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Statement of the Case.

Ketchum and Hiles, who were officers of the railroad company during its period of construction, had procured numer ous donations of land from citizens who were interested in the construction of the road, along its line, intended to be for the use and benefit of the railroad company, and to assist it in such construction. The fundamental allegation of the bill is, that these defendants, representing to the persons who made the donations that they were officers of the road, and soliciting these grants for the benefit of the road, took the conveyances to themselves individually; that they did this in a fraudulent manner, by making the grantors in the conveyances believe that they, as the officers of the company, could receive the conveyances for the benefit of the road; and that either the grantors did not really know to whom the conveyances were made, or were induced to believe that when made the grantees held the lands as a trust for the benefit of the road. These defendants not recognizing this trust, and the conveyances on their faces being merely conveyances to the individuals, either separately or collectively, to wit: to Ketchum, Kelly and Hiles, who now refuse to convey to the company or to admit its right to the lands, this suit is brought to have a declaration of the trust made by the court and a decree ordering conveyances by the defendants of the land to the corporation.

It is further alleged that the mortgage in process of foreclosure in the court under which Case is acting as receiver covered all the lands of the corporation, and would cover these lands if the title of the corporation in them was established.

The defendants Kelly, Ketchum and Hiles filed answers, in which they denied all fraud or deception, denied that they held the lands in trust for the railroad company, and denied the right of plaintiff to any relief. A decree for want of an answer was taken pro confesso against the Arcadia Mineral Spring Company; replications were filed to the answers, the case was put at issue as regards the three principal defendants, and an immense mass of testimony, documentary and otherwise, was taken.

Statement of the Case.

The Circuit Court on the hearing was of opinion that the conveyances made by various persons to Kelly and Ketchum and Hiles of the lands described in the bill were made by the grantors and received by the defendants as contributions to the railroad company to aid in the construction of its road; and that if the railroad company had authority by law to receive such grants and to hold such real estate, it would be entitled to the relief sought in the bill in this case. But being also of opinion that, by the laws of Wisconsin, and under its charter, it could only receive and hold lands for the defined purposes of the road, it held that only such lands as were necessary and proper for the immediate use of the road could be recovered in this suit. Case v. Kelly, 13 Am. and Eng. Railroad Cas., 70. It therefore entered the following interlocutory decree:

"This day came the parties, by their counsel, and, on consideration of the pleadings and proofs in this cause and the arguments of counsel thereon, it is ordered, adjudged and decreed by the court that the complainant is entitled to recover from the defendants the title and possession of all such lands mentioned in the bill of complaint as are required by the railroad company for right of way, depot buildings and other necessary railroad purposes, as described and limited in the charter of the company, and that the bill of complaint as to all other portions of the lands described therein be dismissed.

"For the purpose of ascertaining what lands are required for right of way, depot grounds and other railroad purposes, as above stated, and also the extent and value of any improvements made by defendants, this cause is referred to Hon. James H. Howe, as special master of this court, who will take such additional proof as either party may offer upon reasonable notice, the evidence to close by the first day of October next, and the report of the master to be filed herein by the 20th day of October next. The master will accompany his report with such reasons as he may deem proper in support of the conclusions reached by him. For that purpose he may visit the premises and report the result of his personal examination."

The master made his report, accompanied by the testimony,

Argument for Appellant.

to which exceptions were taken both by Case, the receiver, and by the defendants Hiles and Kelly, which exceptions were overruled by the court, and a final decree entered. From this the present appeal is taken.

That decree, after specifying certain pieces of land which the court considered as necessary and proper to the road for its use in the way of track, right of way, depots and other similar, proper and necessary uses, ordered the conveyance of these pieces of land by Kelly and by Ketchum and by Hiles and by the Arcadia Mineral Spring Company to the railroad company. It also directed a master to ascertain and report the value of certain improvements made by Hiles upon a portion of this property, and report the same to the court, for which Hiles was to be paid in case complainant should elect to take such improvements.

Mr. Walter C. Larned (with whom was Mr. Herbert M. Turner on the brief) for appellant.

I. The act of incorporation of the Green Bay and Minnesota Railroad Company being a private act, the court cannot take judicial notice of it. Atchison & Topeka Railroad v. Blackshire, 10 Kansas, 477; Horn v. Chicago &c. Railroad, 38 Wisconsin, 463; Perry v. New Orleans &c. Railroad, 55 Alabama, 413; Mandére v. Bonsignore, 28 La. Ann. 415; Broad Street Hotel Co. v. Weaver, 57 Alabama, 26; Chapman v. Coleby, 47 Michigan, 46; Workingmen's Bank v. Converse, 33 La. Ann. 963; Hailes v. State, 9 Texas App. 170; Leland v. Wilkinson, 6 Pet. 317.

II. The State alone, by a proceeding quo warranto, has the right to inquire whether the corporation was exceeding its powers in the acquisition of real estate. National Bank v. Matthews, 98 U. S. 621; Leazure v. Hillegas, 7 S. & R. 313; Cowell v. Springs Co., 100 U. S. 55; Goundie v. Northampton Water Co., 7 Penn. St. 233; Runyan v. Coster, 14 Pet. 122; The Banks v. Poitiaux, 3 Randolph, 136; S. C. 15 Am. Dec. 706; McIndoe v. St. Louis, 10 Missouri, 575; Gold Mining Co. v. National Bank, 96 U. S. 640.

Citations for Appellee.

III. The trustee was not entitled to improvements. Thomp son v. Thompson, 16 Wisconsin, 91; Waterman v. Dutton, 6 Wisconsin, 265.

Mr. George H. Noyes, for Hiles, appellee, cited: People v. Ottawa Hydraulic Co., 115 Illinois, 281; Covington Draw Bridge Co. v. Shepherd, 20 How. 227, 232; Junction Railroad Co. v. Bank of Ashland, 12 Wall. 226; People v. River Raison &c. Railroad Co., 12 Michigan, 389; S. C. 86 Am. Dec. 64; State v. Lean, 9 Wisconsin, 279; Clark v. Janesville, 10 Wisconsin, 136; Rochester v. Alfred Bank, 13 Wisconsin, 432; S. C. 80 Am. Dec. 746; Castello v. Landwehr, 28 Wisconsin, 522; Rensselaer & Saratoga Railroad v. Davis, 43 N. Y. 137; Cook v. Berlin Woolen Mills Co., 56 Wisconsin, 643; S. C. 43 Wisconsin, 433; Benson v. Cutler, 53 Wisconsin, 107; Hadley v. Stewart, 65 Wisconsin, 481; Blodgett v. Hitt, 29 Wisconsin, 169; Green v. Dixon, 9 Wisconsin, 532; Pratt v. Thornton, 28 Maine, 355; S. C. 48 Am. Dec. 492; Spindler v. Atkinson, 3 Maryland, 409; S. C. 56 Am. Dec. 755.

On January 26, 1888, the day on which the cause was argued, the death of Henry Ketchum, one of the appellees, was suggested, and on July 19, 1888, the appearance of his heirs and legal representatives was filed in the cause. On October 9, 1888, a motion was submitted asking for an order making the heirs and legal representatives of said Ketchum parties to the cause. On October 15th an order was made requiring the filing of affidavits to the effect that the persons named in the papers were the sole heirs and legal representatives of said Ketchum, and providing that in default thereof publication be made pursuant to the first section of rule 15. No affidavits having been filed pursuant to that order, on December 19, 1888, an order of publication was issued, and on July 6th, 1889, the order was duly published, and proof of publication thereof was filed in the clerk's office of this court September 12, 1889. The parties having failed to come in within the first ten days of this term, pursuant to the requirement of said rule, the appellant, on the 28th October, 1889, moved that such order or direction might be passed by the court as to it should seem

Opinion of the Court.

proper, or the exigency of the case might require. On the 4th of November, 1889, the court ordered that unless application should be made on behalf of the parties or either of them on or before the third Monday of that month to submit. further argument in the case, it would be taken and considered upon the arguments then filed. No such application was made.

MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court.

The principal question suggested by this appeal is, whether the complainant, as representing the railroad company, can maintain a suit for these lands; that is to say, whether the company was endowed by the legislature of Wisconsin with a capacity to receive an indefinite quantity of lands, with no limitation upon their use, or upon their sale, or whether they were limited to the lands necessary to such uses as were appropriate to the operations of a railroad.

It is not pretended that there is any general statute of the State of Wisconsin which authorizes either this company or any other corporation to purchase and hold lands indefinitely, as an individual could do, without regard to the uses to be made of such real estate. The charter of the company, approved April 12, 1866, Private Laws Wis. 1866, c. 540, p. 1331, authorizes it to acquire real estate, namely, the fee simple in lands, tenements and easements, for their legitimate use for railroad purposes. It is thus authorized to take lands 100 feet in width for right of way, and also such as is needed for depot buildings, stopping-stages, station-houses, freight-houses, warehouses, engine-houses, machine-shops, factories, and for purposes connected with the use and management of the railroad. This enumeration of the purposes for which the corporation could acquire title to real estate must necessarily be held exclusive of all other purposes, and, as the court said at the time of making its interlocutory decree, "it was not authorized by its charter to take lands for speculative or farming purposes."

It must be held, therefore, that there was no authority under the laws of Wisconsin for this corporation to receive an

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