Louisville, N.A. & C. Ry. Co. v. Pope

• Decision Date: 12 June 1897
• Docket Number: 264.
• Citation: 80 F. 745
• Parties: LOUISVILLE, N.A. & C. RY. CO. v. POPE.
• Court: U.S. Court of Appeals — Seventh Circuit

80 F. 745

LOUISVILLE, N.A. & C. RY. CO. v. POPE.

No. 264.

United States Court of Appeals, Seventh Circuit.

June 12, 1897

The Chicago & South Atlantic Railroad Company was organized September 1, 1873, under the general railroad incorporation law of Illinois, approved March 1, 1872. Its proposed capital stock was $3,500,000, divided into shares of $100 each. To this capital stock only a nominal subscription was ever made. It is stated in the argument for appellant, and apparently not disputed in that for appellee, that the total amount of stock subscribed was eight shares. In September, 1872, the Indianapolis, Delphi & Chicago Railroad Company was formed under the act of March 11, 1867, of the legislature of Indiana, to declare abandoned certain unfinished railroads and to provide for their completion, etc. This company succeeded to the rights of a prior and abandoned corporation of the same name. Its capital stock was $2,500,000, divided into shares of $50 each. Its corporate purpose was to build and operate a railroad from Indianapolis, by way of Delphi, a distance of some 140 miles, to a point on the boundary line between Illinois and Indiana in the county of Lake in the latter state, and in the direction of Chicago. The number of shares originally subscribed to the capital stock of this company was 1,068. Just how many were afterwards subscribed and what was paid for the same, or agreed to be paid, does not clearly appear in the record. On September 5, 1873, these two corporations made a treaty in words following:

'Whereas the Indianapolis, Delphi & Chicago Railroad Company is a corporation duly organized and existing under the laws of the state of Indiana, and thereby duly authorized to construct and operate a railroad extending from a point on the dividing line between the states of Indiana and Illinois at or near Lake county, Indiana, to Indianapolis, Indiana, commencing at points, to wit, Big Springs Meeting House, Boone county Kirkland, Frankfort, and Rossville, Clinton county; Delphi Carroll county; Monticello, White county; and Renssalaer, in Jasper county. Said railroad is intended to pass into or through the counties of Marion, Hamilton, Boone, Clinton, Carroll, White, Jasper (probably Newton), and Lake (counties; and thence on a route to be chosen by the said corporation to such a point on said county line between said states as may be most practicable; and is also empowered by the laws of the state of Indiana to construct, operate, and maintain an extension of its railroad from any point on the line thereof to any point on the line of the Chicago & South Atlantic Railroad in the state of Illinois. And whereas, the Chicago & South Atlantic Railroad is a corporation duly chartered, organized, and existing under and by virtue of the state of Illinois, and for the purpose of building and operating a railroad from the city of Chicago, in the state of Illinois, to a point on the boundary line between the states of Illinois and Indiana, and to be hereafter located so as to connect with the terminus of the road of the said Indianapolis, Delphi & Chicago Railroad Company. And whereas, said roads are to be built in the line of and as parts of a railway to be known as the Chicago & South Atlantic Railroad, which said railroad is to be built on a uniform gauge of four feet and eight and one-half inches (4 feet 8 1/2 inches) in a line as near as may be as follows, to wit: Commencing at Chicago, Illinois, in the most direct route practicable over and upon the road of the Chicago & South Atlantic Company to connect with the road of the Indianapolis, Delphi & Chicago Railroad Company on the line dividing the states of Illinois and Indiana, between the counties of Cook, Illinois and Indiana, between the counties of Cook, Illinois, and Lake, Indiana; thence to Monticello; thence to Delphi; thence to Frankfort; thence to Indianapolis, over the routes to Delphi; thence to Frankfort; thence to Indianapolis, over the routes of said Indianapolis, Delphi & Chicago Railroad Company; thence to Shelbyville; thence to Greensburg; thence to the Ohio river, at Vevay, or Rising Sun; thence crossing the Ohio river to Kentucky; thence to Frankfort or Lexington; thence to Loudon or some point near; thence by either road to headwaters of the Savannah river to Anderson, in the state of South Carolina, or by the route from Loudon, or some point near it, to some point near the Cumberland Gap; and thence to Asheville, in the state of North Carolina, the objective points being Wilmington, North Carolina Charleston and Port Royal, or Foote's Point, South Carolina, and Augusta and Savannah in Georgia. And Whereas, the said Indianapolis, Delphi & Chicago Railroad Company is incorporated as a railroad company, and has been, and now is, obtaining, and is hereafter to obtain, subscriptions and donations for the purpose of building, maintaining, and operating said company: Now, therefore, the said Indianapolis, Delphi & Chicago Railroad Company and the said Chicago & South Atlantic Railroad Company, for the purpose of making the said Indianapolis, Delphi & Chicago Railroad Company a portion of the Chicago & South Atlantic Railroad Company, and for the purpose of securing an early commencement and completion of the work of building and operating said railroad company, do hereby make and enter into the following arrangements and agreements, to wit: (1) The Indianapolis, Delphi & Chicago Railroad Company, with all its property franchises, and privileges, shall from this day be operated, controlled, and absolutely owned in fee simple by the Chicago & South Atlantic Railroad Company aforesaid as a portion of the grand route from the city of Chicago to the South Atlantic Ocean, upon condition, nevertheless, that the said Chicago & South Atlantic Railroad Company, or their agents or assignee, shall on or before the first day of July, 1874, commence the construction of said Indianapolis, Delphi & Chicago Railroad within the state of Indiana, and shall thereafter prosecute the building of the same in good faith with such diligence as lies in their power until said Indianapolis, Delphi & Chicago Railroad shall be completed. (2) All moneys, lands, stocks, bonds, and other things of value that have been and shall hereafter be contributed, donated, or subscribed by any state, county, city, community, corporation, or individual for the purpose of constructing or maintaining the said Indianapolis, Delphi & Chicago Railroad shall from henceforth belong to and be absolutely owned by the Chicago & South Atlantic Railroad Company aforesaid, or their assignees, subject, however, to such provisions and conditions as shall hereafter be set forth, and to the laws of the state of Indiana, and the Indianapolis, Delphi & Chicago Railroad Company heretofore enacted. The principal condition of the ownership of said things of value by the Chicago & South Atlantic Railroad Company is fully understood and agreed to be the commencement and prosecution of the work of building the Indianapolis, Delphi & Chicago Railroad by the said Chicago & South Atlantic Company, their agents or assignees, and (in order to more fully secure both parties to this contract, and also the donors and subscribers mentioned) it is hereby agreed that the proceeds of all such subscriptions and donations shall in all cases where it is practicable be deposited in trust with Drexel & Co., bankers of Philadelphia, or George C. Smith & Bro., bankers in the city of Chicago, and in such local banks as may be mutually agreed upon by the Chicago & South Atlantic Railroad Company, their agents or assignees, and the party or corporation making the donation or subscription. All such donations or subscriptions shall thus remain as a special deposit in trust with said banks, until such time as hereafter stated, to wit, whenever and so soon as the Chicago & South Atlantic Railroad Company shall establish the fact (by the sworn statements of their engineers and contractors) that they have by their agents or assignees performed work upon the said Indianapolis, Delphi & Chicago Railroad to the value of ($50,000.00) fifty thousand dollars, then the Chicago & South Atlantic Railroad shall have the authority and right to draw (through the proper officers of their company) the sum of forth-five thousand dollars ($45,000.00), and for one hundred thousand dollars' worth of work they shall have the right to claim and own the sum of ninety thousand dollars, and so own for any other specified amount of work; it being the herein-declared intention to prescribe and agree that the herein-declared intention to prescribe and agree that the Chicago & South Atlantic Railroad Company, or their assignees, shall be entitled and have the right to draw on the above-mentioned deposits, and on all donations and subscriptions of said Indianapolis, Delphi & Chicago Railroad Company, to the extent of ninety thousand dollars, and so for any specified amount of work; it being the herein-declared intention to prescribe and agree that the Chicago & South Atlantic Railroad Company, or their assigns, shall be entitled to have the right to draw on the above-mentioned deposits, and on all donations and subscriptions to said Indianapolis, Delphi & Chicago Railroad Company to the extent of ninety per centum of the value of all the work actually performed by them; and that such donations and subscriptions shall not be obtained under any other conditions, or for any other purpose, and the said Chicago & South Atlantic Railroad Company shall have the right to thus draw upon and own all the donations and subscriptions above mentioned until the entire amount shall have been paid over to the said company on the terms and conditions above mentioned. The details and specific...