REPORT 
TO THE 
GOVERNOR AND THE ATTORNEY~GENERAL OF GEORGIA 
 Upon the Claim of the Southern Railway to an Interest in the Chattanooga Passenger Depot 
OF THE 
WESTERN & ATLANTIC RAILROAD and Related Matters 
BY 
HOOPER A LEXANDER 
Atlanta The Franklin-Turner Co. 
B)o8 
 
  REPORT 
ATLANTA, GA., June 15th, 1908. 
To his Excellency Governor Hoke Smith, and H on. John C. Hart, Attorney-General, Atlanta, Ga. DEAR SIRs: Shortly after the General Assembly ad- 
journed in 1907, Mr. W. A. Henderson, of Knoxville, representing the Southern Railway Company verbally made known to the Governor that his company claimed an interest in the Western & Atlantic Passenger Depot at Chattanooga, and that, being no-longer in the use and enjoyment thereof, it would expect to be reimbursed for its expenditures thereon. Thereafter Mr. Henderson addressed a letter to the Governor on October 16, 1907, which, with the copy deed in said letter enclosed and referred to, is here set out. 
W ASH1NGTON, D. C., October 16, 1907. 
Hon. Hoke Smith, Governor of Georgia, Atlanta, Ga. DEAR SIR: You told me to again call your attention 
to the Chattanooga union depot litigation w1'thin about two weeks after I last saw you, which matter you and General Hart have under consideration, and in which I hope you may have reached some fair couclusion. 
I have heretofore given you a digest of the voluminous record of the litigation concerning that matter, but beg to enclose herewith a copy of the title which the Nashvile & Chattanooga road has in the premises. You will note that it is of the same general character as our title, 
 
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and in the covenants our title is mentioned and recognized. It might be well enough for you to place this with the other papers. 
I will hold myself in readiness to go to Atlanta at any ~ime you would want another personal conference. 
Very truly yours, 
Vv. A. HENDERSON, 
General Solicitor. 
The following document, purporting to be a deed from the Governor of Georgia in I86o to the Nashville & Chattanooga Railroad, accompanied the letter of Mr. Henderson.: 
DEED, J. E. BROWN, GovERNOR, To N. & C. R. R. 
CoMPANY. 
OFFICE OF THE \V. & A. RAILROAD, CHATTANOOGA, TENN., August I7, I86o. 
Whereas, on the IJth day of November, I855, V. K. Stevenson, as president of the Nashville & Chattanooga Railroad, and James F. Cooper, as superintendent of the Western & Atlantic Railroad, agreed in writing, subject to the ratification of the board of directors of the N. & C. Railroad Company and of his Excellency H. V. Johnson, then Governor of Georgia, to exchange certain lands belonging to said company and to the State of Georgia in the said city of Chattanooga at and about the place now known as the passenger depot near the Crutchfield House upon certain terms specified in said agreement, with the view to the erection of a passenger depot, which said contract was ratified by his excellency H. V. Johnson the IJth clay of December, I8SS and by the board of directors of the iNashville & Chattanooga Railroad Company on the 24th da,y of December, I8SS; and whereas 
 
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on the 24th day of March, 1858, a contract was entered 
 
into between James A. Whiteside, director and a mem- 
 
ber of the executive committee of the N. & C. R. R. Co., 
 
and John M. Lewis. the then superintendent of the W. & 
 
A. Railroad, in modification of the formm contract be- 
 
tween the authorities of the said road for building of a 
 
passenger depot upon the lien of the grounds which were 
 
to belong to the said company and said State of Georgia 
 
under said first mentioned contract which said depot has 
 
bee-n erected by the said John M. Lewis, as Superintendent 
 
of said W. & A. R. R., under said contract last men- 
 
tioned which was ratified by me, as Governor of Georgia, 
 
on the 5th clay of April, 18'58, which said depot is now 
 
own6d by the authorities of said two roads, and by the 
 
East Tenn. & Ga. Rwy. Co., which said company by its 
 
President C. Wallace by a writing on the back of said 
 
agreement, agreed to take an interest in said depot, the 
 
said Western & Atlantic Railroad, under said contract, 
 
has one of the four tracks In said depot, the Nashville & 
 
Chattanooga Railroad Company one track, the East Ten- 
 
nessee & Georgia Railway Company one, and the re- 
 
maining or fourth is leased to the Memphis and Charles- 
 
ton Company for thirty years if said company wishes to 
 
keep it so long, which lease has been about one year for 
 
the use of said track said Memphis & Charleston Railroad 
 
Company is to pay interest on ten i:housancl dollars at 
 
seven per cent. or seven hundred dollars per annum, of 
 
this sum, one-half or three hundred and fifty dollars be- 
 
longs to the Western & Atlantic Railroad and the other 
 
half or three hundred and fifty dollars 1s to be divided 
 
equally between the Western & Atlantic Railroad, the 
 
Nashville & Chattanooga Railroad Company and the East 
 
Tennessee & Georgia Railway Company if said last 
 
named company claims, and at the end of said lease said 
 
track is to belong to the said three roads in the propor- 
 
tions above mentioned, to-wit: The Western & Atlantic 
 
Railroad to have half of it, the other half to belong 
 
jointly to the three roads. 
 
Now for the purpose of settling all difficulties and mis- 
 
understandings between the authoriti'es of said roads and 
 
of carrying out the contract entered into by my said 
 
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predecessor in office, for and in consideration of the fact 
 
 
 
above recited, and of the sum of eight thousand dollars 
 
by said Nashville & Chattanooga Railroad Company to 
 
be Immediately paid into the treasury of the Westem & 
 
Atlantic Railroad Company and for the further consid- 
 
eration that said last named company is to convey to the 
 
State of Georgia for the use of the Western & Atlantic 
 
Railroad before this deed shall take effect or a convey- 
 
ance to said company the tract or piece of ground in said 
 
city of Chattanooga containing- ninety-six hundredths 
 
of one acre, more or less, commencing at the southeast 
 
corner of the original depot grounds of the Western & 
 
Atlantic Railroad at a stone corner and running down 
 
the present track of the Western & Atlantic Railroad on 
 
the south side thereof at a distance of three feet from 
 
the south side of said track following- the course of said 
 
track to the eastern boundary line of the six acre tract 
 
bought by the Nashville & Chattanooga Railroad Com- 
 
pany from B. R. Montgomery, thence north 20 degrees 
 
west with side line about 24 feet to the right_ of way of 
 
the Western & Atlantic Railroad, thence along the line 
 
of the said right of way to the depot grounds of the 
 
Western & Atlantic Railroad, thence with the line of said 
 
depot grounds to the beginning point. 
 
For all these considerations together, I, Joseph E. 
 
Brown, Governor of the State of Georg-ia have and do 
 
hereby sell and convey to the said Nashville & Chatta- 
 
nooga Railroad Company the tract or parcel of land now 
 
belonging to said State in said City of Chattanooga, em- 
 
braced within the following boundaries, which I do not 
 
consider necessary to the Western & Atlantic Railroad 
 
for depots, woodyards, nor water stations, nor do I con- 
 
sider that it will be now or at any other time necessary or 
 
or convenient to said road, to wit: Commencing at a 
 
point on the south side of Ninth street, where a direct 
 
line run through the center of the passenger depot build- 
 
ing would strike said street and running through the 
 
center of said passenger shed or house and center- 
 
ing said line run from said starting point through 
 
the center of said building to a point two hun- 
 
dred and fifty feet from the said passenger depot on 
 
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the south side thereof, thence on a line run on a regular curve to the stone at the southeast comer of the original depot, north 70 west 91 1 feet to the corner stone of the tract owned by the Western & Atlantic Railroad, on Chestnut corner Carter street, thence north 20 east along the li'ne of said street eight hundred and seventytwo (872) feet to another comer stone of the depot ground on North street, thence along the line of Ninth street, to the beginning, supposed to contain eight acres and seventy-nine hundredths, this conveyance of the ground covered by one-half of said depot building does not convey any right in the former part of this deed when 
the rights of the respective company to the use and own- 
ershi'p of said depot building and track are fully defined. 
To have and to hold the said bargained premises last 
named unto the said IN1ashville & Chattanooga Railroad Company forever in fre simple. 
In witness whereof, I, as Governor of said State have hereunto set my hand and seal the day and date abOve 
 
mentioned. 
 
Witness 
M. J. CAMDEN, 
 
JosEPH E. BROWN, [Seal] 
Governor of Georgia. 
 
J. A. WHITESIDE 
 
STATE oF TENNESSEE, Hamilton County. 
Personally appeared before me Charles W. Vinson, clerk of the county court of Hamilton county, aforesai'd, 
M. J. Camden and James A. Whiteside, the two sub- 
scribing witnesses to the foregoing- conveyance, with each of whom I am personally acquainted, who after being sworn say that they are both personally acquainted with Joseph E. Brown, Governor of Georgia, and that he ex- 
ecuted said deed in their presence on the day i't bears date 
for the purpose therein expressed. Witness my hand at office in Chattanooga the 31st day 
of August, 186o. CHAS. W. VINSON, Clerk. 
Per J. P. M. Millen, D. C: 
 
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STATE OF TENNESSEE, Hamilton County. Register's office September the 3rd, I86o, at 9 o'clock 
a.m., then was the foregoing deed with its certificate received for registration, and is now of record in my office in Book N, pages I83, I84, I85 and I86. 
Witness my hand at office in Harrison the day and date last above written. 
A. W. MooRE, Register. 
STATE OF TENNESSEE, Hamilton County. I, H. F. Rogers, register of Hamilton, certify that the 
foregqing pages and two lines are a true, perfect and cor- 
rect copy of the foregoing deed from J. E. Brown, Gov- 
ernor, to Nashviiie & Chattanooga Railroad Company, together with certificates of probate and registration as the same remains of record in my office in Book N, pages I83 et seq. 
Witness my hand at office in Chattanooga, Tenn., this 23rd day of November, I89o. 
W. F. RoGERS, Register. 
The "digest" referred to in the foregoing letter is presumed to be embraced i'n the foiiowing documents which had been previously handed to the Governor or sent him, presumably by the auth9rity of the Southern Railway, embracing an abstract of contracts, litigation, etc., and 
copies of two letters from President J. W. Thomas, of 
the N. C. & St. L. Railway, dated November 28, I89o, and March I I, I89I, respectively. 
OuTLINE oF TITLE oF SouTHERN RAILWAY To AN INTEREST IN THE UNION STATION AT CHATTANOOGA, TENN. 
Originaiiy the land upon which this depot was erected belonged to the State of Georgia. In I857 the Governor 
 
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of that State made an agreement which was enlarge-d in r858, by which the Governor of the State conveyed to Nashville & Chattanooga Railroad Company half of the land upon which the depot is situated, dividing it by a centerline running back from Ninth street, the western half belonging to the Nashville Road, the eastern half to the State of Georgia. It is contended that the Governors, Johnson and Brown, had no right to make this conveyance. 
Lette-r of Assistant General Counsel \V. A. Henderson to President Samuel Spencer. 
I. 
On September 12, r857, the ~.~-'ashville & Chattanooga Railroad Company and the \Ve-stern & Atlantic Railroad entered into an agre-ement to build a passenger house in Chattanooga: The Western & Atlantic to control twothirds, the Nashville & Chattanooga Company to pay ten thousand dollars towards the cost of said house- and to be entitled to one-third of the building when completed. 
II. 
March28, r858,a modificationof thatcontract was made by another contract of said date, by which the W. & A. Railroad was to build the house with all due economythe N. & C. Railroad Company to own one-fourth, embracing the western track, and to pay ten thousand dollars; the E. T., V. & G. to take one-fourth at ten thousand dollars; the W. & A Railroad to take one-fourth at ten thousand dollars; the remaining one-fourth to belong equally to the three. If the cost of the house e-xceeded $3o,ooo, then the W. & A. Railroad was to be reimbursed to the amount of the excess, but not to exce-ed $s,ooo. 
III. 
By another undated contract, signed by V. K. Steven- 
son, President of the N. C. Railroad, by J. H. Whiteside 
 
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and J. M. Spurlock, Superintendent if tho W. & A. Rail- 
road, after satisfying the wants of the W. & A. Railroaa as to depot grounds, the E. T., V. & G. Railroad Company was to have access to and occupation of the passenger house sufficient and grounds for their tracks for conducting transportation into and through the depot; and also sufficient grounds to be thereafter designated for railroad tracks and for conducting their freight business with connecting roads, by pay1'ng to the Superintendent of the W. & A. Railroad the original cost of the depot and grounds as might in that event be obtained by the E. T., V. & G. Railroad Company. 
IV. 
After the building was completed, the E. T., V. & G. Railroad Company occupied the same, using one particular track in the depot. A one-fourth Interest was leased to the M. & C. Railroad Company at $700 per annum. 
v. 
After the close of the war theW. & A. Railroad made certain improvements and repairs to the depot and premises and thereafter, on the4th of October, 1873, filed a bill in the name of the State of Georgia, by the Governor and Comptroller-General, against the N. & C. Railroad Company, the E. T., V. & G. Railroad Company and the M. & C. Railroad Company, to collect the pro rata from these different roads of the cost of the improvements. This cause was No. I 367 in the Chancery Court of Hamilton county at Chattanooga. In that cause the M. & C. Railroad Company disclaimed title .and thereupon an amended bill was filed in order to prevent the allegations in the original bill from working an estoppel in favor of the M. & C. Railroad. This cause was tried and prosecuted to a conclusion. After proof was taken a decree was rendered in the cause, in which it recited "From all of which it appears that the respondents, the East Tennessee, Virginia & Georgia Railroad Company 
 
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and the IN. & C. Railroad Company are each joint owners with the State of Georgia in the depot at Chattanooga, known as the Union Passenger Depot, fronting on Ninth street, in said city and running back in a southerly direction and that each of said respondents own one-fourth interest in the same and complainant one-half, as shown by the written contract of the parties. And because it further appears to the Chancellor that since the respondents have been such joint owners of said depot as aforesaid and the complainant has made large expendi'tures of money in necessary and proper repairs of said depot and premises, each of the respondents are liable and bound to contribute one-fourth of the same, etc. 
VI. 
The E. T., V. & G. Railroad Company used and occupied and claimed this one-fourth interest in the Union Depot as its own. and paid taxes on it after the term of the exemption of the railroads from taxation expired, said E. T., V. & G. Railroad Company paid one-fourth ofthe taxes on said property, which, including the taxes, as we interpret it, also upon the land upon which the depot was built. These taxes were both State, county and municipal. 
The value of the depot at the time it was placed on the ground was very large in proportion to the value of the ground. The original depot, while described in cause No. 1367, as fronting on Ninth street, in reality was hack away from Ninth street some 7S or 100 feet; and this description we are of the opinion was thus made in view of the fact that all the parties looked upon the Union Depot as embracing the ground~ upon which the depot was situated out to and including the street. Some time since extensive improvements, amounting to about $w,ooo, were placed upon the depot. These improvements consisted in the building of a large two-story brick .addition in front of the old depot proper, and also the extension of the sheds in the rear of the old depot. Both of these improvements were made upon the ground nqt at all covered by the original depot. The building as 
 
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now standi'ng lacks fifteen or twenty feet of commg to the street line of Ninth street. The improvements, however, which were made, included improvements. upon the ground in front of the depot and the sidewalk on Ninth 
street. For all these improvements the E. T., V. & G. Railroad paid one-fourth, the N., C. & St. L. Railroad 
Company, the successor of the N. & C. Railroad Company, paid one-fourth, the W. & A. Railroad paid onefourth, and the M. & C. Railroad Company, which claimeel title by virtue of a parol purchase of one-fourth interest, or of a written contract which is lost, paid onefourth. 
Suit was instituted by the E. T., V. & G. Railway Company aga1nst the N., C. & St. L. Railway Company et a!., having for its object the sale and partition of this property. The Chancellor, when he cleciclecl this case. held that neither the Southern, nor the M. & C. had any title to the land upon which the depot was situated, but held that each company occupying it was entitled to its proportion of the value. of the depot improvements in proportion as the amount paid in by them respectively on account of additions and improvements bore to the value of the depot houses, and ordered a reference to the master to report this value, with the proviso that the Nashville, Chattanooga and St. Louis Railway Company, or the State of Georgia should within the time to be fixed, pay in this value, or else that the improvements should be sold. 
This case was heard in the Court of Chancery Appeals, and on OctcYber 20, r897, a decree was entered reversing the Chancellor's decree and holding as follows: 
First-That the ground upon which the Union Depot at Chattanooga, Tenn., stood belonged to the State of Georgia. 
Second-That the Union Depot building was constructed under contract between the N., C. & St. L. R. Co., E. T., V. & G.; M. & C. and W. & A. (lessees of .the State o.f Georgia), whereby each was to contribute one-fourth of the expenses of construction, and was to use the building as a joint terminal so long as any one 
 
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of them desired to do so; that the tracks we-re distributed among the four roads; that the E. T., V. & G. should have sufficient ground for ingress and egress to and from the depot; that each was to contribute- onefourth of maintenance; that the Southern Railway, as assignee of the E. T., V. & G. R. Co., was entitled to use the privileges secured by the- contract so long as it desired to do so, and so long as it complied with the conditions of the contract for joint maintenance. 
Third-That the plaintiffs were not entitled to havea sale of the Union Depot property for division of prol'<'eds. 
Frorp this decree the Southern Railway obtained a writ of error to the Supreme Court on October 26, I8g8, that court entered a decree affirming the decree of the Chancery Court of Appeals except so much thereof as adjudicated that the Southern Railway Company and the M. & C. were entitled to use the priv1leges secured to them by the contracts set out in the original and amended bills, for the reason that the question of their present right to use such privileges was beyond the pleadings in the case. This cause above stated was struck out, but the decree in all of the other respects was affirmed. 
COPY. 
NASHVILLE, November 28, I8go. 
Messrs. Poston & Poston) Attorneys, M emphis1 Tenn. 
GENTLEMEN: Referring to yours of the 26th. My information is that the original Union Depot at Chattanooga was erected in I858 by the Western & Atlantic R. R., the East Tennessee, Virginia & Georgia R. R. and the Nashville & Chattanooga Railroad Company under a contract which you will find recorded in the Register's Office at Chattanooga, September 3, I86o, Book N, page I83, by which theW. & A. has one of the four tracks, the N. & C. one. and the East Tennessee 
 
 14 
 
one track, and the fourth track was leased to the Memphis & Charleston R. R. for a term of thirty years, for which they were to pay $700 per year. Of this sum, $350 belongs to the Western & Atlantic, the other half to he divided equally between the W. & A., N. & C. and the East Tennessee Railway, the track so leased at the end of the lease to belong to said roads in the proportion in which they receive pay therefor. 
 
Yours truly, 
 
(Signed) 
 
J. w. THOMAS, 
 
President. 
 
COPY. 
 
NASHVILLE, TENN., March II, 1891. 
 
C. H. Hudson, Esq., General Manager, Knoxville-, Tenn. 
 
DEAR SIR: Referring to yours of the gth. My understanding is that the records of Hamilton county show 
that the W. & A. own 6-16, the N., C. & St. L., 5-16, and the E. T., V. & G., 5-16, of the Union Depot at 
Chattanooga, and that Memphis & Charleston only leased 
the use of this building for thirty years from November, 
1858, agreeing to pay $700 per annum, $350 to the W. & A., and $150 each to the N. & C. and the E. T., V. 
& G. I do not wish to gfve any annoyance or trouble in 
regard to this matter; only desire to put this company on 
oo record so that the title to the buildinrr can not im- 
paired by the continued use by the Memphis & Charles- 
ton without, as we think, any legal title to the property. 
 
Yours, trulr 
 
(Signed) 
 
]. W. THOMAS.. President. 
 
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Subsequently and in response to a letter written by Attorney-General Hart to Governor Smith on March 12, . 1908, the Governor desired me to inquire fully an.d at large in reference to the matter referred to, and report thereon, and at the same time report in regard to such other major claims to and occupations of the right of way of the Western & Atlantic Railroad as might be possible in advance of the next meeting of the General Assembly. I have accordingly made such inquiries both in Georgia and Tennessee and taken such steps as seemed of most pressing importance and I herewith lay the result of my inquiries before you. 
The rights of the State of Georg-ia to constru<At: and maintain the Western & Atlantic Railroad within the limits of the State of Tennessee depend upon two Acts of the Tennessee Legislature passed January 24, 1838, and February 3, 1848, and here set out as follows : 
AN AcT 
To authorize the State of Georgia to extend her Western & Atlantic Railroad from the Georgia line to some point on the eastern margin of the Tennessee river. 
SEcTION 1. Be it enacted by the General Assembly of the State of Tennessee, That the State of Georgia shall be allowed the privilege of making every necessary recognizance and survey for the purpose of ascertaining the most eligible route for the extension of her Western & Atlantic Railroad from the Georgia line to some point on the eastern margin of the Tennessee river. 
SEc. 2. Be it further enacted, That as soon as said route and point shall be ascertained the State of Georgia shall be allowed the right of way for the extension and construction of her said railroad from the Georgia line to the Tennessee river, and that she shall be entitled to 
 
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all privileges, rights and immumties (except the sub. scription on the part of Tennessee) and be subject to the same restn.ctions, so far as they are applicable, as are granted, made and prescribed for the benefit, government and direction of the Hiwassee Railroad Company. 
SEc. 3 Be it further enacted, That the foregoing rights and privileges are conferred upon the State of Georgia on condition that whenever application is made she w1ll grant and concede similar ones, and to as great an extent, to the State of Tennessee or her incorporated companies. 
JoHN CocKE, 
Speaker of the House of Representatives.. 
 
Passed January 24, I838. 
 
TERRY H. CAROL, Speaker of the Senate. 
 
AN AcT 
Conferring upon the State of Georgia additional rights in relation to the Western & Atlantic Railroad. 
Be it enacted by the General Assembly of the State of Tennessee, That all the rights, privileges and immunities, with the same restrictions which are given and granted to the Nashville & Chattanooga Railroad Company by the Act of the General Assembly of this State incorporating said company, passed December I I, I845, are so far as they are applicable, hereby given to and conferred upon the State of Georgia, to be enjoyed and exercised by that State in the construction of that part of the Western & Atlantic lying in Hamilton county, Tennessee, and in the management of its business. 
P. BucHANAN, Speaker of the House of Representatives. 
J. M. ANDERSON, 
Speaker of the Senate. 
 
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Inasmuch as these Acts refer to the Charters of the Hiwassee Railroad Company and the Nashville & Chattanooga Railroad Company, these charters are here set forth, except such portions thereof as refer merely to. details or corporate organization and which are therefore presumed to be manifestly immaterial. The charters are as follows : 
AN AcT 
To incorporate the Hiwassee Railroad Company. 
SEcTION r. Be it enacted by the General Assembly of the State of Tennessee, That William Park et al. be and are hereby appointed commissioners, under a direction of a majority of whom subscriptions may be received to the capital stock of the Hiwassee Railroad Company,. hereby incorporated, which commissioners, together with such other persons as now are or may hereafter become associated with them, their successors and assigns, shall constitute a body corporate, and they are hereby incorporated under the name aforesaid, and in that name they shall have perpetual succession, may sue and be sued, plead and be impleaded, and shall posse~s and enjoy all the rights, privileges and immunities, with power to make such by-laws, ordinances, rules and regulations, not inconsistent with the laws of this State and the United States, as shall be necessary to the well ordering and conducting the affairs of said company; and may by their by-laws, declare vacant the place of any director for nonattendance or neglect of duty; and the said company shall be capable in law of purchasing, accepting, selling, leasing and conveying estates, real, personal and mixed, to the end and for the purpose of facilitating the intercourse and transportation from Knoxville, East Tennessee, through the Hiawassee District to a point on the Southern boundary of Tennessee, to be designated by the commissioners hereinafter mentioned as the most practical route to intersect the contemplated rai'lroad from Augusta to Memphis. 
2r 
 
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SEc. I I. be II enacted, That the said President and Directors shall have power to appoint a cashier and all such office-rs, engineers, agents or servants whatsoever deemed necessary for the transaction of the business of the company, and may remove any of them at pleasure; may fix the salary or compensation of such cashier, engine-ers, officers or servants m the employ of said company, and determine by their by-laws and manner of adjusting and settling all accounts against the company, and also the manner, effect and evidence of transfer of stock in said company. 
SEc. I3. Be it enacted, That the. President and Directors of said company shall be, and they are, hereby vested with all the powers and rights necessary for the bmlding, constructing and keeping in repair of a railroad from Knoxville, East Tennessee, through the Hiwassee District, to a point on the Southern boundary of Tennessee, on the nearest, best and most practicable route. 
The said road shall have as many tracks as may be deemed ne-cessary by the Board of Directors, but shall 11ot be more than two hundred feet wrde, to which width the company may purchase and cause the same to be con.demned for the use of said road, or any less breadth, at the discretion of the Directory, and they may be caused to be made, or ~ontract with others for making of said road, or any part thereof, and they or their agents, or those with whom they may contract for making- any part .of said road may enter upon, use and excavate any land which may be laid out for the site of said road, or the erec6o11 of warehouses, engine arbors, reservoirs, booths, stables, offices and mechanics' shops. or other works necessary or useful in the construction or repair thereof or of its works. 
They may fix scales and weights, build bridges, lay rails, make embankments and excavations, and may use any earth, ground, rock, timber or material which may be wanted for the construction and Pepair of any part of said oad, and may construct any may acquire all necessary steam engines, cars, wagons and carriages for transportation on said road hy horse or steam power, and all necessay apparatus appertaining to the 6ame. 
 
 19 
SEc. 14. Be it enacted, that whenever it shall become necessary after said road is laid out, to subject the land of individuals over which satd road is laid out to the use of said company, and if the right of soil of the owner can not be had by gift or purchase, it shall be lawful for the President and Directors, their agents, contractors, laborers and servants to enter upon such lands and proceed in the opem'ng and constructing of said railroad through the same ; the pendency of any proceeding in any court, or before arbitrators, assessors or valuers, to estimate the damages that will be sustained by the owner or proprietor of said land by reason of opening of said road shall in no manner hinder or delay the progress of said work, and no order shall be made, nor any injunction or supersecl6as be awarded by any judge or court to hinder or delay the progress of said work, the true intent of this Act being that all injury that may be done to any land without the consent of the owners or proprietors thereof, by opening or constructing the railroad through the same, over and above the advantages of the road to the owners or proprietors of the lands, shall be fully and completely compensated for damages when ascertained, so that a work of great publtc utility may not be delayed by lawsuits. 
SEc. 1 5 Be it enc:cted, That the President and Directors of said company, their officers, servants and agents, shall have full power and authority to enter upon all lands and tenements through which they may judge it necessary to make said road, and lay out the same according to their pl6asure, so that neither the dwelling house, yard, garden, nor curtilage be invaded without consent of the owner thereof; and if the company can not agree as to the value of the land, and the owner will not convey it in fee, either party may apply to the Circuit Court of the county where the said land lies by giving five days' notice, if the owner of the land resides in the county, and twenty days' notice if he resides in any other county in this State, and by advertising in some newspaper printed in Knoxville, Athens or Madisonville if he resides out of the State, or be a body corporate, to appoint commissioners to assess the value and condemn 
 
 20 
the land for the use of said road ; and the court shalt appoint five disinterested freeholders of said county, ancL who shall be sworn or affirmed justly and impartially to value the lands, who shall ascertain what damage the owner will sustain, if any, by the location of said road over his land, always taking tnto consideration the benefit the road may be of to the owner, and the tendency said road will have to enhance the value of the land, and said five freeholders, any three of them concurring, shall report to said court as soon as practicable the damages,. if any, and if none are sustained they shall report the fact, which report, if unexcepted to, shall be recorded, and if any damages are assessed, the money shall be patd into the County Court by the company. The fee simple of land so valued as aforesaid, shall vest in said company; and the description of the land and the report of the commissioners shall be made a matter of record, and when registered shall have the effect of a deed of conveyance in fee simple to the company; provided, however, that when infants or persons of non compos are owners of the land, the guardt'an shall be notified of said proceedings in said court, and if there be no regular guardian, said court shall appoint some person well qualified to de-fend and protect the interests of said infant or non-sane person. 
SEc. 16. Be it enacted, That the President and Directors, for the purpose of making said road or repairing the same after it shall have be,en made, shall be at liberty by themselves or agents, to enter upon any adjacent land, and cut, quarry. dig, take and carry away therefrom any timber, stone, grave,l or earth which may be necessary; provided, they shall not. without the consent of the owner, cut down any fruit trees or trees preserved in any e,nclosure for shade or ornament, or take a\vay any materials constituting any part of a fence for building-for all of which materials, under the authority of this Act and for all incidental injuries done to ground, wood, enclosure or crops in carrying them away, the said company shall make the owne,r a reasonable compensation ; and if the parties can not agree upon the price, it shall be ascertained by three impartial freeholders: 
 
 21 
 
to be. appointed by a justice of the peace at the applica- 
 
tion of either party, the opposite party having three days 
 
notice of the application to the justice. The three free- 
 
holders shall be sworn to do impartial justice between 
 
the parties, their award shall be returned to the justice 
 
and shall stand as an award made by order of the court 
 
upon the rights of the parties, upon which the justice 
 
may enter judgment and issue execution if within his 
 
jurisdiction; if over, he shall certify the proceedings as 
 
in any other cases to the next court to be proceeded up 
 
as an award made by order of said court; provided, 
 
either party may have the proceedings corrected by cer- 
 
tiorari and not by appeal; if the proceedings be quashed, 
 
the court may appoint other valuers and cause justice 
 
to be done as contemplated before and by order of the 
 
court quashing said proceedings. 
 
SEc. I 7 Be 1t enacted, That should said railroad pass over vacant or unappropriated lands, said company shall 
 
 
 
have exclusive right of entering the land over which said 
 
road may be laid out, not exceeding two hundred feet in 
 
breadth, until the first clay of January, I839, and the 
 
entry-taker of the district or county through which said 
 
road may be latcl out shall not receive any entry within 
 
that period for the benefit of any other person or persons 
 
than said company under the penalty of five thousand 
 
dollars, to be recovered by action of debt in any court 
 
having cognizance thereof at the suit of said corpora- 
 
tion; provided, said company shall notify the entry- 
 
takers of the different counties through which said road 
 
may pass of the route thereof. 
 
SEc. IS. Be it enacted, That said railroad company 
 
shall have power to acquire and own, as common 9tock 
 
of said company, lands near and connected with said 
 
road, on which to erect warehouses, booths, arbors, 
 
stables, reservoirs, etc., for the purpose of constructing 
 
said road and keepi'ng it in repair, and for the conveni- 
 
ence of transportation and places of deposit, which im- 
 
provements they are hereby authorized to construct. If 
 
the company can not agree with the owners of the land 
 
necessary for the above purposes, they may have it con- 
 
demned in the same manner as the land over which the 
 
 22 
 
road is laid out may be condemned by the 15th section 
 
of this Act; provided, that no more than five acres shall 
 
be taken at any one place, except by agreement wi'th the 
 
owners. 
 
S:ec. I9 Be it enacted, That the whole stock and 
 
property of said company, real, personal and mixed, and 
 
the issues, profits and proceeds thereof, shall be holden 
 
in law, and are hereby declared to be personal property 
 
in all cases, and the said property, and the profit arising 
 
therefrom, shall be vested in the respective shareholders, 
 
their heirs and executors, administrators and assigns, in 
 
the proportion of their respective shares. 
 
S:ec. :40. Be it enacted, That whenever it shall be- 
 
come necessary in the construction of said road to cross 
 
or intersect any public road now or hereafter established 
 
by law, i't shall be the duty of said company so to con- 
 
 
 
struct said road as not to impede the passage or transportation of persons or property along the same. 
 
S:ec. 2 r. Be it enacted, That it shall be necessary to 
 
pass through the improved land of any individual, it shall 
 
be the duty of said company to provide such individual 
 
with a proper and suitable wagonway across said road 
 
from one part of his or her land to the other if the same 
 
shall be required by said owner at the time and route of 
 
said railroad (is) determined on; but the owner of said 
 
road may at any time after said road shall be opened and 
 
completed construct and make such wag-onway across 
 
the same at his or her own expense, under the supervist'on 
 
and direction of said company. 
 
S:ec. 22. Be it enacted, That if said company shall not 
 
begin the railroad contemplated by this Act, or contract 
 
for the construction of some part thereof, on or before 
 
the first of January, r838, and complete the same on or 
 
before the first day of January, r844. the interest of said 
 
company i'n said road shall be forfeited and cease, and 
 
also all rig-ht to take soil. 
 
SEc. 2~. Be it enacted, That as soon as any section 
 
of five miles of said road shall be completed, the Presi- 
 
dent and Directors may transport all persons, produce 
 
and commodities. such person or persons, or owners of 
 
such produce or commodities first paying- the sai'd com- 
 
 23 
 
pany or their agent the toll that may be demanded for 
 
that purpo<>e. The capital stock of said company shaH 
 
be forever exempt from taxation ; and all other pro.perty 
 
of every description situated within this State, including- 
 
the road and the rails, shall be exempt from taxation for 
 
and during the period of twenty years from the com- 
 
pletion of sa.id road and no longer. 
 
SEc. 24. Be it enacted, That when said railroad shall 
 
be completed, or any five miles thereof, the President and 
 
Directors shall on the first Monday in January and July 
 
in each and every year, declare and make such dividends 
 
of net profits, or the tolls herein granted, as may be ad- 
 
visable to be divided among the proprietors. 
 
SEc. 25. Be it enacted, That 1' any person shall will- 
 
fully injure, impair or destroy any part of said road con- 
 
structed under this Act, or any of the necessary work,. 
 
buildings, machines, wagons, cars, booths, reservoirs, 
 
bridges or viaducts, such person shall be subject to in- 
 
di:ctment, and on conviction shall be fined and imprison- 
 
ed at the discretion of the court and jury, and shall 
 
moreover be liable to an action of damages at the suit of 
 
said company in any court having cognizance thereof. 
 
SEc. 26. Be it enacted, That said company shall be 
 
authorized to charge the following tolls, to wit: For 
 
every passenger, not exceeding six cents per mile; for 
 
every one hundred pounds of goods, wares, merchandise, 
 
produce and commodities of every description, not ex- 
 
ceeding one-half cent per mile on heavy articles and ten 
 
cents per cubic foot on articles of measurement. 
 
SEc. 27. Be it ena.cted, That full right and privilege 
 
is hereby reserved to the citizens of the State or any 
 
company hereafter to be incorporated under the authority 
 
of this State to connect with the road hereby provided 
 
for any other railroad or public improvement, provided 
 
no injury is done to the works made, and created by 
 
said company hereby incorporated; and provided, also, 
 
that the same shall not interfere with the privileges here- 
 
inbefore granted. 
 
J 
 
SEc. 28. Be it enacted, That if any amount of stock should not be subscribed sufficient to complete the work 
 
from Knoxville to the south boundary line of the State. 
 
 24. 
as contemplated by this Act, or if a majority of the Board of Directors should deem it advisable or expedient to begin the work on some point on Big Tennessee River, and should complete the work from such point to the south boundary line of the State of Tennessee, the work may be considered as completed, anything in this Act to the contrary notwithstanding. But the Board of Directors may, in their discretion, continue said road to Knoxville should they begin the work at some oth6r point. 
EPHRAIM H. FosTER, Speaker of the House of Representatives. 
JoNATHAN .WEBSTER, Speaker of the Senate. 
AN AcT 
To incorporate the K ashville and Chattanooga Railroad. 
SEcTION r. Be it enacted by the General Assembly of the State of Tennessee, That for the purpose of establishing a communication by railroad between Naslwille and Chattanooga, the formation of a company is hereby authorized which, when formed, shall be a body corporate by the name and style of "Th0 Nashville and Chattanooga Railroad Company," and by said corporate name shall be capable in law to buy, receive by g-ift, hold, sell and convey real and personal estate, as hereinafter provided, make contracts, sue and be stwd. to make by-laws and to do all lawful acts properly incident to a corporation, and necessary and proper to the transaction of the 
business for which it is incorporated, and to have and 
use a common seal, and the same to alter and destroy at its pleasure, and shall have perpetual succ0ssion of members. 
SEc. IJ. After the route of such railroad sha11 have been actua1Iy surveyed and adopted, and a plat thereof deposited in the office of the Secretary of State, it shall not be lawful for any other railroad to be built, cut or constructed in any way or manner, or by any authority 
 
 25 
whatever, running laterally with1n twenty miles of the route so adopted, unless by said company or with the consent of the Board of Directors thereof for the time being. 
SEc. 14. The said company shall have the exclusive right of transportation or conveyance of persons, goods and merchandise and produce over the sa.id railroad by them to be constructed; provided, that the charge of transportation or conveyance shall not exceed thirty-five cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement for every hundred miles, and five cents per mile for every passenger; and provided, also, that the said company may, when they see fit, farm out their rights of transportation on s'aid road, subject to the rates above mentioned. 
SEc. 21. The said company may purchase, have, hold in fee, or for a term of years any lands, tenements or hereditaments, which may be necessary for said road or ap(mrtenaces thereof, or for the erection of depositories, stone houses, houses .or the officers, servants or agents, of the company or for workshops or foundries to be used for the said company, or for procuring timber, stones or other material necessary for the construction of the road or its appurtenances or for affecting transportation thereon. 
SEc. 22. The said company shall have the right when necessary to construct the said road or any branch thereof, across or along any public road or water course; provided, that the said road and navigation of such water courses shall not be thereby obstructed; and, provided further, that such railroad shall not be located so near any turnpike road as to injure or prejudice the interests of the stockholders in such turnpike road, except upon such terms as may be agreed upon by the president and directors of the same on behalf of the stockholders. 
SEc. 23. That said company may purchase, have and hold any bridge or turnpike road over which it may be necessary to carry the said railroad ; and when such purchase is made to hold the said bridge or turnpike road on the same terms and with all the rights which belong to the individual, individuals or corporation from which purchase may be made; provided, that the said company 
 
 26 
shall not obstruct any public. road without constructing another as convenient as may be. 
SEc. 25, In the absence of any contract with the said 
company in relation to the lands through which the said road may pass, signed by the owner thereof or bv hisagent or any claimant or pe>rson in possession thereof, which may be confirmed by the owner, it shall be presumed that the land upon which the said road may be constructed, together wtth a space of one hundred feet on either side of the center of said road, has been granted to the com.pany by the owner thereof, and the said company shall have good right and title thereto, and shall have>, hold and enjoy the same as long as the same be used only for the purposes of the road and no longer, unless the person or persons owning the land at the time that part of the road which may be on said land was finished, or those claiming under him, her or them shall apply for an assessment for the value of said lands, as hereinbefore directed, within five ye>ars next after that part of said road was finishe>d, and in case . the said owner or owners, or those claiming under him. her or them shall not apply for such assessment within five years next afte>r said part was finished, he, she, or they shall be forever barred from recovering the said land, or having any assessment or compe>nsation therefor; provided, nothing herein contained shall affect the right of feme coverts or infants until two years after the removal of their respectivt~ disabilities. 
SEc. 26. If any person shall intrude upon the said railroad or any part thereof, or of the rights and privileges connected therewith without the pe>rmission or contrary to the will of the company, he, she, or they shall forthwith forfeit to the said company all the vehicles that may be so intruded on said road, and the same may be recovered by suit at law, and the pe>rson or persons so intruding may also be indt.cted bv misdemeanor, and upon conviction fined and imprisoned by the court of competent jurisdiction. 
S:ec. 27. If any person shall wilfully and maliciously destroy or in any manner hurt, damage or obstruct the said rai'lroad, or any bridge or any vehicle used for o.r 
 
 27 
in the transportation thereon, such person or persons so offending shall be liable to be indicted therefor, and on conviction shall be impnsoned not more than than six nor less than one month, and pay a fine not less than twenty dollars, and shall be further liable to pay all the expenses of repairing the same; and it shall not be competent for any person so offending against the provisions of this clause to defend himself by pleading or giving in evidence that he was the owner, or agent or servant of the owner of the land where such destruction, hurt, damage, injury or obstruction was done or caused at the time the same was caused or done. 
SEc. 28. Every obstruction to the safe and free passage to vehicles on said road shall be deemed a public nuisance, and may be abated by such as an officer, agent or servant of the company, and the person causing such obstruction may be indicted and punished for erecting a public nuisance. 
SEc. 29. The said company shall have the right to taek at the storehouses they may establish or erect to their railroad, all goods, wares, merchandise and produce intended for transportation prescribed by the rules of priority, and charge and receive such just and reasonable compensation for storage as they by rules, may establish, or as may be fixed by agreement with the owner, which may he distinct from the rates of transportation; provided, the said company shall not charge or receive storage on goods, wares, merchandise or produce which may be delivered to them at their regular depositories for immediate transportation, and which the company may have the power of transporting immediately. 
SEc. j2. Whenever in the construction of said road it may be necessary to cross or intersect any established road or way, it shall be the duty of the company to construct said road across such established road or way so as not to impede the passage or transportation of persons or property along the same: or where it shall be necessary to pass through the land of any individual, it shaii be their duty to provide for such individual a proper wagon way or ways across said road from one part of his land to the other. 
 
 28 
SEc. 33 The said company shall possess such additional powers as may be convenient for the due and successful execution of the powers granted in this charter and for the successful construction and management of the work. 
SEc. 34 This charter shall be amended from time to time by the Legislature whenever the President and Directors shaii unanimously petition for the amendments; and when such amendments shaii be adopted by the Legislature and submitted to the directory and be accepted unanimously by the President and Directors, they shall be obligatory on the stockholders, and not otherwise. 
SEc. 38. The capital stock of said company shall be forever exempt from taxation, and the road with all its fixtures and appurtenances, including workshops, warehouses and vehicles of transportation, shall be exempt from taxation for the period of twenty years from the completion of the road and no longer. 
SEc. 39 The railroad authorized by this Act shall be commenced within three years after the passage of this Act and shall be finished within six years thereafter; otherwise the charter granted shall be void. 
In virtue of these grants of power the State of Georgia, prior to 1855, has acqUJ'red a tract of land within the present limits of Chattanooga, embracing the present passenger depot and the present central yards used by the lessee company, as well as a considerable amount of land now covered by business houses. For the present purpose of inquiring into the rights of the Southern Railway in the depot, it is not material to go any further into detail as to the limits of these purchases. 
In addition to the copy set out in Mr. Henderson's letter, of a deed alleged to have been made by the Governor of Georgia in 186o and already incorporated herein, the following documents have at various times in the past been set up and alleged to exist or to have existed. 'They are here set forth for purposes of reference and 
 
 29 
will be treated herein as genuine, though I deem it proper to say that I have no evidence of their authenticity ex- 
cept the claims of the various railroad companies con- 
cerned. 
I. 
STATE OF TENNESSEE, Hamilton County. 
Memorandum of an agreement entered into this, the 13th day of November, 1855, by and between Vernon K. Stevenson, president of the Nashville & Chattanooga Railroad Company, and James F. Cooper, superintendent of the \Vestern & Atlantic Railroad. Subj oct to the ratification of their respective principals, to wit: The Board of Directors of the Nashville & Chattanooga Railroad Company, and his excellency, Herschel V. Johnson, Governor of Georgia, the; Western & Atlantic Railroad is to convey to the N'ashville & Chattanooga Railroad Company that portion of their ground lying west of the line through the center of the joint passenger house, said line being straight for three hundred feet south of said passenger house, thence curving regularly until it intersects the southeast corner of said purchase. 
And the Nashville & Chattanooga Railroad Company is to convey to ,the said vVestern & Atlantic Railroad a strip of ground lying east of a line commencing at said southeastern corner, then curving regularly parallel to the track of the Vvestern & Atlantic Railroad until it intersects the original tract of said road, t:1ence along said tract to the eastern line of the tract purchased by the Atlantic & \Vestern Raih:oad, thence along said line to the corner aforesaid. 
It is agreed that the lands thus exchanged shall be valued at cost and interest, and the difference w:1en thus valued is to be paid to the party which conveys the lc.rger portion of land. 
All the above lands lying and being within the corporate limits of the city of Chattanooga, in said State and county, and being the depot grounds of the said railroads. 
 
 30 
 
In witness of this agreement tile parties thereto have :set their hands and seals the day and year above, written. 
 
(Seal) 
 
V. K. STEVENSON, President. 
J. F. CooPER, 
Supt. W. & A. R. R. 
 
E2:ECUTIVE DEPARTMENT, MILLEDGEVILLE, GA. 
December I3th, I855 I hereby ratify the foregoing contract under my hand and seal of the Executive Department at the capitol in Milledgeville on the day and year above \vritte,n. 
HERSCHEL V. JoHNSON, Governor of Georgia. 
 
II. 
CHATTANOOGA, Sept. I2th, I857 
\Ve, the undersigned, on the part of the roads we respectively represent, do hereby agree as follows: That the Western & Atlantic Railroad authonties shall, as soon as the, same can be reasonably accomplished, have erected a passenger house in Chattanooga for the accommodation of the different railroads meeting at that point. 
The house to be in plan, size. and finish in all respects the same as the passenger house at Atlanta, with the privilege, however, of making the. walls of stone in whole or in part at the option of the Superintendent of the Western & Atlantic Railroad. The Nashville & Chattanooga Railroad Company agrees to pay ten thousand dollars towards the cost of said house, to be advanced from time to time. as the work progresses, in such sums as the engineer of the Nashville & Chattanooga Railroad Company may consider properly due, and for which the said Nashville & Chattanooga Railroad shall be entitled to one-thi'rd of. the building when completed. The house to cover the site heretofore designated for a joint pas- 
 
 31 
 
senger house. The \Vestern & Atlantic Railroad shall have control of t\vo-thirds of the said house, and the right to sell and reserve the proceeds for one-third. 
 
(Signed) 
 
J. M. SPURLOCK1 
Supt. W. & A. R. R. 
 
Signed in duplicate, 
 
JoHN D. LuMPKINS. 
 
V. K. STEVENSON. 
 
Probated by J. A. \Vhitesicle, director for the Nashville- 
 
& Chattanooga Railroad Co. 
 
III. 
ExHIBIT B To ANSWER oF NASHVILLE & CHATTANOO- 
GA RAILROAD To BILL No. 1367. 
CHAT'fANOOGA1 March 24th, r8s8. 
The Nashville & Chattanooga Railway Company consents to a modification of the contract of 12th September, 
;K57. between J. M. Spurlock, Superintendent Western 
& Atlantic Railroad and the said Nashville & Chattanooga Railroad Company for building a joint passenger house at Chattanooga, as follows: 
r st. The Western & Atlantic Railroad shall build the house, all clue ecomomy. 
2cl. The Nashville & Chattanooga Railroad Company shall own one-fourth, embracing the western track, and pay ten thousand dollars. 
3d. The East Tennessee, Virginia & Georgia Railroad to take one-fourth at ten thousand dollars. 
4th. The Western & Atlantic to take one-fourth at ten thousand dollars. 
5th. The remaining fourth to belong equally to the three; but if the cost of the house exceeds thirty thousand ($3o,ooo.oo) dollars, the Western & Atlantic Rar1roacl shall, out of the proceeds of the sale of the remainig- fourth, be reimbursed the amount of the excess; but this excess or reimbursement shall in no event exceed five thousand dollars, and the balance of the proceeds of 
 
 32 
 
sale of the one-fourth shall belong equally, and be so divided, between the three parties named. 
6th. Roof may not be covered with tin, but with other good substantial durable material suitable to its slope. 
 
(Signed) 
 
JAMES A. WHITESIDE, 
 
Diretor and Member of the Executive Committee Nash- 
 
ville & Chattanooga .Railroad Company. 
 
I agree on the part of the Western & Atlantic Railroad 
 
to the above modification if approved by the Executive of 
 
Georgia and concurred in by the East Tennessee & Geor- 
 
gia Railroad. 
 
Signed) 
 
JOHN w. LEWIS, 
 
Supt. \V. & A. R. R. 
 
IV. 
 
OFFICE \VESTERN & ATLANTIC RAILROAD, 
ATLANTA, GA., F~b. 2, I859 
This agreement made this clay betwe,en the State of Georgia acting through their agent, John \V. Le,wrs, Superintendent of the Western & Atlantic Railroad, subject to the approval of the Governor of the State, of the first parr, and the Memphis & Charleston Railroad Comp.any. acting through their president, Samuel Tate, of the second part. 
Witnesseth, that the party of the first part has this clay 1eased to the party of the second part, one undivided fnnrt interest in the new passenger house now under con~tnJction at Chattanooga, Tenn., for the term of one year from the first day of March next with the privilege of renewing the same lease from year to year for thirty ye,ars, upon the terms and conditions herein specified, to \vit, the party of the first part are to complete sarcl house in all respects in accordance with the contract heretofore entered into with the Nashville, & Chattanooga Railroad Company, and the party of the second part is to have the exclusive privilege of one of the tracks on the we,st side of the house, together with an equal and joint 
 
 33 
privilege with the three other roads occupying the said house, to all the general privileges and profits, if any, arising from the whole house. The party of the second part agree to pay for said lease the sum of seven hundred dollars per anum, payable semi-annually, and also to pay one-fourth of the necessary expenses to said house the time they occupy the same. 
It is further agreed by the party of the first part, that should the party of the second part desire to terminate said lease by an actual purchase of said one-fourth interest in said house, they shall have the right to do so by the payment of ten thousand dollars at any time they may see proper to do so. 
Signed in duplicate, the 2d day of February, I859 
JOHN w. LEWIS, 
Supt. W. & A. R. R. SAM TATE, 
'Pres. M. & C,. R. R. 
ExEcUTIVE DEPARTMENT, 
MILLEDGEVILLE, GAJ' February 4, I859. 
I ratify and approve the foregoing contract. 
JosEPH E. BRowN, Governor of Georgia. By the Governor. M. D. McCOMB, Secn:;tary Executive Department. 
 
In the year I89I the East Tennessee Virginia & Geor- 
 
gia Railway Company brought its bill in equity before the 
 
chancery court of Hamilton county, Tennessee, against 
 
tnhye, 
 
Nashville, Chattanooga & St. Louis Railway Compathe Memphis & Charleston Railway Company. and 
 
the State of Georgia. The original bill set up that com- 
 
plainant was the owner of one-fourth undivided interest 
 
m the Western & Atlantic passenger depot in Chatta- 
 
sr 
 
 nooga "including one of the tracks running into and within said union depot and the privileges appertatning thereto," that the State of Georgia and the 11\'ashville, Chattanooga & St. Louis were each the owners of a fourth and that the Memphis & Charleston claimed a fourth, and that the property was not susceptible of diviston. The bill thereupon prayed for a sale for partition and for a decre0 as to the rights of the parties. This bill was filed July 30th. 
On August r8th the Momphis & Charleston filed its :answer and cross bill, admitting that complainant and its co-respondents owned between them three-fourths of the .depot property but disclaiming any knowl~clge as to the proportions, and averring that it owne-cl one-fourth, and joinmg in the prayer for partition. 
The cro~s hill further set up that in r88r it, together with the N., C. & St. L., the E. T., V. & G. R. R. Co., and the \V. & A. R. R. Co., were in possession of the depot ""under a leas0 or agreement,'' etc., and exhibited said alleged writing-the exhibit being substantially identical in terms with the alleged deed of August 17, r86o, accompanying Mr. Henderson's present demand on Governor Smith. 
It alleges that in r88r it made a contract with one or all of its co-tenants for a purchase of an undivided fourth for $ro,ooo and agreed to pay one-fourth the expense of erecting additional improvements thereon. The evidence of this contract was lost, but in any event it had always been recognized and acted on, and r6spondent has not paid any rent since. On the contrary, it dtd pay half the purchase price ($s.ooo) and its fourth of the  improvements ($14,254) and would have paid the other $s,ooo if the other parties had been able to make g-ood titles. 
Recognizing some informality in its tt'tle, respondent 
 
 35 
.claimed that some of the. parties should pay back the $r9,ooo if it could not share as a joint owner. 
In September the Statt> of Georgia filed a demutrer to the original bill, and the Nashville, Chattanoog-a and St. Louis Railway Company filed a. demurrer and answer to the original bill and a demurrer and answer to the cross bill. 
In the formt>r the N., C. & St. L., denied that .complainant owned any interest, and averred that it and the State of Georgia alone were owners of divided interests as shown in the dt>ed of r86o. It also declared that plaintiff had never, before the present action, claimed any right except to pay one-third the expenst>s of maintenance and receive one-fourth the rentals paid by the M. & C..R. R. Co. This arrangement, it declared, was merely a matter of convenience in providing joint terminals for public use, and would be defeated by the partition prayed. Complainant had at most a mere caattel interest and had recently voluntarily abandoned that. The title of the property was originally in the State of Georgia, which had never partt>d with any title therein except as shown in the deed of r86o exhibited with the cross bill. 
In its answer to the cross blll substantially the same issues were made by the N. C. & St. L. Ry. Co., but 'it was admitted that the Memphis and Charleston did, about r858, acquire some sort of leasehold rights for thirty years in the depot. 
In October the State of Georgia file.d a demurrer to the cross bill. 
April 22, 1892, complainant fiied an amended bill against the same respondents and the present lesse0, the Western & Atlantic Railroad Company. This was a very long document and need not all be synopsizecl hme. Among othfr things, it alleged 'its own identity with 
 
 36 
certain former companies known as the East Tennesseeand Georgia, the East Tennessee and Virginia, and the E. 
T., v. & G. R. R. Co., and, renewing its claim of title, 
set forth and exhibited the contracts of 1857 and 1858, already herein set out, as part of its evidence of title, averring that the modified contract of 1858 was in fact 
"approved by the Governor of Georgia, Hon. Joseph R 
Brown, and was concurred in by the East Tennessee and Georgia Company, which concurrence was evidenced by a writing endorsed on the back of said contrace' The amendment further purports to exhibit an additional contract made, as alleged, at some time prior to March 24,' 1858, between the Nashville and Chattanooga R. R, Co., and the \Vestern & Atlantic" on the one hand and complainant's predecessor, the E. T., V. & G.. R. R. I have not been able to find any copy of this contract, but the amended bill states as follows in regard to it: 
It agrees that a passenger house shall be erected by all three of the companies at Chattanooga., for their joint use, to be paid for and owned equally by each; theEast Tennessee & Georgia Company for occupation of and access to said depot, was to have sufficient and 3uit-. able grounds for its tracks, and was also to have sufficient ground for its railroad tracks and for conducting its. freight business, on paying to the superintendent of the Western & Atlantic Railroad the original cost of the land. 
The amended bill adds that the three railroads and also the M. & C. have jointly and continuously used the depot ever since; until recently the exigencies of its business had compelled it to seek other quarters, that it paid jts share of the cost of the house, and of the land, and has always paid its share of the taxes, and that until now, it has always been admitted to be the owner of a fourth both of the house and the land. It sets out elab- 
 
 37 
rorately the deed of 186o and pleads its recitals as an <estoppel in complainant's favor. The amended bill fur:ther sets up that prior to 1873, considerable repairs and improvements were put on the property by Foster Blod'gett, superintendent of the W. & A. R. R., and that in 'the latter year, the Governor and Comptroller-General (}f Georgia brought a bill in equity against the three rail'toad companies enjoying the use of the .depot to compel 'Contribution, and subsequently by amendment or supplehlental bill alleged joint ownership in the N. & C. R. R. 
'Co. and the E. T., V. & G. R. R. Co., and tenancy in 
theM. & C. At a later stage of the cause now under discussion, the 
'&ecree that was rendered in this bill of Smith, Governor, ~taL, in 1875, was exhibited and relied on as an estoppel. The decree was as follows : 
At a Chancery Court begun and .held at the court house in the city of Chattanooga, Hamilton county Tennessee, being the regular term of the Chancery Court of Hamilton county, on the second Monday in October, 1875, present and presiding the Hon. Wm. M. Brad:fford, Chancellor of the Third Chancery Division of Ten:rrtssee, the following proceedings were had, to wit: 
'The Western & Atlantic Railroad, of the State of Georgia, for the use of the State of Georgia, vs. 
'The Nashville & Chattanooga Railroad Co., The E. T., 
V. & Ga. R. R. Co. et al. 
This cause came on to be finally heard and determined before Chancellor Bradford on this 3rd day of November, 1875, upon the pleadings, proofs and exhibits in the cause, from all which it appears that the respondents, the East Tenn., Va. & Ga. Railroad Co., and the N., C. & 
St. L. Railroad Co., all each joint owners with the State 
Qf Georgia in the depot in Chattanooga known as the  
 
 38 
Union Passenger Depot, fronting on Ninth Stre~ in saicf. city and running back a southerly direction; and that each of said respondents own one-fourth interest in the same and complainant one-half, as is shown by the written contract of the, parties. And because it further appears to the Chancellor that since the respondents have been such joint owners of that depot and premises used and known as such Union Passenger Depot as aforesaid the complainant has made large expenditures of money in the necessary and proper repairing said depot and premises, for which each of the aforesaid respondents are justly and equitably liable and bound to contribute each one-fourth of the same. And because it is admitted in open court before the Chancellor that the proper and just amount which each of the aforesaid respondents is liable to contribute and pay on account of said repairs and improvements is the sum of $1,250, each to be paid in three months from the elate of this decree without interest. And that each of said respondents ought to pay one-fourth of the costs of this cause and the complainant the other half of the same; it is, therefore, upon such admissions as well as upon the whole case, orclerecl, adjudged and decreed by the Chancellor that the complainant recover of each of the afor~saicl respondents the sum of $1,250, but that no interest shall accrue U!;!On the same until the expiration of three months from the elate of this decree and that execution be stayed for threemonths from the elate of this decree, after the expiration of which time, in default of payment, execution may issue against said respondents respectt'vely for the same. 
It is further decreed that the complainant and E. M. 
Dodson and J. L. Smith, its surety for the prosecution 
of this suit, pay one-half of the costs of this cause; and that said respondents, the N., C. & St. L. Railroad Co., and the E. T., V. & Ga. R. R. Co., each pay one-fourth of the costs of this cause, for which execution may issue. 
It is further ag-reed by the parties that this decree is in no manner to interfere with or operate as an adjudication or settlement of any claims or demand which each ,or either of said respondents may have ag-ainst the complainant or any other party or person for rents whiclt 
 
 39 
the complainant or its agents, etc., has or should have collected of the Memphis and Charleston R. R. Co., or othe-r party for the use of said depot or for any portion of which said complainant may be liable to account to said respondent or either of them by any agreement sub~ sisting between said W. & A. R R., or the State of Georgia and said respondents, but this agreement is not to be- construed as any admission by complainant of any such agreement or liability. And by consent the decree heretofore rendered in this cause at the present term is vacated and for nothing held. 
Anothe-r matter set up at length in the supplemental bill was the alleged fact that about r882 extensive additions and improvements were made to the depot property by the four lines using it and with mutual recognition of each other's ownership. The cost was alle-ged to be $8o,ooo, whereof one-fourth each was pa.id by the 
M. & C., the IN'., C. & St. L- and the E. T., V. & G., and 
the W. & A., the latter b~ing a tenant of the State of Georgia and the said State accounting to it therefor a:s betterments at the end of the lease. These matters were pleaded as estoppel and in this connecti.on refe-rence is made in the pleadings to the letter of March I I, r8gr, 
from J. W. Thomas to C. H. Hudson, the same letter 
now exhibited by Mr. Henderson to Governor Smith,. and he-reinbefore copied. 
The 'amended bill distinctly averred title both to the  ground and house, and prayed for a safe for division or some equitable reimbursement for the complaina'nt's outlay. On May 17, r8g2, the State of Georgia demurred to the amended bill. 
There were a great many more pleadings filed and the record in Chattanooga is very extensive. It is unnocessary to set out the pleadings any further, as the issues are indicated with reasonable clearness by what has already been set out. In its answe-r tcr the: amended. hilt 
 
 40 
 
:filed August 5, I892, the N., C. & St. L. denied any knowledge as to any of the exhibits except the deed of I86o. June I2, I894, Georgia filed an answer to th6 <:ross bill and on July I I, I894, to the amended bill. In these pleadings the State alleged .inter alia, that the deed of I86o was conditional and that the conditions have :never been complied with. It also denied any authority :in the lessee company or the Governor to convey prop~erty without the consent of the Legislature. 
In May, I895, the bill was revived at the instance of the Southern Railway Company and that company was made party complainant as successor to the rights of the E. T., V. & G. Ry. Co. 
June 2, I897, the Chancery Court of Hamilton county pronounced the following decree in the cause: 
 
, At a regular term of the Chancery Court of Hamilton 'COunty, Tennessee, begun and held at the court house 1n the city of Chattanooga, said county and State, on the first Monday, it being the 5th day of Aoril, I897, present and presiding the Hon. T. M. McConnell, Chancellor in and for the Third Chancery Division of said 'State; wh6reupon, the court, on the request of the members of the bar, adjourned until Monday morning, April 
19, I897, at 9 o'clock. 
 
Monday Morning, April I9, I897 
Court met pursuant to adjournment, present and presiding the Hon. T. M. McConnell, Chancellor, when the following proceedings were had, viz: 
 
E. T., V. & Ga. Ry. Co. l 
 
vs. 
 
~ No. 5719. 
 
N., C. & St. L. Ry. Co. et als.J 
 
In this cause it appearing to the court that respondent Western & Atlantic Railroad of Georgia is regularly in Court by publication and by the entrance of appearance 
 
 41 
by counsel, and that said Western & Atlantic Railroad has not filed any aswer in this cause, it is therefore decreed by the court that judgment pro confesso be taken and had against said Western & Atlantic Railroad and that this cause be set for hearing ex parte as to said Western & Atlantic Ratlroad. 
And thereupon this cause came on to be heard before the Hon. H. A. Chambers, Spocial Chancellor, on the pleadings, proof and argument of counsel, and after mature deliberation the Court doth order and decree as follows: 
I. 
All demurrer:o filed by defendants are overruled. The State of Georgia is in court and subject to its jurisdiction in this cause. 
J[, 
The title to the sotl or ground of the lot in controversy is in the State of Georgia. Complainant, the East Tennessee, Virginia and Georgia Railroad Company and its assignees, or successors in interest, the Southern Railway Company, have acquired no title to said lot by estoppel or otherwise. 
III. 
The buildings and improvements now on the lot, including floors, tracks and foundation, parts of walls and pillars, everything except the soil itself, belong to the four parties to this case, to wit: 
1. The State of Georgia. 2. Nashville, Chattanooga & St. Louis Railway Co. 3 Southern Railway Company. 4. The Memphis & Charleston Railway Co. - in the proportion that the money furnished by each and , -used in making and maintaining the buildings and im-provements now on the lot, including taxes and operat:ing expenses, bears to the present value of said buildings 
 
 and improvements, less any profits or mcome therefrom. 
But in fixing the proportion, the rents paid by the Memphis & Chattanooga Railroad Company are not to be considered or credited to it. No credit will be allowed to it or to complainant for rents for their Interests m said property since they withdrew from and ceased to use it. They will not be charged or the other parties credited with any extraordinary improvements on the property since their withdrawal, but with only ordinary repairs to keep the property in good condition. 
The State of Georgia is to be treated as representing and owning the interests of the Western & Atlantic Railroad, and the Western & Atlantic Railroad Company. 
IV. 
A reference will be had to the Master to ascertain from. the proof on file, and any other hereafter produced by the parties, and report. 
First-The amount furnished by each party and used  in the making- and maintaining the buildings and Improvements now on said lot. 
Second-The present value of said buildings and Improvements. 
Third-The present value of the interest of each party in said buildings and improvements according to the proportion hereinbefore declared. 
Fourth-When these amounts and values are fixed by the Court on said report, or otherwise, the State of Georgia and the Nashville, Chattanooga & St. Louis Railway Company shall have the option. for such time as the court may then determine, to buy the interests of the complainant and the Memphis and Charleston Railroad Company, at the fixed present value or any amount on which they may agree, and if they fail to buy under this option, then a public sale of the buildings and improvements, with right of removal, will be made on , such terms as the court may fix in making the order for s~l~1 
 
 and the proceeds divided pro rata 6if the fespecti"ve i"n~ terests of the several parties; and costs to be equally divided between the four parties, 
Sixth-Appeal may be had now if desired. 
And the Nashville, Chattanooga & SL Louis Railway and the Western & Atlantic Railroad Comoany pray an: appeal from said decree to the next term of the Supreme Court of Tennessee, to be held at Knoxville, which appeal is granted upon said appellant entering into appear: bond in the sum of two hundred ,and fifty ($2so) dol- 
lars, conditioned as required by law, 
In making out the transcript for the Supreme Court by agreement of all the parties, the Clerk and Master will not copy into the transcript any of the vouchers or other exhibits to the depositions except the, exhibits to the statement or deposition of Stacey Lord, nor any of the other documentary evidence used on the trial except the, transcript in cause 1367, and it is agreed that any party to the suit may use on the trial in the Supreme' Court any part of the original record that was filed in the Chancery Court, the same as though copied into and made part of the transcript. 
But the Clerk and Master will copy into the transcript any part of the re,cord that he may be directed so to do in writing by any of the attorneys for arty part of the suit. 
And thereupon Brown and Spurlock appeared in open court and acknowledged themselves as sureties of said 
N., C. & St. L. Ry. and the W. & A. R. R. Co., for the 
costs of said appeal and thereupon appeared in open court, Garnett Andrews and W. P. McClatchey and acknowledged themselves as sureties of the State of Georgia for the cost of said appeal, which may be adjudged against said State of Ge,orgia. 
And thereupon appeared in open court Cooke, Swaney & Cooke and acknowledged themselves as sureties of East Tennessee, Virginia & Goorgia Railway Company, the Sout11ern Railway Company, and the Memphis and ,Charleston R. R. Company for the costs of said appeal ~h~c4 may ~_adjudged against them or either of them. 
 
 44 
The case was then taken on appeal to the Chancery Court of Appeals at Knoxville, where it was decided in October, 1897, and afterwards to the Supreme Court. The opinions were not printed in either court, but I have recently procured certified copies and hand them to you herewith. That of the Chancery Court of Appeals is too long to embody herein and for that reason I only undertake to state the important points adjudged and decreed and my understanding of their legal consequences and to embody such extracts as may be important. The judgment of the Supreme Court I include in full. 
I. 
It was held by the Chancery Court of Hamilton county that the State of Georgia was in that particular matter subject to the jurisdiction. 
The Chancery Court of Appeals affirmed this finding and based its opinion on the Act of 1847-8, already herein copied, and the charter of the Nashville and Chattanooga Railroad, also herein set out. That portion of the opinion reads as follows : 
Only one other question remains, and that is, whether the State of Georgia is properly before the court; that is, should 1'ts demurrer for want of jurisdiction be sustained? We are of the opinion that the demurrer is not well taken. This is a suit concerning the administration of property of that State in Tennessee, for the purposes for which the right to enter the State of Tennessee was given. The Tennessee Statute which extended rights to Georgia with regard to constructing the road in Hamilton county, this State, is found in ch. 195, Acts of 1847-8. That Statute gives to the State of Georgia all the 'rights,' privileges and immunities, with the same testrictions; which were previously granted to the Nash- 
 
 4& 
ville & Chattanooga Railroad Company 'by the Act of December I I, I845.' That Act is Ch. I, Acts I845-6. 
That Act includes among the rights and restrictions, the right to sue and be sued. This includes the courts of Tennessee along with other courts. 
The judgment of the Supreme Court is hereinafter set out in full and it will be seen that it in substance sustains the lower courts on this point. 
2. 
The trial court found that the title to the g-round is in the State of Georgia and particularly that the Southern Railway has acquired no title therein by estoppel or otherwise. This necessarily disposed of the claim based on the bill of I873. 
The Chancery Court of Appeals sustained this finding. As to the claim of title based on the decree of I875, it ruled in substance that that decree adjudicated nothing but the right of the State of Georgia to have the joint occupants contribute to the maintenance of the property, and that the decree must be read in the light of the issues actualiy involved. Upon this branch of the case the court said as follows : 
Taking ali these points together, we are of the opinion that the extent of the decree was simply to declare the joint ownership of the three interests, in the house itself, as foiiows: W. & A. R. R. (State of Georgia) one-half, East Tenn., Va. & Ga. R. R. Co., one-fourth, and N. & C. R. R. Co., one-fourth, with a joint oblig-ation for repairs and improvements. We concede the proposition that usually a ~onveyance of a house, describing it, without more, will carry the land on which the house stands, but this rule does not hold good as to trade fixtures, and does not appJy where t!le court is enforcing the estoppel of a decree. In the latter case, tho court will construe the decree and find out its true 
 
 meaning without regard to the technical rules that obtain in the law of conveyancing. 
 
As to th~ alleged rights growing out of the transactions of r88r-2 it held that, whatever may have happened at that time, the State of Georgia had nothing to do with it and was in no w1se affected by it. Upon this subject the court said as follows ; 
 
It must first be stated that the Western & Atlantic R. R. Compa.ny; which was operating the road at this time under the.lea.se of r87o-r89o, had no authority to act for the State of Georgia in the matter of the repairs and improvements,. and had no title to the property, other than the lease title. It had no right or power to sell the Union Passenger Depot, or any interest therein, other than to permit a joint use, as had previously been permitted. The title to the property on which the depot stood was in the State of Georgia. That State had nothing to do with the negotiations concerning the repairs and new improvements of 188r-1882. Under the terms of the lease to the vVestern & Atlantic Railroad Company, that company was to return the property to the State in  as good condition as at the beginning of the lease. That State had nothing to do with the terms of joint occupation during the years r87o-189o. being then out of the control of the property, its lessees having control. So. during only a short space of the time after the expiration of that lease has it had control, inasmuch as it ap~ p~rs in the proof that du-ring the year 1890, after the expiration of that lease, it again leased the property, this time to the Nashville, Chattanooga & St. Louis Railroad Company; for the period of twenty nine years, and that company has since been operating it under the designation of the Western & Atlantic Railroad Company. 
 
So, it is apparent that no rights whatever, as ag-ainst the State of Georgia can be based upon the repairs and costly improvements of r88r-r882. 
 
* The 
 
* 
statute 
 
of 
 
* 
frauds 
 
is 
 
* 
pleaded 
 
* 
by 
 
the 
 
* 
State 
 
of 
 
* 
Geor- 
 
 47 
St. :gia and the Nashville, Chattanooga & Louis Raiiwajr' 
Company and besides, the State of Georgia, even under the foregoing testimony, was no party to the agn~'eq,~, and in addition to this, the burden of proof w'ould be upon the Memphis & Charleston Railroad Company to establish the proposition, and this testimony is denied by Major Thomas, and besides all this, the proof in this record fails to show that Nashville & Chattanooga Railroad Company (or its successor, Nashville, Chattanooga .& St. Louis) had any title to the ground on which the depot stood, unless such title arose from the documents which we shall presently consider. So we must conclude that this testimony fails to establish that there was any purchase by the Memphis & Charleston Railroad Company. So it follows, there is no proof to sustain "the claims of the Memphis & Charleston Railroad Company to purchase any interest in the depot and depot grounds. Its claim to such purpose is rested upon the transaction of r88r-z, and having failed to establish the claim, we must find that It made no purchase of the depot or depot grounds. It does not claim any part in the prior transactions arising under the document referred to. 
As to the claim of title under the deed of r86o, the court said as follows; 
We may, however, in passing, say with regard to the deed of Governor Joseph E. Brown of elate I 86o, that on a cursory examination I.t would-treating it as valid-seem to vest a half interest in the Nashville & Chattanooga Railroad Company, but it will be observe,d that by the terms of that deed certain things were to be done before the title vested, and it does not appear from this record that these things-the paying of $8,ooo.oo and the conveying of the 96/roo acres of land-were done. 
* * * * * * We now proceed to consider the rights, if any, were acquired by the E;;(st Tenl'!~ssee, Virginia & Georgia Ra1l- 
 
 48 
way Company and the Nashville & Chattanooga Railw~y.Company by virtue of the docurnents copied into the opmwn. 
"First, as to the recitals in Governor Brown's deed. This deed was not excepted to, and it must be taken for what it is worth. As already stated, the proof shows that the property known as the "Western & Atlantic Railroad" (not company) is merely a piece of property, or an investment owned by the State of Georgia. The Governor had no authority under the Georgia law to sell any land pertaining to that property except such as was given him by section 1008 of the Code of that State. This section reads as follows : "The Governor or Superintendent shall not sell any part of the rig-ht of way, nor any property or land of the road, that may be necessary for the erection of depots, wood yards, water stations, or for any other improvement, to the convenience or interest of said road; but they may sell any land of the road, if of no use to 1t, in the manner iron is sold, advertising it in the public gazette in Atlanta, and in the county where it lies, and in a public gazette thereof, if one, and the Superintendent shall execute deeds thereto in his official capacity." It does not seem from this section that the Governor had any authority to make the deed, although he recited therein, "which" (the property which he is attempting to convey) "I do not consider necessary to the \Vestern & Atlantic Railroad for depots, wood yards, nor water stations, nor do I consider it will be' now or at any other time necessary or convenient to said road." The recitals then, even though unobjected to, would amount to no more than a private letter from Governor Brown to a third party, that is, not binding upon any party by way of estoppel, but only as testimony. And in considering this testimony, we must carefully distinguish between the statement of fact, therein contained and the conclusion of law introduced with the facts." 
By reference to the decree of the Supreme Court here- 
inafter set out, it will be perceived that this finding was 
fully sustained in every particular except that there was 
 
 49 
 
a saving to the effect that the question of title as be- 
 
tween Georgia and the Nashville, Chattanooga & St. 
 
Louis was not involved and therefore not adjudicated. 
 
I suggest that while this was a saving as to any ad- 
 
judication of title, it does not and can not affect the dis- 
 
tmct holding upon a material issue of law that the deed 
 
of 186o was unauthorized and void. 
 
 
 
3 
The trial court ruled that the building and tracks were the property of the State of Georgia and the three railroad companies in certain undefined proportions to be ascertained by a reference according to a rule of calcu-. lation laid down in the decree. That when this was as. certained the State of Georgia and the N. C. & St. L. should have the option to buy out the other two roads, in default whereof the buildingi should be sold for divtston. 
The Chancery Court of Appeals ruled that the whole arrangement was a mere agreement for the joint use of the property as a common terminal, and' that technically there was no joint ownership; that Georgia was originally the owner of the property and built the depot; that the effect of the contracts in 1858 was to create a joint right of use in the N. C. & St. L. to one-fourt11 and in the predecessor of the Southern to one-fourth, with proportionate duties of maintenance and rights of egress and ingress; that in 1881 the M. & C. was admitted to a share in these rights by parties who had no right to bind the State of Georgia; that in 1891 theM. & C. and 
the E. T. V. & G. abandoned the joint use; that no 
right resulted thereby to them to have the property divided; that all the parties have a continued right now to tise the property; that no question is before the court as 
4r 
 
 50 
 
to the rights of the M. & C. as against Georgia after 1919, but.as against theN. C. & St. L. theM. & C. still has a right of user. 
The Supreme Court affirmed the judgment of the Chancery Court of Appeals in every particular except as to any present continuance of a right of user in the Soutilern and the M. & C. That question it held was not before the Court. 
The following is a full text of the decree of the Supre~ne Court : 
 
East Tennessee, Virginia & } 
 
Georgia Ry. Company 
 
Appeal from Chancery 
 
vs. 
 
Court of Hamilton 
 
Nashville, Chattanooga & 
 
County. 
 
St. Louis Ry. Company et als. 
 
This cause came on to be heard this-- day of October, before the honorable Supreme Court of Tennessee, on the appeal of all the parties from the decree of the honorable Court of Chancery Appeals, and the same having been fully heard and argued, the court is pleased to order, adjudge and decree, that there is no error in the decree of the Court of Chancery Appeals, except so much thereof as adjudicates that the Southern Railway Company and the Memphis and Charleston Railway Company are still entitled to use the privileges secured to them by the contracts set out in complainant's original and amended bills, for the reason that the question of tbeir present right to use such privileges is beyond the pleadings in the case. 
It is therefore ordered, decreed and adjudged, that the decree of said Court of Chancery Appeals be modified so as to strike out the clause above cited, to which .extent the decree of said Court of Chancery Appeals is modified, and in all other things it is affirmed. The relief allowed as to the State of Georgia does not touch her sovereignty, but concerns only her contracts as to the operation of the Union Depot, situated in .the city of Chattanooga, but more fully described in the pleadings. 
 
 51 
It is further ordered, adjudged and decreed that the ot:iginal and amended bills of the East Tennessee, Virginia and Georgia Railway Company be, and same are, hereby dismissed. 
It is also adjudged and decreed that the Southern Railway Company, which was made party complainant in the place and stead of East Tennessee, Virginia & Georgia Railway Company, upon its own application, and Cooke, Swaney & Cooke, sureties on its prosecution and appeal bonds, pay all the costs of the cause and of the appeal for which execution may issue. 
And it appearing to the court from the pleadings and the statements of counsel at bar that the question of title to the lot on which the depot stands as between the State of Georgia and the Nashville, Chattanooga & St. Louis Railway Company is not involved or intended to belitigated or adjudicated in this cause, and there being no controversy of any character between said parties nothing is adjudicated as between them, and no recitation in this decree of the decree of the Court of Chancery Appeals will operate to prejudice the rights of either of said parties as against the other. 
In view of all the facts and documents laboriously set out in the foregoing pages, I am unable to see any right in or concerning the Union Passenger Depot in Chattanooga, either legal or moral, that can possibly remain in the Southern Railway. The right of joint use seems tohave once existed, and the Supreme Court of Tennessee advises us that nothing is adjudged either way as to whether it yet exists. or not. Legally it has been judicially and conclusively ascertained that the land belonged to Georgia, that Georgia built the depot, and subsequently admitted the predecessor of the Southern Railway to a certain joint right of use therein for mutual convenience and advantage, and that some seventeen years ago the Southern abandoned this joint use. It was further 
judicially ascertained that the Southern had no right 
 
 52 
thereq,fter to interfere with those of its former partners \'.ho elected to continue the joint use. Every possible legal right has thus been determined except the solitary possible question of whether the Southern can now resume the joint use. That question would appear to be purely academic.. 
Mr. Henderson's letter to the Governor does not in..: dicate precisely the nature of the right now set up and demanded. It may be that he can more exactly define his demand. Should he do so the facts and documents here reported will doubtless make it possible to reach an immediate conclusion as to the demand. 
I now proceed to inform you as to the other principle matters at issue concerning the State's property in and along theW. & A. R. R. 
 
 53 
THE NASHVILLE, CHA'I"''ANOOGA & ST. Lours TITLE 
UNDER THE DEED OF I86o. 
Intimately connected with the claim of the Sout11ern Railway, discussed and reported on in the foregoing pages, is the question of title in the Nashville, Chattanooga & St. Louis under the deed of August 17, I86o. 
That the deed in question was void, seems to admit of no doubt. In t11e decree rendered by the Chancery. Court of Appeals in 1897, and already set out in this report, it was distinctly so held. In that opinion the court quoted and relied on Code section 1065. The Ian. guage occurs in tlte Code of 1895, as quoted by the court. It appeared also in the Code of 1882, in section 1008, in the Code of 1873 as section 1008, in the Code of 1868 as section 1012, and in the Code of 1863 as section 932. In act, however, none of the Codes had any application whatever, as the conveyance was executed two years and a half before the first Code was in effect. 
Nevertheless, part at least of the language quoted by the Chancery Court of Appeals was the law of Georgia. It occurs in the Act of February 23, 1850 (Acts of 1849-50, page 393), section 6, and reads as follows: 
The Governor shall not sell at any time any part of the right of way heretofore acquired by the State, nor any property or land that may be necessary now or at any other time for the erection of depots, wood-yar..Is, or water stations, or for any other improvements necessary or convenient to said road. 
Assuming, however, that the rest of the Code section quoted had been really law in August, 186o, no substantial difference could exist, as the reasoning and judg- 
 
 54 
ment of the court shows that the deed would nevertheltss be void. In fact the lands contemplated by the Code section as saleable were such as are referred to in the Act of February 8, r8so (Acts of r849-50, page 297), as "lands lying on the line, etc." It is well known that the State was at that time the owner of a number of lots and other parcels of land along the line entirely disconnected with any railroad uses or purposes. These were by the Act of r8so, February 8th,- permitted to be . sold at public sale. Some of them have been sold within the last ten years. The subsequent Act of February 23, r8so, forbade the sale of terminals in the language already quoted. That the Governor did not regard the Act of February 8th as applicable, and did consider the Act of February 23d applicable, i.s manifest from the recitals employed by him, as well as from the fact tbat the sale was not made in public. 
The question may arise as to the effect under the Act of February 23, r8so, of a recital that the land was not, in the opinion of the Governor, "necessary for the W. & A. Railroad for depots," etc. The Tennessee court has indicated that, in its opinion, the recital is unavailing against the fact. (See the opinion quoted.) Moreover, the known fact is that the depot was at that time already on' the property, and the conveyance included half of the building. .This would seem to exclude any doubt as to its necessity or convenience for -the purpose for which it was then being used, and for which in fact it was :sold. 
In this connection I would call your attention to the language of the Tennessee court in Elliot National Bank vs. western & Atlantic Railroad, reported in 2 Lea, 679. 
- The charter of the Western & Atlantic Railroad in the State of Georgia and the authority of its superin- 
 
 55 
tendent to execute negotiable paper must turn upon the construction of the Georgia Statutes. In the absence of any construction put upon them by the highest court of the State, our duty would be to construe them as best we could. But if the highest court of the State has already construed them, our duty is ordinarily to conform our decision to the construction given. 
It has been said by the Supreme Court of Georgia that the Western & Atlantic is not a corporation, and that the superintendent of that road belongs to the class of public agents, like the,Governor of the State (Dobbins vs. R. R. Co., 37 Ga. 240). The difference in the relation of public and private agents to their principals is well defined. A private agent will bind his principal within the apparent scope of his authority. But with public agents it is entirely different. Their powers and duties are defined by statute, which is notice to the world of the limitations of their authority, and no pretension of authority or customary action can amplify that authority beyond the statutory limitations. 
Assuming that the deed was void as title, the question arises as to whether it has since become valid. 
T~1e decree of 1875 has been' relied on as estoppel in regard to the title. The Nashville, Chattanooga & St. Louis Ry. Co., however, joined with the State of Georgia in 1895 in denying that it had any such effect, and the chancery court so held in 1897. If it were otherwise, the Southern and the Memphis & Charleston would 
take under that decree, as well as the N. C. & St. L. 
Moreover, on its merits, an inspection of the record of Smith, Governor, vs. the N. & C. R. R. Co. et al., in I873-1875, shows that upon no just interpretation of that decree could it be regarded as an adjudication of anything more than the liability of the occupant roads to contribute to the maintenance of the property. Besides, that decree affected only the actual ground cov- 
ered by the depot. The deed of 186o affects eight and three-quarters acres. 
 
 56 
Th~ question of time Is more serious. It has now been forty-eight_years since the conveyance was made. 
The Tennessee court has recognized the principle that Georgia, as a sovereign State, is .entitled by comity to extensive immunities in its courts. (See T~ppan vs. W. 
& A. R. R. Co., 3 Lea, 106.) In the case already herein fully discussed, in which the E. T. V. & G. Ry. Co. sued 
the State, the Supreme Court of Tennessee said: 
rhe relief allowed as to the State of Georgia does not touch her sovereignty, but concerns only her contracts as to the operation of the Union Depot, situated in the city of Chattanooga, but more fully described in the pleadings.  
In view of the ruling in the Tappan case, already referred to, it is by no means sure that Tennessee would apply the rule of prescription to Georgia. And this is especially doubtful when we take notice of the fact that the ownership and c;ynstruction of the Western & Atlank Railroad was by legislative declaration in the original Act of 1836, undertaken expressly ((as a Stc#e work," and has always been treated so in the decisions of our own court. The language already quoted from the Tennessee court in the Elliott case in 2d Lea indicates conclusively that that tribunal is disposed to accept the status of the road as declared by the Georgia court. Beyond any .question Georgia could not be estopped by prescription in her own courts in matters relating to this railroad and its appurtenances. (See Southern Ra.ilway vs. Ga., 116 Ga. 276.) 
Should it turn out, however, that the Tennessee court would admit the prescription rule as against Georgia, there are various other reasons why prescription might 
not he available as a defense in an action for the recovery 
bf this property. 
 
 57 
'fhe claimant has been, for instance, in possession as tenant for the past eighteen years of all the property pertaining to the railroad. As such tenant it would be entitled under the lease contract to the possession of the property embraced in the deed. Prior to that time the old lessee had possession, and the State could not have maintained an action. It is generally understood to be true, though I have no present evidence of the fact, that during the greater part of the period of the old lease the Jessee company held in some way in trust for the use and the benefit of the Louisville & Nashville Railroad Company who were the real tenants. That company is at present the owner of the majority of the stock of the N. C. & St. L., the present lessee, and has been for many years, and the two companies are, in a large sense,, one concern. 'fhe facts in regard to these matters are not accessible to me, but I refer to the subject as containing at least the possibility of a strong equitable ground of ex~eption to the running of time. 
So far as I know or can ascertain, the State of Georgia, aside from the Governor, who made the deed, and the superintendent of the road, never had any actual knowledge of the existence of the deed of August 17, 186o, until the year 1891, when it was disclosed by the cross-bill of the Memphis and Charleston R. R. Co. At that time the State would have been defeated by its own lease in any action for the recovery of possession. No mention of this conveyance was made in the Governor's annual message of 186o, nor at any time thereafter, and the annual reports of the superintendent of the road were equally silent. , Actual physical possession would ordinarily be notice in private cas~, but physical possession in the present instance, as to the depot at least, was equally consistent 
 
 58 
with the mere joint occupation which all the roads had for purposes of the public convenience, and with the further fact that the depot building was jointly built, paid for and used by the several lines of road. No express notice of adverse holding seems ever to have been given by theN. C. & St. L. 
The General Assembly of Georgia took notice of this condition in 1896, and by joint resolution directed that appropriate action be taken for the assertion of the State's title. (See Acts of 1896, page 341.) At that time, however, the bill was pending in Hamilton county which has already b.:en herein described, and it was deemed best by Mr. Wimbish, the special attorney, and by Governor Atkinson to await the determination of that cause, in the hope that the validity of the deed might be passed upon in the decree. The expected result was realized in part. 'l'he court held, as already shown, that no title passed under the deed. The effect of the decision, however, was destroyed by a recital in the judgment of tne Supreme Court of Tenn~ssee that the pleadings made no i~sue on this subject, and that therefore no adjudication resulted. 
Thereafter, in 1898, Mr. Wimbish again urged the advisability of suing for the recovery of these lands, and 
in the year 1900 Mr. E. T. Brown, then special attorney 
for tile W. & A. Ry., brought the question before Governor Candler whether action should not be still instituted. Nothing, however, has as yet been done. 
By reference to the deed of I86o, it will be observed that it refers to a previous executory agreement as having been made in 1855, and approved by Governor John.:. son. In Mr. Wimbish's report for 1896 he says that he has never been able to find any copy of such agreement, and that the executive minutes during Governor John- 
 
 59 
son's administration fail to show any record of his alleged approval thereof. I have been equally unable to find any place where this contract is set out or any evidence of Governor Johnson's connection with it. Recently, however, in the Atlanta Constitution, newspaper, of May 13, 1908, one of the officials of the Nashville, Chattanooga & St. Louis Railway published an interview in which he gave out what is alleged to be a copy of the instrument in question,, and the approval of Governor Johnson on it. I have set out in full a copy thereof in an earlier part of this report. 
Examination of the terms of the alleged agreement would seem to warrant the opinion that it docs not in any way affect the situation as already set forth. No rights are claimed under the contract of r855, which by its terms was merely executory. As an obligation of the State it was equally as unauthorized as the deed of r86o, and adds nothing to the validity of the latter instrument. 
I call attention to one other fact in reference to the deed of r86o. By its terms it was conditional. The passing of title under it was made dependent upon a condition precedent, to wit: the conveyance to the State of Georgia of a certain tract of land of about one acre. There is no evidence that the conveyance was ever made. It is said that the tract is in possession of the State. This is by no means certain. The land said to he the land in question has no visible sign of occupation exclusive in the Western & Atlantic Road, and, so far as I can tell, never has had. The actual possession is in the N. C. & St. L. now. Of course, it may be said that that possession is in the right of the State of Georgia, but there is no evidence to show .it. Legal title on the records stands in the name of the Nashville & Chattanooga Railroad 
 
 60 
Company, and the actual possession is in the same concern. There is no evidence that the condition has ever been complied with that was expressly made a condition precedent to the vesting of title. 
The $8,ooo.oo was probably paid. In Mr. Browp's 
report as special attorney of the Vv. & A. R. R., in the 
year 1900, he says in reference to these matters: 
The money was paid into the State treasury, and the .deeds were given and recorded, and the State has ever since had possession of the tract given in the exchange. 
I am not sure that these statements are entirely accurate. Possession may have been held, but I find no evidence of it. The deed may have been given, but I find no evidence of that. The money was .never paid to the State treasury, though I am inclined to believe that it was paid into the treasury of the Western & Atlantic Railroad. 
 
 61 
Tm.; CHATTANOOGA YARDS. 
Before leaving the subject of the Chattanooga terminals, it may be well to report in reference to Broad street and the anxious desire of the Chattanooga people. to open it through the yards. 
It was at one time contended that Broad street legally extended partly through the present yards, and that the city had the right to carry it on south of Ninth street, which is the present northern boundary of the yard. There were plausible grounds for this contention, but it is not necessary now to review them, for the following reasons: 
The State owned a point of land in the angle between Tenth and Market streets, cast of Market and disconnected with the depot yards. The city desired to open Georgia avenue and cut off this triangle. Litigation followed. At the same time the city of Chattanooga was moving in the direction of extending Broad street south of Ninth and through the depot yards. 
The whole matter was compromised and adjusted in 1879. The city of Chattanooga passed an ordinancc permanently closing Broad street south of Ninth, and a consent decree was entered enjoining any further interference with the opening of Georgia avenue. All parties were content, and no question is now raised as to the city's right to extend Broad street. 
For these reasons I do not trouble you or encumber this report with an elaborate statement of the facts. 
At the same time, it is well enough to take notice of the fact that the people of Chattanooga are extremely desirous now of extending Broad street. I have conferred with a number of prominent citizens there, and I feel safe in saying that they entertain great good will 
 
 62 
for this State and are not desirous of doing us any unnecessary injury. At the same time they feel, and earnestly insist, that the present shape of our terminals obstructs the development of the city. They insist that while it may be, and perhaps is, true that our road was there first and that the city merely grew to the depot, that this does not affect the fact that the development of Market street south of Ninth is greatly hindered by our yards. 
Our old freight depot property, corner of Ninth and Market, is perhaps the most valuable land in Chattanooga, and is easily worth $4,000.00 per front foot. I 
append here two letters received from Mr. C. E. James, 
of Chattanooga, which explain ti1emselves and afford some idea of the value of this land : 
April 22, 1908. 
Mr. Hooper Alexander, Atlanta, Ga. 
DEAR SIR : Referring to the property owned by the State of Georgia in Chattaonoga; its present value is perhaps beyond the expectatio111 of any citizen of Georgia who has not carefully examined ti1e situation. You have gone over the property several times in detail, and ought to be well posted as to its location and approximate value.  This property can he leased in small tracts for business houses, ea:ch one of which would be a heavy shipper over tne road, and every house could have a railroad track connecting with the W. & A. Ry. at its back door. The property can be leased now, without the State expending one dollar on it, at a rental that will pay interest on four million dollars, and leave enough room for a package freight depot for your road-all practically in the center of town. When you consider that tile Patten Hotel (said to have cost a million dollars) is within I so feet of the center of this property, and directly across the street, the 12-story James building is within one block 
 
 63 
 
of the property, and the Read House immediately across the street from the property, you will see that the property of the State of Georgia is practically in the center of the city of Chattanooga. 
If by your energy and attention to this matter you save this valuable property to the State of Georgia, or get its value, you will have performed an act for which every citizen of Georgia should feel grateful to you. 
The Tennessee river will be open for navigation foe year round from Chattanooga to the Mississippi river within eighteen months. This would give the W. & A. Railroad an independent outlet to all points in the Sout~ west. The citizens of Chattanooga are very favorable to the State of Georgia and its property, but we dislike to see a great piece of land so valuable, in the center of the city, used for the storage of empty cars and the State get little or no revenue from the property, when it can be turned into a great revenue-producer for the State of Georgia, and without the expenditure of one dollar in money. I hope the people of Georgia will sustain you in your efforts to preserve their interests. 
 
Yours truly, 
 
(Signed) 
 
C. E. JAMES. 
 
May r6, 19o8. 
H on. H ooper  Ale~ander} Atlanta} Ga. 
DEAR SIR: I will, for myself and associates, pay the State of Georgia four per cent. interest on a valuation of $4,ooo,ooo.oo, equal to $r6o,ooo.oo net per annum, and all taxes, making an advance payment of $r6o,ooo.oo, and pay for the lease thereafter annually in advance to the State, for a 99-year lease on the land belonging to the State of Georgia in the city of Chattanooga lying on the east side of the east line of the Union Passenger Depot. The west line of the proposed leased property to commence at Ninth street and extend south along the east side of the Union Passenger Depot; thence on a curved line southeast parallel with your main track going 
 
 .... 
 
64 
 
into the passenger depot to a point where Market street crosses your tracks. This in no way to interfere with your continued use of the Union Passenger Depot. 
 
(Signed) 
 
Yours truly, 
c. E. JAMES. 
 
Since the receipt of these letters, Mr. James has frankly stated to me his opinion that the lands can be leased for more than his offer. It is, of course, impossible for us to accept the proposition as made, nor am I prepared to say just now that it is desirable to do so, but I deem it proper to say that Mr. James is entirely able to comply with his offer. By the expiration of the present lease this property may be reasonably expected to afford a revenue more than double the amount offered in tiJe letter in question. 
Meanwhile the people of Chattanooga are quite anxious to extend Broad street,, and insist that it is competent for the Legislature of Tennessee to authorize condemnation for that purpose, and that sooner or later it will do so. The Chattanooga people are disposed, however, to be patient, and I am inclined to think that they will await the conclusion of the lease, if a reasonable agreement can be now made. They feel, however, that the State will be profited by the change, and therefore ought not to object. From careful personal examination of the ground, I am disposed to think they are correct as to the possibility of the State's profiting by some judicious change. 
The present yards of the Western & Atlantic are used by the lessee merely to store empty cars. If the State should hereafter operate the road1 or lease it to any other than the present lessee, it would be found that the grounds are too small. For team track deliveries twelve 
 
 65 
or fifteen acres will be necessary. For switching yards, under modern conditions, we will need a hundred acres. It is said to be possible at present to acquire these necessary lands, 1convenien:tly located, ;for a comparatively small sum. If the present yards should be converted into business property, it may be relied upon as certain that they wili yield a very great revenue. 
I venture to suggest that authority should be vested somewhere to negotiate on these subjects. It will save trouble and m:aney, and, in my opinion, will prove advantageous to the State. 
5r 
 
 ; 66 
COMMERCIAL REAL ESTATE IN CHATTANOOGA. 
From the passenger depot in Chattanooga on Ninth street eastward to Market street, about 400 feet and thence southward on Market about 1,100 or 1,200 feet, a fringe of small business houses has been erected around two sides of the depot yard. These houses serve as a sort of a screen or fence around the property, concealing unsightly yards from the view of passers on the street. At the same time, they yield considerable revenue to the lessee company. 
Some of these houses were erected by private persons during the period of the old lease. These inured to the State on account of the tenants' failure to remove them, and passed thence to the present lessee in 1890. The others have mostly been erected during the present lease by tenants taking leases on the ground only. All of them inure to the State of Georgia in 1919 under the terms of the present lease contract. Whether that right is safeguarded in the contracts between the lessee compan~ and the occupying tenants, I have no means of knowing. If not, it is more than likely that controversies will result. 
There are two other pieces of real estate on the east side of Market street to which the State holds undisputed title, but the rents of which are received by' the lessee company. One of these is a triangular block bounded by Market street on the west, Tenth street on the north, and separated on the east by Georgia avenue from the new Patten Hotel. This block is now covered by a four,story brick building occupied by the Southem Express Company. 
The present rental value of these various properties is considerable. I am inclined to think that they can 
 
 67 
safely be reckoned as worth $Ioo,ooo.oo a year for rental and probably much more. The lessee does not report that much, but it must be remembered that many of the tenants built their own1 houses and pay ground rent only. 
Two clauses of the lease Act are pertinent to be considered in connection with this subject. The first is that part of section 7 which makes all improvements inure to the benefit of Georgia and all attachments to the real estate permanent, and the second is that part of section I I which permits the subletting of property not used for railroad purposes, provided it is safe in the opinion of the Attorney-General. The last of these clauses seem to imply a right in the Attorney-General to be advised of all contracts of rent and their terms. The first suggests a reason why it may be well to demand oyer of the leases. 
At the extreme southern end of the Market street front,, as the title is now recognized, the line of the State passes through a small house. The points of entrance and exit of the line, as claimed by the occupant and owner thereof, is visibly marked and at present there is no probability of controversy. Litigation, however, has taken place in the past about this line, and was decided adversely to Georgia. Whether the decision was correct or not is not entirely certain, but it is final. Unless some permanent method of keeping up with our interests along the road is substituted for the present intennittent attention given the subject, we will always be i111 danger of litigation over this and other matters, and wilt" always litigate at a disadvantage. 
 
 68 
RIGHT OF wAy FROM BOYCE. 
In the year 1879 the city of. Cincinnati was moving actively in the construction of rail communication with the South by way of what is, or was, known as the Cincinnati Southern, owned chiefly, if not entirely, by that city. It was not foreseen then that the road would be leased and so pass into the hands of any r~ilroad combination, and the State of Georgia looked forward with confidence to a time when the Cincinnati Southern would become a valuable ally to the Western & Atlantic and a communicating link with the territory north of the 0:1io. 
For this reason it was desired to extend every assistance and encouragement to the new road, which met the Vvestern & Atlantic at Boyce, about six miles northeast of Chattanooga, and to provide physical facilities for exchanges of freight. As a means of carrying out this policy the General Assembly passed an Act in 1879, which will be found on page 218 of the Acts of 1878'-79, granting license to the Cincinnati Southern to lay its track on the Western & Atlantic right of way from Boyce City to Chattanooga. The rigl)t of way is only sixty-six feet along this distance. The Cincinnati Southern availed itself of the privilege, but has since acquired a right of way of its own along our western boundary, with the result that it has ample space for half a dozen tracks, while the Western & Atlantic has only thirtythree feet of right of way. 
Meanwhile these lands are growing daily more and more expensive, and the time is rapidly approaching when we must build more tracks to meet the demands of an increasing traffic. 
In addition to these considerations, the Cincinnati Southern has been leased for a long period to the Cin- 
 
 69 
cinnati, New Orleans & Texas Pacific Railway Compa::1y, a .!nere operating corporation, generally understood to . ie controlled by the Southern Railway. The latter company no longer co-operates with the Western & Atlantic, but diverts its traffic to its own lines, so that the moving cunsiclerations fully recited in the Act of 1879 have entirely failed. 
I submit as a legal proposition that the Act of 1879 is .a mere license revocable at pleasure. 
 
 70 
RIGHT OF WAY IN WHITFIELD COUNTY. 
Another uocompensated use of the Western & Atlantic right of way, pregnant with grave danger in the future, if not attended to, exists in Whitfield county, covering seven miles of our line south of Dalton. This does not refer to the use of the Western & Atlantic yards by the Southern Railway at Dalton:. I understand it to be true that the Southern uses the yards at Dalton, not under any daim of right, but by virtue of some lease or contract with the lessee company. If this be true, it is apparently in violation of section I I of the lease Act. But reference is intended here, not to this particular matter, but to the use of the Western & Atlantic right of way by the main line of the Southern Railway for some seven miles south of Dalton,, for which that company claims some sort of legal right under the Act of December I4, 1859 (See Acts of I859, page 3I3.) 
Whatever rights were created by that Act in the Dalton & Gadsden Railroad are claimed to have been transmitted through successive companies to the Southern Railway. There are abundant reasons for denying that this is true. One of them stares us broadly in the face in the fact that by section 2I67 of the Code, subsection I 1, it is expressly provided that, in cases of judicial sale of railroads, no tax exemptions or other special privileges or immunity passes to the purchaser except such as go under the general incorporation law to all companies alike. In addition to being a special privilege, greater than such as are generally granted railroads, this par- 
ticular privilege, if it ever was created, involves pro 
tanto a substantial immunity from taxation. But in fact no such privilege was ever created. The 
Act of I859 manifestly created no right whatever in the 
I 
 
 71 
Dalton & Gadsden Company either for itself or its successors. It was not self-executing, but merely authorized the Governor to granJt: certain rights. The paralellism is perfect to that part of our Constitution which authorizes the General Assembly to grant certain tax exemptions. No exemption followed until the Legislature 
exercised the power. So here1 it required an exercise  
of the executive discretion before any right existed or could arise in the Dalton & Gadsden, or any other railroad company, to lay its tracks on the right of way of the Westem & Atlantic Railroad. No such permission has ever been granted. 
As nearly as I can learn the facts, the present line of railroad was built on the Western & Atlantic Railroad right of way by the Selma, Rome & Dalton Railroad Company about 1870, and that company merely usurped the authority. 
Suit was brought in 18gB in Whitfield county, by direction of Governor Atkinson, to establish the State's title to this right of way and oust the possession of the Southern. The case went to the Supreme Court, where. it was held that Georgia could not maintain the action. during the continuance of the lease.  (See Southertt Railway Co. vs. Georgia, 116 Ga., 276.) This terminated the efforts of the State to assert its title. Meanwhile the Southern Railway remains in possession. Prescriptiot~; is not running against the State, but there is a sort of moral strength accruing in favor of the usurped title that tends to make it very difficult for the State ever to assert her own or secure compensation. for the deprivation of it. 
With the lapse of time, many interests become enttangled with de facto railroads. Communifies are built up along their lines. Lands become valuable and almost 
 
 72 
 
impossible to acquire. The road itself becomes a neces- 
 
sity to the community, and when the alternative is, finally 
 
presented of either giving up a right of way wortn many 
 
thousand of dollars, or condemning the wrong-doer to 
 
the penalty of buying a right of way for itself, the in- 
 
terest of the local public intervenes, and the 'loss is 
 
 
 
shifted upon the shoulders of the taxpayers at large. 
 
vVitn the Southern Railway constantly seeking new 
 
privileges at the hands of the State, it would seem not 
 
unreasonable to insist upon a present arbitration of dis- 
 
puted rights as a sine qua non to the grant of additional 
 
favors. 
 
 73 
 
RIGHT oF vVAY IN FuLTON CouNTY. 
 
For many years, and until the last six months, the tracks of the Southern Railway were on the Western & Atlantic right of way, from a point at or near Simpson street, in the city of Atlanta, to a point about six miles west of the Union Passenger Depot, the extent of the use being sometimes only one rail and in some places as much as two tracks. vVithin the last six months part of this use has been given up, as ''Zill be explained later. The use was and is justified by the Southern under an executive order of Governor Colquitt's dated in August, I88I, granted upon the petition of the Georgia Pacific Railroad Company, and for its use and benefit, as follows: 
ATLANTA) GA.) August 6, I88r. 
 
"WHEREAS) the Georgia Pacific Railroad Company has 
 
petitioned for the right of way over a portion of the 
 
Western & Atlantic Railroad, 
 
It is therefore ordered, in pursuance of the authority 
 
conferred by the Acts of the General Assembly, which 
 
Acts are specifically referred to in the petition, that the 
 
privilege is granted to the Georgia Pacific Railroad Com- 
 
pany of building its road on the right of way of the 
 
\Vestern & Atlantic Railroad for a distance not to exceed 
 
four miles from the depot in Atlanta, but upon the fol- 
 
lowing conditions: 
 
First-That the Georgia Pacific Road shall grant the 
 
same privileges to the \Vestern & Atlantic Railroad if so 
 
desired. 
 
 
 
Second-l:hat the occupation and use of the right of 
 
way by the Georgia Pacific Road as herein granted, shall 
 
be so exercised as to interfere as little as possible with 
 
the use of the said Western & Atlantic Road by the pres- 
 
ent lessees, and any changes which may be necessary to, 
 
be made by the reason of the renewal of the present track 
 
 74 
 
<Or the change of their location, or in any other way, 
 
shall be at the expense of the Georgia Pacific Railroad. 
 
But prior to the occupation and use of the right of 
 
way of the Western & Atlantic Railroad, the officers of 
 
that company shall be consulted, so that there shaJl be 
 
the least possible interference with the business of said 
 
road. 
 
 
 
.Third-Believing that the building of the Georgia 
 
Pacific Railroad, and its extensions by a continuous line 
 
to the West, is of great importance to the people of this 
 
State, and that the enterprise should be fostered and en- 
 
couraged while in its inception, and further l!lieving 
 
that pecuniary compensation for the use of the right of 
 
way which, as above guarded, can not be injurious to the 
 
interests of the State road, ;should be moderate, the 
 
privileges of the right of way are hereby granted in con- 
 
sideration of the sum of one thousand dollars to be paid. 
 
It is further ordered, that this order and the petition 
 
of the Georgia Pacific Railroad Company referred to 
 
above be entered upon the minutes of the Exectlltive De- 
 
partment." 
 
(Signed) 
 
ALFR0 H. CoLQUITT, 
 
Governor. 
 
The history of this matter is necessary in order to f{)rm a judgment as to whether the Southern is entitled to use the right of way, as well as whether the right, if it exists, is irrevocable. 
1. The Georgia Western Railroad was chartered by Act of February 18, 1854, with usual powers, and to build a railroad from Atlanta by way of Villa Rica to the Alabama line. (See Acts of 1853-4, page 440.) 
2. By Act of December 201 186o (Acts of 186o, page 192), the charter was amended b.y authorizing an increase in the number of directors. In the second secti0n of the same Act, the Governor was authorized, in his discretion, to grant the company the privilege of building its track on the Western & Atlantic right of way for 
 
 75 
not more than one mile from the Atlanta depot on the same conditions as the grant to the Dalton & Gadsden Railroad, and upon such payment by the road as the Governor should deem right and proper for the interest of the State. By the Act of December 11, 1866 (Acts of 1866, page 127), this limit of one mile was increased to four. There was another amendment to this charter in .1868, but it is not relevant here. 
3 By Act of August 23~ 1872, the General Assembly itself by direct grant authorized the Georgia Western to lay its track on the Western & Atlantic right of way to any distance east of the Chattahoochee, 
"Provided that the right of way of the Western & Atlantic Railroad shall not be used beyond the limits now allowed by statute, except. by the written consent of the lessees of the Western & Atlantic Railroad." 
4 By Act of February 29, 1876 (Acts of 1876, page 118), it was provided that in case of the sale of any railroad under foreclosure or other judicial proceeding, the purchasers might become incorporated by filing a certificate with the Secretary of State, etc., and such corporation should possess ua:ll the P'owers, rights, immuni-ties, privileges and franchises," etc., that were {(possessed n.ml enjoyed" by the company whose assets were sold, uwnder atz.d by virtue of its charter and any amendments 
thereto, and of other larws of this State," etc., but with 
this limitation contained in the last section, that the Act should not vest in such purchasers any exemption from taxation existing in the old corporation, or operate to limit the power of the Legislature to alter, modify or withdraw the charter and franchises, etc. 
5 By Act of February 27, 1877 (Acts of 1877, page 236), it wa~ provided that in case of the sale of the Georgia Western by judicial decree, the purchasers 
 
 76 
might become incorporated by filing a certificate with the Secretary of State, etc., and that such corporation should possess "all the powers, rights, immunities, privileges atnd franchises," etc., that were ''possessed a,nd enjoyed" by the Georgia Western "under an Act approved February 18, 1854, entitled, etc., aind aat Act assented to December 20, I86o, entitled, etc., and any ot'hcr amendment to its charter and the other !arcus of this State." 
\iVhat effect, if any, the Act of I877 had on the Act of I876, so far as it could otherwise have applied to the Georgia V/estern properties, is a question that I frankly confess my inability to answer. Under the present Constitution, Art. I, Sec. 4, Par. I (Code section 5732), the Act of r877, I take it, would be void beyond question. I take it to be almost equally certain that the corresponding section of the Constitution of I868 (Art.r, Sec. 26), did not invalidate the Act of I877 
Taking that Act then to be valid, the question arises as to whether it repealed the Act of I876 so far as concerned the Georgia Western. It either repealed the general Act as to this particular road and substituted a new rule for its case, or it provided a cumulative right for the case of this particular road and left its purchasers the option to take which they preferred, or both. There were five sections in the Act of I876 (III-Vfl) embracing many valuable powers, that were not in the Act of I877 at all. The provisions of section 8 of the Act of r876 reserving to the Stat~, in cases arising under it, the right to alter the charter or withdraw its franchises, were -not contain~d in the Act of I877, but I take it that this omission was immaterial, as that right was already reserved under the general laws of the State. 
Another question arising upon these enumerated Acts, equally difficult to determine, is whether the Act of r87z 
 
 77 
conferring upon the Georgia Western the absolute and unconditional right and privilege to occupy four miles of the \Vestern: & Atlantic, or more if consented to by the lessees, repealed the Act of r86o as enlarged by the Act of r866, which conferred no such right by its own terms upon the Georgia vVestern, but did empower the Governor to grant such a privilege in his discretion and for a consideration. 
With great doubt as to how far the courts may approve the opinion, I adopt for the purposes of this report the view that in neither case was there any repeal by impli-cation. 
In r88r the Georgia Western was sold under a judicial decree from Fulton Superior Court to J o!m T. Grant, with all its franchises, etc., except the right to be a corporation. Thereafter John B. Gordon and his associates 
were commonly understood to be a corporation known 
as the Georgia Pacific Railroad Company, and it is alleged, and I accept it to be true, that they took an assignment of his purchase from John T. Grant and became ir,corporated by filing a certificate witn the Secretary of State. 
Neither the Act of r876 nor the Act of r877 required or made provision for any record of the certificate, and the certificate can not be found in the office of the Secretary of State. 
In a book published by H. W. Thomas in r895, purporting to give a history of all railroad charters in Georgia, it is said that Jonn B. Gordon and his associates filed a certificate June 6, r88r, under the provisions of the Act of p876. The author of that book was at the time of its publication a clerk in the office of the Secretary of State. 
In a report by Judge W. A. Lilttle to Governor Nor- 
 
 78 
then in 1893 it is said that the Georgia Pacific was incorporated under both Acts. 
Under the provisions of the franchise tax Acts of 1903 all railroad companies are required to file in the Comptroller-General's office copies of all official docu ments under which they claim their franchises. Inquiry at the office of the Comptroller-General discloses the fact that the Southern Railway makes no claim whatever under any of the Acts chartering the Georgia Western or the Georgia Pacific. This implied renunciation of the easement will doubtless operate as an estoppel if any question should ever come before the courts on the su!r ject. 
I think there can be no reasonable doubt that the Act of 1872 was a mere license to the Georgia Western revocable at the pleasure of the grantor, even under. tile strictest code of laws. Unde_r the reserved right of revocation that has been expressed in our codes since 1863, this would be even more certain. Under section 8 of the Act of 1876, the State expressly put the purchaser of the Georgia Western upon notice that it reserved the right to withdraw this or any other grant. If the Georgia Pacific incorporated under the Act of 1876 it took its franchises cum onere) and I imagine that this would be true even if it also incorporated under the Act of 
1877 Assuming, however, that the Georgia Pacific incor- 
porated only under the Act of 1877, it seems to me that the right of revocation would ~xist in virtue of the general law of the State just the same. 
But the Georgia Pacific and its successor apparently elect to claim this right as in the nature of an irrevocable contract through Governor Colquitt's license, granted upon a consideration. Able lawyers contend that the 
 
 79 
mere payment of a consideration does not necessarily affect the revocability of a license or give to it the quality of a contract. I express no matured opinion about that, but the fact is that the $r,ooo.oo was never paid so far as any record shows. 
My own opinion is that Governor Colquitt had no legal authority to grant the permission of r881. If the Act of r86o was repealed by the Act of 1872 he certainly had none. Assuming, however, that it was ~ot so repealed, the view I take of the matter is that no right or privilege whatsoever was vested in the Georgia Western by the second section of the Act of r86o. I again illustrate by our constitutional provision as to tax exemptions. That clause has no operation whatever in favor of any institution of purely public charity. It merely delegates authority to the Legislature to bestow such exemptions. No rights vest until the Legislature acts. 
So with the Act of r86o. The Georgia Western took nothing under its second section. There were rights and powers conferred upon it by the first section that did vest, and these afford a subject matter upon which the Act of 1877 may operate, when it provides that the purchaser shall succeed to the rights, etc., which is "possessed and enfoyed)J under the Act of r86o. But this particular right was never bestowed on the Georgia Western, and never vested in it"'or came into existence during the entire life of that corporation. It never was a rig~1t or privilege "possessed and enjoyed)) by the Georgia Western Company. 
The Act of r86o was not the grant of a privilege or easement, but a mere power to an agent. It no more bestowed a right on the company than a power of attorney to make a deed vests title !in the contemplated 
 
 ~0 
 
grantee. Grants against the interests of the sovereign 
 
are strictly construed. This is elementary. The Act of 
 
186o created a power exercisable in favor of a certain 
 
person. That person survived t11e sale of its franchises 
 
in r881 and eventually became defunct, and the power pe~ished in the hands of the agent without ever being 
 
exercised in favor of the contemplated beneficiary. 
 
According to my view of it, then, Governor Colquitt 
 
'had no legal right to grant this easement to the Georgia 
 
Pacific, and the grant was void. Even: were it other- 
 
wise, I think the liceme would be revocable, and in so 
 
far as the present use may be justified under the Act of 
 
 
 
1872, there can be no doubt that it is revocable. If so, it is not unreasonable now, when the Southern has be- 
 
,come powerful and rich, to require it for the future 
 
either to pay an adequate rental or provide its own way. 
 
There is another matter, however, in connection with 
 
this use that is worth consideration. In no event was 
 
there any indiscriminate grant. The Georgia Pacific was 
 
a particular line of rail and the grant contemplated. one 
 
track for this line as a help and encouragement in its 
 
ntancy. It certainly did not justify a wholly different 
 
.company in using the right of way as was done when the 
 
East Tennessee, Virginia and Georgia Railroad Com- 
 
pany came in over it. At present both of these prop- 
 
erties have passed to the Southern. If it can maintain, 
 
as it does, two tracks and bring in two of its lines over 
 
this right of way, it can hereafter build a line to Mont- 
 
gomery and bring it into Atlan~a over a third track. 
 
The Acts of 186o and 1866 limited the use to four 
 
miles. The Act of 1872 imposed the same limit, except 
 
that it might be extended by the written consent of the 
 
.old lessee company to a greater distance. No such con- 
 
.sent was ever obtained. Governor Colquitt's license was 
 
 81 
for four miles .only. In fact, however, the Georgia Pacific and the Southern used the right of way for six miles, except that at one point about two and a half miles from the depot it left the right of way for a short distance, coming back to it again somewhere short of the three-mile post. It then left the right of way again at a point about three and a quarter miles from tne depot and came back to it about four miles from the depot, remaining on the right of way then to the six-mile post. 
The Southern persisted in this use for many years. Some ten years ago suit was brought by the State to oust the use, but it had been agreed that the Whitfield county case should control this one, and such was the necessary \conseq~Uence irresp~tive of 't:he agreem~t. The case was therefore disposed of by the judgment in the 116th Georgia, already referred to. 
Since the last session of the General Assembly the Southern has removed its tracks from beyond the four. mile point and procured a right of way of its own. I do not know it to be true, but I have been informed by persons employed by the lessee that this removal was. secured by the lessee upon condition of allowing the Southern to put in a second crossing for its belt line over the main track of the W. & A. 
The Southern still maintains the old G. P. track as it~ main \ine on our right of way for about three or three and a quarter miles, as first described, this use being largely in the city of Atlanta. 
While prescription is said not to run in these matt~rs the difficulties of actually recovering this valuable rignt of way are daily growing more serious. The property is badly needed now, and will be indispensable in a few years. If the lessee had possession it would be almo.:;t 
6 
 
 82 
obliged to lay additional tracks now. These valuable improvements would inure to the State. The money lost to Georgia from the present situation is very great. 
It would seem reasonable to s.ay that the Southern Railroad ought to consent to a commission or board of arbitration to settle tne question. If it will not, perhaps the State could compel it by granting no other franchises until it consents to do justice. 
 
 83 
THE BELT' LINE OccuPATION. 
The Georgia Pacific Railroad Company sold its franchises and assets, being all the property of the old Geor- 
gia v.;estern, except its franchise to be a body corporate, 
to an Alabama company of the same name, and this company subsequently became the Georgia Pacific Railway Company, an Alabama corporation. 
1 he d1rectors of thi:s company neld a meeting in Birmingham in 1882 and resolved to build a branch or belt line from its main line near Atlanta, to the main line of the R. & D. R. R. It thereupon filed with the Georgia Secretary of State a certified copy of the resolution and proceeded to build. It had no authority in law whatever for this action. 
It not only buiit tlfe belt line of some three or four miles in length, but it put in a crossing on the tracks of the W. & A. It has been said that it also laid its belt line track for something like a mile or more on the W. & A. right of way. More than fifteen years ago the lessee was t:omplaining of the danger and inconvenience resulting from this crossing, and several lawsuits were filed about it by the State. 
In October, 1894, there was an agreement between the lessee and the Southern for the settlement of this matter, whereby the lessee granted and the Southern accepted, subject to the rights of the State, a license to cross, it being agreed that the Southern should at its expense move the crossing to a point some 900 feet east of the point then used and maintain it, giving the lessee prior right of passage, and that the old crossing and the encroaching tracks should be removed. This agre~ent was approved and consented to by Governor Atkinson by 
 
 84 
executive order, provisional in its character and dependent on the ratification of the Legislature. The Legislature did ratify it by resolution of December r6, 1895 (see Acts of 1895, page 461) 1 and so far as I know the matter has been ever since regarded as settled until the termination of the present lease, the Southern meanwhile occupying the admitted status of amere licensee. 
Recently, and within the last six months, I observe upon inspection that the Southern has put in a second crossing about as far west of the original crossing as the licensed crossing is east of it. I am informed, but not from the officials of the lessee, that this was con sented to by the lessee upon condition that the Southern should remove its tracks from the last two miles of the old right of way, which has ~een done, as heretofore stated. 
I regret that I am not able to speak more accurately as to this belt road matter, but further investigation will be needed before I can do so. It may be that t!1e lessee has advised you about it. If not it will doubtless do so upon request. 
 
 85 
VIOLATIONS OF THE LEASE. 
I. 
IN THE MATTER OF TAXES. 
By the terms of the lease the lessee was required to pay iaxes to Georgia upon two accounts: 
I-A tax on income. 2-An ad valorem tax on all property owned or controlled by the lessee not received from the State. The tax required on income was stipulated to be "such taxes upon their income as is now paid by the Central Railroad and Banking Company." For a description of this tax you are referred to the original charter of the Central Railroad & Canal Company, section 7 (Acts of I833, page 248), where you will find the requirement to be the payment of a tax of one-half of one per cent. 0:1 the net income. The reason for this requirement is so plain_ that he who reads may run. It had its origin in the lease of 1~~70, and in the purpose to put the leasing company upon exactly the same footing in every particular as e\ery other railroad in Georgia. Prior to I873 no railroad in Georgia paid any ad valorem tax. Some had charter exemptions and some had not, bu.t those who were not exempt were nevertheless not taxed, the policy bei;1g to treat all alike. The exemptions were all limited b,y the condition that they should pay a tax of one~half of one per cent. on net income, and this tax was imposed upon all roads. When the road was leased in I87o, the rental was looked upon as equivalent to an interest charge on construction. This offset the fixed charges of other 
 
 86 
roads. To put the lessee on a basis of equality otherwise, it was provided: 
And be it further enacted, That the said lessees shall never charge a higher rate of local freights on said road than the average rate charged by the Georgia Railroad & .Banking Company, the Central Railroad & Banking Company and the Macon & Western Railroad Company, for like local freights over said roads.; and said company shall have the same exemptions, privileges, immunities, rights and guarantees, and shall be subject to the same liabilities, disabilities, and public burdens of said railroad companies last mentioned, and no more, in all cases where this Act js silent and has made no provision on the subject. 
vVhen the lease Act of I 889. was passed the General Assembly found the lessee liable for the same tax as the old Central, and continued the liability in the language quoted in the beginning of this article. 
The lessee then ~y the terms of the bargain should pay one-half of one per cent. on net income. It has never done so. The amount paid annually is less than the reports of the road show its liabi11ty to be. I presume that the company deducts the rental from the net income. "Net income" is a term of definite significance, and means the surplus above "operating expenses." Interest on funded debt and rental of the property are not "operating expenses." This is well illustrated in t~1e case of the Georgia Railroad & Banking Company, where the rental is not deducted. The purpose of the lease Act was to put all the roads on the same footing. It is immaterial whether the rental is paid to the State or some one else. 
The tax on property not received from the State is based upon a like principle of equality to all. The rental is paid for the plant equipped as it was in 1870. Modern railroads demand and have equipments many times as 
 
 87 
valuable as that. It was thought fair to exempt the lessee from taxes on that part of its plant owned by and rented from the taxing power, but there was no more reason to exempt the lessee from taxes on other equipment, not derived from the taxing power, than there was to exempt from taxes on other roads it might own, as, for instance, the Rome road. The lessee pays an ad valorem tax on the Rome road, and should pay a tax in exactly the same way upon personalty not hired from the State. The lease Act so requires, and it is so provided in the lease. Moreover, justice to its competitors require this exaction. Otherwise the principle of equality is violated. 
That this class of property "owned or controlled" by the lessee is of great value is evident from its reports, where enormous sums are charged in its operating expenses for the hire of locomotives and other equipment, thus reducing the net income. Property thus in use in Georgia is taxable under the general law irrespective of contract. The contract specifically provides for its taxation. 
II. 
IN THE MATTER o:F SuBLEASING. 
By the express provisions of section I I of the lease Act, assented to in the lease, the lessee covenants that it "shall not sublet said road, or any part thereof, to any company, corporation or party." 
What may have been :the moving reason for this covenant I am only abe to conjecture, and the reason for it is perhaps immaterial. I suggest, however, that one very good and sufficient reason lay in the obvious danger of resultant controversies and the litigation that was 
 
 88 
and is at all times likely to arise, involving the State. The contract of 1882 with the Memphis and Charleston is a case in point, and certain rights in the use of the right of way allowed the old Marietta and North Geor- gia was another. Be that as it may, the covenant was made. 
The Seaboard Air Line Company runs its trains into. the city over the tracks of the W. & A. for about three miles, and apparently upon some contract or agreement with the lessee. The nature of that contract I am unable to state. I presume the lessee will furnish a copy of it upon request of the Governor. It is not easy to imagine any form of agreement that would not be in substance and effect a violation of the covenant. 
The Louisville and Nashville Railroad Company runs its trains, both freight and passenger in large numbers, from two separate lines over the Western & Atlantic tracks, and apparently by consent of and agreement with the lessee. One of these lines is the old Marietta & North Georgia, coming from Knoxville by Blue Ridge, in Fannin county, to Marietta. The other is a new line from Cincinnati by way of Wetmore in Tennessee and Cartersville. I am not able to state the nature of the agreement, but I would again suggest that it is hardly possible to conceive a reason why this is not a violation of the lease. It was conceded that the lease would be violated by an agreement as to the Belt Line crossing. 
At the present time the Atlanta, Birn1ingham & Atlantic, a new road, is preparing to come into Atlanta 
over the Vv. & A. tracks for two miles, and has already connected its iine with the \V. & A. tracks at the two- 
mile post. This also is apparently by contract or agreement with the lessee, and is subject to the same covenant. 
In the case of the A., B. & A. there is this further 
 
 89 
suggestion to be made, that at the two-mile post the State owns a lot of about two acres adjoining the right of way, bought from Chapman Powell in 1857. This lot is vacant, except that the Southern Railway crosses it with several tracks near its eastern or northeastern side. In building to the Westerri & Atlantic tracks, the 1\., B. & A. has built across the Powell lot in a diagonal direction. I know of no authority for this seizure. \Vhether it was in any way authorized by the lessee or not I do not know, but apparently it was, as the lessee was in possession and does not appear to have offered any objection. 
All four of the roads mentioned appear to have obtained some sort of contractual rights in the use of the Union Depot. 
In the case of the two L. & N. lines now using the Western & Atlantic, it seems proper to say that the use involves serious financial loss to the State of Georgia in several ways. 
In the first place it enables these two lines to extend, one fifty miles and the other twenty miles, into Atlanta without the payment of any tax. I should estimate the annual loss to our revenues in this way at somewhere from five to ten thousand dollars or more. 
In the second place it necessarily takes a considerable part of the lessee's volume of business, thus reducing its net income, and consequently the tax thereon. What reason may induce the lessee thus to assist a competitor at its own expense, I am not able to state, b,ut it must be remembered that the L. & N. owns a majority of the stock of the lessee company, and consequently is able to control it. If in so doing, it does under the name of the L. & N. a business that would normally go to it under the name of the W. & A., the difference in the volume of 
 
 90 
business may be immaterial to it. It is, however, quite material as a saving to it, and a loss to the State if the profits on this business are thereby relieved of the stipulated income tax. 
Another and very serious loss to the State is in the injury to the commer<:ial value of the W. & A. R. R. This road is one of the heaviest carriers of freight and passengers per mile of road in the United States. Its net earnings in 1903 went, according to the reports of the road, as high as $955,000.00. Since then there has been some decline, but it is still a great money-maker. The value of the road, either to sell or lease, is heavily affected by anything that diverts its business to other lines. 
There are other ways yet in which the interest of the State would seem to be suffering from these arrangements. Apparently they are in violation of the contract. Whether they are, in reality, so or not, will depend, I presume, upon the exact nature of the contract, and other facts exclusively in possession of the les.see and the usmg roads. The knowable facts are as I have stated them. 
 
 91 
MISCELLANEOUS MATTERS. 
There are many other matt~r.s seriously needing attention that I have not been able to investigate fully, and indeed was not called upon to go into. Some of them are as follows : 
The L. & N. use of the right of way at Marietta, encroachments on the depot grounds by other roads at Cartersville and Kingston, the Southern's use of the W. & A. yards at Dalton and various open questions about boundaries at different depots. 
The city of Chattanooga owed the State $s,soo.oo for damages in opening Georgia avenue. There was a balance of $r,250.oo due on this in 1896. I !1ave no evidence of this balance ever having been paid, and neither the Treasurer nor the Comptroller is able to inform me. I am not able to speak with absolute certainty about it, but it is one of the many matters needing to be looked after. The gentleman who, as attorney, represented the State in Tennessee in this matter, writes me t!1at one of his partners at the time has since died and another has been elevated to the Court of Appeals, that his office and files have been destroyed, and that he can not give full information. He does remember, however, and states, that the city of Chattanooga did not pay all of the award, the reason being that the lessee company was in possession of some other street belonging to the city. 
The explanation is not entirely clear, but it will require a longer and more tedious examination of the facts than is now possible, and the matter hardly comes within the scope of the present inquiry. I call attention to it merely because it has incidentally attracted my attention and seems to warrant further inquiry. 
 
 92 
 
From 1893 to 1900 many small encroachments by private parties on the right of way were dealt wit~1, and in a large number of cases written acknowledgements were taken, the encroachers being in many cases per-  mitted to remain in possession. I have not been able to find these papers, and no officer at the Capitol is able to inform me of them. 
During the past twenty years there have been many controversies in courts concerning the rignt of way and other properties of the W. &. A. R. R., in the course of which much valuable testimony has been found, including early maps identified by witnesses then living, who served the road in its infancy. In some cases the original engineers testified. In some cases testimony was taken de bene esse. Nearly all tnese papers, maps and documents have disappeared. Many of the witnesses have since died, and the testimony can not be replaced. I hand you herewith a voluminous original report of testimony and the award of a commission in 1895 in a controversy between the State and the Central Railroad touching valuable property in Atlanta. This finding of tne commission is worth many thousands to the State, and this record is the only evidence of it. I found it in possession of private persons in Atlanta. The testimony recorded in it is of inestimable value. Unfortunately, valuable maps referred to in it can not be found. I believe the law does not specifically charge any person with the custody of these documents. 
It is greatly Ito be regretted that there is not some provision made for the systematic care of these records, and I am convinced that the losses to the State from the want of some provision on the subject have been very great. 
Respectfully submitted, 
 
June 22d, 1908. 
 
HOOPER ALEXANDER.