"The main question which the court is called upon to consider in this case is that of jurisdiction; and the answer to this question depends primarily upon the construction which shall be put upon certain provisions of the act of incorporation of the Providence & Worcester Railroad Company, and the acts in amendment thereof, taken in connection with the doings of said company by virtue of the authority conferred thereby. The petitioner sets forth that by virtue of its act of incorporation, and the several acts in amendment thereof or in addition thereto, it has located in the town of East Providence a branch railroad connecting with and to form part of its 'East Providence Branch Railroad, 'so called, and running from a point on said East Providence Branch Railroad near its junction with the Boston & Providence Railroad, 'thence southerly in and along the Seekonk river, to land of said Providence & Worcester Railroad Company, near the "Wilkes Barre Pier, "so called, and to the east bank of Providence river or Narragansett bay, in said East Providence, and has filed the report of such location, together with a map thereof, with the clerk of said court, pursuant to its act of incorporation, and the amendments thereof, and the additions thereto, and to the statute in such cases provided;' and prays for the appointment of commissioners to report and assess the damages to owners of land through which it passes. If the petitioner now has a corporate franchise to locate, construct, and operate the proposed railroad, then this court has jurisdiction, and should appoint commissioners, as prayed. If, however, the petitioner has no power or authority to do the acts contemplated, then the court is without jurisdiction in the premises, and the petition should be dismissed.
"The contention of the petitioner is that the court has jurisdiction—First, because the authority granted by an act of the general assembly passed at the January session thereof, A. D. 1870, entitled 'An act in amendment of and in addition to "An act to incorporate the Providence & Worcester Railroad Company,"' has never been exercised, except in part, and hence, so long as said act contains no limitation as to the time within which the authority therein conferred may be exercised, it is competent for the petitioner now to proceed
and exercise its power by completing the location and construction of the branch railroad therein authorized; and, second, that, in case the court shall find that the petitioner has already exercised the power of locating and constructing the entire branch railroad contemplated by the said last-named act, it has not thereby exhausted the power granted by said act in this respect, but that it may proceed to relocate said branch railroad, or any part thereof, under the express powers therein granted. The contention of the defendants the Boston & Providence Railroad Corporation and the Providence, Warren & Bristol Railroad Company is that the court has no jurisdiction in the premises—First, because the Providence & Worcester Railroad Company had, prior to its vote of February 4, 1888), assuming to make the location, exhausted its power to locate any railroad under the said act of 1870; second, that the Providence & Worcester Railroad Company, by its lease to the New York, Providence & Boston Railroad Company, executed May 1, 1888, parted with any franchise to operate and locate a railroad under the said act; and, third, that as the act of 1870 does not in terms, or by necessary implication, authorize the location and construction of a railroad upon lands held by the Boston & Providence Railroad Corporation and the Providence, Warren & Bristol Railroad Company for railroad purposes, no location can be made under it upon the lands of the Boston & Providence Railroad Corporation and of the Providence, Warren & Bristol Railroad Company, held and used by them for railroad purposes. The defendants Charles Frazer and another simply contend that the petitioner, having here to fore located and constructed the branch railroad contemplated by its charter, has thereby exhausted its powers in this respect, and cannot now change said location.
"The proof submitted, most of which is matter of record, shows the following to be the main facts in the case, in so far as they are material for the decision of the questions raised.
"The original charter of the Providence & Worcester Railroad Company was passed May 10, 1844, and by section 2 thereof they were authorized and em powered to locate, lay out, construct, and finally complete a railroad, commencing in the city of Providence; thence to the line of the state of Massachusetts, at or near the village of Waterford; with such lateral branches of said road to any factories or villages on the Blackstone river, or its branches, or the vicinity thereof, as the said company should deem expedient, in such manner as they should deem expedient. And for this purpose the said corporation are authorized to lay out their road, not exceeding six rods wide, through the whole length; and for the purpose of cutting embankments, and obtaining stone and gravel, may take as much more land as may be necessary for the proper construction and security of said road.' By section 8 of said charter it was provided that 'whenever said corporation shall have located said railroad, or any part thereof, they may make report thereof to the court of common pleas then next to be holden within and for the county within which said location is made, at any term thereof; wherein they shall particularly describe the bearings of the intended route, or any section thereof, so located, and the names of the owners of the lands through which the same may pass, so far as the same can be ascertained; which report, so made, shall be placed on the files of said court, and notice given thereof to the owner or owners of the land embraced therein, if known, in such manner as the court shall direct, at the expense of said corporation; and said court shall thereupon appoint three discreet and disinterested persons of said county to estimate all damages which any person or persons whose lands are described or mentioned in such report shall sustain: provided, such railroad, or any appendage or appurtenance thereof, be constructed thereon.' Section 14 of said act provides that 'if the stock shall not have been subscribed for, the company organized, and the location of the route filed with the court of common pleas of the county within which the land proposed to be taken for the use of said railroad is situated, previous to the first day of June, A. I). 1847, or if, the stock being so subscribed, the company organized, and the location made as aforesaid, the corporation fail to complete the said railroad before the first day of June, A. D. 1850, in either of the before mentioned cases this act shall be void and of no effect.' In October, 1845, an act was passed by the general assembly, entitled 'An act construing and amending an act entitled "An act to incorporate the Providence & Worcester Railroad Company."' Section 4 of this act is as follows: 'Said corporation, after having located, or reported as located, or taken or used, land or materials for the uses of their said railroad, shall have power, if they shall find it expedient, to alter the location and vary the direction of their said railroad, in any portion of the general route or of the lateral branches of said railroad contemplated by their charter, and to make a new location of the same in whole or in part; in which case report shall be made, and damages for land or materials taken, or located and proposed to be taken, for the uses of said railroad, shall be estimated or assessed, and like proceedings in all respects had, with like effect, as if said railroad, or the portion thereof located anew, bad not before been located: provided, however, that the time allowed by the charter of said corporation for completing their said railroad shall not be extended in consequence of such alteration.' Section 5 provides that, 'in case of any such new location, the said corporation may, in their report thereof, state what portion of their former location has been abandoned; specifying the person or persons whose lands or materials, in whole or in part, have been abandoned in consequence of such new location; and, if the land or materials of any person before reported as located shall not have been taken and used, all proceedings for the estimate or
assessment of damages in favor of said person shall stop; said corporation first paying, to every such person whose land or materials located shall have been abandoned as aforesaid, his costs and reasonable expenses, if any, incurred in prosecuting for damages, up to the time of such abandonment, said costs and expenses to be taxed by the court to whom the new location is reported. If the land or materials of any person before reported as located have been taken or used by said corporation as the site of, or in constructing and securing, their said railroad, and the assessment of damages for the same is then pending before the commissioners or a jury, then, upon such new location and abandonment as aforesaid, said corporation shall have the right to give said abandonment in evidence in diminution of the damages, paying costs if the question of damages is pending before a jury on appeal, notwithstanding a diminution of the damages in consequence of such abandonment then first given in evidence; or, if the commissioners or...
