In support of this statement, Mr. Greenleaf cites the cases we have already noticed, and some others that require consideration. One of the most important of these is Blight v. Brent, 2 Y. & C. Exch. Rep. 268, 294. It involved the question whether the shares in the Chelsea Water-works Company were realty, or personalty. The act of incorporation left the question open, as it contained no declaration upon the subject. The court reviewed the cases bearing upon it, and came to the conclusion that the shares were personalty. [The cases of Bradley v. Holdsworth 3 M. & W. 422, and Duncuft v. Albrecht, 12 S. & S. 189, are next considered.]
A careful examination of the adjudications upon the subject has brought us to the conclusion that, according to the weight of authority, the shares in question are personal property. In the early English cases the distinction, now well understood, between the property of a corporation and the rights of its members, does not seem to have been taken, and it appears to have been assumed that each shareholder had an estate in the corporate property, and that, consequently, if that property was real, his share was also realty. But the cases we have cited abundantly show that the distinction above mentioned is now fully recognized in England, and that the property of a corporation may be mainly, if not wholly, real, and yet the shares of its members be personalty. This may, possibly, be an innovation upon the ancient principles of the common law, but it is not more so than has taken place in the case of ordinary partnerships. Thus, the old doctrine seems to have been that there could be no partnership, properly so called, in land, but the contrary doctrine is now universally held; and that a widow of a deceased partner is not dowable in lands which the firm owned and regarded as partnership stock, is settled by numerous decisions, among which are the cases in I Ohio Rep. 535, and 8 Ohio Rep. 328. As to the Connecticut case, Welles v. Cowles, there is, possibly, no necessary conflict between it and the view we take of the present case. There the right to tolls may be said to have arisen wholly out of realty, the turnpike road; but in the case at bar, the profits of the company accrue from real and personal property, and personal services. The turnpike company did not carry either goods or persons. It furnished no vehicles for the transportation of either, and had no care of, or responsibility for, either. It merely allowed a transit over its road upon the payment of a toll. But a railway company is a common carrier. It furnishes not simply a road, but also the conveyances that pass over it; it undertakes the transportation of passengers and freight, and incurs the responsibility of a common carrier as to both.
It was, therefore, justly said by Parke, B., in the quotation before given, that the interest of each individual shareholder is a share of the net produce of both real and personal property (and he might have added, of personal services), when brought into one fund. But we would not be understood as approving the decision in Welles v. Cowles, for we are of opinion the shares in an incorporated turnpike company as well as in a railway corporation, are personal property. The same distinction we have drawn between a turnpike and railroad company may be drawn between the latter and the Avon navigation case, and the cases of tolls upon fairs and markets, and rents issuing out of realty. And this distinction seems to be taken by Greenleaf in the quotation hereinbefore made. As to the case in 4 Watts, it is enough to say that it does not appear that the bridge builders were a corporation, or that they intended to convert the bridge and right of taking tolls into a stock. The decision in 6 Dana, 107, is certainly directly opposed to our views. The court, in that case, seems to have wholly overlooked the distinction between the right of the company and the right of the shareholder, and to have concluded that if the company's franchise of taking toll was an incorporeal hereditament, springing even in part from the realty, the shareholder's interest could not be personalty. Indeed, the court call the shareholder's right a franchise. Now, I imagine that it is the artificial being, the corporation, and not the individual shareholder, that has the franchise, and possibly it is not immaterial whether the toll arises wholly out of realty, or partly out of realty and partly out of personalty. 'An annuity," says the court, "though only chargeable upon the person of the grantor, is an incorporeal hereditament, and though the owner's security is merely personal, yet he may have a real estate in it," citing 2 Bla. Comm. 40. True, such an annuity is realty so far as descent is concerned, or, more properly speaking, though personal in itself, it descends as if it were realty, the reason of which is that it is limited by the grant to the heir, otherwise, it would not be a hereditament. The authorities, cited by the defendant, show conclusively that it is only as regards descent that it is considered as realty. But unless there is some provision in the charter of the Lexington and Ohio R. R. Co., limiting the stock to the heirs of the stockholder, the illustration put by the court is not in point.
It must be admitted, however, that the definition of Lord Coke, cited with approbation in Buckeridge v. Ingram, sustains the position that the franchise was a tenement savoring of the realty; for, in the language of Coke, it was "exercisable within lands." And, as before stated, we prefer to place our decision upon the distinction between the estate of the corporation and the individual rights of its members, rather than upon a distinction between the cases in which the profit arises wholly out of realty, and those in which it springs partly from realty and partly from personalty, though this latter distinction seems to receive much support from both reason and authority. [ The court next shows that the general policy of the Legislature is in favor of the view which holds such shares personal].