In the second bill the lessors seek to enforce a forfeiture of the estate conveyed by the lease, alleging that the lessees have assigned and underlet the road, and parted with its possession, in breach of covenant. No reason appears why the question of forfeiture should not be settled in the pending suit at law, or why it should be settled in chancery. Walker v. Walker,63 N.H. 321, 328. The plaintiffs also ask the appointment of a receiver to take possession of the road and run it during litigation, because of the alleged failure of the operators to keep it in suitable repair. If there were no responsible persons able and legally compellable to perform this duty, the road might be in such a ruinous and dangerous condition as to require a receiver. But the Lowell company are responsible persons, claiming to be the operators, acknowledging their duty, and compellable by process of law to do it upon their claim. It is not necessary in this case to inquire whether the Lowell or the Maine are the operators. And there is no occasion for the law to assume, through a receiver, the duty of repair which a responsible company can be legally compelled to perform.
Bill dismissed.
All concurred.
IN THE SUIT AT LAW, Boston, Concord Montreal Railroad v. Boston Maine Railroad and Boston Lowell Railroad, the writ is as follows:
The State of New Hampshire.
[L. S.] Merrimack ss.
To the Sheriff of any County or his Deputy:
We command you to summon the Boston Maine Railroad, a corporation duly established by law, and doing business at Dover in our county of Strafford (if to be found in your precinct), to appear before the supreme court, to be holden in Concord in said county of Merrimack on the first Tuesday of April next, to answer to the Boston, Concord Montreal Railroad, a corporation duly established by law, and doing business at Concord aforesaid, —
In a plea of land wherein the plaintiff demands of the defendant a certain tract of land situated in said county of Merrimack, and being that tract of land extending from a point in said Concord, through said Concord and the towns of Canterbury and Northfield, to a point in the line between said county of Merrimack and our county of Belknap, and being all the land within said county of Merrimack on which the railroad of said plaintiff corporation is located and constructed, together with said railroad and all the lands, stations, and buildings used or occupied for railroad purposes upon or along said route in connection therewith, and all right of way and easements appurtenant thereto; whereupon the *Page 414 plaintiff says that it was lawfully seized of the demanded premises with the appurtenances in its demesne as of fee within twenty years last past, and ought now to be in quiet possession thereof; but the said defendant has since unjustly entered and holds the plaintiff out.
Also, in a further plea of land, wherein the plaintiff demands of the defendant a certain tract of land, being all the land described in the first count above written, together with the railroad, right of way, buildings, and appurtenances therein described; whereupon the plaintiff complains and says that within twenty years last past it was seized of the demanded premises in its demesne as of fee, and being so seized heretofore, to wit, on the 19th day of June, 1884, it executed and delivered to the Boston Lowell Railroad corporation, a corporation existing by virtue of the laws of the commonwealth of Massachusetts, a certain indenture of that date, wherein it leased and demised to said last named corporation the land, railroad, right of way, buildings, and appurtenances aforesaid, together with other land and railroad property, for a term of ninety-nine years from and after the first day of June, 1884, reserving to itself a certain rental during said term; and wherein said last named corporation covenanted and agreed with the plaintiff, among other things, that it would not assign or underlet the premises demised as aforesaid, or part with the possession thereof, except with the written consent of the plaintiff; and further, that in case of a breach of said last named covenant and agreement, the plaintiff might enter upon and take full possession of said demised premises, and all depots, shops, buildings tracks, and other permanent property demised as aforesaid, and remove said Boston Lowell Railroad corporation and all persons claiming under it from said premises, and thereby determine the estate granted as aforesaid, using whatever force might be necessary for that purpose. And the plaintiff further says, that upon the execution and delivery of said indenture as aforesaid the plaintiff delivered to said Boston Lowell Railroad corporation said demised premises to hold under and in pursuance of said indenture, and in no other way; that thereafterwards, to wit, on the first day of November, 1887, the said Boston Lowell Railroad corporation, in violation of the covenants and agreements aforesaid to be kept and performed by it, and without the written consent of the plaintiff, and without right (all of which the defendant well knew), assigned said demised premises, including said railroad, right of way, buildings, and other appurtenances, and delivered possession of all the same to the defendant; that thereafterwards, to wit, on the eighteenth day of November, 1887, at said Concord, the plaintiff entered upon said demised premises, depots, shops, buildings, tracks, and other permanent property demised as aforesaid, for the purpose of taking full possession thereof and determining the estate granted as aforesaid; that by virtue of the *Page 415 covenants and agreements aforesaid contained in the said indenture, and the assignment by said Boston Lowell Railroad corporation to the defendant of said demised premises, and the delivery of possession of all the same to the defendant as aforesaid, and the entry by the plaintiff as aforesaid, the term and estate granted by said indenture determined and became forfeited, and the plaintiff thereupon became, and is now, entitled to the full and peaceable possession of all said demised property; but the defendant declined to yield such possession to the plaintiff, and still claims said estate and the possession of said demised premises under said indenture. Wherefore the plaintiff prays judgment establishing the determination and forfeiture of said term and estate, and for a writ of possession and other process for executing said judgment, defending its rights, and giving it the relief to which it is by law entitled.
To the damage of the said plaintiff (as it says) the sum of five hundred thousand dollars; and make return of this writ with your doings therein.
Witness: Charles Doe, Esq., the twenty-ninth day of November, Anno Domini 1887.
A. J. Shurtleff, Clerk.
June 19, 1884, the Boston, Concord Montreal Railroad executed a lease of its road, etc., to the Boston Lowell Railroad, wherein it is recited that
"Whereas, said first party has agreed to grant, and said second party has agreed to take and accept, a lease of said railroad of the first party, upon the terms and conditions hereinafter set forth:
"Now, therefore, said first party, in consideration of the rent, covenants, and agreements hereinafter mentioned, to be paid, kept, and performed by the second party, has leased and demised, and does hereby lease and demise, unto said second party the railroad of said first party, extending from Concord, New Hampshire, to Groveton Junction in said state, and the branch railroad from Wing road, so called, to the base of Mount Washington in said state, as said railroad and branch are now located and constructed, together with all the lands, stations, and buildings used or occupied by said first party for railroad purposes upon or along said route, and all the right, title, and easement of said first party in and to the lands lying within or without the limits of the location of said railroad, and the use thereof, with full right and authority to said second party to hold and use said rights, easements, and privileges as fully as said first party might or could if these presents had not been executed, a plan of which lands and location accompanies this lease, said demised premises being subject to the mortgages on the same.
"To have and to hold to said second party for and during the term of ninety-nine years from and after the first day of June, 1884, *Page 416 the said second party yielding and paying unto said first party the rent hereinafter mentioned, and keeping and performing all the covenants and agreements of said second party hereinafter Contained; but nothing herein contained is intended to operate to the prejudice of, or to qualify in any manner, the rights or franchises of said first party conferred by its charter and the laws of the state of New Hampshire, or to curtail any powers or franchise of said first party, or prevent the exercise thereof in such manner as may be necessary for the protection of the interests of its stockholders."
This lease contained the following stipulations:
"Said first party, being also in possession as lessee of the Pemigewassett Valley Railroad under a certain indenture of lease . . . does hereby make, constitute, and appoint the said second party its agent or attorney to manage and operate said railroad. . . .
"Said second party hereby covenants and agrees that it . . . will operate said leased road. . . .
"Said second party further covenants and agrees, that during the term hereby granted it will, at its own cost and expense, maintain, preserve, and keep the railroad of said first party in as good condition and repair as the same now is. . . .
"Said second party further agrees, that it will, during the term of this lease, operate said railroad and leased road. . . .
"Said second party covenants and agrees that it will not assign underlet the premises hereby demised, or part with possession thereof, except with the written consent of the first party; that it will not suffer said railroad of the first party to get out of repair or become depreciated in its general condition, except by the ordinary wear and use thereof, to be made good by renewal as aforesaid.
"And it is further covenanted and agreed by said second party, that in case of breach of any of its covenants herein contained, or in case that the estate hereby created and vested in said second party shall be taken from it by legal proceedings of any kind, or in case of default in payment of the rent above mentioned, if the same or any part thereof shall remain unpaid for a period of thirty days after becoming due and payable, and after demand in writing made therefor, then said first party may enter upon and take full possession of the premises hereby demised, and all depots, shops, buildings, tracks, and other permanent property, and remove said lessee and all persons claiming under it from said premises, and thereby determine the estate hereby granted, using whatever force may be necessary for that purpose; and said second party agrees that it will not, in such event, hinder or prevent the entry of said first party to recover the possession of said demised premises as of its former estate, and shall account for and pay over the value of the property so assigned and transferred, less such sums as may have been paid to make good the guaranty aforesaid above the twenty-five per cent." *Page 417
[COPY OF LEASE EXECUTED BY THE BOSTON LOWELL RAILROAD AND THE BOSTON MAINE RAILROAD.]
This indenture, made in duplicate this twenty-second day of June, A. D. 1887, by and between the Boston Lowell Railroad corporation, a corporation existing under and by virtue of the laws of the commonwealth of Massachusetts, party of the first part, and hereinafter denominated the "lessor," and the Boston Maine Railroad, a corporation existing under and by virtue of the laws of said commonwealth, and under and by virtue of the laws of the states of Maine and New Hampshire, party of the second part, and hereinafter denominated the "lessee," —
Witnesseth, that the said parties, each for itself, its successors and assigns, and each in consideration of the grants, covenants, and engagements herein made by the other, have granted, covenanted, and agreed, and do hereby grant, covenant, and agree, each to and with the other, and its successors and assigns, as follows, to wit:
I. The lessor doth grant, demise, and lease unto the lessee, its successors and assigns, its railroad and railroad property of every description, including therein its railroad, lands, docks, and wharves within or without said commonwealth, branches, tracks, side-tracks, road-beds, superstructure, station-houses, depot grounds, depots, viaducts, bridges, piers, shops, buildings, fixtures, engines, cars, rolling-stock, machinery, tools, furniture, telegraph apparatus, equipment, material, and supplies, and all rights, franchises, easements, privileges, and appurtenances thereto belonging, together with the right to demand and receive all tolls, rent, revenue, income, and profits of the demised premises; including also therein all the right, title, and interest of the lessor in and to any and all railroads operated by it, under lease or otherwise, so far as the same are assignable or transferable by the lessor without violation of law or of agreement, but not otherwise; and in and to any stock of other railroads owned by it, all dividends thereon, and its right of voting on the same; and in and to any bonds. obligations, and contracts of or with other railroads, corporations, or individuals, and all income or other advantages and benefits to be derived therefrom, a schedule of which stock and bonds is hereunto annexed; hereby assigning and transferring unto the lessee, subject to all legal obligations and incumbrances thereon, all its railroad, railroad property, franchises, and assets of every description, except as above stated.
To have and to hold all and singular the demised premises to the lessee, its successors and assigns, for and during the term of ninety-nine years from and after the first day of April, A. D. 1887, the said lessee keeping and performing the covenants herein contained on its part to be kept and performed, and yielding and paying rent for the said premises to the amount and in the manner following, to wit: *Page 418
1. The lessee shall pay all operating expenses of the lessor, and of all railroads of which it shall come into possession, or which it shall operate under and by virtue of this instrument, there being included therein, as part thereof, all repairs and renewals; all expenditures arising out of any contract, obligation, business, negligence, or misfeasance, or however otherwise arising, and whether the liability for the same now exists, or be hereafter created in any way connected with the use and operation of the demised premises, or of railroads operated by the lessee or lessor, as herein provided, and including damages to persons or property, insurance, all taxes of every description, federal, state, and municipal, upon property, business, franchises, or capital stock; all expenses consequent upon or incidental to the renewal or refunding of the lessor's indebtedness, or that of any road owned, leased, or operated by it; any expenditures hereinafter declared to be operating expenses; and the organization expenses of the lessor, for which, in addition to sufficient office accommodations to be furnished by the lessee at the present station of the lessor in Boston, or at such station as shall be erected in its place, there shall be paid to the lessor, at the end of each successive three months during the term of this lease, the sum of seventeen hundred and fifty dollars ($1,750).
2. The lessee shall pay, as the same become due, the rentals of all railroads of which it shall come into possession, or which it shall operate under and by virtue of this instrument, during the continuance of this lease, and of all roads leased to this lessor according to the terms of the several leases, and the interest on the indebtedness of the lessor and on the indebtedness of all roads leased or operated by the lessor which this lessor is under obligation to pay, a schedule whereof is hereto annexed, and upon such future indebtedness as shall be created for the purposes herein provided, and to that end shall pay to the lessor such sums of money at such times as shall enable it to punctually meet the interest on such indebtedness as the same matures. The lessee shall assume and pay the current expenses and indebtedness upon open account of the lessor outstanding at the date of this lease, and the same shall be accounted for and reimbursed to the lessee at the termination of this lease. The lessor shall turn over to the lessee all cash on hand, outstanding bills, notes, and accounts receivable, and all sums received thereon; and all such cash on hand shall be accounted for and paid over to the lessor without interest, at the termination of this lease.
3. The lessee shall pay to the lessor, on the first day of July, A. D. 1887, the sum of one hundred and ninety-three thousand five hundred and twenty-nine dollars ($193,529), being three and one half per cent. (3 1/2 per cent.) upon its now existing capital stock; shall pay to the lessor the same sum on the first days of every succeeding January and July until and including the first day of January, A. D. 1897; shall thereafter, on the first days of every succeeding *Page 419 July and January, during the term of this lease, pay to the lessor the sum of two hundred and twenty-one thousand one hundred and seventy-six dollars ($221,176), being four per cent. (4 per cent.) on its now existing capital stock; and for any portion of any half year, the rent for which remains unpaid at the expiration or earlier termination of this lease, shall pay the lessor rent pro rata, at the rate in force at the time of such termination; provided, also, that from and after any increase of the lessor's capital stock, as herein provided, the semi-annual payments, to be made as above, shall be increased so that each payment shall be of an amount equal to three and one half per cent. (3 1/2 per cent.), if before July 1, A. D. 1897, and to four per cent. (4 per cent.) on and after July 1, A. D. 1897, upon all the lessor's capital stock issued and outstanding at the time of such payment.
II. The lessor covenants that, if it be found impracticable to at once deliver immediate possession of any railroad leased or operated by it at the inception of this lease, by reason of any agreement to the contrary, or other reason, it will use all reasonable efforts to deliver, and will deliver, possession thereof as soon as practicable. The lessor shall, meanwhile, continue in the possession of such railroad, and, under the direction of the lessee in all respects, shall continue to use and operate the same under its contract with the company owning the same, and to pay the rental or other consideration agreed to be paid for the use of the same, and to receive the earnings thereof; but shall immediately transfer and pay over all such earnings to the lessee to its own use, which, in consideration thereof, shall reimburse the lessor for all expenditures, and indemnify and hold it harmless against all costs, claims, and liabilities arising out of the lessor's possession and operation of said railroad, or under and by virtue of its lease or other contract for operating the same.
III. The lessee shall assume all traffic balances due from the lessor to other railroads or transportation companies; shall assume all contracts of the lessor for equipment, supplies, and material and all other contracts and liabilities of the lessor to and with individuals or corporations, expressed or implied (its contracts with the holders of its indebtedness as scheduled excepted); and shall assume and defend all suits against the lessor arising out of or in any way connected with the past or future use and operation of the demised premises and roads, or roads hereafter received or operated by the lessee or the lessor, as herein provided, and pay all judgments obtained thereon.
IV. The lessee shall pay the interest upon any portion of the indebtedness of the lessor, or of its leased or operated lines, that shall be renewed or extended during the term of this lease, in like manner as upon the same indebtedness before renewal or extension; and, in case the lessee shall take up or purchase, and enforce by foreclosure or otherwise, any indebtedness of any of the *Page 420 said leased or operated lines which shall not be so renewed or extended, the securities so taken up or purchased, and all title, benefit, or advantage of the enforcement thereof, shall enure to the lessor at the termination of this lease upon its reimbursing to the lessee all sums paid and expenses incurred in so taking up, purchasing, and enforcing the same.
If the lessor shall be duly authorized to construct, complete, and equip the main line of the Central Massachusetts Railroad Company, and to construct a branch or extension thereof between Palmer and Holyoke, as provided in the lease of said Central Massachusetts Railroad Company to the lessor, and to issue its bonds to meet the cost of such completion, equipment, and construction, the lessor shall, under the direction of the lessee, construct, complete, and equip said main line, and construct, complete, and equip said branch, as provided by said lease, and issue its bonds to meet the cost thereof. Said road and branch, as fast as it is completed and equipped, shall pass to the lessee by this indenture, if the Central Massachusetts Railroad Company shall consent to the assignment of its lease, or, in default of such consent, and until the same be given, the same shall be operated by the lessor upon the same terms and conditions as above provided in article II of this indenture, as to the other railroads whereof the lessor is unable to deliver immediate possession; and the lessee shall be subject to the same duties and liabilities in relation thereto as in relation to other roads leased to the lessor, and shall pay the interest upon said bonds, and perform, or cause to be performed, the agreements contained in said lease to be performed by this lessor. If the lessor shall be duly authorized to buy the property and franchises of the Mystic River corporation, the Ocean Terminal Railroad Company, and the Ocean Terminal Railroad Dock and Elevator Company, the lessor shall issue its bonds or stock to an amount sufficient to pay for such properties and franchises, and for such improvements on the real estate of said companies and the property of the lessor on Mystic river as the lessee may deem necessary and proper to fit the same for the efficient and convenient transaction of business. The lessor shall issue its stock or bonds without delay for the funding of its existing floating indebtedness, to wit, all its indebtedness represented by notes payable, including notes given the Nashua Lowell Railroad corporation if the same can be so funded, but not its current debts or open accounts. If, with the assent of the directors of the lessor, or after a decision of the railroad commissioners that the same are necessary and proper, as provided in Article VII hereof, the lessee shall make permanent additions to or improvements upon the demised premises, the lessor shall also issue stock or bonds to an amount sufficient to meet the cost thereof. In all the cases herein provided for in which stock or bonds is or are to be issued by the lessor, the lessor shall issue both or either class of securities, as *Page 421 the lessee may request, but in each case only so far as it may legally do so: provided, however, that if the lessor shall require additional legislative authority to enable it to issue either class of securities, as desired by the lessee, the lessor shall, at the request and expense of the lessee, do all acts and things necessary to procure such authority. Stock so issued, as herein provided, after the inception of this lease, shall, from the time of such issue, be deemed part of the lessor's capital stock, within the provisions of clause 3 of Article I of this lease. Bonds so issued, as herein provided, after the inception of this lease, shall be scheduled and the interest thereon paid as part of the lessor's indebtedness, under and pursuant to clause 2 of Article I hereof. The indebtedness of said lessor, as scheduled, shall be renewed by the lessor with the aid of the lessee as the same matures; and the whole, or any part thereof, shall, at the request and under the direction of the lessee, be refunded at such time or times as may be practicable, at the lowest rate of interest practicable, any benefits from reduced rates of interest consequent upon such renewal or refunding of the indebtedness of the lessor or of any of its leased or operated lines to enure to the lessee. The term of such renewal shall not extend beyond the term of this lease without the consent of the lessor.
V. Leases and contracts of the lessor for the operation of other railroads terminating during the term of this lease shall be renewed by the lessor, under the direction and with the assent of the lessee, upon the most favorable terms practicable. But the said lessee shall not be bound to assent to the renewal of such lease or contract at a rental exceeding the rental payable at the inception of this lease, unless upon application by the lessor to the board of railroad commissioners said renewal shall be decided to be necessary to the reasonable protection of the interests of the lessor. Leases and contracts so renewed shall be subject to all the provisions of this lease as effectually as if now existing and herein included, and, upon the expiration or earlier determination of this lease, shall be reassigned to, and enure to the benefit of, the lessor. The lessor shall also make and execute such other leases or operating contracts with other railroad companies as the lessee may request, every such lease or contract, however, if the lessor shall so elect, by its terms to expire at or before the expiration of the term of the lease created by these presents, and all obligations and liabilities arising therefrom to be assumed and sustained exclusively by the lessee, and the lessor shall be held harmless from any loss arising therefrom. The lessee agrees that any lease or operating contract hereafter made with any railroad or railroad company or corporation mentioned in chapter 459 of the Acts of the Commonwealth of Massachusetts for the year 1869, with the exception of the Manchester Lawrence, or with the Addison, Burlington Lamoille, Consolidated Vermont, Central Vermont, *Page 422 St. Johnsbury Lake Champlain, Lamoille Valley Extension, Manchester Keene, Missisquoi, Nashua, Acton Boston, Cheshire, Montpelier Wells River, Montpelier White River, South-Eastern, Mt. Washington, New London Northern, Newport Richford, Peterborough Hillsborough, Peterborough, Profile Franconia Notch, Brattleborough Whitehall, Southern Vermont, Vermont Valley, Whitefield Jefferson, Massawippi Valley, Woodstock, or Central Massachusetts Railroad, or any of them, or with any blanch or extension of any such railroads, shall be made or executed with the lessor and not with the lessee or any person or corporation acting in its behalf, such lease or contract, at the expiration or earlier determination of this lease, to enure to the benefit of the lessor.
VI. The lessee shall have the right of voting on all stock owned by the lessor in other railroads or corporations, except as hereinafter provided, and said stock shall not be sold or otherwise disposed of by the lessee, nor by the lessor except with the assent of the lessee.
The shares of stock of the lessor in the St. Johnsbury Lake Champlain Railroad Company shall be voted by the lessee so as to promote the interests of that corporation and of the lessor's system of roads, and so as to keep the road of that company in as good condition and repair as the same are now in, and, on all questions of increase of capital, of transferring the possession or operation of its road by lease or operating contract, or of the sale of its road to any other company, or of consolidation with any other company, shall be voted by the lessee only with the assent of the lessor manifested by vote of its directors. That the interest charges of the St. Johnsbury Lake Champlain Railroad company may be reduced to the lowest practicable point, the lessee's voting power may be used at its discretion to extend, renew, or refund said indebtedness or any part thereof; to foreclose any existing mortgage of the company's property; to make any new mortgage thereof; to reorganize said company; and to do all other acts and things necessary and proper for the reduction of its fixed charges, and consistent with the preservation, unimpaired, of the lessor's interest in said company as herein demised: provided, however, that the lessee hereby guarantees to the lessor the preservation, unimpaired, of its interest in and control of said St. Johnsbury Lake Champlain Railroad Company as herein demised, and, at the expiration or earlier termination of this lease, will return to the lessor either the stock, debt, and bonds hereby demised, or other stock, debt, and bonds giving the same interest in, and conferring the same control of, the St. Johnsbury Lake Champlain Railroad Company as the securities herein demised.
VII. The lessee shall have the right to make such changes in passenger stations, tracks, and terminal grounds in Boston and elsewhere, and to establish such union stations, and to make such *Page 423 separations of railroad grade-crossings as the safety and accommodation of the public and the convenient and economical transaction of business may, in its judgment, require: provided, however, that at the expiration or earlier termination of this lease the lessor's stations, tracks, and terminal grounds shall be returned to it in as good order and repair as the same are now in, and so that the same shall be equally well fitted for the independent use and operation of its own road or its leased roads by the lessor.
The lessee shall have the right to make permanent additions to and improvements upon the demised premises, which shall include any increase in track mileage, buildings, structures, and bridges additional to those existing at the inception of this lease, and buildings, structures, and bridges replacing those existing at the inception of this lease, so far as the cost of such new buildings, structures, and bridges exceeds the cost of restoring such old buildings, structures, and bridges to as good a condition as when new. Such permanent additions and improvements shall, if assented to by the lessor or decided by the railroad commissioners to be necessary and proper, be paid for by the lessor so far as it has or can procure the power to do so in the manner provided in Article IV of this lease; otherwise shall be paid for by the lessor at the expiration or earlier termination of this lease, in the manner hereinafter provided.
VIII. The said lessee shall, at its own expense, maintain and keep the demised premises, and all the property and fixtures of every description which it shall receive or operate under this lease, in as good order and condition as the same now are or shall be when received by the lessee, so that there shall be no depreciation in the same or any part thereof; and, at the expiration or earlier termination of this lease, shall return the same to the lessor in the same good order and condition, and shall put the lessor in possession of all its leased roads and property at said time operated by said lessee or said lessor under this indenture. The lessee shall use and operate the railroads and properties herein demised, in accordance with the charter of the lessor and of the several corporations whose roads are so operated, and the laws of the commonwealth of Massachusetts and of the states of New Hampshire and Vermont and of the United States, so far as the same are respectively applicable; shall furnish all cars, engines, rolling-stock, and equipment of every description required, in addition to the like property hereby demised, for the due operation of the railroads operated under and by virtue of this lease; shall observe and perform all the provisions of contracts of the lessor with railroads now leased or operated by it, or which may be leased or operated by it, under the provisions of this indenture; shall keep the demised premises reasonably insured, and shall apply the proceeds of any insurance to restoring and replacing the property destroyed, or to making permanent improvements, not in the nature of ordinary *Page 424 repairs, upon the demised premises; shall apply the proceeds of the rolling-stock, equipment, and other personal property herein demised, which it may deem advisable to sell, and which it is hereby authorized to sell at its discretion, so as to substitute therefor like property of equal value; shall replace buildings or structures on the demised premises taken down or removed, and which the lessee is hereby authorized to take down or remove at its discretion, with other buildings, structures, or permanent improvements upon the demised premises, of equal value, and equally convenient for the use of the lessor should this lease be terminated; shall furnish the directors and treasurer of the lessor with free annual passes over all the railroads operated by or for the lessee; shall permit the demised premises to be inspected annually by the lessor's directors and by some competent person appointed by the lessor, who shall report to the lessor the condition of said premises, and shall, for the purpose of such inspection, be furnished with free transportation over the railroads operated by the lessee under this lease, and shall receive a reasonable compensation for his services, to be paid as part of the lessor's operating expenses; shall make all returns required by law, and shall furnish the lessor with such abstracts of accounts as shall enable it to make all returns required of the lessor; shall not assign this lease nor underlet the premises, or any part thereof except such portions thereof as in the judgment of the lessee may not be required for railroad uses, without the written assent of the lessor first had and obtained; and shall cause all rolling-stock hereby demised, and all rolling-stock substituted for that herein demised and added thereto, to be distinguished by appropriate names, numbers, or letters; and at the end of the term of this lease, or at any earlier termination thereof from any cause whatever, shall surrender the real and personal estate now or hereafter demised, as aforesaid, to be ascertained and determined according to the inventory hereinafter provided for, in the like good order and condition in which they are at the inception of this lease or when received by the lessee, or may be put during the term, with all improvements thereon or additions thereto, the amount of money, materials, and supplies to be surrendered or accounted for to the lessor to be equivalent in value to the amount on hand at the inception of this lease, as shown by said inventory, and all stocks, bonds, and securities, or any bonds or securities substituted therefor under the provisions of this indenture, to be returned at the expiration or other earlier termination of this lease: provided, that at the expiration or earlier termination of this lease the lessor shall pay to the lessee the value of any permanent improvements and additions not already paid for by the lessor, the said value to be determined, unless agreed upon by the parties, by the board of arbitrators provided for in the twelfth article of this lease.
IX. That the property herein demised and to be accounted for *Page 425 at the expiration or earlier termination of this lease may be accurately determined, there shall be made, as of the day when this lease takes effect, a full, complete, and particular inventory, description, and appraisal of all estate and property, real and personal, belonging to the lessor and coming into the possession of the lessee by virtue of this lease; and to this, from time to time, shall be added such other estate and property as shall come into the possession of the lessee under the terms of this lease. Such inventory, description, and appraisal, and the additions thereto from time to time, shall be made by two competent persons — one selected by each party; in case of their disagreement, they shall refer the matter in difference to some third person, whose decision shall be final. Such inventory, description, and appraisal shall be made in duplicate, and an original furnished to each party; and shall be evidence of the nature, value, and condition of the property demised at the inception of this lease, or at the time of the additions thereto in all cases in which any question of such nature, condition, or value may arise.
X. The lessor shall maintain its existence and organization as a corporation, and to that end shall comply with all the requisites and forms of law; shall do all acts and things, and execute all legal instruments necessary and proper to put and secure the lessee in the full enjoyment of all the property, rights, franchises, and interests herein demised, and to carry into effect the true intent and meaning of this lease; and shall not increase its capital stock, as now existing and issued, without the assent of the lessee, except as provided in this lease. To further secure the lessee in the beneficial enjoyment of the property, franchises, rights, and privileges herein demised and specified, the lessor constitutes the lessee its attorney irrevocable, with full right and power, at the lessee's expense, to use the name of the lessor in all legal proceedings, and in all cases needful for obtaining, holding, and enjoying the premises herein demised and specified, and for all purposes consistent with the true scope and intent of this instrument.
XI. This lease is upon the condition that if the lessee shall at any time fail to make the lessor, as part of the rent herein reserved, the payments herein stipulated to be made to it to enable it to pay the interest on its indebtedness, or shall fail for thirty days to make any semi-annual payment, as stipulated for in clause 3 of Article I hereof, then and in such case the lessor may at once enter upon the demised premises, and upon any part thereof, as for the whole, and expel the lessee, and determine the estate hereby granted, and shall thereupon become seized and possessed of the demised premises, and of all premises then in possession of the lessee or the lessor under this indenture, and of every part thereof in its original right, and as if this lease had never been made; and upon the further condition, that if the lessee shall fail to perform any other of the covenants and agreements in this lease contained, *Page 426 and such failure shall continue for six months after written notice of such failure from the directors of the lessor, the lessor shall have the like right to enter and expel the lessee, and revest in itself its former estate in the demised premises, and all premises then in possession of the lessee or the lessor under this indenture, and every part thereof: provided, however, that such entry by the lessor for breach of condition shall in no wise prejudice or impair any remedies to which it might otherwise be entitled for arrears of rent or preceding breach of covenants, or any other rights secured by this lease in case of its termination before the expiration of the time thereof.
XII. In case of any disagreement between the parties hereto as to the true intent and meaning of this lease, or any part thereof, or as to anything done under and by virtue of it, or growing out of it, the matter in controversy shall be referred by written submission to the arbitration of referees to be chosen in the manner following: One shall be chosen by each of the parties hereto; or if either shall unreasonably fail or neglect to appoint a referee when requested by the other, the board of railroad commissioners may, after due notice to the party so failing or neglecting, appoint a referee. The third shall be selected by the two so chosen. The arbitrators shall hear the parties, after due notice to each of them, and if either party fails to attend after such notice, may proceed ex parte. The award in writing of said arbitrators, or a majority of them, being duly notified to the parties, shall be final and conclusive upon them.
In testimony whereof, the said parties, by their respective presidents and treasurers, thereunto duly authorized, have caused their corporate seals to be hereto affixed, and these presents to be executed the day and year first above written.
November 18, 1887, Mr. E. H. Rollins, president of the Boston Concord Montreal Railroad, entered upon the track of said railroad at Concord, N.H., and made the following proclamation:
"By authority, and in behalf of the Boston, Concord Montreal Railroad, I enter upon and take possession of the railroad of said corporation, extending from Concord, New Hampshire, to Groveton Junction, and the branch railroad from Wing Road, so called, to the base of Mt. Washington, together with all the lands, stations, and buildings used or occupied by said corporation for railroad purposes upon or along said route, and all the right, title, and easement of said corporation in and to the lands lying within and without the lines of the location of said railroad, and all depots, shops, buildings, tracks, and all other property, rights, easements, or franchises attempted to be leased by said corporation to the Boston Lowell Railroad corporation by the pretended lease dated June 19, 1884.
"This entry is made because of the breach of the covenant in *Page 427 said pretended lease whereby the Boston Lowell Railroad corporation covenanted that it would not assign or underlet the premises demised by said lease, or part with the possession therein, without the written consent of the Boston, Concord Montreal Railroad.
"It is made in pursuance of the covenants of said pretended lease, and for the purpose of determining the estate, if any, granted thereby."
W. A. Stowell, superintendent of the Boston Lowell Railroad, White Mountains Division, who was present, said, —
"As superintendent of the Boston Lowell Railroad, White Mountains Division, I decline to surrender the road or any of its property, and hereby order you off the premises, and shall use such force as may be necessary to expel you unless you depart in peace."
The Boston Lowell Railroad executed by its then attorney the following agreement, and delivered the same to said E. H. Rollins:
"The Boston Lowell Railroad, denying that the Boston, Concord Montreal Railroad has any right of entry upon the premises leased by the Boston, Concord Montreal Railroad to the Boston Lowell Railroad, or that any condition of said lease has been broken, agrees that said Boston, Concord Montreal Railroad has made an entry this day upon said leased premises, and for breach of condition, which is sufficient in point of form.
Concord, N.H., Nov. 18, 1887. Boston Lowell Railroad, By its attorney, Charles H. Burns."
The Boston Maine Railroad, by its attorney, Charles H. Burns, gave said Rollins then and there the following agreement:
"The Boston Maine Railroad, denying that it has any possession of the leased premises referred to in the foregoing agreement, assents to said agreement, and will be bound by the same in any suit against the Boston Maine Railroad.
Concord, N.H., Nov. 18, 1887. The Boston Maine Railroad, By its attorney, Charles H. Burns."