Waite, C. J.
Jurisdiction, in matters of equity, was conferred upon the courts in this state, with very great hesitancy, on the part of the legislature. For more than a century after the organization of our government, that power was retained and exercised by the general assembly.' And when it was finally conferred upon the courts, it was done with very great caution. It was not given to any chancellor or separate tribunal, erected for the purpose, but to the courts as then constituted.
The very first act, upon that subject, limited the jurisdiction of the highest court to cases, where the matter in demand did not exceed one hundred pounds, to be exercised only where remedy was not to be had at law. And even that act was to continue in force only for a period of three years. Gradually, however, jurisdiction in all matters of equity was conferred upon the courts, and, by a recent statute, is now vested entirely in the superior court.
The grant of this power was accompanied with an important provision, that the courts, in the exercise of it, should proceed according to the usage of the general assembly in such cases. Hence arose the practice of referring cases in equity to committees, to find and report, not the evidence in the case, but the facts; in other words, how far the allegations in the bills and answers are true.
This practice has many advantages over that which prevails in England, and in most of our sister states. It renders proceedings in equity less voluminous and expensive to the parties, and enables those, who hear the witnesses, to determine the degree of credit to be given to their testimony.
The report is very much like a special verdict found by a jury, and when accepted, it becomes the duty of the court to apply the law and determine what decree shall be made.
In conformity with the practice which prevailed in the general assembly, it is competent for the court itself to hear the evidence, and make the finding, or refer it to a committee for that purpose. But a finding, in one of those modes, is [431]*431essential to the foundation of a decree. The statute says, “ Courts of equity shall cause the facts on which they found their decrees, to appear on record.” Statutes, 1854, p. 471.
This enables either party, if dissatisfied with the decision, to have the case reviewed, by writ, or motion in error, as was done in this case.
This great caution on the part of the legislature, in conferring the power, requires a corresponding caution, on the part of the courts, in the exercise of it, that the fears, formerly entertained that it might be abused, may not be realized.
It has been holden that the law of congress, providing “that suits in equity shall not be sustained in either of the courts of the United States, in any case, where plain, adequate and complete remedy may be had at law,” is merely declaratory, making no alteration in the rules of equity, on the subject of legal remedy. Boyce's Executors v. Grundy, 3 Pet., 215.
This may be true of that law, embraced in an act, creating the courts, and defining and limiting their powers. But the same construction has not been given to our law. Thus, in a suit in equity, calling for an account from the defendant, a former guardian of the plaintiff, Daggett, C. J., remarked, “ In my judgment, the plaintiff has adequate remedy at law, and if so, the superior court is prohibited by express legislative enactment from holding jurisdiction,” and the bill was dismissed. Stannard v. Whittlesey, 9 Conn. R., 559.
Perhaps the most useful and important branch of equity jurisdiction is that relating to the granting of writs of injunction, and at the same time, it is one most liable to be abused, and perverted to purposes of extortion and oppression.
For an illustration of the correctness of that position, we need but look at the facts, found by the committee in the present case. The plaintiff and his nine brothers and sisters were the joint owners of .two pieces of land, under the incumbrance of the life estate of their father, and even the [432]*432plaintiff’s interest in the property was mortgaged to a brother, to secure the payment of a note of much greater amount, than the value of all his interest.
Across these two pieces of land, the railroad company located their road, and, for that purpose, took about two acres of the land. They then applied to the superior court, for the appointment of appraisers to assess the damages done to the owners. All of them were duly notified, with the exception of the plaintiff, whose name was omitted in the citation, through mistake, in consequence of information from the town clerk, that he had conveyed away all his interest in the property, instead of giving a mortgage of the same.
The appraisers assessed the whole damages done to the owners, at the sum of one hundred and ninety dollars, and apportioned that amount among the other proprietors. According to that valuation, the plaintiff’s share, at most, could not have amounted to the sum of twenty dollars. He remains silent for a period of more than two years, and until after the company have completed their road.
He now calls upon the court to enjoin the company against the use of their road, over the land, in which he had an interest, simply because that interest has not been legally taken. This, as the committee have found, and as all must see, can not be done without great injury to the company, and serious loss and inconvenience to the public, in being deprived of the railroad facilities, furnished by the company. It probably would be more for their interest to pay the plaintiff ten fold, or even an hundred fold, the amount of his share, of the damages, according to the assessment of the appraisers, than have their operations stopped, in the manner prayed for in the bill.
We will not say that the plaintiff, in applying for an injunction, intended thereby to take an undue advantage of the company, and extort from them unreasonable damages, as no such fact has been found. Yet it is perfectly obvious, that a decree to that effect would place the company in a situation, in which they must either submit to such terms as [433]*433the plaintiff might exact, or to great loss and damage in their business.
“ An injunction,” says Hosmer, C. J., “ is not en debito justitiw, for any injury threatened or done to the estate, or rights of a person, but the granting of it must always rest in sound discretion, governed by the nature of the case.” Enfield Toll Bridge Co. v. Conn. River Co., 7 Conn. R., 50.
Were then, this the whole case, we should be of opinion, that the superior court exercised a sound discretion, in refusing an injunction, for an injury so trifling, when, if granted, it would have been productive of so much damage to the principal defendants. It was better, far better, to leave the plaintiff to his remedy at law, by action of trespass, or ejectment, as the facts might require.
Indeed, in one of our earliest reported cases upon this subject, a decree of the superior court was reversed, because the plaintiff had an adequate remedy at law, by an action of ejectment. Willet v. Overton, 2 Root, 343.
And we take this occasion to say, that writs of injunction are not to be granted for every trifling cause, nor made substitutes for every action of trespass or ejectment.
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Waite, C. J.
Jurisdiction, in matters of equity, was conferred upon the courts in this state, with very great hesitancy, on the part of the legislature. For more than a century after the organization of our government, that power was retained and exercised by the general assembly.' And when it was finally conferred upon the courts, it was done with very great caution. It was not given to any chancellor or separate tribunal, erected for the purpose, but to the courts as then constituted.
The very first act, upon that subject, limited the jurisdiction of the highest court to cases, where the matter in demand did not exceed one hundred pounds, to be exercised only where remedy was not to be had at law. And even that act was to continue in force only for a period of three years. Gradually, however, jurisdiction in all matters of equity was conferred upon the courts, and, by a recent statute, is now vested entirely in the superior court.
The grant of this power was accompanied with an important provision, that the courts, in the exercise of it, should proceed according to the usage of the general assembly in such cases. Hence arose the practice of referring cases in equity to committees, to find and report, not the evidence in the case, but the facts; in other words, how far the allegations in the bills and answers are true.
This practice has many advantages over that which prevails in England, and in most of our sister states. It renders proceedings in equity less voluminous and expensive to the parties, and enables those, who hear the witnesses, to determine the degree of credit to be given to their testimony.
The report is very much like a special verdict found by a jury, and when accepted, it becomes the duty of the court to apply the law and determine what decree shall be made.
In conformity with the practice which prevailed in the general assembly, it is competent for the court itself to hear the evidence, and make the finding, or refer it to a committee for that purpose. But a finding, in one of those modes, is [431]*431essential to the foundation of a decree. The statute says, “ Courts of equity shall cause the facts on which they found their decrees, to appear on record.” Statutes, 1854, p. 471.
This enables either party, if dissatisfied with the decision, to have the case reviewed, by writ, or motion in error, as was done in this case.
This great caution on the part of the legislature, in conferring the power, requires a corresponding caution, on the part of the courts, in the exercise of it, that the fears, formerly entertained that it might be abused, may not be realized.
It has been holden that the law of congress, providing “that suits in equity shall not be sustained in either of the courts of the United States, in any case, where plain, adequate and complete remedy may be had at law,” is merely declaratory, making no alteration in the rules of equity, on the subject of legal remedy. Boyce's Executors v. Grundy, 3 Pet., 215.
This may be true of that law, embraced in an act, creating the courts, and defining and limiting their powers. But the same construction has not been given to our law. Thus, in a suit in equity, calling for an account from the defendant, a former guardian of the plaintiff, Daggett, C. J., remarked, “ In my judgment, the plaintiff has adequate remedy at law, and if so, the superior court is prohibited by express legislative enactment from holding jurisdiction,” and the bill was dismissed. Stannard v. Whittlesey, 9 Conn. R., 559.
Perhaps the most useful and important branch of equity jurisdiction is that relating to the granting of writs of injunction, and at the same time, it is one most liable to be abused, and perverted to purposes of extortion and oppression.
For an illustration of the correctness of that position, we need but look at the facts, found by the committee in the present case. The plaintiff and his nine brothers and sisters were the joint owners of .two pieces of land, under the incumbrance of the life estate of their father, and even the [432]*432plaintiff’s interest in the property was mortgaged to a brother, to secure the payment of a note of much greater amount, than the value of all his interest.
Across these two pieces of land, the railroad company located their road, and, for that purpose, took about two acres of the land. They then applied to the superior court, for the appointment of appraisers to assess the damages done to the owners. All of them were duly notified, with the exception of the plaintiff, whose name was omitted in the citation, through mistake, in consequence of information from the town clerk, that he had conveyed away all his interest in the property, instead of giving a mortgage of the same.
The appraisers assessed the whole damages done to the owners, at the sum of one hundred and ninety dollars, and apportioned that amount among the other proprietors. According to that valuation, the plaintiff’s share, at most, could not have amounted to the sum of twenty dollars. He remains silent for a period of more than two years, and until after the company have completed their road.
He now calls upon the court to enjoin the company against the use of their road, over the land, in which he had an interest, simply because that interest has not been legally taken. This, as the committee have found, and as all must see, can not be done without great injury to the company, and serious loss and inconvenience to the public, in being deprived of the railroad facilities, furnished by the company. It probably would be more for their interest to pay the plaintiff ten fold, or even an hundred fold, the amount of his share, of the damages, according to the assessment of the appraisers, than have their operations stopped, in the manner prayed for in the bill.
We will not say that the plaintiff, in applying for an injunction, intended thereby to take an undue advantage of the company, and extort from them unreasonable damages, as no such fact has been found. Yet it is perfectly obvious, that a decree to that effect would place the company in a situation, in which they must either submit to such terms as [433]*433the plaintiff might exact, or to great loss and damage in their business.
“ An injunction,” says Hosmer, C. J., “ is not en debito justitiw, for any injury threatened or done to the estate, or rights of a person, but the granting of it must always rest in sound discretion, governed by the nature of the case.” Enfield Toll Bridge Co. v. Conn. River Co., 7 Conn. R., 50.
Were then, this the whole case, we should be of opinion, that the superior court exercised a sound discretion, in refusing an injunction, for an injury so trifling, when, if granted, it would have been productive of so much damage to the principal defendants. It was better, far better, to leave the plaintiff to his remedy at law, by action of trespass, or ejectment, as the facts might require.
Indeed, in one of our earliest reported cases upon this subject, a decree of the superior court was reversed, because the plaintiff had an adequate remedy at law, by an action of ejectment. Willet v. Overton, 2 Root, 343.
And we take this occasion to say, that writs of injunction are not to be granted for every trifling cause, nor made substitutes for every action of trespass or ejectment. When wisely and cautiously granted, they may be rendered highly beneficial; but they are not to be so used as to impose harsh and oppressive restraints upon the liberties of the people, and thereby rendered odious in public estimation. They ought not to be issued, except for the prevention of great and irreparable mischbf, and, in the language of our present statute, in cases only, in which adequate relief can not be had in the ordinary course of law.
But, upon another ground, the decision in the court below can be vindicated. The plaintiff has no equity. The principal objection to the validity of the assessment of damages, is the want of notice to him to appear and be heard relative to the appointment of the appraisers, and their assessment.
But this omission to give the plaintiff notice, was by mere mistake, arising from wrong information from the town clerk, [434]*434relative to the plaintiff’s title. The appraisers, acting under the belief that the property belonged to the other owners, assessed all the damages occasioned by the location of the road, and apportioned the whole amount among them. And this amount was paid to the treasurer of the county for the use and benefit of the owners.
There was, indeed, through some mistake, an unequal apportionment of the damages, which probably a court of chancery, upon a proper application, would have corrected. But David "W. Whittlesey, to whom the greater share of the damages was awarded, as an honest man, voluntarily divided his share among all his brothers and sisters, including the plaintiff, in such manner, as to make all their shares equal.
The plaintiff, having thus received his full share of the damages awarded to the owners of the land, suffers the company to go on for a period of more than two years, building their road, and putting it in operation, without objection or claim for further compensation. It is true, for the principal part of that period, the property was under the incumbrance of his father’s life estate, but it is found that he' knew what the company were doing, and could, at least, have given them notice that he claimed an interest in the land, which had not been legally taken.
Under these circumstances, the reception by the plaintiff of the company’s money, and his subsequent silence in relation to any claim on his part, must be considered as a waiver of any irregularity in the proceedings relating to the appraisal. It is too late now for him to say, that he had no notice of the time and place for the appointment of appraisers, or of making their award, when he has accepted his share of the damages, by them awarded, and suffered the company to go on with their road in the same manner, as if everything had been legally and satisfactorily done.
Had the appraisers assessed to him his share of the damages, and had it been paid to him, as such, by the company, no question could arise but that he would be estopped from [435]*435making the present objection. But it can make no difference, whether the damages were paid directly to him by the company, or indirectly, through the medium of the county treasurer, and his brother. It is enough that he has received their money, as his share of the damages.
It is further said, that the assessment is void, because the damages were awarded to the proprietors severally, and not jointly, and were not apportioned according to their respective interests.
As to the mistake in the apportionment, as we have already said, it might have been corrected upon a proper application to a court of chancery. But the necessity for such an application was removed by the voluntary action of the proprietors, in making the division, as it should have been made.
Whether it was the duty of the appraisers to have assessed the damages jointly, or severally, it is unnecessary for us to enquire. Because, if there were any irregularity in that report, or in the apportionment, the proprietors have waived it, by receiving the damages awarded, and suffering the company to go on and build the road, and treat the right of way as legally obtained. To permit them now to retain those damages and recover back the land, would clearly be inequitable and unjust, and would operate as a fraud upon the company.
By an act of the general assembly, passed at their May session, in 1849, the New York and Hartford Railroad Company was united with, made part of, and merged in the Hartford and Providence Railroad Company, and the two companies constituted one united company, under the name of the Hartford, Providence and Fishkill Railroad Company, one of the defendants in the present suit.
It is claimed that the franchise of the first mentioned company was not assignable, and that consequently the last named company acquired no title thereto. But there is no just foundation for this claim. It is a very common practice [436]*436for railroad companies to mortgage their roads, and all their franchises, to secure the payment of their bonds; and such bonds, to the amount of many millions of dollars, are now holden by creditors, relying for their security upon the mortgages given by the corporations.
And who- ever heard it claimed that such mortgages were void, and that the mortgagees could acquire no right to the use of the road, without a new assessment of damages ? And if a corporation can mortgage its road, why not transfer it directly? The assignee can acquire no greater interest than the corporation had; but we see no reason, why all that it possessed may not be assigned.
But in the present case, the New York and Hartford Railroad Company has not been annihilated, but merged in, and united with another company, and the two made one company, with a new name. This union does not affect the rights of either company, nor do we see how the land owners are injured by the union. Their land is to be used only for the purpose for which it was taken, and whether used by the original company, or their assignees, cán make little difference with them.
Again, it is said that the committee and the court have found facts not put in issue by the pleadings. They have found that David W. Whittlesey voluntarily divided the sum awarded to him, among his co-heirs, for the purpose of making an equitable distribution, when no such matter was in issue.
The plaintiff, in his bill, alleges that he and his brothers and sisters, as heirs of their mother, were the owners of the land, and that the company had never made him any compensation for his interest. The company, in their answer, say that all the damages, with the exception of the thirty-five cents, were paid over to the heirs of the said Rebecca, of whom he was one. The report merely specifies in what manner the payment was made, and is therefore consistent with the allegations.
It is finally said that the court erred in dismissing the bill [437]*437without passing a bill in form. But the court found the facts, set forth in the report, to be true, and thereupon dismissed the bill. This is in conformity with our practice, and is all the law requires.
In our opinion, therefore, there is no error in the decree of the superior court.
In this opinion the other judges concurred.
Decree affirmed.