EMINENT DOMAIN-Continued.
Taking of more land than was needed: company cannot impose new burden
by conveying in perpetuity such surplus, with right to occupy and injure
owner of fee. Platt v. Penn. Co. (Ohio). 130.
Taking of more than is needed: original condemnation proceedings do not
conclude question of how much was needed, where taker has sold part as
not needful. Platt v. Penn. Co. (Ohio). 129.
Under statute, right of one railway company to the use of another company's
location affirmed. Providence, etc., R.R. Co. v. Norwich, etc., R. R. Čo.
(Mass.). 493.
Duty as to running trains with care. Alabama, etc., R. R. Co. v. McAlpine
(Ala.). 602.
Injury to, caused by obstruction near track. 545 n.
Obstructions on track, duty to look for. East Tenn., etc., R. R. Co. v. Bayliss
(Ala.). 596.
See REFORMATION; SPECIFIC PERFORMANCE.
94th rule of U. S. Supreme Court on bill by stockholders on behalf of corpora-
tion-given and commented on.
53 n.
Powers of courts of. See SPECIFIC PERFORMANCE.
See FEDERAL AND STATE COURTS.
Compliance with statutory requirements does not estop company from ques-
tioning constitutionality of statute. St. Louis, etc., R. R. Co. v. Evens,
etc., Co. (Mo.). 518.
Contract void for execution on Sunday: estoppel may arise from permitting
other party to change his position on faith thereof. Saginaw, etc., R. R.
Co. v. Chappell (Mich.). 16.
Inchoateness of contract signed on one side only cannot be alleged by party
signing after his acts amounting to estoppel. C. & A. R. R. Co. v. N. Y.,
L. E. & W. R. R. Co. (U. S. C. C., N. Y., S. D.). 265.
Recognition of contract by one entitled to repudiate it may constitute an es-
toppel. Iron R. R. Co. v. Fink (Ohio). 20.
So of recognition by company of stock subscription partly paid. Iron
R. R. Co. v. Fink (Ohio). 20.
Shipper contracting to superintend loading of cattle and accepting a car not
provided with bedding, estopped from claiming damages from such
defect. East Tennessee, etc., R. R. Co. v. Johnston (Ala.). 437.
Fact admitted by answer, not error to admit evidence of. Atchison, etc., R.
R. Co. v. Gabbert (Kan.). 622.
Fire: that it occurred after passage of locomotive, admissible. Butcher v.
Vaca, etc., R. R. Co. (Cal.). 644.
Frightening horses, driver may testify as to cause of. Geveke v. Grand Rap-
ids, etc., R. R. Co. (Mich.). 551.
Opinion evidence. See EXPERT TESTIMONY.
Unusual force in coupling cars is question of fact, and not of opinion.
Witness may state as a fact if he knows whether or not unusual force
was used. Missouri Pacific R. R. Co. v. Marten (Tex.). 409.
Opinion of sufficiency of fence not admissible, where witness had only seen
fence. Balto., etc., R. R. Co. v. Schultz (Ohio). 579. See also 589 n.
Parol to explain document: letter by officers of two companies constituting
offer which was accepted: parol evidence admissible to show that liability
was several, and not joint. Seymour v. Detroit, etc., R. R. Co. (Mich.). 9.
Taxation: evidence in tax proceedings. See REVENUE.
Value of jack: witness may testify opinion as to value of such a jack as that
killed. Atchison, etc., R. R. Co. v. Gabbert (Kan.). 621.
Variance allegation that fire escaped from locomotive to land of plaintiff, proof
of origin of fire on land adjoining plaintiff's is not a fatal. Butcher t.
Vaca, etc., R. R. Co. (Cal.). 644.
Weight of testimony of witnesses: jury may consider fact that they occupy
the relation of master and servant in considering. Ill. Central Ř. R. Co.
v. Haskins (Ill.). 343.
To report of commissioners to assess damages for land taken, may be taken;
effect. 532 n.
Agent's use of, in removing trespassers: company liable for. Carter v. Louis-
ville, etc., R. R. Co. (Ind.). 360.
Void execution, sale of stock under: rights of party in whose name it stands
on company's books. 26 n.
Baggage-man's qualifications not a question for. Moore v. C., B. & Q. R. R.
Co. (Iowa). 396.
Dangerous movement: brakeman jumping from car to tender: custom, safety,
and convenience in that respect may be shown by witness acquainted
therewith. Whitsett v. C., R. I. & P. R. R. Co. (Iowa). 336.
But witness cannot testify that he would jump down on same place that
plaintiff did. Whitsett v. C., R. I. & P. R. R. Co. (Iowa). 336.
Duties of a fireman on a switch-engine not a matter for: but may be testified
to by any witness having personal knowledge thereof. Missouri Pacific
R. R. Co. v. Mackey (Kan.). 306.
Such statement of such duties should be general as to what the duty is:
should not include an opinion whether a certain fireman performed a
specific duty in the proper manner. Id.
Connecting lines, contract between, for; specific enforcement of. 274 n.
Detective employed to detect, arrest, and prosecute persons unlawfully ob-
structing track: mistake by arresting innocent person makes company
liable. Evansville & T. H. R. R. Co. v. McKee (Ind.). 866.
FEDERAL AND STATE COURTS. "
Estoppel against a county which has failed for many years to show acts of
ownership of land in dispute, though the original title was derived from Act
of Congress, is not a Federal question. Adams Co. v. Burlington, etc.,
R. R. Co. (Ú. S.). 188.
Jurisdiction of United States Supreme Court in error from State courts: Fede-
ral question must have been raised and decided, or its decision be neces-
sary to the judgment rendered. Adams County v. Burlington, etc., R. R.
Co. (U. S.). 188.
Remand to State court denied where bill disclosed a separate controversy be-
tween plaintiff and removing defendant. Chicago, etc., R. R. Co. v.
N. Y., L. E. & W. R. R. Co. (U. S. C. C., N. Y., S. D.) 265.
Separable controversy ground for denying a remand. Chicago, etc., R. R. Co.
v. N. Y., L. E. & W. R. R. Co. (Ư. S. C. C., N. Y., S. D.). 265.
See BURDEN OF PROOF; CATTle Guards; DaMAGES; EVIDENCE;
CONSTITUTIONAL LAW; NEGLIGENCE; PLEADING.
Agreement by landowner and company as to, owner cannot maintain action
against railroad for injury from absence or bad condition of fence. St.
Louis, etc., R. R. Co. v. Busby (Mo.). 589.
Agreement by landowner and company to dispense with, or to build and
maintain fence, is proper. St. Louis, etc., R. R. Co. v. Busby (Mo.). 589.
Animals unlawfully on highway, no duty to fence against. Daniels v. Grand
Trunk R. R. Co. (Ont.). 609.
Constitutionality of fence laws. 564 n.
Construction of statute requiring, is to be reasonable. Balto., etc., R. R. Co.
v. Schultz (Ohio). 579.
Contributory negligence a defence in action for injury by failure to fence.
621 n.
Defects in, occurring without fault of company, no recovery for injuries
caused by. Balto., etc., R. R. Co. v. Schultz (Ohio). 579.
Double damage fence law of Missouri is constitutional. Mo. Pac. R. R. Co.
v. Humes (U. S. Sup. Ct.). 557.
Duty of company is statutory. St. Louis, etc., R. R. Co. v. Busby (Mo.).
Duty of company to fence private crossing. Evansville, etc., R. R. Co. v.
Mosier (Ind.). 569. See also 571 n.
616 n.
Duty of railway company, where cattle are allowed to roam.
Failure to: animals injured; under statute company not liable in absence of
collision. 569 n.
Failure to build: company liable if stock killed in consequence, although the
stock was unlawfully roaming at night. Chicago, etc., R. R. Čo. v.
Sims* (Iowa). 613 n.
Failure to fence at point of injury no ground for liability, if no failure to
fence at point where cattle entered. 594 n.
Landowner, obligation to build and maintain, not inferred from joinder of
his fence with company's. St. Louis, etc., R. R. Co. v. Busby (Mo.).
589.
Penalty for failure to fence, constitutionality. 564 n.
Station grounds, not duty of company to fence those actually in use. Mc-
Grath v. Detroit, M. & M. R. R. Co. (Mich.). 574.
Statute exempting company from liability except for negligence where road
is fenced, is constitutional. Texas Cent. R. R. Co. v. Childress* (Tex.).
565 n.
Statute requiring railway company to build, on penalty of double damages
for injuries caused by its failure to fence, is constitutional. Mo. Pacific
R. R. Co. v. Humes (U. S. Sup. Ct.) 557.
See EVIDENCE; NEGLIGENCE.
Building on fire, wind held an intervening cause. Pennsylvania Co. v. Whit-
lock (Ind.). 629.
Company liable for, whether fire kindled directly on plaintiff's premises or
on adjoining land. Butcher v. Vaca, etc., R. R. Co. (Cal.). 644.
Inconsistent general and special verdicts as to injury by fire, company held
not liable. Manhattan, etc., R. R. Co. v. Keeler* (Kan.). 649.
Passage of locomotive followed by fire, engine probable cause of fire.
Butcher v. Vaca, etc., R. R. Co. (Cal.). 644.
Probability that fire would extend from depot to hotel, what sufficient to made
company liable. Chicago, etc., R. R. Co. v. Pennell* (Ill.). 648 n.
Widow's right to sue for property burned on her land affirmed. Interna-
tional, etc., R. R. Co. v. Timmerman* (Tex.). 648 n.
Consolidation of foreclosed company with company purchasing at foreclosure
sale. See CONSOLIDATION. Leavenworth County v. C., R. I. & P. R. R.
Co. (U. S. C. C., W. D. Mo.). 61.
Eminent domain: exercise of power of, authorized in Missouri. Gray v. St.
Louis, etc., R. R. Co. (Mo.). 106.
Contract containing provision for, not specifically enforced. State of Kansas
v. Southern Pacific R. R. Co. (U. S. C. C., Kan.). 198.
Construction of contract where fraud is alleged is determinable from consider-
ation of all extrinsic facts, as well as form and words of instrument. St.
Paul, etc., R. R. Co. v. McDonald (Minn.). 208.
Stoppage in transit, right of, not extinguished or impaired by garnishment of
carrier. 432 n.
Authority of, to make contracts for care of injured brakeman, inferred.
Louisville, etc., R. R. Co. v. McVey (Ind.). 382.
See LAND GRANT; SCHOOL LANDS; SWAMP LANDS.
Grant of right of way across husband may make, without joinder of wife,
where railway will not materially interfere with wife's right to use and
occupancy of land for homestead. Randall v. Texas, etc., R. R. Co.
(Tex.). 102.
Husband's grant of right of way through. 105 n.
Husband may manage and control. Randall v. Texas, etc., R. R. Co. (Tex.).
102.
Against railway commissioners does not suspend their salaries. Savage v.
Pickard (Tenn.). 490.
Breach of contract not specifically enforceable will be restrained by injunction.
Chicago, etc., R. R. Co. v. Ñ. Y., L. E. & W. R. R. Co. (U. S. Č. C., N.
Y., S. D.). 265.
Contract between railway companies, whereby they agreed to establish a de-
spatch line, construed, and breach enjoined. C. & A. R. R. Co. v. N. Y.,
L. E. & W. R. R. Co. (U. S. C. C., N. Y., S. D.). 265.
Ejectment of railway companies: equitable restraint of. 129 n.
Eminent domain: injury under color of exercise of: note on injunction in
Injury under color of exercise of, restrained on grounds of right and of
keeping corporations subject to law: injury need not be irreparable.
East, etc., R. R. Co. v. East Tenn., etc., R. R. Co. (Ala.). 81.
Injunctions to prevent the breach of negative covenants and mandatory in-
junctions to compel the observance of affirmative covenants are granted
where the threatened breach of an existing contract is clearly shown, but
only where damages at law would be an inadequate remedy. Chicago,
etc., R. R. Co. v. N. Y., L. E. & W. R. R. Co. (U. S. C. C., N. Y., S. Ď.).
265.
Jurisdiction: city court held to have jurisdiction to issue writ returnable_to
any court of the State having jurisdiction to hear. East, etc., R. R. Co.
v. East Tenn., etc., R. R. Co. (Ala.). 81.
Injunction granted by officer having none: motion to discharge (and not
to dissolve) is remedy: jurisdiction not open to consideration on motion
to dissolve. East, etc., R. R. Co. v. East Tenn., etc., R. R. Co. (Ala.). 81.
Motion to dissolve cannot operate as demurrer: all amendable defects regarded
as cured for purposes of the motion. East, etc., R. R. Co. v. East Tenn.,
etc., R. R. Co. (Ala.). 81.
Packing of board of directors for purpose of misappropriating funds of com-
pany is breach of trust, and semble ground for injunction and receiver.
Davis v. Memphis City R. R. Co. (U. S. C. C., W. D.). 1.
Prohibition or restriction on use of land, e.g., against building, abrogated by
taking of land for public use, revives upon sale of land for private uses
by company taking, and will be enforced by injunction. Bird v. Eggle-
ton (Eng. Ch. D.). 174.
Right of way: bill to protect, held good on demurrer. Chance v. E. Tex.
R. R. Co. (Tex.). 169.
Series of acts or continuous acts in violation of contract restrained by injunc-
tion. 271 n.
Trust upon earnings to create a sinking fund does not in itself prevent leasing
of road by which its earnings are not separately ascertainable. Other facts
and provisions held to show ground for injunction. Phillips v. Eastern
R. R. Co. (Mass.). 247.
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