As to the control of streets by council, see 3 2640.

Power given by a charter of a railway company to construct its road across a public highway upon condition that the same be restored to its former state, "or in a sufficient manner not to impair its usefulness," does not authorize the company permanently to appropriate any portion of the highway by obstructions which materially interfere with public travel: Railroad Co. v. Commissioners, 31 0.8. 338.

The limitation of two years within which an action must be commenced, applies only in cases where a railroad is constructed in a highway or other public ground, under an agreement with the public authorities, or after condemnation, as provided in said section: Railroad Co. v. Cobb, 35 0. 8.94.

Where a railroad company has not procured the right to occupy the highway in question, in either of the modes indicated in this section, the remedy provided by the section for injuries done to private property by the occupancy of the highway, is not applicable: Railroad Co. v. Williams, 35 O. S. 171.

A property owner, owning property not abutting on the street appropriated, but on a street "near thereto," is within the purview of this section: Railroad Co. v. Mowatt, 35 O. S. 287.

Where an action is brought by a property owner, as provided in 3283, against a railroad company, for damages caused by it in occupying a public street, in pursuance of authority from the proper officers of a municipal corporation, the time within which the action must be brought is two years, and not four years: Ib. 284.

It is not within the power of a municipal corporation to confer upon the plaintiff the right to use its streets for railroad purposes, to the exclusion of all other persons or corporations, if the public welfare or convenience should require a further similar use: Railroad Co. v. Railroad Co., 36 O. S. 251.

In the absence of stipulation, the municipal authorities have no power to fix the compensation to be paid for the use of a track belonging to another person or corporation. Such compensation must be assessed by a jury, as in other cases of condemnation of private property: Ib. 252.

A village council and railway company agrees to the terms under which the company may use streets, the company binding itself to grade streets, etc. An ordinance repealing the contract ordinance, passed to rescind the entire contract, is inoperative against the company, and also inoperative to release company from its obligations to grade, etc; Railway Co. r. Village of Carthage, 36 O. S. 631.

The board of public works of the state is not authorized by law to grant to a railroad corporation the right to lay its track and to maintain and operate a railroad on and along the berme bank of a navigable canal belonging to the state: State ex rel. v. Cincinnati Central Railway Co., 37 O. S. 158

If a railroad company is unable to agree with those in charge of this species of property, it may resort to the courts, in accordance with the terms and provisions of 6414-6453, Revised Statutes: Ib. 170.

The canals of the state are not included within the terms of this section: Ib. 171.

This section confers upon the corporation the same power to acquire this class of public property, either by agreement with the proper authorities or by appropriation as it possesses under ? 3281, as to private property: Ib. 170.

See note to Railway Co. v. Lawrence, 38 O. S. 41, under 6414.

A city is not liable to the owner of a lot, adjacent to the street, for damages to his property, resulting from the use of the street by the railroad, in the manner authorized by this section: Dillenbach v. Xenia, 41 O. S. 207.

In estimating damages to abutting property, it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large), caused by smoke, noises and sparks of fire occasioned by running of locomotives and cars along the track in front of the property: Railway Co. v. Gardner, 45 O. S. 309.

SEC. 3284. [May divert road or stream when necessary.] A company may, whenever it is necessary in the construction of its road to cross a road or a stream of water, divert the same from its location or bed; but the company shall, without unnecessary delay, place such road or stream in such condition as not to impair its further usefulness, and any or all railroads hereafter constructed, which shall cross any avenue or public highway leading from a city of the first or second class to a public cemetery of such city, situate within or without the limits of any such city, shall be constructed so as either to pass under or over such avenue or public highway, at such elevation or depression as the case may be, as will allow the unobstructed passage of all wagons, carriages, or other vehicles which it may be necessary for any person to use upon such avenue or public highway. [50 v. 274, 16; S. & C. 279.]

Under the thirteenth section of the act of May 1, 1852 (50 v. 274), it is the duty of a railroad company to restore a highway, diverted in the construction of its road, to such condition as not to

impair its former usefulness, and it is liable for injuries resulting from its neglect to do so; but when the highway has been fully restored, the corporation is under no obligation to keep the same in repair: Railway Co. v. Maurer, 21 O. s. 421: Potter . Bunnel, 20 O. S. 150; but if, after the restoration of the highway, the railroad company wrongfully encroaches upon it, or impairs its usefulness, it will be held liable for damages resulting from such encroachment or impairment: Railway Co. r. Maurer, supra.

The right of a railroad company to enjoy the use of its road at the crossing of a common highway, and the right of the traveling public to use the highway, are co-ordinate and equal, and reasonable care and prudence must be exercised by each, in the use of the crossing, so as not to interfere unnecessarily with the other: Ib.

A corporation owning and operating a railroad which crosses a common highway, is under Do obligation to remove from the highway obstructions placed on the crossing by a stranger, if the material constituting the construction is neither the property, nor under the care and control, of the corporation, although the existence of the obstruction is brought to the knowledge of its agents; nor does such obligation exist, although the person so placing the obstruction be a brakeman on the company's road, and the material constituting the obstruction be waste manure from the stockcars of the company, if the brakeman so placed the manure for his own use, without the authority of the company, and at the time was not acting within the scope of his employment and duty of brakeman: Ib.

Where the diversion of a stream of water from its existing bed or course becomes necessary in the location and construction of a railroad, the power to appropriate land on or through which to construct a new channel for such stream is conferred by 10 of the General Incorporation Act (1 S. & C. 279): Railway Co. v. Bohm, 34 O. S. 114.

The requirement to place a highway crossed "in such condition as not to impair its former usefulness." is a condition continuing while the company continues to exercise its franchise. State may compel performance by petition presented by the attorney-general; court may enjoin company from using the highway, where it has been diverted and left in a dangerous condition, and prescribe what change in location shall supercede the injunction. The company, on refusal to restore the highway to its former usefuluess, may be enjoined from further work on the highway, and required to remove obstructions already placed thereon: State ex rel. v. Railroad, 36 O. S. 434.

The remedy given to county commissioners, under 2 863, Revised Statutes, for the obstruction of a county road, is cumulative, and does not affect the right of the state to maintain an action: Ib. 434. Steam railways can only cross streets of a city by consent of city authorities or by appropriation: Cincinnati Northern R. R. Co. v. City of Cincinnati (Ham. Dist. Court), 8 W. L. B. 335.

This section imposes a personal duty on the railroad company of care and diligence to the puble: and the contractors whom it may employ to do the work, are simply its agents and servants, and it is responsible for their negligence: C., H. & D. R. R. Co. v. Van Dorn, 1 C. C. 292.

A cemetery situate in a city of the second class, belonging to a private association, organized under the act of February 21, 1848 (S. Stat. 169), is not a public cemetery of such city, within the meaning of this section: Youngstown v. Railroad Co., 3 C. C. 214.

This section does not authorize a railroad company to construct and maintain its road across a street of a city, without consent of the city authorities, or without appropriating the right to do so; such right can be obtained only by agreement with the city authorities, or by appropriation, as provided in 3283: Ib. Woodbury, J. dissented.

SEC. 3285. [May construct its bridges as toll bridges; tolls thereon.] It may so construct its bridges as to answer the ordinary purposes of travel and business, as well as for railroad purposes, and may demand and receive such rates of toll for the passage of individuals, vehicles of all kinds, or animals, as it may fix, subject to the approval of the commissioners of the county or counties in which such bridge is erected; but the rates of toll must be uniform, shall be printed or painted, and kept conspicuously posted in or near the toll-house of the bridge, and may be revised and changed in the first week in each year; and the company may compound and bargain with any person or party for the use of such bridge, by the month, quarter, or year; but no company shall receive toll upon any such bridge if erected within one mile of any toll bridge previously constructed over the same stream. [51 v. 415, 1; S. & C. 323.]

SEC. 3286. [May issue bonds for certain purposes, and secure same by mortgage.] A company may issue bonds, convertible or otherwise, bearing a rate of interest not exceeding seven per centum per annum, to an amount not exceeding two-thirds of its capital stock, actually subscribed, for one or more of the following purposes: Completing or extending its road, constructing branch roads, laying double or additional track, increasing its machinery or rolling-stock, building depots or shops, making improvements, paying its unfunded debts, or redeeming its bonds; and it may secure the

bonds issued for such purposes by mortgage on its property, or otherwise, if authorized by the vote, in person or by proxy, of holders of a majority of the stock upon which all the installments called for by the board of directors have been paid; but such vote shall be taken at a meeting of stockholders, of which thirty days' notice shall be given. [73 v. 25, ? 5; S. & S. 123; S. & C. 323.]

For "an act to authorize narrow gauge railroad companies having a road partially constructed to issue bonds," etc. (77 v. 164), see (8516-26) et seq.

Where, in bonds issued by a railroad company, and in the deed of trust securing them, it is stipulated. that interest not exceeding a fixed rate shall be payable at stated periods out of the net income of the company, interest for a period in which there is no net income applicable to its payment will accumulate and become a charge upon income subsequently realized, unless it affirmatively appears from the instruments that this would be contrary to the intention of the parties: Railroad Co. v. Shoemaker, 3 C. C. 473.

SEC. 3287. [May borrow money, and secure the same by pledge of its property.] A company may borrow money at a rate not exceeding seven per centum per annum, for any purpose that the same may be needed in its business, and execute bonds or promissory notes therefor in sums of not less than one hundred dollars; and it may secure the payment of such bonds and notes by a pledge of its property and income; but the aggregate indebtedness authorized by this and the preceding section shall not exceed the amount of the capital stock of the company. [50 v. 274, % 14; S. & C. 279.]

See 3309a.

SEC. 3288. [How mortgage or pledge may be made.] Such mortgage or pledge may be made by the company executing a deed of mortgage, or other instrument in writing, for the purpose of securing the payment of the loan of money made, or the notes, bonds, or other evidences of indebtedness issued by the company, which mortgage may include the personal as well as the real property of the company. [51 v. 332; ¿ 1; S. & C. 322.]

See ? 3309a.

Certain persons, their associates, successors, and assigns, were "created a body corporate, with succession, with power to sue and be sued, plead and be impleaded, defend and be defended, contract and be contracted with, acquire and convey, at pleasure, all such real and personal estate as may be necessary and convenient to carry into effect the objects of the incorporation;" the corporation was authorized to construct and maintain a railroad between certain termini, and to demand and receive, for the transportation of persons and property, a compensation not exceeding certain specified rates; and it was also authorized to appropriate, by proceedings under a general law regulating such proceedings, lands necessary for its railroad track, the property of individuals: Held

1. That, under these general powers, the corporation had no power to alienate the franchise to be a corporation, or the franchise to construct and maintain a railroad, and receive compensation for the transportation of persons and property, nor any interest in real estate acquired and held solely and exclusively for the purpose of the exercise of such franchise.

2. That, after the railroad had been constructed and prepared for use, things requisite for that use, such as locomotives, cars, and the like, not affixed to the land, being acquired by the corporation, are to be regarded as personal property, subject to alienation, and liable for debts.

3. That the corporation could not make a mortgage of any property, such as the above described, to be subsequently acquired, so as to give it validity, in other manner, or to a greater extent, than an individual owner of personal property: Coe v. Railroad Co., 10 O. S. 372.

The corporation had a grant of power to borrow money, not exceeding its capital stock, at a rate of interest not exceeding seven per cent., and to execute bonds therefor, and to secure the payment thereof by a pledge of the property and income of the company; and a subsequent grant of a like power, and the authority to pledge, was expressed to be by " mortgage or otherwise, the entire road, fixtures and equipments, with all the appurtenances, income and resources thereof: " Held

1. That, under the power thus granted for the special purpose of borrowing money, the company could not mortgage the franchise to be a corporation, appertaining to the individual members of the corporation, but could mortgage the franchise of the corporation to maintain the railroad, and receive compensation for the transportation of persons and property, and could mortgage property connected with the railroad and the use of its franchise, whether real or personal, to be subsequently acquired.

2. That the power which the company had to institute a judicial proceeding to appropriate private property was not transferable, and that the mortgage of the company could give no right to the exercise of such a power, which the provisions of the general law on the subject did not authorize.

3. That the execution of a mortgage by the company, under such special power, could give no exemption of its personal property from a liability which might be otherwise created by its own act, or a judicial proceeding, that the execution of a like mortgage upon personal property, by an individual, would not create: Ib.

The company issued bonds, and executed mortgages to secure their payment, under its special power; the bonds were made payable ten years after their date, with interest at the rate of seven per cent., payable semi-annually; and they were negotiated by the company at a discount, and a part of them were exchanged for iron rails: Held

1. That it was a proper exercise of the power to make the interest on the bonds payable semiannually.

2. That the act of March 3, 1851 (49 v. 94), which authorized the directors of the company to sell or negotiate the bonds issued by the company, at such rates as they might think proper, and which provided that the bonds so sold should be as valid, in every respect, as if sold at their par value, applied both to the bonds and its security given for their payment; and, therefore, the sale of the bonds at a discount did not render invalid the mortgages.

3. That the company having received authority to sell the bonds at less than their par value there could be no ground for prohibiting an exchange of the bonds for iron rails, and the fact of such exchange, or the intention to make it, did not invalidate the bonds or the mortgages: Ib.

The company executed three mortgages upon its property and income, the property in possession and to be acquired; two of these mortgages were properly executed and recorded, but the second in order of time, executed in New York, and acknowledged before an Ohio commissioner in that state, had but one witness; and the third or subsequent mortgage was expressly made subject to the first and second: Held, that whether the second mortgage be regarded as creating a legal or equitable claim, it was entitled to a priority over the third: Ib.

A creditor having been permitted to levy an execution upon a part of the personal property, including a portion acquired subsequently to the date of both the second and third mortgages, but this levy having been made after the action was brought, and while the property was in the hands of a receiver appointed in the case: Held, that as against even the equitable claim of the second mortgage, the creditor was not entitled to a preference: Ib.

The consideration of the debt for which the creditor recovered judgment was for money advanced in payment of interest for the company, and taxes assessed against the company, and for rights of way paid for by the creditor: Held, that such consideration of the debt due from the company created no equitable claim upon the property conveyed by the mortgages: Ib.

The mortgages executed by the company were to trustees for the benefit of the holders of the bonds; they provided for the payment of the interest and principal of the bonds, and contained a defeasance; the instruments also purported to give to the trustees an authority to sell the property, upon conditions, at a place, and in a mode prescribed; and the action was brought to obtain and the relief asked was, a sale under the order of the court: Held

1. That the parties were entitled to such sale.

2. That the property must be sold as real and personal, and that the real estate must be sold according to the rules governing sales of real estate, and must, therefore, be appraised.

3. That the railroad, with its fixtures, constituting an entire tract of real estate, indivisible for the purpose of the sale, together with the franchise connected therewith, should be sold in like manner as an entire tract, lying in two or more counties, and the proceedings incidental to the sale should be had in the county in which the action was brought.

4. That the personal property should be sold as personal property, but might be sold with such precautions to prevent a sacrifice, and to produce the highest price, as the court, in its discretion, might order.

5. That the mortgagees must be regarded as proceeding on that part of the instrument which operates as a mortgage, and not under the power to sell, and therefore, the court would not be authorized, in this action, to charge upon the proceeds realized by a sale an allowance for the trouble of such mortgagees, or the fees of their counsel.

6. That the mortgagees represented the bondholders, and the latter were neither necessary nor proper parties to the action, and that any question as to the amount for which the security would be available, must be made with the mortgagees, by an issue in the action.

7. That the mortgagees, as between them and the company, would be authorized to receive the proceeds of the sale, but the company would have the right to require that, upon or before payment of the proportion payable upon any bond, it should be produced, and if paid in full, canceled, or if paid in part, such payment to be credited.

8. That any question as to the party entitled to receive the money on a bond, or as to the proportion payable on any bond lost or destroyed, or questions which may arise between the mortgagees and any bondholder, need not be anticipated by any order to be made in the action between the present parties, but should be disposed of when they arise in another action, or in a supplementary proceeding.

9. That an order made requiring the bondholders to prove their claims, and state the amount paid for the bonds, was erroneous: Ib.

A railroad corporation executed a mortgage for money borrowed upon its road and equipments; the loan was for a long period, but the interest was to be paid semi-annually; the corporation had, by the terms of the mortgage, the possession and use of the road until default in payment of interest; there had been no default, and a creditor recovered judgment, and levied an execution upon a part of the equipments of the road; and the mortgagee filed a petition to obtain a perpetual injunction, upon the ground that the use and possession of the road were indispensable to enable the corporation to raise money wherewith to pay the interest as it became due: Held, that such an averment did not show a sufficient ground for an injunction: Coe v. Knox Co. Bank, 10 O. S. 413.

A mortgage by a railroad company, deriving its powers under the act of February 11, 1848 (46 v. 40), although i may cover property connected with the use of its franchise to be subsequently acquired, does not operate to exempt such property, in its nature personal, and while it remains in possession of the corporation, from being levied upon by judgment creditors of the company: Coe v. Peacock, 14 O. S. 187.

A power inserted in a mortgage authorizing the mortgagee, upon default of payment, to take possession of the railroad and other property connected therewith, and use or sell the same, must be exerted upon all the property mortgaged, and does not authorize the mortgagee to detach portions thereof, either from the possession of the company, or an officer succeeding to its rights, by valid levy thereon: Ib.

The damages given by the statute to the defendant, in an action of replevin brought by the mortgagee against the officer, when it appears that the mortgage lien upon the property exceeds its value, is not the value of such property, or the amount of the execution levied upon it, but nominal merely: Ib.

Mortgages of railroad companies, executed under statutory provisions authorizing them to pledge their "entire roads, franchises, fixtures and equipments, with the income and resources thereof, together with the capital stock," and declaring that such mortgage shall be "a good and substantial lien, as well upon the personal as real property of the company," where they contain apt language to that effect, attach to and cover future acquisitions of property for uses of the road: Coopers v. Wolf, 15 O. 8. 523.

The cast-off articles, fragments and old materials once forming part of the road, or used in its operation, still continue under the mortgage if a proper and judicious management of the road requires that they should be re-cast or exchanged for new articles for the uses of the road: Ib.

Where the amount of such mortgages exceeds the entire value of the mortgaged property, only nominal damages can be recovered against the sheriff for refusing to levy upon and sell the property ou executions against the company: Ib.

A mortgage executed by a railroad company on "the road" of the company, "whether made or to be made, acquired, or to be acquired, and all property, real or personal," of the company, "whether now owned or hereafter to be acquired, used, or appropriated, for operating or maintaining the said road," is not a lien upon real estate of the company, then owned or afterwards acquired which has not been used or appropriated for operating or maintaining the road: Walsh v. Barton, 24 O.S. 28.

Where, in a mortgage, the property is described as "all the railroad of the party of the first part, built and to be built," from F. to the city of Y., the mortgage will cover a part of the road subsequently built from the city limits to a point inside the city, originally intended as the place for the depot at Y., as being within the termini named, although the road has been built and operated from F. to the point on the city line for several years before the mortgage was given; and the mortgagee will not be stopped, as against judgment creditors of the company, to show a resolution of the directors authorizing the execution of such mortgage, by reason of an erroneous recital of the resolution in the mortgage as authorizing the giving of the same upon the railroad then completed only; Hatry v. Railway Co., 1 C. C. 426.

...........together

A mortgage purporting to cover "all the railroad of the party of the first part.. with all the tolls................and all and singular the franchises of the party of the first part, all lands, ......cars, rolling stock and apparatus, and property of every kind or description used in connection with said railroad," does not convey lands held by the railroad company which have never been used in connection with such railroad: Ib.

But such mortgage does cover a steam-tug, used in connection with such railroad, and necessary for the transaction of the business of the company at the terminal point of such railroad on Lake Erie: Ib.

See this case in extenso for statement of fact, under which a judgment creditor of the railroad was held to have an equitable lien, in the nature of a vendor's lien, upon the property of the railroad company, in the hands of a purchaser, superior to a mortgage; and in what kind of action, and at whose instance such lien may be enforced. And also, in regard to conflicting claims between creditors of the old company and mortgagees of the new one: Ib.

SEC. 3289. [Where such mortgage to be recorded.] It shall be held to be a sufficient record of any such mortgage, heretofore or hereafter made, if the same is recorded in the office of the recorder of deeds in each of the counties in which the real or