LEASE-Continued.

Co. v. Sellers (Pa.), 372 n.
Liability of railroad company for
torts of lessee, 371 n.
Ratification of lease voidable on
account of fraud. Action to re-
cover rent by stockholders of
leased road. Complaint erro-
neously dismissed. Barr . New
York, L. E. & W. R. Co. (N.
Y.), 329.
Trackage rights.

Execution of

contract held sufficient to bind
lessor company, having been
signed by officers and author-
ized by stockholders. Chicago,
R. I. & P. R. Co. v. United Pac.
R. Co. (Neb.), 340.

Joint possession not interfer-
ing with use of track by lessor;
contract not ultra vires. Chica-
go R. I. & P. R. Co. v. United
Pac. R. Co. (Neb.), 340.

Specific performance not re-
fused on ground that rental was
inadequate or that disastrous
competition would result. Chi-
cago, R. I. & P. R. Co. v. United
Pac. R. Co., (Neb.), 340.

Specific performance of con-
tract for use of Union Pac.
bridge by Rock Island railroad
enforced. Chicago, R. I. & P.
R Co. v. United Pac. R. Co.
(Neb.), 340.

Tracks and terminals; construc-

tion of contract for use of. Chi-
cago, R. I. & P. R. Co. v. Den-
ver & R. G. R. Co. (C. C.), 358 #.
Ultra Vires contract; lessee held

not entitled to alleged, in an-
swer to bill for accounting and
return of property. Manchester
& L. R. Co. v. Concord R. Co.
(N. H.), 359-

LICENSE.

Licensee on train. See PAS-
SENGERS.

LIMITATION OF ACTIONS.
Action to have damages assessed
for taking land held not an ac-
tion of trespass, nor one on a
liability created by a statute,
within statute of limitations.
Land v. Wilmington & W. R.
Co. (N. Car.), TỐI.
Eminent domain. Limitation of
actions to recover compensation,
164 n.

Limitation of actions to re-
cover damages to land not

Filing map and profile held not a
condition precedent to appoint-
ment of commissioners to as-
certain compensation.
Wheel-
ing B. & T. R. Co. v. Camden,
C. O. Co. (W. Va.), 27.
Legal location; engineer alone
cannot make, so as to give com-
pany title. Williamsport & N.
B. R. Co. v. Philadelphia & E.
R. Co. (Pa.), 224.
Location of railroad; rights of
rival railroad companies over
located line, 228 n.

Location of road within city as
directed by city council; power
to condemn land outside of such
location. Tudor v. Chicago &
S. S. R. T. R. Co. (III.), 70 %.
Pleading. When validity of lo-
cation is put in issue by one
company to restain another
company from locating its road
over same land. Williamsport
& N. B. R. Co. v. Philadelphia
& E. R. Co. (Pa.), 224.
Preliminary survey which has
never been adopted does not
constitute legal location giving
company priority over other
companies. Williamsport & N.
B. R. Co. v. Philadelphia & E.
R. Co. (Pa.), 224.

Title by location as against land-
owner and in favor of company
is only conditional. Williams-
port & N. B. R. Co. v. Phila-
delphia & E. R. Co. (Pa.), 224.
Title by location as against third
persons and rival corporation is
complete. Williamsport & N.
B. R. Co. v. Philadelphia & E.
R. Co. (Pa.), 224.
MALICIOUS PROSECUTION.
Theft of ties. Malicious prose-
cution by railroad company.
Probable cause. Chicago, B. &
Q. R. Co. v. Kriski (Neb.),
373 #.

Independent contractor; employe
of, working on bridge held not
to be servant of railroad com-
pany. Contractor alone liable
for his injury. Bibb's Adm'r

v. Norfolk & W. R. Co. (Va.),
651.

Passengers; injury to, through
torts of servants. See PASSEN-
GERS, Torts of servants.
Street railway companies are not
liable for wilful torts of servants
outside scope of employment.
Laffite v. New Orleans C. & L.
R. Co. (La.), 645.
MECHANIC'S LIEN.

Acquisition. Lien need not be ac-
quired on every part of road.
If statute is complied with lien
is obtained. Farmers' L. & T.
Co. v. Canada & St. L. R. Co.
(Ind.), 271.

Action to enforce decree held not
to have been an interlocutory
one, and the parties were bound
thereby. Farmers' L. & T. Co.
v. Canada & St. L. R. Co. (Ind.),
271.

Affidavit held insufficient in stat-
ing to and for whom labor and
material were supplied. Flem-
ing v. St. Paul C. R. Co.
(Minn.), 290.

Claim of lien for articles not sub-

ject to lien. Court will permit
necessary segregation. Gor-
don H. Co. v. San Francisco &
S. F. R. Co. (Cal.), 293.
Description of property not suffi-
cient where it is stated to be a
line of street railway owned by
defendant. Fleming V. St.

! MECHANIC'S LIEN-Continued.
Paul C. R. Co. (Minn.), 290.
Distribution of insufficient fund
among lien holders. Right of
holder of general lien to com-
plain. Farmers' L. & T. Co. v.
Canada & St. L. R. Co. (Ind.),
271.
Enforcement of mechanic's lien by
equitable proceedings. Amount
awarded by decree. Damages.
St. John's & H. R. Co. v. Bar-
tola (Fla.), 293 n.

Fund in court; mechanic awarded
claim in full from, cannot com-
plain because it was not made
payable out of allowance made
to another. Farmers' L. & T.
Co. v. Canada & St. L. R. Co.
(Ind.), 271.

Lumber sold sub-contractor for
erection of shanties not within
statute granting lien. Stewart
Chute L. Co. v. Mo. Pac. R.
Co. (Neb.), 686.
Materials supplied to contractors
for the construction of railroads,
688 n.

Mortgage; priority of mechanic's
lien over, 286 n.

Mortgage of road not yet built is
junior to mechanic's lien, un-
less bondholders had no notice
and hold bona fide. Farmers' L.
& T. Co. v. Canada & St. L. R.
Co. (Ind.), 271.

Notice in county where mater-
ial was furnished or work done;
filing of, creates lien on entire
road. Farmers' L. & T. Co. v.
Canada & St. L. R. Co. (Ind.),
271.

Railroad constructed by individ-
uals owning it as a co-partner-
ship; lien may exist upon.
Brown v. Buck (Ark.), 295 n.
"Railroad or any other struc-

ture," in statute, held not to in-
clude street railway. Front
Street C. R. Co. v. Johnson
(Wash.), 287.

Road as entirety; contractor's lien
is upon, under Ga. statute.
Lien cannot be enforced against
part of railroad. Farmers' L.
& T. Co. v. Candler (Ga.), 296.
mechanic's lien attaches to,
286 n.
Sale of road.

Railroad must be
sold as entirety to enforce lien.

Farmers' L. & T. Co. v. Canada

MECHANIC'S LIEN-Continued.
& St. L. R. Co. (Ind.), 271.
Sale of road and transfer of lien
to fund derived from sale.
Farmers' L. & T. Co. v. Canada
& St. L. R. Co. (Ind.), 271.
Statute making railroads subject
to lien held not unconstitution- |
al on account of title and sub-
ject of act. Kansas City & O.
R. Co. v. Frey (Neb.), 295 n.
Street railway; lien for labor up-
on, not maintainable under stat-
ute. Front Street C. R. Co. v.
Johnson (Wash.), 287.

mechanic's lien upon, 290 n.
Sub-contractor; laborer or mater-
ial man delivering ties is not,
within meaning of law. Farm-
ers' L. & T. Co. v. Canada & St.
L. R. Co. (Ind.), 271.
Sub-contractor's lien. Fact that
materials were delivered out-
side of state held immaterial.
Thompson v. St. Paul C. R. Co.
(Minn.), 286 n.
Time of filing mechanic's lien,
295 n.

Claim filed within proper
time where obligation of con-
tractor was not extinguished.
What is proper to count as part
of the work. Gordon H. Co. v.
San Francisco & S. F. R. Co.
(Cal.), 293.
Verdict describing road held not
to set up a lien on whole rail-
road, but upon part only. Farm-
ers' L. & T. Co. v. Candler
(Ga.), 296.
Verdict and judgment; sufficiency
of. Lien on specified part of
railroad. Farmers' L. & T. Co.
v. Candler (Ga.), 296.
MINES AND MINERALS.

Condemnation of "prospect" in
mineral lands; opinion evidence
as to value. See EMINENT Do-
MAIN, Evidence.

Condemnation of right of way
across mining lands. Damages.
See EMINENT DOMAIN, Damages.
MISTAKE. See EQUITY.
MORTGAGE.

Mechanic's lien; priority of. See
MECHANIC'S LIENS.
MUNICIPAL CORPORATIONS.
Condemnation of railroad track
for city street. See STREETS

AND HIGHWAYS.

Electrical street railways. Laying

400.

owning majority of stock,
cannot contract for construction
of road. Allemong v. Simmons
(Ind.), 400.
Election of directors. Defendant
company held subject to law
allowing stockholders to cumu-
late their votes. Right of stock-
holders enforced by mandamus.
Cross v. West Virginia C. & P.
R. Co. (W. Va.), 381.
Residence of railroad company.
Absence of president from state.
Residence of vice president.
Harper v. Newport News & N.
V. R. Co. (Ky.), 373 n.
Service of process. See that title.
PARENT AND CHILD.

Action by parent to recover dam-
ages for injury to child. Con-
tributory negligence of parents
in permitting child to go in
dangerous position. Avey v.
Galveston, H. & S. A. R. Co.
(Tex.), 565 n.

PASSENGERS. See BAGGAGE; SLEEP-
ING CARS; TICKETS AND FARES.

Who are.

Employes of company borrowing
car and engine and meeting with
accident, held not to have been
passengers. Davis v. Chicago,
St. P. M. & O. R. Co. (C. C.),
457 n.

Express messenger is a passen-
ger. Effect of stipulation lim-
iting carrier's liability between
express company and railroad
company. Brewer v. New York,
L. E. & W. R. Co. (N. Y.),
485.

on railroad train; stands in
relation to passenger, 489 n.
Fraud; person inducing conduct-
or to carry him without charge,
is guiity of, and cannot claim
rights of passenger. McVeety
v. St. Paul, M. & M. R. Co.
(Minn.), 471.

Man walking towards station with
intention of buying ticket is not
a passenger. June v. Boston &
A. R. Co. (Mass.), 533 n.
Old employes accepting conduct-
or's invitation to ride on freight
train without payment of fare.
Liability of company for injury.
Powers v. Boston & M. R. Co.
(Mass.), 472 n.

Postal clerk. United States mail
clerk in postal car, is a passen-
ger so far as company's duty to
carry him is concerned. Mellor
v. Missouri P. R. Co. (Mo.),
450.

in U. S. mail car, is entitled
to recover for injuries received.
Gulf C. & S. F. R. Co. v. Wil-
son (Tex.), 491 n.

occupies the position of pas-
senger. Statutory penalty may
be required for his death. Mc-
Goffin v. Missouri P. R. Co.
(Mo.), 489.
Traveler taking seat in freight
caboose without buying ticket.
Declaration held not to show
relation of passenger and car-
rier. Powell v. East Tenn., V.
& G. R. Co. (Miss.), 457 n.
Duty to Carry.
Damages; $50 held excessive, for
failure to carry passenger as
agreed. Eddy v. Harris (Tex.),
473.

Failure to stop at station. The

PASSENGERS.

Duty to Carry-Continued.
fact that there was no more
room on train will not excuse
company, if it could have pro-
vided more accommodations.
Purcell v. Richmond & D. R.
Co. (N. Car.), 457.
Failure to stop at station for pas-
senger waiting for regular train.
Company liable for punitive
damages. Purcell 7. Rich-
mond & D. R. Co. (N. Car.),
457-

to take on passengers. Ac-
tion for tort. Sufficiency of
complaint. Purcell . Rich-
mond & D. R. Co. (N. Car.),
460 n.

Passenger left owing to failure of
train to start from platform of
station. Special regulations.
Connell v. Mobile & O. R. Co.
(Miss.), 461 n.
Presumption of Negligence.
Collision; case of prima facie neg-
ligence arises in case of, where
passenger is injured. If pre-
sumption is not rebutted, pas-
senger may recover. McGoffin
v. Missouri P. R. Co. (Mo.),
489.

Instruction of court as to pre-
sumption of negligence from
unusual occurrence, held erro-
neous as being on the weight of
the evidence. Texas C. R. Co.
v. Burnett (Tex.), 492 n.
Derailment; evidence that pas-
senger was injured by, entitles
him to recover unless company
shows due care. Montgomery
E. R. Co. v. Mallette (Ala.),
499 n.

in case of, prima facie case of
negligence is made out and
burden of proof is on company.
Southern Kan. R. Co. v. Walsh
(Kan.), 493.

Presumption of negligence
arises from proof of accident.
Alabama G. S. R. Co. v. Hill
(Ala.), 501.

Freight train ;

passenger in,
thrown down by concussion of
Presumption of negli-

cars.

gence held to arise. Georgia
P. R. Co. v. Love, 492 n.
Landslide; where passenger is
injured owing to, presumption
of negligence arises.

Gleeson

v. Virginia M. R. Co. (U. S.), :
513.

Prima facie case may be rebutted

by showing inevitable accident
or impossibility of foreseeing:
it. Southern Kan. R. Co. v.;
Walsh (Kan.), 493.

Defective Track and Roadbed.
Break in track caused by fall of
water during rain. Conflicting
evidence as to whether rain
was unusual. Texas & P. R.
Co. v. Barron (Tex.), 520 n.
Degree of care. Company owes
to passengers more than ordi-
nary care in construction and
maintenance of track. It must
exercise best precaution known
to practical use. Southern
Kan. R. Co. v. Walsh (Kan.),
493.
Evidence.

Admissions and re-
marks by president of construc-
tion company to newspaper re-
porter several hours after acci-
dent. Chattanooga R. & C. R.
Co. v. Liddell (Ga.), 521 n.

Condition of track over which
train had to pass to reach place
of accident, may be shown.
Evidence as to condition of
track six months after accident.
Jacksonville & S. E. R. Co. v.
Southworth (Ill.), 513 2.

Exclusion of question as to
whether there was subsequent
accident at same switch, held
harmless error. Grant . Ral-
eigh & G. R. Co. (N. Car.),
513 n.

as to chock block, where
train ran off of one track and
ran into cars on another track.
Stouter v. Manhattan R. Co.
(N. Y.), 521 n.

as to condition of cross ties.
Statement of witness according
to his best recollection, held
properly received. Alabama
G. S. R. Co. v. Hill (Ala.), 501

as to condition of track in
vicinity of accident where in-
jury was caused by derailment,
owing to breaking of rail and
defective ties. Alabama G. S.
R. Co. v. Hill (Ala.), 501.

in reference to defective
track and roadbed, 513 n.

PASSENGERS.

Defective Track and Roadbed-
Continued.

Evidence of condition of track at
other places than place of ac-
cident. Grant v. Raleigh & G.
R. Co. (N. Car.), 513 2.

of defects in track that may
have caused accident, held ad-
missible under the complaint.
Richmond & D. R. Co. v. Vance
(Ala.), 513 ".
Exemplary damages for injuries
to passenger caused by defect-
ive track, 512 n.

for injury caused by derail-
ment, not confined to cases
where there is entire want of
care. Alabama G. S. R. Co. v.
Hill (Ala.), 501.

may be recovered, where in-
jury was caused by rotten ties
and old rails, showing gross
negligence. Alabama G. S. R.
Co. v. Hill (Ala.), 5or.

not recoverable for injury
caused by defective track, un-
less defendant was probably
conscious that accident was
likely. Richmond & D. R. Co.
v. Vance (Ala.), 512 n.
Fences. Derailment caused by
collision with calf. Negligence
in failing to fence track. Gulf
C. & S. F. R. Co. v. Wilson
(Tex.). 522 n.
Landslide, Company must so
construct the banks of its cuts,
that they will not slide from or-
dinary causes. Failure to do
so is negligence. Gleeson v.
Virginia M. R. Co. (U. S.), 513.

caused by ordinary rain, not
an act of God" exempting
company from liability. Glee-
son 2. Virginia M. R. Co.
(U. S.), 513.

New roadbed. Road not open for
regular passenger trains. As-
sumption of risk by passenger.
San Antonio & A. P. R. Co. v.
Robinson (Tex.), 521 #.
"Spring rail"; accident caused by
break of. Expert testimony
that rail appeared to be sound,
not necessary. Crawford .
Georgia P. R. Co. (Ga.), 520 #.
Train leaving one track and run-
ning into cars on another track.
Leaving freight cars on side
track, not negligence. Grant .