#### CASPER CLOW, Respondent, *v.*JOHN J. VAN LOAN, Appellant.

*Chap.*347, *Laws of 1855—penalties for running a toll gate*— *in whose name action to he*brought— *Conveyance of corporate property and franchises by*company— *validity*of— *Title to land*— *when brought in question.*

In pursuance of chapter 347, Laws of 1855, the eastern branch of the Schoharie Turnpike Company conveyed all its corporate property and franchises to one Nichols, who entered into possession of the road and collected tolls until 1867, *185when he conveyed all his right, title and interest therein to the plaintiff. *Held*(1), that the act of 1855 was constitutional and valid; (3), that the plaintiff was entitled to maintain an action in his own name, against the defendant for running a toll gate on the said road.

Where, in an action, a deed is put in evidence for a collateral purpose, it does not bring in question the title to land.

Appeal from a judgment in favor of plaintiff, entered in the Greene County Court.

The action was brought in a Justice’s Court, to recover penalties for running a toll gate on a turnpike. The plaintiff claimed the right to bring suit through a conveyance by the turnpike company of its corporate property and franchises. The answer was a general denial; payment; that the action was not properly brought in the name of plaintiff; that defendant was exempt from paying toll; that plaintiff was not entitled to maintain the action, and that no cause of action existed. A judgment was rendered in favor of the plaintiff for $34.35, and was affirmed upon appeal to the County Court.

*James B. Olney,*for the appellant.

*John*Sanderson, for the respondent.

Boardman, J.:

The act of 1855 * was valid and constitutional; the legislature had the power to create the turnpike company. By the same power it could authorize such company to sell or transfer its corporate rights and franchises. The various acts of the legislature in evidence, show the existence of a legal company. Under the act of 1855, such company, by a deed, good upon its face, conveyed to Nichols the turnpike and all the company’s rights, franchises, etc., under its charter. This was in 1855. From that time until 1867, Nichols remained in the possession and use of said turnpike, collecting tolls thereon. I can see no rational principle upon which a doubt can be raised, either as to the power of the legislature to authorize such a sale to an individual, or the right of an individual to take and enjoy under such a sale. If it be conceded that the deed was informal, or that the requisite number of stock*186holders did not consent, it will not benefit the defendant. A sale was made, possession was given, and Nichols used and enjoyed the property sold, under a color of title, claiming to own, for over ten years. The defendant is not in a. position to attack such an ownership, or do violence to such a possession and user. If anybody could do so, it would be the stockholders of the company; but their laches and neglect would estop them.

If Nichols acquired any title to the turnpike property and franchises, he could convey them to the plaintiff just as the individual owner of a ferry franchise can sell it to another. Eights of this character may be obtained by prescription, and become property in the owners. * Whatever property a man possesses, he may sell and convey, unless by his tenure it is forbidden, †

It results from these considerations, if just, that Nichols acquired the right from the turnpike company, to demand, sue for, and receive tolls, and that he had a right to sell and convey to plaintiff such turnpike, and all the rights, privileges and franchises incident to its-ownership. When the company parted with the property, it had no longer any right to receive tolls or bring actions therefor. Such actions must be brought in the name of the real party in interest, ‡ Nor is it of the slightest consequence in this case, whether the turnpike company has been dissolved or still exists. It is sufficient if it appears to have divested itself of all interest in this action. So far as a forfeiture is urged, it is sufficient to say that the franchise must be forfeited by judicial proceedings, before an individual can avail himself of its misuser or omissions. § It is further urged by the appellant, that the justice erred in not dismissing this action, because the title to land came in question. This claim is not sustained by the evidence. Plaintiff produced his deed, under which he claimed possession, and to connect himself with the charter whereby the right to tolls is given. The defendant did not dispute plaintiff’s title by proof. When a deed is put in evidence for a collateral purpose, it does not bring in question the title to land.

*187All that the plaintiff was required to do was to establish Ms possession of the turnpike, and the right derived from the company to collect tolls. The controversy was not over title to lands,-for it stands conceded that this turnpike had been occupied and used for such purpose for more than twenty years, and that for all that time tolls had been collected upon it. No one pretends it was not a turnpike upon which tolls were and had long been collected. But it is denied that plaintiff has shown himself in a position to sue for and collect penalties for non-payment of tolls. Showing himself in possession of the turnpike, is presumptive evidence of ownership for the purposes of this action. The deed or transfer of the company’s rights is then given in evidence to show, not a title to the highway, but a right to pursue such remedies as by statute were given to the company for interference with his possession and presumptive title.

If the foregoing reasoning is correct, the judgment of the Greene County Court should be affirmed, with costs.

*

 Chap. 347.

*

 Wiswall v. Wandell, 3 Barb. Ch., 315.

†

 Adams v. Beach, 6 Hill, 271.

‡

**Code, § 111.

§

 Thompson v. N. Y. and Har. R. R. Co., 3 Sandf. Ch., 625; Adams v. Beach, 6 Hill, 271.

James, J.:

I fully concur. The title to *land*did not come in question.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed.