The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-01-03

material and the persons CONT ucting the
telegraph lines and the free uIeNrs tiie
telegraph by the Tal ire. comP ~ ny IL:
light of way to Smith 9. SIMMONS Upon
the line deS cribed, f0I TIC dsts I'D pu.-
poses of the line Of telegraph; and IN
the eleventh paragraph there is a furth-
er provision that as the ST. Paul <
Pacific Railroad company shall further
extend, construct and operate its said
road the said Smith IS Simmons may and
slall continue the same line Of telegraph
along the extended lines of said read
UpCS IL $50 f------ and conditions rs
thereinhefc-c ii.eil ti.Iisd.
IT seems to me that this is grant
of a perpetual easement or right TO
establish. ccntruct AMI continue il the
operation of a line of telegraph along
TIC line specified in the contract, ami
along such further lines of railroad as
shall be constructed by the st. Paul &
Pacific Railroad company and that Il
became vested property right at the
time
10 the contract that was made between
FARLEY as receiver and the Northwester
Ielegraph company. it appears that
prior to the time of that contract, Smith
* simmons, or at least Simmons, and
persons named therein as successors to
Smith, by a somewhat informal writ
ing, assumed to transfer all the interest
Of Smith q Simmons in that contract
to the Northwestern Telegraph company.
The Northwestern company had 4 limo
Of telegraph constructed between Sc.
Paul ana 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.
TOW much more was then constructed
/ do not know, but it extended as far
as the railroad was then built. 1t was
stated by Judge Young in his argument
tnat the pleadings in the case admit
VI tN.Irfa .NF1 a1N
was done up TO July 1, 1882, under the
contract called Contract "a" OF Oct
10, lSS But it appears that there WAS
this line OF telegraph III operation Oh
al extensions of the railroad prior 10
the contract entered into by Mr. Farley
with the Northwestern Telegraph com
panE on April 10, 1878, which contract
mas been read in evidence, anu was acted
upon during the administration OF Mr..
f&rley; during which time a consider
ab!e portion % the line was built from
some point near Breckenridge 10 st. Vim
cent, in order TO save the land grant
for reasons explained in the argument.
y me Of telegraph was also constructed
by the Northwestern company at tie
same time along this new extension OF
the railway by The receiver, and operat-
CD by the Northwestern company under
the Farley contract.
IL seems To me- that the right o. way
for the telegraph along this cxtens!oif
constructed by Farley was conveyed be
u re TO the predecessors OF the North
X H.
mems. contract. Tor reasons which L will
=. On Oct. Is, 1879 after the formation OF
the Manitoba COMPANY the present com
pl2inant, contract was entered into bc
tween that company and the North
western Telephone company. which then
operated and claimed to own the teIe-
graph INES as far as they We're con-
StruCted; which contract provided fha
tef1as on which that operation should be
carried on. and IN respect to the further
expense OF construction, and OF the
InalntenanCe of the lines; and the con-
tract itself. assumed to grant the right
OF way. IT says That said telegraph
and along TIE line OF the railroads Of 1Ta
Sald railway company for the c0nstruc-
tIoll ana use Of telegraph lines for COM
Ii!erclal business or public uses and
BUSINESS, and the railway company
covenants that it will not transport upon
us rallr2ads any men or material for
cotnpet1ng lines. except at the usual
a laueS; AiitEopgh mat clause does not
employ the technical language that is
ordinarily used in a deed of land or in
d grant Of any easement of land still
the language used. if fairly interpreted.
conveys this easement. 1t does not fix
any tuture time When it shall go into
operation, and although the words used
are III the future tense, still it seems to
me II would take effect immediate in
the nearest instant of the future after
1t was executed. But that language doe
noL appear 10 me TO be more than q
1H4Ither ASSURANCE Of the title that the
northwestern Telegraph company had
aready obtained through the Smith &,
summons contract Without re" enc u
Whether the right. Of ~: was conveyed
in fo".~cS f:lanlier, i'll this contract of
D 1919, it was conveyed in surb -
manner as TO show that the ether nal4[-
70 t4e contract, the Manitoba comDanT
Sillch mad succeeded to the rights Of 1he
81 raul d Pacific COMPANY recoenizeT
Inc Northwestern Telegraph company as
a,uthorIzed to build, maintain and oparate
Of ic11 NV
the right of way for lines; OF teIeeranbJ-
by the st. Paul & Pacific Railroad com
p pan to smith & Simmons by the seventh
ana eleventh paragraphs Of the contract
of Sept. q, 1868, was a then hen 1rese3t
3Iu vested grant; covering not ONLY the
Inc then particularly described b1lf
equaIIy the right of way along the rail
ways thereafter to be built by that COM
pany. ~ '-''' No1iA-
This grant was effective. although the
locauons in the future would be fixed
GhGMIlt NE by the locations of the railroad
"a An IN, Lhls grant of right of way was prior
70 the mortgage and net disturbed bv the
SSGjnecIoSuFe, 10 which neither Smith &
E2IL nm nor the Northwestern Tec-
rights appear to have been Recognized Nv
me court and the receiver during the
lore, doreci ios and by the Manitoba com
4 f9I5 lInIhleaiateiy afterwards and thence
ttoI" ard. ANA While there might have
peeh right on the part of Smith & Sim
mons, or whoever represented them 70
SNneSIIion the informal transfer to the
northwestern company, ! think after
such a recognition by the Manitoba com
pany ana expenditures by building and
nldlntenance of the lines of telegram nv
me northwestern company, that as lone,
as no one else questioned the right 81
the northwestern Telegraph company to
pulld and operate these lines, the rail
rights. eS'IoiA us
Afterwards and while this contract "a,
Of oct. Is, 1875 was in operation. the
ae@se was made by the Northwestern
SHUJtltp2aaiS 70 me otner defendant here the
dated May T. 1881 any
NOW that instrument on its face MIR
ports 10 be lease; it does not pIlrport
10 be a sale of the property It has ali
nc atItlbutes OF a lease. 1t has a ter
term for the return Of the property, bay-
lnS at The same time a provision that
the property shall be kept up, and Thar
the contracts shall be carried out: The
contracts Delng transferred for the pllr
pose OF being carried out; and also that
the improvements and rcDla cene i3fts
Shau remain during the term of tha
tease and the property returned in a,
Soou CONDITION at the end of the lease a.,
at NE Tune the devise took eeffect X is
3 3e upon valuable consideration: in
GSSu rage and ample Consideration
Nhen we consider the mortga ee which
me lessee was required to take care of
as far as interest upon the bonds wa,
concerned, and the dividends to be nail
70 me STOCKHOLDERS during the term and
mortgage debt, there was q large sIno,1nt
OF continued periodical payments to he
Indue upon this lease; with the right Of
fe,entry IN case of default
10Y 10Y whether the Northwestern Tee
us contracts with tho ia i1roo \ eo,.s'1 iSoIA