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I avers in substance, that plaintiff had failed to comply with this section as to its main line, although a portion of such road had been located for the space of one year before the beginning of this proceeding. Plea No. 2 makes the same averment as to the lateral or branch railroad mentioned in plaintiff's petition. Is the filing of such map and profile of location a condition precedent to the right to condemn land? It is not in express terms made a condition precedent to the exercise of such right, and, if it be such, it must arise from an implication reasonably necessary. By chapter 54, § 34, p. 512, Code, when the certificate of incorporation shall have been issued and delivered as provided, "the corporators named in the articles of incorporation recited therein, and who have signed the same, and their successors and assigns, shall from the date of said certificate become and be a body corporate, as therein stated, and as such authorized to proceed to carry into effect the object set forth in said articles of incorporation, in accordance with the provisions of this chapter. Chapter 42 of the Code confers upon railroad companies, among others, the right to take private property for the construction of their roads, and prescribes the prerequisites and the method of procedure, and among them is the requirement that the application be in writing, "describing with reasonable certainty the real estate proposed to be taken;" so that to give a particular and certain description to the owner of the land proposed to be taken cannot be the sole purpose of requiring the map and profile to be filed, but rather that its location as a whole may be accessible to the public, and the description of the extent and limits of the real estate owned by the railway company may be preserved. And the court below has the right to require that the description of the land proposed to be taken be made certain and definite, and, if deemed necessary to that end, to require a map and profile of the location, as far as it has been made, to be filed or produced; for the law contemplates that construction of the road may be commenced, and therefore, if necessary, condemnation of the land be had, before a final location of the whole road, as intended and set out, has been made; for section 69 of chapter 54 provides that " any railroad company organized under this chapter may build and construct lateral and branch roads or tramways, and of any guage whatever, not exceeding fifty miles in length; and it may build planes and gravity roads, use and operate any part or portion of their main line and branch or branches, when completed, the same as though the whole of their said proposed railway was fully completed." So, again, our statute contemplates, in fact requires, in this particular, as a necessary prerequisite

to the right of condemnation, that the railroad corporation shall acquire such real estate by purchase, if it can agree with the owners. Section 48, chap. 54, p. 518, Code. And in this instance the railway company appears to have acquired its real estate for the most part in that way, and to have already occupied such part with the bridges, tunnels, and roadways of a railway well nigh to that extent completed. Our lack and need of railroads is thought to be great; hence our general law upon the subject is broad and liberal, perhaps beyond precedent. The railway company has been unable to agree with the defendant for the purchase of its part of the real estate needed. Can it be that under such a statute it can interpose as a plea in bar to the awarding of a commission of condemnation the fact that the map and profile of location. has not been filed as required by law. How are we to say that one year is a reasonable time in this particular case? The evidence shows that the difficulties and perplexities of location, as well as of construction, have been great to an extraordinary degree,-so much so that it had to feel its way, as it were, with great caution and circumspection,-and it might have been highly inconvenient and embarrassing to commit itself at once to a definite location throughout. The main line, with its bridges and tunnels and the rest of its track, is about complete from the Ohio state line into the valley of Wheeling creek; and it seems to be the purpose of the company to stop there in the construction of the main line until the more pressing need of branches and terminals in the city is supplied. The branch that runs down Wheeling creek, on the south side, by the land in question, and thence through the Chapline-Hill tunnel to Lower Wheeling, is well nigh complete; certainly, far enough to show its location. There is no complaint that the petition does not designate with sufficient certainty the real estate proposed to be taken. If there had been for the purpose of this proceeding any need of such map and profile, the court below could, and would have required its production; but we do not think that the failure to file it in the proper offices could be pleaded in bar of the right to have the commission awarded; and therefore we think that pleas Nos. 1 and 2 were properly rejected. Besides, it appears that this land is needed only for a station and a switch to connect it with the branch on the south side of the creek. Plea No. 4 avers of city. that the land sought to be condemned was so situated that it could not be used until the street had first been occupied, and that no permission to occupy the street had been obtained. This plea was properly rejected. The city of Wheeling may give its consent, but, if this property can

Permission to

Occupy street

not be obtained, it is not worth while to ask such consent. If the property is obtained, and no consent by the city be given, the property owner is not hurt, because the land condemned would then revert to the original owner. Chapter 54,869a, par. 9. The company cannot do everything at once; and if each condemnation or permission on the part of the city is made a condition precedent to every other one, then no property could be condemned at all. Besides that is a matter between the city and the railway company, and does not directly enter into this controversy.

certificate of

-Condition precedent.

Plea No. 5 avers that the railway company did not, within three months after its certificate of incorporation had been issued, cause the same, or a certified copy thereof, Failure to file to be delivered for record to the clerk of the Incorporation County court of Ohio county, in which its principal office and place of business is kept as required by section 20, chap. 54, Code, p. 508. This plea also was properly rejected, such recordation, for the reasons given in considering pleas Nos. 1 and 2, not being a condition precedent to the right to construct and for the additional reason that the same section provides that, "if such company fail therein, it shall be fined not exceeding $1,000. " Toledo Tie & Lumber Co. v. Thomas, 33 W. Va. 566, 32 Am. & Eng. Corp. Cas. 212. Plea No 6" denies that the railroad, for the purposes for which the land is sought to be condemned, is a branch or lateral road, as stated in the petition." This plea is obscure and uncertain in meaning; but, taking it to aver with sufficient certainty what defendant claims it is intended to aver,-that it is a branch of a branch, and therefore not a branch of a main line, it should have been rejected as immaterial; for nothing is clearer under our statute than that the railway company may legally construct a branch of a branch, or that two branches may have a common stem leading into the main line, provided neither exceeds 50 miles in length from such main line. Plea No. 7 alleges, in brief, that the plaintiff has abandoned the line which it was chartered to build, and has begun to build an entirely different line, for which it sought to condemn the property in controversy, without authority of law. Plea No. 3 avers that donment of the said parcels of land in said petition mentioned, and sought to be condemned are not, nor is either of them, necessary for the purposes of the petitioner's railroad. These pleas, Nos. 3, 6, and 7 were admitted, issues were made and joined thereon, and the jury found generally for the plaintiff, and specifically on each of these three pleas. It was proved that the road along the main line from the west bank

struct branch road.

Same-Aban

main line.

of the Ohio river to a point in the Wheeling Creek valley, called the "Peninsula," had been built, and there the company proposed to stop until, by the building of a branch line down Wheeling creek, it had made terminal facilities for the city of Wheeling; therefore it was not material to this inquiry where or how the main line was to run on from that point east, and it was not error to exclude such evidence. Again, the chief engineer of the railway company was asked by plaintiff why the work had been mainly done upon the line from the western boundary of the state to the peninsula, and from the peninsula, with the creek, southward. To this question defendant objected, but its objection was overruled. The answer was material under plea No. 7, as tending to show that the further extension of the main line was not abandoned, but only, for the reasons given, deferred until the terminal facilities in the city of Wheeling were shown to be practicable by actual construction, and the road. just put upon a solid and paying basis. It also tended to show that the one was a part of the main line, and the other going down the creek was a branch.

Instructions

It is admitted by counsel that all the instructions given to the jury do not appear in the record; therefore the court cannot say to what extent, if any, the instructions given and set out in the record were qualified by to jury. those given, but not set out. Seven instructions were on motion of plaintiff, and against the objection of the defendant, given to the jury, which are a part of this record, and are as follows: (1) If the jury believe from the evidence that the petitioner built and constructed its main line of railroad as designated and contemplated by its charter from the western boundary of the city of Wheeling to a point on the peninsula, it had and has the right to construct a branch or lateral line of railroad connecting with the main line at such point; and this, although the jury may further believe from the evidence that it ceased further work on the main line, and abandoned all intention of building and constructing further in an easterly direction, or towards the Pennsylvania state. line. (2) If the jury find from the evidence that the line of railroad constructed from the Ohio river near the Top mill to the peninsula is a portion of the main line of petitioner's railroad, as contemplated by its charter, they are instructed that the length of the line connecting with such main line at the peninsula, and running thence southwardly, is not decisive of the question whether such second line is or is not a branch or lateral road. Neither length nor direction enters into the definition of a branch or lateral' railroad. The only limit in this state as to length is the statutory one of 50 miles. (3) 47 A. & E. R. Cas.-3

If the jury find from the evidence that any substantial portion of the main line of the railroad contemplated by the charter of the Wheeling & Harrisburg Railroad Company has been built or constructed by the petitioner, their verdict should be in its favor upon the issue raised by the 7th plea. (4) If the jury find from the evidence that so much of the petitioner's railroad as has been constructed from the Ohio river near the Top mill to a point on the peninsula is a portion of the main line of such railroad, as designated and contemplated by the charter of the Wheeling & Harrisburg Railroad Company, then their verdict should be for the petitioner, the Wheeling Bridge and Terminal Railway Company, on the issue presented by the 7th plea filed by the defendant. (5) Even if the jury should believe from the evidence that so much of the petitioner's railroad as crosses Wheeling creek near the Whitaker mill is a branch railroad of a branch railroad, this will not warrant a finding to that effect, or for the defendant, on the issue raised by the 6th plea of the defendant. (6) While it is incumbent on the petitioner to show by a preponderance of the evidence that a necessity exists for the taking of the property described in the petition, such necessity is not to be regarded and treated as an imperative, but a reasonable, one, looking to the proper discharge by the petitioner of its duties to the public; and if the jury believe from the evidence that such a necessity exists, taking into consideration the present, and also the prospective, needs of the petitioner, within a reasonable time, and that it has not in this instance unreasonably exercised the discretion it possesses in locating its tracks, buildings, etc., then the verdict should be in its favor upon the issue presented by the 3d plea filed herein. (7) Railroad companies possess a large discretion as to the location of their tracks and buildings; and this discretion is not to be controlled if it has not been exercised unreasonably. And in this case, even if the jury should believe that lands other than those in question might or could have been found and acquired suitable for the petitioner's purposes, that fact would constitute no defense or objection to the present claim." In view of our statute on the subject, especially sections 66 and 69 of chap. 54, pp. 526, 527, instruction No. I propounds the law correctly as applicable to this proceeding; because under chap. 54, section 50, par. 9, p. 520, Ĉode, plaintiff" has the right to erect and maintain all necessary and convenient buildings and stations, fixtures, and machinery, for such connections, constructions, transfer accommodation, and use of passengers, freights, and business interest, or which may be necessary for the construction or operation and repair of said railroad, its track, roadway, and machinery, for the purposes of that part of the main line and branch already built," and

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