The Saint Paul globe., 1901-01-03

material and the persons CONT ucting @ tae
telegraph lines and the free u,e>s.E the
telegraph by the railroad company 90
carry messages: and also Il grant of the
light of way to Smith s: SIMMONS Upon
the line described, f0I tne dsts ,,4ld pu1
poses OF the line OF telegraph; and IN
the eleventh paragraph there is a furth-
er provision that as the ST. Paul K
Pacific Railroad company shall further
extend, construct and operate its said
road, the said Smith s. Simmons may and
shall continue the same line OF telegraph
along the extended lines of said read
upc2 thc s2~-- t'' and conditions as
thereil.hefc:cc iiil.ei,ti.liisd
Tt seems to me that this is grant
of a perpetual easement or right to
establish, cCntruct AMI continue il the
operation of line of telegraph along
tic line specified in the contract, ami
shall be constructed by the st. Paul 6
Pacific Railroad company, and that Il
became vested property right at the
time
1t is not perhaps necessary TO refer
10 the contract that was made between
Earley as receiver and the Northwestern
Telegraph company. 1t appears that
prior to the time of that contract, Smith
& Simmons, or at least Simmons, and
persons named therein as successors to
smith, by somewhat informal writ
ing, assumed to transfer all the interest
OF Smith Il Simmons in that contract
to the Northwestern Telegraph company.
The Northwestern company had a limo
Of telegraph constructed between Sc
Paul and Watab or between St. Paul and
st. Cloud, prior 10 the time of the COM
mencement of the foreclosure Of the rail-
way company's mortgage in which fore
closure Farley was appointed receiver.
lioW much more was then constructed
l do not know, but it extended as far
as the railroad was then built 1t was
stated by Judge Young in his argument
tp that the pleadings in the case admit
1Gt Gt1.Ifs ION Of ale
was Done up to July 1, 1882, under tie
contract called Contract a. Of Oct
10, 1879 But 1t appears that there was
this line OF telegraph III operation on
all extensions of the raiIroad prior TO
the contract entered into by Mr.. Farley
with the Northwestern Telegra ON com
panE on April 49, 1878, which contract
mas been read in evidence, and was acted
upon during the administration OF Mr.
farley; during which time a consider
aple portion o2 the line was built from
some point near Breckenridge 10 st. Vim
Gent, IN order TO save the land grant,
for reasons explained in the argument
y me OF telegraph was also constructed
py the Northwestern company at the
same time along this new extension OF
the railway by Inc recsiNeT, and operat-
cd by the Northwestern company under
the Farley contract.
1t seems to me that the light OF way
Tor the telegraph along this extension
constructed by Farley was conveyed be-
i re TO the predecessors OF the North
western company in the Smith & Sim
mons contract, for reasons which | will
Iefer to later
On Oct Is, 1879. after The formation Of
tGe Manitoba company, the present com
pl2lnant, q contract was entered into be-
tween mat company and the North
western Telephone company. which then
operated and claimed to own the teIe-
sts,trt stSpH Aiies as far as they We're con-
Sfucted; which contract provided the
ter1as on which that operation should be
CaIileo on and III respect to the further
expense OF construction, and OF the
maintenance of the lines; and the con
tract itself. assumed to grant the right
OF way 1t says THAT said telegra oh
company Shall have the right OF way on
adla aa; along tie line Of the railroads of the
Sald railway company for the construc-
tlon and use of telegraph lines for com
illerclaI business or public uses and
BUSINESS; and the railway company
covenants that it will not transport upon
us raiiroad3 any men or Material for
competing lines. except at the usual
rates. Although that clause does not
employ en14RIoy the technical language that is
ordinarily used in deed of land or in
grant OF any easement of land still
the language used. if fairly interpreted
conveys this easement. 1t does not fix
any future time When it shall 60 into
operation, and although the words usad
are IN the future tense, still il seems to
me 1t would take effect immediately in
y tlle 5,.d nearest instant of the future, after
lt was executed. But that language doe :
not appear TO me TO be more than a
further assurance Of the title, that the
MTorthWestern Telegraph company had
SimncS ieS oota!Iled through the Smith &
SUMMONS contract Without roc :.e;.,e u
whether the right. OH: was conveyed
IN "a to''-r 7s7o F;;,'nler = III this contract of
-, !, 1909, 1t was conveyed in sIIrh n
manner as to show that the other 1a,.+Ir
TO the contract, the Manitoba comnany
StHGIi mao succeeded to the rights of +he
r. ~ az! @ Facihc company, recognized
Lhe northwestern Telegraph company az
aa,uthor1zed to build, maintain and oparate
tiose nnes of telegraph The grant o.
bL1 bne rig rIlgnt IT. Of way for lines of teIegraphy
oy lEe 81. Paul & Pacific Railroad com
pany to Smith & Simmons by the seventh
.na M eleVenth paragraphs of the contra ct
Oh Sept; q, 1868, was a then present
Ino iinn Tgsled tIa' grant; covering not only the
nl. IiLie Ilen particularly described. but
equally the right of way along the rail
Ways thereafter to be built by that com
This grant was effective, although tI,a-
locations in the future would he fTaS
uGilllteIy by the locations of the RAILROAD
All Ihls grant of right of way was nyi0r
eo,CII 20 tlle mortgage and not disturbed by the
950reclosure, to which neither Smith r.
ollhnons nor the Northwestern TaIc
srSph company We're parties: and thesa
rights appear to have been recognized by
fnrecIoSn fne iourr and , the receiver during the
LoIec!osure and by the Manitoba COM
pany Immediately Afterwards and tbonna
forward And while there might have
,,ooII neeli Tlght on the part of Smith & Sim
fO
9qesflon the Informal transfer to the
NorthWeSteTn company l think sftar
such recognition by the Manitoba. com
pany and expenditures by building and
tnIldIl!Lehance ma of the lines of telegraph bV
the Northwestern company. that as long
as no one else questioned the right nf
the northwestern Telegraph company to
pulld ana operate these lines, the rail-
rights. 4ueS'io1i 1Is
Afterwards and while this contract "a"
OF OCT Id, 1873, was in operation the
lease was made by the Northwestern
company to the other defendant here the
western Union Telegraph company,
NOW that instrument on It's face pur-
ports 10 be lease; 1t does not nnrnort
10 To- De a sale Of the property 1t has ali
the attributes OF a lease 1t has a +er-
nina ton; it provides at the end ~ ~,
term Tor the return Of the property. baT-
ing al the same time a proVisioJ1 the+
tne property shall be kept llp. and fhaf
the contracts shall be carried out. T%e
contracts being transferred fo,, ~ ,,'II. IIe
pose OF being carried out; and also fha+
lhe improvements and reDIaceneDts
Shall remain during the term of tte
tooeI' tSo' dh9 the property returned in a.
Spo1 conoluon at the end OF the lease AZ
at the time the devise took eeffect r. is
niue upon valuable considera tior7. IN
9eed a Irage and ample considera+inn
~ w iien we consider the, mortgage which
CIe iessee was required to take care of
as far as interest upon the ho1ds -
concerned, and the dfylGeods 10 he III
TO the stockholders during the Term and
me ilnal payment of the principal, Of thg
OF continued periodical payments to he
!nade upon this lease; with the right Of
fe1,entry IN case of default.
SoH' whether the Northwestern Te-e
It's contracts with the railroad con,Tro1 s5 II
or not, the lease and the assienmopt ~. ~