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 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 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]*44erect 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 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 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]*45acts, 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 plaiatiffs did not 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 confer-I'ed, they were to give bond ; but she 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 de-feasible at the option of the grantor. Vid. Chalker v. Chalker, 1 Conn. Rep. 79. The breach may always be waived ; and this may always be done expressly, or by impiication. In this case, the breach of the supposed condition was constructively waived, by the acceptance of the bridge, as well as by the various resolves prolonging the time for the erection of it. Thus the case would stand at common law ; but in chancery, the breach of a condition, whether precedent or subsequent, is always relieved against, if compensation can be made. Hayward v. Angell, 1 Vern. 222. 2 Cruise’s Dig. 40. & seq. Walker & al. v. Wheeler & al. 2 Conn. Rep. 299. If, therefore, there had been no waiver of the breach of the condition, and a bridge had been built, in all respects, pursuant to the charter, a court of chancery would not hear an objection so inequitable as the one made concerning the locks.
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 maybe dissolved, and its franchises relinquished, by a surrender of record, is not disputed ; (2 Kent’s Comm. 250.) but the surrender must be accepted by government. In this case, there has neither been [46]*46a surrender, nor the acceptance of a surrender. The application by the plaintiffs to the General Assembly, praying the appointment of a committee to view and examine, at their expense, the falls in the river, and to report their opinion as to the best mode of erecting the locks, was made with this express reservation, that their rights and interests were not to be sacrificed. And on the coming in of the report, the General Assembly merely suspended the building of the locks, and relieved the company from an obligation to build until their further order. But their right to build the locks remained, and was exercisable at their pleasure.
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. Terrell & al. v. Taylor & al. 9 Cranch 51. The Commonwealth v. The Union Fire and Marine Insurance Company in Newburyport, 5 Mass. Rep. 230. So far as this Court can enquire, that nothing has been done or omitted to impair or destroy the plaintiffs’ title under the charter, I. hold to be extremely clear. Assuming the right of the plaintiffs to the franchise before mentioned, I am brought to consider the second point in the case.
2. The defendants were incorporated, in May, 1824, with power to lock the Enfield falls, and have organized themselves. They are collecting materials, and preparing to construct a canal and locks, on or near the bank, on the West side of Connecticut river, directly opposite to the place granted and designated for the erection of the locks, by the Enfield Bridge Company. They claim a right to do this, on several distinct grounds. Two of them have already been disposed of, viz. that the plaintiffs have no title, and that they have forfeited their grant by non-user or misuser.
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 are empowered to erect, will, or [47]*47will 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 Rom all persons massing through their locks, they are authorized to take foil. 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. Such considerations, said the late Chancellor Kent, in The Newburgh and Cochecton Turnpike Company v. Miller & al. 5 Johns. Chan. Rep. 109. I shall lay out of view, as altogether inapplicable to the question of right; the plaintiffs are in possession of a franchise or statute privilege, of which they cannot be divested, by such considerations.
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 re-moté, that the General Assembly, in promotion of the public good, was authorized to make the grant; and even that the franchise of the plaintiffs may be taken away, on sufficient indemnity.
[48]*48To 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 United States, is conclusive on this subject. A grant is a contract within the meaning of the constitution. The point is fully settled, that a legislative grant, competently made, vests an indefeasible and an irrevocable title. Nor can the legislature repeal statutes creating private corporations, and by such repeal, or by grant without such repeal, vest the property in others, without the consent or default of the corporators. Both the letter and the spirit of the constitution of the United States are violated, by such a proceeding, as well as the fundamental principles of natural justice and of the social compact. Thus far, there exists no controversy. Fletcher v Peck, 6 Cranch, 87. The State of New-Jersey v. Wilson, 7 Cranch, 164. Terrett & al. v. Taylor & al. 9 Cranch, 43. Dartmouth College v. Woodward, 4 Wheat. 518.
But a legislative grant is open to construction ; and its obligation mustbe-ascertained, by the plain meaningofits 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 Newburgh and Cochecton Turnpike Company v. Miller & al. 5 Johns. Chan. Rep. 101. it was justly said, by Chancellor Kent, “ that no rival road, bridge, ferry, or other establishment of a similar kind, and for like purposes, can be tolerated so near to the other, as materially to affect or take away its custom. It operates as a fraud on the grant, and goes to defeat it. The consideration, by which individuals are invited to expend money upon great, expensive and hazardous public works, as roads or bridges, and to become bound to keep them in con[49]*49stant repair, is the grant of the right to an exclusive toll. This right, thus purchased for a valuable consideration, cannot be taken away, by direct or indirect means, devised for the purpose, both of which are unlawful.” These principles, emanating from high authority, are equally just and sound, and their application is clear and obvious. If the works contemplated by the Connecticut River Company are constructed, they cannot fail to be injurious to the plaintiffs’ franchise ; and at least, must materially affect and take away their custom, and diminish the toll they otherwise would receive. The point is too clear to stand in need of remark. I will only observe, that the grant to the plaintiffs was intended to confer on them a right to all the toll for facilitating the passage across the bars before-mentioned ; and the subsequent grant to the Connecticut River Company was for the same purpose. The latter grant, from its extent, receiving persons into the canal proposed to be made, at a superior point, would engross the custom, and nearly annihilate the toll receivable, by the Enfield Bridge Company
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. Gardner v. Newburgh & al. 2 Johns. Chan. Rep. 162. Vid. 2 Kent’s Comm. 275.
Now, what is the supposed indemnity ? It is in the act incorporating Sullivan and others, 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 Enfield falls, if within thirty days from the rising of the General Assembly, a majority of the proprietors should pass a vote, and take measures to carry the same into effect without delay. If this new grant is not accepted, the plaintiffs have the option given them of subscribing for one half of the shares in the new [50]*50corporation. In effect, the plaintiffs, in lieu of their franchise, are permitted to purchase the moiety of an equivalent franchise, and to become associates with strangers. If the grant-to Sul-i{van ancj others were of any validity, to call the above provision an indemnity, would be an abuse of language.
Qn 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 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 justifies 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. Livingston & al. v. Van Ingen & al. 9 Johns. Rep. 507. 587. The Croton Turnpike Company v. Ryder & al. 1 Johns. Chan. Rep. 611. The Newburgh and Cochecton Turnpike Company v. Miller & al. 5 Johns. Chan. Rep. 101. Ogden v. Gibbons, 4 Johns. Chan. Rep. 150. On a careful examination of all the cases cited by counsel, and of others bearing on the same point, I do not find, that chancery has gone beyond this limit. To prevent or suppress an act, in the cases alluded to, that by possibility may be injurious in future, short of irreparable damages, I am not aware that chancery has ever interposed. In the case of The Newburgh and Cochecton Turnpike Company v. Miller & al., of The Croton Turnpike Company v. Ryder & al., of Ogden v. Gibbons, of Belknap & al. v. Belknap & al, 2 Johns. Chan. Rep. 463., of Livingston & al. v. Van Ingen & al. 9 Johns. Rep. 507. and those referred to in the 2nd vol. of Swift’s [51]*51Digest 140, I., all of which were cited for the plaintiffs, the injunctions were for damage to the persons, who were in the actual enjoyment of the estate affected. To the same effect there have been other determinations. Bush v. Western, Prec. Chan. 530. Anon. 1 Ves. 476. Harrier v. Plane, 14 Ves. 132. Hill v. Thompson & al. 3 Meriv. 622. These decisions are all highly just and reasonable. To restrain multiplicity of suits, and prevent immediate damage to a statute privilege, is the exercise of a sound discretion. But to prevent future damage that by possibility may arise, when the plaintiff is not in the possession or enjoyment of a franchise, and perhaps never may be, a court of equity is not called upon to exercise its extraordinary powers. On the same principles, it was observed by Lord Hardwicke, in the case of Coulson v. White, 3 Atk. 21., that every common trespass is not a foundation for an injunction, when it is only contingent and temporary.
In an anonymous case in 1 Yes. 476. an injunction was denied, to restrain the defendants from using ferry-boats on the river Tyne, because the plaintiffs had not shewn, that they had kept up a sufficient number of ferry-boats. Eden 165. And where a party has been guilty of great laches, the court has refused to interpose against the erection of a nuisance. 2 Eq. Ca. Abr. 522. Injunctions are sometimes granted to quiet the possession ; but, in such cases, the party applying must have had peaceable possession of the premises by the space of three years, before the filing of the bill. Eden 240.
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 Connecticut river, and it is peculiarly inequitable, that the rights of a community should be sacrificed, to insure the franchise of the plaintiffs from all possible damage, while they are in the actual enjoyment of it, and have taken no measures to pay the price of their charter. This, however, is not all. Twenty years have elapsed, and nothing has been done, by the plaintiffs, to benefit the navigation of Connecticut river. For this extraordinary degree of laches no apology is derived from the omission of an order, by the General Assembly. No application has been made to them, by the plaintiffs, to turn their attention [52]*52to this subject. Nor does it appear, that any effectual measures have been taken, or are even contemplated, to bring this lethargy to a termination. A small piece of ground has been purchased, and this is all; except the declarations now made of an invisible intention to do what might and ought to have been done long since.
For the interposition of the court, I discern no justifiable ground, and advise that the plaintiff’s bill be not granted.
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 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]*53to the constitution of the United States; and it would be the clear duty of the court to disregard it.
4. Could the legislature resume this grant, upon compensation ? I 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 Connecticut divest the several banks of their chartered rights, to make room for a state bank ; — unless, indeed, the power be reserved in the grant, as is ' he fact in relation to some of them. Nor am I satisfied, that the act of 1824, under which the defendants claim, does make provision for compensation to the Enfield Bridge Company.
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 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]*54act was not made at the request of this company, or designed a[[ for their benefit. It treated this company as not operating under their grant.
|n 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.
[575]*575The following opinion of the Hon. James Kent, late Chancellor of the State of New-York, upon the principal points agitated in the case of The Company for erecting and supporting a Toll Bridge with Locks from Enfield to Sufiield v. The Connecticut River Company, ante 28 — 54. is inserted here, as an appendix to that case.
CASE.
The Connecticut River Company have submitted for my inspection the fol. lowing documents, viz:
I. The various acts and resolutions of the general assembly of Connecticut, relating to Enfield Bridge and Falls. These acts and resolutions are, 1. The act of the date of the 2d Thursday of October, 1798, which incorporates The Company for erecting and supporting a toll bridge with lochs from Enfield to Sufiield. 2. The act or resolution of the assembly, in May 1805, prolonging the time allowed for finishing the bridge. 3. The act oiy resolution in May 1806. 4. The act or resolution in May 1808. 5. The like. 6. The petition of the company, in October, 1808 ; and a grant of the prayer of the petition. 7. A resolution of the legislature, in October 1808. 8. Resolution of the assembly of May, 1809. 9. A report of a committee on the subject of Enfield Falls, and the acceptance of the same, in October 1809. 10. Resolution of the general assembly of October 1809. 11. An act to incorporate J. L. Sullivan and his associates, in October 1818. 12. An act in addition thereto, in May 1819. 13. An act to incorporate The Connecticut River Company, m May 1824. 14. An act or resolution of May 1826.
II. The copy of the answer in chancery in the suit of The Enfield Bridge Company v. Alfred Smith ⅜ others, in the superior court of September 1827.
III. A certified copy of several votes of - The Company for erecting and supporting a toll bridge with lochs from Enfield to Sujfieldt at their annual meeting, the 14th of January 1822.
IV. A large map of part of Connecticut River, including Enfield Falls, and certified by commissioners upon oath, the 20th June 1827. Map of Enfield upper falls, on a scale of four chains to an inch.
Upon these documents the following questions have been submitted for toy opinion :
1. Do the existing rights of the Enfield Bridge Company present a constitutional obstacle to the making and using of the canal undertaken by The Connecticut River Company ?
2. Is this a case for an injunction in favour of the Bridge Company, while they have neither made, nor commenced making, locks ?
OPINION.
In answer to the first question, I would preliminarily observe, that I was consulted by the Enfield Toll Bridge and Loch Company, in August 1826, and such parts of the acts and resolutions of the legislature of Connecticut as are referred to in 1. 2. 3. 4. 5. 8. 9. 10 and 14. of the first branch of the preceding case, were the ground of an opinion that I then gavfe, in which it appeared to [576]*576me, that the Enfield Company were still entitled to erect the two locks at Mad Tom and Surf Bars, mentioned in the acts referred to ; and that the right had not been destroyed or impaired.
Whether that opinion would have been given, if I had seen, or had my attention directed to all the documents now referred to, in the above case, may be questionable. I presume, I intended to found it entirely upon the documents which I stated in the case I drew. Some of the documents now re^ fefted to under the first head, and which, by being in print, are brought more readily and accurately to a comprehensive view, and particularly the document referred to as III., being the resolution of the company in 1822, do undoubtedly present a different view of the subject.
But I neither wish nor intend to weaken or impair the force of the opinion which I formerly gave, in reference to the documents upon which it was founded. The case now before me may be considered in coincidence with my former opinion ; and my present opinion will be grounded on the entire new state of the case, and questions and rights altogether distinct from the former.
1. Question. — Do the existing rights of the Enfield Bridge Company present a constitutional obstacle to the making and using of the canal undertaken by The Connecticut River Company ?
Answer. — The Enfield Company rights had reference, essentially, to a bridge across the Connecticut River, and toll for passing it as a compensation. The locks at Mad Tom and Surf Bars were consequences of the original grant, and intended to be auxiliary to it. They were rather appurtenances to the right to build the bridge, than principal privileges. All the acts of the legislature, and all the petitions and reports connected with those acts, shew this. The locks were rather considered as burdens annexed to a favour;. and it is very apparent, that the company for a long time so considered them.
But now, by the act of|1824, a company is created for a different purpose, and on a much larger scale, and for public objects of great general utility. The primary object of the new company is the navigation of the river, and not a passage bridge. It is to surmount and evade all the whole inconvient navigation over rapids, rips and bars, for several miles ; and the construction of this grant is to be taken liberally, and the right to lock Mad Tom Bar to be taken more strictly.
I deeline giving any opinion as to the inquiry whether the rights, of the Enfield Bridge Company to make locks at Mad Tom and Surf Bars have expired, by non-user or limitation. But I go upon the ground of the assumption of the existence of the right of the Enfield Company to go on, and build their locks, as appurtenant to their toll-bridge. Still I do not think that right bars the legislature from allowing a canal from still water to still water on the west side of the river. It would probably disturb the The Enfield Bridge Company privilege, if erected on the east side. I therefore lay emphasis on the fact of its being on the west side; and then I think that narrow privilege cannot bar a great and larger privilege in a different place, though it might indirectly take away the custom. .Such a construction would be most mischievous and monstrous. It might be extended to destroy the right to run a canal from Northampton to New-Haven ; for that, if successful, would diminish, at least very greatly, the custom at the Mad Bar and Surf locks.
I have no idea of pushing a monopoly to that extent; and I think that these extensive privileges (though sacred within their limits) are to be taken strictly as against the public improvement in other places. To erect a new [577]*577bridge, or ferry, or fair, of the same kind, so near to another as to draw away its custom, would be a fraudulent evasion of its rights and privileges. It would be a nuisance; and this is all the principle that can be urged and applied m this case, in opposition to a canal on the west side of the river ; and I think it does not apply. If there be an exclusive ferry from A. to B.f it does not prevent persons from going by any other boat from A. directly to C.t though it lies near to B., provided it be not done fraudulently, and as a pretence for avoiding the regular ferry. Tripp v. Frank, 4 Term Rep. 666.
2d Question. — Is this a case for an injunction in favour of The Enfield Bridge Company, while thej* have neither made, nor commenced making, locks ?
Answer. — I am very clearly of the opinion, that it is not a proper case for an injunction. The Enfield Bridge Company are not in the exercise and enjoyment of their locks at Tom and Surf Bars. They have not erected them; and have omitted to do it, for the enormous lapse of thirty years. There never was an injunction granted upon a monopoly privilege so rusty by non-user. They are not granted but to maintain rights in full enjoyment and exercise. The Enfield Company ought first to erect their locks and finish them as the law intended, before they are entitled to such a summary and extraordinary remedy as an injunction. Besides, the injunction might of itself work irreparable mischief, by suspending the canal operations ; and if eventually, on review, the right of The Enfield Company should be found imperfect, how are The Connecticut Company to be indemnified ? The doctrine is, that the party calling for an injunction, must have exclusive possession. He must be in actual enjoyment of his franchise ; and if not so, he must first establish his title at law before equity will help him in this way. Hill v. Thompson & al. 3 Meriv. 622. 624. Livingston v. Van Ingen, 9 Johns. Rep. 586. Sullivan v. Redfield & al. 1 Paine's Rep. 441.
Upon the whole, I have no doubt that in taking all the circumstances of the case into view, it would be a novel and extraordinary exercise of equity power, to award an injunction, at present, against the exercise of such an improvement on the canal, in favour of such a claim as that to lock Mad Tom< Bar, when the right has lain unexecuted thirty years, and remains so still.
JAMES KENT.
New-York, June 1th, 1828.