author: GANTT, J. PER CURIAM

text:
    THE STATE ex rel. HINES, Prosecuting Attorney, v. SCOTT COUNTY MACADAMIZED ROAD COMPANY, Appellant.
    In Banc,
    November 6, 1907.
    1. APPELLATE JURISDICTION: Constitutional Question: Injunction. Where defendant in its answer, in an injunction suit to restrain it from collecting tolls over a turnpike road, assails the proceeding on the ground that if permitted it would be a denial of due process of law and the impairment of its contract with the State and a taking of its property without just compensation, and invokes the protection of sections of the Constitution on those subjects, the appeal is to the Supreme Court, for the court, when the appeal is presented, must not only determine whether or not a constitutional question was presented, but if so whether or not there is merit in it, and in such case the appeal is to the Supreme Court
    2. INJUNCTION: Toll Roads: Expired Charter. A proceeding by injunction by the prosecuting attorney in the name of the State to restrain a corporation whose charter has expired from further maintaining a public nuisance, is a proper remedy. And by statute (Laws 1901, p. 235) injunction by the prosecuting attorney in the name of the State to restrain a corporation whose charter has expired from charging and taking tolls from travelers upon a public highway, is expressly made the remedy.
    3. CORPORATION: Perpetual Succession. The legal existence of a corporation whose charter grants it “perpetual succession,” is by another section of the charter which continues the privileges granted by the charter to fifty years, limited to fifty years. “Perpetual succession” when used in a corporation’s charter mean continued existence during the term limited in the charter, and not eternal existence.
    Í. CORPORATION: Toll Road: Expiration of Charter: Right of Grantee. A corporation organized to maintain a turnpike road and to charge tolls for the use thereof, has no legal right to ■ collect tolls after the expiration of its charter. And as it has no such right it cannot transfer it to another corporation organized for the purpose of taking over all its properties.
    5. -: -: -: Appropriation of Road by Public: Compensation. After the. expiration of the company’s charter the road, which all along was a public highway, passed to the State or public, and the enjoining of it and its transferree from further collecting tolls or exercising any control over the road is not depriving it of its property without due process of law or without just compensation, for the right of either a corporation or individual to exact tolls is not a common right and does not exist in the absence of a grant by the Legislature. The grant of the privilege to collect tolls from travelers upon the public highway limited its compensation to its right to collect tolls, and that right having expired the road became a free public highway. Thereafter the public has a right to use the road without paying tolls or compensating the corporation or its stockholders for the expense it incurred in macadamizing or otherwise constructing the turnpike. But the toll gates, toll houses, and other property used by it in collecting tolls, are its own, which the State or county cannot appropriate.
    6. -: Defunct: Power to Convey. A corporation whose charter has expired is thereafter incapable of making a conveyance of its franchise and property.
    7. -: Prior Existence of Road. If the toll company had only an easement in the public highway, it is immaterial whether or not the county had acquired title thereto by prescription prior to the incorporation of the company. Its easement right having expired, the road remained, as it had been, a public highway.
    8. -: Injunction: Sufficient Petition. A petition that charges that a particular road is a public highway, and has been for a named number of years, and that defendant without right or authority maintains on and across said highway at various designated points certain bars and obstructions commonly known as toll gates and prevents the public from making free and proper use of said highway, and that said obstructions constitute a continuing public nuisance, and prays that ' the same be abated and that the defendant be enjoined from further maintaining the same, states all the facts necessary to be alleged, and is not defective as failing to charge that the road belongs to the public.
    9. ------■■ — : -: Reimbursement. There is nothing in the act of 1901 or in the general law which requires the public, either county or State, to reimburse the corporation whose charter has expired and by which it was granted the right to construct a turnpike road and to collect tolls from the public, or to pay back to the stockholders the money they had invested in the road, as a prerequisite to the right of the State to enjoin it from further collecting tolls and to prohibit it from interfering ■with the free use hy the public of the road. Such a case is not one where private property is sought to be taken for a public use without just compensation, for the company at the time it constructed the turnpike turned over to the public the use of the land for a road, and vested in the public an irrevocable easement. Their compensation was the privilege of charging and taking tolls during the life of the company’s charter.
    10. CONSTITUTIONAL STATUTE: Prior Law. A statute which is declaratory of the law as it had previously existed in the State as declared by the courts is not unconstitutional.
    Appeal from St. Francois Circuit Court. — Hon. Bobt. A. Anthony, Judge.
    Affirmed.

      M. R. Smith, Giboney Houck and R. G. Ranney for appellant.
    (1) Is the proper remedy by injunction in this case! (a) This is a suit by injunction to determine appellant’s right to hold or execute a franchise. The laws of the State provide that quo warranto is the remedy in such case. R. S. 1890', sec. 4457. (b) The above statute provides an adequate legal remedy and equity will not. entertain jurisdiction where there is an adequate remedy at law. Cadwaleder v. Atchison, 1 Mo. 659; Cabanne v. Lisa’s Exrs., Id. 683; West v. Wayne, .3 Mo. 16; McPike v. Pew, 48' Mo. 525; Stockton v. Ransom, 60 Mo. 535. (c) Equity has no jurisdiction to adjudicate the right to hold am office-, as there is an adequate remedy at law. State ex rel. v. Aloe, 152 Mo. 466. Franchises are in the same class with offices in the above statute, and, therefore, come under the above decision, (d) Quo warranto and not injunction is the proper legal remedy to' determine the right to an office or franchise if the franchise has expired. State ex rel. Jump v. Road Co., 187 Mo. 439. (2) (a) Defendant contends that its grantor owned in fee the right of way of its road. Secs. 1, 23, 24, p. 231, R. S. 1845 ; Black. Com., 479'; 5 Thump. Corp., par. 5791; 2 Preston on Estates, p. 50; 2 Kent’s Com., par. 281. (b) Conceding, for sake of the argument, that defendant’s grantor did not have the capacity to own in fee its right of way, then it only had an easement in the land through which its road ran for toll road purposes. Therefore, when its charter expired, right of way reverted to the original owners. Blackstone, par. 484; 5 Thompson on Corporations, par. 5627; Williams v. Natural Bridge, 21 Mo. 281; Kellogg v. Malin, 50 Mo. 497; Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 125; Graft v. Bird in Hand Turnpike Co., 5 L. R. A. 661; Port Wayne Land and Improvement Co. v. Mawnee Avenue Gravel Road Co., 15 L. R. A. 651; Mitchell v. Bourbon County, 76 S. W. 17; 27 Am. and Eng. Eucy. Law, 326; Wright v. Carter, 27 N. J. L. 76; Robins v. Boiman, 1 Pick. (Mass.) 122; Road Co. v. Renfroe, 58 Mo. 274. The evidence shows that defendant or its grantor had acquired the right of way by purchase, donation or condemnation over all the land through which its road passes. (3) Did appellant have power to buy road from or consolidate with Cape Girardeau and Scott County Macadamized Road Company? (a) The authority to consolidate is found in section 1221, Revised Statutes 1899. (b) Defendant is a regularly incorporated Missouri corporation and has authority to build and own a toll road. The power to build is the power to buy. 5 Thompson, par. 5941; Branch v. Jessup, 106 H. S. 468; Camden and A. R. v. Mays Landing R. Co., 48 N. J. L. 530; State v. Railroad, 37 Mo. App. 496; Detroit v. Ruad Co., 5 N. W. 237; Turnpike Co. v. Yivion, 103 Mo1. App. 324; Turnpike v. Illinois, 96 U. S'. 63. The power to' regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Turnpike v. Nelson County, 77 S. W. 337. (4) Can appellant or its grantor be deprived of its property without compensation? The right to own and hold property is á natural right of citizens which, when acquired under existing laws, becomes a vested right and not subject to be defeated by subsequent legislation. O ’Brien v. Ash, 169 Mo. 283; Gladney v. Sydnor, 172 Mo. 318; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518. (5) Even if it be true, as relator contends, that the charter of the Cape Girardeau & Scott County Macadamized Road Company expired on the 24th of February, 1903, would that fact impair, or destroy its road bed and the expensive stone structure built thereon; and must they not be considered property within the meaning of both the State and Federal Constitutions? 5 Thomp. on Oorp., sec. 6746; 23 Am. and Eng. Ency. Law (2 Ed.), 260, 261; 19 Am. and’ Eng. Ency. Law (1 Ed.), 285; Railroad v. Railroad, 2 Gray 35; Railroad v. Casey, 26 Pa. St. 325; Owens v. Smith, 31 Barb, (N. Y.) 641; Tower v. Hole, 46 Barb. (N. Y.) 361. On the dissolution of the company, the property thereof, real and personal, in equity, went to a trustee, the last board of directors, to be administered for the benefit of creditors and stockholders. R. S. 1899, sec. 976; 1 Cook on Stocks and Stockholders (3 Ed.), sec. 641; People v. DeGrauw, 133 N. Y. 254; Nicoll v. Railroad, 12 N. Y. 121; Forthingham v. Barney, 6 Hun 366; People v. Road Co., 86 N. Y. 9. Against no other species of property than a turnpike road would it be contended for a moment but that the creditors, and, if none, then the stockholders, on the expiration of the charter, February 23, 1903, through trustees would hold the property in the roadbed to the extent of the difference between what it cost to construct it with interest thereon, and the profits realized therefrom by tolls, which conservatively estimated could be not less than $30,000. Overwhelmingly, the testimony shows that the stockholders of the old company have a property interest in the roadbed, that is worth not less than $30,000. And it is such property as the State and Federal Constitutions will protect from confiscation by an act of the Legislature, i Cook on Stocks and Stockholders (3 Ed!.), sec. 641 and notes; 10 Am. and Eng. Eney. Law (2 Ed.), 292; Clark v. Mitchell, 64 Mo. 578; Davis v. State, 63 Ala. 58; Boggs v. Com., 76 Ya. 989; Calhoun v. Fletcher, 63 Ala. 574. The point that the stockholders had never been reimbursed for the cost of building the road was not made in any of these cases, nor that the creditors of the company had an interest in the property, including the roadbed, which equity asserted, irrespective of the statute, vesting in the last board of directors the title to such property.

      T. D. Hines, Robert L. Wilson and M. A. Dempsey for respondent.
    (1) Appellant contends that its grantor owned the fee in its right of way. No deed was offered in evidence conveying the fee of any of the right of way to this company. A part was obtained by condemnation proceedings and it is unnecessary to cite -authorities to show that no fee simple interest could have been acquired by it in such proceedings. The only deed in evidence to this company is that of K. W. and W. L. Killibrew, which expressly creates a reversion in themselves and their heirs. Whatever interest was acquired by this company to other portions of the road was by user and common consent which could only amount, under its charter, to an easement. (2) The next inquiry will be as to the nature of turnpike, gravel or plank roads and in connection therewith the meaning of a public highway. In the examination of cases decided in the various States, it should be borne in mind that the statutes of some States provide for the extension and reorganization of turnpike companies. Some of the cases cited by respondent were based upon these peculiar statutes. The best considered case wherein the general doctrine of public highways and turnpike companies has been enunciated is that of People ex rel. v. Virginia Canon Toll Road Company (Col.), 45 Pac. 398; State v. Beck, 81 Ind. 500; Elliott, Roads and Streets, secs. 69, 70; Thomp. Corp., sec. 5938; People v. Davidson, 21 Pac. 538; Com. v. Wilkinson, 16 Pick. 175; Craig v. People, 47 111. 487; State ex rel. v. Road Co., 138 Mo. 332. (3) Bnt it is contended by respondent that this action cannot be maintained, because the expiring of the charter of the original company on February 24, 1903, could not and did not impair or destroy the roadbed, and it must be regarded as property within the meaning of both the State and Federal Constitutions, and, therefore, if this action prevails, the effect will be to take respondent’s property without rendering due compensation therefor. The prior corporation obtained no fee simple title to its right of way. The only right it had to the right of way was the franchise of taking tolls, which was not a perpetual right, but absolutely terminated upon the expiration of its charter life. Therefore, it had no property rights in the right of way which it could devolve upon respondent by deed or otherwise. With any tangible property which may have been owned by the company, relator does not seek by this action to interfere. (4) Injunction is a proper remedy. State ex rel. v. Road Co., 37 Mo. App. 505 ; Laws 1901, p. 235; State ex rel. v. Gravel Road Co., 138 Mo. 332; 16 Am. and Eng. Encv. Law (2 Ed.), 352, 353, 354, 355; Attorney-General v. Jamaica Pond Co., 133 Mass. 363; People ex rel. v. N. & S. Plank Road Co-., 86 N. Y. 1; State ex rel. v. Gravel Road Co., 116 Mo. App. 175; City of Georgetown v. Canal Co-., 12 Peters 98; 29 Am. and Eng. Ency. Law (2 Ed.), sec. 703. It is not necessary to determine whether or not quo warranto would also lie. The remedies are not inconsistent and serve different purposes.
   IN DIVISION TWO'.

GANTT, J.

— This is a proceeding ex-officio by tbe prosecuting attorney of Cape Girardeau county to perpetually enjoin tbe defendant, its officers, agents, servants, successors and assigns from maintaining a public, continuing nuisance by obstructing a public highway in said county, known as the Scott County Road and sometimes as the Rock levee across the Big Swamp from the city of Cape Girardeau to the bluffs in Scott county, by maintaining on and across said highway, toll gates and exacting toll from the public who have occasion to use said highway. The petition alleges that said road is a public highway and has been such for more than thirty years; that the defendant is a corporation organized under the laws of this State, and without authority it maintains on and across said highway at various points, bars and obstructions commonly called toll gates, and that it prevents the public from making free and proper use of such highway and. that such toll gates are a continuous public nuisance. By consent of parties, a change of venue was granted to St. Francois county. The defendant then filed an amended answer to plaintiff’s petition. This amended answer consists of a general denial and an affirmative defence that no portion of said road was ever a free public highway, and that the public never had any interest in said highway; that said toll gate® and tolls collected are authorized by law; that the defendant is a corporation duly organized and as such is authorized to own a turnpike road as above described, and that the portion of this r.oad that passes across the Big Swamp was constructed in the years 1853 and 1855 by its grantor, “The Cape Girardeau and Scott County Macadamized Road Company. ’ ’ That in the years 1872 and 1873, the said last-named company procured its right of way along the north side of said swamp by condemnation, donation and purchase and finished the construction of its road to the city of Cape Girardeau; that said road so constructed to the city of Cape Girardeau was maintained and kept in repair from the time of its construction up. to the present time by defendant and its grantor; that the same has been used as a public thoroughfare, travelers thereon paying the tolls at all these times fixed and exacted; that the expenditures for maintaining said road have about equalled the receipts from tolls; that dividends to stockholders have been very small, not enough to reimburse them for the outlay for the construction of said road; that the said Cape Girardeau and Scott County Macadamized Road Company was created by act of the Legislature, approved February 24, 1853; that by the provisions of said act said Macadamized Road. Company was granted the exclusive privilege of constructing a macadamized road across the Big Swamp in the county of Cape Girardeau, with the privilege of extending the same to the city of Cape Girardeau, and that said company should have perpetual succession as such, and that at any time after the expiration of twenty years, the counties of Cape Girardeau and Scott should have the right to purchase said road for the purpose of making the same a free road, but that in the event that said sale should be made, the said counties of Cape Girardeau and Scott should pay to said company the actual cost of the construction of the same. That relying upon said act, believing that the terms and provisions thereof would be upheld and carried out by the State, said company went to work as soon as could be done after the passage of this act, to construct and build, and during the years 1853, 1854 and 1855, did build and construct said road and complete the same across the Big Swamp, in accordance with the requirements, of said act, and afterwards in the year 1873 did extend the said road to the city of Cape Girardeau; that said road was built by said company at great expense for labor and niaterial, to-wit, thirty thousand dollars; that said company was at all times willing to sell said road to said counties in accordance with requirements of said act, but said counties wholly failed and refused to buy said road. And defendant further alleges that it acquired said road from the said Cape Girardeau and Scott County Macadamized Road Company, by issuing to the stockholders of the said company fifteen thousand dollars of the paid up capital stock of this defendant for said road.

Defendant further answering says that the proceedings of plaintiff under this petition violate sections 4, 15, 21, 30 and 32 of article 2 of the Constitution of the State of Missouri, and section 9, paragraph 3, and section 10, article 1, section 4 of article 4, and the 5th and 14th amendment of the Constitution of the United States, which provides that the private property, to-wit, the property of this defendant, cannot be taken without due compensation and process of law, and defendant pleads said several sections and provisions of the Constitution of the United States and the State of Missouri in bar to the pretended cause of action set up in the petition and proceedings of the plaintiff in this behalf instituted. The defendant for further answer says that it purchased the said road for the sum of fifteen thousand dollars in its full paid up capital stock, which was delivered to the last board of directors and trustees of the Cape Girardeau and Scott County Macadamized Road Company, and defendant avers that under the laws of the State of Missouri, after the expiration of the charter of the Cape Girardeau and Scott County Macadamized Road Company, the last board of directors and trustees of said company had good right to sell and convey the private property and assets belonging to said Cape Girardeau and Scott County Macadamized Road Company to a new company organized for the purpose of owning said road; and that it was the well-settled policy, established by the laws of this State, to authorize a conveyance of the property belonging to said corporation whose charter had expired to convey its property to a new corporation organized in that behalf. And defendant denies that the stockholders of the said Cape Girardeau and Scott County Macadamized Road Company have ever been reimbursed in full or for ,any part of the capital invested by it in the construction of the said road,. and that under the laws of this State said company was authorized to transfer all the property it owned at the time of the expiration of its charter to another corporation organized to take over and operate the said road, and this defendant avers that for valuable consideration it has acquired the said road and all the assets, land and property of the said company and is now the lawful owner thereof and in lawful possession thereof and has acquired a fee and title in fee simple to the said road and right of way sixty feet wide from the owners of the fee adjacent and bordering upon the said road and that plaintiff has no interest or right to the said road in law or equity. And having fully answered prays that the temporary injunction be dissolved and the defendant be discharged with its costs.

To this answer a reply was filed' denying all the new matter set up in the answer and especially pleaded that by the Act of February 24, 1853, the Cape Girardeau and Scott County Macadamized Road Company had authority to build a macadamized road from Cape Girardeau to Scott county and keep the levee aforesaid for a period of fifty years; that said right expired on the 24th of February, 1903, whereupon the said road so constructed by said company was and became a free public highway disburdened of the right of said Macadamized Road Company to take tolls thereon; that said Macadamized Road Company had no power or authority to acquire any fee simple title whatever, and its only right was to acquire an easement or right of way for the purpose of said road, and that' it did not acquire any fee simple title to the roadbed and had no authority to sell to this defendant or any one else its right to take tolls or its roadbed; that the stockholders of the said Macadamized Road Company after the expiration of its charter, in order to deprive the public of its free public highway, organized a new corporation known as the “Scott County Macadamized Road Company,” and caused a pretended conveyance to be made by the last board of directors of the old com-, pany of the roadway, property and- franchises of the said Cape Girardeau and Scott County Macadamized Road Company to this defendant. That the defendant company had no assets; that no money was paid for its capital stock and the whole transaction was a scheme contrived to attempt to perpetuate the wrongful and unlawful claim to take tolls forever over the road aforesaid. And relator avers that the entire road now claimed by the defendant from Cape Girardeau to the north end of the levee across the levee in Scott county was by its construction and opening to the public, dedicated by the company constructing it to the public, and thereby became and was and has ever since been a public highway used by -the public at all times subject only to the right of the former company to maintain toll gates up to February, 1903-. And that at the expiration of the charter of the said Cape Girardeau and Scott County Macadamized Road Company, all the roadway, rights and franchises of said company vested in the public and said road became a free public highway by operation of law, and the defendant is unlawfully obstructing said highway by its toll gates to tbe great injury of the public, and again prays judgment for a perpetual injunction.

Upon the trial the following facts were developed):

By the Act of the Legislature approved February 24, 1853, Laws 1853, p.. 337, “The Cape Girardeau and Scott County Macadamized Road Company” with the capital stock of fifteen thousand dollars was created a body politic. The company was given ‘ ‘ the exclusive privilege of constructing a macadamized road across the Big Swamp in the counties of Cape Girardeau and Scott, where said swamp commences below the city of Cape Girardeau, and running across said swamp a distance of three or four miles, with the privilege of extending the same to the city of Cape Girardeau.”

The circuit court after a full hearing rendered a decree for the plaintiff perpetually enjoining the defendant, its officers, agents, servants, successors and assigns from further maintaining toll gates on and across said road and from in any way interfering with the public in the free use of said highway.

I. At the threshold of the consideration of this appeal, we are met with the suggestion of the plaintiff that this court is without jurisdiction to determine, it for the reason that no constitutional question is involved in its determination. It will be observed that the defendant in its answer assails this proceeding on the ground that if permitted it would he a denial of due process of law and am impairing of the obligation of its contract with the State and a taking of its property without just compensation and pleads the sections of the Constitution which guarantee that immunity. Counsel for plaintiff in urging that this court is without jurisdiction insists that that question cannot arise for the reason that the State is not seeking to recover the toll houses, gates and other personal property of the defendant, but is asking only that its citizens be permitted to travel over the surface of this highway without payment of unlawful toll. It is true that this is the purpose of the action, but it is also true that defendant asserts a fee simple title in the road and at least a right to an easement over it, and that this proceeding would impair the obligation of the contract with the State and of its grantor, which if sustained by this court would necessarily defeat the injunction; and while it may be that upon a full investigation of these questions, the result will be reached that no constitutional right of the defendaut has been or will be infringed or impaired by this proceeding or the judgment of the circuit court, we are of the opinion that a constitutional right is sufficiently asserted under all the circumstances to put the jurisdiction in this court instead of the Court of Appeals. If transferred to the Court of Appeals, these same questions would be presented there, and thatcourtmustnecessarilydecide, first, whether a constitutional question was raised, and, second, whether there was merit in it. While we have ruled that we will look sufficiently deep into the record to ascertain whether jurisdiction properly belongs to this court and will not entertain it merely because some section of the Constitution is named, still where the question is mooted and we can see that the constitutional question must be passed upon even' though adversely, we think it is our duty to hold jurisdiction of the case, and accordingly we shall dispose of the appeal on its merits in this court.

II. In State ex rel. v. Hannibal & Ralls County Gravel Road Co., 138 Mo. 332, without discussion, a proceeding by injunction to restrain a corporation whose charter had expired from charging and taking tolls upon a public highway, was sustained. Afterwards, in State ex rel. v. Gravel Road Company, 187 Mo. 439, the propriety of that ruling was questioned, but as it was ruled in that case that this court had no jurisdiction of the appeal and as a majority of the court did not concur in the views of Judge Marshaü, that quo- warrcmto was the only remedy for such a wrong, and that as it was a legal remedy injunction would not lie, it cannot be considered that the decision in State ex rel. v. Gravel Road Co., 138 Mo. 332, has been authoritatively disapproved by this court, or either division thereof. After the case of State ex rel. Jump v. Gravel Road Company was transferred by this court to the Court of Appeals, that court, in 116 Mo. App. 175, held that injunction was a proper remedy to prevent a continuing public nuisance and it was proper for the prosecuting attorney of the county to institute such a proceeding ex officio. The Court of Appeals, while conceding that the State might have proceeded by quo ivarrcmto against the corporation to oust it of its charter and franchise, proceeded to take up the question on principle whether injunction could also be resorted to, and reached the conclusion that the great weight of authority in this country, as well as in England, was to the effect that in addition to the remedy at law by quo warranto, it is now settled that a court of equity may take jurisdiction in cases of public nuisances upon information filed by the Attorney-General or other proper officer authorized to represent the State. Thus in City of Georgetown v. Alexandria Canal Company, 12 Peters 91, the Supreme Court of the United States sustained the jurisdiction of the court of equity, on the ground that equity can give more adequate and complete relief than can he obtained at law. In Attorney-General v. Jamaica Pond Aq. Corp., 133 Mass. l. c. 363, it was said: “The eases are numerous in which it has been held that the Attorney-General may maintain an information in equity to restrain a corporation, exercising the right of eminent domain, . . . from any abuse or perversion of its powers which might create a public nuisance or injuriously affect or endanger the public interests.” [Agar v. Regent’s Canal Co., Coop. temp. Eldon, 77; Attorney-General v. Railroad, 1 Dr. & Sm. 154; Attorney General v. Railroad, L. R. 3 Ch. App. Cas. 100; Attorney-General v. Railroad, L. R. 11 Ch. D. 449; Attorney-General v. Railroad, 4 DeG. & Sm. 75; Attorney-General v. Cohoes Co., 6 Paige 133; People ex rel. v. Newburgh & S. Plank Road Co., 86 N. Y. 1.] As said by the Court of Appeals, “If the collection of the tolls was a nuisance, maintained in the public highway, then it was the right of the public to have such nuisance abated or restrained forthwith and it was the duty of the State in its sovereign capacity to institute such proceeding in that behalf as would render to its citizens immediate reinstatement of a free and unincumbered highway. A proceeding by quo warranto would have been of a tedious nature where the relief sought could only be adjusted upon a final determination of the cause, whereas a proceeding by injunction would afford immediate and adequate relief inasmuch as the restraining order of the court could be had forthwith, and the otherwise constant and recurring nuisance be thereby abated during the pendency of the suit, the ultimate result being the same in either proceeding. And, indeed, the daily practice of unlawfully exacting tolls from those persons using the road was a standing and continuing infringement of their rights, which could be immediately relieved only by the extraordinary process of injunction, and upon each successive exaction of toll, a right of action arose in favor of the person who was required to pay the same against those persons so unlawfully exacting it, which could he adjusted between the parties only by a multiplicity of suits at law. ’ ’ We have no doubt whatever that this proceeding by the prosecuting attorney ex-officio to abate this public and continuing nuisance was and is the proper remedy. Since the decision of this court in State ex rel. v. Gravel Road Co., 138 Mo. 332, the Legislature of this State, at the regular session in 1901, enacted a new section to article 5 of chapter 151, Revised Statutes 1899, known as section 9547, which provides: “The control and management of all graveled or macadamized roads of this State, which may have been originally constructed by any corporation, whether organized under special act of the Legislature or under general law, whose charter life has expired or may hereafter expire, shall immediately pass to and vest in the county court in which such road may be situated, and in all cases where such corporation whose charter life has expired by limitation or otherwise is in the possession of and in control of such roads and is collecting tolls thereon, it shall be the duty of the prosecuting and circuit attorneys of the respective counties or circuits through which such road or roads may run to prosecute suits in the name of the State at the relation of such attorneys to enjoin, restrain and prohibit such corporations from collecting such tolls, and such suits may be prosecuted in the name or names of one or more citizens of such counties or circuits who reside in the vicinity of such roads and travel over the same, and in case the circuit or prosecuting attorneys fail or refuse upon request to prosecute the same, any citizen may in the name of the State at the relation of said citizen prosecute such suits to the same extent and in the same manner as the circuit or prosecuting attorney could have done.” [Laws 1901, p. 235.] It would seem that neither our learned brother who wrote the opinion in State ex rel. v. Gravel Road Co., 187 Mo. 439, nor the Court of Appeals when preparing its opinion in the same case in the 116 Mo. App. 175, had his or its attention called to this new act, which evidently was intended to embody in the statute law of this State the principles approved in State ex rel. v. Gravel Road Company, 138 Mo. 332, and State ex rel. v. Gravel Road Company, 37 Mo. App. 504.

III. The defendant insists that the act of February 24, 1853, incorporating the Cape Girardeau and Scott County Macadamized Road Company, Laws of Missouri 1853, page 337, conferred upon it continuous and uninterrupted succession and that the charter of the said company did not expire on February 24, 1903, by limitation, or in other words, at the end of the fifty years prescribed by the 8th section of said act, for its existence. The learned counsel concedes that this court, in State ex rel. v. Payne, 129 Mo. 468, settled the law adversely to- its contention, and that that case was followed and approved in State ex rel. v. Gravel Road Company, 138 Mo. 332, in which cases it was held that the words “perpetual succession” implied nothing more than a continuous succession during the existence of the corporation as is fixed by its charter. But we are asked by the learned counsel to review those decisions and to hold that, notwithstanding the limitation in the act for the exercise of the privileges conferred, the words “perpetual succession” created a perpetual charter in the Cape Girardeau and Scott County Macadamized Road Company. We have read with interest the argument of the learned counsel, and the authorities to which they refer, but have not been convinced that our previous rulings in the cases just cited were incorrect; on the contrary, we are more than ever satisfied with the absolute soundness of the conclusions reached In those- decisions upon this point and that they correctly overruled Fairchild v. Masonic Hall Association, 71 Mo. 526. Chancellor Kent in 2 Kent’s Com. (14 Ed.), 267, long ago announced- the true meaning of the words perpetual succession in corporate charters, wherein he says: “It is sometimes said that a corporation is an immortal as well as an invisible and intangible being. But the immortality of a corporation means only its capacity to take in perpetual succession so long as the corporation exists. It is so far from being immortal that it is well known that most of the private corporations recently created by statute are limited in duration, to a few years.” In 7 Am. and Eng. Ency. Law (2 Ed.), 684, it is well said: “When it is said that one of the distinguishing features of a corporation is the capacity of perpetual succession, this must be understood to mean a potential, not an actual perpetuity; a capacity, as contradistinguished from partnerships and other voluntary associations, to continue in existence indefinitely, up to the period of its constitutional or statutory limitation, in spite of the withdrawal or death -of any of its members.” And in 10 Ency. Law and Procedure, page 148, it is laid down that these words, “perpetual succession,” “mean in a general sense that the corporation is endowed with the faculty of existing forever unless the same or another statute or the Constitution has fixed and limited the term of its existence. In other words, the terms ‘perpetual succession’ are understood to mean indefiniteness of duration, and do not refer to length of time, but rather convey the idea of regularity or unbroken continuity of existence.” [See, also, Field on Corporations, sec. 57; Ang. & Ames on Corporations, sec. 8.] So, that it must be held that by the limitation in the 8th section of the act incorporating the Cape Girardeau and Scott County Macadamized Road Company, the charter of that road expired on the 24th of February, 1903.

IV. But it is insisted that notwithstanding the charter of the Cape Girardeau and Scott county Macadamized Road Company expired on the 24th of February, 1903, that fact did not and could not impair or destroy the title of the said corporation in the said macadamized road and it must be regarded as property within the meaning of both the State and the Federal constitutions, and that the last board of directors of said corporation as trustee for the said corporation had the capacity and power to convey the same to the defendant herein or to consolidate with the defendant herein and thereby transfer the title for the road to the present defendant company, which is incorporated to build and own a toll road. And that this proceeding seeks to deprive the defendant of its property in said road, which it acquired from said defunct corporation, without due process of law and without compensation.

To rid this question of all confusion, it may be well to remark that by this proceeding the State does not claim or seek to recover by this action the toll houses, gates or other personal property of the appellant, but seeks only to restrain and prohibit the defendant from longer obstructing this road, which the State insists became on the 24th of February, 1908, a free public highway disburdened of the public and continuing nuisance of toll gates across the same and the exaction of illegal tolls by the defendant, its agents, servants and employees. And thus we are brought to the real contention in this case, to-wit, what was the character of the rights acquired by the Cape Girardeau and Scott County Macadamized Road Company under its charter of 1853. By reference to the act itself, it will be seen that this corporation was created for a public purpose, to-wit, that of constructing a macadamized road across the Big Swamp in the counties of Cape Girardeau and Scott, with the privilege of extending the same to the city of Cape Girardeau, with the privilege of taking tolls from all persons who should travel thereon and to enforce the collection of the same by erecting gates or turnpikes to obstruct the passage over said road until the tolls fixed by the act were paid. And the right to exercise this privilege was expressly limited to fifty years. No power was granted to said corporation to obtain a fee simple title to the land over which said road should be constructed. The only right granted to it was to obtain an easement or right of way for its said proposed road. The nature and character of turnpike roads was fully examined in State ex rel. v. Gravel Road Company, 138 Mo. 332. It was there said: “Now, a turnpike is a highway differing neither in the responsibility for its proper maintenance nor in any other particular from an ordinary highway, save in the mode of constructing and maintaining it. An ordinary public road is maintained and repaired by taxes ; a turnpike is supported and maintained by the tolls exacted. A turnpike is regarded in law as a public easement and not as private property. Every traveler has the same right to use it, paying the toll established by law, as he would have to use any other highway. These principles are well established. [Com. v. Wilkinson, 16 Pick. 175; Craig v. People ex rel., 47 Ill. 487.] The public character of the easement is made more manifest when the charter of such companies permits the condemnation of real estate in acquiring their right of way as was granted by the act of 1851, section 8, page 261. [Knox Co. v. Kennedy, 92 Tenn. 1.] And as if to emphasize this view it has often been ruled that when the charter permitted the use of an established highway for a turnpike it imposed no additional burden upon the adjoining landowners by changing the highway into a toll road, on the principle that the character of the easement was not ehanged, the road remaining a public highway. [Carter v. Clark, 89 Ind. 238; Chagrin Falls & Cleveland Plank Road v. Cane, 2 Ohio St. 419; Panton Pike Co. v. Bishop, 11 Vt. 198; Callison v. Hedrick, 15 Gratt. 244; Douglass v. Boonsborough Turnpike Road Co., 22 Md. 219; Wright v. Carter, 27 N. J. L. 76; Walker v. Caywood, 31 N. Y. 51.] ” And in that same case-, the question now presented arose and was determined, and it was said: “Having reached this point [to-wit, the date on which the charter rights of the company expired] we are confronted with the question, what becomes of the turnpike or plank road after the franchise expires ¥ We think that the weight of authority and sound reason concur in holding that upon the termination of the franchise the road remains as before a public highway, wholly free from the burden of tolls. Particularly is this true when, as under our statute, the turnpike company merely acquires an easement in the road during its charter life, and not a fee in the land on which the road is laid out. The easement in a turnpike as well as in an ordinary road is vested in the public and when the turnpike company’s charter expires, its easement ceases, but the easement of the public continues until revoked by law. [State v. Maine, 27 Conn. 641.] In Railroad v. Com. ex rel., 104 Pa. St. 583, the Supreme Court of Pennsylvania states the law in these words: ‘The question is, did the forfeiture of the charter of the turnpike company wholly destroy the character of the road as a public highway? The right of the company to take tolls was ended. Its liability to keep the road in repair was terminated, yet the road as a public highway remained. No- judgment or decree had destroyed its character as such. It had been dedicated to public use. The forfeiture of the charter of the turnpike company destroyed the rights of that corporation; yet the road still remained, in fact and in law, a public highway.’ [Craig v. People ex rel., 47 Ill. 495.] And in McMullin v. Leitch, 83 Cal. 239, it was held that the road becomes a public highway by dedication at the time of its construction subject to the right of the company to collect the tolls for the period prescribed by statute, and at the termination of such period neither the company nor stockholders have any interest in the road for which they are entitled to compensation. [27 Am. & Eng. Ency. Law, 324, et seq.]”

In addition to the authorities above quoted the learned circuit Judge wlm tried this cause has added others, among which is Virginia Canon Toll Road Co. v. People ex rel., 45 Pac. 398, 22 Colo. 429. In that case a company was formed in 1865 for the purpose of establishing a toll road. The company’s existence was for a term of twenty years. In 1881 the respondent company was formed for the purpose of acquiring and did acquire as far as they could be alienated, all the rights, property and franchises of said first company. This action was brought in 1896, to exclude the respondent from its assumed franchise to collect tolls, and that the corporation be dissolved. A demurrer to the petition was overruled, which action of the lower court was sustained by the Supreme Court. The court, through Campbell, J., among other things, says: “A toll road is'a public highway, differing from ordinary public highways chiefly in this, that the cost of its construction in the first instance is borne by individuals, or by a corporation, having authority from the State to build it and further in the right of the public to use the road after its completion, subject only to the payment of toll. The acceptance by the corporation of the franchise to construct the road and the operation thereof constitutes a dedication of the same as a public highway. The right of a corporation, or of an individual, to exact tolls is not of common right, and, in this country, does not exist in the absence of a grant from the Legislature. This power of collecting tolls is a part of the sovereign power of the State, . which the Legislature may delegate in return for a supposed public good, and the grant of the power may be conferred with any restrictions which the Legislature may see fit to impose, and the grantee takes subject to all such limitations, and the grant of the right is the equivalent of, or compensation for, the cost of building and maintaining the road.....But if we assume that the Wagon Road Company might alien its franchises to collect tolls, and that the defendant Toll Road Company now has, by purchase, all the tangible property of the former company, and also the franchise to exact tolls which its grantor possessed, it must logically follow that, as the result of such acquisition, the grantee company has only the same powers which its grantor had, and no different or enlarged powers. In other words, whatever limitations or burdens existed against the grantor, still exist as. against the grantee. The inquiry then is, what is the extent of the powers of the Wagon Road Company? Under the territorial act of incorporation the Wagon Road Company’s existence as a corporation expired in 1885'. It was then legally dissolved as a corporation, and was thereafter incapable of exercising its franchise to collect toll. Neither could it, by a conveyance madf during its incorporate life, impart to any other corporation, or to a natural person, the power to continue the exercise of its corporate franchise after that franchise itself expired by limitation of law. The limitation in the general incorporation act of the territory of twenty years as the term of existence of the company operates in the same way as though by express words the exercise of the power to collect tolls was limited to twenty years. [Elliot, Roads & S., 83; 27 Am. & Eng. Ency. Law 324, et seq.] But plaintiff in error insists that its property is valuable only in case it has the right to collect tolls; and, therefore, that such use of its property is, of itself, a property right, and unless there is some way whereby it can enjoy this use of its property after its corporate life has ended, practically it is deprived of its property without due process of law. The argument proceeds upon a false premise. In the eye of the law, the toll road was dedicated by its owner as a public highway. While in one case (People ex rel. v. Newburgh & S. Plank Road Company, 87 N. Y. 1) it was held that if a private corporation owns the fee on which the way exists, the public does not acquire the right to use the way upon the expiration of the charter (which decision has been said to he contrary to the weight of authority— Elliot, Roads & S., 54), yet where the corporation has only an easement, as is the case here, and not the fee, the authorities are unanimous that upon the expiration of the charter the way becomes a public highway. [27 Am. & Eng. Ency. Law, supra, and cases cited.] . . . . The easement in, or the right to pass over, the roadway which the corporation laid out, belongs to the public, subject to the necessity of paying tolls only for such length of time as the corporation exists. The contract between the State and the corporation contained' in the charter, or resulting from the act of incorporation under the general laws, is that the corporation shall possess during its corporate life the power of collecting tolls, which is regarded as a compensation, and a full equivalent, for the cost of construction and operating the road. The corporation accepts the grant subject to this condition, and supposing, at least, that the business will prove remunerative. This right to collect tolls, not belonging to the corporation either as a matter of common right, or for an indefinite time, as a grant from the Legislature, but for such length of time as the corporation itself is permitted to do business, remains the property of the company only until the dissolution or the expiration of its charter, and, after that, is neither the property of the corporation nor of its stockholders, but reverts to the State. This property does not, therefore, like the tangible property of a corporation, pass to its stockholders, subject to the rights of creditors, for the obvious reason that the franchise as originally granted was limited to twenty years. It is no answer to this proposition to say that the corporation is deprived of that which is valuable, for the corporation is deprived only of that which, by implication, it agreed to relinquish upon the termination of its corporate existence. If the rule were otherwise the result would be that a toll road company which, under our statute, is limited to twenty years, might indefinitely prolong its existence and perpetuate its franchise, contrary to the express provision of section 11 of article 2 of our Bill of Bights, which prohibits the irrevocable grant of franchises by the General Assembly. [See sec. 15, art. 2, Constitution of Missouri]; for just before the termination of its corporate existence, its stockholders could [as was attempted to be done here] form a new corporation, to which the property and franchise of the old one would be transferred, and the business continued, and when this second corporation was about to expire, a third one could, in like manner, be formed, and so on for all time; and thus indirectly the legislative will could be thwarted, and the Constitution with impunity evaded, and the perpetuation of franchises be accomplished, and a monopoly established, contrary to the letter and spirit of our law. The authorities, so far as called to our attention or as we have examined them, are in harmony with this conclusion. In addition to those already cited, they are: Turnpike Co. v. Ills., 96 U. S. 63; State ex rel. v. Lake, 8 Nev. 276; Blood v. Woods, 95 Cal. 78, 30 Pac. 129; Thompson on Corporations, sec. 5988; State ex rel. v. Lawrence Bridge Company, 22 Kan. 438.”

The learned counsel for the defendant in this case has with much industry distinguished the facts in the Ralls County Case, 138 Mo. 332, from those in the case at bar, one of which is that in that case the turnpike was constructed originally on a previously established public highway by and with the consent of the county court. But the conclusion reached by this court in that ease was not based upon the exceptional facts therein, but upon the general law applicable in this case, as in' that of any other case in which the turnpike company is incorporated with the right to take tolls for a limited period, and when such charter right expires, the highway becomes disburdened of tolls and is a free public highway thereafter. And by such conclusion, in no manner, as said in the Colorado Case from which we have quoted so freely, no property right of the company is taken for which it is entitled to compensation. In view of the well-settled law on this subject, it must be held that the contract of the State with the Cape Girardeau and Scott County Macadamized Road Company terminated on February 24, 1908, and the road constructed by it on.that day ceased to be a toll road, but its character as a public highway remained, and the public is now entitled and was on that date entitled to its free use without the payment of tolls. And it follows as a necessary corollary that on May 27, 1903, the said Cape Girardeau and Scott County Macadamized Road Company had no right, title or interest in said public highway other than its toll gates, houses and personal property which it could convey to the present defendant, the Scott County Macadamized Road Company, and nothing passed by the attempted transfer between the said companies. It is too well settled to admit of discussion that the first company only obtained an easement over the said right of way and not a fee simple title to the land. [Venable v. Railroad, 112 Mo. 103; State ex rel. v. Gravel Road Co., 138 Mo. 345, 346; Kellogg v. Malin, 50 Mo. 499; Chouteau v. Railroad, 122 Mo. 385.] And moreover there was no such corporation as the Cape Girardeau and Scott County Macadamized Road Company in existence at that date capable of making a conveyance of such right of way. [Bradley v. Reppell, 133 Mo. 545.] And for a further reason that before said attempted conveyance was executed, the franchise and roadbed which the deed purported to pass had already vested in the public free from any . power of said defunct corporation to effect a transfer thereof.

Learned counsel in the briefs have assailed the constitutionality of the act of April 3, 1901, but as that act is simply declaratory of the law as had already been decided by this court, we are not impressed with any of the objections alleged against its validity.

Much of the brief of the counsel for the defendant is devoted to the evidence for the purpose of showing that Cape Girardeau and Scott counties had no title by prescription to the highway prior to the incorporation of the Cape Girardeau and Scott County Macadamized Road Company, but according to the views already expressed that was a matter of indifference.

The petition in the case is also assailed on several grounds, one is that it does not charge that this particular road belonged to the public, but a reference to the petition will show that it defines this particular road as a public highway, and then alleges that it is now and has been a public highway for more than thirty years, and that the defendant without right or authority maintains on and across said highway at various points designated therein certain bars and obstructions commonly known as toll gates and prevents the public from making free and proper use of said highway, and that said obstructions constitute a continuous public nuisance, and' prays that the same be abated and the defendants enjoined from further maintaining the same. This is a clear and concise statement of all the facts necessary to be alleged.

Another objection to the petition is that it fails to charge that the stockholders had ever been reimbursed or that the public or any one else had ever offered to pay them back the money they had invested in the road. A complete answer to this is that there is nothing in the act or in the general law which imposes any such obligation upon the public. In People v. Davidson, 79 Cal. 166, 21 Pac. 538, it was said, quoting from Craig v. People ex rel., 47 Ill. 487: “It is claimed for appellant that before his road can be declared a free public highway, he must be paid an equitable sum for his interest in it. But by his own acts, and presumedly with full knowledge of the law, appellant turned over to the public the use of his land for a road, and vested in the public an irrevocable easement. It is not a case, therefore, where private property is sought to be taken for public use without just compensation. In some of the states, compensation is made to toll-road owners at the expiration of their charters, but in those states it is expressly provided by law that such- compensation shall be made.” No such provision is made by law in, this State. And the theory of our law is that the original incorporators unquestionably estimate that the privilege of collecting tolls for fifty years would fully compensate them for their investment in the construction of the road; whether or not their expectations will be' or have been realized does not concern the State or its officers.

The conclusion of the whole matter is that the judgment of the circuit court in granting a perpetual injunction against the obstruction of this highway was proper, and it is affirmed.

Fox, P. J., and Burgess, J. concur.

IN BANC.

PER CURIAM

Upon a rehearing of this cause by the Court in Banc, the foregoing opinion of Gantt, G. J., in Division No. 2, is adopted,

Burgess, Valliant, Fox, ■ Lamm, Graves and Woodson, JJconcurring therein.


source: Caselaw Access Project

author: GANTT, J. PER CURIAM.

license: Public Domain

text:
    THE STATE ex rel. HINES, Prosecuting Attorney, v. CAPE GIRARDEAU AND JACKSON GRAVEL ROAD COMPANY, Appellant.
    In Banc,
    November 27, 1907.
    1. CORPORATION: Period of Existence: Not Fixed in Charter: Special and General Acts. Where no period or limitation of the duration of the charter of a toll road company was fixed in the special act of 1851 creating it, that period was determined by the general corporation laws then in force which limited it to twenty years, and not by the general act for the incorporation of turnpike companies enacted the same year, which had reference only to companies organized under its provisions.
    2. -: Toll Road Company: Fee Simple Title to Roadbed. Notwithstanding the special charter creating a toll road company says it may acquire land for its road by purchase or condemnation and such act “shall vest in said company a fee simple title to said strip of land,” it by either method acquired only an easement therein. The words “fee simple title” were not used in their technical sense. Power to take and hold lands in fee simple for a' right of way, whether by purchase or condemnation, means no more than the right to acquire and hold an easement in the land so long as it is needed for the purpose of a right of way.
    3. -:--1: -: Lands for Materials and Timber. And that such was the understanding of the Legislature which granted the special charter is emphasized hy the fact that another section of the act authorized it to acquire in fee simple pieces or parcels of land along the line of its road for the purpose of procuring timber and other material, and authorized it to sell them, whereas it said nothing about its right to sell its right of way.
    4. -: —i-: -: Sale: After Charter Expired. A toll road company cannot transmit the fee simple title or any title or interest in the land .used as a roadbed after it ceases to be a corporation or its charter has expired, for it has no interest to convey, although it had acquired said land by purchase.
    5. -: Limitation: Public Road. A toll road corporation cannot acquire a perpetual easement in a public road by limitation by collecting tolls from persons traveling thereon. The public held the possession and exercised the right to travel subject only to the payment of tolls to the company. Such use by the company is not exclusive A submission by travelers for ten years or longer, to the illegal exaction of tolls by the company, after its charter had expired, was not a 'deprivation of the public of its right to the public highway.
    6. —--: Laches of the county authorities to enjoin a toll road company from exacting tolls for travel over its road, after its charter had expired, does not divest the public of its right to use and travel over the road as a free public highway, nor defeat a suit brought by the county attorney, long after its charter expired, to enjoin the collection of tolls by it.
    7. -: Stock Owned by County. Nor is the State at the relation of the prosecuting attorney estopped to maintain such suit by the fact that the county owned a part of the stock of the toll road company and sold it long after its charter expired, which was acquired by said company’s transferee, the defendant.
    8. -: Expiration: Title to Road. Upon the expiration of the corporate existence of a toll road company, according to the limitation fixed by its charter or the general laws, the road and franchises vest in the public free from any claim of said company, and any attempted conveyance thereof by it thereafter is void, for it neither had any legal existence, nor any road or interest therein to convey, although it may have originally constructed the road and acquired the land occupied hy it by purchase.
    Appeal from St. Francois Circuit Court. — Hon. Robert A. Anthony, Judge.

      Affirmed.

      W. H. Miller and Oliver <& Oliver for appellant.*
    (1) The act gives the corporation power to hold the land in “fee simple.” A fee simple is defined to be the largest estate and most extensive interest that can be enjoyed in land, being the entire property therein. 2 Blackstone’s Commentaries, 106. The statute provides that “words and phrases shall be taken in the plain or ordinary and usual sense,” “but technical words, having a peculiar and appropriate meaning in law, shall be understood according to their' technical import.” Sec. 4160, R. S. 1899;'122 Mo. 400'. Kellogg v. Malin, 50 Mo. 496, is at variance with the whole purpose and intent of the act under which the plank road company was incorporated. The word “fee” must have been designedly used by the lawmaking branch, of the government. There was then no constitutional inhibition against the acquiring of a “fee by condemnation,” as we have in our present Constitution. And in our present Constitution, the inhibition is leveled against the taking of land for “railroad tracks” without the consent of the owner. Art. 2, sec. 21, Constitution; Lewis on Em. Dom., sec. 277; Depot Co. v. Frederick, 117 Mo. 153; State v. Board of Trustees, 175 Mo. 59. The legislative grant is a contract and conferred vested rights.. St. Vincent’s College v. Schaefer, 104 Mo. 261. (2) That part of the road between Jackson and Bufordsville appellant claims by the Statute of Limitation. Boyce v. Railroad, 168 Mo'. 583; Turner v. Railroad, 112 Mo. 542; Horgis v. Railroad, 100 Mo. 217. (3) In; the court below respondent made the point that appellant had the right to construct a macadamized road, but not to buy one. This we denied then, and deny now. 37 Mo. App. 496; Morawetz on Corporations, 372; Thompson on Corp., sec. 5944; Branch v. Jesup', 106 U. S. 468. (4) This record shows that Cape Girardeau county, by and through its county court, parted with its interest as a stockholder in the old plank road company in 1882, and that it took the money from its vendors and put the same in the common treasury in the county. This court will take judicial notice of the fact that since 1882 it has heen subject to the payment of taxes and will presume it has performed its duty in that behalf, and paid taxes both to the State and county, on all its taxable property. It has permitted this appellant to believe from its conduct and treatment that it did not own or assert any right, title, claim or interest in and to said strip of land constituting appellant’s roadbed. (Since this cause has been appealed, the county has given its assent to the use of all of said road to appellant), and is in equity estopped. Dunklin County v. Chouteau, 120 Mo. (5) Appellant holds this property under a solemn contract with the State made with its grantor, the Cape Girardeau Macadamized and Plank Road Company, and respondent can no more destroy appellant’s rights in this strip of property than it can destroy the rights of any other citizen in any kind of property. Dartmouth College Case, 4 Wheat. 518.

      T. D. Hines, Robert L, Wilson and M. A. Dempsey for respondent.
    (1) A charter will in general be construed so as to conform to the general law. McRotee v. Orphan, 59 Cow. 437; Abbott’s Digest Corporations, 151, 152. (2) The charter of the Cape Girardeau Macadamized Plank Road Company specified no period for its existence, and its corporate life, therefore, expired February 28, 1871, twenty years after the charter was granted. Laws 1851, p. 132; R. S. 1845, p. 231; Laws 1851, p. 250. (3) The general turnpike act (which should apply only to corporations formed under it, and not corporations created by special charter) required that the articles should set forth the term- of years to which the- existence of the association shall be limited, which shall not exceed thirty. No term of years being set forth, the general corporation limitation of twenty years should prevail. Laws. 1851, p. 250; R. S. 1845, p. 231. (4) The roadbed in question was a public highway, established by public authority, for public use, and is to be regarded as a public easement and not as private property. The right to travel over the road was an easement vested in the public, and when the charter expired this easement continued, disburdened of tolls, but otherwise unaffected. State ex rel. v. Hannibal & Ralls Go. G. R. Co., 138 Mo. 332; Campbell on Highways, No. 8, p. 8; No. 14, p. 11; Benedict v. Gait, 3 Barb. 469; Davis v. Mayor of New York, 14 N. Y. 516; St. Clair Co. Turnpike Co. v. Illinois, 96 U. S. 63; 27 Am. and Eng. Ency. Law, 320; Pittsburgh, etc., v. Com., 104 Pa. St. 583; State v. Lake, 8 Nev. 276; State v. Curry, 6 Nev. 75; State v. Dayton, 10 Nev. 115;' Wood v. Truke Co., 24 Cal. 474; Craig v. People, 47 HI. 487; Police v. Jury, 44 La. Ann. 137; Hayward v. Mayor, 8 Barb. 492; Hooker v. Utica, 12 Wend-. 371; State v. Passiac, 42 N. J. L. 524; State v. Mayor, 29 N. J. L. 441; Jersey City v. State, 30 N. J. L. 521; State v. Atlantic City^ 34 N. J. L. 90; State v. Leith, 83 Cal. 239; Dawes v. Hawkins, 8 C. B. N. S. 857; State v. Western, etc., 95 N. Car. 602; Kansas v. Lawrence, 22 Kan. 438; Blood v. Woods, 95 Cal. 78; People v. Davidson, 21 Pac. 538; State v. Maine, 27 Conn. 641; Central Bridge v. Lowell, 15 Gray 106; People v. Newburg, 86 N. Y. 302; Heath v. Barrymore, 50 N. Y. 302. (5) The claim of fee simple to the roadbed as a defense is untenable because: (a) The company had no power to acquire fee simple title by deed. Kellogg v. Malin, 50 Mo. 496. (b) The deed offered in evidence does not purport to be a'Conveyance in fee simple, but to be a grant of a strip of land to be used as a roadway forever. In other words, it amounts to the dedication of the land as a public highway, (c) A large portion of the roadbed had been used as a county road prior to the organization of the company and was burdened with a public easement which the owners of adjacent land could not convey. (d) Even if the present company acquired and possesses the fee simple title to the land over which the roadbed passes, such title is subject to an easement in the public — an easement which is indefeasible and perpetual. “Once a highway always a highway.” A turnpike is regarded as a public easement and not as private property. Every traveler has the same right to use it, paying the toll established by law, as he would to use any other highway. Ralls Co. case, 138 Mo. 332. (6) The law of estoppel can not be invoked against a county. Hudeberg v. St. Francois C'o., 100 Mo. 69; Sturgeon v. Hampton, 88 Mo. 203. (7) Possession cannot be adverse so long as it is held under a lease or license. It cannot be adverse if held in subordination to the true title. Handlan v. McManus, 100 Mo. 124. (8) If the possession in its conception is friendly, then it cannot be converted into one of hostility by mere mental intention. Some notice or act indicating an intent to disseize is necessary. Com-stock v. Eastwood, 108 Mo. 41; Meier v. Meier, 105 Mo. 411; Budd v. Collins, 69 Mo. 129; Wilson v. Lerche, 90 Mo. 473; Pitsman v. Boyce, 111 Mo. 387. (9) The possession of the company has at no time been exclusive. The public has occupied and used the road as a highway continually.
   IN DIVISION TWO'.

GANTT, J.

— This is an appeal from the judgment and decree of the St. Francois Circuit Court perpetually enjoining and restraining the defendant, its officers, agents, servants, successors and assigns from further maintaining toll gates oni a certain road or highway, designated as a free public highway beginning at the city of Cape Girardeau, running thence to Jackson, the county seat of Cape Girardeau county, and from thence to the town of Burfordville, formerly known as Bollinger’s Mill.

The petition alleges that said road is now and for more than fifty years has been a public highway and is the main thoroughfare between the city of Cape Girardeau and the towns of Jackson and Burfordville; that the defendant is a corporation organized under the laws of this State and that without authority it maintains on said highway, at various points, certain bars and obstructions commonly known as toll gates, and that it prohibits and prevents the public from making fair and proper use of said highway; that the existence and maintenance of such toll gates obstruct free travel over said road and constitute a continuous public nuisance and prays that the nuisance be abated and the defendant, its officers, agents, servants, successors and assigns be perpetually enjoined from in any way further obstructing said highway and from preventing free travel thereover and for such other and further relief as the court may deem meet.

The defendant in its answer admits that it is a corporation organized under the laws of this State and as such is the owner in fee of all that fifty-foot strip of ground upon which it has constructed its macadamized and gravel road in the county of Gape Girardeau and State of Missouri, beginning at the intersection of Pacific street and Broadway formerly named' Harmony street and called Jackson street, thence in a general northwesterly direction to and through the city of Jackson, the county seat of Cape Girardeau county, and thence in a westerly direction to the town of Burfordville formerly known as Bollinger’s Mill. Further answering defendant .says that under the law of its incorporation it was authorized to and in 1882 it did acquire in fee simple all that strip of land fifty feet wide upon which it has constructed and now has its gravel roadbed over the route above described and that it has been in the sole and exclusive possession of the said strip of land ever since then, claiming, using and enjoying all the rights of ownership ovér the same. That its deed for and to said strip of land was placed of record in 1882 and is now and has been at all times since then of record. Defendant further states that it acquired said strip of land from the Cape Girardeau Macadamized and Plank Road Company and that said last-named company was a corporation created by an act of the General Assembly of the State of Missouri, approved February 28, 1851, entitled, “An Act to incorporate the Cape Girardeau Macadamized and Plank Road Company.” That the said Cape Girardeau Macadamized and Plank Road Company had the right under its charter to acquire by deed, gift, purchase, appropriation, or condemnation, a strip of land not exceeding one hundred feet in width, in fee simple, for the purpose of building a roadbed thereon, and that its charter was not subject to legislative “alteration, suspension or repeal,” but was to and did have “continued succession” with the other usual rights of bodies politic and corporate, “including the right to sell any part or all of its real estate so acquired.” That said Cape Girardeau Macadamized and Plank Road Company acquired the said strip of land fifty feet wide, for a valuable consideration, by warranty deed, and placed the same of record in 1855, and that no part of said strip of land since 1855 has belonged to the public, or to the State of Missouri, or to the County of Cape Girardeau, but that it has at all times since then remained in the open, notorious and exclusive possession and ownership of this respondent and its grantor. That the stockholders of its grantor had expended more than $75,000 in grading, macadamizing, graveling and bridging said road, and that since the acquirement of said strip of land in 1882 it has expended more than $66,000 in, the reconstruction of said road on said strip of land so as to make same conform to the law of this State. And, further answering, respondent denies each and every averment in relator’s petition set out, except the admission of its corporate existence, as hereinabove pleaded, and, having fully answered, prays for judgment and costs.

And, for a further answer, respondent says that the relator in this proceeding is seeking to take and deprive it of its property and of its rights to hold, own and enjoy property without due compensation and in its efforts to do so the relator violated sections 4, 15, 21, 30' and 32 of article 2 of the Constitution of Missouri, and section 10, of article 1, section 4 of article 4, of the 14th Amendment of the Constitution of the United States, which prohibits the taking of private property without compensation therefor. And respondent now says that its stockholders have never •been repaid for the' money they paid to acquire and buy said strip of land, and for the building of its toll houses and bridges along and over said road, and that in buying said strip of land, toll houses, bridges and roadbed this respondent and its grantor were following the universal custom and the settled policy of corporate law in this State in that the last board of directors of an outgoing corporation shall act as trustees for making sale of lands and other tangible property and assets belonging to it, and the respondent avers that under the law of this State, and under the custom and settled policy relating to the closing up of corporations in this State, it bought, in good faith, this property and has for more than twenty years been in the possession of the same, expending annually many thousands of dollars in the improvement and betterment of said property. That the county of Cape Girardeau was a stockholder in the Cape Girardeau Macadamized' Plank Road Company, and that it sold its stock to private individuals in 1882, at or about the time that this respondent bought the strip of land or roadbed, and so this respondent says that the county of Cape Girardeau and all of its citizens have seen and insisted upon this respondent making these yearly expenditures upon its road, .although said county has no interest in and to said road, and has not had any interest in and to any part of said road since 1882, when it sold out to the parties now holding the stock of this respondent. Wherefore, having fully answered, it again prays to be discharged.

To which answer plaintiff filed the following reply:

“Comes now the relator herein and for amended replication to respondent’s answer denies each and every allegation therein contained, except such as are hereinafter specifically admitted, and prays judgment as heretofore. And, further replying, relator denies that the respondent is or ever was the owner in fee of the fifty-foot strip' of ground upon which it has con-structed a gravel road between Cape Girardeau and Bollinger’s Mill, running through the town of Jackson; denies that it ever constructed any road at any time, and avers that it had no authority to acquire a fee simple title to any road or highway whatever. And, further replying, relator denies that in 1882, or at any time, it acquired in fee simple that strip of land, fifty feet wide, extending from Pacific street, in the city of Cape Girardeau, through the city of Jackson to Burfordville, and denies that it constructed a road thereon, and avers again that it had no authority to acquire any fee simple title to any roadway or roadbed whatever; and further denies that respondent is now and'has been in the sole or exclusive possession of said strip ever since 1882, but' avers that said strip of land is now and has been for more than fifty years a public highway used and traveled by the public, subject only, however, to the right of a former company to collect tolls thereon from the year 1851 to 1871.
“Relator further denies that respondent acquired from the Cape Girardeau Macadamized and Plank Road Company any strip of land whatever, and denies that said Cape Girardeau Macadamized and Plank Road Company had any authority to convey any road or highway which it may have owned to respondent, or to any one else; and further avers that at the time of the alleged conveyance the Cape Girardeau Macadamized and Plank Road Company, by lapse of time, had lost its right to take tolls upon said road, and had no right whatever to convey to the defendant, or any other person or corporation, the right to take tolls upon said highway, or the highway itself. And further, relator avers that said Company during its corporate existence, had no authority or power to convey its road to any person; that it became defunct on February 28, 1871, and that the persons purported to make the conveyance of its property were not the persons pointed out by the law for so doing, and that said purported conveyance is wholly' inoperative and void.
“Relator further avers that the Cape Girardeau Macadamized and Plank Road Company has no power or authority under its charter to acquire, by deed, gift, purchase, appropriation or condemnation, a strip of land, not exceeding one hundred feet in width, in fee simple, for the purpose of building a road thereon, and, further, denies that it ever acquired, either by deed, gift, purchase, appropriation, or condemnation any lands in fee simple; but that the only rights which it ever acquired were rights of way for and during the period of its corporate existence, and for the purpose of building and maintaining a public road and taking tolls thereon during its corporate existence, and the further right to occupy the public or country roads within the county.
“And, further replying, relator says that in the year 1851, and long prior thereto, there had existed a public highway running between the town of Cape Girardeau, on .the Mississippi river, in said county, to the town of Jackson, the county seat of said county, and thence on to the town of Burfordville, in said county, which' road was the main traveled road between said points in said county, and maintained and kept up by and under the supervision of the county court of said county; that in the year of 1851 the State Legislature by an act entitled, ‘An Act incorporating the Cape Girardeau Macadamized and Plank Road Company,’ approved February 28, 1851, incorporated the Cape Girardeau Macadamized and Plank Road Company for the purpose of maldng an artificial road from the city of Cape Girardeau, in Cape Girardeau county, by way of the town of Jackson, in said county, and thence to a point on Whitewater, in said county, called Bollinger’s Mill, and now known as Burfordville, thence to a point known as Mine LaMotte, or the vicinity thereof, in the county of Madison; and that thereafter, pursuant to said charter, the said Cape Girardeau Macadamized and Plank Road Company undertook to and did construct a road from Cape Girardeau through Jackson to Burfordville, in said county; that in constructing said road, the said company took and appropriated for use as a road a large portion of the old country road between Cape ‘Girardeau and Jackson and Burfordville, and that thereafter the portions of the old country road not so appropriated by the company were abandoned by order of the county court of said county, and that portions of the old road not appropriated thereafter reverted to the original owners, and ceased to be used in- any way as a public highway; that said company constructed toll gates on said road, to-wit, one at and near the city of Cape Girardeau, two at and near the town of Jackson, and one at and near the town of Burfordville; that the road so constructed by the Cape Girardeau Macadamized and Plank Road Company has ever since been in existencé and known and used as a public highway, and that said Cape Girardeau Macadamized and Plank Road Company, from and after the time of its construction and until the 28th of February, 1871, rightfully and under the terms of its charter, collected from the public using the road tolls for passage thereover. Relator further avers and says that from and after the time of the abandonment of the portion of the old road by the county court, the highway so constructed was the only public highway leading directly from Burfordville to Jackson and from the town of Jackson in Cape Girardeau county to the city of Cape Girardeau. Relator, further replying, says that the charter of said company and all its rights in and to said roadway and particularly to take tolls for the use thereof wholly ceased upon the 28th day of February, 1871, when, by operation of law, it ceased to exist. But relator says that notwithstanding the right of said company with relation to said road had then ceased, the former officers of said company and the stockholders thereof, undertook to and did thereafter for a long space of time, without any right or authority, bar the public from the free use of said highway and compel the public to pay tolls for traveling thereover; and that thereafter, to-wit, on the — day of —, 1882, the persons wrongfully claiming to be stockholders and officers in the old company undertook to perpetuate the right to take tolls upon said highway and to prevent the public from at any time thereafter having the free use of said road, by obtaining articles of incorporation of the defendant, the Cape Girardeau and -Jackson Gravel Road Company, and obtaining a purported deed for the rights, property and franchises from the old company to respondent, which has and had no authority to acquire any road, but only to build one; that said pretended stockholders and officers of the old company in the formation and organization of a new company created a paper company without assets and that not a dollar of money was paid by any of the stockholders of respondent company for any share- of stock, but that the whole transaction was a scheme contrived with a view to defraud the public out of its public highway forever, and to perpetuate the franchise to take tolls which had long* expired by operation of law. And, further replying, relator says that ever since such time the respondent company, by its officers and agents, has arrogated to itself the right to exclude from the use of said highway from Cape Gir’ardeau_to Jackson and Burfordville, the general public, except upon payment to it of a toll for the use of said road.
“The relator avers that upon the expiration of the charter of the old Cape Girardeau Macadamized and Plank Road Company, on February 28, 1871, all the rights in and to said roadway reverted to and became vested in the public as a matter of right. That the purported conveyance from the said company to the Cape Girardeau and Jackson Gravel Road Company was inoperative and void, and that the respondent company has now no right whatever to-exact any toll from the public for the use of said road, and maintains the same toll gates and obstructions upon said road in violation of the law.
“Arad, further replying, relator says that this proceeding is not violative of the sections of the State and Federal constitutions as set forth by the respondent. And, further replying, relator says that the stockholders never paid a single dollar to the respondent company and have spent not a single dollar for the maintenance of said road, but on the contrary, all the money which has been expended for the maintenance of said road has been extracted by said company wrongfully and unlawfully from the traveling public, and in addition to the funds so spent upon repairs, said stockholders have received for their own personal use large dividends from their stock, extracted wrongfully and unlawfully from the traveling public; and denies that this respondent company bought the road aforesaid in good faith. Wherefore, the relator again prays judgment for a perpetual injunction as heretofore and for his costs in this behalf expended.”

The following facts form a sufficient basis for the opinion and judgment of this court: On February 28, 1851, by a special act, the General Assembly of this State incorporated “The Cape Girardeau Macadamized and Plank Road Company” with a capital stock of $75,009, and by said name to have continued succession. . [Laws of Missouri, 1851, page 132.] Under said charter the company was formed which constructed a toll or turnpike road from Cape Girardeau to Burfordville by way of Jackson. This corporation continued to operate said road as a toll road until 1882, when the defendant company was organized under article 4, chapter 21, Revised Statutes 1879, for the purpose of maintaining and owning a gravel road, and has maintained and operated it to the present time. In the year 1851, the original company obtained from propierty-owners along its right of way from Cape Girardeau to Jackson, a deed to a strip of land fifty feet wide and constituting its right of way. This deed recites that, “Whereas it is the object and intention of the undersigned grantors to secure to said company for the purpose aforesaid a convenient and permanent right of way,” and then “grant, bargain, sell and convey and confirm unto said company all their rights, title, claim and interest, ... to have and to hold . . for the purpose aforesaid to the said road company forever,” and then follows a special warranty title. No title was ever obtained to the right of way of that portion of said road extending from Jackson to Burfordville by deed, conveyance or condemnation proceedings. On December 23, 1882, certain persons purporting to be directors of the Cape Girardeau Macadamized and Plank Road Company undertook to convey, by deed to defendant, all its personal property and right of way from Cape Girardeau to Jackson, as well as certain parcels of land lying outside of the right of way. This deed does not convey right of way from Jackson to Burfordville. It was stipulated that the county of Cape Girardeau was a stockholder in the Cape Girardeau Macadamized and Plank Road Company and held 960 shares for which it paid' $22,500. That in 1882, the county court sold this stock to L. H. Davis, W. F. Rodney and L. F. Klosterman for $1,720. Various orders of the county court appointing commissioners to vote the county’s stock for officers of said company from 1872 down' to and including June 5th, 1882, were read in evidence. The circuit court found from the evidence that there was a public road from Cape Girardeau to Jackson prior to the building of the turnpike or toll road and that a considerable portion of it was appropriated by the original toll road company. The toll road followed the general route of the old! county road and as a consequence the old road was abandoned. No showing was made to the effect that this old county road was ever established by proceedings and proper orders of record in the county court, but the evidence tended to prove that as a matter of fact it existed prior to the passage of the Act of February 28, 1851, incorporating “the Cape Girardeau Macadamized and Plank Road Company,” but no public road seems to have been established over the route of the toll road from Jackson to Burfordville prior to the construction of the toll road. The county never has owned any stock in the defendant company.

I. This cause was argued and submitted with the cause of State ex rel. Hines v. Scott County Macadamized Road Company, ante, page 54, and many of the questions discussed and determined in that case are present in this, but there are some marked differences in the facts of the two eases. In the Scott County Gravel Road Case, the charter privileges were expressly limited to fifty years, whereas in this case, no limitation of the duration of the charter is fixed in the special act creating the company, and we must look to the general laws to ascertain what, if any, limitation was provided. The revision of 1845 was then in force and provided that “every corporation, as such, has power: first, to have succession by its corporate name for the period limited in its charter, and when no f&riod is limited, for twenty years.” [R. S. 1899, sec. 971.] This statute has been held to apply to all corporations except charitable and educational institutions and those in which the length of corporate existence is fixed in the charter itself. [State ex rel. v. Payne, 129 Mo. 468; State ex rel. v. Ladies of Sacred Heart, 99 Mo. 533; State ex rel. v. Lesueur, 141 Mo. 29.] We think the circuit court properly ruled that the charter life of the Cape Girardeau Macadamized. and Plank Road Company was limited by the general corporation laws in force at the time of its incorporation to a term of twenty years, and not by the general act for the incorporation of turnpike companies approved February 27, 1851, which has reference only to companies under its provisions, and not to special acts like those under which said company was created.

But it is urged with much force and plausibility that inasmuch as the act of February 28, 1851, incorporating the Cape Girardeau Macadamized and Plank Road Company, by the 11th section thereof authorized “said company to receive by deed, gift, purchase or other conveyance a strip of real estate over which to construct said road . . . for carrying into effect the objects of this company; but if said strip of real estate cannot be obtained by said company by gift, purchase or otherwise . . or if the owners be infants, married women, etc., . . . the fact shall be reported to the judge of the circuit court . . . and said judge shall appoint three disinterested persons (freeholders) of said county, to view said lands required for said company who shall, on oath, value the same, taking into consideration the benefits which said road will be to persons owning said lands, and assess the damages if any and condemn said land for the use of the road, etc. . . . The judgment of the court or judge in favor of said company shall vest in said company a fee simple title to the strip of land so condemned, ’ ’ the said company was invested with the power to acquire a fee simple interest in its right of way and did acquire such interest, which passed to defendant by the deed of December 23, 1882, free of any rights of the public in and to the same as a free public highway. Counsel also invoke sections 12 and 33 of said special act which provide that'the said company may “own in fee simple . . . pieces and parcels of land, along the line of said road, for the purpose of procuring timber and other materials from the same, for the use of said road and for erecting toll houses thereon” and “may at any time sell any such tracts or parts thereof, and execute conveyances to the same in the manner prescribed by law;” and exempts said company from the provisions of section 7 of the first article of the act of March 19, 1845, entitled “An Act concerning corporations,” which provided that ‘ ‘ the charter of every corporation that shall hereafter be granted by the Legislature shall be subject to alteration, suspension and repeal, in the discretion of the Legislature.”

In view of these provisions of the act, counsel for defendant insist that the legislative intent was to create a perpetual corporation and to grant it a fee. simple in its right of way. As held in State ex rel. Hines v. Scott County Macadamized Road Co., 207 Mo. 54, the company did not obtain a fee simple title in its roadbed. This court, beginning with Kellogg v. Malin, 50 Mo. 496, has construed charters granting the power to take and hold lands in fee simple for a railroad right of way, to mean no more than the right to acquire an easement so long as it needed the land for the purpose for which it was taken. In that case, Judge Wagner, speaking for the court, said: “It is true that in speaking of the title which the company acquires, the Legislature here uses the term ‘fee simple’; but did it contemplate a fee simple according to the technical legal meaning of the term? ... In determining the consideration to be paid by these roads for the right of way, the benefits and advantages accruing to the owner are taken into calculation. The benefits and advantages, then, are considered as forming a part of the purchase-money. . . . The use is vested in the public, but the reversionary title still continues in the owner of the soil. In my opinion, notwithstanding the language used, nothing more than an easement passed to the road,” etc. That doctrine was reannonnced in Venable v. Railroad, 112 Mo. 103, and in Chouteau v. Railroad, 122 Mo. l. c. 385; Boyce v. Railroad, 168 Mo. 589, et seq. While counsel urge that Kellogg v. Malin, 50 Mo. 496, should no longer be followed, we are of opinion that a rule of law so long established and adhered to should be considered settled, especially where the matter has been so thoroughly reconsidered and sustained. The argument then that the Cape Girardeau Macadamized and Plank Road Company acquired a fee simple which it could transmit after it had ceased to be a corporation cannot be accepted as sound. We think it is clear that the road only obtained an easement over the right of way during its corporate life, which expired in 1871. This conclusion is reinforced by the 12th section which permits the company to acquire in fee simple lands along its route which it is authorized to sell and convey, thus emphasizing the fact that it did not have the power to convey its right of way in fee simple.

II. Another contention in this case not made in the Scott County Road Case is that as to that portion of the road between Jackson and Burfordville defendant has title by virtue of the Statute of Limitations. It is obvious at once that this is not a claim as against the owner of the soil, by adverse possession, but is an attempt to assert a right to- an easement by adverse possession as against the public.

When it is recalled that the charter of the Cape Girardeau Macadamized and Plank' Road Company created an easement in the public and that from the date of its construction in 1851, up to this time, the public has continuously availed itself of that easement subject only to the easement granted to said company to take specified tolls and that defendant is asserting that easement under the franchise of the original company and by purchase therefrom, it is clear, we think, that neither the possession of the original company, defendant’s grantor, nor defendant’s possession, can he said to have been exclusive, bnt was held in common with the public; the public holding the possession and exercising the right to travel subject only to the payment of tolls to defendant’s grantor and defendant. Notwithstanding it may be said that the easement in a highway may be acquired by adverse user for the same length of time that adverse user of the land would give title in the land as against the owner, it has never been ruled that the public for whose benefit the easement is maintained has lost its right by the payment of the tolls for the limitation period. Such a claim ignores a fundamental element of title by adverse possession, to-wit, that it must be exclusive. Two concurrent easements were acquired when the road was constructed under the charter, the easement of the public to use and travel over the road, subject only to the payment of tolls, an easement which it has continuously asserted from 1851 to the present time, and an easement in the Cape Girardeau Macadamized and Plank Road Company, during its corporate existence, rightfully to collect the tolls for such use of the road, and since its charter expired the public has continued to exercise its easement of a highway and submitted only to defendant’s claim of tolls, but never to a deprivation of its right of highway.

But defendant further asserts that its rights have become fixed by the laches of the public and lapse of time and in support of this position relies upon Dunklin County v. Chouteau, 120 Mo. 577. In that case, this court held that the doctrine of laches applied to a county or other municipal corporation as well as to individuals. [Railroad v. Marion County, 36 Mo. 295; State ex rel. v. West, 68 Mo. 229; Boone County v. Railroad, 139 U. S. 684; 1 Dillon on Munic. Corp. (4 Ed.), sec. 548.] But it was also said: “Distinction must also be made between property held for strictly public purposes, as for streets, commons and the like, and property held by a corporation in its private character. [2 Dill. on Mun. Corp., sec. 675.] This distinction is made in our present Statute of limitations, Revised Statutes 1889, sec. 6772,” now section 4270, Revised Statutes 1899. As pointed out by Judge Anthony in the circuit court, “If the defendant had gained any rights, to the road in question, by limitation or laches, they were not against the county or the property of the county, but against the public, the effect of which, if such rights have been acquired, is to deprive the public of a free public highway. The public first became entitled to use this road as a free public highway immediately upon its construction and unless its rights have been barred by laches or the Statute of Limitations, it is still entitled to exercise such rights. In Brown v. Carthage, 128 Mo. 10, and Williams v. St. Louis, 120 Mo. 403, it is held that the Statute of Limitations does not run against land dedicated to public use, and in St. Louis v. Railroad, 114 Mo. 13.” And we agree with him that any laches of the county authorities did not operate to divest the public of its right to use and travel over this road as a free public highway disburdened of all tolls and exactions after the charter of the Cape Girardeau Macadamized and Plank Road Company expired, nor is it estopped by the fact that the county court in 1882 sold its stock in said road corporation.

III. As to the questions raised as to the remedy by quo warranto, “perpetual or continued succession,” and the alleged violation of defendant’s constitutional rights, we have already expressed our views in the companion case of State ex rel. Hines v. Scott County Macadamized Road Co., 207 Mo. 54. This proceeding does not seek nor does the judgment of the circuit court appropriate any of defendant’s property, acquired under section 12 of the Act of 1851; it simply enjoins the further maintenance of the unauthorized toll gates upon this public highway and the exaction of illegal tolls. In our judgment the said Cape Girardeau Macadamized'and Plank Road Company became disburdened of tolls under the Act of 1851, on February 28, 1871, and that the alleged deed of December 23, 1882, conveyed no title to defendant, because, there was no such corporation as the Cape Girardeau Macadamized and Plank Road Company in existence at that date under the laws of this State, and the road and franchises said deed purported to convey had long prior thereto become vested in" the public free from any power of said defunct corporation to transfer the - same. [State ex rel. v. Gravel Road Company, 138 Mo. l. c. 345.]

The judgment of the circuit court is affirmed.

Fox, P. J., and Burgess, J., concur.

IN BANC.

PER CURIAM.

— Upon a rehearing of this case before the Court in Banc, the foregoing opinion of Gantt, G. J., in Division No. 2, is adopted,

Burgess, Vallicmt, Fox, Lamm, Graves and Woodson, JJ., concurring therein.