Sims, J.,
after making the foregoing statement, delivered the following opinion of the court:
[153]*153[1] It will be apparent from the reading of the bill and from reference to the section of the topographic sheet above shown, that the case is not one of an obstruction or disuse threatened to the whole of the Gilmerton cut or canal, but only of an obstruction to the continuous passage of it. It may still be used at both ends, on either side of the obstruction caused by the railroad crossing of the canal. But that obstruction, as is obvious, will be a serious detriment to the navigation aifected and, hence, raises the same legal •question of right in appellants to the use of the canal as if the whole of it were threatened to be obstructed.
It is also true that the bill alleges that the lands of appellants lie on both sides of the Gilmerton canal. Hence, we must infer from the locus, as shown by said topographic sheet, as is contended for by appellees, that some of such lands may lie on the part of Deep creek which is not cut off from deep water by the canal, and, hence, such landowners may still have unobstructed access to deep water for their water craft, notwithstanding the obstruction aforesaid. However, it is apparent from the bill that some of appellants are not so situated. And, moreover, if they were, if they have an existing right to use the Gilmerton canal for the passage of their water craft, it is immaterial if they -do have another access to deep water. Hence, in any aspect of the case, the legal question as to whether the appellants, as owners of lands abutting on the aforesaid canal, have an existing right to the use of it by their water craft is raised by the demurrer.
As correctly stated in the petition of appellants — whether the court erred in entering the decree under review, “depends, in its last analysis, entirely on the question—
“What, if any, rights have (appellants) in the maintenance of the Gilmerton cut portion of the Dismal Swamp canal as a means of navigation from their lands abutting thereon ?”
[154]*154The precise question seems to be a novel one in this State and elsewhere. The general principles involved, however, are elementary, and the authorities to which we shall refer seem to leave room for but one conclusion. But before referring to the authorities, we will consider the distinctive features of the case before us and certain legal results which in principle flow therefrom.
[2] The right claimed by appellants is not a public, .but a private right, and it is a right which at one time unquestionably existed in the appellants as appurtenant to their lands abutting on the said canal. That right was to use the canal unobstructed and free of any charge of toll or tonnage for the passage of “all (appellants’) vessels, boats, lighters and rafts of timber at all times when it can be safe to operate (its) lock or locks,” as is expressly provided in the condition on that subject in the act of Assembly of February 9, 1839, quoted in the bill, which statute enlarged the original franchise of the canal company so as to authorize it to acquire by condemnation the right of way for, and to construct and operate such canal. The right of way itself was not granted by the Commonwealth, but was acquired by the canal company from the private owners of the land by purchase or condemnation proceedings. When such right of way was so acquired, the ownership of it was vested in the canal company in fee simple, as appears from the original charter of the company and the subsequent statute on the subject. 12 Hening’s Stat. at Large, sec. 13, p. 487, and said act of February 9, 1839 (Laws 1839, c. 145). The mere right to exercise the franchise was all that was granted by the Commonwealth. The Commonwealth having no proprietary interests in the premises, it could not grant, and did not undertake to grant, any property interest, but only a franchise to the canal company. San Francisco v. Water Works Co., 48 Cal. 493. Having acquired the ownership of the right of way in fee simple, by [155]*155purchase or condemnation, and having constructed the canal thereon, the canal company was the owner of the whole in fee simple. Thereafter only its right to operate the canal was dependent upon its right to exercise its franchise. Hence, thereafter the condition aforesaid remained imposed only on the right of exercise of the franchise.
[3] It is true, unquestionably, however, that so long as said condition remained imposed on such franchise, just so long the appellants enjoyed the right of navigation aforesaid as incident thereto, and that was a right appurtenant to the lands of the appellants because made so by the statutory condition. Hence, in so far as appellants and their predecessors in title are concerned, and as to them, the right fulfilled all of the requisites of an “affirmative easement” appurtenant to a dominant estate, as defined in the books. Washburn on Easements and Servitudes (4th ed.), pp. 7, 9, 10, 22. And the right does not lack the existence of a tenement as a servient estate. The right, in the case before us is imposed upon a franchise, it is true, but that is a tenement. 2 Minor’s Inst. (3rd ed.) 5. The right under consideration may therefore be regarded as an easement; but it is attendant upon the right of exercise of the franchise aforesaid, as the servient estate; not upon the portion of land of the canal site conveyed by the canal company to the railroad company.
But if regarded as an easement and a property right, still it was such only so long as it existed.
And just here is the turning point in the case. How long did such right exist?
[4] The right in question had its source, as we have seen, in the condition imposed by the statute aforesaid— in a grant from the Commonwealth. But it was not a grant to the appellants or to their predecessors in title, nor a grant to which they were in privity. It was a mere incident to a grant to another. The contract which the grant created [156]*156was solely between the Commonwealth and the canal companies first with the original canal company and subsequently with its successor, the appellee canal company. The right in question, therefore, was not derived by the predecessors in title of the appellants, by grant from the Commonwealth to them, nor under any contract of the Commonwealth made with them.
[5] But it is claimed by appellants that, although there was on the part of the Commonwealth no grant directly to or contract directly with their predecessors in title, the condition aforesaid in the statute was in effect a contract for their benefit, and that such contract was supported in their favor by a valuable consideration, in this: That before the canal was constructed, the lands of appellants, then owned by their predecessors in title, all had access to deep water navigation; that the canal, as proposed to be and as it was constructed, would and did shut off such lands, or at least a part of them, from such navigation; that it was because of this situation that the condition aforesaid was incorporated in said statute; and that the right of use of the canal aforesaid was stipulated in the statute in lieu of said previously existing access to deep water navigation.
We may regard the position taken by appellants as sound as far as it goes.
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Sims, J.,
after making the foregoing statement, delivered the following opinion of the court:
[153]*153[1] It will be apparent from the reading of the bill and from reference to the section of the topographic sheet above shown, that the case is not one of an obstruction or disuse threatened to the whole of the Gilmerton cut or canal, but only of an obstruction to the continuous passage of it. It may still be used at both ends, on either side of the obstruction caused by the railroad crossing of the canal. But that obstruction, as is obvious, will be a serious detriment to the navigation aifected and, hence, raises the same legal •question of right in appellants to the use of the canal as if the whole of it were threatened to be obstructed.
It is also true that the bill alleges that the lands of appellants lie on both sides of the Gilmerton canal. Hence, we must infer from the locus, as shown by said topographic sheet, as is contended for by appellees, that some of such lands may lie on the part of Deep creek which is not cut off from deep water by the canal, and, hence, such landowners may still have unobstructed access to deep water for their water craft, notwithstanding the obstruction aforesaid. However, it is apparent from the bill that some of appellants are not so situated. And, moreover, if they were, if they have an existing right to use the Gilmerton canal for the passage of their water craft, it is immaterial if they -do have another access to deep water. Hence, in any aspect of the case, the legal question as to whether the appellants, as owners of lands abutting on the aforesaid canal, have an existing right to the use of it by their water craft is raised by the demurrer.
As correctly stated in the petition of appellants — whether the court erred in entering the decree under review, “depends, in its last analysis, entirely on the question—
“What, if any, rights have (appellants) in the maintenance of the Gilmerton cut portion of the Dismal Swamp canal as a means of navigation from their lands abutting thereon ?”
[154]*154The precise question seems to be a novel one in this State and elsewhere. The general principles involved, however, are elementary, and the authorities to which we shall refer seem to leave room for but one conclusion. But before referring to the authorities, we will consider the distinctive features of the case before us and certain legal results which in principle flow therefrom.
[2] The right claimed by appellants is not a public, .but a private right, and it is a right which at one time unquestionably existed in the appellants as appurtenant to their lands abutting on the said canal. That right was to use the canal unobstructed and free of any charge of toll or tonnage for the passage of “all (appellants’) vessels, boats, lighters and rafts of timber at all times when it can be safe to operate (its) lock or locks,” as is expressly provided in the condition on that subject in the act of Assembly of February 9, 1839, quoted in the bill, which statute enlarged the original franchise of the canal company so as to authorize it to acquire by condemnation the right of way for, and to construct and operate such canal. The right of way itself was not granted by the Commonwealth, but was acquired by the canal company from the private owners of the land by purchase or condemnation proceedings. When such right of way was so acquired, the ownership of it was vested in the canal company in fee simple, as appears from the original charter of the company and the subsequent statute on the subject. 12 Hening’s Stat. at Large, sec. 13, p. 487, and said act of February 9, 1839 (Laws 1839, c. 145). The mere right to exercise the franchise was all that was granted by the Commonwealth. The Commonwealth having no proprietary interests in the premises, it could not grant, and did not undertake to grant, any property interest, but only a franchise to the canal company. San Francisco v. Water Works Co., 48 Cal. 493. Having acquired the ownership of the right of way in fee simple, by [155]*155purchase or condemnation, and having constructed the canal thereon, the canal company was the owner of the whole in fee simple. Thereafter only its right to operate the canal was dependent upon its right to exercise its franchise. Hence, thereafter the condition aforesaid remained imposed only on the right of exercise of the franchise.
[3] It is true, unquestionably, however, that so long as said condition remained imposed on such franchise, just so long the appellants enjoyed the right of navigation aforesaid as incident thereto, and that was a right appurtenant to the lands of the appellants because made so by the statutory condition. Hence, in so far as appellants and their predecessors in title are concerned, and as to them, the right fulfilled all of the requisites of an “affirmative easement” appurtenant to a dominant estate, as defined in the books. Washburn on Easements and Servitudes (4th ed.), pp. 7, 9, 10, 22. And the right does not lack the existence of a tenement as a servient estate. The right, in the case before us is imposed upon a franchise, it is true, but that is a tenement. 2 Minor’s Inst. (3rd ed.) 5. The right under consideration may therefore be regarded as an easement; but it is attendant upon the right of exercise of the franchise aforesaid, as the servient estate; not upon the portion of land of the canal site conveyed by the canal company to the railroad company.
But if regarded as an easement and a property right, still it was such only so long as it existed.
And just here is the turning point in the case. How long did such right exist?
[4] The right in question had its source, as we have seen, in the condition imposed by the statute aforesaid— in a grant from the Commonwealth. But it was not a grant to the appellants or to their predecessors in title, nor a grant to which they were in privity. It was a mere incident to a grant to another. The contract which the grant created [156]*156was solely between the Commonwealth and the canal companies first with the original canal company and subsequently with its successor, the appellee canal company. The right in question, therefore, was not derived by the predecessors in title of the appellants, by grant from the Commonwealth to them, nor under any contract of the Commonwealth made with them.
[5] But it is claimed by appellants that, although there was on the part of the Commonwealth no grant directly to or contract directly with their predecessors in title, the condition aforesaid in the statute was in effect a contract for their benefit, and that such contract was supported in their favor by a valuable consideration, in this: That before the canal was constructed, the lands of appellants, then owned by their predecessors in title, all had access to deep water navigation; that the canal, as proposed to be and as it was constructed, would and did shut off such lands, or at least a part of them, from such navigation; that it was because of this situation that the condition aforesaid was incorporated in said statute; and that the right of use of the canal aforesaid was stipulated in the statute in lieu of said previously existing access to deep water navigation.
We may regard the position taken by appellants as sound as far as it goes. But the question would still remain— bow long does such condition stipulate that such right of use of the canal shall continue to exist? Does it bind the canal company and its successors to continue to exercise the canal franchise perpetually, so that the canal must continue for all times to furnish a means of navigation to and from the lands of appellants abutting thereon? Does it prohibit the abandonment of the exercise of such franchise in whole, or in part, if attended with such result, although the abandonment may be with the consent of the Commonwealth?
The Commonwealth, as aforesaid granted to the canal [157]*157company merely the franchise aforesaid. It left the canal company to acquire the title to the land for the canal by purchase or condemnation proceedings under the statute, as aforesaid. It is true that it may have cost the canal company less to acquire the land for the canal from the landowners, by reason of the fact that the statute contained the condition aforesaid; but that did not make such condition a contract provision for the perpetual operation of the canal for the benefit of such landowners. It merely provided, in effect, that if in the exercise of the franchise the canal company acquired the- right of way and constructed the canal, then, so long as it should operate it under its franchise, the landowners, shut off from deep water navigation by the canal would have the right of use of it, as aforesaid. This contemplated future statm in the premises doubtless affected the quantum of damages which such landowners may have obtained for their land taken for the canal and for injury to the residue of any tract or tracts of land of which a part only was taken for such purpose. But that was the ultimate extent of the effect to which the imposition of said condition could have gone. That was not a contract for the perpetual operation of the canal, but a stipulation merely affecting the damages to such landowners during such period as the canal might be operated. And since, as we shall presently see, it is well settled by th« authorities that a grantee of a franchise may cease to exercise it, in whole or in part, at any time, with the consent of the Commonwealth, in legal contemplation it must be regarded as having been in the minds of the parties at the time of the acquisition of the right of way for the canal, by purchase or condemnation, that the canal might not be perpetually operated; in which event, the site of the canal would not revert to its former owners, but would belong to the canal company or to its successors or assigns in fee, and so much of the remaining lands of such former owners of the [158]*158canal site as was shut off by the canal construction from the deep water navigation aforesaid would remain so shut off thereafter. And the same is true as to the result of a partial cessation of the perpetual operation of the canal, such as has occurred in the case before us. Therefore, as must be inferred, in the absence of evidence to the contrary, such contingences must have entered into the ascertainment of the compensation paid to the landowners affected when the right of way for the canal was originally acquired by the canal company, and, as we must assume, in the absence of evidence to the contrary, were taken care of by such compensation then paid.
That is to say, the stipulation aforesaid in the statute must be construed as in substance and effect a stipulation merely that such right of use of the canal should continue as long as the canal should be operated under the franchise! aforesaid; but that should such operation cease in whole or in part, because the Commonwealth should consent to such cessation of operation, the right aforesaid would thereupon terminate to the extent that such right was thereby affected. And moreover, in the light of such construction of the stipulation aforesaid, any consideration furnished therefor in a diminution of damages such as above indicated, must be considered as having been intended to cover only such period as the canal might be operated under the franchise aforesaid and would in fact cover only such period. Hence, if said statutory condition be regarded as a contract for the benefit of appellants, based on valuable consideration, it is inoperative as a contract beyond the period last referred to, both because of its terms and for lack of consideration to support it. And it would be equally inoperative as a gift beyond such period, because it would not be an executed, but merely an executory, gift as to such future period.
The conclusion necessarily follows that the right afore[159]*159said existed no longer than the will of the Commonwealth required it to exist, and that it terminated, to the extent the right was thereby affected, when the canal company, with the consent of the Commonwealth, ceased to operate that portion of the canal which was sold and conveyed to the railway company.
[6] Since the appellants have acquired no right under said statutory condition which survives the cessation of the operation of the canal, they stand, therefore, precisely in the same position as would any owners of land on a canal owned and operated by the State or under State authority, who have used the canal for the benefit of their abutting lands without any contract right to continue to do so, and merely by acquiescence of the State or the operator of the canal.
As held by abundant authority, such a right of use of the canal terminates when and to the extent that the operation of the canal ceases with the assent of the Commonwealth. Vought v. C., H. V. & A. R. R. Co., 58 Ohio St. 123, 50 N. E. 442, S. C., 176 U. S. 481, 44 Law Ed. 554, 20 Sup. Ct. 398; Walsh v. C., H. V. & A. R. R. Co., 176 U. S. 469, 44 Law Ed. 549, 20 Sup. Ct. 393, and cases therein cited on the point; Chase v. Sutton Mfg. Co., 4 Cush. (Mass.) 152; Fredericks v. Penn. Canal Co., 109 Pa. 50, 2 Atl. 48; Saylor v. Penn. Canal Co., 183 Pa. 167, 38 Atl. 598, 63 Am. St. Rep. 749.
As held in substance by these authorities, the question is purely one between the Commonwealth and the grantee of the canal franchise. If the Commonwealth permits the holder of the franchise to abandon the canal in whole or in part, individuals who have enjoyed its use without any contract right to continue to do so, have no right to corni-plain. We consider such holding to be correct and are of opinion that there is nothing in the case before us to take it from under the control of the legal principles involved in such decisions.
[160]*160The authorities cited and relied on by appellants of Ladd v. City of Boston, 151 Mass. 585, 24 N. E. 858, 21 Am. St. Rep. 481; 1 Lewis on Em. Domain, sec. 142; Johnston v. Old Colony R. R. Co., 18 R. I. 642, 29 Atl. 594, 49 Am. St. Rep. 800; Allen v. Detroit, 167 Mich. 464, 133 N. W. 317, 36 L. R. A. (N. S.) 890; Flynn v. New York, etc., Co., 218 N. Y. 140, 112 N. E. 913, Ann. Cas. 1918 B, 588, involve negative equitable easements derived by grant or other executed contract. Washburn on Easements and Servitudes (4th ed.), p. 112, et seq. Such rights and all other property rights acquired by grant or prescription, so long as they would otherwise exist, are protected from legislative abrogation by our State Constitution and “cannot be destroyed or impaired by public works without compensation.” 1 Lewis on Em. Domain, supra (sec. 142). But, as aforesaid, the rights of appellants, whatever they may once have been, terminated, in accordance with the provisions of their source of title thereto, when (and to the extent they were thereby affected) the canal company, with the consent of the Commonwealth, abandoned the operation of that portion of the canal which it sold and conveyed to the railroad company.
We were requested in the oral argument before us for appellants to enter in our decree, in the event it shoulcj be adverse to the appellants, a provision to the effect that our decision is without prejudice to any remedy which the appellants may have at law, if any, against the appellees or any of them. We will grant the request; but we feel that we should say in this connection that we do not wish to be understood as intimating thereby that we are of opinion that any such remedy at law exists. We should also here say, as appears, indeed, from what we have said above, that no such remedy at law could exist because of the deprivation of the appellants of the right of use of the canal which has been above considered, unless a different case [161]*161were presented on the facts from that presented by the bill in the cause before us.
Accordingly, and for the foregoing reasons, the decree under review will be affirmed, but without prejudice to any remedy which the appellants may have at law, if any, against the appellees or any of them.
Affirmed.