quired for strictly railroad uses, whether situated within or without the original location; that the word "required" should be read as "fairly required;" and that the hotel was not thus required for railroad purposes, as was conclusively proved by the fact that the railroad people had rented it to be run substantially as the lessors must run it, if they took it.

This is a bill in equity brought by Ebenezer S. Coe and David Pingree, trustees, against Walter Aiken, the Boston, Concord & Montreal Railroad Company, the Mt. Washington Railway Company, and the Concord & Montreal Railroad Company for specific performance of a contract, and the setting aside of a railroad location, and for an injunction to restrain the defendants from maintaining an hotel on Mt. Washington. See 50 Fed. 637, 640.

The complainants allege that they were owners of the land covering the summit of Mt. Washington; that on the 1st day of July, 1872, the Jackson Iron Manufacturing Company, then the owners of the summit, executed a lease to the Mt. Washington Railway Company of the land included within a circle of the radius of 100 rods in length, extending from the central point of the end of the Mt. Washington railway on the summit; that the lease was given with the view that the railway company should erect an hotel upon the summit, or permit some person to erect one, reserving to the lessors the right at the expiration of the term of the lease to purchase whatever buildings and improvements then should be on the premises, including that portion of said buildings that should be within the limits of the railroad as located, except such parts of said buildings and improvements as might be required by said railroad company "for the proper and convenient use of its road, and for its engines, cars, and repairs," at their original cost, and, relying upon the performance of said agreement, the iron manufacturing company permitted the hotel to be erected upon the premises thus leased; that the hotel was in fact built by Walter Aiken and the Boston, Concord & Montreal Railroad, and mainly located upon the location of the Mt. Washington Railway Company upon, the summit of the mountain, but some portion of it being outside of that location, and upon the leased premises. Before the expiration of the said first lease, the title to the summit was transferred from the Jackson Iron Manufacturing Company to the complainants, as trustees of the estate of David Pingree, deceased, who, applying for statement of the cost of hotel, received from Aiken and the Boston, Concord & Montreal Railroad a statement of cost amounting to $70,000, which complainants believe much larger than the actual cost, and made fraudulently and purposely to prevent complainants taking the hotel, and to enable the owners to retain it for another five years. On the 26th day of October, 1877, the complainants executed a second lease to the Mt. Washington Railway Company, with substantially the same provisions as to the conveyance of the buildings to the lessors as were contained in the first lease, except that they were to be conveyed to them at an appraisal. The bill alleges that under this second lease an attempted appraisal was made, but defendant Aiken objected to the appraisal being made, on the ground that he and the Boston, Concord & Montreal Railroad were the owners of the hotel and furniture, and were not bound by the contracts contained in the lease; that on the 9th day of May, 1883, the complainants executed a third lease to the Mt. Washington Railway Company for the term of five years from the 1st day of November, 1882, of the same premises as were described in the other leases, and with the same provision as to the conveyance of the buildings, furniture, fixtures, and improvements at the termination of the lease, the value of said property to be determined by the parties, and, if they could not agree, then to be determined by an appraisal by three disinterested parties to be agreed upon, or, in case they could not agree, the appraisers were to be appointed by the chief justice of the supreme court of New Hampshire upon the application of either party, and in this last lease it was agreed that no new or additional buildings should be erected by the lessees upon the premises without the consent of the lessor. The defendants Aiken and the Boston, Concord & Montreal Railroad were parties to this lease, and by the

lease it was provided that, in case the plaintiffs should desire to purchase the property referred to at the expiration of the lease, the Mt. Washington Railway Company should have the right to include in the sale all rights, titles, and interest of said Aiken and the Boston, Concord & Montreal Railroad, or either of them, as owners, and make proper and sufficient conveyance thereof to the plaintiffs, with the understanding that the Mt. Washington Railway Company should account to Aiken and the Boston, Concord & Montreal Railroad, respectively, for the value of their rights in the property so sold and conveyed, and that each party should execute such further instruments as might be necessary and proper to carry into full effect the intent and meaning of said indenture. In the lease, the Mt. Washington Railway Company agreed with the plaintiffs that they might use the buildings and improvements, wherever they were located and built, for the same purposes and uses as they had been used and occupied, for the term of five years after the expiration of the lease, and that, at the expiration of said five years, the plaintiffs might remove the improvements and buildings from said railroad location for their own use and control, and manage the business therein in a proper manner so as to furnish good accommodation therein to the public, or that they would cause the same to be done. Under the provisions of the last lease, Mr. Aiken, by permission of the plaintiffs, built an addition to the hotel outside of the railroad location, and on the leased premises. On the date of the expiration of the last lease, the complainants applied to the railway, Mr. Aiken, and the Boston, Concord & Montreal Railroad for an appraisal of the property; thereupon they were served with notice in the name of the railway company that the company needed the buildings for railroad purposes. The original location of the Mt. Washington Railway Company was made in 1869, and in 1889 the railroad commissioners of New Hampshire made an additional location which covered the whole site of the Summit House and addition which the complainants claimed to have conveyed to them under the terms of the last lease, and of such form and extent as to render the remaining land on the summit of no value for the erection of an hotel thereon; and the present hotel is maintained by the railway company without right or authority, and it has forfeited all right to the land so devoted by them. Said additional location was defective on the ground that the return made by the commissioners did not correspond with the monuments fixed upon the ground, or with the monuments described in the commissioners' return; and the additional location was made for the purpose of avoiding the performance of the contract, and was not for the legitimate and proper use of the railway company, but was intended for the use and purposes of Mr. Aiken and the Concord & Montreal Railroad, who were then the owners of the interest of the Boston, Concord & Montreal Railroad in the hotel, to enable them to maintain the hotel for their own use, the original railroad location upon the summit being sufficient for all the legitimate uses of the railroad. After the expiration of the last lease, November 1, 1887, the Mt. Washington Railway Company paid the rental to the plaintiffs for two years, and, immediately after the filing of the additional location, Mr. Aiken notified the plaintiffs that he should not continue to pay rent. Since that date Aiken and the Concord & Montreal Railroad have leased the hotel at an annual rental of $9,000 a year.

The bill further alleges, in substance, that the railroad was a unique thing, built with a cog rail for the purpose of carrying sightseers from the base to the summit of the mountain, and was not such a railroad as would entitle the railroad company to take property of an individual, under the right of eminent domain, for the public use. The bill prays for the specific performance of the contract to assign and convey the hotel to the plaintiffs, and that there should be a portion or all of said additional location set aside and assigned to them as would give them a convenient and proper site upon the summit for the hotel when assigned to them, and also that said additional location should be set aside on account of its not being authorized, and on account of its having been used and appropriated to improper use as alleged in the bill; and the bill further prays that Aiken and the Concord & Montreal Railroad should account for the rental of the hotel after the time they refused to pay the ground rent, and that the defendants be perpetually enjoined from using any part of the land on the summit for hotel purposes.

The answer admits the original location of the Mt. Washington Railway Company under an act of the legislature of the state of New Hampshire in the year 1869, but denies that said location included any land upon the summit for side tracks, wood sheds, repair shops, engine, car, and freight houses, turntables, and depot purposes, or that said original location was ever sufficient for the proper uses of the railway company. It admits the execution of the several leases set out in the bill, but denies that they were executed for the purposes claimed in the bill. It alleges that, immediately upon the first location of the road, it became manifest that, for the security of travelers to the summit, it was necessary that a suitable building should be erected for a railroad station, and to afford shelter to passengers upon the summit of the mountain, and that the railway company negotiated with Mr. Aiken and Mr. Lyon, president of the Boston, Concord & Montreal Railroad, to erect a railroad station, which station should contain facilities for lodging and caring for travelers, and that it was within the legal powers of the railway company to cause said building to be erected for those purposes; that Aiken and the Boston, Concord & Montreal Railroad procured the lease from the Jackson Iron Manufacturing Company, and made the addition to the original building upon the land so leased, and that Aiken and the Boston, Concord & Montreal Railroad ever since furnished to the Mt. Washington Railway Company adequate station facilities in the building, and accommodations for lodging and board of travelers and employes; that all the indentures between the plaintiffs and defendants were subject to the rights and interest of the railway company in the land included within the original location, and that - all buildings upon the summit required for the proper and convenient use of the railway were, by the terms of the indenture, exempted from sale or transfer to, or ownership or occupation by, the complainants, and by force of these provisions the complainants are not entitled to any decree for the sale and transfer of said buildings to them so long as the same are required by the railway for its station, or a place to lodge and board its employes, and for a refuge for its passengers; that, on account of the increased business of the railroad, the railroad company made an additional location, which was filed in the office of the secretary of state, and afterwards the complainants applied to the railroad commissioners for a change of the location and, upon hearing before the commissioners, they did cut off, restrict, and diminish the additional location that was made by the railway company, and set out a less quantity of land by metes and bounds to the railway company for its location for side tracks, wood sheds, repair shops, etc.; that, upon further proceeding, the railroad commissioners appraised the damages to the complainants for the land thus taken. They allege that the railroad commissioners are a judicial tribunal established by the laws of the state, and have final jurisdiction for the purpose of annulling or varying a location made by the railroad company, and that the railway company has paid the damages assessed by the commissioners, and claim that the railroad commissioners' location of said additional land was final and conclusive; that said location was not detrimental to complainants' other land beyond the ordinary results of such taking; that the railway company has done nothing by which they have forfeited any rights to the land occupied by them for railroad purposes, or that the additional location is defective or illegal, and they claim that a railroad of the construction of this one is for a railroad of public utility and use, and is entitled to hold land under the power of eminent domain.

Henry Heywood, Oliver E. Branch, Harry Sargent, and Everett Fletcher, for complainants.

On the question of specific performance, the complainants claim that the last lease contained a complete contract in writing signed by all the parties, and in every respect sufficient to comply with the requirements of the statute of frauds; that the provisions of the lease, taken in connection with the evidence, which is always admitted in determining the subject-matter of a contract and in giving an interpretation of a written instrument, shows a full and complete contract on the part of the Mt. Washington Railway Company and Aiken and the Boston, Concord & Montreal Railroad, to whose interest the Concord & Montreal Railroad has succeeded, for the conveyance of the

house and furniture and the laundry and fixtures, as they are all included in the last lease. The exception made in the contract of "such parts of the buildings and improvements within said limits as may be required by said second party (the railway company) for the proper and convenient use of its road, and for its engines, cars, and repairs," has reference to the rights given by the statutes of New Hampshire to the railway company to take land of an individual for railroad purposes; those rights being specified by statute to take land for the roadbed, with necessary additions for excavations and embankments, and such lands as may be necessary for yards, side tracks, wood sheds, repair shops, turntables, gravel pits, engine, car, and freight houses and depots, and for making provisions to supply their buildings and engines with water; that the provisions of the lease in relation to the rights of the complainants to keep the buildings upon the railroad location for such purposes as they had heretofore been used and occupied show that the contract applied to the hotel, and not to railroad buildings; and, also, the provisions in relation to making additions with the assent of the owners, and that Mr. Aiken did make an addition under that provision to the hotel, show that the hotel was the subject-matter of the contract. That the additional location was irregular and void, the complainants rely upon Green's Brice, Ultra Vires, p. 395, note a; State v. Jersey City, 25 N. J. Law, 309; Cassidy v. Railroad Co., 45 Me. 263; Railroad Co. v. Smith, 78 Ill. 96; Platt v. Bright, 29 N. J. Eq. 129; Hazen v. Railroad Co., 2 Gray, 574; Vail v. Railroad Co., 21 N. J. Law, 189; Strang v. Railroad Co., 16 Wis. 666; Railroad Co. v. Munson, 57 Mich. 42, 23 N. W. 455; Railroad Co. v. Wallace, 14 Pa. St. 245; Railroad Co. v. Bruner, 55 Pa. St. 318; Railroad Co. v. Porter, 29 Pa. St. 165; In re New York C. & H. R. R. Co., 90 N. Y. 342. That a railroad of this description was not such a public use as would authorize the acquiring of land by the power of eminent domain, the complainants rely largely upon the case of In re Niagara Falls & W. Ry. Co., 108 N. Y. 375, 15 N. E. 429; St. Joseph Terminal R. Co. v. Hannibal & St. J. R. Co., 94 Mo. 535, 6 S. W. 691; Aldridge v. Spears, 101 Mo. 400, 14 S. W. 118; In re Eureka Basin Warehouse & Manuf'g Co., 96 N. Y. 42. That the court might decree for restitution of unnecessary land taken by the railroad commissioners, the plaintiffs rely upon Dodd v. Railroad Co., 33 Law T. 311; People v. Pittsburgh R. Co., 53 Cal. 694; Edgewood Ry. Co.'s Appeal, 79 Pa. St. 257; Central R. Co. v. Pennsylvania R. Co., 31 N. J. Eq. 475. And that the court had power to set aside and make restitution of such lands as the railroad company did not use, they refer to Neimeyer v. Railroad Co., 43 Ark. 111; Central R. Co. v. Pennsylvania R. Co., 31 N. J. Eq. 475; Webb v. Railway Co., 4 Mylne & C. 119; Eversfield v. Railway Co., 3 De Gex & J. 285.

E. B. S. Sanborn and Frank S. Streeter, for defendants.

1. The plaintiffs, by contract or otherwise, have no right to purchase the Summit House and fixtures.

2. The present site of the Summit House, being the railway company's original location, cannot be taken by the plaintiffs or assigned to them by the court.

3. The additional location was legally made, and cannot be annulled, in whole or in part, by any just order of court.

4. The plaintiffs are not entitled to an accounting.

5. The maintenance of the Summit House by the railway company has been and is within the lawful powers of the company, and its further maintenance cannot properly be enjoined.

6. The plaintiffs are estopped from claiming that the railway company may not maintain the Summit House as heretofore.

We deny that the Summit House of Mt. Washington is in Sargent's purchase, but, from the testimony of plaintiffs' counsel, and the deeds put into the case, we are obliged to admit that the plaintiffs have a paper title to the summit, which they bought in 1867 of one Aurin N. Chase, whom the plaintiffs hired to procure the passage of a resolution through the New Hampshire legislature for the sale of state's land, whereby they intended to procure, and did procure, for the sum aforesaid this paper title. Whether this title was obtained by the plaintiffs under such circumstances as to divest the state of

New Hampshire of its title to the summit of Mt. Washington and preclude the state from now asserting its right thereto is not properly before this court. That question is for the state authorities. The respondents cannot controvert in this proceeding the plaintiffs' paper title.

*

I. The plaintiffs, by contract or otherwise, have no right to purchase the Summit House and fixtures. Plaintiffs' right of purchase, if it exists, must be found from the following language in the lease of May 9, 1883: "And if. at the termination of this lease, said first party shall desire to purchase whatever buildings, together with the fixtures and furniture therein, and improvements which may have been made and shall then be on said premises, including also those portions thereof which may be within the limits of the aforesaid road of the second party, excepting such parts of said buildings and improvements within said limits as may be required by said second party for the proper and convenient use of its road, and for its engines, cars, and repairs, the second party shall sell the same to said first party at the value thereof," etc. The plaintiffs' leases did not cover the land on the summit included within the railway location. At the time the last lease was made, the Summit House was the only building inside of the location. By the terms of the lease, the plaintiffs reserved the unqualified right to purchase whatever buildings and improvements may have been made and shall then be on said premises. By the "premises" they meant the leased premises outside of the railway location, and they reserved the unconditional right to buy at their cost whatever buildings lessees might erect during the term outside the original location. Having thus settled the question of the plaintiffs' right of purchase of buildings on the leased lands (outside the railway location), they then dealt with the question of reserving a right of purchasing buildings which the railway company might erect on its own land (within the location), and as to these buildings the railway company did not give, nor did the plaintiffs take, an unconditional right of purchase, but they took the right subject to a very important exception, viz. "excepting such parts of said buildings and improvements as may be required by said second party for the proper and convenient use of its road, and for its engines, cars, and repairs." This exception was general in its terms, and could not be confined to any particular building or class of buildings which the railway company might erect during the term of the lease, provided the company, at the termination of the lease, required the building so erected for the "proper and convenient use of its road." At the expiration of the lease, there were buildings on the leased premises outside the railway location. By the terms of the contract the plaintiffs, if they desired, might purchase these buildings. As to these buildings, there were no conditions attached to the plaintiffs' right of purchase. The Summit House was within the location, and by the terms of the contract, if the plaintiffs so desired, they might buy the Summit House, provided "the railway company did not then require it for the proper and convenient use of its road." The right to determine what buildings were required for such use was not left to the discretion of the plaintiffs or that of the court; it was left solely to the railway company. The parties might have made a different contract, and provided that referees or the court, or some other tribunal, should determine whether the Summit House was or was not required for the proper and convenient use of the road. They did not make such a contract. They agreed that the railway company should exercise its sole discretion upon that subject, and determine for itself what it required. In accordance with the right reserved to it by the contract, the railway company has exercised its discretion, and determined that question. November 1, 1887, the plaintiffs notified the railway company that they desired to purchase all the buildings. December 27, 1887, the railway company served notice upon the plaintiffs that it required said buildings (meaning the Summit House) for the proper and convenient use of its road within the terms of the contract. In giving said notice, the defendants exercised the legal right plainly reserved to them by the contract. By that notice the plaintiffs' conditional right of purchasing buildings within the location on the summit, viz. the Summit House, was terminated.

III. The additional location was legally made, and cannot be annulled, in whole or in part, by any just order of the court. January 3, 1888, the railway