property taken, if known, but want of such notice shall not affect the validity of the taking, nor extend the time for proceedings for damages."

On the written request of the company the mayor was to order the temporary or permanent removal or relocation of any surface tracks other than tracks of a steam railroad, or of any conduits, pipes, wires or other fixtures not belonging to the city or the company which the company deemed to interfere with the construction or operation of its subways. At the same time, however, the city was to grant new locations for all structures so removed. The work of relocating the fixtures was to be without expense to the Boston Elevated Railway Company except in the case of gas pipes and telephone or electric lighting conduits or cables. Fixtures of these kinds were to be removed by the company, the owner paying for any new material required, and the cost of the work so far as it formed a part of the cost of the subway to be repaid by the owner to the city, upon the purchase of the subway by the city. The mayor was authorized to require that whenever the company made an excavation in any public street or place, it should deliver such part of the surplus materials as it did not sell, at a point or points within two miles of the place of excavation as directed by the mayor. Such materials might be conveyed on street railway tracks already built or on street railways laid in temporary locations which the city was required to grant to the company upon request. So far as practicable, all subway work was to be done so as to leave each street or a reasonable part of it open for travel between seven o'clock in the morning and six o'clock in the afternoon of each secular day except holidays, but where deemed necessary by the company streets could be closed to public travel along the line of construction for distances not exceeding one-third of a mile.

The company was authorized to construct subway stations at convenient points, with suitable exits and approaches subject to the mayor's approval, but in case of any street less than sixty feet wide, all exits and approaches except platforms and approaches to them from buildings were to be located outside of the street limits. In case of any determination by the city or by any of its officials of any question arising in the course of the subway work, the company could appeal within seven days to the board of railroad commis

sioners, which would have the final determination of the question at issue.

The company was not to enter into a contract with any other person or corporation for the placing of wires in the subway for a time extending beyond the period of twenty years from the opening of the subway for use, or extending beyond the purchase of the subway by the city. The company was required to file with the city auditor of accounts "correct copies of all bills or accounts of the cost of construction," as the work went on. Upon the completion of any subway, before it could be opened for public use it was to be examined by the board of railroad commissioners and a certificate was to be granted the company to the effect that the subway was in safe condition for operation.

By this act the company was required to give up its location for an elevated railway connecting the cities of Boston and Cambridge as set forth in the company's charter amendment of 1897, and, in lieu of an elevated route, it was to operate through a subway or tunnel which the Boston Transit Commission was authorized to build to connect existing subways in Boston with the new Cambridge bridge. Within six months after the acceptance of the act, the company was to request the commission to construct this tunnel or subway, and the commission was required to proceed with the construction upon plans determined by it, or revised by the board of railroad commissioners on appeal taken by the company. Any tunnel construction under or within one hundred feet of Boston Common was to be as far as practicable watertight, and the work was to be carried on so as to avoid the draining of moisture from the surrounding soil or the doing of other injury to trees.

The subways constructed by the company in Cambridge, together with their appurtenances, equipment and locations and the right to maintain them, were to be held by the company on the same tenure and with the same rights, privileges and immunities as had already been provided in respect to the company's elevated lines and structures. It was provided, however, that at any time after the expiration of twenty years from the opening for use of the Main street subway, or at any earlier time by agreement with the company, the city should have the right to take over the subway upon pay

ment of such an amount as would reimburse the company for the original cost of the work, including the appurtenances and equipment of the subway, but not including rolling stock, together with the cost of all additions or alterations that had been lawfully made, with simple interest at seven per cent per annum on the cost paid in by the company's stockholders, to be computed from the date of such payment, but not prior to the opening of the subway, in addition to interest at three and one-quarter per cent per annum on all sums expended in construction, less any and all dividends. that may have been declared up to the date of purchase. There were also to be subtracted from the purchase price any amounts accruing to the company from property acquired in connection with the construction of the subway, but not needed for subway purposes. The city was also to have the right to purchase any other subways constructed under this act in Cambridge.

444. Construction and operating conditions of the New York Subway. The original subway of New York was built under a contract for construction and operation dated February 21, 1900. Under this contract the cost of the subway was to be met by funds supplied by the city. The contractor, on the other hand, was required to supply at his own expense "full and sufficient equipment, including all rolling stock, motors, boilers, engines, wires, subways, conduits and mechanisms, machinery, tools, implements and devices of every nature whatever, used for the generation or transmission of motive power, and including all power houses, real estate necessary therefor, or for the generation or transmission of motive power, and all apparatus for signalling and ventilation." The amount of the equipment was to be at least sufficient to furnish at one time trains of three cars on the local tracks at two-minute intervals and trains of four cars on the express tracks at five-minute intervals, each car having a minimum seating capacity of forty-eight persons. The motive power supplied was to be of such a character as not to require combustion in the tunnels or on the viaducts. The motors were to be of sufficient power to haul trains of five cars at an average of thirty-five miles an hour, with stations one and one-half miles apart, allowing ten seconds for each stop. The cars were to be constructed so as to

"facilitate to the utmost a quick discharge and loading of passengers." Both motors and cars were to be so designed as to have a handsome and attractive appearance inside and out. They were to be constructed of the best material and workmanship and special care was to be taken " to avoid all loose or rattling parts." Extra provision was also to be made for the thorough ventilation of the cars. The signalling devices were to be of the most approved and reliable character, with preference given to a system that would automatically stop a train in the event of a motorman failing to obey the danger signal. The general plans of the equipment, including the designs for cars and devices for signals and ventilation, were to be submitted to the board of rapid transit railroad commissioners for approval.

Coupled with the provisions for the construction of the subway and its equipment there was a lease of the road to the contractor for maintenance and operation for a period of fifty years from the date on which the subway should be declared complete by the rapid transit board. The subway was divided into four sections, however, and the contract provided that the term of the lease should be reckoned for each section from the date when the first section should be put into operation. Moreover, the contractor was given the right to a renewal of the lease for an additional period of twenty-five years, in case he made written demand on the rapid transit board not more than two years and not less than one year before the expiration of the original fifty-year term. The renewal lease was to be in the same form as the original, with the exception that the term was to be twenty-five years instead of fifty, that no provision was to be made for a further renewal and that the amount of the annual rental was to be readjusted. It was stipulated that the rental during the renewal period should not be less than the average amount of the annual rental for the ten calendar years of the original lease next preceding the contractor's demand for a renewal. Subject to this minimum requirement, the amount of the rental was to be agreed upon between the rapid transit board and the contractor, or, in case they could not agree, was to be fixed by arbitration or by appropriate suit or proceeding in the supreme court.

The title to the subway was to be in the city from the

beginning. The contractor under the original lease was required to pay an annual rental equal to the intrest on the bonds issued by the city to meet the cost of construction, plus a sum equal to one per cent on the whole amount of such bonds. A concession was made to the contractor, however, in regard to rentals in excess of interest on bonds during the first ten years of operation. It was stipulated that during the first five-year period, the excess should be such sum, not exceeding one per cent, as would equal the excess of the contractor's profits in the operation of the railroad over five per cent on the capital invested by him. During the second five-year period, the contractor was required to pay one-half of one per cent in excess of interest and an additional amount, not exceeding another one-half of one per cent, equal to the excess of the contractor's profits in operation over five per cent per annum on his investment. It was stipulated in regard to the interest charges that they should include interest on additional bonds issued for construction purposes subsequent to the commencement of operation. It was also stipulated that bonds issued to pay interest on bonds during construction, but not bonds issued to pay for rights, easements, privileges or property other than lands acquired in fee, should be included in the total of construction bonds on which the contractor was to pay interest. During the first ten years of operation, the contractor was to furnish the rapid transit board with quarterly statements showing the amount of capital invested in the enterprise, not including borrowed money; the gross receipts arising from the operation of the subway, and the operating expenses of the road, including actual expenditures for repairs and maintenance and for interest on borrowed money, but not making allowance otherwise for wear and depreciation. After the expiration of the first ten-year period, the contractor's quarterly statement was to show the gross receipts of the road. It was stipulated that the city comptroller, or the rapid transit board, should have the right to examine the contractor's books and put the officers or servants of the contractor under oath in order to verify any of these statements.

Under the construction provisions of the agreement the contractor bound himself to construct the railroad so that it should be "an intra-urban railway of the very best character