
    The Junction Railroad Company v. Richard Ruggles.
    Where a land-owner granted a right of way to a railroad company organized' under a charter in perpetuity, and the grant contains no limit as to time, the easement will be perpetual, unless terminated by release or abandonment.
    Where such railroad, with its appurtenances, is subsequently pledged to the state in security for a loan, and, the pledge being forfeited, is sold by the state, he easement passes by the sale, and is vested in the purchaser.
    This result is in no way affected by the fact that the purchase is made, me- • diately or immediately, by another railroad company, if there be legislative authority to make the purchase, and if the original object and consideration of the grant of the easement be not thereby changed or defeated
    
      In chancery.
    Reserved in the district court of Erie county.
    On the 8th day of March, 1836, the general assembly of Ohio passed “ an act to incorporate the Ohio Railroad Company,” *and vested it “ with the right to construct a double or single railroad or way from some suitable point, to be selected, on the east line of the State of Ohio, in the county of Ashtabula, from, at, or near the northeast corner of the county of Ashtabula, and to pass westwardly through the counties of Ashtabula, Geauga, Cuyahoga, Lorain, Huron, Sandusky, Wood, and Lucas, to the Maumee river,” etc.
    And the stockholders were by this act “ created a body corporate, and shall remain a corporation forever, under the name of the Ohio Railroad Company,” with perpetual succession.
    On the second day of January, 1837, Almon Ruggles executed and delivered to the Ohio Railroad Company, an instrument in writing, under seal, but not acknowledged, and attested by but one witness, reciting that “If the Ohio Railroad Company shall locate the road referred to in their charter, through any lands owned or possessed by me, for the consideration of the location of said railroad, I hereby quitclaim to said company so much of said land as ■said company are by their charter authorized to take for the purposes of the location and construction of said road; and the right of immediate possession is hereby given to said company, for the ■consideration above mentioned ; and I further grant to said company, the right of taking and converting to their own use any stone ■or gravel,” etc.
    At the date of this written instrument, Almon Ruggles owned and was in possession of a farm, in the township of Yermillion, Erie county.
    The Ohio Railroad .Company was then, by its charter, authorized to take, for the purposes of the location and construction of its road, a strip one hundred feet wide, across the lands through which it might be located.
    Soon after the date of said written instrument, said company located the road referred to in its charter, through said farm of said Ruggles, and with his consent, and took possession of the roadway, and commenced the construction of the road, when the board of public works of the State of Ohio took possession of the road, as hereinafter mentioned.
    By an act of the general assembly of the State of Ohio, passed *on the 24th day of March, 1837, Swan’s Stat. 559, every railroad company in the state, two-thirds of whose authorized capital stock had been subscribed, became entitled to receive a loan of credit from the state, equal in amount to one-third of such authorized capital stock, “to be delivered to the company in negotiable scrip, or transferable certificates of stock of the State of Ohio,” etc. . . . And “the receipt of such scrip, or any portion of .scrip, by any railroad company, shall operate as a specific pledge of the capital stock, estate, tolls, and profits, of such railroad company, to the State of Ohio, to secure the repayment of the sums advanced in pursuance of this act,” etc. And in case any such oompany should receive such loan, and should “ at any time fail in the punctual payment of the interest on the sums advanced, or in repaying the principal when redeemable, the governor shall be authorized, on behalf of the state, to take possession of the works of said company, and to place them under charge of the board of public works, to hold the same until, by the tolls and profits of the road, or by a lease of the road, engines, cars, and fixtures, or by sale thereof, the state be fully reimbursed.”
    The Ohio Eailroad Company availed itself of the provisions of this act, and made a loan of one hundred and fifty thousand dollars from the state.
    In July, 1842, the railroad company failed to pay the interest on this loan; and in January, 1843, the governor, on behalf of the state, took possession of the road, and all the property and effects of the company that could be found, and placed the same under charge of the board of public works. At the time the road passed into the hands of the state authorities, the right of way had been obtained by the company for most of the distance between the Cuyahoga and Maumee rivers, and considerable work had been done toward constructing the road, in driving piles, building bridges, etc.
    On the 12th day of March, 1815, the general assembly of Ohio passed a joint resolution directing the board of public works to sell to the highest bidder “ all the personal property belonging to the Ohio Eailroad Company that now is or may ^hereafter come into the possession of said board,” . . . and to “ sell and dispose of the whole or part of the right of way, permanent fixtures, and chartered franchises of said company; and the person or persons, or body corporate, becoming the purchaser of such permanent fixtures, right of way, and chartered privileges, may exercise, use, possess, and enjoy the same, or so much thereof as may be purchased, as fully as the same could have been enjoyed by the said Ohio Eailroad Company; provided that said permanent fixtures, right of way, and chartered privileges shall become forfeited to the State of Ohio, if the purchaser shall not, within five years commence, and within ten years complete said road or so much thereof as shall have been purchased by such person or persons, or body-corporate,” etc.
    Under this resolution a sale having been made in December, 1845, by the board of public works, to Ebenezer Lane, of “ all and singular, the rights of way, permanent fixtures, and chartered privileges of the Ohio Eailroad Company, to and in that part of the line of the said Ohio Eailroad which lies between the west bank of the river Cuyahoga and the intersection and termination of the Mad Eiver and Lake Erie Eailroad, in the town of San-dusky, in Erie county, together with ten thousand shares of the capital stock of said company, and all the appendences, appurtenances, rights, privileges, immunities, and incidents belonging te the same,” etc., on the 20th day of February, 1846, said board of public works formally granted, by deed of that date, said rights, fixtures, privileges, stock, etc., to said Lane, and to his successors-forever, subject to the forfeiture mentioned in the said joint resolution.
    By an act of the general assembly passed March 22, 1850, the time fixed by said joint resolution for the commencement and completion of said railroad, was extended for the period of five years for commencing, and ten years for completing the same.
    The Junction Eailroad Company, complainant, being engaged in the exercise of its chartered rights, in constructing a railroad from the city of Cleveland to the west line of the State of Ohio, *to facilitate its object,- purchased, for a valuable consideration, from Lane, the rights, interests, privileges, and stock of the Ohio Eailroad Company, which he acquired by the sale to him by the board of public works.
    In the meantime Almon Euggles died, leaving his son Eichard his devisee as to a part of the farm taken by the Ohio Eailroad Company for the purposes of the location and construction of its road.
    The Junction company located its road across the Euggles farm, on the same strip of land upon which the Ohio Eailroad was loeated. and was about to send its agents there to construct that portion of its road, when the said Biehard Euggles denied the right of tne Junction company to occupy said strip, and threatened to sue it for trespass in case its agents came upon the land.
    Upon this state of facts the Junction company filed its bill, complaining of the action and threats of the said Eichard Euggles, and the hinderance and delay he thereby occasioned it, in the construction of its road, and asking the court to perpetually enjoin the said Euggles, his agents and servants, from interfering with its rights in the premises.
    The case is heard upon bill, answer, replication, exhibits, and testimony.
    
      F. B. Sadler and W F. Stone, for complainant.
    
      J. M. Boot, for defendant.
   Brinkerhoff, J.

The instrument executed by Almon Euggles to the Ohio Eailroad Company, was more than a mere license revocable at will. It wanted but a more formal execution, to render it a legal conveyance of a perpetual easement in such lands as the grantee might appropriate in conformity to its terms. The Ohio Eailroad Company having accepted the grant and complied with the conditions on which it was made, would, by virtue of this instrument, at least be entitled to enforce such legal conveyance; and regarding as done that which ought to he *done, we treat the instrument, for the purposes of this suit, as if it were a formally executed legal conveyance. Wilson v. Chalfant, 15 Ohio, 248. The instrument itself containing no limitation as to time, the duration of the easement granted would be perpetual, unless terminated by a release or abandonment.

The remaining, and, indeed, the decisive question in this case, here presents itself. Was the easement of the Ohio Eailroad Company, thus acquired, of such a nature as to be capable of being pledged in security of a loan, and, on failure to redeem the pledge, of being sold and transferred so as to vest the easement in the purchaser ? or, in other words, was it capable of sale and transfer ?

And here, at the outset of this inquiry, it is important to notice that this easement in the Ohio company originated solely in voluntary contract between it and Almon Euggles. It was not appropriated to the use of the company in the exercise by it of any right of eminent domain delegated by the state to the company, nor has there been, at any time since, any exercise of, or claim to have exercised, such sovereign right, as against the land in question, either by the Ohio company or those who have succeeded, or claim to have succeeded, to its rights. It was purely a matter of contract between Ruggles and the company. Nor are we perplexed in this case by being called on to decide any difficut and important question as to the assignability or otherwise of corporate rights, privileges, enfranchises. The state is no party to this proceeding, her interests or rights are in no way involved in it, nor has her authority ever been invoked or exercised in respect to the subject-matter of this easement, except to enforce the contract of pledge between herself and the Ohio Railroad Company. The possession of corporate franchises, or of a corporate existence, even, was not at all necessary to the validity of the contract between the company and Ruggles, nor, as against Ruggles, to the complete enjoyment of the easement by the company. Had the persons composing the Ohio Railroad Company been nothing more than an unincorporated partnership, it would have been fully competent to make the contract withRuggles which it did make, to have vested in it the easement *which he conveyed; and, as against Raggles, fully to enjoy that easement; that is to say, it would have been competent to construct a railroad over the land covered by the easement, and to rum trains of cars over it, at will, from end to end. All this the company could do without corporate franchises or corporate existence; and the right to do this, and no more, is all that is now claimed, as-against Ruggles, by those who claim to have succeeded to the rights-of the Ohio Railroad Company in respect to the easement granted by him. We are, therefore, freed from all questions of eminent domain and corporate franchise, and, in the determination of the case,. we throw them entirely out of view, and confine ourselves exclusively to an inquiry as to the rights of the original parties and their successors, arising out of the contract between them.

We return, then, to the question: Was this easement capable of transfer? The question seems to be one of first impression. At all events, no case is cited, and we can find none, in which the point has ben adjudicated. The subject-matter of the question — a right of way for a railroad — is itself new ; and the principles, long ago established, in regard to rights of way personal or in gross, and rights of way appurtenant -to real estate, have no direct application to this new class of rights of way. It, we apprehend, is sui generis, and must be governed by reasons peculiar to itself, and the lights-which may be derived from the analogies it may bear to the old classes of easements of this kind, whose incidents have been already fixed and determined. It seems to be settled that “ if a right of way be in gross, or a mere personal right, it can not be assigned to-any other person, nor transmitted by descent. It dies with the person, and it is so exclusively personal, that the owner of the right can not take another person in company with him. But when a. right of way is appendant of annexed to an estate, it may pass by assignment when the land is sold to which it was appurtenant.” 3 Kent, 420. Why this distinction ? Because (I apprehend) the grant being silent on the subject of a transfer of the easement, the grant simply of a personal right does not in its nature presuppose or imply a right of transfer, or give rise to any presumption that *such a right must have entered into the intention of the parties. But where the easement is annexed to real estate, the simple grant of such an easement fairly and reasonably justifies a presumption, in the absence of -anything in the terms of the grant to the contrary, that the duration of the easement was intended to run parellel with the estate to which it was made appurtenant, and to be subject to its incidents and liabilities. This easement was made appurtenant to a railroad, and was granted to a corporation whose sole function was the construction, ownership, and management of a railroad. Now a railroad, strictly speaking, is neither a person nor real estate; yet it presents strong features of analogy to real estate —particularly in those qualities out of which arises the distinction above referred to. Like real estate, a railroad is — or at least the Ohio Railroad was — expected to be of perpetual duration. 33 Ohio L. L. 320, sec 3. Although the body corporate, which is nothing but a fiction of law, instituted for purposes of policy and convenience, remains the same, yet its actual ownership, like that of real estate, is subject to constant change by all the modes of transfer known to the law. A right of way appendant to a farm, is granted or reserved as being necessary or convenient for the occupancy and use of the farm, and is therefore transferable with the farm. A railroad is an entire thing ; and the entire right of way for a railroad is made up out of a union of many rights derived from many individual owners; some by contracts, involving various duties and obligations, and others by appropriation, under a delegated right of eminent domain. Any one of them is appurtenant to all the remainder — necessary to the enjoyment of all the remainder— and therefore, from analogy to rights of way appendant to real estate, alienable, we think, with the thing to which it is appurtenant.

If, then, the easement in question be, in its nature, capable of alienation, the means or medium of transfer, whether voluntary or enforced, or the party to whom the sale is made, whether a natural" person or a body corporate, can not affect the question. They can in no way affect the interests, and therefore in no way the rights, of the original grantor, or those claiming under him. *As to him and them, the saléis valid and binding, provided the purchaser had legal capacity to make the contract of purchase, and no condition, either expressed or fairly implied, on which the grant wasmade, has been thereby defeated or violated.

The legal capacity of E. Lane, the intermediate purchaser, and of the Junction Railroad Company, the present claimant of the casement, to purchase a right of way from any person authorized to sell, will not be questioned.

Has any condition of the grant, expressed or implied, been violated ?

The only express condition named in the grant is, that the grantee should locate its road across the land of the grantor. This was done by the original grantee. The grant was, however, we-think, subject to the further conditions, fairly implied from the nature of the grant, that a railroad should be constructed and operated on the same line substantially as that contemplated by the charter of the original grantee. This, too, seems to have been done.

On the sale of the Ohio Railroad by the state, Lane, under whom the complainant claims title to this easement, purchased but a section of the road; and it is a least an open question whether, by virtue of that sale, any of the corporate franchises of the Ohio Railroad Company passed and were vested, either in him alone or in conjunction with the purchasers of the other sections of the road. Now, assuming that Lane owned but a portion of the road, and was vested with none of its corporate franchises, and that, therefore, he had not the power to complete and to operate the road, in conformity with the implied conditions of the grant, it may be argued, and in the consideration of this case it has been suggested, that this want of power in Lane himself to fulfill the conditions of -the grant, would work a forfeiture or avoidance of the easement. But, we are satisfied, there is nothing in this argument.

Suppose, that in contemplation of the construction of this road, but before any corporate body whatever had been chartered for that purpose, Lane, in his individual capacity, had volunteered to pass along the line of the contemplated road, and had purchased *from individual land owners, paid for, and received from them grants of the right of way for just such a railroad as that authorized by the charter of the Ohio Railroad Company, on the conditions that such road should'be located and constructed over the lands of the grantor. Suppose, that immediately after the right of way was thus acquired, a company were incorporated to construct just such a road; that Lane should transfer the rights of way held by him to the corporation, and that a railroad should thereupon be constructed, in all respects, like that provided for in tho ■conditions of the grants of rights of way, could it be contended, with any degree of plausibility, that these grants would be void, merely because, at the time they were made, Lane had not, in his own person, then and there the power to fulfill their future conditions? We think not. So that the conditions of the grant are actually fulfilled, surely the agency through which their fulfillment .is accomplished can not affect the validity of the grant itself. For there is nothing of which the grantor can complain; he is wholly uninjured.

Again, the charter of the Ohio Railroad Company provided that its road should be completed within ten years. No railroad on the line designated in that charter, was completed within that limit; ■but that of the Junction company and its extensions were completed within the time to which that limit was extended by subsequent legislation; and it is contended that one of the implied conditions of the grant of the right of way in question was, that the road should be completed within the time fixed by law, at the date of tho grant.

We do not think so. The time limited for the completion of the road was fixed as a condition in the charter of the company, by the state, for her benefit and security. This benefit and security she hail a right to waive at her own will; and it seems to us that when Almon Ruggles granted a right of way to the Ohio Railroad Company, without any stipulation as to the time in which its conditions should be performed, he must be held to have made the grant subjeet to, and in contemplation of, the right of the state to extend the time for the completion of the road. Doubtless, a right of way, like any other right of property, maybe ^abandoned; and' such abandonment, which depends on the intention of the owner, may be inferred from the lapse of time or other circumstances indicative of an intention on the part of the grantee to abandon ; but in this case we see no sufficient evidence of such intention.

The Ohio Railroad Company was chartered by the state, for the purpose of constructing a railroad, running east and west, along the south shore of lake Erie. To attain this object, and to have the road located across his land, Almon Ruggles granted the right of way in question. The company made a loan from the state, and pledged its road, with its appurtenances, in security. The company having failed in its contract with the state, the road was sold by the state, and in conformity to the terms of the pledge, to E. Lane, who sold the same to the Junction company, which was by law authorized to make the purchase. The Junction company has stepped into the place of the Ohio company, and has constructed its road, so far as the land of Ruggles is concerned, on the precise1 line where the Ohio company had located its road, and on substantially the same line throughout, so as to afford the same facilities of transportation and travel.

On this state of fact we are. unable to see how or wherein the estate of Ruggles has been injured by the transfer, or that anything has happened or been done since the grant, which, had it been foreseen by him at the time of the grant, could reasonably have induced him to withhold it. And the attempt of his devisee, therefore, now to exact further compensation, is, we think, wrongful; and to prevent this, the powers of a court of equity are properly invoked.

Decree for complainant.

Barteet, C. J., and Swan, Bowen, and Scott, JJ., concurred. 
      
       Judge Bowen’s term of office expired on the 9th day of February, 1858, when he was succeeded by Judge Sutliff.
     