Bigelow, J.
The case set out in the bill is clearly within the equity jurisdiction of the court. The plaintiffs are a corporation established by an act of the legislature, which confers upon them a franchise of a public nature; they are, and for a long time have been in the possession and enjoyment of this franchise, and in the exercise of the rights and duties with which they are clothed by itieir charter; the acts of the defendants, alleged in the bill and admitted by the answer, if illegal and without right, tend directly to the disturbance, dispossession and destruction of their franchise, and to the deprivation of all the rights and privi[480]*480leges conferred upon them by law. There can be no doubt, that suci an injury and invasion of the rights of a corporation are n lega, contemplation a nuisance, and that the only full and adequate remedy therefor is to be found in a resort to the equity powers of the court. Charles River Bridge v. Warren Bridge, 6 Pick. 376. Boston Water Power Co. v. Boston & Worcester Railroad, 16 Pick. 512. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 27.
The whole controversy in the present case turns upon the validity of the acts of the defendants, by v. hich they proceeded in July 1855 to take, lay out and appropriate the bridge con structed and owned by the plaintiffs, as and for a town way This was done in pursuance of a power expressly granted to the defendants by St. 1853, c. 356, § 3; and it is clear that if this act was originally valid and still continues in force, and the defendants have done nothing by which they have surrendered or lost the power and authority conferred upon them by it, their doings have been legal, and there is no ground for maintaining this suit.
1. The plaintiffs rely upon various objections to defeat and annul these proceedings, the first and most important of which is, that the section of the statute above cited, which gives to the defendants the right to enter upon and take the bridge of the plaintiffs, and lay it out as a town way, is unconstitutional and void. This position is based on the familiar principle, that the act incorporating the plaintiffs is a contract with the government, which it cannot legitimately impair or destroy. Starting with this, the plaintiffs then contend that the effect and necessary consequence of the power given to the defendants by the act in question is to infringe on the obligation of this contract, because it takes away their franchise and deprives them of the rights and privileges conferred upon them by their original act of incorporation.
It is true that the plaintiffs, by accepting and acting under the act by which they were created, and by advancing their money and building me bridge upon the faith of it, are entitled to insist that the legislature shall not invalidate or disregard the powex [481]*481granted to them or the right created and vested by their charter. But it is also true that their powers and privileges, including everything which constitutes their franchise, are held and enjoyed in the same manner and by the like tenure as all other property and every species of valuable right and interest are possessed and owned under our constitution and laws. They can claim no special exemption or privilege for their franchise. It is subject to the same sovereign right of eminent domain, by which the property and rights of all subjects and individuals are liable to be taken and appropriated to a public use, in the manner provided in the Constitution, whenever the legislature shall deem that the public exigencies require it. This principle is too well settled by the highest authority to be now open to question. West River Bridge v. Dix, 6 How. 507. Richmond, Fredericksburg & Potomac Railroad v. Louisa Railroad, 13 How. 83. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 35. Springfield v. Connecticut River Railroad, 4 Cush. 63. In the case first cited, it was fully recognized and applied to facts very similar to those in the case at bar. It was there held, that a franchise to build and maintain a bridge might be taken and appropriated to a public use, and that the right of a corporation, under a charter from a state legislature, to erect and keep up a bridge and take tolls thereon, might be taken for a highway in the due exercise of the right of eminent domain.
Nor is the principle thus recognized any violation of justice or sound policy, nor does it in any degree tend to impair the obligation or infringe upon the sanctity of contracts. It rests on the basis that public convenience and necessity are of paramount importance and obligation, to which, when duly ascertained and declared by the sovereign authority, all minor considerations and private rights and interests must be held, in a measure and to a certain extent, subordinate. By the grant of a franchise to individuals for one public purpose, the legislature do not forever debar themselves from giving to others new and paramount rights and privileges when required by public exigencies, although it may be necessary in the exercise of such rights and privileges to take and appropriate a franchise pre[482]*482viously granted. If such were the rule, great public improvements, rendered necessary by the increasing wants of society in the development of civilization and the progress of the arts, might be prevented by legislative grants which were wise and expedient in their time, but which the public necessities have outgrown and rendered obsolete. The only true rule of policy, as well as of law, is that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any infringement on the constitutional ngnts uf the subject. If in such cases suitable and adequate provision is made by the legislature for the compensation of those whose property or franchise is injured or taken away, there is no violation of public faith or private right. The obligation of the contract created by the original charter is thereby recognized. The property of individuals in it, and the rights acquired by them under it, like other property appropriated for public uses, form proper subjects for indemnity in damages under the provision in the tenth article of our Declaration of Rights.
These well established principles leave no room for doubt as to the validity and binding force of the provision contained in ■St. 1853, c. 356, § 3, under which the acts set forth in the bill have been done by the defendants. The intent of the legislature to empower them to enter upon and take the bridge of the plaintiffs for a public use is unequivocally expressed; and adequate provision is made, by which the plaintiffs can seek and obtain compensation for all injuries and damage which they may sustain by reason of such appropriation.
2. It was further urged, as a reason why the enactment in question should be deemed illegal and void, that it was provided by the original act incorporating the plaintiffs, and the several acts in" addition thereto, that whenever the bridge should be opened free of toll, the plaintiffs should be entitled to receive a sum equal to the expense of building their bridge and repairing and maintaining the same, deducting therefrom what might have been received for toll, with nine per cent, interest thereon ; and that no provision was made by St. 1853, c.
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Bigelow, J.
The case set out in the bill is clearly within the equity jurisdiction of the court. The plaintiffs are a corporation established by an act of the legislature, which confers upon them a franchise of a public nature; they are, and for a long time have been in the possession and enjoyment of this franchise, and in the exercise of the rights and duties with which they are clothed by itieir charter; the acts of the defendants, alleged in the bill and admitted by the answer, if illegal and without right, tend directly to the disturbance, dispossession and destruction of their franchise, and to the deprivation of all the rights and privi[480]*480leges conferred upon them by law. There can be no doubt, that suci an injury and invasion of the rights of a corporation are n lega, contemplation a nuisance, and that the only full and adequate remedy therefor is to be found in a resort to the equity powers of the court. Charles River Bridge v. Warren Bridge, 6 Pick. 376. Boston Water Power Co. v. Boston & Worcester Railroad, 16 Pick. 512. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 27.
The whole controversy in the present case turns upon the validity of the acts of the defendants, by v. hich they proceeded in July 1855 to take, lay out and appropriate the bridge con structed and owned by the plaintiffs, as and for a town way This was done in pursuance of a power expressly granted to the defendants by St. 1853, c. 356, § 3; and it is clear that if this act was originally valid and still continues in force, and the defendants have done nothing by which they have surrendered or lost the power and authority conferred upon them by it, their doings have been legal, and there is no ground for maintaining this suit.
1. The plaintiffs rely upon various objections to defeat and annul these proceedings, the first and most important of which is, that the section of the statute above cited, which gives to the defendants the right to enter upon and take the bridge of the plaintiffs, and lay it out as a town way, is unconstitutional and void. This position is based on the familiar principle, that the act incorporating the plaintiffs is a contract with the government, which it cannot legitimately impair or destroy. Starting with this, the plaintiffs then contend that the effect and necessary consequence of the power given to the defendants by the act in question is to infringe on the obligation of this contract, because it takes away their franchise and deprives them of the rights and privileges conferred upon them by their original act of incorporation.
It is true that the plaintiffs, by accepting and acting under the act by which they were created, and by advancing their money and building me bridge upon the faith of it, are entitled to insist that the legislature shall not invalidate or disregard the powex [481]*481granted to them or the right created and vested by their charter. But it is also true that their powers and privileges, including everything which constitutes their franchise, are held and enjoyed in the same manner and by the like tenure as all other property and every species of valuable right and interest are possessed and owned under our constitution and laws. They can claim no special exemption or privilege for their franchise. It is subject to the same sovereign right of eminent domain, by which the property and rights of all subjects and individuals are liable to be taken and appropriated to a public use, in the manner provided in the Constitution, whenever the legislature shall deem that the public exigencies require it. This principle is too well settled by the highest authority to be now open to question. West River Bridge v. Dix, 6 How. 507. Richmond, Fredericksburg & Potomac Railroad v. Louisa Railroad, 13 How. 83. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 35. Springfield v. Connecticut River Railroad, 4 Cush. 63. In the case first cited, it was fully recognized and applied to facts very similar to those in the case at bar. It was there held, that a franchise to build and maintain a bridge might be taken and appropriated to a public use, and that the right of a corporation, under a charter from a state legislature, to erect and keep up a bridge and take tolls thereon, might be taken for a highway in the due exercise of the right of eminent domain.
Nor is the principle thus recognized any violation of justice or sound policy, nor does it in any degree tend to impair the obligation or infringe upon the sanctity of contracts. It rests on the basis that public convenience and necessity are of paramount importance and obligation, to which, when duly ascertained and declared by the sovereign authority, all minor considerations and private rights and interests must be held, in a measure and to a certain extent, subordinate. By the grant of a franchise to individuals for one public purpose, the legislature do not forever debar themselves from giving to others new and paramount rights and privileges when required by public exigencies, although it may be necessary in the exercise of such rights and privileges to take and appropriate a franchise pre[482]*482viously granted. If such were the rule, great public improvements, rendered necessary by the increasing wants of society in the development of civilization and the progress of the arts, might be prevented by legislative grants which were wise and expedient in their time, but which the public necessities have outgrown and rendered obsolete. The only true rule of policy, as well as of law, is that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any infringement on the constitutional ngnts uf the subject. If in such cases suitable and adequate provision is made by the legislature for the compensation of those whose property or franchise is injured or taken away, there is no violation of public faith or private right. The obligation of the contract created by the original charter is thereby recognized. The property of individuals in it, and the rights acquired by them under it, like other property appropriated for public uses, form proper subjects for indemnity in damages under the provision in the tenth article of our Declaration of Rights.
These well established principles leave no room for doubt as to the validity and binding force of the provision contained in ■St. 1853, c. 356, § 3, under which the acts set forth in the bill have been done by the defendants. The intent of the legislature to empower them to enter upon and take the bridge of the plaintiffs for a public use is unequivocally expressed; and adequate provision is made, by which the plaintiffs can seek and obtain compensation for all injuries and damage which they may sustain by reason of such appropriation.
2. It was further urged, as a reason why the enactment in question should be deemed illegal and void, that it was provided by the original act incorporating the plaintiffs, and the several acts in" addition thereto, that whenever the bridge should be opened free of toll, the plaintiffs should be entitled to receive a sum equal to the expense of building their bridge and repairing and maintaining the same, deducting therefrom what might have been received for toll, with nine per cent, interest thereon ; and that no provision was made by St. 1853, c. 356, for the payment of this sum, but that a diffeient rule of compensation was thereby established, in violation of the plaintiffs’ rights.
[483]*483Admitting, for the sake of argument, that the construction put by the plaintiffs on their charter and the several acts in addition thereto is correct, it is very certain that the conclusion drawn from it in connection with the act in question is wholly unfounded. The St. of 1853, c. 356, establishes no measure of compensation for the damage which may be sustained by the plaintiffs by reason of the exercise of the power conferred on the defendants. It changes none of the rights of the plaintiffs under their charter. It only provides for the taking and appropriation of them to a public use. It leaves their value, and the proper compensation to be paid for them by the public, to be determined by the legally constituted tribunals having jurisdiction of the subject matter, according to the rules of law applicable thereto. If, by the several acts under which the plaintiffs have acquired and now hold their rights and privileges, they are entitled to a certain fixed measure of damage to be ascertained by a prescribed rule, they can recover it of the defendants in the manner pointed out by law. Their rights in this respect remain unimpaired by the act of 1853, c. 356.
3. But it is further urged by the plaintiffs, that if that act was constitutional and valid, so that it would have justified the acts of the defendants, if seasonably undertaken and completed, it was repealed by St. 1854, c. 436.
It seems to us, however, that this argument proceeds upon an entire misapprehension of the purpose intended to be effected by the latter act. This will be readily seen by reference to the original act incorporating the defendants, St. 1824, c. 110, § 3, providing that “ whenever the inhabitants of the towns of Dracut and Chelmsford shall remunerate said proprietors for the expense of said bridge (deducting what may have been received for toll) the same may be opened free of toll.” This right was recognized and confirmed by the acts subsequently passed, allowing the plaintiffs to increase their capital stock; Sts. 1843, c. 50, § 4; 1845, c. 31, § 2; and also by St. 1851, c. 106, and by the act in question, St. 1853, c. 356, § 4. By St. 1851, c. 106, the right conferred by the above provisions upon the inhabitants of the town of Chelmsford was transferred to and vested in the city [484]*484of Lowell, which had, subsequently to the charter of the plain tiffs, been incorporated out of territory originally forming part of the town of Chelmsford. With the right thus conferred upon the towns of Dracut and Chelmsford, and transferred from the latter to the defendants, of remunerating the plaintiffs for the cost of their bridge and opening it free of toll, no corresponding remedy was given. The parties were left to seek out such means of enforcing their right against the plaintiffs as the rules of law might furnish. These, it is obvious, would not be very adequate or complete. The sole object therefore of St. 1854, c. 436, was to supply this defect, and to afford the specific remedy of a bill in equity, at the suit of the town of Dracut and the city of Lowell, or either of them, to enforce the right which had been conferred on them by previous acts. This is the plain intent of the statute. It is' susceptible of no other reasonable construction.
Viewed in this light, it was not intended and cannot operate to repeal the St. of 1853, c. 356, § 3. There are no express words of repeal; and there is nothing inconsistent or repugnant in the two acts, so that the latter operates to repeal the former by implication. The purposes of the two acts are widely different. The former was intended to delegate to the city of Lowell' the right of eminent domain, to be exercised for the public good, with all the rights and incidents properly ^ appertaining thereto, among the chief of which is that of appropriating private property against the will of the owner to a public use. The latter was only intended to enable the town of Dracut and the city of Lowell, or either of them, to enforce a right of purchase, to which they were entitled by the several acts under which the plaintiffs held then1 corporate powers. It was only a remedial statute, intended to carry into effect former provisions of law, but conferred no new rights, and neither changed nor repealed those which already existed.
4. This view of the purposes and objects of the two statutes is decisive of the remaining objection urged by the plaintiffs to the legality of the proceedings of the defendants, which is, that by filing a bill in equity under St. 1854, c. 436, § 1, the defend[485]*485ants have conclusively elected their remedy and precluded themselves from the right of exercising the power of laying out the bridge as a town way under St. 1853, c. 356, § 3.
There is no doubt of the rule, applicable alike to both legal and equitable remedies, that, where a party has a right of election between two remedies of different natures for the same right, the election of one, deliberately made, with a knowledge of all the facts, and notified to the other party by suit, which has already caused him to incur expense and trouble, will be deemed conclusive, and a good bar to the enforcement of another remedy to vindicate or secure the same right. But the case at bar does not fall within this rule. The fallacy of the plaintiffs’ argument is in assuming that the two remedies provided by law in the present case are designed to enforce the same right. This is not so. The suit in equity is not brought by the same party by whom the proceedings to lay out the bridge as a town way are instituted. The latter are commenced and prosecuted by the city of Lowell alone. The former is a joint suit in the names of the city of Lowell and the town of Dracut. The latter is the exercise of the right of eminent domain delegated by the Commonwealth to the defendants only. The former is the enforcement of a joint right of purchase, vested in the defendants and the town of Dracut in their corporate capacities. They are therefore, in legal contemplation, proceedings prosecuted diverso intuitu, and although in their results the object to be effected may be the same, they are in reality different remedies for enforcing different and distinct rights.
It is however quite clear that the suit in equity for the purchase of the franchise of the plaintiffs cannot be further prosecuted with advantage, because it is superseded by the appropriation of the franchise, under valid proceedings, for the purposes of a town way. We think therefore that its further prosecution should be discontinued, and thereupon the case will be disposed of by an entry of
Bill dismissed.