CONTRIBUTORY NEGLIGENCE | CROSSING—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.
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.
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.
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.
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-
DONATION. See SUBSCRIPTION. ELECTION. See OFFICERS. ELECTRIC RAILWAY.
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-
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-
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.
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-
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.),
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.
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
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.
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-
EMINENT DOMAIN.
Damages-Continued.
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.
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.
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