But 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, also sections 5 and 22, for the full powers. The defendant 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.

A statutory forfeiture requires no judicial declaration. The right vests in the state immediately on the event. Oakland R. R. v. O. V. 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; Staats v. Board, ib., 400; Brooklin Winfield v. Newton Ry. Co., 72 N. Y., 245.

Recognition of defendant by legislature does not affect the question. It had no power to create by recognition-only by general law.

Act of July 23, 1868, prohibited incorporation of any railroad within ten miles of complainant's route. Section 21.

The act of 1879 in conflict with section 25, Art. V., Const. of 1874.

Legislative recognition invalid for want of grantee. O. & V. R. R. Co. v. Plumas Co., 37 Cal., 355; Brooklin Winfield v. Newton R. R., 75 N. Y., It cannot revive what is gone. The People v. Manhattan Co., 9 Wend., 351; The People v. Kingston Turnpike Co., 23 Wend., 193.

Act of 1879 further in violation of Article XII., sections 2 and 6, and Article X, sections 25 and 26, Const. of 1874.

Recognition of governor and state officers of no avail. The People v. The Phoenix Bank, 24 Wend., 431-2. Besides, the recognition was under an unconstitutional act. The State v. L. R., P. B. & N. O. R. R., 31 Ark., 702.

What powers did defendants obtain by purchase under sale? Franchises cannot 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.

Conceding 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.

Again, 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's Digest.

It was the main line, not the branches, which should have been completed to fulfil 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.

Acting as such, does not make a corporation de facto. DeWitt v. Hastings, 40 N. Y. Sup. Ct., 463; ib. 69 N. Y. 518; U.S. Digest, vol. 7, p. 178. Under general act corporation cannot be created by estoppel. Boyce v. Methodist Church, 46 Md., 372.

The 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. Hackett, 12 Gray, 227; Bargate v. Shortridge, 31 Eng. Law and Eq., 44.

Act of July 23, 1868, unconstitutional from divers defects, and irregularities in its passage.

The same contended with regard to the act of December 9, 1874.

Last act unconstitutional also, because it endeavors to confer corporate powers upon mere purchasers, not incorporate, nor required to become so. Const. of 1874, Art. XII, secs. 2, 6; State v. Shermon, 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 Fran cisco v. S. V. W. W; 48 Cal., 494; also because it revived forfeited corporate rights, without attaching proper conditions. Const. of 1874, Article XII,, sec. 1; Art. XXII, sec. 8; Brooklin Winfield v. Newton R. R., 72 N. Y., 245; ib., 75 N. Y.

Also for other reasons.

Waiving, however, all objections to the organization of the L. R., P. B. and N. Orleans Co., or to defendant or its successor by purchase, corporate property cannot be lost or 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 cannot be divided. Statute of limitations does not bar occupation of the line between Pine Bluff and Little Rock. Angell on Lim., sec. 401, p. 402. The supposed conveyance to defendant company was void, and

had only the effect of an estate at will. Sec. 2960 Gantt's 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.

The 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.

Huntington, for appellees:

Complainants must show: First, exclusive right, and second, disturbance by defendants.

The right must depend on statute, and must be clearly granted. Charles River Bridge v. Warren Bridge, 11 Peters, 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. The same principle adopted by numerous state courts. 27 N. Y. 87; 6 Paige, 554; 3 Sandf. Ch. 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 Ill., 314, 273; 13 Ind. 90; 11 Leigh. 42; 11 La. 253; 4 Mich. 361; 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 Óhio St. 528; 3 Head. 596; 21 Conn. 294.

Same rule in England. 2 Barn. & Ad. 792; 7 Mann. & G. 253. The charter of complainant does not contain such exclusive grant.

If it existed between Little Rock 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, F. and P. R. R. Co. v. Louisa R. R. Co., 13 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.

And the exclusive right granted, must remain, in possession and enjoyment. Kent's opinion in Livingston et al. v. Van Ingen, 9 Johns. 507; High. on In., sec. 573, p. 320.

Acts 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.

The 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. 530; 1 Railway and C. cases, 68; 3 Milne and Craig, 784, 711, 730; 2 Railway and Company cases, 187; 18 Vesey, 515; De Gex. M. and 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.

This 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. Angell and 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; Clearwater v. Meredith, 1 Wall. 25; State v. Bull, 16 Connecticut, 179.

The 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. Š. 791; Stone v. Miss. ib. 814.

As 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. and R. 140; 15 N. H. 162; 32 Ill. 79; 1 Md. Ch. Dec. 107; 4 Gill. and 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; Angell and Ames on Cor., secs. 635, 636.

Not 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.

Evidence shows that this suit is not prosecuted by proper authority of complainant company, even if it is still in existence.

Clark and Williams, for appellees.

Grant to complainants did not give exclusive right to build on any route. 1 Red. on Railways, 257, 258, sec. 8; Charles River Bridge v. Warren Bridge, 11 Pet. U. S. 420; Thorpe v. Rutland and Burlington Railroad Company, 27 Vt., 140; B. and L. Railway, v. S. and L. Railway, 2 Gray, 1; M. Bridge Company v. Utica and Sch. Bridge Company, 6 Paige, 554; Hud. and Del. Canal Company v. New York and Erie Railway, 9 Paige, 323 and n. to p. 260.

Corporate existence of defendant implied from legislative recognition. 1 Red. on Railways, p. 56, sec. 19; Dillingham v. Snow, 5 Mass. 547; 2 Kent's Com. 277; 1 Blackstone's Com. 473. But want of right in defendant cannot give right to complainant. Red. on Railways, p. and n. to pp. 2, 3; Bank of Middleton v. Edgerton, 30 Vt. 182; 2 Milne and Keen, 517; 10 Ohio St. 385;

1

8 Condensed Eng. Ch. 111; 13 Sim. 228; 2 B. and Ad. 646; 3 Cal. Reports, 241.

Corporation de facto sufficient. Attorney General v. Utica Gas Co. 2 John. Ch. 371; 2 Vesey's 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.

If defendant wrongfully exercising corporate franchise, remedy is by quo warranto. Angelland Ames on Cor. 731 to 739; Corn v. G. and N. Railroad Company, 20 Penn. St. 518; and the remedy is exclusive. 14 Abbot's Pr. (new series), N. Y. Reports, 191; 10 Barn. and Cres. 230; Dumbman v. Empire Mills, 12 Barb. 341; Wright v. People, 15 Ill. 417; Murphy v. Farmers' Bank, 20 Penn. St. 415; 5 Mass. 230; Wilcox on Cor. And can only be prosecuted by leave of court. 5 Baer Ab. "Information" D. p. 180; 2 John. 184, 190; 1 Doug. (Mich.) 59; 12 Penn. St. 365; Angell and Ames on Corp. 739.

Existence 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.

Complainant's 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's Com. 306; McLean v. Pennington, 1 Paige, 107.

Complainant died by non user. White v. Campbell, 5 Humph. 37; Bank v. Petway, 3 Humph. 522; Pomeroy, v. Bond of Ind. 1 Wall. 23.

Dissolution may be inferred. Angell and Ames on Cor. secs. 144, 573, p. 777; Woodbridge Union v. Colneys, 13 Ad. and El. 269; 2 Bacon's Abridg't, Cor. G. pp. 481, 482.

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 How. 168; 19 Ark. 16, 21; 22 Ark. 272; 21 Ark. 9; 15 La. An. 427; 11 ib. 212.

Defendant 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.

L. A. Pindall, for appellees:

Complainant company not represented in this suit by proper authority.

The injunction asked would be highly detrimental to the public, and complainants have adequate remedy by "trespass."