(dissenting.) I understand my brethren- to hold that the sale of that part (branch) of the Hastings & Dakota road lying between Minneapolis and Benton Junction was authorized by 'the act of 1881. This appears to me to be the fact; but, as no part of the land grant appertained to this branch, it is not very important in this ■case, except as going to show that, the sale and consequent non-user of the branch being authorized by law, neither would furnish any ground for forfeiting any franchises of the Hastings & Dakota Company, or, at most, none except such as that sale would deprive the •company of power and right to use.
I dissent generally from the conclusions arrived at by my brethren as respects the rest of the Hastings & Dakota road, being that part of it which lies between Hastings and Ortonville. As to this, I think its non-user by the Hastings & Dakota Company in person, (if I may use that phrase,) and its maintenance and operation by the Chicago, Milwaukee & St. Paul Company, have been acquiesced in, assented *269to, and sanctioned by both the legislative and executive departments of the state government, from time to time, ever since the construction of its different portions, respectively, being from é to 15 years last past.
As to that part of the Minnesota Central road lying between Minneapolis and Austin, I understand my brethren to agree, as I do, that the sale to the McGregor Western was expressly authorized by various acts of the legislature; so that, as in the case of the Hastings & Dakota branch, I see no reason why such sale, or the consequent non-user by the Minnesota Central, should at most furnish any ground for forfeiting any franchise of the latter company except such as that sale would deprive it of power and right to use; and, as to this part of the Minnesota Central, there has been a like acquiescence, assent, and sanction as in the case of the Hastings & Dakota, and even more explicit as respects the sale, the non-user by the Central, and the maintenance and operation by the Chicago, Milwaukee & St. Paul, for nearly 20 years, and, as to the 10 or 12 miles lying between Austin and the state line, for more than 15 years.
In my judgment, this conduct on the part of the state waives any right which it might have had to demand a forfeiture of the entire franchises of these companies on account of the alleged sales and non-user of the roads. If the sales are inválid and abortive, so that the roads are still owned and held by the Hastings & Dakota and Minnesota Central Companies, respectively, it is not perceived why such sales, or the merely personal non-user of the roads by these companies, should call for such forfeiture, so long as the non-user has been acquiesced in, assented to, and sanctioned by the state. But, conceding that the sales are valid and operative, so that there is not only a non-user by the Hastings & Dakota and the Minnesota Central Companies of what may for brevity be called their railroad franchises, and that, as they have no further use for them, and nothing for which they can use them, they may as well be forfeited, I can conceive of no reason why, in view of the state’s acquiescence, assent, and sanction, before mentioned, these companies should be deprived of the franchise to hold and sell their lands, upon the terms, as to taxation and otherwise, upon which they were granted *270to them; or why, for this purpose, they should not be permitted to retain the franchise of corporate existence, leaving the state, on the other hand, to enjoy the right to the commutation of taxes now secured by constitutional amendment.
With respect to the statute relied on as requiring a forfeiture when a corporation has suspended its lawful business, I have only to say that it cannot have reference (so as to require an entire forfeiture) to a ease in which the suspension is partial, and sanctioned by the state.
For these reasons I dissent from the conclusion reached in the majority opinion. I content myself with briefly stating the general results which I have arrived at in the case, because a full and detailed statement of the facts and grounds upon which I stand, would render this (which is only a dissenting) opinion unjustifiably voluminous. A full presentation of the facts will be found in the pleadings, and in the briefs of counsel.