THE COMPANY FOR ERECTING AND SUPPORTING A TOLL BRIDGE
WITH LOCKS FROM
7
HOSMER, Ch. J. The first enquiry in the case regards the title of the
plaintiffs averred in their bill. As they were explicitly authorized, by their
charter of incorporation, to erect locks and to collect toll, it is only
necessary, in conducting this enquiry, to consider the objections made by the
defendants.
In the first place, they say, that the locks, by the original grant, were to be
executed within six years from the rising of the General Assembly, in May,
1799; and that the prolongation of this period afterwards, had relation to the bridge
only. This objection is manifestly without any foundation.
It is admitted, that the resolves alluded to, literally had reference to the
bridge only; but in their spirit and meaning, they [**27]
equally extended to the locks. From the act of October, 1798, it appears, that the erecting of a toll bridge was connected
with the erection of locks in subserviency to it, in
order to avoid injuring the navigation of the river. It was stated to
the General Assembly, that the otherwise pernicious effects of the bridge on
the navigation, would be effectually prevented, provided the two locks were
made; and hence the building of the locks was a material motive for the grant
of the bridge. The General Assembly never intended to hazard the great
interests of navigation, by permitting the erection of a bridge only. The locks
were designed to be coexistent with the bridge, in order to correct any ill
consequences resulting from this measure. Hence, when the period for building
the bridge was extended, the erection of the locks, as an indispensable
adjunct, was likewise extended.
The whole of the proceedings of the General Assembly exhibit
the most incontrovertible evidence of this truth. Upon the construction
of the defendants, the right to erect the locks expired in May, 1805;
and yet in 1808, we find the General Assembly authorizing the excavation of the
river in lieu of [**28] the locks. Of what locks,
it may be asked. Of those locks, the right to erect which, on the defendants'
construction, had expired three years before. Nor is this
all. In the same act, it is declared, by the General Assembly, that
"the said corporation are not, by this resolve, in any respect, excused
or restrained from making locks and canals as aforesaid, at any time during
the continuance of their said grant, and receiving the toll to them
granted for passing the same, if the present provision [by excavation] shall be
found insufficient for the navigation of said river." This is a clear
recognition of the right to [*44] erect
the locks, as existing at that time. But, if it did exist, it was only by force
of the resolve extending the time for building the bridge. At the same session
of the General Assembly, Oliver Mather and
others were appointed to inspect the bridge and the locks and canals,
or shore channel, thereto annexed, and to accept the same. This is another recognition of the plaintiffs' right to build and
enjoy the locks. We find the General Assembly afterwards, in October
of the same year, on the request of the plaintiffs, appointing Asher
[**29] Miller and others a committee to report what, in
their opinion, was the best mode of erecting the locks to subserve the public interest, without sacrificing the
rights and interests of the plaintiffs. If it is asked, what rights, the
answer is obvious; the rights of the plaintiffs to build the locks,
derived from the act of 1798; for they had no other. The committee reported the
erection of another lock, at a different place, and that instead of the locks
over Mad Tom and Surf bars, there should be one lock only on
the Eastern bank of the river. This report was, so far as relates to
the facts found by the committee, accepted; and it was resolved, that the
building of locks upon the falls, by the said company, be suspended,
and that the said company be discharged from the obligation to build the same until
the further order of the Assembly. Thus, in October, 1809, the
right of the plaintiffs to erect the locks, was again acknowledged, and the
building of them, for a time, was suspended; but neither their right,
nor the obligation, to build, was discharged. The argument of the defendants on
the resolve just cited, is founded on a departure from
[**30] the plain words used by the General Assembly. Had the
expression been, the right of the company is suspended, until the
further order of the General Assembly, the comment would have been just, if the
Assembly had authority to pass the resolution. But the words are, that the building--not
the right to build--be intermitted; and were obviously intended, in view of the
existing doubts as to the best mode of erecting the locks, to relieve from an
obligation, and not to terminate a right. The General Assembly had no
authority, innate or derived, to impair the rights of the plaintiffs; nor have
they attempted it. No order to build the locks has yet been issued; and the
rights of the plaintiffs remain, unless some other consideration may affect
them, precisely what they were in 1809. They have authority to build the locks,
originating by grant in 1798; preserved by repeated [*45] acts,
prolonging the period for erecting them; recognized, by the General Assembly,
over and over again, until the year 1809; and then the actual exercise of the
right by building, was permitted to be in suspense until further direction.
It was objected, in the next place, that the plaintiffs did not
[**31] give bond to erect and finish the bridge pursuant to the
charter; that this was a condition precedent; and that, by reason of this
omission, the plaintiffs have acquired no right, or at least, have forfeited
the right before acquired.
This objection has been argued for the defendants, by the application of an
inapplicable legal position, and by a recurrence to the most technical
principles of the common law. The condition, (if such it may be called,) was
not precedent to the plaintiffs' right. The charter constituted them a
corporation, and conferred on them a franchise. Before they could proceed to
the actual exercise of that part of the right conferred, they were to give
bond; but the bond was to be given subsequently to the title granted. Besides,
no person could take advantage of the omission to give bond but the General
Assembly; and per se it worked no forfeiture; the effect of a
subsequent condition broken being only to render an estate defeasible
at the option of the grantor. Vid. Chalker v. Chalker,
1
It has been also urged for the defendants, that the plaintiffs have
extinguished their franchise, by surrendering it to the General Assembly. That
a corporation may be dissolved, and its franchises relinquished, by a surrender
of record, is not disputed; (2
The objection of waiver by the plaintiffs, in another part of the case, may be
very essential; but though a corporation may be dissolved, by non-user or misuser, and its franchises lost, yet the default must be
judicially determined in a suit instituted for that purpose. The King
v. Amery, 2 Term Rep. 515. Slee v.
Bloom & al. 5 Johns. Ch. Rep. 366, 379, 380. Terrett
& al. v.
2. The defendants were incorporated, in May, 1824, with power to lock
the
The defendants assume it as clear, that the locks are no privilege to the
plaintiffs, but a burden imposed on them; and that a prior act of the General
Assembly to incorporate John L. Sullivan and his associates, in
subversion of their franchise, received their assent.
It belongs to the plaintiffs to determine, whether the erection of the locks, which
they [**35] are empowered to erect, will,
or [*47] will not, be a burden; nor are there materials before the
court, if the enquiry were relevant, fully to decide on this point. It is a
part of their franchise; and from all persons passing through their locks, they
are authorized to take toll. Prima facie, it is a privilege, and may
be very valuable; and in all events, it is a right with which they are
invested. As to Sullivan's incorporation, it was a transaction to
which the plaintiffs are strangers; to which, so far
as the facts found authorize an opinion, they never assented; and which appears
to have been unconstitutional and void.
It is contended by the defendants, as the superior court rejected the testimony
offered, to prove, that the locks of the plaintiffs would be of no public use
or benefit, that this fact should now be taken for granted, so far as relates
to the determination of this court. The principle is sound, but of no effect;
as it matters not whether the public will, or will not, derive an advantage
from the plaintiffs' grant. The plaintiffs stand on their right to a franchise
duly conferred; and to rescind or impair it, the General Assembly is not
authorized. [**36] Such considerations, said the late Chancellor
That the bridge has not been in existence for ten years past, is made a further
objection; but it has no bearing on the title of the plaintiffs. This non-user,
if it is claimed to be a forfeiture, as has already
been shewn, must be judicially determined in a suit
instituted for that purpose. It is not the subject of enquiry, so far as
regards the plaintiffs' title, in the case before us. The same answer is
applicable to the misuser, by the speculation of Granger,
in the purchase of stock, and to the other facts offered in proof, to shew an abuse of the plaintiffs' privilege.
It has been insisted, that the charter to the Connecticut River Company
is constitutional; that it does not interfere with the plaintiffs' grant, or at
least, only in a degree so remote, that the General Assembly, in promotion of
the public good, [**37] was authorized to
make the grant; and even that the franchise of the plaintiffs may be taken
away, on sufficient indemnity.
[*48] To each of these suggestions I will briefly reply.
It is quite too late to maintain, that a state, by its law or charter, can
impair the obligation of a contract. The prohibitory clause in the constitution
of the
But a legislative grant is open to construction; and its obligation must be
ascertained, by the plain meaning of its expressions, in reference to the
subject matter of the contract. Every grant is exclusive within the boundary of
its obligation and extent, and may not be impaired, in the minutest degree. It
is not a principle, that a grant may be infringed
upon, if the variation be not great. As every variation violates, small
injuries are as much prohibited as larger ones; and the least right is as
anxiously protected as the greatest. Green & al. v. Biddle,
8 Wheat. 1 When, however, a grant of any
franchise is made, it will be carried no further than a just construction of it
will warrant. Hence, a turnpike or a ferry may be granted at such distance from
one that is prior in time, as the public good requires; if it appears on a just
exposition of the first grant, that there is no interference within its limits.
In The
Whether the grant to the plaintiffs may be taken away, on suitable indemnity,
in order the better to accommodate the public, is a point on which no opinion
is necessary. No legal indemnity has been provided; nor have the public a
right, where there is no existing law obligatory on the person invested with
property, to take away his estate, on their own ideas of a fit indemnity. In
such case, the public is only an individual treating with an individual; and a
provision, in some just and adequate manner, for compensation, is a necessary
attendant on the due and constitutional exercise of the power of the lawgiver to
deprive an individual of his property without his consent.
Now, what is the supposed indemnity? It is in the act incorporating Sullivan
and others, [**41] if any where. This act
affects to consider the right of the plaintiffs at an end, and proposes to
reinvest them with the franchise of locking
On the whole, I entertain no doubt, that the title of the plaintiffs exists;
and that under the charter of 1824, the defendants acquired no right to do the
acts they contemplated.
3. The question then arises, whether a court of chancery will, on the facts in
this case, decree an injunction.
I put out of consideration the argument founded on irreparable mischief. The
acts contemplated by the defendants cannot [**42]
be destructive of the plaintiffs' franchise, or injure it beyond reparation,
but is susceptible of a perfect pecuniary satisfaction. So long as the intended
canal should exist, and be in operation, the franchise of the plaintiffs, when
in actual enjoyment, would be of little worth. But when the operation of the
canal should be made to cease, an event entirely practicable, the damage of the
plaintiffs would cease likewise.
An injunction is not ex debito justitiae for an injury threatened or done to the
estate or rights of a person; but the granting it must always rest in sound
discretion, governed by the nature of the case. Roberts
v. Anderson, 2 Johns. Chan. Rep. 202. If the right is not
doubtful, an injunction will always be granted to secure the enjoyment of a
statute privilege, of which the party is in the actual possession.
In an anonymous case in 1 Ves.
476. an injunction was denied, to restrain the
defendants from using ferry-boats on the river
In the case before the court, the several grounds of denying an injunction
before-mentioned, conspire.
The plaintiffs are not in the possession or enjoyment of their franchise; and
whether they ever will be, is matter of contingency.
The public have a deep interest in the commodious navigation of
For the interposition of the court, I discern no justifiable ground, and advise
that the plaintiff's bill be not granted.
CONCURBY: DAGGETT
CONCUR: DAGGETT, J. There are some points presented, in this
case, about which I entertain no doubt; as
1. Did the failure of the plaintiffs to give the bond directed by the several
acts of October 1798, May 1805 and May 1806, or
their neglect to erect the bridge and locks within the time limited, defeat the
charter, or cause it to cease? I think not. These acts are not in the nature of
conditions precedent or limitations. They are not dependent on the doing of
certain acts, or to cease upon the happening of certain events, like a grant to
a certain person, tenant of the manor of Dale, or to a widow until
married. They are more like conditions subsequent, of a breach of which the
grantor only, or the state, could take advantage. If this be so, then the
charter is valid, this objection notwithstanding; for the state has not only
not sought to resume the grant directly, but has, in the resolves of May
1808, October 1808, October 1809 [**47] and October
1818, recognized this franchise of the plaintiffs--to a certain extent, at
least.
2. I see no proof of a direct surrender of the right of the Enfield Bridge
Company, if such it may be called, to construct locks. There is evidence
of a desire of the company to modify it, and perhaps to be relieved from it as
a burden. Of this I shall speak more fully for another purpose.
3. Was the grant to this company exclusive? On this point I have no doubt. It
is not like cases put at the bar of grants of turnpike companies, of ferries,
of banks, &c. A grant to a company to construct locks around the bars at
the upper falls, exhausts the power of the legislature
of locking those falls. A grant to another company to lock the same falls, would be a palpable infringement of the first grant.
In its nature, it would be to strip the first grantees of essential rights, the
power of reimbursing themselves for necessary and heavy expenditures. Such an
act would be void, as opposed to common right, and [*53]
to the constitution of the
4. Could the legislature resume this grant, upon compensation? I [**48] perceive nothing in the case to warrant
such an assumption of power. The use of land may be taken for public purposes,
by common law, by the constitution of this state, and that of the United
States; but I am not aware, that the vested rights of a corporation in a
franchise, in the possession and execution of which the public interest may be
as well subserved, by one company as by another, can
be thus taken. Could the state of
Still important questions remain to be considered; as
1. On a fair view of the acts of the legislature, can this company proceed to
erect locks, without legislative interposition? I think not. The power given in
1798, so far as it authorizes the construction of locks, imposes it as a
burden. This appears by the proviso; and the power now so strenuously claimed
is only noticed as to the taking of tolls; nor is it noticed [**49]
at all, in the subsequent acts of May 1805 and May 1806. The
object of the petitioners for the grant, was a bridge;
and the act is conversant only about a bridge. Locks are noticed only
in the acts of 1808 and 1809 with the same view; and in the latter act, the
building of locks was suspended, and the company discharged "until
the further order of the Assembly." Obvious, then, is it from the face of
the petitions of the Enfield Bridge Company, and the acts of the
General Assembly consequent thereon, that the company considered the locks as a
burden, from which they sought, and obtained, relief. Hence there appears
2. A reason for their total neglect of these locks; and hence they are not in
the exercise and enjoyment of any right or privilege in
relation to locking these falls. This right was indeed granted, or rather, this
burden was imposed, thirty years ago, and twenty-six years before a direct
grant for this great public object, to the defendants. It lay dormant in the
plaintiffs from 1809 to 1824, a period of fifteen years, unless the grant to Sullivan
and others, in 1818, can be deemed to revive it. That [*54]
act was not made at the [**50] request of this company, or designed
at all for their benefit. It treated this company as not operating under their
grant.
In this very brief view of the case, it appears to me, that to grant the
injunction prayed for, will be to permit the Enfield Bridge Company to
lie by, hold this franchise, and prevent the legislature from authorizing any
other company to do what in 1809 was expected, by the state and the plaintiffs,
viz. locking both the upper and lower falls. It would be an
unwarrantable exercise of power in a court of chancery, under these
circumstances, to grant an injunction. The plaintiffs are not in the exercise
and enjoyment of any right, which the defendants are attempting to
infringe. If they have a strict legal right, let them establish it in a court
of law.
Without adverting to many other topics, discussed at the bar, I entirely concur
in refusing the injunction.
PETERS, J. concurred in the views of Judge Daggett.
BRAINARD, J. was absent.
LANMAN, J. concurred in the result; but what were his views upon the particular
points discussed, the reporter has not been able to ascertain.
Bill to be dismissed.