and to issue in exchange therefor the like additional
amount of its own capital stock at par, or on such
other terms and conditions as may be agreed upon
between the two corporations; and whenever the
greater part of the capital stock of any such corpo-
ration shall have been so surrendered or transferred,
the directors of the company taking the surrender
may,
by a resolution entered upon their minutes,
elect to become directors of the leased road; and
thereafter they are declared by the statute to be
ex officio the directors of the corporation whose
road is so held under lease; and they are empowered
to manage and conduct the affairs thereof, as pro-
vided by law. It is further enacted that whenever
the whole of the capital stock shall have been so
surrendered or transferred, and a certificate thereof
filed in the office of the Secretary of State, under
the common seal of the corporation to which the
surrender shall have been made, the franchises,
privi eges and property of the other company shall
thereupon vest in the latter and be controlled by
its board of directors and under its corporate name.
But it is expressly declared that the rights of any
stockholder not surrendering or transferring his
stock shall not be in any way affected by these pro-
visions; and that existing liabilities, or the rights
of creditors of the corporation, when stock shall
have been so surrendered or transferred, shall not
be in any way affected or impaired by the act.'

horized

lessors k, anr under a

Or of the

is auth

ransfer anr of

ld under

1 N. Y. Laws of 1867, ch. 254, § 1, as amended by N. Y. Laws of 1879, ch. 503. See also N. Y. Laws of 1855, ch. 302.

§ 568. Of the effect of lease.-A lease of railway property generally entitles the lessee to the

free use of the railway comprised therein, and to the enjoyment of the powers and privileges g anted to the lessor, and at the same time subjects the lessee to the corresponding duties and obligations of its lessor except such as are purely personal in their nature. Thus, a lease of a line of railway has been held to entitle the company becoming lessee to the benefit of an agreement entered into by the lessor for the use of a part of a third company's line.2 So, under an agreement by one company to work and maintain the line of another company, the working company is entitled to exclusive possession. When a railroad company leases the road of another, its charges for transportation thereon are subject only to the restrictions imposed upon itself with respect to transportation upon its own line.* A company leasing a railway in another State, is subject to the legislation of that State so far as it affects the property leased.5

3

1 Chicago v. Evans, 24 Ill. 52; London etc. R'y Co. v. South Eastern R'y Co. 8 Ex. 531; 8 Vict. ch. 20, § 113.

2 London etc. R'y Co. v. South Eastern R'y Co. 8 Ex. 584.

3 Sevenoaks etc. P'y Co. v. London etc R'y Co. 11 Ch. Div. 625; 27 Week. R. 672. As to the effect of covenants in a lease by one company efficiently to work and repair the railway and works, see West London Ry Co. v. London etc. R'y Co. 22 Law J. Com. P. 117; 11 Com. B. 327; East London R'y Co. v. London etc. R'y Co. 2 Nev. & M. 413. As to the construc

tion of a lease providing that the lessee should place to the account of the lessors a due mileage proportion of the gross receipts derived from through traffic, see Salisbury etc. R'y Co. v. London etc. R'y Co. 3 Nev. & M. 314; Browne & Theobald's Railway Law, 317.

4 Rodgers v. Wheeler, 43 N. Y. 598; Pearson v. Wheeler, 55 N. π. 41; Taylor on Corporations, § 417. Cf. Stratton v. European etc. R'y, 74 Me. 422; Beeson v. Lang, 85 Pa. St. 197.

5 Stone v. Illinois Central R. R. Co. 116 U. S. 347.

§ 569. Of the effect of lease upon liability for torts. A railway company cannot, without legislative authority, by a lease of its road exonerate itself from liability to persons sustaining injuries

6

through its negligence.' The lessee company is not liable for the torts of the lessor committed prior to its taking possession of the property, nor indeed for such injuries to property and person occurring after possession as are occasioned by the fault of the lessor,' such, for example, as occur through a defect in the original construction of the road. But the lessee is liable for any injuries after it enters into possession, arising from its failure to keep the property in repair, as, for example, from its own failure to keep the tracks in good condition, or from its neglect to build and maintain cattle-guards. In New York the lessees of railroad corporations are required by statute to maintain fences and cattle-guards at appropriate places. And the lessee is liable for injuries inflicted through the negligence of its employees in the management of trains,' unless it be operating the road under the name of the lessor.8 Where the arrangement between the companies amounts merely to a license permitting one of them to use the property of the other, the licenser is liable for the torts of the licensee Thus, a railroad corporation that has granted the use of its road to another company, will be liable for accidents to passengers carried by itself, caused by the negligent management of the trains of the other company.10 In a case decided recently in Georgia, it was held that the lessor of running privileges would be liable in damages for injuries sustaine l in an accident occurring to one of its lessee's trains occasioned by the unsafe condition of its tracks, but that for injuries caused by defective trucks of the lessee's cars, the latter only would be liable;

and that if defects both in the trucks and the track occasioned the injury, both lessor and lessee would be liable proportionally." If the circumstances are such as to render the lessee liable for torts, it cannot plead by way of defense that the lease was ultra vires of the lessor company.12

1 International etc. R. R. Co. v. Eckford, 71 Texas, 274; 4 R'y & Corp. Law J. 112; following Railroad Co. v. Morris, 68 Tex. 59.

2 Pittsburg etc. R. R. Co. v. Kain, 35 Ind. 291.

3 Cook v. Milwaukee etc. R. R. Co. 36 Wis. 45; St. Louis etc. R. R. Co. v. Curl, 28 Kan. 622.

4 Hoff v. Minneapolis etc. R. R. Co. 14 Fed. Rep. 558; Wasmer v. Delaware etc. R. R. Co. 8)N. Y. 312; Mahoney v. Atlantic etc. R. R. Co. 63 Me. 68: Philadelphia etc. R. R. Co. v. Anderson, 94 Penn. St. 351; 39 Am. Rep. 787.

5 Daconing v. Chicago etc. R. R. Co. 43 Iowa, 96; Clary v. Iowa etc. R. R. Co. 37 Iowa, 342; Stewart v. Chicago etc. R. R. Co. 27 Iowa, 282. 6 N. Y. Laws of 1864, ch. 582, § 2.

7 Tracy v. Troy etc. R. R. Co. 38 N. Y. 433; 98 Am. Dec. 54; Davis v. Providence etc. R. R. Co. 121 Mass. 134; Clement v. Canfield, 28 Vt. 302; Hall v. Browne, 51 N. H. 495; Peoria etc. R. R. Co. v. Lane, 83 Ill. 448. 8 Bower v. B. & S. W. R. Co. 42 Iowa, 545.

9 Alexandria etc. R. R. Co. v. Brown, 17 Wall. 445; Illinois Central R. R. Co. v. Barron, 5 Wall. 90; Abbott v. Johnstown etc. R. R. Co. 80 N. Y. 27; 33 Am. Rep. 572; Nelson v. Vermont etc. R. R. Co. 26 Vt. 717; 62 Am. Dec. 614; Chicago etc. R. R. Co. v. Whipple, 22 Ill. 105; Chicago etc. R. R. Co. v. McCarthy, 20 Ill. 335; 71 Am. Dec. 285; Ohio etc. R. R. Co. v. Dunbar, 20 Ill. 623; 71 Am. Dec. 291.

10 Taylor on Corporations, § 170; Railroad Co. v. Barron, 5 Wall. 90. See Abbott v. Johnstown etc. Horse R. R. Co. 80 N. Y. 27; 36 Am. Rep. 572.

11 Augusta etc. R. R. Co. v. Killian, 78 Ga. 749.

12 McCleur v. Manchester etc. R. R. Co. 13 Gray, 124; 74 Am. Dec. 624; Doolan v. Midland R'y Co. Law R. 2 App. Cas. 792.

§ 570. Of the effect of an unauthorized lease upon liability for torts.-A company making a lease without legal authority subjects itself to liability for the torts of its lessee committed in the operation of the leased road.1 In a case where consolidation had been attempted by means of an unauthorized lease, it was held that the lessor company was not in a state of quiescence or torpor,

but that instead of managing its road alone, it operated it in conjunction with others; and that, accordingly, it remained liable for injuries caused by those whom it had associated with itself in the operation and management of its property."

1 York etc. R. R. Co. v. Winan, 17 How. 301; Alexandria etc. R. R. Co. v. Brown, 17 Wall. 445; Abbott v. Johnstown etc. R. R. Co. 80 N. Y. 27; 33 Am. Rep. 572; Macon etc. R. R. Co. v. Mayes, 49 Ga. 355; 15 Am. Rep. 678; Nelson v. Vermont etc. R. R. Co. 26 Vt. 717; 62 Am. Dec. 614; Mahoney v. Atlantic etc. R. R. Co. 63 Me. 68; Chicago etc. R. R. Co. v. Whipple, 22 Ill. 105. Cf. Woodruff v. Erie R'y Co. 93 N. Y. 609.

2 Latham v. Boston etc. R'y Co. 33 Hun, 265, citing Abbott v. Johnstown etc. Horse R. R. Co. 80 N. Y. 27; 36 Am. Rep. 572.

§ 571. Of the recovery of rent upon an ultra vires lease. While a lease unauthorized by charter or statute is ultra vires and void,1 and incapable of being rendered valid by an acceptance of rent," the lessee and its assigns are estopped from pleading the want of statutory authority in an action to recover rent for the use of the road. And while the lessee may not, perhaps, be liable for the amount agreed upon in the void contract, it may be required to pay a just compensation for the use of the property."

1 Thomas v. The Bailroad Co. 101 U. S. 71; Tippecanoe County v. Lafayette etc. R. R. Co. 50 Ind. 85.

2 Ogdensburgh etc. R. R. Co. v. Vermont etc. R. R. Co. 4 Hun, 268. 3 Woodruff v. Erie R'y Co. 93 N. Y. 609.

4 Farmers' Loan & Trust Co. v. St. Joseph etc. R. R. Co. 2 Fed. Rep. 117. But see Union Bridge Co. v. Troy etc. R. R. Co. 7 Lans. 240, where it was held that in setting aside an ultra vires lease, the court will not relieve the parties more than is necessary for the public good, and that hence rent is not recoverable.

§ 572. Of sale. While consolidation is frequently effected by the sale of the property and franchises of one corporation to another, every case of sale is not necessarily a consolidation, properly so called; it may be a mere succession. A