RAILWAY. A road graded and having rails of iron or other material for the wheels of carriages to run upon.
Railways in their present form first began to be extensively constructed after the success. ful experiments in tbe use of locomotives in 1829. They had been in use in a rude form as early as 1876. These earlier railways were of limited extent, built by private persons on theii own land or upon the land of others, by epecial license, called way-leave. In their modern form, railways are usually (though not necessarily) owned by a oorporation, which is authorized to exercise some important privileges, such as a right of emi nent domain, etc. Within a few years, another class of railways, namely, those laid in the streets of towns and oities, have become very numerous, and many very interesting questions have arisen and are still arising in regard to them, most of which remain unsettled at the date of writing. See 14 Gray, Mass. 69; 4 Cush. Mese: 63; 9 Ind. 433, 467; 7 Port. Ind. 38, 459; 23 N. H. 83; 26 id. 266 ; 25 VE. 49; 2 R. I. 154; 18 Penn. St. 187; 27 id. 339 ; 21 Conn. 204; 2 &Vit. Ch. N. J. 352; 20 Bost. Law Rep. 449. It is proper to say tliat most of the authorities cited ahnve are cases of steam railroads, between which and the common street railroads important differences exist.
2. The charter of a public railway requires the grant of the supreme legislative authority of the state. 3 Engl. Railw. Cas. 65 ; 2 Railw. Cas. 177 ; 3 N. Y. 430. It is usually conferred upon a private corporation, but sometimes upon a public one, where the stook is owned and the company controlled by the state. Redfield, Railw. 17 ; 1 Ohio St. 657; 21 Conn. 304 ; 10 Leigh, Va. 454; 4 Wheat. 668; 9 id. 904; 1 Greene, Iowa, 553 ; 8 Watts, Penn. 316. Such charter, when conferred upon a private company or a natural person, as it may be, is irrevocable, and only subject to general legislative con trol, the same as other persons natural or artificial. 4 Wheat. 668 ; 2 Kent, Comm. .75, and notes ; Redfield, Railw. 231 ; 27 Vt. 140 ; 11 La. Ann. 253 ; 2 Gray,'Mass. 1; 3 Sneed, Tenn. 609 ; 26 Penn. St. 287 ; 32 N. H. 215. See 11..
The right of may is generally obtained by the eierdise of the right of eminent domain.
This can only be done in Strict conformity to the charter or grant. 4 Engl. Railw. Cas. t35, 513, 524 ; 6 Gill, Md. 363. The com pany may enter upon lands for the purpose bf making prelitainary surveys, by legisla the permission, Without becoming trespassers, and without compensation. 34- Me. 247 ; 9 Barb. N. Y. 449 ; Wright, Ohio, 132, and eases cited.
3. The company acquire only a right of way, the fee remaining in the former owner. The company can take nothing from the soil, except for the purpose of construction. 2 Hill, N. Y. 342 ; 6 Mass. 90 ; 7 Mete. Mass. 297; 2 Gray, Mass. 574 ; 2 Iowa, 288 ; 25 Vt. 151 ; 2 Dev. & B. No. C. 457 ; 20 Barb. N. Y. 644 ; 34 N. H. 282 ; 16 Ill. 198 ; 1 Sumn. C. C. 21. See 26 Penn. St. 287; 11 N. Y. 308.
The mode of estimating compensation to the land-owners varies in different states. The more general mode is to award such a isurn as will fairly compensate the actual loss, i.e. to give a sum of money which being added to the land remaining will make it as valuable as the *hole Would have been if none of it had been taken. 13 Barb. N. Y. 171 ; Redfield, Rail*. 71, and cases cited.
The company may lay their road across a highway, but not without making compensa tion to the owner of the fee for the additional Servitude thus itnposed upon the land. 3 Hill, N. Y. 567 ; 25 Wend. N. Y. 462 ; 1 Exch. 723 ; 16 N. Y. 97; 21 Mo. 580 ; 27 Penn. St. 339; 9 Cush. Mass. 1; 29 Lond. Law Times, 17; Redfield, Railw. 76.
4. The construction of the road must be *ithin the preScribed limits of the charter. The right of de'vi ttion set' and by the char ter or general laws is lost when the road is once located. 1 Mylne & K. Ch. 154 ; 2 Ohio St. 235 ; Redfield, Railw. 105. Sce 2 Rich. So. C. 434 ; 1 Clark & F. Hon. L. 252 ; 10 Conn. 157 ; 12 id. 364 ; 2 Swan, Tenn. 282 ; 9 La. Ann. 284 ; 1 Gray, Mass. 340. Dis tance, having reference either to the length of the line Or to deviation, is to be measured in a straig_ht line through a horizontal plane. Redfield, Railw. 106 ; 9 Q. B. 76; 27 Vt. 766 ; 36 Eng. L. & Eq. 114. In crossing highways, public safety undoubtedly requirei that it should not be at grade, or, if so, that the crossing should be protected by gates.