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shire Rail-road Corporation, herein after set forth, covenant and agree to and with said Berkshire Rail-road Corporation, as follows:
1st. The said Berkshire Rail-road Corporation shall have the right and privilege to run a passenger train over said West Stockbridge Railroad, from the village of West Stockbridge to its junction with the Western Rail-road at the “State line," once a day, each way, in each and every year hereafter, during the existence of said Corporations, from the time of the opening of navigation in the spring, of the Hudson River, to Albany, for steamboats, to the time of the closing of said navigation in the fall of each and every year hereafter, as aforesaid.
2d. From the time of the closing of the navigation of the Hudson River, by steamboats, to Albany, in the fall of each and every year hereafter, to the time of opening of said navigation, so that steamboats shall run to Albany in the ensuing spring, the said Berkshire Railroad Corporation shall have the sole and exclusive use of the said West Stockbridge Rail-road, its depot buildings, (except the office now occupied by the Hudson and Berkshire Rail-road Company), the turn-round and fixtures, with liberty to use said rail-road, depot buildings and fixtures, for doing their business, both in passengers and freight, without interference or obstruction from said West Stockbridge Rail-road Corporation, or any person claiming under them.
The said Berkshire Rail-road Corporation in consideration of the foregoing, doth hereby covenant and agree to and with said West Stockbridge Rail-road Corporation, as follows:
1st. The said Berkshire Rail-road Corporation will pay to the said West Stockbridge Rail-road Corporation, as a compensation for the use of the road as aforesaid, at the rate of fifty dollars per month, for such portion as said company shall have a right to run merely a passenger train over said road as aforesaid; and at the rate of one hundred and fisty dollars per month, for such portion of the time as said company shall have the privilege of the sole use of the said road, with its depot buildings and fixtures, (excepting the office) as aforesaid : said payments to be made monthly, to the treasurer of said West Stockbridge Rail-road Corporation, at his office in the village of West Stockbridge, whose receipt shall be a full discharge therefor.
2d. The said West Stockbridge Rail-road shall be kept in suitable repair for running, at the joint expense of the said West Stockbridge and Berkshire Rail-road Companies, during the continuance of this
contract, each party paying one moiety of the expense of repairing
The manner of making such repairs shall be as follows: Immediately after the opening of navigation of the Hudson River to Albany, in the spring of each year, either party, by, its agent, or superintendent, or president, may give notice to the superintendent or president of the other, fixing a day at least six days distant, for meeting at the depot at West Stockbridge, for the purpose of arranging for making repairs for the year then ensuing. Said parties, when met by their
agents, shall then each make offers to the other, of a sum for which the party offering will agree to keep said road in suitable running condition, during the year then ensuing; and after bidding till the lowest offer is obtained, such lowest offer shall be fixed as the price of such repairs for the ensuing year, to be made by the party making such offer; and a disinterested individual shall be then agreed upon by the parties, or if they cannot agree, each party choose one, and the two thus chosen choose a third, who shall be referees during that year, to decide at any time during that year when called on, whether said road is in suitable running repair; and if such referee or referees shall at any time decide that said road is not in suitable running repair, the party whose duty it is for that year to make such repairs, shall forthwith proceed to make such repairs, to the satisfaction of said referee or referees, and shall be liable for all damages that may accrue to the other party, through his neglect so to do. It is further agreed that either party may, at any time during the continuance of this contract, relay the track of said West Stockbridge Rail-road, with a heavy, permanent iron rail : and in such case, the party so doing, shall there. after have the right to keep said road in repair during the remainder of the term, and the other party shall pay, as its half of the expense
of the repairs annually, one half of the sum which the cost of repairs of said road, shall have averaged per year, from the time of the commencement of this contract, to the time of such relaying of said track.
Said Berkshire Rail-road Corporation doth further agree that the charges for transportation of passengers or freight, during the continuance of this contract, shall be the same in either direction, between West Stockbridge and any way station on said Berkshire Rail-road, and shall not exceed the charges for passengers, or for similar freight, from the same station, for the same distance south,
And said West Stockbridge Rail-road Corporation doth also agree that the charges for freight and passengers, over said West Stockbridge
Rail-road shall be the same in either direction, and that the charges for freight shall not exceed the rate charged per mile for similar [ ] for the same distance, on the said Berkshire Rail-road, during the period of navigation of the Hudson River.
It is further agreed, that if said West Stockbridge Rail-road Company shall choose to run trains over their road during that portion of any year, in which by the terms of this agreement, said Berkshire Railroad Company would be entitled to the exclusive possession of the same, they shall have the right so to do; but in such case they shall at all times leave a clear track for the regular trains of the said Berkshire Rail-road Company; and said Berkshire Company, during the time said West Stockbridge Company shall so run, shall be liable 10 pay only at the rate of seventy-five dollars per month for the use of said road.
And said Berkshire Rail-road Company do agree to furnish such a turn-out at State line, as their convenience may require.
And said West Stockbridge Company do agree to leave the depot at State line in five minutes after the morning train of the Western Rail-road from Albany shall leave the depot for the east, and leave a clear track, the whole length of the West Stockbridge Rail-road to its junction with the Berkshire Rail-road, in fifteen minutes after leaving the State line: provided, however, that if the Western Rail-road train shall arrive at the State line from Albany, and leave their passengers, and the train of the West Stockbridge Company is not in sight, then the Berkshire Company may take the main track, and run directly to West Stockbridge. And the West Stockbridge Company do agree that the afternoon train over the Berkshire road shall have a clear track, from West Stockbridge to State line, so as to connect with the evening train on the Western Rail-road, from Boston to Albany.
It is further agreed between the parties, that if said West Stockbridge Rail-road Corporation choose to lease perpetually to said Berkshire Rail-road Corporation, the whole of said West Stockbridge Railroad, with its depot buildings and fixtures, to the sole and exclusive use of said Berkshire Rail-road Corporation : then said Berkshire Railroad Corporation shall be bound to accept such lease, and thereafter keep said road, buildings, and fixtures, in suitable repair, and to pay an annual rent for the use thereof, at the rate of eighteen hundred dolJars per year, and this contract shall thereupon terminate.
And if, at any time during the continuance of this contract, said West Stockbridge Rail-road Corporation shall desire to sell said rail.
road, with its depot buildings and fixtures, they shall offer the same to said Berkshire Rail-road Corporation, at the sum of thirty thousand dollars; and said Berkshire Rail-road Corporation shall elect within three months after said offer, whether they will purchase or not, and give notice to said West Stockbridge Company of their election. If they elect not to purchase, then said West Stockbridge Company shall be at liberty to sell said road, buildings and fixtures, to any other person or company; but said Berkshire company are to continue in the possession and enjoyment of all the rights and privileges given thein by this contract, till the opening of the navigation of the Hudson river, in the spring next after said West Stockbridge Rail-road Company shall bare made a bona fide sale of said road, buildings and fixtures, and no longer.
If said Berkshire Rail-road Corporation elect to purchase said road, buildings and fixtures, and so give notice within three months as aforesaid, then this contract is not to terminate, nor possession under it to be changed, till the opening of navigation of the Hudson river in the spring next after the expiration of six months from the time the West Stockbridge Company shall have given notice of their intention to sell as aforesaid ; at which time of opening of navigation, last above-mentioned, said Berkshire Rail-road Corporation shall take possession of said property, under said purchase, receive proper conveyances thereof, if not previously given, and give proper obligations, or the payment of said sum of thirty thousand dollars, in three instalments of ten thousand dollars each, payable at one, two, and three years from said date, with interest. And it is understood that the property contemplated in the above sale, includes the depot ground commonly used, around the de. pot at West Stockbridge, with the engine house and turn-round.
And it is further understood and agreed between the parties, that if the Berkshire Rail-road Corporation shall fail to make any payment to the West Stockbridge Rail-road Corporation, which, by the terms of this contract, they are required to make, for more than thirty days after the same shall become due and payable, then the said West Stockbridge Corporation shall have a right to terminate this contract. And it is further agreed between the parties hereto, that the party making the repairs of the road, in the manner provided in this contract, shall receive from the other party, each year, one half the amount for which the same is to be repaired, in four equal quarter-yearly payments to be made at the depot in West Stockbridge, to the treasurer or agent of the party receiving the same.
And it is further agreed, in modification of the foregoing stipulations respecting the occupation of the buildings and depot ground, that the West Stockbridge Rail-road [Corporation) does hereby reserve the right to use and occupy one half the rag-house, the east platform in the inain depot, and the ground commonly heretofore used by the Hudson and Berkshire Railroad Company for piling wood and iron, exclusively during the closing of the Hudson river, for each and every year hereafter, during the continuance of this contract--and the sole use of the engine house, while they shall run trains over said West Stockbridge Rail-road : and the said Berkshire Rail-road Corporation shall have the use and occupation of the office now occupied by Housatonic Railroad Company, and of one third of the rag-house, for that portion of the year when the navigation of the Hudson river is open to Albany, during the continuance of this contract, and shall erect a building between the main depot and their track, sufficient to accommodate as much freight as the west platform in said depot.
And the said Berkshire Rail-road Corporation doth covenant and agree with the said West Stockbridge Rail-road Corporation, that they will defend the said West Stockbridge Rail-road Corporation against any action or indictment which may be brought against said West Stockbridge Corporation, in consequence of any fault or neglect of the said Berkshire Rail-road Corporation, its servants or assigns, whether said action or indictment is brought at common law, or under any statute of the Commonwealth of Massachusetts, and to indemnify the said West Stockbridge Corporation against all damages which shall accrue to them by reason of said action or indictment, except the said action or indictment shall arise in consequence of the neglect of the said West Stockbridge Corporation to fulfil the agreements by them made in this contract.
It is understood by the parties to this contract, that the Berkshire Rail-road is leased by a perpetual lease, to the Housatonic Rail-road Company, and that the trains now run upon said Berkshire Rail-road and over the West Stockbridge Rail-road, are run in fact by the managers of the Housatonic Rail-road, under said lease; and it is expected by the parties to this contract, that said managers of the Housatonic Rail-road, or said Housatonic Rail-road Company will continue to occupy and use said Berkshire Rail-road under said lease, so long as they fulfil the conditions thereof; and that while so running, they are to enjoy all the rights and privileges, and be subject to the restrictions herein given to, or imposed on said Berkshire Rail-road Company, as