xt73bk16mf8w_579 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [418b] Commonwealth of Kentucky v. L&E Railway Company, Lee Circuit Court text [418b] Commonwealth of Kentucky v. L&E Railway Company, Lee Circuit Court 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_57/Folder_2/4653.pdf section false xt73bk16mf8w_579 xt73bk16mf8w O
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Befiere the Kentucky Railroad Commission.
In the matter of application or ) 'p
the Lexington & Eastern Railway 3 =
Company to abandon station Monica g >_
and change the site of stations ; t3 9
St. Helens and Tallega. 3 ‘V f
o I
BRIEF Egg COMELAINAHE. 3
. This is an application by the Lexington & EasterhpailWay
Company to the Kentucky hailroad Uommission for its consent Q
abandon nonica station and change the site or St. Helena and allege
stations. It is mace pursuant to Dection 772 of the Kentucky
> Statutes, which provides that consent or the Commission Iirst g
must be obtained before a passenger station that has been in Ope; '
ation ior rive years can be abandoned. It is recognized that
ireight stations and passenger stations that have not been es-
tablished ior as long a period as iive years are subject to the
unrestrictec control or the carrier owning the road oi which they
are a part.
This application is not an arbitrary one, but is incident .
I to an improvement in the Lexington & Eastern nailway, which re—
quires theabandonment or a portion 01 its line, beginning at
Beattyville Junction and extenoing eastwarcly irom that point a
distance 01 about eight ane one~half miles. In lieu or this part .
of the road thus to be discontinueu, the Company has constructed
a new section south of, and substantially parallel to, the eiscon—
”finned part, but by reason 01 the elimination or extensive curva—
tures the length or the new part is one and Iorty-two hundredths
miles shorter than the discontinued part.

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As all of the stock and practically all of the securities
or the Lexington & Eastern fiailway Company are owned by the Louis-
ville & Nashville hailroad Company, the latter wompany iurnished
the money and itself constructed the new section and conveyed it
to the Lexington & Eastern nailway Company, so that the Lexington
& Eastern now, as beiore, owns the continuous line of railroad from
McRoberts to Lexington, Ky.

; The case then largely depends upon the right or the
, Railway company to Change that portion or its line upon which these
three stations are located.

The correct determination or this question involves a
consideration (1) of the law under which the complainant claims
the right to make the change, and (2) or the facts which it asserts
justify the application OI that law.

The Kentucky law relating to a change
in the location or a railroad.

At the conclusion or the hearing, counsel for the protes—
tants made the statement that they desired to present certain
authorities to the commission bearing on this question. We have ‘
Just received and carerully examined both brieis Ior protestants,

{and neither cites any text booK or GeCiQGd case upon any proposi-
hgtion whatever. We submit that they do not militate against, and,
.Iin fact, seem not to attempt to meet our position, which is, that
*whatever may be the law elsewhere, in Kentuchy the right is speciri;'
,, cally given to a railroad company to change the location or its
railroad upon;c§rtain grounds definitely set forth in the statute.
kw; We are aware that authorities can be found in support
or the proposition that aiter the railroad is once constructed
I its location cannot be changed without legislative authority,
. but in Kentucky the legislative authority Ior making changes is
ample?” As was said in Dewey, et al. v. Atlantic Coast Line, et al.,
55 s;E. 295:

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/ "It is not necessary, however, that the power to change
{ a route should be given in the charter or a direct amendment
, ; thereto; but, as stated in one oi the authorities, it may be
V j given by charter or by special enactment, or by the general ’
I railroad laws in the state."

In Kentucky, Section 767 gives unrestricted authority
to change the route berore construction, by merely Iiling a map
or the prOposed change; while section 768, sub—section 4, in enu-
merating the powers of railroad companies, includes the express
power to make changes in the railroad itseli, both.location and
grade, Ior certain reasons therein Speciried. By that section
it is expressly provided that every railroad company "may, for
the purpose of avoiding annpyance to public travel, or dangerous
or diiiicult gEades or curves, or unsaie or insecure grounds or
roundations, or ior other reasonable cause, change the location
or grade or any portion of its road; but shall not, except as
otherwise provided, depart from its general route prescribed in

. the articles of incorporation." I

The Court of Appeals of Kentucky has never been called
upon to construe the meaning of this clause, for the probable rea-
son that the meaning is too plain ever to have been questioned.

It is manifest, therefore, that while some applications
ior consent to the abandonment of the stations are addressed merely
to the sound discretion 0: the Commission, in a case of this sort,
it the facts justiry the abandonment of a portion or a railroad,
it becomes the duty or the Commission to give its consent to the
abandonment oi the stations.

are the facts proven in this case sufricient to
make out any one or more or the grounds whichl
under the statuteI authorize a change?

The protestants introuuced a number of witnesses, who
resided in the Section affected, to tell principally of high
water, wrecks, etc., and the most or such testimony either was
negative in character or was pure hearsay. No witness was intro-
duced who professed to have any knowledge of engineering or at-
tempted to give any technical evidence upon the engineering

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questions involved.
Afiter one of the attorneys had announced that the pre-
testants were through, his colleague made the statement that they
i had more than twenty additional witnesses on hand who would testify
t to substantially the facts as those who did testify. In view of
the fact that the commissioners had not limited the number of wit-
nesses, we assume that this statement 01 counsel adds nothing to
the evidence, but, ii it should be considered, we have a right to
assume that the evidence or these witnesses would have been as
incompetent and irrelevant as that o: the ones who did testify.

It may be noted in passing that some or the witnesses
undertook to testify as to the inconvenience and damage that they
would sufier by reason of the change or this line. This, of course,
rurnishes no defense to the proceeding, Ior the Legislature must
have known that some inconvenience, and possibly rinancial loss,

. would naturally result to those whose property and interests lay
on the abandoned part or a railroad, but that fact was not made a
limitation upon the power granted by the statute. The evidence
a in this case, however, shows that it will be diiIicult to Iind a I
place where a change of this sort could be made with such Pitt}? ;
detriment to the private citizens directly interested. X
WM» There Was no complaint whatever from Tallega, which was
simply moved a little further east. At Monica it was shown that
there were only three dwellings and one store house. At bt. helens
there were twenty-six houses in all, including Iour store houses.
. I? These, however, are not denied train service, but are simply incon-
"Ty venienced, i: it be such, by having the station slightly more
I/distant from their houses. In this connection, it may be added
Ethat it is the intention oi the Lexington & Eastern nailway Company.
Q € to construct a good macadam road covering this distance betWeen
the site or the old St. Helens station and the new one.

While insisting that no evidence had been orrered by
protestants to justiiy setting aside the Iormer order or the
Commission, tne”%6dpia{fiant, at the conclusion of their evidence,

‘ proceeded to present its case.

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It must be remembered that the grounds upon which the
Legislature erpressly authorized the cairier to change a portion .
5 of its road largely involved questions or correct engineering, and.
rgare directly aimed at the_improvement or engineering conditions,
,., ,_ . ,, ”
jto the end that the service to the puolic may be better and saIer.

We claim that while any one would have been sufficient,

the complainant established all the grounds named in the statute.
Dangerous Curves.

An examination or the msBe almost without further tee:
timony, established this ground. _We introduced, however, three
men 3; high standing in their profession and or undoubted credi-
bility: W. A. McDowell, who has been in the service or the Lexing-
ton & Eastern nailway uompany Ior sixteen years asafiears as engineer
of Maintenance of Way, ChieI nngineer and General Manager, Wm. A.
Newman, the present engineer in charge of the Lexington & Eastern

' Railway, and H. o. Williams, Who is the Uhier engineer of Uonstruc-
tion or the entire Louisville & Nashville system and also or the
Lexinaton & Eastern hailway. These men, with no personal interests
at stake, gave the Commission convincing testimony on this and the
other engineering questions involved.

Without undertaking to specify the distinct statenent
of each, as they testiiied to substantially the same facts, it is
enough to say that all three testiried that the curves upon this

, eight and one-hair miles oi track are in a numberigriinstanceswfi
dangerous, there being no other curve upon the entire rive thouf‘
sand miles of the Louisville & Nashville system (with possibly one
exception) so stirf as the curve at Horseshoe Bend, the exact
appearance or which is shown upon the enlarged section or map E

” Known as No. 2. They also testified that the next stiriest curve
: upon the entire Lexington & Eastern nailway was the curve near
I Lumber Point, which is shmwn upon enlarged map No. 3. All of these
Witnesses testified that these curves were dangerous, and that
fact is demonstrated by the further testimony of Mr. McDowell

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that there have been many wrecks at all these points, particularly
f at the Horseshoe Bend, averaging in Ionner years something like
5 one a month.

It was shown that likewise, in later years, While the
wrecks are not so frequent, because or the Special rule
Which requires the trains to slow up at these points to a speed
or not exceeding ten miles an hour, yet they still occur all too I
oiten. It was suggested by counsel oi the other side that this
could have been remedied by a tunnel going across the nenk of

( the Horseshoe Bend, but this, besides being very expensive, would
f
i have required two additional bridges across the river to cut ofi
‘ i the bend, in the head of which is situated Monica station.
Diriicult Grades.

The testimony of these engineers was to the efrect
that the grade over this new part or the road was or such char-
acter that, by reason or the change to the grade or the new

ciportion, one engine could haul four times as heavy a load as

{mgover the old line. This was illustrated by Mr. McDowell in his
discussion oi the different comparative elevations covering a
certain stretch beginning less than a mile east of the point of
intersection between the old and new lines and extending over
into the part in controversy. It was shown that within this
short distance, there was a diIference of fifty-two feet, that
is, the new line was seventeen reet lower at one end or this
Space and thirty-five feet higher at the other.

insecure Foundations.

Upon this question it was shown by Mr. mcDowell that
on a number of occasions the Kentucky river, along the side of
which the railroad runs, got up practically to the Pgfit9m.°r

- thewrails,wanc that in a number oi places at various times the
foundations or the track had more or less washed out. Mr. Newman,

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who has been on the road three years, testiiied to at least two
occurrences of this sort within his recollection. rhey ooth tes-
Etiiied that no one could Ioretell when this was going to occur,
3 out that it was always a Ieature of material danger. rhey both
testified (notwithstanding the negative testimony or some neigh-
‘ <~ coring iarmers that they did not Know of it? that the foundations
{ or the track at Horseshoe Bend were supported on
1 pilings, which are subject to decay and weakness, and consequent
danger. 1
Other heasonable Uauses.

The statute also allows changes "for other reasonable
cause." it was proven that the main highway in that section is
the county road Irom beattyville to Jackson, and that within the

1 distance here involved the old line crosses that county road

1 six times at grade, whereas upon the new line it does net cross

, it at grade at any place, but is always either under or over it.

j it would be difficult to find a clearer case of annoyance to

; public F?§Yet? not to say grave danger to the public travel,

1 than is presented by these conditions aiiecting the old road.

, Anouher thing in which the public is interested is the
-shortening oi the line. while the witnesses OI the protestants
gave vague estimates of distances between difierent points, they

certainly could not expect the Commission to accept such statements .
as evidence of any value upon this question 01 distance, particu-
V larly when they could easily have getten the exact distances by

measurements. The engineers testiiied that the difference between
the two lines was 1.45 miles.

It is suggested that these improvements are primarily
i01 the interest or the Louisville a Nashville hailroad Company
rather than the Lexington a eastern nailway Company. This sugges-
tion is, oi course, irrelevant, as it maKes no diiierence which
company owns the railroad. it is true that when the Lexington &
Eastern road SinKeS What is anown as the old h. a A. road the

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g\ lines separate, one going towards Lexington, and the other, via
1 Beattyville, towards lrvine. Instead of furnishing a reason
against conSenting to this change, that suggestion furnishes an
additional reason ior the change, since the ireight and
passengers from the east are tranSported over a better, safer,
; and shorter road, whether going by the L & A or the L & E routes,
3_arter they rsach the point or separation.‘
‘ Large Cost.

That the prOposition herein involved appeared to be a
serious one to the railway company, and that there was no other
practicable solution oi the difIiculuiss is
obvious from the fact that p594,0Q®has been Spent in building
the substituted line, and p50,0UO more will be required to satis-
iactorily complete it. This includes the construction or the new
line to Malonsy, and the elevation and reconstruction of the three
miles Obtained from the L & N, reaching irom Maloney up to Beatty-
Ville Junction. This latter work was rendered necessary in order

- :to elevate the entire line well above the highest water over Known.
lThiS Was done and pho increass in elevation at Maloney was about
sight feet .
‘ Wlhis whole case was summed up in the statement of the g;
‘ engineers that the new road was built hacauss the old ono-couhdlf
333 so made a first-class road1 ;/
t” We submit that the protestanrs, after full opportunity .
IOT ample preparation, have offered practically no evidence to :
JHSElfy'setting aside the former order herein; whereas, the applhr
i ' cunts have, as we think, conclusively established, by competent
and uncontradicted testimony, three or more of the grounds, which,
under tiie statute, give the carrier the right to change the loca~
sion of .a portion of its road.

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‘ The Briefs for Protestants.

We will not prolong this discussion by extenced reference
to the two briefs for protestants, for the reason that little of
either seems to us relevant to the case. _

In this statement no disrespect for counsel is intended,
as the fault lies not with them, but with the merits of their case.

The burden of hr. McDaniel's argument is that this
proceeding should be dismissed because the real party in interest
is the L & N, Which owns practically all the stock and bonds of the
L & E. It is summed up in the alleged D'cripture quotation, whose
importance he emphasizes by writing it in large capital letters:

"It is the hand of Jacob, but the voice or Esau."

Unfortunately for the logic of counsel, and for the right _
or his client's cause, both are as mush turned around as is this
reversed quotation from Genesis 27:22.

Upon the iacts, counsel, disdaining Specification of
witnesses, generalize as follows:

"We presented evidence showing that it lengthened the

distance, increased the slides, ran into overrlowed country
and that the curves could have been easily omitted."

It is possible that some indefinite suppositions or his '
lay witnesses may satisfy counsel's conscience in stating "evidence"
to the above effect was "presented", but the exact contrary of each
or the iour statements in counsel’s summary was indiSputably estab-
lished by the map and by the exact testimony or the three engineers,

, who proved that the new line was 1.48 miles shorter, that it was
Iree from slides, that it was above the highest water ever known,
and that it was impracticable to eliminate the curves on the old
line. Uounsel then insist that the new line departs from the
general route of the old because it goes upon the Opposite side
of the Kentucky river. What the statute says is that it shall
not "depart irom the general route prescribed in its articles

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of incorporation." In reply to this it is enough to suggest
that tnhe map shows that the new line is within an average distancem
I of half a mile from the old, thus preserving the same general

'route; but to show the very general nature of the route prescribed
in the articles of incorporation, which are a public record, we
quote the 11th article; '

"Art. XI. - The places from and to which and the names

of each county into or through Which the railroad is intended
to be constructed and maintained, and its length as near as
may be, are as follows:

Beginning at a point in Lexington, Fayette Uounty, Ky.:

thence through Fayette and Clark counties to Kentucky Union
Junction on the line of the Elizabethtown, Lexington and Big
fSandy Railway; thence to Clay City; thence via Three Forks
t gthrough Powell, Wolf and Lee counties to a pointflopposite.
: Jackson in breathitt Uounty, being a distance or about 100
miles."

By amendment this was later extended eastward from Jack-
son to the Kirginia line.

Mr. McDaniel next quotes Dection 7b? relative to filing .
maps and asserts that the Lexington & Eastern Railway Company
failed to file such map or this new line. The same statement is
made by Mr. Hyden and he adds that he files a certificate of the
county clerk to that street. It is true that no proof was offered

I by the Railway Company at the hearing upon this question, just as
‘ 55there was no proof or the due incorporation of the company or
iother collateral questions, which were not raised by the pleadings
in the case, but, in view of counsel's statement, and the certifi-
r.cate, all being entirely outsice of the record, We think we are
iyjustiried in making the statement that a mpp of this prOposed
9"?change was in fact filed in the Lee County Clerk's office on
:;August 21, 1912, and duly recorded in Deed Book 18, page 348.
2 As it is impracticable within a reasonable time to get
certified copies of this map from the Olerk, we will content our-

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selves by stating that it is comething over seven feet in length
sets out all the property owners, and contains the following caption;
L. & N. R. R.
L. & E. R. R. ‘
MAP
Showing Old Line and Revision with flight of Way
from Maloney's Dend to Athol.
Lee County, State of Kentucky.
Office of Chief fingr. or Construction,Louisville,Ky.
Scale 1" - 400' Aug. b, 1912.
f It is unnecessary to file a map from Maloney‘s bend to
% EBeattyville Junction because there was no change in the railroad
'.‘-at that place.

I It will be seen that the map, which was filed, distinctly
shows that it relates to the L & E Ry., as its name is used in
the caption, and it referred to the old line and a revision thereof.

; While this was a strict compliance with the law, we do not wish
E to be understood as conceding that the prOV1sion oi the statute
i requiring the filing of this map was anything more than directory.
While the failure to file it might constitute a defense to a con-
demnation suit, or might arrect the validity or the location in
a contest with a rival company, no authority can be round that
q
E it would operate as a surrender or a forfeiture of the right
E230 build a railroad thereon, ii the right of way were purchased,
Eand much less would it aerct the right to operate the line, or
any kindred question, after the road was constructed.

. Taking up the other points in th. Hyeen’s brief, we will
n01lice first his contention that the Commission is without author-
ity to grant the relief sought herein Eggggfifmifimrfi£§§s§ to thel
ais§,<19.nmenwf.,the retireesrether than the_,,§ieiieean It is true
that the statute does not expressly authorize the Railroad Com-

- mission to consent to the abandonment of a portion of a railroad,
abut it does require consent ii the railroad company proposes
;to abandon a passenger station after maintaining it ror five years.

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‘ This being a positive requirement or the statute, the Railway
Company has complied with the strict letter of the statute by mak-
/ ing application to the Commission for this consent. The statute
'é does not prescribe upon what ground the Commission shall give
{ iSs consent. Necessarily, thereiore, it is leit entirely to
;,the discretion of the Commission to deteruune in each instance
g whether the ground presented by the railroad company for
1 such a hearing is a sufficient one. many different grounds could
be imagined, but this would be a useless process, for certainly
g>if a change in the road itself at a point where a station is
2 located is prOper, then certainly it is proper, if not, in fact,
t5 Elegally mandatory, for the Commission to give its consent to the '
abandonment of the station. Counsel ask us to show Specific
authority for the change of the station. We cannot, nor is it
necessary to, show this Specific authority,
and we concede that the Commission could not, against the
will of the railroad company, change a station. Therefore, it
was not necessary in our application that we should make any state-
ment about the re-location of stations Tallega and St. Helens.
It would have been suiiicientl merely to ask leave to abandon
those two stations, as well as Monica, but the railroad com— V
pany voluntarily imposed conditions upon itself that new stations
I in lieu of rallega and St. Helens, and bearing the same name,
should be located at agreed points upon the new line. This was
l a concession to the public by which the railroad company was
bound, and certainly the fact that the Commission orders the
. railroad company to do what it, in street, agreed to do, cannot
:be considered an usurpation of power, because the Commission
. could not have made such an order but :or the railroad Company's consent.
»M‘ Counsel next insist that the Legislature never had in
,EFmind the abandonment of a station because of the change in location
i of a part or the road, when it enacted bection 772, but counsel shows
5 nothing, either in the legislative debates, or otherwise, in support
§ or his statement of the imaginary reasons for the passage of that act.

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f The act is a very broad one, being absolutely without
E qualification. It simply provides that a railroad in order to
abandon a passenger station, whatever may be the cause, must

ootain the consent or the Kentuchymhailroad Commission, the
; official body best prepared to pass upon the prooriety of
asubh an abandonment.

Mr. Hyden next discusses the facts as bearing upon the
different grounds set iorth in the statute for authorizing the
change in road. It is unnecessary to reiterate our references,
supra, to the testimony of Messrs. McDowell, Newman, and Williams,
who establisned, about as fully as could be established with
reference to any railroad, the fact that there were difficult I
grades, dangerous curves, insecure foundations, as well as the
danger to puolic travel incident to the six grade crossings
on the main highway leading to Jackson. They also show that in
this short distance there was a saving of 1.42 miles in length.

On the merits of the case, it is manifest that there
is no opposition at rallega, and that at b‘t. Helens there is involved
only the inconvenience or going a few hundred feet further to the

g ; . I . _ ”,._”, _
':st tion, when all the citizens occupying the 2b houses will still
K? be closer to the new station than 95% of the citizens or a place
, like the city or Louisvirle. rrom Monica, with its 4 houses,
there was practically no complaint. -Another “ontention of Mr.
Hyden‘s is that the Kentucky Statutes, under which we claim au-
thority to maKe this change, did not refer to a constructed road,
_ out related only to changes in the route beiore construction.
We think that the language of the statute itself clearly shows
the unsoundness of this preposition.
: section $67 provides that the "preposed route"of a -
; railroad may be changed without any restriction or assigning any
reasons thereior.

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Section use, in enumerating the powers or a railroad
company provides in sub-section 4 for laying out the rose lUU feet
wine and constructing it.
It then takes up the matter or changes tune:
"and to change, when it ueems proper, the gauge 01 its road."
Clearly this rerers to the constructeo road, because
there is no requirement about stating the gauge at all in eovance
or construction.
There immediately iollows, in this same granting or
authority ior changes, the provision upon which we rely:
"and may, ror the purpose or avoiding annoyance to
_ puoiic travel or oangerous or diriicult or insecure grounds
or foundations, or for any other reasonable cause, Change
the location or grade or any portion or its road; but shall
not, except as otherwise provided, depart iron the general
route prescribed in the articles oi incorporation.”
It is clear that this provision refers to a constructed
road,
1. Because it Iollows immediately the authority to change
the gauge of the road, which reiers to a constructed road. _
2. Because the annoyance to public travel, the eriect or
the grades and curves, ano the condition of the grounds and roun-
dations would ordinarily not be Known or appreciated until aiter the
construction or the road. ‘
I 3. Bepause ii it means merely the change or route berore
, construction.thsgiriéhtlis giVen without restriction Dy section 7b7.
4.J Because the express right granted (ior the reasons named)
is to "Change the location or grade or any portion or its 5323'"
, Grade here obviously reIers to a completed road cecause
f there is no requirement oi the statute relative to kind of grade
to be maintained upon an unbuilt rose.
Since, thereiore, the company has the right to change
its mind relative to grades as Oiten as it wishes before the rail-
road is built, it is maniiest that,ti§ iidii E3 gggg§eat£goé}afie
interpretation, this expreSSly gran e g

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for certain prescribed reasons necessarily relates to a constructed
road. If so, the word "location" applies to the same sort of
road, for the two words are used together-to "change the location
or grade of any portion of its road."
£ Then, too, the use or the word road, instead of route,
is also significant, as 3923 naturally means an actual thing

i rather than a prOSpective thing.

V 5. Because the construction of the road is distinctly pro-
vided for in the same subsection 4 or section 766, before the
provision as to changes of gauge, location, and grade.

The argument of Mr. Hyden as to the proper construction
of section 768 (inadvertently written in the brief 7b9), given
at page ll of his brief, is misleading. There are five sub-sections
to section 768, Which set forth the powers of a railroad. Mr.

Hyden undertakes to state briefly the substance of each or these
five sections, his statements as to the 4th and 5th being con—
iined to quotations, numbering them as shown in the statute. The
first three, relating to surVeys and the receipt of voluntary
donations and acquisitions generally, he correctly abstracts.

gBut his quotations from the fourth and fifth give a wholly erro- I

;neous conception 0f the true meaning and efieot OI those two sub—

: sections.

Out of sub-section 4 he quotes only that part which -
provides for laying out the road and for making these changes in
location and grade, mmitting all the rest of the section, stars

‘ being used to show where omissions occur. He then puts as the
abstract of sub-section 5 merely the words "To construct its road
etc". The impression gained, and undoubtedly intended to be
gained, from this analysis or the live enumerated powers of a
railroad is that the provision ralative to the construction of
the road follows the provision relative to the change of location
and grade, and, hence, that the provision relating to changes
had reference to a prOposed road only and not to a constructed road.

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l The fact, however, is that sub-section 4, which contains
4 {the provision relative to changes, also contains the exoress power

;

{to construct the road, and the provision relative to the construction
or the road comes ahead or the provision relative to the changes.
In other words, it occurs in that sub-section 4 in too first blank
Space indicated in MI. nyden's abstract of it, tnat is, it comes
arter the provision ior laying out the road and just before the

E provision Ior changing the road, which shows that, ii the order or

E arrangement means anything, the change rcIerred to related to a

E constructed road.

The iiitn power, however, or which Mr. Hydcn's brier
only quotes the first four words, namely, "To construct its road
etc", would have been perfectly plain if he had added a half-dozen
more words, which would have shown that it had no relation to the
general power of constructing the road, our related solely to a
Specific power "to construct its road upon or across any water-
course, private or plank road, highway, street, lane or alley,
and across any railroad or canal;".

In other words, the first four sub-sections enumerated

, the general powers, including the general power of construction, -
which precedes the provision relative to changes, and this fifth
power was an additional power, not to construct generally, out to
construct across other highways. The statement of counsel's brief
is so misleading upon this important question as to whether the
changes provided for in sub-section 4 relate to a constructed road,

_ or merely to a proposed route, that we will quote in fullcounsells
abstract oi these two sections in columns parallel to the sub—sections
themselves, in order that the Commission may clearly see ior itself
that the word "construct" enumerated in the Drier as the fifth
power, and coming after "changes" did not relate to general construction
but merely to construction across other hignways, and that the express
provision for general construction immediately precedes that with rer—

' erence to changes, showing, as we have indicated above, that the orovis-
ion relative to changes relates to a constructed road and not merely

 ' o
1 __17-_
to a proposed route;
Mr. Hyden's quotations Sub-sections 4 and 5 in full
(4) To lay out its 4. pgfilayuout its gpadmpot ex-
line of road not exceeding ceeding one hundred feet in Width,
100 feet in width . . . and if more than one track is laid,
and may ior the purpose iirty rest additional ior each track,
or avoiding . . . . . . . and construct the same; and Ior the
dangerous or diriicult purpose or cuttings or emoankments,
curves or grades, or un- and procuring stone, gravel or other
sare or insecure founda— material, or ror the purpose of
tions . .