use in his business his family name, provided he uses it honestly and without artifice or deception, although the business he carries on is the same as the business of another person of the same name previously established, which has become known under that name to the public, and although it may appear that the repetition of that name in connection with the new business of the same kind may produce confusion, and subject the other party to pecuniary injury. The right of a person to use his family name in his business is regarded as a natural right, of which he cannot be deprived, by reason simply of priority of use by another of the same name. In the bill of sale from Charles S. Higgins to the plaintiff the former consented that, so long as he should be allowed a salary of $15,000 per year for his services, he would give to the company the full benefit of his receipts, processes, etc., and that, "so long as he may be employed at the salary aforesaid, he, said Higgins, would refrain from making or selling soap in the city of Brooklyn except for said company"; thereby, by implication, reserving the right to engage in the business if the plaintiff should terminate his employment. But the question as to the right of the defendant to assume the name of the "Higgins Soap Company," or to do business in that name, is not affected by any contract entered into between Charles S. Higgins and the plaintiff. The defendant is a distinct person in the law from Charles S. Higgins, one of its corporators and officers. It had entered into no contract with the plaintiff, nor does it derive any of its rights from Charles S. Higgins. It stands in respect to the question involved in this litigation in the same situation as if Charles S. Higgins had never been a corporator or stockholder. It cannot appropriate the name or the trade-marks or the business of the plaintiff by any simulation or deceit, because the law prohibits such appropriation by any person, natural or artificial; but the fact that Charles S. Higgins was active in organizing the defendant, or that he may have been actuated in doing so by feelings hostile to the plaintiff or by a desire to injure its business, is, as we conceive, irrelevant to the case. The sole test of liability is whether the acts done, either in organizing the defendant or in the prosecution of its business subsequently, invaded any right of the prior corporation, or exceeded the boundaries of fair competition. On the other hand, we think it is equally clear that the defendant derives no additional immunity from the fact that the name of "Higgins," in its corporate name, was that of one or more of its corporators, or that Charles S. Higgins, or any one of that name, might engage in the soap business under the family name, or that Charles S. Higgins and the other corporators of the same name had consented to its use. The right of a man to use his own name in his own business the law protects, even when such use is injurious to another who has established a prior business of the same kind, and gained a reputation which goes with the name. But in such cases the courts require that the name shall be honestly used, and they permit no artifice or deceit, designed or calculated to mislead the public and palm off the business as that of the person who first established it and gave it its reputation. Croft v. Day, 7 Beav. 84; Holloway v. Holloway, 13 Beav. 209; Cement Co. v. Le Page, 147 Mass. 206, 17 N. E. 304. It is well settled that an exclusive right may be acquired in the name in which a business has been carried on, whether the name of a partnership or of an individual; and it will be protected against infringement by another who assumes it for the purposes of deception, or even when innocently used, without right, to the detriment of another; and this right, which is in the nature of a right to a trade-mark, may be sold or assigned. Levy v. Walker, 10 Ch. Div. 436; Hoxie v. Chaney, 143 Mass. 592, 10 N. E. 713; Bassett v. Percival, 5 Allen, 345; Cement Co. v. Le Page, supra; Millington v. Fox, 3 Mylne & C. 338. In respect to corporate names the same rule applies as to the names of firms or individuals, and an injunction lies to restrain the simulation and use by one corporation of the name of a prior corporation which tends to create confusion, and to enable the later corporation to obtain, by reason of the similarity of names, the business of the prior one. The courts interfere in these cases, not on the ground that the state may affix such corporate names as it may elect to the entities it creates, but to prevent fraud, actual or constructive. The names of corporations organized under general laws, and in most other cases, are chosen by the promoters, and it would be an easy way to escape from the obligations which are enforced as between individuals if a corporation were granted immunity by reason of their corporate character. The principle upon which courts proceed in restraining the simulation of names which have become trade-marks, and have come to designate the business of a particular person or company, is stated in Lee v. Haley, 5 Ch. App. 155,-an action to restrain the use by the defendant of the name of the "Guinea Coal Company," in his business. "I quite agree [said Gifford, L. J.] that they [plaintiffs] have no property in the name [Guinea Coal Company], but the principle upon which the cases on the subject proceed is not that there is property in the word, but that it is a fraud on a person who has established a trade, and carries it on under a given name, that some other person should assume the same name, or the same name with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name." The cases are not infrequent in which the use of corporate names has been restrained on the principle of the trade-mark cases. Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manuf'g Co., 37 Conn. 278; Massam v. Food Co., 14 Ch. Div. 748; Celluloid Manuf'g Co. v. Cellonite Manuf'g Co., 32 Fed. 94; Newby v. Railway Co., 1 Deady, 609, Fed. Cas. No. 10,144; William Rogers Manuf'g Co. v. Rogers & Spurr Manuf'g Co., 11 Fed. 495; Le Page Co. v. Russia Cement Co., 2 C. C. A. 555, 51 Fed. 942. If established for 50 years, and carried on in the same place. Among the labels which were transferred to the plaintiff was one containing the words "Higgins Soap," and the word "Higgins" was placed upon many of the labels. It cannot be doubted upon the findings that the reputation of "Higgins Soap," when the defendant corporation was organized, applied to, and designated to the trade, the soap manufactured by the plaintiff and its predecessors. The promoters of the defendant, knowing the history of the business established by Higgins, Sr., in 1846, its transfer to the plaintiff, that the product was known to the trade as "Higgins Soap," that the business had become very valuable, and that large sums had been expended in advertising it, proceeded to organize the defendant corporation under the name of the "Higgins Soap Company," and to manufacture soap in the same city where the plaintiff's business was carried on. The inference seems irresistible that the defendant assumed its corporate name so that it should carry the impression that it was the manufacturer of "Higgins Soap," so well known to the public. But if the name was assumed in good faith, and without design to mislead the public and acquire the plaintiff's trade, the defendant, knowing the facts, must be held to the same responsibility as if it acted under the honest impression that no right of the plaintiff was invaded. The names are not identical, but, as said by Bradley, J., in Celluloid Manuf'g Co. v. Cellonite Manuf'g Co., supra: "Similarity, not iden tity, is the usual recourse where one party seeks to benefit himself by the good name of another." In that case the learned and experienced judge who sat therein expressed the opinion that the use of the corporate name of the defendant should be restrained, Whether the court will interfere in a particular case must depend upon circumstances, -the identity or similarity of the names, the identity of the business of the respective corporations, how far the name is a true description of the kind and quality of the articles manufactured or the business carried on, the extent of the confusion which may be created or apprehended, and other circumstances which might justly influence the judgment of the judge in granting or withholding the remedy. Whether, upon equita. ble principles, the remedy should have been awarded in this case upon the facts proved and found is the question in this case. the right of the plaintiff to relief depended exclusively upon the comparison of the corporate names of the parties, and the infer ences to be drawn from such comparison alone, and without reference to any extrinsic facts, it might well be doubted whether the names are so similar that the court could find that confusion and injury would be likely to arise. But the case does not rest alone upon the inferences from such comparison. It would naturally be inferred from the names that both parties were corporations. The name of "Higgins" appears in each. The name of the plaintiff does not itself indicate the business of the plaintiff | although there was a much greater dissimi corporation, while the name of the defendant describes its business. But, while the plaintiff's name does not describe its business, its product has come to be known to the trade as "Higgins Soap," and to the public the name of the product identified the plaintiff as the manufacturer of this product, and the company came to be known and called, to some extent, the "Higgins Soap Company." The use of the name "Higgins" in connection with the business was valuable, because of its use for a great number of years by the father of Charles S. Higgins, and subsequently by the son, under which a large business had been built up, and by reason of the large sums which had been expended in advertising the product. The name of the plaintiff in connection with these facts indicated to dealers in soap that the article known as "Higgins Soap" was manufactured by the plaintiff. The manufacture had been larity between the names there in question than exists between the names of the parties here. As between these parties, the case is, we think, the same as if the word "Soap" was written into the plaintiff's name, and its corporate designation was "Chas. S. Higgins Soap Company." The evidence shows that confusion has arisen, and it is a reasonable presumption that, if the defendant is permitted to continue to carry on the business of soap-making under its present name, the public will be misled, and the plaintiff's trade diverted, the extent of such diversion increasing with the increase of the defendant's business. We think the plaintiff, upon the facts found and proved, was entitled to relief by injunc tion. The judgment should be reversed, and a new trial granted. All concur, except HAIGHT, J., not sitting. Judgment reversed. (140 Ind. 468) DAVIS v. CLEVELAND, C., C. & ST. L. RY. CO. (Supreme Court of Indiana. Jan. 18, 1895.) EASEMENT BY PRESCRIPTION-INJUNCTION AGAINST OBSTRUCTION-JURY TRIAL-NEW TRIAL AS OF RIGHT. 1. An easement of way cannot be acquired by prescription, unless the use was under claim of right, and with the knowledge of the owner of the servient estate. 2. Where the complaint, in an action to restrain a railroad company from making an embankment in its roadbed so as to thereby cut off plaintiff's easement of way under the track, fails to allege an adverse claim by defendant, the action is one for an injunction, and not to quiet title, and therefore a trial by jury is properly denied. 3. In such a case, though the title to realty is incidentally involved, a new trial as of right (Rev. St. 1894, § 1076; Rev. St. 1881, § 1064) is not permitted. right of drainage for its railroad." That said railroad was constructed, and the pos session of a way was taken, by said predecessor. That in said construction a trestlework was built 62 feet long, and 7 feet and 3 inches from the ground to the bottom of the superstructure. In the year 1873 said deed was recorded, and in 1875 Gray conveyed the lands, through which said railroad had been so constructed, to the appellant. That ever since the construction of said railroad the said Gray and the appellant, each during his ownership of said adjacent lands, used continuously a passageway under said trestle for their live stock and teams in passing from either side of said railroad to the other upon said lands, and in the course of operating said lands as a farm. That said use was without agreement, permission, or hindrance from the Appeal from circuit court, Montgomery appellee or its predecessor, and was without county. Action by Isaac Davis against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. There was a judgment denying plaintiff part of the relief demanded, and he appeals. Affirmed. John S. Shrum, for appellant. J. T. Dye and Elliott & Elliott, for appellee. HACKNEY, J. The appellant's complaint against the appellee was in three paragraphs, in each of which he sought to enjoin the appellee from making an embankment in its roadbed at a point where it had maintained a trestlework. In two of said paragraphs it was alleged that the embankment would wholly obstruct a private passageway under said trestlework, enjoyed by the appellant for more than 20 years; and in the third paragraph it was alleged that said embankment would destroy a tile drain maintained by the appellant for his adjacent lands. Upon the issue formed the court rendered a special finding, in which the following facts were stated: In September, 1869, John S. Gray owned the lands through which the appellee's railway runs, and conveyed to the appellee's predecessor, by deed of general warranty, "the land, right of way, and any claim of right on the part of either said Gray or the appellant. It is found, also, that the appellee intended to and had taken steps towards filling the space occupied by said trestlework with an embankment upon which to carry its railroad, thereby cutting off any opportunity to pass from either side of said railroad to the other, at that point, upon the level of the adjacent lands. There are further findings, having relation to the destruction of the appellant's tile drain across the line of railroad, but, as the conclusion and decree were in appellant's favor upon that element of the case, such facts need not be here stated. The court stated as its conclusion of law, upon the facts so found, that the appellee should not be enjoined from obstructing said passageway. The questions arising in this court have reference to this conclusion of the trial court. The theory of the suit was that the appellant held an easement by prescription in a way across the appellee's right of way, which easement the appellee was about to obstruct. The argument of appellant's learned counsel covers the field of easement by grant, by necessity, and by prescription; but, it is needless to say, our investigations must be confined to the theory of the case as defined |