Boston, Concord & Montreal Railroad v. Boston & Lowell Railroad

v. RAILROADS. MERRIMACK. & Railroad Boston

Boston, Concord & Montreal v. Railroad. & Lowell Boston Same Boston & Railroad Railroad. v. Same.

Same 1881, com- 232, c. Laws the railroad of the Manchester Keene Under companies, the Lowell and the Concord purchased pany legally in 1884. and was the Lowell operated by company legally a con- and the White roads formed union of the Montreal Mountains of s. c. Laws 1883. line, within the tinuous meaning proviso contigu- the roads of lessor and lessee to be That section does not require ous, a and does not make state’s assent to lease to foreign of the 'lessee. corporate power company depend upon foreign stockholders, railroad, a two-thirds vote of lease of a approved A act is to public with the not contrary made compliance state, or set aside at the at the suit of and cannot be suit policy, who voted it. approve the stockholders does not extend violation beyond

If it is illegal, illegality stockholders; that violation an object- contract partnership alone complain. can ing minority suit, three bringing objec- an delay nearly years unexplained

By is stockholders waived. dissenting tion B not made and con- dependent upon of A’s road to is validity

A B a lease of road to a covenant that A shall existence of C’s tinuing B a statement of C’s gross receipts monthly receive from its books accounts. inspect an opportunity shall have an for a forfeiture the estate remedy an action law adequate When railroad, leave the lessor to that a lease of equity conveyed by remedy. of a an claimants railroad is ade- responsible legal process against

When the road suitable the rem- repair, for a neglect keep remedy quate be denied. of a receivership may edy of a railroad the road broken assign the lessee

A covenant to a future third earnings person, his assignment gross it under the direction of the operate assignee. to use contracting JJ., Bingham, Blodgett, dissenting.) (Allen, RAILROAD v. Thebe entered in the trial term. actions, originally The first and second are bills in and the third is a real equity, action. The first removed to been the circuit court of the haying States, United were all entered and tried in the law court, term of this under the following agreement: Merrimack ss. Court. Supreme Term, June Law 1888. Boston, & Concord Montreal R. R. v. Boston & R., Maine R. Bos- ton & R. Lowell R. It is agreed,— I. That the bill case, called), so equity (lease now pending- court, United States circuit be at once remanded to the court; New three Hampshire supreme ejectment cases— suit, 30, bill in 1888, filed March equity lease case re- (so consolidated, manded) and tried as one case in the New —be court; Hampshire supreme Boston & Lowell Railroad shall at once in notice, all said suits without appear further amended proceedings them as being- that the by joining parties; Boston & Maine Railroad and the Boston & Lowell Railroad will to remove attempt out of question said cases to arising the United States circuit court. All the now taken in each of the cases testimony be used case; in the consolidated all further on both sides be testimony taken and concluded before 1888. July The defendants’ and answers shall be filed pleas before June All the that final shall parties agree be made before arguments term, 1888, court at the December law supreme the con- case, thereon, solidated and all shall then questions be sub- arising mitted said determination, court final and both shall parties court for a decision. urge speedy II. The Boston & Lowell Railroad or Boston & Maine Railroad shall, in all and without and hereafter respects put, main- delay, tain, Boston, said Concord & Montreal Railroad into a business, safe and condition for to the proper doing satisfaction of Hon. B. Kimball Sanborn, A. and Hon. John W. who shall determine to the same. regard and renewals which the Boston & Among repairs Railroad or Boston & Maine Railroad to make on said Bos- agree ton, Concord & Montreal Railroad without are the delay following: 12 in four-span single-lattice (No. bridge report) just north of Tilton station shall be rebuilt. laid, New track shall and other stringers general repairs made, on the third north of Tilton No. bridge No. (bridge 14). Tilton, trestle over East shall be highway rebuilt. The trestle over the river at East Tilton Winnipesaukee (No. Hill so Rum called 17), and Bath bridge, 66), (No. Upper bridge, RAILROAD v. RAILROADS. rebuilt, shall strengthened called immediately so and (No. 68), suitable as to be made safe and in such way repaired of said Kimball road, to the judgment business according and Sanborn. Boston, Concord Montreal bridges the other on said All of Railroad, culverts, not now in safe stringer including bridges shall be at once suitable condition business said rebuilt, Kimball and according judgment repaired Sanborn. & Lowell Railroad or is also the said Boston agreed Boston, once into Con- Boston & Maine shall at put Railroad ties, ballast, line sufficient cord & Montreal Railroad quantity into a safe suitable condi- said road steel to 60-pound put business; unable to but the tion for being agree upon needed, the same number amount of each are the shall precise of said Kimball and determined be according judgment & & Railroad and Boston Maine The Boston Lowell Sanborn. Railroad make, without all other repairs agree delay, in which be order entire renewals into a safe may necessary put business, suitable condition for according of said Kimball and Sanborn. judgment traffic not be diverted the Boston & The of the road shall by The Railroad decision said cases. usual Maine summer pending Boston & business shall be Lowell encouraged by Railroad, and the shall be service kept passenger equipment to that of equal past years. III. contained and either agreement, foregoing nothing Nothing it, under be as an admission shall construed done by party it, used, discussed, and shall not be or considered determin- submission; merits the case and neither final shall upon ing or affect the manner or basis of between the it change accounting parties. differences of said Kimball and said All between San- opinion Kendrick, be R. shall at once submitted James born general Railroad, who shall the Old determine Colony finally manager what how be much shall done. such and execute all further The will make agreements into or convenient to effect. carry necessary foregoing may In consideration of Boston & agreements by foregoing Boston, railroads, the & and Boston Concord & that, for the Railroad Montreal application appointment agree relief, receiver, other shall be suspended. temporary Concord, H.,N. May Railroad, Boston & Maine H. Richard Charles Burns. by Olney, Railroad, Boston, & Montreal Concord Streeter, solicitors, & Chase Mitchell. by Bingham Railroad, Boston & Lowell T. Jefferson Coolidge, President. by There were 1671 printed pages pleadings, depositions, evidence, (cid:127)documentary pages printed argument. Streeter,

H. Chase Bingham, Smith, Jeremiah for the plaintiffs. Strout, Benton, Jr., A. A. J. JI. Burns, R. and C. U. Olney,

the defendants. Doe, C. J. The first of the three suits is bill in equity, which the ask a decree plaintiffs of the con- against validity tract undertook to lease their road to the Lowell in In 1884. could 1883 the had all the legislature given authority they the road certain conditions. give leasing “Any railroad railroad lease its road ... corporation may such terms and for such time as corporation upon bemay .. . . directors, and as . . . agreed ap- two thirds of all the votes cast on that proved by subject by stockholders. ... railroads, No now competing prohibited law from shall have a under the leasing uniting, right pro- roads, visions of this act to . . . lease each other, unless said them, or one of has heretofore leased or united with some other roads, line, road or for the a continuous purpose forming hereafter, shall (cid:127)or lease some other road for or at the time of such . . . unite with . . . Railroad cor- purpose. created states, the laws of other roads porations within this operating state, shall have the same rights purposes the laws of . . . . . . other roads as if created leasing 1883, 100, this state.” Laws e. is, ss. 18. first The question whether complied lease of the Montreal road to the the Lowell company with all the terms law as conditions of the prescribed by state’s assent. The lessees are a Massachusetts Were corporation. they state, a railroad in this within the of s. 18? “operating” meaning word, In the literal and sense of the were ordinary they operating the Manchester & Keene road. and the Concord They company had it. Each of the had deed a of bought corporate purchasers an sense, undivided half. In a and were practical equitable they of the road. The Lowell were for joint proprietors themselves and operating the Concord. For of many purposes the Lowell were Railroad, responsibility, N. H. proprietors (State if were under a 410) they operating legally, good contract, title or valid with the consent of the state and of all interest, it is not material who had the and loss. profit The Manchester & Keene had their road company mortgaged under c. Laws In an act authority given been entitled had “An act in relation to the fore- (e. 232) passed, closure of the Manchester & Keene Railroad.” The mean- legal v. RAILROADS. the cir- affected by of this materially peculiar of act ing parts act far which the shows the of disaster danger cumstances The foreclosure contemplated intended provide. legislature the Keene the of Manchester company, indicated bankruptcy of their duty transportation their public inability perform to accommodate. tlieir road was The in the district designed of of the the need sale and powers of act third section recognizes the to secure effective completion purchase specially adapted understood the The there evidently road. legislature operation was reason be a to fear that whatever sale prospect might would be there in find- of some or difficulty part parts debts, and take all a willing pay ing purchaser maintain, and operate with an whole complete, obligation in this act contained of it. shall “nothing stipulation, the discontinuance be construed to authorize said any portion road,” the trus- given reveals an authority apprehension “ a suitable tees sell as whole parts,” authority “ the whole thereof to any part to sell at pri- given purchasers sale, best calculated think such sale secure vate road,” be construed the whole effective an might of some would assent to a discontinuance pay While the bankruptcy expense operation. irretrievable, be might the losses of the stockholders a and under a sale save of discontinuance might something prohibition to the loss of the creditors without public subjecting any part road. from discloses no to withhold nonresidents The act purpose their into and devot- jurisdiction, privilege bringing money it to use in this contains enterprise. no unpromising ing public a under disability, allusion to their peculiar subject laboring out of this them branch no reason shutting suggests to be service. It does not made purchase require public person. Neither more than one corporation, express terms, does it purchaser nor fair require implication, of New United States. In citizen Hampshire extinction, it to rescue the that the from is not to be attempt assumed highway must have meant to deprive legislature pub- aid and services that lic of the personal might pecuniary For offered foreigners. necessary by strangers proper- road and would be sub- operators purchasers purposes, ject law, to New verdicts of New Hampshire Hamp- courts, shire state and federal. There in the act no juries of of this court intimation a on opinions preference ques- law, of or an intention to an tions local to remove adopt inability court as a test of the to be a case to federal a right purchaser. “ consent is a railroad com- purchase Express given by any this Taken without clause includes qualification, foreign pany.” “ as well domestic railroad The as words rail- corporations. any ” be road used a connection and for a company might purpose that would show a restricted sense not com- including foreign Here is no of evidence a to exclude them and panies. purpose act, for general scope impending danger the best available furnish abun- attempted provide remedy, to believe dant reason aid was rejection foreign “ intended. So much the road be as purchased may by any therewith, or railroad either connecting lines directly through which it or be made leases a operates, may thereupon part aforesaid, railroad same the same as if it purchasing had railroad; as a of its been railroad incorporated originally part said have all the shall this rights, powers, privileges necessary act into effect.” How railroads many are carry connecting It this clause we need not within describes the inquire. Lowell a a authorized to be so far as can company purchaser, authority New law. clause, And without given by Hampshire con- this to what extent the & Manchester Keene road must sidering have a to be been New means communication between southern designed Boston, and to what Hampshire extent economy would be convenience consulted run as a public the being part Lowell, a intent to exclude the Lowell and legislative every from the other foreign could not company purchase right without clear evidence so found discrimination cal- manifestly defeat the culated to act. object Words number literally extend importing singular when such is their several things persons apparent meaning. construction, this rule of the act authorizes By several railroad to be of the whole or companies joint purchasers any part this road. And is in the of s. 4 meaning provision (amended by c. Laws certain to “the 1883) giving authority Railroad, said railroads Manchester Keene purchasing any ” “ thereof.” The railroad or railroads making purchase “ bonds, are to issue authorized secured on their own mortgage road, ... or on the both property purchased, jointly.” The were content all the needed legislature giving authority invite aliens, could bids from citizens and they give residents non-residents, incorporated railway companies unincorpo- and to induce them rated to save this use, persons, public to exclude want without undertaking foreign corporate The consent of another state was not made a condition of power. the consent of this state. The amake authority mortgage stock, increase which was to those capital given purchasers it, New could whom included the assent of give this Hampshire of this state to a road and a road of the joint mortgage foreign company with the purchasers. operated state, under the act consent of of 1881. If stockholders ever the Lowell were entitled to state, an in this injunction waived laches. The burden of has apparently proof defendants; to the does shifted from the not been plaintiffs that, the Montreal at the date of not appear from Man- have been expelled by process could legal company chester case, of this road. For all the & Keene purposes : an that road lawfully illegal operation were operating under s. 18 of act be sufficient not nothing would that is made section. than a one by more necessary legal the condition that the lessors or was If the lease subject or unite with some other road lease lessees should purpose line, the union of Montreal White a continuous of forming with the condition. That was a union Mountains roads compliance and no is within literal meaning requirement, ground which it can be held not be within the has been suggested The reason that induced legislature accept legal meaning. is not loss stated in competition extension compensation can inferred is and suf- act, and be fairly competent none than other condition a union or lease for evidence ficient The a continuous line. of the the adequacy purpose forming court, not but is settled submitted by compensation statute. not have los- stipulated legislature region shall receive the benefit of benefit of exten- competition ing sion. there no benefits are vested private In such public rights If, of this an the construction act. that affect investigation facts, should be in this we compensation opinion or does not accrue to the case inadequate, territory losing or that lease there every competition, advantage would be not possible condition, a with the such an could compliance opinion a which have chosen to qualification legislature impose There is no in which a omit. jurisdiction probably legislative a more mode is carried into effect liberal of construc- purpose tion that which state. But most than liberal prevails than the of that construction is more ascertainment nothing pur- no evidence. Here is evidence of a from condition pose at variance competent with, of, or in and natural expansion ordinary formed a union or of a continuous line lease. This meaning suit is an exercise of who corporate power acquired by persons amount of Montreal stock for the a bought controlling purpose it, the road from the lessees and lease or other- uniting taking wise, shows the with the Concord. The evidence Concord have line been advised that the formation of a continuous the union and the Concord the union of the Montreal would of the the legalize Concord and the Manchester & Lawrence. This advice gave have construction been proviso, legal designed case, or some without effect as special regard clause to other cases. If to general applicable design more than the formation of a continuous line require something union, or other the act does show what other con- dition the intended impose. legislature RAILROAD v. RAILROADS.

The of the lessees need not adjoin that of the lessors. On and in relation to the point, of a foreign authority foreign the act is silent. An intention to company, require contiguity roads, or to make a condition of foreign New authority Hamp- assent, shire’s is not proved evidence. The competent by validity of the lease is not stockholders of disputed by the Lowell. The lease of the Montreal to the Lowell with all the complied terms the law as conditions of the prescribed state’s assent. Neither state, nor lease, Montreal stockholder who voted can maintain a suit to set it aside. If all the stockholders had it, voted for assented to this bill would be dismissed because neither nor the could of their they corporation own act. complain If the lease had been is, that contrary had been public policy, .to the will of the interest, state as a contrary able at the suit of the and abat- party state, there would have been a question bill whether a the lessors seasonably could be sus- brought by tained. But the lease is not in the sense contrary public policy in which those terms are used in this connection. If it commonly does not extend illegal, beyond its illegality violation' stockholders; contract of the Montreal partnership violation the and of that alone could objecting The lease minority complain. allowed and state, being power ing party his so far approved legislative can allow and it, can but a dissent- approve nobody object interest, or some one him and representing acting behalf, because else is nobody This is a aggrieved. private suit, in which no one has a to be heard who is not interested right in the decree. Central Collins, Railroad Co. v. 40 Ga. 616. state, Neither the corporation, of the stockhold- majority lease, ers who voted for the nor their can contest the lease assigns or their made or they authorized assignors to be made. Whether the suit could be maintained if seasonably brought name of the as a corporation of the representative dissenting we need not now minority, than would if sole The bill stands no better inquire. that in their brought by own. names as minority after a refusal plaintiffs, to act for them. If the suit could be regarded or for the brought by minority, it could not be maintained. The bill was filed 1887. April lease, that the was alleges a vote of the approved stockhold 12, 1884, ers June and that it was executed June When the had minority lease, vote or the knowledge they would waive their claim for relief equitable not prosecuting with equitable The suit expedition. was three brought nearly after the lease was made.. years time the lessees During became involved in extensively and liabilities incident obligations to the business of the leased road. running The needs delay and none is explanation, It is said the given. minority supposed question a lease of another validity road would be settled in Dow v. Northern R. R. is irrelevant. supposition have for their inaction. It does not account They may hoped, Northern that Dow even against expected, prevailed without suit. But it be surrendered the Montreal would the result in the Northern case a hope expectation them from It was for a induced to refrain litigation. very law. A suit not resort to the different reason did prose- they name, of others in their benefit no cuted having action, have been and there is cause would unavailing; legal no themselves to have allowed would presumption they themselves, mere nominal A suit plaintiffs. prosecuted by name, their own name or in for their own benefit and at their own is a have never intended to take. expense, stop in other The which agreement, eighteen persons pursuance stock of for the the the controlling bought purpose majority lease, 20, 1886, the is dated May contesting two the The after the lease. defence date nearly years was not for partnership rights which minority among objects made, which that and for this suit was was purchase Were treat in to brought. possible minority plaintiffs interest, it would to that the remain find Northern case impossible was the cause of this other suit not being brought by theirs, for at them an the suit is that early Assuming they day. were bound raise, to know three that a would delay nearly years in the of laches that a was not equity jurisdiction, raised question in the Northern case. action, The does not cause of delay destroy minority’s one, had but it number of they affects the their remedies. If they have a a of action law have grievance, they right against the. Montreal their violation contract. In company partnership such lessors, an action can recover all the dam against they to ages which to are entitled. Their the additional they right redress of an would enforce injunction that specific performance of the a contract is partnership justice. Eckstein v. question 64 N. H. If desired the Downing, cumulative they in have done should remedy equity, they equity by applying is, not their whether comes promptly. question delay a but within technical rule of whether was unreason estoppel, able. It was not that should leave the lessees equitable they risks controversies exposed two railway arising during successive did not lawsuits. Reasonable diligence permit Montreal to the decision of the wait for Northern case. minority did not know the answers that would that all be made to They this bill be would that decision. More than one disposed defence is set here was not that up presented Northern case; and the an unwarranted that consequences assumption the defences in both cases cannot would be the same be justly put not the lessees. As this was action to upon con seasonably begun test the it is of the to exam- original validity necessary VOL. LXV. RAILROAD contract Montreal ascer- stockholders ine partnership it. is a violation of the lease whether tain rent, the most unfavor- construction the contract regard Of sum, is, a fixed are to maximum to the lessees pay able manner, show, contract, in a that a unless they of prescribed a certain is the result computation upon gross sum less but a minimum is Northern and four roads: receipts be There has rent cannot reduced. fixed below also been rent, or the covenant no breach of express express pay render to statement plaintiffs gross ag'reement roads, or books tile covenant that of the five express receipts the five be to the business of roads shall open relating accounts the lease of Northern But the inspection. plaintiffs’ annulled; been defendants has judicially branches existence continuing contend validity plaintiffs that had tarily their in the made If lease was dependent. the Montreal the Lowell volun- should terminate case this lease intended Northern, ceased to or control or involuntarily operate of their contract failure put important part accidental suit reformation of have been cured in a lease could In the lease there is no instrument. express stipula- defective the tion of be found that kind, no evidence on which it can direct would naturally condition expressed (which left to from the terms) intentionally implied distinct and mode the amount lessees are to ascertain and show in which the of the seek to avoid if payment largest to be they paid of rent not or a reasonable contract. It is in the necessary named sum to the lessees to their of right that the inability prove inference sum their of a less would extinguish the road' payment hold of the maximum. If writing hold it on payment right no have cause of They complaint. plaintiffs literally, construed due, or received less rent than have claim that they not do that rendered, not roads has been of five receipts the statement “ Lowell all books and accounts kept (the or that by to the of demised premises relating corporation) named, be herein so far as the other roads of business the necessary the amount whereby not determining gross receipts and proper rent is to be have been ascertained” to be paid con- The letter of the written inspection. plaintiffs' open or control that the defendants shall not operate does require tract to render the statement without the con- Northern, be able Northern, books or accounts sent operators shall be defendants inspec- open plaintiffs’ by not kept intention of the proved by And legally tion. upon no in the have stronger posi- plaintiffs contained evidence tion is no evidence the document. There the letter of than believe, and the that the statement of receipts reason no accounts books and were given to inspect opportunity RAILROAD v. RAILROADS. than to furnish means of information on the purpose amount rent to the defendants should question paid raise that the maximum. Whether a strict question by paying without intention of the interpretation looking accepted meant, or their words are evidence what parties, weighed result is the same. The lease the Montreal was not made existence lease dependent upon validity continuing of the Northern.

Bill dismissed. All concurred. of the second bill March substance is stated (filed 30,1888)

in the opinion. Railroad, & Maine Boston filed June [Answer 1, 1888.] defendant,' This to itself the benefit and reserving advantage bill, which can be taken any exceptions might demurrer, otherwise, or formal for answer special thereto follows, wit,— saith as June, that the 1884, I. admits on the 19th plaintiff, day lessee, inwas either as owner or possession, railroads and bill; branch railroad described June prior 12, 1884, the directors of the and of the Boston & plaintiff Lowell Railroad made an for a lease of the corporation agreement plain- tiff’s several railroads to said Boston Lowell Railroad corpora- tion that after said thereto, pursuant agreement, directors and stockholders of the bill, voted as stated in plaintiff severally said to and aof agreeing approving plaintiff to said Boston & Lowell Railroad of the tenor terms of an indenture of lease made copy said bill; that said indenture of lease was duly ex- ecuted on behalf of the and said Boston & Railroad under said lease was corporation; given said and assumed said Boston & Lowell plaintiff, Railroad 1884, June and has continued as corporation, alleged said bill until October defendant, and as hereinafter alleged a,nd continued, continues; has ever since still that said Boston & Lowell surrendered Railroad corporation of Northern, Claremont, & Concord & Peterborough Hills- railroads, 1887, 1, decree borough that a of pursuant court; July June, 1887, on the 22d of this defendant made a day contract of lease with said Boston & Lowell Railroad a corporation, portion of of which the provisions undertakes to set plaintiff out in bill, said but all the of which are contained provisions a true “A,” contract, of said marked hereto annexed and copy made part answer; of November, this on 18th A. 1887, D. day in its described said lease entered upon premises

plaintiff and under- said Boston & Lowell Railroad corporation, assuming estate so thereby to do for determining purpose taking granted lease, as of said of certain conditions for an breach alleged simultane- written instrument executed of a appears copy hereto annexed marked of which is entry, with said ously copy “ the 29th answer;' that on B,” made of this day part 1887, suit law November, A. D. brought against court, not defendant, this but which suit is this now pending, said and railroad railroad prop- the recovery plaintiff’s bill, fully' but for a thereof —as as said only portion erty appears alleged of’record; lease between said Boston that in contracts of Brook and and said Wilton & Lowell Railroad corporation Stony railroads, Railroad cov- said Boston & Lowell has respectively, not that it would with each of those assign, enanted corporations underlet, with- of the leased with the premises part lessor; consent, case, and that the in each out the written railroad and fixed plaintiff’s operating expenses charges thereof, 1887, 11, said have exceeded the since October earnings has this defendant. that such excess been paid denies, admitted, herein each and It as every allega- II. except as if same bill as tion of fully particularly denied. were herein repeated specifically has intended or contrived denies that it ever III. specially railroads, with the except plain- acquire possession assent; hold, that it threatened to or is now tiff’s ever holding has 1887, railroad; 1, from April or operating, 11, 1887, it controlled the Boston & Lowell October managed lines, thereof, or of its leased Railroad any corporation, any railroads; 11,1887, that after October it oper- including ated, as continued to the roads operate, plaintiff, except stated, Brook and or the Wilton hereinafter alleged Stony railroads; said that said Boston & Lowell Railroad corporation, since, October, or at time has ceased 11th day any controller, as a exist manager, operator property, has itself or other deprived rolling-stock, equipment, voluntarily railroad; of a that since necessary October, said 11th Boston & Railroad said day has no or income its semi- received money except corporation dividends and its expenses, annual organization paid defendant; 11,1887, October said Boston & Lowell this since no has dividends Railroad expended money except corporation said Boston & Lowell Railroad expenses; organization defendant, does under its of lease with this contract corporation, receive, receive, and cannot or income expect money aforesaid, to for its dividends and expenses, except organization defendant; October, this that on said 11th day paid over to Boston Lowell Railroad turned said RAILROAD v. RAILROADS. railroad, defendant all and contracts with property, railroads, 19, 1884, other lease of June including plaintiff’s and at said time and turned over to this defendant all discharged directors, its officials and and employés (except president, ; and the business of railroads treasurer), that quitted operating the consent of the or of said Brook and plaintiff, Wilton Stony railroads, to an to this defendant of the respectively, assignment lease of each of said railroad to said Boston & Lowell corporations Railroad said 11th has never been asked or that on corporation, granted; October, 1887, since, or at time this defend- day any took, taken, ant has or has of the road of the possession plaintiff, the same officials operated for through appointed duly October, 1887, that of said or on said 11th took purpose, day railroads, Brook and Wilton and has ever since Stony pos- same, sessed and stated; as hereinafter and operated except alleged that said Boston & Lowell Railroad has no corporation officers or for railroad; that all the employés offi- operating an}? now, cials 1887, and and since 11, October employés engaged roads, been, are, said three have hired said operating Bos- ton Railroad, & Maine from its that all paid treasury; gross income received from each of said three roads since 11, October 1887, defendant, has been turned into the treasury and other of said three roads been operating expenses there- paid from and that under the lease between this defendant and said Boston 1887, & Lowell Railroad June future income of the and said Brook and Wilton Stony railroads, 1, 1887, from is to be years April taken ninety-nine defendant, and all and other operating said expenses three roads to be said term. paid by during IY. denies each and fraud, every specially allegation facts, unfair dealing misrepresentation, and of suppression business, of fictitious and methods employment machinery, contained, bill as if each fully alle- explicitly denied, were here repeated specifically denies gation at at that called conference of officers of the defendant, any hurriedly conference, other was fictitious any agreed machinery and methods had been used the defendant for keeping posses- railroad, sion of and or were operating dangerous unsafe; the defendant must other and provide more deceitful and delusive methods and machinery operating railroad; retaining and for said thereupon, the defendant invented and purposes, new adopted methods, and a machinery separate heads organization officers, to departments superior deceitfully appearing railroad for and in behalf of said operate Boston & Lowell Railroad and either corporation; the cir- thereupon cular of circular, November fraudu- dated and issued this defendant. lently RAILROADS. that since It denies the of the the possession V. taking specially but denied railroads plaintiff, (alleged by

plaintiff’s 19, 1884, of June it has under said lease defendant) the permitted that on said bridges depreciate; plaintiff’s road-bed, unsafe, or that the or the ties and rails become line have thereto, not been have repair; kept proper belonging cars, used on the and other railroads equipment engines, are road; unsuitable said unsafe or proper operation and new steel rails are new locomotives absolutely required; use, in use on said are unfit for now and that all locomotives that the station-houses be sent to the repairs; shop ought on road are out and that a said repair; and ruinously buildings wit, two hundred and thousand dol- sum fifty money, large said to be railroads expended upon lars (1250,000), ought to make same safe and in order conven- and repairs, renewals them. travel ient public of the of the that the lease roads to said It plaintiff VI. alleges indenture & Lowell Railroad dated June Boston corporation, by 1884, 19, directors said Boston & was duly agreed and its stockholders approved Lowell Railroad corporation, to, and as authorized the laws state of by, conformably Massachusetts; that said Brook and Wilton railroads are Stony between the Nashua & Lowell under contracts Railroad operated said Wilton and Brook railroad Stony and companies,. company 1860, 26, 28, and dated October May May respectively, this defendant as said Nashua agent attorney that neither itself said Railroad Boston & Lowell nor company; have done Railroad corporation anything respects & Lowell and bona or its except openly fide, pursuant property, plaintiff contract of lease between them of public provisions to; 22, 1887, referred and that hereinbefore epithets June conduct, to the defendant throughout applied profusely “ “ bill, as “subterfuge,” equivocation,” secretly,” plaintiff’s —such “fictitious,” “deceitfully,” “falsely,” “delusively,” “clandestinely,” impertinent irregular “fraudulently,” “cheating,” —are and as matter are with- argument matter of wholly pleading, facts, even as alleged by out justification itself. the said Boston & Lowell Railroad corpora- alleges VII. surrendered railroad or never possession has tion thereof; but, of its the covenants pursuant 22, 1887, has remained in of June there- defendant the of, same in all con- said respects conformably and operated material, tract, for that purpose necessary supplies, retaining receiving money, property, gross equipment, thereof. income railroads, road-bed It alleges VIII. thereon, used are thereof, equipment rolling-stock RAILROAD v. in no condition than the same worse are at the usually only season, of the winter but end are better condition than they have been at the same season that the customarily year; Boston & Lowell Railroad said substantial and is now corporation making such renewals and thorough repairs upon plaintiff's thereon, used roads and as are made at equipment always season, summer and as will enable them to be opening oper- ated with and that since the safety efficiency; rail- have come into its the said roads road Boston & Rail- rails, has in new steel expended bridges, station water-tanks, turn-tables, and other building, better- permanent railroads, ments on said more than two plaintiff’s hundred and thousand dollars so that the (§>250,000); fifty property, said Boston Lowell Railroad in railroad plaintiff’s instead of while in the having depreciated of & has corporation, enhanced largely value, as well as in its and fitness for use in the busi- capacity ness of railroad transportation. e of & Railroad, Boston filed Jun [Answer 1, 1888.] defendant, This leave of court and by agreement parties, in the Boston, several suits in which the appears Concord & Mon- treal Railroad is now in the plaintiff, court in pending supreme of New the state and Hampshire, mentioned agreement 1888, Boston, 7, between the Concord & May Railroad, Montreal Railroad, & the Boston Maine and the Boston & Lowell Railroad and corporation, makes additional answer to said following suits in several which either it or the Boston & Maine Railroad is the defendant: The said defendant, that the is not insisting plaintiff entitled to for, the relief prayed or advan- reserving rights, privileges, would be entitled tages under a or formal special demurrer to contained bill of reaffirms the complaint, allegations and amended answers to the original bill of filed in the complaint court formerly supreme said state of New in the eastern Hampshire, district for judicial the county Grafton, on the 22d 1887, A. D. day April, and referring answer, to the same as of this reiterates the part denials and alle- contained; therein and in

gation further answer to the bill of of said the Boston complaint plaintiff, against Maine Railroad, in the filed mack in said said court within and for the supreme of Merri- county state, 1888, March to which it has a become defendant leave of court and said party agreement, says,— June, That on the 19th day was the plaintiff owner of or in of railroad described in its said bill June, that on said 19th complaint, day the plain- tiff defendant, executed to this corporation pursuance RAILROAD v. valid bill, a lease of votes alleged agreement all of which lease and the votes its said railroad copy property, and made a hereof are hereunto annexed part thereto

relating this avers said defendant A); (Exhibit authorized law and were lease votes of empowered duly same, and and execute the said make corporation lease, take said defendant was specially empowered the covenants and lease contained agreements appearing said A, set out in of which are bill of Exhibit said stockholders said but this defendant denies complaint; ever said protested against objected plaintiff lease, at the holden special meeting Plymouth, except 12, 1884, shares of stock voted against June owning persons 12, 1884, lease, since but that June stock- of said approval rent holders said corporation, by receiving accepting under said have in and acquiesced benefits the no ratified arising same; until commencement of said and that these proceedings lease; ever been to said than above have made other objections it has been to make this defendant joermitted large expen- says ditures rolling-stock from said without said leased to but with plaintiff objection plaintiff, is, and at its and that the consent l-equest; be, from should want for- and in setting up any estopped equity in the execution of said or lease. mality legality lease, 2. in accordance with of said this That provisions control of full and said leased railroad defendant took and possession Railroad, and including Pemigewasset Yalley property, in held, the same with and controlled accordance operated, lease, not of said from said and covenants 19th only agreements 11, June, 1887, in A. D. until October alleged day bill, has and controlled the but same possessed, operated, plaintiff’s 11, 1887, time, to the and still continues said October present from leased in and control said accordance to possess, property operate, lease, said and has ever continued to the terms of faithfully covenant, and con- and every agreement, undertaking perform keep tained to be it and and has in in said lease no performed, kept of the said lease nor covenants and violated agree- manner ments has any This defendant further it therein contained. alleges, said and added to the business done property improved greatly railroad, and its has said money perma- over expenditure said railroad and leased and that improved property, nently effort has become of much value and effi- said greater property and than was transportation passengers freight ciency the time said lease was made. and at before that on the further true 22d 3. defendant says, .This June, 1887, Boston it executed to the & Maine Railroad a day of its railroad whereof hereunto copy property, lease B, answer; annexed, made a this Exhibit marked law and the votes oí was authorized by lease tliat said it alleges thereto, and that in directors the stockholders October, 1887, it lease, trans- the 11th day said pursuance ferred rail- Maine Railroad possession the Boston owner, and of the absolute it was of which road and property and of to transfer possession, right it had legal which Railroad had & Maine legal right Boston the said that it did further alleges, This defendant take possession. with the underlet or or parted has and never assigned lease June to it demised plaintiff by of the premises A, Boston & Maine Rail- to the either 1884, marked Exhibit and has not road, parted person, or to any thereof, still controls but operates, the control possesses, with the same of said lease. It also with the provisions accordance the Boston & Maine lease to Rail- time of said that at the alleges since, reserves and reserved and still possesses and ever other means with which to sufficient equipment, rolling-stock, leased of the as afore- railroad and said property operate said, sufficient its direction a number of retained under it has said demised railroad to control officers operate and employes with said lease of June conformance in strict and property, !884. in said denies the bill of complaint This defendant allegations of said motives and lease to the Boston & purposes relating lease, Railroad; said it denies that clause or cove- thereof, made for the the Boston & nant purpose allowing consent, the Maine Railroad against plaintiff’s acquire;, A, Exhibit lease marked or to mentioned in said acquire plaintiff’s by “subterfuge, equivocation, bill. denies that said Boston as alleged quibble,” hold, or is in either threatens fact & Maine Railroad holding, mentioned in the railroads controlling, operating, A, of said violation and that marked Exhibit leased interest in or to said defendant has no property, posses- thereof, bill. said sion alleged it surrendered admits that 5. This defendant Claremont, Northern, & and & Concord Peterborough Hillsborough railroads, 1, 1887, to a decree of the court pursuant supreme July but this defendant New that it of the state of Hampshire, alleges the full amount of rental and has ascertained paid plaintiff A, Exhibit lease marked and it that for said alleges provided the fixed railroad, named in said plaintiff’s charges 1887, A, have, October, eleventh of since the exceeded Exhibit day thereof, such excess has been for the the and that paid earnings Brook and that said Wilton railroads alleges Stony plaintiff. between the Nashua & under contract Lowell Rail- are operated said Wilton and Brook and corporation Stony companies 1860, 6, 1872, and October dated May May respectively, RAILROAD v. or if the Boston & Maine said railroad 1868, and that operates them, as of said & Lowell of it does so the Nashua either attorney Railroad, such does affect the and that operation rights whatsoever, in it denies the in and manner any allegations plaintiff relation thereto in bill. as set out plaintiff’s stated, denies, each as herein otherwise 6. This defendant except bill as and in fully and particularly every allegation denied, and herein out and if the were set specifically as same or there or it that was denies any pretence, suggestion, especially

fraud, the several or in relation to the concealment management that the bill,, mentioned in the or railroads and properties or controlled same were Boston & Maine Railroad managed privately clandestinely in under the cover and the name or for the & Railroad as therein Boston Lowell alleged, purpose forth; denies time since set it that at October therein 1887, any existence, time its this defendant has it has or before that during of all railroad or that ceased to exist as a manager property, and itself necessary deprived rolling-stock, equipment, supplies railroad; the 11th of a it denies since day any operation October, 1887, from it has received no income money use, its dividends and source for its own excepting organization it no since said has date and money expenses, expended dividends that received from purpose except organization any expenses, or cash, from source and that cannot receive any money, the Boston & Maine income from Railroad except treasury bill; in the term of as said denies for that years, alleged ninety-nine it has turned over to Boston & Maine Railroad its railroad kind description, including premises property every and has turned over to leased discharged plaintiff, Railroad, its & Maine officials Boston employés, excepting treasurer, directors, and has the business of quit president, railroads, bill; in it denies the alleged said.plaintiff’s operating bill there was contained pre- any allegations tence that named, railroads therein there of its any purpose deprive court, cheat and the or to public, rights, plaintiff,, bill; that this in said denies defendant .has ceased as alleged is the that it and servant of the a corporation, agent pretended Railroad, officers, & that it is a without Maine Boston cash, resources, that it is use name its own helpless employés, the Boston & Maine except bidding proceeding, Railroad, arrogantly, scandalously impertinently, alleged bill, are alleges allegations neither.per- character; of this it denies that nor tinent proper proceeding fictitious business methods there are machinery adopted Railroad purpose it or Boston concealing of the railroad leased of or that plaintiff, real possession methods Boston & Maine Rail- false and deceitful machinery RAILROAD v. railroad for one operated possessed month plaintiff’s time; or for and it denies that it ever consented or any authorized to be to the Boston & Maine Rail- any warning given road; bill; as in it denies that its chief alleged officials ever did such it denies that there were give warning; deceitful any and delusive methods of ever invented used for machinery of railroad leased of operation alleged possession plaintiff, bill; it denies the allegations relating the invention and construction of new and methods machinery of said railroads leased of the relating as operation plaintiff, bill, in or that officers were alleged fictitiously therefor, and that due measures appointed have alleges proper been taken to control the roads leased of the operate plaintiff lease, of in accordance with said and that this provisions defendant has taken care not with the especial part possession road, said violation of the clause of permit any said lease in relation thereto. advised, And defendant is not and therefore denies the claimed Maine admissions the Boston & bill; Railroad, in said that such ad- alleged alleges made, missions have been this defendant is in no bound way thereby. This admits that 18th November, 1887, defendant on the day entered the railroad described in the lease plaintiff 19, 1884, June a breach of the lease, covenant of said claiming “ that this defendant will not or underlet the here- assign premises demised, thereof, with by written consent of the first part possession except for the plaintiff),” party (the purpose lease, estate said of by created but it denies that determining such the estate or of this defendant under said entry rights divested, lease were determined and and that notwithstanding Railroad, & Maine Boston violation of the covenants entry, lease, of said and without retained unlawfully, right, the railroads and railroad named in said and now property holds the without same as right, said unlawfully, bill. alleged This that on the 29th November, 1887, defendant admits day suit at law Boston plaintiff against brought Railroad for the railroad and recovery part property lease, wit, in Said named situated in of Merrimack the state of New county Hampshire. 7. This defendant denies specially taking since named in the lease of June vol- itself untarily deprived power perform cove- nants that it has said permitted depreciate its to condition so as to be unsafe hazardous for the general public travel on said railroads have been im- upon; bridges to become unsafe and imsuitable neglected, permitted properly railroad; and cars the business over said engines doing v. RAILROADS. RAILROAD [Merrimack.

412 have not been renewed and of said railroad kept the ties and rails said lease and the demands covenants of in according repair thereon; that and the business rolling-stock, travel of public and used said railroad are insufficient cars engines, equipment, unsafe, road, and are and are in an unsuit- of said the business for in use on that locomotive now said condition of every able repair; railroad, be of said sent in the road proper management ought, rails, and other new than for that locomotives to the shop repairs; furnished, absolute for are an those from time time necessity railroad; on said railroad that station-houses and buildings said that hundred and thousand of and two are out repair, fifty ruinously dollars, over and above what this defendant sum money any furnished, be to be is necessary is to furnish or cause expended and in to make the in renewals order on said railroads repairs, thereof, and the business that same suitable for public doing railroad convenience, and and said and preservation safety bill. such as in said demand alleged any expenditure property, that said railroad and is And this defendant in alleges property no worse condition than what would re- expected, reasonably and the road when leased had condition gard being ended, and that of the winter nature just rigorous are for reasonable im- is now as repairs necessary making as are sufficient to make it safe and of said road and provement for the accommodation summer travel and business convenient same; and it further that since to be done over the alleges, of said it has the same that at time railroad greatly improved unsafe; so out that of said lease said railroad was repair rails, renewed and relaid instances has put many bridges and increased the new efficiency equipment rolling-stock, thereon; said road the business it has repaired, painted, the line of said the stations greatly improved along to use added to the convenience of the occasion public having same; sum it has and in these improvements expended up- dollars, of which has ward of two hundred and thousand fifty been and its directors without received plaintiff corporation of dissent. objection sign & Maine has obtained denies that Boston Railroad posses- in the sion of said named lease of plain- property, tiff, fraud, manner, said and that road trickery, cause, and to waste and deteriorate from permitted and business must result loss great irreparable said unless the relief bill. prayed granted, alleged fraud, And this denies all secret defendant allegations trickery, combinations, action, and like contained unlawful cheating, charges bill, said are in said without alleges justifica- allegations tion, said is not relief entitled prayed in said bill. v. seek to enforce a bill the lessors for the second In C. J. Doe, alleging estate conveyed feiture of road, and underlet the its. parted have lessees assigned No reason covenant. appears breach of why in forfeiture possession, suit not be settled should pending question law, Walker, settled Walker it should be chancery. or why 321, 328. also ask appointment N. H. plaintiffs run it during litigation,, to take receiver because of it in suit failure operators keep alleged no able and If there were responsible persons legally able repair. be in the road such a might duty, perform compellable a receiver. as to But the condition require ruinous and dangerous Lowell company to be the claiming are responsible persons, their and compellable by duty, process acknowledging operators, of law in this claim. It is case their necessary to do upon are the the Lowell the Maine whether operators., to inquire receiver, assume, for the law to a is no occasion through And there a can be which of responsible, legally repair company duty to perform. compelled Bill dismissed. concurred. All Boston, Montreal Railroad Concord & Law, In THE Suit Railroad, the1 and Boston & Lowell Boston & Maine Railroad

v. writ is as : follows of New State Hampshire. Merrimack ss. [L. S.] : or his To the County Deputy of Sheriff Railroad, to summon the Boston & Maine yon command a We law, and business at established Dover duly doing corporation in of found (if in our your precinct), county .Strafford court, to be holden in before the Concord in supreme appea.r next, of Merrimack on the first of Tuesday said county April Boston, Railroad, & Montreal Concord a answer corporation law, aforesaid,— business at Concord established and doing duly In of land wherein demands defendant a plaintiff plea Merrimack, in of land situated said of and certain tract county from a Concord, tract of land said extending point being through Northfield,. the towns of and said Concord and Canterbury in the line between said of Merrimack and our to a county point all the land within said county being county Merrimack Belknap, the railroad of said plaintiff corporation constructed, with said railroad and all the located together lands, stations, used or for railroad and buildings occupied pur- therewith, said route connection and all

poses upon along thereto; and easements way appurtenant whereupon right RAILROAD v. RAILROADS. [Merrimack that it was seized of the demanded plaintiff says lawfully premises, with the its demesne as of fee within appurtenances twenty thereof; last now to be in past, years ought quiet possession but the said defendant has since entered and holds the unjustly out. plaintiff Also, land, in a further wherein the demands of plea land, the defendant a certain tract of in the first count above all the land described being written, railroad, with the together right described; therein way, where- buildings, appurtenances that within plaintiff complains says twenty years it was seized of the last demanded demesne past premises fee, wit, heretofore, so seized on the 19th being day June, 1884, it executed to the Boston & Lowell delivered Railroad virtue of the laws corporation, corporation existing Massachusetts, of the commonwealth a certain indenture of that date, wherein it leased and demised to said last named corporation railroad, land, right way, buildings, appurtenances aforesaid, with.other land and railroad for a together property, from and after June, term the first ninety-nine years day term; a certain rental itself said reserving during said last named covenanted wherein agreed other the underlet would not among things, plaintiff, assign aforesaid, demised as with'the premises pos- thereof, with the written consent session except plaintiff; further, that in case of a breach of said last named and covenant enter and session of and take full plaintiff agreement, might upon pos- said demised and premises, depots, shops, buildings, tracks, aforesaid, and other demised as permanent property and- Boston & Lowell said Railroad remove and all corporation per- under from said sons and determine claiming premises, thereby aforesaid, as estate whatever .force using nec- granted might And for that further purpose. plaintiff essary the execution says, upon and of said delivery aforesaid the indenture^ delivered to said Boston & Lowell Railroad plaintiff said to hold under and demised premises said pursuance ; indenture, wit, thereafterwards, no on the way November, 1887, the said Boston first & Lowell Railroad day in violation of the covenants and aforesaid corporation, agreements it, and without to be the written performed by consent kept and without which the defendant right (all well plaintiff, said railroad, demised said premises, knew), assigned including and other buildings, way, appurtenances, delivered right possession wards, defendant; of all the same to the thereafter- November, wit, on the at said eighteenth day Concord, entered said demised plaintiff premises, depots, tracks, and other permanent demised as buildings, shops, aforesaid, full thereof and purpose taking possession ; estate as aforesaid that virtue of the granted determining RAILROAD covenants aforesaid contained in the said indent- agreements ure, and the said Boston & Lowell Railroad assignment by corpo- ration to the defendant of said demised and the premises, of all the same to the defendant as delivery possession aforesaid, aforesaid, and the entry by term and estate said indenture determined and became granted by forfeited, became, now, and the and is entitled plaintiff thereupon to the full and but the of all said demised possession peaceable property; declined to defendant yield possession plaintiff, and still claims said estate and the of said demised under said indenture. Wherefore the premises plaintiff prays the determination and forfeiture of judgment establishing said estate, term and for a writ and other process said it the executing relief to which it is judgment, defending rights, giving law entitled. To the the said the sum of damage plaintiff (as says) five hundred thousand dollars and make return of this writ with your therein. doings Doe, Witness: Charles of Novem- Esq., twenty-ninth day

ber, Anno Domini 1887.

Shurtleff,

A. J. Cleric. 19, 1884, Boston, June Concord & Montreal Railroad exe- etc.,

cuted lease of its to the Boston & Lowell Railroad, wherein it is recited that “ Whereas, first said has and said agreed second party grant, has to take and said railroad of party agreed accept, first the terms and conditions hereinafter set forth : party, upon “ Now, therefore, said first in consideration of rent, party, covenants, mentioned, hereinafter to be agreements paid, kept, the second has leased demised, performed party, demise, does lease and unto said hereby second party Concord, of said first from New party, extending Hampshire, state, Groveton Junction in said and the branch railroad from called, so to the of Mount base in Wing said Washington state, as said and railroad branch are located and now constructed, stations, lands, with all the and used together pied or buildings occu- said first or party purposes upon said along route, title, and all the and easement of said first right, in party and to the lands within or the limits without lying location railroad, thereof, of said the use and with full and right authority to said second to hold and said use easements, party rights, and as as said first or could if privileges these fully party might pres- executed, ents had not been of which lands and plan location lease, said demised accompanies premises being subject on the same. mortgages “ To have and to hold to said second for and party during term of from and after the ninety-nine June, 1884, first years day v. unto said first and second paying party the said party yielding mentioned, and all and performing hereinafter keeping

rent hereinafter con- of said second and party covenants agreements ; is intended to but herein contained operate nothing tained manner, the franchises of, or in or rights to.qualify any prejudice its charter .and the laws of the conferred first of said party or or to curtail franchise New any powei's Hampshire, state in such as the exercise thereof manner or prevent said first party, its of the interests of be necessary protection may stockholders.” : contained stipulations following This “ as also in lessee Pemi- first possession party, being Said indenture of lease . . . Railroad under a certain Yalley gewassett make, constitute, the said second hereby appoint party does . . s'aid . railroad. or attorney operate manage agent “ . it . . second covenants party agrees Said hereby . . said leased road. . will operate second further covenants during party agrees, “Said will, its own cost and it expense, the term granted hereby maintain, first as railroad of said party preserve, keep now is. . . . same condition as the repair good “ will, that it the term second further during Said party agrees, . road. . . and leased said railroad operate of this “ that it will not assign second covenants party agrees Said demised, or underlet part possession or premises hereby thereof, ; it of the first with the consent written except party out said the first not suffer railroad of get repair will becoirie party condition, by as ordinary except depreciated general thereof, use renewal aforesaid. to made wear good “ said second further covenanted and party, And agreed contained, herein case of breach its covenants that in any and vested said second estate created case hereby kind, be taken shall from legal proceedings party in case same or mentioned, rent above if the of default in payment thirty thereof shall remain unpaid period and after demand in after due and writing becoming days made payable, therefor, and take full then said first enter may party demised, and all shops, of the premises hereby depots, tracks, and remove said and other property, 'buildings, permanent under from said lessee and persons premises, claiming whatever force determine estate hereby using thereby granted, and said second for that party agrees necessary purpose may not, event, in such said that it will hinder prevent entry said demised to recover the premises first party over the value of estate, and shall account for and its former pay transferred, so less such sums assigned above been to make aforesaid have paid good guaranty cent.” per twenty-five v. RAILROADS. by Rail & Lowell Boston Lease executed of [Copy and the Boston Railroad.] indenture, twenty-second day made This duplicate & Lowell Railroad the Boston and between June, D.A. by of the laws virtue under and existing a corporation corporation, Massachusetts, of the first and part, party of the commonwealth “ lessor,” the Boston & Maine and denominated hereinafter virtue of the laws of Railroad, under and by existing of the laws of the commonwealth, virtue and under and by said states of the second New part, Maine and party Hampshire, “ lessee,”— denominated the hereinafter and itself, Wltnesseth, its successors the said each parties, covenants, each in consideration grants, and and assigns, other, have cove- made granted, herein engagements covenant, and nanted, do agree, agreed, hereby grant, other, its successors and with the fol- assigns, each to and lows, : to wit demise, I. lessor doth and lease unto the grant, lessee, its its railroad and railroad successors assigns, every railroad, lands, therein its docks, and description, including commonwealth, branches, within or without said wharves tracks, side-tracks, road-beds, station-houses, superstructure, depot grounds, viaducts, fixtures, depots, bridges, piers, shops, buildings, engines, cars, furniture, tools, rolling-stock, machinery, telegraph apparatus, material, and and all franchises, equipment, supplies, rights, ease- ments, thereto privileges, appurtenances belonging, together tolls, rent, demand and receive all right revenue, income, and of the demised profits premises; also including title, therein all the and interest of the lessor in and right, to any it, and all railroads under lease otherwise, operated so far as the same are or transferable the lessor assignable without vio- otherwise; lation law or but not and in agreement, and to it, stock other railroads owned all dividends any and its thereon, same; on the and in and right voting bonds, railroads, and contracts of or with other obligations, corporations, individuals, and all income or other and benefits advantages therefrom, be derived a schedule which stock and bonds is here- unto annexed unto the hereby assigning lessee, transferring to all thereon, and incumbrances subject legal obligations all its railroad, tion, franchises, and assets of property, every descrip- as above stated. except To have and to hold all and the demised singular premises lessee, its successors and for and assigns, the term of during from and after the first ninety-nine years A. day D. April, 1887, the said lessee keeping performing covenants herein contained on to be kept performed, and yield- rent for the said ing paying premises amount and in the manner to wit: following, VOL. lxv. v. RAILROAD RAILROADS. lessor, lessee all and 1. The shall pay operating expenses or railroads of which it shall come into which of all possession, instrument, virtue of this under there shall operate being therein, thereof, renewals; all included all repairs business, contract, out of arising any obligation, neg- expenditures misfeasance, or or however otherwise and whether arising, ligence, exists, for the same now or be hereafter created the liability with the use and of the demised connected any way lessor, or of railroads the lessee or as herein operated by premises, insurance, to or including damages persons property, provided, all taxes federal, state, and of every description, municipal, upon franchises, stock; business, or all conse- capital expenses property, quent indebtedness, or incidental to renewal or of the lessor’s upon refunding leased, it; owned, or operated by hereinafter to be declared expenditures operating expenses; any and lessor, which, addition expenses organization to office accommodations be furnished lessee at sufficient to Boston, station of the lessor in or at such station the present lessor, there erected in its to the at shall place, shall the end paid each three the term this successive months during hundred lease, the sum of seventeen dollars fifty ($1,750). due, as the The lessee shall same become rentals 2. pay, it shall come into which railroads possession, all instrument, virtue under and of this operate during shall continuance lease, and of this all roads leased this lessor leases, terms of the several and the interest on according the lessor and on the roads indebtedness all indebtedness the lessor which this lessor under obli- operated by leased annexed, a schedule whereof is hereto and upon pay, gation as shall indebtedness be created future such purposes and to that shall to the lessor sums such pay. herein .end provided, shall at times as enable it to meet the punctually of money as the The shall on such indebtedness same matures. lessee interest the current and indebtedness and pay expenses open assume lease, at of the lessor the date of and the the outstanding account for and reimbursed to the be accounted lessee at shall same The lessor of this lease. shall turn over the lessee termination bills, notes, hand, and accounts receiv- outstanding all cash thereon; sums received and all such cash on hand able, interest, over the lessor without be accounted paid shall of this lease. termination at lessor, on the first lessee shall day pay one hundred July, the sum of thousand five ninety-three D.A. dollars three and one ($193,529), hundred twenty-nine being stock; its now cent.) upon capital cent. per existing half (34 per the -same sum first on the suc- days lessor every shall pay until and first of Jan- January July including day ceeding thereafter, on the first sue- shall D. 1897 days A. every uary, lease, the term of this ceeding July January, during pay the lessor the sum of two hundred and thousand one twenty-one hundred and dollars four cent. seventy-six ($221,176), being per stock; on its now and for (4 per cent.) existing capital any por- tion of half the rent for which remains at year, unpaid earlier termination of this shall expiration lessor pay rata, rent at the rate in termination; force the time of such pro also, that from and after increase of the lessor’s provided, any cap- stock, ital made as as herein the semi-annual to be provided, payments, above, shall be increased so that each shall be of payment an amount to three and one half cent. equal per (3i per cent.), 1, before A. D. and to four cent. July per (4 per cent.) after A. D. all the lessor’s July stock upon

.and capital issued and at the time of such outstanding payment. II. that, The lessor covenants if it be found to at impracticable once deliver immediate railroad leased or possession any lease, it at the of this reason of operated by inception any reason, to the or other use agreement will all reason- contrary, deliver, able deliver, efforts to and will thereof as soon shall, meanwhile, as The lessor continue in the practicable. pos- railroad, session of and, such under the direction of the lessee in all shall continue to use and the same under respects, its con- operate tract with other same, and owning rental or company pay same, consideration to be for the use of the and paid agreed thereof; to receive the but shall transfer earnings immediately use, and over all such to the which, lessee to its own pay earnings thereof, in consideration shall reimburse the lessor for all expendi- tures, and costs, and hold it claims, harmless all indemnify against and liabilities out lessor’s and arising operation railroad, of said or under and virtue of its or other con- tract the same. operating III. The lessee shall assume all traffic balances due from the ; lessor to other railroads or shall transportation companies assume all contracts of the lessor for and material, equipment, supplies, and all other contracts and liabilities of the lessor to and with individuals or or corporations, expressed implied (its contracts with the holders of its as indebtedness scheduled and excepted) shall assume and defend all suits or in of the demised the lessor against out of arising connected with the or future use and any way past and,roads, or roads hereafter premises received or lessor, the lessee or the as herein operated by and provided, pay all obtained thereon. judgments IV. The lessee shall the interest pay upon portion any lessor, indebtedness of the shall be or leased or lines, operated lease, renewed or extended the term of this during in like manner as the same indebtedness before renewal or exten- ; and, sion in case the lessee shall take or up purchase, otherwise, enforce foreclosure indebtedness of v. not be renewed lines shall so leased operated said title, extended, taken and all the securities so up purchased, thereof,

benefit, of the enforcement shall enure or advantage this at the termination of lease upon lessor reimbursing the the lessee incurred in so sums expenses taking up, paid same. enforcing purchasing, construct, authorized to the lessor shall complete, If duly Massachusetts Com- main line of the Central Railroad equip pany, or extension thereof between Palmer construct branch said in the lease of Central Massachu- and Holyoke, provided lessor, and to issue its bonds to Railroad Company setts construction, cost of such equipment, meet completion, shall, lessee, construct, under direction complete, lessor line, construct, said main complete, equip and equip branch, said and issue its bonds said provided by branch, thereof. as fast as cost Said road meet shall lessee it is pass completed equipped, indenture, if shall the Central Massachusetts Railroad Company lease, or, in of its default of con- consent sent, assignment same same shall be and until the be the given, operated by as the same terms and conditions above lessor upon provided the indenture, to II this as the other of railroads whereof in article unable deliver immediate and the lessor possession; the to the same duties and liabilities in relation shall be subject lessee lessor, as relation other roads leased and shall thereto bonds, or said cause to be the interest upon perform, per- pay lease to formed, the contained said be performed by agreements the lessor shall be authorized to the If duly buy this lessor. prop- of franchises the River the Ocean Mystic corporation, erty Terminal Terminal Railroad the Ocean Railroad Company, the lessor shall issue its bonds or and Elevator Company, Dock such an amount sufficient'to and fran- pay properties stock chises, on for such the real estate said com- of improvements the lessor the and the of river as lessee Mystic panies fit the same for the efficient deem necessary proper may transaction of business. lessor issue shall and convenient the of bonds without float- or funding existing stock delay wit, indebtedness, to its indebtedness notes represented by ing included, and, or earlier determination of expiration this to, of, lease, and enure to the shall benefit reassigned lessor. shall make and lessor also execute such other leases The or oper- contracts other railroad as the lessee companies ating may however, contract, lease or such if the lessor shall every request, elect, at or before the so terms expire by expiration of the lease created these and all term by presents, obligations therefrom to be assumed liabilities and sustained ex- arising lessee, and the shall be lessor held harmless from clusively by therefrom. The lessee loss lease or agrees arising any any contract hereafter made with railroad or any operating mentioned in or 459 of the Acts coi’poration chapter company of Massachusetts for the the Commonwealth rvith year Lawrence, & Manchester or with the Addison, exception Lamoille, Vermont, & Consolidated Vermont, Central Burlington RAILROAD RAILROADS. [Merrimack St. & Lake Johnsbury Extension, Lamoille Champlain, Man- Valley Keene, Nashua, chester & Boston, Acton Cheshire, & Missisquoi, River, & Wells River, & Montpelier White Montpelier South- Eastern, Mt. New London Northern, & Washington, Newport Richford, & & Peterborough Profile Hillsborough, Peterborough, Whitehall, Notch, Franconia & Southern Ver- Brattleborough mont, Jefferson, Vermont Whitefield & Valley, Val- Massawippi Woodstock, Railroad, or Central or ley, [Massachusetts any

them, or with branch or extension of railroads, such any shall any lessor, executed with be made or and not with the lessee or behalf, in its corporation acting lease or con- any person tract, at the or earlier lease, determination of expiration enure to the benefit of the lessor. shall have the VI. The lessee on all stock right owned voting the lessor in other railroads or as herein- by after corporations, except said stock shall not be sold or otherwise dis- provided, lessee, nor the lessor with the posed by assent of except the lessee. shares of stock of the lessor in the St. & Lake Johnsbury Railroad shall be voted the lessee so as Champlain Company the interests of the lessor’s promote tem of sys- roads, and so as to the road of that in as keep company in, and, condition and as the same are now repair on all good questions operation of its of increase of capital, transferring contract, of its road lease or or of the sale operating or of any consolidation with company, be voted other of the lessor manifested shall the lessee with the company, assent only vote of its directors. That the inter- of the St. est Lake Railroad Conr- charges Johnsbury Champlain reduced to the lowest practicable lessee’s- pany point, extend, be used at its renew, discretion to voting power may thereof; refund said indebtedness any part foreclose any to make new mortgage company’s existing property; thereof; said and to do all mortgage other acts and reorganize company; necessary things reduction of its proper and consistent with the fixed the lessor’s interest charges, preservation, unimpaired, in said as herein : demised company provided, however, that the lessee to the lessor the hereby guarantees preser- vation, of its interest in and control of said St. Johns- unimpaired, & Lake Railroad demised, as herein Champlain bnry Company and, at the or earlier termination of this will expiration debt, 'stock, the lessor either return to and bonds hereby debt, stock, or other and bonds demised, the same interest giving in, of, the same control the St. & Lake- conferring Johnsbury Railroad as the securities herein demised. Champlain Company The lessee shall have the VII. make suck in right changes stations, tracks, and terminal in Boston and passenger grounds elsewhere, stations, and to establish such union and to such make v. RAILROADS. the and accommo- of railroad safety grade-crossings separations dation of coiivenient and economical trans- the and the public : in its how- of business judgment, require provided, action may, earlier termination of this lease the ever, or that at expiration tracks, shall be stations, terminal returned to and grounds lessor’s it in in, as the same are now and so that order and repair as good fitted be use and shall well independent same equally its own road or its leased roads lessor. by operation shall make additions to lessee have right permanent which the demised shall include and premises, improvements structures, in track and increase mileage, buildings, bridges any additional lease, at the of this those and inception existing structures, those and at the bridges replacing existing buildings, inception lease, so far as cost of new this buildings, structures, exceeds cost such old and bridges restoring structures, to as a condition as when bridges good buildings, shall, additions new. improvements Such permanent or decided the railroad lessor commissioners by assented for the lessor so far as it paid to be proper, necessary to do so manner or can has procure power provided ; otherwise shall be of this lease the lessor Article IV paid lease, this or earlier termination of in the man- at the expiration ner provided. hereinafter shall, at its own said lessee maintain and VIII. The expense, keep and all the and fixtures of the demised premises, property every or under this lease, shall receive operate in as description good the same now are or and condition as shall be order when lessee, there so that shall no depreciation received by ; and, thereof or expiration earlier any part same return the same to of this shall the lessor in the termination condition, and shall the lessor order and put same posses- good at said time its leased roads and sion of all property operated by this said lessor under indenture. The lessee said lessee use shall herein demised, railroads properties and operate of the lessor and of the with charter several accordance corpo- roads are so laws rations whose operated, common- and of the of New Massachusetts states wealth of Hampshire States, so of the United far as the same are Vermont respec- cars, furnish all shall engines, tively rolling-stock, applicable; in addition every required, like description equipment demised, the due the railroads hereby under and property virtue of this shall observe and operated per- the lessor of contracts of form railroads provisions it, or which be leased now leased operated by operated indenture; shall it, under provisions keep insured, shall demised apply premises reasonably proceeds insurance restoring replacing destroyed, not in the nature or to of ordi- improvements, making permanent RAILROAD v. RAILROADS. the demised shall nary repairs, of the upon premises; apply proceeds and other rolling-stock, equipment, personal property demised, sell, herein is which it deem advisable to which it may discretion, authorized sell at its so as to substitute hereby value; therefor like shall equal property replace buildings removed,

structures on the demised taken down or premises which the lessee is authorized to take down or remove at hereby discretion, with other structures, or buildings, permanent value, the demised improvements upon premises, equal for the use convenient of the lessor should this lease be equally ; terminated with free annual shall furnish the directors and treasurer of the lessor over all the railroads passes operated by lessee; or for the shall the demised to be permit premises the lessor’s directors and inspected tent by some annually by compe- lessor, who shall to the lessor person appointed by report shall, the condition of said of such premises, purpose be furnished with free inspection, over the railroads transportation lease, under this by lessee and shall receive a reason- operated able services, for his to be compensation paid lessor’s shall make all returns operating expenses required by law, and furnish the shall lessor with such abstracts of accounts as lessor; shall enable it to make all returns shall required not this lease nor underlet the thereof, assign premises, any part thereof as in the of the lessee except portions judgment may uses, not be lessor first had and for railroad without the required written assent of the obtained; and shall cause all rolling-stock demised, substituted for that hereby demised and added herein rolling-stock thereto, to be distinguished by appropriate letters; names, numbers, or and at the end of the term of this lease, or at earlier termination thereof from any cause what- any ever, shall surrender the real and estate now or personal hereafter demised, aforesaid, to be ascertained and determined according for, to the and condition in which hereinafter in the like provided order inventory good are at the of this lease or inception lessee, or term, when received all be may put during thereto, thereon or additions the amount of improvements materials, and to be surrendered or accounted for money, to the lessor to the supplies value to the amount on equivalent hand at of this as shown said and all inception inventory, bonds, securities, stocks, bonds or securities substituted indenture, therefor under this to be returned provisions or other earlier termination of this : lease expiration provided, that at the or earlier termination of this lease the lessor expiration shall to the lessee the value of pay permanent improvements lessor, and additions be the said value to already paid determined, unless the board of agreed parties, for in the twelfth arbitrators article of this lease. provided herein IX. That demised and to be accounted RAILROAD RAILROADS. earlier termination of this at the accu- expiration made, determined, there shah be as of the when day rately lease effect, full, takes complete, particular inventory, of all estate and real and appraisal property, per- description, sonal, into lessor and belonging coming possession ; this, time, of this lease to from time to lessee virtue and the by other added such estate and as shall into shall be come the lessee under terms of this lease. of Such the possession and and additions thereto description, appraisal, inventory, from selected refer the matter time, shall be made time two competent persons by —one ; in of each case their shall party disagreement, some in difference to third whose decision person, and be final. shall shall Such inventory, description, appraisal ; and an furnished each and in made duplicate, original party nature, value, of the of and condition be evidence shall prop- lease, of or time this at the demised at inception erty nature, in in all cases which thereto question additions condition, any arise. or value may and shall maintain its existence as a The lessor X. organization with to that end shall all the and comply requisites corporation, and law; all acts shall do and and execute all forms things, and and instruments secure lessee proper put necessary legal franchises, of all and in full lights, property, enjoyment demised, into effect the true herein and intent interests carry lease; shall stock, this and not increase its capital and meaning issued, lessee, without the assent as and now except existing To further secure lease. the lessee in the as this provided franchises, of the and property, beneficial enjoyment rights, privi- the lessor constitutes the herein demised lessee specified, leges its irrevocable, full with at the lessee’s power, attorney right name the lessor in all legal use proceedings, expense, in cases needful obtaining, holding, enjoying prem- and for all demised consistent ises herein specified, purposes true and intent of this instrument. scope if the condition that the lessee This lease shall upon XI. lessor, reserved, as fail to make rent herein time any to be made to it herein to enable stipulated pay payments indebtedness, or shall fail for the interest thirty days as for in semi-annual clause 3 of stipulated make any payment, hereof, then and in such case the lessor at once Article thereof, the demised premises, any part enter upon upon lessee, whole, and and determine the estate expel hereby become seized and and shall thereupon possessed granted, demised then in and of all premises premises, indenture, under this or the lessor thereof lessee every part made; had never and as if been in its original right, condition, the lessee shall fail to the further perform contained, this lease of the covenants and other agreements any RAILROAD v. RAILROADS. continue and such failure shall for six after written months notice lessor, of such failure from the directors of the the lessor shall lessee, the like to enter and revest have right expel itself its former estate demised and all premises, premises indenture, then in lessee or the under this lessor however, thereof: that such every part provided, entry by lessor for of condition shall in wise breach no or prejudice impair remedies to which otherwise be entitled for arrears might covenants, of rent or breach of preceding rights secured this lease case of its termination before the expira- tion of the time thereof. XII. In case of between the hereto any disagreement parties thereof, to the true intent and of this meaning any part it, or as to done under and virtue of out anything growing it, the matter in shall be referred written submis- controversy sion to the arbitration referees to be chosen in the manner One be chosen shall each hereto following: if either shall fail or a referee when unreasonably neglect appoint other, the board of railroad commissioners requested by may, after or due notice to so party failing neglecting, appoint referee. The shall be selected third two so chosen. The arbitrators them, shall hear after due notice to each of parties, notice, and if either fails to attend after such ex party may proceed arbitrators, in The award of said of parte. writing majority them, to the shall notified be final and being conclu- duly parties, sive them. upon whereof, In the said their testimony parties, by respective presi- treasurers, authorized, dents thereunto have caused their duly affixed, to be hereto these seals corporate presents executed the first above written. day year Rollins, Boston, November E. H. Mr. of president Railroad, Concord & Montreal entered the track of rail- said upon Concord, H., road at N. and made the following proclamation: “ Boston, in behalf of Concord & Mon- By authoi’ity, Railroad, I treal said enter take upon railroad Concord, from New from corporation, extending Hampshire, Junction, and the Groveton branch railroad Road, so Wing called, Mt. lands, to the base of with all the Washington, together stations, used or said and buildings occupied by corporation route, title, said and all the purposes along right, easement said lands corporation within lying railroad, and without the lines the location of said and all depots, tracks, easements, and all shops, buildings, property, rights, or. franchises to be leased said attempted corporation Boston & Lowell Railroad lease dated pretended June “ This is made because of the breach covenant entry v. cor- & Lowell Railroad Boston lease whereby said pretended it would not underlet prem- assign covenanted poration therein, lease, with the said ises demised by Boston, Montreal Concord & written consent without Railroad. the covenants said pretended is made “It pursuance estate, any, granted and for determining purpose ' thereby.” Stowell, Railroad, & Boston Lowell tljp A. W. superintendent said,— Division, who was Mountains present, White Railroad, White Boston & Lowell superintendent “As of its Division, to surrender the road or I decline Mountains use shall off the order you premises, hereby property, unless depart force necessary expel you you peace.” Railroad executed then attorney Boston & Lowell E. EL same and delivered the to said agreement, following : Rollins Railroad, Boston, & that the Con- Boston Lowell “The denying has Montreal Railroad cord & any right entry upon premises Boston, & Concord Montreal Railroad to the Boston

leased by Railroad, been or that said lease has condition of Boston, has broken, that said Concord & Montreal Railroad agrees said for breach leased made an entry day upon premises, condition, sufficient in of form. point EL, Concord, 18, 1887. N. Nov. Railroad, & Lowell Boston EL Burns.” Charles

By attorney, Railroad, EL Boston & Maine its The Charles attorney, Burns, then and said Rollins there the gave following agreement: Railroad, “The Boston & Maine it has any pos- denying of the to in the session leased referred agree- premises foregoing ment, assents said and will be bound the same agreement, suit the Boston & Maine Railroad. against any Concord, EL, N. Nov. Railroad, The Boston & Maine its Charles Burns.” H.

By attorney, M. the defendants. Massachusetts), discussion Olney (of Any whether the Bos- lease to provision question has ton & Lowell been violated assumes as matter of course orig- assumed, of that lease. That inal ell, & Low- Boston validity being it with June, when made its contract Boston Maine in 1887, franchises, in this It owned and position. its own possessed peculiar with all the real and inci- together personal property them.- It also held and certain dent and possessed appurtenant conferred and franchises and the originally belonging property had succeeded It to all the plain- corporation. plaintiff lease, still con- its tiff’s franchises. tinued plaintiff, notwithstanding had, others, as a and in existence corporation, among rental, its and to the same to receive dispose power right the claims creditors the interests of stock- accordingly (cid:127) short, In after its lease to holders the Lowell require. 1884, plaintiff, might all the retained incident rights powers to its interest in the demised reversionary appurtenant hand, contract, Lowell, after the other On premises. lessee, with was invested essential to every right power and maintenance road. For the due operation conditions, to its the Lowell of the lease held the term subject franchises essential the be all of the plaintiff’s own, used, as it held its road exactly enjoyed, —to n exercisedexactly as if instead had been the origi- them. nal grantee be noticed in this connection is the Another thing peculiar n characterof the originally property belonging plaintiff, with the Lowell contract of 1884 vested in the latter cor- its the latter and the still further corporation poration, June, contract of with in their 1887. The essential dealt subject contracts was not of these several land nor interests in matter was not It personal lauds. tangible property any description. the state creates When corporation accomplishment when endows that certain public objects, corporation holding property conditionally upon faculty application to those the franchise that state objects, public granted property hand, other, on the one on the accepted by corporation in itself of value that the cor- comprises everything represents estate; real has. acquire poration may acquire personal sort. But is valuable as it can be property only property used, holder is as the to use it for competent only pur- it is The franchise of a to which adapted. poses corpora- tion, therefore, its estate—is constitutes principal thing the lands and chattels which all exercise are necessary are incidents. incidents: They inseparable inseparable simply to the exercise of the real and a rail- property necessary personal from it franchise because the inseparable franchise, is bound to exercise bound acquire property exercise, is bound for its to serve the franchise with that requisite property, bound, therefore, not and is to alienate it. The law franchise and essential to welds the its use indisso- the the franchise for exe- the corporation holding together, lubly cution trust, and the of a as the holding public indispen- property means of such execution. sable of the contract of The 1884 between tbe subject-matter plaintiff the Lowell, demised the therefore —the premises plain- —was franchise, after it all the which drew essen- railroad tiff’s So, the now use whether to its and enjoyment. inquiry being tial the Boston aliened or itself & Lowell has way dispossessed any is is to what wanted ascertain cor- of demised what premises, is has railroad franchise. exercising poration law, that franchise remains in the If, matter of to-day posses- Lowell, then there has been no Boston & breach of the- of the sion covenant alienation of the demised against if Lowell has It been broken in some has premises. divested only way itself of franchise. that a in order like- quasi is public corporation What necessary franchises, of its essential divest itself a railroad may rights —of to it to exercised in the of certain promotion given powers what is nature of the which process by public objects,-—and in a become vested those person powers may corpo- rights ? That a other than ration original grantee semi-public corpo- ration, railroad, franchises, like a with essential the one may part state, of the is the state. The permission thing indispensable franchises, is the state authorize competent conferring only such authorization are surrender. Without their incommunicable. instance, wholly follows, that when a railroad corporation, franchises, or lease its essential sell it does- purports transmit or event. If it not in strictness anything grant state, its of the act without consent futile proceeds and ineffectual. wholly state, with the of the If it consent it is- proceeds state, alone, and that which the act force the consent gives words, consent state is the true- and virtue. In Hence, or lessee’s title. such source of purchaser’s every instead of itself or lessor case or corporation, transmitting selling exercises a power appointment conveying merely anything', or lessee franchises which gets purchasing if a them state, new were from the and as at that grant directly moment made. then, the court on before The exact question, is, this claim of the Has plaintiff record exercised respects an appointment authorized power franchise, substituted for itself appointee railroad in the use and thereby franchise? The of that appointee, enjoyment the Boston Maine Railroad. of course any, claims, substance, Boston & appointment June,, and Maine contract been made force the Lowell has that on no admissible construction that con- I submit In the first it is maintained. can that claim be place, directly tract in contract. As I have the teeth of just language franchise, the act observed, grantee it, becomes invested does not another or corporation person but exercises-a itself transmit or anything, simply power grant RAILROAD v. RAILROADS. cases, however, the invariable in such appointment. By usage instrument formal treats the appointment property, power incontestable, and, the intent on familiar being operates princi- instance, Lowell execution For ples good power. June, and Maine contract of but the exercise though nothing of a so far as the Lowell’s own franchises power appointment concerned, com- are demise and let them as in the purports just mon case of an lease of real or How is personal ordinary .estate. that it under contract with the franchises—which plaintiff’s ? nor Lowell held in addition to its own are not They appointed demised nor let of that in the contract that is susceptible by any language franchises, On the plaintiff’s interpretation. contrary, with those of all other roads which the without breach of Lowell could not part contract, are from the excepted things expressly further, Lowell does Still after purport being convey. out of the fran- taken category things conveyed, chises, situated, with those of all other roads then are similarly contract, with in dealt clause of special separately it is them, that declared Lowell shall retain explicitly not divest itself of them until can shall some future when it time Thus, do so. of the contract legitimately express language claim of that opposed absolutely plaintiff thereby Lowell made any appointment conveyance franchise. In the second the manifest intent of the place, antago- parties n nizes the claim in an realized equal degree. They June, 1887, as as we do situa- fully clearly to-day, precise tion. knew that Lowell held various railroad franchises They which it could not with without the consent of their part original owners. knew that consent not asked had even been They for, much less knew that sub- They given. any assignment, sort, or alienation of of those cause franchises would any letting, serious trouble and mischief for all concerned. With parties the exact meant to the contract knowledge, thing parties avoid, ation of avoid, must have meant or alien- any assignment, sort, of railroad franchises which the derived any from other and could not their with without corporations The consent. not so in the contract parties only say express terms, but their interests and all the circumstances surrounding show that could not had have different As they purpose.' then, this claim that the Lowell and Maine contract respects, June, 1887, amounts to an alienation assignment plain- franchise, established, first, tiff’s railroad two are things — of the contract is express language diametrically opposed second, claim, that the manifest intent of the parties it. The contention can there- equally opposed fore, prevail, builded, in one if the have only contingency, only — better, worse, knew, not but than cer- perhaps perhaps what as have done as matter of law matter differently, tainly undone. meant to leave fact they is, notwithstanding proposition 1887, June, Lowell and Maine contract terms of the express road, and to the its undeniable intent plaintiff’s notwithstanding application it, that contract does amount to parties the Maine of the railroad or alienation to an plaintiff’s assignment is assumes that the contract and can be franchise. or transfer of an else than subletting, pos- assignment, nothing franchise, an railroad alienation session of it of some plaintiff’s —than sort; Maine cannot and that the Lowell and the enter road as the contract into such relations respecting plaintiff’s railroad an alienation of the franchise calls for without plaintiff’s of the covenants of the lease. within the plaintiff’s prohibition The statute is an entire mistake. law I submit position 100, Laws of New section enacts chapter Hampshire, contract that either that “Two or more railroad may corporations shall the transportation persons perform corporation Thus, the road of the other.” the statutes and over freight upon authorize one railroad of New corporation Hampshire expressly servant work as the latter’s do all another’s transportation the latter of its essential franchises and without dispossessing agent, June, 1887, this Lowell and Maine contract And property. railroad, foot, submit, I to the sets in its plaintiff’s application sort, and neither effect an precisely legal arrangement execution constitutes alienation demised nor any practical lease. within plaintiff’s prohibition premises the several statutes of Let us consider New ways New railroad authorize a corporation Hampshire Hampshire franchise, which, as I have its railroad deal with already argued, its essential railroad In is attached all property. inseparably it of its franchise and itself of first may dispose discharge place, a union or consolidation thereunder forever with all another railroad duty it In the second place, may dispose company. itself of thereunder for a term any its franchise discharge duty the lessee the owner franchise becoming years by third retain and itself vice. In the Jiae exercise place, may pro of natural franchise In persons. the the fourth instrumentality through retain and itself exercise franchise place, may railroad of another instrumentality corporation .con- through tracted distinct statute of New with for that A purpose. Hamp- with that one railroad contract another for shire also provides may statute, it, I But that take the use of the latter’s road. imma- because, connection, as I in this understand construction terial court, the effect simply permit joint put each with own motive use two railroad corporations, power to one of them. This cars, of a railroad construc- belonging one, to be a because a contract tion would seem one necessary RAILROAD RAILROADS. for the with another exclusive use railroad of another’s corporation but a could not be lease. These road the several anything being New railroad in which a Hampshire deal ways its essential railroad franchises and the railroad property them, to which of them did the appurtenant inseparably June, in this Lowell and Maine contract of resort as it not, road? There of course, relates of roads. There consolidation was not attempt to any attempt use of one railroad joint provide respective of two and cars But companies. conti’act made a engines , contract, sort. Before the of some the Lowell had worked change the manner, and the ordinary Maine had no to the road or its relations sort. After working the con- tract, the Maine had such relations of just some sort. certainly their nature ? What was or alienee under the have been those of They might assignee lease of the fran- thereto, incident chises and tiff claims which is what property the plain- hand, were are. On the other they might those of a contractor to all the simply perform of transportation and over the And, upon road. persons plaintiff’s as and the true the most reasonable construction of the Lowell and June, 1887, of Maine contract its to the application plaintiff’s submit, road, I that under it the Lowell no passed estate whatever franchise, road or either plaintiff’s or permanently tempora- but constituted an rily, simply agency Maine under- whereby road, or, of the took the working plaintiff’s use the of language statute more contracted for all the nearly, of transportation and over the upon road. persons freight plaintiff’s The differ- ence between the two theories is for present vital. On purposes the of of the nature and plaintiff’s theory as the contract operation June, road, regards there was of plaintiff’s course of the an alienation the demised a premises, change possession railroad franchise plaintiff’s it became vested in whereby alienee, either as Maine other or tenant assignee, of some sort. theOn hand, on the defendants’ of the nature and theory that as contract applied road, plaintiff’s the demised wit, railroad premises, nant plaintiff’s franchise with its appurte- did not hands at all. It property, change remained in the Lowell, undisturbed relation assumed only —the to-the road the Boston & that of con- being to work the tractor road in the name of the Lowell and franchise, under its and as its servant and If that be the agent. true construction of the Lowell and June, Í887,— Maine contract of I,shall consider not, whether it be or presently the prac- —then tical execution the contract is, by Maine, parties, working is not an alienation of the demised within the premises prohibition lease. A must act' corporation But through agents. necessity operate its it does not of tbe being legal deprive on its carries franchises A ordinarily property. corporation But its business of natural persons. through instrumentality if it can find artificial persons legally practi- corporations work, for no should not tbe there is reason cally qualified why nor, them, does, if it should operate why emplo3rment employ its divest A railroad estate. company usually corporate railroad, run chartered to build as as to a well very commonly its its road under exercises contract franchise build out whole by putting man. The is of one practice unquestionable validity, and never -been and cannot be considered as any has considered a of one of its abandonment alienation railroad company most It would no more be such abandon- franchises. important or alienation, course, ment if railroad contract company’s individual, one of its instead with were building being But construction instance. corporation company, —a a railroad franchise exercise building through company contract with one individual without abandonment or single alienation of the any franchise, execute same ground may franchise in the same manner and also without operating abandonment alienation of franchise. Without pausing however—railroad are point, companies operating just and if conceivable railroad construction companies, by general laws the state of New were to charter com- special Hampshire for the solo railroads for their owners, panies it purpose working would disputed avail might itself of such an on its business instrumentality, carry through it without itself from its railroad thereby franchise evicting be well also observe in this property. it connection may that immaterial, is so far as the now under point considera- entirely tion concerned, is a that railroad contracts with its company’s are of If for short time. that were employes so, usually periods not them, its of all contracts with one from man- every general —if time, were or ager railroad crossing-tender, thirty years’ twenty —the and title in its company’s right fran- possessory plant would unaffected, chise be and would the same as wholly they is, then, It are. as I think it that ordinarily road being plain, a rail- other, like act must corporation, every through it agents; as such either natural may employ persons agents corporations such; as act that it do its business qualified legally may through one contract with a contracts with general agent through many that its contract contracts with many special agents; either class duration, of be of or of short at discretion,— agents long may are, these as I it is think things being plain, equally plain that in all such cases and in such case the railroad every company’s intact, of its legal road and franchise remains the indis- rule that, of law putable whatever applying, may rights sese, world, inter all the principal agent against YOL. lxv. RAILROAD RAILROADS. is and for all always principal’s purposes

agent’s possession. I in New It has been Hampshire, suppose, adjudicated out work is for a railroad put operating it under competent Neither, I the laws of contract to one man. have suppose, laws, enactments or authorized New Hampshire, general special rail- for the sole formation of purpose companies working in the rail- owners. But roads for their very early history two state it was enacted that railroad com- road legislation should do all the other’s work. A contract that one might panies effect was force from 1842 continuously statute a was either omitted from it inadvertently when purposely laws that time made. revision or public compilation however, act, in 1883 in the so called. Colby reappears provision, of that the first section 17 act. It forms immediately of the railroad and is leasing power, obviously grant precedes a of a different character. power conferring wholly regarded' Indeed, been so treated in the of New it has legislation always to contract two railroad power corporations Hampshire, —the do the other’s entire service transportation being that one may enactments, side distinct granted by separately existing the whole of powers the whole or as distinct side powers, during nearly In the act from 1842 to of 1883 the difference the period marked, is even more since the >two powers between emphatically stockholders, while a of lease contract requires approval a road to work another be made directors one contract by so difference is between the two powers What only. distinct mistaken. legal manifest, and cannot be contemplation legislative termini, vi ex A possession, change implies —a a owner to a As from tenant. applied general possession transaction railroads, it means the lessor’s essential between lessee, becomes vested to be used and exer- franchise the fran- as if were exactly cised chise. original grantee character, a Because lease between railroads transfer of essential railroad fran- it involves lessor’s because ‘ Indeed, if of stockholders is I chise, necessary. approval court, doctrine of this a lease railroads between understand involves so vital a the lessor’s change less than the assent of all the stockholders can incorpora- purposes tion that nothing this is the effect of a contract While naturé and validity. give lease, a contract between railroads which one is work of another con- is of a different character. Such wholly working not inconsistent with the com- tract is purposes employing charter, and involves no breach of the original compact pany’s It selects one out of various between stockholders. simply legiti- and such means for such charter mate objects accomplishing It does not as a transfer com- operate employing compact. franchise, but an' essential secures through simply agent pany’s to be The virtue of the whom the franchise is executed. enabling does not consist in its one railroad to statute do authorizing company its work an It cannot do work agent. through any is What the statute does another railroad way. ration as such tent qualify corpo- course, corporation is, A railroad agent. compe- road. But to enable it to work the to work its own road of as the latter’s another corporation agent requires express statutory however, If, authorization. is authority granted, any railroad other, under it is an like and is company employed agent just is to else. runs the road in the nothing say, That employer’s franchise, and under the and its is the right employer’s employer’s possession. then, The defendant’s as the alienation claim position, respects a,nd is, is that true what has plaintiff, inquiry corporation franchise; is railroad that the Lowell plaintiff’s exercising could not exercise it an of some except through agent agents sort, might purpose employ persons corporations as law to act statutes of qualified New agents; one railroad to do another’s Hampshire expressly qualify corporation entire latter; service and that transportation agent June, this Maine and Lowell contract applied road, more is done than make the plaintiff’s nothing the Lowell’s agent performance service transportation franchise, then the plaintiff’s with plaintiff’s thereto, the railroad property appurtenant has inseparably remained and now remains in the Lowell, always with, has not been and there has been no parted breach alienation covenant of the lease. It remains consider the true character and construction of this June, 1887, Maine contract of application road. The it as plaintiff interprets an constituting alienation essential assignment chise with the railroad fran- annexed it. That inter- property inseparably is one I which submit cannot pretation be maintained. possibly The manifest intent of the to it. We direetty opposed so, so, it is know and must be both because so in they say itself, terms the contract and because their express mutual knew, interests, as well would be they obviously greatly prejudiced alienation of the franchise any assignment did not have the consent But plaintiff’s previous writing. from the intent does not ai’gument what parties’ stop showing did not want and what meant to avoid. When their they they considered, submit, I entire environment it is what plain, they did want and what meant The statute accomplish. ena- its, one railroad to hire to do another bling work was (cid:127) founded on economical considerations. obviously largely plant corre- thought a,large corporation, capital wholesale dealer in do spond the work transportation —a —could v. retail with small a small capital equipment of dealer, —a to the mutual benefit that is—at a of expense, great saving Now, of at the and to the the the public. of advantage made, June, 1887, of this Lowell and Maine contract time contract, that the Lowell was the of up greater force giving business, but could its railroad give up part road tiff’s lease. of this covenant alienation plain- on account against an to run the road obliged temporarily, Being rail- it to work done another statute get authorizing express it avail itself of as would agent, naturally

road corporation run the statute, to such because it could and resort agency thereby interest, in its the best most own advantage, inexpensively road interest. most efficiently regards public the terms the Lowell and to the examination of come We June, 1887, definite contract very knowledge Maine the We know what did not want and intentions. they parties’ know what did want and we why. provisions why, to and out the intentions conform parties’ the contract cany declared, in the first place, explained. thus ascertained under the road shall be in all respects that operated the Maine of the Boston Maine. That makes direction work road—the instrumentality operating power agent there I need not dwell that upon point; peradventure. beyond is no excuse because, it, it incredible as upon dwelling my seem, on the side and is matter friends other upon my when a are substantially agreed; unique proposition myself that discovered, some miracle I take it that the court sort is settled, and to hear too it as be only glad regard will finally it. In the next about the contract the road more place, compen- nothing for its services in working by giving sates agent business, that being provision agent profit —the of the road condition of have all gross receipts shall upon of it. It will all its liabilities on account principal’s discharging the contract makes the Maine said proposition be to work the with the the Lowell road inconsistent the agent the Lowell shall remain in and itself language, —that But, road. in the third is to place, language operate with the connection taken language, —that under the direction of the in all operated shall road construed, so is conclusive point respects; the Lowell not undertake or in did alienate assign way franchise, but constituted the essential simply statute, Maine, therefor qualified agent being expressly course, view, under contract. In that the Lowell work road, does continue continue operation does road both to the state and be responsible and is the known either customers only party to.all is, with such The business of the road operation. connection RAILROAD v. RAILROADS. name, be, under on in its in its as it to carried right, ought makes in its And the which contract franchises. the only change the is in the the conduct of business to one lawful put place agent another, to of natural is substitute instrumentality that of another railroad corporation. persons no will that on the there is sub- It be said am theory urging results contract stantial difference in between a working practical lease, two and a contract of and that between railroad companies if it were the Maine is in the same as position to-day substantially alienee of sublessee, or some the sort under assignee, But so lease. that is not at all. In the first if a lease is place, authorized, lessee not in or the does become sense way It lessor’s enters into direct relations with the state and agent. road. The lessor’s essential railroad parties using it, franchise becomes in be if it vested to used were enjoyed of the franchise. true The same is original grantee thing lease, an or sublessee under a valid or assignee assignment be authorized. On the status is subletting contrary, exactly reverse, if all to railroad does is hire corporation do its another to work. In that no case franchise is anew, divested or vested but the employing company’s franchise in remains and it is alone for possession, responsible its exercise. For Under Lowell and Maine contract example: June, 1887, be, I construed as think it must and not Lowell the Maine is alike to state and to responsible private parties interested both for the manner in road and for the working it is worked. It is true a rail- Again: road the road of another as has all the company working agent road, same a lessee of the rights, as an powers, privileges or sublessee under a A valid lease. con- assignee genuine working tract —a work contract one road to another —does not give it, to extend the to build agent branches to to power roads, hire or other to land other operate acquire for property it, or to use the of eminent domain for principal’s power any pur- June, 1887, Under this Lowell and Maine contract of pose. for instance, does the Maine to have power get any extended, it, have branches built to hire or other operate it, it, roads in connection with acquire property put motion the of eminent domain It ? is clear plaintiff’s power not. does All it is the run the road as gets right agent, contract; run the road as at the time of the all the other existing and franchises to the powers, Lowell under privileges, coming Lowell, lease still remain in the exercised, used, hand, alone. On the in the enjoyed by case of a valid or authorized under a assignment valid subletting lease, the lessor’s entire railroad franchise It is indivisi- passes. nature, ble in its and the lessee or or sublessee is assignee entitled to every essential to the right power enjoyment whole RAILROAD RAILROADS. shall be exercised is some- what the franchise In name franchise. as, instance, whether needed railroad times made a question, the name the lessor of railroad or be taken in shall name the- lessor’s lessee. suggestion name interest is founded shall used reversionary whereas, it is clear that the only demised entirely premises; can be vouched an immediate public for which exigency taking what name shall be used in such case lessee. But the. taking by substance, is a than and not of technical rather of form is a matter a real discretion, and author- That power, practical question. lessee, it matter being party holding ity franchise the state for its exer- with the assent responsible cise, controverted. can not be is not and seriously June, contract be objected may contract, that it in does not refer as working regarded services, for not in and does terms to the compensation agent’s But shall be. the substance what that terms declare compensation effect, contract, and be con- its are to necessary railroad and fran- Lowell held plaintiff’s plant sidered. The the business carried contract which to be required chise under a on, be made certain on the road expenditures required and for the benefit of of creditors stockholders. in the interest undertakes business for contract the Maine Under in it after all business, there be any profit principal’s may —for. is account of the road have been satisfied. That on expenditures mode, the Maine for as services one compensating certainly, in wise not wise fact for either point agent, working —whether is, is immaterial. The here both now only question com- a mode of ascertaining it is paying whether agent’s that, submit, I To there statute authorizes. which pensation contract answer. The two railroad be but one can working is, form and make as terms and respects may corporations mutual to the unlimited. considerations enuring parties, wholly most If is of the character. comprehensive The statutory power two be exercised the discretion contracting corporations faith, final. it is absolute and good that this Maine contract of be Lowell and It may suggested char- June, has the application rather than of a contract a lease acter of the time it working respect last; set; that no limit it of time is that may may go or, least, forever, for the entire balance of the term of the Well, to the Lowell. if that be the true construc- contract, not it does lead to the conclusion tion suggested,, that, tend to show not the contract not a it does genuine The statute no limit to the duration contract. puts working It it run to leaves is to be determined a contract. period such and, two choose corporations, contracting wholly as term are term as the for which railroad leases long make that made, it is them to so. But do perfectly competent generally I no means the construction the contract agree sug- hand, true one. I submit is the On other gested be, as, not meant to and is not to be of a contract was regarded character. The Lowell undertook to lease lasting permanent make of its as it and could do so without breach of contract. so far delivery present property, which As property could not make undertook to make “reason- present delivery, efforts able to deliver” —I cite exact of the contract'—- language Meanwhile, deliver as soon as actually practicable. to. deliver, could at once it was respects deliver, to make reasonable efforts to the Lowell and Maine made to work it. But an “reasonable means efforts” arrangement reasonable in of time as well as in Con- point respects. the Lowell and sequently, the arrangement working road was meant endure so might only long such to enable reasonable efforts be made. was an It necessary interim, ad to continue in arrangement, force provisional pend- efforts reasonable to deliver the road under an ing assignment And, the lease. the contract not itself fix defi- does although nite time within which the reasonable efforts are to be made concluded, law contract supplements respect makes the time reasonable time as all the under circumstances of the case may adjudged just proper. said, bo the Maine’s finally, working road as within the mischief of the alienation clause agent lease; that the suffers as if the-same plaintiff’s the Maine were under the plaintiff injury in under an or possession assignment subletting remembered, But it is to be lease. plaintiff’s these first that anti-alienation covenants of leases are not place, law, but favored in are to be construed with the utmost strictness. covenant must be in The broken its exact and literal significance, But, it will not be held to be broken all. in the second place, it is not true that the Maine’s road as working plaintiff’s for the Lowell is the same or means the agent same thing thing if the the as Maine were in or sub- plaintiff assignee lessee under the lease. is not the same plaintiff’s the thing does not the and it mean same for the reasons plaintiff, thing, stated, Maine, because the the already road as working plaintiff’s Lowell, whereas, is, the runs the road as if agent merely the Maine were in under the under a valid assignment subletting lease, it would be plaintiff’s lessor’s subrogated franchise, essential railroad the to extend the including power plain- road, it, tiff’s to build branches to and to for it acquire property or to condemn it the of eminent by purchase, domain. power another, and, submit, But there is still I a conclusive answer to the that Maine’s for suggestion agency working plain- tiff’s road is within mischief the alienation clause v. [Merrimack; to be it. meant prohibited by is something plaintiff’s that must plaintiff is something agency contrary, On intended and to have permit to have held contemplated, one rail- statute The sanction, outset. from very in at the work was force to do its hire another road company in 1884. The to the Lowell its lease made time plaintiff time, law- therefore, that the Lowell might knew at plaintiff other railroad the Maine any its road work employing fully service of the plaintiff’s to do all transportation corporation the Lowell in that, meant to limit if plaintiff road. Knowing one kind of road to any agent, the meant to working another railroad employment prohibit so and to have its intention it was bound say for that purpose, terms. But of lease unequivocal in the instrument expressed there inevitable have authorized on the the contract subject. whatever nothing is, must be held to result, therefore, road to work the Lowell And, the law then made and it. to do competent agent legally a com- other railroad corporation the Maine now makes that, instead of it follows to work agent petent the that the Maine is work- any right complain having Lowell, it con- in truth and fact as agent ing it executed the done when sented to thing being exactly lease. contract of Maine, June, between the and the Lowell This contract of substance; is, with two two in it deals form but one in distinct sets of Undoubt- two provisions. distinct subject-matters contracts been different: have the form separate might edly instruments, one embodied dealing have been separate might of which the Lowell could dispossess with the property contract, and the other with the brea.ch of without' dealing itself not so itself. If the of which could dispossess railroad instruments, been into two had perhaps contracts put two vital have been more the two contracts would difference between not familiar with more legal prin- apparent persons marked rules interpretation writings. legal governing ciples court, contract of and to a and Maine But to lawyers distinct June, 1887, distinct contracts two embodies two respecting which would not be with a clearness certainty subject-matters, if two indentures had been used in the remotest increased degree one, to one of the two distinct each applicable solely instead is with the business at the moment present My subject-matters. contracts, that contract between the these two named of last —with meant to to such railroad the Maine which was relate Lowell not itself of without the the Lowell could dispossess property assent that are owner. Three views of contract of the original is, it road. that One plaintiff’s application possible effected an or alienation of assignment plain- contemplated RAILROAD v. franchise incident thereto tiff’s essential railroad cannot the Lowell to the Maine. But the court from adopt some of which construction except upon compulsion grounds obvious, because it conflicts with the are not directly express contract, of the confounds the distinction between its two terms makes, which contract everywhere subject-matters totally intent of the The second defeats view parties. unmistakable is, that under contract the Lowell the Maine influence gives road, the Maine over the which pays the Lowell loss from such operation, by guaranteeing the actual against any all the time in possession operation remaining is a Lowell. To it kind possible objection precise novel, contract is not be of two within general powers authorized not contracting corporations, specially still, so, statute. If that should turn out to be while any influence to have been the Maine exercised proven might would, nevertheless, held to be left in illegitimate, franchise, the undisturbed road and there would be no breach the covenant alienation of the against demised premises. view, The third which I have been is not open urging, to which the other views stated are liable. It does not objections contract, conflict with the of the nor defeat the language plain pur- of the nor make their mutual ultra vires. pose parties, stipulations hand, On other it accords with words the have parties used, carries out their manifest and makes the contract purposes, one for which can be vouched. In this special statutory authority view, too, the contract is found to be such a one as the exactly would make under the circum- naturally probably stances hand, situation were On one placed. road, the Lowell could not at once deliver but had bound itself to make reasonable efforts to deliver and actually to deliver the road as soon as it could do so. On the lawfully hand, the Lowell was out of active railroad business going and, its reasonable efforts to deliver generally, pending could work ordinary way But one alternative mode of work- except great disadvantage. it in this interval was and that was ing open, by contracting some other to do work. employing corporation That railroad need not Boston & have been the Maine. But, hand, on the other there was no objection being Maine, Boston & : it would be the Boston & naturally as the Boston & Maine was under obligation road accept when the Lowell could tiff’s deliver under an assignment plain- the Maine insist that the ad interim might properly should not be in working hands, strange unfriendly nor in other hands than its own. have, then, We two of this contract principal purposes definitely M2 RAILROAD v.

. established, first, that the Lowell in no should alienate way — franchise; second, plaintiff’s property pending in which the Lowell make reasonable time the should efforts to deliver Mainejshould lease, an under of the property assignment road, work the it as the Maine could do working, legitimately Lowell, as the of the one only capacity, namely, agent are to be have should be it parties done presumed hy intended in that no other. To these two chief capacity purposes contract its substantial are and conform. provisions correspond They what have been to be they might under expected exactly difficult to see how could circumstances. For the be different. they road, the mode of As to of the example: operation plaintiff’s discretion, no had Lowell bound to it work parties being terms of plaintiff’s according incapable wholly being Maine to work it in authorizing way. So, as to the for services: Circumstances compensation agent’s are which a conceivable in railroad would not work corporation it, road could out of and in profit which, on merely get hand, the other another railroad the owner of a railroad would not consent to let work it corporation indemni- merely upon being fied under loss. But then actual circumstances of the against situation, it is not Lowell could existing perfectly plain be let another railroad work reasonably the expected road under a contract which plaintiff’s except secured loss, the mode because be the against thing could not operation might very hand, cause which would the loss. the other . On to do the Maine be more than reasonably expected indemnify road, loss account Lowell of the because plaintiff’s against road of that was not had necessarily profitable, Hence, not been profitable the contract uniformly past. contains bargain might exactly expected make in the circumstances which were bar- placed —a which the Lowell on its was content with (cid:127)gain by part immunity of the loss on account which the against Maine on plaintiff’s content to for services a accept compensation measured able to make the business profit might yield. contract, As for the I readily that it was language agree not to declare that the Lowell necessary should remain formally road and of the should it. Its of the operate hiring Maine to do the work road would not have dispos- franchise, sessed the Lowell of railroad even if had not been But used. the terms language employed, even if are not otherwise objectionable harmful. surplusage, most do exclude idea of They emphatically any attempted or alienation franchise assignment exclude, but, do Lowell the Maine. on the other They hand, with, are consistent entirely purpose make the Maine its to work the con- agent under v. RAILROADS. these On statute. grounds, authorized by tract as specially law does not violate thus any the contract interpreted because contract, as. such a contract but is seen to exactly or situation, would probably in their then naturally the parties, the court make, ask judgment the defendants confidently need not be denied of their defence. this part criticism; that specious, for verbal offers contract opportunities bark, with words- dealing sticking-in and and reasoning, superficial seem to of the may parties, purpose ignoring phrases, But it or of doubtful of difficult interpretation. the contract make to the contracts court to construe according of the is the province the letter which alive, rather than that makes according spirit as, con- effect to their meaning kills to give provisions in the when viewed with the language employed sistently light should circumstances, meant they of all the surrounding than that ask for more have. The defendants nothing is, with; and if it and so dealt be so this contract cannot interpreted of the result. themselves to have fear bring June, contract of under the Lowell and Maine It is argued road, the Lowell is agent applied all of the Lowell. As the Maine Maine, not the Maine gets discretion, choice, and as to the working plaintiff’s, authority and, moreover, of the road and road, takes all receipts pays it, is, instead bills on account all of Lowell’s argument But the rela- it is a substituted principal. really being agent, extent, but is determined not tion of agent principal source, A exercised. delegated powers authority by be coextensive under the An with the entire principal’s authority. attorney is none the less the of his most general power agent man, as constituent, than an under a A special power. attorney business, over another’s or have all power agent, may property have if the or business were his own. that he could is, not that he acts in him What makes principal, agent, name; in another’s he is liable another’s right, properly will, account; later, his sooner or and that terminate. power which determine the existence of the relation of The same tests individuals, it as as between determine in and agent principal is between simply agent working corporations. road, if the it exercises to that end the plaintiff's powers belong it, Lowell; if it is to exercise them in but to the bound account;, to the latter’s to call it to Lowell’s name and subject right Further, later, must, cease such exercise. and if it sooner to work the Maine is none the less an agent is results of because dependent upon compensation turn over to it the Lowell all the receipts business—because hand, the one and it is to of the business on discharge account of the business on the other. It is Lowell’s liabilities on A, B- case as if the owner of a were to hire such a factory, exactly RAILROAD v. and, business, on the B for carry by way compensating services, were to that B should have the whole agree hand, business, on the other he would profits provided, A losses. The is now settled guarantee against principle by great decisions, B, number of that under such a contract notwithstand- loss, he bear the does not become a ing profit partner business, but an principal whose simply agent, compensa- tion for services is the results of the business. regulated by It is that on the defendants’ the Lowell argued interpretation June, and Maine contract of in its application like a or an under a operates assignment subletting lease, and vests in the Maine the same of the possession plaintiff’s road and franchise as if it were as such or as- lessee possession That, or sublessee. under the contract signee fendants session construed as the de- be, it should the Maine a sort of say gets possession pos-—a it to work the road as the ser- enabling plaintiff’s Lowell’s vant and But denied. that such is agent possession legally —is the Lowell’s and not distinct from nor of it possession, independent different, —that it is both in something radically rights responsi- bilities, from the or lessee a lessee’s as- possession acquired by or sublessee—are the defendants signee believe have things they shown in the filed, brief and clearly and which argument already do not therefore demand further notice. As any respects claim, however, and as another of character, the same respects shows a breach of the namely, plaintiff anti-alienation covenant of the lease whenever it shows plaintiff’s any possession of the demised kind, Maine of sort premises or it is any submitted that the respectfully plaintiff’s arguments support them a radical of the only prove real issue. For misconception It is intimated that whether the example: tract of Lowell and Maine con- June, as to the amounts to an applied plaintiff’s or franchise, alienation of the road assignment material,because,whether is im- plaintiff’s not,there it does or does has been a change within the of the possession is, lease. But the truth prohibition facts relied as upon plaintiff constituting do, not, or do change possession about bring according and character which legal significance those facts. The mines the contract impresses upon . of the physical occupation road deter- plaintiff’s It is in of a nothing. whose body employés is that of their possession be. The whoever that principal, principal may Maine, statutes of the state or permit other rail- road to be corporation, as interposed between the general agent Lowell, the lessee of the road, and the plaintiff’s employés it, actual and such physical possession does not disturb agency the Lowell’s Hence, prejudice legal possession. as the Maine the road in either using working capacity, wrongfully as or sublessee under the assignee Lowell, lease to the plaintiff’s under contract —as rightfully agent there are no crite- physical be determined is to it is in which acting the capacity riaof —it the contract of parties, by be determined can only and sort of — meant to in which put they to the relation plaintiff’s words, In themselves. and had power put themselves legal possession has there any change whether been de- Lowell in 1884 to the really demised premises June, If that contract and Maine the Lowell pends act as the construed, means that contract, as rightly road, all the facts of the plaintiff’s Lowell’s working agent with that are consistent of the road the actual working respecting theory; hand, is to bo as- that the Maine if it means the other lease, the same facts may, though or alienee signee with that be reconciled theory. means so no easily, Lowell and Maine contract that the It is parties argued road, did not June, contemplate applied Lowell’s the Maine as the road by agent working such an arrangement, the statute authorizing under expressly terms had, and more not to be different and pertinent simpler that would they of their used. But are deprived have been parties cre- of the diffuseness language because infelicity rights ating the clear, the substantial provisions them. If their purpose couched, will contract, in which are not the phraseology is. The what the contract purpose determine really under the to make subletting not lease to the any assignment Lowell, transfer of of the demised view, In that be mistaken or denied. is too plain premises, in Lowell shall remain operate that the possession provide view, that the franchise road. In the same they provide plaintiff’s shall, Lowell, and that it the first tolls shall remain to take instance, road. In the all the receive earnings plaintiff’s that the of all rental of view, same kind shall continue payment every they provide Lowell, the Maine to be made only account expenses to indemnify undertaking against that road shall Then comes thereof. provision under the direction of the Maine. And all respects operated alone, if it stood the effect of this provision yet, whatever might context, construed in connection with viewed light to, referred there can statute and of the provisions just submitted, result, be, but one the effect it is namely, out of of the the Lowell demised contract is possession put Maine, in, but is to make the the Maine simply put premises the Lowell’s the road in the Lowell’s name and in to work agent the Lowell’s right. Boston, writ of Con- J. This is a entry brought by Clark, Railroad, the Boston Maine cord & Montreal Railroad against of that to recover November possession portion of Merrimack. recifc- situated in the plaintiff, county RAILROAD v. the transfer of its road to the Boston & ing Lowell Railroad aby 19, 1884, lease dated June the for the term of ninety-nine years, therein condition the lessee should not or under- assign let the demised with the premises, thereof, part possession with the written consent of the except that on the lessor,-alleges November, 1887,

first the Boston & Lowell Railroad day cor- covenants, in violation of its and without poration, the written n consent of the and without plaintiff right, assigned railroad and delivered the of the to the possession defend- same ; ant lease of the to the Boston & Lowell plaintiff Rail- forfeited; that, became thereby accordance with its entered the demised provisions, plaintiff on the upon premises n eighteenth day November, 1887, purpose enforcing the forfeiture and the estate but determining thereby granted, defendant refused and still refuses to surrender the possession of its railroad to The action is plaintiff. .the founded an underlet, violation of the covenant not to alleged assign, with ten consent of the the demised possession with the writ- premises except lessor; and the is whether question there has such a violation been of that covenant as to work a forfeiture of the lease. arises in No this action as to the question Boston, validity Railroad, Concord & Montreal lease to the Boston & Lowell or the of the transfer'of railroad to legality the Boston & Lowell Railroad the under it. The action proceeds upon that the Montreal lease assumption a valid con- originally tract and the which the now ground upon seeks to be plaintiff from is, relieved the further itof an forfeiture of alleged estate, the demised from a violation of its resulting covenants by the Boston & Lowell Railroad in assigning, underletting, part- with the railroad, ing under a (cid:127)contract of lease to the Boston Railroad, & Maine dated June 1887, and transfer of and estate October, 1887, demised on the eleventh thereby, day Boston & Maine Railroad. The claims a forfeiture on Railroad,- the June the Boston & Lowell ground the lease of 22, 1887, demised to the Boston & Maine Railroad its con- 19, 1884, tract of lease of June Boston, Concord & Mont- Railroad, real and that the execution of the lease of June 1887, to the Boston & Maine was of itself an of the assignment road and a violation of the covenants of the Montreal lease; and that the Boston & Lowell Railroad have with the of parted railroad to the possession Boston (cid:127)& Maine Railroad. The Montreal lease that the lessors enter and provides deter- mine the estate in case of a breach of thereby of its granted any

covenants; and the covenant for a violation of which a forfeiture “ claimed as follows: Said second & Lowell Rail- party [Boston covenants and that it will not or underlet agrees assign road] premises demised, or with thereof, hereby part possession ” written with the consent of the first Con- except party (Boston, & Montreal cord Railroad). 22,1887, of the Maine lease of The June provisions bearing upon “ consideration, under are the The following: lessor question demise, & Lowell doth and lease unto grant, Railroad] [Boston '& Maine the lessee successors and Railroad], assigns, [Boston and railroad its railroad property every description, franchises, easements, and all rights, privileges, appurtenances with thereto to demand and receive belonging, together right rent, revenue, income, tolls, of the all demised profits prem- ises, title, also therein all the and interest of the including right, it, in and to and all railroads lessor under any lease or operated by otherwise, far as the so same are or transferable assignable by violation of or of the lessor without law but not other- agreement, wise; bonds, and in and to any contracts of or obligations, railroads, individuals, with or other and all corporations, income benefits be derived therefrom . advantages . lessee, unto the assigning hereby transferring all subject thereon, and incumbrances all railroad, obligations rail- legal franchises, and assets of road property, every as description, except stated. above “ lessee shall all The pay lessor, and operating expenses of which it of all railroads shall come into possession, which it instrument, under and virtue shall included of this operate there being therein as renewals; thereof all repairs contract, out of arising business, expenditures any obligation, neg- whether, misfeasance, or however otherwise ligence the arising, same now exists or be created, hereafter liability connected the use and demised way prem- ises, or of railroads the lessee or lessor operated as herein pro- vided, . including damages persons . . The due, shall the same become lessee pay, rentals of all rail- roads of which erate under and shall come into or which it possession, shall op- instrument, virtue of this continu- during lease, and of ance of all roads leased the lessor according leases, the terms of the several and the interest on the indebted- lessor, ness the indebtedness of all roads leased or the lessor which this lessor is under operated by obligation pay, whereof is hereto a schedule annexed “ The lessor covenants that if it be found impracticable immediate once deliver erated leased or op- it at the of this reason of inception any agree- reason, ment or other it will use contrary all reasonable deliver, deliver, efforts to and will thereof as soon shall, meanwhile, lessor continue practicable. posses- railroad, and, sion of such under the direction of the lessee in all continue use and shall same under operate respects, same, with the and to the rental owning contract company pay same, to be other consideration use of agreed paid or and thereof, but transfer to receive shall earnings immediately use, which, such thereof, to its own over all lessee and pay earnings consideration shall reimburse the lessor for all expen- costs, ditures, and hold it all and harmless indemnify against claims, out and liabilities of the lessor’s and possession arising railroad, of said or under and virtue of its lease or operation other the same. contract operating use lessee shall and the railroads “The and operate properties demised, in lessor, accordance with the charter of the herein several whose so . . roads are corporations of shall operated cars, furnish all engines, rolling-stock, equipment in addition to the like required, description hereby every property demised, due the railroads under and operation operated lease; of this shall observe virtue all the perform provi- of the with of contracts lessor railroads now sions leased oper- it, under the of this indenture ...” provisions ated by An examination these of the Maine lease and of provisions instrument does not whole admit of a reasonable doubt that of the intention was to transfer the interest of the & Lowell in its Boston railroad and railroad prop- and the operation, control of the erty, practical management, same, the Boston & Maine Railroad. conceded that actual went into lease Maine October operation and Lowell have since been under it. corporations acting these facts the of the forfeiture of question the Montreal Upon is not a difficult one. in the Montreal lease that the Lowell provision corpora- underlet, should not tion with the assign, of the possession with the lessor, demised written consent of the was premises, except to secure a designed personal performance covenants by The lessor had the to choose their corporation. right tenant, and, whatever it, have been its purpose doing is irresistible that conclusion stipulation against assigning, underletting, parting demised prem- n was inserted the lease to ises sonal the secure the exercise of the per- discretion, of the lessee integrity, judgment shaping policy controlling management road. The of the lease is of no language other reason- susceptible able interpretation. 22, 1887, Maine contract of June By the Lowell corpora- tion leased its railroad and to the Boston & Railroad, and continue in the agreed Montreal which it could lease, to use lawfully it under its Montreal in all operate respects .under of the Maine direction the- corporation. done under Nothing 449 v. 11, 1887, when the Boston & Maine until Maine contract October to it took of the leased the possession corporation went into Since then and the lease Lowell the Lowell operation. company, — n road, to have the Montreal claims operated company with the Maine to its agreement corpora- presumably according is no evidence or claim that it has it in tion. There operated But it is of the Maine contract. violation of the terms entirely whether the Maine has exercised immaterial any over the the Montreal actual control road, management operation the Lowell has without con- or that company operated so, If it is evi- the Maine the fact merely sulting dence that corporation. the of the Lowell has been sat- management company to the Boston & Maine. Whenever the Maine corpora- isfactory control, the tion chooses to interfere or exercise active Lowell to interfere at moment. bound obey. any with The Lowell has its company voluntarily parted power road, control the of the Montreal and has become the operation Railroad, of the Boston & Maine and servant agent session is the pos- This, Maine possession corporation. spirit substance, is a breach of the covenant of the Montreal and and lease it. If forfeiture estate the condition granted of. terms, it is in effect,. of the Montreal lease had been as legal underlet, should not with the lessee assign, pos- session of the Montreal road the Boston Railroad Cor- it would not admit of a the execution and question poration, of the Maine contract of lease was a violation of that condition. lease, J. the first the plaintiff (the Montreal Carpenter, By the Lowell for the its railroad to term of conveyed 99 company) lease, from 1884. The second made June years Lowell Maine, 22, 1887, is for the term of dated June 99 years from it In the first lease Lowell covenanted April term, would operate during would it, with the of it, or underlet or part possession assign except consent; and that if the written Lowell vio- plaintiff’s of its covenants, lated enter take plaintiff might determine Lowell’s estate possession thereby therein. In first article of the second conveyed it, so were own road and all roads leased to far they assignable and the Maine without violation of law or of agreed agreement, the Lowell. the rent of all roads leased to pay By agree- ment, the second article and read as must be with the rest instrument, the rent the Maine bound itself of all pay roads Lowell, leased to the were not. whether assignable : The second article is as follows “The lessor if it be found covenants to at impracticable YOU. LXY. RAILROAD RAILROADS. deliver immediate railroad leased or once oper- .any of this reason inception ated by agree- reason, or other it will use all reasonable ment contrary deliver, deliver, and will thereof soon as efforts lessor shall meanwhile continue in posses- practicable. sion railroad, and, of such under direction lessee continue to use and the same under shall all respects, operate same, with the and to its contract company owning pay use of the or other consideration rental agreed paid thereof; same, to receive but shall immediately earnings its over all such to own and the lessee transfer pay earnings consideration thereof reimburse the for use, which in shall lessor and it all and hold harmless indemnify all against expenditures, claims, and out of the costs, liabilities lessor’s arising possession railroad, or under its said and virtue of lease and operation by the same.” contract operating or other consent, the made without and the contract was This it the Lowell and the Maine was Octo- by begun performance ber the asserted its its Thereupon plaintiff, having duly and entering of forfeiture by taking possession right violence, without it could personal so far as properly brought road Walker, this real action v. H. 63 N. (Walker the against which, the Lowell has been aas in agreement, by joined 321), defendant. filed, has been and the ninth rule court No special plea in the absence the case would would H. 582), plea, N. (56 issue. the Under plaintiff on plea be tried be entitled general count, both first defendants against judgment claimed of them is one for estate either years only because and would also be entitled a not freehold. judg- Maine, that because of nul disseisin plea ment against in itself v. Chamber- would admit (Fletcher possession corporation admit violation of the a thereby N. H. lin, 470), 61 defective a But possession. covenant against change Lowell’s no understood that be amended. The parties pleading and that raised on the want to be special pleas, was question the second bill in each defendant to to equity the answer such a Though this’action. as practice be treated plea and decided as not the case considered approved, irregular if the in answers facts stated were material properly - pleaded. formally lease, and of the second admits execution Each defendant denies that before a of its answer. The Maine makes “ copy . 11,1887, . . Lowell and controlled the October managed thereof; lines or or leased . . . any part corporation, 11, 1887, railroads; October after including the roads except or continued plaintiff, operate operated as ” Lowell, stated; that the hereinafter alleges alleged defendant of June to the covenants of its lease “pursuant 22, thereof, second has remained lease], possession [the to said same contract.” conformably operated respects “ it not has The Lowell did and never alleges assigned, underlet, demised with the parted premises . Maine . . . . . to the . . either . plaintiff, not or to and has with parted person, any, thereof, but control still controls the possesses, operates, ” same accordance with the the first lease but provisions admits, not does covenants in the of its performance deny, denying 11, 1887, second after October averred the Maine. Both defendants the exact distinctly issue by to be tried. present Lowell, say by making perform- They Maine, underlet, its contract has not assigned, ing with the of the demised And parted premises. they answers, maintain in Lowell, aver in their argument, it uses and under though operates Maine, direction in all the Maine’s exclusive respects benefit, “still controls the same accord- possesses, operates, ” with the ance of said lease from the provisions plaintiff. They whether a of the second present lease is question performance violation first. Lowell, Did by making performing stipulations the second break its covenant not to assign the demised or its covenant not to with the premises part possession? with, of, and the Maine take might part plaintiff’s might Dobb, road without a v.West L. 5 legal assignment. R. Q. 460; Quackenboss Clarke, B. v. 12 Wend. 555. Tt might an make without assignment Mc parting possession., Minot, 251; v. Hunt, 4 N. 32; H. v. L. 6 White R. Exch. Murphy Westcott, 461; Bristol v. 12 Ch. Div. Corporation Williams v. 1 B. 238; Brown, & B. Church v. Bosanquet, 15 Ves. 265. The object covenant requiring with the of its against alienating legitimate. great road was parting A -faithful of the covenant performance might value, and its a non-performance great injury, plain- tiff. The have, should parties agreed security for its performance, leased. Whether the property plaintiff is in fact a violation of the is covenant not in injured by this case material. the common law leases for were forfeited if By the tenant years title, disaffirmed the lessor’s claimed a estate than greater he was to, 106; entitled 276; aliened in fee. 4 Kent 274, 2 Bla. Com. T., Abr., 2; Bac. Leases De v. G 9 N. 9. Y. The cove Lancey anong, lessee, nants of a a a them, provisos breach reentry upon are, contracts, like other construed and without favor fairly either A strained and forced is not party. to be interpretation given them in order to defeat their The intention of the object. parties, v. RAILROAD RAILROADS.

452 instrument, is to be the whole -by as expressed language ; Elsam, v. 1 M. & M. 189 Goodtitle Davis and enforced. found 672, 87, 95, 96; v. 6 H. L. Ca. Saville, 16 East Lumley, v. Croft 461; Westcott, 693; v. Ch. D. Bristol 12 Hayne Corporation of 95; 421, 427; M. & Keeling, N. Doe v. 1 S. 16 B.C. S. Cummings, v. ; 617; B. & Al. Sales, 1 S. Doe v. 1 Ger v. v. M. & 297 Roe Spry, 271; v. Albans 7 Ch. D. St. Battersby, Bishop man Chapman, 359, Harris, 532, 362; v. Mass. Q. 106 537. B. D. Whitwell 3 to an words are not Technical terms or necessary special assign ; which shows the intention ment any language is sufficient. one to the other from transfer form of the If it has the effect to instrument is immaterial. legal whole to another the lessee’s interest part pass his term or the remainder of for his entire demised premises term, the whole is An term it is an under-lease assignment. v. Ld. 99 Beardman 1 Hicks Downing, Raym. an assignment. Terhune, 57; v. N. Wilson, L. P. 30 453. R. 4 C. Y. v. Bedford under-lease a rent rent by the original exceeding Although reserved, the so called under- expressly stipulated he is nevertheless hold as tenant of his shall tenant in law the tenant grantor, Hakewill, lessor. Wollaston v. original Webber, 393; 323; Taunt. Parmenter v. 3 M. G. I, his interest in the Abr., Leases, 3. A lessee’s Bac. grant a is an Dartmouth or in assignment. whole premises Streeter, 29; H. N. v. 64 N. H. Trustees Clough, College acres, 106; one hundred E. lessee of Com. Condition A Dig., no shall not more one acre he can condition assign, convey he or one the condition than can without hundred acres. ninety-nine breaking one His grant ninety-nine ninety-nine his of one hun acres is no more a breach than hundredths grant manor, his If A is a aliena of an acre. bound not alien dredth Abr., Condition, acre, it, is breach. Vin. tion one a parcel whatever, lessee, “If whether U, a. instrument by any interest, not, has with his he conditions entire parts reserving his if he has transferred interest made complete assignment; the he has made an tanto.” premises, assignment a pro 383, ; 391; Rosenthal, N. Debt E v. 61 Y. Com. Dig., Woodhull 411; note; v. 187, Edwards, v. 1 Jac. Palmer Wollaston Cro. Doug. Hakewill, It is that the fran not material all plaintiff’s supra. Maine, if such is not the were Lowell chises conveyed by is or of the fact. It one of them the enough any part any to Nor is material the it pres property conveyed. plaintiff’s the whether the franchises are principal ent plaintiff’s questions incidents, or of which its lands and chattels are inseparable thing whether the fran the is the property principal tangible are incident. chises effect con- the second lease Whether the performance legal or of the to the Maine the franchises and property plaintiff, veys v. RAILROAD RAILROADS. 453 them, or the of the is a question property, any part to on a the determined consideration not merely granting clause of the but of all the provisions relating single the The is not the road plaintiff’s assigned subject. formally of tlie is from the Maine. On contrary, excepted operation “ But the after clause. franchises and property granting . . . are out of the taken category things conveyed being dealt with in clause of the contract.” then a By special separately Lowell terms' of this second (the the literal clause article) shall that will to the Maine and the Maine covenants give franchise of have the Montreal. operating using, controlling, “ The that the Lowell shall use and covenant oper ” “under the is direction of the lessee in all ate respects” the Maine shall an use and agreement operate express servant, of the Lowell agent, through instrumentality In the their the Maine contract manager. performance general is mastér, the In Lowell the subordinate. the absence of is, not, is Lowell estoppel, respon question their sible to notice the situation for employes pay, others for the state for injuries, patrons negligent of all the of law to railroads. performance requirements relating is no more indi answerable in these than The Lowell particulars Palmer, de vidual cided in Aldrich v. superintendent general manager. December, 1860, Grafton county, reported (for 24 note, 6 head see Law Stone v. Monthly Rep. 32); Cartwright, 411; 313; Rundlett, T. Sto. Brown v. 15 N. H. R. Ag., v. N. H. 38. has no inter Weymouth, legal Sleeper est dollar of them is of the earnings: every property If the Lowell can maintain an action to Maine. recover moneys due or funds hands of an in the freight, employé agent, the Maine would be a defence. release Whatever good money “ receives, it is over to Lowell bound the Maine imme pay son, no It has lien. 63 N. H. In Gib Stillings diately.” literal and words, the Lowell explicit agrees give, perform by franchise ing does to the Maine the give, agreement all tolls—the from the receiving taking business of the road—to be held gross receipts Maine -forits exclusive It is not material aré received benefit. the Maine they as an of the the hands Lowell If the road through intermediary. income, discontinued, or ceased to be a source of were would lose Lowell the entire Until 1983 not loss would fall on the nothing. of such net as the Maine. Lowell gift profits tolls, of the realize, but management may gross moneys —all be obtained the use and property the direction the lessee “under respects,” during term. This entire remainder Lowell’s is an assignment. interest of the it the entire beneficial By to the Maine. grant conveyed By profits RAILROAD v. “ land, itselfe for whole land doth what is the land but passe; ?” Lit. b. A devise of the thereof Co. use and income the profits devise of the land itself. McClure v. 44 N. is a H. of land Melendy, 469; 46 N. H. 234. The Lowell’s Griffin, subsequent Wood title, and interest in the road of all would right, plaintiff’s grantee value, he would take nothing assuming grant acquire the road Lowell’s to use and oper right possession the direction of the Maine. The under naked ate it possession direction, the barren it under the right operate another, is worthless. Its the benefit value is in for control the take the usufruct of the management right of whomsoever it be and whom possession may property, be soever may operated. of the second lease and the covenants the performance By them, is the relation of established between the principal agent Maine, Maine. If the Lowell is the of the and the Lowell agent of title and is a forfeiture there by assignment possession; law, fact, or in the Lowell to hold and not operate possible as the tenant the terms road plaintiff’s according plaintiff’s lease, and also as the Maine’s the first agent according is, The other’s of the second. Which one is the question terms defendants railroad was plaintiff’s say excepted agent? clause of the because “knew from granting they ” “ or alienation of the fran- assignment subletting any chises cerned,” trouble and cause serious mischief for all con- would ” ” “ “ avoid; the exact this was meant to thing they “ contract one railroad with another knew they the exclusive road could use of another’s but a anything “ knew the rule of law . . . that what- indisputable leasethey sese, of the inter be the principal agent against ever rights for all the world always, all the agent’s purposes, but that as the Lowell could not exer- possession,” principal’s franchises through agents, cise except might with the the road without parting assigning qualified corporation might person employ employ any — work; to do its therefore that in the they say, agent Maine—as must of the have intended they use and operation the Lowell’s could not have the Maine make agent; they Maine the and the make the principal intended both a would effectuate transfer of the for that arrangement agent, effect of the contract title and possession; legal change “ work Maine the Lowell’s the road in the make the is to agent in the Lowell’s name and Lowell’s right,” stipulation the Lowell under the road shall operated by that direction Maine, meant, their in all language respects mean, that it shall be the Maine must be construed under the direction operated by in all Lowell. respects the use the Maine controls their contract By 455 v. RAILROADS. 1888.]] and bears all the loss and road, takes all the profit, the plaintiff’s master; fact, in the business, the Lowell the of responsibility —is. Maine, direction of the under the control and road the operates loss, business,— in the and no interest the in no profit has is, part To the Lowell master fact, servant. principal the style in if in conceivable view servant or agent, permis- the Maine here. The relations no useful sible, subserves purpose legal A, To that the misnomer. who has not say are by changed B in a railroad exclu- control A’s to direct operating authority is is B’s servant operation benefit agent sive in the law or in a sense unknown to business. to use language intended that and the Lowell The Maine fact, law; but in should be conveyed pass, should but be see some held' not to To peculiarity judicial pass. can be their accom New purpose Hampshire interpretation from The Montreal excepted say, plished', they controlled, used, shall be of this but operated, agreement, operation and all as if it were the Maine in included respects enjoyed be herein, orders shall transmitted the Maine’s through except said, It is as if had concerning the Lowell. contract, entire not be instrument is not and shall construed to This Railroad, v. N. H. 243. 61 a lease. Burke ” “ demise, doth and lease its roads assignable The grant, “ A the Lowell the Maine. further doth to also provision, demise, Maine,” and lease roads non-assignable grant, a notice of readiness to have been would surrender equivalent owners without them roads, their controversy. those Concerning so raise the the instrument was drawn whether question ” “ “ them, with the the Lowell would assign thereof,” an become the Maine’s performing agreement thereon, them indemnified servant under operating holding the Maine. Maine’s orders all Instead earnings paying “ demise, lease,” or other of doth terms of ordinary con- grant, of those roads a present assignment veyance signifying by delivery completed the Lowell’s them writing, an interest in them were contract disposed executory enter the service of the future holder and The Lowell shall tense. roads Lowell’s under non-assignable operator and shall the Maine in all direction of respects, pay the rents the Maine shall to the Maine pay earnings expenses, it harmless. the Lowell and hold and shall indemnify in the first the Lowell’s covenants The cannot effect verbal device in avoided second. circuity language hold that To performance agreement, to control franchise Maine shall exercise use receive and hold the the road and shall tolls for term, remainder of the exclusive entire Lowell’s benefit during covenant is not a breach fritter assignment, against 456 RAILROAD v. the covenant and make it worthless. v. away L. Varley Coppard,

R. C. P. of the condition purpose against is defeated. The as well have been assignment provision might form, omitted. It has no substantial effect. itWhat forbids in Carter, Hawke, 300; substance. Doe v. 8 T. R. Doe v. permits 481; Elsam, 189; 2 East v. Davis 1 M. Corliss, & M. Jackson 531; Silvernail, 278; Johns. Jackson v. 15 Johns. Jackson v. 3 230 Stickles, 258; Wend. v. Livingston 257, 7 Hill Kipp, 253, 18, C., 149, N. H. Gillis 17 21—S. 21 N. H. Bailey, The defence that the Maine is thé of the Lowell is a trav- agent erse those covenants of the second lease that to the Maine give road, the control and the of the earnings impose the Lowell the of obedience. The duty possession property held session. When the second a servant in his subordinate is his master’s capacity pos- effect, 11, lease took October it the Lowell’s of the Montreal from that changed master as the possession of a servant, that of a substituted the Maine for the Lowell principal possession operation, conveyed from the Lowell to the Maine the Lowell’s rights n control. The Maine’s held for it possession, Lowell as its servant, is a disseisin for which the can maintain plaintiff trespass this real action the Maine. If the Lowell against had filed a disclaimer, and the had its plea plaintiff replied maintaining writ, the Lowell would On a like issue prevail. between the Maine, and the would The disseisin plaintiff plaintiff prevail. transaction, is a and not complete to deliver promise when consents. Since the plaintiff that the Maine agreement shall have the Lowell’s interest and has. been carried into power execution, it has not been a mere covenant to make an executory Divested of servant, but as a assignment. everything the Lowell bound the terms of to withdraw agreement from its menial “Meanwhile,” “as soon as position practicable.” is, that ten until June if the does not its writ- plaintiff give to an consent the Lowell is bound assignment, to remain in Maine, and, the service of the whether consents or plaintiff not, the is bound Maine the rent itas becomes due to the pay bear all the and loss of the plaintiff, and is entitled expense operation to all the The profits. effect of only obtaining be, consent would that in the plaintiff’s the or Montreal operation orders wire, Maine would given by no be sent by longer otherwise, the office of the through Lowell. There is no occa- to consider the sion amount of large on the testimony presented Maine, irrelevant and immaterial whether the on and questions 11, 1887, after October exercised of direc- stipulated power in all tion order respects conduct and general entrusting of the road to the Lowell as operation general manager, whether from time to time it orders, issued special specific or, did, if it whether sent them direct to the men in its employ, v. them of transmitting the idle ceremony through or performed Lowell. no In this suit at law depend upon gen- rights from a of an equitable distinguished eral special question broken is a one of contract. The case simple character. legal road to transferred agreed back; take it and the Lowell another plaintiff might company no not to make. There is transfer which has made the agreed that affects merits. or want of equity legal peculiar equity no deprive The court has remedy power provides. contract specifically which meets in and lan- which a forfeiture The disfavor legal presumptions irrelevant, because here is no rules ambiguous technical rules do construction. Those or doubtful guage not alter presumptions in the the contract is to put of the Lowell principal place the defend- until without consent. Since their intention make writ- have ants ten words that expressed change but it is how admit one useless meaning, inquire it is that what intended do they improbable probable have made, it done. Were such would be found not inquiry merely certain, that intended to the but use language probable, their covenants the in sense of which it is only capable. full, their are so words chosen carefully express simple, purpose that a mistake It has not been impossible. sug- precise, one, there was mistake. Had there been it could that gested have on a in been rectified of the bill reformation equity filed, bill If such a had been the decision of this contract. would, case shown, on and cause been motion have await postponed the in the result. On that would raised question pro- the three volumes there abundant and deposition’s ceeding, unconflicting the a doubt. testimony puts point beyond their intentions were what would shows necessarily the without from second lease extraneous evidence. The inferred desired let its own road the Maine for 99 if Lowell years rent, its released from from all it was obligation pay duties, liabilities, and risks lessee and of the Montreal operator If went out of business on its other roads. own to continue business on the Montreal. The did not propose Montreal, desired to hire the Lowell and the take Maine the Lowell if it could have both. When the was bargain put their with professional purpose expressed accuracy writing, enable the Maine to would and skill provisions keep should court hold that Lowell’s covenants Montreal could be evaded circumlocution. alienation by against effect, 11,1887, soon as the second took October As to receive rent. refused By agreement parties, plaintiff “ account,” on afterwards made and received were payments EAILEOAD EAILEOADS. [Merrimack; “ of either without prejudice rights partj’-.” By receiving time, rent before did not waive the forfeiture incurred the transfer of the of its road from the possession by Maine, to the' nor the forfeiture Lowell caused the Lowell’s A alienation of its leasehold title. landlord does not waive the occurs, breach of a condition nor rent before the breach by receiving it after a breach of which he is by receiving ignorant. Until 1887, 11, October there was no of the change possession road. Before that the Lowell held the plaintiff’s in its own vant day possession on and after that as the ser- right proprietor day . Maine. On agent point pleadings concur. The denials above recited of proofs allegations Maine are an averment that the Lowell entered perform- Maine, with the ance of covenants October and not evidence, before. In the second volume of the is a page paper- Lowell and signed by president president Maine, in which those officers that" say day delivered and the Maine received of all the Lowell’s possession roads. The did not take or control of assignable possession the Lowell’s roads before it took non-assignable ones. When the second effect, lease went into October assignable 11, 1887, before, and not the Maine to exercise over the began road its in all power direction. respects, —took master; the Lowell to use and position began operate direction, servant; under that and the place legal —took of the road from the Lowell to the Maine. If passed the defendants had the waiver of a forfeiture proved incurred by title, Lowell’s alienation of the it would them, not aid —it would not be a waiver of forfeiture created tbe change possession. If the Lowell’s leasehold estate in the Montreal was not assigned 11,-1887, before October covenants of the sec- unperformed ond it was of those covenants assigned by performance afterwards; on that and the forfeiture alienation was day rent, not waived then occurred. the of because it had by not plaintiff’s receipt If, the by mere execution and of the delivery covenants, a lease without of its the performance Lowell's Maine, estate in the road to the the forfeiture was not passed rent, the waived of because there is no evi- by plaintiff’s receipt 11, dence in the case to show that to October tending prior existence, the had notice or of the deliv- knowledge or contents of the lease. If the defendants’ omission to call ery, witnesses on this when the were taken had been point depositions inadvertence, it must be due assumed that would have they moved the case for admission of the evidence open (if the. existed and deemed it when their attention they was material) to the called the and oral of the subject printed by arguments were aware of the with which plaintiff. They liberality v. accident, mistake, or mis- from tbe are relieved consequences cause, in the of the either in merits pleading fortune touching have had abundant for relief. time They when they apply proof, motion, for such a knew would be they and opportunity sufficient reason for not mak- to be. One their if ought granted ing the Even if motion would be its futility. the by unperformed the title of the Lowell’s was second assigned covenants 11, 1887, of rent to that before October plaintiff’s receipt prior existence, full of the and contents delivery, knowledge day, of the waiver the forfeiture on that could not be a caused the change possession. day by briefs Lowell of the defendants’ contend that the In one covenant, not, could to its road contrary assign Maine; void; that an would be ultra vires and assignment “ has been therefore there no alienation . . . and that by is to franchises That property.” say, broken; covenant not to the Lowell’s assign incapable being the Lowell for an made to Maine and assignment by put 11, 1887, effect from October them into by permanent plain force of some tiff has no because remedy, (which technicality do not there is a breach of the the defendants specify), although in fact, is none law. The finds no covenant countenance there position in either the cases cited in its In Ottawa support. Black, Ill. there is R. R. Co. nothing suggestive covenant that a alienation is not as idea corporation’s against broken as or that capable Lowell being agreement, to the could for 96 convey to enter and enforce the plaintiff’s right subject only years, Powell, In Doe v. 5 B. forfeiture. C. lessee’s voluntary lessor, voidable have been election of the would assignment been no law. But the had was an there bankrupt assignment on the lessee and it act of was held bankruptcy his his estate and that assignee leasehold passed bankruptcy, law, an act was not a involuntary being assignment, ,J said the breach of covenant. Holroyd, voluntary assign initio, ab “not became void but was nullity ment only and the avoided under the bankruptcy proceedings actuall}7 to be taken of the same before any advantage attempted sup circumstances, for Tinder these forfeiture. want posed it was not law as an in considera deed’s assignment, operating but in tion law an assignment bankrupt, respect no such had ever been executed him.” This same as if deed decision, irrelevant far as whether in so right wrong, except would have been a assumes voluntary assignment if it and a forfeiture had not been breach of covenant In this there is case annulled proceedings bankruptcy. law. The no bankrupt question stipulations second which the performance plaintiff’s be transferred from the would Lowell to the Maine for the 1983, 1, went term June into effect when the.Maine took ending Lowell, October 1887. Between the Lowell possession effective, the transfer the Maine and would have not, remained force 96 if the had reasonable years n entry, its exercised right object. “Further, on the same the defendants in the same grounds,” say brief, “there has been no of the Lowell dispossession Maine, neither to authorize or to corporation being competent in it. If the evidence there has been interfer- acquiesce ence with the Lowell’s full of the franchises enjoyment pertaining cannot as other than the regarded per- sonal of the individuals . . concerned. . trespass immediately No case of sort . . . can be heard or tried in the present suits, to which the Maine and Lowell are the defend- only parties words, ant.” In other like the can do no corporation, king, 'committed within the wrong; injuries agents acting of their and not their cor- scope authority, agents personally, master, are The which the porate responsible. grounds upon defendants this to the law that put exception regards posses- sion and acts of an as the and acts of his agent possession principal disclosed, are not sustain no is cited. Until a authority is made change law-making power, corporations acting by manner, like individuals in the same will continue agents, acting to be torts and contracts. capable committing violating

Judgment plaintiff. J., Smith, J., Doe, C. concurred in the of Clark opinions Carpenter, JJ. J., This is a real action. No formal Bingham, dissenting. plea filed; but, has been stated in oral by agreement argu- ment, the facts the answers of the defendants to the alleged bill in so far as material to their defence in chancery, action, are to be treated as if The actions formally pleaded. defendants, heard and submitted were The their together. in. answers, 22, 1887, in substance set forth the instrument of June that the Lowell estate with the deny assigned parted posses- Maine, sion or control of the road to the and aver that the is the of the lease Lowell the owner of June it, road under its duties and covenants to performing the plaintiff. 19, 1884, The June leased its railroad to the Lowell for plaintiff, month, from the first and the ninety-nine years day in the lease not to underlet, covenanted with assign, of the demised with the written premises, except consent of lease of the Lowell to the Maine is plaintiff. v. 461 RAILROADS.- from the first 1887, 22, and is years ninety-nine June dated of the lease is The date prima April. day evidence preceding facie execution, and will presumed the time of date, unless the is- on contrary delivered day have been T., 223; s. 57; Land. & Sweetser v. Wood 4 Bac. Abr. proved. 446, 452 ; 403, v. Van 8 Wend. Lowell, Slyck, 33 Me. Seymour Y. N. 397. v. 41 Snyder, 414; People has broken its the Lowell covenants claims plaintiff n this action to the lease assigning, brings and forfeited is, claim of If forfeiture recover the premises. the rent which became due- admitted, it waived it collecting been breach, committed. had knowing after the L. & Tay. 648; 497; v. E. v. T., 5 s. Lumley, Arnsby B. Croft 413; N. 519; Nichols, v. 46 Y. Woodward, B. Ireland 6 &. C. C., 303; 40 449 — S. 93 Am. Mo. Dec. v. Finney, Garnhart Gomber v. C., 467; Hackett, 70 Am. 6 Wis. 323 — S. Dec. Brickett, H. 2 N. Coon v. is no But said there evidence had showing plaintiff it is Lowell’s to- or existence of the provisions knowledge 11, 1887. It is time that reason of of to October the Maine prior inadvertence, not afford formal the case does an obvious such tance, proof ; not to be this does seem but controlling impor knowledge in and those whom are as railroads public corporations, concerned, vested, are so as the public are far agents, public Laws., 160, not c. s. and inasmuch it does admit of 123), (Gen. fact lease and its were- provisions contradiction that well and had become so known matters knowledge, general 1887,. of rent in receipt September, jurisdiction prior Mestier, Ann. v. 18 La. 497—S. C as to be notorious. Lanfear ., 664, 667, 676, 694, 681, 682, 696, 658, 663, Am. Dec. 89 note; 278; State v. Me. 73 and authorities cited Moffitt, C., note, 49 State, 201, Am. Ct. 304 — S. Rep., v. 15 Tex. Temple App. Justices, 204; 579, 580; N. 203, 35 H. Opin Opinion of Justices, 607; Lake v. 45 N. H. 40 Young, ion Company 430; 420, 235, N. H. v. 47 260 N. H. Division Wells Company, 194; 135; 15 Kans. Cool. Con. Lim. Howard County, Brown, State, 115; 93, Ala. v. H. v. 48 Hall 58 N. Moody 6; Teschmaker, 392; 95; Ev., 22 1 s. U. S. v. How. Gr. 721; S., II, 24; Part U. 1 Wall. Const. art. Romero v. Gen. Journal, 1887, Laws, 11; 4., 10, session, ss. House June c. pp. 483, 77, 80, 108, 116, 123, 470, 486, 75, 481, 484, 487, 488, 981; 490, of W. M. Chase before 491, Com., Railroad Argument 11, 14-17, 23, 1887, 1, June printed published pp. pam committee, before the same Harry Bingham Argument phlet; August 3, 18, 20, 5, 15, 21, 10, 1887, 25, printed pp. pub lished in pamphlet. If the technically chargeable knowledge case, as well evidence eatab- justice, appearing v. 462 EAILEOAD EAILEOADS. court, should lished- the defendant allowed required practice reopened to make formal fact. Canaan proof Derush, 212, 215; N. H. Wells v. v. 48 N. H. Company, Brewsters, 526; 187; 184, v. 54 N. H. State Page Cashman, 697; 36; Railroad, 62 N. H. Bullard v. N. H. N. H. Chamberlain v. 64 565. Lyndeborough, obtain, in bill to The different equity brought grounds, action, as the same result the real and it much received attention in its It was dismissed preparation argument. court; and it well that the their be inferred defendants may gave case, attention make the unconsciously neglected in this that would have made had been sure preparation they they court, their were to be determined it. The of its own rights motion, considered the leaving advisability open question as a waiver similar was left v. Chamberlain question open Lynde ante, facts, but it law, was denied. The well borough, actions, were to determined the court in both and the parties did not know with the usual what of law or certainty questions fact become material, and could not might well antici especially of waiver importance assumed. The pate question laches, were defendants established of no well on the guilty might rely similar practice for further leaving questions open it, found desirable make no proof of fact presumption adverse them should be made. the fact that the defend Certainly, ants did not -make an does not show non application, of a existence or of the evidence to one. This, prove waiver however, is of as the court will take slight notice importance, facts which are notorious without formal made. proof being claim that the Lowell forfeited the n executing the one to the Maine is of strict to which the legal right, rules of common law conditions apply, are not subsequent —that law, favored to and are to be construed because tend strictly estates, and the to defeat the destroy plaintiff, lease of its own creation, must show a breach within its letter. strictly v. Hoyt Kimball, 322; 49 H. Palmer, 385; N. v. Page 48 H.N. Mc Questen v. 400, 404; 34 N. H. Morgan, v. School Dis Chapin trict, 445, 452; N. H. 35 v. ; Eddy 65 N. H. 27 Company, Osborn, 401; v. Mactier Putnam, 146 Mass. Smith v. 3 Pick. 221; Pursell, v. 193, 200; 66 N. Riggs Y. v. Arnsby Woodward, 519; 6 B. &. 129; C. 4 Kent Reed, Com. Jones v. 68; Case, 15 N. H. 15; 1 Smith’s L. C. Dumpor's Crusoe v. 2 766; Wm. Blackstone Doe Bugby, 226; v. 4 D. & Hogg, R. Silvernail, v. 278;

Jackson 15 Johns. v. Livingston Stickles, 7 253; Hill 81; v. Rosevelt 33 N. Y. Brown, v. Hopkins, Church 258, 265; T., 15 Ves. L. 402, 403; Tay. ss. v. Kinnersley 1 Orpe, Doug. It is an whether important inquiry instrument is question or an one, so far as the agreement railroad is RAILROAD v. 463 of contract in it. This subject-matter question made mainly instruments, In the construction written of intention. one material, and, it, ascertain resort intention parties itself, to the nature of instrument the situation of had it, view, had in and the contem purpose they executing Hood, which it. construction Corwin v. 58 they gave poraneous N. H. 401; 197; Rice v. 56 N. H. Society, Morse v. Bartlett, 391; 511; Morse, H. Brown v. N. 58 N. 58 H. Dris 101, 103; Green, Lancaster, N. 59 H. Kimball v. 60 N. coll v. H. 229; 264; Cobb, Pick. Atwood v. 16 Palmer, Richardson v. 212, 218. N. H. that the this evidence the instrument If proves parties executing the estate of the Lowell in the intended in convey not, it is but if did then a lease proves they presentí, was to make an intention agreement convey, conveyance unless never not to take effect happened something might not occurred at date of and which had occur writ, Houghton such an then it was agreement conveyance. Pattee, 326; T., 37, 38, 39, 42; H. L. & ss. N. Tay. T., 183, latter, ss. 185. The both the law Land & Wood evidence, true seems to be the interpretation, justice the if it will avoid a forfeiture of this construction the requires Lowell’s of the estate, bo without the and it can done intention violating the If the title to Lowell’s estate did not pass legal parties. Maine, no or there was assignment, underletting, parting the and dominion the the with physical possession, Neither an nor Lowell continued unchanged. agreement convey, take effect when the lease to lessor shall give an assignment lease, is in a consent provided writing, or of the covenant assigning parting possession. against violation 511; 504, v. 12 Ves. v. ll Pur Geering, Riggs hera Weat 193, 200. sell, 66 N. Y. is a a instrument lease whether which given On question estate, not, an one which does or agreement conveys material, been of certain evidence has held absence presence should be. instances decisive what If finding in many lease, a the execution of formal if the instrument contemplates done,*or if there is the to be absence of words remains anything term demise, the time fixed or’if commence of present event uncertain, on an which never is being dependent hap a would instrument work a for construing pen, it has the instrument been feiture or render inoperative, usually lease, in not a the last three especially an agreement, adjudged ; 265, 266; Real Com. 105 1 Hill. Wood 4 Kent Prop. instances. 238; Cook, 183, 185; Cobb, v. 4 Conn. Atwoodv. T., Buell Land. & ss. 744; 229; 739, Clare, 2 T. v. R. Goodtitle 227, 16 Pick. Doe Smith, 530; 735; v. 6 East v. 1 Gore v. T. R. Way, Bromfield 462; Ashburner, 163; 5 Roe v. T. R. 12 M. W. Lloyd, 464 RAILROAD v. RAILROADS. 442; Delacroix, 433, Hood, 2 Wend. Bicknell v. 5 M. v. Jackson ; 104; Hunter, 11 Md. Dunk v. 259 v. & W. Howard Carpenter, Jackson, 549, 556; M. v. 6 & W. B. & Al. 322 Rawson 5 Brashier 29; 451; Moncrief, Wend. Eicke, A. & E. 5 7 Jackson v. v. 388, 394; Clark, 424; Jackson v. 3 3 Johns. v. Johns. Meyers, Jackson Towner, Ives, 235; Johns. v. 6 M. & v. 13 Ives Chapman 369; 104; Boston, v. 103 Mass. v. W. McGrath Clayton 41; Burtenshaw, 121; v. 3 C. C. & P. 5 B. & Hartley, Phillips 333; Gillis, v. 24 Wend. v. Gray People Traip, Weld 201; East Rawling, Tempest these are found in the instrument tests executed Many The one indicates and Maine. part language pur- to make an instrument both a lease- parties containing pose covenant, words-used are The and an operative grant, agreement. a used in the first word commonly and ent being making pres- agree, demise, the other two indicate an intention while to make a If the under seal. had intended to parties contract agreement have indicated it lease, would they by using make simply demise, lease, words used in common grant, part instrument, but which one, are entirely granting part the. found, two where the is where omitted part agreement word used. These words are operative word covenant only n used these the intention places, correctly express properly of the parties. instrument, the Lowell’s estate in the In the granting on the railroad is not contrary, conveyed; specially refer therein to the Lowell’s inability parties excepted. convey without violating agreements from the This shows grant. then except the Maine had mind Lowell’s both the Lowell and agree- and did not intend to violate subletting, ments as assigning to the instrument ex- fact that them. The specially railroad in the where its con- granting part, plaintiff’s cepted it, if intended to be found and convey should they veyance fact that second, in a agreement reserved special part they We do not intend to lease are railroad, to plaintiff’s saying, equivalent do to so when it can to an but make agreement lawfully intended to Lowell’s If the parties assign be done. Again: in the did its covenants plaintiff’s in why violation estate and ? The reasonable this make reservation exception only they made instrument did is, when that parties explanation road, in but the Lowell’s estate the plaintiff’s not intend to convey do to so when could. they lawfully to make an agreement of the did they confessedly purpose parties, Such being estate in the it, and forfeit Lowell’s and convey plain- abandon in ? To two have road, in stipulations part tiff’s effect, making must be used no other admitting provisions language

n reasonable This does not On the contrary, construction. .appear. 465 v. demise, with words of not of two begins agreement, present part and refers of the Lowell its estate in convey inability Then follows the road. the lessor provision will use all efforts deliver the as soon reasonable effect, is, which an Lowell to practicable, agreement time, and deliver the the Maine in a reasonable premises convey if the written consent of the can be contin- obtained —a 183; never occur. Wood & T. Land. Buell v. gency might Cook,4 Conn. 238. It is further that the Lowell shall continue in provided, posses- sion, which is not usual in a lease which is intended as a present demise, is be held especially subsequent possession lessor. It is a two should reason not construed good why a part estate, technical of the Lowell’s had conveyance parties one a of the same instrument made lease in part express words, less, two must mean as it

proper why part something varies so in its form has its own natural widely expression, as an which cannot amount to proper meaning agreement, lease without to the violence words as well as the intention doing 135, 165, ; 4 Bac. Abr. 166 dtitle v. parties. Goo Way, 735; Ashburner, 1 T. R. 5 Roe v. T. R. 163. The change one of a demise to that of a language covenant present in the second a like intention of agreement proves part, parties and that a demise was change present in meaning, tended it. The use of such words the former their place, latter, omission in the use, show that the knew their parties proper intentional, that the omission was present demise was not intended. considerations, These taken in connection with the full knowl- that if the edge parties valuable conveyed estate in forfeiture, would work a of which the hostile in the interest of the management Concord Rail- road woidd take are decisive evidence of the advantage, intention not to make a lease parties but one, an merely the fair and agreement con- legal the,instrument. struction 4 Clare, 739, v. 2 741, Doe T. 744; R. 105; Kent Com. ; Hill. Real 266 4 Prop. Bac. Abr. Jackson v. 3 Johns. It is 394. Meyers, improbable like the Lowell and the Maine entered into a bargain which contained stipulations disadvan- 'plainly clearly both, tage this instrument be read in the of this light 507, 512; v. N. Woodman H. improbability. Gard- Spencer, Webster, ner 64 N. H. When the came to second not parties had made a con- they part but in veyance, terms had said would do so in express they violation of Then, view, law. with this intention in expressed they made the in both the second agreement that the part, knowing VOL. LXV. it had to its estate till lawful had not the right convey Lowell In this situation the consent. parties agreed, the obtained required to the use reasonable efforts obtain that it right would the Lowell estate, do so within a reasonable time and if it could to convey the it, and the Maine' accept conveyance. agreed would convey made the in second. It is parties part the This is agreement one; make and it does not Lowell can if the lawfully for a n or words a demise of indicating purpose words present

contain of the to adhere to their one, shows parties but design make to make till intention not one could expressed previously done. lawfully in what further on second make true that parties It is part ” “ as to the a meanwhile called arrangement management bemay the reasonable time which the road during of plaintiff’s of that the the consent Lowell to obtain has it is that claimed In temporary arrangement convey. may language servant, master that creates the relation of used the Lowell had conveyed presupposes which technically a It not worked forfeiture. the Maine thereby being estate claimed, used, demise are nor however, that words present unless the Lowell’s estate used would convey the words should, remains, What the essential still inquiry intended Is parties intending intention? probable was in the of the Lowell’s estate a lease to make instrument, in the part granting excepted expressly for a lease harmony an agreement agreeing made with the Lowell could intention to do so when their expressed ” one, still, in “meanwhile arrange- this temporary lawfully.make ment, the Lowell’s make a conveyance complete intentionally hundred in one eighty- term ninety-six years unexpired dollars, aby of millions value miles railway five technical, legal principles governing unnatural application ? not seem and servant It does possible. of master relation straightfor- instrument are intelligent, The parties making Their intention had been clearly expressed men. business ward estate, but Lowell’s instrument not convey ” “ so; the meanwhile arrange- do make an agreement time the reasonable to exist only during ment temporary, to obtain the under the Lowell had agreement the Lowell ownership retaining to an assent assignment, The estate the interval. during and possession a railways in so public the Lowell system important technical inter- conveyed is not lease, claimed the Lowell’s agreement pretation on a contingency when such conveyance depends the plaintiff, forfeiture, occurred, and is contrary works which has never is it an nor assignment intention of parties; same forfeits the Lowell’s estate RAILROAD v. RAILROADS. 467 under the common-law rules of strict construction of condi Kimball, tions v. 49 N. H. subsequent. Hoyt If two is construed a part susceptible being conveyance the class roads and within its property coming provisions, arises, When was it to take effect? inquiry clearly once, was not to do so intended at but when the property could bo delivered. The evidence on this lawfully point so clear as to leave little doubt toas the conclusion. If two part roads and to take conveyed effect at property, did, the same time the made in one what conveyance part of the in object two? If it was all parties making part delivered, be and become the of the conveyed, property the same time and the same did the delivery, why par ties it in one and refer to as not except part being assign able or transferable without violation law or agreement, “ did the in two that the lessor why that, parties part say covenants if it be found to at onCe deliver the impracticable imme diate leased or it at any operated by lease, of this inception reason of to the con agreement reason, other it will use all trary reasonable efforts to deliver and will deliver thereof as soon as The practicable”? knew parties assignment could not take effect before the Lowell obtained the plaintiff’s lease, consent without forfeiting there fore if the had not they agreed, obtained the required consent at the of the beginning operation part two should not take effect at time one did a deliv part it, ery and the property conveyed delivery described in two should.be for such part postponed a reasonable time as would enable the Lowell the use of all effort reasonable obtain the consent. In necessary words, the was, agreement part two should not take effect at inception, beginning, fee M’Cullum, the lease v. (Marvin Johns. 288, 289, Shaw, Eastman v. 65 N. Y. but 528), should be post to time poned a when it could be done. lawfully The one that roads come within exception part provisions two, and the as to part special arrangement their instrument; made them and in delivery, its part con- considered, struction all its must be and each parts given due the intention of the weight If determining parties. so, had not intended this to parties to their purpose was the Lowell’s leased roads and those convey operated by without to their or transferable, regard then being assignable one, made would have and would part exception have omitted claimed, two construction part altogether. two makes of all the conveyance roads part present effect at within to take time coming when provisions, delivered, renders the exception one roads might part as the same result would two useless verbiage, aimless and both the omitting exception by have been accomplished con- was described in both' two; parts and if the property part veyed, at the in the second to be delivered- it not why first, was the and it was unless agreed in the time as same as well as of the parties, agreed and understanding intention law- till the Lowell could effect should not take two’ that part ? the deliver property fully (cid:127) 11, lease, to October and the prior execution After rent received money and the Lowell paid sum of times, in all to the four different amounting its at 30, To 1887- $114,500, last being’ September payment from the execution arising meet the legal presumption its on the took effect lease, day was delivered and that it which would the forfeiture execution, avoid waiver and to Lowell incurred," a fact that is claimed as be thereby lease, not contained made some arrangement and till there was not to effect physical 11, which was take and October which took place delivery that property, became time, when it not take till the lease did effect be sought parts. arrangement operative, con- and action found in the is contemporaneous established struction it, date from to the lease and the given circum- made, and then to October delivery an arrange- it. tend to While these prove stances attending may waiver, a doubt confirm ment avoid beyond may to take lease, not two was the interpretation part lawfully be could the roads within its till coming* effect provisions should be delivered. actually 24, 1887, the direc- two after the date of the June days : vote, was recorded tors of the Maine passed following “ Lowell & under the lease to this the Boston That company by in- authorized Railroad Corporation, president hereby structed, for and in behalf of this to receive possession company, stated) railroad and hereinafter of the demised property (exceptas manner and such times as be may agreed of said Boston & directors Lowell Railroad Corporation; Lowell said Boston & Railroad can lawfully until Corporation violation of surrender this pos- without company agreement held and now the roads and session occupation property & Nashua it under leases and contracts' with possessed Lowell Railroad Railroad the Central Massachusetts Corporation, Com- Boston, and the Concord & Railroad Montreal Company, said Boston Lowell Railroad Corporation respectively, pany, to hold continue the roads and shall properties possess only but ma- of said several also such companies, equipment, supplies, terials, to enable property may required oper- roads said leased and to law and conform- ate operated according of said leases contracts.” The ably obligations within the two. road was June provisions “ directors vote: recorded the That passed following under the lease road, this the Boston & Maine Rail- corporation executed, when authorized and in- hereby president structed, on behalf of this deliver posses- corporation, sion of demised railroad and as hereinafter (except property and at such time as such manner stated) agreed upon Railroad; directors said Boston & Maine and that with until this can and without violation corporation lawfully agree- surrender to Boston & ment said Maine Railroad of the roads and now held and occupation possessed under leases and contracts with the Nashua & Lowell Railroad the Central Massachusetts Railroad Corporation, Boston, the Concord & Montreal Railroad Company, Company, Railroad the Brook and the Wilton Railroad Stony Corporation, this shall continue hold and Company, corporation respectively, the roads and of said several possess but also such only properties companies, materials, and other equipment, supplies, property as roads enable it to said leased and may required operate operated law, and to the according said conformably obligations contracts, leases or shall and continue to said leased operate rail- roads to the terms of the according said several leases.” 1887, 28, the & Boston Maine directors September voted and recorded the the “That is following: authorized president hereby instructed, in the name and and behalf of this corporation, soon he hereafter as deem it to take and receive expedient, of which this possession premises property" entitled under the terms and present possession, provi- the sions lease of Boston & Lowell Railroad Corporation 1887, 11, this dated June 1887.” October the company, presi- of the Lowell delivered to dent the of the Maine president the one, roads and and did not deliver the property conveyed part two, then roads tiff’s road and within of which provisions part plain- were a executed property part. de- receipt is,— livered at the time Station, B. & L. R. “Passenger R. Corporation. “ Street, Boston, Causeway October “ On the named, above day place Boston & Lowell Railroad delivered, its Corporation, Edwin president, through Morey, Railroad, and the Boston & Maine through presi- dent, Lord, received, C. George possession premises of which said Boston property was & Maine Railroad to, then entitled under the terms and of a lease provisions said Boston & Lowell Railroad to said Corporation Boston & Railroad, 22, 1887, dated June the roads and property RAILROAD RAILROADS. received, day delivered and all the being which possession covered and described said lease of June railroads property 22, 1887, held and roads and except property possessed by under leases and contracts & Lowell Railroad Boston Corporation Montreal, Wilton, Boston, with the Concord Stony and such mate- Brook railroad corporations, equipments, supplies, rials, to enable said Boston property may required roads, said last named &(cid:127) Lowell Railroad operate Corporation therewith. contracts respective pursuant “Edwin Morey,

[Signed] R¡ B. & L. “President R. Corp.' “ Lord, C. George B. & “President M. Corp.” Lord and Edwin C. presi- Morey, The evidence George made and received dents who delivery of the corporations, is, substance, that the not and executed receipt, two were then within roads were provisions part one, those which delivered, Montreal which the delivered; one were were did within provisions to receive the de- Maine was entitled that the not understand lease, road under livery of law it without violation agreement, deliver Lowell could the other them when understood October and that was delivered, to continue in the Lowell was roads posses- were it under sion the Montreal and operate and that this under- to do with it had that- the’Maine nothing the the Lowell’s executed by operating was practically standing road 11, it the same as did be- after October its own direction on made in the operation was no change fore that there delivery on which was to road, because the contingency of the occurred, remained in same and the road the had not delivered be legal as it.did before condition as to plaintiff physical October delivered one were formally in part The roads conveyed then to them it had effect 11, took and the lease October The road. this did not affect before,' not but different. The that was entirely contract with reference delivered, to be was conditions upon agreement effect, this, different in were to take when it was and the time be delivered the roads could lawfully first part that while not could without in the second they once without at prejudice, the Lowell doing great lease forfeiting difference in This entire railroad to its system. injury in in the different roads Lowell right property second, made parties part was the why reason its system of roads within to the class coming the lease as and agreed till could not effect they lawfully should take its provisions RAILROAD v. RAILROADS. delivered, the lease could take effect time the although in one. name as to the roads conveyed part might parties the consent October might obtained, its lease had not been and its roads and assign prop- could not were still ih a condition that be delivered they erty forfeiture, effect without a and have lease take and they delivered, not and the Lowell’s lease did not take were effect them, and the was not forfeited. as to The taking one, effect in delivery part property conveyed two, it, affect did not because under each part agreement part to take effect on the was it. in delivery property conveyed If the been two had written executed parts separately instruments, now, as two but otherwise same as no doubt effect; exist as to when and how would take would the intention of the be each would parties being single plain, signing sufficient, and the effect lease would take as to the property delivered, in one it was and as when conveyed part property two, when within a time reasonable thereafter the part right was to deliver it and a could acquired made. delivery actually was the This construction which the contemporaneous delivered, to the instrument. October gave which They property could be delivered on that lawfully day, expressly which came within the excepted provisions property part two that could not The they deliver. lease as to lawfully part execution, or, either two of to take effect agreement when the described it could parties, property should be If it took effect delivered. ever as to that lawfully execution, delivered, it was on its as the was not part, not and could have been before the date of lawfully the plain- ” “ tiff’s be claimed that the meanwhile arrange- writ.^ till ment there could be a provided delivery, of master which created relation and servant. The reply is, to this that no two took effect provision till all part did; it did not take effect All the were piecemeal. provisions on the to take effect before. delivery property, “ in their settlement October parties, under the to to to hold” one, have and mean, construed arrangement part ” “ substance, as the meanwhile two arrangement reads, Maine’s rentals, taking earnings, paying all liabilities incurred operating expenses, from providing against 1. In the view the Maine was the mas- April plaintiff’s 11, or the ter all from date of lease October principal receiving all the earnings, responsible operating 'expenses, claims, liabilities, and the Lowell was its servant operating Maine, the roads of one and to part receiving receive not what the roads earned for but the rental compensation, pro- lease, for in vided and the of those roads running for the Maine Lowell was settled and in this adjusted way RAILROAD v. [Merrimack. 20, 19, Case, 32. After Book Tuts. 11. October pp. view, it tbe till October plaintiff’s of tbe lease taking date was immaterial Lowell, it whether to tbe paid expenses not, it receive for to the sum was doing as existed between the same relation In legal work. principle, claimed is and the Maine period Lowell during October 11 the Lowell after the Maine and existed between as to because it is said road: still unimportant effect, take effect taken was had not the lease same before. The equally pertinent, and not reply delivery to the relations between claims made as answer to the and an had been 11. There and the Lowell after October the no effect two, not it was to take the roads part delivery relations,, both in law same till was made. The a delivery Maine, and the fact, exist between continued to writ, from the existed date 11 to the date of October from roads and as the till October So far of the lease concerned, had made. The con- no been were change property clusion then it execution, is, not effect on if the lease did take one on its effect as conveyed part took property two, 11; stated contingency October delivery occurred, within not coming the lease having it, delivered, as to had not and the provisions writ. effect at the date taken reasons, total well as for want of For these equity case, am I unable assent opinion the court. majority JJ., concur in the Blodgett, dissenting foregoing Allen opinion. notes tbe Nashua Lowell Railroad given corpo- including payable, ration funded, but the can be so not its current debts or same open lessor, If, the of directors with assent the- of the or accounts. after a commissioners the same are decision hereof, as in Article the VII lessee provided necessary shall propel’, make additions or the improvements upon permanent the shall issue stock or bonds to an lessor also premises, demised amount meet In all sufficient to the cost thereof. the cases herein for which stock or bonds is or are to issued be provided securities, or lessor, the lessor shall issue both either class of as so far as only but case each may the lessee request, may however, if the lessor shall require do so: provided, legally class it to either of issue to enable additional authority legislative shall, lessee, lessor at securities, request desired as lessee, do all acts and necessary pro- things and expense cure such authority. issued, after so as herein Stock provided, issue, lease, time of such be shall, from the of this the inception stock, within the of lessor’s provisions capital deemed part issued, herein this lease. Bonds so as pro- 8 Article I of clause lease, this be shall scheduled vided, after the inception indebtedness, under the lessor’s interest thereon paid I indebtedness 2 of hereof. The to clause Article and pursuant scheduled, lessor, shall the lessor be renewed said aid whole, matures; or same of the lessee as the any part shall, lessee, thereof, at and under direction of the request be at at such time times as be refunded practicable, benefits from reduced rate of interest rates lowest practicable, such renewal of interest upon consequent refunding of its the lessor oí leased indebtedness operated lessee. The of such lines to enure term renewal shall not term of this lease without the consent of extend beyond lessor. of the lessor for the V. Leases and contracts term of this lease shall railroads be during terminating lessor, under the direction and with renewed the the assent of lessee, most terms favorable But the upon practicable. not be bound to assent to said lessee shall the renewal lease or contract at a rental rental exceeding the the payable of this unless the lessor to inception application by commissioners said renewal board of railroad shall be decided to to the reasonable interests necessary protection so shall lessor. Leases and contracts renewed to all the subject lease as as if now effectually herein provisions existing

Case Details

Case Name: Boston, Concord & Montreal Railroad v. Boston & Lowell Railroad

Court Name: Supreme Court of New Hampshire

Date Published: Dec 5, 1888

Citation: 23 A. 529

Court Abbreviation: N.H.