Mcginty v. Athol Reservoir Co.
| Decision Date | 06 January 1892 |
| Parties | MCGINTY v. ATHOL RESERVOIR CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Norcross, Hartwell & Baker, for plaintiff.
W.S.B Hopkins, for defendant.
It appears that the plaintiff brought his action originally against certain individuals, who pleaded in abatement that if they were connected in any way with the acts mentioned in the plaintiff's declaration, it was by reason of their being members of the Athol Reservoir Company, a corporation which employed the plaintiff, and built the dam where he was injured, and that it, and not they, should be held to answer to him. The plaintiff thereupon amended his writ by striking out their names, and substituting the name of the Athol Reservoir Company, describing it as a corporation. The reservoir company now claims, as one of the two grounds on which it relies, that it is not a corporation notwithstanding some of its members, who might fairly be presumed to know, have pleaded that it is.
1. By section 1, c. 41, Acts 1854, "Lyman W. Hapgood, Theodore Jones, Abraham Oaks, their associates and successors, were made a corporation by the name of the 'Athol Reservoir Company,' for the purpose of constructing, supporting, and occupying a reservoir of water by means of dams in the towns of Athol and Phillipston, in the county of Worcester, for the supply of mills on the stream below said reservoir, with all the powers and privileges, and subject to all the duties, restrictions, and liabilities, set forth in the thirty-eighth and forty-fourth chapters of the Revised Statutes." By section 2 of said act it was provided that "the whole amount of the capital stock of said company shall not exceed ten thousand dollars;" and by section 3, that "no shares in the capital stock of said corporation shall be issued for a less sum or amount, to be actually paid in in cash, than the par value of the shares which shall be first issued." At least one of the persons named in the act of incorporation, without objections, so far as appears from the others, with seven persons not named in the act, duly met on June 21, 1854, and accepted the act of incorporation, adopted by-laws, chose officers, and transacted other business. It is clear that the persons who took part in these proceedings became a corporation under the name of the "Athol Reservoir Company," Glass Co. v. Dewey, 16 Mass. 94; Hawes v. Petroleum Co., 101 Mass. 393; Walworth v. Brackett, 98 Mass. 98; Minor v. Bank, 1 Pet. 46; Frost v. Coal Co., 24 How. 278.
It is true that none of the capital stock has been issued. Something in the nature of capital or joint stock has been paid in, and has been expended by the company in the construction of its dams; but neither the paying in of it nor the using of it was a condition precedent to the existence of the corporation. Cases supra. Nothing in the act of incorporation, or in chapters 38 or 44 of the Revised Statutes referred to in it, required either to be done as precedent to the formation of the corporation. As soon, therefore, as the act of incorporation was accepted and an organization effected, the grant from the state took effect, and the corporation began to exist. It is claimed, however, that all the persons named in the act of incorporation, and who took part in the organization, are dead; that, no stock having been issued, there was no provision for a succession of members; and that, therefore, the corporation has been dissolved by operation of law. Undoubtedly a corporation may be dissolved by the death of all its members, or by the loss of an integral part of its organization, so that the exercise of its corporate functions cannot be restored, (Penobscot Boom Corp. v. Lamson, 16 Me. 231;) but it appears that the company has met annually since its organization, and elected officers, and has from time to time, as occasion required, held special meetings; that it built and has maintained the dam which it was chartered especially to build, and has built two others, and had voted to build and was constructing the dam on which the plaintiff was injured; that it has taken in the corporate name a deed of the land on which the dam authorized by the act was built, and also deeds of certain rights of flowage; and that it has transacted other business that was incident to and grew out of the purpose for which it was chartered.
There can be no reasonable doubt that the persons interested have believed that they were acting, and have intended to act, as a corporation, and they should be held to be one, unless there are insuperable difficulties in the way. We do not think there are. The corporation was established for the purpose of constructing and supporting a reservoir to supply the mills on the stream below it. Before the act of incorporation was passed, a number of mill-owners on the stream had associated themselves together by an agreement bearing date April 26, 1853, for the purpose of constructing and maintaining a reservoir across it. The agreement provided, among other things, "that those who may hereafter have their [the parties'] respective estates in the mills, mill-dams, and mill privileges shall succeed to their rights and be subject to their duties, respectively, in the reservoir," (clause 2;) that the business of the association should be under the control of the association, and the proprietors of each of the several mill-dams,...
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