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reserved, the property of the corporation is subject to condemnation for public uses. The taking of the property of a corporation is not an alteration, modification, or repeal of its charter. It is the enforced purchase of its property." The banking-house of a bank, the bridge of a bridge company,' the grounds of an academy,' may be taken, as well as the property of an individual.5 The property is held subject to the necessities of the public. The franchise and the property, when inseparable, can be taken together, compensation being made for both. The property of a corporation, not actually in use or absolutely necessary for the enjoyment of the franchise, or which is only convenient, and not such as the corporation might condemn, and which they had acquired by purchase, is subject to condemnation for other purposes, as the property of an individual.?
§ 42. Condemnation of a franchise. Franchises are held in subordination to the exercise of eminent domain, and must yield to its proper exercise. The investiture of the franchise is not absolute. Conditions enter into all contracts, superinduced by the preëxisting and higher authority of the laws of nature, of nations, or of the community. There is no distinction between corporeal and incorporeal property, and a franchise is as subject to the power of eminent domain as any other property. There is no impair
1 Trustees v. Salmond, 11 Me. 109; Jeffersonville R. R. v. Daugherty, 40 Ind. 83; Illinois Canal v. Chicago R. R., 14 Ill. 314.
Grand Junction R. R. v. Middlesex, 14 Gray, 553; Boston R. R. o. Salem R. R., 2 Gray, 1; The State v. Hudson Tunnel Co., 38 N. J. L. 548.
3 Charles River Bridge v. Warren Bridge, 11 Pet. 420. • Trustees v. Salmond, 11 Me. 109.
6 White River Turnpike Co. v. Vermont Central R. R., 21 Vt. 590; Bellona Co.'s Case, 8 Bland, 442.
6 West River Bridge o. Dix, 6 How. 507, per McLean, J.; Crosby v. Hanover, 36 N. H. 404.
7 Peoria R. R. v. Railroad, 66 Ill. 174; Iron R. R. v. Ironton, 19 Ohio St. 299.
• West River Bridge v. Dix, 6 How. 507; Enfield Toll-Bridge Co. v. Hartford R. R., 17 Conn. 40; Backus v. Lebanon, 11 N. H. 19; Central Bridge o.
ment of the obligation of a contract, if, on the condemnation of the entire franchise, or on the authorization of a material injury to it, compensation is made. The provision for compensation recognizes the validity of the contract.? There is no greater sacredness in the grant of a franchise to a corporation by legislative power than of a grant to an individual, and such franchises may be taken when the public necessities require it, on making suitable compensation. It must clearly appear that the legislature intended that the franchise should yield to public use, and it should not be taken when the public purpose can otherwise be accommodated. A franchise may be valuable, although the property upon which it is exercised may belong to the public. In condemning such a franchise, the value of the property should not be included. In New Jersey it is suggested that the shares of stock of dissenting stockholders of a corporation may be condemned by the corporation, upon a valuation.
Lowell, 15 Gray, 106; New York R. R. v. Boston R. R., 36 Conn. 196; Salem Turnpike v. Lyme, 18 Conn. 451; James River Co. v. Thompson, 3 Gratt. 270; Tuckahoe Canal Co. v. Tuckahoe R. R., 11 Leigh, 42; Lafayette Plank-road v. New Albany R. R., 13 Ind. 90; Newcastle R. R. v. Peru R. R., 3 Ind. 464.
Richmond R. R. v. Louisa R. R., 13 How. 71; Charles River Bridge v. War. ren Bridge, 11 Pet. 420, 7 Pick. 344: White River Turnpike v. Vermont Central
R., 21 Vt. 590; Central Bridge v. Lowell, 4 Gray, 474; Boston R. R. v. Salem R. R., 2 Gray, 1; Matter of Kerr, 42 Barb. 119; Enfield Toll-Bridge Co. v. Hartford Bridge, 17 Conn. 454; Baltimore Turnpike v. Union R. W., 35 Md. 224.
? West River Bridge v. Dix, 6 How. 507.
3 Richmond R. R. v. Louisa R. R., 13 How. 71; The State v. Canterbury, 28 N. H. 195; Barber v. Andover, 8 N. H. 398; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; West River Bridge v. Dix, 16 Vt. 446; Armington v. Barnett, 15 Vt. 745 ; Eastern R. R. v. Boston R. R., 111 Mass. 125; Central Bridge v. Lowell, 4 Gray, 474; Boston Water-Power Co. v. Boston R. R., 23 Pick. 360; Red River Bridge o. Clarksville, 1 Sneed, 176.
· West River Bridge v. Dix, 6 How. 507, per Woodbury, J.
6 Central Bridge v. Lowell, 15 Gray, 106. This case contains interesting rules for computation of the compensation for a franchise to determine at a certain time, at which time the property of the corporation was to go to the state. 6 Black v. Delaware Canal Co., 22 N. J. Eq. 130.
§ 43. Impairment of the enjoyment of a franchise, and regulation of the use of it. — The enjoyment of an exclusive franchise may be impaired, under legislative sanction, but compensation must be provided. The establishment of a railroad bridge within the exclusive privilege of a tollbridge is an impairment of the exclusive privilege of a
bridge” within such limits. Although the manner of construction and use may be different, the railroad bridge must be considered “another bridge” within the meaning of the act, although not a similar bridge, and the damages suffered must be assessed and paid. The use of the property of a corporation by the corporation itself is subject to the regulation of the legislature, and such regulation is not a taking of the property for the use of others. A railroad may be compelled to make cattle-guards on the line of the road, to protect the lives of animals and of the travelling public. A railroad may be compelled to build a depot in a certain place, and to cause trains to stop there. This is not a taking of the property of the railroad. The depot, when built, belongs to the company.
The legislature may regulate the enjoyment of the franchise by providing for connecting railroads together, and may prescribe by whom, in what manner, and under whose supervision the work should be accomplished, and in what proportion, according to their respective interests, the expenses shall be met by the railroads themselves; and this without compensation, and without regard to the wishes of either corporation. Railroads may be compelled to make wider and better bridges over streets, in order to accommodate public travel, and to
1 The State v. Noyes, 47 Me. 189; Enfield Toll-Bridge v. Hartford Bridge Co., 17 Conn. 454; Salem Turnpike v. Lyme, 18 Conn. 451.
? Enfield Bridge Co. v. Hartford R. R., 17 Conn. 40; Charles River Bridge v. Warren Bridge, 11 Pet. 420. Contra, Lake v. Virginia R. R., 7 Nev. 294.
3 Thorpe v. Rutland R. R., 27 Vt. 140.
make the necessary excavations, embankments, and bridges for new highways. In some states it has been considered too onerous to impose upon railroads and canals the burden of making new crossings and bridges for roads and streets subsequently made, without compensation, while they may be compelled to provide for existing roads and streets.?
§ 44. Condemning a use of the property of a corporation. It is not always necessary to condemn the entire property or franchise of a corporation. Two street-cars may be run on the same track as well as one. Two railroad companies may use the same track under proper regulations. The property may still remain in the road having located first, with an easement in the second road to use the track in a proper manner, to be regulated by law. This easement, being a property, must be paid for. In Massachusetts the system has probably been perfected to a greater extent than in any other state. The railroad commissioners have the matter of compensation under their control. The compensation may be limited to the damages for the use and wear of tracks, and may exclude compensation for the diminution of profits or the value of the franchise. Each company has an equal right to use the track. The legislature may require the keeping and rendering of particular accounts, so as to show the amount of business done by one railroad on the track of another. In considering the value
1 Albany R. R. v. Brownell, 24 N. Y. 845 (overruling Miller v. New York Central R. R., 21 Barb, 513).
Morris Canal Co. v. The State, 24 N. J. L. 62; Illinois Central R. K. v. Bloomington, 76 Il. 447.
3 Worcester R. R. v. Railroad Commissioners, 118 Mass. 561; Sixth Avenue R. R. v. Kerr, 45 Barb. 138; Matter of Kerr, 42 Barb. 119; Jersey City & B. R. R. v. Jersey City & H. R. R., 20 N. J. Eq. 61; Union R. W.v. Continental R. W., Phila. (C. P.) 1876.
Jersey City & B. R. R. v. Jersey City & H. R. R., 20 N. J. Eq. 61. 5 Metropolitan R. R. v. Highland R. R., 118 Mass. 290.
6 Metropolitan R. R. v. Quincy R. R., 12 Allen, 262; Lexington R. R. o. Fitchburg R. R., 14 Gray, 266.
of the easement taken, it is proper to consider the nature and extent of business transacted by the first railroad, as tending to prove the actual effect of the location on the value of the property taken, but no evidence is admissible as to the damages resulting from inconvenience and interruption. Commissioners may fix the times at which trains shall be run over the road, if not agreed upon between the · parties, and may award the right to the condemning company to run a certain number of independent trains over the other's road, and to fix the times when the same shall be run and the stations at which they shall stop, and determine whether the cars shall be run in independent or consolidated trains.? The award of rates for carrying passengers and freight may be different from the same station on one road to the junction, when they are to be carried to different stations on the other road. A railroad corporation, across whose road another railroad or a highway is laid out, has the like right as all individuals or bodies corporate, owning lands or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures on the land, or changes in its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. But it is not entitled to damages for the interruption and inconvenience occasioned to its business ; nor for the increased liability to damages from accidents; nor for increased expense for ringing the bell ; nor for the risk of being ordered by the county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travellers crossing the railroad ; nor for the expenses of maintaining a flagman, alleged to be necessary to guard against the greater liability to acci
1 Boston R. R. v. Old Colony R. R., 3 Allen, 142.
Lexington R. R. v. Fitchburg R. R., 14 Gray, 266. • Boston R. R. v. Western R. R., 14 Gray, 253.