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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 the 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 before 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

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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.

Act enabling railroad companies to complete railroads: See post, Appendix, title "Railroads."'

Legislative History.

Section 54 of the railroad act of 1861, as amended 1870, page 578, is the basis of this section.

Section Cited

Arcata v. Arcata etc. R. R., 92 Cal. 646, 28 Pac. 676.

Annotation.

Construction of Section.—This section applies only to the construction and completion of the main road provided for in its articles of incorporation, and not to a switch or sidetrack, which the company may find necessary for the proper conduct of business and the convenience of the public after the road has been put in operation. (Arcata v. Arcata etc. R. R., 92 Cal. 639, 28 Pac. 676.)

But where a statute or municipal ordinance expressly provides that failure to complete work in a certain time shall work a forfeiture, no action is necessary to enforce the forfeiture; where a forfeiture is not expressly declared by statute or municipal ordinance a judicial declaration of forfeiture in a suit for that purpose is necessary. (Arcata v. Arcata etc. R. R. Co., 92 Cal. 639, 28 Pac. 676.)

CROSSINGS AND INTERSECTIONS-CONDEMNATION.

Sec. 469, C. C. Whenever the track of one railroad intersects or crosses the track of another railroad, whether the same be a street railroad, wholly within the limits of a city or town, or other railroad, the rails of either or each road must be so cut and adjusted as to permit the passage of the cars on each road with as little obstruction as possible; and, in case the persons or corporations owning the railroads cannot agree as to the compensation to be made for cutting and adjusting the rails, the condemnation of the right of way over the one for the use of the other road, may be had in proceedings under title VII, part III, Code of Civil Procedure, and the damages assessed and the right of way granted as in other cases. March 21, 1872.

En.

Right of eminent domain: Code Civ. Proc., secs. 1237-1263. Crossings and intersection: See ante, sec. 465, subd. 6, C. C., and

note.

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Legislative History.

Section 2 of the act of 1862, page 498, is the basis of the above section.

Annotation.

Condemnation of Property of Another Company.-One railroad company cannot locate its line upon that of another railroad company, except where it may be necessary for one railroad to cross another, nor can it condemn land previously condemned by another company. (Contra Costa R. R. Co. v. Moss, 23 Cal. 323. To same effect: S. P. R. R. Co. v. Railway Co., 111 Cal. 227, 42 Pac. 602. Note citation: 9 Am. St. Rep. 143.)

Such location, followed by proper condemnation, may be made where it appears that the condemnation works no substantial injury to defendant and produces only such inconvenience as is covered by awarded damages, and that the taking is for a more necessary public use, within the meaning of this section. (Southern Pac. R. R. v. Railway Co., 111 Cal. 221, 42 Pac. 602.)

NOT TO USE STREETS, ALLEYS, OR WATER IN CITIES OR TOWNS, EXCEPT BY A TWO-THIRDS VOTE OF THE CITY OR TOWN AUTHORITIES.

Sec. 470, C. C. No railroad corporation must use any street, alley, or highway, or any of the land or water, within any incorporated city or town, unless the right to so use the same is granted by a two-third vote of the town or city authority from which the right must emanate. En. March 21, 1872.

Section Cited

Weyl v. Sonoma Valley R. R., 69 Cal. 206, 10 Pac. 510; Arcata v. Arcata etc. R. R., 92 Cal. 645, 28 Pac. 676; South Pasadena v. Terminal Ry. Co., 109 Cal. 319, 41 Pac. 1093.

Annotation.

Use of Street by Railway.-No right of way over a street is allowed for the use of any other than a municipal corporation, save upon compensation ascertained by a jury, as provided in section 14 of the Constitution. (Weyl v. Sonoma Valley R. R., 69 Cal. 206, 10 Pac. 510.)

The dedication of a street to public use authorizes any ordinary use for street purposes; and the use of a street in a city or town for the tracks of a street-car company is of this class, and is therefore authorized. (Finch v. Riverside etc. Ry. Co., 87 Cal. 598, 25 Fac. 765. To same effect: Montgomery v. Railway Company, 104 Cal. 186, 43 Am. St. Rep. 98, 99, 37 Pac. 786.)

The authority to construct a railroad on any highway or street is conferred by section 465 of the Civil Code, subject to the condition that the consent of two-thirds of the members of the council or board must be obtained before any street or avenue of an incorporated city or town can be taken for this purpose. (Arcata v. Arcata R. R. Co., 92 Cal. 645, 28 Pac. 676.)

An order granting the privilege of laying sidetrack, when acted upon and money spent in consequence thereof, is not a mere license revocable at the pleasure of the board. (Arcata v. Arcata etc. R. R. Co., 92 Cal. 639, 28 Pac. 676. To same effect: Workman v. Southern Pac. R. R., 129 Cal. 536, 62 Pac. 185, 316.)

Fixing Rates as Condition of Grant.-An ordinance assuming the power to regulate fares as a condition of the grant of a right of way over the streets of the city in accordance with the provisions of this section is void. (South Pasadena v. Terminal Ry. Co., 109 Cal. 315, 41 Pac. 1093.)

RAILROADS THROUGH CITIES NOT TO CHARGE FARE TO AND FROM POINTS THEREIN. (Repealed.)

Sec. 471, C. C. En. March 21, 1872. Amd. 1875-76, 76. Rep. 1877-78, 84.

WHEN CROSSING RAILROADS OR HIGHWAYS, HOW OTHER LANDS ARE ACQUIRED.

Sec. 472, C. C. Whenever the track of such railroad crosses a railroad or highway, such railroad or highway may be carried under, over, or on a level with the track, as may be most expedient; and in cases where an embankment or cutting necessitates a change in the line of such railroad or highway, the corporation may take such additional lands and material as are necessary for the construction of such road or highway on such new line. If such other necessary lands cannot be had otherwise, they may be condemned as provided in title VII, part III, Code of Civil Procedure; and when compensation is made therefor, the same becomes the property of the corporation. En. March 21, 1872.

Legislative History.

Section 19 of the railroad act of 1861 is the basis of this section.

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