapeake & New Orleans Railway Company by act Tennessee, and hence are here omitted for economy. See sections on page 414 et seq. herein.] SEC. 42. [In addition to the powers aforesaid this corpora- tion shall have the right to guarantee or purchase the bonds or stock of other corporations; to lease or purchase the roads and property of other corporations, and operate the same; to sell or lease its own road and property to any other corpora- tion, in whole or in part; to unite and connect the track or tracks of its road with the tracks of any other corporation, and by resolution of its board of directors and stockholders con- solidate and merge the capital stock of any other corporation into and with that of its own capital stock, or its own capital stock with that of any other corporation; to construct its road across or upon any highway, county road or street or alley of any city, town, or village, but in such manner as to allow NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 507 wagons and other vehicles safely to pass upon the same; to construct the track or tracks of its road over or across the track or tracks of any other company, and to unite and connect with the same, and finally to possess the right to do all other acts and tilings necessary or proper to l>e done in the construction or operation of said road, or any part thereof whatsoever the same may he or be called; and all other rights and privileges, powers and immunities which are now, or which may hereafter be conferred upon similar corporations in said state by any general or special law, are expressly adopted and claimed for and to inure to the use and benefit of this corporation what- ever such rights, powers, privileges, or immunities may be or be called.] The above part in brackets is not in the regular form of charters granted under the Acts of 1875, ch. 142. It is largely embraced in the general laws, however, which became, upon their passage, a part of its organic existence. We, the undersigned, apply to the state of Tennessee by virtue of the law of the land for a charter of incorporation, for the purposes and with the powers, etc., declared in the forego- ing instrument. Witness our hands, this twentieth day of March A. D. eighteen hundred and eighty-eight (1888). A. B. LAMB, W. D. KENDALL, J. L. LEMONDS, J. X. THOMASON, W. A. CARTER, W. H. HUDSON, R. L. ELLISON, S. H. CALDWELL, J. T. WILLIAMS, GEO. D. VANHORN. The above charter was properly acknowledged and registered in the secretary of state's office, in book "S.," p. 57, March 24, 188S; in Henry county, Tenn., in book " Y '' of deeds, pp. 578-588. 508 ORIGINAL CHARTER PADUCAH DIVISION ORIGINAL CHARTER OF THE PADUCAH & TENNESSEE RAILROAD COMPANY. [OF TENNESSEE.] Chartered under General Acts Tenn., 1875, ch. 142, 6. STATE OF TENNESSEE CHARTER OF INCORPORATION. SECTION i. Incorporation, name, route, general powers. Be it known, That R. L. Ellison, S. H. Caldwell, J. T. Will- iams, Geo. D. Vanhorn, A. B. Lamb, W. D. Kendall, J. L. Lemonds, J. N. Thoraason, W. A. Carter, and W. H. Hud- son, citizens over the age of twenty-one years, are herein and hereby organized and constitute a body-politic and corporate in accordance with the laws of the State of Tennessee, under the name of the Paducah & Tennessee Railroad Company, with perpetual succession, for the purpose of laying out, construct- ing, and operating a line of railway, with one or more tracks, from a point at or near the city of Paris, in Henry county, in said state, and from a connection with the tracks of the Padu- cah & Tennessee Railway Company at or near said city, thence in a southerly direction across said state, upon the most passa- ble and practical line to be chosen by said company, to a point upon the south line of said state, in the county of Wayne. The capital stock of said company is for the present fixed at three million of dollars, with the privilege of increasing the same from time to time, as in the opinion of the board of directors of said company the interest thereof may require. The said incorporators shall constitute the first board of directors of said company, and remain in office until their suc- cessors are chosen. Vacancies in said board may be filled by a majority of the remaining members thereof. Said directors may bargain and sell said capital stock. The local subsidy bonds, if any, are voted to said company, and the bonds of said company, in whole or in part, in payment for the con- struction of said road or any part thereof. Said capital stock shall be divided into shares of one hundred dollars each. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 509 SEC. 2. [This section, together with succeeding sections up to and including section 41, are the same as the corresponding sections of the charter of the Decatur, Chesapeake & New Orleans Railway Company, by Acts Tennessee, and hence are here omitted for economy. See sections referred to therein, on page 414, et aeq.} SEC. 42. [In addition to the powers aforesaid, this corpora- tion shall have the right to guarantee or purchase the bonds or stock of other corporations, to lease or purchase the roads and property of other corporations, and operate the same; to sell or lease its own road and property to any other corpora- tion, in whole or in part; to unite and connect the track or tracks of its road with the tracks of any other corporation, and, by resolution of its board of directors and stockholders, consolidate and merge the capital stock of any other corpora- tion into and with that of its own capital stock, or its own capital stock wifh that of any other corporation; to construct its road across any stream of water, navigable or otherwise, not, however, to interfere with the use and navigation of the same; to construct its road across or upon any highway, county road or street or alley of any city, town or village, but in such manner as to allow vehicles safely to pass upon the same; to construct the track or tracks of its road over or across the track or tracks of any other company, and to unite and connect with the same, and finally to possess the right to do all other acts and things necessary or proper to be done in the construction or operation of said road, or any part thereof, whatsoever the same may be or be called; and all other rights and privileges, powers and immunities which are now or which may hereafter be conferred upon similar corpo- rations in said state, by any general or special law, are ex- pressly adopted and claimed for and to inure to the use and benefit of the corporation, whatever such rights, powers, priv- ileges or immunities may be or be called,] we, the undersigned, apply to the State of Tennessee, by virtue of the law of the land, for a charter of incorporation for the purposes and with the powers, etc., declared in the foregoing instrument. 510 ARTICLES RELATING TO PADUCAH DIVISION Witness our hands, this the twentieth day of March, A. D. eighteen hundred and eighty-eight (1888). W. D. KENDALL, J. L. LEMONDS, J. N. THOMASON, W. A. CARTER, W. H. HUDSON, R. L. ELLISON, S. H. CALDWELL, J. T. WILLIAMS, GEO. D. VANHORN. A. B. LAMB. 1. The above part in brackets was inserted in this charter, though it is not in the general form of charters, under Acts of 1875, ch. 142. It is largely embraced in the general laws, however, which become, upon their passage, a part of its organic existence. 2. Where registered. The above charter was properly acknowledged and registered in the secretary of state's office, March 24, 1888. in book "S," p. 53; in Henry county, Tenn., in book " Y " of deeds, p. 587. ARTICLES OF CONSOLIDATION CREATING THE PADUCAH, TENNESSEE & ALABAMA RAIL- ROAD COMPANZ. Parties. Articles of consolidation made and entered into by and between The Paducah & Tennessee Railroad Company, a corporation legally created and existing under and in accord- ance with the laws of the state of Kentucky, party of the first part, and the Paducah & Tennessee Railway Company, a cor- poration legally organized and existing under and in accord- ance with the general laws of the state of Tennessee, party of the second part, and the Paducah & Tennessee Railroad Com- pany, a corporation likewise organized and legally existing under and in accordance with the general laws of the said state of Tennessee, party of the third part. Witnesseth: for that Preamble. WHEREAS, The party of the first part has the legal right to construct and operate, and has commenced to construct a line of railroad from the city of Paducah in said state of Kentucky, thence in a southerly direction to a point NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 511 upon the south line of said last named state, in the county of Calloway therein; and, WHEREAS, The party of the second part, has the like legal right to construct and operate, and has commenced to construct a line of railway from the same point upon the line dividing the said states of Kentucky and Tennessee, at which the line of the said party of the first part terminates, thence in a southerly direction to a point at or near the city of Paris, in Henry county, in said state of Tennessee; and, WHEREAS, The party of the third part has the legal right to construct and operate, and has commenced to construct a line of railroad from the same point, at or near to the said city of Paris, at which the line of the said party of the second part terminates, thence in a southerly direction across the said last named state to a point upon the line dividing the states of Tennessee and Alabama in Wayne county, Tenn. ; and, WHEREAS, Each of said companies has full authority of law to unite and consolidate its corporate property, capital stock, and franchises with those of any other company or companies, whether created by the laws of the same or different states; and, WHEREAS, The stockholders of each of the said companies, parties hereto, have respectively, at legal meetings thereof, by resolutions unanimously adopted, respectively requested, authorized and directed, that the property, capital stock, and franchises of said respective companies should be united and consolidated into one undertaking and corporate entity; which said action of said stockholders has in all things been fully concurred in by like resolutions of each of the respective boards of directors of said companies, parties hereto, and the respective presidents thereof, for them respectively ordered to execute these articles of consolidation, and to be attested by their respective secretaries; now, therefore, Be it known, That, for the purposes of, and in consideration of, securing, and to secure the mutual benefits and advantages resulting to, and to result from such union and consolidation of said companies, parties hereto, respectively, and in order to 512 ARTICLES RELATING TO PADUCAH DIVISION consummate such consolidation and unity of interest, as afore- said, it is herein and hereby mutually stipulated, covenanted, and agreed by and between the said companies, parties hereto, as follows: ARTICLE i. Consolidation, name, liabilities, and powers. That said companies, parties hereto, be and the same are hereby united and consolidated into one corporate entity, which shall be known and called "The Paducah, Tennessee & Alabama Railroad Company," and that the corporate seal thereof shall be the name thereof, in circular form, encircling the word "seal;" which said consolidated company shall be and become liable in fact and in law for, and shall pay all just debts, contracts, and obligations legally owing, incurred or entered into by either of the said parties hereto; and shall have, own, possess, hold, receive and enjoy, all and singular, the corporate rights, subscriptions to capital stock, choses in action, privileges, powers, property, donations to, effects and estate of every character, present and prospective, as claimed by, coming to, belonging to, held, possessed or enjoyed by the said companies, parties hereto, respectively, whatever the same may be or be called. ART. 2. Capital StOCk, value Of Shares. The amount of the capital stock of said consolidated company shall be five million (5,000,000) dollars, and be divided into shares of one hun- dred ($100) dollars each, and be issued at the rate of 20,000 per mile of constructed road, reserving, however, the right and privilege of increasing or decreasing the same from time to time as may be or become necessary for the uses and pur- poses of such consolidated company. ART. 3. Stock in old companies to be exchanged for stock in new. The stockholders of said companies, parties hereto, shall each surrender all and every share of such capital stock so held by them respectively to the secretary of such consoli- dated company and receive in lieu and exchange therefor an equal amount of the capital stock of such consolidated com- pany, dollar for dollar. ART. 4. Directors, number Of, etc. That the board of di- NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 513 rectors of such consolidated company shall be composed of nine (9) stockholders thereof, which numl>er may be increased or decreased at the will of such stockholders at any regular meet- ing thereof; the first board of directors of such consolidated company shall be composed of the following named persons, to wit: Thomas H. Puryear, Charles Reed, E. P. Noble, B. C. Keys, L. C. Lynn, John C. McElraith, J. J. Head, A. B. Lamb, John L. Booth, who shall hold office until the next regular meeting of such stockholders and until their successors are elected. ART. 5. Officers elected, how; books of old companies to be turned Over tO. The persons named in the foregoing article as directors of such consolidated company shall immediately, after the execution of these articles by said parties hereto, convene and organize by electing a president and vice-presi- dent from among their number, and also a secretary, auditor, treasurer, and general solicitor, who may or may not be mem- bers of such board of directors; and thereupon the respective secretaries and treasurers of the said parties hereto shall promptly deliver and turn over to the secretary and treasurer respectively of such consolidated company all books, records, papers, accounts, and documents of every character, and all moneys, stocks, bonds, vouchers, contracts, and other things of value appertaining to their said offices or either of them. ART. 6. Consolidation consummated; franchises, etc., of Old companies vest in new. That upon the execution of these articles of consolidation the same shall be binding upon the said parties hereto, and such consolidation shall be, and l>e considered as fully consummated without further action upon the part of the parties hereto, or either of them, or any officer thereof; and thereupon each of said companies, parties hereto, with all their charter rights, privileges, powers, immunities, capital stock and subscriptions to capi- tal stock, corporate property, present and prospective, of every character and description, and franchises, shall be and become fused, united, and consolidated into one corporate entity and existence, under the name and style as set forth in 33 514: ARTICLES RELATING TO PADUCAH DIVISION the first paragraph of these articles, and thereupon the presi- dent and secretary of such consolidated company shall promptly make out, or cause to be made out, and filed and recorded, any and all such statements and transcripts relating to such con- solidation as may be required to be made out, filed or recorded, in any office or place, by the laws of the said states of Ken- tucky and Tennessee, or either of them. ART. 7. Bonds to be issued; mortgage provided, for what. It is further agreed that the proper officers of such consoli- dated company shall, upon behalf thereof, execute in due form of law a mortgage or deed of trust, one or more, to such trustee as may be chosen by the parties in interest, covering the property and franchises of such company, to secure the payment of a series of the bonds thereof, to become due and payable, at such times, and bear such rate of interest, and be of such amount, and of such terms and provisions as will conform to and satisfy the requirements of the contracts here- tofore made by the parties hereto with Messrs. Mclntyre, Concannon & Co., and assigns, for the construction of the several roads of the said parties hereto, which said last-men- tioned contracts are hereby in all things ratified, confirmed and adopted as the contracts of such consolidated company, and are to be performed by it in good faith. It is understood that the said series of bonds as above agreed to be issued by the said consolidated company are to be used to take up and retire bonds, if any, that may have been issued by any of the parties hereto prior to such consolidation, and for the other and general purposes of such consolidated company. ART. 8. Directors given power to carry consolidation into effect. The board of directors of such consolidated company shall have full power, and is hereby fully authorized to do and perform any and all acts and things necessary or proper to be done in order to carry such merger and consolidation into / effect, according to the true intent and object of the parties heieto, as expressed herein and in the various resolutions adopted authorizing this consolidation, and as counsel learned in the law may advise. NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 515 In testimony whereof, the said Paducah & Tennessee Rail- way Company, party of the first part herein, has, by authority of the stockholders and board of directors herein set forth, and by authority of the law of the said state of Kentucky, caused these articles of consolidation to be signed by the president thereof, and to be attested by the signature of the secretary thereof (said company having no corporate seal), upon this the fifteenth day of July, A. D. 1889. PADUCAH & TENNESSEE R. R. Co., By T. H. PURYEAR, President. Attest: ED P. NOBLE, Secretary. In testimony whereof, the said Paducah & Tennessee Rail- way Company, party of the second part herein, has, by authority of its stockholders and board of directors as herein- above set forth, and by authority of the law of the said state of Tennessee, caused these articles of consolidation to be signed by the president thereof and to be attested by the signature of the secretary thereof (said company having no corporate seal provided), upon this the first day of July, A. D. 1889. " THE PADUCAH AND TENNESSEE RAILWAY Co." By J. J. HEAD, President. Attested: By W. A. CARTER, Secretary. In testimony whereof, the said Paducah & Tennessee Rail- road Company, party of the 'third part herein, has by authority of its stockholders and board of directors as hereinabove set forth, and also by authority of the law of the said state of Ten- nessee, caused these articles of consolidation to be signed by the president thereof, and to be attested by the signature of the secretary thereof v said company having no corporate seal provided so as to be atfixed hereto), upon this the first day of July, A. D. 1889. THE PADUCAH & TENNESSEE RAILROAD Co., Attested: By A. B. LAMB, President. By J. L. LEMONDS, Secretary. The above articles of agreement were properly acknowledged and registered in the secretary of state's office of Tennessee, in book "P," p. 622; in the secretary of state's office of Kentucky, in book , p. 516 ARTICLES RELATING TO PADUCAH DIVISION CERTIFICATE OF THE RECORDS OF THE VARIOUS CONSTITUENT- COMPANIES EFFECTING THE CONSOLIDATION INTO THE PADUCAH, TENNESSEE & ALABAMA RAIL- ROAD COMPANY. Name Of Companies. I, J. W. Fristoe, secretary of the Paducah, Tennessee & Alabama Railroad Company, do hereby certify that the following is a synopsis of the records of seven different meetings of the stockholders and directors of the Paducah & Tennessee Railway Company: The Paducah & Tennessee Railroad Company of the state of Kentucky, the Paducah & Tennessee Railroad Company of the state of Ten- nessee, and the Paducah, Tennessee & Alabama Railroad Company, as taken from the record or minute books of said companies. 1. Paducah & Tennessee Railway Company, of Tennessee; Stockholders' meeting. At a meeting of the stockholders of the Paducah & Tennessee Railway Company, held in the city of Paris, Tenn., on July 1, 1889, at 9 o'clock A.M., all the stockholders being present in person or represented by legal proxy, the following action was taken, recorded on said record book, pages 62 to 66, both inclusive: That a proposed consoli- dation of the Paducah & Tennessee Railway Company with The Paducah & Tennessee Railroad Company, of the state of Kentucky, and the Paducah & Tennessee Railroad Company, of the state of Tennessee, was approved, and the board of directors of the Paducah & Tennessee Railway Company was authorized and directed to make such consolidation. Minutes signed by A. B. Lamb, chairman, and A. H. Duncan, sec- retary. 2. Paducah & Tennessee Railway Company, of Tennessee; directors' meeting. Pursuant to the above the board of directors of the said Paducah & Tennessee Railway Company, at a meeting held in the city of Paris, Tenn., on July 1, 1889, the following action was taken, all the directors of said rail- way company being present: That the Paducah & Tennessee R-iilway Company, with all its properties, capital stock, and franchises, was duly consolidated with the Paducah & Tennes- NASHVILLE, CHATTANOOGA e put in operation. The above section was repented by sec. 5 of Acts 1888, ch. 300, ap- proved February 25. 1883. See act itself herein in this chapter. SEC. 5. Counties may subscribe for stock, how. That before any county shall be permitted to subscribe and hold stock in said company, a majority of all the justices of the peace in commission in the county shall concur in making the order to submit the proposition to a vote, and a majority of two-thirds of all the votes cast shall l>e cast at a general elec- tion in favor of the proposition before any county or court shall subscribe stock. The above section was repealed by sec. 5, of Acts 1888, ch. 300, ap- proved February 25, 1888. See act itself in this chapter. SEC. 6. Cities and towns may subscribe for stock, how. That any city or town may subscribe and hold stock in said company to an amount not exceeding three hundred thousand dollars; Pn/vided, however, That before such city or town shall be permitted to subscribe such stock a majority of two- thirds of all the qualified voters of such city or town shall, at a regular city or town election, cast their votes in favor of the subscription. The above section was rejwtled by sec. 5, of Acts 1888, ch. 300, ap- proved February 25, 1888. See act itself in this chapter. SEC. 7. Section 17 Of Charter repealed. That section sev- enteen (17) of the original act be, and the same is hereby, repealed. SEC. 8. Right to amend act reserved. The legislature 522 LEASE, ETC., RELATING TO PADUCAH DIVISION hereby reserves the right to amend, modify or repeal this act at its discretion. SEC. 9. When act to take effect. That this act take effect from its passage. Acts of 1873 (Ky.), ch. 315, p. 394, approved March 5, 1873. AMENDMENT OF CHARTER OF THE PADUCAH & TENNESSEE RAILROAD COMPANY. [OF KENTUCKY.] [Acts Ky. J388, ch. 300.] SECTION i. Route, hold real estate, condemn land, fran- chise made perpetual. Be it enacted by the General Assem- bly of the Commonwealth of Kentucky, That the Paducah & Tennessee Railroad Company, as now organized, shall have the right to build and operate a railroad in the city of Paducah by and with the consent of the city council of said city, and county of McCracken, in the state of Kentucky, from the terminus of any railroad bridge or transfer that may be built or established across the Ohio river in said county of McCracken, to any station or depot in the city of Paducah or junction with any railroad company in said city, and may extend its line of road by single, double or treble tracks in a southeastward!}' direction through the counties of McCracken, Marshall, and Calloway to the line of the state of Tennessee, in Calloway county, as said railroad company may select. It may establish and construct such depots, sidings, turntables, shops, transfer landings, and such other offices or structures as may be deemed expedient by the company, and may purchase, lease or otherwise acquire real estate and personal property for its railroad tracks, transfer landings, depots, sidings, shops, offices, and all other purposes of said railroad company. In the event it cannot agree with the owner for the purchase of any land or material for the use or construction of said rail- road, it may condemn the same under the general law of this state for its purposes and uses. The franchise of said Paducah & Tennessee Railroad Company is hereby made perpetual. NASHVILLE, CHATTANOOGA e agreed on, not exceeding one hun- dred thousand dollars, and pay the same in the bonds of such county, city, town, civil or common school district at par, said bonds to be negotiable in such sums and at such times as any county, city, town or common school district may deem proper, to bear a rate of interest not exceeding six per centum per annum, the interest to be represented by coupons attached to the bonds, payable semiannually in the city of Paducah. The bonds of any county, civil or common school district to be signed by the county judge and county clerk, with seal of the county, the coupons to be signed by the clerk alone, with seal of the county. The bonds of any city to be signed by the mayor and clerk of such city, with seal of city, the coupons to be signed by the clerk alone, with seal of city. The bonds of any town to be signed by the chairman of the trustees of such town and clerk, with seal of town, and the cou- pons to be signed by clerk alone, with seal of town. Said bonds to be executed and delivered by such county, city, town, civil or common school district upon such terms and conditions as may be agreed on by such county, city, town, civil or common school district. But before any such subscription shall become valid and binding, if of a county, civil or common school district, the county judge of any county, with a majority of the justices of the peace of any county, shall have the discretionary power to call a special election in any county, civil or common school district, giving not less than fifteen nor more than sixty days' notice, at which election the legal voters shall vote for and against the matter of subscription of stock to said railroad company; and if at any such election a majority of the qual- ified and legal voters of any such county, civil or common 524: LEASE, ETC., RELATING TO PADUCAH DIVISION school district, voting at such election shall vote in favor of the subscription of stock to said railroad company, the county judge of the county in which such election is held shall make the subscription accordingly; if to a city, the proposition to subscribe stock may, in the discretion of the council of any city, be submitted by the council of such city on such terms and conditions as may be agreed on; and if to a town, by the trustees of such town in their discretion; and if at such special election the proposition to subscribe stock be voted for by a majority of the legal and qualified voters of such city voting at such special election, the mayor shall make the subscription of stock to said railroad company in the name of any such city; and if the proposition to subscribe stock to said railroad company at any special election be voted in favor by a ma- jority of the legal voters of any such town, voting at any such election, then the chairman of the board of trustees of any such town shall make the subscription of stock to said railroad company in the name of such town. When the vote is by a city, the city council of such city shall fix the time when any special election shall be held under this act. When the vote is by a town, the trustees of any such town shall fix the time when the election shall be held, and when the vote is by a county, civil district or the common school district, the county judge of the county in which the election is proposed to be held shall fix the time when such election shall be held, and the officers authorized by law to compare polls in county elec- tions shall count and certify the result of any and all elections under this act. When the vote is by a city, the officers authorized by law to compare the polls in election for city officers shaH count and certify the result of all elections under this act, and when such vote is by a town, the trustees of any such town shall count and certify the result of any and all elections under this act. In case any county shall subscribe to the capital stock of said railroad company under this act, it is made the duty of the county court of such county so sub- scribing to levy annually a tax on the taxpayers of the county, on all property liable to taxation under the revenues laws of NASHVILLE, CHATTANOOGA y the General Assembly of the Com- monwealth of Kentucky, That the consolidation of the Paducah & Tennessee Railroad Company with the Paducah & Tennessee Railway Company and the Paducah & Tennessee Railroad Com- pany the last named two corporations in the State of Tennes- see under the name of the Paducah, Tennessee and Alabama Railroad Company, which consolidation was made and had on the fifteenth day of July, one thousand eight hundred and eighty-nine, be, and the same is hereby, approved, ratified, and confirmed. SEC. 2. Articles of agreement to be filed with secretary of State. That a copy of the articles of agreement and consol- idation as aforesaid of said companies, duly certified by the president of such consolidated company, and attested by the NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 529 secretary thereof, under its corporate seal, be filed with the secretary of state, and lodged as a part of the records of his office, within ninety days from the date this act shall take effect. SEC. 3. When act tO take effect. That no general law has been or can be enacted which will be applicable to this case, and the courts have no jurisdiction to grant the relief asked for, and the corj>orate existence of these consolidated companies being questioned, and their rights interfered with, and especially the right of said company to exercise the right of eminent domain for the purpose of its tracks and depot grounds; therefore, an emergency is hereby declared to exist, and this act shall take effect from and after its approval by the governor. (Became a law August 6, 1892, the Governor not having signed or returned the same to the house in which it originated within the time prescribed by law.) Acts of 1891-92-93 (Ky.), ch. 85, p. 311. DEED. J. W. PHILLIPS AND WIFE, ) TO L. & N. R. R. Co. This indenture made and entered into by and between J. W. Phillips and Nora A. Phillips, his wife, who joins herein as party of the first part, for the purpose of releasing all claim to dower in any of the hereinafter described property, as par- ties of the first part, and The Louisville & Nashville Railroad Company, a corporation organized and existing under and by virtue of the laws of the state of Kentucky, party of the second part Witnesseth: That, in consideration of the sum of one million six hundred and one thousand two hundred and thirty- five dollars ($1,601,235), being at the rate of thirteen thousand and five hundred dollars ($13,500) per mile of the line of railroad formerly of the Paducah, Tennes- see & Alabama Railroad Company, cash in hand, paid by the party of the second part, the receipt whereof is hereby acknowledged, the parties of the first part doth hereby grant, 34 530 LEASE, ETC., RELATING TO PADUCAH DIVISION bargain, sell, assign, transfer, and convey unto the said party of the second part, its successors and assigns, all and singular, the railroad and property formerly of the Paducah, Tennessee & Alabama Railroad Company, and described as follows: Extending; from within the citv of Paducah, in the State of > Kentucky, and running thence in a southerly direction through Description of ^ ne coun ties of McCracken, Graves, Marshall, and property sold. Calloway, in the State of Kentucky, and thence through the counties of Henry, Carroll, and Henderson, in the State of Tennessee, to a junction with the Tennessee Midland Railway Company at or near the town of Lexington, in said county of Henderson; and, also, all its lands, tenements, and hereditaments, its extensions, side tracks, spur tracks, and franchises, and all the easements and appurtenances thereunto belonging or anywise appertaining; also, all its railroad, ways, and rights of way, its depot grounds, tracks, bridges, viaducts, culverts, and other structures, its depots, stationhouses, engine- houses, carhouses, freighthouses, woodhouses, warehouses, machineshops, workshops, superstructures, and fixtures; also, all its locomotives, tenders, cars, rolling stock, and other equipments; also, all its rails, ties, chairs, machinery, tools, implements, fuel, and all materials whatsoever used for or in respect to constructing, operating, repairing, or replacing the said railroad or any part thereof; together with all the equip- ments and appurtenances whatsoever belonging to any of the aforementioned property; and, also, all the franchises con- nected with or relating to the said railroad, its extensions, and Franchises branches, all its property and corporate franchises, etc., pass. including its franchise to be a corporation; together with, all and singular, the tenements, hereditaments, and ap- purtenances of said railroad, except its books of account and choses in action and money on hand, including and intending to include all the property of said railroad company which was directed to be sold by the final decrees of forclosure and sale entered on the tenth day of July. 1895, by the circuit court of the United States for the district of Kentucky, at Paducah, and on the eleventh day of July, 1895, by the circuit court of NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 531 the United States for the eastern division of the western dis- trict of Tennessee, at Jackson, in the case of St. Louis Trust Company, complainant, against the Paducah, Tennessee & Alabama Railroad Company, defendant, and which was sold, under said decrees, by A. B. Lamb and J. R. Puryear, special masters appointed by said decrees, to J. W. Phillips, one of the parties of the first part hereto, on the eighteenth day of October, 1895, and which said sale was duly continued by said courts by orders entered in said cause, bearing dates, respect- ively, the twenty -eighth day of October, 1895, and the twenty- ninth day of November, 1895, and being the same property heretofore conveyed, by virtue of said sale and the confirma- tions thereof, to said J. W. Phillips, one of the parties of the first part hereto, by said A. B. Lamb and J. R. Puryear, special masters, by their deed, bearing date the thirteenth day of December, 1895, and by the Paducah, Tennessee & Alabama Railroad Company, by its quit-claim deed to said J. W. Phil- lips, bearing date the thirteenth day of December, 1895, and by William L. Huse and John Overton, Jr., receivers of said railroad and property, by their deed to said J. W. Phillips, bearing date the fourteenth day of December, 1895, including herein and intending to include in this conveyance all of the property acquired by said J. W. Phillips as aforesaid, includ- ing all of the property acquired on behalf of said railroad company from William L. Huse and John Overton, Jr., as receivers thereof, except the books, accounts, choses in action, and cash above referred to. To have and to hold unto the said Louisville & Nashville Railroad Company, and to its successors and assigns in fee simple, absolute and forever, together with all the rights, privileges and franchises appertaining thereto as fully and com- pletely as said J. W. Phillips, one of the parties of the first part, hereto holds or enjoys or is entitled to hold and enjoy the same by virtue of the said conveyance to him by said A. B. Lamb and J. R. Puryear, special masters as aforesaid, and by virtue of the conveyance to him by the Paducah, Tennessee & Alabama Railroad Company, as aforesaid, and by virtue of the 532 LEASE, ETC., RELATING TO PADUCAH DIVISION conveyance to him by William L. Huse and John Overton, Jr. , receivers as aforesaid, but subject to all the conditions, limita- tions, and restrictions imposed on the said railroad and property herein conveyed and the purchaser thereof or his assigns by the final decrees of foreclosure and sale made and entered by the said United States circuit courts for the district of Kentucky at Paducah and for the eastern division of the western district of Tennessee at Jackson, in the case of St. Louis Trust Com- pany, complainant, against the Paducah, Tennessee & Alabama Railroad Company, defendant, hereinbefore referred to. And reference is hereby made to the said final decrees of foreclosure and sale and to the orders confirming said sale entered in said cause and to the said deeds of A. B. Lamb and J. R. Puryear, special masters, and the Paducah, Tennessee & Alabama Rail- road Company, and William L. Huse and John Overton, Jr., receivers, executed and delivered as aforesaid to said J. W. Phillips, one of the parties of the first part, for further and full particulars in respect both to the property herein conveyed and to the conditions, limitations and restrictions thereon and on the said purchaser thereof imposed. And the said J. W. Phillips, one of the parties of the first part hereto, hereby covenants with the party of the second part that he will warrant and forever defend the title to all and singular the property hereinbefore conveyed to the party of the second part, its successors and assigns, against the lawful claims of all persons claiming or to claim the same or any part thereof, by, through, or under him; but no further or otherwise. In witness whereof, the parties of the first part have here- unto set their hands and seals, this, the fourteenth day of December, 1895. [SEAL.] J. W. PHILLIPS. [SEAL.] NORA A. PHILLIPS. STATE OF MISSOURI, ) City of St. Louis, j I, Charles H. Anderson, notary public for the city and state aforesaid, do hereby certify that the foregoing instrument of NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 533 writing from J. W. Phillips and wife, Nora A. Phillips, was this day produced to me by the parties, with whom I am per- sonally acquainted, and which was acknowledged by the said J. W. Phillips to be his act and deed, and that he executed the same for the purposes therein contained; and the contents and effect of the instrument being explained to the said Nora A. Phillips by me, separately and apart from her husband, she thereupon declared that she did freely and voluntarily execute and deliver the same, to be her act and deed, and consented that the same might be recorded. Given under my hand and seal of office, this fourteenth day of December, 1895. My term expires on the fourteenth day of November, 1897. CHARLES H. ANDERSON, Notary Public, City of St. Louis, Mo. The above deed was properly registered in the register's office of Henry county, Tenn., July 31, 1896, in book 4, pp. 502-505; in Carroll county, Tenn., August 11, 1896, in book 14, p. 559; in Henderson county, Tenn., August 17, 1896, in book 15, pp. 106-109; in McCracken county, Ky., July 30, 1896, in book 51, p. 235; in Graves county, Ky., July 29, 1896, in book 15, p. 391; in Marshall county, Ky., August 4, 1896, in book 24, p. 293-297; in Calloway county, Ky., August 5, 1896, in book 8, p. 59. CHAPTER XLII. LEASES BY NASHVILLE CHATTANOOGA & ST. LOUIS RAILWAY TO LOUISVILLE & NASHVILLE RAILROAD COMPANY OF TRACKS FROM LOUISVILLE A NASHVILLE RAIL- ROAD COMPANY'S OLD DEPOT IN NASHVILLE TO DECATUR DEPOT IN NASHVILLE. N. C. & ST. L. RY., j TO > Original Lease. L. & N. R. R. Co. ) Preamble. This agreement witnesseth: That, for the pur- pose of making closer connections, and of affording greater facilities for trude and travel, the Nashville & Chattanooga Rail- 534 LEASES OF CERTAIN NASHVILLE TRACKS. road Company and the Louisville & Nashville Railroad Com- pany have made the following contract, to wit: 1. Name changed. The corporate name was changed to the Nash- ville Chattanooga & St. Louis Railway May 30, 1873, by decree of chancery court at Nashville under Acts Tenn., 1870-1, ch. 54, p. 63. See Minute Book "X,' 1 pp. 22')-2. See also decree itself in this compilation, p. 25. 2. Agreement modified. This agreement was subsequently modified on July 1, 1896. The modification instrument is fully set out further on in this chapter, and to which reference is here made for the terms thereof. 3. Lease to Louisville & Nashville Terminal Company. The rail- road tracks conveyed in this lease were subsequently, on April 27, 1896, subleased by the Louisville & Nashville Railroad Company to the Louis- ville & Nashville Terminal Company, the Nashville, Chattanooga & St. Louis Railway joining therein. This lease was registered in the register's office of Davidson county, Tenn,, book 221, p. 175, and may be found further on in this compilation. The Nashville, Chattanooga & St. Louis Railway also executed a lease to the Terminal Company of certain tracks, which lease was registered in the register's office of Davidson county, book 220, p. 175, to which the Louisville & Nashville Railroad Company also subscribed on account of this agreement. 4. Terminal company subleases tracks to Nashville, Chattanooga &St. Louis Railway and Louisville & Nashville Railroad Company. Subsequently, on June 15, 1896, the Louisville & Nashville Terminal Company leased certain portions of the tracks, together with various other properties, back to the Nashville, Chattanooga & St. Louis Rail- way and the Louisville & Nashville Railroad Company jointly. This lease is registered in the register's office of Davidson county, book 222, p. 175. It is, also, fully set out herein. See chapter XLV1II. 1. Description Of tracks leased. The Nashville & Chatta- nooga Railroad Company agrees to give and guarantee to the Louisville & Nashville Railroad Company the right of way upon and perpetual use of the railroad tracks extending from the present depot of the Louisville & Nashville Railroad Com- pany at College street, Nashville, to the depot grounds of the Nashville & Decatur Railroad Company, Nashville, for the purpose of running thereon passenger and freight trains and engines, as the same may be necessary, between said depot at College street and said depot of the Nashville & Decatur Rail- road and between each of said depots and the union passenger depot. Said connecting tracks between the Louisville & Nash- ville Railroad depot and the Nashville & Decatur Railroad NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 586 depot is to run over part of the trestle connecting at present the Louisville & Nashville Railroad with the Nashville & Northwestern Railroad, and over a trestle or roadway to be constructed between the first named trestle and the Nashville & Chattanooga Railroad dei>ot, as hereinafter mentioned in this contract, and then through the depot grounds of the Nashville & Chattanooga Railroad to the south end of the southern approach cut of the tunnel, and then alongside of the main track of the Nashville & Chattanooga Railroad, as hereinafter mentioned, to the Nashville & Decatur Railroad depot. This depot was at the intersection of the Louisville & Nashville Rail- road Company's tracks and College street in Nashville, Tenn.. and was, also, known as " Linck's depot." Work is now in progress on anew depot, by the Louisville & Nashville Terminal Company, which depot, when finished, will be used by both the Louisville & Nashville Railroad Company and the Nashville, Chattanooga & St. Louis Railway. The depot is being erected on the south side of Broad street. 2. Connecting track between trestle of Northwestern branch and Chattanooga depot provided for. The Louisville & Nashville Railroad Company agrees to pay for the right of way sufficient for a connecting railroad track, to be built on trestles, and to construct in a first-class manner said trestles, and place thereon first-class railroad iron of fishbar pattern, from the trestle of the Nashville & Northwestern Railroad to the depot ground of the Nashville & Chattanooga Railroad Company; and said trestle and right of way thereafter to be the property of the Nashville & Chattanooga Railroad, and the whole of the trestle and track connecting the Louisville & Nashville Railroad depot with the Nashville & Chattanooga Railroad depot to be kept in good repair at all times by the Nashville & Chattanooga Railroad Company for the uninter- rupted use as required by the business of the Louisville & Nashville Railroad Company and the Nashville & Decatur Railroad Company. 3. Connecting track between Broad street tunnel and De- catur depot provided for. The Louisville & Nashville Rail- road Company agrees to lay, at its own ex|>ense, the Nashville & Chattanooga Railroad Company furnishing and guaranteeing 536 LEASES OF CERTAIN NASHVILLE TRACKS. the right of way for the same, a railroad track from the south end of the southern approach cut of the tunnel on the Nash- ville & Chattanooga Railroad at Nashville, and upon the present grade of said railroad, to the depot grounds of the Nashville & Decatur Railroad Company, for the exclusive use of the Louisville & Nashville Railroad Company and the Nash- ville & Decatur Railroad Company, to be kept in repair by the Louisville & Nashville Railroad Company; and the Nashville & Chattanooga Railroad Company covenants that such track may be used as aforesaid during the existence of said com- pany. But, for the present, and until the Nashville & Chat- tanooga Railroad Company is prepared to offer such right of way, it is understood that the free use of the present track of the Nashville & Chattanooga Railroad, between the south end of the tunnel and the depot of the Nashville & Decatur Rail- road, is to be given, instead of a separate track, for the passage of trains belonging to the Nashville & Decatur and the Louisville & Nashville Railroad Company, the running of which, however, is to be subject to the orders of the superin- tendent of the Nashville & Chattanooga Railroad, but without delay to the business of said railroad companies. 4. Union depot provided for. The Louisville & Nashville Railroad Company agrees to pay toward the erection of a suit- able union passenger depot building, on the present depot grounds of the Nashville & Chattanooga Railroad Company, fifty thousand dollars ($50,000), whenever the Nashville & Chat- tanooga Railroad Company shall contribute the same amount for said purpose and proceed to erect said depot, the sum of fifty thousand dollars ($50,000) to be paid by each party as the same may be necessary to be used in payment for the building of said depot, and the Louisville & Nashville Railroad Com- pany and the Nashville & Decatur Railroad Company are to have the free and perpetual and necessary accommodations for their passenger business in and about said depot, without let or hindrance from the Nashville & Chattanooga Railroad Com- pany or other parties to whom the said Nashville & Chatta- nooga Railroad Company may give the right to use said depot; NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 537 and the said Louisville & Nashville Railroad Company shall have the right to select the track in and about said depot, for the use of its passenger trains, in preference to any other company, except the Nashville & Chattanooga Railroad Com- pany, using the depot, and the Nashville & Chattanooga Railroad Company is to keep the depot building, tracks, necessary fixtures, and furniture used for the accommodation of the passenger business, in good repair. The expenses of lighting said building are to be borne equitably by the parties to this contract. The union depot provided for above will now doubtless never be built, as the Louisville & Nashville Terminal Company is, at this writing, erect- ing a magnificent depot on the south side of Broad street, which, when finished, will be used by both the Louisville fe Nashville Railroad Com- pany and the Nashville, Chattanooga & St. Louis Railway. 5. Lease not exclusive between Louisville & Nashville Rail- road Company depot and Chattanooga depot. it is agreed by the parties hereto that the Nashville & Chattanooga Railroad Company may permit other railroad companies to use the con- necting trestle and tracks between the Louisville & Nashville Railroad depot and the depot of the Nashville & Chattanooga Railroad Company, and also the union passenger depot, upon terms to be agreed upon between such other companies and the Nashville & Chattanooga Railroad Company; Provided, That such permit to use or the use thereof shall not hinder, delay or interfere with the free and prompt transaction of the business of the Louisville & Nashville Railroad Company over said trestle or connecting track and the union passenger depot. 6. Rental. In consideration of the above stipulations, and upon compliance with the same by the Nashville & Chattanooga Railroad Company, the Louisville & Nashville Railroad Com- pany agrees to pay to the Nashville & Chattanooga Railroad Company, eighteen thousand dollars ($18,000) per annum, in monthly payments of fifteen hundred dollars ($1,500) from and after the commencement of the use of said connect- ing track between the depot of the Louisville & Nashville Rail- road Company and the depot of the Nashville & Decatur Rail- road Company. 538 LEASES OF CERTAIN NASHVILLE TRACKS. 7. Arbitration provided for. In the event of any contro- versy or dispute by the parties as to their rights under it, or as to the performance of the stipulations of this contract, the same is to be settled by arbitration and the decision of three disinterested railroad experts, one to be selected by each party, and the other by the two first selected. 8. Right Of way provided for. It is understood that the Nashville & Chattanooga Railroad Company is the legal owner of the Nashville & Northwestern Railroad by purchase. But it is further understood that the Nashville & Chattanooga Rail- road Company may (if they elect so to do) furnish the right of way to the Louisville & Nashville Railroad Company to make the above connections, independent of any part of the Nashville & Northwestern Railroad. In witness whereof, the President of the Nashville & Chatta- nooga Railroad Company, on the part of that company, and the President of the Louisville & Nashville Railroad Company, on the part of the latter company, have set their hands and the seal of said companies this the first day of May, 1872. Signed in duplicate, [SEAL] NASHVILLE & CHATTANOOGA RAILROAD COMPANY, By E. W. COLE, President. Witness as to signature of E. W. Cole, President, W. A. GLEAVES, H. C. CARSON. [SEAL] LOUISVILLE & NASHVILLE RAILROAD COMPANY, By H. D. NEWCOMB, President. W. RAMSEY, Secretary. The above lease was properly acknowledged and registered May 8, 1872, in the Register's office of Davidson County, Tennessee, in book 46, page 104. N., C. & ST. L. RY. ) ,, ... ,. . . 7 ( Modification agreement as to . original L. & N. R. R. Co. j Parties. This contract entered into, this first day of July, 1896, between the Nashville, Chattanooga & St. Louis Rail- way, a corporation created, organized, and existing under the NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 589 law - of the state of Tennessee, and hereinafter called the first party, and the Louisville & Nashville Railroad Company, a corporation created, organized, and existing under the laws of the state of Kentucky, and hereinafter called the second party, witnesseth This contract modifies the one set out in the page next preceding. Preamble. WHEREAS, By an agreement, dated the first day of May, 1872, between the Nashville & Chattanooga Railroad Company and the second party, said Nashville & Chattanooga Railroad Company granted and guaranteed to the second party the right of way upon and perpetual use of a railroad track extending from the depot of the second party at College street, Nashville, Tenn., to the depot grounds of the Nashville & Decatur Railroad Company, Nashville, Tenn., in consideration of which, and of the other stipulations of said agreement, the second party agreed to pay the Nashville & Chattanooga Rail- road company one thousand five hundred ($1,500) dollars per month; and, WHEREAS, Said railroad track, so far as it had not already been constructed, was constructed in the manner provided in said agreement, and has since been used by said second party as provided in said agreement, the second party paying for such use the sum of one thousand five hundred ($1,500) dollars per month; and, WHEREAS, the first party is the successor to said Nashville & Chattanooga Railroad Company and has succeeded to all the latter company's rights and liabilities under said agreement ; and, Lease of Nashville, Chattanooga & St. Louis Railway Com- pany to Louisville & Nashville Terminal Company referred to. WHEREAS, the first party has, by a lease dated the 27th day of April, 1896, granted and demised to the Louisville and Nashville Terminal Company certain property in said lease described and embracing all of the aforesaid railroad track lying between Cedar and Spruce streets in said city of Nashville, Tennessee, for the terms and upon the conditions in said lease expressed ; and the second party has joined in the said lease 540 LEASES OF CERTAIN NASHVILLE TRACKS. for the purpose of granting and demising to the said Termina) Company all rights and privileges in the said demise property which it, the said second party, was entitled to under the said, agreement dated the first day of May, 1872 ; and, Lease of Louisville & Nashville Railroad Company to Louis- ville & Nashville Terminal Company referred to. WHEREAS, the second party has, by a lease dated the 27th day of April, 1896, granted and demised to the Louisville & Nashville Terminal Company certain property in said lease described to which the second party has title and which embraces all of the aforesaid railroad track lying between Gay and Cedar streets in said city of Nashville, Tennessee, for the term and upon the conditions in said lease expressed ; and the first party has joined in the said lease for the purpose of granting and demis- ing to the said Terminal Company all rights which it, the said first party, was entitled to under the said agreement of the first day of May, 1872 ; and, WHEREAS, By reason of said leases to said terminal company, the second party will, during the continuance of said leases and during the continuance of any renewals thereof that may be made as provided therein, have to look to and rely upon said terminal company for the use of all tracks, depots, and other facilities upon all the property so demised and granted as aforesaid by the first party to said terminal company, and by the second party to said terminal company, for all of which the said second party will have to make compensation or pay rent to said terminal company; Former lease suspended in part. Provision for revival, When. Therefore, it is hereby agreed, That, during the contin- uance of said leases and of any renewals thereof that may be made as provided therein, the said agreement of the first day of May, 1872, shall be suspended so far as it may in any way apply or relate to any of the property covered by said leases, and the said second party shall cease to pay to the first party the said one thousand five hundred ($1,500) dollars per month and every part thereof; but the second party shall continue to have the use of the remainder of the railroad track to which NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 541 said agreement of the first clay of May, 1872, relates, to wit, the railroad track from College street to Gay street (of which the second party shall have the uninterrupted use) and the railroad track from Spruce street south to the dej>ot grounds of the Nashville & Decatur Railroad Company (of which the second party shall have the exclusive use^, in accordance with the said agreement of the first day of May, 1872. And, in consideration of the uninterrupted use of the railroad track from College street to Gay street and of the exclusive use of the railroad track from Spruce street to the depot grounds of the Nashville & Decatur Railroad Company during the contin- uance of the aforesaid leases of the twenty-seventh day of April, 1896, and of any renewals thereof that may be made as provided therein, the second party hereby agrees that it will, during such time, maintain and keep in good repair and safe condition the said railroad track from College street to Gay street and the said railroad track from Spruce street to the depot grounds of the Nashville & Decatur Railroad Company, in accordance with all state and municipal laws affecting the same, and will pay all taxes and assessments thereon, and will assume and discharge all liabilities that may in any way attach to the first party by reason of the second party's maintenance and operation of said tracks, or by reason of the second party's failure to maintain the same. Whenever the said leases of the twenty-seventh day of April, 1896, or any renewals thereof that may be made as provided therein, shall be terminated for any cause whatever, or in any manner whatever, then the said agreement of the first day of May, 1872, shall be revived to the extent to which it is hereby suspended, and shall thereafter be of the same force and effect in every particular as it was up to the time of the making of the leases alxjve referred to, dated the twenty -seventh day of April, 1896, or as it was up to the date hereof; and thereafter the first party shall afford to the second party each and every right and facility provided for or secured to the second party in any way whatever in said agreement of the first day of May, 1872, and especially shall afford to the second party the use of a 542 LEASES OF CERTAIN NASHVILLE TRACKS. railroad track from Gay street to Spruce street, at least equal in convenience and all other respects to the track of which the second party has up to this time had the use, under said agree- ment dated the first day of May, 1872; and whenever said agreement shall again come into full force and effect in every particular, and the first party shall afford the second party all the rights and facilities therein provided for or secured to the second party, the second party shall again pay to the first party compensation at the rate of one thousand five hundred ($1,500) dollars per month as stipulated for in said agree- ment, and this contract shall cease and determine. This con- tract shall be binding upon the successors and assigns of the parties hereto as well as upon the parties hereto themselves. In witness whereof, the parties hereto have hereunto sub- scribed their names and affixed their corporate seals, the date first above written, in duplicate originals. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY. [SEAL.] By J. W. THOMAS, President. Attest: J. H. AMBROSE, Secretary. LOUISVILLE & NASHVILLE RAILROAD COMPANY. [SEAL.] By M. H. SMITH, President. Attest: J. H. ELLIS, Secretary. The above lease was properly signed and acknowledged by both companies, but has not as yet been registered. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 543 CHAPTER XLIII. LEASE OF JOINT USE OF TRACK FROM STEVENSON, ALABAMA, TO CHATTANOOGA TO MEMPHIS & CHARLESTON RAILROAD COMPANY. Parties. Tins AGREEMENT, entered into this first day of October, eighteen hundred and eighty, between the Nashville, Chattanooga & St. Louis Railway, a corporation created and existing under the laws of the states of Kentucky, Tennessee, and Alabama, as party of the first part, the Memphis & Charles- ton Railroad Company, a corporation created and existing under the laws, of the stales of Tennessee, Alabama, and Mississippi, as party of the second part, and the east Tennessee, Virginia, and Georgia Railroad Company, a corporation created and existing under the laws of the states of Tennessee, Virginia, and Georgia, as lessee of the railroad of the party of the second part, as party of the third part, witnesseth The Memphis & Charleston Railroad Company was sold to the South- ern Railway Company February 26, 1898, and is now operated by the latter company. 1. Consideration; part of road leased; duration of lease; Conditions. That the contract heretofore made on the twenty- third day of June, 1858, and which would expire on the twenty- third day of June, 1888, between the Nashville & Chattanooga Railroad Company, and the Memphis & Charleston Railroad Company, is hereby abrogated by mutual consent; Cons | dera . and that for and in consideration of the sum of tk>n - five thousand dollars ($5,000) per month to be paid monthly by the party of the second part, the party of the first part hereby leases and demises and guarantees to the Ptrtofroad party of the second part, the joint use of their line le * sed - of railway between Stevenson, Alabama, and Chattanooga, Tennessee, for a period of eight (8) years from the Duratton of first day of October, 1880, for the passage of all '"** freight and passenger trains of the Memphis & Charleston 54:4 LEASE OF TRACK FROM STEVENSON TO CHATTANOOGA. Railroad, running upon schedules to be made by the officers of the Nashville, Chattanooga & St. Louis Railway, allowing not exceeding: one hour and forty-five minutes for Conditions. passenger trains, and four hours for freight trains between those points, unavoidable accidents and delays ex- cepted; the leaving time at Stevenson and Chattanooga to be designated by the proper officers of the Memphis & Charleston Railroad Company. It being understood that the same facili- ties are to be allowed the trains of the Memphis & Charleston Railroad Company as are allowed trains of the same class of the Nashville, Chattanooga & St. Louis Railway, both as regards speed and rights to main track, whether running on regular schedule or by special orders. Said trains to be run at the expense and risk of the Memphis & Charleston Railroad Company, except for such damages as are caused by fault of the party of the first part, or by the neglect or carelessness of the officers or employes of the Nashville, Chattanooga & St. Louis Railway; the trains of the Memphis & Charleston Rail- road Company to be allowed to take water from the water stations between Stevenson and Chattanooga without charge, not including water at the two points named. 2. Conditions (continued.) The passenger trains of the party of the second part are to run to the present car shed at Chat- tanooga, and are to have the right to use any side tracks be- longing to the Nashville, Chattanooga & St. Louis Railway necessary in making up said passenger trains, but the freight trains of the Memphis & Charleston Railroad are to pass through the yard of the Nashville, Chattanooga & St. Louis Railway over a connecting track or tracks, with their own track, and to and from any railroad with which the Nashville, Chattanooga & St. Louis Railway tracks connect or may here- after connect, during the existence of this contract. 3. Connecting track in Chattanooga to be kept clear. it is also agreed that one track connecting with the tracks of the Memphis & Charleston Railroad Company's tracks, and with the tracks of other roads in Chattanooga shall be kept clear for the passage of said trains of the Memphis & Charleston Rail- NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 545 road both ways, and no unnecessary delay is to be caused said trains whether they arrive or depart on their schedule time or not. 4. Main track to be kept in first-class order The Nash- ville, Chattanooga & St. Louis Railway Company agrees and binds itself to keep their road between Stevenson, Ala., and Chattanooga, Tenn., and at Chattanooga in first-class order. 5. Employes to be under whose orders. The train men of the Memphis & Charleston Railroad Company, while on the joint track between Stevenson and Chattanooga, shall be under tin- control of the officers of the Nashville, Chattanooga & St. Louis Railway Company so far as the movement of their trains arc concerned, and shall be subject to the same rules and regu- lations as the trainmen of the Nashville, Chattanooga & St. Louis Railway, but are to be paid by the Memphis & Charles- ton Railroad Company. 6. Chattanooga terminal facilities provided for. The Mem- phis & Charleston Railroad Company are to furnish their own terminal facilities, yard room, freight and passenger depots at Chattanooga, but they shall have the right to deliver any cars from their line to any mills or factories located in or about the city of Chattanooga on the sidetracks of the Nash- ville, Chattanooga & St. Louis Railway, or on tracks connect- ing therewith; also, to receive any cars for their line or con- nections from such mills or factories. 7. Local business between Stevenson and Chattanooga provided for. It is further understood and agreed between said parties that the Memphis & Charleston Railroad Company shall not do or undertake to do any local business between Stevenson and Chattanooga or to disturb the local business of the Nashville, Chattanooga & St. Louis Railway, that business being conceded to belong to the last named company. The Memphis & Charleston Railroad Company have the right, however, to take freight to local stations on the Nashville, Chattanooga & St. Louis Railway between Stevenson and Chattanooga coming from local stations on its road west of Stevenson, or to receive freight at such stations going to local stations on its road west of Stevenson. 35 546 LEASE OF TRACK FROM STEVENSON TO CHATTANOOGA. 8. Suits for damages on line of road provided for. in case of a suit by a passenger or shipper against the Nashville, Chat- tanooga & St. Louis Railway, except for damages caused by its own negligence or fault, then it is to be indemnified by the Memphis & Charleston Railroad Company, and in case of suit by a passenger or shipper against the Memphis & Charleston Railroad Company, except for damages caused by its own neg- ligence or fault, then it is to be indemnified by the Nashville, Chattanooga & St. Louis Railway. 9. Memphis & Charleston Railroad Company to have fees for through mail, When. The Memphis & Charleston Railroad Company is to receive from the postoffice department the pay for all through mail carried in their cars from and after the date of this contract. r 10. Agents of the Nashville, Chattanooga & St. Louis Rail- way to be agents of the Memphis & Charleston Railroad Co. When. The agents of the Nashville, Chattanooga & St. Louis Railway at the intermediate stations between Stevenson and Chattanooga shall act as the agents of the Memphis & Charles- ton Railroad Company for receiving and billing freight and delivering freight to such intermediate stations, and collecting the money and paying the same over to the Memphis & Charleston Railroad Company. 11. Telegraph wires provided for. The Memphis & Charleston Railroad Company shall have the right to erect a telegraph wire on the poles of the Nashville, Chattanooga & St. Louis Railway for its own use, in so far as that company has the right to confer this privilege at present, but it will grant the privilege absolutely after the first day of May, 1882, and in the repairs of said wire the Nashville, Chattanooga & St. Louis Railway will give the same labor and attention that it does to its own wires or to those of the Western Union Tele- graph Company running along the line of its road. 12. Contract transferrable. This contract shall be trans- ferrable, and shall be used under the lease of the road of the Memphis & Charleston Railroad Company to the East Tennes- see, Virginia & Georgia Railroad Company. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 547 13. Arbitrators provided-tor. In case of any misunder- standing as to the intent or meaning of this contract, or the practical workings thereof, the question is to be referred to two (2) arbitrators, one to be selected by each company, and, if necessary, they to select a third, and the decision of such arbitration to be tinal as between the two companies. 14. Duration of lease; how terminated. This contract shall continue in force for eight (8) years from October 1, 1880, and thereafter until terminated by two years' notice pre- viously given by either party of a desire to terminate it, it being understood that notice may be given at any time on or after six years, so as to terminate the contract on or after the expiration of eight years. 15. Old lease abrogated. The East Tennessee, Virginia & Georgia Railroad Company and the other parties to this con- tract hereby assent to the annullment or abrogation of the contract of lease made and entered into between the Nashville & Chattanooga Railroad Company and the Memphis & Charles- ton Railroad Company, bearing date the twenty-third day of June, 1858, and hereby agree to and do substitute this con- tract of lease for and in the stead of the aforesaid contract of lease, and the East Tennessee, Virginia & Georgia Railroad Company, as lessee of the Memphis & Charleston Railroad, hereby accepts such substitution, with the right to use the same as fully as it heretofore had the right to use the afore- said contract, which is hereby abrogated and annulled. In witness whereof the subscribing parties have affixed their respective hand and seal, this twenty-ninth day of September, 1880, in duplicate. For the NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY Co., J. \V. THOMAS, General Superintendent. For the MEMPHIS & CHARLESTON RAILROAD COMPANY, R. T. WILSON, President. For the EAST TENNESSEE, VIRGINIA & GEORGIA RAILROAD Co., E. W. COLE, President. JAMES G. MITCHELL, Secretary. 54:8 LEASE OF TRACK AT DALTON, GA. 1. The foregoing instrument was properly acknowledged by R. T. Wilson and E. W. Cole as president of their respective companies. The board of directors of the Nashville, Chattanooga & St. Louis Rail- way authorized J. W. Thomas, as general superintendent, to sign and subsequently ratified it September 29, 1880. 2. The Memphis & Charleston Railroad Company was sold to the Southern Railway Company, February 26, 1898, and is now operated by the latter company. CHAPTER XLIV. LEASE OF JOINT USE OF TRACK OF WESTERN A ATLANTIC RAILROAD AT DALTON, GA., TO EAST TENNESSE, VIR- GINIA & GEORGIA RAILWAY COMPANY. [The East Tennessee, Virginia & Georgia Railway is now owned and operated by the Southern Railway Company.] Parties. This agreement, entered into this thirty-first day of October, 1891, between the Nashville, Chattanooga & St. Louis Railway, lessee of the Western & Atlantic Railroad, party of the first part, and the East Tennessee, Virginia & Georgia Railway Company, party of the second part, witness- eth: i. Description of leased premises; duration of lease. That, for and in consideration of payments to be made as here- inafter provided, and other valuable considerations, the first party hereby leases unto the second party the joint use of so much of a track next east of its present passenger station as lies between a switch by which the East Tennessee, Virginia & Georgia Railway connects with it near the west side of Waugh street, in Dalton, Ga., to a point near the north line of Gordon street, being near the southern end of its station grounds at Dalton, at which point is a switch where the East Tennessee, Virginia & Georgia Railway, from the south, connects with it, being shown in blue print herewith with heavy line, said track being about (1,000) one thousand feet long and that now being jointly used by the East Tennessee, Virginia & Georgia Rail- Duration wa y Company. Said lease to continue in force for of lease. g ve y ears f rO m November 1, 1891, unless abro- gated by the East Tennessee, Virginia & Georgia Railway NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 549 Company, by giving six months' notice to the Nashville, Chattanooga & St. Louis Railway. 2. Consideration; track to be kept in order by, who. The East Tennessee, Virginia & Georgia Railway Company agrees, for such joint use of the above mentioned track, to pay to the first party monthly, in due course of business, the sum of two hundred and fifty dollars, it being understood and agreed that such payments of two hundred and fifty dollars shall be in full for the use of the one thousand (1,000) feet of track herein described. The first party is to maintain the track in good condition at its own cost and ex[>ense. The track herein leased shall be kept free from standing cars, so as at all times to permit the passage of the second party's trains. 3. Who to be liable for accidents or damages. It is mutu- ally agreed that each party is to l>e responsible for all claims or damages to its trains, and to property, persons or stock, arising from or in connection with such trains, unless such claims or damages shall arise from the neglect or carelessness of the other party or its employes or agents, in which case the negligent party shall hold the other harmless. 4. Arbitration provided for. In case of any misunderstand- ing as to the intent or meaning of this contract or its practical workings the question shall be referred to two arbitrators, one to be selected by each company, and if necessary they shall select a third, and the decision of such arbitration shall be final and conclusive as between the two companies. In witness whereof, the parties hereto, by their proper officers having authority to act, have signed and executed this agreement, in duplicate, on the day and year first above written. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, Lessee of Western & Atlantic Railroad. [SEAL.] J. W. THOMAS, President. Attest: J. H. AMBROSE, Secretary. EAST TENNESSEE, VIRGINIA & GEORGIA RAILWAY COMPANY. [SEAL.] By HENRY FINK, Vice President. L. M. SCHWAN, Secretary. The East Tennessee, Virginia & Georgia Railway is now owned and operated by the Southern Railway Company. 550 LEASE TRACK BETWEEN WAUHATCHIE AND CHATTANOOGA. CHAPTER XLV. LEASE OF JOINT USE OF TRACK BETWEEN WAUHATCHIE & CHATTANOOGA TO ALABAMA GREAT SOUTH- ERN RAILROAD COMPANY. Parties. This agreement entered into the eighteenth day of January, eighteen hundred and eighty-one (1881) by and be- tween the Nashville, Chattanooga & St. Louis Railway, a cor- poration created and existing under the laws of the states of Kentucky, Tennessee and Alabama, as party of the first part, and the Alabama Great Southern Railroad Company, a cor- poration created and existing under the laws of the State of Alabama and recognized by the laws of Tennessee, Georgia and Mississippi, as party of the second part, witnesseth: The Southern Railway Company owns a controlling interest in the stock of the Alabama Great Southern Railroad Company. i. Consideration, part of road leased, duration of lease, Conditions. That for and in consideration of the sum of four- teen thousand four hundred dollars ($14,400) per annum, to be paid in monthly installments of twelve hundred dollars ($1,200) each by the party of the second part, the party of the first part hereby leases, demises and guarantees to the Part of road P ar ty ^ the second part the joint use of its line of leased. railway between Wauhatchie and Chattanooga, Tennessee, for a period of thirty-three (33) years from the Expiration of ^ rs ^ day of January, 1881, and until this contract Iease - is terminated as hereinafter provided, for the passage of all freight, passenger and other trains of the Ala- bama Great Southern Railroad Company running upon schedules to be made by the officers of the Nashville, Chatta- nooga & St. Louis Railway, allowing not exceeding fifteen (15) minutes for passenger and thirty (30) minutes for freight trains between those points, unavoidable accidents and delays excepted; the leaving time at Wauhatchie NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 551 and Chattanooga to be designated by the proper officers of the Alabama Great Southern Railroad Company, the party of the first part having the right to vary this leaving time either way fifteen (15) minutes for passenger trains and thirty (30) minutes for freight trains, it being understood that the same facilities are to be allowed the trains of the Alabama Great Southern Railroad as are allowed trains of the same class of the Nash- ville, Chattanooga & St. Louis Railway, both as regards speed and rights to main track, whether running on regular schedule or by special orders, and in case a passenger train of the party of the second part and a freight train of the party of the first part are moving in the same direction, the passenger train of the Alabama Great Southern Railroad shall in all cases have preference over the Nashville, Chattanooga & St. Louis Rail- way freight train. The trains of the party of the second part to be run at the expense and risk of the Alabama Great South- ern Railroad Company except for such damages as are caused by fault, default, or negligence of the party of the first part, or by the neglect or carelessness of the officers or employes of the party of the first part. 2. Conditions (Continued). The passenger trains of the party of the second part are to run to and from the present union passenger depot at Chattanooga, if so desired by them, the use of the depot, however, to be arranged for with the roads owning the same; and their freight trains to and from the present junction of the Alabama Great Southern Railroad with the main track of the Nashville, Chattanooga & St. Louis Railway in the city of Chattanooga. The trains or engines of the party of the second part to have free ingress or egress to and from all sidetracks that are now, or that may hereafter be, constructed and belong to the party of the first part between Lookout mountain and Montgomery avenue in the city of Chattanooga, for the purpose of delivering freight from and receiving freight destined to points ujKm the line of the party of the second part; and the trains or engines of the Nashville, Chattanooga & St. Louis Railway to have free access to any or all present or future sidetracks of the party of the second part 552 LEASE TRACK BETWEEN WAUHATCHIE AND CHATTANOOGA. in the city of Chattanooga, for the purpose of delivering freight from and receiving 1 freight destined to points upon the line of the party of the first part. 3. Employes to be under whose instructions. The em- ployes of each company shall be under the instructions of the officers of the company upon whose track they may be. 4. Road tO be kept Up, by Who. The Nashville, Chattanooga & St. Louis Railway is to maintain a first-class roadbed be- tween Wauhatchie and Chattanooga in all its essentials; to properly ballast, and keep ballasted, the track; to drain and repair, and keep in repair, the embankments, cuttings, water- ways, and river walls, and to renew and maintain all bridges in in the highest state of efficiency; and, when renewals of the present rails are necessary, to relay said track with steel rails weighing not less than fifty-eight (58) pounds per lineal yard. The party of the second part shall have the privilege to make official representation to the party of the first part of any requirement needed to keep the track in the highest state of efficiency, but the Alabama Great Southern Railroad Company shall not in any way be responsible ultimately for the safe condition of said track. 5. Traffic facilities; block system provided for. The party of the first part to provide every facility for the safe and expeditious working of the traffic, and to apply the block sys- tem and most approved electrical apparatus within a reasonable time, and make a passing point between Wauhatchie and Lookout Mountain whenever such becomes necessary, subject, however, to the stipulations of this agreement or contract. 7. Termination of lease provided for. it is also agreed and understood that at any time after the first day of January, nineteen hundred and eleven (1911), either party can give three years' notice in writing to terminate this agreement, and in case such notice is given, this contract to continue in force for three years after the giving of such notice by either party. 8. Signing of lease to conform to by-laws, etc. This agreement to be made effectual in accordance with the by-laws and charters of each respective company, if anything of that NASHVILLE, CHATTANOOGA elow mentioned signing, and sealing IHJ necessary to make this contract effectual. In witness whereof, the parties hereto have caused these presents to be signed by their respective presidents and secre- taries, and their corporate seals to be affixed hereto, this the seventeenth day of February, eighteen hundred and eighty-one. THE NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, [SEAL.] By JAS. D. PORTER, President. R. C. BRANSFORD, Secretary. The seal of the Alabama Great Southern Railroad Company was hereto affixed this fifteenth day of March, 1881, in the presence of AUGUSTUS B. AHNHUSER, President. [SEAL.] R. V. TOMLINSON, Secretary. Extract from the minutes of board meeting of the Alabama Great Southern Railroad Company, held the fifteenth day of March, 1881. Read the agreement in duplicate entered into the fifteenth day of January, 1881, between the Nashville, Chattanooga & St. Louis Railway, of the first part, and the Alabama Great Southern Railroad Company, of the second part, as to the use by the latter company of the track of the Nashville, Chatta- nooga & St. Louis Railway, between Wauhatchie and Chatta- nooga, sealed with the seal of the Nashville, Chattanooga & St. Louis Railway, and signed by the president and secretary on the seventeenth of February, 1881, and the agreement having been fully considered. It was resolved that the seal of this company be affixed to both parts of the said agreement in the presence of the president and the secretary, and that when so executed one part be re- turned to Mr. Scott together with a copy of this resolution. [Correct extract.] R. V. TOMLINSON, Secretary. The Southern Railway Company now owns a controlling interest in the stock of the Alabama Great Southern Railroad Company. 554 LEASE TO S. A. L. B. R. R. CHAPTER XLVI. LEASE TO SEABOARD AIR LINE BELT RAILROAD COMPANY OF TERMINAL FACILITIES AT ATLANTA, GEORGIA, FOR ITSELF AND GEORGIA, CAROLINA & NORTHERN RAILWAY, AND CONTRACT FOR INTER- CHANGE OF BUSINESS BY AND WITH NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. Parties. THIS AGREEMENT, made and entered into the first day of October, A. D. eighteen hundred and ninety-two, between the Nashville, Chattanooga & St. Louis Railway, lessee of the Western & Atlantic Railroad, party of the first part, and the Seaboard Air Line Belt Railroad Company, a corporation duly incorporated and existing under the laws of the state of Georgia, party of the second part: WITNESSETH, that, Preamble. WHEREAS, The said party of the second part is authorized by its charter or act of incorporation to construct and operate a railroad from a point at or near North Decatur, a station on the Georgia, Carolina and Northern Railway, to a point at or near Ho well's, a station on the said Western & At- lantic Railroad, said connection at or near Howell's to be made in such manner as to form what is commonly known as a " Y ' track; and, WHEREAS, The said party of the second part has commenced the construction of said railroad or belt line between the points named; and, WHEREAS, It is considered for the best interest of both the said party of the first part and the said party of the second part that an agreement should be made to facilitate the doing of business over said railroad and for the interchange of traffic. Interchange of business provided for, conditions, duration Of contract. Now, THEREFORE, THIS AGREEMENT FURTHER WITNESSETH, That in consideration of the premises and for NAMIMLLE, CHATTANOOGA A ST. LOUIS RAILWAY. 555 th6 purposes aforesaid, the said Nashville, Chattanooga & St. Louis Railway, lessee of the Western & Atlantic Railroad, party of the first part, covenants and agrees that, upon the completion of said railroad from a point at or near North Decatur, a station on the Georgia, Carolina and Northern Rail- way, as aforesaid, to a point at or near Howell's, a station on the said Western & Atlantic Railroad, it will, for and during the unexpired term of its lease of the said Western & Atlantic Railroad, to-wit, for a term of twenty-seven (27) years, be the same more or less, interchange business, both through and local, with said Seaboard Air Line Belt Railroad and its con- necting lines upon terms as favorable and as advantageous to said road and its connecting lines as those given to any other railroad entering the city of Atlanta. Receiving and delivering cars on tracks at Howell's pro- vided for; Consideration. And the said Nashville, Chatta- nooga & St. Louis Railway, lessee as aforesaid, further covenants and agrees that it will receive and deliver loaded cars on connecting tracks at Howell's from and to said Sea- board Air Line Belt Railroad Company, or any of its connect- ing lines of the Seaboard Air Line system, to and from any railroads connecting at Atlanta, which may now or which may be hereafter reached directly, or connect with said Western & Atlantic Railroad, at the rate of two dollars ($2) per car. Joint use of union depot at Atlanta provided for; considera- tion. And the said Nashville, Chattanooga & St. Louis Rail- way, lessee as aforesaid, further covenants and agrees that, in the event the said Sealxmrd Air Line Belt Railroad Company should desire and determine to use the union depot in the city of Atlanta for the passenger trains of the Georgia, Carolina & Northern Railway, then and in that event, it shall have the right and privilege of using the tracks of the Western & Atlantic Railroad for that purpose u|x>n paying to said Nash- ville, Chattanooga & St. Louis Railway, lessee as aforesaid, the sum of twelve thousand five hundred dollars per annum ground rent for the joint use by their passenger trains of the union depot* in Atlanta, and, in addition, one thousand dollars 556 LEASE TO S. A. L. B. R. R. per annum to the roads owning the union depot building, and also their proportion of the operating expenses and mainten- ance of the depot, to be proportioned as at present divided by the board of control of the union depot, the true intent and meaning of this provision being to give to the said Sea- board Air Line Belt Railroad Company, party of the second part, the right to use said railroad tracks and depot building for the passenger trains of the Georgia, Carolina & Northern Railway, upon the same terms and conditions and upon the same rentals as those now prescribed for and paid by the Georgia Pacific Railway Company for similar privileges, and it is further agreed that should any reduction be made to the Georgia Pacific Railway Company for the use of said privileges, a similar reduction shall be made to the Seaboard Air Line Belt Railroad Company. Cleaning and storing of engines and cars provided for; Consideration. And the said Nashville, Chattanooga & St. Louis Railway, lessee as aforesaid, further covenants and agrees to store and clean the passenger engines and coaches of the said Seaboard Air Line Belt Railroad Company, and those used by it belonging to the Georgia, Carolina & Northern Railway, while laying over at Atlanta, at the rate of one dollar for each engine or coach so stored and cleaned, and charge actual cost for switching, hostling, repairs, supplies, fuel, or water furnished to said engines or coaches. Termination of contract in part, provided for. And it is mutually understood, covenanted, and agreed that the said Seaboard Air Line Belt Railroad Company is to have the right to terminate and annul this agreement, so far as the same refers to passenger trains, engines, and coaches, upon giving to said Nashville, Chattanooga & St. Louis Railway, lessee as aforesaid, thirty days' notice in writing of its intention so to do. In witness whereof, the said Nashville, Chattanooga & St. Louis Railway, lessee of the Western & Atlantic Railroad, and the said Seaboard Air Line Belt Railroad Company, have caused these presents to be signed by their respective presidents and their corporate seals to be hereto affixed and attested by NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 557 their respective secretaries, the day and year first above written. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, [SEAL.] By J. W. THOMAS, President. Attest: J. H. AMBROSE, Secretary. SEABOARD AIR LINE BELT RAILROAD COMPANY, [SEAL.] By JNO. H. WINDER, President. Attest: HASKLL THOMAS, Secretary. CHARTER XLVII. LOUISVILLE AND NASHVILLE TERMINAL COMPAS*'. [Union depot and Terminal facilities at Nashville.) Property of, how acquired by Nashville, Chattanooga & St. LOUiS Railway. The Louisville g feet on the east line of McC'reary street, measured northwardly from the north line of Grundy street, the width of said parcel of land in the rear being 35 % feet, measured north- wardly from said north line of Grundy street, the depth of said lot or parcel of land, measured through the center thereof, being 145 feet; it being the same conveyed to E. C. Lewis by C. C. Christopher by deed dated June 25, 1892, registered in book No. 185, page 92, register's office of Davidson county. 15. All of lots Nos. 122 and 123 in said Hynes' addition to the city of Nashville, said lots fronting each 79 feet on the east side of McCreary street, beginning on the east side of said street 140 feet from the south line of Church street; thence extending southwardly along the east side of McCreary street 158 feet, more or less; thence ea-stwardly 145 feet to the rear line of said lots; thence northwardly 152 feet to the southeast corner of lot No. 120; thence westwardly along the south line of lots 120 and 121, 145 feet, to the point of beginning; being the same lots con- veyed to E. C. Lewis by S. M. Douglas and wife by deed dated January 20, 1891, registered in book No. 208, page 422, register's office of Davidson county. 16. A lot or parcel of land, bounded and described as follows: Begin- ning at the southeast corner of Cedar and Walnut streets, thence extend- ing in a southerly direction with the east line of Walnut street 121% feet; thence eastwardly, parallel with the south line of Cedar street, 130 feet; thence northwardly, parallel with the east line of Walnut street, 121% feet to the south line of Cedar street; thence with the south line of Cedar street westwardly 130 feet to the point of beginning: the west 30 feet of said tract fronting 121% feet on the east line of Walnut street, being the same conveyed to E. C. Lewis by Andrew Jackson, by deed dated March 4, 1890, legistered in book 208, page 420, register's office of Davidson county; the remainder of said tract fronting 100 feet on the south side of Cedar street, and extending southwardly 121% feet, being the same conveyed to said Lewis by R. L. Weakley by deed dated March 8, 1890, registered in book 159, page 529, register's office of Davidson county. 570 LEASE OF TERMINAL FACILITIES AT NASHVILLE. 17. Two tracts or parcels of land, bounded and described as follows: The first beginning at a point on the north side of Cedar street, south- east corner of the land owned by John Corcoran's heirs, said corner being 71.6 feet more or less east of the east line of Belleville street; thence extending in an easterly direction with the north line of Cedar street 66}^ feet to an iron post, southwest corner of the land purchased by the Louisville & Nashville Railroad Company from B. B. Leake, by deed dated the sixth day of June, 1872; thence in a northerly direction with the west line of said railroad company's property 270 feet to the south line of Shankland street; thence in a westerly direction with the south line of Shankland street 35 feet; thence in a southerly direction parallel with said railroad company's west line, 120 feet; thence in a westerly direction parallel with the north line of Cedar street 31% feet to the northeast corner of land belonging to the John Corcoran heirs; thence in a southerly direction parallel with said railroad company's west line, 150 feet to the point of beginning. The second beginning at a point on the north line of Cedar street, southwest corner of lot belonging to Sarah Crahan; thence extending in a northerly direction with the west line of the lot of said Sarah Crahan 270 feet to the south line of Shankland street; thence in a westerly direction with the sputh line of Shankland street 88 feet, more or less, to the east line of the land purchased by the Louisville & Nashville Railroad Company from B. B. Leake, by deed, dated sixth day of June, 1872; thence in a southerly direction with the east line of said railroad company's land 90 feet to the north line of the land purchased by J. W. Thomas, agent, from Michael Quinn and wife, by deed, dated the twenty -first day of September, 1886; thence in an easterly direction with the north line of said lot 29 feet, more or less, to the northeast corner of the same; thence in a southerly direction with the east line of said lot 180 feet, more or less, to the north line of Cedar street; thence in an easterly direction with the north line of Cedar street; thence in an easterly direction with the north line of Cedar street 59 feet, more or less, to the point of beginning; said two tracts being the same conveyed to E. C. Lewis by Andrew Jackson, by deed, dated March 4, 1890, regis- tered in book 208, page 420, register's office of Davidson county. Being all the pieces or parcels of land, with their appurtenances, which were conveyed to the terminal company by E. C. Lewis and Pauline D. Lewis, his wife, by deed, dated the thirty-first day of March, 1896, registered in book 207, page 481, register's office of Davidson county. II. 1. Description of real estate leased (continued). All of lots Nos. 81 and 83 in McNairy's addition to the city of Nashville, each fronting 50 feet on the south side of McGavock street and extending southwardly between parallel lines 166 feet to an alley; also all of lots 145 and 147 in said addition, each fronting 50 feet on the north side of Demonbreun street, and extending northwardly between parallel lines 166 feet to an NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 571 alley; also a triangular-shaped tract of land, composed of lots Nos. 294, 295, 296, and 329 in said McNairy's addition to the city of Nashville, said tract fronting 208 feet on the south side of Laurel street and ex- tending southwardly to Kayne avenue, the west line of said tract being parallel with McNairy street, said lots or parcels of land being the same conveyed to J. W. Thomas, agent, by Alfred Kayne, by deed, dated August 14, 1890, registered in book 195, page 272, register's office of Davidson county. 2. All of lot No. 143 in McNairy's addition to the city of Nashville' fronting 50 feet on the north side of Demonbreun street, and extending northwardly between parallel lines 166 feet to an alley; also, an irreg- ular tract of land composed of lots 250 and 251 in said addition, bounded and described as follows: Beginning at a point on the north line of Laurel street, at the boundary line between lots 251 and 252, thence extending in a northerly direction, with said boundary line, 170 feet to an alley; thence in an easterly direction, with the south line of said alley, 120 feet, more or less, to the west line of Kayne avenue; thence in a southerly direction, with the west line of Kayne avenue, to the north line of Laurel street; thence in a westerly direction, with the north line of Laurel street, to the point of beginning; said lots or parcels of land being the same conveyed to J. W. Thomas, agent, by Alfred Kayne by deed dated July 8, 1890, registered in book 196, page 232, register's office of Davidson county. 3. All of lot No. 150 in McNairy's addition to the city of Nashville, 'fronting 50 feet on the south side of Demonbreun street, and extending southwardly between parallel lines 175 feet to an alley, it being the same conveyed to J. W. Thomas, agent, by Alfred Kayne by deed dated September 13, 1890, and registered in book 196, page 234, register's office of Davidson county. 4. All of lot No. 13 in McNairy's addition to the city of Nashville, fronting 50 feet on the north side of Broad street, and extending north- wardly between parallel lines 175 feet, more or less, to an alley, it being the same conveyed to J. W. Thomas, agent, by the McGavock fe Mt. Vernon Horse Railroad Company by deed dated October 30, 1890, regis- tered in book 195, page 286, register's office of Davidson county. 5. All of lots Nos. 2 and 3 in J. E. Gleaves' addition to the city of Nashville, as recorded at page 116, plan book of the chancery court at Nashville, Tennessee, and at page 29 of book 21, register's office of Da- vidson county; said lot No. 2 fronting 180 feet, more or less, on the north side of Gleaves street, and lot No. 3 fronting 50 feet on the same side of said street, and adjoining said lot No. 2 on the west, both lots running back northwardly to the line of the Nashville, Chattanooga & St. Louis Railway's land, and are of irregular depths, they being the same conveyed to J. W. Thomas, agent, by Minnie Gleaves by deed dated February 5, 1886, registered iu book 93, page 329. register's office of Davidson county. 6. All of the tract of land known as lot No. 142, of McNairy's addition to the city of Nashville, as it appears of record in the register's office of 572 LEASE OF TERMINAL FACILITIES AT NASHVILLE. Davidson county, book 9, page 328, bounded and described as follows: Beginning at the intersection of the south line of Demonbreun street, with what was originally the west line of the Middle Franklin turn- pike, running thence westwardly with the south line of Demonbreun street 148 feet; thence southwardly, parallel with McNairy sti-eet, 175 feet to an alley; thence eastwardly along said alley 32 feet to what was originally the west line of said Middle Franklin turnpike; thence north- wardly with what was originally the west line of said turnpike, to the point of beginning; it being the same tract or parcel of land conveyed to said J. W. Thomas, agent, by E. C. Lewis, by deed registered in book 83, page 428, register's office of Davidson county. 7. All of lots 139 and 140, in McNairy's addition to the city of Nash- ville, each fronting 50 feet on the north side of Demonbreun street, and extending northwardly between parallel lines to an alley; also all of lot No. 67 in said addition, fronting 50 feet on the south line of Mc- Gavock street, and extending southwardly between parallel lines to an alley, said lots being the same conveyed to J. W. Thomas, by Amanda J. Porter, by deed dated November 2, 1881, registered in book 175, page 145, register's office of Davidson county. 8. All of lot No. 141, in McNairy's addition to the city of Nashville, fronting 50 feet on the north side of Demonbreun street, and extending northwardly between parallel lines 166 feet to an alley, it being the same conveyed to J. W. Thomas, agent, by Henry Blackburn et al., by deed dated April, 1884, registered in book 83. page 582, register's office of Davidson county. 9. All of lots Nos. 75, 77, and 79, in McNairy's addition to the city of Nashville, each fronting 50 feet on the south side of McGavock street, and extending southwardly between parallel lines 166 feet to an alley; also lot No. 78 in said addition, fronting 50 feet on the north side of McGavock street, extending northwardly between parallel lines to an alley; also lot No. 4 in said addition, fronting 50 feet on the south line of Broad street, and extending southwardly between parallel lines to an alley; said lot No. 75 being the same conveyed to J. VV. Thomas, agent, by Theo. Robertson and wife, by deed dated November 21, 1882, and registered in book 75, page 619, register's office of Davidson county; said lots 4, 77, and 78, being the same conveyed to said J. W. Thomas by Amanda J. Porter by deed dated January 3, 1882, registered in book 71, page 268; lot 79, being the same conveyed to said J. W. Thomas, agent, by Norman Kirkman by deed dated April 14, 1884, registered in book 83, page 585, register's office of Davidson county. 10. All of lots Nos. 66, 68, 70, 72, 74, and 76 of McNairy's addition to the city of Nashville, each fronting 50 feet on the north side of McGavock street, and extending northwardly between parallel lines to an alley; lots 66, 68, and 70 being the same conveyed to J. W. Thomas by David Grewar and wife and Nora Moore, by deed, dated November 7, 1881, registered in book 70, page 511, and by deed to J. W. Thomas from J. N. Bertheol and wife, by deed, dated December 14, 3881, registered in book 71, page 140, and by deed to J. W. Thomas, agent, from Catherine de la NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 573 Hay, by deed, dated April, 1882, and registered in book 72, page 299, and to J. W. Thomas by Robert Ewing, clerk and master, by deed, dated June 15. 1882, registered in book 74, page 302, register's office of David- son county; lots 72 and 74 being the same conveyed to J. W. Thomas, agent, by T. W. Wrenne, clerk and master, by deed, dated March 10, 1884, registered in book 83, page 284, register's office of Davidson county, and lot No. 76 being the same conveyed to said J. Wt Thomas, agent, by Thomas W. Wrenne, clerk and master, by deed, dated January 13, 1885, registered in book 87, p. 122, register's office of Davidson county. 11. Lots 1, 2, 3, 5, and 6 in McNairy's addition to the city of Nash- ville, each fronting 50 feet on the south side of Broad street, and ex- tending southwardly between parallel lines 175 feet to an alley; lot No. 1 being the same conveyed to J. W. Thomas by H. H. Smith and wife, by deed, dated December 14, 1881, registered in book 71, page 141, regis- ter's office of Davidson county; lots 2 and 3 being the same conveyed to J. \\. Thomas by the Nashville Commercial Insurance Company, by deed, dated October 28, 1881, and recorded in book 70. page 45U. regis- ter's office of Davidson county; lots Nos. 5 and 6 being the same conveyed to J. W. Thomas, agent, by A. B. Tavel, by deed, dated April 9, 1884, registered in book 83, page 584, register's office of Davidson county. 12. A tract or parcel of land situated in Hines' addition to the city of Nashville, bounded and described as follows: Beginning at a point no the east line of McCreary street 235 feet north of the north line of Church street; thence extending in a northerly direction with the east line of McCreary street 250 feet; thence eastvvardly 145 feet; thence southwardly, parallel with McCrcary street, 250 feet; thence westwardly 145 feet to the point of beginning. The south 50 feet of said tract being the same conveyed to J. W. Thomas, agent, by Lewis P. Holmes, by deed registered in book 149, page 559, register's office of Davidson county; the adjoining 50 feet on the north being the same conveyed to J. W. Thomas, agent, by Thomas S. Weaver, clerk and master, and R. W. Turner, by deed dated February 28, 1896. and registered in book 208, page 200, register's office of Davidson county; the remainder of said tract being the same conveyed to J. W. Thomas, agent, by B. F. Lester, by deed dated September 18, 1891, registered in book 11, page 368, regis- ter's office of Davidson County. 13. A lot or parcel of land, being portions of lots 26 and 27 of John Cockrell's subdivision of Academy out-lot, as subdivided and sold by the Chancery court of Franklin, Tennessee, after his death, bounded and described as follows: Beginning at a point on the north line of Cedar street 40 feet west of the southeast corner of lot 26; thence running north- wardly, parallel with Bellville street, 180 feet; thence east wardly, parallel with Cedar street, 40 feet; thence southwardly, parallel with Bellville street, 180 feet to the north line of Cedar street; thence westwardly with the north line of Cedar street to the point of beginning; said tract being the same conveyed to J. W. Thomas, agent, by Michael Quinn and wife, by deed dated September 21, 1886, registered in book 96, page 438, register's office of Davidson county. Being all the pieces or parcels of 574 LEASE OF TERMINAL FACILITIES AT NASHVILLE. land, with their appurtenances, which were conveyed to the terminal company by John W. Thomas, agent, and John W. Thomas and Evalena DeBow Thomas, his wife, by deed dated the 27th day of March, 1896, registered in book 207, page 487, register's office of Davidson county. IK. 1. Description of real estate leased (continued). Lot No. 206, in Mc- Nairy's addition to the city of Nashville, as shown by plan recorded in book 9, page 323, register's office of Davidson county, said lot fronting 100 feet, more or less, on the south side of Grundy street, and extending southwardly between, parallel lines to Porter street, it being the same conveyed to M. H. Smith, agent, by the Cumberland Electric Light and Power Company, by deed dated December 5, 1894, and registered in book 195, page 269, register's office of Davidson county. 2. A lot or parcel of land, being a portion of the Fairfax estate, and bounded and described as follows: Beginning at a point on the south line of Cedar street, 463 feet eastwardly from the east line of McCreary street, said beginning point being the northwest corner of the property belonging to the Nashville, Chattanooga & St. Louis Railway, thence running westwardly along the south line of Cedar street 321% feet; thence in a southerly direction parallel with McCreary street, 140 feet to an alley; thence in an easterly direction with said alley 83% feet to the east line of Hynes' addition to the city of Nashville; thence southwardly with the east line of said Hynes' addition 524 feet more or less, to the southeast corner of lot 114 in said addition, better known as the "Church lot;" thence eastwardly 165.4 feet to the west line of the property of the Nashville, Chattanooga & St. Louis Railway, thence northwardly with said west line 463% feet to the point of beginning. 3. A lot or parcel of land beginning at a point on the south line of Cedar street, 111% feet eastwardly from the east line of McCreary street; thence extending in a westerly direction with the south line of Cedar street 61% feet; thence in a southerly direction parallel with McCreary street 140 feet to an alley; thence eastwardly with said alley 61% feet; thence northwardly parallel with McCreary street 140 feet to the point of beginning; said tract of land, Nos. 2 and 3, being the same conveyed to the said M. H. Smith by Mattie F. Lusk, by deed, dated March 23, 1893, registered in book 208, page 418, register's office of Da- vidson county. 4. A lot or parcel of land, being a part of lots Nos. 8 and 7 in Hynes' addition to the city of Nashville, plan of which is recorded in book No. 1 of the chancery court of Davidson county, page 21, and in minute book "B," page 85, of said court. Said lot, more particularly described, begins at the northwest corner of lot No. 8, the intersection of the east line of McCreary street with the south line of a 20-foot alley, said north- west corner also being 140 feet northwardly from the north line of Hynes street; thence running in an easterly direction along the south line of said alley 100 feet to a point in the north boundary line of lot No. 7 in said Hynes' addition; thence parallel with McCreary street south- NASHVILLE, CHATTANOOGA A 8T. LOUIS RAILWAY. 575 wardly 40 feet, thence in a westerly direction parallel with said alley 100 feet to the east line of McCreary street, thence in a northerly direc- tion with the east line of McCreary street 40 feet to the place of begin- ning; said lot or parcel of land being the same conveyed to said M. II. Smith by Mary Ryan, by deed, dated May 25, 1893, registered in book 181, page 199, register's office of Davidson county. 5. A lot or parcel of land fronting 80 feet, more or less, on the north line of Pearl street, bounded on the west by the line of Pat Cummins, on the east by the land of the Louisville & Nashville Railroad Company, upon which a trestle is situated, and on the north by a 10-foot alley, it being the same conveyed to said M. H. Smith, agent, by E. J. Plummer and wife, by deed dated May 3, 1893, registered in book No. 179, page 291, register's office of Davidson county. fi. A. lot or parcel of land, being the western 15 feet of lot No. 5, and all of lot No. 7 in the B. M. Barnes plan, fronting 45% feet on the south side of Gay street, and extending southwardly, between parallel lines, 96% feet to an alley, it being the same conveyed to M. H. Smith, agent, by M. Whitfield and wife, by deed dated May 8, 1893, registered in book No. 178, page 409, register's office of Davidson county. 7. The south 37% feet of lot No. 19 in the Lunatic Asylum subdivision of the city of Nashville, fronting 37% feet on the west side of Magazine street, and extending westwardly between parallel ilnes 150 feet to an alley, it being the same conveyed to M. H. Smith, agent, by Robert Rodes and wife, by deed dated 4th day of February, 1894, and registered in book No. 186, page 415, registei 's office of Davidson county. Being all of the pieces or parcels of land, with their appurtenances, which were conveyed to the terminal company by M. H. Smith and Annette Smith, his wife, by deed dated the 25th day of March, 1896, registered in book 207, page 493, register's office of Davidson county. IV. 1. Description of real estate leased (continued). All of lot No. 26 in the Lunatic Asylum plan of lots in Nashville, Tenn., registered in book 21, page 117, register's office of Davidson county, to which reference is hereby made; said lot fronting 50 feet on the west side of Magazine street, and extending westwardly between parallel lines 150% feet to an alley, it being the same conveyed to G. Stritch by Nannie E. Port- wood by deed dated September 23, 1890, registered in book 14, page 478, register's office of Davidson county. 2. All of that part of lot No. 254 in McNairy's addition to the city of Nashville bounded and described as follows: Beginning at a point in the north line of Laurel street and on the division line between lota 253 and 234 in said addition; thence extending in a westerly direction, with the north line of Laurel street, 45 feet; thence northwardly, paral- lel with said division line, 170 feet to an alley: thence eastwardly, with said alley, 45 feet to said division line; thence southwardly, with said division line, 170 feet to the point of beginning; it being the same con- 576 LEASE OF TERMINAL FACILITIES AT NASHVILLE. veyed to said G. Stritch by James Powers and wife by deed dated No- vember 19, 1889, registered in book 157, page 540, register's office of Davidson county. Being all the pieces or parcels of land, with their appurtenances, which were conveyed to the terminal company by G. Stritch and Katie Stritch, his wife, by deed dated the thirtieth day of March, 1896, registered in book 207, page 496, register's office of Davidson county. V. 1. Description of real estate leased (continued). Lot No. 144 of Mc- Nairy's addition to the city of Nashville, as recorded in plan book 9. page 323, register's office of Davidson county, to which reference is hereby made; said lot fronting 50 feet on the south side of Demonbreun street, and running southwardly between parallel lines 175 feet to an alley, it being the same conveyed to said J. W. Simmons by W. M. Baxter and wife by deed dated March 22, 1889, registered in book 208, page 417, register's office of Davidson county; being the piece or parcel of land, with its appurtenances, conveyed to the terminal company by J. W. Simmons and Martha Simmons, his wife, by deed dated the thirty-first day of March, 1896, registered in book 207, page 497, register's office of Davidson county. VI. Description of real estate leased (continued). Lot No. 85 in Mc- Nairy's addition to the city of Nashville, plan of which is recorded in book 9 page 323. register's office of Davidson county, said lot fronting 50 feet on the &outh side of McGavock street, and extending southwardly, between parallel lines, 166 feet to an alley. Being the piece or parcel of land, with its appurtenances, conveyed to the Terminal Company by Norman Kirkman and Nellie M. Kirkman, his wife, by deed dated the sixth day of April, 1896, registered in book 207, page 498. register's office of Davidson county. VII. 1. Description of real estate leased (continued). Lot No. 16. in Mc- Nairy's addition to the city of Nashville, plan of which is recorded in book 9, page 323, register's office of Davidson county; said lot fronting 50 feet on the south side of Broad street, and extending southwardly between parallel lines 169 feet to an alley. 2. Lot No. 86 in said McNairy's addition to the city of Nashville, said lot fronting 50 feet on the north side of McGavock street, and extending northwardly between parallel lines 166 feet to an alley; the above de- scribed pieces or parcels of land being the same conveyed to E. L. More by Peter Murray by deed dated June 21, 1890, and registered in book 158, page 580, register's office of Davidson county, Being all the pieces or parcels of land, with their appurtenances, which were conveyed to the Terminal Company by E. L. More, by deed dated the twenty -eighth day of March, 1896, registered in book 207, page 499, register's office of Davidson county. NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 577 VIII. Same. All of lot No. 17 in McNairy's addition to the city of Nash- ville, as per plan in chancery court plan, book , page IS, said lot fronting- 50 feet on the north side of Broad street and extending north- wardly between parallel lines 175 feet to an alley, it being 1 the same conveyed to Pauline D. Lewis by Albert B. Tavel, by deed, dated Sep- tember 24, 1890, registered in book 147, page 595, register's office of Da- vidson county; being the piece or parcel of land, with its appurtenances, which was conveyed to the terminal company by Pauline D. Lewis and E. C. Lewis, her husband, by deed, dated the thirty-first day of March, 1896, registered in book 207, page 50O, register's office of Davidson county. IX. 1. Same. Lot No. 80 of the McNairy plan of West Nashville, as of record in plan book No. 9, page 333, register's office of Davidson county; said lot fronts 50 feet on the north side of McCJavock street and runs back between parallel lines 1(59 feet to an alley. 2. Lot No. 14 of the above-mentioned plan, fronting 50 feet on the south side of Broad street and running back between parallel lines 169 feet to a 12-foot alley, being the same lot among other lots conveyed by John Kirkman to James P. Kirkman, trustee, by deed, recorded in regis- ter's offiee of Davidson county, book 37, page 690, and allotted to Mrs. A. K. Berry by decree of chancery court in the case of H. C. Prichitt et "'. v. Mary N. Klrkiium et a/., recorded in minute book 2, page 468. 3. Lot No. 252 in the above-mentioned plan, fronting 50 feet on the north side of Laurel street and running back 175 feet, with equal width, to a 12-foot alley; being all of the pieces or parcels of land, with their appurtenances, which were conveyed to the terminal company by Edgar Jones, trustee, by deed, dated the fifth day of August 1890, registered in book 208, page 416, register's office of Davidson county. X. Same. Lot No. 13 in the Lunatic Asylum subdivision in the city of Nashville, Tennessee, fronting 50 feet on Kayne avenue, and running back, at right angles to the point between parallel lines, 150 feet to a 10-foot alley, this being the same lot bought by C. C. Christopher, agent of George Spencer and F. A. Spencer, as shown in book 207, page 187, register's office of Davidson county. Being the piece or parcel of land, with its appurtenances, which was conveyed to the terminal company by C. C. Christopher, agent, by deed dated the third day of March, 1896, registered in book 208, page 426, register's office of Davidson county. XI. Same. A part of lot No. 120 of Hynes' addition to the city of Nash- ville. county of Davidson, and State of Tennessee, bounded and described as follows: Beginning at a point in the south line of Church street, on the dividing line between lots numbers 120 and 121 of said Hynes* addi- 37 578 LEASE OF TERMINAL FACILITIES AT NASHVILLE. tion; thence running in an easterly direction, with the south line of Church street, 45 feet to a point; thence in a southerly direction, parallel to the east line of McCreary street, 140 feet to a point on the north line of lot No. 122 of said addition; Thence in a westerly direction with said north line of lot No. 122 45 feet to a point on the dividing line between lots numbers 120 and 121 of said addition; thence in a northerly direction, with the said dividing line between lots numbers 120 and 121, 140 feet to the point of beginning; it being the said conveyed to J. W. Thomas, agent, by J. R. Sneed, Mary Sneed. Jos. T. Watts, and John Tansey. by deed dated March 31, 1896, and registerd in deed book 207, page 508, register's office of Davidson county; and to the terminal com- pany by J. W. Thomas, agent, by deed dated April 24, 1896, and regis- tered in deed book 206, page 506, register's office of Davidson county. XII. Same; future acquired property; right of way, tracks, depots, etc. All of lots numbers 15 and 207 of McNairy's addition to the city of Nashville, lot No. 15 fronting 50 feet on the north side of Broad street, and extending northwardly, between parallel lines, 175 feet to an alley; lot No. 207 fronting 50 feet on the south side of Porter street, and ex- tending in a southerly direction, between parallel lines, 175 feet to an alley; they being the same conveyed to the terminal company by Thos. S. Weaver, clerk and master, and E. C. Lewis, by deed dated April 29, 1896, and registered in deed book 208, page 461, register's office of David- son county. Also, all other pieces arid parcels of land which may be here- after acquired by the first party within the corporate limits of the city of Nashville, whether the same be acquired by pur- chase, condemnation, lease, or otherwise. To have and to hold the said premises, with the appurte- nances thereunto belonging, including all rights of way, ways, Depot build- and other easements; all passenger and freight de- etc. ' pot buildings, office buildings, sheds, warehouses, roundhouses, shops, and other buildings, erections, and struc- tures; all main and side railroad tracks, switches, crossovers, turnouts, and all other terminal facilities now located or here- after to be erected or constructed upon said premises or any part or portion thereof, unto said second parties and their respective successors and assigns for the term of nine hundred and ninety-nine years from the first day of July, 1896. ART. 2. Lease embraces property conveyed by Nashville, Chattanooga & St. Louis Railway to terminal company. Heretofore, to wit, on the twenty-seventh day of April, 1896, NASHVILLE, CHATTANOOGA by, for itself, its successors and assigns, covenant with said second parties, and their respective successors and assigns, that said first party, its successors and assigns, will, with all reasonable dispatch, and during the term granted in the first article, erect and construct u|>on the premises described in the first, second, and third articles, all such passenger and freight depot buildings, office buildings, sheds, warehouses, round- houses, shops, and other buildings, erections, and structures, and all such main and side railroad tracts, switches, crossovers, and turnouts, and all such other terminal facilities as may be necessary to provide suitable and adequate railroad terminal facilities for such of the railroads centering at Nashville, Ten- nessee, as may contract therefor, with said first party, its suc- cessors or assigns. ART. 10. Terminal company to keep insured depot, build- ings, etc. Said first party doth hereby, for itself, its sue cessors and assigns, covenant with said second parties and their respective successors and assigns, that as soon as the same shall be erected or constructed, said first party, its successors and assigns, shall, and will, forthwith insure against loss by fire the improvements described in the ninth article as passen- ger and freight depot buildings; office buildings, sheds, ware- houses, roundhouses, shops and other buildings, erections, and structures, main and side railroad tracks, switches, crossovers, and turnouts, and other terminal facilities which may be here- after erected or constructed upon the premises or property described in the first, second, and third articles, and all addi- tions thereto and extensions thereof; that the same shall be so insured, to the full value thereof, in some respectable in- surance company or companies; that the same shall be kept so insured during the term granted in the first article, and during the term that may be granted in any new lease which may be executed, as provided in the sixth article, and during the terms that may be assigned in any assignments of the leases men- tioned in the second, third, and seventh articles; and as often 590 LEASE OF TERMINAL FACILITIES AT NASHVILLE. as the property so insured shall be burned down or damaged by fire, all and every the sura or sums of money which shall be recovered or received by said first party, its successors or assigns, for, or in respect of, such insurance, shall be paid over by said first party, its successors or assigns, to said second parties or their respective successors or assigns, to be laid out and expended by them in rebuilding or repairing the property so insured or such parts thereof as shall be destroyed or injured by tire. ART. 11. Terminal company to pay all taxes, assessments, etc., On leased property. Said first party doth hereby, for itself, its successors and assigns, covenant with said second parties, and their respective successors and assigns, that said first party, its successors and assigns, shall, and will, during the term granted in the first article, and during the term that may be granted in any new lease which may be executed as provided in the sixth article, and during the terms that may be assigned in any assignments of the leases mentioned in the second, third, and seventh articles, pay and discharge all taxes, rates, charges, and assessments that may be levied or imposed, during the term or terms aforesaid, upon said premises or property described in the first, second, and third articles, and the improvements described in the ninth article as passen- gers and freight depot buildings, office buildings, sheds, ware- houses, roundhouses, shops, and other buildings, erections, and structures, main and side railroad tracks, switches, cross- overs, and turnouts, and other terminal facilities which may be hereafter erected or constructed upon the premises or prop- erty described in the first, second, and third articles, and all additions thereto and extensions thereof. ART. 12. Rent, amount and hOW paid. Said second parties do hereby, for themselves and their respective successors and assigns, covenant with the said first party, its successors and assigns, that, as rent for the premises or property described in the first article, and for rent of the improvements described in the ninth article as passenger and freight depot buildings, office buildings, sheds, warehouses, roundhouses, shops, and NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 591 other buildings, erections, and structures, and main and side railroad tracks, switches, crossovers, and turnouts, and other terminal facilities, and all additions thereto and extensions thereof, said second parties, and their respective successors and assigns, will pay to said first party, its successors and assigns, annually, in each and every year during the term granted in said first article, and during the term that may be granted in any new lease which may be executed, aa provided in the sixth article, and during the term that may be assigned in any as- signments of the leases mentioned in the second, third, and seventh articles, a sum equal to interest at four per cent, per annum upon the actual cost of all expenditures heretofore made, or to be hereafter made, by said first party, its succes- sors and assigns, from time to time, in the purchase or other acquisition of said premises or property, and in the erec- tion and construction of said improvements and of all addi- tions thereto and extensions thereof, and to all taxes, rates, charges, and assessments that may be levied or imposed during the term or terms aforesaid upon said premises or property and said improvements, and all additions thereto and extensions thereof, and to the cost of such insurance as may be neces- sary to keep said premises or property and said improvements, and all additions thereto and extensions thereof, insured to their full value during the term or terms aforesaid. On the first day of October, in each and every year during the term or terms aforesaid, the sum which will be due as rent, aforesaid, for the next succeeding year, upon the basis in this article established, shall be ascertained and fixed by the parties hereto, and the sum so ascertained and fixed shall be paid by said second parties, and their respective successors and assigns, to said first party, and its successors and assigns, in equal quarterly payments, on the first days of October, January, April, and July in the year for which said sum may be so established and fixed. ART. is. Railroad companies agree to pay above rent, keep covenants and hold terminal company harmless. Said second parties do hereby, for themselves, and their respective sue- 592 LEASE OF TERMINAL FACILITIES AT NASHVILLE. cessors and assigns, covenant with said first part, its successors and assigns, that said second parties, and their respective suc- cessors and assigns, shall, and will, from time to time, and at all times during the respective residues of the said terms specified in the said leases, mentioned in the second and third articles, well and truly pay or cause to be paid, unto the lessors mentioned in said leases respectively, or unto such person, or persons, as for the tirne being shall be entitled to receive the same, the yearly rents by said leases respectively reserved and made payable, which from thenceforth shall grow due; and also well and truly perform, fulfill, and keep all and singular the covenants, provisos, and conditions contained in said leases respectively; and which by, and on the part of said first party, or said second parties, is, or are, to be paid, observed, and performed; and also shall, and will, from time to time, and at all times, well and sufficiently save, defend, keep harmless, and indemnified, said first party, its successors and assigns, from and against all costs, charges, damages, and expenses what- soever, which it, or they, or either of them, shall or may sus- tain, or become liable to, by reason or means of said second parties, or their respective successors or assigns, not paying all or any part of the said rents from time to time, to become due for, or in respect of said premises, or any part or portion of them, and their appurtenances, assigned in the second and third articles, from and after the execution of these presents, or by reason or means of their not observing and fulfilling any of the covenants, provisos, or conditions in the said leases respectively reserved and contained, which by and on the part of said second parties, and their respective successors and assigns, are to be observed, performed, fulfilled, and kept. ART. 14. Railroad companies to keep premises in repair, When and hOW. Said second parties do hereby, for them- selves and their respective successors and assigns, covenant with said first party, its successors and asssigns, that said second parties, and their respective successors and assigns, shall, and will, during the term granted in the first article, and during the term that may be granted in any new lease which NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 593 may be executed, as provided in the sixth article, and during the terms that may be assigned in any new assignments of the leases mentioned in the second, third, and seventh articles, at their proper costs, and charges, well and sufficiently maintain and keep in repair when, and as often as the same shall require, the premises described in the first, second, and third articles, together with their appurtenances, including all rights of way, ways, and other easements, all such passenger and freight depot buildings, office buildings, sheds, warehouses, round- houses, shops, and other buildings, erections, and structures, and all such main and side railroad tracks, switches, crossovers, and turnouts, and all such other terminal facilities, as may be hereafter erected or constructed by the first party, its succes- sors or assigns, upon the premises described in the first, second, and third articles. And also, that in case the same, or any part thereof, shall, at any time during said terms, or during either of them, be destroyed or injured by fire, wind, or light- ning, said second parties and their respective successors and assigns, shall, and will, at their proper costs and charges, forthwith proceed to rebuild or repair the same, in as good condition as the same were before such destruction or injury. Provided, however, that all and every the sums or sum of money which shall be recovered or received by said first party, its successors or assigns, for or in respect of any insurance upon any of such properties, shall be paid over by said first party, its successors and assigns, to said second parties, their respective successors or assigns, to be laid out and expended by them in rebuilding or repairing the property so insured, or such parts thereof as shall be destroyed or injured by fire, as provided in the tenth article. ART. 15. Terminal company has right to enter on premises and notify railways of want of repair; when to be re- paired. Said second parties do hereby, for themselves and their respective successors and assigns, covenant with said first party, its successors and assigns, that it shall be lawful for said first party, its successors or assigns, by its or their agent or agents, at all seasonable times, during the term granted in 38 594 LEASE OF TERMINAL FACILITIES AT NASHVILLE. the first article, and during the term that may be granted in any new lease which may be executed, as provided in the sixth article, and during the terms that may be assigned in any new assignment of the leases mentioned in the second, third, and seventh articles, to enter upon the premises described in the first, second, and third articles, and to examine the condition of the said premises; and, further, that all wants of repara- tion which, upon such views, shall be found, and for the amendment of which notice in writing shall be left at the premises, said second parties, and their respective successors and assigns, shall and will, within three calendar months next after every such notice, well and sufficiently repair and make good accordingly. ART. 16. Covenant to peaceably surrender at expiration of lease. Said second parties do hereby, for themselves and their respective successors and assigns, covenant with said first party, its successors and assigns, that at the expiration of the term granted in the first article, and at the expiration of the term that may be granted in any new lease which may be executed, as provided in the sixth article, or at any sooner termination of this present lease, or of any such new lease, said second par- ties, and their respective successors and assigns, shall, and will, peaceably surrender and yield up unto said first party, its suc- cessors and assigns, the premises described in the first article, with their appurtenances. ART. 17. Terminal company to re-enter and take posses- sion On default Of railways. Said second parties do hereby, for themselves and their respective successors and assigns, cov- enant with said first party, its successors and assigns, that if the rents reserved in the twelfth article, or any part thereof, shall be unpaid for fifteen days after any of the days on which the same ought to have been paid (although no formal demand shall have been made thereof), or, in case of the breach or non- performance of any of the covenants, provisos, or conditions herein contained, on the part of the said second parties, and their respective successors and assigns, then it shall be lawful for said first party, its successors or assigns, at any time there- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 595 after, into and u\>on the premises described in the first article, or any part thereof, in the name of the whole, to re-enter and the same again to repossess and enjoy, as of its or their former estate, anything hereinbefore contained to the contrary not- withstanding. In witness whereof, The said parties hereto have caused these presents to be signed by their respective presidents or vice- presidents, attested by their respective secretaries or assistant secretaries, and their respective corporate seals to be hereunto affixed, the date above written. LOUISVILLE & NASHVILLE TERMINAL COMPANY, By M. H. SMITH, President. [L. A N. T. CO. SEAL.] Attest: J. H. ELLIS, Secretary. LOUISVILLE & NASHVILLE RAILROAD COMPANY, By S. R. KNOTT, First Vice- President. [L. & N. R. R. CO. SEAL.] Attest: J. H. ELLIS, Secretary. NASHVILLE, CHATTANOOGA & ST. Louis RAILWAY, By J. AV. THOMAS, President. [N. , C. & ST. L. RY. SEAL. ] Attest: J. H. AMBROSE, Secretary. Lease, where registered. The above lease was properly acknowl- edged, and registered in the register's office of Davidson county, Tenn., in book 222, p. 175. 596 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. CHAPTER XLIX. CONSOLIDATED MORTGAGE TO SECURE AN ISSUE OF $20,000,000 FIVE PER CENT. GOLD COUPON BONDS OF THE DENOMINA- TION OF $1,000 EACH. OTHER MORTGAGES. CONSOLIDATED MORTGAGE. Parties. This indenture, made and entered into this second day of April, in the year of our Lord one thousand eight hundred and eighty-eight, by and between the Nashville, Chattanooga and St. Louis Railway, a corporation duly in- corporated under the laws of the State of Tennessee, and with corporate rights in the states of Kentucky, Georgia and Ala- bama, party of the first part, hereinafter called the railway: and the United States Trust Company of New York, a corpora- tion duly incorporated under the laws of the State of New York, as trustee, party of the second part, hereinafter called the trustee, WITNESSETH : Preamble. WHEREAS, The said railway has heretofore con- structed or acquired, and now owns, maintains and operates, certain lines of railroad and branches within the States of Ten- nessee, Kentucky, Georgia and Alabama, as follows: Description of property, main branch, including north- western. A line of railroad commencing at Nashville, in the State of Tennessee, and running thence through the counties of Davidson, Rutherford, Bedford, Coffee and Franklin, in the State of Tennessee, the county of Jackson, in the State of Alabama, and the county of Dade, in the State of Georgia, to Chattanooga, in the county of Hamilton, and State of Tennes- see, of the total length of one hundred and fifty -one and fifteen- one-hundredths miles (originally constructed by the Nashville & Chattanooga Railroad Company, which was chartered on the eleventh day of December, 1845), known as the Chattanooga division; and a line of railroad commencing at Nashville, in the State of Tennessee, and running thence to Hickman, in the NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 597 county of Fulton, in the State of Kentucky, of the total length of one hundred and sixty-nine and six one-hundredths miles, (originally constructed by the Nashville & Northwestern Rail- road Company, which was chartered on the twenty-second day of January, 1852,) known as the Northwestern Division; Which two lines, having been in due form of law consol- idated, under the name and style of the Nashville, Chattanooga & St. Louis Railway (the Nashville & Chattanooga Railroad Company having purchased the property of the Nashville & Northwestern Railroad Company), now constitute the main line of the said railway; and are subject to a mortgage to the government of the United States to secure the sum of $1,000,- 000, under which bonds to the amount of $500,000, due June 1, 1891, are outstanding, and, further, subject to a tirst mort- gage made by the railway to Adrian Iselin, Richard T. Wilson, and Vernon K. Stevenson, as trustees, dated July 1, 1873, given to secure an issue of bonds to the amount of $6,800,000, and due July 1, 1913, of which $500,000 are held to take up the bonds secured by said mortgage to the United States, and the remainder are outstanding; and subject, also, to a second mortgage made by the railway to the Central Trust Company, of New York, as trustee, dated January 1, 1881, to secure the sum of $1,000,000, due January 1, 1901, under which bonds to the amount of said sum of $1,000,000 are now outstanding. 1. The mortgage, above referred to, given to the government of the United States for $1,000,000, has been paid in full, and bonds cancelled. The money to pay it was raised by the sale of bonds issued under this mortgage, to the amount of $500,000. The other bonds and mortgages above referred to are still outstanding. 2. For Chattanooga (main) line, see pp. 1-76 herein; for Northwestern (part of main) line, see p. 76 herein. Same. Sparta, Fayetteville, and Huntsville Branches. Also, a line commencing at Tullahoma, in the county of Coffee and State of Tennessee, a point on the said main line, and running thence, through the counties of Coffee, Warren, and White, to Sparta, in the said state, of the total length of sixty and fifty-eight one-hundredths miles, and known as the Mc- Minnville Branch; also, a line commencing at Decherd, in the 598 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. county of Franklin and State of Tennessee, a point on the said main line, and running thence, through the county of Franklin, to Fayetteville, in the county of Lincoln, in said State of Ten- nessee, of the total length of thirty-eight and seventy -eight one-hundredths miles, and known as the Fayetteville Branch; also, a line commencing at Elora, a point on the said Fayette- ville Branch, and running thence to Huntsville, in the State of Alabama, of the total length of twenty-six and eighty one- hundredths miles, and known as the Huntsville Branch. Which three last described lines of railroad or oranches are together subject to a certain mortgage made by the railway to Adrian Iselin and Richard T. Wilson, as trustees, dated Janu- ary 1, 1877, to secure an issue of bonds, due January 1, 1917, under which bonds to the amount of $750,000 are now out- standing. 1. The mortgage and bonds above referred to are still outstanding. 2. For Sparta Branch, see pp. 166 and 193 herein; for Fayetteville Branch, see p. 152 herein; for Huntsville Branch, see pp. 152, 214, herein; for Bon Air extension, see p. 199 herein. Same. Tracy City Branch. Also a line commencing at Cowan, in the county of Franklin and state of Tennessee, a point on the said main line, and running thence through the counties of Franklin and Marion, in said state, to Tracy City, in the county of Grundy, in said state, of the total length of twenty miles, and known as the Tracy City branch, which said line of railroad or branch is subject to a certain mortgage made by the railway to the Central Trust Company of New York, as trustee, dated January 1, 1887, given to secure an issue of bonds, due in installments at several dates, under which bonds to the amount of $600,000 are now outstanding. 1. Of the bonds above referred to $160,000 have been paid, leaving a balance outstanding, which are not due, of $440,000. The bonds that have been paid have not as yet been canceled, but held by the trustee. 2. For Tracy City Branch, see p. 277 herein. Same. Jasper, Inman Branches. Also a line commencing at Bridgeport, in the county of Jackson and state of Alabama, a point on the said main line, and running thence to Dunlap, NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. ."'.'. in the county of Sequatchio in the state of Tennessee, known as the Jasper Branch, together with a branch from said Jasper Branch, extending from Victoria to Inman, )>oth in the county of Marion and state of Tennessee, which said branches, in all, are of the total length of forty-three and thirty one hundredths mill's; the first twelve miles of the branch first above described, extending from Bridgeport in the state of Alabama, to Jasper, in the state of Tennessee, has been treated as a portion of the main line, and is included in and covered by the mortgage hereinabove particularly described, dated July 1, 1873, given to secure 6,800,000, due July 1, 1913; that portion thereof, from Jasper to Victoria seven and one-half miles is subject to a mortgage made by the company to E. L. Jordan and J. A. Satterwhite, as trustees, dated February 1, 1877, given to secure an issue of bonds, due January 1, 1906, under which bonds to the amount of 90,000 are outstanding; and the re- mainder from Victoria to Dunlap, eighteen and thirty one- hundredths miles, and from Victoria to Inman, five and tifty one-hundredths miles, is subject to a mortgage made by the company to the Central Trust Company of New York, as trustee, dated January 1, 1883, and given to secure an issue of bonds due January 1, 1923, under which bonds to the amount of $371,000 are now outstanding. 1. The bonds and mortgages above referred to are still outstanding. 2. For Jasper, Inman & Sequatchie Branches, see pp. 2(54, 266, 269 herein. Same. Lebanon Branch. Also, a line commencing at Nash- ville, in the State of Tennessee, and running thence to Lebanon, in the county of Wilson, in said state, of the total length of twenty-nine and twenty-one one-hundredths miles, and known as the Lebanon Branch, which is subject to a mortgage made by the railway to Vernon K. Stevenson and Walston H. Brown, as trustees, dated October 1, 1877, given to secure an issue of bonds due October 1, 1917, under which bonds to the amount of 300,000 are outstanding. 1. The bonds and mortgages above referred to are still outstanding. 2. For Lebanon Branch, see p. 129 herein. 600 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. Same. Centreville Branch. Also, a line commencing at Dickson, in the county of Dickson and State of Tennessee, a point on the said main line, and running thence, through the counties of Dickson and Hickman, to the line of Lewis county, in said State of Tennessee, of the original total length, as con- structed, of forty-seven miles, but which line, by straighten- ing, has been reduced to forty-five and seventy one-hundredths miles, and known as the Centreville Branch, which is subject to a mortgage made by the railway to the Central Trust Com- pany of New York, as trustee, dated January 1, 1883, given to secure an issue of bonds due January 1, 1923, under which bonds to the amount of $376,000 are outstanding. 1. The bonds and mortgage above referred to are still outstanding. 2. For Centreville Branch, see p. 227 herein. BOH Air Brancb. Also, a line (being an extension of the said hereinbefore described McMinnville Branch) running from Sparta, in the county of White, and State of Tennessee, to Bon Air, in said county and state, of the total length of six and fifty one-hundredths miles, known as the Bon Air Branch, which is subject to a mortgage made by the railway to the Central Trust Company of New York, as trustee, dated July 1, 1887, to secure an issue of bonds, due July 1, 1917, under which bonds to the amount of $130,000 are outstanding. 1. Of the bonds above referred to, $16,000 have been exchanged for sixteen bonds under this mortgage, leaving $114,000 still outstanding. 2. For Bon Air Branch, see p. 199 herein. Same. Duck River Valley, or Columbia Branch. Also, a line commencing at Columbia, in the county of Maury, and State of Tennessee, and running thence, through the county of Marshall, to Fayetteville, in the county of Lincoln, in said State of Tennessee, a point on the Fayetteville Branch, of the total length of forty-seven and ninety-two one-hundredths miles, and known as the Duck River Valley Branch, which was originally owned by the Duck River Valley Narrow Gauge Railroad Company, and was thereafter duly purchased by and conveyed to the company, which is subject to a first mortgage made by the said Duck River Valley Narrow Gauge Railroad NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 601 Company to Edgar Jones and Lucius Frierson, as trustees, dated January 1, 1876, given to secure an issue of bonds due Janu- ary 1, 181)6, under which bonds to the amount of $250,000 are outstanding; and subject also to a second mortgage, made by the said Duck River Valley Narrow Gauge Railroad Company to G. M. Fogg and Thomas D. Fite, as trustees, dated Novem- ber 1, 1879, given to secure a further issue of bonds, due November 1, 1909, under which bonds to the amount of $140,000 are outstanding. 1. The $250,000 of bonds, above referred to, have been taken up and are now held by the trustee. The money to pay them was raised by a sale of two hundred and fifty bonds under this mortgage. Of the 8140,000 of bonds above referred to, all have been taken up save 822,000, which amount is now outstanding. The money to pay these was raised by sale of one hundred and eighteen bonds under this mortgage. 2. For Duck River Valley Branch, see p. 250 herein. Same. Shelby ville branch. Also, a branch commencing at Wartrace, in the county of Bedford, and State of Tennessee, a point on the said main line, and running thence to Shelbyville, in the said county of Bedford, of the total length of eight and one one-hundredth miles, known as the Shelbyville Branch, but which has been treated as a part of the main line and which is embraced in the said hereinbefore described mortgage given to secure the sum of $6,800,000. 1. The bonds above referred to are still outstanding. 2. For Shelbyville Branch, see p. 286 herein. Same. West Nashville Branch. Also a branch, commencing at a point on the said hereinbefore described Northwestern Division, in the vicinity of Nashville aforesaid, in the State of Tennessee, and running thence to West Nashville, of the length in all of three and twenty one-hundredths miles, known as the West Nashville Branch, und which is not covered by any mort- gage; and, For West Nashville Branch see p. 318 herein. Amount of underlying mortgages. WHEREAS, The said hereinbefore described main line and the said above described several lines and branches, taken as a whole, are subject to the several mortgages hereinbefore mentioned, aggregating the 602 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. sum of ten million eight hundred and seven thousand dollars (110,807,000), in all; and, Since this mortgage was written $1,044,000 of the bonds above re- ferred to have been taken up, leaving $9,763,000 still outstanding at this writing. These added to the amount of bonds now issued under this five per cent, mortgage, which is $6,233,000, makes a total bonded in- debtedness of $15,996,000 now existing. Railway company liable for all. WHEREAS, All the bonds representing which amount, although secured on said main line or branches separately, are the bonds of the railway, except as to the Duck River Valley Branch, above set forth, the said two issues of bonds upon which were made by the said Duck River Valley Narrow Gauge Railroad Company prior to the conveyance of the said road to the railway, and for which bonds the railway is responsible, having assumed the payment thereof; and Said underlying bonds to be taken up. WHEREAS, The rail- way proposes to take up, by redemption, purchase, exchange, or payment, and to retire and cancel all of said several issues of bonds so existing and outstanding, secured by said several existing mortgages, both upon the main line and upon the said several connecting lines and branches, and each of them, as is hereinafter particularly provided; and After-acquired property subject to this mortgage. WHEREAS, The railway may, from time to time hereafter, build or acquire other lines of road, and may extend the same, or the main line and branches hereinbefore described, or some of them, or may construct other branches, and proposes to make the same subject to the lien hereof, and to issue bonds hereunder therefor, as is hereinafter particularly provided; and Since the execution of this mortgage the railroad company has pur- chased and leased the following property: (1) Tennessee & Coosa Rail- road (see p. 287 herein); (2) the Western & Atlantic Railroad (see p. 335 herein); (3) the Rome Railroad (see p. 379 herein); (4) the Middle Ten- nessee & Alabama Railroad (see p. 406 herein); (5) the Chattanooga Terminal Railway (see p. 448 herein); the Tennessee Midland Railroad (see p. 455 herein;; (6) the Paducah, Tennessee & Alabama Railroad (see p. 487 herein); (7) the Louisville & Nashville Terminal Company's railroad NA8HVII.KK, < II ATTA.\oerated by it, and on such future line or lines, ex- tensions or branches, as shall hereafter be built or acquired by it; and is also authorized and empowered to mortgage the whole or any part of its road, connecting lines, branches, and all and singular its property of whatever kind, with its fran- chises, to secure any amount due or to become due; and, For verification of powers above set out, refer to index. Stockholders' meeting; issue authorized of $20,000,000.- WHEREAS, The railway, in the due exercise of its said powers, did, by resolution, on the eighteenth day of February, 1888, call, and did in due form of law, cause a meeting of the stockholders of the said railway to be duly held in the city of Nashville, in the state of Tennessee, on the twenty-tirst day of March, 1888, which said meeting was duly adjourned to Wednesday, the twenty-eighth day of March, 1888, at which adjourned meeting, so held on said day, more than a majority of the stockholders of the said railway being present and voting in person or by proxy, the following resolutions were unani- mously adopted, viz. : Resolution authorizing iSSUe. Resolved, By the stock- holders of the Nashville, Chattanooga and St. Louis Railway that, for the purpose of redeeming, purchasing, exchanging, paying and retiring the lx>nds of the Nashville, Chattanooga & St. Louis Railway, now outstanding and issued by this com- 604 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. pany, and those issued by the Duck River Valley Narrow Gauge Railroad Company, and for constructing or acquiring new railroad and for changing the gauge of the Duck River Valley Railroad and the Centreville Branch to standard gauge, and for the betterment, improvement and equipment of its line of railroad and branches, the president and secretary of the company are hereby authorized and directed to execute, in its corporate name, and to issue from time to time, as hereinafter provided, its corporate bonds, to consist of a series of coupon bonds, each for the sum of one thousand dollars ($ 1,000), and bearing five per cent, per annum interest, to be designated first consolidated mortgage five per cent, gold coupon bonds, to the amount in the aggregate of twenty millions of dollars ($20,000,000), payable April 1, 1928, in gold coin of the United States, not inferior to the present standard, with in- terest at five per cent, per annum, payable half yearly, on the first days of April and October, in like gold coin; of which issue the sum of ten million eight hundred and seven thousand dollars ($10,807,000) shall be held to take up the present out- standing debt upon the several lines and branches of the com- pany by redemption, purchase, exchange, or payment, on the terras to be provided in the mortgage; and of which issue the difference between the present average mortgage debt (being sixteen thousand six hundred and twenty and seventy -eight one hundredths dollars ($16,620.78) per mile or thereabouts) and twenty thousand dollars ($20,000) per mile upon the main line, and the several branches, being six hundred and fifty and twenty-one one hundredths miles, issued for and devoted to the change of gauge of the Duck River Valley Railroad and the Centreville Branch, and the betterment and improvement of the main line, and the several other lines and branches of the company, and for other legitimate purposes in the im- provement and development of the company's property, of which the sum of one million five hundred thousand dollars ($1,500,000) shall be certified, issued and delivered at once to the company, and no more, and the remainder of which may be issued from time to time, when duly authorized at a meet- NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 605 ing of the stockholders, and from which general issue further bonds may hereafter be certified and duly issued for new rail- road, or newly acquired railroad, as provided in the mortgage hereinafter referred to, at the rate of twenty thousand dollars ($20,000; per mile of constructed road, provided that of the bonds hereby authorized over and above those which shall be held for exchange or satisfaction of the ten million eight hun- dred and seven thousand dollars ($10,807,000) of bonds now outstanding as a lien upon the company's property, the sum of one million five hundred thousand dollars ($1,500, 000) so above authorized shall be at once issued, certified and delivered to the company, without further vote of the stockholders; but no bonds beyond said sum of ten million eight hundred and seven thousand ($10,807,000) dollars, and one million five hundred thousand dollars ($1,500,000) shall hereafter be issued under said mortgage for newly acquired property or new construc- tion or otherwise, without a vote of the stockholders of the company at a meeting first obtained. For the purjM)se of securing the payment of said bonds the president and secretary are authorized and directed to execute in its corporate name and on its behalf and under its corporate seal and to deliver to the United States Trust Company of New York a mortgage or deed of trust, bearing date the second day of April, A. D. 1888, conveying by way of mortgage the main line of railroad of the company and all its connecting lines and branches, as now constructed and in operation as aforesaid, and all railroads owned, or which may l>e acquired or created by con- struction, purchase, consolidation, lease, or otherwise, by the company within and without the said State of Tennessee, subject to the exemptions in the mortgage hereinafter referred to con- tained, and all equipment now or at any time hereafter owned by the company for use upon said railroads so covered hereby within and without the said State of Tennessee, and all and singular the property of every name and nature, real, personal, mixed, acquired and to be acquired, in possession or expectancy, including the corporate and other franchises of the company, subject to the existing liens thereon, amounting to the sum of 606 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. ten million, eight hundred and seven thousand dollars ($10- 807,000). Resolved further, That the form of bond and mortgage now presented be and the same is hereby approved with such changes or modifications, if any, as the board of directors may approve. Of the $20,000,000 bonds authorized to be issued as above, only 86,233,000 of bonds have actually been issued at this writing. Directors alSO authorize issue. AND WHEREAS, The board of directors of the said railway has duly authorized and directed its president and secretary to execute and issue the said series of first consolidated mortgage gold bonds, for one thousand dollars each, numbered from one (1) upwards payable in forty years with interest at five per cent., payable semi-annu- ally on the first days of October and April and to secure the same by the execution and delivery of this instrument ; which bonds and coupons are substantially in the form following, to wit: UNITED STATES OF AMERICA, STATE OF TENNESSEE, Nashville, Chattanooga & St. Louis Railway First Consolidated Mortgage Five Per Cent. Gold Coupon Bond. No. - $1,000. The Nashville, Chattanooga & St. Louis Railway, for value received, acknowledges itself indebted to the United States Trusts Company of New York, or bearer, in the sum of one thousand dollars, which will be due, and which it will pay to the holder hereof, at its agency in the city of New York, on the first day of April, in the year 1928, in gold coin of the United States, not inferior, to the present standard, with interest at the rate of five per cent. (5) per annum, payable at said agency, in like gold coin, semi-annually, on the first days of October and April, in each year, on presentation of the coupons for interest, hereto attached, when respectively due; which said coupons, when paid, are to be surrendered. This bond is one of a series of not exceeding twenty thousand bonds of like amount, tenor, and date, numbered consecutively from one (1) upwards, securing in the aggregate a sum not to exceed twenty millions of dollars issued and to be issued by said railway, at a rate not to ex- ceed twenty thousand dollars per mile of railroad at the time con- structed, and covered by the mortgage hereinafter mentioned, and to be used in part for taking up by redemption, purchase, exchange, payment or otherwise its existing bonded indebtedness, on the terms NASHVILLE, CHATTANOOGA tate of Alabama, and known as the Huntsville Branch; For Huntsville Branch, see pp. 152, 214 herein. Same. Tracy City Branch. Also its said line commencing at Cowan, in the county of Franklin, State of Tennessee, and running thence through the counties of Franklin and Marion, to Tracy City, in the county of Grundy, in said state, and known as the Tracy City Branch; For Tracy City Branch see p. 277 herein. Same. Jasper Branch. Also its said line commencing at Bridgeport, in the county of Jackson, in the State of Ala- bama, and running thence to Dunlap, in the county of Sequat- chie, in the State of Tennessee, and known as the Jasper Branch; For Jasper Branch see pp. 264, 266,269 herein. Same. Inman Branch. Also its said line commencing at Victoria, a point on the said Jasper Branch, and running thence to Inman, all in the county of Marion and State of Tennessee; For Inman Branch see pp. 264, 266, 269, herein. Same. Lebanon Branch. Also its said line commencing at Nashville, in the State of Tennessee, and running thence to Lebanon, in the county of Wilson, in said state, known as the Lebanon Branch; For Lebanon Branch see p. 129 herein. Same. Centreville Branch. Also its said line commencing at Dickson, in the county of Dickson, state of Tennessee, and 39 610 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. running thence through the county of Hickman, in said state, to the line of Lewis county in said state, and known as the Centreville Branch; For Centreville Branch, see p. 227 herein. Same. Bon Air Brancb. Also its said line (being an exten- sion of the McMinnville Branch, hereinbefore described), com- mencing at Sparta, in the county of White, state of Tennessee, and running thence to Bon Air, in said county and state, known as the Bon Air Branch; For Bon Air Branch, see p. 199 herein. Same. Duck River Valley, or Columbia Branch. Also its said line commencing at Columbia, in the county of Maury and state of Tennessee, and running thence through the county of Marshall, to Fayetteville, in the county of Lincoln, in said state of Tennessee, and known as the Duck River Valley Branch; For Duck River Valley Branch, see p. 250 herein. Same. Shelbyville Branch. Also its said line commencing at Wartrace, in the county of Bedford, in the state of Tennes- * see, and running thence to Shelbyville, in said county, known as the Shelbyville Branch. For Shelbyville Branch, see p. 286 herein. Same. West Nashville Branch. Also its said line com- mencing at a point on the main line in the vicinity of Nash- ville, Tenn., and running thence to West Nashville in said state, known as the West Nashville Branch. For West Nashville Branch, see p. 318 herein. Same. Other properties, exceptions, after-acquired prop- erty. And also all railroads and railroad property which the said railway now owns or may hereafter acquire, build or cre- ate within or without the State of Tennessee, whether by purchase, construction, consolidation, or otherwise, except as hereinafter particularly stated in sections first and fifth, and also including all double or additional tracks which said rail- way shall acquire by purchase, lease, construction, consolida- tion, or otherwise, in whatever state the same may be situated; and all rights of way, depots, depot grounds, and lands used in NASHVILLE, CHATTANOOGA 4 ST. LOUIS RAILWAY. 611 connection with the operation and maintenance of said railroad, railroads, divisions, branches, or extensions, or any thereof now owned by said railway, or hereafter in anywise by it to be acquired, subject as aforesaid, and all side tracks, spur tracks, switches, or turnouts, connected with and appurtenant to said railroad, or railroads, main Hue, divisions, or branches thereof, and all bridges, viaducts, culverts, fences, and other structures and all depots, station houses, engine houses, car houses, freight houses, wood houses, coal houses, and other buildings, and all machine shops and other shops now held or acquired, or hereafter to be acquired or held by the railway, its succes- sors or assigns, or either of them, for use in connection with such railroad or railroads, divisions or branches, or any thereof, as it may hereafter acquire, within or without the said State of Tennessee, except as hereinafter mentioned, and including also all locomotives, tenders, cars, and other rolling stock and equipment of whatever name and nature, and all machinery, tools, implements, fuel, supplies, and material for constructing, maintaining, operating, repairing, and replacing the same, acquired and to be acquired, or any part thereof, including also all revenues, rates, tolls, as well as all money or income arising or to arise from said railroad, or other the premises hereinbe- fore expressed to be conveyed, or any of them, or any part thereof; and also all corporate and other franchises, rights, privileges, and immunities now owned, held, and enjoyed by, or conferred upon the said railway within or without the said State of Tennessee, except as hereinafter mentioned, connected with or related to the said railway or railways, acquired or to be acquired, constructed or to be constructed, and necessary to the full, complete and convenient use, operation, and enjoy- ment of the said above described premises and property or any part thereof, it being the intention hereof to include herein, generally, all the property of the said railway, real, personal, and mixed, in possession and in expectancy, now owned or hereafter to be in anywise acquired within and without the said State of Tennessee, together with all and singular the tenements, hereditaments, rights, members, easements and appurtenances 612 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. of the said railroad and premises hereinbefore expressed to be conveyed, or any of them, or any part thereof, belonging or in anywise appertaining thereto, -or at any time held or enjoyed herewith, and the reversion and reversions, remainder and remainders, tolls, incomes, revenues, rents, issues and profits thereof, and also all of the estate, right, title and interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the railway in and to the same, except as hereinafter provided. For examination of property acquired since the execution of this mortgage, see notes to similar heading in first part of this mortgage. To have and to hold, all and singular, the above mentioned and described railroads, extensions, branches, rolling stock, franchises and other property, and all other the premises and property hereinbefore expressed and hereby conveyed, with the appurtenances, unto and to the use of the said United States Trust Company of New York, and its successor or suc- cessors in said trust upon and for the uses and purposes, and upon and subject to the conditions and stipulations, hereinafter expressed and declared, as follows, viz. : FIRST. Bonds to be issued, how and for what; restrictions. The railway has prepared and made ready for execution the said twenty thousand bonds for one thousand dollars each, and the railwav agrees with the trustee, its successor or successors > O in this trust, that no amount of bonds in excess of twenty million dollars ($20,000,000) shall be issued under this mort- gage in any event whatever, nor shall any bonds be issued hereunder, except to take up said outstanding bonds, now liens as hereinbefore stated upon the mortgaged property, or some part thereof, or for the difference between the present average mortgage indebtedness of the said entire line and branches, per mile, and twenty thousand dollars per mile, or except at the rate of twenty thousand dollars per mile of com- pleted railway hereafter to be constructed, purchased or ac- quired, all of which is hereinafter particularly set forth. 1. It is further agreed that said trustee shall, upon the exe- cution, delivery, and recording of this instrument, hold and NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 613 retain in its hands bonds to the amount of ten million eight hundred and seven thousand dollars ($10,807,000), being the asrrree unnecessary for further use in connection with the said rail- way, or which may have been held for the supply of fuel, gravel, or other material; and also to convey as aforesaid, on like request, any lands not occupied by the track, which may become disused by reason of a change of the location of said track, or of any stationhouse, depot, shop, or other building connected with the said railway lines or branches, and such land occupied by the track or tracks thereof and adjacent to such stationhouse, depot, shop, or other building, as the rail- way may deem it expedient to disuse or abandon by reason of such change, and to consent to any such change, and to such other changes in the location of the track or depots, bridges, or other buildings or structures, as in the judgment of the railway shall have become expedient, and to make and deliver the conveyances necessary to carry the same into effect; and the trustee shall also have full power to allow the railway from time to time to dispose of, according to its discretion, such portions of the equipment, machinery, and implements at any time held" or acquired for the use of the railway as may have become unfit for such use, the railway replacing the same by new; and all the property required for replacing, or acquired in lieu of any of the property conveyed under the provisions of this article, shall immediately be and become, without any other act of conveyance upon the part of the railway, subject to the operation and lien of these presents. FOURTH. Taxes, who to pay; railway to execute addi- tional title papers, When. The railway agrees well and truly to pay and discharge all taxes lawfully levied upon said rail- road and branches, franchises, and proj>erty hereinbefore de- 618 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. scribed and hereby mortgaged, from time to time, when the same shall be due respectively, and to keep the same in good order and repair at its own cost, and to do all things necessary to be done to keep valid the lien hereby created upon the said mortgaged property, and every part of the same, and from time to time to execute such other conveyances and to do such other acts and things as may be necessary or reasonably re- quired to improve or make perfect the lien acquired by this instrument. FIFTH. Lien attaches to after-acquired tracks, when; limitation. The lien of this instrument shall attach to such additional mile or miles of constructed track as shall hereafter be built, acquired, or created by the railway as shall be unen- cumbered, and on which bonds of this series may be duly authorized to be issued, as hereinabove provided, and to such equipment or other property appurtenant thereto as shall be hereafter acquired; but whenever such additional number of miles of railroad shall have been so built, acquired, or created, and covered by this instrument, so as to entitle the railway (including the number of bonds at the time in the hands of the trustee to take up bonds secured by mortgages then outstand- ing) to the entire amount of bonds to be issued hereunder, viz., twenty thousand bonds of one thousand dollars each, then no further railroad extension, branch, branches, or property, nor any equipment properly belonging thereto, shall be covered hereby. 1. Number of bonds issued. At this writing, only $6,233,000 of bonds, of the $20,000,000 authorized to be issued under this mortgage, have been issued. 2. After-acquired property. For enumeration of properties acquired since the execution of this mortgage, see notes to similar heading in first part of this mortgage. SIXTH. On default trustee to take charge and operate, hOW. Whenever the railway or its successors shall make de- fault in payment of the coupons on any of its bonds after due presentation and demand thereof, and such default shall con- tinue for a period of six months; or shall make default or breach in the performance or observance of any such other NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 619 condition, obligation or requirement mentioned herein, and such default shall continue for the period of six months, then, and in either of such cases, it shall be lawful for the trustee, for the time being, and upon the written request of the holders of a majority of the bonds outstanding, such trustee shall enter on and take and possess all and singular the railroads, property and rights hereby conveyed, and work and operate the same by its superintendents, managers, receivers, servants, attorneys or agents, and conduct the business thereof, and make, from time to time, such repairs and replacements and such useful alterations, additions and improvements therein and thereto as may seem to it to be judicious or convenient, and collect or receive all tolls, freights, revenues, incomes, rents, issues and profits thereof; and, after deducting and defraying the ex- penses of working and operating the same, and of all the said repairs, replacements, alterations, additions and improvements, and all payments which may be made for charges or liens of any kind prior to the lien of these presents, and all other ex- penses and outgoings whatsoever incurred in relation thereto, as well as just compensation for its own services and for the services of such attorneys and counsel, and all other agents and persons, as may have been by it employed, the trustee shall apply the moneys arising from such collections, as aforesaid, in or toward the payment of interest on all the said bonds in the order in which the said interest shall have become due, ratably, to the persons entitled to such interest; and, after pay- ing all interest which shall have become due, shall apply the residue of said moneys in or toward the payment of the princi- pal of such of the said bonds as may be at that time outstand- ing and unpaid, ratably, and without discrimination as to persons. And if, after satisfaction thereof, a surplus shall remain, it shall pay over such surplus to the railway, its suc- cessors or assigns, or as any court of competent jurisdiction shall order. SEVENTH. Mortgage to be foreclosed, when; all bonds fall due on default, When. In case the railway shall fail, for the period of six months, to pay the coupons for the semi-annual 620 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. interest on any of the bonds issued under and secured by this mortgage, after due presentation and demand thereof, the prin- cipal of all of said bonds shall, at the option of the holders of a majority in the interest of said bonds then issued and out- standing, forthwith become due and payable, and the trustee shall on such option baing so expressed in writing declare the same to be so due and payable, and in such case of default in the payment of interest for the period of six months, or in case the railway shall fail to pay any of said bonds after maturity, according to the tenor and effect thereof, or after they become due as hereinabove provided, the lien hereby created for the security and payment of said bonds may be at once enforced, and the trustee, its successor or successors may, and upon the written request of the holders of a majority in interest of. said bonds then outstanding, and on the receipt of satisfactory indemnity, shall, forthwith, with or without entry, as aforesaid, sell and dispose of all and singular the premises and property hereby conveyed, or any part thereof, at public auction, in the city of New York and State of New York, or in the city of Nashville and State of Tennessee, in the discretion of the trustee, at such times as it may appoint, first giving notice of said sale and of the time, place, and t3rms thereof, by adver- tisement for the term of four weeks in some daily newspaper published in said city of New York, and also in some daily newspaper published in the said city of Nashville. The trustee shall have power to adjourn said sale from time to time, at its discretion; and if adjourned to another date, it may make said sale at the time appointed without further notice by adver- tisement; and the trustee shall have power to make and deliver to the purchaser, or purchasers, at said sale, good and sufficient deeds of conveyance of the property sold, and the receipt of the trustee shall be a sufficient discharge to the purchaser, or pur- chasers, of the premises which shall be sold as aforesaid, for his or their purchase money, and such purchasers shall not, after the payment of such purchase money, b3 liable to see to its application upon or to the purposes or trusts of these pres- ents, or to be in any manner answerable for any loss, misappli- NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY. 621 cation, or non-application of such purchase money, or any part thereof, or be obliged to inquire into the necessity or expedi- ency of or for any such sale; or the trustee may, at its election, institute and maintain foreclosure proceedings in any court of competent jurisdiction, for the appointment of a receiver or for the sale of said main line, branches, and mortgaged property, appurtenances, rights, privileges, and franchises for the pay- ment of said bonds, or such of them as may remain unpaid, and all unpaid interest due thereon, and for the distribution of the proceeds of any such sale amongst the holders and owners of said bonds and coupons, according to their rights and equities, respectively; P/widtd, That if the railway at any time before such sale, and before said bonds shall have become due by their terms, or by reason of any declaration of the trustee, as hereinabove provided for, shall pay all the interest then matured thereon, or due thereon, and all unpaid taxes, if any, compen- sation of the trustee, costs of the proceedings in court and all legal and proper charges in favor of the trustee, its agents or attorneys, a sale on account of such previous failure shall not be made, and said proceedings for a sale, or said foreclosure proceedings, shall be dismissed. EIGHTH. Bondholders may purchase at sale. it is hereby further understood and agreed that it shall be lawful for the landholders so demanding such sale, or a majority of them, and all holders of bonds secured hereby who may unite with them, to purchase, at any such sale, said roads, branches, and other property, appurtenances, rights, franchises, and privi- leges, but the cost of the foreclosure proceedings, compensation of the trustee, attorney's fees, and all other proper costs and charges are first to be paid out of the proceeds of the sale, and the remainder of said proceeds shall l>e applied in payment of the unpaid interest and principal of the said several bonds, ratably, but without any preference of principal over interest or of interest over principal, and without discrimination as to persons; and if, after paying in full said bonds and interest, there shall be any money remaining in the hands of the trustee, 622 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. it shall pay the same to the railway, its successors or assigns, or as may be ordered by any court having jurisdiction. In the event of such purchase by such bondholders, and after the payment, out of the proceeds of sale, of said costs, compensa- tion of trustee, and fees of attorneys, they shall be allowed credit, as so much cash paid, for so much of said purchase money as shall be a proper pro rata share to which the bonds and coupons held by such purchasers shall be entitled. NINTH. in case of foreclosure, railway waives certain rights. It is agreed that, in case of any default in the pay- ment of said bonds secured hereby, or of any interest thereon, or in the observance of any of the covenants, conditions, pro- visions, or agreements herein contained, on account of which a sale by foreclosure, or otherwise, could be made, the railway will waive, and hereby waives, the benefit of any stay, ap- praisement, and redemption laws, or of any laws regulating sales under mortgage foreclosures in the States of Tennessee, Kentucky, Alabama, or Georgia, now existing or which may hereafter exist. TENTH. -Mortgage becomes void and lien released, when. It is further agreed, that upon the payment by the railway, at any time when due, of the said bonds issued under and secured by this mortgage or deed of trust, and of all interest matured or due thereon, before a foreclosure sale, as hereinbefore pro- vided, and the compensation and expenses of the trustee, and other proper charges, this deed shall become void, and the estate and title hereby granted shall revert to and vest in the company, its successors and assigns, without other conveyance thereof. ELEVENTH. Majority bondholders, rights of, trustee. The action of the trustee herein in regard to enforcing to any extent the lien created by this mortgage or deed of trust, either by taking possession, or by sale at auction, or by resort to judicial proceedings, or otherwise, or in declaring the principal of the bonds to be due, or in reversing such declaration, or otherwise, shall be at all times subject to the control of a NASHVILLE, CHATTANOOGA A ST. LOUIS RAILWAY. 623 majority in amount of the holders of said bonds, then issued and outstanding, their wishes being expressed in writing to the trustee, whose action shall l>e at all times subject to the control of a majority in amount of the holders of said bonds, as herein provided. The trustee shall be under no obligation to recognize any person, firm or corporation, as a holder of bonds secured hereby, or entitled to the benefits hereof, who shall not produce the said bonds, or otherwise satisfy the trustee that he is the holder thereof, and indemnify and save harmless the trustee for all liability and loss for which it may become liable or responsible on proceeding to carry out such request or demand. TWELFTH. Trustee may resign or be removed, how; suc- cessor, hOW Chosen. It is further agreed that the trustee hereby accepts the aforesaid trusts and agrees to execute the same, upon the following terms and conditions, which are mutually agreed to by the parties, viz. : The trustee, its successor and successors, may resign or discharge itself, or themselves, of the trusts created by these presents, by notice to the railway in writing, three months before such resignation shall take effect, but such resignation may take effect after shorter notice, if the holders of a majority of the bonds then outstanding, so consent; that the trustee shall be answerable for gross negligence and willful defaults only; that the trustee may employ or advise with legal counsel, and that the proper expenses thereof and all personal expenses of the trustee, including its compensation, shall be paid by the company as they are incurred, or otherwise, out of the trust estate on which they are hereby charged; and it may employ agents or attorneys in fact, to act for it, when- ever required to act. The trustee may be removed by a vote of a majority in interest of the holders of the bonds secured hereby, issued and outstanding at the time of said vote, the said vote to be taken at a meeting: of the bondholders, and attested bv an instrument v duly executed by all of the persons so voting at such meeting, 624 CONSOLIDATED FIVE PER CENT. GOLD MORTGAGE. for such removal, and the rights of such persons so to vote at such meeting being proven by the affidavit of the chairman and secretary of said meeting; or the trustee may be removed by an instrument or instruments in writing, signed by the holders of a majority in interest of said bonds, such instrument being duly acknowledged and accompanied by the affidavit of the respective signers thereof, and naming the number of bonds of which they are respectively the holders. And it is further agreed that, in the event of a vacancy in the trust, or of the disability or failure of the trustee, its suc- cessor or successors, for any cause, to act as such trustee, the owners and holders of a majority of the bonds secured hereby, then issued and outstanding, may, by an instrument in writ- ing, duly executed by them respectively (which instrument shall be recorded in the offices in which this mortgage is re- quired by law to be recorded), appoint some competent succes- sor or successors to said trustee; and, in the event of their failure or refusal to do so, it shall be lawful for the circuit court of the United States, sitting in any district in the State of Tennessee, having jurisdiction, after notice being given by publication, twice a week for four successive weeks, in some newspaper published in the city of New York and in some newspaper published in the city of Nashville, of an intention to apply for such appointment, to appoint such successor on the nomination of holders of not less than one-fourth of the bonds secured hereby, or, in the event of their failure to nominate, then on the nomination of the railway, and the successor or successors, in either such manner appointed, shall possess all the powers and incur all the obligations of the said trustee herein named; and, in case of such appointment, the railway covenants to make all such deeds and other instruments as shall be necessary to enable the party so appointed to execute the trusts hereby created as fully and completely as if such ap- pointed party had been originally the trustee. In witness whereof, the parties hereto have caused their respective corporate seals to be hereunto affixed and the same NASHVILLE, CHATTANOOGA '-' 7 PART II. GENERAL POWERS OF N., C & ST. L. RY. IN TENNESSEE, ALABAMA, GEORGIA, AND KENTUCKY. Since the passage of the original acts incorporating the Nashville, Chattanooga A St. Louis Railway, and the various branches forming its present system, many acts of the several states through which the roads pass have been enacted, considerably enlarging these powers. Amendments to the original charters have been made, as well as numer- ous general laws enacted, which enlarge the powers already conferred. In the succeeding pages will be found, in alphabetical order, the gen- eral powers of the corporation in the respective states as now possessed. CHAPTER L. ABANDONMENT BILLS, NOTES, ETC. ACKNOWLEDGMENT AGREEMENT ALTER OAUOE. Abandonment. [See Charter, forfeiture of.] Accept, bills, notes, etc. Railways are created for special purj>oses, and may resort to any legitimate means necessary and proper to carry out those purposes, unless prohibited by its charter or the general law. Hence, it may contract debts within the scope of its powers, and may make provisions for their payment by drawing, indorsing or accepting bills and notes. 6 Hum. (Tenn.), 516; 9 Hum. (Tenn.), 26-t; 11 Hum. (Tenn.), 22; 2 Cold. (Tenn.), 655; 2 Swan (Tenn.), 371; 7 Heis. (Tenn.), 288; 9 Heis. (Tenn.), 524, 533, Thompson on Corp. 3989. It is unnecessary to set out the laws of Alabama, Georgia, and Ken- tucky as to the above, inasmuch as the Nashville, Chattanooga & 8k Louis Railway is a corporation of Tennessee only, and its actions in this regard must be controlled entirely by the Tennessee law. 628 BILLS, ETC., ACKNOWLEDGMENT, AGREEMENT, GAUGE. Acknowledgment. [In Tennessee]. By Acts Tennessee, 1899, p. 364, ch. 187, the authentication or acknowledgment for record of a deed or other instrument executed by a corpor- ation, whether it has a seal or not, was made good and suf- ficient when made substantially in the following form : 1 ' STATE OF - , [ COUNTY OF - . j " Before me - , the state and county aforesaid, person- ally appeared - , with whom I am personally acquainted, and who, upon oath, acknowledged himself to be the president (or other officer authorized to execute the instrument) of the , the within named bargainer, a corporation, and that he, as such - , being authorized so to do, executed the foregoing instrument for the purpose therein contained, by signing the name of the corporation by himself as . " Witness my hand and seal, at office, in - , thig - day of - -." [In Alabama.] By 996 of the code of Alabama (1896) the following is the form of acknowledgment to be used in the state on conveyances of every description admitted to record: 1 ' THE STATE OF - COUNTY . " I (name and style of the officer), hereby certify that , whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, he executed the same voluntarily on the day the same bears date. Given under my hand, this day of - , A.D. - . "A. B., Judge," etc. (or as the case may be). [In Georgia.] [See form on p. 396-397 herein.] [In Kentucky.] [See code Ky. (1894), 501, et seq.} Agreements. [See also "Contracts."] "All contracts and agreements authenticated by the president of the board shall be binding on the company without seal, or such other mode of authentication may be used as the company by its by-laws may adopt." Nashville, Chattanooga & St. Louis Railway Char- ter, 11, p. 8 herein. GENERAL POWERS OF THE N. , C. A ST. L. RY. 629 Deed* to real estate, etc., however, were required at common law to be under seal, and neither the above section of the charter, nor 2478 of the code of Tenn. (M. & V.), changes this law as to such conveyances. In all such cases the seal of the company should be attached to make it valid. 10 Pick. (Tenn.), 460; [see also "Contracts."] Alter gauge. [In Tennessee.] There are no charter pro- visions of the Nashville, Chattanooga & St. Louis Railway, or amendments, on this subject, but, under the general laws, all railroads, whether chartered under special or general act, are allowed to adopt such gauge or gauges as they like, and to alter the same at pleasure. Acts Tenn. 1885, ch. 20, p. 67; code Tenn. (Shannon's), 2414. The branches of the Nashville, Chattanooga & St. Louis Railway that were chartered under the general acts of 1875 all have a clause on this subject. See sec. 34, p. 421 herein. 630 BONDS, BORROW MONEY. CHAPTER LI. BONDS BORROW MONEY. [See, also, Mortgages.] [in Tennessee.] When and how bonds may be issued and Subscribed for. May borrow money. There are no provis- ions in the charter, or amendments thereto, upon this subject, but it is a well established principle of law that, in the absence of statute to the contrary, a corporation may borrow money for any lawful purpose and issue negotiable bonds as security therefor. 77 N. C., 289; 75 Am. Dec., 574; Thompson on Corp., sees. 6050, 3988; code Term. (M. & V.), 1251, 1701. It cannot issue bonds, however, secured by mortgage, which are never to mature. II). If the company has power to issue bonds, they will be valid, although the mortgage given to secure them may be void for want of authority in the company to execute the same, etc. The mortgage is merely collateral to the principal undertaking is but an additional security for it, and its invalidity cannot, of course, affect the primary obligation to pay the debt. 75 Am. Dec., 574; Thompson on Corp., sec. 6062. Railways may issue by Statute. Under the general laws of the State of Tennessee, railways have the power to borrow money and to issue bonds therefor, or for any other indebted- ness or liability which they may incur, or may have incurred, in the exercise of their lawful purposes, and to secure the pay- ment of such bonds, with the interest thereon, by a mortgage of the whole or any part of its railroad and equipments and other property and franchises, containing such provisions as their directors shall approve. Code Tenn. (M. & V.), 1251; acts Tenn. 1871, ch. 69; Shannon's code, 1510. The above act supersedes the acts of Tenn. 1871, ch. 22; but see act itself. How and when bonds may be issued. Any railroad com- GENERAL POWERS OF THE N. , C. A ST. L. RV. 631 pany in this state may issue bonds in such amounts, and bear- ing such rate of interest, not exceeding the legal rate of interest at the place where payable, as may be determined on by stockholders representing a majority of all the stock in the company, and may secure the payment of such bonds, princi- pal and interest, by mortgage of the franchises, roadl>ed, superstructure, equipments, and property of every description of such railroad company. The mortgage above authorized shall not interfere with prior liens, especially the liens of the state in the existing mortgages in favor of the state. Code Tenn. (M. & V.), 1276; Acts Tenn. 1870-71, ch. 116, 1; (Shannon's Code Tenn., jj 1511.) Same. May also issue income and debenture bonds. Rail- road companies existing under the laws of this state, or of this state and any other state or states, whose original charter of incorporation was granted by this state, are empowered to issue bonds, and secure the payment thereof by mortgage upon their franchises and property in any state, or upon any part of such franchises and property, or to issue income or debenture bonds, and such guaranteed, preferred, and common stock as may }ye determined upon by the stockholders; Pro- vided, The same be approved by the votes of the holders of three-fourths in amount of the entire stock of said company at a regular or called meeting of the stockholders of said com- pany, and that sixty days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper, of the time, place, and purpose of the meeting. Code Tenn. (M. & V.), 1277; Acts Tenn., 1881, ch. 9; code (S.), 1542. The supreme court has decided that this act did not repeal the special limitations imposed by acts 1877, ch. 72, upon power of consolidated railwaj- companies to make mortgages. 4 Pick. (Tenn. ), 140; see Acts Tenn., 1873, ch. 8, sec. 3-5. Same. May issue to pay for acquired lines, or guarantee bonds Of lines SO acquired. "Any and all railroad companies now or hereafter existing under the laws of this state, or of this state and any other state or states, whose charter of incor- poration was or may be granted by this state, l>e, and they are 632 BONDS, BORROW MONEY. hereby, authorized and empowered to acquire the line or lines of any other railroad company, either in this state or in any other state or states, which may connect with and form parts and parcels, or branches or extensions, of the line of such company chartered by this state, or by this state and any other state or states; and are authorized and empowered to so acquire such branches or extensions by purchase, lease, or otherwise, and pay for the same by the issue of their own cap- ital and bonds, or by guaranteeing those issued by the com- pany whose line may be so acquired, purchased, or leased; Provided, however, That nothing in this act shall be construed so as to authorize the acquisition in any way by any corpora- tion or company of parallel or competing lines." Acts Tenn. 1891, ch. 125, p. 271. Guaranteeing bonds of other roads (continued). All rail- road companies of this state, and any other state or states, are authorized and empowered to ... and to indorse and guar- antee the bonds of any railroad company or companies in any state or states, whose original charter of incorporation was granted by the State of Tennessee; Provided, That the same be approved by the vote of three-fourths in amount of the capital stock of said company present and voting, either in person or by written proxy, at a regular or called meeting of the stockholders of said company; And provided further, That sixty days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper of the time, place, and purpose of the meeting. Code Tenn. (M. & V.), 1275; Shannon's code, 1540; Acts Tenn., 1881, ch. 9, sec. 2; Acts Tenn., 1891, ch. 61, p. 146. See 4 Pickle (Tenn.), 140. Railroad terminal companies. By sec. 39 of the charter of railroad terminal companies, railroad companies were authorized to guarantee their bonds. See p. 564 herein. May subscribe for bonds in other roads. Any railroad company created by and existing under the laws of this state, and any lessees of a railroad of such company, from time to time, may subscribe for or purchase the stock and bonds, or either, of any other railroad company or companies chartered (-KNERAL POWERS OF THE X., C. ns in the same series in the distribution; and that as he had transferred the coupons to the contractors after they were past due, they did not receive them subject to any protection which attaches to the assignee of commercial paper before maturity. " Thomp- son on Corp. 6117, citing 128 U.S. 416; 99 U.S., 235. See 10 Pick. (Tenn.) 176, as to who are innocent purchasers of coupons. Rate Of interest On bonds. The rate of interest on bonds, lawful where made payable, are not usurious on their face, though interest lie in excess of thnt allowed in this state. 87 Tenn., 781. Counties, towns, etc-, may subscribe for stock, bonds, etc., in railroads, hOW. For method see Shannon's Code Tenn., 154:2 , et se<}. 636 CHAPTER LII. BRANCH ROADS SIDE AND SPUR TRACKS. Definition Of branch road. The definition of a branch road can depend neither upon its length nor its direction. The word "branch" in such connection is equivalent to "section" or "subdivision," and is as applicable to a direct extension from the terminus as to an offshoot of the main road. A lat- eral road, however, is a road branching off from the side. 1 Elliott on Railroads, sec. 42; 20 Am. & Eng. R. R. Cases, 314; 66 Mo., 228; 86 Va., 618; 43 Am. & Eng. R. R. Cases, 617; but see Rorer on Railroads, p. 36. [In Tennessee.] Power of this company to construct The right to construct branch roads may be said generally to de- pend upon charter provisions. Unless power to build them is conferred upon a company by its charter or the general laws of the land, either in express terms or by necessary implication, they cannot be constructed, and no power exists to condemn a right of way therefor. 12 Vroom (X. J.), 205; 1 La. Ann., 128; 9 La. Ann., 284; 20 Am. & Eng. R. R. Cases, 319; 79 Pa. St., 257; 56 Pa. St., 325, 305; 35 Md., 224; 3 Am. & Eng. R. R. Cases (annotated), 71; 95 Ala., 434. The only provision in the charter of the Nashville, Chatta- nooga & St. Louis Railway upon this subject is to be found in sec. 22, p. 13 herein, which provides that "the said company shall have the right, when necessary, to construct the road, or any branch thereof, across or along any public road or water course; Provided" etc. In addition, sec. 40 of the charter of the railway permits other corporations or individuals to con- struct branches to connect with this road, with permission of the legislature, upon certain terms therein set out. A literal construction of the above sections, however, would hardly confer upon this company the right to construct branch GENERAL POWERS OF THE N. , C. ST. L. RY. 637 roads. It was evidently the intention of the legislature to do so, as the following act, passed subsequently, indicates: "Be it enacted, That the Shelbyville Branch, and such other branches of the Nashville & Chattanooga road as may be made, shall have all the rights and privileges and shall be placed, in all respects, on the same footing with the Nashville & Chatta- nooga road; Provided, That nothing in this act shall be so construed as to diminish the liability of the stockholders of the company in any way." Acts Tenn., 1849-50, ch. 266. Whether this latter act gives the right to construct branches in the future or not, it, at least, clothes them, when lawfully constructed, with very valuable rights and privileges namely, those of the Nashville, Chattanooga & St. Louis Railway. Nothing, however, under the present law would prevent the company from purchasing branches after they are built, and, in some cases, before they are completed, if they are not com- peting lines and have the power to sell, either under their charter or the general law. See "Purchase of Roads " herein. May build brancb roads, When. Under the general laws of the state of Tennessee, however, any railroad company oper- ating a railroad, or any part of same, in Tennessee, or that may hereafter do so, shall have power to build or acquire lat- eral or branch lines of railroad, not to exceed fifteen miles in length, for any one of such lateral or branch roads, extending from its main stem in Tennessee to any mine or quarry, or into any mineral section of country tributary to such main stem, for the purpose of developing the mineral material re- sources of the country; and such railroads shall have power to condemn private property for use in the construction and oper- ation of such lateral or branch roads; Provided, That private property shall not be taken therefor against the owner's will, without condemnation thereof, as now provided by law in other cases, and such roads shall be as common carriers, subject to the same duties and restrictions as the main lines with which they connect. Acts Tenn., 1899, ch. 259, p. 587. 1. The second section of the above act provided that nothing therein should be so construed as to authorize the purchase or consolidation of, 638 BRANCH ROADS, SIDE TRACKS. or with, competing lines, or to relieve them from taxation on said branches. 2. For method of condemning, see "Eminent Domain " herein. Same. Under another act of Tennessee it is provided that "any railway company chartered under the laws of the state of Tennessee, and now operating, or which may hereafter operate any line of railway within this state, is granted authority and power to build lateral roads, not exceeding eight miles in length, extending from the main stem of said line of railroad to any mill, quarry, mine, manufacturing plant, or the bank of any navigable stream, without the making of any amendment to the charter of said railroad; Provided, Private property shall not be taken for the uses of such company, or the construction of such lateral branches, without condemna- tion thereof, as now provided by law." Acts Tenn. , 1895, p. 314, ch. 152. Power to construct gives implied power to con- demn. Elliott on K. R., sec. 42. The words "main stem" in the above act would doubtless be construed to apply not only to the main stem proper, but to all well established and important branches that were originally constructed under their own charter and subsequently purchased or leased by this company; as, for instance, the Northwestern Branch, the Cen- treville Branch, etc. These roads were originally the " main lines" of their respective companies. They were not pur- chased under a restricted authority to purchase bra?icke$>, but under a broader authority to purchase other railroads. This being so, the authority conferred by the legislature to purchase and operate other roads would doubtless, by implication, con- stitute the roads so purchased a part of the main stem. As to the method of condemnation, and in whose name to be done, where the lateral road is to extend from a purchased or leased branch, see "Eminent Domain" herein. What charters may be amended so as to authorize branch roads. In this connection it may be added that all railroads chartered under the general laws of the State of Tennessee, may amend their charters so as to build branch roads. Acts Tenn., 1889, p. 303, ch. 158. It will be noticed, however, GENERAL POWERS OF THE N. , C. A ST. L. KY. 639 that this act only applies to railways chartered under the general laws, and not to those chartered by special act, as was the Nashville, Chattanooga & St. Louis Railway. For method of condensing see " Eminent Domain " herein. Right of others to construct branch roads to connect with Nashville, Chattanooga & St. Louis Railway. Section 40 of the charter, p. 23 herein, provides that "any individual or in- dividuals, company or body corporate, with permission of the legislature of this state, may hereafter construct branches to unite with the Nashville and Chattanooga Railroad," and then proceeds to set out the terms and conditions upon which it may be done. For particulars see section 40 of charter and notes thereunder. May build branch roads to unite with other railways. Under the general law all railways have the power to construct their roads so as to unite with each other as with branches. Acts Tenn., 1851-2, 16, ch. 151; Code Tenn. (S. 1 ) 1504. Under this a railway may condemn land to build a track connecting or uniting it with another railroad. 14 Lea, 65; 9 Bax., 522. [In Alabama.] Branch roads may be constructed or lines extended. In Alabama it is provided that "a corporation, now existing or which may hereafter be organized for the building, constructing, and operating a railroad has authority, for the purpose of extending its line or forming a connection, to ac- quire, hold, and operate a railroad without the state; or within the state may extend its road, or may build, construct, and operate branch roads from any point or points on its line." Code Ala., 1896, 1172. Same. Mode of making, purchasing, or extending branch roads. Such purchase must be made by resolution of the board of directors, which must be submitted to a meeting of the stockholders, called for the purpose of its consideration; of the time and place of which meeting, and of the purpose for which it is called, thirty days' notice must be given to each stockholder whose residence is known and by publication for four consecutive weeks in a newspaper published at the princi- pal place of business of the corporation, and at such meeting 640 BRANCH ROADS, SIDE TRACKS. must be approved by the vote of a majority in value of the stockholders; and if such resolution is so approved, a copy thereof, and of the proceedings of the meeting of the stock- holders, certified by the president and secretary, under the cor- porate seal, must be filed and recorded in the office of the sec- retary of state. Such extension or construction of such branch road must be made by resolution of the board of directors, to be entered in the record of the proceedings of the corporation, and designating the point from which and the point to which such extension, or such branch road, is to be constructed. A copy of such resolution, certified by the president and secre- tary, under the corporate seal, must be filed and recorded in the office of the secretary of state, and thereafter, for the pur- pose of making such extension or building such branch road, such corporation shall have all the rights, powers, and immu- nities which are now or may hereafter, by the laws of this state, be granted to and vested in railroad corporations under and by virtue of the general incorporation laws of the state. Code Ala., 1896, 1173. For method of condemnation, see " Eminent Domain," herein. [in Georgia.] Branch roads and extensions may be built, how. " Every railroad company may extend its railroad from any point named in the petition for charter, or may build branch roads from any point or points on its line of roads. Before making any such extensions or building any such branch roads, said company shall, by resolution of its board of directors, to be entered in the records of its proceedings, designate the route of such proposed extension or branch, and advertise same in all of the counties through which said extension or branch road will run, for the time and in the manner provided by section *2160, and file a certified copy of such resolution and adver- tisements in the office of the secretary of state, which shall be by him recorded as original petitions for charters are filed, and said company shall pay to the treasurer of the state for the same a fee of twenty-five dollars for each extension or branch road. Thereafter said railroad shall have the right, within one year from the filing of said resolution with said secretary, to GENERAL POWERS OF THE N., C. A ST. L. RY. 641 begin the construction and equipment of said branch or exten- sion, and if they fail to construct as much as twenty miles within two years, or complete the same if it be less in length than twenty miles, the powers and privileges to do so shall cease and determine. For the purpose of such extension or branch road said company shall have all the rights and privileges of condemning rights of way, or acquiring the same, provided for constructing and building the main line. All the provisions of this article relative to the issuance of stocks and bonds on the road, authorized under the original petition for incorporation, shall be applicable to, and control the issuance of, stocks and bonds on said proposed extensions." Code Ga. , 1895, 2169; Acts Ga., 1892, p. 45. *1. Section 2160, above referred to, provides, among other things, that " they have four weeks' notice of their intention to apply for said char- ter, by the publication of said petition in one of the newspapers in which the sheriff's advertisements are published, in case there is a newspaper published in said county, in each of the counties through which said pro- posed road will probably run, once a week for four weeks before the fil- ing of said petition." 2. By \ 5799 of the code of Georgia. 1895, it is also provided that rail- roads may take advantage of amendments for the purpose of allowing any existing road to take stock in or aid in the building of any branch road, without bringing the charter of said company under the provisions of the constitution of Georgia. 3. For method of condemning land for, see ''Eminent Domain," herein. Refer to index. [In Kentucky.] Branch roads, switches, spurs, etc. "Any company may build such spurs, switches, tracks or branches as may be necessary to conduct its business or de- velop business along its line of road, and for that purpose shall have all the powers, and be subject to the same restrictions and liabilities, as are conferred upon it for the construction of ite main line," etc. Code Ky. 1894, 769. For method of condemning land for, see " Eminent Domain" herein. Refer to index. [Generally,] May build side tracks and spur tracks. It is well recognized that a railway company may build side tracks and spur tracks on its right of way to establishments of ship- pers, as a power incidental to expressly granted powers. Elliott 41 64:2 BRIDGES, POWER TO BUILD, ETC. on Railroads, vol. 1, 42; 43 Minn., 527; 43 Am. & Eng. R. R. Cas., 170; 65 Pa. St., 1; 3 Am. & Eng. R. R. Cas., 186. But see 31 W. Va., 710; 36 Am. & Eng. R.R. Cas., 531, 553; 72 Mich., 206. [In Alabama.] Though a railroad may have implied power to construct necessary turnouts and switches, yet the power to construct a branch is only given by statute. 95 Ala., 434. For method of condemning, see " Eminent Domain" herein, sub-head successive appropriation. CHAPTER LIII. BRIDGES POWER TO BUILD, REPAIR, ETC. Charter provisions. The charters of nearly every one of the roads now owned and controlled by the Nashville, Chatta- nooga & St. Louis Railway have clauses, or some special act, permitting and regulating the erection of bridges over water courses. As only the main branch and northwestern division cross navigable streams, the charter provisions of those roads alone will be here set out. For information as to the other branches, see notes to their respective charters. Same. Main branch authorized to build. By section 22 of its charter the Nashville, Chattanooga & St. Louis Railway was given the right when necessary to construct the road, or any branch thereof, across or along any public road or water course; Provided, That the said road and the navigation of such water course shall not be thereby obstructed. See p. 13 herein. The above section does not prevent temporary obstructions when necessary in building and repairing. 6 Pick. (Tenn.); 638; 88 Tenn., 331; 119 U. S., 280, 543. Same. Main branch authorized to purchase. By section 23 of the charter the Nashville, Chattanooga & St. Louis Rail- way was given power to purchase, have, and hold any bridge GENERAL POWERS OF THE N., C. A ST. L. RY. 643 or turnpike road over which it may be necessary to carry the said railroad. See p. 14 herein. Same. Northwestern branch authorized to build or pur- chase bridges, hOW. For full discussion of this, see pp. 91, 99, herein. Bridge at Bridgeport, on main line over Tennessee river, hOW authorized. For full discussion of this, see notes on p. 14 herein. Lights must be erected, draws opened, etc.; how. [Tenn. Acts.] All railroads crossing navigable streams shall, upon signal given by any steamboat, open its draw immediately and hoist large red light, if at night, at least ten feet above top of gallies frame, and put white light on each end of draw as a signal that all is ready. Code Tenn. (M. & V.), {1533. [Alabama Acts.] By 3445 of the code of Alabama, 1896, all steamboats are required to whistle three miles, two miles, one mile, and one-half a mile from bridge on approaching. Section 3446, of same code, provides that the railroad company shall thereupon open said draw. Section 3447, of same code, also provides for a method of signal lights to be used by railroa.d to let boats know all is ready. Bridge at Johnsonville, on Northwestern Division, over Tennessee river; how authorized. For full discussion of this, see sec. 43 of charter, and notes thereunder, of Nashville & Northwestern Railroad Company, pp. 43, 44 herein. See notes to preceding section. Right to temporarily obstruct water courses in erecting and repairing. The obstruction of a water course, whether navigable or nonnavigable, by the placing in the stream of such temporary structures as are absolutely essential, and without which the work of erecting or repairing could not be accomplished, is legal, provided the company take care that such obstruction shall extend no further and be maintained no longer than is absolutely necessary for the completion of the work by the exercise of due diligence and the employment of an adequate force of men and machinery. Moreover, such necessary obstruction is not within the prohibition of the statute which provides: "No mill dam, fish trap, bridge, or other improvement shall be allowed so as to interrupt or in any- way impair the navigation of any water course of the state." 6 Pick., 638; 88 Tenn., 331; 119 U. S., 280-285, 543-550. 644 BY-LAWS. If the stream, however, is one of the navigable waters of the United States, then, before such bridge is built or obstruc- tions erected, a plan of the same must be submitted to and approved by the secretary of war. See acts of Congress 1888, ch. 860, as amended by acts of 1890, ch. 907, sec. 7. What is meant by ' ' one of the navigable waters of the United States" is a stream that is navigable in fact, and which, by itself or its connections with other waters, forms a continuous channel for commerce with foreign countries or states. 109 U. S., 385-395; 20 Wall., 430; (22:391). If the stream is navigable only between different places within the state, then congress has no jurisdiction over it, but only the state legislature, and it is not one of the ' ' navigable waters of the United States." 11 Wall., 411; 109 U. S., 385, In such cases the permission of the secretary of war need not be requested. CHAPTER L1V. BY-LAWS HOW AND BY WHOM TO BE ENACTED AND AMENDED WHAT ARE LEGAL PRESENT BY-LAWS OF NASH- VILLE, CHATTANOOGA & ST. LOUIS RAILWAY. [See also Meetings.] By wbom to be enacted. Under sections 1 and 9 of the charter of the Nashville, Chattanooga & St. Louis Railway the stockholders were originally given the power to pass all such regulations, rules, and by-laws as might be necessary for the government of the corporation and the transaction of its busi- ness, but this was amended by the acts of 1847-8 ch. 70, and accepted by the company, so as to confer upon the direc- tors, instead of upon the stockholders, all such power. Ordi- narily the directors have no power to make by-laws, but in this instance the power has been conferred upon them by an amendment to the charter. This was legal. See 8 Bax. (Term.), 108. GENERAL POWERS OF THE N., C. A ST. L. RY. 645 What by-laws are legal. Generally speaking a corporation has the implied right and power to enact any by-laws not in- consistent with the charter, constitution, and laws of the land, for its] government and the government of its officers and agents. Rorer on Kail roads, 226; 18 Gratt, 819; 91 Tenn., 64. A by-law imposing restraints upon the alienation of stock, however, is void. 3 Lea, 6. By-laws proper are not of a public nature and are obliga- tory only .upon the corporate body, its corporators and agents. They do not affect the public in general, and hence large lati- tude is allowed in their enactments and they are considered reasonable if they are not in violation of the charter, the con- stitution, and the general laws of the land. By-laws, -however, are not what are usually meant by the terms "rules and regulations." The latter are for the direc- tion and government of the employes and servants practically conducting the business of or engaged in operating the road and for passengers and others of the public transacting busi- ness with the company. Rorer on Railroads, 226; 4 Zabr., 435. The law governing the enactment of rules and regulations, as they affect the public, is different from that relating to the passage of by-laws. See subhead, " Rules and Regulations." By-laws of a corporation are not evidence for it against strangers who deal with it, unless such by-laws are brought home to their knowledge and are assented to by them. Rorer on Railroads, p. 227; 68 N. C., 107. HOW enacted Or amended. All by-laws, orders, and resolu- tions adopted by a railway company are always under the con- trol of a majority of the stockholders [or directors where they are given the authority to pass them, as in this instance], unless expressly provided otherwise by the charter, and may be re- pealed, altered, or modified from time to time by the majority. 5 Sneed (Tenn.), 566-68. The present by-laws of the com- pany provide that "no alteration or amendment shall be made in these by-laws except with the consent and approval of a majority of the whole board, and shall first have been brought up at one meeting of the board, and laid over until the following one." See by-laws in question, set out below. 64:6 BY-LAWS OF THE N. , C. & ST. L. RY. PRESENT BY-LAWS OF THE N., C. & ST. L. RY. The following are the by-laws of the N., C. & St. L. Ry. as adopted by the board, Dec. 1-i, 1898: BY-LAWS. STOCKHOLDERS' MEETINGS. SECTION* 1. A general meeting of the stockholders shall take place Annual meet- annually, on the first Wednesday after the second Tuesday ing of stock- holders, of September, in the city of Nashville, at which an elec- tion for fifteen directors of the company shall be held. Notice shall be Notice to be given by publication in one or more of the newspapers of & lven ' the state, as may be ordered by the board of directors. SEC. 2. Should the time fixed for the annual election of directors pass Board of stock- without an election being effected, the same may be held holders to fix date of meet- on such subsequent day as may be designated by the board faflure C tc> 8 hold ^ directors or by the stockholders at a general meeting, election. notice of which election shall be given in the manner afore- said. SEC. 3. In all cases, the directors for the time being, and the officers Directors and elected bv them, shall continue in office until their succes- officers hold over. sors shall be elected. SEC. 4. The presence, in person or by proxy, of those who are the owners of a majority of the stock of the company shall be Legal meeting. necessary to constitute a legal meeting of the stockholders, authorized to transact business. DIRECTORS. SEC. 5. The officers of the company to be elected by the directors shall Officers b e a president, who shall be a member of the board, a sec- retary, treasurer, and comptroller. In addition to the officers designated, there shall be appointed by the Officers president, subject to confirmation by the directors, a gen- appointed, eral manager, traffic manager, general counsel, real estate agent, and such other officers as he shall from time to time deem neces- sary. SEC. 6. The principal office of the company shall be in Nashville, Principal Tenn., and shall be kept open every day except Sundays and legal holidays, unless otherwise ordered by the board of directors or president. Regular meetings of the board shall be held GENERAL POWERS OF THE N. , C. A ST. L. RY. 647 at the office of the company in the city of Nashville, Tenn., Board meet- on the second Tuesday of January, April, July, and Octo- '* ber, at eleven o'clock A.M. Other meetings of the board shall be held on the call of the president, as the business of the com- special board pany may demand. Special meetings may also be held at m tin - the request, in writing, of any three members of the board. Eight members shall constitute a quorum for the transaction of Quorum of the business. board< SEC. 7. The president shall preside at meetings of the board, preserve order, and regulate debate according to the usual parlia- Presiding mentary rules. In the absence of the president, a chair- offloer - man pro tempore shall be appointed by the board. SEC. 8. There shall be appointed annually, as soon as may be after the organization of the board, the following standing com- mittees, viz. : An executive committee, consisting of three committee*, members of the board, whose duty it shall be to aid and Executive committee. direct and advise in the management of the affairs of the company as might be done by the board of directors if in session. Said committee shall meet at the call of its chairman, or at the request of the president. A finance committee, consisting of three members of the board, which shall have general supervision of the funds and securities of the com- pany. It shall also be its duty to examine and count the finance securities and cash in the custody of the treasurer at least e mm tt. once every three months, and report to the board of directors as soon as possible after the first days of January, April, July, and October in each year. The president shall be ex offlclo a member of all commit- _ President ex- tees, and shall be notified of all meetings of committees. officio member All committees shall be appointed by the president, *" committ - unless otherwise ordered by the board. SEC. 9. All elections for officers shall be by ballot, unless officers, mode by unanimous consent, when the vote may be taken viixi ' electin f- voce. Any vacancies that may occur in the board, from any cause whatever, shall be filled by the board by the election of a person to Vacancies fill such vacancy, as provided for in the tenth section of koard. the charter. SEC. 10. No member of the board shall, on behalf of this company, negotiate any contract or arrangement for work or materials for the use and benefit of this company, to be done or furnished by Directors shall any company or partnership in which he may have an in- " n 5t co Vtracu lt * d terest, nor shall he be entitled to vote on the acceptance with company, or approval of any purchase or contract in which he is interested. No officer, agent, or employe of the company shall be concerned, di- rectly or indirectly, in any contract, arrangement, or engagement for doing work or furnishing materials to the company, or be officers. connected with any other company, person, or firm en- 5f*yes',haU* m ~ gaged in the transportation of persons or property over its not be interested . . in contracts lines, or be interested in any manner whatsoever in with company. 648 BY-LAWS OF THE N. , C. & ST. L. RY. any business done with the company when transacted by others over its lines. No money shall be advanced, nor shall any financial obligation or Restrictions as contract for advancing money to any individual or com- financiaf ' pany, or for leasing, operating, constructing, or otherwise obligations. controlling any road of any other company, be entered into, unless the matter shall have been first brought to the special at- tention of the board, when it shall be discussed and laid over until the next meeting (unless by unanimous consent of the members present), and become valid only by receiving the approval of a majority of the whole board. Order of SEC. 11. The order of business shall be as follows: business. j Reading of minutes, which shall stand approved if there be no motion to amend them. 2. Report of committees. 3. Report of the president, or other officers of the company. 4. Miscellaneous communications. 5. Unfinished business. 6. New business. Certificates of SEC. 12. Certificates of stock shall be issued to the stock- stock, stockholders, and transfers of them made when required. Any person or persons claiming a certificate or evidence of stock to be issued in lieu of one lost or destroyed, shall advertise the same in one or more newspapers in Nashville, Tenn., twice a week for four weeks, giv- ing the number and date of certificate lost, and the number fiMte'rf'stock!" of shares it represented. The party shall then make appli- cation to the board of directors, describing the certificate by its number, date, and amount, and give full details as to the manner of loss, verified by oath or affirmation, and accompanied by a copy of the advertisement, and also a bond of indemnity, with satisfactory security, in at least double the amount of the par value of the shares represented by the certificate, against any loss or damage that may arise from the issuing of a new certificate, whereupon the board may direct the issue of a new certificate of the same tenor with the one alleged to have been lost or destroyed, specifying upon the face of the certificate that it is in lieu thereof and a duplicate. SEC. 13. All notes issued by the company shall be signed by the presi- dent, countersigned by the treasurer, or the assistant treas- by 8 tnVcompany urer ' an( * have the seal of the company affixed by the secre- tary, or persons specially authorized in case of his absence or disability. SEC. 14. The official seal now in use by the company shall continue to Official seal. be its official seal until otherwise ordered. SEC. 15. No alteration or amendment shall be made in these by-laws except with the consent .and approval of a majority of the amendment whole board, and shall first have been brought up at one of by-laws. meeting of the board, and laid over until the following 1 one. GENERAL POWERS OF THE N., C. & ST. L. RY. '.4'.' SEC. 16. All by-laws and regulations in conflict herewith are hereby repealed and abrogated, and these by-laws shall take effect j omn and be in force from and after January 1, 1899. repealed. ORGANIZATION FOR CONDUCTING THE BUSINESS OF THE COMPANY. That the duties, powers, and responsibilities of the officers and em- ployes of the Nashville, Chattanooga and St. Louis Railway may be de- fined and fully understood, and its accounts systematically and correctly kept, the board of directors has adopted the following organization for conducting the business of the company: The administrative duties upon the line of the road, its branches, and the connecting roads over which the company's cars now Distribution of or may hereafter pass, shall be distributed as follows, viz.: administrative To the general office, the operating department, traffic de- dutiet> partment, supply department, accounting department, law department, and real estate department, with such other agencies for special objects as the board may from time to time deem necessary. GENERAL OFFICE. PRESIDENT. The president shall preside at the meetings of the board of directors and be ex officto member of all committees. He shall call meetings of the board and of the committees when he deems. necessary. He shall be the medium of communication to the board and to the committees of all matters presented for their consid- eration, and shall have general supervision and direction of all depart- ments of the company's service. TREASURER. The treasurer shall give bond in the sum of not less than $25,000, or deposit with a safe depositary agreed on by the parties, se- D ut i e s of treas- curities of that value (in neither of which shall a member of f" .\J? on * for $25,000 ; custo- the board or officer of the company be a party or interested) dim of com- for the faithful performance of all his duties. He shall be ^.^uriSel" the custodian of the company's funds and securities. The withdrawal of securities. securities shall be deposited in the company's box in a safe deposit company's vault, and shall be deposited or withdrawn only in the presence of the president or a member of the finance committee, and shall be withdrawn for sale or otherwise only on the written order of the president, which order shall specify the disposition of such securi- ties to be withdrawn. He may retain in his safe notes received by the company. He shall keep a set of books showing the receipts and disposition of all the company's funds and securities tis^afe'sundry that may pass through his hands, and keep the accounts no , u ; tr*ur- er s account*, with such banks or places of deposit as the board, or finance committee with the approval of the board, may from time to time desig- nate. 650 BY-JLAWS OF THE N., C. A ST. L. BY. The treasurer shall report daily tc the comptroller the receipts and disbursements of his office, in or'der that thev may be en- Daily reports to accounting tered on the general books of the company. He shall also and" exports' to make a daily statement of such receipts and disbursements president ; to the president, showing 1 the daily cash balance and the books open for inspection of banks in which it is deposited. His books shall, at all president, etc. ti meS5 be open for inspection by the president, finance com- mittee, or any member of the board. All checks shall be signed by the treasurer, or by the assistant treas- Signing and urer when authorized by the treasurer. The treasurer shall of^e'cki^ap? not P av anv voucher that is not properly approved for pay- proval of ment. He shall attend to such other duties connected with vouchers ; other duties. the finances of the company as may be required of him by the president. ASSISTANT TREASURER. The assistant treasurer shall give bond in the sum of not less than $25,000, or deposit with a safe depositary, agreed on by the Duties of as- sistant treas- parties, securities of that value (in neither of which shall a member of the board or officer of the company be a party or interested), for the faithful performance of such duties as may from time to time be assigned to him. SECRETARY. The secretary shall keep a correct record of the proceedings of the Duties of sec- board, give the required notice to the members of all stated retary. an d special meetings, attend the meetings of all standing or special committees, when required, and keep a record of all their pro- ceedings. Contracts, He shall have the custody of originals of all contracts, agreements, and (j ee( j g an( j agreements, and of other valuable papers. valuable papers. He shall keep the stock and transfer books of the corn- Stock transfer pany, cancel old certificates at the time of transfer, and register all certificates of stock, and sign and affix the seal of the company to the new certificates. He shall see that all certificates of stock are countersigned by the Certificates transfer agent and the register, and that no transfers are made except on the stockholder's signing in person or by attorney. No transfer shall be allowed without the surrender of the certificate Transfer of transferred, and such certificate shall be cancelled and stock. filed No transfer of stock shall be made for ten days next preceding any meeting of the stockholders, nor for ten days prior to the payment of a dividend. He shall examine all New York cancelled certificates surrendered by Cancelled the register, and file the same. He shall certify all vouch- certiflcates. ers o f ^he general expense account that may from time to General expense time be fully approved, and also the general expense pay account. rolls. He shall give notice of annual or other general or GENERAL POWERS OF THE N., C. performed by treasurer. treasurer. TRANSFER AGENT, NEW YORK. The transfer agent in New York shall give bond in the sum of not less than 810,000, or deposit with a depositary agreed upon Duties of tram- by the parties securities of that value (in neither of which fer agent. Hew shall a member of the board or officer of the company be a York - party or interested), or any amount that may be approved Bond O by the board, for the faithful performance and discharge of his duties. He shall cancel all the New York certificates presented for transfer, issue new certificates therefor, and counter- Transfer of sign and present the same to the registrar for countersigna- ttock - ture and certificate of cancellation of prior certificate. He shall keep the necessary transfer books, which shall show every transfer, and also a ledger giving the name of each stockholder. He shall make daily reports to the secretary at Nashville of all fer of (took to transfers of stock, and at the end of the month report the < total number of shares transferred during the month, which must agree with the certificates returned by the registrar. He shall also perform such other duties as the president or board may from time to time assign to him. REGISTRAR OF TRANSFERS. There shall be appointed by the president, subject to confirmation by the board of directors, an incorporated bank or trust company in the city of Nashville, and one in the city of New York, to act as . registrar of transfers, and no certificate of stock hereafter registrar of issued in Nashville shall be valid or binding on this com- ***** pany unless registered and countersigned before issue by the said regis- trar of transfers in Nashville; and no certificate of stock issued in New York shall be valid or binding on this company unless reg- Certificate* to istered and countersigned before issue by the said registrar i jg e d ll b e f or of transfers in New York, and no certificate of stock shall iMU - be accepted for transfer and cancellation unless so registered. The registrar of transfers shall register and countersign no certificate of stock, except such as shall be presented for registry by the transfer agent of the company, duly countersigned by the latter, and unless ac- companied by a certificate or certificates for an equal number of shares duly canceled. The registrar of transfers in New York shall also keep the necessary registry books for the registration of any bonds which may a e .i it r a tion be presented for that purpose. of nds. 652 BY-LAWS OF THE N., C. & ST. L. RY. OPERATING DEPARTMENT. GENERAL MANAGER. The general manager shall, under the supervision of the president, have charge of the operating department. He shall be responsible for the safe and economical working of the roads committed to Duties of general his charge, and shall report, as may be required by the president or board, upon their condition, and make, from time to time, such suggestions in relation to the operations of his de- partment as may seem to be necessary to promote the interests of the company. He shall have authority, with the approval of the president, to order, through the supply department, machinery and tools for MftCuin6ry > tools, and the shops; materials for repairs of rolling stock, machinery and roadway, and for all other purposes connected with his department. All special contracts for equipment, machinery, tools and materials Special must be sanctioned by the president or board, and copies contracts. thereof be furnished to the supply department and to the comptroller. Current supplies shall be furnished by the supply department on the Current written requisition of the general manager, or of such supplies. other officer as may be specially designated in writing by him. All accounts contracted prior to the first day of each month shall be Payment prepared for payment on proper vouchers and sent to the vouchers. auditor of disbursements, who shall examine the correct- ness of the same, see that the account charged is the proper one, audit and affix his signature thereto and submit them to the president for approval, and have them ready for payment on the 15th of the succeed- ing month. The general manager shall, with the approval of the president, ap- Staff officers point a chief engineer, a superintendent of machinery, and of the general manager. a superintendent of transportation, to assist him; he shall also appoint, with the approval of the president, superintendents of the various divisions of the system. He shall also prepare rules denning the duties, in detail, of all sub- Rules of his ordinate officers and agents in his department, which, department. when approved by the president, shall be strictly enforced ; and shall perform such other duties as the president may from time to time assign to him. All books or papers in the possession of the general manager, or of Books and any officer or agent in his department, shall be open to the ^officers 6 " inspection of the president or any member of the board, or inspectors, etc. such expert as they may authorize and appoint. In case of accident upon any of the roads under his charge, the gen- eral manager shall immediately report the facts to the president, and, as soon as possible, institute a thorough investigation into Accidents. the causes which led to it, and communicate in writing the GENERAL POWERS OF THE N., C. 4 ST. L. RY. 653 result, together with his views and action upon the case, to the presi- dent for the information of the board. The general manager shall keep the president fully advised of all occurrences and transactions of im- portance connected with his department. CHIEF ENGINEER. The chief engineer shall act as assistant to the general manager in all matters connected with maintenance of way, bridges, and Duties of chief buildings, and shall have the direction of any construction *"*> work that may be placed in his charge. He shall prepare Engineer of plans and estimates for the construction or repair of all >"* n<1 other struct- bridges necessary to be constructed or repaired, and shall ures. prepare plans and specifications and estimates for other structures that may be required; and it shall be his duty to make periodi- Report* to en- cal examination of all of the bridges and of the track, on * ra * >*** the several roads, and report upon their condition to the general man- Ijper. SUPERINTENDENT OF MACHINERY. The superintendent of machinery shall act as assistant to the general manager in matters pertaining to the mechanical department. He shall have general supervision and control over all the rolling Duties of super- , mtendent of stock, shops, tools, etc., and shall furnish copies of all machinery. standard drawings that may be required for work in the mechanical de- partment, and give such instructions as will insure uniformity in the construction and repair of all the company's rolling stock and ma- chinery. He shall keep a complete record of the numbers and condition of all the locomotives, cars, and machinery owned by the com- Record of roll- ing stock and pany, whether upon its own road or upon lines leased or equipment. otherwise controlled. He shall keep in his office a record of all patents owned or purchased, and shall see that all officers are properly informed con- Record of cerning the rights of the company therein, and perform P*** 01 *- such other duties as may be assigned to him by the general manager. In the performance of these general duties, he shall visit the shops of the company from time to time, and issue such instructions as he may deem necessary for the efficiency and economy of the service. SUPERINTENDENT OF TRANSPORTATION. The superintendent of transportation shall represent the general manager in the transportation department. He shall have charge of the distribution of the car equipment. It shall be his duty Duties of super- to see that the cars are moved promptly, so that they may intendent of be made to perform the fullest service possible. Ele shall consult freely with the traffic officers, so that they shall be, as far as possible, advised as to the supply of and demand for trans- portation to move the company's traffic, governed by its apparent neces- sity, in order to properly protect and promote the company's interest. 654 BY-LAWS OF THE N., O. & ST. L. RY. He shall keep a record of all of the cars belonging to this company, and a record of the movements of all cars on the company's inVstock and li Q es, and an account of the amounts that may become due increment of to it for the use of its cars on foreign roads, and of the cars i amount due to foreign roads for use of their cars on the onload. 6 * 1 * roads of this company, and he shall make a monthly report of the same to the auditor of receipts, who will make set- tlement of such accounts. He shall also have charge of the telegraphic service of the company, Telegraphic under such rules and regulations as may be adopted for his service. guidance, and perform siich other duties as may be as- signed to him by the general manager. DIVISIONS. The roads owned, leased, operated, and controlled by the company shall be in five divisions, each of which shall be in charge of a division superintendent, as follows: Nashville 1- The Nashville Division,' including the lines from Division. Hickman to Nashville, Dickson to Mannie, and West Nashville Branch. 2. The Chattanooga Division including the lines, Nashville to Chat- Chattanooga tanooga, Nashville to Lebanon, Wartrace to Shelby ville, Division. Cowan to Tracy City, and Bridgeport to Pikeville. 3. The Western & Atlantic Railroad and the Rome Railroad, ex- Atlanta tending from Chattanooga to Atlanta and Kingston to Division. Rome. Paducah and 4. The Paducah and Memphis Division, including the Memphis Div. lines from Paducah to Memphis and Lexington to Perry - ville. 5. The Huntsville Division, including the lines from Decherd to Huntsville Gadsden, Elora to Columbia, Fayetteville to Jeff, and Tulla- Division. homa to Bon Air. DIVISION SUPERINTENDENTS. Superintendents shall, on their respective divisions, ex- Duties of division su- ercise all the powers of the general manager which may permtendents. ^ e necessarv f or th e proper management of their divisions. They shall be responsible to the general manager for the maintenance of the roadway and buildings, and for the proper movement of cars and trains, and the economical administration of the business of their divisions. They shall, with the approval of the general manager, appoint suitable persons for the various subordinate offices in the oper- ating department, including station agents. TRAFFIC DEPARTMENT. TRAFFIC MANAGER. The traffic manager, under the supervision of the president, shall have direct charge of all the traffic of the company, freight, passenger mail, and express. He shall, subject to the approval of the president, GENERAL POWERS OF THE N., C. A ST. L. RY. 655 make all rates, arrangements, and contracts for such traffic over the lines operated by the company, and shall conduct the Duties of necessary negotiations with individuals, corporations, and traffic connecting or competing companies, in relation thereto. m * nm * er - He shall, subject to the approval of the president, appoint a general freight agent and a general passenger agent to assist him. GENERAL FBBIGHT AGENT. The general freight agent shall act under the direction of the traffic manager. He shall be charged with the duty of procuring freight traffic, and of properly assessing the rates fixed for the transpor- tation thereof, and shall instruct the freight agents, solicit- general ing agents, and station agents in all matters pertaining to * rei * ht a ent> the soliciting, receiving, forwarding, and delivery of freight. He shall also examine all claims pertaining to the freight service, and make vouchers certifying thereto, for such as are found valid, Qi aimi for J OM and transmit them to the traffic manager, who, if approving, *d damage, shall indorse such approval thereon, and transmit them to the auditor of disbursements. ASSISTANT GENERAL FREIGHT AGENT. The general freight agent may be aided by an assistant general freight agent, who shall act for the general freight agent in his ab- Dutiet of sence, and perform such duties as may be assigned to him ^"""freight by the general freight agent. agent. DIVISION FREIGHT AGENT. The general freight agent may be assisted also by a division freight agent of the Western & Atlantic Railroad, whose office shall be at At- lanta, Cta., and who shall, under the direction of the general freight agent, be specially charged with the dnty of procuring freights for, and making local rates on, his division. With division this object in view, he shall spend as much time as practi- frel * ht *R ent - cable on the division under his charge for the purpose of familiarizing himself with the requirements of the agricultural, manufacturing, and commercial industries along such division, and adjacent thereto, and shall consult with the division superintendent and other local officers in regard to all matters connected with the development of the local freight traffic of the road. GENERAL PASSENGER AGENT. The general passenger agent shall act under the direction of the traffic manager. He shall be charged with making arrangements Duties of g*n- and rates for the passenger traffic over the lines owned and J^nt'palif" operated by the company, and shall also, with the approval ' traffic, of the traffic manager, make all necessary negotiations and arrange- ments with other railroad companies in relation thereto. The printing and distribution of all tickets and passenger advertising matter shall be entrusted to his charge. He shall be aided by an assistant AmtiiUBt general passenger agent, who shall perform such duties as general pai- may be assigned to him by the general passenger agent, and who shall act for him in his absence. 656 BY-LAWS OF THE N., C. & ST. L. RY. He shall, subject to the approval of the traffic manager, employer authorize the employment of all the necessary agents for Employment of . eliciting agent* the soliciting and procuring of passenger traffic, and all and clerks. necessary clerical force to properly transact the business of his department. All rates for the transportation of passengers shall, under the author- Fassenger ity f the president, be made by the traffic manager orgen- rates - eral passenger agent, and notice of the same shall be fur- nished to the auditor of receipts as soon as fixed. GENERAL PASSENGER AGENT, WESTERN & ATLANTIC RAILROAD. The general passenger agent shall also be aided by a general passen- ger agent of the Western & Atlantic Railroad, with office at ger agent, w. & Atlanta, Ga., who shall perform such duties in connection A. General passen- r agent, W. & with the passenger business of the company as may from time to time be assigned to him. GENERAL BAGGAGE AGENT. The general baggage agent shall be under the supervision of the gen- eral passenger agent, and shall be charged with making Duties of gen- . . eral baggage arrangements and rates for receiving, checking, and billing agent- baggage, and shall examine all claims for loss of or dam- age to baggage. SUPPLY DEPARTMENT. PURCHASING AGENT. Duties of pur- The purchasing agent shall purchase all articles for use chasing agent. j n everv department of the company, under such general directions as the president may from time to time give, but only on the written requisition of an officer duly authorized to make the same. All purchases for use in the operating department shall be made on the written requisition of the general manager, or such Purchases for ^ transportation other officer in said department as he may authorize, in writ- department, ing; all purchases for use in other departments shall be made on the written requisition of such officer as the president may, in writing, designate. The purchasing agent shall negotiate the sale of old property and material belonging to the company. In order that he may property and be fully advised as to the material it is deemed advisable to dispose of, the general manager shall cause to be made to him each month a complete report of same. He shall report all sales of such property and material to the comptroller for proper entry in the company's books. Accounts shall be opened by the accounting department for each Accounts to be division under the following heads: couStfngd"" store Stock Stores and supplies carried in stock, partment. Stationery Stock Stationery carried in stock. Shop Stock All stores, supplies, and material for shops. Road Stock Rails, fastenings, ties, ballast, and lumber. GENERAL POWERS OF THE N., C. 7 Fuel Stock Coal and wood. To which shall be charged all purchases made on account thereof, from vouchers properly approved by the purchasing agent and counter- signed by the auditor of disbursements, and, when approved by the president, shall be returned for payment at the time specified for other disbursements. The details of accounts between the purchasing agent and the oper- ating and other departments of the company for supplies Account* b- furnished them, shall be kept and returns made thereof at tween purch**- such times and in such manner as the comptroller shall di- different de- rect. partment*. The purchasing agent shall have authority to employ, subject to the approval of the president, such clerks to aid him in the du- Nomination of ties of the office as a proper economy may require, for the clerk*, faithful performance of whose duties he shall be responsible to the com- pany. He shall be aided by a general storekeeper, who shall perform such duties as may be assigned to him by the purchasing agent, . and who shall act for him in his absence. He shall act general under the supervision of the president. torekeeper. ACCOUNTING DEPARTMENT. COMPTROLLER. The comptroller shall have the direct charge of all the books and accounts of the company, and shall see and know that the Duties of system for keeping the same is fully enforced and main- comptroller, taiaed. No change shall be made in the forms and blanks relating to receipts and disbursements now in use on the several divisions of _ Forms and the company's lines, without the written consent of the blank* to be comptroller. He shall appoint, with the approval of the president, all the officers and their assistants in his department, and it shall be his duty to know that all bonds required by the regulations of the company B nd* of officer* are given. All bonds for the faithful performance of the and employe*, duties of officers, agents, and employes shall, upon approval of the general counsel, be transmitted to the custody of the comptroller. He shall be aided by an assistant comptroller, who shall Duties of perform such duties as may be assigned to him by the a**i*tant comptroller, and shall act for him in his absence. The comptroller shall also be aided by an auditor of receipts and an auditor of disbursements. AUDITOR OF RECEIPTS. The auditor of receipts shall have immediate charge of all accounts relating to earnings of the company. He shall report to Dutie* of the comptroller all deviations from the system of accounts auditor of prescribed for the agents in the employ of the company. 42 658 BY-LAWS OF THE N. , C. & ST. L. RY. Examination He shall, under the supervision of the comptroller, cause accounts. an examination of the accounts of agents to be made as Assistant often as may be necessary. He shall be aided by an as- receVptf sistant auditor of receipts, who shall act for him in his absence, and perform such duties as may be assigned him. AUDITOR OF DISBURSEMENTS. The auditor of disbursements shall have immediate Duties of auditor of dis- charge of all accounts relating to disbursements of the nts ' company. It shall be his duty to examine all pay rolls and Examination vouchers before payment, and see that they are returned toucher's 1 * in due form > and that the same are distributed to their Auditing bills proper accounts. He shall not audit any bill or claim unless and claims. jt be approved by the proper officer. All vouchers of every nature shall be countersigned by him or by the assistant auditor of disbursements before being paid. He system of shall report to the comptroller all deviations from the sys- tem of accounts prescribed for the disbursements of the auditor "of dis- company. He shall be aided by an assistant auditor of dis- bursements, bursements, who shall act for him in his absence, and per- form such duties as may be assigned him. The expenses incident to conducting the business of the company shall be kept under the following general heads, and shall Heads under , - -j j i .. which expenses be subdivided respectively into accounts as required by the shall be kept. regulations prescribed by the comptroller, subject to the approval of the president or board of directors, viz.: Maintenance of way. Maintenance of equipment. Conducting transportation. General expenses. Construction. All cases of defalcation, or any want of promptness or obedience in carrying out instructions on the part of any officer or agent Reports of de- j n m aking his returns to this department, or otherwise, falcation, want of promptness, shall be immediately reported by the proper auditor to the troiierl comp comptroller, and such steps shall be taken as he may order, or the necessity of the case may seem to require, and if the delinquent be under bond to the company, his sureties shall be informed through the comptroller of the known facts in the case Reports of de- falcations to so far as they are interested. All defalcations shall at the president. same time be reported by the comptroller to the president, and to the head of the department with which the defaulter is con- nected. Comptroller's The comptroller shall keep in his office a set of books book of record, containing a complete record of all the business transactions Treasurer's of the company. A daily report shall be made by the accounting de- treasurer to this department of all receipts and disburse- partment. ments, in order that proper entries may be made. GENERAL POWERS OF THE N., C. 4 ST. L. RY. 659 The treasurer and comptroller shall verify the cash balance, as per the general ledger, at least once in each month, by compar- verification of ing the same with the cash balance on hand and in the diff- ea*h balance, erent depositaries where the funds of the company are kept. The comptroller shall furnish the president, for the information of the board, as early as possible, with a detailed statement of Comptroller's the receipts and disbursements of the company for the pre- vious month. dent - He shall also render statements of the cash securities on hand to the finance committee, which committee shall verify the correctness of the same. He shall, as* early as practicable after the expiration of the fiscal year, present to the president a complete statement of the ^,, nua i rep ort accounts for the year, from which statement an annual re- to president. port shall be made to the stockholders, to be signed by the president. LAW DEPARTMENT. GENERAL COUNSEL. The general counsel shall have control of the legal business of the company, and shall keep himself advised of the character Duties of gen- and progress of legal proceedings and claims by and "J 1 proceedinM against the company, or in which it is interested, and keep and claim* in his office books in which shall be entered all suits or ac- pany. tions of every nature in which the company may be a party or inter- ested, with sufficient data to show the nature of the case and the pro- ceedings therein. Such books shall be open at all times to Book* of record. the inspection of the directors and president. He shall prepare opinions on any subject that may be referred to him by the president or board, supervise the preparation of all contracts to be executed by p reparat j on O f the company when referred to him for that purpose, and contract*, perform such other duties as may be assigned to him. All bonds to be executed by the company shall be submitted to and ap- Bond* to be exe- , , / . . .. cuted by corn- proved by him before execution. pany. He shall represent the company, or see that it is represented by local attorneys, in all legal proceedings by or against it, or p rotect j on O f affecting its interest, and he shall, whenever advised of company in case of acci- any accident, claim or liability, take, or cause to be taken, dent claim, or immediate measures to investigate the facts, and ascertain h * blht >'- the legal position of the company, and shall in each case promptly do what may be required for the protection of the interests of the company. He shall also examine and adjust all assessments and A**et*menu, correct and adjust all bills for taxes. taxe*,tc. He shall also examine all bonds of agents and other officers and em- ployes, and agreements for sidings, etc., that may be re- Bond* of ferred to him for that purpose by any officer of the com- * nU - pany. He shall have charge of all conveyances, examination and perfection 660 BY-LAWS OF THE N., C. & ST. L. RY. of titles to the company's property and preparation of all other papers Preparation necessary in conducting the legal business of the company, and execution All deeds, mortgages, leases, releases and documents re- bonds, releases, lating to real estate, official bonds, and all bonds required gages'; dcu-' bjr the re g" lation s to be jfiven by officers, employes, and ments, bonds others, shall be prepared and executed under the direction and employes, of the general counsel, and all such documents, certified proceedings of condemnation, contracts, and other docu- ments, relating to real estate, abstracts of title, and certificates of search, shall, when executed, and recorded, be forwarded to him for examination before being filed among the records of the company. He shall have power to appoint local attorneys in the several counties through which the company's lines of road run. or in such Appointment . of local attor- groups of counties as he may deem best, with power to euT'forTaw' assign any local attorney to special duties in a county other department. than that in which he is regularly appointed; and he shall . have power to employ a sufficient number of clerks for the execution of the clerical duties of the law department, and. with the approval of the ^president, such agents for special duties as he may deem necessary. Upon the recommendation of the local attorney, acquainted with the facts, stating in writing his reasons for the recommenda- Adjustment of ,,111 claims by gen- tion, the general counsel shall have power to adjust and eral counsel. compromise all claims against the company for damages growing out of the operation of its road, either before or after litigation has commenced. ASSISTANT GENERAL COUNSEL. The general counsel may, with the approval of the president, ap- point an assistant general counsel, who shall act as aid to the general Assistant een- counsel, and such duties as are herein assigned, and powers eral counsel. given to, the general counsel may also be performed and exercised by the assistant general counsel. DIVISION COUNSEL W. & A. B. B. The general counsel shall, with the approval of the president, appoint division counsel for the Western & Atlantic Railroad, and such duties as are herein assigned, and powers given to, the general Division coun- sel W. & A. counsel, may be performed and exercised by the division counsel in the State of Georgia, under the direction of the general counsel. LOCAL ATTORNEYS. The local attorneys shall attend to all such legal busines of the com- pany as may be assigned them by the general counsel. They shall promptly report to him all legal proceedings in which the company is Duties of interested, stating the nature of the claim, and the defense local attorneys, thereto, and shall, from time to time, advise him of all pro- ceedings connected therewith. They shall also report to him every transaction of importance connected with the legal business and affect- ing the interests of the company in their respective districts. GENERAL POWERS OF THE N., C. A ST. L. RY. 661 APPROVAL OF LAW DEPARTMENT VOUCHERS. All vouchers for disbursements growing out of the law department shall be approved by the local attorney in whose district Appro**! of . . law department they may originate, and by the general counsel. voucher*. Bills for judgment, court costs, and attendance of witnesses shall be certified by the local attorney in charge of the cases in Vouchers for which they shall be incurred, and forwarded to the general Jj'l^' j^JJ? counsel, who, or the assistant general counsel, will approve nienu, etc. and forward them to the auditor of disbursements. REAL ESTATE DEPARTMENT. REAL ESTATE AGENT. The real estate agent shall, subject to the supervision of the pres- ident, have control of the real estate belonging to the ***_. . j . ,. i j Duties of real company. He shall have custody of the original maps and estate agent. profiles of the road, and plans of the real estate owned or M pro flles held by this company and by the companies the roads of descriptive list* of property, which are leased and controlled by this company. He and real estate shall prepare and keep in his office, for the inspection of recordt> the proper officers, or any member of the board, descriptive lists of all real estate owned by this company and by companies whose roads are leased and controlled by this company; and also statements of the revenues received therefrom. He shall examine, approve, and submit to the general counsel for approval, all conveyances and leases of real estate (to, Conveyances from, or by this company) before the same are executed, and leases of and shall record them in his office before depositing them r ** 1 eiUUi with the secretary. Under the advice of the general counsel, or assist- ant general counsel, he shall value and give lists of the _ Taxation lists, company s property which may be subject to taxation, to the proper officers, assessors, or boards of assessors, by whatever name designated, of the several states in which the property may be situated. He shall examine all assessments of real estate for tax- Assessments ation. and shall scrutinize and approve all tax bills before * nd u * blUti submitting them to the general counsel. He shall act in concert with the general counsel and local attorneys in securing proper valuations. He shall approve, before pavment, all bills due for rent Bills for rent of property leased to the company, and notify the corap- of property troller of all rents upon property owned bv the company, and keep a record of the same. He shall furnish to the other departments of the company's service such abstracts or copies of papers and plans, and such Abstracts and other information relating to real estate as may from time P iM of pp- to time be required for the proper conduct of the business of the com- pany; and report to the general manager all persons who are in arrears for rent of company's property; and perform such other duties as the president or board may from time to time assign to him. 662 BY-LAWS OF THE N., C. & ST. L. RY. The president may, at his discretion, require the duties of the real may f pMfora er estate agent, as herein defined, to be performed by the duties of real chief engineer. estate agent. GENERAL REGULATIONS. 1. All the officers named in this organization, except those otherwise Mode of appoint- provided for, shall be nominated to the president for his ap- ing officers, proval, by the heads of the departments in which they are to serve. 2. The station agents of the company shall be subject to the super- Reeulations vision and direction of the general manager, whose regula- governing tions shall be enforced through the respective superin- freight, ticket, and station tendents. Those whose compensation consists of a nxed agents. salary shall devote their whole time and attention to the interests of the company, unless expressly exempted therefrom by the president or general manager. They shall take charge of the property of the company at their stations, and perform such other duties con- nected with the business of the company as may be prescribed for them not inconsistent with a proper discharge of their duties as agents. 3. All officers, agents, conductors, and other employes of the company who may, by virtue of their office, or in the performance of Accounts and . reports of their duty, receive money on account of the company, shall, when required, give bond for the faithful discharge of their duties, in such sums as shall be designated by the president. 4. Any person making application for the issuance of duplicate checks, vouchers, or other obligations of the company, in lieu of the originals Bonds for dupli- alleged to De l st . stolen, or destroyed, shall give bond, with cated checks, security, in double the amount or value involved, to indem- vouchers, or obligations of nify the company against the presentation or use of the ompany. originals, but no duplicate shall be issued unless authorized by the president; and all applications for such duplicates shall be made in writing, describing the document, and be signed and sworn to by the applicant. 5. All bonds to secure the company against loss by reason of the im- proper acts, frauds, or other violation of duty on the part of any officer or agent of the company, from whom it requires bond, shall Bonds to se- J cure company be given by some guarantee or incorporated company, said lent acts oYoffi- company to be approved by the board, or personal bonds cers or em- with good and sufficient sureties may be accepted at the option of the board. In case the guarantee or incorporated company does not issue bonds in the amount required, then, for the ad- ditional amount of the bond required, said officer or agent shall give his Personal bonds personal bond, with two or more sureties, who shall be securities, etc. owners of property aggregating in value, without encum- brance, the amount of the bond, or for such additional amount give se- curity in the form of mortgage on real estate, or deposit of bonds or stocks, subject to the approval of the board. 6. It shall be the duty of the officer appointing officers, agents, con- GENERAL POWERS OF THE N. , C. A ST. L. RY. 663 due tors, or other employes, who are required to give bond, Dut j et O f ao- to immediately notify the comptroller, through the proper pointing officer* channel, and give such information as will enable him to requirinrto have the necessary bond prepared. ** Te bon 7. All payments to the regular employes of the company shall be by pay roll, to which the signatures of the payees must be at- p ayBienUto tached in all cases where they remain in service until the regular em- ployes by pay day of payment. The crosses or marks of those who are roll ; witness to incapable of writing their names must be duly witnessed. I * n * ( 8. For purchases made by the purchasing agent, and for all expenses other than those contracted for labor or services, vouchers shall be pre- pared and approved by the heads of the departments by Preparation of whose direction such purchases or expenses shall have been p2rchae/ U- made; and the vouchers, when so certified and approved, bor, etc. shall be forwarded to the auditor of disbursements, who shall examine the correctness of the same, see that the account charged therewith is the proper one, audit and affix his countersignature thereto, and submit them to the president for approval. All payments of employes on pay rolls shall in like manner be certi- fied by the heads of departments, and shall be sent to the _ Pay roll and auditor of disbursements, who shall examine the correct- method of pay- ness of the same and obtain the approval of the comptroller m or assistant comptroller thereto, after which the auditor of disburse- ments shall audit and countersign the same. 9. All instructions emanating from the board or presi- instructions dent in regard to the business of any of the departments ** d " *^ rou * h shall be given through the head thereof. department*. 10. The president shall fix the compensation of all the officers and agents in the several departments, and the wages of other employes shall be fixed by the heads of the depart- officers and merits to which they respectively belong, subject to the ifesiden?' approval of the president, and no new appointment or in- crease of salary shall be made unless authorized by the president or general manager, on form 983, which must accompany the roll on which such employe is returned. In case of a appointments vacancy in any office, each head of a department may make ^cancy*/ acting or temporary appointments, which shall be com- municated forthwith, in writing, to the president, which temporary ap- pointment may be valid until permanent appointments are made. 11. The appointment of all other employes on the line of the road not herein provided for, and the defining of their poweis and Appointment duties, is hereby vested in the general manager, or in the officers to whom he is authorized to delegate this power. The heads of the departments will be held responsible to Heads of the board for the good conduct of all the employes in their re*ponTiUe*for respective departments, and shall have the power of dis- employe*, missal when they think it for the interest of the company, when so re- quired. 664 BY-LAWS OF THE N. , C. & ST. L. RY. 13. Each head of a department shall make to the president, for the information of the board, a complete annual report of the Annual report by heads of affairs under his charge during- the year, and shall report departments. a i so to the president all matters of importance or interest. 13. Each officer, agent, and employe of the company in each depart- ment will be required to give his whole time and attention to the duties assigned to him, and use every exertion to secure to the company the best results in its operations, by increasing 1 the traffic of its General sum- mary of duties railroads, and by conducting its business in the most agents ei and economical and efficient manner; and whenever any cir- empioyes. cumstance may come to his notice that is deemed to be ad- vantageous or detrimental to the interests of the company, whether in his own department or otherwise, he shall immediately report the same to the head of his department for report, if deemed proper, by that officer to the general manager or to the president. 14. In case of any disagreement between the heads of departments as to the rights and duties of each, or in case either shall Disagreements between heads think that the requisitions made by the other on his de- departments, partment are unreasonable, or not for the interest of the company, such matters in dispute shall be referred to the president, whose decision shall be final. Intemperance, 15> ^ P erson addicted to the use of intoxicating drinks, vice, profanity, O r who is vicious, profane, or uncivil in his deportment, or incivility of employes not shall be employed or continued in the service of the com- permitted. paQy 16. Free tickets shall be issued only by the president, general man- Issue of ager, and such other officers as the president may author- free tickets. j ze Division superintendents may pass their immediate employes when in discharge of their duties. All conductors and engine- men are strictly prohibited from allowing any free travel on the road except as authorized by the rules governing free travel and passes. 17. No officer or employe of the company shall be absent from the Absence from duties of his post without the consent of the president or dutv> the head of the department to which he belongs. 18. Copies of all circulars or general orders issued by the head of any Copies and department shall be sent to the heads of each of the other general orders, departments, and also to the president and secretary. GENERAL POWERS OF THE N., C. 7 whether it is applicable to any corporations but those chartered under the general law, but by referring to the act itself [acts Tenn. 1883, ch. 163] it will be found that it expressly pro- vides that ' ' any corporation heretofore chartered by an act of the general assembly, which may desire to change its name, increase its capital stock, etc.," shall have the right to do so in the manner as set out above. This act, therefore, would also apply to the charter of the Nashville & Chattanooga Rail- road, although it was chartered by a special act of the' legisla- ture. Again, by the acts of Tennessee, 1881, ch. 9, sec. 1, it was provided that "railroad companies existing under the laws of this state, or of this state and any other state or states, whose original charter of incorporation was granted by this state, are empowered to issue bonds and secure the payment thereof by mortgage upon their franchises and property in an}' state, or upon any part of such franchises and property, or to issue in- come or debenture bonds, and such guaranteed preferred and common stock as may be determined upon by the stockholders; Provided, The same be approved by the votes of the holders of three-fourths in amount of the entire stock of said company at a regular or called meeting of the stockholders of said com- pany; and that sixty days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper of the time, place, and purpose of the meeting." Code Tenn. (M. & V.), 1277; Shannon's Code, 1542. This act does not repeal act of 1877, ch. 72. 4 Pickle (Tenn.), 140. Under the above acts the capital stock of the company was increased to $10,000,000 at the annual meeting of stockholders June 30, 1891. Section 1901 of the code of Tenn. (M. & V.), (Shannon's code, 2424), provides that "The board of directors may, at any time, increase the capital stock, if the necessities of the corporation, in their estimation, require said increase." This provision, however, only relates to roads chartered under the general law (acts Tenn., 1875, ch. 142), and hence does not apply to this railway. See, also, acts Tenn., 1897, p. 271. 668 CAPITAL STOCK. A better way, however, if it can now be done, which is doubtful under our new constitution of 1870, to increase the capital stock would be to petition the legislature for an amend- ment to the charter for that purpose as provided for in section 34 of the charter. This would be the safest course in all cases if it could be pursued. For reason see "Charter," sub-head "Amendments to." Surplus on hand is not capital stock. 11 Pickle (Tenn.), 223, 635. Who to vote on ; what vote necessary. it will be observed that, should either of the methods as set out above be followed, the only result accomplished would be to give the corporation authority to increase its capital stock. It would not be in- creased by virtue of the amendment. The stockholders would have to vote upon the question of "increasing" or "not in- creasing ' ' the capital stock, under the authority thus con- ferred. The board of directors could not do it. 18 Wall., 233 [21: 902]; 13 N. Y., 599; 26 Ohio St., 673; 30 Conn., 231; 34 N. Y., 30; 54 Pa, St., 270; 1 Lea (Tenn), 408; 105 U. S., 143. What VOte necessary. No specified majority is pointed out in the first act above mentioned, and hence under it a majority by implication would only be necessary. 5 Sneed (Tenn), 566-568. But as the second act above set out (Acts 1881, ch. 9) requires the approval of the holders of three-fourths of the entire stock of said company at a regular or called meeting, prudence should require that this act, in regard to the necessary vote, should be followed, and the courts would doubtless so hold. At what meeting to be authorized. The provisions of the Acts of Tennessee 1881, ch. 9, should be followed which pro- vides that the vote be taken at "a regular or called meeting " of the stockholders, and that sixty days' notice be given in a Memphis, Knoxville and Nashville daily newspaper of the time, place and purpose of the meeting. See Code Tenn. (M. &V.) r 1277 [Shannon's Code, 1542.] Stock so increased may be sold at discount. An active cor- poration may, for the purpose of paying its debts and obtain- ing money for the successful prosecution of its business, "issue GENERAL TOWERS OF THE N. , C. & ST. L. RY. new stock and sell it for the best price that can l>e obtained. 139 U. 8., 417, [35: 229.] Preferred and guaranteed stock; how issued. Preferred stock can never be issued unless the authority to issue the same is given by statute, or in the charter, or by agreement between all parties interested. Thompson on Corp., sec. 2244. There is nothing in the charter of the Nashville & Chatta- nooga Railroad or amendments thereto authorizing the issue of preferred stock, but under the general law of Tennessee "all railroad companies existing under the laws of this state, or of this state and any other state or states, whose original- charter of incorporation was granted by this state, are empowered to issue such guaranteed, preferred and common stock as may lie determined upon by the stockholders; -Provided, The same be approved by the votes of the holders of three-fourths in amount of the entire stock of said company at a regular or called meet- ing of the stockholders of said company; and that sixty days' notice be given in a Memphis, Knoxville and Nashville daily newspaper of the time, place and purpose of the meeting/' Code Tenn. (M. & V.), 1277; Acts Tenn. 1881, ch. 9, sec. 1 [Shannon's Code, 1542.] The supreme court has decided that this act does not repeal the special limitations imposed by acts of Tenn. 1877, ch. 72, upon the power of con- solidated railway companies to mortgage. 4 Pickle (Tenn.), 140. StOCk dividends. [See l Dividends. ' ' ] Value of Shares; how increased. The original value of each share of stock was twenty-five dollars. [Charter, sec. 2.] No power is given the railway in its charter, or amend- ments thereto, to increase the value of the shares, but under the general law, by acts of Tenn., 1889, ch. 102, it was pro- vided "that any corporation hereafter created, or hereafter to be created, under the laws of the state of Tennessee, may make a share of stock one hundred dollars, or less, and issue certificates therefor, and that any such corporation which has heretofore issued shares of stock for twenty-five dollars may call in the same, and combine four such shares and issue a certificate for one hundred dollars in lieu.'' Acts. Tenn., 1889, 670 CAPITAL STOCK. ch. 102. Under this act the railway issued new certificates, for SI 00 each, as provided above, in place of the original, as per resolution, adopted May 30, 1889. Shares of stock; how to be transferred. The charter of the railway company provides that "the stock of said company may be transferred in such manner and form as may be di- rected by the by-laws of said corporation. 1 ' Charter, sec. 16, p. 10 herein. The company subsequently enacted the follow- ing by-laws upon the subject: " Certificates of stock shall be issued to the stockkolders and transfers of them made when required." See p. 648, herein. "The secretary shall see that all certificates of stock are countersigned by the transfer agent and the register, and that no transfers are made except on the stockholders signing in person or by attorney." See p. 650, herein. ' ' No transfer shall be allowed without the surrender of the certificate transferred, and such certificate shall be canceled and filed." See p. 650, herein. "No transfer of stock shall be made for ten days next pre- ceding any meeting of the stockholders, nor for ten days prior to the payment of a dividend." See p. 650, herein. ". . . No certificate of stock hereafter issued in Nash- ville shall be valid or binding on this company unless regis- tered and countersigned before issue by the said register of transfers in Nashville; and no certificate of stock issued in New York shall be valid or binding on this company unless regis- tered and countersigned before issue by the said register of transfers in New York, and no certificate of stock shall be ac- cepted for transfer and cancellation unless so registered," etc. See p. 651, herein. Lost Certificates; hOW Supplied. "Any person or persons claiming a certificate or evidence of stock, to be issued in lieu of one lost or destroyed, shall advertise the same in one or more newspapers in Nashville, Tenn., twice a week for four weeks, giving the number and date of the certificate lost, and the num- ber of shares it represented. The party shall then make appli- cation to the board of directors, describing the certificate by (iKXEKAL I'OWEHfl OF THE N., C. A ST. L. RY. 671 its number, date, and amount, and give full details as to the manner of loss, verified by oath or affirmation, and accompanied by a copy of the advertisement, and also a bond of indemnity, with satisfactory security, in at least double the amount of the par value of the shares represented by the certificate, against any loss or damage that may arise from the issuing of a new certificate, whereupon the board may direct the issue of a new certificate of the same tenor with the one alleged to have l>een lost or destroyed, specifying upon the face of the certificate that it is in lieu thereof and a duplicate." See p. 648, herein. Liability of company in regard to transfers. Rules requir- ing the transfer of stock on the books of the company are made solely for the benefit of the company. They do not affect the title of the transferee. His title is perfect as between himself and the transferer, and the transferee is entitled, upon presen- tation to the corporation of his certificate, to have himself reg- istered on its books as the real owner. This is so whether the transfer is made by absolute sale or by way of pledge, and whether it is written or not. 12 Pick. (Tenn.), 253; 91 Tenn., 221; 3 Lea, 25; 7 Lea, 1; 85 Tenn., 683; 86 Tenn., 252; 13 Lea, 333. See, also, 7 Pick. (Tenn.), 221 The company, however, is benefited by such a by-law, iu knowing who is entitled to vote, and to whom to pay dividends. Same. If the transfer is not made on the books of the corpo - ration when assignment is made, and company, without notice, mails a check for dividends to the party whose name appears on the books as the lawful holder, the company is protected. So, until transfer is made, the transferer may vote. Thompson on Corp., sec. 732, 3872. The company will be protected in transferring shares on books to assignee, even though assignor is an infant, if stock appears in his name, and he does not avoid before transfer on books. 7 Pick. (Tenn.), 223. The company will be compelled to reinstate stockholder whose shares have been wrongfully transferred on the books. 9 Pick. (Tenn.), 482. But as to stock affected with trusts, see 7 Pick. (Tenn.), 222. A corporation whose stock is transferable only on the books 672 CAPITAL STOCK. becomes custodian of the shares, and trustee for the share- holders, and must exercise due and proper diligence to protect all parties interested from unauthorized transfers; and, there- fore, if such corporation, with notice of the rights of a cestui que trust, aids the trustee in converting to his own use, by transferring certificate, it is liable. 85 Tenn. , 683. A by-law imposing restraints upon the alienation of stock is void. 3 Lea, 6. See, also, 17 Pick. (Tenn.), 35-i. Suits for conversion of stock barred in three years. 11 Pick. (Tenn.), p. 396. DUTY OF COMPANY TO INVESTIGATE BEFORE TRANSFERRING SHARES IN CERTAIN CASES AND LIABILITY FOR FAILURE. 1. Where shares in name of trustee, who to assign. If the shares appear upon the books of the company in the name of any one as trustee, this puts the company on notice and in- quiry as to the power of the trustee to sell, and no transfer should be made until his power to sell as trustee is shown, otherwise the company will be liable. 91 Tenn., 236; Lowell on Transfer of Stocks, 99, 100, 138, 149, 150, 153; 85 Tenn., 683. 2. Where shares are held in trust, generally. Where the assignment is made by the person appearing on the books to be the absolute owner, but the assignment is a breach of trust, then the liability of the company to the cestui que trust for transferring such shares depends not only upon its being shown that the corporation had either actual or constructive notice of the breach of trust, but upon the further fact that its act in recognizing the assignment and making the transfer operated to aid the breach of trust and contributed directly to the loss of the stock by the cestui que trust. 7 Pick. (Tenn.), 233; Lowell on Transfer of Stocks, 153. Any fact that would put the company on notice that the stock was held in trust should require an investigation before transferring. Thus, where stock is issued to one as devisee under and subject to the GENERAL POWERS OF THE N., C. 4 ST. L. RY. 673 provisions of a will, it is chargeable with notice of the contents of that will, and of the trusts imposed thereby, in all subse- quent dealings with such shares. 85 Tenn., 683, 33. 3. Where stock is assigned by other than the one to whom it was issued. If the stock is assigned by one, other than the person to whom it was issued, it devolves upon the company, when called upon to transfer the shares and issue a new certifi- cate, to inquire and determine the power of the assignor to assign. 91 Tenn., 230; Cook on Stock and Stockholders, 320. 4. Where stock assigned by administrator. if the assign- ment is made by a person as "administrator/' and company makes no inquiry, it assumes the risk only of the assignor having the power to assign. If, however, it is signed, "ad- ministrator, cum testamento annexo,^ then the company would be put on notice of a will, and should examine to see what trusts or limitations are placed thereon. 7 Pick. (Tenn.), 229, 230. 5. Where assignment is forged, or by void decree. If a corporation transfer shares upon a forged assignment and power of attorney, or upon the authority of one wrongfully assuming to be the agent of the owner, or upon a void decree or judgment, its act would be a nullity, in so far as it was thereby sought to affect the rights or status of the true owner. Such owner would remain a shareholder, regardless of the ille- gal cancellation of the evidence of his right, and notwithstand- ing the issuance of a new certificate to the transferee. His right would be no more affected than if his certificate had been accidentally destroyed. A court of equity would compel the cori>oration to recognize him as a shareholder by the issuance of a new certificate and compel an accounting for dividends wrongfully paid over to the transferee. 91 Tenn., 233; 97 U. S., 369; 127 U. S., 614; 96 U. S., 193; 7 N. Y., 274; 125 Mass., 138; 44 Md., 551. 6. Where shares in name of partners. A partner may sell and transfer partnership stock. 10 Mass., 476; Elliott on R. R., sec. 93. But, if it is in the name of two or more persons, as joint owners, one of them cannot transfer the interest of the others. 57 Barb. (N.Y.), 127; Elliott on R. R., sec. 93. 43 674 CAPITAL STOCK. 7. Where shares in name of infants. The transfer of shares by a minor is voidable, not void. It is one of those acts which may or may not be to the interest of the minor. To say that every sale of shares by a minor was void would be disastrous to them in most cases. It is like the sale of lands or any other sort of property by a minor. The rule in this state, therefore, is that an assignment of stock by a minor is good until avoided, and a corporation will be protected if it makes the transfer before notice of avoidance by the minor. In fact our courts hold that a corporation has no right to re- fuse to make the transfer if an avoidance has not been made at date of transfer. 7 Pickle (Tenn.), 221-239; 10 Am. & Eng. Enc. L., 635: Cook on Stocks, sees. 318, 427. May subscribe for or purchase stock, etc., in other compa- nies. [In Tennessee.] "It shall be lawful for any railroad company created by and existing under the laws of this state, and for any lessees of a railroad of such company, from time to time, to subscribe for or purchase the stock and bonds, or either, of any other railroad company or companies chartered by or of which the road or roads is or are authorized to extend into this state, when their roads shall be directly, or by means of intervening railroads, connected with each other," etc. Code Tenn. (M. & V.), 1262; Shannon's code, 1520. But for this enabling statute the railway could not purchase such stock, as there is no authority conferred in its charter to do so. The authority here ' conferred, moreover, is not in the nature of a contract, and can be repealed by any subsequent legislature, though such repeal would not affect purchases pre- viously made thereunder. The unauthorized purchase by one corporation of the shares of another is ultra vires and void. No suit can be maintained by either party in furtherance or affirmance of such void contract, not even by a party who has fully executed the contract on his own part. Such illegal con- tract would create no estoppel upon either party. 131 U. S., 389; 139 U. S., 60; 8 Pick. (Tenn.). 115. [In Alabama.] Under the acts of Ala., 1898-99, p. 28, the Nashville, Chattanooga & St. Louis Railway has the power to GENERAL POWERS OF THE N., C. A ST. L. RY. 675 purchase, hold, and use any or all of the capital stock of any railroad company of Alabama with which it or its predecessor in interest connects either directly or by an intervening line. The courts of Alabama refuse to interfere with such purchases unless it is shown that the business interests of the two corpo- rations are antagonistic, and that the company owning the ma- jority of the stock is using it to the manifest disadvantage of the minority. 101 Ala., 607; 93 Ala., 610; 88 Ala., 630. [In Georgia.] The constitution of Georgia provides that "the general assembly of this state shall have no power to authorize any corporation to buy shares of stock in any other corporation in this state, or elsewhere, or to make any con-' tract or agreement whatever with any such corporation which may have the effect or be intended to have the effect to defeat or lessen competition in their respective businesses, or to en- courage monopoly, and all such contracts and agreements shall be illegal and void." Code Ga., 1895, 5800. By 3091 of same code it is provided that "the natural in- crease of the property belongs to the tenant for life. Any extraordinary accumulation of the corpus, such as issue of new stock upon the shares of an incorporated or joint stock com- pany, attaches to the corpus and goes with it to the remainder- man. Same, 3091. See 67 Ga., 284; 93 Ga., 678, 680. By section 2179 of the same code it is provided that "any railroad company incorporated under the provisions of this article shall have authority to sell, lease, assign or transfer its stock, property, and franchises to, or to consolidate the same with, those of any other railroad company incorporated under the laws of this or any bther state or of the United States, whose railroad within or without this state shall connect with or form a continuous line with the railroad of the company incorporated under this law, upon such terms as may be agreed upon; and conversely, and such corporation organized under the provis- ions of this article may purchase, lease, consolidate with, ab- sorb or merge into itself the stock, property and franchises of any other railroad company incorporated under the laws of this 676 CAPITAL STOCK. or any other state or the United States, whose railroad com- pany within or without this state shall connect with or form a continuous line or system with the railroad of such company incorporated under this law, upon such terms as may be agreed upon. Code Ga. 1895, 2179. Section 5799 of the same code provides that the general assembly shall not alter the charter of, nor pass any other gen- eral or special law for the benefit of said corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of the state constitution, etc. The section provided, however, that it should not apply to any amendment for the purpose of allowing any existing road to take stock in or aid in the building of any branch road. Code Ga. 1895, 5799. [In Kentucky.] Any corporation . . . may, unless prohibited by law, subscribe to the capital stock of any other railroad company organized under the law of this or any other state, with the assent of such company; and any company or- ganized under the laws of this or any other state may, unless prohibited by law, subscribe to the capital stock of any com- pany organized under this law, with the assent of such com- pany, and may make any agreement or arrangement, not in- consistent with law, with any other railroad company. 1. Parallel or competing lines. By section 201 of the constitution of Kentucky, it is prohibited to consolidate capital stock franchises or pool earnings with any parallel or competing line. Code Ky. 1894, g 201. Reduction Of Capital StOCk. A corporation has no power to reduce the amount of its capital stock by purchase and cancella- tion of its own shares. 88 Tenn., 476. Entire amount of stock may be transferred to one person without working a dissolution of corporation. 12 Pickle (Tenn.), 252. All stock personal property and subject to levy and sale. [In Tennessee.] The stock in all railroads chartered in Ten- nessee is personal property and subject to sale by execution. Code Tenn. (S.), 4762, see also 2066; M. & V., 3747. GENERAL POWERS OF THE N., C. ST. L. RY. 677 1. Stock may also be reached by attachment in equity under J 3500 of the code of Tenn. (S.), I 5260; (M. & V.) 4341. See. also, 1 Heis., 33; 5 Lea, 702; 1 Pickle, 194. 2. Stock of a foreign corporation doing business in this state, has its nit us in this state, and may be here attached for the debt as a nonresi- dent owner, although the certificate may be in his possession and be- yond the limits of the state at time of attachment. 1 Pickle (Tenn.;, 189. 3. The above section seems to apply to corporations chartered by spe- cial act only, from a reading of the original, though it is put in the code as applicable to all. 4. [In Alabama.] Stock is also personal property in Alabama. Code 1896, 1 1261. 5. [In Georgia.] It is also personal property in Georgia. Code 1895, $ 2165. When stock passes by transfer of certificate. See 12 Pick. (Tenn.), 253. Counties and cities may subscribe for stock in proposed railroads. [In Tennessee.] Counties and incorporated cities may subscribe for stock in or loan its credit to railroads under certain conditions. See code Tenn. (S.), 1542-1572. See, also, acts Tenn., 1887, ch. 3, as codified in code Tenn. (S.) as 1558 et sey., for additional method. See, also, 9 Pick. (Tenn.), 239, for discussion of same. CHAPTER LVI. CHARTER HOW AMENDED FRANCHISES OF WHAT MAY BE DISPOSED OF CHANCERY COURT AMENDMENTS TO GROUNDS OF FORFEITURE OF. When charter of Nashville, Chattanooga & St. Louis Rail- way granted, and status before the law. Charters are public laws, and need not be given in evidence where the corporation, though private, is created for public purposes. 2 Hum., 339; 5 Sneed, 347, 495; 11 Hum., 219; 7 Hum., 33; 3 Sneed, 87; 1 Cold., 625; 4 Pick., 140; 74 Ga., 509. In Alabama, where the corporation is not organized under the general law, its charter is a private act, of which the courts cannot take judicial notice, and in the chancery court it must 678 CHARTER, FRANCHISES, AMENDMENTS, ETC. be pleaded as well as proved, though atlaw it need not be pleaded. Code Ala., 1876, 3051. See, also, 55 Ala., 413; 58 Ala., 489. The charter of the Nashville & Chattanooga Railroad Com- pany, whose name has subsequently been changed to the Nash- ville, Chattanooga & St. Louis Railway, by decree of the chan- cery court at Nashville, Tenn., in minute book "X," p. 222, was chartered by the legislature of 1845-46, ch. 1, which was prior to the constitution of 1870. It has never been chartered in any other state. After the lease of the Paducah, Tennessee & Alabama Railroad (see p. 487 herein) by the Nashville, Chattanooga & St. Louis Railway, the secretary of state of Kentucky held that, under sec. 190 of the constitu- tion of that state, and under %% 570, 765 and 841 of the code of Kentucky, 1894, that the said road could not be legally operated until the charter of the Nashville, Chattanooga & St. Louis Railway, properly authenti- cated as therein provided for, should be filed with the secretary of state and railroad commissioners, and further file with the secretary of state its acceptance of the constitution of the state. In conformity to this holding, the board of directors of the Nashville, Chattanooga & St. Louis Railway, on January 21, 1899, accepted the constitution of Kentucky, and filed a copy of the same, with its charter, with the secretary of state of Kentucky, on February 25, 1899, and with the railroad commis- sion on the same day. HOW amended. The legislature in granting the charter did not reserve the right to modify, amend, or repeal the same, or any part thereof, but specifically enacted, in section 34 of said charter, that "This charter shall be amendable from time to time by the legislature, whenever the president and directors shall unanimously petition for amendments, specifying in the petition the nature of such amendments; and when such amendments shall be adopted by the legislature, and submitted to the direc- tory, and be accepted and adopted unanimously by the presi- dent and directors, they shall be obligatory on the stockholders, and not otherwise." Legislature cannot force amendments. As will be seen from this, it will require the consent of the president and directors before any future amendments can be made by the legislature to the charter. The legislature cannot thrust an amendment upon it or enforce the abrogation of any right directly conferred. Every section which was legal in itself at the time of its enactment, and which confers a specific GENERAL POWERS OF THE N. , C. A ST. L. RV. 679 right to build and operate a railroad, together with all fran- chises, privileges, or licenses in the nature of property, and not merely personal privileges, was in the nature of a con- tract, and, as such, is under the protection of the constitution of the United States, and is irrevocable and inviolable by any act of the legislature, or even a constitutional convention of the state, without the consent of the corporation. United States authorities. 80 U. S., 568 (13 Wall., 264); 83 U. S., 326 (16 Wall., 244); 87 U. S., 282 (20 Wall., 36); 4 Wheaton U. S., 468; 117 U. S., 129. State authorities. 9 Bax., 442; 3 Cold., 88, 496; 1 Sneed, 114; 9 Yer., 488; 11 Lea, 336; 3 Hum., 305; 1 Heis., 284; 3 Tenn. Ch., 465, 13 Lea, 400; 2 Pick., 614; 3 Pick., 155; 1 Head, 81; 3 Sneed, 629. Amendments accepted and adopted are valid, though not petitioned for. An amendment, however, accepted and adopted by the president and directors, unanimously, will be valid, although not recommended by the unanimous petition of the president and directors, that being merely directory. 8 Bax., 108. See also case of Rogers v. Nashville, Chattanooga <& St. Louis JZailway. It is always prudent, however, to petition specially for amendments, as provided above, if it can now be done, since the constitution of 1870, which is doubtful, as many acts of the legislature offering them are coupled with a clause or con- dition that, if accepted, would render the company liable to taxation on its capital stock that is now exempt forever, or render its charter liable to be amended without its consent, as at present. If offered amendments, therefore, are ever ac- cepted, care should be taken to see that no such conditions accompany them. No amendments adopted so far render the company liable. The charters of the various roads now owned or controlled by the Nashville, Chattanooga & St. Louis Railway have also clauses upon this subject, which can be found in this compila- tion under their respective headings and charters. Legislature may pass amendments and enabling acts enlarging powers, When. It is generally conceded that if the 680 CHARTER, FRANCHISES, AMENDMENTS, ETC. amendment offered by the legislature enlarges the powers originally granted without objectionable provisos, conditions, etc., that it can be made. Thus by conferring upon a corpo- ration the power to sell, for its own benefit, its real estate, although the charter forbids such alienation. 57 Pa. St., 213; 29 Ala., 651; 13 Lea (Tenn.), 401. "Where the legislature has conferred enlarged powers upon the managers of a corpo- ration, with the assent of a majority of the stockholders, a single stockholder cannot, it has been held, by withholding his assent, hinder the execution of such powers. 54 Pa. St., 270. But the legislature cannot pass enabling acts which operate to interfere with rights already vested." Thomp. on Corp., sec. 5396. "Grants beneficial to a corporation will be presumed to have been accepted by it, when nothing appears to the con- trary, the same as grants to natural persons. 47 Maine, 34; 7 Pick., 344; 17 Maine, 442. If in such case the act by which the benefit is conferred do not expressly require a formal acceptance, then none such is necessary to enable a cor- poration to avail itself thereof. 47 Maine, 34; 17 Maine, 442; More especially so if the corporation proceeds to do the acts or exercise the powers which are contemplated by the grant, or in any manner avails itself thereof." 12 Wheat. (U. S.}. 64; 10 Bush, 529; 47 Maine, 34; 66 Mo., 228; cited by Rorer on Railroads, 19. See also 8 Pick., 168. Such amendments and enabling acts, however, not pro- tected as contracts, and can be repealed at pleasure. AS has heretofore been explained, all franchises, privileges or licenses in the nature of property, and not merely personal privileges, contained in the original charter, are in the nature of contracts and cannot be impaired by subsequent legislation. There is a distinction, however, between such franchises and those granted after incorporation by way of mere gratuity. Those contained in the charter and accepted are protected as contracts, the latter are not. Thus it has been held that an amendment to a charter which merely conferred a new right, GENERAL POWERS OF THE N., C. A ST. L. RY. 681 or enlarged an old one, without imposing any additional bur- den, is a mere license or promise by the state which the legis- lature may revoke at pleasure. 102 Pa. St., 123. Of this kind also are all enabling acts. For instance, there is no authority conferred in the charter of the Nashville, Chatta- nooga & St. Louis Railway, or amendments thereto, author- izing it to mortgage its road, etc. The legislature has passed enabling acts, which are now a part of the general law of the state, permitting all railways to mortgage their property. Such acts, however, are merely gratuitous and may be revoked at pleasure, though, of course, in such an event no mortgage executed in conformity to the present law would be affected thereby. See Thomp. on Corp., 5435. What are the present franchises of the Nashville, Chat- tanooga & St. Louis Railway. The original charter of the Nashville & Chattanooga Railroad Company was granted by the acts of Tenn. of 1845-6, ch. 1. Its name was subsequently changed to the Nashville, Chattanooga & St. Louis Railway. May 30, 1873, by decree of the chancery court at Nashville, Tenn., under the acts of 1870-1, ch. 54, p. 63, as per minute book "X," p. 222-224, of said court. It was never chartered in any other state. Subsequent to its incorporation many acts amendatory thereof have been passed. Not only this, but many independent, branch and lateral roads have been added to its original line by purchase, lease, construction or otherwise. Many of these roads had charters of their own, conveying various franchises, privileges, rights and immunities. It will be important to determine how many of these passed with the respective conveyances, in order to ascertain the present fran- chises of the Nashville, Chattanooga & St. Louis Railway. To do so, the laws in existence at the date of the respective pur- chases, leases, etc., together with the terms and method of conveyance, will have to be examined. This will be gone into fully in the discussion of the charters, franchises, etc., of the respective roads acquired. For the time being, however, it may be said with confidence that such franchises, rights, privi- leges and immunities contained in the charters of the various 682 CHARTER, FRANCHISES, AMENDMENTS, ETC. roads acquired, and which passed to the Nashville, Chattanooga & St. Louis Railway, by virtue thereof, will be confined alone to the line of those roads. See case of Rogers v. Nashville, Chattanooga & St. Louis Railway decided at Cincinnati by Judge Lurton of the circuit court of appeals, but which has not yet been reported. On the other hand, it seems to be an open question whether or not those contained in the original charter of the Nashville & Chattanooga Railroad Company do not spread out and embrace all after acquired lines; for the authority to purchase and operate other roads would doubtless by implication change the termini of the original road and con- stitute the road so purchased a part of its main stem. The subject has never been judicially noticed in Tennessee, but many of the states recognize the soundness of the doctrine. Thus, in New Jersey, it was held that: "Where a railroad sixty-six feet wide is purchased by another company which had power to condemn a hundred feet in width, the latter com- pany, after operating the road for several years, might widen it to a hundred feet. 33 N. J. L., 323; 4 Vroom, 323; Rorer on Railroads, p. 331. These questions will be discussed more fully in the places mentioned above. Under this head it will be gone into gener- ally, and such application as will be made will relate more particularly to the franchises, etc., contained in the charter and amendments thereto of the original Nashville & Chatta- nooga Railroad Company, as set out in the acts of Tenn. 1845-6, ch. 1. See p. 1 herein. 1. In Alabama. For franchises granted Nashville, Chattanooga & St. Louis Railway in Alabama, see p. 55 herein. 2. In Georgia. For franchises granted Nashville, Chattanooga & St. Louis Railway in Georgia, see p. 61 herein. What is a franchise. Chancellor Kent has said that ' ' fran- chises are privileges conferred by grants from the government and vested in private individuals, and that they contain an im- plied covenant on the part of the government not to invade the rights vested, and on the part of the grantee to execute the conditions and duties prescribed in the grant." 3 Kent's Com., GENERAL POWERS OF THE N., C. A ST. L. RV. 683 458: Again, a franchise may be defined as "a privilege or authority vested in certain persons by grant of the sovereign, to exercise powers or to do and perform acts which without such grant they could not do or perform." Lewis on Em. Dom., sec. 135. Mr. Thompson, in his work on corporations, quotes the following from Chief Justice Horton, of Kansas: "The word ' franchise ' is generally used to designate a right or priv- ilege conferred by law. What is called ' the franchise of forming a corporation ' is really but an exemption from the general rule of the common law prohibiting the formation of corporations. All persons in this state have now the right of forming corporate associations upon complying with the sim- ple formalities prescribed by the statute. The right of form- ing a corporation, and of acting in a corporate capacity, under the general laws, can be called a franchise only in the sense in which the right of forming a limited partnership, or of execut- ing a conveyance of land by deed, is a franchise." 40 Kan., 96. Different kinds Of franchises. There are two kinds of fran- chises, primary and secondary. The first is the franchise of being a corporation with succession of members of having a corporate existence. The second is the franchise of holding particular property, carrying on a particular business, etc. Thompson on Corp., sec. 5353. HOW alienated. The supreme court of Tennessee has de- cided that the franchise to be a corporation is not the subject of sale and transfer, unless by some positive provision of statute law pointing out the mode. It was also decided that the fran- chise to form a corporation and act in a corporate capacity means the power to charter a new corporation by appointing the corporators, and that such a "power is legislative and can- not be presumed from a mere authority to sell the property and franchises of an existing corporation. 9 Lea, 613, 614; 21 Law Rep., 138; 53 Ala., 237; 22 Ohio St., 428; 3 Tenn. Chy., 602; Thompson on Corp., sec 5353. It was once decided in Tennessee that the secondary fran- chises that is, the franchises to build or own and manage a railroad, and to take tolls thereon, are not necessarily corpo- 684 CHARTER, FRANCHISES, AMENDMENTS, ETC. rate rights; that they are capable of existing in and being en- joyed by natural persons, and there is nothing in their nature inconsistent with their being assignable; that the franchises thus sold would be such as appertain to the use of the prop- erty, and without which the road would be of little value. 9 Lea, 613; 93 U. S., 217. This decision, however, seems to have been receded from, in so far as it implies the right of a railway company, or corpo- ration having a public duty to perform, to assign their second- ary franchises without positive legislative authority. Thus it has subsequently been held that the powers of a railway corpo- ration to execute a mortgage of its franchises or of corporate property essential to its operation, must be expressly conferred by statute; and further, that such a corporation cannot, with- out express authority, abdicate the functions and duties im- posed for public purposes by either a sale or a lease, and for the same reason it may not make a mortgage, for a foreclosure would bring about a sale and abandonment of its powers and responsibilities. 4 Pick. (Tenn.), 152, 153; 15 Lea, 104. This holding seems to be in line with the great weight of modern authority. Jones on Railroad Securities, sees. 1-10; 86 Tenn., 603; 101 U. S., 71; Elliott on Railroads, sees. 519, 68; Thompson on Corp., sees. 5353, 5356, 5370; 130 U. S., 1; 139 U. S., 24; 128 U. S., 174. i. Same. May alienate secondary franchise by statute ; hOW. [In Tennessee.] All corporations now or hereafter existing under the laws of this state, whether incorporated under special or general laws of the state, shall have the power, and they are hereby authorized and empowered, to lease and dispose of their property and franchises, or any part thereof, to any corporation of this or any other state engaged in or carrying on, or authorized by its charter to carry on in this or any other state the same general business as is author- ized by the charter of any such lessor corporation; and said corporations shall likewise have the power, and are hereby authorized to make any contract for the use, enjoyment, and operation of their property and franchises, or any part thereof, OENKKAL TOWERS OF THE N., C. A ST. L. BY. 688 with any such other corporation of this or any other state, on such terms and conditions as may be agreed upon between the contracting corporations; and such lessee corporation or corpora- tions is authorized and empowered to make and carry out such leases and contracts; Provided, however, That any such leases or contracts, when made by or under the direction of the board of directors of the contracting corporations, shall )>e authorized or approved by the vote of a majority, in amount, of the stock of the lessor corporations present or represented at a regular or called meeting of the stockholders of said corporation; And provided further. That sixty days' notice of such meeting be given in a Memphis, Nashville, and Knoxville daily newspaper of the time, place, and purpose of such meeting; And provided further, That, where the lessee corporation is a corporation of this state, the authority or approval of its stockholders shall in like manner be obtained to the contract or lease; And provided furtht-r, That this act shall not be so construed as to authorize any corporation of this or any other state to lease or purchase any railroad and line that is a competitor for the same business with any line already owned or under control, by lease or otherwise, or two lines of railway that are competitors for the same business in this state. Acts Tenn. 1887, ch. 198; code Tenn. (S.), 2043; 2. All railway companies of this state, and any other state or states, are authorized and empowered to build, lease or let, acquire by purchase, lease, or otherwise, and operate, hold, or dispose of any railroad or railroads in any state or states, or any parts or portions of any such railroad or railroads, and the distribution thereof, as may be determined upon by their stock- holders . . . Prodded, That the same 1x3 approved by the votes of three-fourths in amount of the capital stock of said company present and voting, either in person or by written proxy, at a regular or called meeting of the stockholders of said company; And provided further, That sixty days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper of the time, place, and purpose of the meeting. Acts Tenn., 1881, ch. 9, sec. 2, as amended by the acts of Tenn., 1891, ch. 61; code Tenn. (S.), 1540. 686 CHARTER, FRANCHISES, AMENDMENTS, ETC. The supreme court of Tennessee has decided that the acts of 1881, ch. 9, as above set out, do not repeal the special limitations imposed by acts of 1877, ch. 72, upon the power of consolidated companies to make mort- gages of their property. 4 Pick., 140. 1. Railway companies may also purchase franchises of Other Companies. [In Tennessee.] Under the acts of 1871, ch. 69, which superseded the acts of 1871, ch. 22, it is pro- vided that: "Every railroad corporation in this state, whether created under a general or special law, shall have the power to acquire by purchase, or other lawful contract, and have, hold, use and operate any railroad, with its franchises, belonging to any other railroad corporation; and likewise to have, hold, use and operate any such railroad, with its franchises, which it may have heretofore purchased or acquired. Code Tenn. (M. & V.) 1250; (Shannon's Code, 1509). 2. Same. At judicial sales, etc. Prior to this time, however, the legislature had passed an act (acts Tenn. 1870- 71, ch. 23, sec. 10) which provided that : "All the rights, privileges, and immunities appertaining to the franchises sold under the judicial proceedings instituted against delinquent railroads by the state under the act of incorporation, and the amendments thereto, and the general internal improvement law of the state, and acts amendatory thereof, shall be transferred to, and vest in, the purchaser, who shall hold the same subject to all the liens and liabilities in favor of the state as now pro- vided by law against the railroad companies." Code Tenn. (M. & V.), 1253; (Shannon's Code 1512). 3. Same. By acts of Tenn. 1877, cb. 12, sec. 1, it was provided that: "The purchasers of any railroad chartered by this state, and lying in whole or in part in this state, sold under any mortgage heretofore or hereafter executed by it, when put in possession of said railroad by any court of compe- tent jurisdiction, shall have the same right to operate the same in this state as the incorporated company which executed the mortgage." Code Tenn. (M. & V.), 1254; (Shannon's Code, . 1513;. 4. Same. By acts of Tennessee 1879, ch. 52, sec. 2, it was provided that: " Whenever the property and franchises of any GENERAL POWERS OF THE N., C. owers to investigate any violations of the above sections; I^rovided, This act shall not apply to crossings within the corporate limit** of towns or cities. Same, sec. 2. Must grade and keep in repair crossings, how. Hy acts ]>'.'!, p. 840, it is provided that "every company or corpora- tion or person operating a line of railroad within the state of Tennessee shall l>e required to grade to a level with the rails of said railroad and to keep in repair every public road cross- ing such railroad for a distance of ten ( 10) feet on each side of such railroad track and between the rails thereof; /WfvW<*/, That the provisions of this act shall not apply within the limits of any city, taxing district, or incorporated town. Acts, 1899, ch. 356, p. 840, sec. 1. Penalty for failure. That the failure of any such com- pany or corporation or person to comply with the require- ments of section 1 of this act shall l>e deemed to be a misde- meanor and punishable as such. Same, sec. '2. As to enlarging bridges or crossings considered. Whether the railway is bound to enlarge and extend a bridge or cross- ing it was compelled to originally make, if by increase of pop- ulation and public travel it Incomes inadequate question reserved. 3 Pick. ^Tenn. >, 720. Hut see 1(5 Lea (Tenn.), 300. Where railroad fails to erect or keep in repair. Where a railroad fails or refuses to perform its duty as to erecting and keeping in repair crossings whore it is its duty to do so, the county can have the work done and recover the reasonable cost thereof. 3 Pick. (Tenn.), 712. Does not apply at turnpike crossings. A turnpike which crosses the railway, however, must keep in repair crossing. 3 Hax. (Tenn.), 364. 7126 CROSSINGS, GATES, STOCK GAPS, ETC. Private Crossings. " Where it shall be necessary to pass through the land of any individual, it shall be the duty of the road to provide for such individual a proper wagon way, or ways, across said road from one part of his land to the other." Charter, sec. 32, p. 21 herein. Under this section, as no election is given the land owner, it is the right of the railway to determine where the crossing shall be located. 51 N. Y., 568; 4 Am. Ry. Rep., 259; 14 Am. Ry. Rep., 484; Rorer on Railroads, p. 494. In the exercise of this right, however, regard must be had to the convenience of both parties, and such a location must be made as will not subject the proprietor to needless and unrea- sonable injury. Same. Gates and fences at private crossings. By sec. i, ch. 83, acts 1879, it is made a misdemeanor for any person to obstruct public highways, private ways, streets, alleys, sidewalks, pub- lic grounds, commons, and ways leading to burying places, churches, schoolhouses, etc. Another statute declares it to be an indictable nuisance to obstruct public highways, private ways, etc., to burying grounds. CodeTenn., 4913, sub sec. 4; (M. & V.) 5746, sub. sec. 4; (Shannon) 6869, sub. sec. 4. The supreme court of Tennessee has decided that a railroad company in all such cases is under no legal obligation to fence such crossing or to put gates or bars across the same, but was positively inhibited from doing so. 17 Pick. (Tenn.), 197. Whether this decision would apply to a private crossing erected by the railroad company for the convenience of a landowner through whose farm the railroad ran, so as to enable him to go from one part of his farm to the other, is doubtful. The question is now before the supreme court in the case of J. W. Greer vs. Nashville, Chattanooga & St. Louis Railway, ap- pealed from Davidson county, and will doubtless be decided at its next December term, 1899. GENERAL I'OWKKfl OF TIIK N., C. A ST. L. BY. 7l2c Most of the states hold that railways are required to place gates or bars across private crossings and keep them in repair, and t hut if the gates are left open or bars thrown down by third persons without the fault of the railway company, it cannot be held liable for accidents therefrom. 43 111., 119; 47 111., 173; 54 la., 540; 29 Ind., 545; Korcr on R. K., 495; 11 Am. & Eng. U. II. Cases, 491: 1(X) Ind., 301; 23 Am. & Eng. R. R. Cases, 200; 101 Ind., 597; 10 N. Y., 476. Stock gaps or cattle guards at private crossings.- In all C.-IM-; where the railroad company is not required to erect gates or bars at private crossings, it will l>e required to put in' stock gaps and wing fences, so as to prevent stock from leaving the private crossing and going up or down the railroad. At such private crossings at which it can erect gates, it need not put in stock gaps. Stock gaps or cattle guards on unfenced tracks. " Kach and every railroad company whose unfenced track passes through a field or inclosure is hereby required to place a good and sufficient cattle guard, or stops, at the points of entering such field or inclosure, and keep the same in good repair." Acts Tenn., 1881), ch. 24S; Shannon's code Tenn., 1595. Applies to fields hereafter opened. " I" ^ise a field or in- closure through which such unfenced railroad track passes shall be enlarged or extended, or the owner of the land over which such unfenced track passes shall open a field so as to embrace the track of such railroad, such railroad company is hereby required to place good and sufficient cattle guards or stops at the margin of such inclosure or fields and keep the same in repair; Provided, Such owner shall give the nearest or most accessible agent of such company thirty days' notice of such change. /e made by written j>etition, signed by the applicant, to the commissioner of the district through which the road runs or is asked to be located, sj>ecify- ing 'in particular the changes or action asked; or, if the road extends into two or more districts, or is the dividing line be- tween districts, then to the commissioners of said districts. Shannon's code Tenn., ^ 1(520. Notice to interested parties; who are. No road shall be opened, changed, or closed without giving at least five days' notice to all parties interested of the time said road or roads are to be opened, changed, or closed, and a surveyor or civil engineer may be employed, if necessary to locate the same. Landowners and those controlling land touched by the pro- posed highway shall be deemed interested parties. Shannon's code Tenn., 1621. Notice when landowners are nonresidents. If any owner of the land so concerned is a nonresident, then notice to his agent or attorney, if any such agent or attorney resides in the county, shall be sufficient. If there be no such agent or attor- ney, then the notice shall be made by publication for four con- secutive weeks in the newspaper having the greatest circulation in the county, the last publication to be at least one week be- fore the hearing. Shannon's code, 1622. Jury Of View in one district. Where the opening, (Chang- ing, or closing of a public highway only affects one commis- sioner's district the said commissioner shall associate with him- self two other freeholders of said district whom he has never consulted u\*m the question involved, and who shall l>e in no way related to the parties affected by such change, closing, or ojwning of said highway, and who shall take ami subscril>e to an oath Imfore said commissioner to act without favor or par- tiality in the matter, whoso oaths, thus subscribed, shall be- come part of the record, upon appeal l>cing taken, and the said 714 CROSSINGS, GATES, STOCK GAPS, ETC. commissioner and two freeholders shall constitute a jury of view. Shannon's code, 1623. Damages, hOW paid. Said jury shall have the power of con- demnation and to assess damages, which shall be paid out of the general funds raised for county purposes, upon the order of the commissioner on the county judge or chairman of the county court, who shall issue his warrant therefor, if he ap- prove the same. Shannon's code, 1624. Appeals. Any person or persons considering themselves aggrieved by the action of the jury of view may appeal to the next quarterly county court, and from there to the circuit and supreme courts. In case of an appeal the jury of view shall forward all the papers in the case, with their action on the same, to the said quarterly court appealed to. Shannon's code, 1625. Special act as to crossing in Nashville. By acts 1857-8, ch. 130, the Nashville, Chattanooga & St. Louis Railway was required to keep a watchman at the crossing at the depot in Nashville, which act is set out herein. See p. 34, and note thereunder. [In Alabama.] Alabama grants Nashville, Chattanooga & St. Louis Railway rights of Tennessee charter. By acts Ala. 1849-50, No. 123, set out herein on p. 56, and acts Ala. 1888-9, p. 443, set out herein on p. 59, the Nashville, Chat- tanooga & St. Louis Railway was given rights of Tennessee charter as to certain branches. Alabama acts as to crossing other roads. All railroads chartered under the general laws of Alabama have authority to cross or intersect any railroad or street railway, and if such crossing or intersection cannot be made by contract or agree- ment with the corporation, association or person having and controlling the railroad or street railway to be crossed, or with which an intersection is to be made, either party may proceed, in accordance with the provisions of article 1, chapter 42, of this code, and all other laws relating to the condemnation .of GENERAL POWERS OF THE N., C. A ST. L. RY. 715 lands for public uses, the provisions of which are hereby made applicable, to have an assessment and ascertainment of the dam- ages which may accrue to such corporation or person by reason of such crossing or intersection. The notice required by sec- tion 1714 (3209) may be served on any agent of such railroad corporation in the county where the proceedings are instituted. Code Ala., 1896; 1165. Alabama acts as to crossing navigable streams, public roads, etc. Railroads chartered under the general laws of Ala- bama, are authorized, in the construction of their roads, to cross navigable streams or waters, but in the erection and con- struction of bridges, trestles, or other structures, must not im- pair the navigation of such streams' or waters; and the corpora- tion is also authorized to use, or to cross, or to change public roads, when necessary in the building, construction, or main- tenance of its roadway or track, but must place the public road used, or crossed, or changed, in a condition satisfactory to the authorities of the counties having control thereof; but where practicable the track of the railroad must go under or over the public roadway. Code Ala., 1896 ; 1164. 1. For Alabama acts authorizing Nashville, Chattanooga & St. Louis Railway to build bridge over Tennessee river, see "Bridges" herein, p. 642-3. 2. Duty to erect highway bridge over railroad at a safe elevation. 87 Ala., 708. 3. The duty to put crossings in order a corporate duty, and pro- ceedings must be against the corporation. 97 Ala., 105. Alabama act authorizing counties and cities to open roads, Streets, etc., Over railroads. There is no special act of Ala- bama upon this subject, but the authority granted to counties and cities generally to open roads and streets is sufficient to authorize a lay-out across the right of way of a railway, but not through its depot grounds, etc. 23 Ohio St., 510; 49 Mo., 480; 35 Minn., 141; 24 N. Y., 345; Lewis on Em. Dom., p. 351, sec. 266; Mills on Em. Dom. , sec. 46. As counties and cities of Alabama have been granted this authority, such crossings can l>e made, but the provisions of 2445 et aeq. of the code of Alabama, 1896, must be strictly followed. 716 CROSSINGS, GATES, STOCK GAPS, ETC. Alabama acts as to cattle guards and stock gaps. "Every person or corporation operating a railroad must put cattle guards upon such railroad and keep the same in good repair whenever the owner of the land through which the road passes shall make demand upon them or their agents and show that such guards are necessary to prevent the depredation of stock upon his land." Acts Ala. 1886, p. 163; code Ala. 1896, 3480. [In Georgia.] Georgia grants Nashville, Chattanooga & St. Louis Railway certain franchises, as to its main stem. See p. 61 herein. Georgia acts as to railroads crossing each other; terms. "Any railroad company, heretofore or hereafter chartered by the legislature of this state, shall have the right to cross any other railroad heretofore or hereafter built or to be built in this state, upon the following terms: They shall be allowed to cross at grade points, or at any other point where the same shall not obstruct the other road, and may be allowed to cross by a tunnel or bridge, if necessary, said tunnel or bridge being made absolutely secure. Code Ga., 1895, 2219; acts 1870, p. 428. See also the following sections of the same code: t& 2167 (5) (6), 2233. 2227. 2243, 2246, 2228, 2231. 2172. Georgia acts as to keeping up crossings. "All railroad companies shall keep in good order, at their expense, the pub- lic roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws." Code Ga., 1895 2220; acts 1838, Cobb, 95. 1 It will be noticed that this section seems to require railways to keep in good order public roads or private ways where crossed by them. In other words, it seems the public roads or private ways must have been constructed before the railroads to hold them liable. If the rail- roads were built first then the public roads could not be crossed by the railroads, but the railroads crossed by them. Mills on Emi. Dom., \ 43; 24 N. J. L., 62; 76 111., 447. 2 This duty does not embrace a path or unfrequented way. 72 Ga , 137. GENERAL POWERS OF THE N., C. A ST. L. KY. 717 3 Applies to streets. 74 Ga., 774. 4 Railroad not required to build bridges for crossings not public nor private ways, nor responsible for damages on account of bridge nar- rower than the road at such crossing. 08 Ga., 446. Georgia acts as to right of counties and cities to build road and street crossings over railroad. There is no specific law authorizing this to be done in Georgia, but the authority granted to counties and cities generally to open roads and streets is sufficient to authorize a lay out across the right of way of a railroad, but not through its depot grounds, etc. Mills on Em. Dom., 46; Lewis on Em. Dom., p. 351; 266; 24 N. Y., 345; 23 Ohio St., 510; 49 Mo., 480; 35 Minn., 141. As counties and cities of Georgia have been granted this authority, such crossings can be made. See 520 of code Ga., 1895. Also acts Ga. 1897, as set out in acts 1896-7-8, pp. 110, 176. Georgia acts as to Western & Atlantic Railroad. By 1022 of the code of Georgia, 1895, it is provided that " all the public road laws and penal laws touching the roads of this state, whether to obligate or protect, apply to the state road (Wes- tern & Atlantic Railroad), unless specially excepted, or some other provision is prescribed in lieu of some one or more thereof." Western & Atlantic Railroad. For franchises, etc., of Western & Atlantic Railroad, see p. 335, et seq. herein. Georgia acts as to building and maintaining crossings, cat- tle guards, etc., at private and public ways. Every railroad company shall be required to build and maintain at its own expense good and sufficient cattle guards on each side of every public road or private way established pursuant to law, and on the dividing line of adjoining landowners, where the railroad may cross such public roads, private ways, or dividing lines, when necessary to protect said lands. Thirty days' written notice to build such cattle guards shall be served on any agent or officer of such company by the owner of the lands to be affected by such cattle guards; aid notice shall be directed to said railroad company, and contain a description of the |H)int where 718 such cattle guard is desired, be signed by the said landowner or his agent or attorney, and attested by some officer with a seal; a certified copy of the same being prima facie evidence of the contents of the original notice. Code Ga. 1895, 2243. (1) Under this section landowner must show necessity for cattle guards before he can recover damages for want of. 104 Ga., 148. (2) No duty to build save at public roads or private ways legally es- tablished. 104 Ga., 602. Liability for failure. If the railroad company shall fail to build such cattle guards within thirty days, then the railroad company shall be liable to the owner of the land for all dam- ages resulting from the failure so to build; and for each day elapsing after the thirty days have expired, until the said cattle guard is built, in the sum of twenty-five dollars, to be recov- ered by said landowner in any court having jurisdiction over the same. Code Ga. 1895, 2244. Georgia acts requiring additional cattle guards. Whenever the owner of any lands over which any railroad company may have acquired the right of way may desire additional cattle guards other than those provided for in the preceding section, or any farm crossing on his land, it shall be the duty of the railroad company, upon written notice as provided in the pre- ceding section, within ten days after the service of the said no- tice, to submit to the landowner or his agent, if to be found, a written estimate of the cost of such cattle guard or farm cross- ing; whereupon the said landowner or his agent, if satisfied with the same, shall pay to the company the sum so estimated, when the company shall at once proceed to build such cattle guards or farm crossings; the cost of the farm crossing to cover only the roadbed of the said railroad. In the event the landowner and the company cannot agree as to the correctness of the said estimate, then the same shall be determined in the same manner as damages for right of way. The award may be had at the instance of the landowner, or his agent, as well as at the in- stance of the railroad company. In the event the railroad company shall fail to comply with the provisions of this sec- tion, or to keep in good repair the guards or crossings, it shall be liable for all damages resulting to such landowner by the GENERAL POWERS OF THE N. , C. A ST. L. RV. 719 failure to build or keep in good repair such cattle guards or farm crossings, to be recovered in any court having jurisdic- tion thereof. Code Ga. 1895, 2245. (1) See notes to preceding section. r.'i No duty to maintain as to one not owning land. 100 Ga,, 600. DOCS not affect existing laws. Nothing in the two preced- ing sections shall be construed in any way to change the lia- bility of railroad companies for damages to live stock, or to prevent landowners from joining their fences to stock gups, or of free access from and to the said farm crossing. This and the two preceding sections shall not apply to any roads, ways or crossings within the limits of any incorporated town or city. Code Ga. 1895, 2246. [In Kentucky.] Kentucky acts as to railroads crossing each other. "Every corporation proceeding to construct its road in or through any county shall file and have recorded, at its expense, in the county clerk's office of such county a map of the route, showing the center of said proposed road, and the width thereof; and if, after a road is located, it is desired to change its location, or the proposed route is changed, as it may be, a map showing such change, as well as the center and width thereof, shall be filed and recorded, at its expense, in the county clerk's office of the county in which the change is made. If the proposed route, as indicated by the map, crosses the line of any other railroad, notice of such fact shall, before the construction of the road is commenced near the point of crossing, be given to the railroad commission, who shall give notice' to the corporation whose road it is proposed to cross, as well as the other corporation, of the time and place it will meet to consider the question of approving the crossing, if objection be made thereto; and the commission may determine the manner in which the crossing shall be made to protect against accidents thereat. Code Ky. 1894:, 767. Kentucky acts giving power to cross highways, water courses, streets, railroads, etc.; terms. Railroads of Ken- tucky have power "to construct their roads upon or across any water course, private or plank road, highway, street, lane 720 CROSSINGS, GATES, STOCK GAPS, ETC. or alley, and cross any railroad or canal; but the corporation shall restore the water course, private or plank road, highway, street, lane, alley, railroad or canal to its former condition, as near as may be, and shall not obstruct the navigation of any stream, or obstruct any public highway or street, by cars or trains, for more than five minutes at any one time; and shall construct suitable road and street crossings for the passage of teams by putting down planks or other suitable material be- tween and on each side of the rails, the top of which shall be at least as high as the top of the rails of such road or street; and, in case the road is constructed upon any public street or alley, the same shall be upon such terms and conditions as shall be agreed upon between the corporation and the authorities of any city in which the same may be, but such road shall not be constructed upon any public street or alley until compensation shall be made by the corporation therefor to the owner of the property adjoining such street or alley, and opposite where such road is to be constructed, either by agreement or in the manner provided by law." Code K} T . 1894, 687, sub. sec. 5. Kentucky acts as to stock gaps; where to be erected. "That all corporations and persons owning or controlling and operating railroads as aforesaid shall erect and maintain cattle guards at all terminal points of fences constructed' along their lines, except at points where such lines are not required to be fenced on both sides, and at public crossings. But where there is a private passway across said railroad, the landowner for whose benefit it is kept open shall bear one-half of the ex- pense of cattle guards and gates, the former to erect the gates, the corporation or person operating the railroad to erect the cattle guards." Code Ky. 1S94, 1793. Kentucky acts authorizing counties and cities to open roads, streets, etc., over railroads. There is no special act of Kentucky upon this subject, but the authority granted to coun- ties and cities generally to open roads is sufficient to authorize a layout across the right of way of a railway, but not through its depot grounds, etc. Mills on Emi. Dora., sec. 46; Lewis GENERAL POWERS OF THE N., C. & ST. L. RY. 721 on Emi. Dom., sec. 266, p. 351; 23 Ohio St., 510; 49 Mo., 480; 35 Minn., 141; 24 N. Y., 345. Application for opening roads shall be allowed only for the conven- ience of traveling 1 to the county courthouse, to a public warehouse, an established town, postottice, landing, ferry, mill, lead or ironworks, the seat of government, salt works, house of public worship, public ceme- tery, poorhouse, coal or iron banks, to a lock or dam. to an oil well, copper or other mines, a stone quarry, sand bank, to any navigable river, or to a convenient depot on a railroad. Code Ky. 1804, \ 4288. CHAPTER LXII. DEMURRAGE. [See also " Freight Charges/' herein.] When demurrage may be charged. [in Tennessee.] A railway company has no lien upon goods for demurrage in ab- sence of contract to that effect. A clause providing for same must be put in bill of lading in order for railway to recover. 15 Lea (Tenn.), 261. For right in Alabama, Georgia, and Kentucky, see " Freight Charges,'' herein. CHAPTER LXI1I. DIRECTORS HO W AND WHEN ELECTED QUALIFICATION- NUMB ER MEETINGS PO WERS-D UTIES, ETC. Directors; how elected. Section 8 of the charter of the Nashville, Chattanooga & St. Louis Railway provides that the affairs of the company shall be managed by a board of direct- ors, who shall be chosen by the stockholders from their own body. See p. 6 herein. Section 20 of the charter also pro- vides that, in voting for directors, the stockholders shall vote in person or by proxy, according to a prescribed scale therein 46 722 DIRECTORS. set out, bnt by acts Tenn. 1868-9, ch. 2, p. 83, this section was amended, and the amendment accepted by the company September 20, 1875, so as to provide that thereafter " in all elections held by the company, every stockholder shall be en- titled to one vote for each share of stock owned by him." See p. 12 herein. This being so, in the election of directors, as well as in all other elections, each stockholder is now enti- tled to as many votes as he has shares of stock. No stockholder is allowed to vote, however, in any general or other election who shall not have held in his own right the O shares on which he offers to vote at least three months previous to such election. Charter, 19, p. 12 herein. A proper con- struction of the above section would require that the stock- holder should hold his stock continuously for the three months preceding the election in order to vote. If the day of annual election should pass, however, without an election of directors, the corporation shall not thereby be dissolved, but it shall be lawful on any other day to hold and make such elections in such manner as may be provided by by-law. Charter, 9, p. 7 herein. 1. For by-laws on this see following heading: 2. Vote to be taken; how. The by-laws provide that "all elections for officers shall be by ballot, unless by unanimous consent, when the vote may be taken viva voce. See p. 647, herein. When elected. Section 9 of the charter provides among other things that the first meeting of stockholders should be held at Nashville, Tenn., at which time directors should be chosen, and the persons elected directors at this meeting should serve for such period, not exceeding one year, as the stock- holders might direct. It further provided that at said meeting the stockholders should fix on the day and place or places where the subsequent election of directors should be held, and that such elections should thenceforth be annually made. See p. 7 herein. Subsequently this section was amended by acts Tenn. 1857-8, ch. 8, so as to allow the stockholders at any meeting to fix the day and place where subsequent elections should be held. See p. 7 herein. GENERAL POWERS OF THE N., C. A ST. L. KY. 723 The first board of directors were elected January 24, 1848. Previous to that time the corporation had been managed by the board of commis- sioners. The by-laws, passed December 14, 1898, provided that "a general meeting of the stockholders shall take place annually on the Hrst Wednesday after the second Tuesday of September, in the city of Nashville, at which an election for fifteen di- rectors of the company shall be held. Notice shall be given by publication in one or more of the newspapers of the state, as may be ordered by the board of directors." See p. 646, herein. The by-laws also provide that "should the time fixed for the annual election of directors pass without an election being effected the same may be held on such subsequent day as may be designated by the board of directors or by the stockholders at a general meeting, notice of which election shall be given in the manner aforesaid.'' See p. 646, herein. For remedy where president fails to call meeting for election, see " Elections," " Meetings," herein. Refer to index. The by-laws also provide that " in all cases the directors for the time being, and the officers elected by them, shall continue in office until their successors shall be elected. See p. 646 herein. Vacancies in toard; hOW filled. By section 10 of the char- ter the directors are empowered. to fill all vacancies which may occur in the board during tb,e period for which they shall have been elected, and in the absence of the president may till his place by electing a president pro tempore. See p. 8 herein. By-law on subject. The by-laws provide that "any vacancies that may occur in the board from any cause whatever shall be filled by the board by the election of a person to fill such vacancy as provided for in section 10 of the charter." See p. 647, herein. President to preside at board meeting. President pro tern., hOW elected. The by-laws also provide that "the president shall preside at meetings of the board, preserve order, and reg- ulate debate according to the usual parlimentary rules. In the absence of the president, a chairman pro tempore shall be ap- pointed by the board." See p. 649, herein. 724 DIRECTORS. Qualifications Of directors. Section eight of the charter pro- vides that all directors in the company shall be stockholders [but by actsTenn., 1849-50, ch. 266, the charter was amended so as to allow the city of Charleston, S. C., to appoint two of her citizens as directors to represent her stock, and the Georgia Railroad and Banking Company to appoint one director to rep- resent its stock]; they shall also be citizens of the United States and bonafide stockholders in their own right of at least forty shares, which they shall have held at least three months previ- vious to their election. Charter, 19, p. 12, herein. Under this section they must have held their stock continuously for three months preceding the election. The by-laws provide that should any person be elected a director, who is at the time ineligible under the charter, the place of such person shall be considered vacant. Number Of. Section eight of the charter provides that the number of directors shall be fifteen, which number is still ad- hered to. Under the general law, however, all private cor- porations are allowed to increase or diminish the number of directors to any number not less than five, upon a vote of the stockholders representing three-fourths of the capital stock. ActsTenn., 1881, ch. 119; code Tenn. (M. & V.), 1702; Shannon's code, 2038. It is questionable whether the said acts of 1881, ch. 119, would apply to railroads. Prior to this time all railroads, by a majority vote, were allowed to reduce their directors to a number not less than six, and such vote became an amendment to its charter. Acts Tenn., 1868-9, ch. 23. Again, by actsTenn., 1859-60, ch. 202, provision was made for a reduction of the number of directors to nine, where state aid was granted and company agreed. The by-laws provide for an election of fifteen directors. See p. 646, herein. Meetings Of Board ; Regular. The by-laws of the company provide that "Regular meetings of the board shall be held at the office of the company in the city of Nashville, Tenn., on I NERAL POWERS OF THE N., C. & ST. L. RY. 725 the second Tuesday of January, April, July, and October, at 11 o'clock A.M. See p. 646, 647, herein. Same. Special meetings. The by-laws also provide that "Other meetings of the board shall be held on the call of the president, as the business of the company may demand. Spe- cial meetings may also l>e held at the request, in writing, of any three members of the board. See p. 647, herein. Quorum ; What Constitutes. The by-laws also provide that "Eight members shall constitute a quorum for the transaction of business." 1 ' See p. 647, herein. 1. A by-law is valid that provides for a less number than a majority to constitute a quorum. Thompson on Corp., \ 3921. 2. A majority of the entire board is always necessary to constitute a quorum, unless the charter, articles of incorporation, or a valid by-law or usage, confers that power upon a less number. 7 Cow. (N. Y), 402 ; 23 Barb. (N. Y.), 304, 308; 39 Mo. App., 453. Thompson on Corp., 3913. Acts at board meeting without quorum voidable. The acts of directors done without a legal quorum are voidable at the election of the corporation, or at the election of a legally con- stituted meeting of directors, thereafter held. Thompson on Corp., 35)15. See 11 Pick. (Tenn.), 484-7. Directors must act together as a board. in all matters involving the exercise of what might be termed a legislative or judicial discretion, and which the directors cannot therefore delegate to others, they can only bind the corporation by act- ing together as a board. A majority of them cannot under- take to act in their individual names for the board itself, and no act can be done affecting the ownership of property, except by a resolution of the board when regularly constituted, called and sitting in consultation. Thompson on Corp., 3905; 43 N. H., 343; 4 Daly (N. Y.), 305. Individual acts may be ratified by quorum. The act* of any one or more directors, however, though illegal, may l>e subse- quently ratified by the quorum, and thus Income binding upon the corporation. 36 N. H., 252, 270; 36 Me., 516; 13 Intl., 58; Thompson on Corp., 3928. The quorum must be legally assembled and acting as a body, however, to do so. 22 Conn., 335. 726 DIRECTORS. Effect of the disqualification of a member of the quorum. "The natural conclusion would be that if, for any reason, one whose vote is necessary to a resolution of a board of directors is disqualified from sitting and voting, the resolution will be deemed not to have been passed. This is the law in respect of the passage of resolutions in which some of the directors are directly and personally interested, such as resolutions concern- ing their own salaries. 84 N. Y., 190, 199; 1 R. L, 312; 53 Am. Dec., 624. "But it does not follow from this that, in the absence of a statute so providing, what would disqualify a judge of one of the ordinary judicial courts from sitting in a given case, will disqualify a director or trustee of a corporation. An analogy has been rather sought in the case of ministerial public officers. Thus, where a certain prescribed majority of the governing committee of a social club have power to expel a member, the fact that one member of this majority, who voted for the expulsion, is related to the member of the committee or club who has moved for the expulsion, does not render the resolu- tion of expulsion invalid." 15 Abb. N. C. (N. Y.), 14; Thomp- son on Corp., 3919. What is a quorum in case of unfilled vacancies. "it is held that a good elective assembly cannot be had without the presence of such a number of persons as will constitute a ma- jority of the entire definite number, although the number pres- ent may constitute a majority of so many of the entire number as may happen at the time to be surviving and existing, other- wise, by suffering without supplying diminutions of their num- ber, happening through death, resignation, or otherwise, the essential constitution of the body might be changed. " 1 Barn. & C., 609; Thompson on Corp., 3917. A majority of assembled quorum may act "if the quorum is lawfully assembled, a majority of its members may act, unless the charter, statute, or other governing instrument pre- scribes differently." Cowp., 530, 538; 9 Barn. & C., 648, 851; 17 Am. Dec., 525; 12 Me., 354; 12 Mass., 189; 39 Mo. App., 453; 23 N. H., 555; 55 Am. Dec., 207; 35 N. H., GENERAL POWERS OF THE X. , C. een held that the action of the majority is not invalidated, because absent 728 DIRECTORS. directors, out of the state, failed to receive notice of the meeting. 55 Conn., 455 ; s. c. , 3 Am. St. Rep., 64 ; 12 Atl. Rep., 874; cited by Thompson on Corp., sec. 3936. See 11 Pick. (Tenn.) 480-8. Notice must specify object if extraordinary. if the special meeting is not called for ordinary transactions, the object thereof must be incorporated in the notice. Id. Notice of adjourned meetings must be given. Adjourned meetings are special meetings, and members not present when the adjournment took place must be notified. Thompson on Corp., sec. 3937. Meetings OUtside Of State. The meetings of directors in the absence of anything to the contrary in the by laws, char- ter, or general law of the land, may be held in the state, or out of the state, wherein the corporation resides, or is organized, and their acts, if otherwise binding, will be valid, for they are not the corporate body, and do not sit as such. 6 Conn., 458; 34 N. Y., 208; 38 Barb., 574; 63 Barb., 415; 4 Stew., 117; 45 Ga., 34; 35 Mo.. 13; Rorer on Railroads, p. 211; Thomp- son on Corp., sec. 3933. Proceedings at stockholders' meetings are also binding upon all those participating, though held without call or notice, and outside of the state where the company was incorporated, if there is no statutory restriction of corporate actions to the limits of the state. 139 U. S., 417 [35:229]. Voting; Cannot be by proxy. A director cannot delegate his power to vote in the board by giving a proxy to another person. He must be present in person for the purpose of con- sultation. 59 Hun. (N. Y.), 561; 14 X. Y. Supp., 16; s. c., 36 N. Y. St. Rep., 923; Thompson on Corp., sec. 3909. By the old by-laws of the company any member of board might require ayes and noes," and record it on the minutes. This has been repealed by those passed Dec. 14. 18 ( .i3. See p. 646. et seq., herein. Directors not exempt from military, road, and jury duty. By sec. 35 of the charter the directors of the railway were ex- empt from military duty, serving on juries, and working on public roads. Charter, sec. 35. See p. 22, herein. This section, however, was declared class legislation, and GENERAL POWERS OF THE N. , C. A ST. L. RV. 729 void in Tennessee. 4 Lea, 316. Also in Alabama. 01 Ala., 70. Duties and liabilities of directors. The board of directors shall, once in every year at least, make a full report on the state of the company and its affairs to a general meeting of the stockholders, and oftener if directed by a by-law, and shall have power to call a general meeting of the stockholders when the board may deem it expedient. Charter, sec. 18. They shall use good faith, care, attention, and circumspection in the man- agement of the affairs of the company. They shall not exceed in their contracts the amount of the capital of the corporation and of the funds which the company may have borrowed and placed at the disposal of the board, and in case they should do so, the president and directors who may be present at the meeting at which such contract or contracts so exceeding the amount aforesaid shall be made shall be jointly and severally liable for the excess, both to the contractor or contractors and to the corporation; but any one may discharge himself from such liability by voting against such contract or contracts, and causing such vote to be recorded on the minutes of the board and giving notice thereof to the next general meeting of the stockholders. Charter, sec. 12. See 11 Pick. (Tenn.), 635, 136. The directors are individually liable, however, only for such specific debts as were contracted with their assent in excess of the paid-up capital and remain unpaid after the corporate assets are exhausted. 3 Pick., 60. See also 6 Bax., 278; 11 Pick. (Tenn.), 635; 8 Pick. (Tenn.), 598; 4 Lea 387. The diversion of funds to other objects than those men- tioned, the payment of dividends which leave insufficient funds to meet liabilities, the keeping of false books, the making and publishing of false reports, are misdemeanors, and also subjects those actively concerned in the same to damages. Code Tenn. (M. & V.), 1716-17; [Shannon's code Tenn., 2067-68.] Directors are trustees for the stockholders, and as such cannot create any relation which will make their personal interests antagonistic to those of the corporation. Nor are they allowed to make any profit out of their trust, and should tlu-y do so they will be liable to the company for secret profits. 8 Bax., 108; Thomp. on Corp., sec. 4024; 103 U. S., 651; 730 DIRECTORS. 21 Wall., 617; 7 Wai., 299; 14 Mich., 477; 59 Maine, 277; 9 Yer. (Term.), 490; 10 Yer. (Tenn.), 197. Liability of directors, how enforced. Directors' liability must be en- forced by general creditors' bill, unless company sues. 9 Pick. (Tenn.), 377; 5 Pick., 630. Powers. May pass by-laws, rules and regulations. By acts Tenn., 1847-8, ch. 70, which were passed and accepted by the company as an amendment to its charter, the directors have power to pass all regulations, rules, and by-laws, as may be necessary for the government of the corporation and the trans- action of its business, and were given power to appoint three judges and two clerks, from year to year, for purpose of hold- ing election of directors. Directors, however, have no right to pass by-laws that will deprive the stockholders of those fun- damental powers whereby they control the officers of the cor- poration. Thompson on Corp., sec. 3973. May fill vacancies in board. They may fill all vacancies which may occur in the board during the period for which they shall have been elected, and in the absence of the president may fill his place by electing a president pro tempore. Charter, sec. 10, p. 8, herein. See also by-laws to same effect, p. 647, herein. May mortgage property, when. [See Mortgage; Bonds]. May call general meeting of stockholders when expedient The directors shall have power to call a general meeting of the stockholders when they may deem it expedient. Charter, sec. 18, p. 11, herein. May lease roads. By acts Tenn., 1857-8, ch. 8, p. 5, the charter was amende;! so as to empower the company to lease any railwa} r connecting with it, for such time and upon such terms and conditions as may be agreed upon between the presi- dent and directors of the company, and the president and directors of the railroad company contracted with. [See notes under "Lease" for discussion of this amendment and heading]. It will be seen from the discussion herein, under " Leases," above re- ferred to, that it is now doubtful whether or not this act is operative. Declare dividends. The profits of the company, or so GENEKAI. roWKRS OF THE N., C. A ST. L. RY. 731 much thereof as the board of directors may deem advisable, shall, when the affairs of the company will permit, be semi- annually divided among the stockholders in proportion to the stock each may hold. Charter, sec. 30. [See also "Divi- dends"]. The above section was amended by the acts Tenn. 1847-8, ch. 70, 3, so that the company should be required to estimate and pay semi-annually to the several holders thereof a sum equal to six per cent per annum on the capital stock actually paid in, to be charged to the cost of construction; provided, a majority of the stockholders at their first regular meeting agreed thereto. This was accepted and held good in 8 Lea (Tenn.), 427. May elect president, permanent and pro tempore. The president of the company shall be elected by the directors, from among their own members in such manner as the regula- tions of the corporation shall prescribe. Charter, sec. 8. Pro tempore. In the absence of the president the directors may fill his place by electing a president pro tempore. Charter, sec. 10, p. 8, herein. See, also, p. 647, herein, for by-laws to same effect on subject. To manage the affairs of company. The affairs of the com- pany shall be managed by a board of directors. Charter, sec. 8, p. 6, herein. May allow lateral roads to be built within twenty miles. No road may be built, running laterally within twenty miles of the route adopted by this company, without the consent of the board of directors. Charter, sec. 13, p. !), herein. To act as trustees in case of dissolution. If, by decree or otherwise, the said corporation shall be dissolved, the president and directors are created trustees, with such powers only as may be necessary to collect the debts due the company, preserve the property, pay the debts, and distribute the property and effects to those who may be entitled thereto under the charter. Char- ter, sec. 37, p. 22, herein. May borrow money. A general power granted to the direc- tors to manage the affairs of the corporation includes, accord- 732 DIRECTORS. ing to the American view, the power to borrow money when necessary in the course of its business. 6 Ex., 796; 33 L. J. (N. S.) 238; cited by Thompson on Corp., 3988. May appoint judges and clerks of all stockholders' elections for directors. The board of directors of said company shall have power to appoint three judges and two clerks, from year to year, for the purpose of holding elections of directors. Acts Tenn., 1847-8, ch. 70, 2. May make and transfer negotiable paper. The power to borrow includes, by a natural implication, the power to emit those evidences of indebtedness which are customary in the bus- iness world. Hence, the directors have the power to make, accept, or assign negotiable paper in the course of the business of the corporation. Thompson on Corp., 3989; 6 Hum. (Tenn.), 516; 9 Hum., 264; 11 Hum., 22; 2 Cold., 655; 7 Heis., 288; 9 Heis., 524, 533. May petition for amendments to charter. Section 34 of the charter provides that the charter shall be amendable from time to time by the legislature, whenever the president and directors shall unanimously petition for amendments, specifying in the petition the nature of such amendments, and that when such amendments shall be adopted by the legislature and sub- mitted to the directory and be accepted and adopted unani- mously by the president and directors, they shall be obligatory on the stockholders, and not otherwise. See, also, 1695 of Code (M. & V.), which allows directors to petition for amend- ments to change the name, increase the capital stock, or obtain other powers therein set out. [Shannon's Code, 2028] (Tenn.) It is doubtful whether this can be done novv under said section 34, of the charter, since our state constitution of 1870. Implied powers. A corporation has implied power to do all acts, and to use all power necessary to the use of the powers and privileges conferred by the charter or the organic law of the land. 2 Pick. (Tenn.), 598; 1 Pick. (Tenn.), 703. GENERAL POWERS OF THE N., C. & ST. L. BY. 733 CHAPTER LXIV. DISSOLUTION HOW DISSOLUTION MAY BE EFFECTED DIRECT- ORS TRUSTEES IX CASE OF. Directors to be trustees in case of dissolution. if, by decree or otherwise, the corporation shall be dissolved, the president and directors of said company are created trustees, with such powers only as may be necessary to collect the debts due the company, preserve the property, pay the debts, and distribute the property and effects of the company to those who may be entitled thereto under the charter. Charter, sec. 37, p. 22 herein. It is unnecessary to give the laws of Alabama, Georgia, and Kentucky on this subject, as this company has never been chartered in those states. HOW Company may be dissolved. [See general heading, " Charter, 7 ' subhead, "Forfeiture of," p. 695, et seq., herein. Corporations may exist after forfeiture or dissolution, for certain purposes, for five years. By the acts of Tenn. 1887, p. 328, 1720-and 1721 of the code of Tenn. (M. & V.) were so amended as to allow all corporations whose charters expire, or have expired, by their own limitation, or are annulled by for- feiture or dissolved for any other cause, to exist as a corporation for the term of five years after said expiration or dissolution, for the purpose of prosecuting or defending suits by or against them, settling their business, disposing of their property, and dividing their capital stock; and that all such corporations shall, during the term of rive years mentioned, but no longer, possess all the powers, rights, and privileges conferred upon them, and shall, during -udi period, U- subject to all penalties and restrictions of their original charter. Acts Tenn. 1887, p. 328. 734 DIVIDENDS. Acts that do not work dissolution. Failure to elect direc- tors. If the day of annual election of directors should pass without any election of directors, the corporation shall not thereby be dissolved, but it shall be lawful on any other day to hold and make such elections in such manner as may be prescribed by a by-law of the corporation. Charter, sec. 9, p. 7 herein. See also code (M. & V.) 4168 (Tenn.). Same. Nonuser Of franchise. The mere nonuser alone of a franchise does not work dissolution. 10 Lea, 436, 443; 8 Bax., 235; 7 Cold., 420; code Tenn., 3431; (M. & V.), 4168, 1712; 15 Lea, 104, 110; 40 N. J. Eq., 427; 87 Mo., 95; 12 Pick. (Tenn.), 253. Same. Miscellaneous. A corporation is not dissolved by insolvency, nor by the sale or assignment of all its property, nor by the appointment of a receiver. 12 Pick. (Tenn.), 252; 2 Pick. (Tenn.), 614. Nor by a failure to elect officers. 10 Lea (Tenn.), 443; 4 Cold. (Tenn.), 96; 10 Yer. (Tenn.), 218; 3 Hum. (Tenn.), 522; code Tenn. (M. & V.), 4168; 86 Tenn., 614, 628; 12 Pick. (Tenn.), 252. Nor by the fact that all the shares are owned by one man. 12 Pick. (Tenn. ), 252. In Georgia a dissolution may be by forfeiture of charter and misuser of franchise. 100 Ga. , 147. Right to remove rails, bridges, etc., from right of way in Case Of dissolution. See similar heading herein, under "Em- inent Domain," also under "Right of Way." Right to remove, tear down, or abandon stations without working forfeiture Or dissolution. See "Stations" herein. Refer to index. CHAPTER LXV. DIVIDENDS WHEN AND TO WHOM PAID KINDS OF. When dividends are to be paid. Charter provision. The profits of the company, or so much thereof as the board of directors may deem advisable, shall, when the affairs of the NKKAL I'OWKKS OF THE N., C. A ST. L. RY. 735 company will permit, be semi-nnmwlly divided among the stock- holders in proportion to the stock each may hold. Charter, sec. 30, p. 20 herein. By acts Tenn. 184:7-8, ch. 70, sec. 3, this section of the charter was amended so that the company should be required to estimate and pay semi-annually to the several holders thereof a sum equal to six per cent, per annum on the capital stock actually paid in, to be charged to the cost of construction; Pro- vided, a majority of the stockholders at their first regular meet- ing agree thereto. Acts Tenn. 1847-8, ch. 70, sec. 3, but see discussion of right of legislature to amend the charter under heading, ' ' Charter. ' ' This amendment held good in 8 Lea, 427. Misdemeanor ; tO pay, When. The payments of dividends, however, which leave insufficient funds to meet liabilities is a misdemeanor, and also subjects those actively concerned in the same to damages. Code Tenn. (M. & V.), 1716-17 [Shan- non's code Tenn., 2067-68]. StOCk dividends. " In the absence of a statute restraining such action, it is within the discretion of the directors of the corporation, or at least, within the power of the corporation, to issue additional .shares of stock to represent its surplus profits, and to divide such stock pro rata among its existing stockholders. The reason is, in substance, that the effect of doing this is merely to change the form of ownership of the capital of the corporation." Thompson on Corp., sec. 2167 ; 93 N. Y., 162 ; 99 Mass., 101 ; 115 Mass., 471 ; 49 Pa. St., 270. Bonds in lieu Of Cash dividends. "A railroad corporation may issue to its stockholders bonds in lieu of cash dividends to represent earnings which have been used in construction.'' Thompson on Corp., sec. 2169; 47 Hun (N. Y.), 550; 87 Tenn., 406. TO Wbom dividend paid. The dividends should be paid to those persons whose names appear on the books of the corpo- ration as the owners of the stock. If the shares are transferred or assigned without notice to the company, or transfer of cer- 736 EMINENT DOMAIN. tificate on books of company by assigner or transferor, the company will be protected in paying dividend to party whose name appears on the books as the owner of the shares. Sec. 36 of the charter of this road provides that u the stock of said company may be transferred in such manner and form as may be directed by the by-laws of said corporation.' 7 See p. 10 herein. A by-law or rule of the company, however, requiring the transfer to be made on the books of the company, is a rule made solely for the benefit of the company. By it the com- pany is enabled to know who are entitled to vote, and to whom to pay dividends. 91 Tenn. (1 Pick), 221, 238; 18 S. W., 546; 1 Spell. Priv. Corp., sec. 498; Parker v. Bethel Hotel Co., vol. 34, No. 2, S. W. Rep., 217; 12 Pick. (Tenn.) 253. Guaranteed dividends. A railway has no power, in the absence of explicit grant of such power, to guarantee a speci- fied dividend on its stock, or stock in an elevator company. 1 Pick. (Tenn.) 703 ; (85 Tenn.) 703. Dividends wrongfully paid. There can be no recovery, by or on behalf of shareholders, for dividends improperly declared and paid out to the shareholders themselves. 5 Pick. (Tenn.), 631. CHAPTER LXVI. EMINENT DOMAIN RIGHT OF IN \VHOSE NAME TO BE DONE- NATURE OF RAILWAY'S OWNERSHIP OF RIGHT OF WAY SUCCESSIVE APPROPRIATIONS RIGHT OF OTHERS TO CONDEMN PROPERTY OF THIS COMPANY. Right of Nashville & Chattanooga Railroad to condemn, under its charter, right of way and approaches. [in Ten- nessee]. The charter of incorporation of the Nashville, Chat- tanooga and St. Louis Railway was granted by the legislature in 1845 for the purpose of establishing a communication by railroad between Nashville and Chattanooga. Sec. 24 of its charter, p. 15, herein, provides that "where any lands, or GENERAL I'OWKKS OF THE N., C. erate its trains. It can only go beyond these limits for necessary rail- road purposes. It cannot sell, transfer, encumber, or use its right of way except as necessity and convenience may demand for the projxjr o|>eration of its road. It cannot license the ap- propriation of any part of such right of way to private busi- ness purposes, nor to public purposes, except so far as needful 744 EMINENT DOMAIN. and helpful to the operation of the road itself. 17 Pick. (Tenn.), 62. If condemnation was made as provided for in section 24 of the charter (p. 15 herein), and the amount of damages so as- sessed, paid or tendered, then the title to the right of way vested in the railroad company in fee simple, and it can do anything with it, or build any kind of structures on it, as any other owner could do. The disadvantage of the title so acquired, however, would be that the statute of limitations would doubtless run where adjoining landowners built on right of way. The title acquired under section 25, therefore, is the more valuable. The above applies to all branches. Right to trees, herbage, gravel, etc., on right of way. The right to the easement carries with it the right to so much earth, gravel, stone, trees, and timber within their lines of location as may be needed for the construction and maintenance of the entire road. Such material may be carried from point, to point on the line of road covered by the charter under which the right of way was originally acquired to supply deficiencies and diminish excesses of each of such material on any other point of said road. It is probable, however, that it cannot be taken from a point on the right of way acquired under one charter and be moved to a point on the right of way acquired under another, as, for instance, removing it from some point on the Lebanon Branch to some point on the Centreville Branch. Rorer on R. R., p. 325; 39 N. H., 564; lOCush., 6; 9 Vroom, 28; 19 Kan., 517; 2 Iowa, 288; 5 Am. Rep., 624; Lewis on Emi. Dom., sec. 587. See also 35 N. H., 564; 33 Kan. 746. It cannot remove or sell them, however, merely for profit. It must be used in^ the construction or maintenance of the road, and not done through wantonness or spite. 1. The above applies to all branches. 2. Where right of way paid for or condemned. If the right of way at the point in question was purchased in fee, or if condemned under section 24 of the charter, then the railway owns the same in fee simple and can remove or sell, gravel, etc., from it at pleasure. GEXKItAL POWERS OF THE X. , C. A ST. L. RY. 7-1.". What damages to adjoining landowner included in condemn- ing right Of way. "The assessment for the right of way covers all damages sustainable by the landowner over whose land the right of way is taken, not only for the easement, but for all inci- dental injuries, inconveniences, and dangers incurred or liable to occur by the proper construction and use of the road, or by any act necessary to such proper construction and use; in- creased rates of insurance, caused by increased liability to fire; additional expense of fencing; stoppage of drainage; drying up of springs; diminution of value by separation of tracts into separate parts; irregularity of surface," etc. In other words, all injuries or damage resulting from the rightful construction of the road are covered, and the compensation for same are exhausted by the original assessment made by the commission- ers in assessing for the right of way. Rorer on R. R., p. 324; 87 Ky., 391; 91 Ky., 487; 69 Ga., 396. The above applies to all branches. Overflowing for twenty years gives right to do so. If a railroad for twenty years continuously maintains its roadbed so as to overflow the adjacent lands, claiming the right to do so, and withoutinterruption or recognition of the landowners' rights, it acquires by prescription a right to do so. 6 Pick. (TemU, 157; 11 Lea (Tenn)., 382. Successive appropriations ; right to take land for right of way, side tracks, depots, approaches, etc., not exhausted. The power of a railway to condemn property for its right of way, depots, approaches, etc., from time to time, as necessity requires, after the exercise of the right in the first instance and the completion of the road has not received in Tennessee that consideration which the importance of the subject requires. Cases frequently occur where the right of way, depot facilities, approaches, etc., originally appropriated under the charter, become inadequate, as trade, commerce and travel increase with the growth of the country. A railway, in its infancy, could not possibly anticipate what conveniences of this descrip- tion the future may require. Not only does commerce and population increase, but the laws governing the reception and 746 EMINENT DOMAIN. convenience of passengers, patrons, and the public generally, render constantly the necessity of larger and more commodious depots, freight houses, approaches, and rights of way. If the company was compelled to anticipate in advance all such future needs, it would not only have to pay for enormous tracts of property in its incipiency, but often and often be saddled with property which it could never use at all. Not only would this be so, but if, from economy or poverty, a small amount of land was taken, or business grew beyond any reasonable anticipa- tion, the railway might, in a few years, find itself unable to discharge its duties to the public. For these reasons it is almost universally held, though the question seems never to have been positively decided in this state, but doubtless would be if tested, that, ' ' in the absence of any restriction or limitation, the power to take private prop- erty may be exercised by the grantee road from time to time, as necessity requires;" and, that "a railroad company, after having located and completed its road, may, as the expansion of its business requires, take additional land for right of way, terminal facilities, depot accommodations, side tracks, or for any other purpose for which its compulsory powers may be ex- ercised." Lewis on Em. Dom., sees. 259, 247; 1 Md., 553; 52 Ind., 16, 42; 101 Ind., 366; 113 111., 156; 26 Kan., 669; 13 Neb., 361: 54 Pa. St., 103; 57 Ark., 359; 58 Pa. St., 249; Elliott on Railways, sees. 930, 962; 104 Ills., 323; "8 Nev. 100; 58 Md., 539; 17 111., 123; Rorer on Railroads, p. 372, 275; 16 Ohio St., 390; 54 Pa. St., 103; 10 Vroom, 45; 67 Barb., 426; 52 Ind., 16; Randolph on Em. Dom., p. 107, sec. 116; 36 Conn., 196; 87 Ala., 501; 85 Ala., 106; 101 Ind., 366; 87 Ky., 72; 71 111., 592; 45 Mo., 212; 18 Pick. (Mass.), 472. This being so, the question presents itself, is there any re- striction or limitation in the charter of the Nashville, Chatta- nooga & St. Louis Railway as to its power to take or condemn property from time to time as the expansion of its business requires, for additional right of way, depots, terminal facili- ties, sidetracks, etc. ? If there are no such restrictions or lim- GENERAL POWERS OF THE X., C. A ST. L. RV. 747 itations then the power is possessed, and it will not he limited to its purchasing power alone. Section 24 of the charter provides that " where any lands or right of way may be required by the said company for the purpose of constructing their road, and for want of agreement as to the value thereof, or from any other cause the same can- not be purchased from the owner, the same may be taken at a valuation to be made by five commissioners, or a majority of them, to be appointed by the circuit court of the county where some part of the land or right of way is situated," etc. See p. 15 herein. From this it will be seen that power is given to take land or right of way for the purpose broadly of construct- ing the road. No restriction is made as to the numJ>er of feet to lie taken, nor is any limitation provided as to the time in which it shall be done, the only proviso being that it shall be taken only when required for the purpose of constructing the road. Section 21 of the charter provides that " the said company may purchase, have and hold in fee, or for a terra of years, any lands, tenements, hereditaments, which may be necessary for said road, or appurtenances thereof, or for the erection of depositories, storehouses, houses for the officers, servants, or agents for the company, or for workshops or foundries to be used for said company, or for procuring timber, stones oi 1 other materials necessary for the construction of the road or its appurtenances, or for effecting transportation thereon." See p. 13 herein. The supreme court, in construing these two sections together, held as l>efore explained that it was evidently the intention of the legislature to require the railway to purchase, or negotiate for, and not to condemn lands for depositories, store houses, houses for agents, workshops, or for procuring timl>er, stone, or other material necessary for the construction of the road, as was provided for in section 21 as aforesaid, but that it could condemn or take the land under section 24, not only for the right of way, but for approaches to the road by persons or vehicles and for places for receiving and delivering, loading 74:8 EMINENT DOMAIN. and unloading goods, merchandise, and produce, conveyed or to be conveyed over the road. 11 Hum. (Tenn.), 348. For these purposes, however, no restriction or limitation either as to the amount of land, or the time in which it is to be taken, was imposed. Under section 24 of the charter, there- fore, any number of feet, whether one hundred or ten thousand, could have been taken, if absolutely necessary for railway pur- poses. It is true section 25 of the said charter provides that "in the absence of any contract with the said company in rela- tion to land through which the said road may pass, signed by the owner thereof, or by his agent, or claimant, or person in possession thereof, which may be confirmed by the owner, it shall be presumed that the land upon which the said road may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the company by the owner thereof, etc." See p. 17 herein. Even this section, however, does not restrict the railway to one hundred feet on each side of the center of the road. It simply provides that in certain contingencies it shall be pre- sumed that the land upon which the road is constructed, to- gether with a space of one hundred feet on each side of the center of the road, has been granted to the company. In other words, that it was conveyed to it, not condemned. It does not restrict the railway to this one hundred feet, however, for all time to come, but simply places it in the attitude of having originally purchased that number as an easement, instead of having taken it under section 24 of its charter; for as the pre- sumption of a grant would arise, the presumption that it had never exercised its right to condemn as to that particular tract of ground would of necessity also arise. There is nothing in this section, therefore, that restricts the railway to any partic- ular number of feet, nor limits the time in which it may act. It stands in the attitude under this section of having originally considered that one hundred feet on each side of its road was sufficient for its necessities at that time, and of having pur- chased an easement over the same. 5 Pick. (Tenn.), 293, 294. GENERAL POWERS OF THE N., C. fe ST. L. RV. 749 If necessities arise in the future, however, which will require more ground, as before explained, there is nothing in this sec- tion that could be construed into an intention on the part of the legislature of limiting or restricting the railway to that particular number of feet. The only argument, if any at all could be made, in answer to the foregoing would be that, as the legislature, in section 39 of the charter (p. 23 herein), required that the railway should be commenced within three years after the passage of the act of incorporation and be h'nished within six years thereafter, that it intended thereby to limit the power of the railway to take or condemn land to that time. This is a very ingenious argu- ment, and has often before been advanced on such occasions, but the great weight of authority has always been adverse to this contention, holding that such clauses in charters of railway companies were aimed only at a speedy operation of the road, in order that the objects for which they are created should be accomplished namely, the convenience and accommodation of the public and that they in no manner prevented successive appropriations. 58 Md., 539; 5-i Pa. St., 103; Elliott on R. R., sec. 971. Should our state, therefore, follow the great weight of au- thority in such cases, when the question is properly presented, the railway may from time to time, as the expansion of its business requires, take additional land for right of way, termi- nal facilities, depot accommodations, side tracks, etc. To what states and branches does this apply P The foregoing section applies to all the states through which the road runs. See 87 Ala., 501; 85 Ala., 106; 87 Ky., 72. It also particularly applies to the following branches: The main branch, p. 1; Northwestern, p. 93 herein; Lebanon, p. 138 herein; Fay- etteville, p. 150 herein; McMinnville, pp. 179 and 194 herein; Huntsville, p. 214 herein; Jasper, p. 365 herein; and the Shelby ville Branch, p. 286 herein. It does not apply to those branches originally chartered under the general acts Tenn. 1875, if the proposed appropriation exceeds two hun- dred feet, as such roads are limited by their charters to two hundred feet, and can under no circumstances go beyond it. 17 Pick. (Tenn.), 95. 750 EMINENT DOMAIN. Railway may condemn land to broaden right of way for additional track, side tracks, etc., even in face of contract not to do SO. It is well settled that one board of directors of a railway cannot bargain away its right of eminent domain or curtail it in any way, so as to bind subsequent boards. If the right to condemn for this purpose originally existed, it cannot be taken away by contract. Thus it was held that the mere fact that a railroad had confirmed certain rights to a landowner by contract did not preclude it from condemning those rights. 102 Mass., 19. Again, where a railroad accepted from another a grant of a right of way across the grantor's road thirty feet wide, on the positive condition that it should only be used for two tracks, it was held that the grantee could, nevertheless, condemn an additional twenty feet if necessary to be occupied by more tracks. 113 111., 156. Again, it was held that, where a landowner dedicated certain land to a railway for a right of way on condition that no greater width should ever be taken, that even this did not estop the railway from condemning a broader strip when necessary. 87 Ky. , 72. The right of eminent domain cannot be impaired or defeated by any private contract between the corporation and the owner of property which the legislature may subsequently deem necessary for public use. 9 Ky. L. R., 924; 7 S. W. R., 553; 87 Ky., 72; Elliott on R. R., sec. 963; 44 Hun. (N. Y.), 194. A stipulation in a contract that no side tracks shall be built renders the entire contract illegal and void. 5 Col., 270; 6 Col., 2; 11 Kan., 602; 64 111., 414; 71 111., 592; 45 Mo., 212; 18 Pick. (Mass.), 472; 5 Ore., 117. How condemnation made now. Charter provision. The right to take property under the power of eminent domain, conferred in a charter, is an inviolable right that cannot be withdrawn by the legislature, nor surrounded with such condi- tions upon its exercise as will destroy its value. 14 Wend. (N. Y.), 51; s. c., 18 Wend. (N. Y.), 9; 31 Am. Dec., 313. ' ' But where a statute prescribed a mode by which lands may t.KNEUAL POWERS OF THE N. , C. & ST. L. BY. 751 be condemned to the use of chartered railways, and thereafter the legislature, by general act, prescribed a different mode, the company must proceed in the mode prescribed by the later act. Such a statute does not impair vested rights, but merely atfects remedies." Thompson on Corp., 5407, citing 3 S. C., 381; s. c., 16 Am. Rep., 721); 47 N. J. L., 59; s. c., 54 Am. Rep., 114; see also 5437, Thompson on Corp.; si Ky., 221. Hence to this extent section 24 of the charter of the Nash- ville, Chattanooga & St. Louis Railway may doubtless be altered by subsequent legislation. 12 Heis. (Tenn. ), 54; see also 85 Ky., 270; 81 Ky., 221. Subsequent legislation has provided general laws for the con- demnation of land, which will be found further on in this chapter. "As a rule, however, a general law does not repeal a prior special law merely because it embraces the same subject mat- ter. An intent to repeal the special law must be manifested either by express words or by language extending the opera- tions of the general law to all cases, etc. Accordingly a gen- eral law in regard to the assessment of damages in condemna- tion proceedings will not supersede the provisions of social charters on the subject, unless expressly made applicable to all cases of condemnation, or plainly intended as a revision of all prior laws, general and special, upon the subject/' Lewis on Em. Dom., 248; 34 Wis, 173; 25 N. J. L., 54; 5 Ind., 413; 36 N. J. L., 198; 25 Mo., 540. 95 N. C., 77; 3 S. C., 381. See also 3 Sneed (Tenn.), 119; 1 Head (Tenn.), 114; 3 Lea (Tenn.), 557; 3 Cold. (Tenn.), 438; 16 Lea (Tenn.), Ill; 3 Bax. (Tenn.), 152; 1 Pickle (Tenn.), 451; 4 Pickle (Tenn.), 138; 13 Pickle (Tenn.), 707; 5 Pickle (Tenn.), 723; 12 Pickle (Tenn.), 17; 157 U. S., 58; 109 IT. S., 556. Railway acquired a fee under section 24 of charter. Under this section, if the railway company paid or tendered the amount assessed by the commissioners as its value, the right of way immediately vested in the company in fee simple. 4 Sneed (Tenn.), 523 [280]. If condemna- tion is made now under general laws, only an easement is required. 752 EMINENT DOMAIN. Railway may condemn lands for lateral roads not exceeding eight miles, When. Under the general law of the State of Tennessee any railway company chartered under the laws of the state, and now operating, or which may hereafter operate any line of railroad within this state, is granted authority and power to build lateral roads, not exceeding eight miles in length, extending from the main stem of said line of railroad to any mill, quarry, mine, manufacturing plant, or the bank of any navigable stream, without the making of any amendment to the charter of said railroad: Provided, Private property shall not be taken for the uses of such company, or the construction of such lateral branches without condemnation thereof as now provided by law. Acts Tenn., 1895; p. 314. [As to method of condemning see post, this heading]. [Shannon's Code Tenn. ; 1872]. For method of condemning- for branches fifteen miles in length, see succeeding- section. The words "main stem " in the above act would doubtless be construed to apply not only to the main stem proper, but to all well established and important branches that were originally constructed under their own charters and subsequently pur- chased or leased by this company; as, for instance, the "North- western Branch," the " Centerville Branch," etc. These roads were originally the "main stem" of their re- spective companies. They were not purchased under a re- stricted authority to purchase branches, but under a broader authority to purchase other railroads. This being so the authority conferred by the legislature to purchase and operate other roads, would, by implication, constitute the roads so pur- chased a part of the main stem. In this connection it may also be added that all railroads chartered under the general law may amend their charters, so as to build branch roads. Acts Tenn., 1889, p. 303. This has no application to the N. & C. charter proper, however, as it was chartered by a special act. It may have applied to the charters of those branches incorporated under the general law, however. Railway may condemn land for lateral and branch roads fifteen miles in length, When. "Any railroad company oper- ating a railroad, or any part of same, in Tennessee, or that GENERAL POWERS OF THE X., C. & ST. L. UY. 753 may hereafter do so, shall have power to build or acquire lateral or branch lines of railroad, not to exceed fifteen miles in length, for any one of such lateral or branch roads, extending from its main stem in Tennessee, to any mine or quarry, or into any mineral section of country tributary to such main stem, for the purjx)se of developing the mineral or material resources of the country; and such railroads shall have power to condemn private proj^erty for use in the construction and operation of such lateral or branch roads; Provided, That private property shall not be taken therefor, against the owner's will, without condemnation thereof, as now provided by law in other cases, and such roads shall be, as common carriers, subject to the same duties and restrictions as the main lines with which they connect. ActsTenu., 1S99, p. 587, sec. 1. 1. The words "main stem" in the above act would also doubtless be construed to apply not only to the main stem proper, but to all well- established and important branches that were originally constructed under their own charter and subsequently purchased or leased by this company. For reasons, see preceding section. 2. For Alabama, Georgia, and Kentucky law on subject, see further on in this chapter. The above power does not authorize consolidation or exemption from tax. "Nothing in the above section shall be so construed as to make it lawful for any railroad corporation to purchase or consolidate itself with any competing line of railway, whether constructed or in course of construction ; And provided, That nothing in this act shall be construed to exempt railroad companies from paying state, county, or municipal taxes upon such extension or lateral branches. Acts Tenn., 1899, p. 587, sec. 2. Where lateral road is to extend from purchased branch, or railway, in whose name to condemn. It is a well established principle that when authority to take property by virtue of the power of eminent domain is conferred by the legislature, it becomes a personal trust, and cannot be delegated or trans- ferred, except by legislative sanction. 10 Gray, 40; 56 Pa. S., 413; 26 Wend., 485; Lewis on Em. Dom., sec. 243. Purchasers under a mortgage, grantees, or lessees of the 48 754 EMINENT DOMAIN. property and franchises of a corporation authorized to con- demn property cannot, by virtue of such purchase, grant, or lease, exercise such power. Being a personal trust, the power must be exercised by the grantee in person, and in case of a corporation, by the governing body, which ordinarily is the board of directors. 15 Ohio St., 21; 52 Col., 159; 145 Mass., 450; 109 Mass., 103; 26 Wend., 485; 111 Mass., 125; Lewis on Em. Dom., sec. 243. It would follow, therefore, that the right to condemn under the charter would die with the sale of the road unless provided otherwise by legislative sanction, and the purchasing road would have to act under its own charter and in its own name. There are eminent authorities that hold, however, that where corporate property and franchises are transferred by judicial sale the franchise to be a corporation does not pass, but that the right to condemn, whether considered as a franchise or not, passes as a valuable right necessary to the full enjoyment of the property. 83 N. C., 489. See, also, 93 U. S., 217; 34 Vt, 484. This doctrine has even been approved where the pur- chaser was not a corporation. 39 La. An. 427; 10 Ohio St., 372; Randolph on Em. Dom., p. 100, sec. 108. Where lateral road to extend from leased road; who to con- demn. A lease of the property and franchises of a corporation does not destroy its right to condemn. 35 Hun., 220; 99 N. Y. , 12. This is true, though the term of the lease is for the en- tire life of a corporation. The lease is but a mode of enabling the corporation to discharge its duties to the public. Lewis on Em. Dom., sec. 244; 67 N. Y., 227; 113 111., 156; 13 Neb., 361; Thompson on Corp., sec. 5895; 109 Mass., 103. Con- demnation, therefore, should be exercised by the lessee road in the name of the lessor. Same, Randolph on Em. Dom., p. 100, sec. 108. Or the lessee company may itself condemn. 99 N. Y., 12 ; 35 Hun., 220 ; 112 U. S., 609 ; Elliott on R. R., sec. 958. Railway may build branch roads to connect with other railways and condemn land therefor. All the railroads of the state have power to construct their roads so as to cross each GENERAL POWERS OF THE N., C. A ST. L. RY. 755 other, if necessary, by the main trunks or branches, or to unite with each other as with branches. ActsTenn. 1851-2, ch. 151, sec. 16; code Tenn. (8.), 1504; (M. & V.), 1249a. Under this, a railway company, authorized by its charter to condemn land, may condemn land to build a track connecting or uniting it with another railroad. 14 Lea (Tenn.), 65; 9 Bax. (Tenn.), 522. Right of railway to condemn, or appropriate country road Or COUnty highway. [See, also, "Highway."] It is unlawful for any corporation, or person, to construct or use an ordi- nary steam railroad for the transportation of freight and passen- gers upon any country road or county highway of this state, without the consent of the county court of the county in which said road lies; and, before it shall be lawful for the county court to give such consent, the corporation desiring to con- struct such railroad shall procure and file with the county court the written consent of the owners of the lands abutting upon such road or highway, aggregating in such abutting length at least one-half of all the lands in value, such value to be the value of said abutting lands, running back from said road two hundred feet upon both sides of the road to be occupied by said railroad; and any ordinary steam railroad constructed upon such county road or highway, without the consent of the said county court, first lawfully obtained, shall be considered a nuisance, and liable to be treated as such, both by the public authorities and by private persons. But, when the consent of said county court shall have been first lawfully obtained, such railroad may be lawfully constructed and operated upon such road or highway, under such restrictions as to the manner of construction and mode of use as the county court may see fit to impose in granting the license; Provided, That railroads already constructed upon any road or highway of this state, under a license of the county court, are hereby declared to be lawfully constructed, and this act shall not be construed as requiring a new license from the county court for such construction or operation under its provisions. Act Tenn. 1889, p. 447, sec. 1 [Shannon's code Tenn., 1879]. 756 EMINENT DOMAIN. The same act further provides "that this act shall not be construed so as to prevent said owners of land abutting upon such road from obtaining due compensation for damages arising from the construction of such railroad, such damages to be just compensation for all property taken, injured, or damaged by the building or operations of said railroad, said damages to be ascertained and paid before the right to appropriate the prop- erty to be occupied shall accrue as now provided by law. " Acts Tenn., 1889, p. 447, sec. 2; [Shannon's code Tenn., 1880]. These sections, however, do not apply to county roads or highways appropriated by the railway prior to its passage. Such roads were taken under the provisions of the charter of the company. Right of other roads to condemn right of way; depot facili- ties, yards, etc., of Nashville, Chattanooga & St. Louis Rail- way. It is a well settled principle of law that the lands once taken for a public use, pursuant to law, by one railroad com- pany, cannot, under general laws and without special authority from the legislature, be appropriated by another railway, or for any other public use, under the power of eminent domain. Lewis on Emi. Dom., p. 352, sec. 267; Randolph on Emi. Dom., pp. 88, 166; 93 Pa., 150; 124 Mass., 368; 53 N. Y., 574; 77 N. Y., 284; 98 N. Y., 6; 34 W. Va., 155; 23 Minn., 167; 53 Ga., 120; 48 Ohio St., 273; 82 Ala., 297; 122 111., 473; 84 N. Y., 308; 75 Va., 780; 47 Cal., 549; 98 Ga., 164. That the legislature of the state of Tennessee has never granted such authority so as to apply to the Nashville, Chatta- nooga & St. Louis Railway and present possessions is very clear. 1. By Acts Tenn., 1899, ch. 399, p. 920, railroads hereafter to be built were prohibited from taking a wider strip for a right of way than neces- sary, and other railroad companies were empowered to condemn a joint use of their tracks through narrow passes or gorges, or along cliffs. This act, however, expressly declared that it should only apply to roads hereafter to be built, and hence does not apply to the Nashville, Chatta- nooga & St. Louis Railway or any of its present branches. The act itself is set out further on in this chaptei and speaks for itself. 2. In Alabama railroads chartered under general law may condemn right of way of other roads, but not its roadbeds. 82 Ala., 297; 87 Ala., 501, 520. GENERAL POWERS OF THE N., C. A ST. L. RY. 757 It is true that 1549 of the code of Tennessee (M. & V.) provides that "any person or corporation authorized hy law to construct any railroad, turnpike, canal, toll-bridge, road, causeway, or other work of internal improvement, to which the like privilege is conceded, may take the real estate of indi- viduals, not exceeding the amount prescribed by law, or by the charter under which the person or corporation acts, in the manner and upon the terms herein provided." Code Tenn. (M. & V.), $ 1549. It is further true that by the acts of Tenn. 1885, p. 245, this section was amended so as to make it include the condem- nation of property, privileges, rights, and easements of private corporations for public purposes, under certain conditions, but neither the section nor its amendment confers the right, in O * express terms, to condemn property already devoted to railroad uses. The power, therefore, does not exist in Tennessee. The right of eminent domain is a dominant legislative power, only called into exercise by the enactment of a valid statute, and when a party asserts a right to seize land previously ap- propriated to public use, he must sustain his claim by produc- ing a statute clearly conferring the asserted authority. It will not be presumed, in the absence of such a statute, that the leg- islature intended to again seize property which had l>een once appropriated for a public use. 88 Ind., 453; 6 So. R. , 404; 118 Mass., 561; 8 Fed. Rep., 858; 68 N. Y., 167, 175; 36 Conn., 255; Lewis on Em. Dom., 352, 364; Randolph on Em. Dom., 88, 166; Elliott's Roads and Streets, 167; 89 Ga., 215; 20 Hun. (N. Y.), 201; 98 Ga., 164. Nor will the authority be presumed to exist, in the absence of such a statute, to condemn for a joint use with the elder company. 81 111., 523. This is so, whether the lands were originally bought or con- demned. 17 R. I., 324; 21 Atl. Rep., 965. The rule, moreover, is not confined to the tracks or right of way of a railroad company, but it applies also to the grounds occupied by all the appliances necessary for the successful operation of the road, and the company has the right to con- 758 EMINENT DOMAIN. struct its road and make its plans with a liberal consideration of future, as well as of existing, necessities. 28 Am. & Eng. R. R'. Cases, 266; 122 Pa. St., 511; 6 All. Rep., 564; 9 Am. St. Rep., 128; 30 Minn., 359; 91 N. Y., 552; Lewis on Em. Dom., p. 352, sec. 266. But land held by the railway, whether acquired by purchase or appropriation, which is not employed in nor needed for the proper exercise of its corporate franchise, having regard to the probable expansion and increase of future business, is not within the reason or operatioii of this rule, and may be taken by other railways under the power of eminent domain. 47 Am. & Eng. R. R. Cases, 72; 48 Ohio St. 273;' 27 N. E. Rep., 464; 17 W. Va., 812; 66 111., 174; Lewis on Em. Dom., p. 353; sec. 267. It has also been held that property acquired by a railroad company by contract, and used for a purpose for which it could not condemn, is subject to the power of eminent domain the same as though it belonged to an individual. 19 Ohio St., 299; Lewis on Em. Dom., p. 355; sec. 269. It is very clear, however, as before explained, that as regards all property and right of way necessary for railway purposes, having regard to the probable increase and expansion of future business, that no law now exists in Tennessee which would enable one railroad to arbitrarily condemn the whole, or even a part, of the right of way, depot facilities, shops, etc., of an- other railroad. Moreover, it is extremely doubtful whether such a right now exists, even though that part of the right of way sought to be appropriated should be actually necessary, and without which the condemning road could not get from one of its termini to the other, as, for instance, through a mountain pass where there was no other possible route. But even should this latter right exist, it must be clearly shown that the property so sought to be condemned is actually necessary. 138 Mass., 277; Lewis on Em. Dom., 353; 16 Phila. (Pa.), 621; 122 Pa. St., 533; 17 Atl. Rep., 234; 124 Mass., 368; 9 Am. St. Rep., 128. GENERAL POWERS OF THE N., C. th to the railway and to 764 EMINENT DOMAIN. the landowners at those points along the right of way where the railway does not own the fee. The railroad company owns the fee if it condemned under section 24 of its charter. 4 Sneed (Tenn.), 528 [280]. This is so, as by operation of law where the parties did not apply in time for assessment, the railway only took from the landowner the one hundred feet on each side of the center of the track, as an easement. It did not take the fee, and when the telegraph or telephone companies attempt to condemn a right of way it will be attempting to subject the land to another and a different servitude not contemplated in the original con- demnation proceedings, and for that reason the landowners, heirs or assigns, will be entitled to additional compensation. See 17 Pick. (Tenn.), 62. The condemnation proceedings, however, will have to be in- stituted in every county through which the telegraph or tele- phone companies propose to run their lines. Railroads hereafter to be built, not to take wider strip for right of way than necessary. Other roads, rights as to, When. No railroad company, whose railroad may hereafter be built in this state, shall have the right to hold to the exclusion of other railroads to be hereafter built, by purchase or condem- nation for its right of way, a wider strip of land than shall be necessary for its reasonable use in the transaction of its busi- ness; and any land owned, or right of way held, or hereafter acquired by any such railroad company, which a jury of inquiry in condemnation proceedings shall find necessary for such rea- sonable use and business of the company, may be condemned for the use of other railroads now under construction, or hereafter to be built, in like manner as other private property. And no railroad company shall have the right, by surveying or locating its line of railroad, to defer building the same to the exclusion of other companies that may sooner and more certainly build upon such line of route, but the company which, in good faith, first actually constructs its road over such route, shall have preference in the location thereof; Provided, That, if in determining any controversy over same, it shall appear to the GENERAL POWERS OF THE N., C. A 8T. L. KV. 7 ''>.". court that the second company, in good faith, intends to, and probably will construct its road, the first line constructed shall be located, if practicable, so as not to make it unreasonably ex- pensive to construct the other one. Acts Tenn. 1899, ch. 399, p. 920, sec. 1. It will be noticed that the above act only applies to railroads "here- after to be built " and hence does not apply to the Nashville, Chatta- nooga & St. Louis Railway, and present branches. Other roads may condemn joint use of tracks in narrow passes, gorges, or along cliffs of future roads, when and how. In case any railroad company has acquired or owns a right of way, over which its road is not already built, through or along any narrow pass, cliff, or gorge, where it may be un- reasonably expensive or impracticable to put down more than one track or line of railroad, any other railroad company, in good faith, desiring to build its line of road through or along the same narrow pass, cliff, or gorge shall have the right to condemn a joint use of the right of way through or along the same, and if, after any railroad hereafter to be constructed through or along the same shall already have been constructed, any other railroad so desiring to build through or along such narrow pass, gorge, or cliff shall have the right to condemn a joint use of so much of the track as may be necessary, in like manner as railroads have the right to cross each other; Pro- vided, That reasonable condensation shall be paid to the rail- road company owning such right of way, or to the one whose right of way, or right of way and track, may be so condemned for such joint use with the other road, for its property and improvements and injury to its business, if any, which com- pensation, together with such reasonable restrictions as the jury of inquiry may prescribe at the expense of the second road for safely using such joint track, shall be fixed by said jury as in other cases of assessment of damages in the condem- nation of private property; Provided further, That nothing herein contained shall be construed to affect any rights railroad companies whose roads are already constructed and being op- erated may have in respect to rights of way over which rail- 766 EMINENT DOMAIN. roads are already being operated, it being the intention of this act not to in any manner add to or take from such rights as they may have therein, but to mutually apply only to roads or extensions or branch roads hereafter to be built; And provided furthermore, That nothing herein contained shall be construed to allow any railroads to consolidate, or escape pay- ment of taxes on such new lines as may be constructed, or such extensions as may be made hereunder. Acts Tenn. 1899, ch. 399, p. 920, sec. 2. It will be noticed that the above act only applies to railroads "here- after to be built," and, hence, does not apply to the Nashville, Chatta- nooga & St. Louis Railway and present branches. HOW LAND MAY BE CONDEMNED. [in Tennessee.] Land may be taken for improvements. Any person or corporation authorized by law to construct any railroad, turnpike, canal, toll- bridge, road, causeway, or other work of internal improvement to which the like privilege is conceded, may take the real estate of individuals not exceeding the amount prescribed by law, or by the charter under which the person or corporation acts, in the manner and upon the terms herein provided. Code Tenn. (M. & V.) 1549 (1325); [Shannon's code Tenn. 1844.] By acts of Tenn. 1885, p. 245, this section, together with those follow- ing-, up to and including sec. 1572, were extended so as to include the condemnation and taking the property, privileges, rights, or easements of private corporations for public purposes or internal improvements. There is a provision, however, in the act as to telegraph and telephone companies, which is here omitted as it does not affect railroads. Rail- ways may condemn land under this for depots, way of approach, etc., 11 Hum. (Tenn.), 349. This section does not apply to private enter- prises, however great their public convenience. 4 Cold. (Tenn.), 419. Hence it does not apply to freight elevators. Id. ; 4 Pick. (Tenn.), 752. The land of persons under disability may be taken like that of other people. 3 Head (Tenn.), 63. By acts Tenn. 1885, ch. 39, p. 94, cities were allowed to condemn land under these sections adjacent to corporation line for waterworks pur- poses, pumping station or reservoir, right of way for water pipe from pumping station or reservoir, etc. By acts of Tenn. 1891, ch. 41, p. 77, municipal corporations allowed to condemn under these sections for new streets, avenues, squares, parks, GENERAL POWERS OF THE N., C. A 8T. L. RY. 767 promenades, sewers, gasworks, hay markets, markethouse, tire engine house, station and workhouses, etc . Hy acts Tenn. 1889, ch. 140, p. 389, street railways allowed additional privileges of condemnation under these sections. Counties may condemn land under these sections for turnpikes, etc. 8 Pick. (Tenn.), 1. For what railroads may, and may not, condemn under these sections. A railroad company may condemn land for its right of way; for a way of approach to its road; and for a depot, but not for depositories, storehouses, houses for agents, work- shops, etc. 11 Hum. (Tenn.), 349-52. But see discussion of this in first part of heading " Eminent Domain." No legislative power to authorize condemnation for certain enterprises. Under these sections, as for instance, a saw mill and paper mill combined. 3 Yer. 41, 51-54. A railway for an incorporated elevator company, from its sheds to a river, for loading and unloading boats, 4 Cold. (Tenn.), 419. A railway for an incorporated hotel company, from the hotel to the river or depot. 4 Cold. (Tenn.), 425. A church or schoolhouse. 4 Cold. (Tenn.), 425. But property may be condemned for grist mills. 3 Yer. 41, 51-53; Code Tenn., (M. & V.), 2653; [Shannon's Code (Tenn.), * 3437]. Telegraph and telephone companies. These companies may also condemn land under these sections. They may condemn use of railroad right of way. Only nominal damages to be paid where use of railroad not interfered with. 17 Pick. (Tenn. ), 62, 95. Proceedings, petition, etc. The party seeking to appropriate such land shall file a petition in the circuit court of the county in which the land lies, setting forth in substance: 1. The parcel of land, a portion of which is wanted, and the extent wanted. As to sufficiency of description see 3 Lea, 482. 2. The name of the owner of such land, or, if unknown, stating the fact. 3. The object for which the land is wanted. 4. A prayer that a suitable portion of land may be decreed 768 EMINENT DOMAIN. to the petitioner, and set apart by metes and bounds. Code Tenn. (M. & V.), 1550 (1326); [Shannon's Code (Tenn.), 1845]. Opening and closing case. The burden of proof being upon the party seeking the condemnation to show the necessity thereof, he is entitled to open and close the case. 4 Pick. (Tenn.), 510. See Iowa Code 1851, \ 760. Petition need not be sworn to. 2 Iowa, 562. Notice to Owner. Notice of this petition shall be given to the owner of the land, or, if a nonresident of the county, to his agent, at least five days before its presentation. Code Tenn. (M. & V. ), 1551 (1327); [Shannon's code (Tenn.), 1846]. Owner nonresident, proceeding. If the owner is a nonresi- dent of the state, or unknown, notice shall be given by publica- cation, as provided in this code in similar cases in chancery. Code Tenn. (M. & V.), 1552 (1328); [Shannon's code (Tenn.), 1847]. Proceedings Only bind parties. All parties having any in- terest in any way in such land may be made defendants ; and the proceedings will only cover and affect the interest of those who are actually made parties, unborn remainder- men being, however, bound by proceedings to which all- living persons in interest are parties. Code Tenn. (M. & V.), 1553 (1329); [Shannon's code (Tenn.), 1848]. As to parties, see 2 Head, 65, 176. A tenant for life, or for years, as well as the owner of the reversion, is an interested party, and must be compensated. Same. Writ Of inquiry Of damages. After the requisite notice has been given, if no sufficient cause to the contrary is shown, the court shall issue a writ of inquiry of damages to the sheriff, commanding him to summon a jury to inquire and assess the damages. Code Tenn. (M. & V.), 1554 (1330); [Shan- non's code (Tenn.), 1849]. Clerk to issue writ ; sheriff to summons jury. By consent of parties, or on application of the plaintiff, unless objection is made by the defendant, the writ of inquiry may be issued by the clerk, as of course, after service of notice, on which the sheriff will summon the jury. Code Tenn. (M. & V.), 1555 (1331); [Shannon's code (Tenn.), 1850]. GENERAL PoUKKS <>F THE N., C. A ST. L. HY. 7>.' Jury tO be disinterested. The jurors shall not lie interested in tli<- siune, or a similar question, and shall jx>ssess the quali- tici tit >ns of other jurors, and may be nominated by the court, selected by consent of parties, or summoned by the sheriff. ('<>.!< Tenn. (M. & V.), 1556 (1332; ; [Shannon's code (Tenn.), 1851]. Failure tO attend. If named by the court, and the Arsons iwmt'd are unable to attend when summoned, the place of such persons shall be supplied by the sheriff. Code Tenn. (M. & V.), 1557 (1333); [Shannon's code (Tenn.), 1852]. Number of jurors; challenges. The jury will consist of five persons, unless the parties agree upon a different number, and either party may challenge for cause, or peremptorily, as mother civil cases. Code Tenn. (M. & V.), 1558 (1334); [Shannon's code (Tenn.), 1553]. Where five were appointed by the court, but two having failed to appear, the sheriff summoned two others in their stead, and the report was signed by the original three, it was held good. 12 Heia. (Tenn.), 54. 57. Notice Of taking inquest. The sheriff shall give the parties, or their agents, if residents of the county, three days' notice of the time and place of taking the inquest, unless the time has been fixed by the order of court. Code Tenn. (M. & V.), 1559 (1335); [Shannon's code (Tenn.), 1854]. Jury tO be SWOrn by Sheriff. The jury, before proceeding to act, shall be sworn by the sheriff, fairly and impartially, without favor or affection, to lay off by metes and bounds the lands required for the proposed improvements, and to inquire and assess the damages. Code Tenn. (M. & V.), 1560 (1336); [Shannon's Code (Tenn.), 1855]. To examine ground and assess damages. The jury will then proceed to examine the ground, and may hear testimony, but. no argument of counsel, and set apart, by metes and bounds, a sufficient quantity of land for the purposes intended, and assess the damages occasioned to the owner thereby. Code Tenn. (M. & V.), 1561 (1337); [Shannon's Code (Tenn.), 1856]. 49 770 EMINENT DOMAIN. As to sufficiency of description, see 3 Lea, 48?. This was a case on trial in circuit court. The roadbed is a, permanent landmark, and the description is sufficient where the jury designate the distance from the center of the railroad track on each side. 3 Lea {Tenn. ), 482. But the points of beginning and ending on the road should be designated in some way. Where railway fails to institute proceedings, or in any manner to des- ignate the land to be appriated for the right of way, its entry and con- struction of its road must be regarded as an appropriation of so much of the land as the law authorizes for such purposes. 3 Lea (Tenn.), 481. Damages ; hOW estimated. In estimating the damages the jury shall give the value of the land without deduction, but in- cidental benefits which may result to the owner by reason of the proposed improvement may be taken into consideration in estimating the incidental damages. Code Tenn. (M. & V.), 1562(1338); [Shannon's Code, (Tenn.), 1857. " The value of the land " is the fair cash value of the land taken for public use, if the owner were willing to sell, and the company desired to buy that particular quantity at that place and in that form. 2 Swan (Tenn), 437; 9 Heis. (Tenn.), 508; 12 Heis. (Tenn.), 56; 9 Heis. (Tenn.), 509; 3 Head (Tenn.),' 67, 600; and this too without deduction. See also 4 Pick., 510. Only nominal damages where telegraph company condemns use of railroad right of way when. 17 Pick., 62. In ascertaining the value of the land, incidental benefits and advantages are not to be considered, but they are to be coasidered and set off- against incidental damages. 2 Swan (Tenn.), 437, and cases cited above. Incidental benefits are : The general enhancement of lands in the neighborhood; the special effect of a location at that particular place; the enhancement in price of the remainder of the land, and the increased facilities of travel, etc. See also 4 Pick. (Tenn. ), 510. Incidental damages are : The necessity for new fences; removal of buildings; being cut off from wells, mills, barns, servants' houses, etc.; 2 Swan (Tenn.), 439-40; 12 Heis. (Tenn.), 56; 9 Heis. (Tenn.), 508. Incidental damages, resulting to landowner from the taking of a por- tion of his lauds, must be estimated upon the assumption that the lands taken will be applied, within a reasonable time and in a proper manner, to the use for which they were condemned, and that due care and proper skill will be exercised in the manner of their use. 4 Pick. (Tenn.), 510. Where damage results to other property from wrongful or negligent use, original suit must be brought. 4 Pick. (Tenn.), 510, 523-26; 7 Lea (Tenn.), 388; 11 Lea (Tenn.), 382. Depreciation of remaining land caused by the reasonable apprehen- sion of danger, excited by the erection of a reservoir upon the part taken, on account of its liability to inherent defects and unavoidable accidents, GENERAL POWERS OF THE N., C. A ST. L. RY. 771 notwithstanding skilful construction and careful operation, is properly incidental damages. 4 Pick. (Tenn.), 510. Interest allowed upon amount of damages assessed from the taking and appropriation of the land. 4 Pick. (Tenn.), 510. Where it has not been allowed in the court below, however, and should have been, the supreme court may correct the judgment in that particular without reversing and remanding case. liJ. The inquiry as to fair market value, in cash, must be restricted, both in evidence and the court's charge, to the general value of the land, estimated upon consideration in a single view of all the elements of value. Estimates based upon particular qualities or capabilities of the land such as its value as a stone quarry, or its suitableness for a reservoir site, to the exclusion of all other elements of value, are inad- missible. Such elements of value must not be priced separately, but the land, with all its qualities and capabilities, must IK- taken and valued as one whole. 4 Pick. (Tenn.), 510. Separate action for overflowing lands. To recover damages for care- less, negligent, or wrongful use of property taken, independent action must be brought. Hence, where railway negligently constructs its road- bed so as to dam up the surface water, or any stream causing overflow of adjoining lands, it is liable, but independent action must be brought. 7 Lea (Tenn.), 388; 11 Lea (Tenn.), 382; 6 Pick. (Tenn.), 157; 4 Pick. (Tenn.), 5 '23. Overflow for twenty years gives right, however. Id. Report returned in writing. The report of the jury shall be reduced to writing, signed by a majority of the jurors, delivered to the sheriff, and by him returned into court. Code Tenn. (M. & V.), \ 1563, (1339); [Shannon's Code (Tenn.) 1858]. Confirmation Of report. If no objection is made to the report, it is confirmed by the court, and the land decreed to the petitioner, upon payment to the defendants, or to the clerk for their use, of the damages assessed, with costs. Code Tenn. (M. & V.), 1564, (1340); [Shannon's Code (Tenn.), 1859]. Exception tO report and new writ. Either party may object to the report of the jury, and the same may, on good cause shown, be set aside and a 'new writ of inquiry awarded. Code Tenn. (M. & V.), 1565, (1341); [Shannon's Code (Tenn.), I860]. Appeal ; new trial. Either party may, also, apj>eal from the finding of the jury, and on giving security for the costs, have a trial anew before the jury in the usual way. Code Tenn. (M. & V.), 1566, (1342); [Shannon's Code (Tenn.), 1861J. Appeal lies, although there was a second jury and new writ of inquiry, under the last section. 12 Ileis. (Tenn), 57. 772 EMINENT DOMAIN. Costs against appellant, when not. if the verdict of the jury, upon trial, affirms the finding of the jury of inquest, or is more unfavorable to the appellant than the finding of such a jury, the costs shall be adjudged against such appellant; otherwise, the court may award costs as in chancery cases. CodeTenn. (M. & V.), 1567 (1343); [Shannon's code (Tenn.), 1862]. Appeal does not Suspend work ; how. The taking an appeal does not suspend the operations of the petitioner on the land, provided such petitioner will give bond, with good security, to be approved by the clerk, in double the amount of the assess- ment of the jury of inquest, payable to the defendants, and conditioned to abide by and perform the final judgment in the premises. Code Tenn. (M. & V.), 1568 (1344); [Shannon's code (Tenn.), 1863]. Preliminary surveys; damages. A person or company actually intending to make application for the privileges herein contemplated, and entering upon the land of another for the purpose of making the requisite examination and surveys, and doing no unnecessary injury, is liable only for the actual dam- age done, and, if sued in such case, the plaintiff shall recover only as much costs as damages. Code Tenn. (M. & V.), 1569 (1345); [Shannon's code (Tenn.), 1864]. Damages to be prepaid, or bond on appeal. No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way until the damages assessed by the jury of inquest and the costs have been actually paid, or, if an appeal has been taken, until the bond has been given to abide by the final judgment, as before provided. Code Tenn. (M. & V.), 1570 (1346); [Shannon's code (Tenn.), 1865]. If the damages are not paid, or bond given as provided for when an appeal is taken, equity will enforce payment, or restore the owner to his property. 6 Cold. (Tenn.), 150, 162; 7 Heis. (Tenn.), 518, 535. See also notes to \ 1562, (M. & V.) code Tenn. Construing 1 this and the next section together, the property may be taken before compensation is actually paid, but only after certain pro- vision has been made for the payment. Id.; 13 Lea (Tenn.), 671. GENERAL POWERS OF THE N., C. erty, along which no one has the right to travel except by permission of the owner. A person on the track not at a public crossing, may, on refusing to get on* after warning, be removed by all the means the owner of a freehold can employ to eject an in- truder. 62 Ala., 305. Width of right of way in absence of condemnation. If land is deeded to a railway company for a right of way and no mention is made therein as to its width the law presumes the statutory width was intended. 98 Ala., 647. See also 3 Lea (Tenn.), 478. If no deed or condemnation, then the entry and construction of the road would doubtless be considered as an appropriation of the statutory width. See 3 Lea (Tenn.), 478. Adverse possession Of right Of way. Where a railroad company locates its right of way over a strip of land, and, entering thereon, throws up embankments, prepares its road- bed through the entire tract, and exercises acts of ownership over .it, it must be considered as acquiring thereby adverse possession of the strip for railroad purposes. 109 Ala., 377. As to what constitutes abandonment of right of way, see 109 Ala., 448. 776 EMINENT DOMAIN. Power to acquire property does not authorize purchase of competing steamship line. 58 Ala., 241. Successive appropriation for right of way. The right of successive appropriation for right of way is recognized in Ala- bama. 87 Ala., 501. See also discussion of similar heading on Tennessee law herein, on p. 745 et seq. of this chapter. May condemn for branch roads, when. See pp. 639 and 640 herein. Right of other roads to condemn right of way, depot facil- ities, yards, etc., of Nashville, Chattanooga & St. Louis Rail- way. in Alabama railroads chartered under the general laws may condemn right of way of other roads, but not their road- bed. 82 Ala., 297; 87 Ala., 501-20. See also discussion of similar heading under Tennessee law in this chapter, p. 756 herein. May condemn intersection, connection, and crossing of Other railroads. See section 21, of article XIV., of Alabama state constitution, p. 102 of code Ala. 1896. See also " Cross- ings" herein, on pp. 710-714. See also 1165, 2445, code Ala., 1896. Cities may authorize railroads to build tracks across or through streets and alleys. 116 Ala., 51. Railroads of Alabama are public highways. See 3459, code Ala. 1896. Forfeiture of franchise by nonuser. Railroad corporations organized under chapter 28, of article VI., of the code of Ala- bama, 1896, forfeit their franchises and cease to exist by non- user of their franchises for five consecutive years. Right of telegraph companies to erect lines along railroad right Of way. It is provided by the laws of Alabama that "any telegraph company, incorporated under the laws of this or any other state, shall have the right to construct, maintain, and operate lines of telegraph along any of the railroads or other public highways in .this state; but such lines of telegraph shall be so constructed and maintained as not to obstruct or hinder the usual travel on such railroad or other highway." Code Ala. 1896, 1244. GENERAL POWERS OF THE N., C. A ST. L. RY. 777 HOW LAND CONDEMNED IN ALABAMA. Application to court of probate for order of condemnation. Any corjx)ration organized under the laws of this state, or any person, or association of persons, proposing to take lands, or to acquire an interest, or easement therein, for any uses for which private property may be taken, may, if there be no other mode of proceeding prescribed by law, apply to the court of probate of the county in which such lands, or a material portion thereof, may be situate, for an order of condemnation thereof to such uses. Code Ala., 1896, 1712. 1. The question of the power of an applicant to condemn is one of law, and for the court. London v. Sample LumJter Co., 91 Ala., 606. Probate court has jurisdiction of an application made by a railroad organized under the general law, to condemn for right of way a part of the right of way of another road, but not of the road-bed. A. A C. R. Co. v. J. A A. R. Co., 82 Ala., 297; M. & O. R. Co. v A. If. Ry. Co., 87 Ala., 501; M. A O. R. Co. v. A. M. Ry. Co., 87 Ala.. 520. But not of a like application by a street railway without special statutory authority. L. & N. R. Co. v. People's S. R. A L Co., J01 Ala., 331. A railroad is not bound to adhere to a condemned right of way, but may proceed to further condemnation. Cooper v. A. A A. R. Co., 85 Ala., 106. On appeal, the application may be amended in the circuit court so as to include more land than originally asked. Newton v. A. M. Ry. Co., 99 Ala., 468. A corporation entering on lands without the consent of the owner, and without proceedings for condemnation, is a trespasser. N. 0. AS. R. Co. v. Jones, 68 Ala.. 48; 8 c., 70 Ala., 227. Having acquired possession by trespass, and improved the property, the corporation may still institute proceedings for its condem- nation. Jones v. N. O. A S. R. Co., 70 Ala. 227. 2. Right to condemn on purchased road. The N., C. fe St. L. Ry. has purchased several roads in Alabama, together with their rights, powers, privileges, and franchises. In such cases, the power of the N. , C. & St. L. Ry. to condemn on the line of such roads would depend also upon the law of its organization. In other words, as to the line of such roads, the N., C. & St. L. Ry. would be vested with all the powers and privileges, and subject to all the duties and liabilities, of said original company. If the road so purchased had any particular rights in this re- gard, then the N., C. & St. L. Ry. would also possess them on this line. 15 Lea (Tenn.), 37; 112 U. S., 610; see also, case of Royer* v. .V., C. A St. L. Ry., decided, November 9, 1898, by the United States circuit court of appeals, sitting at Cincinnati, but which case has not yet been reported. The charter would not control absolutely, for, though a statute pre- scribes a mode by which land may be condemned, if thereafter the leg- islature, by general act, prescribes a different mode, the company must 778 EMINENT DOMAIN. proceed in the mode prescribed by the latter act. Such a statute does not impair vested rights, but merely affects remedies. Thompson on Corp., sec. 5407; 81 Ky., 221; 12 Heis. (Tenn.), 54; 85 Ky., 270; 47 N. J. L., 59; 54 Am. Rep., 114; Thompson on Corp., sec. 5437. Application and Contents. The application must be in writ- ing, verified by the oath of the applicant, or by the oath of an agent or attorney, and accompanied with security for the costs, and must state with certainty the name and residence of the applicant, the uses or purposes for which the land is to be taken, or the interest or easement therein to be acquired, and must state the name and residence of the owner, if known, or, if unknown, must show that reasonable diligence has been used to ascertain the same. Code Ala., 1896, 1713. The application must describe the lands sought to be taken with suffi- cient precibion to enable a skillful person to locate it. Brown v. R. & D. R. Co., 86 Ala., 206; London v. Sample Lumber Co.. 91 Ala., 606. Applica- tion may be amended on appeal to the circuit court so as to include more land. Newton v. A. M. Ry. Co., 99 Ala., 468. A second application may be filed to condemn another right of way, although one has already been awarded applicant. Cooper v. A. & A. R. Co., 85 Ala., 106. If payment be not made of the assessed damages within six months, applicant may file a second application to condemn the same lands. A. M. Ry. Co. v. Neivton, 94 Ala., 443. Order of court on filing applications ; notice. On the filing of the application the court must make and enter an order ap- pointing a day for the hearing thereof, and if the owner of the lands resides in the state, must issue to him notice of the appli- cation, and of the day for the hearing thereof, which must be served by the sheriff, or other legal officer, at least ten days before the day appointed for the hearing; if the owner be un- known, or if he resides without the state, notice must be given by advertisement in some newspaper published in the county, or if there be no newspaper published in the county, by post- ing notice at the courthouse door, and three other public places, for at least three weeks before the day appointed for the bear- ing. If the owner be an infant, or be of unsound mind, notice must be served on his guardian, if any he have, resident in the state; but if he resides in the state, and has no such guardian, then upon the person who may have him in charge, or with GENERAL POWERS OF THE N., C. A ST. L. RY. 779 whom he may reside; if the owner l>e dead, and the lands are in the possession or under the control of his j>ersonal represent- ative, notice must be served on such representative, and on the heirs at law of the decedent. Code Ala., 1896, g 1714. Married women clause stricken out by joint committee. Infants ; persons of unsound mind. if the owner of the lands he an infant, or is of unsound mind, the court, on the day appointed for the hearing, must appoint a guardian ad I item to represent him, and the guardian so appointed must tile a writ- ten acceptance of the appointment, must appear and protect the rights and interests of such infant, or person of unsound mind; and, if he deems it necessary, may employ counsel to assist him; the compensation of such guardian and of his coun- sel must be ascertained by the court and taxed as costs of the proceeding. Code Ala., 1896; 1715. Damages should not be paid over to the guardian ad Utem. Broitm v. B. A D. R. Co., 86 Ala., 206. Owner not appearing. If the owner does not appear on the hearing of the application, the court must hear the same, and if the application be granted, must appoint commissioners as herein provided for, and thereafter the same proceedings shall be had as if such owner had appeared. Code Ala., 1896; 1716. Allegations, objections and proof to be heard ; appeal. On the day appointed, or any other day to which the hearing may be continued, the court must hear the allegations of the appli- cation, and any objections which may be tiled to the granting thereof, and any legal evidence touching the same, and shall make an order granting or refusing the application. The hear- ing herein provided for must in all respects be conducted and evidence taken as in civil cases at law, and either party may, by bill of exception, reserve any opinion or decision of the court as in cases in which bills of exception are allowed in civil cases at law; and either party is entitled to an appeal to the supremo court from the order of the court granting or re- fusing the application within thirty days from the making thereof. Code Ala., 1896; 1717. See citations to section 1720. 780 EMINENT DOMAIN. If application granted ; commissioners appointed ; damages assessed. If the application be granted, the judge of probate must appoint three citizens of the county in which the lands sought to be condemned are situated, who shall possess the qualifications of jurors, who shall be disinterested, and who shall be required to file a certificate along with their ward that neither of them have ever been consulted, advised with or ap- proached by any person in reference to the value of the lands, or the proceedings to condemn the same, prior to the assess- ment of damages, and that they knew nothing of the same be- fore their appointment ; and the judge of probate is authorized to fill any vacancy occasioned by death, resignation, failure to act, or any disqualification of any of such commissioners from interest, prior knowledge of the subject-matter, or by being consulted, advised with or approached in reference to the con- demnation of such lands prior to appointment, or to the assess- ment of damages. When the court shall have appointed the commissioners as herein provided, it shall at once issue notice of such appointment to the sheriff, whose duty it shall be to serve such notice upon the person therein designated within five days of the receipt thereof, and the sheriff shall receive the same compensation for serving such notice as allowed for sum- moning jurors. It shall be the duty of the commissioners, or a majority of them thus appointed by the judge of probate, to assess the damages and compensation to which the owner of the lands is entitled, and they shall be sworn as jurors are sworn. The commissioners may view the lands to be subjected, and must receive all legal evidence that may be offered by either party touching the amount of the damages the owner of the lands will sustain and the amount of compensation he is entitled to receive ; but the amount of compensation to which the owner is entitled must not be reduced or diminished because of any incidental benefits which may accrue to him, or to his remain- ing lands in consequence of the uses to which the land proposed to be taken, or in which an easement is proposed to be acquired, will be appropriated. But nothing in this section shall be con- strued to prevent any applicant for the condemnation of land. GENKHAI. I'OUKK- OF THE X., C. A ST. L. KY. 7M I <>r any landowner whose land is sought to be condemned, from Ix'inir present in person, or by attorney, at any of the proceed- ings or trials provided for in this article. Code Ala. 1896, .: 1718. Commissioners are regarded as an inferior statutory tribunal. .V. 8. Ry. Co. v. Say re, 72 Ala., 443. The owner of attingcnt property injured by the construction of a railroad embankment on its right of way is en- titled to damages, but this right does not pass to the vendee. Evann v. S. A M'. Ry. Co., 90 Ala., 54. The measure of damages is the value of the land ut the time of the actual taking, and the diminution in value of contiguous lands. Hooper v. S. A M. R. Co., 69 Ala., 529; Jones v. X. O. A S R. Co,, 70 Ala., 227. And this when the land was taken by a tres- passer who had erected valuable improvements. N. O. & S. R. Co. v. Jones, 68 Ala., 48; B.C., 70 Ala., 227. The value at which the owner as- sesses the land for taxation is admissible as evidence of value, but is not conclusive. Blrmlinjluim Mln. R. Co. v. Smith, 89 Ala., 305. See also citations to constitution, article 14, sec. 7. Report Of the commissioners. The commissioners must, within ten days from their appointment, report in writing to the court the amount of the damages and compensation ascer- tained and assessed by them, and, thereupon, the court must order the same to be recorded, and must make an order of con- demnation in pursuance thereof upon payment of the damages and compensation so assessed and reported, or the deposit of the same in court. Code Ala. 1896, sec. 1719. 1. The words "or the deposit" inserted by joint committee. 2. Irregular, unauthorized, and void order. 91 Ala., 606. Appeal from assessment of damages. Either party may appeal from the assessment of damages and compensation by the commissioners to the city or circuit court of the county within thirty days after the making of the order of condemnation upon the report of the commissioners, by tiling in the court rendering the judgment a written -notice of appeal, a copy of which shall be served on the opposite party, and on such appeal the trial shall be / novo; but no appeal shall suspend the judgment if the applicant shall give bond, with good and sufficient surety, to be approved by the judge of probate, to pay such judgment as shall be rendered on appeal. Code Ala. 1896, 1720. An appeal and trial by jury of twelve must be secured; appeal under 782 EMINENT DOMAIN. this section must be taken from probate to city or circuit court. Mont- gomery S. Ry. v. Sayre, 72 Ala.. 443; Woodard I. Co. v. CaJtxinlss, 87 Ala., 328; Postal T. C. Co. v. A. G. S. R. Co., 92 Ala., 331; A. M. Ry. Co. v. New- ton, 94 Ala., 443; M. & C. R. Co. v. B. S. & T. R. Ry. Co., 96 Ala., 571; L. & N. R. Co. v. Peoples' S. Ry. & I. Co., 101 Ala., 331; M. & C. R. Co. v. Hopkins, 108 Ala., 159. See also citations to constitution, article 14, sec. 7. Order of condemnation; effect of appeal. The order of condemnation upon the payment of the sum ascertained and assessed by the verdict of the jury, or the deposit thereof in court for the defendant, shall vest in the applicant the ease- ment proposed to be acquired for the uses and purposes stated in the application, and for no other uses or purposes. But, if an appeal shall be taken by either party, then the person, cor- poration, or association seeking to acquire such right of way, upon the deposit in the court, for the party whose land is sought to be condemned, of the amount of damages and com- pensation so assessed, together with the costs of the proceed- ing, shall be entitled to enter upon the land so condemned, and survey, construct, and operate on the same for the uses and purposes stated in the application; but such easement shall not vest absolutely in such person, corporation, or association until the tinal determination of the cause and the payment or deposit in court of such damages and compensation as shall then be adjudged. Code Ala. 1896, 1721. In the order of condemnation the same certainty of description is required as in the conveyance. London v. Sample Lumber Co., 91 Ala., 606. The payment of compensation before the taking is complete is a condition precedent, without which the title of the owner is not dis- turbed. N. O. & S. R. Co. v. Jones, 68 Ala., 48, 8 c. 70 Ala.. 227; M. & S. Ry. Co. v. Say re, 72 Ala., 443; Faust v. Mayor, 83 Ala., 279; A. M. Ry. Co. v. Newton, 94 Ala., 443. Until payment is made, the applicant has the right to discontinue proceedings-. A. M. Ry. Co. v. Xewton, 94 Ala.. 443. The applicant only acquires an easement in the lands; the fee, buildings, and everything not necessary to its use as a right of way remains with the owner. Odum v. R. & J. R. Co.. 94 Ala., 483. If the required deposit is made, an appeal in no wise hinders or impedes work on the premises. Cooper v. A. & A. R. Co.. 85 Ala., 106; M. & O. R. Co. v. A. M. Ry. Co., 87 Ala., 520. See also citations to constitution, art. I., sec. 24; art. XIV., sec. 7. Time within which damages to be paid ; effect of failure to pay. The applicant may pay the damages and compensation GENERAL POWERS OF THE N., C. & 8T. L. RY. assessed at any time within six months after the assessment thereof, or, in case an appeal is taken, within six months after the appeal is determined; but if he fails to pay the same within such time, such assessment shall cease to be binding on the owner of the lands, and the rights of the applicant thereunder shall determine; and upon such failure, the applicant shall be liable to the owner for all damages the latter may have sus- tained by the institution of such proceedings, including a rea- sonable attorney's fee for defending the same. Code Ala. 1896, 1722. A judgment of condemnation cannot be pleaded as res until paid; extent of conclusiveness before payment. .Am. R\I. Co. v. Newton, 94 Ala., 443. Methods of enforcing payments of damages and compensation. Cooper v. A. & A. R. Co., 85 Ala., 106. Compensation and damages should not be paid to the guardian ad litem of an infant. Brown v. R. AD. R. Co., 86 Ala., 206. See also citations to preceding section. Foreign telegraph and telephone company. A telegraph or telephone company, incorporated under the laws of another state, proposing to extend connecting lines into this state, may acquire an easement for the uses and purposes of such connect- ing lines, and may pursue the mode of proceedings prescribed in this article. Code Ala. 1896, 1723. Railroad Crossings. Any corporation, person, or association of persons owning a railroad or st'reet railroad in this state, and proposing to cross or intersect the line of another railroad or street railroad, may acquire an easement for such purpose, and to that end may pursue the mode of proceeding prescril>ed in this article. Code Ala. 1896, 172-L The crossing is a taking, and compensation must be made, as in other CTHCin M. A V. R. Co. v. B. S. A- T. Ry. Co., 96 Ala., 571. See citations to sec. I7r.'. and to constitution, art. 14, sec. 31. Costs. The cost of the application and proceedings thereun- der, including the compensation of commissioners, who shall receive the pay of jurors, must be adjudged against the appli- cant and his surety for costs, for which execution may be issued. But should the applicant tender to the landowner, prior to the application for condemnation, a sum of money in 784 EMINENT DOMAIN. excess of the award of the commissioners, then the costs of the proceedings before the commissioners shall be against the land- owner; bat the commissioners shall have no knowledge of the amount so tendered, and must certify in their award that they had no knowledge of such tender. The principles of law and rules of justice relative to tender shall apply to all tenders made under the provisions of this section. Code Ala., 1896; 1725. Court of probate open at all times. The court of probate must be deemed always open for the tiling and trial of all ap- plications made under this article. Code Ala., 1896; 1726. GEORGIA ACTS AS TO EMINENT DOMAIN. Nature of railways holding of right of way. [in Georgia.] By acts Ga., 1847-8, p. 172, the Nashville, Chattanooga & St. Louis Railway was granted all the rights, privileges, and immunities in Dade County, Georgia, as it possessed under its Tennessee charter, and also rights of Hiawassee Railroad Co. See p. 62, herein. The dominion of a railroad corporation over its tracks, trains, and right of way is no less complete or exclusive than that which every owner has over his own property. Hence the cor- poration may exclude or admit whom it pleases when they come to transact their own private business with passengers or other persons. This applies to selling lunches to or soliciting orders from passengers, and a mere implied license, no matter how long enjoyed, to transact such business, for which no com- pensation has been paid, is revocable at any time. 81 Ga., 461. See, also, similar heading under Tennessee law, in this chapter, p. 742, herein. Same. Easement only acquired. By ^4683 of the Code Georgia, 1895, which is set out further on in this chapter, the interest acquired by the railroad company in its condemned rio"ht of way is only an easement. Same. Injunction will lie to prevent others from building on right of Way. It has been held in Georgia that where a railroad company acquires a right of way, an injunction GENERAL POWERS OF THE N., G. A ST. L. RV. ry^Zj, would lie to lj preveiit an adjoining landowner from erecting a flouring mill within seven or eight feet of the track, which would thus leave no sufficient room for the repair and construc- tion of the same. 27 Ga., 409. Statute of limitations runs against right of way ; when.- It has been held in Georgia that "although the charter of a railroad company authorized it to acquire such strips of land between its terminal points as it might deem necessary, the width of the right of way not l>eing stated, yet when the road was located along and near the land now in dispute, and for thirty years the company did not take or use it, but it remained in the possession of others who claimed title to it, this was conclusive that it was not deemed necessary by the company for the successful operation of the road, and was not, therefore, a part of its right of way under its charter, no conveyance to the company or condemnation of the land appearing. " 76 Ga., 749. 1. If the width of right of way is specified in the charter, it is prob- able that the entry and construction of the road would be regarded as an appropriation of the statutory width. See 3 Lea (Tenn.), 478; 98 Ala., 647. 2. See discussion in first part of this chapter on similar heading under Tennessee law, p. 739, et H&I., herein. Misuser of franchises may work dissolution. 100 Ga., 147. Right of cities to open streets across railroad tracks; depot grounds, etc. In order to authorize a municipal corpora- tion in Georgia to take for the purpose of opening or extend- ing streets, property already devoted to public use, the power must be conferred in express terms, or by necessary implica- tion. A general power conferred by legislative enactment "to open new streets, change, widen, or to extend streets already opened within the corporate liinite," does not expressly, or by implication, confer upon the city the authority to take and use for this purpose land already in use by a railroad company for purposes embraced within the provisions of its charter. 98 Ga., 161. Where street opened across track, railroad not prevented from laying additional tracks at crossing. It has been de- cided in Georgia that, " where the dedication of so much of a 50 786 EMINENT DOMAIN. public street as crosses an existing track and the right of way of a railroad company, has resulted by implication from the laying out of the street at that point by the municipal authori- ties, and its use by the public acquiesced in by the railroad com- pany, the company is not thereby precluded from constructing and using for the passage of its locomotives and cars, when essential to the convenient transaction of its business, an addi- tional track upon such street, within the limits of the right of way owned by it at the time of the dedication, if the track is so constructed and used as not to interfere more with the use of the street by the public than is ordinary and usual at street and railway intersections where the whole breadth of the right of way is occupied with tracks for the passage of locomotives and cars. 91 Ga., 573. Successive appropriation or condemnation, for right of way. For a discussion generally of this subject, see similar heading under Tennessee law, p. 745 herein. May condemn connecting switches with other roads, and Vice versa. See 2215 of code Ga. 1895; also 2167(6) of same code. May condemn land for branch roads. See p. 640 et seq. herein. Right of other roads to condemn right of way of this. "In the event any company does not procure from the owner or owners thereof, by contract, lease, or purchase, the title to the lands or right of way or other property necessary or proper for the construction or connection of said railroad and its branches or extensions, or its depots, wharves, docks, or other necessary terminal facilities, necessary or proper for it to reach its freight or passenger depot in any city, town, or village in the state, as hereinafter provided, said corporation may construct its railroad over any lands belonging to other persons, or over such right of way or tracks of other railroads, as aforesaid, upon paying or tendering to the owner thereof, or to his or her or its legally authorized representative, just and reasonable compensation for said lands or said right of way. When the compensation is not otherwise agreed upon, it shall GENERAL POWERS OF THE N., C. A ST. L. RY. 787 be assessed and determined in the manner provided in this code." Code Ga. 1895, 2170. See also discussion herein of Tennessee law on subject, p. 756. Same. Right of other roads to condemn joint use of tracks, terminal facilities, etc., of Nashville. Chattanooga & St. Louis Railway. Under the general incorjKmition laws of the state of Georgia railroads are authorized " to cross, inter- sect, or join or unite its railroads with any railroad heretofore or hereafter to be constructed, at any point in its route, or upon the ground of any other railroad company, with the nec- essary turnouts, sidings, and switches, and other conveniences necessary in the construction of said road, and may run over * any part of any railroad's right of way necessary or proj)er to reach its freight depot, in any city, town, or village through or near which said railroad may run, under the limitations hereinafter named; but in crossing another railroad, either over, under, at grade, level or otherwise, it shall be at the ex- pense of the company making the crossing, and in such way and manner, at the time of construction, as not to interfere with said railroad in its regular travel or business. Code Ga. 1895, 2167 (6). Railways in Georgia may also contract as to joint use of right of way, or tracks, when. See code Ga. 1895, % 1865. Width Of right Of way. The width of the right of way granted railroads chartered under the general laws of Georgia is 200 feet. Code Ga. 1895, 2167 (4). Railroads chartered under the general laws may take land outside of its 200 foot right of way for obtaining sand. etc. 97 Ga., 107. Right of eminent domain; police powers.' 4 The exercise of right of eminent domain shall never be abridged, nor so con- strued as to prevent the general assembly from taking the property and franchises of incorporated companies and sub- jecting them to public use, the same as property of individ- uals, and the exercise of the police power of the state shall never be abridged nor so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals, or the general well-being of the 788 EMINENT DOMAIN. state." Constitution, article 4, sec. 2, par. 2. See also code Ga. 1895, 5798. Privileges granted to railroad companies already incor- porated. Any railroad company that has been already incor- porated, whether by act of the general assembly incorporating the same by name or under the provisions of the general rail- road law of the state, and whether organized or not, is hereby declared to be a legal and subsisting corporation under the laws of Georgia, and may amend its charter either by adopting the provisions of this article or by extending the time of ex- piration of its original charter for a period of fifty years, and when it so amends its charter it may retain its original organ- ization and the same amount of capital stock provided for in its original charter, and any other powers and privileges, except exemption from taxation, granted in its original charter, which may not be in conflict with this article or any other act relating to the powers and duties of railroad companies, and such amendments shall be without prejudice to any of its prior rights or contracts; and the provisions of this article may also be adopted by any person or persons, now owning or oper- ating a railroad in this State, without prejudice to such organ- ization as they may have already affected, and without preju- dice to their existing contracts and obligations. Whenever any railroad company desires to amend its charter, or any person or persons desire to adopt the provisions of this article, as above provided, it or they shall file a petition with the secre- tary of state, setting forth particularly in what manner it is desired to amend or adopt the provisions of this article. When such petition is filed, the secretary of state shall issue to said company or persons, under the great seal of the state, a certif- icate setting forth the manner in which said charter is amended, if the petition was for amendment, or, if the petition was to adopt the provisions of this article, then a certificate setting forth that said persons are a body corporate, with all the pow- ers, duties, and liabilities of this article. Before said certificate shall issue, said petitioner or petitioners shall pay to the treas- urer of the state the sum of fifty dollars. Code Ga. 1895, 2178. GENERAL POWERS OF THE N., C. A ST. L. RY. 789 Right of telegraph companies to occupy right of way of railroads. "Any person or any duly incorporated telegraph company having the right to do business in this state shall have the right to construct, erect, and maintain upon the right of way of the several railroad companies in this state, and along the lines thereof, their posts, fixtures, and wires, and to operate the same." Code Ga., 1895, 2345. 1. A contract between a railroad and telegraph company, vesting in the latter company exclusive rig-lit to use former's right of way for tele- graph purposes, is void as against public policy. 65 Ga., 160. 2. For method of assessing damages for, see \ 4685 of code of Ga. 1895, which is fully set out further on in this chapter, with notes; also acts Ga. 1898, No. 135, p. 288. 3. For amendment to the law in this regard, see acts (to., approved Dec. 21, 1897, and acts Ga.. 1898, No. 135, p. 280. Same. Duties of telegraph company. Said fixtures, posts, and wires shall be erected at such distances from the tracks of said railroads as will prevent any and all damages to said rail- road companies by the falling of said fixtures, posts, or wires upon said railroad tracks, and such telegraph companies shall be liable to said railroad companies for all damages resulting from a failure to comply with the provisions of this section. CodeGa., 1895, 2346. For notice necessary to be given by telegraph company to railroad company, where it proposes to condemn property of, see acts Ga. 1898, No. 135, p. 280. Laws apply to Western & Atlantic Railroad. "All laws of force regulating the liability of railroad companies in this state for damages done by the running of locomotives, cars, and other machinery, are hereby declared to apply equally to the Western & Atlantic Railroad, and in the bringing of all suits against the Western & Atlantic Railroad, the same shall be regulated by the laws in existence on that subject at the time of the adoption of this code. " Code Ga. 1895, 1023. Where the damage for which the suit was brought was received be- fore the adoption of the code, see 40 Ga., 416. What action maintain- able under this section by the widow of an engineer killed by the col- liding of two trains, see 34 Ga. 423. Same. Road laws also apply to Western & Atlantic Rail- road. "All the public road laws and penal laws touching the 790 EMINENT DOMAIN. railroads of this state, whether to obligate or protect, apply to the state road, unless specially excepted, or some other pro- vision is prescribed in lieu of some one or more thereof." Code Ga. 1895, 1022, vol. 1. The acts of 1856 (Cobb, 154) do not apply to the Western & Atlantic Railroad. 23 Ga., 436. It is subject to the same liabilities for damages, however, as other roads. 34 Ga., 424. See also 53 Ga., 124. HOW LAND CONDEMNED IN GEORGIA. Condemnation of private property ; notice, and to whom given ; taking private property. All corporations or persons authorized to take or damage private property for public pur- poses shall proceed as herein set forth. Code Ga., 1895, 4657. 1. Condemnation on purchased road. Where the railroad rights, powers, privileges, and franchises of a domestic corporation of Georgia are purchased, then, in determining the power to condemn on such a line, regard must be had to the law of its organization as well as to the general laws of the state. In other words, as to the line of such a road, the N., C. & St. L. Ry. would be vested with all the powers and priv- ileges, and subject to all the duties and liabilities, of said corporation whose road was purchased. 15 Lea (Tenn.). 37; 112 U. S., 610; see, also, case of Rogers v..N., C. & St. L. Ry., decided November 9. 1898, by the United States circuit court of appeals, sitting at Cincinnati, but which opinion has not yet been reported. Though the charter must be looked to, yet it will not always control in condemning, for, where a statute pre- scribes a mode by which land may be condemned to the use of chartered railways, and thereafter the legislature, by general act, prescribes a dif- ferent mode, the company must proceed in the mode prescribed by the lat- ter act. Such a statute does not impair vested rights, but merely affects remedies. Thompson on Corp.. sec. 5407; 81 Ky., 221; 12 Heis. (Tenn.), 54. Payment or tender of compensation. if said corporations or persons cannot by contract procure the land, easement, right of way, waterway, franchise, or other interest or property useful, needful, and necessary for public purposes, and author- ized by law to be taken or damaged, then it shall be lawful for said corporation or person to take or damage said property, upon paying or tendering to the owner thereof just and ade- quate compensation for the land, franchise, or other interest or property so to be taken or used. Code Ga. 1895, 4658. GENERAL POWERS OF THE N., C. A ST. L. RY. 791 When parties cannot agree as to compensation. If the parties cannot agree upon the compensation to be paid, the same shall be assessed and determined in the following manner. CodeGa. 1895, 4659. Notice to owner. The corporation or jxjrson seeking to con- demn property for public purposes shall serve a notice upon the owner of the property and upon the owner of any remain- der, reversion, mortgage, lease, security -deed, or other interest therein. Code Ga. 1895, 4660. For what notice is necessary, see 90 Ga., 680. Notice if owner under disability. if the owner, or any of the owners, shall be a minor or under any disability whatso- ever, such notice shall be served upon his or their personal representatives. Code Ga. 1895, 4661. If there be no personal representative. if there be no per- sonal representative, such notice shall be served personally upon the minor and upon the ordinary of the county where the property is located, who shall appoint a guardian ad litein to represent the minor in said litigation. Code Ga. 1895, 4662. Guardian ad Htem for minor. If such ordinary, by reason of interest or other cause, is disqualified, such notice shall be served upon the clerk of the superior court of the county, who shall appoint a guardian ad litein to represent the minor. Code Ga. 1895, 4663. Notice Where trust property. If the property sought to be condemned is trust property, or property in which remainders have been created, such notice shall be served upon the trustee, and also upon such persons as have an interest under the con- veyance and who are of age. Code Ga. 1895, 4664. Service of notice on nonresidents. If the owner, or any of the owners, or persons in any way interested in the property, reside out of the state, notice shall be served upon the jrerson in possession, and a like notice shall In? inclosed in an envelope, properly stumped and directed, and l>e by the said corju^ration or person delivered to the ordinary of the county, who shall mail the same to said owner, or owners, at their address, if known, and if the address l>e not known, the ordinary shall act 792 EMINENT DOMAIN. for such nonresident owners in the manner herein provided for unrepresented minors. An entry of the facts and his action therein shall be entered on the minutes by the ordinary. Code Ga. 1895, 4665. Where owner unknown, or possibility of unborn remain- der-men. If the owner or owners of such property, or of any interest therein, are unknown, or there is possibility of unborn remainder-men having an interest, notice shall be served upon the person in actual possession of the property, and also upon the ordinary, who shall act for said unknown owner as pro- vided for in case of minors; Provided, however, That when the unknown owner may appear he may ask for and have another assessment under the terms of this chapter, and he shall receive the amount then assessed; and in the event the second assess- ment is less than the first, the ordinary shall return the over- plus to the corporation or person originally condemning. Code Ga. 1895, 4666. HOW Service effected. Unless service is acknowledged or waived, a copy of such notice shall be served by a sheriff or deputy, personally, or by leaving a copy at the residence of the owner, or mailed in case of nonresidents, at least fifteen days before the day fixed for assessing the damages. Code Ga. 1895, 4667. Where notice Cannot be served. In cases where service can- not be effected by leaving notice at place of residence, or by personal service, the notice shall be posted at the courthouse door fifteen days and be published once in the official paper one week before the day fixed for assessing the damages. Code Ga. 1895, 4668. Direction and contents of notice. All notices shall be directed to the owner or owners, and shall describe the prop- erty or franchise and the amount of interest therein sought to be condemned ; fix the time when the hearing will be had on the premises ; give the name of the assessor selected by said corporation, and request the owner, trustee, or representative, as the case may be, to select an assessor. Code Ga. 1895, 4669. GENERAL POWERS OF THE N., C. e sworn by some officer authorized to administer an oath "to do equal and exact justice between the parties according to law." Code Ga. 1895, 4672. Hearing before assessors ; when hearing cannot be at time fixed. If, by reason of delay in appointing assessors, or other cause, the hearing cannot be had at the time h'xed in the original notice, the assessors shall fix the time for the hearing and notify both parties, in writing, of the time and place of the hearing. Code Ga. 1895, 4673. Evidence to be heard by assessors. The said assessors shall hear all evidence offered by either party as to the value of the property to be taken or used, or as to damages done the owners of the same, and the benefits to the owner accruing from the use of the property by the corporation or persons. Parties may be represented in person or by attorney before the as- sessors. Code Ga. 1895, 4674. 794 EMINENT DOMAIN. Assessment of value and damages. The assessors, or a majority of them, shall assess the value of the property taken or used, or damage done, and shall also assess the consequential damages to the property not taken, and deduct from such con- sequential damages the consequential benefits to be derived by the owner from the operation of its franchise by the corpora- tion, or by the carrying on of the business of the corporation or person taking or damaging the property; Provided, The con- sequential benefits assessed shall in no case exceed the conse- quential damage assessed; Provided, further, That nothing in this section shall be so construed as to deprive the owner of the actual value of his property so taken or used. Code Ga. 1895, 4675. Finding of assessors; how and where entered. Said assessors shall enter their finding on the notice substantially as follows: "Upon the application of A. B. to condemn the fol- lowing property of C. D. , notice was duly served by the sheriff (or his deputy) on C. D. (owner, trustee, representative, or ordinary, as the case may be), by (mailing, posting, etc., as the case may be;. The applicant appointing E. F. as assessor. The (owner, ordinary, representative, as the case may be) appointed G. H. as assessor, and they two (or judge of the superior court) appointed 1. J. as assessor; who, after being duly sworn and hearing the evidence, find and award that for taking the property sought to be condemned, to- wit: , the said A. B. shall pay to C. D. as owner, the sum of $ . The consequential damages to the property of C. D. not taken amount to $ , and the consequential benefits to $ ; and the said A. B. shall pay said C. D. the difference between such damage and such benefit.'' Code Ga. 1895, 4676. Filing and record Of award. Within ten days after the award is made, it shall be filed and recorded in the office of the clerk of the superior court of the county where the property is situated or franchise sought to be condemned is exercised. Code Ga. 1895, 4677. Appeal, final judgment, etc. In case either party, or the representative of either party, is dissatisfied, he or they (iKNKllAL POWERS OF THE N., C. A ST. L. RV. 795 have the right, within ten days from the time the award is filed, to enter in writing an appeal from the award to the supe- rior court of the county where the award is filed; and, at the term succeeding the filing of the appeal, it shall be the duty of the judge to cause an issue to be made and tried by a jury as to the value of the property taken or the amount of damage done, with the same right to move for a new trial and file a bill of exceptions as in other cases of common law. Code Ga. 1895, 4678. Appeal not tO delay, When. The entering of said appeal and the proceedings thereon shall not hinder or delay in any way the corporation's or person's work or the progress thereof, if the applicant to condemn shall pay or tender to the owner the amount of the award, and, in case -of the refusal of the owner to accept the same, deposit the amount awarded with the clerk of the superior court for the benefit of the owner. Code Ga. 1895, 4679. Tender or acceptance not prevent appeal. The tender, payment, or acceptance of the amount shall not prevent either party from prosecuting the appeal. If the amount so awarded by the assessors is less than that found by the final judgment, the company shall be bound to pay the sum so finally adjudged in order to retain the property; and if it be less than that awarded by the assessors, the owner shall be bound to refund any excess paid to or received by him, and a judgment for such excess shall be rendered against him, to be collected "by levy as in other cases. Code Ga. 1895, 4680. When execution Shall iSSUe. If no appeal be entered within ten days after the award is filed, or if the corporation shall fail to pay the amount of the award or final judgment, the clerk shall issue execution upon such award or judgment, which may be levied upon any property of the corporation or person condemning. Code Ga. 1895, 4681. Notice and award to be entered on minutes. in all cases the clerk shall enter the notice and award thereon upon the minutes of the court, ami the corporation or j>erson condemn- ing shall pay the costs for the condemnation proceedings to 796 EMINENT DOMAIN. each assessor, not exceeding two dollars per day, and other cost as now provided by law in civil cases in the superior court. Code Ga. 1895, 4682. What interest to vest in party seeking condemnation. Upon the payment by the corporation or person seeking to con- demn of the amount of the award and final judgment on appeal, such corporation or person shall become vested with such inter- est in the property taken as may be necessary to enable the corporation or person taking to exercise their franchise or con- duct their business; and whenever the corporation or person shall cease using the property taken for the purpose of con- ducting their business, said property shall revert to the person from whom taken, his heirs or assigns. Code Ga. 1895, 4683. Payment tO minor. If the person to whom the money belongs shall be a minor or under any disability, and without a legal representative entitled to receive the same, the money shall be paid to the ordinary of the county, who shall at once cause the same to be invested; and to this end the ordinary of the county of his residence shall appoint guardian or other proper representatives to receive said money and manage the property in which it may be invested. Code Ga. 1895, ' 4684. TO What Condemnations applicable. The method of con- demnation of property and assessment of damages hereinbefore provided shall apply to condemnation by cities, counties, rail- roads, telegraph, canal, mining, and waterworks companies, drainage by counties, tramroads, lighthouses, and beacon con- struction, and to all persons or corporations having the privilege of exercising the right of eminent domain; but nothing herein shall be construed to alter or repeal the law for opening public or private roads or ways. Code Ga. 1895, 4685. By Acts Ga. 1898, No. 135, p. 280, of combined acts of 1896-7-8, the above section was amended as to the method of assessing damages for condemnation by telegraph companies, and provided that only one as- sessment need be make for entire road which may be had in any one county where service can be made as therein provided, which, however, must be in county of principal office, if company has one in state. See act itsef. GENKKAI. I 'OWE US OF THE N., C. A ST. L. RV. 797 Subpoena and attendance of witnesses. Said assessors shall have the same power to issue subpoenas and compel the attend- ance of witnesses as is vested in the superior court. Code Ga. 1895, 4686. GENERAL NOTES TO GEORGIA ACTS. Railroad right Of way. When summary way of assessing damages for right of way does not deprive landowner of com- mon law remedy to recover damages: 1 Ga., 524-530. Right not complete till compensation: 19 Ga. , 427. Appeal from award as to right of way in four days from decision: 9 Ga., 405; 18 Ga., 607-609; 30 Ga., 43. Other law as to the right of way: 14 Ga., 327. Injunction by railroad against encroach- ment on their right of way: 27 Ga., 499. The actual damages from invasion of property by railroad for right of way, the meas- ure of: 45 Ga., 180. When right of way granted over land, not revocable: 45 Ga., 531. As to use of street by railroad: 43 Ga., 200. As to costs in proceeding for right of way: 47 Ga., 345. Where owner cannot be compelled to take pay for right of way in stock, burden of proof on the railroad company: 48 Ga., 44. As to injunction against railroad using water near right of way: 42 Ga. , 509. When owner not debarred from resorting to trespass for right of way: 48 Ga., 423. Injunc- tion sustained against city appropriating right of way of rail- road for a street: 53 Ga., 120. As to when the benefits de- rived by the owner can be set off against the value of the land taken and against other damage: 30 Ga., 43; 51 Ga. , 470; 53 Ga., 123. As to evidence of value of land taken and as to conse- quential damages: 53 Ga., 178. Adverse possession by rail- road of right of way: 54 Ga. , 293-296. Where no necessity to resort to injunction, adequate remedy by levy and sale or eject- ment: 54 Ga. 579; but see 65 Ga., 614. Interest only given as part of damages for right of way from time damage occurred: 51 Ga., 471. Legislature may prescribe mode of ascertaining what is just and adequate compensation: 83 Ga., 257. 798 EMINENT DOMAIN. Assessments cover all damages, foreseen or not, resulting from proper construction of road: 69 Ga., 396. Amount of assessors' award paid or tendered, work may proceed. Phrase ' ' from the time said condemnation proceed- ings are begun" (in section 1689 (1), Code of 1882) conflicts with constitution, in so far as it authorizes work done before payment of tender: 83 Ga., 263. Compensation continuously, and properly tendered is compen- sation "paid:" 83 Ga., 259; citing 69 Ga., 320. Land along railroad track, in possession of party over fifteen years under color of title, could not constitute right of way: 76 Ga., 74:9. Injunction proper remedy against purchaser of road sold by court pending assessment of damages: 65 Ga., 614. Agreement of plaintiff's attorney not to enjoin railroad did not give right of entry without ascertaining value: 76 Ga., 90. Constitutional inhibition against taking private property for public purposes without compensating, etc., not warrant in- junction where company bona fide claims right of way: 77 Ga., 323. Witness on appeal may be asked as to value, without restric- tion to cash market value: 71 Ga. , 240. Appeal vacates award; and where husband consented to cer- tain valuation, but wife and minor children appealed, his act did not bind them: 71 Ga., 240. Steam railroad company cannot lay tracks along city street without express sanction of state legislature: 80 Ga. , 793. By legislative grant to Georgia Southern & Florida Railroad Company of rights and privileges of Central Railroad authority was not conferred to lay tracks on streets of Macon: 80 Ga., 794. As to railroad company's right to build additional tracks along right of way, on street dedicated to public: 91 Ga., 573. Alley between road and lot condemned may be estimated in damages. In such case value of easement and one-half that of ground should be counted: 71 Ga., 240. GENERAL POWERS OF THE N., C. A ST. L. RY. 7 '.''.' Railroad authorized with condition precedent, to use street, cannot until condition complied with: 84 Ga., 376. Railroad purchasing right of way and taking away protecting fence, liable to tenant or grantor for damages by cattle: 84 Ga., 256. Though railroad paid damages for right of way, liable for damage to crops, caused by subsequent removal of stock gap: 85 Ga., 444. Liability of railroad company for construction of roadway whereby adjoining landowners injured; views from all stand- points and rules laid down: 69 Ga. , 396. County road, measure of damages for exercise of right of eminent domain is depreciation in market value of property: 85 Ga., 420. KENTUCKY ACTS AS TO EMINENT DOMAIN. Nature of railway's holding of right of way. [In Ken- tucky.] By acts Ky. 1856, the Tennessee charter of the Nash- ville & Northwestern Railroad Company, now the Northwestern Branch of the Nashville, Chattanooga & St. Louis Railway, was reenacted in Kentucky, and the company granted all the privileges, franchises, powers, and responsibilities conferred and granted by said Tennessee charter. See pp. 125-6 herein. For charter provisions on this subject of the Hickman & Obion Railroad Company, which extended from Union City to Hickman, Ky. , and which had been purchased by the Nashville & Northwestern Railroad Company prior to the purchase of the latter railroad by the Nashville, Chattanooga & St. Louis Railway, see p. 104 herein. For charter provisions of Paducah, Tennessee & Alabama Railroad Company, see p. 487, et see made as may be necessary to the selection of the most advantageous route for such road, and, for such purposes, by its officers, agents, and servants, to enter upon lands or waters of any person, but subject to liability for all damages which they shall do thereto. 51 802 EMINENT DOMAIN. 2. To receive, hold, enter upon, and take possession of such voluntary grants and donations of real and other property as shall be made to it, to aid in the construction and maintenance and operation of such road, but the real property thus re- ceived sha'l be held and used for the purpose of such grant or donation only. 3. To purchase, hold, enter upon, take possession of and use such real estate, franchise, and other property as may be necessary for the construction, maintenance, and accommoda- tion of its line of road; but the same shall not be taken or ap- propriated without the consent of the owner until the com- pensation to be made thereof is agreed upon or ascertained, and paid or deposited as required by law. Code Ky. 1494, 768. 4. Same. Width of right of way; may take land for what; change gauge; may change location, when. To lay out its road not exceeding one hundred feet in width, and if more than one track is laid, fifty feet additional for each track, and construct the same; and for the purpose of cuttings or embank- ments, and procuring stone, gravel or other material, or for the purpose of draining its roadbed, to take, in the manner herein provided, such other lands in the vicinity of or adjacent to its road as may be necessary for the proper construction, operation, and security of its road; and to change, when it deems proper, the gauge of its road; and may, for the purpose of avoiding annoyance to public travel, or dangerous or dif- ficult grades or curves, or unsafe, insecure grounds or founda- tions, or for other reasonable cause, change the location, or grade of any portion of its road, but shall not, except as other- wise provided, depart from the general route prescribed in the articles of incorporation. Code Ky. 1894, 768(4). 5. Right of other roads to cross this; conditions. To con- struct its road upon or across any water course, private or plank road, highway, street, lane or alley, and across any rail- road or canal; but the corporation shall restore the water course, private or plank road, highway, street, lane, alley, railroad or canal to its former condition, as near as may be, GENERAL POWERS OF THE N., C. A ST. L. RY. 803 and shall not obstruct the navigation of any stream or ob- struct any public highway or street by cars or trains for more than five minutes at any one time, and shall construct suitable road and street crossings for the passage of teams by putting down planks or 6ther suitable material between and on each side of the rails, the top of which shall be at least as high as the top of the rails of such road or street; and in case the road is constructed upon any public street or alley, the same shall be upon such terms and conditions as shall be agreed upon between the corporation and the authori- ties of any city in which the same may be, but such road shall not be constructed upon any public street or alley until compensation shall be made by the corporation therefor to the owner of the property adjoining such street or alley, and oppo- site where such road is to l>e constructed, either by agree- ment or in the manner provided by law. Code Ky. 1894, 768 (5). Same. Map of route to be recorded; commission to be notified if Other railroad Crossed. Every corporation pro- ceeding to construct its road in or through any county shall file and have recorded, at its expense, in the county clerk's office of such county, a map of the route, showing the center of said pro- posed road, and the width thereof; and if, after a road is located, it is desired to change its location, or the proposed route is changed, as it may be, a map showing such change, as well as the center and width thereof, shall be tiled and recorded, at its expense, in the county clerk's office of the county in which the change is made. If the proposed route, as indicated by the map, crosses the lino of any other railroad, notice of such fact shall, before the construction of the road is commenced near the point of crossing, be given to the railroad commission, who shall give notice to the corporation whose road it is proposed to cross, as well as the other corporation, of the time and place it will meet to consider the question of approving the crossing, if objection IMJ made thereto; and the commission may deter- mine the manner in which the crossing shall be made to protect against accidents thereat. Code Ky. 1894, 767. 804 EMINENT DOMAIN. Right of telegraph companies to condemn right of way along railroad. By acts Ky. 1898, ch. 49, p. 123, telegraph companies were empowered to construct, maintain and operate their lines along and upon the right of way and structures of any railroad in the state, upon terms therein set out. Successive appropriation or condemnation for right of way. For a full discussion of this subject, see similar heading under Tennessee law, p. 745, et seq., herein. In absence of restrictions in charter or general law, a rail- road company may make successive appropriations for a right of way, even in face of contract not to do so, as a corporation cannot bargain away its power of eminent domain. 87 Ky., 72; 9 R., 924. Railroads may condemn for branches, switches, spurs, etc. See p. 641 herein. HOW LAND CONDEMNED IN KENTUCKY. Commissioners; appointment to assess damages. When any company authorized to construct a railroad shall be unable to contract with the owner of any land or material necessary for its use for the purpose thereof, it shall file in the office of the clerk of the county court, a particular description of the land and material sought to be condemned, and may apply to the county court to appoint commissioners to assess the dam- ages the owner or owners thereof may be entitled to receive, and thereupon the said court shall appoint three impartial house- keepers of the county, who are owners of land, and who shall be sworn to faithfully and impartially discharge their duties under this law. Code Ky. 1894, 835. Assessment of damages by commissioners. it shall be the duty of said commissioners to view the land and material, and to award to the owner or owners the value of the land or mate- rial taken, which shall be stated separately ; and they shall also award the damages, if any, resulting to the adjacent lands of the owner, considering the purposes for which it is taken; but shall deduct from such incidental damages the value, if GENERAL POWERS OF THE N., C. A ST. L. RY. 805 any, of the advantages and benefits that will accrue to such adjacent lands from the construction and prudent o)>eration of the railroad proposed to be constructed. They shall return a report, in writing, to the office of the clerk of said court, stating their award, and shall describe, in their report, the land and material condemned, give the names of the owners, and whether non-residents of the state, infants, of unsound mind, or married women. Code Ky. 1894, 836. 1. Condemnation of land. In a proceeding to condemn land one of the parties to the controversy should not be allowed, in the absence of the other, to discuss the merits of the case with the commissioners appointed to assess the damages. L., St. L. & T. R. Co. v. Barrett, 91 Ky., 487. 2. Measure of damages, in proceeding to condemn land, is the value of the land taken considering its relation to the remainder of the tract, and also the damages by reason of the depreciation in value of the resi- due of the land, including the cost of additional fencing made necessary by the taking of the land. The fencing is to be included as a part of the direct damages, and the cost thereof cannot be abated by the benefits arising from building the road. L., St. L. ermission to build stock gaps on said road when the line of their fences may cross the same, and shall have the privilege of joining their fences to such stock gaps; Provided, Said landowners shall not improperly interfere with the bed of said road, or render it less safe, or interfere with the running of the trains thereon." 1. For other laws of Georgia requiring the erection of stock gaps, see pp. 717, 718, herein. 2. The Western & Atlantic Railroad liable for killing stock as any other company. Code, Ga., 1895, 2252. KENTUCKY LAW AS TO FENCES. [In Kentucky.] Railroad company required to fence as Other landowners. That when any corporation, or person owning or controlling a railroad in this commonwealth, owns right of way, and its railroad shall have been constructed and in operation for the period of five years, the same is hereby put on equal terms and obligations with other landowners own- ing adjoining lands in this commonwealth. Ky. code (1894), 1789; acts Ky. 1893, approved February 25. 1. The act of 1886 requiring railroads to erect fences was held un- constitutional. 91 Ky., 175. 2. Sections 810, 811, and 812 of the code Ky. 1894, as to injuring stock, do not apply to railroads which inclose their entire line of road with good and lawful fences and good and sufficient cattle gaps and keep the same in repair. Code Ky. 1891, 813. Fence to be constructed in Kentucky by railroad and land- owner. That every such corporation or person owning or controlling and operating a railroad in this commonwealth, and owning right of way, shall construct and maintain a good and lawful fence on one-half of the distance of the division line between such rights of way and the adjoining lands, except as is hereinafter provided; and that every owner of land or lands 816 FENCES, CATTLE GUARDS, ETC. adjoining any rights of way of such corporation or persons, as aforesaid, shall construct and maintain a good and lawful fence on one-half the distance of the division line between such land or lands and such rights of way, except as is hereinafter pro- vided. Ky. code (1894), 1790. When one party has built in Kentucky other may be required to build ; notice ; penalty. That when either party, either the corporation or person owning or controlling and operating such railroad, or the owner of lands adjoining the right of way thereof, has constructed or does construct a good and law- ful fence on the division line between such right of way and the lands adjoining the same for one-half the distance of said line, and the other party has not constructed such fence on said line for half the distance thereof, nor has paid a sum sufficient to construct such fence, or any sum by agreement in lieu thereof, the party who has constructed such fence, as herein provided, shall, in writing, notify the party in default of the length of the division line between them, and that he (the party serving such notice) has constructed a good and lawful fence on said division line for one-half the distance thereof; and it shall be the duty of the party on whom such notice is served, and he is hereby required, to construct a good and lawful fence on the other half of the distance of said division line, within four months after date of receiving said notice. Where the corporation, or person owning or controlling and operating the railroad is in default, such notice may be served on the nearest station agent thereof. If the party on whom such notice is served fail to construct such fence as is herein provided, and within the time prescribed, such party so in default shall be fined one dollar for each and every day after the expira- tion of the said period of four months during which such fence shall not have been constructed. Said fines may be recovered by warrant in the name of the commonwealth of Kentucky before any court of competent jurisdiction. Kentucky Code (1894), 1791. There being no common law obligation for a railroad to build a fence along its line, but it being obliged by statute to build half of the fence GKNKKAL TOWERS OF THE X., C. A ST. L. RV. 817 after notice, as in the case of persons owning adjoining lands, damages cannot be recovered against a railroad for failure to construct a fence, though it has refused to do so after notice, where plaintiff does not aver a construction of or offer to construct his half of the fence. 13 R., 436. Exemption from provisions of this law. That the pro- visions of this act shall not apply in any case wherein any cor- poration or person owning or controlling and operating such railroad has furnished the material to construct a fence, or con- demned its right of way, and paid the owner or his vendor damages, in the estimation of which the cost of fencing was taken into consideration, nor be so construed as to require such corporation or person as aforesaid to build any fence along the line through any town or city, or across any public or private passway; nor shall such corporation or person be required to construct such fences as hereinbefore provided through unim- proved or uncultivated lands until the owner of such lands shall have previously enclosed such lands on three sides with sufficient fences, or unless such lands be so enclosed with fences and a river, creek, bluff, or such other natural barrier as will prevent the egress of stock. Kentucky Code (1894), $ 1792. Cattle guard ; where to be erected in Kentucky. That all corporations and persons owning or controlling and operating railroads as aforesaid shall erect and maintain cattle-guards at all terminal points of fences constructed along their lines, except at points where such lines are not required to be fenced on both sides, and at public crossings. But where there is a private pass way across said railroad the landowner for whose benefit it is kept open shall bear one-half of the expense of cattle-guards and gates, the former to erect the gates, the cor- poration or person operating the railroad to erect the cattle- guards. Kentucky Code (1894), 1793. Landowner in Kentucky, who has built entire fence, may remove his part ; proviso. That any landowner who has al- ready built a lawful fence along the whole distance of the division line between his land and the right of way of any rail- road, shall have the right (in the absence of any agreement to the contrary), after giving three months' notice to the corpora- tion or person operating said railroad (to be served on the 52 818 FENCES, CATTLE GUARDS, ETC. nearest station agent) of such intention to move one-half of said fence; Provided, however, He shall not, in removing such part of his fence, cause such corporation or person aforesaid to erect water gaps, and to fence at points where the grade of the roadbed is of such a character as may render fencing unneces- sary. Ky. code (1894), 1794. Lawful fence, what constitutes in Kentucky ; agreement Of parties. That, for the purpose of this act, any fence con- structed of substantial posts, well set, not less than two feet in the ground and at no greater distance apart than ten feet, with wire not less than four feet and a half high, consisting of seven strands, shall be held to be a good and lawful fence; but noth- ing herein shall be construed to prevent parties from erecting any other class of lawful fence. Ky. code (1894), 1795. By \ 1780 of the code of Ky. (1894), " Every strong and sound fence of rails, or plank, or wire, or wire and plank, or iron, or of hedge, four and one-half feet high, and being so close that cattle cannot creep through, or made of stone or brick, four and one-half feet high, or a ditch three feet deep and three feet broad, with a hedge two feet high, or a rail, plank, stone, smooth or barbed wire, or brick fence two and one-half feet high on the margin thereof, the hedge or fence being so close that cattle cannot creep through, shall be deemed a lawful fence. Code Ky. (1894), I 1780. Law not applicable to owner who has received compensation. That this act shall not apply to any land where the owner or his vendor has received compensation for fencing the same. Kentucky Code, 1894; 1796. Company shall erect entire fence in Kentucky ; when right Of Way given. That when the owner of any land or lands, or any immediate or remote grantor or vendor of such owner, has given to the corporation or person owning or controlling and operating any railroad a right of way through such land or lands free of charge, then the entire fencing on the division lines between such lands and the right of way of such railroad shall be done by and at the cost of the corporation or person owning or controlling and operating such railroad, said fencing to be done as required by this act. Kentucky Code, 1894; 1797. GENERAL POWERS OF THE N., C. A ST. L. RY. 819 Parties may agree in Kentucky concerning fences. That nothing in this act shall be construed as preventing corpo- rations, or persons owning or controlling and operating rail- roads, and owners of land adjoining such rights of way, from entering into contracts for the construction of fences of the character contemplated by this act; and lawful fences con- structed under such contracts shall be a sufficient compliance with the provisions hereof. Kentucky Code, 1894; 1798. Fences between parallel railroads or turnpikes in Ken- tucky. That where two railroad companies adjoin lands or right of ways, or a railroad company and a turnpike company adjoin land or right of ways, running parallel with no tillable or grazing lands between their right of ways, the railroad com- pany shall not be required to build any fence along its side next to said pike or railroad, unless the turnpike or other rail- road company has Hrst built its half along said division line. Kentucky code, 1894; 1799. StOCk gaps in Kentucky. See p. 720, herein. CHAFFER LXIX. FREIGHT CHARGES WHAT MAY BE CHARGED WHAT ON BRANCH ROADS DISCRIMINATIONS SALE OF FREIGHT FOR CHARGES. What rates may be charged; charter provision. [in Ten- nessee.] Section 14 of the Nashville, Chattanooga & St. Louis Railway charter provides that "the company shall have the exclusive right of transportation or conveyance of persons, goods, merchandise, and produce over the said railroad by them to be constructed; Provided, That the charge of trans- portation or conveyance shall not exceed thirty-live cents per one hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement for every hundred miles, and five cents a mile for every passenger; And provided alto, That said company may, when they see tit, farm out their 820 FREIGHT CHARGES. rights of transportation on said road, subject to the rates above mentioned." See p. 9 herein. This section, however, simply guarantees the company the right to charge for freight and passengers. It does not guar- antee or authorize any particular rates, but simply prohibits it from charging more than the rates therein set out. The su- preme court of Tennessee has held that < ' its intent was not to proportion the charges by any unit of distance, but to fix a maximum beyond which the company could not go, and to leave the tariff of charges within that limit to the company, subject to the rule of the common law, that charges should be reasonable, and to the regulating power of the courts and of the legislature. 9 Lea (Tenn)., 609; 128 U. S., 174-82; Book 32 L. C. P. Co., 377. Hence this section would not protect the railway from the control of any legally constituted state railroad commission. Railroad commission. By acts Tenn. 1897, ch. 10, p. 113, a railroad commission was created in order to secure just and reasonable rates, and thus prevent unjust discriminations. See act itself for contents. May charge branch roads, however, on basis of twenty miles, Whether that long Or not. Section 40 of the charter of the Nashville, Chatttanooga & St. Louis Railway, p. 23, herein, provides, that branches may be built to connect with the Nash- ville, Chattanooga & St. Louis Railway, but that the company shall not be required to receive any car from such branches without receiving payment for at least twenty miles transpor- tation. It is doubtful whether this section is operative now, under the pres- ent law. See, also, section below. Railroads must receive loaded freight cars of other compa- nies without charging more than on their own line. Under the general law every railroad company, when required, shall receive on its road and branches the full loaded freight cars of all other companies, transmit them to their destination, and return them, without charging for the transportation of the goods, wares, merchandise, and produce therein any greater rate of freight than they charge for similar transportation in <;KM:KAI. POWERS OF THE N., c. A ST. L. RY. their own cars. Code Tenn. (Shannon's), 1505; (M. & V.), g 1249ft. Demurrage, Charges for. In Tennessee a railroad company cannot charge demurrage in the absence of a contract. This iimy he done, however, by inserting a clause in the bill of lading to that effect. 15 Lea (Tenn.), 261. Railway may hold freight for charges. A common carrier is entitled to the possession of the goods until the freight charges are tendered. 9 Heis. (Tenn.), 567. May refuse to accept freight for transportation, unless charges are paid in advance. Hutchison on Carriers, 116, 443; 13 S. E. Rep., 137. One railroad cannot bind connecting road as to charges, un- less by agreement between them. 7 Bax. (Tenn.), 345. If articles shipped are of different character than those named in bill of lading, and upon which rates are higher, con- necting line may transport, charge and collect increased rate. 7 BHX. (Tenn.), 345. Receiving carrier is liable for goods lost by connecting line in the absence of agreement or clause in the bill of lading to the contrary. 6 Heis. (Tenn.), 143, 208. Goods may be sold for freight charges, when. "After said freight or merchandise has been held at the said warehouse, depot, or station, uncalled for and not taken by the consignee, for the period of six months and one day from the date of the arrival of said goods at said warehouse, depot, or station, it shall be lawful for said common carrier and express company to send said goods to one of the principal offices in the state, to be sold for charges. " Code Tenn. (Shannon's), 3598; (M. & V.), 2789; acts Tenn. 1870-1, ch. 17, sec. 1. 1. What notice required. The railroad company must first notify the consignee by written or printed notice, to be delivered to the con- signee in person, at his place of business, if in the city or town where received; or if not residing or doing business in the city or town, then through the postoffice, within three days after the arrival of the goods, of their receipt. 2. Notice excused if residence and post office of consignee un- known. 8 Lea (Tenn.), 32-4. 822 FREIGHT CHARGES. 3. Notice to consignor of non-acceptance. In ordinary cases it is not required of the common carrier to give notice to the consignor of the non-acceptance of the property by the consignee; but the nature of the property might be such as to require such notice. 6 Cold. (Tenn.), 360-1. 4. After the goods are received and stored the liability as a common carrier ceases eo instanti, and thereafter its liability is that of a ware- houseman. 7 Pick. (Tenn.), 701-3; 12 Heis., 165; 8 Lea (Tenn.), 33. Same. Notice of sale and advertisement "After said freight or merchandise has been held by said express company for the period of six months and one day, and giving notice to the consignor, if known, by written or printed notice, to be transmitted through the mail, placed in the postoffice at least thirty days before the day of sale, it shall be lawful for said express company to advertise said goods that have not been taken by the consignees and advertise the same in one or more of the daily papers in such principal city, the said advertise- ment to be inserted on each Wednesday of the month preceding the sale, specifying each article to be sold, and stating date of sale and place of sale." Code Tenn. (Shannon's), 3599; (M. & V.), 2790. Same. Disposition Of proceeds. "After the sale has been made, the money received for the sale of such articles of mer- chandise, after deducting charges, shall be sent to the principal office in the state, there to be held for the benefit of the owners of the goods sold a sworn copy to be kept at the office where the sale has been made, and a sworn copy, certified to by the auctioneer, to be sent to the principal office where the money is to be deposited; and they also notify the person or persons, if known, who shipped the goods or packages, after being in the warehouse six months, as they are required to notify the person to whom the same was sent. " Code Tenn. (Shannon's), 3600; (M. & V.), 2791; acts Tenn. 1870-1, ch. 17, sec. 4. Perishable goods may be sold sooner. if the goods cannot be delivered, and are perishable, and sale thereof is of absolute necessity to protect the owners, the common carrier may sell them, and retain his charges; but if they are not so perishable, the common carrier must store them itself or with some respon- GENERAL POWERS OF THE N., C. & ST. L. RY. 823 sible warehouseman, with or without the advance of freight, a reasonable time. 9 Heis. (Tenn.), 568-70. When discriminations in freight charges are allowed. The duties and liabilities of railways as to discriminations are now largely controlled by congress in its act creating the inter- state commerce commission. That act, however, only relates to such freight and passengers as are transported from one state to another. It does not affect strictly domestic trans- portations. In the State of Tennessee it has been held that a common carrier may discriminate in favor of persons living at a distance from the end of the route, where the object is to secure freight which would otherwise reach its destination by a different route, and that other customers not in like condition will have no right of action because of the discrimination, if the charges made against them are reasonable. Royan v. Aiken, 9 Lea (Tenn.), 610. See also the unreported case of Cowan* Me Clung & Co. v. E. T., V. <& Ga. Ry., decided at Knoxville, June, 1876. But see code Tenn. (M. & V.), 1272 [Shannon's code Tenn., 1531], which provides that the state shall have power, by appropriate legislation, to prevent unjust discriminations against, and extortion for, freights and passage over all railroads in this state. 1. Railroad commission created. By Acts Tenn. 1897, ch. 10, p. 113, the legislature has created a railroad commission whose duty it is to se- cure just and reasonable rates and charges, and to prevent unjust dis- crimination. See act itself for contents. 2. Railroads may refuse to carry passengers. By Acts Tenn. 1875, ch. 130, \ 1, no keeper of any hotel, public house or carrier of passengers for hire, is bound or under any obligation to entertain, carry or admit any person whom he shall, for any reason whatever, choose not to enter- tain, carry or admit to his house, hotel, carriage or means of transpor- tation. Code Tenn. (Shannon's), \ 3046, (M. & V.) 2398 a. This act seems never to have been repealed. FREIGHT CHARGES IN ALABAMA. [In Alabama]. Discriminations unlawful. Special rates to industrial enterprises allowed. Rates to be posted at depot. " Every person or corporation, owning or oj>erating a railroad in this state, must publish, by posting at all the freight 824 FREIGHT CHARGES. depots along the line of such railroad, the tariffs of rates for the transportation of freight thereon, showing the rates for each class, and including general and special rates; and from such tariffs no reduction shall be made in favor of any person which is not also made in favor of all other persons or corpora- tions by change in such published rates. Special rates, if so published, may be given to any person or corporation to aid in the development of any industrial enterprise in this state." Code Ala. 1896, 3462. 1. Extortions prohibited. See Code Ala. 1896, \ 3460. 2. What evidence that rates are not extortionate. See Code Ala. 1896, 3461. 3. Agreements for pooling- unlawful. See Code Ala. 1896, $ 3464. 4. Railroad commission. The legislature of Alabama has created a railroad commission, whose duty is to revise all tariff of charges for transportation, etc. See Code Ala. 1896, I 3491. Freight or passengers, however, may be transported free in Alabama. "Nothing in this code shall be so construed as to prevent any person or corporation owning or operating a railroad from transporting freight or passengers free of charge. Code Ala. 1896, 3463. Carrier has lien On gOOdS until freight charges paid. 51 Ala., 512. Perishable goods may be sold for freight charges in Ala- bama. "When any fruit, vegetables, fresh meat, oysters, eggs, or fish, or other property of so perishable a nature as to be in danger of great depreciation, has been transported by a common carrier to the place of destination, and remains unclaimed for one day after its arrival, or if the consignee resides, or is present at the place of destination, for one day after personal notice in writing to him, or his agent, of the arrival of the freight, and the amount of charges due thereon, the same may be sold by the carrier or his agent at public out- cry to the highest bidder for cash, at some public place, at the point of destination, on one day's notice, indicating the nature of the package, the consignee and the time and place of sale, by publication in some newspaper published at the place of destination, or, if none is published thereat, then by posting OENKUAI. POWERS OF THE N., C. 4 ST. L. KY. 825 the notice at the office or place of business of the carrier." Code Ala. (1896), 4225. Hut for this section, together with the succeed ing one, the sale could not be made, as by 4321 of the Code of Ala., 1890, a common carrier was prohibited from selling freight entrusted to it. Other goods may be sold for freight charges in Alabama; When. "When any other freight than that mentioned in the preceding section remains unclaimed for sixty days after its arrival at the place of destination, the same may be sold by the carrier or his agent at public outcry to the highest bidder for cash, at some public place at the point of destination, after notice, indicating the nature of the package, the consignee, and the time and place of sale, has been given for three weeks by pub- lication, once a week in some newspaper published at the place of destination, or, if no such paper is there published, by post- ing the notice at three public places therein; but before any sale can be made under this section, the carrier must, before giving notice of the sale, demand payment of the charges due thereon from the owner or consignee, if either of them resides at the place of destination ; but if neither of them resides at such place, failure to make such demand shall not prevent the sale; but notice of such sale must be given the consignor by mail." Code Ala. (1896), 4226. See 50 Ala., 25; 71 Ala., 117; 96 Ala., 447. FREIGHT CHARGES IN GEORGIA. [In Georgia. ] Freight charges must be reasonable; extortion prohibited. "If any railroad corporation organized or doing business in this state tinder any act of incorporation or general law of this state now in force, or which may hereafter be en- acted, or any railroad corporation organized or which may hereafter l>e organized under the laws of any other state, and doing business in this state, shall charge, collect, demand, or receive more than a fair and reasonable rate of toll or compen- sation for the transportation of passengers or freight of any description, or for the use and transportation of any railroad 826 FREIGHT CHARGES. car upon its track, or any of its branches thereof, or upon any railroad within this state which it has the right, license, or per- mission to use, operate or control, the same shall be deemed guilty of extortion, and upon conviction thereof shall be dealt with as hereinafter provided." Code Ga. 1895, 2187. 1. Unjust discriminations. By section 2188 of the same code unjust discriminations are forbidden. See also \ 2214 of same code. 2. Railroad, commissioners. The legislature of Georgia passed an act creating a railroad commission, whose duty it is to make reasonable and just rates of freight and passenger tariffs, etc. See code Ga. 1895, \ 2135 et seq., for powers, duties, etc.. of commission. 3. Storage charges. Railroad commission fixes. Code Ga. 1895, 2206. 4. Demurrage. Railroad commission fixes rate. Code Ga. 1895, \ 2206. Railroad has lien on goods for freight charges in Geor- gia. "The carrier has a lien on the goods for the freight, and may retain possession until it is paid, unless this right is waived by special contract or actual delivery. This lien exists only when the carrier has complied with his contract as to transportation. He can recover pro rata for the actual distance transported when the consignee voluntarily receives the goods at an intermediate point. Code Ga. 1895, 2287. 1. Carrier has a lien for freight unless waived, and can detain goods to satisfy. 12 Ga ., 566. If goods damaged during such detention, car- rier not liable. 85 Ga., 343. If carrier refuses to deliver, when not en- titled to lien, trover lies. 72 Ga., 655. Last carrier has lien for freight on goods ordered shipped over another road, only where without notice of mistake. 72 Ga., 655. Bill of lading not showing .same, last carrier not bound by secret contract with first carrier as to reduced rates. 85 Ga. , 383. Where by mistake rate charged less than interstate commerce act al- lowed, carrier could correct same on discovery and enforce lien for full rate. 94 Ga., 775; but see 96 Ga., 665. May retain any one of several consignments shipped under single contract of sale, to secure lien. 94 Ga., 636. Freight due when goods arrive at railroad yard and consignee notified that they were subject to order. 94 Ga. , 507. If cars inaccessible to consignee's teams, he must first pay freight, and then insist that they be made accessible promptly. 94 Ga., 507. 2. Baggage. Lien on. Baggage can be retained for dues. 25 Ga. 62; but does not exist where the contract is void; 25 Ga., 704. GENERAL TOWERS OF THE N., C. A ST. L. RY. 827 Goods may be sold for freight charges in Georgia, when. "Whenever any person, natural or artificial, exercising the right of transportation for hire in this state, shall transport to the place designated for its delivery any property, and the same cannot be delivered -according to the terms upon which said carrier has agreed to carry it, within six months from and after the time of arrival of such property at the place of de- livery, then and in that case it shall 1x3 lawful for such carrier to sell for cash said property at public auction at such place as m:iy be designated by such carrier, after having duly adver- tised the time, place and terms of sale, once a week for four weeks in some newspaper published or having a general circu- lation in the county wherein such sale is proposed to be made, and the proceeds of sale shall be applied in the Hrst place to the payment of all chrfrges of carriage due to such carrier, together with all expenses incident to such sale and the adver- tisement thereof, and then the residue, if any, of the proceeds be deposited in some convenient state or national bank, located in this state, to be selected by the carrier.'' Code Ga. 1895, 2303. Live stock and perishable goods may be sold for freight Charges in Georgia, When. "Whenever the property so transported and not delivered is live freight, the same may be sold as hereinbefore provided, on five days' notice, and when- ever the property is fruit, vegetables, fresh meat, or other articles of an immediately jxjrishable nature, the same may be sold as hereinl>efore provided, on twenty-four hours' notice. In any case provided for by this section the carrier will give the notice in such manner as the carrier, in the exercise of good faith and with a view to making the best sale, shall deter- mine; but in every such case notice in a newspaper circulating or published at the place of sale, or personal notice to either the consignor or consignee of such freight, for the time for which such notice is required to be given, shall IK; deemed and held sufficient." Code Ga. 1995, 2304. Deposit Of proceeds. " Upon the deposit in bank of the net proceeds of sale the entry of such deposit shall show the names 828 FREIGHT CHARGES. of both consignor and consignee, and the deposit shall not be drawn out except by the consent of both, or on the judgment or order of a court having jurisdiction in the premises. Code Ga. 1895, 2305. FREIGHT CHARGES IN KENTUCKY. [in Kentucky. ] Rates must be just and reasonable ; extor- tion prohibited. " If any rail road corporation shall charge, col- lect, or receive more than a just and reasonable rate of toll or compensation for the transportation of passengers or freight in this state, or for the use of any railroad car upon its track, or upon any track it has control of, or the right to use in this state, it shall be guilty of extortion." Code Ky. (1894), 816. 1. Penalty. See \ 819 of same code. 2. Trial for. See \ 829 of same code. 3. Railroad commission. The legislature of Kentucky has passed an act creating a railroad commission, whose duty it is to see that the laws relating to railroads are faithfully executed, and to exercise a gen- eral supervision over the roads in the state. Code Ky, (1894), \ 821 etseq. Discrimination, what is in Kentucky. " if any corporation engaged in operating a railroad in this state shall, directly or indirectly, by any special rate, rebate, drawback or other de- vice, charge, demand, collect or receive from any person a greater or less compensation for any service rendered in the transportation of passengers or property that it charges, de- mands, collects or receives from any other person for doing for him a like and contemporaneous service in the transportation of a like kind of traffic, it shall be deemed guilty of unjust dis- crimination." Code Ky. 1894, 817. 1. Penalty. See \ 819 of same code. 2. Trial for. See 'i 82'J of same code. Preference or advantage forbidden. See code Ky. 1894, 818. Long and Short haul. See code Ky. 1894, 820. Demurrage. The question as to whether charges made un- der the rules of car service association for detention of cars is GENERAL TOWERS OF THE N., C. A ST. L. RY. 829 a reasonable charge, and the time fixed for loading and unload- ing is a reasonable time, are questions of fact. 98 Ky., 152. Railroad has lien on goods for freight charges in Ken- tucky. A common carrier of freight has a lien u|x>n each shipment so long as it remains in its possession, for the charges thereon, but it cannot refuse to receive freight because back rli:irges for other shipments have not been paid ; nor can it, by mere notice to the shipper, acquire a lien on a shipment about to be made, for such back charges. Eiatern Ky. Ry. Co. v. Holbrook. 4 R., 730. Goods perishable, or unclaimed, and baggage may be sold for freight charges, in Kentucky, when. "Every company that shall have unclaimed freight, not perishable, or unclaimed baggage in its possession, for one year or more, may sell the same at public auction, and, out of the proceeds thereof, retain the expenses of transportation, storage, advertisement, and sale. Notice of such sale shall be given to the consignor and consignee, by letter addressed to each of them, respectively, and mailed to the nearest postoffice to the place at which the goods were received, and to which they were carried; and notice of such sale shall also be published for four weeks in some newspaper of general circulation in the state. In case the freight is perishable, it may be sold as soon as it is deemed necessary and proper, and notice of such sale shall be given, if practicable, to the consignor and consignee, as herein directed. A record shall be kept of the articles sold, and the prices ob- tained therefor, and the surplus, if any, after payment of charges, shall be paid to the owner of such articles, if de- manded at any time within two years from date of sale. Code Ky. 1894, 785. 830 LEASES, ETC. CHAPTER LXX. LEASES POWER OF THIS COMPANY TO LEASE OTHER ROADS- POWER TO LEASE ITS OWN ROAD TO OTHERS WHAT VOTE NECESSARY, AND WHO TO ACT UPON LEASE OF ROLLING STOCK, ETC. Right of Nashville, Chattanooga & St. Louis Railway to lease Other roads. [In Tennessee.] It is a well established principle of law that railway companies have no power, in the absence of statutory authority, to make leases of their road and franchises, nor to receive a lease of the road and franchises of another company. Its charter being in the nature of a con- tract, the corporation cannot voluntarily surrender the powers . and franchises it received from the state, or delegate the duties and obligations it owes to the public, without the express sanc- tion of the state. 130 U. S., 1; 118 U. S., 290; 101 U. S., 71; 17 How., 36; 11 Otto, 71, 87; 6 Lea (Tenn.), 376; 45 Am. & Eng. R. R. Cases, 607; 32 Am. & Eng. R. R. Cases, 409; 39 Am. & Eng. R. R. Cases, 196; 4 Pick. (Tenn.), 153. This being so, it would follow that unless such authority is given in the original charter of the Nashville, Chattanooga & St. Louis Railwa} r , amendments thereto, or by the general law, it cannot be done. Same. Charter provision on subject. There is nothing in the original charter authorizing the company to lease other roads, and nothing relating to its right to lease its road to another company, save the following. Sec. 14, after limiting transportation charges, closes thus: "And provided, also, That the said company may, when they see fit, farm out their rights of transportation on said road, subject to the rates above men- tioned." Charter, sec. 14, p. 9, herein. This section, how- ever, could hardly authorize the lease of the road, franchises, right of way, appurtenances, etc., but simply contemplated and sanctioned the farming out of the right of transportation. GENERAL POWERS OF THE N., C. A ST. L. RY. In other words, the authority was conferred to allow other rail- ways, when the company saw fit, to run their engines and cars on the tracks of the Nashville & Chattanooga Railroad Com- pany and carry freight, subject to the rates therein provided for. It did not contemplate a lease, but simply a license. Amendment to charter authorizing lease of other roads. The legislature of Tennessee, on November 11, 1857, passed the following act: "SEC. 1. That the Nashville & Chattanooga Railroad Com- pany are hereby authorized and empowered to lease the Win- chester & Alabama Railroad and the branch to Fayetteville, or any other railroad connecting with said Nashville & Chatta- nooga Railroad, for such time, and upon such terms and con- ditions as may be agreed upon between the president and direc- tors of the said Nashville & Chattanooga Railroad Company, and the president and directors of the railroad company con- tracted with. SEC. 2. Be It further enacted, That the companies of all laterals and main line railroad companies shall be entitled to the benefits of this act and shall have the benefits, and privileges and powers conferred on the said companies mentioned in the first section of this act. SEC. 3. Be it further enacted, That all railroad companies availing themselves of the privileges of this act, as well as the companies specified in the first section, shall, in the hands of the lessees, be liable to all liens in favor of the state, and to all liabilities imposed by their charters or the general law of the land, in the same manner that the company or companies so leasing would have been had no lease been made; I\'ovidt'd, That the payment of the sinking fund provided for by existing laws shall bo secured by the company so leasing said road." SEC. 4 AND 5. (Relate to other matters). Acts Tenn. 1857-8, ch. 8, p. 5; Code Tenn. (M. & V.), 1249, d. and e.; Shannon's, 150T-8. 1. Validity of this amendment. The foregoing 1 amendment to the charter of the Nashville. Chattanooga & st. Louis Railway was decided by Judge Lurton of the United States circuit court of appeals, sitting at 832 LEASES, ETC. Cincinnati, in the case of J. S. Rodgers v. X. C. & St. L. Ry., to be inop- erative as an amendment; that the second section of the act, by extend- ing- the benefits of the act to all corporations owning either branch or trunk lines, became a general law; but whether treated as a special or general public law, it was a law dealing- with, the power of railroad companies to make or accept leases of the constructed lines owned by other railroad corporations; that the subject was revised in the Code (Tenn.), 1858, and that the effect of such revision was to repeal the pro- visions of the previous act and substitute therefor the legislation found in the code; that the code conferred the power without prescribing the mode of its exercise. The opinion has not as yet been published in any of the reports. 2. The supreme court of Tennessee has never passed upon this amendment, nor has any appeal as yet been taken from Judge Lurton's decision. The supreme court of Tennessee, as well as the United States, may uphold this decision; but with profound deference to the recog- nized ability and great learning of Judge Lurton, we do not believe they will do so. It is true that franchises granted after incorporation, without imposing additional burdens, whether enacted as amendments to the charter or as enabling acts, are ordinarily considered merely gra- tuitous, are not protected as contracts, and may be revoked at pleasure. Thompson on Corp., 5435; 102 Pa. St. 123. The question then resolves itself into whether or not the act has been repealed. It was originally passed as an amendment to the charter of the Nashville, Chattanooga & St. Louis Railway, but by section 2 thereof it was made to apply to "all laterals and main line railroad companies." It may therefore be divided into two parts. The first applying strictly to this company; the second, to all railroad companies. The first part was thus made a special law; the second a general law. This special law has never been repealed, though the general law portion of it has subsequently been modified. As a general rule, moreover, a general law does not repeal a prior special law merely because it embraces the same subject matter. An intent to repeal the special law must be manifested either by express words or by language extending the operations of the general laws to all cases embraced by it, or there must be some inconsistency or absurd- ity in -the two standing together. Lewis on Em. Dom., 248; 3 Sands 689; 25 N. J. L., 54; 36 N. J. L., 198; 25 Mo., 540; 95 N. C., 77; 3 S. C., 381; 34Wis., 173; 5 Ind., 413; 3 Sneed (Tenn.), 119; 1 Head (Tenn.), 114; 3 Lea (Tenn,), 557; 3 Cold. (Tenn.) 438: 16 Lea (Tenn.), Ill; 3 Bax. (Tenn.), 152; 1 Pick. (Tenn.), 451; 4 Pick. (Tenn.), 138; 13 Pick. (Tenn.), 707; 5 Pick. (Tenn.), 723; 12 Pick. (Tenn.), 17; 157 U. S., 58; 109 U. S., 556. Thus where an act incorporating a turnpike company required the rates of toll to be written on signboards in "large or capital letters," and a general act was afterwards passed requiring the rates of toll on turn- pike roads to be written in capital letters, it was held that the private act was not suspended or repealed by the general act. 3 Pick., 342. See, however, 113 111., 340; 13 C. B. (N. S.), 838; Black on Intp. of Laws, 116, 118. GENERAL POWERS OF THE N., C. A ST. L. RY. 833 The question being one of intent, and as there is no legislative in- tent manifested in any of the acts to repeal the special law as applicable to the Nashville, Chattanooga & St. Louis Railway to lease connecting branches, it should be considered as in full force and effect. The carry- ing of the general act portion of it into the code of 1858 should not disturb the special portion. The president and directors of the com- pany, therefore, should, by a liberal interpretation of the act, be em- powered to lease any railway connecting with the Nashville, Chatta- nooga \- St. Louis Railway without regard to the wishes of the stockholders, for the act specifically provides that the lease shall be made for such time and upon such terms and conditions as may be agreed upon between the president and directors of the contracting roads. They were the ones and the only ones required to act. They were to "contract," to "agree," to make the lease for such time and upon such terms and conditions as they might agree upon. No mention is made of the stockholders. They were to do nothing. The acts of 1881, ch. 9, as well as the other acts requiring the consent of tlie stockholders, was much broader in its terms than the acts of 1857-58, ch. 8, and for that reason the legislature very wisely required the consent of the stockholders in the former case, though not in the latter. General law, conferring right to lease other roads. In- dependent of the amendment to the original charter above set out, the right to lease other roads exists under the general laws of the state of Tennessee. The act above referred to was not only passed as an amendment to the charter of the Nashville & Chattanooga Railroad Company, but was also made to apply by section 2 thereof, to "all laterals and main-line railroad companies. This section was very ambiguous, but, as Judge Lurton remarked in the case of Arrowsmith v. N. & D. R. R. Co., 59 A. & E. R. R. Cases, p. 87, " the codiliersof the code of 1858 simplified it, and carried it forward in the code in plain, unequivocal language, and any conflict, if any there lie, be- tween the acts passed during the session of 1857-8 and the code enacted at the same session, must l>e resolved in favor of the code. (Code, 41). The effect of these sections is to permit connecting lines to be leased." 59 A. & E. R. R. OaMO, p. 87. The sections as brought forward in the code of 1858, as 1122, 1123, and subsequently embodied in the code Ten n. (M. & V.), 1249d, 1249*?, were as follows: 53 834 LEASES, ETC. "A railroad company owning any main line may contract with any company owning a railroad connecting with such main line for the lease thereof." Code Tenn. (M. & V.), 1249C?; Shannon's code, 1507. "The lessee shall hold such road subject to the liens and liabilities to which it was subject in the hands of the lessor, and be bound for all payments for which the lessor was liable." Code Tenn. (M. & V.), 1249^; Shannon's code, 1508. Same. The next act relating to leases was passed March 13, 1868. This act, however, conferred no power to lease, but simply restricted its exercise among roads that already possessed the authority. It prohibited receivers, pres- idents, or president and directors or superintendent, other offi- cers or agents from making a lease without the consent of the requisite majority of the stockholders. In other words, it was simply a legislative recognition of the common law. Acts Tenn., 1867-68 (Public), ch. 72, p. 92. As the provisions of this act, however, were superseded by the Acts of Tenn., 1881, ch. 9, p. 10, sees. 2-3, there is noth- ing of any practical value left in it, if the Acts of Tenn., 1881, are constitutional. Same. The next act relating to leases was passed January 27, 1870, the fourth section of which provided: "That it shall and may be lawful for the Mississippi River Railroad Company, and any other railroad company created by and existing under the laws of this state, and for any lessees of a railroad of such company, from time to time, to subscribe for or purchase the stock and bonds, or either, of any other railroad compan} r or companies chartered by, or of which the road or roads is or are authorized to extend into this state; and to make contract with such company or companies for the construction, maintenance, repairs, or equipment, as well as lease of such other railroad or railroads, upon such terms as may be agreed upon by the com- pany or companies owning the same, or by the companies and such lessees; Provided, That the roads of the said companies so contracting or leasing shall be directly, or by means of in- tervening railroads, connected with each other; And provided (,|.M .KM. 1'OWERS OF THE X., C. A ST. L. RY. 836 fin-tin'?, That the authority herein conferred, of subscribing or purchasing stock or lx>nds, or leasing any railroad, shall not, when exercised, in any way impair the statutory lien created in favor of the State of Tennessee, under the general internal improvement laws of the state, on the roadbed, rolling stock, and equipment of either of the roads, or deprive the state, through its general assembly, from passing any and all laws which may be deemed necessary and proper to preserve the debt that may be due and owing to the state because of any state aid furnished to either of the contracting parties or roads." Acts Tenn. 1869-70, ch. 49, p. 327, sec. 4. See also code Tenn. (M. & V.), 1262; Shannon's code, $1520. See also acts Tenn. 1871, ch. 69, which might be construed into authority to lease. Code Tenn. (S.), 1509; (M. & V., jt 1250. Same. The next act relating to leases was passed in 1881, and provided, among other things, by section 2, that "all railroad companies now or hereafter existing under the laws of this state, or of this state and any other state or states, be and they are hereby authorized and empowered to build, lease, or let, acquire by purchase, lease or otherwise, and operate, hold, or dispose of any railroad or railroads in any state or states, or any parts or portions of any such railroad or railroads, and the distribution thereof, as may be determined upon by their stockholders; Provided, That the same be approved by the votes of the holders of three-fourths in amount of the entire stock of said company, at a regular" or called meeting of the stockholders of said company. . . . Pivoided further, That sixty days' notice be given in a Memphis, Knoxville, and Nashville daily newspaj)er of the time, place, and purpose of the meeting." Acts Tenn. 1881, ch. 9, p. 10, sec. 2. Code (M. & V.) $ 1275; Shannon's code, 1540. This act, how- ever, is open to many objections from a constitutional stand- point on account of its caption, though it has never l>een de- clared unconstitutional. The supreme court has never passed upon it save indirectly. See 4 Pick. (Tenn.), 140. 836 LEASES, ETC. Same. The next act relating to leases was passed in 1891, as an amendment to the above act, and provided: " Provided, The same be approved by the vote of three-fourths in amount of the capital stock of said company present and voting, either in person or by written proxy, at a regular or called meeting of the stockholders. Acts Tenn. 1891, ch. 61, p. 146; Shan- non's code Tenn., 1540. Same. The next act relating to leases was also passed in 1891, and during the same term of the legislature as the above. It provided, "That any and all railroad companies now or hereafter existing under the laws of this state, or of this state and any other state or states, whose charter of in- corporation was or may be granted by this state, be and they are hereby authorized and empowered to acquire the line or lines of any other railroad company, either in this state or in any other state or states which may connect with and form parts and parcels or branches or extensions of the line of such company chartered by this state, or by this state and any other state or states; and are authorized and empowered to so acquire such branches or extensions by purchase, lease, or otherwise, and pay for the same by the issue of their own capital and bonds, or by guaranteeing those issued by the com- pany whose line may be so acquired, purchased, or leased; Provided, however, That nothing in this act shall be construed so as to authorize the acquisition in any way by any corpora- tion or company of parallel or competing lines." Acts Tenn. 1891, ch. 125, p. 274; Shannon's code Tenn., 1521. Summary. From the foregoing acts it will clearly appear that the Nashville, Chattanooga & St. Louis Railway has now the right to lease other railroads. Though the right exists, the method of doing so, that is, whether to be done by president and directors, or by stockholders, together with the proper meeting and vote necessary, is left in considerable doubt by the seeming conflicts in the acts heretofore set out. These ques- tions, however, will now be discussed. Who to authorize lease, directors or stockholders. if the acts Tenn. 1857-8, ch. 8, p. 5, heretofore referred to, and GENERAL POWERS OF THE N., C. A ST. L. RY. 837 which was passed as an amendment to the charter of the Nash- ville, Chattanooga & St. Louis Railway, is now in full force and oj>eration as such, the president and directors of said com- pany, alone, without the ratification of the stockholders, may lease any railroad connecting with it, for such time and upon such terms and conditions as ma}' be agreed upon lietween them and the president and directors of the railroad company contracted with. As this amendment has been decided, however, as here- tofore explained, not to be in full force and operation as such, prudence should require that no action be taken thereunder until the question is finally decided. Laying aside, therefore, this amendment, the general laws alone must l>e relied upon. In doing this, it must be borne in mind that, in the absence of statute, the directors of a railroad company have no authority to lease another road, or to lease their own road to another company, without the consent of the stockholders. It is true the board of directors are the managers of the business which the corporation is chartered to carry on, and they have the control and management of that business, "but they have no power to effect organic and fundamental changes in the cor- poration or its business without the consent of the stockhold- ers. They are elected for a specified time to manage its affairs, and at the expiration of that time they .are expected to turn over to the corporation the property with which they have been entrusted. They cannot dispose of it, and thus put it out of their power to return, or lease it, and thus change its busi- ness from that of making, constructing, maintaining, and op- erating a railroad to that of receiving rents for the use of such road. Such an act would involve a withdrawal from the con- trol and management of the stockholders the entire pro|>erty of the corporation forever, or for the term of years mentioned in the lease, and deny them the right of suggestion and disap- proval as to its operation and management." 15 Am. & Eng, R. R. Cases, 56; 13 Reporter, 167; 18 Wall., 234. This being so, under the general law, the proposition to lease must l>e submitted to the stockholders and acted upon by them. 838 LEASES, ETC. What vote and notice necessary to lease another road. if the amendment to the charter as heretofore set out, acts Tenn. 1857-58, p. 5, is still in full force and effect, the president and directors can, at a legally called meeting, by a majority vote of their own members, make the lease without the consent of the stockholders. As the amendment has been held inopera- tive, however, as heretofore explained, prudence should require that the general acts be followed until the question is finally decided. The vote and notice necessary under those acts will now be discussed. In the case of J. S. Rogers v. Nashville, Chattanooga & St. Louis Railway, decided by the United States circuit court of appeals sitting at Cincinnati, November 9, 1898; but which opinion has not as yet been published in any of the reports, Judge Lurton, in construing these acts, held that "the acts of 1881, ch. 9, heretofore set out, regulated-the power of leasing conferred by 1122 of the code of Tenn., by requiring that such leases should be approved by three-fourths in amount of the entire capital stock of the leasing company; that the acts of 1887, ch. 198, heretofore set out, authorized all corporations ' exist- ing under the laws of this state to lease and dispose of their property ' to any corporation of this or any other state ' en- gaged in or carrying on .... the same general busi- ness as is authorized by the lessor corporation, ' and such lessee corporation was by the same act authorized to accept any such lease. The act contains several provisos, one of which was that any such lease should be made under the direction of the directors of such corporation when authorized or approved by the vote of a majority in amount of the stock of each corpora- tion. Another proviso provided that ' this act shall not be so construed as to authorize any corporation of this or any other state to lease or purchase any competing line of railroad.' This act makes no reference to any previous legislation upon the same subject and contains no repealing clause. Inasmuch as it conflicts in respect to the previous mode of exercising this power of leasing or purchasing railroads, it must be regarded as so amending the acts of 1881, ch. 9, as to require only the GENERAL POWERS OF THE N., C. A ST. L. RY. 839 consent of a majority of the stockholders of each contracting company. This was followed by the acts of 1891, ch. 61, which amended the acts of 1881, ch. 9, so that section 2 of that act should read: ' Pwoided, That the same he approved by the vote of three-fouiths in amount of the capital stock of said company present and voting, either in person or by writ- ten proxy, at a regular or called meeting of the stockholders of said company.' This act makes no reference to the act of 1887, ch. 198, and contains no repealing clause. The neces- sary effect of the act was to revive the provisions of the older act of 1881, so far as they related to the subject of leasing or purchasing railroads by railroad corporations 'existing under the laws of Tennessee,' 'or of this and any other state or states.' The conclusion we reach is that the power of the Nashville, Chattanooga & St. Louis Railway to accept a lease depends upon the acts Tenn. of 1881, ch. 9, as amended by the acts Tenn. of 1891, ch. 61.' " Under this decision, therefore, in order to lease another rail- road, the proposition must be approved by the vote of three- fourths in amount of the capital stock of the company present and voting, either in person or by written proxy, at a regular or called meeting of the stockholders of said company, and that sixty days' notice be given in Memphis, Knoxville, and Nashville daily newspapers of the time, place, and purpose of the meeting. 1. It will be noticed that only three-fourths of the stock present and voting is required. This would not necessarily require three-fourths of the entire capital stock unless that amount was present and voting. 2. Both roads must have power. In order to lease or sell a road, the lessor or vendor company must have power to lease or sell, and the les- see or vendee company must have power to accept the lease, or to buy. 161 U. S., 86; 99 Ky., 570 Right of Nashville. Chattanooga & St. Louis Railway to lease its own road, or any part thereof, to another com- pany. As heretofore shown, the Nashville, Chattanooga & St. Louis Railway has the |K>wer to lease other railways. We will now discuss the authority to lease its own road or any part thereof to another company. This cannot be done 840 LEASES, ETC. without legislative authority expressed either in the charter or in the general law. There is nothing in the charter or amendments thereto, upon the subject. The only clause having any reference to the sub- ject is to be found in section 14, which, among other things, provides as follows: " And provided also, that the said company may, when they see tit, farm out their rights of transportation on said road, subject to the rates above mentioned."' This sec- tion, however, could hardly authorize the lease of the road franchises, right of way, appurtenances, etc., as before ex- plained, but simply contemplated and sanctioned the farming out of the right of transportation. In other words, the author- ity was conferred to allow other railways, when the company saw fit, to run their engines and cars on its tracks. It did not contemplate a lease, but simply a license. This being so, the right to lease, if it exists at all, must be found in the general law. There are seven acts of the legisla- ture in this state bearing upon the subject of the leasing of railway?. The first is that of 1857-8, p. 5, heretofore set out, which, however, only empowers one railway to lease another. It does not authorize the lease of their own road to another company. The second is that of 18678, p. 92, heretofore set out, which, however, did not confer the power upon railways to lease their tracks, etc., but simpty regulated the exercise of that power among roads already possessing it. The third is that of 1869-70, ch. 49, p. 327, as heretofore set out, which, however, only related to the leasing by one railway of another railway. The fourth is that of 1881, p. 10, ch. 9, as heretofore set out, which only authorized railways to lease other railways. It did not authorize a railway to lease its tracks to another company. The fifth is that of 1887, ch. 198, p. 329, and which is the only act giving the authority in this state. It provides that " all corporations now or hereafter existing under the laws of this state, whether incorporated under special or general laws GENERAL POWERS OF THE N., C. A ST. L. RY. 841 of the state, shall have the power, and they are hereby author- ized and empowered to lease and dispose of their proporty and franchises, or any part thereof, to any corporation of this or any other state engaged in or carrying on, or authorized by its charter to carry on, in this or any other state, the same gen- eral business as is authorized by the charter of any such lessor corporation - ; Provided, however, That any such leases or contracts, when made by or under the direction of the board of directors of the contracting corporation, shall be authorized or approved by the vote of a majority in amount of the stock of the lessor corporation present or represented at a regular or called meeting of the stockholders of said corporation, and pro- vided further, that sixty days notice of such meeting be given in a Memphis, Knoxvilleand Nashville daily newspaper of the time, place and purpose of such meeting,' 1 etc. Code Tenn. (Shannon), 2043. The sixth and seventh acts are those heretofore set out as passed in 1891 on pp. 146, 274, respectively. These acts, however, only relate to the leasing by one i ail way of another. They do not authorize a railway to lease its road to another. Same. Who to authorize, stockholders or directors ; vote necessary. As will be seen, therefore, the act of Tenn. 1887, p. 329, ch. 198, above set out, is the only authority now ex- isting by statute in this state authorizing a railway to lease its road to another. This being the only act, its provisions must be strictly followed, and the president and directors of the Nashville, Chattanooga & St. Louis Railway cannot, by them- selves, perfect a valid and binding lease of the road to another company without the authority or approval of a vote of a ma- jority in amount of the stock of the company present or rep- resented at a regular or called meeting of the stockholders, and that sixty days' notice of such meeting must l>e given in a Memphis, Knoxville, and Nashville daily newspaper of the time, place, and purpose of such meeting. Prior to the acts of Tenn. 1887, ch. 198, above referred to, there was no general law authorizing a railway to lease its road, or any part thereof, or even its joint use, to another company. Hence, when this company desired to convey a joint use of its tracks to the Memphis A 842 LEASES, ETC. Charleston Railroad Company, from Stevenson, Ala., to Chattanooga, a special act had to be passed authorizing- it, which was done as per acts Tenn. 1857-8, ch. 150. It gave authority to the Nashville & Chattanooga Railroad to contract with the Memphis & Charleston Railroad for the joint use of the track on such terms as the roads might agree upon. Power of Nashville, Chattanooga & St. Louis Railway to lease its purchased or leased roads in Tennessee. The Nash- ville, Chattanooga & St. Louis Railway has purchased and leased many railroads in the state of Tennessee, together with all their rights, privileges, and franchises. In ascertaining its power to lease or sell those roads to other companies regard must also be had to their charters, amendments, etc., as well as to the laws of Tennessee, affecting them. In other words, as to the lines of the roads so purchased, the Nashville, Chatta- nooga & St. Louis Railway would be vested with all the powers and privileges and subject to all the duties and liawb'ties of the respective original companies. If they originally had the power to lease or sell, then the Nashville, Chattanooga & St. Louis Railway would have that power as to their particular lines as fully and completely as the original company or com- panies had. Roger* v. Nashville, Chattanooga A St. Louis Railway et al., decided Nov. 9, 1898, by the United States circuit court of appeals, sitting at Cincinnati, but which opin- ion has not as yet been reported. See also 15 Lea (Tenn.), 37; 112 U. S., 610. The same would be true as to the lines of any railroads the Nashville, Chattanooga & St. Louis Railway has leased or may hereafter lease in Tennessee, if all their rights, powers, privileges, and franchises passed in the absence of any clause in the lease prohibiting subleasing. Even should there be a clause, however, prohibiting subleasing, that would not pre- vent a mortgage or assignment of the entire leasehold interest, as that would be in no manner a violation of a covenant not to sublet. 27 Barb. (N. Y.), 415; 25 N. J. L. (1 Dutch), 291, 285; 33 N. J. L. (4 vr.), 254; 47 Minn., 189; 15 L. R. A., 236; 16 Johns, 159; 1 Wood on Land and Tenant, sec. 258, 327; Taylor on Land and Tenant, sec. 16; 129 111., 318; 14 Lea (Tenn.), 92; 9 Lea (Tenn.), 1. GENERAL POWERS OF THE X., C. A ST. L. RY. 843 Railways may lease rolling stock and equipments, and pro- vide for conditional sale thereof.- For terms and conditions, sec heading "Sale," herein and acts Tenn., 1885, ch. 9ti. ALABAMA ACTS AS TO LEASING. [In Alabama.] Power of the Nashville, Chattanooga & St. Louis Railway to lease other roads, or to lease its own road, in Alabama In discussing this it is necessary to bear in mind that, as to its main line, the Nashville, Chattanooga & St. Louis Bail way is a foreign corporation in Alabama, though, as to the lines of those Alabama railroads it has purchased, it is a do- mestic corporation there. A corporation is not incorporated in a foreign state simply by the purchase or lease of a domestic railroad of that state (Elliott on Railroads, sec. 26; 1 Hilton (N. Y.), 62; 30 N. J. L., 473; 31 N. J. L., 531; 32 Ohio, St. 468; 50 Pa. St., 26; see, however, 85 Tenn., 189); but it would be domesticated as to the lines of the roads so purchased, and, hence, no suit growing out of the operation of a road so purchased could be removed to the federal court on the ground of " nonresidence. " 108 U. S., 436; 14 Minn., 303; 43 Mich., 354; 1 Wall., 40; 12 Wall., 65, 82. See also 90 Ga., 523; 76 Ga., 99; 9 Am. & Eng. II. 11. Cases, 201; 53 Ala., 237,; 21 Law Rep., 138; 3 Tenn. Ch., 602; 59 Ga., 263; 2 Woods, 409; 30 Fed. Cases, 73. A railroad chartered by two states is a citizen of each. 118 U. S., 161. It is true the State of Alabama authorized the Nashville, Chattanooga & St. Railway to build its main line in that state, and conferred upon it "all the rights, privileges, immunities," etc., of its Tennessee charter (see p. 55 et wy. herein), but this did not domesticate the main line of the Nashville, Chattanooga & St. Louis Railway in Alabama, nor did its subsequent pur- chase of the Tennessee & Coosa Railroad, the Middle Tennessee & Alabama Railroad, or the Huntsville & Elora Railroad. 32 Fed. Rep., 849; 21 Fed. Rep.. 817; 20 Am. & Eng. R. R. Cases, 597; 22 Fed. Rep., 353; 46 Mich., 224; 76 Ala., 388; 13 Am. & Eng. R. R. Cases, 296; 23 Am. & Eng. R. R. 844 LEASES, ETC. Cases, 487: 49 N. J. L., 193; 129 Pa. St., 463; 18 Alt. Rep., 412. See also 118 U. S., 290; 104 U. S., 5. Same. Power as to its main line, to lease. The Nashville, Chattanooga & St. Louis Railway proper being a foreign corpora- tion in Alabama, as heretofore explained, reference must be hud to the law of its organization as well as to the general powers conferred upon it in the state of its creation in determining its power to lease in Alabama. Corporations going beyond the jurisdiction that created them can ordinarily do only those things which, by express grant or necessary implication, they are au- thorized or empowered to do by the laws of the state granting their charters. 36 Am. &Eng. R. R. Cases, 449; 74 Texas, 474; 8 S. W. Rep., 533; 35 Kas., 236; 10 Pac. Rep., 596; 24 Am. & Eng. R. R. Cases, 34; 3 Head (Tenn. ), 337; 72 III., 50; 22 Am. Rep., 133; 29 Barb. (N. Y.), 650; Thompson on Corp., sec. 7920; 1 R. (Ky.), 8. It has been held, however, that a foreign corporation author- ized by an act of the Assembly of the State it desires to enter to construct a portion of its road through the State, is entitled to the same rights and privileges as domestic corporations. 6 Watts & S. (Pa.), 101; 33 Pa. St., 175; 14 Pa. St., 65; 6 Whart. (Pa.), 45; 14 How. (U. S.), 80. But a foreign corporation cannot by comity exercise powers within a state which a domestic corporation would be prevented from exercising under the constitution of the state. 52 Am. & Eng. R. R. Cases, 115; 50 Fed. Rep., 338. It may be done, however, by express legal permit from the legislature. From the foregoing it will clearly appear that the power of the Nashville, Chattanooga & St. Louis Railway proper to lease its road, or to lease other roads in Alabama, must largely de- pend on the powers it possesses in Tennessee. As it has here- tofore been shown that it possesses those powers in Tennessee, it follows that it possesses them there in the absence of any legal legislation to the contrary, which does not now exist. 1. Lease of part of line. If the power to lease exists, the power to lease a part of the line instead of the whole also exists. Ill N. Y., 1, 64; 83 la., 720; 50 Ind., 85. See also 77 N. Y., 232; 45 Colo., 365; 37 Ga., 644, GENERAL POWERS OF THE N., C. A ST. L. RV. 2. Both roads must have power. In order to lease pr sell a road the lessor or vendor company must have power to lease or sell, and the lessee or vendee company must have power to accept the lease or to buy. 161 U. S., 086; 99 Ky., 570. Same, power to lease its purchased roads in Alabama. The Nashville, Chattanooga & St. Louis Railway lias purchased the Tennessee & Coosa Railroad (see p. 287 et #e true as to the lines of any roads the Nashville, Chattanooga <& St. Louis Railway might lease in Alabama if all their rights, powers, privileges, and franchises passed, in the absence of any clause in the lease prohibiting subleasing. Even should there be a clause, however, prohibiting subleasing, that would not prevent a mortgage or assignment of the entire 846 LEASES, ETC. leasehold interest, as that would be in no manner a violation of the covenant not to sublet. 27 Barb. (N. Y.), 415; 25 N. J. L. (1 Dutch), 291, 285; 33 N. J. L. (4 Vr.), 254; 47 Minn., 189; 15 L. R. A., 236; 16 Johns, 159; 1 Wood on Landlord & Tenant, sees. 258, 327; Taylor on Landlord & Tenant, sec. 16; 129 111., 318; 14 Lea (Tenn.), 92; 9 Lea (Tenn.), 1. May lease, purchase, aid, or take stock in other roads, by Alabama acts. A corporation, chartered under the laws of this or any other state heretofore or hereafter created for the purpose of building, constructing, or operating a rail- road, may, at any time, by means of subscription to the capital of any other corporation or company, or otherwise, aid such corporation or company in the construction of its railroad, for the purpose of forming a connection with the road owned by such corporation or company furnishing aid; or any railroad corporation, organized in pursuance of the laws of this or any other state, may lease or purchase any part or all of any rail- road constructed by any other corporation or company, if the lines of such road are continuous or connected, upon such terms and conditions as may be agreed on between the corpo- rations or companies respectively; or any two or more rail road corporations or companies, whose lines are so connected, may enter into any arrangement for their common benefit, consistent with, and calculated to promote the objects for which they were created ; but no such aid shall be furnished, nor any pur- chase, lease, or arrangement perfected, until a meeting of the stockholders of each of such corporations or companies has been called by the directors thereof, at such time and place, and in such manner as they shall designate; and the holders of a majority in value of the stock of such corporation or com- pany, represented at such meeting, in person or by proxy, and voting thereat, shall have assented thereto. Code Ala., 1896, 1170. 1 . Without statutory aid, railroad has no power to lease its prop- erty. 88 Ala., 572; 101 Ala., 607. 2. Lease invalid unless both corporations follow above statute. 10 Ala., 607. 3. The above section doubtless authorizes leases for any reasonable GENERAL POWERS OF THE N., C. A ST. L. RY. 847 time, though section 1033 of the same code provides that: ' No leasehold estate can be created for a longer term than twenty years, though if made longer it is only void as to the excess. 1 ' 83 Ala., 290. 4. For powers conferred on Nashville, Chattanooga & St. Louis Rail- way by state of Alabama, see pp. 55-60. herein. 5. By Acts Alabama, 1898-99, No. 408, p. 28, domestic corporations were authorized to sell their railroads to foreign corporations iu a method theiein set out. 6. Power to lease purchased road. The Nashville, Chattanooga rated under the laws of this or any other state or of the United States, whose railroad within or without this state shall connect with or form a continuous line with the railroad of the company incorporated under this law, upon such terms as may be agreed upon, and, conversely, any such corporation organ- ized under the provisions of this article may purchase, lease, con- solidate with, and absorb and merge into itself the stock, prop- erty, and franchises of any other railroad company incorpo- rated under the laws of this or any other state or the United States, whose railroad within or without this state shall connect with or form a continuous line or system with the railroad of such company incorporated under this law, upon such terms as may be agreed upon. And it shall be lawful for any railroad company or corporation, now or hereafter formed by the con- solidation of one or more railroad companies, or corporations, organized under the laws of this state, or under the laws of this state and any other states, with one or more companies or corporations organized under the laws of any other state or under the laws of this and other states, to issue its bonds and stock as provided for in this article, in such amounts as they may deem necessary, for the purpose of paying or exchanging the same for or retiring .any bonds or stocks theretofore issued by either of the said companies or corporations so merged, purchased or consolidated, or for any other purpose, and to the amount authorized by the laws of the state under which either of said companies or corporations so consolidated was organized, and to secure the same, in case of bonds, by mort- gages or trust deeds upon its real or personal property, fran- chises, rights, and privileges, whether within or without this state; Provided, That no railroad company shall make any contract under the provisions of this section with any other railroad company which is a competing line that is calculated to defeat or lessen competition in this state or to encourage monopoly. Georgia code (1895), 2179. Same. May lease or purchase other railroads. " Said railroad company shall have the power to make contracts with 852 LEASES, ETC. any railroad company which has constructed or shall hereafter construct any railroad within this state, or any other state, that will enable said company to run their roads in connection with each other, and merge their stocks, or to consolidate with any such company within or without this state, or to lease or purchase the property of any other such company and hold, use, and occupy the same in such manner as they may deem most beneficial to their interest; Provided, That no railroad shall purchase a competing line of railroad, or enter into any contract with a competing line of railroad calculated to defeat or lessen competition in this state, and any violation of this section shall subject the corporation to all the penalties inci- dent to such violation of the law." Code Ga. 1895 2173. Lessee subject to burdens of lessor corporations. All cor- porations, foreign or domestic, operating the franchise of a corporation chartered by this state are subject to its burdens, and can be sued when and where and for like causes for action for which suits could have been maintained asrainst such other O corporation were it in possession of the franchise so acquired or usurped. Code Ga. 1895, 1863. Corporation liable, notwithstanding sale or lease. A cor- poration charged with a duty to the public cannot, by sale or otherwise, dispose of its property or franchises so as to relieve itself from liability for acts done or omitted, without legislative sanction expressly exempting it from liability. Code Ga. 1895, 1864. Lessor railroad liable for acts of lessee, although authorized by legis- lature to lease, but without express exemption from liability. 70 Ga., 464. Foreign corporations; how recognized in Georgia. Cor- porations created by other states or foreign governments are recognized in our courts only by comity, and so long as the same comity is extended in their courts to corporations created by this state. Code Ga., 1846. The existence of a corporation may be recognized in another state and there contracted with. 14 Ga. , 328. Proof of diploma of foreign medical corporation. 27 Ga., 76, 77. I?y producing charter of such corporation. 59 Ga., 100. CKXEKAL POWERS OF THE N., C. A ST. I.. RV. 853 Comity controls as to foreign corporation's right to sue here. 23 Oa., 448-458. Montgomery *t West Point Railroad sued in Georgia by one of her citi/ens. although the cause of action originated in Alabama. 39 Ga., BM. Foreign corporation garnisheed for a debt it may owe any where in the state. 48 i ia.. 351. Specific performance cannot be enforced against a domestic corpora- tion as to contract as to land to be performed in another state. 58 (la., 323, 328. Cannot recover lands in Georgia without showing power under foreign charter to hold hinds. 66 Ga., 529. Railroad company incorporated under act of 1876 not a foreign cor- poration. 72 Ga., 423. Georgia railroad charter authorizing sale of franchises, foreign pur- chaser became domestic corporation. 74 Ga., 634. Decree against corporation, appointing receiver to collect assessments of stock subscriptions, binding on nonresident subscriber. 85 Ga., 238. Same. What powers they may not exercise. No foreign corporation shall exercise within this state any corporate powers or privileges which, by the constitution or laws of Georgia, are denied or prohibited to corporations created by this state, or the exercise of which is contrary to the public policy of this state, anything in the charter or corporate powers of the for- eign corporation to the contrary notwithstanding. Code Ga. 1895, $1847. Same. Penalty. Whenever any foreign corporation shall exercise, or attempt to exercise, within this state any corporate power or privilege denied or prohibited to corporations created by this state by the constitution or laws of this state, or con- trary to the public policy of this state, it shall l>e the duty of the courts to declare said corporate powers or privileges in- valid and of no force or effect in this state, and to restrain or prohibit, by appropriate process, order, or judgment, the exer- cise of said corporate powers or privileges by said foreign cor- poration, at the instance of any party at interest, or at the in- stance of the attorney-general, when the latter shall IK? directed by the governor to proceed to that end in the name of the state. Code Ga., 1895, sec. 1848. Same. Ownership of land by foreign corporation Any foreign corporation or corporations incorporated by the laws 854 LEASES, ETC. of any other state, and claiming to own lands in Georgia in quantity amounting to as much as live thousand acres, shall be incorporated by the laws of Georgia within twelve months after February 28, 1877; and on their failure to do so, the State of Georgia will not consent to the said corporation owning the said lands so located in her territory. And any foreign corporation incorporated by the laws of other states, who shall thereafter claim to own land in the State of Georgia in quantity amount- ing to five thousand acres or upwards, shall become incorpo- rated by the laws of the State of Georgia, and in default thereof Georgia will not consent that said foreign corporation shall own said lands in her territory; and no foreign corpora- tion incorporated by the laws of another state shall own more than five thousand acres of land except upon the condition of becoming a corporation under the laws of Georgia; Provided, That this section shall not apply to any foreign corporation, or any corporation incorporated by the laws of any other state, engaged in the business of lending money on real estate secur- ity, nor to any such corporation which, holding a lien upon real estate to secure the payment of any debt, when said cor- poration, in order to prevent loss, is compelled to become the purchaser of lands covered by deed or mortgage to secure a loan; And provided, hmvever, That the benefits and privileges of the foregoing proviso shall not apply to any foreign corpo- ration which does or may lend money in this state at a greater rate of interest than eight per cent, per annum. In estimating the amount of interest charged, there shall be included an}' and all commissions or fees which may be paid to said company or its duly authorized agents. CodeGa., 1895, sec. 1849. Borrower cannot, by illegality to mortgage Ji. /a., question right of lender, a foreign corporation, to own more than five thousand acres. State alone can make the question. 87 Ga., 28. Same. Charter of foreign corporation, how far binding in Georgia. Where a foreign corporation does business in this state and relies upon provisions in its charter different from those imposed by the laws of this state, under similar circum- stances, it must show that the opposite party had notice of such GENERAL POWERS OF THE N., C. A ST. L. BY. 855 provisions at the time the contract was made. Code Ga. 1895, 1850. Railroads using the same terminal tracks. Two or more chartered railway companies, whose lines terminate in the same city, may, by contract, within the corporate limit-, use the same track in common, with or without common owner- ship, and, when they do so, the company owning the track is not responsible to its employes for injuries sustained solely by reason of the negligent use of the track by the employes of the other company. Code Ga. 1895, 1865. Common powers of corporations under Georgia law. All corjKmitions have the right to sue and be sued, to have and use a common seal, to make by-laws, binding on their own mem- bers, not inconsistent with the laws of this state and of the Tnited States; to receive donations by gift or will; to puchase and hold such property, real or personal, as is necessary to the purpose of their organization, and to do all such acts as are necessary for the legitimate execution of this purpose. Code (Ga.), 1895, sec. 1852. Ordinance of a city regulating the sale of gunpowder is valid. 4 Ga., 509. A railroad corporation can make contract (17 Ga., 574). A by- law asserting a lien on the stock of the members is binding as between the corporators (1 Ga., 43). But a by-law infringing upon a valid statute relating to corporations is void (12 Ga., 404). City of Augusta has power to establish such by-laws as are necessary, and not repugnant to the constitution and laws (38 Ga., 542). Where by-law valid, but society could be controlled in its construction and enforcement (38 Ga.. 608). Where no individual liability is created by the charter or general laws, a by-law of the corporation cannot impose it (40 Ga., 98.) When the execution of a morgage by the agent of the corporation binds the corpo- ration (25 Ga , 316). Agent can bind the corporation by note if acting within sphere of his powers, or there is after ratification of it by the principal (6 Ga., 166). Excursions as a matter of trade or business with the public, are not within the means or ends for which a church was in- corporated (63 Ga., 186-194). Where a contract is beyond the scope of the corporate powers, no remedy can be had for damages for breach of (53 Ga., 62">). Suing need not state how incorporated or aver that it is a corporation (55 Ga., 672). In suits to recover on subscription to stock, calls for should be clearly proved, but need not show that a certificate of stock has been tendered the subscriber (56 Ga.. 230). Notice Mto calls in relation to stock subscriptions (57 Ga., 314). Hy-laws control officers of, where they accept office and serve under such by-law known 856 LEASES, ETC. to them (58 Ga., 240). See 87 Ga., 533. Members of company not liable as partners under summons of garnishment directed to corporation (69 Ga.. 751). Whether corporation (a bank) acted ultra vires in running iron works to collect debt due to bank, was fairly submitted to jury (74 Ga., 454). Defendant sued as corporation having pleaded afc> such, not prejudiced by incompetent parole proof that it was a corporation (88 Ga.. 193). Corpo- ration cannot, ordinarily, become member of partnership (74 Ga. , 509; 75 Ga., 567). KENTUCKY ACTS AS TO LEASING. [In Kentucky.] Power of Nashville, Chattanooga & St. Louis Railway to lease its road, or to lease other roads in Kentucky. It must be borne in mind in discussing this subject, that the Nashville, Chattanooga & St. Louis Railway proper never extended into the state of Kentucky. It purchased the Nashville & Northwestern Railroad, which extended from Nash- ville, Tenn., to Hickman, Ky., and which road had been char- tered by both the states of Tennessee and Kentucky [see p. 76 herein], and leased the Paducah, Tennessee & Alabama Rail- road, a corporation of Kentucky [see p. 487 herein], but the line of the road constructed under its own charter never ex- tended into Kentucky. As to the line of the Nashville & Northwestern Railroad and the Paducah, Tennessee & Alabama Railroad, therefore, it is clear it has become a domestic corporation of Kentucky. 34 Minn., 303; 1 Wall., 40; 108 U. S., 436; 43 Mich., 354; 12 Wall., 65, 82; 90 Ga., 523; 76 Ga., 99; 9 Am. & Eng. R. R. C., 201; 53 Ala., 237; 21 Law Rep., 138; 3 Tenn. Chy., 602; 59 Ga., 263; 2 Woods, 409; 30 Fed. Cas., 73. A railroad chartered by two states is a citizen of each. 118 U. S., 161; 1 Black (U. S.), 286; 32 VV. Va., 164. As to its main line, though no part of it ever extended into Kentucky, yet when the Paducah, Tennessee & Alabama Rail- road was leased the Nashville, Chattanooga & St. Louis Rail- way complied with 190, 570, 765, and 841 of the code of Ky. 1894, the provisions of which are set out further on in this chapter. It is probable that this domesticated the Nash- CKNKKAL I'OWKKS OF TMK N., C. A ST. L. KY. 857 ville, Chattanooga & St. Louis Railway proper in the state of Kentucky. Same. Power, as to its main line, to lease. if the Nash- ville, Chattanooga & St. Louis Railway is now a foreign corpo- ration of Kentucky, which is extremely doubtful, as heretofore explained, reference must be had to the law of its organization, as well as to the general powers conferred upon it in the state of its creation, in determining its power to lease in Kentucky. Corporations acting beyond the jurisdiction that created them can do only those things which, by express grant or necessary implication, they are authorized or empowered to do by the laws of the state granting their charters. 36 Am. & Eng. R. R. Cases, 449; 74 Texas, 474; 8 S. W. Rep., '533, 35 Kan., 236; 10 Pac. Rep., 596; 24 Am. & Eng. R. R. Cases, 34; 3 Head (Tenn.), 337; 72 111., 50; 22 Am. Rep., 133; 29 Barb. (N. Y.), 650; Thompson on Corp., sec. 7920; 1 R. (Ky.), 8. 1. If it is a domestic corporation, then it can exercise, not only all the franchises of its charter, but those granted by the general laws of Kentucky. 2. It has been held, however, that a corporation authorized by an act of the general assembly of the state it desires to enter, to construct a portion of its road through the state, is entitled to the same rights and privileges as domestic corporations. 33 Pa. St.. 175; 6 Watts & S. (Pa.), 101; 14 Pa. St., 65; 6 Whart. (Pa.), 45; 14 How. (U. S.), 80. But a foreign corporation cannot by comity exercise powers within the state which a domestic corporation would be pre- vented from exercising under the constitution of the state. 52 Am. & Eng. 11. R. Cases, 115; 50 Fed. Rep., 338. Nor would it be permitted to do those things prohibited by statute. It may be done, however, by express legal permit from the legislature. It has been held in Kentucky that "the right to hold, and the mode of acquiring title to, land depends upon the i< < ret xltnr; that, under the rules of comity, the presumption should be indulged that a corporation of one state, not forbidden by the law of its being, may exercise within any other state the general powers conferred by its charter, unless pro- hibited by direct enactment of the latter state or its public policy or settled adjudications." 1 R. (Ky.), 8. 858 LEASES, ETC. From the foregoing, it will clearly appear that the power of the Nashville, Chattanooga & St. Louis Railway proper to lease its road or to lease other roads in Kentucky, whether it be treated as a foreign or domestic corporation of Kentucky, must largely depend on the powers it possesses in Tennessee. As it has heretofore been shown that it possesses those powers in Tennessee, it follows 'that it possesses them there, in the absence of any legal legislation to the contrary, which does not now exist, except as to parallel or competing lines. Code Ky. 1894, p. 139, 201. 1. Lease of part of line. If the power to lease exists, the power to lease a part of the line instead of the whole also exists. Ill N. Y., 1, 64; 83 Iowa, 720; 50 Ind.. 85. See. also, 77 N. Y., 232; 45 Cal., 3G5; 37 Ga., 644. 2. Both roads must have power. In order to lease or sell a road, the lessor or vendor company must have power to lease or sell, and the les- see or vendee company must have power to accept the lease or to buy. 161 U. S., 686; 97 Ky., 675. 3. Lease must be registered in the secretary of state's office and in county clerk's office of every county in which said road, or any part thereof, lies. Code Ky. 1894. 791. Same. Power to lease its purchased roads in Kentucky. The Nashville, Chattanooga & St. Louis Railway has purchased the Nashville & Northwestern Railroad (see p. 76, herein), which had in turn purchased the Hickman & Obion Railroad (see p. 77, herein), both of which were domestic corporations of Kentucky. It also purchased all their powers, rights, and franchises. In ascertaining, therefore, the power of the Nash- ville, Chattanooga & St. Louis Railway to lease those roads to other companies, regard must also be had to the law of the or- ganization of said domestic companies as well as to the laws of Kentucky affecting them. In other words, as to the lines of those roads the Nashville, Chattanooga & St. Louis Railway would be vested with all the powers and privileges, and subject to all the duties and liabilities, of the respective original com- panies. If the companies originally had the power to lease or sell, then the Nashville, Chattanooga & St. Louis Railway, as the legal owner of all the rights, powers, privileges, and fran- chises thereof, would also have that power as to those particu- lar lines as fully and as completely as the original companies GENERAL TOWERS OF THE N., C. A ST. L. RY. had. Rtn/ers v. JV., 6". tfc /. Z. ./?//., decided November 9, 1898, by United States circuit court of appeals, sitting at Cin- cinnati, but which opinion has not yet been reported. See, also, 15 Lea (Tenn.), 37; 112 U. S , 610. The same would be true of any other railroad it ma}' purchase in Ken- tucky. Same. Power to sublease any road it may lease. The same would be true as to the lines of any roads the Nashville, Chattanooga & St. Louis Railway might lease in Kentucky if all their rights, powers, privileges, and franchises passed, in the absence of any clause in the lease prohibiting subleasing. Even should there be a clause, however, prohibiting subleasing, that would not prevent a mortgage or assignment of the entire leasehold interest, as that would be in no manner a violation of the covenant not to sublet. 27 Barb. (N. Y.), 415; 25 N. J. L. (1 Dutch), 291, 285; 33 N. J. L. (4 Vr.), 254; 47 Minn., 189; 15 L. R. A., 236; 16 Johns, 159; 1 Wood on Landlord & Tenant, sees. 258, 327; Taylor on Landlord & Tenant, sec. 16; 129 111., 318: 14 Lea (Tenn.), 92; 9 Lea, (Tenn.), 1. Foreign corporations, however, in Kentucky subject to laws relating to domestic corporations. "No corporation organized outside the limits of this state shall be allowed to transact business within the state on more favorable conditions than are prescril>ed by law to similar corporations organized under the laws of this commonwealth." Code Ky. 1894, p. 139; constitution, sec. 202. Lease or sale of franchise in Kentucky does not affect ex- isting liabilities. No corporation shall lease or alienate any franchise so as to relieve the franchise or property held there- under from the liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use or enjoy- ment of such franchise, or any of it privileges. Oxle Ky. 1894, p. 136; constitution of state, sec. 203. Foreign company in Kentucky denied right to hold real estate until it becomes a domestic corporation. No railroad corporation organized under the laws of any other state, or of the United States, and doing business, or proposing to do busi- 860 LEASES, ETC. ness, in this state, shall be entitled to the benefit of the ri^ht 77 ^ of eminent domain or have power to acquire the right of way or real estate for depot or other uses, until it shall have become a body-corporate pursuant to and in accordance with the laws of this commonwealth. Code Ky. 1894, p. 141; constitution of 'state, sec. 211. Foreign corporations must be incorporated in Kentucky. "No company, association, or corporation, created by or organized under the laws or authority of any state or country other than this state, shall possess, control, maintain, or operate any railway, or part thereof, in this state until, by in- corporation under the laws of this state, the same shall have become a corporation, citizen, and resident of this state. Any such company, association, or corporation may, for the purpose of possessing, controlling, maintaining or operating a railway, or part thereof, in this state, become a corporation, citizen and resident of this state by being incorporated in the manner fol- lowing, namely: By filing in the office of the secretary of state, and in the office of the railroad commission, a copy of the charter or articles of incorporation of such company, associa- tion or corporation, authenticated by its seal and by the attesta- tion of its president and secretary, and thereupon, and by virtue thereof, such company, association, or corporation shall at once become and be a corporation, citizen and resident of this state. The secretary of state shall issue to such corpora- tion a certificate of such incorporation." Code (Ky.), 1894, 841. 1. See notes to second section below. 2. Section 842 of Code of Kentucky, 1894, provides a penalty for vio- lation of above section of not less than SI, 000 for each day or part there- of so violated. Foreign companies must accept constitution of Kentucky ; When. " No railroad corporation organized or created by or under the laws of any other state shall have the right to con- demn land for, or acquire the right of way for, or purchase or hold land for its depots, tracks, or other purposes, until it shall have first tiled in the office of the secretary of state of t.KNERAL 10 \VKKS OF THE N., C. A ST. L. BY. thi> >tato, in the manner provided in the first* article of this chapter, its acceptance of the constitution of this state, and shall have become organized as a corporation under the laws of this state, which it may do by tiling in the offices of the secre- tary of state and the railroad commission articles of incorjx)- ration, in the manner and form provided in section 763 of this article (acceptance of constitution, see 570 of this code). Code (Ky.), 1894, 765. See notes to section below. Same. " No law shall be passed for the benefit of, or in the interest of, any corporation heretofore created or organized by or under the laws of this state or any other state, nor shall any corporation avail itself of the provisions of this chapter, unless such corporation shall have previously, by a resolution adopted by its board of directors and filed in the office of the secretary of this state, accepted the provisions of the constitution of this state, and such resolution, or a certified copy thereof, shall be evidence for and against such corporation." Code Ky. 1894, 570. Above sections complied with in leasing Paducah, Tennessee & Alabama Railroad. After the lease of the Paducah, Tennessee &. Ala- bama Railroad (see p. 487 herein) by the Nashville, Chattanooga A St. Louis Railway, the secretary of state of Kentucky held that, under sec. 190 of the constitution of the state, and under \\ 570, 765, and 841 of the code of Kentucky above set out, the said road could not be legally operated until all of said sections were strictly complied with. In this he was clearly wrong, as only 841. above set out, is necessary to be complied with. However, to avoid trouble, the board of directors of the Nashville, Chattanooga & St. Louis Railway, on January 21, 1899, accepted the constitution of Kentucky, and filed a copy of the same, with its charter properly authenticated and attested, with the secretary of state, and Railroad Commissioners, on February 25, 1899. The char- ter, properly authenticated and attested, had been offered for filing several months previously, but was refused by the secretary of state upon the ground that the directors of the railroad had not accepted the constitution of Kentucky. 862 MORTGAGES. CHAPTER LXXL MORTGAGES WHAT MAY BE MORTGAGED VOTE NECESSARY- POWER TO, GENERALLY. [For rights of, and what passes to, purchaser under foreclosure of, see "Sales;" "Purchase."] [in Tennessee.] Right of railways to mortgage their property, generally. A very clear line of distinction is drawn between strictly private corporations and those devoted to the discharge of public duties, in so far as their right to mortgage their property is concerned. The American doctrine recog- nizes the implied power in private corporations to borrow money for its corporate purposes, to issue evidences of debt therefor, and, by necessary implication, to mortgage its prop- erty to secure said debts. Not so, however, with railways. They have ordinarily no power to mortgage, lease, or otherwise alien their property and franchises, such as are necessary to the performance of those duties, without express legislative author- ity. Many authorities go to the extent of holding that this rule applies to all corporations devoted to the discharge of public duties. The Tennessee courts do not go so far, as they have held that a gaslight company could mortgage its property without express legislative authority. 11 Pick., 142. The rule is held, however, to apply to railways. Thompson on Corp., sec. 6137; 88 Tenn., 138, 152; 40 Am. & Eng. R. R. Cases, 358; 101 U. S., 71; 34 Vt., 484; 36 Vt., 452; 10 Allen (Mass.), 448, s.c. -- Am. Dec., 672; 11 Allen (Mass.), 65; 87 Am. Dec., 700; Jones on Corp. Bonds & Mortgages, sec. 3; 65 N. Y., 43, 50; 32 N. H., 484; 15 Ohio St., 21; 40 Mo., 140; 27 Miss., 517; Elliott on Railroads, sec. 488; 118 Mass., 543; 61 111., 422; 152 U. S., 191. See also 6 Heis. (Tenn.), 421. It has been held, however, that this rule does not apply to property not necessary to enable the corporation to perform its GENERAL POWERS OF THE N., C. A ST. L. RY. duties to the public. 99 U. S., 48, 57; 22 Wall., 527; Elliott on Kail roads, sec. 488. We will now examine the charter, amendments thereto, and the general law of Tennessee, to see what authority the Nash- ville, Chattanooga & St. Louis Railway has to mortgage its property in Tennessee. What power exists in the charter of the Nashville, Chat- tanooga & St. Louis Railway tO mortgage. There is no direct power given in the charter, or amendments thereto, authorizing the execution of a mortgage. The only clause that could, in any way, be construed into such authority is in section 1 of the charter, which, among other things, provides: "The Nashville & Chattanooga Railroad Company shall be capable in law to buy, receive by gift, hold, sell, and convey real and personal estate," etc. In many of the states this power to sell and convey by im- plication gives the power to mortgage. Jones on Corp., Bonds and Mortgages, sec. 7, 119 U. S., 191. But this has been held only to apply to the property as distinguished from the franchises of the company. Id. 3 Woods, 481; 2 Kelly (Ga.), 383. The word "convey" in the above section of the charter evidently contemplates a different disposition from the word "sale," which, by inference, might mean mortgage. Thus, in a similar case, it was held that, where the charter of a rail- way authorized it to " dispose of" its lands, etc., it might mortgage them. ( J9 U. S., 48. What power exists under the general law. Whatever may be the construction placed upon the charter provision above re- ferred to, when tested, there can be no doubt but that under the general law the railway now has the right to mortgage its property. The following acts of the state of Tennessee relating to mortgages, are set out in the order of their passage: 1. May mortgage their property; when; not to interfere with State's Hen. Any railroad company in this state may issue bonds in such amounts, and bearing such rate of interest, 864 MORTGAGES. not exceeding the legal rate of interest at the place where pay- able, as may be determined on by the stockholders represent- ing a majority of all the stock in the company, and may secure the payment of such bonds principal, and interest by mort- gage of the franchises, roadbed, superstructures, equipments, and property of every description of such railroad company. The mortgage above authorized shall not interfere with prior liens, especially the liens of the state in the existing mortgages in favor of the state. Acts Ten n., 1870-71, ch. 116, sec. 1; code Tenn. [Shannon's], 1541; [M. & V.], 1276. 2. Further on the Subject. Every railroad corporation in this state, whether created under a general or special law, "shall have the power to borrow money and to issue its bonds therefor, or for any other indebtedness or liability which it may incur or may have incurred, in the exercise of its lawful purposes, and to secure the pa} r ment of such bonds, with the interest thereon, by a mortgage of the whole or any part of its railroad and equipments and other property and franchises, containing such provisions as its directors shall approve. Acts Tenn. 1871, ch. 69; code Tenn. [Shannon's], 1510; (M. & V.), 1251. 3. Further on the Same Subject. Railroad companies existing under the laws of this state, or of this state and any other state or states, whose original charter of incorporation was granted by this state, are empowered to issue bonds, and secure the payment thereof by mortgage upon their franchises and property in any state or states, or upon any part of such franchises and property, or to issue income or debenture bonds, and such guaranteed, preferred, and common stock as may be determined upon by the stockholders; Provided, The same be approved by the votes of the holders of three-fourths in amount of the entire stock of said company, at a regular or called meeting of the stockholders of said company, and that sixty days' notice be given in a Memphis, Knoxville, and Nash- ville daily newspaper of the time, place, and purpose of the meeting. Acts Tenn., 1881, ch. 9, sec. 1; Code Tenn. [Shan- non], 1542; [M. & V.], 1277. GENERAL POWERS OF THE X., C. 4 ST. L. RV. 865 The supreme court of Tennessee has decided that this act does not . 1 the special limitations imposed by the Acts of Tenn.. 1H77. ch. 72, upon tli.- power of consolidated railway companies to make mortgages Of tlieir pniperly. 4 Pick. (Tenn.). 140. 4. The next act relating to corporate mortgages was p:i ed by the legislature of 18*.">, p. 103, but the act itself specifically provided that it should not apply to railroads, and hence it is omitted here. Mortgage not to affect certain judgments, etc., when. No railroad company shall have power to give or create any mortgage or other kind of lien on its railway projMjrty in this state, which shall be valid and binding against judgments and decrees, and executions therefrom for timbers furnished and work and labor done on, or for damages done to |xrsons and property in the operation of its railroad in this state. Acts Tenn., ls77, ch. 72, sec. 3: ch. 12, sec. 3; code Tenn. ^Shan- non's), 1530; (M. & V.), 1271. This section is constitutional, and is not repealed by acts Tenn., 1881, ch. 9. sec. 1, as codified in the code (Shannon's) as ? 1542. and which sec- tion has heretofore been set out. 4 Pick.. 150-163, 107. This lien continues after damage to person agreed upon. 4 Pick. (Tenn.), 146-14'.. It protects creditors for personal injuries without judgment when. 4 Pick. (Tenn.), 144, 145. Who to authorize, directors or stockholders, in Tennessee, and VOte necessary. It is a general principle of law that the directors of a corporation, in the absence of any legislative restriction, are the ones to authorize a mortgage, and not the stockholders. 93 111., 153; 30 Vt., 149: 14 Allen, 381; 13 Pick., 21)1; 7 Fed. Rep., 793; 68 Ala., 229; 65 Pa. St., 290; 35 Mo., 13; 68 Miss., 423; Elliott on Railroads, sec. 491. In Tennessee, under the acts of 1870-71, ch. 116, hereto- fore set out, it was provided that the mortgage should be ap- proved by a majority of all the stockholders in the company. The acts of Tenn., 1871, ch. 69, does not refer to stockhold- ers, but leaves the matter to the directors. The acts of Tenn., 1881, ch. 9, require that the same be approved by the votes of the holders of three-fourths in amount 55 866 MORTGAGES. of the entire stock of said company, at a regular or called meeting of stockholders, and that sixty days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper, of the time, place, and purpose of the meeting. This latter act should be followed, though it is open to many objections from a constitutional standpoint on account of its caption. This is advised, as, by so doing, the other acts will also be complied with. The acts of 1881, ch. 9, however, were incidentally passed upon in 4 Pick. (Tenn.), 140, and no notice taken of irregularities in caption. After acquired property may be mortgaged. Though no statute law authorizes the mortgage of after acquired prop- erty in Tennessee, yet it is well recognized that a power to mortgage property generally, in the absence of restraining statutes, of itself confers the power upon a railway company to mortgage property to be by it thereafter acquired, and such a mortgage will cover property of which the company acquires either the legal or equitable title. 138 U. S., 414; Thompson on Corp., sec. 6141; 1 Wall. (U. S.), 254; 58 Ala., 489; 72 Me., 83; 46 Conn., 156; 146 U. S., 536; 15 Ohio St., 523; Elliott on Railroads, sec. 497; 104 U. S., 25; 64 Ala., 122, 603; Shannon's Tenn. Cases, p. 774; 94 Ga., 306; Cook on Corp. (4th ed.), sec. 857; 132 U. S., 68; 164 U. S., 1, 15; 95 U. S., 11; 94 N. Y., 160; 64 Pa. St., 366; 36 Fed. Rep., 288; 147 U. S., 431; 138 U. S., 414; 65 N. Y., 43, 51. In Tennessee it has been held that such a mortgage was valid, and that the trustee would in equity have a lien upon the after-acquired property, if it should come into his hands, subject to the liens that may have fastened upon the property before it came into his possession as, for instance, where the property had been attached before it reached the mortgagee or trustee. 6 Heis. (Tenn.), 421. See, also, 7 Bax., 98; 23 111., 324. Future earnings may be mortgaged. For the same reason a railway having the general power to mortgage may pledge or mortgage its future net earnings, to raise money for equipping or constructing its road or other property. 26 111., 121; 123 GENERAL POWEK8 OF THE N., C. A ST. L. RY. 867 U. S., 687; 11 Iowa, 572; 79 Am. Dec., 513; Thompson on Corp., sec. 6148; 91 U. S., 603; 81 111., 534; 124 Mass., 154; 51 Me., 341; Elliott on Railroads, sec. 495; Shannon's Tenn. Cases, p. 774. By acts of Tenn. 1881, ch. 9, sec. 1, all railway companies existing under the laws of this state, or of this state and any other state or states, whose original charter of incorporation was granted by this state, were empowered to issue income or debenture bonds. In Tennessee it has been held that, where the net earnings of a railroad are mortgaged, the lien of the mortgage does not attach until the net earnings are ascertained and set apart to the mortgagee, and, until this is done, the gross earnings are liable to be attached by the creditors of the railroad company. 6 Heis. (Tenn.), 421. May mortgage leased roads. Where the power to mortgage exists the entire leasehold interest in any road may be mort- gaged. This would be so even though there oe a clause in the lease prohibiting subleasing. Such a clause would not prevent a mortgage or assignment of the entire leasehold in- terest, as it has uniformly been held that this is in no man- ner a violation of a covenant not to sublet. 27 Barb. (N. Y.). 415; 25 N. J. L. (1 Dutch.), 291, 285; 33 N. J. L. (4 Vr.), 254; 47 Minn., 189; 15 L. R. A., 236; 16 Johns., 159; 1 Wood on Land, and Tenant, sec. 258, 327; Taylor on Land, and Tenant, sec. 16; 129 111., 318; 14 Lea (Tenn.), 92; 9 Lea (Tenn.), 1. May mortgage personal property and rolling stock. Cook on Corp. (4 ed. ), sees. 852, 854. May mortgage a part Of its road. It is generally conceded that if a railroad company has power to mortgage its road it has power to mortgage a part of it. 20 Fed. Cas., 32; 85 Pa. St., 501. In the latter case it was also held that where a rail- road company mortgages such part of its road as is completed, and the mortgage is foreclosed, the purchasers arc not bound to go on and complete the road. See also Cook on Corp. (4 ed.), sec. 786; Elliott on R. R., sec. 489. 868 MORTGAGES. ALABAMA ACTS AS TO MORTGAGING. [In Alabama.] Power of the Nashville, Chattanooga & St. Louis Railway to mortgage its road in Alabama. in discussing this it is necessary to bear in mind that as to its main line the Nashville, Chattanooga & St. Louis Railway is a foreign corpo- ration in Alabama, though as to the lines of those Alabama rail- roads it has purchased it is a domestic corporation there. A corporation is not incorporated in a foreign state simply by the purchase or lease of a domestic railroad of that state. Elliott on Railroads, sec. 26; 1 Hilton (N. Y.), 62; 30 N. J. L., 473; 31 N. J. L., 531; 32 Ohio St., 468; 50 Pa. St., 26. See, how- ever, 85 Tenn., 189: But it would be domesticated as to the lines of roads so purchased, and, hence, no suit growing out of the operation of a road so purchased could be removed to the federal court on the ground of "nonresidents." 108 U. S., 436; 14 Minn., 303: 43 Mich., 354; 1 Wall., 40; 12 Wall., 65, 82. See, 'also, 90 Ga., 523; 76 Ga., 99; 9 Am. & Eng. R. R. Cases, 201; 53 Ala., 237; 21 Law Rep., 138; 3 Tenn. Ch., 602; 59 Ga., 263; 2 Woods, 409; 30 Fed. Cases, 73. A railroad chartered by two states is a citizen of each. 118 U. S., 161; 7(5 Ala . 388. It is true the state of Alabama authorized the Nashville, Chattanooga & St. Louis Railway to build its main line in that state, and conferred upon it "all the rights, privileges, immuni- ties,'' etc., of its Tennessee charter. (See p. 55, et seq, herein.) But this did not domesticate the main line of the Nashville, Chattanooga & St. Louis Railway in Alabama, nor did its sub- sequent purchase of the Tennessee & Coosa Railroad, the Mid- dle Tennessee & Alabama Railroad, or the Huntsville & Elora Railroad. 32 Fed. Rep., 849; 21 Fed. Rep., 817; 20 Am. & Enr. R- R. Cases, 597; 22 Fed. Rep., 353; 46 Mich., 224; 76 Ala., 3*8; 13 Am. & Eng. R. R. Cases, 296; 23 Am. & Eng. R. R. Cases, 487; 49 N. J. L., 193; 129 Pa. St., 463; 18 Alt. Rep., 412. See, also, 118 U. S., 290; 104 U. S., 5. Same. Power as to its main line to mortgage. The Nash- ville Chattanooga & St. Louis Railway proper being a foreign GENERAL POWERS OF THE N., C. A ST. L. RY. B68 corporation in Alabama, as heretofore explained, reference iiui-4 be had to the law of its organization, as well as to the general powers conferred uj)on it in the state of its creation in dotermining its power to lease in Alabama. Corporations go- ing beyond the jurisdiction that created them can generally do only those things which by express grant or necessary implica- tion they are authorized or empowered to do by the laws of the state granting their charters. 30 Am. ;i-M'd. Kven where there is a clause prohibiting subleasing (as was done in the lease to the Western & Atlantic Railroad), a mortgage or assignment of the entire leasehold interest is in no manner a violation of a covenant not to sublet. 27 Barb. (N. Y.), 415; 25 X. J. L. (1 Dutch), 291, 285; 33 N. J. D. (4 Vr.), 254; 47 Minn., 189; 15 L. R. A., 236; W Johns, 159; 1 Wood on Landlord & Tenant, sees. 258, 327; Taylor on Landlord & Tenant, sec. 16; 129 111., 318; U.Lea (Tenn.), 92; 9 Lea (Tenn.), 1. Railroads chartered under general laws of Georgia ; may mortgage; hOW. Said railroad companies shall be empowered " to lx)rrow such sum or sums of money, at such rates of in- terest and upon such terms as such company, or its board of directors, shall deem necessary or expedient, and may execute one or more trust deeds or mortgages, or both, if the occasion may require, on said railroad in progress of construction, or after the same has been constructed, for the amounts l>orrowed, or owing by such company. Said company may make such provisions in such trust deed or mortgage for transferring said railroad track, depots, grounds, rights, privileges, franchises, immunities, machine-houses, rolling-stock, furniture, tools, implements, appendages and appurtenances used in connection with said railroad, in anv manner then belonging to said com- V pany, or which shall thereafter belong to it, as security for any bonds, debts or sums of money secured by such trust, deeds or mortgages, as they shall think proper; and all such deeds of trust and mortgages shall l>e recorded, as is provided by law for the record of mortgages in this state, in each county through which said road runs, but all rights to liorrow money, 874 MORTGAGES. issue bonds, or other evidences of debt, and to execute trust, deeds or mortgages to secure the same, shall be exercised within the limitations and in the manner which shall be pre- scribed by the law of this state. Code Ga., 1895; 2167 (10). 1. See discussion of subject generally under Tennessee law in first part of this chapter. 2. After acquired property may be mortgaged. 94 Ga., 306; 96 Ga., 580; 42 Ga., 133. 3. Authority to execute mortgage. Must be conferred by act of di- rectors where organic statute requires it. 91 Ga., 624. 4. Foreign mortgage. On lands in Georgia is security only. 36 Ga., 138. 5. If valid where executed, valid everywhere. 76 Ga., 178. 6. Future acquired property. May be mortgaged by railroads. 94 Ga., 319. KENTUCKY ACTS AS TO MORTGAGING. [In Kentucky]. Power of Nashville, Chattanooga & St. Louis Railway to mortgage its purchased and leased roads in Kentucky. The power of the Nashville, Chattanooga & St. Louis Railway to mortgage its purchased and leased roads in Kentucky depends upon substantially the same principles as its power to lease them. As this latter subject has been gone into fully in the preceding chapter on leases, p. 856, herein, it will not again be discussed, but reference is made thereto. As the Nashville, Chattanooga & St. Louis Railway possesses the power to mortgage in Tennessee, it would possess it in Kentucky, in the absence of any legislation to the contrary, which does not now exist. Thompson, in his work on corporations, in speaking of the power of foreign corporations to mortgage their roads, says: "The jus disponendi being a universal incident of the beneficial ownership of property, whenever the power of a foreign cor- poration to acquire land is conceded, the power to dispose of it must also follow, and that foreign corporations have the same power to mortgage, or otherwise incumber their property that domestic corporations or natural persons would have, 101 111., 206; though the legislature of the state in which the lands are situated may, and sometimes does, restrain the exercise of the GENERAL POWERS OF THE N., C. A ST. L. RV. 875 power, whenever to follow its exercise will prejudice the rights of its own citizens as creditors of the corporation. But in re- spect of the mode in which the conveyance is made, the local law governs; though the question whether the directors have received power from the stockholders to authorize the mortgage must be determined by reference to the charter, governing stat- ute, or by-laws of the corporation. For instance, it has leen held in Massachusetts that a statute of that state, providing that a corporation shall not convey or mortgage its real estate, or give a lease therefor for more than a year, unless authorized by a vote of the stockholders at a meeting called for the purj)ose, does not apply to foreign corporations, nor invalidate a mort- gage made by a New Hampshire corporation of its lands situated in Massachusetts, where there has been no such vote of the stockholders." 147 Mass., 224; 17 N. E. Rep., 316; Thomp- son on Corp., 7923. Mortgages in Kentucky not opposed to public policy. A mortgage by a railroad company to secure money borrowed for the construction of its road is not opposed to the public policy of the state. This is indicated by the general course of legis- lation upon the subject. 4 Mete. (Ky.), 199; see also 95 Ky., 289; 15 R. (Ky.), 785. Power to mortgage gives power to mortgage a part instead of the whole of a railroad. 85 Pa. St., 501-6; 10 Allen (Mass.), 459; Elliott on R. R., $ 489. Railroads chartered under general acts of Kentucky may mortgage their roads ; hOW. Corporations organized under this law sha'.l have power to borrow such sums of money as may be necessary for funding their floating debt or for com- pleting, equipping, or operating their road, or any part thereof, or for paying any debts incurred for such purposes, and to issue and dispose of their bonds or obligations for any amounts necessarily borrowed for such purpose, and to mortgage their corporate property and franchises, or any part thereof, to secure the payment of any debt contracted, or to defray any expenditure for the purposes aforesaid, and may confer on any holder of such bonds or obligations the right to convert the 876 PKESIDENT, HOW CHOSEN, ETC. same into the stock of such company; and may, in the manner provided in article I. of this chapter, increase or decrease its capital stock, and the increased stock may be "common" or " preferred," as shall be designated in the call for the meeting of the stockholders. If preferred stock be issued, the company may guarantee to tae holders thereof semi-annual or quarterly dividends to an i no ant not exceeding six per cent, per annum, payable at its office or at such other places as the directors may designate. The stock may be sold at such time and place, either within or without the state, as may be deemed advisable, and the proceeds thereof applied for the purposes for which it was issued. Tiie un preferred stock of the company shall be entitled to dividends only out of the surplus of the profits, after setting apart a sum sufficient to pay the dividends upon the preferred stock; and the company which issues such pre- ferred stock shall reserve the privilege of redeeming and can- celing the same at par at any time after three years from the date of its issue, and the preferred stock herein provided for may be convertible into bonds of the company at the option of the parties. Code Ky. 1894, 771. CHAPTER LXXII. PRESIDENT HOW CHOSEN, QUALIFICATIONS, POWERS, ETC. HOW president ChOSen. The president of this company shall be elected by the directors from among their own members in such manner as the regulations of the corporation shall pre- scribe. Charter, sec. 8, p. 6 herein. The by-laws pr vi le that the board of directors shall elect a president from firir Uoar.1 I '.- p. 646 herein), the election to be by ballot unles by UTiiiiiimoii.s < M <-., (see p. 647 herein). Qualifications. No person but a citizen of the United States, and being a bonafide stockholder in his own right of at least forty shares, which he shall have held at least three months previous to his election (except at the first election), (.KNKKAI. POWERS OF THE N., C. A ST. L. RV. 877 shall be president or a director of the company; nor shall anv stockholder vote in person or l>y proxy at any general or other election (except the first) who shall not have held in his own right the shares on which he offers to vote at least three months previous to such election. Charter, sec. I 4 .', p. I '2 herein. Pro tempore president. -The Ixmrd of directors may fill up all v icancies which may occur in it during the period for which their board shall have been elected, and, in the absence of the prc-ident, may fill his place by electing a president pro //-//*//r. Charter, sec. 10, p. S herein. The by-laws of the company provide likewise. See pp. rtlO. 017 herein. Powers Of president. Generally speaking it is impossible to formulate any definite legal rules within which to prescriln? the powers of a railway president. From the nature of the busi- ness to be transacted, requiring as it does constant attention, and which of necessity must be done promptly and effectively without calling together the board of directors, a liency is manifested by the courts to recogni/e implied powers, which do not exist in presidents of other corporations, such as manu- facturing, mining, educational, etc. General!}' speaking, it may be said that a railway president may act for the company in all ordinary routine business, unless his powers are circumscribed and limited by the act of incorporation or the corporate by-laws. Klliott on Railroads, sec. 283. The by-laws provide that he shall have general supervision and direction of all departments of the company 's service. See p. 64'J herein. Of course the board of directors may materially extend the general powers of the president and invest him with authority much beyond that inherent in his office; and, again, his |K>wers may l>e extended by corporate usage or custom, the discussion of which would require too much time for the space here allotted. The by-laws set out certain jxwers of the president, general manager, etc., but by usage and custom these may be materially enlarged. 878 PURCHASE, ETC. Same. May call meeting of directors, when. Under the by-laws of the company the president may call special meetings of the directors and committees at such times as he may deem proper. See p. 649 herein. CHAPTER LXXIII. PURCHASE POWER TO PURCHASE OTHER ROADS, REAL ESTATE, ROLLING STOCK, BRIDGES, ETC. [in Tennessee.] Right to purchase real and personal estate. Under its charter of the Nashville, Chattanooga & St. Louis Railway, the company has the right to buy, receive by gift, hold, sell, and convey real and personal estate as thereinafter provided. Charter, sec. 1, p. 1 herein. Right to purchase lands, etc., for depositories, storehouses, Workshops, materials, etC. Under its charter the company may purchase, have and hold in fee, or for a term of years, any lands, tenements, hereditaments which may be necessary for said road, or appurtenances thereof, or for the erection of depositories, storehouses, houses for the officers, servants, or agents for the company, or for workshops or foundries to be used for said company, or for procuring timber, stones, or other materials necessary for the construction of the road or its appurtenances, or for effecting transportation thereon. Char- ter, sec. 21, p. 13, herein. The supreme court has held, in construing 1 this section of the charter, in conjunction with the sections on eminent domain, that for the pur- poses enumerated in the above section the railway company could not condemn the land necessary, but must rely on negotiation with the owners thereof, as allowed in said section. 11 Hum. (Tenn.), 348. Right to purchase bridges and turnpikes. Under its char- ter the company may also purchase, have and hold any bridge or turnpike road over which it may be necessary to carry the said railroad; and when such purchase is made, to hold the said bridge or turnpike road on the same terms and with all GENERAL POWERS OF THE N., C. A ST. L. RY. the rights which belong to the individual, individuals, or cor- poration from which such purchase may be made; Provided, That the said company shall not obstruct any public road with- out constructing another as convenient as may be. Charter, w sec. 23, p. 14, herein. See notes under sec. 33 of the charter. Right to purchase other railways. it is a well established principle of law that, in order to render the sale of a railway to another valid, the purchasing road must have the power to buy conferred either in its charter, amendments thereto, or by the general law, and the vendor road must have equal author- ity to sell. 161 U. S., 677-691; 145 U. S., 393-404; 101 U. S., 71; 130 U. S., 1; 139 U. S., 24; 160 U. S., 514; 163 U. S., 564. Whether the sections of the charter of the Nashville, Chat- tanooga & St. Louis Railway, above set out,- confers upon it the power to purchase other roads is very questionable, yet, as a practical question, it is of little moment, as the general law supplies all deficiencies in this regard. Under it full power is conferred, as below set out. 1. May purchase, by statute, railroads, franchises, etc. Every railroad corporation in this state, whether created under a general or special law, shall have the power to acquire, by purchase or other lawful contract, and have, hold, use, and op- erate any railroad, with its franchises, belonging to any other railroad corporation; and likewise to have, hold, use, and op- erate any such railroad, with its franchises, which it may have heretofore purchased or acquired. Acts Tenn., 1871, ch. 69, sec. 1; code Tenn. (Shannon's), 1509; (M. & V.), 1250. This supersedes the act of Tenn., 1871, ch. 22, which act, however, should be examined, as a part of it may still be in force. 2. May purchase privately or under judicial proceedings. Any railroad corporation which has l>een created, or whose corporate existence has Iwen recognized by any act of the legis- lature of this state, is hereby authorized and empowered to become purchaser of any railroad sold in this or any adjoining 880 PURCHASE, ETC. state under any judicial proceeding in such state, or sold by any person or persons, natuval or corporate, who may have purchased or derived title under or from any such judicial sale. Acts Tenn. 1877, ch. 20; code (Shannon's), 1511; (M. & V.), 1252. 3. Purchase carries franchises. All the rights, privileges, and immunities appertaining to the franchises sold under the judicial proceedings instituted against delinquent railroads by the state under the act of incorporation, and the amendments thereto, and the general internal improvement law of the state and acts amendatory thereof, shall be transferred to, and vest in, the purchaser, who shall hold the same subject to all the liens and liabilities in favor of the state as now provided by law against the railroad companies. Acts Tenn. 1870-71, ch. 23, 10; code Tenn, (Shannon's), 1512; (M. & V.), 1253. -t. Purchaser under foreclosure proceedings; rights of .The purchasers of any railroad chartered by this state, and lying in whole or in part in this state, sold under any mortgage heretofore or hereafter executed by it, when put in possession of said railroad by any court of competent jurisdiction, shall have the same right to operate the same in this state as the incorporated company which executed the mortgage. Acts Tenn. 1877, ch. 12, sec. 1; code Tenn. (Shannon's), 1513; (M. & V. ), g 1254. 5. Purchaser under foreclosure proceedings to enforce State's lien; rights Of. Sale of delinquent railroads by state to enforce its lien transfers road, appurtenances, and fran- chises to purchaser, and, unless the company was purchaser, to dissolve corporation. 9 Lea (Tenn.). 691; see also 12 Lea (Tenn. ;, 583, for exemption of purchaser from taxation. 6. May purchase, build, lease, or sell railroad, or any part thereof, in any State. All railroad companies of this state, and any other state or states, are authorized and empowered to build, lease or let, acquire by purchase, lease or otherwise, and operate, hold or dispose of any railroad or railroads in any state or states, or any parts or portions of any such railroad or railroads, and the distribution thereof, as may be determined GENERAL TOWERS OF THE N. , C. A ST. L. RV. - - 1 upon by their stockholders, and to acquire by purchase or otherwise, and hold or dispose of any bonds or shares of the capital stock of any railroad company or companies in any .state or stales, and to indorse and guarantee the Inmds of any railroad company or companies in any state or states, whose original charter of incorporation was granted by the state of Tennessee; Pwided, That the same be ap- proved by the vote of three-fourths in amount of the capital stock of said company present and voting, either in person or by written proxy, at a regular or called meeting of the stock- holders of said company; And, provided further, That sixty days' notice l>e given in a Memphis, Knoxville, and Nashville daily newspaper of the time, place, and purpose of the meet- ing. Acts Tenn. 1881, ch. 9, sec. 2; 1891, ch. (51; code Tenn. (S.), 15-K>; (M. & V.), 1275. The supreme court of Tennessee has decided that the above act of Tenn. 1881, ch. 9, did not repeal the special limitations imposed by acts of 1877, ch. 72, as to mortgages by consolidated companies. 4 Pick.. 140. 7. May purchase branches and extensions. Any and all ra il road companies now or hereafter existing under the laws of this state, or of this state and any other state or states, whose charter of incorporation was or may be granted by this state, are hereby authorized and empowered to acquire the line or lines of any other railroad company, either in this state or any other state or states, which may connect with and form parts and parcels, or branches or extensions of the line of such com- pany chartered by this state, or by this state and any other state or states; and are authorized and empowered to so ac- quire such branches or extensions by purchase, lease, or other- wise, and pay for the same by the issue of their own capital and bonds, or by guaranteeing those issued by the company whose line may be so acquired, purchased or leased; but nothing in this section shall be construed so as to authorize the acquisi- tion in any way by any corporation or company of parallel or competing lines. Acts Tenn., 1891, ch. 125; Code (Shannon), 1521. 56 882 PURCHASE, ETC. s. Purchasers of railway at judicial sale may organize into corporate company and operate road, with franchises, rights, powers, etc., contained in charter of original com- pany. Whenever the property and franchises of any railroad have been sold, or may hereafter be sold, under any judgment, decree, or process from any of the courts of record of this state for the payment of any debt due from said incorporated company, the purchasers at said sale, or their assignees, may organize into a corporate company or body, with the right to have, hold, and operate the property and franchises so pur- chased, with all the powers, rights, privileges, and immunities, and subject to all the restrictions imposed by the original char- ter and amendments thereto, of the corporation whose property and franchises have been sold. Acts Tenn. 1879, ch. 52, sec. 2; code Tenn. (Shannon's), 1513a; (M. & V.), 1255. Purchasers, under foreclosure sale, of part of road cannot be re- quired to build entire line. It has been held that, where a railroad company mortgages such a part of its road as is completed, and the mort- gage is foreclosed, the purchasers are aot required to complete the entire road. 85 Pa. St., 501; Cook on Corp. (4th ed.), sec. 786. 9. Purchaser at foreclosure sale of railway lying wholly or partly in state becomes vested with franchises, powers, etc., contained in act of incorporation and amendments thereto. When a mortgage, executed as provided or allowed by law (acts of Tenn. 1870-71, ch. 116, or other law), upon the franchises, roadbeds, superstructures, and property of every description of an incorporated railroad lying within the state, either in whole or in part, shall be foreclosed in any court of this or of the United States having jurisdiction thereof, by sale under said mortgage, the purchasers at said sale shall be entitled to and be invested with the said franchises and property, and with all the rights, privileges, and immunities appertaining thereto by the laws of this state, in the act of incorporation of said company and the amendments thereto, and the general internal improvement law, or other laws of this state, irt as full a manner as the said company or compa- nies are or were. Acts Tenn. 1877, ch. 12, sec. 2; code Tenu. (Shannon), 1511; (M. & V.), 1256. (IKNKKAI. I'MUKUa OF THE X. , C. A ST. L. RY. 883 i". Purchasers may organize new company. The pur- ch:i>rrs nt the snle mentioned in the preceding section may, after being put in possession of said property, meet together, adopt a name for the company or corjMmition to operate said railroad, and elect a hoard of directors of not less than three, at least one of whom shall reside in this state. (/ers of such board, and to be filed with the secretary of state of this state, ami thereupon the said purchasers shall IK; a Ixxly corporate, under the name so adopted, with all the rights, powers, privileges, immunities, and franchises possessed, under the laws of this state, by the 884 PURCHASE, ETC. company or companies whose road and franchises were sold, as aforesaid, under the acts of incorporation thereof, or any amendments thereto, and any subsequent act or acts of this state; and with all the rights, powers, privileges, and fran- chises possessed by the corporation formed and organized for the building of railroads under the code of this state. (Ib.) Code Tenn"(S.), 1518; (M. & V.), 1260. 14. Shares, bonds, etc., to be issued by directors. The board of directors shall issue to the parties interested in the purchase of said railroads shares of the capital stock thereof, of 100 each, to such amount as they shall determine, in proportion to their rights and interests in the property, which shares shall be fully paid, and not liable to calls; and also such bonds and obligations as they may determine. (/) Code Tenn. (S.), 1519; (M. & V.), 1261. It is expressly provided that no exemption from taxation, which was granted by the original charters, shall pass to the purchasers at mort- gage or judicial sales. Acts Tenn., 1877, ch. 12, sec. 2; ch. 72, sec. 3. The last five sections are from ch. 12 of the acts of 1877, and relate ex- clusively to purchasers at sales to foreclose mortgages as provided in sec. 1140 of T. & S's. revised statutes. Purchaser gets property free of vendor's debts, when. Where one corporation purchases, under legislative authority, the property and franchises of another, it holds the property free from the claims of creditors that were not liens, as if it had been an individual transaction. The statute of most states, however, makes certain claims liens. See 94 Ky. , 377. Who to authorize stockholders or directors, and vote necessary. The acts of Tenn. 1881, ch. 9, as amended by act 1891, ch. 61, is doubtless the controlling act on this sub- ject, and should be followed. See case of Rogers v. Nashville, Chattanooga & 8t, Louis Railway, decided November 9, 1898, by United States circuit court of appeals, sitting at Cincinnati, but not yet reported. Under it the proposition to purchase must be approved by three-fourths in amount of the capital stock of said company present and voting, either in person or by written proxy, at a regular or called meeting of the stock- holders, and that sixty days' notice be given in a Memphis, GENERAL POWERS OF THE N., C. A ST. L. RY. 885 Knoxville, and Nashville daily newspaper, of the time, place, and purpose of the meeting. Under the ordinary powers granted a railroad having' its termini in this state, the directors have no power to purchase other railroads with- out the sanction of the stockholders. 8 Bax. (Tenn.), 108. Duty of purchasing road to complete and operate entire line of road so purchased considered. it frequently happens that one railway company will purchase the pro|>erty, fran- chises, etc., of an incompleted road. The question then arises whether or not the purchasing road can he compelled to com- plete and operate the road so purchased as an entire line between the termini mentioned in its original charter. This is a very serious question, and is one that has received no partic- ular judicial notice in this state. For a discussion of the sub- ject, however, we will divide the purchased roads into two classes. First, those that are chartered under a special act of the legislature, and, second, those that are chartered under the general act. As to the first class, there is no method of formulating or classifying their provisions, as their forms vary with each par- ticular charter. Some of the special charters make it a condi- tion, or at least an imperative duty, that the road so chartered should be completed and operated to and from the termini men- tioned therein. In all such cases it is very clear that a pur- chaser of the property and franchises of such road can be compelled by mandamus to complete and operate the same throughout its entire line. 91 U. S., 343; 17 Am. L. Reg. (N. S.), 266; 103 N. Y., 95; Elliott on Railroads, sec. 638; 24 L. R. A., 564-8; 113 U. S., 424; 24 N. Y., 261; s. c., 82 Am. Dec., 295; Thompson on Corp., sec. 7826; Rorer on Railroads, p. 572; 29 Conn., 538. Many of the special charters, however, in so far as the pro- visions for completing and oj>erating the road is concerned, is similar to that provided in the general act, and hence the dis- cussion of that class will also embrace those. As to the second class, that is, those chartered under the gen- eral act, the law is not so clear. There is no j>ositive require- 886 PURCHASE, ETC. ment in these charters that the road shall be completed and oper- ated from and to the points mentioned as its termini. The only provision on the subject is the following: "Be it known, That [here insert the names of five or more citizens not under the age of twenty-one years applying for the charter], are hereby constituted a body politic and corporate, by the name and style of [here insert the name], for the purpose of constructing a railway from , in the county of , to , in the county of " Acts- Tenn. 1875, ch. 142. Code Tenn. (S.), 2412; (M. & V.), 1891. This section, as will clearly appear, does not, in express words, require the complete construction and operation of the road from and to the points mentioned as its termini, but many decisions of other states hold that, by implication, the language used above is sufficient to warrant that construction. The question has never been passed upon by the supreme court of Tennessee, but doubtless will be construed, when tested, into a mere license or permit, which would not support a mandamus to complete. Elliott on Railroads, sec. 642. See, also, 2 Pick. (Tenn.), 554. It is very clear that if only a part of the road was purchased the purchasing company could not be compelled to complete or operate the road further than it had purchased. Thus it has been held that where a railroad company mortgaged such a part of its road as was completed, the purchasers under fore- closure proceedings could not be compelled to complete the en- tire road. 85 Pa. St., 501; Cook on Corp. (4th ed.), sec. 786. Under the general laws of the State of Tennessee there is nothing to prevent a railroad company from abandoning its entire right of way, though such action would work a forfeiture of its charter, a failure to .build the entire line of road, as authorized by its charter, however, is not a ground of forfeit- ure in this state. It is probable, however, that it cannot abandon a part which has actually been constructed and in operation without such result. 24 N. Y. , 161; 82 Am. Dec., 205; 17 Am. L. Ry. (N. S.), 266; 113 U. S., 424; Elliott on Railroads, sec. 638; 2 Barn. & Aid., 646; 36 Wis., 467; 20 GENERAL POWERS OF THE N., C. & ST. L. RV. 887 N. \V. Rep., 696; 24 S. E. Rep., 154; 29 Conn., 538; 142 U. S., 492. But see 12 Gray, 180; 1 Shannon (Tenn.), 511; 120 111., 48; Uorcron Railroads, 572; 24 L. R. A., 564. See also 91 U. S., 343; 103 U. S., 95. Under the acts of Tennessee, 1887, ch. 39, a railroad cora- pany may change either terminus before final location of road. This would assist in many cases. It has l>een held that where a road is unfinished a court of equity may have it completed by a receiver. 100 U. S., 605. Railroads chartered under general law in Georgia may change the general direction and route of their road, when and how. See Code, Ga., 1895, 22171. Power of Nashville, Chattanooga & St. Louis Railway over purchased roads. Where the railroad, rights, privileges, and franchises of a railroad corporation, whether domestic or for- eign, are purchased by the Nashville, Chattanooga & St. Louis Railway, it has the same powers over the line or lines of such roads as the original companies had. If such original compa- nies had the power to lease, sell, mortgage, etc., then the Nashville, Chattanooga & St. Louis Railway, as the legal pur- chaser thereof, would also be vested with those powers over the lines of such roads as fully and completely as the original companies were. Roger* v. ^\ 7 . C. <& St. L. Ry, decided Nov. 9, 1898, by U. S. circuit court of appeals, sitting at Cincin- nati, but not yet reported. See, also, 15 Lea (Tenn.), 37; 112 U. S., 610. Nashville. Chattanooga & St. Louis Railway may purchase stock in other roads, when. See p. 074 herein. ALABAMA ACTS AS TO PURCHASING. [In Alabama]. Power of Nashville, Chattanooga & St. Louis Railway to purchase roads in Alabama. As has hereto- fore been explained in the preceding chapter on leases, a corpora- tion acting l>ey ond the jurisdiction that created it, in the absence of statute to the contrary, may ordinarily do those things which, by express grant or necessary implication, it is authorized or 888 PURCHASE, ETC. empowered to do by the laws of the state granting its charter. 36 Am. & Eng. R. R. Cas., 449; 74 Texas, 474; 8 S. W. Rep., 533; 35 Kan., 236; 10 Pac. Rep., 596; 24 Am. & Eng, R. R. Cas., 34; 3 Head (Tenn.), 337; 72 111., 50; 22 Am. Rep., 133; 29 Barb. (N. Y.), 650; Thompson on Corp., 7920; 1 R. (Ky.), 8. A corporation cannot by comity, however, exercise powers within the state wh>,h a domestic corporation is prevented from exercisiujr under the cou v ution of the state, nor those things prohibited by statute. 52 Am. & , iag. R. R. Cas., 115; 50 Fed. Rep., 338. As the Nashville, Chattanooga & St. Louis Railway possesses the power to purchase roads in Tennessee, as heretofore shown, it would follow that it possesses the power in Alabama, in the absence of any legal legislation to the contrary, which does not' now exist. Both, roads must have power ; one to sell and other to buy. 161 D. S., 686; 97 Ky., 675. Domestic corporation of Alabama may sell its property and franchise to foreign corporation. Whenever all of the capital stock of a railroad corporation chartered under the laws of this state is owned by a railroad corporation chartered by the laws of another state, it shall be lawful for the domestic corporation to sell and convey to the corporation owning its stock all of its property, roadbed, rights, and franchises; and it shall be lawful also for any railroad corporation chartered by the laws of another state, owning or operating by lease or otherwise any railroad in this state, to purchase at judicial sale or otherwise, or to lease and to hold and use in such railroad, or to acquire, hold and use all or any part of the capital stock or of the property, roadbeds, rights and franchises of any rail- road corporation of this state, with whose railroad the railroad of the purchasing or leasing corporation or its predecessor in interest shall be connected, either directly or by means of an intervening line, but the purchasing or leasing corporation shall keep an office and an agent in this state, and such railroad, so purchased or leased, shall be in all respects subject to the laws of this' state, as if owned by a domestic corporation, and GENERAL POWERS OF THE X. , C. A ST. L. RV. all liens and rights of creditors shall be preserved unimpaired, and any and all purchases and leases, such as are authorized by this act, heretofore made are hereby legalized. Acts Alabama, 1898-9, N 7 o. 329, p. 28. Aid to, or purchase and lease of other roads. A corpora- tion chartered under the laws of this or any other state, here- tofore or hereafter created for the purpose of building, con- structing, or operating a railroad, may, at any time, by means of subscription to the capital of any other corporation or com- pany, or otherwise, aid such corporation or company in the con- struction of its railroad, for the purpose of forming a connection with the road owned by such corporation or company furnish- ing aid; or any railroad corporation, organized in pursuance of the laws of this or any other state, may lease or purchase any part or all of any railroad constructed by any other corporation or company, if the lines of such road are continuous or con- nected, upon such terms and conditions as may be agreed on between the corporations or companies, respectively; or any two or more railroad corporations or companies, whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote the objects for which they were created; but no such aid shall be furnished, nor any purchase, lease, or arrangement perfected, until a meeting of the stockholders of each of such corporations or companies has been called by the directors thereof, at such time and place and in such manner as they shall designate: and the holders of a majority in value of the stock of such corpora- tion or company, represented at such meeting, in person or by proxy, and voting thereat, shall have assented thereto. Code Ala. 1896, 1170. Unaided by statute a railroad has no power to lease its road and property: Af. erating, or which is or may IK? authorized to own or operate, by lease or otherwise, 890 PURCHASE, ETC. any railroad in this state, is authorized and empowered upon the .resolution of its board of directors, to aid any railroad company incorporated under any general or special law of this state, in the construction, renovation, or operation of its rail- road, by the indorsement or guaranty of its securities, which have been or may be issued for such purpose, in such manner as may be agreed upon by the board of directors of the con- tracting companies, or by leasing, or by guaranteeing the rentals of any lease of any such railroad, on such terms as may be agreed upon by the respective boards of directors. Code Ala. 1896, 1171. Lines may be extended, or branch roads acquired or con- structed. A corporation, now existing or which may here- after be organized for the building, constructing, and operating a railroad, has authority, for the purpose of extending its line, or forming a connection, to acquire, hold, and operate a rail- road without the state; or within the state, may extend its road, or may build, construct, and operate branch roads from any point or points on its line. Code Ala. 1896, 1172. A railroad has implied power to construct necessary turnouts and switches, but power to construct a branch is only given by statute. Arrington v. S. & W. R. Co.. 95 Ala., 434. Mode of making purchase or extension, or of construction, Of branch roads. Such purchase must be made by resolution of the board of directors, which must be submitted to a meeting of the stockholders, called for the purpose of its consideration; of the time and place of which meeting, and of the purpose for which it is called, thirty days' notice must be given to each stockholder whose residence is known, and by publication for four consecutive weeks in a newspaper published at the princi- pal place of business of the corporation, and, at such meeting, must be approved by the vote of a majority, in value, of the stockholders; and, if such resolution is so approved, a copy thereof, and of the proceedings of the meeting of the stock- holders, certified by the president and secretary, under the corporate seal, must be filed and recorded in the office of the secretarv of state. Such extension or construction of such GENERAL POWERS OF THE X., C. A ST. I.. RV. 891 branch road must he made by resolution of the board of direc- tors, to l>e entered in the record of the proceedings of the cor- poration, and designating the j>oint from which and the point to which such extension or such branch road is to be con- structed. A copy of such resolution, certified by the president and secretary, under the corporate seal, must be filed and re- corded in the office of the secretary of state, and thereafter, for the purpose of making such extension or building such branch road, such corjxjration shall have all the rights, powers, and immunities which are now, or may hereafter, by the laws of this state, be, granted to and vested in railroad corporations under and by virtue of the general incorporation laws of the state. Code Ala. 1896, 1173. Before a branch road can be constructed, the prescribed steps must have been taken. Arrlngton v. S. & W. R. Co., 95 Ala., 434. Courts of equity may order sale of railroad, when. All courts exercising equity jurisdiction in this state be, and they are hereby, authorized and empowered by decree to order the sale of the property and franchises of quasi public corporations, at the suit of a creditor or creditors having a judgment or de- cree against such quasi public corporations. Acts Ala., 1898- 99, No. 709, sec. 1, p. 98. Purchasers at, duties Of. The purchaser or purchasers un- der such decree, if not a corporation authorized by the laws of this state to purchase and hold the property of such quasi pub- lic corporation, shall, within thirty days after such sale and conveyance, become incorporated, as provided by the general incorporation laws of this state for the incorporation of pur- chasers under forclosure sales of the property of like corpora- tions, such purchaser or purchasers to associate with himself or themselves the requisite number of other )x?rsons to l>ecome in- corporated. Acts Ala., 1898-99, No. 709, sec. 2, p. 98. Purchasers at, rights Of. Upon the organization of such corporation, and the conveyance to it of the proj>erty and fran- chises of such quasi public corporation by such purchaser or purchasers, such corporation shall Iwcoine, and be entitled to, and shall have, hold, and enjoy, all such property rights and franchises. Acts Ala., 1898-99, No. 709, sec. 3, p. 98. 892 PURCHASE, ETC. Purchasers of railroads in Alabama may organize as a Corporation; hOW. The purchasers of a railroad existing un- der the laws of this state, not being less than seven in number, at any judicial sale, or other sale by authority of law, made since the adoption of the present constitution, or which may be hereafter made, may organize as a corporation, entitling themselves, their associates and successors, to all the powers, rights, and capacity of a corporation organized under the pro- visions of this article. Code Ala.. 1896, 1181. Mode Of Organization. Such purchasers must make a decla- ration, in writing, signed by each of them, stating: 1. The corporate name and style adopted by them. 2. Their names and places of residence, the capital stock of the proposed corporation, and the number of shares into which it is divided. 3. The purpose to organize as a corporation under this article, the property purchased by them, the name of the cor- poration to which it belonged, and the sale at which they pur- chased. 4. Such other matters as they may deem it desirable to state; which declaration must be filed and recorded in the office of the secretary of state; and, upon the filing and record of such declaration, the secretary must issue to such purchasers, their associates and successors, a certificate of incorporation, in the manner hereinbefore provided, under the seal of the state, which must be recorded in his office; and thereafter such corporation must be deemed duly organized. Code Ala., 1896, 11S2. Purchasers of railroads in Alabama under power in a mortgage Or deed Of tUSt. The purchasers of a railroad, the property of a corporation, at a sale under a power in a mort- gage or deed of trust, or under a decree foreclosing a mortgage, deed of trust, or other security of such mortgage, deed of trust, or other security embraced the franchises of such cor- poration, are entitled to, and shall have, hold, and enjoy such franchises; Prwided, They organize as a corporation, under GENERAL POWERS OF THE X., C. A ST. L. RV. 893 the provisions of this article, in the mode prescril>ed in the preceding section. Code Ala. 1S96, 5$ 1183. Consolidation does not o|>erate to brinf into existence a new corpora- tion. Meyer v. Juhnxdm. 53 Ala., 237; B.C. 04 Ala.. 3. Corporation organized by purchasers succeeds to franchises and powers of old cor- poration; as to ownership of property and liabilities, it i.. new. M. t fr .V. R. Co. v. Stclner, <>1 Ala.. 559. ACTS OF GEORGIA AS TO PURCHASING. [In Georgia.] Power of Nashville, Chattanooga & St. Louis Railway to purchase roads in Georgia. As 1ms hereto- fore been explained in the chapter on leasing, a corporation acting beyond the jurisdiction that created it can ordinarily, in the absence of statute, public policy, or judicial decisions to the contrary, do anything in the latter state which by express grant or necessary implication it is authorized or empowered to do by the laws of the state granting its charter. 36 Am. & Eng. R.-R. Cases, 441): 74 Texas, 474; ft S. W. Rep., 533; 35 Kan., 236; 10 Pac. Rep., 51>6; 24 Am. & Eng. R. R. Cases, 34; 3 Head (Tenn.), 337; 72 111., 50; 22 Am. Rep., 133; 29 Barb. (N. Y.), 650; Thomp. on Corp., 7920; 1 R. (Ky. ), 8. As the power to purchase is possessed in Tennessee, as here- tofore shown, it would follow that it is also possessed in Georgia in the absence of statute to the contrary, which does not now exist, save as to the purchase of competing lines. 1. Both roads must possess power; one to sell and other to buy. 161 U. S., 686; 97 Ky., 675. 2. A foreign corporation cannot by comity exercise powers within a state which a domestic corporation would be prevented from exercising under the constitution of the state. 52 Am. it Eng. 11. R. Cases, 115,' 50 Fed. Rep., 338, nor be permitted to do those things prohibited by statute. 3. Cannot purchase parallel or competing lines. Railroads char- tered under general laws of (teorgia are prohibited from purchasing a competing line of railroad or entering into contracts with them calcu- lated to defeat or lessen competition. Code (Ja. 1895, |2173; nor could the Nashville. Chattanooga & St. Louis Railway do so. See below. Railroads chartered under general laws of Georgia may purchase Other roadS, not Competing, etc. Said railroad com- pany shall have the power to make contracts with any railroad 894 ri ucttASE, ETC. compmy which has constructed, or shall hereafter construct, any railroad within this state, or any other state, that will enable said cohipany to run their roads in connection with each other, and merge their stocks, or to consolidate with any such company within or without the state, or to lease or to purchase the property of any other such company, and hold, use, and occupy the same in such manner as they may deem most ben- eficial to their interest; Prodded, That no railroad shall pur- chase a competing line of railroad or enter into any contract with a competing line of railroad calculated to defeat or lessen competition in this state; and any violation of this section shall subject the corporation to all penalties incident to such violation of the law. Code Ga. 1895, 2173. Railroads chartered under general law may sell or lease their roads to, or consolidate with, other companies. Any railroad company incorporated under the provisions of this article shall have authority to sell, lease, assign, or transfer its stock, property, and franchises to, or to consolidate the same with, those of any other railroad company incorporated under the laws of this or any other state, or of the United States, whose railroad within or without this state shall connect with, or form a continuous line with, the railroad of the company incorpo- rated under this law, upon such terms as may be agreed upon; and, conversely, any such corporation organized under the provisions of this article may purchase, lease, consolidate with, absorb and merge into itself the stock, property, and franchises of any other railroad company incorporated under the laws of this or any other state, or the United States, whose railroad within or without this state shall connect with, or form a con- tinuous line or system with, the railroad of such company in- corporated under this law, upon such terms as may be agreed upon. And it shall be lawful for any railroad company or corporation now or hereafter formed by the consolidation of one or more railroad companies or corporations organized under the laws of this state, or under the laws of this state and any other states, with one or more companies or corporations organized under the laws of any other state, or under the laws GENERAL POWERS OF THE N., C. ose, and to the amount au- thorized by the laws of the state under which either of said companies or corporations so consolidated was organized, and, to secure the same, in case of bonds, by mortgages or trust deeds upon its real or personal property, franchises, rights, and privileges, whether within or without this state; l*rovidfd^ That no railroad company shall make any contract under the provisions of this section with any other railroad company which is a competing company that is calculated to defeat or lessen competition in this state or to encourage monopoly. Code Ga. 1895, 2179. Purchasers at judicial sales of railroads in Georgia; rights Of. In case of sale of any railroad heretofore incorpo- rated by virtue of any general or special law, or which may hereafter IK) incorporated by virtue of this article, or any part thereof constructed or in course of construction, or by virtue of any trust deed, or any foreclosure of any mortgage thereon, or any judicial sale, the party or parties acquiring titles under such sales, and their associates, successors or assigns, shall have or acquire thereby, and shall exercise and enjoy thereafter the same rights, privileges, grants, franchises, immunities and advantages in or by said trust deed enumerated and conveyed which belonged to and were enjoyed by the company making such deed or mortgage, or contracting such debt, so far as the same relate or ap|>ertnin to that portion of said road or the part or line thereof mentioned or described and conveyed by said mortgage or trust deed and no further, as fully and absolutely in all respects as said railroad company, office-holders, share- holders, and agents of such company might or could have had, had not such sale or purchase taken place; P/ttrufaf, That nothing in this article shall be construed to reserve any exemp- tion from taxation, either state, municipal or county, or any 896 PURCHASE, ETC. special rights, privileges and immunities that are not herein authorized to be granted to each and all railroads alike, in con- formity with the present constitution of Georgia. Code Ga., 1895; 2167 (11). Purchasers at judicial sales of railroads in Georgia ; reor- ganization Of. Such purchasers, their associates or assigns, may organize anew by tiling a petition with the secretary of state, requesting to be substituted for the original petitioners and stockholders, with all their powers, rights, privileges, duties, and liabilities under this article when said new incor- porators may proceed anew by electing new directors as pro- vided by this article, and may distribute and dispose of stock, and may conduct their business generally as provided by this article, and such purchaser or purchasers and their associates shall thereupon be a corporation, with all the powers, privileges, and franchises conferred by, and be subject to the provisions of this section. But no debt, trust deeds, mortgages, or other liens shall be made or created by the first railroad company, or b}' the purchasers, except on the terms and conditions as pre- scribed in section 2165. Code Ga. 1895, 2167(12). Purchasers at judicial sales of railroads in Georgia ; how incorporated. The application for incorporation by the pur- chaser or purchasers may be made by said purchaser or pur- chasers alone, or with such associates as may be desired, and the petition shall set forth only the facts showing the sale and purchase as in this section provided. If the purchasers desire any additional powers not contained in the original charter of the railroad company, but which may be obtained under this article, the said petition shall set forth specifically what addi- tional powers are so desired. The petition shall be verified by one of the purchasers or by his counsel. When the petition is filed as aforesaid, the secretary of state shall examine the same and issue a certificate under the great seal of the state in the form prescribed, varied to suit the particular case. The peti- tioners shall pay to the treasurer of the state a fee of fifty dol- lars for this service. Code Ga. 1895, 2168. ' KM: K\I, POWERS OF THE N., C. A ST. L. RY. Contract for conditional sale and purchase of rolling Stock, etc. Any person or corporation may make a contract in writing with any railroad company or person owning or oper- ating a railroad in this state to furnish said company or person with rolling stock or other equipment, deliverable either imme- diately or subsequently at stipulated periods; by the terms of which contract the purchase money for said property, in whole or in part, is to be paid thereafter, and in which contract it may be agreed that the title to the property so sold, or contracted to be sold, shall not pass to or vest in the vendee until the pur- chase money for the same shall have been fully paid, notwith- standing the delivery of such property to and the possession of the same by the vendee; but that until said purchase money shall have been fully paid, the title to said property shall re- main in said vendor and his or its assigns. Code Ga., 1895, 2326. Contracts for the lease Of rolling StOCk. The manufac- turer, owner or assigns of any railroad equipment or rolling stock may make a written contract for the lease of such equip- ment or rolling-stock to an}' railroad company or person own- ing or operating a railroad in this state; and in such contract it shall be lawful to stipulate for a conditional sale of said prop- erty to the said lessee on the termination of such lease, and to stipulate that the rental received for said property may, as paid, or, when fully paid, be applied and treated as purchase money, and that the title to such property shall not vest in such lessee or vendee until the amount of such purchase money shall have been paid in full to the lessor or vendor, or to his or its assigns, notwithstanding the delivery of such property to and possession of the same by such lessee or vendee, but that until such purchase money shall have been fully paid, the title to such property shall remain in said lessor or vendor, or in his or its assigns. Code Ga., 1895; 232T. Validity and record of contracts. Every such contract hereby authorized shall be good, valid, and effectual to retain the title to said property in said vendor or lessor, or in his or its assigns, as against the said vendee or lessee, and against all 57 898 PURCHASE, ETC. persons claiming thereunder. Such contracts, if made within this state, shall be executed in the presence of, and attested by, or be approved before, a notary public or justice of any court in this state, or a clerk of the superior court. If made with- out this state, it shall be executed in the presence of, and at- tested by, or proved before, a commissioner of deeds for the State of Georgia, or a consul or vice consul of the United States (the certificates of the foregoing officers, under their seals, being evidence of the fact), or by a judge of a court of record in the state where executed. Such contract shall be re- corded within six months after the date of its execution, in the office of the clerk of the superior court of the county where is situated the principal office, in this state, of the said railroad company. Each locomotive engine and each car so sold, or contracted to be sold or leased, as aforesaid, shall have the name of the vendor or lessor, or the assignee of such vendor or lessor, plainly placed or marked on the same, or be otherwise so marked as to plainly indicate the ownership thereof. Code Ga., 1895, 2328. ACTS OF KENTUCKY AS TO PURCHASING. [In Kentucky.] Power of Nashville, Chattanooga & St. Louis Railway to purchase roads in Kentucky. As hereto- fore explained in the discussion of the Kentucky law in the chapter on leases, a corporation acting beyond the jurisdiction that created it can do ordinarily anything which, by express grant or necessary implication, it is authorized or empowered to do by the laws of the state granting its charter, in the ab- sence of statute, public policy, or judicial decisions of the lat- ter state to the contrary. 29 Barb. (N. Y.), 650; 22 Am. Rep., 133; 72 111 , 50; 3 Head (Tenn.), 337; 24 Am. & Eng. R. R. Cas., 34; 10 Pac. Rep., 596; 35 Kan., 236; 8 S. W. Rep., 533; 36 Am. & Eng. R. R. Cas., 449; 74 Texas, 474; Thompson on Corp., sec. 7920. As the power to purchase is possessed in Tennessee, as here- tofore shown, it would follow that it is also possessed in Ken- GENERAL POWERS OF THE X., C. A ST. L. RY. 899 tucky in the absence of any law to the contrary, which does not now exist, save as to the purchase of parallel or competing lines. 1. Cannot purchase or lease parallel or competing 1 lines. It is pro- vided by the constitution of Kentucky that " no railroad, telegraph, telephone, bridge, or common carrier company shall consolidate its cap- ital stock, franchises or property, or pool its earnings in whole or in part, with any other railroad, telegraph, telephone, bridge, or common carrier company owning' a parallel or competing line or structure, or ac- quire by purchase, lease or otherwise, any parallel or competing line or structure, or operate the same.' 1 Code Ky., 1894, p. 139, 5 201. The state mav enjoin such purchasers. 97 Ky., 675. The word "parallel," as used above, was not used according to its strictly accurate meaning of two roads constructed &iul dlxttint apart throughout their whole extent, which would be impracticable, but in the sense of two conforming in their general direction. 97 Ky. , 675. 2. Foreign corporations. A foreign corporation cannot by comity exercise powers within a state which a domestic corporation would be prevented from exercising under the constitution of the state. 52 Am. & Eng. R. R. Cases. 115; 50 Fed. Rep., 33S. Nor do those things prohib- ited by statute, public policy, or judicial decisions of the latter state. 3. As to whether or not the Nashville, Chattanooga & St. Louis Rail- way is a foreign corporation in Kentucky, see discussion of Kentucky law in chapter herein on leases. If it is not a foreign corporation, then it possesses the power to purchase under its charter and general amenda- tory acts of Tennessee, as has heretofore been explained. 4. Purchasers under foreclosure proceeding's; powers of, as well as powers of security holders. See acts Ky., 1896, p. 29, ch. 21. 5. Both roads must possess power; the one to sell, the other to buy, in order to make purchase legal. 161 U. S., 686 ; 97 Ky., 675. CHAFFER LXXIV. RULES AND REGULATIONS WHAT ARE LEGAL WHO TO ENACT HOW DIFFER FROM flY-LAWS. [Generally.] Railways may make reasonable rules and regulations. "All railways have the implied authority, as in- cident to their corporate character and purposes, to make and enforce all reasonable rules and regulations for the transaction and conduct of their business, which, in their judgment, may 900 RULES AND REGULATIONS. be necessary for the successful, convenient, and safe conduct thereof. Their business implies a degree of authority almost ab- solute in the management, conduct, and control of their trains and the persons thereon, as necessary for their common safety, and to protect themselves from imposition and wrong." Rorer on Railroads, p. 227; 15 N. Y., 455; 24 Conn., 249; 56 Pa. St., 294; 40 Miss., 374; Elliott on Railroads, sees. 200, 41; 56 111., 365; 11 Lea (Tenn.), 98, 533; 13 Lea (Tenn.), 280, 507; 14 Lea (Tenn.), 129; 1 Pick. (Tenn.), 627, 613; 8 Lea (Tenn.), 413; 5 Lea (Tenn.), 124; 8 Lea (Tenn.), 438; 16 Pick. (Tenn.), 213; 110 Ala., 143. Rules as to depots and other buildings. A railway com- pany may make and enforce, by its agents, reasonable and nec- essary rules for the transaction of its business, and for the proper and orderly management of its depots and other build- ings open to the public. 8 Lea (Tenn.), 413. A regulation forbidding hackmen, peddlers, expressmen, and loafers from coming within the passenger depot is reasonable. 8 Lea (Tenn.), 413; and a watchman may execute the regula- tion by reasonable but necessary force. Id. It is also reasonable to require persons in and around the depot building to be orderly, etc. Elliott on Railroads, sec. 200. Rules as tO tickets. A railway company has a right to make regulations requiring passengers to purchase tickets be- fore entering coaches attached to their freight trains, and au- thorizing conductors to expel persons not having tickets, even though they may offer money in payment of their fare. 5 Lea (Tenn.), 124. But if company had been usually receiving money on freight trains for fare, passenger is entitled to notice of change before he can be expelled for non-compliance. Same. Railway may, by a regulation of which the public are duly notified, establish a higher rate of fare if paid on the cars than in the purchase of a ticket for the same trip, but the fare can in no event exceed the charge limited by the charter of the rail- way. 11 Lea (Tenn.), 98; 95 Ala., 92. A regulation is reasonable which provides that passengers GENERAL POWERS OF THE N., C. A ST. L. RY. 901 shall, on demand, exhibit his ticket on entering the train, and shall afterwards, on like demand, surrender it or pay fare un- der penalty of removing from car. 14 Lea (Tenn.), 129; El- liott on R. R. , sec. 200. A conductor cannot be required to hear testimony on the subject of a lost ticket, or determine its weight at the peril of the company, under a rule which gives him no discretion. 14 Lea (Tenn.), 129. Ladies' Car. A railway may make and enforce reasonable regulations touching the car in which a passenger may be re- quired to take passage, provided equal and proper accommoda- tions are furnished to all passengers holding first class tickets; and a regulation by which a particular coach of a train is set apart for the exclusive accommodation of ladies and gentlemen traveling with ladies is reasonable. 1 Pick. (Tenn.), 627, 613. Schedule regulations. A railway may make reasonable regulations for running its trains, and-if a purchaser of a ticket has notice of same, or the railway company had given such pub- licity to same in the ticket office, and by posters in the cars, that a person of ordinary intelligence, by the use of reasonable care and caution, would or might obtain all requisite informa- tion, then he is bound by the regulations. 11 Lea. (Tenn.), 533. Nor will the railway waive its rights under such regulations by the conductor punching and taking up the ticket after hav- ing told the holder that the train did not stop at his place of destination, the ticket holder being on a train which, according to the schedule, did not stop there. 11 Lea (Tenn.), 533. Railway may adopt rule providing that particular trains shall stop only at certain stations, where it furnishes reasonable means of reaching all stations on its road by other trains. 26 S. W. R., 430; 71 Pa. St., 432; 10 Am. R., 711; 52 Ind., 540; 53 111., 510; 84 Tex., 678; 52 Am. & Eng. R. R. Cas., 233; 118 Mo., 199. Sleeping car regulations. A regulation is reasonable that provides that none but holders of first-class tickets shall ride on sleeping cars. 49 111. App., 75; 55 Ark., 134; 52 Am. & Eng. R. R. Cases, 224. 902 RULES AND REGULATIONS. Passenger regulations. It is also reasonable to prohibit pas- sengers from riding in the baggage or express cars, or on the engines, platforms, or other improper places of danger. 30 Fla., 1; 52 Am. & Eng. R. R. Cases, 409; 16 L. R. A., 631; 22 Barb. (N. Y.), 91; 155 Mass., 371; 92 Pa. St., 21. Also to prohibit disorderly conduct in cars. 76 Pa. St., 510; 53 Miss., 200; 2 Sumn. (U. S.), 221. Also that passengers shall be seated in the cars while the train is in motion. 15 N. Y., 455; Elliott on Railroads, sec. 200. Railway not liable for injury to passenger riding on freight train in known violation of rules, with conductor's permission. 10 Pick. (Tenn.), 383; 13 Pick. (Tenn.), 579. So it is a reasonable rule to require passengers to make a continuous trip, unless they procure a "stop-over" ticket or check. 11 Met. (Mass.), 121; 45 Am. Dec., 190; 54 Wis., 234; 41 Am. R., 23; 28 Barb. (N. Y.), 275; 46 N. H., 213. All persons refusing to comply with rules may be excluded from car or premises. Rules as to baggage and freight departments. " Like rea- sonable rules may be made to govern the receipt, carriage, and delivery of freight and baggage, and the shipper may be com- pelled to conform to them." 40 Miss., 374; 123 Pa. St., 140; 108 N. C., 612; 90 Ga., 694; 44 Ala., 468, cited by Elliott on Railroads, sec. 200. Rules governing employes. " It is not only the right, but it is also the duty, of railroad companies to promulgate and enforce reasonable and necessary rules for the safety of its employes in the management and operation of its road." El- liott on R. R., sec. 200, citing 116 Pa. St., 628; 126 N. Y., 673; 133 N. Y., 666; 37 Ohio St., 549; 93 111., 302; 73 Ind., 261; 100 U. S., 213; 12 Pick. (Tenn.), 129. These rules must be confined to the management of the company's affairs. The company cannot pass rules regulating right of employes to trade with particular merchants (code Tenn. (S.), 6882), nor to vote (code Tenn. (S.), 6884), nor in selecting their physicians (code Tenn. (S.). g6879j, etc. Employes must obey these rules, or they cannot recover if injured. 13 Lea (Tenn.), 280. GENERAL POWERS OF THE N., C. 4 ST. L. RV. 903 They must know and obey the rules, though they are not held to strict obedience to neglected or disused rules. 12 Pick. (Tenn.), 129. Who to enact rules and regulations; bow differ from by-laws. It has been decided in this state that all by-laws, orders, and resolutions adopted by a railway company are always under the control of a majority of the stockholders, unless expressly provided otherwise by the charter, and may be repealed, altered, or modified from time to time by the majority. 5 Sneed, 566-8. The directors of the Nashville, Chattanooga & St. Louis Railway have authority, however, to pass all by-laws. See discussion under heading, "By-laws," and method of amending them. There is a distinction between a by-law and a rule or regula- tion. The former are for the government of the members and officers in their dealings with the corporation, and must be enacted or adopted by the body of stockholders, or directors. The latter, on the other hand, relate to the government of the company's employes and servants, and of passengers and others of the public transacting business with the company, and may usually be made by any officer or agent of the corporation duly authorized to control the business or property to which they relate. Elliott on R. R., sec. 199; 38 S. C., 529. It has even been held that, where a local station agent is given charge of the depot building and station grounds, he may make rea- sonable rules for the regulation of persons having business to transact with the company, and may exclude persons who refuse to conform to such regulations, and others who come to the station for purposes of their own not connected with the company's business. Elliott on R. R., sec. 303; 7 Met. (Mass.), 596. Construction Of rules. The general rule in Tennessee is that the construction of a written instrument introduced in evi- dence, if complete and intelligible in itself, is matter of law for the court, expert testimony being admissible in proper cases to aid the court. 13 Lea, 280; 14 Lea, 129; 16 Pick. (Tenn.), 213. 904: SALES, ETC. Car service rules. Railways may generally pass such rea- sonable rules and regulations as to the service of cars as the nature of their business requires. The question, however, as to whether the rules of car service associations for detention of cars and the time fixed for loading and unloading are reason- able, are questions of fact. 98 Ky., 152. CHAPTER LXXV. SALES POWER TO SELL RAILROAD ROLLING STOCK, FRAN- CHISES, ETC. WHO TO AUTHORIZE. [In Tennessee.] Power of Nashville, Chattanooga & St. Louis Railway to sell its railroad franchises, etc. it is a well established principle of law that, in order to render the sale by a railway company of its roads, franchises, etc., valid, the power to sell must be conferred upon it either in its charter, amendments thereto, or by the general law. 161 U. S., 677- 691; 145 U. S., 393-404; 4 Pick. (Tenn.), 153; 101 U. S., 71; 130 U. S., 1; Jones on Railroad Securities, sees. 1 to 10; 139 U. S., 24; 160 U. S., 514; 86 Tenn., 603; 163 U. S., 564; 88 Tenn., 138, 152; Thompson on Corp., sec. 6137; El- liott on Railroads, sees. 488, 67, 519; 152 U. S., 191. It has been held, however, that this rule does not apply to property not necessary to enable the corporation to perform its duties to the public. 99 U. S., 48, 57; 22 Wall., 527; Elliott on Railroads, sec. 488. Charter provisions. The only charter provision authorizing the railway to sell is to be found in section 1, page 1, herein, and is as follows: The said railway " shall be capable in law to buy, receive by gift, hold, sell, and convey real and personal estate as hereinafter provided," etc. This, however, would hardly authorize the sale of its railway, franchises, etc, but would doubtless be held to apply to real and personal estate not necessary to enable the corporation to perform its duties to GENERAL POWERS OF THE N., C. A ST. L. RY. 905 the public. There are no amendments to the charter upon the subject. 1. May sell under the general law. however. All railroad companies of this state, and any other state or states, are authorized and empowered to build, lease or let, acquire by purchase, lease or otherwise, and operate, hold, or dispose of any railroad, or railroads in any state or states, or any parts or portions of any such railroad or railroads, and the distribution thereof, as may be determined upon by their stockholders, and to acquire by purchase or otherwise, and hold or dispose of any bonds or shares of the capital stock of any railroad com- pany or companies in any state or states, and to indorse and guarantee the bonds of any railroad company or companies in any state or states, whose original charter of incorporation was granted by the state of Tennessee; Provided, That the same be approved by the vote of three-fourths in amount of the capital stock of said company present and voting, either in person or by written proxy, at a regular or called meeting of the stockholders of said company; And provided furt far, That sixty days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper, of the time, place, and purpose of the meeting. Acts Tenn. 1881, ch. 9, sec. 2, as amended by acts Tenn. 1891, ch. 61; code Tenn. (S.), 1540. See 4 Pick., 140. This act does not expressly authorize a sale, but the use therein of the word "dispose" in its connection, would doubt- less authorize it. 2. Same. All corporations now or hereafter existing under the laws of this state, whether incorporated under special or general laws of the state, shall have the power, and they are hereby authorized and empowered, to lease and dispose of their property and franchises, or any part thereof, to any corpora- tion of this or any other state engaged in or carrying on, or authorized by its charter to carry on, in this or any other state the same general business as is authorized by the charter of any such lessor corporation; and said corporations shall likewise have the authority and power, and are hereby authorized, to make 906 SALES, ETC. any contract for the use, enjoyment, and operation of their prop- erty and franchises, or any part thereof, with any such other corporation of this or any other state on such terms and con- ditions as may be agreed upon between the contracting corpo- rations; and such lessee corporation, or corporations, is author- ized and empowered to make and carry out such leases and contracts; Provided, however, That any such leases or con- tracts when made by or under the direction of the board of directors of the contracting corporations, shall be authorized or approved by the vote of a majority in amount of the stock of the lessor corporation present or represented at a regular or called meeting of the stockholders of said corporation; Pro- vided farther, That sixty days' notice of such meeting be given in a Memphis, Knoxville, and Nashville daily newspaper of the time, place and purpose of such meeting; and, Provided fur- ther, That where the lessee corporation is a corporation of this state, the authority or approval of its stockholders shall in like manner be obtained to the contract or lease. This act shall not be so construed as to authorize any cor- poration of this or any other state to lease or purchase any rail- road and line that is a competitor for the same business with any line already owned or under control by lease or otherwise, or two lines of railway that are competitors for the same busi- ness in this state. Acts Tenn. 1887, ch. 198, p. 329; code Tenn. (S.), 2043, 2044, 2045, 2046a. The above act seems to apply particularly to leases, but may be broad enough to cover sales, and hence is inserted here. Power to mortgage, however, does not of itself give power tO sell. 4 N. M., 337; 20 Pac. R., 109; Elliott on Rail- roads, sec. 519; 122 U. S., 561; 4 Pick. (Tenn.), 153. Who to authorize, stockholders or directors ; vote neces- sary. Each of the foregoing acts make the approval of the stockholders necessary. The act of Tenn. 1881, ch. 9, sec. 2, as amended by acts 1891, ch. 61, however, should be followed, as it is the controlling act. It provides, "That the same be approved by the vote of three-fourths in amount of the capital stock of said company present and GENKK.U. row KK8 OF THE N., C. ST. L. RV. '.'"7 voting, cither in person or by written proxy, at a regular or called meeting of the stockholders of said company; and that sixty days' notice be given in a Memphis, Knoxville, and Nash- ville daily newspaper of the time, place, and purpose of the meeting." Power to sell its purchased roads in Tennessee. The Nashville, Chattanooga & St. Louis Railway has purchased many railroads in the states of Tennessee, Alabama, Georgia, and Kentucky, together with their rights, privileges, and fran- chises. In ascertaining its power now to sell those roads to other companies, regard must also be had to the charters, amendments, and laws of the respective states affecting such roads. In other words, as to the lines of the roads so pur- chased, the Nashville, Chattanooga & St. Louis Railway would be vested with all the powers and privileges and subject to all the duties and liabilities of the respective original companies. If they had the power to sell, then the Nashville, Chattanooga & St. Louis Railway would also hare that power as to those particular lines as fully and completely as the original compa- nies had. Rogers v. ^V., C. cfc St. L. Ry. et at., decided No- vember 9, 1898, by the United States circuit court of appeals, sitting at Cincinnati, but which opinion has not yet been re- ported. See, also, 15 Lea (Tenn.), 37; 112 U. S., 610. To render sale legal, vendor company must have power to sell and vendee company to buy. 161 U. S., 686; 97 Ky., 675. Conditional sale of rolling stock and equipments. in any written contract of or for the sale of the railroad equip- ments or rolling stock, deliverable immediately or subsequently at stipulated periods, by the terms of which the purchase money in whole or in part is to be paid in the future, it may be agreed that the title to the property so sold or contracted to be sold shall not pass to or vest in the vendee until the purchase money shall have been fully paid, or that the vendor shall have and retain a lien thereon for the unpaid purchase money, not- withstanding delivery thereof to and possession by the vendee; Provided, That the terms of credit for the payment of the pur- 908 SALES, ETC. chase money shall not exceed six years from the execution of the contract. Acts Tenn., 1885; ch 96; 1; CodeTenn. (S.), 3587. Same. Leasing clause for conditional sale. in any writ- ten contract for the leasing or renting of railroad equip- ments or rolling stock, it shall be lawful to stipulate for a con- ditional sale thereof at the termination of such lease, and to stipulate that the rentals received may, as paid, or when paid in full, be applied and treated as purchase money, and that the title to such property shall not vest in such lessee or vendee until the purchase money shall have been paid in full, notwith- standing delivery to and possession by such lessee or vendee, subject, however, to the proviso obtained in the above section. Same; 2; CodeTenn. (S.); $3588. Same. Contract to be probated and registered, and roll- ing Stock branded. Every such contract specified in the two preceding sections, shall be good, valid and effectual, both in law and equity, against all purchasers and creditors. Pro- vided, First, the same shall be acknowledged by the vendee or lessee before some officer authorized by law to take acknowl- edgments of deeds in the form required as to conveyance of real estate; second, such instruments shall be registered in the office of the register of the county in which, at the time of the execution thereof, is situated the principal office of the vendee or lessee in this state, and in the office of the secre- tary of state; third, each locomotive engine or car so sold, or contracted to be sold or leased, as aforesaid, shall have the name of the vendor or lessor, or the assignee of such vendor or lessor, plainly placed or marked on each side thereof, or be otherwise marked, so as to indicate the ownership thereof. Same; 3; CodeTenn. (S.); 3589. Sections four and five of the above act provides that the act shall not apply to sales and contracts made before the passage of this act, and that acknowledgments of such contracts may be made in the form re- quired as to conveyances of real estate. Sale Of freight for Charges. See p. 821, et *#., herein. GENERAL POWERS OF THE N., C. A ST. L. RV. '.' "'. ACTS OF ALABAMA RELATING TO SALES. [In Alabama.] Power of the Nashville, Chattanooga & St. Louis Railway to sell its road in Alabama. As has hereto- fore been explained in the chapter on leasing, a cor|x>ration acting beyond the jurisdiction that created it can, ordinarily, in the absence of statute, public policy, or judicial decisions to the contrary, do anything in the latter state which by express grant or necessary implication it is authorized or empowered to do by the laws of the state granting its charter. 1 It. (Ky.), 8; 36 Am. & Eng. R. R. Cases, 447; 74 Texas, 474; 8 S. W. Rep., 533; 35 Kan., 236; 10 Pac. Rep., 596; 24 Am. & Eng. R. R. Cases, 34; 3 Head (Tenn.), 337; 72 111., 50; 22 Am. Rep., 133; 29 Barb. (N. Y.), 650; Thomp. on Corp., sec. 7920. As the power to sell is possessed in Tennessee, as heretofore shown, it would follow that it is also possessed in Alabama in the absence of statute, public policy, or judicial decisions to the contrary, none of which now exist. 1. Both roads must possess power, one to sell, the other to buy. 161 U. S., 686; 97 Ky., 675. 2. A foreign corporation cannot, however, by comity, exercise power* in a state which a domestic corporation would be prevented from exer- cising under the constitution of the state. 52 Am. & Eng. R. R. Cases, 115; 50 Fed. Rep., 338; nor be permitted to do those things prohibited by statute. Domestic corporations of Alabama can sell their property and franchises to foreign corporations. See preceding chap- ter on "Purchasing." See p. 888, herein. Courts of equity may order sales of railroads in Alabama, When. See acts of Ala. 1898-99, No. 709, p. 98. See also chapter herein on "Purchasing." Power to sell its purchased roads in Alabama. The Nash- ville, Chattanooga & St. Louis Railway has purchased many railroads in the States of Alabama, Georgia,' Kentucky, and Tennessee, together with their rights, privileges, and fran- chises. In ascertaining its power now to sell those roads to other companies, regard must also be had to the charter, amend- 910 SALES, ETC. ments, and laws of the respective states affecting such roads. In other words, as to the lines of the roads thus pur- chased, the Nashville, Chattanooga & St. Louis Railway would be vested with all the powers, privileges, and franchises, and subject to all the duties and liabilities of the respective original companies. If they had the power to sell, then the Nashville, Chattanooga & St. Louis Railway would also have that power as to those particular lines as fully and completely as the orig- inal companies had. Rogers v. N. , C. <& St. L. Ry. et al. , decided November 9, 1898, by the United States circuit court of appeals, sitting at Cincinnati, but which opinion has not yet been reported. See, also, 15 Lea (Tenn.), 37; 112 U. S. , 610. Power to sell its purchased roads in Alabama. The N., C. & St. L. Ry. has purchased many railroads in the States of Alabama, Georgia, Kentucky, and Tennessee, together with their rights, privileges, and franchises. In ascertaining its power now to sell those roads to other companies, regard must also be had to the charter, amendment, and laws of the re- spective states affecting such roads. In other words, as to the lines of the roads thus purchased, the N., C. & St. L. Ry. would be vested with all the powers, privileges, and franchises, and subject to all the duties and liabilities, of the respective original companies. If they had the power to sell, then the N. , C. & St. L. Ry. would also have that power, as to those particular lines, as fully and completely as the original com- panies had. Rogers v. N., C. & St. L. Ry. et al., decided November 9, 1898, by the United States circuit court of ap- peals, sitting at Cincinnati, but which opinion has not yet been reported. See also, 15 Lea (Tenn.), 37; 112 U. S., 610. ACTS OF GEORGIA RELATING TO SALES. [In Georgia.] Power of the Nashville, Chattanooga & St. Louis Railway to sell its road in Georgia. As has heretofore been explained in the chapter on leasing, a corporation acting beyond the jurisdiction that created it can ordinarily, in the absence of statute, public policy, or judicial decisions to the GENERAL POWERS OF THE N., C. e vested with all the powers, privileges and franchises, and subject to all the duties and liabilities of the respective original companies. If they had the power to sell, then the Nashville, Chattanooga & St. Louis Railway would also have that power as to those particular lines as fully and completely as the original compa- nies had. Roger* v. N. C. & St. L. Ry. ct <*/, decided Novem- ber 9, 1898, by the United States circuit court of appeals, sit- ting at Cincinnati, but which opinion has not yet been reported. See also 15 Lea (Tenn.), 37; 112 U. S. 610. 58 914 STATIONS, ETC. CHAPTER LXXVI. STATIONS POWER OF COMPANY TO ABANDON RULES AND REGULATIONS CONCERNING. Right of Nashville, Chattanooga & St. Louis Railway to abandon, tear down, and remove stations. it is a well es- tablished principle of law that in the absence of statute of the contrary, a railroad company may locate its stations on the line of its road at such place or places as will best serve its own inter- ests, having regard to those of the public. It can, from time to time, tear down and remove such stations as may have al- already been built, to more convenient places in the same vi- cinity, and in some cases to places three or four miles distant. The number, size and locality of the stations are left almost ex- clusively to the sound discretion of the managers of the cor- porations, where there is no positive statute to the contrary, and they may remove them to such place or places as an eco- nomical administration of their affairs may require. 142 U. S., 492; [35; 1096]; 110 U. S., 667; [28: 291-7]; 104 N. Y., 58, 66; 120 111., 48; 132 111., 559, 571; 103 N. Y.', 195. See also 12 Gray, 180; 18 Minn., 40. 1. Above law inoperative in Georgia, when. The above law would be inoperative in Georgia, inasmuch as the railroad commissioners have power to require the location of such depots, and the establishment of such freight and passenger buildings as the condition of the road, the safety of freight, and the public comfort and convenience may require, upon the giving of such railroad company to be affected thereby the no- tice as provided. Code Ga., 1895; \ 2189. 2. Inoperative in Kentucky, when. It is provided by the Kentucky statutes that " Any company that has established and maintained throughout the year for five consecutive years, a passenger station at a point on its road, shall not abandon such station, nor substantially di- minish the accommodations furnished by the stopping of trains thereat, as compared with that furnished at other substantially similar stations on the same road without the written consent of the railroad commis- sion. Code Ky., 1894; 772. GENERAL POWERS OF THE N., C. A ST. L. RV. 915 3. In Alabama. See \ 3490 of Code 1896. 4. In Tennessee. Hy Acts 1897, 113, a railroad commission was ere- ated, but was given no power in regard to stations. Rules and regulations concerning. [See rules and regula- lations, p. 899, herein. CHAPTER LXXVII. STOCKHOLDERS MEETINGS NOTICE OF QUORUM VOTING QUALIFICATION FOR WHO MAY VOTE ELECTIONS AND LAWS AFFECTING GENERALLY. Meetings of stockholders; charter provisions as to. Section 9 of the charter provided for the first meeting of stockholders and the election of directors. It further provided that the stockholders should at this meeting fix on the day and place, or places, where the subsequent election of directors should lie held, and that such elections should thenceforth be annually made. It was also provided therein that if the day of annual election should pass without any election of directors, the corporation should not thereby l)e dissolved, but that it should be lawful on any other day to hold and make such elections in such manner as may be prescribed by a by-law of the corpo- ration. Charter, sec. 9, p. 7 herein. This section was subse- quently amended, however, by the acts of Tenn. 1857-58, ch. 8, so that the stockholders could at any meeting fix on the day and place where subsequent meetings of stockholders and election of directors shall be held. Acts Tenn. 1857-58, ch. 8. General and annual meetings; by-laws as to. in pursuance of the charter provisions, the railway company has passed the following by-laws as to stockholders' meetings: 1. Time and place Of holding. A general meeting of the stockholders shall take place annually, on the first Wednesday 916 STOCKHOLDERS, ETC. after the second Tuesday of September, in the city of Nash- ville, at which an election for fifteen directors of the company shall -be held. Notice shall be given by publication in one or more of the newspapers of the state, as may be ordered by the board of directors. 2. Adjourned meeting. Should the time fixed for the an- uual election of directors pass without an election being effected, the same may be held on such subsequent day as may be designated by the board of directors, or by the stockholders at a general meeting, notice of which election shall be given in the manner aforesaid. 3. Officers bold till successors elected. in all cases the directors for the time being, and the officers elected by them, shall continue in office until their successors shall be elected. 4. Quorum. The presence, in person or by proxy, of those who are the owners of a majority of the stock of the company shall be necessary to constitute a legal meeting of the stock- holders, authorized to transact business. See p. 646 herein. Special meetings ; who may call and for what purpose. The charter provides that the board of directors shall have power to call a general meeting of the stockholders when they may deem it expedient. Charter, sec. 18, p. 11 herein. There is no by-law of the company providing for the call of special meetings of stockholders. The call of regular meetings is provided for, but not special. This being so, the board of directors alone have power to call special meetings. This can be changed, however, by subsequent by-laws, should it be deemed advisable. The by-laws, however, provide for special meetings of the directors. See p. 647 herein. Notices of special and regular meetings. Notice should always be given to each stockholder of all special meetings, in order to make them legal. As to regular stated meetings, fixed by the charter or by-laws, it is generally different. As to them, no notice need be given, unless specifically required by statute or by-law, for members are bound to take notice of them. 22 N. Y., 128; 35 Ohio St., 10; 11 Vt., 385; Elliott GENERAL POWERS OF THE N., C. A ST. L. RY. 917 on R. R., sec. 164; Thompson on Corp., sec. 708; 53 Am. Dec., 450; 8 Fed. Rep., 66; 11 Pick. (Tenn.), 484, 485. The by-laws, however, of the Nashville, Chattanooga & St. Louis Railway require that notice of general meetings of stock- holders shall be given by publication in one or more of the newspapers of the state, as may be ordered by the board of directors. No extra notice need be given of adjourned meet- ings however. Thomp. on Corp., sec. 720. Length of time notice must be given for regular and special meetings. The by-laws provide that notice of general meet- ings shall be given by publication in one or more of the news- papers of the state, as may be ordered by the board of directors, but specifies no length of time. Reasonable time should be allowed, however, so as to enable all the stockholders to receive the notice and reach the place of meeting in ample time therefor. The word general meeting in the above by- laws is intended for regular meeting. In addition to the above by-law upon the subject the statutes of Tennessee, Alabama, Georgia, and Kentucky require that specified lengths of time shall be allowed for notices for par- ticular purposes, even though the business is to be transacted at a regular meeting. Thus to mortgage, sell, or purchase a railway in Tennessee the law requires that sixty dasy' notice be given in a Memphis, Knoxville, and Nashville daily news- paper of the time, place, and purpose of the meeting, whether regular or called meeting. The laws of Alabama, Georgia, and Kentucky have also provisions regulating mortgages, sales, leases, purchases, etc. , of railways in those states, all of which is set out herein under their particular heading. For length of notice, therefore, in each particular instance, see dis- cussion under its particular heading herein. As to special meetings, the length of notice is generally fixed by statute where the meeting is for some purpose other than the transaction of its ordinary affairs, as, for instance, the mortgage or purchase of a road. The length of notice in all such cases can be found in the discussion of the particular heading. If the special meeting is to transact ordinary busi- ness, then reasonable notice alone is sufficient. 918 STOCKHOLDERS, ETC. When notice must state object of meeting. "if a partic- ular day in each year is appointed for the transaction of all busi- ness, a notice of the particular business to be done is not nec- essary [unless required by statute as, for instance, in the cases of sales, mortgages, etc., as heretofore pointed out]. It has been reasoned that where the statutory provisions in regard to annual meetings are general, such meetings are, ex m termini, for the transaction of all business incident to the corporate powers and interests. 36 Me., 78; 22 N. Y., 128. More- over, the notice of a special meeting, when it is held for the transaction of ordinary business, need not state the object of the meeting. But where the meeting is called for the purpose of transacting business of special importance, not within the general routine of corporate business, upon a day not expressly set apart for that particular transaction, unless the notice of the meeting stated the nature of such business, all acts done thereat will be voidable, if not absolutely void." Thompson on Corp., sec. 717. See 11 Pick. (Tenn.), 486, 487. Quorum; what number necessary. The by-laws of the company provide that ' ' the presence, in person or by proxy, of those who are the owners of a majority of the stock of the company shall be necessary to constitute a legal meeting of the stockholders authorized to transact business." (See p. 646 herein.) At stated annual meetings a majority of those present may act. Thompson on Corp., sec. 726; 92 Mo., 79; 11 Am. Rep., 253. See 11 Pick. (Tenn.), 485-487. Adjourned meetings. It is a well established principle of law that should the business of a regular or called meeting not be completed on the day set, the meeting may be adjourned to a subsequent day, and no new notice thereof need be sent to the members. 21 N. Y., 296; 11 Vt, 385; Thompson on Corp., sec. 720. It is always better, however, to renotify, as some authorities hold it is necessary. Meetings OUt Of State. It may be generally said that no corporation can hold a legal meeting of its stockholders out of the state of its creation, and that all votes and proceedings had thereat are void. Thompson on Corp., sec. 696. Directors, GENERAL POWERS OF THE N. , C. e en- titled to one vote for each share of stock owned by him.'' In the election of directors, therefore, as well as in all other elec- tions, each stockholder is now entitled to as many votes as he has shares of stock. This amendment was valid. See case of Roycm v. X., C. A St. L. Ry., decided, November 0, 1898, by the United States circuit court of appeals, sitting at Cincinnati, but which has not yet been reported. Qualifications of stockholders to vote at elections. Under the charter no. stockholder is allowed to vote in any general or other election who shall not have held in his own right the share on which he offers to vote at least three months previous to such election. Charter, sec. 19, p. 12 herein. 920 STOCKHOLDERS, ETC. A proper construction of this section would require that the stockholder should hold his stock continuously for the three months preceding the election in order to vote it. Stockholder not disqualified to vote because interested in SUbject-matter Of resolution or election. Directors and stock- holders stand upon different footing so far as their right to vote is concerned. The former cannot vote where they are person- ally interested in the result. They are trustees for the stock- holders and must act for them and not for themselves. They are comparatively few in number and expressly intrusted with the management of the corporate affairs. The stockholders, on the other hand, may be very numerous and run up into the millions. They may be of different nationalities, and scattered over the face of the earth. "An investigation, therefore, into their various personal interests would not only be difficult, but almost impossible, and great uncertainty would result if the validity of acts of the majority were made to depend upon such an investigation." It has therefore been held, says Mr. Mor- awetz, for reasons of convenience amounting to a practical ne- cessity, that shareholders in a corporation are not disqualified from voting at a general meeting by reason of their individual interests in the result of the vote. Morawetz on Corp. , 477. Of course, however, should the majority attempt to appro- priate the corporate funds, depart from the company's charter or perpetrate a fraud, the courts would not hesitate to interfere at the suit of any aggrieved stockholder. Morawetz on Corp. , sec. 477; 96 N. Y.,444; 35 Hun., 355; 18 Ohio St., 169; 40 Cal., 20; 13 Am. & Eng. R. R. Cas., 94, 107; 104 U. S., 450-60; 110 U. S., 209; Thompson on Corp.: 4481. Who may VOte. All the stockholders of a corporation, who rightfully appear as such upon the books of the company, and where the charter or amendments thereto allow one vote for each share, have an equal right, in proportion to the number of shares owned by them, to vote their shares ia all meetings of stockholders, both general and special, and, to a like extent, take part in the business of such meetings. This is so even though nothing has been paid in on their subscription. 3 Zabr. GENERAL POWERS OF THE N., C. A ST. L. RY. '_'! (N. J.), 66; 6 Wend., 509; 20 La. Ann., 489; 42 Conn., 560; Rorer on Railroads, p. 192. The charter of the Nashville, Chattanooga & St. Louis Rail- way originally provided for a scale of voting, but by acts of Tenn. 1868-9, ch. 2, sec. 4, it was amended so as to allow one vote for each share of stock. The amendment was accepted by company September 20, 1875, and held legal in the case of Rogers v. N., C. <& St. L. Ry. et als., decided November 9, 1898, by the United States circuit court of appeals, sitting at Cincinnati, but not yet reported. Same. Where shares are held by two or more persons jointly. "The general rule being that the right to vote fol- lows the legal title to the shares, it follows that, where the title to the shares is vested in two or more persons, jointly, there can be no vote cast in respect to them without the con- currence of all the joint owners." 149 Pa. St., 70; 24 Atl. Rep., 88; Thompson on Corp., sec. 3871. Same. Where stock pledged or mortgaged." The general rule is, as stated above, that the right to vote follows the legal title and this rule is believed to obtain in all cases where it has not been changed by a valid statute, by-law, or contract. Shares may be transferred for the purpose of securing a debt, but under a form of conveyance which operates to pass the legal title to the transferee, and to give him the right to have the shares registered in his name on the books of the corpora- tion, in which case the right to vote them will vest in him, pro- vided he has the transfer made on the books of the corporation; otherwise, the pledger or mortgagor would be entitled to vote, as the stock would appear in his name. The inspector of elections should look alone to whose name appears on the books in determining who has the right to vote the shares. If other parties claim the right to vote the shares they must enforce the right in a court of equity." Thompson on Corp., sees. 3872, 732. See, also, 12 Pick. (Tenn.), 253. Same. Where shares held by surviving partner. "A sur- viving partner has the right, while the partnership business re- mains unsettled, to vote the stock standing in the name of the 922 STOCKHOLDERS, ETC. firm, or which, though standing in the name of the deceased partner, it is shown actually to be firm property." Thomp- son on Corp., sec. 731; 16 Cal., 113. Same. Where Owner dead. " Where the owner of shares in a corporation dies without leaving a will, his administrator can vote the shares upon exhibiting his letters of administration, and this, too, without any formal transfer of the shares on the books of the corporation. Where he leaves a will, and the legal title to the shares is vested in an executor, the executor has the right to vote them on exhibiting an exemplified copy of his testamentary letters. If vested in two or more executors jointly, however, they all must concur or no vote can be cast." Thompson on Corp., sees. 3871, 731. Same. Where shares held by other corporations. Where the power is conceded, either by statute law or by judicial con- struction, to exist in one railway corporation to hold shares in another, the right to vote the same would also exist as an inci- dent of ownership. But in the absence of legislative author- ity, it is against public policy to allow one corporation to pur- chase a majority of the shares in another for the purpose of absorbing it, controlling it, and effecting an unlawful consoli- dation with it. Thompson on Corp., sec. 3873; 88 Ala., 630; S. C. 16 Am. St. Rep., 81; 7 South. Rep., 108; 50 Fed. Rep., 338. Under the general laws of the state of Tennessee it is pro- vided, however, that "any railroad company created by and existing under the laws of this state, and for any lessees of a railroad of such company, from time to time, to subscribe for or purchase the stock and bonds, or either, of any other railroad company or companies chartered by or of which the road or roads is or are authorized to extend into this state, when their roads shall be directly, or by means of intervening railroads connected with each other. Code Tenn. (M. & V.), 1262; (Shannon's) 1520. See also discussion of this subject under general heading "Stockholders right to vote." Same. Where shares are owned by corporation itself. ' ' It sometimes happens that a corporation acquires shares of its GENERAL POWERS OF THE X., C. A ST. L. RY. 923 own stock from defaulting shareholders by forfeiture or by sale to foreclose their lien upon them, but stock thus owned or held by the corporation cannot be voted at corporate elections, al- though it may be held by a trustee in pledge to secure a debt under a contract which allows him to vote it. " 37 Cal., 15; 5 Cow. (N. Y.), 426; 101 Mass., 398; 92 Mo., 635, cited by Thompson on Corp,, 734. Same. Where shares are held by receiver. The right of a receiver of stock to vote it is not questioned by any author- ities, and it has been held that the court appointing him may direct him how to 'vote it. Elliott on R. R., sec. 158; Cook on Stock and Stockholders, 612; 25 Abb. N. C. (N. Y.), 274, note. Same. Where shares are held by trustee. " If the stock is registered in the name of the holder as trustee, he may vote it, unless he be a trustee for the corporation itself, in which case the officers are chargeable with notice of the title he holds, and his holding is subject to the rule that stock owned by the corporation itself cannot be voted." Elliott on R. R., sec. 158; 6 Wend. (N. Y.), 509; 5 Cow. (N. Y.), 426; 101 Mass., 398; 37 Cal., 15; Thompson on Corp., sec. 731. If he holds the stock as trustee the company should not transfer the shares for him, however, without requiring him to show his authority to sell under the trust. [See "Capital Stock" subhead, "How Transferred," pp. 670, 672, herein]. Same. Where shares are in name of partners. Either partner may vote the shares held by the firm. Same. Where shares in name of "A. B., Cashier." "Stock standing on the corporate books in the name of A. B., with the addition of "Cashier" subjoined, cannot be voted on a proxy given by his successor in office." Thompson on Corp., 731; 19 Wend. (N. Y.), 135. Who elected. The person, or persons, receiving a majority of the votes cast is duly elected. If the persons receiving the ma- jority vote are incompetent to hold the office of directors, in such a case a majority vote defeats the election of the minority candidates, if cast against them, although such vote l>e cast for 924 STOCKHOLDERS, ETC. ineligible persons, and therefore has no affirmative effect to confer the office on those voted for. It is the majority or plu- rality of votes cast for a party that elects him, and not the in- competency of his opponent. Rorer on R. R;, p. 89; Thomp- son on Corp., sec. 781; 20 La. An., 489. When the president fails to call election, or old officers hold Over; COStS. It is provided by the general law that when the board or president and directors of any railroad company in- corporated by the laws of Tennessee, or any other officer of such company whose duty or power it may be by the terms of the charter or by-laws of said company to call the meeting of stockholders thereof, for the purpose of electing a board of directors, managers, or other officers of such company, shall fail to make such call in the time and manner necessary to have such election at regular time; or if any such board of directors, president, or other officer to be elected by the stock- holders of such company, or any portion of them, shall assume to hold or exercise their office as such beyond the regular time for which they were elected, then it shall be lawful for any one or more of the stockholders of said company to call a meeting of the stockholders therein, by giving notice for the length of time, and in the manner prescribed by the charter, of the object and place of such called meeting, and the stockholders assembled in pursuance of such call, by one or more stock- holders, shall be competent, upon the terms hereinafter pre- scribed, to elect a board of directors, managers, or other officers, as though they had been regularly called for the pur- pose by the officer or authority whose duty or power it was so to do. In all meetings herein provided for there shall be rep- resented, directly or by proxy, a majority of all the stock of the company which had been subscribed up to the day on which the regular term expired, for which the incumbent overholding board of president and directors were elected. All costs inci- dent to the calling of such stockholders shall be at the indi- vidual expense of the party or parties so calling and not chargeable to the company. Code Tenn. (M. & V.), 1238; acts Tenn. 1868-69, ch. 27, sec. 1; [Shannon's code, 1491]. GENERAL POWERS OF THE N., C. & ST. L. RY. 996 Two or more calls; place and time of meeting. In caw there should be more than one call for a stockholders' meeting, and different places should be designated for such meeting in the different calls, some house shall be selected for the meeting in the town or place where the principal office of the company is established, and, if such office is nowhere established, then some house in the town or place where the last like election was held; and the call designating the earliest period for the meeting, allowed by the requirements of the company charter as to notice, shall always control and prevail as to the time for such meeting. Code Tenn. (M. & V.), 1239; acts Tenn. 1868-9, ch. 27, sec. 2 [Shannon's code Tenn., 1492]. Stockholders may petition judge or chancellor. When a meeting of stockholders in any railroad company shall be called under these provisions, any one or more of the stockholders making such call may apply, either in open court or at cham- bers, to the judge of the circuit court wherein is situated the town or place designated for such stockholders' meeting, by petition duly sworn to and setting forth all material facts; and should there be, for the time, no such circuit judge, or should he, from absence or other cause, be unable to act, then, in like manner, to the chancellor of the district in which is the place designated for such meeting, and, after five days' notice, by the delivery of a copy of the petition tiled in the premises to the acting president, secretary, or treasurer of the company, or to any member of the overholding board. If the material allegations of such petition be not directly denied by answer of such overholding board of president and directors, duly sworn to, or if such judge or chancellor be satisfied of the fact that such directors or officers, or any portion of them, are holding over beyond the regular term for which they were elected, or that there has been failure to give the required notice, under the company's charter, for the stockholders 1 meeting to elect their successors at the regular time therefor, then it shall IHJ the duty of the said circuit judge or chancellor, conforming to the requirements as to the time and place of meeting provided for above, upon such application therefor, to ap)x>int, by order 926 STOCKHOLDERS, ETC. in writing, three competent judges to hold such stockholders' election, and cause them to be duly sworn to hold the same faithfully, impartially, and in accordance with law, at the time and place designated in their appointment. Code Tenn. (M. & V.), 1240; acts Tenn. 1868-9, ch. 27, sec. 3 [Shannon's code Tenn., 1493]. Order tO be recorded. The order of such judge or chancel- lor, together with the oath as taken by such election judges, shall be entered by the clerk upon the minute book of this court as an order of the court, in term or at chambers, as the case may be, and such entry shall be evidence on trial of all causes in this state as other records of the same court. Code Tenn. (M. & V.), 1241; [Shannon's code, 1494]. Election; hOW Conducted. The election shall be held at the time and place designated by the appointing judge or chancel- lor, and he shall also appoint, with such election, judges and clerks or other assistants he may deem necessary for properly holding or reporting such election. Code Tenn. (M. & V.), 1242; [Shannon's code, 1495]. Oaths. The clerks or other assistants so appointed shall be duly sworn to faithfully perform the duties as such; and the judge or chancellor shall, upon motion, make all necessary orders upon the acting secretary or other officer in charge of the books or stock subscriptions of such company, to file with the clerk of his court a true and correct list of all stockholders in the company, the number of shares owned by each, whether subscribed or transferred, and the respective dates of such sub- scription or transfer, which list shall be for the information of the judges of election in holding the same. Code Tenn. [M. & V.), 1243; [Shannon's code, 1496]. Election, how held; record of meeting. The election shall be held by the judges herein provided for, in the method and on the terms prescribed for like elections by the charter of the company, and if no method be so prescribed, then the election shall be by ballot, and the judges thereof shall make out an accurate list of all stockholders voting in such election, either directly or by proxy, and of all votes rejected by them, to- GENERAL POWERS OF THE N., C. A ST. L. RV. 927 gether with a correct statement of the results of such election, which list and statement of results shall le certified by the elec- tion judges to the clerk of the court, held l>y the judge or chan- cellor appointing them, and entered upon the minute look of his court for ins|>ection by any stockholder. Code Tenn. < M. & V.), 1244; acts Tenn., 1868-69, ch. 27, sec. 4; [Shannon's code, 1497]. Compensation of clerk; transcript is evidence. The clerk shall receive for such entry the compensation established by law for copying record matter. Attested transcript of such entry shall be evidence in all courts of this state, as the duly taken depositions of such election judges, but shall not be of the conclusive nature of other records of such court. Code Tenn. (M. & V.), 1245; [Shannon's code, 1498]. Certificates of election and qualification of officers-elect. The judges of the election shall issue certificates of election to the persons receiving the greatest number of votes cast, or the number required by the terms of the company's charter, as the case may be, and such certificate shall entitle the persons so certified as elected to immediately qualify as directors, man- agers or other officers accordingly as they were elected, and they shall be and continue such directors, managers, or officers of the company for which they may be elected for the period of time prescribed by such company's charter, reckoning the time from the day of their election, with all the rights and powers in full permitted by the charter of the company, and the privilege of enforcing such rights and powers in any man- ner allowed by the laws of this state. Code Tenn. (M. & V.), 1246; [Shannon's code, 1499]. May take charge of all papers, books, etc.; refusal to sur- render same; proceedings against overholding board. Any directors, managers, or officers elected hereunder may, upon their organization as required by their company charter, de- mand and receive of the overholding board of the president and directors or managers, and of any jwrson whomsoever, all books, papers, property, and effects U'longing to the company, and pro|)er to l>e possessed and controlled by the board of pres- 928 ident and directors, managers, or other officers, upon such de- mand and production of their certificates of election; if any person whomsoever, having possession thereof, shall refuse to deliver to the parties so demanding all such books, papers, property, and effects, then the parties so elected may file their petition, duly sworn to, setting forth such demand and refusal and other material facts, making the proper parties defendants, and praying for the necessary relief in the circuit court for the county, or chancery court of the district, wherein their elec- tion was made. Code, Tenn. (M. & V.), 1247; acts Tenn., 1868-9, ch. 27, sec. 5; [Shannon's code, 1500]. Petition and proceedings thereon. Upon the filing of such petition, if therein prayed for, or at any time thereafter, upon the motion of the petitioners, either in open court or at cham- bers and five days 1 notice to defendant, the judge or chancellor of the court in which the same may be filed shall, upon peti- tioners entering into bond with security for the proper in- demnity of defendants, in the amount and condition directed in his sound discretion, cause to be issued and properly directed all writs, used by either, or both, of such circuit or chancery courts, whether such writs be in the nature of writs of attach- ment, writs of replevin, writs of possession, or injunction, or of any other character which may be essential to right and justice in the premises; and to this end all necessary power and jurisdiction is hereby conferred upon such courts. Such courts may also appoint receivers. Code Tenn. (M. & V.), 1248; [Shannon's code, 1502]. Proceedings according to course of chancery court. Copy of petition, with subpoena to answer, shall be served upon the defendants, and the cause, excepting so far as differently pro- videded for herein, be carried on in due course, as required by the rules of practice governing other suits of an equitable nature in the court to which the same may be brought. Code Tenn. (M. & V.), 1249; see, also, 9 Bax., 522; [Shannon's code, 1503]. Stockholder's right to inspect books. "A stockholder is entitled to inspect the corporate books at reasonable intervals GENERAL POWERS OF THE N., C. A ST. L. BY. 929 and times, either in person or by an expert or an agent, when be is too ignorant to do it himself intelligently. The directors cannot exclude a member from this right because his motives are hostile to the interests of the corporation, and he may enforce the right by mandamus/' Elliott on Railroads, sec. 172, citing 8 Bax. (Tenn.), 108; 53 Mo. App., 542; 113 Pa. St., 563; 33 N. Y. Supp., 244; 29 Mo. App., 326; 50 Barb. (N. Y.), 280; 105 Pa. St., Ill; 86 Ala., 467. 59 THE END. INDEX. ABANDONMENT. Right of company to abandon its right of way, 697, 696. As ground for forfeiture of charter, considered, 697. May abandon depots, stations, etc., when, 914. Right to remove rails, bridges, etc., when, 410 (note 1). Right to abandon part or whole of right of way, 411 (note 3). May change general ruute in Georgia, when, 887. May change either terminus in Tennessee, when, 887. As to changing line so as to side track town, 96 Ga., 385. As to right to change location in Kentucky, see 768 of Code, 1894. ACCEPT BILLS, NOTES. ETC. Power of N. C., & St L. Ry. to, 627. ACKNOWLEDGMENT. Form of in Tennessee, 628. Form of in Alabama, 628, 308. Form of in Georgia, 396-7. Form of in Kentucky, 628, 532. AGREEMENTS. (See also "Contracts.") Charter provisions 83 to, 8. Binding without seal, when, 628. Deeds must have seal attached, however, 629. ALABAMA GREAT SOUTHERN RAILROAD COMPANY. Lease from N. C., & St. L. Ry. of joint use of track between Wau- hatchie and Chattanooga, 550. Consideration, 550. Part of road leased. 550. Duration of lease, 550, 552. Conditions, 550-551. Employes to be under whose instructions, 552. Road to be kept up by whom, 552. Traffic facilities block system provided for, 552. (931) 932 INDEX. ALLEN'S CREEK BRANCH. How acquired by N. C., & St. L. Ry., 228 (note 2). Deed to, 245. Where registered, 228 (note 2). Width of right of way, 246. Map of, see map in front of book. Mortgage on. (See "Mortgages.") ALTER GAUGE. In Tennessee, power to, 629. BON AIR RAILWAY. (Extension of McMinnville Branch.) How acquired by N. C., & St. L. Ry., 199. Legality of purchase of, 199 (note). Deed to, 211. Where registered, 213 (note). What franchises, etc.. passed under sale, 199. Width of right of way, 199. Distance built when purchased, 200 (note). Original charter of (annotated), 200. General powers, 200, 201. Special provisions, 201. Express and implied powers, 202. Charter may be repealed or amended, 203. Right of way, how condemned, 203. May condemn 200 feet, 203. Land may be taken, how, 204. Statute of limitations as against damages for, 208. Transportation charges, 208. Tracks not to obstruct roads, streets and highways, 208. Crossings, sign-beards, 209. Regulations for running trains, 209. Prohibited contracts, 209. Freight from other roads must be received, 209. Where charter registered, 211 (note). Map of, see map in front of book. Mortgage on. (See "Mortgages.") BONDS. (See also "Mortgages.") In Tennessee. When and how bonds may be issued and subscribed for, 630. Power to issue by statute, 630 et seq., 633. To issue income and debenture bonds, 631. To issue for acquired lines, 631. How done under consolidated mortgage, 615, 612. INDEX. 1*33 To guarantee bonds of line acquired, 631. To guarantee bonds of other roads, 632. To guarantee bonds of terminal companies, 632 (note). To subscribe for bonds in other roads, 632. To sell bonds at discount, 633. To pledge it:; own bonds, 633. Bond dividends, p 633. Coupons, negotiable, 633. Interest runs on, when, 633. When barred, 633. Share pro rata in mortgage foreclosure, exceptions, 634. Under consolidated mortgage, G08. Rate of interest on bonds, 635. On consolidated bonds, 606. Counties, towns, etc., may subscribe for, in railroad, how, 635. In Alabama, may guarantee bonds of other roads, when, 847. In Georgia, 632. In Kentucky, 632. BORROW MONEY. Power of N. C., & St. L. Ry. to borrow money, 630. BRANCH ROADS. Definition of, 636. Power of this company to construct, 636. In Tennessee, may build branch roads, when, 636-7-8. What charters may be amended so as to authorize branch roads, 638. Power of others to construct branch roads to connect with this, 833. Power to build branch roads to unite with other rail- ways, G39. Power to builu side tracks and spur, 641. Power to build branch road from Huntingdon to certain railroads, 9S (note 2). In Alabama, branches may be built or lines extended, 639. Mode of making, purchasing or extending. 639. Supreme court decision on subject, 642. Power to build side and spur tracks, 641. In Georgia, branches and extensions may be built, 640. Power to build side and spur tracks, 641. In Kentucky, branches may be built, how, 641. May build switches, side and spur tracks, 641. 934 INDEX. BRIDGES. Power of N. 0., & St. I,. Ry. to build and repair, 642. Charter provisions on subject, 642. Main branch authorized to build, 642. Bridge at Bridgeport, how authorized and built, 643. Bridges authorized to be purchased, 642. Northwestern Branch authorized to build or purchase, 643. Bridge at Johnsonville. how authorized, 643. Right of company to temporarily obstruct water course in erecting and repairing, 643. (For bridges on other branches, see their charters). BY-LAWS. By whom to be enacted, 644. What by-laws are legal, 645. How enacted or amended, 645. Do not affect strangers, when. 17 Pick., 354. How differ from rules and regulations, 903. Present by-laws of company, 646 et seq. CAPITAL STOCK. (See also "Stockholders," "Directors.") Original amount of, 2. Present amount of, 4 (note), 667. Original value of shares, 2. Present value ot shares and how increased, 3 (note 1), 665, 669. How original stock subscribed, and by whom, 4. Special acts authorizing increase of capital, 665. How increased and to be increased, 665. Who to vote on, 668. What vote necessary, 668. At what meeting to be authorized, 668. Stock so increased may be sold at discount, 668. Preferred stock, how issued, 669. Guaranteed stoclr. how issued, 669. Stock dividends, 669. Shares, how to be transferred, 670. Lost certificate, how supplied, 670. By-law on subject, 648. Liability of company in regard to transfers, 671. Duty of company to investigate before transferring in certain cases and liability for failure, 672. Where shares in name of trustee, who to assign, 672. Where held in trust generally, 672. Where stock assigned by other than one to whom issued, 673. Where assigned by administrator, 673. INDEX. CAPITAL STOCK ConHn tied. Where assignment it, forged, or by void decree, 673. Where shares in name of partners, C73. Where shares in name of infant, 674. Who may vote stock, 919, 920. Qualification of stockholders to vote at elections, 919. Not disqualified because interested in subject-matter, 920. Where shares are held by two or more persons jointly, who to vote, 921. Where stock pledged or mortgaged, who to vote, 921. Where shares held by surviving partner, who to vote, 921. Where owner dead, who may vote, 922. Where shares held by other corporations, 922. Where shares are owned by company itself, 922. Where shares held by receiver, 923. Where held by trustee, 923. Where shares in name of partners, 923. Where in name of "A. B. Cashier," 923. Stock in other companies may be subscribed for, 674. In Tennessee, 674. In Alabama, 674, 889. In Georgia, 675. In Kentucky, 676. Reduction of capital stock, power to, 676. Entire capital stock may be owned by one person, 676. Stock exempt from taxation, 69S, 23. Stock personal property and subject to levy and sale, 676. Passes by transfer of certificate, 677. Counties and cities may subscribe for in railroads, when, 677. CATTLE GUARDS. (See "Stock Gaps.") CENTERVILLE BRANCH. (See "Nashville & Tuscaloosa Railroad.") CHARTER. (See index, generally, for charter desired, under name of branch.) When charter of N . C. & St. L. Railway granted, and status before the law. 677. How amended, G78. Legislature cannot force amendments upon it, 678. Amendments accepted and adopted are valid though not petitioned for, 679. Legislature may pass amendments and enabling acts enlarging powers, when, 679. 936 INDEX. CHARTER Continued. Such amendments and enabling acts, however, not protected as contracts, and can be repealed, 680. What are the present franchises of N., C. & St. L. Railway, 681. What is a franchise, 682. Different kinds of, 683. How alienated, 683. May alienate secondary franchise by statute in Tennessee, 684. May purchase franchises of other companies, 686. At judicial sales, 686 et seq. Purchasers may reorganize, 687. Exemptions from taxation do not pass, 687. By purchase, 688. As to completing and operating an unfinished purchased road, 885. Nonuser of franchise no forfeiture of, 688. Portions of franchise not vendible, 688. Property necessary to the exercise of the franchise not vendible, when, 689. Franchises in .charter of N., C. & St. L. Railway protected as con- tract, 689. Franchise to be a corporation, protected, 689. Franchise to buy and sell real and personal estate protected, 689. To contract, sue and be sued, make by-laws, etc., protected, 689. To operate its railroad between its termini, to the exclusion of all others within 20 miles of route, protected, 690. Exemption from compulsory amendments to charter protected, 691. Exclusive right of transportation over road, 691. Power to condemn property protected, 691. Operating warehouses for pay, protected, 692. Exemption from taxation of capital stock protected, 693. Implied rights, though not expressed in charter, protected, 693. Exemption of employes from road, military, and jury duty not protected, 693. Exemption from legislative control as to freight charges not protected, 693. Forfeiture of charter, grounds of, 695. Abandonment of right of way as grounds for, 697. Abandonment of depots and stations without, 914. CHATTANOOGA TERMINAL RAILWAY. How acquired, 448. Legality of lease, 448 (note 1). INDEX. 937 CHATTANOOGA TERMINAL RAILWAY Continual. Buffalo Iron Company extension, 448 (note 2). Distance road built when leased, 449. Width of right of way, 449. Lease contract, 451. Where registered, 454 (note). Original charter of (annotated), 449. Where charter registered, 450. General powers, 449. CITIES. Power to condemn railro.od property, for streets, alleys, etc., 760. Power to condemn crossings, 760. COLUMBIA BRANCH. (See Duck River Valley Narrow-Gauge Railroad.) CONNECTIONS. In Tennessee. Power of this company to connect with other roads, 699. Power of other roads to connect with it, 699. Condemnation for, 700. In Alabama, 700. In Georgia, 705. In Kentucky, 701. CONSOLIDATIONS. In Tennessee. Power of this company to consolidate with other roads, terms and conditions, 702. Agreement to be in writing, 702. Approval of stockholders, 702. Must first pay debt due state, if any, 702. Agreement to be recorded where, 702. Rights of creditors, 703. Powers of old companies go to new, 703. What powers, 703. Exemptions from taxation not to pass, 704. Consolidation of railways chartered under general laws, 704. Majority of stockholders must approve. 704. Roads must not compete or be parallel, 704. What roada may consolidate, 705. In Alabama, 705. In Georgia, 705. In Kentucky, 706. 938 INDEX. CONTRACTS. Charter provision on subject, 706. Contracts not to exceed what, 706. Binding without seal, 707. Void if beyond scope of power, 707. How corporate name signed to, 707. * May contract with other railroad companies for use of property and franchises or any part thereof, 708. May contract for lease and conditional sale of rolling stock, equip- ments, etc.', 70'J. Acknowledgments of contracts, 709. CORPORATE NAME. How changed, 709. How change can be made now, 709. Who to sign corporate name and how, 706. COUNTIES. Power to condemn crossings of railway, 760. CROSSINGS. In Tennessee. Power of N. C., & St L. Ry. to cross roads, water courses, etc., 710. As to "branches/ see their respective charters in index. How private and public crossings to be made, 711. Power of other railroads to cross this, 712. 'Railroads must erect and maintain crossings at public high- ways, 712. Punishment for failure, 712. Must grade and keep in repair crossings, how, 712a. Penalty for failure, 712a. As to enlarging bridges or crossings considered, 712a. Where railway fails to erect and keep in repair, 712a. Does not apply to turnpike crossings, 712a. Private crossings, 712b. Gates and fences at, 712b. Stock gaps at private crossings, 712c. Siock gaps or cattle guards on unfenced tracks, 712c. Applies to fields hereafter opened, 712c. Liable for all damages for failure, 712c. Power of cities and counties to condemn crossings over rail- road, 712d. When general statutes authorize such crossings, 712d. How counties must proceed, if at all, 713. INDEX. 939 CROSSINGS Continued. Notice to interested parties, who are, 713. Notice when landowners are nonresidents, 713. Jury of view in one district, 713. Damages, how paid, 714. Appeals. 714. Special act us to crossing in Nashville, 34 and note. In Alabama. Alabama grants \'., C. & St. L. Ry. powers of Tennessee char- ter, 714. Power of railroads to cross each other, 714, 783. As to crossing navigable streams, public roads, etc., 715. Cities and counties may cross railroads, how, 715. Stock gaps and cattle guards, 716. In Georgia. Georgia grants N., C. & St. L. Ry. certain franchises, 716. Power of railroads to cross each other, terms, 716. Crossings-, how and by whom kept up, 716. Cities and countios, rights of to cross railroads "With roads and streets, 717. As to Western & Atlantic Railroad, 717. Stock gaps and cattle guards, 717. Liability for failure, 718. Additional cattle guards required, when, 718. Does not affect existing laws, 719. In Kentucky. Power of railroads tc cross each other, 719. Power to cross highways, water courses, streets, railroads, etc., 719. Stock gaps and cattle guards, where to be erected, 720. Cities and counties, power of to open roads, streets, etc., across railroads, 720. DEMURRAGE. (See "Freight Charges.") When it may be charged in Tennessee, 721. In Georgia, 826 (note 4). In Kentucky, 828. DEPOTS. Power to abandon, tear down or remove, 914. In Alabama, 914. In Georgia, inoperative, when, 914. In Kentucky, inoperative, when, 914. Rules and regulations concerning, 899. Union depot at Nashville, 589. May keep hotel, restaurant and news stand at. 564. 940 INDEX. DIRECTORS. How elected, 721. Vote to be taken how, 722 (note.) By-law on subject, 647. Qualifications of, 724. Effect of disqualifications of, 726. Number of, 724. When elected, 722. Vacancies in board, how filled, 723. By-law on subject, 647. President pro tern., how elected, 723. Meetings of. President to preside at, 723. By-law on subject, 649. Regular, when held, 724. Notice of, what must be given and kind, 727, 728. Notice of adjourned meetings, 728. Special, when to be held, 725. Manner of assembling, 727. Notice of, 727, 728. Quorum, what constitutes, 725. In case of unfilled vacancies, 726. Majority of assembled quorum may act, 726. Effect of disqualification of member of quorum, 726. Without quorum, acts at voidable, 725. Directors must act together as a board, 725. Individual acts may be ratified by quorum, 725. May be held out of state, 728. Voting, cannot be by proxy, 728. By-law on subject, 646. Directors not exempt from military, road, and jury duty, 728. Duties of directors, 729. Powers of. May pass by-laws, rules, and regulations, 730. May fill vacancies in board, 730. May mortgage property, when, 730. Call general meetings of stockholders, when, 730. Declare dividends, 730. Elect president, permanent and pro tern., 731. Manage the affairs of company, 731. Allow lateral roads to be built in 20 miles of this, 731. To act as trustees in case of dissolution, 731. May borrow money, 731. Appoint judges and clerks of stockholders' election of direc- tors, 732. INDEX. 941 DIRECTORS Contin tied. Make and transfer negotiable paper, 732. Petition for amendment to charter, 732. Implied powers, 732 DISSOLUTION. Directors to be trustees in case of, 733. How company may be dissolved, b95. May exist after forfeiture or dissolution, for five years, for certain purposes, 733. What acts do not work dissolution, 734. Failure to elect directors does not, 734. Nor nonuser of franchise, 734. Generally, 734." May tear down or remove stations, without, when, 914. In case of dissolution company may remove rails, bridges, etc., from right of way, 410 (note 1). DIVIDENDS. When to be paid, 734. Charter provision on subject, 20. Misdemeanor to pay, when, 735. Stock dividends, 735. Bonds in lieu of cash dividends, 735. To whom dividends paid, 735. Guaranteed dividends, 736. Dividends wrongfully paid, 736. DUCK RIVER PHOSPHATE MINES BRANCH. (See "Swan Creek Branch.") DUCK RIVER VALLEY NARROW GAUGE RAILROAD (Columbia Branch.) How acquired by N., C. & St L. Ry., 250. Deed to, 258. Where registered, 263 (note). Legality of purchase, 251 (note). What franchises, etc., passed under sale, 251. Width of right of way. 251. Distance built when purchased, 253. Where incorporated, 253. Termini, 253. Original charter of (annotated), 254. Map of. see map in front of book. Mortgages on. (See "Mortgages.") 94:2 INDEX. EAST TENNESSEE, VIRGINIA & GEORGIA RAILWAY CO. Lease of joint use of tracks at Dalton, Ga., of W. & A. R. R., 548. Description of leased premises, 548. Duration of lease. 548. Consideration, 549. Track to be kept in order by whom, 549. Who to be liable for accidents or damages, 549. Arbitration provided for, 54t. Southern Railway Co. now owns E. T., V. & Ga. Ry. Co., 549. EMINENT DOMAIN. Power of N., C. & St. L. Ry. to condemn under its charter, 736. (For powei to condemn on various branches, refer to partic- ular branch in index). Character of title acquired, a fee, if condemnation had and paid for, 737 (note). To what branches does this apply, 738 (note 2). Approaches to road for certain purposes may be condemned, 737, 17 (note 2). Land for workshops, storehouses, materials, and houses for agents* cannot be, 738. How condemnation made now, 750. In absence of contract or condemnation right of way 200 feet, 738. This section valid, and landowner's possession not adverse, when, 739. Railway may take when necessary for railroad purposes, 739. To what branches does this apply, 740 (note 2). Necessity for taking, who to determine, 740. Effect where substantial house erected within 200 foot right of way, 741. Nature of railway's ownership of right of way, 742. Right to trees, herbage, gravel, etc., on right of way, 744. What damage to adjoining landowner included in condemning right of way, 745. Overflow for 20 years, gives right to, 745. Successive appropriations, 745. Power to take land for right of way, side tracks, depots, ap- proaches, etc., not exhausted, 745. To what branches does this apply, 749 (note). May condemn land to broaden right of way, for additional tracks, side tracks, etc., even in face of contract not to do so, 750. May condemn lands for lateral roads not exceeding eight miles, when, 752. May condemn land for lateral and branch roads fifteen miles in length, when, 752. INDEX. EMINENT DOMAIN Continued. The above power does not authorize consolidation or exemption from tax, 753. Where lateral road to extend from purchased branch, in whose name to condemn, 753. Where lateral road to extend from leased road, who to condemn, 754. May build branch roads to connect with other railroads and con- demn land therefor, 754. Power of, to condemn or appropriate county road or highway, 755. Power of other roacia to condemn right of way, depot facilities, yards, etc., of this. 756. Can future legislatures change this, so as to authorize it? 759. Power of cities to condemn railroad property for streets, etc., 760. Power of cities and counties to construct crossings of, 760. Power of railroads to condemn crossings of others, 761. Power of telephone and telegraph companies to condemn right of way over railroads, bridges, etc., 762. Not to obstruct railroad, 762. How condemnation made by, 763. Only nominal damages, when, 767. Railroads hereafter built not to take wider strip for right of way than necessary, 764. Other roads rights as to, when, 764. May condemn joint use of tracks in narrow passes, gorges, along cliffs, etc., of future roads, 765. This does not apply to N., C. & St. L. Ry. and possessions, 766 (note). How land may be condemned in Tennessee now, 766 et seq. Statute of limitations as to damages for, 773. In Alabama. Nature of railway's holding of right of way, 774. Easement acquired, 775. If condemnation had under charter of N., C. & St. L. Ry., and land paid for, the fee passes, 774. 737 (note). Trespassers may be ejected from right of way, 775. Width of right of way in absence of condemnation, 775. Adverse possession ot right of way, 775. Successive appropriations for right of way, 776. May condemn for branch roads, when, 639, 640. Power of other roads to condemn right of way. depots, yards, etc., of this, 776. Power of railroads to condemn connections and crossings with others. 776. Cities may authorize tracks built across or through streets, 776. Railroads in Alabama public highways, 776. Franchises forfeited by nonuser, 776. 944 INDEX. EMINENT DOMAIN Continued. Power of telegraph and telephone companies to erect lines along railroad right of way, 776, 783. How land condemned in Alabama, 777 et seq. Power of this company to condemn on purchased roads, 777 (note). In Georgia. Nature of railway's holding of right of way, 784. Easement only acquired, when, 784. Different if condemned under charter of N., C. & St. L. Ry., and land paid for, 784, 737 (note). Injunction will lie to prevent others from building on right of way, 784. Statute of limitations runs against right of way, when, 785. As to N., C. & St. L. Ry. main line, see 737 (note), 738. Misuser of franchise may work dissolution, 785 (note). Power of cities to open streets across tracks, depot grounds, etc., 785. Where street opened, railroad not prevented from laying additional tracks at crossings, 785. Successive appropriations for right of way, 786. Connecting switches with other roads may be condemned, 786. May condemn land for branch roads, 786. Power of other roads to condemn right of way of this, 786. To condemn joint use of tracks, terminal facilities, etc., of this, 787. Width of right of way of roads chartered under general act, 787. Right of eminent domain, 787. Privileges granted tc railways already incorporated, 788. Power of telegraph companies to occupy right of way of rail- roads, 789. Duties of as to, 789. Laws apply to Western & Atlantic Railroad, 789, 336 (note). Road laws also apply to, 789. How land condemned in Georgia, 790 et seq. Character of title acquired under, 796. General notes, 797. In Kentucky. Nature of railway's holding of right of way, 799. Easement only acquired, 799. Adverse possession of right of way, 800. Presumption on sale of right of way, 800. Condemnation cannot be limited by contract, 800. Constitution of Kentucky to be accepted before acquiring land, 801. INDEX. :4o EMINENT DOMAIN Cimtlnued. Powers of railways chartered under general acts to acquire right of way, lands, etc., 801. Width of right of way. 802. May take land for what, 802. Change gauge, 802. Change location, when, 802. Pqwer of other roads to cross this. 802. Map of route to be recorded, 803. Commissioners to be notified, when, 803. Power of telegraph companies to condemn right of way along railroad, 804. Successive appropriation, 804. May condemn for branches, switched, etc., 641. How land condemned in Kentucky, 804 et seq. EMPLOYES. As to exemption 1'rom road, jury, and military duty, see 22, and note thereunder. Rules and regulations as to, 902. FAYETTEVILLE BRANCH. (See Winchester & Alabama R. R.) FENCES. In Tennessee. Railroads must fence or be liable for stock killed, 808. Completely exonerated, if track lawfully fenced, and cattle guards erected, 808 (note 2). Fencing in cities and around depots, 808 (note 3). What are lawful fences, 809. Stock gaps or cattle guards at private crossings, 712c Gates and fences at private crossings, 712b. Cattle guards on unfenced tracks required, 810. Applies to fields hereafter opened, 811. Liability for failure, 811 (note). In Alabama. Railroads required to fence, when, 811. Liability for stock injured, 811. What are lawful fences, 812. Cattle guards must be repaired, when, 812. In Georgia. Duty of railroad as to fencing, 813. What are lawful fences, 813. 60 946 INDEX. FENCES Continued. Stock gaps on W. & A. Railroad, right of landowners to build, 815. In Kentucky. Railroad companies required to fence, 815. Fence to be constructed by railroad and landowner, 815. When one party builds, other may be required, how-, 816. Exemptions, 817. Cattle guards, where to be erected, 817. Landowner building entire fence may remove his part, when, 817. Law not applicable to owner receiving compensation, 818. When right of way given, company to erect entire fence, 818. Parties may agree concerning fences, 819. Fences between parallel railroads or turnpikes, 819. Stock gaps, when to be put in, 720. What are lawful fences, 818. FORFEITURE. (See "Charter," subhead "Forfeiture of.") Grounds of, 695. Abandonment of right of way as ground for, 697. May abandon stations, depots, etc., when, 914. May abandon whole or part of right of way, when, 411 (note 3). Right to remove rails, bridges, etc., in case of, 410 (note 1). FRANCHISE. (See "Charter.") FREIGHT CHARGES. In Tennessee. What rates may be charged, 819. What on branch roads, 820. Must receive freight cars of other companies and charge no more than on their own line, 820. Demurrage charges, 821. Railroads may hold freight for charges, 821. May refuse to receive unless charges paid, 821. One road cannot bind connecting as to unless by contract, 821. Rates where articles shipped are not as represented, 821. Receiving carrier is liable, when, 821. Goods may be sold for charges, 821. What notice required, 821 (note 1), 822. When notice excused, 821 (note 2). INDEX. 947 FREIGHT CH ARC ES Continued. Noiice to consignor of nonacceptance, 822 (note 3). Advertisement, 822. Disposition of proceeds, 822. Perishable goods may be sold sooner, 822. Discriminations in freight charges, when allowed, 823. May refuse to carry passengers, when, 823 (note 2). In Alabama. Discriminations unlawful. 823. Special rates to industrial enterprises allowed, when, 823. Rates to be posted at depot, 823. Extortion prohibited, 824 (note 1). Pooling unlawful, 824 (note 3). Railroad commission revise tariff of charges, 824 (note 4). Freight and passengers may be transported free, however, 824. Carrier has lien on goods for charges, 824. Goods may be sold for charges, 824-5. Perishable goods, when and how sold, 824. Other goods may be sold, when and how, 825. In Georgia. Charges must be reasonable, 825. Extortion prohibited, 825. Unjust discrimination, 826 (note 1). Railroad commission make charges, 826 (note 2). Storage charge?, 820 (note 3). Demurrage, 826 (note 4). Railroad has lieu on goods for freight charges, 826. Goods may be sold for charges, when, 827. Perisho ole goodt may also be sold, when, 827. Live stock may be sold for charges, when, 827. Deposit of proceeds, 827. In Kentucky. Rates must be just and reasonable, 828. Extortion prohibited, 828. Railroad commission supervises, 828 (note 3). Discrimination, what is, 828. Preference or advantage prohibited, 828. Long and short haul, 828. Demurrage, 828. Railroad has lien on goods for charges. 829. Goods may be snid for charges, when. 829. Perishable goods may also be, 829. Unclaimed, may be, how, 829. Baggage, may be, how, 829. 948 INDEX. GADSDEN BRANCH. (See "Tennessee & Coosa Railroad.") GAUGE. (See "Alter Gauge.") GEORGIA, CAROLINA & NORTHERN RAILWAY. Lease from N., C. & St. L. Ry. terminal facilities at Atlanta, 554. Contract for interchange of business, 554. HICKMAN & OBION RAILROAD. (Part of Northwestern Branch). How acquired by Nashville & Northwestern R. R. Co., 77. How acquired by N., C. & St. L. Ry, 77. Sale of road to Nashville & Northwestern R. R. Co. legal, 77 (note). Original charter of in Kentucky, 104 (note). Original charter of in Tennessee, 104 (note 4). General powers, 104. Exclusive transportation, freight charges, 105. Lands may be purchased for what, 106. Crossings of roads and water courses, 106. Right of way, how condemned, 106. Additional powers as to, 108. Intrusion, punished, 107. Obstruction a nuisance, 107. May establish warehouses and charge storage, 107. Crossings must be constructed by company, 108. Exemption from taxation, 108. May extend road to Dresden, when and how, 108. Map of road, see map in front of book. Mortgages on. (See "Mortgages.") HIWASSEE RAILROAD. Name changed to East Tennessee & Georgia R. R. Co., 64 (note 1). N. & C. R. R. Co. given all the rights, privileges and immunities of this company in Georgia, 61-2. Original charter of, 63. General powers, 63, 64. Right of way, width of, 68. How acquired, 68. Damages for, 68. Condemnation for, 69. Materials to keep in repair, how taken, 70. Through state lands, 71. Lands for warehouses, booths, reservoirs, etc., how ac- quired, 71. INDKX. 949 HIWASSEE RAILROAD Continued. Road crossings, 72. Private crossings, 72. Freight charges. 73. Exemption from taxation, 73. Transportation charges, 73. Connections with, authorized, 73. HUNTSVILLE AND ELORA RAILROAD. (Huntsvllle Branch.) How acquired by N., C. & St. L. Ry., 214. Legality of purchase of, 214 (note). Deed to, 224. Where registered, 224 (note). What franchises, etc., passed under sale, 214. Width of right of way, $14. Where incorporated, 215. Distance built when purchased, 215. Original charter of, 215-224. General powers, 215, 216. Exclusive transportation, rate of charge, 217. Real property may be purchased for what, 219. Crossing roads and water courses, 219. Right of way, how condemned, 219. Same as N., C. &, St. L. Ry., 221 (note). In absence of contract 200 feet, 221. Character of title acquired, see 24, 25 of charter of N. C. & St. L. Ry., 15, 17. Obstructing or damaging road, bridges, etc., punishment, 221. Obstruction a public nuisance, 222. Storage may be charged, 222. Crossings of roads and lands, 223. Charter, how n mended, 223. May dispose of road, franchises, etc., 223. N.. C. & St. L. Ry. a& purchaser of, may do likewise, 910. Effect of purchase in rendering N., C. & St. L. Ry. a domestic cor- poration in Alabama, 843. Acts of Alabama relating to. Rights and privileges granted through Madison county, 226. Map of, see map in front of book. Mortgages on. (See "Mortgages.") INMAN BRANCH. How acquired, 269. Legality of purchase of, 269 (note). Deed to. 270. Where registered, 269. 950 INDEX. INMAN BRANCH Continued. When Tennessee Coal, Iron & Railway Co. chartered, 269 (note). Map of, see map in front of book. Mortgages on. (See "Mortgages.") JASPER BRANCH. How acquired, 264. Width of right of way, 265. State aid for, 266. (note 3), 274. Road from state line to Jasper authorized by Tennessee, how, 274. Road from Bridgeport to state line authorized by Alabama, how, 275. When completed. (See map in front of book). Map of, see map in front of book. Mortgages on. (See '"Mortgages.") LATERAL ROADS. (See "Branch Roads.' ) LEASE. In Tennessee. Power of N., C. & St. L. Ry to lease other roads, 830. By-law on subject, 648. Charter provision on subject, 830. Amendment to charter on subject, 831. Validity of amendment, 831 (note 1). General laws conferring power, 833 et seq. Who to authorize lease, directors or stockholders, 836. What vote necessary, 838. What notice necessary, 838. Power to lease its own road, or part thereof, to others, 839. Who to authorize, 841. Vote necessary, 841. May lease part of line, 849 (note 2). Power to lease its purchased or leased roads, 842. Rolling stock, power to lease, 843. Both roads must have power, the one to lease, the other to accept, 489 (note 1). In Alabama. Power of N., C. & St. L. Ry. to lease other roads in Alabama, 843. To lease its own road to others, 843. Power as to its main line, 844. INDEX. 951 LEASE Continued. Power as to its purchased roads, 845. 847 (note). Power to sub-lease leased roads, 845. General laws conferring power in Alabama, 846. Both roads must have power, 489 (note 1). May lease part of line, 849 (note 2). In Georgia. Power of X.. C. & St. L. Ry. to lease other roads in Georgia, 847. Power to lease its own road to others, 847. As to its main line, 848. As to its purchased or leased roads, 849. Both roads must have power, 849 (note 1). May lease a part of line, 849 (note 2). Rolling stock, contracts for lease of, 897. Railroads chartered under general laws may lease their own lines, 850. May lease other roads, 850, 851. Lease subject to burdens of lessor corporation, 852. Corporation liable notwithstanding sale or lease, 852. Foreign corporations, how recognized in Georgia, 852. What powers they may not exercise, 853. Penalty, 853 Ownership of lands by, 853. Charter of, how far binding in Georgia, 854. Railroads using same terminal tracks, 855. Common powers of corporations under Georgia law, 855. In Kentucky. Power of N., C. & St. L. Ry. to lease other roads in Kentucky, 856. Power to lease its own road to others, 856. As to its main line, 857. As to its purchased roads. 858. As to sub-leasing its leased roads, 859. May lease part of line, 858 (note 1). Both roads must have power. 858 (note 2). Lease must be registered where. 858 (note 3). Lease of franchise.- does not affect existing liabilities, 859. Foreign corporations, subject to laws relating to domestic. 859. Denied right to hold real estate until it becomes domestic, 859. Must be incorporated in Kentucky. 860. Must accept constitution of Kentucky. 860, 861. Law complied with by N.. C. & St. L. Ry. In leasing P. T. & A. Ry.. 861 (note). 952 INDEX. LEASE Continued. What roads have been leased by N.. C. & St. L. Ry. Western & Atlantic R. R., 335. Chattanooga Terminal R. R., 448. L. & N. Terminal R. R., 557. Tennessee Midland R. R., 455. Paducah, Tennessee & Alabama R. R., 487. LEBANON BRANCH. (See "Tennessee & Pacific Railroad.") LOUISVILLE & NASHVILLE RAILROAD COMPANY. Lease by it of tracks from its old depot to Decatur depot in Nash- ville, 533. Modification agreement as to original lease, 538. Lease to L. & N. Terminal Co. referred to, 539. Lease of L. & N. R. R. Co. to Terminal Co. also referred to, 540. Former lease suspended in part, 540. Provision for revival, 540. LOUISVILLE & NASHVILLE TERMINAL COMPANY. Property of, how acquired, 557. New depot now being built by, 559 (note). Mortgage executed by Terminal Company, 559. Original charter of (annotated), 559. Validity of charter, 559. General powers of, 559, 560. Special provisions, 560. Express and implied powers, 561. Charter may be repealed or amended, 561. May borrow money and issue bonds, 562, 564. May mortgage its property, 562, 564. May condemn land, 562. May acquire land, how, 562. May lease to others, 562. Land may be taken by, how, 563. May construct tracks or depots, across, under or over streets and alleys, how, 563. May keep hotel, restaurant, and news stand where, 564. May lease its property to railroads, 564. Such railroad companies may guarantee bonds or contracts of Terminal Company, when, 564. Each may subscribe, hold, and dispose of stock or bonds In the other, 564. Where charter registered, 565 (note). INDEX. 953 LOUISVILLE & NASHVILLE TERMINAL CO. Continued. Lease contract for property of, 566. Description of real estate leased. 566 et seq. Depot buildings, tracks, etc., 578. Embraces property conveyed to It by N., C. & St. L. Ry., 578. Property between Church and Cedar streets, 579. Property between Church and Broad streets, 580. Property between Broad and Spruce streets, 580. Rights of way, tracks, etc., pass, 582. Depot buildingc, easements, etc., pass, 583. Expiration of lease, 583. Embraces property conveyed to it by L. & N. R. R. Co., 583. Right of way, tracks, etc., pass., 585. Guarantee of peaceable possession, 585, 586. Original lease of the two roads to Terminal Company unimpaired by this lease, 586. Agreement to renew lease for 999 years, how, 587. To execute additional papers, etc., to perfect title, when, 587. Terminal Company to construct new depot, tracks, terminal facil- ities, etc., 589. To keep insured depot, buildings, etc., 589. To pay taxes, assessments, etc., on leased property, 590. To re-enter and lake possession on default of railways, 594. Rent amount and how paid, 590. Railroad companies agree to pay rent and keep covenants, 591. To hold Terminal Company harmless, 591. To keep premises in repair, when and how, 592, 593. Terminal Company may enter on premises and notify railway of want of repair, 593. Covenant to surrender at expiration of lease, 594. Lease where registered, 595 (note). MANNIE BRANCH. (See "Nashville & luscaloosa R. R.;" ''Allen's Creek Branch.") MAP OF ROAD. (See in front of book, p. .) McMINNVILLE BRANCH. (See "McMlnnville and Manchester Railroad," "Southwestern Railroad," and "Bon Air Railroad." They now form what is known as the "McMinnville Branch.") McMINNVILLE & MANCHESTER RAILROAD. (Part of McMinnville Branch.) How acquired. 166. 954 INDEX. McMINNVlLLE & MANCHESTER RAILROAD Continued. Legality of purchase, 1C8 (note). Deed to, 158. Where registered, 161 (note). Decree vesting title to Memphis & Charleston R. R. Co., 183. Where registered, 184. What franchises, etc., passed under sale, 169. Width of right of way, 169. Termini of, 170. Distance built when purchased, 170. Original charter of (annotated), 170. General powers of, 170, 171. Exclusive transportation on, 176. Rate of freight charges, 176. Real property may be purchased under for what, 177. Crossing and taking roads, water courses, and turnpikes, 177. Purchase of bridges, roads, etc., 178. Right of way, how condemned, 178. Same as N., C. & St. L. Ry., see 15, 17. Character of title acquired, also same. In absence of contract 200 feet, when, 179. Penalty for intrusion on. 180. Obstruction public nuisance, 181. Obstructing or damaging road, bridges, etc., punishment for, 181. Storage may be charged, 181. Crossing of roads and lands, 182. Exemption from taxation, 183. Acts amending charter of, and relating to road. Rights, powers, and privileges of N. & C. R. R. Co. conferred on it, 184. Capital increased, 184. Scale of voting provided, 184. Route located, 184. Authorized to extend to Sparta, how, 184. Any stockholder allowed to be director, 187. Town of McMinnville authorized to subscribe for stock in, 187. Purchasers at state's sale of road, authorized to be credited with any amount recovered by United States against it for iron rails, etc., furnished, 188. Claims between state and United States in regard to this road authorized to be settled, how, 188. B. J. Hill, president and receiver of road, authorized to be set- tled With, 189. State aid to, 189. Internal improvement acts, 45. Sale of road authorized to be postponed, 190. INDEX. 955 McMINNVILLE & MANCHESTER RAILROAD Continued. Map of, see map in front of honk. Mortgages on. (See "Mortgages.") MEETINGS. (See "Directors," subhead "Meetings:" see also "Stockholders," subhead "Meetings.") MEMPHIS BRANCH. (See "Tennessee Midland Railway.") MEMPHIS BRANCH R. R. & STEAMBOAT CO. OF GEORGIA. (See "Rome Railroad.") MEMPHIS & CHARLESTON RAILROAD COMPANY. Lease of joint use of track from Stevenson, Ala., to Chattanooga, from N., C. & St. L. Ry., 543. Act authorizing same, 32. Consideration, 543. Duration of lease. 543. Conditions, 544. Connecting track in Chattanooga to be kept clear, 544. Employes to be under whose order, 545. Terminal facilities provided for, 545. Local business between Stevenson & Chattanooga, 545. Suits for damages on line of road provided for, 546. Fees for through mail, when, 546. Agents of N., C. & St. L. Ry. to act for, when, 546. Telegraph wires provided for, 546. Contract to leise transferable, 546. Since acquired by Southern Railway Co., 543 (note). Arbitrators provided for, 547. Lease, duration of. and how terminated, 547. Old lease abrogated, 547. MIDDLE TENNESSEE & ALABAMA RAILWAY CO. How acquired, 40*>. Legality of purchase. 409 (note 3). Sale carried bonds, 409 (note 1). What franchises passed under sale, 410. Distance built when purchased. 410. Right to remove rails on part of road not In use, 410 (note 1). Right of N., C. & St. L. Ry. to abandon whole or any part of right of way, 411 (note 3). 956 INDEX. MIDDLE TENNESSEE & ALABAMA RY. CO. Continued, Width of right of way. 411. Statute of limitations as against, 412 (note 2). Deed to, 435. Where registered. 443. Original charter or (in Tennessee) (annotated), 413. General powers under, 413, 414. Express and implied powers, 415. Charter may be repealed or amended, 415. Condemnation of right of way, 416. Land may be taken, how, 416 et seq. Statute of limitations as to damages for right of way, 421. Transportation charges, 421. Gauge, 421. Construction of tracks on highways, how, 421. Crossings, signboards, etc., 421. Regulation for running trains, 422. Prohibited contracts, 422. Freight from other roads must be received, 422. Charter where registered, 424 (note). Original charter of (in Alabama) (annotated), 425. General powers of, 425 (notes). May cross navigable streams, 426 (note). May use, cross or change public roads, 426 (note). Consolidate, 426. May purchase, aid or lease other roads, 427. Branch road may be constructed or line extended, 427. Mode of making purchase or extension or constructing branch roads, 427. Increasing bonded indebtedness, 427. May sell property, when, 427. Railroads chartered in other states may aid, 427. Franchises forfeited by nonuser for five consecutive years, 427. Decree confirming sale to Joseph Dickson, 443. Where deed to Joseph Dickson registered, 447 (note). Effect of purchase of Alabama part in rendering N., C. & St. L. Ry. a domestic corporation there, 843. Map of, see map in front of book. Mortgages on. (See "Mortgages.") MILEAGE OF ROAD. (See map in front of book.) MORTGAGES. Consolidated, to secure an issue of $20,000,000 five per cent, gold coupon bonds, on entire system, 596. INDKX. MORTGAGES Continued. Underlying bonds to be taken up, 602, 613, 614. After acquired property subject to this mortgage, 602, 610, 618. Stockholders authorize the issue, 603. Directors authorize the i3sue, 606. Form of bond secured, 606. Property transferred to secure, 608 et seq. Bonds to be issued, how and for what, restrictions, 612 et seq. Underlying bonds, how exchanged for these, 813. Amount of bonds to be issued for improvements. 614. For purchase cf additional railroads and extensions, 615. Railway to retain possession of property until default, 616. Trustee to release mortgage on certain property, etc., when, 617. Taxes, who to pay, 617. Railway to execute additional title papers, when, 617. On default, trustee to take charge and operate, how, 618. Mortgage to be foreclosed, when, 619. All bonds fall due on default, when, 619. Bondholders may purchase at sale, 621. In case of foreclosure, railway waives certain rights, 622. Mortgage becomes void and lien released, when, 622. Majority bondholders, rights of: trustee, 622. Trustee may resign or be removed, how, 623. Where mortgage registered, 625 (note 1). Western & Atlantic mortgage to secure income bonds, 625 (note 3). Underlying bonds and mortgages on branches. Sparta, Fayetteville & Huntsville branch, 598. Tracy City branch, 598. Jasper, Inman \ Sequatchie branch, 598. Lebanon branch, 599. Centreville branch, 600. Bon Air branch, 600. Duck River, Valley, or Columbia branch, 600. Shelbyville branch, 601. Total underlying bonds on branches, 601-2. Power of N., C. & St. L. Ry. to mortgage its property, generally, 862. In Tennessee. What power exists under its charter, 863. Under the general law, 863-4-5. Mortgage not to affect certain judgments, etc.. 865,. Who to authorize, directors or stockholders, 865. Vote necessary, 865. After acquired property may be mortgaged, 866. 958 INDEX. MORTGAGES Confuted. Future earnings may be mortgaged, 866. Leased roads may be mortgaged, 867. Rolling stock and personal property may be, 867. Part of road, instead of whole, may be, 867. In Alabama. Power to mortgage its road in Alabama, 868. As to its main line, 868. Decisions on subject, 869. Purchased roads of Alabama may be mortgaged, 869. Leased roads in Alabama may be, 870. Rolling stock may be, 870. In Georgia. Power to mortgage its road in Georgia, 870. As to its main line, 871. After acquired property may be, 872, 874 (note 2). Part of road, as well as whole, may be, 872 (note 2). Purchased or leased roads may be, 872. Railroads chartered under general law, may, 873. In Kentucky. Power to mortgage its purchased or leased roads in Ken- tucky, 874. Mortgages not opposed to public policy, 875. Railroads chartered under general acts Kentucky, may, 875. NASHVILLE, CHATTANOOGA, & ST. LOUIS RAILWAY. (Main line.) Chartered originally as the Nashville & Chattanooga Railroad Com- pany, 1. Name, how and when changed, 1 (note), 25. Charter of (annotated), 1. General powers under, 1, 2 (note 3). (See Index, generally, for particular power desired.) Capital stock, amount of, originally, 2. Capital stock, present amount of, 4 (note), 667. (See "Capital Stock," herein, 667 et seq., for full discussion of, and who to vote it, transfer it, etc.) Shares original value of, 2. Present value cf shares, and how increased, 3 (note 1), 665, 669. Subscription to original stock, who made by, 4. Incorporation perfected, when, 4, 5. President and directors, how chosen, 6, 721, 876. Directors, number of, 6, 724. Vacancy in board, how filled, 8, 723. Contracts and agreements binding without seal, 8, 707. INDEX. 959 NASHVILLE, CHATTANOOGA & ST. LOUIS RY. Continued, Liability of directors, 8, 729. Lateral roads within twenty miles of this prohibited, 9, 690. Transportation, rate of charge, 9, 691. Exclusive transportation, 9, 691. Stock, how trantferred, 10, 670. Capital stock increased, and to be, how, 11, 665. Directors may call general meeting, 11, 916. Annual report, 11. Qualification of officers and voters, 12, 919. Scale and method of voting, 12, 919. Real property may be purchased for jvhat, 13, 878. Crossing and taking roads, water courses and turnpikes, 13. Bridge over Tennessee river at Bridgeport, how authorized, 14 (note). Bridges, roads, etc.. authorized to be purchased, 14. Right of way, how condemned, 15. Character of title acquired, 16 (note 1). For what may be taken, 17 (note 2), 878. May make successive appropriations. 17 (note 3), 745. How condemnation to be made now, 17 (note 4). In absence of contract, 200 feet, when, 17, 18 (note). Penalty for intrusion on, or damaging, 18, 19. Obstructing a public nuisance. 19. See also general heading, "Right of Way," in this index. Storage charges allowed, when, 20. Dividends paid, when, 20, 734 et seq. Banking prohibited, may insure, 21. Crossings of roads and lands, 21, 710 et seq. Additional powers, 21, 627 et seq. Charter, how amended, 21. 678 et seq. Charter irrevocable, 22, 678. Military, jury and road duty, exemptions* of employes from, 22, 693. Dissolution, directors trustees in case of, 22, 733. Taxation, exemption from, 23, 693. Branches, who may build, duty of this road as to, 23, 636 et seq. Status of charter before the law, 677. Amendments to Charter (generally). How amendments to be made, 678. Legislature cannot force, 678. Accepted and adopted, are valid though not petitioned for, 679. Legislature may pass enabling acts enlarging powers, when, 679. Such enabling acts not protected as contracts, and can be repealed, 680. 960 INDEX. NASHVILLE, CHATTANOOGA & ST. LOUIS RY. Continued. Amendments to Charter (legislative). Stockholders allowed one vote for each share, 28. Stockholders at any meeting may fix time and place of next meeting, 28. Directors to make by-laws, 28. Directors to appoint judges and clerks of elections, 28. Dividends to be paid how, 28, 734. City of Charleston, and Georgia Railroad and Banking Co. allowed representative in board of directors, 29. Lease of Winchester & Alabama Railroad authorized, 30. Lease of auy other road connecting with it authorized, 30. Discussion of last amendment, 831 (note). Amendments to Charter (Chancery Court).) Decree changing name to N., C. & St. L. Ry., 25. Validity of this change, 1 (note 1). Decree making other amendments, 50-55. Validity of these amendments, 27 (note), 695. Franchises of the N.. C. & St. L. Ry., what they now are, 681. What is a franchise, 682. Kinds of. 683. How alienated, 683. Secondary franchises in Tennessee may be alienated by stat- ute, 684. Property necessary to the exercise of the franchise not gen- erally vendible, when, 689, 688. Nonuser of franchise no forfeiture of, 688. What franchises in charter protected as contract. That of being a corporation protected, 689. To buy and sell real and personal estate protected, 689. To contract, sue. make by-laws, etc., protected, 689. To operate its railroad between its termini, to the exclu- sion of all others within twenty miles, protected, 690. Exemption from compulsory amendments to charter, 691. Exclusive right of transportation over road, 691. Power to condemn property, 691. Operating warehouses for pay, 692. Exemption of capital stock from taxation, 693. Implied rights, though not expressed in charter, protected, 693. Exemption of employes from road, military and jury duty not protected, 693. Exemption from legislative control as to freight charges, not protected. 693. . May purchase franchises of other companies, 686, 878 et seq. At judicial sale, 686 et seq. Purchasers may reorganize, 687. INDEX. 961 NASHVILLE, CHATTANOOGA & ST. LOUIS RY. Continued. Exemptions from taxation do not pass at. 687. By purchase, 688. See "Purchase," herein, p. 878 et seq. Forfeiture of charter, grounds of, 695. Abandonment of right of way as ground for, 697. Abandonment of uc-pots and stations does not. when, 914. Alabama Acts and Resolutions Relating to. Right of way granted through Jackson county with rights and privileges of Tennessee charter, 55, 59. Taxes to be assessed in Alabama, how, 55, 59. Resolution in regard to right of way through Jackson county, 56. Bridge over Tennessee river allowed to be constructed, how, 57. Jasper Branch from Bridgeport to state line authorized to be constructed how, 57. Ponds along right of way to be drained, 58. Right of way for Huntsville & Elora Railroad, 59. Right of way granted through Madison, Marshall and Etowah counties, how, 60. Georgia Acts ana Resolutions Relating to. Right of way granted through Dade county, how, 61. Charter of Hivrassee Railroad Co., 63. Stevenson, Sand Mountain & Dalton Railroad allowed to con- nect, 74. Service of process on, how to be perfected, 74. N., C. & St. L. Ry. granted all the rights of Hiwassee Rail- road Co., in Georgia. 61-2. Tennessee Acts and Resolutions Relating to. Stock in Chattanooga, Harrison, Georgetown & Charlotte Rail- road Co., allowed to be subscribed for, 31. Bridge over Tennessee river allowed to be built, how, 31. Memphis & Charleston Railroad Co. allowed to be contracted with for joint use of road between Stevenson and Chatta- nooga, how, 32 Lease contract for same, 543. Shelbyville Branch granted rights and privileges of main line, 33. Watchman at Church street crossing, in Nashville, required, 34. Nashville & Northwestern Railroad, authority to lease, 34. Alabama & Chattanooga Railroad Co., allowed to cross tracks of. how, 40. Towns of Nashville, Murfreesboro. Shelbyville and Winchester authorized to subscribe for stock in, how, 40. Amount they subsequently subscribed, 42 (note). Section 33 of charter construed by act, and authority given in this instance to mortgage road. 42. Validity of above act construing charter. 43 (note). 61 962 INDEX. NASHVILLE, CHATTANOOGA & ST. LOUIS BY. Continued. State aid to, 43. Internal improvement acts, 45. Resolution asking Georgia for right of way for, 45. Resolution asking Alabama for right of way for, 46. Resolution allowing petition of W. G. Harding, D. H. McGav- ock, and Lucy McKelvey to be filed for damages for right of way on Northwestern division, 47. Resolution authorizing suit against, for state's interest as stockholder in Nashville, Murfreesboro & Shelbyville Turn- pike, 49. Resolution in reference to claim of exemption from taxation on Northwestern division, 49. Lease to L. & N. R. R. Co., of tracks from old depot of latter com- , pany, to Decatur depot in Nashville, 533. Modification agteement as to original lease, 538. Lease to L. & N. Terminal Co., referred to, 539, 540. Former lease suspended in part, 540. Provision for revival, 540. Lease to Alabama Great Southern Railroad Co. of joint use of tracks between Wauhatcie and Chattanooga, 550. Lease to Memphis & Charleston Railroad Co., of joint use of tracks from Stevenson, Ala., to Chattanooga, Tenn., 543, 32. Lessee road now owned by Southern Railway Co., 543 (note). Lease to East Tennessee, Virginia & Georgia, and Georgia Ry. Co., of joint use of tracks of W. & A. Railroad, at Dalton, Ga_, 548. Lessee road now owned by Southern Ry. Co., 548 (note). Lease to Seaboard Air Line Belt Railroad Co., of terminal facilities at Atlanta, Ga, 554. Georgia, Carolina & Northern Ry. to share in, 554. Contract with two above companies as to interchange of business, 554. Leased roads, what have been, by N. C. & St. L. Ry. Western & Atlantic Railroad, 335. Chattanooga Terminal Railroad, 448. Louisville & Nashville Terminal Railway, 557. Tennessee Midland Railroad, 455. Paducah, Tennessee & Alabama Railroad, 487. Purchased roads, what have been, by N. C. & St. L. Ry Nashville & Northwestern Railroad, 76. Hickman & Obion Railroad, 104. Pikeville Branch Railroad, 266. Winchester & Alabama Railroad, 152. McMinnviile & Manchester Railroad, 166. Tennessee & Pacific Railroad, 129. Southwestern Railroad, 192. INDEX. 963 NASHVILLE, CHATTANOOGA A ST. LOUIS RY. Continued. Inman Branch Railroad, 269. Nashville & Tuscaloosa Railroad, 227. Tracy City Branch Railroad, 277. West Nashville Branch Railroad, 318. Huntsville & Elora Railroad, 214. Duck River Valley Narrow Gauge Railroad, 250. Bon Air Railroad, 199. Tennessee & Ooosa Railroad, 287. Allen's Creek extension, 288. Rome Railroad, 381. Middle Tennessee and Alabama Railroad. 406, 410. Built roads, what have been, by N., C. & St. L. Ry. Shelbyville Branch, 286. Jasper Branch, 264. Southwestern Railroad, most of, 192. Centerville Branch, part of, 227. Tennessee & Coosa Railroad, part of, 287. Swan Creek Branch, 228. West Nashville Branch, part of, 318. Map of road, see front of book. Mortgages on. (See "Mortgages.") NASHVILLE & NORTHWESTERN RAILROAD. How acquired by N., C. & St. L. Ry.. 76. What franchises. etc., passed under sale, 77. Width of right of way, 78. Where Nash. & N. W. Railroad Co. incorporated, 80. Distance built when purchased, 80. Effect of purchase In icndering N.. C., & St. L. Ry., as to this line, a domestic corporation of Kentucky, 856. Original charter (annotated), 81. General powers, 81, 82. Exclusive transportation, 87. Freight charges, 87. Real property may be purchased under for what, 90. Crossing roads and water courses, 91. Purchase of bridges, roads, etc., 91. Bridge across Tennessee river, how constructed. 99. 100. Right of way, how condemned, 91. Character of title acquired same as N., C. & St. L. Ry., 16 (note 1). In absence of contract. 200 feet, when, 93. Penalty for intrusion, 94. Obstructing or damaging road or bridge, punishment. 94. Obstruction a public nuisance, 95. 964 INDEX. NASHVILLE & NORTHWESTERN RAILROAD Continued. Storage charges allowed, when, 95. Crossings of roads and lands, 96. Exemption from taxation, 97. Branches, who may build, 98. Duty of road as to, 98. Amendments to Charter (Chancery Court), 115-25. Validity of these amendments, 695. Acts of Tennessee amending charter and relating to road. Stockholders not to pay more than one per cent, of subscrip- tion, when, 100. Authorized to build branch road from Huntingdon to Jackson, how, 101. Authorized to commence work, when and how, 101. Time to complete extended, 101. Drawbridge across Tennessee river allowed, 101. Subscription foi stock in regulated, 101. Western terminus of road fixed, 103. Hickman & Obion Railroad authorized to be leased or pur- chased, how, 103. Stockholders in Henry county, and west of M. & O. Railroad, provided for, 103. Charter of Hickman & Obion Railroad Co., 104 (note). Mississippi Central Railroad Co. authorized to be leased or consolidated with, 108. Authorized to unite with any company connecting with it in direction of New Orleans, 108. Authorized to unite with and have common track with Mem- phis, Clarksville & Louisville Railroad, where and how, 110. Authorized to chango route, 110. Authorized to consolidate with Mississippi & Tennessee Cen- tral Railroad, how, 110. Authorized to adopt gauge of N. & C. Railroad, 111. Authorized to run cars to depot of Central Trunk Railroad, how. 111. Stockholders to pay only one per cent, cash on subscribing, 111. Authorized to issue stock to taxpayers of Davidson county, when, 112. Extra time given to get stock and prepare road, 112. Resolution directing governor to surrender the road to its president and directors, 112. Resolution directing inquiry concerning application of bonds issued by state to, 113. State aid to, 113. Internal improvement acts, 45. Authorized tc run cars upon track of Nashville and Memphis' INDEX. NASHVILLE & NORTHWESTERN RAILROAD Continued. Railroad Co. am 1 Memphis, Clarksville & Louisville Rail- road Co., 114. Authorized to lease its road to N. & C. Railroad Co., 34. Acts of Kentucky relating to. Charter of, in Kentucky, 125. Charter re-enacted in Kentucky, 126. State of Tennessee given statutory lien on that part of road in Kentucky as security for bonds issued, 126. Hickman & Obion Railroad Co. authorized to sell its road to, 127. Charter Hickmun & Obion Railroad Co., 104 (note). Map of road, see front of book. Mortgages on. (See "Mortgages.") NASHVILLE & TUSCALOOSA RAILROAD. (Centreville Branch.) How acquired by N., C. & St. L. Ry., 227. Legality of purchase of, 228 (note 5). Deed to part of road from Dickson to Centreville, 241. Where registered, 243 (note). Deed to part of road from Centreville to Lewis county line, 243. Where registered, 245 (note). Width of right of way, 229. What franchises, etc., parsed under above sales, 228. Gauge changed, when, 228 (note 4). Road from Kimniiiis to Mannie, on Allen's Creek, how acquired by N., C. & St. L. Ry., 228 (note 2). Deed to, 245; see also 228 (note 2). Where registered. 228 (note 2). Road from Centreville to Swan Creek, in direction of Duck river phosphate mines, how built, 228 (note 3). Road from Lyles to Warner, 228 (note 6). Original charter of Nashville & Tuscaloosa Railroad (annotated), 230. Genera, powers under, 230 Special provisions, 231. Express and implied powers. 232. Charter may be repealed or amended, 232. Right of way, how condemned, 233. Authorized 200 feet, 233. Land may be taken, how. 233 et seq. Statute of limitations as to damages for, 237. Not interfere with highways, streets, etc., 237-8. Transportation charges, 237-8. Crossings, signboards, etc.. 238. Regulations for running trains, 239. 966 INDEX. NASHVILLE & TUSCALOOSA RAILROAD. Continued. Prohibited contracts. 239. Map of, see map in front of book. Mortgages on. (See "Mortgages.") NORTHWESTERN BRANCH. (See Nasnvine & Northwestern Railroad.) PADUCAH, TENNESSEE AND ALABAMA RAILROAD. How acquired, 487. Abstract of title, 487 et seq. Legality of lease. *89. Roger's suit concerning, 489 (note). Distance built when leased, 490. How and where incorporated, 490. Composed of what original roads, 490. Legality of consolidation of original roads, 491 (note 1). Width of right of way, 491. In Tennessee, 491 In Kentucky, 493. Lease contract (temporary), 472, 500. Where registered, 476 (note). Lease contract (permanent), 477, 500. Deed of J. W. Phillips to L. & N. Railroad Co., of road, 529. Deed where registered, 533 (note). Original charter of Faducah & Tennessee Railroad Co. (of Ky.), 491. General powers under, 494, 522. Width of right of way, 495. Land for taken how, 495, 498, 500, 522. Land for other purposes, 495, 498. May hold and condemn land, 496, 498, 500. Franchises made perpetual, 496, 522. May indorse bonds of cities, counties, etc., 496. May consolidate with other roads, 496, 526. May borrow money, issue bonds, etc., how, 503, 526. May mortgage. 503 (note), 526. Taxation, 504. Charter of amended, 522. Acts of Kentucky, as to Paducah and Tennessee Railroad Co. (of Ky.), 520. Route changed, 520. Original charter of the Paducah & Tennessee Ry. Co. (of Tenn.), 505. General powers under, 505. INDEX. 967 PADUCAH, TENNESSEE & ALABAMA RAILROAD Continued. Franchises under. 506. Where charter registered, 507 (note). Original charter of the Paducah & Tennessee Railroad Co. (of Tenn.), 508. General powe r s under. 508. Franchises under, 509. Where charter registered, 510 (note). Articles of consolidation of the three above companies, creating the Paducah. Tennessee & Alabama Railroad Co., 510 et seq. Franchises of old companies vested in new, 513. Where articles of consolidation registered, 515 (note). Minutes of constituent companies authorizing consolidation, 516 et seq. Consolidation approved by the legislature, 527-8. Effect of lease in rendering N., C. & St. L. Ry. a domestic corpora- tion of Kentucky, 856, 861 (note). Map of road, see front of book PIKEVILLE BRANCH. How acquired, 260. Width of right of way. 267. Original charter of (annotated), 267. Deed to, 273. Where registered, 266. Map of road, see front of book. Mortgages on. (See "Mortgages.") PRESIDENT. How chosen. 876. Qualifications, 876. Pro tern., how elected, 877. Powers of, 877. May call meetings of directors, when, 878. PURCHASE. In Tennessee. Power to purchase real and personal estate, 878. Lands for storehouses, depositories, workshops, materials, etc.. 878. Bridges and turnpikes. 878. Stork in othor railroad companies. 887. Other rf-llroadfr, 879. Franchises of other companies. 879. May purchase privately or under judicial proceedings. 879. 968 INDEX. PURCHASE Continued. Purchase carries franchises, when, 880. Purchaser under foreclosure proceedings, rights of, 880. May purchase, build, lease or sell railroad, or any part thereof, in any state, 880. May purchase branches and extensions, 881. Purchasers at judicial sale may organize into corporate company, how, and with what powers, 882. Where railroad lies wholly or partly in state, 882. May organize new company, 883. What interest entitles to one vote, 883. Organization, 883. Memoranda to be filed with secretary of state, 883. Certificate of organization, 883. Shares, bords, etc., to be issued by directors, 884. Purchaser pets property free of vendor's debts, when, 884. Who to authorize purchase, directors or stockholders, 884. Vote necessary, 884. Duty of purchasing road as to completing and operating entire line, 885. Power of N., C. & St. L. Ry. over purchased roads, 887. In Alabama. Power of N., C. & St. L. Ry. to purchase roads in Alabama, 887, 889. Both roads must have power, 888 (note). Domestic railroad companies may sell to foreign, 888. Lines may be extended, or branch roads acquired, 890. Mode of purchasing branch roads, 890. Court of equity may order sale of railroads, when, 891. Purchasers at, duty of, 891. Rights of, 891. Purchasers of railroads may organize as a corporation, 892. Mode of organization, 892. Purchasers under power in mortgage or deed of trust, 892. Purchase of competing steamship lines not authorized by power to purchase, 776. Duty of purchasing road as to completing and operating entire line, 885. In Georgia. Power of N., C. & St. L. Ry. to purchase roads in Georgia, 893. Both roads must possess power, 893 (note 1). Cannot purchase parallel or competing lines, 893 (note 3). Railroads chartered under general law may purchase other roads not competing, 893. May sell or lease their roads to or consolidate with other companies, 894. INDEX. 969 PURCHASE Continued. Purchasers at judicial sales in Georgia, rights of, 895. Reorganization of, 896. How incorporated, 896. Rolling stock, as to the purchase of, 897. Validity and record of contracts for, 897. Duty of purchasing road as to completing and operating entire line, 885. In Kentucky. Power of N., C. & St. L. Ry. to purchase roads in Kentucky, 898. Cannot purchase parallel or competing lines, 899 (note). Both roads must possess power, one to sell and other to purchase, 899. Purchasers uuder foreclosure proceedings, powers of, 899 (note). Foreign corporations, 899 (note 2). What roads have been purchased by N., C. &. St. L. Ry. Nashville & Northwestern, 76. Hickman & Obion, 104. Pikeville branch, 266. Winchester & Alabama, 152. McMinnville & Manchester, 166. Tennessee & Pacific, 129. Southwestern, 192. Inman branch, 260. Nashville & Tuscaloosa, 227. Tracy City branch, 277. West Nashville branch, 318. Huntsville & Elora. 214. Duck River Valley Narrow Gauge, 250. Bon Air, 199. Tennessee & Coosa, 287. Allen's Creek extension, 288. Rome Railroad, 381. Middle Tennessee & Alabama Railroad, 406. 410. (See also "Leased Roads.") Map of, see map in front of book. RIGHT OF WAY. In Tennessee. Abandonment of. right to. 696. 697. As ground for forfeiture of charter considered, 697. May abandon depots, stations, etc.. when. 914. Right to abandon part or whole, when. 411 (note 8). Right to remove rails, bridges, etc.. on. when. 410 (note 1). 970 INDEX. RIGHT OF WAY Continued. As to duty of completing and operating an unfinished pur- chased road, see 885. Railroads chartered under general act may change either terminus, when, 887. Character of title acquired, 737 (note). Where condemned under charter of main branch, 737 (note). In absence of condemnation or contract, 738. What branches does this apply to, 738 (note 2). (For other branches see their respective charters herein.) In absence of contract or condemnation, right of way 200 feet, when and where, 738 (note 2). Landowner's possession not adverse, when, 739. Railway may take when necessary for railroad purposes, 739. Necessity for taking, who to determine, 740. Effect where house built on right of way, 741. To what branches does this apply, 740 (note 2). Condemnation, may be for what. Charter provision on subject, 736. Approaches to road may be, 17 (note 2), 737. Lateral roads not exceeding eight miles, 752. Lateral roads fifteen miles, 752. Connections with other roads, 754. County roads or highways, how, 755. Condemnation, how made now, 750, 766 et seq. Where lateral road to extend from leased road, who to condemn, 754. Where It extends from purchased road, who to con- demn, 753. Statute of limitations as to damages for, 773. Successive appropriation, 745. Power to take land to broaden right of way, not exhausted, 745. To what branches does this apply, 749 (note). May condemn though contract not to do so, 7oO. May not be for workshops, storehouses, materials and houses for agents, 738. Nature of railway's ownership of right of way, 742. Right to trees, herbage, gravel, etc., on right of way, 744. What damage to landowner included in condemning right of way, 745. Overflow for twenty years gives right, 745. As to duty of company to complete and operate an unfin- ished purchased road, see 885. INDEX. 971 RIGHT OF WAY Continued. Power of others to condemn right of way of this company. Power of other roads as to, 756. Can future legislatures change this so as to authorize, 759. Power of cities as to, 760. Power of counties as to, 760. May condemn crossings, when, 760. So may railroads, 761. Telegraph aad telephone companies, 762. 763. Conditions, 7C2. Only nominal damages, when. 767. Railroads hereafter built not to take wider strip than neces- sary. 764. Other roads' rights as to, when. 764. May condemn joint use of tracks in narrow passes, gorges, etc., of future roads. 765. This does not apply to N., C. & St. L. Ry. and possessions, 766 (note). Width of right of way of, Allen's Creek extension, 246. Bon Air Branch, 199. Centreville Branch, 229. Chattanooga Terminal Railway, 449. Columbia Branch, 251. Duck River Valley Narrow Gauge Railroad. 251. Fayetteville Branch, 154. Gadsden Branch, 288. Hickman & Obion Railroad, 78. Huntsville & Elora, 214. Jnman Branch, no specified width mentioned in deed, or charter of company condemning, 269. Jasper Branch, 265. Lebanon Branch. 131. McMinnvilie Branch. (See McMinnville & Manchester Railroad: Southwestern Railroad: Bon Air Railroad.) " McMinnville & Manchester Railroad, 169. Memphis Branch, 451*. Middle Tennessee & Alabama Railroad. 411. 412. N., C. * St. L. Ry. (main stem). 17. 18. 737. 738. Nashville & Northwestern Railroad. 78. Nashville & Tuscaloosa Railroad. 229. Northwestern Branch. 78. Paducah. Tenn. & Ala. Railroad, 491. Pikevllle Branch. 267. Rome Railroad. 380. Sequatchie Valley Branch. 265. 267. Sewane*> Branch. 279. 972 INDEX. RIGHT OF WAY Continued. Shelbyville Branch, 286. Southwestern Railroad, 193. Sparta Branch, 169, 193, 199. Tennessee & Coosa Railroad, 288. Tennessee & Pacific Railroad, 131. Tennessee Midland Railroad, 459. Tracy City Branch, 279. Western & Atlantic Railroad, 336. West Nashville Branch, 319. Winchester & Alabama Railroad, 154. In Alabama. Nature of railway's holding of right of way, 774, 742. See also Tennessee law above. Easement acquired, 775. Different as to main branch, 774, 737 (note). Trespassers may be ejected from right of way, 775. Width of right of way in absence of contract, 775. Adverse possession, 775. Successive appropriations, 776. May condemn i'or branch roads, when, 639, 640. Power of other roads to condemn on this, 776. Railroads may condemn connections and crossings, 776. Cities may authorize tracks to be built on or across streets, 776. Railroad public highway, 776. Franchise forfeited by nonuser, 776. Telegraph and telephone, rights as to condemning right of way on, 776, 783. How land condemned in Alabama, 777 et seq. Power of this company to condemn on purchased roads, 777 (note). Right to trees, gravel, etc., on right of way, 744. As to duty of company to complete and operate purchased roads, 885. In Georgia. Nature of railway's holding of right of way, 784, 742. (See also Tennessee law, above.) Easement only acquired, when, 784. Different as to main branch, 784, 737 (note). Injunction will lie to prevent others from building on, 784. Statute of limitations runs against, when, 785. As to main line, see 737 (note), 738. Misuser of franchise may work dissolution, 785 (note). Power of cities to open streets across, 785. When streets opened, railroad not prevented from laying ad- ditional tracks at crossing, 785. INDEX. 973 RIGHT OF WAY Continued. Successive appropriation, 786. Connecting switches with other roads may be condemned, 786. May condemn land for branch roads, 786. Power of other roads to condemn right of way of this, 786. To condemn joint use of tracks, terminal facilities, etc., of this. 787. Width of right of way of roads chartered under general law, 787. Right of eminent domain, 787. Telegraph companies, powers as to occupying right of way of railways. 789. Duties as to, 789. Laws applicable to W. & A. R. R. Co., 789, 336 (note). Road laws also apply, 789. How land condemned in Georgia, 790 et seq. Character of title acquired under. General notes, 797. Right to trees, gravel, etc., on right of way, 744. As to duty of company to complete and operate unfinished purchased roado, 885. What damage to landowner included in condemnation of, 745. May change general route, when, 887. As to changing line so as to side track town, 96 Ga., 385. In Kentucky. Nature of railway's holding of right of way, 799, 742. Easement only acquired, 799. Adverse possession of right of way, 800. Presumption on sale of right of way, 800. Constitution to be accepted before land acquired, 801. Power of other roads to cross this, 802-3-4. Power of telegraph companies to condemn right of way over, 804. Successive appropriations, 804. How land condemned, 804 et seq. Power of railways chartered under general act to acquire lands for, 801. Width of right of way. 802. Change gauge. 802. Change location, when, 802. (See also Tennessee law, above.) Right to trees, gravel, etc., on, 744. What damage to landowner Included in condemnation. 745. As to duty of company to complete and operate an unfinished purchased road, 885. As to changing location, see Code Ky.. 1894. sec. 768. 974 INDEX. ROME RAILROAD. How acquired, 379. Legality of purchase, 379 (note 1). Effect of purchase in domesticating N., C. & St. L. Ry. in Georgia, 379 (note 2). What franchises passed under sale, 380. Width of right of way, 380. Distance built when purchased, 381. Deed to, 390. Original charter of (annotated), 381. Name formerly Memphis Branch Railroad & Steamboat Co. of Georgia, 382. General powers under, 382. 389. Freight and passenger charges, 385. Road to be completed, when, 385. Land for right of way, how acquired, 386. Public roads not to be obstructed, 387. As to other road^, within twenty miles, 387. Amendment to charter authorizing sale of road, 397 et seq. Time for completing road extended, 402. Route of road provided for, 402. Name changed to Rome Railroad Company, 403. Authorized to consolidate with Memphis Branch R. R. Co., 404. Authorized to use common tracks, etc., with certain roads, when and where. 404. Amended by adding word "Trustee" in 8th section of charter, 404. Capital stock increased, etc., 402. Map of road, see map in front of book. Mortgage on. (See "Mortgages.") ROLLING STOCK. (See "Sales," "Purchase.") RULES AND REGULATIONS. Power of N., C. & St. L. Ry. to make, 899. Must be reasonable, 899. Depots, stations, rules as to, 900. Tickets, rules as to, 900. Ladies' car, rules as to, 901. Schedule regulations, 901. Sleeping car regulations, 901. Passenger regulations, 902. Car service rules, 90 L Baggage and freight departments, 902. INDEX. i'T.. RULES AND REGULATIONS Continued. Employes, rules governing, 902. Who to enact rules an-l regulations, 903. How differ from by-laws, 903. Construction of rules, 903. SALES. In Tennessee. Power of N., C. & St. L. Ry. to sell its railroad, franchises, etc., 904. Charter provision on subject, 904. May sell under general law, 905 et seq. Who to authorize, stockholders or directors, 906. Vote necessary. 906. Both roads must possess power, one to sell and other to buy, 907. Power to sell its purchased roads, 907. Rolling stock and equipments, conditional sale of, 907. Leasing clause for, 90S. Contract to be probated and registered where, 908. Rolling stock to be branded, 908. Sale of freight for charges, 821. In Alabama. Power of N., C. & St. L. Ry. to sell its road in Alabama, 909. Both roads must possess power, 909 (note 1). Domestic corporations may sell their property to foreign. 888. Courts of equity may order sales of, when, 909. Power to sell its purchased roads, 910. Sale of freight for charges, 824-5. In Georgia. Power of N., C. & St. L. Ry. to sell its road in Georgia. 910. Both roacla must possess power, one to sell and other to buy, 911 (note 1). Cannot sell to parallel or competing lines, 911. Power to sell its purchased roads in Georgia, 911. Sale of freight for charges, 827. In Kentucky. Power of N., C. & St. L. Ry. to sell its road In Kentucky. 912. Cannot sell to parallel or competing lines. 912 (note 1). Both roads must have power, one to sell and other to buy, 911 (note 1). Power to sell its purchased roads In Kentucky, 913. Foreign corporations. 912 (note 2). Purchasers un-ler foreclosure proceedings, powers of, 913. Sale of freight for charges, 829. 976 INDEX. SEABOARD AIR LINE BELT RAILROAD COMPANY. Lease of terminal facilities at Atlanta, to, 554. Contract for interchange of business by and with the N., C. & St. L. Ry., 554. Georgia, Carolina & Northern Railway interested in above lease, 554. Duration of contract, conditions, 554. Receiving and delivering cars on tracks at Howell's provided for, 555. Consideration, 555. Joint use of depot at Atlanta provided for, 555. Cleaning and storing engines and cars provided for, 556. Consideration, 556. Termination of contract in part provided for, 556. SEQUATCHIE VALLEY BRANCH. How acquired, 264. Composed of Jasper, Pikeville, and Inman branches, 264. Jasper branch, how acquired, 264. Width of right of way of, 265. State aid to, 266 (note 3), 274. Road from state line to Jasper authorized by Tennessee, how, 274. Road from Bridgeport to state line authorized by Alabama, how, 275. Pikeville branch, how acquired, 266. Width of right of way of, 267. Original charter of (annotated), 267. Deed to, 273. Where registered, 266. Inman branch, how acquired, 269. Legality of purchase of, 269 (note). Deed to, 270. Where registered, 269. When Tennessee Coal, Iron & Railway Co. chartered, 269 (note) . Map of road, see map in front of book. Mortgage on. (See "Mortgages.") SEWANEE BRANCH. (See "Tracy City Branch.") SHELBYVILLE BRANCH. How acquired, 286. Width of right of way, 286. Completed about 1852. (See map in front of book). Map of road, see map in front of book. Mortgage on. (See "Mortgages.") INDEX. 977 SIDE TRACKS. In Tennessee. Power to build side and spur tracks, 641. In Alabama, power to build, 641. In Georgia, power to build, 641. In Kentucky, power to build, 641. SOUTHERN RAILWAY COMPANY. (See Memphis & Charleston Railroad Company). Lease of joint use of track from Stevenson, Ala., to Chattanooga, formerly made by N., C. & St L. Ry. to M. & C. R. R. Co., passed to, 543. Lease of joint use of track at Dalton, Ga,, passed to, by purchase of East Tennessee, Virginia & Georgia Railway, 548. SOUTHWESTERN RAILROAD. (Part of McMinnville Branch.) How acquired by N., C. & St. L. Ry., 192. Legality of purchase of, 193 (note 3). Width of right of way, 193. Original charter of (annotated), 194. General powers, 194, 195. Given powers, rights and privileges of N., C. & St. L. Ry., 194. Acts relating to. Nashville & Cincinnati R. R. Co. authorized to unite on com- mon track with, 197. Receiver of authorized to be settled with, 197. State aid to, 198. Internal improvement acts, 45. Map of road, see map in front of book. Mortgage on. (See "Mortgages.") SPARTA BRANCH. (See McMinnville & Manchester Railroad, and Southwestern Rail- road; they form the branch. See also Bon Air Railroad for ex- tension). Map of road, see map in front of book. Mortgage on. (See "Mortgages.") SPUR TRACKS. Power to build, 641. STATIONS. In Tennessee. Power to abandon, tear down, and remove, 914. 978 INDEX. STATIONS Continued. In Alabama, 914. In Georgia, inoperative, when, 914. In Kentucky, inoperative, when, 914. Rules and regulations concerning, 899. Numerical list of, see reverse sides of map in front of book. Distances respectively from Nashville, same. Union station at Nashville, 589. May keep hotel, restaurant and news stand in, 564. STOCK. (See "Capital Stock.") STOCK GAPS. In Tennessee. Stock gaps at private crossings, 712b, 712c. Stock gaps on unfenced tracks, 71 2c. Applies to fields hereafter opened, 712c. Must fence and erect lawful stock gaps or be liable for stock killed, 808. In Alabama. Stock gaps must be erected where, 716. In Georgia. Stock gaps required where, 717. Liability for failure, 718. Additional stock gaps required where, 718. Stock gaps on W. & A. R. R., right of landowners to build, 815. In Kentucky. Stock gaps to be erected where, 720. STOCKHOLDERS. May inspect books, 928. Meetings of, charter provision as to, 915. General meetings. By-laws -as to, 915. Time and place of holding, 915. Notice of, 916. 917. When notice must state object of meeting, 918. Adjourned, 916, 918. Officers hold till successors elected, 916, 924. Quorum, 916. 918. Special meetings, 916. Who may call and for what purpose, 916. Notice of, 916, 917. When notice must state object of, 918. INDEX. '.'7: STOCKHOLDERS Continued. When there are two or more calls for same meeting. 92S. Meetings out of state, 918. Election of directors, 721 et seq. Judges and clerks of elections, who appoints, 919. Voting, 919. May be by proxy, 919. How vote taken, 919. Scale of, 919. Qualification of stockholder to vote at elections, 919. Not disqualified, because interested in subject-matter. or election, 920. Who may vote, 920. Where shares held by two or more persons Jointly, 921. Where stock pledged or mortgaged. 921. Where shares held by surviving partner, 921. Where owner dead, 922. Where shares held by other corporations. 922. Whero shares owned by corporation itself. 922. Where shares held by receiver, 923. Where shares held by trustee. 923. When in name of partners, 923. When in name of "A. B., Cashier," 923. Who elected, 923. When president fails to call election, 924. Two or more calls, where meeting then held. 925. Stockholders may petition judge or chancellor, 925. Order to be recorded, 926. Election, how conducted then. 926. Compensation of clerk, 927. Certificates of election, 927. Qualification of officers-elect, 927. May take charge of all papers, books, etc.. 927. Proceedings ngainat overholding board, 927. Petition and proceedings thereon, 928. SWAN CREEK BRANCH How constructed by N.. C. & St. L. Ry.. 228 (note 3). TAXATION. Stock in N., C. & St. L. Ry. exempt from taxation. 23. 693. How taxes on W. & A. R. R. paid. 346. How taxes on main line in Georgia to be paid, 59. 980 INDEX. TELEPHONE AND TELEGRPAH COMPANIES. Power to condemn right of way along railroad in Tennessee, 762, 763. In Alabama, 776, 783. In Georgia, 789. In Kentucky, 804. TENNESSEE & COOSA RAILROAD. How acquired, 287. Legality of purchase, 288 (note 3j. What franchises passed under sale, 288. Additional franchises, 288. Distance built when purchased, 288. Width of right of way, 288. Deed to, 298. Original charter of (annotated), 290. Land for rignt of way, how acquired, 294, 295. Character of title acquired to right of way, 296. Termini, route, 290. General powers in, 291. Mortgages under, 292. Injury to road under, 296. Public roads not to be obstructed under, 296. Freight rates under not to exceed what, 297. Other roads may cross this, 297. Amendments to charter as to semi-annual reports to gov- ernor, 812. As to suits for subscription; witnesses, 313. Changing lime of holding elections, 313. Effect of purchase in rendering N., C. & St. L. Ry. a domestic corporation in Alabama, 843. Acts Alabama relating to, 309 et seq. Termini changed, 309. Released from indebtedness to state, 311, 314. Granting N.. C. & St. L. Ry. right to build through certain counties with rights, privileges, etc., of Tennessee charter, 315. State aid to, 316. Map of road, see map in front of book. Mortgage on. (See "Mortgages.") TENNESSEE & PACIFIC RAILROAD. How acquired, 129. Legality of purchase, 130 (note 1). Legality of purchase of stock in, 130 (note 2). INDEX. '.'-I TENNESSEE & PACIFIC RAILROAD Continued. Deed to, 143. Where registered, 129, 144. What franchises, etc., passed under sale, 130. Width of right of way, 131. Where incorporated, 131. Distance built when purchased, 131. Original charter of (annotated), 131. General powers, 131, 132. Rate of freight charges, 137. Right of way, how condemned, 138. Given powers of N., C. & St L. Ry. as to, 138, 139. (See sees. 24 and 25 of charter of N., C. & St L. Ry.) State aid to, 140, 141. Company subject to general laws, 142. The right to mcdity, alter or repeal the charter was not specifically reserved, however, 142 (note). Hence is irrevocable, 678, 679. Acts of Tennessee amending charter and relating to road. Counties of Wilson and Davidson authorized to vote for stock in, 144. Authorized to unite upon a common track with Nashville ft Cincinnati Railroad Co., how, 145. Suit directed to be instituted against for bonds fraudulently obtained, 146. Resolution directing directors to account for funds received, disclose stockholders in and give distance road built and costs, 147. Commissioners directed to sell, 148. State's claim against, authorized to be compromised for $300,- 000, 150. State aid to, 151. Internal improvement acts, 45. Map of road, see map in front of book. Mortgage on. (See "Mortgages.") TENNESSEE MIDLAND RAILWAY. How acquired. 435. Legality of lease, 457. Rogers' suit concerning, 457 (note). Distance built when leased, 458. Width of right of way. 459. Lease contract (temporary). 472. Where registered. 476 (note). Lease contract (permanent), 477. Deed of J. W. Phillips, of road, to L. ft N. Railroad Co.. 488. 6* 982 INDEX. TENNESSEE MIDLAND RAILWAY Continued. Deed where registered, 486 (note). Original charter of (annotated), 459. General powers under, 460 Special provisions, 461. Express and implied powers, 462. Charter may be repealed or amended, 462. Right of way, how condemned, 463. Land, how taken for, 463 et seq. Statute of limitations as against damages for, 467. Gauge, 467. Charges for transportation, 467. Construction of tracks on highway, 467. Crossings, signboards, 468. Regulations for running trains, 468. Prohibited contracts, 469. Freight must be received from other roads, 469. Where charter registered, 471 (note). Map of road, see map in front of book. TRACY CITY BRANCH. How acquired, 277. Width of right of way, 279. Distance built when purchased, 279. What franchises passed under sale, 279. Legality of purchase, 279 (note 2). When Tennessee Coal & Railroad Co. chartered, 278 (note). Deed to, 280. Where registered, 285. Mortgage on. (See "Mortgages.") Map of road, see map in iro'nt of book. WARNER BRANCH. What interest N., C. & St. L. Ry. has in, 228 (note 6). Map of road, see map in front of book. WESTERN & ATLANTIC RAILROAD. How acquired, 335. When road built by Georgia, 335 (note 1). Legality of lease, 335 (note 2). What personal property passed under lease, 336 (note 3). Relation of state of Georgia to road, and laws applicable to, 336 (notes 4, 5). Width of right of -way, 336. Charter of Hiwassee Railroad, 63. INDEX. .'-:', WESTERN & ATLANTIC RAILROAI> Continued. Nature of company's control of right of way. 337 (note 8). Map of right of way, 3.17 (note 4). (See also map in front of book.) Lease contract, 348. What laws apply to, 336. (notes 4, 5). 789, 815. Act authorizing lease, 337. How lease contract to be drawn and executed, 339. Bonds to be deposited, 339. Lease forfeited, when. 339, 344. Bonds to be collateral security for faithful performance of lease, 340. Additional security, when. 340. Betterments and improvements to belong to whom. 341, 346. Road to be kept first-class, 341. Examiners, 341. Lessee to report to legislature, when, 341. Liable for deterioration in value, 341. Inventory, how and by whom made, 342. Incorporation of lessees, 342. Name, 342. General powers, 342 et seq. Freight and passenger tariffs, 344. Lessee to be held harmless against bonds on road, 344. Rbad and rolling stock to be received and accounted for. how, 344. Rent, how paid, 347. Subletting prohibited, exceptions, 346. This did not prevent mortgaging, 346 (note 1). Shops and principal office to remain in state, 347. Governor to operate road, when, 347. Taxes, who to pay. 346. Conflicting laws repealed, 347. Lessee's authorized to construct side tracks across certain roads, when and how. 367. Lease contract, 348. List of rolling stock and personal property received under lease. 352 et seq. Acts Georgia relating to, 362 et seq. Pillars of Kcnnesaw house, in Marietta, allowed to rest on right of way, how, 362. Cincinnati Southern Railroad allowed to run on right of way of. how, 362. Dalton & Gadsden Railroad Co. allowed to build on right of way. how. 363. Georgia Western Railroad Co. authorized to build on right of way, how. 364. 984 INDEX. WESTERN & ATLANTIC RAILROAD Continued. Polk State Quarry Railroad Co. authorized to build on right of way. how, 364. Mill race under right of way one mile south of Dalton author- ized to be built by G. W. Keith, 364. Gainesville & Western Railroad Co. authorized to cross W. & A. Railroad, 365. Marietta & North Georgia Railroad authorized to build on right of way froiri Marietta to Marble Mills, how, 366. Georgia OverlanJ Railroad & Improvement Co. authorized to cross right of way, how, 366. Lessees authorized to construct side tracks across certain roads, when and how, 367. Catoosa Springs Co.'s railroad authorized to be built on right of way, from Ringgold to bridge across Chickamauga creek, how, 368. Georiga, Alabama & Carolina Railroad Co. authorized to cross W. & A. Railroad, how, 369. Fairmount Valley Railroad not to run nearer than ten miles of, when, 370. Stock gaps, right of landowners to build, 815. Resolutions of Georgia relating 10, 370. Acts of Tennessee, relating to, 371. Rights of N., C. & St. L. Ry. granted to Georgia in building, 371. Rights of Hiwassee Railroad Co. granted to Georgia in build- ing, 371. Charter of Hiwasse Railroad Co., 63. Further time granted to complete, 372. Memorial of Tennessee legislature to Georgia legislature in regard to, and comity between states, 372. Lease to East Tenn., Va. & Ga. Ry. Co., of joint use of tracks at Dalton, Ga., of, 548. Lease to Seaboard Air Line Belt Railroad Co. of terminal facilities at Atlanta, of, 554. Lease to be shared in by Georgia, Carolina & Northern Ry., 554. Contract for interchange of business between, 554. Map of road, see map in front of book. Mortgage on. (See "Mortgages.") WEST NASHVILLE BRANCH. How acquired, 313. Legality of purchase, 318 (note 2). What franchises, etc., passed under sale, 318. Width of right of way, 319. Original charter (annotated), 319. General powers under, 320. INDEX. 985 WEST NASHVILLE BRANCH Continual. Express and implied powers, 321. May be repealed or amended. 322. Mortgages under, 322. Condemnation of right of way. 322. How land taken, 323 et seq. Limitations of proceedings for damages for right of way, 326. Gauge, transportation charges, 327. Tracks not to obstruct roads, streets, etc., 327. Crossings, signboards, 327. Regulations for running trains over, 328. Prohibited contracts, 328. Must receive freight from other roads, 328. Where charter registered, S29 (note). Deed to, 330. Where registered, 334. Map of road, see map in front of book. Mortgage on. (See "Mortgages.") WINCHESTER & ALABAMA RAILROAD. (Fayetteville Branch.) How acquired by N., C. & St. L. Ry., 152. Legality of purchase oi. 153 (note). Deed to. 158. Where registered, 161 (note). Whai franchises passed under sale, 153. Width of right ot way, 154. Where incorporated, 154. Distance built when purchased, 155. Original charter of (annotated), 156. General powers same as N., C. & St. L. Ry., 156. 157 (note). Decree vesting title to road, franchises, etc., in Memphis & Charles- ton Railroad Co., 161. Where registered, 1C3 (note). Acts Tennessee amending charter of, and relating to road. Authorized to extend road from Winchester to N. & C. Rail- road, how, 163, 156 (note). Capital increased. 163. Authorized to construct road to Fayetteville, how, 163. 157 (note). Resolution directing investigation of condition of road. 164. State aid. to. i;i Internal improvement acts. 45. Map of road, see map in front of book. Mortgage on (see "Mortgages.") University of California : 1 3; from which it was borrowed. A 000 684 627 3