carefully guarded, were all in harmony, 797; Chicago, M. & St. P. R. Co. v.
and consistent with the continued exist- Des Moines Union R. Co. 165 Iowa,
ence of their respective proprietary in- 35, 144 N. W. 54.
terests. These acts and circumstances
are to be interpreted in the light of the
following principle, namely: the equi-
table interest that each of the railway
companies, party to the contract of
January 2, 1882, acquired in the ter-
minal properties of the Des Moines
Company, was more than a right in
personam or chose in action,-it was a
right in rem; namely, an estate in prop-
erty, vested in this respect to the same
extent as though the legal title thereto
had been conveyed to such company.
Brown v. Fletcher, 235 U. S. 589, 59
L. ed. 374, 35 Sup. Ct. Rep. 154; Pom.
Eq. Jur. 4th ed. § 975.

Laches can never be asserted upon
an equivocal state of facts.
Speidel v. Henrici, 120 U. S. 377, 30
L. ed. 718, 7 Sup. Ct. Rep. 610.

The surplus earnings are apportionable to the proprietary companies under $ 4 of the supplemental agreement of May 10, 1889, as construed by the parties themselves.

A trustee is not permitted to assert in his own behalf any right or interest in trust properties resulting from the inadvertence of his beneficiaries.

Bigelow, Estoppel, 6th ed. p. 589. The consolidated company, a successor in interest to the properties acquired to be held and used in common, of which

Hubbell was also an officer and director and the controlling stockholder, was subject to the disabilities of a fiduciary; for cotenants occupy to each other the position of express trustees in respect of the property held in common.

Topliff v. Topliff, 122 U. S. 121, 131, 30 L. ed. 1110, 1114, 7 Sup. Ct. Rep. 1057.

The surplus earnings were determined to belong to the proprietary companies by the formal action of the directors of the Des Moines Company, including the Hubbells, and such adjustment is binding upon the Des Moines Company.

Central Trust Co. v. Wabash, St. L. & P. R. Co. 34 Fed. 254.

Messrs. James L. Parrish and Frederick W. Lehmann argued the cause and filed a brief for the Des Moines Union Railway Company et al.:

of all instruments is to ascertain the The great object in the construction intention of the parties.

Mauran v. Bullus, 16 Pet. 528, 10 L. ed. 1056; Calderon v. Atlas S. S. Co. 170 U. S. 280, 42 L. ed. 1036, 18 Sup. Rothwell v. Dewees, 2 Black, 613, 618, Ct. Rep. 588; Knickerbocker L. Ins. 17 L. ed. 309, 311; Bissell v. Foss, 114 Co. v. Trefz, 104 U. S. 203, 26 L. ed. U. S. 252, 259, 29 L. ed. 126, 128, 5 Sup. 710; United States v. Bethlehem Steel Ct. Rep. 851; Turner v. Sawyer, 150 U. Co. 205 U. S. 119, 51 L. ed. 736, 27 Sup. S. 578, 586, 37 L. ed. 1189, 1191, 14 Ct. Rep. 450; Lowber v. Bangs, 2 Wall. Sup. Ct. Rep. 192, 17 Mor. Min. Rep. 736, 17 L. ed. 768; Van Ness v. Wash683; Starkweather v. Jenner, 216 U. Sington, 4 Pet. 232, 7 L. ed. 842; Potomac 524, 528, 54 L. ed. 602, 604, 30 Sup. Ct. S. B. Co. v. Upper Potomac S. B. Co. Rep. 382, 17 Ann. Cas. 1167. 109 U. S. 681, 27 L. ed. 1073, 3 Sup. Ct. Rep. 445.

The five-eighths stock interest in the Des Moines Company having been acquired by the Hubbells from the consolidated company, of which they were dominating stockhholders and directors, in violation of their fiduciary obligations to the proprietary companies, the decree herein, in addition to the primary relief asked, quieting the equitable titles of the complainants in the trust properties, should also provide for a re scission of the stock transaction, and for a redemption of the shares by the complainants on equitable terms.

Rothwell v. Dewees, supra.

It is essential to the application of the doctrine of estoppel that a party asserting it must have been misled to his prejudice.

Brant v. Virginia Coal & I. Co. 93 U S. 326, 23 L. ed. 927; Bigelow, Estoppel 6th ed. p. 476; Herman, Estoppel, p.

Upon the organization of the Des Moines Union Railway Company those who by contract were entitled to shares of stock though no certificates evidencing such were actually stockholders, shares were issued. As between shareholders and the corporation, the issuance of certificates of stock is not necessary.

4 Thomp. Corp. 2d ed. §§ 3455, 3507; First Nat. Bank v. Gifford, 47 Iowa, 583; Morrow v. Gould, 145 Iowa, 4, 25 L.R.A. (N.S.) 384, 123 N. W. 743; Hawley v. Upton, 102 U. S. 316, 26 L. ed. 179; Pendery v. Carleton, 30 C. C. A. 510, 59 U. S. App. 288, 87 Fed. 41.

It is a presumption of law that proper and valid notice of a corporate meeting has been duly given to each stockholder, and the meeting itself regularly and lawfully called.

2 Cook, Corp. 6th ed. § 600; Chase v. Tuttle, 55 Conn. 455, 3 Am. St. Rep. 64, 12 Atl. 874; Hill v. Atlantic & N. C. R. Co. 143 N. C. 539, 9 L.R.A. (N.S.) 606, 55 S. E. 854; Porter v. Robinson, 30 Hun, 209; Pitts v. Temple, 2 Mass. 538; Benbow v. Cook, 115 N. C. 324, 44 Am. St. Rep. 454, 20 S. E. 453; Hardin v. Iowa R. & Constr. Co. 78 Iowa, 726, 6 L.R.A. 52, 43 N. W. 543; Moore v. First Ruthven Circuit M. E. Church, 117 Iowa, 33, 90 N. W. 492.

The presumption is that the minutes of a stockholders' meeting or of a meeting of a board of directors are correctly and properly entered of record; and while it is allowable to contradict the records of a corporation, or show that the records do not fully disclose all the proceedings, the rule is that the proof in such cases must be so convincing and satisfactory as to leave no doubt that the matter attempted to be interpolated into the record did actually occur.

2 Thomp. Corp. 2d ed. §§ 1845, 1846, 1850, 1851; Hawkshaw V. Supreme Lodge, K. H. 29 Fed. 770; 2 Cook, Corp. 6th ed. §§ 600, 605, 610; Re St. Lawrence S. B. Co. 44 N. J. L. 534; Dennis v. Joslin Mfg. Co. 19 R. I. 666, 36 Atl. 129; Durbrow v. Hackensack Meadows Co. 77 N. J. L. 89, 71 Atl. 59; Heintzelman v. Druids' Relief Asso. 38 Minn. 138, 36 N. W. 100; Sanborn v. School Dist. 12 Minn. 1, Gil. 1; McDaniels v. Flower Brook Mfg. Co. 22 Vt. 274; Lane v. Brainerd, 30 Conn. 565.

The adoption of the amendments and the resolutions was an act of the stockholders (an act of complainants' predecessors, as distinguished from an act of the defendant corporation). The articles of incorporation constituted a contract between the stockholders, the terms of which they had the right to change in the manner therein pointed out without the consent of the corporate entity.

1 Thomp. Corp. 2d ed. §§ 172, 312; Jones v. Missouri-Edison Electric Co. 75 C. C. A. 631, 144 Fed. 765; Heald v. Owen, 79 Iowa, 25, 44 N. W. 210; Traer v. Lucas Prospecting Co. 124 Iowa, 112, 99 N. W. 290.

It is a presumption of law that all stockholders assent to any change in the articles of incorporation.

Holmes v. Royal Loan Asso. 128 Mo. App. 329, 107 S. W. 1005; 2 Cook, Corp. 6th ed. § 503.

2 Cook, Corp. 6th ed. § 503; Rabe v. Dunlap, 51 N. J. Eq. 40, 25 Atl. 959; Synnott v. Cumberland Bldg. Loan Asso. 54 C. C. A. 553, 117 Fed. 379; Big Creek Gap Coal & I. Co. v. American Loan & T. Co. 62 C. C. A. 351, 127 Fed. 625; Thompson v. Lambert, 44 Iowa, 239; Foster v. Mansfield, C. & L. M. R. Co. 146 U. S. 88, 36 L. ed. 899, 13 Sup. Ct. Rep. 28.

The doctrine of estoppel always applies where one relying upon the acts and representations, either active or passive, of another, changes his position in respect to the subject-matter.

5 Enc. U. S. Sup. Ct. Rep. p. 939; Morgan v. Chicago & A. Co. 96 U. S. 716, 24 L. ed. 743; Kirk v. Hamilton, 102 U. S. 68, 26 L. ed. 79; Linton v. National L. Ins. Co. 44 C. C. A. 54, 104 Fed. 584; Given v. Times-Republican Printing Co. 52 C. C. A. 40, 114 Fed. 92; Wright v. Lieth, 146 Iowa, 290, 125 N. W. 220; Seberg v. Iowa Trust & Sav. Bank, 141 Iowa, 99, 119 N. W. 378; Anderson v. Buchanan, 139 Iowa, 676, 116 N. W. 694; Morgan v. Des Moines Union R. Co. 113 Iowa, 561, 85 N. W. 902.

Under ordinary circumstances a suit in equity will not be stayed for laches before, and will be stayed after, the time fixed by the analogous limitations at law.

Wyman v. Bowman, 62 C. C. A. 189, 127 Fed. 257; Williams v. Neely, 69 L.R.A. 232, 67 C. C. A. 171, 134 Fed. 1; Kansas City Southern R. Co. v. Stevenson, 135 Fed. 553; 5 Pom. Eq. Jur. § 23; Galliher v. Cadwell, 145 U. S. 368, 36 L. ed. 738, 12 Sup. Ct. Rep. 873.

The title and ownership of property are to be determined by the law in force in the state in which the property is located.

Kerr v. Moon, 9 Wheat. 565, 6 L. ed. 161; M'Cormick v. Sullivant, 10 Wheat. 192, 6 L. ed. 300.

The Statute of Limitations commences to run as to resulting trusts at the time of the creation of the trust.

Boone v. Chiles, 10 Pet. 177, 222, 9 L. ed. 388, 404; Speidel v. Henrici, 120 U. S. 377, 386, 30 L. ed. 718, 719, 7 Sup. Ct. Rep. 610.

Suits to establish implied trusts fall within the class of cases in which Federal equity courts will follow the courts of law in applying the Statute of Limitations.

Beaubien v. Beaubien, 23 How. 190, A dissenting stockholder must act 207, 16 L. ed. 484, 487; Speidel v. Hen

promptly.

rici, supra; Riddle v. Whitehill, 135 U.

S. 621, 34 L. ed. 283, 10 Sup. Ct. Rep., an eighth, the other complainant a quar924; Abraham v. Ordway, 158 U. S. ter, [200] while the Messrs. Hubbell 416, 420, 39 L. ed. 1036, 1038, 15 Sup. Ct. Rep. 894; Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 685, 696, 42 L. ed. 626, 630, 18 Sup. Ct. Rep. 223; Baker v. Cummings, 169 U. S. 189, 206, 42 L. ed. 711, 718, 18 Sup. Ct. Rep. 367.

hold five eighths. Complainants assert that the terminal company holds its property in trust for their use, and that they are the sole beneficial owners, having an equitable tenancy in common, and being entitled to the joint use of the property in perpetu

The organization of terminal companies and terminal systems is a nat-ity, exclusive, except as other railural and logical development in centers of population, and is recognized as good public policy by the courts.

Morgan v. Des Moines Union R. Co. 113 Iowa, 561, 85 N. W. 902; United States v. Terminal R. Asso. 224 U. S. 401, 56 L. ed. 816, 32 Sup. Ct. Rep. 507; State ex rel. Atty. Gen. v. Terminal R. Asso. 182 Mo. 284, 81 S. W. 395; People ex rel. Bernard v. Cheesman, 7 Colo. 376, 3 Pac. 716; State ex rel. Little v. Martin, 51 Kan. 462, 33 Pac. 9; Worcester v. Norwich & W. R. Co. 109 Mass. 103; Fort-Street Union Depot Co. v. Morton, 83 Mich. 265, 47 N. W. 228.

But, assuming that the original transaction was ultra vires as against public policy, the transaction was a completed one nearly twenty years prior to the commencement of this suit, and the courts will not now disturb it.

St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co. 145 U. S. 393, 36 L. ed. 748, 12 Sup. Ct. Rep. 953.

Mr. Justice Pitney delivered the opinion of the court:

roads may be admitted to participate in such use with their consent. This is the principal matter in controversy. Intimately connected with it is the question of the validity as against complainants of the Messrs. Hubbell's claim to ownership of five eighths of the capital stock. A subordinate issue relates to the disposition of what are called "surplus earnings," acquired by the terminal company from outside parties during the operation of the terminal under an agreement made in the year 1889 between the terminal company and the predecessors of complainants, and which expired in 1918.

Complainants base their principal contention upon a trust alleged to have been established under and pursuant to an agreement made January 2, 1882, between three companies then engaged in the construction of as many railroads converging at Des Moines, and through the incorporation of the terminal company in the year 1884 for the express purpose of acting as trustee for the three companies, and the conveyance to it by them of the terminal property, followed by the working agreement of 1889; from all of which it is contended that the terminal company has from the beginning held and still holds all its property subject to a trust under which the three railroad companies and their successors and assigns, and such other railroad companies having lines terminating at Des Moines as may be admitted with their consent, are entitled to have the terminal property maintained and operated for their use and benefit at the actual cost of the terminal service performed. Complainant Chicago, Milwaukee, & St. Paul Railway Company is the remote [201] successor of two of the three companies, owning what may be called the Northern and the Northwestern lines. Complainant Wabash Complainants own and operate lines of Railway Company is the remote sucrailroad extending to the city of Des cessor of the original company that Moines, Iowa, and connecting there with owned the third, which may be called a joint terminal property, legal title to the St. Louis line. The bill of comwhich is held by the defendant Des plaint prayed for a decree declaring Moines Union Railway Company (herein- and establishing the trust; an accounting after called, for convenience, the terminal for all income and profits received by company), in which complainants hold a the terminal company for switching minority of stock, the Wabash Company or handling traffic at the terminal for

This was a suit in equity brought in the year 1907 in the circuit (now district) court of the United States for the south ern district of Iowa by the Chicago, Milwaukee, & St. Paul Railway Company and the Wabash Railroad Company against the Des Moines Union Railway Company. By an amended bill the individual defendants, Frederick M. Hubbell, Frederick C. Hubbell, and their firm of F. M. Hubbell & Son, were brought in; and afterwards the Wabash Railway Company, having succeeded to the rights of the Wabash Railroad Company, was substituted as a complainant in its stead. Jurisdiction depended entirely upon diverse citizenship of the parties.

cital of it would be unduly tedious. It is sufficiently referred to in the prevailing and dissenting opinions delivered in the circuit court of appeals, and we will content ourselves with touching upon the salient points. The case involves no abstruse legal or equitable doctrine; the application of familiar principles to the facts as they are developed will direct us to the proper outcome.

companies other than complainants and their predecessors, and for rentals of real estate and the like; and specifically and generally for other appropriate relief. The defenses set up in the answer and attempted to be supported by the proofs are, briefly, that by the deeds of conveyance made to the terminal company it took title not as trustee, but absolutely and for its own sole use and benefit; that whatever relation may have The agreement of January 2, 1882, arisen from the provisions of the origi- was made between the three railroad comnal articles of incorporation, whether panies and two individuals in whose fiduciary or merely contractual, was sub- names certain titles had been taken for stantially modified, and, if fiduciary, the benefit of the companies. Its princiterminated, by amendments adopted pal provisions were that terminal faciliApril 8, 1890, alleged to have been thereafter recognized by complainants and their predecessors as valid, and so treated by defendants and all others concerned; that complainants by their conduct and that of their predecessors are estopped from setting up the equitable title alleged, and have been guilty of laches barring relief in equity; hence, that they are not entitled to assert any right or interest in the terminal property except such as arises from their ownership of a portion of the stock of the terminal company and from the provisions of the agreement of 1889; and that by the proper construction of that agreement the so-called surplus earnings are the property of the terminal company, and not of complainants.

Upon final hearing the district court made a decree from which both sides appealed to the circuit court of appeals, where it was held (one judge dissenting) that [202] the terminal company had complete and absolute title to the terminal property; that complainants, except as holders of its stock or bonds, had no interest in it, nor voice in the control or management; that by the true construction of the 1889 agreement complainants were entitled to the surplus earnings until May 1, 1918, and that thereafter the rights of the parties respecting the use of the terminal were only such as sprang from their nature as carriers and their physical and business relations to each other and to the terminal; by reason of which the terminal company must furnish them with reasonable terminal facilities at reasonable charges to be agreed upon, or, in default of agreement, to be fixed by the proper public tribunal. 166 C. C. A. 289, 254 Fed. 927.

Cross writs of certiorari bring the resulting decree here for review.

The facts are intricate, and the evidence so voluminous that any detailed re

ties in Des Moines should be purchased,
constructed, and maintained at the joint
expense of the three companies, and held
and used in common; that the expense
of acquisition should be borne one half
by the St. Louis Company, one quarter by
each of the others; "that a depot company
may be organized and may take perma-
nent charge of the property upon the
terms herein set forth, and [203]
that said company may issue and de-
liver to the companies, parties here-
to, its mortgage bonds to the amount
of their respective portions of the
cost of the said purchases and im-
provements.
The title to said
property shall be and remain in a trustee
to be named by agreement of said com-
panies, but subject to the joint use and
occupation of all of said railway com-
panies upon the terms herein described."
The St. Louis Company was to be charged
with police control, supervision, and
maintenance of the terminal, and the ex-
pense thereof (including taxes) appor-
tioned between it and the other companies
according to the use they should re-
spectively make as evidenced by the
wheelage; spur tracks were to be built
connecting the terminal with factories and
other sources of trade in and about the
city, but if either of the companies should
deem the construction of any such track
not advantageous, the question of con-
structing it and which of the three com-
panies should pay for it was to be de-
termined by arbitration; any railroad
company having a line not extending to
Des Moines, but having effected an ar-
rangement for running its trains into the
city over the line of either of the three
companies, was to be entitled to the use
of the terminal facilities upon paying a
fair sum for rental and a proportion of
the maintenance account, the rental to in-
ure to the three companies in the same
proportion as the original outlay, and
the sum due for maintenance to be de-

termined in the same manner as in the, which formal resolutions were [205] ease of the three companies; railroad adopted reciting the contract of Jancompanies having lines extending into uary 2, 1882, and the organization Des Moines might be admitted to the use of the terminal by agreement of all three companies; differences arising under the agreement were to be referred to arbi