On Petition for Rehearing.
Eobt, C. J.The argument in support of this petition is based principally upon the assertions that §5153 Burns 1901, §3903 E. S. 1881, does not give the railroad company the right to cross a stream such as the one shown in the case at bar, “because the right exists independent of the statute, and it was in no way enlarged by it;” that “the statute relied on, * * * in so far as it refers to watercourses, gives no rights except as to navigable streams;” that the effect of the obstruction complained of is to create a private and not a public nuisance.
By sections one, two and three of an act in force May 6, 1853 (1 E. S. 1852, p. 409, §§5134-5136 Burns 1901, §§3885-3887 E. S. 1881), provision is made for the formation of a corporation for the purpose of constructing, owning, and maintaining a railroad. Section thirteen of said act (§5153 Burns 1901, §3903 E. S. 1881), confers upon such corporation certain powers which are thereunder expressly made subject to the liabilities and restrictions expressed. .These powers as enumerated in the various subdivisions may be epitomized as follows: (1) To make necessary examination and survey for the proposed road; to enter upon the lands or waters of any person, “but subject to responsibility for all damage which they shall do thereto.” (2) To take voluntary grants and donations. Eeal estate thus received to “be held and used” for the purpose of such grants only. (3) To purchase and hold lands and other property necessary to accomplish the ob*300jects for which it is created, “but not until the compensation * * * shall have been paid * * * or deposited.” (4) To lay out its road and take lands necessary for its proper construction. (5) “To construct its road upon or across any stream of water, watercourse, road, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property ; but the corporation shall restore the stream or watercourse, road or highway, thus intersected to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises.” (6) To cross other railroads. (7) To purchase lands in order that it may change the line of its road. (8) To transport persons and property by steam or other mechanical power, and receive compensation therefor. ' (9) To erect and maintain necessary buildings. (10) To regulate traffic over its line. Sections fourteen, fifteen, sixteen, seventeen, and eighteen of said act relate to the acquirement of lands by appropriation.
7. The appellee railroad company exists by virtue of this legislation. Availing itself of the power conferred upon it by the act which makes its existence possible, it now proposes to evade the limitations placed upon the exercise of such powers by the same statute. It calmly assumes the dignified position of a natural person possessing inherent rights independent of legislation, ignoring what it in fact is, how it was made, and who made it. Nothing can be better settled than that a corporation being a mere creature of the law, possesses those powers only which are given to it by its charter, either expressly or impliedly, as necessary in strict furtherance of the object of its creation. Huntington v. National Sav. Bank (1877), 96 U. S. 388, 24 L. Ed. 777; Beaty v. Knowler (1830), 4 Pet. *152, 7 L. Ed. 813; Runyan v. Coster (1840), 14 Pet. *122, 10 L. Ed. 382.
*3018. The charter of a corporation is the measure of its powers, the enumeration of which implies the exclusion of all others. Green Bay, etc., R. Co. v. Union Steamboat Co. (1882), 107 U. S. 98, 27 L. Ed. 413, 2 Sup. Ct. 221; Fertilizing Co. v. Hyde Park (1878), 97 U. S. 659, 24 L. Ed. 1036; St. Clair, etc., Turnpike Co. v. Illinois (1877), 96 U. S. 63, 24 L. Ed. 651.
2. The terms of the statute referred to do not permit a railroad corporation to construct its road across any stream of water, watercourse, or canal without restoring the same in a sufficient manner not unnecessarily to impair its usefulness. The power to cross thus conferred, when taken, is taken subject to the limitation and not otherwise.
9. The second proposition argued is equally ineffective. If the provisions of' the fifth subdivision of §5153, supra, were intended to apply only to navigable streams, it is to be presumed that the legislature would have so stated. The words used are of the most comprehensive character, and do not admit of any other meaning being placed upon them than the clear and ordinary one which they in themselves convey. State v. Shelton (1906), 38 Ind. App. 80.
10. The distinction between public and private nuisances is entirely foreign to the decision. The restriction upon the appellee’s power to cross any stream of water or watercourse, contained in the fifth subdivision of the foregoing statute, is no different in principle from the restriction contained in the first subdivision, upon its power to make preliminary surveys, etc. The responsibility therein declared is by the act made a necessary incident to the exercise of the power granted. Whether the legislature could have empowered a corporation to act in either regard without limitation is not important, since it did not, in either case, attempt so to do.
*30211. The corporation constructing the railroad in question, without regard to the statutory liability of restriction, could not, by a conveyance to appellee, convey a greater right than it possessed, nor could it by such transaction relieve appellee from the performance of a statutory duty.
10. It is not, therefore, necessary to enter into a discussion of the distinctions between private and public nuisances, since an act in defiance of the statute is essentially unlawful, and not within the principle requiring notice to the purchasers of land upon which a private nuisance exists.
The petition for a rehearing is overruled.
Black, P. J., Comstock, Myers and Robinson, JJ., concur.