road of Alabama, or from some point on the Alabama Great Southern Railroad, or from some point on the Memphis & Charleston Railroad and running into and through the county of Fayette or the county of Walker, state of Alabama, or both;" bound them to begin the work of surveying, building, or grading such railroad within four months from the date of the instrument, and to extend it to the county of Fayette or the county of Walker, or both, "within three years from this date;" and it further recited, as the consideration moving to Gaines and wife, the advantages and benefits supposed to accrue to them in the future from the building of the contemplated railroad; and contained another clause, in these words: "It is further especially and expressly understood that no such deeds to the coal and iron we own shall be made to the parties named in this instrument, unless they shall build the railroad as specified in this instrument; nor, on the other hand, shall the parties who now propose to build this railroad be liable for any damages should they fail to build the same." The original bill alleged that " said Colquit et al., in strict pursuance of the terms and stipulations of said agreement on their part, within less than four months from said 19th day of August, 1880, did begin, or cause to begin, the work of surveying, building, or grading said railroad, and did also, within three years from said date, extend said railroad, under the name of the Georgia Pacific Railway,' from Columbus, Miss., on the Tombigbee river, so as to reach said Walker county, Ala.; and said railroad was completed, equipped, and operated from said city of Columbus into said county of Walker, by said Colquit et al., and their successors, before the expiration of three years from the date of said contract, and has continuously, since its completion, and is now, in constant and running condition." It was alleged, also, that on the 4th day of May, 1882, Colquit and his associates sold and transferred said written contract, with all rights accruing under it, for valuable consideration, to the Richmond & Danville Extension Company, a corporation chartered under the laws of Mississippi; and that said last corporation, on 20th December, 1883, sold and transferred it for valuable consideration to complainant. An amendment of the bill was added April 6, 1887, alleging that "said contract was so acquired by complainant as property taken by it for subscription to the capital stock of said Georgia Pacific Railway Company by said R. & D. Extension Company;" and a further amendment, October 20, 1887, alleging that complainant "had the authority and power, under the laws of Alabama, to acquire said covenant as aforesaid, and now has the authority and power to hold and own the same, and the real es

tate therein described." A copy of the complainant's charter, as it was called, was made an exhibit to the original bill, being the proceeding which showed its formation by the "consol idation of the Georgia Pacific Railroad Company, of Georgia, the Georgia Pacific Railroad, of Alabama, the Elyton & Aberdeen Railroad Company, the Columbus, Fayette & Decatur Railroad Company, and the Greenville, Columbus & Birmingham Railroad Company;" the agreement of the consolidation reciting that it was proposed "to form a new consolidated company, for the purpose of constructing, owning, and operating a continuous line of railroad from Atlanta, in the state of Georgia, through the states of Alabama and Mississippi, to some point on the Mississippi river." On the 26th April, 1888, a further amendment of the bill was made, which stated the incorporation of three of the Alabama companies above named -namely, the Elyton & Aberdeen Railroad Company, the Columbus, Fayette & Decatur Railroad Company, and the Georgia Pacific Railroad Company-referring to the Session Acts, where the charters were set out in full; and the amendment added: "Your orator further avers that said three railroad companies, chartered as aforesaid, contemplated the building of three several railroads under their respective charters, as indicated in said incorporation proceedings, whose lines, when completed, would have admitted the passage of burden or passenger cars over their said contemplated roads continuously, without break or interruption, from the city of Birmingham or Elyton, in Jefferson county, Ala., at a point on the Alabama Great Southern Railroad, where the same crosses the Louisville & Nashville (formerly known as the South & North Alabama) Railroad, to Columbus, on the Tombigbee river, in Mississippi." The several acts incorporating these companies, and other facts connected with their organization, are stated in the opinion of the court in the case of Wilks v. Georgia Pac. R. Ĉo., 79 Ala. 180; Georgia Pac. R. Co. v. Wilks, 86 Ala. 478, 38 Am. & Eng. R. Cas. 665-and it is not necessary to repeat them here.

On final hearing, on pleadings and proof, the chancellor dismissed the bill, and his decree is here assigned as error. The record does not show when the cause was submitted, except by inference; the note of testimony being dated October 25, 1888, and the decree, which is dated November 22d, reciting that "this cause, coming on to be heard, was submitted for decree in vacation on pleadings and proof." McQuire & Collier, for appellant.

Hewitt, Walker & Porter, for appellee.

SOMERVILLE, J.-The main principle of law which is to

Geo. Pac. K.
Co. v Wilks

followed.

govern this case is fully discussed and settled in the case of Georgia Pac. R. Co. v. Wilks, 38 Am. & Eng. R. Cas. 665, 86 Ala. 478. We had held on a former appeal that a railroad corporation cannot, without an express grant of power, acquire or recover an interest in lands, unless it is made to appear that such property is necessary or proper for carrying out the purposes for which the corporation was organized. Wilks v. Georgia Pac. R. Co., 79 Ala. 180. On the last appeal (86 Ala. 478, 38 Am. & Eng. R. Cas. 665, supra) we decided that the appellant corporation might legally assert the right claimed to the land in controversy as the corporate successor of the Elyton & Aberdeen Railroad Company-one of the several roads consolidated under the name of the "Georgia Pacific Railroad Company"-provided the case should be brought within the terms of section 1583 of the present Code of Alabama (1886), which constituted section 2008 of the Code of 1876. The Elyton & Aberdeen road had the power to acquire, by purchase or gift, lands in the vicinity of said road, or through which its route passed, such as may be granted to aid in the construction of said road." The lands in controversy are alleged to belong to that class. It is not, however, every consolidation of railroads that will confer on the new corporation in which the old ones are merged the sum of their chartered powers. The statute provides on this subject as follows: Whenever the lines of any two or more railroads, or contemplated railroads, chartered under the laws of this or any other state, which, when . completed, may admit the passage of burden or passenger cars over any two or more of such roads continuously, without break or interruption, such companies are authorized, before or after completion, to consolidate themselves into a single corporation;" and the prescribed mode of consolidation is fully set out in the statute. Code 1886, § 1583. It is only where the consolidated companies are shown to be of the class specified, and the provisions of the statute as to such merger are substantially complied with, that the new corporation is authorized to "possess all the powers, rights, and franchises" of its corporate predecessors merged in it. Section 1583: Geo. Pac. R. Co. v. Wilks, 86 Ala. 478, 38 Am. & Eng. R. Cas. 665.

Powers of consolidated companies.

The amendment of the bill, so far as its mere allegations are concerned, perhaps brings this case within the statute. But there is no proof to sustain these allegations. We cannot know judicially that the original roads, if completed according to their charters, would have been so located as to" admit the passage of burden or pas

Judical notice.

senger cars" from the one to the other "continuously, without break, or interruption." Some evidence is necessary to enlighten the mind of the court on this subject. There is a growing disposition, it is true, for the courts to extend the area of judicial knowledge, so as to keep proper pace with the rapid advance of art, science, and general knowledge. But there is a prudent limitation to be put upon this principle, so as to confine it to matters of a general and public nature, or such as do not concern individuals or local communities. The facts must be of such age or duration as to have become established as a part of the common knowledge of well informed persons, at least. The failure of proof on this point authorized the dismissal of the bill aside from other questions raised.

missal in va

The case was submitted in term time on pleadings and proof, and the chancellor had full authority to decide it in vacation by final decree on the merits; either party aggrieved having the power to apply to the chan- Decree of discellor for a rehearing by the second day of the cation. next ensuing term of his court following the vacation. Rule of Practice No. 80 (Code 1886, p. 825.) It is not a case where the proof is sufficient and the allegations insufficient, but the reverse. No amendment of the pleadings is needed, and it is too late to correct the deficiency of proof. Hooper v. Strahan, 71 Ala. 75; Gilmer v. Morris, 80 Ala. 78, 88; Gilmer v. Wallace, 75 Ala. 220.

The decree of the chancellor is free from error, and must be affirmed.

Power of Consolidated Railroad Companies to Acquire Land.-In Michigan it has been held that the power of a railroad company to begin proceedings for the condemnation of lands within the state is not lost by its consolidation with another railroad company into a new organization so as to constitute a corporation subject to the laws of the same state as the original company. Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456, 5 Am. & Eng. R. Cas. 378, note 388. And in Minnesota it is immaterial in condemnation proceedings whether an alleged consolidation agreement is valid or not where the petition on proceedings was warranted by the provisions of the charter. Minneapolis, etc., R. Co. v. St. Paul, etc., R. Co., 36 Minn. 481,30 Am. & Eng. R. Cas. 279. A consolidation of railways which constitutes the consolidated railroad company, the successor to the rights and purposes of the companies consolidated vests in the consolidated company the power to institute proceedings for the condemnation of lands. North Carolina R. Co. v. Carolina Cent. R. Co., 83 N. Car. 489.

Power of Foreign Corporation. In an action to enjoin a railway from laying a side track across the plaintiff's lot, it was alleged that the "defendant was a foreign and non-resident railroad corporation, organized and incorporated under the laws of Illinois," etc., which allegations the defendant, in its answer and supplemental answer, admitted to be true. Held that, under the issue made in the pleadings, the defendant, unless it became a corporation under the laws of the state, was prohibited absolutely by the constitution from acquiring a right of way; and, as it could not acquire the

same directly, it could not do so indirectly through a corporation organized under the laws of the state, and might be enjoined from appropriating the property. Koenig v. Chicago, B. & Q. R. Co. (Oct. 1889), 27 Neb.

And see generally as to exercise of power of eminent domain by foreign corporations, State v. Chicago, etc., R. Co. (Neb.), 36 Am. & Eng. R. Cas. 504, note 510.

Judicial Notice Matters Relating to Railways Which are Known Judicially -Generally.-Judicial notice is the exercise, by courts, of knowledge of facts of uniform natural occurrence, immemorial usage, historical sanction, or general notoriety; and, when admissible, so recognizing and acting upon them without averment or proof. Courts will usually take notice of whatever ought to be generally known or generally ascertainable within the limits of their jurisdiction. Brown v. Piper, 91 U. S. 37. The general principle upon which this class of facts is received, without averment or proof, is that the court knows; and if it is not sufficiently advised, the fact may be ascertained by special enquiry and reference to any authentic means of knowledge. The judges do not assume any private or technical information of the matter, but they simply recognize the fact as being already sufficiently established. When such fact is of universal application it will be judicially noticed, generally; but where its operation is absolute within certain limitations, it will only be recognized within the jurisdiction to which the same extends. Thus impressed with absolute verity, such facts may be embraced in instructions to juries without infringing upon their province of determining issues of facts. While the rules governing the exercise of this peculiar power by the courts are founded in well settled principles of the law, the subjects requiring such determination are so various and diverse in character, it would seem, those rules cannot, in every instance, be made strictly to apply, and the decision must frequently depend upon the particular circumstances in such cases. The admissibility of those classes of facts, which are in their nature official, political, historical, geographical, commercial, judicial, legislative, scientific, and artistic, can be accurately determined; but, in addition to these, notice will be taken of a wide range of matters of natural occurrence, and of those arising in the usual course of life, the recognition of which depends upon the completeness of their certainty and notoriety. With regard to such facts care must be taken that the requisite notoriety exists. This power of judicial notice is to be exercised with caution. Every reasonable doubt upon the subject should be resolved promptly in the negative. "Judicial Notice," 12 Am. & Eng. Ency. Law, 151.

Charter of Corporation.-The charter of an incorporated railroad company is a private statute, of which the courts cannot take judicial notice, Conley v. Columbus T. R. Co., 44 Tex. 579; and in the chancery court it must be pleaded as well as proved, although the statute dispenses with the necessity of pleading it specially in courts of law. Perry v. New Orleans, M. & C. R. Co., 55 Ala. 413. But while judicial notice cannot be taken of the charter of a private corporation, nor of its corporate power or capacity, if it derives existence from such charter, i. e. a special act of incorporation, yet if it is shown, to have been incorporated under the general laws which authorize the formation and define the powers of corporations, these are public laws, of which notice must be taken, and the power must be referred to such general laws. Kelly v. Ala. & C. R. Co., 58 Ala. 489, 21 Am. Rep. 138. Although the legislature may not by a provision inserted in an act have the power to make that a public law which in its essential nature is a private law, yet, where the legislature has expressly declared that a charter shall be a public act, the courts are authorized to take judicial notice of its terms. Case v. Kelly, 133 U. S. 21, 43 Am. & Eng. R. Cas. 1. And in West Virginia it has been held that the court will take judicial