In this case the evidence as to the fact of location by the plaintiff in error of its line of railroad was conflicting ; and even if, in view of all of its charter powers, the right given to construct a line of railroad from Moultrie to Thomas-ville was such as was contemplated by the statute which sought to protect one line from the encroachments of another, the judge could, in his discretion, in view of such conflict in the evidence, have legally granted the injunction. Some of the evidence directly negatived the fact that the Georgia Northern Railway Company had selected and marked out a line for its railroad. If this evidence was true (and the judge had a right to believe it), it was in his discretion to grant the injunction. There is another reason, however, why it appears to us that the injunction was properly granted. The Georgia Southern & Florida Railroad Company was, by an act of the General Assembly of this State, fully empowered to construct a branch of its railroad from Tifton to Thomasville; and the fact is not questioned that, in pursuance of such charter power, it located a right of way between these two points and did a considerable amount of work in its preparation to receive the line of railroad. It is contended, however, that the act of the legislature which incorporated that company contained a stipulation that the corporation should forfeit its rights and franchises unless the line of railroad was completed within a given time; and by reference to the acts of the General Assembly we find these conditions incorporated in the charter. It further appears that that railroad company did not complete its road within the given time, and that its property and assets were placed in the hands of a receiver, and a sale of all the property of the corporation, including the railroad line, was had under order of the court, and that the purchasers organized a new company and took possession of such property. Under our statute such purchasers succeeded to the rights and franchises possessed by the original corporation, and, having organized under the general railroad laws of this State, they succeeded to the ownership of the right of way procured and laid off between Tifton and Thomasville. The defendant in error procured such right of way and the property thereon by purchase from the *766Georgia Southern and Florida Railway Company, who were the purchasers of the property and franchises of the Georgia ;Southern and Florida Railroad Company. And even if it be true that the defendant in error had not acquired this right of way before the plaintiff in error located its line, we can not .see how that fact operates to the benefit of the Georgia Northern Railway Company. It can do so only on the theory that the Georgia Southern and Florida Railroad Company had forfeited its franchises and this right of way. It is true that it was a condition of its charter»that it should so forfeit, but a forfeiture for a misuser or nonuser of corporate franchises can be declared only by the judgment of a court of competent juTisdiction, on a proceeding instituted for that purpose, and the forfeiture dates from the time of such declaration. Civil Code, §1883. Neither can the plaintiff in error avail itself of the claim that such right of way and the franchise to construct a railroad upon it had been forfeited, as it seeks to do in this case; because neither misuser nor nonuser can be set up collaterally as a defense to the action. City of Atlanta v. Gate City Co., 71 Ga. 106, and authorities there cited. So that, if there had been no legal forfeiture of the franchises given to the Georgia Southern and Florida Railroad Company to construct the road, and if it be true that the purchasers of the property of that corporation acquired the franchises possessed by that company, together with its property, then it will follow that there was a selected and laid out line of railroad between the two points, and that it was so located before the plaintiff in error acquired any rights to its alleged located line. So that, irrespective of when the Tifton, Thomasville and Gulf Railway Company acquired this prospective line, a right of way had already been located, towards which the plaintiff in error must be held to legally observe the restrictions laid down in section 2176 of the Civil Code. In any event, therefore, there was no error in granting the injunction.

Judgment on main bill of exceptions affirmed. Cross-bill dismissed.