ARTICLE 1-BEFORE CONSTRUCTION.

3885. How to form corporation. All that is required in the way of a description of the line, in the articles of incorporation, is to give the names of the places from which and to which the proposed route is to be constructed and each county in to which it is intended to pass and its length, so nearly as may be; Board etc. v. Center Tp, 107–441.

2. In a direct proceeding, in the nature of quo warranto, by the state, against individuals who assume to act as a rail road corporation, requiring them to show cause for so acting, a showing by defendant of the filing of the articles of association and a subscription of the minimum amount of stock required by law is not conclusive on the state. Where it is established, by evidence, that the subscribers to a large portion of the fifty thousand dollars of stock are insolvent and were so at the time they subscribed, with no expectation of ability to pay, a forfeiture will be declared; Holman v. State, 105-572.

3886. Articles, where filed - Effect-Evidence. In filing articles it is the act of depositing them in the office of the secretary of state-not the mere filing mark thereon that constitutes the filing. The fact that the secretary unlawfully antedated them is not ground for an information quo warranto; State v. Foulkes, 94– 496.

3887. Subscription books. Under this statute, the subscriptions to stock must be made, bona fide, by persons who have a reasonable expectation of ability to pay; Holman c. State, 105-571.

3896. Calls. This section becomes, in effect, part of the contract between the corporation and the stockholder. No notice or demand for the payment of an assessment is necessary, except where forfeiture of the stock is sought to be enforced; Hill . Nisbett, 100-356.

3897. By laws. In a strictly legal sense the board of directors is the agent and representative of the company. In a practical sense, it becomes the corporation itself; L. E. & St. L. R'y Co. v. M'Vay, 98-393.

3902. Map and profile. That a rail road has been permanently located is shown by the map and profile properly filed with proof of actual construction according thereto; Caffyn e. State, 91-329.

3903. General powers. A rail road company has a right to appropriate so much land as is fairly necessary for its purposes. The company is the judge of the necessity (see sects. 3907, 3997); Swinney v. F. W. etc. Co., 59-205.

2. An entry upon land, by a rail road company, for the purpose of making a survey for a right of way is not an actionable wrong; Burrow . T. Haute etc. Co., 107434.

3. This section, conferring on rail road companies power to cross highways without compensation, has reference to ordinary highways controlled by public authorities and maintained by taxation. It does not embrace a highway used for gravel road purposes by a private corporation, under a grant from a board of county commissioners; Ind'polis etc. Co. v. Belt. R'y Co., 110-12.

4. It is the duty of a rail road company to construct its road, where it intersects

with any public highway, in such manner as to afford security for life and property. This is so whether the highway be laid out before or after the construction of the railroad.—L'sville, etc. Co. v. Smith, 91-121.

5. The fifth subdivision of this section, which confers on a railroad company the right to construct its track across a public highway, imposes on it the duty of restoring the highway to is former state so nearly as possible. A failure to observe this statutory duty is actionable negligence in respect to any person who sustains injury thereby without his fault. While the highway can not be restored, in all respects, to its former condition, it must be so far restored as not to impair its usefulness more than the additional use of it for railroad purposes renders absolutely necessary. Wherefore, a railroad company having left its track nine inches above the surface of the highway, it is liable for the value of a horse, the death of which was caused by extraordinary exertion in pulling a loaded wagon over the obstruction. The fact that the owner of the animal had knowledge of the condition of the crossing, and the further fact that he did not lighten his load when he met the obstruction, it was held, do not per se constitute such contributory negligence as should bar recovery.-E. & T. H. R. R. Co. v Carvener, 113-52.

Under the fifth subdivision of this section a railroad company is fully authorized to build, construct and maintain its track over and across a public highway and to operate its line of road by running locomotives and trains of cars thereon. It becomes, however, the company's duty to restore such highway to its former state or in a sufficient manner not to unnecessarily impair its usefulness. For the non performance of this duty the general laws of the state for the incorporation of railroad companies provide no penalty and prescribe no remedy. It has been held, however, by the supreme court, that the performance of such duty by a railroad company may be compelled by mandate.-Cummins v. E. & T. H. R. R. Co., 115-419..

This statute prescribes a plain duty. The right to interfere with a highway is coupled with the duty to make it as safe as it was before it was disturbed, or at least, to use reasonable care and skill to do so. This duty is violated if there is a failure to restore it to its former condition, in all cases where the exercise

of reasonable care and skill can effect a restoration. A railroad company having been permitted to lay its track along or across a highway, it is bound to the use of every reasonable precaution to prevent injury to those passing along or across such highway or crossing its track that is laid along or across the highway if it fails to exercise a proper degree of care not only such as is provided by statute but, also, such as is rendered necessary by the character of the obstruction and its location, having reference to a like reasonable exercise of care on the part of those approaching the obstruction-it becomes a nuisance to the extent of its injury to individual rights and renders the company liable in damages for all the consequences.-E. & T. H. R. R. Co. v. Crist, 116-453.

In a proceeding by one railroad company to condemn and appropriate a right of way across the tracks of another company, under clauses 5 and 6 hereof, the complaint or instrument of appropriation set forth the effort to reach an agreement thus: "having located the line and route of its said proposed extension of road over the lands and premises hereinafter described, and having attempted and failed and being unable to agree with respondent in regard to the terms of, or in regard to the compensation therefor," the plaintiff did take and appropriate said way. (a) The effort to agree must be made on the points of (1) compensation, (2) points of crossing, and (3) manner of crossing and connections. Such effort is a condition precedent to the exercise of the power to appropriate. (b) The instrument of appropriation must affirmatively show the agreement, or failure to agree on each of these three points and, therefore, in this case was insufficient. (c) The word "terms," as used in the instrument of appropriation, is not broad enough to cover the three essential points, (d) There may be a waiver of an agreement or of an effort to agree, but such waiver should be distinctly averred. (e) An appeal is not a waiver of any objection reasonably and appropriately made.-L. S. & M. S. Ry. Co. v. C., W. & M. Ry. Co., 116-580.

3994. Foreign roads. 1. Any railroad company incorporated by special charter under the laws of the States of Ohio or Illinois, or under any general law of either State, with its terminus at the boundary of either State, may continue its road into this State, so far as may be necessary to form a connection with any road already built in this State; and may, for such purpose, purchase and hold such real estate as is necessary for depot buildings, machine shops, stock yards, tracks, crossings and sidings.

3995. Bridge on State line-Joint use. 2. Whenever railroads have been chartered by the joint action of the Legislatures of Illinois and Indiana or Ohio and Indiana, or whenever separate charters have been granted by each State, and a railroad has been built under separate company organizations and operated through one or more of said States, and when the line dividing the State of Indiana from either of said States is a water-course which has been bridged at the joint expense of two of such separate railroad company organizations, the company desiring to extend its line into this State shall have the right to maintain and use such bridge, so far as may be convenient and necessary and so as not to interfere with the necessary joint use thereof by the companies owning the same, in the transaction of their ordinary joint business, and may extend its track upon and across such joint bridge, from the Indiana shore of said stream, so far into the State of Indiana as may be necessary to form a perfect connection with other roads by means of tracks, side tracks, crossings and sidings; and, so far as may be necessary for the accommodation of the business of such corporation, it may procure grounds and erect depot buildings, machine shops, and such other buildings within this State, provided that the distance from the State line to such connection or crossing, as proposed, shall not exceed three miles.

3996. Right of way. 3. The president and directors of such railroad company so extending its line of road into the State of Indiana, or any person authorized by them thereto, may obtain from any person or persons through whose lands the proposed extension of their said road passes, a relinquishment of so much land as may be necessary for the purpose of said extension or as may be convenient and proper therefor.

3997. Appropriation of lands. 4. In all cases when any person or persons through whose lands the proposed extension of any such road may run shall refuse to relinquish the same, or when a contract between the parties can not be made for the right of way and necessary ground for switches, side tracks, and depot grounds, it shall be lawful for the corporation to give notice to some Justice of the Peace in the township where the difficulty may occur, that such facts do exist; and such Justice of the Peace shall, thereupon, summon the owner or owners of such lands to appear before him on a particular day, within ten days thereafter, and shall appoint six disinterested freeholders of the neighborhood, who shall, after taking an oath faithfully and impartially to assess the damages, if any, view the land and report thereon how much damage such person or persons may be entitled to, and file such report with such Justice; whereupon such Justice shall enter judgment thereon, unless for good cause then shown; and in case either party show sufficient cause why judgment should not be entered, the Justice may grant a review, with or without costs: Provided, That either party may appeal to the Circuit Court of the proper county as in other cases, and such Court shall appoint viewers as above directed, who may report, at that or any subsequent term, in the discretion of the Court, and the judgment of the Circuit Court shall be final. And in all cases where the owner or owners of such land shall be minors or insane persons, or reside out of the county where such lands lie, such Justice shall cause three notices of the appointment of viewers to be posted up in three of the most public places in the township where such lands lie; and if no person shall attend on the day of such notice, the said Justice shall adjourn the same to that day two weeks, at which time he shall proceed as if such person or persons had been personally notified to attend; and on such judgment being rendered, and said corporation complying therewith, by the payment of the damages assessed and costs, the said corporation shall be seized in fee simple of the lands for the sole use of the corporation.

3998. Fee simple in way. When such corporation shall have procured the right of way, it shall be seized in fee simple of the lands, and shall have the sole use and occupation of the same for the purposes aforesaid; and no person, or body politic or corporate, shall, in any way, interfere therewith, molest, disturb, or injure any of the rights and privileges hereby granted, or that would be calculated to detract from or affect the property of the said corporation.

[1885 S., p. 148. In force April 8, 1885.]

3998a. Farm crossings. 1. That owners of tracts of land separated

by the right of way of a railway company, or owner of a tract or tracts of land separated by the right of way of a railway company from a public highway or road, lying and situated immediately contiguous to and adjoining said right of way may, if such right of way has been or shall hereafter be acquired by condemnation and appropriation, or by purchase or donation, construct and maintain wagon and driveways over and across such right of way leading from one of such tracts to another on the opposite side of such right of way, or leading from such tract or tracts of land on one side to the highway on the other side of the right of way, at any point most convenient to such owner. For this purpose such owner may enter upon such right of way and construct such embankment or make such excavation on one or both sides of the track of such railway as may be necessary to establish ensy grades from one tract of land to the opposite tract or highway, and may spike planks on the ties of such railway on the line of such way for the space of the width of such way, of such thickness as not to be elevated above the top of the rails of such railway, and may also bridge the gutters at the sides of such railway track in such manner as not to obstruct the flow of water therein: Provided, The railroad company shall make the crossing. [As amended, 1899 S., p. 485. Approved March 6, 1899.

3998b. Gates in fence. 2. When such railroad is fenced on one or both sides at the point where such way is constructed such owner shall erect and maintain substantial gates in the line of such fence or fences across such way, and keep the same securely locked, when not in use by himself or employes.

3998c. Animals killed or injured-Liability. If animals are killed or injured on the track of such railroad by the cars or locomotives thereof, the company owning or operating such railroad shall not be liable to pay damages therefor if such animal entered upon the track of such railroad through such gates, unless it shall be proved that such killing or injury was caused by the negligence of the servants of the company owning or operating such railroad.

[1873, p. 186. In force March 10, 1873.]

3999. Connecting contracts. 1. All railroad companies now organ

ized or that may be hereafter organized under the laws of this State, having connect

ing roads, may enter into contracts, by their respective boards of directors, by which the locomotives and trains of one railroad company, for the transportation of freight and passengers, may be run and operated over and upon the track and road of another railroad company, upon such terms as the said companies may agree upon.

1. One company may aid in building another's road with a view to the subsequent use of its track under this section.-A. & C. R. R. Co. v. Lawrenceburg, 56 Ind. 80. 2. A railroad company has no authority to lease or dispose of a portion of its road, so as to exclude itself from all use and control thereof, for a period practically without end. Board v. L. M. & B. R. R. Co., 50 Ind. 85.

4000. Contracts ratified. 2. All contracts heretofore made in good faith between railroad companies organized under the laws of this State, acting by their respective boards of directors, by which the locomotives and trains of one railroad company, for the transportation of freight and passengers, are to be run and operated over the track and road of another railroad company, are hereby ratified and made legal.

4001. Liability to third persons. 3. Every railroad company that shall run and operate its locomotives and trains upon the track and road of another railroad company shall be liable to third persons for all damages occasioned by such locomotives and trains, in the same manner and to the same extent as though the track and road upon which such locomotives and trains were run and operated belonged to the company owning and operating the same.

[1865 S., p. 115. In force April 13, 1866.]

4002. Of branch. 1. Whenever any railroad company, incorporated,

organized and existing under any act or charter granted by the General Assembly of the State of Indiana prior to the taking effect of the present Constitution, which shall have been authorized by such charter, or any amendments thereto, to construct any branch road to their main route, and shall have procured the right of way for such branch road or any part thereof, and proceeded to cut out and grade the same or any part thereof, but shall have ceased work upon the same, for a period of ten consecutive years prior to the first day of the present session of the General Assembly, without having completed any part thereof, such right of way to such branch route and to every part thereof shall be, and the same is hereby declared to be forever, forfeited and lost by said company, as well as all work done and labor and material furnished by said company toward the grading of the same; and the said right of way, and each and every part thereof, shall re-invest in the owners of the soil over which the said branch road may have been laid out, in the same manner and relation as before it was granted to said company.

[1861 S., p. 74. In force September 7, 1861.]

4003. Time for completion. 1. Any railroad company heretofore organized under and pursuant to an act entitled "An act to provide for the incorporation of railroad companies," approved May 11, 1852, which, within three years after its incorporation, shall have begun the construction in good faith upon the roadbed of its road, and shall have actually expended thereon four hundred thousand dollars in the construction thereof, exclusive of expenses for pay of officers, right of way, engineering, and other incidental expenses, shall have ten years from and after the thirtieth day of December, 1861, to complete the same; and if said road shall not then be completed, the corporate powers of such company shall cease and its act of incorporation shall become void: Always Provided, That this act shall not extend to any corporation whose charter shall have been declared forfeited, or against which a final judgment of ouster shall have been entered.

[1863, p. 15. In force February 18, 1863.]

4004. Time for completion. 1. Any railroad company legally organ