The Northeastern Reporter Volume 133 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1922 Excerpt: ...defendant to be sound, and that its rights permit it to construct its tracks in the center of the road, with poles and overhead construction to correspond, before forfeiting its old right of way, and that the construction in the center of the highway shall be put down simultaneously with the improvement--assuming this to present the situation under a reasonable construction of the terms of the franchise, and applying it to the condition wo have before us, let us inquire into the question presented. "Simultaneously" means at the same time. In laying the tracks in the new location, whether new tracks or a removal of the old tracks, the company must provide the rails i necessary grading, installation of tracks, and paving of the roadway. To accomplish this there must be a time to begin. To make the new construction simultaneously with the improvement, the company must begin when the improvement begins, and throughout the whole work carry on the successive steps of its work along with the respective steps in the work of building the improvement. The contract for the improvement has been in force since before April 1st, and so far as the petition discloses, nothing has been done by the railway company towards the performance of any part of its obligations. In fact, the petition alleges that the company refuses to proceed with its part of the work. It is therefore clear that the company fails to proceed simultaneously with the improvement. Taking its own theory of the construction of the franchise the company cannot hide behind its own failure to act in one particular, and claim immunity upon the position taken by it in another particular. The demurrer will be overruled, and 30 days granted the defendant to file an answer. Demurrer overruled. JOHNSON, H...