
    The Company for erecting and supporting a Toll Bridge with Locks from Enfield to Suffield against The Connecticut River Company.
    On the petition of AB. and others, for liberty to erect a toll bridge across Connecticut river, at a certain place^between Enfield and Suffield, shewing that a bridge might he erected there, without injury to the boat navigation. provided two locks should be made on the East side of the river, the General Assembly, in 1798, incorporated the petitioners, and granted them liberty to eroct a toll bridge, at the place referred to, and to collect from passengers certain rates of toll, also to collect from all persons using said locks thirty-four cents per ton, for the term of one hundred years. The corporators were required, by the charter, to give bonds for the completion of the bridge within a limited time ; and it was then provided, ha Vthe locks should be completed in six years from the rising of the General Assembly in May, 1799, or, on failure thereof, the grant should be null and void. Tho grant was accepted by the corporators ; and the corporation was organized under it. On the application of the company, reciting their grant of a bridge, the General Assembly, in May Í805, extended the time for erecting and completing the bridge until the 1st of June 1808, still requiring them to give bonds to finish the bridge. Upon another application of the company, in May 1806, thetime was further extended to'three years from that time, with the same rights and subject to the same regulations as were granted and provided originally- Before the expiration of this time, viz. in May 1808, the General Assembly, on the petition of the c ompany, authorized them to make a shore channel, in lieu of the locks proviofd in their original grant to be erected. In the same act, the General Assembly declared, that the company were not thereby, in any ¿.respect, excused or restrained from making lucks and canals, at anytime during the continuance of their grant, if tlib, provision of a shore channel should be found insufficient for^the navigation of the river. At the tauno session, the General Assembly appointed a committee to examine the bridge, and the locks and canals, or shore channel, thereto annexed, mm uccpt the same, and authorize the proprietors tot. kc toll. In October 1808, the General Assembly, on the petition of the company,¿stating that a shore channel could not be made but at jan enormous expense, and that its utility was very doubtful, appointed another committee to report what, in their opinion, was the best mode'of erecting the locks so as to subserve the public interest in relation to the navigation of the river, without sacrificing the rights of the petitioners. In October, 1809, that committee made their report to the General Assembly, suggesting the expediency of permitting the postponement of any further proceedings in ¿relation to the navigation of the river, at the place originally designated, until a corporation should appear to undertake the erection of locks both at that place and below the bridge. This report was accepted, by the General Assembly, so far as regarded the facts found by the committee. At the same' session, the General Assembly, on the petition of the company, resolved, that the building of the locks be suspended, and the company discharged from the obligation to build the same, until the further order of the General Assembly ; at the same time, authorizing the petitioners to take the toll prescribed by their charter, for passing the bridge, that being finished, and having been approved by the committee appointed for that purpose. In May 1824, the Genera] Assembly incorporated The Connecticut River Company, authorizing them to remove obstructions from the channels and bars of said river from Hartford to Springfield, and to lock the falls at Enfield on said river, and to make channels to aid them, and to construct a canal on either bank of said river near said falls, &c. Provision was made, by the charter of incorporation, for the assessment and payment of damages done to individuals, by the canal or other works of said corporation. The'Connecticut River Company accepted their grant ; and were collecting materials and were preparing to construct a canal and locks on or near the bank on the West side of Connecticut river passing directly opposite to the place designated for the erection of the locks of the other company, but extending several miles up and down the river. The company first incorporated never gave bonds pursuant to their charter; had never constructed any locks, or other work for improving the navigation of the river ; nor would the locks or other works, which they were authorized to construct, benefit the navigation ; they had suffered their bridge to go down, and sold the piers ; and had suffered their agent to buy up the stock of the company, for sinister purposes. In this state of things, the company incorporated in 1798, brought a bill in chancery for an injunction against the operations of the Connecticut River Company. Held,
    1. That the right of constructing locks, granted by the act of 1798, did not expire at the end of six years from May 1799, but was preserved, in conjunction with the right of erecting a bridge, by the subsequent acts of the General Assembly;
    2. That the failure of the plaintiffs to give the bond directed by the act of 1798, and afterwards by the acts of 1805 and 1806, did not defeat their charter, or cause the right granted by it to cease ;
    3. That the right of ihe plaintiffs to construct locks, had not become extinct, by the surrender ;
    4. That it had not been lost, by non-user or misuser;
    5. That the plaintiffs could not be divested of their franchise, on the ground of its inutilhy;
    6. That the right granted to the plaintiffs, was exclusive, and exhausted the power of the General Assembly in relation to that subject;
    7. That- the grant to the defendantsf as it interfered with and violated the plaintiffs’right, was void ^
    8. That the grant to the defendants was not authorized, on the ground that it provided an indemnity to the plaintiffs ;
    But 9. that the construction of locks was required by the General Assembly, and considered by the plaintiffs, as a burden, from which the plaintiffs sought relief, and obtained it, by the act of 1809, suspending the building of such locks, and discharging the plaintiffs from the obligation to build the same, until the further order of the General Assembly ; and consequently, that the plaintiffs Gannot now exercise the right of erecting locks, without legislative interposition ;
    10. That the plaintiffs not being in the possession and enjoyment of any right, which the defendants are attempting to infringe, the court will not decree an injunction.
    This was a bill in chancery, praying for an injunction against the defendants to desist from proceeding to erect locks and canals, or any other structure for the passage of boats and rafts, on the falls or rapids in Connecticut river, called Mad Tom and Surf bars.
    The cause was heard on the bill and answer, at Hartford, February term, 1828, before Hosmer, Ch. J.
    
      John Reynolds and his associates, inhabitants of the towns of Enfield and Sufiield, preferred a petition to- the General Assembly of this state, in October, 1798, praying for liberty to erect a toll bridge across Connecticut river, near the place called Mad Tom Bar ; shewing, that a bridge might be erected there, without injuring the navigation up and down the river with boats, rafts, &c , provided that two locks be made on the East side of the river, one to carry the boats over Mad Tom Bar, and the other over Surf Bar. On this petition the General Assembly, at the same session, passed an act or resolve, constituting the petitioners a corporation, by the name of The Company for erecting and supporting a Toll Bridge with Lochs from Enfield to Sujfield, and granting them liberty to erect a bridge at the place above-mentioned, and to collect from all persons passing over or using such bridge certain rates of toll, “ and also to collect from all persons passing said locks thirty-four cents per ton which toll they were authorized to collect, for their own use and benefit, for the term of one hundred years, or until they should receive the cost of erecting said bridge and an interest of twelve per cent. It was also resolved: “ That the said John Reynolds and his associates shall give bonds to the treasurer of this state in the sum of twenty thousand dollars, with good and sufficient surety, to the acceptance of said treasurer, that said bridge shall be erected within the time limited in this grant or resolve ; which said bridge so to be erected shall not be less than twenty-five feet wide ; and said locks shall be at least thirty feet wide, so as to admit the passage of rafts and boats, and shall be completed within the term of six years from the rising of the General Assembly in May, 1799, or on failure thereof, this grant shall be null and void.” It was further resolved : “ That during said term of one hundred years, said company shall keep said bridge and said locks in good repair, subject to the inspection of the General Assembly, as often as they shall think proper, by their committee to be appointed for that purpose ; and that no person or persons shall have liberty to erect another bridge any where between the North line of said Enfield and the South line of Windsor.”
    
    At a legal meeting of the company, held soon afterwards, they accepted the charter, and were organized as a corporation under it, by the choice of a president and directors, and other officers necessary to carry into effect the objects of the grant.
    On the application of the company, referring to their grant, so far as it related to the bridge, the General Assembly, in jyayf 1805, passed the following resolve : “ That the petitioners be, and they are hereby, authorized to erect and finish said bridge, on or before the 1st day oí. June, 1808, any thing in the former act of this Assembly, granting to them the privilege aforesaj(]) notwithstanding ; and the petitioners, upon finishing said bridge, by the 1st day of said June, shall have the same rights and privileges, and be subject to the same regulations, and shall have a right to collect the same toll, as are vested in and belonging to them, by the original grant of this Assembly: Provided, That before the petitioners proceed to erect said bridge, they shall give bond to the treasurer of this state, in the sum of twenty thousand dollars, to the acceptance of said treasurer, conditioned that said bridge shall be finished agreeably to the provisions of said original grant.”
    On another application of the company, in May, 1806, stating that there was not sufficient time limited, by the last mentioned grant, to build and finish the bridge, and praying for a further extension of the time, the General Assembly authorized the petitioners “ to erect and finish said bridge within three years from the rising of the Assembly, at their [then] present session,” any thing in the former acts notwithstanding; declaring, that the petitioners, upon finishing said bridge within the time thereby limited, should have the same rights and privileges, and be subject to the same regulations, and should have a right to collect the same toll, as were vested in and belonged to them, by their original grant. To this resolve was annexed a proviso requiring a bond, in the same words as the one annexed to the resolve of May, 1805.
    In May, 1808, the company preferred their petition to the General Assembly, shewing that “ to a grant of the Assembly to said company of a right to erect a bridge from Enfield to Sufi.eld there was annexed a proviso, that the said company shall make two locks on the East side of the river, one to carry boats over Mad- Tom Bar, and the other over Surf Bar ; that the petitioners had begun to erect said bridge, and, on examination, found, that the public would be better accommodated, if a channel were made in the water, near the Eastern shore, in lieu of one or both of the locks provided to be erected in the original grant.” The General Assembly thereupon resolved, “That the aforesaid corporation be, and are hereby authorized and empowered to make a shore channel, by excavating the bed of the river, or in such other way as they shall deem proper, over the aforesaid rapids, in lieu of the locks provided in said grant to be erected. A nd the said corporation shall have the right to demand and receive of all persons passing through said channel the same toll as is granted to them to be taken on passing said locks. The said corporation are not, by this resolve, in any respect, excused or restrained from making locks and canals as aforesaid, at any time during the continuance of their said grant, and receiving the toll to them granted for passing the same, if the present provision shall be found insufficient for the navigation of said river.”
    In the course of the same session, the General Assembly appointed Oliver Mather, Josiah Bissell and Shubael Griswold a committee to examine and inspect the bridge then erecting between the towns of Enfield and Sujfield, and the locks and canals, or shore channels, thereto annexed, and accept the same, and authorize the proprietors thereof to take toll of all persons, who should pass said bridge, locks or channel, and make report to some future session of the Assembly. To this resolve, however, was annexed a proviso, that the right of examining and finally determining, whether the aforesaid locks and canals, or shore channel, be sufficient to answer the purpose intended by the grant to the proprietors, should be reserved to the General Assembly.
    In October, 1808, the company preferred another petition to the General Assembly, representing, that they had nearly completed the building of the bridge ; that it would be finished and ready to be opened in November then ensuing; but that on proceeding to build said locks &c. for aiding the navigation of boats &c. over said falls, they met with unforeseen difficulties, which were of a nature to render advisable the delay thereof until the order and direction of the Assembly could be had thereon ; that upon a careful examination of the falls, it was found that a shore channel could not be made but at an enormous expense, and that its utility was very doubtful; that the engineers united in recommending the building of a lock or locks, instead of making a shore channel, and in order to fill the locks, either to erect a dam across the river, or to make wing dams ; that the petitioners entertained doubts whether they had a right to erect a dam of any kind, without a special 21-ant for that purpose ; praying for the appointment of a skilful and judicious committee to view and examine, at the expense of the petitioners, the said falls, and report to the General Assembly, at their next session, what, in their opinion, is the best mode of erecting said locks &c. in order to subserve the public interest as to the navigation of said river by boats &c., without sacrificing the rights and interests of the petitioners ; and that the General Assembly, at their next session, would order and direct, that as soon as said bridge should be finished, and approved by the committee appointed for that purpose, the petitioners be authorized to take the toll prescribed by their grant of passengers. On this petition, the General Assembly appointed Asher Miller, Shubael Griswold and Eli Whitney a committee, at the expense of the petitioners, to view and examine said falls, and hear all persons concerned, and report to the Assembly in May then next, what, in their opinion, is the best mode of erecting said locks, &c. in order to subserve the public interest, as to the navigation of said river by boats &c., without sacrificing the rights and interests of the petitioners. The General Assembly also authorized the petitioners, as soon as they should have finished the bridge, and the same should be approved by the committee appointed for that purpose, to take the toll prescribed by their grant, until the rising of the Assembly in May then next.
    In May, 1809, Asher Miller, Eli Whitney and Shubael Griswold were reappointed a committee, for the same purposes and with the same powers, as before; and were directed to report to the then next session of the General Assembly ; and in the mean time, the petitioners were authorized to take toll of passengers crossing the bridge.
    In October, 1809, this committee made their report to the General Assembly, expressing their opinion, that the most eligible method of rendering the navigation over Surf and Mad Tom Bars safe and easy, was by one lock only on the Eastern bank of the river; and that the only practicable method (within any reasonable bounds of expense) of erecting such lock, was by extending a dam across the river at or near Mad Tom Bar, of such height as to overcome the rapids at the top of Surf Bar. In the same report, the committee further say, that they had become satisfied, that the erection of a lock, which would enable boats and rafts to pass over Surf and Alad Tom Bars, with ease and safety, would become an object of much greater public utility, provided a similar lock was, at the same time, erected at the falls below the bridge. They conclude the report thus : “ Having viewed the falls below the bridge, we perceive no difficulty in constructing a lock there, in the same manner as proposed for making the lock above ; and we believe, that erecting a lock at each fall, at the same time, would lessen the aggregate expense of navigating the river, and be a work of public utility. Your committee, therefore, beg leave respectfully to suggest, whether it may not be expedient to permit the postponement of any further proceedings relative to the improvement of the navigation at Surf and Mad Tom Bars, until a corporation shall appear to undertake the erection of locks at both the upper and lower falls.” This report was accepted and approved, by the General Assembly, so far as regards the facts found by the committee.
    On a petition of the company, stating their charter of incorporation, the subsequent extensions of the time limited for building the bridge, the resolve of May 1808, the appointment and re-appointment of the committee, in October 1808 and May 1809, and the report of this committee, with the vote of acceptance thereof, the General Assembly, in October 1809, resolved as follows : “ That the building of locks upon said falls, called Mad Tom Bar and Surf Bar, by said company, be suspended, and said company discharged from the obligation to build the same, until the further order of this Assembly “ That the petitioners be authorized to take the toll prescribed by their charter, of passengers crossing said bridge, the same being finished, and having been approved by the commitee appointed by this Assembly for that purpose.”
    In October, 1818, the General Assembly, on the petition of John L. Sullivan and his associates, passed an act, incorporating them, by the name of The Proprietors of the Enfield Locks and Channels, for the purpose of constructing locks, dams and channels at Enfield falls. The 2nd section of this act provided : “ That the proprietors of Enfield bridge shall be again authorized and empowered to lock the upper part of Enfield falls, called Mad Tom and Surf Bars; provided a majority of the proprietors shall, within thirty days from the rising of this present Assembly, pass a vote, and take measures to carry the same into effect without delay ; or otherwise, shall, at their option, have a right to subscribe in proportion to their present ownership, for one half the shares in the locks and channels: Provided they shall subscribe within thirty days from the time that public notice shall be given by said Sullivan, in two newspapers printed in Hartford, that such subscription is opened.” The 6th section contained the following provisions: “ If the said proprietors, whether at the upper or lower falls, shall suffer them to fall into decay and become useless, and the same shall so continue during two successive summer seasons, this act shall cease and be void. And if the said falls shall not be rendered conveniently navigable within three years from the passage of this act, the same shall be null and void.”
    In May 1824, the General Assembly, on the petition oí John T Peters and others, constituted them, with all such persons as might be associated with them, a corporation, by the name of The Connecticut River Company, for the purpose of improving the boat navigation of that river. The 7th section of this act has the following provisions : “ That said corporation, for the purpose of widening the channel of said river, and deepening the same, shall have power to dig, cleanse and remove obstructions from the channels and bars of said river, from and above the bridge at Hartford, to Springfield, and to erect and build wharves and piers and hedges in said river, or on the banks thereof, as they may judge necessary. And said corporation are empowered to lock the falls at Enfield on said river, and to make channels to aid them, and to construct a canal on either bank of said river, near said falls, and to construct a dam or dams, for the purpose of entering and leaving the locks in still water ; provided the extensions and form thereof shall be such as not to prevent the convenient passage of boats and lumber down the river, nor obstruct the passage of fish. And said corporation shall have right to procure and possess any steam boat or boats, which they may judge necessary to increase commerce on said river.” The 11th section authorized the corporation to purchase and hold so much real estate for making said locks, canal and dams as might be necessary or convenient ; also, to purchase and hold such mill or mill-seat or manufactories upon or adjacent to Enfield falls, as they might judge expedient, and the same to lease or alien. The 12th section contained the following provision : “And the commissioners (after notifying the parties, if practicable) shall assess the damages done to individuals, by the canal or other works of said corporation, and make regular entries of all their determinations or appraisals under this act, in a book to be kept for that purpose : which damages, thus assessed, shall be paid by said corporation, within six months after the same shall be finally established.”
    The plaintirfs exhibited in evidence a certificate of the committee appointed in May 1808, accepting the bridge. They also exhibited a vote of the company appointing Rufas Gran-ger an agent to prosecute the present suit against The Connecticut River Company; also, to receive a deed or deeds of land to enable the plaintiffs to rebuild their bridge. The plaintiffs likewise adduced in evidence a deed, dated June 20, 1827, of a piece of land opposite Mad Tom and Surf Bars, for the purpose of proving, that they had made, and were making preparations for the' building of said locks.
    
      The Connecticut River Company accepted the grant of the General Assembly, and organized themselves under it. When this suit was brought, they were collecting materials and preparing to construct a canal and locks, on or near the bank on the West side of Connecticut river, directly opposite to the place granted and designated for the erection of the locks by the plaintiffs ; but it appeared, that the canal and works of The Connecticut River Company, although in part opposite to the place for 'erecting the locks by the plaintiffs, were of several miles extent, up and down the river.
    To sustain averments of the same effect in the defendants' answer, they offered evidence to prove, 1. That the plaintiffs never complied with their grant or charter, by giving bond to the treasurer to build the bridge ; and hence the defendants contended, that the grant was annulled. The court was of opinion, that the bridge having been accepted, this evidence w as irrelevant.
    2. The defendants offered to prove a sale of the piers of the bridge, and a non-user of the plaintiffs’ right. This evidence the court rejected, on the ground that it was not competent to the court, in this suit, to repeal or annul the plaintiffs’ grant, or decree a forfeiture of the right, and hence that such evidence was irrelevant.
    3. That the locks to be erected by the plaintiffs would be of no public use or benefit. This evidence also the court rejected, on the ground that the General Assembly had decided, and was alone competent to decide, that question.
    4. That the bridge in question has not been in existence for ten years past. This evidence also the court rejected, on the ground that it had no bearing on the rights of the plaintiffs, nor on the legal propriety of an injunction, founded on an exclusive right, and to prevent irreparable injury.
    5. That Rufus Granger had purchased in the shares of stock in the company, by false and fraudulent representations to the stockholders, for sinister purposes, without any intention of proceeding in the accomplishment of the objects of the grant to the plaintifis. This evidence also the court rejected, on the ground that the facts, which it conduced to prove, were irrelevant to the questions on trial.
    6. That neither the locks authorized by the act of 1798, nor any works for improving the navigation of the river, had been built ; and that such locks, if built, would not benefit the navigation. This evidence also the court rejected, on the ground that it was irrelevant, until the plaintiffs should endeavour to prove the converse of it; that their right was not affected, by the omission ; and that any enquiry concerning the utility or benefit of the locks, was inadmissible.
    The case, comprising the matters above stated, was reserved for the advice of this court, on all the questions arising thereon — particularly, w'hether the determinations of the court in rejecting the evidence offered by the defendants, was correct ; and whether the plaintiffs are entitled to any decree : and if any, what the decree shall be.
    
      N. Smith and W. W. Ellsworth, for the plaintiffs,
    contended, 1. That the plaintiffs had an indefeasible right to the privileges claimed by them, by virtue of their charter of incorporation and the subsequent acts of the General Assembly. The grant constituted a contract, the parties to which were the State, on the one hand, and the individuals who accepted the act of incorporation, and assumed the liabilities incident thereto, on the other. That the right of constructing locks and taking toll, at Enfield falls, was granted to the plaintiffs originally, is undeniable, and will not be controverted. What, then, has taken place since, to defeat their right ? It is said, that certain conditions were annexed to the grant, which have not been performed. The conditions were, 1st, that a bond should be given to secure the erection of the bridge, in a limited time ; 2ndly, that the bridge and locks should be built by May 1805.
    With regard to the bond, the substance of the condition has been performed, by the completion of the bridge itself, and by the acceptance of it, by the General Assembly, in full perform-anee. And with respect to the erection of locks, the company were, by the act of 1809, discharged from the obligation of the condition “ until the further order of the General Assembly and consequently, may proceed to build them now, or at any time during their corporate existence, unless the General Assembly shall fix upon some particular time for their erection. Besides, the bridge and locks are considered throughout as one thing ; and the extension of time as to one, is an extension as to the other.
    But, if these conditions have not been performed, the grant is not of course determined A franchise can only be determined, 1st, by limitation of time; 2ndly, by surrender under the corporate seal; or 3rdly, by judgment or process of quo warran-to. Slee v. Bloom, 5 Johns. Chan. Rep. 379. None of these things have taken place.
    Further, the grantor alone may take advantage of a condition broken ; and this must be done by an entry, or some act of equal solemnity. Chalker v. Chalher, 1 Conn. Rep. 79 The grantor may also waive the breach of a condition. The Commonwealth v. The Un on Fire and Marine Insurance Company, 5 Mass. Rep. 230 A stranger cannot make this objection.
    2. That the right granted to the plaintiffs was exclusive ; and the act of 1824, granting the same right to the defendants, is void, being an infringement of the contract made with the plaintiffs. The object of both grants is the same, viz. to improve the boat navigation of the river, and the exercise of the right granted to one party, will necessarily impair the value of that granted to the other. The fact that the defendants’ works are to be the most extensive, taking in boats and rafts above and below the plaintiffs’ works, only shews, that they will be the more injurious to the plaintiffs. Their right is like that of ⅝ fair, market or ferry, at a particular place. It is, in its nature, exclusive. It follows, that the grant to the defendants, is utterly void. They are acting without the authority of the General Assembly. The King v. Amery, 2 Bro Pari. Ca. 336. (Toml. ed.) Dartmouth College v. Woodward, 4 Wheat. 518. The Newburgh and Cochecton Turnpike Company v. Miller & al. 5 Johns Chan. Rep. 101. 2 Swift’s Dig. 140, 1.
    3. That the plaintiffs are entitled to the relief sought. If the charter of the defendants is void, it is clear, that they are guilty of a statute offence Their works are also a private nuisance. In such cases, courts of equity will interpose, by injunction. Livingston & al. v. Van Ingen & al. 9 Johns. Rep. 506. The Newburgh and Cochecton Turnpike Company v. Miller & al. 5 Johns. Chan. Rep. 101. 2 Swift’s Dig. 140, 1.
    The defendants cannot set up any equitable reason why they should be permitted to enjoy the privilege of erecting a nuisance, in violation of a legal private right. Nor can these works be justified, on account of their affording to the public a benefit. The public have no interest in supporting a nuisance. Suppose the individuals, who are constructing these works, did not offer any charter, (and a void charter is no charter) but merely claimed that they were acting for the public benefit; could there be any pretence of a justification on this ground, or any doubt of the propriety of the court’s interfering ?
    4. That the evidence offered by the defendants, was properly excluded.
    That which related to the bond, has already been considered.
    As to non-user : In the first place, the General Assembly acquiesced in the delay. But aside from this, the non-user did not work a forfeiture of the grant; and even if it might have that effect, this is not the way to get at it.
    Similar remarks are applicable to the alleged misuer, and to Granger’s speculation in the stock of the company. These facts, if proved, would not authorize a court of chancery, on an application for an injunction, to vacate the plaintiffs’ charter ; and if the plaintiffs’ right remains, they are clearly irrelevant.
    As to the inutility of the plaintiffs’ franchise: Does their right depend upon the question whether their franchise is more or less valuable. Is this the test of a man’s title to his farm ? Can the legislature take A’s property from him, and give it to B., because B. would make a better use of it ? If this enquiry could be made, there could be no possible case where the legislature might not impair and defeat its own contract. — It is enough for the plaintiffs to say, “this franchise is ours.”
    
    
      Sherman and T. S. Williams, for the defendants,
    contended, 1. That no right was ever legally vested in the plaintiffs to make the locks. The petitioners asked for a bridge ; and they wanted nothing else. The General Assembly were apprehensive, that a bridge might injure the navigation, and to guard the public interest, in this respect, they subjected the company to the burden of constructing locks for the passage of boats and rafts. No liberty is given to make locks ; but the plaintiffs are required to make them ; an onerous condition is imposed ; and a small toll is allowed as a partial remuneration.
    2.That if the grant in question was the grant of a right, it was still a limited one, which expired in 1805, or at farthest, in 1809. The same act which conferred the grant, declared, that if the locks should not be completed within six years from May 1799, the grant should be null and void. No stronger language could be used, to signify, that the privilege granted should cease.
    
    
      “ Void” means absolutely void, and not merely voidable. Nothing short of this will satisfy the plain import of the terms used, or effect the object of the legislature. The acts of 1805 and 1806 extending the time, related to the bridge only ; but if the locks are to be considered as included, the extension went no further than 1809.
    3. That the grant to the plaintiffs became void, on their failure to comply with the condition on which it was made, viz. of giving bonds to the treasurer of the State. The facts must now be taken to be what the evidence offered by the defendants would have proved, if it had been received. The bond was required to secure the public against the damage, which might result, from obstructing the passage in a navigable river. It is apparent from the nature -and object of the provision, that this was intended as a condition precedent. The plaintiffs had no right to put a stone into Connecticut river, without having complied with this condition.
    4. That subsequently to 1805, there was no origination of right to construct locks. This appears from an inspection of the acts of the General Assembly. To effect the grant of a franchise, something more is necessary than the assumption of its existence.
    5. That if any right in relation to the locks remained in the plaintiffs until October 1809, it was then, on the application of the plaintiffs, suspended until the further order of the General Assembly. Ey the application for this act of suspension, the plaintiffs offered to make at least a qualified surrender of their grant; and the General Assembly accepted the offer. This is the most favourable aspect of the case for the plaintiffs. The exact truth is, that the General Assembly had imposed a burden upon them ; they petitioned to be relieved from it; and the General Assembly relieved them accordingly. In either point of view, they now have no right, which they can exercise, without legislative interposition.
    6. That the grant to the defendants is not void. In the first place, it is not a direct interference with, or an invasion of, the right of the plaintiffs; but was fairly made, for the accomplishment of great public objects, which would otherwise be unattainable. Here it may be admitted, that the thing granted to the plaintiffs, is granted to them exclusively, and cannot be granted to any one else. But the General Assembly do not guaranty a monopoly in every grant. A monopoly is never to be taken by construction. So far as the express terms of the grant go, it is exclusive; but no further. If the legislature grant a bank, a lottery, or a turnpike road, the grantees become vested with an indefeasible and exclusive right to the thing granted ; but this will not preclude the legislature from granting other banks, lotteries or turnpike roads, though the value of former grants will thereby be considerably impaired. Secondly, the grant to the defendants provides compensation for damages done by their works. Admitting, then, the grant to the defendants to be an infringement of the plaintiffs’ right, it is a case of private property taken for public use, by making just compensation, or, it is, at least, within the principle of such a case.
    7. That as the right claimed by the plaintiffs is at best doubtful, depending upon questions of fact as to a surrender by them of their grant, and as to the public importance of the grant to the defendants, which can be tried only by a jury ; as the defendants are doing no irreparable injury, and indeed no legal injury at all, to the plaintiffs ; and especially, as the plaintiffs are not in the actual possession and enjoyment of the franchise claimed by them ; this is not a proper case for the summary relief by injunction. Whitchurch v. Hide, 2 Atk. 391. Storm v. Afpnn, 4 Johns. Chan. Rep. 21, 2. The Attorney General v. The Utica Insurance Company, 2 Johns. Chan. Rep. 371. Hill v. Thompson, 3 Meriv. 622. Harmer v. Plane, 14 Ies. 132. The Croton Turnpike Company v. Ryder, 1 Johns. Chan. Rep. 615. Eden on Injunc. 167. 187.
    8. That the evidence of nonuser, inutility, laches and fraud, offered, by the defendants, was relevant and proper, to shew, that the plaintiffs were not entitled to an injunction, if not to shew a forfeiture or abandonment of their right.
   Hosmer, Ch. J.

The first enquiry in the case regards the title of the plaintiffs averred in their bill. As they were explicitly authorized, by their charter of incorporation, to erect locks and to collect toll, it is only necessary, in conducting this enquiry, to consider the objections made by the defendants.

In the first place, they say, that" the locks, by the original grant, were to be executed within six years from the rising of the General Assembly, in May, 1799 ; and that the prolongation of this period afterwards, had relation to the bridge only. This objection is manifestly without any foundation.

It is admitted, that the resolves alluded to, literally had reference to the bridge only; but in their spirit and meaning, they equally extended to the locks. From the act of October, 1798, it appears, that the erecting of a toll bridge was connected with the erection of locks in subserviency to it, in order to avoid injuring the navigation of the river. It was stated to the General Assembly, that the otherwise pernicious effects of the bridge on the navigation, would be effectually prevented, provided the two locks were made ; and hence the building of the locks was a material motive for the grant of the bridge. The General Assembly never intended to hazard the great interests of navigation, by permitting the erection of a bridge only. The locks were designed to be coexistent with the bridge, in order to correct any ill consequences resulting from this measure. Hence, when the period for building the bridge was extended, the erection of the locks, as an indispensable adjunct, was likewise extended.

The whole of the proceedings of the General Assembly exhibit the most incontrovertible evidence of this truth. Upon the construction of the defendants, the right to erect the locks expired in May, 1805 ; and yet in 1808, we find the General Assembly authorizing the excavation of the river in lieu of the locks. Of what locks, it may be asked. Of those locks, the right to erect which, on the defendants’ construction, had expired three years before. Nor is this all. In the same act, it is declared, by the General Assembly, that “the said corporation are not, by this resolve, in any respect, excused or restrained from making locks and canals as aforesaid, at any time during the continuance of their said grant, and receiving the toll to them granted for passing the same, if the present provision [by excavation] shall be found insufficient for the navigation of said river.” This is a clear recognition of the right to erect the locks, as existing at that time. But, if it did exist, it was only by force of the resolve extending the time for building the bridge. At the same session of the General Assembly, Oliver Mather and others were appointed to inspect the bridge and the locks and canals, or shore channel, thereto annexed, and to accept the same. This is another recognition of the plaintiffs’ right to build and enjoy the locks. We find the General Assembly afterwards, in October of the same year, on the request of the plaintiffs, appointing Asher Miller and others a committee to report what, in their opinion, was the best mode of erecting the locks to subserve the public interest, without sacrificing the rights and interests of the plaintiffs. If it is asked, what rights, the answer is obvious ; the rights of the plaintiffs to build the locks, derived from the act of 1798 ; for they had no other. The committee reported the erection of another lock, at a different place, and that instead of the locks over Mad Tom and Surf bars, there should be one lock only on the Eastern bank of the river. This report was, so far as relates to the facts found by the committee, accepted ; and it was resolved, that the building of locks upon the falls, by the said company, be suspended, and that the said company be discharged from the obligation to build the same until the further order of the Assembly. Thus, in October, 1809, the right of the plaintiffs to erect the locks, was again acknowledged, and the building of them, for a time, was suspended ; but neither their right, nor the obligation, to build, was discharged. The argument of the defendants On the resolve just cited, is founded on a departure from the plain words used by the General Assembly. Had the expression been, the right of the company is suspended, until the further order of the General Assembly, the comment would have been just, if the Assembly had authority to pass the resolution. But the words are, that the building — not the right to build — be intermitted ; and were obviously intended, in view of the existing doubts as to the best mode of erecting the locks, to relieve from an obligation, and not to terminate a right. The General Assembly had no authority, innate or derived, to impair the rights of the plaintiffs; nor have they attempted it. No order to build the locks has yet been issued ; and the rights of the plaintiffs remain, unless some other consideration may affect them, precisely what they Were in 1809. They have authority to build the locks, originating by grant in 1798 ; preserved by repeated acts, prolonging the period for erecting them ; recognized, by the General Assembly, over and over again, until the year _ 1809 ; and then the actual exercise of the right by building, was permitted to be in suspense until further direction.

It was objected, in the next place, that the plaiatiffs did not give bond to erect and finish the bridge pursuant to the charter ; that this was a condition precedent ; and that, by reason of this omission, the plaintiffs have acquired no right, or at least, have forfeited the right before acquired.

This objection has been argued for the defendants, by the application of an inapplicable legal position, and by a recurrence to the most technical principles of the common law. The condition, (if such it may be called,) was not precedent to the plaintiffs’ right. The charter constituted them a corporation, and conferred on them a franchise. Before they could proceed to the actual exercise of that part of the right confer-I'ed, they were to give bond ; but she bond was to be given subsequently to the title granted. Besides, no person could take advantage of the omission to give bond but the General Assembly ; and per se it worked no forfeiture ; the effect of a subsequent condition broken being only to render an estate de-feasible at the option of the grantor. Vid. Chalker v. Chalker, 1 Conn. Rep. 79. The breach may always be waived ; and this may always be done expressly, or by impiication. In this case, the breach of the supposed condition was constructively waived, by the acceptance of the bridge, as well as by the various resolves prolonging the time for the erection of it. Thus the case would stand at common law ; but in chancery, the breach of a condition, whether precedent or subsequent, is always relieved against, if compensation can be made. Hayward v. Angell, 1 Vern. 222. 2 Cruise’s Dig. 40. & seq. Walker & al. v. Wheeler & al. 2 Conn. Rep. 299. If, therefore, there had been no waiver of the breach of the condition, and a bridge had been built, in all respects, pursuant to the charter, a court of chancery would not hear an objection so inequitable as the one made concerning the locks.

It has been also urged for the defendants, that the plaintiffs have extinguished their franchise, by surrendering it to the General Assembly. That a corporation maybe dissolved, and its franchises relinquished, by a surrender of record, is not disputed ; (2 Kent’s Comm. 250.) but the surrender must be accepted by government. In this case, there has neither been a surrender, nor the acceptance of a surrender. The application by the plaintiffs to the General Assembly, praying the appointment of a committee to view and examine, at their expense, the falls in the river, and to report their opinion as to the best mode of erecting the locks, was made with this express reservation, that their rights and interests were not to be sacrificed. And on the coming in of the report, the General Assembly merely suspended the building of the locks, and relieved the company from an obligation to build until their further order. But their right to build the locks remained, and was exercisable at their pleasure.

The objection of waiver by the plaintiffs, in another part of the case, may be very essential; but though a corporation may be dissolved, by non-user or misuser, and its franchises lost, yet the default must be judicially determined in a suit instituted for that purpose. The King v. Amery, 2 Term Rep. 515. Slee v. Bloom & al. 5 Johns. Ch. Rep. 366. 379. 380. Terrell & al. v. Taylor & al. 9 Cranch 51. The Commonwealth v. The Union Fire and Marine Insurance Company in Newburyport, 5 Mass. Rep. 230. So far as this Court can enquire, that nothing has been done or omitted to impair or destroy the plaintiffs’ title under the charter, I. hold to be extremely clear. Assuming the right of the plaintiffs to the franchise before mentioned, I am brought to consider the second point in the case.

2. The defendants were incorporated, in May, 1824, with power to lock the Enfield falls, and have organized themselves. They are collecting materials, and preparing to construct a canal and locks, on or near the bank, on the West side of Connecticut river, directly opposite to the place granted and designated for the erection of the locks, by the Enfield Bridge Company. They claim a right to do this, on several distinct grounds. Two of them have already been disposed of, viz. that the plaintiffs have no title, and that they have forfeited their grant by non-user or misuser.

The defendants assume it as clear, that the locks are no privilege to the plaintiffs, but a burden imposed on them ; and that a prior act of the General Assembly to incorporate John L. Sullivan and his associates, in subversion of their franchise, received their assent.

It belongs to the plaintiffs to determine, whether the erection of the locks, which they are empowered to erect, will, or will not, be a burden ; nor are there materials before the court, if the enquiry were relevant, fully to decide on this point. It _ is a part of their franchise ; and Rom all persons massing through their locks, they are authorized to take foil. Prima facie, it is a privilege, and may be very valuable ; and in all events, it is a right with which they are invested. As to Sullivan’s incorporation, it was a transaction to which the plaintiffs are strangers ; to which, so far as the facts found authorize an opinion, they never assented ; and which appears to have been unconstitutional and void.

It is contended by the defendants, as the superior court rejected the testimony offered, to prove, that the locks of the plaintiffs would be of no public use or benefit, that this fact should now be taken for granted, so far as relates to the determination of this court. The principle is sound, but of no effect ; as it matters not whether the public will, or will not, derive an advantage from the plaintiffs’ grant. The plaintiffs stand on their right to a franchise duly conferred ; and to rescind or impair it, the General Assembly is not authorized. Such considerations, said the late Chancellor Kent, in The Newburgh and Cochecton Turnpike Company v. Miller & al. 5 Johns. Chan. Rep. 109. I shall lay out of view, as altogether inapplicable to the question of right; the plaintiffs are in possession of a franchise or statute privilege, of which they cannot be divested, by such considerations.

That the bridge has not been in existence for ten years past, is made a further objection; but it has no bearing on the title of the plaintiffs. This non-user, if it is claimed to be a forfeiture, as has already been shewn, must be judicially determined in a suit instituted for that purpose. It is not the subject of enquiry, so far as regards the plaintiffs’ title, in the case before us. The same answer is applicable to the misuser, by the speculation of Granger, in the purchase of stock, and to the other facts offered in proof, to shew an abuse of the plaintiffs’ privilege.

It has been insisted, that the charter to the Connecticut River Company is constitutional; that it does not interfere with the plaintiffs’ grant, or at least, only in a degree so re-moté, that the General Assembly, in promotion of the public good, was authorized to make the grant; and even that the franchise of the plaintiffs may be taken away, on sufficient indemnity.

To each of these suggestions I will briefly reply.

It is quite too late to maintain, that a state, by its law or charter, can impair the obligation of a contract. The prohibitory clause in the constitution of the United States, is conclusive on this subject. A grant is a contract within the meaning of the constitution. The point is fully settled, that a legislative grant, competently made, vests an indefeasible and an irrevocable title. Nor can the legislature repeal statutes creating private corporations, and by such repeal, or by grant without such repeal, vest the property in others, without the consent or default of the corporators. Both the letter and the spirit of the constitution of the United States are violated, by such a proceeding, as well as the fundamental principles of natural justice and of the social compact. Thus far, there exists no controversy. Fletcher v Peck, 6 Cranch, 87. The State of New-Jersey v. Wilson, 7 Cranch, 164. Terrett & al. v. Taylor & al. 9 Cranch, 43. Dartmouth College v. Woodward, 4 Wheat. 518.

But a legislative grant is open to construction ; and its obligation mustbe-ascertained, by the plain meaningofits expressions, in reference to the subject matter of the contract. Every grant is exclusive within the boundary of its obligation and extent, and may not be impaired, in the minutest degree. It is not a principle, that a grant may be infringed upon, if the variation be not great. As every variation violates, small injuries are as much prohibited as larger ones ; and the least right is as anxiously protected as the greatest. Green & al. v. Biddle, 8 Wheat. 1 When, however, a grant of any franchise is made, it will be carried no further than a just construction of it will warrant. Hence, a turnpike or a ferry may be granted at such distance from one that is prior in time, as the public good requires ; if it appears on a just exposition of the first grant, that there is no interference within its limits. In The Newburgh and Cochecton Turnpike Company v. Miller & al. 5 Johns. Chan. Rep. 101. it was justly said, by Chancellor Kent, “ that no rival road, bridge, ferry, or other establishment of a similar kind, and for like purposes, can be tolerated so near to the other, as materially to affect or take away its custom. It operates as a fraud on the grant, and goes to defeat it. The consideration, by which individuals are invited to expend money upon great, expensive and hazardous public works, as roads or bridges, and to become bound to keep them in constant repair, is the grant of the right to an exclusive toll. This right, thus purchased for a valuable consideration, cannot be taken away, by direct or indirect means, devised for the purpose, both of which are unlawful.” These principles, emanating from high authority, are equally just and sound, and their application is clear and obvious. If the works contemplated by the Connecticut River Company are constructed, they cannot fail to be injurious to the plaintiffs’ franchise ; and at least, must materially affect and take away their custom, and diminish the toll they otherwise would receive. The point is too clear to stand in need of remark. I will only observe, that the grant to the plaintiffs was intended to confer on them a right to all the toll for facilitating the passage across the bars before-mentioned ; and the subsequent grant to the Connecticut River Company was for the same purpose. The latter grant, from its extent, receiving persons into the canal proposed to be made, at a superior point, would engross the custom, and nearly annihilate the toll receivable, by the Enfield Bridge Company

Whether the grant to the plaintiffs may be taken away, on suitable indemnity, in order the better to accommodate the public, is a point on which no opinion is necessary. No legal indemnity has been provided ; nor have the public a right, where there is no existing law obligatory on the person invested with property, to take away his estate, on their own ideas of a fit indemnity. In such case, the public is only an individual treating with an individual; and a provision, in some just and adequate manner, for compensation, is a necessary attendant on the due and constitutional exercise of the power of the lawgiver to deprive an individual of his property without his consent. Gardner v. Newburgh & al. 2 Johns. Chan. Rep. 162. Vid. 2 Kent’s Comm. 275.

Now, what is the supposed indemnity ? It is in the act incorporating Sullivan and others, if any where. This act affects to consider the right of the plaintiffs at an end, and proposes to reinvest them with the franchise of locking Enfield falls, if within thirty days from the rising of the General Assembly, a majority of the proprietors should pass a vote, and take measures to carry the same into effect without delay. If this new grant is not accepted, the plaintiffs have the option given them of subscribing for one half of the shares in the new corporation. In effect, the plaintiffs, in lieu of their franchise, are permitted to purchase the moiety of an equivalent franchise, and to become associates with strangers. If the grant-to Sul-i{van ancj others were of any validity, to call the above provision an indemnity, would be an abuse of language.

Qn whole, I entertain no doubt, that the title of the plaintiffs exists; and that under the charter of 1824, the defendants acquired no right to do the acts they contemplated.

3. The question then arises, whether a court of chancery will, on the facts in this case, decree an injunction.

I put out of consideration the argument founded on irreparable mischief. The acts contemplated by the defendants cannot be destructive of the plaintiffs’ franchise, or injure it beyond reparation, but is susceptible of a perfect pecuniary satisfaction. So long as the intended canal should exist, and be in operation, the franchise of the plaintiffs, when in actual enjoyment, would be of little worth. But when the operation of the canal should be made to cease, an event entirely practicable, the damage of the plaintiffs would cease likewise.

An injunction is not ex debito justifies for an injury threatened or done to the estate or rights of a person ; but the granting it must always rest in sound discretion, governed by the nature of the case. Roberts v. Anderson, 2 Johns. Chan. Rep. 202. If the right is not doubtful, an injunction will always be granted to secure the enjoyment of a statute privilege, of which the party is in the actual possession. Livingston & al. v. Van Ingen & al. 9 Johns. Rep. 507. 587. The Croton Turnpike Company v. Ryder & al. 1 Johns. Chan. Rep. 611. The Newburgh and Cochecton Turnpike Company v. Miller & al. 5 Johns. Chan. Rep. 101. Ogden v. Gibbons, 4 Johns. Chan. Rep. 150. On a careful examination of all the cases cited by counsel, and of others bearing on the same point, I do not find, that chancery has gone beyond this limit. To prevent or suppress an act, in the cases alluded to, that by possibility may be injurious in future, short of irreparable damages, I am not aware that chancery has ever interposed. In the case of The Newburgh and Cochecton Turnpike Company v. Miller & al., of The Croton Turnpike Company v. Ryder & al., of Ogden v. Gibbons, of Belknap & al. v. Belknap & al, 2 Johns. Chan. Rep. 463., of Livingston & al. v. Van Ingen & al. 9 Johns. Rep. 507. and those referred to in the 2nd vol. of Swift’s Digest 140, I., all of which were cited for the plaintiffs, the injunctions were for damage to the persons, who were in the actual enjoyment of the estate affected. To the same effect there have been other determinations. Bush v. Western, Prec. Chan. 530. Anon. 1 Ves. 476. Harrier v. Plane, 14 Ves. 132. Hill v. Thompson & al. 3 Meriv. 622. These decisions are all highly just and reasonable. To restrain multiplicity of suits, and prevent immediate damage to a statute privilege, is the exercise of a sound discretion. But to prevent future damage that by possibility may arise, when the plaintiff is not in the possession or enjoyment of a franchise, and perhaps never may be, a court of equity is not called upon to exercise its extraordinary powers. On the same principles, it was observed by Lord Hardwicke, in the case of Coulson v. White, 3 Atk. 21., that every common trespass is not a foundation for an injunction, when it is only contingent and temporary.

In an anonymous case in 1 Yes. 476. an injunction was denied, to restrain the defendants from using ferry-boats on the river Tyne, because the plaintiffs had not shewn, that they had kept up a sufficient number of ferry-boats. Eden 165. And where a party has been guilty of great laches, the court has refused to interpose against the erection of a nuisance. 2 Eq. Ca. Abr. 522. Injunctions are sometimes granted to quiet the possession ; but, in such cases, the party applying must have had peaceable possession of the premises by the space of three years, before the filing of the bill. Eden 240.

In the case before the court, the several grounds of denying an injunction before-mentioned, conspire.

The plaintiffs are not in the possession or enjoyment of their franchise ; and whether they ever will be, is matter of contingency.

The public have a deep interest in the commodious navigation of Connecticut river, and it is peculiarly inequitable, that the rights of a community should be sacrificed, to insure the franchise of the plaintiffs from all possible damage, while they are in the actual enjoyment of it, and have taken no measures to pay the price of their charter. This, however, is not all. Twenty years have elapsed, and nothing has been done, by the plaintiffs, to benefit the navigation of Connecticut river. For this extraordinary degree of laches no apology is derived from the omission of an order, by the General Assembly. No application has been made to them, by the plaintiffs, to turn their attention to this subject. Nor does it appear, that any effectual measures have been taken, or are even contemplated, to bring this lethargy to a termination. A small piece of ground has been purchased, and this is all; except the declarations now made of an invisible intention to do what might and ought to have been done long since.

For the interposition of the court, I discern no justifiable ground, and advise that the plaintiff’s bill be not granted.

Daggett, J.

There are some points presented, in this case, about which I entertain no doubt; as

1. Did the failure of the plaintiffs to give the bond directed by the several acts of October 1798,May 1805 and May 1806, or their neglect to erect the bridge and locks within the time limited, defeat the charter, or cause it to cease ? I think not. These acts are not in the nature of conditions precedent or limitations. They are not dependent on the doing of certain acts, or to cease upon the happening of certain events, like a grant to a certain person, tenant of the manor of Dale, or to a widow until married. They are more like conditions subsequent, of a breach of which the grantor only, or the state, could take advantage. If this be so, then the charter is valid, this objection notwithstanding; for the state has not only not sought to resume the grant directly, but has, in the resolves of May 1808, October 1808, October 1809 and October 1818, recognized this franchise of the plaintiffs — to a certain extent, at least.

2. I see no proof of a direct surrender of the right of the Enfield Bridge Company, if such it may be called, to construct locks. There is evidence of a desire of the company to modify it, and perhaps to be relieved from it as a burden. Of this I shall speak more fully for another purpose.

3. Was the grant to this company exclusive ? On this point I have no doubt. It is not like cases put at the bar of grants of turnpike companies, of ferries, of banks, &c. A grant to a company to construct locks around the bars at the upper falls, exhausts the power of the legislature of locking those falls A grant to another company to lock the same falls, would be a palpable infringement of the first grant. In its nature, it would be to strip the first grantees of essential rights, the power of reimbursing themselves for necessary and heavy expenditures. Such an act would be void, as opposed to common right, and to the constitution of the United States; and it would be the clear duty of the court to disregard it.

4. Could the legislature resume this grant, upon compensation ? I perceive nothing in the case to warrant such an assumption of power. The use of land may be taken for public purposes, by common law, by the constitution of this state, and that of the United States; but I am not aware, that the vested rights of a corporation in a franchise, in the possession and execution of which the public interest may be as well subserved, by one company as by another, can be thus taken. Could the state of Connecticut divest the several banks of their chartered rights, to make room for a state bank ; — unless, indeed, the power be reserved in the grant, as is ' he fact in relation to some of them. Nor am I satisfied, that the act of 1824, under which the defendants claim, does make provision for compensation to the Enfield Bridge Company.

Still important questions remain to be considered ; as

1. On a fair view of the acts of the legislature, can this company proceed to erect locks, without legislative interposition ? I think not. The power given in 1798, so far as it authorizes the construction of locks, imposes it as a burden. This appears by the proviso; and the power now so strenuously claimed is only noticed as to the taking of tolls ; nor is it noticed at all, in the subsequent acts of May 1805 and May 1806. The object of the petitioners for the grant, was a bridge ; and the act is conversant only about a bridge. Locks are noticed only in the acts of 1808 and 1809 with the same view; and in the latter act, the building of locks was suspended, and the company discharged “until the further order of the Assembly.” Obvious, then, is it from the face of the petitions of the Enfield Bridge Company, and the acts of the General Assembly consequent thereon, that the company considered the locks as a burden, from which they sought, and obtained, relief. Hence there appears

2. A reason for their total neglect of these locks ; and hence they are not in the exercise and enjoyment of any right or privilege in relation to locking these falls. This right was indeed granted, or rather, this burden was imposed, thirty years ago, and twenty-six years before a direct grant for this great public object, to the defendants. It lay dormant in the plaintiffs from 1809 to 1824, a period of fifteen years, unless the grant to Sullivan and others, in 1818, can be deemed to revive it. That act was not made at the request of this company, or designed a[[ for their benefit. It treated this company as not operating under their grant.

|n this very brief view of the case, it appears to me, that to grant the injunction prayed for, will be to permit the Enfield Bridge Company to lie by, hold this franchise, and prevent the legislature from authorizing any other company to do what in 1809 was expected, by the state and the plaintiffs, viz. locking both the upper and lower falls. It would be an unwarrantable exercise of power in a court of chancery, under these circumstances, to grant an injunction. The plaintiffs are not in the exercise and enjoyment of any right, which the defendants are attempting to infringe. If they have a strict legal right, let them establish it in a court of law.

Without adverting to many other topics, discussed at the bar, I entirely concur in refusing the injunction

Peters, J. concurred in the views of Judge Daggett.

Brainard, J. was absent.

Lanman, J. concurred in the result; but what were his views upon the particular points discussed, the reporter has not been able to ascertain.

Bill to be dismissed.

The following opinion of the Hon. James Kent, late Chancellor of the State of New-York, upon the principal points agitated in the case of The Company for erecting and supporting a Toll Bridge with Locks from Enfield to Sufiield v. The Connecticut River Company, ante 28 — 54. is inserted here, as an appendix to that case.

CASE.

The Connecticut River Company have submitted for my inspection the fol. lowing documents, viz:

I. The various acts and resolutions of the general assembly of Connecticut, relating to Enfield Bridge and Falls. These acts and resolutions are, 1. The act of the date of the 2d Thursday of October, 1798, which incorporates The Company for erecting and supporting a toll bridge with lochs from Enfield to Sufiield. 2. The act or resolution of the assembly, in May 1805, prolonging the time allowed for finishing the bridge. 3. The act oiy resolution in May 1806. 4. The act or resolution in May 1808. 5. The like. 6. The petition of the company, in October, 1808 ; and a grant of the prayer of the petition. 7. A resolution of the legislature, in October 1808. 8. Resolution of the assembly of May, 1809. 9. A report of a committee on the subject of Enfield Falls, and the acceptance of the same, in October 1809. 10. Resolution of the general assembly of October 1809. 11. An act to incorporate J. L. Sullivan and his associates, in October 1818. 12. An act in addition thereto, in May 1819. 13. An act to incorporate The Connecticut River Company, m May 1824. 14. An act or resolution of May 1826.

II. The copy of the answer in chancery in the suit of The Enfield Bridge Company v. Alfred Smith others, in the superior court of September 1827.

III. A certified copy of several votes of - The Company for erecting and supporting a toll bridge with lochs from Enfield to Sujfieldt at their annual meeting, the 14th of January 1822.

IV. A large map of part of Connecticut River, including Enfield Falls, and certified by commissioners upon oath, the 20th June 1827. Map of Enfield upper falls, on a scale of four chains to an inch.

Upon these documents the following questions have been submitted for toy opinion :

1. Do the existing rights of the Enfield Bridge Company present a constitutional obstacle to the making and using of the canal undertaken by The Connecticut River Company ?

2. Is this a case for an injunction in favour of the Bridge Company, while they have neither made, nor commenced making, locks ?

OPINION.

In answer to the first question, I would preliminarily observe, that I was consulted by the Enfield Toll Bridge and Loch Company, in August 1826, and such parts of the acts and resolutions of the legislature of Connecticut as are referred to in 1. 2. 3. 4. 5. 8. 9. 10 and 14. of the first branch of the preceding case, were the ground of an opinion that I then gavfe, in which it appeared to me, that the Enfield Company were still entitled to erect the two locks at Mad Tom and Surf Bars, mentioned in the acts referred to ; and that the right had not been destroyed or impaired.

Whether that opinion would have been given, if I had seen, or had my attention directed to all the documents now referred to, in the above case, may be questionable. I presume, I intended to found it entirely upon the documents which I stated in the case I drew. Some of the documents now re^ fefted to under the first head, and which, by being in print, are brought more readily and accurately to a comprehensive view, and particularly the document referred to as III., being the resolution of the company in 1822, do undoubtedly present a different view of the subject.

But I neither wish nor intend to weaken or impair the force of the opinion which I formerly gave, in reference to the documents upon which it was founded. The case now before me may be considered in coincidence with my former opinion ; and my present opinion will be grounded on the entire new state of the case, and questions and rights altogether distinct from the former.

1. Question. — Do the existing rights of the Enfield Bridge Company present a constitutional obstacle to the making and using of the canal undertaken by The Connecticut River Company ?

Answer. — The Enfield Company rights had reference, essentially, to a bridge across the Connecticut River, and toll for passing it as a compensation. The locks at Mad Tom and Surf Bars were consequences of the original grant, and intended to be auxiliary to it. They were rather appurtenances to the right to build the bridge, than principal privileges. All the acts of the legislature, and all the petitions and reports connected with those acts, shew this. The locks were rather considered as burdens annexed to a favour;. and it is very apparent, that the company for a long time so considered them.

But now, by the act of|1824, a company is created for a different purpose, and on a much larger scale, and for public objects of great general utility. The primary object of the new company is the navigation of the river, and not a passage bridge. It is to surmount and evade all the whole inconvient navigation over rapids, rips and bars, for several miles ; and the construction of this grant is to be taken liberally, and the right to lock Mad Tom Bar to be taken more strictly.

I deeline giving any opinion as to the inquiry whether the rights, of the Enfield Bridge Company to make locks at Mad Tom and Surf Bars have expired, by non-user or limitation. But I go upon the ground of the assumption of the existence of the right of the Enfield Company to go on, and build their locks, as appurtenant to their toll-bridge. Still I do not think that right bars the legislature from allowing a canal from still water to still water on the west side of the river. It would probably disturb the The Enfield Bridge Company privilege, if erected on the east side. I therefore lay emphasis on the fact of its being on the west side; and then I think that narrow privilege cannot bar a great and larger privilege in a different place, though it might indirectly take away the custom. .Such a construction would be most mischievous and monstrous. It might be extended to destroy the right to run a canal from Northampton to New-Haven ; for that, if successful, would diminish, at least very greatly, the custom at the Mad Bar and Surf locks.

I have no idea of pushing a monopoly to that extent; and I think that these extensive privileges (though sacred within their limits) are to be taken strictly as against the public improvement in other places. To erect a new bridge, or ferry, or fair, of the same kind, so near to another as to draw away its custom, would be a fraudulent evasion of its rights and privileges. It would be a nuisance; and this is all the principle that can be urged and applied m this case, in opposition to a canal on the west side of the river ; and I think it does not apply. If there be an exclusive ferry from A. to B.f it does not prevent persons from going by any other boat from A. directly to C.t though it lies near to B., provided it be not done fraudulently, and as a pretence for avoiding the regular ferry. Tripp v. Frank, 4 Term Rep. 666.

2d Question. — Is this a case for an injunction in favour of The Enfield Bridge Company, while thej* have neither made, nor commenced making, locks ?

Answer. — I am very clearly of the opinion, that it is not a proper case for an injunction. The Enfield Bridge Company are not in the exercise and enjoyment of their locks at Tom and Surf Bars. They have not erected them; and have omitted to do it, for the enormous lapse of thirty years. There never was an injunction granted upon a monopoly privilege so rusty by non-user. They are not granted but to maintain rights in full enjoyment and exercise. The Enfield Company ought first to erect their locks and finish them as the law intended, before they are entitled to such a summary and extraordinary remedy as an injunction. Besides, the injunction might of itself work irreparable mischief, by suspending the canal operations ; and if eventually, on review, the right of The Enfield Company should be found imperfect, how are The Connecticut Company to be indemnified ? The doctrine is, that the party calling for an injunction, must have exclusive possession. He must be in actual enjoyment of his franchise ; and if not so, he must first establish his title at law before equity will help him in this way. Hill v. Thompson & al. 3 Meriv. 622. 624. Livingston v. Van Ingen, 9 Johns. Rep. 586. Sullivan v. Redfield & al. 1 Paine's Rep. 441.

Upon the whole, I have no doubt that in taking all the circumstances of the case into view, it would be a novel and extraordinary exercise of equity power, to award an injunction, at present, against the exercise of such an improvement on the canal, in favour of such a claim as that to lock Mad Tom< Bar, when the right has lain unexecuted thirty years, and remains so still.

JAMES KENT.

New-York, June 1th, 1828.  