818
. FEDERAL .ttEPOR1'.ER.
ingredients of a plea of· that kind; yet, taking it as a whole, it is in my judgment in effect a plea in bar of the action, and I shall treat it as a plea in bar." And in the written memorandum of the charge to the jury we find the following: "As to the form of the verdict, I agreed with counsel for plaintiff and defendant that if the juryfound against the pleas' of defendant the verdict should be in favor of plaintiff against defendant for principal and interest on note; and that if the jury found in favor of the pleas, the verdict should be, 'We find in favor of defendant's pleas i'" and no objection was made to this instruction. And finally there is no showing made that the defendant has any just defence to the action in order to move the discretion of the court to relieve him of the verdict· and judgment againt him. The motion for a new trial is overruled and discharged· .Judge ERSKINE, the district judge, concurs in this opinion. See Tal/lor v.¥,psilanti, notes of cases, post.
CHARTER OAK LIFE
INs.
Co.
v.
ClIATILLION.-
(Ol'rcui' Cour', E. D. REAL PnOJ;'ERTY-DEEDS.
May 18; 1882.)
Where A. and wife joined with B. in the execution of an instrument by which the two former cdnveyed to the latter a certain tract of land in fee, and the latter, in' consideration of said conveyance, covenanted not to convey said during the grantors' lives, l!ond also covenanted to maintain A. and. wife "during their natural lives, 'with good and suffiClent clothing and food, in sickness and in health, furnish them with a horse and cart, and give them at all times their lives.i":and frce afcess to the property conveyed for their own where the. same parties subsequently executed another deed, in which, after referring to the former one, and declaring that the covenants therein contailied were found to operate to the prejudice of said parties, the said B., for tlliat and divers other good reasons, did abandon, relinquish, and quitclaim to all the property in the aforesaid deed described unto the said A., and the said A. and wife did thereby" release and discharge the said B. from each and everyone of the covenants by him entered into in 'the aforesaid deed," and' B. llubsequently bought p.art of thesame property from A,: hela, that notwithstanding the fact that the word" heirs" bad not been Ilsed in the latter deed, it had reconveyed to A. all the interest in said land which had been conveycd to B. by the ' " former one.
Suit in Ejectment· · Reported by B. F. ltex, El:lq., of the St. Louis bar.
CHARTER OAK LIFE INS. CO.- V. CHATILLION.
819-
The material facts are as follows: In the year 1830 Francis Fournier and wife conveyed certain real estate in fee to Francis Denoyer. 'By the same instrument they also conveyed to him all their personal property. The deed declared that the consideration of the conveyance was that Denoyer should" maintain Fournier and his wife during their natural lives, with good and sufficient clothing and food, "in sickness and in health, furnish them with a horse and (;Iart, and give them at aU times free access to the property conveyed for their own use during their lives," during which time Denoyer covenanted not to cOllvey or dispose of the land to any person whom.soever. On the thirty-first day of January, 1831, by a deed referring the above-mentioned conveyance, and reciting that the parties found said deed, and the covenants therein contained, to operate to their prejndice and against their interest, went on to declare that these and divers other· good causes moved the parties to make said deed of January, 1831, by which he, said Denoyer, did" abandon, relinquish, and qUitclaim to all the property aforesaid deed described unto the said Francis Fournier, and they, the in said Francis Fournier and wife," did thereby" release and discharge the said Denoyer from the further performance of each and everyone of the cOvenants by him entered i'nto in the aforesaid deed." In February of the Bame year Fournier and wife reconveyed part of the land embraced in said previous conveyances to Denoyer. The land in dispute in this case is that portion of the real property conveyed by said deed of 1830 not embraqedin the deed of February,1831. Subsequent to the execution of the deed of February, 1831, Fournier conveyed the property sued for to the party from whom plaintiff derives title. The defendant claims title from Francis Denoyer by descent. . ':'
The only question in the' case was as to the operation of said of January, 1831. Did it convey an estate in fee, or merely a life -interest? J. S. Fullerton, for plaintiff. Collins cf: Jamison, for defendant. TREAT, D. J. The deeds of Francis Fournier and wife, January 16, 1830, to Denoyer, and of Denoyer to Fournier and wife, January 31; 1831, 'together with the deed of Fournier and wife to Denoyer, FebAeedof Janruary 1, 1831, fully establish the uary 31, 18at. The original deed contained, among other covenants to the grantors, a right of free access to the property during their lives for their own use, and bound Denoyer, the grantee, not to pose of <Ii convey said property to any person or during the life-time of the grantors. ' .Without 'commenting on the fact that said deed was of personalty and of the restraint upon ,alienation thus contained, as 'YeH 'as' it is clear that theinteut of the parties by 4ee<i was to,.
820
REPORTER.
restore to Fournier and wife all property by them previously con.veyed to Denoyer as fully as Denoyer had acquired the same by the first deed. There remained in and wife under the first deed a sufficient interest in the property for a deed of release or relinquishment to operate upon. The conveyances were not between strangers, but inter parties. and therefore the rigid technical rules invoked do not obtain. It seems that the subject-matter of the controversy underwent review by the supreme court of Missouri, (15 Mo. 160,) where the same conclusion was reached, but under a different state of pleadings, and resting on recognized principles of equity. ., case before this court being solely of law, it is rightfully contended that rules of equity cannot. prevail. The case before the supreme court of Missouri did not require an analysis of the nice legal rules concerning conveyances by release, change, confirmation, etc. An, examination of that class of' cases will show that the omission of words of limitation in the second 4eed did not the fee from paseinKback from Denoyer to Fournier and wife as fully as by the previous deed the same had passed from them to Denoyer. They had a life interest, and the recitals of the second deed express clearly the intent to restore the parties to their former rights of property, discharged from covenants, as fuUr'as if ' the first deed with its covenants had never been executed. Judgment for plaintiff. Damages. eight dollars; monthly :rent,' three dollars. ' .
MELLEN
TOWN OF LANSING.
(Ohcuit (Jo.urt; N. l):New York.
12,1881.):
The route and involve the starting point and the terminus, and must comprehend the entire structure throughout its length, and before a town has authority to issue bonds, the board of directors of the railroad company must a.branch have e.;ercised, tM dieicretionary power vested in them. to raUrolld th,ough the county in which such town is 10<;8tOO, as. it W,al! not the interition .of the statute that any town should issue bonds tinless'tJJ,e road should run through it, or through the county in which it is situated.
MELLEN, V · . TOWN Oil'
8,21
On Motion for New Trial. E. C. Sprague, for plaintiff. H. L. Comstock, for defendant. BLATCHFORD, C. J. This suit is brought on coupons cut from bonds purporting to have been issued by the town' of Lansing, in Tompkins county, New York, and bearing date December 1, 1871. The coupons sued on are 47 in number, falling due September 1, 1879, . cut from 47 bonds, the principal of which bonds, amounted to $38,000, the coupons amounting to $1,330.. The s.uit, was tried before the court and a jury, and the plaintiff .had a verdict, under the direction of the court, for $1;457.59; being the amount of, the coupons and interest thereon. The defendant now moves fora ne,wtrial on a bill of exceptions, containing exceptions taken at thetriaJ. The bonds state on their face that they are obligations of the town, and that they are issued under the provisions of theaot.of,the legislature of New York, passed April 5, 1866, entitled act to facilitate the construction of the New'York & Oswego Midland Railroad, and to authorize town to su.bscribe to the capital stock thereof," alid .the several acts amendatory thereof and supplementary thereto; especially the act entitled "An act to authorize the New York & Oswego land Railroad Company to extend its road., and to the cOnstruction thereof,", passed April 5, 1871. Thebon.ds purport to be attested by the hands and seals of three . persons, who style them:selves "duly-appointed commissionersof.aaid town of Lansing," and the bonds state that they have caused. eac.h of the .annexed. coupons to be signed hyone of their number. ",j , The statutes set :up in the complaint as those under which the town was authorized to issue the bonds, .are the said act of April 5,,1866; (Laws of NewYol'k,1866, voL. 1, c. 398, p. 874 ;) the act otMa.y 15. 1867, (Laws 'c)f New York, 1867, vol. 2, C.: 917, p. 2290;) and the vol. l,c; 298, said act of April 5, 18n,(Laws p. 586.) The ,complaint alleges that, by ,theprovisioos of said the said town was. authorized to. exe,cnte, issue" anI} bonds; and it refers to said acts, and makes:them a part of: the cause of action. iJ The act ,of 1866 provides for. the by the county judge of the county in whichthetown is situated, uf:not more than three commIssioners, to, carDy into effect the purposes of the act. The commissioners are: to execute the,bOnd.s'uudertbeirha.nds and seals, and to; issue them.!. When iSfmed1awfullyj they become. tiona of the All the statutes the:nspeak of them as bonds issued; J
822
rEDERAL REPORTER.
by the town. In order to make them bonds. of the town there must be commissioners appointed. At the trial' the plaintiff offered in evi· dence a petition to the county judge of Tompkins county, by freeholders and residents of said town, requesting the appointment of the three persons who afterwards executed the bonds, as commissioners to carry into effect the purposes of said acts "in accordance with the provisions of said acts." "The defendant objected .to: the admission in'Elvidence ofs8lid petition; on theground that thete' was no evidence to show that the county judge had jurisdictiontoappoint commissionersforsaid town, and on the further ground that there was no law giving him such jurisdiction, and that he had no authority whatever to appoint' commissioners for said town. The court overruled the objection, and admHted the petition as evidence, and the defend· ant dwyexcepted to the ruling, under an objection by the defendant on the same grounds, and a like ruling and exception. A paper was admitted in evidence, signed: by the county judge, appointing the said three persons cornmission.ersto carry'into effect the purposes of said acts, "in accordance with the provisions of said acts i" and under a like objection, and a like ruling and exception, the oath of office of the commissioners was admitted in evidence. The coupons sued on, and ,the 4:7 bonds, were admitted in evidence, under an objection a.nd exception by the defendant that the county 'judge had no jurisdiction or authority to 'appoint any commissioners for said town to act 'for it in bonding it in aid of said railroad. At the close of the evidence on botheides the:defendant requested the court to direct a verdict for it "on the ground that the county judge had no power to appoint commissione:tsfor the town," and that "no action by the railroad company towards: the location of its road having been shown, and no determination by the officers of the railroad to build the road on the, road was not located at alL" The court reany fused to direct as requested, and 'the defendant excepted to the rul· ing. The court directed the jury to find a verdict for the plaintiff for $1,457.59, and the excepted to such ruling or direction, and the jury rendered said verdict. These proceedings raise the question whether there was any ute authorizing' the bonding of the town, either by direct description or otherwise. If there was not, there was no jurisdiction to appoint the cOII1missioners, and there were no commissioners and no bonds. It required :special legislative authority to ena;ble the town to issue· bonds: in 'aid of the railroad.... E:ieh ,without what is on the face to th3seboridB, every 'persontating them 'or their coupons is referred 0':
:'lELLIDN V. TOWN· OF LANSING.
the source of authority to issue them in some statute. A' bona fide purchaser of them is thus referred,:equally with every other taker. There may be no informality or irregularity or fraud or excess of authority in an authorized agent capable of operating to the prejudice of a bona fide holder, but there must be some statute providing for the constitution of authorized agents. Everyone, is bound to inquire and take notice whether there is, in fact, such a statute. If there. is not, there is a total want of jurisdiction and 8iuthority in ecmnty judge and in commissioners. There is no authority in the act of 1866 for the issuing ,of bonda by any town in Tompkins county. That· act is confined to towns and cities in eleven counties, which are named, not including Tomp, kins. The act of 1867, &S amended by the act of Ma!ch 31, 1869; (Laws of New York, 1869, C. 84, p. 142,) authorizes the board of directors of the company to construct a branch railroad from,the line of its railroad "at any point in the counties oj Chenango.ot M(tdison, through the counties of Chenango,.Madison, Cortland, Cayuga, to the city of Auburn, in the county of Cayuga, wherever, in thejudgment of the directors, the same shall be for the interest of said corpo,v",· tion;" and also, "in like manner," to a branch road from the village of Delhi to the line of said road; and also a btanchroad from the village of Ellensville to the most feasible point upon the line of said road in the county of Sullivan or Orange; and also a branch road in the counties of Madison, Oneida, or. Oswego.' Then the as so amended, gives to towns, cities, Jl.lld villages along the line of the said branch railroads, ,or interested in the COllstru(}tion,. thereof, same in any county through which said railroad shall ru;n, power to issue bonds to aid in the construction thereof ", as is given by that act as so amended, and by the said act of. 1866. It. is not contended by the plaintiff that there is anything in thfttact of,1867, as so amended, which authorizes the issuing of bonds by any town in Tompkins county. We come now to the act of 1871, under which the ,power is asserted to exist. It is provided as follows by section 1 of that act: "The New York & Oswego Midland Railroad Company.are hereby authorized and empowered to extend and construct their railroad from the city of Auburn, or from any point on sa.id road, easterly or s0'l1th· erly {rom said city, upon such route and location, and,thl'Pugh Buch iJounties, as the board of directors. of said .company shall. deem .JUost feasible and favorable for the construction of said ,railroad, to any point on Lake Erie or the Niagara river. ;York & i
Oswego Midland Railroad Company are also authorized and empowered to connect their railroad at any point in the county of Delaware with the Erie Railway, and to locate and construct such spur or branch railroad as shall be deemed necessary by the board of directors of said company to make such connection in the county of Delaware; and the said New York & Oswego Midland Railroad Company are further authorized and empowered to extend and construct the branch road to the village of Delhi; from said village, or some point near the same, northerLy to the Albany & Susquehanna Railroa.d, and easterly to or near the village of Andes, and the village of Margaretsville,in the couniy of Delaware; and. any town, village, ot city in any county through or near which said rajlroad its branches may be locatea; except: such ,counties" towus, or cities as are excepted from the, ptd:visions of the bonding law,JiUay aid or facilitate the construction of the said New York and OswegoMidland RailrOad, anddts branches and extensions, by the the manner provided for" in the issue and sale. of its bonds' said act of 1866, and the acts ltmendatory thereof and supplement. luy,thereto. This statute does net give powertoeyery town in the state,nor to any town by name, nor does it designate by name any county. It confers power on any town "in any countY' through or near which said railroad or its branches may be located." What. is meant by "located?" The words are vary vague and loose. "Through or near which" probably refers to "county," as not only is that the last antecedent, but, if the. words ,"through or near which" refer to "town, village, or city," the words "in any comity" would be superfluous. So, if Lansing is a town in a county through or near which the railroad or its branches "may be located,"-that is, if Tompkins county is such a county,-then Lansing may issue its bonds to aid the construction of the railroad, and its branches and extensions. The act of 1866, section 15, empowers the company to build two branch railroads, which are designated. The act of 1867, as amended in 1869, empowers it to construet. other branch railroads. The act of 1871 empowers it to construct other extensions or branches. By the act of 1866 the branch railroads thereby authorized to be _built are to be built "whenever, in the judgment of the directors, the same shall' be for the interest of said corporation." The same language is used in the act of 1867 iIi regard to the branch railroads thereby authorized. In the act of 1871 the authority is to extend and construct their railroad (1) from the city of Auburn, or from any point on said road, easterly or southerly from said city; (2) upon such
MELLEN 'V. TOWN OF LANSING.
route and location, and through such counties, as the board of ors shall deem most feasible and favorable for the construction of said railroad; (3) to any point on Lake Erie or the Niagara river. These three things concern (1) the starting point; (2) the route; and (3) the terminus. But the "route and location" necessarily involve the starting point and the terminus, SiS there cannot be a complete route and a complete location which do not COIDt>rehend the entire ter. structure throughout its iength, So the starting point and minus, as well as the transit route between the two, are embraced within the "location" which1he boatdof directors are to determine upon as "most feasible and 'favorable" f()r the construction of the railroad, in respect to the extension now under consideration. So, in regard to the second branch railroad authorized -by the act of 1871, it is ·tobe 'Such a one "as shall be deemed necessary: by the board of directors of said company," and 'tlia other extensions izedby the actoI 1871 mnst necessarily have a "route andlocation,l' or be "locate(1." ,1'" It is not here contended that eItner the railroad, or anyone of its said branehes, was Ideated through or near the::county of Tompkibs, in the sense of the act of 1871, unless it wa.s the extensio:tl&t>pro': vided for to a point' on Lake Erie or the Niagara rivet;' aind it is contended that that 'was located through: Tompkins county,and' through the town of Lansing. InPpople v.Morgan, 55 N. Y. 587; the said acts of 1867, as so amended, and 1871 were under consideration in respect to the town of Scipio, in Cayuga county, The court of appeals held that that town might be embraced in the act of 1867, as 80 amended, but that before it could have the authority under that act as 80 amended to issue bonds, the board of directors of the railroad company must have exercised the discretionary power vested in them to establish a branch railroad through the county of Cayuga; that the counties through which the branches should run were the only ones where towns were empowered to issue bonds; that it was not the intention of that act, as so amended, that any town should issue bonds unless the road should rllnthrough it, or through the county in which the town was situated; that such result might follow if the town bonds should be issued before the branch road was located, or the board of directors of the company had even determined whether or not they would exercise the privilege of constructing the branch, and that it did not appear in that case, in any manner, that the branch to Auburn had been located, or even determined upon, when
RBfORTER.
thEf pl:QCeed'ings' then under review were instituted. The case was a. certiorari to review the proceedings of the assessors of the town in the matter of bonding it in aid of said company. In respect to the act of 1871 :the court beld that that act made the location of the road or branch a condition pre.cedent to the right to issue bonds; that there was, J;1O proof that any such location had been made at the time of the. proceedings to bond the to'wn:; that there was no evidence of any authority:to bond that town in a.idof the railroad; and that the most that appeared was that acts had been passed purporting to authorize the,bondingiof"the towns in Cayuga in certuin events, which were not shown to have ocnurred.The.Qonrt held this objection-fatal, and vlWated the proceedings. The Code cited does not decide what. i& "location,"ot what is ,sufficient evidence of location. It decides that no evidence of lpcation, in that case. It implies that, location is something wbichiB tq fqllowa determination by the board of, to and it wou'd Beem further tO imply that where location is established such prior determination rqay be ;infelired. His quite clear that such decision of court of appeals of New York,;inregard to the act of 1871, gives a correct view of the act. The lOCation of the first branch authorized by that act was a condition precedent to the right of the town of Lansing to issue the bonds in qUE;lstion, and:i1J a condition to be enfoJ:ced even where the, or coupons are in the hands of a bona fide holder. The absence of such location is ,as fatal as if there were no act. . The location is made by the act itself expressly to precede the aid. It ill not proper to deoide wllat evidence must be given to be sufficient evidence of location. It is only necessary to say that the. evidence, of locittion given in this case was not sufficient, and that there was error in directing a verdict for the plaintiff. On another trial the difficulty may, perhaps, be obviated. With a view to showwhat the insufficiency of evidence, was, it is necessary to examine it. This is the whole of it: I
I
" Egbert Williams, sworn on behalf of plainUff, testified as follows: I reside in Lansing. Have lived there about 55 years. In 1871 or the fall of 1870 a road was graded into the town of J;.ani;ling. In 1872 it began mnning. sing is south and a trifle east from Auburn. The railroad started from Freeville,Tompkins county, in the town of Dryden, ran through part of Dryden and Lansing and into thetowns of Geneva and Venice, and thence into Scipio, and there stopped. Cars were run on it with the Midland name on-N.Y. & O. M.-and other cars. Freeville is 10 miles west.of Cortland. rrhere was a.
MELLENV. TOWN .OB'· LANSING.
·827
rO:ld from Freeville to Cortland,and from Cortland to Norwich,' The main line of the Oswego Midland Railroad goes through Norwich. From the road stopped in Scipio it was about 11 miles to Auburn. I went, once from Cortland to Norwich on a branch of the New York & Oswego Midland Railroad. The road begins south from Auburn,-about seven miles fronl Auburn,-runs southerly through the town of Lansing, and goestoFreeville. This road stops there. A railroad, called the Utica, Ithica &. Elmira, runs from Elmira, through Ithaca and Freeville, to Cortland. The branch from Norwich to Cortland is by the New York & Oswego Midland Railroad. I went by stage from Scipio to Auburn. Oross-examined. The Utica, Ithaca & Elmira is another road., and runs to Freeville and through it. It was understood that this branch of the New York & Oswego Midland Railroad began at Freeville. When the proceedings to bond the town began. no work had been done on the road. The grading was begun in 1872, I. think, and finished in 1873. It was some time after my appointment as commissioner that grading was begun. I think it was begun in the fall of 1872. I think grading was not begun until after I was appointed. Redirect. Grading was not commenced till after we were appointed commissioners, [OctOber 21, 1871.] There was surveying in the summer previous. I saw stakes being driven where the road was afterwards graded."
This witness Wl1S one of the three commissioners who issued the bonds. It is necessary, not only that the branch should have been located, but that it should appear to have been located by this Surveying a route first, then grading it where it was surveyed, and then making a railroad where it was so graded, amounts to nothing, unless it be shown that the railroad so made was made by this com· pany. It was only to aid the construction of this railroad, and its branches and extensions, that this town could issue its bonds. It is here that the evidence is defective. There was surveying befpre the ,commissioners were appointed, but that it was done by this company does not appear. Stakes were then driven where the toad was afterwards graded, the grading having been begun after the commissionwere appointed. But it does not appear that it was graded by this company. Nor does it sufficiently appear that the road made from Freeville through Dryden and Lansing, into Genoa, Venice, and Scipio, and which began running in 1872, was a road constructed by this company. The witness says that cars were run on it with the name of this company 'on them, but he also says that other cars were rnn on it. As it connected at Freeville with the road running from Freeville to Cortland, and there was a branch of the Midland road from Cortland to Norwich, the Midland cars may very well have been sometimes used from Cortland to Freeville, and on, by con-
898
I'lllDEBAL
struction track, under some arrangement. This does not show that the road was the road of the Midland Company. The expression of the witness that it was understood that this branch of the Midland road began at Freeville amounts to nothing as proof that this was a branch of the Midland road. There is nothing else on the -subject in the testimony. As Freeville was not a point op the Midland road, it could not, under the act of 1871, be a starting point for the first extensiortauthorized by that act, and the starting point must be Auburn.' But it does not follow that the starting point may not be Auburn, and the road be located, within the act, as an extension from Auburn, although work in surveying and grading and otherwise,in a direction towards Auburn, be first done ata distance from Auburn. At the trial it was supposed that the evidence showing that this road was a branch constructed by the Midland Company was more full and distinct, but a careful consideration of it, as it appears in the bill of exceptions, leads to the conclusion that a new trial must be granted for the reasons above set forth. I have not overlooked the decisbll in Smith v. Town of Yates, 15 BIatchf. 89. The question there was whether the town was a town "situate along the route" of the railroad. It was contended that the route ought to have been located in the manner prescribed by the general act under which the comps.ny was organized. But the court held that, as the road had not yet been built, the language referred ,to as town on the contemplated or proposed route of the road. The difficulty in the preselltcase is that the branch in question is not shown to have been a contemplated or proposed or constructed road of the Midlarrd Company. The. motion for a new trial is granted. See Town of Thompson v. Town ,of Perine, notes of cases,post.
TOWN OF LANSING\
829
MELLEN t·. TOWN OF
LANSING.
THOMAS v. SAME. (Oircult Court, N. D. Nerw York. ToWN HONDS IN
l<'ebruary 3,1882.)
AIl>
OF RAILROADS.
Under a state law authorizing towns, citleR, a.nd villages to issue bonds in aid of railroads or branch railroads passing through the county in which such towns, cities, or Villages are situated, where the reRolution of the railroad company merely fixed the eastern point, but fixed no location, no counties through no location of which the branch should pass, and no western terminus, it the branch through a county not designated,· and is wholly insufficient to authorize the issuing of any bonds by a town in such county. There is no authority to issue the bonds until the whole extension or branch is located.
Sprague, Milburn d Sprague and James R. Cox, for plaintiff. Harlow L. Comstock, for defendant. BLATCHFORD, C. J. This suit is brought on coupons cut from bonds purporting to have been issued by the town of Lansing, in Tompkins county, New York, and bearing date December I, 1871. The coppous sued on are 47 in number, faJHng due September 1, 1879, cut from 47 bonds, the principal of which bonds amounts to $38,000, the coupons amonnting to $1,330. It was tried once before this court and a jury, and the plaintiff had a verdict, under the direction of the court, for $1,457.59, being the amount of the coupons and interest thereon. The defendant moved for anew trial,on a bill of exceptions containing exceptions taken at the trial. The court, o.J;l. August 12, 1881,* granted a new trial. The new trial has been had before the court, without a jury. The first question is as to the statute authority for the issuing of the bonds by the town. By section 1 of the act of April 5, 1871, (Laws of New York, 1871, vol. 1, c. 298, p. 586,) it is provided as follows: "The New York & Oswego Midland Hailroad Company are hereby authorized and empowered to extend and construct tbeir railroad from tbe city of Auburn, or from any point on saia road easterly or sOlltherly from said city, upon such route and location, and through sucb counties, as the board of directors of said company shall deem most feasible and favorable for the construction of said railroad, to any point :m Lake Erie or the Niagara
river."