Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.

The plaintiff claimed to be a corporation formed under the “Act to authorize the formation of corporations for the construction of plank or turnpike roads,” approved May 12th, 1858.

Twelve persons, on the 19th day of March, 1869, signed the notice to organize a company under said Act, to construct a road in the County of San Joaquin, from the junction of the road known as the Mokelumne Hill Eoad with East street, on the environs of the City of Stockton, to the Village of Linden, a distance of twelve miles. The notice designated the thirty-first day of March following, as the day of effecting a preliminary organization, and it was published as required by law. On the last named day the preliminary organization was effected, by the subscribers to the notice electing a President, Secretary, and Treasurer, and designating the “Stockton and Linden Turnpike Eoad Company” as the corporate name, and a certificate to that effect was filed with the Eecorder. A code of by-laws was also adopted, May 6th, 1868, by the Board of "Directors, and filed with the Eecorder. A map and plan of the road was filed, June 8th, 1868, with the Eecorder. It did not appear that any books were opened for subscription to stock, or that a final organization had been effected by a meeting of the stockholders called by the President and Secretary for the purpose of electing a Board of Directors and filling the offices as required, by the seventh section of the Act. Section ten of the Act provides that unless the preliminary organization be made within one month after the publication of the notice of declaration of intention, and that unless the whole amount of capital stock designated shall be subscribed and the final organization be made within six months after the preliminary organization, or an amount equal to ten per cent-or more of the capital stock be paid in and the survey filed within one month after the final organization, the company shall be deemed to have abandoned its intention, and shall be dissolved by operation of law.

In 1868 (Laws 1868, p. 159) an Act was passed allowing the Supervisors of San Joaquin County to grant any portion of a public or county road to any corporation which might be desirous of turnpiking any part thereof.

On the 29th day of August, 1868, the Board of Supervisors granted to the plaintiff, under said Act, the right to enter upon “so much of a public highway called the Moke lumne Hill road as lies and is between the intersection of the road of the Stockton and Linden Turnpike Road Company with East street, and running along East street, in a southerly direction, to Weber Avenue; thence along Weber Avenue to Aurora street, on the eastern boundary of the City of Stockton.” The road covered by said grant was not a part of the plantiff’s turnpike, and the Board, on the twenty-first day of November thereafter, fixed the rates of toll to be charged thereon. The plaintiff soon after turn-piked the road thus granted, and erected a toll-gate thereon. The defendant (the railroad company) entered afterwards upon that part of plaintiff's road lying along Weber Avenue and betwen Aurora and East streets, and built and operated a railroad thereon.

This action was brought to recover possession of that portion of the road thus appropriated by the railroad company, and for damages. The other defendants were the officers of the railroad company. The plaintiff was non-suited by the Court below, and brought this appeal.