tion of its business, although such offices are located in a foreign state, and it has been held that it may buy mines under some circumstances.21 § 455 (394). Power to acquire real estate-Instances of denial of power. We have called attention to the fact that the power to acquire property by purchase is broader than the power to acquire it by the virtue of the right of eminent domain,22 and it is obvious that cases bearing on the power to acquire by condemnation cannot be accepted as safe guides where the question is as to the power to obtain land by purchase. But those cases do serve to mark the general nature of the power, so that it is proper to cite them in this connection, as we are here discussing the general power to acquire land. It is held that a railroad company cannot acquire land by condemnation for the construction of a temporary track while the main track is building,28 but it seems v. Robards, 60 Tex. 545, 48 Am. Rep. 268. See also Abraham v. Oregon, &c. R. Co., 37 Ore. 495, 60 Pac. 899, 64 L. R. A. 391, 82 Am. St. 779; Jacksonville, &c. R. Co. v. Hooker, 160 U. S. 514, 40 L. ed. 515; State v. Illinois Cent. R. Co., 246 Ill. 188, 92 N. E. 814; Chicago, &c. R. Co. v. Board, 48 Wis. 666, 5 N. W. 3; Milwaukee, &c. R. Co. v. Board, 29 Wis. 116. 21 Lyde v. Eastern, &c. R. Co., 36 Beav. 10, 17. See Attorney-General v. Great Northern, &c. R. Co., 6 Jurist N. S. 1006. But compare Wilks v. Georgia Pac. R. Co., 79 Ala. 180. It probably can not do so in ordinary cases under the present law. See generally Attorney-General v. Great Eastern, &c. R. Co., L. R. 11 Ch. D. 449, 505; Western Union, &c. Co. v. Rich, 19 Kans. 517, 27 Am. Rep. 159; Moses v. Boston, &c. R. Co., 24 N. H. 71, 55 Am. Dec. 222; Smith v. Nashua, &c. R. Co., 27 N. H. 86, 95, 59 Am. Dec. 364; New York, &c. R. Co. v. Kip, 46 N. Y. 546, 7 Am. Rep. 385; Holmes v. Eastern Counties, &c. R. Co., 3 K. & J. 675; Flanagan v. Great Western, &c. R. Co., 7 Eq. 116; Shrewsbury, &c. R. Co. v. Stour Valley, &c. R. Co., 2 De G. M. & G. 866; East, &c. Docks R. Co. v. Dawes, 11 Hare 363; Cother v. Midland R. Co., 2 Phill. 469. 22 The rights acquired by purchase are regarded as more complete than those acquired by condemnation. Thus where a railroad company acquires land upon which to build its road by purchase of the fee, it is not bound, in its dealings with such land, by restrictions upon its authority to use its "right of way." Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S. W. 453. 23 Currier v. Marietta, &c. R. Co., 11 Ohio St. 228; Gray v. Liverpool, &c. R. Co., 9 Beav. 391. to us that the doctrine of the cases cited goes too far. We think that where a temporary track is essential to the proper construction of the main line or to its operation, it is competent for the company to acquire land for that purpose. It has been held not competent for a railroad company to condemn land for the erection of dwellings for the workmen employed by it.24 It is clear that a railroad company has no implied power to acquire lands by eminent domain or otherwise for speculative purposes, or to prevent competition, or to aid in collateral enterprises remotely connected with the road.25 § 456 (395). Title to real estate is in the company.-Title to real estate acquired by a railroad company vests in the company and not in its stockholders. The stockholders have an interest in corporate property, which interest is represented by their shares of capital stock, but they are not the owners of the real estate of the company. The corporation while composed of its shareholders is a distinct legal entity having an individuality of its own.26 It is of itself a person although it is the creature of statute. We do not mean to say that the term "corporations" always includes natural persons, but so far as the ownership of property is concerned a corporation such as a railroad company is a person. Conveyances of corporate real estate must be executed by the company,27 and, ordinarily, actions for injuries to its 24 State v. Mansfield, 23 N. J. L. 510, 57 Am. Dec. 409; Nashville, &c. R. Co. v. Cowardin, 11 Humph. (Tenn.) 348; Eldridge v. Smith, 34 Vt. 484. But see Ante, § 354, note 20. 25 McClure v. Missouri, &c. R. Co., 9 Kans. 373; Baltimore, &c. R. Co. v. Union R. Co., 35 Md. 224, 6 Am. Rep. 397; Pacific R. Co. v. Seeley, 45 Mo. 212, 100 Am. Dec. 369; Rensselaer &c. R. Co. v. Davis, 43 N. Y. 137; New York, &c. R. Co. v. Kip, 46 N. Y. 546, 7 Am. Rep. 385; Iron R. Co. v. Ironton, 19 Ohio St. 299; Vermont, &c. R. Co. v. Vermont Cent. R. Co., 34 Vt. 1. See also 26 Rand v. Hubbell, 115 Mass. 461, 15 Am. Rep. 121; Regina v. Arnaud, 16 L. J. Q. B. 50. 27 Ante, § 339. There are cases of a very peculiar nature in which equity will enforce a conveyance property must be prosecuted by the corporate entity. There are cases where, upon the wrongful refusal of the corporation to act, equity will interfere for the protection of the stockholders, but these cases form exceptions to the general rule. § 457 (396). Title once vested not divested because property subsequently becomes unnecessary.-Where property at the time of its acquisition is reasonably necessary for the legitimate corporate purposes the fact that the necessity subsequently ceases does not always make the holding wrongful nor divest the title. The question of the right to hold property acquired by a railroad company must, as rule, be determined by the situation and condition at the time of its acquisition, and complete title once acquired is not taken away by future events. There is no wrong in holding real estate where a complete title is rightfully obtained, although changes wrought by subsequent action, taken under authority of law, may have the effect to render the property not necessary to the attainment of corporate objects or the exercise of corporate functions. But the general doctrine stated does not ordinarily apply where the property is acquired by virtue of the right of eminent domain and the fee is not taken. If, however, the law authorizes the taking of the fee and a fee is taken, it is not divested by the fact that it has ceased to be necessary to the accomplishment of corporate objects.28 If an absolute title vests, no matter how acquired, the company, it is obvious, secures an indefeasible estate. § 458 (397). Effect of conveyance to corporation of land it has no power to hold.-A conveyance to a corporation of land it has no power to hold is voidable at the suit of the state, but it is not void.29 Such a conveyance is so far effective that it vests in the corporation a title which will empower it to convey the land, provided the conveyance is made prior to a judgment against it in a proceeding by the state. The authorities declare the title acquired by the corporation to be similar to that obtained by an alien in a jurisdiction where aliens are forbidden to hold land.30 8459 (398). Right of foreign corporation to hold real estate.It was adjudged in an early case by the Supreme Court of the United States that a corporation of one state cannot be the owner of land in another state without the assent of the state in which the land lies.31 But the corporation may hold such lands, if it was said: "Where a corporation is incompetent by its charter to take a title to real estate a conveyance to it is not void, but voidable, and the sovereign alone can object. It is valid until assailed by a direct proceeding instituted for that purpose." See, to the same effect National Bank v. Whitney, 103 U. S. 99, 26 L. ed. 443; Swope v. Leffingwell, 105 U. S. 3, 26 L. ed. 939; Fortier v. New Orleans, &c. Bank, 112 U. S. 439, 5 Sup. Ct. 234, 28 L. ed. 764; Reynolds v. Crawfordsville, &c. Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. ed. 733; Smith v. Sheeley, 12 Wall, (U. S.) 358, 361, 20 L. ed. 430; Myers v. Croft, 13 Wall. (U. S.) 291, 20 L. ed. 562; Long v. Georgia Pac. R. Co., 91 Ala. 519, 8 So. 706, 24 Am. St. 931; Plummer v. Chesapeake, &c. R. Co., 143 Ky. 102, 136 S. W. 162, 33 L. R. A. (N. S.) 362; 3 Thomp. Corp. § 2390, et seq. But the rule that no one but the state can question it is not entirely without exceptions in unusual cases, and it has been held that an executory contract may be rescinded where the corporation has no power to take the property. Coleman v. San Rafael, &c. Co., 49 Cal. 517. See however where contract is executed. 3 Thomp. Corp. (2nd ed.) § 2400. 30 Fritts v. Palmer, 132 U. S. 282, 10 Sup. Ct. 93, 33 L. ed. 317, citing Cross v. DeValle, 1 Wall. (U. S.) 1, 13, 17 L. ed. 515; Governeur v. Robertson, 11 Wheat. (U. S.) 332, 8 L. ed. 614; National Bank v. Matthews, 96 U. S. 621, 628, 25 L. ed. 188; Phillips v. Moore, 100 U. S. 208, 25 L. ed. 603. See also Leazure v. Hillegas, 7 Sergt. & R. (Pa.) 313; Goundie v. Northampton Water Co., 7 Pa. St. 233; Hickory Farm, &c. Co. v. Buffalo, &c. R. Co., 32 Fed. 22; Hamsher v. Hamsher, 132 Ill. 273, 23 N. E. 1123, 8 L. R. A. 556; Russell v. Texas, &c. R. Co., 68 Tex. 646, 5 S. W. 686; Hubbard v. Worcester Art Museum, 194 Mass. 280, 80 N. E. 490, 9 L. R. A. (N. S.) 689, 693, and see note to this case as last reported referring to cases on both sides as to whether others may question the power of a corporation to take by bequest or devise. 31 Runyan v. Coster, 14 Pet. (U. S.) 122, 10 L. ed. 382; Cowell v. Colorado, &c. Co., 100 U. S. 55, 25 has power from the state that created it,32 unless the right is denied by the state in which the land is situated.33 In one of the cases it is held that in favor of a grantee a foreign corporation will be presumed to have power to hold real estate under the laws of the state by which it was incorporated.34 The state in which the land lies may impose such limitations and restrictions upon the right of a foreign corporation to acquire and hold land situated within its borders as it deems proper.35 The doctrine of most of the cases is that an individual cannot successfully assail the right of a foreign corporation to hold land.36 L. ed. 547; Carroll v. East St. Louis, 67 Ill. 568, 16 Am. Rep. 632; United States, &c. Co. v. Lee, 73 Ill. 142, 24 Am. Rep. 236; Barnes v. Suddard, 117 Ill. 237, 7 N. E. 477; Pennsylvania Co., &c. v. Bauerle, 143 Ill. 459, 33 N. E. 166. 32 Metropolitan Bank v. Godfrey, 23 Ill. 579; Diamond, &c. Co. v. Powers, 51 Mich. 145, 16 N. W. 314. See Blair v. Perpetual Ins. Co., 10 Mo. 559, 47 Am. Dec. 129; Ohio, &c. Co. v. Merchants', &c. Co., 30 Tenn. 1, 53 Am. Dec. 742, 8 Thomp. Corp. §§ 6685-6688. 33 New York, &c. Dock v. Hicks, 5 McLean (U. S.) 111, Fed. Cas. No. 10204; Northern Transportation, &c. Co. v. Chicago, 7 Biss. (U. S.) 45, Fed. Cas. No. 10324; New Hampshire, &c. Co. v. Tilton, 19 Fed. 73; Lathrop v. Commercial Bank, 38 Ky. 114, 33 Am. Dec. 481; Thompson v. Waters, 25 Mich. 214, 12 Am. Rep. 243; Lumbard v. Aldrich, 8 N. H. 31, 28 Am. Dec. 381; White v. Howard, 46 N. Y. 144; Lancaster v. Amsterdam, &c. Co., 140 N. Y. 576, 35 N. E. 964, 24 L. R. A. 322; Alward v. Holmes, 10 Abbott (N. Car.) 96; Baltimore, &c. S. Co. v. McCutchen, 13 Pa. St. 13; State v. Boston, &c. R. Co., 25 Vt. 433; Claremont Bridge 34 Tarpey v. Deseret, &c. Co., 5 35 Diamond, &c. Co. v. Powers, 51 Mich. 145, 16 N. W. 314. Even if absolute prohibition would be an interference with interstate commerce, requiring a railroad company to become incorporated in the state in which the land lies is not such an unlawful interference or regulation. Plummer v. Chesapeake, &c. R. Co., 143 Ky. 102, 136 S. W. 162, 33 L. R. A. (N. S.) 362. Amsterdam, &c. 36 Lancaster V. Co., 140 N. Y. 576, 24 L. R. A. 322; Bank of Toledo V. International Bank, 21 N. Y. 542; Methodist, &c. Church v. Pickett, 19 N. Y. 482. See also Hickory Farm Oil Co. v. Buffalo, &c. R. Co., 32 Fed. 22; note to Hanna v. Kelsey Realty Co. (145 Wis. 276), in 33 L. R. A. (N. S.) 355, with which compare Plummer v. Chesapeake, &c. Ry. Co., 143 Ky. 102, 136 S. W. 162, 33 L. R. A. (N. S.) 362. |