Scudder v. Trenton Delaware Falls Co.

1 N.J. Eq. 694

• Court: New Jersey Court of Chancery
• Decided: July 15, 1832
• Status: Published

Opinion

The Chancellor.

It is always important for a court to ascertain, before it passes upon a cause submitted to it, that its nature and character are such as to be within the power and jurisdiction of the court; and especially when the jurisdiction is questioned or denied by the party upon whom the decision is to operate. It is pecuiiarly important for a court of equity, whose powers are extraordinary and peculiar, and which administers relief in a mode unknown to the common law.

My first business will be, to inquire whether the court can take jurisdiction of the cause now before it.

The power of a court of equity to interpose by injunction in cases of waste, private nuisance, and great and irreparable injury to the inheritance, is as well established as any that the court now exercises. It does not rest on modern or questionable decisions, but is ancient, uniform, and not now to be shaken. The late cases have so construed this power as to embrace trespasses of a continuous or extraordinary character: Eden on Inj. 139; Stevens v. Beekman, 1 John. C. R. 318: and they have gone upon the ground that the property to be protected was of peculiar value, for the injury or destruction of which a recompense in damages could not be made.

Upon the showing of the complainant, this is a clear case of waste. The complainant is in possession of a farm on the river Delaware. The house, which he has recently erected, stands upon the bank, not far from the commencement of the declivity. The bank along which the water sweeps when the river is full, is now a green bank, the upper part of which, through the whole extent of the farm, is covered with a grove of trees. The lower part, from the water’s edge to the height of ordinary freshets, and to the roots of the trees, has been secured at great expense, by covering it with stones, by means of which, in connection with the trees, the bank is at present effectually secured. In constructing the raceway as at present located, this green bank, a part of which is immediately in front of the dwelling-house, must be cut down, and the trees destroyed, which will greatly expose the property to the encroachments of the river.

The answer, it is true, denies that the route of the raceway runs through the property in such a way as to occasion great, serious and lasting injury to the interests of the complainant in his said farm. It alleges, that the ground to be occupied will not exceed one acre, no part of which is enclosed or has ever been used for the purpose of cultivation, and that it will not be necessary to remove any trees or timber there standing, except a few forest trees, and those of little value.

I do not deem it necessary to inquire how far the court is bound to respect this answer, put in by the company under their corporate seal, or to sit in judgment on the opinion of judge Washington on this subject, in the case of Haight and the Morris Aqueduct Co. in 4 Wash. C. C. 601, the legality of which was denied at the bar; for admitting the answer to be true, the case made by the bill, answer, and affidavits, is sufficient, in my view, to make out the apprehended case of waste. The facts admitted by the defendants, that a part of the bank must be taken down, and a part of the trees removed, are of more weight than the conclusions which they undertake to draw from them, that the injury resulting will be neither serious nor lasting. It is clearly shown that the bank as it now is, with the trees upon it, form a very valuable protection to the property. The importance of the trees is demonstrated by a fact stated by one of the witnesses—that -within his recollection, the trees upon the bank of the river about a mile below the complainant’s, were cut down, and although great labor had been expended and great expense incurred in securing the bank, yet that the river has very rapidly encroached upon it. He further states, that the spot spoken of is, as he thinks, less likely to be injured by the river than the farm of complainant; the channel of the river near the former-place being free from islands and all other obstructions to its natural course. If the apprehended or threatened act of the company will be a lasting injury to the inheritance of the complainant, (of which there is no room, as I think, to doubt,) it forms a case of waste, over all which cases the court has an undoubted jurisdiction, and will exercise its preventive power on all proper occasions.

But if this should be considered in the light of a trespass, I should feel no difficulty in entertaining jurisdiction. It is not an ordinary case, where the damage is temporary, or of such a character as to admit of full compensation in damages. The defendants intend not merely to enter and carry away the product of the soil, or even a part of the soil itself, which the complainant might afterwards replace; they seek to appropriate the land to their own use, permanently and absolutely; to take entire possession of this part of his property, and place it beyond his power or control, as though be had never owned or possessed it. This would be a complete severance of that part of the estate from the residue, and a destruction of it in the character in which the complainant now enjoys it; and it would be strange if this court had not authority to interpose its arm for the prevention of such an act. In Jerome v. Ross, 7 John. C. R. 331, the court refused to interfere in a case where the trespass charged was for entering upon the land of the plaintiff, and digging and taking away large parcels of stone from a ledge of rock on the premises. It was not charged, nor did it appear, that the ledge of rock was of any particular use or value to the plaintiff, or that it was desirable for building, fencing, or any other purpose either for use or ornament; and the court was of opinion that the plaintiff’s remedy was in a court of law for damages. The distinction between that case and the present one is very strongly marked ; and taking it on the ground upon which it was placed by the chancellor, it is an authority in favor of the complainant. From the reasoning of the court, and the cases cited, there is no doubt, that if the trespass complained of had been destructive of the estate, he would have injoined the defendant; and this doctrine is supported by a great variety of cases, in England and this country. See 7 Ves. 305, Hanson v. Gardiner; 1 Bro. C. C. 588, Robinson v. Ld. Byron; 3 P. Wms. 255, Gibbs v. Cole; 15 Ves. 138, Crockford v. Alexander; 2 Dow P. C. 520; 1 John. C. R. 318, Stevens v. Beekman; 2 John, C. R. 463, Belknap v. Belknap; 9 Wheat. 840, Osborne v. Bank of the U. S.

Without pursuing this subject further, I shall consider that the court has full and complete jurisdiction in this case.

It is insisted, however, by the defendants in this cause, that if the court has jurisdiction, it ought not to be exercised at this time in favor of the complainant. It is said he has lain by and slept on his rights ; has seen the defendants making contracts for, and expending large sums of money in, the preparation of their work, and taken no step to prevent or restrain them, until the present bill was filed. If this objection be well founded, it is fatal to the application. It is a law of the court, and a dictate of sound reason, that when a party desires extraordinary aid, he must be prompt in his application.

The facts in this case show that the complainant did not consent to give his land for the purposes of the company, and that no agreement was made with him fixing the amount of compensation he was to receive. Upon this is founded the application to the chief justice for the appointment of commissioners to make an appraisement of the value of the land, and (he damages the complainant was entitled to receive. After the valuation was made, and when the amount of it was tendered, he refused to accept it as a just compensation; and gave notice, that unless the company paid to him what he was willing to receive for the property, he would contest the validity of their proceedings. His courtesy to the commissioners, in permitting them to walk on and view the ground, cannot deprive him of his rights; nor does the fact, that he went with them over the ground and explained to them the nature and extent of the injury he was about to sustain, vary the case materially. He did not appear before the commissioners when they met to make up their report, either in person or by attorney. He fixed his price for his property. If the commissioners had thought proper to award him that amount, or if the company had thought proper to pay it to him, he would have waived all objections to their power, and to the mode of proceeding. He had a perfect right to do so. The company could not have been deceived, for they knew the determination he had made. They might have hoped, and probably did hope, that the complainant would be induced to alter his mind, and accept the sum awarded. However this may be, if they went on under such circumstances they proceeded at their peril. It will not avail them to say, that the complainant saw them commencing operations, and expending large sums of money, knowing that the raceway must necessarily be constructed through his land, and yet that he took no means to prevent it; that he sued out no certiorari, and filed no bill; and that, having neglected to take any legal measure, he is now loo late, and must lose the privilege of the preventive remedy of the court. I do not perceive in this any laches deserving so severe a visitation. The complainant, it is true, might have filed his bill at an earlier day, placing himself upon the ground, that, as the survey was filed and could not be departed from, the danger was impending and the injury might be committed at any moment. The risk of sustaining the bill at that time would have been upon him, and he might have taken it if he had chosen to do so. But it must be remembered that the company had it in their power to bring this difficulty to an issue before they had expended any thing more than was necessary to make their surveys. They could have gone upon the property, as they afterwards did, and commenced operations. If the complainant had then remained silent, and acquiesced in the act; if he had seen them cut down the trees and make half the excavation, and had then applied for an injunction to prevent its completion ; or if he had permitted the raceway to be completed, and then sought to enjoin them from letting in the water, he would have been too late. This court would have turned him over to his legal remedy for redress. But under the circumstances, was it at all necessary that the complainant should do more than he did? He had refused to accept of the sum awarded, and made known his determination to stand upon his rights, unless the company paid to him the amount that he deemed a proper compensation. It was not necessary for him to do more, until his rights were invaded. Justice to the company did not require it; and if from his not acting sooner, the company drew the conclusion that he did not intend to act at all; might not he, from the fact that the company was constantly expending large sums of money with full knowledge that this difficulty remained open, with much more propriety have drawn the conclusion, that they intended to pay him his price for his property ?

It is not unlikely that there have been misapprehensions on both sides, and that both parties have entertained the hope that the difference would be in some way adjusted and litigation prevented, and that in this they have both been disappointed. It is not perceived, however, that their legal rights are in any wise varied by it; and under the clear impression that the application of the complainant is not too late, I shall now proceed to consider the remaining and more important questions in this cause.

It appears from the case made, that the proceedings of the defendants are sought to be justified under the act of incorporation already mentioned, giving them authority to create a water power. This act, as we have seen, provides the mode to be pursued by the company in surveying, appropriating and acquiring title to such lands and property as may be necessary for the purposes of their grant. It requires a survey ; an agreement between the parties, or, in case of disagreement, an assessment by three indifferent men ; and a payment or tender of the amount appraised.

There is no complaint in this case that the company have exceeded the limits of the power given them, or that they have abused or misapplied it. In all such instances of abuse or misconduct, the court will interfere ; but it will not give its aid where the powers granted have been exercised in good faith, or where they are discretionary, or where the right is doubtful: Coop. Eq. 77; 7 John. C. R. 340, Jerome v. Ross; 2 Dow, 251. The complaint is of a more serious character, deeply affecting the claims of the defendants, and the rights of the community. It is, that the act of incorporation, though emanating from the legislative authority of the state, confers no power to take the complainant’s property in the way, and for the uses, in which it is designed or attempted to be taken ; that it is unconstitutional, and therefore void.

Two grounds are taken :

One is, that the act assumes to vest the complainant’s right and property in his lands, or a part of them, in the defendants, without a just compensation therefor, and without an opportunity of having the compensation ascertained by a jury of the country.

Another is, that the land is sought, to be taken, not to answer any state necessity, nor for the benefit of the community at large, nor for any public use whatever, but solely for the private gain and emolument of the said company.

The first ground presents the question, whether in cases of this kind, private property can be taken, without the intervention of a jury to ascertain the compensation which the party is to receive as an equivalent. The fifth amendment of the constitution of the United States declares, that private property shall not be taken for public use, without just compensation ; but it is silent as to the mode of fixing the compensation, when there is no agreement. The twenty-second section of the constitution of our state, provides that the common and statute law of England, so far as they have been adopted, shall continue in force in this state till altered by the legislature, and that the inestimable right of trial by jury shall be and continue without repeal for ever.

In this branch of the argument, I assume the principle, that the property to be taken is for public use ; that it may, under the constitution of the United States, be divested on making just compensation. The right of the state to take private property for public use, is conceded as a general proposition. It is a right appertaining to sovereignty; one which the state may freely exercise on all proper occasions, and which a jury has no power to control. It cannot be pretended, therefore, that before a state may exercise this high attribute of sovereign power, a jury must pass on the legality or propriety of the act. This would be to place the necessities of the state, in some instances, and its privileges, in others, in the keeping of a jury of the country, which would be contrary to the established order of all governments. The right, then, cannot be made the subject matter of trial by jury. But compensation is to be made, and that, too, a just compensation ; and the question is, whether that just compensation can be ascertained in any other mode than by jury. No difficulty could arise on this subject, but for the constitutional provision. There is no reason why three indifferent men, selected by the chief justice from the body of the state, for their probity and indepen-clence, should not, in a mere matter of valuation, exercise as just a judgment, and be in all things as discreet and impartial, as a jury of the vicinage.

Does a sound construction of the constitution require that these valuations should be made by jury?

We all revere the constitution, and profess to be regulated by its provisions. We believe it to be the supreme law of the land, and “ paramount to the power of the legislatureand that, whenever the legislature undertakes, in the exercise of its authority, to transcend the limits clearly prescribed to it by the constitution, its acts are void. It is, nevertheless, our duty to give it a rational and just interpretation : avoiding, on the one hand, a spirit of slavish fear, and on the other, a spirit of restless innovation. The constitution provides, that the common j law of England, as well as so much of the statute law, as have heretofore been practised in this state, shall remain in force until < altered, &c.; and that the inestimable light of trial by jury shall remain confirmed as a part of the law of this state, without re-; peal, for ever.

It is unnecessary to inquire into the origin of the trial by jury, * or how far, and to what particular cases, it has been extended > in England. How it was exercised in the colony, at the time of’; adopting the constitution, is a more impoitant inquiry. It was a part of the common law, so far as that had been adopted or j acted on here at that time: so far it was to remain the law of^ the state, until altered ; but that part of it relating to trial by ju-) ry was to remain without repeal. It was to remain, as it had T theretofore been in use. Our means of information as to the practice in cases like the present, before and at the time the constitution was adopted, are limited. They are sufficient, however, to satisfy us, that the writ of ad quod damnum was not in use universally. In Smith's History of New-Jersey, we find that in 1681, under the proprietary government, certain commissioners for the settling and regulating of lands in this province, ordained, that in laying out, or setting forth as it is termed in the regulations, all public highways, the owners of lands, when such public highways shall be laid forth, shall be allowed reasonable satisfaction in lieu thereof, at the discretion of the commissioners. By looking a little further into this matter, it appears, that these commissioners for regulating lands, &c. were appointed by the first provincial assembly of West Jersey, assembled at Burlington in 1681: Learning and Spicer, 440. And it is remarkable, that the assembly at the same session passed a solemn act, general and fundamental in its character, and in many respects corresponding with a bill of rights, in which they declare, “ that no proprietor, freeholder, or inhabitant of the province, shall be deprived or condemned of life, limb, liberty, estate, properly, or any ways hurt in his or their privileges, freedoms, or franchises, upon any account whatsoever, without a due tryal and judgment, passed by tvselve good and lawful men of the neighborhood, first had, or according to the luws of England,.” Either the ordinance of the commissioners for regulating lands, acting under the authority of this very assembly, and some of whom were members of it, was irregular and unlawful, or the valuation thus to be made for private property taken for public use, was not considered a case in which a jury was indispensably necessary according to the laws of England. The latter branch of the proposition is by far (he more probable, and if it be correct it proves satisfactorily that they did not apply the common law right of trial by jury to a case of that kind. In 1765, under the royal government, provision was made by law for the assessment of damages by commissioners, on the occasion of laying out certain straight roads in the province : Allison, 273. Before this time, there was a general road law, by which private properly was taken and appropriated as it now is, without compensation, and which had reference only to the ordinary roads from one neighborhood or settlement to another. It was supposed by the legislature that it would greatly facilitate the conveyance of letters by the post, be of great importance to bis majesty’s service, and to the commercial interests and general convenience of the inhabitants of the province, to have some of the principal highways shortened. Commissioners to make the necessary surveys and estimates were appointed, with power to enter and pass any lands through which the straight lines might run. They were directed to make an estimate of the whole expense, and also of the damages it might occasion to any person through whose lands it might pass, and a provision was made for paying the whole expense by lottery. It would appear from this, that the legislature thought these communications, when thus opened, would be more immediately important to the public at large, and especially to the government; and that in taking private property for these purposes, there was a propriety and moral fitness in making compensation to the owners. Commissioners, as we have seen, were appointed to make an assessment of the damages to be sustained by individuals. These cases are important to show what was the practice before tire revolution ; and if, in consequence of the payment of damages, the property of the soil became vested in the state, as l apprehend was the fact in the last case, it is directly in point. That the property was absolutely divested, and became the property of trie state, is inferred from the fact that these particular roads, have been, in all our road laws save the last, excepted out of their general operation, and declared to be unalterable by surveyors of the highways, or any other persons. I do not find any cases about this time, in which the writ of ad quod damnum was resorted to, or an assessment by jury ordered ; and, judging from what I have been able to find, [ cannot come to the conclusion that in 1776, when the constitution was adopted, the trial by jury was extended to this kind of assessments, and that it was, therefore, the common law of the land. It may be useful to inquire, what has been the practice since. In 1791, the act was passed incorporating the society for useful manufactures at Paterson. This act was prepared with great care and particularity, and provides for an assessment by the writ of ad quod damnum and a jury. The most of the acts passed since that period, in which private property is authorized to be taken for public use, are acts authorizing the making of turnpike roads or canals; and they have almost uniformly, till of.late, followed that precedent, so far as regards the taking of lands to be permanently occupied. There are some acts in which a different mode has been pursued. In 1802, the legislature authorized Nathaniel Budd to appropriate to his own use, for tire purposes of a ferry at Paulas Hook, two acres of land which was in dispute between the heirs of Kennedy and the corporation of Bergen. The act provided, that if, after the controversy was ended, the successful party and the said Budd could not agree as to the value of the land, or the sum to be paid by Budd, that then he should pay such sum annually by way of ground rent, as should be adjudged by three disinterested freeholders, appointed by one of the justices of the supreme court; or that Budd should be paid for his improvements an amount to be ascertained in the same way: 1 Pamph. Laws, 153. See also 2 Pamph. Laws, 747, as to the mode of making assessment in relation to the drowned lands in Sussex. In 1798, it was enacted, that all those who should receive damage by the erection of a bridge over the river Delaware at Trenton, should be compensated in damages, and the damages assessed by commissioners to be appointed by some of the justices of the supreme court.

So far as relates to the damages sustained by taking away gravel, stones, or other materials for constructing roads, canals and other improvements, most of the charters have left them to be ascertained by arbitrators or commissioners. And yret it is evident, that in many instances, the taking away of such materials, and appropriating them to the use of a company, is quite as injurious as appropriating the whole land. If it be gravel, the value of the properly may be destroyed when that is gone. If it be a quarry, of what benefit will the property be when the stone is exhausted? The principle is the same, whether the entire possession of the land be taken, or whether the possession be assumed of one half of it. It is not easy to perceive why a different course of proceeding has been adopted in the two cases, if both were within the range of constitutional provision ; and if one is, will it be said that both are not.

It is, nevertheless, certainly true, that since the year 1800,\ almost all the acts passed have provided for assessments by a j jury where lands have been taken absolutely. This shows the : strength of popular feeling in favor of that mode, rather than its exclusive constitutionality. It may be a strong argument with the legislature in favor of the policy of providing that mode, as: most satisfactory, and most analagous to the genius of our institutions ; but does not satisfy me that the mode adopted in the act! under consideration is unconstitutional, and therefore void. The evidence in favor of the practice, before the adoption of the constitution, is very strong: and I am, moreover, strongly inclined to the opinion, that the words of the constitution are fully satisfied by preserving the trial by jury in all criminal cases, and all trials of right in suits at common law.

I conclude, then, that the first objection against the constitutionality of the present act, is not sustained.

The second objection is, that the land is sought to be taken, not. to answer any state necessity, nor for the benefit of the community at large, nor for any public use whatever, but solely for the private gain and emolument of the company.

This presents a grave and interesting subject for inquiry. It strikes at the constitutionality of the law, not merely in relation to its details, and minor provisions, but its very nature and objects ; and if the blow be well aimed, it is utter destruction.

It is admitted, that private property shall not be taken for private use. The legislature has no right to take the property of one man and give it to another, even upon compensation being made. I have already adverted to the right of the state to take private property for public use, and need not repeat what has been said. This right was originally founded on state necessity. If its exercise had been confined to this limit, there could be no doubt as to this case ; for it will not be pretended that the enjoyment of the complainant’s property is called for by any necessity of the state, or that it is to be appropriated in that way. In process of time the right has been more liberally construed. The term public use, has been substituted; and what shall be considered as public use, is, under the decisions of our courts, an unsettled question. It is not limited to the actual use and occupation of the property by the state: for private property is taken in many instances, when the state, in its sovereign capacity, does not and cannot occupy it. It is not limited to public political corporations ; for the right of private corporations, to take private properly for a variety of purposes, such as the construction of canals, turnpike roads, &c., is not disputed at this day. Nor is it limited to private corporations whose sole object, or even whose primary object it is, to promote the public good. Such corporations are not to be found. Private interest or emolument, is the primum mobile in all. The public interest is secondary and consequential. Where, then, shall the line be drawn by this court, called on as it now is to decide on the point ?

Before I undertake to express any opinion, it will be well to see that I am in the line of duty; for it is contended on the part of the defendants, that the power of judging'on this subject is committed to the legislative department of the government alone, and that the judiciary cannot interfere. This doctrine the court can in no wise admit. The legislature, in this state, is not omnipotent, as was the British parliament. It is subordinate to the constitution; and if it transcend its power, its acts are void, and it is the dutjr of the judiciary to declare them so. The duty is at all times unpleasant, but no independent tribunal will hesitate to do it in clear cases. The opinion of chancellor Kent, in his Commentaries, (2 Kent, 276,) does not support the position of the learned counsel. The author remarks, that it undoubtedly must rest in the wisdom of the legislature to determine when public use requires the assumption of private property. I do not understand by this, that the legislature is to be sole judge of what is meant by public use ; but that the fact being established, that, private property of a particular character may be taken and appropriated to public purposes, it is for the wisdom of the legislature to say when that appropriation shall be made. That the commentator did not intend to be understood as saying, that.tfafc legislature was to be sole judge in this case, is evident; for he admits afterwards, that if the legislature should take the property of A. and give it to B., the law would be unconstitutional and void. And yet who is to judge that the property thus taken from one and given to another, was not intended by the legislature for public use or benefit? Who is to declare it unconstitutional and void, after they have determined its propriety ?

Not doubling that the court may saiely sit in judgment on this matter, it only remains to inquire, whether the use to which the property is to be appropriated, is a public use. It has been seen, that turnpike roads and canals are considered of a public nature, so fiir as to authorize the taking of private property for their construction. Railroads have lately been added to this class of public improvements. In the case of Joseph Buonaparte v. The Camden and Amboy Railroad and Transportation com,pa ny, the circuit court refused to grant an injunction, applied for on the ground that the purpose to which the land was to be applied was a private and not a public purpose. The same course was taken by chancellor Walworth, in the case of Beekman v. The Saratoga and Schenectady Railroad company. It is contended, however, that the present case is going a step further than has yet been done. Turnpike roads have been considered as public, or as appropriated to public uses, because every one has a right to travel them on paying the regular toll. Railroads have been considered public, because they facilitate the conveyance of passengers and the transportation of merchandize, and thereby benefit the community : whereas the object of the present franchise is to create a water power, and erect thereon extensive manufacturing establishments. These will be under the control of individuals. The company may either build or lease. They may build for themselves, or lease to whom they please. And they are under no obligation to let the public participate in the immediate profits of their undertaking. If to establish this as a public benefit, it be indispensably necessary that the public should have the privilege of participating in it directly and immediately, then the proposition is not made out, and the defendants have no authority. But is not this view too narrow ? Can public improvements be limited within such a compass? ^MLay we not, in considering what shall be deemed a public use and benefit, look at the objects, the purposes, and the results of the undertaking? The waterpower about to be created, will be sufficient for the erection of seventy mills, and factories, and other works dependent on such power. It will be located at the seat of government, at the head of tide water, and in a flourishing and populous district of country. It will be no experiment in a country like ours ; and, judging from the results in other places, we may make a sufficiently accurate calculation as to the result here. Take the towm of Paterson as an example. The water power there is in the hands of individuals—a company like this. They are under no obligation to lease or sell any mills or privileges to the public; and yet see the result of a few years’ operation. Paterson is now the manufacturing emporium of the state, with a population of eight thousand souls. It has increased the value of property in all that district of country ; opened a market for the produce of the soil, and given a stimulus to industry of every kind. May we not hope that a similar benefit may be experienced here'? Compare this with some other improvements in the state, which, on the principles contended for, are called improvements for public purposes, and for the erection of which a large amount of private property has been taken. Take, for example, one of the oldest and longest turnpike roads in the state—the one from New-Brunswicfc to Easton. What public benefit has resulted from that road, compared with the result of the water power on the Passaic'? And yet, the road is declared constitutional, because -the community may use it by paying toll.

I incline to think the principle sought to be established by the defendants’ counsel, is too limited ; but I do not know that this court can establish a general rule that shall hold good in all cases, and be a permanent bar to legislative encroachment. The ever varying condition of society is constantly presenting new objects of public importance and utility; and what shall be considered a public use or benefit, may depend somewhat on the situation and wants of the community for the time being. The great principle remains. There must be a public use or benefit; that is indisputable: but what that shall consist of, or how extensive it shall be to authorize an appropriation of private property, is not easily reducible to general rule.

Looking at this case in all its bearings, and believing as I do that great benefit will result to the community from the contemplated improvement, I am not satisfied to declare the act of incorporation, or that part of it which is now in question, void and unconstitutional. I do not see in it such a decided and palpable violation of constitutional right as will warrant me to put an end to this work, by the strong arm of the court. The legislature have thought proper, in their wisdom, to exercise the right of eminent domain, for an object which they deem of public use and importance; and although their judgment is not conclusive as to the right, it is certainly entitled to a most respectful consideration. They have authorized a company to do what the state itself might have done without having their right questioned. They have in this pursued the ordinary mode. All great improvements in our state, are made through private incorporated companies, and perhaps better accomplished in that way than any other. The mere mode of making them, forms no objection in itself to their constitutionality: courts will look at the object, and judge from that.

In passing upon this question, I cannot forget that I am sitting in equity, where questions of strict law are not ordinarily tried ; and that the court is called on to exercise a most high and delicate power, one never to be exercised except in clear and unequivocal cases. This does not present itself to me as such case ; and although in the investigation of it, I have entertained serious doubts on the last point, yet I am clearly of opinion that the injunction ought not to issue.

The injunction is refused.