Williams, Ch. J.
The plaintiffs were authorized, by the General Assembly, in the year 1708, to erect a bridge across Connecticut river, at Enfield, with the power to collect tolls, and an obligation to keep the same in repair for 100 years, with a specification of the subjects of toll. The charter further provided, that no person should have liberty to erect another bridge any where between the North line of Enfield and the South line of Windsor. This resolve has been somewhat modified, from time to time, and in 1839, this company were authorized to enlarge the same, or erect another bridge, exclusively for the use of the rail-road company : provided, that nothing therein was to affect, in any way, the rights of the rail-road company under their charter.
A rail-road company has, long since 1798, been incorporated, to build a rail-road from Hartford to Springfield. The paintiifs went on, and built their bridge, and for many years, have been taking tolls thereon ; and the defendants have gone on, and built their road, and extended the same across the river within the limits protected by the charter of the plaintiffs, by which the travel will, in some degree, be diverted [55]*55from the plaintiffs’ bridge. The plaintiffs seek, by injunction, c , to stop the building of the rail-road bridge ; but durine; pendency of the plaintiffs' bill, the defendants have gone on and completed their work; and the plaintiffs, stating this fact, in a supplemental bill, claim, that an injunction should issue as as originally asked, or oilier relief gi anted. The case reserved, by the superior court, and several specific questions proposed ; but it has been argued without reference to those specific questions, and has been considered and decided, by the court, upon the general merits of the case.
These questions are then presented; Have the plaintiffs any claim for the interposition of this court \ And is this the proper remedy \
It was intimated, on the part of the defendants, that the court would not be anxious to assist in the monopoly claimed by the plaintiffs. The court are only anxious to do justice to these parties; but as both claim under legislative charters, and both claim that they have in view a public object, and both have expended considerable sums .under their respective grants, we do not think that on either side there is any monopoly, in the odious sense of the term. Both grants were made by the legislature, under an expectation that some public benefit would accrue from them ; and such inducements were held out as were intended to carry into effect the proposed objects of their charters. These objects, it has been supposed, would be accomplished with more economy and less danger to the community, if left to private enterprise, than if they should become a subject of the patronage of government; and our legislature have been accustomed to make such grants to individuals, with the right of taking tolls to reimburse the expenses necessarily incurred. And it has been held, tiiat every such grant is exclusive,within the boundary of its obligation and extent. It is in the nature of a contract, which may not be impaired. 7 Conn. R. 48. But besides this, for the greater certainty and security of the grantee, the legislature have sometimes stipulated, that there should be no rival establishment within a certain distance, or in a limited period. If the law implies an exclusive right in charters of this kind, as has been said by this court, in the case of this Corporation v. The Connecticut River Company, 7 Conn. R. 29—48. an express stipulation to the same effect [56]*56must of course be sanctioned. Its expediency must be a r of legislative discretion.
When such stipulations are made, it becomes the duty of j^e cour{ f0 g\ve them such construction as will carry them into full effect.
To induce these plaintiffs to undertake the work, they had ¡n vjeWj which, at that time, was considered a great work, it was expressly provided, that no person or persons should have liberty to build another bridge between the North line of said Enfield and the South line of Windsor, across said river. The terms here are explicit, not depending upon construction.
The question, then, arises, are the defendants violating the rights of the plaintiffs thus acquired ? That they are passing Connecticut river constantly, with their locomotives raid the train, on a structure they have laid across said river, by authority of the General Assembly, and within the limits se-I cured to the plaintiffs, is not denied. But they say, this is I not abridge, or such abridge as is contemplated by the Iplaintiffs’ charter.
The defendants claim they have a grant, under which they have a right to lay a rail-road or way from Hartford to Springfield; that this of course imports a right to cross Connecticut river; that this structure over the river, is part of their rail-way, and not a bridge in the sense of the charter. What then is a bridge ? It is a structure of wood, iron, brick or stone, ordinarily erected over a river, brook or lake, for the more convenient passage of persons and beasts, and the transportation of baggage; and whether it is a wide raft of logs floating upon the water, and bound together with withs, or whether it rests on piles of wood, or stone abutments, or arches, it is still a bridge. The particular manner in which this structure is built, is not described ; but it is said to be much in the manner common to rail-road bridges, the bottom covered with plank, and the sides secured by railing. It is a matter of notoriety, that rail-road bridges are built upon solid abutments of mason-work, and resting on piers of stone between the abutments, thus giving strength and security to the frame above. It is not easy to see wherein such a structure differs from an ordinary bridge, except that as it is to endure a greater burthen, it is more solid and substantial. [57]*57It is true, the plank and rails upon it are laid in a manner, most convenient for the cars which are to pass it, and not convenient for — perhaps not admitting — common vehicles-, and not intended for, though admitting, the passage of foot passengers.
It would seem, therefore, as if this was what would be ordinarily called a bridge. Bpt we agree with the defendants’ counsel, that it is not the name, which is sufficient to designate it. We then must consider the object — what was the intent of this structure ? The safe and expeditious passage of persons, whether from greater or less distances, over this stream, in the cars or carriages provided for that purpose, together with all baggage or freight entrusted to the care of the company. It may not, and is not intended to, accomplish all the objects of a common bridge, as it is not adapted to the common vehicles in use. But can that fact change its character as a bridge ? A bridge adapted only to foot passengers would still be a bridge ; and it would hardly be claimed, that such a bridge might be erected by the side of the plaintiffs’, under the provisions of this act. We find, then, a structure of the form of a bridge, with the name of a bridge, and of the character of a bridge. But go a step further, and see if it is not doing the business of a bridge ? Certain facts are not specifically found, which we all know must exist ; such as that every passenger in the cars from Hartford to Springfield must cross this river upon this bridge within the limits secured to the plaintiffs. It is certainly doing at least some, if not much, of the business which the plaintiffs had a fair right to expect, under their grant. We find, then, this structure, with the form of a bridge, with the name of a bridge, with the character of a bridge, doing its work, and in this way doing the very injury to the plaintiffs, which this proviso was designed to guard against. We cannot then but conclude it is a bridge.
It is said, it is not the bridge contemplated in the act, or “ another bridge.” It cannot be claimed, that by another bridge, was intended a bridge exactly like this, or that a bridge of iron, or stones, would not be within the provision, or even a bridge of boats ; nor can it be claimed, that a bridge much safer or stronger, would not be equally within the prohibitions. Nor is it the improvement in the structure [58]*58^ie bridge, nor the additional safety it affords to travellers, ^at sive 1*16 rights, or constitute it “ another bridge.” That it was understood, by the legislature and the persons t|)at the structure to be erected over Connecti-cu^ liver> was a bridge, in the ordinary acception of the term, is apparent from the 10th section of the charter of the Spring-Rail-Road, Company, in which it is resolved, that should it be necessary to erect a bridge across Connecticut river, it should be for the sole use of the rail-road train, and for no other travel; and it should not be lawful for the company to permit other carriages &c. to pass ; and by that provision, it would seem, it was intended to guard the rights of the plaintiffs. For the 19th section contains a proviso, That nothing herein contained shall be construed to prejudice or 'impair any of the rights now vested in the Enfield Bridge Company.
It is further claimed, that when the plaintiffs’ charter was granted, rail-roads were unknown -. therefore, it cannot be supposed the legislature intended bridges connected with rail-roads. The fact that rail-roads were then unknown, is denied by the plaintiffs. Without going minutely into their history, we believe, that for all practical purposes of public travel, rail-roads were, in the year 1798, unknown, in this country at least. But whether the fact is so or not, it can make no difference. Is a grant of this kind, which yve have adjudged to be a contract, to be set aside, because an advantage not contemplated at the time, may result from its violation ? Js.there any implied jmnditiorj, in such ¡j^grant, that upon gome new improvement being made, the grant should be void? How would such a claim be treated in other cases of great public improvement ? Suppose the city oí New-York had leased Fulton ferry for a term of years, when no boats were known but those which were moved by the hand and wind, or tide ; after the introduction of steam-boats, could they have leased the ferry to the persons, who would navigate it by steam ? Or could the legislature do this, if they had granted the ferry ? We know of no principle, by which this case can be distinguished from that.
But it is asked, afe the public thus to be deprived of all great improvements ? If it come to this, that public faith is to be violated, or the benefit of such improvements lost, we. [59]*59say banish the improvement ! The community will profit more, by preserving; public faith, than they will gain by violation ; although tor a time, it may seem otherwise. But we do not believe, that either course need be taken. We think there is a conservative principle, by which the improve-menf may be had, and good faith preserved. It is this; private property may be taken fur public use, upon compen-saiioa nmde. This is a great principle recognized by our constitution, when it says, “ private property shall not be taken for public use, without just compensation made therefor.”
That a rail-road is for public use, though granted té a private "company, has been decided, so far as we are informed, by every tribunal where the question has been made, and recognized. by the silent acquiescence of all concerned, in this state. W hy then should not that principle be applied, in the present case ? We have heard of no objection, except that it impairs the obligation of the contract, by which this company are to have the exclusive privilege. And after the decision made by this court, in two recent cases, we certainly should not willingly make a decision, which could be supposed to have that effect. Enfield Toll Bridge Company v. The Connecticut River Company, 7 Conn. R. 30. The Derby Turnpike Company v. Parks, 10 Conn. R. 522. We know there are some respectable opinions on that side — two of the Judges of Massachusetts', iff.Hie Charles River Bridge v. Warren Bridge, 7 Pick. 344. And the opinion of Judge Me Lean, in the same case, in the supreme court of the U. S. 11 Peters 508. It may perhaps be said, that in the case of the Chesapeak and Ohio Canal Company v. Baltimore and Ohio Rail-Road Company, 4 Gill & Johns. 1. there is asimilar opinion. But the facts in that differ so materially from those in this and the other cases alluded to, and the court differed so much in opinion from each other, that little will be added to the weight of any opinion on this point from that case.
But the point was directly decided, by the supreme court of Massachusetts, long after these opinions. Boston Water Power Company v. The Boston and Worcester Rail-Road Corporation, 23 Pick. 380. The same question has been also decided, by the supreme court of New-Hampshire and Vermont, in the same way. Piscataqua’ Bridge Co. v. N. H. Bridge Co. 7 N. H. R. 67. Backus v. Lebanon, 11 N. H. R. [60]*60122. Armington v. Barnet & al. 15 Ver. R. 745. And the court oí appeals m the state oí Virginia seem to have come to the same result. Tuckahoe Canal Co. v. Tuckahoe Rail-Road Co., 11 Leigh 42. 76. And in the case above cited from Peters, Judge Story and Judge Thompson explicitly that if the public exigencies require that the franchise 0f Charles River Bridge should be taken away or impaired, this might lawfully be done, making due compensation to the proprietors. 11 Pet. 638. And to a majority of the court, it appears, this decision is correct.
What are the rights of the plaintiff's ? They are derived from the grant of the legislature, and are what in law is known to be a franchise ; and a franchise is an incorporeal hereditament, known as a species of property, as well as any estate in lands. It is property, which may be bought and sold, which will descend to heirs, and may be devised. Its value is greater or less, according to the privilege granted to the proprietors. The owner of such property may repose, with the same security for its protection, under the wings of the constitution; but we know not why he should expect any greater exemption from public burthen, than the owner of any other estate. It was the intention of those who made that instrument, that the rights of all should be secured, and equally secured. If, as,, we believe, it is a conceded point, that the owners of lands, buildings and all property of this description, must yield up that property for public use, upon compensation, how is it, that property of this kind claims a higher privilege, or is guarded by stronger force ? If any property ought to be peculiarly guarded, it certainly is not that which is merely a matter of dollars and cents, but it should be the homestead, the fireside, the place where the owner has enjoyed his domestic comforts, and where he hopes to spend his declining years; and yet this must be yielded to public exigencies. The one, it is said, is liolden directly fay grant of the legislature, and to take it away, ⅛ impairing the contract. But are not all our lands held under a grant from the legislature, directly or indirectly 1 Was not the property all apportioned out, under legislative supervision'? Take the case of a grant of land made, as many have been, and as in some states they constantly are now made, directly by the state, to an individual; may not this land be [61]*61taken, by the government, for highways, for rail-roads, or any , c J other public purposes? This will not be denied. Is i r¡ -r ? ,, ⅜ t . , „ impairing the contrad i It wiu hardly be claimed. But when the state grants a tract of land, they grant an estate in fee, as much as when an individual grants it; but in both cases, it is subject to the right to retake it for public use, on sation made. The fact is, that such has been the law of na-. tío ns upon this subject, that there is reserved or implied a right in the state of this sort: that is to say, they have the same right to the use of the properly they have granted, that they have to other property, and no more. They have the right of eminent domain; and we know of no principle which should limit tins right to lands, or other real estate.
The right rests upon the principle, that individual interests must be subservient to that of the public, and that they must yield, when public necessities require. This, however, in constitutional governments, is not to be done, but upon compensation. The principle, then, is broad enough to include all kinds of property.
But the argument is based on this, that you are then impair- J ing your own contract, and thus violating the letter of the con- j stitution. Tliisis to assume that there is no implied reservation/ in any contract with the state, of the right of eminent domain, or that it does not apply to cases of this kind. If, as we suppose, it is admitted' in the case of a grant of land, we ask why the same principle does not extend to other grants ? It is said, however, that the constitutional provision, does not extend to a grant of lands; for that is a contract executed.
But it was decided in Fletcher v. Peck, 6 Cranch, 87-137. that a contract executed, was a contract within the meaning ' of the constitution of the United States ; and that case remains, and we trust will remain, unshaken. We cannot see, then, why contracts executed and executing, are not, as it regards this provision, placed, by the supreme court, upon the same ground. If, therefore, it is not a violation of this clause in the constitution, to take land, granted by the state, for public uses, we cannot see how it should be any more a violation, to take other property, even although that properly rests on an unexecuted contract. The doctrine seems to be countenanced by the words, rather than by the spirit, of the constitution.
[62]*62Suppose, for instance, a grant was made of a piece of ⅞⅛⅛ adjoining a stream in fee ; and at a future time, a grant was ma(P °f a ferry over the stream in fee ; and in the progress of time, a bridge was required at that place ; would the pub-lie take the land granted, making compensation, and yet have no Power to take the ferry, upon compensation ? Could me constitution intend to make a distinction so refined ? We cannot believe it. We think the constitution was intended to settle great principles, and to settle them in such a manner as to afford equal protection to all persons and to all property. It did not intend to take from the states a right which seems incident to sovereignty, but to provide against its abuse. It left the right, whatever it was, as it found it; but provided, that it should never be exercised, except upon compensation made; thus securing to the states a power all-important to their safety and comfort, and providing, however, that this should not be exercised at the expense of individuals.
It has been said, that in a case like this, tire law nets upon the contract itself; whereas, when the contract is executed, it operates only upon the interest under it. It is not caw to see how a law taking property acquired under a contract with the state, can be constitutional, and a law preventing the acquisition of property under that contract, can be unconstitutional. It seems, in effect, to say, that it is constitutional to take from a man the fruits of Ids labour, but it is unconstitutional to prevent him from gathering those fruits. In this case, the franchise is not in fact taken, but its value is in some measure impaired ; and we see not why compensation may not be made for this, as well as for any other injury to property. For the purposes of this ease, it is not absolutely necessary to decide the question; because, if the legislature has no right, upon any terms, to grant the privilege which the defendants claim, it would take away entirely this part of the defence.
Again, it is said that the plaintiffs’ charier cannot deprive the defendants of their common law rights, but was only intended to assure the plaintiffs that the General Assembly would grant no liberty to others to build a bridge within the limits.
The defendants claim, and it is not denied, that the place where the rail-road crosses Connecticut river, is above tide [63]*63water : and it is found, that the defendants own the land on , , , . both siaes oí the way. They therefore say, the river is not navigable, and so they have right to erect a bridge on their own premises for their own use. This court have decided, that above tide water, the adjoining proprietors have the right , . 3 n b of fislung ui the stream : (Adams v. Pease, 2 Conn. R. 480.) but it has not been decided, that such proprietors have the right of erecting bridges or ferries, at their pleasure, across the stream. On the contrary, the Chief Justice, in delivering the opinion of the court, says, that the public have a right or easement in such rivers, as common highways, for passing with vessels, boats, or any water craft. The court intend to adopt the common law ; and they say, a more perfect system could not be devised. By the common law, some streams are private, not only in propriety or ownership, but also in use, as little streams and rivers that are not a common passage for the king’s people. Again, there are other rivers, well fresh as stilt, that are of common or public use for the carriage of boats and lighters; and then, whether they are fresh or salt, whether they flow and reflow or not, arc prima facie publici juris, common highways for men or goods, or both, from one inland town to another. Ilarg. L. T. ch. iii. 8. 9. They are, it is said, highways by water; and all things of public safety and convenience, being, in a special maimer, under the king’s care, supervision and protection. Ch. ii. 8.
These principles are adopted in the state of New-York. Palmer v. Mulligan, 3 Caines, 314.; and in Hooker v. Cummings, Spencer, Ch. J., says, the common law of England considers a river in which the tide ebbs and flows, an arm of the sea, and navigable, and devoted to the public use. It also considers other rivers, in which the tide does not ebb and flow, as navigable; but not so far belonging to the public as to divest the owners of the adjoining lands of their exclusive right to fisheries. 20 Johns. II, 100. Were other authorities needed, we might refer to The Canal Appraisers v. The People, 5 Wend. 444. 17 Wend. 594. Commonwealth v. Charlestown, 4 Pick, 180. 188. Bowman's devisees v. Wathen & al. 2 McLean, 377. 382.
Connecticut river, then, is a navigable stream, for certain purposes, above tide water; and it does not follow, therefore, [64]*64Bridge v as seems to be supposed by the defendants, that they have right, at their pleasure, to establish ferries and build bridges, because they own the land on both sides. We have shown, ^at at common law, such streams, being things of common safety and convenience, are under the care of the king; and ⅛ this state, our earliest history will evince, that it has been considered the duty of the public to provide accommodations for the passage of such streams. Ferries and bridges, therefore, have been ordinarily provided and regulated by the leg-» islatnre. Such, too, has been Ihe case in other states. Commonwealth v. Charlestown, 1 Pick, 180. 184. Charles River Warren Bridge, 7 Pick. 515. 9 Wheat. R. 97. And it is a well settled principle of common law, that no man may set up a ferry for all passengers, without prescription time out of mind, or a charter from the king. He may make a ferry for his own use, or the use of his family; but not for the common use of <all the king’s subjects passing that way ; because it doth in consequence tend to a common charge, and is become a thing of public interest and use ; and every ferry ought to be under a public regulation, llarg. L. T. ch. ii. 6. This principle is also recognized, in the case cited from the 20 Johns. R. and in 2 McLean 383. and the judge, in the case last cited, says, “ and for this accommodation of the public, the government is not only authorized, but bound, to make suitable provision.” On this ground, he says, licenses to keep ferries are granted.
If, then, it is the duty of the government to provide ferries and bridges, and regulate the same, it must follow, that an individual, without license, cannot establish a ferry or erect a bridge, to the detriment of one so licensed; and so we find it every where settled. 3 Bla. Com. 219. Fitz. N. B. 184. Ogden v. Gibbons, 4 Johns. Ch. R. 150. 160, 1. The Newburgh and Cochecton Turnpike Road v. Miller & al. 5 Johns. Ch. R. 101. 110. Charles River Bridge v. Warren Bridge, 7 Pick. 515. And if a stream is navigable for any useful purpose, none but the legislature can authorize any interruption of it. 1 Pick. 187.
Will it be said, that this bridge is erected for the accommodation of the defendants only, and nothing is allowed to pass but their own engine and cars. See how this right is restrained in the authorities cited: <! He may make a ferry for [65]*65his own use, or (he use of his family and the man who sets up a ferry without license, mayas well protect himself under the plea that his own boats only pass, as the defendants, that only their own cars pass. The object in both cases, is, as it respects themselves, a matter of profit, and not the accommodation of themselves and their families. While, then, the defendants may accommodate themselves or their families, by a bridge or boat on their own land, if no public injury occur; they have no right to interfere with those whom the public have particularly licensed for this duty, and who, in consequence thereof, are bound, at all times, to give reasonable accommodation to the-public, and who are responsible, if they do not. Harg. L. T. 11, ch. 6, Besides, if the defendants claim this, as matter of their own accommodation, and not a matter of public interest, (hen the charter, by which they claim to take the lands of individuals for their rail-road, without their consent, is invalid, and their grant worthless, as it would be taking private property for private (not for public) use.
Whether, therefore, we consider the defendants’ case as resting upon their chartered rights, or on their claims as riparian proprietors, we come to the same result.
The remaining question is, whether, upon this application, the plaintiffs are entitled to the remedy they seek. The original bill showed, that the defendants were building their bridge, and prayed for an injunction, or other relief. The supplemental bill shows, that the bridge is built, and makes the same prayer. Now, it is said, that the relief sought does not correspond with that prayed for in the bill; for as the bridge is built, the court cannot enjoin against its being built. But it does not seem to the court, that such a construction should be given, as that the defendants should be suffered to take advantage of their own acts, now held to be unlawful, connected with the delays incident to the trial of a cause, to defeat a claim properly commenced. The relief then sought was that adapted to the case; and could the remedy have been then applied, or had the defendants respected the process, with intent to abide its award, the relief would have been precisely what was asked. To say now, that the remedy cannot be had, is to say, that the plaintiffs shall be turned round, by the wrongful act of the defendants, or by a delay [66]*66in the course of legal proceedings for which they cannot be responsible; neither of which is admissible. It seems to us, that the general prayer for relief is peculiarly appropriate to a casé like this.
It is also said, that there are no appreciable damages to the plaintiffs; and therefore, the court will not interfere. The court do not find what the damage is ; nor is it necessary. They say, the bridge of the defendants will have a tendency, in some degree, to divert travel from the plaintiffs’ bridge. This must, of course, impair the value and lessen the profits ; and must occasion damage. What the amount is, it is not for us to say. It is true, that ¿the court find, that this damage is but little more than it would have been, a little above, or a little below, the protected line. That leaves it, to be sure, uncertain what the damage would be. It implies some damage. Such a fact must impair the value of the plaintiffs’ franchise, and diminish their profits. And it is said, that small injuries are as much prohibited as larger ones; and that the least right is as anxiously protected as the greatest ; (per Husmer, Ch. J., 7 Conn. R. 48.) and we do not need to be told, by a jury, that there must of course be some injury to the plaintiffs.
It was also said, that the damage, if any, arises from the better mode of travel, and therefore, furnishes no cause of complaint. But it does not lessen the injury to the plaintiffs, that the defendants, or the public, derive great benefit from it. They may enquire, can this be done at their expense ?
It is said, this is a matter of discretion, and will not be exercised when the injury is not irreparable. But it has been adjudged by this court, that when the right was not doubtful, an injunction would always be granted to secure the enjoyment of a stated privilege, of which the party is in the actual possession ; and it was added, that to restrain a multiplicity of suits, and prevent immediate damage to a statute privilege, is the exercise of a sound discretion. Enfield Toll Bridge Company v. The Connecticut River Company, 7 Conn. R. 50. 51. Hartford Bridge Company v. East-Hartford, 16 Conn. R. 149.
[67]*67■ The result is, that the superior court be advised to grant an injunction. ‘ J ■
In this opinion the other Judges ultimately concurred; though Human, J., at first thought, that the structure of the defend-Hilts was not u a bridge” within the meaning of the plalntiíls5 charter, , “
Decree for plaintiffs.