THE RIGHT OF A CORPORATION CHARTERED IN ONE STATE TO HOLD REAL ESTATE IN ANOTHER.

SIXTEENTH SELECTED CASE.

THE STATE V. BOSTON, CONCORD AND MONTREAL RAILROAD COMPANY.*

The right of aliens to hold real estate in this State, considered. The right of the Supreme Court to issue the writ of quo warranto, is recognized in general terms by our statutes-the occasions are to be determined by common law rules. And, by those rules, it is apparent the writ is the appropriate mode in which to try any alleged usurpation of offices or franchises, inconsistent with the State sovereignty.

The right of a corporation chartered in another State, to hold lands in this State, discussed and granted.

THIS is an information, filed by the State's Attorney for the county of Orange, praying for a writ of quo warranto against the defendants, who are a railroad corporation just going into operation in the the State of New Hampshire. It is averred in the information that the defendants have, without authority from this State, erected a railroad bridge across the Connecticut River, and extending within this State, and that they have purchased and hold deeds of lands within this State, and that they occupy and use said bridge and land, claiming right to do so, and claiming to be owners in fee of the land; and the defendants are required to show by what warrant they "claim to take, hold, occupy, enjoy and exercise the premises and franchises aforesaid."

Testimony was taken, but as the facts fully appear in the opinion of the court, it is not deemed necessary to report the

same.

The opinion of the court was delivered by REDFIELD, CH. J.

This case has been argued, to some extent, upon both sides, upon the ground of an analogy, or supposed analogy between

*Reported in 25 Vt., 433 (1853).

the case of land owned by a foreign railroad corporation, and that of lands held by aliens.

I. As a preliminary proposition, we may safely assume, we think, that the escheating of the lands of aliens to the State sovereignty would be the very last remedy to which they would desire to resort, and that such a resort would only be made to avert some serious impending public calamity. Our titles are all allodial, in fact, if not in form, being a pure and absolute fee simple, and thus transferring an absolute title, which is impossible in England. The escheat of estates to the sovereign, in consequence of a conveyance to an alien, is a result of purely a feudal character.

It was so held because an alien, owing a foreign allegiance, was regarded as incapable of performing the feudal military services to the king, as lord paramount of all the land in the realm. Hence, the conveyance having carried the title out of the former proprietor, and the grantee being incapable of taking the estate, it was held to vest in the king, absolutely, at the death of the first grantee, as an alien could have no heirs to be invested with his bare possession, which was all the estate which ever existed in him, and which was always liable to be divested, at any moment, upon office found, as it was termed. Now none of these reasons exist in this country. There is no express prohibition in the constitution of this State against aliens holding real estate. But it has been supposed by some that there is such an implied prohibition contained in the thirty-ninth section, in these words: "Every person of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means, acquire, hold, and transfer lands," etc.

The most, then, which could be claimed in favor of the right to declare the lands of such as are, in the strictest sense, aliens, escheated to the State, is that such a general implied prohibition against aliens holding real estate, does exist in the State constitution. There is no provision in the constitution or the laws of the State for declaring the forfeiture or taking the escheat of such estates, and confessedly no such attempt has ever been made in the State, notwithstanding the acknowledged fact

that a large number of aliens constantly hold large quantities of land in the State. The most, then, which could be made out in behalf of such a proceeding, on the most favorable view, is, that it is strictissmi juris, a possible right of the sovereignty, but one which has always remained dormant, notwithstanding frequent occasions for its legitimate exercise.

II. In the next place, it seems to me that the right to interfere with aliens holding real estate in this country strictly and appropriately belongs to the national, and not to the State sovereignty. It goes upon the basis of some defect in allegiance; and allegiance is a matter pertaining altogether to the national sovereignty. They have the exclusive control of all relations between this country and foreign nations, or other citizens. And the States are expressly prohibited, in the United States Constitution, from attempting any stipulations; treaties or compacts, upon the subject. And the national government have already assumed to enter into stipulations with some European nations upon this particular subject. In the consular treaty, lately concluded between France and the United States, it is, by the 7th article, stipulated that in all the States of the Union, whose laws permit, Frenchmen shall enjoy the right of possessing personal and real estate, by the same title and in the same manner as citizens of the United States. And the President engages to recommend to such States as do not permit aliens to hold real estate, to pass such laws as may confer the right. This shows in what light the national sovereignty is disposed to regard this matter. Indeed, after proclaiming ourselves the asylum of the oppressed, and the home of the homeless and the destitute, it would have certainly an ugly sound to declare aliens incapable of acquiring and holding real estate in time of peace, they approving themselves peaceable and quiet dwellers upon our shores. Indeed, I conjecture it would be found, in fact, altogether impracticable to exercise any such power in these States, at the mere option of the State sovereignty, as is done in England, by what they denominate an inquest of office. That is the appropriate remedy for divesting aliens of real estate by way of escheat. It is a proceeding set on foot by the law officers of the crown, to try either the title or

right of possession, or the extent of the limits of land claimed by the crown. It seems originally to have been an ex parte proceeding, for the purpose of investing the king with the land, and then the subject was put to his petition, or monstrans de droit, as it was termed. But now, by statutes of 34 Ed. III, Chap. 14; 36 Ed. III, Chap. 13; and 2 & 3 Ed. VI, Chap. 8, it is provided that the claimant may traverse the inquest, and thus have the right determined at once by the jury. And as this proceeding is in the nature of a criminal procedure, and by consequence, in this State, the jury must be regarded as having, to some extent, the right to determine the applicability of such a common law proceeding to our situation and circumstances, it must, I think, be regarded as questionable how far any such procedure could ever be enforced, for the mere purpose of escheating to the State the lands of a quiet resident or non-resident alien, in time of profound peace, when no danger was apparent, imminent, or even remotely threatened.

III. Finally, it is not even suggested in argument that these corporations are absolute aliens, owing a natural foreign allegiance. And if they be, as is most probable, citizens of the United States, it would be a very remarkable proceeding to escheat their lands to the State, because they claim to hold the fee in the name of their corporation in the State of New Hampshire. It should certainly require a decided case of abuse of their legitimate powers to justify such a proceeding.

IV. But it seems to the court that this whole subject of the right of aliens to hold lands in this State has but a remote analogy to the usurpations which it is claimed this foreign corporation has perpetrated upon the sovereignty of the State. The right of this court to issue the writ of quo warranto is recognized in general terms by our statutes. The occasions. are left to be determined by the common law rules; and, by those rules, it is apparent the writ is the appropriate mode in which to try any alleged usurpation of offices, or franchises, inconsistent with the State sovereignty. And that seems to be the purpose of this proceeding.

The allegations in the information are not that certain persons, without being incorporated, usurp and claim to exercise

corporate functions, which is no doubt good ground for filing such information; but, "that there is existing and doing business in the State of New Hampshire a corporation established, constituted and chartered by the laws of said State, by the name," etc., "and that said corporation, without any grant from this State, erected a railroad bridge across Connecticut River, extending its stone abutments into Newbury, in this State, about ten rods, and ever since have occupied and used the same and claim the right and franchise of so doing." It is further claimed and charged that this New Hampshire railroad has purchased in this State two pieces of land between the Connecticut River and the Passumpsic Railroad, and the fee of another piece, across which the Passumpsic have already laid their branch road to Connecticut River; and the gravamen of the charge seems to be, "That the Boston, Concord and Montreal Railroad claim to hold said land in fee simple, as the absolute owners thereof; which right of taking, holding, possessing and enjoying the said land and railroad bridge, is a usurpation upon the State of Vermont."

This case having gone to proof, it appears the Boston, Concord and Montreal Railroad, a corporation extending by its charter to the line of this State, at Wells River (and two Vermont railroads, by express statute of the State, having permission to unite with that road, or any other New Hampshire road at this point), have erected a railroad bridge across the Connecticut River, and purchased some fifteen acres of land adjoining the terminus of their road at the line of this State, which land will be convenient for the use of the company in doing business at the line of the State if they should not unite with any Vermont road, and almost indispensable if they do so unite. There is no evidence that this corporation have run their cars into this State, or that they propose to do so, unless they effect an arrangement for a junction with one or more of the Vermont roads; but there is every reason to believe they have no such purpose.

By their charter, it is admitted, this corporation have permission to hold real estate, for the accommodation of their business, greatly exceeding what they now hold. The question, then, is whether the corporation, having purchased and taken