Hinman, J.
The plaintiffs are a corporation under a charter granted by the general assembly, and the defendants are also a corporation, organized under the provisions of the statute in relation to joint stock corporations. Both companies are engaged in the business of making and supplying the city and town of Norwich and the inhabitants thereof with gas. The plaintiffs, under a grant or license to Frederick W. Treadway, the interest in which they have acquired by assignment from Treadway, and under their original act of incorporation and an amendment thereto, passed in 1855, claim the exclusive right to use the streets and public grounds of the city for the purpose of laying down gas-pipes and erecting gas-posts and burners therein.
The court of common council of the city of Norwich, on the 4th of August, 1851, passed a resolution which purports to grant to Treadway and his heirs and assigns the right to lay gas-pipes and erect gas-posts, &c., in the streets of the city, and it declares that the privileges thereby granted shall continue and be in full force, and may be enjoyed by said Treadway, and his assigns, for the period of fifteen years; and that during that time no other person, persons, or eorpotion shall, by the consent of the court of common council, lay gas-pipes in said streets.
The original act of incorporation gives the plaintiffs, among other things, authority to purchase of said Treadway his gas-works and gas-business, in the city of Norwich, with all the pipes, machinery, land and buildings connected therewith, and to manufacture and sell gas, and to furnish such quantities thereof as may be required, for lighting the streets and buildings, and for other purposes. It also gives them the right to lay down their gas-pipes, and to erect gas-posts, burners and reflectors in the streets and public grounds of [30]*30the city and town of Norwich, and to do all things necessary to light the said city and town of Norwich, and the stores, dwellings, and other places situated therein; and by the amendment to the charter, it is declared that this right is, and is hereby declared to be exclusive, as against any and all corporations, except such persons or corporations as may thereafter be invested by the general assembly of the state with power to use said streets and public grounds for the same purpose. The amendment also provides, that it shall not be construed to prevent any person or corporation from making gas on their own premises; and that the price of gas, manufactured by the plaintiffs, shall not exceed four dollars per thousand cubic feet.
The defendants have obtained no grant or authority from the general assembly to lay their gas-pipes in the streets or public places of the city or town; but, on their application to the court of common council of the city, that body, on the 26th of March, 1855, without any notice to the plaintiffs, and without revoking, or otherwise noticing its former grant to the plaintiffs, granted the defendants the privilege of laying their gas-pipes &c., in the streets and public places of the city, on certain terms, upon which no question arises.
Upon these facts the question is, whether the plaintiffs have such an exclusive right to the use of the streets and public places in the city of Norwich, for the purpose of laying gas-pipes, and distributing gas therein, as to be entitled to an injunction against the defendants, who are engaged in the same business, and are using the streets for the same purpose.
In the determination of this question, the court will not undertake to define the rights or powers of cities, or other municipal corporations, or of individuals, to make use of the public streets, for the purpose of laying gas-pipes therein, or for other similar purposes, any further than it may become necessary, in order to determine the questions which are involved in the case. The right of the plaintiffs to an injunction, does not depend upon the question whether the defendants have the right to use the streets in the manner [31]*31they are using them, in order to distribute their gas; but upon whether the plaintiffs have such an exclusive right to use them, that they can call upon the court to protect them in this right, by injunction. The plaintiffs’ case must stand upon the strength of their own title, and not upon any defect in that of the defendants; and it is obvious that if the plaintiffs have the exclusive right which they claim, they must have acquired it, either as the assignees of Treadway, under the resolution of the court of common council, of the 4th of August, 1851; or under the original charter to them, granted in 1854; or under the amendment to the charter, passed in 1855.
The plaintiffs however are the equitable owners of what is called the Frink lot, and if they have no exclusive right to the use of the streets, under any of these grants, then there will remain only the question, whether they are entitled to enjoin the defendants against laying their pipes in the street, in front of this lot.
1. Have the plaintiffs an exclusive right to the use of the streets as the assignees of Treadway ?
The resolution under which this right is claimed, purports to grant to Treadway and his assigns, for the period of fifteen years, the right to lay gas-pipes in the streets; and it declares that no other person or corporation shall, by consent of the common council, lay gas-pipes in said streets during that time. But the city does not own the streets. They are public highways, like any of the ordinary roads in the state; and although, by the city charter, they may be subject to certain regulations respecting police, side-walks, drainage, and repairs, yet the city, as such, has no interest in the soil. This belongs to the adjoining proprietors, or to other individuals, as in the case of other highways. Nicholson v. N. H. & N Y. R. R. Co., 22 Conn. R., 74. And the right of way over them, being public to all who may have occasion to use them, and the only power of the city over them being given by their charter in order to regulate such use, it seems clear that the city can make no grant which shall convey to the grantee any interest in them, which can, [32]*32in any proper sense, be deemed property. Besides, if the resolution of the court of common council be viewed in the light of a grant of an interest in the soil, it should have been perfected by a deed. No title, as such, can be transferred by a mere vote of a corporation, which will enable any one to hold any permanent interest in real estate.
But if the whole effect of the resolution be merely to license Treadway and his assigns to use the streets, so as to protect them from a prosecution for a public nuisance for digging them up in order to lay down their pipes, it is obvious that it could only operate to protect themselves; and would give them no title by which they would be authorized to restrain the defendants from similar acts, provided those acts did not interfere with the works of the plaintiffs. We think, therefore, the plaintiffs can derive no aid from this act of the authorities of Norwich, in this application.
2. If no exclusive right to the use of the streets was acquired under the resolution of the court of common council, the next question is, whether any such right was acquired, under the plaintiffs’ original charter, either by itself alone, or in connexion with their assignment from Treadway?
The only part of the original charter which can have any bearing upon this question, is the second section.
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Hinman, J.
The plaintiffs are a corporation under a charter granted by the general assembly, and the defendants are also a corporation, organized under the provisions of the statute in relation to joint stock corporations. Both companies are engaged in the business of making and supplying the city and town of Norwich and the inhabitants thereof with gas. The plaintiffs, under a grant or license to Frederick W. Treadway, the interest in which they have acquired by assignment from Treadway, and under their original act of incorporation and an amendment thereto, passed in 1855, claim the exclusive right to use the streets and public grounds of the city for the purpose of laying down gas-pipes and erecting gas-posts and burners therein.
The court of common council of the city of Norwich, on the 4th of August, 1851, passed a resolution which purports to grant to Treadway and his heirs and assigns the right to lay gas-pipes and erect gas-posts, &c., in the streets of the city, and it declares that the privileges thereby granted shall continue and be in full force, and may be enjoyed by said Treadway, and his assigns, for the period of fifteen years; and that during that time no other person, persons, or eorpotion shall, by the consent of the court of common council, lay gas-pipes in said streets.
The original act of incorporation gives the plaintiffs, among other things, authority to purchase of said Treadway his gas-works and gas-business, in the city of Norwich, with all the pipes, machinery, land and buildings connected therewith, and to manufacture and sell gas, and to furnish such quantities thereof as may be required, for lighting the streets and buildings, and for other purposes. It also gives them the right to lay down their gas-pipes, and to erect gas-posts, burners and reflectors in the streets and public grounds of [30]*30the city and town of Norwich, and to do all things necessary to light the said city and town of Norwich, and the stores, dwellings, and other places situated therein; and by the amendment to the charter, it is declared that this right is, and is hereby declared to be exclusive, as against any and all corporations, except such persons or corporations as may thereafter be invested by the general assembly of the state with power to use said streets and public grounds for the same purpose. The amendment also provides, that it shall not be construed to prevent any person or corporation from making gas on their own premises; and that the price of gas, manufactured by the plaintiffs, shall not exceed four dollars per thousand cubic feet.
The defendants have obtained no grant or authority from the general assembly to lay their gas-pipes in the streets or public places of the city or town; but, on their application to the court of common council of the city, that body, on the 26th of March, 1855, without any notice to the plaintiffs, and without revoking, or otherwise noticing its former grant to the plaintiffs, granted the defendants the privilege of laying their gas-pipes &c., in the streets and public places of the city, on certain terms, upon which no question arises.
Upon these facts the question is, whether the plaintiffs have such an exclusive right to the use of the streets and public places in the city of Norwich, for the purpose of laying gas-pipes, and distributing gas therein, as to be entitled to an injunction against the defendants, who are engaged in the same business, and are using the streets for the same purpose.
In the determination of this question, the court will not undertake to define the rights or powers of cities, or other municipal corporations, or of individuals, to make use of the public streets, for the purpose of laying gas-pipes therein, or for other similar purposes, any further than it may become necessary, in order to determine the questions which are involved in the case. The right of the plaintiffs to an injunction, does not depend upon the question whether the defendants have the right to use the streets in the manner [31]*31they are using them, in order to distribute their gas; but upon whether the plaintiffs have such an exclusive right to use them, that they can call upon the court to protect them in this right, by injunction. The plaintiffs’ case must stand upon the strength of their own title, and not upon any defect in that of the defendants; and it is obvious that if the plaintiffs have the exclusive right which they claim, they must have acquired it, either as the assignees of Treadway, under the resolution of the court of common council, of the 4th of August, 1851; or under the original charter to them, granted in 1854; or under the amendment to the charter, passed in 1855.
The plaintiffs however are the equitable owners of what is called the Frink lot, and if they have no exclusive right to the use of the streets, under any of these grants, then there will remain only the question, whether they are entitled to enjoin the defendants against laying their pipes in the street, in front of this lot.
1. Have the plaintiffs an exclusive right to the use of the streets as the assignees of Treadway ?
The resolution under which this right is claimed, purports to grant to Treadway and his assigns, for the period of fifteen years, the right to lay gas-pipes in the streets; and it declares that no other person or corporation shall, by consent of the common council, lay gas-pipes in said streets during that time. But the city does not own the streets. They are public highways, like any of the ordinary roads in the state; and although, by the city charter, they may be subject to certain regulations respecting police, side-walks, drainage, and repairs, yet the city, as such, has no interest in the soil. This belongs to the adjoining proprietors, or to other individuals, as in the case of other highways. Nicholson v. N. H. & N Y. R. R. Co., 22 Conn. R., 74. And the right of way over them, being public to all who may have occasion to use them, and the only power of the city over them being given by their charter in order to regulate such use, it seems clear that the city can make no grant which shall convey to the grantee any interest in them, which can, [32]*32in any proper sense, be deemed property. Besides, if the resolution of the court of common council be viewed in the light of a grant of an interest in the soil, it should have been perfected by a deed. No title, as such, can be transferred by a mere vote of a corporation, which will enable any one to hold any permanent interest in real estate.
But if the whole effect of the resolution be merely to license Treadway and his assigns to use the streets, so as to protect them from a prosecution for a public nuisance for digging them up in order to lay down their pipes, it is obvious that it could only operate to protect themselves; and would give them no title by which they would be authorized to restrain the defendants from similar acts, provided those acts did not interfere with the works of the plaintiffs. We think, therefore, the plaintiffs can derive no aid from this act of the authorities of Norwich, in this application.
2. If no exclusive right to the use of the streets was acquired under the resolution of the court of common council, the next question is, whether any such right was acquired, under the plaintiffs’ original charter, either by itself alone, or in connexion with their assignment from Treadway?
The only part of the original charter which can have any bearing upon this question, is the second section. That authorizes the corporation to purchase of Treadway his gasworks and gas-business, with all the pipes, machinery, land, &c., connected therewith, and to make and sell gas, and furnish such quantities of gas as may be required for lighting streets, stores, and other purposes, and to make and enforce contracts in relation thereto, to purchase real and personal estate for the accommodation of their business, and to lay down their gas-pipes, and erect gas-posts, burners, &c., in the streets and public grounds of the city and town of Norwich, and to do all things necessary to light the city and town, and the buildings therein. This is the substance of all there is in the charter on the subject; and we discover nothing in it which can fairly be said to raise a plausible argument in the plaintiffs' favor. So far as any exclusive right to any of these privileges is concerned, we do not see [33]*33how the plaintiffs’ ease can be made to differ from the chartered powers of any trading corporation. In regard to the use of the streets, it might operate to protect them from a prosecution, on the part of the public, for breaking them up. But in other respects, how do they stand on any different ground from an incorporated transportation company, with the right to use the highways with their carriages, or the public waters with their boats 1 And could it aid such a corporation, in a claim to an exclusive right to use the public highways, that it was also authorized to purchase the effects of some person who had formerly been engaged in the same business ? There is nothing that makes it necessary that the plaintiffs’ rights should be exclusive. Two or more companies may consistently use the same streets, for the purpose of laying down their pipes. Without resorting, therefore, to the rule that public grants are, in some cases, to be construed most beneficially for the public, and against the grantees, we feel no'hesitation in saying, that the legislature did not intend in the original charter to grant to the plaintiffs any exclusive right to use the streets for the purpose of distributing gas.
3. Have the plaintiffs the exclusive right which they claim under the amendment to their charter, passed in 1855 ?
The second section of the amendment provides that “ The right of the Norwich Gas Light Company to lay down gas-pipes, and to erect gas-posts, burners and reflectors, in and through the streets, alleys, lanes, avenues, and public grounds of the city and town of Norwich, and to distribute gas through the same for the purposes of lighting said streets, lanes, alleys, avenues or public grounds, and the stores, dwellings, and other buildings situated thereon, is, and is hereby declared to be exclusive, as against any and all persons or corporations, except such persons or corporations as may hereafter be invested by the general assembly of this state, with power to use said streets, lanes, alleys, avenues, and public grounds, for the same purpose. Providedthat nothing in this act contained, shall prevent any individual, corporation, or society from making or using gas [34]*34on their own premises, and that the price of gas manufactured by said Norwich Gas Light Company shall at no time exceed four dollars per thousand cubic feet.”
The defendants do not claim to have procured from the general assembly any authority to use the streets, &c., of the city for the distribution of their gas, and thus to have brought themselves within the exception contained in this section ; and we are thus brought directly to consider, what additional privileges were conferred upon the plaintiffs, by this amendment of their charter. And it cannot be denied that the expressed intention of the section is to make the right of the plaintiffs to use the streets exclusive, for the purpose of distributing gas to light the streets, and buildings situated thereon. The question here, then, must be, whether this provision is one which the legislature could lawfully make, in the form in which it is here attempted to be made ? And however reluctant the court may feel, to be obliged to pass upon a question of this sort, yet, as it cannot be avoided without an entire disregard of duty, the question must be disposed of like any other which it becomes necessary to determine, though with all due respect to the legislative power of the state.
This provision must, w.e think, be taken either to be intended as a declaration and enactment, that the laying of gas-pipes in the streets of the city, for the purpose of distributing gas therein, to light the streets and buildings, should be a public nuisance in all other persons, except the plaintiffs; or to be intended as a grant to the plaintiffs of an exclusive property franchise in the streets, consisting in the right to use them for this purpose. The plaintiffs claim it in both these aspects; and they are necessarily driven thus to make their claim, because, if it be viewed as a mere enactment that the laying of gas-pipes in the streets by any persons other than the plaintiffs shall be unlawful, and amount to a public nuisance, without granting any exclusive right to the plaintiffs to do such acts — that is to say, without granting them some legal interest in the use'of the streets for this purpose other than such as would result from a mere [35]*35license to do acts which would amount to a nuisance in other persons, then it would seem to follow from the decisions, that the plaintiffs would have no such interest in the acts of the defendants, as would enable them to apply for an injunction. A mere license to the plaintiffs to distribute gas in a mode which is a public nuisance in other persons, gives them no interest in the street, and they can only sustain their bill upon the idea that they have an interest there which has been, or is threatened to be interfered with. The fact that the parties are competitors for the custom of the city, and its inhabitants, for the sale of gas which they .manufacture, can give the plaintiffs no right to interfere in the defendants’ business, for the purpose of rendering the distribution of their gas so inconvenient as practically to prevent their doing it, and thus of . securing to themselves a monopoly of the business. The manufacturing of gas for the purpose of lighting buildings is a lawful business, which the plaintiffs obviously have no lawful right to interfere with, by throwing obstructions in the way of its distribution. On the contrary, the policy of the law is to encourage trade, by the free competition of all who may choose to engage in it, and it cannot recognize a right in the plaintiffs to interfere for the purpose of preventing a public nuisance, on the ground of an interest they have, as competitors with the defendants, for the public patronage in this business.
If the defendants were engaged in an extensive tannery, so located as to be a public nuisance, could the owners of a rival establishment found a right to interfere on behalf of the public and themselves, merely on the ground that their business was less profitable than it would be, if there were no competitors in the market? We presume no one would seriously make such a claim, yet we see no distinction in principle in the cases. In this aspect, then, the plaintiffs must be considered in the light of a person having no other interest in the subject matter than such as is common to the whole public, attempting by the process of injunction, on his application alone, to restrain the defendants from the commission pf a public nuisance. This, it is well settled, [36]*36cannot be done. Bigelow v. Hartford Br. Co., 14 Conn R., 565. O’Brien v. Norwich & Worcester R. R. Co., 17 Conn. R., 372. Attorney General v. Sheffield Gas Consumers’ Co., 19 E. L. & Eq. R., 639.
Has then the amendment to the plaintiffs’ charter the effect of conferring on them an exclusive property franchise, in the streets and public places in the city of Norwich, for the purpose of laying pipes through which to distribute gas ? The plaintiffs insist that it has this effect, and they say it confers on them a franchise similar, in all respects, to the franchise which is sometimes granted to a ferry or bridge corporation, prohibiting any other ferry or bridge within certain specified limits.
A franchise is defined by Blaekstone to be a royal privilege or branch of the crown’s prerogative, subsisting in the hands of a subject. Being derived from the government, it is always supposed to have been originally granted by the government. It is property which may be transferred. by sale or devise, and it will descend to heirs like other property; and the owner has the same security for its protection under the constitution, as has the owner of any other property. Enfield Toll Br. Co. v. Hartford & N. Haven R. R. Co., 17 Conn. R., 40.
As this is a species of property derived by grant from the government, it follows, that if the government has no power to make the grant, either because it is contrary to public policy, or because the government had no title to the thing granted, no title will be conveyed to the grantee. This' grant appears to have been made without any consideration whatever for it. The plaintiffs are under no obligation to make gas, or to suffer the gas which they may make to be used. They are restricted in the price of what they do sell, but there is no provision that they shall sell to all, or to any who may apply for it, or to so many as they may be able to accommodate. In this respect there is a broad distinction between this and the grant of a bridge or ferry franchise. The most valuable interest in bridge and ferry grants is the right to take toll, and this right is never granted unless it is founded on an adequate consideration, which in the case of [37]*37a ferry consists in an obligation to keep boats for the transportation of passengers, &c., and in the case of a bridge in erecting and keeping the bridge in repair, for the accommodation of all who may have occasion to use it. And we are told that the right of the crown to authorize the collection of tolls can not be imposed on the public, unless upon terms of this sort. 2 Steph. Bl. Com., 16. And if the right to tolls can not be granted, except upon the terms of an adequate consideration, in the facilities furnished to the public, ought the public, or any portion of it, to be deprived of the ordinary means of obtaining gas, unless the parties who claim an exclusive right to use those means, are under an obligation to furnish it ?
Again, it is the duty as well as the prerogative of the government to provide necessary and convenient roads and bridges; and, to enable it to accomplish this object, it has everywhere what is called “the right of eminent domain;” the right over individual estates to resume them for this and other public purposes. Such a prerogative connected with a corresponding duty, with the power to execute it by the exercise of the right of eminent domain, necessarily implies that it belongs to the government to determine what improvements are of sufficient importance to justify the exercise of the right, and when and how it shall be exercised; and if a particular bridge, or ferry, is considered sufficient for a particular locality, it may stipulate, that within such reasonable limits, the particular bridge or ferry tolls shall not be diminished by any other improvement of the sort. But it is no part of the duty of the government to provide the community with lights in their dwellings, any more than it is to provide them with the dwellings themselves, or any of the necessaries o'- luxuries which may be deemed important to the comfort or convenience of the community. And if it be assumed that there would be no impropriety in the lighting of the streets under the control and direction of the sovereign power, this would be merely as a regulation of police, or an incident to the duty to provide safe and convenient ways. And in this case, the power to provide for [38]*38lighting the streets is of no importance, because nothing was done to secure the object, unless the plaintiffs chose to assume it; and whether they would do so, would probably depend upon whether it could be made profitable. As, then, no consideration whatever, either of a public, or private character, was reserved for the grant; and as the business of manufacturing and selling gas is an ordinary business, like the manufacture of leather, or any other article of trade, in respect to which the government has no exclusive prerogative, we think, that so far as the restriction of other persons than the plaintiffs from using the streets for the purpose of distributing gas by means of pipes, can fairly be viewed as intended to operate as a restriction upon its free manufacture and sale, it comes directly within the definition and description of a monopoly; and although we have no direct constitutional provision against a monopoly,"yiFthe"' wh oleTheory of afree government is opposed to such grants, and it does not require even the aid which may be derived from the Bill of rights, the first section of which declares “ that no man or set of men, are entitled to exclusive public emoluments, or privileges from the community,” to render them void. The statute of 21 James I., C. 3, which declares such monopolies to be contrary to law and void, except as to patents for a limited time, and printing, the regulation of which was at that time considered as belonging to the king’s prerogative, and except also, certain warlike materials and manufactures, the regulation of which for obvious reasons may fairly be said to belong to the king, has always been considered as merely declaratory of the common law. 4 Bacon’s Abr., p. 764, Tit., Monopoly. 4 Blk. Com., 160. Hindmarch on Patents, chap. 2, p. 7, et seq. A monopoly, in the sense in which this exclusive grant may be said to be such, is defined by Bouvier as “an institution or allowance by a grant from the sovereign power of the state, by commission, letters patent, or otherwise, to any person or corporation by which the exclusive right of buying, selling, making, working or using of any thing is given.”
While then we are not called upon to question the au[39]*39thority and power of the legislature to grant to the plaintiffs the right to lay down their own pipes for the distribution of gas through the streets, for their own private purposes, we think, considering that the streets, subject to the public easement, are private property, that it does not possess the power to exclude others from using them for similar purposes. And while we do not question its power to provide that the breaking up of the streets for this or other purposes shall be a public nuisance, we do not think the plaintiffs have such a special interest in the streets as will enable them to ask for an injunction against it. As was remarked in the case against the Sheffield Gas Consumers’ Company, above cited, the plaintiffs, having acquired a right to lay their pipes in the streets, are, in truth, seeking through this medium a higher and better right — a right to preclude all others from laying down their pipes. This, we think, they are not entitled to do.
Since this controversy has been pending, the plaintiffs, through the agency of one Caleb B. Rogers, have purchased a lot. of land which has been conveyed to said Rogers, but the plaintiffs, being the equitable owners, are in possession. This lot is so situated on the highway that it is important that the defendants’ main pipe should pass, in the highway, over a portion of it into the city, which being known to the plaintiffs, they purchased the property for the purpose of preventing the defendants from laying their pipes upon, or in it, and thus to prevent them from laying their pipes into the city; yet the defendants, without the consent of the plaintiffs, and against their prohibition, have laid their pipes across that part of said lot which is within the limits of the highway and continue to maintain it there, and avow their intention so to continue it.
Upon these facts we do not think the discretionary power of granting or refusing an injunction ought, under the peculiar circumstances of the case, to be exercised in favor of the plaintiffs, on account of their equitable ownership of this lot. The real, substantial controversy between the parties has been in respect to their rights to use the highways, [40]*40irrespective of any title to the soil, which either of them might have in respect to any particular portion of them. And although it is important to the defendants to cross this lot with their pipe, yet this has nothing to do with the main controversy in the case, and its importance obviously arises from the present location of the defendants’ works. And we do not think that the voluntary purchase of the lot, after the controversy had arisen, as a sort of make-weight in the case, in the hope that it might enable the plaintiffs to secure a bill of costs, irrespective of the rights of the parties upon the real controversy, is entitled, in a court of equity, to any very favorable consideration. The defendants are liable in trespass for any damage that may be done to the land, and the injury at present does not appear to us of that irreparable character that requires the interposition of a court of equity, by way of injunction.
Upon the whole ease, therefore, we advise the superior . court to dismiss the bill.
In this opinion the other judges, Storrs and Ellsworth, concurred.
Bill dismissed.