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S., 528", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5632751 ], "pin_cites": [ { "page": "539" } ], "opinion_index": -1, "case_paths": [ "/us/101/0528-01" ] }, { "cite": "1 Wall., 25", "category": "reporters:scotus_early", "reporter": "Wall.,", "case_ids": [ 3471778 ], "opinion_index": -1, "case_paths": [ "/us/68/0025-01" ] }, { "cite": "98 U. S., 359", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11303 ], "opinion_index": -1, "case_paths": [ "/us/98/0359-01" ] }, { "cite": "22 Ohio St. Rep., 411", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 887132 ], "opinion_index": -1, "case_paths": [ "/ohio-st/22/0411-01" ] }, { "cite": "6 Allen, 52", "category": "reporters:state", "reporter": "Allen", "case_ids": [ 2124572 ], "opinion_index": -1, "case_paths": [ "/mass/88/0052-01" ] }, { "cite": "43 Iowa, 301", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2310679 ], "opinion_index": -1, "case_paths": [ "/iowa/43/0301-01" ] }, { "cite": "18 Ohio St., 169", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 43714 ], "opinion_index": -1, "case_paths": [ "/ohio-st/18/0169-01" ] }, { "cite": "94 U. S., 811", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": -1 }, { "cite": "9 Johns., 507", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 372216 ], "opinion_index": -1, "case_paths": [ "/johns/9/0507-01" ] }, { "cite": "5 Cush., 375", "category": "reporters:state", "reporter": "Cush.", "case_ids": [ 314723 ], "opinion_index": -1, "case_paths": [ "/mass/59/0375-01" ] }, { "cite": "18 Howard, 71", "category": "reporters:state", "reporter": "Howard", "opinion_index": -1 }, { "cite": "24 N. Y., 261", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2029507 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ny/24/0261-01" ] }, { "cite": "21 Conn., 294", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 12125134 ], "opinion_index": -1, "case_paths": [ "/conn/21/0294-01" ] }, { "cite": "3 Head., 596", "category": "reporters:state", "reporter": "Head", "case_ids": [ 8543494 ], "opinion_index": -1, "case_paths": [ "/tenn/40/0596-01" ] }, { "cite": "5 Ohio St., 528", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 509771 ], "opinion_index": -1, "case_paths": [ "/ohio-st/5/0528-01" ] }, { "cite": "13 Penn. St., 555", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 964990 ], "opinion_index": -1, "case_paths": [ "/pa/13/0555-01" ] }, { "cite": "52 Penn. St., 506", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1002181 ], "opinion_index": -1, "case_paths": [ "/pa/52/0506-01" ] }, { "cite": "9 Watts, 9", "category": "reporters:state", "reporter": "Watts", "case_ids": [ 1849950 ], "opinion_index": -1, "case_paths": [ "/watts/9/0009-01" ] }, { "cite": "20 N. J. Eq., 530", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 526214 ], "opinion_index": 0, "case_paths": [ "/nj-eq/20/0530-01" ] }, { "cite": "21 N. J. Eq., 283", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 527487 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nj-eq/21/0283-01" ] }, { "cite": "69 Mo., 224", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 453198 ], "opinion_index": 0, "case_paths": [ "/mo/69/0224-01" ] }, { "cite": "23 How., 381", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3463240 ], "opinion_index": 0, "case_paths": [ "/us/64/0381-01" ] }, { "cite": "20 Ark., 204", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869327 ], "opinion_index": 0, "case_paths": [ "/ark/20/0204-01" ] }, { "cite": "43 Iowa, 301", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2310679 ], "opinion_index": 0, "case_paths": [ "/iowa/43/0301-01" ] }, { "cite": "18 Ohio St., 169", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 43714 ], "opinion_index": 0, "case_paths": [ "/ohio-st/18/0169-01" ] } ], "analysis": { "cardinality": 1870, "char_count": 45925, "ocr_confidence": 0.458, "pagerank": { "raw": 9.673454713355999e-08, "percentile": 0.5289897210223453 }, "sha256": "b11ce77afde32d74aa2e8e16ddc86436e488af3a2845193859513af627d5b8a5", "simhash": "1:fca50da03f561c30", "word_count": 8069 }, "last_updated": "2023-07-14T15:05:42.990471+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Little Rock and Napoleon Railroad Company v. Little Rock, Mississippi River and Texas Railroad Company." ], "opinions": [ { "text": "Harrison, J.\nThis was a suit in equity by the Little Rock and Napoleon Railroad company against the Little Rock, Mississippi River and Texas railway, and Jared E. Redfield \u2014the president \u2014 and Dudley E. Jones, Sol. F. Clark, S. L. Griffith, C. F. Penzel, Elisha Atkins, John H. Reed and E. Winchester \u2014 the directors thereof, to enjoin the said Little Rock, Mississippi River and Texas railway from extending and building its railroad between the- city of Little Rock and the city of Pine Bluff.\nThe complaint, which was filed on the ninth day of February, 1880, alleged, in substance: that the plaintiff was incorporated by an act of the general assembly, entitled \u201can act to incorporate the LittleRock and Napoleon Railroad company,\u201d approved January 12,1853, and granted, the right and franchise to build and operate a railroad from the city of Little Rock to the town of Napoleon; and that, in the exercise of said right and franchise, it at an expenditure of $150,000 surveyed and located the road, and cleared and graded part of the track between Napoleon and Pine Bluff and laid ties along the same.\nThat certain named persons afterwards, on the twenty-fourth day of November, 1868, under the provisions of the act of July 23,1868, entitled \u201c an act to provide for a general system of railroad incorporations,\u201d which, however, it denied to have been constitutionally passed by the general assembly or to have become a law, associated themselves together as a corporation by the name of the Little Rock, Pine Bluff and New Orleans Railroad company, for the purpose of building a railroad from Little Rock to Pine Bluff', and from Pine Bluff' in a southeasterly direction to a point on the south boundary of the state, with a branch from Pine Bluff to a point on the Mississippi river near Napoleon \u2014 and the said company proceeded to build and put in operation the said branch from Pine Bluff to the Mississippi river \u2014 but that it never made any location or survey of the line between Pine Bluff' and Little Rock, or any part of its main line.\nThat the said branch road was built by said company on the located and established line of the plaintiff\u2019 between Pine Bluff and Napoleon, which said company took possession of without the- consent of the, plaintiff, and the work already done upon it was used and appropriated in its construction.\nThat said company issued and' negotiated its bonds, and secured the same by a mortgage on its road, property and franchises; and default having been made in the'payment of the interest, Charles Main and other holders of its bonds, instituted suit against it in the circuit court of the United States for the eastern 'district of Arkansas, for foreclosure of the mortgage, and a decree of foreclosure and sale was rendered therein; and afterwards on the tenth day of December, 1875, all its property, including its i*oad-bed, line and franchises were sold under the decree; and that the purchasers thereof, and their associates, under the provL sions of the act of December 9,1874, entitled \u201c au act supplementary to an act entitled 4 an act to provide for a general system of railroad incorporation,\u2019 approved July 23, 1868\u201d (and which also it denied to have been constitutionally passed by the general assembly, or to have become a law), organized themselves as a corporation, by the name of the Little Rock, Mississippi River and Texas railway, with James E. Redfield as president, and D. E. Jones, S. F. Clark, S. L. Griffith, C. F. Penzel, Elisha Atkins, John H. Reed and E. Winchester as directors, and caused to be filed in the office of the secretary of state, the certificate of such organization required by said act. But that the said purchasers and their associates did not so organize themselves as a corporation within one year after the sale, and they did not file the certificate within six months after their attempted organization; and that they never did in fact become a.corporation.\nThat the said Little Rock, Pine Bluff and New Orleans Railroad company did not, as required by the act of July 23,1868, within two years after the filing of its articles of association in the office of the secretary of state, file therein a preliminary survey of its road, and an affidavit of three of its directors that five per cent, of the stock subscribed had been actually and in good faith paid to the directors, or either \u2014 and which five per cent, of the stock subscribed was never paid; and that it did not within five years after its incorporation expend in the construction of .the road ten per cent, of its capital stock; and other failures to comply with the provisions of the act were stated \u2014 whereby it was charged that it had forfeited its franchises, and had at the time of the decree and sale no corporate existence ; and no franchise whatever passed to the purchasers or to them and their associates.\nThat the said purchasers and their associates, for the reasons mentioned, were not a corporation, but that claiming to be a corporation by the said name of the Little Rock, Mississippi River and Texas railway, and to have the right and franchise to build and operate a railroad from Little Rock to Pine Bluff, and from Pine Bluff to a point on the Mississippi river near Napoleon, were then locating and building, as a part of their line, a railroad between Little Rock and Pine Bluff, upon or parallel to, and within a distance of ten miles of the line located and adopted by the plaintiff'. . ,\nThat the plaintiff was ready and able, and it was its intention t\u00f3 immediately build and put in operation, its road between Little Rock and Pine Bluff; but if the said persons or the said Little Rock, Mississippi River and Texas railway, if it be a corporation, build their or its road, it would by its interference with the trade and business of the plaintiff\u2019s road when completed, cause great and irreparable damage and injury to the plaintiff-, and as a continuing wrong give rise to a multiplicity of suits. And that the said Little Rock, Mississippi River and Texas railway was insolvent and unable to pay any damages that might be recovered against it.\nThe answer of the Little Rock, Mississippi River and Texas railway admitted that the plaintiff located that por-, tion of its road between Napoleon and Pine Bluff, and in the years 1856 and\u2019 1857 cleared and graded, at intervals, a small part of the track and placed ties along the same; but denied that it located or established any part of the line between Pine Bluff and Little Rock, or that it expended in the work anything like the sum of $150,000.\nIt alleged that there had been no election of officers or meeting of the stockholders of the company since 1857, and since that year no calls on subscriptions to stock had been made, and no efforts made to collect previous calls, and it had since then given up all attempts to build the road and abandoned its franchises; and in the - month of July, 1869, M. L. Bell, R. V. McCracken and Samuel Butler, the last elected president, secretary and treasurer of the company, by an instrument of writing, in their respective capacities, so far as they might or could, sold and transferred to the Little Rock, Pine Bluff' and New Orleans Railroad company, whatever interest the company had in the work done and in the line of road, and turned over and delivered to it, all its books, records and papers; and said Little Rock, Pine Bluff and New Orleans Railroad company took possession of such part of the abandoned line and work as answered its purpose, and proceeded to build and put in operation, as a part of its main line from Little Rock to the south boundary of the state, the road from Pine Bluff to Eunice on the Mississippi river, a distance of seventy miles, which ran, a part of the way, on the plaintiff\u2019s abandoned line.\nThat the Little Rock, Pine Bluff and New Orleans Railroad company afterwards became consolidated with the Mississippi, Ouachita and Red River Railroad company, under the name of the Texas, Mississippi River and Northwestern Railroad company, and the last mentioned company thereafter operated-the road until the sale under the decree.\nThat the sale under the ded'ee was confirmed by the court, and the purchasers thereat and their associates after-wards on the eightee2ith day of December, 1875, organized themselves as a corporation under the provisions of the act of December 9; 1874, by the name of the Little Rock, Mississippi River and Texas railway, which became entitled to and vested with all the corporate rights and franchises that had belonged to the Little Rock, Pine Bluff and New Orleans Railroad company, or was derived from it by the Texas, Mississippi River and Northwestern Railroad company, under the consolidation.\nThat after the organization of the defendant corporation, it was found impracticable to maintain and operate part of the road from Pine Bluff' to Eunice, and the defendant, as permitted and authorized by the act of March 3, 1877, entitled \u201c an act authorizing the change or abandonment of location by railroad-corporations,\u201d abandoned about fifty miles of its line as then constructed, or from Varner\u2019s station, twenty-five miles southeasterly from Pine Bluff, to Eunice, and at great expense built about fifty miles of'new road, on another line \u2014 not running near Napoleon \u2014 from Varner\u2019s station to Arkansas City on the Mississippi river below Eunice.\nThat by an act of the general assembly, approved March 15, 1879, entitled \u201can act to donate certain lands of tbe state to the Little Rock, Mississippi River and Texas railway,\u201d the state granted to it certain lands in aid of the construction of its road, and as one of the conditions of the grant requii^d it to begin work on the line between Little Rock and Pine Bluff within twelve months from the passage of the act and to finish the same within two'years; and that it had surveyed and located the line between the two places and bought the necessary rails and fastenings, and contracted for the grading.and ties therefor, and before the expiration of twelve months after the passage\u2019 of the act, began, and was then proceeding with the work of construction as rapidly as circumstances permitted.\nThat the possession taken by the Little Rock, Pine Bluff and New Orleans Railroad company of the part of the plaintiff\u2019s abandoned line, was open and notorious, and the same, except so much as the defendant had voluntarily abandoned, had been ever since, until the commencement of the suit, held peaceably and adversely, successively, by the Little Rock, Pine Bluff and New Orleans Railroad company, the Texas, Mississippi River and Northwestern Railroad company and the said defendant; and that the plaintiff was estopped from asserting against the said defendant a right of franchise to build a railroad between Little Rock and Pine Bluff.\nAnd it further alleged that there was still no regular or valid organization of the plaintiff company; but that certain of the former stockholders, and other persons, falsely claiming to be stockholders, in order to annoy and harass the defendent and embarrass it in the construction of the road, and thereby extort money from it, had recently combined together, and pretended to elect a board of directors and to appoint a president and other officers, and to reorganize the company.\nAnd that having since 1857 abandoned all efforts to build its road, and since then had no organization as a corporation at the adoption of the present constitution, it was by section 1, of Article XII, thereof, deprived of its charter and franchises.\nIt denied that the Little Rock, Pine Bluff' and New Orleans Railroad company failed to file in the office of the secretary of state, within two years after the filing of its articles of association, a preliminary survey of its road, or an affidavit of three of its directors that five per cent, of the stock subscribed had actually and in good faith been paid to the directors; and each and all other matters whereby it wrns alleged in the complaint that it forfeited or was deprived of its franchises, and ceased to be a corporation. And also denied .that the organization of the defendant was not within one .year after the sale under the decree, or that the certificate thereof was not filed within six months after the organization took place.\nIt also filed a cross-complaint, which, in addition to the averments in the answer we have already stated, alleged,, that the plaintiff, if still a corporation, not having surveyed and located its road between Little Rock and Pine Bluff', it, the defendant, has now the sole and exclusive right under the provisions of the act of July 23,1868, to build a railroad between said places within the distance of ten miles of its line; that it was building one of the public-highways of the state, to aid in the construction of which, the state had granted to it many thousand acres of land,, upon the condition that the road between Little Rock and Pine Bluff should be completed on or before the fifteenth day of March, 1881; that if it should suspend work upon it, the public would be subjected to great inconvenience- and loss, and it, the defendant, would be liable to a multiplicity of suits for damages, and would otherwise suffer irreparable loss and injury; that the plaintiff was insolvent: and if damages were recovered against it, they could not be collected, and that the filing of the complaint cast a. cloud upon its right and authority to build the road and greatly, impaired the value of its securities.\nAnd it prayed that the plaintiff' should be enjoined from prosecuting any suit against it calling in question its right to build and operate the road between Little Rock and Pine Bluff, or for maintaining and operating the road between Pine Bluff and Arkansas City, and from itself building a road between Little Rock and Pine Bluff' within ten miles of the defendant\u2019s road.\nThe plaintiff answered the cross-complaint. It denied as in its-complaint, that the Little Rock, Pine Bluff and New Orleans Railroad company ever became or was a corporation, and also denied that the defendant ever became or was a corporation, alleging that the purchasers atthe sale and their associates were not citizens or residents of the state, but that to simulate a compliance with the act of December 9,1874, which requires a majority of the directors of the corporation formed under it to be citizens and residents of the state, one share of stock was by them transferred without consideration and without their knowledge, respectively to Dudley E. Jones, Sol. E. Clark, S. L. Griffith and C. E. Penzel, citizens and residents of the state, to qualify them to become directors; and so, though not citizens and residents themselves of the state, in fraud of the law, to organize themselves as a corporation.\nThe other defendants made no defense to the action.\nThe court upon the hearing dismissed the complaint for want of equity, and rendered a decree in favor of the defendant company upon the cross-complaint, enjoining the plaintiff from interfering with or obstructing it in the construction or in the operating of its road, and from bringing any suit for the possession thereof; but did not enjoin it from building a road of its own under its charter.\nThe plaintiff appealed.\nThe act of January 12, 1853, to incorporate the Little Rock and Napoleon Railroad company, is a public act of which we will take notice, and by it the plaintiff ipso facto \u25a0et e\u00f3 instanti was created a corporation, as held in Hammett v. Little Rock and Napoleon Railroad Company, 20 Ark., 204, the act declaring that \u201cregular organization of the company shall be presumed and considered as proved in all \u2022courts of justice.\u201d And it appeal\u2019s by the pleadings and the evidence, that it had, long before the adoption of the present constitution commenced in good faith the construetion of its road. Section 1 of Article XII of the constitution, by which the charters 'of corporations, of which there had been no bona fide organization, and which had not in good faith commenced business, were revoked, has, therefore, no application to it.\nThe appellant does not claim that its charter has conferred on it an exclusive right to build a railroad between Little Rock and Pine Bluff, or that the state might not have granted a like franchise to its own to another company \u2022 but that until such grant is made, it has the sole right, and the building of another and competing road, by an unincorporated company to which the state has not granted the privilege, by which its gains and profits will be continually affected and impaired, will so interfere with the appellant\u2019s use and enjoyment of its property as to be a nuisance.\nAs an abstract proposition, this, we think, may not be questioned, but we do not deem it necessary to inquire whether the appellee company be a corporation, or have-such a franchise, or not; nor, therefore, whether the acts of July 28, 1868, and of December 9, 1874, under which the appellee company claims corporate powers and franchises, were constitutionally passed, and are valid and subsisting laws.\nThe appellant appears to have done no work on its road since 1857, and since 1861 (if not since 1857, as to which the proof is not clear,) there had been no election of - officers or meeting of the stockholders,- and from that time-until the reorganization of the company, in December, 1879, just before the commencement of the suit, it had no organization, and it seems from the evidence, long before the attempted transfer of the line and work done on it by its former president, secretary and treasurer, in 1869, to the Little Rock, Pine Bluff and New Orleans Railroad company, the stockholders had abandoned all expectation or purpose of building the road. Many of them had become insolvent and gone into bankruptcy, and many of them were dead, and no probability existed of the company ever building the road, and some of the stockholders expressly \u2022consented to and approved the action of the former officers in transferring, or attempting to transfer, the line and road-bed to said company, and in turning over to it the books, records and papers, and none made any objection \u2022thereto, or to said company building its road from Pine Bluff to Eunice, upon the line.\nAnd, as shown by the pleadings and evidence, the appellee company had been, when the suit was commenced, since the eighteenth day of December, 1875, claiming to be and acting as a corporation, and had been recognized as such by. the act of March 15, 1879; and been in the possession-\u2022of and operating the road built on said line by said company from Pine Bluff' to Eunice, except that portion between Varner\u2019s station and Eunice, which it had subsequently abandoned, and had in the meantime built some fifty miles of new road from Varner\u2019s station to Arkansas 'City.\nAnd from the time the Little Rock, Pine Bluff and New Orleans Railroad company took possession of the line, in 1869, until the reorganization of the appellant company, in December, 1879, it stood by, and saw, without remonstrance \u2022or objection by it, or any of its stockholders, the Little Rock, Pine Bluff and New Orleans Railroad company build the road from Pine Bluff to Eunice, and the appellee company, after it became the owner of it by the purchase at the foreclosure sale, at great cost and expense, build fifty miles of new road from Varner\u2019s station to Arkansas City; .and not until after the road from Pine Bluff to the Mississippi river had been built and in operation, and the appellee company was about to build from Pine Bluff\u2019 to Little Rock, did the appellant assert a claim to or indicate an intention to build, that part of tbe line. \u25a0\nThere is no satisfactory proof that the line between Little Rock and Pine Bluff was ever established.\nIt is evident that the building of that part of the road from Pine Bluff to the Mississippi river, has greatly increased the necessity for, and importance of, that between Little Rock and Pine Bluff. .. .\nVe are clearly of the opinion, whether the appellee company has a grant from the state of the franchise to build the road or not, the appellant is estopped from questioning its authority.\nGross injustice would be done the appellee company if it should now be enjoined from the completion of its road, and if an injury results to the appellant, it has been induced by its own conduct. \u201cA corporation,\u201d says Justice Campbell, in the case of Zabriskie v. Cleveland, Columbus and Cincinnati Railway, 23 How., 381, \u201c quite as much as an individual, is held to a careful adherence to truth in their dealings with mankind, and can not, by their representations or silence, involve pthers in onerous engagements, and then defeat the calculations and claims their own conduct has superinduced.\u201d\nAnd Sir Samuel Romilly remarked, in the case of the Rochdale Canal Company v. King, 16 Beav, 630, that \u201c if one stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, of under the obvious expectation that no obstacle will after-wards be interposed in the way of his enjoyment, the court will not permit any subsequent interference with it by him who formerly promoted and encouraged those acts of which he now either complains or seeks to obtain the advantage.\u201d\nAfter for so many years passively encouraging other companies to expend their money and means in the construction of the road, it is too late now for the appellant to claim that it, only, has a franchise to build it. Hitchen v. The St. Louis, Kansas City and Northern Railway Co., 69 Mo., 224; Erie R. Co. v. Del., Lack. & Western, and Morris & Essex R. Cos., 21 N. J. Eq., 283; Morris & Essex Railroad Company v. Prudden, 20 N. J. Eq., 530; Goodin v. Cincinnati & White Water Canal Co., 18 Ohio St., 169; Davenport Central Railway Co. v. Davenport Gas Light Co., 43 Iowa, 301. The case of The Erie R. Co. v. Del., Lack. & Western, and Morris & Essex R. Cos., supra, is very analogous to this. In that case, the chief justice, in delivering the opinion of the court, said: \u201cThe case is this: The complainants claim the exclusive right to a railroad betw een the cities of Paterson and Hoboken; they stood by and saw the defendants build, within sight of their own road, a rival parallel road this whole distance, at a cost of many millions of dollars; they expressed no dissent, sind gave no warning; and, finally, they sold, for a large sum of money, a part of their own land to help the construction of this road, which, it is now claimed, has no rightful basis whatever. In my estimation, these facts are amply sufficient to debar the complainants from ever calling in question the lawfulness of this structure which has been erected, not only through the passiveness of the complainants, but by their .active assistance.\u201d\nCourts of equity ever discountenance laches and neglect, and nothing will put their powers in action but conscience, good faith, and reasonable diligence, neither of which was shown in the appellant\u2019s case.\nThe appellee company was clearly entitled to the injunction granted by the decree.\nThe decree is affirmed.", "type": "majority", "author": "Harrison, J." } ], "attorneys": [ "John McClure, for appellant: '", "Huntington, for appellees:", "Clark $ Williams, for appellees:", "L. A. Pindall, for appellees:" ], "corrections": "", "head_matter": "Little Rock and Napoleon Railroad Company v. Little Rock, Mississippi River and Texas Railroad Company.\n1. Little Book and Natoleon Eailroad Company: Act creating, a \u25a0 public act: Not abolished by constitution of 1874.\nThe act of twelfth of January, 1853, creating the Little Eock and Napoleon Eailroad company, is a public act, of which the courts will take judicial notice; and by it the company was immediately created a corporation; and having, in good faith, commenced the construction of its road before the adoption of the constitution of 1874, its charter was not revoked by section 1, Article XII, of that constitution.\n2. Estoppel: Railroad companies subject to.\n[The principal question decided in this case is, that railroad companies are subject to the same rules of estoppel as individuals. TJpon the facts the appellant is held to be estopped to oppose the appellee\u2019s constructing its road upon the line of the appellant. The facts constituting the estoppel, are too numerous to be included in a syllabus, and the reader is referred, for them, to the case. \u2014 Beporter.]\nAPPEAL from Pulaski Chancery Court.\nHon. David W. Carroll, Chancellor.\nJohn McClure, for appellant: '\nLegislative action essential to exercise of railroad franchises. . The State v. B., C. & M. R. R., 25 Vt., 433; New-burg Turnpike v. Miller, 5 John. Chan., 101; Auburn v. Cato Plk Road, 9 N. Y., 444; McCandley\u2019s Appeal, 70 Pa. St., 210 ; Atkinson v. M. & C. R. R., 15 Ohio St., 21.\nAnd when one grant only is made it is in its nature exclusive. Raritan & Delaware R. R. v. Delaware & Raritan R. R., 18 N. J. Eq., 568. And prior grant gives prior right of selecting land. Canal Co. v. Railroad Co., 4 Gill & John., 1.\nThe act of twelfth of Jan., 1853, sec. 21, gave 500 years to locate the road, in absence of any subsequent grant. This no monopoly. Tuekahoe Canal Co. v. Tuckahoe R. R., 11 Leigh., 42.\nAppellant\u2019s road not within provisions of sec. 1, art. 12, const, of 1874. Hammett v. L. R. & Nap. R. R., 20 Ark., 207. Besides, it is a vested right under const, of U. S. Dartmouth College v. Woodward, 4 Wheat., 418; Binghampton Bridge case, 3 Wall, 51. Neither courts of law, nor of equity can limit time for completion when charier does not. Thicknesse v. Lancaster Coal Co., 1 Eng. Ry. .Ca., 627; Heard v. Talbot, 7 Gray, 119.\nAction lies against defendant by the assumed name. Newton Co., etc., v. Nofringer, 43 Ind., 566; Paulman v. Sweet, 1 Chand. (Wis.), 337.\nThe corporate existence of defendant road interfering with the franchises of appellant, may be questioned. Cases above cited from 3 Wal., 51 ; 15 Ohio St., 21; 18 N. J. Eq., 572. Also, Com. v. P. & C. R. R., 24 Pa. St., 160 ; Boston W. Co. v. B. & W. R. R., 16 Pick., 526; Denver'& S. Ry v. Denver City R. R., 2 Col., 679; Piper v. Rhodes, 30 Ind., 309; Slocum v. Providence, 10 R. I., 114 ; O., V. & R. R. v. Plumas Co., 37 Cal., 360; Gas Co. v. Gas Co., 27 La. An., 138; Elizabeth City v. Bindley, 6 Iredell, 479; Tar Navigation Co. v. Neil, 3 Hawkes, 537; Bigelow v. Gregory, 73 111., 201; Patterson v. Arnold, 45 Pa. St., 81; A. & O. R. R. v. Sullivan, 5 Ohio St., 279; People v. Chambers, 42 Cal., 201; Jersey City Gas Co. v. Dwight, 29 N. J., 242; Brooklyn, etc., R. R., 72 N. Y., 245; ib., 75 N. Y.; Boston & L. R. R. v. Salem & L. Railroad, 2 Gray, 1.\nInjunction the proper remedy. Boston A. Co. v. B. & W. Railroad, 16 Pick., 526; 1 Am. Ry cases, 274; Com. v. P. & C. Railroad, 24 Pa. St., 160 ; Newburg Co. v. Millar, 5 John. Chan., 101; Sto. Eq. Ju., secs. 925, 926, 927; Stewart\u2019s Appeal, 56 Pa. St., 442.\nMaybe at suit of any one injured specially, or about to be, other than stockholders and contractors. D. & S. Ry Company v. Itenver City Ry Company, 2 Col., 679; Piper v. Rhodes, 30 Ind., 309 ; O. V. Railroad v. Plumas Company, 37 Cal., 354 ; Slocum v. Providence, etc., 10 R. 1., 114.\nAny one whose rights are affected may question the constitutionality of an act. Atkinson v. Marietta & Cincinnati Railroad, 15 Ohio St., 21; Gas Company v. Gas Company, 27 La. An., 138.\nDefendant being wrong, can not show forfeiture of plaintiff\u2019s charter. Pennsylvania Railroad v. National Railway, 23 N. J. Eq., 464-5 ; Elizabeth City v. Bindley, 6 Iredell, 479 ; Tar Navigation Company v. Neal, 3 Hawkes, N. C., 537.\n\u201cNon user\u201d or \u201cabandonment\u201d of complainant\u2019s franchises, can not be set up until forfeiture declared. West v. Carolina Insurance Company, 31 Ark., 476. Answer must show when and how corporate rights ceased. Heaston v. Cincinnati Railroad, 16 Int., 276; Brookville Turnpike Company v. McCarty, 8 Int., 392; Sutherland v. L. & M. Plank Road, 19 Iud., 192.\nComplainant\u2019s charter a public law. No abandonment shown. Raritan Water Power Company v. V., 21 N. J. Eq., 479, 80 ; Morris & Essex Railroad Company v. Blaine, 1 Stock., N. J., 648.\nAgreement to transfer does not affect legal existence of corporation, nor actual transfer of all its property. Hays v. Ottawa Railroad Company, 61 111., 42; Abbott v. Rubber Company, 33 Barb., 587; Burke v. Smith, 16 Wall.,' 395 ; Penobscot Railroad Company v. Dunn, 39 Me., 587 ; Bedford. Railroad Company v. Bowser, 48 Pa. St., 29. Directors can not transfer \u2014 eases supra and Field on Corporations,pp. 169-70 \u2014 unlessfor purposes eonsistentwith objects of corporation. Kean v. Johnston, 1 Stock., N. J., 401 ; Black v. Delaware Railroad Company; 7 C. E. Green, N. J., 130; ib., 9; ib., 455 ; Como v. Port Henry Iron Co., 12 Barb., \u2014.\nCharter gave no power to sell. If it existed, it must have been exercised by all the stockholders. Kean v. Johnson, 1 Stock., 401. Defendant had no power to purchase, and no estoppel grows out of void acts. Edwards v. Evans, 16 Wis., 185.\nAssignment of property was not evidence of abandonment or surrender of franchise. Boston Glass Manufacturing Co. v. Langdon, 24 Pick.,.52.\nDistinction between corporations by special charter, and under general laws. Latter must be proved to exist, if denied. Hammett v. L. R. & Nap. R. R., 20 Ark., 207; Bigelow v. Gregory, 73 111., 201; Patterson v. Arnold, 45 Pa. St., 81; Mokelumne Hill Mining Go. v. Woodbury, 14 Oai.,424. Certain acts must be done asconditions precedent of corporate existence. A. & O. R. R. v. Sullivant, 5 Ohio St., 279 ; The People v. Chambers, 42 Cal., 201; ib., 4 Am. Ry. Rep., 49. No terminal points shown in the articles of association.\nA preliminary survey was necessary to existence of defendant company. Act of July, 1868; also, map and profile. What is a \u201c survey?\u201d See Attorney General v. Stephens et al., 1 Sux., N. J., 384; Morris & Essex R. R. v. Blan., 1 Stock., N. J., 644; Hetfield v. Central Railroad, 5 Dutch, 574. Conditions must be fulfilled before corporate rights vest. Jersey City Gas Co. v. Dwight, 29 N. J. Ecp, 242. Requirements of affidavit not fulfilled. B. & P. R. R. Co. v. Hatch, 20 N. Y., 160; section 4919 Gantt\u2019s Digest. As to other requirements, reference made to The People v. Chambers, 42 Cal., 201; The People v. S. & Y. R. R., 45 Cal., 314; Unity Ins. Co. v. Cram, 43 N. H., 636; Harris v. McGregor, 29 Cal., 127; Williams v. Eranklin Association, 26 Ind., 316 ; Bedit v. Harris et al., 4 Minn., 513; DeWitt v. Hastings, 69 N. Y., 522; Abbott v. Omaha Co., 4 Neb., 416; Fields v. Cook et al., 16 La. An., 154; Childs v^Smith, 55 Barb., 52.\nAgainst non-performance of these conditions, equity can not relieve. Davis v. Gray, 16 Wall., 229-30 ; Bigelow v. Gregory, 73 111., 197.\nBut section 4 of act of July 23, 1868, would not, even if conditions had been performed, have authorized defendant corporation to construct, operate or maintain a railroad. See section \u2014, also sections 5 and 22, for the full powers. The \u2022defendant could take no other powers than the original mortgagor had. They purchased under judicial sale, and got no powers. Carey v. Cincinnati R. R., 5 Iowa, 366.\nA statutory forfeiture requires no judicial declaration. \u25a0 The right vests in the state immediately on the event. Oakland R. R. v. O. Y. R. R., 45 Cal., 365 ; Silliman v. F. O. & C. R, R., 27 Gratt., 119; 17 Am. Ry. Rep., 157; 5 ib., 148; The U. S. v. Grundy, 3 Cranch, 151; Kennedy v. Strong, 14 Johns., 129; N. Y. R. R. v. Boston R. R., 36 Conn., 196 ;-D. & E. R. R. v. Beross, 39 Ind., 598; 10 Am. Ry. Repts., 382; Wilds v. Serpill, 10 Gratt. (Va.), 405; Hale v. Bronsann, 10 Gratt., 418; Staais v. Board, ib., 400; Brooklin Winfield v. Newton Ry. Co., 72 N. Y., 245.\nRecognition of defendant by legislature, does not affeet the question. It had no power to create by recognition\u2014 only by general law.\nAct of July 23, 1868, prohibited incorporation of any \u25a0 railroad within ten miles of complainant\u2019s'route. Section 21.\nThe act of 1879 in conflict with section 25, Art. Y, Const, of 1874\nLegislative recognition invalid for want of grantee. O. & Y. R. R. Co. v. Plumas Co., 37 Cal., 355 ; Brooklin Wiufield v. Newton R. R., 75 N. Y., \u2014. It can not revive what is gone. The People v. Manhattan Co., 9 Wend., 351; The People v. Kingston Turnpike Co., 23 Wind., 193.\nAct of 1879 further in violation of Article XII,, sections 2 and 6, and Article X, sections 25 and 26, Const, of 1874.\nRecognition of governor and state officers of no avail. The People v. The Phcenix Bank, 24 Wend., 431-2. Besides, the recognition\u2019 was under an unconstitutional act. The State v. L. R., P,B. & N. O. R. R., 31 Ark., 702.\nWhat powers did defendants obtain by purchase under sale?\nFranchises can not be mortgaged without legislative authority. The Commonwealth v. Smith, 10 Allen, 448,*. Atkinson v. Marietta R. R., 15 Ohio St., 21; 1 Jones on M., section 124.\nConceding that the franchise may have been susceptible of mortgage, what passed? The entire surveyed line of railroad within surveyed limits. Eldredge v. Smith, 34 Vert, 484, 92; Vermont Central R. R. v. Burlington, 28-Vert., 196. No map, surveys, nor deeds had been filed showing the line. There was nothing ascertained for the operation of the mortgage. Seymour v. Canandaigua Railroad, 23 Barber, 306. Corporate right to make survey did not pass by sale. Chaffer v. Hudeling, 27 La. An., 608 ;. Randolph and Delaware Railroad v. Delaware and Randolph Railroad, 18 N. J. Eq., 559 ; 20 Am. Railway Reports, 423 ; Col. v. C. P. and I. Railroad, 10 Ohio St., 385. Union Pacific Railroad v. Lincoln Co., 1 Dillon, 325.\nAgain, defendants acquired no rights at foreclosure sale-because no portion of the work was done.in five years, and it was not completed within ten. Silliman v. Fredericksburg Railroad, 27 Gratt., 126; sec. 3417. Gantt\u2019s Digest.\nIt was the main line, n.ot the branches, which should have-been completed to fulfill the requirements of the act. There was no corporate existence when the foreclosure decree was rendered. Act of July 23, 1868. Complainants-' not parties to that decree and not estopped.\nActing as such, does not make a corporation de facto. DeWitt t. Hastings, 40 N. Y. Sup. Ct., 463; ib., 69 N. Y., 518; U. S. Digest, vol. 7, p. 178. Under general act corporation can not be created by estoppel. Boyce v. Methodist Church, 46 Md., 372.\nThe transfer of stock to those who reorganized complainant company,-did not require as between parties, the approval of the company. Duke v. Cahawba Nav. Co., 10 Ala.,, 82; Chambers Ins. Co. v. Smith, 11 Pa. St., 120; Choteau Springs Co. v. Harris, 20 Mo., 382; Eames v. Wheeler, 19 Pick., 442; Stone v. Haekett, 12 Gray, 227; Bargate v. .'Shortridge, 31 EDg. Law and Eq., 44.\nAct of July 23,1868,unconstitutional from divers defects, :and irregularities in its passage.\nThe same contended with regard to the act of December '9,1874.\nLast act unconstitutional also, because it endeavors to \u25a0confer corporate powers upon mere purchasers, not incorporate, nor required to become so. Const, of 1874, Art. XII, \u25a0secs. 2, 6; State v. Sherman, 15 Ohio St.; also because it is a special act, Const, of 1874 (supra)-, Atkinson v. M and C. R. R., 15 Ohio St., 36; San Francisco v. S. Y. W. W; 48 \u25a0Cal., 494; also because it revived forfeited corporate rights, without attaching proper conditions. Const, of 1874, Art. XII, sec. 1; Art. XXII, sec 8; Brooklin Winfield v. Newton R. R., 72 N. Y., 245 ; ib., 75 N. Y.\nAlso for other reasons.\nWaiving, however, all objections to the organization of the L. R., P. B. and N. Orleans Co., or to defendant or its \u25a0successor by purchase, corporate property can not be lost \u25a0or forfeited by non user, any more than corporate franchise, without judicial declaration. Austin v, Webb, 8 Ohio, 548. The resolution of July 10,1869, is only a license to enter, but no evidence of adverse title, or right to hold. Floyd v. Ricks, 14 Ark., 286 ; Blakeny v. Ferguson, 20 Ark., 560; Burke v. Hale, 7 Ark., 329. A grant can not be divided. 'Statute of limitations does not bar occupation of the line between Pine Bluff and Little Rock. Angel\u00ed on Lim., sec. 401, p. 402.\nThe supposed conveyance to defendant company was void, and had only the effect of an estate at will. Sec. .2960 Gantt\u2019s Digest. It was without consideration, and works no estoppel. Nor does the action of individual stockholders in standing by, or aiding defendants to build their road.\nThe purchase, under the foreclosure sale, was made by Huntington and Adams, who took the deed. No conveyance is shown from them to defendant company. It has no title. Leffingwell v. Elliott, 8 Pick., 456.\nHuntington, for appellees:\nComplainants must show: First, exclusive right, and second, disturbance by defendants.\nThe right must depend on statute, and must be clearly granted. Charles River Bridge v. Warren Bridge, 11 Pfeters, 420. All doubt is in favor of the state. Mills v. St. Clair Co., 8 Howard, 569; Perrine v. The Chesapeake and\" Del. Canal Co., 9 Howard, 172; R. Fred, and Pot. R. R. Co. v. Lisbon R. R. Co., 13 Howard, 71; Minturn V. Larue et al., 23 How., 435; Bridge Proprietors v. Hoboken Co., 1 Wall., 116; Turnpike Co. v. The State, 3 Wall., 210.\nThe same principle adopted by numerous state courts. 27 N. Y., 87; 6 Paige, 554; 3 Sandf. Oh., 625; 16 N. J. Eq., 321; 2 Beasley, 46, 503; 16 N. J. Eq., 419; 5 Cush.,.375; 2 Gray, 1; 21 Vt., 590 ; 27 ib., 140; 4 Zab., 87; 14 111., 314, 273; 13 Ind., 90; 11 Leigh, 42; 11 La., 253; 4 Mich., 861; 9 Watts, 9; 52 Penn. St., 506; 13 Penn. St., 555; 2 Porter, 296; 9 Georgia, 517, 213 ; 31 Mississippi, 679 ; 51. ib., 335 ; 5 Ohio St., 528; 3 Head., 596; 21 Conn., 294.\nSame rule in England. 2 Barn. & Ad., 792; 7 Mann. & G., 253.\nThe charter of complainant does not contain such exclusive grant.\nIf it existed between Little Hock and Napoleon, it would not follow that it existed against a road from Little Rock by Pine Bluff and thence in a direction different from Napoleon. People v. Albany and Vt. R. R. Co., 24 N. Y., 261; Richmond, E. and P. R. R. Co. v. Louisa R. R. Co., 18 Howard, 71; Tuckahoe Canal Co. v. T. and I. R. Railway, 11 Leigh., 42; Pontchartrain Railway Co. v. N. O. and L. P. Railway, 11 La., 253; B. and L. R. R. Co. v. B. and M. R. R. Co., 5 Cush., 375 ; B. and L. R. R. Co. v. S. and L. R. R. Co., 2 Gray, 1.\nAnd the exclusive right granted, must remain, in possession and enjoyment. Kent\u2019s opinion in Livingston et al. v. Van ingen, 9 Johns., 507; High, on In., sec. 573, p. 320.\nActs of complainant showed an intention to abandon all its rights and franchises to defendant, or its parent company. It is now estopped from demanding this injunction by acquiescence and laches.\nThe claim is stale. Smith v. Clay, adm., 645. Silliman v. Railroad Company, 94 U. S., 811; and authorities there cited by Mr. J. Swayne. Also 21 N. J. Eq., case 283; 20 ib., 580 ; 1 Railway & C. cases, 68 ; 3 Milne & Craig, 784, 711, 730 ; 2 Railway and Company cases, 187 ; 18 Vesey, 515 ; Be Gex. M. & G., 341; 2 Sim., N. S., 78; Johnson, 500; 11 Jur., N. S., 192; 7 Vesey, 230; 5 Johnson Ch., 268, 272; 18 Ohio St., 169 ; 43 Iowa, 301; 6 Allen, 52.\nThis abandonment brought complainant in the purview of section 1, Article XII, constitution of 1874, and it became * dissolved. It amounted, if not to a transfer, at least to a surrender of all its rights and franchises, which is permissible. Angel\u00ed & Ames on Cor., 772, and cases cited; State of Ohio v. Sherman, 22 Ohio St. Rep., 411, 428 ; Railroad Company v. Georgia, 98 U. S., 359 ;\u2022 Clearwater v. Meredith, 1 Wall., 25; State v. Bull, 16 Connecticut, 179.\nThe charter only gave complainant a reasonable time to avail itself of the grant, not a perpetuity. 24 N. Y., 261; Railway Company v. Philadelphia, 101 U. S., 528, 539; Wright v. Nagle, 101 U. S., 791; Stone v. Miss., ib., 814.\nAs to defendant, its existence as a corporation can only be inquired of by the state. 31 Barb., 258 ; 16 Ala., 372; 27 Penn. St-., 380 ; 26 N. Y., 75 : 20 Ark., 204, 443, 495; 31 ib., 476; 58 Penn. St., 399 ; 16 S. & R., 140; 15 N. H., 162; 32 111., 79 ; 1 Md. Oh. Dec,, 107 ; 4 Gill. & J., 1,121; 9 ib., 365, 426 ; 35 Mo., 190 ; 12 Conn., 7; 22 Cal., 434; 24 Vt., 465 ; 7 Grattan, 352; 9 \"Wend., 351; 2 McMull., 439; 24 How,, 278; 10 Otto, 55; Red. on Railways, vol. 1, sec. 18, pp. 63, 66; Angel! & Ames on Cor,, secs. 635, 636.\nNot such irregularities in acts, relied on by defendant as to render them void. Vinsant, Adm. v. Knox, 27 Ark., 266, 278; English v. Oliver, 28 Ark,, 317; Worthen v. Badgett et al., 32 Ark., 496; Smithee Com. v. Garth, 33 Ark,, 1.\nEvidence shows that this suit is not prosecuted by proper authority of complainant company, even if it is still in existence.\nClark $ Williams, for appellees:\nGrant to complainants did not give exclusive right to build on any route. 1 Red. on Railways, 257, 258, see. 8 ; Charles River Bridge v. \"Warren Bridge, 11 Pet. H, S., 420; Thorpe v. Rutland & Burlington Railroad Company, 27 Vt., 140 ; B. & L. Railway, v, S. & L. Railway, 2 Gray, 1; M. Bridge Company v. Utica & Seh. Bridge Company, 6 Paige, 554; Hud. & Del. Canal Company v. New York & Erie Railway, 9 Paige, 323 and n. to p. 260.\nCorporate existence of defendant implied from legislative recognition. 1 Red, on Railways, p. 56, sec. 19; Dillingham v. Snow, 5 Mass., 547; 2 Kent\u2019s Com., 277; 1 Blackstone\u2019s Com., 473. But-want of right in defendant can not give right to complainant. 1 Red. on Railways, p. and n. to pp. 2, 3; Bank of Middleton v. Edgerton, 30 Vt., 182 ; 2 Milne & Keen, 517 ; 10 Ohio St., 385 ; 8 Con\u2022densed Eng. Oh., Ill; 13 Sim , 228 ; 2 B. and Ad., 646; 3 Cal. Reports, 241.\nCorporation de, facto sufficient. Attorney General v. Utica Gas. Co., 2 John. Ch., 371; 2 Vesey\u2019s Reports, 314 ; Nicholas v. Rochester Bank, 11 Paige, 118; People v. Susquehanna Railroad Company, 55 Barb., 314 ; People v. U. Gas Company, 15 John., 378.\nIf defendant wrongfully exercising corporate franchise, remedy is by quo warranto. Angel\u00ed & Ames on Cor., 731 to 739; Corn. v. G. & N. Railroad Company, 20 Penn. St., 518; and the'remedy is exclusive. 14 Abbot\u2019s Pr. (new se\u25a0ries),N. Y. Reports, 191; 10 Barn. & Ores., 230; Dumb-man v. Empire Mills, 12 Barb., 341; Wright v. People, 15 111., 417; Murphy v. Farmers\u2019 Bank, 20 Penn. St., 415 ; 5 Mass., 230 ; Wilcox on Cor, And can only be prosecuted by leave of court. 5 Baer Ab. \u201cInformation\u201d D., p, 180; 2 John,, 184, 190 ; 1 Doug. (Mich.), 59 ; 12 Penn. St., 365 ; Angel\u00ed & Ames on Corp., 739.\nExistence of defendant valid under act of January 8, 1851, and under the mortgage sale it purchased the right to build the road. Pacific Railroad Company v, Lincoln Co,., 1 Dill., 325, 326; Morgan v. La., 3 Otto U. S., 232 ; Rover on Jud. Sales, sec. 516.\nComplainant\u2019s charter fails, to designate any line of road. See Acts. No location has yet been made as required. The charter was forfeited by legislative act expressed in the constitution. Article XII, sec. 1; 1 Green. (Iowa), 553 ; State v. Curran, 7 Eng., 321; 3 Kent\u2019s Com., 306; McLean v, Pennington, 1 Paige, 107,\nComplainant died by non user. White v. Campbell, 5 Humph., 37; Bank v. Petway, 3 Humph., 5,22; Pomeroy v. Bond of Ind., 1 Wall., 23.\nDissolution may be inferred. Angel! & Ames on Cor., secs. 144, 773, p. 777; Woodbridge Union v. Colneys, 13 Ad. & El., 269; 2 Bacon\u2019s Abridg\u2019t, Cor., G-., pp. 481, 4J32.\n. Complainant estopped. 33 Iowa, 422 ; 11 Ohio St., 516 ; 26 Wis., 84; Bigelow on Estoppel, 501; 1 Bay. (S. C.), 239;' 4 Wall., 189. Also barred by limitations. 35 Penn. St,, 191; 14 Ark., 246, 261; 15 Ark., 286, 296 ; 1 McLean, 164; 1 Plow.; 168; 19 Ark., 16, 21; 22 Ark., 272; 21 Ark., 9; 15 La. An., 427 ; 11 ib., 212.\nDefendant has been over seven years in possession under color of title to the whole line. This makes a good bar. 20 Ark., 542 ; 1 Watts. & Sergt. (Penn.), 505.; 13 How., U. S., 472 ; 18 How., 50 ; 7 Hill, N. Y., 488 ; 24 Wend., 611; 18 John., 355; 4 Porter (Ala.), 164; 20 Ark., 508.\nL. A. Pindall, for appellees:\nComplainant company not represented in this suit by proper authority.\nThe injunction asked would be highly detrimental to the public, and complainants have adequate remedy by \u201ctrespass.\u201d\nComplainant\u2019s charter confers no exclusive right. Red, on Rail., vol. 2, secs. 231, 3 and 10; 11 Peters, 543, 6, 7, 8 and 9 ; 4 Peters, 562; 13 How., 81; 23 N. J., 445 and 8,. 451, 5 and 6; 47 Maine, 189, 208; 13 Ind., 90-92, Therefore it can not question defendant\u2019s legitimate existence, so long as it does not trespass on any exclusive right of complainant company.\nDefendant claims existence under the act of December, 1874. The presumption is that the general assembly acted properly in the silence of its journals. 27 Ark., 278, 9, 280 and 1; 28 ib., 319, 20, 21; 32 ib., 419, 422, 516, 520, See also Cooley\u2019s Const. Lim., p. 97 and 170.\nLegal existence of defendant can not be questioned in this proceeding. Angel\u00ed & Ames on Corp., secs. 731 and 777 ; Field on Corp., sec. 498; 32 111., 80 and 82, pp. 108-9-10, 111 and 116; 6 111., 667, 671; 8 Indiana, 392 ; 10 ib., 47; 6 B. Mon., 601; 10 Mo., 123,129-30; 35 ib., 193; 10 Gill & John., 346, 356; 1 Md. Ch., 107,110, 111; 2 Doug. (6 Mich,), 124, 125, 140; 46 Barb. (N. Y.), 361, 4, 5; 16 S. & R., 145; 7 Gran. (Va.), 352; 17 Miss. (9 S. & M.), 432 ; 31 ib., 355; 32 Ga., 273, 291; 15 N. IT., 167; 10 ib., 375 ; 5 Duer (N. Y.), 676; 16 Ala., 372-4-5; 20 Conn., 556; 6 Geo., 131.\nEquity can not declare a forfeiture. 32 111,, 80; 2 John., Ch., 371; 5 ib., 366; 1 N. J. Ch., 186, 369, 377-8, 384-5 ; 13 N. J., 47, 57-8 ; Freeman's Ch. (Miss.), 161, 173 ; 1 Ed. Ch. (N. Y.), 84-8-9; 8 Humph. (Te.), 252; 44 Barb. (N. Y.), 239; Hop. Ch. (N. Y.), 354.\nAny defect cured by grant of lands from state. M., O. & Railroad Company v Y., 20 Ark.; 15 N. H., 168,\nComplainants, stockholders, estopped. Red. Am. R. R. Cases, p. 69; 69 Mo., 256. They utterly abandoned all efforts, and transferred, so far as they could, all their rights and powers to defendant, and stood by and encouraged it to spend money." }, "file_name": "0663-01", "first_page_order": 661, "last_page_order": 686 }