Continued.

tributory negligence may be
raised by demurrer. Favre v.
Louisville & N. R. Co. (Ky.),
594.
Presumption of ordinary care is
overthrown where there is di-
rect proof that ordinary dili-
gence was not used. Dewald
v. Kansas City, F. S. & G. R.
Co. (Kan.), 557.
CONVEYANCE.

Church property; deed of right of
way over, from members of
church who had no authority,
held not to authorize taking of
land. Macon & A. R. Co. v.
Riggs (Ga.), 40.

Grant of right of way including fee
in public highway.

Agreement

by company to reconstruct
highway on other land. Con-
tract held not to be against
public policy. Post v. West
Shore & B. R. Co. (N. Y.), 322.
Restoration of highway in consid-

eration of grant of right of way.
Damages for failure of company
to keep agreement held not ex-
cessive. Post v. West Shore &
B. R. Co. (N. Y.), 322.

CORPORATION.

Contract of corporation with di-
rectors. Lease of road con-
structed by them. See LEASE.
Lease of trackage rights. Cor-
porate powers. See LEASE.
Partial construction of road. As
to part of railroad completed
company may maintain its cor-
porate existence and franchise.
Wheeling B. & T. R. Co. v.
Camden C. O. Co. (W. Va.),
27.
Residence of railroad company.
Absence of president from state.
Residence of vice president.
Harper v. Newport News & N.
V. R. Co. (Ky.), 373 n.

CROSSING.

Condemnation by one railroad
company of right to cross an-
other. See EMINENT DOMAIN,
Property subject to condemnation.
Laying out highway across rail-
road track. Damages to which
company is entitled, 161 n.
Widening street. Damages to be
allowed railroad which had con-
structed its track over such.

Excessive damages for wrongful
expulsion of passenger. What
verdicts have been sustained,
and what set aside, 643 n.

$50 held excessive, for fail-
ure to carry passenger as
agreed. Eddy v. Harris (Tex.),
473.

$750 for expulsion of passen-
ger, held excessive. Georgia
R. & B. Co. v. Eskew (Ga.), 636.

- $5,246 not excessive for per-
sonal injuries. Southern Kan.
R. Co. v. Walsh (Kan.), 493.

$6,050 for severe personal
injuries held not to be. Mel-
lor v. Missouri P. R. Co. (Mo.),
450.

$10,000 verdict not disturbed,
plaintiff's foot having been am-
putated near ankle.
Olson v.
St. Paul & D. R. Co. (Minn.),
573.
Exemplary

damages allowed
where there is ejection of pas-
senger from moving train, on a
dark night. Fell v. Northern
Pac. R. Co. (C. C.), 622 n.

is

for expulsion of passenger.
not recoverable, unless undue
force, insult, or malice
shown. Tomlinson v. Wilming-
ton & S. C. R. Co. (N. Car.),
620.

for injury to passenger
caused by derailment, not con-
fined to cases where there is en-
tire want of care. Alabama G.
S. R. Co. v. Hill (Ala.), 501.

for injuries to passengers,
caused by use of rotten ties and
old rails. Alabama G. S. R.
Co. v. Hill (Ala.), 501.

for injuries to passenger,.
caused by defective track, 512 n.

for injuries to passenger not.
recoverable, where defendant's
officers and servants did not
know that track was so defect-
ive that accident was probable.
Richmond & D. R. Co. v. Vance
(Ala.), 512 n.

for wrongful expulsion of
passenger, may be given when
malice or oppression are shown.
Louisville, N. A. & C. R. Co. v.
Wolfe (Ind.), 630.

DAMAGES-Continued.
Wounded feelings; compensation
for, should be adjusted for all
the circumstances. Georgia R.
& B. Co. v. Eskew (Ga.), 636.
Personal injuries. Failure of
plaintiff's physician to call in
surgeon to perform operation
has no bearing on right of re-
covery, and does not lessen
damages. Alabama G. S. R.
Co. v. Hill (Ala.), 501.

Loss of earnings; considera-
tion of, where evidence as to
has been admitted but where
such loss has not been specially
pleaded. Mellor v. Missouri P.
R. Co. (Mo.), 450.

DEATH.

Contributory negligence. In ac-
tion for death where contribu-
tory negligence is shown by
plaintiff's testimony, he does
not make out a prima facie case.
Dewald v. Kansas City, F. S. &
G. R. Co. (Kan.), 557.

U. S. mail clerk killed while on
railroad train. Statutory pen-
alty for death may be recovered.
McGoffin ย.
Missouri P. R.

Co. (Mo.), 489.
DEPOTS. See STATIONS.
DIRECTORS.

Contract of corporations with di-
rectors. See LEASE.

Election of directors. See OFFI-

Power to make contract.

CERS.

OFFICERS.

DONATION. See SUBSCRIPTION.
ELECTION. See OFFICERS.
ELECTRIC RAILWAY.

See

Authority to condemn lands. See
EMINENT DOMAIN, Exercise of
right.

Electric street railway. Right of

abutting lot owners to compen-
sation. See STREET RAILWAYS.
EJECTMENT.

Action may be maintained against
railroad to recover roadbed

used by company and taken
without authority or consent.
Jacksonville, T. & K. W. R. Co.
v. Adams (Fla.), 206.
Adverse possession under color

of title. Defective condemna-
tion proceedings. Cogsbill v.
Mobile & G. R. Co. (Ala.), 211 n.
Ejectment against railroad com-
panies, 211 n.

EMINENT DOMAIN. See ADVERSE
POSSESSION; EJECTMENT; LOCA-

TION.

Railroads in streets and highways.
Right to compensation. See
STREETS AND HIGHWAYS.
Public Use.

Union depot company; statute
conferring power of eminent
domain on, held constitutional.
Fort St. U. D. Co. v. Morton
(Mich.), 41.

Exercise of Right.

Additional servitude. No author-
ity to condemn land already
taken for purpose of bridge.
Payne v. Kansas & A. V. R. Co.
(C. C.), 228.

Authority of small railroad com-
panies promoted partially as
private enterprises, 68 n.
Certificate of incorporation; de-
livery of, for record held not a
condition precedent to exercise
of right to condemn. Wheeling
B. & T. R. Co. v. Camden C. O.
Co. (W. Va.), 27.
Electric railway company held
not authorized to condemn
private_property for right of
way. Thomas & Houston Elec-
tric Co. z. Simon, (Or.), 51.

- Authority to exercise right
of eminent domain, 57 n.
Express authority. Power can be
exercised only when expressly
or impliably granted, and must
be exercised in manner granted.
Payne. Kansas & A. V. R.
Co. (C. C.), 228.

Location of road within city as
directed by city council; pow.
er to condemn land outside of
such location. Tudor v. Chica-
go & S. S. R. T. R. Co. (Ill.),
70 n.
Obtaining material. Condemna-
tion of land for purpose of ob-
taining gravel and other mate-
rials. When the petition should
be denied. Wisconsin Cent. R.
Co. v. Kneale (Wis.), 70 n.
Prior negotiation for land as pre-
requisite to right to condemn.
See Procedure, post.

Question for court; authority to
condemn land is, and and it is
error to submit question to jury.
London v. Sample L. Co. (Ala.),
69 n.

Security for compensation. Com-

EMINENT DOMAIN.

Exercise of Right-Continued.
pany's right to condemn proper-
ty not conditional on security
given being adequate for all fu-
ture time. Wallace v. New
Castle N. R. Co. (Pa.), 11I.
Single exercise of right of eminent
domain does not exhaust
the grant. Ewing v. Alabama
& V. R. Co. (Miss.), 71 n.
Small railroad constructed for
carrying freight to and from
limekilns between two places,
and goods to and from stores,
being eight miles in length, held
entitled to right of eminent do-
main by legislative grant.
Farnsworth v. Lime Rock R.
Co. (Me.), 64.

Station grounds and side tracks:
railroad company held entitled
to condemn land for. Ewing v.
Alabama & V. R. Co. (Miss.),
70 n.
Taking of wood, gravel, etc.;
power to condemn lands under
charter authorizing. Richmond,
F. & P. R. Co. v. Knopff (Va.),
70 n.
Union depot company; title of
act held sufficient to warrant
conferring power of eminent
domain upon. Fort St. U. D.
Co. v. Morton (Mich.), 41.
Widening existing line of railway.
Limits of deviation. English
Railway Clauses Consolidation
Act. Finck v. London & S. W.
R. Co. (Eng.), 69 n.
Property Subject to Condemna.
tion.

Church property is subject to con-
demnation for railroad purposes.
Macon & A. R. Co. v. Riggs
(Ga.), 40.

Crossing of two roads.

Condem-

nation by one railroad of cross-
ing over another, 97 n.

Failure to designate in peti-
tion manner of crossing. What
privilege or easement is acquir
ed National Docks & N. J. J.
C. R. Co. v. State (N. J.), 87.

Interposition of equity where
conflict occurs between two
companies in the exercise of the
easement condemned. National
Docks & N. J. J. C. R. Co. v.
State (N. J.), 87.

Manner of crossing may be

EMINENT DOMAIN.
Property Subject to Condemna-
tion-Continued.

designated by condemning com-
pany and compensation made
for single manner designated.
National Docks & N. J. J. C. R.
Co. v. State (N. J.), 87.
Crossing of two roads. Railroad
company may condemn right to
cross lands of another. Na-
tional Docks & N. J. J. C. R.
Co. v. State (N. J.), 87.

Railroad crossed must yield to
interference which will not de-
stroy reasonable use of its road.
National Docks & N. J. J. C. R.
Co. v. State (N. J.), 87.

What is acquired in condemn-
ing crossing. Place of crossing
remains in common use of both
companies. National Docks &
N. J. J. C. R. Co. v. State (N.
J.), 87.

When legality of plan and
manner of crossing may be re-
viewed by supreme court on
certiorari. National Docks &

N. J. J. C. R. Co. v. State (N.
J.), 87.

Land of corporation not needed
for corporate purposes may be
taken whether it is acquired by
condemnation or by purchase.
Cincinnati, S. & C. R. Co. v.
Belle Centre (Ohio), 72.
Lands under navigable waters
may be condemned.
Kerr v.
West Shore R. Co. (N. Y.),
69 n.
Located route; lands sought to
be condemned must be within
so that they shall be capable of
definite ascertainment. Na-
tional Docks & N. J. J. C. R.
Co. v. State (N. J.), 87.
Market company; property of, is
not exempt from condemnation
under the right of eminent do-
main by a railroad company.
Twelfth St. M. Co. v. Philadel-
phia & R. T. R. Co. (Pa.), 98.
Municipal corporation cannot take
for a street land used for a rail-
road track; such proceedings
will be enjoined. Seymour v.
Jeffersonville, M. & I. R. Co.
(Ind.), 38.

may take land of railroad
company not needed or used
for company's business. Cin-

EMINENT DOMAIN.

Property Subject to Condemna-
tion-Continued.

cinnati, S. & C. R. Co. v. Belle
Centre (Ohio), 72.
Property already taken under
power of eminent domain can-
not be taken for another use
without express authority. Cin-
cinnati, S. & C. R. Co. v. Belle
Centre (Ohio), 72.

Railroad land. Power of one
railroad company to condemn
land of another company ac-
quired by purchase and not by
eminent domain. In re Provi-
dence & W. R. Co. (R. I.), 97 n.
Railroad track; appropriation of,
lengthwise for highway, 39 n.
Water company; authority of, to
condemn property of railroad
company. Old Colony R. Co.
Framingham Water Co.
(Mass.), 86 n.
Right to Compensation.
Act of congress giving company
right of way through public
land. Using land for purpose,
not authorized, gives right to
compensation. Payne v. Kan-
sas & A. V. R. Co. (C. C.), 228.
Additional servitude, must be
paid for. Payne v. Kansas &
A. V. R. Co. (C. C.), 228.

Cherokee citizen held en-
titled to compensation for.
Payne v. Kansas & A. V. R.
Co. (C. C.), 228.
Additional use created by con-
struction of bridge, held to de-
mand additional pay. Payne z.
Kansas & A. V. R. Co. (C. C.),
228.

Bond as security. After bond
has been approved and filed,
landowner cannot restrain com-
pletion of road on ground that
both company and sureties have
become insolvent. Wallace v.
New Castle N. R. Co. (Pa.),

III.

Cause of action against company;
landowner does not have, for
damages awarded until com-
pany makes entry or accept-
ance. Manion 2. Louisville, St.
L. & T. R. Co. (Ky.), 107.
Limitation of actions to recover
compensation, 164 n.

to recover damages to land
not taken where the railroad

EMINENT DOMAIN.
Right to Compensation-Contin-
ued.

Texas

has been constructed.
W. & R. Co. v. Cave (Tex.),
164 n.
Limitation. Action to have dam-
ages assessed held neither an
action of trespass, nor one on a
liability created by a statute,
within statute of limitations.
Land v. Wilmington & W. R.
Co. (N. Car.), TỐI.
Private property under U. S. con-
stitution can be taken for pub-
lic use only by making just
compensation. Payne v. Kan-
sas & A. V. R. Co. (C.C.), 228.
Purchaser of land; right of, to
compensation subsequent to its
Occupation by a railroad but be-
fore condemnation. San An-
tonio & A. P. R. Co. v. Ruby
(Tex.), 168 n.
"Secure." Word in constitution
means that it must be made
reasonably sure that property
owner will be able to collect his
damages. Wallace v. New Cas-
tle N. R. Co. (Pa.), III.
Security for compensation. What
is sufficient. Bonds, 115".
Security. Statute providing that
landowner might require com-
pany to give security to select-
men of town held sufficient.
Old Colony R. Co. v. Framing-
ham W. Co. (Mass.), 115 #.
Sufficient sureties" in statute
mean such sureties as are rea-
sonably safe at the time they
are taken. Wallace v. New Cas-
tle N. R. Co. (Pa.), 111.
Right and Title Acquired.
Additional servitude; use beyond
the purpose of first condemna-
tion creates, and there may be
taking which has not been paid
for. Payne v. Kansas & A. V.
R. Co. (C. C.), 228.

Bridge. Use of lands condemned
for right of way for bridge and
approaches, is not authorized
by first condemnation. If ad-
ditional burden is created, land
must be condemned again.
Payne . Kansas & A. V. R.
Co. (C. C.), 228.
Company permitting third party
to use premises condemned for
depot purposes held to change

1

212.

Consolidation. Company whose
charter expired in fifty years
was consolidated with another
company which succeeded to its
rights and franchises; held that
the right of way acquired did
not revert at end of charter pe-
riod. Miner v. New York C. &
H. R. R. Co. (N. Y.), 212.
Depot ground; company con-
demning land for, does not
take a fee. Lyon v. McDonald
(Tex.), 217.

Duration of easement. Estate ac-
quired in lands appropriated not
limited to term of fifty years
which is the charter period.
Miner v. New York C. & H. R.
R. Co. (N. Y.), 212.
Easement.

Defendant held to
have acquired such an easement
as act of congress authorized.
Payne v. Kansas & A. V. R.
Co. (C. C.), 228.
Owner of fee having adjacent lot
has no right to passage over
railroad grounds, except at pub-
lic crossing. Lyon v. McDon-
ald (Tex.), 217.

Right of railroad company to per-
mit third party to use premises,
224 n.

Damages.

Additional use by construction
of bridge, held to create addi-
tional servitude, which demands
additional pay. Pavne v. Kan-
sas & A. V. R. Co. (C. C.), 228.
Amount of $400 awarded for ap-
propriation of 11 acres, wood
destroyed, and fencing required.
Street v. New Orleans, Ft. J. &
G. I. R. Co. (La.), 156 n.
Benefits; owner's damages can-
not be diminished by deduction
of. Interstate C. R. Co. v.
Simpson (Kan.), 155 n.

In Colorado it is error to
withdraw from the jury evi-

dence as to benefits. Colorado
Cent. R. Co. v. Humphreys
(Colo.), 155 n.
Consequential damages; consti-
tutional provision making rail-
roads liable for. Previous char-
ter contract. Exemption from
future general legislation.
Pennsylvania R. Co. v. Miller
(U. S.), 154 n.
Crossing of two roads. Measure
of damages where condemning
company fails to define in its
petition how it will cross, and
seeks to condemn general right
to cross. National Docks & N.
J. J. C. R. Co. v. State (N. J.),
87.

Double damages.

Instruction

given held not to authorize find-
ing of damages twice for same
thing. Louisville, St. L. & T.
R. Co. v. Barrett (Ky.), 169.
Evidence. Admissibility on ques-
tion of damages. See Evidence,
infra.
Excessive.

Arbitrary reduction
of verdict by trial court. Judg-
ment reversed. Parsons & P..
R. Co. v. Montgomery (Kan.),
156 n.

Condemnation of right of
way for telegraph company.
Award not disturbed as exces-
sive. Postal Tel. C. Co. v. Ala-
bama & V. R. Co. (Miss.), 156 n.

Court will not disturb ver-
dict where it is uninfluenced by
passion or prejudice. Louisville
& N. R. Co. v. Ingram (Ky.),
156 Battrell v. Ohio River R.
Co. (W. Va.), 156 n.

Supreme Court will only set
aside award where it is clear
that it is against the evidence.
Fort St. U. D. Co. v. Jones
(Mich.), 157 n.

Verdict based on lowest esti-
mate of witnesses not set aside.
Nebraska & C. R. Co. v. Scott
(Neb.), 157 n.

Verdict for greater amount
than value of whole land with
improvements set aside. Louis-
ville & N. R. Co. v. Asher (Ky.),
156 n.

Verdict larger than some es-
timates and smaller than others,
not disturbed as excessive.