proceedings to acquire a right to use the land upon which its track is laid, if there is any doubt about the title obtained by the first effort at condemnation.1 § 59. Necessary and convenient buildings - Maintenance- Repairs Side tracks Telegraph lines, etc. Under the general authority to construct and maintain a public improvement, all the necessary appurtenances are included. Authority to construct a railroad, with its necessary appendages and the buildings convenient and necessary, is sufficient to justify condemnation for engine-houses,2 depots, repair-shops, tanks, sheds for storing .cars not in use, paint-shops,' lumber and timber sheds, buildings for 5 1 Matter of Prospect Park R. R., 67 N. Y. 371. 2 Hannibal R. R. v. Muder, 49 Mo. 165. Hamilton v. Annapolis R. R., 1 Md. 553; Hannibal R. R. v. Muder, 49 Mo. 165; New York R. R. v. Kip, 46 N. Y. 546; The State v. Mansfield, 23 N. J. L. 510; Nashville R. R. v. Cowardin, 11 Humph. 348; Giesy v. Cincinnati R. R., 4 Ohio St. 308. ♦ Eldridge v. Smith, 34 Vt. 484. In a recent case in California, reported in 6 Reporter, 708, not yet reported in the regular reports, being the case of Southern Pacific Railroad v. Raymond, the court discusses the extent to which a railroad company may proceed in condemning land for the "necessary appendages and adjuncts" allowed by the statute. The court says: "Whether or not workshops for the repair and safe-keeping of the cars and locomotives of the plaintiff are necessary appendages and adjuncts to this road, under all the circumstances to be developed at a trial, and, if so, whether the land sought to be condemned is necessary as a site for said buildings, are questions of fact, on which issues may be joined, to be decided at the trial. In some of the states it has been decided that the court will take judicial notice that workshops for the repair of the engines and cars of a railroad corporation are necessary appendages and adjuncts, without which the railroad could not be successfully operated; and for the purposes of this decision we shall assume, without deciding the point, that such is the law. But assuming, as a general proposition, that some workshops for this purpose are necessary appendages to a railroad, it may be that this railroad is already amply supplied with all the necessary appendages of this character. It may have a sufficiency of workshops for this purpose; or, if not, it may already have sufficient land, conveniently located, on which to erect them. These are facts to be ascertained at the trial, on proper issues formed for that purpose." 5 Chicago R. R. v. Wilson, 17 Ill. 123. 6 New York R. R. v. Kip, 46 N. Y. 546; The State v. Mansfield, 23 N. J. L. 510. Low v. Galena R. R., 18 Ill. 324. 8 Ibid. convenient receipt and delivery of freight,' space on which to pile lumber and material to be used on or transported over the road,' terminal facilities, including tracks to reach stock-yards of company, to reach elevators and river front, and for wood and coal yards. The erection of houses to rent to employees or officers of road," of warehouses as such, of slips to accommodate vessels bringing freight to or taking freight from railroad,' are not such uses as to justify the exercise of eminent domain under a general authority to construct a railroad and its appendages. In Eldridge v. Smith, Poland, C. J., doubts whether a railroad can condemn land for the site of shops to build cars, any more than to condemn iron for rails, or glass, nails, and paint for the cars, and that only such materials as railroads must have in running the road could be condemned. For any abuse of power, the corporation may be restrained and confined to a legitimate use of its franchise." Authority to maintain a public improvement of suitable width, depth, and dimensions will authorize alterations by widening and deepening.10 Under general authority to maintain an improvement, land may be appropriated to make a new and desirable connection with a new bridge," or to provide necessary space on which to deposit waste earth; 12 but not to make an essential variation in route, however necessary or desira 1 New York R. R. v. Kip, 46 N. Y. 546; Nashville R. R. v. Cowardin, 11 Humph. 348. 2 Cumberland Valley R. R. v. McLanahan, 59 Pa. 23; Lance's Appeal, 55 Pa. 16. New York Central R. R. v Metropolitan Gas-Light Co., 63 N. Y. 326. Eldridge v. Smith, 34 Vt. 484; Rensselaer R. R. v. Davis, 43 N. Y. 137; The State v. Mansfield, 23 N. J. L. 510; Nashville R. R. v. Cowardin, 11 Humph. 348. • Hamilton v. Annapolis R. R., 1 Md. 553. Rensselaer R. R. v. Davis, 48 N. Y. 137. 8 34 Vt. 484. • Chicago R. R. v. Wilson, 17 Ill. 123; Hamilton v. Annapolis R. R., 1 Md. 553; Reed v. Louisville Bridge, 8 Bush, 69. 10 Selden v. Delaware Canal Co., 29 N. Y. 634. 11 Mississippi R. R. v. Devaney, 42 Miss. 555. 12 Lodge v. Philadelphia R. R., 8 Phila. 345. ble. The power to construct a railroad includes the power to use land condemned for necessary side tracks and turn-outs.3 A side track would not include a track on one side of a town, to be used for three years, while the main road was in process of construction on the other side of the town.1 Double tracks must mean on the same street, and not on adjoining streets." An extension of a road would mean by means of an elongation, and would not authorize a lateral branch. A telegraph line, if not indispensable to a railroad, tends so much to facilitate its business, and to the speedy and safe running of its trains, that the railroad company has a right to build it, to use its right of way therefor, and to remove all obstructions thereon to its fullest and most uninterrupted and beneficial use. Although it may have but an easement in the land, and that easement limited to its use for railroad purposes, yet a telegraph is so convenient, if not indispensable, that it may cut down every tree and bush on the right of way, if necessary for the most constant and efficient use of a telegraph line built by it over and upon such right of way, just as it may dig away a hill or fill up a ravine for the sake of a water-tank or a station-house. By so doing, it gives the adjacent landowner no claim for damages. Such use is contemplated in the original condemnation, and the damages resulting therefrom are part of the damages included in the assessment therefor. Such use is not an additional burden on the right of way; and it does not signify that the line was erected by a telegraph company, for the joint use of such company and railroad." 1 Moorhead v. Little Miami R. R., 17 Ohio, 340. Cleveland R. R. v. Speer, 56 Pa. 325; Philadelphia R. R. v. Williams, 54 Pa. 103; Protzman v. Indianapolis R. R., 9 Ind. 467. Knight v. Carrollton R. R., 9 La. An. 284; New Orleans R. R. v. Second Municipality, 1 La. An. 128. 4 Currier v. Marietta R. R., 11 Ohio St. 228. CHAPTER VII. OF DELEGATION OF THE POWER OF EMINENT DOMAIN. 60. The power may be delegated - Delegation to engineers Contractors. 61. Delegation to corporations. 62. Discretion to be exercised-Selection of route. 63. Condemnation by corporation after sale or lease of its propertyRights of vendee. 64. Immunity of officers engaged in condemnation from actions of trespass. § 60. The power may be delegated - Delegation to engineers — Contractors. — The sovereign, in exercising the power of eminent domain, must employ agents or servants. The legislative body cannot supervise every act done, and hence, by force of circumstances, the power must be delegated. This power may be delegated to individuals1 and their associates,' to corporations, both municipal and private, and to corporations of another state. The employees of public officers are constituted agents for the purpose of condemnation. Public officers are not supposed to condemn land or take materials in person, but may cause them to be taken by their proper agents, and no express authority need be given by statute to such employees. The owner of the land does not look to the employees for his compensation, but to the state or the corporation condemning. Judge Redfield, in 1 Crittenden v. Wilson, 5 Cow. 165; Matter of Kerr, 42 Barb. 119; Beekman v. Saratoga R. R., 3 Paige, 45; Tide-Water Co. v. Archer, 9 Gill & J. 479. 1 Young v. Buckingham, 5 Ohio, 485. North Missouri R. R. v. Gott, 25 Mo. 540; Boston Water-Power Co. v. Boston R. R., 23 Pick. 360; Buffalo R. R. v. Brainard, 9 N. Y. 100. Matter of Townsend, 39 N. Y. 171; Morris Canal Co. v. Townsend, 24 Barb. 658; New York R. R. v. Young, 33 Pa. 175. • Vermont R. R. v. Baxter, 22 Vt. 365; Schmidt v. Densmore, 42 Mo. 225. Vermont Railroad v. Baxter, considers that a contractor would be included in "the engineers, agents, or workmen " of the corporation. The engineers and contractors must exercise the power under the authority of the commissioners or corporate authorities, and the contractor may secure the condemnation of the land or materials necessary, and pay the compensation awarded.' The discretion must be exercised by the commissioners upon whom the power is conferred.3 A contractor for public work is not necessarily an agent of the state, and his actions are not protected by the laws controlling the exercise of eminent domain, but he would be liable in trespass for an attempted exercise. A landagent authorized by law to "cause" roads to be located cannot locate them himself. He must use the ordinary means, and apply to the county commissioners to proceed.5 A corporation cannot escape liability by contracting with others, notwithstanding the party may be a municipal corporation. The corporation is primarily liable." § 61. Delegation to corporations. It is not strange that the sovereign should delegate to municipal corporations the exercise of the power of eminent domain. The control of streets is generally delegated to them, and the discretion exercised by them in opening and widening is not subject to revision by the courts. A city council condemn ing land acts in a quasi-judicial capacity. A city is not 1 22 Vt. 365. In Minnesota, a contractor for the construction of a public street has implied authority to remove whatever materials may be necessary to construct the street. St. Anthony Falls Co. v. King Bridge Co., 23 Minn. 186. 2 Bliss v. Hosmer, 15 Ohio, 44. Lyon v. Jerome, 26 Wend. 485. St. Peter v. Denison, 58 N. Y. 416; Schmidt v. Densmore, 42 Mo. 225. While the government cannot be enjoined, its agents may be. Avery v. Fox, 1 Abb. U. S. 246. And their proceedings are controlled by certiorari or appeal. McArthur v. McEachin, 64 N. C. 454. 5 Burns v. Annas, 60 Me. 288. 6 Gardiner v. Boston R. R., 9 Cush. 1. 7 Methodist Church v. Baltimore, 6 Gill, 391; Alexander v. Baltimore, 5 Gill, 383. |