sounding in tort. Carver v. Braintree Mfg. Co. 2 | 120, 3 Am. & Eng. Corp. Cas. 78; Mandion v. Firestory, 432; Mill Dam Foundry Proprs. v. Hovey, 21 men's Ins. Co. 11 Rob. (La.) 177; Nathan v. WhitPick. 417; Gray v. Bennett, 3 Met. 522; Wyman v. lock, 9 Paige, 152; Paine v. Stewart, 33 Conn. 517. American Powder Co. 8 Cush. 182; Dryden v. KelJogg, 2 Mo. App. 87; Smith v. Omans, 17 Wis. 395; White v. Hunt, 6 N. J. L. 402; Chase v. Curtis, 113 U. S. 452 (28: 1038); Bohn v. Brown, 33 Mich. 257; Cable v. McCune, 26 Mo. 371, 72 Am. Dec. 214: Doolittle v. Marsh, 11 Neb. 243; Heacock v. Sherman, 14 Wend. 59; Archer v. Rose, 3 Brewst. 264; Child v. Boston & F. Iron Works, 137 Mass. 516, 50 Am. Rep. 328: Nanson v. Jacob, 93 Mo. 331; Crouch v. Gridley, Hill, 250: Zimmer v. Sct.leehauf, 115 Mass. 52; Re Boston & F. Iron Works, 23 Fed. Rep. 880; Losee v. Bullard, 79 N. Y. 404, affirming Esmond v. Bullard, 16 Hun, 65; Kellogg v. Schuyler, 2 Denio, 73.

By the act of July 1, 1862, entitled "An Act to Aid in the Construction of a Railroad and Telegraph Line from the Missouri River to the Pacific Ocean, and to Secure to the Government the Use of the Same for Postal, Military, and Other Purposes" (12 Stat. at L. 489, chap. 120), the Union Pacific Railroad Company was incorporated with power to lay out, locate, maintain, and enjoy a continuous railroad and telegraph from a named point in what was then the territory of Nebraska to the western boundary of what at that time was the territory of Nevada.

lands and provided for the issuing of bonds in | condition that said company shall pay said aid of the construction of a railroad and tele- bonds at maturity, and shall keep said railroad graph line from the Missouri river to the Pa- and telegraph line in repair and use, and shall cific ocean. at all times transmit despatches over said telegraph line, and transport mails, troops, and munitions of war, supplies, and public stores upon said railroad for the government whenever required to do so by any department thereof; and that the government shall at all times have the preference in the use of the same for all the purposes aforesaid (at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service); and all compensation for services rendered for the government shall be applied to the payment of said bonds and interest until the whole amount is fully paid." The company was entitled to pay the United [417 States, wholly or in part, in the same or other bonds, Treasury notes or other evidences of debt against the United States, to be allowed at par; and after the road was completed, until the bonds and interest were paid, at least 5 per cent of the net earnings of said road were required to be annually applied to the payment thereof. § 6.

That company was given the right of way through the public lands for the construction of its railroad and telegraph line as well as the power and authority to take from those lands adjacent to the line of the road, earth, stone, and timber, and other materials required in the work of construction, and, so far as it was necessary to do so, to occupy the public lands for stations, buildings, workshops, and depots, machine shops, switches, side tracks, turntables, and water stations; the United States to extinguish the Indian titles to all lands falling under the operation of the act and required for the right of way and grants made. For the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores," a large grant of lands was made, for which patents were directed to be issued as each 40 consecutive miles of railroad and telegraph were completed and equipped in all respects as required. § 2, 3, 4.

The 5th section provided that for the purposes 416]mentioned the Secretary of the Treasury, upon the completion and equipment of 40 consecutive miles of railroad and telegraph, should issue to the company bonds of the United States, of $1,000 each, payable in thirty years after date, bearing 6 per cent per annum interest, to the amount of sixteen of said bonds per mile for such section of 40 miles; and "to secure the repayment to the United States, as hereinafter provided, of the amount of said bond so issued and delivered to said company, together with all interest thereon which shall have been paid by the United States, the issue of said bonds and delivery to the company shall ipso facto constitute a mortgage on the whole line of the rail road and telegraph, together with the rolling stock, fixtures, and property of every kind and description, and in consideration of which said bonds may be issued; and on the refusal or failure of said company to redeem said bonds, or any part of them, when required so to do by the Secretary of the Treasury, in accordance with the provisions of this act, the said road, with all the rights, functions, immunities, and appurtenances thereunto belonging, and also all lands granted to the said company by the United States, which, at the time of said default shall remain in the ownership of said company, may be taken possession of by the Secretary of the Treasury for the use and benefit of the United States."

The grants referred to were made "upon

The company was required to file its assent to the act in the Department of the Interior within one year after its passage, and it was allowed until the 1st day of July, 1874, to complete its railroad and telegraph through the territories of the United States to the western boundary of the territory of Nevada, "there to meet and connect with the line of the Central Pacific Railroad Company of California." 7, 8.

The 9th section authorized the Leavenworth, Pawnee, & Western Railroad Company of Kansas to construct a railroad and telegraph line from the Missouri river, at the mouth of the Kansas river, "upon the same terms and conditions in all respects" as were provided in the act for the construction of the railroad and telegraph line first mentioned, and to meet and connect with the same at the meridiau of longitude named; the route in Kansas, west of the meridian of Fort Riley, to the aforesaid point, on the 100th meridian of longitude, to be subject to the approval of the President of the United States, and to be determined by him on actual survey. By the same section it was declared that "the Central Pacific Railroad Company of California, a corporation existing under the laws of the state of California, are hereby authorized to construct a railroad and telegraph line from the Pacific coast, at or near San Francisco, or the navigable waters of the Sacramento river, to the eastern boundary of California, upon the same terms and conditions, in all respects, as are contained in this act for the construction of said railroad and telegraph line first mentioned, and to meet and connect with the firstmentioned railroad and telegraph_line on the eastern boundary of California. Each of said companies shall file their acceptance of the conditions of this act in the Department of the Interior within six months after the passage of this act."

*The 10th section provided that the [418 company chartered by the state of Kansas should complete 100 miles of its road, commencing at the mouth of the Kansas river, within two years

use, and may direct the income of said railroad and telegraph line to be thereafter devoted to the use of the United States, to repay all such expenditures caused by the default and neglect of said company or companies: Provided, That if said roads are not completed, so as to form a continuous line of railroad, ready for use, from the Missouri river to the navigable waters of the Sacramento river, in California, by the 1st day of July, 1876, the whole of all of said railroads before mentioned and to be constructed under the provisions of this act, together with all their furnishings, fixtures, rolling stock, machine shops, lands, tenements, and hereditaments, and property of every kind and character, shall be forfeited to and be taken possession of by the United States: Provided, That of the bonds of the United States in this act provided to be delivered for any and all parts of the roads to be constructed east of the 100th meridian of west longitude from Greenwich, and for any part of the road

after filing its assent to the conditions of the act, and 100 miles per year thereafter until the whole was completed; and the Central Pacific Railroad Company of California should complete 50 miles of its road within two years after filing its assent to the provisions of the act, and 50 miles per year thereafter until the whole was completed; and "after completing their roads, respectively, said companies, or either of them, may unite upon equal terms with the first-named company in constructing 80 much of said railroad and telegraph line and branch railroads and telegraph lines in this act hereinafter mentioned, through the territories from the state of California to the Missouri river, as shall then remain to be constructed, on the same terms and conditions as provided in this act in relation to the said Union Pacific Railroad Company." And the Central Pacific Railroad Company of California, after completing its road across that state, was authorized to continue the construction of said railroad and telegraph through the ter-west of the west foot of the Sierra Nevada Mounritories of the United States to the Missouri river, including the branch roads specified in this act, upon the routes herein before and hereinafter indicated, on the terms and conditions provided in this act in relation to the said Union Pacific Railroad Company, until said roads shall meet and connect, and the whole of said railroad and branches and telegraph is completed.'

By the 12th section it was declared that the "track upon the entire line of railroad and branches shall be of uniform width, to be determined by the President of the United States, so that, when completed, cars can be run from the Missouri river to the Pacific coast; the grades and curves shall not exceed the maximum grades and curves of the Baltimore & Ohio Railroad; the whole line of said railroad and branches and telegraph shall be operated and used for all purposes of communication, travel, and transportation so far as the public and government are concerned, as one connected, continuous line.

tains, there *shall be reserved of each [420 part and instalment 25 per cent, to be and remain in the United States Treasury undelivered, until said roads and all parts thereof provided for in this act are entirely completed; and of all the bonds provided to be delivered for the said road, between the two points aforesaid, there shall be reserved out of each instalment 15 per cent, to be and to remain in the Treasury until the whole of the road provided for in this act is fully completed; and if the said road or any part thereof shall fail of completion at the time limited therefor in this act, then and in that case the said part of said bonds so reserved shall be forfeited to the United States."

By the 18th section it was declared: "Whenever it appears that the net earnings of the entire road and telegraph, including the amount allowed for services rendered for the United States, after deducting all expenditures, including repairs and the furnishing, running, and managing of said road, shall exceed 10 per cent upon its costs, exclusive of the 5 419] *The 15th section gave to any other rail-per cent, to be paid to the United States, road company then or thereafter incorporated the right to connect with the road and branches provided for by the act, at such places and upon such just and equitable terms as the President of the United States should prescribe. All of the railroad companies named in the act, and assenting thereto, or any two or more of them, were authorized to form themselves into one consolidated company; notice of such consolidation to be in writing, to be filed in the Department of the Interior, and the consolidated company to proceed to construct the railroad, branches, and telegraph line, upon the terms and conditions provided in the act. § 16.

The 17th section provided: "That in case said company or companies shall fail to comply with the terms and conditions of this act, by not completing said railroad and telegraph and branches within a reasonable time, or by not keeping the same in repair and use, but shall permit the same, for an unreasonable time, to remain unfinished, or out of repair, and unfit for use, Congress may pass any act to insure the speedy completion of said road and branches, or put the same in repair and

Congress may reduce the rates of fare thereon if unreasonable in amount, and may fix and es tablish the same by law. And the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, Congress may, at any time, having due regard for the rights of said companies named herein, add to, alter, amend, or repeal this act."

The several railroad companies named were authorized to enter into an arrangement with the Pacific Telegraph Company, the Overland Telegraph Company, and the Čalifornia State Telegraph Company, "so that the present line of telegraph between the Missouri river and San Francisco may be moved upon or along the line of said railroad and branches as fast as said roads and branches are built; and if said arrangement be entered into and the transfer of said telegraph line be made in accordance therewith to the line of said *railroad and[421

$ 19.

make convenient and necessary connections with other roads, it was authorized to establish and maintain all necessary ferries upon and across all rivers which its road might pass in its course; and authority was given each cor. poration to construct over all rivers for the convenience of such road bridges having suitable and proper draws for the passage of steamboats.

branches, such transfer shall, for all purposes of this act, be held and considered a fulfilment on the part of said railroad companies of the provisions of this act in regard to the construction of said line of telegraph. And, in case of disagreement said telegraph companies are authorized to remove their line of telegraph along and upon the line of railroad herein contemplated without prejudice to the rights of the railroad companies named herein.' The 10th section provided "that § 5 of said The act of 1862 was amended in many par-act be so modified and amended that the Union ticulars by the act of July 2, 1864. 13 Stat. at Pacific Railroad Company, the Ceutral Pacific L. 356, chap. 216. The time for designating Railroad Company, and any other company the general route of the Union Pacific Railroad, authorized to participate in the construction of and of filing the map of the same, and the said road, may, on the completion of each sectime for the completion of that part of the tion of said road, as provided in this act and the railroads required by the terms of said act of act to which this is an amendment, issue their each company, was extended one year from first-mortgage bonds on their respective railthe time designated in the act of 1862; and the road and telegraph lines to an amount not exCentral Pacific Railroad Company of Califor-ceeding the amount of the bonds of the United nia was required to complete 25 miles of its States, and of even tenor and date, time of road "in each year thereafter, and the whole maturity, rate and character of interest with to the state line within four years, and that the bonds authorized to be issued to said railonly one half of the compensation for services road companies respectively. And the lien of rendered for the government by said companies the United States bords shall be subordinate shall be required to be applied to the payment to that of the bonds of any or either of said of the bonds issued by the government in aid companies hereby authorized to be issued on of the construction of said roads." § 5. their respective roads, property, and [423 equipments, except as to the provisions of the 6th section of the act to which this act is an amendment, relating to the transmission of despatches and the transportation of mails, troops, munitions of war, supplies, and public stores for the government of the United States. And said section is further amended by striking out the word 'forty,' and inserting in lieu thereof the words 'on each and every section of not less than twenty.'

The proviso to section 4 of the original act was modified so that the president of the United States was authorized to appoint for each of the roads three commissioners, as provided for in the original act; and "the verified statement of the president of the California company, required by said § 4, shall be filed in the office of the United States surveyor general for the state of California, instead of being presented to the President of the United States; and the said surveyor general shall thereupon notify the said commissioners of the filing of such statement, and the said commissioners shall thereupon proceed to examine the portion of said railroad and telegraph line so completed, and make their report thereon to the President of the United States, as provided by the act of which this is amendatory. And such statement may be filed, and such railroad and telegraph line be examined and reported on, by the said commissioners, and the requi422]site amount of bonds*may be issued and the lands appertaining thereto may be set apart, located, entered, and patented, as provided in this act and the act to which this is amendatory, upon the construction by said railroad company of California of any portion of not less than 20 consecutive miles of their said railroad and telegraph line, upon the certificate of said commissioners that such portion is completed as required by the act to which this is amendatory." $6.

So much of § 17 of the act of 1862 as provided for a reservation by the government of a portion of the bonds to be issued to aid in the construction of the said railroads was repealed; and it was provided that the failure of any one company to comply fully with the conditions and requirements of that act, and the act of which it was amendatory, should not work a forfeiture of the rights, privileges, or franchises of any other company or companies that should have complied with the same. § 7.

To enable any one of the corporations to

By the 4th section it was declared that "if any of the railroad companies entitled to bonds of the United States, or to issue their firstmortgage bonds herein provided for, has, at the time of the approval of this act, issued, or shall thereafter issue, any of its own bonds or securities in such form or manuer as in law or equity to entitle the same to priority of preference of payment to the said guaranteed bonds or said first-mortgage bonds, the amount of such corporate bonds outstanding and unsatisfied or uncanceled shall be deducted from the amount of such government and first-mortgage bonds which the company may be entitled to receive and issue; and such an amount only of such government bonds and such first-mortgage bonds shall be granted or permitted, as, added to such outstanding, un. satisfied, or uncanceled bonds of the company, shall make up the whole amount per mile to which the company would otherwise have been entitled. . . . Provided, also, That no land granted by this act shall be conveyed to any party or parties, and no bonds shall be issued to any company or companies, party or parties, on account of any road, or part thereof, made prior to the passage of the act to which this act is an amendment, or made subsequent thereto, under the provisions of any act or acts other than this act and the act amended by this act."

The 12th section provided that the Leavenworth, Pawnee, & Western Railroad Company, now known as the Union Pacific Railroad Company, Eastern Division, should build the

railroad from the mouth of Kansas river, by | organization shall reach the constructed road the way of Leavenworth, or, if that be not and telegraph of said other company and at deemed the best route, then it should, within such point to connect and unite therewith; two years, build a railroad from the city of Leav- and for and in aid thereof the said consolidated enworth to unite with the main stem at or near organization may do and perform, in reference 424] the city *of Lawrence; but to aid in the to such portion of road and telegraph as shall construction of said branch the company was so be in continuation of its constructed road to receive no bonds. And if the Union Pacific and telegraph, and to the construction and Railroad Company should not be proceeding equipment thereof, all and singular the several in good faith to build its railroad through the acts and things provided, authorized, or granted territories, when the Leavenworth, Pawnee, & to be done by the company authorized to conWestern Railroad Company, or the Union struct and equip the same," and shall be Pacific Railroad Company, Eastern Division, entitled to “similar and like grants, benefits, shall have completed its road to the 100th immunities, guaranties, acts, and things to be degree of longitude, then the last named com done and performed by the government of the pany may proceed to make said road west- United States, by the President of the United ward "until it meets and connects with the States, or the Secretaries of the Treasury and Central Pacific Railroad Company on the Interior, and by commissioners in reference to same line." such company, and to such portion of the road herein before authorized to be constructed by it, and upon the like and similar terms and conditions, as far as the same are applicable thereto. And in case any company authorized thereto shall not enter into any consolidated organization, such company, upon the completion of the road as hereinbefore provided, shall be entitled to, and is hereby authorized to, continue and extend the same under the circumstances, and in accordance with the provisions in this section, and to have all the benefits thereof, as fully and completely as are herein provided, touching such consolidated organization. And in case more than one such consolidated organization shall be *made, pursuant to this act, the terms [426 and conditions of this act, herein before recited as to one, shall apply in like manner, force, and effect to the other: Provided, however, That rights and interests at any time acquired by one such consolidated organization shall not be impaired by another thereof." It was further provided that "should the Central Pacific Railroad Company of California complete their line to the eastern line of the state of California, before the line of the Union Pacific Railroad Company shall have been

The 15th section required the several companies authorized to construct the aforesaid roads to operate and use said roads and telegraph for all purposes of communication, travel, and transportation, so far as the public and government were concerned. "as one con tinuous line; and in such operation and use to afford and secure to each equal advantages and facilities as to rates, time, and transportation, without any discrimination of any kind in favor of the road or business of either or any of said companies, or adverse to the road or business of any or either of the others."

Any two or more of the companies authorized to participate in the benefits of the act were authorized, at any time, to unite and consolidate their organizations "upon such terms and conditions and in such manner as they may agree upon, and as shall not be incompatible with this act or the laws of the states in which the roads of such companies may be," and thereupon such organization, so formed and consolidated, "shall succeed to, possess, and be entitled to receive from the government of the United States all and singular the grants, benefits, immunities, guaranties, acts, and things to be done and performed, and be subject to the same terms, conditions, restric-extended westward so as to meet the line of tions, and requirements which said companies, respectively, at the time of such consolidation, are or may be entitled or subject to under this act, in place and substitution of said companies so consolidated respectively." 16.

All the provisions of this act so far as ap plicable, relating or in any manner appertaining to the companies so consolidated, or either 425]thereof, were to apply to the*consolidated organization. And if, upon the completion by the consolidated organization of the roads, or either of them, of the companies consolidated, any other of the road or roads of either of the other companies authorized and forming, or intended or necessary to form, a portion of "a continuous line" from each of the several designated points on the Missouri river to the Pacific coast shall not have constructed the number of miles of its road within the time required, the consolidated organization was authorized "to continue the construction of its road and telegraph in the general direction and route upon which such incomplete or unconstructed road is herein before authorized to be built, until such continuation of the road of such consolidated

said first-named company, said first-named company may extend their line of road eastward 150 miles on the established route, so as to meet and connect with the line of the Union Pacific road, complying in all respects with the provisions and restrictions of this act as to said Union Pacific road, and upon doing so shall enjoy all the rights, privileges, and benefits conferred by this act on said Union Pacific Rail road Company." § 16.

By a subsequent act, approved March 8, 1865, the 10th section of the act of 1864 was so amended as to allow the Central Pacific Railroad Company, and the Western Pacific Railroad Company of California, the Union Pacific Railroad Company, the Union Pacific Railroad Company, Eastern Division, and all other companies provided for in the above act, to issue their 6 per cent thirty-years' bonds, to the extent of 100 miles in advance of a continuous, completed line of construction; further, that "the assignment made by the Central Pacific Railroad Company of California to the Western Pacific Railroad Company of said state, of the right to con struct all that portion of said railroad and