and from the limekilns in Thomaston and Rockland, and goods to and from stores in the latter place, connecting with the Knox & Lincoln Railroad and running over a portion of its track under a contract between the two corporations, being eight miles in length, of standard gauge, operated by steam power, and costing nearly a half million dollars obtained from the sale of stock and bonds. REPORT from Supreme Judicial Court, Knox County. The Lime Rock Railroad Company having applied to the county commissioners for Knox county by petition dated June 18, 1888, to assess the damages caused by their taking the lands of the appellants, under their charter, for railroad purposes, notice was accordingly given. The appellants appeared under protest, moved to have the petition dismissed, and, reserving all objections, etc., denied the commissioners' jurisdiction, and contested their right to act upon the petition for the following, among other, reasons: "That under the constitution and laws of Maine the said company was not and is not a corporation, and under said laws not authorized to procure a condemnation of said land in any form. "That the individuals or company doing business under the name of the Lime Rock Railroad Company have never duly organized as a corporation under said constitution and laws. “That the alleged railroad which said individuals or company propose to construct across the respondents' land is not for such use as gives them the right or authority under said laws to procure a condemnation thereof; and that they had not filed any location of said road in form or substance as required by law, before the date of this petition. 66 That, whether said petitioners are a corporation or not, all of the proceedings taken to obtain title to or right to cross said premises are under the said constitution and laws of Maine invalid. That said company has no right to construct a railroad over respondents' land, and that said company had no right or authority under said laws to procure a condemnation of land for that or any other purpose." commissioners overruled the motion to dismiss, and made, on October 17, 1888, an award of the damages sustained by the appellants, who took J. H. Montgomery and W. H. Fogler, for appellants. PETERS, C. J.-The charter of the railroad company whose acts are called in question in this controversy was granted by 47 A. & E. R. Cas-5 Acceptance and amendment of charter. the legislature in 1861, amended in 1873, and again in 1889. The location was filed and the road built in 1888. It is argued against its legality that the original charter became lost by non-acceptance before the constitutional amendment of 1875, requiring railroad and other corporations to be formed under general laws, and that any act of revivor passed since 1875 is unconstitutional, in view of decisions of the supreme court of the United States, and especially by force of the doctrine of the case of Oregon Ry. & Ñav. Co. v. Oregonian Ry. Co., 130 U. S. 1, 39 Am. & Eng. R. Cas. 176. The charter and amendments were expressly accepted by the corporation in 1889, but the facts clearly enough in dicate an implied acceptance before that time, and prior to the date of the constitutional amendment. This court has held that no vote of the corporation is necessary, and that acceptance may be implied by circumstances. Bangor, O. & M. R. Co. v. Smith, 47 Me. 34. The charter in question is for peculiar purposes, and no class of persons but those incorporated would want it. The charter was asked for, not tendered to them. They desire it for future use, hoping and expecting all the time that the day would be at hand when the road would be built. A very strong evidence of acceptance is that, in 1873, they applied for an amendment of the charter. Subsequent events confirm that evidence. The fact of spending several hundred thousand dollars in constructing the road confirms it. Late events show the earlier intention. The constitutional amendment does not apply to legislative amendments of charters granted before 1875. The legislature, having granted a charter before 1875, may amend it after that date, the amendment being germane to the original act. A further objection urged against the validity of the charter is that the company was not organized within four years after the date of its incorporation, forfeiture following for such lapse by the provision of Rev. St. chap. 1, § 6, art. 26. The answer is that the legislature waived forfeiture by the amendments which it granted. It is objected against the validity of the proceedings of the corporation in its application to have the land damages as mainAgreement of parties. certained, that the application does not allege that Eminent do- the parties themselves could not agree upon the amount of damages, the charter providing for an assessment in case of disagreement. The presumption is that parties cannot agree who do not agree. Were the proceedings at common law, it would be proper pleading to insert in the petition a negative averment to satisly the condition embodied in the charter. But it would hardly seem necessary in proceedings before county commissioners, and, if it were, the omission could readily be supplied by amendment. road to ex The question of the case evidently is whether the principle of eminent domain applies to the purposes for which the charter was granted. Is it an enterprise Right of rail. where the public good is sufficiently subserved to ercise power justify the condemnation of private property by the of eminent corporation under legislative permission for its use? domain. There must be enterprises occupying such middle ground on this question so near to the boundary line between public use and private use that it may be difficult to say on which side of the line the facts would place them. There must be instances at either extreme, and all the way between extremes. We think the enterprise designed by the company which is virtually the party in this case, though not so significant an example as many railroad enterprises, falls on the side of public use. It is of that stamp. It is not deniable that a scheme may be more profitable to private owners than it is valuable to the public, and still be a public enterprise. Capitalists are not expected to embark in enterprises which are of public concern, unless there be an adequate private gain. It has frequently been determined that the public use may be limited to place and persons. Not many, compared with the great body of men, participate directly in the use of the telegraph and telephone, the common sewers, public ferries, or the railroads. A street railroad may be a benefit to some persons and work an injury to others. But the community as a body is benefited by such enterprises. Great liberality has prevailed in granting the use of the public power for the construction of railroads and all kinds of ways. The statutes of our state afford facilities for laying out town ways and private ways, and go so far as to confer power on municipal officers to lay out over private land winter-ways simply for the transportation of merchandise, hay and grain, and lumber. The charter of the Lime Rock Railroad Company declares the purpose of the corporation to be "the transportation of limestone from the quarries in the city of Rockland and town of Thomaston to the various limekilns in said city and town, together with other freight, with convenient branches to accommodate such kilns, including all quarries and kilns now opened or that may be hereafter opened in said city and town;" and there are general provisions such as are usually inserted in railroad charters, concerning organization, rates, obligations, and liabilities to be assumed. The road is not designed to carry passengers, it is said. Neither is a street railroad designed to carry freight, each being, however, a common carrier in its sphere. It is also said by counsel that the charter does not provide that the road shall begin or end at any railroad or highway, and that we cannot go beyond the charter to ascertain that such termini were intended. We should suppose that details of location would not usually be inserted in a charter. While exact designs are not paraded in the charter itself, they are supposed to have been sufficiently represented to the legislature as a justification for its action. The plan of location produced as a part of the case shows that the road connects with the Knox and Lincoln Railroad, running over a portion of its track, crossing several highways in the course of its route, running in the rear of numerous stores in Rockland, and making close connections with them for delivery of freight, entering the city of Rockland at its south end and terminating at the north end, so as to become a link in a projected line of railroad running northerly to Camden and elsewhere. It has a transportation contract with the Knox & Lincoln Railroad Company for a term of years. The road is 8 miles in length, to be 10 to 12 miles when completed, of standard gauge, is operated by steam power, has a capital stock of $300,000 and a bonded indebtedness of $200,000, has in present use 2 locomotives and 265 freight-cars, and transports rock from 45 different quarries, owned by 75 persons and firms. When completed the capacity of the road and its business will be very much increased, and the road is designed to reach every kiln and quarry in the vicinity of its general route. The public usefulness of such an enterprise may be seen at a glance. The city of Rockland and town of Thomaston are greatly benefited thereby. It will give development and add value to the principal business of the two places, and increase the prosperity of their people. We have not deemed it best to fortify our positions by authorities, being content to cite a single case, like this case in some respects, but occupying a position considerably in advance of the doctrine promulgated in this opinion,-Talbot v. Hudson, 16 Gray, 417. In that case the general question is thoroughly examined. The case to stand for the assessment of damages. WALTON, VIRGIN, LIBBEY, HASKELL, and WHITEHOUSE, JJ., concurred. Authority of Small Railroad Companies Promoted Partially as Private Enterprises to Exercise Power of Eminent Domain.-Colorado E. R. Co. v. Union Pac. R. Co. (C. C.), 44 Am. & Eng. R. Cas. 10, note 25. Sufficiency of Petition in Condemnation Proceedings as to Inability of Parties to Agree. See Cory v. Chicago, B. & K. C. R. Co. (Mo.), 44 Am. & Eng, R. Cas. 183; Reed v. Ohio, etc. R. Co. (Ill.), 36 Id. 234; Lake Shore, etc. R. Co. v. Cincinnati, etc. R. Co. (Ind.), 37 Id. 430; Bowman v. Venice, etc. R. Co. (Ill.), 14 Id. 338. Authority to Condemn Land is a Question for the Court. In London v. Sample Lumber Co. (Alabama, Nov. 6, 1890), 8 So. Rep. 281, it was held that the court erred in submitting to the jury the determination of the power of the petitioner to take land for a railroad right of way. "This is a legal question which it was the duty of the court to decide.' Lands Under Navigable Waters May be Condemned.--In_Kerr v. West Shore R. Co., (New York Ct. of App. June 2, 1891,) 27 N. E. Rep. 833, it was held not to be a valid objection to proceedings taken by a railroad company to acquire land for the purposes of its incorporation, that it is under the waters of a navigable stream. The titles which individuals may have acquired in such lands by a grant from the state, may be taken by the exercise of the power of eminent domain, equally with the upland. Citing In re New York, etc. R. Co., 77 N. Y. 248; In re New York, etc. R. Co., 27 Hun, (N. Y.), 57. Affirmed 89 N. Y. 453. Widening Existing Line of Railway-Limits of Deviation-English Railway Clauses Consolidation Act.--Section 15 of the Railways Clauses Consolidation Act, 1845, as to the distance to which a railway company may deviate from the line delineated on the parliamentary plans, and the decisions under that section to the effect that the distance is to be measured from the medium filum via of the line of railway actually laid down to that of the line delineated on the plans, apply only to the construction of a new line of railway, and not to the widening of an existing line. By a special act a railway company were authorized to widen their existing railway, and on the parliamentary plans the existing line of railway was delineated, and there were dotted lines on either side indicating the limits of deviation. The company constructed a portion of their widening outside the limits shown by one of the dotted lines and upon land taken by them from the plaintiff, who brought this action against them for an injunction, but did not show that he had sustained any special damage by reason of their acts. The land of the plaintiff taken by the company was comprised in the parliamentary plans and books of reference. It consisted of two dwelling-houses and their curtilages. The company first gave notice to take such parts of them as were within the limits of deviation, but after receiving a notice from the tenants under the 92nd section of the Lands Clauses Act, requiring them to take the whole of the tenements, and also a letter from the landlord refusing to give up any part which he was not compelled to sell, they gave a fresh notice to take the remainder of the two tenements: Held, by KAY, J., upon the construction of the act and reference to the plans, that the company were bound to construct their widening wholly within the limits of deviation, and had exceeded their powers in constructing it outside those limits: But held, by KAY, J., and by the Court of Appeal, that assuming that the company had exceeded their powers in the construction of the widening, yet as the land taken was included in the parliamentary plans and no special damage to the plaintiff had been proved, the action could not be maintained. Held, also, that as the two houses and curtilages were included in the parliamentary plans and were under the circumstances reasonably necessary to be taken for the completion of the company's works, the company had the power to take them, although they were outside the limits of deviation, and that the notices were valid, notwithstanding the refusal of consent on the part of the landlord. Finck v. London & Southwestern R. Co., L. R. 44 Ch. Div. 330. |