THE COMPANY FOR ERECTING AND SUPPORTING A TOLL BRIDGE
WITH LOCKS FROM
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.
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.