to a movement entirely within the limits of one state or territory, and it was so held under the old law.9

Kind of Animals.-The statute says, "cattle, sheep, swine or other animals." It has been held that horses and mules are embraced by the words "other animals."10 In the case reported 18 Fed. it is intimated that the law is limited to quadrupeds, and in the Virginia case it is pointed out that the statute is primarily humane, as indicated by its title, rather than a sanitary regulation, hence, the phrase, "other animals," should be held to include all animals that might be shipped in crowded cars or boats and which would suffer in like manner with cattle, sheep and swine, for the want of food, water or rest. Both cases hold that the statute is not restricted to animals used

for food.

When Unloading Not Required.-Section 3 provides that "when animals are carried in cars, boats, or other vessels in which they can and do have proper food, water, space, and opportunity to rest, the provisions in regard to their being unloaded

them.

ficient space in the car, and that the caretaker had undertaken to see that they were properly fed and watered and had been given the opportunity to feed and water The animals must actually have had the proper food and water.13 Lack of knowledge that they were not receiving proper attention is no defense to the carrier. Where the shipment was in patent cars provided with pans for watering, the carrier is guilty if it fails to water them for 28 hours, or if the pans were so constructed that they were tipped up and spilled the water so that some of the cattle could not get any.1

14

When Period Begins and Ends.-The statute provides that in estimating the time of confinement the time consumed in load

ing and unloading shall not be considered. Does this mean that the time begins to run as to a particular animal from the time it is loaded into the car, or that the time begins on the whole carload from the time loading of the car is complete? Suppose

there are several carloads belonging to one or more shippers and consigned to one or more consignees, being loaded concurrent

later held to the contrary by the Circuit Court of Appeals, the court observing that it would be difficult to arrange an agreement among the cattle to take turns at lying down.12 It is not enough, however, for the carrier to show that the stock had suf

(9) U. S. v. East Tenn. V. & S. R. Co. (Tenn.), 13 Fed. 642; U. S. v. Louisville & N. R. Co. (Tenn.), 18 Fed. 480.

(10) U. S. v. L. & N. R. Co., 18 Fed. 480; C. & O. Ry. Co. v. American Ex. Bk., 92 Va. 495, 44 L. R. A. 449; Baltimore & Ohio S. W. R. Co. v. U. S. 220 U. S. 94.

(11) U. S. v. N. Y. C. & H. R. R. Co. (N. Y.), 186 Fed. 541.

(12) Erie R. Co. v. U. S. (N. Y.), 200 Fed. 406; U. S. v. Erie R. R. Co. (N. Y.), 191 Fed. 941; U. S. v. N. Y. C. & H. R. R. Co. (N. Y.), 191 Fed. 938.

Does the time begin to run on each car from the time its loading is complete, or is each shipment to be considered separately, or may the loading of all the stock be regarded as one transaction? These questions are answered in Baltimore & O. S. W. R. Co. v. U, S.,15 holding in such case that the loading of all the cars may be considered as one act if it be not discontinuous or unduly prolonged, so that the time would begin to run from the completion of loading of the last car. The fact that the

ownership of the stock is in different persons is immaterial. And even where cattle were loaded at different stations within a few minutes of the same time, and the cars consolidated into one train, it has been held that to use the language of the court1"there was practically but one offense, and the slight difference in the time. when the lawful period expired is insignificant, and therefore, giving the statute a reasonable construction, may be disregarded."

Since time consumed in unloading is not to be counted the statute is satisfied if the unloading is commenced within the time limit, subject to the condition implied in the Baltimore & Ohio Southwestern case, supra, that the process of unloading must not be discontinuous or unduly prolonged. The law puts the responsibility primarily

on the carrier to see that the stock are unloaded within the prescribed time. Hence where the caretaker told the carrier's agents that he would find the consignee and tell him that the car was ready to be unloaded, and have him unload it, the carrier must still show that it used reasonable diligence to have the car unloaded within the time limit.17 When the defendant initial carrier delivers the shipment to connecting line within the time limit it would seem that it does not incur liability for the penalty though the connecting line should fail to unload within the required time, and it has been so held in a case where it appeared that the connecting line received the shipment in sufficient time to have carried it to the stockyards and unload it within the time limit.18 The question of whether the connecting line had time enough to unload within the time limit would seem to be immaterial, however, since the defendant did not confine the stock

(16) U. S. v. N. Y. C. & H. R. R. Co. (N, Y.), 191 Fed. 938.

(17) Ore.-Wash. R. & N. Co. v. U. S. (Idaho), 205 Fed. 337.

(18) Missouri, K. & T. Ry. Co. v. U. S., 178 Fed. 15.

beyond the lawful time and the Act does not make it liable for default of succeeding lines. The protection of the latter in such case is in their right to refuse to receive the stock if they cannot do so without violating the law. The true distinction would seem to be whether the succeeding line is an independent carrier or a mere agent of the defendant. This aspect of the matter is not discussed in the case cited, but in another case19 it was held that the initial carrier could not excuse itself by showing delivery to a terminal company within the time limit, where such terminal carrier was not an independent carrier holding itself out as such to the public, but a mere agency of the trunk lines, which contributed to the expense of maintenance of the terminal company in proportion to the service it rendered to each. The court held the

In

initial carrier was liable for the default of its agent the terminal company, which was employed by it and not by the shipper. the court's opinion the first carrier's liability does not end until the shipment is delivered to the next connecting (i. e. line haul) carrier.

A carrier receiving a shipment already confined beyond the limit and carrying it with due diligence to its pens, convenient to the junction point, for unloading has been held not liable for the penalty on the ground that its handling of the stock was a part of the unloading,20 but the contrary has also been held in a case where it is said that the time spent in unloading embraces only that space of time required in putting the animals off the car.21 In most cases the question of liability under such circumstances is made to depend on wheth

(19) U. S. v. Union Pac. R. Co. (Utah), 213 Fed. 332.

(20) U. S. v. Lehigh Val. R. Co. (N. Y.), 184 Fed. 971; U. S. v. Delaware, L. & W. R. Co. (N. Y.), 206 Fed. 513; St. Louis, M. B. & T. Co. v. U. S. (Ill.), 209 Fed. 60.

(21) U. S. v. Nor Pac. Term. Co. (Ore.), 181 Fed. 879.

er the carrier acted knowingly and willfully.

Delivery to the consignee within the time limit ends the liability of the carrier. Thus where the bill of lading called for delivery on the consignee's private track, but custom required that the cars be placed opposite a runway on the track which was the only practicable place for unloading them, the carrier is not liable if it places a car of stock at the runway and notifies the consignee before the expiration of the time limit, though the consignee fail to unload within the prescribed time; but mere placing of the cars on the side track at a point not opposite the runway is not a complete delivery and the carrier is liable if the stock are confined overtime. It is no defense that there was a car at the runway being unloaded when the car in question arrived.22 There are cases where the cars were placed at consignee's pens after business hours23 or during a storm,24 but as these decisions seem to turn on the question of willfulness rather than on whether there was a good delivery they will be considered under that head.

Unloading in Transit. The law prohibits the confinement of stock in cars or boats "for a period longer than twentyeight consecutive hours without unloading the same in a humane manner, into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours." Suppose the stock are confined first in cars twenty-five hours then unloaded into pens, but such unloading is not in compliance with the statute because not done in a humane manner or the pens are not suitably equipped, or the stock are not fed or watered, or because they are not allowed to remain in the pens five hours before being reloaded into the cars and sent

(22) U. S. v. Phila. & R. Ry. Co. (Pa.), 223 Fed. 206.

(23) U. S. v. Phila. & R. Ry. Co. (Pa.), 223 Fed. 207.

(24) U. S. v. Phila. & R. Ry. Co. (Pa.), 223 Fed. 211.

on their way. What is the situation? Is an offense committed as soon as the twentyeight-hour period counting from the time of first loading has elapsed? The general purpose and spirit of the Act suggests that this question be answered in the affirmative, but since the statute is penal familiar rules of construction require that it be construed strictly in favor of the defendant, and the correct view on principle is believed to be that in the case stated the carrier is not liable unless and until the confinement in the cars exceeds the prescribed time. To violate the law the stock must be confined in cars or vessels over twenty-eight consecutive hours and the Act itself provides that it is its intent "to prevent their continuous confinement" beyond the twenty-eight hour period. In the hypothetical case they are not confined in cars or vessels for twenty-eight consecutive hours. It may well be held that the consecutiveness or continuousness of the confinement cannot be broken within the meaning of the Act except by unloading in the manner prescribed, but it is difficult to see how the time the animals are in pens can be counted as a part of the offense of confining them in cars beyond the lawful by the decisions. period. The question is not fully answered The point was clearly raised in U. S. v. Lehigh Val. R. Co., 25 but the court refused to decide it and disposed of the case on other grounds. The opinion of the trial court is quoted, however, which accords with the writer's view. The facts in the case were that the animals had been unloaded into the pens after twenty-one hours' confinement and had remained in the pens twelve hours, but without feed, and had then been loaded on a barge and confined thereon four hours and forty-five minutes.

(25) (N. J.). 201 Fed. 705. The interpretation suggested as the proper one would be in large measure destructive of the Act and probably would not be sustained by the Supreme Court. Balto. & O. R. Co. v. Pitcairn, 215 U. S. 481; Tex. & P. Ry. Co. v. Abeline, 204 U. S. 426.

་ མ་

Other decisions seem to take the view without clearly stating it, that the carrier is not entitled to deduct the time the animals may have been in pens en route, unless their unloading therein is in conformity with the statute. Thus where the carrier unloaded the cattle within the time limit, but only for three hours, and then reloaded and forwarded them, it was held to have incurred the penalty upon the expiration of the time limit counting from the time of the first loading without any allowance for the three hours.26 And where the carrier confined the stock in cars overtime, and then unloaded them for only three hours, it was held to have twice violated the Act and rendered itself liable for two penalties. It was no excuse that the owners requested that only three hours' rest be allowed or that it was only a very short run to final destination.26a The holding that the failure to rest the stock five hours in the pen as prescribed by the statute constituted a violation of the law would seem to be clearly erroneous since the statute prohibits only the excessive confinement of stock in cars or vessels. Where the railway company has provided itself with proper pens, suitably located and sufficient for the reasonable accommodation of traffic, it cannot be held liable where, in order to avoid confining cattle in the cars overtime, it is compelled, on account of various delays which could not have been expected, to unload them in pens at an intermediate station not properly equipped, since its act though knowingly done is not willful.27

Thirty-six Hour Release.-The limit of confinement is 28 hours except "that upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and

(26) U. S. v. New York C. & H. R. R. Co. (N. Y.), 221 Fed. 1000.

(26a) U. S. v. Delaware, L. & W. R. Co. (N. Y.), 220 Fed. 944.

(27) St. Louis & S. F. R. Co. v. U. S. (Mo.), 169 Fed. 69.

apart from any printed bill of lading, or other railroad form, the time of confinement may be extended to thirty-six hours." Such release when executed is one of the "contingencies hereinbefore stated" which excuses the carrier for confining the stock beyond the statutory twenty-eight-hour period.28 The request may be made by the owner or by an agent to whom he has intrusted the shipping of the livestock, and may be made either before the movement commences or during transportation; it need not be induced by any unforseen contingency. It may be on a railroad form provided such form is separate and apart from the bill of lading or any other railroad form. A request partly in printing and partly in handwriting is good.29 A special written request must be made for each shipment. General written instructions from the shipper applicable to all future shipments, though confirmed orally as to the particular shipment do not constitute a compliance with the law.30 It has been held, however, that the Act does not require the request to be on a virgin sheet, for, says the court, the law "requires the separateness of the request as a request and not the separateness of the paper or material on which it is written." Applying these principles, a request written on the bottom of the waybill and signed by the shipper was held to be sufficient.31 An agreement between the carrier and shipper to confine the stock over thirty-six hours is void and affords the carrier no protection even in a civil action by the shipper for damages. 32

(28) U. S. v. Pere Marquette R. Co. (N. Y.), 171 Fed. 586.

(29) Wabash R. Co. v. U. S. (Mo.), 178 Fed. 5; Atchison, T. & S. F. R. Co. v. U. S. (Kan.), 178 Fed. 12; Missouri, K. & T. Ry. Co. v. U. S. (Kan.), 168 Fed. 15 (The sufficiency of the request is for the determination of the court).

(30) U. S. v. Pere Marquette R. Co. (N. Y.), 171 Fed. 586.

(31) Mobile & O. R. Co. v. U. S. (Ill.). 209 Fed. 605. See also Nor. & W. Ry. Co. v. Steele (Va.), 86 S. E. 124, where the release was by indorsement in shipper's handwriting on margin of bill of lading.

(32) Webster v. Union Pac, R. Co. (Col.), 200 Fed. 597.

Sheep. The effect of the special proviso as to sheep is not to authorize their confinement in any case beyond thirty-six

pany on September 6, 1913, voted to take by purchase or otherwise certain land situated on the northerly side of Chase's pond, a portion of which belonged to this defendant. On

without any release from the shipper, to continue their confinement until they reach a suitable place for unloading, but not exceeding thirty-six hours where the twentyeight-hour period expires in the nighttime. 33 Where it is obvious that the thirtysix-hour period will expire in the nighttime. it is the duty of the carrier to unload before dark,34

"Said corporation shall be liable to pay all damages that shall be sustained by any persons by the taking of any lands or other property *** and if any person sustaining damage as aforesaid and said corporation cannot mutually agree upon the sum to be paid therefor, such person or said corporation may cause the damage to be ascertained in the manner prescribed by law in case of damage by laying out highways." § 4.

In furtherance of the power of eminent domain thus conferred, the directors of the com

the office of the county commissioners of York County a declaration and description of said real estate, as the first step towards taking the same by condemnation proceedings, and in conformity with R. S. 1903, c. 56, § 11. This declaration alleged that the company "finds it necessary for its purposes and uses in the protection of the watershed of Chase's pond in said town of York to take land within the limits of the watershed of said pond in said town of York, and being duly authorized by law to take such land whenever it is necessary for its purposes and uses. Therefore, said York Shore Water Company has taken and hereby does take a certain tract," as described in a certain plan filed therewith.

The defendant as owner of a portion of the land so taken, on the 7th day of July, 1914, filed with the county commissioners a petition containing a copy of said taking, asking that board to fix a time for hearing, to view the premises, hear the parties, and assess the damages in the manner provided by law. After due notice given to the company, a hearing was had on August 13, 1914, at which both parties were present and participated. On November 3, 1914, the county commissioners filed their award, assessing damages in the sum of $1,100 and ordering the company to pay that amount to the owner, Mr. Card.

No appeal was taken from this award, but on March 24, 1915, the company executed, and on March 31, 1915, delivered to Mr. Card a written notice of so-called abandonment and surrender of the condemnation proceedings and of the property taken thereunder.

After reciting the facts relating to the declaration and description of December 22, 1913, except that it is now said to have been made "with a view of taking the same for the purposes of said corporation as for public use,"

this notice of abandonment alleges that the company has never entered upon the premises or taken possession thereof, and that it "hereby abandons and surrenders up to you all its right, title and interest if any, in said premises, and thereby notifies you of its intention not to take said property or make any claims thereto under said proceedings."

Mr. Card disregarded this notice of abandonment and on the first Tuesday of January, 1916, more than a year after the award had been