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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. 791, 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 bas 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 dutles 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. 1014.

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 that the Northern Pacific Railroad Company Supreme Court proceeded are thus stated: 'It has deeded to other parties lots in the city may be conceded, we think, that the right of of Spokane situated within the 400 feet of way which embraces the land in dispute was right of way, upon which valuable improvegranted to the Northern Pacific Railroad Com- ments have been made by its grantees.' The pany by act of Congress in 1864, and that, Supreme Court held that the action was barto the title to the right of way thus granted red by the statute of limitations; that the to the Northern Pacific Railroad Company, company was estopped from asserting title the Northern Pacific Railway Company has by reason of the circumstances; and that succeeded. It may also be conceded, for the 'where, through the negligence and laches of purposes of this case, that the Northern Pacif- a railroad company, the occupancy by others ic Railway Company has complied with all of portions of the right of way granted to the terms and provisions of the act of Con- it by the government has ripened into title gress aforesaid, and has constructed its rail- by adverse possession, the company cannot road through the whole of the line of road set up the defense that the right of way was between the points named in the granting act; granted for public purposes only, and that it that a map of definite location was filed would be against public policy to permit eiOctober 4, 1880, prior to the acquiring of the ther its abandonment by the company or the title to the land in question by the defendants acquisition of adverse rights therein by way or their predecessors or grantors; and that of estoppel or of the bar of the statute of said railroad has been continuously operated limitations. As before stated, on the 4th day since its construction. The defendants, an- of May, 1903, the decision of this court in xwering, claim title by patent from the United Northern Pacific Railway Company v. TownsStates government. The land was acquired end, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. under the pre-emption and homestead acts, 1044, was announced. We there ruled that respectively, and all the defendants or their individuals could not, for private purposes, zrantors have been in quiet, peaceful, undis- acquire by adverse possession, under a state furbed, and undisputed possession of said statute of limitations, any portion of a right land for more than 10 years immediately prior of way granted by the United States to a to the commencement of this action, many of railroad company in the manner and under them for nearly 20 years. Valuable improve- the conditions that the right of way was inents have been made by the defendants, granted to the Northern Pacific Railroad the said land consisting of town lots in the Company. At the same time it was not decity of Spokane, and having been platted and nied that such right of way granted through laid out as additions to the city of Spokane the public domain within a state was ameby the defendants or their grantors after nable to the police power of the state. And icquiring title to the same from the United we said: "Congress must have assumed, when States government. During all these years making this grant, for instance, that, in the 110 claim whatever to these lands has been natural order of events, as settlements were made by the appellant. It has stood by and made along the line of the railroad, crossings seen improvements made thereon, and, in of the right of way would become necessary, the case of defendant Brown, an agreement and that other limitations in favor of the was entered into between him and Gen. general public upon an exclusive right of Sprague, who was then the general superin

occupancy by the railroad of its right of tendent of the Northern Pacific Railroad Com.

way might be justly imposed. But such limipany, that they would plat their lots SO tations are in no sense analogous to claim that the streets of

the streets of the addition which of adverse ownership for private use.' We the railroad company was dedicating would are not prepared to overrule that decision, correspond with and meet the streets which and tested by it, the judgment in this case Brown was dedicating to the city of Spokane, must be reversed.” Northern Pacific Railway and the agreement was carried out by ar- Co. v. Ely, 197 U. S. 1, 25 Sup. Ct. 302, 49 ranging the streets in accordance therewith. L. Ed. 639. These streets have been used by the public The Supreme Court of the United States for from 10 to 18 years. The testimony shows being the final arbiter in cases of this charthat, in addition to the improvements which acter, its decisions in the Townsend and Ely these defendants have made upon their lots, Cases are controlling. It may be remarked, many thousands of dollars have been paid by however, that the doctrine of those cases is them for assessments levied upon abutting not materially different from that upon which land for the improvement of streets running the decision of this court in U. P. Ry. Co. v. through this right of way; that the appel- | Kindred, 43 Kan. 134, 23 Pac. 112, was made lant has never paid these assessments; that to depend. In the Kindred Case the right of they have never been assessed to the appel- way granted by Congress to the Union Pacific lant; and that no question has ever been Railway Company was under consideration. raised by the appellant as to the right and The opinion reads: "The company does not obligation of the defendants to pay the same. own the fee. The validity of the act of ConWhile the record does not show that any of gress is not contested, nor is it denied that the lands owned by the defendants were deed- the railway company obtained a grant of ed to them by the appellant, it does show 400 feet through the Indian reservation for its right of war. All that is claimed upon ants, and process be served upon them as such ; the question of title by the defendants is that but the state by which the corporate authority the abutting landowners, by cultivation and

was granted is the proper party to bring such

an action through its proper oflicer, and it is inclosures, have held adverse possession of a well brought when brought against the corporapart of the easement, or right of way of the tion alone. New Orleans Debenture & Co. v. railway company, for a greater length of time

Louisiana. 180 U. S. 320, 21 Sup. Ct. 378, 45

L. Ed. 1.10. than that required by the statute of limita

[Ed. Yote.-For cases in point, see Cent. Dig. tions. In Railway Co. v. Alleen, 22 Kan.

vol. 41, Quo Warranto, § 4-1.] 28.5, 31 Am. Rep. 19, this court decided that

2. COURTS – APPELLATE COURTS ORIGINAL where the railway company has only an JURISDICTION. easement, the proprietor of the soil retains In such an action by the state. the Supreme the fee of the land, and his right for every

Court pon decrecing the incorporation null

and void and ousting the corporation from the purpose not incompatible with the rights of

exercise of corporate power may make such orthe railway company. This rule is recog- der restraining the officers, directors, stockholdnized everywhere. Although the abutting ers, and others assuming to art by virtue of their landowners have cultivated and inclosed part

official relation to the corporation or by the

authority or power thereof as may be necessary of the right of way granted by Congress,

to make the decree of ouster effective. this possession cannot be considered as hos

3. SAME. tile or adverse. It must be regarded as per- In such case the Supreme Court has no missive only. If the fee of the land belongs jurisdiction to grant an injunction against anto the United States, then the abutting land

other corporation or individual to protect the

rights of a third person or corporation. owners can acquire no title or claim by pos

(Syllabus by the Court.) session or limitation. Smith v. Smith, 34

Quo warranto by the state on the relation Kan. 293, S Pac. 385. If the abutting land

of C. C. Coleman, Attorney General against owners own the fee of the right of way,

the Inner Belt Railway Company and the they may use the land in any way not in

Stewart-Peck Sand Company. Judgment of consistent with the paramount rights of the

ouster against the Inner Belt Railway Comrailway company, but such use will not give

pany. them adverse possession so as to confer title." U. P. Ry. Co. T. Kindred, 43 Kan. 134, 23 C. C. Coleman, Atty. Gen., and Angevine l'ac. 112. The term "easement" was not, per- & Cubbison, for plaintiff. Waggener, Doster haps, strictly accurate. The estate granted to & Orr, Johnson & Lucas, and McFadden & the Union Pacific Company is corporeal in

Morris, for defendants. character rather than incorporeal, and corresponds to the limited fee for particular SMITII, J. A careful review of the eviuses, subject to reverter, described in the dence in this case leads this court to make Townsend Case. But the decision is that, the following conclusions : whatever the extent of the railway compa- 1. That in its inception, the incorporation ny's ownership, its right of way is not expos- of the Inner Belt Railway Company was not o to private appropriation by means of effected by the incorporators, in good faith, adverse occupation.

for the purpose of building and operating In view of the decisions quoted the district or of aiding in the building and operation court erred in holding that the defendant ac- of a service railroad. That the principal quired title to the portion of the plaintiff's


motive in obtaining the franchise was to so right of way in controversy by adverse pos- simulate a railway corporation as to deceive session.

the public and the officers and courts of the The contention of the defendant that the state, and thereby to procure the exercise of plaintiff's road was not built upon the line the power of eminent domain to the advanof definite location shown by the map filed tage of private interests, and in fraud of with the Secretary of the Interior is con- the rights of individual property holders. trary to an express finding of fact made by 2. That the Inner Belt Railway Company the trial court.

has had no capital stock subscribed in good The judgment of the district court is re- faith, and since its incorporation has failed versell, and the cause remanded, with direc

to comply with every requirement of section tion to enter judgment for the plaintiff. All 1293, Gen. St. of 1901. That it has, in fact, the Justices concurring.

no capital, no stockholders, no general office, or general officers, That it has permit

ted others to use its name and franchise in (76 Kan. 413)

procuring the condemnation of private propSTATD ex rel. COLEMIX, Atty. Gin., v.

erty for private and not public use, and, INNER BELT RY. CO. et al.

after the condemnation of such private prop(Supreme Court of Kansas. Oct. 6. 1906. erty, has allowed such property to be used Rehearing Denied Nov. 22, 1:30.)

for private and not public purposes. That 1. Quo) WARRANTO ---CORPORATIONS-PARTIES. the allegations in the petition as the

For the purpose of procuring a dearen en- fraudulent organization and incorporation of joining a corporation from acting as such on

the Inner Belt Railway Company and its ihe ground of the nullity of its organization, it is not necessary that the individual corpora

fraudulent conduct thereafter are true. It tors or officers of the company be made defend. is contended that the state in bringing this action against the Inner Belt Railway cor- ! corporation, on the ground of the nullity of poration in its corporate name is estopped the organization; in other words, on the from denying the existence of the corpora- ground that it has no right to be a corporation, and for the same reason the petition tion, and that it is not a corporation de states no cause of action. The de facto ex- jure. For that purpose it is not necessary istence of the corporation is expressly ad- that the individuals who were corporators mitted, and a copy of its charter is attached or officers of the company be made defendto the petition. But it is alleged and proven ants and service of process be made upon that such charter was procured for an il- them." This decision is based upon the follegal and wrongful purpose, and that the lowing provisions of the Louisiana statute, (orporation has not since fulfilled any pur- following the provision authorizing the Atpose for which it was chartered by the state, torney General to bring the action in the and has abused the powers conferred in that name of the state, to wit: "First, when any practically its sole act as a corporation has person shall usurp, intrude into or unlawbeen to loan its name to enable private per- fully holil or exercise any public office or sons to wrongfully divest property owners of franchise within this statute; or Third, when their rights through condemnation proced- any associ:ution or number of persons shall ings. In suppert of this contention People act within this state as it corporation withex rel. v. Rensselaer and Saratoga Rld. Co., out being duly incorporate l.” Our statute 15 Wend. (X. Y.) 113, 30 m. Dec. 33 ; l'eo- is not radically dissimilar. In specifying ple ex rel. v. City of Spring Valley et al., the grounds for the action it reads: "Third. 129 Ill. 169), 21 X. E. S13, and other (ses are

When any association or number of persons cited. We think these all distinguishable

sh:ul act within this state as a corporation, from the case at bar, in that the fraud in without being legally incorporated. Fourth. procuring incorporation was not in issue, When any corporation do or admit acts which although the language of the courts in the amount to a surrender or to a forfeiture of decisions overreaching the issue seems to be their rights and privileges as a corporation, in point. In People v. Vilk Exchange, Limit- or when any corporation abuses its power mal IX. 9.) 30 N. E. 830, and same (ase or exercises powers not conferred by law." 39 X. E. 1062, 1.3 im. St. Rep. 609, 27 L. R.

It will be observed that the third subdivi.1. 4:37, which was decided since the cases

sion of the Louisiana statute and the third citeil, the New York Court of Appeals held, subdivision of our statute are essentially the in an action against the corporation, in its same with only a slight change of wording. corporate name, that a complaint which stat- We are content to follow the logic of the el the fact of incorporation, “but that it Debenture Case and the Milk Exchange Case Was fraudulently incorporated in pursuance

(supra i rather than the refined technicality of an unlawful combination" states a (ause of of the opposing theory. It seems too much to :(tion, and the corporation was ousteil. say that because an association of persons There was also in the complaint a charge has procured a charter of incorporation for that the sole business of the corporation an ostensibly lawful purpose, but really for had been the unlawful control of prices for an unlawful purpose, and thus becomes a milk, it huiving, ostenswly, been incorporated corporation de facto, if the state, in an action for the purpose of buying and selling milk. to deprive it of its wrongfully acquired powIn the case of New Orleans Debenture, etc.,

er. calls it into court by its corporate name Co. 1. Louisiana, 180 U. S. 320, 21 Sup. Ct. the state thereby conclusively admits its 378, 4.) L. Ed. 5.50, which was an action in legal corporate existence. In other words, the nature of quo warranto brought by the the mere summoning of a corporation into Attorney General of Louisiana in the name court to answer the charge that it was ilof the state against the Debenture Company legally incorporateil, effectually estops the to oust it from acting as a corporation on

state from having the charge tried and dethe ground of the nullity of its corporation termined. However cunningly devised may it is held: “For the purpose of procuring be any superstructure which rests upon fraud a decree enjoining a corporation from acting

as its foundation, it can be demolished by as such on the ground of the nullity of its

the law. organization, it is not necessary that the As to the question whether the state is the individual corporators or officers of the com- proper party plaintiff to maintain this action pany be made defendants, and process be

it is sufficient to say that section 5150, Gen. served upon them as such: but the state St. of 1901, expressly authorizes it and the by which the corporate authority was granted

former decisions of this court have recog. is the proper party to bring such an action nized the procedure. As to the prohibition through its proper officer, and it is well prayed against the Stewart-Peck Sand Combrought when brought against the corpora

pany this court has no original jurisdiction tion alone.” In the opinion written by Jus- ; in injunction except so far as is necessary tice Peckham in the Debenture ('ase above, to protect and enforce its jurisdiction and the court says: “The state can therefore decrees, and no independent relief can be treat this de facto corporation as such, for granted to this company. It is decreed and the purpose of calling it into court, and ask. adjudged that the incorporation of the Inner ing for a decree enjoining it from acting as a Belt Railway Company is null and void for fraud practiced by the incorporators in pro- one upon which Elmer Tindall was riding, curing such incorporation; that said incor- causing his death. poration was illegal; that said corporation In avoidance of its liability the defendant is ousted and debarred from exercising any pleaded the following contract between it corporate powers; that the officers, direct- and Elmer Tindall, entered into before it adors, stockholders, and agents of said cor- mitted him upon its trains as a student brakeporation and all other persons acting under man, and alleged that it was under the terms the authority thereof are enjoined and re- and conditions of this contract that Tindall strained from exercising any power or trans- was upon its trains when he was killed : acting any business as or for such corporation

“Sante Fé or under any supposed power or authority therefrom.

"(Insert name of Railway Company.) The costs of this action will be taxed

“Application to Learn Work of Freight against the Inner Belt Railway Company. Brakeman or Fireman, and Release. All the Justices concurring.

"Whereas, I, the undersigned, Elmer Tin

dall, residing at Hoisington, in the state of i han. 519)

Kansas, and being 25 years of age, desiring

to learn the work necessary to fit myself for ATCHISON, T. & S. F. RY. CO. v. FRONK.

the occupation of a brakeman on freight (Supreme Court of Kansas. Nov. 10, 19906.)

trains, have applied to Atchison, Topeka & 1. MASTER AND SERVANT RAILROAD EN

Santa Fé Railway Company for an opporPLOYÉS. A student brakeman, who, in considera

tunity of learning said work, and to that tion of being permitted to ride on a railway end have requested the privilege of working company's freight train to observe and learn

on and about the locomotives, trains and cars the duties of a freight brakeman, agrees to perform service on its engines, trains, and cars,

of said railway company without expectation while learning such duties, is an employé of or promise of receiving wages or any pay the company.

whatever for work so done during such time. [Ed. Note.-For cases in point, see Cent. Dig. and without being considered as an employé vol. 34, Master and Servant, $$ 1-3, 147, 148.]

of said company during said time; and 2. SANE -- INJURIES-EXEMPTIONS FROM LIA

whereas, the railway company is willing to BILITY. Under the statutes of this state a contract

grant me the privilege above applied for on entered into by such einployé exempting the the representation and statement above made, company from all liability for damages which

but on account of the dangers to which I may he may sustain in consequence of the negligence

be exposed, also requires that the railway of the company, its agents, servants, or employés, is against public policy, and void. company, its officers and agents, shall be re

[Ed. Note.-For cases in point, see Cent. Dig. lieved from all liability for damage, injury vol. 34, Master and Servant, $$ 166–170.]

or death sustained by me while so working. Burch, J., dissenting.

or while riding, walking or standing on or (Syllabus by the Court.)

about such locomotives, trains or cars, or

while on or about the property or premises of Error from District Court, Stafford Coun

the railway company; now, therefore, in ty; J. W. Brinckerhoff, Judge.

consideration of said company granting me Action by C. A. Fronk, administrator of

the permission and privileges hereinbefore Elmer Tindall, against the Atchison, Topeka

mentioned, I do hereby agree to and do here & Santa Fé Railway Company. Judgment

by assume all dangers of such work and risks for plaintiff, and defendant brings error.

of injuries which may be sustained by me in Aftirmed.

or about such work, whether the same may be A. A. Hurd, O. J. Wood, W. R. Smith, and caused by or arise from the negligence of the 1. A. Scott, for plaintiff in error. D. A. railway company or of the officers, agents or Banta and T. W. Moseley, for defendant in servants thereof, or otherwise, or which I (rror.

may receive from any cause whatsoever

during the term of my connection with said GREENE, J. This action was commenced company in learning the work aforesaid; and by C. A. Fronk, administrator of the estate I hereby release and forever discharge said of Elmer Tindall, deceased, to recover dam- Atchison, Topeka & Santa Fé Company, and ages for the death of Tindall alleged to have the officers and agents thereof, from any and been occasioned by the negligence of the sery- all claims, demands, suits or liabilities of any ants and employés of the defendant, the kind for death or for any injury that I may Atcuison, Topeka & Santa Fé Railway Com- sustain, whether the same be caused by or pany. It is alleged in the petition that at the arise from the negligence of the said railway time Elmer Tindall received the injuries company, or of the officers, agents or emfrom which he died, he was in the service ployés thereof, or otherwise, during the term of the defendant as a student brakeman on a of my connection with said company in learnfreight train; and that through the negli- ing the work aforesaid, while upon or gence of the agents, servants, and employés about such locomotives, trains or cars, or of the defendant company, there was a col- while walking or standing on or about the ligion between another freight train and the same, or while on or about any such property

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