Opinion of the Court. formed under this act, shall be bodies corporate and politic, by the name stated in such certificate, may have power to make and enforce contracts in relation to the legitimate business of their corporation, society or association, and they and their successors, by their corporate name, shall, in law, be capable of taking, purchasing, holding and disposing of real and personal estate for purposes of their organization," etc. There is certainly given here the capacity to hold real estate. The titles to the club-house property and the marsh property are not in issue in this case. What is here in controversy is but the question of a right of way across intervening lands. Even if appellee has exceeded in extent its power of holding real estate, appellant, we conceive, can not take advantage of the fact. In Hayward v. Davidson, 41 Ind. 214, the rule is acknowledged to be, in such cases where a corporation is authorized by its charter or the law of its creation, in some cases, to take and hold the title to real estate, that "as the corporation may, for some purposes, acquire and hold the title to real estate, it can not be made a question by any party, except the State, whether the real estate has been acquired for the authorized uses or not," and quotes the language of Judge DILLON upon the subject, in his work on Municipal Corporations, sec. 444: "If there is capacity to purchase, the deed to the corporation. divests the estate of the grantor, and there is a completed sale; and whether the corporation in purchasing exceeds its power, is a question between it and the State, and does not concern the vendor." And in Baker v. Neff, 73 Ind. 68, where a party, having conveyed land to a supposed corporation by its corporate name, sought to set aside the conveyance, the court say: "The right of an association, assuming it to be a corporation under a law authorizing the creation of corporations of the class to which it claims to belong, and which has exercised powers as a corporation, to hold property, can not be questioned in an action brought by an individual citi Opinion of the Court. zen to set aside a contract which he had made with the association in its corporate name and character. The right of a corporation to hold property can only be questioned by a direct proceeding prosecuted in behalf of the State." (See Hough v. Cook County Land Co. 73 Ill. 23.) In Darst v. Gale, 83 Ill. 140, it was said: "The general rule is, that the plea of ultra vires shall not prevail when, instead of advancing justice, it would accomplish a wrong; and it makes no difference, in this respect, whether it is interposed for or against the corporation." The inequitable character of the claim which is here set up to defeat this lease because of the alleged incapacity of appellee to take it, is, under the facts of this case, apparent. This objection, that the power to acquire and hold lands is not conferred by the statute of 1872, is not well taken. And we think the same must be said with respect to such power not being conferred by the laws of the State of Indiana, and as to its supposed policy. Whatever such may be, would seem, under the authorities above cited, to be a matter which appellant can not avail himself of in this suit,-that that is not a thing of individual concern, but that it is to be left with that State alone to assert for herself any laws or policy of her own upon the subject, as she may, or not, see fit to do. before the lease was As to appellee's claim of right of way not being supported by the evidence, it is insisted that the lease in evidence, which is relied on in support of such claim, became avoided by the subsequent incorporation of the club. As the club had taken actual steps to become incorporated made, such a result as that contended for would be an extraordinary one. The club had passed a resolution to become incorporated on the 3d day of March, 1873, and the lease was executed on the next day, March 4th. It certainly could not have been the understanding of the club that their incorporation was to terminate the lease, nor of at least one of the lessors, Turrill, who was president of the club, and as Opinion of the Court. Such notion of the lease hav upon the words of the lease: such signed the record of the meeting at which the resolution for incorporation was passed. ing become determined rests "And whenever said club shall cease to exist as now organized, this lease and all the rights thereunder shall be determined and cease." The duration of the lease had before been fixed as "for and during the existence of said club," and the words quoted are, whenever said club shall "cease to exist," as now organized. It is the existence of the club which is made the measure of the life of the lease, and the words "as now organized," relate to the club's existence,-such a club as it then was, "as now organized, "—a club for its then purposes, and not a club of a different character. We think the words "as now organized," refer to purpose of organization, not mode of organization, to a shooting club, and not to the manner in which it should be organized,-whether as a voluntary association or body corporate. It makes no manner of difference. with any rights involved in this lease whether the club be a voluntary association or a corporation. It in no way affects the use of the right of way or the burden upon the land, and it can not be supposed that the mere manner of being organized as a voluntary association, or as an incorporated body, was at all in the contemplation of the parties to the lease. It may be remarked of the resolution of March 3, to become incorporated, it begins: "Resolved, that pursuant to the original design the members take immediate steps to incorporate," etc. Some point is made upon the meeting at which it was resolved to become incorporated being attended by but a small portion of the members of the club, and it not appearing that all of the members of the club went into the incorporation. We perceive nothing substantial in this. There is no pretense of the existence now of two separate bodies, or of any adverse claim of interest in any of the club property. All of the members of the former club are made members of the incorporated club. It has succeeded to all Opinion of the Court. of the old club,-its property and liabilities, constitution and by-laws. Its object is the same, and all the difference, as affecting anybody, is that its legal name is now the "Tolleston Club of Chicago," instead of the "Tolleston Club," and it has the privileges, as a corporation, which the statute gives to it. We can not adopt the literal reading, as insisted upon, of this language of the lease, and we do not find that the lease became determined upon the club's incorporation. It is contended the lease gives no right to use the plank walk laid along the bank of the canal. This foot-path was ever in constant use by the members of the club, in connection with the use of the canal, from the time the canal was dug. The mode appears to have been for the hunter to have some one to paddle or push the boat, with his accoutrements in it, up and down the canal, and he would walk along upon the bank. A year or two after the canal was dug, from the taking away of a dam upon the river, the water in the canal became lowered, and to such an extent as to cause a disuse of the canal, in a great measure, but it can not be said to have been abandoned. It rarely was used through its entire length or greater part, but a portion of it next the river could always be and was used for the boats. This disuse of the canal increased more and more the use of the footpath. Boats would land at various points along the bank, according as the depth of water admitted of the passage of boats, and the members of the club would walk the rest of the distance along the bank. The canal and this foot-path were the only practicable means of access from the river and marsh to the club-house back of them. Wherever there is the right of navigation there is the incidental right to use the banks of the stream, to a greater or less extent, as the purposes of navigation may require. The lease is, in terms, "all the ground in section 18 now used for said canal." We think this may not unreasonably be held as including all the ground then used, together with the canal, or in connection Opinion of the Court. with the canal. This foot-path, we may infer from the evidence, was as much used in connection with the use of the canal as the canal itself was used. It had ever been so used before, and was so used at the time of the making of the lease, and has been ever since, until in 1881, with certainly the knowledge and consent, and without objection, of the lessors. It is the rule that whenever a thing is granted, all and every easements necessary to its beneficial enjoyment will pass. (Angell on Watercourses, secs. 158, 358.) Although this footpath was not absolutely necessary for the use of this canal, as is the tow-path in the case of an ordinary canal where the mode of propelling boats is by animal power, still its use was an actual, constant incident of the canal's use,-such a convenience therein, and accessory, and so far necessary, that its use may, not improperly, we think, be regarded as appurtenant to the canal, and passing by the lease thereof. There are acts of the lessors which have a bearing in this particular. It is in evidence that in 1871 or 1872, when Mr. Turrill was the owner of one-third of the land as tenant in common, and also president of the club, with his concurrence and assistance, and for the purpose of defining the right of way as stated by him, there was built a fence, some twenty or twentyfive feet from the edge of the canal, for a distance of sixty or eighty rods, and a plank walk was laid down for this footpath, along the inside of the fence. About 1878 appellant wished to have the location of the plank walk changed, and upon seeing the president of the club on the subject, he directed the latter to confer with appellant's tenant as to the location of the walk, which the president did, and the walk was moved near to the canal,-as near as could be with safety, and placed to the satisfaction of the tenant, where it afterward remained without objection. These acts of the parties, and their acquiescence in the use of the walk, would seem to evince their understanding that the lease included |