responsibility for all damages which may be occasioned thereby. This right to hold in abeyance the law of trespass is based on the doctrine of eminent domain.

§ 208. The surveys made, and an exact route agreed upon, the company must, before proceeding to build their line through any county named in their certificate of association, make a map and profile of the route intended to be adopted. The correctness of this map and profile shall be certified by a majority of the board of directors. The same shall then be filed in the office of the county clerk of the county, or with the clerk of the county commissioners court of such county. The whole route need not be profiled and recorded in each county, but only so much as lies in that particular county. All parties interested in the matter can inspect and examine the map and profile, the same as the ordinary public records of a county."

$209. The company is empowered to purchase, hold and use all such real estate and other property as shall be necessary for the construction and use of its railway and the stations and other accommodations necessary to accomplish the object of its incorporation. This general power includes the whole subject of eminent domain. It also contemplates purchase in the ordinary way, and donations. No provision peculiar to railroads is made in regard to purchase, and as for donations, the law reads: "The corporation may take and hold such voluntary grants of real estate and other

2 Gross, vol. i, chap. 81, sec. 58. The survey clause of the law, as found in Gross, vol. ii, makes no mention of filing for public record, but as that provision of the old law is not inconsistent with the new law, it is in force. See repeal clause, Gross, vol. ii, railroads, sec. 196.

property as shall be made to it in aid of the construction and use of its railway, and to convey the same. when no longer required for the uses of such railway, not incompatible with the terms of the original grant."1 The right to convey is the same in the case of purchase. Real estate acquired by the exercise of the right of eminent domain cannot be used for any other than its original purpose.

$210. In laying out its road the company must not claim more than 100 feet in width; but for the purposes of cuttings and embankments it may take as much more land as may be necessary for the proper construction and security of the road. If any trees standing hard by would be in danger of falling upon the track, or in any way obstructing the railway, the company may cause them to be cut down. Compensation therefor must be made in the same method and on the same principle as compensation for land. This tree clause is virtually a police regulation, being designed as a safeguard against railway accidents.

§ 211. In the building of a railway it is often necessary to use more earth, stone and gravel in making the road bed, than the land the company has a right to acquire by condemnation furnishes. To facilitate and cheapen construction, the law provides for the taking of the same by the exercise of eminent domain, in case the parties cannot agree on terms. The provision is that "if such owner and corporation cannot agree, then the value of such material taken. and the damage occasioned to such real estate may be ascertained, determined and paid in the manner that

1 Gross, vol. ii, page 309, sec. 181.

2 Ibid. sec. 182.

may now or hereafter be provided by any law of eminent domain; but the value of such materials and the damages to such real estate shall be ascertained, determined and paid for before such corporation can enter upon and take the same."1 This latter clause is superfluous, as the law of eminent domain requires. pre-payment, or, in case of appeal, a bond equivalent thereto in its certainty of compensation. It should be added that this right to acquire material by condemnation does not extend to fuel and wood.

212. Another construction right specified is the right to "construct its line across, along, or upon any stream of water, water course, street, highway, plankroad, turnpike, or canal, which the route shall intersect or touch." The trustees of the Michigan and Illinois canal once tried to arrest railway construction; but the court held that all grants made by the state, whether to canal trustees or others, although irrevocable, are subject to the right of eminent domain, unless that right is expressly relinquished. We may add that it is an established principle that the right of eminent domain cannot be relinquished.4

§ 213. This right is coupled with a duty. The same section adds: "But such corporation shall restore the stream, water course, street, highway, plankroad and turnpike thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness, and keep such crossing in

1 Ibid. sec. 179.

2 Ibid. sec. 182.

3 Trustees v. Chicago and Rock Island R. R. Co. 14 Ill. 314.

* Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Doe v. Beebe, 13 How. 25; Illinois Central R. R. Co. v. United States, 20 Law Rep. 630.

repair; provided, that in no case shall any railroad company construct a road bed without first constructing the necessary culverts or sluices, as the natural lay of the land requires for the necessary drainage thereof." It will be observed that in this restoration. clause no mention is made of canals. From the language of the court in the case of the Chicago and Rock Island railroad company, just referred to, it would seem evident that the railroad company may not, in any way or for any length of time, interfere with the actual operations or stability of a canal.

1

$214. A further limitation is placed upon the foregoing right. The construction of a bridge or of any other obstruction over any stream navigated by steamboats is not authorized. Legislation on that subject is provided in a separate statute. Nor is authority given to construct any railroad upon or across any street in any city or incorporated town or village without the assent of the corporation of such city, town, or village. This qualifying section ends by adding: "Provided, that in case of the constructing of said railway along highways, plankroads, turnpikes, or canals, such railway shall either first obtain the consent of the lawful authorities having control or jurisdiction of the same, or condemn the same under the provisions of any eminent domain law now or hereafter in force in this state."

§ 215. It is not enough to have the right to acquire the land of private persons and cross highways, streams, etc. It often happens that in the construction of a railroad the new line intersects with existing lines.

The Chicago, Burlington and Quincy, for instance, is crossed in this state by other lines twenty-one times. As these routes, in many cases, are natural rivals, the general assembly has expressly authorized any railroad corporation, in building its line, to cross as often as may be necessary existing railroads; also, upon the grounds of existing railroads, to construct all necessary turnouts, sidings, switches, and other conveniences.

§ 216. The old road is required to unite with the new in constructing the facilities for a mutual interchange of business and convenient transfer of cars. Nothing is allowed on the part of one railroad toward another which would retard its construction and impede its operation. If the two corporations cannot agree upon the amount of compensation to be allowed for the property used, or upon the points at which the crossings shall occur, and the manner thereof, the matter shall be arbitrated on the plan laid down in the law of eminent domain. It should be mentioned in this connection that an act of congress passed July 15, 1862, authorizes and requires railroads to carry passengers and freight from one state to another, and connect with other roads for such purposes. This law is, by its express provisions, repealable at the discretion of congress, but it is still in force. The earliest mention of railways in the legislation of this state is a resolution for the extension of Illinois railroads into Indiana. 1

§ 217. A road bed is by no means all of a railroad. Besides the rolling stock and the bridges over naviga