The Chancellor.
The question presented for consideration in this case is one of very great consequence to the complainants, if their apprehensions of injury to their canal [327]*327from the making of the rail road upon its margin are well founded. And it is also of vast importance to the New-York and Erie Rail Road Company, if its officers and agents are right in their estimate of the benefit it will derive from the adoption of the contemplated route for its road, instead of the more northern location through the interior of the county of Sullivan. If it is impossible to construct the road by the Delaware route without destroying the navigation of the canal and the valuable interests which have grown up in connection with that artificial line of internal communication, the defendants certainly cannot be permitted to proceed and make their road there; at least until provision has been made by law to compensate the owners of the canal for the value of their property which will be thus destroyed. On the contrary, if the road can be thus constructed without any material detriment to the rights or the property of the complainants, it appears to be a matter of vital importance to the interests of the rail road company, that such company should be permitted to construct their road in the valley of the Delaware; even if the difference in the cost of the road, and of its value when completed, would be but a tenth of what they estimate the difference to be between a rail road running through the valley of the Delaware, and one constructed on the route as originally surveyed, from the Collicoon creek through the interior of Sullivan county.
There can be no doubt of the right of this court to interfere in a case of this kind, where the consequence of a refusal would be to permit the defendants to do a material and irreparable injury to the complainants’ property. But if the defendants are authorized by law to construct their road on this route, a mere temporary injury, which could be compensated for in damages, would not justify this court in stopping the progress of a great public work, although that work is nominally made by a joint stock company. The papers before me, however, show such a probability of injury by the construction of the rail road upon the line of the canal, that I should not hesitate to grant an injunction [328]*328at once, if the complainants had succeeded in showing that the rail road company had already located its road upon ^le more northerly route, so as to preclude them from changing such location without the consent of the legislature. (See 1 Nicholl & Hare’s Railway cases, 135.) But I am satisfied that the complainants have failed in establishing the fact that the road had been legally located upon the northerly route.
By the fourth section of the original act of incorporation of the New York and Erie Rail Road Company, (Laws of 1832, p. 404,) the directors, after their examinations and surveys had been completed, were to select, and by certificates under their hands and seals, to designate the line, course, or way, which they should deem most advantageous for their rail road, and to file one of such certificates in the office of the register of the city of New-York, and one in the clerk’s office of each of the counties through which the. rail road should pass ; which line, as thus designated, was to be deemed the line on which the corporation should construct its road. Under that act it was probably necessary for the company to designate the whole line of the road from the city of New-York to Lake Erie, and to file the certificates thereof in the proper offices before they proceeded to construct any part of the road; and before they could acquire the legal title to lands, for the scite of the road, by purchase. Certainly it would have been necessary for them to do so before they could have been authorized to enter upon the lands of individuals, without their consent, for the purpose of making the road over the same, or to apply to the vice chancellor for the appointment of commissioners to appraise the damages of the owners of such lands. And when the line of the road had been thus designated by the directors, they would not have been authorized to change the route of the same without the authority of a subsequent act of the legislature, if such change interfered with the rights of any individual, or corporation, or the interests of the public. It is very evident, however, that no such designation of the whole line of the [329]*329road was ever made. For by the amendatory act of May, 1835, the company are authorized to commence their road at any point in the route designated therefor, and to file certificates from time to time, designating sections of the line, course, or way of such road, in the offices of the clerks of the respective counties through which the same shall pass, as they proceed in the location thereof. (Laws of 1835, p. 287.) Under the last mentioned act the certificates produced by the complainants on the hearing of this application, have been made and filed. And if the counsel for the Hudson and Delaware Canal Company are right, in supposing that such certificates embrace any part of the original route, as surveyed from the Collicoon creek eastwardly through the interior of the county of Sullivan, which cannot be connected with the proposed route along the Delaware section of the canal, the rail road company is concluded by that location; and it cannot now be changed without the authority of a new act of the legislature.
Upon examining these certificates, however, I cannot see why the route of the road designated therein may not readily be connected with the proposed route by the side of the canal. Four of the certificates designate portions of the line of the road, in the town of Cochecton, which may be west of the diverging point of the two routes, at the Collicoon creek j as it appears by the map that the town of Cochecton lies on both sides of that creek. And there is nothing in the description of the route in either of those certificates, or in the certificate of the location of a section in the town of Liberty, from which I can discover that any of the sections thus located are eastwardly of that diverging point. The sixth certificate is of the location of a section of the road commencing in the town of Mount Hope in the county of Orange, near the corner of a meadow occupied by a Mr. Loomis, and running northwesterly a few thousand feet. But whether this section is east of ‘the diverging point of the two routes, near Port Jervis, between that point and the town of Goshen, or is to the westward of that point, does not appear from any thing contained in [330]*330the certificate of location. In addition to this, I have been furnished with an affidavit since the hearing of this motion, made by the chief engineer of the rail road company, in which he states that the locations in these certificates are not inconsistent with the adoption either of the northern or the southern route ; the five first being locations of sections of the road northwest of the Collicoon creek, and the sixth being the location of a section at the Deer-park gap of the Shawangunck mountain, through which each and every route of the road hitherto designated must necessarily pass, and including the diverging point of the two routes near Port Jervis. He also states that he does not know or believe that any certificates have been filed which conflict or are inconsistent with the adoption of the route along the canal. Whether this affidavit has been placed before me irregularly, or by the consent of both parties, I do not stop to inquire.
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The Chancellor.
The question presented for consideration in this case is one of very great consequence to the complainants, if their apprehensions of injury to their canal [327]*327from the making of the rail road upon its margin are well founded. And it is also of vast importance to the New-York and Erie Rail Road Company, if its officers and agents are right in their estimate of the benefit it will derive from the adoption of the contemplated route for its road, instead of the more northern location through the interior of the county of Sullivan. If it is impossible to construct the road by the Delaware route without destroying the navigation of the canal and the valuable interests which have grown up in connection with that artificial line of internal communication, the defendants certainly cannot be permitted to proceed and make their road there; at least until provision has been made by law to compensate the owners of the canal for the value of their property which will be thus destroyed. On the contrary, if the road can be thus constructed without any material detriment to the rights or the property of the complainants, it appears to be a matter of vital importance to the interests of the rail road company, that such company should be permitted to construct their road in the valley of the Delaware; even if the difference in the cost of the road, and of its value when completed, would be but a tenth of what they estimate the difference to be between a rail road running through the valley of the Delaware, and one constructed on the route as originally surveyed, from the Collicoon creek through the interior of Sullivan county.
There can be no doubt of the right of this court to interfere in a case of this kind, where the consequence of a refusal would be to permit the defendants to do a material and irreparable injury to the complainants’ property. But if the defendants are authorized by law to construct their road on this route, a mere temporary injury, which could be compensated for in damages, would not justify this court in stopping the progress of a great public work, although that work is nominally made by a joint stock company. The papers before me, however, show such a probability of injury by the construction of the rail road upon the line of the canal, that I should not hesitate to grant an injunction [328]*328at once, if the complainants had succeeded in showing that the rail road company had already located its road upon ^le more northerly route, so as to preclude them from changing such location without the consent of the legislature. (See 1 Nicholl & Hare’s Railway cases, 135.) But I am satisfied that the complainants have failed in establishing the fact that the road had been legally located upon the northerly route.
By the fourth section of the original act of incorporation of the New York and Erie Rail Road Company, (Laws of 1832, p. 404,) the directors, after their examinations and surveys had been completed, were to select, and by certificates under their hands and seals, to designate the line, course, or way, which they should deem most advantageous for their rail road, and to file one of such certificates in the office of the register of the city of New-York, and one in the clerk’s office of each of the counties through which the. rail road should pass ; which line, as thus designated, was to be deemed the line on which the corporation should construct its road. Under that act it was probably necessary for the company to designate the whole line of the road from the city of New-York to Lake Erie, and to file the certificates thereof in the proper offices before they proceeded to construct any part of the road; and before they could acquire the legal title to lands, for the scite of the road, by purchase. Certainly it would have been necessary for them to do so before they could have been authorized to enter upon the lands of individuals, without their consent, for the purpose of making the road over the same, or to apply to the vice chancellor for the appointment of commissioners to appraise the damages of the owners of such lands. And when the line of the road had been thus designated by the directors, they would not have been authorized to change the route of the same without the authority of a subsequent act of the legislature, if such change interfered with the rights of any individual, or corporation, or the interests of the public. It is very evident, however, that no such designation of the whole line of the [329]*329road was ever made. For by the amendatory act of May, 1835, the company are authorized to commence their road at any point in the route designated therefor, and to file certificates from time to time, designating sections of the line, course, or way of such road, in the offices of the clerks of the respective counties through which the same shall pass, as they proceed in the location thereof. (Laws of 1835, p. 287.) Under the last mentioned act the certificates produced by the complainants on the hearing of this application, have been made and filed. And if the counsel for the Hudson and Delaware Canal Company are right, in supposing that such certificates embrace any part of the original route, as surveyed from the Collicoon creek eastwardly through the interior of the county of Sullivan, which cannot be connected with the proposed route along the Delaware section of the canal, the rail road company is concluded by that location; and it cannot now be changed without the authority of a new act of the legislature.
Upon examining these certificates, however, I cannot see why the route of the road designated therein may not readily be connected with the proposed route by the side of the canal. Four of the certificates designate portions of the line of the road, in the town of Cochecton, which may be west of the diverging point of the two routes, at the Collicoon creek j as it appears by the map that the town of Cochecton lies on both sides of that creek. And there is nothing in the description of the route in either of those certificates, or in the certificate of the location of a section in the town of Liberty, from which I can discover that any of the sections thus located are eastwardly of that diverging point. The sixth certificate is of the location of a section of the road commencing in the town of Mount Hope in the county of Orange, near the corner of a meadow occupied by a Mr. Loomis, and running northwesterly a few thousand feet. But whether this section is east of ‘the diverging point of the two routes, near Port Jervis, between that point and the town of Goshen, or is to the westward of that point, does not appear from any thing contained in [330]*330the certificate of location. In addition to this, I have been furnished with an affidavit since the hearing of this motion, made by the chief engineer of the rail road company, in which he states that the locations in these certificates are not inconsistent with the adoption either of the northern or the southern route ; the five first being locations of sections of the road northwest of the Collicoon creek, and the sixth being the location of a section at the Deer-park gap of the Shawangunck mountain, through which each and every route of the road hitherto designated must necessarily pass, and including the diverging point of the two routes near Port Jervis. He also states that he does not know or believe that any certificates have been filed which conflict or are inconsistent with the adoption of the route along the canal. Whether this affidavit has been placed before me irregularly, or by the consent of both parties, I do not stop to inquire. For the allegation in the bill that the road has been located on the northern route, through the interior of the county of Sullivan, is denied in that part of the answer m which the same engineer swears that it has not been formally located on that route, so as to deprive the company of the power to designate a different route for that part of the road. And the certificates of location, unexplained, do not conflict with that denial in the answer.
It is not denied that the directors of the rail road company, in their report published in February last, represented the whole line of the road from the Collicoon creek easterly t<? Middletown, a distance of sixty-five miles, as being under contract. I presume, however, if that statement was technically true, that the contracts for the making of the road upon that route were merely nominal, and were entered into for the purpose of producing an effect upon the public mind in reference to the supposed progress of the road. But even if such contracts were entered into bona fide, and with the intention of having the road constructed upon that route under such contracts, it would not be sufficient to conclude the company, and to deprive it of the power to change the route, with the assent of the con[331]*331tractors, if the directors had not actually designated and located the line of the road, or any part of it, upon that route, in the manner prescribed by the act of incorporation and the subsequent act amending the same.
The principles upon which this court interferes by injunction, in cases of this kind, are stated in the case of The Mohawk Bridge Company v. The Utica and Schenectady Rail Road Company, (6 Paige's Rep. 554.) And, for the reasons there stated, it is no objection to the location of this rail road upon the route of the canal, that it cannot be traversed by locomotives without frightening the horses on the towing path, so as to destroy the navigation of the canal. After the road is completed, if the use of locomotives shall be found to have that effect, an injunction may be applied for to restrain such use, and to compel the rail road company to draw their trains over this part of the road by horse power only. The real question to be taken into consideration at this time, therefore, is whether the mere construction of the rail road, upon the line designated in the surveys annexed to the answer of the defendants, will be so imminently dangerous to the canal and the navigation thereof as to render it improper for the defendants to attempt such construction.
The surveys of the defendants certainly show that it must be exceedingly difficult to build a rail road on that route without serious injury to the navigation of the canal. For it appears that the centre line of the rail way is very frequently within fifteen or twenty feet of the waters of the canal, and that at some points it is within ten or twelve feet. And the situation of the adjoining cliffs, for miles, is such that it is probably impossible to construct the road at a greater distance from the canal on the berme side. The difficulty of constructing that part of the road which is to be made between the canal and the river, without .materially injuring the canal, and the towing path which lies on that side of it for the entire distance of the Delaware section, must be equally great. Upon the papers before me, however, I cannot say it is impossible, with proper care and [332]*332precaution, to construct and maintain the rail road on the ^ne designated in the surveys without material injury to *he rights and property of the complainants, or putting them in imminent hazard. The application for an injunction must therefore, for the present, be denied.
The value of the interests at stake, however, are so great, and the case is one of so much doubt, that if the complainants wish for an issue to settle the question whether the rail road can be thus constructed and maintained without material injury to the canal, or to the navigation thereof, or imminently endangering their rights in this respect, they may have such an issue, to be tried at the circuit in the county of Orange. And if such issue is found in favor of the complainants, an injunction may issue as prayed for in the bill, upon filing the postea and the clerk’s certificate of the trial in the office of the assistant register, without any further application to this court. The question of costs upon this motion, and of the issue, if the complainants elect to have one in this stage of the suit, are to abide the further order of the court.