Where a land-owner granted a right of way to a railroad company organized under a charter in perpetuity, and the grant contains no limit as to time, the easement will be perpetual, unless terminated by release or abandonment. Where such railroad, with its appurtenances, is subsequently pledged to the state in security for a loan, and, the pledge being forfeited, is sold by the state, he easement passes by the sale, and is vested in the purchaser. This result is in no way affected by the fact that the purchase is made, mediately or immediately, by another railroad company, if there be legislative authority to make the purchase, and if the original object and consid eration of the grant of the easement be not thereby changed or defeated Judge Bowen's term of office expired on the 9th day of February, 1858, when he was succeeded by Judge Sutliff. VOL. VII-1 1 Junction Railroad Co. v. Ruggles. IN chancery. Reserved in the district court of Erie county. On the 8th day of March, 1836, the general assembly of Ohio 2] passed "an act to incorporate the Ohio Railroad Company," *and vested it "with the right to construct a double or single railroad or way from some suitable point, to be selected, on the east line of the State of Ohio, in the county of Ashtabula, from, at, or near the northeast corner of the county of Ashtabula, and to pass westwardly through the counties of Ashtabula, Geauga, Cuyahoga, Lorain, Huron, Sandusky, Wood, and Lucas, to the Maumee river,” etc. And the stockholders were by this act "created a body corporate, and shall remain a corporation forever, under the name of the Ohio Railroad Company," with perpetual succession. On the second day of January, 1837, Almon Ruggles executed and delivered to the Ohio Railroad Company, an instrument in writing, under seal, but not acknowledged, and attested by but one witness, reciting that "If the Ohio Railroad Company shall locate the road referred to in their charter, through any lands owned or possessed by me, for the consideration of the location of said railroad, I hereby quitclaim to said company so much of said land as said company are by their charter authorized to take for the purposes of the location and construction of said road; and the right of immediate possession is hereby given to said company, for the consideration above mentioned; and I further grant to said company, the right of taking and converting to their own use any stone or gravel," etc. At the date of this written instrument, Almon Ruggles owned and was in possession of a farm, in the township of Vermillion, Erie county. The Ohio Railroad Company was then, by its charter, authorized to take, for the purposes of the location and construction of its road, a strip one hundred feet wide, across the lands through which it might be located. Soon after the date of said written instrument, said company located the road referred to in its charter, through said farm of said Ruggles, and with his consent, and took possession of the roadway, and commenced the construction of the road, when the board of public works of the State of Ohio took possession of the road, as hereinafter mentioned. By an act of the general assembly of the State of Ohio, passed 3] *on the 24th day of March, 1837, Swan's Stat. 559, every rail Junction Railroad Co. v. Ruggles. road company in the state, two-thirds of whose authorized capital stock had been subscribed, became entitled to receive a loan of credit from the state, equal in amount to one-third of such authorized capital stock, "to be delivered to the company in negotiable scrip, or transferable certificates of stock of the State of Ohio," etc. And "the receipt of such scrip, or any portion of scrip, by any railroad company, shall operate as a specific pledge of the capital stock, estate, tolls, and profits, of such railroad company, to the State of Ohio, to secure the repayment of the sums advanced in pursuance of this act," etc. And in case any such company should receive such loan, and should "at any time fail in the punctual payment of the interest on the sums advanced, or in repaying the principal when redeemable, the governor shall be authorized, on behalf of the state, to take possession of the works of said company, and to place them under charge of the board of public works, to hold the same until, by the tolls and profits of the road, or by a lease of the road, engines, cars, and fixtures, or by sale thereof, the state be fully reimbursed." The Ohio Railroad Company availed itself of the provisions of this act, and made a loan of one hundred and fifty thousand dollars from the state. In July, 1842, the railroad company failed to pay the interest on this loan; and in January, 1843, the governor, on behalf of the state, took possession of the road, and all the property and effects of the company that could be found, and placed the same under charge of the board of public works. At the time the road passed into the hands of the state authorities, the right of way had been obtained by the company for most of the distance between the Cuyahoga and Maumee rivers, and considerable work had been done toward constructing the road, in driving piles, building bridges, etc. On the 12th day of March, 1815, the general assembly of Ohio passed a joint resolution directing the board of public works to sell to the highest bidder "all the personal property belonging to the Ohio Railroad Company that now is or may *hereafter come [4 into the possession of said board," . . and to "sell and dispose of the whole or part of the right of way, permanent fixtures, and chartered franchises of said company; and the person or persons, or body corporate, becoming the purchaser of such permanent fixtures, right of way, and chartered privileges, may exercise, use, Junction Railroad Co. v. Ruggles. possess, and enjoy the same, or so much thereof as may be purchased, as fully as the same could have been enjoyed by the said Ohio Railroad Company; provided that said permanent fixtures, right of way, and chartered privileges shall become forfeited to the State of Ohio, if the purchaser shall not, within five years commence, and within ten years complete said road or so much thereof as shall have been purchased by such person or persons, or body corporate," etc. Under this resolution a sale having been made in December, 1845, by the board of public works, to Ebenezer Lane, of "all and singular, the rights of way, permanent fixtures, and chartered privileges of the Ohio Railroad Company, to and in that part of the line of the said Ohio Railroad which lies between the west bank of the river Cuyahoga and the intersection and termination of the Mad River and Lake Erie Railroad, in the town of Sandusky, in Erie county, together with ten thousand shares of the capital stock of said company, and all the appendences, appurtenances, rights, privileges, immunities, and incidents belonging to the same," etc., on the 20th day of February, 1846, said board of public works formally granted, by deed of that date, said rights, fixtures, privileges, stock, etc., to said Lane, and to his successors forever, subject to the forfeiture mentioned in the said joint resolution. By an act of the general assembly passed March 22, 1850, the time fixed by said joint resolution for the commencement and completion of said railroad, was extended for the period of five years for commencing, and ten years for completing the same. The Junction Railroad Company, complainant, being engaged in the exercise of its chartered rights, in constructing a railroad from the city of Cleveland to the west line of the State of Ohio, 5] *to facilitate its object, purchased, for a valuable consideration, from Lane, the rights, interests, privileges, and stock of the Ohio Railroad Company, which he acquired by the sale to him by the board of public works. In the meantime Almon Ruggles died, leaving his son Richard his devisee as to a part of the farm taken by the Ohio Railroad Company for the purposes of the location and construction of its road. The Junction company located its road across the Ruggles farm, on the same strip of land upon which the Ohio Railroad was lo Junction Railroad Co. v. Ruggles. cated, and was about to send its agents there to construct that portion of its road, when the said Richard Ruggles denied the right of the Junction company to оссиру said strip, and threatened to sue it for trespass in case its agents came upon the land. Upon this state of facts the Junction company filed its bill, complaining of the action and threats of the said Richard Ruggles, and the hinderance and delay he thereby occasioned it, in the construction of its road, and asking the court to perpetually enjoin the said Ruggles, his agents and servants, from interfering with its rights in the premises. The case is heard upon bill, answer, replication, exhibits, and testimony. E. B. Sadler and W. F. Stone, for complainant. BRINKERHOFF, J. The instrument executed by Almon Ruggles to the Ohio Railroad Company, was more than a mere license revocable at will. It wanted but a more formal execution, to render it a legal conveyance of a perpetual easement in such lands as the grantee might appropriate in conformity to its terms. The Ohio Railroad Company having accepted the grant and complied with the conditions on which it was made, would, by virtue of this instrument, at least be entitled to enforce such legal conveyance; and regarding as done that which ought to be done, we treat the [6 instrument, for the purposes of this suit, as if it were a formally executed legal conveyance. Wilson v. Chalfant, 15 Ohio, 248. The instrument itself containing no limitation as to time, the duration of the easement granted would be perpetual, unless terminated by a release or abandonment. The remaining, and, indeed, the decisive question in this case, here presents itself. Was the easement of the Ohio Railroad Company, thus acquired, of such a nature as to be capable of being pledged in security of a loan, and, on failure to redeem the pledge, of being sold and transferred so as to vest the easement in the purchaser? or, in other words, was it capable of sale and transfer? And here, at the outset of this inquiry, it is important to notice that this easement in the Ohio company originated solely in voluntary contract between it and Almon Ruggles. It was not appropriated to the use of the company in the exercise by it of any right of |