had no power to authorize the construction of one railroad across another, the Supreme Court of the United States has an easement); Oakland R. Co. v. Oakland, Brooklyn & Fruit Vale Rd. Co., 45 Cal. 365, 373, 13 Am. Rep. 181 (has legal character of estate in property); People v. Duncan, 41 Cal. 507, 511 (franchise to construct turnpike road and collect tolls is personal trust reposed in grantee and is not assignable except with consent of granting party); California State Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398, 422 (is in nature of vested right of property subject to conditions); San Joaquin & Kings River Canal Irr. Co. v. Merced County, 2 Cal. App. 593, 84 Pac. 285 (is property subject to taxation). 188 U. S. 385, 394, 23 Sup. Ct. 463, hereditament; real estate in nature of 47 L. ed. 513 (ferry franchise is incorporeal hereditament-taxation case); Central Pac. Rd. Co. v. California, 162 U. S. 91, 127, 16 Sup. Ct. 766, 40 L. ed. 903, per Fuller, C. J. (is property, etc., a case of taxation of franchise); Wilmington v. Reid, 13 Wall. (80 U. S. ) 264, 268, 20 L. ed. 568, per Davis, J. (case of exemption from taxation); Veazie Bank v. Fenno, 8 Wall. (75 U. S.) 533, 547, 19 L. ed. 482 (“Franchises are property often very valuable and productive"), Conway v. Taylor, 1 Black (66 U. S.), 603, 17 L. ed. 191 (ferry franchise is property, and as sacred as other property); West River Bridge Co. v. Dix, 6 How. (47 U. S.) 12 L. ed. 535 (property held by an incorporated company stands upon the same footing with that held by an individual, and a franchise cannot be distinguished from other property); Bowman v. Wathen, 2 McLean (U. S. C. C.), 376, Fed. Cas. No. 1,740 (is an incorporeal hereditament). Alabama: Medical & Surgical Soc. of Montgomery v. Weatherly, 75 Ala. 248, 253 (corporate franchise is property, incorporeal it is true, but nevertheless valuable in the eye of the law); Horst v. Moses, 48 Ala. 129, 146 (an incorporeal hereditament); Stewart v. Hargrove, 23 Ala. 429, 436 (franchise of a toll bridge is properly within the bankrupt law and passes to the assignee in bankruptcy). California: City of South Passadena v. Passadena Land & Water Co., (Cal., 1908), 93 Pac. 490 (is a species of real property); Stockton Gas & Electric Co. v. San Joachin County, 148 Cal. 313, 83 Pac. 54 (is incorporeal Delaware: Wilmington & Reading R. Co. v. Downward (Del., 1888), 4 Atl. 720, 723 (is property and cannot be wantonly or of whim be taken away by legislative act and transferred to another). Florida: Gibbs v. Drew, 16 Fla. 147, 26 Am. Rep. 700 (are incorporeal hereditaments of intangible nature not embraced within terms, lands and tenements in act regulating unlawful detainer). Georgia: Averett v. Brady, 20 Ga. 523, 529 (ferry right is incorporeal hereditament. It grows out of the soil and may be granted). Idaho: Evans v. Kroutinger, 9 Ida. 153, 72 Pac. 882 (is an incorporeal hereditament which may be voluntarily transferred-question of right to transfer discussed, however). Illinois: Dundy v. Chambers, 23 Ill. 369 (ferry franchise is real estate, transferrable only in accordance with statutory provisions). Iowa: Lippincott v. Allander, 27 declared that: "The grant of a franchise is of no higher order, and confers no more sacred title than a grant of land to an Minnesota: McRoberts v. Washburne, 10 Minn. 23 (ferry is property entitled to protection same as other property). Iowa, 460, 1 Am. Rep. 299 (ferry species of property and transferrable franchise is included in the general subject to conditions lawfully imdenomination of incorporeal heredita- posed). ments, a term used to distinguish one of the different kinds of things real). Kentucky: Dufour v. Stacey, 90 Ky. 288, 296, 29 Am. St. Rep. 374, 14 S. W. 48 (ferry franchise is property alienable and descendable and a property right of which the legislature has no power to divest the owner); Frankfort, Lexington Lexington & Versailles Turnpike Co. v. Commonwealth, 82 Ky. 386, 388, 6 Ky. L. Rep. 391, 392 (the term "property" in its broad sense includes even a franchise). Louisiana: Maestri v. Board of Assessors, 110 La. 157, 528, 529, 34 So. 658 (is taxable property); State v. Morgan, 28 La. Ann. 482, 493 (franchises are incorporeal hereditaments known as a species of property, as well as any estate in lands, per Ludeling, C. J., in dissenting opinion, a case of exemption from taxation and construction of charter and right to transfer). Missouri: Carroll v. Campbell, 108 Mo. 550, 17 S. W. 884 (ferry franchise is property right); Capital City Ferry Co. v. Cole, etc., Transp. Co., 51 Mo. App. 228, 234 (ferry franchise is property, just as real estate or ordinary chattels are property and is entitled to protection). Nebraska: State v. Savage, 65 Neb. 714, 91 N. W. 716 ("property" includes all property tangible or intangible). New Jersey: State Board of Assessors v. Central R. Co., 48 N. J. L. 146, 283, 4 Atl. 578 (franchises are undoubtedly property and as such are taxable). New York: Hatfield v. Strauss, 189 N. Y. 208, 219, 82 N. E. 172, per O'Brien (a franchise is property assignable, taxable and transmissible); case affirms 102 N. Y. Supp. 934, 117 App. Div. 671; Mayor, etc., of New York v. Starin, 106 N. Y. 1, 8 N. Y. St. Rep. 655, 27 Wkly Dig. 124, 12 N. E. 631 (a ferry franchise is property, an incorporeal hereditament, as sacred as other property); People v. Utica Ins. Co., 15 Johns. (N. Y.) 357, 386, 8 Am. Dec. 243, per Spencer, J. (is a species of incorporeal Maryland: Jacob Tome Inst. of Port Deposit v. Crothers, 87 Md. 569, 585, 40 Atl. 261 (a vested right peculiar in its nature—a quasi property); Baltimore & Fredericktown Turnpike Road v. Baltimore, Catonsville & Ellicotts Mills Pass. Rd. Co., 81 Md. 247, 255, 31 Atl. 854 (franchise or corporate right to acquire land by right of eminent domain is an incorporeal hereditament, not a hereditament). See People v. Roblegal title to the land itself). erts, 158 N. Y. 162, 167, 158, 52 N. E. 1102. Michigan: Billings v. Breinig, 45 Mich. 65, 70, 7 N. W. 722 (franchise of keeping rope ferry is property possessing valuable incidents of other North Carolina: Worth v. Wilmington & Weldon Rd. Co., 89 N. C. 291, 301, 306, 45 Am. Rep. 679 individual; and, when the public necessities require it, the one as well as the other, may be taken for public purposes (is property-exemption from taxa- rights and interests in real and pertion). sonal property and also in easements, Ohio: Turnpike Co. v. Parks, 50 franchises and incorporeal hereditaOhio St. 568, 576, 35 N. E. 304 (is ments. Metropolitan City Ry. Co. v. property and nothing more-incor- Chicago West Division Ry. Co., 87 poreal-cannot be distinguished Ill. 317, 324. "It is clear upon authority that from other property). Pennsylvania: Shamokin Valley the franchise of a corporation is property, and as such, it may be a proper subject of taxation." Porter v. Rockford, Rock Island & St. Louis Rd. Co., 76 Ill. 561, 573, per Scholfield, J. Rd. Co. v. Livermore, 47 Pa. 465, 468, per Agnew, J. (land, in itself, is not a franchise; it is an absolute tenement; a corporeal thing. Franchise is an incorporeal hereditament). West Virginia: Mason v. Harper's Ferry Bridge Co., 17 W. Va. 396, 410, 417 (a ferry is an incorporeal hereditament-it is private property within a constitutional provision that private property shall not be taken or damaged for public use without just compensation). Wisconsin: Sellers v. Union Lumbering Co., 39 Wis. 525, 527 (is property-an incorporeal hereditament). Franchise is a seventh species of incorporeal hereditaments. 2 Blackstone's Comm. (Lewis's ed.) p. 506, *37; (Hammond's ed.) 67 [37]; (Wendell's ed.) 37 [38]; (Sharswood's ed.) 37; (Chase's ed.) 234 *37; Taylor's Law Gloss. (ed. 1858) p. 210. 'Besides the above hereditaments there are others * * * A franchise "is property which may be transferred by sale or otherwise, and it will descend to heirs like other property; and the owner has the same security for its protection under the constitution, as has the owner of any other property. * * * As this is a species of property derived by grant from the government, it follows, that if the government has no power to make the grant, either because it is contrary to public policy, or because the government had no title to the thing granted, no title will be conveyed to the grantee." Norwich Gas Light Co. v. The Norwich City Gas Co., 25 Conn. 19, 36, per Hinman, J. "A franchise is an incorporeal called hereditament known as a species of Franchises. * * Such are every property, as well as any estate in Liberty or Commodity which having their Creation at first by Special Grant of the King, or of their nature appertaining to him, are given to a common Person to have in them some Estate of Inheritance or for life," etc. Finch's Laws of Eng. 125 [38]. See §§ 33-36, herein. Property in its broadest and most comprehensive sense, includes all lands. It is property which may be bought and sold, which will descend to heirs, and may be devised. Its value is greater or less according to the privilege granted to the proprietors. Enfield Toll Bridge Co. v. Hartford & New Haven Rd. Co., 17 Conn. 40, 59, per Williams, Ch. J. Street railroads. "A franchise, both at common law and by New on making suitable compensation; nor does such an exercise of the right of eminent domain interfere with the inviolability York statute, is real estate, being classified as an incorporeal hereditament," and thus applies to street railroads. Thompson v. Schenectady Ry. Co., 124 Fed. 274, 278, per Ray, Dist. J. [citing 2 Wash. R. P. C. I., p. 291, § 2, note I, et seq.; 3 Kent's Comm. (12th ed.), p. 458; Laws N. Y. 1899, p. 1589, c. 712]. See also same case, 131 Fed. 577, 579, per Wallace, Cir. J. Exclusive right vested in street railroad to operate line in city is property right entitling company to raise question of forfeiture by injunction suit. Wilmington City Ry. Co. v. Wilmington & B. S. Ry. Co. (Del. Ch.), 46 Atl. 12. A franchise Gas light company. to carry on its business in a town and to lay conductors in the streets and highways for the purpose of delivering gas is property of which the gas light company cannot be divested except for cause and by due legal process. People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528, 47 N. E. 787, rev'g. 11 App. Div. 175. In a strict sense a ferry franchise is not real estate, but it is held that it partakes so far of the nature of real estate that it may be partitioned in the same manner as real property, and a franchise to cross a river and receive tolls is so connected with the land on each side of the river as a part of the ferry that it may be regarded as a part of the land for the purpose of being partitioned. Bohn v. Harris, 130 Ill. 525, 22 N. E. 587. A license to establish a ferry is the grant of an incorporeal hereditament subject to be revoked if a sufficient bond is not executed within ten days after such requisition is made. It is an interest which may be sold, and will descend to the heir as an incident of the fee. "At common law, a ferry was an incorporeal hereditament, and was consequently capable of alienation, and would pass to the heir by descent. In this State, the whole matter has been regulated by statute; so that we must therefore look thereto to ascertain what rights appertain to the grantee of a ferry." Lewis v. Intendant and Town Council of Gainesville, 7 Ala. 85, 87, per Ormond, J. "There can be no doubt, at this day, that the right to enjoy a ferry franchise is property, the full use of which the court will protect by appropriate remedies, one of which is injunction, where a direct pecuniary loss ensues to plaintiff by the unauthorized and continuous operation of a rival ferry. Cauble v. Craig, 94 Mo. App. 675, 69 S. W. 49. In the Charles River Bridge case the court, per Story, J., in dissenting opinion, said: "This franchise is property; is fixed, determinate property. * * *That franchise, so far as it reaches, is private property; and so far as it is injured, it is the taking away of private property." Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, 604, 618, 637, 638, 643, 645, 9 L. ed. 773. "A franchise for banking is in every State in the Union recognized as property." Gordon v. Appeal Tax Court, 3 How. (44 U. S.) 133, 150, 11 L. ed. 529, per Wayne, J. (a case of right to tax). See also Home Insurance Co. v. New York, 134 U. S. 594, 601, 33 L. ed. 1025, 10 Sup. Ct. of contracts." 37 So an estate in a franchise vests upon the same principle as estates in land, being equally a grant of a right or privilege for a valuable consideration.38 § 27. Same Subject Continued. In some States the franchises and privileges of a corporation are declared to be personal property, and it is said in a Federal case that: "According to the law of most States this franchise or privilege of being a corporation is deemed personal property, and is subject to separate taxation." 39 § 28. Franchise of Members, Shareholders or Corporators as Property. Each individual member is said to be the owner of a franchise, and his privilege of membership is, therefore, subject to protection as valuable.40 And the corporators have a property in the franchise of a private civil corporation of which they cannot be deprived without due process of law.41 593, per Field, J., citing Monroe Sav. Bk. v. City of Rochester, 37 N. Y. 365, 369, 370. 37 Richmond, Fredericksburg & Potomac Rd. Co., 13 How. (54 U. S.) 71, 83, 14 L. ed. 55, per Grier, J. A franchise of a corporation is property and may be condemned for public use by virtue of the power of eminent domain, due compensation being made therefor. Porter v. Rockford, Rock Island & St. Louis Rd. Co., 76 Ill. 561, 575. 38 State v: Real Estate Bank, 5 Pike (5 Ark.), 595, 41 Am. Dec. 509. "All the elementary writers treat of franchises as real property, though incorporeal in their nature. Chancellor Kent, in his commentaries, says that an estate in a franchise and an estate in land rest upon the same principles." Randolph v. Larned, 27 N. J. Eq. 557, 561, per Green, J. York, 143 U. S. 305, 312, 36 L. ed. 164, 12 Sup. Ct. 403, per Field, J. (a case of taxation of corporate franchises). See also Home Insurance Co. v. New York, 134 U. S. 594, 601, 33 L. ed. 1025, 10 Sup. Ct. 593, per Field, J.; Bank of California v. San Francisco, 142 Cal. 276, 280, 75 Pac. 832; Monroe Sav. Bk. v. City of Rochester, 37 N. Y. 365, 367, per Fullerton J.; State v. Anderson, 90 Wis. 550, 561, 63 N. W. 746. 40 Medical & Surgical Soc. of Montgomery v. Weatherly, 75 Ala. 248, 253. 41 State ex rel. Waring v. Georgia Medical Soc., 38 Ga. 608, 626, 95 Am. Dec. 408. The court, per Brown, C. J., said: "When the voluntary society accepted the charter, it became a private, civil corporation, and the corporators then in being acquired a property in the franchise, and every person who has since be39 Horn Silver Mining Co. v. New come a corporator has acquired a |