conferred upon a company by its charter, either in express terms or by necessary implication, they cannot be constructed. Railroad Co. v. Railroad Co., 31 N. J. Law 205; note to M'Abey v. Railroad Co., 20 Am. & Eng. R. R. Cases 319; note to Lamer v. Railroad Co., 10 Id. 21. Conceding that defendant cannot construct a branch line, there is still a line of decisions holding that one who has contracted with a corporation cannot deny the existence of the corporation or deny its power to do what the parties have mutually agreed to do. Thus a person who has borrowed money from a bank and failed to pay cannot make the defense when sued for it that the bank had no right to loan the money. Mining Co. v. Bank, 96 U. S. 640. The reservation is void for uncertainty. The strip is excepted for right-of-way or other railroad purposes so that there is taken out of the grant a part of the thing granted; not merely an easement, but the fee. Munn v. Worrall, 53 N. Y. 44; Washburn on Real Property, Vol. 3, p. 368; Mayor, etc. v. Law, 26 N. E. Rep. 471. An exception in a deed is to be taken most favorable to the grantee and if not described with certainty the grantee shall have the benefit of the defect. Jackson v. Hudson, 3 Johns. 375; Thompson v. Gregory, 4 Johns. 81; Jackson v. Gardner, 8 Johns. 394. After third parties have acquired rights the original parties cannot correct an erroneous description to their prejudice without their consent. Sneed v. Woodward, 30 Cal. 430; 2nd Wait's Actions and Defenses 504; Hall v. Pickering, 40 Maine 548; Rorer on Railroads, 318; Van Wyck v. Wright, 18 Wend. 157. Defendant is a mere lessee, liable to be ejected for non-payment of rent or breach of other conditions. Railroad Co. v. Day, 30 Am. & Eng. R. R. Cases, 333. Trespass or ejectment will lie. Note to Railroad Co. v. Karnes, 10 Am. and Eng. R. R. Cases, 43; note to Jones v. Railroad Co., 14 Id. 224; Rorer on Railroads, 305, 318.
John S. Watson and W. F. Ball for respondent:
Violations of a charter cannot be assailed collaterally in a suit by private parties. Cowell v. Colo. Springs Co., 100 U. S. 55; Natoma, etc., v. Clarkin, 14 Cal. 552; Finch v. Baldwin, 17 Johns.
