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Southern Cal. Ry. Co., 129 Cal. 10, 61 Pac. 947; 8. F. & S. J. Ry. Co. v. Leviston, 134 Cal. 415, 66 Pac. 473; Southern Pac. R. R. Co. v. Ray. niond, 53 Cal. 227, 228; Pacific Ry. Co. v. Wade, 91 Cal. 452, 25 Am. St. Rep. 201, 27 Pac. 768.)

Annotation.

1. To Survey Road. — The fact that plaintiff had, after preliminary survey, acquired a right of way over another portion of defendant's land, over which it might, though less advantageously, build its road, does not render the taking unnecessary. (Eel R. & E. R. R. v. Field, 67 Cal. 432, 7 Pac. 814.)

It is a mistaken construction of this section to suppose that a rail. road corporation can enter upon land and commence construction of its road, under sanction of law, before commencing condemnation proceedings, notwithstanding the permission given herein to enter upon the land and make such examinations, surveys and maps as may be necessary. (Robinson v. Southern Cal. Ry. Co., 129 Cal. 11, 61 Pac. 947.)

The existence of a public use, and the location of a right of way through certain land establish the necessity for a right of way. (S. F. & S. J. V. Ry. Co. v. Leviston, 134 Cal. 415, 66 Pac. 473.)

2. May Accept Real Estate. The provisions of this subdivision when read with subdivisions 1 and 3, and section 1001 of the Civil Code, held not to confer power upon a railroad corporation to enter upon land and construct its road, before commencing condemnation proceedings. (Robinson v. So. Cal. Ry. Co., 129 Cal. 11, 61 Pac. 947.)

See sec. 354, C. C., and notes on general power of corporation to acquire and dispose of real estate, ante.

Exceeding limit upon power to acquire realty: See sec. 360, C. C., and notes, ante.

3. May Acquire Real Estate.—Under this, and subdivisions 3, 7 and 9, of this section, a railroad company has power to condemn land for a site whereon to erect and maintain permanent and suitable buildings for workshops, for repairing the cars and locomotives of the company, and for safely keeping the same. (So. Pac. R. R. v. Raymond, 53 Cal. 226.)

4. Lay Out Road, etc.—Construing subdivisions 1 and 7 with this subdivision of this section, it is held, in proceeding to condemn land, a railroad corporation has power to acquire right of way in accordance with the most advantageous route for its road, and the taking for such purpose is not rendered unnecessary by the fact that it had previously purchased a less advantageous right of way over land of defendant. (Eel River etc. Ry. Co. v. Field, 67 Cal. 429, 7 Pac. 814.)

And it is held from a consideration of the same subdivisions of the section, the existence of the public use and the location of the right of way establish the necessity therefor. (8. F. etc. Ry. Co. v. Leviston, 134 Cal. 415, 66 Pac. 473.)

5. Where May Construct Road. This provision does not per: mit a steam railroad to acquire a right of way for its road over a street in a municipality, the fee in which is owned by an abutting proprietor, except upon compensation first made to him. (Weyl v. Sonoma Valley R. R., 69 Cal. 202, 10 Pac. 510. To same effect: Finch v. Riverside etc. Co., 87 Cal. 598, 602, 25 Pac. 765; but ruling aliter as to construction of street railway under municipal franchise. Distinguished: Montgomery v. Santa Ana etc. Co., 104 Cal. 196, 197, 43 Am. St. Rep. 98, 99, 37 Pac. 786.)

Urban servitudes are essential to the enjoyment of streets in cities, and include the authority to use the street for the track of a railway company under license by city authority, without previous compensation to the owner of the fee. (Montgomery v. Railway Co., 104 Cal. 186, 43 Am. St. Rep. 89, 37 Pac. 786.)

This section confers the authority to construct the railroad on any highway or street subject to the condition contained in section 470, Civil Code, that the consent of two-thirds of the council or koard must be obtained before any street or avenue of an incor. porated city or town can be taken therefor. (Arcata v. Arcata etc. R. R., 92 Cal. 645, 28 Pac. 676.)

The whole of a road as laid out having been dedicated as a highway, a railroad corporation has a right to construct its railroad therein, and may enjoin a grantee, whose land is adjacent to the part of the road not actually used by the public, from tearing up its track. (Southern Pac. Co. v. Ferris, 93 Cal. 263, 28 Pac. 828.)

6. May Cross or Connect with the Roads.- This subdivision of this section prescribes the method to be followed generally in ascer. taining the compensation to be paid for the connections permitted by it, but has no reference to street railroads, which are governed in this behalf by section 499 of the Civil Code. (Pacific Ry. Co. v. Wade, 91 Cal. 452, 25 Am. St. Rep. 201, 27 Pac. 768.)

Exercise of Right of Eminent Domain.-It is well settled that rail. roads for public travel are public improvements, in behalf of which the power of eminent domain may be legitimately exercised. (Napa R. R. Co. v. Napa Co., 30 Cal. 437; Stockton R. R. v. Stockton, 41 Cal. 147; S. F. etc. R. R. Co. v. Caldwell, 31 Cal. 367; Contra Costa R. R. Co. v. Moss, 23 Cal. 323; Fox v. R. R. Co., 31 Cal. 538; Cal. P. R. R. v. C. P. R. R., 47 Cal. 549; S. P. R. R. v. Raymond, 53 Cal. 223; 8. P. R. R. v. Wilson, 49 Cal. 390; Sac. V. R. R. v. Moffatt, 7 Cal. 577; C. P. R. R. v. Pearson, 35 Cal. 247; C. P. R. R. v. Frisbie, 41 Cal. 356; Cal. P. R. R. v. Armstrong, 46 Cal. 85.)

Seo constitutional right of railroad companies to intersect, connect with, or cross, other railroads, sec. 17, art. 12, Const., ante.

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7. May Purchase Land, Timber, Stone, etc.-On exercise of right of eminent domain, see note to previous subdivision.

The power conferred by this subdivision admits of the acquisition of lands, etc., by condemnation proceedings, not only for the construction and maintenance of the road, but also for all necessary appendages and adjuncts. (So. Pac. R. R. v. Raymond, 53 Cal. 228. To same effect generally: S. F. & S. J. R. R. v. Leviston, 134 Cal. 415, 66 Pac. 473.)

And a railroad corporation has power to acquire a right of way in accordance with the most advantageous route for its road, and the taking for such purpose is not rendered unnecessary by the fact that it had previously purchased a less advantageous right of way over certain land. (Eel River etc. R. R. v. Field, 67 Cal. 429, 7 Pac. 814.)

8. Carry Passengers and Freight.-If a passenger is ready and willing, and offers to pay the legal fare when demanded by the conductor of the train, the railroad company is bound to carry him, provided there is room in the cars and the passenger is a fit person to be admitted. (Tarbell v. C. P. R. R. Co., 34 Cal. 616.).

General Powers.— Under the act of May 20, 1861, upon which this section is based, railroad corporation possessed all the power and privileges for the purpose of carrying on the business of the porations that private individuals and natural persons had. (Pixley v. R. R. Co., 33 Cal. 183, 91 Am. Dec. 623.)

A railroad company may contract to carry beyond its own line, and will be liable for the acts or negligence of connecting carriers. (Wheeler v. Railroad Co., 31 Cal. 46, 89 Amr. Dec. 147. To same effect: Carrigan v. 8. P. Co., 81 Cal. 251. Note citations: 56 Am. Iec. 84; 59 Am. Dec. 450; 66 Am. Dec. 430; 74 Am. Dec. 512; 2 Am. St. Rep. 61; 4 Am. St. Rep. 89. See, also, Pereira v. C. P. R. R., 66 Cal. 92; 4 Pac. 988; Lundy v. C. P. R. R., 66 Cal. 191, 56 Am. Rep. 100, 4 Pac. 1193. Note citation: 72 Am. Dec. 231, 240, 242.)

So also a railroad company has power to run a steamboat for carrying freight or passengers to terminus. (Wheeler v. R. R. Co., 31 Cal. 46, 89 Am. Dec. 147.)

And a railroad corporation has power, upon a sufficient consideration, to guarantee the payment of the bonds of another railroad company. (Lower v. Central Railroad Co., 52 Cal. 53.)

And a street railroad corporation has power to execute a note with al view to increase its business. (Temple Street Cable Ry. v. Hell. rian, 103 Cal. 634, 37 Pac. 530.)

The act of a railroad corporation in dedicating a portion of its land as a highway for the public is not ultra vires, and the intention to dedicate can be shown by the testimony of the directors i formal resolution of intention entered upon the minutes is not necessary. (People v. Eel River etc. R. R. Co., 98 Cal. 665, 33 Pac. 728.)

MAP AND PROFILE TO BE FILED.

Sec. 466, C. C. Every railroad corporation in this state must, within a reasonable time after its road is finally located, cause to be made a map and profile thereof, and of the land acquired for the use thereof, and the boundaries of the several counties through which the road may run, and file the same in the office of ihe Secretary of State; and also like maps of the parts thereof located in different counties, and file the same in the office of the clerk of the county in which such parts of the road are, there to remain of record forever. The maps and profiles must be certified by the chief engineer, the acting president and secretary of such company, and copies of the same, so certified and filed, be kept in the office of the secretary of the corporation, subject to examination by all parties interested. En. March 21, 1872.

Legislative History.

Section 34 of the railroad act of 1861, page 621, is the basis of this section,

Section Cited.

Eel River etc. R. R. v. Field, 67 Cal. 432, 7 Pac. 814.

Annotation,

Construction of Railroad Act of 1861, and Amendments.-Held, the provisions" of the act of 1861 (Stats. 1861, p. 607), amendatory of the act of 1853, did not apply to the incorporation of water companies, but are confined to the incorporation of railroad corporations. (S. V. W. W. v. San Francisco, 22 Cal. 438.)

The act of 1861, supra, as amended in 1863 (Stats. 1863, p. 610), required that just compensation should be made for land taken for public use and actually paid before the title vests in the railroad company, but that the railroad company should have the right to enter and proceed with the survey and construction of the road be. fore the compensation is ascertained or paid, provided a sum of money sufficient to pay the damages when assessed is paid into court or security is given for the payment. (Fox v. W. P. R. R., 31 Cal. 543. Distinguished: Davis v. San Lorenzo etc. Co., 47 Cal. 519. But see Sanborn v. Belden, 51 Cal. 266.)

But an order permitting a railroad company to enter into possession and use of land before compensation made and paid without providing for damages occasioned by the trespass or by waste is in violation of that clause of the Constitution which prohibits private property from being taken for private use without just compensation. (Davis v. San Lorenzo etc. R. R. Co., 47 Cal. 517. Affirmed: Cal. Pac. Co. v. Cent. Pac. Co., 47 Cal. 530; Callahan v. Dunn, 78 Cal. 370, 20 Pac. 737.)

Present Section.—Notwithstanding a railroad has previously purchased a less advantageous route over certain land, it may acquire another right of way more to its advantage. (Eel River etc. R. R. v. Field, 67 Cal. 429, 7 Pac. 814.)

MAY CHANGE LINE OF ROAD.

Sec. 467, C. C. If, at any time after the location of the line of the railroad and the filing of the maps and profiles thereof, as provided in the preceding section, it appears that the location can be improved, the directors may, as provided in subdivision 7, section 465, alter or change the same, and cause new maps and profiles to be filed, showing such changes, in the same offices where the originals are of [on] file, and may proceed in the same manner as the original location was acquired, to acquire and take possession of such new line, and must sell or relinquish the lands owned by them for the original location, within five years after such change. No new location as herein provided must be so run as to avoid any points named in their articles of incorporation. En. March 21, 1872.

Changing location: See ante, sec. 465, subd. 7, C. C., and notes.

Legislative History.

Section 18 of the railroad act of 1861, page 616, is the basis of this section.

FORFEITURE OF FRANCHISE.

Sec. 468, C. C. Every railroad corporation must within two years after filing its original articles of incorporation, begin the construction of its road, and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to extend its road beyond the point then completed is forfeited. En. March 21, 1872.

Organizing and commencing work: See general provision, ante, sec. 358, C. C., and notes.

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