Collier v. Union Railway Co.

Mr. Justice Wilkes delivered the opinion of the Court. — 102 — This is a proceeding to condemn land for railroad purposes. The defendant company claims to be a railroad corporation cliartered under general incorporation act 1875, p. 232, c. 142, section 6 (Shannon’s Compilation, sections 2414 to 2425, inclusive), and other sections bearing upon the question of corporation charters and the amendments to these original acts. Collier and wife defend upon the ground that the charter under which the corporation is organized does not conform to the provisions of the act, and that the act and charter do not authorize the construction of such a road as is being built under it. Our statutes provide for the formation of corporations by the following general provisions (Shannon’s Compilation): “Sec.' 2024. Private corporations may be formed and charters obtained by them in the manner and for the purposes hereinafter provided. “Sec. 2025. Any five or more persons, over the age of twenty-one, desiring to form a corporation for any of the purposes in this chapter mentioned shall copy the form of charter adopted to the purpose, filling the necessary blanks, afid append to the. same an application in these words: ‘We the undersigned apply to the State of Tennessee, by virtue of the laws of the land, for a charter of incorporation for the purposes and with the powers declared in the foregoing instrument. Witness our hands -day of-.’ ” Section 2026 provides, in substance, that „the instru — 103 — ment, when probated as provided in section 2542,. with application, probate, and certificates, is to be registered in the county where the principal office of the company is situated, and also registered in the office of the secretary of state, and a certificate of registration given by the secretary of state under the great seal of the State, and it shall, when registered in the register’s office of said county, with the facsimile of said seal,-complete the formation of the company as a body corporate, and the validity of the same in any legal proceeding shall not be collaterally questioned. The contention is that the provisions of the act must be complied with before the corporation becomes perfect and valid, and, unless they are. complied with, the charter is invalid and void. Section 2412, Shannon’s Compilation, provides as follows : “The charter of a railroad or railway company shall be as follows: £Be it known that-and -are hereby constituted a body politic and corporate by the name .and style of (here insert the name) for the purpose of constructing a railway from-in the county of-to-in the county of _> The charter in controversy was obtained in 1886. An amended charter was obtained in 1902. The first criticism made is that a charter for any railroad authorized by the act must set forth the termini of the road proposed to be built, and that a charter which specifies only one terminus provides only for a circular — 104 — route, beginning at and returning to the same point, and is therefore void. And it is insisted that the charter in the present case names no termini such as the act contemplates and requires, or, if it names any, it is only one terminus, which is made the beginning and ending point. The charter in controversy provides that certain persons' (naming them) “are hereby constituted a body politic and corporate by the name and style of the Union Railway Company for the purpose of constructing a railway from some point on or near the present southwestern limits of the taxing district of Shelby county, thence eastward on or near the southern limits to a point on or near the southeastern limits of said taxing district, thence northwardly on or near the eastern limits of the taxing district aforesaid to some point on or near the northeastern limits of said taxing district, thence west-wardly on or near the northern limits of the said taxing district, 'thence southwardly by the most practicable and feasible route to the beginning.” It is insisted that in this description no terminus is named, or, if any is named, there is only one, which is both the beginning and end of the route. On the other hand, it is contended that the two termini may be in one and the same place, and that there may' be any number of termini, and that the charter in'question does provide for a number. There can be no doubt but that it is essential to name — 105 — the termini of any proposed railroad in its charter^ in order to make that charter valid. The route of a commercial road may be generally, and need not be definitely, stated in its charter. In this respect it differs from a street railway, as is explained in the case of Citizens’ Street Railway v. Africa, 100 Tenn., 44, 42 S. W., 485, 878. Hence the form of charter prescribed for commercial railways need not include any description of the route, but only the termini. In connection with this criticism it is said that the road which is being constructed under this charter is not such as is authorized by it, but that it is being attempted, under a charter intended for commercial railroads, to construct and operate what is called “a belt line railroad.” The Union Railway Company made various contracts and agreements with the city of Memphis, in which it styled itself- “a belt line railwayand in a petition to the county court of Shelby county on April 19, 1886, it stated that the object of its charter was to authorize the building and operation of what is commonly known as a “belt line railway,” to connect the’various lines of railways now entering or hereafter to enter into that city, and in its articles of agreement with the city it is stated that its principal object is the building of a belt line in and around said taxing district. Several officers of the company were examined in regard to the character of the road, and in regard to its termini. — 106 — Mr. Brinkley, at one time its president, upon being pressed for a direct answer as to whether the road had any terminus, answered: “It has none, or a great many, according to the view you take of it; and you might say it has many termini, and no terminus.” Mr. Fleming, the present president of the road, when asked as to its termini, replied that he knew nothing about it, except the charter; and he proposed to read that in reply to the question. He stated further that there were six different routes; and when asked to give the termini of the road, as indicated in its original charter, he replied: “I don’t know. I can give my impression of it.” Mr. Davant, a leading railroad man of Memphis, states that his understanding- was that the Union Railway Company was a belt or terminal railway. To the same effect is the testimony of Mr. Buckingham, one of the directors. These gentlemen say that, in their view of the matter, the term “belt railway” or. “terminal railway” has no particular significance to distinguish it from an ordinary commercial railway. We think we need not debate the question whether the proposed road is a belt road or terminal.road, or not, as counsel for the railway company insists that it is not a belt road or terminal road, as contradistinguished from the road which is authorized by thé statuté we have referred to, to wit, section 6, c. 142, p. 238, Acts 1875, and its amendents. — 107 — The crucial question in the case is whether the road which is being constructed is authorized by the act referred to, and whether its charter conforms to that act, and whether the road conforms or intends to conform to that’ charter. It is only such road, that is authorized to condemn property for its purposes under the exercise of eminent' domain. We need not, therefore, discuss Acts 1893, p. 15, c. 11, which authorizes the creation of railroad terminal corporations, as the defendant railroad company does not claim any authority or right to act under that law. The original charter of this company, as before stated, was granted in 1886. The line of the road along the southern limits of the city was definitely located, and some work had been done upon it soon thereafter. This was done under a contract with the taxing district of Shelby county of date January 7, 1890. No other portion of said route was then specifically located, but the general location was, as described in the charter, on or near the then city limits. The eastern and northern lines were not definitely located. A second contract was made with the city in November, 1890, but the route was not changed, and remained as originally provided for until the charter was amended in 1902. In the meantime the city of Memphis had extended its limits far beyond what they were in 1886 and 1890, and — 108 — tbe original route designed would have run, not around, but through the city, and through one of its most populous portions. The city in 1902 was not willing to permit this, nor were the residents along the route willing to- allow it; and a new contract was made .that the road should be constructed outside of the eastern and northern limits, as then existing, and also might be extended along the wharf in front of the city, so as to make it a complete road around the city. It was to meet this changed condition of affairs that the new charter was obtained, locating the line so as to go around the city by extended lines, and reach the initial or beginning point, as at first contemplated. It is said that, in making the location under the amended charter, route No. 1 does not connect with the route No. 1 laid out in the original charter at McGee’s station. The calls of the two routes do connect, as appears from the contracts made with the city; that is, the route No. 1 under the amended charter calls to commence at the terminus of the road chartered where that terminus is located by the contract with the city; that is, in the right of way of the Southern Railroad at or near McGee’s station, The argument is, however, that, when the city made contracts Nos. 1 and 2, the limits of the city only extended to Robeson avenue, and not to McGee’s station, or the crossing of the Southern Railroad, and it had no power, therefore, to fix the route beyond Robeson ave — 109 — nue, its eastern limit. We may grant this to be true, bnt the road, so soon as it crossed the city line, came into the rural districts, and conld locate its own' line, which it did to the Southern crossing, making that a temporary terminus. The amended route then begins at this terminus, calling for it, and continues as before stated. We think this point in the right of way .of the Southern Railroad meets the charter requirement of being a point “on or near the then southeastern limits of the taxing district,” and it also meets the requirement of being “at or near McGee’s station.” These wor<Js “at or near” are indefinite and must receive a reasonable construction. Lewis on Eminent Domain, section 257; Redfield on Railways, p. 413; Fall River Ironworks v. Old Oolony R. R., 5 Allen, 221; Boston Railroad v. Midland R. R., 1 Gray, 340, 367; Purifoy v. Railroad, 108 N. C., 100, 12 S. E., 741. In addition, McGee’s station should be held to mean a locality, and not a fixed and definite point. The route as laid out in the original charter calls, in general terms, to start at a point on or near the present southwestern limits; thence eastwardly to a point on or near the present southeastern limits; thence to a'point on or near the present northeastern limits; thence to a point on or near the present southwestern limits; thence to the beginning; designating the then existing limits as the localities upon which the route is to be located. The amended charter of 1902 provides for six new or — 110 — additional routes: No. 1 commencing at or near McGee station, at tbe eastern terminus of tbe road as located January 7, 1890, and November 6, 1890, and running around tbe limits of tbe city as it then existed until it reaches a point in tbe city limits at Cooper avenue; tbence to a point not less than 300 feet north of Summer avenue; tbe other routes calling to commence at different points on No. 1 and its extensions, and to run into different localities to different points as the end of tbe routes, but tbe final terminus is tbe same as in tbe original charter. ' ■ Tbe original charter contemplated a route about four miles in length. Tbe amended charter provides for one about seventeen miles long." Tbe property of Collier and wife does not lie along tbe route as prescribed by tbe original charter of 1886, but is reached only by tbe lines laid off under tbe amended charter; and hence we must inquire into tbe validity of the amended charter, and tbe right of tbe railroad company to exercise tbe right .of eminent domain thereunder, and at-this particular place in its route. We think there are three principal questions involved in tbe case: First, whether tbe act of 1875, and tbe acts amending same, authorize tbe construction of a road extending' around tbe limits of the city, from point to point, and returning to its initial or beginning point; second, whether there is any amendment to the act of 1875 which would authorize the construction of the six additional routes prescribed by the charter of 1902; and, — 111 — third, whether a railroad constructed in this manner is a public use, and entitled to exercise the right of eminent domain. We proceed to consider the first of these questions, as to whether or not the general incorporation law of 1875, or the amendments to it, authorize the construction of a circular road; that is, a road having both termini at the same place, and extending from point to point, in a circular shape, around the limits of the city. Clearly, no charter can be valid that is not authorized by law. Ex parte Burns, 1 Tenn., Ch. 88-93; Ex parte Chadwell, Id., 95; Heck v. McEwen, 12 Lea, 104. We think it is essential that a road should have termini, and that they must he named in the charter, in order that it may be a legal corporation. The act prescribed the form, and requires that it he copied, and this form must state the termini. The statute, having required a form, makes that form a necessity ; and, having prescribed the matter of the form, that, is made essential. The things which a statute requires to be done in order to .complete the organization of a corporation as a body politic are mandatory and essential, and, unless they are all substantially done, the charter is void and the incorporation is incomplete. Shields v. Clifton Hill Land Co., 94 Tenn., 146, 28 S. W., 668, 26 L. R. A., 509, 45 Am. St. Rep., 700; Brewer v. State, 7 Lea, 682; Mayor v. Ward, 16 Lea, 27. But it is said that, while termini are necessary to be — 112 — stated, yet the initial and final termini may be the same point, or rather, the beginning and ending may be the same point. It has been held that the ronte of a commercial road need not be specified in its charter. If it is to pass over streets of a city, the consent of the city must he obtained, and, in order to do this, it is necessary to define the route, and obtain the permission of the city to occupy the same. It is conceded that the legislature might authorize the charter for a circular railroad returning to its initial point, but it is insisted that it has not done so. The question is not, ought such a road to be provided for? but, has it been authorized? No matter what the benefit may be, no matter what the convenience may be, no matter what the necessity may be, the courts'have no power to dispense with the statutory requirements, or to supply a statutory provision, to meet the ends which the legislature might have reached if it had been called to its attention. We are referred to the case of State v. Martin, 51 Kan., 462, 33 Pac., 9, as holding that such circular road may be chartered without termini. This will, of course, depend largely upon the statutes of Kansas. By the statutes of Kansas, 'the articles of incorporation of a railroad company are required to show (1.) the kind of road proposed to be constructed; (2) the places from and to which it is to be constructed; (3) — 113 — the counties through which it is proposed to run; (-4) its estimated length. In a quo warranto proceeding, in the case referred to, brought to vacate the charter, as being unauthorized by law, the attorney-general insisted that the places from and to which the road intended to run necessarily required termini or two termini but the court held to the contrary, and sustained the charter of the road, as being authorized by the statutes of the State. Upon this feature of the case, the attorney-general urged against the legality of the road all the objections that have been urged in the present case; and they were fully considered by the court, and disposed of in a lengthy and exhaustive opinion. We quote from this opinion as follows: “The statutes of Kansas provide that the charter of a road company shall state the kind of road, the places from which it is intended to run, the counties through which it is intended to run, and the estimated length of the road.” Continuing, the court said: “The argument is that section 7 requires the charter to state the places from and to which the road is intended to run, and hence the road must be longitudinal, rather than circular; extending from one place or neighborhood to another, so as to have at least two termini. It is true, there is no express provision for the building of circular railroads, nor do we find any requiring that only longitudinal lines shall be projected and constructed. We find no limita — 114 — tion in the statutes with reference to the direction or course in which railroads shall be built. Nor do we find that any such limitation can be reasonably inferred from the provisions of section 7. The statute does not provide that the róad shall be built from a town or city in one county to a town or city in another county, nor does it require that the road shall be of any prescribed length. It simply provides that the places where it is intended that the road shall begin and end shall be stated in the charter.” In that case, as well as this, it was" conceded that the road need not run from a terminus in one county to a terminus in a different county, but both termini might be in the same county, and the length of the road was not material. The provisions of the Kansas statute are substantially the same as our statute with regard to the termini. We can see no valid reason why, under our general acts relating to the incorporation of railroads, a number of intermediate towns or cities, or a number df intermediate points in a county or city,- may not- be designated as intermediate termini upon the route of the road. While the route of a commercial road need not be stated, there is no reason why it may not be done, nor why a number of intermediate routes from point to point may not be joined into one continuous road. It may be likened to so many boundaries of a farm or tract of land, with a number of courses and distances of different di — 115 — rect'ions and lengths, but finally the closing course and distance coming back to the initial point. To illustrate further, we can see no reason why a charter would not be valid if it should name as its route for a commercial railroad Memphis to Bolivar, from Bolivar to Jackson, from Jackson to Union City, from Union City to Covington, and from Covington to Memphis, the initial point. Nor can we see why such route should not be circular in form as well as a polygon, with many sides, so as to reach from one terminus to another by the most feasible route, if its charter so specifies with reasonable certainty. It is argued that to allow this would be to permit a road to start at any given point • and make a circle around a city, or even around the limits of the State, returning to the same point. We do not see why this might not result in any event, under the general incorporation act, unless we hold that a charter may not be framed to run from one town to another, and from the latter to another, and SO' on, until the last route ends at the beginning point. But whether this be true or not, to the extent stated, we think that a line may be made of reasonable length, and embrace within itself a reasonable area — such, for instance, as the limits of a city — if the several connecting routes are named, each having termini. In such a case the final line or route would have two termini, one of which would be the beginning point. — 116 — As to tbe original charter, it may be held that it provides for four routes, each having distinct generally designated termini, and tbe amended charter provides for six routes, each having distinct termini; the final termini in each case being the initial point. We are of opinion, therefore, that .the fact that the road is somewhat circular in form or shape, or a polygon with many sides, and its final terminus at the same place as its initial, does not render the charter void, in as much as intermediate points or termini are named which designate the general route, but that such a road, if a public use and public necessity, is authorized by the act of 1875, and the amendments thereto. In building its line through the city, the road must necessarily designate its route, so as to obtain permission and concessions from the city to occupy the streets over which the road is intended to be built; and the rule as to the designation of a route for a commercial road through the rural districts does not apply when the line is to be built over the streets of a city, to wit, that no route be named. As to the amendments, we think we need only consider the act of 1897, p. 271, c. 116, which provides as follows: “Be it enacted by the general assembly of the State of Tennessee, that the stockholders of any corporation, organized under a charter obtained under the provisions of the act entitled ‘An act to provide for the organization of corporations,’ passed March 18, 1875, approved March 23, 1875, or organized under a charter obtained — 117 — under an act amendatory to said acts subsequent thereto, who may desire to change the name of such corporation, increase its capital stock, or obtain any power granted, either by said chapter 142 of the Acts of 1875, or by any act amendatory or subsequent thereto, shall have the right to do so under and in the manner provided by section 19 of said chapter 142 of the Acts of 1875, which provides for the amendment of charters.granted by the legislature, and with the like effect as therein provided,” etc. Said section 19, p. 257, of chapter 142 of the Acts of 1875, prescribes the following as the form under which the amendment shall be applied for: “We the undersigned, comprising the hoard of directors of the [Union Railway Company] apply to the State of Tennessee, by virtue of the general laws of the land, for an amendment to said charter of incorporation, for the purpose of investing said corporation' with the power [of constructing, maintaining, and operating a railroad along and over the following routes, which are in addition to the route already granted to it by its charter],” etc. This form was copied, as we have set out, and then follows the six additional routes already spoken of, described with some degree of particularity and detail, and giving the termini of each route. We are of the opinion that if the railroad needed any additional power to construct its line along these six routes, or either of them, it was conferred by this amended charter, granted the third day of June, 1902, and that — 118 — this amended charter conforms to the requirements of the statutes of 1875 and 1897, to which we have referred, and that under its amended charter the road is authorized and given power to construct its lines over these routes, or any one or more of them, so as to reach its terminus or beginning point, provided the road is a public use and. a public necessity; ánd, if it is such public use and necessity and authorized by law, it has the right to exercise the right of eminent domain. The obtaining by amendment of power to extend the road over new and additional routes is covered by the Avords and meaning of this statute. We proceed, therefore, to inquire whether the road is a public use and public necessity, or whether it is a mere private enterprise, or an enterprise which does not sub-serve a public use. The charter itself provides for the construction of a road similar to all commercial railroads, and it contains provisions similar to those imposed upon all other commercial railroads in the State. So far, then, as the provisions of the charter are concerned, its purpose is to construct a railroad similar to all other commercial roads. The testimony of its- chief officers is taken, and they state that it is their purpose to build a road conforming in every essential respect to the provisions of its charter, and that they intend and expect to do all and every kind of business, and to engage in all traffic, freight and passenger, to the same extent and in the same manner as — 119 — any commercial road; and they point to the fact that, if they failed to do so in any particular, they may be compelled to do so by the provisions of their charter and by the general law of the land. It is admitted by these officers that the bulk of its business will be the transfer of loaded cars from one railroad to another, and from the various industries to the several lines of roads centering in the city of Memphis. But it is said that it does not propose to discriminate against any one, or to restrict the business of the corporation to anything less than is performed by the ordinary railroad company. Upon this feature of the case, the case of State v. Martin, supra, is also directly in point. In that case it was said: “Even the averments of the plaintiff do' not show that the proposed use of the road is not a public one. Besides switching cars from one part of the city to another, it is alleged that the road is to be leased to other railroad companies for terminal facilities. Nothing is stated which shows that the companies to which the road is intended to.be leased will not afford transportation to all, or to all who under ordinary'circumstances would be entitled to. such service. The convenience or necessity of belt or terminal roads in crowded and populous cities is well understood, and has been frequently demonstrated. A single road which reaches a union and other depots, as well as warehouses and elevators and other places in the city, is made to serve all the railway companies operating to and from the city, when it would — 120 — be impracticable, and perhaps impossible, for each of the companies to secure an entrance, and build its own line to the depots, stations and storehouses in all parts of the city where railroad service is required. By this means unnecessary roads and expenses are avoided, and the facilities and the conveniences to the public are greatly enlarged. Every unnecessary mile of railroad tracks adds to the cost of transportation, and, as the public which uses these roads is required to bear the burden of this extra cost, it is clearly in the interest of the public that a terminal road which affords transportation to all companies and ■ people should be constructed and maintained. The fact that this proposed road is to unite at the State line with a Missouri corporation gives no ground for complaint. Neither is the alleged purpose of the defendant company to lease its line to other railroad companies a valid objection to its exercise of the powers and privileges of a railroad corporation. [Both of these things were authorized by the Kansas statutes.] “Again, it is said that the Atchison Union Depot & Railroad has only a short terminal line, designed and constructed for the purpose of furnishing the railroad companies which enter the city with access to the union depot, and facilities of interchange of traffic. It was contended that such a corporation was not a railroad company, within the meaning of the statute, which might exercise the right of eminent domain. The validity of the corporation, and its right to exercise the power — 121 — of eminent, domain, has been sustained. Reisner v. Strong, 24 Kan., 410. “Again, it is said, that declaration in the charter of the defendant company and the allegations of the petition sufficiently show that it was organized as a railroad company under the general law, and that it is designed mainly to serve the public as a common carrier. It is not necessary at this time to determine whether such a company, operating through a city, must accept passengers at every crossing, and furnish the facilities which street railroads are designed to furnish. Neither need we determine whether all of the company’s lines and branches must be designed and used for the transportation of both passengers and property. The corporation being public, it cannot avoid the performance of any duty which it owes to the public. If, from the allegations of the petition, it can be inferred that the defendant company intends at some future time to neglect the performance of its full duty to the public it can not be held a sufficient ground for forfeiture. The company, having been invested with the powers, privileges, and franchises of a railroad corporation, is subject to all the duties and liabilities of such corporation, and there is ample power to compel the performance of any duty which it may neglect.” It appears that the principal or most important part of the business of this road will be the transfer of loaded and empty cars from one railroad to another, and from the various industrial enterprises to the several rail — 122 — roads, and back again; but at the sanie time by its charter, it is obligated to do a general railroad business, both as to freights and passengers. The fact that its principal and most important business is the transfer of loaded and empty cars from one point to another does not make it any the less a commercial railroad, under the provisions of the general law. The fact that a railroad, running through a coal section does most of its business in the hauling of coal does not make it any the less a commercial road, such as is contemplated by the general statutes. The fact that passengers may rarely, if ever, pass over the line, does not deprive it of its character as a railroad. The fact that it may run in a direction or through localities where passengers do not desire to go does not deprive it of its status as a railroad. The fact that its main business is freight business, and • a business in bulk, does not make it the less a public use. As is said in Ryan v. Terminal Co., 102 Tenn., 111, 50 S. W., 744, 45 L. R. A., 303, the term “public use” is a flexible one. It varies and expands with the growing-needs of a more complex social order. Many improvements universally recognized as impressed.with a public use were nonexistent a few years ago. This is equally true as to other appliances which now form important parts of a rapidly widening system of social and commercial communication. So it may be said at the present time that anything which will satisfy a reasonable — 123 — public demand for public facilities for travel or for transportation or transmission of intelligence or commodities and of the general public, under reasonable regulations, and which have a definite and fixed use, independent of the will of the parties in whom the title is vested, would be a public use.” Citing Mills on Eminent Domain, section 11; Stewart v. Railway Co., (Minn.), 68 N. W., 208, 33 L. R. A., 427. In this case the case of Memphis Freight Company v. Memphis, 4 Cold., 419, was commented upon and distinguished, in that the company in that case was organized for the purpose of building warehouses, and handling freight to and from those warehouses. The warehouses were the principal matter of use, and a short line of road, which was merely incidental to the business, was not a public use. In the present case it is shown by the principal officers of the road that it is the purpose of the company to switch cars from one road to another, to receive freight on the line of its road, and give bills of lading over its own and other roads to any part of the world — in other words, to perform all the functions of an ordinary road. We think, therefore, that it is clearly established, both by the charter and parol evidence, that the road is intended to subserve a public use, to confer a public benefit, to meet a public necessity; in short, to do any and everything that is required of an ordinary public commercial railroad. It is said that the condemnation proceedings in this — 124 — case are void, because the railroad company is deviating from its charter right of way, inasmuch as it does not continue parallel with the Nashville, Chattanooga & St. Louis Railway near McLean avenue, and within 300 feet of that road, and, again, because it deviates from its line laid down in the charter after crossing Trezevant avenue. The route between McLean avenue and the west line of Cooper avenue is as follows: “In a general easterly direction to the west line of Cooper avenue, the present eastern limits of the ctiy of Memphis thence in a general easterly direction across Trezevant avenue.” The place where the line is specified to run within 300 feet of the Nashville, Chattanooga & St. Louis Road is between Raleigh and McLean avenues; and at this point the Union Railway does run within 300 feet of the Nashville, Chattanooga & St. Louis Road, and it only begins to diverge just before getting to Cooper avenue; the Nashville, Chattanooga & St. Louis Road running in a northeasterly direction, and the Union Railway continuing in a general easterly direction, as the charter provides, until the locality of Buntin avenue is reached. In other words, the deviation is mainly beyond the city limits, but at and near the point where it crosses the lot of Collier and wife it approaches and crosses the Nashville, Chattanooga & St. Louis Road. The president of the road gives a reason for this deviation, and shows that there were topographical reasons why the deviation should be made, among which was to — 125 — prevent tbe destruction of the Crescent Oilmill, and to make proper grade crossings at Cooper avenue, at Central avenue, at Trezevant, at Eoyster and Avery avenues.; and the location of the line as thus made would offer the least possible impediment to travel on the streets, and to the spread of the city in that direction. In addition, he says that the Nashville, Chattanooga & St. Louis Eoad is located upon practically a surface grade, and it would be impossible to follow that and construct a first-class road, and it was so constructed as to be both to the interest of the road, as well as for the benefit of the public. In Tenn. Cent. R. Co. v. Campbell, 109 Tenn., 667, 73 S. W., 12, it was said: “Under the law, in regard to the construction of railroads, when the route is not definitely located by the charter, a legislative discretion is allowed in making such location, provided there is not a substantial deviation from the course and direction-indicated by the charter,” citing the authorities. In this case there was a deviation from a direct route of several miles. These deviations are allowed according to the necessities of the road, the physical surroundings, and other cicumstances that enter into the consideration of railroad building; and the president of the road gives, we think, sound reasons of railroad construction and considerations of public convenience and public safety for the deviation as made, which, so far as we can see from the maps furnished us in the case, and from the general — 126 — description of the surroundings, is not á variation which materially affects Collier and wife. It is further claimed that the Union Railway runs longitudinally on Buntin avenue, and that this is done without the consent of either the abutting owner or the county court, as is provided under the statute (Shannon’s Code, section 1879). The facts in regard to this feature do not appear very definitely. The decree and order of condemnation only condemns the Collier property up to the west line of Buntin avenue, and there is nothing in the record that shows that the route of the road will he upon Buntin^ avenue, unless it may b'e inferred from the map. . It appears that, if the road touches Buntin avenue, it only reaches it a short distance from the end of the avenue, and then at a considerable angle, and does not run longitudinally along the avenue. But we are unable to see how this is a matter of which Collier and wife can complain. If the railroad company is occupying the public highway improperly, it may be enjoined in a proper proceeding. But the point does not appear to be raised in the proof in the case, and is, Ave think,-immaterial, so far as the rights of Collier and Avife are concerned. It is nest said that the order confirming the report of commissioners divests the fee out of Collier and wife, and vests the fee in the railroad, instead of simply vesting it with an easement of right of way. It appears, however, from á .supplemental transcript, — 127 — that the decree complained of lias already been corrected so as to give only an easement of right of way over the land in controversy. ' . - It is said in the nest place that the court erred in not leaving to the' jury to determine the amount of land -to be taken. This assignment is not well made. The order appointing the jury directs that in estimating and assessing the damages the jury will give the cash value of the ground, and set apart by metes and bounds a sufficient quantity of land for the purposes intended, not exceeding the amount prayed for in the petition, and assess the damages occasioned to defendants thereby. The jury, in its report, set aside one hundred feet, which was the amount asked for in the petition. This answers the assignment made, if, indeed, the court might not itself have determined the amount to be taken, and merely left to the jury the assessment of damages. It is said in the next place that the writ of possession was granted at a term subsequent to that when the report of the jury Avas confirmed. It appears that the decree' Avhich was entered at the May term failed to award writs of possession, and it is insisted that it could not be issued at a subsequent term. We think that this assignment is not well made, and that, so long as the court retains control of the subject-matter and the parties, writs of possession may issue. We do no think that the power and jurisdiction of — 128 — the circuit court were gone, or that the court was deprived of its power to consummate its decree until it had ípade all orders necessary for a final adjudication of the case; and, if the court below had not the power to issue the writs of possession, then this court would either issue such writs, or remand the cause to the court below for that purpose, if we should be of opinion, as we are, that the railroad company has the right to make such condemnation. Quite a number of other assignments are made, but we do not consider them material. In connection with the case of Collier and wife v. Union Railway Company, we have heard the case of State, ex rel. Wellford, v. Union Railway Company, which is a proceeding to vacate and set aside the charter of the Union Railway Company, for various reasons, most of which have already been considered in the case of Collier mid wife v. The Railway Company. The only additional point which we think material to mention in the latter case is the fact that the railway company suspended its work and operations for a number of years, and thereby forfeited its charter rights. We think this is not well made. The road did suspend for a number of years, but the project was never abandoned, and, so soon as funds were procured, the contemplated road was extended and built. A railroad is not built in a day, and it is a matter of common information that, after being projected and partly constructed, they suspend operations and lie dor — 129 — mant for a number of years; but they do not lose their charter rights unless the lapse, is so long as to amount to an abandonment. The court is of the opinion that the Union Railway Company has the right to condemn the property of Collier and wife, and that they are not entitled to the relief which they ask. It is therefore ordered that the petition of Collier and wife be dismissed, and that the cause be remanded to the court below for such further proceedings as may be necessary, and the judgment of the court below is affirmed, with costs. The bill in the case of State, ex rel. Wellford is dismissed at the cost of complainant, and the decree of the court below is affirmed, with costs.