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Court of the United States said: "Following decisions of this court construing grants of rights of way similar in tenor to the grant now being considered (New Mexico v. United States Trust Co., 172 U. S. 171, 181, 19 Sup. Ct. 128, 43 L. Ed. 407; St. Joseph & Denver City R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578), it must be held that the fee passed by the grant made in section 2 of the act of July 2, 1864, 13 Stat. 375, c. 225. But, although there was a present grant, it was yet subject to conditions expressly stated in the act, and also (to quote the language of the Baldwin Case) 'to those necessarily implied, such as that the road shall be

used for the purposes designed.' Manifestly, the land forming the right of way was not granted with the intent that it might be absolutely disposed of at the volition of the company. On the contrary, the grant was explicitly stated to be for a designed purpose, one which negated the existence of the power to voluntarily alienate the right of way or any portion thereof. The substantial consideration inducing the grant was the perpetual use of the land for the legitimate purposes of the railroad, just as though the land had been conveyed in terms to have and to hold the same so long as it was used for the railroad right of way. In effect the grant was of a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted. This being the nature of the title to the land granted for the special purpose named, it is evident that to give such efficacy to a statute of limitations of a state as would operate to confer a permanent right of possession to any portion thereof upon an individual for his private use, would be to allow that to be done by indirection which could not be done directly, for, as said in Grand Trunk Railroad v. Richardson, 91 U. S. 454, 468, 23 L. Ed. 356, 'a railroad company is not at liberty to alienate any part of its roadway so as to interfere with the full exercise of the franchises granted.' Nor can it be rightly contended that the portion of the right of way appropriated was not necessary for the execution of the powers conferred by Congress, for, as said in Northern Pacific Railroad Co. v. Smith, 171 U. S. 261, 275, 18 Sup. Ct. 794, 799, 43 L. Ed. 157, speaking of the very grant under consideration, 'by granting a right of way 400 feet in width, Congress must be understood to have conclusively determined that a strip of that width was necessary for a public work of such importance.' Neither courts nor juries, therefore, nor the general public, may be permitted to conjecture that a portion of such right of way is no longer needed for the use of the railroad and title to it has vested in whomsoever chooses to occupy the same. The whole of the granted right of way must be presumed to be necessary

for the purposes of the railroad, as against a claim by an individual of an exclusive right of possession for private purposes. To repeat, the right of way was given in order that the obligation to the United States assumed in the acceptance of the act might be performed. Congress having plainly manifested its intention that the title to, and possession of, the right of way should continue in the original grantee, its successors and assigns, so long as the railroad was maintained, the possession by individuals of portions of the right of way cannot be treated without overthrowing the act of Congress as forming the basis of an adverse possession which may ripen into a title good as against the railroad company. Of course, nothing that has been said in any wise imports that a right of way granted through the public domain within a state is not amenable to the police power of the state. Congress must have assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of the railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use. As our construction of the act of Congress determines the question presented for decision, it becomes unnecessary to review the cases which have been called to our attention supporting on the one hand or denying on the other the broad contention that title by adverse possession, under state statutes of limitation, may be acquired by individuals to land within the right of way of a railroad. None of the cases adverted to as holding the affirmative of the proposition even suggest that the rule would be applicable where its enforcement would conflict with the powers and duties imposed by law on a railroad corporation in a given case. As here we find that the nature of the duties imposed by Congress upon the railroad company and the character of the title conferred by Congress in giving the right of way through the public domain are inconsistent with the power in an individual to acquire, for private purposes, by limitation, a portion of the right of way granted by Congress, the cases in question are inapposite." Northern Pacific Ry. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044.

In February, 1905, the Supreme Court of the United States reversed the decision of the Supreme Court of the state of Washington in the case of Northern Pacific Railway Company v. Ely, 25 Wash. 384, 65 Pac. 555, 54 L. R. A. 526, 87 Am. St. Rep. 766, which involved the precise question now at issue. The reversal was predicated solely upon the authority of the Townsend Case. The opin

ion reads: "The facts on which the State Supreme Court proceeded are thus stated: 'It may be conceded, we think, that the right of way which embraces the land in dispute was granted to the Northern Pacific Railroad Company by act of Congress in 1864, and that, to the title to the right of way thus granted to the Northern Pacific Railroad Company, the Northern Pacific Railway Company has succeeded. It may also be conceded, for the purposes of this case, that the Northern Pacific Railway Company has complied with all the terms and provisions of the act of Congress aforesaid, and has constructed its railroad through the whole of the line of road between the points named in the granting act; that a map of definite location was filed October 4, 1880, prior to the acquiring of the title to the land in question by the defendants or their predecessors or grantors; and that said railroad has been continuously operated since its construction. The defendants, answering, claim title by patent from the United States government. The land was acquired under the pre-emption and homestead acts, respectively, and all the defendants or their grantors have been in quiet, peaceful, undisturbed, and undisputed possession of said land for more than 10 years immediately prior to the commencement of this action, many of them for nearly 20 years. Valuable improveinents have been made by the defendants, the said land consisting of town lots in the city of Spokane, and having been platted and laid out as additions to the city of Spokane by the defendants or their grantors after acquiring title to the same from the United States government. During all these years no claim whatever to these lands has been made by the appellant. It has stood by and seen improvements made thereon, and, in the case of defendant Brown, an agreement was entered into between him and Gen. Sprague, who was then the general superintendent of the Northern Pacific Railroad Company, that they would plat their lots so that the streets of the addition which the railroad company was dedicating would Correspond with and meet the streets which Brown was dedicating to the city of Spokane, and the agreement was carried out by arranging the streets in accordance therewith. These streets have been used by the public for from 10 to 18 years. The testimony shows that, in addition to the improvements which these defendants have made upon their lots, many thousands of dollars have been paid by them for assessments levied upon abutting land for the improvement of streets running through this right of way; that the appellant has never paid these assessments; that they have never been assessed to the appellant; and that no question has ever been raised by the appellant as to the right and obligation of the defendants to pay the same. While the record does not show that any of the lands owned by the defendants were deeded to them by the appellant, it does show

that the Northern Pacific Railroad Company has deeded to other parties lots in the city of Spokane situated within the 400 feet of right of way, upon which valuable improvements have been made by its grantees.' The Supreme Court held that the action was barred by the statute of limitations; that the company was estopped from asserting title by reason of the circumstances; and that 'where, through the negligence and laches of a railroad company, the occupancy by others of portions of the right of way granted to it by the government has ripened into title by adverse possession, the company cannot set up the defense that the right of way was granted for public purposes only, and that it would be against public policy to permit either its abandonment by the company or the acquisition of adverse rights therein by way of estoppel or of the bar of the statute of limitations.' As before stated, on the 4th day of May, 1903, the decision of this court in Northern Pacific Railway Company v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044, was announced. We there ruled that individuals could not, for private purposes, acquire by adverse possession, under a state statute of limitations, any portion of a right of way granted by the United States to a railroad company in the manner and under the conditions that the right of way was granted to the Northern Pacific Railroad Company. At the same time it was not denied that such right of way granted through the public domain within a state was amenable to the police power of the state. And we said: 'Congress must have assumed, when making this grant, for instance, that, in the natural order of events, as settlements were made along the line of the railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use.' We are not prepared to overrule that decision, and tested by it, the judgment in this case must be reversed." Northern Pacific Railway Co. v. Ely, 197 U. S. 1, 25 Sup. Ct. 302, 49 L. Ed. 639.

The Supreme Court of the United States being the final arbiter in cases of this character, its decisions in the Townsend and Ely Cases are controlling. It may be remarked, however, that the doctrine of those cases is not materially different from that upon which the decision of this court in U. P. Ry. Co. v. Kindred, 43 Kan. 134, 23 Pac. 112, was made to depend. In the Kindred Case the right of way granted by Congress to the Union Pacific Railway Company was under consideration. The opinion reads: "The company does not own the fee. The validity of the act of Congress is not contested, nor is it denied that the railway company obtained a grant of 400 feet through the Indian reservation for

its right of way. All that is claimed upon the question of title by the defendants is that the abutting landowners, by cultivation and inclosures, have held adverse possession of a part of the easement, or right of way of the railway company, for a greater length of time than that required by the statute of limitations. In Railway Co. v. Alleen, 22 Kan. 285, 31 Am. Rep. 19, this court decided that where the railway company has only an easement, the proprietor of the soil retains the fee of the land, and his right for every purpose not incompatible with the rights of the railway company. This rule is recognized everywhere. Although the abutting landowners have cultivated and inclosed part of the right of way granted by Congress, this possession cannot be considered as, hostile or adverse. It must be regarded as permissive only. If the fee of the land belongs to the United States, then the abutting landowners can acquire no title or claim by possession or limitation. Smith v. Smith, 34 Kan. 293, 8 Pac. 385. If the abutting landowners own the fee of the right of way, they may use the land in any way not inconsistent with the paramount rights of the railway company, but such use will not give them adverse possession so as to confer title." U. P. Ry. Co. v. Kindred, 43 Kan. 134, 23 Pac. 112. The term "easement" was not, perhaps, strictly accurate. The estate granted to the Union Pacific Company is corporeal in character rather than incorporeal, and corresponds to the limited fee for particular uses, subject to reverter, described in the Townsend Case. But the decision is that, whatever the extent of the railway company's ownership, its right of way is not exposed to private appropriation by means of adverse occupation.

In view of the decisions quoted the district court erred in holding that the defendant acquired title to the portion of the plaintiff's right of way in controversy by adverse possession.

The contention of the defendant that the plaintiff's road was not built upon the line of definite location shown by the map filed with the Secretary of the Interior is contrary to an express finding of fact made by the trial court.

The judgment of the district court is reversed, and the cause remanded, with direc tion to enter judgment for the plaintiff. All the Justices concurring.

(74 Kan. 413)

STATE ex rel. COLEMAN, Atty. Gen.. v. INNER BELT RY. CO. et al.

(Supreme Court of Kansas. Oct. 6, 1906. Rehearing Denied Nov. 22, 1906.)

1. QUO WARRANTO-CORPORATIONS-PARTIES.

For the purpose of procuring a decree enjoining a corporation from acting as such on the ground of the nullity of its organization, it is not necessary that the individual corporators or officers of the company be made defend

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ants, and process be served upon them as such; but the state by which the corporate authority was granted is the proper party to bring such an action through its proper officer, and it is well brought when brought against the corporation alone. New Orleans Debenture & Co. v. Louisiana. 180 U. S. 320, 21 Sup. Ct. 378, 45 L. Ed. 550.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Quo Warranto, § 44.]

2. COURTS - APPELLATE COURTS ORIGINAL JURISDICTION.

In such an action by the state. the Supreme Court upon decreeing the incorporation null and void and ousting the corporation from the exercise of corporate power may make such order restraining the officers, directors, stockholders, and others assuming to act by virtue of their official relation to the corporation or by the authority or power thereof as may be necessary to make the decree of ouster effective. 3. SAME.

In such case the Supreme Court has no jurisdiction to grant an injunction against another corporation or individual to protect the rights of a third person or corporation. (Syllabus by the Court.)

Quo warranto by the state on the relation of C. C. Coleman, Attorney General against the Inner Belt Railway Company and the Stewart-Peck Sand Company. Judgment of ouster against the Inner Belt Railway Company.

C. C. Coleman, Atty. Gen., and Angevine & Cubbison, for plaintiff. Waggener, Doster & Orr, Johnson & Lucas, and McFadden & Morris, for defendants.

SMITH, J. A careful review of the evidence in this case leads this court to make the following conclusions:

1. That in its inception, the incorporation of the Inner Belt Railway Company was not effected by the incorporators, in good faith, for the purpose of building and operating or of aiding in the building and operation of a service railroad. That the principal motive in obtaining the franchise was to so simulate a railway corporation as to deceive the public and the officers and courts of the state, and thereby to procure the exercise of the power of eminent domain to the advantage of private interests, and in fraud of the rights of individual property holders.

2. That the Inner Belt Railway Company has had no capital stock subscribed in good faith, and since its incorporation has failed to comply with every requirement of section 1293, Gen. St. of 1901. That it has, in fact, no capital, no stockholders, no general office, or general officers. That it has permitted others to use its name and franchise in procuring the condemnation of private property for private and not public use, and, after the condemnation of such private property, has allowed such property to be used for private and not public purposes. That the allegations in the petition as to the fraudulent organization and incorporation of the Inner Belt Railway Company and its fraudulent conduct thereafter are true. is contended that the state in bringing this

action against the Inner Belt Railway corporation in its corporate name is estopped from denying the existence of the corporation, and for the same reason the petition states no cause of action. The de facto existence of the corporation is expressly admitted, and a copy of its charter is attached to the petition. But it is alleged and proven that such charter was procured for an illegal and wrongful purpose, and that the corporation has not since fulfilled any purpose for which it was chartered by the state, and has abused the powers conferred in that practically its sole act as a corporation has been to loan its name to enable private persons to wrongfully divest property owners of their rights through condemnation proceedings. In suppert of this contention People ex rel. v. Rensselaer and Saratoga Rld. Co.. 15 Wend. (N. Y.) 113, 30 Am. Dec. 33: People ex rel. v. City of Spring Valley et al., 129 III. 169, 21 N. E. 843, and other cases are cited. We think these all distinguishable from the case at bar, in that the fraud in procuring incorporation was not in issue, although the language of the courts in the decisions overreaching the issue seems to be in point. In People v. Milk Exchange, Limited (N. Y.) 30 N. E. 850, and same case 39 N. E. 1062, 45 Am. St. Rep. 609, 27 L. R. A. 437, which was decided since the cases cited, the New York Court of Appeals held, in an action against the corporation. in its corporate name, that a complaint which stated the fact of incorporation. "but that it was fraudulently incorporated in pursuance of an unlawful combination" states a cause of action, and the corporation was ousted. There was also in the complaint a charge that the sole business of the corporation had been the unlawful control of prices for milk, it having, ostensibly, been incorporated for the purpose of buying and selling milk.

In the case of New Orleans Debenture, etc., Co. v. Louisiana. 180 U. S. 320, 21 Sup. Ct. 378, 45 L. Ed. 550, which was an action in the nature of quo warranto brought by the Attorney General of Louisiana in the name of the state against the Debenture Company to oust it from acting as a corporation on the ground of the nullity of its corporation it is held: "For the purpose of procuring a decree enjoining a corporation from acting as such on the ground of the nullity of its organization, it is not necessary that the individual corporators or officers of the company be made defendants, and process be served upon them as such; but the state by which the corporate authority was granted is the proper party to bring such an action through its proper officer, and it is well brought when brought against the corporation alone." In the opinion written by Justice Peckham in the Debenture Case above, the court says: "The state can therefore treat this de facto corporation as such, for the purpose of calling it into court, and asking for a decree enjoining it from acting as a

corporation, on the ground of the nullity of the organization; in other words, on the ground that it has no right to be a corporation, and that it is not a corporation de jure. For that purpose it is not necessary that the individuals who were corporators or officers of the company be made defendants and service of process be made upon them." This decision is based upon the following provisions of the Louisiana statute, following the provision authorizing the Attorney General to bring the action in the name of the state, to wit: "First, when any person shall usurp, intrude into or unlawfully hold or exercise any public office or franchise within this statute; or Third, when any association or number of persons shall act within this state as a corporation without being duly incorporated." Our statute is not radically dissimilar. In In specifying the grounds for the action it reads: "Third. When any association or number of persons shall act within this state as a corporation, without being legally incorporated. Fourth. When any corporation do or admit acts which amount to a surrender or to a forfeiture of their rights and privileges as a corporation, or when any corporation abuses its power or exercises powers not conferred by law." It will be observed that the third subdivision of the Louisiana statute and the third subdivision of our statute are essentially the same with only a slight change of wording. We are content to follow the logic of the Debenture Case and the Milk Exchange Case (supra) rather than the refined technicality of the opposing theory. It seems too much to say that because an association of persons has procured a charter of incorporation for an ostensibly lawful purpose, but really for an unlawful purpose, and thus becomes a corporation de facto, if the state, in an action to deprive it of its wrongfully acquired power, calls it into court by its corporate name the state thereby conclusively admits its legal corporate existence. In other words, the mere summoning of a corporation into court to answer the charge that it was illegally incorporated, effectually estops the state from having the charge tried and determined. However cunningly devised may be any superstructure which rests upon fraud as its foundation, it can be demolished by the law.

As to the question whether the state is the proper party plaintiff to maintain this action it is sufficient to say that section 5150, Gen. St. of 1901. expressly authorizes it and the former decisions of this court have recognized the procedure. As to the prohibition prayed against the Stewart-Peck Sand Company this court has no original jurisdiction in injunction except so far as is necessary to protect and enforce its jurisdiction and decrees, and no independent relief can be granted to this company. It is decreed and adjudged that the incorporation of the Inner Belt Railway Company is null and void for

fraud practiced by the incorporators in procuring such incorporation; that said incorporation was illegal; that said corporation is ousted and debarred from exercising any corporate powers; that the officers, directors, stockholders, and agents of said corporation and all other persons acting under the authority thereof are enjoined and restrained from exercising any power or transacting any business as or for such corporation or under any supposed power or authority therefrom.

The costs of this action will be taxed against the Inner Belt Railway Company. All the Justices concurring.

(7 Kan. 519)

ATCHISON, T. & S. F. RY. CO. v. FRONK. (Supreme Court of Kansas. Nov. 10, 1906.) 1. MASTER AND SERVANT RAILROAD EM PLOYÉS.

A student brakeman, who, in consideration of being permitted to ride on a railway company's freight train to observe and learn the duties of a freight brakeman, agrees to perform service on its engines, trains, and cars, while learning such duties, is an employé of the company.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1-3, 147, 148.] 2. SAME-INJURIES-EXEMPTIONS FROM LIA

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GREENE, J. This action was commenced by C. A. Fronk, administrator of the estate of Elmer Tindall, deceased, to recover damages for the death of Tindall alleged to have been occasioned by the negligence of the servants and employés of the defendant, the Atchison, Topeka & Santa Fé Railway Company. It is alleged in the petition that at the time Elmer Tindall received the injuries from which he died, he was in the service of the defendant as a student brakeman on a freight train; and that through the negligence of the agents, servants, and employés of the defendant company, there was a collision between another freight train and the

one upon which Elmer Tindall was riding, causing his death.

In avoidance of its liability the defendant pleaded the following contract between it and Elmer Tindall, entered into before it admitted him upon its trains as a student brakeman, and alleged that it was under the terms and conditions of this contract that Tindall was upon its trains when he was killed:

"Sante Fé

"(Insert name of Railway Company.) "Application to Learn Work of Freight Brakeman or Fireman, and Release. "Whereas, I, the undersigned, Elmer Tindall, residing at Hoisington, in the state of Kansas, and being 25 years of age, desiring to learn the work necessary to fit myself for the occupation of a brakeman on freight trains, have applied to Atchison, Topeka & Santa Fé Railway Company for an opportunity of learning said work, and to that end have requested the privilege of working on and about the locomotives, trains and cars of said railway company without expectation or promise of receiving wages or any pay whatever for work so done during such time. and without being considered as an employé of said company during said time; and whereas, the railway company is willing to grant me the privilege above applied for on the representation and statement above made. but on account of the dangers to which I may be exposed, also requires that the railway company, its officers and agents, shall be relieved from all liability for damage, injury or death sustained by me while so working. or while riding, walking or standing on or about such locomotives, trains or cars, or while on or about the property or premises of the railway company; now, therefore, in consideration of said company granting me the permission and privileges herein before mentioned, I do hereby agree to and do hereby assume all dangers of such work and risks of injuries which may be sustained by me in or about such work, whether the same may be caused by or arise from the negligence of the railway company or of the officers, agents or servants thereof, or otherwise, or which I may receive from any cause whatsoever during the term of my connection with said company in learning the work aforesaid; and I hereby release and forever discharge said Atchison, Topeka & Santa Fé Company, and the officers and agents thereof, from any and all claims, demands, suits or liabilities of any kind for death or for any injury that I may sustain, whether the same be caused by or arise from the negligence of the said railway company, or of the officers, agents or employés thereof, or otherwise, during the term of my connection with said company in learning the work aforesaid, while upon or about such locomotives, trains or cars, or while walking or standing on or about the same, or while on or about any such property

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