or so that the railroad shall not unnecessarily impair its usefulness or injure its franchise;

May Cross or Connect Roads.

6. To cross, intersect, join, or unite its railroad with any other railroad, either before or after construction, at any point upon its route, and upon the grounds of such other railroad corporation, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the objects of its connections; and every corporation whose railroad is, or shall be hereafter intersected by any new railroad, shall unite with the owners of such new railroad, in forming such intersections and connections, and grant facilities therefor; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points or the manner of such crossings, intersections and connections, the same shall be ascertained and determined as is provided in title VII, part III, Code of Civil Procedure (secs. 1237-1263);

May Purchase Land, Timber, Stone, Gravel, etc.

7. To purchase lands, timber, stone, gravel or other materials to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts, or acquire them in the manner provided in title VII, part III. Code of Civil Procedure, for the condemnation of lands; and to change the line of its road, in whole or in part, whenever a majority of the directors so determine, as is provided hereinafter; but no such change must vary the general route of such road, as contemplated in its articles of incorporation;

Carry Persons and Freight.

8. To carry persons and property on their railroad, and to receive tolls or compensation therefor;

Erect Necessary Buildings.

9. To erect and maintain all necessary and convenient buildings, stations, depots, fixtures and machinery for the accommodation and use of their passengers, freight and business;

Regulate Time and Freights, Subject to Legislation.

10. To regulate the time and manner in which passengers and property shall be transported, and the tolls and compensa

tion to be paid therefor within the limits prescribed by law and subject to alteration, change or amendment by the legislature at any time;

Regulate Force and Speed.

11. To regulate the force and speed of their locomotives, cars, trains or other machinery used and employed on their road, and to establish, execute and enforce all needful and proper rules and regulations for the management of its business transactions usual and proper for railroad corporations;

Purchasing or Acquiring Franchises of Other Railroads.

12. To purchase, lease or acquire the franchises, rights and property, or any part thereof, of any railroad corporation, leasing or owning any railroad outside of the state of California, and to operate the same, and to use the franchises of any such road, and to build and operate extensions thereof; provided that nothing therein shall authorize any corporation to purchase the franchises, rights and property of any railroad operated in competition with it; and to purchase, acquire and hold the stocks, bonds or other securities of any railroad corporation organized under the laws of this state or of any other state or territory, with full power to sell the same; provided that nothing herein will authorize any corporation to purchase the stock of any railroad corporation operated in competition with it. En. March 21, 1872. Amd. 1903, 245.

Exceeding limit upon power to acquire realty: See ante, sec. 360,

C. C.

Eminent domain: See Code Civ. Proc., secs. 1237-1263.

Subd. 8. Rates of charges: See post, sec. 489, C. C. Establishment of rates by railroad commissioners: See Const. Cal., art. XII, sec. 22. Subd. 10. Regulating time and manner of transportation, time tables of starting: See post, sec. 481, C. C.

Legislative History.

The basis of this and the following chapter is the railroad act of 1861, page 607. Section 17 of that act is the precursor of this section.

Section Cited.

Eel R. & Eureka R. R. Co. v. Field, 67 Cal. 432, 7 Pac. 814; Arcata v. Arcata etc. R. R., 92 Cal. 645, 28 Pac. 676; Southern Pac. R. R. Co. v. Railway Co., 111 Cal. 227, 43 Pac. 602; Robinson ▼.

Southern Cal. Ry. Co., 129 Cal. 10, 61 Pac. 947; S. F. & S. J. Ry. Co. v. Leviston, 134 Cal. 415, 66 Pac. 473; Southern Pac. R. R. Co. v. Raymond, 53 Cal. 227, 228; Pacific Ry. Co. v. Wade, 91 Cal. 452, 25 Am. St. Rep. 201, 27 Pac. 768.)

Annotation.

1. To Survey Road.-The fact that plaintiff had, after preliminary survey, acquired a right of way over another portion of defendant's land, over which it might, though less advantageously, build its road, does not render the taking unnecessary. (Eel R. & E. R. R. v. Field, 67 Cal. 432, 7 Pac. 814.)

It is a mistaken construction of this section to suppose that a railroad corporation can enter upon land and commence construction of its road, under sanction of law, before commencing condemnation proceedings, notwithstanding the permission given herein to enter upon the land and make such examinations, surveys and maps as may be necessary. (Robinson v. Southern Cal. Ry. Co., 129 Cal. 11, 61 Pac. 947.)

The existence of a public use, and the location of a right of way through certain land establish the necessity for a right of way. (S. F. & S. J. V. Ry. Co. v. Leviston, 134 Cal. 415, 66 Pac. 473.)

2. May Accept Real Estate.-The provisions of this subdivision when read with subdivisions 1 and 3, and section 1001 of the Civil Code, held not to confer power upon a railroad corporation to enter upon land and construct its road, before commencing condemnation proceedings. (Robinson v. So. Cal. Ry. Co., 129 Cal. 11, 61 Pac. 947.)

See sec. 354, C. C., and notes on general power of corporation to acquire and dispose of real estate, ante.

Exceeding limit upon power to acquire realty: See sec. 360, C. C., and notes, ante.

3. May Acquire Real Estate.-Under this, and subdivisions 3, 7 and 9, of this section, a railroad company has power to condemn land for a site whereon to erect and maintain permanent and suitable buildings for workshops, for repairing the cars and locomotives of the company, and for safely keeping the same. (So. Pac. R. R. v. Raymond, 53 Cal. 226.)

4. Lay Out Road, etc.-Construing subdivisions 1 and 7 with this subdivision of this section, it is held, in proceeding to condemn land, a railroad corporation has power to acquire right of way in accordance with the most advantageous route for its road, and the taking for such purpose is not rendered unnecessary by the fact that it had previously purchased a less advantageous right of way over land of defendant. (Eel River etc. Ry. Co. v. Field, 67 Cal. 429, 7 Pac. 814.)

And it is held from a consideration of the same subdivisions of the section, the existence of the public use and the location of the right

of way establish the necessity therefor. (S. F. etc. Ry. Co. v. Leviston, 134 Cal. 415, 66 Pac. 473.)

5. Where May Construct Road. This provision does not permit a steam railroad to acquire a right of way for its road over a street in a municipality, the fee in which is owned by an abutting proprietor, except upon compensation first made to him. (Weyl v. Sonoma Valley R. R., 69 Cal. 202, 10 Pac. 510. To same effect: Finch v. Riverside etc. Co., 87 Cal. 598, 602, 25 Pac. 765; but ruling aliter as to construction of street railway under municipal franchise. Distinguished: Montgomery v. Santa Ana etc. Co., 104 Cal. 196, 197, 43 Am. St. Rep. 98, 99, 37 Pac. 786.)

Urban servitudes are essential to the enjoyment of streets in cities, and include the authority to use the street for the track of a railway company under license by city authority, without previous compensation to the owner of the fee. (Montgomery v. Railway Co., 104 Cal.

186, 43 Am. St. Rep. 89, 37 Pac. 786.)

This section confers the authority to construct the railroad on any highway or street subject to the condition contained in section 470, Civil Code, that the consent of two-thirds of the council or board must be obtained before any street or avenue of an incorporated city or town can be taken therefor. (Arcata v. Arcata etc. R. R., 92 Cal. 645, 28 Pac. 676.)

The whole of a road as laid out having been dedicated as a highway, a railroad corporation has a right to construct its railroad therein, and may enjoin a grantee, whose land is adjacent to the part of the road not actually used by the public, from tearing up its track. (Southern Pac. Co. v. Ferris, 93 Cal. 263, 28 Pac. 828.)

6. May Cross or Connect with the Roads.-This subdivision of this section prescribes the method to be followed generally in ascer taining the compensation to be paid for the connections permitted by it, but has no reference to street railroads, which are governed in this behalf by section 499 of the Civil Code. (Pacific Ry. Co. v. Wade, 91 Cal. 452, 25 Am. St. Rep. 201, 27 Pac. 768.)

Exercise of Right of Eminent Domain.-It is well settled that railroads for public travel are public improvements, in behalf of which the power of eminent domain may be legitimately exercised. (Napa R. R. Co. v. Napa Co., 30 Cal. 437; Stockton R. R. v. Stockton, 41 Cal. 147; S. F. etc. R. R. Co. v. Caldwell, 31 Cal. 367; Contra Costa R. R. Co. v. Moss, 23 Cal. 323; Fox v. R. R. Co., 31 Cal. 538; Cal. P. R. R. v. C. P. R. R., 47 Cal. 549; S. P. R. R. v. Raymond, 53 Cal. 223; S. P. R. R. v. Wilson, 49 Cal. 390; Sac. V. R. R. v. Moffatt, 7 Cal. 577; C. P. R. R. v. Pearson, 35 Cal. 247; C. P. R. R. v. Frisbie, 41 Cal. 356; Cal. P. R. R. v. Armstrong, 46 Cal. 85.)

See constitutional right of railroad companies to intersect, connect with, or cross, other railroads, sec. 17, art. 12, Const., ante.

7. May Purchase Land, Timber, Stone, etc.-On exercise of right of eminent domain, see note to previous subdivision.

The power conferred by this subdivision admits of the acquisition of lands, etc., by condemnation proceedings, not only for the construction and maintenance of the road, but also for all necessary appendages and adjuncts. (So. Pac. R. R. v. Raymond, 53 Cal. 228. To same effect generally: S. F. & S. J. R. R. v. Leviston, 134 Cal. 415, 66 Pac. 473.)

And a railroad corporation has power to acquire a right of way in accordance with the most advantageous route for its road, and the taking for such purpose is not rendered unnecessary by the fact that it had previously purchased a less advantageous right of way over certain land. (Eel River etc. R. R. v. Field, 67 Cal. 429, 7 Pac. 814.)

8. Carry Passengers and Freight.-If a passenger is ready and willing, and offers to pay the legal fare when demanded by the conductor of the train, the railroad company is bound to carry him, provided there is room in the cars and the passenger is a fit person to be admitted. (Tarbell v. C. P. R. R. Co., 34 Cal. 616.).

General Powers.-Under the act of May 20, 1861, upon which this section is based, railroad corporation possessed all the power and privileges for the purpose of carrying on the business of the corporations that private individuals and natural persons had. (Pixley v. R. R. Co., 33 Cal. 183, 91 Am. Dec. 623.)

A railroad company may contract to carry beyond its own line, and will be liable for the acts or negligence of connecting carriers(Wheeler v. Railroad Co., 31 Cal. 46, 89 Am. Dec. 147. To same effect: Carrigan v. S. P. Co., 81 Cal. 251. Note citations: 56 Am. Dec. 84; 59 Am. Dec. 450; 66 Am. Dec. 430; 74 Am. Dec. 512; 2 Am. St. Rep. 61; 4 Am. St. Rep. 89. See, also, Pereira v. C. P. R. R., 66 Cal. 92; 4 Pac. 988; Lundy v. C. P. R. R., 66 Cal. 191, 56 Am. Rep. 100, 4 Pac. 1193. Note citation: 72 Am. Dec. 231, 240, 242.)

So also a railroad company has power to run a steamboat for carrying freight or passengers to terminus. (Wheeler v. R. R. Co., 31 Cal. 46, 89 Am. Dec. 147.)

And a railroad corporation has power, upon a sufficient consideration, to guarantee the payment of the bonds of another railroad company. (Lower v. Central Railroad Co., 52 Cal. 53.)

And a street railroad corporation has power to execute a note with a view to increase its business. (Temple Street Cable Ry. v. Hellrian, 103 Cal. 634, 37 Pac. 530.)

The act of a railroad corporation in dedicating a portion of its land as a highway for the public is not ultra vires, and the intention to dedicate can be shown by the testimony of the directors A formal resolution of intention entered upon the minutes is not necessary. (People v. Eel River etc. R. R. Co., 98 Cal. 665, 33 Fac. 728.)