
    
      The Tuckahoe Canal Company v. The Tuckahoe and James River Rail Road Company.
    March, 1840,
    Richmond.
    (Absent Parker and Stanard, J.)
    Canal and Railroad Companies — What Grant of Charter Does Not Create a Monopoly. — A monopoly cannot be implied from the mere grant of a charter to a ’ company to construct a work of public improvement, and to take the profits ; to give such monopoly, there must be an express provision in the charter, whereby the legislature restrains itself from granting charters for rival and competing works.
    Same — Same. — Therefore, where the legislature granted a charter to a company to construct a navigable canal along the valley of a stream, and in consideration of the work to take the profits, without any provision against the exercise of power to charter other and rival companies, the legislature was nowise restrained from chartering a company to construct a rail road along the same valley, though the rail road shall afford the same public accommodation as the canal, and may in effect impair or annihilate its profits.
    Same — Power of Junior Company to Cross an Elder —Liability for Damages. — A navigable canal being constructed by a chartered company along the valley of a stream, a company is afterwards chartered to construct a rail road along the same valley ; if the termini given for the rail road be such that it may cross the canal, the rail road company is authorized to lay out its road so as to cross the canal: but in such case, the rail road must be so constructed as nowise to obstruct or impair the navigation, the rail road company being liable to the canal company for all damages which may result therefrom.
    Same — Power of Railroad Company to Condemn Land of Canal Company. — The general rail road law of 1836-7, ch. 118, authorizes a rail road company to have condemned for its use, lands which a chartered canal company has acquired for its canal, as well as lands of individuals ; and if the canal company has only acquired a right of way in the lands occupied by the canal, the rail road company may have the lands condemned for its use, as the lands of the original proprietor, subject to such right of way.
    Same — When Proceeding of Railroad Company Can» not Be Enjoined. — By the 13th section of the general rail road law, the court of chancery is deprived of jurisdiction to in join a railroad company from proceeding to prosecute its work at its peril, upon the application of an elder canal company, whose canal the road is projected to cross ; the rail road company not thereby transcending its authority, *and the injury if any to the canal company being such as may be adequately compensated in damages.
    
      Tuckahoe Creek is a samll tributary of James River, into which it falls about ten miles above the city of Richmond. It is the dividing- line, from its source to its mouth, between the counties of Henrico on the east, and Goochland on the west of the stream, the general direction of its course being- from north to south; and it passes through a body of coal lands lying in both those counties, in which coal mines have been opened and worked, for many years, by several proprietors.
    By an act passed on the 1st March 1827, the general assembly authorized six managers to open books for receiving and entering subscriptions to the amount of 20000 dollars, in shares of 1000 dollars each, for the purpose of constructing a canal from some point on the James River canal, west of Tuckahoe Creek, to some point on the creek in Goochland, near Crouch’s coal pits; and enacted, that whenever two fifths or more of the capital should be subscribed, the subscribers should be incorporated a company by the name of The Tuckahoe Canal Comi>any, with all the rights and privileges, and subject to all the regulations, restrictions and provisions, of the general law concerning turnpike companies, 2 Rev. Code, ch. 234. That whenever two fifths or more of the capital should be subscribed, the managers should call a general meeting of the subscribers, at which the shareholders holding a majority of the shares actually subscribed, should have power to make all necessary rules and regulations, and to elect a president and two directors, for conducting the canal, and so much of the company’s business as should be confided to their care. That the president and directors should have power to agree with the owners of lands through which the canal should pass, for the purchase of so much thereof as should be nee? essary for the canal and the works incident thereto, or, in case of disagreement, *to proceed to have the lands condemned according to the provisions of the general law concerning turnpike companies. That in case any owner of land on either side of the canal should apprehend damage from the work, any two justices of the peace of the county in which the land should lie, should, at his instance, issue a warrant to the sheriff to summon a jury to assess the damage if any which such proprietor would sustain, and the damage so assessed should be paid to the proprietor by the company before it should proceed to the cutting of the canal. That in consideration of the expenses the company would incur in making the canal, and keeping the same in repair, the canal with all its profits should be vested in the subscribers, their heirs and assigns, as tenants in common, in proportion to their respective shares. That the president and directors should have a right to demand and receive tolls, according to a tariff prescribed by the charter, for the whole work, and to demand and receive a fourth of those tolls, so soon as the canal should be rendered navigable for boats drawing two feet water as far as Buck Branch (a small stream which falls into the Tuckahoe about a mile from the James River canal). Provided, that nothing in the act contained should authorize the diversion of the Tuckahoe, or any part thereof, into the canal, or the erection of any dam across the creek. And that the canal should be completed within five years from the passing of the act; and if the navigation should not be completed within that time, all the rights and privileges thereby granted should cease and determine. Sess. Acts 1826-7, ch. 64, p. 56.
    At the time this act was passed, the James River canal crossed the Tuckahoe by an aqueduct, on a level several feet above the level of the creek, and immediately after crossing it, was let down by locks into the creek, which, thenceforth to its mouth, was part of the canal. And as no part of the waters of the creek were *to be diverted into the Tucka-hoe canal, it was, according to the original plan of the work, to be supplied with water from the James River canal, by a feeder taken from its upper level, which was high enough to supply water to the lateral canal for its whole extent.
    The charter of the Tuckahoe Canal Company was altered, at the instance of the company, by an act passed on the 11th January 1828; whereby the company was authorized to make a rail road on so much of the ground intended for the location of the canal, as the company should deem expedient ; provided that it should not thereby obstruct any private roads or ways, or such other roads as were convenient for persons travelling to Tuckahoe mill: to make navigable any part of Tuckahoe Creek lying between the James River canal and the mouth of Buck Branch by deepening the same, or, if necessary, by erecting a dam and lock for raising the water of the creek, so that it should not be raised more than a foot above the ordinary level; provided it should not charge more than a sixth (instead of a fourth) of the whole toll, for the navigation from Buck Branch to the James River canal: and to cross the Tuckahoe at any point above Tuckahoe bridge on the main road, so as not to raise the water in Tuckahoe mill pond, or the creek above it, higher than its then level, or to obstruct the course of the water in the mill pond or the creek. Sess. Acts 1827-8, ch. 106, p. 75.
    The company, however, proceeded with the work upon a plan different from that authorized either by the original act of incorporation or by the amendment of its charter. And on the 9th February 1830, the general assembly passed another act, reciting that the company had proceeded to locate and commence the canal authorized by the acts relating thereto, along the bed of the Tuckahoe, with the consent of all persons interested therein or affected thereby, instead of pursuing the independent *canal required by those acts, and that it was desirable that an act should pass to authorize such change in the location of the canal; and therefore enacting, that the company should be authorized to extend the canal along the bed of the Tuckahoe from the James River canal to the upper locks on the lands of John Wickham, and from the dam erected across the creek above Tuckahoe bridge, to Crouch’s lower bridge, and with the concurrence of all the stockholders, by instrument in writing and recorded, to extend the canal along the bed of the creek to the mouth of Deer Pen Branch; and that the dam across the canal above Tuckahoe bridge, which had been already erected, should be authorized as if the same had been erected according to law; provided, that nothing in the act contained should be so construed as to affect any agreement between John Wickham and the company, and that the company should have no right to obstruct the course of the water of the Tuck-ahoe to the mill of the said Wickham, contrary to the terms of such agreement. Sess. Acts 1829-30, ch. 60, p. 58.
    Mr. Wickham was the owner of the lands on the Tuckahoe, from the James.River canal to the dam.erected by the company, and of Tuckahoe mill also, which was on the creek some distance below that point, with the mill pond and the land covered by it, of considerable extent, appurtenant to the mill; and the agreement referred to in the last act, was a contract between him and the company, stating the terms on which he consented that the company should make its canal through his land, and should have the use of the waters of the Tuckahoe for supplying the same. But though the company had, in the execution of the work, complied with those terms, the contract had not been executed on either part by deed.
    The work was executed according to the provisions of the charter contained in the, three acts of assembly above recited, taken together. Prom the head of the navigation .to the dam mentioned in the last act, the improvement was made by deepening the Tuckahoe, in some parts, clearing away obstructions, and so rendering it navigable, and by cutting canals, in other parts, whereby the stream was straightened; from the dam to the mouth of Buck Branch, a canal was cut, which was supplied with water partly from the Tuckahoe, and partly by a feeder from the James River canal; and at the mouth of Buck Branch, locks were constructed to connect the canal with the stream of the Tuckahoe, which was deepened and rendered navigable from the locks to the James River canal. The canal from the dam to' Buck Branch crossed the main road from Richmond to Goochland courthouse, a bridge being made across the canal for the road to pass over, high enough to admit the passage of any boats along the canal, which could be used in the navigation, in the then state of the improvement. The whole length of the canal, from the head of navigation to the James River canal, was five and a half miles.
    It did not distinctly appear in proof, when the work was completed. After it was completed, the company demanded and received the full tolls, allowed by its charter: but though, by the charter, it was “subject to all the regulations, restrictions and provisions of the general law concerning turnpike companies,” it never complied with the provisions of the 17th and 29th sections of that statute.* The. company insisted, that the provisions of the 17th section were nowise applicable to its case. And as to the provisions of the 29th section, it appeared, that though the company had not made the report to the board of public works thereby required, and though the attention of the board was called to the subject in 1831, the board, at that time, for reasons satisfactory to them, declined to act upon it, and had never since thought proper to reduce the tolls.
    The Tuckahoe canal was so constructed as to afford navigation for any boats that could navigate the James River canal, as that canal was then constructed. But The James River and Kanawha Company having proceeded, under its new charter, to enlarge that canal, so as to afford navigation for boats of much larger burden, and to conduct the canal in that part on a higher level than the Tuckahoe, a corresponding change in the contruction of the lateral Tuckahoe canal was thereby rendered necessary. And by an act of assembly passed the 9th April 1838, The Tuckahoe Canal Company was authorized to increase its capital to the amount of 30000 dollars, and to enlarge the dimensions of its canal and works, and to alter the construction thereof, in the manner provided in the act. Sess. Acts 1838, ch. 204, p. 148.
    But, in the meantime, namely, by an act passed on the 27th March 1837, The Tucka-hoe and James River Rail Road Company was incorporated, for the purpose of constructing a rail road 'from the lands and coal mines of Martha Ellis in Henrico, to such point on the James River canal as the company should select. For this work, the act authorized the raising bjT subscription of a capital of 40000 dollars, in shares of 100 dollars each ; and it gave The Tuckahoe Canal Company the privilege of raising the capital, and of executing the work, provided that one hundred shares of the capital should be subscribed, and the work commenced, within two months from the passing of the act, and completed *within twelve months thereafter. But if that number of shares should not be subscribed, and the work commenced and completed by the Tuckhoe Canal Company within the times specified, the act provided, that the privilege thereby granted to that company, should, in that case, be forfeited: and that, then, books should be opened for receiving and entering subscriptions for the capital of 40000 dollars in shares of 100 dollars each, and when one hundred shares thereof should be subscribed, the subscribers should be incorporated into a new company by the name of The Tuckahoe and James River Rail Road Company, for the purpose of constructing the said rail road; which company should be subject to the provisions of the general law prescribing certain general regulations for the incorporation of rail road companies. Sess. • Acts of 1836-7, ch. 132, p. 124.
    
      The Tuckahoe Canal Company did not avail itself of the 'privies'6 conferred upon it by this act, of constructing the rail road from mrs. Ellis’s coal mines to the James River canal. And, thereupon, books were opened for receiving and entering subscriptions to the capital of 40000 dollars; the capital, or a sufficient number of shares thereof, were subscribed; and the subscribers became incorporated into the new and distinct company of The Tuckahoe and James River Rail Road Company.
    This new company projected its rail road from mrs. Ellis’s coal mines in Henrico, east of the Tuckahoe, to a point on the James River canal also east of that creek, but so as to cross the Tuckahoe Canal at two points. The only motive for thus crossing the line of the Tuckahoe Canal was to save expense in the construction of the rail road. It might have been laid out altogether on the east of the Tuckahoe without crossing the Tuckahoe Canal; and that route, in the opinion of the witnesses, would have been as eligible as the one which was adopted, except that the expense of the wofk would have been greater.
    The rail road, as projected, was to cross the canal on two bridges. At the upper crossing, the elevation of the bridge was to be six feet six inches above the common water level of the canal; but only three feet six inches above the towing path ; and the space between the abutments was fort3T-six feet : the elevation of the bridge at the lower crossing, was to be thirteen feet above the canal, and the space between the abutments a hundred and forty feet. The elevation of these bridges above the canal, and the spaces between the abutments, were greater than the elevation of the bridges, and the spaces between the abutments thereof, which had been erected by The Tuckahoe Canal Company for the crossing of public and private roads over the canal. The grading of the rail road according to this projection, was completed in April 1838, and contracts for the whole work had been made, and a good part of the work had been done, earlier.
    In August 1838, The Tuckahoe Canal Company exhibited a bill, in the circuit superior court of Goochland, *against The Tuckahoe and Jatnés River Rail Road Company, in which, after setting forth the charters of both companies, the actual construction of the canal, and the projection of the rail road to cross the canal at two points, they insisted, that the charter of the Rail Road Company gave it no right to run its road across the canal at all; that the legislature had by design withheld the grant of such a right in the charter; and upon general principles of law, the Rail Road Company had no such right. That the Canal Company had a right, not only to enjoy the profits of its works, free from obstriiction, in the then state of the improvement, but also to enlarge and improve its canal, so as to correspond with the late improvement of the James River canal. And that the erection of bridges for the projected rail road, especially the erection of the upper bridge, at the elevation proposed, would obstruct or impede the navigation of the canal, and the use of the towing path, even in the then state of the work; and would utterly prevent the Canal Company from enlarging and improving its canal, so as to correspond with the late improvement of the James River canal, and to afford a navigation for boats of the same dimensions and burden with those that navigated the James River canal, as enlarged and improved. Therefore, the bill prayed an injunction to restrain The Tuckahoe and James River Rail Road Company from constructing any bridge or rail road, or arch of any kind, across the Tuckahoe canal.
    The injunction was awarded.
    The Tuckahoe and James River Rail Road Company, in its answer, insisted, that The Tuckahoe Canal Company was nowise entitled to the aid of the court of chancery, because it had not in fact constructed its canal, and kept it in repair, so as to afford a navigation for such boats as navigated the James River canal at the time the Tuckahoe canal was constructed, and because the Canal Company had from the time of the completion of the *work (which, the defendants alleged, was completed as early as 1831) continued to exact full tolls, yielding an enormous profit on the capital actually expended, and had never made any such report to the board of public works as the companj' was bound by law to make, in order that the board might determine whether it was proper to reduce the tolls. That the Canal Company had acquired no legal title in the land upon and through which it had dug its canal, but claimed only under an executory contract with mr. Wickham, which had never been executed by deed; and therefore, any part of that land was still liable to be condemned, as the land of mr. Wickham, for the use of the Rail Road Company. That, as against the Rail Road Company, the Canal Company had no right to enlarge and improve its canal so as to correspond with the late enlargement and improvement of the James River canal, since it could only claim such right under the act of assembly passed on the 9th April 1838, and the charter of the Rail Road Company was passed on the 27th March 1837, under which the Rail Road Company had been incorporated, had commenced its work, and had made great progress therein before April 1838. That the Rail Road Company had a right to construct its road on any route it thought proper, between the two points mentioned in its charter, and to cross the line of the Tuckahoe canal, provided the road should be so constructed as not to obstruct or impede the navigation of the canal; and that, in fact, the rail road bridges would nowise obstruct or impede the navigation of the actual canal, since they were to be erected at an elevation greater than that of any of the bridges which the Canal Company had itself erected across the canal. That, at all events, the Rail Road Company had a right to construct its road so as to cross the canal, in the manner proposed, even if it should thereby obstruct or impede the navigation of the canal, in which case the Canal Company *would only be entitled to compensation in damages; and that the court of chancery had no jurisdiction to interfere by way of injunction.
    
    In March 1839, the circuit superior court dissolved the injunction, so far as the same restrained the Eail Eoad Company from erecting- a bridge for its road, across the canal, at an elevation of six feet or move above the towing path of the canal. The Canal Company applied by petition to this court for an appeal from the order; which was allowed.
    The cause was argued here, by E. C. Stanard, Lyons and Leigh, for the appellants, and by Taylor and G. N. and C. Johnson, for the appellees.
    I. The counsel for the appellants contended, that, supposing it competent to the legislature, after granting the privilege to a corporate company, of making a canal for the transportation of coal and other articles from one point to another, and granting to the company the profits of the work as a compensation for the improvement, to authorize another corporate company to construct a rail road along side of the canal, for the transportation of the same articles from and to the same points, whereby the profits of the canal company would be wholly taken away, yet the legislature could not, without a violation of the charter of the Canal Company, authorize a rail road which should cross the line of the canal, and occupy, in any way, the very ground, or any part of it, on which the canal was made. They referred to the cases of The Chesapeake and Ohio Canal Company v. The Baltimore and Ohio Eail Eoad Company, 4 Gill & Johns. 1, and The Proprietors of the Charles Eiver Bridge v. The .Proprietors of the Warren Bridge, 11 Peters 420. The last case, they said, went to as great a length as any other case (and, they thought, farther than any other) in upholding the right of the legislature to take away, in effect, the whole substantial benefit of corporate privileges which it had itself previously conferred. The question there presented to the court was, whether by a subsequent act of incorporation, a state legislature could constitutionally confer on a junior company, the right of constructing an improvement, which, by establishing a direct and ruinous competition, would impair, if not destroy, the franchise of an elder existing corporation which it had previously chartered? On that question, the supreme court of Massachusetts was equally divided: the supreme court of the U. States, by a divided court (four judges to three,) held the affirmative. In that case, the main question was as to the extent of the franchise of the elder corporation ; the Charles Eiver Bridge Company insisting, that its franchise had a reasonable extent beyond ferry ways and the timbers of the bridge, so as to prevent ruinous competition ; and the Warren Bridge Company maintaining, on the contrary, that the charter of the other company must be strictly construed, and its franchise confined to the ferry ways and the timbers of the bridge. But no one denied, that within the ferry ways and the timbers of the bridge the franchise was sacred. It was not pretended, that the legislature of Massachusetts could confer on the Warren Bridge Company, a right to construct its bridge between the same points, or to throw it over the Charles Eiver bridge, or to appropriate to its use the ferry ways, or the termini of that bridge, or either of them, even though the access to it, or the passage or transportation over it, should not be thereby obstructed: to have done that, it was admitted, would have been to invade the paramount and exclusive right which the Charles Eiver Bridge Company had in its own bridge and ferry ways, and would have involved a direct and unconstitutional violation of its undoubted franchise. The argument for the Warren Bridge Company was (and such was, substantially, the opinion of a majority of the supreme court) that the franchise of the Charles Eiver Bridge Company was confined within the limits before mentioned, and the construction of the Warren bridge was, therefore, no violation of it; and that as to the loss of the tolls, with which the Charles Eiver Bridge Company was threatened, that was a consequential damage resulting from a lawful act, damnum absque injuria, for which the elder company had no redress. Admitting, then, the authority of the judgment of the supreme court in that case, yet so far from sustaining the claim set up by the Eail Eoad Company in this case, to make bridges across the appellants’ canal, they said it was a direct authority against the appellees on that point. However, they controverted the propriety of the judgment of the supreme court by which the claim of the Warren Bridge was sustained against the rights of the Charles Eiver Bridge; founding themselves on the arguments of judges Story and M’Lean, who dissented from the majority of the court. In the controversy between The Chesapeake and Ohio Canal Company and The Baltimore and Ohio Eail Eoad Company, -the latter, which was the junior corporation, had actually selected the route and had the land condemned for its road, when it was arrested by an injunction from the chancellor of Maryland, which he afterwards dissolved. The court of appeals of Maryland held, that the Canal Company had, under its elder charter, a prior right to select the route for its improvement; and that this right of selection (though it had not yet been exercised) was a vested franchise in the Canal Company, which no subsequent legislation could abridge or impair; and, therefore, reversed the decree, and perpetuated the injunction. It appeared, indeed, in that case, that the rail road, on the route selected for it, would render the-construction of the canal impractible ; but, as chief justice Buchanan said, that was “a question not of principle but of degree;” and the court expressly held, that the Eail Eoad Company could not be permitted, in the selection of its route, to interfere with, impair, or in any way abridge, the prior and paramount right of choice vested in the Canal Company by its charter. Now, if it was a violation of the charter of The Chesapeake and Ohio Canal Company, to interfere with, its right to select the route for its canal, before that right was exercised, much more would it be a violation of the charter of The Tuckahoe Canal Company, to interfere with the route of its canal, after it had been selected, after the company had purchased a right in the lands on the route for the work, and had completed its canal.
    The counsel for the appellees answered, that the legislature had unquestionable power, after having chartered a company to make a particular improvement for public accommodation, without any provision that no rival improvement or .competition should afterwards be authorized, in other words without contract or design to give a monopoly, to grant a charter to another company to make an improvement of the same or of a different kind, to afford the like or the same accommodation as the former, however „ the work of the junior company might impair, or even destroy, the profits of the elder. If the legislature had not such power, they said, the whole legislation of the country on such subjects, had been founded in error and injustice. They referred to very numerous instances in the statute book, in which the legislature had authorized the establishment of rival ferries, rival toll bridges, rival turnpike roads, to serve the purposes of the same travel and transportation,, from which established and ancient ferries, and previously chartered toll bridges and turnpike roads, derived their profits. And hitherto, none had ever questioned the power of the legislature to authorize such competition, *however injurious or ruinous it might be to the proprietors of older rights and works of the same kind. The propriety of authorizing such competition was a question of expediency, not of the legislative power. It was competent to the legislature too, to authorize one improvement of the kind to cross the line of a former improvement, provided the use of the older improvement was not thereby obstructed. Thus, it had chartered the Portsmouth and Weldon Rail Road Company, though its road was of necessity to cross the road of The Petersburg and Roanoke Rail Road Company: it had chartered The Richmond and Petersburg Rail Road Company, though its road would necessarily cross the Manchester turnpike, the Manchester Rail Road, and the Richmond and Petersburg turnpike, all of which had been constructed under previous charters. In these instances, the right of the junior companies to cross the lines of the older improvements, had never been, and could not be, doubted: but the charters of the junior companies did not, and (they admitted) could not, without providing just compensation, give them any right to obstruct the use of the former improvements. It was the duty of the junior companies, in crossing the lines of former improvements, to avoid the least obstruction to the use of them. The whole question in the present case, then, and the only question that could arise in any case of the kind, was, whether the Tuckahoe and James River rail road crossing the Tuckahoe canal, at the two points, according to the projection of the road, would, or could, obstruct or impair the navigation of the canal? And this, they said, was a mere question of fact.
    II. The counsel for the appellants insisted, that the charter of The Tuckahoe and James River Rail Road Company, neither gave, nor was intended to give, that company any right to cross the line of the Tuckahoe canal. The termini given for the rail road were such, *that it was nowise necessary that it should cross the canal; and it appeared by the evidence, that a route might have been selected for the road altogether east of the canal, which would have been equally eligible as the route that was adopted, excepting some difference in the expense. Had it been intended, that the rail road should or might cross the canal, it would have required but a few additional words to express the purpose. And had it been so intended, the legislature would not have failed to provide some proper process for ascertaining, whether, in crossing the canal, the road would obstruct the navigation of it, or in any way impair the rights of the Canal Company, and for compensating it for any damages it should thereby sustain. The charter of the Rail Road Company, not being intended to confer upon it any such right, provided no such process. And, they said, there was no general law providing any such process, that could possibly be held applicable to the case. They entered into a critical examination of the 9th, 10th, 11th and 12th sections of the general rail road law of 1836-7, ch. 118, for the purpose of shewing, that those provisions authorized incorporated rail road companies to purchase or have condemned for their use, only ’ such lands and tenements as belonged to individuals; such as could be laid off by metes and bounds, and full possession thereof taken; such as had not been previously condemned for public use, or for the use of other public companies chartered to construct works of internal improvement: that they by no means authorized the condemnation, over again, of lands which had been already acquired or condemned for public use, or for the use of other chartered companies; much less did they authorize the condemnation of the rights and franchises of an established corporation for the benefit of another corporation. They did not deny, that the legislature might au thorize the condemnation of property already before ^'condemned for the use of a chartered company, or even the franchises of the company, for the purpose of improvements of paramount importance, providing at the same time just compensation to the owners: they only denied that the legislature had done so in this instance; and, they said, it had never done so, in any instance to be found in the history of our legislation. But if the provisions of the general rail road law could, by any violence of construction, be applied to a case like this, yet, they said, the appel-lees had not availed themselves of those provisions, and had not acquired, or attempted to acquire, any rights under them. That statute provided compensation in all cases in which it authorized the condemnation of property; otherwise, it would have been unconstitutional. Crenshaws v. The Slate River Co., 6 Rand. 24S. Therefore, if the statute authorized the appellees to have the property, much more the corporate franchises, of the appellants, condemned for the use of the rail road, it also provided a process for ascertaining1 the damages, and •required that just compensation should be paid. Sensible of all this; the appellees' had insisted in their answer, that the appellants had not acquired the legal title of the land through which they had made their canal; that the legal title of the soil was still in mr. Wickham; and that they had a right to have the same land condemned as the land of mr. Wickham, for the use of their rail road. It did not appear by the record, that the appellees had procured the condemnation of the land as mr. Wickham’s land: but if they had, they could only have acquired, by such a proceeding, the rights of mr. Wickham; namely, the naked legal title, subject to the equity of the appellants to call for a conveyance, according to their agreement wHh mr. Wickham, and subject to their exclusive right, under that agreement, to the use of the land for the purposes of their canal, without obstruction from mr. Wickham, or 'x'any person claiming under him. Now, it could hardly be pretended that mr. Wickham, or any one claiming under him, would have had a right to erect bridges over the canal, without the consent of the Canal Company, even if such bridges would not obstruct the navigation of the canal, much more if they would obstruct it.
    The counsel for the appellees answered, that the charter of The Tuckahoe and James River Rail Road Company, gave The Tuckahoe Canal Company the preferable right to construct the rail road from the lands of mrs. Ellis in Henrico to such point on the James River canal as the company should select; and if it should decline to undertake the work, then the act incorporated the new company to construct “the said road.” It could not be doubted, that if the Canal Company had undertaken the work, it might have so constructed the road as to cross the line of the canal; that it might have selected any point on the James River canal, whether west or east of the Tuckahoe, for the terminus of the road ; and if it selected a point west of that creek, the road must have crossed the line of the canal. The Rail Road Company was authorized to construct “the said road;” its rights were measured by the previous grant to the Canal Company; it had the privilege of selecting any route for the road which the Canal Company might have selected ; it had a right to select a point west of the Tuckahoe, for the terminus of the road on the James River canal. It followed, that the Rail Road Company was authorized, by its charter, to select any route for its road, which it should deem most eligible, whether it should cross the line of the canal or not. But again, the charter referred to the general rail road law, and made the provisions of that statute part of the charter, for ascertaining and regulating the rights and duties of the Rail Road Company. And the 16th section of the general rail road law expressly provided, *that “whenever, in the construction of any rail road, it should be necessary to cross any established road or way, it should be the duty of the president and directors so to construct their rail road, as not to impede the passage or transportation of persons or property along the same.” Now, the Tuckahoe canal was only an established way; and the appellees had a clear right to run their rail road across it, only taking care so to construct the road as nowise to impede the navigation. They said, the ap-pellees did not claim a right to condemn the bed of the canal, or the towing paths, or any rights, whether legal or equitable, which the appellants had acquired therein ; much less did they claim a right to condemn for their use the corporate franchises of the appellees. They only claimed the right to have condemned for the abutments of their bridges, the lands of mr. Wickham on both sides of the canal, in which the'appellants had acquired no rights legal or equitable; and then to construct their bridges across the canal, but only so to construct them as not to obstruct the canal itself, or the towing paths, or to impair in the least the rights of the appellants. So that the question again came round to the question of fact, whether the Tuckahoe and James River rail road, crossing the Tuckahoe canal at the two points, according to the projection of the road, would, or could, obstruct or impair the navigation of the canal?
    The counsel for the appellants replied, that the 16th section of the general rail road law, in authorizing rail road companies to cross established roads or ways, meant the ordinary highways of the country, not such ways as a navigable canal made by a corporate company under authority of its charter. And this, they said, clearly appeared from the context; for the provision not only authorized rail road companies to cross, but where they should qross, to change, established roads or wa3rs; and it could not be pretended that the 'statute ^'intended to authorize a rail road company to change the course of a navigable canal, made under an older charter, at the points where the rail road should cross it.
    III. The counsel for the appellants earnestly contended, that the construction of the rail road bridges across their canal would materially impair their corporate rights. According to the projection of the rail road by the appellees, the upper bridge was to have crossed the line of the canal at an elevation of six and a half feet above the ordinary level of the water in the canal, but only three and a half feet above the towing path. This bridge would, probably, have impeded the passage of boats along the canal at high water; and, certainly, it would have prevented the passing of a horse of ordinary size along the towing path. It was in vain to say, that the elevation of the bridge above the ordinary level of the water in the canal, was greater than that of the bridges which the Canal Company had itself made, for the main road and the private ways over its canal: the Canal Company had the right to raise its own bridges to greater elevations at its pleasure; but it would have no right to raise the viaducts of the rail road when they should once have been constructed. The circuit superior court dissolved the injunction it had awarded, so far as it restrained the appellees from erecting bridges for their road across the canal at an elevation of six feet or more above the towing path of the canal; and this might, possibly, obviate the impediment to the navigation of the canal in the existing state of that improvement. But what the counsel chiefly insisted on, was, that even with such additional elevation of the viaducts for the rail road, they would impede and prevent the navigation of the canal, when it should be enlarged and improved, so as to'correspond with the late improvement of the James River canal, and to afford a navigation for boats of as great dimensions and burden as could navigate the James River canal in its present enlarged and improved state. They contended, that the Tuckahoe Canal Company, under its original charter, independently of the act of the 9th April 1838, had a right to enlarge, improve and alter its canal, so as to connect the navigation thereof, and to make it of equal capacity, with the James River canal. At the time the Tuckahoe Canal Company was chartered, the James River canal had been completed according to the laws which authorized that work; its level, its dimensions, its navigable capacity, from Tuckahoe creek to Richmond, were all ascertained. The purpose of the charter of the Tuckahoe Canal Company was to provide a lateral navigation, corresponding in level, in dimensions and capacity, with the then level, dimensions and capacity of the principal canal; if the lateral had not corresponded with the principal canal, in navigable capacity, its utility would have been comparatively trivial; and if the lateral canal had been constructed upon a lower level than that of the principal, it would have been of little or no use. The Tucka-hoe Canal Company, therefore, so constructed its canal as to connect the navigation thereof with the James River canal, and to adapt the one to the other. And after the Tuckahoe canal was completed upon this principle, the construction of the James River canal, by. authority and upon the requisition of the legislature, was wholly changed, its dimensions enlarged, its capacity improved, so as to afford navigation for boats of-much greater burden than before; and especially, it was conducted on a higher level than formerly; and thus, the connexion of the lateral navigation with, and its adaptation to, the principal canal, was destroyed. The Tuckahoe Canal Company had a clear right, without any new authority from the legislature, to make a corresponding alteration in the level, the dimensions, and the capacity of its canal; since in so doing, it would accomplish the precise purpose for which it was originally "x'chartered, and with out so doing, the profits of its improvement to itself would be much reduced, perhaps wholly lost, and the advantage to the public materially impaired, if not annihilated. It had a right to agree with the James River and Kanawha Company, for water to supply its canal so enlarged, and with the land owners for the additional land which the enlargement should require: and surely, the commonwealth could not exact a forfeiture of its charter for usurpation, when by her own act, she had made the enlargement of the work necessary. Then, if the Tuckahoe Canal Company had the right to make such alteration, enlargement and improvement of its canal, it was impossible to doubt, that the projected bridges of the Rail Road Company across it might, and would, directly interfere with, hinder and prevent the exercise of its corporate rights.
    The counsel for the appellees answered, that it was quite certain, that the projected bridges for the rail road across the Tuckahoe canal, would not obstruct the navigation thereof, in the present state of the improvement, since the elevation of the bridges, and the spaces between the abutments, were greater than those of the bridges which the Canal Company had itself made over the canal. As to the claim set up for the Canal Company, to enlarge and improve its canal, so as to make it correspond with the James River canal in its enlarged and improved state, they said, it could maintain no such claim, as against the Rail Road Company, under authority of the act of the 9th April 1838, because that act was subsequent to the charter of the Rail Road Company. And it could maintain no such claim under its original charter, for this conclusive reason (if for no other) that the charter required, that the work which it authorized, should be completed within five j’ears from the act of incorporation, and provided that if it should not be completed within that time, the rights conferred by the charter should cease and determine. The term *of five years had long since expired. The charter gave the Canal Company no authdrity now to construct a new work. This claim to enlarge the canal was founded on nothing like right; for such a work would depend absolutely on the will and pleasure of the James River and Kanawha Company, from whose canal alone the water could be supplied for such an enlargement of the lateral canal; on the will and pleasure too of the owners of the lands on the lateral canal, there being now no process by which additional lands could be condemned for such a use. Besides, they added, when once a navigation company like this, had projected and constructed its work, and the term within which its charter required the work to be completed had elapsed, the company had no right so to enlarge the capacity of the canal, as to affect the rights or interests of other persons. Blakemore v. Glamorganshire Canal Navigation, 1 Mylne & Keene 154; 6 Condens. Eng. Ch. Rep. 544.
    IV. The question as to the jurisdiction of the court of chancery to interfere, by way of injunction, to restrain the Rail Road Company from constructing bridges for its road across the canal, was discussed at the bar, 1st, on the general principles, and 2ndly, on the construction and effect of the 13th section of the law. general rail road
    The counsel for the appellants, 1. to shew the general jurisdiction of a court of chancery to interfere, by injunction, in cases of this kind, cited, among other authorities, Livingston v. Van Ingen, 9 Johns. Rep. 506; Croton Turnpike v. Ryder, 1 Johns. Ch. Rep. 611; Livingston v. Ogden, 4 Id. 48; Newburgh Turnpike v. Miller, 5 Id. 101; Chesapeake and Ohio Canal Co. v. Baltimore and Ohio Rail Road Co., 4 Gill & Johns. 1. And 2. they said, that the 13th section of the general rail road law referred to the provisions of the 9th, 10th, 11th and 12th sections, which authorized Rail Road Companies to purchase, or have condemned for their use, such lands and tenements *as they should select for the purpose, and before purchase or condemnation, to take possession of such lands and tenements, and to proceed in the construction of their roads: and the 13th section provided, that no injunction should be awarded to stay the proceedings of such companies in the prosecution of their works, “in the mean time,” namely, before or pending their proceedings to purchase or have condemned for their use such lands and tenements. But this section nowise took away the jurisdiction of a court of chancery to injoin a rail road company from invading a franchise, which the previous provisions of the statute had not authorized it to have condemned. And this was the injury which the appellants complained of here, and asked the court to prevent by injunction. Besides, the statute directed, that no injunction shall be awarded, “unless it be manifest, that the Rail Road Company are transcending the authority given them by the act, and that the interposition of the court is necessary to prevent injury that cannot be adequately compensated in damages.” They said, the word and ought to be construed or, so as to leave the court of chancery free to exercise its preventive justice in either of the cases mentioned: but if they were right upon the merits, the appellees were transcending the authority given to them by the statute, and their proceedings would produce irreparable injury to the appellants.
    The counsel for the appellees contested the general jurisdiction of the court of chancery to interfere by injunction, in a case circumstanced as this was: but, however that might be, they maintained, that the 13th section of the general railroad law was conclusive against the jurisdiction. That provision ought to be so construed as to fulfill the policy that induced the enactment; which was to save rail road companies from the mischief of having their work arrested at every stej), and their improvements indefinitely suspended, by the *'process of a court of chancery; a suspension, which must result in serious loss to them, if it should not render it impossible for them to complete the work within the time prescribed by their charters. There was no reason, why a franchise should be held more sacred than the land to which it was annexed, or the land of a corporate company more carefully protected than the land of an individual, or an equitable title more than a legal title. The statute in question intended no such distinction. Whatever might be the opinion of the court upon the merits, they said it seemed to them impossible, that any court could think, it “manifest” that this Rail Road Company was transcending the authority given to it, or that the injury which the Canal Company sought to prevent, was such as “could not be adequately compensated in damages.”
    
      
      Canal and Railroad Companies — Right of State to Control. — In Mason v. Harper’s Perry Bridge Co., 17 W. Va. 413, it is said that the legislature of this state in the case of ferries has never in any instance attempted to surrender its power over the subject, citing Tuckdhoe Canal Co. v. Tuckahoe & James River R. Co., 11 Leigh 42; Somerville v. Wimbish, 7 Gratt. 205. See also, citing the principal case, Roper v. McWhorter, 77 Va. 218.
    
    
      
      Same — Power of Condemnation. — As to the right of a railroad or canal company to condemn land for its use, the principal case is cited in Spencer v. Railroad Co., 23 W. Va. 410, 420 ; B. & O. R. Co. v. P. W. & Ky. R. Co., 17 W. Va. 853 ; Upper Appomattox Co. v. Hardings, 11 Gratt. 4; Alexandria & Fredericksburg R. Co. v. A. & W. R. Co., 75 Va. 787.
    
    
      
       Same — Condemnation—When Proceeding of Railroad Company Cannot Be Enjoined. — it is not competent for the court of chancery to award an injunction to stay the proceedings of a railroad or canal company in the prosecution of its work of any kind, unless it be manifest, both that it is transcending its authority given by its charter, and that the interposition of the court is necessary to prevent injury that cannot be adequately compensated in damages; the two circumstances must concur to warrant a court in awarding such process. James River & Kanawha Co. v. Anderson, 12 Leigh 814 (308), citing Tuckahoe Canal Co. v. Tuckahoe & James River R. Co., 11 Leigh 42. See citing the principal case for this proposition N. & W. R. Co. v. Smoot, 81 Va. 504: Board of Supervisors v. Gorrell, 20 Gratt. 514. See generally, monographic note on“Eminent Domain” appended to James River & Kanawha Co. v. Thompson, 3 Gratt. 270.
    
    
      
       Tile general law concerning turnpike companies, 2 Rev. Code, ch. 234, § 17, p. 218, provides — "That so soon as any section of live miles of such road shall he completed, it shall he lawful for the president and directors" of each turnpike company, “to apply to the court of the county in which such section or the greater part thereof may lie, to appoint three discreet and disinterested freeholders to examine the same, who, or any two of whom, being sworn for that purpose, shall examine such section, and make a written report of the condition thereof to the court; and if upon such report, and such other evidence as shall he offered, the court shall he satisfied, that such section is completed in the manner prescribed by this act, they shall make an order of record declaring that it is so completed, and it shall thereupon he lawful for the president and directors, and they are hereby authorized to erect thereon a toll gate or gates, and they shall he entitled, to demand and receive the following tolls upon the said section” — prescribing a tariff of tolls for the section of five miles of road. „
      Id. § 29, p. 222, provides — “That at the end of one year from the completion of the road, the president and directors” of each turnpike company “shall report to the hoard of public works, a statement shewing the whole amount of the capital expended in the construction of the road, the amount of tolls received during each preceding year, the expenses and charges incurred during each year, and the net annual profit or loss on the capital expended. If from this statement, and such other evidence as shall he offered, the hoard of public works shall he satisfied, that the net average profits for the three succeeding years, on the capital expended, will not equal ten per centum per annum, then the hoard of public works shall so augment the tolls hereby allowed, as to make them sufficient, in their estimation, to yield such net annual profit for the three succeeding years; and if the hoard of public works shall he satisfied from the evidence aforesaid, that the average net profits of the three succeeding years, will exceed fifteen per centum per annum on the capital expended, they shall so diminish the tolls as to make them only sufficient, in their estimation, to yield an annual net profit of fifteen per centum per annum for the said period of three years.” The statute then provides, that the like reports shall he made by each turnpike company, and the like action had thereon by the hoard of public works, from time to time, at the end of every three years. “And if the president and directors of the turnpike company shall fail to make the return accordingly, and to produce the evidence required for its vertification, without good cause for such failure, to he shewn to the hoard of public works, it shall he the duty of the hoard of public works to make an entry upon their journal declaring such failure, and forthwith to reduce the tolls of the said turnpike company to an amount not exceeding one half the tolls hereby allowed, and calculated to yield a net profit_not exceeding, in their estimation, five per centum per annum. Such reduction shall he continued until the proper return shall have been made, verified by the proper evidence, or until good cause shall have been shewn for the failure.” — Note in Original Edition.
    
    
      
      This general law was passed at the same session of 1836-7, Sess. Acts, ch. 118, p. 101. It provided a constitution for all railroad companies which should "be afterwards incorporated, prescibed their duties, regulated their proceeding's, and ascertained their corporate rights and privileges. The 9th section provides, that "previously to the institution, and during the pendency, of proceedings for ascertaining the damages to the proprietor, for the condemnation of land for the use of any such company, the president and directors, their officers, agents and servants, shall have power and authority to enter upon all lands and tenements through which they may desire to conduct their rail road, and to lay out the same according to their pleasure, so that no dwelling house, or space within sixty feet of one, belonging to any person, be invaded without his consent, and if they think the interest of the company requires it. to take possession thereof for the purposes of the company, and also to enter upon, lay out, an d take possession of such contiguous land as they may desire to occupy, as sites for'toll houses, warehouses, depots, — and all other buildings for the necessary accommodation of their officers, agents, and servants, their horses, mules and other cattle, and for the protection of the property committed to their care ; provided, that the land so laid ont and occupied on the general line of the railroad shall not exceed, except in deep cuts and fillings, eighty feet in width, and that the adjoining land for the sites of buildings shall not exceed one acre and a half in any one parcel.”
      The 9th section further directs, that the president and directors of such company “shall describe by certain limits the lands which they may desire to occupy for any of the purposes aforesaid.” And then that section, with the 10th, 11th and 12th sections, authorize every such company “ to purchase the land so laid out, or any part thereof; ” and “ in case they cannot agree with the owner or owners of the lands so entered on and laid out, on the terms of purchase,” to have the lands condemned for the use of the company, by proceedings the manner of which is very particularly prescribed.
      The 13th section provides, that “ in the mean time, no order shall be made and no injunction shall be awarded by any court or judge, to stay the proceedings of the company in the prosecution of their works, unless it he manifest, that they, their officers, agents or servants, are transcending the authority given them hy this act, and that the interposition of the court is necessary to prevent injury that cannot he adequately compensated in damages.”
      The 16th section provides, that “ whenever in the construction of any rail road, it shall he necessary to cross any established road or way, it shall he the duty of the president and directors so to construct their rail road across such established road or way, as not to impede the passage or transportation of persons or property along the same. And where it shall he necessary to pass through the land of any person, it shall he their duty to provide for such person, and keep in proper repair, proper wagon ways across their rail road from one part of his land to another, provided, however, that in order to prevent the frequent crossing of established roads or ways, or any interference with the same, hy the rail road, it shall he lawful for the president and directors to change the said established road or way at points where they may deem it expedient to do so, and that for entering or taking any lands which may he necessary therefor, they shall he and are hereby authorized to proceed under the provisions of this act as in case of land necessary for their rail road; and provided further, that previous to making such change the said company shall make and prepare a road equally good with the portion of the road proposed to he changed. But nothing in this act contained shall he so construed as to require the company to keep in repair the portion of any road they may have changed as aforesaid.” — Note in Original Edition.
    
    
      
       This last point of defence was founded, mainly, on the provisions of the 18th section of the general rail road law; see the last preceding note. — Note in Original Edition.
    
   TUCKEJR, P.

In the discussion of the respective rights of these parties, a very wide debate has been indulged, in the investigation of the legislative power, and the constitutionality of the charter granted by it to the Rail Road Company, to the prejudice, as is alleged, of the Tuckahoe Canal Company, whose charter is of anterior date.

Conceding, without question, the power of the judiciary to examine into and decide upon the constitutionality of laws, it cannot be denied, that it is a power which ought not to be lightly exercised. The separation of the legislative and judicial powers, and the inhibition of the invasion by the one of the powers of the other, demands that we should be cautions lest we transcend our own limits, in the attempt to confine a coordinate branch within its legitimate boundaries. We must carefully distinguish between legislative discretion and legislative power. With the former we have nothing to do, however harshly or injudiciously it may have been exercised. With us, this question is a ^question of power, not a question of the judicious exercise of it. With these views of our authority to pronounce upon the constitutionality of a law, I have considered the questions submitted in this case with an earnestness due to their importance.

The first appears to me to admit of no reasonable doubt. It has been contended, that a charter having been granted to the Canal Company for the construction of a canal along a certain line, it is not within the constitutional power of the legislature to grant another charter for another improvement running side by side with the first, although in the first charter there is no express grant of exclusive right, and although the second improvement does not cross the line of the first. On the other hand, it is contended, that if the grant contained in the first charter be not exclusive, if the law which created it has not provided that no rival improvement shall be constructed by legislative authority, it is at all times competent to the legislature to grant new charters to rival companies upon the same line, even though the value of the first may be impaired or utterly annihilated thereby. In the latter opinion I concur. Such legislation may be, and indeed often is, unwise, unjust and ruinous; but those are considerations which are in vain addressed to us, where the legislative body acts within the pale of its authority. That authority knows no limit but the charter of the government, and in that charter the only relevant provision is that no law shall be made impairing the obligation of contracts. The question then resolves itself into this: Has the legislature contracted with the Canal Company, that it shall have the exclusive transportation of the Tuck-ahoe valley, and that no rival company shall be incorporated which may impair its profits or take away its custom? That it has expressly done this, cannot be pretended. The act of incorporation contains ! ■ r s : • i no such provision. Is such a contract on the part of the ^government ■ : to be implied from the grant of the charter for the construction of the canal? I think not. It can never be conceded, that the incorporation of one company for internal improvement, is an implied negative of all future power in the legislature to incorporate other companies for other improvements. Such has never been the interpretation of legislative grants in Virginia, but wherever exclusive rights are intended, express provisions are introduced for the purpose of tying up the hands of the legislature, and restricting the future exercise of legislative power. It never was dreamed, that the establishment of one bank was in itself a negative on the power to establish others. It never has been admitted, that making one rail road was a negative to all future power to construct another which might rival it; but where that was the design of the charter, it has ever been so expressed; as in the act of 1833, ch. 3, f 38, the rights of the Richmond and Fredericksburg Rail Road Company are expressly protected, for a limited time, against all rival charters. Were it otherwise, what difficulties would present themselves 1 Without express and definite provision and limitation, how could we ascertain the extent of the exclusive right? Experience has proved, that monopoly is very ingenious in extending its rights and enlarging its pretensions. Give it the carte blanche of an implied contract, and we should soon find it without other limit than the limits of professional ingenuity; and the great mischief would at once present itself, of the improvement of the country being arrested by the perpetual objection of interference with chartered rights. Chartered companies are ever sensitive at the approach of a rival, and if the discovery of a possible clashing of interests shall be held sufficient to nullify a subsequent charter, it is impossible to foresee to what extent the legislative power may be crippled in this important branch of its duties. Already . have : ’ : ■ ; : : i : l : ; ¡ : ■ • , : we seen K'the passage of an act incorporating a rail road company from Norfolk to Weldon most vehemently opposed by a former company established between Petersburg and Roanoke. So the making a rail road from Richmond to Lynchburg was warmly opposed by the James Riyer and Kanawha Company. And here we see the Tuckahoe Canal Company insisting that their privileges are invaded by the chartering of the Tuckahoe and James River Rail Road Company. If these pretensions are listened to, there will soon be an end of the necessary improvement of the country. But they are without foundation. Monopoly is not a matter of inference. It must rest its pretensions upon express grant. It is a restriction upon common right, and upon legislative power, and cannot be implied. What then is here insisted on? Is it a monopoly of the right to take tolls for the transportation on the canal? If this be all, we cannot again say it. The canal is their own property; and property necessarily implies a right in the owner, to the exclusion of all others. Is it a monopoly of the right to the transportation of the Tuckahoe valley? If so, the claim is not admitted. Upon the principles maintained by their own counsel, it is denied. What right, upon those principles, has the legislature to take from the colliers the liberty of transporting their coal by wagons, or in any other mode they may elect? What right to prevent their purchasing from the landowners the necessary ground, and con-. structing a rail road without a charter? So far as respected the Canal Company, the Rail Road Company needed no charter to legalize their operations, if they did not cross the canal. It was only necessary to enable them to condemn the lands of others, and to sue and be sued. They do not derive their right to make such a road for transportation of coals from legislative grant. They would have had that without it, and it could never be affirmed, that a charter to them invaded the previous charter, since so *far as the Canal Company are concerned, a charter would have given them nothing more than they had before, viz. a right to withdraw their coals from the canal transportation, and to transport them by land for themselves and others, according to their own pleasure and ability.

: ' ¡ 1 : ] J After the very able and comprehensive investigation of this subject in the case of The Charles River Bridge v. The Warren Bridge, it would be superfluous as well as vain for me to attempt to enforce by any arguments of mine, the principles established by the majority of the court, and sustained with such conspicuous ability by the counsel for The Warren Bridge. It will suffice for me to refer to that case, and to express my assent to the proposition it establishes, that the incorporation of a company for the construction of a bridge or other improvement, where the public interest is concerned, is not to be construed as conferring exclusive privileges, where none such are expressly given by the charter; and, by consequence, that by charters of this description the legislature is not deprived of the power of granting other charters to other companies, even side by side with the former, and in the same line of travel, provided there is no express restriction upon their power in the first act of incorporation. Every principle of sound policy, indeed, forbids that this should be lightly done; or that it should be done without securing some indemnity to those who suffer under such legislation: But it is not matter of right in the company; it is matter of discretion in the legislature; and hence, it is very clearly no matter for judicial decision. The injury done is not more direct than that which is in various instances occasioned by laws of unquestioned validity. The inns and villages upon every public road fall into dilapidation and ruin, upon the change of the course of travel by the construction of a rail road, and flourishing towns which have risen to wealth and importance *on the faith of public taw; by being made a port of entry, sink into insignificance upon the removal of their custom houses to more favoured spots. Yet who doubts the power, though many may doubt the wisdom of the legislature, in making ill advised changes, which bring ruin upon the enterprising, and misery upon thousands? This sport with human prosperity and happiness, indeed, cannot be too much reprobated; but its corrective is to be found elsewhere, and not here, unless the legislature transcend its power; and we have already seen, that unless exclusive rights are contracted for, the legislative power is without a trammel.

The case before us, however, is unlike any that has heretofore occurred, in one very important particular. The Tuckahoe Rail Road Company set up a pretension to run their road across the canal, on a bridge of a certain elevation. They are not content with passing on side by side with their rival, but they assert a right by their charter to cross his line of improvement. This brings us to the inquiry, how far the legislative power is adequate to the grant of such a right? And here, I imagine, the right of eminent domain, which rides over every other, will be found sufficient for the purpose. It is well observed by my brother Brooke, in his lucid opinion in the case of Stokes v. Upper Appomatox Company, 3 Leigh 337, on the subject of the jus pub-licum, that “though our institutions and laws are justly tenacious of private rights, yet the ruling principle of them is, that where private rights come in conflict with public, the former must yield to the latter; in which event, the legislature alone is competent to make compensation.” It may, indeed, be truly said, that this jus publicum, this eminent domain, is the law of the existence of every sovereignty. It is as vital to it as air to animal life; and hence, it has no limit but the necessities of the body politic, of which that body alone must be the judge. It is absolute over the persons, as well as *the property, of its members. It commands the sacrifice of life, as well as the surrender of possessions; and it would be strange, indeed, if to that sovereignty which can compel me to lay down my life in its service, the power should be denied of taking my property for its uses. At this time of day, it is too late to set up any barrier to that power. It has been in constant exercise since the existence of society, and must continue unrestricted so long as society shall last. It has been exerted in the establishment of every common road through the country; in the erection of public buildings, the condemnation of land for public improvements, the em-pressment of property flagrante bello, and in various other modes not necessary to be here stated. In its exercise, however harsh, it never has been deemed to be a violation of individual right, or a breach of contract with the subject, either express or implied. For though the sovereignty has granted its land, or its privileges, without an express reservation of a right to take them for public uses, yet that right is necessarily implied ; and even if alienable at all, it is not to be presumed to be surrendered without an express abandonment. As was observed by chief justice Marshall of the taxing power, “The whole community is interested in retaining it undiminished, and that community has a right to insist that its abandonment should not be presumed where the deliberate purpose to abandon does not appear.”

It seems to be supposed, however, that the rights of the Canal Company which are called a franchise, cannot be invaded, though the power to take other private property for public uses may not be denied. It is proper, then, to come to a proper understanding of this word franchise, that we may the better comprehend what is to be regarded as trenching upon it. Now, I take a franchise to be, 1. an incorporeal hereditament, and 2. a privilege or authority vested in certain persons by grant *of the sovereign, (with us, by special statute) to exercise powers, or to do and perform acts which without such grant they could not do or perform. Thus, it is a franchise to be a corporation, with power to sue and be sued, and to hold property as a corporate body. So it is a franchise to be empowered to build a bridge, or keep a ferry, over a public stream, with a right to demand tolls or ferriage; or to build a mill upon a public river, and receive tolls for grinding &c. But the franchise consists in the incorporeal right; the property acquired is not the franchise. A bank has a right to purchase a banking house: when purchased, is the house a franchise? Surely not, for it is corporeal, whereas a franchise is incorporeal. So of a rail road company: it has the franchise to condemn land for its road, which at once becomes vested in the company in absolute property; but the land is not the franchise. It is real property held by the company upon the same implied terms, on which others hold their lands, that it may be taken for public uses upon compensation being made. Indeed, in former days, the eminent domain in the establishment of roads was exercised (as we are reminded by judge Brooke in the case before cited) without compensation ; but it is now very wisely and justly provided by the constitution, that in all cases where private property is taken for public uses, just compensation shall be made to the owner for his loss.

It is not then perceived that the property of a corporation is less liable to the exercise of the jus publicum, than the property of a private individual. In both cases, the private right must yield to the necessities of the public, and in both the public must make compensation for the loss. In the former, indeed, the necessity is more apparent ; for were it otherwise, the greatest mischiefs would ensue. The James River Canal running east and west, and the rail roads running north and south, might very seriously impede the intercourse ^'between the different parts of the state, if the companies have the right to prevent the passage across their line of improvement, and the jus publicum cannot be exercised in the creation oí new roads to meet the growing exigencies of the country. A person fifty yards from his mill, or county courthouse, may be driven to the necessity of travelling miles around to reach them, or of submitting to the unreasonable exaction of a monopolist. It would be difficult to make him comprehend, how the legislative power could extend to taking away his land to make the rail road, and could cut him off from his ordinary comforts and conveniences, and yet be inadequate to the exercise of the eminent domain in giving him a right of passage across the line of the improvement thus constructed to his detriment.

Upon the whole, therefore, I think it was competent to the legislature to empower the Rail Road-Company to cross the line of the canal, whether the Canal Company be regarded as the proprietors of the soil, or of a mere right of wajr. If they are proprietors of the soil, then they hold it by the same tenure that every man holds his land; that is, subject to the jus publicum. If it is a mere right of way to which they have title, the argument applies with yet more force, since the power to condemn the land itself is greater than that of condemning an easement upon it. In the exercise of this power, however, it must never be forgotten, that a just compensation for rights or property condemned must always be made.

But several questions here present themselves: 1. Is it necessary to the validity of the act, that compensation should be provided before the property can be taken? The constitution provides, that the legislature shall pass no law whereby private property shall be taken for public uses without just compensation. And although there is no express requisition that the act which invades the right shall provide the indemnity, yet, after *much reflection, I incline to the opinion that it should do so. The instances which may occur flagrante bello, of impressments and destruction of property, though at first view they may seem to indicate a different construction, yet are rather to be referred to the necessities which war imposes, when the safety of the state is the supreme law, and justice is silenced by the din of arms.

2. Conceding, as I readily do, that the question of compensation is a judicial question, and that it is not in the power of the legislature to settle it, since this would be to unite judicial and legislative powers, and to enable the government to decide in its own' case, it may next be asked, whether an act invading private property, will be held to be void, when it clearly appears to the judicial tribunal, that no injury is done, and nothing taken, which will entitle the party to compensation? To this I should answer in the negative; for however proper and prudent it might be to provide for the establishment of that fact by the ordinary proceedings, yet if, upon full investigation before the proper tribunal, no injury should appear, we should be justified, I think, in considering the statute as not in conflict with the spirit of the constitution.

In the present case, however, these ques-1 tions are unimportant, if it shall appear that by the Rail Road charter a method is provided for ascertaining and making compensation for property necessary for the road. Now, this I think clear, by the reference in the charter itself, to the general rail road -law, as the law of the company. According to that law, they are bound to proceed to condemn the lands necessary for their road. If the Canal Company are the owners of the soil where the road passes their line of improvement, the Rail Road Company should have it condemned as their property; if they are not the owners of the soil, they should have proceeded to condemn the property as mr. ^Wickham’s property, or have purchased his rights by private contract; and in either case, they would hold subject to the easement of the canal, precisely as he held it. The record does not shew how this matter is, nor is it material to the question we are considering; for the charter having duly provided for compensation, it is not void, although the company may have failed to pursue its provisions. That is a matter to which I shall have occasion presently to refer.

We proceed next to inquire, whether the charter authorizes the Rail Road Company to cross the line of the canal. This must be decided by reference to several acts: 1. the charter itself, which fixes one terminus of the road at mrs. Ellis’s land: the other terminus is declared to be such point on the James River canal as the Rail Road Company may select. 2. It then vests in the company the liberty to construct their road subject to the provisions of the general rail road law. 3. By the provisions of that statute, the company have a right to enter upon all lands through which they may desire to conduct their road, and to lay out the same according to their pleasure. By this provision, then, they were invested with unlimited power to locate the road between the two termini as they pleased. If, then, the location so made crossed the canal, the law authorized them to cross it; and we have already seen that such authority was within the competence of the legislature to give. The only obligations upon the company are to avoid encroaching on dwelling houses &c. and to pay for the property taken.

We have, then, it is conceived, established these two points ; that the Rail Road charter is not unconstitutional, and that it authorizes the company to cross the line of the canal. Upon what terms, is the next question to be solved. And here, there is some difficulty in ascertaining from the record what is the state of the fact. It does not appear whether any proceedings have *been instituted by the company, or the proprietor, for the condemnation of the land and the assessment of damages. Certain it is, that the Rail Road Company cannot pass the canal, without being responsible to the owner of the land for the damages done by the condemnation. In what manner the Canal Company may be entitled to compensation for any injury they may sustain, and to what extent, it would be premature in this case to inquire. Satisfied as I am from the record, that they are not the owners of the soil, either legally or equitably, and that they have only title to an easement, I have no doubt that the land should be condemned as mr. Wickham’s. I am also of opinion, that when so condemned, the title to the land will vest in the Rail Road Company, subject to the easement; and that they will be bound, as mr. Wickham was bound, not to obstruct or impair its enjoyment. Whether it would ■foe practicable for them, if they so desired, to extinguish that easement by any proceeding now known to the law, it is not necessary in the present state of things to inquire. Our only concern is to know, whether they have undertaken to exercise their right of passing the canal prematurely. It seemed to be considered by the counsel, that the condemnation must precede the execution of the work. This is, I conceive, a misconception of the law. The company have a right to proceed with their work before condemnation; and, indeed, there is no absolute obligation on them, to institute the process for assessing the damages to the land, since in case of their default the owner himself may do so. It is, therefore, clear that the work is not to be suspended until the damages are assessed and paid; and this is rendered more undeniable by the 13th section, which in connexion with the previous sections provides, that “in the mean time” (that is, while the process of valuation or assessment is going on) “no injunction shall be awarded to stay the proceedings of the company in *the prosecution of their works, unless &c.” It was not then necessary, that the damages should have been assessed and paid before the company proceeded to the erection of their bridges.

With these views of the law of this case, I cannot perceive that the Rail Road Company have, in any respect, “transcended the authority given by the law,” in proceeding to erect their bridges over the line of the canal. Nor can I perceive, that they have done, or are about to do, any injury to the Canal Company which cannot be adequately compensated in damages. On the contrary, it is palpable, that (apart from the competition, which we have already shewn the Canal Company cannot complain of) there is no injury done them whatever. The rail road bridges are much higher above the water than their own bridges. Every load which can pass the canal bridges will be wholly unobstructed by the rail road bridges, while boats that can pass the latter would be obstructed by the former. It is, therefore, not true that any injury whatever, and much less an irreparable injury, has been done, or is likely to ensue. The interference by injunction was, therefore, improvident, and in direct conflict with the statute, and with the established principles of a court of equity. Iam, therefore, of opinion, wholly to dissolve it, and to dismiss the bill. It will be at its own peril if the Rail Road Company so erects its bridges as to obstruct or impede the easement of the canal. It has not yet done so. When it does, it will be time enough to invoke the extraordinary powers of a court of equity, by shewing the danger of actual and irreparable injury. It will then also be time enough to decide how far the Canal Company have power to extend their easement, either laterally, or by raising their bridge», and removing as a nuisance that which is erected by the Rail Road Company. Those inquiries, at this time, appear unnecessary and premature.

^According to this opinion, the decree of the circuit superior court was right in dissolving the injunction, but erroneous in imposing the restriction as to the height of the bridges. It ought to have been wholly dissolved, as improvidently awarded.

The other judges concurred.

Decree, that the circuit superior court ought to have dissolved the injunction as improvidently awarded, without imposing any restriction as to the height of the bridges, and that the said order is erroneous.  