delivered the opinion of the court:
Counsel for the appellant advance three propositions as the basis of their claim that the decree should be reversed, viz.: First, that the appellant was in possession of the pass and the appellee entered upon and invaded its possession; second, that the appellant made the first location of its lines through the pass; and third, that it hаs the better title. We do not agree with any one of these propositions.
First, as to the possession. Prior to November 25 the appellant had been working on its grade north of the pass and had done some construction work down to the entrance of the pass at the north end, and possibly a little work within the pass at that end. Phelps’ land was at the north end of the pass, and no attempt had been made to make a survey in the pass south of that land. At' that time the appellant’s engineer started in to survey south from the Phelps land and immediately met the surveying party of the appellee, which was engaged in cross-sectioning and setting grade stakes on the line which had previously been surveyed and marked. The next day the prеsident of the appellant, having been advised by his attorney that if he could get the right of way fenced before the appellee’s construction outfit got there the attorney believed he could hold the right of way for the appellant, started a force of men to string two wires around the right of way. During the week the right of way was thus enclosed, the two forces of engineers of the appellant and the appellee all the time continuing their work on the land thus enclosed. This is all the work that appears to have been done by the appellant on the premises up to that time. It had no actual possession of any part of the premises, unless it was of a small part of the north end of the pass. It had not attempted elsewhere to exercise any dominion over the pass. The appellee, after the execution of the deeds to it on March 5, 1912, went upon the premises and made an examination of the line, preparing for the construction of the road, taking the grading cuts and fills, and making estimates for the' construction. It actually did enter into a construction contract, and the appellant had learned that the construction company was coming with its outfit and for that reason undertook the fencing of the right of way. It is clear that the appellant had no prior or exclusive possession of the pass on November 29, when it is claimed the tortious entry was made by the appellee. It did not afterwаrds acquire possession, except of such parts as it was actually engaged in working on. The most that could be claimed for it was a joint occupation with the appellee in a contest for the possession. The evidence does not sustain the essential allegation of the appellant’s bill that it was in the actual possession of the prеmises in controversy.
Second, the location. As between two railroad companies, the prior right to the appropriation of land for railroad purposes belongs to the company which first locates its line, and the first location belongs to that company which first defines and marks its route and adopts the same for its permanent location by аuthoritative corporate action. (Fayetteville Street Railway Co. v. Aberdeen and Rockfish Railroad Co.
Tfyird, the title. The Toledo, St. Louis and New Orleans Railroad Cоmpany, prior to the organization of the appellant, obtained from the owners deeds for the right of way over all the lands in the pass. Some of these deeds were subject to a condition subsequent for the building of the railroad by December i, 1904. New deeds were later executed in place of these, in which the date of building was December 1, 1909. No entry was еver made by any of the grantors or their heirs for failure to comply with this condition and no attempt was ever made to declare a forfeiture. Some of the deeds were conveyances in fee simple. The deeds of March 5, 1912, from the Toledo, St. Louis and New Orleans Railroad Company to the Gulf Lines Connecting Railroad of Illinois purported to convеy the located line for a railroad beginning at station 3985 of the location survey, situated on Main street, East Carmi, White county, Illinois, extending southerly through various counties, including Pope, to a point on the Ohio river near Brookport, in Massac county, including all rights of way and the lands conveyed to the grantor company in Pope county, including the land through the pass in controversy. This constitutes the appellee’s title.
The appellant’s title consists of the resolution of its board of directors locating its line, and deeds from the owners of the land through the pass in controversy, obtained subsequent to the deeds to the Toledo, St. Louis and New Orleans Railroad Company. The validity of this title depends upon the invalidity of the appellee’s title, and the appellant insists that the latter is void because of the expiration of the time limited for the building of the road in some of the deeds to the Toledo, St. Louis and New Orleans Railroad Company, because that company made no location of its railroad, because the appellee has made no location of its railrоad, because the Toledo, St. Louis and New Orleans Railroad Company had no power to convey its right of way, located line, franchises and all its property to the appellee and the deeds by which it purported to do so are void, and because the Toledo, St. Louis and New Orleans Railroad Company having failed to complete its railroad and put it in operation within ten years from its incorporation and having abandoned its intention to build a railroad, the property conveyed to it for that purpose reverted to the grantors' and passed by their subsequent deeds to the appellant.
So far as the appellant’s claim rests upon the failure of the grantee to comply with the cоndition subsequent for the building contained in some of the deeds it is of no force. A court of equity will not lend its aid to enforce a forfeiture because of a breach of a condition subsequent in a deed. (Toledo, St. Louis and New Orleans Railroad Co. v. St. Louis and Ohio River Railroad Co.
We have held that the evidence justifies the conclusion that the Toledo, St. Louis and New Orleans Railroad Company had made a location of its road on July 23, 1909. The sale and conveyance of its located line, right of way, franchise and other propеrty to the appellee, if valid, conveyed to the latter the prior right which the grantor had .to construct a railroad on this located line. It is insisted, on behalf of the appellant, that the attempted conveyance to the appellee was contrary to public policy and beyond the power of the grantor, and was therefore void and of no effect whatever. A railroad corporation has not, as a general rule, the power to sell its road and franchise without statutory authority. The powers of all corporations are such, only, as are conferred by the statute under which they are organized, and a public service corporation cannot, without the assent of the Stаte, sell or lease its entire property and franchise to another corporation and disable itself from performing the duties to the public imposed by its charter. (Chicago Gas Light Co. v. People’s Gas Light Co.
Admitting that the cоnveyance by the Toledo, St. Louis and New Orleans Railroad Company was beyond the corporate powers of that corporation, the law does not permit third persons having no interest in the corporation or its trust to dispute the validity of its conveyance. The ultra vires acts of the corporation may be objected to by the State, the сorporation, its stockholders or creditors, or the persons with whom the ultra vires transactions are had, but not by third persons having no interest in the subject matter. Railroad corporations have power, under certain circumstances, to make sales and conveyances of real and personal property. Whether any particular convеyance is in excess of this power is a question which concerns only the corporation itself, the State, or those persons having some interest or title in the corporation or the property involved. Where a corporation has power to hold real estate under any circumstances or for any purpose, its title cannot be questiоned by any person except the State. (Hough v. Cook County Land Co.
The appellant has no such interest as entitled it to enjoin the appellee from constructing a railroad in this pass. The only injury of which it can complain in a judicial tribunal is the invasion of some legal or equitable rights. It alleges that the appellee is acting beyond its authority undеr the law because the conveyance under which it claims was beyond the charter power of its grantor to make. This conveyance, however, did not injuriously affect any right of the appellant, and it has, therefore, no ground to complain. Neither the Toledo, St. Louis and New Orleans Railroad Company nor the appellee owed any duty to the appellant in regard to this land or to the title thereto. A stockholder in the grantor company might have an interest in restraining it within the limits of its corporate powers and the State might have an interest in preventing the usurpation and perversion of its franchises, but the appellant has no interest in these questions and cannot raise them to enable it to seize the рroperty which is the real subject matter of the controversy. New Orleans, Mobile and Texas Railway Co. v. Ellerman,
It is urged that by the abandonment of the right of way by the Toledo, St. Louis and New Orleans Railroad Company the property reverted to the original grantors of that company, and that they had the power to convey a good title to the appellant. There is no evidence of any intention to abandon the right qf way. To constitute such an abandonment there must not only be non-user but an intention to abandon. (Stannard v. Aurora, Elgin and Chicago Railroad Co.
The decree of the circuit court dismissing the bill was right, and it is affirmed.
affirmed.