der a proper construction of the law they will receive; but they must not, for their own gain and profit, be permitted to take private property for private use." See also Valley Salt Co. 7. Brown, 7 W. Va. 191.

1. Chicago etc. R. Co. v. Wiltse, 116 Ill. 449 24 Am. & Eng. R. Cas. 261. holding that where the track for which the company sought to condemn a right of way, was a branch road intended for the private use of handling the freight of certain brick works, the condemnation of property for such use was unauthorized by law, and that the proceedings should have been dismissed as soon as the purpose became apparent.

In Sholl v. German Coal Co., 118 Ill. 427, it was held that the use of a strip of land by a coal company, upon which to construct a tramway leading from the coal works to a railroad track, is a private use, and such strip cannot be condemned, under the Illinois eminent domain act, for such use.

In State v. Railway Co., 40 Ohio St. 504, it was held that where a railway corporation, for a period of five years, fails to construct the line of railroad named in its charter, but condemns private property, and constructs a railroad wholly unsuited to the wants of the public, and for the benefit only of coal mines, owned and operated by the principal corporators and stockholders of such railroad company, it is a misuse of its corporate powers, franchises and privileges.

2. South Chicago R. Co. v. Dix, 109 Ill. 237: 17 Am. & Eng. R. Cas. 157.

3. In Rochester & H. & L. R. Co. v. Babcock, 110 N. Y. 119, a railroad company filed its map and profile for a right of way, and served notice thereof on an owner of land over which it passed. Soon thereafter the owner leased the right of way on the premises sought to be taken by the railroad com

pany to another railroad company, upon which to lay a switch leading to a brick yard, and the construction of the switch was immediately begun. The switch was not needed for the general purposes of the leasing company, nor was it ever completed as far as the brick yard. Held, that the occupation of the premises under the lease was not for such a public use as would bar condemnation by the former railroad company.

The court say: "Lands held by a corporation, but not used for or necessary to a public purpose, but simply as a proprietor, and for any private purpose to which they may be lawfully applied, may be taken as if held by an individual owner. In re Commissioners, 66 N. Y. 413. The need of the land sought in aid of collateral enterprises remotely connected with the running or operating of the road will not justify an assertion of the right of eminent domain. Rensselaer & S. R. Co. v. Davis, 43 N. Y. 137. The whole subject has been recently and fully discussed, in Re Niagara Falls & N. R. Co., 108 N. Y. 375; 33 Am. & Eng. R. Cas. 99, and the limits of judicial control defined. In the case at bar the lease taken was brief and temporary; the lessor, a complaining land owner, and the lessee watching a competitor; the building of the switch so swift and prompt as to indicate a design of obstruction; the purpose asserted, that of convenience to the owners of the brick yard, in which no public use was involved; even that purpose inchoate and barred by the refusal of Mrs. Emery, and the brick vard not even reached, the switch needless for the general purposes of the company, and no such expected use asserted; and the occupation for private gain, and for individual convenience. A switch may be needed for the storage of cars, or making up of trains, or for access to docks, ware

houses and elevators open to public use, and resulting in public accommodation; but nothing of the kind is here pretended, and it is even doubtful whether its sole utility to the builders was any thing other than as an obstruction."

. .

1. Chicago & A. R. Co. v. Suffern (Ill. 1889), 38 Am. & Eng. R. Cas. 508. In this case it was held that the provision of the Illinois constitution that "all railroad companies shall permit connections to be made with their track so that any public warehouse, coal bank or coal yard may be reached by the cars of said railroad" is absolute and peremptory; and if a railroad company wrongfully severs the connection of a switch leading to a coal bank, the legal obligation of the company to restore such connection may be enforced by mandamus.

The following points were also decided: The fact that the proprietor of a coal mine, which already had a switch connecting with a railroad, had permitted another company to construct a switch on its road to the coal bank, and that the two switches were connected at the weighing scales, does not, in the absence of evidence tending to show that the cars of the second company were pushed from the weighing scales upon the line of the first company, or that the first company was in any way injured by the construction of the second switch, justify the first company in disconnecting its switch. A plea which alleges that the manager of the respondent, in the exercise of his discretion, determined that the use of the connecting switches was unsafe and imprudent, is insufficient if it fails to set up facts showing wherein the use would be unsafe. One railroad company is not justified in disconnecting a switch leading to a coal mine, and refusing to permit the owners of the coal mine to ship coal over its road because such owners also ship coal from the same mine over the road of another railroad company which is also connected with the mine by a switch.

In Smith v. Indianapolis P. & C. R. Co., Indianapolis Supr. Ct. Rep. 88, 12 C. of L.-60

it was held that where parties living adjacent to a railroad track made the grade and furnished the cross ties for a switch for neighborhood convenience under a contract with the railroad company that the switch should remain permanently, etc., held that after the road and franchises of the contracting company had been sold under a decree of foreclosure, the corporation purchasing the same might remove the switch, unless it assumed the original contract under section 3 of the railroad act of March 3rd, 1865.

Contract-Specific Performance. - In consideration of certain land owners obtaining from the admiralty a waiver of an obligation imposed upon a railway company by their act to construct certain works, and upon conveyance of the necessary land by the land owners, the railway company entered into an agreement with them to make a carriage road between certain specified points, and also to make and maintain a wharf for loading and discharging vessels at a specified place, of a stipulated length, and of a suitable and convenient height. The obligation imposed upon the company by their act had been waived by the admiralty; and the land required had been conveyed to the company, who had commenced but had not finished the road, and had not commenced the wharf. Held, on demurrer by the company to a bill by the landowners for specific performance of the agreement, 1st, that having obtained the benefit of the agreement by being thereby released from an onerous obligation, and allowed to substitute something more easy of performance, the company would not be allowed to evade the agreement; 2nd, that the agreement was not ultra vires, and might be enforced against them. Wilson v. Furness R. Co., L. R., 9 Eq. 28.

Public Highway.-A private switch from a railroad to coal lands, which is not owned by the railway company, but by individuals for their own private use, is not a public highway within the meaning of § 12, art. 11, of the Illinois

constitution, and therefore not free to all persons for the transportation of their persons and property thereon; that section applies only to public railroads. Koelle v. Knecht, 99 Ill. 396.

1. Philadelphia W. & B. R. Co. v. Williams (Pa.), 4 P. F. S. 103; Getz Appeal, 65 Pa. St. 1; 3 Am. & Eng. R. Cas. 186; Chicago, B. & Q. R. Co. v. Wilson, 17 Ill. 125; In re New York Cent. etc. R. Co., 67 Barb. (N. Y.) 426; Toledo etc. R. Co. v. Daniels, 16 Ohio St. 390.

The A., T. & S. F. R. Co., having completed the line of road authorized by its charter, and having once condemned land in the city of Atchison, for depots, side tracks, etc., and needed more room in said city for the transaction of its business, instituted proceedings for condemning more land. Held, that such proceedings could be maintained, and that under the statute the right of eminent domain was not terminated by the completion of the road or exhausted by a single exercise of the power. Central Branch U. P. R. Co. v. Atchison etc. R. Co., 29 Kan. 669; 5 Am. & Eng. R. Cas. 389.

In Cleveland & P. R. Co. v. Speer, 6 P. F. S. (Pa.) 335, it was said: "By the express words of this charter, the power is conferred of making as many sets of tracks as are deemed necessary. But if this power were not expressed, it is clearly to be inferred from the general powers conferred and the essential purposes of the grant. A power to build side tracks is essential to the purpose and use of the road.

And in Black v. Philadelphia & R. R. Co., 8 P. F. S (Pa.) 252, it was said that "the word 'railroad' ex vi termini, includes sidings."

In New York Cent. & H. R. Co. v. Metropolitan G. L. Co., 5 Hun (N. Y.) 201; 6 ib. 109; 63 N. Y. 326, it was held that a railway company may take lands, under the general law, for the purpose of laying tracks from its main line to its stock yards.

In South Chicago R. Co. v. Dix, 109 Ill. 237; 17 Am. & Eng. R. Cas. 157, it was held that a railway corporation, organized under the Illinois general act of 1872, and the amendment thereto of 1877, is expressly empowered to condemn land for the purposes of switches, turnouts and side tracks, when

necessary for the successful operation of its road. The act requires the persons incorporating a company to name the places from which and to which it is intended to construct the proposed railway, but no limitation is laid down as to the places where switches, turnouts or sidetracks shall be constructed.

Where a railroad company had a side track for many years before connecting its main track with a public warehouse and elevator in a town over the land of another, but without having the right of way therefor, except by the mere consent or licence of the owner, it was held that the company had the right to institute proceedings to condemn the land over which such branch ran for right of way. Fisher v. Chicago & S. R. Co., 104 Ill. 323; 10 Am. & Eng. R. Cas. 14.

A railroad corporation may lay side tracks for its convenience over any land it may own in fee, or land of individuals giving legal consent thereto if no public interest or private right is effected. Bangor etc. R. Co. v. Smith, 47 Me. 34.

Public Use.-Where the record shows that the construction of branches and spur tracks laid down on the map is essential to any successful operation of the petitioner's road, it must be held to be necessary to public use. Toledo, S. & M. R. Co. v. East Saginaw etc. R. Co. (Mich. 1888), 36 Am. & Eng. R. Cas. 553.

Railroad in Street.-A land owner who had released to railroad company the right to occupy a street for one track has been held not entitled to enjoin the construction of a switch by laying an additional rail on the projecting ends of the ties on which main track was laid. Indianapolis etc. R. Co. v. Calvert, 110 Ind. 555; 32 Am. & Eng. R. Cas. 170.

A railroad company having the right to extend a switch track into a highway is bound to use such track in such manner as not unnecessarily to interfere with public travel. Bussian v. Milwaukee etc. R. Co., 56 Wis. 325; 10 Am. & Eng. Cas. 716.

Where the right to lay a railroad track in a street is limited to thirty feet in the center, a railroad company may condemn for a side track which

runs perpendicular to the main track. South Chicago R. Co. v. Dix, 109 Ill. 237; 17 Am. & Eng. R. Cas. 157.

The map required to be filed by a railroad company is sufficient if it shows the alignment and profile; it is not essential that it should show all the connections, turnouts and switches. People v. Brooklyn etc. R. Co., 89 N. Y. 75; 9 Am. & Eng. R. Cas. 454.

Land Adjoining Side Track.-In State v. United N. J. R. & C. Co., 43 N. J. L. 110; 10 Am. & Eng. R. Cas. 103, it was held that the act concerning railroad corporations, approved March 6th, 1877, which authorizes such corporation to condemn land "adjoining their road as constructed on their right of way as located" does not apply to lands which merely adjoin a side track leading from the railway route to a freight house.

Contract Not to Build.-When the defendants executed to the plaintiff railroad company a bond, one of the conditions of which was that said company was not to lay down a side track at a certain town through which the railroad passed, this condition is construed to be a consideration inseverable from the other considerations upon which the entire contract rested, and such consideration being held illegal as against public policy, and void, the contract will not be enforced, nor a recovery had upon breach thereof. Pueblo & A. V. R. Co. v. Taylor, 6 Colo. 1; 6 Am. & Eng. R. Cas. 474.

1. South Chicago R. Co. v. Dix, 109 Ill. 237; 17 Am. & Eng. R. Cas. 157.

2. Avinger v. South Car. R. Co. (S. Car.), 35 Am. & Eng. R. Cas. 519. In this case, accordingly, it was held that an instruction that if a defendant railroad company maintained and operated a branch road, or ran its own engine and cars upon it, whether under its charter it had a right to construct

such branch road or not, it will become a common carrier thereon with all the liabilities to the public which attend the main lines is erroneous. "Suppose, for instance," said the court, "that the defendant owned a body of timber land some miles from its main track and that for its own purposes in procuring crossties, stringers and other lumber for repairs it should construct a track to said lands, using its engines and cars thereon for the transportation of said lumber to the main track, and for no other purpose, could it be claimed that the company would become a common carrier thereon and be bound to receive and transport all freight that might be offered? We think not. The question in such cases must turn on the object and purpose of the branch constructed, and the road operated; and this is a question of fact, dependent, not simply, as we have said, upon the use, but upon the character of the use."

Higher Rates.-A branch line may properly be allowed a larger share of a total rate covering branch and main line than its mileage is part of the total mileage. Distance yields to lightness of traffic and other such considerations in such a case as this. This practice is also sanctioned by the Iowa commissioners, who say: "The practice of allowing to branch and smaller lines, that gather up and distribute the traffic of the main lines, a large percentage of the entire joint rate than a pro rata is universal, and, so far as the commissioners are able to judge, is correct. Without it a few branch lines in the State could probably earn operating expenses. The weak lines with a light traffic must derive subsidy from the main lines to whose large business they contribute, otherwise it would be impossible to equalize the rates, and stations on main lines would get very